Page 11 - EY-VG_Aralik_2014

Vergide Gündem English Translation Special consumption tax (SCT) no longer refundable All taxpayers manufacturing goods not in the list no. (I) should receive SCT refund. The lawmaker first makes an arrangement regarding a matter in the laws and then generally authorizes the relevant Authority to make sub-arrangements regarding certain issues, through an another article in the same law. However, these issues should naturally not go beyond the principles determined under the laws by the lawmaker. It th is also stated in the 7 article of the Constitution that legislative power is vested in the Grand National Assembly of Turkey on behalf of Turkish Nation and this power shall not be delegated. Therefore, it is essential that the issues to be arranged by the Authority do not go beyond the will of the lawmaker. This is also one of the fundamentals of being a state of law. The Tax Authority exercises this given authority to establish general regulatory practices by publishing general communiqués. Actually, it should also be noted at this point that not all communiqués published by the Fiscal Authority can be considered within this framework. The ones we mention here are the application communiqués that constitute a regulatory administrative practice; not the interpretative communiqués (while it is still being argued that interpretative communiqués also constitute regulatory practice in terms of their consequences). In other words, the general communiqués published by the Fiscal Authority based on the authority granted to itself under an article of the law constitute regulatory administrative practices. Application communiqués are limited by the discretion authority granted by the article of the law on which the communiqué is based. It should be accepted that the authority granted by the article of the law relates to secondary aspects of tax rather than principal aspects and is very limited. This is also a requirement of the principle 1 of legality of taxes. Otherwise, communiqués which change the fundamental aspects of tax or expand the scope although not prescribed in the law would conflict with the article 7 of the Constitution. This situation can be encountered in general communiqués, while similar cases may exist even in circulars, which reflect only the opinions of the Authority. By way of explanation, it is frequently observed that the opinion explained in a circular is taken into consideration as if it is a general regulatory practice. In respect of this matter, there has been an issue under our consideration for a long time: a circular of the SCT Law. Since we have had the chance to examine different applications of this Law, we have written many articles about certain problematic aspects that we have observed to date. However, this time we will discuss how the Authority has narrowed down the scope of the deferment-cancellation practice described in the article of the law and introduced the tax refund practice in its place, while publishing the circular regarding the issue. Therefore, we have mentioned administrative law in the introduction given above. In our country, the general problem in the area of law is that articles of the laws are overinterpreted based on wording. 1 Bekir Baykara, Ekim 2001, Vergi Kanunları İle İlgili Genel Tebliğler Ve İç Genelgelerin Hukuki Anlamı ve Değeri, Vergi Dünyası Dergisi Aralık 2014 Aralık 2014 11