Article 56 of our Constitution is arranged as follows.
“A. Healthcare and environmental protection
ARTICLE 56- Everyone has the right to live in a healthy and balanced environment. It is the duty of the State and citizens to improve the environment, protect environmental health and prevent environmental pollution. ”
Therefore, as regulated in our Constitution, everyone has the right to live in a balanced, healthy and safe environment, and certain duties are assigned to the State in this regard. According to our Constitution, an obligation of the state is to ensure regular urbanization.
Due to the geological situation and ground features of some settlement centres in our country, the settlements in these areas pose dangers, and some buildings under disaster risk must be transformed as soon as possible, and the need to reorganize the settlement in these areas and transfer some buildings to other places if necessary.
For all these reasons, Law No. 6306 Entered into force called “Transformation of Areas Under Disaster Risk” for the purpose of determining the procedures and principles for improvement, liquidation and renewal in order to create healthy and safe residential areas in areas under disaster risk and lands and lands with risky structures outside these areas.
With the entry into force of the relevant law, in order to identify the areas with disaster risk and make them healthy and livable, buildings that have completed their economic life and are at risk of demolition, have started to be rebuilt and renovated by taking advantage of opportunities such as government loans, rent aid, exemption from fees, taxes and fees.
Foreseen by Law No. 6306; Making the settlement and settlement safe with the measures taken, possible loss of life and property and minimizing all economic and social damages.
While the State fulfilled this Constitutional obligation, it aimed to facilitate the implementation of the law by exempting this vital transformation from tax. For this purpose, the following regulation is included in the 9th paragraph of Article 7 of Law No. 6306:
“From the transactions, contracts, transfers and registrations and practices to be made pursuant to this Law, notary fees, title deed fees, fees charged by municipalities, stamp tax, inheritance and gift tax, revolving fund fee and other fees; The money to be collected in favor of the loans made is exempted from the banking and insurance transactions tax. ”
Despite the duty and tax exemption provided by the Law No. 6306 and the Implementation Regulation, the refund of the fees and taxes unfairly collected can be requested in accordance with Article 116 titled “Tax Error” and its continuation provisions of the Tax Procedure Law. Tax Error is, in Article 116 of the Tax Procedure Law, “Tax error is unfairly demanding or receiving excess or incomplete tax due to errors in tax-related accounts or taxation.” It was defined as In Article 122 of the same law titled “Request for Correction”, it is regulated that taxpayers can request the correction of errors in tax transactions from the tax office in writing.
The legal basis of the applications to the Revenue Administration for the refund of fees and taxes and the lawsuits filed at the Tax Courts are Article 7 of Law No. 6306 and Article 16 of the Implementation Regulation. In the 12th paragraph of Article 16 of the Implementing Regulation, it is clearly stated which fees and taxes fall within the scope of the exemption.
The fees, taxes and fees that should not be collected within the conditions specified in the ninth and tenth paragraphs of Article 7 of the Law are as follows; Notary fees charged pursuant to Article 38 of the Law on Fees,
Land registry and cadastral fees charged in accordance with Article 57 of the Law on Fees,
– Fees collected by municipalities in accordance with the 79th, repeated 79th, 80th and additional 1st articles of the Law on Municipal Revenues No. 2464,
-Stamp tax collected due to papers subject to stamp tax pursuant to the Stamp Tax Law,
– Inheritance and gift tax levied pursuant to the Inheritance and Transfer tax,
– Banking and insurance transactions tax that must be collected in accordance with the Expense Taxes Law due to the money to be taken in favor of the loans to be used,
– All fees collected by institutions and organizations under the name of revolving fund fee, and all kinds of fees determined and received by the municipal council regarding the structure determined as risky and the new structure to be built in place of this structure.
Refund of Fees Paid in Urban Transformation
In the transfer of buildings that have been renovated or reconstructed within the scope of urban transformation, despite the exemption, people who have been charged fees, taxes or fees may first apply to the relevant tax office within 30 days from the date of payment and request the taxes, fees and fees collected from them.
If the 30-day period has elapsed from the date of payment, an application can be made to the Revenue Administration via complaint. If the Tax Office or Revenue Administration rejects the application or does not respond within the legal period, this time, a lawsuit will be required at the Tax Court for the refund of the fee, tax or fee. Before applying to the court, there is an obligation to apply to the relevant administrative institutions.
There is a precedent decision in this regard. In the dispute before the 5th Tax Lawsuit Department of the Istanbul Regional Administrative Court, the title deed fee is paid for the immovable, the risky building annotation is placed on the title deed, in the sales of the independent section of the newly built building on the immovable, the Article. 16/9 of the Regulation. It is stated that it is exempt from the fees, taxes and fees specified in the article. The relevant decision part of the dispute is as follows: “In the event subject to the dispute; Due to the transfer and registration process carried out within the scope of Law No. 6306, the collection of the title deed fee is devoid of legal basis, and it has been concluded that the amount of the title deed fee collected with the cancellation of the transaction established in the opposite direction should be returned to the plaintiff. ”
The documents required for the applications to be made to the Tax Office or the Revenue Administration for a refund from persons who pay fees or taxes unfairly in the application are as follows;
– Tax Collection Receipt
– Photocopy of the Title Deed
– Risky Building Certificate
– Risky Building Exemption Certificate
– Contract Example
Taxes, fees and charges that can be refunded within the scope of urban transformation are subject to a 5-year statute of limitations pursuant to Article 114 of the Tax Procedure Law, with reference to Article 126.
Refunds of fees, taxes and fees within the scope of urban transformation must be made within 5 years from the date of payment. In addition, if the application is rejected after the application is made to the Tax Office or the Revenue Administration within a 5-year period, or if it is not answered within the legal period, then a lawsuit will be filed at the Tax Court within 30 days. Cases not opened within this period are directly rejected by the court.