Criminal Liability in Joint Stock and Limited Liability Companies in Terms of Tax Procedure Law

In our study regarding the criminal liability of the chairman and members of the board of directors of joint stock and limited companies, the principle of the personality of the penalties in article 20 of the New Turkish Penal Code, which entered into force on 1 June 2005, will be taken into consideration. The provisions regarding the principle of the personality of the penalties regulated in both Article 38 of our Constitution and Article 20 of the TCK numbered 5237 are as follows:

In the 38th article of our Constitution, the phrase “Criminal responsibility is personal” has been clearly stated and in the 20th article of TCK numbered 5237, which entered into force on 1 June 2005, the principle of “Personality of Punishments” is “Criminal responsibility is personal. Nobody can be held responsible for someone else’s act ”.

The principle of personality of criminal responsibility means that the criminal officer is responsible for the punishment and that third parties other than the offender are not punished for the behavior described as crime [1].

It will be understood that the principle of personality of criminal responsibility is based on the responsibility of defects in criminal law, and that objective responsibility, that is, perfect responsibility, has been abandoned. As a matter of fact, in the article 23 of the TCK numbered 5237, there is a provision regarding the fact that a person cannot be punished more than his fault. This provision is as follows: “If a verb is heavier than it is meant or causes another result to occur, one must act at least negatively in order to be held responsible for it”. According to this provision, a punishment that is heavier than the person’s fault cannot be ruled out [2].

After these explanations, it is necessary to evaluate the criminal responsibilities of the joint stock company and the limited company board members in terms of Tax Procedure Law No. 213.

In the first paragraph of Article 10 of the Tax Procedure Law No. 213, if the legal persons are taxpayers and tax officers, the duties written in the 359th article of this law are processed in the last paragraph of the 333th article of the same law. The penalties stipulated in Articles. and 360 are included in the “provision for those who commit these acts”.

In practice, if a Tax Crime Report related to a joint stock company is issued and sent to the relevant Chief Public Prosecutor’s Office, statements of the head of the joint stock company and all members of the board are taken. In addition, if the joint stock company consists of family members, it is observed that lawsuits have been filed against all family members. However, considering the legal regulations, some communiqués and the decisions of our Supreme Court on this matter, it will be understood that no lawsuits should be filed against the chairman of the board of directors and all members of the board of directors.
According to the 317th article of the Turkish Commercial Code, joint stock companies are determined in the 319th article of the same law with the provision “It is managed and represented by the Board of Directors”, and if it is to be done, how to do this is determined. At least one member of the Board of Directors is authorized to represent the company ”. First of all, it is necessary to determine which members of the company are authorized to represent and bind the company.

Nuri Ok and Ahmet Gündel include the following phrases about criminal liability in joint stock and limited companies on the 46th page of their tax evasion crimes. “As stated in the general explanations in the section titled Responsibility in legal persons, the measure under the responsibility of the legal representatives is that they are considered as criminal interlocutors who know the details of the act and have a role in its formation according to the nature of the event. Otherwise, it is not all of the legal representatives shown in laws or contracts [3]. ”

In the Communiqué No. 143 of the Tax Procedure Law, published in the 17402 issue of the Official Gazette dated 14.07.1981; “In accordance with the 10th article of the Tax Procedure Law, it has been stated that all members of the board of directors should not be held responsible in criminal cases, the members of the board of directors are responsible, who know the details of the crime and have a role in their formation [4].”

In the General Communiqué of the Tax Procedure Law No. 306, published on 18.06.2002 and number 24789 of the Official Gazette, the Ministry of Finance stated that the principle of the principle of the punishment was based on, and that a criminal complaint should not be filed in case of using a false or misleading document. has been [5].

When we look at the decisions of our Supreme Court, it is seen that these statements have stabilized. In the decision of the Criminal General Assembly of the Supreme Court of Stability dated 17.12.1990 and numbered 1990 / 9-312 E., 1990/349, it was stated that “the legal representative responsible for the form should not be punished, and those who know the details of the crime should be punished”.

The 11th Criminal Chamber of the Supreme Court of Appeals, in its decision dated 9.5.2002 and numbered 2002/1198 E., 2001/3995, “In the event that it is understood that the crime was not committed in action and consensus, criminal responsibility depends on the principle of punishment.