318 NEWSLETTER 2021 • Capital commitments payable that cannot be fulfilled in due time despite being committed by the shareholders, cannot be considered as selling goods or services free of charge or at low price, or lending money without interest or at low interest within the scope of Article 13 of the CTL. • It is not possible to evaluate a resource transferred from the company to the shareholder based on the failure to fulfill the capital commitment payable. • It cannot be claimed that failure to calculate default interest due to unfulfilled capital commitments payable causes disguised profit distribution through transfer pricing3. Conclusion The sanctions to be applied in case of failure to fulfill capital commitments by shareholders are regulated in detail in the TCC, and the capital commitment debt is strictly protected. However, sanctions for non-fulfillment of the capital commitment debt are not specifically spelled out in the CTL, and it is not included in the scope of “buying or selling goods or services” under Article 13 of the CTL. In addition, the subject is not within the scope of disguised profit distribution through transfer pricing. Nevertheless, recent reports by tax inspectors make it clear that the view of the Ministry of Finance is that companies making use of interest-free money due to the capital commitment debt that the shareholder had committed but could not fulfill in due time leads to a disguised profit distribution through transfer pricing. This is in contrast to the approach taken by the courts, which have held that the issue cannot be evaluated in terms of transfer pricing. Although existing judicial decisions are contrary to the opinion of the Ministry of Treasury and Finance, it is recommended that companies pay heed to the approach of the Ministry, since many companies are subject to tax inspection when their shareholders do not fulfill their capital commitment debt. 3 The decisions of the Ankara Regional Administrative Court 1st Tax Lawsuit Department, No. E.2017/2028, K.2018/482, 22.03.2018; No. E.2017/2028, K.2018/482, 05.07.2017; The decision of the 4th Chamber of Council of State, No. E.1997/4274, K. 1998/5542.
RkJQdWJsaXNoZXIy MjUzNjE=