Press Release No: Plenary Assembly 1/18
05.01.2018

PRESS RELEASE CONCERNING THE RULE BARRING TAX PAYERS TO FILE A LAWSUIT AGAINST THE DECLARED TAX BASES AND THE TAXES LEVIED ACCORDINGLY

The Constitutional Court dismissed, at its plenary meeting on 12.7.2017, the request for the annulment of the first sentence of Article 378 § 2 of the law no 213 dated 04.01.1961 on the tax procedure law

Rule requested to be annulled

The contested rule provides that tax payers may not file a law suit against the declared tax bases and the taxes levied accordingly.

Grounds for the request

In summary, it is stated in the petition that although it is possible to file a law suit against the taxes levied according to the declaration made with a reservation within the legal period, under the impugned rule it is not possible to add a reservation to the delayed declarations —known as corrective declaration— and, therefore, there is no possibility to file a law suit against corrective declarations. It is alleged that this situation is against the equality before law, legal security and principle of clarity, and it limits the right to legal remedies. Accordingly, the contested rule allegedly violates Articles 2, 10, 13 and 36 of the Constitution.  

The Court’s Assessment

In brief, the Constitutional Court made the following assessments:

Legal actions against the application of the tax legislation are regulated in Article 378 of the law no. 213.  Prerequisites of filing a lawsuit before tax courts is that the tax be levied, the fine be issued, the decisions of the alteration and valuation commissions be notified, withhold taxes be paid to the beneficiaries and the tax be deducted by the party who made the payment.

In the second paragraph, which also includes the contested provision, it is stipulated that taxpayers may not file a lawsuit against the tax bases they declare and the taxes assessed accordingly, save the provisions of the law on tax mistakes.

Taxation based on declaration is based on the trust to the taxpayers.  In this system, each taxpayer calculates the base of his/her own tax himself/herself.  The administration assesses and levies the tax based on taxpayers’ declaration. The rule basically prohibits the objection of taxpayers against their own declarations.

It is clear that the impugned rule, which stipulates that taxpayers cannot sue against the tax bases and the taxes levied within this scope, interferes with the "right of access to the court", and, therefore, with the right to a fair trial. The tax system adopted in the Turkey is based on levy assessed on declaration. In this method, the taxpayer declares tax base and the tax administration makes the tax assessment based on the declared tax base. The contested rule prohibits taxpayers from filing a lawsuit against their own declarations. As a matter of fact, there is no legal benefit for a person to file a lawsuit against his/her own statement. Moreover, the contested rule states that tax mistakes constitute an exception the bar.

There exists another exception to the rule with respect to tax declarations made with reservations, which emerged in practice and indirectly regulated in Article 27 (4) of the law no. 2577 dated 6.01.1982. 

The contested rule limits the opportunity to challenge tax bases before courts on the ground whether the income of the taxpayers are subject to taxation due to exceptions, exemptions and similar reasons.  However, when considered together with the exceptions, it is concluded that the rule does not infringe on the essence of the right of access to the court and does not constitute an unproportionate interference with the right to legal remedy. 

The questions whether a law suit can be brought against tax declarations with reservations —basically arising from the issues such as what types of declarations are subject to reservations or whether delayed declarations can be subject to reservations— primarily relates to reservations rather than the contested rule. As in the concrete case, the questions whether corrective declarations that emerged in practice can be subject to reservations or whether corrective declarations with reservations can be subject to a lawsuit do not arise under the contested rule; rather, those questions relate to the exception which is provided in Article 27 paragraph 4 of law no 2577.

In addition, despite the allegation that the divergence on the case-law —on the issue whether delayed tax declarations can be subject to reservations— contradicts the Constitution, a divergence in case-law itself does not present a constitutional conflict considering that it stems from the nature adjudication and there exists legal remedies to resolve such differences.

Consequently, the Court dismissed the annulment request as it found no violation of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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