Tax Cases

2022-02-19T10:35:25+00:00 17 March 2021|

TO CONTACT NOW 0 541 485 92 48

LOGIN

Lawsuits arising from Tax Law; It can be divided into cases heard in tax courts and cases heard in criminal courts. Cases heard in Criminal Courts arise from tax evasion crimes. In this article, as of the subject; we will touch on information that will be useful in practice regarding the cases heard in tax courts.

PREPARING THE CASE

Before filing the case, it is of great importance to get consultancy services from a financial advisor and a lawyer who is interested in this field while examining and calculating the books and documents. The tax base is determined by the taxpayer’s tax return arrangement. E.g; If the work is done but not invoiced, the tax base difference arises. In the event that this base difference is not paid, a double tax loss sanction is applied and a special irregularity penalty is imposed for the documents that are not issued. Likewise, for example; In case of issuing a false invoice or an invoice whose content is misleading, which is known as a nylon invoice among the people, the tax loss penalty is applied as three times and the irregularity penalty is imposed. Another sanction of these acts is to file a criminal case against the taxpayer by preparing a tax crime report. The taxpayer can request pre-assessment settlement before the penalty is imposed. At this stage, a pre-assessment inspection report is prepared. This report is notified to the taxpayer. If a compromise is reached on this report, no tax penalty notice is issued. If no agreement is reached, the taxpayer must either file a lawsuit on time or pay the tax debt. However, it should be emphasized here that in cases where the tax loss penalties are applied one fold, the taxpayer; While the taxpayer can benefit from favorable transactions such as reconciliation and restructuring, in cases where tax loss penalties are applied three times; He cannot benefit from the laws of conciliation, restructuring and amnesty, except that he faces criminal proceedings. Here it is necessary to mention a very controversial issue. “Non bis in idem”, one of the general norms of law; means that two separate punishments arising from the same act are prohibited. Unfortunately, there are practices that contradict this principle in our law. E.g; The Finnish court decision, which imposed similar sanctions with Turkey, was examined by the European Court of Human Rights and ruled that the non bis in idem rule was violated.

CASE

Basically, in cases originating from Tax Law; 213 p. The Tax Procedure Law and the Administrative Procedure Law No. 2577 are used. If there is no provision in the Tax Procedure Law, it is necessary to look at the Administrative Procedure Law. Case; filed against tax penalty notice. Since it is not certain, a lawsuit cannot be filed against the tax inspection report. In addition to what should be included in the lawsuit petition, which is also known from the HMK, the date of the written notification should also be written in the lawsuit petition. The taxpayer is not notified of special procedures, also known as blacklisting, in the practice that will put the taxpayer in trouble in his commercial life. In such cases, the taxpayer must file a lawsuit within 30 days from the date of learning the written notification. As it is known, written procedure is applied in tax courts. After the Tax Court completes the first examination, it notifies the lawsuit petition to the tax office that established the administrative action. Thus, the petition phase begins. The petitions phase ends when the tax office submits a defense petition, responds to the defense, and completes the second defense stages. With the same lawsuit petition, a lawsuit is filed only in the same year and for the same tax type. E.g; VAT of 2020 and VAT of 2021 cannot be seen in the same case. As a rule, although the decision is made on the basis of the file, a hearing must be held upon request. The parties must be notified of the hearing date 30 days before the hearing is held. If the parties do not come, the hearing will not be opened. The incoming party is heard. It is possible to expand the claims due to the application of the ex officio investigation principle in the proceedings in the Tax Courts. Since most of the judges in tax courts are not lawyers and are technically experts on the subject, unlike the practices in other jurisdictions, experts are not consulted as a rule. If a hearing is held, the tax court must make a decision within 15 days due to the Law.

Finally, 306 p. It is necessary to mention the general notification of VUK. The general statement in question; It attaches great importance to the evaluations of tax inspectors. E.g; tax inspector; If the taxpayer is convinced that he created the fake invoice or the invoice with misleading content unknowingly, he may decide to impose a double tax penalty. This paves the way for the implementation of provisions such as conciliation and amnesty. However, if the inspector believes that the taxpayer knowingly used fake invoices, he may decide to impose a three-fold tax loss penalty. In this case, the taxpayer will be faced with criminal proceedings and will not be able to benefit from the provisions of conciliation and amnesty. As it can be seen, the said general communiqué includes technically unlawful matters.

Lawsuit filed against tax penalty notice;

Tax penalty notice is given to the taxpayer via e-notification attached to the Revenue Administration Tax Office. If the settlement method is applied after the assessment and the tax penalty is paid together with the interest within 30 days, the lawsuit is closed. If no agreement is reached, a lawsuit should be filed within 15 days. In this way, a stay of execution cannot be requested in cases filed against tax penalty notice. Collection works are automatically stopped due to the law.

Action against the payment order;

Here, in addition to the two basic laws mentioned above, the provisions of the Law on the Collection of Public Claims come into play. A lawsuit must be filed with the tax court in the place where the tax office is located, within 15 days from the notification of the payment order to the taxpayer. Unlike the lawsuit filed against tax penalty notice; collections do not stop automatically. A stay of execution should be requested. According to Article 58 of the AATUHK; In the lawsuit filed, it is necessary to examine the source of the tax by the court.

The taxpayer’s filing a lawsuit by paying the tax debt with reservation;

It is possible for the taxpayer to file this lawsuit if he pays his tax debt by not giving up his rights of lawsuit and objection. A lawsuit must be filed within 30 days for the suspension, cancellation and return of the transaction. According to article 27 of IYUK; A stay of execution may be requested for statements made with reservations. Three points can be raised in this case. taxpayer; may claim that the debt is not owed, partially paid or expired. In case the tax court decides to reject the lawsuit at the end of the lawsuit, 10 percent of the lawsuit value is charged to the taxpayer as an increment for being wrong.

Lawsuits that can be filed due to tax errors even though the filing period has passed;

Complaints can be used retrospectively to correct tax errors within 5 years. As a rule, the taxpayer cannot file a lawsuit based on the bases he has declared, but erroneous transactions are excluded. However, this way is applied in a very limited way with the jurisprudence of the Judiciary. In case of errors such as unfairly overcharged tax collection or payment, calculation errors, and double taxation, a correction may be requested from the relevant officer. In case the administration rejects the request directly or tacitly rejects it by keeping silent for 60 days; A complaint should be made to the Revenue Administration. If a lawsuit is filed directly, the tax court decides to send the request to the Revenue Administration in order to prevent the infringement of the administrative authority in the first examination. If it is the Municipality that refuses to correct the erroneous taxation process, an application should be made to the Mayor’s Office as a higher authority.

APPEAL/ APPEAL PHASE

Decisions of tax courts are examined in three stages if they exceed certain monetary limits. Decisions of the first instance tax court in cases with a monetary limit of less than 7.000 TL are final. If the monetary limit exceeds 192 thousand TL for 2021 in the decisions given by the Regional Administrative Court, an appeal can be made to the Council of State. It should be noted here that; If the Council of State reverses the decision, the case file will go to the Regional Administrative Court, not the local court. Another important issue is that, pursuant to Article 125/4 of the Constitution, the Council of State cannot audit for expediency. Only the Council of State can decide whether the transaction is legal or not. of the Council of State; The administration does not have the power to remove the discretionary power or to take the place of the administration directly.

Av. Şirin GÜNGÖR

TO CONTACT NOW 0 541 485 92 48

Hemen Arayın
Whatsapp