STATUS OF BITCOIN TOWARDS LEGAL STATUTE
Yunus ELMAS
Along with the rise of e-commerce and technological developments, one of the currencies, used through new payment systems and increasingly popular, is Bitcoin as a cryptocurrency. In this article, the status of Bitcoin according to the legal statute of Turkey has reviewed..
I-PAYMENT INSTRUMENTS WITHIN THE SCOPE OF FINANCIAL CRIMES INVESTIGATION BOARD (“FCIB”), BANKING REGULATION AND SUPERVISION AGENCY (“BRSA”) AND CAPITAL MARKETS BOARD OF TURKEY (“CMBT”) LEGISLATION
As is known, the use of Bitcoin become a system used for committing money laundering crimes; despite this, there is no prohibitive regulation concerning the use of Bitcoin and/or the payment with Bitcoin. According to Turkish Penal Code provision on ‘laundering of assets acquired from an offense’, there will be no liability of company accepted payment with Bitcoin, on condition of not to be aware of ‘money laundering’ character of that Bitcoin used in the payment.
According to Suspicious Transaction Reports Guide published by FCIB, in the case that Bitcoin purchase of any bank customer from a Bitcoin seller financial intermediary, the relevant bank shall report the transaction to FCIB for investigation of that transaction.
Only assessment of BRSA regarding Bitcoin is press statement dated 25 November 2013 and numbered 2013/32. [1] And BRSA declared that Bitcoin is not electronic money with the justification of its structure and process, and also its probable risks are brought to the public attention. Bitcoin, as being a cryptocurrency type, is not regulated in BRSA regulations and it is obvious that there is a legal gap in that respect.
According to the report of research dated December 2016 published by CMBT[2], CMBT gave a positive opinion aspect of expediting Turkey’s legislative efforts regarding Bitcoin and involvement in the market by making basic arrangements. In our opinion, even though this report is issued just as a research report, it constitutes a presumption in the direction of the positive steps will be taken in Turkey by legal authorities related to the cryptocurrency regulation and taxation, in the coming period.
II-PAYMENT INSTRUMENTS AND BITCOIN WITHIN THE SCOPE OF FISCAL LEGISLATION
There is a problem in recording Bitcoin on financial books due to the fact that the Central Bank does not have a exchange published in terms of foreign currency collections and payments for Bitcoin. Also, it is a separate problem that the bitcoin value is excessively volatile.
1. Bitcoin in terms of Tax Procedure Law (“TPL”) numbered 213
The issue of how Bitcoin will be subject to valuation is uncertain, and the reason is that the legislative infrastructure for Bitcoin has not yet been established in our legislation. Currently, since Bitcoin does not comply with the definitions and regulations in the legislation, Bitcoin cannot be regarded as a cash deposit, foreign currency, securities, or a commodity.
In the circumstances, Bitcoin, which is held in assets of a commercial entity, can be assessed with 'if there is, its fair value, if not, its carrying value, if not, its precedent value' according to Article 289 of the TPL headed ‘Special Circumstances’. Due to that, there is no foreign currency stock exchange in Turkey to determine fair value, Bitcoin assesses with its carrying value ( it means that the calculation value identified in the accounting records) which is second place in the article. For this reason, there is no need for an assessment at the end of the period, even if Bitcoin’s market buying-selling value increases or decreases.
2. Bitcoin in terms of Value Added Tax (“VAT”) Law numbered 3065
According to the VAT Law, currency and money transfer exempt from VAT. It may be considered that the transfer of Bitcoin, which is a payment instrument such as currency and money in terms of its essence and function, may also be exempted from VAT in the light of this article of the VAT Law. There is essentially a purchase power transaction with Bitcoin's transaction. Therefore, it will not be possible to accept the existence of a goods delivery or service performance, and it can be assessed not to be subject to VAT. As a matter of fact, in some advance rulings of the Presidency of the Istanbul Tax Office, the transaction of the passwords substituted for money and developed for the purpose of safe shopping on the internet is not subjected to VAT in a similar manner.
CONCLUSION
In the light of all this information, when the Bitcoin system is evaluated in terms of Turkey, there is not any legal regulation recognizing, prohibiting or confirming the use of the Bitcoin system. Additionally, because of that there is not any issued exchange, it is not known how to record on financial books. As a result of that, because a legal gap comes to exist on that issue, there are some risky points regarding the use of Bitcoin as a payment instrument. As a consequence, the company that will accept payments by Bitcoin should pay attention to the following issues;
are must be taken.