As a result of the impact of the changes made in New Commercial Code and Corporate Law on the tax law, the explanations given under General Communiqué on Collection Serial A Order No. 5 and General Communiqué on Collection Order No. 1 have been revised and additional explanations have been provided.
Liability of Limited Company Shareholders for Public Receivables
In accordance with Article 35 of Law on Collection Procedure of Public Receivables No. 6183, proceedings for the limited company shareholders are performed by reference to their capital shares.
Considering Article 595 of New Commercial Code No. 6102, it is stated in General Communiqué on Collection Serial No. 5 that the date of transfer agreement approved by the Notary Public shall be taken as a basis for the date of shareholder's share transfer and, if the general assembly rejects the transfer even though the shareholder's share is transferred with a transfer agreement approved by the Notary Public, the share of shareholder shall be deemed not to have been transferred and it is accepted that shareholding capacity of the shareholder shall be kept.
Accordingly, for a transfer of shareholder's share, when a shareholder for which legal proceedings are started within the scope of Article 35 is determined, the Articles of Association announced in the Turkey Trade Registry Gazette, amendments in the Articles of Association, the share book (in the cases where share transfer is not registered or announced) or transfer agreement approved by the Notary Public (in cases where the transfer is deemed to have been approved or not to have been approved) are taken into consideration and the dates included herein are considered.
Liability of Limited Company Legal Representatives for Public Receivables
According to Article 35 et seq. of Law No. 6183, executives and representatives are jointly and severally liable for all of the receivables.
In Law No. 6102, it is stated that the legal representative of limited liabilitycompany might be one or more shareholders or all shareholders or third parties that have the capacity of manager assigned by the articles of association. At this point, it should be noted that at least one of the shareholders has the right to manage and authority to represent in order to make the third parties manage and represent the company.
In this regards, the proceedings for the shareholders who have not the capacity of executive and representative are performed by reference to their capital shares in line with Article 35 of Law No. 6183. The proceedings related to the legal representatives determined according to Article 35 et seq. of Law No. 6183 are jointly and severally performed for all of the public receivables.
Liability of Joint Stock Company Shareholders for Public Receivables
According to Article 329 of Law No. 6102, because the liability of the shareholders who are not members of the Board of Directors is only limited with the capital that they undertake, they cannot assume any liability going beyond this limit.
The Liability of the Joint Stock Company Executives and Representatives for Public Receivables
In Article 365 of Law No. 6102, it has been regulated that the authority to represent and manage the joint stock company belongs to the Board of Directors on the condition that exceptional provisions are reserved.
As per Law No. 6102, joint stock company's Board of Directors shall consist of one or more persons assigned by the Articles of Association or chosen by the Board of Directors. In the event that the Board of Directors consists of only one person, this person shall represent the company.
So, within the context of Article 35 et seq. of Law No. 6183, the legal representatives are the members of the Board of Directors assigned by the Articles of Association or third parties assigned as manager by the Board of Directors provided that one of the members of the Board of Directors is present when the related third party is chosen. All the members of Board of Directors shall be accepted as legal representatives in cases where the authority of representation is not transferred to executive directors or third parties as managers. Legal proceedings related to public receivables shall not be initiated for other members of the Board of Directors in cases where the authority to represent the company is transferred to executive directors or third parties as managers.
Company's Articles of Association shall be taken as basis in this issue. If there is not an assignment of this kind in the company's Articles of Association, legal proceedings shall be initiated for all the members of Board of Directors due to the public receivables for which those members are jointly and severally responsible within the scope of Article 35 et seq. of Law No. 6183.
One-man companies are one of the most important amendments provided with Law No. 6102. Liability of the shareholder has importance in one-man companies in terms of tax law. Considering the fact that shareholders have different tax liabilities in one-man joint stock and limited liability companies, a special explanation arises as a requirement to ensure an accurate compliance.
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.