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New Rules re. Companies Subject to Independent Audit

This Legal Alert aims at providing you with an overview on recent Council of Ministers’ Decision No. 2018/11597 on Determination of Companies Subject to Independent Audit which was published in the Official Gazette numbered 30432 and dated May 26, 2018 (“New Decision”). Entering into force as of May 26, 2018, the New Decision has repealed the previous Council of Ministers’ Decision No. 2012/4213 on Determination of Companies which will be Subject to Independent Audit dated December 19, 2012 (“Former Decision”).

Please note that this Legal Alert is intended to be general information purposes only. No statement herein contains any opinion or professional legal advice.

I. GENERAL OVERVIEW

The independent audit requirement is mainly based on the relevant provisions of the Turkish Commercial Code No. 6102 dated January 13, 2011 (“TCC”) whereby it is set out for the companies that will be subject to independent audit to be determined through decision of the Council of Ministers which constitutes the basis for the New Decision. Among other changes, compared to the Former Decision, thresholds in general has been set out to be in lower figures in the New Decision which will pave the way for increase in the number of companies to be subject to independent audit requirement.

II. COMPANIES SUBJECT TO INDEPENDENT AUDIT

Pursuant to Article 3 of the New Decision, the following companies shall be subject to independent audit within the framework of provisions of the TCC as well as Statutory Decree No. 660 on Organization and Duties of Public Oversight, Accounting and Auditing Standards Authority dated September 26, 2011:

1.     Without being subject to any thresholds, companies  listed under Annex I of the New Decision as shown in the next column: a.     The following companies among those which are subject to regulations and supervision of the Capital Markets Board (“CMB”) in accordance with the Capital Market Law No. 6362 dated December 6, 2012 (“CPL”):

(i)        Investment institutions;

(ii)        Collective investment institutions;

(iii)        Portfolio management companies;

(iv)        Mortgage finance institutions;

(v)        Asset leasing companies;

(vi)        Central clearing houses;

(vii)        Central depository institutions;

(viii)        Data storage institutions;

(ix)        Rating agencies;

(x)        Valuation institutions;

(xi)        Joint stock companies (anonim şirket) capital markets instruments of which are traded on stock exchange or other organized markets or which have offering circular or issuance certificate with a validity period approved by the CMB to be traded on stock exchange or other organized markets;

(xii)        Joint stock companies which are not traded on stock exchange or other organized markets but issue capital market instruments, except for shares, without being offered to public (until the end of accounting period during which issued capital market instruments are redeemed) or joint stock companies having issuance certificate with a validity period approved by the CMB for these purposes.

b.    The following companies among those which are subject to regulations and supervision of the Banking Regulation and Supervision Agency (“BRSA”) in accordance with the Banking Law No. 5411 dated October 19, 2005:

(i)        Banks;

(ii)        Rating agencies;

(iii)        Financial holding companies;

(iv)        Financial leasing companies;

(v)        Factoring companies;

(vi)        Financing companies;

(vii)        Asset management companies;

(viii)        Companies holding qualified shares in the financial holding companies, as described under Banking Law No. 5411.

c.     Insurance, reinsurance and pension companies operating within the scope of Insurance Law No. 5684 dated June 3, 2007 and Individual Pension Savings and Investment System Law No. 4632 dated March 28, 2001.

d.    Companies engaged in production or trade of precious metals, precious metals intermediary institutions, authorized organizations which are permitted to operate in Istanbul Stock Exchange (Borsa Istanbul) markets.

e.     Storage enterprises established in accordance with Agricultural Products Licensed Storage Law No. 5300 dated February 10, 2005 and public warehouses established in accordance with Public Warehouses Law No. 2699 dated August 11, 1982.

f.     Media service provider organizations holding at least one of the following rights or licenses:

(i)        Right to make national television broadcasting from terrestrial environment;

(ii)        Satellite television broadcasting license;

(iii)        Cable television broadcasting license for multiple provinces.
2.     Other companies exceeding at least 2 out of 3 relevant thresholds for two consecutive accounting years as shown in the next column:

Note: Companies shall be taken into account along with their subsidiaries and affiliates  in the determination of whether or not such thresholds are exceeded

 a.     Thresholds for the companies capital market instruments of which are not traded on a stock exchange or other organized markets but considered as publicly-held as per the CPL:

(i)        Assets total of TRY 15 million.

(ii)        Annual net sales revenue of TRY 20 million.

(iii)        Employee number of 50 persons.

b.    Thresholds for the companies listed in Annex II of the New Decision (please refer to below for a list of such companies):

(i)        Assets total of TRY 30 million.

(ii)        Annual net sales revenue of TRY 40 million.

(iii)        Employee number of 125 persons.

c.     Thresholds for all other companies that do not fall under items (a) and (b) above:

(i)        Assets total of TRY 35 million.

(ii)        Annual net sales revenue of TRY 70 million.

(iii)        Employee number of 175 persons.

The Companies listed under Annex II of the New Decision

  1. Companies whose at least 25% of share capital is directly or indirectly held by professional organizations having the qualification of public institutions, associations, foundations, cooperatives and their higher institutions;
  2. Companies publishing nation-wide daily newspapers;
  3. Except for the call center companies, companies which are subject to regulations and supervision of Information Technologies and Communications Authority in accordance with Electronic Signature Law No. 5070 dated January 15, 2004, Electronic Communication Law No. 5809 dated May 9, 2013 and Article 1525 of the TCC.
  4. Companies operating as subject to Energy Market Regulatory Authority by obtaining license, certificate or authorization document from the Authority;
  5. Except for the companies listed under Annex I:
    1. Savings Deposit and Insurance Fund (“SDIF”) affiliates, and companies whose supervision and management are taken over by the SDIF within the ambit of the former Banks Law No. 4389 and Banking Law No. 5411;
    2. Companies whose at least 50% of share capital is held by municipalities as well as public economic enterprises and their subsidiaries operating within the ambit of the Statutory Decree No. 233 on Public Economic Enterprises.