TC
The Council
Apartment.
Original No.: 2013/1150
Decision No:2013/9562
K. Date:9.12.2013
Summary : When calculating the base according to the profitability rate of the sector in construction and contracting works, it should be assumed that all expenses incurred during the execution of the work are taken into account in this way, since the amount reached reflects the taxable profit of the enterprise.
Plaintiff : …The Tax Department
Counterparty : …Forestry Electricity Construction Contracting Industry Trade
Limited Liability Company
Claim summary: Regarding the cost of works commissioned by official institutions in 2004, it was determined that the tax invoices entered in the records may not have been tax-determined due to the inability to detect, and based on the review report, a lawsuit was filed on behalf of the plaintiff company to request the cancellation of the corporate tax and tax loss penalty, recognizing that the purchase price of 20% of gross profit was determined according to the principles officially published in 2004. In accordance with the decision of the Council of State to overturn,
the Tax Court of Sivas dated 18/10/2012 and E:2012/348 , K:2012/339 with the numbered decree; ensuring that the construction contract and equity capital related to the accepted 20% net profitability rate are operated by flow in a given environment, where they can be accepted if the plaintiff’s expenses incurred by the company are found misleading, betting on 20% revenue by applying a gross profitability ratio to the tax base of some of the contents based on documents declared in 2004, the difference between inflation expenses and financing expenses should also be taken into account according to the element’s statement, which is not the subject of criticism and review,
according to the courts, it decided to reject the relevant part of the case on the grounds that the tax hitting the base reached as a result of including these expenses in the calculation was not unlawful in the penalty deducted, to remove the charge and the penalty related to the exceeding part. The Defendant Administration claimed that the inflation difference expense declared by the plaintiff in the relevant year and the consideration of financing expenses in determining the base were contrary to the established case law of the Council of State and requested that the acceptance part of the decision be overturned.
Summary of the Defense : No defense was given.
Opinion of Melek Karali Saunders, Judge of the Court of Accounts: It is considered that the appeal request should be rejected because the issues put forward in the appeal petition are not sufficient to overturn the decision of the court of appeal.
ON BEHALF OF THE TURKISH NATION
The punishment deemed necessary by the Fourth Chamber of the Council of State was discussed:
in 2004, it was decided to appeal the relevant part of the Tax Court decision related to the acceptance of the partial acceptance and partial rejection decision in the lawsuit filed by the plaintiff with a fake invoice allegedly officially certified on behalf of his company, the cancellation of corporate tax and the abolition of tax penalty wastage.
13 of the Corporate Tax Law No. 5422. article: Corporate tax, taxpayers on gross income to be calculated on income written during an accounting period, have stipulated that the provisions of the law on financial earnings will be applied in determining income tax on adjusted gross income, Articles 2 and 193 of the Income Tax Code contain the basis on which real income will be taxed.
According to the income statement added to the plaintiff company’s corporate tax return for 2004, net sales were TL 81,173.79 and were reflected in the records and declarations for the same year… Machinery, … Petroleum, … Construction Materials, … Consulting, Petroleum Products Limited Company’s invoices received from the expense item were removed from the records due to not reflecting the truth and were calculated according to the actual costs in accordance with the decisions of the Council of State and expenses could not be determined,
paying paid TL 16,324.75, which constitutes 20% of the gross profit to net sales of 20% of the construction and contracting enterprise income, through deductions from the previous period, TL 50 tax deduction as a result of the 1,638 package, TL 96 corporate tax was reached over the amount to be paid; according to the cancellation decision of the Council of State, the Tax Court has an inflation difference expense of TL 1,848.52, declared by the plaintiff and not subject to criticism, and a financing expense of TL 3,838.31 deducting the amount of the penalty exceeding this amount and part of it, calculated by the examiners on the net profit 16.It is understood that he decided to remove 324.75 TL from the tax base.
According to the case law of the Council of State, the income from the sale of allowances up to 20% of the gross profit resident, according to the case law of the plaintiff, the determination of the period basis is mandatory if the expenses incurred by the plaintiff during admission are accepted, the entire work must be taken into account, so if the base is calculated by the aforementioned method, the actual cost of the work commissioned by a public institution full of healthy and fake invoices is reflected in the records due to the dismissal of the case, the income from the sale of allowances up to 20% of the gross profit is settled, according to the case law of the Council of State,
the determination of the period basis is mandatory if the expenses incurred by the plaintiff during admission are accepted, the entire work must be taken into account, so if the base is calculated by the said method, in addition to the expenses declared by the plaintiff, it is not possible to include the expenses declared by the plaintiff in the calculations when determining the Oct. Accordingly, the plaintiff’s
The decision of the Tax Court regarding the removal of the excess part of the tax and penalty falling on the base calculated by taking into account the inflation difference and financing expenses was not in accordance with the law.
For the reasons explained, the decision of the Sivas Tax Court on the acceptance of the appeal request was made on 18/10/2012 and E:2012/348 , K:2012/339 it was decided by a majority of votes on 09.12.2013 to annul the acceptance part of the numbered decision.
VOTE AGAINST
upon the lawsuit requesting the removal of corporate tax and tax loss penalty by withholding the official acceptance of the tender price at the rate of 20% of the gross profit of 2004, in accordance with the decision of the Council of State, a discount of 20% of gross profit on the price and consideration of the works completed by official institutions in 2004 could not be determined due to the plaintiff’s betting on behalf of the company,
and the penalty for corporate tax and tax loss was withheld in accordance with the official acceptance of the gross profit of 2004, in accordance with the decision of the Council of State to make a discount of 20% of gross profit on the price and take into account, an appeal has been filed against the Tax Court decision on the removal of the tax and penalty part related to the surplus that hits the base, calculated by taking into account inflation difference expenses and financing expenses.
paragraph 4 of Article 49 of the Administrative Trial Procedure Law No. 2577 stipulates that courts may insist on the old decision by not complying with the violation; if the insistence decision is challenged by the relevant person, it is examined by the Administrative or Tax Litigation Departments of the Council of State according to the subject of the case; if the decision of the relevant litigation department of the Council of State is deemed appropriate, the court’s decision is overturned; otherwise, it is upheld and the decisions of the Administrative and Tax Litigation Departments of the Council of State must be followed.
The examined file was recorded as an expense in the Tax Court, the plaintiff company records Publishing Joint Stock Company, Petroleum and Petroleum Products Joint Stock Company, Construction Materials, Textile Industry Joint Stock Company, Limited Liability Company petroleum products, consulting services and …, construction, transportation, cleaning, food techniques Joint Stock Company tax reports were kept to place bets against the company upon detection of counterfeit bills, the amount of the invoice was arranged to bet against the company, when it is understood that charges have been deducted from the company in the invoice and levied,
the VAT deductions and the rejection of the Value Added Tax and the lawsuit filed requesting the abolition of the tax loss penalty and E:2007/458 the courts seen in the numbered file are related to the assessment made in the case that the bills are fake, but for the same reason, the assessment can be made earlier in terms of corporate tax, in addition, the content of the received property bill, whether the examination should be conducted by concluding that it is proportional to the nature and size of the candidates’ activities, this invoice made before such a determination was made by the defendant in the case of the administration of the disputed invoice was found to be fake,
since the law did not make a decision on the adoption of the case on the grounds that the corporate tax expense and tax loss penalty were removed from the released records by conducting a review in the opposite direction; as a result of the appeal review, the fourth block of this decision of the Council of State was approved by the Department on 26.3.2012, E. 2009/8237, K. according to the relevant annual decision numbered 2012/1051, it was found that part of the invoice for the purchase of the ledger as a saved commodity was fraudulent, the decision of the Tax Court was overturned on the grounds that it was canceled in accordance with the procedures and principles of the corporate tax deduction and tax loss penalty,
which were officially released according to the 20% gross loss rate accepted for the resident, construction contract in accordance with the decisions of the Council of State, and in accordance with the law.
According to the matrix found taking into account the inflation difference and financing expenses, it was decided to partially accept the case, but since the tax loss penalty deducted from the corporate tax withheld by TSE was ruled to be in accordance with the law, the decision to be made in accordance with the violation decision should also be made in accordance with the rejection of the case, while the decision to disrupt should be made in accordance with the violation decision, while the decision made taking into account the inflation difference expenses and financing expenses is an insistence on the transaction in the old decision.
As of this moment, 49 of the Administrative Trial Procedure Law No. 2577 mentioned above, the examination of the appeal. I do not agree with the majority decision that it should be made by the Board of Tax Litigation Departments in accordance with the provision of the article.