PDIP “Melindungi” Rustriningsih Dari Demokrat (Paranoidkah PDIP?)

PDIP “Melindungi” Rustriningsih Dari Demokrat (Paranoidkah PDIP?)

Berita di media cetak hari ini (Suara Merdeka, 27 Agustus 2013, hal 2) menuliskan bahwa PDIP melayangkan ancaman terhadap Rustriningsih bila ikut Konvensi partai Demokrat. Ancaman yang dimaksud adalah, Rustriningsih dianggap muncur dari PDIP jika ikut sebagai salah satu peserta dalam Konvensi yang diselenggarakan Partai Penguasa itu.

Menurut TB Hasanuddin selaku Ketua DPP PDIP, jika Rustriningsih memenuhi undangan dari partai Demokrat maka beliau dianggap sudah keluar dari PDIP, alias bukan kader PDIP lagi. Menurut TB Hasanuddin pula, ideologi PDIP berbeda dengan ideologi Partai Demokrat, sehingga tidak mungkin kader PDIP bisa ikut ambil bagian dalam kegiatan politik partai lain. Selain itu, salah satu hal yang lebih penting adalah jika Rustriningsih ingin tetap memenuhi undangan konvensi Partai Demokrat, maka ia harus mendapat izin terlebih dahulu dari Megawati Soekarnoputri selaku Ketua Umum PDIP.

Menanggapi hal tersebut, Rustriningsih hanya menjawab, “wong belum apa-apa kok diributkan”. Rustriningsih menyatakan bahwa, hingga saat ini dia belum mendapatkan undangan atau permintaan secara resmi dari Panitia Konvensi partai Demokrat, sehingga tidak perlu ada keributan soal itu.

Tindakan oleh PDIP tersebut bisa saja sebagai reaksi “Paranoid” atau sebuah upaya organisatoris biasa yang juga dilakukan oleh Partai lain terhadap anggotanya. Namun, jika itu adalah sebuah wujud Paranoid dari PDIP, maka akan memunculkan beberapa hal menarik yang harus diperhatikan terkait konstelasi politik yang sedang terjadi di PDIP dan juga Demokrat secara tidak langsung. Hal tersebut antara lain, pertama, ada kemungkinan bahwa PDIP takut “kehilangan” kader untuk kedua kalianya setelah Jokowi pada saat Pemilukada DKI beberapa waktu silam. Masih segar dibenak kita semua sebuah iklan di stasiun televisi maupun media masa lainnya,  di mana Jokowi dikatakan sebagai kader dari partai lain. Padahal Jokowi sendiri adalah kader terbaik dari PDIP. Hal tersebut membuat PDIP kebakaran jenggot, dan melahirkan permasalahan yang cukup mengguncang tubuh PDIP. Belajar dari pengalaman itu, maka PDIP tidak akan merelakan salah satu kader terbaiknya, yakni Rustriningsih untuk “diculik” oleh Demokrat. Jika demikian, maka hal tersebut tentu saja akan semakin membuat posisi PDIP menjadi terpuruk untuk menghadapi Pemilu 2014 mendatang.

Kedua, PDIP menyadari bahwa figur dari seorang Rustriningsih merupakan modal besar bagi PDIP untuk menghadapi Pemilu di tahun 2014. Rekam jejak Rustriningsih yang pernah menjabat sebagai Bupati Kebumen dan Wakil Gubernur Jawa Tengah terlihat fantastis bagi PDIP maupun lawan politik dari partai lainnya. Rustriningsih dianggap sebagai sosok perempuan yang dapat menggantikan sosok karismatik dari Megawati Soekarnoputri, terutama dalam memajukan kiprah perempuan di dunia politik. Sehingga, tidak ada alasan bagi PDIP untuk melepaskan begitu saja Rustriningsih kepada Demokrat. PDIP pun akan memainkan perannya untuk “menjual” figur seorang Rustriningsih (jika mau) kepada publik agar dapat menarik suara yang lebih banyak ke tubuh PDIP.

Ketiga, Faktor satu-satunya wakil perempuan di Konvensi Demokrat. Sudah diketahui bahwa Panitia Konvensi partai Demokrat menetapkan 16 calon kandidat, dan 15 diantaranya adalah laki-laki, sedangkan hanya 1 wakil perempuan, dan itu adalah Rustriningsih. Sebagai satu-satunya wakil perempuan dalam konvensi yang diadakan oleh Partai sebesar Demokrat tentu saja memunculkan tanya, apa yang  spesial dari seorang Rustriningsih sehingga Partai Demokrat pun kepincut untuk menjadikannya sebagai salah satu peserta Konvensi? Demokrat tentu sudah melihat potensi besar yang dimiliki oleh seorang Rustriningsih, sehingga ia dianggap sebagai wakil perempuan yang sangat ideal untuk menjadi Capres atau Cawapres pada tahun 2014. Hal itu tentu akan menaikan “nilai jual” Demokrat pada Pemilu 2014 nanti. Jangan lupa bahwa, semua Partai peserta Pemilu 2014 tidak memiliki kader perempuan sebesar Rustriningsih, sehingga modal yang tertanam dalam diri seorang Rustriningsih bagaikan logam mulia yang menjadi incaran banyak partai. Posisi sebagai satu-satunya kader perempuan yang high class inilah yang membuat figur seorang Rustriningsih menjadi begitu diperhatikan. Oleh karenanya, PDIP menyadari betul bahwa Rustriningsih harus “dibentengi” agar tetap menjadi kader dari PDIP . Dengan tetap menjadi kader PDIP, maka semakin banyak strategi yang dapat diusung oleh PDIP dalam menghadapi Pemilu tahun 2014.

Dari ketiga hal yang diuraikan di atas, sedikit menggambarkan bagaimana situasi politik di dalam tubuh PDIP pasca diundangnya Rustriningsih untuk ikut dalam Konvensi Partai Demokrat. PDIP terlihat begitu “Paranoid” menanggapi isu tersebut. Adalah hal yang tidak masuk akal jika kader “sehebat” Rustriningsih dapat dilepas begitu saja oleh PDIP, terutama di tahun politik ini. PDIP pasti sudah memiliki rencana yang matang menghadapi pemilu 2014 bersama Rustriningsih, sehingga upaya untuk melindungi Rustriningsih dari serbuan Demokrat penting untuk dilakukan.

Modal besar sudah dipunyai oleh Rustriningsih sebagai seorang politikus perempuan, namun yang tidak dimiliki adalah kesempatan. Kesempatan besar harus diberikan kepadanya untuk lebih tampil dalam sebagai figur perempuan dalam panggung politik. Hal itupun tergantung dari politik internal PDIP sebagai tempat bernaungnya Rustriningsih. Jika PDIP memang berniat mengorbitkan Rustriningsih, maka kemungkinan untuk memenangkan Pemilu bisa saja terjadi, asal Rustriningsih “dijual” dalam “kemasan” yang benar-benar menarik hati rakyat.

Menarik untuk mengikuti langkah PDIP selanjutnya terkait “melindungi” salah satu kader terbaiknya itu dari serbuan Demokrat…

Double Taxation Avoidance Agreement (DTAA) of Income Tax As Problem Solver According To The Fairness Principle In Constitution 1945

By:

Freidelino De Sousa, SH.[1]Gambar

A.  Background

The Constitution of the Republic of Indonesia (UUD 1945) which is the contract or agreement between the state and citizens is a fundamental principle of law that contains the rights and obligations that must be met by each party either by the state (government) or citizen.[1] On the basis of the constitution, the country running the state, should be in accordance with what is written and be the “soul” of the constitution, so that the wheels of Government and state goals can be achieved.

In the taxation context, as the part of the Contract is in casu 1945 Constitution, then the taxation can not be removed from the ideals of a nation that wants to live as a prosperous country. If viewed closely, the 1945 Constitution  principally outlined four major goals as a state goal; first, forming an Indonesian government that protects the entire nation and the homeland of Indonesia; second, promote the general welfare; third, the intellectual life of the nation; fourth, helped maintain world order.[2] Thus, all state activities including taxation can not be separated from the frame of the goal state is written in preamble of Indonesian 1945 Constitution which in principle put forward the principle of fairness.

Regarding the taxes, the orientation that can be captured is the need of funding by the state for the benefit of the people. The funds obtained from the people themselves. About this ideas, Wiryawan B. Ilyas & Richard Burton stated that:

 “…State require funds for the benefit of the people. Funds expended is certainly derived from the people themselves through a collection called taxes. The levy must first be approved by the people, as expressed in the Constitution 1945”.[3]

So, it appears that in the context of people’s interests, the state can withdraw funds from the people, where the funds are withdrawn (coercive) will be used again for the country’s development, which in turn is also enjoyed by the people themselves.

Constitutionally, taxation is provided in article 23A Constitution 1945 which states that, “Taxes  and other fees that are forcing for the countries purposes stipulated by the Law ”. Tax levy to be based on this Act means it was approved by the people through their representatives in Parliament, commonly called the “juridical principle”. With this principle means that, the Government has given a firm legal guarantees of the right to collect taxes in the country.[1]

Based on tax goals that are intended for the benefit of the people, it is incomplete if it does not understand the meaning of the tax itself. Although many experts expressing their opinions on the definition of a tax, the author will express opinions of Soeparman Soemahamidjaja which states that:

Tax is a mandatory fee, in the form of money or goods, which is levied by the authorities based on the norms of law, in order to cover the cost of production of goods and services collectively to achieve common prosperity”.[2]

Thereby, Soeparman Soemahamidjaja also clearly illustrates that, tax at the principle is the right of state (civic duty) to collect money from the people who have to be based on the law, and the proceeds from the tax levy is for the welfare of the people themselves.

Regarding the tax and state, Romesh Dutt argues:

taxes charged by the King could suppose as dew on the ground which is inhaled by the sun, and then returned as the rain that fertilizes”.[3]

That argument could be justified or strengthen and clarify the meaning of the concept of taxes intended for the welfare of the people. Tax drawn by a state is same as the dew that is inhaled by the sun, and the rain that fell to earth was the result of a development that will be enjoyed by the people through taxes withdrawn. Thus, the tax must be interpreted in full but not in partial meaning.

Therefore, in principle it could be said that both the tax in juridical or theoretical concept does not pose a complex problem, although it could not be denied that for the concept of theoretically, is still many diversity thinking of the tax legal experts, but it does not reduce or eliminate the basic concepts of tax itself.  

Associated with it, the concept of tax to be built by the framers of the  1945 Constitution  is the concept of tax which actually regarding and apply the principles of justice (Fairness) for citizens as taxpayers. Taxation in Indonesia in general could be divided into several types, either by their nature, object, or by agencies that charge. In kind, there are direct and indirect taxes. Direct taxes could be Income Tax, while indirect taxes could be a Value Added Tax.  According to the object, tax consists of subjective and objective taxes, whereas the agency that charge, the tax can be levied by the Central Government and Local Government.[1]

Of the various types of taxes, in this paper the issue to be discussed is about the state levies income tax on taxpayers whose position is still debatable if it used the principle of jurisdiction taxation, based on the principle of domicile and the principle source (Income Sources),[2] then the income tax is levied by the state have an impact on inequality, where the taxpayer might be taxed double.

In the case of Indonesia, of course, based on the 1945 Constitution, the state levies to taxpayers have to remain heed the principle of justice (Fairness), so that the primary function and purpose of taxation continued to perform well and consistently.

In the meantime, up to the discussion of the conflict of the principles of tax by applying tax levy for taxpayers, first consider matters relating to income tax, whether it be setting, connection with taxation principles, and the principles of tax law underlying an income tax can be done.

Theoretically, income tax is one type of tax that is the nature of a direct tax, and the object is subjective because the tax imposed on the taxpayer directly.

Juridically, income tax is imposed on the individuals or entities associated with the income received or accrued during the tax year.[3]

The formulation implies, subject to the tax would be taxed when received or earn income. Subject to the tax has an income in this Act referred to taxpayers. Taxpayers are taxed on income received or accrued during the tax year or can be subject to income tax in the tax year when the part of subjective tax obligation begins or ends in its fiscal year.[4]

Thus, the taxpayers will be taxed is derived from the taxpayer in the country and abroad, who earn or receive income in Indonesia. As regulated in Article 2 paragraph (2) of Law 36 of 2008 that, subject to tax in the tax subject is divided into domestic and foreign tax subject.

Briefly, the domestic tax subject has elements include:

  1. Indonesian citizens (or foreigners) who reside in Indonesia for more than 183 days in 12 months and intends to settle in Indonesia;
  2. A legal entity established or domiciled in Indonesia;
  3. An undivided inheritance as a single entity replaces the right.

Of these arrangement can be seen that, the provisions of the domestic tax subject adheres to the principle of domicile and the principle source. That is an Indonesian residing in both Indonesian citizens and foreigners, and the principle of source would be charged based on income which is received from Indonesia.

While the subject of foreign tax has elements include:

  1. Foreigners citizens (or Indonesian) who does not reside in Indonesia, but earn income in Indonesia. Or foreigners citizens (or Indonesian) who resides in Indonesia, and derives income from Indonesia;
  2. Person who is present in Indonesia for more than 183 days of 12 months, and derives income from Indonesia, or the individual who is in Indonesia for not more than 183 days of 12 months, and do not earn income from Indonesia;
  3. Entities not established or domiciled in Indonesia, but running a business and earn income from Indonesia, or agency that is not established or domiciled in Indonesia, as well as not doing business in Indonesia, but could earn from Indonesia.

From the description of the elements of the taxpayers regulated in the Law 36 of 2008 above, Authors argue, if the traced based on the principles of taxation jurisdiction, it could be seen that the conflict of the taxes principles, which is between the principle of domicile and  principle source could be implicated to double taxation for taxpayer.

Theoretically, the principle of domicile is the principle of taxation based on residence or domicile of a person. A country can only levy taxes on all the people who reside or are domiciled in the country on total income wherever earned, regardless of whether the person is residing nationals or foreigners.[1]

While, the principle of source is a principle of taxation based on income sources or places to be. If a resource is in a country, then that country has the right to collect taxes to any person who derives income from sources such income or place to be.[1]

On the basis of Law no. 36 Year 2008 on Income Tax which adheres to the principle of domicile as well as the principle source (income sources), then it will be problematic when faced with taxpayers who live in Indonesia and got income not only in Indonesia but also in other countries. For example, Mr. Marwata is a resident in Indonesia. Besides of earning in Indonesia, Mr. Marwata also earn income in Singapore. On the basis of residence and source of income, in accordance with article 2 paragraph (3) of Law no. 36 of 2008, Mr. Marwata may be taxed in Indonesia, including income earned in Singapore, because of Indonesia implement the principle of domicile. Similar tax will also be imposed by Singapore to Mr. Marwata when Singapore using the principle of source. This things is believed to cause injustice towards Mr. Marwata as a taxpayer.

Based on the 1945 Constitution that demands justice for all citizens of Indonesia, double taxation received by Mr. Marwata as Indonesian has violated the basic purpose of Indonesian, in particular the purpose of taxation in Indonesia according to the 1945 Constitution.

Therefore, it needs a proper solution so that issues such as this do not continually occur. Principles of taxation in casu principles of state jurisdiction levies against taxpayers which is applied by Indonesia and other countries must remain essentially based on the principle of fairness for taxpayers.

Thus, in particularly Indonesia, passion to create justice for all Indonesian citizens as mandated by the 1945 constitution in tax levy have to continue to promote justice (Fairness) for taxpayers, because besides the demands of the contract (1945 Constitution), the tax levy should also comply with the function and purpose of the tax itself.

When discussing the double taxation for taxpayers, the tax dimension in question is not only included in the domestic dimension but have become as well as part of international tax issues.

As stated by Rachmanto Surahmat that:

Every tax laws always have international aspects, both on the subject of taxes or tax objects. International aspects of the tax legislation reflects the extent to which a country determines the right to levy taxes outside its territory”.[1]

Thus, income tax laws governing the taxation subject both domestic and foreign entered in the context of international tax law, therefore also be associated with other countries through compulsory income tax withheld.

Regarding the income tax as a dimension of international tax, according to Gunadi as cited by Mury Anang Kurniawan argues:

Basically, international tax based on domestic taxation provisions applicable to domestic taxpayers who obtain income from abroad and to foreign taxpayers who obtain income in Indonesia. Besides to the provision of domestic, international taxes are also based on global treaties taxation and practices”.[2]

Based on the opinions above, the author argues that the application of the principle of taxation both in Indonesia and in other countries in the respective tax laws can lead to injustice to taxpayers. This is caused by the taxpayer might be subject to double taxation. Thus, international tax treaties on avoidance of double taxation between countries becomes absolutely necessary.

Mainly for the Indonesia, which is the principle of justice (Fairness) to the taxpayer in accordance with the demands of the 1945 Constitution, a solution to does not impose the double taxation through the agreements of avoidance double taxation with other countries to be an indispensable requirement.

B.              Research Question

Based on the description above, legal issue obtained is: whether the legal action taken by the Government of Indonesia to avoid taxpayers from double taxation, in relation to the application of the principle of domicile and the principle source?              

C.         Discussion

A.     International Aspects Of Law No. 38 of 2008

Referring to the description above was submitted that the Indonesian tax laws also contain an international dimension, then will be described the international aspects of tax laws in the context of Indonesia, particularly income tax.

Fundamentally, the international aspects of income tax law includes several among other things, subject to tax in the country and abroad, a permanent establishment (PE), the income or profits derived from the PE, and the earnings are paid to the subject of foreign tax received from Indonesia.

However, the main focus of this paper is on the domestic subject of taxes and abroad, as well as income subject to foreign tax of Indonesia based on the application of the principles of taxation, in which there is a tendency toward contradiction principle.

  1. Domestic Subject of Taxes

Subject to tax in the country consists of two types of individuals and entities. The elements of individuals domestic subject of taxes are:

  1.  Natural person who resides in Indonesia;
  2. Natural person who is in Indonesia for more than 183 days in a 12 month period;
  3. Natural person who is in a tax year stay in Indonesia and has the intention to reside in Indonesia.

While domestic subject of taxes to entity is, that established and domiciled in Indonesia unless specific unit of government entity that meets the criteria in the income tax law. In addition, domestic subject of taxes is as well included an undivided inheritance which is a unity to replace entitled.

In principle, an individual who became domestic subject of taxes is an individual who resides or dwells in Indonesia. While, include the understanding of individuals residing in Indonesia are those who which is has the intention to resides in Indonesia.[1]

Whereas, to determine the domestic subject of taxes of entity can be seen from the established fiscal domicile or place of it is. The meaning of established in Indonesia is the legal basis for the establishment of the agency, using the laws of Indonesia and then registered in Indonesia.[2]

  1. Foreign Subject of Taxes

Generally, subjects which is included in the qualifying of foreign tax fulfill as follow elements:[1]

  1. Natural person who does not reside in Indonesia;
  2. Natural person who is in Indonesia for not more than 183 days within a period of 12 months or entity which is not established or domiciled in Indonesia which carries on business through a PE in Indonesia.

Juridically, the imposition of income tax on abroad taxpayers, are listed in article 26 of Law 36 of 2008 on income tax which is applying principles withholding tax of 20%.

This arrangement is a breakthroughs to attract investors, but according to the author it’s has not been able to avoid the double taxation for taxpayers.

Therefore, the regulation on the subject of the tax was subject to tax both domestic and foreign basically has an international aspect. With its contained international aspects, the potential for a double taxation on taxpayers is likely to occur, then resulting in injustice to the taxpayer.

B.    Principles Of Taxation

  1. Principle of Domicile

According to this principle, a taxpayer who took residence in Indonesia is taxed on all income earned in Indonesia and abroad, as defined in the Income Tax Ordinance 1944 of chapter 1. To determine the measures of a population, all livelihoods, wherever the location as well its sources, should also be noted. In this case, we didn’t see every nationality, so was foreigner as long as lived in Indonesia, generally shall also be pay income tax on the Indonesian fiscus.[1]

The application of these principles can not be denied by any person who resides in Indonesia, because the rules have to be positive. Thus, as stated by Santoso Brotodihardjo above, using this principle to “force” everyone to pay taxes to the Indonesian fiscus. Perspective is built in such a concept is only at one side of the fiscus, which is Indonesian. It would as well be different or same as other fiscus, in terms of the presence of foreigner residing in the country. If the state is also implementing another principle (the principle source), then it is likely that the taxpayer will be subject to double taxation is likely to occur. This is according to the author raises is precisely burdened and injustice.

Though constitutionally, Indonesia itself has agreed that the purpose of the tax imposed in Indonesia to the taxpayer should be consider the fairness for taxpayers. As stated by Chidir Ali that:

Especially in the field of taxation, the principle of justice is not might abandoned, even this principle has been the basis for the major tax collection held by the state. Because, without this foundation, it could be a waste of tax countries caused misery for its people”.[1]

Therefore, the author argues that the application of the tax based on the principle of domicile is held in Indonesia needs to do a synchronization with other countries, so that taxpayers could be spared from double taxation.

Regarding the mechanism used to it, is to do a Avoidence Double Taxation Treaty by Indonesia and other countries. This will be discussed further in the following sub discussion.

2. The Principle of Source

In this case, the way of taxation depends on the source in a state to collect taxes. If in Indonesia there is a source of income, then Indonesia could levy income tax by not remembering where the taxpayer resides, as well as with the provisions contained in section 2 of the Income Tax Ordinance 1994.[1] Or in other words, it is a principle of taxation based on income sources or places to be. When a resource is in a country, then that country has the right to levy taxes to any person who derives income or from such is income sources.[2]

Thus, the principle of resources more focus on where the income is earned. If an income in Indonesia, then Indonesia is entitled to levy the individual income tax. Or a foreign income in Indonesia, then Indonesia has the right levy taxes from the person.

However, what if an Indonesian who has income in Indonesia, Malaysia and Singapore, but the person is domiciled in Singapore. If viewed from the perspective of Indonesian law, then that person will be taxed on all income not earned in Indonesia, but also from Singapore and Malaysia. However, what if Singapore and Malaysia also apply the principle source in their respective countries? then the taxpayer will pay more taxes than two places at once for the same taxable.

It certainly would be a very heavy burden for the taxpayer, therefore an object of the same tax are taxed at different fiscus, or in other words, the taxpayer is subject to double taxation. For that, once again The author argues that fairness in taxation to the taxpayer must be actually implemented, because basically tax is always serve to the justice. As stated by W. P. Prins that, the tax law as the set of rules governing the taxation always serve justice.[1]

C. Double Taxation Avoidence Agreement (DTAA)

Every country in the world has full sovereignty to tax under domestic law. In an international transaction, precisely when each state maintains domestic rule the country, then it could not be avoided any possibility of double taxation.[1]

It is an indisputable fact that the sovereignty of a country to levy tax under domestic law to the taxpayer. But it would be a problem if the imposition of the tax has been included in the international scope.

As was illustrated in the example of a fictitious case before[2], describing the practice of injustice would occur when applying domestic law of a country to the taxpayer without regard to fairness for taxpayers.

Therefore, an awareness to create the international cooperation in tax levy is necessary. Particularly in Indonesia, an awareness of this, certainly already exists in the original Intent of the formers 1945 Constitution, who promote justice for all Indonesian people, including the income tax levy.

Basicly, the presence of DTAA is to eradicate or to restrict the state autorities to levy the taxes from the taxpayers, on the case it is potentially would be occur the double taxation. Surely, the DTAA have to be based on an agreement first by respective country. Based on that agreement, the DTAA cold be implemented.    

Theoritically, DTAA in accordance to Rachmanto Surahmat is a an agreement signed by two countries, then subject to tax to be targeted are those who are residents in two countries.[1]

It seems that, this opinion is a further elaboration of the formulation set forth in the Organization for Economic Cooperation and Development (OECD), namely, This Convention shall apply to persons who are residents of one or both of the Contracting States.[2]

Agreement between each other country that regulates the tax subject domiciled in both of countries, or income in one or two countries. Thus,  tax subject who are in both countries are bound to DTAA would be alleviated by tax levies, where subject of tax only paying once  taxes to the fiscus, in accordance with what has been set in DTAA.

By agreement between the two countries, certainly waivers will be obtained for taxpayers who are domiciled in a country, but income from other countries or vice versa. Via DTAA the taxpayer may spared from double taxation.

Regarding the DTAA in the Indonesian context, then the question is, how the DTAA position to the Income Tax Act which is a positive law in Indonesia. For that question, exciting to note the opinion Mury Anang Kurniawan:

The position of DTAA in Indonesia against the Income Tax Act are treated as lex specialis. Therefore, if there is a conflict between the Indonesian Domestic Law with DTAA, the existing rules in the DTAA will take precedence. But keep in mind that, the purpose of the DTAA is to avoid double taxation. Thus, there is no double taxation on the same income derived by the same subject”.[3]

Thus, the DTAA undertaken by Indonesia to any country, will become a lex specialis of the Income Tax Act, then no need to worry about sovereignty and the position of the Income Tax Act which became Indonesian positive law.

Another dimension to consider is the kinds of DTAA. Largely, the DTAA consist of two kinds, namely Organization for Economic and Development (OECD) models and the United Nations (UN Model) model.

In teleological, the DTAA models used by state depending on the interests of its. OECD model is created based on the perspective or the interests of developed countries, whereas the UN Model is based on the perspective or the interests of developing countries.[4] The author argues that, regardless of the model used to formulate DTAA not be an issues, because the substance and purpose of the DTAA more important.

Moreover for Indonesia, which is the Rechtstaat[1], where Fairness (justice) is emphasized, the substance of DTAA is more important than the variety of DTAA models.

In association to the 1945 Constitution, the 1945 Constitution philosophically very stressed to the Fairness (justice) for taxpayers. Taxpayer in Indonesia, who also is the Indonesian and the world people, legally protected interests, including in the case of income tax. The tax levied by the state had to be based on a sense of fairness to taxpayers. It is important to remember, the tax itself is basically coercive, and it’s been very burdensome taxpayer. Moreover taxpayers who have suffered double taxation, it will increasingly burden the taxpayer.

Therefore, the implementation of DTAA in the opinion of the Author is a progressive step to bridging the justice principle adopted in the Indonesian constitution by not reduce or eliminate the nature of the tax itself.

Substance of Method of DTAA

Substance in DTAA method used by the countries in the world are basically very diverse, but most states apply two methods, namely, the method of exemption or exclusion (exemption method) and the method of credit (credit method).[1]

a. Exemption or Exclusion Method

The methods of exemption or exclusion, attempt to completely eliminate international double taxation. In the method of exemption or exception, a country is releasing taxing right over income due to an already taxed by the other country. In other words, a country will recognize the exclusive right of taxation in other countries. This exemption method can be done by using the approach; subject exemption; object exemption and tax exemption.[2]

–          Subject exemption method generally applied to members of the diplomatic representatives, consulates, and international organizations. Appropriate to the international custom, ambassadors, members of the diplomatic and consular representatives will only be taxed in the country of residence. This exemption is usually to consider the principle of reciprocity.[3]

With the subject method, taxpayers could be avoid to the double taxation. To be sure that someone will be taxed based on the principles of taxation in each country. However, by applying the method of DTAA that implemented the exemption or exclusion, fairness for taxpayers could be realized.

–          Object exemption method also known as Full exemption or exemption without progression. In this method, foreign income excluded from base taxation to the domestic taxpayer a state.[1]

With this method, the taxation of taxpayers would be worn based on where the source of income is obtained. This means that, if an Indonesian besides income in Indonesia also has income in Singapore, then Indonesia according to this principle can not levy the tax from the person who obtained Singapore, even though the person is domiciled in Indonesia (is subject to principle of domicile). Or in other words, the principle of domicile regime adopted in the Income Tax Act excluded or not implemented according to this method.

By the implementation of this method, is very beneficial to taxpayers who are not only income in a single country. If the previous Indonesia which is adheres to the principle of domicile, has the full right to levy income tax on a person who has income in other countries because the person is domiciled in Indonesia, then Indonesia with this method becomes eligible.

The approach used by this method, of course, in line with the spirit of the 1945 Constitution which emphasizes the principle of fairness for all taxpayers.

–          Tax Exemption

In this method, in principle, foreign income remain exempt from domestic taxation. However, for the purposes of tax calculation and the implementation of tax rates, the effect of foreign income for the taxation of global income is maintained.[2]

If the taxpayer’s income in two countries at once, and one of the country applying this method, the taxpayer would pay taxes to the state that implemented this method to the calculation based on global income.[3]  

By invoking the method, the taxpayer will alleviated, because it would only pay taxes to one country with the specified calculation is based on a clause in the DTAA.

b. Method of Credit of Taxes

This method consists of several ways, namely, the full credit method; limited credit method, and the method of fictitious credit.

–          Full Credit Method

full credit method deduct tax payable or paid in wholly foreign to domestic tax imposed on such income.[1]

–          Usual of Credit of Method

This method provides an international double tax relief, a reduction in foreign taxes on domestic taxes which is allocated on foreign income to the limit on the number of the lowest, between the domestic tax allocated to foreign income and actual tax paid abroad.  

From the various methods which are could be practiced in a DTAA, author argues that whatever the method used throughout aims to prevent taxpayers from double taxation, then it could substantially bring justice for taxpayers.

The present circumstances which is highly influenced by globalization is could not avoid international taxpayers to the double taxation levied. However, through the DTAA and methods contained in it, concerns the taxpayer will be subject to double taxation shall be eliminated.

In particular for Indonesia, based on the the 1945 Constitution that specifically has mandated principle fairnss, DTAA would be a solution which is can not be rejected by the Indonesian Government. With the implementation of DTAA, the hope of justice taxation could be done.

D. Conslusion

According to the explanations above, conclusions are:

  1. Income Tax Act besides has a domestic dimension and becomes positive law in Indonesia, also have an international dimension, especially pertaining to the subject of taxes, and income sources.
  2. The implementation of the principle of residence and source principles applicable rigidly by Indonesia in the income tax levy, actually deliver injustice to taxpayers of Indonesia. This is contrary to the spirit of the 1945 Constitution which is explicitly outlines the implementation of the principle of Justice (Fairness) in any government activity, including in terms of tax levy.
  3. With an enactment of Law no. 36 of 2008 on Income Tax is rigidly, then the potential for the occurrence of double taxation for taxpayers.
  4. To avoid and eliminate the double taxation, the Government of Indonesia could to conduct Taxation Avoidance Agreement (DTAA) with countries that have relevance for levy taxes on taxpayers.

[1] Ibid, pages 38.


[1] Ibid.

[2] Ibid.

[3] The way to count this method is: state 1 income (200,000,000) plus state 2 (100,000,000), then the total is 300,000,000. This is called the total global income, which is divided by the amount of income in state 2, so that, 100,000,000÷ 300,000,000  × percentage of taxes imposed in state 1. The results of these calculations is the amount to be paid by the taxpayer to the fiscus.


[1] Ibid, pages 36.

[2] Anang Mury Kurniawan, Ibid.

[3] Ibid.


[1] In accordence with Article 1 paragraph (3) 1945 Constitution.


[1] Ibid, pages 37.

[2] Article 1, Persons covered, Organization for Economic Cooperation and Development 1928.

[3] Ibid, pages 135.

[4] Ibid, pages 136.


[1] Ibid, pages 133.

[2] Vide, case example in page 5.


[1] Mr. W. P. Prins. Op., Cit., pages 83.


[1] Ibid, pages 90.

[2] Wiryawan B. Ilyas & Richard Burton. Loc., Cit., pages 25.


[1] Chidir Ali. Ibid, pages 80.


[1] Santoso Brotodihardjo. Ibid, pages 89.

  


[1] Rachmanto Surahmat. Persetujuan Penghindaran Pajak Berganda (P3B), Salemba Empat, Jakarta, 2011, pages 3-4.


[1] Anang Mury Kurniawan. Op., Cit., pages. 10.

[2] Ibid, pages 11.


[1] Rachmanto Surahmat. Persetujuan Penghindaran Pajak Berganda, Gramedia Pustaka Utama, Jakarta, 2001, Pages, 10-11.

[2]  Anang Mury Kurniawan. Pajak Internasional (Beserta Contoh Aplikasinya), Ghalia Indonesia, Bogor, 2011, Page 6.


[1] Ibid, peges 25.


[1] Ibid, pages 24.


[1] Ibid, pages, 27-28.

[2] In the case of taxpayers with income of a country, and not domiciled in the country, but the country in which the taxpayer get earnings apply the principle source of income, and state taxpayers domiciled apply the principle of domicile. This will lead to double taxation on the taxpayer.

[3] Article 1, Law Of Income Tax No. 7 of 1983.

[4] Explanation of Article 1 of Law no. 36 of 2008 on the Fourth Amendment Law 7 of 1983 on Income Tax.


[1] Ibid.

[2] R. Santoso Brotodihardjo. Pengantar Hukum Pajak, Refika Aditama, Bandung, 2008, page. 5.

[3] Chidir Ali. Hukum Pajak Elementer, PT. Eresco, Bandung, 1993, page. 1.


[1] In accordance with the principle of consent in the Civil Code that (Indonesian Civil Code, section 1313), the parties have entered into an agreement must to implement what has been agreed is. So that the rights and obligations arising from the agreement should to be implemented.

[2] Fourth Paragraph, the preamble of Constitution of Indonesia 1945.

[3] Wiryawan B. Ilyas & Richard Burton. Hukum Pajak (Edisi Kelima) Salemba Empat, Jakarta, 2011, page 5.


[1] Postgraduete Student of Master of Law, Christian University of Satya Wacana, Salatiga, 2013.

Diskusi Bulanan FH (Apa kabarmu??)

Diskusi adalah salah satu media bagi mahasiswa (yg katanya kaum intelektual) untuk mengolah dan mengasah pikiran untuk menyampaikan sesuatu. Tentu saja untuk sampai pada hal itu, sudah ada informasi atau bahan yang telah didapatkan sebelumnya, baik itu membaca maupun mendegarkan.

Tidak hanya bagi Mahasiswa, namun aktivitas berdiskusi juga menjadi salah satu ciri khas yang melekat pada diri seorang Ilmuwan (Sarjana), karena melalui diskusi pengetahuan yang sudah didapatkan akan diolah sehingga dapat menghasilkan suatu pemikiran-pemikiran yang baru.

Dalam konteks Mahasiswa Fakultas Hukum, budaya berdiskusi tentu dapat dikatakan “Makanan sehari-hari” oleh karena Mahasiswa Fakultas Hukum dituntut untuk memiliki keterampilan itu, sebagai bagian dari skill yang harus dimiliki untuk menjadi seorang Sarjana Hukum nanti. Seorang Sarjana Hukum sebelum mengeluarkan pendapat hukumnya, tentu harus berdiskusi terlebih dahulu, baik itu dengan sesama rekan kerja, atau berdiskusi dengan dirinya sendiri!!

Fakultas Hukum UKSW sudah berusia 50 Tahun, dan sudah banyak menghasilakn Sarjana-Sarjana Hukum yang sudah hidup dan bekerja di Negeri ini. Tentu saja, harapan dibentuknya Fakultas Hukum UKSW adalah untuk menghasilkan Sarjana Hukum yang “berbeda” dengan lulusan sarjana hukum dari Universitas lainnya.

Semenjak menjadi Mahasiswa UKSW 6 Tahun lalu, saya sangat bangga dengan Fakultas Hukum UKSW, karena selain memiliki Dosn-Dosen yang kredibel, juga tidak kalah kualitas dengan Dosen dari Fakultas Hukum Universitas lain.

Semenjak menjadi mahasiswa FH UKSW, salah satu kegiatan yang sangat saya gemari adalah Diskusi bulanan FH UKSW, yang membahas mengenai masalah-masalah hukum yang terjadi sehari-hari. Dosen ataupun Mahasiswa yang dianggap berkompeten akan diminta untuk menjadi Narasumber dalam Diskusi bulanan tersebut.

Seingat saya waktu itu yang menjadi Pengurus Diskusi Bulanan FH UKSW adalah Bapak Umbu Rauta, SH., MH., selaku Kepala Pusat Peneli