Fake invoice organizations, which constitute one of the crucial problems of economic criminal law, use different methods to disable tax auditing. These methods are considered deceit in judicial practices, and the perpetrators who issue or purchase and use fake invoices, are prosecuted for fraud against public institutions besides the offense of producing and using fake documents within the scope of the Article 359/b of Tax Procedure Law and the defendants convicted on both charges according to the principle of joinder of the offenses. In this study examined wheather the the elements of the crime which regulated under the article 158/1-e of Turkish Criminal Code is fulfilled beside the Article 359/b of Tax Procedure Law especially in cases where the methods mentioned above are used, and then the problem of concurrence of offences is discussed.
fake invoice tax evasion fraud against public institutions concurrence of offences
Introduction and Research Purpose
False invoice organizations use various accounting methods to conceal their tax evasion activities. It is clear that issuing or purchasing and using false invoices constitutes the crime regulated in Article 359/b of the Tax Procedure Law (VUK). However courts accept that the accounting methods applied by false invoice organizations constitute the deceit element of the crime of fraud as well. This in turn causes the perpetrators of these conducts to be convicted of both the offence defined in Article 359/b of VUK and the offence of qualified fraud that is commited against public institutions.
This practice of the courts gives rise to several questions about how false invoice organisations must be approached in terms of criminal law. Primarily, it must be addressed whether applying accounting methods that are carried out with the purpose of concealing false invoice schemes and cause loss of tax constitute the crime of fraud or not. This requires a brief analysis and comparison of the elements of the two crimes mentioned above. If it is concluded that such activities do indeed constitute the crime of qualified fraud, then it must also be explained how the rules of aggregation of offences will be applied in such situations. It must be noted that Article 212 of the Turkish Penal Code (TCK), which states that in case forged documents are used to commit a different crime then the perpetrator will be punished of both forgery and the relevant crime, also contributes to the complexity of the latter question.
Literature Review
There are numerous studies focused on the crimes of fraud and forgery or on tax evasion. However, the relation between the crime regulated in VUK, Article 359/b and the crime of qualified fraud that is commited against public institutions has not been thoroughly examined yet. Therefore, analysing whether the accounting methods concerned with the concealment of false invoice activities constitute the crime of fraud or not, and if it does so how the issue of aggregation of crimes will be solved remains as an important topic in criminal law that needs to be clarified.
Methodology
This study can be characterized as a critical research paper. The reason for this is that, the paper’s structure is essentially established in a manner that allows a proper analysis and criticism of the court practices related to false invoice organizations. This structure has been taken as a reference point and the questions mentioned above have been researched and discussed accordingly.
Findings and Conclusion
As a result of this study, multiple findings have been reached. Firstly, accounting methods that conceal the use of false invoices, and these methods causing tax losses fulfill the “deceit” and “loss” elements of the crime of fraud respectively. Under the condition that the use of false invoices and the concealment of such activities have resulted with tax loss, the elements of both fraud and the offence regulated in VUK, Article 359/b will have occured. However, it is not accurate to argue that there are two separate punishable conducts solely because certain accounting methods have been used after the use of false invoices.
Also since both of these crimes violate the public’s financial interests they do not violate separate legal interests. Therefore, punishing the perpetrator for both of the crimes separately would violate the rule that forbids considering the same unjustness twice when setting the punishment. Although it is possible that both crimes are committed during the processes mentioned above, the perpetrator should not be convicted of fraud and Article 359/b of VUK separately.
Article 212 of TCK can not be a basis for this practice either. Even though TCK, Art. 212 states that using forged documents to commit a different crime will result with two separate punishments, the article does not apply for VUK, Art. 359/b. TCK, Art. 212 only applies to crimes regulated in TCK. Therefore even if VUK, Art. 359/b is accepted as a specific version of the forgery crimes in TCK, the article mentioned can not be seen as a basis to punish the perpetrator for both qualified fraud and VUK, Art. 359/b.
In such situations, since there are not two separate crimes that violate two different legal interests, the principle of conceptual aggregation can not be applied either. This means the aggregation issue must be solved by the principles of ostensible aggregation.
Compared to the norms in TCK, the tax evasion offence in VUK protects a more specific legal interest and for that reason the norm in VUK must be accepted as a specific norm. Secondly, the accounting methods that are analysed in this article are applied only after the false invoices are issued, purchased or used. These methods are used only to assure that the tax loss actually occurs and do not cause a separate harm than the one caused by the initial conduct. Therefore, the mentioned accounting methods must be accepted as subsequent conducts that do not require punishment. It is accepted that when the violation of the first norm covers the unjustness that arises from the violation of the second norm, the conduct that violates the second norm must not be punished. Therefore the perpetrator must be convicted only of the crime regulated in VUK, Art. 359/b.
