Tax treatment of retroactive income paid to the heirs of beneficiaries

Tax treatment of retroactive income paid to the heirs of beneficiaries

With the circular E. 2036/23.05.2023 AADE instructions are provided for the tax treatment of retroactive income paid to the heirs of beneficiaries.

We know in particular:

1. Article 7 of Law 4172/2013 (A’167) hereinafter referred to as the Civil Code, stipulates that:
1. Taxable income is the income remaining after deduction of deductible expenses, according to the provisions of the CFE of gross income.
2. KFE distinguishes between the following categories of gross income:
a) income from paid employment and pensions,
b) income from commercial activity,
(c) capital income and
d) capital gain income from capital transfer

2. In accordance with the provisions of paragraph 4 of article 60 of law 4172/2013 (A 167), in income from salaried work and pensions paid retroactively, in accordance with article 12, as well as in additional costs that are not not included in the normal salary, a deduction is made at the rate of twenty percent (20%) on the amount paid regardless of the tax year of this income.

3. In accordance with the provisions of Article 1 of the Code of Inheritance, Gifts, Parental Allowances and Gains from Gaming Tax Provisions (sanctioned by Article 1 of Law 2961/2001) (hereinafter Code), a tax is imposed on property acquired as a result of death, donation, parental allowance and gambling winnings, for which any natural or legal person who acquires property for one of these causes is liable. According to the provisions of Article 2, the acquisition of property mortis causa for tax purposes is – among other things and above all – an acquisition by succession. In this case and in accordance with the provisions of article 6, liability to the payment of inheritance tax arises at the time of the death of the heir, subject to the transfer of the time of liability by law, in particular defined in the particular cases of article 7 of the code. In addition, in accordance with the provisions of article 105 of the Code of property acquired by inheritance, the head of the public financial service is required, at the request of the taxpayer, to issue him a certificate confirming the filing of the inheritance tax return, as well as than the total or partial performance of its obligations or its exemption from them for reasons provided for by law. In addition, in accordance with the provision of paragraph 3 of article 82 of the Code, when the estate includes securities and other general movable property that has been deposited in banks and other legal or natural persons, inheritance tax proportional to their value are paid. prior to their acceptance and issuance of the Section 105 certificate.

4. In addition, in the decisions of the Governor of AADE relating to the nature and content of the certificate of salaries or pensions, the certificate of remuneration for activity and the certificate of income from dividends, interest, rights as well as the presentation thereof using an electronic means of communication via the Internet, for each tax year, it is provided that for retroactive sums relating to deceased persons and which are declared by the heirs as part of the inheritance, insofar as they were received by the heirs and not by the deceased, no document is transmitted by the Agency which pays the sums due, these not entering into the concept of income (to indicative decisions A.1275/2021 and A.1006/2023).

5. In addition, as clarified by the Administration, the amounts related to increases in salary or pension of a deceased person and relating to a period prior to his death, and paid to his heirs, constitute an element of inheritance. and will therefore be subject to inheritance tax. This, as a direct consequence of the general principle of inheritance law (AK article 1710 and following) according to which the object of the inheritance is the sole property of the deceased, subject to monetary valuation, that is to say the rights and obligations of the deceased, but and the legal situations and expectations and, in general, the rights of liability and the property relations of these. These sums, as far as the heirs of the deceased are concerned, do not meet the conceptual characteristics of income, i.e. periodicity, a stable and continuously exploitable source, remuneration for personal work or another activity, or the fruits of a heritage. Therefore, these amounts for the heirs do not constitute income and are therefore not taxable, nor is there any obligation to withhold income tax when paid to the beneficiaries.

6. As our service has been informed, eE.FKA (formerly EFKA) after presentation of the certificate of article 105 of law 2961/2001, pays the heirs of its policyholders retroactive amounts of pensions in execution of court decisions. However, when paying the sums, he deducts twenty percent (20%) of income tax by invoking the provisions of 4° of article 60 of the Civil Code and issues a salary-pension certificate printed in the name of the heirs. when column of retroactive pensions, it is written “HERET”.

7. However, it follows from the foregoing that the provisions of paragraph 4 of article 60 of the Civil Code relating to the deduction at source of twenty percent (20%) on sums paid retroactively by virtue of the law, from a court decision or collective agreement, refer to income from work and pensions in accordance with Article 12 of the Civil Code. On the other hand, the above provisions do not apply to sums paid after the death to the heirs of the insured because these, as part of the inherited estate, do not constitute income, but are only taxable. in the context of an inheritance in accordance with the relevant provisions, in which the rightful claimants-heirs must file a declaration of inheritance rights.

8. In order to reimburse the aforementioned tax withheld unnecessarily, and for reasons of good administration, the heirs must deposit, in accordance with c of paragraph 1 of article 1 of decree A.1042/2023 of the Governor of AADE, an amended tax return of income for the tax year for which they received the corresponding amounts to the competent DOY, indicating in the codes 611-612 (“Taxes for which there is no electronic information “) of the personal income tax declaration (form E1) the amount of the tax that has been withheld from the sums received from EFKA The entry of the above codes will be made on the basis of the corresponding certificate of withholding tax granted to them by the competent department of EFKA, which must be presented to the competent DOY.

Also, the total amount of money as part of the inherited property, if not already listed, is filled in codes 781-782, as it is not within the conceptual scope of any income category. Said corrective statements will be received without penalty in accordance with the last paragraph of paragraph 2 of Article 54 KFD (Law 4987/2022), applying in any case the provisions of Article 19 of this code.

The competent DOY, after carrying out a check to establish that the above tax has not already been refunded or charged in the declaration of the heir, will proceed to the liquidation of the rectifying declaration presented, so that the withholding tax can be triggered.

See the decision in the tax file of the hub

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