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Constitutional Justice Wahiduddin Adams delivered Court’s opinion in verdict Number 46/PUU-XII/2014 regarding the Act of Local Taxes and Levies on Tuesday (26/5) at Plenary Room, the Constitutional Court Building. Photo PR/Ifa

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) decided on the regulation regarding telecommunication tower levy rate amounted 2% as stipulated in Act Number 28 Year 2009 of Local Taxes and Levies was contrary to the 1945 Constitution. Thus the Verdict Number 46/PUU-XII/2014 was read by Chief Justice Arief Hidayat on Tuesday (26/5) at Plenary Room, the Constitutional Court Building.

“Grants the Applicant’s petition in its entirely. The Elucidation of Article 124 Act Number 28 Year 2009 of Local Taxes and Levies is contrary to the 1945 Constitution and has no legal binding,” stated Arief when read the verdict of case filed by PT. Kame Komunikasi Indonesia.

In the Court\\'s opinion read by Constitutional Justice Wahidudin Adams, the Applicant objection to the stipulation of telecommunication tower levy rate at maximum 2% of the taxable value of property (Nilai Jual Objek Pajak –NJOP) was assessed reasonable. The Court understood that on one hand the determination of maximum rate intended that the levy rate wasn’t excessive and burdensome to the telecommunications tower provider and telecommunication provider. But on the other hand, Wahidudin continued, if the application in each region was equal regardless of the supervision and control frequency, it indeed cause injustice.

“The provision of maximal rate in amount 2 % of the taxable value of property which causes regional government set highest price, which is 2% of the taxable value of property, without clear calculation is an injustice provision. Because of the maximum benchmark price which caused almost every regions using maximum rate amounted 2% for each regions despite its different characteristic is unfair. It is because equal treatment to different matter is discriminative,” he explained.

The Elucidation of Article 124 Act Number 28 Year 2009 affirmed the usage rate of supervision and control service was difficult to be determined, therefore 2% percentage was stipulated as maximum rate of telecommunication tower levy. However, according to the Court, the Elucidation implied some principles of taxation, whether the principle of legal certainty, justice, simplicity, or efficiency were unfulfilled. Whereas, the Government should considered the principle of taxation in expanding either tax object or levy object, so that the implementation didn’t cause obscurity in the calculation and led to the difficulty of levy determination. “Thus, according to the Court, the Elucidation of Article 124 Act Number 28 Year 2009 had caused legal uncertainty and contrary to Article 28D (1) the 1945 Constitution,” Wahiduddin affirmed.

Clear Calculation

Wahiduddin added, the elucidation of an article shouldn’t contained norms, because the elucidation was an official interpretation from the legislators towards particular norm in the article. However, Wahiduddin added, the Elucidation of Article 124 Act Number 28 Year 2009 was indeed regulated the norm which set the levy rate in the phrase ‘at maximum 2% of the taxable value of property’. In addition, the norm contained in the elucidation of Article 124 Act Number 28 Year 2009 had resulted norm uncertainty in the article. Because of this norm, most local governments was indeed set maximum rate, 2% the taxable value of property, without calculating precisely on how much the levy was actually imposed. The maximum rate regulated with no regard to the service cost related, people’s feasibility, justice aspect and control effectiveness towards the service provided. “Therefore, according to the Court, the Elucidation of Article 124 Act Number 28 Year 2009 does not correspond to the good legislation establishment,” he affirmed.

The Court decided that the Government should soon formulated clear calculation toward the levy rate which in line with the service towards space usage for telecommunication tower which had acquaired by the party who obliged to pay the levy. The calculation was also considered on the service cost provided, people’s feasibility, justice aspect, and control effectiveness towards the service. Thus, the objective of telecommunication tower control in which for minimizes negative externalities could be achieved.

As stipulated on Article 151 (3) and (4) Act Number 28 Year 2009, the service usage rate could be calculated based on the formulation made by the Regional Government if the rate was difficult to be measured, and the formulation was intended to reflect the load of the Regional Government in organizing the service.

“Based on all legal considerations above, according to the Court, the Elucidation of Article 124 Act Number 28 Year 2009 had contrary to the good legislation establishment principle and resulted legal uncertainty and injustice, thus it contrary to Article 28D (1) the 1945 Constitution. Therefore, the Applicant’s petition has legal grounds,” he added.

In the petition, the Applicant argued had been impaired its constitutional rights by the enactment of the Elucidation of Article 124 Act Number 28 Year 2009 of Local Taxes and Levies. The Elucidation stated:

Given the level of service use and control services which difficult to define and then the levy calculation set at maximum 2% of the taxable value of property which used as the basis for calculating the telecommunication tower property tax, in which the amount of levy associated with the supervision and control frequency of the telecommunication tower.

(“Mengingat tingkat penggunaan jasa pelayanan yang bersifat pelayanan dan pengendalian sulit ditentukan serta untuk kemudian penghitungan tarif retribusi ditetapkan paling tinggi 2% dari nilai jual objek pajak yang digunakan sebagai dasar penghitungan pajak bumi dan bangunan menara telekomunikasi, yang besarnya retribusi dikaitkan dengan frekuensi pengawasan dan pengendalian menara telekomunikasi tersebut.)

The Applicant explained the Elucidation a quo caused the provision of telecommunication tower levy rate was no longer based on supervision and control costs. The Applicant explained that in the implementation, most regional governments were directly set highest rate, at maximum 2% of the taxable value of property. (Lulu Anjarsari/Prasetyo Adi N)

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