Board of Directors' Liability for Tax Debts

Board of Directors' Liability for Tax Debts – Izmir Lawyer

Are the directors of limited companies liable for tax debts?

A limited liability company, as defined in the laws, is established by one or more natural or legal persons under a trade name; its share capital is fixed and consists of the total of the share capital contributions. In such companies, partners are not liable for the company's debts, but are only obligated to pay their committed share capital contributions and fulfill any additional payment and ancillary obligations stipulated in the company agreement. However, Law No. 6183... Law on the Procedure for the Collection of Public Receivables Special procedures and rules have been established regarding the collection of receivables by public institutions; and for the partners of limited companies... It is stipulated that the company will be explicitly liable for all or any uncollectible portions of the debt.

Here, unlike in joint-stock companies, company shareholders will be liable for public debts according to their shareholding ratios, regardless of their capital commitments.

Public Debts of Limited Liability Companies

Article 35 – Shareholders of a limited liability company are directly liable, in proportion to their shareholding, for public debts that cannot be collected from the company, either wholly or partially, or that are deemed uncollectible, and are subject to legal proceedings in accordance with the provisions of this Law.

If a partner transfers their capital share in the company, both the transferor and the transferee shall be held jointly and severally liable for the payment of public receivables prior to the transfer, in accordance with the provisions of the first paragraph.

If the shareholders are different individuals at the time the public debt arises and becomes due, these individuals shall be held jointly and severally liable for the payment of the public debt in accordance with the provisions of the first paragraph.

Is the Board of Directors of a Joint Stock Company Responsible for Tax Debts?

Joint-stock companies are companies with a fixed capital divided into shares, and whose liability for debts is limited to their assets. Due to their structure, shareholders are not liable for company debts beyond their capital contributions. However, an exception to this is the Law on the Collection Procedure of Public Receivables, which stipulates that public receivables that cannot be collected, either wholly or partially, from the company's assets, or are deemed uncollectible, may be collected from the personal assets of the company's legal representatives.

The board of directors should not be targeted directly here. First, a process should be initiated to collect the public debt from the company, and if it is determined that the debt cannot be fully collected, then the matter should be investigated. Targeting the personal assets of the board members without first targeting the company would constitute a violation of procedure and law.

Responsibility of Legal Representatives

Article 35 (Repeated) Public receivables that cannot be collected, either wholly or partially, from the assets of legal entities, minors and those under guardianship, and unincorporated entities such as foundations and communities, or that are deemed uncollectible, shall be collected from the personal assets of the legal representatives and those administering the unincorporated entities in accordance with the provisions of this Law.

Council of State, 7th Chamber, Case No. 2000/4821 E. 2000/4142 K.

Article 317 of the Turkish Commercial Code No. 6762 stipulates that joint-stock companies shall be managed and represented by their board of directors. Article 300, paragraph 8 of the same Code states that the members of the board of directors and those authorized to represent the company shall be registered and announced in the commercial registry; Article 33 stipulates that any changes to the registered matters shall also be registered; and Article 38 establishes that commercial registry records shall be effective against third parties from the business day following the date of publication of the record in a newspaper.

The rule that changes to registered and published matters must also be registered and published is not a condition for the validity of these transactions, but rather an order to protect bona fide third parties. Accordingly, if a person whose membership on the board of directors ends for any reason is not registered in the commercial registry and published in a newspaper, their liability to bona fide third parties for the company's debts continues. However, It is unlawful to hold a board member, who has effectively left the board and therefore no longer has the authority to manage the company's tax obligations, responsible for uncollectible debts owed by the company.

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