There is no regulation in the Tax Procedure Law No. 213 that requires the full or partial notification of the tax base or tax with reservation in cases where taxation should be based on declaration.
According to the law, taxpayers cannot file a lawsuit against the tax bases they have declared and the taxes levied on these bases. The application of the provision that the taxpayers cannot object to the tax bases they have declared and the taxes levied on these bases without exception causes various loss of rights and hesitation in the declaration of the tax and causes tax loss.
Widespread abuse of the way of submitting declarations by reservation, adopted by the case law, has become a tool for the obliged parties to leave the tax debt unpaid. Thereupon, the objection to the taxes calculated on the declarations made by reservation will not stop the collection of the tax.
It is indirectly stated in the law that the obliged parties can make an objectionable record in their declarations and in this way they can have the right of action. However, filing a lawsuit in this way will not cause the executive to stop automatically.
Due to the rejection of the lawsuits filed against the tax assessments and penalties made over the correction declarations made after the legal period with reservation, upon the sanctioned writings of the tax offices regarding the correction of the declarations without examining the merits;with The Constitutional Court decision dated 27/02/2019 and numbered B. No:2015/15100; It decided that the interference with the applicants' right to property was disproportionate and that the right to property guaranteed in Article 35 of the Constitution was violated.
Regarding the sanctioned letters of the defendant administration regarding the correction of the declarations, the right to file a claim will be filed in the correction statements submitted by the plaintiff..
A lawsuit may be filed against the accrued taxes upon the declaration with a reservation by removing the value added tax deductions arising from the invoices issued by the taxpayer, which are included in the sanctioned letter of the defendant administration.
COUNCIL OF STATE DECISION ON THE ACCOUNTANT PARTICIPATING IN THE TAX EVASION CRIME
A lawsuit was filed on behalf of the accountant plaintiff for the removal of the tax loss penalties imposed due to his participation in the tax evasion crime. The Fourth Chamber of the Council of State examined the appeal request of the defendant court regarding the issue in its decision dated 18/09/2018 and E: 2014/2542, K: 2018/7831.
The plaintiff accountant made the defense that he kept of Metal Orman Ürünleri İnşaat ve Madencilik Limited Company pre-accountings, received some payment for the service, issued invoices at the request of the company owners and did not know whether the content was correct. On the other hand, during the search of the plaintiff's house, some full and some empty invoices were found, and the plaintiff said that he had prepared the documents, although he claimed that he had no knowledge of the content.
At the end of the evaluation, the fact that the invoices related to the company that caused the tax loss were found at the plaintiff's address led to the decision that the plaintiff had participated in the preparation of forged documents and obtained the benefit. For this reason, the Council of State has decided that there is no unlawfulness in the tax penalty.
ADVISORY DECISION ON FALSE PREPARED CORPORATE TAX DECLARATION
In the decision of the Council of State Tax Offices, numbered 2019/592 E, 2020/1005 K., the lawsuit filed with the request of removing the tax loss penalty was evaluated.
Due to the tax inspection report determined that the plaintiff did not declare a part of his income, corporate tax was imposed ex officio, a penalty of one fold of the tax was imposed and the penalty was increased by applying the provisions of repetition. The plaintiff filed a lawsuit with the request to remove this tax loss penalty.
As a result of the investigation initiated against the plaintiff, who is engaged in the purchase and sale of fuel, legal books and documents of 2011 were requested. Some books were submitted by the plaintiff, but no legal books. Since corporate tax is collected on income, it is very important that the declarations are made in accordance with the truth and legal documents.
In Article 30/2 of the Tax Procedure Law, it is regulated that all or some of the books that are compulsory to be kept are not submitted and there is evidence that the declaration does not reflect the truth are reasons for the imposition of the tax ex officio.
According to the corporate tax return of the plaintiff, large differences were determined between the cost of sales and the total amount of assets at the end of the period and the amount of fuel purchases according to the Ba-Bs forms. This situation reveals that the tax returns do not reflect the truth. Despite the unrealistic returns, a decision was made on the grounds that there was not enough determination as to whether the plaintiff's purchases of goods were real or not. The Council of State decided to revoke this decision and the insistence decision found unlawful. The tax inspection report dated 18/02/2014 was prepared for the period in dispute.
THE COUNCIL OF STATE REVISED THE ADMINISTRATIVE COURT DECISION ON THE EIA (ENVIRONMENTAL IMPACT ASSESSMENT)REPORT.
The decision of the Administrative Court, where the judicial review of the EIA positive decision was made, was reversed by the decision numbered 2020/9813 E., 2020/11465 K of the 6th Department of the Council of State.
According to the Environmental Impact Assessment Regulation, an environmental impact assessment application file should be prepared, in which the environmental impacts and measures to be taken in the construction and operation of the project are evaluated. Accordingly, EIA positive or EIA negative decision is made about the project.
In the case of dispute, the EIA affirmative report was examined with the expert report prepared by the Administrative Court as a result of the discovery and expert examination. In the decision of the Council of State, it was stated that the determinations in the expert report based on the decision made by the Administrative Court were based on some abstract and general reservations and predictions. It was explained that the concrete and technical determinations based on the observations and examinations made in the project site regarding the EIA report are not included in the expert report. A new expert committee was ed to cover these issues and it was decided to make a re-discovery and expert examination.
THE DECISION OF THE CANCELLATION OF THE TENDER DUE TO COVID-19 HAS BEEN FOUND CORRECT BY THE COUNCİL OF STATE.
With the decision number 2020/3157 E. 2020/3348 K., The Council of State reversed the decision of the Administrative Court, which found it unlawful to cancel the tender due to the coronavirus.
"Two-Year-Period Food Preparation, Food Service and Bakery Workmanship" tender was held on 30/10/2019 by the General Directorate of Agricultural Affairs. Due to the coronavirus, the tender was canceled and the plaintiff company's complaint application was rejected by the Public Procurement Board. In the lawsuit filed for the annulment of the decision of the Public Procurement Board, the decision of the board was aned by the Administrative Court. Announcement by the defendant administration that the "Cookery, Waiter and Cleaning Work" tender will be carried out by overcoming the uncertainty of the Covid-19 process and that there are similarities between this tender and the canceled tender has been included in the reasoning of the court decision.
It has been acknowledged that the nature of the service has changed and it is uncertain how long the measures for the epidemic will continue, so that the current tender document cannot be acted on. It was evaluated that the new tender announced by the defendant administration was related to material procurement and personnel recruitment, and that there were large cost differences between the old tender and the tender that subject of dispute. For these reasons, it has been decided that re-tender will not hurt the cancellation of the dispute subject tender. Due to the uncertainty of the Covid-19 pandemic, the effective use of resources and the cancellation of the tender, which is the subject of dispute in terms of public interest, was deemed in accordance with law. In this respect, the Council of State declared that the decision of the Administrative Court was not legally correct.