Travel allowance, 50% taxability rate if fixed

The Court of Cassation, with judgement No. 27093 dated 15 November 2017 issued during a Plenary Sitting, intervened on the matter of travel allowance and related taxability and contributory regime. The Supreme Court, overruling its previous stance, consolidated as from judgement No. 396/2012, stated that “habitual travel allowances, payable to operators who, by contract, must carry out their work activities in always different and variable locations, can be subjected to fiscal incentives as per article 51, paragraph 6, of the TUIR and a related taxable amount also for contributory purposes of 50% of their amount, if paid in a fixed amount, independently from the continuity of the payments”. This is valid if, as established by article 7 quinquies of the Law Decree 193/2016 (rule for the authentic interpretation of paragraph 6 of article 51 of the TUIR – Consolidated Tax Act) the following three elements apply: (i) formal element: the workplace is not listed in the contract; (ii) substantial element: the implementation of a work activity that requires the continuous mobility of the worker; (iii) remuneration element: the payment of a “fixed” allowance, paid whether the employee travels or not. If the three conditions are not satisfied simultaneously, then the taxability and contributory regime applicable to travel allowance is the one established in paragraph No. 5 of article 51 of the TUIR, even if the travel allowance is paid on a regular basis.