27 COMMERCIAL LAW companies (“Circular”), considers it as a capital contribution in kind, when the shareholder brings her receivable from the company as capital to the company. In the Circular, it is stated that if the shareholder “brings” her receivable from the company for the purpose of capital contribution in the capital increase of the company, the actual value thereof may be determined by a valuation report from a certified public accountant or an independent financial advisor, apart from the valuation report of the expert to be appointed in accordance with Article 343 of the TCC. The Circular has been criticized thoroughly by many authors, and the dominant is that the capital contribution is cash capital when the shareholder performs her debt to the company through a set-off against her cash receivable.10 The main argument for the dominant view focuses on the fact that set-off is a concept related to the performance or payment method, not the nature of capital or commitment. Tolga Ayoğlu explains the economic function of set-off as preventing unnecessary transactions, and emphasizes this function through the following scenario: it is possible for the shareholder to pay the same amount to the company in cash in exchange for capital debt, immediately after collecting the due cash receivable from the company.11 Arıcı also criticizes the Circular and states that the legal difference between the set-off notice addressed to the company and the assignment of a receivable to the company was not envisioned in the Circular and that the conclusion in the Circular was inconsistent with its justification.12 Another writer, Tekinalp, agrees to the capital in kind characterization of the Circular. However, he considers the performance of the capital contribution through set-off to be a cash capital contribution and, criticized the Circular for allowing reports by certified public accountants or independent accountants contrary to the clear wording of Article 343 of the TCC. He opines that due to the explicit provision of the TCC, valuation reports on capital contri10 Manavgat (Kırca/Şehirali Çelik): Anonim Şirketler Hukuku, Volume 1, Banka ve Ticaret Hukuku Araştırma Enstitüsü, 2013, p. 345; Arıcı, p. 327-328; Ayoğlu, Tolga. “Sermaye Avansı Kavramı Üzerine Düşünceler”, Prof. Dr. Hamdi Yasaman’a Armağan, On İki Levha Yayıncılık, 2017, p. 45. 11 Ayoğlu, p. 46. 12 Arıcı, fn. 44.
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