Professionals: automatic registration of social security institutions
The inclusion of self-employed social security institutions is linked, in principle, a combination of two assumptions that are enrollment in the professional and professional practice. Since the assumptions of the law, the requirement to register arises borne by the trader must give specific application to the social security system. In the absence of submission of the registration, subject to the application of specific sanctions, is generally the possibility to have the registration office by the social security concerned. Not all social security institutions have professional free, however, concretely exercised the right to have inscriptions of office, being a dutiful preliminary careful check on the recurrence of the conditions of the law, also in view of the serious financial consequences for the professional that you see often deliver requests for arrears of contributions and penalties particularly onerous.
However, it often happens that the social security institutions have free professional registration office solely on the basis of formal data such as the opening of the VAT registration and enrollment in the professional, without checking carefully and specifically whether, given the formal , s'affianchi the actual exercise of the profession to which these institutions are in charge of social protection. In the face of the inevitable litigation that the practice of enrollment office has determined and still determines, the present contribution aims to shed light on the guidelines of the Court's legitimacy in terms of the allocation of the burden of proof in terms of interpretation and the concept of the professional activities relevant to the onset of compulsory affiliation to the pension institution.
This reconstruction is inspired by the Ordinamento pension dell'Inarcassa as the callback jurisprudence was formed in disputes which have affected the entity and as the Inarcassa has, in fact, willing numerous inscriptions office which resulted in a substantial litigation but it is easily extensible to other legal free security professional, likewise, provide for the possibility of inclusion of office and professional practice as a prerequisite for the onset of compulsory affiliation. Turning to the reference standards within the social security system dell'Inarcassa, art. 7 of the Statute provides that: "the inscription to INARCASSA is mandatory for all engineers and architects who practice their profession with continuity and exclusively reserved to them" and, similarly, Article. 21 of L. n. 6/1981 provides that: "Membership to the Fund is mandatory for all engineers and architects who practice their profession with continuity." In interpreting these provisions of the law the Supreme Court has had occasion to note how the professional activity, the outcome of which determines the onset of compulsory affiliation to the pension institution, that is exclusively reserved, that is, that under Articles. 51 and 52 of r.d. October 23, 1925 n. 2537 of them in mind, "are attributable to the profession of engineer the design, conduct and appraisal of the work to extract, transform and use materials directly or indirectly necessary for construction and for the industries, of work on the streets and means of transport, flow and communication, buildings of all kinds, to machines and industrial plants, as well as the applications of physics in general, the geometric reliefs and valuation processes ... the construction works, as well as geometric reliefs and valuation processes relating to them "(see to that effect Cass. Civ. Sect. Lav. n. 3468/2005). According to the Supreme Court concur literal and systematic nature of arguments to exclude that the obligation to register in Inarcassa extensible to engineers who do not exercise the professional activity reserved. On the literal level, Cass. Civ. n. 3468/2005 pointed out that the first paragraph of Art. 21 of L. n. 6/1981, in placing the obligation to register the case for all engineers and architects who practice their profession with continuity, intended to indicate, with the definite article, just as an engineer and architect, and not any free profession, for which he would have used the indefinite article. Cass. Civ. n. 3468/2005 has also observed that the same paragraph 5 of art. 21 of L. n. 6/81, to exclude the possibility of enrollment in the case for engineers and architects who are members of defined security required in respect of a contract of employment or otherwise of other activity, gives a clear confirmation of the distinction, for the onset of compulsory affiliation, including the activities of engineers and architects, and any other profession. But, in general, the Supreme Court has observed, it is the whole Law January 3, 1981, n. 6 that: "as stated in his own title (Rules on security for engineers and architects) only concerns the security of those who exercise these professions" (as, quote, Cass. Civ. Sect. Lav. No. 3468/2005). The Supreme Court has, however, repeatedly made clear as to undertake any relief for the onset of compulsory affiliation to the pension fund, the fact that engineering knowledge, like any other form of knowledge, can influence on 'activities actually performed by the engineer himself (in this sense, see the previously mentioned Cass. Civ. Sect. Lav. n. 3468/2005 and already Cass. Civ. Sect. Lav. n. 11154/2004 contra, however, see Cass. Civ. Sect. Lav. n. 20670/2004 according to which "the parameter of subjection to the contribution is the connection between the activity (from which the income is derived) and professional knowledge, and thus cultural base on which the activity takes place. ") Moreover, already the Constitutional Court, the sentence no. 402 of 12 November 1991, had clarified with reference to all'assoggettabilità additional contribution of turnover tax lawyers, that the volume of business was to be understood as referring exclusively to the professional exercise, "and this can only be made FROM forensics, whereby any doubt ... those other activities that, although not incompatible, they have nothing in common with the exercise of the legal profession. " Under the different but related profile of the distribution dell'onus probands, then, Cass. Civ. Sect. Lav. n. 11154/2004 has, however, also stated that weighs just sull'Inarcassa the burden of proving the objective amenability to practice as an engineer of those activities for which the liability to contribution claims and the existence of an obligation to enrollment. On closer inspection the principle expressed by Cass n. 11154/04 is a direct expression of the general statutory allotment criteria of art. 2697 of the Civil Code as the power granted to social security institutions free professional, have inscriptions office rests on the occurrence of conditions of the law of which, where these institutions intend to actually exercise this power, will have to provide evidence in court. Callbacks pronunciations have, therefore, embraced a notion of professional practice substantialistic in mind which only the effective exercise of the profession can lead to the appearance of law - registration requirement to the pension institution. This interpretation substantialistic was, however, followed by the Supreme Court in the opposite case in which the Inarcassa, arguing inclusion of a different professional security body (it was, in the present case of Surveyors), believed to exclude the right the recognition of the same professional on the basis of paragraph 5 of article. 21 of L. n. 6 of 1981, which provides for the exclusion from registration in the case of engineers and registered architects forms of compulsory insurance in respect of a contract of employment or otherwise of other activity. In this case, the Supreme Court made clear that only the entry of a different security institution which s'accompagni the effective exercise of different work can not exclude the right to enroll in Inarcassa and not the mere fact of registration in different institution (see Cass. Civ. Sect. Lav. n. 1389/2006).
25/05/2007
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Source:
Italian version of CercaGeometra.it