AMENDMENT WITH RESPECT TO REGULATIONS GOVERNING CAPITAL LOSS AND NEGATIVE EQUITY
As per our Newsletter dated 19 April 2022, we informed you regarding the Communiqué on the Amendments on the Procedures and Principles of the Implementation of Article 376 of the Turkish Commercial Code No. 6102 (in Turkish, “6102 Sayılı Türk Ticaret Kanununun 376’ıncı Maddesinin Uygulanmasına İlişkin Usul ve Esaslar Hakkında Tebliğ’de Değişiklik Yapılmasına Dair Tebliğ”) which entered into force on 26 December 2020. This Amendment aimed to strengthen and clarify the situations where the technical insolvency shall be applied and the measures that shall be taken in the given circumstances.
With a new Communiqué on the Amendments of the Communiqué regarding the Procedures and Principles of the Implementation of Article 372 of the Turkish Commercial Code No.6102 (in Turkish, “6102 Sayılı Türk Ticaret Kanununun 376’ıncı Maddesinin Uygulanmasına İlişkin Usul ve Esaslar Hakkında Tebliğ’de Değişiklik Yapılmasına Dair Tebliğ”) which has been published in the Official Gazette numbered 32007 and dated 8 November 2022 and entered into force on the same date, the envisaged date of matters stated hereinbelow under Provisional Article 1 of the Communiqué on the Procedures and Principles of the Implementation of Article 376 of the Turkish Commercial Code No. 6102 (in Turkish, “6102 Sayılı Türk Ticaret Kanununun 376’ıncı Maddesinin Uygulanmasına İlişkin Usul ve Esaslar Hakkında Tebliğ”, the “Communiqué” ) has been amended from 01.01.2023 to 01.01.2024. Therefore, the deadline of 1 January 2023 has been postponed to 1 January 2024.
Accordingly, as per Provisional Article 1 of the the following matters may not be considered in the calculations in relation to capital loss or negative equity in accordance with article 376 of Turkish Commercial Code until 1 January 2024 in order to keep companies out of the scope of the capital loss (in Turkish, “sermaye kaybı”) and technical insolvency (in Turkish, “teknik iflas”) situations considering fluctuations and negative effects of Covid-19 pandemic;
- all of the foreign exchange losses resulting from foreign currency obligations that have not yet been fulfilled; and
- half of the sum of expenses resulting from leases, amortizations and personnel expenses accrued in 2020 and 2021.
The Communiqué also envisages that the mentioned amounts shall be calculated without being repetitive, and that no record will be inserted in the financial statements prepared in accordance with Article 13 of the Communiqué regarding the calculations and that the situation will be indicated in the footnotes for informative purposes.
Our Law Firm remains at your disposal for any further clarifications you may need.