We examine a recent ruling by the Italian Supreme Court (Order 34655/2024) on the favourable tax regime for inbound workers: how to claim a refund of the relief even where it was not initially applied through the employer, with regulatory references and legal considerations.
What did the Supreme Court establish regarding the flat tax for inbound workers?
By means of Order 34655/2024, the Court of Cassation confirmed that the failure to request the employer to apply the favourable regime does not preclude the taxpayer from obtaining a refund independently. The only consequence is the inability to use the withholding agent (the employer), not the forfeiture of entitlement to the benefit.
Can I claim a refund if I did not involve my employer?
Yes. The Supreme Court clarified that the taxpayer may submit a refund application directly to the Revenue Agency (Agenzia delle Entrate) to recover amounts not obtained through the employer, provided the conditions for the relief are met (e.g. transfer of residence to Italy, employment activity, etc.).
What changes with clause 5-ter of Article 16 of Legislative Decree 147/2015?
Clause 5-ter prohibits the refund of amounts paid voluntarily by the taxpayer. However, this provision raises constitutional concerns: if the payment was made in error (e.g. through failure to claim the relief), it may not be characterised as “voluntary” and could therefore remain refundable.
What is meant by “amendability of the tax return”?
This is a case-law principle that allows the taxpayer to correct their income tax return in order to claim reliefs not initially applied. The Supreme Court reiterated that the initial omission does not preclude the right to rectify the taxpayer’s position, consistently with this principle.
What risks does the new interpretation of clause 5-ter entail?
The principal risk is a conflict between provisions: on one hand, the right to correct the tax return; on the other, the prohibition on refunds for “voluntary” payments. The Supreme Court has not yet resolved this contradiction, leaving room for potential legal disputes.
How should a refund be properly claimed?
Verify the conditions for the relief (e.g. residence in Italy, type of employment).
Submit a refund application to the Revenue Agency (Agenzia delle Entrate), attaching documentation evidencing entitlement to the favourable regime.
In the event of a rejection, consider judicial appeal, citing Order 34655/2024.
Conclusions
The Supreme Court ruling opens new opportunities, but requires close attention to regulatory developments.