The transfer of assets is described as the transfer of the ownership of a property from one legal party to the other. While the matter of asset transfer is not specifically regulated under the Turkish Legal System, various laws contain provisions directly or indirectly pertaining to this matter. Among the provisions pertaining to asset transfers are the Articles 202 and 203 of the Turkish Code of Obligations no. 6098 related to transfers of assets and operating rights, and the Articles 134 to 158 of the Turkish Commercial Code no. 6102, which are related to mergers.
As per the Article 202 of the Code of Obligations; “the transferee who takes over an asset or an enterprise with the assets and liabilities thereof shall be liable against the creditors for the debts of the asset and the enterprise, starting as of the date when the transferee notified such transfer to the creditors or when the same is announced by way of promulgation in the Trade Registry Gazette for the commercial enterprises, and for others, in any one of the newspapers with circulation across Turkey. Nevertheless, the previous debtor shall remain liable as a joint debtor together with the transferee for a period of two years. The said period shall start lapsing as of the date of notification or announcement for the debts due, and for the debts to be due later, as of the date when such debts fall due. The consequences of assuming the debts in this way are identical to the consequences arising from an external assumption agreement. Unless the obligation to notify or disclose by way of announcement is fulfilled by the transferee, the two-year period provided for under the second paragraph shall not start lapsing.” Likewise, as per Article 203 of the same law; “If an enterprise is merged with another enterprise by mutual takeover of the assets and liabilities or by the participation of one in the other, the creditors of both enterprises shall have the rights arising from the transfer of an asset, and may receive and collect all liabilities from the new enterprise.” The transfer of an enterprise is specifically re-regulated under the Article 11 of the Turkish Commercial Code, the scope and form of transfer in the case of transfer of enterprise is regulated under a provision, and the mergers are specifically regulated under the Articles 134-158.
In order to derive desired results from an M&A type of activity, first of all, it is necessary that the Commercial Code, Code of Obligations and, specifically, the provisions of the legislation governing the companies to ensure the merger be reviewed.
Pursuant to the aforementioned articles, when a legal person takes over an enterprise (company) together with the assets and liabilities thereof, such legal person shall also be responsible for the liabilities and receivables of such company. As deduced from the Articles 202 and 203 of the Turkish Code of Obligations, the transferor and the transferee shall be jointly liable for the payment of debts for a period of two years as of the notification to the creditors or announcement.
The relationship between the transferor and the transferee shall be subject to the agreement made for the transfer of assets and liabilities of an enterprise. However, as per the Article 7 of the Law No. 4054 on the Protection of Competition, mergers and transfers of a nature that would create a dominant situation or strengthen an existing dominant situation in a specific sector have been prohibited and transfers over a certain value, that would fall into this category have been bound by permission by the Competition Authority. The legal approval of the transfer must be announced by such means of communication as provided for under the legislation.
The asset transfer are taxable since the transfer may be deemed to be the income of the selling/transferring company, therefore a corporate tax liability shall arise. Asset transfer is generally subject to VAT based on the sales value of the assets. Although the VAT rate varies for different assets (1%, 8% and 18%), the general rate for VAT is 18%. VAT liability may be reduced by various methods, such as investment incentive certificates.
Key articles respecting the asset transfer:
a) Turkish Code of Obligations: Article 202 and Article 203
b) Turkish Commercial Code: Articles 134-158
c) Execution and Bankruptcy Law: Article 280
d) Law on the Procedures for the Collection of Public Receivables: Article 30
e) Law on Competition: Article 7