Taxation of the Income Arising From the Right to Claim Obtained From Pre-paid Housing Sales in the Scope of Income Tax Code

Abstract

Pre-paid housing sales contract is a consumer contract between the consumer and the seller. This contract is mostly made in the form of preliminary property sales contract. Right to claim between the parties will be arised with this contract. Therefore, it is also possible for the consumer to transfer this right. It is controversial whether the income obtained from the transfer of this right will be taxed under the Income Tax Law. There are three main views on this issue, which were discussed in the doctrine before. According to the first, this gain is a capital gain. Secondly, this gain is an occasional commercial gain. According to the last opinion, this gain cannot be evaluated under the Income Tax Law and therefore cannot be taxed. Within the scope of this study, these views in the doctrine were examined. One of the results achived in this subject is that the terms are not in line with the terminology of civil law. In fact, the concept of “the right to buy housing” should be corrected as the right to claim. Also it is concluded that the income obtained from the transfer of the claim will not be considered as an capital gain within the scope of of the Income Tax Code. The expansion of the article of the law to include this gain, is primarily against the principle of the legality of the tax which sourced from the Constitution. Finally, it is stated that this gain cannot be described as occasional commercial gain if it is obtained from the preliminary property sales contract which is risen from the pre-paid housing sales. Since only the consumer can be a party of a pre-paid housing sale, this prevents all transactions from being considered as commercial.