In commercial relationships based on the sale of movable goods and the performance of services, one of the most common disputes is whether the goods invoiced or the services performed were actually delivered to the buyer and, accordingly, whether the obligation to pay the price has arisen. Wholesalers, raw material suppliers, gas cylinder and food distributors in particular, as well as service providers offering plumbing, installation, electrical and mechanical maintenance services, may face the debtor’s defence “I never received such goods or services” when they are unable to collect the price of the goods or services they have supplied.
For businesses operating throughout Turkey, and especially in the Antalya and Alanya region where supply chains serving tourism businesses, hotel purchasing cycles and construction subcontracting activities are intensive, this situation can cause financial losses that are difficult to recover. So, in relationships between merchants, does the unilateral issuance of an invoice by one party, or the recipient’s failure to object to that invoice within the statutory period, prove delivery by itself? Or does the debtor’s recording of the invoice in its own commercial books and declaring it to its tax office through Form Ba (Purchase Notification Form) create a legal presumption that delivery took place?
This article examines the presumption of delivery, the shifting of the burden of proof and the creditor’s methods of collecting its receivable in the light of the provisions of the Turkish Commercial Code No. 6102 (TTK), the Turkish Code of Obligations No. 6098 (TBK), the Turkish Civil Code No. 4721 (TMK), the Code of Civil Procedure No. 6100 (HMK) and the Tax Procedure Law No. 213 (VUK), together with the settled decisions of the 11th Civil Chamber of the Court of Cassation (Yargıtay) and the Regional Courts of Appeal.
1. The Legal Nature of the Invoice and the Burden of Proving Delivery of Goods
A. The Legal Nature of the Invoice and Acceptance of Its Content (TTK Art. 21/2)
Under TTK Art. 21/1, an invoice is a statement of account and confirmation document issued by a merchant who sells or produces goods, performs work or provides a benefit in the course of its commercial enterprise, and which the other party may request. Under TTK Art. 21/2, a person who receives an invoice served on him and does not object to its content within eight days of service is deemed to have accepted the content of the invoice (type of goods, unit price, quantity and total price) as being in conformity with the contract.
As indisputably accepted in legal doctrine and settled case law, this 8-day statutory objection period in TTK Art. 21/2 creates a legal presumption only with respect to the “contents” of the invoice. By contrast, the fact that no objection was raised against the invoice in time, or that it was issued unilaterally by the seller, does not by itself prove that the goods covered by the invoice were actually delivered to the buyer or that the service stated in the invoice was fully performed.
B. The Basic Rule: The Burden of Proving Delivery of Goods and Services Lies with the Seller
Under TMK Art. 6 and HMK Art. 190/1, as a rule the burden of proof lies with the party who derives a right in its favour from the legal consequence attached to the alleged fact. Under TBK Art. 207, in a sales contract the seller’s primary obligation is to transfer possession and ownership of the item sold to the buyer, and the buyer’s primary obligation is to pay the agreed purchase price. Similarly, in contracts for work and services, the contractor must document that it has performed its obligation fully and free of defects in order to become entitled to payment. Consequently, a seller or service provider claiming a receivable based on an invoice is obliged to prove that it duly delivered the goods or services to the buyer.
Indeed, this basic rule was clearly emphasised in a decision of the 12th Civil Chamber of the Istanbul Regional Court of Appeal:
“As a rule, the burden of proving delivery of the goods or services that are the subject of the invoice lies with the claimant seller, and unless supported by legal evidence, the invoice and the claimant’s book entries alone do not prove the existence of the receivable.”
In judicial practice it is consistently accepted that an invoice alone is not proof of a receivable, that the underlying delivery relationship on which the invoice is based must be proven, and that the mere recording of the invoice in the seller’s own commercial books does not create a presumption of delivery against the buyer.
2. Declaration of the Invoice (Form Ba and Book Entries) and the Presumption of Delivery
A. The Legal Meaning of the Form Ba Notification under the Tax Procedure Law
In commercial disputes, the most decisive element in proving delivery is the financial declarations made by the buyer/debtor to the official authorities. Under the general communiqués of the Tax Procedure Law No. 213 (VUK), taxpayers keeping books on the balance-sheet basis are obliged to notify the Tax Office of purchases of goods and services exceeding a certain amount through “Form Ba” (Purchase Notification).
If the buyer/debtor merchant has entered the invoice issued by the claimant seller in its own statutory commercial books and has notified the tax office of this invoice through Form Ba, the balance and the rules of proof change fundamentally in terms of procedural law. This is because, in its official declaration to the state, the merchant has declared that it obtained these goods or services from the seller for the amount stated in the invoice and has deducted it (e.g. as input VAT).
B. The Presumption of Delivery and Admission Against Interest in the Case Law of the Court of Cassation and the Regional Courts of Appeal
In the settled case law of the 11th Civil Chamber of the Court of Cassation and in decisions of the Regional Courts of Appeal, it is accepted beyond doubt that a debtor’s notification of an invoice to the tax office through Form Ba constitutes an “admission against interest” and a “presumption that the goods were actually received”.
Decision of the 11th Civil Chamber of the Court of Cassation dated 29.02.2024 (2022/7519 E., 2024/1622 K.):
“Where the invoices that are the subject of the enforcement proceedings and the action are recorded in the defendant’s commercial books, or have been notified to the tax office to which the defendant is attached through BA forms, it must be accepted that the goods stated in the invoices were delivered to the defendant… the claimant has discharged the burden of proof concerning delivery of the goods, and the BA notification constitutes a presumption of the purchase of goods…”
Decision of the 11th Civil Chamber of the Court of Cassation dated 11.09.2023 (2023/4153 E., 2023/4857 K.):
“It has been held that 16 invoices are recorded in the defendant’s commercial books and also appear in the BA forms notified by the defendant to the tax office, that this information is also recorded in the same way in the claimant’s commercial books, that in this case the claimant delivered to the defendant the goods stated in the invoices in dispute under the contract, thereby discharging its burden of proof concerning delivery of the goods, and that the defendant must prove that it paid the invoice amounts.”
Decision of the 11th Civil Chamber of the Court of Cassation dated 11.06.2024 (2023/2631 E., 2024/4922 K.):
The Chamber once again confirmed that the goods covered by invoices recorded in the Ba forms obtained from the tax office are deemed to have been delivered, and that from this point on the burden of proof passes to the buyer/debtor.
C. The Settled Approach of the Regional Courts of Appeal and Courts of First Instance
The current practice of the Regional Courts of Appeal and the commercial courts is fully in line with this principle adopted by the Court of Cassation:
- Istanbul Regional Court of Appeal, 13th Civil Chamber (2023/1589 E., 2026/320 K.): It was stated that the goods stated in an invoice notified by the defendant to the tax office through Form Ba are presumed to have been delivered to the defendant, and that the contrary of this presumption can only be proven by conclusive written evidence.
- Istanbul Regional Court of Appeal, 13th Civil Chamber (2021/1755 E., 2024/274 K.): It was expressly stated that the notification of an invoice to the tax office as a purchase is in itself a presumption of delivery, and that even the fact that the invoice is not recorded in the buyer company’s physical books does not change this result.
- Bakırköy 1st Commercial Court of First Instance (2024/144 E., 2024/1153 K.): It was held that the buyer’s declaration of the invoice through Form Ba constitutes a presumption that the goods and services stated in it were delivered and received, and that the burden of proving otherwise passes to the debtor.
- Istanbul 14th Commercial Court of First Instance (2020/717 E., 2022/145 K.): It was concluded that the Ba forms submitted by taxpayers to the tax authority are binding on them and have the nature of a binding admission against their interest.
Is There Any Case Law to the Contrary?
A review of court decisions reveals no settled case law to the contrary that upholds a buyer merchant’s abstract defence that it “did not receive” the goods covered by an invoice that it voluntarily notified to the tax office through Form Ba, or that holds that Form Ba does not create a presumption of delivery. The Turkish judiciary regards the Ba notification as one of the strongest factual and legal presumptions that delivery has taken place.
3. Shifting of the Burden of Proof and the Debtor’s Defence of Payment
A. The Burden of Rebutting the Presumption (HMK Art. 190/2)
Under HMK Art. 190/2, a party relying on a legal or factual presumption is only obliged to prove the fact on which the presumption is based; the burden of proving the contrary of the presumption passes directly to the other party. A debtor who has included the invoice in its Form Ba or recorded it in its commercial books can no longer raise the claim “The goods were not delivered to me” through abstract statements. The burden of rebutting the presumption lies with the debtor, and under Art. 200 of the HMK No. 6100 this claim can only be proven by conclusive written evidence.
B. The Defence of Payment and the Requirement of Conclusive Evidence (HMK Art. 200)
Once the fact of delivery is established on the basis of a presumption through Form Ba or commercial book entries, the buyer’s obligation to pay the purchase price becomes due under TBK Art. 207. At this stage, if the debtor raises the defence “I received the goods, but I paid the price by hand or in cash”, the burden of proving the payment lies exclusively with the buyer/debtor.
Due to the limit for proof by written instrument in HMK Art. 200, such a defence of payment in commercial relationships can never be proven by witness testimony. The debtor must document the payment with conclusive written evidence such as a bank receipt, a collection receipt signed by the seller or a release (discharge) document. Otherwise, the debt is deemed unpaid.
4. Comparison Table of the Means of Proving Delivery and Their Legal Force
The main means of evidence used in practice to prove a commercial receivable, their legal nature and their effect on the burden of proof are summarised in the table below:
| Evidence / Type of Transaction | Legal Basis | Legal Nature | Does It Prove Delivery? | Direction of the Burden of Proof |
|---|---|---|---|---|
| Unilateral Service of Invoice | TTK Art. 21/2 | Statement of account and confirmation document | No (binds only as to its contents) | The burden of proving delivery lies with the seller |
| Signed Delivery Note / Service Form | VUK Art. 230, HMK Art. 199 | Written evidence / delivery document | Yes (direct proof of delivery) | The burden of proving payment passes to the debtor |
| Debtor’s Form Ba Notification | VUK General Communiqués | Admission against interest and presumption of delivery | Yes (settled presumption of the Court of Cassation) | The burden of proving non-receipt passes to the debtor |
| Debtor’s Own Book Entry | HMK Art. 222, TTK Art. 83 | Evidence by commercial books / admission | Yes (evidence against its owner) | The burden of proving payment passes to the debtor |
| Open Invoice (Stamp/Signature at the Top) | Commercial Custom / TTK Art. 21 | Presumption that the price has not been paid | Does not prove delivery by itself | Non-payment is presumed; delivery must be proven |
| Closed Invoice (Stamp/Signature at the Bottom) | Commercial Custom / TTK Art. 21 | Presumption that the price was paid in advance | Creates a presumption of payment against the seller | The burden of proving otherwise by written evidence passes to the seller |
5. A Guide to Proving and Collecting Receivables for Suppliers of Goods or Services
The steps that wholesalers, food suppliers, construction material sellers and technical service providers operating particularly in Alanya, Manavgat and Antalya should follow in order to secure and collect their receivables are as follows:
A. Preventive Measures to Be Taken at the Delivery Stage
1. Issuing a Delivery Note with a Wet Signature and a Dispatch Invoice:
When delivering goods, the invoice alone should not be relied upon; a delivery note bearing the name, surname, Turkish ID number/trade name and wet signature of the buyer/debtor itself, or of the employee authorised to receive on behalf of the company, must always be issued.
2. Service and Installation Report in Service and Work Contracts:
Craftsmen carrying out plumbing, air conditioning, piping, mechanical or repair work should, upon completion of the work, draw up a “Service/Installation and Delivery Report” signed by the debtor, stating that the work has been delivered complete and in working order. This provides vital protection in terms of documentation against defect claims in work contracts and technical performance processes.
3. Paying Attention to the Distinction Between Open and Closed Invoices:
According to commercial custom, stamping and signing the bottom of an invoice creates a presumption that the price has been collected in advance (closed invoice), while stamping and signing the top creates a presumption that the price has not yet been paid (open invoice). In transactions where the price is payable on credit or will be posted to a current account, the bottom of the invoice must never be signed; a signature made by mistake must not hand the debtor a presumption that “the price has been paid”.
B. Court and Enforcement Proceedings If the Receivable Cannot Be Collected
1. Initiating Enforcement Proceedings Without a Judgment (İİK Art. 58 et seq.):
On the basis of the invoice issued, the delivery note or the current account statement, the creditor should initiate enforcement proceedings without a judgment by way of general attachment against the debtor at the enforcement office under the Enforcement and Bankruptcy Law (İİK).
2. Action for Annulment of Objection (İİK Art. 67):
If the debtor unjustly objects to the proceedings and the debt, an action for annulment of the objection must be brought before the competent Commercial Court of First Instance (or the Civil Court of First Instance acting as a commercial court) within the one-year preclusive period from service of the objection.
3. Requesting a Court Letter to the Tax Office (Strategic Step):
If the creditor does not have a signed delivery note proving delivery, it should promptly ask the court to send a letter to the Tax Office to which the debtor is attached, requesting the Form Ba (Purchase Notification) records and VAT returns for the relevant period. Once tax records establish that the debtor entered the invoice in its Form Ba, the court accepts the fact of delivery as proven.
4. Proper Keeping of Commercial Books (HMK Art. 222):
The opening and closing certifications of the creditor merchant’s commercial books must have been duly made in accordance with the TTK and HMK Art. 222. Duly kept books of the creditor become conclusive evidence in the claimant’s favour when they match the other party’s book entries or Ba notifications.
5. Claiming 20% Compensation for Bad-Faith Denial of Debt:
Receivables based on invoice contents and Form Ba are by their nature liquid (determinable) receivables. Where it is established that the debtor objected in bad faith to an invoice it had declared in its Form Ba, the courts order the debtor to pay compensation for denial of debt (icra inkar tazminatı) of at least 20% of the principal receivable, as well as litigation costs and attorney’s fees.
Conclusion and Legal Assessment
In commercial life, the unilateral issuance of an invoice and its delivery to the recipient is, as a rule, not sufficient to prove delivery. However, the buyer’s recording of the invoice in its statutory commercial books or its notification to its tax office through Form Ba creates a strong presumption proving delivery in the creditor’s favour and a binding admission against interest.
In the face of this presumption, the debtor’s abstract defences that “The goods were not delivered” are not heard; the burden of proof shifts to the debtor. If the debtor cannot prove that it did not receive the goods or that it paid the invoice amount by conclusive written evidence such as a written instrument, bank receipt or payment receipt, it will have to pay the receivable together with statutory interest, litigation costs and compensation for denial of debt of at least 20%.
To avoid any loss of rights, issuing delivery notes with wet signatures upon delivery of goods is the basic safeguard for suppliers; however, even where the delivery document is missing, it is possible to collect the receivable with the right procedural strategy by requesting a letter to the tax office and an examination of the books. In order to manage commercial disputes and litigation correctly and to comply with limitation and preclusive periods, it is advisable to seek professional legal advice from a lawyer.
Legal Notice: This text has been prepared for general information purposes only and does not constitute legal advice. sophoshukuk.com makes no referral, guarantee or promise of outcome. Each case must be assessed on its own particular circumstances; for your specific dispute, please obtain professional advice from a lawyer.