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Hüseyin Cahit SOYSAL
Board Member
The "Law Law on the Collection Procedure of Public Receivables and the Amendment of Certain Laws," numbered 7316, entered into force after being published in the Official Gazette dated 22 April 2021.
The law, which is an "Omnibus Law," mainly concerns" restructuring the agricultural loan debts of farmers negatively affected by the COVID-19 epidemic to Agricultural Credit Cooperatives, covering the SSI premiums of employees in workplaces operating in the food and beverage service sector for April and May from the Unemployment Fund, and providing support for those who are on unpaid leave. It includes provisions such as payment of 1,500 TL.
This article will discuss the changes made in Law No. 6183.
The additional statement made to Article 85 of Law No. 6183 states that tenders can also be made electronically. In addition, "goods whose preservation is dangerous or costly" has been added to the provision regarding the sale of goods that cannot be preserved due to deterioration, decay, and similar reasons by bargaining or in the relevant exchange.
The new paragraph added to the same article, "From those who will participate in the auction, 5% of the value of the movable property is taken as collateral. Creditor public administrations are authorized to determine the situations in which collateral will not be taken, based on the type or value of the movable property and the method of sale, and to decide on the receipt of a letter of guarantee instead of money. In this way, unnecessary busyness of the auction tender was prevented, and this guarantee was also provided in the form of a bank letter. Undoubtedly, the basis for requiring guarantees is the possibility that the number of people or businesses participating in electronic tenders will increase significantly.
Article 86 of the law, titled "Customer giving up on purchasing the goods," has been rearranged as follows:
"If the customer gives up buying the goods or does not pay the total price within the given period, the goods are auctioned for the second time, and the tender is awarded to the highest bidder. From the person to whom the goods are tendered for the first time, interest at the rate of the difference between the two tenders and other damages and the deferment interest calculated on the difference, or if the tender cannot be made due to no bidder in the second auction, interest at the rate of the first tender price and other damages and the deferred interest to be calculated on the first tender price, also After the deduction from the guarantee is made without the need for a judgment, the balance is collected by the provisions of this Law and the property is handed over to him, after deducting all expenses incurred by the administration for that property.
If the tender cannot be held due to no bidders in the first auction, or if the person to whom the goods were tendered in the first auction gives up buying the goods or does not pay the total price within the given period in the second auction, if the person to whom the goods were tendered gives up buying the goods or does not pay the total price within the given time, this person is asked for the second auction. After the tender price and other damages and the interest at the rate of the deferred interest calculated on the second tender price are deducted from the guarantee without needing a separate judgment, the balance is collected by the provisions of this Law. The property is handed over to him by deducting all expenses incurred by the administration for that property.
"Unless the price of the goods can be collected from the person to whom the tender was made, the principal debtor continues to be the debtor."
When one reads the provisions of Article 86, one inevitably asks oneself: "It is not clear whether the state wants to dispose of this property or to beat up people who attempt to purchase the property in good faith." There are a hundred thousand kinds of situations in the commercial world. Why is the person who entered the tender charged "interest at the rate of the difference between the two tenders and other damages and the deferred interest calculated on the difference" just because he entered the tender of the collection office but did not fulfill his obligation to pay the price of the goods he undertook? Is the aim to eat grapes or to beat the vinedresser? One cannot help but wonder if, instead of doing this, a less frightening provision such as "1 percent of the tender price will be collected from the guarantee given" could not have been written.
The Law states, "Real estates are sold at auction by sales commissions. The sales commission consists of a person elected by the municipal council from among its members, under the chairmanship of the chief property officer in the provinces and districts, or the person to be delegated by it, a competent officer of the creditor public administration, and the land registry keeper of the place where the real estate is located, or the person to be delegated by it. Article 90, which is unsuitable for administrative structuring, states, "Real estates are sold by auction, physically or electronically, by sales commissions. The creditor public administrations determine the composition of the sales commission. The Ministry of Treasury and Finance is authorized to determine the working procedures and principles of the Commission. Thus, legal infrastructure has been created to establish auction commissions in the electronic environment.
The first paragraph of the 97th article of the Law titled "collection of the real estate sales price" has not changed and includes the following provisions: "If the person to whom the real estate is tendered does not pay the money immediately or within the given period, the tender decision is terminated, and the real estate is immediately put up for auction for seven days by the sales commission. "There is no need to notify those interested in this auction; it is sufficient only by announcement, and the tender is awarded to the person who bids the most."
The second paragraph of the same article contained the following provisions: "The person to whom a tender is made for the first time is responsible for the difference between the two tenders and other damages. After the tender difference and the interest of the past days are deducted from the guarantee without needing a separate judgment, the collection office collects the balance. Interest is calculated at 5%. "The department issues a document to the public debtor whose property is sold to collect the amount of the difference exceeding the public receivable from the person responsible for it."
With the amendment, the paragraph and the newly added third paragraph are regulated as follows: "The person who causes the termination of the tender by not paying the total tender price is responsible for the difference between the price he bid and the next tender price, other damages and interest at the rate of the deferred interest to be calculated on the difference. After this amount is deducted from the guarantee, the collection office collects the balance without needing a separate judgment. The department issues a document to the public debtor whose property is sold to collect the amount of the difference exceeding the public receivable from the person responsible.
With this article, after the necessary deduction is made from the guarantee received from the persons liable within the scope of Article 86, the remaining guarantee amount is recorded as income."
Thus, the maxim "whoever gives his hand to the state loses his arm" is embodied more strongly in the Law!
We would not say anything wrong if we said, "With the addition of Article 97/A, the most important change in the Law has been made." The article titled "Sale of movable and immovable property in electronic environment" is regulated as follows:
"Movable and immovable properties can be sold electronically by auction under the provisions of this Law.
The auction is held by bidding on the day and time specified in the announcement. In any case, a sales announcement is made for movable properties to be sold electronically. Suppose there is a difference between the advertisement made in different media regarding the sale and the advertisement texts made electronically. In that case, the electronic advertisement shall be taken as a basis. The auction result for the goods offered for sale electronically is announced electronically on the first business day following. Movable assets that cannot be sold electronically can be sold physically or electronically through negotiation by the provisions of this Law.
"The Ministry of Treasury and Finance is authorized to receive offers before the auction date, to determine the minimum increase price in the offers, the bidding periods, the type of guarantee to be received, the issues to be included in the announcement stating the result of the auction, and other procedures and principles regarding the sale to be made electronically."
Thus, it is possible to sell goods that have become liquidated at customs via electronic tender. Since it is stated in Article 3 of the Law that "the term creditor public administration refers to the state, provincial special administrations and municipalities,... The term collection office refers to the department, service, officer or officers of the creditor public administration responsible for implementing this Law...", TASİŞ (Commerce). The legal infrastructure has been created for the Ministry of Risk Management, Liquidation, and Revolving Fund General Directorate to sell goods subject to liquidation at customs through electronic tender.
Although the authority to determine the procedures and principles regarding electronic sales has been given to the Ministry of Treasury and Finance by Article 97/A, we do not want to lose our belief that this Ministry will not make any regulation that will interfere with the duties of other ministries. Because the more representatives of different ministries there are in a commission, the more cumbersome the commission becomes, and the workflow slows down.
The COVID-19 pandemic has significantly reshaped business processes. The realization that many activities such as meetings, open sessions, shopping, etc. can be carried out electronically with less expense and a more effective registration system has prompted the state to adapt to this change.
The amendments made to Law No. 6183 have brought significant benefits. Businesses that previously had to go to 3-5 tender halls or send teams in Turkey to purchase an item that has become liquidated at customs can now enter these tenders and make bids through their employees who do not leave their desks. This convenience will undoubtedly lead to tenders being held in a more transparent, more participatory and more competitive environment.
