Supreme Court Decision On Real Estate
“T.C.
ISTANBUL
9TH TAX COURT
CASE NO: 2014/908
DECISION NO: 2014/1704
SUMMARY OF THE CASE In the lawsuit filed for the cancellation of the title deed fees of 2.260. 549,49 TL related to the real estate paid with reservation in March 2014 due to the sales transactions of the constructions registered in Istanbul Başakşehir, İkitelli Mah. 549,49 TL title deed fees and refund of the tax paid; It is claimed that the fees accrued and paid are not legal although they are exempt from all kinds of duties and fees in accordance with the Law No. 775 on Slums and Law No. 6306 on the Transformation of Areas Under Disaster Risk.
SUMMARY OF DEFENSE It is argued that the term “slum” in the Law refers to the structures built on land that does not belong to the owner without the consent of the owner, that the allocations to be made from these areas should primarily be low-income or poor, that the transactions carried out are legal and that the lawsuit should be dismissed since it is not possible for the plaintiff to benefit from the provisions of Laws No. 775 and 6306 regarding the exception.
ON BEHALF OF THE TURKISH NATION
The Istanbul 9th Tax Court examined the case file and discussed the necessity of the matter:
The dispute arises from the request for the cancellation of the title deed fee of 2.260.549,49 TL paid with a reservation record and the refund of the tax paid.
Article 57 of the Law No. 492 on Land Registry and Cadastral Fees stipulates that “The Land Registry and Cadastral transactions written in the tariff numbered (4) attached to this law are subject to land registry and cadastral fees. ”, and in paragraph 20 (a) of the tariff numbered (4), it is stipulated that in the transfer and acquisition of real estates in return for consideration or based on the contract of maintenance until death or according to the provisions of trampa, a proportional fee shall be paid over the real estate tax value, not less than the declared transfer and acquisition value of the real estate, and the Special Law, No. 6306 on the Transformation of Areas Under Disaster Risk
In Article 7.9 of the Law; “Transactions, contracts, transfers and registrations and applications to be made pursuant to this Law are exempt from notary fees, title deed fees, fees levied by municipalities, stamp tax, inheritance and transfer tax, revolving fund fee and other fees; and the money to be received as collateral due to the loans utilized are exempt from banking and insurance transactions tax.”
Article 33 reads as follows: “The Housing Development Administration may purchase or expropriate privately owned lands and plots of land for use in the services provided for in this law, and in the event that there are structures or other facilities within these lands and plots, it may purchase or expropriate these structures and facilities in agreement with their owners. The Housing Development Administration and municipalities with the permission of the Housing Development Administration are authorized to construct public housing, core housing and temporary guest housing for the purpose of rehabilitation, liquidation and prevention of slums.” According to these provisions, it is stated that the Ministry of Environment and Urbanization and TOKI are authorized to implement zoning plans, landscaping, etc. in the areas determined by the Council of Ministers.
Article 1 of the Slum Law No. 775 states: “The provisions of this law shall apply to the rehabilitation and liquidation of existing slums, the prevention of the construction of new slums and the measures to be taken for these purposes.”, 33. Article 33 reads as follows: “All kinds of transactions, contracts, declarations and the like, such as transfer, assignment, expropriation, purchase, sale, lease, repossession, reversion, reimbursement, subdivision, unification, registration, change of type, establishment and abandonment of pledges, rehabilitation, alteration, repair, construction and completion, with or without consideration, made on the basis of the provisions of this law, are exempt from savings bonds and all kinds of taxes, duties and fees.”
From the evaluation of the above-mentioned provisions of the law together; it is concluded that the transfer and acquisition of real estates in return for consideration is subject to the fee, but the transfers and registrations to be made in accordance with the Law No. 6306 on the Transformation of Areas Under Disaster Risk and the Slum Law No. 775 are exempt from the title deed fee, accordingly, the slum prevention and urban renewal applications made in accordance with the aforementioned law will benefit from the specified exception.
From the examination of the case file; It is understood that the sales of the real estates built in accordance with the Revenue Sharing Agreement in Return for Land with Akdeniz İnşaat ve Eğitim Hizmetleri A.Ş. on the parcel 1342 Block 1 No.l and 1343 Block 1 No.1 in Başakşehir, İkitelli Mah. with the approval of the Prime Ministry Housing Development Administration are exempt from the fee and that the title deed fee should not be paid, and then filed this lawsuit with the request for cancellation and refund of the tax.
It is claimed that the sales made by the plaintiff party are exempt from the fee, and with the interim decision made with the file numbered E: 2013/3138 of the Istanbul 8th Tax Court due to the same incident, a copy of the documents and information indicating that the construction area is within the scope of slum prevention zone or urban transformation, showing the zoning status, and a copy of the contract made with Akdeniz İnşaat ve Eğitim Hizmetleri A.Ş. were requested, from the examination of the documents sent in response to the interim decision, T.C. Prime Ministry Housing Development Administration Presidency 08. 05.2007 and numbered 2222, the areas registered in parcels no. 1342, no. 1 and 1343, no. 1 in the Ayazma Region of Küçükçekmece, Başakşehir, İkitelli Mah. were approved as a slum prevention zone in accordance with the Slum Law No. 775, and in the zoning status document dated 20.10.2011 and numbered 283779 of the Başaksehir Municipality Directorate of Zoning and Urban Planning, it was determined that the region is within the scope of the Implementation Zoning Plan for Slum Transformation and Urban Renewal Area.
In this case, since there is no legal accuracy in the fees accrued on behalf of the plaintiff, which is determined to be exempt from fees in accordance with the Law No. 6306 on the Transformation of Areas Under Disaster Risk and the Slum Law, and paid by the contractor Akdeniz İnşaat A.Ş. with a reservation on behalf of the plaintiff and collected in this way, the fees paid must be refunded.
For the reasons explained, it was unanimously decided on 30/06/2014 to accept the lawsuit, to cancel the fees accrued and paid with a reservation record and to return them to the plaintiff, to pay the judicial expenses of 64,00 TL and 750,00 TL attorney fee from the defendant administration to the plaintiff, to return the increased postal advance to the plaintiff following the finalization of the decision, to be open to appeal before the Council of State within 30 days following the notification of the decision.”