Constitutional Court Declares that Preliminary Evidence Investigation of Tax Crime May Not Use Coercion

JAKARTA. The Constitutional Court (MK) declared Law Number 7 of 2021 concerning Harmonization of Tax Regulations (HPP) conditionally unconstitutional. This conclusion is contained in the decision on the judicial review petition related to Article 43A paragraph (1) and Article 43A paragraph 4 of the HPP Law.

The implication of the decision with the number 8/PUU-XXII/2024 is that the procedure for preliminary evidence (Bukper) audit of tax crimes cannot be accompanied by coercive efforts that violate taxpayer principles.

The judicial review was submitted by two taxpayers named Surianingsih who works as a trader and corporate taxpayer PT Putra Indah Jaya.

The following is an excerpt of the verdict on the judicial review application read by the panel of judges Suhartoyo and read on February 13, 2024:

1. Granting the petition of the Plaintiffs in part.
2. Stating that as long as the phrase "examination of preliminary evidence before an investigation" in Article 43A paragraph (1) in Article 2 number 13 of Law Number 7 of 2021 concerning Harmonization of Tax Regulations (State Gazette of the Republic of Indonesia of 2021 Number 246, Supplement to the State Gazette of the Republic of Indonesia Number 6736) is contrary to the 1945 Constitution of the Republic of Indonesia and has no binding legal force, as long as it is not interpreted as "no coercive measures", so that the full norm of Article 43A paragraph (1) in Article 2 number 13 of Law Number 7 of 2021 concerning Harmonization of Tax Regulations (State Gazette of the Republic of Indonesia of 2021 Number 246, Supplement to State Gazette of the Republic of Indonesia Number 6736) becomes "The Director General of Taxes based on information, data, reports, and complaints has the authority to conduct preliminary evidence audit prior to the investigation of criminal acts in the field of taxation, as long as there are no coercive measures";
3. Stating that Article 43A paragraph (4) in Article 2 number 13 of Law Number 7 of 2021 concerning Harmonization of Tax Regulations (State Gazette of the Republic of Indonesia of 2021 Number 246, Supplement to State Gazette of the Republic of Indonesia Number 6736) is contrary to the 1945 Constitution of the Republic of Indonesia and has no binding legal force, as long as it is not interpreted as "not violating the human rights of taxpayers", so that the full norm of Article 43A paragraph (4) in Article 2 number 13 of Law Number 7 of 2021 concerning Harmonization of Tax Regulations (State Gazette of the Republic of Indonesia of 2021 Number 246, Supplement to State Gazette of the Republic of Indonesia Number 6736) becomes "The procedure for preliminary evidence audit of criminal acts in the field of taxation as referred to in paragraph (1) and paragraph (2) shall be regulated by or based on a Minister of Finance Regulation, as long as it does not regulate matters relating to coercive efforts and violate the human rights of taxpayers".
4. Order the publication of this decision in the State Gazette of the Republic of Indonesia as appropriate;
5. Reject the petition of the Plaintiffs for other than and the rest.

In its considerations, the panel of judges considered that a preliminary evidence audit was one of a series of investigative actions in the process of collecting evidence, to determine whether a criminal incident had occurred or not.

Therefore, the preliminary evidence process must be differentiated from the process of investigating criminal acts in the field of taxation, including the absence of coercive measures.

If this is done, the preliminary evidence audit process will already be related to pro-Justitia actions that have the potential to violate or take away human rights. (ASP/KEN)