No. 1439/2020 judgment of the One-Member Misdemeanor Court of Serres presents great interest, as in a pending tax evasion case, ruled that the starting point for calculation of the statute of limitation, after the modifications occurred by l. 4745/2020, is the time where the alleged perpetrator committed the offense, giving thus a solution to the theoretical issue that had arisen on the addressing criminal acts that were committed before the enactment of the aforementioned law.

In the disputed case the defendant was referred to the hearing of the competent court to be tried for the offense of tax evasion. More specifically, after the investigation conducted by the Serres I.R.S. officers in the motor vehicle spare- parts and accessories wholesales business he operated, it was found that he had not submitted a periodic VAT statement for the 1 st , 2 nd , 3 rd and 4 th quarter of 2013 fiscal year. The total VAT amount that the above alleged perpetrator had apparently not returned to the State and to have availed himself of, respectively, amounted to 92.603,50 euro for the year 2013.

In the reasoning of the judgment above it is pointed out that l. 4745/2020 modified the time of the statute of limitation commencement for the tax evasion offense, as by articles 32 par.3 and 4 and 92 of L. 4745/2020, the respective articles 55a and 68 of the Tax Procedure Code, pursuant to which, in the previous legislative regime, the stature of limitation started from the issue of the final judgment on the appeal lodged by the taxpayer and in case where no appeal was lodged, from the finalization of the tax entry due to lapse of the appeal deadline, were amended.

However, after the enactment of the law above, the time of perpetration of the act and the commencement of the statute of limitation coincide. It is, however, stressed in the judgment that the statute of limitation may start from the time of perpetration of the act, but, for acts committed after the issue of the law above, the statute of limitation is suspended from the issue of the fine warrant issue by the I.R.S. and up to the finalization of the tax entry, and, much more so, without the limitations of article 113 PC.

The question raised, from a theoretical point of view, related to the starting point for the commencement of the statute of limitation for the pending cases, committed before the enactment of L. 4745/6.11.2020. On this critical question, the Court notes that law may stipulate, in article 96, that the provisions of article 32, which delimit the statute of limitation starting point, spread over the acts which are committed after the enactment of the law at issue, whilst the provisions of article 33 also cover any pending cases, but, thereafter, it characterizes this choice of the legislator as a failure.

The judgment goes on by stating that, it is not possible on the one hand to repeal an old provision that stipulated the statute of limitation starting point for acts committed after the enactment of the law above, but at the same time, the same repealed provision to continue to apply to acts that preceded its entry into force. It, thus, notes in its reasoning, that the legislator violates the established by article 4 par.1 of the Constitution principle of equality, as this treatment creates two-speed accountable persons against justice.

At the same time, it notes that the legislator in not entitled to prohibit the retroactive implementation of the most lenient criminal law, as such a settlement would directly contradict the principle of legality (art.7 par.1 Const.) as well as the principle of equality (art. 4 Const.)

In view of these considerations, the Court, by implementing the principle of retroactivity of the most lenient law and most lenient provision of article 2 of the new PC, which has supra-legislative force (by virtue of articles 4 and 7 S., article 7 par.1 ECHR and article 15 par.1 of the ICCPR) in combination wit the principle of equality, it considered that both on the new cases, that is, those to be committed after the enactment of l. 4745/2020 and those committed before its enactment, only the provision of articles 32 and 92 of l. 4745/2020 is applicable, and subsequently, the statute of limitation starting point coincides with the time of perpetration of the act.

Thus, the Court finally considered that the actual time of filling the individual periodic VAT statements, is the time of filing the VAT return which in any case did not exceed in the present case a) 30.4.2014 for the taxpayers that at the expiry of the financial period kept single-entry books pursuant to the TTDC (L.4093/2012) or the were not obliged to keep CBR books and b) 30.5.2014 for taxpayers who at the expiry of the financial year kept double-entry books pursuant to TTDC (L.4093/2012). Given that the defendant, based on his business activity, kept single-entry books, it concluded that the time on which he should have filed a VAT return was no later than 30.4.2014.

In view of this reasoning and after the lapse of an eight-year period from the perpetration of the offense, it finally stopped the criminal prosecution.

The law above resulted to the implementation of the provisions of articles 2, 111-113 of the new PC regarding the date of the statute of limitation commencement, which led to a slew of pending tax evasion cases, of misdemeanor nature, to be statute-barred.

The truth is, of course, that this development did not make part of the will of the legislator as, within a few days from the enactment of the law above, he restored the differentiation of the criminal statute of limitation starting point, by article 163 of l. 4764/2020, and the amendment of article 55A of the T.P.C., stipulating that “…2. The statute of limitation of the present law crimes starts from the expiry of the time period within which the Tax Administration may, according to article 36, proceed to the issue of an administrative, assessment or corrective tax determination, unless such an act is already issued, in which case the statute of limitation of the aforementioned crimes starts from the issue of the said act.”. 

In any case, however, this provision, as being more unfavorable for the defendant, pursuant to the substantive law, may not incorporate all tax evasion offenses that have been committed up to the promulgation of l. 4764/2010.