ABSTRACT
An invoice is an important document enabling the ordinary and fast flow of commercial life. An invoice is a commercial document based in commercial law and is a written document in the law of evidence. An invoice gains the quality of definitive evidence in disputes due to the fact that it is a written document and due to the presumption of the legislator envisaged for the invoice. In practice, due to the fact that an invoice is a very common document in commercial life, one can encounter various situations related to invoices. Since this document, which shows the value of goods sold or services offered and whether a debt has been performed or not and is frequently used by traders, is issued without providing the conditions determined by the law for the purpose of gaining benefits, certain penal sanctions are provided for to prevent unlawful conditions.An invoice is one of the most frequently encountered documents in the ordinary flow of commercial life. An invoice is a critical document in terms of relations between the government and tax payers as it contains the value of goods or services seen and verifies the taxpayers’ tax rolls.
I. INTRODUCTION
An invoice is a bill of accounts given to a purchaser by a seller in commercial sales and indicates the supply, size, price of goods and services performed1. The Supreme Court gives the following definition of an invoice: “a commercial document that is an account compass indicating the quantity, characteristics, size, price and other matters or services performed by the supplier to the purchaser in commercial sales2.”
In this regard, an invoice is one of the most frequently encountered documents in the ordinary flow of commercial life. An invoice is a critical document in terms of relations between the government and tax payers as it contains the value of goods or services seen and verifies the taxpayers’ tax rolls. In Turkish law, the obligation to draw up an invoice is imposed on merchants as a result of a sale or service provided, in accordance with Article 232 of Tax Procedure Law No. 213 (TPL)3. Likewise, the fact that an invoice might constitute evidence both for and against the issuer reveals the importance of the invoice in dispute resolution.
Because the scope of an invoice is not sufficiently determined by the legislator and there are differences in opinion in the doctrine on the elements that should be included in an invoice leading to different situations in practice, legal debates on these issue still continue even today. Because of the development of different practices and the differences of opinion in the doctrine, the Supreme Court’s opinions and those in the doctrine regarding issues such as the quality of evidence and conclusive force of invoices and their use are crucial in the resolution of disputes.
This study firstly examines the legal nature of invoices by considering the regulations regarding within the scope in Turkish Law. Then, the nature of invoices as evidence and power of proof in dispute resolutions is analyzed. Following that, the use of invoices in practice and the results of this are examined. Finally, false invoices (also known in practice as “nylon invoices”) are discussed.
II. INVOICES UNDER TURKISH LAW AND THEIR LEGAL CHARACTERISTICS
A. Invoices Under Turkish Law
Within the scope of Turkish Law, regulations regarding invoices are encountered in Turkish Commercial Code No. 6102 (TCC)4 and the TPL. The TCC includes a presumption of invoices without any definition regarding invoices whereas the definition of invoices is made in Article 229 of the TPL. Pursuant to this Article, an invoice “…is a commercial document given to the customer by the merchant who sells the commodity or performs the profession in order to show the amount owed by the customer in return for the goods sold or the work done.” As might be understood by the definition, an invoice is a document regarding the performance of debts arising from a contract between parties.
Based on the definitions above, an invoice, which might be defined as a commercial document related to the execution phase of a contract, is a document that merchants are obliged to give to the opposing party in their sales and also to demand and receive from the other party in according to Article 232 of the TPL. In this regard, it is necessary to evaluate the provisions of the TCC regarding invoices, including the regulations related to merchants.
Within the scope of the TCC, the invoice is firstly regulated under Article 21. According to Article 21/1 of the TCC, “The counter party might request an invoice from the merchant who has sold the goods, performed the service or benefited in the context of its own commercial enterprise and if the price has been paid, to be shown the price on it.” According to the provision, a merchant is obliged to issue an invoice and give it to the counter party upon the request of the person who sells goods or provides services. Based on this Article, it might be interpreted that the merchant is only obliged to issue an invoice in the event of a request from the counter party. On the other hand, Article 232 of the TPL states that first, and second-class merchants are obliged to use invoices regardless of the request of the other party. While the obligation of merchants to use invoices under the TCC is dependent on the request of the other party, within the scope of the TPL, first- and second-class merchants5 have an obligation arising from the law to use invoices.
As well as the definition of invoices, the TCC also does not define the form and order of an invoice and the relevant regulations are set out in Articles 230 and 231 of the TPL. The minimum elements6 that must be included in an invoice are specified in Article 230 of the TPL and invoices that do not include these minimum elements are deemed uncodified “in terms of tax laws” according to Article 227/3 of the TPL. From the expression “in terms of tax laws” in the provision, it might be interpreted that an invoice that does not contain the minimum elements specified in Article 230 of the TPL be a valid document under the TCC. Even though there are authors of this view in the doctrine, since the provisions regarding the content of an invoice are not regulated under the TCC and the minimum elements that must be included in an invoice are only regulated under the TPL, we are of the opinion that unfulfillment of the terms regarding the issuance of an invoice do not create an invoice that is valid under any law of the Republic of Turkey7.
However, with Article 231/5 of the TPL, “The invoice is issued within a maximum of seven days from the date of delivery of the goods or service”, imposing a time requirement for merchants who are obliged to use invoices. According to the following sentence in the provision, invoices that are not issued within seven days shall be deemed uncodified8. In light of all these explanations, in order for there to exist a valid invoice under Turkish Law, there must be an invoice consisting of the minimum elements specified in Article 230 of the TPL and an accounting roll that is issued within seven days from the day the goods are delivered or the service is provided.
B. E-Invoice and E-Archive Invoice
The continual development of technology today results in innovations in commercial life. Since an invoice is issued as a paper document, circulation of an invoice between merchants and the storage of invoices is difficult as many transactions are carried out on the internet. It has become a necessity to upload invoices to the electronic environment in order to protect the fast flow of commercial life. Within the scope of Turkish Law, this need is satisfied with the VUK General Communiqué No.509 (Communiqué)9.
According to Article IV.1.1. of the Communique, an e-invoice allows the invoice to be issued as an electronic document rather than paper and to be forwarded to the addressee, stored, and presented in the electronic environment. In accordance with this Article, an e-invoice is not a new document separate from the invoice; in other words, it has the same legal characteristics as the paper invoice. For this reason, an e-invoice must also carry the minimum elements stated in Article 230 of the TPL and must be issued within seven days in accordance with Article 231 of the TPL. Although the data matrix or barcode required for querying, verifying, and displaying an e-invoice is regulated regarding the minimum elements of the e-invoice in Article IV.1.3. of the Communiqué, the said provision is parallel to the regulation in Article 230 of the TPL. However, there are some differences between invoices and e-invoices. While first- and second-class merchants are obliged to use invoices according to Article 232 of the TPL, it is optional for taxpayers excluding those stated10 in Article IV.1.4. of the Communiqué to implement an e-invoice. In other words, while first- and second-class merchants are obliged to use invoices, if the merchants in question are not among the taxpayers stated in Article IV.1.4. of the Communiqué, they are not obliged to implement an e-invoice as this remains optional.
In addition, as well as e-invoices, the Communiqué refers to an “e-archive invoice”. According to the definition in the Communiqué, an e-archive invoice refers to “electronic invoices created electronically and excluding e-invoices”. Based on this definition, it might be said that the transfer of invoices issued by taxpayers who do not benefit from the e-invoice implementation to the electronic environment is called an e-archive invoice. In accordance with the same article of the Communiqué, taxpayers who are included in an e-archive invoice, must issue invoices to taxpayers included in the e-invoice implementation or non-taxpayers as e-invoices. In accordance with Article IV.2.1. of the Communiqué, an e-archive invoice has the same legal characteristics as a paper invoice issued under the TCC and TPL. As with e-invoice implementation, e-archive invoice implementation is optional, except for taxpayers11 who are obliged to be included in the Communiqué, and the elements that an e-archive invoice should contain are listed in Article IV.2.3. of the Communiqué. Since it is stated that an e-archive invoice has the same legal characteristics as a paper invoice, e-archive invoices that do not include the elements listed in the Communiqué or are not issued within seven days pursuant to Article 231 of the TPL, will be deemed uncodified.
C. Legal Characteristic of Invoices
Under the TCC, invoices are regulated under the heading “Provisions of being a Merchant”. In this regard, Article 21 of the TCC stipulates that an invoice can be requested from a merchant who sells a good or service and a period of eight days is given to the recipient of the invoice to object to its content. Article 21/1 of the TCC gives the person who receives goods or services from a merchant the right to request an invoice documenting this good or service. Article 21/2 of the TCC creates a disputable presumption that the content of the relevant invoice shall be deemed to have been accepted by the person who receives the invoice if that person does not object to the content of the invoice within eight days.
The TPL provides a much more detailed regulation compared to the TCC by defining the invoice, specifying the minimum elements to be included, stating the rules to be followed during issuance, and the persons who are obliged to issue an invoice. In addition, the Communiqué states that e-invoices and e-archive invoices must have the same legal characteristics as the paper invoice issued under the TCC and TPL.
According to Article 21 of the TCC and Article 232 of the TPL, an invoice is a document to be issued by merchants. Since in the TCC the issuance of an invoice is regulated under the heading "Provisions of being a Merchant", it is argued in the doctrine that the prerequisite for the implementation of the 21/2 provision of the TCC is that both parties should be merchants, and the goods sold or services offered must be related to the commercial enterprises of those merchants12. In other words, anyone is able to request an invoice from a merchant; however, the presumption in Article 21/2 of the TCC is only applicable in cases where both parties are merchants and sell, manufacture or operate goods as part of their commercial enterprise13. In the scope of the TPL, invoices are regulated as documents that help to determine the income and expenses of taxpayers. Therefore, another view in the doctrine is that in order for the presumption regarding the invoice to be applied, it is not necessary for both parties to be merchants or to be related to the commercial enterprises of the goods or services offered14.
We are of the opinion that the purpose of the legislator in regulating invoices under the heading "Provisions of being a Merchant" within the scope of the TCC is that the results of the ordinary presumption, which emerges from Article 21/2 of the TCC, only apply to merchants. For this reason, we agree with the view that both parties should be merchants and the goods sold or services offered should be related to the commercial enterprises in order to apply the presumption provisions regarding invoices in the TCC. As a result, an invoice is of the nature of a document that merchants are obliged to use in commercial transactions, showing the content of their transaction and determining whether the parties have performed their actions.
III. EVIDENTIAL VALUE AND CONCLUSIVE FORCE OF AN INVOICE
A. Proof and Evidence Within the Scope of Code of Civil Procedure Numbered 610015
Pursuant to Article 187 of the CCP, “The subject of proof consists of contingencies which the parties cannot agree on and could be effective in resolving the dispute and evidence is adduced in order to prove these contingencies.” In other words, parties to a dispute must prove their claims and submit evidence accepted in the CCP to court to show proof in order to win the case. However, as it is clearly stated in the law, since the contingencies known or acknowledged by all are not considered controversial, there is no need for these contingencies to be proved. Regarding who will prove what, Article 190 of the CCP states that “the party that claims rights in its favor from the legal conclusion linked to the alleged contingency” is responsible for proving its claim. Moreover, parties to a dispute use instruments called “evidence” in order to prove their claims. Evidence as regulated in CCP is acknowledgement, final judgement, document and deed, oath, witness, expert examining, viewing and learned opinion. Although the CCP lists some evidence, these are not limited in number (numerus clausus). With Article 192 of the CCP, the opportunity to use evidence unregulated by the CCP has been provided, except in cases where the CCP states that it is obligatory to prove with particular evidence. This provision regulates that in cases where there is no requirement to prove by deed, claims could be proved with evidence other than those stated in the CCP “provided that they have been obtained in rational, logical and legal ways16”.
The distinction of “conclusive evidence-discretionary evidence” is accepted in terms of evidence stated in the CCP. According to this distinction, when acknowledgement, final judgement, document and deed and oath, with the characteristics of conclusive evidence, is submitted by a party in order to prove its claim, the judge is bound by this evidence and has no discretion in terms of this evidence17. Other evidence stated in the CCP are discretionary evidence and the judge will appreciate the conclusive force of this evidence.
B. Evidential Value of an Invoice
Since invoices are very common documents in practice, it would be appropriate to examine the evidential value of an invoice in terms of the law of proof. In practice, the Supreme Court has decided that an invoice as a document relating to the execution stage of a contract, cannot solely be proof of the existence of the contractual relationship, and an evaluation of the commercial books of merchants is required18. Therefore, before explaining the evidential value of invoices, it is useful to look at the regulations regarding merchants’ commercial books.
Regulations regarding the commercial books that can be accepted as evidence are included in Article 222 of the CCP. Pursuant to the second paragraph of this provision, only commercial books that are duly kept complete, have opening and closing approvals, and contain records that confirm each other can be accepted as evidence in lawsuits. In accordance with Article 222/3 of the CCP, in order for commercial books which have been accepted as evidence to be used in favor of the owner, the records in these books must not contradict the records in the books of the opposing party or the opposing party must refrain from submitting its own books or it must have been proved by conclusive evidence that the records in the books of the opposing party do not show the real situation. According to the fourth paragraph of the Article, books which do not have opening and closing approvals or whose records do not confirm each other will be accepted as evidence against their owners. Although under normal circumstances it is not possible for a document issued by a person to be used as evidence in favor of this person, commercial books and, under certain conditions, invoices constitute an exception to this rule19.
In relation to this, Article 21/2 of the TCC states the following regarding invoices:
“If the recipient of an invoice has not made an objection about the content of the invoice within eight days from the date of receipt, it is deemed to have accepted this content.”
As per this provision, the Supreme Court is of the opinion that an invoice is an instrument of proof and an invoice whose content has not been objected to within the appropriate time provides a presumption in favor of the issuer and to the detriment of the invoice20 since it was meant to protect the issuer as the invoicee was given the right to examine the content of and object to the invoice after receiving it. Once the period for objecting to the content of an invoice is passed, a claim can no longer be proved based on the invoice; it must present other evidence21.
In other words, Article 21/2 of the TCC, which is applied when a person who receives an invoice does not object to its content within eight days, gives written evidence value to invoices22. Depending on whether the content of an invoice is objected to or not within the legal period, the invoice can be used as evidence to the detriment of both the issuer and the invoice23. However, in this case, an invoice whose content has not been object ed to should reflect the terms of the contract between the parties. Whereas, if there is a written contract between the parties but the invoice issued reflects different terms from the contract terms, the invoice cannot be deemed to have accepted the content of the invoice even if he/she did not object to the content of the invoice within the legal period. Such content in an invoice means a unilateral change in the terms of the contract between the parties and it is not possible for the parties to change the terms of the contract singly. Besides, the conclusive force of the invoice is as important in the contractual relations established verbally between the parties as well as in written contracts and can be determined on the content of the contractual relationship between the parties.
IV. THE INVOICE IN PRACTICE
Although the legal nature and scope of an invoice has been explained above, in practice, many problems are encountered with regard to invoices other than those issues regulated by the legislator. Below, information is presented regarding some of the situations encountered in practice regarding invoices and the position of the Supreme Court and the doctrine regarding these situations.
A. Invoices Sent Without being Based on any Sort of Relation
As mentioned above, paragraph 1 of Article 21 of the TCC regulates the request for an invoice from the other party by a merchant who has sold, produced, performed a business or benefited in the context of his/her commercial enterprise, and if the price has been paid, he/she may also request this to be shown on the invoice. Accordingly, in order for an invoice to exist, there must be a previously established contractual relationship between the parties24. This issue has also been ruled out in many Supreme Court decisions25. In this regard, invoices are not a document regarding the establishment of a contract like the “confirmation letter” regulated in paragraph 3 of Article 21 of the TCC but, rather, a document related to the execution stage of the contract26.
Given the information above, although there is no contract between the parties, the issuance of an invoice, the payment of this invoice, and the acceptance of the content of the invoice is not evidence of a valid contract between the parties. In other words, the invoice alone is not conducive proof of a contractual relationship27. The party issuing the invoice is obliged to prove the existence of a contract.
In addition, without a contract between the parties, the document sent as an invoice, if it meets its conditions, may not be an invoice but a proposal (suggestion)28. In this respect, if an invoice sent without a valid contract between the parties is not objected to within the time limit, the content of the invoice is not deemed to be final because the document sent is not a document that legally qualifies as an "invoice". In this case, Article 6 of the Turkish Code of Obligations (TCO) numbered 609829 is activated. Article 6 of the TCO is as follows: “If the proposer does not have to wait for a clear acceptance by law or the nature of the business or the situation, the contract is deemed to have been established if the proposal is not rejected in an appropriate time.”
Hence, when one party sends an invoice to the opposing party without a contract, if the opposing party does not object to this invoice or pays the amount specified in the invoice, it might be concluded that a contract has been implicitly established between the parties. Sometimes, in business relations established between parties, there may be a tradition that silence is considered acceptance, and, according to the rule of honesty, silence can be considered acceptance30. However, in determining whether an invoice has the nature of requisition and whether an objection to the invoice gives rise to a contractual relationship between the parties, the conditions of the situation, the rule of honesty or whether there is a custom between the parties should be examined separately for each event.
B. Delay Interest
Another implementation that emerges in practice and leads to a difference of opinion in doctrine and judicial decisions is the records of delay interest on invoices. There is no definition in Turkish legislation regarding delay interest. The Turkish Language Association defines delay as “the period, deadline, delay for the performance of a job or the payment of a debt”. In this respect, delay interest might be defined as the additional receivable added to the original receivable if the cost of the goods sold or the service provided is not paid on time. In addition, the Supreme Court defines delay interest as “the addition imposed on the cost of the goods after a certain maturity against the possibility of late payment of the cost of the goods to the debtor”31.
The issue that causes a difference of opinion on delay interest is whether the provision on the delay interest is finalized if the provisions regarding the delay interest are included in the invoice but not included in the agreement and the opposing party does not object to the invoice. The point to be examined here is whether the delay interest shown on the invoice is among the matters that should be included in the content of the invoice. There are many decisions of the Supreme Court on this subject. The most important is “Decision of the Supreme Court Jurisprudence Unification Law General Assembly dated 27.06.2003 with 2001/1 basis and 2003/1 decision”. This decision stipulates that: · In order for the party who issued the invoice to benefit from the presumption mentioned in Article 21/2 of the TCC32, there should be a contractual relationship between the issuer of the invoice and the party to whom the invoice is issued, and the invoice should be regulated in relation to the execution of the relevant contract, · Since an invoice is related to the fulfilment phase of a contract, the presumption regulated in Article 21/2 of the TCC might only be implemented on matters that are normally in relation to the fulfilment phase of the contract, such as the type, number, and price of goods sold, · If the records not in place at the stage of establishment of a contract change the contract and aggravate the situation for the opposing party are later included in the invoice, accepting these records from the obligatory and ordinary content of the invoice shall be contrary to the form of the relevant regulation as well as its purpose even if it is not objected by the addressee, · Therefore, since the invoice was not objected within the legal period, it was decided that the delay interest could not be requested.
We also agree with this decision of the Supreme Court, dated 27.06.2003, with the principal number 2001/1 and decision number 2003/1. To include an issue in the invoice that is not decided by the parties to the contract is an act that may harm the flow of commercial life. It may damage the reliability of commercial life in the country if such a record benefits from the presumption in Article 21/2 of the TCC. In addition, although the parties may not have agreed on a delay interest in the contract, the party who declared that he/she shall apply a delay interest on the invoice, and if he/she benefits from the presumption stated in Article 21/2 of the TCC, the contract between the parties will have been changed unilaterally. For these reasons, we find the decision of the joint chambers of the Supreme Court above appropriate.
It should also be stated that there are also authors in the doctrine who disagree with the Decision of the Joint Chambers of the Supreme Court and the opinion explained above. The dissenting opinion of the relevant Supreme Court decision argued that the delay interest was a price difference that arose because one of the parties performed its action later than the other party, and it was argued that it was not a default interest but an element of the price33. Dictum accepting delay interest as an element of the price is of the opinion that the record regarding the delay interest shall fall within the scope of the presumption of 21/2 TCC, even if the delay interest is reflected in the invoice due to the fact that, in Article 230 of the TPL, the amount is counted as one of the ordinary elements of an invoice.
C. Storage of an Invoice
In the event of a dispute between the parties, it is very important to conclude the dispute clearly and to keep the invoices issued by the merchants for the security of commercial life. Also, keeping invoices is important for the proper audit of taxpayers. For this reason, there are provisions regarding the storage of invoices both in the TPL and the TCC.
According to Article 64/2 of the TCC, a merchant is obliged to keep a photocopy, carbon copy, microfiche, computer record or similar written copy of all documents sent regarding her/his business in written, visual or electronic form. In addition, in subparagraph (d) of Article 82/1 of the TCC, reference is made to Article 64/1 of the TCC and it is regulated in Article 82/5 of the TCC that the relevant documents shall be kept for ten years. Article 64/1 of the TCC regulates that every merchant must keep a commercial book. It is also regulated that merchants should keep the relevant books, commercial transactions and the economic and financial status of their commercial enterprise, their debt and receivable relations and the results obtained in each accounting period in such a way as to give an idea to the TCC and third party experts of their activities and financial status. In line with these provisions, each merchant is obliged to keep invoices for ten years in accordance with the provisions mentioned above.
In addition, those who are obliged to keep books according to the TPL pursuant to Article 253 of the TPL are obliged to keep the books and documents written in the third part for five years. In this respect, although a shorter period is stipulated than in the TCC, taxpayers are obliged to keep invoices for five years under the TPL.
D. Loss of an Invoice
Actions to be taken by merchants in the case of loss of an invoice are regulated in Article 82/7 of the TCC. According to this, if the books and documents that a merchant is obliged to keep are lost by reason of disaster, such as fire, flood or earthquake, or theft, the relevant merchant must request a loss certificate from the court of the place where the commercial enterprise is located within fifteen days from the date of learning of the loss, a time period specified in Article 82/5 of the TCC. The relevant fifteen-day period is a foreclosure34. According to the doctrine and judicial decisions, a merchant might not benefit from this right if he/she is at fault regarding the loss of the relevant documents35.
E. Correction of an Invoice
Pursuant to Article 217 of the TPL, incorrectly written numbers and words in books and records can be corrected by crossing out the incorrect words or numerals and writing the corrections to the top or side of the relevant section. In this respect, if there is an incorrect expression (faults in specifying the price, wrong type of goods, etc.) in an invoice, it might be corrected by crossing out the incorrect statement, so that the false statement remains shown, and writing the correction at the top or side of the relevant section.
F. Cancellation of an Invoice
There is no provision in Turkish legislation regarding the cancellation of an invoice. However, in the ordinary flow of business life, an invoice may need to be cancelled. This gap could be filled by drawing a double line sideways on the invoice to be cancelled, writing “CANCELLED” between the lines and signing the relevant invoice36.
V. FALSE INVOICES
Just like invoices, a false invoice (known in practice as a “nylon invoice”)37 is not defined in Turkish legislation. The origin of the word false is Persian and has the meaning of “made by imitating the original, imitated for deceit, fake, invented, not real”38. In this context, a false invoice could be defined as an invoice issued without any commercial or legal relationship between the parties or without any exchange of goods or services between the parties39.
Penal provisions regarding false invoices are regulated under Article 359 of the TPL. Subclause (a) of Article 359 of the TPL regulates “books and records which are kept and subject to the obligation to be stored and submitted according to tax laws”. Correspondingly, sub-clause (b) of Article 359 of the TPL includes a regulation regarding the books and records which are kept and are subject to the obligation to be stored and submitted according to tax laws. The subject matter of Article 359 of the TPL is provisions regarding the purchase and sale of goods and services regulated between Articles 229 and 240 of the TPL. In this respect, even though it is not defined under the TPL nor expressly stated under Article 359 of the TPL, it is evaluated in the doctrine that Article 359 of the TPL should also be applied to false invoices40.
The first paragraph of sub-clause (a) Article 359 of the TPL regulates that those who (i) make calculation and accounting frauds in books and records which are kept and subject to the obligation to be stored and submitted according to tax laws, (ii) open accounts on behalf of people who are not real or not related to the transaction subject to the record, or (iii) record the calculations and transactions required to be recorded in books completely or partially to other books, documents or recording mediums will be sentenced to eighteen months to three years of imprisonment. Correspondingly, it is stated under the second paragraph of subclause (a) of Article 359 of the TPL that those who (i) falsify, (ii) conceal the books, records and documents which are kept and subject to the obligation to be stored and submitted according to tax laws or (iii) prepare or use misleading documents in terms of their content will be sentenced to between eighteen months and three years of imprisonment.
In addition to sub-clause (a) of Article 359 of the TPL, sub-clause (b) of Article 359 of the TPL states that those who (i) destroy books, records and documents which are kept and subject to the obligation to be stored and submitted according to tax laws, (ii) destroy book pages and replace them with other pages, (iii) draft the original or the copy of the documents completely or partially false, or (iv) use those documents will be sentenced to between three and five years of imprisonment. It is clear that different crimes and penalties are mentioned in sub-clauses (a) and (b) of Article 359 of the TPL regarding false invoices. In this respect, determination of which acts will be evaluated under which clause is important as a requirement of the principle of legality in crime and punishment.
The doctrine accepts that misleading documents are regulated under the second paragraph of sub-clause (a) of Article 359 of the TPL and false documents are regulated under sub-clause (b) of Article 359 of the TPL41. Documents are false when these documents are issued as if there is a relationship between the parties without there being a legal or commercial relationship, and documents are misleading when there is an existing legal or commercial relationship between the parties but the content of the relationship is expressed differently42. In terms of invoices, cases where an invoice is issued without the existence of any relationship between the parties, will be evaluated within sub-clause (a) of Article 359 of the TPL. However, if the existing relationship between the parties is not stated correctly, for example stating the cost of the goods or the service incorrectly or stating a seat has been sold when actually a cabinet was sold, subclause (b) of Article 359 of TPL is applied.
As a matter of fact, false invoices have other legal consequences besides those under the TPL. For example, paragraph 3 of Article 222 of the CCP regulates that merchants’ commercial books can be used as an evidence in favor of the owner in commercial cases. However, paragraph 2 of Article 222 of the CCP states that commercial books should be kept completely and duly in order to be used as an evidence in favor of the owner. Since documents such as invoices constitute the basis of the records in commercial books43, if the records are entered in the commercial books based on false invoices, this may be considered a violation of paragraph 2 of Article 222 of the CCP and the opportunity to use the commercial books in favor of the owner as an evidence may be eliminated.
Finally, in addition to failure to use the commercial books as an evidence, there are other sanctions regarding false invoices such as negligent bankruptcy claims, rejec - tion of concordat requests, cancellation of an investment incentive certificate (if any), and exposure to various financial sanctions due to the cancellation of such a certificate, a possible ban of the relevant person from public tenders, prohibition of the person concerned from performing public duties, and a ban from certain professions such as advocacy, notary, and medicine.
VI. CONCLUSION
An invoice is an important document in terms of documenting goods sold or ser - vices provided, taxation of these services, and verification of the goods sold or ser - vices provided by merchants in the rapid flow of commercial life. Although an invoice is a document frequently encountered in practice, the gaps emerging from insuffi - cient regulations regarding invoices are be - ing filled with Supreme Court decisions and doctrinal opinions in practice. In addition to its legal characteristics and conclusive force, invoices issued without the existence of a relationship between the parties, records re - garding delay interest, actions related to the maintenance of the invoice, and efforts to benefit from false invoices in practice shows that the invoice is a document which guides commercial life. Regulations regarding such an important document should be made fully and clearly in the law. With clearer reg - ulations from the legislator, the differences of opinion which arise in practice could be eliminated.
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SAL IH ŞAH I N IZ, Invoice And The Conclusive Force of Invoice. Yeditepe University Institute of Social Sciences, Master Thesis, Istanbul, 2009.
SEV IL BAYAR, Invoice and Conclusive Force of Invoice, Yeditepe University Institute of Social Sciences, Department of Private Law, Master Thesis, Istanbul, 2009.
VILDAN PEKSÖZ, Presumptions and Legal Nature of Invoice in the Scope of Civil Procedure, Istanbul University Institute of Social Sciences, Master Thesis, Istanbul. Penal Department No.3 of the Supreme Court, D. 14.05.2009, B. 2009/5568, D. 2009/8544. Penal Department No.3 of the Supreme Court, D. 29.5.2000, B. 2000/4885, D. 2000/5011. Penal Department No.3 of the Supreme Court, D. 13.06.2012, B. 2012/11680, D. 2012/15068. Penal Department No.11 of the Supreme Court, D. 01.06.2017, B. 2016/4460, D. 2017/4129. Penal Department No.11 of the Supreme Court, D. 18.09.2013, B. 17857, D. 15977. Penal Department No.13 of the Supreme Court, D. 09.03.1999, B. 1998/10118, D. 1999/1668. Penal Department No.15 of the Supreme Court, D. 10.02.2020, B. 2019/11344, D. 2020/1725. Penal Department No.15 of the Supreme Court, D. 15.11.1999, B. 1999/4192, D. 1999/4070. Penal Department No.19 of the Supreme Court, D. 28.11.2008, B. 2008/2791, D. 2008/11670.
FOOTNOTE
1 Şahiniz, Salih, Invoice and The Inclusive Force Of Invoice. Yeditepe University Institute of Social Sciences, Master Thesis, Istanbul, 2009.
2 Supreme Court GAOUC, D. 27.06.2003, B. 2001/1, R. 2003/1.
3 Official Gazette (OG), dated 12.01.1961, numbered 10705.
4 Official Gazette No. 27846 (OG), dated 14.02.2011.
5 Traders in question: TPL art. 177 (First Class Merchants) and art. 178 (Second Class Merchants).
6 In accordance with Article 230 of the Tax Procedure Law, the minimum elements that should be included in the invoice are: 1. Issue date of the invoice, serial and sequence number; 2. The name of the invoice issuer, trade name if any, business address, tax office and account number; 3. Customer’s name, trade name, address, tax office and account number, if any; 4. The type, quantity, price and amount of the good or work; 5. Delivery date and waybill number of the goods sold
7 Bayar, Sevil. Invoice and the Inclusive Force of Invoice, Yeditepe University Institute of Social Sciences, Private Law Department, Master Thesis, İstanbul, 2009, p.80.
8 However, in terms of invoices issued after the period of issuance within the scope of the 231/5 provision of the TPL, the 21/2 provision of the TCC shall also be applied.
9 Official Gazette (OG), dated 10.01.2020 and numbered 31004.
10 The taxpayers who are obliged to switch to e-invoice implementation as per Article 3 of the Communiqué are: 1- Taxpayers whose gross sales revenue (or their sales and gross business revenue) is 5 Million TL and above for the 2018 or following fiscal periods. 2- Manufacture, import, delivery etc. of the goods in the list numbered 1 attached to the Special Consumption Tax Law No. 4760 dated 6/6/2002. taxpayers who obtain a license (including dealership license) from the Energy Market Regulatory Authority (EMRA) due to their activities. 3- Those who manufacture, build and / or import the goods in the list (III) attached to the Special Consumption Tax Law. 4- A real or legal person intermediary service that provides the electronic commerce environment to carry out the economic and commercial activities of others, as defined in the Law on the Regulation of Electronic Commerce dated 23/10/2014 and numbered 6563, in order to mediate the purchase, sale, lease or distribution of goods or services. providers, owners or operators of internet sites that publish advertisements on real and legal persons regarding the sale or lease of real estate, motor vehicles, and internet advertising service intermediaries acting as an intermediary for the publication of advertisements on the internet 5- Taxpayers who are engaged in the trade of vegetables and fruits as brokers or tradesmen in accordance with the provisions of the Law on the Regulation of the Trade of Vegetables and Fruits and Other Goods with Sufficient Supply and Demand Depth dated 11/3/2010 and numbered 5957.
11 For the taxpayers in question: Tax Procedure Law General Communiqué no 509, art. IV.2.4.
12 Duru, Meltem, Invoice in the Light of the Decisions of the Supreme Court, Kırıkkale University Institute of Social Sciences, Department of Private Law, Department of Commercial Law, Master Thesis, Kırıkkale, 2019, p. 80.
13 Supreme Court GAOUC, D. 27.06.2003, B. 2001/1, R. 2003/1.
14 Duru, Meltem, Invoice in the Light of the Decisions of the Supreme Court, Kırıkkale University Institute of Social Sciences, Department of Private Law, Department of Commercial Law, Master Thesis, Kırıkkale, 2019, p. 80.
15 Official Gazette (OG) dated 04.02.2011 and numbered 27836.
16 Ramazan Arslan/Ejder Yılmaz/ Sema Taşpınar Ayvaz/Emel Hanağası, Law of Civil Procedure, 6th Edition, Ankara 2020, p. 473.
17 Duru, Meltem, Invoice in Light of Supreme Court Decisions, Kırıkkale University Institute of Social Sciences Department of Private Law Field of Commercial Law, Postgraduate Thesis, Kırıkkale, 2019, p. 94.
18 Civil Chamber No.3 of the Supreme Court, T. 14.05.2009, E. 2009/5568, K. 2009/8544.
19 Nevin İrem Gürbüzer Görmez, Conclusive Force of the Invoice in Light of Supreme Court Decisions, 1st Edition, Ankara 2019, p. 221-222.
20 General Assembly of Civil Chambers on the Unification of Judgements of the Supreme Court, D. 27.06.2003, B. 2001/1, D. 2003/1.
21 Duru, Meltem, Invoice in Light of Supreme Court Decisions, Kırıkkale University Institute of Social Sciences Department of Private Law Field of Commercial Law, Postgraduate Thesis, Kırıkkale, 2019, p. 97.
22 Duru, Meltem, Invoice in Light of Supreme Court Decisions, Kırıkkale University Institute of Social Sciences Department of Private Law Field of Commercial Law, Postgraduate Thesis, Kırıkkale, 2019, p. 97; General Assembly of Civil Chambers on the Unification of Judgements of the Supreme Court, D. 27.06.2003, B. 2001/1, D. 2003/1.
23 General Assembly of Civil Chambers on the Unification of Judgements of the Supreme Court, D. 27.06.2003, B. 2001/1, D. 2003/1.
24 Şahiniz, Salih, Invoice and Conclusive Force of Invoice. Yeditepe University Institute of Social Sciences, Master Thesis, Istanbul, 2009; Alışkan, M, Whether the Uncontested Invoice Shows Whether the Goods Has Been Delivered and the Work Has Been Performed, Marmara University Faculty of Law Journal of Legal Studies, 2016, p. 209; Peksöz, Vildan, Presumptions in the Scope of Civil Procedure and the Legal Nature of Invoice, Istanbul University Institute of Social Sciences, Master’s Thesis, Istanbul, 2014.
25 Penal Department No.3 of the Supreme Court, D. 29.5.2000, B. 2000/4885, D. 2000/5011; Penal Department No. 3 of the Supreme Court, D. 13.06.2012, B. 2012/11680, D. 2012/15068.
26 Alışkan, M, Whether the Uncontested Invoice Shows Whether the Goods Has Been Delivered and the Work Has Been Performed, Marmara University Faculty of Law Journal of Legal Studies, 2016, p. 208; Penal Department No.15 of the Supreme Court, D. 15.11.1999, B. 1999/4192, D. 1999/4070.
27 Penal Department No.19 of the Supreme Court, D. 28.11.2008, B. 2008/2791, D. 2008/11670.
28 General Assembly of Civil Chambers on the Unification of Laws of the Supreme Court, D. 27.06.2003, B. 2001/1, D. 2003/1.
29 Official Gazette (OG) dated 04.02.2011 and numbered 27836.
30 Peksöz, Vildan, Presumptions in the Scope of Civil Procedure and the Legal Nature of Invoice, Istanbul University Institute of Social Sciences, Master’s Thesis, Istanbul, 2014.
31 Assembly of Civil Chambers of the Supreme Court, D. 14.04.1999, B. 1999 / 11-207, D. 1999/215.
32 We would like to state that, in the relevant decision, the former article 23/2 of the Turkish Commercial Code numbered 6762 has been referred. However, since the relevant article in the new Turkish Commercial Code numbered 6102 corresponds to the article 21/2, in this article, the relevant article 21/2 of the Turkish Commercial Code numbered 6102 has been referred to.
33 General Assembly of Civil Chambers on the Unification of Judgements of the Supreme Court, D. 27.06.2003, B. 2001/1, D. 2003/1.
34 Bozer, Ali; Göle, Celal, Commercial Business Law. Banking and Commercial Law Research Institute, Ankara, 2017, p. 297.
35 Bozer, Ali; Göle, Celal, Commercial Business Law. Banking and Commercial Law Research Institute, Ankara, 2017, p. 298; Penal Departmen No.11 of the Supreme Court, D. 18.09.2013, B. 17857, D. 15977.
36 Şahiniz, Salih, Conclusive Force of Invoice and Invoice. Yeditepe University Institute of Social Sciences, Master Thesis, Istanbul, 2009; Duru, Meltem, Invoice in the Light of the Decisions of the Supreme Court, Kırıkkale University Institute of Social Sciences, Department of Private Law, Department of Commercial Law, Master Thesis, Kırıkkale, 2019.
37 As a matter of fact, the Supreme Court uses the expression “nylon invoice” in some of its decisions. See: Penal Department No.15 of the Supreme Court D. 10.02.2020, B. 2019/11344, D. 2020/1725.
38 http://lugatim.com/s/sahte. Access date: 31.01.2021
39 Kurşun, M.F, False Invoice in Tax Criminal Law. Anadolu University, Social Sciences Institute, Eskişehir, 2019.
40 Kurşun, M.F, False Invoice in Tax Criminal Law. Anadolu University, Social Sciences Institute, Eskişehir, 2019.
41 Kurşun, M.F, False Invoice in Tax Criminal Law. Anadolu University, Social Sciences Institute, Eskişehir, 2019.
42 Penal Department No.11 of the Supreme Court T. 01.06.2017, E. 2016/4460, K. 2017/4129.
43 Kurşun, M.F, False Invoice in Tax Criminal Law. Anadolu University, Social Sciences Institute, Eskişehir, 2019.
