Art Tax Border: Italy-Switzerland

Context

Abstract This contribution starts from the Cass order. civ., Sec. Unite, of 25 August 2026, n. 24764, to show how the story relating to the introduction into Italy, from Switzerland, of a work of art of high value constitutes a privileged observatory on the relationships between customs law, VAT on imports and the sanctioning system. The 2026 ordinance, however, does not define the merit of the controversy: after the ruling of the Constitutional Court no. 93/2025 and the self-defence annulment of the confiscation order, the parties renounced the appeal and the judgment was declared extinguished. Precisely this "non-decision", however, allows us to enhance the central issue: despite the high degree of economic integration between Switzerland and the European Union, the circulation of works of art and high-value goods continues to encounter a real fiscal border for VAT purposes. The article analyzes the distinction between duties and VAT on imports, the meaning and limits of the EEC-Switzerland Agreement of 22 July 1972, the postponement of the art. 70 d.P.R. n. 633/1972 to customs regulations, the effects of the decriminalization of simple smuggling and, above all, the remodulation of confiscation in light of the principle of constitutional and Euro-unitary proportionality.

Introduction The order of the Cass. civ., Sec. Unite, of 25 August 2026, n. 24764, is a procedurally conclusive but substantially interlocutory provision. It does not resolve the interpretative issue originally referred to the United Sections regarding the survival and operation of customs confiscation in relation to VAT on imports after the decriminalization of simple smuggling; on the contrary, it notes that, in the meantime, the Constitutional Court has affected the regulatory framework with sentence no. 93/2025 and that, following the self-defense cancellation of the confiscation order by the customs administration, the parties renounced the appeal, with the consequent extinction of the proceedings. It is precisely this circumstance that makes the case particularly significant. The story arises from the introduction into Italy, coming from Switzerland, of a painting of enormous value, not declared at customs and with import VAT not paid. It touches on an essential point in Italy-Switzerland relations: the absence or mitigation of duties in trade does not eliminate the relevance of VAT on imports, which continues to mark a clear "tax border line" between Swiss territory and EU territory. The underlying thesis of this contribution is twofold. First of all, the case demonstrates that, even in the context of an intense economic exchange and a consolidated conventional framework between Switzerland and the European Union, a fully operational fiscal border remains for VAT purposes, particularly sensitive for works of art and high-value goods, for which the declarative fulfillment and the correct qualification of the operation take on decisive importance. Secondly, the Constitutional Court ruling. n.

93/2025 can be read as the transition from a substantially automatic confiscation model to a system that is more respectful of the principle of proportionality, especially when the State's fiscal interest has been fully satisfied through payment of the tax, accessories, interest and financial penalty.

The story: from the incident in 2012 to the termination of the judgment in 2026 According to what appears from the documents reported in the 2026 Ordinance of the United Sections, on 3 October 2012 the taxpayer was checked at the Milan-Linate airport while he was introducing a painting of considerable value into Italy from Switzerland, without declaration and without payment of VAT on import, amounting to €448,443.00. At first the criminal proceedings followed; subsequently, as a result of the decriminalization of simple smuggling carried out by Legislative Decree no. 15 January 2016. 8, the criminal trial ended with acquittal because the fact was no longer foreseen by law as a crime, with transmission of the documents to the administrative authority. The customs administration first ordered the seizure and then the confiscation of the property, recalling the articles. 282 and 301 of the TULD in connection with the art. 70 of the Presidential Decree n. 633/1972. The Lombardy CTR believed that the confiscation pursuant to art. 301 TULD had been substantially overwhelmed by decriminalisation, in the absence of express provision of additional sanctions for the resulting administrative offence. The question, due to its systematic importance, was referred to the United Sections first by the Fifth Section with interlocutory order no. 21917/2023 and then, with interlocutory order no. 18284/2024, to the Constitutional Court. The Constitutional Court, with sentence no. 93/2025, declared the constitutional illegitimacy of the art. 70, first paragraph, Presidential Decree n. 633/1972, in the part in which it does not provide that, in case of application of the art. 301 TULD, the things subject to the violation are not confiscated if the obligor provides for the full payment of the evaded amount, the accessories, the interests and the financial penalty.

At that point, the Customs Agency independently annulled the confiscation order and the parties jointly waived their appeal to cassation; the United Sections, with ordinance no. 24764/2026, therefore declared the termination of the proceedings. A point arises that must be expressly clarified: ordinance no. 24764/2026 does not resolve the merits of the question originally submitted to the United Sections, but closes the process due to the lack of interest in the dispute following the decision of the Council and the administrative self-defense.

The Italy-Switzerland fiscal border: position of Switzerland with respect to the customs and VAT territory of the Union Switzerland belongs neither to the customs territory of the Union nor to the common VAT system of the Union. The introduction of goods from Switzerland into Italian territory constitutes, from the Union and national point of view, an "import", with consequent activation of customs regulations and, as a rule, VAT on import. Legitimacy jurisprudence has repeatedly underlined that the 1972 Agreement abolished or progressively eliminated duties in trade between Switzerland and the Community/Union for the relevant products, but "did not include Switzerland in the customs territory of the Community" nor did it eliminate VAT upon entry of the goods. In this sense, already Cass. pen. n. 32111/2023 reiterates that, although customs smuggling linked to duties cannot be configured in certain cases, the possible evasion of VAT on imports remains distinct, subject to the limit of the prohibition of double taxation. On a systematic level, the Civil Court of Cassation has clarified that VAT on importation constitutes an internal tax, although it shares with duties the genetic moment of importation and some procedural and sanctioning specificities. Ordinance no. 21917/2023 in fact highlights that VAT on imports "is the same tax as intra-union VAT", although subject, as a result of art. 70 d.P.R. n. 633/1972, to the sanctioning provisions specific to border rights.

This approach allows us to grasp the core of the cross-border profiles: a full customs border does not operate between Switzerland and Italy in the same terms as relations with any third country unrelated to preferential agreements, but a "VAT fiscal border" still remains. For works of art and high-value goods, this means that the physical passage of the good across the border can determine, except for specific suspensive or temporary regimes, the onset of the VAT obligation and related declaration obligations.

Customs duties and VAT on imports: structural distinction and application consequences One of the major practical misunderstandings in the circulation of works of art between Switzerland and Italy consists in assuming that the absence of duties is equivalent to the absence of import tax. The sources examined by the writer clearly deny this automatism. The Supreme Court recalled that the Court of Justice expressly stated that import duties do not include VAT to be collected for the importation of goods. At the same time, national jurisprudence notes that VAT on imports originates from the fact of importation into the Union and subsequent introduction into the economic circuit of the Member States, but remains distinct from duties, although linked to them in terms of operative event and chargeability. Administrative practice also confirms that, for imported goods, the tax generating event occurs at the time of importation and, when the goods are subject to customs duties, the chargeability of VAT is coordinated with that of duties; this does not mean, however, that the VAT debt depends on the existence of a duty due. This is the decisive point in relations with Switzerland: the preferential agreement can eliminate the duty, but not the VAT. Hence the practical importance of the distinction. A collector or operator may find themselves in a situation where:

• no duty is due by virtue of the conventional regime or the origin of the goods;
• but VAT on importation is still due in Italy, as it is an internal tax collected upon entry of the goods into the territory of the Union.

The absence of this awareness is particularly risky in the art market, where the value of the asset is often very high and where personal transport, specialized shipping or circulation for exhibitions and restorations can lead to underestimating the tax figure.

The EEC-Switzerland Agreement of 22 July 1972: relevance and limits The Agreement between the European Economic Community and the Swiss Confederation of 22 July 1972, concluded with EEC regulation no. 2840/72, has been constantly evoked in the litigation as a parameter for evaluating the import regime from Switzerland. It provides for the gradual elimination of customs duties on imports in trade between the parties, the prohibition on introducing new duties and new taxes with equivalent effect, as well as a regulation inspired by the principle of "commercial neutrality". However, the Court of Cassation has repeatedly ruled out that the agreement prevents the collection of VAT upon entry of goods into Italian territory. In particular, it was stated that VAT on imports has a different financial basis from customs duties, does not constitute a duplication of them, and continues to be due to the State at the time of entry of the goods, unless it is proven that the tax has already been paid previously, with the exclusion of discriminatory double taxation. For the topic considered here, the 1972 agreement therefore performs an ambivalent function: on the one hand, it reduces or breaks down the tariff barrier, favoring trade; on the other hand it does not eliminate the VAT barrier, which remains autonomous. The systematic consequence is that the intense economic relationship between Switzerland and Italy does not translate into full fiscal assimilation. Compared to the EU VAT system, Switzerland remains an external system; therefore, the entry of the good into Italy continues to be, in principle, an event qualified for tax purposes as an import.

Operational details

Art. 70 Presidential Decree n. 633/1972 and customs regulations: the reference to articles. 282 and 301 TULD

The art. 70 d.P.R. n. 633/1972 constitutes the cornerstone of the connection between VAT on imports and customs regulations. The provision establishes that the tax relating to imports is assessed, liquidated and collected for each operation and adds that, for disputes and sanctions, the provisions of the customs laws relating to border duties apply. This postponement has historically allowed the extension to VAT on imports of sanctioning institutions typical of customs law, including the confiscation provided for by the art. 301 TULD in connection with the smuggling hypotheses referred to in the art. 282 TULD. Interlocutory ordinance no. 21917/2023 precisely reconstructs the point: art. 70 recalls the sanctions provided for by customs laws on border rights, also including confiscation, understood in a broad sense as an ablative measure linked to the evasion of VAT on imports. Here a dogmatic knot of great importance emerges. On the one hand, import VAT is qualified as an internal tax and structurally homogeneous with internal VAT; on the other hand, for historical and functional reasons, its procedural and sanctioning regulations are based on customs law rules. This is a regulatory hybridization that explains many of the tensions that have resulted in the question of constitutional legitimacy. On a ratione temporis level, for the events of 2012 the reference discipline was that of the TULD referred to in the art. 70 in the text then in force. Subsequent regulatory developments, including those enhanced by the jurisprudence of 2024-2026, cannot therefore be mechanically back-projected onto the original facts, but are relevant for understanding the change in the interpretative and constitutional framework.

Decriminalization of simple smuggling and the problem of the survival of confiscation Legislative Decree no. 8/2016 decriminalized simple smuggling, opening up the problem of the fate of accessory measures and, in particular, of confiscation in cases of failure to pay VAT upon importation. The question was whether, once the crime no longer existed, the mandatory confiscation of the property subject to the violation could survive in the administrative context. The United Sections, in interlocutory order no. 18284/2024, record the contrast. On the one hand, the administration supported the persistent administrative applicability of mandatory confiscation; on the other, the taxpayer invoked the principle of legality and the unreasonableness of a system that would have retained a very severe ablative measure after decriminalization. Ordinance no. 21917/2023 underlines the particular affliction of customs confiscation pursuant to art. 301 TULD, broader than ordinary confiscation pursuant to art. 240 of the Criminal Code, and recalls its traditional qualification as a safety measure based on the dangerousness of the thing, not on the dangerousness of the subject. But this very framework proved insufficient to neutralize the doubts of proportionality, especially when the confiscation was accompanied by already very high financial penalties and when the debtor had fully satisfied the tax demand. The cross-border case with Switzerland has made the problem even more evident: an asset of very high value, such as a work of art, can be confiscated for VAT evasion on import, with financial effects potentially much higher than the tax due, especially in the absence of residual damage for the treasury after full payment.

Nature and function of confiscation: legality, guarantee and proportionality The jurisprudence oscillates between two readings of confiscation. According to one line, it does not have a sanctioning nature in the strict sense, but constitutes a real security measure aimed at avoiding the further use or circulation of illegal goods. According to another perspective, without denying its formal qualification, its concrete cumulation with pecuniary sanctions and its automatic nature impose a proportionality control similar to that required for administrative and tax sanctions. The United Sections of 2024 grasp the problem well: the fixed and automatic nature of the measure ends up affecting overall different facts in the same way, also neglecting the subsequent conduct of the offender, such as the full payment of the evaded tax and the financial penalties. Hence the doubt of compatibility with the art. 3 Constitution and with the art. 49 of the Charter of Fundamental Rights of the European Union. The Constitutional Court, in sentence no. 93/2025, does not fundamentally eliminate confiscation from the VAT system on imports. Rather, it redesigns its legitimate operation, deeming its maintenance disproportionate when the perpetrator of the offense takes action to remedy the non-payment, paying the tax evaded, the accessories, the interests and the financial penalty. In this case, the guarantee function that can justify mandatory confiscation is lost, since the State has already recovered the entire tax debt.

The decision thus lends itself to being read as a transformation of the model: from confiscation as a substantially automatic consequence of the violation, to confiscation as a measure that must be reversed when the fiscal interest has been fully satisfied.

The ordinance of the United Sections n. 18284/2024: the reasons for the referral to the Constitutional Court Interlocutory ordinance no. 18284/2024 represents the true theoretical crux of the story. The United Sections observe, first of all, that in the specific case the taxpayer had already paid in full both the tax evaded and the administrative sanctions imposed before the adoption of the confiscation order. Starting from this data, the Court highlights that the sanctioning structure resulting from the art. 70 d.P.R. n. 633/1972, in relation to the articles. 282 and 301 TULD, appeared difficult to reconcile with the principles of reasonableness and proportionality. The ordinance compares three plans:

• the VAT regime on imports;
• the internal VAT regime;
• the customs duties regime.

Compared to internal VAT, confiscation does not operate in similar terms, or in any case it can be reversed upon payment of the tax debt pursuant to art. 12-bis of Legislative Decree no. 74/2000; with respect to duties, the Union Customs Code provides that, in the event of confiscation, the customs debt is extinguished, so that the cumulation of the full tax claim, financial penalty and confiscation of the goods appeared excessive. It is particularly important that the United Sections have excluded the practicability of a constitutionally oriented interpretation of the art. 70, deeming the literal reference to customs sanctions insurmountable and therefore referring the matter to the Council. The case thus shows a paradigmatic example of dialogue between the Supreme Court, the Constitutional Court and Union law on a matter with a strong technical-tax density but with clear implications for the protection of property rights.

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Key points

Constitutional Court no. 93/2025: the remodulation of the confiscation Sentence no. 93/2025 of the Constitutional Court constitutes the point of balance reached by the system. The Consulta takes note, in line with EU jurisprudence and legitimacy, of the structural identity between import VAT and internal VAT, despite the different procedural and sanctioning framework of the former. Precisely this identity makes a radically more burdensome sanctioning treatment for import VAT problematic, especially when it involves the automatic ablation of the good even after full compliance. The Court underlines that the principle of proportionality also concerns tax sanctions and is based not only in art. 3 of the Constitution, but also in the EU obligations to which Italy is bound, in particular in the art. 49, par. 3, CDFUE. It specifies that the disproportion found is not "intrinsic" to the confiscation as such, but rather "relative" or "ordinal", in comparison with other sectors of the legal system: the duties regime and the internal VAT regime. The solution adopted is additive: the art. 70 is constitutionally illegitimate in the part in which it does not provide that, in case of application of the art. 301 TULD, the things subject to the violation are not confiscated if the obligor provides for the full payment of the evaded amount, the accessories, the interests and the financial penalty. The systematic effect of the decision is notable. Confiscation remains abstractly compatible with the import VAT system, but its maintenance is no longer justifiable when the purpose of guaranteeing collection has ceased. A model is therefore outlined in which the ablative reaction must give way in the face of full satisfaction of the fiscal interest.

The cross-border implications for the art market between Switzerland and Italy The works of art constitute the ideal terrain for observing the persistent fiscal border between Switzerland and Italy. These are goods: often of very high value; frequently mobile and intended for international circulation; sometimes accompanied by complex documentation or intermediate steps; susceptible to transfer for sale, storage, restoration, exhibition or inheritance. In this context, ordinance no. 24764/2026, although not deciding the merit, retains a strong symbolic and practical importance. Symbolic, because it shows that the system has felt the need to correct, through the Constitutional Court, the excesses of an ablation apparatus designed for traditional customs repression but applied to VAT on imports. Practical, because after sentence no. 93/2025, the position of the operator who has fully paid the amount due is significantly strengthened against the permanence of the confiscation. However, it remains clear that the constitutional decision does not attenuate the substantial obligations of declaration and payment. It does not erase the fiscal frontier; it only makes the sanctioning consequences more proportionate in cases of subsequent full regularization. For the art market, the message is clear: preventive compliance remains essential, but the system can no longer demand, once the tax interest has been fully satisfied, a further and potentially disproportionate financial sacrifice represented by the definitive loss of the asset.

Conclusions The case resulted in Cass. civ., Sec. United, order. n. 24764/2026 demonstrates first of all that the high economic integration between Switzerland and the European Union has not erased the VAT fiscal frontier. Switzerland remains outside the customs territory and the common VAT system of the Union; consequently, the introduction of works of art and high-value goods into Italy continues, as a rule, to integrate a fiscally relevant import. The absence of duties, or their mitigation as a result of the 1972 Agreement, does not imply the absence of VAT on imports, which retains functional and regulatory autonomy. On the sanctioning level, the relationship between art. 70 d.P.R. n. 633/1972 and TULD has for a long time produced a regime of particular severity, culminating in the possibility of confiscation of the property. The decriminalization of simple smuggling brought to light the contradictions of this system, especially when the ablative measure survived in the administrative context even after full payment of the tax and sanctions. Ordinance no. 18284/2024 has correctly transformed this tension into a question of constitutionality; the Constitutional Court ruling. n. 93/2025 responded by imposing a proportionate reading of the confiscation, incompatible with its maintenance once the fiscal interest of the State has been fully satisfied. Finally, perhaps the most interesting fact remains: ordinance no. 24764/2026 is not the final decision on the merits that one might have expected, but the procedural registration of a solution that has now developed elsewhere - in constitutional jurisprudence and administrative self-defense.

In this sense, the "non-decision" of the United Sections confirms the relevance of the case: not for what it formally decides, but for what it allows us to understand about the persistent fiscal specialty of the Italy-Switzerland border and the need, no longer avoidable today, to also subject the customs confiscation applied to VAT on importation to the scrutiny of the principle of proportionality.

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