With the reply to ruling no. 159 of 28 March 2022, the Revenue Agency underlined that it is possible to access the concessionary regime only where the objective conditions of the new contract (such as work performance, term, salary, etc.) require a new mandatory relationship in place of the previous one, with new and autonomous legal situations which are followed by a substantial change in the object of the service and in the title of the relationship.
The reply in question concerns the application of the impatriate tax regime following the return to Italy after having worked abroad in a posting position.
Conditions to benefit from the regime
Art. 16 of the internationalization decree, as amended by the growth decree, establishes that, to benefit from the special regime for impatriate workers, it is necessary that the worker:
- Transfer their residence to the territory of the State pursuant to art. 2 of the TUIR;
- Has not been resident in Italy in the two tax periods prior to the transfer and undertakes to reside in Italy for at least 2 years;
- Carry out the work activity mainly in the Italian territory.
This article 16 does not explicitly regulate the position of the subject posted abroad who returns to Italy. On this point, the circular of 23 May 2017, n. 17/E, Part II, paragraph 3.1, clarified, however, that subjects who return to Italy after having been seconded abroad cannot benefit from the benefit referred to in the aforementioned article 16 in consideration of the situation of continuity with the previous job position in Italy.
The position taken by the Revenue Agency
With resolution 5 October 2018, n. 76/E, it was then specified that the restrictive position adopted in circular no. 17/E of 2017, aimed at avoiding an instrumental use of the facility in question, not in line with the attractiveness of the law, does not preclude, however, the possibility of evaluating specific hypotheses in which the return to Italy is not a consequence of the natural expiry of the posting but is determined by other elements functional to the ratio of the facilitating rule. This can occur, for example, in cases where:
- the posting is extended several times and, its duration over time, therefore determines a weakening of the ties with the Italian territory and an effective rooting of the employee in the foreign territory;
- the employee’s return to Italy is not “in continuity” with the previous job position in Italy; therefore, upon returning, the employee assumes a different corporate role from the original one due to the greater skills and professional experience gained abroad.
In such cases, in the presence of all the elements required by article 16 of legislative decree no. 147 of 2015, it is believed, in fact, that the specific conditions of return of the employee from abroad, responding to the ratio of the law, do not preclude the worker in a posted position from accessing the benefit provided for by the aforementioned article 16.
In addition to this, with circular of 28 December 2020, n. 33/E, paragraph 7.1, it was specified that the tax benefit in question is not due in the case of posting abroad with subsequent return, in the presence of the same contract and with the same employer.