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ενδικοφανής προσφυγή

ADMINISTRATIVE TAX APPEAL – LAWYER

The administrative appeal (ενδικοφανής προσφυγή) is mandatory before a taxpayer may file a judicial petition before the administrative courts.

1. What is the administrative appeal?

The administrative appeal (ενδικοφανής προσφυγή) is a procedure that the taxpayer is mandatorily required to follow when wishing to challenge an act of the tax authority, whether express or tacit, before opting for the route of filing a judicial petition before the administrative courts.

2. What is the legal framework governing the administrative appeal?

For acts issued by the tax authority, as well as for tacit refusals by the tax authority, the applicable provision is Article 63 of the Code of Tax Procedure (Law 4174/2013), as currently in force, as further specified by the issued Ministerial Circulars (POL).

3. What may the taxpayer request?

By filing the administrative appeal, the taxpayer may request the amendment or annulment of the contested act through a comprehensive re-examination of the case. To this end, the taxpayer may put forward both factual and legal pleas, submitting in support every relevant document available to them in electronic form.

4. Which is the competent body for filing the administrative appeal?

The competent body for the filing of the administrative appeal is always the tax authority that issued the act against the taxpayer or that tacitly refused a request submitted by the taxpayer by failing to issue the corresponding act. The tax authority forwards the administrative appeal and the relevant documents to the competent examining body within seven (7) days of their filing. In cases of abolition or suspension of operation, as the case may be, of the tax authority, department or office that issued the act or made the omission, the administrative appeal is submitted to the receiving Service, which then forwards it to the Dispute Resolution Directorate.

5. Which is the competent body for the examination of the administrative appeal?

The competent body for the examination of the administrative appeal is the Internal Re-examination Service of the Tax Administration, namely the current Dispute Resolution Directorate (DED) of the Independent Authority for Public Revenue (AADE).

6. What is the deadline for its submission?

The administrative appeal must be filed with the competent tax authority within a peremptory deadline of thirty (30) days from the service of the act on the taxpayer or from the occurrence of the omission. The deadline is suspended for the period from 1 to 31 August, which is not counted in its calculation. Specifically, for residents abroad, the relevant deadline is set at sixty (60) days.

7. Is the filing of an administrative appeal mandatory?

Yes. The taxpayer is required to file an administrative appeal. Its timely and lawful filing is a precondition for the subsequent admissible filing of a judicial petition before the Administrative Justice.

8. Can the inadmissibility resulting from the unlawful filing of the administrative appeal be cured?

The tax legislator has provided for two restrictively defined cases in which the taxpayer is “forgiven” for not having filed an administrative appeal. Where the tax authority did not inform the taxpayer of the obligation to file an administrative appeal before resorting to administrative justice, the tax judge will deem the judicial petition admissible. Furthermore, if the tax authority did not duly inform the taxpayer—that is, in writing upon service of the act—of the obligation to file an administrative appeal, the deadline for filing it, the body before which it must be lodged, the conditions for its filing and the consequences of failing to file it, any inadmissibility of the judicial petition arising from the failure to file or the defective filing of an administrative appeal is cured.

9. Is a lawyer required?

No. The procedure for filing the administrative appeal does not require a lawyer. It suffices that the relevant document is signed by the obligated taxpayer in the case of a natural person, or by the legal representative in the case of a legal person. In specific cases, the administrative appeal is filed: for a vacant inheritance, by the curator; for litigated property, by the temporary administrator; for sequestered property, by the sequestrator; for a bankrupt party, by the trustee in bankruptcy; for a minor, by the person exercising parental care or by the guardian, and where there are several such persons, by one of them; for a person under judicial assistance, by the judicial assistant; and in the case of a deceased taxpayer, by the heirs and, in general, by any person referred to in Article 64(1) of the Code of Administrative Litigation. In all of the above cases, the documents establishing the aforementioned capacities must be submitted together with the administrative appeal. Nevertheless, owing to the complexity of tax law, the technical nature of its provisions, the multitude of Ministerial Decisions and Circulars applicable in each case and the need to support the pleas with the relevant case-law in force, a lawyer is rendered invaluable by the circumstances.

10. Is a filing fee required for the submission of the administrative appeal?

No. The administrative appeal is filed without payment of a filing fee.

11. Is the imposed amount suspended upon the filing of the administrative appeal?

According to Ministerial Circular POL 1064/2017 (Government Gazette B’ 1440/27.04.2017), in force as of 28.4.2017, upon filing of the administrative appeal payment of 50% of the contested amount is suspended as resulting from the issuance of the contested act, on the condition that the remaining 50% has been paid, unless an application for suspension is also submitted in respect of the remaining 50%. The suspension takes effect from and through the lump-sum payment of the said percentage and, in the case of payment in instalments, from and through its full settlement. Every receipt of full payment of an amount corresponding to a standalone fine that is not ancillary to a principal liability—of taxes, fees, dues, contributions and duties payable to the State—is subject to stamp duty of 2%, plus a 20% OGA contribution. Payment may also be made after the filing of the administrative appeal and, in any event, no later than the issuance of the decision on the administrative appeal or, in case no decision is issued, within the one hundred and twenty (120) days provided for the issuance of such decision. “Payment” is taken to mean the voluntary payment, or the collection of the 50% payable through set-off or through the surrender of an amount withheld on a tax clearance/debt certificate, and not within the framework of compulsory enforcement measures undertaken. The suspension of the remaining 50% does not apply to direct assessment of tax, nor to acts of administrative tax assessment issued on the basis of data provided by the taxpayer in their tax return, pursuant to Article 63(3)(b) of the Code of Tax Procedure (KFD).

12. May I refrain from paying the 50% of the amount due that is required for filing the administrative appeal?

Yes. The taxpayer may submit an application for suspension of the payable percentage of fifty per cent (50%) of the contested amount of the act. The DED may suspend payment of that percentage only where it is judged that its payment would result in irreparable harm to the obligated party. Such suspension, if granted, applies until the issuance of the decision on the administrative appeal or, otherwise, until the lapse without action of the period prescribed for its issuance, namely 120 days from the filing of the administrative appeal with the tax authority that issued the act or made the omission.

13. How do I request suspension of payment?

The application for suspension is submitted within the document of the administrative appeal or separately, by means of a distinct document filed on the same day as the administrative appeal, before the tax authority that issued the act or made the omission. Upon submission of the application for suspension, and until the issuance of a decision thereon—or otherwise until the lapse without action of the period prescribed for its issuance—the taking of compulsory enforcement measures is suspended. Any suspension of payment does not relieve the obligated party from the obligation to pay default interest for late payment of the amount due.

14. Which supporting documents must be submitted with the application for suspension?

Together with the application for suspension, there must be submitted to the Dispute Resolution Directorate the supporting documents establishing the applicant’s pleas, and, mandatorily, a solemn declaration under Article 8 of Law 1599/1986, in which the applicant declares: (a) their worldwide revenues or income from any source for the previous and current year, and (b) their assets in Greece and anywhere abroad at the time of filing the application for suspension.

If the applicant is a natural person, the worldwide revenues or income from any source for the previous and current year must additionally be declared, as well as the assets, anywhere in Greece and abroad, of the applicant’s spouse and minor children at the time of filing the application for suspension.

If the applicant is a legal person or a legal entity of any form, the worldwide revenues or income from any source for the previous and current year must additionally be declared, as well as the assets, anywhere in Greece and abroad at the time of filing the application for suspension, of the legal persons and legal entities in whose capital the applicant participates, and of the natural persons who, pursuant to the relevant applicable provisions, are personally liable for the applicant’s tax obligations. The asset statement includes, in particular, real and contractual rights over real property, deposits of any kind and related banking products, investments in securities, motorised private means of transport, loans and donations, shares, stakes, voting rights or rights of participation in capital in any form of legal entity, and real and contractual rights over movables of value exceeding ten thousand (10,000) euros. Together with the asset statement, the applicant also declares the estimated market value of the assets included therein. For real property, the objective tax value (antikeimeniki) is also declared. If the applicant maintains accounting records under the Greek Accounting Standards (ELP) by the double-entry method, the latest balance sheet and the latest analytical general-ledger trial balance for the current year must be submitted with the application for suspension.

An application for suspension that is not accompanied by the foregoing items shall be dismissed.

15. When is the decision on the application for suspension issued?

The decision on the application for suspension is issued within thirty (30) days from the date of submission of the administrative appeal to the tax authority; otherwise the application for suspension is deemed to have been dismissed. A decision of the DED that is favourable to the obligated party entails suspension also of the other 50% which would otherwise be granted directly by operation of law upon payment, and is communicated immediately to the competent tax authority for its actions in accordance with the procedures provided in each case for the suspension of compulsory enforcement measures, with notification also to the obligated party. Where the DED dismisses the application for suspension, it may do so either by an express adverse decision or by a tacit adverse decision, inferred from the lapse without action of the thirty-day period without any relevant communication being made to the taxpayer. In any event, if, following dismissal of the application for suspension by any means, the obligated party proceeds to pay 50% of the contested amount, collection of the remaining 50% is suspended from the time of payment until the issuance of the decision on the administrative appeal or its tacit dismissal.

16. Is appearance by a lawyer or by the obligated party required before the Dispute Resolution Directorate?

In principle, appearance is not mandatory. In most cases, the documentary evidence accompanying the document of the administrative appeal (or of the application for suspension) in the electronic file suffices. However, if the DED deems it necessary, it may summon the obligated party or their attorney-at-law to a hearing. Furthermore, if new evidence is produced for the first time before the DED, or new factual circumstances are invoked for the first time, the obligated party must be summoned to a hearing in order to express their views in writing.

17. When is the decision on the administrative appeal issued?

Within one hundred and twenty (120) days of the filing of the administrative appeal with the tax authority that issued the act or made the omission, the DED issues a decision, taking into account the appeal, the information received from the obligated party, the views of the competent tax authority, and any other information relevant to the case. The deadline is suspended during the period from 1 to 31 August. If no decision is issued within the foregoing deadline, the administrative appeal is deemed tacitly dismissed by the DED, and the obligated party is deemed to have been notified of such dismissal upon expiry of the deadline. In any event, the decision on the administrative appeal also contains the final tax liability of the obligated party, the imposed amount, and the deadline for its payment. If, by the decision, the act of the tax authority is annulled, in whole or in part, or amended, the DED must adequately substantiate that decision with legal or factual reasoning. Where the act is annulled on grounds of formal defect, the competent tax authority acts anew in accordance with the terms set out in the decision of the Dispute Resolution Directorate.

18. Can the decision on the administrative appeal be challenged?

The taxpayer may challenge the decision of the DED before the competent ordinary administrative court in accordance with the general provisions of the Code of Administrative Litigation. In cases of tacit refusal by the DED, occurring upon the lapse without action of the statutorily prescribed deadline for the examination of the administrative appeal—namely 120 days from the filing of the administrative appeal—the taxpayer challenges, in the same judicial petition before the competent administrative courts, both the tacit refusal of the DED and the original tax act imposing the tax.

19. Is the imposed amount automatically suspended where a judicial petition is filed?

Upon the timely filing of a judicial petition before the competent administrative court against the decision on the administrative appeal, or against its tacit dismissal due to the lapse of the deadline for the issuance of the decision, payment of 50% of the contested amount is suspended, on the condition that the remaining 50% is paid, in a lump sum or in instalments, at any time up to the issuance of the final court judgment. If payment is made after compulsory enforcement measures have been taken, those measures are suspended from the time of payment onwards and until the issuance of the decision on the judicial petition. Likewise, where, owing to payment in instalments, full settlement of the 50% takes place at a later time, the suspension applies from that time onwards. The “contested amount” is taken to mean the amount finally imposed under the decision on the administrative appeal or, in the case of tacit dismissal thereof, the amount originally imposed under the act against which the administrative appeal was filed, or, in the case of partial challenge, the portion of those amounts that is contested by the petition.

20. Can the imposed amount be suspended by another route?

In any event, even in disputes arising from acts of direct tax assessment or acts of administrative tax assessment, suspension of execution of the express decision of the DED, or of its tacit dismissal, is possible by means of a court order issued on an application for suspension of execution before the competent administrative court. In such cases, collection of the entire amount judicially contested is suspended in accordance with the operative part of the order and until the issuance of a final decision.

21. May the Tax Authority challenge the decision of the DED?

No. The law expressly prohibits the tax authority that issued the act from challenging the decision of the DED.

22. May the taxpayer file a judicial petition directly before the administrative courts?

No. The filing of the administrative appeal is a precondition for the admissibility of the prospective judicial petition. If no administrative appeal is filed, any subsequent petition before the administrative court will, as a rule, be dismissed as inadmissible, without examination of its merits.

23. May the taxpayer file any other type of administrative appeal before the tax authority?

No. The procedure provided by law before the tax authority is exclusive and does not allow the taxpayer to take any other action before the tax authority for the purpose of challenging the act, other than filing an administrative appeal.

24. How is the amount payable by the taxpayer calculated?

Every payment, whenever it is made, relating to the amount contested by reason of the filing of the administrative appeal, is subject, as the case may be, to the corresponding default interest for late payment, in accordance with the provisions of Article 53 of the Code of Tax Procedure (KFD). Any suspension of payment does not relieve the obligated party from the obligation to pay default interest for late payment of the tax. In any event, during the lawful period for payment of the debts and during any suspension of payment thereof, the Tax Administration may take the measures provided for in Articles 46 and 49 of Law 4174/2013, where the conditions for their application are satisfied. 4. Where compulsory enforcement measures have been taken inadvertently during the period referred to in the preceding paragraph, the Tax Administration must lift them, and any sums collected on the basis of such measures are returned in accordance with the provisions of Article 48(2) of Law 4174/2013 and Article 83 of Legislative Decree 356/1974 (Code of Collection of Public Revenue – KEDE).

25. Is the legislative framework stable?

As is the case with every tax provision, monitoring tax legislation is absolutely essential to ensure that the citizen does not lose the right to judicial protection. In this area, in particular, the legislative framework is amended frequently, not only by formal statutes but also by decisions of the Secretary General of Public Revenue.

FREQUENTLY ASKED QUESTIONS ABOUT THE ADMINISTRATIVE TAX APPEAL – LAWYER

1. What is the administrative appeal and why is it needed?

The administrative appeal (ενδικοφανής προσφυγή) is the mandatory first step when the taxpayer wishes to challenge an act of the tax authority, whether express or tacit. It is filed before the Dispute Resolution Directorate (DED) of AADE and constitutes a necessary precondition for the subsequent admissible filing of a petition before the administrative courts. Through it, annulment or amendment of the contested act is sought by means of a comprehensive re-examination of the case, with the assertion of factual and legal pleas. If it is omitted or filed out of time, the subsequent judicial petition is, as a rule, dismissed as inadmissible without examination of the merits.

2. Within what time must the administrative appeal be filed?

The deadline is peremptory and is set at thirty (30) days from the service of the act or the occurrence of the omission of the tax authority. For residents abroad, the deadline is extended to sixty (60) days. The period from 1 to 31 August is not counted in the calculation. The DED issues a decision within one hundred and twenty (120) days of submission. If the deadline lapses without action, the appeal is deemed tacitly dismissed, whereupon a new deadline starts running for the filing of a judicial petition. Compliance with the deadlines is critical, since late filing leads to definitive loss of the right to judicial protection.

3. Must I pay the amount due in order to file the appeal?

Upon filing of the administrative appeal, payment of 50% of the contested amount is automatically suspended, provided the remaining 50% is paid. No filing fee is required. If payment of the 50% would cause irreparable harm, an application for suspension may be submitted to the DED, accompanied by a solemn declaration of worldwide revenues and assets of the taxpayer, the spouse and the minor children. The DED decides within 30 days; otherwise the application is deemed dismissed. If suspension is granted, compulsory enforcement measures are also suspended. Suspension of payment does not relieve from default interest for late payment.

4. Which body examines the appeal and what may it decide?

The competent examining body is the Dispute Resolution Directorate (DED) of the Independent Authority for Public Revenue (AADE). The appeal is filed with the tax authority that issued the act and forwarded to the DED within seven (7) days. The DED may annul the act in whole or in part, amend it or uphold it. Where the act is annulled on grounds of formal defect, the tax authority acts anew in accordance with the decision. The issuing tax authority is expressly prohibited from challenging the decision of the DED. The taxpayer may challenge the decision by filing a petition before the competent administrative court.

5. What documents are required for its submission?

The document of the administrative appeal is required, with detailed factual and legal pleas, together with every relevant supporting document in electronic form. The contested act, particulars of the tax authority, documents of legal standing where the appeal is filed by a representative, heir, trustee in bankruptcy, guardian or judicial assistant, and supporting case-law are submitted along with it. For an application for suspension, a solemn declaration under Law 1599/1986 is required, with worldwide revenues and asset position, including details of real property, deposits, shares, vehicles and banking products. For those keeping double-entry books, a balance sheet and analytical trial balance must be produced. The absence of these items leads to dismissal of the application for suspension.

6. What is the role of the lawyer in the procedure?

Formally, the filing of the administrative appeal does not require a lawyer, nor is appearance before the DED mandatory. In practice, however, the complexity of tax legislation, the great number of ministerial decisions, circulars and POL, the need for substantiated invocation of case-law and the proper formulation of factual and legal pleas make the contribution of a lawyer of substantial importance — especially considering that the taxpayer faces AADE and the Legal Council of the State (NSK). Our firm undertakes the review of the contested act, the drafting of the appeal and the application for suspension, the preparation of supporting evidence, the monitoring of deadlines and the continuation of the case before the administrative courts, where the DED dismisses the appeal in whole or in part.


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