Criminal acquittal and tax adjudication: the boundaries delineated by the Constitutional Court

Edited by Carlo Romano and Maurizio Foti

By judgment no. 50, filed on 13 April 2026, the Constitutional Court addressed the interplay between criminal res judicata and tax adjudication, clarifying the scope—and, above all, the limits—of Article 21-bis of Legislative Decree no. 74/2000, introduced by the 2024 reform.

The provision accords binding force, in tax proceedings, to a final criminal acquittal delivered after trial under the formulae “the fact does not subsist” or “the defendant did not commit the act”.

In upholding the constitutionality of the rule (the constitutional challenge having been declared unfounded), the Court held the 2024 legislative choice to be reasonable: where the criminal court, following a full and particularly stringent evidentiary assessment, excludes either the existence of the relevant fact or the defendant’s responsibility, the tax court may not adopt an opposing factual reconstruction, lest the coherence of the legal order be compromised.

This, however, is not an automatic transposition. The Court specifies that the binding effect of an acquittal presupposes that the criminal court has carried out an actual fact-finding exercise. On that basis, it identifies two circumstances in which such preclusive effect may be displaced, both stemming from the structural differences between criminal proceedings and tax litigation.

First, where the tax assessment is grounded on statutory presumptions peculiar to tax law—evidentiary instruments that do not operate in criminal proceedings—the tax court may, within those limits, reconstruct the relevant facts autonomously without necessarily contradicting the acquittal. It remains, however, that where the criminal judgment contains a positive finding as to the non-existence of the fact, that finding is not amenable to re-litigation.

Second, where the acquittal is predicated exclusively on the exclusion of evidence under criminal procedural rules, the binding effect does not arise if the same evidentiary material is lawfully admissible and usable in tax proceedings.

Accordingly, the “dual-track” model is not abandoned; it is recalibrated in a more selective manner, seeking to avert inconsistencies while preserving the specific features of the two regimes. In this framework, criminal acquittal is no longer a merely formal element, nor a fact that can be ignored; rather, it constitutes a potentially decisive procedural development, the preclusive weight of which depends on the depth and quality of the fact-finding conducted in the criminal case.

In this articulated setting, taxpayers must promptly and coherently assess the interdependencies between criminal proceedings and tax litigation, avoiding fragmented approaches. The ability to appraise the substantive content of the respective decisions and to devise, from the outset, a consistent defence strategy across the different fora may prove determinative in managing tax risk and in the overall outcome of the dispute.

Against this backdrop—marked by a progressive erosion of the traditional dual-track approach following the introduction of Article 21-bis and the publication of Constitutional Court judgment no. 50/2026—a careful, coordinated appraisal of the parallel proceedings concerning the same underlying facts, from both a tax and a tax-criminal law perspective, will become increasingly indispensable.