TEMPORARY ARTICLE 2 OF LAW NO. 7420 AND THE PROCEDURES AND PRINCIPLES REGARDING THE IMPLEMENTATION OF TEMPORARY ARTICLE 2 UPON THE ENTRY INTO FORCE OF THE COMMUNIQUÉ
In the enforcement proceedings initiated pursuant to Law No. 2004 and Law No. 7155, the debtors must be real persons, the amount of the enforcement proceedings, including the principal receivable and its accessories, must not exceed TL 2.000,00-TL or the balance amount of the enforcement proceedings must not exceed TL 2.000,00-TL due to partial payments made to the file as of 15.08. 2022 due to partial payments made to the file as of 15.08.2022, the balance amount of the follow-up does not exceed TL 2.000,00-TL, and it is also regulated that the receivables in question will also be accepted within the scope of worthless receivables upon the application of the creditor or its representative to each enforcement file with a petition stating that they have waived.
At this point, it is important to note that the request for waiver by the creditors or their proxies to the enforcement proceedings files can be submitted until the end of the sixth month following the date of entry into force of Law No. 74201 at the latest.
In order to encourage the termination of the aforementioned enforcement proceedings by the creditors or their proxies, it is stipulated that the fee2 required to be collected for the waiver of enforcement proceedings pursuant to Article 23 of the Law on Fees No. 492 and the fee3 regulated in the Law No. 2548 on Fees to be Collected against the Construction of Prisons and Court Buildings and Food Costs to be Paid to Prisoners shall not be collected.
In addition, the fees for applying for execution, which were previously paid by the creditors of enforcement proceedings or their attorneys during the initiation of the enforcement proceedings, and the advance fees paid in enforcement proceedings other than enforcement proceedings with judgment will not be refunded to the creditors.
With the regulation introduced, it is also clearly stated that the parties cannot claim any other rights and receivables from each other or the creditor party from the enforcement directorate that closed the file, such as attorney fees, judicial expenses and similar other rights and receivables.
Provisional Article 2 of the Law No. 7420 protects the mutual interests of the creditor and the debtor, and regardless of whether the creditor is a real or legal person or whether the receivables arise from subscription agreements, the value added tax and special communication tax, which were previously fulfilled and previously calculated and declared by the creditors regarding the receivables waived from the enforcement proceedings, are compensated by deducting the value added tax and special communication tax previously calculated and declared by the creditors in accordance with the provisions of the Value Added Tax Law and Expense Tax Law.
Businesses that keep books on the balance sheet basis make provisions for the receivables that they put into enforcement proceedings under the name of “…Doubtful Claim” and these receivables are recognized as income. Therefore, such enterprises are under tax liability for receivables that are impossible or very difficult to collect. However, worthless receivables regulated by Article 322 of Law No. 213 are receivables that are impossible to collect according to a judicial decision or an opinion-forming document. Receivables that are recorded as income even though they do not enter the assets of the enterprises as a fund are later written off as expense due to the impossibility of collection, in other words, if the doubtful receivables turn into worthless receivables, the tax liability of the income written off is deemed to be compensated… “4 Since the receivables waived with the Provisional Article 2 of Law No. 7420 will be considered as worthless receivables, it is also aimed to compensate the tax liability fulfilled by the creditors.
In addition, if GSM operators and other authorized operators, which are obliged to pay treasury share according to Annex Article 37 of the Telegraph and Telephone Law No. 406, waive their receivables by taking advantage of the provision of the article, 18 percent of the amount of the proceedings in the relevant execution file as of 15.08.2022 will be refunded by deducting from the treasury share they are required to pay, provided that there is an amount of treasury share due within the amount they waived.
Likewise, a similar arrangement will be made for the operators authorized by the Information Technologies Authority within the framework of the Electronic Communication Law No. 5809 and obliged to pay universal service share within the scope of the Universal Service Law No. 5369, if they waive their receivables by taking advantage of the provision of the article, 1 percent of the waived amount will be refunded by deducting from the universal service contribution shares they are required to pay.
With Law No. 7420, both the tax obligations fulfilled by the creditor party are compensated and the debtor party is relieved from the enforcement file.
III. ANALYSIS OF THE ARTICLES OF THE COMMUNIQUÉ
Article 4 of the Communiqué titled “Procedures to be carried out in the enforcement files pursued in the enforcement offices” explains in detail the procedures to be carried out by the creditors or their attorneys and the enforcement managers.
In summary; the creditors who wish to benefit from the Provisional Article 2 of the Law No. 7420, personally or through their attorneys, will submit a petition to the execution files that meet the necessary conditions, through UYAP or physically, for the closure of the file due to waiver, and if there are other requests (removal of attachments, etc.) in this petition, they will also specify them.
The enforcement directorate, on the other hand, will close the file by evaluating whether the enforcement proceeding complies with the conditions specified in the Provisional Article 2 of the Law No. 7420, by making the file cover calculation. It should be noted here that after the enforcement office closes the file, it is obligatory to issue a document stating that the file is closed due to waiver pursuant to Provisional Article 2 of Law No. 7420.
Article 5 of the Communiqué, titled “Procedures to be carried out in the enforcement files carried out with the MTS”, specifies how the regulation in Provisional Article 2 will be carried out in the enforcement files carried out through the Centralized Tracking System, which refers to the part of the enforcement proceedings arising from the subscription agreements created in the National Judicial Network Information System and carried out by the creditor’s attorneys until the foreclosure procedures.
The creditor’s attorney will submit a waiver request to the Centralized Tracking System file and the file closing procedures will be carried out by the creditor’s attorney. Likewise, in the document to be issued after the file is closed, it is obligatory to add a statement that the file is closed due to waiver pursuant to Provisional Article 2 of Law No. 7420.
In the following articles of the Communiqué, the procedures and principles of the set-off facility for creditors liable to pay treasury share and universal service contribution share are mentioned. GSM operators liable to pay the treasury share will be able to offset 18 percent of the amount of the proceedings and/or the balance of the proceedings in the execution file that they waive in accordance with Provisional Article 2 of Law No. 7420 from the treasury share that they are required to pay starting from the month following the date of waiver. Operators liable to pay the treasury share are obliged to fill in the table numbered 1 in the annex of the published Communiqué and keep it in order to be submitted during the audits to be conducted by the Tax Audit Board. Likewise, operators who are obliged to pay universal service contribution will be able to deduct 1% of the amount of the proceedings and/or the balance of the proceedings in the execution file that they waive in accordance with Provisional Article 2 from the first universal service contribution following the date of waiver. Operators who are obliged to pay universal service contribution are also obliged to fill in the table numbered 2 in the annex of the Communiqué and send it to the Information Communication and Technology Authority.
IV. GENERAL ASSESSMENT
With the Law No. 7420 and the published Communiqué, in the enforcement proceedings initiated pursuant to the Law No. 2004 and the Law No. 7155; the debtors must be real persons, the amount of the enforcement proceedings, including the principal receivable and its accessories, must not exceed TL 2.000,00-TL or the balance amount of the enforcement proceedings must not exceed TL 2.000,00-TL due to partial payments made to the file as of 15.08. 2022 due to partial payments made to the file as of 15.08.2022, the balance of the follow-up amount does not exceed TL 2.000,00-TL, and also upon the application of the creditor or his/her representative to each enforcement file with a petition stating that they have waived, it is regulated that the receivables in question will also be accepted within the scope of worthless receivables.
Creditors who wish to benefit from Provisional Article 2 of Law No. 7420 must submit a waiver petition to the enforcement proceedings files that meet the conditions until the end of the 6th (sixth) month following 09.11.2022, which is the date of entry into force of Law No. 7420. At this point, it should be noted that the 6 (six) month period starts from the date of entry into force of the Law No. 7420, not the Communiqué.
Another point to be noted is that although the Provisional Article 2 of Law No. 7420 allows creditors to waive the execution files that meet the conditions, the decision whether to waive the execution files that meet the conditions is left to the creditor’s initiative. With these regulations, it is aimed to protect the mutual interests of the creditor and the debtor, to relieve the debtor from the burden of the enforcement file and to compensate the taxes that the creditors are obliged to pay, as well as to reduce the burden of the enforcement offices.
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