When the fight against illegal work (alone) is not enough

By Emilio Veneziano

Adequacy of labor and construction bonuses

The application of the combined regulations of the Legislative Decree is generating quite a few doubts. 143/2021, implementing art.8 paragraph 10-bis of the Legislative Decree. Simplifications, with art.4 of Legislative Decree 13/2022 published in the Official Gazette. 25.2.2022, n. 47, on the issue of the impact of workforce adequacy on construction bonuses.

In particular, the Legislative Decree 143/2021 provides for the compulsory adequacy DURC starting from 1 November 2021 for every public and private construction site for an amount exceeding 70 thousand euros. The verification of adequacy refers to the incidence of manpower relating to the specific intervention carried out in the construction sector, both in the context of public and private works carried out by entrusted companies, under contract or subcontract, or by self-employed workers involved in any capacity in their execution. The objective of the decree is evidently to fight illegal work and to ensure that the number of workers on site is proportionate to the task entrusted to the company. The above provision has therefore defined a system for verifying the adequacy of the impact of the labor employed in carrying out construction works, implementing the provision referred to in art. 8 paragraph 10-bis of Legislative Decree 76/2020. The adequacy certificate will be issued, within 10 days of the request, by the territorially competent Cassa Edile/Edilcassa, upon request of the entrusted company or the person delegated by it or by the client. If adequacy is not found, a regularization mechanism is envisaged, in the absence of which the negative outcome of the adequacy check referring to the individual work (public or private) affects, from the date of issue, the subsequent checks of contribution regularity aimed at issuing the online DURC for the entrusted company.

This rule was included in article 4 of Legislative Decree 13/2022 published in the Official Gazette. 25.2.2022, n. 47, which integrates the art. 1, Law n. 234/2021 (Financial Law 2022) with the new paragraph 43-bis pursuant to which for the construction works referred to in Annex X, Legislative Decree no. 81/2008 (construction, maintenance, repair, demolition, conservation, rehabilitation, renovation or equipment works, the transformation / renovation / dismantling of fixed, permanent or temporary works, in masonry / reinforced concrete / metal / wood / other materials, including the structural parts of electricity lines and the structural parts of electrical systems, road, railway, hydraulic, maritime, hydroelectric works and, only for the part involving construction or engineering works civil, land reclamation / forestry / earthwork works, building construction or civil engineering works, excavations, assembly and dismantling of prefabricated elements used for the construction of building or civil engineering works) of an amount exceeding € 70,000, the benefits of which:

• articles. 119 (110% deduction), 119-ter (75% deduction for overcoming and eliminating architectural barriers), 120 (tax credit for the adaptation of working environments) and 121 (option for discount on invoice and transfer of credit), DL no. 34/2020;
• art. 16, paragraph 2, DL n. 63/2013 (so-called “Furniture bonus”); 
• art. 1, paragraph 12, Law no. 205/2017 (so-called “Green Bonus”); 
• art. 1, paragraph 219, Law no. 160/2019 (so-called “Bonus facciate”); 

are recognized provided that the application of the national and territorial collective agreements of the construction sector, stipulated by the employer and trade union associations pursuant to art., is expressly specified in the deed of assignment of the works. 51, Legislative Decree no. 81/2015. The collective agreement applied, in addition to the deed of assignment of the works, must also be specified in the invoices issued in relation to the execution of the works. The authorized subjects referred to in art. 3, paragraph 3, letter. a) and b), Presidential Decree no. 322/98 (accountants / labor consultants / etc.) and those responsible for tax assistance of the CAFs referred to in the art. 32, Legislative Decree no. 241/97, for the purpose of issuing the approval of conformity, they are required to verify that the collective agreement applied is indicated in the deed of assignment of the works and reported in the invoices issued by the executors of the works.

Hence the doubts about the disrecognition of construction bonuses in the event of lack of adequate manpower, exacerbated by recent FAQs of the National Joint Commission for Construction Funds (CNCE) published on 15 February 2022.

In summary, according to the CNCE, the effects of the lack of congruity could be reflected, indirectly, also on the failure to recognize the benefits provided for by the tax legislation, regarding tax deductions, considering that the art. 5, paragraph 6, of Ministerial Decree no. 143/21 provides verbatim that "In the absence of regularisation,the outcome of the adequacy check referring to the individual work, public and private, affects, from the date of issue, the subsequent checks of regularity of contributionsaimed at issuing the Durc online for the entrusted company, [...]".

In this case, therefore, the provision referred to in art occurs. 4 of Ministerial Decree 41/98 letter d) (“Cases of denial of the deduction” which establishes that “The deduction is not recognized in the case of: d) violation of the rules on the protection of health and safety in the workplace and on construction sites, as well as contributory obligations ascertained by the competent bodies and communicated to the territorially competent regional revenue directorate").

In conclusion, considering the concerns among operators in the sector, a clarifying intervention on the topic by the Revenue Agency would be appropriate.