αριθμ. πρωτ. 1121961/8644/0016/ΠΟΛ.1161/8-12-2008
MINISTRY OF ECONOMY
& FINANCE
GENERAL SECRETARIAT FOR TAX & Athens, 8 December 2008
CUSTOMS MATTERS Prot. No. 1121961/8664/-0016
GENERAL DIRECTORATE OF TAXATION
DIRECTORATE 16 (COLLECTION OF PUBLIC REVENUES)
DEPARTMENT B’
ADDRESS: 20 PANEPISTIMIOU ST. POL: 1161
POSTAL CODE: 106 72
INFORMATION: Chr. Sotiropoulou TO: as per distribution list
TEL: 210 3635679
210 3614280
FAX: 210 3635077
SUBJECT: “Lifting of attachment over usufruct following the death of the usufructuary”.
We hereby communicate Opinions No. 560/2006 and 163/2008 of the Legal Council of the State, which have been accepted by the Deputy Minister of Economy and Finance, in order for you to take note and act accordingly.
With these opinions, the following have been accepted:
From the combined interpretation of Article 1167 of the Civil Code and Article 36 paragraph 1 of the Code for the Collection of Public Revenues, as well as the provisions of Articles 88 paragraphs 1, 2 and 4 of Law 2362/1995 (on Public Accounting), and Articles 263, 265, 1273 and 1280 of the Civil Code, it follows that:
Usufruct, unless otherwise specified, is extinguished automatically upon the death of the usufructuary.
In the event that an attachment has been imposed by the State on the usufruct of immovable property of a debtor, after his death, and since, as above, the usufruct is automatically extinguished, the object of the imposed attachment ceases to exist.
The State, in this case, is obliged, after the death of the usufructuary and following an application by the person having a legal interest, namely the former bare owner and now full owner, to proceed to lift the attachment of the extinguished usufruct, through the authority that imposed it, namely the Head of the competent Tax Office.
The lifting of the attachment of the usufruct as above does not eliminate the interruption of the limitation period of the debts for which the attachment was imposed.
Attached: Opinions No. 560/2006 and 163/2008 of the Legal Council of the State.
True Copy The HEAD OF THE DIRECTORATE
The Head of the Secretariat P. Voli
HELLENIC REPUBLIC
MINISTER OF ECONOMY
AND FINANCE
LEGAL COUNCIL OF THE STATE
OFFICE OF THE LEGAL ADVISOR
OF THE MINISTRY OF ECONOMY
AND FINANCE (G.L.K.)
Opinion No. 560/2006
LEGAL COUNCIL OF THE STATE
SECTION B’
Session of 12-12-2006
Composition: President: Christos Tsekouras, Vice-President of the Legal Council of the State
Legal Advisors: Al. Tzeferakos, Vice-President of the Legal Council of the State,
Nik. Katsimpas, Sp. Dellaportas,
Sot. Papageorgakopoulos, Kon. Kapotas,
Petr. Triantafyllidis, Il. Psonis,
Chrys. Avgerinou
Rapporteur: Efthymios Tsakas, Assistant Legal Advisor
Question Number: The document No. 1045714/3178/G-0016/7-7-2006 of Directorate 16 (Collection of Public Revenues) of the Ministry of Economy and Finance.
Summary of the Question: It is asked whether, after the imposition of attachment by the State on the real right of usufruct, if the usufructuary dies, the State must proceed to lift the imposed attachment (and, if so, which authority is competent, the Head of the Tax Office or the Legal Council of the State), or whether this is not necessary, since upon the death of the usufructuary the usufruct is automatically extinguished and therefore the object of the attachment ceases to exist.
On the above question, Section B of the Legal Council of the State issued the following opinion:
- Article 1167 of the Civil Code provides the following:
“Usufruct, unless otherwise provided, is extinguished by the death of the usufructuary”.
Also, Article 36 paragraph 1 of the Code for the Collection of Public Revenues provides the following:
“Attachment of immovable property is carried out by written order of the Director of the Public Treasury by a bailiff or an employee of the Public Treasury, in the presence of one adult witness”.
- a) In the present case—as follows from the facts set out in the question by the requesting Directorate—a debt was certified against debtor A.P., which today amounts to euros. With deed dated 30.12.1992 of the Athens notary I.G., the debtor transferred the bare ownership of his immovable property to his granddaughter E.P., reserving the usufruct thereof for himself and his spouse. For the securing of this claim, the above Tax Office imposed, on 3.3.1994, attachment on the real right of usufruct of the above property and subsequently issued the relevant auction schedules. On 15.8.1996 the debtor died and his heirs (spouse and children) accepted the inheritance with the benefit of inventory and subsequently drew up an inventory report of the estate. On 5.11.2002 the spouse of the debtor also died. By her application, the granddaughter of the deceased debtor and bare owner of the property requested the lifting of the attachment of the usufruct.
b) According to Article 1167 of the Civil Code, upon the death of the usufructuary, the real right of usufruct on which the attachment had been imposed is automatically extinguished—unless otherwise provided at its establishment—with the result that the object of the imposed attachment ceases to exist. However, irrespective of this automatic extinction, the lifting of the imposed attachment is required when the real right on which it was imposed has been extinguished. This is because, in view of the need for security of transactions in the field of real rights, increased formality is required in the formation of legal relations. The need for certainty regarding existing real rights requires—both for the registration of an attachment and for the lifting of such attachment—formal as well as substantive publicity, so that third parties may ascertain with certainty, at the time of the transaction, the real rights and, on the other hand, know on which of these real rights enforcement is being pursued. The aforementioned principles (publicity and specificity) require the lifting of the imposed attachment by the creditor when the real right of usufruct has been extinguished, since the maintenance of the registration—even if devoid of content—may create a false impression to third parties regarding the existence of a non-existent real right (usufruct), as well as regarding the existence of attachment on another real right (ownership).
Under these circumstances, the State must proceed in this case to lift the imposed attachment on the real right of usufruct, due to the death of the usufructuary A.P. The lifting of the above attachment shall be carried out by the authority that imposed it, namely the Head of the competent Tax Office, in accordance with the procedure provided for in the provisions governing the operation of Tax Offices (Presidential Decree 16/1989).
- Consequently, on the above questions, the Legal Council of the State (Section B) unanimously held that:
a) The Tax Office must proceed to lift the imposed attachment on the real right of usufruct due to the death of the usufructuary
b) The lifting of the attachment shall be carried out by the Head of the Tax Office who imposed it
Considered The Rapporteur
Athens 13/12/06 Efthymios Tsakas
The President of the Section
Christos Tsekouras
Athens, 30 July 2007
True Copy Accepted
The Head of the Secretariat The Deputy Minister
OF ECONOMY AND FINANCE
ANTONIOS BEZAS
HELLENIC REPUBLIC
MINISTER OF ECONOMY
AND FINANCE
LEGAL COUNCIL OF THE STATE
Opinion No. 163/2008
LEGAL COUNCIL OF THE STATE
SECTION B’
Session of 1-4-2008
Composition:
President: Alexandros Tzeferakos, Vice-President of the Legal Council of the State,
Acting President, due to the impediment of the President of the Section Christos Tsekouras, Vice-President of the Legal Council of the State
Legal Advisors: Nikolaos Katsimpas, Spyridon Dellaportas,
Andreas Fytrakis, Petros Triantafyllidis,
Ilias Psonis, Vasiliki Douska
Rapporteur: Efthymios Tsakas, Assistant Legal Advisor
Question Number: The documents No. 1045714/3178/G-0016/7-7-2006 and 1110502/8621/0016/29-3-2007 of Directorate 16 (Collection of Public Revenues) of the Ministry of Economy and Finance.
Summary of the Question: It is asked whether the lifting by the State of the imposed attachment on usufruct, extinguished due to the death of the usufructuary (debtor), following an application by the former bare owner and now full owner, constitutes a ground for retroactive elimination of the interruption of limitation caused by the imposition of the attachment, pursuant to Article 88 paragraph 2 of Law 2362/1995.
On the above question, Section B of the Legal Council of the State issued the following opinion:
I. 1. Article 1167 of the Civil Code provides the following:
“Usufruct, unless otherwise provided, is extinguished by the death of the usufructuary”.
- Also, Article 88 paragraph 1(a) of Law 2362/1995 (on Public Accounting) provides the following:
“The limitation period of a monetary claim of the State is interrupted by:
(a) the attachment of a property of the debtor or co-debtor or third-party guarantor, regardless of whether it is effected in their hands or in the hands of a third party”.
Furthermore, Article 88 paragraph 2 of the same law provides the following:
“The lifting of an attachment or deletion of a mortgage or revocation of another act of administrative or enforcement execution by the competent Tax Office or other competent authority, following an application by the debtor or another of the persons referred to in paragraph 1 case (c), does not retroactively eliminate the interruption of the limitation period”.
II. From Article 1167 of the Civil Code it follows that upon the death of the usufructuary, unless otherwise provided at the establishment of the usufruct, the real right of usufruct is automatically extinguished, on which the attachment had been imposed, with the result that the object of the imposed attachment ceases to exist.
Furthermore, from the provisions of Article 88 paragraphs 1(a) and 2 of Law 2362/1995 (on Public Accounting), it follows, by argument a contrario, that if the attachment is lifted without an application by the debtor—ex officio by the competent authority that imposed it—the interruption of limitation caused by the attachment is deemed not to have occurred, as a legal fiction, derived interpretatively also from the analogous provisions of Articles 263, 265, 1273 and 1280 of the Civil Code, which apply also to State claims under paragraph 4 of Article 88 of Law 2362/1995, subject to the specific provisions of the same article.
However, the above conclusion presupposes that the attachment being lifted concerns an existing real right at the time of the lifting. Only under this assumption does the retroactive reversal of the legal consequences of the lifting of the attachment in the field of limitation make sense, consisting in the acceptance that by the ex officio lifting of the attachment the creditor retroactively withdraws the formal notice addressed to the debtor for payment of the debt.
Consequently, the lifting of the attachment of usufruct, extinguished due to the death of the usufructuary (debtor), following an application by the person having a legal interest, namely the former bare owner and now full owner—who may also seek the annulment and deletion of the attachment before the court pursuant to Article 74 of the Code for the Collection of Public Revenues—does not constitute a ground for retroactive elimination of the interruption of limitation caused by the imposition of the attachment, pursuant to Article 88 paragraph 2 of Law 2362/1995.
A contrary interpretation, addressing the issue in an overly formalistic manner, on the one hand fails to assess the close link between usufruct and bare ownership, and on the other hand would effectively force the State to refuse to proceed consensually to lift the attachment after the death of the usufructuary and the extinction of the right, obliging the third party to file objections, which would not be justified. Such conduct is not consistent with the principles of good faith and proper administration which must govern State action.
III. In the present case—as follows from the facts set out in the question—a debt was certified against debtor A.P. By deed dated 30-12-1992, the debtor transferred bare ownership to his granddaughter while retaining usufruct. For securing the claim, attachment was imposed on the usufruct. The debtor and later his spouse died. The granddaughter, now full owner, requested the lifting of the attachment.
IV. Consequently, the Legal Council of the State (Section B) unanimously held that the lifting of the attachment in this case does not constitute a ground for retroactive elimination of the interruption of limitation.
Considered The Rapporteur
Athens 9.4.2008 Efthymios Tsakas
The Vice-President of the Section
Alexandros Tzeferakos
Athens, 2008
True Copy Accepted
The Head of the Secretariat The Deputy Minister
OF ECONOMY AND FINANCE
ANTONIOS BEZAS
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