T.C.
Council
Mainly No:2013/1150
Decision No:2013/9562
K. Date:9.12.2013
Summary : About the fact that the amount reached when calculating the base on the basis of the profitability ratio of the sector in construction and contracting works reflects the taxable profit of the enterprise, it is necessary to assume that all expenses incurred during the performance of work are taken into account in this way.
The Appellant : …The Directorate of the Tax Office
Counterparty: … Forestry Electricity Construction Contracting Industry Trade
Limited Company
Istemin_ozeti: in 2004 by contracting official institutions related to the cost of the completed works, entered into the records does not reflect the fact that tax invoices that may not be detected due to the path includes identifying, based on the review report, the plaintiff on behalf of the company, the procurement price of 20% of gross profit by accepting detected on the basis of officially released in 2004, to demand the abolition of the corporate tax and tax loss penalty has been filed. In accordance with the decision of the Council of State to overturn, the Sivas Tax Court has a decision dated 18/10/2012 and E:2012/348, K:2012/339 by his numbered decision; construction contract for the accepted 20% of net profitability ratio, and the equity capital is to be made to operate with flow for given environment where they can be accepted if the plaintiff’s expense by the company is found to be misleading, since a part of the contents of the documents based on declared in 2004 to bet the proceeds of 20% by applying the rate of gross profitability on account of the tax base, which is not made the subject of criticism and review elemaninc declared inflation the difference of expense and financing costs also need to be taken into account, accordingly, the courts decided to dismiss the relevant part of the case on the grounds that there was no violation of the law in the punishment imposed by the tax that hit the base reached as a result of including these expenses in the calculation, and to abolish the tarhiyat and the penalty related to the excess. The Defendant Administration requests that the acceptance part of the decision be overturned, arguing that the consideration of the inflation difference expense and financing expenses declared by the plaintiff in the relevant year in determining the base is contrary to the established case law of the Council of State.
Summary of the Defense : No defense is given.
Opinion of Audit Judge Melek Karali Saunders: Since the issues raised in the appeal petition are not sufficient to overturn the decision of the court subject to appeal, it is considered that the appeal request should be rejected.
ON BEHALF OF THE TURKISH NATION
The sentencing was discussed by the Fourth Chamber of the Council of State as necessary:
In 2004, a paste, a fake invoice with the plaintiff alleged belgelendirdig officially released on behalf of the company, filed to demand the abolition of corporate tax and tax penalty of waste is partly agree, partly related to the adoption of the portion of the Tax Court decision of denial was appealed.
The 13th article of corporate tax law No. 5422: corporate tax, Article 1, written during an accounting period is to be calculated on the gross income obtained taxpayers, adjusted gross income in the determination of income tax shall apply the provisions of the act regarding financial gain has decreed that, in Article 2 and 193 of the income tax law have been given to the principle that real income will be taxed.
According to the income statement attached to the corporate tax return of the plaintiff company in 2004, net sales were TL 81,173.79, which is reflected in the records and statements of the same year … Machinery, … Oil, … Construction Materials, … Consulting, Oil Products Company Limited received invoices from expense because it does not reflect the truth be removed from the records and resident of the State Council decisions in accordance with the actual costs and the costs could not be determined where the construction and contracting business revenue from 20% gross profits to net sales of BET has to recognize that since it is declared in the amount of 20% of which constitute 16.324, £ 75 3.718 paid through deductions over the previous period,a $ 50 deduction of taxes in the amount of the result of 1.638 packed,96 TL has been reached on the amount of corporate taxes payable; In accordance with the decision of the Council of State to annul, it was understood that the Tax Court decided to remove the amount and the portion of the fine that exceeded this amount by deducting the inflation difference expense of 1,848.52 TL and the financing expense of 3,838.31 TL declared by the plaintiff and not subject to criticism from the tax base of 16,324.75 TL calculated on net profit by the review staff.
The actual cost of the work completed by a public institution committed to the plaintiff related to healthy and full of fake invoices are due to be detected as reflected in the records due to the failure, the built-in according to the jurisprudence of the State Council, the proceeds from the sale of allowances to 20% of gross profit is mandatory in the case that the determination of the acceptance of term basis in the event of gross earnings by the definition of costs incurred by the plaintiff during the acceptance that you are considering all of the get the job done is required. Therefore, in the case of calculating the base by the mentioned method, it is not possible to include the expenses declared by the plaintiff in the calculations in the determination of the base in addition to the expenses declared by the plaintiff.
Accordingly, the Tax Court’s decision on the removal of the excess part of the tax and penalty that falls on the tax base calculated by taking into account the plaintiff’s inflation differential and financing expenses did not comply with the law.
For the reasons described, the decision of the Sivas Tax Court on the acceptance of the appeal request was made on 18/10/2012 day and E:2012/348, K:2012/339 it was decided by a majority vote on 09.12.2013 to overturn the acceptance part of the numbered decision.
VOTE AGAINST
In 2004, the completed works by contracting official institutions related to the cost of the invoices entered into the records that does not reflect the fact that the plaintiff could not be determined due to a bet on behalf of the company and the procurement price of 20% of gross profit for 2004 officially released by adoption detected on the basis of corporate tax and tax loss on a lawsuit to demand the abolition of the penalty, the price in accordance with the decision of the State Council allowance of 20% of the gross earnings and are considered to be, the decision of the Tax Court on the abolition of the part of the tax and penalty related to the surplus that hit the base calculated by taking into account inflation differential expenses and financing expenses has been appealed.
in paragraph 4 of Article 49 of the Administrative Procedure Code No. 2577, it is stipulated that courts may insist on the old decision by not complying with the overturning; if the decision to insist is appealed by the relevant person, it will be examined by the Council of State Administrative or Tax Litigation Offices according to the subject of the case; if the decision of the relevant litigation office of the Council of State is deemed appropriate, the court’s decision will be overturned; otherwise it will be upheld and it is mandatory to comply with the decisions of the Administrative and Tax Litigation Offices Boards of the Council of State.
The examined file is recorded as an expense in the Tax Court, the plaintiff company records shipping and regulate mining machinery industry and trade bills Publishing Company Limited, Oil and Oil Products Company Limited, Construction Materials, Textile Industry Limited Company, Limited Company oil products, consulting services and…, construction, transportation, cleaning, food technique Company Limited held about tax reports, since it has been determined that counterfeit bills is organizing the invoice amount to bet the company in the case when it became clear the assessment was made by removing costs from the company in the invoice the VAT cuts released by the rejection of Value-Added Tax with a tax loss to demand the abolition of the penalty opened, and the courts E:2007/458 seen in the file numbered with the assessment made in the case of the Bills are fake, reached the conclusion that, however, in terms of corporate income tax for the same reason, the assessment can be made before, moreover,, the contents of the bill of goods that was taken, is proportional to the nature and size of the activities of the candidates in terms of whether a review should be made before such a determination is made by the defendant in the case in dispute over the administration of the bill this bill is the opposite since it has been determined that it was a fake investigations by the expense of corporate tax and tax loss penalty from the records released by the removal on the grounds that the law has not decided to uyarlik the acceptance of the case; as a result of review on appeal this decision of the Council of State is the fourth blog of the Department 26.3.2012, E. 2009/8237, K. 2012/1051 with the decision of the relevant year to purchase the book as a commodity that is saved understood that some of the bill were fake, resident in the decisions of the state council, construction contract for the accepted 20% gross loss ratio based on the officially released by the corporate tax cut and tax loss penalty procedures and in accordance with the law on the grounds that the decision of the Tax Court was quashed.
According to the matrix found by taking into account the inflation difference and financing expenses, although it was decided to partially accept the case, since the tax loss penalty deducted by the corporate tax released by tue’sen in the decision to overturn was ruled to be in accordance with the law, the decision to be made in accordance with the decision to overturn should also be formed in the direction of dismissing the case in this direction, while the decision to overturn should be made in accordance with the decision to overturn, the decision made by taking into account inflation differential expense and financing expenses is in the nature of insisting on action in the old decision.
As of this moment, I disagree with the majority decision in the opinion that the appeal review should be conducted by the Board of Tax Litigation Offices in accordance with the provision of Article 49 of the above-mentioned Administrative Procedure Code No. 2577.