Although the company shares registered on the debtor of the property regime are personal property, the dividends, capital increases, reserves and the immovable property etc. purchased with the dividends obtained from the company shares are the subject of the lawsuit regarding the liquidation of the property regime, since they are acquired property. To elaborate on the subject;
If the dividends related to the company shares that are income dividends in the companies and are the personal property of the spouse are not distributed or if the dividend that is not distributed is added to the capital as monthly, these undistributed dividends will be included in the liquidation account unless otherwise agreed by the spouses since these dividends are considered as acquired property under Article 219/2 b.4 of the TMK.
“II. Acquired property
Article 219- Acquired property is the assets acquired by each spouse during the continuation of this property regime.
The acquired property of a spouse is in particular
- Acquisitions in return for work,
- Payments made by social security or social welfare institutions and organizations or by funds and similar funds established to help personnel,
- Compensation for loss of earning capacity,
- Income from personal property,
- Substitutes for acquired assets.”
As a matter of fact, in the case law of the Court of Cassation, it is stated that dividends and dividends on company shares, which are personal property, are acquired property as the income of personal property.
Decision of the 8th Civil Chamber of the Court of Cassation No. 2016/17198 E., 2018 / 2777 K:
“…it was erroneous to decide only on the undistributed dividend without conducting sufficient research on whether the company subject to the lawsuit has made a capital increase for each year between 01.01.2002-19.09.2009 during the period of the regime of participation in acquired property, whether the dividend has been added to the capital, whether the dividend has been added to the capital, according to the balance sheet of the company, whether the profit subject to distribution is available or not, whether the dividend has been converted into investment or not, and if the capital increase has been made, whether it has been covered from the acquired property or not. In that case, the work to be done by the court is to investigate whether the capital increase of the company made on 25.10.2004 by the reversal, whether the capital increase made on 25.10.2004 was covered from the acquired assets, and to calculate the participation receivable according to the result, but it was erroneous to decide writing with incomplete research, and it required reversal.”
Similarly; the 8th Civil Chamber of the Court of Cassation in its decision numbered 2016 / 507 E. 2016 / 13581 K;
“…On the other hand, among the companies mentioned in the petition for declaration by the plaintiff … Çelik Sanayi ve Ticaret A.Ş, … Ziraat Aletleri Sanayi ve Ticaret A.Ş, Aygüpaş … Gıda Üretim ve Pazarlama A.Ş. and … Industry and Trade Ltd. Şti. it is understood that the defendant spouse is a shareholder in the companies. Although the profit and loss status of the said companies between 2002-2005 was reported in the financial statements and tax records brought between the file, it is understood that no investigation has been made as to whether the income obtained from the said companies has been converted into investment or not, whether capital increase has been made or not.
…in terms of the four companies mentioned above, the balance sheets of the companies for the period between 01.01.2002 and 20.10.2005 when the property regime ended.2005, the balance sheets of the companies for the period between 01.01.2002 and 20.10.2005, when the property regime was terminated, and a report from an expert accountant and a financial advisor expert was obtained to determine whether the profit obtained in the same period was converted into investment and whether it was used in capital increase, and after all the evidence was collected, it was necessary to make a decision in line with the claim and defense by taking into account whether there was company income in the specified period, if there was income, whether it was available at the time of the termination of the property regime, and if the income was realized but not available, whether it was found to be in accordance with the ordinary course of life, but it was erroneous to establish a judgment with incomplete research and examination.”
Decision of the 8th Civil Chamber of the Court of Cassation No. 2012 / 5212 E., 2013 / 3549 K;
“On the other hand, as a rule, shares in companies are not considered as acquired property. However, the money (income) of the shares, which are characterized as profits saved over the years are considered as acquired property as a rule. In this case, in terms of company shares, it is not correct to calculate in terms of property regimes based on the amount of shares in the company. Since the amounts from 01.01.2002 until 18.11.2005, when the divorce case was filed, are acquired property in terms of monetary amounts in the form of profits that can be saved and based on the return of the shares, it should be considered to calculate them.”
In the practice of the Court of Cassation, if the paid dividend is not available on the date of the termination of the property regime, after determining and subtracting all the evidence collected in line with the claim and defence, the economic and social status of the family, the standard of living and the reasonable amount accepted to be used for family expenses according to the ordinary course of life, it should be ruled that the remaining amount should be considered in the liquidation of the property regime.
In terms of the undistributed profit of the company subject to the liquidation of the property regime, the Court of Cassation states that a detailed examination should be made, and emphasizes that it should be investigated whether the income obtained in the company has been converted into investment or not, and whether there has been a capital increase or not.
The decision of the 8th Civil Chamber of the Court of Cassation No. 2015/16136 E. 2016/5743 K;
” …Although the court has determined the contribution claim in writing on the grounds that 572 shares are acquired property due to the capital increase of the company subject to the lawsuit between 02.06.2000 and 18.05.2004 due to the capital increase of the company between 02.06.2000 and 18.05.2004, the court has determined the participation claim in writing over the share value on the grounds that 572 shares are acquired property, taking into account the share change of the defendant spouse (1240/2000-668/1120), but as it is clearly seen, it is a material error to determine the acquired share as 572 due to the difference of the denominators, as well as whether the capital increase was made between the dates described above, if it was increased, from which property group it was met, whether the profit was used in capital increase or investment, it was not properly investigated.01.01.2002 until 28.05.2003 when the property regime ended and the liquidation claim of the plaintiff was not duly determined.
In that case, the court should investigate whether there was a capital increase between 01.01.2002 and 28.05.2003 when the property regime ended in 2003, the defendant’s share in the company and the number of shares owned during the period of the regime of participation in acquired property should be duly determined, the balance sheets of the company should be obtained and it should be determined whether the profit obtained during the period was added to the capital through an expert board to be formed by 2 financial advisors and an accountant, and the liquidation receivable should be duly determined by taking into account the vested rights of the plaintiff, and then a decision should be made about the dispute, but it was not correct to decide in writing with incomplete research.”
Similarly; the Court of Cassation 8th H.D. decision numbered 2013/16134 E., 2015/1094 K;
“… although the participation claim of the plaintiff was determined by taking into account the defendant’s share ratio over the company’s capital, retained earnings and profit reserves after deducting the net losses for the period 01.01.2002-19.09.2009.2009, after deducting the net losses for the period, the participation claim of the plaintiff was determined by taking into account the share rate of the defendant over the company’s capital, retained earnings and profit reserves, whether the capital increase was made for each year during the period in question, whether the dividend was added to the capital, whether the profit share was added to the capital, whether there was a profit for distribution according to the company balance sheet,It has not been duly investigated whether the dividend has been converted into investment or not, and if the capital increase has been made, whether it has been covered from the acquired assets or not, the assets of the company balance sheet that are the basis for profit distribution have not been determined, and if necessary, the credit based on the liquidation of the property regime has not been duly determined by obtaining a report open to inspection from the expert expert expert board.”
Decision of the 8th Civil Chamber of the Court of Cassation No. 2013 / 23659 E., 2015 / 587 K;
“Separately from this; the balance sheets of the company for each year for the period after 01.01.2002 should be obtained and the active assets of the company should be determined by investigating whether the company has active assets, whether there is an increase in the capital and assets of the company after 2002, whether the profits are added to the capital, whether the profit distribution is made or not, whether the company has debts in the period related to the liquidation of the property regime or not, the source and where the 212.180 TL. from the balance sheet, the source and where it went, the claimant’s contribution receivable in terms of jewelry, the claimant’s contribution receivable over the company income after 2002, if necessary, a new report should be obtained from the expert expert committee, and a decision should be made according to the result to be obtained afterwards, but it was not deemed correct and accurate to make a decision as written at the end of insufficient research and examination.”
Within the legal property regime, in the event of a capital increase by the spouse who is the shareholder of the company share, which is the personal property of the spouse, by paying cash capital, this capital paid will be considered acquired property by the presumption of acquired property unless proven otherwise, and this capital will be included in favour of the other spouse in the value liquidation account related to the capital increase unless proven otherwise.
The 8th Civil Chamber of the Court of Cassation in its decision numbered 2016 / 4248 E., 2018 / 14780 K;
“…Although it is undisputed that the defendant became a shareholder in the company on 20.03.2001 before the marriage and that his share in the company is his personal property, it should be accepted that the capital increase made during the period when the regime of participation in acquired property was valid was covered from the acquired property since it could not be proved otherwise and therefore the plaintiff has the right to participation claim.”
However, if the capital increase is realized from the profit of the spouse’s company share, which is personal property, the value of this increase will be included in the liquidation account as acquired property value within the scope of the income of the personal property.
If the spouses have shares in more than one company, all companies subject to the property regime liquidation case should be evaluated separately and it is necessary to determine whether the claimant spouse has a participation claim separately for each company.
The Court of Cassation also stated that “it is understood that the companies are evaluated collectively erroneously. The above-mentioned principles should be evaluated by applying the above-mentioned method separately for each company and according to the result, it should be determined whether there is a residual value based on the participation claim separately for each company with an expert committee report suitable for the audit of the parties, the court and the Court of Cassation…”
The shares of this company, which are the acquired property of the defendant of the claim for contribution, enter into liquidation at their current market value on the date of liquidation. With the decision of the 8th Civil Chamber of the Court of Cassation dated 2016/202 E., 2016/10960 K., dated 21.06.2016, the method to be applied in determining the company values is determined as follows:
“From the examination of the expert reports, in the calculation of the participation receivable, the values based on the balance sheets based on the trial balance prepared by the tax procedure law were taken into consideration. However, these determined values do not meet the market value of the companies subject to liquidation. (…)) The expert committee consisting of financial advisors, economists, experts in corporate law, and experts in the field of valuation of the company to be selected by the court should first examine the balance sheets, information, documents and data of the company on the date of the termination of the property regime, that is, on the date of the divorce case; The situation of the sector in which the company is located, the capital status of the company subject to liquidation, asset structure, liquidity status, profit potential in the future, plans for the future, technology used by the company, machinery and equipment status, production capacity of the company, order status, brand value, current and future estimated performances of the company should be utilized to determine the appropriate and reasonable release values of the company in the free market according to the supply and demand rules of the economy.”
In this context, in addition to the current position of the companies subject to the lawsuit, the future profit potential, active status in the sector, the company’s machinery and equipment, production capacity, order tables, customer environment and brand value should also be determined.
In this case, it is necessary to determine the value of the company shares subject to the lawsuit according to the methods mentioned above and to determine the participation receivable according to the result.
