ABSTRACT
The Authorized Establishments (exchange bureaus) are joint-stock companies allowed to perform transactions related to foreign and precious metals within the framework of the principles and procedures determined by the Treasury and Finance Ministry (“the Ministry”) of the Undersecretariat of Treasury (“the Undersecretariat”)1. According to the Communiqué Regarding Decree No. 32 on The Protection of The Value of Turkish Currency (Communiqué Number: 2018-32/45) (“the Communiqué”) the establishment mechanism consists of three steps which are establishment license, company formation transactions, and official authorization; right after the establishment mechanism, the authorized establishments that are capable of dealing exchange maintain their operations pursuant to the same legislation.
I. INTRODUCTION
The Communiqué Regarding Decree No. 32 on The Protection of The Value of Turkish Currency (Communiqué Number: 201832/45) published in the Official Gazette on 30.01.2018 regulates the procedures and principles regarding the establishment, operations, branch opening, obligations, and supervision of those authorized establishments that are known as Exchange Bureaus. The Communiqué, divides the authorized establishments into two groups: Group A authorized establishments and Group B. The conditions and procedures set out in the Communiqué must be fulfilled in order to be able to operate either type of authorized establishment.
II. APPLICABLE LEGISLATION
It is appropriate to examine the legislation regulating the procedures and principles regarding the authorized establishments under two main separate headings: the main legislation and the auxiliary legislation. The main legislation concerning authorized establishments is composed of The Protection of The Value of Turkish Currency Law No. 1567 (“the Code”), Decree No. 32 on The Protection of The Value of Turkish Currency and The Communiqué Regarding Decree No. 32 on The Protection of The Value of Turkish Currency. The auxiliary legislation can be categorized as the Turkish Commercial Code No. 6102 (“TCC), the Law Regarding the Prevention of Laundering of Criminal Revenue No. 5549, Turkish Criminal Code No. 5237, Tax Procedure Law, Central Bank of Republic of Turkey’s Circular Numbered I-M and Social Security Legislation. The main legislation includes general, framework and mandatory regulations on the establishment and operations of authorized establishments whereas the provisions of the auxiliary legislation regulate the tax obligations authorized establishments and penal sanctions that may arise in case of an act against the legislation.
III. ESTABLISHEMENT OF THE AUTHORISED ESTABLISHMENTS
A. Application for Establishment License and Prior Authorization
In accordance with Article 5 of the Communiqué, permission must be obtained from the Undersecretariat in order to establish an authorized establishment and to begin operations. Article 6 of the Communiqué regulates the conditions under which authorized establishments may be established. Article 7 of the Communiqué stipulates the information and documents that must accompany the application to the Undersecretariat. In accordance with Article 8 of the Communiqué, the approval of the Undersecretariat to the founders that applied is allowed to establish joint-stock companies by the provisions of the Turkish Commercial Code. The application should be done with the necessary information and documents stipulated in Article 7 of the Communiqué and the founders applying to the Undersecretariat that provide the terms regulated in the Article 6 of the Comminiqué. In accordance with Article 6 of the Communiqué, the requirements of the authorized establishments to be established are as follows; a) To be a joint stock company, “the Authorized Establishments” or “Limited Authorized Establishments” expressions has to be situated in comply with the field of activity that the authorized institution shall operate in according to the trade name writtten in the company’s articles of association. b) Exclusively established to deal with the operations of the authorized establishments, the paid-in capital of the Group A authorized establishments should not be less than 5 million TL and 1 million TL for the Group B, c) For Group A authorized establishments, the internal control officers shall comply with the requirements of the Communiqué. Not only them but also; each co-owner and founder legal person residents in Turkey individuals with one or more partnerships percent share in common and company general manager, board members, employees who are authorized to sign shall comply with the requirements of the Communiqué, d) The share certificates shall be registered and issued in cash, and lastly Articles of Association shall comply with the Protection of the Value of Turkish Currency legislation provisions2.
The founders of the authorized establishments fulfilling these conditions as required by the Undersecretariat as a result of their application to the Undersecretariat with the information and documents required to be added to the application listed in Article 7 of the Communiqué, complete the establishment permit phase. It should not be forgotten that the founders who obtained the establishment permission from the Undersecretariat within the scope of these provisions will not be able to perform the activities to be explained below as an authorized institution to be explained below unless they have completed the other establishment procedures in other words as long as they do not acquire an operation permit3.
B. Establishment of A Joint-Stock Company
The founders whose applications, which shall include the required information and documents pursuant to the Article 7 of the Communiqué, deemed appropriate by the Undersecretariat as per the Article 8 of the Communiqué, are vested with the authorization for establishing a joint-stock company. The founders apply to the Undersecretariat in 90 days from the date of establishment permission to complete the establishment process of the authorized institution to obtain the operating permission. The companies who do not apply within this period are deemed as their establishment permission is cancelled. The Undersecretariat may extend such period up to 90 days provided that the obligatory cases are proved so. To sum up, in this phase of the establishment of the authorized establishments, the provisions concerning the establishment of joint stock companies in the Turkish Commercial Code shall be applied. In order to complete the process, the permission of the Undersecretariat and the authorization letter of the Ministry of Commerce of Republic of Turkey must be submitted to the trade registry.
C. Operating Licence
In the light of the above, the founders who have been vested with the establishment licence, must complete the establishment procedures of the authorized institution within 90 days beginning from the establishment permission and apply to the Undersecretariat in order to obtain the operating license. In this respect, the founders who have completed the establishment process of the joint stock company within the said 90 days, apply to the Undersecretariat in order to obtain the operation permit with the below mentioned documents regulated in the Article 9 of the Communiqué. a) A copy of Turkish Trade Registry Gazette where the articles of association has been published, b) Document to be obtained from the bank indicating that the minimum share capital as subscribed in the company’s articles of association has been paid up in cash and at once by the founders, c) The Document confirming that the legal fee has paid, d) Document confirming that the amount corresponding to one-tenth of the paid-up capital has been deposited in a Public Bank or a Public Participation Banks, or a letter of guarantee of in the same amount, e) Document providing that the application fee in the amount of 500 thousand Turkish Lira for Group A Authorized Establishments and 200 thousand Turkish Lira for Group B Authorized Establishments has been paid, f) Documents providing that camera or image recording system is properly installed in accordance with Article 26 of the Communiqué, g) Information and documents indicating that the requirements to be determined/required regarding the corporate governance by the Undersecreteriat, h) Board of directors decision regarding the appointment of internal controller or written document on one or more board member’s having been appointed as internal controller provided that delegated expressly and in writing and that they have been vested with required powers, i) Other documents required by the Undersecretariat4 In addition to the above-mentioned, Article 9 (5) of the Communiqué further regulates another procedure for authorized establishments, which must be carried out before the operation permit is obtained. As per the said article; an authorized institution must notify the Undersecretariat before obtaining an operating license that it has opened the website and that its headquarters address has been added to the official website. It should be noted that; the above-mentioned documents must be added to the application, and as a result of the examination carried out by the Undersecretariat, the authorized establishments, whose conditions are considered appropriate, are allowed to operate and the “Authorized Institution Authority Permit” is issued on behalf of the company. Pursuant to the Article 13 of the Communiqué; real persons or legal entities who do not have an “Authorized Authority Operating License” cannot conduct foreign exchange transactions for commercial purposes. There is another 90-day period following the obtaining the authorized authority operating license. The authorized establishments are obliged to send the attendance report to the Undersecretariat within 90 days from the date of operating license, which is to be received from the relevant tax offices stating that the operations are started in such address. “Authorized Institution Authority Permit” issued on behalf of the Company is having the characteristics of embossed stamp and such permission shall be hung the headquarters of the authorized institution where may be seen by anyone. Having said that, in accordance with Article 10 of the Communiqué, if the founder who wishes to obtain an authorized institution operating license is a resident abroad, the provisions of the Article 7 of the Communiqué will be applied comparatively. Additional information and documents that shall be added to the application are detailed in the Article 10 of the Communiqué.
IV. TYPES AND OPERATIONS OF THE AUTHORISED ESTABLISHMENTS
Authorized establishments are divided into two groups according to their field of activity: Group A authorized establishments and Group B authorized establishments. In accordance with Article 13 of the Communiqué, it is obligatory that the authorized establishments shall have Group A or Group B signatures in the work places or signboards that are visible to everyone. In Article 4 of the Communiqué, first of all, the activities that can be done by Group B authorized establishments are specified. The activities that can only be performed by Group A authorized establishments are regulated in a separate article. In this regard, firstly, it would be more accurate to explain the activities of the Group B authorized establishments. Group B authorized establishments may perform the following activities: a) Sale and purchase of foreign money except deposit money, b) Replace the foreign currencies other than currencies with smaller or larger clippings, different type of foreign money except deposit money, c) To purchase checks paid by foreign currency in accordance with the procedures and principles determined by the Central Bank, d) Trading of unprocessed gold in the form of bar or ingot smaller than one kilogram and trading of printed gold (national trappings and gold coin etc.) produced by the Mint and the General Directorate of Mint and Stamp Printing e) Buying, selling and exchanging foreign currencies through banks, authorized establishments and customers through banking transfers provided that the transfer order is given within the same business day or the physical delivery of the subject is carried out5.
The Communiqué does not allow the Group B authorized establishments to carry out any activities other than those listed above. However, Group B authorized establishments may not use any words, phrases or signs in the trade names, workplace opening licenses advert and advertisements, workplaces or internet sites, which will create the impression that they perform transactions other than those activities. The Group A authorized establishments are the authorized establishments which can perform activities in the first and second sub-articles of Article 4 of the Communiqué. The Group A authorized establishments cannot perform any activities other than the activities specified in the first and second sub-articles of Article 4 of the Communiqué. Also, they may not use any words, phrases or signs in the trade names, workplace opening licenses, adverts and advertisements, workplaces or internet sites, which will create the impression that they perform transactions other than those activities.
In addition to those mentioned above, only activities of Group A authorized establishments specified in Article 4 of the Communiqué are; a) import and export of precious and non-standard unprocessed precious metals with precious stones and to carry out transactions related to precious metals and stones that is in the stock market within the framework of the relevant regulations and law on condition that to be a member of the Stock Market, b) buying, selling and replacing foreign currencies with foreign banks through banks, authorized establishments and organizations capable of transferring with their customers on condition that the transfer order is given within the same business day or the physical delivery of the subject is carried out, c) Operating as a representative of electronic money institutions and payment institutions, d) Trading foreign currency and making related transactions through money machines in central and / or branch addresses and other places deemed appropriate on condition that if it is permitted by the Undersecretariat, e) Trading foreign currency through debit cards and up to USD 10 thousand prepaid cards without limitation, f) Delivering foreign currency coins or Turkish Lira banknotes abroad on condition that permission is obtained from the Undersecretariat within the principles and procedures to be determined by the Undersecretariat, g) To perform other activities deemed appropriate by the Undersecretariat.
In accordance with Article 13 of the Communiqué, all authorized establishments, whether in Group A or Group B, must hold at least two exchange rates, including US Dollars and Euros, at the workplace so that everyone can see their purchase and sales information.
Article 4 of the Communiqué also regulates a number of matters in which authorized establishments cannot operate other than those mentioned above. As such, authorized establishments cannot make transactions with credit cards and transactions and/or cannot install in any way. They cannot charge commissions or fees under any name except for the prices calculated from the buying and selling currencies they have declared and announced freely in the foreign currency purchase and sale transactions, unless not get a permission from the Undersecretariat.
V. OPEN A BRANCH
A. Authorization for Open A Branch
Pursuant to Article 11 of the Communiqué, the ability of an authorized institution to open a branch is arranged differently according to the type of activity to be determined in accordance with the field of activity of the authorized institution. Within this regard; Group A authorized establishments to open a branch is subject to the permission of the Undersecratariat, The Communiqué mandates the addition of the Board of Directors decision and a report that specifies the reasons for opening a branch to the application to the Undersecreratiat in order to open a branch. Besides, the Communiqué does not allow the Group B authorized establishments to open a new branch and apply to the Undersecratariat accordingly.
B. Official Authorization for The Branch Activity
In accordance with Article 12 of the Communiqué, the authorized establishments that are following the evaluation of the requirements of the Group A authorized establishments shall be allowed to open the branch. Authorized establishments that have permission to open branches must complete the establishment procedures of the relevant branch within 90 days following the date of the permit and apply to the Undersecretariat in order to obtain an operational permit. The companies that do not apply to the Undersecretariat within the 90-day period are deemed as their authorization to open a branch is cancelled. In accordance with Article 12 of the Communiqué, it is obligatory to add the following information and documents to the application to be taken to obtain the branch operation permission.
a) A copy of the Turkey Trade Registry Gazette on 2 million Turkish Liras have been added to the paid-in capital while obtaining an operating permit for the authorized institution and a document proves that the whole is paid of the enlarged share capital for each branch b) For each branch, document proving that the amount corresponding to one-tenth of the additional paid-up capital in the item (a) of the Communiqué under the provisions of Article 14 of the Communiqué is deposited in one of the State-owned Banks or Public Participation Banks or the same amount of guarantee letter, c) Document proving that 200 thousand Turkish Lira application fee has been paid for each new branch, d) A copy of the Turkey Trade Registry Gazette where the branch is registered, e) Document proving that the fee required to be paid under Law No. 492 was paid, f) Document proving that the branch name and the address of the authorized establishments are added to the official website, g) Other documents deemed appropriate by the Undersecretariat6. Following the application of the above information and documents to the application and upon the application to be made by the Undersecretariat, the Branches are granted “the Branch Permits” by the Undersecretariat.
VI. MISCELLANEOUS
Some obligations are regulated in the Communiqué solely for the Group A Authorized Establishments such as opening an account, setting up a camera system, establishing a system of customer recognition, and contracting a framework are only obliged to set up an internal control system and procedural regulations related to related institutions are given. In this regard, the requirement of obtaining permission from the Undersecretariat has been stipulated in the Communiqué on certain issues such as the opening of the branches described above, merger and the transfer of shares that cause changes to the shareholders. Apart from this, the obligation to inform the Undersecretariat in terms of issues such as interrupting the activity, closing the branch, changing the company title etc. is regulated in the Communiqué as well.7
VII. SANCTIONS
A number of different sanctions have been regulated within the scope of Article 29 titled “Sanctions” of the Communiqué on the establishment and activities of authorized establishments. It is possible to classify the sanctions in the relavant article as (i) during the authorization of establishment, (ii) during the obtaining an operating permit and (iii) sanctions to be enforced upon receipt of an operating permit.
In this context, in cases applications of establishment license and operation permit certificate to the Undersecretariat are detected to be false documents or declarations are made, the legal process shall be initiated in accordance with the Law about the authorized institution and the persons who provide false documents or declarations. If the person presents false document or declare is a partner of the company, up to 60 days to be given to that partner to be withdrawn from the partnership and if the person presents false document or declare is the general manager, board member, authorized person or internal control officer, up to 60 days shall be issued for the dismissal of such duty. In the event that the necessary actions are not taken after the specified period, the authorization of the authorized institution is canceled.
Moreover, the authorization of the establishment of the authorized institution, which was activated before the issuance of an “Operation Permit”, is canceled by the Undersecretariat and legal action is commenced according to Law about the founders and the company.
In the event that the operation permits and branches are not started to operate within 90 days from the date of the operation permit, the operation permit and branch operation permission granted by the Undersecretariat will be canceled. It is mandatory to send the cancelled “Authorized Institution Operation Permit Certificate” and/or “Branch Operation Permit Certificate” to the Undersecretariat within 5 days following the notification of the cancellation process. Otherwise, a legal action will be commenced according to Law the company8.
VIII. CONCLUSION
Due to the dynamic nature of today’s commercial life and tourism sector, the authorized establishments that are known as exchange bureaus among the people are becoming more important gradually. In the framework of the procedures and principles determined by the Ministry, the authorized establishments called as a joint-stock company which are allowed to perform transactions related to foreign currency and precious metals, contribute significantly to the formation of foreign exchange market in our country. Within the scope of The Communiqué Regarding Decree No. 32 on The Protection of The Value of Turkish Currency, Group A Authorized Establishments and Group B Authorized Establishments are examined under two different groups in respect to their activity fields; and as it is explained above they establish in 3 steps which are procurement of the establishment license, company formation transactions and official authorization. They continue to their activities provided that they are limited to the fields of activity specified in the relevant legislation.
BIBLIOGRAPHY
DOÇ. DR. ALI IHSAN KARACAN, Bankacılık Kurumları Hukuku - I, C. 1/1, 1st Edition, Legal Yayıncılık, İstanbul (Access Date: 02.01.2018)
RAIF BAKOVA/ILYAS BALOĞLU, “Yetkili Müesseseler (Döviz Büroları) Tarihi, Mevzuatı ve Denetimi”
YEMINLI MALI MÜŞAVIR TALHA APAK, “Yetkili Müesseseler (Döviz Büroları) Mevzuatı (Kuruluşu - Denetimi - Vergilendirilmesi)”
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Türk Parasi Kiymetini Koruma Hakkinda 32 Sayili Karara İlişkin Tebliğ, 30317 sayılı Resmi Gazete (No: 2018-32/45)
FOOTNOTE
1 Yeminli Mali Müşavir Talha Apak, “Yetkili Müesseseler (Döviz Büroları) Mevzuatı (Kuruluşu - Denetimi - Vergilendirilmesi)” s.1.
2 Türk Parasi Kiymetini Koruma Hakkinda 32 Sayılı Karara İlişkin Tebliğ, 30317 sayılı Resmi Gazete (Tebliğ No: 2018-32/45), Article 6.
3 Doç. Dr. Ali İhsan Karacan, Bankacılık Kurumları Hukuku - I, C. 1/1, 1. Baskı, Legal Yayıncılık, İstanbul (Access Date: 02.01.2018) p.396.
4 Türk Parasi Kiymetini Koruma Hakkinda 32 Sayılı Karara İlişkin Tebliğ, 30317 sayılı Resmi Gazete (Decleration Number: 2018-32/45), Article 9.
5 Türk Parasi Kiymetini Koruma Hakkinda 32 Sayili Karara İlişkin Tebliğ, 30317 sayılı Resmi Gazete (Tebliğ No: 2018-32/45), md.4.
6 Türk Parasi Kiymetini Koruma Hakkinda 32 Sayili Karara İlişkin Tebliğ, 30317 sayılı Resmi Gazete (Tebliğ No: 2018-32/45), md.12.
5 Halil Arslanlı, Anonim Şirketler, Vol. 2, Fakülteler Matbaası, 1960 p.119; Oğuz İmregün, ‘’Anonim Ortaklıklarda Toplantı ve Karar Yeter Sayıları ve Yönetim Kurulu Kararlarına Karşı Başvuru Yolları’’, Prof. Dr. Hayri Domaniç’e 80. Yaş Günü Armağanı, Vol. 1, İstanbul 2001, p.287; Ömer Teoman, ‘’Anonim Ortaklık Yönetim Kurulu Üyelerinin Müzakerelere Katılma Yasağına Aykırılığın Yaptırımı Nedir?’’, BATIDER Yıl 2010, Vol..26, N..4, (Müzakerelere Katılma Yasağına Aykırılık),p.10.
6 Kılıç, p.69.
7 Serhan Dinç, 6102 Sayılı Türk Ticaret Kanunu’na Göre Anonim Şirketlerde Yönetim Kurulu Üyelerinin Hukuki Sorumluluk Hâlleri, Ankara Barosu Dergisi, Ankara 2016, p. 158
8 Pulaşlı, p. 1171.
