EXPERTS FROM SUPREME AUDITOR: RESTRICTING AUTHORITY, EXPERTS FROM GOVERNMENT: NOT
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Debate and rebuttal filled the continuation of the trial for Article 34 Paragraph (2a) letter b of Act No. 28 Year 2007 about the third ammendment of Act No. 6 Year 1983 on General Stipulation and Tax Procedures (UU KUP) and the explanation of the act towards the 1945 Constitution. The trial that lasted a whole day on Wednesday (27/2) at the Constitutional Court Building, presented several experts in law, finance, economy and tax, both from the Government’s side and the Petitioner’s.

The Supreme Auditor as the Petitioner presented expert in economy Faisal Basri, S.E. and Dr. Imam Sugema, finance examination expert Drs. Ahmadi Hadisubroto, M.Sc., State administration law expert Prof. Dr. Philipus M. Hadjon, constitution expert Denny Indrayana, Ph.D., and legislation law experts Prof. Frans Limahelu, S.H., LL.M. Meanwhile the Government presented tax law expert Prof. Dr. Gunadi, State financial examination expert Prof. Dr. Satrio Budihardjo Joedono and Drs. Soedarjono, financial examination expert Drs. Kanaka Puradiredja, also Human Rights experts Abdul Hakim Garuda Nusantara, S.H., LL.M. Besides that, Government also presented two witnesses, Rhenald Kasali (academician) dan Fred Tumbuan (adcokate/consultant).

Imam Sugema explained that the stipulation in UU KUP Article 34 Paragraph (2a) letter b amd the Explanation had the potential to hold back the bureaucratic reformation process in Government environment, especially in Tax General Directorate (DJP). Imam also said the data and information about tax payers that was able to be accessed by auditors as regulated by UU KUP was general information and was not equal to the standard of auditor’s importance.

“The data needed by auditors are data concerning numbers and money. However in the Explanation of Article 34 Paragraph (2a) letter b UU KUP is eventually irrelevant data to the auditor’s need. Therefore, in our consideration the explanation has reduced the constitutional rights of the Supreme Auditor as general auditor and secondly has reduced the constitutional rights of tax payers that is the right on personal property in form of tax payers identity,” said Imam.

Meanwhile another economy experts from the Petitioner Faisal Basri said that several countries whose political and economical institutions were good in the past time now turned to be rich countries. According to Faisal, to create a good quality of the institution among others was well arranged business regulation procedures, including Taxation. “Therefore I consider part of the efforts to strengthen the insitution was to call off the article pleaded,” he said.

Economic expert from the University of Indonesia also give an example that Indonesian people had been left behind in term of economic condition compared to the neighbouring countries. One of the cause, according to the Economist once particapated actively in politics, was because the state income from tax sector had not been managed optimally.
 
Supporting the opinion, expert in State Administration Law of Airlangga University Prof. Dr. Philipus M. Hadjon said that the explanation of Article 34 Paragraph (2a) letter b of UU KUP violated Article 23E Paragraph (1) of the 1945 Constitution. Hadjon said that the authority of the Supreme Auditor was an attributive authority because given by the 1945 Constitution. The authority was explained through Article 9 of Act No. 15 Year 2006 on Supreme Auditor (UU BPK). According to Hadjon, the Explanation of Article 34 Paragraph (2a) of UU KUP had limited the Supreme Auditor’s authority as provided by Article 9 of UU BPK.

“In Article 9 Paragraph (1) of UU BPK it is said that the Supreme Auditor is authorized to determine the examination objects, whereas in the Explanation of Article 34 Paragraph (2a) letter b of UU KUP, the Supreme Auditor is bound only to the material allowed to be given (stated in the Explanation–ed.),” said Hadjon.

The same thing said by Denny Indrayana. Denny considered the stipulation of the Minister of Finance towards the tax officers allowed to give information to officers from Supreme Auditor had violated the principles of “free and independent” possessed by the Supreme Auditor. Furthermore, Denny also said that the limitation had the potential of creating despotic rulers and closed to public examination.

Violating Tax Payers’ Human Rights
Different from those opinions, former head of Supreme Auditor presented by the Government, Satrio Budihardjo Joedono on the other hand considered the Supreme Auditor did not have any authorities to audit citizen’s personal finance. According to him, the data and information of the tax payers arranged in the Explanation of Article 34 Paragraph (2a) of UU KUP was a personal finance domain. “Meanwhile the Supreme Court’s authorities was to conduct audit on State’s finance,” he said.

According to the man commonly called Billy Joedono, the state financial domain in taz was limited to the ammount given by tax payers in Tax Paying Letter (SSP). Meanwhile the Annual Tax Information Letter (SPT) managed the personal finance of tax payers whose secret was guaranteed by law. Providing authorities to the Supreme Auditor to check the personal finance of tax payers, according to Billy, would also cause law uncertainty for the tax payers

“if I was examined by the tax officer and Supreme Auditor officers then it will cause a law uncertainty, who’s right? If the Supreme Auditor agrees with my SPT while the tax officers are not, then who’s more right? Actually law certainty was reserved by Article 28 paragraph (1) of the Constitution,” he said.

Furthermore, Billy also considered the Supreme Auditor in fact questioned the stipulation which actually an entrance for the Supreme Auditor to conduct audit on tax income. Meanwhile the regulation strictly limited tax officers to provide information to the examiners, that are Article 34 Paragraph (1) and Paragraph (2) was not questioned by the Supreme Auditor.

Abdul Hakim Garuda Nusantara also considered the data and information on tax payers was a personal property’s right of the tax payers whose existence and secrecy was guaranteed by the 1945 Constitution. The data and information given by tax payers to the tax officers was for the sake of tax calculation and the officers were due to keep the secrecy of the data by law. Therefore, “Giving access to tax payers’ data to the Supreme Auditor without Minister of Finance or the Government’s Stipulation was a violation on human rights of the tax payers,” stated Hakim.

Former Head of Human Rights National Commission also considered giving access to the Supreme Auditor to examine personal data of the tax payers would cause a double effecrs on the tax payers, that were law injustice and law uncertainty.

Meanwhile tax law expert, Prof. Gunadi, commented that the protection of the tax payers secret had become a common thing and implemented in taxation system in other countries. Gunadi also considered that the protection was a form of protection for the tax payers properties from the despotion of the State that might appear. Besides, “That protection can also improve tax payers obedience to pay taxes,” he added.

One of the witness as a tax payer presented by the Government, Rhenald Kasali, admitted he would give his data to the tax payers freely as a form of obedience of a citizen on his duty. However, he felt worried if his confidential personal data could be accessed publicly, then it would be used by irresponsible parties and would harm himself.

“if the data I confidently gave to the tax payers were given to other parties, moreover if it is potentially to be re-examined, then it could be predicted that the awareness of the tax payers to pay the tax will reduce,” said the man who also works as a lecturer worriedly.

At the end of the trial, Chief Justice of the Constitutional Court Jimly Asshiddiqie expected whatever the verdict would be on this case, both parties whether the Government or the Supreme Auditor, they could negotiate the examination technical details in examining the State’s Finance from tax sector. “Because it is related to the state matter,” said Jimly.[ardli / Yogi Djatnika]


Thursday, February 28, 2008 | 08:00 WIB 243
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