Article 35 of the Law on Collection of Public Receivables
numbered 6183 (the "CPRLaw") regulates the responsibility of company
representatives regarding the public receivables. Paragraph 5
states that the representative who is on duty when a public
receivable occurs and the representative who is on duty when the
payment of such public receivable becomes due, are jointly
responsible for the payment of such public receivable.
Paragraph 6 of article 35 states that the responsibility of company
representatives defined in the CPR Law (under paragraph 5 stated
above) cannot be revoked by the Tax Procedure Law. This article
will review the decision given by the Turkish Constitution Court on
19th of March 2015 (decision no 2014/144E-2015/29) which terminates
the provisions in paragraph 5 and 6 of the article 35on the grounds
that they are in contradiction with the Constitution of the
Republic of Turkey. ("Constitution")
4th Chamber of the Council of State
("Danıştay 4. Daire" in Turkish)
applied to the Constitution Court claiming that paragraph 5 and 6
of article 35 of the CPR Law violates article 21 of the
Constitution which was discussed during a dispute where a company
representative's car was seized because of public receivables
and the representative was claiming that such seizure should be
The Constitution Court accepted the application of 4th Chamber
of Council of State and ordered that paragraph 5 and 6 of the
article 35 of the CPR Law violates the Constitution. The court
stated that paragraph 5 violates the Constitution since it states
that even if a representative acts with due care regarding the
payment of public receivables during his/her duty period, he or she
cannot avoid the risk to be jointly held responsible for a public
receivable related with another period that he/she was not on duty
and basically has no possibility to interfere. Holding persons
jointly responsible for the actions or non-actions that they have
no possibility to interfere is not fair. Imposing such a liability
will harm the principles of the state of law and will hold
such people under an ambigious and non-secure position. Therefore,
it violates the Constitution.
The court stated that paragraph 6 was also violating the
Constitution since it regulates a certain issue which is also
regulated in another law, namely, Tax Procedural Law and it causes
confusion as to which law shall govern the matter.
Final Remarks & Opinion
The decision of the Constitution Court is actually abolishing a
very important liability of company representatives, which was
considered as a huge risk for persons appointed as representatives
of companies. In practice, we face a lot of cases where
representatives are claimed to be liable for huge amount of public
receivables related with the companies they were previously
representatives of. To avoid any misunderstanding, we would like to
mention that such responsibility was limited to receivables already
occurred but not became due when the company representative was on
duty. However, in any case, such responsibility is risky and in
most cases company representatives have no guarantee that such
public receivable will be paid by the company when it becomes due.
Therefore, we agree with the Constitution Court's decision. We
would also like to mention that the decision only limits the risk
but there are also some other provisions of the CPR Law that still
constitutes risk for company representatives regarding public
receivables. For instance; representatives are still responsible
for due public receivables when they are on duty. Therefore, in
case the company does not have any assets to pay the public
receivable, the company representative shall still be under the
risk of paying such receivable. In practice, there are many
representatives who are held responsible for public receivables of
Given all above, it is important to keep in mind that being a
company representative brings considerable obligations and
responsibilities one of which is the public receivables issue and
people should carefully think before accepting being a
representative of a company they are not familiar with.
1. Article 2 of the Constitution of the Republic of
Turkey; II. Characteristics of the
Republic ARTICLE 2.
The Republic of Turkey is a democratic, secular and
social state governed by the rule of law; bearing in mind the
concepts of public peace, national solidarity and justice;
respecting human rights; loyal to the nationalism of Atatürk,
and based on the fundamental tenets set forth in the
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