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Teguh Samudra as Petitioner’s Expert giving his statement in the follow-up judicial review hearing of the Law on General Provision and Taxation Procedure, on Tuesday (14/11) in the Courtroom of the Constitutional Court. Photo by PR/Ifa.

The judicial review of Law No. 6/1983 on General Provision and Tax Procedure (Tax Law) was held once again by the Constitutional Court (MK) on Tuesday (14/11). The hearing of Case No. 63/PUU-XV/2017 was to hear the Petitioner’s and the Government’s Experts.

Teguh Samudra as the Petitioner’s Expert mentioned the regulations and laws that prohibit advocates assisting and/or representing their clients in front of officials, officers, and/or tax offices violate the Law on Advocates. In addition, the prohibition also violates the principles of the role of advocates that have been endorsed by the United Nations and is universally applicable and violates the human rights of both advocates and their clients.

"The basic principles of the role of advocates that have been endorsed by the United Nations Congress at the 8^th Congress in Havana, Cuba, August 27 to September 7, 1990. These principles have been universally recognized and serve as guidelines or framework of thought in the formation of law and attitude of the government in exercising its authority," he explained in the session chaired by the Chief Justice of the Constitutional Court, Arief Hidayat.

Teguh also believes the action of government officials in denying the presence of advocates to accompany their clients with a power of attorney is a very painful matter, and violates democracy and human rights. He continued, the ignorance of officials who are only able to adhere to such unjust and even discriminatory rules does not reflect government officials’ function as state servants in charge of serving the citizens. "Officials and rules that prohibit or negate the role of the advocate profession are very cruel and inhuman, tend to be arrogant and like flaunting their authority," said Teguh.

Meanwhile, Kismantoro Petrus as the Government’s Expert explained the different definitions of consultant and legal counsel in the Tax Law. According to him, a tax consultant can be interpreted as a person who has expertise in taxation or an expert in the field of taxation, whose job is to provide guidance or advice required in the implementation of taxation rights and obligations for the community. "As the name implies, a tax consultant is a profession for people who have fulfilled the main requirement, that is having expertise in the field of taxation in accordance with the existing provisions," he explained.

Attorney, continued Kismantoro, in the provisions of the Tax Law is given a special meaning—the person assigned by a special power of attorney to exercise the rights and fulfill the obligations in accordance with the provisions of the tax laws and regulations. "Thus, officially under the provisions of the Tax Law, an attorney is a person who receives the special power from a taxpayer to exercise the right and/or fulfill certain taxation obligations of the taxpayer, in accordance with the provisions of the laws and regulations in the field of taxation. This definition is stipulated in Regulation of the Minister of Finance No. 229/PMK.03/2014," he explained.

Kismantoro mentioned certain requirements for anyone wanting to become a tax consultant as stipulated in the Regulation of the Minister of Finance No. 111/2014. Those are having a license as a tax consultant, having a tax consultant certificate by passing an official certification examination for tax consultants, performing duties in accordance with the level of tax consultant certification owned, becoming a member of one of the tax consultant associations, exercising the rights and obligations as a tax consultant, and complying with a supervisor who has the authority to reprimand, suspend, revoke the license of the tax consultant\'s practice.

"Because of these requirements, the tax consultant is a party who has formal and organized professional standards, and is accountable to the government through the Directorate General of Taxes, and must understand the provisions of legislations in taxation that is specifically regulated, so the tax consultant may be appointed as the taxpayer\'s attorney," said Kismantoro.

The Petitioner works as an advocate and lawyer, curator-manager, mediator, legal auditor, and legal attorney of the tax court. The Petitioner filed a petition for the judicial review of Article 32 paragraph (3a) of the Taxation Law. Article 32 of the a quo law reads, "The requirements and the implementation of the rights and duties of attorney as referred to in Article 32 paragraph (3) shall be regulated by or based on the Regulation of the Minister of Finance."

The elucidation to Article 32 of Law No. 6 Year 1993 is stipulated by the decision of the Minister of Finance, which is substantially regulated in the Regulation of the Minister of Finance as the elucidation to Article 32 paragraph (3a) of Law No. 6 Year 1993. It reads, "To be an attorney, one must be a legal consultant." The Petitioner believes that the provision of Article 32 paragraph (3a) of the law is detrimental or potentially impairing the constitutional rights of the Petitioner, due to the absolute authority of the Minister of Finance to determine the requirements and the exercise of the rights and obligations of attorneys. The Petitioner feels aggrieved because he was denied the opportunity to assist clients in Tax Office of Bantul. In response to the rejection, the Petitioner filed a lawsuit in the Bantul District Court. (ARS/LA/Yuniar Widiastuti)

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