Requesting A Decision Revision
TO THE PRESIDENCY OF THE 3RD CHAMBER OF THE COUNCIL OF STATE
TO BE SENT TO
THE 2ND TAX COURT OF ANTALYA
COUNCIL OF STATE FILE NO. :
FILE NO. :
DECISION CORRECTION
PLAINTIFF REQUESTING:
ATTORNEYS :
DEFENDANT : .. Corporate Tax Office Directorate
ATTORNEY :
SUBJECT : Our request for correction of the decision.
EXPLANATIONS :
In the case file referenced above, the local court ruled that “… considering that the partnership status began on 21/07/2009, it is not possible to hold the defendant liable for the tax debt for the period from April to June 2009, the payment order in question lacks legal validity in the portions related to public debts numbered 128, 130, and 132, and the lawsuits filed against the assessments made for the periods from July to December 2009 and June to July 2010 were rejected by the Courts with their decisions dated …/../2015 and numbered E:2013/…, .., K:2015/.. Despite the payment orders being served on the company and an asset investigation being conducted, the plaintiff is liable as a partner for the aforementioned public debts that could not be collected from the company. For these reasons, it was decided to cancel the payment orders for public debts with tracking numbers 128, 130, and 132, and to dismiss the case for public debts with tracking numbers 124, 125, 127, 129, 131, 133, 134, and 135.
The 3rd Civil Chamber of the Council of State, in its decision dated …/…/2019, numbered 2016/… E. – 2019/… K., ruled as follows:
“1. The plaintiff’s appeal is partially dismissed,
2. The decision of the Tax Court dated ../../2015, numbered E:2015/…, K:2015/…, regarding the dismissal of the case in relation to the portion of the payment order in question pertaining to the period after …/../2009, is hereby CONFIRMED,
The plaintiff’s appeal is partially accepted,
4. The decision is reversed for the purpose of rendering a ruling on the special procedural penalty with tracking number 126 regarding the payment order content for the April 2009 period,
The defendant’s appeal is accepted,
The decision is reversed regarding the provision of the decision concerning the cancellation of the portion of the payment order relating to the period prior to ../../2009.
We are requesting a correction of the decision regarding the first-instance court’s decision No. 1 and the defendant’s appeal objections, which resulted in decision No. 6. The reasons are as follows:
The period of the debts in the payment order relates to the year 2009. The event giving rise to the tax relates to the calendar years 2007, 2008, and 2009, and as can be understood from the documents submitted in the case file, the payment order was served on the attorneys on ../../2015. The public debt has become time-barred. Imposing the statute-barred claim on the client is clearly contrary to law and equity.
Furthermore, the penalties forming the basis of the debts in the payment order have not yet been finalized by the company. The company has filed a cancellation lawsuit with the Tax Court under file number 2013/…, and the relevant file is under review by the Council of State for a request for correction of the decision. Therefore, there is no final penalty against the company yet.
At the time the taxable event occurred, the principal (…) did not have any partnership or authority to represent the company in … Ltd. Şti. The tax debts in question accrued during a period when the client did not even have a partnership.
It is not possible to hold the attorney liable for the period during which he did not have the authority to represent the company. Therefore, holding the attorney liable based on the payment orders sent is clearly contrary to the law and procedure. The court has issued a decision based on an incomplete investigation without conducting any research on this matter.
During the tax assessment period, the client was not responsible for reporting the public debts of the company listed in the law, nor did the client have any representative capacity. The local court’s decision to hold the client liable is clearly contrary to the law.
Although an investigation into the company’s assets was conducted, no document was presented to show that there were no assets belonging to the company commensurate with the debt. Therefore, attributing the fault to the client on the grounds that there is no possibility of collecting the public debt from the company is contrary to the law.
In addition, the invoices on which the irregularities were based mention the company officials in Istanbul .. The Criminal Court of First Instance’s decision dated ../../2014, No. 2012/..E. – 2014/…, acquitted the defendant, and the acquittal decision reveals that the reports claiming that the invoices forming the basis of the irregularity penalty were false invoices did not reflect the truth, and that the penalties imposed based on these reports are also subject to cancellation.
For all the reasons explained above, while all payment orders and tax penalty proceedings should be cancelled, it is contrary to law to accept only our appeals against the special irregularity penalty with the reference number 126. For this reason, we request that the decision be corrected.
CONCLUSION AND REQUEST: For the reasons detailed above and in our appeal petition, which will be considered ex officio, we request that our request for a decision revision be accepted and that the decision of the court of first instance be overturned. With respect. 10.06.2020
Plaintiff’s Attorney