Legal counsels Syarif Anwar Said Al-Hamid (left) and Daffa Kadri Kusworo (right) at a judicial review hearing of Law on General Provisions and Procedures of Taxation (KUP Law), Wednesday (3/13/2024). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — The Constitutional Court (MK) held another judicial review hearing of Article 39 paragraph (1) letters d and i of Law No. 28 of 2007 on the Third Amendment to Law No. 6 of 1983 on General Provisions and Procedures of Taxation (KUP Law) on Wednesday, March 13, 2024. The second hearing for case No. 30/PUU-XXII/2024, filed by Puguh Suseno, took place in one of the panel courtrooms to hear the revisions to the petition.

Legal counsels Syarif Anwar Said Al-Hamid and Daffa Kadri Kusworo conveyed the revisions such as the Petitioner’s constitutional impairment due to being declared a suspect of tax crime for neglecting to deliver his tax return. The Petitioner argued that he should have received other types of penalty first and that the sanction he received should have been ultimum remedium (a last resort).

He has also added reason for the petition, i.e. the absence of explicit regulation of penalty, thus involuntariness is not regulated. Therefore, the article is unconstitutional. He also alleges that it does not provide benefits for the Petitioner and other taxpayers because the application of lower and upper limit of criminal sanctions has created ambiguity in its application, including when law enforcers such as prosecutors and judges determine fines.

“Of course aside from being against the concept of a rule of law, this is against Article 28D paragraph (1) of the 1945 Constitution. Therefore, a maximum fine should be set at twice the amount of tax payable that is not paid or underpaid, so that there is no disparity of fines in tax cases,” said Syarif before Constitutional Justices Daniel Yusmic P. Foekh, Constitutional Justice M. Guntur Hamzah, and Ridwan Mansyur.

Also read: Taxpayer Challenges Provision on Criminal Sanctions

At the preliminary hearing on Wednesday, February 28, the Petitioner asserted that the article is in violation of Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution. The Petitioner believes it does not firmly regulate sanctions on taxpayers who do not deliver a tax return or who delivers incorrect information. In other words, it only emphasizes the deliberate action that is subject to sanction, but does not regulate the way to prove it. In addition, the lower and upper limit of the sanction and fine has led to ambiguity of its implementation by the law enforcement.

In the petitum, the Petitioner appeals to the Court to declare Article 39 paragraph (1) letters d and i of Law No. 28 of 2007 on the Third Amendment to Law No. 6 of 1983 on General Provisions and Procedures of Taxation unconstitutional and not legally binding if not interpreted as “does not deliver the tax that has been withheld or collected so that it results in the loss for state revenues shall be subjected to imprisonment of at least 6 (six) months and no longer than 6 (six) years and to a fine of at least 2 (two) times of the amount of tax payable that is not paid or underpaid.” 

Author       : Sri Pujianti
Editor        : Nur R.
PR            : Fauzan
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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