1. Introduction
The question of whether an attorney who continues to work as registered to Social Security Institution is still under obligation to register as taxpayer on his/her own behalf in order to be able to act as a mediator is one of the most debated issues in recent times.On the other hand, there are doubts as to whether it is possible for the lawyer employed by another taxpayer lawyer to issue a self-employment receipt on behalf of the taxpayer lawyer.
Before addressing all these issues, it is necessary to clarify whether mediation is a self-employment activity. Let us examine the issue within the framework of various laws.
2. In Terms of Law on Mediation in Civil Disputes
Article 2 of the Law provides that;
(1) In the implementation of this Law;
a) Mediator: Defines a real person who is engaged in mediation activity and has been registered in the record of mediators issued by the Ministry,
b) Mediation; is the method of dispute resolution bringing the parties together in order to discuss and negotiate by applying systematic techniques, which establishes the communication process between them in order to ensure that they understand each other and thus produce their own solutions and run on voluntary basis with the participation of an independent and impartial third party who is educated as an expert in this field.
Article 7 provides that;
(1) The mediator is entitled to demand fees and expenses in return for the activity. The mediator may also request an advance for fees and expenses,
Article 9 provides that;
(1) Mediator carries out his/her duty diligently, impartially and in person,
In line with the above provisions, in the face of the fact that the mediation activity should be carried out in person, there is no service agreement between the mediators and the Ministry, the fees can be paid directly to the mediator by the parties, and the Mediation Department does not keep any records regarding these fee payments it should not be taxed as a 'wage' since it is understood that the income received does not bear all the elements of the wage.
On the other hand, since the mediation activity is carried out under personal responsibility on its own name and account and is based on expertise, this activity is considered as ‘self-employment activity’ and the self-employment income obtained by establishing self-employment income taxpayer status, the income must be declared with annual declaration.
3. In Terms of Value Added Tax
According to Article 1/1 of the Value Added Tax Law No. 3065;
'Delivery and services made in the framework of commercial, industrial, agricultural, and freelance activities is subject to value added tax in Turkey '
In the second paragraph of the same article it was provided that, the scope, quality and continuity of these activities shall be determined in accordance with the provisions of the Income Tax Law and in cases where there is no clarity in the Income Tax Law, in accordance with the provisions of the Turkish Commercial Code and other relevant legislation.In the third paragraph it is provided that, performing these activities on the necessity of the law or the official authorities, the legal status and personalities of those who are performing such activities, whether they have Turkish nationality, whether the place of residence, workplace of the registered office or place of business are in Turkey will not change the nature of the situation and not constitute an obstacle to be subject to taxation.
In this direction; Mediation service, which is rendered customarily under the Law on Mediation in Civil Disputes No. 6325, will also be subject to VAT within the scope of self-employment.
4. In Terms of Tax Procedure Law
Pursuant to Article 210 of the Tax Procedure Law No. 213;
‘Self-employed persons shall keep a self-employment revenue record.
In Article 236 it is provided that;
‘For all kinds of collections related to professional activities of self-employed people, it is obligatory to issue two copies of self-employment receipts and to give one copy to the customer and the customer must request and receive the receipt.
As a result; In accordance with the above-mentioned provisions of the Tax Procedure Law, those who perform mediation activities, which are considered as self-employment activities, are required to keep self-employment revenue records and to issue self-employment receipts for all kinds of professional activities.
As can be understood from all these explanations; In order to engage in mediation and therefore to issue a self-employment receipt, you must have a ‘taxpayer registration of mediation’. Lawyers who have only a taxpayer registration for attorney activity should also inform the relevant tax office when they start acting as mediator.
In this way, if the mediation activity is carried out besides the advocacy activity, it may be possible to use the book and the self-employment receipt certified for the attorney activity also for the mediation activity.
In addition, if the mediation activity is carried out by establishing a common partnership, it is necessary to use the self-employment receipt to be printed on behalf of the partnership and the self-employment book to be certified on behalf of the partnership for all kinds of professional activity collections.
5. It is contrary to the tax procedure law to issue a self-employment receipt on behalf of the taxpayer lawyer
It is inconvenient for the SSI lawyer to issue a self-employment voucher on behalf of the lawyer who is a taxpayer.
According to the above mentioned provision of the Tax Procedure Law;
‘The document, which is based on a real treatment or situation, which unreasonably reflects this treatment or situation in terms of its nature or amount, is misleading in terms of its content’.
Whoever carries out the mediation activity he/she must issue the self-employment receipt.The certificate issued will not be a real document if the activity was carried out by an employed lawyer with SSI and he/she edits the self-employment receipt in the name of the taxpayer lawyer he/she works with. It will be a false and misleading document.
This situation is also inconvenient in terms of taxation of the gained income.This is because issuing a self-employment voucher by your attorney for your mediation activity will increase his tax bracket and will result in higher taxes on his earnings.