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Is it possible that accounts, that your debtors hold as beneficiaries abroad, i.e. in institutions like for instance banks, depositary institutions like for instance institutions withholding intangible assets, investing entities like for instance financial corporations and insurance companies, could be revealed? Useful legal “tools”. Putting an effort to get data from records kept according to the provisions regarding automated information exchange

In case:

  • You are inclined to submit a lawsuit in order to claim your right, your interest, your demand etc (or even better, in case you are in possession of an executable title due to a court decision, order of payment etc.)
  • You are most certain that your debtor is in possession of financial deposits in a financial institution abroad, and then you might as well seek for them by making use of data derived from the implementation of the Multilateral Agreement of Competent Authorities (MACA) regarding automated exchange of information

As it shall be analyzed accordingly, the relevant financial data of a debtor of yours abroad is most probably and already stored, recorded and known to Greek Authorities through the aforementioned procedure and available to the Independent Authority Of Public Finance (IAPF), and the creditors with vested interests shall be able to get it even through the issuance of a relevant Prosecutor’s Order

In particular, since 2016 Greece has initiated the process of information exchange with all EU member-states, and other third countries as well, whereas today more than 84 countries have signed the Multilateral Agreement of Competent Authorities (MACA) regarding automated exchange of information

The notion of “automated exchange of information” entails the periodic, systematic and mass transfer of tax payers’ data from their countries of income origin to their tax homelands for certain income and property categories

The organizations which are in the process of exchanging information are the financial institutions, i.e. the depository institutions (e.g. banks), depositary institutions (e.g. institutions withholding intangible assets), investing entities (e.g. brokers) and insurance companies

Due Diligence requirements

The so-called fianancial institutions have to state all natural persons’ bank accounts and even all other entities’ bank accounts that might have been considered tax residents of a third state. The submission of information as well as due diligence by any financial institution form part of the following preconditions:

  1. If the beneficiary’s bank account is that of a natural person or of an entity (including companies, joint ventures, trust funds/ trusts, institutions etc.)
  2. If the account is already an “existing” or, a “new”one; existing is the one opened before 01.01.2016
  3. The sum/ total of the bank account on 31.12 of the year in question

 

Information exchange

Information is most surely exchanged not only for personal, but also for corporate accounts and this is usually about:

  1. The name, the address, the tax number, the date and the birthdate of the beneficiary’s bank account
  2. The bank account number
  3. The name of the financial institution at hand
  4. The sum/ total of the bank account at the end of the relevant year or whenever such information should have been presented, or the termination of a bank account, in case such account was terminated during that year, or that period
  5. In case of an insurance agreement: the buy-out price at the end, or the buy-out price in case of an early [premature] termination
  6. Should a deposit scenario was to be set in place:

A. The brutto sum of interests, the brutto sum of dividends and the brutto sum of other incomes that might have emerged in terms of property assets as being part of that account, and

B. The total brutto sum due to a sale or a purchase of financial property data that have long been deposited or credited in that bank account

  1. In a case of a deposit bank account: the total brutto sum of interests, the total brutto sum already deposited or credited to a bank account beneficiary. The information exchange takes place every September of the year following the year related to the information in question (e.g. the data regarding the 31.12.2018 season shall be sent on September 2019). This procedure, that shll be realized under very strict confidentiality terms and through a particular computing system, shall be concluded by the end of September regarding both the case of EU member-states and of third counties, and the case of United States. The Independent Authority shall be forwarding this information to all interested parties by the end of September 2019, being consistent to its international obligations

 

Corporate Accounts

Corporate accounts are divided between those of non-financial entities of active status and those of passive ones (NFEs). Active NFEs are the ones that more than 50% of their income derives from their corporate operation, while passive NFEs are the ones that more than 50% of their income derives from the management of their portfolios and which are usually used in a way that their true beneficiaries-natural persons remain unrevealed. With regards to active NFEs the aforementioned data is forwarded only to the country where they keep their tax seat, while in terms of passive NFEs this data is forwarded also to the country of tax seat of the managing natural person who is the true beneficiary

Furthermore, and according to number 150/ 2012 Opinion of the Legal Counsel of State, the Order of the Prosecutor regarding the provision of data towards the public from the competent Tax Authorities which is considered confidential, and according to article 85 of the Code Of Tax Controls, is not binding for the tax authority as such, in case it does not entail an explicit mention on matters of confidentiality while it does not either entail an order of the Prosecutor’s office to the competent administrative authority regarding the notice of the asked data to the actual applicant, but, on the contrary, it merely represents a transfer to it of the relevant application to have its content evaluated and whatever else is necessary to the end of further actions to be taken accordingly within its jurisdiction. In this way no further obligation on part of the State surface regarding the provision of the asked data. In light of the above there is no such thing as revocation of the relevant Opinions as issued by the Legal Counsel Of State with respect to the matter at hand. However, and in light of the serious administrative and penal fines that could be initiated against public servants who have disagreed on complying with the relevant order of the Prosecutor’s office and so as to avoid any responsibility on part of the State as provided by article 105 of IntrLCC , it is to be considered necessary when the competent public servant of the tax authority thinks of the asked information as part of the tax confidentiality while such a thing does not stem from the order as an expression of opinion bound by confidentiality, his/ her estimation to be forwarded to the Prosecutor and if the latter considers such a notion irrelevant, to proceed with the provision of the asked data.

The data published in the tax payers’ lists (art. 85 par. 3 Code of Tax Controls) and which is not confidential, is to be provided by the competent Tax Authorities to the applicants that can prove their vested interest and after having informed in advance the persons whose data becomes available.

Vested interest is there in cases of personal data use not only in terms of lawsuit in the Court, but also when there is intention to proceed with a lawsuit with regards to a claim of some sort which can be substantiated by other evidence

 

This present notice entails information in synopsis, and as a result it is only meant to provide a general framework and guidance of some sort. It does not serve as a substitute of a thorough investigation, or as an exercise of actual professional opinion. Should you need anything specific in mind, you should turn to a respective counsel.

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