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Recognition of the impatriate tax regime at the end of posting abroad

The case resolved by the Italian Tax Office with Answer No. 259 of 11 May 2022 presents peculiar aspects to the cases examined in previous documents of practice concerning the application of the impatriated regime following a period of posting abroad.

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In case of return after being posted abroad, the facility is not precluded when the worker moves to Italy taking a completely different job from the one held abroad.

The clarifications provided by circular no. 33/E of 28 December 2020

Circular No. 33/E of 28 December 2020 clarified that the work performed abroad in a posting position grants the employee access to the special regime for impatriated workers (as in Article 16 of Legislative Decree no. 147 2015), upon the occurrence of all the conditions, in cases in which the posting, extended several times and protracted over time, has determined a weakening of the worker’s ties with the Italian territory and has strengthened, instead, his roots abroad; or if the employee on his return to Italy takes on a new role thanks to the new skills acquired and work experience gained abroad.

The regime does not apply in the event of posting abroad with subsequent return, in the presence of the same contract and with the same employer.

Otherwise, in the hypothesis in which the work carried out upon return constitutes a “new” activity, by virtue of the signing of a “new” employment contract different from the contract in place in Italy before the posting, thus the expatriate assuming a different corporate role than the original one, the same will be able to access the benefit starting from the tax period in which he transferred his tax residence to Italy.

Facilitation not applicable in case of continuity with the previous job

However, it is important to note that, the facilitation is not applicable in the event that the worker, even in the presence of a “new” contract for the assumption of a “new” corporate role at the time of departure, falls into a situation of “continuity” with the previous job position carried out in the territory of the State before the expatriation. This happens, for example, when the contractual terms and conditions, regardless of the “new” corporate role and the relative remuneration, remain in fact unchanged.

As specified by circular no. 17/E of 23 May 2017 (Part II):

individuals who have returned to Italy after being on secondment abroad cannot benefit from the special tax regime in consideration of the situation of “continuity” with the previous job position in Italy.

However, this restrictive position does not preclude the possibility of evaluating specific hypotheses in which the return to Italy is not a consequence of the natural expiry of the secondment but is determined by a substantial change in the object of the service and the title of the relationship for which the expatriate will be able to access the tax benefit in question. One of these hypotheses has now been object of the reply to ruling n. 259 of May 2022.

The position taken by the Revenue Agency with reply n. 259 of May 2022

The answer n. 259 of 11 May 2022 concerns the possibility of using the impatriates regime for a journalist registered with AIRE, residing abroad continuously since 2001. He has collaborated over the years with various Italian and foreign newspapers as a freelance, but without ever returning to Italy.

The applicant moved abroad in 2000, since 2001 he has established, without returning to Italy, with his current Italian employer, a collaboration as an independent professional. From 2012 the collaboration was transformed into an employment relationship with simultaneous posting abroad, without requiring the journalist to leave the country, as the professional was already fiscally non-resident.

The company has now proposed journalist to return to Italy. The transfer to Italy does not envisage a new contract but the modification of the previous one signed in 2012.

However, the job position assumed upon return would be completely “new” both from a professional and remuneration point of view and, therefore, not in “continuity” with the previous one.

In addition, to resolve the matter, it is also necessary to consider the effective roots abroad of the professional who has been away from Italy with his family since 2001.

Ultimately, the Agency believes, the applicant is in a position to take advantage of the treatment provided for workers who move to our country, provided for in Article 16 of Legislative Decree no. 147/2015. The journalist will also be able to benefit from the extension of the tax confrontation for a further five years compared to the ordinary five envisaged in the presence of underage or dependent children.

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Regulatory Framework

Circular n. 33/E of December 28, 2020

Reference (Italian only)

Reply n. 259 of 11/05/2022

Reference (Italian only)

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