PETITION FOR REFUND OF STAMP DUTY

PETITION FOR REFUND OF STAMP DUTY

(Refund of stamp duty on family physician service contracts)

TO THE HONORABLE PRESIDENCY OF THE DUTY TAX COURT
OF ISTANBUL

PLAINTIFF : Dr. Hakkı Hakkıyendi – (Turkish Republic)
Address: …

REPRESENTATIVE : Attorney Irem EPÇAÇAN
Address: …

DEFENDANT : … Tax Office Directorate
Address: …

SUBJECT OF THE LAWSUIT: This is a request for the annulment of the decision dated …/…/… and numbered …, rejecting my request for a refund of … TL stamp duty collected from me by the … Tax Office Directorate for the period …–… related to a family physician service contract, and for the refund of the said amount as improperly collected stamp duty, together with legal interest.

NOTIFICATION DATE: …./…./20..

EXPLANATIONS:

1. Primary healthcare services the Family Medicine Law The Ministry of Health employs physicians who agree to work in family medicine practice through provincial health directorates/governorships on a contractual basis. The plaintiff a family physician at the Family Health Center in ... district of ... province ; and to perform this duty, signed the "Family Medicine Service Contract" dated .../.../... with the ... Governorship on behalf of the Ministry.
2. During the signing of the aforementioned contract, stamp duty of "... TL" was collected from the plaintiff; this amount was recorded as stamp duty in the records of the ... Tax Office Directorate. The family physician service contract signed between the plaintiff and the governorship/relevant administration is not considered a "contract involving a specific amount of money" subject to stamp duty legislation. Therefore, the collected amount is an unjustified collection and should be corrected and refunded . The plaintiff applied to the ... Tax Office Directorate with a petition dated .../.../... to remedy this illegality and requested the correction and refund of the stamp duty. However, the defendant administration rejected this request with its decision dated .../.../... and numbered ... ; this lawsuit is filed seeking the annulment of the said rejection and the refund of the unjustly collected stamp duty .
3. According to Article 1 of the Stamp Duty Law No. 488 , the documents subject to stamp duty are the written documents listed in Table (1) annexed to the Law, which prove a specific legal transaction. Article 9 of the same Law explicitly stipulates that the documents listed in Table (2) are exempt from stamp duty . Article 10 of the Law states that stamp duty will be collected proportionally or as a fixed amount, and the term "specific amount" refers to the monetary amount written on the document or calculable from the document . In Section 1 of Table (1) annexed to the Law, proportional stamp duty is stipulated for "contracts" if they contain a specific amount of money, and fixed stamp duty if they do not contain a specific amount of money.

4. However, the family physician service contract in question does not contain any fixed contract price or a fee directly stated as a figure on the contract . Payments to the physician are determined by reference to the provisions of the "Regulation on Payment Procedures and Principles for Personnel Employed by the Ministry of Health within the Scope of Family Medicine Practice" ; and are tied to variable criteria such as registered population, socioeconomic status of the place of duty, additional duties, and expense items. Therefore, the family physician service contract is not a contract with a fixed price determined on paper at the time of signing , but rather a document that refers to payments to be calculated later based on regulations and coefficients, without containing a specific amount of money . Consequently, there is no element of "specific money" that would necessitate the collection of proportional stamp duty on the contract within the meaning of the Stamp Duty Law

5. In practice, many disputes arose due to the collection of stamp duty on family medicine contracts; these disputes were resolved by the legislator with the amendments to the law published in the Official Gazette. As a result of the amendment made to the Annex (2) table attached to the Stamp Duty Law with Law No. 6111, service contracts relating to personnel employed in the cadres or contractual positions of public institutions and organizations were exempted from stamp duty. Physicians working in family medicine practice are also effectively in the status of contractual public personnel within this scope. With subsequent amendments to the law, it was explicitly stipulated that contracts made for the procurement of services according to the Family Medicine Law No. 5258 are exempt from stamp duty; it was regulated in a way that leaves no room for doubt that stamp duty will not be collected for family medicine contracts. 

6. Although these exemption provisions came into force on the dates of their respective Official Gazette publications, that there is an error regarding the subject of stamp duty for the period subject to appeal . Because, as explained above;

   • The contract does not include a "specific amount of money,"

   • Payments are determined entirely according to regulations and coefficients, and vary accordingly

   • A family physician contract, by its nature, is a document that is not subject to stamp duty.

   Therefore, the subsequently introduced exceptions are essentially of clarifying .

7. Number 213 Articles 116 and subsequent articles of the Tax Procedure Law according to, the tax errors made in the subject matter or tax baseThese are considered "taxation errors"; such errors, correction and return It should be resolved in this way.

   Stamp duty collected from the plaintiff due to the family physician service contract;

   • of the tax was misinterpreted,

   • Without regard to the "specific amount of money" requirement of the Stamp Duty Law ,

   • This has arisen as a result of family physician contracts being implemented without considering the exception regime

   In this case, the collection in question constitutes an "error in procedure," and the collected amount of ... TL should be considered an unjustified collection and returned to the plaintiff .

8. The defendant administration, by rejecting the plaintiff's request for correction and refund dated …/…/… with unjustified or unlawful grounds, acted contrary to both the Stamp Duty Law and the correction provisions of the Tax Procedure Law. This rejection an unlawful administrative act that should be annulled .

EVIDENCE:

• ...the family physician service contract signed with the Governorship (since the original contract is held by the Governorship, your Court will request its retrieval from the relevant administration),

• Receipts and/or payment slips related to stamp duty collection,

• The plaintiff's application for correction and refund and the defendant administration's letter rejecting this application ,

• Relevant legislation, precedents from tax courts and the Council of State,

• The tax file and all other legal evidence held by the defendant administration.

LEGAL GROUNDS: Tax Procedure Law, Administrative Procedure Law, Law No. 488 on Value Added Tax and other relevant legislation.

CONCLUSION AND REQUEST: For the reasons presented and explained above, and for which your Court will consider ex officio;

1. ... I request the CANCELLATION of the decision dated .../.../... and numbered ..., regarding the rejection of my request for correction of the stamp duty collection process for the family physician service contract relating to the period ...–... and for a refund of ... TL in stamp duty by the Tax Office Directorate.

2. collected due to the family physician service contract shall be RETURNED to the plaintiff as stamp duty collected erroneously, together with legal interest accruing from the date of collection.

3. The court costs and attorney fees shall be borne by the defendant administration.

I respectfully request and demand that a decision be made. Date: … / … / …

Plaintiff's Attorney,
Irem EPÇAÇAN,
Signature

APPENDICES:

1. Sample correction and refund application form

2. Rejection letter

3. Stamp duty payment receipt/invoice

4. Other information and documents, if any