Η αλλαγή φορολογικής κατοικίας και οι αποφάσεις του ΣτΕ
Το άρθρο 4 του Φορολογικού Νόμου (Ν. 4172/2013) καθορίζει τα κριτήρια, βάσει των οποίων ένα φυσικό πρόσωπο θεωρείται κάτοικος Ελλάδας.
• Η μόνιμη ή κύρια κατοικία
• Η συνήθης διαμονή και
• Το κέντρο των προσωπικών, οικονομικών και κοινωνικών συμφερόντων
Το πρόσθετο κριτήριο
Το ζήτημα της απόδειξης
Η εγκύκλιος 1201/2017
Οι αποφάσεις του ΣτΕ
Το άρθρο δημοσιεύτηκε στο capital.gr
Article 4 of the Tax Law (Law 4172/2013) defines the criteria by which an individual is considered a tax resident of Greece. These criteria include:
- Permanent or primary residence.
- Regular residence.
- The center of personal, financial, and social interests.
An additional criterion is established in this article, relating to the physical presence for one hundred and eighty-three days during any twelve-month period, following international practice. This criterion does not require continuous presence in Greece, and gaps are considered in the calculation of the one hundred and eighty-three days.
Therefore, if an individual does not meet the above criteria, they may not be considered a tax resident of Greece.
The Issue of Proof
The matter of proving the tax residence of an individual has been a topic of concern and has led to court decisions, which are often unfavorable to the taxpayer who is required to demonstrate a change in tax residence.
According to Circular POL 1201/2017, to prove that an individual is not a tax resident of Greece, they must provide a certificate of tax residence issued by the competent tax authority of the state where they declare tax residence. This certificate should confirm that they are a tax resident of that state, and it should include other information that shows the change in the individual’s residence and their intention to permanently and continuously transfer the center of vital interests and relationships outside of Greece. Such documentation includes proof of employment, the start of a professional activity, registration in a foreign population registry, and more.
Supreme Administrative Court Decisions
In Decision 2257/2022 of the Council of State, an application to transfer tax residence from Greece to Romania was rejected because, according to the court’s judgment, there was no permanent and continuous presence of the individual abroad.
The presentation of the certificate of tax residence, based on which the applicant had the right to reside in Romania for a specific period, was not enough to demonstrate the change in the applicant’s tax residence. Other pieces of evidence presented (e.g., electricity bills, car registration in the name of the applicant) were not directly related to the establishment of the individual’s presence in that foreign country.
A similar judgment was made in Decision 1865/2022 of the Council of State, which considered that the evidence provided did not establish that the taxpayer had genuinely transferred the center of vital interests from Greece to Bulgaria.
From the above decisions of the Supreme Administrative Court, it is clear that presenting the certificate of tax residence alone is insufficient to prove the change in tax residence. Taxpayers need to have additional evidence to establish the fundamental requirement of tax residence, which is the center of personal, financial, and social interests in another country.