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In accordance with Article 153/5 of the Constitution, the Constitutional
Court’s decisions are non-retroactive. But it might be possible that the
strict implementation of this rule would cause some contrarieties to justice
and reason. Because of this fact, an opinion in doctrine and in some of the
Supreme Court decisions defend that some of the court decisions may have
retroactive effect.
For example, in the cases which have not been the subjects of
constitutional challenges, there is no consensus about the enforcement of
the Constitutional Court’s decision about cancellation. According to the
general opinion, the Constitutional Court’s decision about cancellation
should be enforced and must be retroactive for the pending cases.
The Council of State is also of this opinion according to their
settled decisions. For instance, a decision of the Court states that; “If
the Constitutional Court’s decision about cancellation of a part or total
of law or executive order is known, it is contrary to the “Supremacy
of the Constitution Rule” and “Rule of Law” to bring the cancelled or
unconstitutional law into the action.”
Consequently, in case the tax payers who could not benefit from the
investment allowance because of the law amendment file a suit (or be able
to file a suit) in Tax Court or with the Council of State, with the reserve
that the Constitutional Court’s decision must be taken into consideration,
the tax payers should be able to sue for reimbursement of the over-paid tax
payments.
It could also be argued that the retroactivity of the Constitutional
Court’s decision about cancellation could be a punishment or result in an
inequality for the tax payers who did not sue for reimbursement of their
over-paid tax payments because they did not want to start a lawsuit against
the Government.
If the Council of State’s settled opinion in this respect is considered,
the tax payers who did not file a lawsuit cannot recover their excess tax
payments because of not benefiting from the investment allowance. In this
respect, the best resolution that could be offered to those tax payers is
using the set off or tax refund proceedings.