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form of criminal sanctions is still needed. Enforcement of criminal sanctions directed
against the person who committed the crime were not only violating the rules of
administrative law, but also violated the rules of criminal law. Take for instance, falsiication
of documents, books, records that do not relect the actual circumstances, resulting
in loss of national income as stipulated in
Article 39 paragraph 1 Taxation General Provisions and Procedures Law. Falsiication
of documents is also regulated in Article 263
of the Criminal Code which is a general crime. In terms of counterfeiting, there is a purpose
to use a letterdocument as that is genuine or not fake that caused losses to the state.
Moreover, those acts can also be categorized as misuse or use without authority of NPWP.
In addition to the counterfeiting such above, another things that can be used to
assess of the application of criminal sanctions such as the element of intent. It means that
the act was committed with a conscious and has a speciic purpose. This may become an
important factor in assessing the intentional
elements, whereas intention always begins with a plan to do something crime which are
already considering the risk or consequences of the act that is committed.
c. Alternative Criminal Law
Enforcement on Taxation
Law enforcement through non- litigation mechanism is intended as a law
enforcement without judicial mechanism. Based on the criminal justice system,
criminal law enforcement starting with the inquiry, investigation, prosecution,
investigation in legal proceedings and executionimplementation of the judge’s
decision which has been ixed. Whether Article 44B Taxation General
Provisions and Procedures Law can be categorized as criminal law enforcement
through non-litigation process? It is necessary to ind the elements of Article 44B then
applied to the deinition of law enforcement through the courts itself.
Noticing the provision of Article 44B Taxation General Provisions and Procedures
Law, it can be concluded the following
elements: Firstly, the existence of a request
SP3 by the Minister of Finance to the
Attorney General; Secondly, the taxpayer has their paid tax due and ines by 4 four
times amount of unpaid tax or underpaid tax;
Thirdly, only applies to the taxpayer, does not apply to third parties; and Fourth, the
case has not been sent to trial. Request for termination of the
investigation should be carried out by the Ministry of Finance to the Attorney General.
Taxpayer cannot apply directly to the Attorney General’s request SP3, but rather
to the Minister of Finance, and the Ministry of Finance will consider the taxpayer’s
application on whether the request is granted. The Minister of Finance will examine
the requirements in the form of a tax due repayment along with ines, assessments of
taxpayer’s good faith, and also for the sake
of national income. Although taxpayer has paid tax due and the ine, but if the Minister
of Finance refused, so that towards the SP3
petition to the Attorney General will not be delivered and the case will proceed to court.
Based on interview to the Attorney General, every case concerning termination
of the investigation which is requested by Minister of Finance and submitted to the
Attorney General would be granted as long as the taxpayer is not involved in other crimes
such as corruption, money laundering and so on. In case of criminal offenses that are
requested SP3 by the Minister of Finance, there are other elements of crimes that is not
purely a tax crime, so that the application for termination of the investigation will be
rejected and the case will be transferred to
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Muttaqin, Sugiharti, and Tajudin, Law Enforcement on Taxation Through Non Litigation Mechanism
the court. Taxation laws embraced a self-
assessment system which gives full credence to the taxpayer to calculate, set, and deposit
the tax due by their selves. Thus, this suggest that the tax authorities give authority to the
taxpayer, so that taxpayer reports regarding their taxes should be justiied by the tax
authorities. The presumption of innocence
principle will be implemented towards taxpayer to fulil their rights and obligations
as has been set forth in the legislations along
yet proven otherwise. Thus, the examination as an instrument
to assess the validity of the taxpayer’s report is needed in case here are indications
of taxpayer who does not fulil the rights and tax obligations properly. Based on the
results of this examination will be known whether the report concerning amount of the
tax due, underpaid tax, or the unpaid tax is correct or incorrect. Moreover, it will also
be known whether there is an indication of taxpayer committing an offensecrime or
not. In case there is an indication of taxpayer committing a crime, then there is authority
to conduct inquiry and investigation carried out not by the inspectors but by civil servant
investigators PPNS. Referring to the deinition of criminal
law enforcement, since the case is handled by the investigators, then this has entered
the realm of law enforcement through the litigation mechanism. As a consequence of
that, it will go through various steps start from inquiry, investigation, prosecution,
trial examination until the court verdict is inkrachtvangewijisde.
This mechanism or procedure will obviously take a long time because there is
no time restriction when or how long a case to be settled until the court verdict issued.
Opportunities of criminal law enforcement in the ield of taxation without trial is still
open as long as criminal acts committed by the taxpayer is identiied as purely tax crime,
with the following considerations:
Tax crime is basically an act that violates the provisions of administrative law
that given criminal sanctions. In accordance with the opinion of Wirjono Pradjodikoro,
14
the former chief of the Supreme Court of the Republic of Indonesia, a violation of
the norms of civil law settled by the rules of civil law, a violation towards the norms of
administrative law shall be solved by using the rules of administrative law. This is in line
with the ultimum remedium principle, where criminal sanctions are a last resort when other
sanctions cannot be implemented. Thus, as long as taxpayer committing
violation towards the norms of administrative law that causes losses to the state, it can be
applied to the instrument of sanctions in context of administrative law. By using
the administrative sanction such as paying the tax due or underpaid tax along with
the ines, then the taxpayer obligation has been fulilled. Besides, there are another
instruments that can be used to force taxpayer in order to pay tax by way of coniscation of
taxpayer’s property that can be proceed on auction of coniscated taxpayer’s property,
which is regulated in Law Number 19 of
2000 on the Tax Collection by Giving Forced Letter. The imposition of criminal sanctions
perceived to be ineffective because it would burden the country with the need to provide
a placebuilding along with the living cost of the taxpayer during their period of detention.
Besides, the criminal sanctions implemented to the taxpayer is not remove
their tax due. Even if the taxpayer is imprisoned or being in coninement, towards
14
Wirjono Prodjodikoro, 2003, Asas-Asas Hukum Pidana di Indonesia, Reika Aditama, Bandung, p. 17.
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the obligation of taxpayer to pay the tax due still exists. Similar to the law enforcement
without trial that ever conducted in 1964 and 1984 through the “Tax Amnesty” policy.
Based on the policy of tax amnesty stipulated in Presidential Decree Number 15 of 1964 and
the Presidential Decree Number 26 of 1984, the taxpayers that used these instruments be
exempted from the iscal investigation and their wealth report were not used as the basis
of investigation and criminal prosecution of any kind with the terms of taxpayers
compensation to pay their tax due amounted to a certain percentage of tax due that should
be paid. Likewise, the Taxation General Provisions and Procedures Law 2007,
through Article 37A provides opportunities for taxpayers to get tax amnesty, which is
referred to as a sunset policy. Policy of criminalization towards
certain acts, according Sudarto
15
among others, must consider the principles of “cost
and outcome” cost-beneit principle and the capacity and ability of the law enforcement
agencies, so that it will not exceed burden of the law enforcement agencies’
overbelasting. The imposition of criminal sanctions
for taxpayer is not more favourable than the imposition of administrative sanctions, since
the imposition of criminal sanctions either imprisonment or coninement will not generate
revenues, on the contrary it will increase the
burden on the state. This is understandable considering the harmful elements of the
national income from tax sector to be removed by the tax due repayments along
with the administrative sanctions. In other words, the tax due repayment along with the
administrative sanctions may successfully save the state due to the tax revenue which
gives large contribution to national income has been fulilled.
D. Conclusion
Based on the discussion, it can be concluded as follows: First, the payment of principal tax due
along with an administrative ine that is about to 4 four times of the amount of unpaid tax due or
underpaid tax due, does not eliminate the unlawful nature of the taxpayer. Acts committed by the
taxpayer is still recognized as an act against the law. Thus, it means that the taxpayer acts remain
categorized as acts contrary to the taxation law. In other words, the principal taxes and ines payment
are not being a justiiable act. The payment of the tax due as well as the administrative sanctions
as deined in Article 44B Taxation General Provisions and Procedures Law doesn’t lead to the
abolishment of criminal acts from the taxpayer. The termination of investigation from the Attorney
General towards several criminal cases in taxation cause the investigation of the criminal cases of tax
stops. Termination of investigation by the Attorney General made by the reason of the sake of state
revenue.
Second, termination of the investigation that
caused by payments of principal tax due and its ines from the taxpayer does not mean that Article
44B Taxation General Provisions and Procedures
Law adheres non penal law enforcement. During the law enforcement through a process or mechanism,
inquiry, investigation and prosecution where is applicable under provisions of Criminal Code,
so that the law enforcement under Article 44B Taxation General Provisions and Procedures Law
is still categorized as a law enforcement through judicial mechanisms that will take quite long time.
For the sake of state revenue, as long as the taxpayer do not commit criminal acts out of the criminal tax,
it can be used the existing administration sanctions without any further investigation as a model of law
enforcement in the ield of taxation without going through the litigation process.
15
Sudarto, 2006, Kapita Selekta Hukum Pidana, Alumni, Bandung, p. 62.
