Embassies and IRPEF payment. Recent jurisprudence proves the employees right
In a previous article (click here to read it) we had explored the issue of the omitted declaration of income from work received by the Italian employees of the Embassies and Consulates, for the purpose of paying the IRPEF, following the numerous notices of assessment sent by the Revenue Agency – Collection about four years ago.
In this article we highlighted the existence of a legal conflict between Italian legislation (which provides for the taxation of all income of individuals resident or domiciled in Italy, regardless of nationality) and the principle established by art. 49 of the Vienna Convention, which provides for the complete tax exemption of the income of members of Embassies and Consulates, regardless of nationality and country of residence.
We concluded by affirming that all the exceptions and restrictions (citizenship, residence, etc.) provided for in the national laws, in contrast with the principle established by the Vienna Convention, are inapplicable and, consequently, make the requests made by the Revenue Agency illegitimate notices of assessment.
In the various cases dealt with, both the Provincial Tax Commission of Rome and the Regional Tax Commission of Lazio accepted the appeals presented by our firm against the notices of assessment notified by the Revenue Agency to some employees of the Indonesian Embassy to the Holy See , confirming the observations reported above.
The decision of the CTP of Rome
In particular, the Provincial Tax Commission of Rome, in sentence no. 8039/2019, affirmed the principle according to which the rules provided for in international conventions are hierarchically superior to those provided for in the national sources contrasting with them, thus making the latter inapplicable.
The case under examination was that of an employee of the Embassy of Indonesia to the Holy See, located in Rome, who had received an assessment notice from the Revenue Agency as a result of the non-payment of IRPEF and municipal surcharges and provincial.
The Provincial Tax Commission – by canceling the notices of assessment – endorsed the reasons formulated in the appeal, affirming the evident contrast between the Italian legislation applicable to all citizens earning income on Italian territory (articles 2 and 3 of the TUIR) and the Vienna Convention of 1963, as well as the bilateral convention between Italy and Indonesia on the prohibition of double taxation.
In particular, in our appeal, it was stated that:
- The employee was an Italian citizen, residing in Italy, but exempt from paying taxes on salary, obtained as consideration for the services rendered, as the work was performed at the Embassy of Indonesia accredited to the Holy See (therefore NOT at the ‘Italy and, therefore, not in Italian territory).
- the property – the employee’s workplace – located in Rome, was owned by the Embassy of Indonesia and, being accredited to the Holy See, was subject to the principle of the extra-territoriality of diplomatic representations.
Confirmation on appeal by the CTR of Lazio
Even the Lazio Regional Tax Commission – called to decide on the appeal filed by the Revenue Agency against the sentence of the CTP of Rome discussed above – confirmed, with sentence no. 1627/2022, the same reasons expressed in the decision taken by the CTR of Rome and the consequent cancellation of the notices of assessment notified to the taxpayer.
Conclusions
These decisions represent a decisive shift in jurisprudence towards the recognition of an evident contrast between national and international legislation which, to date, has only led to a multitude of assessment notices and as many appeals to the Tax Commissions by Embassy officials. and Consulates.
In the opinion of the writer, requests for payment of IRPEF and additional taxes to members of Embassies and Consulates are, in most cases, without legal basis and legitimize the appeal to the competent judicial offices.
However, it should be remembered that the employment positions of employees of embassies and consulates are not all the same and require prior ad hoc advice to establish whether or not they are exempt from national and local taxes.
Extrajudicial and judicial remedies
It should be remembered, however, that the taxpayer can oppose the notices of assessment notified by the Revenue Agency, notifying the aforementioned Body, with the assistance of a Lawyer, an appeal / complaint – in the event that the disputed sums are lower than € 50,000.00 – or just an appeal (in the case of higher sums) and requesting the cancellation or correction of the assessment notice.
In the event of an omitted / negative response from the Revenue Agency within the following 90 (ninety) days, the citizen must file the aforementioned appeal with the territorial Provincial Tax Commission within the next 30 days.
Our law firm offers all officials, diplomatic agents and employees of Embassies and Consulates who have received an assessment notice for non-payment of IRPEF and additional taxes, complete legal advice and the necessary legal assistance in all competent judicial offices.
