Share transfers and the share register in limited liability companies in accordance to Turkish law

In limited liability companies, all the shareholders’ shares in the capital are an indivisible whole and each shareholder’s amount of capital constitutes his share. These companies may issue their shareholders certificates showing all their shareholding. However, certificates issued for the shares must belong to the entire share in the capital.

In addition, such certificates are not negotiable instruments, but serve only as a proof.

Subject to the Turkish Commercial Code (the "TCC"), the division of a share can be possible only for the division of an estate or on condition that the articles of association of the company have no provision to the contrary.

The division of the share for a subsequent transfer is important in particular when a part of the share is to be transferred. In fact, the transfer of the whole share is possible at any time even if the articles of association have a provision preventing the division of the share for a subsequent transfer. Furthermore, in practice, the article "Capital" in the articles of association of any limited liability company is laid down in a manner suitable for a division for this purpose and even showing what nominal value will be attributed to each share in such division.

Each limited liability company is required to keep a share register showing the shares therein. The names and share amounts of the shareholders, any payments made (for the shares), the transfer and transmission of the shares and other related changes are entered in such register.

In addition, a list signed by managers showing the name of, the amount of capital subscribed to by, and the related amount paid on account by, each shareholder must be filed to the trade registrar in January of each calendar year. If no change has occurred after the filing of the last list, no further list must be filed. In such a case, the filing in January of a petition stating that no change has occurred is sufficient.

The director(s) of company is/are personally or jointly and severally liable for any losses resulting from the share register and lists being kept/issued incorrectly or incompletely or from the filing of incorrectly information.

The share register is not among books to be certified each year. It is used until its pages run out following the opening certification. The opening certification of a second register is however required after all the pages of the register are used.

In a limited liability company, a share transfer can be made through a transfer agreement in writing. The notarization of the signatures on the transfer agreement is another requirement. The transfer may not be valid unless such formal prerequisites are complied with. In order for the transfer agreement to operate against the company, it must have also been notified to the company, the general assembly of shareholders must have given its consent to the transfer and then the transfer must have been entered in the share register.

In order for the transfer to be entered in the share register, at the general assembly of shareholders meeting, at least three-fourths of the shareholders must consent to the transfer and such shareholders must own at least 3/4 of the share capital. Until the shareholders give their consents and/or if the shareholders reject to give their consents, the transferee of the share may not become a shareholder vis-à-vis the company. The capacity to act as a shareholder may only be received upon registration in the share register.

In a limited liability company, the transfer of any part or all of a share to a third party or another shareholder requires no articles of association amendment. However the general assembly of shareholders resolution approving the share transfer and showing the new shareholding of the shareholders must be registered in the trade registry. The announcement of such registered matters is of importance for giving third parties notice of the transfer.

The resolution quorums to be required at the general assembly of shareholders meeting held for the share transfer may be made stricter by the articles of association or the articles of association may make a share transfer subject to some conditions. By way of example, the articles of association of a limited liability company, engaging in engineering activities as its line of business, may provide for a restriction that the shares may only be transferred to engineers. The only restriction the TCC has in this respect relates to any shareholders having contributed in-kind capital, and thus such shareholders are not allowed to transfer their shares within three years following the formation of the company.

Subject to the Turkish Income Tax Act, profits gained on the transfer of limited liability company shares are taxed as revaluation earnings. For purposes of such taxation, the period of time, in which the transferror has held such shares, is of no importance.

The said period of time is a matter considered only when any share (certificate) or temporary share certificate of a joint stock company is transferred.

Moreover, the transfer date value of the share must be found through a valuation procedure before the share of the company is transferred. In fact, in practice, transfers are made at such values as acquisition or nominal for purposes of evading both Income Taxes and notarial fees. This could create troubles for the transferor before the tax administration in future.

Account should therefore be taken not only of the TCC provisions, but also of the applicable provisions of the tax legislation, in transferring the share(s) of any limited liability company.

SOURCE: MARMARA ÜNİVERSİTESİ İİBF ÖĞRETİM ÜYESİ

A.B. DOĞRUSÖZ YAKLAŞIM / 1998

Turkije: Bewoningsvergunning

Datum: 29.07.2008

Op 16 juli 2008 verscheen in de Hurriyet, één van de grootste dagbladen in Turkije, een verslag van de Turkse Algemene Rekenkamer. Hierin werd gemeld dat in Istanbul 70%, in Ankara 30% - 40% en in Izmir 60% clandestien is gebouwd.

Uit de toelichting blijkt dat weliswaar bouwvergunningen (Iskan) waren verstrekt, maar geen bewoningsvergunningen.

In Turkije vindt na de bouw, door de Afdeling Bouw- en Woningtoezicht van de Gemeente die de bouwvergunningen heeft verstrekt, controle plaats, waarvan een rapport wordt afgegeven. Hierin staat vermeld of de bouw conform de bouwvergunning/voorschriften heeft plaatsgehad.

Tevens dient de aannemer stukken te overleggen waaruit blijkt dat de premies van de sociale verzekeringen, alsmede de belastingafdracht voor de bouwvakkers voldaan zijn. Pas hierna wordt een bewoningsvergunning afgegeven.

In het rapport wordt een voorbeeld gegeven van de Gemeente Arnavutköy in het Arrondissement Istanbul, waar 665 bouwvergunningen waren verstrekt en vervolgens slechts één bewoningsvergunning.

Indien men geen bewoningsvergunning heeft en de woonruimte toch heeft betrokken, dan blijft men de zogenaamde bouw-elektriciteit, gas en water betalen, hetgeen aanzienlijk duurder is dan een reguliere aansluiting.