Contributed By Zepos & Yannopoulos
The majority of tax controversies arise following a tax audit initiated by the tax authorities. The taxpayers to be audited are selected on the basis of a risk analysis made centrally by the tax administration, using criteria not officially published. Once the taxpayer is selected for audit, an audit order is issued and notified to the taxpayer, thus initiating the tax audit. Furthermore, unannounced tax audits may be performed on the spot to check the compliance of the taxpayers. Depending on the findings, tax audits may result in the assessment of taxes, penalties and interest against the taxpayer, which the latter has the right to dispute.
Tax controversy may also be initiated in cases where:
In both cases above, the tax authorities may either (i) perform an audit in order to review the refund claim of the taxpayer which can result in its rejection or (ii) let the relevant deadline for reviewing the refund claim pass, thus tacitly rejecting the refund claim.
There are no official statistical data as regards the taxes that more often give rise to tax controversies, both in terms of nature and values involved. In practice, however, it appears that the most common tax controversy areas for legal entities concern corporate income tax (including transfer pricing), VAT and stamp duty. For individuals, tax controversies arise mostly in relation to personal income tax and property taxes.
Tax legislation is often complex, and at times outdated, not adjusting to the changing economic reality and new types of transactions carried out. As a result, there are many issues whose tax treatment is currently not being regulated by Greek tax law. At the same time, tax legislation is widely fragmented, with many decisions and circulars being issued for the interpretation of the applicable legal framework and the provision of guidelines for its implementation. Furthermore, especially since the financial crisis, tax legislation is subject to constant amendments, which sometimes are not easy to keep up with.
In view of the above, it can be difficult for taxpayers to achieve full compliance with their tax obligations and therefore mitigate the possibility of tax controversy. They are protected, however, when they have followed the interpretation and guidelines contained in the circulars and decisions issued by the tax administration, which are binding for the tax authorities as provided by the law. In such a case, the taxpayers cannot be assessed with taxes and penalties.
However, Greek tax legislation does not provide for the issuance of binding tax rulings, so it is not possible to receive in advance the binding position of the tax administration on the tax treatment of certain transactions, and thus reduce possible uncertainty. Written queries can be filed with the tax administration anyway, although their prevailing policy is no longer to issue individual replies, but, when they receive more queries on the same issue, to issue (where possible) general guidelines through circulars. However, even when they issue individual replies, the tax auditors are not bound by them and can adopt a different position.
There is an exception for transfer pricing, where Advance Pricing Agreements can be concluded with the tax authorities.
The BEPS recommendations and the EU’s recent measures to combat tax avoidance have not yet had an impact on tax controversies in Greece. The reason for this is that they are relatively new and not many audits have been performed yet for the fiscal years in which these rules have been in effect. It should be noted that the statute of limitations for the right of the tax authorities to perform audits is in principle five years starting from the end of the tax year in which the relevant tax return should be filed and usually the tax authorities perform the audits towards the end of that period.
There have been isolated cases where the General Anti-Abuse Rule, contained in the Tax Procedures Code, has been invoked by the tax authorities in audits concerning stamp duty; however the Administrative Courts, where the disputes were brought, did not examine and comment on this rule.
Upon issuance of the final tax assessment note following an audit, the taxpayer is obliged to pay the total amount assessed within 30 days. Making this payment is not a pre-condition for disputing the assessment further. However, when an administrative appeal is filed and 50% of the assessed amount is paid, payment of the remaining 50% can be suspended by law. If the administrative appeal is rejected and the taxpayer proceeds with a judicial appeal at first instance, the suspension remains (although in the event that the appeal is dismissed, payment of the suspended amount will be burdened with 8.76% interest per year, from the date it had originally become due).
However, if the judicial appeal is dismissed at first instance, payment of 20% of the main tax upheld by the first instance court that is due (excluding penalties and interest) is a condition for the admissibility of the second instance appeal.
If the assessed amounts are not paid when they become due, without being lawfully suspended, they become overdue and the tax administration has the right to take enforcement measures.
Nevertheless, even before the tax debt becomes due and payable, the tax administration may impose the so-called “safeguard measures” in order to avoid the imminent risk of not collecting taxes. Such measures include the seizure of movable and immovable assets or claims of the debtor.
In a case where, in the context of a tax audit, the tax authorities consider that the taxpayer has not paid VAT, insurance premium tax, taxes, duties and contributions which are either withheld or passed on to the counter party, the amount of which exceeds EUR150,000, they have the right to proceed with the following safeguard measures against the taxpayer:
Where the taxpayer who is found not to have paid the above amount of taxes is a legal entity, the aforementioned safeguard measures are also imposed against any individual involved in the management, administration and representation of the legal entity.
The safeguard measures are lifted if 70% of the total assessed amount is paid, or the taxpayer submits a guarantee letter of an equal amount in favour of the Greek State.
When an additional tax assessment is made, apart from the main tax due, penalties and interest are also assessed. These penalties include the administrative penalties that are applicable to the tax infringements identified and therefore administrative offences are not subject to a separate procedure from the additional tax assessment.
Should, however, the tax infringements result in tax evasion that triggers criminal liability, criminal proceedings may be initiated against the taxpayer (or his or her representatives, when the taxpayer is a legal entity) that run in parallel with the dispute of the additional tax assessment.
As mentioned under 1.1 Tax Controversies in this Jurisdiction above, the taxpayers to be audited are selected on the basis of a risk analysis made centrally by the tax administration, using criteria not published. Therefore, the tax administration identifies those taxpayers for which there is a priority to be audited; however, the way in which this qualification is made is not disclosed. In this respect, tax audits may also be triggered by information the tax authorities receive from other countries (when the taxpayer is involved in cross-border transactions) or from audits performed on other taxpayers, for example when a supplier is found to have been issuing fictitious invoices. Furthermore, unannounced tax audits may be performed on the spot to check the compliance of taxpayers, usually those engaged in the retail sector where the risk of tax evasion is high (eg, unannounced visits to restaurants to check the issuance of retail receipts to the customers).
The tax audit can be initiated anytime within the statute of limitations, ie, as long as the right of the tax authorities to proceed with an assessment has not expired under the statute of limitations rules. According to these rules, the tax authorities have the right to assess taxes within five years, starting from the end of the tax year in which the relevant tax return should be filed.
The aforementioned statute of limitations is extended as follows:
As long as the statute of limitations has not lapsed, there is no time limit for the completion of the audit, although the tax audit order issued for the particular audit provides an indicative duration of the audit.
The issuance of a tax audit order, or the tax audit itself, does not suspend or interrupt the statute of limitations. Any such suspension occurs only upon the issuance of the final tax assessment note to the taxpayer.
Usually, the main part of the audit is performed from the tax authorities’ offices. Upon initiation of the tax audit, the tax authorities serve a written request to the taxpayer, requesting him or her to provide certain data from their books and records. The taxpayer provides them electronically and then the audit is performed remotely. However, during the audit, the tax auditors may regularly visit the taxpayer’s premises to discuss with him or her certain issues they need to clarify, or to check additional documentation.
As regards corporate income tax, the deductibility of expenses is still the main focus of tax auditors. In this respect, the tax auditors may challenge this deductibility on two grounds: (i) because they consider that the productivity condition has not been met, ie, that the expense has not contributed to the expansion of the business and the increase of its income, or (ii) the supporting documentation available is not sufficient to establish the deductibility (eg, no detailed descriptions on the invoices).
In relation to VAT, the application of exemptions and reduced VAT rates is scrutinised, both with regard to the substantive conditions for their application, as well as the formal conditions (eg, the existence of supporting documentation evidencing the nature of the VAT-exempt activity or the goods that are subject to the reduced rates).
Stamp duty has been another area of focus for tax auditors, especially on cross-border intercompany loans, as to whether their execution is deemed to have taken place in Greece, as per the territoriality rule. In this respect, they will review the flow of payments made in the context of such loans.
Lately, the focus of audits has also shifted to transfer pricing, with the tax auditors scrutinising the benchmarking studies; cross-border cost-plus structures are also reviewed for permanent/fixed establishment purposes.
Overall, the tax authorities still focus equally on substantive issues as well as formal ones (as regards the existence and proper issuance of fiscal documentation); in the coming years, however, it is expected that more focus will be placed on the substantive issues.
Cross-border exchanges of information and mutual assistance have increased, especially VAT audits, where such exchanges and assistance are more common. The audits usually focus on the discrepancies detected in the transactions declared in the EC Sales lists, whereas audits on possible carousel frauds are also performed. Lately, multi-country audits have started being conducted, again with regard to VAT.
From a strategic point of view, during a tax audit it is important for the taxpayer to respond in a timely manner to any requests raised by tax authorities. This means that the taxpayer should provide all documentation and data requested, and be prepared to provide explanations and clarifications on issues not clear to the tax auditor. Orderly bookkeeping, prompt retrieval of any supporting documentation requested and solid explanations may have a positive impact, since otherwise the tax auditors may be negatively predisposed and therefore become more aggressive.
Upon completion of the tax audit, the competent tax authorities which performed it shall serve the taxpayer with a preliminary audit findings report, together with a provisional assessment note on the amounts of taxes and penalties to be assessed.
The taxpayer shall have a 20-day deadline, in order to submit an explanatory memorandum, raising arguments against the audit findings together with any supporting documentation.
Following the review of the aforementioned memorandum, the tax authorities may accept the arguments raised by the taxpayer either fully or partially, or may reject them entirely. Accordingly, and within a month from receiving the memorandum, they shall issue the final audit report and the final tax assessment notes assessing the taxes and penalties.
Upon being served of the final assessment notes, the taxpayer shall have a 30-day deadline (60 days if the taxpayer is not established in Greece) to submit an administrative appeal before the Dispute Resolution Unit, a special Directorate of the Independent Authority for Public Revenues, which is exclusively competent to review administrative appeals.
The submission of such an administrative appeal is a condition of admissibility of the subsequent judicial appeal before the competent court.
The Dispute Resolution Unit shall have a 120-day deadline to issue a decision on the administrative appeal. Upon the lapse of the aforementioned deadline and insofar as no decision has been issued, the administrative appeal shall be considered as tacitly rejected.
In such a case the tacit rejection can be challenged by filing a judicial appeal with the competent administrative court, in the same way the explicit rejection of the administrative appeal is challenged.
Judicial tax litigation is only initiated following the explicit or tacit rejection by the Dispute Resolution Unit of the administrative appeal filed by the taxpayer. Direct recourse to the court without prior filing of an administrative appeal is not permitted. The judicial appeal is filed within 30 days (or 90 days for taxpayers not established in Greece) from the service of the negative decision by the Dispute Resolution Unit or the tacit rejection of the administrative appeal.
As long as the amount of the main tax or tax penalty under dispute is lower than EUR150,000, the case is lodged before the Administrative Court of First Instance. If the amount exceeds the aforementioned threshold, the case is directly lodged at first instance before the Administrative Court of Appeals.
Initially, the taxpayer must submit an appeal before the competent court, as defined above, also taking into account the place of establishment of the taxpayer filing the appeal. The appeal should include the legal and factual arguments against the negative decision of the Dispute Resolution Unit or the tacit rejection of the administrative appeal. Subsequently, and in any case no later than fifteen days before the hearing date, the taxpayer has the right to submit additional grounds for the appeal. The document containing these additional grounds should be officially served by the taxpayer to the litigant tax authorities through a court bailiff.
The competent court shall set a hearing date and notify the parties accordingly. The taxpayer has the right to ask for an adjournment of the hearing, explaining the reasons he or she is asking for it. Usually, the first time an adjournment is requested, the court agrees to it. However, requests for adjournment in subsequent hearings are more difficult to be accepted.
The tax administration must submit before the court the case file, together with a report which sets out its position on the case, at the latest 30 days before the hearing date (although in practice this deadline is usually not observed). The taxpayer must furnish any supporting documentation and evidence to the court up to one day prior to the hearing date.
Following the hearing, the parties shall have three working days to submit a memorandum to elaborate further on any arguments already raised. Upon the lapse of this deadline, each party shall have three more working days to rebut the arguments elaborated by the other party in its memorandum.
The procedure is then completed, the court examines all documents submitted and issues its decision.
As mentioned under 4.2 Procedure of Judicial Tax Litigation, any supporting documentation and evidence should be submitted to the court up to one day prior to the hearing date. The supporting documentation submitted by the taxpayer is very important for the substantiation of his or her arguments and it is taken into account by the court. It is often the case that the court will dismiss appeals on the ground that the supporting documentation submitted by the taxpayer was not sufficient to prove his or her arguments.
As regards the examination of witnesses, the following options are available:
It is often the case that witness testimonies are not equally taken into account by the court with the rest of the supporting documentation (eg, agreements, invoices, extracts from the accounting books).
In the tax litigation proceedings before the administrative courts, each party has the burden to prove any facts it has invoked and support the argumentation it has raised, unless otherwise provided by law. The other party shall have the right to submit evidence in rebuttal.
As regards criminal proceedings, the competent criminal authorities should provide all the necessary evidence to substantiate the accusation, while the taxpayer needs to prove his or her own arguments.
The procedure before the court is standard: all legal arguments should be included in the judicial appeal at the time of its filing with the court, or with an additional document that can be filed up to fifteen days prior to the hearing. Therefore, the Greek State will have the time and opportunity to review these arguments and rebut them with its own memoranda. Thus, there is no room for a strategy to be planned as regards the timing of raising the arguments. The same applies for supporting documentation and evidence. They should be submitted to the court up to the previous day from the hearing date. Usually, the tax authorities do not comment on the documentation and evidence submitted, but they focus on rebutting the legal argumentation raised by the taxpayer.
It is currently debated whether all legal argumentation should be raised and supporting documentation and evidence should have been submitted already at the level of the administrative appeal, or whether it is possible for it to be raised and submitted for the first time at the level of the judicial appeal. No irrevocable decision has been issued yet by the Supreme Administrative Court on this issue. Therefore, and until the Supreme Court decides irrevocably, it is advisable for the taxpayer to raise all his or her arguments and submit all evidence at the level of the administrative appeal.
In principle, and with certain limited exceptions, Greek law does not provide for a settlement procedure during the judicial phase, which, if entered by the taxpayer, could result in the reduction of the payable amounts.
The payment of the amounts assessed is not considered as acceptance of the assessment by the courts. As mentioned above, under 1.5 Additional Tax Assessments, upon filing of the administrative appeal and payment of 50% of the assessed amount, payment of the remaining 50% is suspended. The suspension continues even if the administrative appeal is rejected and a judicial appeal is filed. If the court issues a negative decision for the taxpayer, the taxpayer needs to pay the remaining 50%, however this will be burdened with interest 8,76% annually (from the date this amount had originally become due). Therefore, when it is ambiguous whether the case will be won at court, taxpayers opt to pay from the beginning the total amount assessed, in order to avoid paying interest, if they lose.
Expert reports can be submitted as additional evidence. This could be opportune, especially as regards issues that present a certain degree of complexity for judges, eg, transfer-pricing issues or issues requiring clarifications on the accounting treatment of transactions, etc.
Jurisprudence of international courts is usually taken into account by Greek courts and it is often the case that the courts base their rulings on such jurisprudence. This occurs especially when they examine VAT cases, where they almost always invoke relevant ECJ jurisprudence.
Doctrine may be referenced by Greek courts, in order to substantiate a position they have taken, but not that often. The same applies for jurisprudence of foreign courts, with the Supreme Administrative Court being more likely to reference it, rather than the lower courts.
As regards international guidelines, BEPS reports have not yet started being invoked, whereas the OECD Commentary on the Model Convention on Income and on Capital, and the OECD Transfer Pricing Guidelines are invoked when relevant issues are examined by the courts.
If the amount of the main tax or tax penalty under dispute exceeds EUR150,000, the case is lodged directly before the Administrative Court of Appeals. In such a case, this court rules at first and last instance and its decision is not subject to an appeal (at second instance) but only to a writ of cassation before the Supreme Administrative Court.
Recourse to the Supreme Court is allowed only for matters relating to the interpretation of law. The writ of cassation is admissible insofar as the disputed amount exceeds EUR40,000. This amount refers to the main tax (not including penalties or interest). An additional condition of admissibility is that for the legal matter in question, there is no jurisprudence of the Supreme Administration Court, or the contested decision of the Administrative Court of Appeals is contrary to existing jurisprudence of the Supreme Administrative Court or other Supreme Court, or to an irrevocable decision of an Administrative Court.
If the amount of the main tax or tax penalty under dispute does not exceed EUR150,000, the case is lodged before the Administrative Court of First Instance. In such a case, its decision is subject to an appeal (at second instance) before the Administrative Court of Appeals, provided that the amount under dispute exceeds EUR5,000. The appeal may be based on both legal and factual grounds. The decision of the Administrative Court of Appeals is again subject to a writ of cassation, under the conditions mentioned above.
The second-instance appeal before the Administrative Court of Appeals is filed within 60 days from the date the decision of the Administrative Court of First Instance is served. The deadline is extended to 120 days for taxpayers not established in Greece. Additional grounds other than those included in the initial appeal can be put forward; however, the relevant document should be submitted to the Administrative Court of Appeals latest 15 days before the hearing date. The document with the additional grounds should be officially served to the litigant tax authorities through a court bailiff.
The court will set a hearing date and notify the litigant parties accordingly. The taxpayer has the right to ask for an adjournment of the hearing, explaining the reasons for which he or she asks for the adjournment. Usually, the first time an adjournment is requested, the court agrees to it. However, requests for adjournment in subsequent hearings are more difficult to be accepted.
The taxpayer should submit all supporting documentation and evidence at the latest by the day before the hearing. The tax administration must also submit before the court the file of the case, together with a report which sets out its position on the case, 30 days before the hearing date (although this deadline is usually not observed in practice).
Following the hearing, the parties shall have three working days in which to submit a memorandum to elaborate further on any arguments already raised. Upon the lapse of that deadline, each party shall have three more working days to rebut the arguments elaborated by the other party in its memorandum.
The procedure is then completed, the court examines all the documents submitted and issues its decision.
As regards the writ of cassation before the Supreme Administrative Court, it is filed 60 days after the contested decision of the Administrative Court of Appeals is served to the taxpayer. If the taxpayer is not established in Greece, the deadline for the filing is extended to 90 days.
The Supreme Court shall set a hearing date and notify the applicant taxpayer accordingly. The latter should further serve the writ to the litigant tax authorities 20 days prior to the hearing date. Given the nature of the writ of cassation, no supporting documentation and evidence is submitted. The parties may submit a memorandum to elaborate further on their arguments six full days prior to the hearing. At the hearing, they may also make a request of the court president to submit an additional memorandum, within a fixed deadline to be determined by the president.
At the hearing, both representative lawyers of the taxpayer and the Greek State have the right to elaborate fully on their arguments and they may receive questions from the judges.
It is often the case that the hearings before the Supreme Administrative Court are adjourned ex officio, due to the heavy workload of the judges.
Cases whose amount at dispute is lower than EUR60,000 (this amount refers to main tax, not including penalties and interest) are heard by the single judge Administrative Court of First Instance. If the amount exceeds EUR60,000 and up to EUR150,000, the case is heard by the Administrative Court of First Instance sitting with three judges.
If the amount exceeds the amount of EUR150,000, the case is heard at first and last instance by the Administrative Court of Appeals sitting with three judges.
The appeal against the decision of the single-judge Administrative Court of First Instance is heard by the single-judge Administrative Court of Appeals, while appeal against the the decision of the Administrative Court of First Instance sitting with three judges is heard by the Administrative Court of Appeals sitting with three judges.
Both the Administrative Court of First Instance and the Administrative Court of Appeals have many chambers comprised of different judges. The allocation of the cases to each chamber is made internally by the Courts.
The writ of cassation before the Supreme Administrative Court is heard by the competent chamber of the Court sitting with five judges, who differ for each case, depending on the internal allocation of the cases that has been made. Important cases may be referred to the chamber sitting with seven judges or the Plenary of the Supreme Administrative Court.
In principle, there is no ADR mechanism applicable for taxes in Greece.
Greek tax law does not provide for the issuance of binding rulings. Written queries can be filed with the tax authorities and the latter can provide written answers, however, the latter are not binding and the tax auditors can adopt a different position in the context of a tax audit. There is an exception, however, as regards transfer pricing, where Advance Pricing Agreements are available.
When an additional tax assessment is made, apart from the main tax due, penalties and interest are also assessed. These penalties include the administrative penalties that are applicable to the tax infringements identified and therefore the administrative offences are not subject to a separate procedure from the additional tax assessment. When the taxpayer assessed is a legal entity, the individuals managing and representing the legal entity are also jointly liable for payment of the assessed amounts (taxes and penalties). Namely, if the legal entity does not pay its tax debt and it becomes overdue, the tax authorities have the right to approach the aforementioned individuals and request payment of the debt. At the same time, as mentioned under 1.5 Additional Tax Assessments, the tax authorities have the right to impose safeguard measures against the taxpayer (or his or her representing individuals) in order to ensure collection of the tax debts.
If the taxpayer commits tax evasion he or she also has criminal liability. Tax evasion is an offence triggering criminal liability, when the taxpayer intentionally avoids the payment of taxes, evidenced by omitting to file a tax return or filing an inaccurate tax return, or recording in his or her accounting books fictitious expenses.
Tax evasion also requires that certain thresholds of tax not paid be exceeded on an annual basis ie, EUR50,000 for VAT or EUR100,000 for any other tax, this threshold being applicable separately for each type of tax.
When the taxpayer is a legal person and tax evasion is committed, the burden of criminal liability is borne by the individuals who manage and represent the legal entity.
In practice, following the issuance of the final tax assessment notes and as long as the aforementioned thresholds for committing tax evasion are met, the tax officers, without examining or assessing whether the element of “intention”, as required by law for the offence of tax evasion, actually exists, will submit a criminal complaint to the competent Public Prosecutor against the persons bearing criminal liability.
The tax adminstration has clarified through relevant guidelines that ordinary income tax adjustments (ie, disallowed expenses), as well as TP adjustments, should not be considered as falling under the scope of tax evasion.
Furthermore, a separate criminal offence is provided by Greek law, when tax debts of a taxpayer, exceeding EUR100,000 have become overdue and the taxpayer does not pay them within four months from when they became overdue.
Criminal proceedings, if initiated, run in parallel with the submission of an administrative or a judicial appeal concerning the tax assessment. Where the outcome of the pending appeals is important for the outcome of the criminal proceedings, the criminal court can suspend the trial until the judgment of the administrative court is issued.
Please see 7.1 Interaction of Tax Assessments with Tax Infringements and 7.2 Relationship Between Administrative and Criminal Processes.
As mentioned under 7.1Interaction of Tax Assessments with Tax Infringements, the tax administrative infringement process is not separate from the additional tax assessment.
As regards the tax criminal procedure, following the submission of the criminal complaint by the tax authorities against the persons bearing criminal liability for the offence of tax evasion, the Public Prosecutor, on the basis of the evidence available, can decide either to initiate a pre-interrogation or interrogation procedure, to send the case directly to the competent criminal court, or to close the file. At the pre-interrogation or interrogation stage, the accused individual has the right to submit a defence statement along with all available supporting documentation. At this point, the Public Prosecutor may decide not to continue the criminal procedure or to send the case to the criminal court. In the latter case and at the hearing, the accused individual should present all substantiating documentation, in order to support his or her case. Following the hearing and the examination of the facts and evidence, the court shall issue its decision.
Criminal tax cases are heard exclusively by criminal courts, which are totally separate from administrative courts, which only decide on the tax assessments, on the basis of tax law.
Reduction of the applicable penalties for tax offences is only possible during the course of the audit and until the issuance of the preliminary audit findings report. After the audit has started, the taxpayer can voluntarily file corrective tax returns and pay any tax due, prior to that tax being assessed. In such a case, the applicable penalties are reduced. However, the reduction applies under the condition that the taxpayer will waive his or her right to challenge the payment of the taxes and penalties further.
Furthermore, once the tax assessment is finalised, no reduction is provided in the event that the taxpayer pays the total amount assessed, which becomes due anyway within 30 days from the assessment.
No such agreement is possible, whereas if the total amount assessed is paid, although the criminal tax trial will still take place, in practice it should be expected that the individual will be acquitted.
In criminal proceedings, the decision of the first-instance court is subject to an appeal at second instance before the competent criminal court.
Pursuant to guidelines issued by Greek tax administration, transfer pricing adjustments should not be considered as falling under the scope of tax evasion. Therefore, in the event of such findings, criminal proceedings are not initiated.
However, as regards tax assessments arising from the application of GAAR or SAAR, tax authorities should be expected to submit a criminal complaint, where the relevant thresholds for committing tax evasion have been exceeded. Nevertheless, such rules are still not commonly invoked by tax authorities and therefore they do not result in tax disputes. There have been isolated cases where the GAAR has been invoked in stamp duty cases; given, however, that the non-payment of stamp duty does not fall within the definition of tax evasion, no criminal proceedings have been initiated in this respect.
Until now, limited use of Mutual Administrative Procedures (MAP)has been made in cases of tax assessments concerning cross-border situations, due mainly to the lack of response by Greek tax authorities. Therefore, it has been more common for recourse to be made to domestic litigation only.
In 2017, however, a renewed legislative framework was introduced for the processing of applications through MAP, which provides for a structured review and response to such applications. Therefore, it may be possible for MAP to start being used more by taxpayers. Nevertheless, it should be noted that if recourse has also been made for the same matter to a domestic court and the latter issues a decision, then the MAP can no longer proceed.
As mentioned previously, the GAAR or SAAR are still not commonly used and therefore no tax disputes have arisen due to their application.
Transfer-pricing adjustments have mostly been challenged under domestic litigation. There have been fewer cases where the MAP has been used, on the basis of both the EU Directive and the applicable double tax treaty.
Advance Pricing Agreements are provided in Greek tax legislation and are increasingly used as a mechanism to mitigate litigation in transfer-pricing matters.
APA applications are filed with the Directorate of Tax Audits of the tax administration and comprise the following stages:
The decision on the APA should be issued within 120 days from filing the relevant application. However, in cases where arrangements with foreign tax authorities need to be made, the above deadline is not applicable. The duration of the decision on the APA cannot exceed four years.
Until now, it was more common for litigation to be generated from cases concerning withholding taxes, and more specifically the definition of royalties (which are subject to withholding tax) versus business income (which is not subject to withholding tax). In such a case litigation could be mitigated, if the agreements in place give a detailed description of the services actually provided (in order for their nature to be more easily defined) and, accordingly the invoices contain sufficient descriptions or make reference to the agreements in place.
However, transfer-pricing litigation is increasing, with advanced pricing agreements (APAs) being suitable to mitigate litigation. Furthermore, there have been several litigation cases of permanent/fixed establishment assessments concerning cost-plus structures, with the tax authorities adopting aggressive interpretations of the respective provisions of double taxation treaties and VAT legislation, which, however, have so far been upheld by the courts as well.
No fees apply at the administrative stage.
For lodging an appeal at first and at second instance the taxpayer shall pay a court duty equal to 1% of the amount under dispute and up to the amount of EUR15,000.
If the aforementioned court duty exceeds the amount of EUR3,000, only this amount has to be paid; any remaining amount up to the amount of EUR15,000 will be assessed by the court decision, if negative for the taxpayer.
Upon submission of the appeal at first or second instance the taxpayer shall pay one third of the court duty, whereas the remaining amount (two thirds) should be paid prior to the hearing date.
If the appeal is rejected, the court duty shall be forfeited in favour of the Greek State. However, if the appeal is accepted, the court duty is refunded to the taxpayer (any such refund does not bear any interest).
With the appeal, the taxpayer can ask for the assessed amount of taxes and penalties he or she has already paid to be refunded with interest. Indeed, when they issue positive decisions for the taxpayers and order the refund of taxes and penalties, the courtsusually award interest as well.
The Greek Ministry of Justice, Transparency and Human Rights issues, on a quarterly basis, certain statistics regarding the number of court cases per instance.
As regards the administrative courts based on the latest report available for the third quarter of 2018, the pending tax cases on 30 September 2018 are as follows:
In the Administrative Court of First Instance:
In the Administrative Court of Appeals:
As regards the Supreme Administrative Court based on the latest report available for the fourth quarter of 2017, the total pending tax cases on 31 December 2017 were 3,608 analysed per amount under dispute as follows:
No such statistical data are available as regards the number of cases per tax object and relevant value.
No such statistical data are available.
Given the multiple stages of a tax controversy, it is important that the taxpayer sets the defensive line from the very early stage of the audit in order to be in a position to present a solid case before the tax administration and the competent courts. In this context, depending on the issues involved, the best efforts should be put forward in order to present the tax administration and courts with detailed and conclusive evidence on the factual background of the case as well as any administrative guidelines and jurisprudence on the interpretation of the applicable provisions. It goes without saying that the whole tax controversy procedure requires close monitoring at each stage in order to meet the deadlines and safeguard the best outcome.