Tax Law

tax law  

Tax law is a field of Public Law. However, it displays a number of characteristics which lead us to classify it as an independent area of law. This independence resides in the fact that tax law contains many issues that are also incorporated in public and civil Law. For example, the notions of transfer of property, leasing, donation, inheritance etc. are all notions of other areas of law that are relevant to taxation and tax laws. In general, tax law could be defined as «mandatory legislation» due to the nature of its provisions, which delimitate the tax power of the state and intend to impose and collect the citizens’ taxes. At the same time, tax law constitutes the institutional framework of combating tax evasion and offers legal guarantees for the law abiding exercise of power by the tax officials.

 

 

Special topics:

Tax audits triggered by transfer of funds to banks outside Greece

Guidelines for the implementation of thin capitalisation rules - Circular 1037/2015

Tax treatment of director's fees paid by a UK company to Greek tax residents

Transfer of tax residence abroad

Greek CFCs rules

Tax treatment of the tax paid abroadfor the tax years before the 1st of January 2014

Procedure for VAT exemption for the delivery of goods 

"Permanent establishment" of foreign undertakings in Greece

Update on tax administration and policy in Greece, July 2015

Taxation of benefits in kind under Greek law

The main tax developments in Greece between May 2014 -May 2015

Taxation of offices established pursuant to Emergency Law 89/1967 (Law 3427/2005)

Voluntary support from the ship-owners sector is extended to four years

The general anti-avoidance rules in Greek law - Article 38 Law 4144/2013

New Real Estate Tax

New Tax Procedure Code

New Income Tax Code

New Unified Real Estate Tax (U.R.E.T. - ΕΝ.Φ.Ι.Α., Law 4223/2013)
Tax residency: coming or going; do you know where you are?
Special lump sum contribution of Article 18 of Law 3758/2009
Definition of a permanent establishment according to the new Greek Income Tax Code
Luxury taxes
Civil non-profit companies ; taxation and issue of record, tax treatment of donations
Securing the interests of the State in cases of tax evasion
Summary of changes on transfer pricing legislation by virtue of Law 4110/2013
Option of settlement of debt to the State
Penalties in case of non-payment of confirmed debts
Preliminary confirmation of taxes at 50% and method of payment
Taxpayer’s defense against tax assessment sheetIncentives for the realization of expenses for scientific and technological research
The tax framework for charitable gifts-donations in Greece
Thin capitalization rules in Greek tax lawList of non co-operative countries according to article 51A of the Greek income tax code (updated on 20.1.2012)
Taxation in the transfer of shares listed in the Athens Stock Exchange
The new investment incentives law 3908/2011

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 Fundamental rules of taxation in Greek law

The fundamental rules of taxation in Greek law are contained A) in article 4 §§ 1 & 5 of the Greek Constitution which read as follows: 4§1 “Greeks are equal as against the Law”; 4 §5 “Greek citizens contribute without discrimination to public fees depending on their powers” B) in article 78 §§ 1 & 2 of the Greek Constitution: 1) No tax is imposed or collected without a formal law that sets the object of taxation, the income, the nature of property, the expenses or the transactions to which the tax relates to 2) Tax or other financial burden cannot be imposed with a law having retrospective effect, beyond the previous tax year of the year when the law is passed; in other words, the legislator can only look at income produced one year back when imposing taxation. Relevant to the constitutional rule which requires a formal law for the imposition of tax is the fundamental principle that tax rules are narrowly interpreted.

The main categories of taxes in Greece
We can distinguish three basic categories of taxes in the Greek tax system:
a) taxes on income; The main examples are tax on the income of individuals and tax on the income of legal persons (corporations). As a separate category of income tax, there is also taxation of ships.
b) taxes on property/capital taxes, e.g. inheritance tax, tax on real property ownership.
c) taxes on transactions or consumption taxes, e.g. V.A.T., tax on the transfer of real property, import duties, duties on the consumption of luxury goods, special duties on alcohol and tobacco, duties upon registration of private cars, duty on subscribers of mobile communication providers, e.t.c. Stamp duty, which is quite commonly charged in a list of transactions is also considered as a tax because it does not correspond to a specific provision of the State, i.e. it has no reciprocity. Subject to stamp duty are mainly certain contracts between individuals or businesses, certain dealings with the public sector etc.

The tax administration
The tax administration in Greece is a competency of the Ministry of Finance. The Ministry of Finance is divided into separate General Directorates (Administrative Support, Taxation, Tax Audits, State Property, Customs and Special Duties, Financial Inspection, IT Systems, Budget & Payroll). There is also the General Directorate of “S.D.O.E.”, which stands for “Body for the Combat of Economic Crime”.  In the lower level of tax administration are the local tax offices and the local customs offices.

Local tax offices
Greece is divided into administrative areas and in each of them operates one or more tax offices that are called “D.O.Y.”. For the taxation of each individual, the competent tax office for the receipt, processing and clearance of tax returns is the tax office of his area of residence. Exceptionally, for the taxation of professionals and sole traders the competent tax office is the tax office of the area where they exercise their business or profession. For individuals who reside abroad, there is a special tax office in Athens. Administrative acts issued to one taxpayer bear the signature of the Director of the local tax office. There are separate tax offices for S.A. companies. The latter are currently being abolished, so S.A. companies will fall under the supervision of local tax offices and large companies will be dealt with by a new department called “Tax Office for Large Companies”.

The administrative procedure in taxation
The administrative procedure in taxation is the whole procedure which takes place between the legislative enactment of a new tax until either the relevant tax is paid or until a court procedure is initiated by the taxpayer who seeks to challenge an administrative act of the tax authority. Although, as mentioned, the imposition of tax is strictly limited to the legislator, the identification of the persons liable to tax, the calculation of the exact amount of tax, the imposition of tax penalties or fines related to violation of tax legislation, and the administrative settlement of tax disputes are all competencies of the tax administration. In theory, the tax administration does not enjoy unlimited freedom in the exercise of its powers; there are strict formal rules that govern the procedure of issuing administrative acts imposing tax. To the same end is also the constant effort of the legislator, because the more formal the rules and the procedure, the less discretion will be left with the tax officials, which is considered as an aggravating factor for corruption and malpractice. In practice, however, the tax authorities have a certain degree of discretion, when, for example, they apply-interpret the degrees of severity in violations of tax laws.

Formal obligations of taxpayers
Most, if not all transactions in Greece involve a certain tax issue. In its attempt to combat tax evasion and tax fraud, the State in many occasions imposes obligations to individuals that are often strict, unfair and bureaucratic. The formalities involved in Greek tax legislation are in some cases extreme. Book-keeping is complicated even for small businesses and this is why even sole traders and small businesses or individuals with various sources of income have to get services from tax consultants or accountants in order to minimize their risk of missing out a formality.

The obligation to obtain a tax registration number (A.F.M.)
In Greece, the tax identity of individuals and corporate entities is defined by a unique tax registration number which has nine (9) digits. This tax registration number is kept until death of the individual or until dissolution of the corporate entity. The uniqueness of a tax registration number is ensured by the fact that it is associated with numerous personal details of the tax payer, such as the ID number, the date of birth/incorporation, the residence address or corporate seat etc. All individuals and corporate entities who i) are liable to file a tax return; ii) declare the commencement of taxable activities; iii) acquire land or cars; iv) participate in partnerships or companies; v) represent other taxpayers before the tax authorities etc. are attributed a tax registration number. In all dealings with the tax authorities, the tax registration number is mentioned. It is also obligatory to mention the tax registration number in specific dealings between private parties, e.g. in contracts for the acquisition of land etc. Having more than one tax registration number is an administrative offence which incurs high penalties.

The obligation to file a tax return (tax declaration)
In order to define the tax liability of each individual or corporate entity, it is necessary that the tax authority is aware of data that are related to the specific individual. This relates to most forms of taxation. The most common form of tax return is the income tax return which is submitted annually by all taxpayers between March and June, and relates to the income of the previous year. A tax return is also filled for V.A.T. bi-monthly or every trimester, for taxes withheld by businesses on salaries and payments to subcontractors etc. Also, the tax legislation provides that certain transactions are invalid before the relevant tax is paid; for example in a transaction in real estate or upon transfer of shares, a tax return (declaration) will have to be submitted to the tax authority and the tax must be paid before the actual agreement is signed between the parties. A tax return may be submitted in hard copy or (in more and more cases) electronically. The State encourages taxpayers to file tax returns electronically (where possible) because they are less costly and quicker in processing and in that way the tax assessment is made immediately by the system. However, there are many categories of taxes that still have to be filled in person at the local tax office. In cases where the taxpayer is not sure whether he is subject to a tax or when in doubt about a specific element of the tax return, he can file a tax return “with reservation”, but such reservation has to be specific, otherwise it will be rejected by the tax authority. Corrections to tax returns are made by “corrective tax returns” that may be submitted under certain time limits.

Tax audits
The law allows tax authorities and tax officials to conduct tax audits in order to assess the correctness of the facts declared by the taxpayers and in order to assess their tax liability in general. For big companies there are special audit offices that cover wider geographical areas of Greece. Tax audits may be very brief and simple, like for example an invitation to the taxpayer to visit the tax office with evidence that support the facts declared in his annual tax return, or they can be very extensive and last for months, with more than one tax officers present at the premises of a business under inspection. As a separate audit force “S.D.O.E.” (Body for the Combat of Economic Crime) was established in 1995. S.D.O.E. has a joint competency with the competent tax offices for conducting inspections. It deals with more serious tax fraud and economic crime. It has very extended powers and can operate everywhere in Greece 24 hours per day and 7 days per week. S.D.O.E. operates like a tax-police and may have access to all information that facilitates its tasks. By law 3943/2011, a new force has been established in order to combat tax evasion and economic fraud, the Economic Crime Prosecutor. Its office is staffed with experienced tax, customs, and court officials, judicial clerks, financial experts etc. The Economic Crime Prosecutor has also extended authorities and the government has placed high hopes in its role for combating tax evasion.

Violation of tax rules
Due to the volume and the complexity of Greek tax legislation, it is practically very common for a taxpayer to be in breach of some tax provision, even unintentionally. The origins for the complexity is the effort of the State to combat tax fraud, but unfortunately, over the years it tends to create adverse effects in that respect. Apart from cases of accidental violation, there is of course a remarkable high level of intentional violation and tax fraud in Greece. Small scale intentional violation of tax laws may be attributed to the character of Greeks who adopt a friendly approach in day to day transactions and would excuse a contactor or supplier who does not issue an invoice for his products or services. At the top level of breaches is the tax fraud, which is orchestrated by organized criminals who may profit millions of Euros by carousel fraud, customs fraud violation of transfer pricing laws and other methods.

Tax disputes
After finishing the tax audit, the tax authority issues two documents: 1) the “tax audit report”, which is the analysis of the findings together with an explanation of the factual circumstances and the methodology followed 2) a  so called “audit sheet”, which is the actual administrative act imposing additional taxes, fines, penalties etc. The audit sheet refers to the audit report for details of the findings, it is actually founded on it. The tax authority must then officially service the documents to the taxpayer.

Challenging the acts of tax authorities before the courts
Generally, if a taxpayer seeks to challenge an act of the tax authority before the courts, the deadline is 30 days after official notification of the act by the tax authority. Tax cases fall within the competency of the administrative courts who have 2 degrees (Administrative court of first instance and administrative Court of Appeal). On legal grounds only, as a third recourse, a petition before the Council of the State can be filled as well.  The action against the administrative act is called “recourse” and is filled before the administrative court of first instance. Following recent changes in the law, for cases the value of which exceeds the sum of €150.000, there is direct recourse to the Administrative Court of Appeal, and hence the taxpayers for those disputes are deprived of one degree of jurisdiction; this is heavily criticised as unconstitutional. The court action (recourse) seeks to annul or modify the administrative act, and may do so, or may reject the recourse and verify the act of the tax authority.
The tax payer may request for an administrative resolution of the tax dispute, either before the competent authority that adopted the contested measure, or before a 5-member committee of the General Directorate for Tax Audits and Collection of Public Revenues of Ministry of Finance. This Committee is competent for the administrative resolution of the tax dispute only in cases that the dispute exceeds 50.000€.  For tax disputes exceeding the amount of 300.000€, the Committee  is exclusively competent and the tax payer does not have the right to address the request for administrative solution to any other authority.  Moreover, it must be noted that in cases that the tax dispute exceeds the amount of 300.000€, the request for the administrative solution before the above mentioned Committee is compulsory by law. That means that if the tax payer files recourse before the court without having filed a prior request for the administrative solution, then the recourse will be rejected as inadmissible.
The filling of a recourse automatically suspends 50% of the additional tax and/or penalty which is being challenged. So, after filling of the court action, the tax authority issues a “payment order” for 50% of the original amount provided in the “audit sheet” and, depending on the outcome of the case, after the court decision is publicised, will either refund the taxpayer or issue an additional payment order for the remaining 50% of the original amount. Suspension of the 50% upon filling of the court case is possible but it may only be ordered by the court, following a separate petition of the taxpayer for suspension, for which the court will look at the merits of the case and will only grant it where it sees that the taxpayer has obviously strong grounds to win the case. The tax authorities have equal rights for appealing against decisions. Special court proceedings may be initiated also at the level of administrative execution, i.e. where the recourse challenging the merits of the case is no longer possible.

Tax disputes after 01.08.2013
It should be noted that for tax disputes arising from actions of the tax authorities dated 01.08.2013 and onwards and by virtue of new article 70B of Income Tax Code, the above mentioned procedure will be completely differentiated and the tax payer, who challenges the action, will be obliged to request the administrative settlement of the tax dispute, by submitting a quasi-judicial action before the Internal Review Service of the General Secretariat of Public Revenues. The request must be submitted to the competent tax authority that issued the contested decision within 30 days from the notification of the tax payer. Then it is forwarded within 7 days to the above mentioned Service, which issues a decision in the next 60 days (especially for quasi-judicial actions that are submitted to the tax authorities until 28.02.2014, the deadline of 60 days is extended up to 120 days). If the Service does not issue a decision within the deadline, the request is considered to be rejected (implicit rejection).
With the filling of the request, the tax authority issues a “payment order” for 50% of the original amount provided in the “audit sheet”. Together with the quasi-judicial action, the tax payer has the right to submit a request for the suspension of this 50%. The Internal Review Service may suspend the payment, only in cases that the payment could cause an irreparable damage to the tax-payer. If the Service does not issue a decision within 20 days of filling the request for suspension, it is considered to be rejected.
The tax payer may appeal against the decision of the Internal Review Service or against the implicit rejection of the quasi-judicial action due to expiration of the deadline, within 30 days, before the competent administrative courts, in accordance with the provisions of the Code of Administrative Procedure.

Some special issues in Greek tax law
a. objective methods in the imposition of tax
The Greek legislator, in order to combat tax evasion, has developed a number of objective methods in the calculation of income and the valuation of property.  The most important examples of this approach can be found in income taxation of individuals and in taxation of real property (possession and transfer). In the taxation of income of individuals, the law lists a number of expenses and of assets that prove “deemed income” of the taxpayer. So, for example, if a person declares income of €10.000 per annum they would not be able to justify the possession of a big house with a swimming pool. There is a table for calculating the income related to certain assets and expenditure, that are added up, so that if the taxpayer declares less income, he will be taxed according to the deemed income according to his personal assets and expenditure. Similarly, in order to combat tax evasion in property transfers, the legislator, by virtue of law 1249/1982, introduced an “objective system” of land valuation. This system provides for a minimum value of real property according to objective criteria such as position, size, public facilities in the area, age of a building etc. It was imposed so that the tax authorities have a reference minimum value in imposing taxes related to land. In cases of transfer of land, the relevant taxes are calculated on either that “objective value” or the value agreed in the contract, whichever is the highest. The objective values are usually significantly lower than the market values, but recently the government, by virtue of regular updating, tends to bring them closer.  Not all areas in Greece have been valued, so in some areas (mainly rural) the tax authorities estimate the value according to similar transactions or other available comparable data.

b.tax amnesty laws
The complexity of tax laws, the bureaucracy of tax administration and the number of formal procedures and paperwork that taxpayers have to observe, have created over the years an immense number of tax files that have not been audited and also a huge number of cases pending before the tax courts. This situation results in the State failing to collect taxes from those cases and also to the fact that taxpayers are in a way “hostages” of an uncertainty regarding their tax obligations of the past. In order to tackle this problem, governments often pass amnesty laws by which the taxpayers have the opportunity to close the files of their past tax behaviour without audit, by paying an amount which usually relates to certain objective criteria. Amnesty laws are quite frequent but are highly disputed, not only in principle, but also in terms of their long term effectiveness. A taxpayer who has no violations in his record would be encouraged to participate in the amnesty procedure in order to avoid being audited (as said, it is very easy to be caught being in breach unintentionally); on the other hand, a taxpayer who has intentionally violated the rules in order to avoid tax, may pay the same amnesty fee and get away with it. Whenever passed, tax amnesty laws create controversy and criticism and although when announced, they are said to be the last ones to be passed, there is always another one coming.

International aspects of Greek tax law
The superiority of international treaties as against national Greek laws is clearly defined in article 28§1 of the Constitution, which provides that international treaties since their ratification by law and their coming into effect, are an integral part of the internal legal order and supersede any contrary legal provision. This rule applies equally in relation to tax laws, to the extent that they may be contradictory with an international treaty that Greece has signed with another country or countries. Reciprocity is a prerequisite for the application of international treaty rules to foreigners, as provided by the same article 28 § 1.
Greece is a member of the European Union since 1981 and hence, all EU rules that relate to taxation are applicable. However, EU is far from having a full harmonization of the various national tax systems and hence, the effect of EU legislation in Greek tax law is mainly limited to the following areas:
i.  the uniform application of V.A.T. rules.
ii. the abolition of import duties
iii.the non-discrimination between individuals and corporations because of their country of origin.
iv.the cross-border restructuring of companies and the treatment of parent-subsidiary payments
v. the mutual cooperation of tax authorities.
Greece is also a member of the OECD and has entered into treaties for the avoidance of double taxation with 55 countries*. Most of the DTTs cover both income and capital taxes, but some cover only income taxes.

 


* up to the time of writing, U.S.A., U.K., Sweden, France, India, Italy, Germany, Cyprus, Belgium, Austria, Finland, The Netherlands, Hungary, Switzerland, Czech Republic, Slovakia, Norway, Poland, Denmark, Bulgaria, Romania, Luxemburg, Republic of Korea, Israel, Croatia, Uzbekistan, Albania, Portugal, Armenia, Spain, Georgia, Ukraine, Russia, Slovenia, South Africa, Turkey, Ireland, Latvia, Kuwait, China, Lithuania, Mexico, Egypt, Canada, Azerbaijan,  Saudi Arabia, Morocco, Qatar, Serbia, Tunisia, Estonia, Malta, Iceland, Moldavia and Bosnia-Ergegovina.

 

 

Publication date: 12/07/2013