With the reply no. 85 of February 17, 2022, the Revenue Agency confirms the possibility of applying the impatriate regime also after a period of posting abroad. The work carried out by the inpatriate must constitute a new work activity. This includes the signing of a new contract for which the employee assumes a corporate role other than the original one.
Benefits recognized only for “new work activity”
The Agency recalled that, as regards taxpayers who return following a posting abroad, the benefit in question cannot be recognized in the presence of the same contract and with the same employer. In the event that, instead, the inpatriate worker carries out a “new” work activity by virtue of the signing of a new employment contract, the same will be able to access the benefit starting from the tax period in which the tax residence to Italy was transferred.
Benefits not applicable in case of “continuity” with the previous job
The Agency also specifies that the facility is not applicable in the event that the subject, even in the presence of a new employment contract, is in a situation of “continuity” with the previous job position held before the expatriation. This happens when the contractual terms and conditions remain in fact unchanged upon return to the employer, such as, for example:
- The recognition of holidays accrued before the new contractual agreement;
- The recognition of seniority from the date of first hiring;
- The absence of the trial period;
- Clauses aimed at not paying the accrued thirteenth month’s salary, as well as the severance pay at the time of signing the new agreement;
- Clauses in which it is envisaged that at the end of the posting, the posted worker will be reinserted within the organization of the posting company and the terms and conditions of employment at the company to which the worker belonged in force before the posting will return to apply.
Case study from the Agency
In the present case, the Agency gave a positive answer to the question of a company manager who returned to Italy after a period of posting abroad at a foreign company of the group, with the assumption of a new employment contract with the Italian seconding company. The worker had worked for the Italian company from 1998 to 2017, holding various managerial roles.
In 2015 he was seconded abroad to a foreign company of the same group. In 2017, he was hired by the posted company and took up the foreign residence with consequent registration with AIRE. He was hired again in 2021 by the original Italian company, which offered him a new employment contract after a trial period and without recognition of seniority for the position held in the past.
The worker’s return to Italy is therefore not a consequence of the conclusion of a period of posting abroad. Indeed, he has entered into a local law employment contract with the foreign company of the group.