The organizers of golf facilities can be relieved. Because the Constitutional Court ruled that the word "golf" no longer have binding legal force and against the 1945 Constitution. Decision of the Court with a number 52/PUU-IX/2012 was read by Deputy Chief Justice Ahmad Sodiki accompanied by six other constitutional judges on Wednesday (18/7).

"To grant the petition of the petition in its entirety. The word "golf" in Article 42 paragraph (2) letter g of Law Number 28 Year 2009 on Regional Taxes and Levies contrary to the Constitution of the Republic of Indonesia Year 1945. The word "golf" in Article 42 paragraph (2) letter g of Law Number 28 Year 2009 on Regional Taxes and Levies do not have binding legal force," said Sodiki in Plenary Room.

In the opinion of the Court, argued that the tax base, including local taxes cannot be done just because of the need for development for the public good, so look for those services or areas that have the ability to pay. Taxation should consider all aspects, including the types of businesses or activities that can be taxed as well as aspects of justice for the taxpayer. According to the Court, golf is one sport that competed well in the achievement of national and international levels. Furthermore, it should be recognized also that people play golf there is also an achievement but not for the purpose for the purposes of health, recreation, and others. Therefore, golf cannot be classified as a mere entertainment, so it can be subject to entertainment tax. The taxation on a game of golf can lead to loss of interest in this sport, so the absence of an encouraging achievement and national pride to a nation.

"For the organizers of golf facilities, entertainment tax would result in additional expense for the procurement and maintenance of golf courses is very expensive plus the property taxes are higher paid to the state. Yet on the other hand, the organizers of golf facilities are also subject to other taxes such as the restaurant tax and parking tax that also contribute to the local treasury, "said the judge constitution.

Regarding the double taxation of the sport of golf, according to the Court, pursuant to Article 42 paragraph (1) of Law 28/2009 which is the object of entertainment tax is a service organization of entertainment with free of charge, while the subject of Entertainment Tax is an individual or agency who enjoys the entertainment. Thus the tax object is a service organization of golf courses and sports facilities are subject to tax an individual or agency that play golf, which is levied by local governments in each district / city. In principle, all goods and services will be charged VAT unless a VAT is mentioned as a negative list, or set by the tax collector to be exempted from VAT. "Regulation 144/2000 does not mention the sport of golf as a service organization that services are exempt from the imposition of VAT. Entertainment services in the areas that are excluded by Regulation 144/2000 only services in the field of entertainment spectacle that has been subject to tax, while the game of golf as intended by the Act 28/2009 is not a spectacle, but as a game. Thus, the organization of the sport of golf is not included in the negative list of VAT, and therefore an object of the VAT, "said the judge constitution.

Based on these facts the Court has been double taxation arrangements for the same tax object which is providing golf facilities, which is the object of VAT, and on the other hand is also an object of Entertainment Tax. Therefore, the Court agreed with Eddy Mangkuprawira TB expert who testified that overlapping taxation by two different laws against a potential tax object of misuse of authority in the implementation of tax collection or the abuse of power that gave birth to the stigma of power to tax is the power to destroy. Regardless of whether the practice of double taxation is the case or not, because the Court did not adjudicate the application of the norm, but based on the provision of entertainment tax on services tax administration objects golf sports facilities are potentially subject to double taxation contrary to the principle of legal certainty and fair treatment equal before the law guaranteed by the constitution. "Based on the above description, according to the nine Constitutional Court Justices except Constitutional Justice Achmad Sodiki, the imposition of entertainment tax on the sport of golf against the principle of legal certainty and guarantee the protection of fair and equal treatment before the law guaranteed by Article 28D paragraph (1) of the 1945 Constitution. Considering that based on the above considerations, the Court reasoned petition of the Petitioners law, "explained the judge constitution.

Dissenting Opinion

Deputy Chief Justice of the Constitutional Court Achmad Sodiki filed a dissenting opinion. According to Sodiki, golf is an element of sports entertainment. With the conclusions drawn from the practice that golf competed in the National Sports Week and instead of an explicit norm (expresive verbis) sourced golf understanding of Act No. 3 of 2005 as a sport and then compare it with the Article 42 paragraph (2) letter g Act No. 28 of 2009 as an entertainment which, according to the Petitioners ---- then ---- then the tax levied by the applicant it is considered contrary to Article 28D paragraph (1) and Article 28I paragraph (2) of the 1945 Constitution. This is certainly not appropriate, because the same term placed in different scientific domains will have different meanings. That is because the emphasis is different. Similarly, a term derived from the practice of golf and golf terms contained in the Act No. 28 of 2009 cannot be contested because each has its own viewpoint in the system. So golf should be viewed from the perspective of tax law instead of sports law (Law No. 3 of 2005).

The applicant explained Sodiki only conclude that the practice of golf competed in the Games but did not explicitly mention the article about the golf of the Act of the National Sports System, because it's Article 1, paragraph (4) of Act of the National Sports System none mention the word golf . But the argument that the practice has been contracting with the classification of golf into the entertainment provided for in Article 42 paragraph (2) letter g, so that the problem at the level of legality is not an issue of constitutionality. "The Applicant does not describe Article 42 paragraph (2) letter g that characterizes golf as entertainment is contradictory to Article 28D paragraph (1) and 28I (2) of the 1945 Constitution. Article 1, which classifies exercise into 6 (six) classes are not mentioning the type of sports entertainment. Thus no one if Article 42 paragraph (2) letter g of Act a quo put golf into a kind of entertainment. Moreover, it is clear that golfers free of charge, and therefore he became the object of entertainment tax is organizing entertainment services free of charge. That in the end, taxes will be returned to the community as a manifestation of social functions for the creation of social justice on the basis of the principle of proportionality, so that the Petitioners' petition should be denied," said Sodiki. (Lulu Anjarsari/Yazid.tr)