Can Europe Make It?

Kafka in Greece: a struggle against tax bureaucracy

Faced with Greece's near-impossible loan repayments, the country's Tax Authority is using highly dubious methods to create the illusion of a budget surplus - and it is ordinary Greeks who are paying the price.

Themistoklis Sofos
23 November 2017

Alexia Angelopoulou/DPA/PA Images. All rights reserved.Since Greece collapsed under the weight of unsustainable debts in 2010, the country has gradually sunk into a social, moral and legal abyss of a depth never before seen in the country's history, even during its darkest days.

Social cohesion is under threat as armed gangs commit contract killings, “anarchists” and other civil disobedience groups destroy buildings by throwing petrol bombs, attack doctors, judges and police stations and render the daily life of citizens ever more difficult and depressing. Pensioners have seen the pensions they saved for throughout their careers cut in half. The health service has failed with shortages of staff and medicines as well as a general lack of funds. Departments of universities are under siege by a minority of young with antisocial and destructive personalities, who act with impunity inside the “Academic Asylum” of Universities.

In Greece “Academic Freedom” is interpreted today not as the freedom to speak freely but the freedom to act freely and even illegally, without the police being allowed to intervene, as universities are forced to grant asylum for any activity undertaken within their campuses, however criminal. The young, educated middle class is leaving Greece in droves to live and work in other EU countries and further afield, so that Greece is losing the cream of its youth, its only hope for a better future.

The country is becoming a place of increasing lawlessness and cruelty, highlighted by the ever-present graffiti destroying the appearance and cleanliness of almost every building in its cities. If only Delacroix could paint a picture of Greece now, almost 200 years after his Massacre at Chios promoted her liberation from the Ottoman yoke!

Although a bankrupt nation, Greece has no plan or even hope of encouraging foreign investment and creating new jobs. The government is trying to manufacture the huge surpluses expected of Greece each year by her creditors, mainly through taxation. The ‘Independent Tax Authority’, following instructions from the Ministry of Finance, has invented ingenious ways of extracting yet more money from the country’s dwindling population, whose capacity to pay is fast diminishing. As a result many people are losing their houses to repossession, and their money, due to enforcement measures.

The means employed by the Independent Tax Authority are indeed so ‘creative’ that those taking them to the tax courts over wrongful demands win 85% of the time. The range of people winning in court varies from very complicated cases such as shareholders of companies being considered by the tax authorities as responsible, along with the CEO, when the latter has not paid company taxes, to very simple ones involving tens of thousands of individuals having being accused of tax evasion when there was none.

This might raise the eyebrows of our fellow Europeans, but forcing people to apply for justice in the tax courts is highly beneficial both to the tax officials and to the government. This is because if the citizen wants to fight their case in court they have to pay up-front half the sum they are told that they owe although often these tax demands are not only completely unsubstantiated, but ludicrous. This money temporarily appears as government income from tax and the tax officials are rewarded. Kafka’s Trial comes to mind.

The typical Odyssey of an honest Greek taxpayer might run as follows: having been falsely accused of owing tax, he or she attempts first to find justice outside the courts, in a specially devised Directorate of the Independent Tax Authority, where taxpayers can appeal if they feel they have been wrongly accused of not paying their tax. It is called the ‘Directorate for the Settlement of Disputes’, to which the taxpayer provides all the necessary evidence for a second time.

This Directorate must respond within 120 days, but often its members allow this period to elapse and then reject the appeal on the grounds that they were unable to find the time to read the documentation. A special term has been created to explain this eventuality: “Silent Rejection”. Entangled in this Kafka-esque web, the taxpayer is then forced go to the special tax court, with the concomitant deposit of 50% up-front of the sum deemed to be owing, or else, if he cannot afford to do that, pay the entire amount supposedly owing, in instalments.

If a citizen wants to fight their case in court they have to pay up-front half the sum they are told that they owe... This money temporarily appears as government income from tax and the tax officials are rewarded.

The honest taxpayer who goes to court usually obtains justice and eventually gets back his or her deposit. Interestingly, there are also benefits for the tax officials who falsely accuse them, as they get promoted and receive bonuses; for the government, which shows an accounting surplus by mendaciously totting up all the 50% deposits that they receive as if they were genuine income, and for the lawyers, who collect their fees.

Although this scheme must look to its architects as a win-win situation - one might be forgiven for thinking it a scam. But that is not all. So far, there has only been inconvenience and expense to the taxpayer. But if he or she is accused of owing more than €150,000 in tax, there is a criminal prosecution as well, over and above the tax one.

For good measure, and again without supporting evidence, the hapless taxpayer is often also accused of criminal tax evasion and money-laundering, before even the administrative court judges the taxpayer's claim against the Greek State about the legality of the tax demand, and before the judges' reasoning why the taxpayer has been falsely accused of owing tax.

A complicated case of tax authority “creativity”, which I won for my client recently in the tax courts, was one where the tax authorities accused my client, a major shareholder of a company, as responsible for the tax evasion of the company, on the grounds that he might have been prompting the CEO not to pay taxes, although the aforementioned shareholder had no authority from the Board of Directors to act in any capacity in the company.

Most cases however are straightforward “creativity” on the part of the tax authorities and when they reach the courts an overwhelming majority of the taxpayers win their cases. Those few who for various reasons fail to find justice in the Greek courts find it eventually at the European Court level.       

The latest targets of the Independent Tax Authority of Greece are wealthy Greeks who are permanent residents abroad and who pay tax on their world-wide income in their country of residence. The leaked lists of Swiss bank accounts whetted the appetite of the Greek tax authorities for yet more possible sources of revenue.

There are indeed some Greeks, resident in Greece, who have opened bank accounts abroad, sometimes in Switzerland, to send undeclared income illegally out of the country. They should be investigated and if found guilty pay their taxes and fines. But the large contingent of wealthy Greeks who are tax residents of other countries cannot have their foreign assets investigated by the Greek tax authorities because it is illegal under both European and international law.

The illegality is compounded under Greek law, as the accusations are levied on the basis of questionable documents of dubious accuracy which have not been properly investigated and are therefore inadmissible as evidence in court. In addition, the Serious Fraud Office of Greece, a separate and much respected department, has in many cases already investigated and cleared members of this contingent of Greeks based abroad. This fact alone should have halted any prosecutions of them by the tax authorities, but it has not. On the contrary, the latter have ignored the SFO’s reports and instead continue harassing large numbers of Greeks living abroad, using the methods described above.

Even when the relevant tax authorities of their countries of residence have issued them with certificates of tax residency, and their respective Greek Embassies have verified their status, the Greek tax office pursues their luckless victims unabated. A senior official at HMRC (the UK’s tax authority), when told that the certificate of tax residency given to a very well known Greek member of the British establishment, who had been tax resident in the UK for over 35 years, had been rejected by the Greek tax authorities, wrote a strong letter to his Greek counterparts demanding an explanation. Needless to say his letter has been totally ignored.

It makes no difference if the victims are married, often to non-Greeks, and living with their families in homes that they own abroad, or if they provide ample documentation to demonstrate that their private and social life, their work and all their activities are based not in Greece, but abroad. I am personally dealing with cases where the tax authorities falsely represent such people as single, unemployed, and living permanently in a small property in Greece, which a number of expatriate Greeks own in order to spend some time there during the summer – and this despite a confirmation by the electricity company that the Greek property is rarely used at all.

A paradoxical development is that, while Greek nationals who are tax resident in Greece and have undeclared bank accounts in Switzerland or elsewhere illegally, are given an opportunity by the Greek tax authorities to come clean and merely pay a fine for their tax evasion, honest Greek nationals who are tax resident abroad, with every right to have bank accounts abroad and who pay tax on their worldwide income to the tax authorities of their countries of residence, are dragged through the Greek courts before they eventually find justice.

It is as if the Greek Independent Tax Authority wants to give out the following message: if you are guilty of tax fraud you get away with a fine, but if you are innocent you are considered guilty until you can prove your innocence in court, and must first pay 50% of the sum that the tax office claims that you owe in tax.

I am seriously worried at the damage these unjust and downright illegal actions are causing to Greece’s reputation as a democracy

Why do the double-standards favouring the guilty? There can only be one answer: the tax authorities need to fill the state coffers in any way that they can and are prepared to achieve this by granting the guilty the opportunity to pay a tax fine, so that they will come forward, while the innocent who are tax residents abroad are compelled to go to court and thus shell out the 50% down-payments they are required by law to deposit in order to seek justice.

As a lawyer myself for over twenty years at the Greek bar, I am confident that the Greeks living and tax residents abroad will eventually find justice in the Greek courts or if need be at the International Court of Justice; but I am seriously worried at the damage these unjust and downright illegal actions are causing to Greece’s reputation as a democracy and to any hopes that she might attract investment and support from Greeks living outside her borders or indeed anyone else.

What is needed urgently is for Greece to pass new legislation that would make the Independent Tax Authority accountable to Parliament, rather than merely reporting to it as now, and make sure that it operates according to the best international practices. Before having to be referred to the relevant courts, tax disputes should be heard (and not rejected without having been considered) by independent tribunals and not by the same authority which imposes the tax. 

In the last couple of years my colleagues and I have observed a steady and unprecedented deterioration of law and order in our country. Departments, such as the Independent Tax Authority, individual groups of unruly Greek youths, as well as criminals of every stripe, trample daily on the rights and freedoms of ordinary people with well-nigh impunity. My colleagues in the law, including judges and the police, are exasperated by this state of affairs.

The widespread disregard for the law and the unprecedented attacks on lawyers, the judiciary and the police, who have dedicated their lives to upholding the rule of law, are clear indications of a growing disrespect for the system of democracy itself.

Because the hallmark of a democracy is not only the ballot box, or the referendum, and certainly not the number of “clients” employed by each party in the civil service, but first and foremost the extent to which the state sector, both in the political establishment and in the civil service, recognises that the law is above us all, should be upheld fairly and should be accessible to everyone equally, without discrimination. 

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