The Greek codified civil law rules provide that a married couple is expected to share a single residence. Thus, the Greek Tax Administration has traditionally followed the concept of a single joint family residence for tax purposes. It has considered that, if the spouse is left behind, the departing taxpayer may not change his/her tax residence status from Greek to foreign, regardless of any other parameters, following a narrow interpretation of the centre of vital interests.
One of the most notable aftermaths of the severe financial crisis in Greece has been the so-called brain drain. Many Greeks were forced to move out of Greece in search of work abroad. In such cases, the family of the departing taxpayer has often chosen to remain in Greece, without this having any impact on the family status of the individual.
In such cases, the Tax Administration has refused to admit the change of tax residence of the individual and both the taxpayer and the spouse had to continue filing a joint income tax return as Greek tax residents. Nevertheless, the Supreme Administrative Court's decision 1445/2016, issued on the concept of separate tax residence of spouses, dealt with a case where a German citizen worked and lived at his home in Germany, whereas the Greek citizen spouse worked for the core of Greek public administration and along with their common child lived at their home in Greece. It is noted that, according to domestic tax rules, a Greek citizen working for the Greek public administration is considered a Greek tax resident, even if public service duties are carried out abroad. The case was introduced to the Supreme Administrative Court as a pilot trial, i.e. fast track trial addressing matters of general public interest.
The taxpayer challenged the view that the spouses have by definition a single joint tax residence based on domestic tax rules, as well as the alignment of such rules (even if assumed as existent) with the double tax treaty between Germany and Greece. The court's decision listed the OECD tie breaker rules on a "permanent home available" and on the "centre of vital interests" as indicators of the tax residence. However, the court did not give exclusive priority to the location where the rest of the family members reside over other determinants and went further to state that spouses having separate residences is conceptually possible, especially in the contemporary context (social, economic and ethical perceptions and factual background of our era). The court concluded that the two spouses may conceptually have separate tax residence status and that the foreign tax resident may in such (exceptional) case exclude foreign sourced income from his Greek tax return, in case he has to file one (e.g. for any Greek sourced income).
Moreover, the Supreme Administrative Court's decision 1215/2017 judged on a case where spouses had separate tax residences and referenced back to Supreme Administrative Court decision 1445/2016. The court rejected the argument of the Greek Tax Administration that only divorced or de facto separated couples are allowed to file separate income tax returns, and allowed for separate filings by the foreign tax resident taxpayer and the Greek tax resident spouse.
The abovementioned jurisprudence constitutes a significant step forward in the notion of the tax residence in Greece, taking into account the particular social and economic circumstances of our times. It remains to be seen whether the Greek Tax Administration will fully harmonise its stance with the above discussed case law.
Konstantinos Mavraganis (konstantinos.mavraganis@gr.ey.com), Maroussi
EY
Tel: +30 210 2886 000
Website: www.ey.com
