Omitted Social Security Contributions and Liquidity Crisis: Proof of Unpaid Wages is Decisive (Court of Rome, Judgment of February 3, 2023)

The Factual Framework and the Accusatory Hypothesis

The criminal proceedings involved the administrator of "la società", who was called to answer for the crime of omitted payment of social security and welfare contributions. From the IT investigations conducted by INPS, a contributory omission emerged for the months between December 2013 and November 2014, and between December 2014 and November 2015, for a total amount of € 290,264.34.

The Role of the Administrator and the Defense Line

An element of particular interest that emerged during the trial concerns the qualification of the defendant: she had assumed the position of administrator at the request of a third party, effectively lacking real decision-making power or control over company management.

The defense focused its strategy on the non-existence of the objective prerequisite of the crime: the actual payment of wages. It was in fact demonstrated that the company was in a state of deep crisis, such as to prevent not only the payment of contributions, but also the payment of salaries to employees (including that of the administrator herself).

As proof of the will to remedy the debt position towards the workers, the defense also documented the stipulation of a lease agreement (and subsequent transfer) of a business unit, the proceeds of which were contractually bound to the payment of back wages.

The Jurisprudence and the Decision

The Court of Rome, Fourth Criminal Section, fully accepted the defense's argument, basing its decision on the consolidated orientation of the Supreme Court. The judges reiterated that the crime in question is not configured where there is no actual disbursement of the sums due as remuneration:

(cf. SS.UU. n. 27641/2003 and Cass. Sez. III n. 50002/2019)

The production of unequivocal documentary evidence regarding the omitted payment of salaries for the period in question led to the collapse of the accusatory framework. The Court therefore pronounced a fully exculpatory formula, acquitting the defendant because the fact does not exist pursuant to art. 530 c.p.p..