The Agency has provided clarifications regarding the query raised by a taxpayer, through the request for an opinion concerning the Tax Treatment of the fees received as a National Seconded Expert.
Specifically, the taxpayer asks whether the fees received as an NDE with contributions charged to the budget of the European Union, as referred to in Chapter II of Commission Decision C (2008) 6866 of 12 November 2008, constitute taxable income under Article 51, paragraph 8 of the TUIR Decree.
The provisions of the TUIR
Article 51, paragraph 1, of the TUIR provides that:
“Employment income is constituted by all those sums and values in general, received for any reason during the tax period, even in the form of donations, in relation to the employment relationship”
Paragraphs 5 to 8bis govern the cases in which the work is performed in a location different from the workplace. In particular, paragraph 8 provides that:
“Location allowances and other allowances received for services provided abroad constitute income to the extent of 50%.”
Regarding the figure of National Seconded Experts, the decision of 20 November 2009 of the Agency’s Board of Directors (European Maritime Safety Agency – EMSA) distinguishes between cost-free NDEs, for whom the remuneration and allowances are provided by the public administration to which they belong, and non-cost-free NDEs for whom the Agency pays the allowances as per Chapter III, in accordance with the decision of the European Commission of 12 November 2008, No. 6866.
The ruling in question concerns the correct tax treatment of allowances paid to the applicant, who is seconded to the European Maritime Safety Agency in Lisbon as a non-cost-free SNE, with contribution from the EU budget.
The solution envisaged by the taxpayer
The response to inquiry no. 559, dated November 18, 2022, clarifies the regulatory context in which to frame the allowances received by NDEs. In more detail, the taxability under Article 51, paragraph 8, of the TUIR, applies exclusively to the remuneration of cost-free NDEs and not those with allowances charged to the European budget.
Therefore, the Applicant inferred that the taxing authority of individual states over the remuneration directly paid by the European Union was excluded and, consequently, that these should not be reported in the tax returns of the recipients.
The Revenue Agency’s opinion
With reference to the case subject of this response, it is noted that Regulation (EC) No. 1406/2002 of the European Parliament and of the Council of 27 June 2002, establishing the European Maritime Safety Agency, states in Article 7 that:
“The Protocol on the Privileges and Immunities of the European Communities shall apply to the Agency and its personnel.”
In article 12, such Protocol provides that officers and other agents of the Union are exempt from national taxes on salaries and emoluments paid by the Union.
In the case in object, the secondment is governed by the “Rules applicable to National Experts seconded to the European Maritime Safety Agency”. Such rules were approved on November 20th, 2009, by decision of the Management Board.
The allowances paid to the Applicant, detached as an NDE, are entirely funded by the European Union budget and not by an Italian public administration, with which they have no financial impact whatsoever.
In conclusion, the Agency considers that the allowances under examination do not contribute to the taxpayer’s taxable income in Italy. Therefore, they are not to be declared and taxed in the country.