In the first part of our article (21/4/2018) we presented the procedure that a taxpayer must follow when challenging an explicit act which has been issued by the tax administration or wishes to challenge the failure to issue an act (implied refusal).
In short, the taxpayer must initially appeal to the Dispute Settlement Division (DSD) of the Finance Ministry, filing an appeal to a higher administrative court within 30 days.
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.).
The DSD has to give its ruling within 120 days, and if a decision is not taken within that period, it is considered that the appeal has been implicitly rejected.
Recourse to administrative courts
Against the explicit or implicit rejection of the appeal by the DSD, a taxpayer may appeal to the competent administrative court within 30 days (90 days if he is a foreigner).
Exercising the appeal does not suspend the execution of the act of the administration. However, if 50% of the disputed amount has been paid in the opening of the appeal, the suspension of the attestation and payment of the remaining 50% remains valid.
(a) If the amount of the principal tax does not exceed EUR 150,000, the appeal shall be dealt with at first instance by the Administrative Court of First Instance. Subsequently, an appeal may be lodged with the Administrative Court of appeail against the decision to be issued.
However, in order for the appeal to be admissible, the taxpayer will have to pay (more than the 50% already paid) an extra 20% of the amount due under the first instance decision.
b) Where the subject of the dispute (amount of principal tax) exceeds EUR 150,000, the case shall be heard in the first and last instance in the Three-Member Court of Appeal upon the filing of a relevant appeal by the taxpayer.
Lastly, in order for a recourse or appeal to be admissible, a proportional fee of 1% on the subject matter of the dispute must be paid, which may not exceed EUR 15,000.
However, if the fee exceeds EUR 3,000, only this amount is initially paid, and is additionally credited, if necessary, to the final court decision. Also, for as long as the case is pending before the courts, the surcharges (interest) on any outstanding amount are finally "charged" to the taxpayer.
Undo in CoS
The taxpayer (like the tax administration) may contest the decision of the Court of Appeal by appealing to the Council of State if the amount of the difference (principal tax) exceeds 40,000 euros. However, the appeal does not suspend the execution of the judgment of the Court of Appeal.
An appeal may be brought only for specific reasons provided for by law, such as breach of essential procedural requirements, misinterpretation or incorrect application of the law, etc. An appeal may also be granted only where there is no case-law of the Council of State or there is a conflict of the contested decision with case-law of the Council of State or other supreme court, etc.
It is therefore paradoxical that the most serious tax cases are often dealt with only to a degree, that is, only by the Court of Appeal (when the conditions for appeal are not met).
On the other hand, a case involving a smaller tax differential can be discussed at least in two grades by the Court of First Instance and the Court of Appeal.
G. Samothrakis, J. Panou
Posted on Sunday newspaper, “Kathimerini”, on April 29, 2018