In the aftermath of Constitutional Court Verdict Number 63/PUU-XV/2017 nullifiying Article 32 paragraph (3a) of Law No. 28 Year 2007 regarding the Third Amendment to Law No. 6 Year 1983 regarding General Tax Provisions and Procedures, the question of who is entitled to become a taxpayer tax today is still debated many circles. In fact, the Head of Sub Directorate of Legal Aid of the Directorate General of Taxes, Sigit Danangjoyo, said that the constitutional constitutional verdict can not be used to topple over the PMK no. 229/PMK.03/2014 regarding The Requirements As Well As Exercise Of Rights And Obligations Of A Proxy.
According to Sigit, it is yet to be declared the PMK 229 no longer valid. The Constitutional Court in its consideration says that as long as the PMK 229 stipulates the administrative technical arrangement aspect is allowed, but if its has entered the substantive territory that is extends or constricts the rights of citizenship then it is not allowed. In addition, continued Sigit, the Court only authorized to test the Law against the Constitution, not PMK.
“Legally in the formal sense, the Constitutional Court’s Verdict does not nullify PMK 229. However, to honor of the decision of the Constitutional Court, the DGT in the near future will soon revise this PMK 229. It’s just that we are projecting there will be problems occuring on the field later,” said Sigit in a Hukumonline event discussion entitled ‘Implication Decision of the Constitutional Court No. 63 / PUU-XV / 2017 against Taxpayer Authority ‘, Monday (14/5).
In actuality, said Sigit, besides PMK 229 there is also a tax regulation regarding the power of attorney, which is contained in PP 74 of 2011 on Procedures for the Implementation of the Rights and Fulfillment of Taxation Obligation which is derived from Article 48 of the Law on KUP. In the PP, said Sigit, there are only two parties that can represent the WP, namely Tax Consultants and Non-Tax Consultants. Neither the consultant nor the non-tax consultant according to the regulation, said Sigit, must already have a certificate of Brevet or have a formal diploma at least D3 in PTN / PTS field of accredited taxation A.
“As a short-term measure in response to this Constitutional Court Decision, the provisions of the requirements of tax consultants will be the same as the PP 74. The long-term step we will take is to support the authority is regulated in the level of the Act,” said Sigit.
Chairman of the Association of Indonesian Tax Lawyers (PERJAKIN), Petrus Loyani, questioning the regulation of taxpayer power requirements that arrangement directly plunge into the FMD. According to him, in theory it violates the concept of stufenbau theory and Law no. 12 Year 2011. In Act a quo, requires arrangement must pass 2 jumps, namely PP and Presidential Decree (Kepres).
“That is why the Constitutional Court gives a very clear affirmation that whatever is stipulated in the ministerial rule is only ‘technical’, it should not be substantive,” explained Petrus during a legal interview on Monday (14/5).
For example, says Petrus, the position of power relating to rights and obligations is closely related to the rights and defense of taxpayers whose substantive regulatory nature. If it is still regulated in the ministerial level rules, then open wide potential conflict of interest. The problem is that both the minister and the director general are the implementers of the law (executive) who are dealing directly with the taxpayer’s power. In fact, said Peter, to appoint a tax consultant, his authority only exists on the director general.
“So it makes no sense if the taxpayer hangs his fate to the taxpayer authority appointed by the tax director general. There just has been a conflict of interest, “said Peter.