26 Dec Bus Transport Within The Cooperative
T.C.
Board Of Tax Litigation
Basis: 2002/519 Decision: 2003/335
Decision Date: 13.06.2003
Summary of the request : since the shipping activity was excluded from the knowledge of the tax office, did not keep books and did not provide declarations, a taxpayer was established on behalf of the plaintiff from 1.1.1995 and a Value Added Tax with a resen defect and severe defect penalty was issued for 1998.
Tekirdag Tax Court 28.6.2001 day and e: 2000/292, K: 2001/267 decision; cancellation of the transaction on the way to the taxpayer facility and the abolition of the penalty Levy has rejected the case filed with the request.
Seventh Department of the Council of State examining the appeal request 25.12.2001 day and decision e: 2001/3656, K: 2001/4105; the court’s decision, on behalf of the plaintiff from 1.1.1995, does not contradict the law in rejecting the request for the cancellation of the transaction on the way to establishing a liability, the plaintiff has abandoned the transportation activity.S … Passenger Transport after being a partner in the cooperative of motor carriers, transport activities were carried out by the cooperative with the bus owned by it, Passenger Tickets, passenger list documents and invoices printed on behalf of the cooperative were used in contracted printers during transportation, revenue, expense/deductible VAT is calculated and on behalf of the cooperative to be certified in the book of declarations made by the bus plates are monitored by the cooperative and Value Added Tax where Value Added Tax during the period in dispute that the plaintiff did not file a return are identified in the minutes of held by, in this case, the bus transport kooperatifce declared in relation to the value-added tax to the plaintiff’s declaration with Value-Added Tax and therefore the court must determine whether the difference between, court Tax Office and cooperative research activities related to transportation by bus as made by the plaintiff is the owner of the missing Value-Added Tax has been paid the issue should be decided by determining whether the denial of legal in the case when the decision on the grounds that it has not hit in the way of the decision, penalty assessments, the terms of the provision of the clause is reversed.
Tekirdag Tax Court, which does not comply with the decision to disrupt 30.5.2002 day and e: 2002/179, K: 2002/208 decision; P.S … Passenger Transport in the review of the cooperative of Motor Carriers; The history of 9.3.1990 established in the original purpose of the cooperative services of the partners associated with these services that meet the needs of the transport market and, for this purpose Road Passenger Transport in the same year in the form of modified, which is a cooperative partner of the claimant does not comply with the conditions prescribed in the articles of association, the transportation activity are fulfilled by the cooperative under the name of partners, cooperative partners and therefore weren’t counted out of business income and value added tax liability on behalf of to bet that are made in the assessment is established and it is understood that, in this case, it is clear that the part of the taxes declared and paid by the cooperative and recorded in the Treasury as income is paid by the claimant as a member of the cooperative shall not affect the claimant’s liability and shall not reduce the amount of tax to be paid., 3065: Value Added Tax and service tax bases for the operation of Article 20 of the law delivered in the price, which is defined as, Where is obtained from the proceeds of this work have been held by the plaintiff recorded in the minutes dated 13.6.2000, because this report is Article 3 of the cooperative in 1995, 1996, 1997 and 1998, the study of legal books and documents in question from the revenue and expense of cooperative partners by stating that it is detected as bus plates, it is arranged in relation to the table of documents is added to the report, in the case of the detection of transcripts with the amount of revenue for the period and on its behalf as the basis of the evaluation of the value added tax liability to get the facility, not to keep statutory books, legal documents issued in his own name and that belong to the deductible VAT are not saved to the registry because it is legal does not comply with the rules as clear added value in ignoring the tax cuts, the decision has been resisted in the grounds.
The decision to resist was appealed by The obliged and asked for the decision to be overturned, claiming that the bus was operated by the cooperative, that the income and expense documents were issued by the cooperative, and that the value added tax returns were again issued by the cooperative.
Summary of the defense: the denial of the request is the way it should be.
Opinion of Ali Alpan, audit judge of the Council of state: in accordance with law 3065, Value Added Tax can be discounted if there are expense documents, and since the value added tax return that must be issued during the dispute period is issued by the cooperative, it is considered that the Tax Court’s insistence decision should be violated with the acceptance of the appeal request, given that the re-levy on behalf of the plaintiff will cause duplication.
Opinion Of Bilgin Arisan, Prosecutor Of The Council Of State: 1.1.1995 established ex officio from the date of the plaintiff about value-added tax payers in relation to the process for the year 1995 on behalf of the plaintiff following the cancellation of the officially released Value-Added Tax with gross negligence penalty on a lawsuit to demand the abolition of the flaw and cut off by a decision by the court confirming the obligation of paragraph terms for plant Tekirdag Tax, Value Added Tax and grounded that part of the Council of state relating to failure to comply with the agency’s decision that disrupts the 7th, the original decision of Tax Court decision by examining corruption in Tekirdag who insists temyizen are demanded.
The dispute relates to the defect and severe defect penalty Value Added Tax issued in 1995 due to the fact that the plaintiff, a partner of the carriers cooperative, obtained commercial profits through an intermediary operated under the name of the cooperative.
Article 1 of the Value Added Tax Law No. 3065 states that deliveries and services made within the framework of commercial activities constitute the subject of Value Added Tax, in Paragraph 1/a of Article 8, those who perform these works in the case of delivery of goods and performance of services are Value Added Tax Payers.
In Article 20 of the Value Added Tax Law No. 3065, the basis for delivery and service work is defined as the price that constitutes the equivalent of these transactions. The proceeds of the plaintiff who carries out the passenger transportation activities by road with the vehicle he owns are determined by the minutes dated 13.6.2000 kept before the plaintiff. Article 3 of this protocol states that when examining the legal books and documents of the cooperative in 1995, 1996, 1997 and 1998, it was determined that the income and expenses of the cooperative partners in question were regulated by bus plates.
The plaintiff did not object to the amounts of income in this table, and an appeal was made to establish a liability on his behalf. Since the amount of income determined by the minutes in this respect is the income received by the plaintiff due to this activity, it is considered as the basis of Value Added Tax for the period subject to the lawsuit. Basis of the levy subject to the case in the Tax Review report, when determining the value added tax base, the dues paid to the cooperative, which were not appreciated above the amount of revenue determined by the minutes, were deducted from the base.
3065: Value Added Tax with Article 36 of the law brought to 29, Editing, calculated on their taxable transactions, taxpayers of Value-Added Tax Invoices and similar documents made to them from hence and the delivery of services has been shown in the possibility to download calculating value added tax, or similar deductible VAT receipts and customs documents, purchase invoices discount the possibility but to be separately disclosed from the terms of these documents saved to the registry and you are bound to legal.
Taxpayers who deliver goods and perform services pay from those who benefit from these deliveries and services by collecting Value Added Tax as well as the cost of goods and services and submitting a declaration. The value added tax to be deducted is the value added tax that the taxpayer pays along with the cost of goods and services due to the delivery of goods and services to him.
However, taxpayers who do not comply with the legal requirements for the exercise of these rights cannot benefit from the right to a discount on the grounds that value added tax is imposed due to the delivery of goods and the performance of services made to them.
In the case, it is clear that the plaintiff does not comply with the legal requirements, such as not establishing a liability on his behalf, not keeping legal books, not having passports belonging to value added taxes to be deducted on their behalf, and not being recorded in legal books, the defendant is not taking into account deductible value added taxes when levying on behalf of the plaintiff by the administration.
On 31.12.1994, when the plaintiff was engaged in transportation activities, the plaintiff issued a notice of termination of the work stating that he had abandoned this activity.S. … Passenger Transportation Motor Carriers pursuant to his contract with the cooperative, the decision of the board of Directors of the cooperative to be run by a cooperative of the bus in question where the decision is made,the studies about the cooperative, founded in the history of 9.3.1990, the original purpose of the cooperative partners associated with these services to meet the needs of the transport services market and, while this was modified in the same year in the form of road passenger transport the purpose of, the cooperative’s 3rd title of the article bearing the terms of the partnership agreement main 10 vocational trades being made actively met the requirement in paragraph trait have been provided for in the third subparagraph of the same article, the nature of the job-related organizations will be provided with the document to be proved by the IRS stated that, however, which is the main cooperative partner of the plaintiff based on conditions stipulated in the contract, transport-related liabilities should exist even though the record does not have this feature, although 15% of the difference in positive income and expense is provided for in the articles of Association of the cooperative as a reserve fund and 1% as a promotion and education fund, contrary to the provisions of the law and the main contract, the reserve fund is not divided, risturn, that is, the difference in income and expense is not distributed, and the 1% Promotion Fund is not separated and is not shown in the records, in accounting records, debts to partners and accounts receivable from partners are used instead of a Cash Account, income and expenses are recorded separately in the current accounts of partners as a bus license plate, in this case fulfilled by transportation activities under the name of partners of the cooperative, hence cooperative sayladik quit their bets on behalf of our partners and value added income tax liability is established, and the subject matter of the case and value added tax assessments made heavy flaw the flaw is understood to have been grounded.
In the case, it is accepted by the plaintiff that the bus owned by the plaintiff was not rented and transferred to the cooperative, although the lease was mentioned in the transaction related to the taxpayer facility subject to the lawsuit, both in the petition of the lawsuit and in the defense of the defendant’s administration.
In this case, it is not possible to mention that the cooperative conducts transportation activities. On the contrary, it is necessary to recognize that the plaintiff, who reserves all his savings for the use of the vehicle, operates independently. Indeed, come forth and wasted expense by the cooperative has been obtained where the total of the transactions was calculated as the difference of the partners and should be distributed at a rate of While this method of monitoring the law unable to plate as well as the bus kept separate accounts for the partners, the partners made recognition almost pretend to operate independently, cooperative at this point, the income distribution has followed a pattern that follows that of the partners. As a natural result of this, the cooperative has not fulfilled the obligations that it must fulfill by law and in accordance with the articles of association, such as the separation of reserve funds and promotional funds. However, it is necessary that the partners are tradesmen who have already acquired a professional carrier and prove it with a document that they will provide from the Tax Office. A contract between the cooperative and partners for the operation of buses by the Cooperative, a passenger transport authorization document, a passenger ticket and other income and expense documents issued on behalf of the cooperative do not change the true nature of the event.
It is understood that the claimant acted in order not to be a taxpayer of income and to provide some tax advantages under the name of the cooperative, and in this way he did not file a declaration on his behalf and did not pay Value Added Tax. According to the Value Added Tax Law, it is not possible to deduct the taxes paid by the cooperative to the tax that the plaintiff must pay. If some of the taxes declared and paid under the name of the cooperative and thus recorded in the Treasury as income were paid by the plaintiff as a member of the cooperative, it is not possible for the plaintiff to reduce the amount of tax that must be paid due to his liability on his behalf. Deducting the value added tax to be deducted when declared and paid by the cooperative, which creates the difference between the value added tax declared by the cooperative and the total value added tax to be paid by the claimant and other partners, from the calculated value added tax, however, since the legal conditions are not met by the plaintiff, there is no possibility of deducting the value added tax to be deducted from the calculated value added tax, so there is no legal link between the taxes paid by the cooperative and the taxes to be paid by the plaintiff.
In this case, since there is no violation of the law in the value added tax and defect and severe defect penalties for 1995 issued on behalf of the plaintiff, the insistence decision of the Tekirdag Tax Court, which confirms the penalty levy subject to the case, is in place.
It was considered that the decision of the Tekirdag Tax Court will need to be confirmed with the rejection of the appeal request, which does not have a legal basis for the reasons described.
ON BEHALF OF THE TURKISH NATION
After reviewing the documents in the file, the General Council of Tax Litigation Departments of the State Council, which ruled, the requirement was discussed:
On behalf of the plaintiff, based on the Tax Review report, the Tax Court’s insistence decision was appealed, dismissing the case against the defect and severe defect penalty Value Added Tax issued for the period 1998.
In Paragraph 1 of Article 1 of the Value Added Tax Law No. 3065, the delivery and services made within the framework of commercial, industrial, agricultural and self-employed activities are subject to Value Added Tax, and in Paragraph ( a ) of Article 8, The Value Added Tax Payer is the ones who perform this process in the case of delivery of goods and performance of services.
In the event engaged in transport operations, however, leaving this activity only if they unregister 31.12.1994 liability as of the date of the plaintiff, after becoming a partner in the … Passenger Transportation Motor Carriers cooperative, owned by the cooperative and transport activity, as determined by the bus in a matter of hours doing during this activity, suppressed in the name of the cooperative contracted printing passenger tickets, passenger lists, and invoices are used, revenue, and expense accounts of the value added tax and downloadable, it was determined by the minutes issued before the plaintiff that the value added tax returns were issued on behalf of the cooperative and by the cooperative and that the transportation was carried out by the partners and not by the cooperative, and it was understood that the taxpayer was established and fined Value Added Tax was released on behalf of the plaintiff from 1.1.1995.
It is by the rule of law described above that the plaintiff who carries out the transport activity within the cooperative is the taxpayer of value added tax in the face of the fact that he has carried out this activity on his behalf. However, it is necessary to determine whether there is a difference between the value added tax declared by the cooperative and the value added tax declared by the taxpayer.
After the court conducted an investigation before the relevant tax office and the cooperative, it was determined whether the plaintiff had paid missing value added tax in relation to the transportation activities carried out by the bus owned by him during the disputed period, the decision on the way to dismissal of the case was found to be illegal.
Conclusion: with the acceptance of the appeal request for the reasons described, it was decided by a vote on the day 13.6.2003 that the Tekirdag Tax Court had 30.5.2002 days and e: 2002/179, K: 2002/208 to overturn the insistence decision, that there was no need to establish a provision on judicial expenses, since it would be covered in the decision to be re-issued.
VOTE AGAINST :
1-it is indisputable that the cooperative in which the plaintiff is a stakeholder regulates its records according to bus plates, and that the revenue and expenses of the vehicle belonging to each stakeholder can be determined with the help of these records.
The ability of value added tax liabilities to deduct the tax they are charged due to the goods they deliver and the services they perform from the tax they calculate is based on the characteristics of the system and the purpose of keeping the tax burden on the end consumer. Although the deduction is subject to the condition that the tax charged is shown separately in the document and recorded in the books, and in the event that the taxation was made on the income determined from these records according to the number of license plates of each stakeholder in the cooperative records, while there was no violation of the law in accepting the income of this amount, the same records in terms of deducting the tax charged will result in the burden being left on the plaintiff, which is also contrary to the purpose of the legislator. In fact, there is no dispute that the tax is also shown in the documents issued on behalf of the cooperative and that the documents are recorded in the cooperative books.
The decision of the Tax Court made by the plaintiff to determine whether the carrying value added tax has been paid due to missing and broken to be tax deductible if it is incurred according to the results of the formal condition, without requiring the presence was also decided to investigate and be decided according to the results the decision to allow downloads of the tax exemptions for the denial on the grounds that the case lacked in this aspect of the provision and paragraph should also corruption with a view we do not agree with the decision.
2 – The examination of the file, the plaintiff and the public in a matter of hours, as determined by the cooperative activity resides in the transport, published on behalf of the cooperative during transportation, passenger tickets, passenger lists, and invoices are used, revenue, and expense accounts and downloadable Value-Added Tax on behalf of the cooperative to be certified according to the book bus in the plate where the cooperative Value Added Tax declarations are tracked separately and is given by, it is understood that the administration does not have any determination that the plaintiff did other transport work without the cooperative’s knowledge, other than these account movements.
In this case, there is no determination that the plaintiff has been paid missing value added tax due to the transport activity, and the tax paid by the cooperative should be requested from the plaintiff once, since it will cause duplication due to the absence of any tax loss, while the decision of the court rejecting the case should be violated on the grounds that there is no hit in the decision of the insistent decision, I do not agree with the reason for the decision.
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