Occasional self-employment: new obligation of prior communication. Beware of sanctions.
In order to counter elusive forms in the use of occasional self-employment, the conversion law of the Tax-Labor decree introduces the obligation for the client to make a prior communication to the Labor Inspectorate, competent for the territory, by SMS or e-mail. . For non-compliance, the application of an administrative sanction from 500 to 2,500 euros is envisaged, in relation to each occasional self-employed worker for whom communication has been omitted or delayed. Specifically, the goal is to avoid the abuse of this type of contract in particular economic sectors as a tool to mask subordinate employment relationships and to reduce labor costs.
The conversion into law of the Tax-Labor decree (Legislative Decree No. 146/2021) introduces some changes to a type of contract which, unlike others, has not been the subject of particular interest for some time by the legislator: occasional self-employment.
Born as a contractual form to regulate those collaboration activities that do not fall within the discipline of subordination nor of self-employment relationships or coordinated and continuous collaboration, there is no doubt that over time the occasional self-employment, also thanks to the simplicity of use, it has been used by companies to regulate multiple occasional work situations (from intellectual and creative performances to the occasional business finder) but at the same time abused in particular economic sectors as a tool to mask subordinate employment relationships and to reduce labor costs .
Also thanks to the absence of a prior notification obligation to establish the relationship (and therefore to trace the relationship itself …) and to the free form of the contract, this type of contract is not subject to:
– the accrual of further indirect and deferred remuneration elements, typical of the subordinate employment relationship;
– the payment of contributions (within certain limits of annual remuneration) and of charges and insurance;
– to any legal constraint on the minimum amount of the remuneration, leaving ample autonomy to the Contracting Parties in defining the quantum.
Imagining the evolution of the relationship, what are the elements that characterize this type of contract?
General discipline of occasional self-employment
Occasional self-employment falls within the case of the “work contract”, governed by art. 2222 et seq. of the Civil Code.
From this point of view, the occasional self-employed worker is the person who carries out a work or service for a client, mainly with his own work, without subordination constraints, outside the coordination of the client and without functional integration into his organization.
The contract can be concluded in writing or even verbally, but for the purposes of the test it is always recommended that it be done in writing.
The service in question is also distinguished by the occasional nature of the same (absence of prevalence and habituality), from the self-employed activities usually carried out (although not exclusively), which are framed in the exercise of an art or a profession.
In particular, self-employment activities carried out habitually and professionally, unlike occasional self-employment activities, are always relevant for the purposes of VAT and social security legislation: in fact, the habitual self-employed worker is required, in any case, to opening of a VAT number and a social security position.
It should also be noted that the law does not identify any limit on income, or duration of the service, beyond which the earned income ceases to be considered “occasional” and becomes “habitual”, thus entering the field of application of VAT; however, it must be a relationship in which the parties’ interest ends when the established result is achieved.
Therefore, occasionality is excluded when the relationship is characterized by a lasting interest of the contractor or the client, respectively, to perform or receive one or more services over time (even if not periodic).
The lender, therefore, will be required to open a VAT number if he intends to carry out this activity professionally, systematically and regularly; if, on the other hand, the interest in receiving the professional service is mainly found in the client, then the relationship can only be of subordinate employment (even if discontinuous or on a fixed-term basis).
In any case, it is believed that the examination of the occasional or otherwise nature of the work relationship referred to in Article 2222 of the Civil Code must regardless of the extent of the remuneration and the number of services performed, since even more occasional self-employment services are possible between the same parties (think, for example, of a single fixed-term assignment, which however requires a plurality of services or interventions by the lender).
Contribution and social security regulations
Starting from January 1, 2004, registration and payment to the INPS Separate Management of occasional self-employed workers is mandatory only and if the remuneration received exceeds the amount of 5,000 euros per year, taking into account the totality of all clients.
The contribution burden, according to the rates set out annually for the INPS Separate Management, is set:
– 2/3 at the expense of the customer;
– 1/3 at the expense of the lender.
and the social security taxable amount consists of the gross remuneration paid to the collaborator, less any expenses charged to the client.
For the overall remuneration received during the year exceeding 5,000 euros, the payment of the contribution to the Inps Separate Management will take place in the manner and within the terms provided for coordinated and continuous collaborations.
INAIL insurance discipline
Occasional workers are not subject to the Inail welfare regulations provided for by the Presidential Decree n. 1124/65.
The remuneration received by the occasional self-employed collaborator falls into the category of other income (art. 67 TUIR) defined as “income derived from self-employment activities not exercised habitually or from the assumption of obligations to do, not do or allow” and work performance occasional self-employed persons are subject, pursuant to the DPR n. 600/73, to the withholding tax of 20% upon payment of the fee and by the client
In the event that the occasional remuneration is paid to non-residents, the tax obligations are fulfilled by applying and paying a withholding tax of 30%.
This withholding tax must be calculated on the taxable part of the remuneration, excluding any reimbursement of expenses not subject to Irpef and being a tax, it must be considered definitive and therefore should not be adjusted in any tax return.
The innovations introduced by the conversion into law of the Tax-Labor decree
The conversion law of the Tax-Labor decree, concerning safety at work and inspections, introduces, in order to carry out monitoring activities and to combat forms of evasion in the use of occasional self-employment, the obligation for the client to carry out a prior communication to the Territorial Labor Inspectorate competent for the territory by SMS or e-mail.
The new provision refers to the application of the operating procedures referred to in art. 15, co. 3, Legislative Decree no. 81/2015.
This is the method of communication envisaged for intermittent workers, for whom the possibility of communicating is currently envisaged:
1) On-line from the site servizi.lavoro.gov.it
2) Electronic mail, even if not certified e-mail. THE
5) Fax to the competent ITL, to be used only in the event of a malfunction of the IT transmission systems.
Failure to comply with the new obligation of prior communication is sanctioned in a significant manner: in fact, the application of an administrative sanction from 500 to 2,500 euros is envisaged in relation to each occasional self-employed worker for whom communication has been omitted or delayed and the notice procedure pursuant to art. 13 of Legislative Decree no. 124/2004.