Effectiveness of Criminal Acquittal in Tax Proceedings: The Intervention of the Constitutional Court (Judgment No. 50/2026)

Avv. Enrico Fontana

Article 21-bis of Legislative Decree No. 74 of 10 March 2000, introduced by Legislative Decree No. 87/2024, has established a significant derogation from the principle of autonomy between criminal and tax proceedings. The provision stipulates that a final criminal acquittal, issued following trial with the formulas “because the fact does not exist” or “the defendant did not commit the act,” has res judicata effect in tax proceedings concerning the same material facts.

With Judgment No. 50 of 2026, the Constitutional Court was called upon to assess the legitimacy of this provision in light of several constitutional parameters, including Articles 3, 24, 53, 97, 102, and 111 of the Constitution.

The Constitutional Court’s Decision: Confirmation with Interpretative Adjustment

The Court declared the question raised with reference to Article 97 of the Constitution inadmissible due to lack of reasoning and found the remaining objections to be unfounded, thereby confirming the constitutionality of Article 21-bis. However, certain issues were deemed unfounded “within the limits set out in the reasoning,” thus qualifying the ruling as an interpretative judgment of dismissal. This means that the provision is legitimate only if interpreted in accordance with the criteria specified by the Court.

1. The Protective Rationale and Safeguarding of the Taxpayer

The Court acknowledged the provision’s protective rationale in favor of the taxpayer. The decision is grounded in the recognition of a general alignment between the evidentiary regimes of criminal and tax proceedings, particularly with regard to circumstantial evidence, which must be “serious, precise, and consistent” both in criminal law (Article 192 of the Code of Criminal Procedure) and in tax law (Article 39(1)(d) of Presidential Decree No. 600/1973). It would be unreasonable to allow a tax judge to reach a finding of liability where the criminal court, on the basis of the same evidence, has already excluded the existence of the fact or the defendant’s responsibility.

2. Analysis of Constitutional Parameters

The Court examined and rejected the main objections raised:

• Violation of the right of defense of the Revenue Agency (Article 24 of the Constitution): The Court held that the fiscal interest is adequately protected within criminal proceedings through the action of the Public Prosecutor. This role has been strengthened by recent reforms (Legislative Decree No. 87/2024), which have enhanced coordination between the Public Prosecutor’s Office and the Revenue Agency and have oriented criminal proceedings also toward tax recovery (e.g., through confiscation or incentive mechanisms linked to the settlement of tax liabilities). Moreover, the Revenue Agency retains the right to participate in criminal proceedings as an injured party.
• Violation of the principle of equality (Article 3 of the Constitution): The Court excluded any unreasonable disparity of treatment compared to Article 652 of the Code of Criminal Procedure, which conditions the effectiveness of an acquittal in civil proceedings on the participation of the injured party in the criminal trial. The difference is justified by the distinct nature of the interests involved. Furthermore, the decision to limit binding effect to acquittals (and not to convictions) was deemed a reasonable and discretionary choice by the legislature, consistent with the enabling law and with the principle of the presumption of innocence.

3. Limits to the Effectiveness of Criminal Res Judicata: Constitutionally Oriented Interpretation

The core of the judgment lies in the interpretative adjustment provided by the Court to safeguard the autonomy of the tax judge and the principle of ability to pay (Articles 53, 102, and 111 of the Constitution). The Court established that the binding effect of a criminal acquittal does not apply in two specific cases:

1. Where the tax assessment is based on legal presumptions typical of tax law. If the criminal acquittal does not stem from a positive finding that the fact did not occur, but merely from the criminal court’s inability to apply such presumptions (such as the so-called “very simple presumptions” under Article 39(2) of Presidential Decree No. 600/1973) or to reach proof “beyond a reasonable doubt,” the tax judge retains independent evaluative authority. In such cases, the acquittal does not negate the historical fact but only reflects the absence of sufficient evidence for a criminal conviction, leaving open the possibility of a tax assessment based on different evidentiary standards and presumptive tools (Supreme Court of Cassation, Criminal Division, Section III, No. 42916 of 11 November 2022; Section III, No. 36915 of 22 December 2020; Section III, No. 44170 of 3 November 2023).
2. Where the acquittal is based solely on the inadmissibility of evidence. If evidence deemed inadmissible in criminal proceedings (e.g., because obtained in violation of criminal procedural rules) is nonetheless admissible in tax proceedings (as it complies with tax law requirements), the resulting acquittal cannot bind the tax judge. The latter may independently assess such evidence for the purposes of the decision (Supreme Court of Cassation, Criminal Division, Section III, No. 4439 of 4 February 2021; Section IV, No. 19496 of 26 May 2025).

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