Failure to pay social security contributions: the crime is excluded without the payment of salaries (Court of Rome, Judgment 12727/2024)

The Case

The proceedings concerned the legal representative pro tempore of a limited liability company, charged with the crime referred to in art. 2 of Legislative Decree no. 463/1983. The charge concerned the failure to pay social security and welfare contributions deducted from the wages of employees and quasi-subordinate workers. The contributory omission ascertained by INPS referred to the year 2016.

During the trial, initiated following an appeal against a criminal conviction decree, it emerged that payments to employees were made with serious delay or entirely omitted, also due to the subsequent bankruptcy of the company in 2018.

The Defensive Strategy and Documentary Evidence

The core of the defense was based on demonstrating the profound corporate liquidity crisis, which had even prevented the payment of salaries. The defense proved the non-payment of wages through the production in court of the financial statements closed on 31.12.2017.

From the accounting document, the huge debt accumulated by the company towards employees, quantified at Euro 338,962.00 for the period in question, unequivocally emerged. Further debt of the company towards the same administrator, amounting to Euro 3,800.00, was also documented.

The Principle of Law and the Decision

The Court of Rome, Seventh Criminal Section, in a single-judge composition, accepted the defensive thesis, recalling a consolidated legitimate jurisprudential orientation.

The ruling reiterates that the crime of failure to pay social security and welfare contributions is not configurable in the absence of the actual material disbursement of the sums due to the employee as remuneration. The prerequisite for the unlawful conduct is in fact the material deduction made by the employer at the time of salary disbursement; lacking the latter, the logical and legal prerequisite of the "deduction" and, consequently, of the omission of the relative payment, ceases to exist.

In support of this orientation, the following judgments were cited:

• Joint Sections no. 27641/2003
• Cass., sez. 3 no. 50002/2019

Since the Judge did not find certain proof of the actual payment of salaries to the workers, he pronounced a judgment of acquittal against the accused because the fact does not exist, pursuant to art. 530 c.p.p.