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Article 1, paragraph 182, of the stability law 2016 (208/2015) provides that unless expressly waived in writing by the employee, bonuses are subject to a substitute tax on personal income tax (Irpef) and regional and municipal surtaxes of 10 percent, up to a total amount of 3,000 euros gross (4.000 if equal involvement of workers in the organization of work is envisaged) result bonuses of variable amount whose payment is linked to increases in productivity, profitability, quality, efficiency and innovation, measurable and verifiable on the basis of the criteria defined by the Ministerial Decree of March 25, 2016, as well as amounts paid in the form of participation in the company's profits.
According to Article 1, Paragraph 186, this concessional provision applies to the private sector and can be enjoyed by wage-earners who have not received, with reference to the tax period preceding the disbursement, income exceeding 80,000 euros gross.
Pursuant to Article 1, paragraph 187, for the purpose of the application of the facilitative provision, performance bonuses must be paid in execution of company or territorial contracts entered into by the comparatively most representative trade union associations nationwide and, for company collective contracts, by their company trade union representatives or unitary trade union representation. If the company lacks internal trade union representation, it may enter into a company collective agreement with the territorial representations of some local trade unions or unilaterally adopt the territorial industry contract. If it does not, it may adopt the territorial contract that it deems to be the most adherent to its reality, notifying the workers (Internal Revenue Service response No. 176 of March 16, 2021).
Article 1, paragraph 184, gives the employee an additional choice in relation to performance bonuses, in that, in addition to the possibility of availing of substitute taxation, instead of ordinary taxation, the possibility of choosing whether to obtain the bonus in cash or in kind is also recognized.
The timing of the signing of the agreement is important for the purpose of recognizing the tax break. Among the prerequisites for favorable taxation, i.e., for conversion into welfare goods and services, it is also necessary, that the parameters whose values are to be increased at the end of the period taken as a basis for the vesting of the bonus are not posthumous with respect to the period itself and, therefore, that at that time their value is uncertain using the ordinary indicators and tools of business analysis.
The Ministerial Decree March 25, 2016, in Article 2, paragraph 2, lists only some criteria for measuring the incremental indices that may be provided for by company or territorial bargaining to which bonuses must be commensurate. Consequently, it is up to the second-level collective bargaining agreements to provide the specific measurement criteria based on the characteristics of each economic sector or company, as well as the verification of these increments.
The Internal Revenue Service, with the resolution 78/E of October 18, 2018 specified that at the end of the period stipulated in the contract, the so-called congruous period, i.e., accrual of the bonus, it is not sufficient that the target set by the second-level bargaining is achieved, since it is also necessary that the result achieved by the company is incremental compared to the result before the beginning of the congruous period.
The length of the congruous period is left to second-level bargaining and can be indifferently annual, interim or ultra-annual since what matters is that the result achieved by the company in that period is measurable and is better than the result prior to the beginning of the period.
The congruous period in the Covid-19 era.
Just with reference to the congruous period, the Internal Revenue Service, with the answer to interpellation no. 270 of april 20, 2021, ruling on the subject of the preferential taxation scheme for performance bonuses of variable amount, paid in execution of company agreements, clarified that the redetermination of the congruous period due to the epidemiological emergency from Covid-19, attested in the company agreement, does not preclude the application of the preferential scheme itself, since the duration of the bonus vesting period is entrusted to the agreement of the parties.
In essence, the Internal Revenue Service clarified that the redetermination of the congruous period as a result of the Covid-19 contingency does not preclude the application of the preferential taxation, as the length of the premium vesting period is left to the agreement of the parties.
The case addressed is that of a company whose supplementary agreement entered into in 2019 had chosen EBITDA value as the indicator (when comparing 2018 and 2019 figures). Pending the renewal of the agreement for 2020, the previous one was extended, assuming the comparison between the EBITDA of 2020 and that of 2019, but then came the pandemic and with it the emergency legislation, which in the present case resulted in the total blockade of the activities of the specific company.
It thus emerged that EBITDA in 2020, due to factors entirely exogenous to business management, could not be comparable with the same indicator from the previous year. The OO.SS. then asked to assess the possibility of making corrections, and this resulted in a modification of the element assumed as a calculation criterion in order, the interpellation reads, to "take into account the impacts on the Company's business caused by the prolonged closure of the network of stores."
The above resulted in the recalculation of the 2019 EBITDA by reducing it in proportion to the number of days of suspension of activity in 2020: thus, the revised 2019 EBITDA was homogeneous with that of 2020 allowing a realistic comparison between the two magnitudes that allowed the company's employee bonus to be safeguarded.
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