More specifically, whereas in principle civil and commercial written agreements are subject to a proportional stamp duty of 2.4%, it is important to state that for the purposes of avoiding double taxation, the legislator stipulated that if a main agreement – transaction from which the initial claims or liabilities arise, was subject to the appropriate stamp duty (proportional or fixed) or else VAT, then the subsequent contract, or agreement is exempted from stamp duty or VAT regime (see Article 19 para. 9 of the Law 1882/1990 and the explanatory notes provided by circular POL. 1063/1990).
In view of the above, it is important to determine whether an agreement is designated as main agreement or subsequent agreement, according to its nature. Commercial agreements such as Offset agreement, Debt recognition as well as debt waiver contracts etc. are designated as subsequent agreements. In this case, according to the law if the prior main agreement from which the subsequent agreements depend on have previously been subject to or legally exempted from, the appropriate stamp duty or arise from transactions that have been subject to VAT (e.g., commercial transactions such as the purchase of goods or services), then the subsequent agreements will not be burdened with stamp duty.
Contrary, if an agreement is designated by the competent tax Authorities, as independent, main agreement, it will be subject to stamp duty, regardless of whether the assets and liabilities concerning, derive from transactions that, have previously been subject to stamp duty or have been exempted from stamp duty or have been subject to the VAT regime. That is the case of settlement agreements.
As clear as it may seem, in practice the above legal conclusions are rather difficult to apply, due to the fact that the determination of the nature of an agreement and, thus, the designation of it as main or subsequent, is not always definite or absolute and might be subject to appeal by the competent tax authorities.
That was the case recently, in the decision of the Directorate of the Dispute Resolution of the Tax Authorities in Greece, from 12.01.2023, in which initially, the Directorate concluded that the agreement was a waiver of debt (subsequent agreement) and, thus, exempted from stamp duty, given that the appropriate proportional stamp duty was paid when the debt was incorporated. However, the Directore annulled its decision and finally concluded that the agreement was indeed a settlement agreement (main) and, thus, a stamp duty needed to be paid, burdened also with the additional fines.
To sum up, the ambiguity of the legislative framework, as well as the existence of various agreement types, creates uncertainty as to the assessment of the obligation of payment of stamp duty or not. The proper evaluation of the type of the agreement by legal experts, along with the frequent review and examination of legal developments and decisions issued by the competent tax authorities, might be the key for each company to avoid as much as possible being finally burdened with unfortunate and not budgeted payment of taxes and stamp duties.