Court of Cassation, ruling no. 17358 of 3 July 2018
With
ruling no. 1735 of 3 July 2018, the Court of Cassation expressed its
verdict on dismissal for failure to complete the trial period, imposed
on the incorrect assumption of the validity of the relative employment
agreement.
Said dismissal, which involved an open-ended paid employment contract, is not exempt from the application of the regulations governing dismissal, for which the protection rights of the worker are foreseen in Article 18, Law 300/1970, if the employer does not demonstrate the unfoundedness of the dimensional requirements, i.e. those recognised by Law 604/1966, in absence of the necessary conditions for the applicability of the real protections.
Managing directors and liability: establishing jurisdictionSaid dismissal, which involved an open-ended paid employment contract, is not exempt from the application of the regulations governing dismissal, for which the protection rights of the worker are foreseen in Article 18, Law 300/1970, if the employer does not demonstrate the unfoundedness of the dimensional requirements, i.e. those recognised by Law 604/1966, in absence of the necessary conditions for the applicability of the real protections.
Court of Cassation, ruling 3 July 2018 no. 17309
IRPEF personal income tax and the statute of limitation
With
ruling no. 17309 of 3 July 2018, the Court of Cassation pronounced its
opinion on individualising the competent Judge and deciding on the
liability in the case of legal action against a Managing Director (who
is also an employee).
According to the provisions of Article 2396 of the Italain Civil Code, managing directors, when elected by the board or appointed in the statute, the laws that govern the civil liability of the administrators, in relation to the roles entrusted to the same, apply, with the exception of actions exercised on the basis of a working relationship with the company. Therefore, in order to establish the competent jurisdiction during legal proceedings against a managing director, who is also an employee, it is necessary to refer to the genesis of the exercised actions, or more precisely, ascertain if the same appertain to the working relationship or the company (with consequent jurisdiction, respectively, of the competent employment judge and the corporate tribunal).
According to the provisions of Article 2396 of the Italain Civil Code, managing directors, when elected by the board or appointed in the statute, the laws that govern the civil liability of the administrators, in relation to the roles entrusted to the same, apply, with the exception of actions exercised on the basis of a working relationship with the company. Therefore, in order to establish the competent jurisdiction during legal proceedings against a managing director, who is also an employee, it is necessary to refer to the genesis of the exercised actions, or more precisely, ascertain if the same appertain to the working relationship or the company (with consequent jurisdiction, respectively, of the competent employment judge and the corporate tribunal).
IRPEF personal income tax and the statute of limitation
Provincial Tax Commission of Lombardy, Ruling no. 1883/16/2018 of 23 April 2018
TFR redundancy pay to be incurred by the INPS guarantee fund and the direct transfer of companies in crisis
With
Ruling no. 1883/16/2018 of 23 April 2018, the provincial tax commission
of Lombardy, citing a principle confirmed by the appeals section of the
Court of Cassation, announced its verdict on the statute of limitation
for IRPEF credits, which must be paid by the taxpayer by means of a
payment notice. In particular, they underline that the ten-year statute
of limitation is applicable in the event of a final judgement on the
case. Diversely, the five-year term applies in the event of failure to
contest a taxation or tax collection order.
TFR redundancy pay to be incurred by the INPS guarantee fund and the direct transfer of companies in crisis
Court of Cassation, ruling 19 July 2018 no. 19277
Illegal labour brokering: IRPEF to be paid by the effective employer
With
ruling no. 19277 of 19 July 2018, the Court of Cassation, announced its
verdict on the possibility of accessing the TFR guarantee fund,
established by INPS in the event of legal proceedings and the
successive acquisition of the company by another company.
The court underlined that, in the event of access to the TFR guarantee fund by employees that are transferred from a company undergoing legal proceedings to the company purchasing the same company (in accordance with ex-Article 47, paragraphs 4 bis and 5, Law 428/90, waiving the requirements of Article 2112 of the Italian Civil Code), if the previous working relationship has not been terminated by means of a dismissal notice and the employee has successively been re-employed, they cannot access the guarantee funds, even when the TFR redundancy pay results as a liability of the company transferring the ownership rights during the bankruptcy proceedings.
The court underlined that, in the event of access to the TFR guarantee fund by employees that are transferred from a company undergoing legal proceedings to the company purchasing the same company (in accordance with ex-Article 47, paragraphs 4 bis and 5, Law 428/90, waiving the requirements of Article 2112 of the Italian Civil Code), if the previous working relationship has not been terminated by means of a dismissal notice and the employee has successively been re-employed, they cannot access the guarantee funds, even when the TFR redundancy pay results as a liability of the company transferring the ownership rights during the bankruptcy proceedings.
Illegal labour brokering: IRPEF to be paid by the effective employer
Court of Cassation, order no. 17805 of 6 July 2018
With
order no. 17805 of 6 July 2018, the Court of Cassation announced its
verdict on IRPEF personal income tax in the event of illegal labour
brokering.
In said cases, by all effects, employees are considered the employees of the contracting company or sub-contracting company that has effectively used the worker’s services. Therefore, the responsibility falls on the latter parties, as well as the obligation to comply with the legal pay obligations resulting from the working relationship, the national insurance obligations, and the fiscal obligations of the employer, especially in the case of taxation on salaries that are deducted at sourcer.
In said cases, by all effects, employees are considered the employees of the contracting company or sub-contracting company that has effectively used the worker’s services. Therefore, the responsibility falls on the latter parties, as well as the obligation to comply with the legal pay obligations resulting from the working relationship, the national insurance obligations, and the fiscal obligations of the employer, especially in the case of taxation on salaries that are deducted at sourcer.
