Petitioner Budi Wibowo Halim conveying the petition at the preliminary hearing for the judicial review of Law No. 1 of 2022 on Financial Relations Between the Central and Regional Governments, Wednesday (10/4/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Notary Budi Wibowo Halim challenges Article 44 paragraph (2) letter a point 7 and Article 49 letters a, b, and c of Law No. 1 of 2022 on Financial Relations Between the Central and Regional Governments (HKPD Law) materially to the Constitutional Court (MK). The preliminary hearing for case No. 117/PUU-XXI/2023 took place on Wednesday, October 4, 2023.
Before Constitutional Justices Enny Nurbaningsih, Wahiduddin Adams, Manahan M. P. Sitompul, he argued that the articles are against Article 28D paragraph (1), Article 28G paragraph (1), and Article 28H paragraph (4) of the 1945 Constitution.
Article 44 of the HKPD Law reads, “The acquisition of Rights to Land and/or Building as referred to in paragraph (1) shall include: a. transfer of rights due to 7. separation of rights resulting in transfer.” Meanwhile, Article 49 reads, “The time when BPHTB becomes payable shall be determined: a. on the date the sale and purchase binding agreement is made and signed for sale and purchase; b. on the date the deed is made and signed for exchange, grants, bequests, inclusion in a company or other legal entity, separation of rights resulting in a transfer, business merger, business consolidation, business expansion, and/or gifts; c. on the date the recipient of the inheritance or person authorized by the recipient of the inheritance registers the transfer of rights with the land office for inheritance.”
The Petitioner is one of inheritors based on the inheritance deed No. 06/2021 dated April 5, 2021 but has not yet listed the transfer of right to the local land office because he cannot afford the duty on acquisition of land and building (BPHTB) for the inheritance yet. Thus, he believes he could suffer constitutional loss due to Article 44 paragraph (2) letter a number 7 and Article 49 letter b of the HKPD Law, which regulates the tax on acquired land and/or building originating from the separation of rights that results in transfer or rights.
He added that before the Regulation of the Minister of Agrarian and Spatial Planning/Head of the National Land Agency (PMATR/KBPN) No. 16 of 2021, the registration of right transfer at the land office for the inheritance of land right/ownership right over apartment units that are distributed to one or more inheritors based on the agreement of all inheritors is carried out based on the Regulation of the Minister of Agrarian Affairs/Head of the National Land Agency (PMNA/KBPN) No. 3 of 1997. As a result, there are provisions stipulating that BPHTB for inheritance for the registration of transfer of rights from the name of the person who passed away to all inheritors; and BPHTB for right separation resulting in a transfer for the registration of transfer of rights from all inheritors to one or more inheritors agreed based on the deed of co-ownership (APHB).
Meanwhile, the separation and division of inheritance from all inheritors to one or more (not all) is not a form of transfer of rights, so it is not included as part of BPHTB payable. This has created legal uncertainty for the Petitioner in the imposition of BPHTB tax because it is subject to BPHTB for the separation and division of inheritance which should not be BPHTB. The Petitioner should only be subject to inheritance BPHTB, but because Article 44 paragraph (2) letter a point 7 and Article 49 letter b of the HKPD Law are unclear, he could potentially be subject to inheritance BPHTB and right separation BPHTB, which results in the transfer of rights. As a result, there is no basis for the amount of tax, thus creating problem for the inheritors.
“The Petitioner’s constitutional loss would not happen if the Court declare the word ‘bequests’ in Article 49 letter b of the HKPD Law unconstitutional and not legally binding and must be interpreted as ‘for bequests, on the date the transfer of rights is registered to the land office,’” said the Petitioner on site from the plenary courtroom.
Justices’ Advice
Constitutional Justice Manahan M. P. Sitompul advised the Petitioner to observe Articles 8-10 of the Constitutional Court Regulation (PMK) No. 2 of 2021, which contains the petition format. He highlighted the Petitioner’s claim of legal standing as a citizen and/or inheritor and notary public who handles clients. “These are different things, whether as an inheritor or as a notary public who faces clients with issues such as that being questioned in this case. Legal standing is key. If it is not clear, the subject matter may not [be considered],” he said.
Meanwhile, Constitutional Justice Wahiduddin Adams highlighted that the law being petitioned annulled Law No. 33 of 2004 and several others, which contain implementing provisions whose legal basis is set forth in the old Law. Therefore, it is important that the Petitioner build a sound argument for the case.
Next, Constitutional Justice Enny Nurbaningsih said that the Petitioner had brought up a concrete case where he is an inheritor while he challenges a norm that combines Law No. 33 of 2004 and Law No. 28 of 2009, so the constitutionality issue was rather confusing. She advised the Petitioner to revise the petitum and make it easier to understand. She also reminded him that the Court is authorized to review laws, not ministerial regulations.
“Please clarify the petitum at the end of the petition. The issue [the Petitioner] is facing has been explained in the posita, so the petitum should not be too long,” she added.
At the end of the hearing, Justice Enny informed the Petitioner that he would have 14 workdays to revise the petition and to submit it to the Registrar’s Office no later than Tuesday, October 17, 2023 at 09:00 WIB.
Author : Sri Pujianti
Editor : Nur R.
PR : Andhini S.F.
Translator : Yuniar Widiastuti (NL)
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Wednesday, October 04, 2023 | 18:34 WIB 265