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According to the other approach, the only interest that can
be taken into account in the refund of the excess or improper
tax in terms of the clear provision of Article 112 of the TPL
is the deferment interest regulated by the Law No. 6183
on the Collection Procedure of Public Receivables. This
approach is essentially a continuation of the approach that
claiming interest is only possible in the presence of a law or
contractual provision. In this context, while the deferment
interest is indicated in the fourth paragraph of Article 112
of the TPL, which constitutes the legal basis, the tax refunds
should be processed according to this interest.
It should be stated that decisions in accordance with two
approaches could be observed in tax jurisdiction. On the
other hand, it is understood that there is a tendency to
decide on deferment interest for disputes after 15.06.2012,
which is the effective date of the fourth paragraph of Article
112 of the TPL, as the details will be given below.

IV. In lieu of conclusion: Up-to-date decision of
GATC

Approach of Council of State related to interest rate
discussion towards interest rate to be applied for the refund
of excessive and improper tax has been clearly explained
within the decision of GATC, numbered E.2021/1 and
K/2021/3, which were published on Official Gazette dated
September 9, 2021. The grounds of the decision can be
summarized as follows:

• There is a general provision – special provision relationship
between Article 1 of the Law No. 3095 on Statutory
Interest and Default Interest and the fourth paragraph of
Article 112 of the TPL.

• Therefore, in the refund of taxes collected before the
effective date of the fourth paragraph of Article 112 of
the TPL, which is 15.06.2012, statutory interest will be
applied in accordance with the general provision, since
there is no special provision.
• On the other hand, in the refund of taxes collected after
15.06.2012, a deferment interest rate should be applied in
accordance with the special provision.

As it can be seen, the Council of State did not hesitate to
decide whether interest will be calculated in the refund
of the excessive or improperly paid tax and it has decided
that the tax to be refunded will be refunded with interest
in accordance with the relevant decisions of the European
Court of Human Rights and the Constitutional Court.
However, while determining the interest rate to be applied
in the aforementioned decision, the effective date of the
current version of the fourth paragraph of Article 112 of the
TPL has been taken as a basis. In this context, the interest
rate on the refund of the excessive or improper tax will be
determined according to whether the tax in question was
collected before 15.06.2012 or not: If the collection is
made before the said date, it will be refunded with statutory
interest and deferment interest will be applied to the refund
of taxes collected after the said date.

Explanations in this article reflect the writer's personal view on the matter. EY and/or Kuzey YMM ve Bağımsız Denetim A.Ş. disclaim any responsibility
in respect of the information and explanations in the article. Please be advised to first receive professional assistance from the related experts before
initiating an application regarding a specific matter, since the legislation is changed frequently and is open to different interpretations.
12 November 2021 Kasım 2021