International Journal of Public Finance (Jul 2017)
Evaluating Empowered to Council of Ministers by Article 73/4 of the Constitution in Terms of Legality Principle of Taxation
Abstract
In accordance with the principle of “no taxation without representation”, the “legality principle of taxation” is included in the constitutions of all countries. The authority to amend related to certain elements in taxation and within the minimum and maximum limits prescribed by law has been granted to the Council of Ministers by the special provision in Article 73/4 of the Turkey’s Constitution. The reasons of this provision are “to prevent the fall of tax burden due to the effect of inflation on exemptions and exceptions” and "bringing flexibility and promptness for intervention in the economy to be effective and quick”. The number of regulations regarding empowered of the Council of Ministers in Turkish tax laws is increasing day by day. The Council has been granted the authority to amend at 107 different articles of 25 tax laws in recent legislation. However, the granted authority in 25 of these provisions has never been used. During the period 1971-2017, the Council of Ministers used this authority by 735 Decisions. The authority to make amendments to the Council of Ministers; were used 10 times in the “exemption”, 22 times in the “exception”, 36 times in the “discount”, 438 times in the “rate”, 195 times in the “fixed amount” and 48 times in the “other” elements of tax respectively. It is expected that there will be a decrease in the number of new regulations of the Council of Ministers with the fall of inflation after 2003 in Turkey, but in practice The Council has been granted the authority to amend at new 32 different articles. However, in a country that has embraced democracy and the rule of law, no provision which may cause deviations from “legality principle of taxation” can be accepted. For this reason, provision of empowering to the Council of Ministers should be abolish from the Constitution, which damages to rule of law and legality principle of taxation.
