Akademik Veri Yönetim Sistemi
Good Faith in Domestic and International Tax Law, 107 B, Cahiers de Droit Fiscal International Studies on International Fiscal Law, Sjoerd Douma,Craig Elliffe, Editör, International Fiscal Association, Rotterdam, ss.761-779, 2023
Summary and conclusions After the proclamation of the republic in 1923, Türkiye implemented a Roman-Germanic legal system based on Roman law, a type of system generally applied in continental European countries. In terms of entry into force of international conventions, based on article 90 of the Constitution and Law No. 244, tax treaties to which Türkiye is a party fall under domestic tax law. However, they are not on an equal level with the other tax laws in force, which take precedence over the provisions of domestic law, and a monistic approach has been adopted in terms of the entry into force of these treaties. Articles 14-16 of the Constitution of the Republic of Türkiye state basic rules on abuse of fundamental rights and freedoms in connection with good faith. These provisions are characterized as expressing the openness of the Constitution and Turkish law to international law. It is clearly stated in paragraph 5 of article 90 of the Constitution that international agreements have the force of law and that no appeal on the grounds that they are unconstitutional can be made to the Constitutional Court with regard to these agreements. It is stated that in the event of a conflict between national legal rules and international agreements concerning human rights, the provisions of the agreements shall prevail. International agreements on fundamental rights and freedoms are superior to domestic law. In Turkish law, good faith and honesty are regulated by articles 2 and 3 of the Turkish Civil Code No. 4721. However, in Turkish tax law, there is no legal provision explicitly referencing the principle of good faith. However, in the doctrine, especially with regard to the discussions on article 3-B of the Tax Procedural Law (the “TPL”), the opinion that the rule of honesty and the prohibition of abuse of rights in civil law also apply in terms of tax law has been put forward. In a holistic assessment it is possible to consider that a legislator, when determining the “truth” in terms of article 3-B of the TPL, will turn to objective elements, seek compliance of the nature of the transaction with economic, technical, and commercial requirements, and, in this regard, not attribute value and meaning to the subjective elements. There is no provision in Turkish law stipulating that it is necessary to act in good faith in the enactment of a law. However, it is possible to identify the main characteristics that a law, or, more specifically, a tax law, should have. These determinations help to reveal the bond that should be established indirectly, if not directly, with good faith. The rules regarding interpretation in tax law are regulated in article 3 of the TPL. The content and application of this article subtitled “Application of Tax Laws and Proof,” is one of the most controversial issues of Turkish tax law. The article determines the interpretation methods in tax law. These are literal, systematic, historical, and teleological interpretation methods. In the law, there is no explicit reference to good faith in the implementation of the above-mentioned interpretation methods. There is no general article of law that corrects or compensates taxpayers for a tax result in their favor if the taxpayers believe in good faith that they are acting in accordance with an article of tax law despite having violated the law. However, implementation of articles of the law with favorable results for the taxpayer, although these results are indirect, can be mentioned. There is no binding provision in the Turkish tax system requiring the tax administration to act in good faith toward taxpayers. However, the declaration of taxpayer rights contains some commitments that we can characterize as good faith on the part of the administration, although they are not binding. We can also consider some of the regulations contained in the TPL to be indirectly related to good faith on the part of the taxpayer or the tax administration. In Turkish law, the execution and entry into force of tax treaties are not different than for other types of treaties. The sources of regulations on international agreements in the country are article 90 of the Constitution, Law on Granting Authority to the President to Conclude Certain Agreements No. 244, Law on the Conduct and Coordination of International Relations No. 1173, and Presidential Decree No. 9. In terms of the interpretation of international agreements, Türkiye is not a party to the Vienna Convention on the Law of Treaties (the “VCLT”). However, the VCLT is construed as a source of customary law in principle in terms of the application of tax treaties. Therefore, the VCLT can be applied directly to the interpretation of issues related to tax treaties. In Türkiye, there has been no explanation concerning good faith in any judicial decision related to tax cases. Neither is there any explanation concerning good faith in administrative texts. However, in terms of non-tax disputes, the 8th Chamber of the Council of State consistently decides with reference to the principle of pacta sunt servanda contained in the VCLT. These references by the Council of State are important as a starting point, although they have not yet been included in tax disputes. In practicing law in Türkiye it is not general practice to explicitly discuss tax treaty overrides. However, regarding various contingencies and disputes, in some cases it has been determined that domestic law provisions have caused treaty overrides. In addition, it has been determined that some of the regulations in effect regarding the taxation of the digital economy have led to treaty overrides. To prevent such disputes, which are not uniform in character among countries, I, as the branch reporter, believe that it would be appropriate to add the principle of good faith directly to the UN or OECD Models. This will encourage the contracting parties to include this principle in the content of the agreement during agreement negotiations and will help to ensure legal certainty and security.