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The taxpayer's defense against the conduct of the tax administration

When the taxpayer challenges an explicit act issued against him by the tax administration or wishes to challenge the failure to issue an act (the case of silent refusal), he may request a review of the act / omission.

In practice, this means that the tax payer needs to submit an inadvertent appeal to the tax authority that issued the act or omitted to issue it, citing the reasons and documents upon which his request is based. The law expressly provides that the taxpayer bears the burden of proving the defect of the act he is challenging.

The application is submitted within 30 days (60 days for taxable foreign residents) from the date of notification of the act or from the failure to issue it.

The cross-appeal is submitted to the tax authority that issued the contested act or omission and is forwarded to the Dispute Settlement Division (DSD) for examination. It is emphasized that the taxpayer cannot appeal directly to the tax courts against the act of the administration but instead must first follow the above interim administrative procedure of the appeal.

With the opening of the appeal, the taxpayer has to pay 50% of the amount in dispute (principal and fines) in order to suspend payment of the remaining 50% and therefore not to initiate enforcement proceedings (seizures, etc.). Suspension does not apply in the case of a direct tax assessment, e.g. in a tax assessment, issued on the basis of data provided by the taxpayer himself in his tax return.

At the same time with the appeal to a higher administrative court, the taxpayer has the right to submit to the DSD a request to suspend the payment of 50%. However, in practice, the suspension is only granted on a few occasions and only if it is considered that the payment would cause irreparable damage to the debtor. If no decision is taken within 30 days of the submission of the application, the suspension request shall be deemed to have been refused.

The DSD has to decide on the plea within 120 days, taking into account the appeal, the information received from the debtor and the views of the competent tax authority, as well as any other information relevant to the case.

Where new information is submitted to the DSD or new facts are invoked, the person liable must be summoned to a hearing. The DSD decision is notified to the taxpayer. If, however, no decision is taken within the 120-day time limit, then the allegation is implicitly rejected and the debtor becomes aware of this rejection on the expiry of that period.

The DSD may, in its decision, annul, in whole or in part, or amend the act of the tax authority with sufficient justification (i.e. with legal or factual allegations).

In the event of a dismissal of the plea, the statement of reasons may refers to accepting the findings of the tax assessment transaction in question. If the cross-appeal is accepted by the DSD, the tax administration has no right of appeal against the decision.

On the other hand, a taxpayer may appeal against an explicit or implied rejection before the competent Administrative Court within 30 days (90 days if he is resident abroad).

The above procedure has been criticized by the legal theory on a number of issues, mainly concerning the uptake of 50% of the tax before the DSD decision has been issued, the large amount of the uptake(previously 25%),  the administration and not the courts having jurisdiction over whether or not the conditions for granting a suspension of payment.

G. Samothrakis, J. Panou
Posted on Sunday newspaper, “Kathimerini”, 22/04/2018

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