Under the heading of Collection of Public Receivable by Force which is provided in Second Section of Law 6183, in 54^th Article governing the way which is to be followed during the collection of public receivable, and the proceedings to be carried out;

“Article 54 - Public receivable, which is not paid in due time, is collected by force by collection agency. Collection by force is conducted by utilising any one of the following forms;

1. If public debtor presented warranty to collection agency, by converting the warranty into money or pursuing the guarantor.

2. By attaching the properties of public debtor in a sufficient amount to cover the public debt and converting them into money.

3. Declaring bankruptcy of the debtor if the required conditions are available.

By specifying the provision as provided in article 54 above, the law have actually stated the outlines of the proceedings which are to be executed by Public Institutions basing on the Law 6183.

Public institutions in our country, unfortunately, causes to undermine the constitutional guarantee of property rights of the citizens through using the authorities in their hands in a much broader manner.

"XII. Property Right

Article 35. Everyone has property and inheritance rights. These rights may only be restricted by law for the purpose of public interest. "

Although it is provided in our Constitution that property rights can only be restricted by law and for public interest, and there is no regulation about this matter in Law 6183, we think that public interest principle should not be involved in the Collection of Public Receivables.

Again, in the consideration of these explanation, by examining the decision given by 3rd Department of the Council of State, E.1999/2680, K.2000/2544, dated 28.06.2000; we will try to reveal the judicial remedy and the road map to be followed by the citizens.

THE REPUBLIC OF TURKEY

3rd Department of the Council of State

Principal:  1999/2680

DECISION: 2000/2494

Date of Decision: 28.06.2000

SUMMARY: The case was filed due to the claim of the cancellation of attachment proceeding basing on the facts that income tax  and fund share,  which are accrued in the name of the plaintiff in consequence of the  conciliation before assessment,  and the calculated overdue interest thereof  are not paid.  

It is understood that seven pieces real estate of plaintiff were attached due to the finalised tax liability through attachment notification, and also, personal properties of the plaintiff in the workplace were attached through lien minute without resorting to the determination of their market value by means of expert support, and further, these attached real estates are not converted into money through the sale utilising public auction.  In this circumstance, compliance with the law is not observed in the attachment proceeding that is established a second time over the movable properties by the creditor authority in contradiction to the plaintiff’s interest, without conducting any investigation and making determination whether the attached real estates are adequate enough to cover the public receivable which is the ground for the attachment.

6183 S.K. m. 62)

Appealer: …

Opposite party: Tax Office

Summary of the Appeal:

With reference to the case filed due to the appeal for the cancellation of attachment proceeding on the date of 9.9.1998 upon failure of the payment of income tax and fund share that are accrued in the name of plaintiff upon the pre-assessment conciliation  and default interest calculated in connection thereof, it is provided in the Article 54 of Law 6183 that the public receivable that are not collected within due period is to be collected forcibly through the attachment of the properties in an amount that cover the debt of public debtor. It is an appeal for the reversal of the Decision E:1998/568, K:1999/161, dated 4.3.1999 by Gaziantep Tax Court who dismissed the case on the ground that there were not seen any incompliance with the law in the disputed attachment proceeding which is established on attachment of the personal properties because, with the help of the court file examination,  market value of these real estates were   not known at the time of attachment although real estates of the plaintiff were attached in 1996 for the purpose of the collection of  unpaid receivable in spite of the fact that payment orders that arranged for the pre- assessment conciliation, claiming that disputed attachment proceeding does not comply with the law.

Summary of the defence: Dismissal of the appeal is demanded. 

Investigation Judge:  Cennet Oksal

Her opinion: It is considered that court decision should be reversed since there is no compliance with the law in the attachment proceeding imposed a second time on the personal properties without selling and thus converting the real estates  of the plaintiff  that were attached in 1966 into money due to the finalised tax liabilities of the plaintiff.

Prosecutor: Nurten Karaçay

Her opinion: The appeal is associated with the reversal of the decision of the tax court who dismissed the case filed against the attachment proceeding of the sıx pieces movable properties in the work place for the purpose of collecting finalised tax liability of the plaintiff.

In the 1^st sub-clause of article 62 of Law 6183 about Public Receivable; it is provided that the amount of movable goods, real estates and receivables and rights that are sufficient to cover public receivable, listed in the property declaration of the debtor or determined by the collection agency or those real estates, and rights and receivables that are possessed by third parties, are to be attached by the collection agency. Further, in the 5^th sub-clause of the same law it is ruled that the collection agency is obliged to reconcile the benefits of claimant public agency and the debtor as much as possible in the attachment proceeding.   

With the help of court file examination, it is understood that  an attachment proceeding were conducted  on the seven pieces real estates of the plaintiff by means of attachment notification 96/281, having order no of 282 and 283 in 9.10.1996 due to the tax liability of the debtor in an amount of 4.230.306.00 TL, and the six pieces of movable goods of the plaintiff were attached in 9.9.1998 by means of attachment minute without resorting to the collection of public receivable through the  sale of these real estates making use of public auction.

In this circumstance, compliance with the law is not observed in the second attachment proceeding of the movable goods which is used in the implementation of the profession without conducting any investigation and making any determination whether the real estates, upon which attachment was applied claimant agency, are sufficient to cover public receivable.

Basing on the reasons explained above, it is considered appropriate to accept appeal and to reverse the decision of the tax court which is the subject of the appeal.

IN THE NAME OF TURKISH PEOPLE

 It is adjudged and ordered by Third Department of State Council that:

It is provided in 62/1 article of Law 6183 governing the Collection of Public Receivables that; the amount of movable goods, real estates and receivables and rights that are sufficient to cover public receivable, listed in the property declaration of the debtor or determined by the collection agency or those real estates, and the rights and receivables that are possessed by third parties, are to be attached by the collection agency. Further, in the 3rd sub-clause of the same law it is ruled that the collection agency is obliged to reconcile the benefits of claimant public agency and the debtor as much as possible in the attachment proceeding.

With the help of case file examination,  it is understood that  an attachment proceeding were conducted  on the seven pieces real estates of the plaintiff by means of attachment notification 96/281, having order no of 282 and 283 in 9.10.1996 due to the tax liability of the debtor, yet the movable goods of the plaintiff in workplace were attached in 9.9.1998 by means of attachment minute without resorting to the collection of public receivable through the  sale of these real estates making use of public auction.

In this circumstance, compliance with the law is not observed in the attachment proceeding that is established a second time over the movable properties by the creditor authority in contradiction to the plaintiff’s interest, without conducting any investigation and making determination whether the attached real estates are adequate enough to cover the public receivable which is the ground for the attachment.

Basing on the reasons explained before, it is decided by unanimous vote in 28.06.200 to accept the appeal, to reverse the decision E: 1998/568, K: 1999/161 given by Gaziantep Tax Court in 4.3.1999.

As it is understood from the content of the decision that; the primary way in excessive attachments is to request the correction of the proceeding through applying to the Tax Court that established the proceeding.  Although it is considered probable for the Tax Office to impose the attachment more than adequate amount, rather than the amount which is sufficient for the debt, on the occasion that the Office does not know market values of the movable goods and real estates that were owned by the debtor;

I think that this circumstance shall be taken into account by Tax Office as long as the amount of properties sufficient to cover the liability are duly presented to the Tax Office. In addition, if you submit a petition to the Tax office stating that all of your properties are attached and demanding abolishment of the attachment from a portion of the properties, term of litigation will be interrupted by your application because a regulator proceeding by Tax Office becomes a compulsory.

In the event that your application is dismissed by Tax Office, a Case is required to be opened in TAX COURT. 

Excessive Attachment, namely the attachment of the properties which are more than the properties of debtor sufficient enough to cover the his/her debt, double attachment,  and conducting e second attachment on the same property are not maintained by both Enforcement and bankruptcy law and the Law 6183.  By whatever institution and in whatever method these transactions might be conducted, there is no way for these transactions to bring them in compliance with the law?