Cancellation of Some Provisions of Law No. 7194
A. Examination of the first sentence of paragraph (2) of Article 7 of the Law
7 Of the Law No. 7194. article 7 of Law No. 7194 7. in paragraph (2) of the article; Digital Service providers who are Digital Service Tax payers or authorized representatives in Turkey No. 213 must fulfill their obligations to file a tax return and pay taxes in accordance with the Tax Procedure Law if they do not fulfill these obligations within thirty days from the date of notification to them and from the announcement of this situation on the website of the Revenue Administration, the Ministry of Treasury and Finance decides to block access to the services offered by digital service providers until these obligations are fulfilled, and this decision is sent to the Information Technologies and Communication Authority for notification to the access providers. It is stipulated that access providers must fulfill the requirement of blocking decisions within twenty-four hours from the date of notification.
It has been assessed that the rule, which allows blocking access to services offered by digital service providers, restricts the freedom of enterprise of digital service providers.
The measure envisaged by the subject rule is a special tax security application for digital service taxpayers. Therefore, the rule serves the purpose of ensuring the realization of the public good targeted by the taxation activity. Accordingly, it is understood that the rule is based on a constitutionally legitimate purpose.
On the other hand, due to the intangible nature of the digital economy, the traditional tax system and rules are insufficient for the effective taxation of this sector. Accordingly, blocking access to the services provided by digital service providers who are digital service payers who do not fulfill their obligations to file tax returns and pay taxes in accordance with Law No. 213 is considered appropriate and necessary in order to achieve the purpose of fulfilling these obligations. As a matter of fact, blocking access to the services offered by service providers will be valid until these obligations are fulfilled as per the rule.
However, a reasonable balance needs to be struck between freedom of enterprise and securing tax receivables. Dec. In this context, the sanction provided for in the said rule should not impose an excessive and unbearable burden on the enterprise owners.
Given the functionality of the Internet, one of the basic tools of our time, and the convenience it provides, it is natural to resort to some measures through the website where they conduct all their activities, instead of traditional tax security measures, which are understood to be insufficient to ensure that digital service providers who do not have a physically fixed workplace and usually operate electronically fulfill their tax obligations. However, it should be sought that the method of legal protection defined in the law, that is, the vehicle, is proportional to the purpose to be protected by law. In this context, if there is a measure that may cause less damage to the rights and freedoms of the individual, it should be sufficient or this measure should be applied first.
In this context, blocking access to the services offered by digital service providers who do not fulfill their obligations to file returns and pay taxes within the framework of Law No. 213 within the time limit means blocking access to the entire website, which is the most severe sanction. However, although it is possible to establish a gradual tax security measure, it has been assessed that the decision to block access imposes an excessive burden directly on service providers, and Decays the reasonable balance between freedom of enterprise and public interest. In this context, it has been concluded that the restriction imposed on the freedom of interference by the rule is disproportionate and contrary to the principle of proportionality.
For the reasons explained, the Constitutional Court decided that the rule was Unconstitutional and decided to cancel it, and the cancellation will enter into force nine months after the date of publication in the Official Gazette.
B. examination of the first paragraph of the Provisional Article 4 added to the Law No. 3332 by Article 41 of the Law
The rule subject to the lawsuit stipulates that any instruments sold directly or indirectly as shares or under the name of shares at nominal or premium value by joint stock companies deemed to have been offered to the public by the number of shareholders and whose shares are traded on the stock exchange until 31/12/2014 will be considered shares, payments made to these companies will be considered made in exchange for shares and the partnership relationship will be considered established, the non-dematerialization of these shares will not prejudice the partnership rights.
Since it is accepted that all payments made to the joint stock companies mentioned in the rule are made in exchange for shares, the property rights of the savers and joint stock companies paying these payments conflict. The state is obliged to take certain measures to protect the right to property within the scope of its positive obligations. If the regulations stipulated by the legislator lead to disproportionality to the detriment of one of the parties in establishing the balance of interests, they may not be compatible with positive obligations in terms of property right. In this context, the interests of both parties should be balanced as much as possible and the process should not be concluded in such a way as to have a disproportionate result against one of the parties.
It is understood that the rule subject to the lawsuit aims to protect the property rights of other partners who own shares in these companies, to guarantee the rights of third parties who have commercial relations with these companies and to ensure that the company continues its activities under free market conditions. However, due to the Deciency of the legal relationship between the savers and the companies as required by the rule, the interests of the savers have been significantly affected.
The authority of savers to file a lawsuit within the framework of the provisions on default on receivables and to initiate enforcement proceedings in relation to this receivables has been eliminated. Although savers have become shareholders, they do not have the opportunity to leave the partnership. Although there is no legal obstacle to the transfer of the share, it is difficult to say for sure that the share value will meet the value of the receivables arising from the savings made in the company.
When these issues are taken into consideration, it is understood that the rule subject to the lawsuit does not provide effective solutions for establishing the balance of interests between companies and savers and leads to a shift in the balance of interests in favor of companies. Dec. On the other hand, it has also been observed that there is no legal guarantee for savers not to lose their rights due to the payments they have made.
In the light of these evaluations, it has been concluded that the rule imposes an excessive burden on savers and does not balance the conflicting interests of the parties by Deconstructing the balance of interests that should be observed between savers and companies in the context of property rights against savers.
For the reasons explained, the Constitutional Court decided that the rule was Unconstitutional and decided to cancel it.
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