Turkish Labor Law
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In economy supplement of Habertürk newspaper of last Saturday, news about the effect of resolution of the Constitutional Court on taxation of wages and right of action on returning of taxes overpaid was communicated widely. However, when I read the explanations of miscellaneous persons, especially of non -judiciary persons, I was confused as well. I had to reevaluate the subject in my column as my opinion on that subject was taken and published.
The Income Tax tariff given in Article 103 of the Income Tax Law was changed with Article 1 of 5479 No Law and binary tariff applied as 15-20-25-30-35 percent for paid workers and 20-25-30-35-40 percent for other Income Tax payers was brought to single tariff with four rates. It was forecasted that all incomes subjected to Income Tax would be taxed in rates varied between 15-20-27-35 percent and wage incomes, together with other income elements, were subjected to new tariff with varying tax bracket rates and amounts. In the new tariff enforced with the said law, it was stated that incomes more than 40.000 TL that subject to the Income Tax would be taxed in rate of 35 percent.
With the resolution dated 15.10.2009, numbered E. 2006/95 K. 2009/144 and published in the Official Gazette dated January 8, 2009, the Constitutional Court considered the statement of ” more than …..in rate of 35 percent” that came after the statement of ” 9190YTL of 40.000YTL for more than 40.000YTL” in Article 103 of the Income Tax Law, as amended with Article 1 of 5479 No Law, was contrary to the Constitution in respect to “wage incomes” and resolved its cancellation on condition that it would be enforced 6 month after its publishing date. In fact, as this resolution was explained after October 15, it did not create a surprising effect.
After the date of 15.10.2009 when the resolution of cancellation was explained, the paid workers whose gross incomes according to the tariff applied in 2009 exceed 50.000TL and the part of their wages that exceeds the said figure is taxed in rate of 35 percent can bring an action against their employers related to taxes imposed on them by presenting a reservation petition in appendix of the withholding tax return. In fact, in our opinion, there is not need a reservation to bring an action by paid workers. Because the paid workers in status of tax payer neither calculate the tax nor pay it to the administration. These proceedings and procedures are carried out by employers in the capacity of tax responsible that forms a third person between the administration and tax payer , according to the authorization by law.
The period of bringing an action is 30 days after the date when the payment is made to the paid workers. In this action, cancellation of tax difference between 27- 40 percent must be claimed not cancellation of the whole taxation.
There has been hesitation in two points of application on bringing actions. Firstly, in cases when the wage payments are delayed, whether the bringing action period will be calculated according to the payment. Pursuant to the Administrative Jurisdiction Procedures Law, the bringing action period in taxes paid by means of withholding will commence to process from a day following the date the payment is made. However, as the Income Tax Law connects the withholding to the payment date in cash or on account, it must be consider the payment here as payment ” in cash” or ” on account”. For this reason, in calculation of the bringing an action period, in cases the payment in cash is delayed, the date when the wage right is gained, in other words the payroll is made, must be considered in calculation of the bringing an action period.
The second hesitation on that matter is that whether the action will be brought collectively by the employer for and on behalf of the paid workers in that situation. In application, some employers bring an action by collecting power of attorneys or representation documents from the paid workers. İn our opinion, this is not possible. According to the understanding of justification, such an action must be brought by tax payers. Because the property holding that decreases because of tax is the property of paid worker in status of tax payer. In case the action is finalized against the administration, the receivable right will establish in favor of the paid worker.
In the service contract made between the paid worker and employer, determination of the wage in net is not an element effecting that situation.
The cancellation resolution of the Constitutional Court related to the paid workers will be enforced in six months after the resolution is published in the Official Gazette. However, the cancellation award became fixed with the resolution of the Supreme Court officially announced to the Ministry of Finance before the resolution is published in the Official Gazette. On the other hand, the period recognized by the Constitutional Court for execution is referred to legislative organ.
As it is adopted that the courts can not take the provisions that are fixed as contrary to the constitution as a base in their decrees, we believe that those actions will be won.
However, I must also state that it is impossible for the paid workers who overpaid the tax depending on the high rate cancelled by the Constitutional Court for periods no action was brought before or after October 15, 2009 to make a claim for correction of the overpaid taxes and take back them by means of judgment.
Resource: Referans Newspaper / A.Bumin Doğrusöz
