Following an audit the tax authorities issued a adjustment to BMW Hellas S.A. related to its pricing of imported cars.
The adjustment was later annulled by the Administrative Court of Appeal. Not satisfied with this result, the tax authorities then filed an appeal with the Supreme Administrative Court.
Judgement of the Supreme Administrative Court
The Supreme Court dismissed the appeal of tax authorities and upheld the decision of the Administrative Court of Appeal.
“Because, as is clear from the above-mentioned provision of Article 137.C(C)(2) of the Customs Code, the customs authorities are not in breach of their obligations under Article 137.C(2) of the Customs Code. 1 of Law No. 3583/2007, smuggling, when importing a vehicle into the country, occurs where the non-payment or reduced payment of the tax or duty provided for by law is the result of the declaration of false information or the falsification of the documents required for importation or the use of special devices. For the purposes of those provisions, any action which misleads the customs authorities as to the nature, extent and amount of the tax or duty liability constitutes a deception and, more generally, an act intended to avoid payment of the taxes and duties legally due. The importation of vehicles at wholesale selling prices which are lower than the wholesale selling prices at which similar imports have been made in the past, but which are in accordance with the manufacturer’s price list and on which the statutory taxes (and, where appropriate, duties) have been calculated and paid, does not therefore constitute a deception in that sense, irrespective of the business policy which dictated the reduction in wholesale prices and irrespective of whether that business policy was subsequently changed; nor do such imports subsequently acquire the character of a ploy because the retail price is not set in line with the reduced wholesale price and the benefit of the importer’s payment of a lower price is not passed on to consumption, but legally calculated, regardless of whether that non-passing on is compatible with the sound operation of trade. Consequently, in the circumstances of the case, the Administrative Court of Appeal rightly held that the mere reduction in the factory prices of the cars imported by the first respondent in 2011, 2012 and 2013, without, at the same time, any other misleading action on the part of the appellants to deceive the customs authorities during the customs clearance of the cars, did not constitute a case of a ploy within the meaning of Article 137 C(1)(b) of the Customs Code. 7 and 155(7). 2(m) of the National Customs Code and that, as a result, the objective element of smuggling was not established in this case, and that the claims to the contrary, given that the first respondent’s benefit from the reduction in its tax burden on importation of the cars imported at a reduced wholesale price was not passed on to the retail selling prices of the cars imported at a reduced wholesale price, must be rejected as unfounded.”Greece vs BMW 385-2020