Stamp Tax (Duty) on Commercial Agreements: A General

Stamp Tax (Duty) on Commercial Agreements: A General Overview Within The Scope of

Turkish Legislation, Court Decisions, Revenue Administration Circular and Rulings

Asst. Dr. Erdem Ateşağaoğlu*

Abstract

In Turkish law, stamp tax is regulated under the Stamp Tax Law numbered 488 and dated July 1, 1964 (the “Stamp Tax Law”). Stamp tax is a kind of consumption tax levied on papers, which are prepared with intent to execute the transactions regarding transfer of goods, ser-vices and wealth appeared in the chain extending from production to consumption legally1. The legislative intent of the legislature is to levy a tax on several documents, which can be submitted to prove or indicate an issue. Pursuant to the specified law, stamp tax is imposed upon instru-ments rather than transactions. In this regard, many kinds of documents are classified by their legal status in order to be taxed at different tax rates. As opposed to other taxes, stamp tax applies to many tax payers, since relevant documents subject to taxation have a widespread practice. On the other hand, the regular and constant occurrence of the cases that are subject to stamp tax also makes tax examinations difficult. Therefore, certain control methods and sui generis provisions are regulated by law

* İstanbul University Faculty of Law, Fiscal Law Department. E- mail address: [email protected].

1 Muhiddin ALTUNTAŞ, Damga Vergisi Yorum, Açıklama ve Uygulaması, p.1. See, available at http://www.meridyendenetim.com/dosyalar/104_dosya.pdf (last visited 29.09.2012).

114 Erdem Ateşağaoğlu [Annales XLIV, N. 61, 113-146, 2012]

and general communiqués or discussed in Turkish court decisions, reve-nue administration circular and rulings in order to reduce tax losses.

Introduction

Despite the fact that the stamp tax has been created mainly for fiscal purposes, it has less contribution to tax revenue collected by govern-ment2. However, stamp tax indirectly allows proper transactions to be performed and documents to be issued. Nevertheless, the opinion can also be introduced that all transactions and documents subject to stamp tax needlessly increase the relevant workloads and corresponding forma-lities.3

In many respects, stamp tax practice reveals particular issues, sin-ce a wide range of legal documents specified by the Stamp Tax Law are subject to stamp tax in accordance with various legal provisions. For this reason, in terms of the range of documents considered, we restrict the field of study and concentrate only on commercial agreements. So, this article provides information and a detailed discussion on fundamental principles of stamp tax practice by benefiting from the interpretations made by courts and administration with respect to the provisions on Turkish stamp tax and their legal consequences. The organization of this article is as follows.

Section I: Documents Subject to Stamp Tax, Section II: Taxable Event; Section III: Tax Payer, Taxation Principles and Stamp Tax Rates; Section IV: Stamp Tax on More Than One Counterparts, Copies Marked as “Same as Original”, Agreements Concluded Before a Notary Public and Some Other Cost Related Matters; Section V: Significant Stamp Tax

2 In the fiscal year of 2010, the total stamp tax collection (TL 5.08.2,749 million) accounts for 2.4% of the total tax revenue (TL 210.560,388 million) raised in the same year. See, available at http://www.gep.gov.tr/Web/RUlusal.aspx?prmts=115 (last visited 23.08.2012).

3 Abdurrahman AKDOĞAN, Türk Vergi Sistemi ve Uygulaması, Gazi Kitapevi, 5th edition, Ankara, 2004, p. 449.

115Stamp Tax (Duty) On Commercıal Agreements: A General Overvıew ...

Exemptions; Section VI: Payment Procedures of Stamp Tax; Section VII: Consequences of Undeclared Stamp Tax and Section VIII: Conclusion.

I. Documents Subject to Stamp Tax

According to Article 1 of the Stamp Tax Law, documents listed in the Table 1 appended to the Law are subject to stamp tax on the basis of value specified herein. In this regard, some documents that are not shown under the Table 1, such as consent letter, purchase order form, power of attorney are not subject to stamp tax. Documents subject to stamp tax are defined as; written4 and signed (or marked in lieu of signature) papers issued for the purposes of proving or documenting any legal matter5. The 4 Certain agreements have to be made in official form as provided by law. Therefore,

the invalidity of the agreements may be in question, depending on such formal rules that are not actually fulfilled for relevant transactions. In such a case, the agreements shall not be subject to stamp tax. Decision of the Council of State, 7th Chamber ( E. 2007/5116, K. 2009/4267), dated 20.10.2009 states that; “Regarding the transfer of a real estate, for the transaction to take place, an official purchase agreement should be signed, which means both transferor and transferee sign the agreement in the presence of land registry office or notary. As a consequence, regarding the transfer of real estate has no conclusive force since it is simply signed between the parties…”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012). However, both Article 11/1 of the former Code of Obligation, Law No. 818 and Article 12/1 of the applicable New Code of Obligation No. 6098 which entered into force at 01.07.2012, states that; “validity of agreements does not depend on any form except as otherwise provided by law”. In this sense, the oral agreements concluded in place of written form merely provide the beneficial ownership, though nothing legally passes under these transfers. However, certain transactions such as transfers of land must be executed via formal way, so that stamp tax could only be avoided by abandoning such transactions. See David W. WILLIAMS, Geoffrey K. MORSE, David SALTER, Principles of Tax Law, 3rd edition, London, 1996, p. 448; K. W. RYAN, Stamp Duty: Settlements and Conveyances, The University of Queensland Law Journal, Vol. 4, 1961-1964, p. 290.

5 Decision of the Council of State, 7th Chamber ( E. 2008/6761, K. 2010/2274), dated 21.05.2010 states that; “In terms of the agreement, all statements for acting properly in accordance with the procedures and principles specified in law are repetition of identical matters regulated by legislation, so in all aspects such document written without commitment should not be subject to stamp tax”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012). Decision of the Council of State, 7th Chamber ( E. 1999/70, K. 2002/4120), dated 14.12.1999 states that; “…papers containing no provisions with regard to establishing, changing or removing a right are out of


documents prepared in magnetic environment or as electronic data and which may be presented to prove or indicate any issues are also subject to stamp tax6. It should be noted that if no formal or written requirements are needed for an agreement in accordance with the law, the agreement could be formed without written record and relevant transactions could also be carried out in line with the oral agreement. Therefore; if any type of transaction can be carried out by spoken words or by conduct, there will be no agreement and consequently no stamp tax7. In other words, if

being subject to stamp tax despite these are in the form of written agreement”; Decision of the Council of State, 7th Chamber ( E. 1997/3754, K. 1998/3307), dated 14.10.1998 states that; “The documents should have an evidential value for a certain matter to levy stamp tax on them even if they are in written form and signed by both parties”; Decision of the Council of State, 7th Chamber ( E. 1997/2574, K. 1998/2036), dated 26.05.1998 states that; “It is clear that the decision of tender committee for real estate, which was purchased via compulsory execution, is signed and legally created by the parties. Thereafter, the subsequent event regarding the termination of decision has not removed the existence of evidence effect of the relevant document, which is the main factor for levy stamp tax on it, even if the provisions of the decision have not executed due to the termination”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).

Historically, the beginning of stamp tax practice developed out of the same purposes mentioned above. The existence of the aforesaid tax liability originated from Roman times when it was decreed by Emperor Justinian in the middle of the 6th century that there must be certain inscriptions on legal forms, with a penalty for defacing any of them. Most historians agree that stamp tax, in its current form, originated in the Netherlands in 1624 as a result of a competition for a new form of tax. The winning scheme required that certain legal documents should be written on stamped paper. See, available at http://www.hmrc.gov.uk/so/manual.pdf, (last visited 08.08.2012). Stamp tax in Great Britain has come a long way from its seventeenth century origins as a simple fixed rate. Legislation to impose duties on vellum, parchment and paper was first introduced in England as a temporary measure in 1694 and, as might be expected, became a permanent impost. The duty was finally consolidated in the Stamp Act 1891. However; today it is a technical and exacting subject. See William Dm. CANNON, Fundamental Principles of Stamp Duty, University of New South Wales Law Journal, Vol. 19/1, 1996, p. 2; WILLIAMS, MORSE, SALTER, p. 447, Donald I. BAKER, The Impact of British Stamp Duty on Certain Transactions of American Corporations, Virginia Journal of International Law, Vol. IV, No. 2, 1964, p. 176, 177.

6 However, the agreements prepared in electronic form may be classified as papers subject to stamp tax providing that an electronic signature is attached to or logically associated with such electronic documents. See Ekrem IŞIK, Damga Vergisi Kanunu Açıklama ve Yorumu, Anadolu Ofset, İstanbul, 2011, p. 3.

7 WILLIAMS, MORSE, SALTER, p. 447; Ahmet KIRMAN, 488 Sayılı Damga Vergisi


a legal transaction can be completed without the execution of an instru-ment being required, no stamp duty will be attracted8. For instance, the sale of a chattel can be made entirely validly by delivering the chattel to the transferee9. However, agreements prepared in a written form can be used as a proof. The conclusive force of transactions between parties is directly related to whether or not the transactions are executed via writ-ten documents, as signified by judicial procedure law10.

Accordingly, the point that should be considered is about the taxation of conditional agreement. These agreements can be divided into two sub-categories classified in terms of their conditions named as suspensory and dissolving condition. Suspensory conditions embody a fact that it is not definite whether or not it will occur and for this reason, the agreements bearing these kinds of conditions come into force from the realization of the conditions, unless otherwise agreed (Article 170 of the Code of Obligation). Thus, all claims and property rights may be obtained concurrently with the realization of suspensory condition and hence no party has responsibility for performing an obligation under the agreement until suspensory condition is realized11. The claimants have only expected rights during “suspense period”, which elapses between contract date and the date of condition being occurred12. The agreements bearing a dissolving condition embody a specific condition which causes the termination of the said agreements, in case particular condition oc-curs. Clauses of these agreements will be abolished concurrently with the realization of conditions and such abolishment has no backward effects

Kanunu Şerhi, 2nd edition, Ankara, 1997, p. 22.8 RYAN, p. 276.9 WILLIAMS, MORSE, SALTER, p. 448.10 KIRMAN, p. 13, 14. 11 Hüseyin HATEMİ, Emre GÖKYAYLA, Borçlar Hukuku Genel Bölüm, Vedat

Kitapçılık, İstanbul, 2011, p. 349.12 Haluk N. NOMER, Beklenen Haklar Üzerindeki Tasarrufların Hukuki Sonuçları,

Beta Yayınevi, İstanbul, 2002, p. 85, 86; Lale SİRMEN, Türk Özel Hukukunda Şart, Banka ve Ticaret Hukuku Araştırma Enstitüsü, Ayyıldız Matbaası, Ankara, 1992, p. 144, 145; HATEMİ, GÖKYAYLA, p. 349; Hasan PULAŞLI, Şarta Bağlı İşlemler ve Hukuki Sonuçları, Dayınlarlı Yayınevi, Ankara, 1989, p. 145; Fikret EREN, Borçlar Hukuku Genel Hükümler, Beta Yayınevi, 9th edition, İstanbul, 2006, p.1128.


unless otherwise agreed (Article 173 of the Code of Obligation). Corre-spondingly, all claims and property rights may be obtained and even pe-riod of limitation is triggered concurrently with the execution of the said agreements13. In the light of given provisions, the agreements mentioned above may come up with different results in terms of stamp tax. First of all, the agreements bearing dissolving conditions are subject to stamp tax for the reason that these come into force no sooner than signature date. On the other hand, the agreements bearing suspensory condition do not fully come into force at the date of issue by virtue of the fact that inte-rested parties do not have the rights to claim for fulfillments belonging to adverse party, during the time period between the date of issue and the occurrence of the condition. Therefore, we are of the opinion that the agreements in question should not be subject to stamp tax, where it is not possible to consider these papers as a proof of any contractual right14. Nevertheless, if any of the rights are granted or obligations are imposed through the agreements bearing suspensory condition, it is un-questionable that such agreements could have the capacity of submission and creating legal result and accordingly may be subject to stamp tax15. Consequently, the content of articles set forth in agreements should be evaluated in order to reach a conclusion about whether there will be a tax accrual until suspensory conditions are realized.

In case transactions between related parties will be carried out by two documents (e.g., one for sale or lease of the building plot and one for building works), the basis of tax assessed for the documents will differ 13 HATEMİ, GÖKYAYLA, p. 350.14 This issue is indicated similarly under Nuri DEĞER, Şarta Bağlı Sözleşmeleri İçeren

Kağıdın Damga Vergisi Karşısındaki Durumu, Yaklaşım Journal, Vol. 208, April, 2010, p. 42.

15 Hande TORTOP BAYRAKTAR, Şarta Bağlı Sözleşmelerde Damga Vergisi Uygulaması, Yaklaşım Journal, Vol. 214, October, 2010, p. 165, 166. Decision of the Council of State, 7th Chamber ( E. 1984/3281, K. 1987/239), dated 10.02.1987 states that; “all agreements are made in the free and mutual will of parties. Hence, as it is seen that the agreement in question has not entered into force by virtue of the “approval”, which needs to be given by government, has not been obtained. It is not likely to talk about free will due to functionality of the agreement is conditional upon the will of state in addition to the will of tax payers. So, there is no formation for agreement and as a matter of fact no taxation by the reason of unapproved agreement”. See KIRMAN, p. 64, 65.


whether those documents can be shown to be genuinely independent of each other. In consideration of the instance above, if the two documents are so interlocked that they cannot be said to be genuinely capable of independent completion (i.e., in case default occurs on either document, the other is then not enforceable), stamp tax may be charged on the total consideration for the land and buildings. Alternatively, if the two agree-ments are shown to be genuinely independent of each other, stamp tax may be charged by reference to the consideration payable for the land and any building work on that land at the date of execution of the contracts16.

Various documents including agreements, undertakings, assign-ments, lease contracts, bail and surety bonds, letters of lien, bonds of arbitration, deeds of settlement, letters of cancellation and payrolls are subject to stamp tax17. Besides, according to Article 2 of the Stamp Tax

16 See Ann L. HUMPHREY, Philip FREEDMAN, Stamp Duty Land Tax: A Practical Guide for Lawyers, 2nd edition, Spiramus Press, London, 2007, p. 53.54; http://www.hmrc.gov.uk/so/manual.pdf, (last visited 08.08.2012). “The question ‘whether several documents can be treated as one instrument where together they evidence a transaction such that if it was contained in one document it would be dutiable’ was elaborately discussed by Philip J. in Hopkins v. C.S.D. In this view, the liability of any particular document was to be determined upon the face of document itself”. See RYAN, p. 277, 288.

17 Decision of the Council of State, 7th Chamber ( E. 1999/70, K. 2002/4120), dated 14.12.1999 and Decision of the Council of State, 7th Chamber ( E. 2001/818, K. 2002/1908), dated 16.05.2002 state that; “…the deed of assignment issued for execution of registered share transfer, which signifies the process on registration of assignment transaction within the company’s book of shares. Therefore, stamp tax should not be discussed for these instruments in consequence of the said documents are a kind of notification and have not the characteristics of agreement, undertaking or assignment”; Decision of the Council of State, 7th Chamber ( E. 1999/2795, K. 2000/2611), dated 04.10.2000 states that “…the list of imported goods and clauses, which state that import transactions should be conducted through the procedures and principles as provided by circular letter and other related regulations, are indicated in papers. Thus, the legal and actual circumstances regulated in the law, directives and circular letters in force are confirmed via such documents. All the above mentioned clauses underline the obligation with regard to acting according to the procedures and principles prescribed by law. So, the papers in dispute should be deemed as “statement” rather than “undertaking” and subject to fixed stamp tax”; Decision of the Council of State, 7th Chamber ( E. 1993/2999, K. 1993/5180), dated 29.11.1993 states that; “assignment of claims has been effective in case the declaration forms regarding assignment of claims were not denied by the plaintiff factoring company. In this regard, the said forms including the customer’s claims in favor of the factoring company are intended merely for assignment


Law, letters and annotations baring the nature of papers that are subject to tax or that replace the same, as well as those letters and annotations that concern the renovation, extension, amendment, transfer or cancella-tion of such papers are subject to stamp tax18.

II. Taxable Event

Stamp tax shall arise at the time when agreements are signed19, even if these documents are being terminated or cancelled. In such case, the said termination/cancellation shall occur within the shortest possible time or before the expiry of the term of the agreement20. Additionally, the

purposes. Therefore, the declaration forms should be taken into consideration as assignment document and cause stamp tax, which should be imposed on the transferred amount exceeding the assignment limit referred in the factoring agreement”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).

18 Decision of the Council of State, 7th Chamber ( E. 1993/5576, K. 1995/5516), dated 20.12.1995; “Stamp tax should not be imposed in case of loan usage has been maintained unless a new record or letter is provided by parties causing the taxable event in question”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).

19 Decision of the Council of State, 7th Chamber ( E. 2005/4229, K. 2006/3369), dated 13.11.2006 states that; “…the document consisting of written offer is defined as proposal form and the separate document consisting of written acceptance of the above mentioned offer is a kind of letter. The document consisting of both the offer and the acceptance in written form is deemed as agreement”; Decision of the Council of State, 7th Chamber ( E. 1997/2482, K. 1998/944), dated 11.03.1998 states that; “… In Turkish Legal Dictionary, agreement is defined as written instruments that contain undertakings and commitments that are given by both parties with respect to a certain issue and interlinks offers with acceptances. Undertakings and commitments set out herein are given by real person or legal entity to another real person, private or public entity to perform an action or deliver goods on its own behalf. The document in issue contains pecuniary and formal clauses related to payments, which should be made pursuant to the redemption plan specified herein. Thus, we come to the conclusion that the paper is considered as an agreement rather than a report because it provides offer and acceptance”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).

20 Decision of the Council of State, 7th Chamber ( E. 2006/5427, K. 2008/4557), dated 12.11.2008 states that; “…cancellation of the agreement due to contractual obligations that were not fulfilled by one party has no effect on taxable event that has already occurred with the signatures appended to the agreement by both parties”; Decision of the Council of State, 7th Chamber ( E. 1999/347, K. 2000/958), dated 04. 04.2000 and Decision of the


contingency principle applies with the consideration which can be ascer-tained on the assumption that a future event mentioned in the document was not to occur21. Because stamp tax is payable on whatever sum may be calculable at the date of the document as the maximum consideration that may arise.

As per Article 1 of the Stamp Tax Law, agreements drawn up outside of Turkey are, in principle, exempt from stamp tax. They may, however, be subject to stamp tax; (i) if they are submitted to a Turkish governmen-tal authority, or (ii) a party benefits from any of the provisions thereof22

Council of State, 7th Chamber ( E. 1999/1739, K. 2000/347), dated 07.02.200 state that; “Although all documents subject to stamp tax are required to have the qualification to verify a matter in conjunction with submission, taxation is not conditional upon submission and execution of documents or benefiting from a provision of papers. The criteria for taxable events is met when signatures of both parties are put on the relevant document”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 08.02.2012).

21 The aforesaid principle means that any basic or prima facie sum which may become payable as consideration on the happening or not happening of some future contingency is chargeable to duty. Therefore; the total consideration is not fixed at the time the document is executed, but a sum is stated to be payable on a contingency, then duty is chargeable on such sum. See, available at http://www.hmrc.gov.uk/so/manual.pdf, (last visited 08.08.2012); WILLIAMS, MORSE, SALTER, p. 449.

22 See Decision of the Council of State, 7th Chamber ( E. 1999/1046, K. 1999/4057), dated 07.12.1999. İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012). Decision of the Council of State, General Assembly of Tax Courts ( E. 2007/403, K. 2008/734), dated 21.11.2008 and Decision of the Board of Chambers of the Turkish Court of Accounts, No. 1087/2 and dated 10.04.2002 state that; “A document only points out the unilateral declaration of one of the parties when it bears a single signature and such phase deemed as preparatory stage of the agreements. Agreements are completed with the signature of other party after the document is submitted to him/her by the first undersigned. In this regard, the agreements is drawn up and signed by foreign company and sent to the plaintiff company. So, the date of execution of relevant agreement occurred in Turkey when the plaintiff signed the document”; Decision of the Council of State, 7th Chamber ( E. 1999/2761, K. 2000/958), dated 04.04.2000 and Decision of the Council of State, 7th Chamber ( E. 1999/1739, K. 2000/347), dated 07.02.200 state that; “...the Stamp Tax Law only emphasizes the taxable event for documents signed outside of Turkey or at foreign consulates and embassies in Turkey as ‘submission or benefiting from the provisions of these papers’. So, there is no additional requirement to levy stamp tax on the papers issued in Turkey”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).


within the Republic of Turkey. Thus, all agreements signed abroad are taken into consideration as if they are signed in Turkey and subjected to stamp tax by virtue of these can be used for proving or revealing any right and include transactions which will be made before the state offices via such papers23. Furthermore, provisions of such agreements are conside-red as being benefited in Turkey providing that certain rights are granted or certain obligations are imposed on the counterparty of agreements. On the other hand, the previous established practice of the Turkish tax administration and the precedents of the Council of State (Danıştay) have adopted a broader definition for the expression “benefit”24. Within this framework, the execution of the terms and conditions of an agree-ment (or another type of document) within Turkey is considered as “be-nefiting” from the document in question. In this regard, if one or more of the provisions of an agreement is/are performed or has/have an effect in the legal books, records or financial reports are deemed as “benefiting”25.23 Nuri DEĞER, En Son Şekliyle Damga Vergisi Uygulaması, Yaklaşım Yayıncılık, 2nd

edition, 2006, İstanbul, p. 56.24 Decision of the Council of State, 7th Chamber ( E. 1999/294, K. 2000/4088), dated

20.12.2000 states that; “Any paper/agreement, which will be subject to stamp tax, is an instrument granting rights to its parties or specifying the legal relationships causing debt, obligation and duties, or an instrument submitted as proof of a legal relationship. Benefiting from a provision of such papers/agreements means any right obtained and/or any debt incurred, obligation assumed and duty undertaken by one of the parties”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012). As can be seen in the Decision, a wider definition of “benefit” has adopted by Turkish High Court of Administration (“Danıstay”). Accordingly, it may be briefly stated that this expression is defined as the implementation of the terms and conditions of an agreement within Turkey.

25 In this context; the agreements submitted to display the presence of any right and prove it are issued for the benefit of the signatory, even sometimes may be leading a transaction for the benefit of third parties. In such cases, the “benefit” criterion is met even though these papers are issued abroad. See Halil YAVUZ, Damga Vergisi Kanunu’nda Hükmünden Yararlanma Kavramı, Journal of Tax Affairs, Vol. 281, February, 2012, p.145. The definition of the expression “benefiting from the terms of the agreement” is explained in the same vein under the document entitled “A General Tax Guide for Foreign Investors” as follows, “In practice, the benefit criterion is interpreted in a broad manner and if a document is exercised and the outcome is reflected in the legal books, the provisions of that document are deemed to be benefited from in Turkey. Likewise, the usage of this document to prove or support any right, obligation or action might be understood as being within the scope of “benefiting from the provisions of the agreement”. See “A General


III. Tax Payer, Taxation Principles and Stamp Tax Rates

1. Tax Payer

According to Article 3 of the Stamp Tax Law, parties of an agree-ment are liable for the payment of stamp tax, as a tax payer26. In case an agreement embodies more than one signature, stamp tax should be paid on an equal basis by each signatory in practice or under the agreed shares specified in the document. However, signatories shall be jointly and seve-rally liable for the unpaid taxes and tax penalties related to papers signed by more than one party.

Stamp tax obligation arisen from papers, which issued by reason of transactions between governmental authorities and real or legal persons, is only imposed on that real persons or legal entities27. Stamp tax derived

Tax Guide for Foreign Investors”, PricewaterhouseCoopers, December 2004, p. 8-9, available at http://www.pwc.com/en_TR/tr/assets/ins-sol/publ/generaltaxguide.pdf (last visited 14.06.2012). Decision of the Council of State, 11th Chamber ( E. 1980/728, K. 1980/4120), dated 18.01.1980 states that; “The documents are not entered in the company’s books that are kept at its registered office in Turkey even if service derived from these documents is provided in Turkey. So, the claims asserted by the defendant tax office and addressed to the plaintiff are contrary to the articles 1 and 3 of the Stamp Tax Law owing to the fact that there is no tax audit to find out where the related documents are being kept in order to identify whether the “benefiting” criteria is met or not”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 04.08.2012).

26 Decision of the Council of State, 7th Chamber ( E. 2001/1850, K. 2005/566), dated 04.04.2005 states that; “…tax payer of stamp tax cannot be changed by the agreement because of the duty arising from the letter of guarantee written by bank”; Decision of the Council of State, 7th Chamber ( E. 2004/3625, K. 2005/799, dated 27.04.2005 states that, “…the joint guarantor is also a signatory of the share purchase agreement and severally liable for the unpaid stamp tax and the tax penalty arisen from the counterpart of the agreement”; İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012). On the other hand, it should be noted that the parties of commercial agreements are jointly liable for the payment of any stamp tax and the related penalties (Article 24/2 of the Stamp Tax Law).

27 Decision of the Council of State, 7th Chamber ( E.2006/1006, K. 2007/5030), dated 28.11.2007 states that; “…total stamp tax amount arising from the tender decision should be paid by the person who got the tender, because the tender authority is within the structure


from agreements drawn up abroad or in foreign legations and consulates in Turkey should be paid by the parties who submit these agreements to official authorities, transfer and endorse them28 or benefit from the provisions of them anyway in Turkey29. From this point of view, the main purpose of taxation based on foregoing criteria, which pays particular attention to ensure equal treatment between papers signed in Turkey and the others having the same nature even if these are signed abroad30.

2. Taxation Principles

In principle, the monetary value clearly stated on the face of a do-cument is considered as tax base and it should be subject to ad valorem tax31. In case of the parties attempt to avoid stamp tax by referring to ano-

of mentioned Ministry as a governmental authority”; Decision of the Council of State, 9th Chamber ( E. 1996/687, K. 1996/1762), dated 06.06.1996 states that; “Even though governmental authorities have tax obligations, such taxes should be levied from entities that are contracting parties together with governmental authorities”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012) .

28 For a quick comprehension, it might be good to make an examine the “bill of lading” although it is not qualified as an agreement. Yet, this document is prepared by carriers and given by the sellers to the consignees for seaborne goods purchased from a foreign country and delivered in Turkish ports. In the context of the importation of such goods, the aforesaid bill of lading is not subject to taxation due to being signed abroad. Nevertheless, stamp tax will arise and a payment must be made in case the bill of lading is transferred or endorsed in Turkey. See YAVUZ, p.144, 145.

29 A similar practice laid down by current Law (Stamp Act 1891) in United Kingdom. It is stated by the law that stamp tax is charged on documents executed in the United Kingdom whatever they relate to, and on documents executed abroad which relate to any property situated, or any matter or thing done or to be done in United Kingdom. See WILLIAMS, MORSE, SALTER, p. 451.

30 Erhan COŞKUN, Fatih KAYA, Damga Vergisinde Üst Sınır Sorunu ve Vergilendirmede Belirlilik İlkesi, Journal of Tax Affairs, Vol. 272, May, 2011, p. 106.

31 The most common ad valorem tax in question is levied on the property transfers. The transfer through sale includes every instrument, whereby any kind of personal and intellectual properties (things in action and things in possession) such as shares, marketable securities, lands, goods, wares or merchandises, copyrights, patents, the benefit of pending contracts or fixtures are transferred to or vested in any person. In this connection, it must be noted that stamp tax derived from a transfer is to be calculated on the greater value of the property and the existing tax rate. BAKER, p. 177, 178; RYAN,


ther document, then tax inspectors will take into account such numbers specified in the document that is referred to32. It is likely that any vague reference to other documents should not be included in the scope of a tax audit, as the amount is not clear and determinable. Therefore, stamp tax is only applied to the calculable value indicated in the agreement in-cluding its annexes and referred documents. In this regard, the period of agreements is critically important for the detection of value33. Provisions set forth in commercial agreements bearing annual/monthly payments,

p. 287; Peter GREEN, Stamp Duty Intellectual Property Issues, University of New South Wales Law Journal, Vol. 19/1, 1996, p. 92; WILLIAMS, MORSE, SALTER, p. 452, 453, 454. In this regard, transfer agreements on asset, share and so forth are subject to 9.48 ‰ stamp tax on the basis of contract value indicated in such documents. Apart from these agreements, all types of commercial agreements listed in Table 1 appended to the Stamp Tax Law are charged according to the specified monetary value. Decision of the Council of State, 7th Chamber ( E. 1996/472, K. 1996/2308), dated 19.06.1996 states that; “In the present case, the document issued under the name of “Terms and Conditions of Dealership” is regarded as agreement and so it should be subject to stamp tax. However, the tax calculation related to the aforementioned agreement that was made according to a specific rate rather than fixed amount is contrary to the law on the grounds that there is no specified price and value while the quantity of cements has been agreed upon by the parties”, Decision of the Council of State, 7th Chamber ( E. 1997/2496, K. 1998/669), dated 25.02.1998 states that; “Value added tax amount calculated in accordance with the aforementioned law and paid by the supplier to building contractor does not increase the contract price. According to the provisions of the Stamp Tax Law, Law No. 488, the prices for construction services stated in agreements constitute the tax base of both stamp tax and value added tax”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).

32 Decision of the Council of State, 7th Chamber ( E. 2006/2139, K. 2009/1767), dated 01.04.2009 states that; “Memorandum between the parties of the master agreement indicates the amount of gas supply and refers to article 5 of the agreement which contains the unit price. So, the memorandum signed in connection with the master agreement contains a calculable monetary value and subject to ad valorem tax…” İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).

33 For instance; if a sales target is set for the year 2012 within the scope of the dealership agreement signed between the Oil Company and the dealer and also the premium payment on turnover to be made is determined (provided that such target will be met), it should be admitted that the agreement does not contain any value. Because, the dealer shall not become entitled to obtain the premium payment on the contract date. Therefore, there will be no stamp tax accrual. See Ender BOZKIR, Damga Vergisi Açısından Sözleşmenin Düzenlendiği Anda Belli Para Tutarının Tespitinin Önemi, Journal of Tax Affairs, Vol. 281, February, 2012, p. 92, 93.


cost per unit for goods or service with a minimum purchase commitment for every month/year34 or other statements should be taken into account during the calculation of contractual value35. Briefly; any agreement which indicates a sum of money or provides the calculation to determine the amount through multiplication and addition of some units is treated as document containing monetary value36.

Furthermore, as per the Article 14 of the Stamp Tax Law, in the event that parties change the value of the agreement, only the increased amount will be subject to stamp tax37. Yet, if any commercial agreement

34 Decision of the Council of State, 7th Chamber ( E. 1993/3135, K. 1995/4978), dated 04.12.1995 states that; “Even though the only specified point within the natural gas sales agreement between BOTAS (‘petroleum pipeline corporation’) and the company is the annual quantity of gas which will be consumed, it is possible to calculate a certain monetary value by multiplying that quantity by the annual tariff of BOTAS to determine the tax base. Therefore, the agreement should be subject to ad valorem stamp tax in view of it contains a certain monetary value”, Danıştay Bilgi Bankası, available at http://www.danistay.gov.tr (last visited 17.10.2012); Decision of the Council of State, 7th Chamber ( E. 2000/1000, K. 2002/739), dated 20.02.2001 states that; “...the catering agreement contains a monetary value providing that the number and unit price of food can be detected from the provisions of the agreement”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).

35 Decision of the Council of State, 7th Chamber ( E. 1998/2262, K. 1999/1793), dated 27.04.1999 states that; “…the letters of request sent to the plaintiff company should not be subject to ad valorem stamp tax for the reason that transaction value is incalculable due to the quantity of commodities for sale cannot be determined precisely by these documents, which are also not deemed as undertaking or agreement”; Decision of the Council of State, 7th Chamber ( E. 1997/4141, K. 1999/891, dated 03.03.1999 states that; “…value of the agreement is equal to the increase in the amount of transferee’s capital, which will be arising from company transfer. Such amount and number of new shares to be issued in proportion to that amount will only be determined by the expert report. Within this framework, the agreement regarding the transfer of the company cannot be subject to ad valorem stamp tax”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 15.10.2012).

36 BOZKIR, p. 90. Decision of the Council of State, 7th Chamber ( E. 1985/2835, K. 1986/657), dated 04.03.1986 states that; “…specifying the monetary value in an agreement or having the opportunity to calculate a monetary value through multiplication and addition of some units existing therein means that the said paper contains a definite monetary value”, Danıştay Bilgi Bankası, available at http://www.danistay.gov.tr (last visited 15.10.2102).

37 Decision of the Council of State, 7th Chamber ( E. 1999/1064, K. 19999/4059), dated


is transferred to a third party, undersigned parties will be under an obli-gation to pay one quarter of the stamp tax derived from the agreement in question38. Apart from this legal arrangement, in case contract time will be extended via new signatures of parties, displaying the explicit declara-tion of intent of both parties, the stamp tax should be calculated accor-ding to the value and extended period indicated in the relevant paper.

If several transactions are interconnected or originate from a single transaction, the stamp tax will arise out of the amount that requires the collection of higher amount39 (Article 6 of the Stamp Tax Law). Yet, pur-

08.12.1999 states that; “…stamp tax should be collected on the additional amount arising from the change in the supply agreement following the realized increase in viewing cost with regard to the process of public procurement”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).

38 The ruling issued by the Ministry of Finance, dated 17.05.2007 and numbered B.07.1.GİB.04.99.16.01 states that; “In case agreements containing a monetary value are transferred to a third party, basis of calculation for stamp tax payable will be associated to the tax amount which was paid previously. Thus, the agreement subject to transfer drawn up in foreign currency will raise stamp duty, which is calculated as one quarter of the tax paid previously by taking into account the spot exchange rate at the time that the agreement in question was issued “, available at http://www.bmvdb.gov.tr/ozelgeler/2007/damga/8440.htm (last visited 04.07.2012).

39 That rule is described under “A General Tax Guide for Foreign Investors”, p. 8, as follows;” If several transactions are indicated in the same document, each of these shall separately be subject to stamp tax. However, if the transactions and contracts stated in the document are related and of the same origin, the stamp tax shall be applied on the transaction with the highest value quoted therein” and under WILLIAMS, MORSE, SALTER, p. 448, 449; “If one instrument contains (or relates to) several distinct matters, it is to be stamped as if it were a separate instrument in respect of each of the matters. Nevertheless, it has been established by case law that ‘all that is required is that the instrument should be stamped for its leading and principal object, and that this stamp covers everything accessory to this object’ (Limmer Asphalt Paving Co. v. IRC). For example, the stamp on a lease covers an option to purchase the reversion, but it does not cover an option to purchase other property”. Decision of the Council of State, 9th Chamber ( E. 1989/1970, K. 1991/153, dated 23.01.1991 states that; “ if an agreement contains both rental and pledge transactions on properties, stamp tax should be calculated over the maximum amount rather than each amount stipulated for separate transactions”; Decision of the Council of State, 7th Chamber ( E. 1998/2944, K. 1999/1392), dated 08.04.1999 and Decision of the Council of State, 7th Chamber ( E. 1998/1346, K. 1999/1140), dated 17.03.1999 state that, “… in case transactions are indicated in separate documents, each one of the papers shall severally be subject to stamp tax even if these are interconnected or originated from a single transaction”;


suant to Article 14/1 of the Stamp Tax Law, it should not be forgotten that the amount of stamp tax per document cannot exceed TL 1.487.397,7040 in the year 2013, which is a maximum amount of stamp tax that can be le-vied upon each document41 and determined annually in accordance with the revaluation rates announced by the Ministry of Finance for every year. In the meantime, in compliance with the regulations of the General Communiqué of Stamp Tax Law No. 35, if monetary values specified in agreements are foreign exchange, then these values should be converted

Decision of the Council of State, 9th Chamber ( E. 1989/1988, K. 1990/2616, dated 15.06.1990 states that; “it is understood that borrowing and undertaking transactions regarding the corporate bonds are interconnected or originated from a single transaction and thereof, subject to taxation according to Article 6/2 of Stamp Tax Law No. 488”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012). The ruling issued by the Ministry of Finance, dated 23.05.2008 and numbered B.07.1.GİB.04.99.16.01/2-Muk.285 states that; “...the amount of the penal clause will be applicable to the event of failure to fulfill the contract obligations. In this case, the highest amount among pecuniary obligation and penal clause shall be subject to stamp tax”, available at http://bmvdb.gov.tr/ozelgeler/2008/damga/15761.htm (last visited 13.04.2012)

40 The maximum amount for stamp tax per document is determined by the Communiqué on the Stamp Tax Law (Serial No.56), as published in the Official Gazette dated January 1, 2013.

41 The General Communiqué on the Stamp Tax Law (Serial No. 35) cites the following explanation; “the maximum amount is applicable for each counterpart since such papers have the same clauses and effect of the original and each of them may independently and simultaneously be submitted to different authorities”. See COŞKUN, KAYA, p. 109, 110. On the contrary, Decision of the Council of State, 7th Chamber ( E. 2004/3625, K. 2005/799), dated 27.04.2005 and Decision of the Council of State, 7th Chamber ( E. 1999/2090, K. 2000/562, dated 22.02.2000 similarly state that; “…the term ‘paper’ is different from the term ‘counterpart’. All counterparts, which each of them drawn up and signed to prove and reveal the same case with the original paper, jointly signifies one paper. When considering Article 5 in conjunction with Article 14 of Stamp Tax Law; the conclusion is that even though every counterpart shall be subject to taxation apart from each other, total stamp tax amount calculated for all counterparts cannot exceed the maximum payable tax amount determined in accordance with the article 14”; İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012). The opinion opposed to the general communiqué regulation, supporting the above judicial decisions, was similarly issued under Yılmaz ÖZBALCI, Damga Vergisi Kanunu Yorum ve Açıklamaları, Oluş Yayıncılık, Ankara, 2010, p. 185; Derviş ALTINOK, Damga Vergisinde İşlem, Kağıt ve Nüsha Kavramları ile ÜSt Sınır Sorunu, Journal of Tax World, Vol. 338, October, 2009, p. 73.


into TL at the selling exchange rate of the Central Bank of the Republic of Turkey on the contract date.

3. Stamp Tax Rates

Stamp tax may be imposed (i) as a percentage of the monetary value indicated in the document at rates ranging from 1.89‰ to 9.48‰42 or (ii) if no monetary value is indicated therein43, as a fixed insignificant amount (TL 39,65 for arbitration and settlement agreements bearing no monetary value and TL 222,40 for contingent rate agreements signed between tourism establishments and travel agents even if they contain a monetary value). So, stamp tax is calculated according to the type of documents that are differently dependent on the basis of percentage or fixed rate indicated by Appendix I (the Stamp Tax Rates Tariff44) of the Stamp Tax Law.

42 Stamp tax rates have been increased from 8.25 ‰ to 9.48 ‰ via the decision dated December 24, 2012 of the Council of Ministers. Rates and amounts applicable to different type of documents as of January 1, 2013 have been determined by the General Communiqué on the Stamp Tax Law (Serial No.56) published in the Official Gazette dated January 1, 2013.

43 If no monetary value is stated on commercial agreements, then stamp tax amount can only be imposed on a fixed rate. Nevertheless, some agreements are required to embody a value by their nature such as provision laid down in Article 11 of the Stamp Tax Law, which provides; “...it is an obligation to specify a value on loan agreements as well as all kinds of credit transactions and related documents with respect to the transfer, renewal or amendment of such agreements. If no value is stated thereon, the stamp duty and tax penalty shall be calculated on the basis of the current account balance as of the audit date. The creditor, the borrower, the assignor and the assignee shall be jointly liable for the payment of the tax levy and penalty”. See Transaction Taxes on Banking & Capital Markets, PricewaterhouseCoopers, December 2003, p. 9; available at http://www.pwc.com/en_TR/tr/assets/ins-sol/publ/transactiontaxes.pdf (last visited 02.11.2012).

44 The application of the Tariff is a part of the general structure related to the Stamp Tax Law. It is greatly complicated since the tax is levied at a variety of different rates against different categories of documents. Some of these are at a fixed rate, while others are proportional values applied to the contract value. A fixed stamp tax does not become varied according to the contents of same kind of documents, so it is often named as sweeping-up duty. However; ad valorem tax varies according to the value of documents subject to taxation. See, available at http://www.hmrc.gov.uk/so/manual.pdf (last visited 08.08.2012); BAKER, p. 177; WILLIAMS, MORSE, SALTER, p. 448.


Pursuant to the Tariff; all types of commercial agreements, under-takings, assignments and surety, guarantee and pledge bonds, arbitration and compromise agreements bearing monetary are subject to stamp tax at the rate of 9.48 ‰45. Lease contracts (the total lease amount conside-red as monetary value should be calculated taking account of the lease duration), termination agreements and sale agreements for second hand car are subject to stamp tax of 1.89 ‰. However; the intended transac-tions to be executed that are disguised in documents should be taken into consideration in order to reveal the legal nature of papers, even if formal requirements have not been designated by law46. Besides, if various trans-actions are stated in the same agreement, each of these should separately be subject to stamp tax. Therefore, if the contents of commercial agree-

45 Decision of the Council of State, 7th Chamber ( E. 1998/2346, K. 1998/4594), dated 17.12.1998 states that; “The cement request form should not be subject to ad valorem stamp tax since the document cannot be regarded as an agreement in the absence of tax payer’s signature, while it represents the will of the retailer”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).

46 The name of the agreement given by parties will not prevent the tax administration or court from going behind the transaction to determine its true nature. In this regard, the tax office or court should look for the real purpose of the transaction instead of forming a judgment upon the agreement adopted by the parties for the purpose of carrying out the transaction. So, it can be briefly stated that stamp tax is charged in accordance with the purpose of an instrument, not its mere form. WILLIAMS, MORSE, SALTER, p. 448, CANNON, p. 4 (See Mask v Commissioner of Stamp Duties (1920) 20 SR (NSW) 339 at 345). Decision of the Council of State, 7th Chamber ( E. 1998/574, K. 1998/4374), dated 08.12.1998 states that; “The bank gives a document to its customers under the name of “proposal form” and requests from them to fill out and sign the said document for forward transactions, which is executed without any written agreement bearing the signature of both parties and a written response of acceptance or denial given by the bank. Under these conditions, the agreement is not subject to stamp tax due to the fact that an oral agreement or implied acceptance is based on starting a forward transaction. On the other hand, the document named as “proposal form” is regarded as undertaking since it embodies mutual commitments and heavy penalties for customers who did not fulfilled their commitments. Consequently, it is quite obvious that the nature of the document in question is actually same as an undertaking even if the paper named differently, therefore it should be subject to ad valorem stamp tax”. See also Decision of the Council of State, 7th Chamber ( E. 2005/4229, K. 2006/3369), dated 13.11.2000. İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).


ments include more than one legal transaction, stamp tax shall arise and the above rates shall apply in respect of each transaction47.

IV. Stamp Tax on More Than One Counterpart, Copies Marked as “Same as Original”, Agreements Concluded Before a Notary Public and Some Other Cost Related Matters

The appearance of a commercial agreement subject to stamp tax is a matter to be considered, whether it is issued in the form of an original copy, notarized copy, copy certified by an attorney or photocopy, which plays an important role to determine the stamp tax amount and/or nota-ry costs arising from such documents.

47 Such basic principle provides that if several transaction are indicated in the same paper (or other material), each of these shall separately be subject to taxation. WILLIAMS, MORSE, SALTER, p. 448. For instance, if agreements titled “lease agreement” also include provisions related to separate co-guarantor agreement, two different stamp tax amounts will be calculated in accordance with the content. Decision of the Council of State, 7th Chamber ( E. 2005/874, K. 2006/2875), dated 03.10.2006 states that; “In addition to stamp tax derived from the lease transaction, it is a requirement to calculate another stamp tax on the personal surety included in the lease agreement, which was given by the third party in consideration of rental charges and in favor of the rent payer. Therefore, both the personal surety and lease transaction should separately have been subject to stamp tax...”; Decision of the Council of State, 7th Chamber ( E. 2002/2760, K. 2005/2751), dated 16.11.2005 states that; “…pledge certificates are not entirely linked with the primary transaction causing the principal debt. Under these circumstances, the pledge transaction regarding loan receivables should be subject to stamp tax apart from the loan agreement, since the pledge rules added to the agreement one day after the date of first signatures”; Decision of the Council of State, 7th Chamber ( E. 1998/1221, K. 1999/601), dated 17.02.1999 states that; “...even though the parties, dates of issue and amounts of the share transfer agreement and share repurchase agreement are the same, it is clearly understood that the latter agreement (“share repurchase agreement”) was not mentioned in the former agreement (“share transfer agreement”) and both transactions were originated from several papers and agreements rather than they were interconnected or originated from a single transaction. For this reason, each agreement is not in the position of complementary of the other agreement and separately subject to stamp tax “, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr ( last visited 19.02.2012).


As stated before, agreements that are written and signed or issued by some signs instead of signature and submitted for evidencing or revealing a certain matter are defined as paper and subject to stamp tax. Article 5 of the Stamp Tax Law provides that, the above mentioned agreements may be signed in more than one “counterparts”48 and in such a case each of the papers shall separately be subject to stamp tax at the same effective rate49.

In our opinion, it should be also taken into consideration as an al-ternative for parties to sign a single original of the agreement before a notary public. Nevertheless, if the parties wish to conclude an agreement before a notary public, they shall pay the stamp tax to the notary public. In this case, the notary public concludes the agreement in one original copy and a certified copy. Thus, one of the parties retains the original copy and certified copy issued by the notary public is also delivered to the other party of the agreement. It could be beneficial to add a part 48 The General Communiqué on the Stamp Tax Law (Serial No.35) defines “Counterpart”

as papers bearing the same conditions and functions as the original one. Main characteristic of counterparts is that the parties cosign each counterpart of a document with their original signatures. See Decision of the Council of State, 7th Chamber ( E. 2006/9, K. 2009/4592), dated 05.11.2009 states that; “the term counterpart described as papers having the same function and force with the original since they also embody the signatures or suchlike marks of the parties”; Decision of the Council of State, 7th Chamber ( E. 1984/3147, K. 1986/487), dated 20.02.1987 states that; “The reason of taxing each counterpart severally is that both may be submitted independently to prove and reveal any particular matter just as in the case of lease agreements which are kept by both lessee and leaser”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012) .

49 See Decision of the Council of State, 7th Chamber ( E. 1999/2090, K. 2000/562), dated 22.02.2000. İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012). Additionally, Decision of the Council of State, 7th Chamber ( E. 1998/923, K. 1999/4485), dated 30.12.1999 is as below “It is stated in the Article 9 of the audit and approval agreement that the said agreement was signed and shall be executed in one original copy and the other copy of the original agreement will be certified by a certified accountant, therefore it may be submitted to the client. This issue is also emphasized in the General Communiqué on Public Accountant, Certified Public Accountant and Sworn-in Certified Public Accountant Law (Serial No.11) that the agreements with regards to approval are required to be signed in two counterparts and each of them should be given up to related parties. Under these circumstances, stamp tax should only be imposed on the original copy of the audit and approval agreement”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).


with regard to the certification of signatures, which appears at the end of the agreement, thus the certified copies of the agreement may have a stronger probative force. Some annotations are put on the photocopies of the original agreements in the form of particular statements such as; “exact copy of the original”, “same as original” or “certified copy of the agreement”. On the contrary, certified copies do not bear the original signatures of the parties, which is the indispensable element for original copies of agreements.

In terms of taxation, stamp tax amount that is payable for the origi-nal copy of commercial agreements shall be calculated on the basis of the value of the single original copy kept by one of the parties, even though certified copies of the original agreements are subject to fixed stamp tax rather than specific rate. Pursuant to the Tariff of Notary Fee included in the Appendix II of the Charges Law No. 492, the tax rate for the notary fee to be calculated is 1,13 per thousand, which is applied upon the value of agreement for each signature (total amount imposed for all signatures cannot exceed TL 25.874,40 ). Additionally, other notary costs consi-sting of various items such as copy fee and notary fee shall be paid for each copy which has been certified by notaries. The copies of the com-mercial agreement to be submitted to governmental authorities are also subject to a fixed stamp tax of TL 0,6550.

No tax or costs will arise if ever attorneys51 of stamp tax payers cer-tify the copy of an original agreement in accordance with the Article 56 of the Attorneys Law No. 1136. Yet, tax offices may demand additional stamp tax for these kinds of certified copies even though such demands do not have any legal ground52. Nevertheless, it is quite clear that tax of-fices are under a burden to prove the aforementioned demands.50 As per the Article IV-3 of the Table 1 appended to the Stamp Tax Law.51 However, the original agreement is likely to be retained by the attorney in order to put

the statement “as original” into the copy. 52 Decision of the Council of State, 7th Chamber ( E. 1999/923, K. 1999/4485), dated

30.12.1999 states that; “...the agreement is drawn up as one original copy which was given to a certified accountant, and an another copy certified by this accountant is given to the employer. In this regard, it is unlawful to claim an additional stamp tax for the document subject to certification since the document in question does not bare the original signatures of


Finally, here is a point that photocopies of agreements (including notarized copies) are not deemed as original copies and have a weaker probative effect; they are not accepted as evidence and not subject to stamp tax.

V. Significant Stamp Tax Exemptions

The stamp tax exemptions on various documents referred in the Article IV of the Table 2 appended to the Stamp Tax Law and some other legislations, which can also be applied for commercial agreements. The notable ones among them are summarized as the following paragraphs:

1. According to the Article IV-16, the documents executed for the establishment, extension of duration or capital increase of joint-stock companies or limited liability companies and investment funds are ex-empted from stamp tax.

2. According to the Article IV-17, the documents issued in connec-tion with merger, transfer, spin-off, changing kind53 transactions perfor-med within the scope of the Corporate Tax Law No. 5520, are exempted from stamp tax.

the parties...”, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 15.09.2012) .

53 Within the scope of Article 19 of the Corporate Tax Law, the two basic requirements for agreements on changing kind, which have the same characteristics of transfer agreements executed in accordance with the Corporate Tax Law, can be stated as follows: (i) companies in question must be established in Turkey with a legal or business headquarters and (ii) the balance sheet values of the companies changing type on the date of changing transactions to be accomplished should be acquired by the new type of the company as a whole and are included in the new balance sheet. For instance, the agreements on getting transformed into a joint stock company are exempt from stamp tax in accordance with the Article IV-17 of the Table 2 appended to the Stamp Tax Law, providing that the process regarding changing kind of the relevant company has been completed under the above mentioned requirements. See, the Ruling issued by the Ministry of Finance, numbered B.07.1.GİB.4.54.15.01/KV, available at http://www.sakaryavdb.gov.tr/muktezalar/4.doc (last visited 06.09.2012); the ruling issued by the Ministry of Finance, numbered B.07.1.GİB.4.06.17.02/DMG, available at http://www. avdb.gov.tr/y/muktezalar (last visited 15.06.2012).


3. According to the Article IV-19, option and futures contracts (“agreements”), which bear the right/liability to buy, sell or change money, capital market instruments, goods, precious metals and foreign exchanges on the basis of predetermined terms over stated price, amount and quality among the banks or where the banks are parties of relevant transactions, are exempted from stamp tax.

4. Factoring agreements, sale/purchase agreements relating to the real estate portfolios of real estate investment companies and preliminary agreements to sell the real estates of such companies are exempted from stamp tax (Article IV-20 and IV-21 of the Table 2 appended to the Stamp Tax Law).

5. According to the IV-23, the documents drawn up in order to ob-tain credit54 from banks, foreign credit institutions and international or-ganizations are exempted from stamp tax. Furthermore, new documents concerning the extension of term and/or the interest rate hike issued as part of restructuring of credit agreements are also benefited from the exemption55. The documents issued for the guarantee and/or the repay-

54 The Ministry of Finance has issued a Circular (numbered DV-4/2004-3 and dated 12.01.2004) that clarifies the rules set out in the Article IV-23 of the Table 2 appended to the Stamp Tax Law regarding the stamp tax exemption on credits to be borrowed from banks, foreign credit institutions and international organizations. In accordance with the provisions specified in that Circular, the definition of credit should be interpreted in a wide-ranging sense; therefore credit concept covers both cash credits and the non-cash credits such as “letters of guarantee”, “surety bonds”, “avals”, “endorsements”, “acceptances”. As per the Circular, “letters of credit” are also within the scope of credit concept. The ruling issued by the Ministry of Finance, numbered B.07.1.GİB.4.34.18.01 and dated 28.02.2008 states that; “ In order to benefit from such exemption, tax payers must obtain a document from foreign authorities, which shows the crediting authorization of foreign institutions and submit it to the intermediary bank located in Turkey”, available at http://www.ivdb.gov.tr/Mukteza/DAMGA/439.htm (last visited 24.08.2012).

7th Chamber of the Council of State cancelled the words “be issued for the first time”, which had been applying in accordance with the Decision of Council of Minister (numbered 87/12067 and dated 17.09. 1987). See Decision of the Council of State, 7th Chamber ( E. 2002/527, K. 2003/3704), dated 25.06.2003. İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 04.09.2012).

55 See, the ruling issued by the Ministry of Finance, numbered B.07-4.DEF.0.16.12-320-05 and dated 20.07.2005, available at www.bursavdb.gov.tr (last visited 04.09.2012).


ment of such credits are also within the scope of the same exemption. Ho-wever, any document carrying guarantee provisions in connection with credit agreements must be prepared by a financial institution in order to benefit from such exemption. At this point, the exemption should be applied on guarantee documents56 without regard to the credit amount; it means that the amount of guarantee documents shall be more than credit amount57. Therefore, no stamp duty shall arise provided that the loan is obtained from a bank or a financial institution located in abroad58.

6. According to the Article IV-35, documents regarding transfer and delivery of shares and/or real estate of companies may be exempt from stamp tax in the event that the income derived from such transactions provides the conditions stipulated to benefit from the corporate tax ex-emption set out in Article 5 of the Corporate Tax Law59. 56 In terms of credits to be obtained from abroad, the intermediary banks located in

Turkey demand guaranty from credit debtor. This guaranty is usually taken as pledge or promissory note. See M. Aykut KELECİOĞLU, “Yurt Dışı Kaynaklardan Kullanılan Kredilerde ‘0’ (Sıfır) Oranlı Damga Vergisi Uygulamasında Karşılaşılan Sorunlar”, Yaklaşım Journal, 2001, January, Vol. 97, p. 122. The deed of assignment prepared in order for the repayments derived from a general credit agreement should also be considered as guarantee document and so exempted from stamp tax. See, the ruling issued by the Ministry of Finance, numbered B.07.1.GİB.04.99.16.01/MUK-95 and dated 17.07.2007, available at www.gib.gov.tr (last visited 04.09.2012).

57 The Circular, numbered DV-18/2007-2/Krediler and dated 06.07.2007; the ruling issued by the Ministry of Finance, numbered B.07.1.GİB.04.99.16.01/2-MUK-391 and dated 06.01.2009, available at www.gib.gov.tr (last visited 04.09.2012).

58 According to the internal notice issued by the Ministry of Finance, numbered 1997/1 and dated 24.06.1997, the papers issued for transfer of the loan granted from a bank or a financial institution located in abroad to third parties under the name of “lending” or any other ways shall be subject to stamp tax for the reason that these documents are not associated with the credit amount to be obtained. See, İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 28.08.2012).

59 In accordance with the first paragraph clause (e) of the article 5 of the Corporate Tax Law, the 75% of income derived by a corporate tax payer from the transfer of its shares and/or real estates may be excluded from corporate tax as long as some certain conditi-ons are fulfilled by such company. The certain conditions to benefit from that exempti-on are set out below;

i) The subjects of the sale shall be limited to real properties, participation shares, foun-ders’ shares, redeemed shares and preferential rights.

ii) The assets and the rights subject to the sale shall take place in the balance sheet of


7. Commercial agreements drawn up as part of all types of “Re-search & Development and Innovation” projects to be carried out within the scope of the Law on the Support of Research and Development Activities No. 5746, have been exempted from stamp tax60. Moreover, in accordance with the Article 37/1 of the Financial Leasing, Factoring and Financing Companies Law No. 6361 and Article 27/1 of the Law on Implementation of Privatization No. 4046, financial leasing agreements and agreements in respect to the privatization process (including service procurement agreements and final transfer agreements) are exempt from stamp tax.

the corporations at least two whole years (730 days) from the acquisition date and the said corporations shall collect the values arising from such sales at least two years. The acquisition date of the old shares should be taken into account as the acquisition date of the shares subject to sale, which are obtained after the exercise of preferential rights or the capital increase realized from internal resources. Similarly, if the transfers are carried out under the provisions of Corporate Tax Law regarding “total and partial spin-off ”, the acquisition date of the transferred or divided corporation shall be taken into account as the acquisition date of the real properties, participation shares, founders’ shares, rede-emed shares and preferential rights.

iii) 75% of the gains derived from the sale of such assets shall be transferred to a special reserve account and kept in this account at least for 5 years as from the calendar year following the fiscal period in which the sale occurs. The exempted amount cannot be transferred to another account (other than the capital account by the way of capital in-jection) or withdrawn from company within the specified period.

iv) This exemption is not applicable to the corporations operating in the real estate busi-ness such as sale or lease of real property.

60 Stamp tax exemption is regulated under the article 3/4 of the Law No. 5746 and the application of this rule is clarified in detail under the Article 13/2-3 of the Regulation of Application and Supervising on the Support of Research and Development Activities as follows; “For the implementation of stamp duty exemption, presenting to enterprises and establishments during transaction such as public notary, public offices, other public body and institutions in transaction of list ratified from public body and institutions giving support and specifying transactions to be done within the context of Research & Development and innovation activities, public body which recourse authority for Research & Development centers and pre-competition cooperation projects, TEKMER directorate for technology center enterprises, TUBITAK for Research & Development and innovation projects supporting by international founds or executing by TUBITAK is enough and another document is not asked for from executive enterprises and establishments. During transactions, in case of not being able to present the list ratified by any inducement, stamp duty related to documents shall be paid by persons concerned”, available at http://www.gib.gov.tr/fileadmin/beyannamerehberi/taxincentives.pdf (last visited 05.07.2012)


8. According to the Temporary Article 3/2-c of the Free Zones Law No. 3218, the commercial agreements being drawn up regarding the operations in free zones are exempted from stamp tax until the end of the fiscal year, in which Turkey fully accesses to the EU.

9. The agreements related to the build-operate and transfer models signed between the governmental authorities and domestic/foreign corporations and carried out in accordance with the Law regarding the Realization of Certain Investments and Services within the framework of Build-Operate-Transfer Model No. 3996, are exempted from stamp tax (Article 12/1 of the Law No 3996)61.

VI. Payment Procedures of Stamp Tax

Pursuant to Article 22/1-a of the Stamp Tax Law and the Commu-niqué of Tax Procedure Law No. 371, tax payers should file an application to the relevant tax office in order to become a stamp tax payer and then submit the stamp tax returns to the relevant tax office until the 23th day of the month following the month in which the documents subject to tax were issued and make the payment until the 26th day of the same month in which the tax return was submitted62.

Nevertheless, the relevant public employees are obliged to control whether stamp tax is paid for the documents submitted to the official authorities (Articles 26 of the Stamp Tax Law). In this respect, Article 27/1 of the Stamp Tax Law sets forth that notaries are prohibited from certifying and delivering the counterparts of the papers whose stamp tax has not been paid. Notaries are also liable to pay a tax fine, calculated on the basis of the unpaid stamp tax (Article 27/3 of the Stamp Tax Law).

61 See, the ruling issued by the Ministry of Finance, B.07.1.GİB.4.34.18.01/2.1.3.3/309, available at www.ivdb.gov.tr/Mukteza/DAMGA/207.htm (last visited 06.09.2012)

62 Besides, in accordance with the General Communiqué on the Stamp Tax Law (Serial No.20) and the General Communiqué on the Stamp Tax Law (Serial No. 43), joint stock companies are obliged to keep stamp tax book and enter the documents subject to stamp tax in such books chronologically.


Stamp tax cannot be imposed after the end of the fifth year, as from the following year in which the document is issued. After the assessment of stamp tax, tax offices must collect stamp tax within 5 years, as of the end of the year in which the stamp tax is due.

VII. Consequences of Undeclared Stamp Tax

As per Article 344 of the Tax Procedure Law No 213, tax payers who cause tax loss by not performing their tax liabilities completely and timely or by submitting the tax returns inadequately or untruly shall be subject to tax penalty 63. In case of a tax loss, the person who is the tax payer or tax responsible becomes subject to a tax penalty, which is equal to the amount of tax loss (Article 344/1 of the Tax Procedure Law). Therefore, tax payers may face a payment of stamp tax and tax loss penalty arising from a tax audit conducted by the tax office. However, if ever tax returns which were not filed on time will be completed prior to the beginning of the tax audit or the appraisement concerning taw base to be made by commission, the tax loss penalty should be calculated as fifty percent of the tax loss Article 344/3 of the Tax Procedure Law.

Nevertheless, under certain circumstances, tax payers can apply to the tax office for the cancellation or reduction of tax penalties. These applications are summarized as follows:

(i) Penitence Institution: Article 371 of the Tax Procedure Law provides that tax payers, on their own accord, can notify the

63 As per the Article 355 of the Tax Procedure Law, public notaries who certified the documents have the obligation to calculate and collect the unpaid or underpaid stamp tax and/or tax loss penalty. In the event that this obligation is not performed by public notaries, they will be charged with special irregularity fine at the rate of 50% for fixed stamp taxes and 10% for ad valorem stamp taxes that are unpaid or underpaid. See Decision of the Council of State, 7th Chamber ( E. 1998/3463, K. 1999/2433), dated 08.06.1999 and Decision of the Council of State, 7th Chamber ( E. 1998/946, K. 1998/4375), dated 08.12.1998 state that, “The underpaid stamp tax amount should not be imposed on the public notary, since the agreement is just certified and not issued by him”. İçtihat Bilgi Bankası, Kazancı Bilişim, available at http://www.kazanci.com.tr (last visited 19.02.2012).


tax losses arising from the difference between the declared and actual tax base or the outstanding obligations regarding declaration. This notification, called as “penitence applicati-on”, should be submitted to the relevant tax office prior to a tax audit or a complaint related to such tax loss which is made by anybody. The benefit of this practice is that the tax penalty which may arise from future audits can be avoided by submit-ting a penitence application providing the missing tax return and making the payment consisting of main tax obligation and “penitence interest”, where an overdue tax of 140 is applied for each delayed month within 15 days as of the application.

(ii) Discount in Tax Penalty: Article 376 of the Tax Procedure Law stipulates that tax payers can make an application to the relevant tax office and request discount for the tax penalty arising from an arbitrary or additional assessment within thirty days starting from the notification date of tax demand. As a result of the application, half of the tax loss penalty is discounted at the first time, 1/3 of those imposed during the following times is discounted and 1/3 of irregularity or special irregularity penalties is discounted. However; no law-suit should be filed against the assessments in order to benefit from the discounts made out for tax penalties.

(iii) Settlement Practice: As per the Additional Article 1-7 of the Tax Procedure Law, tax payers can offer a settlement to the tax office in order to reduce the amount of tax penalty payable. These provisions grant rights to taxpayers for the settlement of tax controversies at the administrative stage. Such applica-tions shall be made within thirty days from the notification date of tax demands. However, it is necessary to note that tax payer has the right to object to the assessment and file a lawsu-it against the tax office for the cancellation of tax penalty, even though settlement process was initiated. On the other hand, once the taxpayer and the tax administration agree on the amount payable, the tax payer must pay the agreed amount


in due time only if the payment period did not expire. If the settlement protocol is notified after the due date, the payment must be made by the tax payer within one month following the date on which notification of settlement protocol is made. Correspondingly, tax payers cannot file a lawsuit against tax office for the cancellation of the assessments after a settlement is made.

In addition to tax loss penalty, which could be imposed under the foregoing principles, the “default interest” as an additional payment should be imposed for stamp taxes that did not accrue on time. This payment is specified in the Article 112 of the Tax Procedure Law. The default interest is calculated at the rate of late fine64 determined in the Article 51 of the Law No. 6183 for the period starting from the normal period of payment until the date of last assessment.

VIII. Conclusion

Stamp tax imposed on commercial agreements is a particular concern for broad range of taxpayers, since a great variety of business transactions can be carried out as a result of the increase in economic relations. This circumstance has enlarged the scope of stamp tax appli-cation and made determining the nature of documents quite difficult. Thus, stamp tax in its present form should be analyzed according to the terms /structure of the transactions, as it also can be seen in the Decision of the Council of State.

In our view, stamp tax is a subject that should be considered com-prehensively as opposed to the publications in fiscal law which mainly focuses on specific issues regarding stamp tax. However, the vague points related to the fundamental rules of stamp tax need to be clarified prior to the evaluations to be made for the transactions. Thus, this article has

64 In accordance with Article 51 of the Law on Collection Procedure of Public Receivables No. 6183, Council of Minister is entitled to increase or decrease late fine rate within the limits of the law. In this regard, the ratio of default fine is determined as 1.40 % for each month by the Decision of Council of Minister No 2010/965, dated 19.10.2010.


tried to address and discusses the main regulations specified in stamp tax legislation and tries to interpret them by referring particular court deci-sions and tax rulings of Turkish tax administration, taking into account what the clauses contains, in order to comprehend some complex issues arising out of stamp tax practice.

Consequently, stamp tax is structured based on a different and sui generis logic. For instance, papers which do not provide any rights to or impose debt, obligations and duties on any of the signatories may be the subject of stamp tax. Moreover, tax payers are occasionally obliged to pay stamp tax for commercial agreements that are never executed due to the termination of such agreements65. Therefore, taxpayers generally think that they make an unnecessary payment. Accordingly, the only criterion to be taken into account in stamp tax derived from commercial agree-ments is whether the document is drawn up in written form or not. On the other hand; increase in the number of signatories or counterparts of agreements and considerable monetary value raise the stamp tax amount to be paid, and hence signatories are placed under a heavy financial bur-den derived from such agreements. For these reasons, tax payers adopt several methods (such as no determinable contract value, provisions to hide or misrepresent the types of transactions, reduction of the number of counterparts and selection of foreign countries as the signing location) with intent to avoid stamp tax.

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Electronic Resources:

http://www. avdb.gov.tr

http://www.bmvdb.gov.tr

http://www.gib.gov.tr

http://www.hmrc.gov.uk/so/manual.pdf

http://www. ivdb.gov.tr

http://www.kazanci.com.tr (İçtihat Bilgi Bankası, Kazancı Bilişim)