316 NEWSLETTER 2021 The concept of “related party” is broadly defined under Article 13 of the CTL as follows: Shareholders of the Corporation; legal entities or individuals related to the corporation or its shareholders; legal entities or individuals which control the corporation directly or indirectly in terms of management, supervision or capital; legal entities or individuals which are controlled by the corporation directly or indirectly in terms of management, supervision or capital; spouses of shareholders of the Corporation; ascendants and descendants of shareholders or their spouses; and persons who are linked to shareholders or their spouses up to the third degree by direct blood relationship or marriage. In addition, in the implementation of the disguised profit distribution through transfer pricing, purchases, sales, manufacturing and construction transactions, leasing and leasing transactions, borrowing and lending, bonuses, wages and similar transactions are evaluated as the purchase or sale of goods or services under all circumstances. When failure to fulfill the capital commitment payable is evaluated within the scope of Article 13 of the CTL, it is undoubted that the shareholder of the company is a related party for the purpose of transfer pricing. However, it is generally considered that the capital commitment should not be included in the scope of “buying or selling goods or services” listed in the Article. The relationship between the capital commitment payable not fulfilled by the shareholders and the transfer pricing regulation can be established as follows: (i) If the capital commitment payable is not fulfilled, the company will not be able to use the amount committed by the shareholder and owed to the company, and there will be a loss of interest up to the amount owed.(ii) Therefore, the shareholder does not transfer the committed capital to the company and uses it by itself. (iii) No income is transferred to the company at the rate of income obtained by the shareholder thanks to the amount of capital commitment debt not fulfilled by the shareholder2. 2 Levent, Başak: “Bir Şirket Ortağının Sermaye Taahhüt Borcunu Zamanında veya Hiç Ödememesi Halinde Bu Durum Transfer Fiyatlandırması Yoluyla Örtülü Kazanç Dağıtımı Olarak Kabul Edilebilir mi?”, Lebib Yalkın Mevzuat Dergisi, http://www.lebibyalkin.com.tr/mevzuat/diger/makale/bir-sirket-ortaginin-sermaye-taahhut-borcunu-zamaninda-veya-hic-odememesi-halinde-bu-durum-transfer-fiyatlandirmasi-yoluyla-ortulu-kazanc-dagitimi-olarak-kabul-edilebilir-mi.html, (Access date: 18.08.2021).
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