What are the territoriality rules?
The Greek income tax system taxes Greek SAs on their worldwide income.
They may, however, offset the tax that they actually paid to a foreign jurisdiction, but not exceeding the amount payable in Greece. Foreign legal entities are taxed on their income deriving from a source in Greece (actual or deemed). Foreign legal entities are also taxed on their income from their “permanent establishment” in Greece. Article 100 of the Greek Code of Income Taxation (“CIT’) has a list of cases in which a foreign entity is considered to have a permanent establishment in Greece, which is a factual issue. In case the country of origin of the foreign entity has entered into a Bilateral Treaty for the Avoidance of Double Taxation with Greece, the provisions of the Bilateral Treaty regarding permanent establishment will prevail.
What is the applicable corporate tax rate?
The tax rate applicable to the profits of the Greek S.A. or a foreign branch of a societe anonyme is 29% for the financial year 2016 onwards . In case of income from real estate property a supplementary tax of 3% is imposed on the gross income, which cannot exceed the corporate tax itself. Special and extraordinary taxes are imposed in cases of economic crisis.
Is there an advance payment requirement?
Greek SAs shall pay advance payments for the following year’s income tax at 100% of the current year’s income tax liability for corporate income tax return and at 100% especially in case of Greek banks or Branches of Foreign Banks established in Greece. In case of newly established SAs, the prepayment is reduced to 50% respectively, for the first three years starting from the entity’s registration in the tax authorities (Art. 111 CIT). SAs being transformed or merged pursuant to the provisions of L.
1297/1972, L. 2166/1993, L. 2190/1920 or any other specific laws shall not be subject to the above payment.
How is taxable income calculated? Which expenses are deductible?
Greek SAs keep accounting books of Category C’ of the Greek Code of Books and Data. In general, gross income is reduced by expenses properly documented and recorded to arrive to the net taxable income. The annual gross income is reduced by the depreciation of fixed assets and by the expenses incurred relating to their activity (“productive expenses”). A tax audit may not disallow an expense as unnecessary or unreasonable but only as non-productive. Despite this general rule, tax-deductible expenses are defined in a long list included in the Art. 31 of Greek Code of Income Taxation on the basis of prior rulings and court cases.
Expenses may also be disallowed on grounds of formality without recourse to the substance on the basis of the rules included in the Code of Books and Records. The taxable income is calculated mainly by deduction from net profits of carried-forward losses, tax-free reserves, tax-free income or income taxed in a special way to the extent allowed. Tax loss from a source abroad is offset only against profits from a source abroad. Permanent establishment of foreign companies may deduct part of their head office administrative expenses and in any case up to 5% of the same type of expenses of the permanent establishment itself.
Payments to companies (or their representatives) established in a preferential tax regime or in a non-cooperative state are by law non-tax deductible, unless they are proven real and in the normal course of business and do not have as a result the transfer of profits with the purpose of tax evasion or avoidance.
How are tax losses treated?
Tax recognized losses may be carried forward for five years provided that the books of the company are judged accurate and the losses were declared not later than the end of the financial year in which they were incurred. The carry back of the losses is not permitted. Losses from foreign source shall be offset only against profits from source abroad.
Which are the main filing and payment requirements?
SAs are obliged to file their corporate tax returns by the 10th day of the fifth month following the end of their accounting year. The corporate income tax and the advance payment are payable in 8 monthly installments. The first is due simultaneously with the submission of the corporate income tax return; the remaining 7 installments are payable not later than the last working date of the month following the month of submission. In case of one-off payment a reduction of 1.5% on the tax due is granted (Art. 110 CIT). Other filings: Periodical and annual VAT returns/Tax withholding returns/A list of the intra-group transactions shall be filed within 4.5 months after the end of the fiscal year according to transfer pricing rules/A list with the investment expenses under the provisions of the investments laws shall be filed/A declaration regarding the tax deduction for new productive investments in Greece according to investment Laws (tax exempt reserves still to be formed etc)/ On a trimester basis a list of the agreements (of the previous three months) between the company and other enterpreneurs/ A list with the clients or the suppliers of the company1/ A list with the agreed discounts to the buyer of the goods or the client receiving the services shall be notified to the head officer of the tax office 4 months earlier/ A list with the written-off bad debts/ A list of credit invoices/ The balance shall be filed to the tax office within 9 months after the closing fiscal year/ Enterprises employing more than 50 employees are obliged to file monthly periodical payroll tax returns.
How are Capital Gains taxed?
There is no general capital gains tax legislation in Greece. Any gains of enterprises are normally included in their taxable income, although conceptually they may not constitute “revenue”. For the sale (or contribution to cover capital increase) of shares of a Greek S.A. non listed, a 5% transfer tax is payable prior to the transaction on the higher amount between the contractual sale price and the deemed sale price of the shares. A 20% tax applies on gains from the sale of a business or its good will payable prior to the transaction. The same tax applies to gains from the disposal of business rights, including industrial property. In the two cases above the tax paid constitutes an advance payment since the tax obligation is not exhausted but the profits are accounted in the annual taxable profits. The profits of SAs from the sale of shares listed in the Greek stock exchange, acquired from the 1st January 2012 onwards, shall be taxed based on the general income tax provisions. The sale of listed shares acquired up to
31.12.2011 is still subject to a transaction tax at a rate of 2‰. The revaluation of real estate (land and buildings) owned by companies is mandatory every four years (L. 2065/1992). The overvalue, at the discretion of the enterprise, is offset against any carried-forward losses; The residual overvalue is taxed at the rate of 2% (in case of
land) or 8% (in case of buildings) and it is capitalized, so that new shares are distributed without any charge to the shareholders. There is no obligation for capitalization according to L. 3756/2009 for companies applying IFRS. The payment of this tax exhausts any tax liability.
Which are the main tax withholdings?
SAs shall withhold income tax from their employees’ salaries on the basis of their projected annual income and the relevant applicable scale. Other cases of tax withholdings exist such as:
iii. Royalties; The compensation or royalties paid to foreign enterprises or organizations with no permanent establishment in Greece are subject to a withholding tax of 25%, unless otherwise provided in an applicable Double Treaty.
Are there thin capitalization rules?
In accordance with Greek thin capitalization provisions (Art. 31 par. 1 case d’ of CIT) accrued interests paid or credited to an affiliated company are not deductible to the extent the total amount of loans from such companies exceed by average and during the fiscal year, three times the equity of the borrower (debt/equity ratio 3:1). As affiliated companies are those under material, direct or indirect, management or economic dependence, due to participation of the one in the capital or the management of the other or due to participation of the same persons in the capital or management of both. Such non deductible interests include the interests of bond loans payable to affiliated companies.
Bond loans issued to or affiliated companies or guaranteed by affiliated companies are also added to the debt.
Are there any transfer pricing rules?
Greece’s transfer pricing rules adhere to the OECD Guidelines and apply the arm’s length standard. It is regulated by both a) the Ministry of Development (Art. 26 L. 3728/2008) and b) the Ministry of Finance (Art.
39, 39A CIT); a consolidation of the two competences (Market Police and Tax legislation) has been announced. Several documentation requirements are provided in both legislations (filing a TP report, maintaining of the documentation etc) the non compliance of which may result to severe penalties. However, the ministerial decision required for the establishment of the Ministry of Finance specific requirements has not been issued yet.
Are there any special provisions for group tax relief?
No, tax consolidation is not possible under Greek Tax Law. The company cannot transfer losses to another company of the same group.
Are there any Taxes upon incorporation or capital increase?
Law 1676/1986 introduced a special tax of 1% on capital concentration (establishment, merger of a company, capital increase). A duty of 0.1 per cent has been added in favor of the Hellenic Competition Committee.
Has Greece entered into Bilateral Treaties for the Avoidance of Double Taxation?
Greece is a signatory party to 55 income tax treaties (the bilateral agreement with Bosnia and Herzegovina (ratified by L. 3795/2009) has not been brought into force yet). According to the Greek Constitution, international treaties, such as treaties for the avoidance of double taxation, prevail over any other domestic legislation. Greece has also ratified treaties for the taxation of profits of shipping enterprises and airlines with several countries. Some of them overlap with the applicable treaty for the avoidance of double taxation.
Which are the main taxes on owning real estate?
A flat tax of 0.6% is levied on the deemed value of the real estate property owned by SAs in Greece, which is reduced to 0.1% for the buildings used by the company but not less than 1euro per m2 of the building. A special Real Estate Duty was recently imposed on real estate property with electricity supply on the basis of the square meter built surface of the building, its age and the price of the city zone. The duty is collected by the Public Electricity Company (DEH) or alternative suppliers of electricity through the utility bills for electricity. A special annual tax is imposed at 15% on the value of the real estate of companies established in non cooperative states that own the freehold or usufruct of real estate located in Greece unless the ultimate owner
(individual) is disclosed. The tax is calculated on the deemed value of the real estate. Certain exceptions from the above tax are provided.
Stamp duty at a rate of 3.6% is also payable on the rental income for commercial leases.
Are there are any Sales or Turnover?
Special sales taxes apply to sales in Greece of several kinds of goods such as tobacco and alcohol. The tax applies to their sale price.
Consumption taxes also are levied on petroleum products as well as on certain other categories of goods. An insurance tax is levied on the amount of premiums and the rights derived from the insurance contract.
Are there any special Taxes or Duties concerning the operation of the SA?
There are several taxes and duties in favor of the municipalities such
as: cleaning and lighting fees/fees for the use of streets, squares and pavements/real estate ownership duty (TAP), currently calculated at a range between 0.25 % and 0.35 % on the official objective (deemed) market value of the real estate property/tax on revenues of hotels/ tax on use of public space/tax on advertisements/duties on mobile phones etc.
What is the tax certificate?
In case the SA is audited by a chartered auditor, such auditors shall conduct a tax audit in parallel to the statutory audit and issue a tax certificate (Art. 82 par. 5 CIT). The auditor is obliged to mention the tax violations, as well as the non payment or inaccurate payment of taxes ascertained from the books and data kept. He shall complete and file his report within 10 days after the submission of the annual corporate tax return. In case no violation is reported the said accounting period will in principle be considered as tax audited.
Is there any special tax treatment of companies?
ies of “L. 89” Compulsory Law 89/1967 exempted from taxation branches or offices of foreign companies established in Greece, after special approval by the Ministry of National Economy. For reasons of conformity with EU law, this law has been radically amended by Law 3427/2005. The major change is that such branches or offices are now subject to income taxation in Greece, pursuant to the general provisions. Still, their taxable income is determined in a favorable way, their revenue being calculated on a cost-plus basis regardless of their involvement in the transaction. Ships and Shipping Enterprises Ships under Greek flag enjoy a special tax treatment with several exemptions. Branches or offices of foreign companies dealing exclusively with the management, exploitation, chartering, insurance, average adjustments, brokerage of sale, shipbuilding, chartering or insurance of ships under Greek or foreign flag may be exempt from income taxation.
Are there any tax incentives under investment laws?
Law 3908/2011 provides for: (a) capital aids in the form of cash grant;
(b) subsidy of leasing, which covers partial payment by the State of the installments relating to a lease which has been entered into for the use of new mechanical and other equipment (Law 1665/86); and (c) tax-free reserves in order to encourage dispersion of industry throughout the country. For more information see relevant Chapter.
What are the standard social security and welfare system contributions?
Employees and Employers are obliged to contribute to the employees Social Insurance Fund (IKA). The employees’ contribution is also withheld by the employer and calculated on the employee’s actual gross salary (in cash or in kind2). The total cost of contributions can reach 45.06% of salary (16.5% employee and 28.0656% on behalf of employer).
Is there any Directors’ liability?
Under the Greek penal system, legal entities do not bear criminal liability. Therefore, in case of certain administrative violations, which constitute an offence as well, the Chairman of the Board of Directors and/or the Managing Director and/or the relevant legal representative bears criminal liability. Further more, the SA’s representatives bear criminal liability for lack of payment of salaries due or illegal overtime work. Also, certain officers are jointly liable for taxes not paid by the SA under the circumstances described by the law.
Do minority shareholders have specific rights as per Law 2190/1920?
Yes. Apart from the rights that each share grants to the shareholders (for example, right to participate in the General Meetings of the Shareholders (GMS), voting right, right to receive dividends, right to participate in any increase of the share capital), specific rights are granted by law to minority shareholders provided that they hold a certain percentage of the Share Capital of the company i.e. 1/20, 1/10, 1/5, 1/3). The higher the shareholding, the stronger the right provided for it. The goal of the minority rights is to put a barrier to the authority of the majority shareholders, who elect the Board of Directors, thus having full control over the Company. It is a counter-balance against the dominance of the majority shareholder(s).
The tendency is to grant more rights and lower the thresholds (what recent laws such as 3604/2007 and 3884/2010 have done). The Articles of Association of the company may increase the protection of the minority shareholders by decreasing the required percentage (see below).
What kind of rights do they have?
Minority rights have to do mainly with procedural matters of the General Meeting of the Shareholders, information request, some veto rights and to some extent audit over the Company. These rights reflect mainly the control on a high level of the management of the Company, without interfering in the day to day management and the decision making process which is in the hands of the Board of Directors elected by the majority shareholder(s).
Are there different types of thresholds for minority shareholders?
Yes. There is a variation of thresholds i.e. 1/20, 1/5, 1/3. The higher the percentage the more significant these rights are.
What are the rights of shareholder(s) that have at least 1/20?
Shareholding of at least 1/20 of the share capital confers to the shareholders the following rights: a) right to request a convocation of an Extraordinary General Meeting of the Shareholders. The Board of Directors has the obligation to convoke the said Extraordinary General Meeting of Shareholders at the date requested by the Shareholder provided that this date is not longer than 30 days from the date of the Meeting)1; b) right to supplement the agenda of the General Meeting of the Shareholders that has already been convoked2; if the Board of Directors does not respond to such a request, they may publish the notice by themselves; c) right to request for a postponement of the General Meeting of the Shareholders3;
The temporary Chairman of the General Meeting of Shareholders is obliged to postpone the meeting for the requested day, which can not be fixed beyond a month; d) right to request specific information defined by the law to be provided in the GMS; e) right to request for the decisions in the GMS to be taken by roll-call vote4; f) right to request the disclosure to the Annual GMS of the amounts paid to Directors, managers and employees during the last two years5; g) right to perform a legal audit the company, following a Court order by the Single-Member Court of First Instance, if certain acts violate the provisions of the law or the company’s Articles of Association or the General Meeting’s decisions6.
What are the rights of shareholder(s) that have at least 1/3?
The second threshold of having at least 1/3 shareholding in the Company confers to the Shareholders the following rights: a) to veto a decision of the GMS approving contracts between the company and persons that have a conflict of interest (i.e., members of the Board and their relatives, controlling shareholders and their relatives, connected undertakings, etc.)7, b) veto rights in major decisions of the General Meeting of the Shareholders concerning the company i.e.: the change of the company’s nationality, the modification of the scope of the company, the increase of the shareholders’obligations8, the increase of the share capital (unless such share capital increase takes place ex lege or is effected by capitalisation of reserves), the share capital decrease, the change in the distribution of profits, the merger, demerger, conversion, revival, extension of its duration or dissolution, the granting or renewal of the power of the Board of Directors to effect a share capital increase9.
What are the rights of shareholder(s) that have at least 1/5?
The third threshold of having at least 1/5 shareholding confers to the
Shareholders: a) the right to request information about the course of company’s matters and its financial situation10; b) the right to audit the company, following a Court order by the Single-Member Court of First Instance, if from the overall course of business it is credible to believe that the management is not exercised according to the rules of fair and prudent management11. Contrary to the legal audit provided for the 1/20 shareholding, the current audit is an audit of substance. c) the right to veto a decision of the Shareholders Meeting to waive claims versus Directors12.
What are the rights of shareholder(s) that have at least 1/10?
The forth threshold of at least 1/10 shareholding confers to
shareholder(s): a) the right to request the Company to file a lawsuit against members of the Board of Directors13 to indemnify losses they caused to the company from their actions or omissions; and b) the right to veto a decision approving the granting of a guarantee in favor of members in the Board of Directors, controlling shareholders, connected undertakings, etc14.
Are there any other percentages with specific rights as per L.2190/1920?
There are also some other thresholds in the law, such as 2/100. The above percentage gives the right to any shareholder(s) having that percentage to request the annulment of any decision of the GMS, taken contrary to the law or the Articles of Association of the Company15.
Is there any specific right that a shareholder having even one share has according to the law?
Any holder of even one share has the right a) to ask (and the Company has the obligation to provide) specific information needed for the factual assessment of the items of the agenda in the GMS16; b) to file a lawsuit to recognize the invalidity of a Decision of the GMS17. These can be considered as special minority rights, intending to control the controlling majority and the management of the company, contrary to the rights inherent to the share itself, which are the automatic consequence of the shareholding i.e. the right to participate in the GMS, the voting right, right to receive dividends, right to participate in any increase of the share capital, the right to receive the relative proportion of shares in case of capitalization o reserves and the right to receive the proportion of its shareholding from the proceed of liquidation of the company .
Are these thresholds fixed or can they be lowered by the Articles of Association of the Company?
The Articles of Association can: a) lower both the 1/20 and 1/5 thresholds, but not more than half of it; b) provide additional rights (such as information request) on different percentages18. c) increase the majority needed to adopt decisions in the GMS, thus lowering the percentage of minority shareholders that can block decisions.
How can these rights be exercised?
The shareholder(s) who wish to exercise these rights have to prove their capacity as shareholder as well as the exact number of shares they own.
This can be done for example by depositing the shares (if there are share certificates) to the Company or provide a relevant certificate that these shares are kept in a bank institution or by reference to the shareholders book in case of registered shares which have not been incorporated in titles. Any petition must be addressed to the competent body (the Board of Directors or to the GMS).
Is there any put option of the minority shareholders?
With the amendment of law 2190/1920 in 2007 this right was added.
Actually there are two put options: One versus the Company and one versus the Majority Shareholder. a) Vis a vis the Company: One or more shareholders may request by the filing of a civil lawsuit, the repurchase of their shares by the company in the following cases: i) the GMS decides to transfer the siege social of the Company to another country; or ii) the GMS decides to introduce limitation in the transfer of the shares or a change of the objects of the Company or iii) in all cases provided for in the Articles of Association (on condition that the Articles of Association also provide for a relevant deadline for the filing of the civil law suit). A general condition in all above cases , is that it is detrimental to the shareholder to remain in the company as Shareholder. The civil law suit must be filed within three (3) months from the day the relevant amendment in the Articles of Association takes place. b) Vis a vis the Majority Shareholder; If a shareholder acquired after the incorporation of the company and still owes at least ninety five percent (95%) of the share capital of the company, one or more of the remaining shareholders may request through a civil lawsuit the purchase of their participation by this shareholder. The competent court for the hearing of this lawsuit is the Multi-Member Court of First Instance of the registered seat of the company. The law suit must be filed within a deadline of five (5) years from the time when the shareholder reached the above percentage,
Could the Articles of Association provide for additional rights?
Of course the Articles of Association can provide for additional rights as well as the procedure to be followed for their exercise, unless the law provides differently. There could be for example a right to information, a veto right, a right to appoint a member in the Board of Directors etc.
Can the Shareholders sign separate agreements (outside of the Articles of Association) defining their relations?
Based on the freedom of contractual relations, provided as a basic rule of our civil law (CC361) the Shareholders are free to sign any agreement between them (signing parties) in relation to their Shares and the Company and define their relationship. It is very common the shareholders to enter into a“Shareholders Agreement”to regulate subjects, like composition of the Board of Directors, first refusal rights etc.
Can the Shareholders Agreement have clauses contrary to the Articles of Association? And are they valid?
Yes, to the extent the relevant clauses do not reflect provisions of the law of public order. The parties are free to define their own rules as per freedom of contracts between parties19. The shareholders agreement however binds the parties for their relation but does not supersede the Articles of Association vis a vis third parties. As an example if the majority Shareholder violates its obligation to elect a number of Directors designated by the minority, he/she/it is in default and is liable to penalty or indemnity but the election of the board is valid.
What is the difference between a clause in the SHA and the AoA?
The Articles of Association is the document that regulates the operation of the Company and defines its modus operandi. Its clauses are binding for third parties as well. The
Shareholders Agreement is a contract between specific (or all) shareholders that defines the relations between themselves. The Articles of Association bind all the shareholders as well as third parties that have any relation with the Company, whereas the Shareholders Agreement is binding only between the parties (shareholders) that have signed it.
As a practical consequence, any violation of the Articles of Association could lead to nullity of any action whereas any violation of the Shareholders Agreement will lead to liability vis-àvis the shareholders that have singed the Agreement.
What type of clauses do the Shareholders Agreements usually have?
A shareholders Agreement can have any clause (in theory) as a civil law contract. The main categories are the following: a) the way the company works (i.e. Board of Directors/ Meetings of Shareholders/Administration), b) specific rights linked to the transfer of the shares (First Refusal Right, Put Option, Call Option, Tag Along, Drag Along etc), c) specific rights of shareholders (for example information request, etc), d) competition issues (usually obligation not to compete to the extent tolerated by the relevant legislation). Of course the above list is not exhaustive.
Could you explain the different rights linked to the transfer of the Shares?
The first typical clause is the First Refusal Right: any shareholder that wishes to sell his/her/ its shares must first offer them to the other parties. In most cases the exact procedure is described in details in the Shareholders Agreement. Another right is the Put Option: a specific shareholder has the right to offer its shares to another
shareholder(s) at a specific time frame and the other shareholder(s) has
(have) the obligation to buy. The Call Option is exactly the opposite: a specific shareholder has the right to ask to buy the shares of another shareholder(s) at a specific time frame and the other shareholder(s) has (have) the obligation to sell. TheTag Along is a right to protect
a“minority”shareholder: if the majority shareholder wishes to sell its shares to a third party then the minority shareholder (who has the right to tag along) can ask and the majority shareholder has the obligation to sell the shares of the minority shareholder. On the opposite direction, the Drag along is a right to protect the“majority”shareholder: if the majority shareholder wishes to sell its shares to a third party then he can ask the minority shareholder, and the minority shareholder has the obligation to, sell his or her shares along with the majority shareholder. These are the common and typical rights but the parties (shareholders) are free to define their meaning as well as their relationship in general as they want, describing other rights and possibilities.
Why not have the above clauses in the Articles of Association?
Various reasons dictate the inclusion of a provision in a Shareholders Agreement and not the Articles of Association. First the law may not allow a regulation like the one the parties wish e.g. the way the Board of Directors is elected and its composition. Secondly confidentiality:
the Articles of Association can be viewed by all the shareholders and third parties, the Articles of Association is valid for all shareholders. With the Shareholders Agreement you can define the relations between certain shareholders (and only between them). Thirdly there is a limit to what you can put in the Articles of Association: a typical example would be the Put Option. Up until recently it wasn’t allowed to have such provisions in the Articles of Association. With the latest amendment of the L.2190/1920, this is permitted.
What happens if there is a conflict between the Articles of Association and a Shareholders Agreement?
As mentioned hereinabove, the Shareholders Agreement, is an Agreement between Shareholders and is binding only between the parties that have signed it. The Articles of Association, from the other hand, is a document that is binding vis-à-vis all the shareholders and to some extent vis-à-vis third parties. So, to take one example, if there is a first refusal right in the Articles of Association, if not respected then the transfer of shares is null and void. On the other hand, if such right (first refusal) is provided for in the Shareholders Agreement and not respected, this does not affect the validity of any transfer, it only creates a right for damages (or whatever other sanction the parties have agreed upon) between the contracting parties.
In view of the above how can a Shareholders Agreement be enforced?
As any contract, the shareholders agreement can be enforced through courts or arbitration. The contracting party may be forced to buy or sell through a Court or arbitration decision or to perform the contract in a feasible way. Also any violation of the Shareholders Agreement creates a liability of the violating party for indemnity or agreed penalty. This means that the party who has suffered damages can seek compensation before the Civil Courts or the Arbitration Tribunal. In order to avoid having to prove the amount of damage, usually the Shareholders Agreement has specific monetary penalty clauses in cases of defaults (e.g. if one sells the shares although subject to a first refusal right, the agreed penalty may by equal to their value