Activities such as production, presentation, sales, insurance, distribution, and payment of goods and services are possible via computer networks with e-commerce. E-Commerce presents major physical differences from conventional commerce, and therefore many arguments have been raised regarding the problems of regulating and taxing e-commerce under the old commercial and tax regimes applicable.
As e-commerce evolved rapidly, Turkey began to customize the current tax systems and take major legislative measures. Along with these legislative decisions, an Internet Tax Office was established, enabling taxpayers to access their own declarations and make submissions accordingly. This chapter will try to analyze these and other electronic adaptation measures taken by Turkey and the administrative bodies who regulate such measures.
II. E-Commerce Coordination Committee and Internet Supreme Council
In 1997 the High Council for Science and Technology of the government established a special committee dealing with e-commerce issues, and a special administration for science and technology called TUBITAK and the undersecretary of foreign trade of the prime ministry were assigned to this project. The E-Commerce Coordination Commission (ETKK) held its first meeting in 1998, and three different work groups were formed to draft necessary resolutions for the government to regulate e-commerce.
The first target of ETKK was to promote e-commerce security and legalization via digital signature verifications according to applicable global standards. In addition, the project aimed to provide a secure zone with privacy and integrity of information on the Web so that this secure zone would abolish the technical, legal, and financial limitations of e-commerce in Turkey.
The researches of ETKK proved that development of e-commerce was directly related to the validity of agreements between individuals, the conditions of these agreements, and the ability to prove capacity of consent. Therefore, as stated above, the significance of signatures in e-agreements under the provisions of the Turkey Code of Obligations and the "proof capacity in e-agreements" under the provisions of Code of Civil Procedure, the Turkish Commercial Code, and the Criminal Code became the focus of attention by the Turkish authorities when adapting its legislation to e-commerce transactions. The European Union (EU) and the United Nations Commission on International Law (UNCITRAL) standards were the main sources for this legislative work in Turkey. Specifically, the government of Turkey used the Austria's Electronic Signature Code and related Austria Regulations, dated May 2000. After numerous studies and reports, ETKK enacted the main regulations on e-commerce in Turkey, which will be covered later in this chapter.
In 2001, the Ministry of Communication organized an Internet Supreme Council (ISC) to deal with issues related to the Internet and its effects. The ISC's primary duties were the planning, coordination, and monitoring of the Internet infrastructure and its operations in Turkey. Accordingly, the ISC also cooperated with ETKK and other administrative bodies of the government in updating the Turkish legislation.
The Law of Electronic Signature No. 5070, dated January 15, 2004, is the most important legislation on e-commerce in Turkey. This main regulation provides validity to e-signatures for all legal transactions and provides commercial security for e-commerce activities in general.
UNCITRAL published the ground-setting arrangements on e-signature by drafting the UNCITRAL Model Law on Electronic Signatures in 2001. ETKK made studies and proposed that the Turkish government and the parliament adapt this model law into the Turkish domestic legislation.
The UNCITRAL Model Law was drafted to cover the concepts of declaration of intent such as the legal offer and acceptance in electronic transactions. Likewise, electronic data was described as information that is created by electronic, optic, or similar tools and then sent, received and stored. The UNCITRAL Model Law defined an electronic signature as any symbol, process, or voice that is attached to an electronic record as proof of signature.
An e-signature depends on technologies of public-key cryptography and asymmetric crypto system to provide high security. The concept of e-signature under Turkish law is very general, and its description includes scanned and digitized handmade signatures of people; recorded biological features of people, such as retina, fingerprints, or voice; and numerical signatures. Numerical signatures differ from signed text, and they are acquired by using mathematical functions.
According to Article 3 of the Turkish E-Signature Law, "Electronic signature is a data which is annexed to another electronic data or a related electronic data for identification purposes." Thus, the law aims to provide flexibility on the electronic identification of parties and their consents, subject to available technology that evolves almost every day.
The same principles of offer and acceptance for general transactions among parties found in the Turkish Law of Obligations are applicable to e-commerce transactions. If signature verification is not sought for a non-electronic transaction to become valid, e-signatures will not be subject to verification in electronic transactions. The law aims to harmonize the standards applicable for electronic or non-electronic transactions. Therefore, agreements that require an attached signature under the Law of Obligations will require an e-signature if they are made in electronic format.
In e-commerce, validity of identification of the parties, their consents, and security of information among them must be guaranteed by the technical and legal infrastructure. The most important tool for such purpose, therefore, is an e-signature.
According to Article 4 of the Turkish E-Signature Law, a secure electronic signature shall have the following:
- 1. Exclusivity for connection verification to the signature holder
- 2. A secure electronic-signature generator tool
- 3. A qualified electronic certificate to identify the signature owner
- 4. Security for the e-signing data of the signature holder after the data has been signed
In Turkish law, the value of a signature is generally designated in the Law of Obligations in Article 13, which states that "written agreements have to possess the signature of the party undertaking such obligation; unless otherwise stipulated, a signed letter or a telegraph signed by such party may fulfill this requirement." According to a former Article 14 of the Law of Obligations, titled "Signature," a "signature has to be handwritten by the one who assumes obligation." In order to satisfy such signature requirement, the E-Signature Law amended the above-mentioned clause, and a new clause was added to Article 14, stating that "[h]andwritten signatures have the same evidence power as secured electronic signatures." Therefore, e-signatures are granted the same legal value as handwritten signatures under Turkish law.
The E-Signature Law not only triggered changes to the traditional Law of Obligations, as above mentioned, but also Article 295/A of the Code of Civil Procedure was amended in order to provide electronic signatures and relevant documentation data the value of a legal instrument that could be presented as proof in legal proceedings.
The E-Signature Law also developed requirements for security and verification tools for e-signatures as follows:
- 1. Security generator tools shall have unique generation data.
- 2. Recorded generation data of electronic signature cannot be taken out of such generation tool and shall be private.
- 3. Generator tools shall be preserved from any third-party access and be protected against counterfeiting.
- 4. Generator tools shall not allow anyone except the signature owner to change data to be signed and shall allow viewing of that data before the actual e-signing.
- 5. Signature verification tools shall show data for verifying signature party.
- 6. Verification tools shall operate secure and accurate verification processes and shall show verification results without change to signature holder.
- 7. Verification tools shall store and present the signed data securely.
- 8. Verification tools shall determine reliability and validity of the electronic certificate used for signatures and shall present the results to the verifying person.
- 9. Verification tools shall present identity of the owner of signature to verifying person.
- 10. Verification tools shall provide conditions for determining any changes made after signature that may affect the verification.
Hence, even if the above conditions are present, e-signature cannot be used for all transactions according to Turkish law. Article 5 of Turkish E-Signature Law establishes that legal transactions that require a mandatory formal ceremony or a mandatory format cannot be verified by e-signature. For instance, the actual sale or commitment to sell real estate property in Turkey could not be concluded electronically, since such a transaction is governed by specific legal ceremony to be concluded before a designated legal authority.
IV. Internet Tax Office
The Turkish Internet Tax Office (ITO) has been in service since 1999 as part of the Tax Office Full Automation Project (VEDOP). The ITO is one of the government offices created to achieve transparency of public administration and individuals' access to government records. The ITO, online at www.gelirler.gov.tr, allows tax subjects to track down their tax processes and their own information online. This Web site also allows taxpayers to make their private consumption tax payment online.
The ITO consists of corporate tax administration, income tax administration, and motor Vehicles tax administration offices. Individuals could search for information at the Web site such as tax identity information, certification numbers, notices of assessment and revenues, matured and nonmatured tax information, additional notifications regarding terms and assessment, revenue information, electronic processes of tax collection, and prohibitions to travel abroad for nonpaying individuals.
Taxpayers could also search for vehicle information registered to automated tax administrations, information on motor-vehicles tax due, traffic ticket information, and all other collections of information from the mentioned Web site. Daily information of the automated tax administrations is transferred to the central database via VEDOP.
Electronic Bank Collection Project (EBTIS) also evolved within the structure of VEDOP. EBTIS helps process tax-payment transfers through banks. Accordingly, electronic banking payments eased the processing of over ten million tax-payment receipts. The ITO also enables searching for motor vehicles that are registered to automated tax offices for traffic ticket information, vehicle tax information, and other such information.
The ITO has been in service for corporate taxpayers since 2000 and for income taxpayers since 2001. Since 2006, corporate tax declarations and value-added tax (VAT) returns are totally automated, and all such services are handled online.
V. Electronic Tax Statements
In early 2004, the Ministry of Finance proposed some tax amendments that were later adopted in the Tax Procedure Code No. 213. The amendment allowed taxpayers to submit their tax declarations and statements in electronic format to achieve efficiency. The goal was to allow taxpayers to use available electronic technology for simple, quick, and inexpensive tax submissions, and to allow tax administrations better access to their own filings for auditing purposes.
The Communiqué of Tax Procedure Code No. 376 published by the Ministry of Finance in October 2007 is the most recent legislation introducing a significant legal change in Turkey. Tax Procedure Code No. 376 allowed income and corporate taxpayers, taxable due to their commercial, agricultural, and professional activities, to submit their withholding tax returns, VAT returns, and temporary income tax statements online.
Corporations or individuals submitting their tax statements and tax payments online must, themselves or through their accountants, obtain an access password from the respective tax office. Then, the tax office issues a document titled "Electronic Statement for Interagency Authorization Application Form and Covenant" (ESIAA) to evidence the commitment between the tax subject and the tax administration. This document also serves for identification purposes. In addition to facilitating tax submissions and payments online, taxpayers in Turkey are now offered free software for tax statement filing, which was developed by the tax administration to ease taxpayers' electronic tax submissions.
VI. Consumer Rights in E-Commerce
The Law for the Protection of Consumers No. 4077 is one of the most important e-commerce regulations enacted by the government of Turkey and an important tool to facilitate e-commerce transactions. Yet, the customer protection afforded by this law was limited, and it was only expanded by Law No. 4822 from 2003, which amended Law No. 4077.
The amendments made in 2003 were very significant and became a boost for e-commerce in Turkey. The new law redefined the definition of e-commerce "goods" to include software, audio, video, and other such abstract goods that are traded on the Internet, along with other conventional goods and services. The law also reclassified online agreements as "long-distance agreements" and provided consumers with the most advantageous protection measures for online transactions.
Long-distance agreements are defined by Article 9/A of Law No. 4822. This article defines long-distance agreements as those made by using written paper, phone, and electronic forms, without coming face-to-face with consumers, in order to provide goods or services either immediately or with delay. Law No. 4822 requires that all shopping Web sites and firms that sell goods or services on Internet provide to their consumers information such as their firms' commercial name, open address, the details of the quality and quantity of the goods or services provided, prices of goods including all relevant taxes, duration of validity of the price, shipment charges, return conditions, and access to a complaint system, among other things.
With the reclassifications and expanded definition of long-distance agreements, consumers now have the right to return the goods and services that they purchase via Internet within seven days of the day of purchase and without any reason. According to this law, providers of services or goods are obliged to return the money received from online sales within ten days after the return of the sold goods.
VII. Security in E-Commerce
Since online customers do not commonly use digital certificates in Turkey, customers cannot easily verify the identities of the vendors. Entrepreneurs are still trying to develop an easy and secure access system for this purpose. Currently, online security is obtained through encryption provided by security protocols for submitted information. The most popular of these protocols are SSL (Secure 128) and SET. These systems use key algorithms to provide a secure communication for e-commerce.
SLL standard is used for secure communication of customers. Sellers register with an electronic Web site identity that is obtained from the approved institution. SLL provides security of the communication between customer and vendor, checks whether the vendor that is reached on the Internet is real or not, and encrypts the data transferred.
The security of communication between vendors and banks for the payment intermediation is provided by SET protocol. The payment information (credit card) taken from customer with SLL is sent to the bank with encrypted SET protocol by the seller. If customer's account is adequate, then the bank approves the shopping and sends provision information to the seller.
These security protocols used by e-commerce subjects are supposed to conform with the E-Signature Law mentioned above. Certification for online security is regulated by the Telecommunications Authority via a communiqué issued. However, since auditing of e-commerce is almost impossible, and consumers in Turkey are not well-informed on such protocols, the actual security is still dependent on the credibility of the firms who use and develop these protocols.
VIII. Protection of Personal Data
Collection, use, and verification of personal data in e-commerce has become a must in today's environment. Therefore, the concept of the protection of privacy raises new issues in the e-commerce environment.
The Turkish legal system provides rules for the protection of privacy under its Civil Code. The protection starts from the integrity of body and the privacy of residence, family life, and personal communications. At this time, the protective measures and penalties against violations of privacy are not specifically defined for personal data submitted online for purposes of e-commerce; thus, protection of personal information still constitutes a problem.
Although Turkey is a party to EU Council Agreement No. 108, titled "Protection of Individuals against Automatic Process of Personal Data," dated 1981, Turkey has not yet adopted a local legislation for this purpose. In 2006, Turkey's legislative body drafted a proposal to domestically adopt this EU law. This draft law is titled "Law for the Protection of Personal Data" and is expected to be enacted in 2008.
The draft law for the protection of personal data regulates the processing and storing of personal data, establishes a high council for the supervision of such activities, and designates a ground rule for open consent by the submitting party for the sharing of the information provided.
IX. Determining a Definition for E-Commerce
The development of e-commerce has changed the manner of making business, and distinguishing physical goods, online goods, and services from each other is getting harder day by day. Commercial transactions are not completely set onto physical bases anymore. Besides the difficulty of classifying goods in Internet-based transactions, classifying revenues that are earned from these transactions is no longer simple because present taxation rules do not recognize specific characteristics of digital transactions.
Since e-commerce is a new concept, there is no single definition for the term at this time, which is critical before moving on to taxation issues. According to some definitions, all transactions that are done via electronic instruments are accepted as e-commerce; however, others transactions and payments done only in open networks are considered to be e-commerce as well. Examples of such different definitions by various international organizations are noted below.
According to the definition of the World Trade Organization (WTO), e-commerce is performing production, advertisement, selling, and distribution of goods and services over telecommunication networks. However, for the Organization of Economic Cooperation and Development (OECD), e-commerce activities are those transactions that associations and individuals perform, that are related to trade, and that are grounded in transmission of digitized data, such as text, audio, or video, over open or closed networks. UN-CEFACT (United Nations Centre for Trade Facilitation and Electronic Business) defines e-commerce as the sharing of business information, structured or unstructured, in order to conduct business, management, and consumption activities, between producers, consumers, public bodies, and other organizations, over electronic instruments (e-mail, instant messages, and electronic bulletin boards), World Wide Web technology, smart cards, electronic funds transfer, and electronic data interchange. UNCITRAL defines e-commerce as exchange of every kind of data message in the scope of commercial activities.
According to definition of the European Commission in 1997, e-commerce is simply performing operating activities by electronic means. This activity is based on processing and transfer of text, sound, and video data by electronic means. Therefore, e-commerce includes digital payment of goods and services as well.
X. Classifications of E-Commerce Revenues
Revenues earned from electronic transactions are classified as royalties or commercial earnings according to tax applications of the OECD states and the United States (U.S.). Subject to those general tax practices of the OECD countries, including Turkey, royalties are the total sum of the money or benefits paid regularly to an author, an inventor, or a publisher in consideration of transferring their own rights.
The transactions that are considered "commercial earnings" are downloading and updating digital products, making additions to digital products, using digital products, downloading one-use software, storing data, submitting advertisements, and providing online consulting services, data delivery services, technical data services, sound, music and image broadcasts. The tax base revenue that is considered royalties is the income generated from the sale of downloaded software, the service and use of hidden technical services, and the sale of contents that are eligible to be published by Web site owners.
A. Commercial-Earnings Transactions
The following transactions are considered commercial earnings:
- Downloading digital products-The profit that is gained from downloading a digital product, such as software, music, video, or book, is accepted as commercial earning. Customers have the right to make a copy of the digital products they purchased.
- Update and attachment of digital products-Software updates and attachments realized via the Internet are classified as downloads of software.
- Using digital products-Income that arises from the temporary use of digital products is considered commercial earning. Temporary use means using a digital product for less time than its beneficial period without right to copy.
- Downloading single-use software-The profit that is earned from downloading single-use software is also considered commercial earning.
- Web site accommodate firms- Earn profits from allowing users to store and access data on the web through third party content and software.
- Storage of data-According to view that is accepted by OECD countries, profits that are earned from the storage of data are considered commercial earnings.
- Data technical assistance-Profits earned from online technical assistance are commercial earnings.
- Search results-Profits earned from search results over any online database are commercial earnings.
- Advertisement-Profits associated with transactions of advertising over Internet Web sites are commercial earnings.
- Online consulting services-Profit generated from providing services such as law, accounting, consulting over the Internet are considered commercial earnings.
- Data delivery services-Profits earned from data delivery services are commercial earnings.
- Web site membership-Web-site subscription systems are considered services to customers and are taxed as commercial earnings.
- Online accommodations-Earnings of online accommodation services are commercial earnings.
- Audio, music, and video broadcast-Profits generated from broadcast of audio, music, and video over the Internet are considered commercial earnings.
The following transactions are considered royalties:
- Downloading and operating-If any software is downloaded from the internet, and if any commercial earning is generated from selling or reproducing this product, then these profits are considered royalties.
- Use of secret technical information-Profits earned from serving and using secret technical information are considered royalties. The fees that are paid for transfers of this kind of information are not considered royalties unless they include use of information more than once.
- Use of patented content-Earnings that are generated from contents that are brought out by Web-site owners against a copyright fee are deemed royalties.
XI. Taxation of Online Content
In the present Turkish tax system, the first determination to make is what income should be taxed. This is called the "origin" or "source of income" rule of taxation. Description of earned income and determination of the origin is realized in accordance with income elements.
Under the framework of Article 7 of the OECD Model for taxation, a contracting state cannot tax the earnings of the other contracting state unless these earnings are derived through a business establishment located in that state. In other words, taxation of a foreign establishment in the state that it is established is related to having a business establishment only in that state. When there is no business establishment, income is taxed only by the resident state. According to Article 12(1) of the OECD Model, "royalties arising in a Contracting State and beneficially owned by a resident of the other Contracting State shall be taxable only in that other State." Therefore, the right of the taxation power is only given to the state of residence. However, the United Nations (UN) Model anticipated that shared connection and royalty is bonded to the authority of the residence state, and the origin state would continue to apply reduced taxation rates.
Turkey made a reservation for Article 12 of OECD Model and therefore reserved the right to tax royalties in the origin state. Thus, in practice and in Turkish tax agreements, origin states continue cutting taxes in the royalties. For this reason, the description of royalties and whether this description includes income from e-commerce has special importance in Turkey.
The concept of "royalties" is described as payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic, or scientific work, including cinematograph films, any patent, trademark, design or model, plan, secret formula or process, or for information concerning industrial, commercial, or scientific experience. Royalties and such payments that arise from patents and such assets are incomes that arise from leasing operations.
For digital products there is a classification problem in determining whether the payment that is paid for limited use of digital products is an income that is earned from the right to use or just use of the industrial, commercial, or scientific equipment. In these occasions, a customer buys the right to use software or another digital product for a shorter time than the actual use time of the product. The product is downloaded electronically or delivered in a material instrument, such as a CD or DVD. When the term of the license expires, the copies of the digital product are deleted or become useless (OECD Treaty Characterization Report, Annex 2, Category 5). Then, the next problem is whether the digital product is equipment, and if so, whether it is industrial, commercial, or scientific.
Because the term "equipment" is applied to material products, digital products cannot be thought of as equipment. The fact that digital products are obtained over a material instrument does not change the other fact that a transaction is made to buy the right to use digital content, not the right to use a material asset. The term "equipment" can be used for an asset that could be an instrumental item; in this electronic context, it is not used to imply a good such as a music or video CD or DVD. Digital products cannot be considered "industrial, commercial, or scientific" when they are provided for the use of individual consumers. When these products' characteristics and the users' purchasing purposes are taken into consideration, products such as games, music, or videos cannot be considered industrial, commercial, or scientific. Payments made for such transactions are not payments made for the use of or the right to use a product, because these concepts are not applied to payments made when buying goods for a short term of use. Buying a video game CD or DVD that is not going to be used after a period of time is an example for such intent of temporary use.
XII. Adopting Income Elements to E-Commerce in Turkish Tax Law
Turkish Revenue Code Article 7 and Value-Added Tax Code Article 12 designate the separation of income elements of "limited tax subjects" and income generated in or from Turkey. As noted in such regulations, the "limited tax subjects" (taxpayer) must have a physical location or a permanent representative in Turkey, and income must be generated by these establishments or by the representatives to become taxable in Turkey.
According to Value-Added Tax Code Article 24, commercial, agricultural, and other incomes and returns of limited corporate taxpayers are taxable in Turkey. Tax rates of these are 25 percent on fees, 20 percent on self-employment income, 20 percent on returns on immovable properties, 25 percent on copyright, privilege, invention, enterprise, trade name, trademark, and sales, transfer, and conveyance of other similar intangible rights.
Pursuant to agreements on avoidance of double taxation, the mentioned tax rates may be reduced (for instance 10% on intangible rights) or entirely ignored by the tax authority in Turkey.
Please note that the OECD does not differentiate between commercial income and self-employment income anymore, and the OECD qualifies them both as business income. Although, it is agreeable to think that most e-trade income should be considered the product of sales and services and, therefore, should be considered business income, Turkish tax authorities do not make the same conclusion, and there are different classifications applied for commercial earnings, royalties, and appreciation earnings.
A. Software-Digital Products
The differentiation in earnings brings the related issue of determining whether income is originated from Turkey. Qualification of commercial earnings leads to an examination of the business establishment; and qualification of royalties leads to the determination of the place of use of real assets, the type of rights transferred, the place of payment, or place of register according to measure of valuation in Turkey. In that last case, the origin of income generally leads to the conclusion that income is originated in Turkey.
1. Personal Use
According to Turkish tax laws, supply of software or digital products by downloading them via the Internet is considered "package programs" or other goods in trade transacted in traditional ways. In other words, that income is considered commercial earning. (Corporate Tax Law, art. 12/1; Income Tax Law, art. 37).
2. Commercial Use
There are two alternative in this case, either copyrights are rented or sold.
a. Renting and Sale in Owner of Work Capacity
The earnings generated from rent or sale of copyrights by their owners or their inheritors are considered professional service earnings. (Income Tax Law, art. 70/6 and 80/3). According to Income Tax Law Article 18, these kinds of earnings are exempted from income tax.
Within the framework of intellectual property laws, the owner of a copyrighted works is the one who generates the work. (Turkish Intellectual Property Law, art. 8/1). Thus, publishers, producers, and legal entities are not considered the owners of the copyrighted work (product). Additionally, since legal entities have no intellectual activity, they cannot create intellectual products under Turkish law. In fact, according to the modified clause 1/B(b) of the Intellectual Property Law, the owner of a copyrighted work is the individual who creates the work. Therefore, works created by an employee, officer, or vassal in the course of employment belong to the employee. However, because work is the subject of a service agreement, moral rights belong to the employee and the right of using financial rights belong to the employer, according to legal provisions.
b. Renting and Sale in Third-Person Capacity
According to Turkish tax laws, earnings generated from renting copyrights by persons and institutions other than authors are considered royalties (Income Tax Law, art. 70/6; Corporate Tax Law, art. 24). Earnings from the disposal of copyrights and patents by third persons other than the authors, inventors, and their legal heirs are considered appreciation earnings, and these are subject to various ratios of income tax based on the taxable amount and/or 25 percent corporate tax.
With respect to agreements on avoidance of double taxation to which Turkey is a party, renting copyrights on software and digital products for commercial purposes are subject to shared taxation as royalties according to (most commonly Article 12) these agreements. In other words, Turkey can tax payments that are made as the origin state; however, this rate is generally limited to 10 percent. There are two alternatives in the sale of the copyrights for commercial purposes.
c. Technical Data (Know-How)
Technical data (know-how) is regulated under the Article 70/5 of Income Tax Law as rights associated with data, based on experience obtained in the industry, commerce, and science areas. The revenues provided by know-how, if rented, are considered royalties and are subjected to advance corporate tax at the rate of 20 percent. According to avoidance tax agreements, revenue is transacted as a royalty, and the applicable advance tax rate in Turkey is at maximum 10 percent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.