ABSTRACT
Government provides the requirement for financing with public revenues to perform public services. For this reason protection of public revenues, receiving the relevant revenues
on the right time and complete from relevant
individuals is crucial1.
As well as there are
several measures taken by the government
via laws for the protection of such public receivables in order to receive on the right time
and complete, in this study, we shall discuss
the measures set forth by the legislator on The
Law No 6183 such as requesting guarantee,
precautionary distraint and accrual and other
major protection measures for the purpose of
protection of public receivables.
I. INTRODUCTION
Although tax is explained as “the economic
values taken by the governments unilaterally and based on tax raising power from
persons’ revenues and assets due to cover
the public expenditures”2.
in literature, generally tax is the economic value demanded
by the government due to the public services provided.
Tax creates a relationship between the individuals and
the government in order to obtain the relevant economic values. Therefore, the specification of frame, regulations, provisions and conditions of this relationship
which is resultant accordingly taxes between government and persons happen via statutes.
The Law on Collection of Public Claims No 6183 (“The
Law No 6183”) which is published in Official Gazette
numbered 8469 and dated 28.07.1953 is a that consists
collection and pursuance procedure of public claims. In
other words, it is a law brought into force by legislator
and consists heavy conditions, provisions and results in
order to regulate persons’ taxes and funds, court charges
dependent criminal procedure, tax penalty, fine like fundamental late fee, interest like accessory public receivables belong to the state, provincial special administrating and municipalities and the same administrations
persuance expenses except arising from contracts, torts
and usurpatiens other receivables arise from practicing
public services collection by force.
Although the principles of “justice of taxation” and
“generality of taxation” principles are in among the basic principles of tax law, also “principle of legality” underlie taxation law.
“Generality of taxation principle” means that each person shall be liable for taxation. Notwithstanding under
“justice of taxation principle” which is one of the other
principles of very high concern in tax law, government
shall be responsible for putting each person through
taxation at the rate of their financial power. In conclusion, according to “principle of legality” which underlie
of tax law, taxes, duties, charges and the same public receivables are created by financial obligation have to be
enacted only with law3.
II. MEASURES FOR THE PROTECTION OF PUBLIC RECEIVABLES
As it is explained above, under the principle of legality in tax law, financial obligations can only be enacted by law. The Law No 6183 published in Official Gazette numbered 8469 and dated 28.07.1953, provides for that public receivables are privileged and different from other receivables with the purpose of introducing several measures so as to strengthen the following up and collecting the receivables. These measures are going to be discussed below.
A. Request for Guarantee
Despite the fact that public debtor tries several ways cause loss of public receivables, guarantee relaxes public administration and gives security about reaching receivables. The way of guarantee’s purpose assures the public receivables with the asset value which is chosen by public debtor itself against its debt after the demand of Collection Office4.
According to article 9 of The Law No 618, in the event of the commencement of the necessary formalities required for the claim of public receivables within the scope of article 344 of the Tax Procedure Law governing the cases where a tax loss fine needs to be applied and those circumstances within the scope of article 359, a guarantee is requested by the collection offices over the amount stated by the tax officers authorized for the tax investigation according to their first calculations5.
By article 9 of The Law No 6183 written above, in the evet of a tax loss fine governed in article 344 of The Tax Procedure Law which is published in Official Gazette numbered 10705 and dated on 12.01.1961 and the summugling goverened in article 359 of the same Law State shall request a guarantee over the officers authorized according to their first calculations for the purpose of secure the tax collecting needs to be applied and loss of taxation on the processes of ex officio and complementors tax assessment.
The cases accepted as guarantee in the scope of The Law No 6183 are stated restrictively in the article 10 of The Law No 6183. There under:
• Money,
• Letters of guarantee unlimited in time issued by banks and special finance institutions,
• Government debt securities exported by Undersecretariat of Treasury or regulated documents instead of these
• National stocks and bonds to be determined by the Government (Such stocks and bonds shall be valued at 15% lower than the closest stock market value for it to be considered as guarantee)
• Moveable and immoveable property provided by the persons concerned or which have been provided by third parties in favor of the persons concerned and which have been seized pursuant to an attachment order by the creditor public administration can be accepted as a guarantee.
Posting a guarantee has weighty consequances for public debtor. The consequance that results in arising one of the circumstances requiring of demanding guarantee, implementing precautionary distraint and accrual about public debtor is the most important one6.
Additionally, in the scope of article 11 on The Law No 6183, those persons who are unable to provide a guarantee in accordance with article 10 of the related Law may show a reputable person as several surety and joint several debtor. The personal surety shall be established by means of a notarized agreement in accordance with conditions to be determined. The acceptance of the personal surety and the person to give such personal surety is within the authority of the creditor collection office. The person providing the surety who has paid the public debt is given a certificate to such effect.
B. Precautionary Distraint
According to the article 13 of The Law No 6183 “In the event of the existence of the below, a precautionary attachment may be immediately applied in accordance with the provisions governing the application of such attachment upon the decision of the most senior official of the creditor public administration without being subject to any time limitation:
1. If the events requiring the giving of a guarantee in accordance with article 9 exist,
2. If the debtor does not have a fixed residence,
3. If the debtor has run away or if there is a possibility of the debtor running away, or hiding his goods or resorting to fraudulent means,
4. If the debtor has not provided a guarantee or a surety despite having been asked to do so or if the debtors offer to provide a personal surety has not been accepted or if the person who the debtor has shown as surety has not been accepted,
5. If the debtor who has been requested to make a wealth declaration has not done so within the requested time period or has not made a complete declaration,
6. If a public case has been initiated for any act necessitating the imposition of fine, irrespective of the granting of a final judgment,
7. If there are circumstances which require the application of articles 27, 29 and 30 of this law to the assets which form the subject matter of a transaction or disposition the cancellation of which is sought or if such assets have been disposed off which require the application of this law on the assets of the person who has so disposed7.
The distraint which provides security for collection of the public receivables which will be relased in future or has not expired yet or has been overdued though it’s garnishement has not been notified is named as precautionary distraint8.
In the scope of article 14 of The Law No 6183, assets which have been attached under a precautionary attachment may be released to the debtor upon the depositing of the value of the assets as guarantee or providing a person with a residence in the same location as the collection office as surety for their release in cash or in kind upon request and in the event of the assets having been attached while in the possession of a third party to the third person upon the giving of an undertaking deed9.
Precautionary distraint is spaceless in the scope of The Law No 618310. Precuationary distraint may be applied upon the decision of the most senior offical of the local creditor public administration. This duty belongs to the tax office manager of the place where The Tax Office Directorate was established.
According to the article 15 of The Law No 6183, persons who have been subject to a precautionary injunction may object to the cause of the precautionary injunction to the tax objection commission responsible for the objections to be raised with the creditor collection office within 15 days of the application of the precautionary injunction11.
In the execution of the precautionary distraint; an action can be brought against precautionary distraint on tax court within the 7 days from the receipt of the precautionary attachment order.
According to the article 16 of The Law No 6183, precautionary distraint is canceled by the office which has given the precautionary distraint order. Canceling the precautionary distraint can be in 3 ways.
• Providing a guarantee other than movable goods and personal guarantee.
• Final judgement order related to precautionary distraint or final judgement orders related to canceling the public receivables which is subject of precautionary distraint
• Reformation under provisions of Tax Procedure Law no 213.
C. Precautionary Accrual
Precautionary accrual is practicing caution related to protection of the public receivables. It is implemented for some of the taxes and duties which are entered on Taxation Procedure Law No 213. It is an act for tax payer’s debts have not accured yet without pass through description, notice and objection(normal accrual system) It describes the quantity of releasing distraint for public receivables on precautinoary distraint execution.
Several resasons have to be accured for the execution of precautionary accrual. In the scope of article 17 of The Law No 6183, these reasons are herein below:
1. If any of the cases for precautionary distraint as provided under article 13 subclauses 1,2,3 and 5 exist,
• If the events requiring for guarantee request in accordance article 9 exist,
• If the debtor does not have certain residence,
• If the debtor run away or if there is a possibility of the debtor running away or hiding his goods or resorting to fradualent means,
• If the debtor who has been requested to make a wealth declaration has not done so within the requested time period or has not made a complete declaration,
2. If the follow up has been initiated against tax payer with the claim of hindering for the collection of public receivables,
3. In the event of evidence to the effect that enterprise is collusive and belongs to someone else in reality, provincial treasurer or head of tax office shall give written order about taxpayer’s debts which have not been accrual are determined and declareted by the office and these debts’ rising and penalties over the written request of tax office manager.
Precautionary accruals are enforceable for income tax, corporate tax, value-added tax, stamp tax, inheritance and transfer tax, special consumption tax, special communication tax, banking and insurance transaction tax and raises and fines concerning these taxes.
Accrued tax, duty and their raises and fines are not collectible before their legal payment dates. However, preliminary injunction may be enforced for this amount of public receivables. After the precautionary accrual, the receivables is accrued according to the relevant tax code. The difference between the precautionary accrual and the accrual according to the relevant tax code is corrected considering the special law.
Due to the fact that precautionary accrual is a measure about the protection of the public receivables, it can only be applied together with the precautionary attachment and the law does not determine a period of time for the application of the precautionary accrual12.
D. Other Protection Measures
1.Pre-Emptive Rights in Public Receivables ( Pro rata Split)
According to the article 21 of The Law No 6183, “if an attachment is put for a public receivables over assets attached by third persons but prior to the liquidating of such assets, such receivables also participates in the attachment and the liquidation proceeds are split pro rata”13.
If the payment of all receivables registered in the same degree is not possible, it is called a pro rata split to make the payment in proportion with the receivables14 15. In this way, even though the collection office participates to the attachment later, public receivables does not fall into the line and has a privilege according to the other demander persons16. Rights of the pledgees are reserved. However, public receivables arising from customs duties, building and land taxes and other public receivables stemming from the real rights over immoveable shall have priority over the secured creditor in its collection for such goods or immoveable.
2.Those Responsible for The Deduction And Payment of The Public Receivables
In the event of real or legal persons who are obliged to deduct the public receivables from the debtor and pay it to the collection office not doing so as provided for in their laws or during the time periods provided in their laws, the public receivables shall be collected from such real or legal persons as per the provisions of this law17.
3. Action of Annulement
According to The Law No 6183, so as to ensure the protection and collection of the public receivables, some dispositions and transactions of the debtor can be subjected to judicial control and annulment procedure. However, it is necessary to state that action of annulment is only possible for the dispositions in the adequate amount that the public receivables cannot be satisfied by debtor’s properties18.
An action is brought in ordinary courts about invalidity of dispositions for guarantee is in article 27 of The Law No 6183, disposition which shall be considered as donations is in article 28, other dispositions which shall be deemed null and void is in article 29 and disposition made with the intention of preventing collection of the public receivables is in article 30.
4. Invalidity of Dispositions for No Consideration
According to article 27 of The Law No 6183, “donations and dispositions for no consideration made within two years going back from the date of payment or made after the date of payment by debtors who have not paid their public debt and who have not made a wealth declaration during the time period provided or who have not made a wealth declaration despite being pressurized by means of imprisonment or who have stated that they do not have any wealth or whose wealth is not sufficient to meet its debt, shall be null and void”19. In other words, donations and dispositions for no considration made within two years going back from the date of payment or made after the date of payment by deptors who have not paid his public debt shall be null and void.
5. Other Dispositions Which Shall Be Deemed Null And Void
Dispositions made within two years going back from the date of payment or made after the date of payment by debtors who have not paid their public debt and who have not made a wealth declaration during the time period provided or who have not made a wealth declaration despite being pressurized by means of imprisonment or who have stated that they do not have any wealth or whose wealth is not sufficient to meet its debt, shall be null and void:
1. With the exception of those instances where the debtor had undertaken to provide a guarantee, pledges given by debtor as security for an existing debt,
2. Payments made by means other than cash and other normally applied payment means for the repayment of a debt,
3. Payments for a debt which is not due yet,
6. Persons’ Right and Liabilities
If the creditor public administration wins the annulment lawsuit because of invalidity of dispositions for guarantee is in article 27 of The Law No 6183, disposition which shall be considered as donations is in article 28, other dispositions which shall be deemed null and void is in article 29 and disposition made with the intention of preventing collection of the public receivables is in article 30, the persons who benefit from these transactions would have to pay the obtained price or pay the admired price in case not get out of hand.
7. Public Receivables in Liquidation
Liquidators are under the obligation to inform the collection office of the commencement of the liquidation within 3 days. Liquidators or those responsible for the conducting of the liquidation may not distribute the liquidation proceeds or make any kind of disposal on such proceeds prior to the payment of all receivables of the public administrations or prior to setting such aside for payment. Otherwise the liquidators or those responsible for the conducting of the liquidation will be personally and severally liable.
8. Request for The Termination of The Partnership
In the event there are no assets belonging to the debtor or such is not sufficient to cover the public receivables or the guarantees required pursuant to this law are not provided by the debtor or the partnership, the liquidation of the partnership may be requested in accordance with the general provisions for the shares of the debtor in partnerships the capital of which is not divided into shares for the collection of the public receivables.
9. Public Debts of Limited Liablity Companies
The shareholders of limited liability companies are directly responsible for public receivables which may not be collected from the company in proportion to their capital share and shall be subject to follow up as per the provisions of The Law No 6183. In the event of the shareholder’s assignment of the share, the persons who are assignee or assignor are severally liable for payment of the public debts before assignment. According to The Constitutional Court Decision, these provisions are implemented for the tax debts arising after the date of 06.06.2018.
10. Mergers and Acquısitions, Separation And Conversions
For the purposes of the application of The Law No 6183, new legal entity formed as a result of the merger of two or more legal entities, the acquiring company in the event of an acquisition, the legal entities acquiring the assets of the company which has been spun off in the event of a spin off, the new legal entity in the event of a conversion, shall replace the legal entity which has merged, been acquired, spun off or converted.
11. Liability of Legal Representative
Public receivables which cannot be collected from legal entities, minors, incapacitated and organizations such as trusts and congregations shall be collected from personal assets of the legal representatives and for organizations which do not have a legal identity, public receivables shall be collected from the personal assets of those responsible for the management of the enterprise. The liability of legal representatives prior to the date of liquidation will not be lifted because of the liquidation of legal entities or commencement of a liquidation process. In the case that legal representatives are different persons when the public receivables is due and shall be paid, those persons are severally liable from the payment of the public receivables. This provision is applicable for the tax debts arising from the date of 06.06.08 according to the Constitutional Court. The representatives, those responsible for the management of the enterprise or representatives may have the right of recourse for the amounts they have paid according to this provision to the public debtor. Collection procedure for legal representatives start with the serving of the payment order.
III. CONCLUSION
As a result, main protection measures regulated under the Law number 6183 which is brought into force
to ensure the payment of the receivables provided by
persons in return for services given by the government,
consist of guarantee, precautionary attachment, preliminary injunction and other provisional measures.
While the relevant measures are important for the
continuity of the public services, they obtain an application area in case of the failure of receiving economic
costs which shall be collected by everyone in proportion to their financial power according to the principle of tax generality. The principle of continuity of the
public services requires quick proceeding and collection of the receivables in return for these services as
beneficiaries. Due to the fact that it restricts the right
of property of individuals, this necessity is only possible within the legislatorial basis and if it is suitable to
the principle of proportionality. It is the reason that
the aforesaid precautionary measures are determined
numerus clausus by the law maker. A different procedure cannot be settled to anyone under any name other
than these methods applied for the proceeding and collection of the public receivables provided with privileged protections.
BIBLIOGRAPHY
Ali Sağır, Türk Vergi Hukukunda Kamu Alacaklarının Korunması, Celal Bayar Üniversitesi Yüksek Lisans Tezi, Manisa, 2011.
Akif Erginay, Vergi Hukuku, 5th Edition, Ankara 1976. Prof. Dr. Turgut Akıntürk, Medeni Hukuk, 13th Edition, 2008.
Yusuf Yiğit, Kamu Alacaklarının Korunması, İstanbul Üniversitesi Yüksek Lisans Tezi, İstanbul, 2005.
Bülent Demirtaşoğlu, Tasarrufun İptali Davası Özelinde Kamu Alacaklarının Korunması Yöntemleri, Pamukkale Üniversitesi Yüksek Lisans Tezi, Denizli, 2011.
Mine Uzun Çam, Kamu Alacağının Korunmasında Tasarrufun İptali Davaları, Seçkin Yayınevi.
Jale Ceylan Şarlak, Türk Vergi Hukukunda ihtiyati haciz ve ihtiyati tahakkuk (105 page), Ankara Üniversitesi.
Binnur Çelik, Kamu Alacaklarının Takip ve Tahsil Hukuku (Vergi İcra Hukuku), Oniki Levha Yayıncılık.
Murat Ozden, Kamu Alacaklarında Rüçhan Hakkı, Maliye Postası, 15 Şubat 1996. https://alonot.com/amme-alacaklarinin-tahsil-usulu-hakkinda-kanun-ders-notlari/
Turgut Candan, Açıklamalı Amme Alacaklarının Tahsil Usulü Hakkında Kanun, Yetkin Basımevi.
FOOTNOTE
1 Ali Sağır, Türk Vergi Hukukunda Kamu Alacaklarının Korunması, Celal Bayar Üniversitesi Yüksek Lisans Tezi, Manisa, 2011.
2 Akif Erginay, Vergi Hukuku, B. 5, Ankara 1976, p.3
3 Prof. Dr. Turgut Akıntürk, Medeni Hukuk, 13th Edition, 2008, p.25
4 Yusuf Yiğit, Kamu Alacaklarının Korunması, İstanbul Üniversitesi Yüksek Lisans Tezi, İstanbul, 2005.
5 Article 9 of The Law No 6183
6 Bülent Demirtaşoğlu, Tasarrufun İptali Davası Özelinde Kamu Alacaklarının Korunması Yöntemleri, Pamukkale Üniversitesi Yüksek Lisans Tezi, Denizli, 2011.
7 Article 13 of The Law No 6183.
8 Mine Uzun Çam, Kamu Alacağının Korunmasında Tasarrufun İptali Davaları, Seçkin Yayınevi, p.36
9 Article 14 of The Law No 6183
10 Jale Ceylan Şarlak, Türk Vergi Hukukunda ihtiyati haciz ve ihtiyati tahakkuk p. 105, Ankara Üniversitesi, p.64
11 Article 15 of The Law No 6183
12 Şarlak p. 66
13 Article 21 of The Law No 6183
14 Binnur Çelik, Kamu Alacaklarının Takip ve Tahsil Hukuku (Vergi İcra Hukuku), Oniki Levha Yayıncılık, p.103
15 Murat ÖZDEN, Kamu Alacaklarında Rüçhan Hakkı, Maliye Postası, 15 Şubat 1996, p.84
16 https://alonot.com/amme-alacaklarinin-tahsilusulu-hakkinda-kanun-ders-notlari/ Last acces date: 19.10.2018)
17 Article 22 of The Law No 6183
18 Turgut Candan, Açıklamalı Amme Alacaklarının Tahsil Usulü Hakkında Kanun, Yetkin Basımevi, p.153
19 Article 27 of The Law No 6183
