The absence of a compliance certificate (“visto di conformità”), or an irregularity in its issuance, does not automatically justify recovery of the tax credit used by way of set-off or the imposition of the associated penalties.
In Order No. 26020 of 1 October 2026, the Italian Supreme Court reaffirmed that both the existence of the credit and the taxpayer’s entitlement to it must be established, alongside the actual impact of the breach on the tax authorities’ ability to carry out their checks.
The dispute concerned VAT and IRAP credits used by way of set-off, some supported by a certificate issued by a professional who was entered on the register of authorised certifiers only subsequently, and others unsupported by any certificate. The Italian Tax Authority had sought recovery of the credits, together with interest and penalties, without disputing their actual existence.
The Court upheld the finding that recovery was unlawful. Where the credit exists, the taxpayer is entitled to it, and the irregularity neither impedes tax checks nor affects the determination of the taxable base, the tax due or its payment, the breach is purely formal and attracts no penalty because it causes no substantive harm.
This principle continues to apply following the amendments introduced by Decree No. 50/2017, which provide for the recovery of credits used by way of set-off in breach of the certification requirement. Even under these provisions, the Court held, the actual effects of the conduct must be assessed in each case.
