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GÖZDE SARUHAN BERK Partner, Lawyer-Arbitrager Tax Disputes and Corporate |
PINAR SOLYALI GÖKALP Partner, ADIT-CPA International Tax and Transfer |
ABSTRACT
Taxpayer and tax responsible party are two basic concepts related to tax law. Although these terms are defined as two different concepts from the viewpoint of Tax Procedure Law No. 213, evaluations of these two terms bring the concept of tax responsible party closer to the concept of taxpayer.
The evaluation of these two concepts by courts and the Tax Administration, both in litigation process and in administrative remedies, has changed over the years and decisions have been made against and in favour of the taxpayer.
In this study, we will be discussing how the concept of taxpayer and tax responsible party, the most basic concepts of tax procedure law, are handled both before the Courts and before the Tax Administration, with precedent decisions and examples from practice.
Keywords: Tax Responsible Party, Taxpayer, Capacity to File a Lawsuit, Error Correction, Legal Interest
INTRODUCTION
Pursuant to Article 8 of the Tax Procedure Law (“TPL”) No. 213, titled "Taxpayer and tax responsible party", "taxpayer" and "tax responsible party" are defined as two different concepts. Pursuant to the said article regulation1,
Although taxpayer and tax responsible party are defined as two different concepts in the regulation of the Article, "The term "taxpayer" in the following articles of this law also includes tax responsible parties." It has been indicated that taxpayer statements in the Articles of the TPL would also be valid for the tax responsible parties.
On the other hand, the provision of Paragraph 1 of Article 377 of the TPL titled "Capacity to File a Lawsuit in the Tax Court" regarding the capacity to file a lawsuit in the tax jurisdiction is as follows:
“Taxpayers and those who have been fined can file a lawsuit in the Tax Court against the taxes are levied and fines are imposed.”
Likewise, pursuant to the provision in Article 122 of the TPL titled "Correction Request " regarding the request for correction of tax errors, "Taxpayers may request the correction of errors in tax transactions in writing from the Tax Office."
As a result of the evaluation of the aforementioned Article regulations together, although Articles 122 and 377 of the TPL seem to regulate only the taxpayers and those who have been fined, using legal remedies and/or administrative remedies when the aforementioned Article regulation is considered together with the 8/4 provision of the TPL, it can be stated that taxpayers also have the capacity to file a lawsuit and apply for correction given to taxpayers and to those who have been penalized.2
When we look at the recent decisions of the Council of State, although it is stated that the Council of State has moved towards a different view from its previous decisions and that the taxpayer statements in the articles of the TPL in the criteria regarding the ability to file a lawsuit for tax responsible parties would also be valid for those responsible for taxation, we observe that it begins to take contrary decisions based on the justification that "there is no directly violated interest".
The fact that decisions are made in different directions, especially in the case of income tax refund issues, brings to our mind the questions of whether there is a right turn towards a Treasury approach to decisions.
In this article, the issue of the capacity of tax responsible parties to file lawsuits and request corrections will be discussed within the framework of the old and new jurisprudence of the Council of State and administrative practices.
When we look at the decisions of the Council of State that the taxpayers do not have the capacity to file a lawsuit, we observe that it has made decisions against it for different reasons. As an example of these reasons, it shows the problems that can be experienced in practice if the tax responsible party who files a lawsuit wins the case and the person who is the taxpayer files a lawsuit on the same issue and gets a favourable result, while another justification is that the tax responsible party completes his duty by paying the tax on behalf of the taxpayer and there is no infringed interest when a dispute arises.
In the following decisions, we observe that these justifications were adopted by the Council of State in terms of different disputes.
“…From the evaluation of the aforementioned legislation provisions together, it is clear that; those who are addressed to the tax office in terms of paying the tax and fulfilling other duties are obliged even if the economic burden of a tax is intended to be borne by different persons (tax bearer) from the person who pays it, therefore, there is a legal relationship arising from the law in the obligation; as stated in Article 8/3 of the Tax Procedure Law, special contracts regarding obligation do not bind the tax administration, except for the exceptions stipulated in the tax laws; although the tax responsible party has the opportunity to transfer the tax to others through reflection, the taxpayer is the main tax debtor, therefore, the tax responsible party will be the interlocutor against the tax office in order to deduct someone else's tax and pay it to the tax office; in this sense, it is clear that the "intermediary payer", who is obliged to deduct the tax calculated from the payments made by the tax responsible party to the main taxpayer and deposit it to the creditor's tax office, will be considered as "intermediary payer". On the other hand, with the relevant provisions of the Income Tax Law and the Tax Procedure Law, the sanction of tax responsible parties who have been given certain duties for not performing these duties properly, and the rights of claim and file a lawsuit that those responsible for this can apply, are included in the Article 378 of the Tax Procedure Law, which introduces a special judicial procedure rule. According to this; although it is possible to demand compensation for the damage incurred and file a lawsuit against the tax responsible party in accordance with the provisions of private law, based on the "defect liability" due to the taxes that have been deducted or incorrectly deducted; opposing the Article 2 of the Administrative-Judiciary Procedure Law, which states that those who are authorized to file a lawsuit for tax cases should have the capacity to act subjectively, and filing an annulment action against an administrative act is conditional on the violation of interest; in order for an administrative lawsuit to be filed, the direct interest of the tax responsible party must have been violated.
…. In the incident, the employee is the taxpayer of the tax paid to the tax office by withholding on the service award payment made to the employee of the company in the capacity of tax responsible party of the plaintiff company, which is the employer. As such, in accordance with the provisions of the tax error, the right to rectify, file complaints and, to receive a refund if there is an overpaid tax, belongs to the taxpayer, who is an employee whose interests are violated by deduction from the payment made to him. Considering that the plaintiff company, the employer, has the obligation to deduct the tax calculated from the payment made only to the principal taxpayer and deposit it to the creditor tax office on his behalf and it is not possible to talk about a tax it has paid on its own behalf since it has been concluded that the employer company, in the position of taxpayer, does not have a directly violated interest and therefore does not have the capacity to file a lawsuit, it is seen that the appealed decision to the contrary is not in accordance with the law…”
“…Article 11 of the Tax Procedure Law No. 213, titled "Responsibility of Taxpayers", stipulates that those who are obliged to withhold tax from their payments made or to be made are responsible for the full deduction and payment of the tax and fulfilling other related duties. The taxpayer is the main debtor of the tax, and the tax responsible party is the person who is dealing with the creditor tax office. Therefore, the tax responsible party does not have a tax debt and collects the tax paid from the main taxpayer.
The plaintiff company, in its capacity as responsible, made deductions from the compensation paid to the teachers and deposited it to the tax office. In this respect, the duty of the tax responsible party, which she has to do by law, has come to an end. Teachers who have an interest in filing this lawsuit can file a lawsuit with the allegation that the tax paid is against the law and that the tax should be cancelled and refunded. Otherwise, there may be some difficulties in returning the paid tax. Because the tax responsible party deducts the paid tax from the main taxpayer and deposits it to the tax office. In case the court decision is in favour, the refunded taxes will remain under the responsibility of the tax responsible party. Undoubtedly, there are cases where it is possible for tax responsible parties to create conflicts. For example, in such a dispute, if an assessment is made on behalf of the plaintiff company due to the fact that income tax is not deducted from the education and training compensation, this assessment may be the subject of a lawsuit. In this respect, there was no illegality in the court decision rejecting the case in terms of competence…”
Considering the decisions made about whether the tax responsible party has the capacity to file a lawsuit, in Article 8 of the TPL, the taxpayer, is defined as natural and legal person who has a tax debt according to tax laws, on the other hand, the tax responsible party is defined as the person who is the addressee against the creditor tax office in terms of paying the tax, and since the term taxpayer in other articles of the TPL is also valid for taxpayers, it is seen that the decision was made in favour of it.
As a matter of fact, in the decisions of the Council of State on the subject, it has been accepted that taxpayers also have the capacity to file a lawsuit.
“…In tax law, the capacity to file a lawsuit is subject to a special and different regulation. According to the provisions of the Tax Procedure Law, in order to be able to file a lawsuit in the Tax Courts, the tax must be levied, the penalty must be imposed, the amendment and valuation commission decisions must have been notified, the taxpayers must have paid the taxes collected through withholding and the tax must have been deducted by the payer. Taxpayers and those who have been fined can file a lawsuit claiming that these transactions are unlawful. Therefore, considering that the taxpayer is defined as the person who has the duty to pay tax debt according to the tax laws and that the term taxpayer includes the tax responsible party who is the addressee of tax office in terms of paying the tax, it is concluded that the tax responsible party has the capacity to file a lawsuit like a taxpayer.
In this case, since the plaintiff company has the capacity to file a lawsuit, the decision of the Tax Court was not found to be in compliance with the law.
On the other hand, it is necessary to investigate whether K1, K2, K3 and K4, whose names have been deducted by the plaintiff company, have filed a lawsuit regarding the same period, and a decision should be made by evaluating the outcome of these lawsuits in the decision to be made on the merits of the business…”
“...In tax law, the capacity to file a lawsuit is subject to a special and different regulation. The Tax Procedure Law applies to taxes, duties and charges included in the general budget, and taxes, duties, and charges belonging to special provincial administrations and municipalities. According to the provisions of this Law, in order for a lawsuit to be filed in the Tax Courts, the tax must be levied, the penalty must be imposed, the amendment and appraisal commission decisions must be notified, the payment must have been made to the beneficiaries in the taxes collected through withholding, and the tax must have been deducted by the payer. Taxpayers and those who have been fined can file a lawsuit claiming that these transactions are unlawful. Therefore, considering that the taxpayer is defined as the person who has the duty to pay tax debt according to the tax laws and that the term taxpayer includes the tax responsible party who is the addressee of the tax office in terms of paying the tax, it is concluded that the tax responsible party has the capacity to file a lawsuit just like the taxpayers. On the other hand, in accordance with Article 94 of the Income Tax Law No. 193, those who deduct taxes from payments made to employees are the tax responsible parties, and those who has been taxed from the salaries are the taxpayers. The tax responsible party has to declare and pay the tax with a tax declaration. In other words, it is clear that if the tax deducted is declared and not paid, it is clear that the tax responsible party will be followed, and if the record is made by the responsible person in the declaration without prejudice, this record is not accepted, and the accrued tax may be subject to a tax lawsuit.
In this case, in accordance with Article 94 of the Income Tax Law No. 193, the plaintiff company has the responsibility to deduct the tax at the rate stipulated in the law from the wages of its employees, declare it with a tax declaration and pay it. With the decision of the Constitutional Court No. E:2006/95, and K:2009/144, dated 15.10.2009 and published in the Official Gazette dated 8.1.2010, since then, it has been decided that the phrase "excess of 35%" in Article 103 of the Income Tax Law is unconstitutional in terms of wage incomes and can be annulled, in the lawsuit filed with the request for the refund of the amount paid by removing the income (withholding tax) accrued on the declaration she made with reservation, there is no lawfulness in the decision of the Tax Court given to the contrary, since she has the capacity to file a lawsuit.3
“...Considering that the taxpayer is defined as the person who has the duty to pay tax debt according to the tax laws and that the term taxpayer includes the tax responsible party who is the addressee of the creditor tax office in terms of paying the tax, it is concluded that also the tax responsible party has the capacity to file a lawsuit just like the taxpayers.
On the other hand, in accordance with Article 94 of the Income Tax Law No. 193, those who deduct taxes from payments made to employees are the tax responsible parties, and those who has been taxed from salaries are taxpayers. The tax responsible party has to declare and pay the tax with a tax declaration. In other words, it is clear that if the tax deducted is declared and not paid, the tax responsible party will be followed, and if the record is made by the responsible person in the declaration without prejudice, this record is not accepted, and the accrued tax may be subject to a tax lawsuit. In this case, in accordance with Article 94 of the Income Tax Law No. 193, the plaintiff company has the responsibility to deduct the tax at the rate stipulated in the law from the wages of its employees and declare it with a tax declaration and pay it. With the decision of the Constitutional Court No. E:2006/95, and K:2009/144 ,dated 15.10.2009 and published in the Official Gazette dated 8.1.2010, since then, it has been decided that the phrase "excess of 35%" in Article 103 of the Income Tax Law is unconstitutional in terms of wage incomes and can be annulled, in the lawsuit filed with the request for the refund of the amount paid by removing the income (withholding tax) accrued on the declaration she made with reservation, there is no lawfulness in the decision of the Tax Court given to the contrary, since she has the capacity to file a lawsuit…”
“…In Article 11 of the Tax Procedure Law No. 213, it is stipulated that tax responsible parties who are obliged to withhold taxes from the payments they have made or would make, will be responsible for the full deduction and payment of the relevant tax and fulfilling other related duties. While the organizations and persons listed in Article 94 of the Income Tax Law No. 193 make these payments in cash or on account, the remuneration holders are obliged to withhold income taxes, and according to the first paragraph of Article 98, they are obliged to notify the tax office of the district where the accrual is made, with a tax declaration, until the evening of the twenty-third day of the following month.
In Article 8 of the Tax Procedure Law, the taxpayer is defined as a natural or legal person who has a tax debt according to the tax laws; on the other hand, the tax responsible party is defined as the person who is the addressee against the creditor tax office in terms of paying the tax, and it is stipulated that the term taxpayer in other articles of this Law is also valid for tax responsible party. In the first paragraph of Article 377, after it is stipulated that taxpayers and those who have been fined, can file a lawsuit in the tax court against the taxes levied and the fines imposed. In Article 378, it is stipulated that in order to file a lawsuit in the tax court, the tax must be levied, the penalty must be levied, and the tax holders must have paid the taxes collected through withholding and the tax must have been deducted by the payer.
Without prejudice to the cases referred to in the first paragraph of the same article in the Law No. 2577 and the Law on Civil Procedure, in the second paragraph of the Article 31 of the Administrative Procedure Law No. 2577, since it is foreseen to apply the provisions of the Tax Procedure Law in the resolution of tax disputes, capacity to file a lawsuit should be determined according to Article 377 of the Procedural Law.
It is understood from the regulation states that in Article 377 of the Tax Procedure Law, the right to file a lawsuit is not only granted to taxpayers and those who have been penalized, and that the term taxpayer mentioned in the other articles of this Law is also valid for tax responsible party in Article 8 of the same Law. For this reason, it is possible for taxpayers to file a lawsuit if the tax is accrued on the tax return and if they meet certain conditions imposing the tax against the taxes and penalties levied like the taxpayers, the penalty is imposed, the payment has been made to the claim holders in the taxes collected through withholding and the tax has been deducted by the payer and it has been accrued over the tax bases declared with reservation.
According to the above-mentioned provisions of the Tax Procedure Law, since the plaintiff has the authority to file a lawsuit against the tax that she withheld and declared with reservation, the tax court's insistence decision rejecting the case on the grounds that the tax responsible plaintiff does not have the capacity to file a lawsuit and pursuant to Article 15/1-b of the Law No. 2577 not considered appropriate.…”
“…In Article 8 of the Tax Procedure Law No. 213, the taxpayer is defined as the natural or legal person who owes tax according to tax laws, and the tax responsible party is defined as the person who is the addressee against the creditor tax office. In the last paragraph of the same article, it is stated that the term "taxpayer" in the following articles of this law also includes tax responsible party, and in Article 377 of the same Law, taxpayers and those who have been fined can file a lawsuit against the taxes levied and the penalties imposed in the tax court. In the Article 378, it is stipulated that in order to file a lawsuit in the tax court, the tax must be levied, the penalty must be imposed, the amendment and appraisal commissions' decisions must be notified, the payment must be made to the beneficiaries in the taxes collected through withholding, and the tax must be deducted by the taxpayer.
Taxpayers are held responsible for deducting the tax stipulated in the law from the payments made to the beneficiaries, declaring them with a concise declaration and paying them. It is clear that the case of not declaring or not paying the tax deducted will require the follow-up of the tax responsible party, and considering the above-mentioned provisions, it is possible to subject the tax assessment and accrual transactions based on the declaration to an administrative lawsuit if the taxpayer or the responsible person duly puts a reservation on the declaration.
Persons and organizations that have to withhold tax are specified in Article 94 of the Income Tax Law and Article 24 of the Corporate Tax Law. In the event that is the subject of the lawsuit, the plaintiff company, liable pursuant to the sub-clause (b-i) of the first paragraph of the Article 94 of the Income Tax Law, withheld tax from the dividend paid to the Savings Deposit Insurance Fund from its partners in the period of June 2003 and declared it with reservation. In order not to be penalized in the future, a lawsuit may be filed against the accrual by the plaintiff company, which has submitted its declaration with reservations. For this reason, while the decision should be made by examining the merits of the case, it was not found in accordance with the law in its rejection in terms of competence…”
Decision of the 4th Chamber of the Council of State No. E.1971/5552, and K.1972/141, dated 28.12.1972.
“…In Article 8 of the Tax Procedure Law No. 213, the tax responsible party is defined as the person who is the addressee of the creditor against the tax office in terms of paying the tax, and it is stated in the last paragraph of the same article that the term taxpayer includes the tax responsible party in the following articles of this law. and Article 24 of the Corporate Tax Law No. 5422 states that those who are obliged to withhold taxes through withholding will be considered as tax responsible. In this respect, it is necessary to understand that the term “taxpayers authorized to object”, as determined by Article 377 of the Tax Procedure Law No. 213, includes tax responsible parties as well. Since they have declared with disputed reservations, there is no accuracy in the decision made by mentioning material error in the event that is not related to Articles 116-126 of the Tax Procedure Law No. 213…”
One of the issues that came to the agenda with the beginning of the discussion of the capacity of tax responsible parties to file a lawsuit is whether tax responsible parties can apply for corrections for tax errors. Pursuant to Article 122 of the TPL, taxpayers may request the correction of errors in their tax treatment in writing from the tax office. As mentioned above, according to the provision that the term taxpayer would also apply to tax responsible parties there are many high court decisions that taxpayers can also request corrections in terms of the application of the TPL. In the decision of the 4th Chamber of the Council of State, dated 23.01.1986 and numbered E.1985/3253, K.1986/343, it was considered that an unfair deduction was made from the severance pay paid by the employer as a result of the employee's application to the Labour Court. It has been evaluated whether the employer has the right to demand correction in a situation where the excess deduction made by the employer is paid back to the employee in accordance with the decision of the Labour Court. In the decision given, it was stated that the employer requested a correction due to a decrease in her wealth, and the administrative actuation capacity of the tax responsible party was recognized.
“In line with this, in the event that Article 119/5 of the Tax Procedure Law, stipulating that tax errors can be revealed on the application of the tax responsible party, and Article 122, which stipulates that the taxpayer can request the correction of errors in tax treatment, in writing, are evaluated together with the above-mentioned Article 8, and it is understood that there is no clear provision preventing taxpayers from making a correction request.
In the event, based on the decision of the Labour Court, it is concluded that it would not be possible for the principal obligor to make a correction request, who compensates for the decrease in his property as a result of the previous taxation error by obtaining the same amount of money from the plaintiff Bank, which is in the position of tax responsible party, would not provide any benefit for himself, and that it is not possible to take an initiative in this direction since its purpose has been achieved. On the other hand, it is concluded that the claimant Bank has requested a correction due to a decrease in its own property, not the principal obligor. Considering that the taxpayer does not have the right of recourse due to the final judgment, it is concluded that there is no procedural and unlawful aspect in the request for correction due to the unjustified tax burden.”
Likewise, in the concrete case subject to the decision of the General Assembly of the Tax Case Chambers of the Council of State No. E.1995/194, and K.1997/188, dated 11.04.1997 and , although the plaintiff deducted 5% from the advance payment she made for the construction work, she calculated and paid this withholding as 15% in the declaration. Although 10% tax was not deducted from the remuneration, it was declared and paid incorrectly, and the tax office agreed with the taxpayer that there is no doubt about the error. However, the request for correction was rejected by the administration on the grounds that the tax responsible parties were not competent. In the decision given, it was concluded that the tax responsible parties can request a correction:
“In Article 121 of the Tax Procedure Law, it is regulated that the administration should correct the obvious and absolute tax errors ex officio. There is no doubt that 5% tax should be withheld from the advance payments made to the contractor. It is also clear that the accrual made on the declaration, which appears to have been deducted at the level of three times this rate, contains a clear and absolute error. While the tax administration should correct the accrual of October 1990 ex officio in accordance with Article 121 of the Tax Procedure Law and take action in line with the claimant's request, the issuance of a payment order on behalf of the Institution and the decision to reject the lawsuit filed against the payment order did not comply with the law.”
In the first example, the excess deduction made from the remuneration paid to the employee was returned to the employee in accordance with the Labour Court decision, and in the second example, the burden of the taxes in question remained with the tax responsible party, since the withholding tax was calculated at the rate of 15% on the declaration despite the deduction of 5% from the payment made to the contractor. In other words, in both examples above, the party whose assets decreased as a result of tax error is the tax responsible.
Although the above-mentioned judicial decisions do not refer to the condition of violation of interest, the General Communiqué of the Income Tax Law No. 261 sheds light on the approach of the administration by making this distinction. In the following communiqué published on the return of the withholdings made before 1/1/2004 in return for the rental of real estate belonging to fused foundations was presented as below;
“In line with this, it is necessary to apply in writing to the tax office where the concise declaration is submitted by the mentioned fused foundations, within the framework of the correction provisions of the Tax Procedure Law, until 7/7/2007 regarding the refund requests in question.
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However, in the lease agreement, if the tax to be deducted is undertaken by the tenant who makes the payment, in other words, if the fused foundation that gives the lease the real estate has received the net rent, the mentioned amount will be returned to the tenants because of the tax will be paid by calculating the gross amount and the mentioned tax deduction will be paid from the lessee's assets. For this reason, if the tax to be withheld is undertaken by the tenant who makes the payment, the correction petition bearing the joint signature of the fused foundation and the tenant must be submitted to the relevant tax office until 7/7/2007.”
Incorporating the above provisions, the ability to make corrections is determined according to whether the contract between the parties is understood as net or gross. While the withholding made in a clearly understood contract indicates a decrease in the tax responsible party's assets, in a grossly understood contract, there is a decrease in the taxpayer's assets. The result of this approach of the Communiqué is that the tax responsible party can apply for correction only if there is a decrease in the assets. Since there is a decrease in the assets of the responsible person in both judicial decisions, it can be said that this approach does not directly conflict with the decisions.
In our study, although the violation of interest is mentioned in the decisions regarding the tax responsible party's inability to file a lawsuit, which is included in the title of "I-Decisions of the Council of State Regarding the Lack of Capacity of the Tax Responsible Party", the issue of causing a decrease in the assets of the parties by tax deduction in accordance with the agreements between the parties, has not been examined. In other words, the aforementioned judicial decisions are in contradiction with the approach in the General Communique on Income Tax Law No. 261.
The following statements are included in the Ruling No. B.07.1.GİB.4.34.16.01-KVK 34-1970 on the subject of "Return of the Withholding Amounts Corresponding to the Rent Fees Paid as a Result of the Evacuation Case" issued by the Istanbul Tax Office on the subject, dated 03.11.2011.“The refund to be made due to the mentioned correction process has to be made to the owner of the remuneration upon the application of the owner of properties whose remuneration has been withheld and it is not possible to make the mentioned refund to your company that makes the tax deduction as responsible.”
Whether the tax responsible party requests a correction or not, and which party transfers the amount to be refunded as a result of the correction, both should be considered separately.4 Even if we assume for a moment that the above-mentioned judicial decisions imply that tax responsible parties can apply for correction regardless of the principle of infringement of interest, the refund resulting from the correction of the error upon the request of the tax responsible parties should be made to the right holders. A current revision application process has also been carried out in parallel with this approach. In the aforementioned case, the tax responsible party erroneously applied 20% withholding tax when making payments to a company residing in a country with which Turkey has concluded a double tax treaty for self-employment services performed entirely remotely. The contract was understood in gross terms, and the withholding tax overdue caused a decrease in the assets of the company residing abroad. Upon noticing the incident, the tax responsible person requested a correction to the tax office and this request was accepted by the tax office and the file started to be examined. Although the capacity of the tax responsible party for the correction request was accepted, a power of attorney was requested from the company residing abroad in order for the refund to be made to the tax responsible party, and it was stated that the refund would only be made with a document stating that the tax responsible party was authorized to collect on behalf of the company abroad. In the aforementioned event, the contract value was understood as gross.
The procedure to be followed in case the service fee is clearly understood is debatable. In cases where withholding is done unfairly according to the domestic legislation, most of the time, a resident company records its remuneration as net value in its accounts and fulfils its tax liability over the corporate tax rate in the relevant country. In this case, it cannot be mentioned that an income that is not obtained and never recorded by the foreign enterprise reduces its assets. In such cases, it is the tax responsible who receives the service in Turkey, whose interests are violated, and pays excessive and unwarranted withholding tax. Although the taxpayer is not the main taxpayer, she is the final contractor of the tax. In this case, although it is thought that the refund can be made directly to the taxpayer, pursuant to the provision stated in Article 8 of the TPL, "Special agreements regarding liability or tax liability do not bind the tax offices", the refund should be made to the main taxpayer who has not suffered any loss of interest, and it can be argued that whether the tax responsible party is the owner who is entitled to the refund amount or not will be a commercial dispute. However, this claim contradicts the approach in the judicial decisions that state that tax bearers whose property rights are violated also have the capacity to file a lawsuit (and indirectly take administrative action). In this context, the decision of the General Assembly of the Tax Litigation Chambers of the Council of State No. E.2021/42, and K.2021/943, dated 09.06.2021 and the approval of Ankara Regional Administrative Court 4th Tax Litigation Office Decision No. E.2020/631, and K.2020/880, dated 29.09.2020 can be given as an example.5
“However, although it is not a direct party to the tax relationship established between the administration and the person, the main contractor of the tax, that is, the "tax bearer", whose tax burden remains with him and has to meet this burden from his assets, is indisputably the party whose interests are affected, albeit indirectly, in the tax relationship again due to law.
When the wording of Article 377 of the Law No. 213 is strictly adhered to, it can be argued that the tax carrier does not have the authority (subjective capacity) to file a lawsuit in the tax court. The European Court of Human Rights has accepted in many of its decisions that the measures taken regarding taxes are an interference with the right to property. At the same time, the Court also accepts that means of resorting to the judiciary of the addressees of such obligations should be left open in any case against the measures taken and practices within the scope of tax policies and taxation authority, and that the absence of sufficient legal guarantees for taxpayers to protect their rights constitutes a violation of the right to property (Hentrich/France and S.A. Dangeville/France decisions). Since, by stating in Paragraph 1 of Article 6 of the Convention that everyone has the right to be tried in a fair and reasonable time before an independent and impartial court regarding disputes regarding their civil rights and obligations, legal remedies for the settlement of disputes regarding the property rights, which is one of the civil rights, are also guaranteed.
The litigation procedure for the compensation of damages arising from the violation of the property rights through administrative action is regulated in Article 12 of the Administrative Procedure Law No. 2577. In order to examine the merits of the full remedy action to be filed pursuant to the aforementioned article, it is necessary and sufficient that the administrative act subject to the annulment request violates a person's right to be protected by law, in other words, the administrative act causes material and/or moral damage to the person.
In the event, it is accepted that there is an error in the subject of the fee in the transfer process, and that the property right of the plaintiff is violated due to this transaction. It is also clearly understood from the letter dated 08/06/2016 of İller Bankası Anonim Şirketi present in the file. The amounts to be paid by İller Bankası Anonim Şirketi are borne by the plaintiff; as such, it is undisputed that the plaintiff is the party whose property rights have been violated due to the illegal transaction, by fulfilling his obligation to pay the fees both to himself and to the Bank which is out of litigation. Considering the fact that the transfer costs are borne by the plaintiff, the other party's being a public legal entity, it shall be contrary to the ordinary course of life to accept that it is due to the freedom of contract.
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As a result, in accordance with the reference made in the last paragraph of Article 90 of the Constitution, with the request of the claimant to return the title deed fee that she had to bear, Protocol No. 1 to the European Convention on Human Rights, Article 6 of the Convention and Article 12 of the Law No. 2577. and in accordance with the Decision No. E:2009/1 and K:2012/2 of the Council of State Consolidation of Jurisprudence, it should be accepted that there is the capacity to file a lawsuit in the tax court.”
CONCLUSION
Although the concepts of taxpayer and tax responsible party should be accepted as two different concepts, the statement of the TPL, which identifies the concept of tax responsible party with the concept of taxpayer, causes different precedent decisions, especially in terms of the capacity to file a lawsuit.
Although it is observed that decisions in this direction are made in order to avoid repeated returns in the justifications of the unfavourable decisions, in the decisions made in favour, it is clearly stated that in accordance with the court decisions given as a result of the lawsuits filed, the Administration shall fulfil the court decisions in a way that shall not cause duplication in extradition.
In this context, it is incompatible with the concept of liability to accept that only the person who collects the tax and deposits it with the tax office has the capacity to file a lawsuit, and that the tax responsible parties who essentially pay the tax and bear the financial burden of the tax are not related to this tax. From this point of view, the acceptance that tax responsible parties have the capacity to file lawsuits and apply for error correction, just like taxpayers, is a result of the evaluation of the above-mentioned articles of the TPL.
FOOTNOTES:
“Article 8 - Taxpayer is a natural or legal person who is incumbent on tax debt according to tax laws.
The tax responsible party is the person who is the addressee against the creditor Tax Office for the payment of the tax.
Except for the cases accepted by tax laws, special agreements regarding tax liability or tax responsibility do not bind Tax Offices.
The term "taxpayer" in the following Articles of this Law also applies to tax responsible parties.
A tax number is given to every real person and legal entity subject to the Republic of Turkey. The Ministry of Finance is authorized to determine the procedures and principles regarding the implementation of this provision and impose the obligation to use the tax number in the records and documents to be issued regarding the transactions to be made by public institutions and organizations, and real and legal persons.”
http://dergipark.gov.tr, Access Date: 13.11.2018.
https://www.adenymm.com.tr/vergi-sorumlulari-vergi-hatasi-kapsaminda-duzeltme-basvurusunda-bulunabilirler-mi Access Date: 11.09.2022.
NAZALI TAX & LEGAL