3rd Department of the Council of State
Base Number: 2017/2173
Decision Number: 2021/1449
“Justice Text”
Republic of Turkey
COUNCIL OF STATE
THIRD FLAT
Base Number : 2017/2173
Decision No: 2021/1449
APPLICANT (DEFENSE): … Head of Tax Office/…
ATTORNEY: Atty. …
OPPONENT PARTY (PLAINTANT): …
ATTORNEY: Atty. …
SUBJECT OF THE REQUEST: … It is requested that the decision of the … Regional Administrative Court … Tax Litigation Office … dated and numbered E:…, K:… regarding the appeal filed against the decision of the Tax Court, dated … and numbered E:…, K:…, is reviewed and overturned by appeal.
JURISDICTION PROCESS:
The claim subject to the lawsuit: According to the tax analysis report prepared on behalf of the plaintiff, who is a lawyer, by taking data from the tax technique report, which includes the determination that he left some of the income he obtained from the cases he followed within the scope of his self-employment activity, one floor tax ex officio for the year 2010. Income tax with penalty is related to the request for the abolition of the ex officio tax with a double tax loss penalty for all periods of the same year and the special irregularity penalty imposed in accordance with the 1st clause of the 353rd article of the Tax Procedure Law No. 213.
Summary of the decision of the Court of First Instance: Within the scope of the information obtained from the UYAP data, the plaintiff’s tax base difference is determined by considering the money deposited in all accounts in banks as attorney’s fees, with all the files filed in 2010 or registered as being closed, and the attorney’s fees have been collected in the same year. In the event where it is understood that this has been reached, the information and documents submitted to the file upon the request of the information and documents related to the files followed by the plaintiff with the interim decision of the Courts, to what extent it is related to the attorney’s fee in the files followed by the plaintiff, the period in which it actually ended and whether the attorney’s fee is collected or not. While it is necessary to base the determination on concrete data, it is necessary that such a determination has not been made, and all money entered into the bank accounts of a person who is engaged in attorneyship activities, unless the contrary is proven, attorney’s fee is paid. Since it is not possible to evaluate the bank account as a preliminary assessment, it is possible to transfer money to the bank account for all kinds of work and transactions, and the contrary of this situation must be revealed by referring to the statements of the persons within the scope of the attorney’s relationship, the assessment made over the base difference based on the incomplete examination and research and the special deducted The tax and penalties that are the subject of the lawsuit were abolished on the grounds that the irregularity penalty was not in compliance with the law.
Summary of the decision of the Regional Administrative Court: The appeal application was rejected in accordance with paragraph 3 of Article 45 of the Administrative Procedure Law No.
CLAIMS OF THE APPLICANT: Since it is concretely determined in the tax technique report prepared about the plaintiff that some of his revenues are not recorded and declared, it is claimed that there is no illegality in the assessment made and the special irregularity penalty imposed, and the decision is requested to be reversed.
DEFENSE OF THE OPPONENT PARTY: No defense was given.
AUDITING JUDGE OF THE COUNCIL OF CONSULTATION OPINION: It is considered that the appeal request should be rejected and the decision in accordance with the procedure and law should be approved.
ON BEHALF OF THE TURKISH NATION
After hearing the explanations of the Investigation Judge and examining the documents in the file, the decision was taken by the Third Chamber of the Council of State:
LEGAL EVALUATION:
The final decisions of the regional administrative courts can be overturned by appeal, in the presence of one of the reasons stated in Article 49 of the Administrative Procedure Law No. 2577.
The decision examined by the appeal was in accordance with the procedure and the law, and the grounds of appeal put forward in the petition were not considered to require the reversal of the decision.
DECISION RESULT:
For the reasons explained;
1. Rejection of the appeal,
2. … APPROVAL of the decision of the District Administrative Court … Tax Case Office dated … and numbered E:…, K:…,
Pursuant to Article 50 of the Administrative Procedure Law No. 3.2577, it was unanimously decided on 22/03/2021 that the file be sent to the court of first instance in order to ensure that this decision is notified to the parties and a copy is sent to the Tax Litigation Office.
