Crime of issuing and using fake invoices

In Turkish legislation, although the regulations regarding criminal sanctions are included in the Turkish Penal Code, special regulations have been introduced for some acts. Tax evasion crimes, which are among these special regulations, are prosecuted by Article 359 of the Tax Procedure Law.

Article 359 of VUK defines fake invoice as "A document prepared as if there is a real transaction or situation, even though it does not exist, is a fake document." It is defined by its expressions. Although the fake invoice apparently meets all legal requirements, it does not have any underlying relationship. However, it is essential that there is a fundamental relationship underlying the invoices.

Using or issuing fake invoices are separate and independent crimes. For a crime to occur, either the issuance or use of the document is necessary and sufficient. In this state, the crime of issuing and using false documents is an optional and mobile crime. If two acts occur together, two separate punishments will be imposed.

Forging an invoice is sufficient to constitute the crime of issuing a false invoice. It does not need to be used separately.

Perpetrator of the crime of issuing and using fake invoices

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.

HOW TO DETECT A FAKE INVOICE

The Supreme Court has determined some criteria to determine whether an invoice is fake or not. These criteria are listed as follows in the decision numbered 2018-11/47 E. of the General Criminal Assembly of the Supreme Court of Appeals;

"- The taxpayer is obliged to prepare BA and BS forms, that is, notification buying (BA) or notification selling (BS) forms. Whether these forms meet each other,

-Declared base, base difference, tax difference,

- Income Tax declaration (this declaration includes gross sales, sales costs, profit and loss, sales discounts, returns, etc.)

- In the tax audit of invoices or documents received by the taxpayer from the competent authorities, all physical and formal conditions of the document such as tax number, name of the printing house, document receipt date, document type, serial number of the invoice or document can be checked in the e-Archive system at www.efatura.gov.tr.

- Whether the physical condition of the business has the capacity to comply with the declared base.

- Does the person issuing or using the document have the commercial competence to make the sales specified in the invoice, are the machinery and personnel sufficient?

- Is it suitable for the commercial competence of the company or taxpayer? Does it have physical structure and equipment?

- Has the taxpayer received money in and out of banks in proportion to the documents submitted?

As can be seen, under Article 359 of Tax Procedure Law No. 213, it is possible to determine whether the document used in the crime of smuggling is fake in terms of 'content' or not, using general accounting information, other evidence and methods within the scope of tax technique.''

PROOF OF THE CRIME OF ISSUING AND USING FAKE INVOICES

In order for the crime of issuing and using fake invoices to occur, the invoice used must first meet the conditions specified in the law. For detailed information about the mandatory elements that must be included in the invoice, you can review our article titled INVOICE AND POWER OF PROOF.

If the invoice contains the mandatory elements, this time the trial will be concluded within the framework of the following criteria in terms of determining the truth. These criteria are explained in the decision of the 11th Criminal Chamber No. 2019/7625 K.

1- Showing the invoices to the defendants and the witness and asking whether the writings and signatures belong to them, and if they say that they do not belong to them, providing samples of writings and signatures and obtaining a report from an expert institution or organization as to whether the writings and signatures on the invoices belong to the defendants or the witness,

2- If it is determined who the writings and signatures on the invoices belong to, a criminal complaint should be filed against this person and if a lawsuit is filed, it should be combined with this case,

3- If it is understood that the writings and signatures on the invoices do not belong to the defendants or the person concerned;

a- Inquiring from the relevant tax office whether a counter-examination report has been prepared for the companies determined to have used the invoices, and if so, bringing certified copies,

b- Investigating whether a lawsuit has been filed against these taxpayers; If a lawsuit has been filed, the files should be brought and examined, and certified copies of the documents related to this case should be produced and placed in the file,

c- Hearing the company officials or individuals using the invoices as witnesses, reminding them of their right to refrain in accordance with Article 48 of the CMK; Asking them, based on which legal relationship they received the invoices from, whether they knew the defendants and whether they had any involvement in receiving the invoices,

4- When necessary, to determine whether the invoices are real purchase-sale equivalents;

a- Investigating whether there are shipping and transportation delivery notes, delivery and receipt documents showing the flow of goods and money belonging to the company issuing the invoice, bank accounts that are in line with commercial customs and sufficient to prove that the price has been paid, and valid documents compatible with the cash register,

b- Then, it can be listed as having a mutual expert examination on the commercial books and documents of the company that issues the invoices and the companies and individuals that use them, taking into account the documents submitted by the defendant during the appeal phase.

PUNISHMENT FOR ISSUING AND USING FAKE INVOICES

According to Article 359/b of the Tax Procedure Law, the lower limit of the penalty for the crime of issuing and using fake invoices is 3 years and the upper limit is 5 years. The trial is carried out by the Criminal Courts of First Instance. If more than one fake invoice is issued or used within a one-year period, the penalty is increased by applying the provisions regarding chain crimes.

The statute of limitations for the case is 8 years.