Serial Crimes of Tipijak and TPPU Committed Simultaneously, Is It Possible?
Jakarta-taxjusticenews.com: There is a very interesting quote “There is nothing certain in this world, except death and taxes,” wrote Benjamin Franklin in The Works of Benjamin Franklin: 1817, so prepare yourself to face it. Taxes, when we talk about taxes, what we have in mind is a burden. Tax is indeed a mandatory contribution that is paid to the authorities without receiving direct contravention whose collection can be forced, that is the definition of tax from several experts in the field of taxation. Because there is no direct contravention that can be felt by taxpayers, various methods will be used to avoid it, both legal in nature, namely looking for loopholes in tax regulations by creating a transaction scheme that aims to avoid it (tax avoidance), there are also those that openly daring to fight against not paying taxes by embezzling them (tax evasion). As the above definition of tax can be enforced, regulations are made to enforce it, even though this is as a last resort (ultimum remedium) in accordance with the provisions of Article 38 jo. Article 39 of the KUP Law which was most recently updated with Law Number 7 of 2021 concerning Harmonization of Tax Regulations. In the case that the author researched regarding Tipijak, namely by issuing tax invoices that did not correspond to actual transactions (there is no underlying transaction) which means a fictitious transaction. Among Civil Servant Investigators (PPNS) it is referred to as TBTS Tax Invoice, and the Tipijak case has been decided by the courts at both the District Court (PN), High Court (PT) and Supreme Court (MA) levels. In fact, this case is very easy to identify, the method is issuing fake documents which can harm state revenues (predicate crime) which has unknowingly committed a new crime, namely the crime of money laundering (TPPU) [follow up crime] by keeping the money from the crime. to the convict’s personal account.
In my dissertation, I researched, analyzed and tried to provide proposed solutions regarding the Tipijak (predicate crime) case followed by TPPU (follow up crime) with the same mode, both for the original crime and the subsequent crime using the back to back loan mode, namely a facility transaction scheme. bank loans used to produce goods and/or services which are paid for by the next line company under the pretext of implementing cash pooling as an effort to obscure the origin of the source of the money which actually comes from unreported sales (as a tax object) into a new form namely loan disbursement (as a non-tax object). Without realizing it or even knowingly, they have entered a new phase of crime, namely TPPU, by means of money from tipijak that has been deposited in bank accounts and/or deposits being used as collateral to open short-term and/or long-term credit loans.
Whereas in accordance with the provisions of Article 44C paragraph (1) of the KUP Law, it is stated that fines as intended in Article 39 and Article 39A cannot be replaced by imprisonment and must be paid by the convict. The meaning of this article is clearly intended for tipijak carried out by corporations because corporations do not have physical bodies and souls like humans, therefore fines are the primary punishment and physical imprisonment (in this case for beneficial owners) who benefit from criminal acts in in the field of taxation as a subsidiary penalty.
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 that investigations 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 so that the phrase “detrimental to state income” immediately changes its sound as stated in 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 Finance stopped the investigation, because in fact the state’s goal of paying taxes has been achieved, which is a form of restorative justice, even though restorative justice is given for cases with lower crime levels, minor crimes (Tipiring), if it is not changed it must be to clarify and narrow down the country’s losses on what? Is it on assets (wealth), dividends (profit sharing rights), expenses (costs), liabilities (debts) and equity (equity/capital) as well as revenues (income) of the country? . So it returns to a narrower meaning in the definition of accounting, not a very broad meaning, for example “harmful to the country’s economy”, because with the phrase “harmful [points] to the country” this automatically mandates the Financial Audit Agency (BPK) as the State Auditor institution. thus increasing the BPK’s workload which ultimately slows down the settlement process and cannot be recovered as quickly as possible for the state’s losses. (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 the field of tax accounting.
