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Applicant’s Attorney Syawaludin delivered petition points in preliminary session of Tax General Regulations and Procedures Act, on Wednesday (24/2) in Panel Session Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

Objected with tax liability charged on his business, Edi Pramono sues Act of Tax General Regulation and Procedures. Accompanied by his attorney Syawaludin, the building material entrepreneur delivered petition points in preliminary session of Case No. 13/PUU-XIV/2016, on Thursday (24/2) in Panel Session Room, the Constitutional Court Building.

Syawaludin delivered the background of petition. He said the Applicant had received Annual Income Tax (SPT Tahunan PPh) notification letter from Kudus Tax Office (KPP Pratama Kudus) in 2010.

Although he had received the notification letter, the Applicant claimed he had yet registered as taxable entrepreneur (PKP) and only revised the letter. He then registered himself as taxable entrepreneur after getting the notification letter.  

Syawaludin further said that the Applicant was still charged with tax obligation in the period before Kudus Directorate General of Tax (Dirjen Pajak Kudus) registered the Applicant as taxable entrepreneur.

“Kudus Directorate General of Tax has issued underpayment tax assessment letter regarding value added tax and tax period services (jasa masa pajak, ed,) in January 21, 2013 which essentially decides the Applicant is charged with monthly tax obligations for the period of January until December 2009 (before the Applicant is determined as taxable entrepreneur, ed.) with the amount of taxable base 623 million Rupiahs and other obligations,” said Syawaludin. He also added that the Applicant was charged with VAT more than 1 billion Rupiahs.

The Applicant then filed objection letter to the directorate general which essentially said VAT couldn’t implemented retroactively. However, the directorate general rejected his objection, saying there was no certain provision on when tax obligations charged to taxable entrepreneur. Therefore, the Applicant also filed appeal to Tax Court, although in the end the Tax Court rejected his appeal.

Constitutional Loss

The Applicant considered detrimental by retroactive tax obligation because he didn’t charged VAT on his wares and the amount of the tax was very huge.

“VAT is consumption tax, the end consumers who consume taxable goods and services are responsible for VAT. Kudus Directorate General of Tax should charge it on consumers, rather than on taxable entrepreneur. The directorate general could only impose the tax on taxable entrepreneur if there is evidence that the concerned entrepreneur has charged VAT to consumers but he has yet reported or deposited the tax to the State,” asserted Syawaludin.

The Applicant assessed the provision of Article 2 (1), (2), (4), and (4a) Act of Tax General Regulations and Procedures didn’t provide protection, fair legal certainty, and equality before the law as stipulated in Article 28D (1) the 1945 Constitution. Moreover, the Applicant also argued his rights to independence were violated by the Articles a quo.

Therefore, the Applicant sought for justice by requesting his tax obligations only began after he was determined as taxable entrepreneur and the obligations were not applied retroactively.

Justice Input

Responding Applicant’s petition, Constitutional Justice Maria Farida Indrati as member justice delivered input. She advised the Applicant to sharpen his argument on Applicant’s constitutional rights. She hadn’t seen any constitutional loss that resulted by the Articles reviewed.

“What is your constitutional loss? You have constitutional rights in Article 28D and Article 28I (the 1945 Constitution, ed). Are your rights stipulated in those Articles violated by this Act (Act of Tax General Regulations and Procedures, ed)? Are the Act articles harm your constitutional rights? Is there any casualty? Your potential constitutional loss should not be occurred if the petition granted. Please explain,” said Maria.

Maria assessed that the Applicant was more concerned on the directorate general’s rules that implemented based on the Articles reviewed. She argued the use of the directorate general’s rules as basis of judicial review will be considered as norm implementation matter, rather than norm constitutionality matter.

Justice Panel provided 14 workdays for petition revision. The Applicant should submit the petition not later than Tuesday March 8, 2016 at 10.00 West Indonesian Time. (Yusti Nurul Agustin/lul/Prasetyo Adi  N)

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