Problems and Solutions of Individual Tawarruq in Turkish Fiscal System

Türk Vergi Sisteminde Bireysel Teverrukun Vergilendirilmesinin Sorunları ve Çözüm Önerileri

İlhami SÖYLER, Buğra Vehbi DÖNER

The main reason for the depressions in the world economy is the financial and investment instruments that are not based on any assets. In the countries which are using more asset-based economies instead of financial instruments, global economic depressions are less effective than the rest of the world. The main reason why the depressions experienced in the world economy are felt more slightly in the Islamic World is the existence of asset-based financial and investment instruments. Since the increase in the use of Islamic financial instruments, which is used most by Great Britain worldwide, is going to increase the usage of assets in our country, this phenomenon will decrease the effectiveness of non-existence economic indicators in the economy. Thus, global and regional economic fluctuations, exchange rate fluctuations, and credit ratings won’t be able to have serious effects on our economy. In this article, the legal nature of financial and investment instruments known as tawarruq in the Islamic literature, discussions about the institution in terms of Islamic law, and taxation of individual tawarruq will be analyzed. In the conclusion, a new approach to taxation of individual tawarruq will be presented with the scope of the purpose of the analysis which had made in the article and the actual purpose of the tawarruq system.

Islamic Finance, Tawarruq, Turkish Fiscal System, Individual Tawarruq.

Dünya ekonomisinde yaşanan krizlerin temel nedeni, herhangi bir varlığa dayanmayan finans ve yatırım araçlarıdır. Dünya ekonomisinde yaşanan krizlerin İslam Dünyası’nda daha hafif hissedilmesinin temel nedeni ise, varlığa dayanan finans ve yatırım enstrümanlarının varlığıdır. Varlığa dayalı İslami finans ve yatırım enstrümanları arasında, İslami bankacılık, sukuk (İslamî tahvil), tekafül (İslamî sigorta), murabaha (peşin alım - vadeli satım) ve teverruk (vadeli alım-peşin satım) gelmektedir. Dünya’da en çok Büyük Britanya tarafından kullanılan İslami finans enstrümanlarının ülkemizdeki kullanımının artması, varlığa dayanmayan finans enstrümanlarının ekonomideki etkinliğini azaltacağından; küresel ve bölgesel ekonomik dalgalanmaların, kur manipülasyonlarının ve raiting kuruluşlarının oynak ve muğlak değerlendirmelerinin olumsuz etkilerini büyük ölçüde bertaraf edecektir. Bu çalışmada, İslami literatürde teverruk olarak bilinen finans ve yatırım aracının hukukî mahiyeti, İslam hukuku açısından değerlendirilmesi ve teverruk yöntemlerinden bireysel teverrukun vergilendirilmesi analiz edilecektir. Bu tespit, değerlendirme ve analizler doğrultusunda bireysel teverrukun vergilendirilmesine yönelik öneriler sunulacaktır.

İslami Finans, Teverruk, Bireysel Teverruk, Türk Vergi Sistemi.

INTRODUCTION

The impetus of development is an investment. Investment is an economic activity realized by providing financing for development. Classical indebtedness-based financing methods are criticized both in terms of cost and the risks they carry since they are not based on any asset. For this reason, financing methods that are not based on assets should be seen as the main trigger of economic crises. Asset-based Islamic financing methods, therefore, attract attention. This situation is expressed in the 10th article of the final declaration of the G-20 Summit held in Antalya in 2015. According to the declaration, decisions have been made to “encourage more use of asset-based (Islamic) financial instruments in financing investments by member states”. Decisions in the same direction continued in the following years, and in 2017, the Early Warning Systems and Global Liquidity Indicator unit was established within the body of the IMF to complement the work of the Islamic Financial Services Board. One of the duties of this unit is to identify the weak points of asset management. In 2018, the unit stated that financial instruments such as shadow banking and virtual assets, crypto assets, that do not rely on a tangible asset, will pose a threat to global asset management, especially in terms of new types of conventional financial instruments. These data reveal the necessity of producing financial solutions based on assets. The reason is to ensure economic stability on a worldwide scale.

This study aims to explain the structure of the individual tawarruq method, which is one of the financial methods based on assets, which has a special feature in terms of taxation and requires an exemption from tax since it fuels the economy via investment. To realize the aim pursued in the study, the inductive method will be followed.

Asset-based Islamic finance instruments include various instruments such as Islamic banking, suquq (Islamic bonds), takaful (Islamic insurance). In this study, after explaining the legal nature of individual tawarruq, which is a type of tawarruq, in other words, “reverse murabaha”, which is one of the financial solutions based on assets, suggestions for taxation will be produced in the light of these explanations.

I. LEGAL NATURE OF TAWARRUQ

Mecelle-i Ahkam-i Adliye (Mecelle), which was prepared based on Islamic law, was applied as the civil law of the Ottoman Empire for many years. Although the Mecelle was abolished with the establishment of the Turkish Republic, it can be stated that the laws put in its place do not completely replace the Mecelle. It still has some areas of application in the legal practice derived from the unwritten law. One of them is the tawarruq method, which is widely used among the people in Turkey. In this method, for example, a person who has no money but urgently needs cash until the harvest time buys a commodity with a cash price of 100 Turkish Liras at a forward price (to pay at the harvest) for 150 Turkish Liras, then sells it to another person, rather than the person he got the money, at a cash price of 100 Turkish Liras to meet his urgent cash needs. This method, also called traditional tawarruq, is the basic form of tawarruq¹ .

The legal basis of this legal form comes from Mecelle, which is expressed in the 32nd article of the code. According to this provision, “whether the need is general or specific, it shall be degraded to meet the extent of necessity”. In the interpretation (comment) of the article, it is said that “When the debt of the people of Bukhara increased, this procedure (tawarruq) became effective upon the need”² .

In this section, the concept and types of tawarruq and its advantageous and disadvantageous aspects will be expressed.

Tawarruq is a word derived from the Arabic root ‘veraka’. Veraka means charity, goods, silver, and money. Tawarruq, on the other hand, is the infinitive form of this word and it means to get paid, to obtain cash, or to demand cash³ . One of the main tools of Islamic (usury-free) finance is tawarruq. Tawarruq is the opposite of a legal transaction called murabaha, which is a kind of loan (karz) contract⁴ . Murabaha transaction is the activity of obtaining financing by purchasing an asset from a person (X) by paying advance and selling it to a person (Y) on a deferred basis. In other words, the concept of murabaha refers to forward sale transaction of a good or raw material, which includes making the payment directly to the seller by adding a certain profit margin, by agreement between the buyer and the seller⁵ . It is the sale of a commodity purchased on credit to the person (Y) in cash to meet the financing need⁶ .

In other words, tawarruq is the purchase of a commodity on deferred payment to obtain cash and sell it in cash to another person other than the seller of that commodity at a lower price⁷ .

The aim of the first customer in the tawarruq transaction is not to use the goods purchased on credit or to benefit from the goods themselves or their yield, but to satisfy their cash needs by selling them. As a rule, there are three parties in the tawarruq transaction. These are the first seller, the customer (also the second seller), and the second customer.