• It is the spirit and not the form of law that keeps justice alive.
    Earl Warren

RECENT AMENDMENTS TO STAMP DUTY PROVISIONS

The Law for the Purpose of Improvement of the Investment Environment numbered 6728 (“Law No. 6728”) entered into force with the Official Gazette dated 09.08.2016 and numbered 29796. Following this, the Stamp Duty General Communiqué Serial No. 60 (“Communiqué”) was published in the Official Gazette dated 29.09.2016 in order to explain further details of the amendments regarding stamp duty that were introduced with the Law No. 6728.

 

First of all, before the enforcement of the Law No. 6728, each copy of an agreement was subject to stamp duty separately over the same amount. With the Law No. 6728 it is now regulated that the stamp duty of the papers, which are subject to proportional tax and issued as more than one copy, shall be calculated over one copy provided that the taxable event that gives rise to stamp duty occurs on 09.08.2016 or on a later date. This new amendment targets to mitigate the stamp duty responsibility especially for the agreements.

 

Besides, if there is more than one guarantor or surety for a transaction in a paper, in addition to the main transaction and agreement, stamp duty will be calculated only for one guarantor or surety apart from the main transaction. This new rule will be applicable for the taxable events that occur on or after 09.08.2016. Moreover, stamp duty will not be calculated for down payments, forfeit money, deduction from wage, penalty clause which is placed on the same paper with the main transaction. Only the main agreement or transaction will be subject to stamp duty. However, the amounts such as down payments, forfeit money, deduction from wage, penalty clause will be subject to stamp duty when they are the main subject of another agreement or they are stated on a separate paper.

 

It is further stated in the Communiqué that stamp duty will not be applicable to a new paper or amendment concerning increase of the transaction amount in relation to an agreement which is subject to stamp tax over the maximum amount. On the other hand, save for the amount, if there is an amendment regarding the elements of an agreement such as labor or quantity, the increased amount will be subject to stamp duty.

 

Additionally, the Communiqué has amended the Table No. 1 of the Stamp Duty Law numbered 488. It is regulated that the tax declarations given for the purposes of correction, including the declarations which are given by combining monthly premium, service documents and withholding tax returns, will be exempt from stamp duty. Furthermore, a provision was added to the Table No. 1 and it is regulated that; if a tender decision is cancelled upon a complaint with objectionable content to a tender authority within the scope of the Public Procurement Law No. 4734 or due to a complaint made directly to the Public Procurement Authority or due to a court decision, the stamp duty corresponding to the part of the tender decision that is not benefited from, will be refused and returned. In addition, new agreement types are added to the Stamp Duty Law No. 488 Table No. 1 under the title of “Papers that Contain a Certain Amount of Money”. It should be noted that a list of new papers are added to the Table No. 2 of the Stamp Duty Law numbered 488 regarding the exceptions of stamp duty. It must be emphasized that share purchase agreements also constitute an exception to the stamp duty obligation with the amendments made to Table No. 2 of the Stamp Duty Law numbered 488.

 

Last but not least, Financial Leasing, Factoring and Financial Companies Law numbered 6361 has been amended with the Communiqué. It is stated that the financial leasing agreements, papers regarding the transfer and modification of such agreements and the agreements executed between the lessor and seller in relation to the supply of products subject to financial leasing and papers issued for their warranties are within the scope of exceptions and will be exempt from stamp duty. Apart from this, participation banks, development and financial leasing companies are defined as “lessor” with the amendments.
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