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Contrary to good administration, the tax authority's insistence on following the formula – The no. A838/2023 Decision of the Administrative Court of Appeal of Thessaloniki

The Administrative Court of Appeal of Thessaloniki ruled with the no. A838/2023 Decision of, in a case successfully handled by our office, that it is against the principles of good administration, justified trust and proportionality that the tax authority's insistence on following the formula, in the case of the type of correction of an incorrect real estate tax calculation, when the disputed tax was undoubtedly derived from an incorrect area and even multiple of the actual one.

The entire decision is given.

Decision number: A 838/2023

THE

SINGLE-MEMBER ADMINISTRATIVE APPEAL COURT OF THESSALONIKI

SECTION E'

(TAX-CUSTOMS)

He met publicly in his audience, on January 11, 2023, with judge Anastasios Hasiakos, Appellant D.D., and secretary ……………………., court clerk, to hear the appeal with filing date 14-10 -2021 (no. registered in the Court EF 1662/18-10-2021),

of ………………………… of ………………., resident of Thessaloniki (street ………………, no. …………..), who appeared through the proxy of lawyer Thomas Kalokiris, against the Greek State, legally represented, in this case, by the Head of the Dispute Resolution Division of the Independent Public Revenue Authority (A.A.D.E.), who did not appear, and against the 2474/2021 final decision of the Single Member Administrative Court of First Instance of Thessaloniki.

The Court studied the case file and reasoned in accordance with the law.

1. Because, with the considered appeal, for which the legal fee was paid (refer to the e-Fee with code number 432585275951 1213 0007), the disappearance of the 2474/2021 final decision of the Single-Member Administrative Court of First Instance of Thessaloniki, with which was rejected by no. cat. ΠΡ3336/28-9-2018 appeal of the appellant against the 1318/2-7-2018 decision of the Head of the Dispute Resolution Division (D.ED.D.) of the Independent Public Revenue Authority (A.A.D.E.). With this last decision, the appellant's 6905/22-3-2018 unequivocal appeal against the 4870/14-2-2018 negative response of the Head of the D.O.Y. was rejected. A' Thessaloniki, on the 22997/9-11-2017 request for the recalculation of the extraordinary special real estate fee (E.E.T.A.), year 2013, for his property in Kalochori of the municipal unit of Hedoros of the Municipality of Delta Thessaloniki, with based on the area of its actually electrified roofed surface of 40 sq.m., instead of the incorrect 2,000 sq.m. with which this was calculated.

2. Since the case was legally discussed, despite the absence of the Greek State, since it was summoned legally and on time to appear at the above-mentioned hearing (see the 12-7-2022 proof of service of the relevant summons of the bailiff Dimitrios Tsanidis ).

3. Because, in subparagraph A7 of the first article of Law 4152/2013 (Government Gazette A΄107) it is stipulated that: "1. For imperative reasons of national interest consisting in the achievement of the fiscal objectives of the Medium-term Fiscal Strategy Framework, as approved by the first article of Law 4093/2012 and updated by Law 4127/2013, for the year 2013, an extraordinary special fee is imposed in favor of the State in the electrified, at any time during the period from May 1, 2013 to December 31, 2013, built-up real estate surfaces in accordance with the provisions of this subsection, which will be called the extraordinary special real estate fee (E.E.T.A. .)….5. To calculate the E.E.T.A. the area of the built surface, the height of the zone price and the age of the property are taken into account, as they are written in the account of D.E.H. or of alternative electricity suppliers and based on which the real estate tax (T.A.P.) of paragraph 1 of article 24 of Law 2130/1993 (Α΄62) is calculated on May 1, 2013.... In order to correct any errors in the data on the surface area, the zone price and the age of the electrified property, as defined in this paragraph, the interested citizens come to the relevant municipality by May 15, 2013, submitting a relevant request, otherwise it is considered that they accept the data as accurate. The municipalities of the whole country check whether the statements sent to the D.E.D.D.H.E. the square meters of the property are included and if the correct zone values are recorded, as they apply to the calculation of the objective value of real estate and, in the event of an error, they correct them by sending the new data to D.E.D.D.H. .E. until May 31, 2013. In the same statements, they also include the corrections made to the data of the properties, following the applications of the interested citizens. If it is established, in any way, that, through the fault of the municipalities, they have been sent to the D.E.D.D.H.E. inaccurately the data, which are taken into account for the calculation of E.E.T.A., resulting in the imposition of a larger amount of E.E.T.A. from what is actually owed, a new liquidation of the E.E.T.A. is carried out.

4. Because, in the present case, the following emerges from the evidence of the case file: The appellant is the owner of the 158 parcel of land of the Kalochori farm, which is located in the municipal section of Echedoro of the Municipality of Delta Thessaloniki, outside the approved town plan and within the General Town Planning Plan ( regarding the 17/2.1.2013 certificate of the Mayor of Delta). Surface section 2,000 sq.m. of this plot of land was electrified as uncovered (electricity supply number 20740656), in order to be used as a business premises (car park) and a responsible statement of property details was submitted by the owner for the calculation of municipal tax, municipal fees and real estate tax . The appellant had leased this property to the general partnership under the name "………………..". For the above property, an extraordinary special fee for electrified built-up surfaces (E.E.T.H.D.E.) was finally confirmed at the expense of the appellant-owner, for the years 2011 and 2012, amounting to 5,099.85 and 5,100 euros, respectively , as well as the legal extraordinary real estate tax (E.E.T.A.), year 2013, amounting to 6,644.54 euros, which were calculated on a total area of 2,000 sq.m. The appellant and the lessee company, with their 1194/15.1.2013 application to the D.O.Y. A' Thessaloniki, requested a new liquidation of the due E.ET.H.E., on the grounds that this fee was incorrectly determined on the unstructured surface of the property (pen). On 17.5.2013, the aforementioned D.O.Y. autopsy on the above property, from which it emerged that within the pen there was a building with an area of 40 sq.m. However, with the 17919 and 17918/12.6.201, respectively, decisions of the above D.O.Y., the appellant's application was rejected. The latter's appeals against these rejection decisions, with which he argued that the due E.ET.H.D.E. had to be calculated only on the built surface of 40 sq.m., which exists inside the pen, as it emerged from the autopsy performed, and not on the uncovered surface of 2,000 sq.m., they were accepted, with 3796 and 3797/ 2017 decisions, respectively, of the Single-Member Administrative Court of First Instance of Thessaloniki, which canceled the above decisions of the D.O.Y. and the new liquidation of the due E.ET.H.D.E. was ordered. based on a built-up area of 40 sq.m., on the above property of the appellant. Besides, the appellant, with his 22997/9-11-2017 application to the D.O.Y. A' Thessaloniki, requested the recalculation of the litigant EETA, year 2013, only on the built-up area of 40 sq.m., which exists within the pen, as it emerged from the performed autopsy, instead of the uncovered area surface area of 2,000 sq.m., on which it was calculated. This application was rejected, with the 4870/14-2-2018 negative response of the Head of the D.O.Y. A' Thessaloniki, on the grounds that, in accordance with the provisions of article 1 of Law 4152/2013 and POL 1080/2014, to correct any errors in the details of the area, the zone price and the age of the electrified property, it should a relevant request had been submitted by 5-15-2013 to the competent Municipality, otherwise it is assumed that the information is considered accurate. Against this decision, the appellant filed the 6905/22-03-2018 interlocutory appeal, claiming that the above E.E.T.A. was incorrectly calculated. for the property in question, as, according to subparagraph A7 of article 1 of Law 4152/2013, this is imposed on the built-up electrified surfaces of properties and not on uncovered areas and plots. This appeal was rejected, with the 1318/2-7-2018 decision of the Head of the Dispute Resolution Department of A.A.D.E., with the same reasoning as above.

5. Because the appellant, with his ΠΡ3336/28-9-2018 appeal against this last rejection decision, reinstated his above claims, adding that, when he found the error in the calculation of the electrified built-up area of his property, he addressed to branch of PPC, he was referred to the Municipality of Delta, but where the officials refused to receive the corrective statement he submitted and referred him to the D.O.Y. 1 of Thessaloniki, where he submitted the rejected, according to the above, application for correction of the built surface. He added that in view of the above, his right to seek, after 5-31-2013, the recalculation of the due ETTA, by correcting the area of his property, was unlawfully excluded, the exclusion he blatantly violates the principles of proportionality, his justified trust, as well as good administration.

6. Because, with the decision of the single-member Administrative Court of First Instance of Thessaloniki issued on the above-mentioned appeal 2474/2021, the following were decided: First of all, the above decisions 3796 and 3797/2017 of the Single-member Administrative Court of First Instance of Thessaloniki do not constitute res judicata case, as they relate to a different charge, which was imposed under different legislation. Furthermore, contrary to the provisions of Law 4021/2011 on the E.ET.H.D.E., the provision of article 1, par. A.7 subpar. 5 of Law 4152/2013 on the E.E.T.A., expressly mentions the procedure for correcting any errors in the details of the area, the zone price and the age of the electrified property, which is carried out by submitting an application to the competent Municipality until May 15, 2013, otherwise it is assumed that the debtor accepts the information as accurate. However, the appellant, although already on 1-15-2013 he had submitted a relevant request to the D.O.Y. A' Thessaloniki for the correction of the area of his property, however, he did not follow the above-mentioned correction procedure prescribed by law, while he did not prove his claim about the refusal of the employees of the Municipality of Delta to receive his relevant application. Thus, it was judged that legally, with the above 4870/14-2-2018 negative answer of the Head of the D.O.Y. 1 of Thessaloniki, the appeal 22997/09-11-2017 request of the appellant for the recalculation of the E.E.T.A. was rejected. year 2013, for the above property and the appeal was dismissed. Already, with the decided appeal, the above reasons for the appeal are repeated and the disappearance of the appealed decision and the acceptance of this appeal are requested.

7. Since, with these data, the Court judges the following: Since, as established by the above autopsy of the competent D.O.Y. A' Thessaloniki and it is not contested by it, the area of the electrified built surface of the above property of the appellant, on which the E.E.T.H.D.E. is calculated. but also the litigant E.E.T.A., is 40 sq.m. and not 2,000 sq.m. (which is the electrified unstructured surface thereof), the tax authority's insistence on following the formula for the correction of the above area by submitting a relevant application by the appellant by the 15 -5-2013 to the competent Municipality and the calculation of the litigant E.E.T.A. based on an unquestionably incorrect area and indeed many times the real one. Therefore, the aforementioned 22997/09-11-2017 application of the appellant for the recalculation of the E.E.T.A. was unlawfully rejected. of 2013, and the appealed decision that ruled to the contrary was wrong, as is validly argued in the pending appeal.

8. Because, in accordance with the above, this appeal must be accepted and the appealed decision must disappear, furthermore the above appeal must be tried and accepted and the 1318/2-7-2018 decision of the Head of Dispute Resolution Directorate of A.A.D.E. and the incorporated in this 4870/14-2-2018 negative response of the Head of D.O.Y. A' Thessaloniki and, furthermore, to order the recalculation and the new liquidation of the litigious E.E.T.A. of the above property of the appellant, year 2013, based on an electrified built-up area of 40 sq.m. Finally, the appellant-appellant must be awarded the fees paid for both the appeal and the appeal (Article 277 par. 9 of the C.D.D.) but, based on an assessment of the circumstances, the respondent-defendant of the appeal must be exempted from the legal costs of the appellant-appellant of both levels of jurisdiction (article 275 par. 1 sub. fifth of the Civil Code).

 BECAUSE OF THIS

He accepts the appeal.

Eliminates decision 2474/2021 of the Single Member Administrative Court of First Instance of Thessaloniki.

Tried the above appeal and

She accepts.

Annuls the 1318/2-7-2018 decision of the Head of the Dispute Resolution Division of A.A.D.E. and the incorporated in this 4870/14-2-2018 negative answer of the Head of D.O.Y. 1st of Thessaloniki.

It orders the recalculation and the new liquidation of the litigant E.E.T.A. of the above property of the appellant, year 2013, based on an electrified built surface area of 40 sq.m.

It orders the return to the appellant-appellant of the fees paid for both the appeal and the appeal.

The appeal exempts the respondent-defendant from the court costs of the appellant-appellant of both levels of jurisdiction.

………………..

Thomas Steph. Summer

MDE lawyer

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