The General Directorate of Domestic Trade ("General
Directorate") has recently issued a circular with
respect to the Law on Amendments to the Customs Law and Other Laws
and Statutory Decrees ("Law") dated
April 11, 2013 and numbered 6455. This circular was issued since
Article 80 of the Law has amended Article 397 of the Turkish
Commercial Code numbered 6102
Pursuant to the fourth clause of Article 397 of the TCC,
corporations which shall be subject to independent audit have been
determined under the Resolution of the Council of Ministers dated
January 23, 2013 ("Resolution").
However, there were no provisions under the TCC regarding the
corporations which do not fall under the scope of independent audit
set forth under the Resolution.
As a result, there was uncertainty regarding audit procedures of
corporations which were not subject to independent audit under the
TCC and the Resolution. In order to bring clarity to this matter;
Article 80 of the Law has amended Article 397 of the TCC.
GENERAL DIRECTORATE RIGHTFULLY ADVISES THE TRADE REGISTRIES TO
REFUSE THE APPLICATIONS FILED BY THESE CORPORATIONS TO REGISTER
THEIR INDEPENDENT AUDITORS, GIVEN THAT THERE IS NO APPLICABLE
LEGISLATION AT THE MOMENT
Pursuant to Article 80, a fifth and sixth paragraph have been
added to Article 397 of the TCC. The newly added fifth paragraph of
Article 397 provides that the corporations which do not fall under
the scope of the Resolution shall also be subject to independent
audit. Accordingly, the Council of Ministers shall publish a
regulation to determine the principles and procedures of such
audit, the qualifications of the auditors, the ethical principles,
duties and authorities of the auditors and appointment, dismissal
and resignation of the auditors. Given that such a regulation has
not yet been issued by the Council of Ministers, these corporations
remain not subject to an independent audit.
Having said that, the General Directorate has advised the trade
registries that corporations which do not fall under the scope of
the Resolution shall not take any resolution during their general
assembly meetings regarding election of an auditor until the
abovementioned regulation has been issued.
Therefore, in line with the advice of the General Directorate,
the trade registries shall refuse to register such decisions to
appoint an auditor which is taken during the general assembly
meetings of these corporations until the abovementioned regulation
has been issued. The reasoning behind this advice of the General
Directorate relies on the provisions under Article 27 of the Trade
Registry Regulation which provides that, the trade registry records
shall reflect the truth, be genuine and not contrary to public
order. In light of this provision, the General Directorate
rightfully advises the trade registries to refuse the applications
filed by these corporations to register their independent auditors,
given that there is no applicable legislation at the moment
regulating the principles and procedures of these auditors.
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.
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The New Turkish Commercial Code ("New Code") has been enacted and will enter into force in July 2012. One of the major changes brought by the New Code regards mandatory independent audits of corporations.
The law about payment of dividends has remained substantially unchanged for thirty years.
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