Legal Nature Of Share Certificates In Limited Liability Companies

March 1, 2013

Article 593/2 of the new Turkish Commercial Code No.6102 regarding shares of capital stock provides that, “shares of capital stock shall be issued as proof or as registered shares.” This article suggests that issuance of share certificates will be possible for limited liability companies. However, the rationale for this article states that share certificates would not provide ease of transfer or circulation for the shares of limited liability companies. Thus, it is apparent that the legislator does not intend to provide a security nature to the share certificates of limited liability companies. In Article 484 and the subsequent articles of the new Turkish Commercial Code No.6102, share certificates issued by joint stock companies are considered under the section "Securities". It is provided in the said articles that ownership transfer in joint stock companies would-be possible by the transfer and endorsement of the possession of the share certificates; which underlines the "security" nature of such share certificates. On the other hand, the new Turkish Commercial Code No.6102 does not include any provisions stipulating any security nature for share certificates of limited liability companies. To the contrary, as described above, when the rationale for Article 593 of the Law is concerned, the legislator clearly underlines that it has no intention to provide limited liability company shares a security nature by stating that share certificates in limited liability companies will not provide any ease of transfer and circulation for the shares. Nevertheless, when Article 595 is concerned, regarding transfer of the share capital of limited liability companies, we come to a conclusion that these are not of a security nature. Article 595/1 of the new Turkish Commercial Code No.6102 provides that transfer of partnership shares in limited liability companies cannot take place in the form of a "share certificate transfer". Procedures that result in the transfer of share capital and transfer debt are realized in writing, where the signatures of the parties are certified by a public notary. In other words, transfer of partnership rights by "share certificate endorsement" is not possible for limited liability companies. On the other hand, Articles 489 and 490/2 of the Law provides that, in joint stock companies, registered share certificates may be transferred by endorsement, and the bearer shares may be transferred by delivery, without being subject to any limitations. Therefore, it should be accepted that share certificates of limited liability companies are not securities. Then, the taxation aspects of the matter should be briefly evaluated. The duplicated Article 80 of the Income Tax Law provides that, proceeds from the disposal of securities or other capital market instruments are considered as taxable capital gains, except for those voluntarily acquired and those that belong to fully obligated institutions, which are held for more than two years. As a legal conclusion, transfer of the shares of limited liability companies would not be considered within the context of the exemption granted by the duplicated Article 80 of the Income Tax Law, providing that proceeds from the disposal of voluntarily acquired share certificates and those that belong to fully obligated institutions, which are held for more than two years, will not be considered as capital gains and are therefore not subject to tax.

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