Petitioner Budi Wibowo Halim conveying the petition revisions for the judicial review of Law No. 1 of 2022 on Financial Relations Between the Central and Regional Governments, Thursday (10/19/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held anther material judicial review hearing of 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) on Thursday, October 19, 2023. Before Constitutional Justices Enny Nurbaningsih, Wahiduddin Adams, and Manahan M. P. Sitompul, Petitioner Budi Wibowo Halim conveyed the revisions to the petition No. 117/PUU-XXI/2023.

The elaboration of the Court’s authority had been shortened while that on the Petitioner’s legal standing had been added with his status as an Indonesian citizen. The petition challenges five norms and the touchstones had been added.

“The explanation of the Petitioner’s loss has been adjusted to the Constitutional Court Regulation (PMK) No. 2 of 2021. The posita has been revised following the touchstones. Lastly, the petitum has been revised following the justices’ advice and the standard format,” said the Petitioner on site from the plenary courtroom.

Also read: Inheritor Questions Property Acquisition Duty for Inheritance

At the preliminary hearing on Wednesday, October 4, the Petitioner conveyed that he 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. 

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.

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