Constitutional Court keeps teaching finance the law



In my column, I shared with you that the Constitutional Court struck down the provision saying that the execution judgment cannot be stayed without obtaining 50% protection in tax suits filed in respect of refund of taxes, because This is contrary to Article 125. Constitution, and the reasons for the repeal. Today, I will share two annulment judgments that the Constitutional Court gave the Ministry of Finance this week a lesson.

Legitimacy is essential in crime and punishment

The decision of the Constitutional Court, dated 25.02.2022, which examined the application No. 2017/33714 made within the scope of individual application and found the applicant appropriate, was published in the Official Gazette dated 03.08.2022 and No. 31912.

The tax office imposes a special irregularity fine of 1,370 TL on the applicant, who works as a self-employed lawyer, on the grounds that he does not comply with the obligation to join the electronic notification system. The applicant sues the Tax Court to eliminate the penalty, but his case is dismissed (the decision is final as the amount is less than the appeal limit). The applicant takes the matter to the Constitutional Court within the scope of the individual application.

The following justification of the Constitutional Court should shed light on tax administration practices, and deviate from the “I am the state, I do this” mentality.

A special irregularity was imposed on the applicant for non-compliance with the provisions of Adm. No. 456 by invoking the repeated Article 355 of Law No. 213 – the obligation to obtain an electronic notification address and to use the electronic notification system specified in the release giving notification within the period,

Failure to comply with the obligations stipulated in the first paragraph of Article 355, reiterated Article 213 of the Law No. 213 in force on the date of occurrence, the obligations in the 86th, 148th, 149th, 150th, 256th and 257th articles. Liabilities imposed in accordance with the same law and repeated Article 257. In other words, the obligation to use the appropriate electronic address for notification referred to in Article 107/A of the Law does not include actions for which a repeated Article 355 of the above Law is to be imposed. Special irregularity penalty will be imposed,

In this case, the defect, which is considered a tax offense to which the administrative sanction is applied in the repeated article 355 of Law No. Law – even without giving any authority to the administration in this regard – the offense may be determined by administrative regulation (No. 456). It is deemed that the defect or act constitutes a misdemeanor and the imposition of penalty—administrative sanction—was not indicated in the law without leaving any room for doubt,

On the other hand, in the decision of the Council of State Tax Litigation Chambers regarding the repeal of Communique No. 456; It is emphasized that the offense and punishment have been instituted with a regulatory action without reliance on such authority, the limits of which are determined by law, and in Article 9 of the said communiqué titled “Punishment Provisions”. violation of regulations. The principle of legitimacy in crime and punishment. It is observed that with the amendment made this time after the above decision, the obligations to implement the penal sanctions mentioned in the obligation to join the electronic notification system in Article 107/A of Law No. 213 have been added. Article 355 of this law was reiterated,

Consequently, the establishment of tax misconduct and punishment through regulatory action without any legal basis is contrary to the principle of legitimacy in offenses and punishment regulated in the first paragraph of Article 38 of the Constitution.

Freedom to seek rights cannot be hindered

Along with other decisions of the Constitutional Court, published in the Official Gazette dated 02.08.2022 and numbered 31911, No. of Principles: 2021/119 No. of Judgments: 2022/48, Samsun Regional Administrative Court on the Application of the Second Tax Law Office, of Public Receipts Collection No. 6183 procedure struck down the 5th paragraph of Article 58 of the Act, finding it unconstitutional.

The regulation that those who file a suit against a payment order would pay public debt with a 10% increase if found unjust was also struck down on the grounds that it would make it difficult for taxpayers to apply to the judiciary. becomes, restrains them, infringes on the right to property and the right to a fair trial.

We look forward to a continuation of Constitutional Court decisions reflecting the “I am here” understanding in a period when violations of the Constitution and laws are now considered normal.

Where the force of the law diminishes, the law of the stronger begins to prevail. (Maurice Duverger)

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