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Turkey: A milestone in Turkish tax law: European Court of Human Rights standards

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Zeki Gündüz

Turkish tax law is the subject of the most important court decision to be published in recent times. This decision is the first decision to approach European Court of Human Rights (ECHR) standards, which have been specified in literature and practised for some time now at the Constitutional Court level, and the first to make reference to ECHR property rights. The decision was made after the plaintiff, who lost his case in the courts of first and last instance, took a mistake related to the description of revenue type to the Constitutional Court by way of individual application. The facts of the case are as follows.

The plaintiff made contribution payments by way of the foundation affiliated with the plaintiff and established for the purpose of providing benefits to customers. These contribution payments were considered to be wages in the tax inspection made by tax inspectors. During the first and last instance court stage, the plaintiff claimed that the tax assessment against the "principle of tax legality" and also property rights can only be limited by law.

After the dismissal of the cases contesting the fines assessed, the plaintiff proceeded to the Constitutional Court on the grounds of violation of property rights and right to due process, by way of individual application.

The Constitutional Court's conclusions regarding the merits of the case were as follows.

  • Referring to Protocol Appendix 1 of the ECHR as well as article 35 of the Constitution implies that property rights are not absolute rights and can be limited if it is in the public interest.

  • Intervention is permissible when it is in the public interest, but should be in compliance with laws, and should be proportional. The scope of these matters should be identified and the lawfulness of this intervention should be investigated (these measures were established by referring to ECHR cases).

  • According to ruling cases of the ECHR, compliance with law is the first point which should be examined in an intervention aimed at property rights. Namely, the intervention should be made according to law and the rules related to domestic law should be accessible and predictable.

  • It was highlighted that article 35 of the Constitution is more protectionist than Protocol Appendix 1 of the ECHR, and takes a harder line regarding the principle of tax legality and taxation means statutorily. It was mentioned that accepting the regulations that do not have the force of law also fulfils the principle of legality by interpreting the principle of the limitation of property rights by law extensively is impossible in accordance with article 35 of the Constitution.

It is understood that ECHR standards are implemented effectively and in detail. This decision can be seen as the beginning of a new age and as an important milestone regarding freedom in terms of taxpayer rights under Turkish tax law. This decision should establish taxpayer confidence.

Zeki Gündüz (zeki.gunduz@tr.pwc.com)

PwC Turkey

Tel: + 90 212 326 6080

Website: www.pwc.com.tr

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