Stellina Mandalou, LL,
Abstract: A particularly common practice of the tax administration, in the event of the death of a taxpayer, who had debts to the State, is the sending to his relatives who appear not to have renounced his inheritance in due time, a notice for the payment by them of the said debts, the so-called "individual notice of payment - default", due to their wrongly considering them as his heirs. However, in practice it is possible that the persons concerned may not have renounced the inheritance, not because they implicitly accepted it, but either because they had not been aware of the death of the deceased and of their call to the inheritance in general, or because they had not been informed of the relevant legal provisions of our Civil Code (e.g. the existence of a time limit for renunciation and the importance of its unfulfilled expiry). This article therefore examines the means of defence of the addressee of the document in question, with a view to protecting his property from the enforcement which the State may bring against him in order to satisfy the claims in question.
As is clear from Article 1710 of our Civil Code (hereinafter the CC), the transfer of the heir's property to his heirs includes all of his (heir's) legal relations and, therefore, both the assets and liabilities of his property. In other words, not only the deceased's assets are inherited, but also his debts and liabilities (CC 1901).
The time limit for disclaiming the inheritance is in principle four (4) months from the time the heir became aware of the induction, i.e. the death of the deceased, and the reason for it (CC 1847), i.e. intestate or testamentary succession (or a combination thereof). If this time limit expires without action, the heir is deemed to have accepted the inheritance (CC 1850(b) - the so-called 'fictitious' acceptance of the inheritance).
Given the above provisions of our Inheritance Law, in practice, it is often the case that the State sends notices to relatives of the deceased for the repayment of their debts, who, however, were not aware of their summons to the inheritance or were not informed of the above legal provisions in order to renounce it in time.
These notices are entitled "Individual Notice of Payment - Defaulter", are sent by the tax office to which the deceased belonged and invite the recipient within 30 days of receipt either to pay the listed debts (which are listed in a table) or to settle them, otherwise the tax administration may proceed to take coercive measures for their collection (e.g., seizure).
This article therefore attempts to outline the possibilities for the recipient of the individual notice to protect his property against enforcement by the State. The remedy provided for the annulment of the individual notice (when it concerns debts arising from administrative disputes, such as taxes, administrative fines, etc.) is that of an opposition (under Article 217 of the Code of Administrative Procedure, hereinafter 'the Code'), the possible grounds for which are set out below.
2. The timely renunciation of the inheritance due to ignorance of the induction and the reason for the
As mentioned above, the time limit for renunciation of the inheritance starts to run from the moment the heir learns of the induction and the reason for it. Knowledge of the induction is the knowledge of the heir of the cause that initiated it, i.e. the death of the deceased, while knowledge of the reason for the induction is the knowledge of his/her call to the inheritance by will or by law (ex officio - in the absence of a will or in the case where the will does not leave the entire estate of the deceased). Thus, in the event that the heir is unaware of even one of the above facts, the time limit for disclaiming the inheritance does not begin.
In practice, therefore, the heir's knowledge will most certainly exist upon service on him/her of the individual notice of payment - arrears from the competent tax office, since the latter calls upon him/her to pay the deceased's debts. Consequently, upon receipt of the individual notice, the recipient must act immediately, since the latter marks the start of two deadlines: on the one hand, the - in principle - four-month deadline for submitting a declaration of renunciation of the inheritance (CC 1847) and, on the other hand, the three-and-a-half-day deadline for lodging an appeal for annulment of the individual notice before the ordinary administrative courts (220 CCC and subject to Article 5(5)(a) of the Code of Civil Procedure). 5 of the Code of Fiscal Procedure, hereinafter referred to as the "Code of Fiscal Procedure").
In his appeal, the objector may rely on the fact that he had given notice of the renunciation of the inheritance within the time limit (the starting point of the time limit being the date of service of the individual notice, due to his prior ignorance of the deduction and the reason for it) and, consequently, that he is not liable for the debts of the inheritance, since he never became an heir. Therefore, before lodging an objection, the heir should hasten to make a declaration of renunciation of the inheritance before the competent court of peace (pursuant to Article 1847 CC in conjunction with Article 810 CCC), so that he can raise the ground of objection under discussion.
For example, if the individual notice is served on 05.09.2023, the addressee of the notice must contest it by filing a statement of opposition within 30 days, i.e. by 05.10.2023. From the same date (05.09.2023), the -in principle- four-month period for renunciation of the inheritance starts at the same time, i.e. until 05.01.2024. However, the recipient of the individual notice should not exhaust this second period, on the contrary, he/she should renounce the inheritance before exercising his/her objection, so that he/she can then contest the debt, arguing that he/she is not an heir and therefore not liable for the debts of the inheritance.
According to the relevant case-law of the administrative courts, the following are indications of the opponent's ignorance of the claim and the reason for it (and, consequently, of the Court's finding that the waiver of the inheritance was made in good time and that he is therefore not liable for the debts of the estate):
(a) the distant distance of residence between the opposing party and the heir (see D.C.J.P. 1075/2022, D.C.J.P. 2251/2022, D.C.J.P. 946/2022), while, on the contrary, the proximity of the areas where the deceased and the opposing party resided is not sufficient to establish positive knowledge of the induction and the reason for it by the latter (see D.C.J.P. 1915/2020, etc.).
b) the fact that the evidence in the case file does not show any involvement of the objector in the inheritance (cf. CfPir 1075/2022, CfPir 2251/2022, CfPir 946/2022, CfThess 1915/2020, etc.), such as, for example, the declaration of inheritance tax, involvement in the operation of a company, the filing of an application for a certificate of inheritance, the sale of an element of the inheritance, etc.
(c) the fact that the State was unable to prove positive knowledge of the induction by the objector at any point in time prior to the service of the individual notice (cf. ICJ 367/2021, ICTR 678/2020, ICTR 1284/2020, ICTR 1238/2019, ICTR 3258/2016, etc.).
d) the non-maintenance of contacts between the opposing party and the deceased, as evidenced by empirical evidence (i.e. witnesses, affidavits - cf. ICFPir 1075/2022, ICFPir 1284/2020, ICFPir 1238/2019, etc.).
e) the particularly high amount that the objector was required to pay, combined with his lack of income and the very serious health problems he was facing, so that according to the lessons of common experience, if he had known of the fact of the death of the deceased, he would have immediately arranged for the submission of a declaration of renunciation of his estate in order to defend his interests (see IPEIR 3258/2016, etc.).
Besides, as is consistently accepted in case law. The sole fact that the heirs' (the heirs') relationship with the deceased and his family does not prove, on the other hand, that they were directly informed of the legal and factual conditions for the induction of the inheritance [...]" (see Cf. Cf. 946/2022, Cf. 1041/2022, Cf. 1915/2020, etc.) (see Cf. 1915/2020, etc.) (see Cf. 946/2022, Cf. 1041/2022, Cf. 1915/2020).
3. Annulment of the fictitious acceptance of the inheritance due to material error
In any case, even if it is held that a fictitious acceptance of the inheritance has taken place, the latter may be challenged by the heir on the grounds of an error, which must relate to a point so essential to the acceptance of the inheritance that if the heir had known the true situation with regard to that point, he would not have allowed the time limit for renunciation to expire. It is accepted by the administrative courts that this error may also be due to ignorance or incorrect knowledge of the aforementioned legal provisions on the acceptance of the inheritance and, in particular: a) the system of inheritance acquisition under the Civil Code, which occurs immediately after the death of the deceased, and b) the existence of the time limit under Article 1847 CC for renunciation or the legal significance, under Article 1850 CC, of the expiry of that time limit.
It should be noted that, as is accepted in the relevant case-law, the opposing party is not required to bring a separate action before the civil courts to annul the fictitious acceptance of the inheritance on the ground of error, but that issue may be dealt with in passing by the administrative courts in the form of an objection against the creditor of the inheritance and, by extension, an objection to the enforcement proceedings brought by that creditor (and in this case by the State) against the heir.
As it was therefore held, by virtue of the decision of the Athens Administrative Court of Appeal No 3101/2010: "[... However, the fact that the respondent did not know or knew incorrectly the legal provisions on the acceptance and renunciation of inheritance, which can be inferred both from her claim in this regard in her opposition and from the fact that she had not done anything about her husband's inheritance (she had not accepted and renounced it), constitutes a material error which renders the acceptance of the inheritance, resulting from her failure to observe the time-limit for renunciation, null and void, since she was unaware of the legal significance of the fact that that time-limit had not expired. In the light of the foregoing, and in the light of the considerations set out in the main judgment, the Court finds that the declaration of renunciation submitted on 18 May 2007 is lawful, with the result that the defendant, who never became the heir of her deceased husband, is not liable for the debts of the estate [...] with her personal assets.
4. Shortcomings in the content of the individual notice
It is also possible to annul the individual notice by invoking formal defects in the content of the individual notice. Of course, in order for the relevant ground of opposition to succeed, it must be sufficiently established that the alleged defect in the individual notification has caused the addressee procedural damage which cannot be remedied in any other way than by cancelling the individual notification (for example, on the grounds that, because of the ambiguity caused, the opposing party was unable to verify the correctness of the debt to which it was accused).
First of all, it should be noted that each individual notice must contain the information listed in Article 47 of the VAT Code. Failure to include any of these elements renders the latter null and void, subject to the above-mentioned requirement of procedural prejudice to the opposing party.
In particular, however, with regard to the individual notice sent to the heirs of the deceased public debtor, the latter, in addition to the above-mentioned elements, must necessarily include a calculation of the amount due in proportion to their share of the inheritance, since only in this way can the person of the debtor and the amount of the obligation be adequately determined (cf. CfAs 1734/2014, 3397/2013, CfAs 179/1977, 1014/1983, 1779/1988, 412/1988, CfAs 3101/2010, etc.). Otherwise, the individual notice will be invalid, as the administrative courts cannot first determine the obligors and the amount of their obligation, but are obliged to cancel and refer the case to the competent administrative authority.
This was recently held by the Court of First Instance in Case No. 424/2022 decision of the Administrative Court of Appeal of Piraeus, annulling the relevant individual notice on the following grounds: "[...] Having examined the ground of opposition relating to the failure to apportion the debts in question in proportion to the inheritance share of each of the opponents, the Court, in view of the fact that, in accordance with what has been accepted in paragraph 5, the individual notice should, under penalty of nullity, specify the amount due from each heir in proportion to his or her inheritance share, taking into account that in .../12. 3.2015 individual notice of the Director of the Regional CEMO of Piraeus does not specify the amount due from each of the heirs of ..., considers that this reason is well-founded and that the individual notice is invalid [...]'. The same judgment was also made in the judgment of the Athens Administrative Court of First Instance No 15304/2020.
Indeed, according to the decision of the Athens Administrative Court of Appeal No 2502/2014, this obligation of the tax authority is not negated by the fact that the persons of the heirs and the percentage by which they are liable for the obligations of the estate are directly determined by law.
5. Possibility of suspending enforcement until the publication of the final decision on the opposition
It should be noted that, in order to provide the alleged heir with the fullest protection against the forced execution that the State may bring against him, it is considered necessary to follow up the opposition lodged by the heir as described above by filing an application for suspension of the execution of the individual notice in question (pursuant to Article 228(1)(b) of the Code of Civil Procedure).
The purpose of that application is to suspend the enforcement measures challenged in the notice of opposition until a final decision has been given on the application. In other words, this procedure effectively 'freezes' the State's ability to take enforcement measures until the dispute is finally resolved by the competent court. In fact, this application may also include a request for the granting of a temporary injunction to suspend the enforcement measures until a decision on the application for suspension is issued (Article 228(2) in conjunction with Article 204(3) of the Code of Civil Procedure).
The reason for the requested suspension may be the irreparable material damage of the applicant - due to the administrative enforcement -, i.e. the damage which, due to its size, in combination with the applicant's general financial situation and its specific circumstances, may prove to be destructive or particularly burdensome for the applicant (CCC 334/2007). In addition, the suspension may be granted by the Court of Justice on the basis of the manifest ground of the opposition, which will exist in particular where it is based on settled case-law or on the case-law of the Plenary Session of the Council of State (OLSC 496/2011).
By way of illustration, in the recent judgment No 30/2022 of the Administrative Court of First Instance of Larissa (Suspension Division) it was held that: "[... 30.30.2009, the Court of Justice of the European Communities ruled that the failure to determine the amount due from each of the heirs in proportion to their share of the inheritance renders the individual notices invalid, in accordance with the considerations set out in the main part of this judgment, the Court finds that the application, which is still pending, is manifestly well founded and that there is therefore a legitimate ground for granting a stay of enforcement under Article 202(1)(b) of the Rules of Procedure. 1 of the Code of Administrative Procedure[...]".
6. In lieu of epilogue
It follows from the above that the law provides the recipient of the individual notice with all the necessary tools to defend himself against the State, either by challenging the individual notice on its merits, proving that he himself is not liable for the debts of the estate, or by pleading formal defects in the notice, provided that he is subject to procedural prejudice. In any case, however, it is important that the above steps are properly coordinated in order to achieve both the full discharge of the (alleged) debtor from the deceased's debts and the full protection of his movable and immovable property from the possible acceleration of enforcement by the State.