Page 9 - EY-VG_Temmuz_2021_v2

French tax code so that no comparability analysis was A. Resource utilization support fund in general terms
needed; and (ii) the sole purpose of the comparables in this
case was to corroborate the finding that the 10% mark-up The subject of RUSF is credit transactions in the most
rate provided under the general service agreement was at general terms. In more concrete terms, the subject of
arm’s length. RUSF consists of loans extended by banks and financial
institutions in Turkey and abroad, and (future-forward)
4. Conclusion import transactions, the payment of which is evaluated
as credit. Therefore, the base of RUSF consists of interest
The Philips decision rendered by the French Supreme amount, transaction amount or exchange rate difference. It
Administrative Court, which is final and cannot be appealed can be said that RUSF is a tax-like financial obligation levied
by the FTA, is interesting due to the reasons below: on financial transactions, in addition to BITT, as a financial
burden mainly on financial transactions and on a transaction
➢• The aim of transfer pricing regulations is to ensure that basis.
prices are compliant with the arm's length principle.
B. Statute of limitation in resource utilization support
➢• Mechanical application of the cost-plus method does not fund applications
necessarily conform with the arm’s length principle.
➢• During tax audits, the burden of proof does not necessarily As it is known, there are two types of statute of limitations
lie with the tax payer, Tax Authority may be required to in tax law: the statute of limitations for assessment and
demonstrate that a price lowering or a price augmenting statute of limitations for collection. The first of these, the
had taken place. statute of limitations, which expresses the time limit for the
assessment of tax, is five years starting from the calendar
➢• For transactions involving cost-based methods it is year following the generation of the tax claim, pursuant
important to; to Article 114 of the Tax Procedure Law No. 213 (“TPL”).
➢• Determining a pricing clause in the intercompany The collection statute of limitation, regulated in the Law
agreements, No. 6183 on Collection Procedure of Public Receivables
(“LCPPR”), refers to the collection period of the tax that has
• Determining mark-up and cost base which constitute reached the payment due date.
the price of a service in the pricing clause of an
intercompany agreement,
1. Statute of limitation for assessment in
• Preparing a comparability analysis to support the price terms of RUSF
determined in the intercompany agreement.
In general, there is no clear regulation on statute of
Source: https://www.ibfd.org/IBFD-Products/Journal- limitation for assessment in the framework of legislation
Articles/International-Transfer-Pricing-Journal/collections/ constituting basis of RUSF levied on credit transactions and
itpj/html/itpj_2019_01_fr_1.html stature of limitation for assessment issue has an uncertainty.
In addition, according to Cabinet Decree numbered
2014/6852, to be applied in terms of surcharge in forward
Statute of limitation application import, published on Official Gazette dated 16.10.2014
and numbered 29147, it is stipulated that provisions of
in terms of resource utilization Customs Law shall be applicable on surcharges which
support fund are never paid or the full of amount is not paid related to
imported commodity and surcharges which are inadvertently
or overpaid for imported commodity as of 23.10.2014.
Introduction In this scope, it is understood that statute of limitation
provisions of Customs Law shall be applied for transactions
Resource Utilization Support Fund (“RUSF”), which can be to be made by customs administrations regarding RUSF and
characterized as a tax alike financial obligation arising due RUSF deductions shall be collected according to procedures
to financial transactions, has been generated according included in Customs Law instead of provisions of TPL and
to Cabinet Decree on RUSF (“CD”) dated 12.05.1988 statute of limitation, which was previously five years for
and numbered 88/12944 and entered into force through forward import, is applied as three years in terms of RUSF
being published on Official Gazette dated 07.06.1988 and deductions according to second paragraph of article 197 of
numbered 19835. Customs Law numbered 4458.
1
A legal gap arises in terms of RUSF implementations since Adjudgments established regarding the case are not
the decree, attached to CD, constituting legal basis for RUSF, adequate to mention a precedent in terms of quality and
has been subject to amendments many times and such gap quantity. In addition, it is concluded according to decision of
significantly impacts issues regarding statute of limitation. 7 Department of State Council regarding appeal request
2
th
towards reversal of decision of first instance court adjudged

1 AKDOĞAN, Hasan, Penalties and Amended Statute of Limitation for RUSF Deductions, Dünya Gazetesi, 22.01.2015.
2 Decision, dated 26.02.2016 and numbered E.2012/7741 and K.2016/1970, of 7th Department of State Council.

July 2021 9