Taxation law is a set of norms that are among the branches of public law that include the State on the one hand and individuals on the other. Taxation law is also in contact with other branches of law such as Constitutional Law, Criminal Law, Administrative Law.
It is written as follows in article 73 of our Constitution. "Everyone is obliged to pay taxes according to their financial strength to meet public expenses. " It is written as follows. "Tax duties, fees and similar financial obligations are imposed, changed or abolished by law." With this sentence, the principle that taxes can only be imposed, changed or removed by law has been adopted.
Tax Duty
Article 73 - Everyone is obliged to pay taxes according to their financial strength to meet public expenses. A fair and balanced distribution of tax burden is the social goal of fiscal policy. Taxes, duties, fees and similar financial obligations are imposed, changed or removed by law. The President may be empowered to amend the provisions regarding exemptions, exceptions and reductions of taxes, fees, fees and similar financial obligations within the upper and lower limits specified by the law.
In taxation law, since one party is the public, that is, the state, equality between the parties cannot be mentioned. However, there are exceptions to this.
For example, the principles of equality between the parties are applied to the receivables arising from the lease of the public building, the receivables arising from unjust enrichment, and the receivables arising from tort.
The subject of tax law is generally the assessment, accrual and collection of public revenues, tax crimes and penalties, and the resolution of disputes arising during the taxation process.
What are the branches of Taxation Law ?
Tax Criminal Law
It examines the sanctions that taxpayers who are obliged to pay tax will face due to their failure to comply with their obligations specified in the legislation.
Tax Procedure Law (tpl)
Article 331 - (Change: 30/12 / 1980-2365 / 58 art.)
Those who act against the provisions of tax laws are punished with tax penalties and other penalties written in this book.(tax loss penalty and irregularity fines)
Tax penalties that will incur acts against the Tax Law in the administration and liquidation of legal persons are imposed on behalf of legal persons.
However, persons who are taxpayers or tax responsible persons of minors and restricted persons included in the provision regulated in Article 10 of the Tax Procedure Law, organizations without legal personality such as Foundations and communities, their legal representatives, those who manage non-legal entities and their representatives, if any, are also the addressees of criminal penalties.
There are punitive provisions in our Tax Procedure Law. The "Criminal Provisions" regulated in the Fourth Book of our Tax Procedure Law are basically divided into three as tax loss, general irregularity and special irregularity crimes.
Tax Enforcement Law
The Law No. 6183 on the Procedure for Collection of Public Receivables includes the procedural rules for the collection of tax receivables from taxpayers.
6183 S. Law article 1 / f.1-"Judgment costs, tax penalties, fines related to the investigation and prosecution of taxes, duties, fees, penalties belonging to the state, special provincial administrations and municipalities, and other public receivables such as basic, delay increase, interest, and from the contract, tort and unfair acquisition of the same administrations with other receivables other than those born and arising from the exercise of public services; The provisions of this law are applied to said above and their follow-up costs."
The purpose of the measures taken in order to protect the tax receivable is to ensure the accrual and payment of the public receivables that are not accrued on time or are not paid.
For this purpose, separate provisions have been introduced for securing tax receivables, protection of the value of tax receivables and compulsory enforcement.
Tax Jurisdiction Law
It includes the rules regarding the settlement of disputes that may arise between the taxpayer and the tax administration.
According to the first article of the Administrative Jurisdiction Procedures law No. 2577, it has been clearly stated that in the resolution of the disputes that fall under the jurisdiction of tax courts, the articles of the AJPL and the written trial procedure in tax courts will be applied.
Code of Administrative Jurisdiction Procedures
Article 1- 1. The resolution of disputes falling under the jurisdiction of the Council of State, regional administrative courts, administrative courts and tax courts is subject to the procedures set out in this Law.
In the Council of State, regional administrative courts, administrative courts and tax courts, the written trial procedure is applied and the examination is made on the documents.
During the accrual or collection stages of the taxation process, taxpayers who are subject to tax, penalty, interest or raise can apply to methods such as conciliation, penalty reduction, error correction. In addition, if it is claimed that the transaction made by the Tax Administration is unfair, it is also possible to apply for a judicial remedy.
The large number of tax laws and the frequent changes of their articles depending on the developments, the diversity of the regulations and the trade volume can cause the parties to make mistakes in the taxation process.
In practice, the most common examples of tax disputes focus on tax-basis and differences' found as a result of tax inspections and tax assessment.
In disputes between the Council of State and the Court of Accounts regarding taxes, similar financial obligations and duties, the decisions of the Council of State are taken as basis.(Constitution article 160 / f.2)
It is observed that nearly 80% of the disputes are resolved through reconciliation and in 80% -90% of the disputes, taxpayers are justified in the part where the lawsuit is filed.
Sample cases are as follows; Deciding the rejection of the postponement request, Attachment of movable or immovable property by the tax office, filing a lawsuit against the payment order, assessment difference due to sales below market price
As a rule, the period for filing a lawsuit in tax courts is 30 days. This period starts from the date of notification in cases filed against tax penalty notification. This period starts from the accrual in cases filed against the declaration filed with reservation.
The period for filing a lawsuit at the Tax Court against the payment order, againts the warrant of attachment, against the precautionary accrual decision, against the precautionary attachment decision is 7 days. One of the most common situations is missing time. In cases of force majeure, difficult situation and death, periods are also determined.
International Tax Law
There are bilateral or multilateral international conventions in the taxation of the rights of individuals regarding their personal assets from the commercial transactions carried out in international trade. In addition, there are bilateral international agreements concluded with the aim of preventing double taxation and provisions of domestic legislation harmonized with this legislation and foreign arbitration awards.
Double taxation directly affects international trade and especially the decision to invest internationally.
Motor vehicle tax, inheritance and transfer tax, property tax, import and export exemptions, special consumption taxes, customs taxes, value added taxes, corporate taxes and various income taxes affect investment decisions, financial transactions and trade between foreigners and our country.
In taxation, the rule is that the subject matter of tax or earnings are taxed once.
In double taxation, more than one tax is collected over a single tax subject.
For example, the person earns in country A, lives in country B, and buys real estate in country
C. There is a rental income from this real estate.
Another example is the situation we often encounter in multinational companies. After the 1980s, the number of multinational companies has increased. In the taxation of the earnings of companies operating in more than one country, generating income and registering capital, legislative differences that will cause double taxation between countries have started to be discussed.
Companies that have at least 20% of their total financial resources outside the country of the company headquarters and at least 35% of their profits are obtained from international commercial activities are considered as multinational companies. In addition, there are other criteria used to determine whether the company is multinational or not.
Trade companies may not be the only addressee of international tax law. Personalities such as international trade s, associations, clubs, federations, confederations can also become parties to international tax law.
In determining the application area of tax laws in international law, we see that two separate principles are used as the principle of territory and personality.
In the principle of personality, the event that will lead to taxation is based on the bond established between the taxable person and the taxing state based on the relationship such as citizenship and residence.
In the territory principle, the country where the taxable income is obtained is taken as the basis.
In our country, in terms of the Income Tax Act, non-resident real persons in Turkey was accepted only be taxed on the income they earn in Turkey.
We see that the principle of personality is included in the 3rd article of our Income Tax Law.
Income Tax Law Act 3- Real persons listed below are taxed on all income and gains they have achieved in Turkey and the outside 1. Those settled in Turkey; 2. (Amended: 19/2/1963-202/1 art.)Turkish citizens residing in foreign countries because of the attempt of the apartment, institution, organization and work that is linked to government departments and establishments and undertakings or entities headquartered in Turkey(Those who are subjected to Income Tax or similar tax due to their earnings and revenues in their countries of residence, shall not be taxed separately on the aforementioned earnings and revenues.)
As of January 2019, Turkey has prevention of double taxation agreements with 84 countries. In addition, Turkey is conducting work quickly to ensure compliance with the development of international trade and other international obligations in the treaties in bilateral international tax conventions.
In determining the taxes that will be subject to double taxation agreements, the definitions in the local legislation of the parties are included.
In cases of violation of the agreement, besides local dispute resolution methods, inter-state (through ministries) application and submission methods are also adopted. Prescription period can also be predicted for this submission.
States parties may exclude some companies, institutions and organizations from the scope of the agreement.
In particular, the prohibition of discrimination is emphasized.
It is accepted that the citizen of the State party, its workplace, its enterprises will not be subjected to a different or heavier taxation or any obligation related to it than the taxation and related obligations faced or may be incurred by the citizens of another state, their workplace or their undertakings.