All material subject to strictly enforced copyright laws. © 2022 ITR is part of the Euromoney Institutional Investor PLC group.

Greece: GAAR introduced for the first time in Greek tax law

stathis.jpg

Dionisios Stathis

On July 26 2013, new Greek Tax Procedure Code (l. 4174/2013) was enacted by the Greek Parliament, which introduced for the first time the concept of general anti-avoidance rule (GAAR). In particular, according to the newly established rule, effective as of January 1 2014, the tax administration has the right to ignore any artificial arrangement or series of artificial arrangements giving rise to tax avoidance or tax benefits in general. The new rule provides for a definition, scope and brief description of the terms "arrangement", "series of arrangements" and "artificial". As regards scope, it applies to cases where the legal treatment of a sole arrangement differs from the legal treatment of a series of arrangements taken together, where no sound business reasons exist for the effecting of the arrangement (or series of arrangements), where the various arrangements taken as a whole contradict to and cancel each other and where the tax benefit(s) obtained do not reflect the business risks undertaken by the contracting parties. It is interesting to note that, contrary to other jurisdictions, Greece did not have so far any legal tradition in respect of substance over form or similar principles or doctrines emanating either from case law or from legal practice in general. Perhaps the only relevant concept in Greek legal theory was that of sham or fictitious transactions found predominantly in Greek civil law. Traditionally the Greek tax administration used to apply in the course of both domestic and treaty law the opposite general principle of form over substance which was based on the widely accepted notion that the tax rules must be interpreted narrowly by the tax administration.

From a practical perspective, the introduction of an explicit GAAR in domestic tax law may have significant impact in contemplated transactions and/or tax planning structures. For example, even though Greece has not introduced so far anti-treaty shopping rules either domestically or in the double tax treaties (DTTs) concluded with other states, it could be argued that, based on the domestic GAAR, treaty benefits may be limited and/or denied even to treaty residents under certain circumstances and especially where it may be evidenced that the interposition of an entity in a treaty country was effected solely to obtain treaty benefits.

Similarly, from an indirect tax perspective, instances of stamp duty mitigation in loan transactions on the basis of the territoriality principle may now be challenged on the grounds that the conclusion and/or execution of a loan overseas may still be subject to Greek stamp duty charges if it may be extracted that the overseas conclusion and execution was not substantiated by any business reasons but was encouraged merely to enjoy the stamp duty exemption.

Another practical example where the introduction of a GAAR may have serious consequences is the equity injection in a Greek corporation through share premium (instead of nominal share capital) with a view to qualifying for capital duty exemption. It may now be argued that such a technique, which is popular in Greek tax practice, may be challenged in the course of a future tax audit if a mere comparison is attempted between the same transaction with and without the tax avoidance element (that is share capital increase through share premium and through nominal share capital respectively).

No ministerial decisions, circulars and/or other official guidelines have been issued thus far to complement the aforementioned GAAR's interpretation and, consequently, there is great uncertainty at the moment regarding the exact scope and object of that rule. It is expected that the Greek tax administration will supplement this GAAR with additional safe-harbour tests so that it will be able for the taxpayers to overtly distinguish between what is allowed and what is prohibited under Greek tax law, especially before they proceed to inbound and outbound tax planning structures.

Dionisios Stathis (dionisios.stathis@gr.ey.com)

EY

Tel: +30 210 2886573

Fax: +30 210 2886908

Website: www.ey.com

more across site & bottom lb ros

More from across our site

The Biden administration is about to give $80 billion to the Internal Revenue Service to enhance the tax authority’s enforcement processes and IT systems.
Audi, Porsche, and Kia say their US clients will face higher prices under the Inflation Reduction Act after the legislation axes an important tax credit for electric vehicle production.
This week Brazil’s former President Luiz Inacio Lula da Silva came out in support of uniting Brazil’s consumption taxes into one VAT regime, while the US Senate approved a corporate minimum tax rate.
The Dutch TP decree marks a turn in the Netherlands as the country aligns its tax policies with OECD standards over claims it is a tax haven.
Gorka Echevarria talks to reporter Siqalane Taho about how inflation, e-invoicing and technology are affecting the laser printing firm in a post-COVID world.
Tax directors have called on companies to better secure their data as they generate ever-increasing amounts of information due to greater government scrutiny.
Incoming amendments to the treaty could increase costs on non-resident Indian service providers.
Experts say the proposed minimum tax does not align with the OECD’s pillar two regime and risks other countries pulling out.
The Malawian government has targeted US gemstone miner Columbia Gem House, while Amgen has successfully consolidated two separate tax disputes with the Internal Revenue Service.
ITR's latest quarterly PDF is now live, leading on the rise of tax technology.
We use cookies to provide a personalized site experience.
By continuing to use & browse the site you agree to our Privacy Policy.
I agree