From 2022, the limit of non-taxability of donations of goods and services in kind to employees provided by art. 51 paragraph 3 of the TUIR goes back to 258.23 euros.
As things stand at present, in fact, neither Law Decree no. 146/2021 (the so-called “Tax-Labor” Law Decree), nor Law no. 234/2021 (the 2022 Budget Law) and not even Law Decree no. 228/2021 (the so-called “Milleproroghe” Law Decree) or, as far as we are aware, the draft of the “Sostegni-ter” Law Decree have provided for the extension of the doubling to 516.46 euros of the aforesaid non-taxable threshold, thus increased limitedly to 2020 and 2021.
It should be borne in mind that pursuant to art. 51, paragraph 1 of the Consolidated Income Tax Act, employee income consists of all sums and values in general, for whatever reason received during the tax period, including in the form of donations, in relation to the employment relationship (the so-called “all-inclusive principle”). Goods and services provided to the employee other than sums in cash are identified by the term fringe benefit in the practice of the tax authorities. However, the last sentence of paragraph 3 of art. 51 of the Consolidated Income Tax Act establishes that the value of the goods sold and services provided does not contribute towards forming employee income if the total amount does not exceed 258.23 euros during the tax period.
Art. 112 of Law Decree no. 104/2020 (the so-called “August” Law Decree) had intervened on this provision, providing that, limited to the 2020 tax period, the amount of the value of the goods sold and services provided by the company to employees that does not contribute to the formation of income pursuant to art. 51, paragraph 3, of the Consolidated Income Tax Act was raised to 516.46 euros. Subsequently, art. 6-quinquies of Law Decree 41/2021 (the so-called “Support” Law Decree), introduced during conversion into law, intervened on art. 112 paragraph 1 of Law Decree 104/2020, replacing the words “Limited to tax year 2020” with the words “Limited to tax years 2020 and 2021“.
On the basis of the above provisions, the doubling of the non-taxable threshold therefore only applies to 2020 and 2021, returning from 2022 to the “original” amount of 258.23 euros.
Having said this, it should be remembered that in the event that, during the tax period, the value of the goods and services in question exceeds the exemption threshold of 258.23 euros, the entire amount recognized and not the excess will be used to form the employee’s income (see Circular no. 59/2008, § 16). For example, if the normal value of the goods and services sold to the employee in the 2022 tax year is 400 euros, the amount that contributes to forming the income is 400 euros (and not 141.77 euros, the difference between 400 euros and the exemption threshold of 258.23 euros).
It should be noted that the aforementioned exemption threshold only concerns disbursements in kind, being instead excluded those in cash (see Circ. Agenzia delle Entrate no. 28/2016, § 2.5.1).
In relation to the exemption threshold, it has also been clarified that (Ministerial Circular no. 326/97, § 2.3.1):
- this provision applies to all fringe benefits, both those determined on the basis of normal value and those determined using conventional methods (e.g. cars granted for mixed use to employees, loans to employees, buildings in use by employees);
- the limit must be considered in relation to the amounts taxable to the employee and, therefore, net of any amounts paid by the latter (including any VAT borne by the employee);
- all fringe benefits received are taken into account, even if deriving from other employment relationships that may have been entered into during the same tax period;
- all fringe benefits received are taken into account, including those deriving from other employment relationships which may have been entered into during the same tax period; goods sold and services provided not only to the employee, but also to a person treated as such (e.g. a pensioner, an unemployed person), as well as to the spouse, children and other family members indicated in art. 12 of the Consolidated Income Tax Act, even if they are not dependent on the employee for tax purposes;
- the employee’s right to obtain fringe benefits from third parties is also considered remuneration in kind.
As a general rule, entitlement documents (so-called vouchers) also constitute fringe benefits for employees (art. 51, paragraph 3-bis, of the Consolidated Income Tax Act).