A. 7 of the Law. Examination of the First Sentence of Paragraph (2) of the Article
7 of the Law No. 7194. in paragraph (2) of the article on the subject of the case; digital service providers who are digital service tax payers or their authorized representative in Turkey have been notified to fulfill their obligations to file returns and pay taxes related to taxes covered by Tax Procedure Law No. 213, and if these obligations are not fulfilled within thirty days from the announcement of this situation on the website of the Revenue Administration, access to the services offered by digital service providers -until these obligations are fulfilled- it has been stipulated that the blocking will be decided by the Ministry of Treasury and Finance and that this decision will be sent to the Information Technologies and Communication Authority to notify the access providers, and that the need for blocking decisions will be fulfilled by the access providers within twenty-four hours from the notification.
It has been evaluated that the rule, which allows the introduction of barriers to access to the services offered by digital service providers, limits the freedom of enterprise of digital service providers.
The measure provided for by the rule subject to the lawsuit is a special tax security application introduced for digital service tax payers. Therefore, the rule serves the Jul-tain purpose of ensuring the realization of the public benefit targeted by the taxation activity. Accordingly, it is understood that the rule is based on a legitimate constitutional purpose.
On the other hand, due to the abstract nature of the digital economy, the traditional tax system and rules are insufficient to effectively tax this sector. Accordingly, it has been assessed that it is convenient and necessary to prevent access to the services offered by digital service providers, who are digital service tax payers who do not fulfill their obligations to file returns and pay taxes related to taxes covered by Law No. 213, in order to achieve the purpose of fulfilling these obligations. As a matter of fact, blocking access to the services offered by service providers will be valid until the moment of fulfillment of these obligations in accordance with the rule.
However, a reasonable balance should be struck between people’s freedom of enterprise and ensuring that they will receive taxes. Dec. In this context, the sanction provided for in the rule subject to the lawsuit should not impose an excessive and unbearable burden on the owners of the enterprise.
Considering the function of the Internet, one of the basic tools of our time, and the convenience it provides, it is natural to resort to some measures through the website where they conduct all their activities, instead of traditional tax security measures, which are understood to be insufficient to ensure that digital service providers who do not have a physically fixed workplace, usually operate in an electronic environment, meet their tax obligations. However, for the purpose that needs to be protected by law, it should be sought that the method of legal protection defined in the law, that is, the vehicle, be proportionate in order to achieve this goal. In this context, if there is a measure that may cause less damage to the rights and freedoms of the individual, it should be satisfied with it or this measure should be applied first.
Within this framework, blocking access to the services offered by digital service providers who do not fulfill their obligations to file tax returns and pay taxes within the scope of Law No. 213 on time means blocking access to the entire website, which is the most severe sanction. However, it has been assessed that the decision to block direct access, while it is possible to establish a gradual tax security measure, imposes an excessive burden on service providers, and Decays the reasonable balance that should exist between freedom of enterprise and public interest. In this respect, it has been concluded that the restriction imposed on the freedom of enterprise by the rule is disproportionate and violates the principle of proportionality.
The Constitutional Court has decided that the rule is contrary to the Constitution on the grounds described and that it should be annulled, and that the annulment provision should enter into force nine months after the publication of the decision in the Official Gazette.
B. 41 Of the Law. Provisional 4 Added to the Law No. 3332 by its Article. Examination of the First Paragraph of the Article
According to the rule subject to the lawsuit; Until 31/12/2014, it was arranged that any vehicles sold directly or indirectly under the name of a share or a share at a nominal or premium value by joint stock companies whose shares are deemed to have been offered to the public due to the number of shareholders and whose shares are traded on the stock exchange will be added shares, payments to these partnerships will be considered made in exchange for shares and a partnership relationship will be considered established, and the non-dematerialization of these shares will not prejudice the rights of the partnership.
Since all payments made to the joint stock companies specified in the rule are considered to have been paid in exchange for shares, the ownership rights of the joint stock partnership conflict with the savers who make such payments. The state is obliged to take certain measures within the scope of its positive obligations regarding the protection of the right to property. The fact that the regulations stipulated by the legislator cause immoderation against one of the parties in establishing the balance of interests may not be compatible with positive obligations in terms of property rights. In this context, the interests of both parties should be balanced as much as possible and the process should not be concluded in such a way as to cause an immeasurable consequence against one of the parties.
It is understood that the purpose of the rule in question is to protect the property rights of other shareholders who own shares in these companies, to guarantee the rights of third parties who enter into commercial relations with these companies and to ensure that the company continues its activities under free market conditions. However, according to the rule, the interests of savers have been significantly affected depending on the determination of the nature of the legal relationship between savers and companies. Dec. The powers of savers to file lawsuits within the framework of the provisions of the default of receivables and to initiate enforcement proceedings related to this receivables have been eliminated. Even if the savers have been turned into shareholders, the savers do not have the opportunity to leave the partnership. Although there is no legal obstacle to the transfer of the share, it is difficult to state with certainty that the value of the share will meet the value of the receivable arising from the savings made to the company. When these issues are taken into consideration, it has been understood that the rule subject to the lawsuit does not provide effective solutions for establishing the balance of interests between companies and savers and leads to a shift of the balance of interests in favor of companies. Dec. On the other hand, it has also been observed that there are no legal guarantees to ensure that savers do not suffer loss of rights due to their payments.
In the light of these evaluations, it was concluded that the rule imposes an excessive burden on savers by Deconstructing the balance of interests that should be observed between savers and companies in the context of property rights to the detriment of savers and does not balance the conflicting interests of the parties.
The Constitutional Court has decided that the rule is contrary to the Constitution and its cancellation on the grounds explained.