This country-specific Q&A provides an overview to tax laws and regulations that may occur in Greece.
It will cover witholding tax, transfer pricing, the OECD model, GAAR, tax disputes and an overview of the jurisdictional regulatory authorities.
This Q&A is part of the global guide to Tax. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/tax-2/
How often is tax law amended and what are the processes for such amendments?
Unfortunately, tax law constantly changes in Greece. It is estimated that Parliament produces a new law every 55 hours. During the past three years, more than 20 tax laws have been passed and in 2003 alone 695 ministerial decisions with tax issues. In principle, legislation is subject to prior consultation with industry but not in an efficient manner because consultation time is usually too little. Also, when it comes to new tax burdens, tax rates and other issues for which interests are prima facie conflicting, consultation with industry is not very effective.
What are the principal procedural obligations of a taxpayer, that is, the maintenance of records over what period and how regularly must it file a return or accounts?
Pursuant to Code of Tax Procedure (Article 13 par.2 of Law 4174/2013), a taxpayer must keep his/her records, accounting books and returns for five (5) years from the end of the fiscal year in which there is an obligation to declare them or until the prescription of tax claims or until the final judgment in case of litigation or after the payment of the tax liabilities in full. In practice it is advisable to keep tax records for more.
Who are the key regulatory authorities? How easy is it to deal with them and how long does it take to resolve standard issues?
The key regulatory authorities are the General Directorate of Public Revenue an the Directorate For Dispute Resolution (Former Internal Review Unit). Many issues are solved a the local tax office level. For questions related to the interpretation of tax laws tax payers may refer to the relevant departments of the Ministry o Finance (VAT, capital taxes department, income tax department). There is a statutory obligation for public authorities to respond to applications of citizens within 50 days. In practice the time required for resolving standard issues is not predictable and delays are often very long and frustrating.
Are tax disputes capable of adjudication by a court, tribunal or body independent of the tax authority, and how long should a taxpayer expect such proceedings to take?
The final stage of a tax dispute is the submission of an appeal by the taxpayer before the Administrative Courts. Unfortunately, a taxpayer should expect for long until the determination of the hearing date and the issuance of a final judgement.
Are there set dates for payment of tax, provisionally or in arrears, and what happens with amounts of tax in dispute with the regulatory authority?
Most taxes are payable in arrears except for income tax which provides for advance payment ranging from 75% to 100% depending on the type of entity. Advance payment of income tax is calculated according to the income tax of the previous year. Tax liabilities under dispute are postponed but not in full. By virtue of article 63 of the Code of Tax Procedure, 50% of the total liability is postponed upon the filling of an administrative appeal, under the condition that the remaining 50% is paid.
Is taxpayer data recognised as highly confidential and adequately safeguarded against disclosure to third parties, including other parts of the Government?
Confidentiality of taxpayer data is protected by the provisions of article 17 of the Tax Procedure Code. Generally, confidentiality of tax matters is adequately protected. There are statutory exceptions where the confidentiality is waived, for example in favour of governmental agencies, the judiciary, the Anti-Money Laundering Authority etc.
Is it a signatory (or does it propose to become a signatory) to the Common Reporting Standard? And/or does it maintain (or intend to maintain) a public Register of beneficial ownership?
Yes, Greece is one of the signatories of the Common Reporting Standard and has committed to start its implementation as of 1.1.2016. There is no public register of beneficial ownership. However, there is an intention to soon establish a "public registry of estate", which will contain all moveable and immoveable assets of Greek taxpayers, even cash and pieces of art. No details are available about how indirect beneficial ownership in companies will be reported.
Are there any plans for the implementation of the OECD BEPs recommendations and if so, which ones?
Although the Greek Tax System is difficult to adjust, most of the actions have already implemented. The following actions are expected to be implemented, but the time has not been determined:
• Hybrids (Action 2)
• Prevent treaty abuse (Action 6)
• Disclosure of aggressive tax planning (Action 12)
• Dispute resolution (Action 14).
Is there a GAAR and, if so, how is it applied?
The Greek GAAR is contained in article 38 of the Tax Procedure Code (KFD), It provides that upon assessing taxes, tax authorities have the right to disregard any configuration of legal relations, which is artificially done (artificial manipulation) in order to avoid taxation and due to that the configuration results in obtaining tax benefits.
It is clarified that the tax authorities have not the discretion, as might one incorrectly consider drifted by the wording of the relevant provision, but have a circumcised power. This also arises from the continuity of the provision, which provides that in such case, when the tax authorities note an artificial manipulation as mentioned above, they are required to aim, for tax purposes, at their particular substance from a purely economic perspective.
The crucial elements of the actual provision, which must be met in order for the tax authorities to have the right to ignore a tax purposes legal relations’ configuration and which must be proved (burden of proof) by the tax authorities, are the following:
a) Manipulation or series of manipulations.
b) This manipulation (or a series of manipulations) should be artificial.
c) The artificial manipulation should aim at anti - avoidance.
d) The artificial manipulation should result in a tax advantage.
The tax authorities shall consider whether (each alternative or more):
1) The legal description of the individual stages which consist a manipulation, is incompatible with the legal substance of the whole manipulation.
2) The manipulation or a series of manipulations is applied in a manner that is not compatible with an ordinary (logical, normal) business behavior.
3) The manipulation or a series of manipulations includes elements which result in the hedging or the annulment between them.
4) The conclusion of transactions has a rotatory nature.
5) The manipulation or an array of manipulations leads to a significant tax advantage, but this is not reflected on the business risks, which the taxpayer undertakes, or on his cash flows.
6) The expected profit margin before the tax is significant compared to the amount of the expected tax advantage.
The law requires for the manipulation to be "artificial" in order for the tax authorities to have actually the right not to take it into account, it entails that if a manipulation results in a tax advantage, without being feigned in that sense, then the tax authorities have no right not to take it into account, but have to respect it.
To ascertain whether the artificial manipulation has indeed resulted in a tax advantage, the tax authorities should compare the amount of the tax due, given the present manipulation, with the amount due by the same taxpayer and under the same conditions, if this manipulation would not be taken into account.
Does the tax system broadly follow the recognised OECD Model?
Does it have taxation of; a) business profits, b) employment income and pensions, c) VAT (or other indirect tax), d) savings income and royalties, e) income from land, f) capital gains, g) stamp and/or capital duties.
If so, what are the current rates and are they flat or graduated?
The Greek tax system broadly follows the recognised OECD Model.
The following apply:
a) Business profits: 29%; 13% (for agricultural cooperative and producer groups); flat.
b) Employment income and pensions: 0 -20.000 at 22%; 20.001 -30.000 at 29%; 30.001 – 40.000 at 37%; 40.001 - ... at 45%; graduated.
c) VAT (or other indirect tax); 24%; flat.
d) Savings income: 15%; flat.
e) Royalties: 20%; flat.
f) Income from land: 0 -12.000 at 15%; 12.001 -35.000 at 35%; 35.001 - ... at 45%; graduated.
g) Capital gains: The Greek capital tax includes dividends, savings income, royalties, and income from land. Dividends at 15%.
h) Stamp duties: Contracts and documents at 3%; Commercial acts and documents at 2%; flat.
i) Capital duty (special solidarity levy): 0 -12.000 at 0%; 12.001 -20.000 at 2,20%; 20.001 – 30.000 at 5%; 30.001 – 40.000 at 6,5%; 40.001 – 65.000 at 7,5%; 65.001 – 220.000 at 9%; >220.000 at 10%; graduated.
Is the charge to business tax levied on, broadly, the revenue profits of a business as computed according to the principles of commercial accountancy?
Are different vehicles for carrying on business, such as companies, partnerships, trusts, etc, recognised as taxable entities?
Pursuant to Greek Income Tax Code (Article 2 and 45 of Law 4172/2013), the following are considered as taxable entities:
a. Capital companies which are established in Greece or abroad,
b. Partnerships which are established in Greece or abroad,
c. Non-profit legal entities of public or private law Referred established in Greece or abroad and including all kinds of associations and foundations,
d. Cooperatives and their associations,
e. Civil societies, profit or non-profit civil law companies,
f. Participatory or obscure companies,
g. Joint ventures,
h. Offshore companies and
i. Trusts or any arrangement of similar nature.
Is liability to business taxation based upon a concepts of fiscal residence or registration?
Primarily it depends on registration but essentially on both. More specifically, even entities that are not registered in the country are subject to tax for their operations inside the country according to the rules for permanent establishments and the GAARs.
Are there any special taxation regimes, such as enterprise zones or favourable tax regimes for financial services or co-ordination centres, etc?
Pursuant to VAT Code (Law 2859/2000), there are the following special VAT taxation regimes:
a. Tax warehouses (Article 26)
b. Small enterprises (Article 39)
c. Farmers (Articles 41,42)
d. Travel agents (Article 43)
e. Manufactured tobacco (Article 44)
f. Reselling of artistic goods or those with collectible or archaeological value (Article 45)
g. Auction sales (Article 46)
h. Investment gold (Article 47)
i. Telecommunication, radio, television and online services (Article 47a, 47b, 47c).
Are there any particular tax regimes applicable to intellectual property, such as patent box?
There is not such a tax regime. The only provision is the taxation of the income from royalties at rate of 20% according to Income Tax Code (Articles 38, 40 of Law 4172/2013).
Is fiscal consolidation employed or a recognition of groups of corporates for tax purposes and are there any jurisdictional limitations on what can constitute a group for tax purposes? Is a group contribution system employed or how can losses be relieved across group companies otherwise?
According to Articles 31-36 of Law 4308/2014, the “Group companies” – under conditions - have to prepare consolidated financial statements. In particular, the assets and liabilities of the above entities are entirely incorporated in the consolidated balance sheet. In addition, their revenues, profits, costs and losses are fully consolidated in the consolidated income statement apart from the joint activities, which are consolidated using the method of proportional consolidation.
Is there a CFC or Thin Cap regime?
Greek CFCs rules
The New Income Tax Code (Law 4172/2013 hereinafter “ITC”) introduced in Greek Tax legislation provisions pertinent to Controlled Foreign Corporation Rules (“CFCs rules”).
Pursuant to Article 66 ITC, taxable income shall include the non-distributed income of a legal person or legal entity (which is tax resident in another country) provided all the following conditions are met:
a) The taxable person, on his own or together with related parties, directly or indirectly holds shares, units, voting rights or holdings in the capital over 50% or is entitled to collect more than 50% of the profits of the said legal person or legal entity.
b) The said legal person or legal entity is taxable in a non-cooperating state or state with a preferential tax regime, namely a special regime which allows a materially lower level of tax than the general regime.
c) More than 30% of the net income before tax generated by the legal person or legal entity falls within one or more of the categories specified in paragraph 3.
d) It is not a company whose main class of shares is traded on a regulated market.
The above shall not apply to cases where the legal person or legal entity is a tax resident of a Member State of the European Union or a tax resident of a country which is a party to the EEA Agreement, unless the legal person or legal entity’s establishment or economic activities are an artificial arrangement devised for the real purpose of avoiding the corresponding tax.
The categories of income which shall be taken into account for the purpose of applying the aforementioned, provided that more than 50% of the corresponding category of income of the legal person or legal entity comes from transactions with the taxable company or its related parties, are the following:
a) interest or any other income generated by financial assets,
b) royalties or other income generated by intellectual property,
c) dividends and income from the transfer of shares,
d) income from moveable assets,
e) income from real estate property unless the taxable legal person or legal entity’s State would not be entitled to tax the income based on an agreement which has been concluded with the third country,
f) income from insurance, banking or other financial activities.
The above categories of income shall be calculated based on the tax year and at the tax rate which applies to profits from the business activities of natural persons (Article 29 ITC) or at the tax rate which applies to profits from the business activities of legal persons or legal entities (Article 58 ITC), whichever is appropriate.
Thin Capitalisation rules
The provisions of Article 49 of the Greek Income Tax Code (Law 4172/2013), as in force introduced thin capitalisation rules to combat abuses. These rules are in accordance with international practice and the guidance set out in the Resolution of the Council of the European Union of 8 June 2010 on coordination of the Controlled Foreign Corporation (CFC) and thin capitalisation rules within the European Union (2010/C156/01).
The provisions of paragraph 1 of that Article state that without prejudice to paragraph 3, interest expenses are not recognised as deductible business expenses to the extent that surplus interest expenses are over 30% of the taxable EBITDA. EBITDA is set based on the financial statements prepared in accordance with the Greek accounting rules using tax adjustments specified in the Greek Income Tax Code (ITC), in other words after adjusting the business’ accounting results in line with the provisions of the ITC (Law 4172/2013).
For the purposes of implementing this Article, interest has the meaning given to it in Article 37(1) of Law 4172/2013.
Under the provisions of Article 72(9)(a) of Law 4172/2013, which were inserted by Article 26(3) of Law 4223/2013, the rate of 30% of EBITDA applies to interest expenses incurred in tax years commencing from 1.1.2017 onwards. In the transitional period (i.e. tax years which commence from 1.1.2014 up to 31.12.2016) the following EBITDA rates apply:
60% for tax years commencing from 1.1.2014.
50% for tax years commencing from 1.1.2015.
40% for tax years commencing from 1.1.2016.
Paragraph 2 states that the term ‘surplus interest expenses’ means a surplus of interest expenses compared to interest income.
Interest expenses means all interest the business pays in any tax year, whether relating to loans received from an affiliated or other company, or from a credit institution, from corporate bonds, etc. It is understood that interest expenses do not include loan expenses. To give effect to this Article, interest expenses do not include any capitalised interest. Likewise, interest income includes all income from interest, irrespective of the cause, which the business earns in any tax year.
Paragraph 3 states that the interest expenses referred to in paragraph 1, i.e. surplus interest expenses exceeding 30% of EBITDA, are fully recognised as deductible business expenses, provided the amount of net interest expenses entered in the accounting books does not exceed € 3,000,000 a year.
The provisions of Article 72(9) (b) of Law 4172/2013, as in force, state that the above threshold of € 3,000,000 applies to interest expenses incurred in tax years commencing from 1.1.2016 onwards. In the transitional period (i.e. tax years which commence from 1.1.2014 up to 31.12.2015) the threshold for interest expenses is € 5,000,000.
Consequently, when interest expenses are below the threshold applicable in each case (€ 3,000,000 or € 5,000,000 respectively), they are deductible from the business’ gross income, subject however to the provisions of Article 23(a) of that same Law which state that interest from loans the business receives from third parties, other than bank loans, inter-bank loans and bond loans issued by companies, are not deductible from the business’ gross income, to the extent that they exceed the interest which would arise if the interest rate were equal to the interest rate on open account loans to non-financial businesses, as set in the Bank of Greece’s Bulletin of Conjunctural Indicators for the nearest time period prior to the date of borrowing.
It is clear from these points that in tax years which commence in the period from 1.1.2014 to 31.12.2014, the non-deductible amount is the positive amount resulting from the formula below, when interest expenses exceed € 5,000,000: [Interest expenses – Interest income] – 60% x EBITDA
Likewise, in subsequent tax years, using the same formula, the following percentage rates x EBITDA and interest expenses thresholds are to be used:
50% x EBITDA and an interest expenses threshold of € 5,000,000 for tax years commencing in the period from 1.1.2015 to 31.12.2015.
40% x EBITDA and an interest expenses threshold of € 3,000,000 for tax years commencing in the period from 1.1.2016 to 31.12.2016.
30% x EBITDA and an interest expenses threshold of € 3,000,000 for tax years commencing in the period from 1.1.2017 onwards.
Paragraph 4 states that all interest expenses not deducted in accordance with paragraph 1 of this Article are to be carried forward, without time restrictions, to be deducted [in the future] from the business’ gross income.
To give effect to this paragraph, the public administration accepts in Circular 1037/2015 that the non-deducted amount of interest expenses in each tax year must be carried forward to subsequent tax years in which the surplus interest expenses are below the relevant percentage of EBITDA, as applicable from time to time. Note that the amount carried forward in each tax year cannot exceed the amount which arises from the percentage of EBITDA applicable for that same tax year, less the surplus interest expenses for that year, given that the percentage of EBITDA is the maximum permissible amount of interest expenses deductible in any given year.
Is there a transfer pricing regime and is it possible to obtain an advance pricing agreement?
Yes, the transfer pricing regime is provided in articles 21 and 22 of the Code of Tax Procedure. The Greek provisions on transfer pricing apply not only to the sale of goods and the provision of services, but also to the transfer of shares, real estate etc. Article 21 provides the obligation of affiliated enterprises or even those enterprises which have the possibility of substantial influence in one of the associated companies, - including the permanent establishment in Greece of foreign enterprises (for their transactions with their central department), as well as domestic legal entities for their transactions with their permanent establishments abroad - to keep a transfer pricing documentation file. According to the Article 21, many transactions or transfers are exempted from the above obligation depending on their amount or the companies’ turnover.
The aforementioned affiliated entities may submit before the General Secretariat an application for the advance approval of the methods applied for the pricing of certain, future, cross- border transactions with the affiliated entities. The decision of the General Secretariat upon the application is issued within 120 days from the submission and it lasts for 4 years. The decision may be revised, by the General Secretariat or withdrawn or cancelled by the Tax Administration accordingly.
No official reactions have been publicised in reference to the Starbucks and Apple cases.
Are there any withholding taxes?
In accordance with Articles 59 and 60 of Law 4172/2013 (Income Tax Code in force), withholding tax is made directly at source in the following cases: a) payment of pensions to individuals by legal entities, b) insurance payments by social security funds, c) acquisition of business profits by individuals and d) payments or benefits from legal entities to their employees.
Furthermore, under Article 62 of Law 4172 / 2013, the following payments are subject to withholding tax also: a) dividends, b) interests, c) royalties, d) the fees for technical services, management fees, the consulting fees and other fees for similar services, whether rendered in Greece or not, when the recipient of the remuneration is an individual, e) indemnity paid in lump sum or in the form of periodical payment under group insurance pension contracts and f) the surplus value acquired by an individual in case of transferring property.
An exception is provided under conditions for legal entities with tax domicile in Greece, when receiving remuneration for the services referred to in paragraph d.
Furthermore, any legal entity which is not a tax resident in Greece and receives fees for technical services, management fees, consulting fees or remuneration for such services is subject to withholding tax.
Finally, legal entities established in Greece or have a permanent establishment in Greece and receive fees for royalties in accordance with paragraph c’ mentioned above shall not be subject to withholding tax in accordance with Article 64 of Law 4172 / 2013.
For the above mentioned cases, the withholding rates are as follows: a) for dividends fifteen percent (15%), b) for interests fifteen percent (15%), c) for royalties and other payments twenty percent (20%), d) for fees for engineering projects, administration fees, consulting fees or similar services twenty percent (20%), e) for indemnity paid in the form of periodical payment fifteen percent (15%) , whilst for indemnity paid in lump sum up to the amount of forty thousand (40,000) euro ten percent (10%) and for amounts exceeding forty thousand (40,000) euro twenty percent (20%) and f) for the surplus value from the transfer of real property acquired by an individual, fifteen percent (15%).
Furthermore, government authorities, other than companies, are obliged, during the the supply of all kinds of goods or services by individuals or legal entities, in the payment or the issuance of the payment order of their value to withhold income tax, which is calculated upon the net amount of the value of the goods or services at the rate as follows: a) at the rate of one percent (1%) for liquid fuel and tobacco products, b) at the rate of four percent (4%) for other goods and c ) at the rate of eight percent (8%) for the provision of services.
The withholding tax exhausts the tax liability in case the person receiving the payment, other than the fees referred to in subparagraph d, which is subject to withholding tax, is an individual or legal entity that receives fees for services according to case d’ and that neither has a tax residence in Greece, or maintains a permanent establishment in Greece.
If the withholding tax does not exhaust the tax liability, the tax withheld is credited against the income tax to be ascertained from business or corporate income tax of legal entities.
Are there any recognised environmental taxes payable by businesses?
In Greece, there have not been any systematic attempts for the implementation of environmental taxes. However, there are many indirect taxes, which, in one way or another, are related to the environment.
These are the “excise duties”, which are imposed in the following:
a. Fuels (i.e. unleaded petrol, Diesel , kerosene, liquid gas)
b .Domestic heating oil
c .Energy products
d. Ethyl alcohol
e. Manufactured tobacco products
f. Refill liquid of electronic cigarettes ( from 01.01.2017)
Is dividend income received from resident and/or non-resident companies exempt from tax? If not how is it taxed?
According to articles 40 paragraph 1 and 64 paragraph 1 a of Law 4172 / 2013, any dividends distributed during the year 2016, are taxable and subject to withholding tax at 10%.
However, according to the provisions of article 112 paragraph 7 of Law N.4387/2016, the tax rate on dividends was increased from 10% to 15%, starting from 01.01.2017, in order to impose the same rate on income from the same category (i.e. income from capital). Similarly, with the provisions of par. 8 of the above article 112, article 64 paragraph 1 of Law 4172/2013 is amended, so that the rate of withholding tax on dividends to be set at 15% instead of 10% as applied previously. Therefore, any dividends to be distributed during the next fiscal year, i.e. 2017 and thereafter, will be subject to withholding tax of 15%.
More specifically, we distinguish the following cases, regarding the taxation of dividends for legal entities:
A. Taxation of domestic-sourced dividends acquired by domestic legal entities, with profit purpose or otherwise, and foreign legal entities with a permanent establishment in Greece:
According to Circular (“POL”) No. 1042 / 26.01.2015 of the Ministry of Finance, income from dividends acquired by domestic legal persons or legal entities, for profit purpose or otherwise, as well as by foreign legal entities with an establishment in Greece, is subject to withholding tax, which does not exhaust the tax liability, but this income is taxed as income from business under the provisions of Article 47 § 2 of Law 4172/2013, and the tax withheld is offset against the income tax, with the application of provisions of article 64 paragraph 4 of Law 4172/2013. If this income has been already taxed abroad, this tax is offset against the income tax of the legal entity or of the permanent establishment under Article 9 of Law 4172/2013 ( "foreign tax credit").
B. Taxation of nationally-sourced dividends acquired by Legal Persons or Legal Entities that do not have their tax domicile in Greece and do not maintain a permanent establishment in Greece :
Legal persons or legal entities that do not have their tax domicile in Greece and do not maintain a permanent establishment in Greece, are subject to tax in this territory, subject to the provisions of Article 63 of Law 4172/2013 ( "exemption for certain intercompany payments') . Specifically, a rate of 10% of withholding tax is performed, which (withholding) exhausts the tax liability in accordance with article 36 paragraph 2 and article 64 paragraph 3 of Law 4172/2013.