E-Notification Decision of the 3rd Chamber of the Council of State; Notification Based on an Annulled Power Has No Effect

Council of State, 3rd Chamber, 06.04.2026, E. 2024/4288, K. 2026/1632

The Constitutional Court had annulled the e-notification power granted to the Ministry in Article 107/A-3 of the Tax Procedure Law (Official Gazette 03.04.2026) and postponed the entry into force of its decision by nine months. The comfort of “not yet applicable” was not accepted by the Council of State.

The rule of non-retroactivity in Article 153/5 of the Constitution exists to protect vested rights; it does not exist to legitimise the application of a norm found unconstitutional in pending cases. The opposite reading would render the referral mechanism in Article 152 ineffective. E-notifications made under the provisions of General Communiqué No. 456 that rest on the annulled power produce no legal effect; the payment order does not become final and there is no public receivable that has reached the attachment stage.

This can also be carried to the assessment stage. If the time limit for suing has been missed, counted from the date of service of the notice of assessment, the decision can be relied on to bring an action against the assessment. Payment orders and attachments based on e-notification thus became open to challenge one by one in pending cases until 3 January 2027.

The decision was taken by majority and carries a dissenting opinion; how it will be tested before the Plenary Session of the Tax Chambers therefore matters too.