espa espa
Non imposition of a fine (by error)
Date: 15/02/2022 12:15



1. The provisions:
a. of article 63 of Law 4174/2013 (Government Gazette A' 170), as amended applies
b. of article 10 of D.ORG.A 1125859 EX 2020/23.10.2020 Decision of the Governor of AADE. (Government Gazette B' 4738/26.10.2020) on the subject "Organization of the Independent Public Revenue Authority (AADE.)"
c. of POL.1064/2017 Decision of the Governor of the Independent Public Revenue Authority (Government Gazette B 1440/27.4.2017)
d. of article six, paragraph 4, of the Legislative Content Act of 30.3.2020 (Government Gazette A' 75) as ratified by Law 4684/2020 (Government Gazette A' 86), of the no. A.1049/2021 Joint Decision of the Deputy Minister of Finance and the Governor of the Independent Public Revenue Authority (Government Gazette B 984/12.3.2021), as well as the no. A.1273/2020 (Government Gazette B' 5597/21.12.2020), A.1241/2020 (Government Gazette B' 4804/30.10.2020) and A.1215/2020 (Government Gazette B' 4254/30.9.2020) of similar joint decisions

2. POL.1069/2014 Circular of the General Secretariat of Public Revenue of the Ministry of Finance.
3. Under number D.E.D. 1126366 EX 2016/30.08.2016 (Government Gazette 2759/t.B'/01.09.2016) Decision of the Head of the Dispute Resolution Directorate "Granting signature authorization".

4. The filing date 20.1.2021 and protocol number street against the resident's appeal against the TIN of the implicit rejection of the amended income tax return for the fiscal year 2013 of the Head of the D.O.Y Psychikos and the related documents submitted with it.
5. The opinions of D.O.Y. Holargou.
6. The proposal of the designated employee of Department A4 (ID TEN 120/2021) as reflected in the draft decision.

On the 20.1.2021 and with the protocol number of the internal appeal with VAT number, which was filed on time and after the study and evaluation of all the existing documents in the relevant file and the stated reasons for the internal appeal, we conclude the following:

The applicant, with the present contested appeal, requests the annulment of the above contested act citing, among others, the following reason, that: on 18.12.2015 she submitted an amended income tax return for the financial year 2013 (income 2012), due to a factual error, instead of for the correct household year 2014 (2013 income). On 19.12.2020 he submitted an amendment for the year 2014 and thus for the retroactive gross income of 4,885.89 euros he was taxed twice.
Because, according to the provisions of article 19 of Law 4174/2013 it is defined: "1. If the taxpayer finds that the tax return he submitted to the Tax Administration contains an error or omission, he is obliged to submit an amended tax return 3.a. An amending tax return is submitted at any time until notification of the provisional determination of the tax by the Tax Administration or until the statute of limitations of the Tax Administration's right to check the original return..."

Because in par. 11 paragraph 1 of article 72 of law 4174/2013, as the original article 66 was renumbered to article 72 with article 8 of law 4337/2015 (Government Gazette A 129/17.10.2015), it is defined: "11 . Provisions on limitation of the right of the State to notify control sheets and acts of determination of tax, fees, "fines" contributions, previous to article 36 of the Tax Procedure Code, continue to apply for the years, periods, cases and tax obligations in which concern."

Because, according to the provisions of article 84 par. 1 of Law 2238/1994: "1. The notification of a control sheet, according to the provisions of article 69, cannot be made after the lapse of five years from the end of the year in which the deadline for serving the declaration expires. The State's right to levy the tax is time-barred after five years have passed."

Because in par. 8 of POL.1172/2017 it is stated that, for the amending income tax declarations submitted from 1.1.2014 onwards, regardless of whether they concern years before or after the entry into force of the K.F.D., the mentioned provisions apply in paragraph 3 of the POL. 1174/2014 circular regarding the deadline for submitting them, i.e. five years from the end of the year in which the deadline for submitting a statement expires.

Because, in accordance with the provisions of Article 42 of Law 4174/2013, as amended and in force with paragraph 3 of Article 2 of Law 4281/2014 and Article 30 of Law 4701/2020: "1. If the taxpayer is entitled to a tax refund, the Tax Administration, after offsetting the tax owed with the amount to be refunded, proceeds with the refund of any resulting difference 4.The claim for a refund of tax, which was paid unduly, is time-barred at the time when the right of the Tax Administration to issue a tax assessment act expires, in accordance with paragraphs 1 and 2 of article 36 of the Code regarding the corresponding tax liability from which the claim for refund.".

Because, according to the principles that govern the amendment of tax returns, as they were formed by the standing on this subject, jurisprudence of the Second Department of the Council of State, the taxpayer is bound in principle by his tax return, but he can revoke in whole or in part if, due to a legal or factual error, other than the one caused by the assessment of things, and due to a mistake or other reasonable cause, non-existent taxable material or exceeding the actual or non-taxable material was included in the declaration.The taxpayer who withdraws the declaration of the taxpayer must prove his error (see STE 2941/2000, STE 1942/1995, STE 1649/1993, STE 2205/1989, STE 1388/1989, 3777/1987, 1314/1985, 629 /1985, 1075/1978, 3599/1976, 2963/1976, etc.). The proof that the error is due to one of these causes shall be borne by the taxpayer only when the establishment of the cause invoked requires an investigation of facts, not therefore also, in the case of an error of law, which does not need proof from this point of view ( see StE 1942/1995, 1649/1993, 2805/1989, 1388/1989, 3777/1987, 1314/1985 etc.), i.e. it is not examined whether the provision, which allegedly caused the alleged error, is or not unclear (StE 1314/1985).

Besides, the principle of legality constitutes the constitutional background of the jurisprudentially developed institution of the amendment of a tax return due to an error before its legislative standardization. This is because, in the field of tax law, neither the will of the tax authority nor the will of the taxpayer acts constructively in the direction of the exemption or exception or establishment of a tax liability, since, in any case,legality is sought to be ensured, i.e. the alignment of the content of the tax declaration with the provisions of the tax law, - means that, in cases where the declared taxable material is non-existent or exceeds the actual one or is not subject to tax, the possibility of overturning the binding nature of the tax declaration, in the part where the corresponding tax liability is missing.

Because, in this case, the following emerges from the data in the file: In 2014, the applicant received retroactive payments of 4,885.99 euros going back to the year 2013. For this amount, the applicant submitted an amended income tax return on 18.12.2015 . However, by mistake, the said amending statement was submitted for the financial year 2013 and not for the financial year 2014, which is correct. Subsequently, the applicant re-submitted the 2014 amending declaration correctly on 19.10.2020.And, the two amending returns were cleared and an amount of tax was incurred against the appellant. The result of the above is that the applicant is charged with tax for the same amount twice, once, due to the (erroneous) amending declaration for the financial year 2013 and secondly, due to the (correct) amending declaration for the financial year 2014.

Because all the above facts are proven by the applicant, (fig. 4,5,7,8) without being disputed by the D.O.Y.
Because the claim of the applicant is well-founded, it is accepted.

Following the above,
we decide
to accept it with no. prot ./20.1.2021 single-page appeal with VAT number and its amendment with no. ed./2017 (statement no.) 1st amending statement for the year 2013 (submission date 18.12.2015).

We instruct the competent body to notify the obligor of this decision through the legal procedure.
Note: Against this decision it is allowed to appeal before the competent Administrative Courts within thirty (30) days from its notification.

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