Page 6 - EY-VG_Haziran_2020_v3

Vergide Gündem
English Translation

Prior to 2018 amendment, the use of printed
invoice does not require special irregularity
penalty

The subject matter of the case is related to the resolution dated 31.1.2017 E:
2016/629, K: 2017/81 given by the sole judge at the Denizli Tax Court for the
cancellation of the special irregularity penalty imposed on the taxpayer company
pursuant to Article 353/1 of the Tax Procedure Law (“TPL”) due to issuance of an
invoice in hard copies that should be issued as an e-invoice in 2014.

Upon the claim that the rejection of Denizli Tax Court is against the law, with the
appeals request of the Office of the Advocate General for the benefit of the law,
the 9th Chamber of the Council of State concluded its appeal with Decision E:
2017/3886, K: 2019/7414 and resolution to annul it was published in the Official
Gazette dated 13.5.2020. In the decision, it is accepted that the invoice, which is
the instrument of proof of the purchase-sale relationship between the seller and the
buyer within the requirements of the commercial activity, is the primary element
of recording the expense and income for the buyer and the seller; it is stated in the
Articles 229 to 232 of the TPL containing regulations regarding invoices that there
is no paper invoice and e-invoice distinction and the TPL General Communique
no.397 indicates that the e-invoice will have the same legal results as the paper
invoice.
The Council of State overturned the Court's decision which had been finalized
before, for the benefit of the law "as it expresses a result contradicting the existing
law in terms of its quality".

Because it is of the opinion that the penalty in the TPL 353/1 should not be
imposed in the event that both the buyer and seller do not perform an act that
requires explicitly regulated punishment in the law.

In the incidence subject to the case which had been overturned for the benefit of
the law, there was no transaction requiring a penalty as defined in the law, since
the transaction was recorded with an invoice issued, albeit with paper. Therefore,
since it is not possible to impose fines based on comparison and assumption on the
basis of constitutional principles regarding the legality of taxes and penalties, as
per article 353/1 of the TPL for the actual invoices, it is illegal to impose a special
irregularity penalty and It has been unanimously decided to overturn the decision of
Denizli Tax Court.

Impacts of overturning for the benefit of law
The scope of “annulment for the benefit of the law” contains the decisions
expressing a contrary outcome to the existing law in terms of their quality among
the ones given by the regional administrative court and the decisions made by the
administrative and tax courts and finalized by the Council of State as the first-
instance court without reviewing the appeal.

In the face of the inappropriate implementation of the existing legal rules, the
purpose of this appeal is preventing the possibility of misrepresentation in similar
applications in the future and preventing the courts and ensuring unity in practice
by clearly announcing that the law could not be applied as specified in the final
decision after determining that the law was applied incorrectly. Therefore,
annulment the benefit of the law is one of the most remarkable remedies.

6 June 2020

Bu makalede yer alan açıklamalar, yazarının konu hakkındaki kişisel görüşünü yansıtmaktadır. Makaledeki bilgi ve açıklamalardan dolayı EY ve/veya
Kuzey YMM ve Bağımsız Denetim A.Ş.’ye sorumluluk iddiasında bulunulamaz. Mevzuatın sık değiştirilen ve farklı anlayışlarla yorumlanabilen yapısı
nedeniyle, herhangi bir konuda uygulama yapılmadan önce konunun uzmanlarından profesyonel yardım alınmasını tavsiye ederiz.