Qualification of Administrative Practices as a Source for Turkish Tax LawMehmet Alpertunga Avci
In considering the relationship between positive and normative law, one must determine whether customs, one of the grounds of written law and administrative practices, and the manifestations of customs in practice, would be accepted as a source of law. Because, for example, an uncodified custom could not be a source of tax law, it would be impossible to take taxational action based solely on custom as the underlying principle of the legality of taxes. Nevertheless, it is apparent that legally codified customs will be the source of tax law. However, it is less certain whether the administrative practices that become visible when a law leaves enforcement to the tax administration’s discretion could be considered a similar legal source. The close relationship between tax and administrative law could be taken advantage of to overcome this uncertainty on tax-related administrative practices since most of the concepts and principles of tax law are built upon the theories underlying administrative law. This study aims to examine and reveal the potential of administrative practices as a legal source in Turkish Tax Law. Methodologically, the paper focuses on administrative law doctrine on custom and administrative practices and the Constitutional Court and Council of State’s decisions referring to the principle of legal security. Consequently, the article concludes that we should regard administrative practices, left to the administration’s discretion by the law, as a legal source of tax law to provide legal stability, certainty, and predictability. Such reliance will also protect acquired rights and meet fair expectations on the condition of any actions taken not being against the law.
İdarî Teâmüllerin Türk Vergi Hukukuna Kaynak Olma VasfıMehmet Alpertunga Avci
Pozitif ve normatif hukuk arasındaki ilişki ele alınırken; yazılı hukukun dayanaklarından olan örf ve âdetin ve bunların uygulamadaki tezahürü olan idarî teâmüllerin, vergi hukukunun kaynağı olarak kabul edilip edilmeyeceğinin belirlenmesi gerekir. Zira vergilerin kanunîliği ilkesi gereğince, vergi kanunlarında yer almayan bir örf ve âdetin vergi hukuku açısından kaynak olması ve buna dayanarak vergilendirme işleminin tesis edilmesi mümkün değildir. Örf ve âdete atıf yapan kanunlar dairesinde, bunların vergi hukukuna kaynak olacağı ise açıktır. Oysaki vergi kanunlarında idarenin takdir yetkisine bırakılan konularda görünür hale gelen idarî teâmüllerin birer kaynak olarak kabul edilip edilemeyeceği konusu belirsizdir. Çoğu vergi hukuku kavramı ve ilkesi idare hukuku teorisi üzerine inşa edildiğinden; vergi ve idare hukuku arasındaki yakın ilişkiden istifade ederek, vergisel idari teâmüllere ilişkin bu belirsizliğin üstesinden gelinebilir. Bu çalışma, idarî teâmüllerin Türk Vergi Hukuku’na kaynak olma potansiyelini ortaya koymayı amaçlamaktadır. Yöntemsel olarak; idare hukukunun örf ve âdete ve idarî teâmüllere yönelik doktrininden, Anayasa Mahkemesi ve Danıştay’ın hukukî güvenlik ilkesine atıf yapan kararlarından yararlanmıştır. Nihayetinde, kanunların idarenin takdir yetkisine bıraktığı konularda oluşan idarî teâmüllerin, kanunî idare ve vergilerin kanunîliği ilkelerine aykırı olmaması kaydıyla; hukukî istikrarı, belirliliği ve öngörülebilirliği sağlamak, kazanılmış hakları korumak ve haklı beklentileri karşılamak için vergi hukukunun kaynağı olarak değerlendirilmesi gerektiği sonucuna ulaşmıştır.
Sources of law consist of norms that create, improve, and constitute a basis of legal rules. These rules legally bind everyone and may differ according to place and time. Nonetheless, they include varying degrees of importance and power in themselves. In the consensus, these sources should usually be enacted as written. However, some rules of social order are unwritten and formed over time by themselves with no need for codification. Therefore, these societal norms constitute an unwritten legal source if and to the extent they address some fundamental features of the culture. Custom (and usage) can be a prominent source of the unwritten law.
While custom is the source of law that maintains its importance in private law, it is hard to make the same claim for administrative and tax law in conformity with the legality of administration and legality of taxes. This controversial uncertainty intensifies even more in administrative practices, which may also be considered a kind of reflection of legal custom. However, it is virtually impossible to view these practices with the same lens. The primary reason is that administrative practices do not incorporate many features of legal customs. Therefore, if administrative practices were to be regarded as a source in tax law, they would have to be evaluated within the scope of the stable behavior of the administration rather than pursuant to the custom.
This study focuses on the potential of administrative practices – with particular reference to the underlying customs –as a source of tax law and the problem of their compatibility with the principle of “legality of administration” and “legal security,” which is based on the rules, concepts, and principles of administrative law. As part of this focus, it argues that administrative practices should be one of the sources of tax law to ensure legal security in matters left to the discretion of the administration laid down by the laws, however only when not contrary to the principle of legal administration and the principle of legality of taxes.
This study is composed of three parts. The first part (Feature of Custom Being a Legal Source in Law) assesses and embraces the lexical meaning of “custom.” It then examines custom characteristics necessary for it to be considered a source of law as well as the differences and similarities with administrative practices. The purpose of making a detailed explanation of custom here is to determine what they are and are not and thereby propose a particular line between custom and administrative practices. The second part (The Place of Customs and Administrative Practices in Administrative Law) provides a doctrinal treatment of customs and administrative practices and their acceptance as a source for administrative law. The section also analyzes the contribution of custom to form the basis of the consideration of meaning, scope, institution, concept, and principle for the last section. Finally, the last part (The Place of Customs and Administrative Practices in Tax Law), representing the main focus and thesis of the study, covers the distinction between primary and secondary sources of law and their explicit and implicit place in tax law. It further expounds on their role as a legal source for tax law as part of Tax Procedure Law, Inheritance and Gift Tax Law, Income Tax Law, Value Added Tax Law, Stamp Tax Law, and the Act of Fees. Afterward, in order to provide a principled basis for whether administrative practices can be considered a source of tax law, the paper returns to the principles of legal administration, the legality of taxes, and legal security, which are the requirements of the rule of law, concerning the doctrine and the decisions of the Constitutional Court and the Council of State.
This study concludes that when customs find their way into the tax laws, they should be recognized as the source of that tax law. Consistent with this expression and under the principles of the legality of administration and taxes, this idea illustrates that administrative practices probably should not pass for a source in those areas where the tax administration has a subordinate authority. However, the author concludes that administrative practices have formed and gained stability for a long time. In other words, the discretion granted to the administrations by tax acts should count as a source of law to protect the legal security principle. Consequently, tax administration should implement preventive regulations for the loss of rights, and not renounce its regular and stable practices. It should act objectively, transparently, comprehensibly, and accessibly. At the same time, the tax administration should refrain from arbitrary treatments and unpredictable practices while taking care of the principles of equality and administrative stability. Finally, the administration should carefully protect individual vested interests and legitimate expectations in areas it exercises discretion.