Corporate Corruption in the Taxation Sector in Indonesia, What is it?
Jakarta-taxjusticenews.com: The word corruption comes from the Latin corruptio or corruptus. Corruptio has various meanings, namely the act of damaging or destroying. Corruptio is also defined as rottenness, ugliness, depravity, dishonesty, corruptibility, immorality, deviation from purity, words or utterances that are insulting or slanderous. The word corruptio entered English into the word corruption or in Dutch it became corruptie. The word corruptie in Dutch has entered the Indonesian vocabulary as corruption. According to the Big Indonesian Dictionary (KBBI), corruption is the misappropriation or misuse of state money (companies, organizations, foundations, etc.) for personal or other people’s gain. source: https://aclc.kpk.go.id/aksi-information/Eksplorasi/20220411-mengenal-pengertian-kokerja-dan-antikokerjaan.
Corruption, if we talk about corruption then what comes to our mind is that there is a Minister, there is a Governor, there is a Regent, there is a Mayor, there is a District Head, there is a Civil Servant (PNS) or what is now called the State Civil Apparatus ( ASN), both those with the status of contract employees and permanent employees who were caught red-handed committing corruption.
Recently, it is still fresh in our memories the search of a Regent’s office in Sidoarjo, East Java regarding allegations of corruption. Corruption is always associated with public officials because the contents of the Anti-Corruption Law itself consists of 2 (two) main things, namely the first “Abuse of Power”, namely that public officials carry out actions in their positions that enrich themselves, other parties or corporations and those that second is “Break a Law” which is an act of embezzlement of state assets while in office. The author calls this Bureaucratic Corruption (corruption in bureaucracy).
Did we know that the phrase “harming the state” as an element of corruption offenses is not recognized in International Conventions, in this case UNCAC (United Nations Convention Against Corruption), does not explicitly explain the formulation of state losses. Article 3 paragraph (2) UNCAC (Scope of Application section) explains, “For the purposes of implementing this Convention, it shall not be necessary, except as otherwise stated herein, for the offenses set forth in it to result in damage or harm to state property ”. If translated directly, then the scope of application of UNCAC and for the purposes of implementing this convention; The crimes referred to in it do not necessarily, unless stated otherwise, result in loss or damage to state assets, so why does this phrase exist in Indonesia? The answer is because this phrase is widely used by law enforcers to ensnare corruptors.
We already know and have experienced the monetary crisis in 1998 which led to riots which led to massive demonstrations which ended with the collapse of the New Order regime. This started with a domino effect on the bankruptcy of banks in Indonesia which incidentally had large conglomerates with government facilities. Indeed, because at that time there was a regulation that if a public bank, whether government-owned (BUMN Bank) or privately owned, experienced liquidity difficulties, it had to be helped and assisted by the central bank or Bank Indonesia (BI), then an institution was born that took care of matters. that is the National Banking Restructuring Agency (BPPN) which was bailed out with public money from tax levies.
This all has a huge impact on the Indonesian economy. With this enormous impact, why is it not called a criminal act of corruption committed by a corporation, the author calls it Corporate Corruption (corruption in corporation)? In line with the phrase “harming state income” in the provisions of Article 38 in conjunction with Article 39 of Law Number 6 of 1983 concerning General Provisions and Tax Procedures, which has most recently been updated with Law Number 7 of 2021 concerning Harmonization of Tax Regulations, it can clearly be interpreted as an offense corruption.
It is still fresh in public memory that the former Director of Pertamina was able to escape the crime of corruption that he was charged with by taking cover behind the Business Judgment Rule (BJR) Doctrine where BJR was a decision made by the leadership which later turned out to be a mistake, therefore the directors could not was sued because his decision was based on good intentions and was solely for the sake of the company. BJR in Indonesia is widely discussed in corporate circles, especially directors. In court decisions, if there is a case involving the directors, both civil and criminal, it is closely related to BJR. If at the Extraordinary General Meeting of Shareholders (RULBPS) the accountability of the Board of Directors (BOD) has been accepted and approved, then the BOD should receive a release and discharge (R & D), meaning it is released from all responsibility regarding the company or corporation because of its authority. absolutely has been returned in full to the shareholders as the highest owners (rulers) in a corporation in accordance with the provisions of the Limited Liability Company (PT) Law.
The question that arises is can this BJR be implemented in the ASN/Public Official environment? If and only if a decision that has been decided by the leadership is later found to be an error, especially by ASNs in the field of taxation considering that the provisions of tax laws and regulations are included in the category of state administrative law, in the event that one day there is a deficiency in the determination the amount of tax owed is not due to any deliberate intention that can enrich oneself/other people or the corporation, so when the budget has been accepted for accountability in the general session of the House of Representatives (DPR) as the “shareholder” of this country then it should also receive exactly the same treatment. like a corporate BOD, namely free from all responsibilities and demands (release and discharge [R&D]).
In my dissertation, I highlighted that in the case of Tipijak (predicate crime) which can harm state revenues, it can be interpreted as a corruption offense committed by a corporation (corporate criminal liability). Because in fact a company or Limited Liability Company is an organ/body/entity that exists by law which is only files that are controlled by individuals or management in accordance with the definition of Agency Theory that there is indeed a conflict of interest between agents in a company. , both agents as workers (employees) and agents of owners or shareholders (Beneficial Owners). However, legal entities are given the same rights and obligations as individuals.
That therefore, according to promovendus, a Tipijak can be seen as a Tipikor carried out by a corporation to enrich its owner (Beneficial Owner) with the provisions of Article 44C paragraph (1) of Law Number 6 of 1983 concerning General Provisions and Procedures for Taxation as recently updated. with Law Number 7 of 2021 concerning Harmonization of Tax Regulations which implicitly states that those responsible for Tipijak and/or Corruption are corporations with the phrase “the fine as intended in Article 39 and Article 39A cannot be replaced by imprisonment and must be paid by the convict.” In the explanation of Article 44A paragraph (1) it is stated “Sufficiently clear”, it should be clarified so that it is express, not implied. So the fine here is a primary punishment which cannot be replaced by imprisonment as a subsidiary punishment, therefore this article implicitly regulates criminal responsibility by corporations (corporate criminal liability) considering that corporations do not have souls and physical forms like humans (persons) so that imprisonment cannot be applied.
That the phrase “every person” is referred to in the provisions of Article 38 in conjunction with Article 39 paragraph (1) and paragraph (3) in conjunction with Article 39A in conjunction with Article 41A in conjunction with Article 41B in conjunction with Article 41C paragraph (1), paragraph (2), paragraph (3) , paragraph (4) has been emphasized in the Regulation of the Supreme Court of the Republic of Indonesia Number 13 of 2016 concerning Procedures for Handling Criminal Cases by Corporations in conjunction with Supreme Court Circular Letter Number 4 of 2021 concerning the Application of Several Provisions in Handling Criminal Acts in the Tax Sector that every person is interpreted as as individuals and corporations.
Promovendus proposes to law enforcement authorities, firstly, that investigation and investigation activities focus on the flow of money (follow the money), both at the level of the original crime and accompanying crimes. The second proposes that Tipijak be prosecuted against corporations as perpetrators of Tipijak (corporate criminal liability) so that there will be no more cases of puppets who are not actually BO (Beneficial Owners) being sacrificed as those responsible for Tipijak. The third in the prosecution process is to implement Tipijak prosecution as well as TPPU as a “series offense” accompanied by a freeze on the defendant’s assets so that the aim of recovering state income losses can be recovered immediately, and the fourth is the establishment of the Criminal Taxation Law in a separate Law which separate from the KUP Law which regulates the formal provisions of taxation which are currently in force, and finally, immediately amend Article 38 in conjunction with Article 39 paragraph (1) in conjunction with Article 44B paragraph (2) letter a, letter b paragraph (2a) letter a, so that it is not interpreted as a corruption offense, because Corruption is a form of extraordinary crime (extra ordinary crimes) which of course will be very contrary to the provisions of Article 44B paragraph (1) paragraph (2) where there is the authority of the Minister of Finance to stop an investigation which is a form of restorative justice, even though restorative justice is given for cases with lower crime levels, minor crimes (Tipiring). (jis).
Jakarta, 10 February 2024
Joko Ismuhadi Soewarsono*)
*) The author is a doctor candidate in the field of tax criminal law and a doctor candidate in tax accounting.
