This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Sahte Fatura ve Vergi Kaçakçılığı Suçları.
Issuing and using false documents — what is colloquially called a “dummy invoice” — carries among the heaviest sanctions in tax law.
This article covers the evasion offences under Article 359 of the Tax Procedure Act, the difference between a false document and one misleading as to its content, and the possibility of effective remorse.
The Evasion Offences
Article 359 sets out the offences in three paragraphs.
Paragraph (a): accounting tricks in the books and records; opening accounts in the names of persons who do not exist or have nothing to do with the transactions recorded; recording accounts and transactions that should have been entered in the books, wholly or partly in other books, documents or media so as to reduce the tax base; altering or concealing books, records and documents; and issuing or using documents misleading as to their content.
Paragraph (b): destroying books, records and documents, or destroying pages of a book and substituting others; and issuing or using documents, or copies of them, wholly or partly false.
Paragraph (c): printing documents that only persons under agreement with the Ministry may print, without such an agreement, or knowingly using them.
The acts in paragraph (b) carry heavier penalties than those in paragraph (a).
False or Merely Misleading?
This distinction determines the severity of the sentence, and it is the centre of the defence.
A false document is, under Article 359, a document issued as though a transaction or state of affairs existed when it did not — a document for something that never happened.
A document misleading as to its content is one that rests on a real transaction or state of affairs but reflects it inaccurately as to its nature or amount. The transaction is real; the amount, the nature or the party is shown wrongly.
An example: taking an invoice from a company you never bought anything from is a false document; taking an invoice from a company you did buy from, for more than you bought, is a misleading document.
Because a misleading document falls under paragraph (a), the penalty is lighter. So showing that the document rests on a real transaction matters enormously in the defence.
What establishes it: payment records, bank receipts, delivery notes, weighbridge tickets, transport documents and stock records.
The Requirement of an Opinion
Article 367 lays down an important rule of procedure.
Tax inspectors who establish that an evasion offence has been committed must report it to the public prosecutor directly, with the opinion of the relevant report evaluation commission; other officials must do so with the opinion of the relevant unit.
The bringing of a prosecution is suspended until the outcome of the examination is reported to the prosecutor.
So no prosecution can be brought without that opinion — a procedural objection that can be raised in the defence.
The same article provides that decisions of the criminal courts do not affect the acts and decisions of the authorities applying tax penalties, and that decisions setting aside tax penalties do not affect the criminal proceedings.
In other words, the tax process and the criminal process run independently. Winning in the tax court does not by itself end the prosecution.
Effective Remorse
A provision added to Article 359 allows effective remorse for the evasion offences.
Where the whole of the tax assessed, the tax-loss penalty and the default interest are paid, together with the proportion of the penalty the Act specifies, the sentence is reduced.
The size of the reduction depends on the stage at which payment is made: it is larger for payment during the investigation and smaller for payment during the prosecution, up to judgment.
To benefit, it is essential that no proceedings are brought in the tax court, or that they are discontinued, and that no appeal is brought or that any appeal is withdrawn.
That is a real strategic choice: continuing the tax case and benefiting from the reduction are mutually exclusive. The decision turns on how strong the legal basis of the assessment is.
Points for the Defence
- Argue the character of the document. False, or merely misleading? Put in every record showing it rests on a real transaction.
- Argue intent. The offence of using a false document requires knowledge of its falsity. A taxpayer who genuinely received the goods or services and had an invoice issued in good faith is in a different position.
- Put in the payment records. Payments through a bank or by cheque support the reality of the transaction.
- Document the movement of goods: delivery notes, transport invoices, warehouse records, weighbridge tickets.
- Check the requirement of an opinion. Object where a prosecution was brought without a proper one.
- Separate the periods. Acts relating to different calendar years are separate offences, which affects the calculation of sentence.
Taxpayers found to have committed an evasion offence are also placed on the special-procedures list, which affects commercial life severely. That measure too can be challenged in the administrative courts.
Under Article 367 criminal decisions do not affect tax penalties, and decisions setting aside tax penalties do not bind the criminal court. And benefiting from effective remorse requires not suing in the tax court, or discontinuing if you have — a strategic choice, not a formality.
Frequently Asked Questions
What is the difference between a false and a misleading document?
A false document records a transaction that never happened. A misleading document rests on a real transaction but misstates its nature or amount. The false one falls under the heavier paragraph.
Can I be prosecuted without a tax inspector's opinion?
No. Article 367 makes the opinion a precondition of prosecution, and its absence is a procedural objection.
If I win in the tax court, does the prosecution end?
No. The two processes run independently, and neither binds the other.
How does effective remorse work?
Paying the tax, the tax-loss penalty, the default interest and the specified proportion reduces the sentence — more during the investigation than during the prosecution. But it requires giving up the tax case.
What if I received the goods and the invoice turned out to be false?
Using a false document requires knowledge of its falsity. Payment records, delivery notes and stock records showing a genuine transaction are the centre of that defence.