Yargıtay'ın anonim ve limited şirket faaliyetleri kapsamında işlenen vergi kaçakçılığı suçlarında kanuni temsilcinin sorumluluğuna ilişkin yaklaşımının değerlendirilmesi
Evaluation of the Court of cassation's approach to the liability of the legal representative for tax evasion crimes committed within the scope of corporation and limited liability company activities
Yazar: MERT ANIL GÜLER
Danışman: DR. ÖĞR. ÜYESİ BALCA ÇELENER
Galatasaray Üniversitesi / Sosyal Bilimler Enstitüsü / Kamu Hukuku Ana Bilim Dalı
Derece: Yüksek Lisans, 2024
Konu: Hukuk = Law

Özet:
213 sayılı Vergi Usul Kanunu'nun 359'uncu maddesinde düzenlenmiş vergi kaçakçılığı suçlarının birçok potansiyel failin söz konusu olabileceği karmaşık idari süreçlere sahip anonim ve limited şirket faaliyetleri kapsamında işlenmesi durumunda Yargıtay, bu şirketlerin kanuni temsilcisini suçun, aksi somut deliller ile ortaya konulup ispatlanmadıkça, kural olarak faili addetmekte; bunu kanuni temsilcinin emir-talimat zincirinin başında yer alıyor olması, suçun yöneldiği haksız kazancın kanuni temsilcinin menfaatine olacağı, şirket faaliyetleri kapsamında görev üstlenen diğer aktörlerin kişisel bir çıkarı olacağının düşünülemeyeceği sebeplerine dayandırmaktadır. Yargıtay, kanuni temsilci dışındaki aktörlerin bu suçların faili olabileceğini kabul etmekte, olay özelinde bu ihtimallere işaret eden delillerin varlığı durumunda bu delillerin göz ardı edilmesini yasaklamaktadır. Bunun yanında Yargıtay, kanuni temsilci dışındaki aktörlerin failliklerini istisnai görmekte, bunlara işaret eden deliller aramaktadır. Bu delillerin yokluğunda da kanuni temsilcinin cezalandırılması gerektiğini yani ortada mutlaka cezalandırılması gereken bir aktör olduğuna işaret etmektedir. Tez kapsamında, Yargıtay'ın bu yaklaşımının uygulamaya olumsuz etkilerinin neler olabileceği düşünülmüş, yaklaşımın kanunun ruhuyla ve iştirak hükümleriyle ilişkisi ve son olarak adil yargılanma hakkı bakımından değerlendirmesine yer verilmiştir.

Abstract:
Tax has a high importance for the financing of services that are acceptable to be
fulfilled by the state. Article 73 of the Constitution of the Republic of Turkey sets forth
the tax obligation as follows: "Everyone is obliged to pay taxes according to his
financial ability to meet public expenditures." It is known that taxation can be used for
purposes other than financing public services, such as ensuring social justice, shaping
the balance of supply and demand in situations that require state intervention, and even
social engineering. In any case, collecting taxes is indispensable for states to provide
quality services to their citizens and to increase the general welfare level.
Direct taxes are collected based on the taxpayer's declaration. This is because it
is believed that the taxpayer is the best person to calculate how much tax will be
accrued and collected. Taxpayers who declare their income and earnings and calculate
the tax they have to pay by themselves reduce the workload of the tax administration,
whose duty is to collect taxes. The tax consciousness of taxpayers who declare and
accrue a certain portion of their income and tax officials who collect indirect taxes like
a small tax administration and transfer them to the treasury also maintain their vitality.
A system of direct taxation based on the declaration and active participation of
the taxpayer also requires the prohibition of malicious and/or untrue behavior of the
taxpayer in this process. Such behaviors are regulated as crimes or misdemeanors in
almost all contemporary taxation systems and are subject to severe financial or libertybinding penalties. After all, in a tax system based on the taxpayer's declaration, public
interest can only be realized through the taxpayer's honest and open participation in
the taxation process.
Of course, there may be various motivations for taxpayers to engage in such
behavior. Taxpayers' feeling that they are not taxed in proportion to their financial
power, their unwillingness to fulfill their duty to participate in public financing for
various reasons, inflation and the negligence of the tax administration to collect taxes
may constitute the motivation for tax avoidance and tax evasion crimes. The state has
an obligation to prevent such crimes and misdemeanors, regardless of their motivation,
but it also has an obligation to prevent the motivation of crimes and misdemeanors and
to identify and punish them by following a procedure in accordance with the rule of
law based on human rights.
In the context of tax evasion, although there is no actual evasion in terms of the
definition of evasion accepted by the Turkish Criminal Code3
, these crimes, which
have been established as "tax evasion crimes", are regulated in Article 359 of the TPC4
and imprisonment-binding penalties are stipulated as sanctions. As mentioned above,
these offenses prohibit the acts of taxpayers and responsible persons in violation of the
rules of honesty and good faith in the taxation process, such as concealing the taxable
event, issuing false or misleading documents in the taxation process, and impose
various penalties. The crimes are prosecuted by the criminal courts and prosecution is
carried out in accordance with the classical procedure stipulated by the Criminal
Procedure Code and the special procedure stipulated by Article 367 of the TPC.
3 Turkish Penal Code No. 5237
4 Tax Procedure Code No. 213
x!!!
In the classical procedure, the public prosecutor learns of the suspicion that a
crime has been committed through a complaint or denunciation made to him or to the
law enforcement officers who are his assistants. However, failure to notify the
competent authorities of a crime in progress is also subject to criminal sanctions.
Deviating from this procedure, which is the rule in terms of tax evasion offenses,
Article 367 of the TPC stipulates a notification obligation for the tax inspection
authorities who learn of the suspicion that a tax evasion offense has been committed,
which they shall fulfill by adding an opinion.
The public prosecutor may learn about the suspicion of a crime through this
notification, as well as the suspicion that a tax evasion crime has been committed
through other means. By deviating from the principle of ex officio investigation with
the special procedure, the public prosecutor, who has learned that the offense has been
committed by other means, is obliged to request an investigation from the tax
administration; the opinion to be issued by the Report Evaluation Commission is
foreseen as a condition of judgment.
Article 3/B of TPC states; "In taxation, the real nature of the tax-generating
event and the transactions related to this event are essential." In line with this
principle, which we agree with the view that it is a reflection of the aim of reaching
the material truth in criminal procedure law, the tax administration will carry out the
duties imposed on it by laws and regulations in order to reach the material truth, and
if necessary, it will be able to conduct a search examination with the request they will
make in accordance with the procedure, and as a result, it will create a comprehensive
file.
The public prosecutor, who will receive the file upon receipt of the notification
or the result of the requested examination, will continue the investigation activities in
accordance with the principle of the obligation to investigate, and will open a public
case with an indictment if he/she reveals the crime with all its elements and reaches
sufficient suspicion that it has been committed.
As in many international and regional human rights texts guaranteeing human
rights, the European Convention on Human Rights ("ECHR"), drafted by the European
Commission and ratified by the Republic of Turkey in 1954, regulates the right to a
fair trial, which guarantees that the trial of the suspect and the accused is fair, in
accordance with human rights and democratic rules, and in line with this objective, the
contracting states are obliged to establish this right. Undoubtedly, these principles of
criminal law and criminal procedure law should be applied with great importance in
the detection and punishment of tax evasion offenses by the judicial authorities.
The presumption of innocence, which is a bridge between the first paragraph of
Article 6 of the ECHR, which sets out the general principle of the right to a fair trial,
and the third paragraph of the ECHR, which regulates the rights of the accused and
constitutes the raison d'être of the right to a fair trial, is regulated in the second
paragraph of the aforementioned article as "Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law." Both the concept of
fair trial and its most important element, the presumption of innocence, have an
important place in the Constitution of the Republic of Turkey and in our domestic
legislation.
As a natural consequence of the presumption of innocence, which requires the
prosecution to act on the assumption that the accused is innocent from the time the
accusation of a crime is officially notified to the person or the transaction that
substantially affects the person based on the suspicion that the person is guilty until
the finalization of the conviction decision against the person, and therefore the duty to
convince the judge by revealing the commission of the imputed crime with all its
elements, the person under accusation has the right to defend himself, to submit
evidence to prove his innocence, not to make statements and show evidence that will
incriminate himself and his relatives, to remain silent and even not to tell the truth. The
silence of the suspect and the accused shall not be interpreted as a presumption of
evidence. The presumption requires the defendant to benefit from the doubt that cannot
be eliminated and to be acquitted if the prosecution authority, which holds the public
power, cannot prove the reasonable suspicion that a crime has been committed with
the favorable and unfavorable evidence collected. These considerations also apply to
tax evasion offenses.
A state of law must convict those who prejudice the legal interest protected and
criminalized by its laws through impartial and independent courts, with evidence
obtained through lawful methods and with a judicial activity that respects the rights of
the accused; it must punish those who disrupt public order in a deterrent manner and,
if necessary, protect public order by removing them from society with the motive of
rehabilitation. It should be underlined that the rule of law requires the investigative
and prosecutorial authorities to aim to reach the material truth not at any cost, but in a
way that respects the rights of the accused guaranteed by the laws and international
conventions to which it is bound, and to act accordingly.
Like all crimes, tax evasion offenses can only be committed by natural persons.
Joint stock companies and limited liability companies carry out their commercial
activities through their bodies consisting of real persons. If tax evasion crimes are
committed within the scope of the activities of joint stock and limited liability
company legal entities, it is very difficult to identify the perpetrators. Because the
offense is committed behind the veil of legal entity, for example, it is very difficult to
determine who created the forged document, who used it and who are the accomplices,
if any.
The tax duties and obligations of legal entities shall be fulfilled by their legal
representatives pursuant to Article 10/1 of TPC. Undoubtedly, the determination of the
perpetrators of tax evasion offenses, which can be committed by anyone within the
legal entity, is not limited to the determination of the legal representatives who are
responsible for tax duties and obligations and therefore come to mind first. Article
333/3 of TPC, which refers to the legal representatives as the addressee of the penalty
in tax evasion offenses committed within the scope of legal entity activities, was
amended by Law No. 4369 in accordance with the principle of fault and the principle
of individuality of penalties, and it was regulated that the penalties will be imposed on
behalf of those who commit the acts constituting tax evasion offenses. Although it was
not necessary to amend the said provision to establish a practice in compliance with
these principles, the legislator preferred to emphasize the necessity of these principles
with its regulation.
The Court of Cassation has made it an established jurisprudence that the
"criminal responsibility" belongs to the legal representative (assigned to fulfill the tax
duties and obligations) on the grounds that they are at the head of the hierarchical
structure within the company and that the activities in this direction are carried out by
the legal representatives with the authority of orders and instructions in their hands,
and that the unfair benefit directed by the tax evasion crime will belong to the legal
entity or the legal representative -unless the contrary is demonstrated and proven with
concrete evidence. Due to this established case law, the legal representatives start the
investigation phase, which starts on simple suspicion, with a label of a perpetrator, and
this situation imposes an obligation on the legal representative, who has no public
power, to identify the actual perpetrator of a crime and avoid criminal liability.
The Court of Cassation acts with an implicit presumption that there is a
responsible person who must be punished, and this established case law will affect the
public prosecutor's offices, the tax administration, the courts of first instance and the
regional courts of appeal, which are obliged to adapt their practices to the practice of
the Court of Cassation to protect legal predictability and legal security.
It is argued that, from a practical point of view, assuming the legal representative
as the perpetrator of tax evasion crimes committed within the scope of joint stock and
limited liability company activities, by conducting a very limited investigation,
encourages public prosecutors' offices and tax administration to investigate these
crimes incompletely, which may lead to unfair accusations against individuals and
make it difficult to punish the actual perpetrators.
In addition, it is considered that considering the legal representative as the
presumed perpetrator of the offense is contrary to the spirit of the TPC, which has been
amended to order the identification of the real perpetrator and has envisaged a special
follow-up procedure to prevent unfair investigations in the detection of these crimes
and to ensure that technically advanced investigations are carried out.
The provisions of Article 37 et seq. of the TPC define the titles of principal
perpetrator, joint perpetrator, indirect perpetrator and the titles of instigator and aider
and abettor as states of complicity. The Court of Cassation, in its well-established
jurisprudence; "Since it is essential that the personnel act and work under the orders
and instructions of the legal representative, the legal representative will be responsible
for the acts committed." has been a result of the erroneous adoption of the provisions
on participation. It is considered that attributing criminal liability to the legal
representative on the grounds of the authority to give orders and instructions within
the company may have negative consequences and may lead to misapplication of these
provisions. Because the legal representative can only be prosecuted as an instigator
due to his/her orders and instructions; the perpetrators of the offense will be those who
commit the act constituting tax evasion.
Lastly, with this approach of the Court of Cassation, the legal representative is
accepted as the presumed perpetrator of the crime and it is adopted that the legal
representatives cannot be relieved of criminal liability in the event that the contrary
situation is not demonstrated with concrete evidence; it is tacitly accepted that a
possible reasonable doubt cannot be utilized by making criminal liability an institution
that must be avoided; The fact that the burden of proof has been shifted from the
prosecution to the defense, which has no public power at its disposal; the fact that there
is no legal basis and that a law to be enacted in this direction would be incompatible
with Article 6 ECHR, since the interest to be put at risk is human liberty. 6 of the
ECHR, as it would constitute a violation of the presumption of innocence.