Τhe tax administration’s Dispute Resolution Committee follows the judgments of the Greek supreme administrative court regarding the exemption of loan agreements from stamp duty
Following its recent decision no. 750/2022, the tax administration’s Dispute Resolution Committee (“DRC”) has confirmed once again its position that the judgments of the Council of the State (“CoS”) regarding the exemption of loan agreements from stamp duty (judgments no. 2163/2020 and 2323/2020) are applicable to similar cases; hence, the DRC ruled in favor of a company which had filed a stamp duty return “under reservation” asking for refund of the respective amounts plus interest.
According to the above-mentioned CoS judgments, loan agreements fall under the scope of VAT as zero-rated transactions (as per art. 22, par. 1(xxii) of the Greek VAT Code) if (i) the lender is a VATable person (business enterprise engaging in an economic activity in a permanent manner), and (ii) the loan is made for consideration (interest). On this basis, the CoS concluded that stamp duty on the said agreements has been abolished since 01.01.1987, i.e. when the VAT law came into force.
The DRC has already in previous decisions ruled in favor of companies which had challenged (based on the above CoS judgements) the imposition of stamp duty, in cases where the respective stamp duty return had been filed either “under reservation” (DRC 317/2022 dealing with a cash pooling arrangement) or without reservation (DRC 182-5/2022) and the taxpayer was asking for refund of the respective amount paid, as well as in cases where stamp duty had been assessed upon tax audit (DRC 4684/2021).
Despite the above developments, so far the tax administration has not issued guidelines instructing the tax authorities to refrain from the assessment and collection of stamp duty in similar cases.
Pending the issuance of administrative guidelines, companies wishing to challenge the imposition of stamp duty in similar cases, may file a stamp duty return “under reservation”, whereby they will pay the stamp duty declared and ask for its refund; in case of negative (or no) reply from the tax authorities, they will appeal before the DRC and ask for refund of the respective amounts. Another (more aggressive) alternative would be to not file a stamp duty return at all and in case the respective stamp duty is assessed upon a future tax audit, to challenge the assessment before the DRC. This option entails the risk that, in the case of defeat, besides the stamp duty, the taxpayer would also suffer the penalty and interest assessed.
With respect to stamp duty payments made previously and pertaining to unaudited years for which the statutory limitation period has not lapsed, the taxpayer could file amending stamp duty returns and ask for refund of the respective amounts. In case of negative (or no) reply from the tax authorities, the taxpayer may appeal before the DRC.