Loan Tax Decision from the Court of Cassation
Official titleDecision of the 3rd Civil Chamber of the Court of Cassation (Yargıtay)
The Court of Cassation has ruled that the Banking and Insurance Transactions Tax (BSMV) collected on consumer loans cannot be deemed an 'unfair term' and its return cannot be claimed if it is explicitly agreed upon in the contract.
Details of the Regulation
The decision of the Antalya 3rd Consumer Court, holding that the BSMV collected by the bank in consumer loans constitutes an 'unfair term' and must be subject to return, was examined by the 3rd Civil Chamber of the Court of Cassation upon the Ministry of Justice's request for an appeal on points of law for the benefit of the law. The local court had argued that the bank was the taxpayer and that this burden could not be passed on to the consumer.
In its examination, while the Court of Cassation acknowledged that the taxpayer under the Expenditure Taxes Law No. 6802 is the bank, it drew attention to the fact that the parties may agree on who will pay this tax within the framework of freedom of contract. In the concrete dispute, it was established that it was explicitly stated in both the information form provided to the consumer prior to the loan contract and the text of the contract that taxes and duties would be paid by the consumer.
The decision emphasized that passing the BSMV on to the consumer did not lead to an imbalance contrary to the rule of good faith and that the consumer had been informed in advance regarding this matter. Therefore, the local court's decision regarding the acceptance of the lawsuit was found to be contrary to procedure and the law, and was reversed for the benefit of the law.
Questions You Might Have
- Can I get the taxes I paid while taking out a loan back from the bank?
- No, if your contract explicitly states that this tax will be paid by you, it is not possible to get it back pursuant to this decision of the Court of Cassation.
- How does this decision affect currently pending lawsuits?
- Since the decision is a 'reversal for the benefit of the law', it does not change the existing situation between the parties; nor does it bind lower courts. It does, however, show the Court of Cassation's view and is likely to guide similar lawsuits.
- Wasn't the bank the taxpayer, why am I paying it?
- By statute, the taxpayer is the bank; however, the parties may agree by contract that this financial burden will be assumed by the customer; the Court of Cassation regarded this within the scope of 'freedom of contract'.
Key Terms
- Kanun Yararına Temyiz
- The process of reversal of finalized decisions to ensure uniformity in legal practice in cases where they contain an illegality, provided that the outcome does not change in favor of the parties.
- BSMV
- Banking and Insurance Transactions Tax; the expenditure tax levied on banking and insurance transactions.
- Haksız Şart
- An unnegotiated provision included in a contract against one of the parties contrary to the rule of good faith.
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REGAS Commentary
This decision constitutes a critical hurdle for citizens who obtain loans from banks and are considering filing a lawsuit to recover the taxes (BSMV) they paid. If your loan contract or the information form provided to you states that the tax will be paid by you, it no longer appears legally possible to recover this amount on the reasoning of an 'unfair term'.