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Crime of non-payment of
contributions: constituent elements
Court of Cassation, sentence no.
1439 of 15 January 2018
With
sentence no. 1439 of 15 January 2018, the Court of Cassation specified
that the electronic submission of Form 770 alone is not sufficient to
constitute the crime of non-payment of withholding taxes and
contributions. In fact, it is also necessary to prove that the salaries
have actually been paid to workers.
The Court stated the following principles in its sentence:
a) Form 770 and the certificate issued to withholding agents are
documents governed by separate regulatory sources, respond to
non-coinciding purposes and must not be delivered or submitted at the
same time;
b) no box or declaration contained in the 770 forms shows that the
withholding agent attests (even indirectly or implicitly) to having
issued the relative certifications;
c) the circumstantial value of the submission of form 770 alone, for
the purposes of proving that the certificates were issued, is
implicitly and indisputably excluded by the legislator, which would
otherwise have simply punished, by means of a criminal penalty, the
non-payment (over a certain threshold) of withholding taxes resulting
from Form 770 and not only of withholding taxes resulting from
certificates issued to withholding agents.
Supplementary
pension contributions for banks: tax treatment
Court of Cassation, sentence no.
124 of 4 January 2018
With
order no. 124 of 4 January 2018, the Court of Cassation ruled on the
legitimacy of an IRPEF refund requested by a bank employee on the
assumption that his contributions to the supplementary pension fund
were not taxable.
The taxable amount of the benefits distributed by supplementary pension
funds to bank staff also includes contributions paid by the employee,
given their optional nature, since only compulsory pension
contributions, i.e. those paid “in compliance with the legal
provisions”, are exempt from tax in accordance with article
48 of
the current TUIR ratione
temporis.
Dismissal for use of parental
leave to perform a different job
Court of Cassation, sentence no.
509 of 11 January 2018
With
sentence no. 509 of 11 January 2018, the Court of Cassation declared
legitimate the dismissal of an employee who uses parental level to
perform another job, instead of caring for a disabled child.
It reaffirmed the principle that leave cannot be used for needs other
than providing assistance to the disabled. The failure to do so
constitutes an abuse by misappropriation of the proper function of the
law, which can be evaluated by the judge as grounds for dismissal.
In this respect, it does not reveal the fact that the carrying out of
this activity contributes to a better organisation of the family.
Demoting and burden
of proof
Court of Cassation, sentence no.
82 of 4 January 2018
With
sentence no. 82 of 4 January 2018, the Court of Cassation confirmed the
principles on the burden of proof in demotion cases.
In court, proof must be produced by the worker, and the achievement of
said proof can also occur through simple and maximum presumptions of
common experience, such as the long duration of the de-qualification,
repeated requests to the employer for a review or the fact that the
employee’s dissatisfaction was known in the workplace.
Asbestos benefits
for workers offered early retirement incentives
Court of Cassation, sentence no.
216 of 8 January 2018
The
Court of Cassation has ruled that workers offered early retirement
incentives have the right to be informed of the possibility to access
the “asbestos benefits” provided for by the current
regulations for pension purposes, even if the exceeding of the
thresholds legitimising this right was certified after the interruption
of the relationship.
Consequently, the judges of the Supreme Court have established that
workers who were not informed of this possibility are entitled to
compensation.
Employer who pays
omitted contributions during the judgement
Court of Cassation, sentence no.
1457 of 15 January 2018
With
sentence no. 1457 of 15 January 2018, the Court of Cassation ruled on
the “punishability” of the conduct of an employer
who fails
to pay withholding taxes on employees’ salaries, but who pays
them later during the proceedings.
This conduct is not punishable unless payment was made prior to the
entry into force of the reform (Leg. Decree no. 8/2016), which
decriminalised the omissions of payments below the threshold of 10
thousand euros per annum.
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