COURT OF FIRST INSTANCE OF THESSALONIKI

No. 14813/2013

MINUTES AND DECISION
OF THE 1ST THREE-MEMBER MISDEMEANOUR COURT OF THESSALONIKI
Public hearing of 4 November 2013

Composition of the Court: Penelope Serafeimi, President of the Misdemeanour Court; Maria Dimitriou, Judge of the Misdemeanour Court; Olga Tingas, Trainee Judge, since the other senior judges were unavailable; Lambros Tsongas, Public Prosecutor; Vasiliki Chatzivasileiadou, Court Clerk.

Lawyer: Stavros Kazantzidis.

Appellant–Defendant: ………….

Offence: Violation of Articles 18 §1(b), 20 §1(b), 21 of Law 2523/1997 and Article 98 of the Penal Code.

[…]

REASONING

According to Article 18 §1(b) of Law 2523/1997, anyone who, in order to avoid payment of value added tax, turnover tax and withheld or passed-on taxes, duties or contributions, fails to pay or inaccurately pays or offsets them, or misleads the tax authority by presenting false facts as true or by unlawfully concealing true facts and receives a refund, or withholds such taxes, duties or contributions, is punished with imprisonment of at least one (1) year, provided that the amount of the principal tax, duty or contribution to be paid, or the amount of VAT offset, not paid or inaccurately paid, amounts annually to between three thousand (3,000) euros and seventy-five thousand (75,000) euros.

The above provision clearly describes both the objective and subjective elements of the offence of tax evasion committed through non-payment or inaccurate payment to the State of VAT, etc. In particular, the subjective element of the offence is established only where the taxpayer acted “in order to avoid payment of VAT” or to pay less tax. From the use of the phrase “in order to” in the wording of the law, it follows that this is an offence requiring a specific purpose, and the taxpayer must act with direct intent, specifically by concealing net income through the non-payment or inaccurate payment of VAT, knowing and seeking to avoid payment of VAT.

If the above criminal purpose is absent, the subjective element of the offence is not fulfilled and the offence under Article 18 of the above law is not established. Therefore, a conviction for the above offence must contain full and specific reasoning, not only as to the objective elements establishing the offence, but primarily as to the specific purpose of avoiding payment of VAT, which must be clearly stated and specified, since it constitutes an element of the subjective nature of the offence under Article 18 of Law 2523/1997.

In the present case, from the evidentiary procedure, the documents publicly read in court, the testimony of the defence witness examined under oath, together with the defendant’s statement and the explanations of his defence counsel, it was proven and the Court was convinced that during the periods from 1-1-2011 to 30-4-2011 and from 1-5-2011 to 31-12-2011, the defendant did not pay VAT exceeding the amount of 3,000 euros.

In particular, as a general partner and manager of the company …………., seated in …………., he did not pay to the Tax Office of Ionia, Thessaloniki, VAT amounting to 35,408.83 euros for the accounting period from 1-1-2011 to 30-4-2011, and VAT amounting to 37,684.86 euros for the accounting period from 1-5-2011 to 31-12-2011.

Furthermore, it emerged from the above evidence that the defendant wished to pay the above amount, which he failed to pay on time due to objective inability. The printing business he operated, employing 17 people, was affected by the financial crisis in 2011, as invoices issued that year to buyers/customers remained unpaid in the amount of 700,000 euros. As a result, on the one hand, he did not collect the corresponding VAT amount, while on the other hand he was required to pay it to the State.

He therefore submitted, on 28-8-2013, a request for settlement of this debt to the competent Tax Office of Ionia, Thessaloniki. The request was accepted, and the defendant had already paid three of the total forty-seven instalments, each amounting to 5,102.67 euros, beginning on 3-9-2013.

On the basis of the above, no evidence established that the defendant acted with intent or with the purpose of avoiding payment of VAT. On the contrary, he intended to pay it and failed to do so in 2011 due to objective inability. For this reason, he proceeded with settlement of the debt as soon as he began to recover partially. Since the offence of non-payment of VAT requires direct intent of the first degree, which is not present in the defendant’s case, he must be declared innocent of the offence under Article 18 §1(b) of Law 2523/1997.

FOR THESE REASONS

The Court tries the defendant …………., present before the Court, resident of Pylaia, Thessaloniki.

DECLARES the defendant innocent due to lack of intent, of the charge that in Thessaloniki, during the periods from 1-1-2011 to 30-4-2011 and from 1-5-2011 to 31-12-2011, by several acts constituting continuation of the same offence, he failed to pay VAT exceeding the amount of 3,000 euros. In particular, as a general partner and manager of the company ……, with Tax Identification Number …………….. and seat in .., he failed to pay to the Tax Office of Ionia, Thessaloniki, VAT amounting to 35,408.83 euros for the accounting period from 1-1-2011 to 30-4-2011, and VAT amounting to 37,684.86 euros for the accounting period from 1-5-2011 to 31-12-2011.

Decided and published immediately in open court.

Thessaloniki, 4 November 2013.

The President
The Court Clerk