Türkiye extends the capital loss carve-out: unrealised FX losses can stay out of the Article 376 test until 1 January 2028

Status date: 14 October 2026. Status: In force. Instrument: Communiqué amending the Communiqué on the Procedures and Principles for the Application of Article 376 of the Turkish Commercial Code No. 6102 (6102 Sayılı Türk Ticaret Kanununun 376 ncı Maddesinin Uygulanmasına İlişkin Usul ve Esaslar Hakkında Tebliğde Değişiklik Yapılmasına Dair Tebliğ), Ministry of Trade, Official Gazette (Resmî Gazete) of 10 October 2026, No. 33396. It took effect on publication (Article 2).

If you own a Turkish subsidiary and funded it with a euro or dollar loan from the parent, you already know the autumn arithmetic. Every point the lira loses inflates the foreign exchange loss on that loan, and the loss sits in the same balance sheet that the Commercial Code uses to decide whether half of the company's capital is gone. That test is what Turkish practitioners loosely call technical bankruptcy (teknik iflas). The relief that keeps those losses out of it was due to end on 1 January 2027. On 10 October the Ministry moved the date to 1 January 2028.

What the text says

The amendment changes one date in provisional Article 1 of the Communiqué. The rule behind the date matters more. When a company calculates capital loss or over-indebtedness under Article 376 of the Commercial Code, it may leave out two items. The first is the whole of the foreign exchange loss arising from foreign currency liabilities that have not yet been performed. The second is half of the combined lease expenses, depreciation and personnel costs accrued in 2020 and 2021. No amount may be deducted twice, and nothing is booked in the financial statements; the use of the carve-out is disclosed in the notes for information only.

Article 376 itself sets three triggers. If the last annual balance sheet shows that losses have consumed half of share capital plus statutory reserves, the board must call the general assembly at once and propose remedial measures (Art. 376(1)). At two thirds, the company dissolves by operation of law unless the general assembly resolves to continue with one third of its capital or to replenish it (Art. 376(2)). Where there are signs of over-indebtedness, the board draws up an interim balance sheet and, if assets do not cover creditors, notifies the commercial court and petitions for bankruptcy (Art. 376(3)). The Communiqué applies all of this to joint stock companies (A.Ş.), limited liability companies (Ltd. Şti.) and partnerships limited by shares alike (Communiqué Art. 2).

What the text leaves open

The cut-off attaches to the date of the calculation, not the balance sheet date. The provision covers "calculations made until 1/1/2028". Your 31 December 2026 accounts go to the general assembly in spring 2027, so the carve-out is available for them, and for any interim balance sheet drawn up during 2027. Your 31 December 2027 accounts will be assessed in 2028. Unless the date moves again, the full FX loss counts in that assessment. The table shows that the Ministry has pushed the date back by a year every autumn since 2023. We cannot show that it will do so again.

Accumulated losses are the second open point. The text says "the whole" of the FX loss and draws no line between years. As long as the loan is still outstanding, we read it as covering losses booked in earlier years too. We have not seen a written Ministry position on this.

Our reading

The carve-out is an option ("may be disregarded"), not an entitlement. If you use it, you should be able to show in the notes which liability produced which loss at which rate, and in an audited company the auditor will see that working. A loss on a loan that has already been repaid falls outside the carve-out, because the text covers only liabilities "not yet performed". A repayment to the parent before year end can therefore change the result.

For a foreign-owned company the real question is what happens after 1 January 2028. The carve-out does not remove the loss; it only defers counting it. The lasting fixes are the ones in Article 7 of the Communiqué: a capital reduction, replenishment of capital, or a capital increase. Replenishment is a non-refundable payment that is neither capital nor a loan (Communiqué Art. 9). For over-indebtedness, the Code leaves a separate route. If a creditor such as the parent agrees in writing, before any bankruptcy decision, to rank behind all other creditors, and court-appointed experts verify that subordination, the company is not declared bankrupt (Art. 376(3)). Which route fits depends on the loan's maturity and on how much fresh money the shareholders are prepared to commit, so we suggest settling it before the 2027 general assembly. Our guide to setting up a company in Türkiye as a foreigner covers the minimum capital rules, and our page on dividend withholding and thin capitalisation explains how shareholder loans are treated for tax.

What did not change

The Code did not change. The half, two-thirds and over-indebtedness triggers in Article 376 are the same. The test still runs on financial statements prepared under Article 88 of the Code, or on statements prepared under Turkish Accounting Standards (TMS) where the company has opted for them (Communiqué Art. 13). Automatic dissolution at the two-thirds level, where the general assembly adopts none of the measures, also stays (Communiqué Art. 11). The Communiqué governs only the Article 376 calculation and contains no rule on tax computations.

How to verify

The amending text: resmigazete.gov.tr/eskiler/2026/10/20261010-19.htm. The consolidated Communiqué is on the Legislation Information System under number 24813; look for "1/1/2028" in provisional Article 1 and for the row "10/10/2026, 33396" in the amendment table at the end.

If you want your Turkish subsidiary's 2026 year-end accounts read against this test, reach us through our outsourced legal counsel for foreign-owned companies in Türkiye page. If the date moves again, the update will appear under Legal Updates.