Principal Employer's Responsibility for Tax Stoppage

Abstract

According to article 2 of the Labour Code, the principal employer shall be jointly liable with the subcontractor for the obligations ensuing from Labour Code and from employment contracts of subcontractor's employees or from the collective agreement to which the subcontractor has been signatory. For social insurance premiums, joint liability is regulated in the Code No. 5510. However, although employer and wage are defined in tax laws, the principal employer is not defined. In addition, no obligation has been established on the principal employer regarding the receivables of the subcontractor workers. In accordance with the principle of legality, the principal employer is not the employer of the subcontractor's workers in terms of tax law. Because it is out of the question to recruit and operate by giving orders and instructions. Otherwise, there will be collusion. While the principal employer is jointly and severally liable for the wages and premiums of the subcontractor workers, it will not be able to stoppage income tax due to the lack of clear regulation. It is the sub-employer, who is the “employer”, who is responsible for withholding income tax from wages. Until this gap is filled by the legislator, the nature of the payment made by the principal employer to the subcontractor worker will not be counted as wage within the meaning of the Income Tax Code.