It Is Not Correct To Consider The Money Received In The Lawyer’s Account As An Attorney’s Fee Unless Proven Otherwise
When sending money to bank accounts, the reason why the money is sent must be written in the explanation section. Otherwise, this money may not be recognised in the relevant debt. In the sample decision, it was not accepted as correct to evaluate it as an attorney fee unless otherwise proved in the money transfer to the lawyer’s account. You can review the sample decision.
3rd Chamber of the Council of State
Principal Number: 2017/2173
Decision Number 2021/1449
“Case Law Text”
T.C.
COUNCIL
THIRD CIRCUIT
Main No: 2017/2173
Decision No: 2021/1449
APPEALANT (DEFENDANT) : … Tax Office Presidency/…
ATTORNEY : Av. …
OPPOSITE PARTY (PLAINTIFF) : …
DEFENDANT : . …
SUBJECT OF THE REQUEST :
It is requested that the decision of the … Regional Administrative Court … Tax Trial Chamber … dated … and numbered E:…, K:…, regarding the appeal application directed to the decision of the … Tax Court … dated … and numbered E:…, K:…, be reversed on appeal.
JUDICIAL PROCESS :
The request subject to the case: It is related to the request for the abolition of the income tax with a one-fold tax loss penalty imposed ex officio for the year 2010, the provisional tax with a one-fold tax loss penalty imposed ex officio for all periods of the same year, and the special irregularity penalty imposed in accordance with subparagraph 1 of Article 353 of the Tax Procedure Law No. 213, according to the tax inspection report prepared by taking the tax technique report containing the determinations that some of the income obtained from the lawsuits followed by the plaintiff within the scope of his self-employment activity was not recorded and declared.
Summary of the decision of the Court of First Instance: In the case where it is understood that the plaintiff has reached the tax base difference by evaluating the money deposited in all his accounts in the banks as proxy fees with the information obtained from the UYAP data and that all the files in which the plaintiff has a proxy and which were recorded as closed or closed in 2010 were completed in the same year and the proxy fees were collected, from the information and documents submitted to the file upon the request of the information and documents regarding the files followed by the plaintiff from the courts with the interim decision given by the Courts, the amount of the proxy fee in the files followed by the plaintiff,
The determination of the period in which they actually ended and whether the collection of the attorney fee was realised should be based on concrete data, but such a determination was not made, and it is not possible to evaluate all the money entered into the bank accounts of a person engaged in the activity of a lawyer as an attorney fee unless otherwise proven,
Since it is possible to transfer money to the bank account for all kinds of business and transactions, and since the contrary of this situation should be revealed by applying to the statements of the persons within the scope of the plaintiff’s proxy relationship, the tax and penalties subject to the lawsuit were removed on the grounds that there was no conformity to the law in the assessment made over the tax base difference found based on incomplete examination and research and the special irregularity penalty imposed.
Summary of the Regional Administrative Court decision: It was decided to reject the appeal application in accordance with paragraph 3 of Article 45 of the Administrative Procedure Law No. 2577 on the grounds that it was not deemed to be of a nature that would enable the abolition of the Tax Court decision, which was concluded to be in accordance with the procedure and law.
APPELLANT’S CLAIMS :
It is requested to overturn the decision by claiming that there is no contradiction to the law in the assessment made and the special irregularity penalty imposed, since it is concretely determined in the tax technique report prepared about the plaintiff that he left some of his revenue unregistered and undeclared.
DEFENCE OF THE OPPOSITE PARTY :
No defence was submitted.
OPINION OF THE EXAMINING JUDGE OF THE COUNCIL OF DANIŞTAY … :
It is considered that the appeal request should be rejected and the decision, which is in accordance with the procedure and the law, should be approved.
ON BEHALF OF THE TURKISH NATION
The Third Chamber of the Council of State, after listening to the explanations of the Examining Judge and examining the documents in the file, discussed the necessity:
LEGAL EVALUATION:
It is possible to overturn the final decisions of the regional administrative courts on appeal in the presence of one of the reasons stated in Article 49 of the Administrative Procedure Law No. 2577.
The decision examined on appeal is in accordance with the procedure and law, and the grounds of appeal put forward in the petition are not deemed to be of a nature that requires the decision to be reversed.
CONCLUSION:
For the reasons explained;
1. The appeal request is rejected,
2. The decision of the … Regional Administrative Court … Tax Trial Chamber dated … and numbered E:…, K:…. shall be upheld,
3. In accordance with Article 50 of the Administrative Procedure Law No. 2577, it was unanimously decided on 22/03/2021 to send the file to the first instance court that made the decision in order to ensure that this decision is notified to the parties and a copy of it is sent to the specified Tax Case Chamber.
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