The subject of the contributory-tax liability of the sums paid by the employer to the employee in court – and otherwise – undoubtedly presents some profiles of interest of renewed topicality, also in the light of the current process of progressive unblocking of layoffs and consequent recovery of labor law disputes.

As far as transactions are concerned, there are no particular differences in treatment both in the event that these have a novation effect with respect to the original legal relationship rather than merely modifying the aforementioned: where the disbursement of sums is envisaged by virtue of a transaction concluded during o at the end of the employment relationship, these amounts are included in the taxable contribution.

As specified by the INPS on various occasions (Circular dated 16/01/14, message n. 7585/2006), as well as by the Court of Cassation (Cass. n.6663/2002, n.11301/2002, n.3213 /2001), where the sums paid at the time of the transaction are verified in the employment relationship, these retain the original function of consideration for the work performance.

One aspect that may present critical issues and has been the subject of debate is that relating to the cases of sums paid by the employer as compensation for the damage suffered by the employee.

The reference standard is the art. 6 of the TUIR, specifically the provisions of the second paragraph, which provides for the assimilation of the indemnities conferred by way of compensation to the same categories – listed in the first paragraph – in which they belonged to the income replaced or in any case lost due to the damage.

However, it is necessary to make a distinction based on the type of loss caused to the injured party’s assets.

Nulla quaestio in the case of loss of profit; as damage consisting in a loss of earnings deriving from the tort of others, the provisions of art. will apply. 6 which we have already illustrated.

This scope would also include wages not earned by the employee due to an ascertained loss of earning opportunities deriving from an offense by the employer.

Where, on the other hand, it is an emerging damage to the worker’s assets, the sum received by him as compensation is not taxable.

This line is confirmed by a constant orientation of the Court of Cassation (Cass., I civ. 9893/1997, Cass. 19199/2006, Civ. Cass., trib. section 10244/2017) aimed at excluding the sums received from the contribution tax for compensation of a nature other than the loss of income.

However, the Revenue Agency (Juridical Consultancy n. 904-4/2017) specified that the qualification of a specific sum as compensation for an emerging damage or a loss of profit is reserved to the legislator or to the judicial authority.

From this it follows that, in the absence of a specific rule, it will be necessary to refer to the qualification made by the Judge in the jurisdictional ruling that sanctions the right to compensation, overcoming any different interpretation.

Cristina Rota
David Romeo