At the regional tax revenue tax revenue services for the autonomous provinces of Trento and Bolzano At the district offices of direct taxes For service centers in Rome, Milan, Bari, Pescara, Venice, Bologna, Genoa, Palermo, Turin and Salerno Trento Alle central offices of the Department of revenue At the Directorate General for general affairs and personnel At the Department of territory At General Secretary Ai Ministries At the General Accounting Office At provincial accounts Offices of the State At provincial directorates of the Treasury At the Court of Auditors To the Presidency of the Council of Ministers at central service of tax inspectors At central Accounts Offices of the Ministries at the general Command of the Guardia di Finanza Introduction Article. 3 of the Law of 28 December 1995, n. 549, has made a number of amendments and additions to the discipline of income subject to separate taxation in art. 16 of the Consolidated Law on Income Tax, approved by Presidential Decree 22 December 1986, n. 917. In particular, with paragraphs 82 and 83 of Article. 3 aforementioned 'was: 1. replaced the provision in the said Article. 16, paragraph 1, letter b), establishing that for salary arrears are to be understood those paid "for subordinate employees relating to prior years, perceived as a result of legislation, collective agreements, decisions or administrative acts that have occurred or to other reasons not caused by the will 'of the "parts, including the fees and allowances' referred to in subparagraphs. a) and g) of paragraph 1 of article. 47 well 'pensions and allowances referred to in paragraph 2 of art. 46 of the Consolidated Legislation; 2. inserted in said paragraph 1, after the letter c), letter c-bis), concerning the indemnity 'of mobility' in art. 7, paragraph 5, of the law 23 July 1991 n. 223, and the supplementary benefit in art. 1-bis of the Decree-Law of 10 June 1994 n. 357, converted with amendments by Law 8 August 1994, n. 489, paid in advance; 3. integrated the following subsection 3, second sentence, including among the provisions referred to therein as that in the aforementioned letter c-bis) of the same article; 4. integrated art. 18, paragraph 1, first sentence, of the FCA, including among its provisions recalled that in the letter c-bis) of art. 16 of the consolidated text; 5. integrated art. 1, third paragraph, second sentence, of 29 September 1973, n. 600, including among its provisions recalled that in the letter c-bis) of art. 16 of the Uniform Tax Code. More 'recently the Constitutional Court, in its judgment of 11 July 1996, n. 287, stated the illegitimacy 'partial constitutional article. 16, paragraph 1, lett. b) of the Uniform Tax Code in so far as it does not extend between the incomes allowed to use the special scheme of separate taxation of the allowances' expected unemployment art. 47, paragraph 1, lett. e) of the Income Tax Consolidation Act. In relation to the above, in order to ensure uniform application of those regulations and to issue instructions to the unique changes about the effects of the aforementioned constitutional judgment, they provide the following clarifications. arrears emoluments With the modification of paragraph 1 of the premise are indicated exhaustively the conditions under which the belatedly paid compensation of employees can benefit from the special scheme of separate taxation provided for by the aforementioned art. 16, paragraph 1, letter b) of the Uniform Tax Code, which in the previous wording did not provide the notion of "arrears emoluments", but merely make general reference to "arrears fees related to prior years for subordinate employees." It 'well known that for the species exists incomes on a cash basis, under which they must be taxed in the same year in which they are paid. To mitigate the negative effects which would result from a strict application of this criterion was established - already 'with the provisions of Art. 12, first paragraph, letter. d), the abolished September 29, 1973, n. 597 - that in the event of arrears emoluments tax were to apply separately from other income held in the same tax year and, piu 'precisely, applying to them the rate corresponding to the' destination of the total net income owned by the taxpayer in the biennium before that of the commissioning fee. In order to avoid, however, that the above basis was used with finalita 'elusive, the tax authorities - from the first instructions given in Circular 1 / RT of December 15, 1973 - after stating that he could not invoke the 'implementation of separate taxation whenever the payment in a subsequent tax period was inherent to the type of compensation, had to say that for arrears emoluments had considered all those funds which, for effect of laws, contracts, judgments, promotions, changes in qualification or other similar title, were paid for services related to prior years following that in which they were put in charge. Based on this criterion it was consequently claimed that the particular system of separate taxation could not be applied to those emoluments which delayed perception was not justified in any of the aforementioned securities. The majority of cases of the Tax Commission, confirmed by the Supreme Court, but has consistently highlighted as the arrangement of that question was general provision, applicable to any amount spent in a taxable year following the year in which the payment It should have taken place. This' being so, in order to overcome the cennato conflict of interpretation, with the art. 3, paragraph 82, of the law in question and 'proceeded to replace the art. 16, paragraph 1, letter b) of the Uniform Tax Code, providing that notion "arrears fees" that was completely absent in the provision replaced. The new version of the provision in question establishes, as already 'mentioned, which are subject to separate taxation arrears fees, relating to prior years, perceived as a result of legislation, collective agreements, decisions or administrative acts that have occurred or for other reasons not depending on the will 'of the parties. In this way, and 'it is taking into account both the orientation expressed by the prevailing case-law on the notion of salary arrears, both the evolution of administrative practice intervened in the subject matter. About such discipline, it should be noted that situations may in practice be relevant for the purpose in question are - as also stated in the report of the law n. 549 of 1995 - of two types: a) those of a legal nature, which consist in the occurrence of laws, judgments or administrative measures, to whom and 'definitely alien the idea of ​​an agreement between the parties with respect to a reference of all instrumental in the payment of sums due; b) those consisting of objective situations of fact, that prevent the payment of recognized amounts due within the time limits routinely adopted by the generality 'of withholding. By way of example, the hypothesis sub b) are attributable both the total suspension of the payment of wages is not caused by circumstances attributable to the preordained will 'of the employer and employee, but as a condition found serious financial difficulties, both the late payment of the layoff treatment, since the hypothesis due to the adoption of complex procedures, typical of many government agencies. It is confirmed that the application of separate taxation should be excluded whenever the payment of fees in a subsequent tax period must be considered physiological than the required time frame for the delivery of the fees themselves. And 'also useful to point out that the above principles must also be observed as regards the application of the special scheme of separate taxation in case the hypothesis of arrears emoluments regards other income types, which are the fees received by members of workers company 'cooperatives of production and work, allowances' for elected offices of which, respectively, in a) and g) of art. 47 of the Uniform Tax Code, as well as 'the allowances' unemployment referred to in subparagraph e) of the same Article. 47 of the Uniform Tax Code, in accordance 'with the judgment of the Constitutional Court recalled in the introduction. Since 'between the purpose' of the new legislation there 'that is to overcome the current dispute to prevent refund requests arising from supervening legislation, with the transitory provision went by art. 3, paragraph 84, of Law no. 549 of 1995, and 'was determined that relatively arrears emoluments received in previous tax years to 1996 does not result in tax refunds it to the return of already' sums reimbursed. Indemnity 'of mobility' and supplementary benefit with the added provision in the letter c-bis) of art. 16 and the FCA 'was planned placement under the separate taxation of both indemnity' of mobility 'in art. 7, paragraph 5, of the law 23 July 1991 n. 223, that the wage supplement in art. 1-bis of the Decree-Law of 10 June 1994, with amendments, by law 8 August 1994, n. 489, paid in advance. This provision is applicable in relation to the above allowances' and wage subsidies paid from 1.1.1996. The purpose of the provision and 'to mitigate the excessive tax burden, which in the absence of such a provision would occur during the early payment of the sums referred to therein and, ultimately, disposition and' aimed at ensuring greater availability 'financial to those who want to start new productive initiatives. The location of this new legislative provision in Article 16 of the Uniform Tax Code allows the application of the provisions of Art. 18, paragraph 1, of the consolidated text, and that means' the rate corresponding to the goal 'of the net total income of the taxpayer in the two years preceding that in which and' took the perception of the sums. Due to the integration of the provision contained in the last sentence of paragraph 3 of art. 16 of the Uniform Tax Code, The allowance 'and the treatment in question' the applicable part of the final settlement tax by the tax offices the most 'favorable treatment between the regime and the ordinary one of the separate taxation. Finally, in the strength of integration of the provision contained in the second paragraph of the third paragraph of Art. 1 of 29 September 1973, n. 600, the allowances' and the treatment in question must be declared by the recipients only if they were paid by persons who by law have no obligation to make deductions. Allowances' unemployment Regarding the effects of the judgment n. 287, 11 July 1996, by which the Constitutional Court declared the illegitimacy 'partial constitutional article. 16, paragraph 1, lett. b) of the Uniform Tax Code in so far as it does not extend between the incomes allowed to separate taxation of the allowances' of unemployment indicated in art. 47, paragraph 1, lett. e) of the FCA, the writer believes that even in this case is to take the policy, more 'repeatedly stated, both by the undersigned that the Court of Cassation (see. Cass. 23 of 14 January 1988 n. 4223; 28 October 1988 n . 5869), with regard to the ruling no. 42 of 25 March 1980, by which the Constitutional Court had to declare the illegitimacy 'of the rule concerning the liability to Ilor of self-employment income are not comparable to the trade tax. On that occasion and 'it was stated that the declaration of unconstitutionality' affects exclusively on tax reports, pending at the date of delivery, in respect of which the illegitimate rule could still operate, but does not explain any effect in relation to the already 'exhausted relations, for those having to to be those for which it formed the res judicata or has become final administrative act or have elapsed periods of limitation or forfeiture established by the laws that regulate the same relationships. Therefore, the sentence in question does not carry any effect, and consequently the taxpayer is not entitled to a refund of tax paid increased WHEN 'you verses in the following situations: * The payment was made on the basis of an inscription to become role ultimately for failure to appeal within the prescribed period after notification of tax assessment; * Whether it's direct deposit (for self-taxation) for which it intervened forfeiture provided for in Article. 38 of Presidential Decree no. 602 of 1973, for not having the taxpayer made a redemption request to the Regional Directorate of Revenue territorial jurisdiction within a period of eighteen months from the payment, or for not having lodged an appeal against the implied rejection of the tax authorities. * * * The Offices in the address are asked to give maximum publicity to the instructions contained in this circular The Director General of the Department of Revenue ROMANO