In some cases, tax offenses are of particular importance and for this reason they are treated by the legislator as crimes, punished not only with administrative fines but also criminal penalties.
In particular, Article 66 of the Code of Tax Procedure defines the offenses of tax evasion and provides that tax evasion is committed by anyone who, with the intention of avoiding the payment of tax (income, wealth or special property tax), conceals taxable income from any source or property, in particular by failing to make a statement or submit an incorrect statement or virtual costs.
Tax evasion is also committed by anyone who, with the intention of avoiding the payment of VAT, withholding taxes, taxes, etc., does not pay these taxes, or repays or offsets them, or deducts them incorrectly.
In order to establish the crime of tax evasion, it is required that the taxpayer has intent (i.e. deceit). Issues arising from accounting differences, which are unrelated to the concealment of taxable income, do not constitute tax evasion.
Anyone committing tax evasion is punishable by imprisonment of at least two years:
• if the tax which corresponds to taxable incomes which have been concealed exceeds EUR 100.000 per tax year and per type of tax, or
• if the amount of the principal tax, charge or levy that has not been reimbursed or attributed inaccurately, etc. exceeds (i) EUR 50,000 each tax year, in the case of VAT or (ii) EUR 100,000 in any other case.
If the amount of tax exceeds EUR 100,000 in the case of VAT or EUR 150,000 in other cases, imprisonment is imposed.
Anyone issuing counterfeit or fictitious tax information, as well as anyone who accepts fictitious or distorted information, regardless of whether or not he or she evades tax, is punished by imprisonment of at least three months.
However, if the tax information was used to commit or support tax evasion, the offender is punished with the abovementioned penalties as perpetrator or participant.
In particular, anyone who issues or accepts fictitious tax information for a non-existent transaction, in whole or in part, is penalized:
- by imprisonment of at least one year if the total value of the assets exceeds EUR 75,000;
- up to ten years of imprisonment, if the said amount exceeds EUR 200,000.
Where a legal person commits a tax evasion, anyone authorized to administer or manage or represent the legal person is generally held responsible for such crimes, provided that by any act or omission one has contributed to committing it.
It is worth noting that in the above crimes, prosecution is exercised of its own motion and the bringing of an action before the administrative courts does not affect the criminal proceedings.
The criminal court may, however, if it considers that the outcome of an administrative proceeding is essential for its own judgment on the case, suspend the criminal trial until the final ruling of the administrative court.
Limitation on tax evasion
According to the Code of Tax Procedure, which is in force since January 1st 2014, tax evasion and tax penalties are limited at twenty years (and not at five, which is the normal limitation period).
In fact, the 20-year limitation period is also applicable retroactively to tax evasion cases committed before the Code, in particular for cases of the year 2008 and onwards.
However, according to what has been accepted recently by the plenary decisions of the Concil of State CoE (1738/2017 and 2934/2017), the 20-year limitation period can be applied retroactively only for the year 2013, as the relevant provision was passed in 2014 and its implementation is unconstitutional for previous uses.
G. Samothrakis, J. Panou
Posted on Sunday newspaper Kathimerini, 03/12/2017