Finansal ürünlerin vergilendirme ve yasal düzenlemeler açısından değerlendirilmesi

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Tez No: 53599
Yazar: ATİLLA UYANIK
Danışmanlar: PROF.DR. İLHAN ULUDAĞ
Tez Türü: Doktora
Konular: Bankacılık, Ekonomi, Banking, Economics
Anahtar Kelimeler: Belirtilmemiş.
Yıl: 1996
Dil: Türkçe
Üniversite: Marmara Üniversitesi
Enstitü: Bankacılık ve Sigortacılık Enstitüsü
Ana Bilim Dalı: Belirtilmemiş.
Bilim Dalı: Belirtilmemiş.
Sayfa Sayısı: 266

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Özet (Çeviri)

SUMMARY In the market-economy, in which it's application area is growing wider, first in developed countries and then in developing ones the specialization and globalization of financial markets bring the development of financial means and techniques. On one hand the need of a long term fund which increases parallel to the economical growth and on the other side tree saving owners interest on the investment of financial products rather than making a reel one has made the financial markets an important organ of the economies. The importance of the financial markets are due to the fact that these financial products should have the gualities of reliance and profit that makes them demandable. These products which are a kind of providing source to the corporates and also means of investments in finance sector are in close relation whit each other in terms of the formation of the source and distribution, and also the have an important promoter for both micro and macro terms with the effect of the practicing financial and economical politics. In order to increase the workability of the capital and money markets and the regulations that will constitute the foundation of rapidly increasing financial products have gained more importance. Both in the issues and transaction on financial products and also with the reduction of problems while facing whit results to the minimum that the addition of small savings to economy in a profitable way which spread through a large add the development of the markets will due to this. 276The importance of the financial markets increase gradually only due to the economical development but also to the development of social gualifications saving defusion of possession reproducing goods with the intermediary of financial products spreads the wealth and income distribution to large communities. In Turkey especially after 1980's, modernism in capital and money markets has been tried to be made parallel to the changes in the world and with the acceptance of capital market code article 2499 in 1981 (mostly changed with the code number 3794 in 1992), then market have gained a special regulations As it's known there's the need of encouragement for the offering of saving owners extra funds to the market and the ones who need these funds to ensure from the market. Obviously, the most effective of these encouragemets are the ones that are realized by tax policy from this point of view in the recent years important changes in tax laws especially in GVK (income tax code) and KVK (Corporation income tax code) has been started so that the tax exemption and exceptions are enlarged according to financial corporations. (Like investment fund and association) and the profit that's obtained from the financial products. The goal and the, base subject of this work that we that we present is directed to the effects of regulations and taxation of financial products over financial markets which are transaction in financial system. With this aim we firstly tried to present the theoretical approaches in a systematical way. The work is reserved wide both theoretically and applicationaily and the worlds and Turkey's applications are handled separately. Our work is formed of three main parts except the result part and seven under sections. In the first part, first section with the identification of financial 277markets and functions international financial markets, financial innovations the regulation of financial system is dealed and money rational expectations and efficient market are theoretically searched. Also in the first part, second section it's explained upon the effects of taxation of financial product and general taxation theories on financial markets. In the second part it's explained with financial markets and financial products according to regulations and application we see in this part. In the first section there's the world and in the second section there's the application and regulation of Turkey. In the third part the financial products and the taxation of market participants are searched and in the first section the system and the principles in the world in the second section the system and principles in Turkey and the third section the tax agreements of which Turkey is supporter and it's application over financial products are searched considering to prevent international double- taxation agreements. An overview of the financial system: Financial markets (bond and stock markets) and financial intermediaries(bank, insurance companies, pension funds) have the basic function of getting by moving funds from those who have a surplus of funds to those who have shortage of funds. The financial system of the United States and other developed nations performs a number of functions that are essential for a modern private enterprise economy. Two of the most important of these functions are providing the means by which(1)payments for transactions are accomplished and (2) savings are accumulated and channeled in to investments uses. Paying for goods and services, saving, lending, borrowing, and investing are all activities are carried 278out in the framework of instruments, institutions, and markets that constitute the financial system. The major function of the financial system is to efficiently gather and allocate funds in the economy by bringing borrowers and lenders together. Borrowers and lenders can be households, business firms, government, and foreigners. We have seen how the financial system channels funds from lenders to borrowers and look at the difficulties and other problems in this relations. The theory of rational expectations and efficient capital markets: Throughout our discussion of the subject many facets of financial markets, you may have noticed that subject of expectations keeps cropping up again and again. The theory of rational expectations attempts to explain how economic agents from their expectations. It is at the center oi many recent debates about how monetary policy and fiscal policy should be conducted. On the other hand, when this theory is applied to financial markets, where it is called the theory of efficient capital markets (efficient markets theory), it has important implications about what factors determine securities prices how these price move over time. The example makes the following important point about rational expectations; even thought a rational expectation equals the optimal forecast using all available information, a prediction based on it may not always be perfectly accurate. As a result, to explain our subject, we have to know this;,“While the theors of rational expectations was being developed by monetary economists, financial economists were developing efficient markets theors in 279financial markets”, we will discuss this as follows; when economists say that the securities is efficient, they are not talking about whether the filling is-up-to date or whether desktops are tidy. They mean that information is widely and cheaply available to investors and that all relevant and ascertainable information is already reflected in security prices. The efficient market hypothesis is frequently misinterpreted One common error is to think it implies perfect forecasting ability. In fact implies only that prices reflect all available information. Market efficiency has been defined three levels by Harry Robert's. The first called this a least, second level of efficiency called this a semistrong and finally a strong from of efficiency. The strong-from contends that stock prices fully reflect all information from public and private sources. International financial markets: One of the most notable features ot the past few decades has been the accelerating internationalization of the financial system. As a result, in recent years financial markets have recorded dramatic growth in volume, range and complexity as they have become increasingly international. Generally, international financial markets include short-term financing and Ipng-term financing. Short-term financing in Euromarkets involves“eurocurrency”and long-term financing in capital markets involves“eurobond”. In many ways, the long-term market parallels the short-term market. Both markets have informational problems, as well as credit, interest-rate and liquidity risks. Eurocurrency (eurodollars) represent the creation of global claims, since.. ?.. ?.... \ both their parties do not have to reside in the same country, Eurobonds are 280denominated in one country's currency and sold in countries having currencies different from those of the issuer. Functions and types of financial products: Recall that one major function of financial markets is creating financial capital to substitute for real capital. Financial claims allow investors more flexibility than do directly owned physical assets, since they denominate wealth, facilitate the transfer of wealth, distribute and diversity risk, and separate risk. Financial products vary in terms of the income they promise and the ownership rights they bestow upon their holders. There are two types of major claims in financial system. Debt claims are simply loans; they usually offer norights of ownership to holders. Equity claims typically have two attributes of ownership, the right participate in profits and the right to have some degree of input in decision making for the business. The major types of financial claims according to fixed versus variable income and debt versus equity are as follows loans, notes, and bond, common stock, preferred stock and equity instruments. Financial innovation: The starting point to any systematic analysis of financial innovation must be the financial innovation must be the financial system and its basic function, for two reasons. First, financial innovation is an integral part of the working of a financial system and is the process whereby the basic functions are performed in different ways. Second the functions of a financial system must be the initial focus because the ultimate criterion when judging financial innovation is the innovation is the extent to which it increased the efficiency of financial intermediation in particular and the ^functions of theT financial system in general. 281On this basis classifies financial innovations as follows; -risk-transferring innovations (price and credit), -liquidity-enhancing innovations, -credit-generating innovations, -equity-generating innovations, Regulation of the financial system: The financial system is among the heavily regulated sectors of economy. The government regulates financial markets for three main reasons, to increase the information available to investors, to ensure the soundness of the financial system, and to improve control of monetary policy. There are many regulators agencies of the U.S. financial system, some of them as follows; -Securities and exchange commission, -Commodities Futures Trading Commission, -Federal Deposit Insurance Corporation, -Federal Reserve system. On the other hand, financial system is regulated by“Capital Markets Commission”in Turkey. Financial regulation in japan, Canada, and the nations of western Europe is similar the US.The provision of information is improved by requiring Corporations issuing securities to report details about assets and liabilities earnings, and sales of stock and by prohibiting insider trading. 282Tax theory and effective on financial system of taxation in financial products: Tax theory is define, burden of tax and who actually makes the tax payment to the government. The incidence of taxation is seen to fall on the person legally responsible for meeting the tax bill. The welfare costs or excess burden of taxation can be identified by reference to indifference curve analysis. The individual is assumed to bö faced with a fixed budget which permits the choice of any combination of two goods. The slope of the budget, will reflect the relative prices of two goods that depends on taxation or not. Before taxation the individual will chouse that combination of the two goods and in this way attain the highest level of welfare possible. Tax capitalization is a topic that is not only of importance in itself, but also provides a convenient link between concept of incidence and concept of allocation. In addition the concept once more warns against simply the face value analysis of taxation. We have seen that the twin objectives of economic growth and reduction of inequity can be secured best by reliance on progressive consumption taxes; but we have also that equity calls for this approach to be combined with the taxation of capital income under a progressive income tax. Given the potential conflict of the latter with investment incentives, it is surprising that much attention has been given to various devices by which detrimental investment effect can be minimized. Overview of the corporate equity and debt securities markets: Corporations issue securities of essentially three types; equity (in the form of common stock or preferred stock), debt (in the form of notes and bonds), and hybrid instruments, for example, securities with option characteristics(warrants, ' convertible bonds, and convertible preferred stock)and securities with 283characteristics of futures or forward contracts ( bonds where interest is indexed to the price of a commodity). Stocks, both common and preferred, evidence ownership of a corporation. The terms of issuance and rights attendant to ownership are prescribed by state corporate law, the corporation's charter and by-laws, stock exchange rules if the stock is listed on an exchange, and NASDAQ rules, if the stock is publicly traded but not listed. Corporate bonds, debentures, notes, and commercial paper are all forms of corporate debt. The terms of the debt (e.g.,interest rate or discount, principal repayment schedule including sinking fund provisions, and whether the debt is secured or unsecured) are specified in the corporation's charter, by-laws, or director's resolutions. The terms“bonds,”“debentures,”“notes,”and“commercial paper”are not precisely defined and are often used interchangeably. Debt securities can be issued in registered or bearer form. If they are in bearer form, they will typically be coupon instruments, that is, they will have detachable coupons that must be presented to the corporation or its agent before interest payments will be made. States and its agencies issue marketable, that is, freely negotiable, and nonmarketable securities (collectively“government securities”). Marketable government securities trade primarily over-the-counter and are of two types. The first comprises those securities issued directly by the United States, that is, Treasury bills, notes, and bonds. Government securities are issued to finance the operations of the United States and its agencies. Marketable govern.nient securities form the largest component of the United States financial markets,, Market participants trade (in outright purchases, sales, and financing transactions) 284hundreds of billions of dollars of such securities every business day. Secondary trading in government securities is for speculative and investment reasons, to facilitate short-term borrowings by institutions, and because of FRB open-market operations intended to influence interest rates and the growth of the money supply. On the other hand, state and local governments and their agencies typically issue debt securities in the form of notes, short-term obligations sold in anticipation of obtaining tax revenues other funds, or bonds that are long-term obligations issued to finance capital projects or governmental programs (collectively referred to as“municipal securities”or“munis”). In general, municipal securities either general obligation or revenue securities. Most municipal securities are interest bearing, although they can also be issued in discount form. In general, publicly offered municipal securities are rated for creditworthiness by Moody's Investor's Service and/or Standard & Poor's Corporation. A major attraction of municipal securities is that interest income is generally excluded from gross income for federal tax purposes and may be exempt from state taxation. The interest income on certain municipal securities is, however, subject to the alternative minimum tax in the hands of certain holders, usually corporations or individuals holding extensive portfolios of such securities. Municipal securities are subject to the antifraud provisions of the Securities Act, but they are exempt from the registration requirements of that statute. Under the Exchange Act, however, the Municipal Securities Rulemaking Board (“MSRB”), which is the self-regulatory organization for municipal securities brokers and dealer, has the authority to issue rules of practice that impose financial disclosure requirements for municipal securities. 285The“securitization”of otherwise illiquid financial assets is now commonplace. A wide variety of assets serves as the collateral that is pooled to create securitized assets. Securitization first began in the real estate mortgage markets, and securitizing mortgages on single-family, multifamily, and commercial properties has been an overwhelming success. To securities assets, the assets are packaged into“pools”, and securities backed in one way or another by the assets in the pools are sold to third parties. A variety enterprises can take advantage of the securitization process. Securitization frequently involves the sale or pooling of assets by a lender or an affiliate of the lender. In general, sales of individual loans to investors are not practical because the potential purchasers are unwilling to conduct a full credit analysis of each of the individual borrowers. These problems are minimized if groups of assets are pooled and interests in the pools are sold to purchasers. Types of asset-backed securities have exploded in recent years. At the date of this writing, securitized assets can be classified into seven broad groups; collateralized debt securities, participation certificates, pass-through certificates pay-through bonds, equity interests in entities issuing pay-through bonds, pass- through debt certificates, and interests in REMICs. Options on securities and commodities are very old trading vehicles. Trading in options on stock began in the United States in the late eighteenth century, but it was not until 1973, with the registration of the CBOE as a securities exchange and the introduction of standardized options, that options began to attract large numbers of public participants. A class of options consists of all call contracts on the same underlying interest. A series of options is; all contracts of the same class having the same expiration date and exercise price. *. 286Repurchase agreements (“repos”) and reverse repurchase agreements (“reverse repos”or“reverses”) are very similar to secured loans. In a repo, the borrower sells securities and agrees to repurchase equivalent securities from the other party (i.e., the lender) at a future date. The securities are either repurchased at the same price, with charges representing an agreed upon interest rate added to the principal at the maturity of the contract, or at a (predetermined) price higher than the sale price calculated to provide for an appropriate interest payment, or repo rate. A reverse repo is simply a repo looked at from the lender's side; for example, a dealer lending money and receiving securities has entered into a re-verse repo. There is currently no central marketplace for repo and reverse repo transactions; those transactions are generally arranged over-the-counter by telephone. While repos typically involve United States Treasury and agency securities, any asset that the supplier of funds is willing to accept may serve as the basis for the repo. Repose and reverse repos can be over-night, for a longer specified period (term repos), or open. Open repos generally can be terminated by either side on one business day's notice. Taxation of financial products in general: This section discusses various types of corporate stock and debt securities interest and tax considerations for these interests. Neither the Code nor the regulations provide a useful definition of“stock.”Stock has generally been defined, however, as an equity interest in a corporation, either common or preferred, voting or nonvoting. Stock is frequently classified as common stock for tax purposes if it is an equity interest with an unrestricted right to participate in the growth of a corporation. Common stock represents ownership of a corporation.“In general, the common stock bears the risk of full loss and enjoys the benefit of future appreciation. 287Repurchase agreements (”repos“) and reverse repurchase agreements (”reverse repos“ or ”reverses“) are very similar to secured loans. In a repo, the borrower sells securities and agrees to repurchase equivalent securities from the other party (i.e., the lender) at a future date. The securities are either repurchased at the same price, with charges representing an agreed upon interest rate added to the principal at the maturity of the contract, or at a (predetermined) price higher than the sale price calculated to provide for an appropriate interest payment, or repo rate. A reverse repo is simply a repo looked at from the lender's side; for example, a dealer lending money and receiving securities has entered into a re-verse repo. There is currently no central marketplace for repo and reverse repo transactions; those transactions are generally arranged over-the-counter by telephone. While repos typically involve United States Treasury and agency securities, any asset that the supplier of funds is willing to accept may serve as the basis for the repo. Repose and reverse repos can be over-night, for a longer specified period (term repos), or open. Open repos generally can be terminated by either side on one business day's notice. Taxation of financial products in general: This section discusses various types of corporate stock and debt securities interest and tax considerations for these interests. Neither the Code nor the regulations provide a useful definition of ”stock.“ Stock has generally been defined, however, as an equity interest in a corporation, either common or preferred, voting or nonvoting. Stock is frequently classified as common stock for tax purposes if it is an equity interest with an unrestricted right to participate in the growth of a corporation. Common stock represents ownership of a corporation. ”In general, the common stock bears the risk of full loss and enjoys the benefit of future appreciation. 287Distinctions between preferred stock and debt are also relevant in determining whether a merger or corporate acquisition qualifies as tax free reorganization under. To qualify for tax free treatment the shareholders of the corporation to be acquired must, to some extent, continue to have an interest in the enterprise after the merger. The two major tax questions with respect to preferred stock redemption's are whether mandatory redemption provisions reclassify stock as dept. and whether a periodic redemption is subject to the rules of I.R.C.. Convertible stock is typical ly(although not always) preferred stock that is convertible into common stock of the issuing corporation. The taxation of convertible stock is not governed by any single Code provision. Rather, one must look to various Code provisions, Treasury regulation often conflicting judicial decisions, and IRS pronouncements to ascertain the appropriate tax treatment of convertible stock. Simply stated, conversion is the exchange of one security for another. In general, the act of converting one type of stock into another type of stock in the same corporation is tax free to both the issuer and the owner of the stock. Stock con-versions have generally been viewed as tax-free even though there is no explicit Code section authorizing such treatment. The rationale treating the conversion of preferred stock into common stock of the same corporation as tax-free is that the conversion qualifies as a Type e reorganization (i e recapitalization) under. Although the Code does not define“recapitalization”the term has been used to describe a reshuffling of a capital structure within the framework of an existing corporation. When convertible preferred stock sells at substantial premium to the market price of the comrnpn stock into which it is convertible, a purchase of the preferred stock may arguably 288represent an investment in the issuing corporation's common stock. As result, a subsequent conversion might be regarded under I.R.C. 1036, as a tax-free exchange of common for common. Generally debt securities maybe divide in to four types. We discusses the special tax that apply to tax-exempt taxable securities in follows sections;“original issue discount”,“market discount bond”,“purchase premiums”and“zero coupon securities”In general, interest expense on debt securities is deductible for tax purposes(subject to the on investment interest and personal interest) and includable in the income of the holders of the debt securities. Dividends paid on corporate stock are not deductible by the issuer, although certain corporate shareholders are eligible for the intercorporate dividends received deduction. As a result, many corporations have favored the issuance of debt over stock issuance's to raise additional funds. Original Issue Discount (OID): is the difference between the issue price of a dept. security and it's stated redemption price at maturity. The OID method used to adjust the issue price depends on the date the security is issued and whether is a corporate government, short-term or tax-exempt security. The taxpayer's basis in a security is increased by the amount of OID included in his income. If there was an intention (at the time of issuance) to call the debt security before maturity, gain on the sale or redemption of debt securities is treated as interest to the extent of the OID, minus that portion of the OID previously included in income. Redemption's pursuant to a mandatory sinking fund may evidence an intent to call debt securities before maturity. A mandatory sinking fund can also accelerate the inclusion of OID under the rules that apply to debt securities with serial maturity provisions as well. Gain realized 289on the exchange of OID debt securities issued with an intention to call the securities before maturity is not taxed as ordinary income if the gain is not other wise recognized because of a nonrecognition Code provision such as I.R.C. The issuer can deduct interest payments when paid on the deferred portion although the issuer can never deduct interest paid on the nondeductible portion. A corporate holder of an applicable high yield discount obligation can qualify for the intercorporate dividends received deduction. In general, I.R.C. 163(e)(5)(B)(i) provides that solely for purposes of I.R.C. 243, 245, 246, and 246A,“the dividend equivalent portion of any amount incredible in gross income of a corporation under I.R.C. 1272(a) in respect of an applicable high yield discount obligation shall be treated as a dividend received by such corporation from the corporation issuing such obligation. ”The“ dividend equivalent portion ”is" the portion of the amount so incredible. This means that a corporate holder reports as interest income all OID calculated under I.R.C. 1272 and it might also be entitled to the intercorporate dividends received deduction under I.R.C. 163(e)(5)(B). A purchase premium is the amount that a purchaser pays to acquire a debt security in excess of its face value. A purchaser may be willing to buy a debt security at a premium if the security's interest rate or yield to maturity exceeds current market interest. Bond premiums paid on taxable debt securities are deductible A taxpayer can elect, on taxable bonds only, to deduct the amount of the amortizable premium for the taxable year in computing taxable income. If taxpayer does not elect to amortize premiums, he reports a loss on redemption. Such a loss is either capital or ordinary, depending on whether the debt security is a capital or 290ordinary asset in his hands. For a discussion of the tax treatment of bond premiums paid on tax-exempt securities. Zero coupon securities are debt securities payable without interest at a fixed maturity date. Owners of taxable zeros report income on interest earned on a yearly basis. The United States Treasury issues STRIPS, and some brokerage firms and federal government agencies also issue taxable zeros. In addition, there are certificate of deposit zeros that are insured by the FDIC and corporate zeros. Finally, there is a market for zero coupon convertible bonds. Treasury securities include both marketable securities (i.e., Treasury bills, notes, and bonds)and nonmarketable securities (e.g., savings bonds).With some exceptions discussed in this section, Treasury securities are generally treated for federal income tax purposes in the same way as other debt securities. Treasury securities, however, are exempt from all taxes imposed by state and local governments, except for estate or inheritance taxes, franchise taxes, and other nonproperty taxes imposed on corporations. Interest income earned on Treasury securities issued. Pass-through certificates, typically ownership interests in trusts-represent undivided ownership interests in each asset making up the pool. This characterization can be significant for mutual savings banks, cooperative banks, domestic building and loan associations, and other savings institutions as defined in I.R.C. A pass-through certificate owner, as the beneficial owner of each underlying asset, should technically calculate income or loss on each asset separately. As a practical matter, however, allocation to each asset Is; usually not necessary because the tax results are usually the same ir the assets are viewed separately or in the aggregate. 291A certificate owner's gain or loss on the sale of a passthrough certificate is based on the difference between the certificate's tax basis and the net proceeds on the sale. In-vestors and traders obtain capital gain or loss, reduced by any gain attributable to interest or discount income, which is taxable at ordinary income rates. Dealers, hedgers, and certain financial institutions obtain ordinary income. The taxation of pass-through certificates purchased at their principal amounts is relatively straightforward. The only interest elements is the stated interest amount. Principal payments are a tax-free return of capital. Pay-through bonds are the debt obligations of corporate and owner truest issuers, which means that an owner of a pay-through bond simply owns a debt security subject to all of the tax rules that generally apply to debt securities. In brief summary, a pay-through bond owner does not own an interest in the underlying assets used to collateralize the loan. Pay-through bond owners are taxed on the payments they receive from the entity that issues the pay-through bonds (for cash method taxpayers) or as they accrue (for accrual method taxpayers), not on the payments the entity is entitled to receive on the pooled assets it owns. The tax rules that apply to owners of debt securities turn on whether the securities are purchased at their principal amount, purchased at premium, or purchased at a discount. As a result, it is necessary to separately consider the tax treatment of pay-through bonds purchased in these ways to determine the appropriate tax treatment for an owner of a pay-through bond. The remainder of this section highlights these issues. Taxation of financial products in Turkey: In general, the provisions related to the taxation of financial instruments and to the tax exception or exemptions 292A certificate owner's gain or loss on tne saie of a passtnrougn certificate

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