Because a limited liability company partner's liability for public debts creates a debt relationship, it also affects inheritance
Y.D., whose heir the applicant is as the surviving spouse, was a 1/2 partner and the manager authorized to represent a limited liability company (the Company) registered on April 20, 2004, when he died on July 6, 2004.
The Social Security Institution (SGK) initiated enforcement proceedings to collect a debt consisting of premiums, unemployment insurance premiums and stamp duty that the Company had not paid from March 2007 to December 2008.
Payment orders were issued separately in the names of the Company and its partners, but they could not be served on the Company because its premises at the registered address were closed. A new payment order issued in the applicant's name on May 21, 2012 was served on the applicant on May 30, 2012.
The documents attached to the individual application form do not include a document showing when the Company was struck off the trade registry. However, it is understood from the petition dated July 25, 2016, which the applicant's counsel submitted during the proceedings to be forwarded to the Court of Cassation, that the Company was struck off the registry on September 24, 2013.
On June 6, 2012, the applicant filed an action for the annulment of the payment orders. The statement of claim stated that the debt subject to the payment order belonged to the Company in which the late spouse had been a partner and arose after the spouse's death, that the applicant had no position within the Company because she was not aware of it, and that she therefore could not be held liable for the debt.
On October 24, 2013, the court accepted the action on the grounds that, since it could not be proven that the applicant had acquired the status of partner after the death of the decedent partner, she could not be held liable for debts arising after that date.
The defendant SGK appealed the judgment. By its decision of October 24, 2014, the Court of Cassation 10th Civil Chamber (the Chamber) reversed the judgment so that a decision could be made after determining whether the debt had been restructured under the new legislation that entered into force on September 11, 2014.
Complying with the reversal decision, the court asked the applicant whether she had applied for restructuring and then accepted the action a second time on the same reasoning as in its decision of October 24, 2013.
The defendant SGK appealed this judgment as well. On May 14, 2015, the Chamber reversed the first instance decision a second time. In its second reversal decision, the Chamber pointed out that the court had to investigate whether the applicant had renounced the inheritance, whether she had acquired partner status by inheriting the share of her spouse who was a partner in the limited liability company, and accordingly whether she was liable for the debt.
Following the proceedings conducted in line with the reversal decision, the court dismissed the action on the grounds that the applicant had acquired partner status by not renouncing the inheritance of her spouse, who had died while a partner of the Company, and was therefore liable for the Company's unpaid debt. Because of the dismissal, it also ordered compensation of 5,459.19 TL to be collected from the defendant.
The applicant appealed the judgment, which the Chamber upheld and which became final on November 1, 2016.
Our law firm brought this matter before the Constitutional Court by individual application on the grounds that the right to property had been violated.
The Constitutional Court rejected the application by its decision under Application No. 2016/74015, dated June 13, 2019.
In this situation, the fact that the inheritance had not been renounced was decisive in the outcome.
In its decision, the high court stated:
Considering that the debtor Company was struck off the registry on September 24, 2013, and that the payment orders sent before then were returned because the premises at the stated address were closed, it is clear that the debt could not be collected from the Company. Because of the social security premium and late payment surcharge debt for part of 2007 and all of 2008, which could not be collected from the Company, the administration also held liable the applicant, who had acquired partner status by inheritance, together with the other partners, and sent her a payment order. Considering that the applicant is a partner of the company and that this debt was not paid by the Company, it was concluded that the interference with the applicant's right to property did not impose an excessive and extraordinary personal burden on her and that the fair balance required between the applicant's right to property and the public interest was not upset. It is therefore clear that the right to property was not violated.
On this basis, the Court ruled that the application was inadmissible.