Birleşme ve Devralmalar Hukuku

PROCEDURES FOR FOREIGNERS TO ESTABLISH A COMPANY IN TURKEY

Foreigners can establish companies in Turkey. Regarding foreign investors, Turkey has a Foreign Direct Investment Law No. 4875. This law generally adopts the principles of freedom of investment, equal treatment and encouragement of foreign investors. Some guarantees are even given to foreign investors.

It should be noted that the company establishment and commercial activities of foreigners are subject to the provisions of the Turkish Commercial Code No. 6102 and the Turkish Code of Obligations No. 6098 after the Law No. 4875. Apart from this, there is also a regulation on the implementation of Law No. 4875. Finally, we should also mention the Law No. 4817 on Work Permits of Foreigners.

Companies that will do business in the following areas must obtain prior approval from the ministry before being established and determining their articles of association:

(MINISTRY OF LABOUR AND SOCIAL SECURITY)

– Insurance companies

– Joint stock companies established as holdings

– Companies operating a foreign exchange office

– Banks

– Financial leasing companies

– Factoring companies

– Consumer finance and card services companies

– Independent audit companies

– Surveillance companies

– Technology development zone management companies

– Companies establishing and operating the Free Trade Zone

– Asset management companies

– Companies dealing with general warehousing

– Companies engaged in licensed warehousing of agricultural products

– Commodity exchange companies

WHICH COMPANIES CAN FOREIGNERS ESTABLISH IN TURKEY?

Law No. 4875 is based on the principle of equality and allows foreigners to establish any type of company in Turkey that can be established by Turks. Under the former Law, foreigners were only allowed to establish joint stock companies and limited liability companies.

In practice, it is most appropriate to open a capital company.

PROCEDURES TO BE FOLLOWED BY FOREIGNERS IN ESTABLISHING A COMPANY:

Before the official application procedures, preliminary preparations should be made for the establishment of a company by foreigners. The type of company should be determined, the articles of association/company constitution should be prepared depending on what the activity will be, and physical needs should be met.

  • STAGES OF FOREIGNERS’ COMPANY ESTABLISHMENT:
  • The most basic stages in the establishment of a foreign company
  • Meeting with the client and preparation of the articles of association of the company in accordance with the procedure
  • Sending records and articles of association via MERSIS:
  • Commercial companies are registered in the trade registry. Trade registry procedures are now carried out online through MERSIS (Central Registry Registration System). The company established by foreigners is given a number through this system. With the system, establishment procedures can be done online. However, of course, it is not possible to carry out all transactions online. The first thing to be done in this process will be to send the records of the establishment of the company and the articles of association prepared for the company to the Trade Registry through the system.
  • Preparation and notarisation of the documents

A registry application is made to the relevant Trade Registry Directorate with a group of documents. Documents obtained from Turkey are directly attached to the application file; those obtained from out of Turkey must be apostilled from the relevant country and notarised in Turkey or approved by the Turkish consulate where they are authorised. Foreign language documents must also be translated into Turkish by authorised translators and notarised.

  • Obtaining a potential tax number for the company

The potential tax number is required for non-Turkish citizen partners of the company and non-Turkish citizen members of the board of directors. It is obtained from the relevant tax office. In order to obtain this, a bank account must be registered where the company’s capital will be deposited.(OPENING A BANK ACCOUNT IS IN THE LAST PART OF THIS INFORMATION).

Depositing a certain portion of the capital to the bank account of the Competition Authority

0.04% of the total capital of the Company must be deposited to the account of the Competition Authority by paying from the cash desk of the Trade Registry Office.

Depositing a certain amount of the capital into the company’s bank account and documenting it

At least 25% of the capital promised in the articles of association of the company must be paid during the registration process, and the remaining part must be paid within 2 years after the registration of the company.

The exception to this rule is limited liability companies. In the establishment of a limited liability company by foreigners, it is not required that the capital is initially deposited in the bank account. It is sufficient and necessary to pay the foundation capital within 2 years following the registration of the limited liability company.

  • Application to the Trade Registry Office for registration procedures

After these documents are obtained and the registration phase is completed at the Trade Registry Directorate, the Directorate informs the relevant tax office and the Social Security Organisation that the company has been established. Shortly after this information is given, the tax office should be visited and a tax certificate should be obtained. A social security number must be obtained from the Social Security Organisation. For the employees of the company, it is necessary to apply separately after the company is notified to the Social Security Organisation.

Within 10 days after the registration of the company, the Trade Registry Office announces the establishment of the company in the Trade Registry Gazette.

  • Certification of some legal books related to the Company

The certification of these books is carried out by the employees of the Trade Registry Office during the establishment procedures.

  • Compulsory Books for Company Incorporation of Foreigners:
  1. Journal Book: It is the book in which commercial transactions are recorded item by item in chronological order based on documents.
  • Book of Kebir: It is the book that systematically distributes the transactions recorded in the journal books to the accounts.
  • Accounting Inventory: After the determination and valuation, the results are compared with the accounting records and the accounts are made to express the real situation.

d. Share Book: It is the book showing how the company’s capital is divided into shares and its details.

e.          Board of Directors Meeting Record Book: It is the company book in which the transactions and decisions regarding the meetings of the Board of Directors are kept.

f. General Assembly Meeting Record Book: It is the company book where the transactions and decisions regarding the general assembly meetings are kept.

  • Requesting the company establishment declaration from the tax office

The Trade Registry Office shall notify the relevant tax office and the Social Security Institution of the establishment of the company. Thereupon, the tax officer assigned by the tax office comes to the company headquarters to prepare a determination report. The determination report must be signed by at least two officials of the company.

– Preparation of signature circular

On the date of registration of the company, the signatories of the company must issue a signature circular in the presence of the personnel authorised by the Trade Registry Directorate.

– Transferring some documents related to the company to e-TUYS (Electronic Incentive Application and Foreign Capital System) system

In fact, this is a database on the activities of foreign investors in Turkey. Three documents are filled in and uploaded to this system online; activity information form for foreign direct investments, capital information form for foreign direct investments and share transfer information form for foreign direct investments.

– Other requirements according to the type of company and purpose of activity

Even though it is not included in the basic conditions, processes such as KVKK (Personal Data Protection Law) compliance should also be carried out and implemented at these stages.

  • DOCUMENTS REQUIRED FOR THE ESTABLISHMENT OF A COMPANY WITH FOREIGN CAPITAL
  • Documents Required for the First Application to the Trade Registry Office:
DOCUMENT SPECIFICATIONS
Company contractSigned by all founders in the presence of TSM personnel or Notary Public, one original and four copies in total
Her bir hissedarın pasaport nüshasıPassport copies of each shareholder and If the foreign partner is a real person, two copies must be taken.
Activity certificate on the current status of the company and signatoriesThe legal entity registered as a partner must be organised by the authority in the investor’s country
Decisions of the competent corporate authority showing the approval of legal entity shareholders for incorporationIf there are any special conditions for the establishment of the company (company name, field of activity, etc.), these conditions should be specified in the decisions.
The name of the real person who will act on behalf of the legal entity and the decision containing the assignment.A real person must be appointed as a member of the board of directors  
Notarised copy of the power of attorney authorising proxies to follow up the application in the presence of the authorised TSM and other official authoritiesIf the process is to be followed by proxy, it is necessary
Signature DeclarationsMust be notarised in two copies
Identity card copies of the company directorsMust be notarised in two copies
  • Documents required by the Tax office in the application for obtaining a potential tax number:
DocumentSpecifications
Petition for registration request 
Articles of AssociationMust be the original
Rental agreementShows the registered address of the company
A power of attorney authorising the application to the tax office on behalf of the companyIf the process is to be followed by proxy, it must
  • Documents to be provided for the registration application to the Trade Registry Office:
DocumentSpecifications
Petition for registration request 
Establishment declaration formMust be in 4 copies
Company contractOne original signed by all founders in TSM staff or in notary public, 4 copies in total
Payment document to the Competition Authority0.04% of the company capital
Signature declarations for each person authorised to represent the founders of the companyRequired in limited liability company, must be in two copies
Declaration of establishmentIt must be the original
Chamber of Commerce registration formTwo different forms are required for a natural person partner or a legal entity partner
Written declaration of the non-shareholder members of the board of directors    It must state the acceptance of the task in question
Bank receipt for minimum paid-in capital depositMust be at least 25% of the committed capital
Capital in kind expert report, registry declaration that there are no encumbrances on the immovable, document regarding annotations, written agreements regarding the immovableRequired in case of any capital contribution in kind

COMPANY’S COMPLIANCE WITH THE COMMERCIAL ELECTRONIC MESSAGE REGULATION:

The commercial electronic message management system, i.e. IYS, is the system that enables the receipt of commercial electronic forwarding consent, the exercise of the right to refuse and the management of the complaint processes mentioned below.

All service providers using commercial electronic messages must register with the IYS. It is possible to liken this to the VERBIS registration in the protection of personal data. A positive situation here is that commercial electronic messages cannot be sent to recipients who do not have approval on IYS. In other words, consent must be obtained from the recipients and this consent must be processed in IYS.

ESTABLISHMENT OF A LIAISON OFFICE:

It is the establishment of a liaison office by foreign companies with the permission of the Ministry of Economy and by complying with the necessary legal procedures in order to realise the purposes of promotion, research, etc. other than commercial purposes. Liaison office is the equivalent of “Liasion Office” in English. Liaison offices are authorised for a period of 3 years with an upper limit of 3 years in the first application to be made. Liaison offices wishing to extend their activity period must apply to the General Directorate of Incentive Implementation and Foreign Capital with a request for extension of time before the expiry of the period.

What are the Incentives Provided to Foreign Investors?

Incentives and supports to be provided to foreign investors are regulated by different laws and regulations. Some of these are as follows:

– Decree No. 2012/3305 on State Aids in Investments published in the Official Gazette dated 06.2012 and numbered 28328,

– Communiqué on the Implementation of the Decree No. 2012/1 on State Aids in Investments,

– Decision No. 2016/9495 on Granting Project-Based State Aid for Investments published in the Official Gazette dated 11.2016 and numbered 29900,

– Decision No. 2018/11201 on Supporting Investments under the Attraction Centres Programme,

– Law No. 4691 on Technology Development Zones provides investment incentive system, project-based investment incentive practices, attraction centres and technology development zones practices and incentives and supports provided by these practices, VAT exemption, customs duty exemption, tax reduction and R&D incentives are some of the facilities provided to foreign investors. These incentives and supports will differ according to many criteria.

TAX AND SOCIAL SECURITY AGENCY (SGK) PROCEDURES OF COMPANIES WITH FOREIGN PARTNERS:

The tax office procedures of companies with foreign partners will be exactly the same with Turkish companies. However, in Article 7 of the Tax Offices Transaction Directive titled “Documents to be sought for the commencement of work”, it is stated that “the foreign nationals authorised to represent the company must be provided with a certificate of residence or residence permit or work permit document”.

In addition, after the company is opened, tax procedures and transactions must be carried out within certain periods and on certain dates. Likewise, in companies opened by foreigners, Social Security Institution business processes will be the same as Turkish companies. In this regard, it will be necessary to deal with all kinds of worker entries and exits or other related transactions, not only during the establishment phase.

TAX LIABILITY OF FOREIGNERS:

In Turkey, capital companies are liable to pay corporate income tax (22 per cent). In addition, persons are liable to income tax (progressive rates 15, 22, 35, 40 per cent) on their income and profits for the year. Persons residing in Turkey or companies headquartered in Turkey are taxed on the income from abroad.

In addition, there will be value added tax (VAT-KDV), special consumption tax (SCT-ÖTV) and stamp tax, which vary according to the concrete case. When the profit distribution of the company partners is made, tax deductions are also made on this.

WORK PERMIT FOR FOREIGN COMPANY PARTNERS:

The work permit for foreign company partners has been updated in the new International Labour Law No. 6735. According to the new law; the obligation to obtain a work permit for non-resident board members of joint stock companies and other foreign partners of limited liability companies who are not company officials has been abolished.

ABOUT RUSSIAN CITIZENS:

After the 2022 Russia-Ukraine war started, many Russian citizens want to open a company in Turkey due to the sanctions against Russia. There is no restriction on Russians to open a company in Turkey even in the current war situation. So Russian citizens can establish a company in Turkey. All the procedures and rules we mentioned above are also valid for Russian citizens.

**The company that Russians will open in Turkey, even if it has Russian partners, will remain outside the sanctions imposed by the US and Europe, as it will be a Turkish company established under Turkish law.

OPENING BANK ACCOUNTS FOR FOREIGNERS:

There is a distinction between opening bank accounts for foreign natural persons and opening bank accounts for foreign companies.

Firstly, the relevant foreigner needs a notification address. Without this, it is difficult for a foreigner to open a bank account.

Next, the foreigner needs a potential tax number, which is issued to the foreigner as a result of an application to the tax office with his/her passport.

In addition to the residence address and the tax number, the passport is also an indispensable element. The foreigner who wants to open a bank account must have his/her passport with him/her during this process.

Some banks may also request a telephone number or an invoice in the name of the foreigner in Turkey. If a bank with such a request is to be applied to, such a number must be obtained.

When the foreigner opens a bank account in Turkey, he/she can access this account whenever he/she wants and obtains a more economical opportunity in terms of money transfer.

OPENING A BANK ACCOUNT FOR FOREIGN COMPANIES, APPLICATION AND REQUIRED DOCUMENTS:

A bank account in the name of the company can be opened by an authorised person who can carry out legal transactions on behalf of the company, i.e. a director, partner, etc. who has signature authority.

As in the case of obtaining a personal bank account, a tax number must be obtained on behalf of the company before the application to be made for the company. However, the company that will receive a tax number is not required to be in commercial activity in Turkey. The company with any residence address will be able to request this tax number from the tax office. This tax number does not mean that the company will pay tax.

In order to open a bank account for foreign companies; company articles of association, chamber of commerce registration, establishment and activity documents, records in the trade registry are required. The person authorised to open a bank account on behalf of the company will go to whichever bank he/she wants to open an account with these documents, tax number and documents regarding residence.

Banks operating in Turkey show a more tolerant approach for foreign companies and provide convenience in opening a bank account, while they cause difficulties for companies that do not have an address such as a notification address, branch office or liaison office in Turkey.

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