Evaluation of the act of issuing and using fake documents in the light of judicial decisions

Documents that comply with the rules regarding invoices specified in both the Tax Procedure Law and the Turkish Commercial Code in terms of their form and appearance, but whose content does not reflect the truth, does not contain a real delivery of goods or a real service, is prepared to mislead tax authorities and is prepared for the purpose of tax evasion are encountered in practice. This type of document is called a forged document in our legislation. In the crime of forging documents, either the security of taxes is jeopardized or tax losses arise. The main purpose of taxpayers in these acts is to not fulfill their tax liabilities at all or to minimize their tax liabilities and thus increase their own profit margins by reducing the tax to be paid. The regulations regarding forged document crimes are mainly included in Article 359 of the Tax Procedure Law. In order for forged document crimes to occur, the documents in question must be documents that are required to be prepared, kept and presented in accordance with tax laws, the documents must be a means of proving the event that gives rise to the tax, and these documents must be legally valid. Forged document crimes are committed through the acts of preparation and use, and therefore forged document crimes are divided into two as forged document preparation and forged document use. Forged document crimes are committed by taxpayers, taxpayers or other participants in order to either not pay any tax or to pay less tax. The acts of preparation and use in question are of a material and executive nature and are contrary to the legal document order, and these crimes cause damage to the state treasury. Those who prepare forged documents and those who use them constitute the two sides of the forged document trade. When the two sides are examined, it is seen that those who prepare forged documents do this activity for purposes such as earning commission income, while those who use forged documents act for purposes such as increasing their expenses and reducing the VAT amounts to be paid by paying certain rates of commission and transferring the price included in the forged documents, but not based on real purchases and sales, to their records. In cases where acts of preparing and using forged documents are detected by tax administrations, certain administrative procedures are established and certain administrative sanctions are applied. These procedures include imposing tax loss penalties in cases where tax loss occurs; imposing general irregularity penalties and special irregularity penalties on the relevant person; taxing the commission earnings obtained by persons who prepare forged documents; not accepting them as an expense item when determining income tax and corporate tax bases in cases where it cannot be proven that the goods or services specified in forged documents were actually received; not deducting VATs written in forged documents; including taxpayers who prepare or use forged documents in code lists and realizing VAT refund requests of those included in these lists according to special procedures; restricting the reconciliation rights of those who use or prepare forged documents. At the same time, the perpetrators are punished with imprisonment by criminal courts. The simultaneous application of sanctions such as imposing a prison sentence of up to 8 years by criminal courts on those who commit acts of forging documents and imposing a tax loss penalty of 3 times the tax lost by the tax administrations are criticized in terms of the principle of proportionality. In terms of forged document acts, the relationship between tax administrations, tax courts and criminal courts of first instance should also be mentioned. While the same person may be acquitted in the trial in the criminal court of first instance due to the same act due to forged document act, the case may be dismissed in the trial in the tax court by finding the tax transactions lawful. The opposite of this situation may also be possible, while the person is sentenced to a judicial penalty by the criminal court, the tax court may find the tax transactions against him unlawful and cancel them. This situation may lead to the tax court decisions being contradictory rather than harmonious and the criminal court decisions being contradictory. In order to prevent such contradictions, it is necessary to establish interaction between tax administrations, tax courts and criminal courts. The principle of non bis in idem is defined as not filing more than one lawsuit or ruling against the same person for the same act. According to this definition, the principle has two elements: 'the act being the same' and 'the person being the same'. According to the Tax Procedure Law, although the act of forging a document is essentially a single act, it is subject to both judicial and administrative sanctions. For this reason, the last paragraph of Article 359 of the Tax Procedure Law, which includes regulations on forging documents, Article 340 of the Tax Procedure Law, and the last paragraph of Article 367 of the Tax Procedure Law, which was annulled by the Constitutional Court, are the provisions that are discussed in terms of the principle of non bis idem. While it is debatable whether these regulations violate the principle of non bis in idem, the ECtHR, the Constitutional Court, the Council of State and the Court of Cassation also approach this issue differently. There are some problems in the stages such as detecting acts of preparing and using forged documents, applying sanctions to these acts and taking legal action against the sanctions, and after addressing these issues in our thesis, solution suggestions will be presented. Keywords: Tax procedure, fake document, non bis in idem, ECtHR.