“Ne Bis in Idem” Principle in Tax Criminal Law: A Different Look From Liability Provisions
Murat Batı, Uğur Hakan GafarTax penalties arising from tax misdemeanors committed during the administration and liquidation of legal entities are imposed on legal entities instead of the natural persons who commit these misdemeanors. Legal representatives and limited company partners have responsibilities from the tax penalties imposed on the legal entity. More than one tax penalty can be imposed on some people within the scope of these responsibilities. While these penalties can be both administrative and judicial fines, imprisonment can also be imposed. Hence, in this article, the effects of such liability provisions on the principle of “ne bis in idem” are discussed. The “ne bis in idem principle” states that a person cannot be punished or tried more than once for the same act. In this article, the concept of “the same person” was particularly analyzed in tax misdemeanor and penalty applications. Some criticisms were made concerning the fact that the tax penalties imposed by the tax administration cannot be examined within the scope of the principle of “ne bis in idem”, particularly within the context of the personality principle. In order for the criticisms voiced made to be accordant with the wording and spirit of tax law, comparative evaluations were made with other disciplines. The criticisms made have been evaluated by comparing them with other disciplines, in order to make the tax law compatible with the letter and spirit. In particular, the relevant articles of the Tax Procedure Law and the Law on Collection Procedure of Public Receivables were examined.
Vergi Ceza Hukukunda “Ne Bis in Idem” İlkesi: Sorumluluk Hükümleri Açısından Farklı Bir Bakış
Murat Batı, Uğur Hakan GafarTüzel kişilerin idare ve tasfiyesi sırasında işlenen vergi kabahatlerinden doğan vergi cezaları, söz konusu kabahatleri işleyen gerçek kişiler yerine, tüzel kişiler adına kesilmektedir. Bu şekilde tüzel kişi adına kesilen vergi cezalarından tüzel kişilerin kanuni temsilcileri ile limited şirket ortaklarının sorumlulukları bulunmaktadır. Bu sorumluluklar kapsamında bazı kişilere birden fazla vergi cezası kesilebilmektedir. Bu cezalar gerek idari gerekse adli para cezası olabilirken ayrıca hapis cezası da verilebilmektedir. Bu nedenle, bu makalede söz konusu sorumluluk hükümlerinin “ne bis in idem” ilkesine etkileri tartışılmıştır. “Ne bis in idem ilkesi”, bir kişinin aynı eyleminden dolayı birden fazla cezalandırılamayacağını veya yargılanamayacağını anlatmaktadır. “Ne bis in idem ilkesi” ceza hukukunda uygulanabilirken vergi kanunlarımızda maalesef çok fazla dikkate alınmamaktadır. Bu makalede; vergi kabahat ve ceza uygulamalarında özellikle “aynı kişi” kavramı üzerinde durulmuştur. Vergi idaresi tarafından verilen vergi cezalarının “Ne bis in idem ilkesi” kapsamında değerlendirilemeyişini özellikle şahsiyet prensibi kapsamında ele alıp farklı eleştirilerde bulunulmuştur. Yapılan eleştiriler vergi hukukunun lafzına ve ruhuna uygun hale gelmesi için de özellikle diğer disiplinler ile de karşılaştırılarak değerlendirilmiştir. Özellikle konuyla alakalı Vergi Usul Kanunu ve Amme Alacaklarının Tahsil Usulü Hakkında Kanun’un ilgili maddeleri uyarınca irdelenmiştir.
In the criminal law, it has been acknowledged that legal persons with no mobility have criminal liability in accordance with the principle of individual criminal responsibility. However, in Article 333 of the Tax Procedure Law, it is regulated that the tax penalty will be imposed on the legal person due to tax misdemeanors during the administration and dissolution of legal persons. This is the first step in moving away from the principle of personality in terms of tax misdemeanors. However, in accordance with the principle of personality, not legal persons, but natural persons representing the legal person who commits the criminal act or misdemeanor should be responsible for these penalties.
Additionally, the second step in moving away from the principle of personality in tax misdemeanors takes place during the collection of these fines, i.e. at the execution stage. According to Article 10 of the Tax Procedure Law, and Articles 35 and repeated 35 of the Law No. 6183 on the Procedure for the Collection of Public Receivables, legal representatives of legal entities and limited company partners may be liable for tax penalties that cannot be collected from the legal person. The common point of these articles is that they allow the execution of the tax penalties imposed on the legal person on natural persons. It is not possible for a punishment given to a person to be executed on another person in accordance with the principle of personality.
Another problem created by leaving the principle of personality, as explained above, reveals itself in the principle of “ne bis in idem”. The principle of “ne bis in idem” basically describes the punishment or trial of a person once for the same act. In order to apply the principle of “ne bis in idem”, there must be a repetitive punishment or trial. Moreover, this repetitive punishment or trial must result from “the same action”. In other words, punishing a person for different actions does not fall within the scope of the ne bis in idem principle. However, in order to apply the principle, the owner of the action subjected to repeated punishment or trial must be “the same person”.
The European Court of Human Rights and the Constitutional Court firstly examine whether the owner of the action is “the same person” in the application of “ne bis in idem” and if the “same person” condition is met, the same action and repetition inspection is initiated. However, if the “same person” requirement is not fulfilled, a refusal decision is made stating that the principle cannot be applied without examining the other elements. Indeed, the Constitutional Court rejected the individual application with the allegation that the legal person was given a tax loss penalty and the legal representative was imprisoned due to the same act and that this was against the principle of “ne bis in idem”, “... ..at the end of the administrative process, it is understood that the alleged violation of the applicant does not fall within the scope of the principle of not being tried or punished twice due to the same act, since the decision of conviction was given against the applicant at the end of the judicial process, the tax penalty was given against the Company for which the applicant was the authority ... ”, without examining the elements of “same action” and “repetitive punishment”.
The abovementioned problem derived from leaving the principle of personality manifests itself in the aforesaid decision of the Constitutional Court. The reason for this is that, although the tax loss penalties are imposed on the legal person, the legal representatives continue to be liable for these tax loss penalties. Accordingly, if the tax loss penalty imposed on the legal person cannot be collected from that person, this time attempts will be made to collect the penalty from the legal representative. In other words, the tax loss penalty will be executed on the legal representative. In the above-mentioned decision, although the legal representative does not have a tax loss penalty imposed on his/her behalf, it is possible that the legal representative is liable for the penalty imposed on the legal person. To put it differently, after the date of the decision of the Constitutional Court, there is a possibility that the tax penalty incurred cannot be collected from the legal person, but from the legal representative who is the applicant. It is clear, in this case, that the principle of “ne bis in idem” cannot be fully protected.
The solution to the problem is in the source of the problem. Accordingly, the penalties arising from tax misdemeanors should be imposed on natural persons who commit acts in accordance with the principle of personality, rather than on legal persons. Thus, the “same act” and “repetitive punishment” elements can be examined without being stuck in the “same person” element in the application of the “ne bis in idem” principle. On the other hand, in the current situation, courts’ determination of the “same person” element on the basis of responsibility will prevent the principle from becoming dysfunctional. Accordingly, if the legal representative is likely to be liable for the tax penalties imposed on the legal person, it should be decided that the “same person” element is provided and the other elements should be examined. Consequently, the inconsistencies that obstruct the application of the principle would be eliminated to some extent.
