Crime of not providing books and documents

Article 253 of the Tax Procedure Law No. 213 states: "Those who are obliged to keep books according to this Law are obliged to keep the books they keep and the documents written in the third part for a period of five years, starting from the calendar year following the year to which they relate." It includes editing.

Article 256 of the VUK states: "The real and legal persons mentioned in the previous articles and those who are subject to the obligations imposed by the repeated Article 257 shall submit and examine, upon the request of the competent authorities and officers, all kinds of books, documents and report cards that they have to keep and the records in micro fiche, micro film, magnetic tape, floppy disks and similar media regarding the information they have to give, and all the information and passwords required to access these records or make the records readable, within the retention period." They have to offer it for Expressions are included.

According to Article 359 of the same law, it is regulated that those who do not submit their books and documents upon request for examination will be charged with tax evasion and criminal sanctions are envisaged.

PERSON OF THE CRIME OF HIDING BOOKS AND DOCUMENTS

According to the Turkish Penal Code, only real persons can be the perpetrators of the crime.

In ordinary partnerships, the faults of the partners in the formation of the crime are examined. The severity of the exercise of the power of representation and the limits of the authority are investigated. If all partners are at fault, all of them will be punished. However, if, as a result of the investigation, a partner or partners who cannot be linked to the crime are found, no punishment can be imposed on them.

He is the authorized representative responsible for other legal entities. However, if the power of representation is used by more than one person, an investigation will still need to be conducted. In the investigation to be carried out, the role and fault of the representatives in the formation of the crime will be examined and the perpetrator will be determined as a result of this investigation.

As a matter of fact, in the decision numbered 2019/9078 E. of the 11th Criminal Chamber of the Supreme Court of Appeals, "If there is more than one legal representative of the legal entities and the crime is not committed in action and consensus, the decision taken at the extraordinary general assembly meeting published in the trade registry gazette, considering that the responsibility will not belong to the person responsible for the form of the crime, but to the representative who knows the details and has a role in its formation, according to the severity and limits in the distribution of the authority of representation, depending on the principle of individuality of the punishment." Accordingly, the duties and responsibilities of the defendants in the company, who are members of the board of directors, who are understood to have group A signature authority, are brought to the company on the date of the incident, the articles of association of the company and the division of labor decisions between them, if any, and the organization chart is evaluated to determine the duties and responsibilities of the defendants in the company; the taxpayers who issued the invoices subject to the crime are heard as witnesses, recalling Article 48 of the CMK, and they are asked on what legal relationship they gave the said invoices, whether they know the defendants, all the collected evidence is evaluated, and according to the results, the legal rights of the defendants are determined. It is erroneous to make a judgment based on incomplete research without taking into account the need to determine the circumstances." An evaluation was made on how to determine responsibility by making a judgment as follows.

FORMATION OF THE CRIME OF HIDING BOOKS AND DOCUMENTS

1-The crime of hiding books and documents is a crime that can be committed intentionally.

If the perpetrator has no intention of hiding the books and documents, the elements of the crime will not occur and therefore punishment will not be imposed. If the taxpayer has lost the book, he must prove it.

2- The existence of books and documents must be proven through notary records and other records.

In a decision of the 11th Criminal Chamber of the Supreme Court of Appeals, "In order to constitute the crime of not presenting the books and documents stipulated in Article 3599/a-2 of the Law No. 213, the existence of the books and documents whose existence is proven by documents such as notary certification and document printing-delivery form must be requested for examination. "The documents must be brought and examined, and according to the results, the legal status of the defendant must be determined," he said. According to the decision, if the books and documents cannot be proven, a crime will not occur.

3- Submission of books and documents must be requested in writing.

Explanations about where and how the books and documents will be examined are given below under the heading of Examination of Books and Documents. If the procedure is not followed, no crime will occur.

4- The request for presentation of books and documents must be notified to the taxpayer in accordance with the procedure.

The principles regarding the notification are in Articles 93-103 of the VUK. It is arranged among the articles. If there is an irregularity in the notification, no crime will occur. As a matter of fact, in the decision numbered 2018/4326 E. of the 11th Criminal Chamber of the Supreme Court of Appeals, this situation is stated as follows: "In the public case filed for the crime of not presenting the books and documents, in order to determine the material fact beyond doubt; by asking the participating administration whether there are documents proving the existence of the books and documents requested to be presented, taking into consideration that the letter requesting the books and documents is duly notified to the last known address of the defendant, and depending on the result, the legal status of the defendant is evaluated." and must be determined.".

5- There should be no force majeure situation.

If one of the situations listed above is missing, the crime of not submitting books and documents will not occur.

REVIEW OF BOOKS AND DOCUMENTS

According to Article 139 of the Tax Procedure Law, "Tax examinations are essentially carried out at the workplace of the person subject to examination." In the same article, "It is impossible to carry out the inspection on-site due to essential reasons such as unavailability of the workplace, death, abandonment of the job, or if the taxpayer and those responsible for taxes wish, the inspection can be carried out in the office." With the expressions in the form, it is regulated that the examination can only be carried out in the apartment in case of the existence of the situations listed in the article. After the existence of one of these situations is recorded by the tax office, a notification must be issued to the taxpayer and a period of 15 days must be given to submit his books and documents. If the tax office requests the submission of books and documents without proving the existence of exceptional circumstances in Article 139, a crime will not occur.

"The tax office conducting the examination should be asked whether the existence of one of the exceptions in Article 1399/2 of Law No. 213, which allows the accounts to be examined in the office, has been determined in advance, whether the activity continues in the workplace, and if there is a determination of an examination outside the workplace, the document should be requested to be submitted to the file. Otherwise, the defendant should be acquitted since the notification made has no legal validity." Supreme Court 11th CD. 2017/7025 E.

PENALTY FOR NOT PROVIDING BOOKS AND DOCUMENTS

VUK's 359a/2. According to the article, the penalty for the crime is imprisonment between 18 and 36 months. The trial of the crime is carried out by the criminal courts of first instance.

In case of a sentence of 2 years or less, HAGB provisions may be applied if other conditions are met.

The statute of limitations for the case is 8 years.