COMMUNIQUE ON THE PROCEDURES AND PRINCIPLES RELATING TO THE APPLICATION OF ARTICLE 376 OF THE TURKISH COMMERCIAL LAW NO 6102 HAS BEEN CHANGED! 03 January 2021

The Communique on the Procedures and Principles Regarding the Application of Article 376 of the Turkish Commercial Code No. 6102 ("Communique") regulates the procedures and principles to be followed in cases of capital loss or indebtedness  within the scope of the mentioned article. In the Communique issued for this purpose, important changes took place in the Official Gazette dated 26 December 2020.

What Changed in the Communique?

In cases of capital loss or indebtedness, the situation where at least half of the sum of the capital and legal reserves are uncovered, the loss is equal to or more than half of the sum of the capital and legal reserves and less than two thirds are discussed in Article 6 of the Communique. At this point, a regulation has been made that the board of directors will offer remedial measures.

Article 7 of the Communique has expanded the scope of the measures that can be taken in such cases by referring to the Law on how the General Assembly invited to the meeting will make capital decrease in cases where the loss in the company is equal to or more than two-thirds of the sum of capital and legal reserves.

The company, which lost at least two thirds of the total of its capital and legal reserves, is not with one third of the capital as regulated in the previous Communique; will be able to suffice with the remaining capital. Article 8 regulating this amendment also stipulated that at least half of the sum of capital and legal reserves should be protected within net assets and limited the capital decrease by stating that the capital could be reduced to the minimum amount of capital.

The capital fund collected to cover the balance sheet losses can only be used for offsetting the losses according to the Article 9 of the Communique.

One of the important changes occurred in the 10th article. Accordingly, the company can decrease its capital as much as its loss and increase it at any amount simultaneously. In addition to this opportunity, the loss in capital can be compensated without any decrease. In this case, a capital increase decision will be taken. However, in order to achieve this, it is stipulated that at least half of the total of the registered capital and legal reserves must be preserved in equity and the amount providing protection must be paid before the capital increase is registered. Thus, it was emphasized that the value to be protected is half of the capital and legal reserves; In addition, it has been stipulated that the amount to be paid before registration in capital increase will be equal to the increased portion of the capital. At the same time, the capital can be increased or decreased as desired, provided that the amounts are paid in full at the same General Assembly without requiring the payment condition before registration. At this point, at least half of the sum of to be registered capital and legal reserves must be protected in net assets.

Finally, it is stated in the Provisional Article 1 of the Communique that half of the sum of expenses, depreciation and personnel expenses arising from leases accrued in 2020 and 2021 may not be taken into account in cases of capital loss or indebtedness, as well as exchange loss losses arising from foreign currency liabilities that have not yet been performed.