LEGAL FUNCTION AND CONCLUSIVE FORCE OF INVOICE AND OBJECTION TO INVOICE

INTRODUCTION

Ensuring certainty and stability in commercial life is one of the important elements that contribute to the principle of legal security and the country’s economy. Invoices for documenting and recording contracts drafted by merchants ensure that this element is implemented in commercial relations.

In this bulletin, necessary information on the written form requirements of invoice-which is one of the most frequently used documents by traders in practice-, presumption of the acceptance of invoice content, legal consequences of objecting and not objecting to the invoice, and proof power of invoices will be discussed. Proposals for solutions which are frequently encountered in practice will be presented, including examples of legal disputes caused by invoices, and high judicial decisions.

Key Words: Invoice, Conclusive Force of Invoice, Evidence, Content of Invoice, Objection to Invoice, Return Invoice, Open Invoice, Paid Invoice

  1. What is an invoice, when and how its issued?

In our law, issuing invoices is a right and obligation in regard to natural or legal person merchants. Every natural and legal person who is considered as a merchant and is a taxpayer has the right and authority to issue invoices.

Invoice is not defined in the Turkish Commercial Code (TCC) either. A definition can be made as follows by reference to the Tax Procedure Law (TPL), TCC and Court of Cassation case law: “It is a commercial credential issued by the merchant to the opposite party in order to document the amount owed by the person who receives goods, uses the service or performs the work in exchange for selling, serving or doing business in the context of his commercial enterprise.” Based on the definition, the merchant can issue an invoice only if there is a contract with the opposite party. The merchant must issue the invoice in accordance with the existing agreement between them. But the fact that the invoice is issued alone is not enough to prove the existence of a commercial business relationship or a contract. If the contractual relationship is denied by the interlocutor of the invoice, the issuer of the invoice will need to prove the existence of this agreement.

Elements such as the type, variety, amount of the goods sold or the service seen, and the amount of borrowings called ordinary content, are indicated in invoices. According to Article 230 of the TPL, an invoice must contain at least the following records;

  • Date, serial and sequence number of the invoice
  • Name, trade name if exists, business address, related tax office and account number of the issuer of invoice
  • Name, trade name, address, tax office and account number if exists, of the customer
  • Nature, quantity, price and amount of the goods or work
  • Delivery date and dispatch list number of the goods sold

The invoice must be issued in accordance with the above-mentioned conditions and with the terms of the contract; and must be notified to the other party. The invoice is delivered to the opposite party in practice by registered and certified mail, through notary, by signature of the opposite party on the records with received annotation. But in order to prevent disputes that may arise, the healthiest and most reliable way is to deliver invoices to the opposite party through a notary. For the convenience of proof, at least deliveries in which the signature of the opposite party is received on a protocol or copy should be preferred. Attention to these points in practice will provide convenience in proving that the invoice was delivered and the date of delivery, and will prevent possible disputes. Because, this issue is extremely important in terms of the acceptance of the invoice as evidence and, the beginning of the period of appeal to the invoice.

Although there is no clear regulation in the TCC as to when the invoice should be issued, the relevant provisions mean that it will be issued after the established contract. In TPL article 231/5, it is stated that invoices will be issued within a maximum of seven days from the date of delivery of the goods or the service. It is stated that invoices that are not issued during this period will be considered not issued at all. Invoices that are considered never issued in accordance with the TPL continues to be considered as evidence from the point of view of the TCC, since the goods or services specified in the invoice were provided or presented to the opposite party.

  1. Objections to Invoice and its Consequences
    1. Procedure of Objection to Invoice

As for how to object to the invoice, there are no clear legal regulations in our legislation. But since the invoice is a written evidence in terms of general rules of proof, it can be said that objections to the invoice should be made at least in ordinary written form. Since there is no definitive forbiddance, there is no obstacle to a verbal object to the invoice. But it is not recommended, as there will be difficulties with proof.  

Although there are lawyers who believe that merchants should make their objections to the invoice through a notary in accordance with article 18/3 of the TCC, if the person receiving the invoice is also a merchant, there is no indication that merchants should make their objections to the invoice through a notary in article 18/3. The said provision finds application in matters related to default, rescission of a contract and annulment of a contract. In summary, it can be said that the most guaranteed method is to object through a notary, although it is enough to make objections at least in written form, regardless of whether the recipient of the invoice is a merchant. In terms of e-invoices, a written warning will have to be sent through notary to determine the main elements of the invoice, such as the date, number and amount to be objected to.

The objection to the invoice must be made within an eight-day period, which will begin processing the day after the receival of the invoice. The person receiving the invoice must prove that the invoice has been objected.

  1. The Term of Return Invoice

Due to the legal gap in our law on the procedure for appealing the invoice, the concept of a refund invoice, which arises in practice, is used as a way to object to an invoice. A return invoice is a counter-invoice issued by the addressee receiving the invoice. In fact, a return invoice, which is an invoice that is supposed to be issued in the return process that will be made as a result of the performance of defective goods, has also been used by merchants as a method of objecting to the invoice without returning the goods.  With this invoice, the addressee certifies that all or part of the goods he has received from the merchant have been returned and wants to be completely or partially relieved of his responsibility for the debt in the invoice he has received. In the decisions of the Court of Cassation, it was stated that the return invoice cannot be accepted as an objection to the invoice. Despite this, issuing a refund invoice -which carries exactly the same conditions as the first invoice-  for the purpose of objection to the invoice within an eight-day period can still benefit as strong evidence in the event of a dispute and continues to be used as one of the ways to object to the invoice.

The question of utility of return invoice in contracts with subject matter of a service seen-which are issued in accordance with contracts related to the purchase and sale of goods- may also come to mind. In the section of VAT Common Practice Communiqué related with the return of the goods, it is stated that since the return of the performed service cannot be in question, if a reduction in the transaction price subject to withholding has been objected due to the complete waiver of the service or the failure of the service to be performed in accordance with the terms of the contract, the provisions on returns of goods will apply in relation to the amount of reduction. If the invoice has been issued before the performance of the service and the invoice amount has also been paid, the return invoice may be issued due to the inability to perform the service, as so made in the return of the goods. 

2.2. Legal Consequences of Objection to the Invoice

2.2.1. Legal Consequences of Not Objecting to the Invoice

If the recipient of an invoice has not made an objection to the content of the invoice within eight days from the date of receiving, he is deemed to have accepted the content. With this arrangement, the legislator created an ordinary presumption. Presumption is a means of proof used by inferring from a known event about the existence or absence of an uncertain event or situation. A party based on a legal presumption will prove the case that forms the basis of the presumption. Therefore, the issuer merchant who proves that the content of the invoice is not objected during the period does not need to perform any other proof demonstration, and does not need to prove that the content of the invoice is accepted by the opposite party. Another important consideration is that a non-merchant customer is not obliged to submit an invoice within eight days, nor will he be considered to have accepted the contents of the invoice if he does not object.

In order for the invoice content to be considered accepted, a number of conditions must also be met. Otherwise, relying on this presumption will not lead to the legally expected result. Examining these conditions;

  • The invoice must be issued based on a valid contractual relationship. If an invoice has been issued without a contract, it should not be inferred that the recipient of such an invoice accepts the contents of the invoice, even if he does not object to it during its duration. If there is no contract between the parties, it is already considered as a proposal (offer), not an invoice, and the person receiving such a document is not considered to have accepted the contents of the document, even if he does not object.  In practice, a person who has been invoiced, despite the fact that there is no contract in between, has difficulty in proving it, since he has not recorded a contract that does not already exist in his commercial books. In this regard, it should be possible to prove his claim with all kinds of evidence, taking into account the general principles of law that “a person cannot rely on documents prepared by himself” and “no one has to answer a question that he did not cause”. If there is a contract between the parties, this agreement must also be legally valid, should not be invalid, null or void.
  • The invoice must be arranged in accordance with the written agreement. According to the prevailing opinion in the doctrine, the content of the invoice will not be considered accepted, even if no objection has been made to the invoice issued in violation of the written contract. If there is an invoice based on a contract that has not been made in writing, the burden of proof of the existence of the contract will lie on the issuer of the invoice. 
  • The person who sends the invoice must be a merchant. This presumption applies only to invoices issued by merchants, and this provision does not apply, for example, to invoices issued by craftsmen.
  • The invoice must not be objected in its duration. The addressee receiving the invoice must report their objections to the content of the invoice within an eight-day period that begins processing the day after receival. It is sufficient for an objection to be made within eight days, and it is not necessary for it to be delivered to the opposite party.

The issue of what should be understood from the content of the invoice, which is considered to have been accepted as a result of not objecting to the invoice, was determined by the decisions of the Court of Cassation. A person who does not object to the invoice is firstly considered to have accepted the issues related to the amount contained in the invoice. It is accepted that there are only considerations that are accepted ordinary such as type of goods sold or total work performed, kind, price in the invoice for the stage that the contract is performed. Therefore, the content that is considered accepted without objection to the invoice is limited to this.

A person who does not object to the invoice will also considered as he did not accept that he has received the goods specified in the invoice, used the service, or the work is performed, except for these considerations. In this case, it is up to the merchant who issues the invoice to prove that the goods have been delivered or that the service has been seen. Proof of this issue is possible with delivery note, invoice with dispatch list, delivery receipt, BA-BS forms. In addition, these record also will not be deemed to have been accepted if the interest to be paid has been recorded in invoice, in case of late payment. Because, while it was not agreed at the time of establishment of the contract, matters that make changes related to performance of the contract and aggravate the situation of the opposite party are not considered mandatory and ordinary content of the invoice, even if they are later included in the invoice.  However, if the addressee who received the invoice has recorded the invoice in their commercial books, this is considered as a presumption that the goods have been received or that the service has been seen. The burden of proof to disprove this presumption lies with the party who receives the invoice. Payment of an invoice amount that is not objected and processed in commercial books cannot be evaded. If the invoice is not entered in the buyer’s commercial books, the seller must prove the claim for debts with other evidence.

The issue of how a person -who does not object to the invoice that they have received- can disprove the content of the invoice is also a common conflict in practice. Herein, it is necessary to first look at whether the invoice is issued on the basis of a written contract, based on the general rules of proof. If the invoice is based on a written agreement signed between the parties, the person receiving the invoice must also disprove the content of the invoice with written evidence. 

2.2.2. Legal Consequences of Objecting to the Invoice

If the invoice has been objected within an eight-day period, the parties are considered to have been unable to agree on the content of the invoice. In this case, it is up to the merchant who issues the invoice to prove that the invoice content is correct. In this regard, it will be able to prove the accuracy of the invoice content based on the contract concluded between parties, commercial books and records, delivery note, invoice with dispatch, delivery receipts and BA-BS forms which indicate that the goods in question have been delivered or the service has been seen.

One of the legal consequences of objecting to the invoice we coincide is in actions for annulment of objection based on the invoices. If the invoice has been objected and there is no written contract in between, compensation for denial of execution which is specific to the action for annulment of objection, cannot be ruled as the receivable will not be considered liquid.

  1. Proof Value and Conclusive Force of Invoice

An invoice is a type of written evidence that bears the signature of the issuer. It’s qualification as a bond is debatable. Because in order for a document to qualify as a bond, it has to have the signature of the person who is in debt and must to carry an acknowledgement of debt. However, with invoices a debt is created against someone else. If this opinion is adopted, it will be concluded that the disprove can be made with all kinds of evidence, for instance, even with a witness.

The opinion in the doctrine and the Court of Cassation distinguish between an objected invoice and an unobjected invoice when determining the evidential value of invoices. Accordingly, an invoice that has not been objected is a document that has now gained the qualification of a bond by the receiver. For this reason, it is possible to disprove the invoice only with conclusive evidence. In other words, the interlocutor will be able to prove his claim based on commercial book records, bonds or proof by oath in exchange for the invoice.

Merchants have an obligation to record invoices in their commercial books. Invoices that are recorded to commercial books and unrecorded invoices will also have different evidential value. Invoices recorded in commercial books will be subject to the provisions of the Code of Civil Procedure regarding the evaluation of commercial books as evidence, while those described in the previous paragraph apply to invoices not recorded in commercial books. Hereby, it will be necessary to also address the requirements for evaluating commercial books as evidence.

In order for an invoice recorded in commercial books to be considered as evidence in commercial cases, the book must be kept in accordance with the terms and procedures of the law, opening and closing approvals must be made, and the invoice and contract records in the book must also confirm each other. In order for a merchant’s commercial books to be evidence in favor of the owner, both parties to the dispute must be merchants and the dispute must concern the commercial business of both parties. In addition, it is essential that the records in the commercial books of the other party are not contrary to the records in this book or contain no records in the relevant matter, or that the book records have not been proven otherwise by promissory note or conclusive evidence.

If the commercial books are not kept in accordance with the law, they are only considered as evidence against the owner in case of irregularities. In its decision on the matter, General Assembly of Civil Chambers of the Court of Cassations established the following provision; “Although there can be no evidence of benefit due to the lack of closing approval of the defendant’s commercial books, there will be evidence against him in terms of debt registered, in his own book … the fact that it is registered in the defendant’s book creates a presumption that the goods contained in the invoices were delivered to the defendant. In other words, the contents of the invoices must be proved by the defendant that the commodity was not delivered and that the invoices were unlawful. However, the court imposed the burden of proof on the plaintiff without regard to this aspect, and the provision was established in writing with incomplete examination and erroneous evaluation … based on invoices that are not the subject of the action.”

In the proof of a dispute, the party which states that he will rely on the commercial books of the opposite party does not need to be a merchant. If there is no record of the invoice or contract in the commercial books of the other party kept in accordance with the law, the claim is considered unproven. But if the book is not kept in accordance with the law, in this case, the party that relies on the commercial book as evidence can prove the existence and performance of the invoice and contract with other evidence.

As a second possibility, there are two possibilities if records based on the commercial books of the other party and related to the subject of dispute exist in this book; first, if there are only records against him in the commercial books of the other party, whether the commercial books are kept in accordance with the law or not, these records are considered conclusive evidence against the owner. In this case, the owner of the commercial book will also have to disprove the records with conclusive evidence. The second possibility is that if there are records for both for the benefit and against the owner in the commercial books of the other party kept in accordance with the law, these records cannot be separated from each other. In other words, the merchant can not ask to take into account only the records in his favor in the book of the other party, all the records that are in benefit and against are evaluated together. But if the commercial books of the other party are kept unlawfully, in this case, records in favor of the owner are not considered as evidence, records against them are considered as evidence.

Finally, if one of the parties relies on the commercial book of the other party, but the owner of the book avoids submitting this book, the party based on the book will be considered to have proven its claim.

  1. Conclusive Force of Open and Paid Invoice

Although it is not legally stipulated, it is a distinction that has become a commercial custom. Briefly, an open invoice is an unpaid invoice; a paid invoice is a collected invoice. If the merchant has put his stamp and signature under the invoice he has issued, it is a paid invoice and it is a presumption that the amount has been collected.

Furthermore, if a paid invoice has been issued on the basis of a sales contract, this invoice constitutes a presumption that the goods have been delivered or that the service has been seen, contrary to the general rule. The reason for this acceptance is that the parties have an obligation to perform simultaneously regarding the sale contracts. In summary, the person who pays the sale price is considered to have received the goods or the service. It is up to the addressee who receives the invoice to prove otherwise.

CONCLUSION

Invoices are an important part of everyday life as well as commercial life. It is important to duly regulate and notify these credentials that merchants use to document their activities related to their commercial enterprises and to know the objections against and consequences of the invoice in order to prevent disputes that may arise in practice. Most of the disputes related to the invoice arise in enforcement proceedings based on the invoice and in actions for annulment of objection. Proving; whether the cost of the invoice has been collected, whether the goods included in the invoice have been delivered or whether the service has been seen are characteristic and complex considerations. Regarding the technical issues that we are trying to explain above, it will be very useful for the parties to the dispute, to benefit from legal support, in order to prevent loss of time and forfeiture.

Sincerely.

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