TC
COUNCIL OF STATE
4. FLAT
E. 2014/3676
K. 2016/4376
T. 13.12.2016
• RETURN OF INCOME TAX WITH THE AMOUNT PAID UNDER THE NAME OF LABOR ASSURANCE COMPENSATION (Compensation for the Interruption Resulted from the Company's Employee Reduction as a result of Termination of the Employment Contract for the Plaintiff without a Legal Obligation to Help the Plaintiff without a Legal Obligation / Payment There is a Clear Taxation Error)
REQUEST FOR REFUND OF INCOME TAX (Income Tax Deducted from the Amount Paid Under the Name of Job Security Compensation - A Payment Made for Assistance for the Plaintiff due to the Unemployment / Wage Not Counted - The Deduction Made is a Clear Taxation Error / Requirement for Acceptance of Request)
• PAYMENT NOT COLLECTED (Job Security Compensation Paid is a Payment Made for Assistance for the Plaintiff's Unemployment Due to the Termination of Employment as a result of the Company's Employee Reduction) / The Claim Is Not Counted for Wage - Income Tax Is Not Accepted )
193 / m.61
SUMMARY: Due to the termination of the work contract of the plaintiff with the protocol arranged between him and the employer, a lawsuit was filed with the request for the cancellation of the transaction regarding the tacit rejection of the complaint filed with the request for the refund of the income tax deducted from the amount paid under the name of job security compensation. With the decision of Istanbul 5th Tax Court; According to Article 61 of the Income Tax Law No. 193, the payments considered as wages and wages are the employee's loyalty to the employer and the payments that can be represented by the money and money provided for the service, and the withholding will be made only from the payments that are in the nature of wages or salaries, Since it is a payment made for the purpose of assistance to the plaintiff because the plaintiff was unemployed without a legal obligation due to the termination of the employment contract as a result of the company where the plaintiff is working to reduce workers, it cannot be mentioned that the payments considered as wages have a common feature, since the deduction made is a clear taxation error, the lawsuit is not compliant with the law. It was decided to accept. The decision examined by appeal was in accordance with the procedure and the law and was upheld.
Summary of the Request: Due to the termination of the work contract of the plaintiff with the protocol arranged between him and the employer, a lawsuit was filed with the request for the cancellation of the transaction regarding the tacit rejection of the complaint filed with the request for the refund of the income tax deducted from the amount paid under the name of job security compensation. With the decision of Istanbul 5th Tax Court dated 26/12/2013 and numbered E: 2013/2099, K: 2013/3025; According to Article 61 of the Income Tax Law No. 193, the payments considered as wages and salaries are the employee's loyalty to the employer and the payments that can be represented by the money and money provided for the service, and that the withholding will be made only from the payments that qualify as wages or wages, Since it is a payment made for the purpose of assistance to the plaintiff because the plaintiff was unemployed without a legal obligation due to the termination of the employment contract as a result of the company where the plaintiff is working to reduce workers, it cannot be mentioned that the payments considered as wages have a common feature, since the deduction made is a clear taxation error, the lawsuit is not compliant with the law. It was decided to accept. The decision is requested to be reversed by claiming that it is against the law.
Summary of the Defense: It was argued that the appeal should be rejected.
The Opinion of the Supervisory Judge of the Council of State: Since the points put forward in the appeal petition are not capable of reversing the court decision subject to appeal, it is considered that the appeal request should be rejected.
ON BEHALF OF THE TURKISH NATION
The requirements of the work were discussed by the Fourth Chamber of the Supreme Council of State:
DECISION: The final decisions of administrative and tax courts can be revoked by appeal, if one of the reasons stated in Article 49 of the Administrative Jurisdiction Procedure Law No. 2577 exists.
CONCLUSION: The decision examined by appeal is in accordance with the procedure and law, and since the reasons of appeal in the petition are not deemed to require reversal of the decision, the decision of the Tax Court will be approved, the appeal costs will be left to the applicant, the file will be sent to the Court, and the following date of notification of this decision. It was resolved by majority vote on 13.12.2016 at the Council of State within fifteen (15) days, with the option to rectify the decision.
VOTE AGAIN:
The decision of the Court regarding the acceptance of the lawsuit filed with the request for the cancellation of the application for the tacit rejection of the complaint filed with the request for the refund of the income tax of 72,566.05 TL paid under the name of job security compensation due to the termination of the work contract of the plaintiff with the protocol arranged between them is appealed.
In Article 1 of the Income Tax Law No. 193, the income of real persons is subject to income tax, and the income is determined as the net amount of the earnings and revenues earned by a real person in a calendar year; In Article 2, the earnings and revenues entering into income are defined as commercial gains, agricultural earnings, wages, self-employment earnings, real estate capital revenues, movable capital revenues and other earnings and revenues; In the first paragraph of the article 25; It has been declared that the compensation and aid given due to death, disability and illness (Amended phrase: 16 / 062009-5904 SD / Article 1) and unemployment (including non-employment compensation) are exempt from income tax.
In Article 61 of the same Law, it is stated that the wage is the benefits provided by the money and months provided in return for the service to the employees subject to the employer and connected to a specific workplace and that can be represented with money; In the second paragraph, a certain percentage of the earnings, provided that the salary has been paid under appropriation, indemnity, cash indemnity (financial liability indemnity), allotment, raise, advance, dues, attendance fee, premium, bonus, provision for expenses or under other names or it is not a partnership relationship. It is stipulated in the first paragraph of the first paragraph of Article 94 that the wages paid to the service providers and the payments that are written in Article 61 and counted as fees (excluding those benefiting from the exception) will be withheld in accordance with Articles 103 and 104.
According to the provisions of the legislation stated above, it is clear that the payments made to the employees under the name of compensation are wages, and for the payment to be exempt from income tax, it must be one of the compensations defined in the Labor Law No. 4857 or be non-return to work compensation based on a court decision.
In the case in question, the compensation decided to be paid according to the protocol made between the plaintiff worker and the employer was paid within the scope of the service contract, the payment made by the employer within the scope of the service contract and the compensation mentioned in Article 61 of the Law, the compensation paid as compensation for non-employment. It is evaluated that it is not possible to evaluate. Therefore, there is no illegality in the income tax deducted by accepting the said payment as a fee.
Therefore, I do not agree with the opinion that the appeal request of the defendant administration should be accepted and the decision of the Court should be quashed.