04 Mar BUS TRANSPORTATION ACTIVITY WITHIN THE COOPERATIVE-STATE COUNCIL DECISION
T.C THE DECISION OF THE COUNCIL OF STATE
Board of Tax Litigation Offices
Base: 2002/ 519 Decision: 2003 / 335
Date of Decision: 13.06.2003
Request summary : the transportation activities of the tax administration without the knowledge left to bet on behalf of the plaintiff does not return and it does not hold notebooks 1.1.1995 for the year of 1998 from the date of liability has been established and ex-officio VAT suspended for negligence and gross negligence has been released.
The Tekirdağ Tax Court dismissed the lawsuit filed with its decision dated 28.6.2001 and numbered E: 2000/292, K: 2001/267, requesting the cancellation of the transaction on the way to the taxpayer facility and the removal of the penalty charge.
The Seventh Chamber of the Council of State, which examined the appeal request, with its decision dated 25.12.2001 and numbered E: 2001/3656, K: 2001/4105; since 1.1.1995 on behalf of the plaintiff, there is no violation of the law in rejecting the request to cancel the transaction for the establishment of taxpayer liability, the plaintiff has abandoned the shipping activity of S.S… passenger transportation, motor carriers became a partner in the cooperative after-owned cooperative where activity is performed by the bus transport, passenger transport contracted suppressed in the name of the cooperative during printing tickets, passenger list, documents, and invoices are used revenue, /expense deductible VAT is calculated and to be certified on behalf of the cooperative, the book plates are monitored by the cooperative, and Value Added Tax declarations made by the bus, that is, where the plaintiff did not file return of Value Added Tax in dispute during the period identified in the minutes of that 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, tax office and collaborative research activities related to bus transportation made by the plaintiff is the owner by a court of missing as the value-added tax has been paid by determining whether the issue should be decided in the way of the denial of the case when the decision on the grounds that the legal decision has not hit, penalty assessments, provision of the terms of the clause is reversed.
In accordance with the decision of the Tekirdağ Tax Court dated 30.5.2002 and numbered E: 2002/179, K: 2002/208, which did not comply with the decision to overturn; P.S… In the review about the Passenger Transport Motor Carriers Cooperative; In the history of 9.3.1990 founded the original purpose of the cooperative partners services associated with these services that meet the needs of the transport market and, for this purpose in the same year in the form of modified Road Passenger Transport, which is a cooperative partner of the plaintiff does not comply with the conditions prescribed in the articles of association, under the name of Transportation are fulfilled by the cooperative partners of the activity, and therefore out of business and income on behalf of the cooperative partners to bet that weren’t counted value added tax liability is established and it is understood that the assessment made in, use all the savings on the vehicle that holds independent of the plaintiff’s income and stored on your activity carried out by the tax payer under the name of the cooperative in accordance with the law to be non-tax advantages in order to provide a team moves, the affidavit did not, value added tax you have paid, it is clear that, in this case, as revenue to the Treasury declared and paid by the cooperative and in this way a portion of taxes to be paid by the claimant in his capacity as a member of the cooperative, the plaintiff’s liability will not affect the amount of tax to be paid and will drop, 3065: Value Added Tax and service tax bases for the operation of Article 20 of the law which is delivered where it is defined as the price, the proceeds obtained from this work have been recorded in the minutes dated 13.6.2000 held by the plaintiff, because cooperative in Article 3 of this report, 1995, 1996, 1997 and 1998, the legal question of revenue and expenses from the study of books and documents of plates arranged as cooperative partners in bus by stating that it is detected it is added to the report of documents in relation to the table, in the case of the detection of transcripts with the amount of revenue for the period and on its behalf as the basis for the evaluation of value added tax liability of the facility to get, not to keep statutory books, legal documents issued in his own name and VAT deductible that belong to legal rules are not saved to the registry as it is clear added value in ignoring because it does not comply with the tax cuts, the decision has been resisted in the grounds.
The decision to resist was appealed by the obligee and the decision was overturned by claiming that the bus was operated by the cooperative, income and expense documents were issued by the cooperative, value added tax returns were again issued by the cooperative.
Summary of the Defense: Denial of the claim is the way it should be.
Opinion of Ali Alpan, Examining Judge of the Council of State: According to Law No. 3065, it is possible to deduct value added tax in the presence of expense documents, and since the value added tax return required to be issued during the dispute period was issued by the cooperative, it is believed that the tax court’s decision on insisting should be overturned by accepting the appeal request, given that the amount to be re-made on behalf of the plaintiff will cause a duplicate.
The opinion of the Prosecutor of the Council of State Bilgin Arisan: 1.1.1995 about the plaintiff from the date of ex officio established value-added tax payers on behalf of the plaintiff in relation to the process for the year 1995 with the cancellation of officially released Value-Added Tax and cut by gross negligence the penalty flaw to demand the abolition of the obligation of a decision by the Tax Court on a lawsuit paragraph Tekirdağ terms for the plant, confirming that part of the value-added tax and grounded relating to failure to comply with the agency’s decision of the Council of state that disrupts 7th the original decision of the Tax Court decision by examining corruption in Tekirdag who insists temyizen are demanded.
The dispute relates to the defect and the heavily defective punishable value added tax issued by tue for 1995 due to the fact that the plaintiff, who is a partner of the carriers cooperative, earns commercial profit with the vehicle he operates under the name of the cooperative.
In Article 1 of the Value-Added Tax Code No. 3065, it is stipulated that deliveries and services made within the framework of commercial activity constitute the subject of value-added tax, in Article 8, paragraph 1 / a, those who perform these works in cases 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 works is defined as the price that constitutes the value of these transactions. The plaintiff, who carries out passenger transportation activities by road with the vehicle he owns, has been determined by the minutes dated 13.6.2000, which are kept with the plaintiff of the proceeds from these works. In Article 3 of this minutes, it is stated that during the examination of the legal books and documents of the cooperative for the years 1995, 1996, 1997 and 1998, it was determined that the revenues and expenses of these cooperative partners are regulated by bus plates.
No objection was made by the plaintiff to the amounts of the proceeds in this table and an objection was made on the point of establishing a taxpayer on his behalf. As a result, the amount of revenue determined by the minutes is considered to be the basis of the value added tax for the period subject to litigation, since the plaintiff’s income due to this activity is the same. The basis of the subject matter of the lawsuit is also determined in the tax inspection report, while the value added tax base was determined, the dues paid to the cooperative, which did not have a base appreciation above the amount of revenue determined by the minutes, were deducted from the base.
3065: Value Added Tax Law with Article 29 of 36 brought to editing, calculated on their taxable transactions taxpayers of Value Added Tax Invoices and similar documents and services from deliveries made to them, hence calculating the value added tax has been shown in the possibility to download, but discount the possibility deductible VAT and customs receipts and purchase invoices or similar documents are to be disclosed separately from, you are bound to the terms of these documents legal saved to the registry.
Taxpayers who perform the delivery of goods and services pay the cost of goods and services as well as value added tax from those who use these deliveries and services by collecting and submitting a declaration. The value-added tax to be deducted is the value-added tax paid by the taxpayer in addition to the cost of goods and services due to the delivery of goods and the performance of 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 they are charged with a value-added tax due to the delivery of goods and the performance of services made to them.
In the event that the plaintiff does not comply with the legal conditions such as not establishing a taxpayer on his behalf, not keeping the legal books, not having the records of value added taxes to be deducted on their behalf and not being recorded in the legal books, as it is clear that the defendant administration does not take into account the deductible value added taxes when making the tarhiy on behalf of the plaintiff.
On 31.12.1994, when the plaintiff filed a notice of termination of employment stating that he had abandoned this activity while he was engaged in transportation activities, the plaintiff’s S.S. … Passenger Transportation, Motor Carriers pursuant to his contract with the cooperative, the cooperative in question the decision of the board of Directors of the bus where the decision is made to be run by a cooperative,the cooperative about the studies in the history of 9.3.1990 founded the original purpose of the cooperative partners to meet the needs of the transport market and services associated with these services, while the purpose of this was modified in the same year in the form of Road Passenger Transport, the cooperative’s main title of the Article 10 of the terms of the partnership agreement bearing the trait actively trades vocational been met the requirement of being made in the 3rd paragraph, provided for in the third subparagraph of the same article, the nature of job-related organizations will be provided with the document to be proved by the IRS stated that, however, the main conditions stipulated in the contract, which is a cooperative partner of the plaintiff based on transport-related liabilities should exist even though the record does not have this feature, the difference in earnings and income and expenditure of the cooperative agreement of 15 percent to positive 1% of promotional and Educational Fund, even though the separation of law and contrary to the provisions of articles of association stipulated retained earnings allocated risturn so, income-expenditure is not done and the difference in the distribution of the 1% does not and Promotion Fund in the records unless otherwise indicated, the Cash Account in the accounting records instead of accounts receivables from payables to partners and associates are used as plates of income and expenditure of the bus shareholders ‘ current accounts separately detected that was being recorded, in this case fulfilled by partners under the name of transportation activities of the cooperative, hence quit their bets on behalf of our partners and value-added cooperative sayladik income tax liability is established, and the subject matter of the case is understood to have been grounded and the value added tax assessments made heavy flaw flaw.
In the event, although the rental was mentioned in the transaction related to the taxpayer facility subject to the lawsuit, the fact that the bus owned by the plaintiff was not rented and transferred to the cooperative is accepted by stating both in the lawsuit petition and in the defendant administration’s defense.
In this case, it is also impossible not to mention that the cooperative carries out transport activities. On the contrary, it is necessary to accept that the plaintiff, who reserves all his savings on the use of the vehicle, operates independently. Indeed, where has been obtained by the cooperative and the difference was calculated as the total of the partners come forth, and wasted expense transactions should be distributed at a rate of While this method of monitoring the law cannot be kept separate accounts for the bus plate as well as the partners, the partners pretend to operate almost independently made recognition, cooperative at this point, the partners of the income distribution follows a pattern that has followed. As a natural result of this, the cooperative has not fulfilled the obligations such as the reserve fund and the separation of the promotion fund, which it must fulfill in accordance with the law and the articles of association. However, it is already a requirement provided for in the articles of association that the partners be artisans who have actually acquired a profession of carriage and prove it with a document that they will provide from the tax office. The fact that the agreement between the cooperative and the partners on the operation of buses by the cooperative, the passenger transportation authorization certificate, the passenger ticket and other income and dec documents are issued on behalf of the cooperative does not change the true nature of the incident.
It is understood that the plaintiff acted in order not to be an income tax payer and to provide some tax benefits under the name of a cooperative, and in this way 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 from the taxes that the plaintiff must pay. The fact that some of the taxes declared and paid under the name of the cooperative and recorded as income in the treasury in this way were paid by the plaintiff as a member of the cooperative does not make it possible for the plaintiff to reduce the amount of tax to be paid on his behalf due to his taxpayer. Decalculation of the value added tax to be deducted from the calculated value added tax when declaring and paying the value added tax payable by the cooperative, which creates the difference between the value added tax declared by the cooperative and the total value added tax that the plaintiff and other partners must pay, in turn, since the dec requirements are not met by the plaintiff, there is no possibility to deduct the value added tax to be deducted from the calculated value added tax by law, so there is no legal connection between the taxes paid by the cooperative and the taxes due by the plaintiff.
In this case, since there is no violation of the law in the value added tax and the tue and severe tort penalties for 1995 issued on behalf of the plaintiff, the Tekirdağ Tax Court, which certifies the criminal tarhiyat subject to the case, has a decision to insist on it.
It was considered that the decision of the Tekirdağ Tax Court to insist on the rejection of the appeal request, which does not have a legal basis for the reasons described, will have to be certified.
ON BEHALF OF THE TURKISH NATION
The ruling was discussed by the General Assembly of the Tax Litigation Departments of the Council of State after examining the documents in the file:
The tax court’s decision to insist on dismissing the lawsuit filed against the tue and the heavily tainted punishable value added tax for the period 1998 on the basis of the tax inspection report on behalf of the plaintiff has been appealed.
in paragraph 1 of Article 1 of the Value Added Tax Code No. 3065, it is stipulated that deliveries 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 one who performs this operation in cases of delivery of goods and performance of services.
In the event engaged in transport operations, however, leaving unregister liability if the plaintiff as of the date of this activity, 31.12.1994, after becoming a partner in the cooperative … passenger transportation, motor carriers, owned bus transport activity, as determined by the cooperative and in a matter of hours doing this activity contracted during the printing cooperative suppressed in the name of passenger tickets, passenger lists, and invoices are used, revenue, and expense accounts of the value added tax and downloadable, to be certified according to the plate on behalf of the cooperative, and Value Added Tax are tracked separately in the book bus cooperative and the cooperative was given by the name of declarations that are not held by the plaintiff has been recorded by the cooperative to the extent that Plaintiff and transportation partners to bet on behalf of the value added tax liability from the date of 1.1.1995 it is understood that travels must be established and grounded.
It is in accordance with the rule of law described above that the plaintiff who carries out the transportation activity within the cooperative is a taxpayer of the 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 that must be dec by the taxpayer.
Cooperative research conducted by the court with the relevant tax Directorate, as made by the plaintiff disputed owned bus transportation activities in the period related to the missing Value-Added Tax has been paid after it has been determined whether the case should be decided according to the result to be achieved in the way of denial when the decision are found to be contrary to the law.
CONCLUSION: It was decided by majority vote on 13.6.2003 that the decision of the Tekirdağ Tax Court dated 30.5.2002 and numbered E: 2002/179, K: 2002/208 was overturned with the acceptance of the appeal request for the reasons described, and that there was no need to establish a judgment on the costs of the trial as they would be covered in the decision to be re-issued.
VOTE AGAINST :
1 – It is indisputable that the plaintiff organizes the records of the cooperative in which the stakeholder is located according to the bus license plates, and the income and expenses of the vehicle belonging to each stakeholder can be determined with the help of these records.
The ability of value added tax payers to deduct the tax they are charged from the tax they calculate due to the goods they deliver and the services they perform is based on the nature of the system and the purpose of keeping the tax burden on the final consumer. Although the deduction was made on the basis of the income determined from these records according to the number of license plates of the vehicle belonging to each stakeholder in the taxation cooperative records in the event, although there was no violation of the law in accepting this amount, insufficient registration of the same records in terms of deducting the tax charged will lead to the fact that the said burden will remain on the plaintiff in violation of the purpose of the legislator. Essentially, there is no discussion when the tax is also shown in the documents issued on behalf of the cooperative and the documents are recorded in the cooperative’s books.
The decision of the Tax Court made by the plaintiff to determine whether the carrying value added tax has been paid due to the missing and broken to be decided according to the results, without requiring formal presence also tax deductible if incurred to investigate the condition and the results to be decided according to the decision of the tax exemptions on the grounds that it lacked allow downloads in this aspect of the provision is also the case for the denial and corruption with a view to paragraph should 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 the downloadable of Value Added Tax to be certified in the book according to the plate on behalf of the cooperative and the cooperative Value-Added Tax declarations are tracked separately bus is given by where, it is understood that the administration does not have any determination that the plaintiff is doing any other transportation work unaware of the cooperative other than these account movements.
In this case, there is no determination that the plaintiff was paid incomplete value added tax due to the transportation activity, as well as the fact that the tax paid by the cooperative was requested from the plaintiff once, there was no tax loss due to the fact that it would cause duplication, tarhiyat should be abandoned, while the court decision rejecting the case should be overturned on the grounds that there was no hit in the court decision, I do not agree with the reason for the decision by voting that the decision should be overturned.
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