POWER OF FILING A SUIT AND REQUESTING FOR A CORRECTION OF THE TAX RESPONSIBLES
Tax responsible party, according to the provision of Tax Procedure Law article 8/2; "In terms of payment of tax, the creditor is the person who is addressed to the creditor tax office". According to this, the tax responsible party is the person who has been charged with tax duties related to the tax debts of others, although it is not related to the taxable event. All rights and duties envisaged for taxpayers are also valid for the tax responsible party. Article 8/4 of the Tax Procedure Law includes the following provision: “The term "taxpayer" in the following articles of this law is also applicable to the tax responsible party.”
Although the Tax Procedure Law regulates that the tax responsible party has all the rights and duties envisaged for the taxpayer, in practice it is observed that tax responsible parties are not equated with the taxpayer in filing a lawsuit and requesting a correction. It is seen that supreme court decisions are stating that tax responsible parties do not have the right to file a lawsuit against tax assessment, and the Ministry of Finance has expressed its opinion that tax responsible parties do not have the authority to request correction against tax errors.1
In an exemplary decision2 of the Council of State, the plaintiff company declared the income tax collected from the education compensation paid to the teachers working under it with reservation. Later, the company filed a lawsuit for the removal of the case accrued on the declared tax base. Tax Court, before proceeding to the merit, Code of Administrative Procedure article 14/3, stating that the petitions should first be examined in terms of merit, has examined the lawsuit petition in terms of capacity under subparagraph c of the relevant paragraph. In this examination, the plaintiff rejected the lawsuit because the responsibility of the plaintiff company ended with the payment of the debt, the working teachers were the ones whose utilities were violated, the tax responsible could not pay the declaration with reservation but could not file a lawsuit later, and that the capacity to file a lawsuit was with the teachers whose personal right was violated.
The Council of State, in its examination, upheld the decision of the local court because of the competence in the lawsuit to be filed with the claim that cancellation and refund of the tax may be the teachers who have an interest in filing the case.3
In a decision4 of the Council of State Tax Law Offices; it is necessary to determine the capacity to file a lawsuit in tax cases according to the Code of Administrative Procedure and Code of Administrative Procedure article 31/2, without prejudice to the Code of Civil Procedure provisions, under the provisions of article 377 of the Tax Procedure Code, the capacity to file a lawsuit as per the provision of this law is not granted only to taxpayers and those who have been fined, article 8 of the Tax Procedure Code states that the term taxpayer is also valid for taxpayers. Hence, it is stated that taxpayers can sue in a condition that the tax has been accrued over the declaration, providing that the tax of tax responsible, like taxpayers, against the levied taxes and fines, is levied, the tax penalty is imposed, the payment has been made to the beneficiaries and the tax has been deducted from the party making the payment in the taxes collected through withholding, it is accrued over the tax bases declared by reservation.5
In the other decisions made by the Council of State, it is occasionally stated that taxpayers have the capacity6 to sue, and there are also some decisions that this capacity7 does not exist. Constitutional Court, in one of its decisions8, has ruled that the company has no victim status, income tax allegedly overpaid by the company is not a tax paid on the company's income, as a current and personal right of the company, which is a private law legal entity, is not directly affected, nor is there a violation of the right of the legal entity in the application made on the claim that the income tax paid by the company by deducting the wages paid to the workers was overpaid since it is a tax that corresponds to the wages deserved by the workers and is paid on the account of the workers, and that it is not authorized in terms of persons because of the same reason.
There is also a dissidence on what should take place in the doctrine. There are opinions with regard that tax disputes are considered as full judicial cases under the provisions of the Administrative Jurisdiction Procedure Act, and therefore, the person whose assets are damaged by the excess taxing is not a tax breaker, since these cases can be sued by those whose rights are harmed, that is, by those whose interests are violated, and that the tax breaker cannot sue due to the inability to act on behalf of the respondents. Likewise, the scope of the duties of taxpayers is specified as the full deduction and payment of taxes and fulfillment of duties under the provisions of Article 11 of the Tax Procedure Law, within the scope of this opinion. Therefore, the right to sue should be limited to a penalized assessment because the tax has been deducted incompletely or not at all. Besides, in the provision of Article 7/2b of the Administrative Judicial Procedure Act, it is interpreted that the sue period for the taxes deducted at the source is arranged according to the right holders, regardless of the tax breakers. The case of the tax breaker to sue will also be against the provisions of Article 15/1-d of the Administrative Jurisdiction Procedure Act and Article 35 of the Legal Practitioners Act. When the case-law of the Council of State is examined, it will be observed that taxpayers do not have the right to sue for taxes with deductions at the source, the right to sue lies only with the taxpayers, a certain agreement is made with the other party, and the tax officer is granted the right to sue in the exceptional cases where the remuneration holder is a foreigner.9
According to the opinion that argues that the tax breaker can sue, it must be accepted without seeking the conditions of Article 2 of the Administrative Judicial Procedure Act that taxpayers can sue because decisions of the Council of State predominantly indicate that the responsible person can sue. After all, the decision of the General Assembly of Tax Courts of the Council of State in 2011 is guiding in this direction, Article 377 of Tax Procedure Law and Article 8/4 of Tax Procedure Law, as a whole. Since granting the right to sue for both the responsible and the taxpayer may cause an unclearness, if the responsible wins the case he/she sued, it is not possible to acknowledge the decisions that do not recognize his legal capacity to keep the refunded tax amount under his/her responsibility. Likewise, if it is considered that the time to sue in the tax jurisdiction is limited and that a case can generally be sued within 30 days since the cases to be sued must separately be sued in a short period one after another and in the meantime, it is possible to merge the cases in question on the grounds of “contact”, it must be stated that the concern claiming that there should not be any contradiction between the judicial decisions, is not appropriate. Under provisions of the Turkish Code of Obligations, it is necessary to go to the institution of negotiorum gestio regarding the refund of tax amounts.10
In our opinion, it would be appropriate for the tax office to have the right to sue not only in cases where a net agreement is made with the other party in line with the Council of State's jurisprudence and situations where the remuneration holder is a foreigner but also in general. No Tax Procedure Law provision gives the responsible the right to sue, and there is no provision limiting this situation in the law text as well. Thus, the best thing to do would be to regulate the taxpayers' right to sue under the provisions of the Tax Procedure Law. However, even if such regulation is not made, by interpreting Article 10 of the Administrative Judicial Procedure Act broadly, even if the liability of the taxpayer is limited to making payments, he/she should at least have the right to sue because the interest of the taxpayer is damaged as it will affect the cash flow. It should be remembered that these responses, which are more organized within the scope of freedom of individuals to seek their rights in terms of this payment liability that is considered as a measure for the public in the collection of the tax, which are relatively more competent in litigation and prosecution, and which are mostly capital companies if it is considered that tax liability is about being responsible for taxes for either individuals and small businesses, whose establishments are not registered or for which it is burdensome to register these institutions, should be given the right to sue.
There are negative opinions11 regarding that the tax responsibility can request a correction, on the one hand, whereas there is a decision12 of the Council of State stating that the tax responsible has the right to request a correction, on the other hand. The Council of State in this decision7 decided that the taxpayer can request a correction for the inadvertently overpaid tax under the 8/4 provision of the Tax Procedure Law.8 According to the provisions of the Tax Procedure Law, there is no special provision regarding the correction request of the taxpayer. Adding a provision concerning prevent unclearness in practice will prevent it to appear.
1 - Öncel, Kumrulu, Çağan, Vergi Hukuku, sf.83
2 - Danıştay 4. Dairesi, 06.04.2000 T. 1999/4832 E. 2000/1330 K.
3 - Taştan Yusuf Ziya, Vergi Hukuku, sf. 123
4 - Danıştay Vergi Dava Daireleri Kurulu, 12.10.2011 T. 2011/390 E. 2011/583 K.
5 - Taştan Yusuf Ziya, Vergi Hukuku, sf. 123
6 - Danıştay 3. Dairesi 15.09.2005 T. 2004/239 E. 2005/1905 K., Danıştay 3. Dairesi 11.03.2010 T. 2008/2797 E. 2010/713 K., Danıştay 3. Dairesi 17.10.2011 T. E:2010/7404 E. 2011/5955 K., Danıştay 4. Dairesi 28.12.1972 T. 1971/5552 E. 1972/141 K., Danıştay 4. Dairesi 28.05.2009 T. 2009/3059 E. 2009/3073 K., Danıştay 4. Dairesi 22.12.2010 T. 2010/3421 E. 2010/6523 K., Danıştay 4. Dairesi 28.11.2011 T. 2011/4349 E. 2011/10312 K.
7 - Danıştay 3. Dairesi 25.12.1984 T. 1984/4075 E. 1984/3527 K., Danıştay 4. Dairesi 23.12.1975 T. 1975/2007 E. 1975/3410 K., Danıştay 4. Dairesi 06.04.2000 T. 1999/4821 E. 2000/1329 K.
8 - Anayasa Mahkemesi 2013/5554 Başvuru Numaralı, 06.02.2014 Karar Tarihli karar
9 - Doğrusöz, Bumin, Vergi Kesenin Dava Hakkı, (http://www.muhasebetr.com/ulusalbasin/haber_oku.php?haber_id=5430)
10 - Yaralı, Levent, Danıştay Kararları Işığında Vergi Kesenlerin Dava Ehliyeti
11 - Kanet, Selim, Vergi Hukuku, sf. 132-133
12 - Danıştay Vergi Dava Daireleri Kurulu 11.04.1997 T. 1995/194 E. 1997/188 K.