Decision No. 12231/2003 1 of the Administrative Court (First Instance) of Athens

Summary of facts: Ms ï.F, a recognized refugee from Turkey, lives in Greece permanently since 1986. Since 1996, she works as a translator / interpreter and submits the relevant income tax declarations. She is, furthermore, a student in the School of Sociology of the Panteion University. On 23.6.2000, she bought a flat in Athens and requested from the relevant tax services to exempt her from paying the required transfer tax on the basis of article 1 of Law 1078/1980, since the provisions of this article were fulfilled in her case (first residence purchase). The taxation authorities did not apply the provisions of the a/m law on the grounds that she did not have the Greek nationality and the competent civil servant confirmed the amount of the required tax, in addition to the communal taxes, to be paid by the buyer. This latter applied before the Administrative first-instance Court of Athens requesting the cancellation of this administrative act confirming the transfer taxation.

Reasoning: Article 1 of Law 1078/1980 stipulates that «contracts of purchase, in totality and in full ownership of real property by a married individual are exempt from transfer taxation, if the buyer, the spouse or any of their children ( ....) are not owning in full property or by virtue of usufruct or right of residence, another house or apartment fulfilling the housing needs of the family; or if (they) have not any right to full ownership to a constructible piece of land; or to part of a land property, on which respects the possibility to construct a building, capable to fulfill their housing needs». The decision of the Minister of Finances, dated 10.7.1989 (POL.1162), issued by application of the said provision of Law 1078/1980, which in fact offers solutions to issues that had appeared in relation to the uniform application of the provisions to exempt first residence purchases from paying the transfer tax, stated the following, concerning the beneficiaries of this exemption: «Exemption is granted only to Greek nationals. Hence, aliens cannot benefit from this exemption. 3. Exceptionally, this exemption is granted to ethnic Greeks from Turkey, Northern Epirus and Cyprus, if they are permanent residents in Greece. The permanent residence, in these cases, can be proven by any legal means, such as start of exercising a profession, employment in salaried activities, rent of an apartment, studying in Schools etc. 4. this exemption is offered to Greeks permanently residing in the country».

Paragraph 2 of article 7 of the 1951 Geneva Convention on the Status of Refugees stipulates that: «After a period of three years' residence, all refugees shall enjoy exemption from legislative reciprocity in the territory of the Contracting States». As regards housing, article 21 of the Convention stipulates that "the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances». Concerning relief and support by the public authorities, article 23 of the Convention states that «The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals». Finally, concerning fiscal charges, article 29 of the Convention states that: «The Contracting States shall not impose upon refugee duties, charges or taxes, of any description whatsoever, other or higher than those which are or may be levied on their nationals in similar situations».
The a/m provisions, in conjunction with paragraph 1 of article 28 of the Constitution, lead to the conclusion that the countries hosting refugees are obliged to offer them relief and support similar to that provided to their nationals, and not to burden with fiscal duties heavier than those imposed on their nationals. Given that these provisions have been ratified by L. D. 3989/1959 and have superior force to any other, contrary to them, national legal provision (cf. CoS 3103/1997 ), and given that they are immediately enforceable in the Greek legal order and do not constitute a simple incitement, it is concluded that provision on tax exemption for buying a first residence are applied to refugees residing in Greece. As a result, these persons are treated more favorably than other aliens (with the exception of nationals of Member States of the European Union, by application of the relevant provisions of community law). The recognition of this exemption does not constitute an interpretation in extenso of tax legislation, prohibited by the law; instead it consists in the implementation, to the letter, of the desire of Greek legislative authorities to apply their obligations whenever ratifying and entering into force an international convention.

The 7th section of the 1-member Administrative 1st-instance Court of Athens quashed the act under review, which confirmed the tax duties for the purchase of the flat and order to return this amount to the applicant as amount not due.

Note: the public authority did not appeal against the said ruling and the competent tax authorities returned the taxes paid to the applicant.