The preliminary hearing of a material judicial review case on the Tax Court Law, Thursday (2/29/2024). Photo by MKRI/Ilham W.M.

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JAKARTA (MKRI) — PT Adora Bakti Bangsa, PT Central Java Makmur Jaya, PT Gan Wan Solo, and PT Juma Berlian Exim (Petitioners I-IV) have filed a material judicial review petition against Article 78 of Law No. 14 of 2002 on the Tax Court to the Constitutional Court (MK). The preliminary hearing for case No. 33/PUU-XXII/2024 took place on Thursday, February 29, 2024 in the plenary courtroom.

Article 78 of the Tax Court Law reads, “The decision of the Tax Court shall be made based on the results of the assessment of evidence and based on the relevant tax laws and regulations and based on the judge’s conviction.” The article, the Petitioners allege, is in violation of Article 1 paragraph (3), Article 23A, and Article 28D paragraph (1) of the 1945 Constitution.

Legal counsel Cuaca stated that the Petitioners had pursued legal remedies in the Tax Court but feel that its decisions were unfair. In the petition, the Petitioners’ legal cases have been elaborated. For example, as a taxpaying legal entity, Petitioner I had filed a request of the erasure of administrative sanction and cancelation of tax collection notice, but it was rejected on the grounds of a Regulation of the Finance Minister. The tax court judges asserted that the rejection had been based on Article 78 of the Tax Court Law and that the regulation had been part of statutory laws and regulations.

Similarly, Petitioner IV had filed a lawsuit to the tax court against a collection notice of value added tax of goods and services. In the decision and legal considerations, the judges stated that they reject the lawsuit based on a decree of the Director-General of Taxation. These legal facts show that Petitioner IV had experienced legal uncertainty. He asserts that the tax court decision must be based on law, not regulations.

“Therefore, the Petitioners’ petitum to the Court is for it to declare the phrase ‘statutory laws and regulations’ in Article 78 of Law No. 14 of 2002 on the Tax Court unconstitutional and not legally binding if not interpreted as ‘laws,’” Cuaca said before Deputy Chief Justice Saldi Isra (panel chair) and Constitutional Justices Daniel Yusmic P. Foekh and Arsul Sani.

Justices’ Advice

In response, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioners to strengthen their reason to file the petition with principles of and comparison with other countries.

“Please consider whether technical matters must also be regulated in a law. If this is interpreted so, what are the impacts? It is not easy for the Court to determine which should be made into law or not. Please present a comparison with other countries,” he said.

Next, Constitutional Justice Arsul Sani asked the Petitioners’ legal counsel to include the companies’ statutes/bylaws to show who can represent the companies to file the petition. Meanwhile, Deputy Chief Justice Saldi Isra asked for the companies’ deeds of establishment, which shows the director and the parties who have the right to represent them in court.

“The [Limited Liability Company Law/PT Law] mentions the director, but usually the deed explicitly states who has the authority [to represent the company in court]. In addition, the Petitioners’ constitutional impairment… what has violated their potential rights due to the enforcement of the article,” he said.

At the end of the hearing, Justice Saldi announced that the Petitioner would have 14 days to revise the petition and submit it by Wednesday, March 13 at 09:00 WIB to the Registrar’s Office.

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Fauzan Febriyan
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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