TRANSACTIONS WHERE BANKS SHOULD BE THE INTERMEDIARY

1- OBLIGATION INTRODUCED BY THE TAX PROCEDURAL LAW

As per Sub-paragraph 2, Paragraph 1, Repeating Article 257 of Tax Procedural Law No. 213, the Ministry of Finance and Customs is authorized to introduce the obligation that the Taxpayers document their collections and payments concerning their transactions with the documents arranged by banks, similar finance institutions or postal administrations and to determine the scope of the said obligation as well as the procedures and principles concerning the application.

The Ministry exercised its said authority in 2003 for the first time.

According to the General Communique on Tax Procedural Law Serial No. 320, it is mandatory that payments and collections be performed by having the banks or private finance institutions the intermediary, and that they be documented by means of the bank receipts or monthly statements arranged by those organizations.

Performing the collections or payments that remain the specified amount via the banks or private finance institutions is voluntary.

With the General Communique on the Tax Procedural Law Serial No. 320, it has been introduced the obligation that the business transactions to be performed by and between

- Tradesmen of class one and two,

- The ones whose earnings are determined by simple entry,

- Farmers obligated to keep books, and

- The self-employed and non-taxable artisans

and their collections/payments from/to the final consumers exceeding 8,000 TL be executed by having the banks or private finance institutions the intermediary and that such transactions be documented by means of bank receipts or monthly statements arranged by those organizations, beginning from 1 August 2003. Whether the said limit is exceeded or not is decided by considering the invoice amount.

For the taxpayers who do not comply with the application that the collections and payments exceeding a certain amount are documented via banks, special finance institutions or PTT, a special irregularity fine is applicable.

It is not obligatory that the payments and collections be made by having the said organizations as the intermediary, with regard to the transactions executed at:

- Capital market intermediary agents,

- Authorized foreign exchange offices,

- Notary publics,

- Land registry administrations.

With the introduction of the provision “If the transaction amount exceeds 8,000TRY in the cash flows which are between the partners of the business establishments and other real and legal persons and which are not of any commercial content, since these fall under the scope of the documentation obligation as well, the collections and payments shall be performed via banks, private finance institutions or PTT” of the General Communique on TPL Serial No. 324, the issue that payments will be made via banks, private finance institutions or PTT has been clarified under the scope of the obligation that also non-commercial cash flows be documented. In line with the said communique, it is required that also the salary and severance payments made to the employees that are over 8,000TRY be paid via banks, private finance institutions and PTT. Therefore, it is required that a payment exceeding the limit be made via banks, regardless of the limitation of 10 workers, as per the Labor Law. Furthermore, the same rule applies to the cash flows between the business establishment and the partners.

2- OBLIGATION INTRODUCED BY THE LABOR LAW

Article 32 of Labor Law No. 4857 has introduced the provision “Salaries, bonuses, gratuities and all kinds of remunerations of this nature are, as a rule, paid at the workplace or to a bank account opened exclusively, in Turkish currency….. As for paying the recruited workers’ salaries, bonuses, gratuities and all kinds of remunerations of this nature by depositing the same at a bank account opened exclusively, the Ministry of Labor and Social Security, Ministry of Finance and Ministry of State in charge of the Undersecretariat of Treasury are jointly authorized to make obliged the employers or third persons, by considering the type of tax obligation they are subject to, the size of the business establishment, the number of workers recruited, the province where the workplace is located and similar factors,.... Other procedures and principles concerning payment of the workers’ salaries, bonuses, gratuities and all kinds of remunerations of nature by means of depositing the same at a bank account opened exclusively are arranged via the regulations to be issued jointly by the ministries mentioned”.  

The Regulation on Payment of Salaries, Bonuses, Gratuities and All Kinds of Remunerations of This Nature become effective upon publication on the Official Gazette no. 27058, dated 18 November 2008.

According to the regulation, the employers and third persons whose workplaces and business establishments apply the provisions of the Labor Law are obliged to pay the net sum, which remains after legal deductions from all kinds of payments they will make to the workers within that month, via banks, if the number of the workers they have recruited across Turkey is minimum 10.

The employer or employer’s representative or third person who does not pay to the worker his/her receivables arising from the Labor Law or collective labor agreement or labor agreement via banks, although it is rendered mandatory under the scope of the said Regulation, is subject to the administrative fine by the relevant unit of the Ministry of Labor and Social Security as per sub-paragraph (a) of the first paragraph of article 102, Labor Law. (The amount of the fine is 134 TL for each worker and each month, for 2013).

3- OBLIGATION INTRODUCED BY THE LAW of OBLIGATIONS

Article 420/2 of the Law of Obligations No. 6098 has the provision "It is essential that the release agreement concerning the worker’s receivable from the employer be in written form, that a period of minimum one month be elapsed starting from the termination of the contract, as of the date of release, that the type and amount of the receivable as the subject of the release be specified clearly, and that the payment be made in full with regard to the amount of the claim and via a bank. The release agreements or certificates of release which do not comply with the said requirements are absolutely null and void”.

For this reason, it is compulsory that all salary and indemnity payments to be made upon termination of the labor contract of the worker be made via a bank. Otherwise, the certificate of release to be arranged is deemed invalid.

4- OBLIGATION INTRODUCED BY THE INCOME TAX LAW

As per sub-paragraph no. (2) of the first paragraph of the repeating article 257, Tax Procedural Law no. 213 and the General Communique on Income Tax No. 268, drawn up under the authority granted by the Ministry of Finance, it has been introduced the obligation that the collections and payments with regard to the rent, by:

1. The ones who earn a rent income of 500 TL or over on a monthly basis for each dwelling house, for dwelling houses;
2. The lessor who letting their workplaces and the lessee, for workplaces,

be documented by means of the documents arranged by banks or General Directorate of PTT (Post, Telegraph and Telephone), starting from 01 November 2008.

As per the provision specified in repeating article 355 of Tax Procedural Law, it is required that the ones who do not comply with the obligations introduced by the repeating article 257 be subject to special irregularity fine.

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