The Petitioner’s experts taking oath before the constitutional justices at a judicial review hearing of the Law on Financial Relations between Central-Regional Governments, Monday (2/12/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Notary Budi Wibowo Halim (Petitioner) presented notary experts Thio Yonathan and Habib Adjie at another material judicial review hearing 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 Monday, February 12, 2024. The hearing for case No. 117/PUU-XXI/2023, taking place in the plenary courtroom, was chaired by Constitutional Justice Suhartoyo and Deputy Chief Justice Saldi Isra.

Thio Yonathan testified that the imposition of levy for acquiring land and building rights (BPHTB) on sale and purchase binding agreement (PPJB) cannot be equated with that of income tax (PPh) in PPJB. This is because BPHTB is only imposed when the acquisition occurs, while income tax is imposed when there is income. Thus, it is not appropriate for BPHTB to be equated with income tax collection. In short, Thio said, the rule for the imposition cannot apply.

“Thus, the basic principle of tax imposition (when payable) is different, that is, BPHTB is only imposed (payable) when an acquisition occurs, but income tax is imposed (payable) when there is income,” he reasoned. 

Meaning of Paid PPJB

The next expert, Habib Adjie, said that Article 49 of the HKPD Law should be elucidated, “The time when BPHTB becomes payable is determined on the date when the sale and purchase binding agreement is signed for sale and purchase.” This is because, for example, if someone wants to give a grant, binding grant agreement PPJB can also be made. Similarly, parties who want to barter can make a binding agreement for it.

“There is no explanation here, no emphasis on what sort of PPJB that is the object of BPHTB. Referring to the Supreme Court, PPJB is legitimate when it is paid, when the right and obligation of all parties have been fulfilled and the property being sold and purchased is owned by the buyer,” Habib explained.

Also read:

Inheritor Questions Property Acquisition Duty for Inheritance

Petitioner Affirms Reason to Challenge BPHTB Provisions on Inheritance

Govt: HKPD Law Simplifies Regional Taxation and Retribution System

PP-IPPAT Chairman Explains BPHTB’s Legal History at Hearing on HKPD Law

At the preliminary hearing on Wednesday, October 4, the Petitioner revealed that he was one of inheritors based on the inheritance deed No. 06/2021 dated April 5, 2021 but had not yet listed the transfer of right to the local land office because he could not 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.

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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