Directory
of Decisions of the Supreme Court of the Republic of Indonesia
DECISION
Number 1806/B/PK/Pjk/2021
FOR THE SAKE OF JUSTICE BASED
ON THE ALMIGHTY DEITY OF THE SUPREME COURT
examining
tax cases on judicial review has decided in the case:
DIREKTUR JENDERAL OF TAX, domiciled at Jalan Jenderal Gatot Subroto
Number 40-42, Jakarta;
In this case represented by the
attorney Teguh Budiharto, Indonesian citizenship, position Director of
Objections and Appeals, Directorate General of Taxes, and friends, based on
Special Power of Attorney Number SKU-4478/PJ/ 2020, dated 27 October 2020;
Reconsideration Applicant;
Opponent
PT HINO MOTORS MANUFACTURING INDONESIA,
located at Wisma Indomobil II,
Jalan MT Haryono Kaveling 09, Bidara Cina, Jatinegara, East Jakarta,
represented by Satoshi Kajita, Director;
Furthermore, in this case represented
by the attorney Mulyana, S.H., LL.M., and friends, Indonesian citizenship,
Advocates at the Mochtar Karuwin Komar Law Firm, with address in Jakarta, based
on a Special Power of Attorney dated 4 December 2020;
Respondent
of the Judicial Review;
The
Supreme Court;
Read
the relevant documents which form an integral part of this judgement;
Considering,
that based on the relevant letters, it is evident that the Petitioner for
Review has filed a petition for
review of the Tax Court Decision Number PUT- 011133.15/2018/PP/M.VIIIB of 2020,
dated 29 July 2020, which has permanent
legal force, in his case against the Respondent for Review with the following
appeal petitum:
1. Declare that the appeal filed by the Appellant
is admissible because it fulfils all formal requirements;
2. Grant the Appellant's appeal in its entirety.
Therefore, the tax calculation according to the Appellant's calculation should
be as follows:
Description |
Originally (Rp) |
1. Net income |
(135.541.085.571,00) |
2. Loss Compensation |
0,00 |
3. Taxable Income |
(135.541.085.571,00) |
4. Income Tax Payable |
0,00 |
5. Tax Credits |
108.339.355.610,00 |
6. Income Tax Under / (Over) Paid |
(108.339.355.610,00) |
7. Administrative
Sanctions |
0,00 |
8. Amount of income tax accrued/(over) paid |
(108.339.355.610,00) |
Considering,
that upon the appeal, the Appellant filed a letter of appeal description dated
13 February 2019;
Considering,
that the ruling of the Tax Court Decision Number PUT- 011133.15/2018/PP/M.VIIIB
of 2020, dated 29 July 2020, which has permanent legal force is as follows:
-
Granting entirely the Appellant's appeal against the Decision of the Director
General of Taxes Number KEP-00917/KEB/WPJ.19/ 2018, dated 28 September 2018,
concerning Taxpayer's Objection to the Income Tax Overpayment Assessment Letter
Number 00087/ 406/15/092/17, dated 19 July 2017, Tax Year 2015 as corrected by
the Decision of the Director General of Taxes Number
KEP-00058/WPJ.19/KP.0203/2017, dated 23 November 2017, regarding the Correction
of Tax Assessment Letter of Overpayment of Income Tax by Position, in the name
of PT Hino Motors Manufacturing Indonesia, NPWP 01.060.143.3-092.000, located
at Wisma Indomobil II, Jalan MT Haryono Kav 09, Bidara Cina, Jatinegara, East
Jakarta 13330, so that the calculation becomes as follows:
Description |
Total (Rp) |
1. Net Income |
(315.541.085.571,00) |
2. Loss Compensation |
0,00 |
3. Taxable Income |
(315.541.085.571,00) |
4. Income Tax Payable |
0,00 |
5. Tax Credits |
108.339.355.610,00 |
6. Income Tax
Under/(Over) Paid |
(108.339.355.610,00) |
7. Administrative Sanctions |
0,00 |
8. Amount of income
tax accrued/(excess) paid |
(108.339.355.610,00) |
Considering,
that after this final decision was notified to the Applicant for
Reconsideration on 24 August 2020, then the Applicant for Reconsideration filed
a written request for reconsideration at the Registrar of the Tax Court on 11
November 2020, accompanied by the reasons which were received at the Registrar
of the Tax Court on 11 November 2020;
Considering
that the petition for review along with its reasons have been notified to the
opposing party carefully, filed within the time and in the manner prescribed by
Law Number 14 of 1985 concerning the Supreme Court as amended by Law Number 5
of 2004 and the second amendment by Law Number 3 of 2009, in conjunction with Law Number 14 of 2002
concerning the Tax Court, the petition for review is formally acceptable;
Considering,
that based on the memory of the review received on 11 November 2020, which is
an integral part of this Decision, the Applicant for Reconsideration requests
the Supreme Court to give the following decision:
1. Receive
and grant the petition for review of the Tax Court Decision Number
PUT-011133.15/2018/PP/M.VIIIB Year 2020, dated 29 July 2020, requested by the
Petitioner for Reconsideration in its entirety;
2. Cancel
the Tax Court Decision Number PUT- 011133.15/2018/PP/M.VIIIB of 2020, dated 29
July 2020, related to the dispute a quo, because
the court decision has been made contrary to the provisions of the applicable
tax laws and regulations;
3. By adjudicating alone:
3.1.
Reject the Respondent's appeal;
3.2.
Stating that the Decree of the
Director General of Taxes Number KEP-00917/KEB/WPJ.19/2018, dated 28 September
2018, concerning Taxpayer's Objection to Income Tax Overpayment Assessment
Letter Number 00087/406/15/092/17, dated 19 July 2017, Fiscal Year 2015 as
corrected by Decree of the Director General of Taxes Number
KEP-00058/WPJ.19/KP.0203/2017, dated 23 November 2017, regarding the Correction
of Tax Assessment Letter of Overpayment of Income Tax by Position, on behalf of
PT Hino Motors Manufacturing Indonesia, NPWP 01.060.143.3-092.000, located at
Wisma Indomobil II, Jalan MT Haryono Kav 09, Bidara Cina, Jatinegara, East
Jakarta 13330, is in accordance with the provisions of the applicable tax laws
and regulations and therefore has been valid and legally enforceable;
3.3. Stating
that the Income Tax Overpayment Assessment Letter Number 00087/406/15/092/17,
dated 19 July 2017, Fiscal Year 2015 as corrected by the Decree of the Director
General of Taxes Number KEP- 00058/WPJ.19/KP.0203/2017, dated 23 November 2017,
concerning the Correction of the Income Tax Overpayment Assessment Letter by
Position, in the name of PT Hino Motors Manufacturing Indonesia, NPWP
01.060.143.3-092.000, located at Wisma Indomobil II, Jalan MT Haryono Kav 09,
Bidara Cina, Jatinegara, East Jakarta 13330,
is in accordance with the provisions of the prevailing tax laws and regulations
and is therefore valid and legally enforceable;
3.4.
Order the Respondent to pay all costs in this case;
Or if the Panel of Judges
of the Supreme Court who examines and hears this request for Reconsideration is
of another opinion, then please give the fairest possible decision (ex aequo et bono);
Considering,
that against the memory of the review, the Respondent for Reconsideration has
submitted a counter-memory for reconsideration on 21 December 2020, which in
essence the decision of the Tax Court is correct and correct and rejects the
request for reconsideration from the Petitioner for Reconsideration;
Considering,
that against the reasons for the review the Supreme Court is of the opinion:
-
That the tax court's decision
is correct and in accordance with the prevailing laws and regulations;
-
That the correction of Corporate
Income Tax for Fiscal Year 2015 with a positive correction on the positive
fiscal adjustment item amounting to Rp127,749,174,678.00 cannot be maintained,
because the positive correction on the positive fiscal adjustment item that has
been calculated by the Appellant to its affiliated parties has fulfilled the
principles of reasonableness and business prevalence;
-
The selection of the
Appellant's four comparability factors
in terms of characteristics and function is closer to the Appellant's business
function. The five-year multi-year period
(2011-2015) was appropriate because using a three-year multi-year period as the Appellant did was not appropriate because
in 2013-2014 the economy in the automotive sector was in a state of declining
sales;
-
The fact that the impact of
foreign exchange rates (forex adjustment)
in 2013 did not affect the Appellant's condition because most of the
Appellant's companies were located in China where the fluctuations in the CYN
economy did not have a major effect;
-
It is evident in the
Calculation of Return on Total Cost (ROTC)
of the Appellant and the comparable companies as well as the calculation of the
comparable interquartile
range for a five-year multi-year is
as follows:
Description |
ROTC TNMM (Appellant) |
Quartile Range ROTOC Comparison Data |
A.
ROTC calculation with 11 comparators (in accordance with TP Doc 2015, company comparable
manufacturing units/trucks and buses and spare parts) |
3,72% |
2,64%
- 5,31% |
B. ROTOC calculation
with 4 comparators (in accordance with TP Doc 2015, unit/truck and bus manufacturing comparator companies only) |
3,72% |
1,61%
- 4,73% |
C. ROTOC calculation
with 6 comparators (4 manufacturing unit/truck comparators received in TP Doc and 2 comparators
new information received by the Appellant) |
3,72% |
2,01%
- 4,24% |
D.
ROTOC calculation with 13 comparators (11 comparators used in TP Doc 2015 and 2 Appellants of the Appellant) |
3,72% |
2,22%
- 5,19% |
-
That
based on the transfer pricing analysis
with 11,4,6 and 13 comparators as a
whole, the weighted average value of the Appellant's ROTC for 2011-2015 of
3.72% was always between the weighted average inter quartile
ranges of the comparable companies for 2011-2015. Thus, it can be
concluded that the Appellant's controlled transactions were in
accordance with the arms length principle;
Based
on the above considerations, the request for reconsideration filed by the
Applicant for Reconsideration is unwarranted and must be rejected;
Considering
that because the request for reconsideration is rejected, the court costs in
this review must be borne by the Applicant for Reconsideration;
Taking
into account the articles of Law No. 48 of 2009 on Judicial Power, Law No. 14 of 1985 on the Supreme Court as
amended by Law No. 5 of 2004 and the second amendment by Law No. 3 of 2009, Law
No. 14 of 2002 on the Tax Court, and related
laws and regulations;
JUDGE:
1.
Reject
the request for reconsideration from the Applicant DIREKTUR JENDERAL PAJAK;
2.
To
order the Applicant for Reconsideration to pay the costs of the case under
review in the amount of Rp2,500,000.00 (two million five hundred thousand
Rupiah);
Thus
decided in a deliberation meeting of the Panel of Judges on Tuesday, 13 July
2021 by Dr. Irfan Fachruddin, S.H., C.N., Supreme Court Judge appointed by the
Chief Justice of the Supreme Court as Chairman of the Panel, together with Dr.
H. Yodi Martono Wahyunadi, S.H., M.H., and Dr. H. Yosran, S.H., M.Hum., Judges
of the Supreme Court as Members, and was pronounced in a session open to the
public on the same day by the Chairman of the Tribunal in the presence of the
said Member Judges, and Dewi Eliza Kusumaningrum, S.H., M.H., Substitute
Registrar without the presence of the parties.
Member
of the Tribunal: Chairman of
the Tribunal,
ttd. ttd.
Dr H. Yodi Martono
Wahyunadi, S.H., M.H. Dr Irfan Fachruddin, S.H., C.N.
ttd.
Dr H. Yosran, S.H., M.Hum.
Substitute
Registrar,
ttd.
Dewi Eliza Kusumaningrum, S.H., M.H.
Costs:
1.
Stamp Rp 10.000,00
2.
Editorial Rp 10.000,00
3. PK Administration IDR 2,480,000.00
4. Total IDR 2,500,000.00
For Supreme Court of Indonesia
copies on behalf of the Registrar
Junior Registrar of State Administration,
Simbar Kristianto, S.H. NIP
19620202 198612 1 001