LIQUIDATION;
It is the conversion of all the assets of the company into money, the collection of its receivables, the payment of all debts of the company, and the payment of the liquidation surplus remaining after the tax and public receivables to the shareholders of the company in proportion to their capital.
I-Liquidation Decision; (Art. 546)
General assembly decisions regarding liquidation are taken in accordance with Article 418. Pursuant to the article, the general assembly will be convened with the presence of the owners or representatives of the shares that meet at least one quarter (25%) of the capital.
This quorum must be maintained throughout the meeting. If the mentioned quorum cannot be reached in the first meeting, the quorum will not be sought for the second meeting to be held. In other words, 25% is not required in the second meeting.
Decisions are made with the majority (more than 1/2) of the votes present at the meeting (those who have at least 25% share in the first meeting and 25% is not required in the second meeting).
II-Liquidation Principles:
• During the liquidation, the legal entity continues (TCC. Art. 545).
• The purpose of the partnership automatically turns into a purpose of liquidation; As a rule, the partnership cannot engage in new transactions and activities for this purpose. The phrase “In Liquidation” is added to the Trade Name ((Art. 533).
• Organs survive. However, during the liquidation, the duties and powers of the association bodies become limited to the transactions that are mandatory for the liquidation, but cannot be carried out by the liquidators (Art.535).
• Liquidation is carried out by the liquidators for any reason other than bankruptcy. In case of bankruptcy, liquidation is made by the bankruptcy administration (Art.534).
III-Liquidators:
Liquidation is done by YK as a rule; however, the liquidators may be shown in the articles of association, and they may be elected later by the GK. The liquidator does not have to be one of the partners.
Unless otherwise stipulated in the articles of association and appointment decision, they have remuneration rights (Art. 536/1). If the dissolution of the company is decided by the court, the liquidators are also appointed by the court (Art. 536/3).
At least one of the liquidators authorized to represent the citizens of Turkey and that the settlement is to be present in Turkey (Art. 536/4); otherwise, the law regulated what should be done (Art. 537/3).
Regardless of the method of appointment, the GC always has the power to dismiss these officers and to elect new ones instead; Dismissal and appointments may be requested by the court based on justified reasons ((Art. 537). Liquidators must also be registered and announced (Art. 536/2).
In this process, liquidators are authorized to manage and represent (Art.539), as well as partnership bodies, limited to liquidation affairs (Art.540 et al.), And perform the works specified in the law (Art.540 et al.). They perform their duties within the limits of the corporation’s right of rights and purpose of liquidation; However, the transactions they carry out other than the purpose of liquidation also bind the company; Unless the third party’s bad intentions have been proven (Art. 539/2).
They also have the authority to call the GC to a meeting and to sell non-significant assets (Art.535/2; 538). As a rule, they act together; If they are more than one, the double signature rule applies (Art. 539/3); however, they can be authorized alone with the articles of association or the GK decision. In addition, they are authorized solely for the delays and passive representation (accepting declarations such as warning, notice); Except for non-transferable powers, they can give representation authority to each other or to a third party for certain works (539/1).
IV-Liquidation Works:
Dissolution, other than bankruptcy, is registered by the Board and announced three times with an interval of at most one week. In the announcement, it is announced that the partnership creditors must apply with their documents within 1 year from the third announcement. In the liquidation process, the actions to be taken by the civil servants consist of the following:
Preparing the first inventory and balance sheet, keeping the books, inviting creditors, collecting the company’s receivables, carrying out daily transactions and completing the works that have been started, converting the assets into cash, paying the company debts, distributing the liquidation residue (balance), if any, and finally, with the abandonment of the company from the registry 540-541), other liquidation works specified in the law (Art. 542).
Distribution of the liquidation surplus, as a rule, is made in proportion to the share of capital paid by the partners. However, if privileged shares are stipulated in the articles of association for obtaining liquidation shares, the privileges are taken into consideration (Art. 543).
If the partnership debts are more than the existing ones, the liquidators must immediately notify the commercial court of the place where the company headquarters is located; the court also decides to open the bankruptcy (Art. 542/1, c).
V-Additional Liquidation and Reversal:
Unlike the old TCC, the new Law has regulated additional liquidation and reversal from liquidation separately (Art. 547 and 548).
Additional liquidation comes into question after the end of the liquidation, in cases where it is necessary to carry out additional works. In these cases, the last liquidators, YK. Members or creditors can request the re-registration of the company by applying to the commercial court of first instance where the company headquarters is located, until additional transactions are made. The court sees the request as appropriate, that is, if it deems it necessary to do additional work, it decides to re-register; appoints the same or a new person or a few people as liquidators and have them registered and announced (Art. 547).
Reversal from liquidation comes to the fore on the condition that the distribution of assets has not begun in cases where the company expires or ends with the decision of the general assembly. Under these circumstances and conditions, GK., With the affirmative vote of at least sixty percent of the capital, may decide the continuation of the company; This decision is registered and announced by the liquidators. The articles of association may aggravate the said quorum or include other measures (TCC. 548/1). *
In the event of termination due to bankruptcy, if the bankruptcy has been abolished or ended with bankruptcy, concordat, the company continues again; The liquidator registers the decision that the bankruptcy has been lifted (the absence of the announcement here stands out as a deficiency). In addition, since it is foreseen for the registration request to submit a document stating that the distribution of liquidation shares has not started, it is understood that the non-initiation of the distribution is also a legal requirement here (TCC.548 / 2,3).
VI-. Liability of Liquidators
The opposite opinion is the founders’ TCC. Stating that the acts within the scope of articles 549, 550 and 551 are excluded from the responsibility set out in article 553, the founders are also subjected to a responsibility parallel to the responsibility of the organ, although they are not organs, because the founders have duties and obligations like the managers, and that the founders are specifically regulated in the provision. .
Whether it is based on fault or not: The liability is based on fault as a rule, Art. Presumption of defect is stipulated in 553. Depending on the reasons for responsibility and those responsible, there seem to be exceptions to the rule. For example, Md. In 549, defect condition was not sought for those who prepared the documents and made the declaration; Md. In terms of responsibility in 550, again, no fault was mentioned in terms of those who are not company officials
Returning to the rule, it has been accepted that the members of the board of directors, founders, executives and liquidators will be “liable for the damages they cause to the company, the shareholders and the creditors, unless they can prove their fault” (Art. 553).
RESULT:
If a liquidation officer is not appointed by the articles of association or the decision of the general assembly, the liquidation is carried out by the board of directors. The board of directors has the liquidators registered with the trade registry and announced. This provision is also applied in case the liquidation work is carried out by the board of directors.
In cases where the court decides to dissolve the company, the liquidator will be appointed by the court. Represented by at least one of the official liquidators to be Turkish citizens and are a prerequisite for settlement in Turkey.
The Liquidator makes an announcement three times in the Trade Registry Gazette with a week interval as a Call to the Creditors as of the registration and announcement of the company’s entry into liquidation. From the publication of the third announcement, it converts the Company’s assets into cash, pays its debts, distributes the remaining capital surplus to the partners in proportion to their shares.
If more than a year has passed and there is nothing left in the company’s assets and liabilities, the liquidator prepares a declaration of property in accordance with the Execution and Bankruptcy Law and calls the shareholders to the General Assembly for the closing of the liquidation. Company closing procedures;
1-From the Trade Registry Office,
2-From the Tax Office,
3-From SGK,
4-They are removed from the profession chambers.
Later, the liquidator applies to the Tax Office in order to get rid of the liability according to the VUK, Public Claims Law 6183 and the Corporate Tax Law, and requests a Liquidation investigation. (Even if this request is not made, the responsibility of the liquidator continues.)
After all these transactions are done, the Liquidation procedures are concluded.