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Recidivism in tax offences, which requires the provisions of the Tax Procedure Law and the Turkish Criminal Code to be assessed together, is the subject of this article. We first discuss tax offences, and then under which law recidivism applies to these offences, its conditions and its consequences.
Currency note
This article was prepared in accordance with the legislation and practice in force on its date of publication. The penalty ranges for tax offences under the Tax Procedure Law and the names of some institutions mentioned in the article may have changed since then. You are advised to consult a lawyer for the current position.
An offence is an act, committed by a person with criminal capacity, that constitutes an unlawful act defined by law and for which a sanction is likewise prescribed by law. Tax offences are also defined by law and made subject to a sanction. Although they are generally set out in the Tax Procedure Law, acts constituting tax-related offences are also regulated in Customs Law No. 4458[1] as well. For the purposes of this article, tax offences within the scope of the Tax Procedure Law (VUK) will be addressed.
A tax offence may be defined as the violation of the provisions of the tax laws by acting contrary to the conduct defined therein.[2] Although tax offences are a type of offence with economic effects that cause loss to the state treasury, they are also of a nature that undermines public order and state authority.
In this respect, the statutory provisions on tax offences provide for custodial sentences. This point is decisive in distinguishing tax misdemeanours from tax offences.
Article 359 of the Tax Procedure Law[3] regulates tax evasion offences and penalties, and we see that more than one act gives rise to the offence of tax evasion. By way of a general definition, in tax criminal law the offence of tax evasion consists of acts that can be committed, objectively and with intent, by the acts set out in the statutory provision, without any requirement of tax loss, and that disrupt the public order established by the State in the field of taxation and are not accepted by the legal order.[4] Some of the acts referred to in the definition are as follows: “Committing accounting and bookkeeping fraud”, “Opening accounts in books and records in the names of persons who are not real or who have no connection with the transactions recorded”, “Recording accounts and transactions that must be recorded in the books in other books, documents or other recording media”.
As can be seen from the said statutory provision, the legislator has prescribed a custodial sentence as the sanction for this offence.
Everyone has the right to respect for, and to demand respect for, their private, commercial and family life.[5] Today, matters such as privacy and the protection of personal and commercial secrets have become a universal norm. However, with regard to the protection of certain information and secrets, the legislator has prescribed sanctions for those who fail to comply. In tax criminal law, confidentiality is linked to the offence of breach of tax confidentiality. Here, the legislator has afforded greater protection by making this matter an offence.
As regards this offence, the tax administration and administrative judicial authorities may, by virtue of their duties, obtain certain tax-related information about taxpayers. Such information may include secrets or may overlap with the taxpayer’s trade secrets. For this reason, administrative staff who learn of such information must keep it confidential, because such information may be used to cause pecuniary or non-pecuniary damage to the taxpayer.[6] For this reason, the legislator has made this matter an offence under Article 362 of the Tax Procedure Law.[7] As can be seen from the statutory provision, for this unlawful act too, the legislator has provided, by way of reference to Article 239 TCK,[8] provides, by way of cross-reference, that custodial sentences shall be imposed.
Although the heading of the statutory provision does not make clear by whom this offence may be committed, Article 363 of the Tax Procedure Law[9] provides that the offence may be committed by public officials. Although the legislator does not specify which acts by officials constitute the offence, it would be appropriate at least to indicate what kinds of acts are meant.
Although this offence is also set out in Article 363 of the Tax Procedure Law, as regards the sanction it is provided, by way of reference to Article 257/1 TCK,[10] that the officials concerned are to be punished.
Tax offences examined in the article and the provisions referred to
| Offence | VUK provision | In terms of sanction |
|---|---|---|
| Tax evasion offences | m. 359 | Custodial sentence |
| Vergi mahremiyetinin ihlali | m. 362 | TCK m. 239’a yollama |
| Handling the private affairs of taxpayers | m. 363 | TCK m. 257/1’e yollama |
Although the Tax Procedure Law, which is a special law, contains provisions on recidivism in Article 339, those provisions concern tax misdemeanours. For this reason, the recidivism provisions of the Tax Procedure Law do not apply to tax offences.
Vergi kabahatleri
The recidivism provisions of Art. 339 of the VUK apply.
Tax offences
The recidivism provisions of Turkish Criminal Law apply (Art. 5 and Art. 58 of the TCK).
Since the Tax Procedure Law contains no recidivism provisions for tax offences, the recidivism provisions of Turkish criminal law apply. This is because Article 5 TCK
“The general provisions of this Law shall also apply to offences under special criminal laws and laws containing penalties.” so provides. The provisions of the Tax Procedure Law on tax offences and penalties bring it within the category of laws containing penalties and therefore result in the general provisions of the Turkish Criminal Code applying to these offences and penalties.
The institution of recidivism is regulated in Article 58 of the Turkish Criminal Code:
“(1) Where a new offence is committed after the judgment given for a previously committed offence has become final, the provisions on recidivism shall apply. For this purpose, it is not necessary for the sentence to have been executed.” In this way, the provision indicates which type of recidivism applies to the offences concerned and under what condition it applies.
As can be seen from the first paragraph of the provision, of the types of recidivism examined in the section on types of recidivism, “general recidivism” is at issue. As will be recalled, under general recidivism the recidivism provisions apply where two different offences are committed at certain intervals, without any distinction being drawn as to the types of offence committed. This is seen in the first sentence of the first paragraph of the said provision, while the second sentence contains no requirement that the sentence be executed; it is sufficient for the sentence to have become final.
Article 58/2 TCK provides:
“(2) The provisions on recidivism shall not apply, in respect of a previously committed offence,
a) in the case of a conviction to imprisonment for more than five years, where five years have elapsed from the date on which that sentence was executed,
b) in the case of a conviction to imprisonment for five years or less or to a judicial fine, where three years have elapsed from the date on which that sentence was executed,
to offences committed after such period has elapsed.”
Turkish Criminal Code, Art. 58/2
The tax evasion offences mentioned in the section on tax offences are the tax offences subject to the heaviest penalty. Under Article 359 of the Tax Procedure Law, the upper limit is set at five years. For this reason, the recidivism provision applicable to all tax offences is sub-paragraph (b) of paragraph 2 of Article 58 of the Turkish Criminal Code. As provided therein, the period within which recidivism applies is three years from the date on which the sentence imposed for the first offence was executed.
An examination of the recidivism provision of the Turkish Criminal Code shows that, in criminal law, recidivism has three conditions. These are: i) the existence of a conviction for the previous offence on which recidivism is based, ii) the commission of a new offence, and iii) the time condition. Tax offences display no particular features compared with other offences as regards recidivism.[11]
This condition is found in the first sentence of Article 58/1 TCK. What matters for us is the circumstances in which this condition is satisfied.
At this point, it is necessary to consider when a judgment becomes final. A judgment becomes final where no legal remedy is pursued, where a remedy is pursued and then withdrawn, or where the application for a legal remedy is upheld or rejected. If a new offence is committed before the judgment has become final, the rules on concurrence of offences must be applied.
Even where there is a final criminal judgment, the subsequent paragraphs of the relevant article set out cases in which recidivism does not apply. Under Article 58/4 TCK:
“The provisions on recidivism shall not apply as between intentional offences and negligent offences, or as between purely military offences and other offences. Judgments given by the courts of foreign countries shall not form a basis for recidivism, except for the offences of intentional killing, intentional wounding, robbery, fraud, manufacture of and trade in narcotic or stimulant substances, and counterfeiting of money or valuable stamps.”
Turkish Criminal Code, Art. 58/4
Under Article 58/5 TCK:
“The provisions on recidivism shall not apply to offences committed by persons who had not attained the age of eighteen at the time of the act.”
Turkish Criminal Code, Art. 58/5
Genel af hâlinde
Apart from the relevant paragraphs of the statutory provision, even where there is a final sentence, if a general amnesty is declared under Article 65 TCK, the sentences imposed will be extinguished together with all their consequences, and recidivism therefore cannot be applied in the execution of the sentence imposed for the new offence.[12]
We noted earlier that general recidivism applies to tax offences to which the Turkish Criminal Code applies. For this reason, as regards the condition that a new offence giving rise to recidivism be committed, there need be no identity between the first offence and the second offence.
An important issue here is the situation where the first act constitutes an offence while the second act is a misdemeanour. In such a case, the recidivism provisions of the Turkish Criminal Code will not apply. The Turkish Criminal Code will apply only to tax offences (within the scope of our subject).[13]
The provision of Article 58/4 TCK referred to under the previous condition is also a provision that may be considered under this condition. The reason why the recidivism provisions do not operate as between negligent and intentional offences is that, in negligent offences, there is no will to breach the law, whereas in intentional offences such a will exists.
For the recidivism provisions to apply, the second offence must be committed within a certain period after the sentence imposed for the first offence has become final. In this regard, Article 58/2 TCK draws a limit and divides the penalties provided for in the Law into two groups according to their severity.
Under sub-paragraph (a) of Article 58/2 TCK:
“In the case of a conviction to imprisonment for more than five years, five years from the date on which that sentence was executed”
Turkish Criminal Code, Art. 58/2-a
Under sub-paragraph (b) of Article 58/2 TCK:
“In the case of a conviction to imprisonment for five years or less or to a judicial fine, [the provisions on recidivism] shall not apply to offences committed after three years have elapsed from the date on which that sentence was executed.”
Turkish Criminal Code, Art. 58/2-b
As noted at the beginning of the section on tax offences, among the penalties for tax offences the upper limit reaches five years only in the offence of “tax evasion”. For this reason, sub-paragraph (b) of Article 58/2 TCK will apply to tax offences.
The period starts from enforcement
Another important point regarding this condition is that the legislator provides that the period begins to run upon the execution of the final criminal judgment. The recidivism period will not begin to run until the conviction against a person has been executed. The aim here is not to reward a convicted person who evades execution.[14]
For the sentence to be deemed executed, and hence for the recidivism period to begin, the sentence imposed must have been executed in full. Therefore, for example, in the case of a suspended sentence, the three-year recidivism period begins to run not from the date on which the suspension becomes final but from the moment the probation period has been completed without incident. Similarly, in the case of conditional release, the period begins to run from the date on which the period to be spent under supervision outside the penal institution ends.[15]
Erteleme hâlinde
The period starts to run not from the date on which the suspension becomes final but from the moment the probation period is completed without incident.
In the case of conditional release
The period starts to run from the date on which the period to be spent under supervision outside the penal institution begins.
Under the Turkish Criminal Code, the consequences of recidivism are that the subsequent sentence is served under a special execution regime and that a probation measure is applied after execution.[16] Since the institution of recidivism in tax offences applies within the scope of the Turkish Criminal Code, its consequences must also be considered within the scope of the Turkish Criminal Code.
The sanctions for offences under the Turkish Criminal Code and under the Tax Procedure Law are set out in the relevant articles. In offences to which recidivism applies under Article 58 TCK, where the article governing the subsequent offence provides for imprisonment and a judicial fine as alternative penalties, the judge must impose imprisonment. Here, the judge’s discretion has been removed.[17]
The second consequence attached to recidivism is that the sentence of imprisonment imposed for the subsequent offence is served under the execution system specific to recidivists. This must be stated in the conviction for the subsequent offence (Article 58/8-9 TCK). Under the execution regime specific to recidivists, the period before recidivists may be conditionally released is extended and, in the case of repeated recidivism, recidivists cannot benefit from conditional release at all.
As set out in Article 58/6 of the Turkish Criminal Code, a probation measure is applied to a recidivist after the execution of the sentence.
Paragraph 8 of Article 58 of the Turkish Criminal Code states that the manner in which the probation measure is applied to recidivists is to be set out by law. That law is Law No. 5275 on the Execution of Penalties and Security Measures.[18]
Article 51 TCK governs the suspension of sentences of imprisonment. Accordingly, where the offender has not previously been sentenced to more than three months’ imprisonment for an intentional offence and, through the remorse shown to the court during the trial, gives the court confidence that they will not reoffend, the sentence of an offender sentenced to imprisonment of two years or less for the offence committed may be suspended.
Suspension in respect of recidivists
Here, the judge is given discretion as to the suspension of the sentence. However, where the recidivist was sentenced to more than three months’ imprisonment for the first offence, the sentence for the subsequent offence can under no circumstances be suspended.
[1] Official Gazette 04.11.1999/23866
[2] Op. cit. Şenyüz, p.383
[3] See Article 359 – (Amended: 23/1/2008-5728/276) a) Those who, in books and records kept or drawn up under the tax laws and subject to an obligation of retention and production: 1) commit accounting and bookkeeping fraud in books and records, open accounts in the names of persons who are not real or who have no connection with the transactions recorded, or record, wholly or partly, accounts and transactions that must be recorded in the books in other books, documents or other recording media in such a way as to reduce the tax base; 2) falsify or conceal books, records and documents, or issue documents that are misleading as to their content, or use such documents, shall be sentenced to imprisonment from eighteen months to three years. Failure to produce books and documents to persons authorised to conduct tax inspections during an inspection, where their existence is established by notarial certification records or otherwise, shall be regarded as concealment for the purposes of this paragraph. A document which, although based on a genuine transaction or situation, reflects that transaction or situation contrary to the truth as to its nature or amount is a document misleading as to its content.(2) b) Those who destroy books, records and documents kept or drawn up under the tax laws and subject to an obligation of retention and production, or destroy pages of books and replace them with other sheets or with no sheets at all, or forge, wholly or partly, the originals or copies of documents, or use such documents, shall be punished with imprisonment from three to five years. A document drawn up as though a transaction or situation existed when no such genuine transaction or situation exists is a forged document. c) Those who print documents which, under the provisions of this Law, may be printed only by persons having an agreement with the Ministry of Finance, without having such an agreement with the Ministry, or who knowingly use them, shall be punished with imprisonment from two to five years. This article shall not apply to those who notify the situation to the relevant authorities in accordance with the conditions of remorse in Article 371. The application of the penalties set out in this article to those who commit tax evasion offences does not preclude the separate application of the tax loss penalty set out in Article 344.
[4] Hasan Hüseyin Bayraklı, Vergi Ceza Hukuku [Tax Criminal Law], 3rd ed., Külcüoğlu Kültür Merkezi Yayınları, Afyonkarahisar, 2006, p.241
[5] Constitution of the Republic of Türkiye, Article 20/1: Everyone has the right to demand respect for their private and family life. The privacy of private and family life shall not be violated,
European Convention on Human Rights, Article 8/1: Everyone has the right to respect for his private and family life, his home and his correspondence.
[6] Şenyüz, op. cit., p. 469
[7] Breach of tax confidentiality: Article 362 – (Amended: 23/1/2008-5728/278) Persons obliged to observe tax confidentiality under this Law who breach that confidentiality shall be punished in accordance with the provisions of Article 239 of the Turkish Criminal Code.
[8] Article 239- (1) A person who gives to unauthorised persons or discloses information or documents constituting trade secrets, banking secrets or customer secrets of which they have knowledge by virtue of their status or duty, profession or trade shall, upon complaint, be punished with imprisonment from one to three years and a judicial fine of up to five thousand days. Where such information or documents are given to unauthorised persons or disclosed by persons who obtained them unlawfully, a penalty shall also be imposed under this paragraph. (2) The provisions of the first paragraph shall also apply to scientific discoveries and inventions or information relating to industrial applications. (3) Where these secrets are disclosed to a foreigner not resident in Türkiye or to that foreigner’s agents, the penalty to be imposed on the offender shall be increased by one third. In that case, no complaint is required. (4) A person who, by use of force or threats, compels a person to disclose information or documents falling within the scope of this article shall be punished with imprisonment from three to seven years.
[9] Article 363 – (Amended: 23/1/2008-5728/279) Officials who are prohibited under the last paragraph of Article 6 of this Law from handling taxpayers’ accounts, correspondence and other private affairs relating to the application of the tax laws, and who act in breach of this prohibition, shall be punished in accordance with the first paragraph of Article 257 of the Turkish Criminal Code. Where such acts cause a loss of tax, a tax loss penalty shall additionally be imposed on the person under Article 344 of this Law.
[10] Article 257- (1) Save for cases separately defined as offences by law, a public official who, by acting contrary to the requirements of their duty, causes persons to suffer harm or causes loss to the public, or provides persons with an unjust benefit, shall be punished with imprisonment from six months to two years.
[11] RENÇBER, op. cit., p.68
[12] Merve Fulya KAYA, Vergi Ceza Hukukunda Tekerrür [Recidivism in Tax Criminal Law], Unpublished Master’s Thesis, Istanbul, 2018, p.44
[13] RENÇBER, op. cit., p.72
[14] RENÇBER, op. cit., p.73
[15] Koca/Üzülmez, op. cit., p. 632.
[16] Fulya Mercimek, Birleşme, Tekerrür Ve İştirak Görünümlerinin Vergi Kabahat Ve Vergi Suçları Bakımından Karşılaştırmalı İncelenmesi [A Comparative Study of Merger, Recidivism and Complicity in Tax Misdemeanours and Tax Offences], Unpublished Master’s Thesis, Bursa, 2012, p.72
[17] Merve Fulya Kaya, op. cit., p.55
[18] Official Gazette 29.12.2004/No.25685
Related legislation: Tax Procedure Law No. 213 (mevzuat.gov.tr)
The recidivism provisions in Art. 339 of the VUK concern tax misdemeanours. Since the VUK contains no recidivism provision for tax offences, pursuant to Art. 5 of the TCK (Turkish Criminal Code) the general provisions of the TCK and Art. 58 of the TCK, which governs recidivism, apply.
TCK m. 58/1’e göre önceden işlenen suçtan verilen hüküm kesinleştikten sonra yeni bir suç işlenirse tekerrür hükümleri uygulanır; bunun için cezanın infaz edilmiş olması gerekmez.
TCK m. 58/2’deki süreler önceki cezanın infaz edildiği tarihten itibaren işler. Makaleye göre ertelemede süre deneme süresinin sorunsuz geçirildiği andan, koşullu salıverilmede ise denetim altında geçirilmesi gereken sürenin bitiminden itibaren başlar.
TCK m. 58/4’e göre kasıtlı suçlarla taksirli suçlar arasında tekerrür uygulanmaz; m. 58/5’e göre fiil sırasında on sekiz yaşını doldurmamış kişilerin suçlarında da uygulanmaz. Makalede genel af hâlinde de tekerrür uygulanamayacağı belirtilmektedir.
If imprisonment and a judicial fine are provided as alternatives for the subsequent crime, the judge imposes imprisonment; the sentence is served under the execution regime specific to recidivists, and supervised release is applied after execution.
According to the article, although the judge has discretion regarding suspension under TCK Art. 51, the sentence imposed for a subsequent crime cannot be suspended for a person who received a prison sentence of more than three months for a previous crime.
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