Issues concerning liability rising from public receivables in case of share transfer

Abstract

On 20/04/2016, the Law No. 6701 on Human Rights and Equality Institution of Turkey entered into force. Although it seems like a law of Partners of corporations, in principle, are not personally liable for debt of corporations provided that they paid the capital they had undertaken. However, there were some exceptions to this principle regarding public receivables, notably, tax and social security contributions. One of these exceptions is article 35 of Law numbered 6183. According to this, partners of limited company are liable pro rata for the public receivables that are uncollectible wholly or partially or seemingly uncollectible and in case of share transfer, transferor and transferee are jointly liable for the public receivables that are due before the date of transfer. Similarly, article 89 of Law numbered 5510 states that in cases of workplace is either taken over or transferred along with the assets and liabilities, or joined or merged with another workplace, new employer is jointly and severally liable for the debts of corporations consisting of contributions, default penalty, default interest and others as well as former employer. In both circumstances, agreements eliminating joint liability of parties for public receivables are void for the creditor Institution, provisions in such agreements determinate recourse. For this reason, there has been significant legal disputes in practice in mergers by share transfer or acquisitions regarding transferee has to bear the public debts that are due before the date of transfer. In this study, recourse between transferee and transferor as being jointly liable will be examined.