Compensation for damage to the professionalism of the worker does not constitute taxable income. It is, in fact, an injury that falls within emerging damage and not in the loss of profit
Court of Cassation, Employment Section, Judgement no. 2472 of February 3, 2021
The case originates from a judgment by the Court in Rome that ordered the defendant company to pay one of its employees an amount equal to 50% of her monthly salary for each month of demotion as “non-pecuniary damage to professionalism”.
In view of the company’s only partial compliance with the court order, the employee appealed to the same Court, which granted her request, claiming that the compensation was to be paid gross, contrary to what the company had done.
The Court of Appeal upheld the ruling in first instance, stating that the nature of the claim (non-pecuniary damage to professional skills) or, in any event, its compensatory nature (consequential damages) did not determine that the amounts due could be classified as income from employment pursuant to art. 49(1)of the Consolidated Income Tax Act, Presidential Decree no. 917/1986.
The company appealed to the Supreme Court, claiming that the decision of the Court of Appeal was erroneous in that it held that the damages expressly awarded under the heading of “non-pecuniary damage to professional qualifications” were not in the nature of remuneration.
Moreover, according to the Company, the Court should not have included damages for demotion within the scope of “damages arising” but, on the contrary, within the scope of “loss of earnings”and as such taxable.
The Court of Cassation rejected the appeal and upheld the decision of the lower court.
The Court of Cassation observed that “in terms of professional demotion, non-pecuniary damage is compensable whenever there is a serious violation of the rights of the worker, which are the subject of constitutional protection, to be ascertained on the basis of the persistence of the damaging behavior, the duration and repetition of the situations of professional and personal discomfort, the inertia of the employer with respect to the requests of the employee, even regardless of a specific intent to downgrade him or debase his duties (Cass no. 24585 of 2019)”.
It follows, concludes the Court of Cassation, that “this type of injury belongs to the case of emerging damage, and not loss of profit recognizable in the hypothesis of loss resulting from the non-paymentof income, so it is not considered income subject to taxation (Cass. no. 2549 of 2011; Cass. no. 29579 of 2011; Cass. no. 5108 of 2019)”.