Introduction

Through its decision dated 30 November 2023 and No. E. 2023/105 K. 2023/208 ("Decision"), the Constitutional Court of the Republic of Türkiye ("Constitutional Court") annulled the regulation stating that inflation adjustment will not be made for 2021 as stipulated under Provisional Article 33 of Turkish Tax Procedural Code (“TPC”).This Newsletter aims to summarize the above-mentioned Decision.

The Aim of Inflation Adjustment

As per provisional Article 298 of the TPC, inflation adjustment may be defined as the calculation of the purchasing power of non-monetary assets at the date of the financial statement by multiplying them with the adjustment factor.

The legal purpose of inflation adjustment may be summarized as the aim to remove the effects of high inflation. In the application of inflation adjustment, in order to minimize the fluctuations between periods, it has been deemed appropriate to seek two criteria together as the starting and ending criteria for inflation adjustment. Accordingly, in order to start the inflation adjustment, the cumulative increase in the price index in the last three accounting periods must exceed 100% and the increase in the price index in the current accounting period must be more than 10%.

The last inflation adjustment application was implemented in 2004. However, the conditions for inflation adjustment were re-realized as of the end of 2021. However, the Provisional Article 33/1 of the TPC, which was effective as of 20 January 2022, stated that the financial statements will not be subject to inflation adjustment during FY 2021 and 2022, including the provisional tax periods, and the provisional tax periods of the 2023 accounting period, regardless of the fact whether the conditions for inflation adjustment are met or not.

Constitutional Court Decision

The Constitutional Court Decision dated E. 2023/105, K. 2023/208;published in the Official Gazette dated16 January 2025, was held as a result of the request made by a first instance tax court, in the context of the lawsuit filed with the request for the refund of the overpaid tax because the taxpayer had paid excess tax with a reservation because the inflation adjustment had not been made because of the Provisional Article 33/1 of the TPL, even though the inflation conditions for 2021 were met.

The key points of the Decision are summarized as follows:

  • Within the scope of the Decision, the phrase “2021” indicated in the provisional Article 33/1 of the Tax Procedure Law No. 213, which regulates the deferral of the inflation for 2021 and 2022 accounting periods and entered into force on 20.01.2022, was annulled as found to be unconstitutional.
  • The Decision stated that (i) as of 03.01.2022, the financial statements dated 31.12.2021 should be subject to inflation adjustment; however, (ii) with the regulation dated 20.01.2022, the amendment regarding the application of inflation adjustment, which affects the corporate tax base after the taxable event has occurred, is incompatible with the principle of legal certainty and results in the retroactivity of the rules of law.
  • Within the Decision, the deferral regulation for 2021 was found to be contrary to the principle of “legality of taxation” in terms of the regime of limitation of the property right, and thus contrary to Article 13, Article 35, and Article 73 of the Constitution.
  • As the annulment decisions are not retroactive under Article 153 of the Constitution, the Decision will only have consequences for the taxpayers who submitted their declarations with reservations for 2021.

Conclusion
As the annulment decisions are not retroactive under Article 153 of the Constitution, the Decision will only have consequences for the taxpayers who submitted their declarations with reservations for 2021. In other words, the referred Decision will not have any legal effects on the taxpayers who did not submit their declaration with reservation & did not initiate the tax litigation procedure.

On the other hand, it is important to note that the Constitutional Court’s conclusion that the income tax and the corporate income tax occur on 31 December may be interpreted as a change of jurisprudence.