Petition for the Annulment of the Special Irregularity Penalty

Petition for the Annulment of the Special Irregularity Penalty

TO THE DUTY TAX COURT
OF ANKARA

PLAINTIFF: Ali YILMAZ (Turkish Republic Identity Number: 12345678910)
      Bahçelievler Neighborhood, 24th Street, No: 16/4 Çankaya / ANKARA

ATTORNEY: Attorney ……………………………
      Address

DEFENDANT: Çankaya Tax Office Directorate – ANKARA

DATE OF SENTENCE: 12/09/2024
SENTENCE NUMBERS: 2024/ÖU-3254

NOTICES
Date: 12/09/2024
Type: Special Irregularity Penalty (Tax Procedure Law Article 355)
Amount: 7,500.00 TL
Period: 2023/3rd Provisional Tax Period

SUBJECT:
imposed on the plaintiff pursuant to Article 355/1-2 of the Tax Procedure Law No. 213, based on the decision of the assessment committee, due to the failure to submit the provisional tax provisional tax period .

EXPLANATIONS

The plaintiff is a taxpayer registered with the Çankaya Tax Office and operates as a small-scale sole proprietorship. The tax return for the third provisional tax period of 2023 could not be submitted on time due to communication problems with the accounting office and health issues. The defendant administration referred the case to the assessment committee, assessed provisional tax based on the tax base determined by the committee, and also a special irregularity penalty of 7,500.00 TL . However, during this process, neither the tax office nor the assessment committee requested any information, documents, or ledgers from the plaintiff in writing; the penalty was applied directly without fulfilling the written notification and warning requirement stipulated in Article 355/2 (repeated) of the Tax Procedure Law.

Article 55 of the Tax Offices Procedure Directive regarding referral for assessment stipulates that in cases requiring ex officio assessment , the referral form for assessment must include the inspection report, minutes, tax return for the relevant period (if any), and documents used to determine the tax base. According to Articles 74 and 75 of the Tax Procedure Law No. 213, the assessment commission;

Regarding the files sent to him,

To conduct the necessary research in order to determine the tax base as accurately as possible

Requesting books and documents from the taxpayer in writing,

If the ledgers and documents are not presented or are not found to be suitable as evidence, the court is obliged to make a decision based on other available information and documents.

In this specific case, the plaintiff was not summoned to submit books and documents, nor was any on-site inspection conducted to determine whether operations were continuing or to ascertain the income and expenditure status. The assessment committee's decision did not detail the grounds and justifications for the assessment ; it merely stated the tax base figure. However, according to Article 31/8 of the Tax Procedure Law, assessment committee decisions must clearly state "the grounds for the assessment and explanations regarding the assessment." Since this was not done, both the assessment process and the related penalty application became procedurally irregular

Article 355/2 (repeated) of the Tax Procedure Law No. 213 clearly states:

“For the implementation of this provision, the relevant parties shall be notified in writing that penal provisions will be applied if, in the notifications regarding the fulfillment of the information and submission obligation, no response is given within the time allotted for providing information, incomplete or misleading information is provided, or books and documents are not submitted within the time allotted for submission.”

It includes the provision.

According to this regulation, in order for a special penalty for irregularities to be imposed under Article 355 (repeated):

First, a written notification must be given to the taxpayer.

This notice should clearly state a specific deadline and indicate that a penalty will be applied if the information or document is not provided within that timeframe.

The plaintiff was not notified at any stage of the provisional tax period;

Request for information or documents,

Call for submission of ledgers,

No written warning was given regarding the penalty for failure to comply within the specified time .

In this way, imposing a special irregularity penalty solely on the grounds that a provisional tax return was not filed, without the conditions stipulated in Article 355/2 of the Tax Procedure Law being met, is contrary to the letter and purpose of the law.

Consequently, the punishment should be lifted

Regarding the plaintiff;

The process of referring the case for evaluation was not conducted in accordance with the legislation

The assessment committee's decision did not provide reasons or grounds for its decision

The written warning and deadline requirement stipulated in Article 355/2 (repeated) has not been met.

For all these reasons, the special irregularity penalty imposed due to the 2023/3 provisional tax period unlawful in both procedural and substantive terms and must be annulled.

EVIDENCE

1. Penalty notice dated 12/09/2024 and numbered 2024/ÖU-3254

2. Decision of the appraisal committee and referral for appraisal (summoning from the defendant)

3. Tax office taxpayer files, inspection and correspondence records (subpoena from the defendant)

4. Books and documents relating to the plaintiff's business activities (to be submitted if necessary)

5. All kinds of legal evidence.

LEGAL GROUNDS

Tax Procedure Law No. 213 (especially Articles 31, 74, 75, and 355), Tax Office Procedures Directive, Administrative Procedure Law No. 2577, and other relevant legislation.

CONCLUSION AND REQUEST

For the reasons stated and explained above, and also taking into consideration other matters that your Court may consider ex officio;

1. Based on Article 355/2 of the Tax Procedure Law No. 213, the special irregularity penalty of 7,500.00 TL imposed on the plaintiff for the 2023/3 provisional tax period is hereby CANCELED.

2. The court costs and attorney fees are to be borne by the defendant administration

I respectfully request and demand that a decision be made on behalf of my client.

…/…/2024

Plaintiff's Attorney,
Irem EPÇAÇAN,
Signature

Attachments:

1. Power of attorney sample

2. penalty notice

3. (If any) notification certificate and other documents