The days of smart working carried out in Italy since worker posted abroad they do not fall within the calculation of the periods necessary for the application of the conventional pay.
TheRevenue Agency in response toruling number 590 of 15 September 2021, considering the requirement of 183 days in twelve months indispensable to recognize the measure envisaged for workers who work outside the national territory.
It should be remembered that the conventional remuneration is the basis for the calculation of contributions due for compulsory insurance and for the application of taxes due by Italian workers operating abroad, regardless of what is actually received.
The amounts are fixed each year with a specific Ministerial Decree, to an extent not less than the parameters set by national collective agreements of the reference sectors.
The minimum threshold of 183 days, that is the condition a to establish the effective stay of the worker abroad, must be calculated also taking into account the holiday period, holidays, weekly rest periods and other non-working days.
However, in this calculation, the Revenue Agency specifies, the periods of smart working in Italia.
Smart working in Italy of the seconded abroad: when to apply conventional remuneration?
As usual, in answering the question, the Revenue Agency starts from a concrete case.
The applicant is a German company residing in Italy that is asking to be able to apply conventional remuneration, as required byart. 51 paragraph 8-bis of the TUIR, to one of its employees seconded to Germany.
The company, we read in response to the question of 14 September, however, intends to grant the worker periods of smart working in Italy and asks the Agency whether this concession could preclude the recognition of conventional remuneration.
In this regard, the text of the interpello refers to theArticle 15 (1) of the OECD model convention to eliminate double taxation which reads:
“(…) to identify the Contracting State in which the work performance is considered to be actually carried out, it is necessary to have regard to the place where the employee is physically present when he carries out the activities for which he is remunerated”.
It is further specified, then, that the State in which “fiscally recognizes the income“, Ie where this income is taxed, it is not identified in the country where the results of the work performance are used by the posted worker, but where the activity is carried out from which these results derive.
Therefore, if the employee carries out her activity in smart working, even if she is employed by the German company based in Germany, but is physically located in Italy, the corresponding period cannot be included in the calculation of 183 annual days.
“On the basis of what has been illustrated, therefore, in the case in question the requirement to stay in the foreign country for a period exceeding 183 days over a twelve-month period (…) is not considered to be respected if in the aforementioned period Germany performs the work in our country in an agile way, therefore staying abroad for a period not exceeding 183 days “.
In fact, the Revenue Agency concludes.
Conventional remuneration: conditions and requirements referred to by the Revenue Agency
With the response to the request of 14 September, the Revenue Agency summarizes the relevant legislation.
This is the aforementioned Article 51, paragraph 8-bis, of the TIUR which in fact establishes:
“Employee income, provided abroad on a continuous basis and as the exclusive object of the relationship by employees who stay in the foreign country for a period of more than 183 days over the course of twelve months, is determined on the basis of the conventional wages defined annually with the decree of the Ministry of Labor and Social Policies (…)”.
In other words, for workers who work abroad but who continue to be qualified as tax residents in Italy, earned income is taxed assuming as tax base the conventional salary established annually by the aforementioned ministerial decree, without taking into consideration the salary actually received.
In particular, this discipline is applied when the following conditions are met:
- the worker posted abroad must be classified in one of the categories for which the decree of the Ministry establishes the conventional salary;
- the work activity must be carried out abroad with the nature of permanence or of sufficient stability;
- the work carried out abroad must be the exclusive object of the employment relationship and, therefore, the execution of the work is carried out entirely abroad;
- the worker must reside in the foreign country within twelve months for a period exceeding 183 days.
It is precisely this last requirement that is clarified in the response to the question in question: the criterion for identifying the rules on taxation applicable to employment income is that of physical presence of the worker in the State where the work is performed.
- Revenue Agency – response to the interrogation number 590 of 15 August 2021
- INCOME FROM EMPLOYEES PRODUCED IN AGILE WORKING MODE – APPLICATION OF CONVENTIONAL REMUNERATION – ARTICLE 51, PARAGRAPH 8-BIS, OF THE TUIR