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Constitutional Law Expert Yusril Ihza Mahendra said in the presidential system, the president who is elected directly by the people is responsible in establishing taxes and non-tax revenue.

The authority sets taxes and non-tax revenues, it is only applicable if the president and the parliament has agreed through legislative or by government regulations. "Handing the authority specifies the type of activity only with ministerial regulations based on the delegation granted by statute is trespassing the Act of 1945," he said in a follow-up hearing of Judicial Review on Act No 36/2008 on Income Tax in the Plenary Room of the Constitutional Court (MK), Jakarta, Thursday (10/23).

He continued, the task of the minister is to help the president. Ministers are appointed and dismissed by the president so that only responsible to the president not to Parliament, moreover ministers are directly responsible to the people. Therefore, in terms of tax and non-tax revenues, it should be set at the level of legislation or the lowest level of government regulation.

"Regulation of the Minister of Finance delegated to the Director General of Taxes to stipulate taxation and the amount of certain types of activities in the community. In fact, the Director General of Taxes is nothing more than a bureaucrat who should not be given greater authority to burden the people in a democratic constitutional state, "Yusril added.

Furthermore, the Minister of Finance’s authority to interpret the phrase "any other type of services" referred to in Article 23 paragraph (2) of the law as outlined in the form of a ministerial regulation, resulting in the charge material in the ministerial regulations setting the same as in material in the legislation. In fact, there is a hierarchy of legislation that is supposed to show the arrangement of matter differed from one another.

In the hierarchy, according to the norms of Article 5, paragraph (2) of the 1945 Constitution, the position is lower than government regulation by law. While the ministerial regulation is lower than government regulation. "The position of ministerial regulation is lower than government regulation, then how a law would give delegation to the minister to make regulations that the material substance of the charge is equivalent to the norms stipulated in the law?" He said.

Maintaining Comprehensive   

While the Tax Law Expert Gunadi, said that the methods of doing business is very dynamic and evolving. Not easy to call all kinds of services one by one and put them into Article 23 of the Income Tax Law. "In order to keep the formulation comprehensively simple but flexible, in Article 23 paragraph (2) of the Income Tax Act used the term other services," he said as a government expert.

To maintain the flexibility of the types of services that can be changed at any time as the economic and business developing, regulation must be submitted to the Regulation of the Minister of Finance. In addition, if the phrase other services removed, it will limit the cutting object article 23 above remuneration be limited to four types of services, namely technical services, management, constitution, and consulting services. It is assessed against the concept of the object taxes Income Tax Law and Article 41 of the object without narrowing the scope of the levy on the most reliable and effective applied in society generally less law-abiding tax.

Furthermore, the Income Tax Act states that one of the principles of the tax bill is, unequal treatment of all tax revenues or tax cases is essentially the same. Based on the principle of non-discrimination, all kind of entrepreneurs with the same condition levied equally and definitely, covering certainty the amount of tax payable and the burden or the tax effects of a transaction.

"As long as there is the object, it is definitely and clearly the amount to be levied and must be paid equally by all companies of transshipment sectors and clearly based on the laws and regulations in force, and thus does not conflict with the 1945 Constitution," he explained.

(Lulu Hanifa / mh)

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