"The Principle of 'No Punishment Without Law' in Special Irregularity Penalties"

TO THE DUTY TAX COURT
…………..

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PLAINTIFF:
… Food Marketing and Trading Ltd. Co. – Address

ATTORNEY:
Attorney's Name and Surname – Address

DEFENDANT:
… Tax Office Directorate – Address

TYPE OF PENALTY:
Special Irregularity Penalty

FINE AMOUNT:
… TL

PERIOD:
…

TAX/PENALTY NOTICE NO:
…

DATE OF NOTIFICATION:
…/…/…

SUBJECT:
Our request for the annulment of the special irregularity penalty imposed on us with notification number … dated …/…/….

1. The plaintiff company was fined … TL for special irregularities pursuant to Article 353/2 of the Tax Procedure Law No. 213, on the grounds that there was a lack of customer information on the receipt obtained from the POS device during a tax audit conducted at its branch in … district of … province .

2. dated …/…/… and numbered …are based solely on the assumption that “no document was issued to the customer.” However, during the same audit, an invoice was issued, and the receipt is only a payment document. Therefore, the penalties stipulated in Article 353/2 of the Tax Procedure Law have not been met.

3. An error on a receipt or slipis not among the documents explicitly listed in the Tax Procedure Law (VUK). Imposing administrative sanctions through circulars issued by the Ministry of Finance to the principle of "no crime or punishment without law" enshrined in Article 38 of the Constitution . Therefore, the special penalty for irregularity imposed on us lacks legal basis.

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II- GROUNDS FOR THE LAWSUIT

1. The Principle of No Punishment Without Law:
   The Constitutional Court's January 30, 2019, numbered E.2016/135, K.2019/9, explicitly states that "administrative fines can only be applied to acts explicitly prescribed by law, and subordinate regulations such as circulars and regulations cannot create criminal sanctions." In our case, the type of document alleged not to have been regulated is prescribed by circulars, not by law, and thus is unconstitutional.

2. Assumptive Determination:
   According to Article 353 of the Tax Procedure Law No. 213, in order to impose a special irregularity penalty, it must be concretely and undisputedly determined that the document was neither prepared nor given to the buyer. However, the prepared report only uses the phrase "missing receipt," and there are no camera recordings from the scene, customer statements, or other evidence proving that the sale was actually made without documentation.

3. Supreme Court Decisions: In its decision dated April 19, 2016, numbered 2015/2345 E., 2016/3782 K., the 4th Civil Chamber of the Supreme Court emphasized that "In order for a tax penalty to be imposed, there must be a violation of the obligation to issue documents explicitly stipulated by law, and this violation must be proven with concrete findings."
   

4. Imposition of a Penalty Despite the Existence of a Document:
   The audit report was prepared solely based on interpretations of the receipt. However, the client company issued an invoice for the same sale, and the claim that no document was actually issued is incorrect. The 7th Civil Chamber of the Supreme Court of Appeals, 2018/2174 E., 2019/1347 K., accepted that "a special penalty for procedural irregularities cannot be applied in cases where the non-issuance of a document cannot be proven."

5. Risk of Double Penalty:
   Imposing penalties for both VAT and document issuance related to the same event leads to double penalty. The Constitutional Court's E.2018/102, K.2020/33 clearly states that imposing double penalties is contrary to the rule of law principle enshrined in the Constitution.

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III- EVIDENCE:

1. Tax/penalty notice dated …/…/…

2. Sample invoices and POS slips,

3. Inspection report,

4. Examples of Supreme Court and Constitutional Court decisions,

5. Witness statements, on-site investigations, expert opinions, and all other legal evidence.

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IV- LEGAL GROUNDS:

Articles 257, 353/2 of the Tax Procedure Law No. 213, Articles 38, 125, 129 of the Constitution, Law No. 5326 on Misdemeanors, and other relevant legislation.

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V. CONCLUSION AND REQUEST:

Taking into account the reasons stated above and the matters that your Court shall consider ex officio;

• The cancellation of the special irregularity penalty of … TL imposed with the notification dated …/…/… and numbered …

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

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

… / … / …
Plaintiff's Attorney
Name and Surname
Signature

                                                                                       YAĞMUR YORULMAZ, LAW FACULTY STUDENT