New penalty regime for social security contribution violations: INPS clarifications

In its Circular no. 90 of 4 October 2024, the INPS has provided the long-awaited clarifications on the amendments to the penalty regime for social security contribution irregularities contained, in particular, in Article 116 of Law no. 388/2000, introduced by Legislative Decree no. 19/2024.

The amendments, which has come into force on 1 September 2024, concern in particular the civil penalties applicable in the event of irregularities in the payment of contributions, omissions due to regulatory uncertainties and spontaneous regularization by the employer.

Civil sanctions for omission and contribution evasion

Contribution omission, provided under Article 116 (paragraph 8, lett. a) of Law no. 388/2000, occurs in the event of non-payment or delayed payment of contributions or premiums, whose amount is determinable from the compulsory reports and/or registrations submitted within the statutory deadline.

In this respect, the above-mentioned decree has modified the civil sanctions regime provided for by article 116, paragraph 8, letter a) of Law no. 388/2000, relating to the non-payment or late payment of pension contributions, providing that “the surcharge shall not apply if the contributions or premiums are paid within one hundred and twenty days, in a single instalment, spontaneously and before any dispute or request by the tax authorities”. The legislator’s intention is to extend the institution of voluntary settlement, already provided for in cases of evasion of contributions, to cases of non-payment of contributions, in order to facilitate and accelerate the credit recovery.

Without prejudice to the ordinary measure of a civil sanction equal to the official reference rate increased by 5.5 points per year, up to a maximum of 40 per cent of the amount due, in order to encourage compliance, it introduced a facilitating measure whereby, if payment is made in a single instalment within one hundred and twenty days of the legal due date, in a spontaneous manner, i.e. before any disputes or requests by the tax authorities, the 5.5 points increase in the official reference rate does not apply.

Article 116 (paragraph 8, lett. b) of Law no. 388/2000 establishes that the hypothesis of tax evasion arises in the case of non-payment of contributions or premiums due in connection with registrations, reports or compulsory declarations that have not been submitted or that are not truthful.

With regard to the civil sanctions applicable in this case, if the taxpayer does not spontaneously take steps to regularize his/her situation regarding the obligation to pay contributions, the provision provides, without any change with respect to the previous regime, for a sanction equal to 30 per cent of the amount of the contributions or premiums not paid on the due dates established by law, on an annual basis, up to a maximum of 60 per cent of the amount due.

On the other hand, in the case of the active regularization “i.e. ravvedimento operoso”, already regulated by the second part of Article 116 (paragraph 8, lett. b) of Law no. 388/2000, has been subject to a rescheduling of the deadlines for the payment of the contributions due. In fact, it is confirmed the provision according to which, in the event of a report made spontaneously, prior to disputes or requests by the tax authorities, of the debt situation within twelve months of the deadline for the payment of contributions and premiums, the civil penalties for evasion are downgraded to an omission calculated at the official reference rate increased by 5.5 points if the payment is made as a lump sum within the term of thirty days from the notification and, furthermore, the further provision is introduced that, where the payment is made as a lump sum within the longer term of ninety days from the notification, the measure of the civil sanctions due is equal to the official reference rate increased by 7.5 points.

For both omission and evasion of contributions, INPS clarifies that the new rules introduced by the decree are applicable with respect to contribution violations related to periods starting from 1 September 2024.

Civil sanctions for omissions resulting from regulatory uncertainties

The decree under review also amended the regime of civil sanctions in the event of non-payment or late payment of contributions or premiums due to regulatory uncertainties and, in particular, in relation to conflicting case law or administrative guidelines on the recurrence of the obligation to pay contributions, subsequently recognized in judicial or administrative proceedings.

The provision for a sanction equal to the official reference rate increased by 5.5 points, with the application of the ceiling of 40% on the amount of contributions or premiums not paid by the legal deadline, which will continue to apply until the end of the accrual period in August 2024, has been replaced by the lower amount consisting only of the legal interest pursuant to Article 1284 of the Italian Civil Code, provided that the contributions or premiums are paid within the deadline set by the tax authorities.

In this case too, the changes are effective as of 1 September 2024.

Regularization agreed with the INPS

The taxpayer who regularizes anomalies, omissions and errors, in the manner and within the terms that will be defined by an appropriate resolution of the Institute’s Board of Directors, shall be liable to pay a civil sanction:

• in case of contribution omission, equal to the official reference rate and, in any case, not exceeding 40 per cent of the contributions or premiums not paid by the due date,
• in the event of contribution evasion, equal to the official reference rate increased by 5.5 points and, in any event, not exceeding 40 per cent of the contributions or premiums not paid by the statutory due date.