Tax Observatory › Employment and social security › The INPS Guarantee Fund: unpaid TFR and final wages where the employer is insolvent

The INPS Guarantee Fund: unpaid TFR and final wages where the employer is insolvent

When the employer does not pay, the end-of-service indemnity and the wages for the last three months are not necessarily lost: the Guarantee Fund established within INPS steps in, subject to conditions, ceilings and time limits that are all laid down in the legislation. By Message No. 2601 of 10 August 2026 the Institute changed the electronic channel: the declarations of the officer in charge of the insolvency procedure, and the applications for payment of the TFR portion linked to the exemption under Article 43-bis of Decree-Law No. 109/2018, may now be sent only in bulk mode, by XML file.

The Guarantee Fund is not a social safety-net benefit: it pays an autonomous social security benefit, for which the law makes INPS liable in place of the insolvent employer. The distinction is not a matter of words, because the rules on limitation, on interest and revaluation, and on the scope of the assessment all follow from it. Whoever advises an employee whose wages have gone unpaid, or administers an insolvency procedure, is therefore dealing with a benefit that has requirements of its own, each of which must be proved.

What the Fund guarantees, and to whom

The “Guarantee Fund for the end-of-service indemnity” was established within INPS by Article 2 of Law No. 297 of 29 May 1982, “for the purpose of standing in for the employer in the event of the latter’s insolvency”, in the payment of the end-of-service indemnity (trattamento di fine rapporto, TFR) governed by Article 2120 of the Civil Code; it is financed by a contribution of 0.03 per cent payable by employers. Legislative Decree No. 80 of 27 January 1992 — which implemented Directive 80/987/EEC, later codified as Directive 2008/94/EC — extended the guarantee given by that Fund so as to cover employment claims other than the TFR, and established, in Article 5, a second and separate Fund for contributions not paid into supplementary pension schemes.

The persons covered are private-sector employees: apprentices, senior managers (dirigenti) in industrial undertakings and, since 1 July 2022, journalists; self-employed and quasi-subordinate (parasubordinati) workers, and public-sector employees, are excluded. Heirs and the persons entitled under Article 2122 of the Civil Code may also apply.

The procedures that open the way to the Fund

Since 15 July 2022, when the Code of Business Crisis and Insolvency (Codice della crisi d’impresa e dell’insolvenza, Legislative Decree No. 14 of 12 January 2019) entered into force, the procedures that INPS lists as capable of triggering the guarantee are judicial liquidation (liquidazione giudiziale, formerly bankruptcy), composition with creditors (concordato preventivo), compulsory administrative liquidation (liquidazione coatta amministrativa), extraordinary administration and simplified composition (concordato semplificato). Procedures opened before that date continue to be governed by the former bankruptcy law, so the two sets of terms will coexist for years.

Where the employer cannot be made subject to insolvency procedures, the door is not closed: Article 2, fifth paragraph, of Law No. 297/1982 and Article 1(2) of Legislative Decree No. 80/1992 allow an application to the Fund where enforcement against the employer’s assets has proved wholly or partly insufficient. Without documentary proof of that outcome, the application has no basis.

The last wages: scope, window and ceiling

For claims other than the TFR the guarantee covers the last three months of the employment relationship — three calendar months, that is, the period running from the date of termination back to the same date in the third preceding month — provided that those months fall within the twelve months preceding the date of the order opening the procedure, the date on which enforcement began, or the dates listed in point (c) of Article 2(1) of Legislative Decree No. 80/1992 (placing in liquidation, cessation of the provisional continuation of the business, termination of the employment relationship while the business continued to trade). If, during those three months, the relationship was suspended and no entitlement to pay arose, the guarantee moves back to the three months immediately preceding them, still within the twelve-month window.

The scope is pay in the strict sense: it includes the accrued portions of the thirteenth month’s pay and of other additional monthly payments — no more than three such portions — and the allowance in lieu of holiday accrued but not taken during the quarter; items that are not pay fall outside it.

The ceiling is three times the maximum monthly amount of extraordinary wage supplementation (cassa integrazione guadagni straordinaria, CIGS), net of social security and welfare deductions. That maximum, laid down in Article 3(5-bis) of Legislative Decree No. 148 of 14 September 2015, is redetermined every year: for 2026 it is 1,340.56 euro net (INPS, Circular No. 4 of 28 January 2026), so the guarantee stops at 4,021.68 euro. It is a limit on payment: it is not to be apportioned over the period for which the Fund is asked to intervene, and it is not reduced by sums that the employer may in fact have paid during the last three months. The payment may not, however, be combined — up to the amounts concerned — with extraordinary wage supplementation received during the twelve months or with the mobility allowance (indennità di mobilità) for the three months following termination, an allowance abolished with effect from 1 January 2017 and never replaced in the wording of the provision.

The TFR: when it can be claimed

The TFR is subject to no ceiling, but it presupposes that the claim has been admitted to the schedule of liabilities (stato passivo): failing that, a late proof of debt (insinuazione tardiva) is required. The application may be made once fifteen days have elapsed from the filing of the schedule of liabilities declared enforceable, or — where objections or challenges have been brought against the claim — after the judgment deciding them, or, alternatively, from the publication of the judgment approving the composition with creditors.

The application is accompanied by form SR52, completed and signed by the officer in charge of the procedure: the form is a declaration made to INPS, not a document of which the employee receives a copy. If that officer refuses and the refusal is evidenced, the employee supplies the information directly by means of form SR54 and appropriate documentation, for instance the application for admission to the schedule of liabilities with its annexes. Sums already paid, including advances on the indemnity and interim distributions, are deducted from the amount payable.

One distinction matters for a far-from-negligible proportion of those concerned: employers required to pay into the INPS Treasury Fund (Fondo di Tesoreria) — as a rule those with at least fifty employees — transfer to it the TFR portions retained in the undertaking under Article 1(755) and (756) of Law No. 296 of 27 December 2006, and those portions follow a channel of their own. The interaction between the two Funds — for instance where an insolvent employer has offset portions paid into the Treasury Fund without actually paying them to the employee — is governed by paragraph 8 of INPS Circular No. 70 of 26 July 2023 and by INPS Message No. 2057 of 3 February 2012. As regards tax, INPS acts as withholding agent: sums paid by way of end-of-service indemnity are subject to separate taxation under Articles 17 and 19 of the Consolidated Income Tax Act (TUIR).

What changes with Message No. 2601 of 10 August 2026

The message does not affect the substantive right: it changes the channel. Two categories of filing are concerned: the declarations of the officer in charge of the insolvency procedure (forms SR52 and SR95), and the electronic applications for payment of the TFR portion under Article 43-bis of Decree-Law No. 109 of 28 September 2018, converted into law, with amendments, by Law No. 130 of 16 November 2018. Both may now be sent only in bulk, by XML file. Both the web service for online submission, introduced in 2016 and referred to in the message, and the Institute’s internal service have been withdrawn. The technical information on how the files are to be completed is set out in the service information sheets, and the submission service now includes a function allowing the declarations and applications already transmitted to be consulted, whatever the means by which they were sent.

It is worth recalling the scope of Article 43-bis, so that the citation does not suggest that the provision is still in force: the provision, introduced when the decree was converted, exempted companies in bankruptcy or extraordinary administration that had made use of extraordinary wage supplementation under Article 44 of the same decree — for the years 2020 to 2022 and within an annual limit of 16 million euro — from paying the TFR accrual portions and the contribution under Article 2(31) of Law No. 92 of 28 June 2012.

The change concerns the obligations of those administering the procedure, not the employee’s application, and the message provides for no transitional period. For smaller procedures the change is not without cost: an officer who used to submit one declaration a year through the portal must now produce a file complying with the technical record layout, and that file is best prepared well in advance, rather than on the eve of the distribution.

The time limits that matter

Payment is made within sixty days of the request (Article 2, seventh paragraph, of Law No. 297/1982); in the Institute’s practice the period runs from the application accompanied by all the required documents. Once payment has been made, the Fund is subrogated by operation of law to the employee’s rights, including the statutory preference (privilegio) under Articles 2751-bis and 2776 of the Civil Code, and takes part in the distribution on that basis.

As to limitation, the two claims follow different paths, though time begins to run at the same point for both: time runs, under Article 2935 of the Civil Code, from the moment at which the right may be asserted. For the TFR there is no special period and the ordinary ten-year period applies, given the autonomous social security nature of the benefit, on the view that INPS treats as settled in Circular No. 70/2023: this is an administrative position and not a written rule, and it should be checked before a case is built on it. For employment claims, by contrast, Article 2(5) of Legislative Decree No. 80/1992 lays down a period of one year, and for those claims interest and revaluation run from the date on which the application is made. An administrative appeal lies to the INPS Provincial Committee (Comitato provinciale), within ninety days of receipt of the decision, against a refusal or against a decision granting the claim only in part.

In practice

• Classify the claim — if it is pay and not TFR, the limitation period drops from ten years to one.
• Do not wait for the distribution — the application may be made fifteen days after the filing of the enforceable schedule of liabilities, and the claim must be admitted to it; failing that, a late proof of debt is needed.
• Obtain form SR52 — ask the trustee or the judicial liquidator to complete it; in the event of a documented refusal, proceed with form SR54.
• Check the ceiling — on wages the limit is three times the net monthly maximum for the relevant year (4,021.68 euro on the 2026 figure), and the benefit is reduced, to the extent of those amounts, by any extraordinary wage supplementation received during the preceding twelve months.
• Where no insolvency procedure is available — keep the enforcement file: without proof that the assets were insufficient, the Fund does not intervene.
• Check the Treasury Fund — where the TFR portions were paid into it, they follow a channel of their own and must be kept separate from those claimed from the Guarantee Fund.
• Allow for tax — INPS acts as withholding agent and the TFR is subject to separate taxation: the amount credited will not match the gross figure admitted to the schedule of liabilities.
• For those administering a procedure — check access to the XML channel and the preparation of the file: the online alternative no longer exists. The message does not, on the other hand, affect the channel through which the employee lodges his or her own electronic application with the Fund.

Frequently asked questions

Does the Fund pay even where the employer cannot be made subject to insolvency procedures?

It does, but on condition that enforcement against the employer’s assets has proved wholly or partly insufficient. Proof of that outcome is a precondition of the Fund’s intervention, not an optional attachment.

Does the ceiling apply to the TFR as well?

No. The limit of three times the monthly maximum for wage supplementation concerns only claims other than the TFR. The end-of-service indemnity is subject to no ceiling, although sums already paid are deducted from it.

What happens to unpaid supplementary pension contributions?

The separate Guarantee Fund established by Article 5 of Legislative Decree No. 80/1992 applies; it makes good, within the pension scheme, the shortfall in the member’s position where the claim has remained unsatisfied at the end of the procedure.

The Guarantee Fund is a well-established mechanism: the conditions are written down, the ceilings can be calculated, the time limits are in the legislation. That clarity, however, concerns the law and not practice: refusals almost always follow from incomplete documentation, from a form SR52 that was never obtained, or from an application made once the one-year limitation period for wage claims had already expired; and the XML channel, now the only one available for declarations made in insolvency procedures, adds a technical step where an online form once sufficed. It is better, then, to treat the requirement as a deadline and not as a mere formality. The firm follows these matters in the section on payroll and employment and in that on business crisis; our other articles are collected in the Tax Observatory.

• Law No. 297 of 29 May 1982, Article 2 (Guarantee Fund for the end-of-service indemnity): second, fifth, seventh and eighth paragraphs.
• Legislative Decree No. 80 of 27 January 1992, Articles 1, 2 (paragraphs 1, 2, 4 and 5) and 5; Directive 80/987/EEC, later codified as Directive 2008/94/EC.
• Civil Code, Articles 2120, 2122, 2751-bis, 2776 and 2935.
• Legislative Decree No. 14 of 12 January 2019 (Code of Business Crisis and Insolvency), in force since 15 July 2022.
• Decree-Law No. 109 of 28 September 2018, Articles 43-bis and 44, converted with amendments by Law No. 130 of 16 November 2018; Law No. 92 of 28 June 2012, Article 2(31).
• Legislative Decree No. 148 of 14 September 2015, Article 3(5-bis); Law No. 296 of 27 December 2006, Article 1(755) and (756) (Treasury Fund); Presidential Decree No. 917 of 22 December 1986 (Consolidated Income Tax Act), Articles 17 and 19.
• INPS, Message No. 2601 of 10 August 2026, and Message No. 2057 of 3 February 2012.
• INPS, Circular No. 70 of 26 July 2023, paragraphs 5, 8, 9.2, 9.3 and 10.3, and service page «Fondo di garanzia del TFR e dei crediti di lavoro».
• INPS, Circular No. 4 of 28 January 2026: maximum amounts of wage supplementation for 2026, 1,423.69 euro gross and 1,340.56 euro net.