Fictitious Service Agreement: Analysis of Judgment No. 22233 of 2024

The recent judgment No. 22233 of August 6, 2024, issued by the Court of Cassation, offers important clarifications regarding fictitious service agreements and the responsibilities of the contracting party. In particular, the Court has established that in such circumstances, the contracting party assumes the position of employer, with all the resulting legal and fiscal consequences.

Regulatory Context and the Judgment

The judgment is part of a complex regulatory framework, where service agreements can often mask situations of subordinate employment. The Court referred to Article 23 of Presidential Decree No. 600 of 1973, which obliges the user to withhold taxes on income from work. This aspect is crucial, as it clearly establishes the liability of the contracting party, even in the absence of formal recognition of the employment relationship by the worker.

In general. In the case of a purely fictitious service agreement, the contracting party, as the user of the work performed by the contractor's employees, assumes the actual role of employer and is therefore subject to the related obligations, including the withholding of taxes pursuant to art. 23 of Presidential Decree No. 600 of 1973, regardless of whether the individual worker has, with positive outcome, exercised the action pursuant to art. 29, paragraph 3-bis, of Legislative Decree No. 276 of 2003, in force at the time, aimed at the recognition of the employment relationship directly with the contracting party.

Practical Implications of the Judgment

This judgment has various practical implications for employers and contractors. It is essential for companies that use service agreements to understand the risks associated with non-transparent management of employment relationships. In particular, the following aspects are highlighted:

• Obligation to withhold taxes on workers' income, even if formally employed by a contractor.
• Liability in case of disputes by workers, who may seek recognition of the employment relationship directly with the contracting party.
• Possible need to restructure service agreements to ensure compliance with current legislation.

Conclusions

In conclusion, judgment No. 22233 of 2024 represents an important reference point for companies operating in the contracting sector. It emphasizes how compliance with labor regulations and tax provisions is crucial to avoid legal problems and sanctions. Entrepreneurs and professionals in the sector must pay particular attention to the configuration of service agreements to protect themselves from potential future disputes and ensure proper fulfillment of their obligations.