The principle of ex officio examination within Tax Jurisdiction Law

It is a requirement and a sine qua non condition of rule of law that administrative acts are subject to judicial review. In this context, it is unavoidable that the taxation practices that are in nature of administrative acts also fall within the scope of judicial review. Taxation practices last from the legislative process until the accrual and collection of taxes. Universal principles regarding tax law have been adopted under the Article 73 of the Constitution. In Turkish law, taxation practices are audited starting from the legalization process. Laws are supervised by the Constitutional Court while bylaws, circulars and communiqués are supervised by the Council of State. At the end, the tax is accrued on the liable through unilateral acts made by the tax administration. These acts are audited by the tax courts. Therefore, regardless of the extent of the compliance of the tax legislation with the Constitution and the principles of universal tax law, unilateral acts of the tax administration, which holds the implementor position in the final stage, should also be made in accordance with the law. In such cases, it is the tax courts that will supervise the lawfulness, prevent the administration from arbitrary behavior, but also taxpayers from tax evasion, and establish trust in law through resolution of disputes between the parties. With respect to this, tax jurisdiction law becomes more important day by day. It cannot be assumed that the tax courts are subject to strict form requirements in carrying out these important duties. Article 3 of the Tax Procedure Law provides for the event that gives rise to tax and for that the true nature of the treatments regarding this situation is fundamental. Within the framework of this provision which is a requirement of the economic approach, the tax judge shall go beyond the legal form of the event that gives rise to the tax and shall conduct an examination to find the economic content and to reveal the material fact. Therefore, under the Article 20 of the Code of Administrative Procedure, the tax judge has the authority to conduct ex officio examinations and investigations on both procedural and material matters regardless of the evidence submitted by the parties. In case the contrary situation is adopted, the material fact will not surface to the extent desired, the supervision of the compliance with the law will not be fulfilled, and ultimately, the principle of the rule of law will be damaged. The principle of ex officio examination is valid both in the administrative process in which the taxation practices are carried out and, in the litigation process which is opened with the claim that these acts are unlawful. The scope of the study is limited to the ex officio examination authority of the judicial bodies in the litigation processes. This study includes the legal basis, scope and limitations of the principle of ex officio examination and its relation with the effective principles on tax jurisdiction. The reasons of the adoption of this principle are emphasized by indicating the importance of it within tax law. In this study, within the framework of the principle of ex officio examination, the subjects of evidence system and burden of proof are mentioned and attention is paid to benefit from the decisions of the Council of State and the ECHR. Finally, the problems encountered in tax jurisdiction have been addressed and evaluated within the context of this principle. The findings obtained in accordance with our investigations are summarized under the conclusion section.