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rent shareholders of the company should automatically acquire the
newly issued gratis shares pro-rata to their shareholding in the share
capital of the company. The right to acquire gratis shares cannot be
overruled, restricted or waived.
The secondary legislation with respect to the funds which are per-
mitted to be added to the share capital has not yet been set forth as per
the NTCC. Considering the secondary legislation under the Turkish
Commercial Code numbered 6762, there is an Internal Trade
Communiqué on Incorporation and Amendment of Articles of
Associations of Joint Stock and Limited Liability Companies num-
bered 2003/3 which was announced in the Official Gazette dated 25
July 2003 by the Ministry of Industry and Trade (“Communiqué nr.
2003/3”). When this Communiqué nr. 2003/3 is reviewed, it is seen
that Annex 2 of this Communiqué nr. 2003/3 sets forth the documents
requested for the registration of the capital increase and within these
documents, the ways of capital increase by utilizing internal sources is
listed as “inclusion of share certificates, addition of value increase
funds, value increase funds of affiliates, cost increase funds, profits
from sales of affiliate shares or immovable properties”.
The legal doctrine suggests that with respect to the funds permit-
ted to be added to the share capital, article 462 of the NTCC provides
merits to the tax rules set forth by the Tax Procedure Law numbered
213 (“TPL”) under articles 298, reiterated article 298 and provisional
article 25 on inflation accounting
1
. Therefore, those articles of TPL
shall be evaluated in that regard.
Tax Procedure Law Provisions on Re-assessments and
Secondary Legislation
The provisions of the TPL regarding the recordation of value
increases to the balance sheet or addition to the share capital as a result
of a re-assessment have been eliminated with reiterated article 298
which is entered into force with the “Law regarding the Amendments
on Tax Procedure Law, Income Tax Law and Corporate Tax Law”
28
NEWSLETTER 2012
1
Pulaşlı, Hasan
; Yeni Şirketler Hukuk Genel Esaslar, Adalet Yayınevi, Ankara 2012, 1. Edition,
p. 859.