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Indonesian Tax Dispute Resolution in Cooperative Paradigm Compared to United Kingdom and Australia

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Abstract

Since 2012, the statistical data of the tax court shows the increasing number of tax dispute. The procedure of Indonesian tax dispute resolution needs more than 36 months to get legal assurance. It is important to solve the problem immediately. The model of cooperation between taxpayer and fiscal is a new trend adopted by many countries. More than two decades, the recent government has changed the tax system through cooperation and encouraged entrepreneurship. OECD has given a notion on the importance of cooperation between taxpayer and tax administration. United Kingdom and Australia, for instance, have been enhancing their relationship with the taxpayer. It has been implemented by those two countries by giving quick tax dispute resolution service through Alternative Dispute Resolution such as mediation. ADR is expected to be able to create a good relationship right after the dispute ended. Indonesia can make the transformation to cooperative paradigm. Indonesia is able to make a legal breakthrough on the tax dispute resolution using ADR. ADR has the chance to control tax dispute resolution in Indonesia through administrative effort, in form of objection. Discussion with the taxpayer, concerning the objection, is expected to provide win-win solution in reaching an agreement regarding the obligation of tax payment.
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Indonesian Tax Dispute Resolution in Cooperative Paradigm Compared
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ICon-ITSD IOP Publishing
IOP Conf. Series: Earth and Environmental Science 175 (2018) 012203 doi :10.1088/1755-1315/175/1/012203
Indonesian Tax Dispute Resolution in Cooperative Paradigm
Compared to United Kingdom and Australia
Khoirul Hidayah
Faculty of Sharia, Universitas Islam Negeri Maulana Malik Ibrahim Malang, Indonesia
Email: k.hidayah@gmail.com
Abstract. Since 2012, the statistical data of the tax court shows the increasing number of tax
dispute. The procedure of Indonesian tax dispute resolution needs more than 36 months to get
legal assurance. It is important to solve the problem immediately. The model of cooperation
between taxpayer and fiscal is a new trend adopted by many countries. More than two decades,
the recent government has changed the tax system through cooperation and encouraged
entrepreneurship. OECD has given a notion on the importance of cooperation between
taxpayer and tax administration. United Kingdom and Australia, for instance, have been
enhancing their relationship with the taxpayer. It has been implemented by those two countries
by giving quick tax dispute resolution service through Alternative Dispute Resolution such as
mediation. ADR is expected to be able to create a good relationship right after the dispute
ended. Indonesia can make the transformation to cooperative paradigm. Indonesia is able to
make a legal breakthrough on the tax dispute resolution using ADR. ADR has the chance to
control tax dispute resolution in Indonesia through administrative effort, in form of objection.
Discussion with the taxpayer, concerning the objection, is expected to provide win-win
solution in reaching an agreement regarding the obligation of tax payment.
Keyword: tax dispute, alternative dispute resolution, Indonesian tax dispute resolution, tax
administration
1. Introduction
Increasing number of taxpayers and their awareness to pay taxes lead to the increasing number
of tax dispute cases in tax court each year. Dispute is unavoidable in tax system (Mills, 2015). Based
on statistical data of court tax secretary in 2012-2016, there were 49,257 cases. 44,659 cases have been
solved, but 4,598 cases remain unsolved (2017). The number is not equal with the total judges in tax
court, which is only 55. In average, each judge has 291 cases each year. If the number of judges is
divided with the number of panel of judges, which is 18 panels, then each panel will have 889 cases
each year. It is undoubtedly an awful situation.
The unequal number of tax dispute cases and judges leads to the length of case settlement.
Sometimes it takes more than 36 months [1]. The problem becomes a difficult homework for the
government, dealing with justice and legal certainty for taxpayers. The time consuming settlement will
bring a great loss not only for taxpayers but also for the government. It may interrupt the income of
national budget. The accumulation of tax case number in tax court starts from the disagreement in the
level of tax audit. It leads to the issuance of Tax Notice which often leads to tax dispute.
The main problem of taxpayers is their objections often being refused so they lodge an appeal
to the tax court. However, in the process of the appeal, the taxpayers tend to win the case. The fact is
supported with the data of tax court decision in 2016 which shows that the taxpayers often win in the
tax court (2017). It is crucial to find a solution for the case accumulation in Tax court since it
consumes taxpayers’ time and energy in searching for justice and legal assurance. To them, it is better
to spend their time to increase the economic growth rather than to deal with problem in searching for
justice [2].
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Previous studies on tax dispute settlement include comparative study on tax dispute settlement
evaluation between United Kingdom and Australia [3], tax dispute settlement mediation in Netherland
[4], tax dispute settlement mediation in Canada [5], and the reformulation of tax dispute settlement
regulation in Indonesia which mainly focuses on the legal implication of dispute settlement which fail
to be simple, quick and cheap and recommends mediation during the process in tax court [6]. In
Indonesia, the settlement of tax dispute using cooperative paradigm in its administrative legal effort as
done in Australia and United Kingdom is never done before. The study aims to find out the form of tax
dispute settlement using cooperative paradigm in the process of administrative legal effort.
2. Methodology
The study employs a juridical normative research using statute, conceptual, and comparative
approach. The statute approach of the study examines the effort of tax dispute settlement in Indonesia
as stated in Law of Tax Administration and Law of tax Court. The conceptual approach examines the
concept of tax dispute settlement using cooperative paradigm recommended by OECD. Meanwhile,
the comparative approach compares the dispute settlement model employed by UK and Australia. In
the discussion, the researcher first describes the management and regulation of tax dispute resolution
using cooperative paradigm in UK and Australia. Then, the researcher conducts identification and
analysis using juridical qualitative method. To find related laws, the researcher employs legal fiction
method.
3. Cooperative Paradigm In Relating Taxpayers And Tax Authority
Recent global economic crisis leads many companies to save their budget including taxes.
MNC (Multi National Company) as a profit oriented company takes similar step in reducing its tax by
conducting aggressive tax planning. However, the fact brings a negative impact for the country in
which it will lose its tax income. On the other hand, it is important to note that MNC plays an
important role in supporting the economic growth, particularly that of developing countries.
To face economic crisis and the increasing number of tax violence and aggressive tax planning
by MNC, it is important to run a model initiative regarding the relation between taxpayer and the tax
authority. To increase tax compliance among MNC, a new model called cooperative compliance
model has been offered to increase the compliance using cooperative relation. The new model of
cooperative relation between taxpayers and the tax authority is a new trend adopted by many
countries. More than two decades, some governments start to change their tax systems through
friendly cooperative relation and support to encourage entrepreneurship [7]. OECD (Organizational
for Economic Cooperation and Development) and UN have supported their members to establish an
international tax system, to avoid tax dispute among them and to solve the dispute, if it occurs, as soon
as possible. In order to reduce conflict escalation, to improve their relationships with taxpayers and
consequently to enhance voluntary compliance, there has been a recent trend by revenue authorities
internationally in employing different initiatives, including alternative dispute resolution process
without litigation [8]. Two countries which have adopted cooperative paradigm to enhance the
relationship are Australia and UK.
Cooperative compliance is able to solve tax administration problems in developing countries.
It is also able to create a compliance among taxpayers effectively and efficiently. In 2013, OECD
issued the idea completed with its background on the importance of the relation between taxpayer and
tax administration using cooperative relation. The tax administration made by the country is expected
not only through law empowerment but also through taxpayer service improvement [9]. Recently, HM
Revenue and Customs (HMRC) in the United Kingdom (UK) and the Australian Taxation Office
(ATO) in Australia become two revenue authorities which have adopted various forms of in-house
facilitation processes following the conduction of pilot trials [3].
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4. United Kingdom
Tax institution in UK, Her Majesty's Revenue and Customs (HMRC), in 2011 tried to make a
dispute settlement program using Alternative Dispute Resolution [10]. The first program is to provide
ADR for big scale companies and taxpayers with complex tax problems. ADR process involves
independent third party called mediator (accredited mediator). The second program is intended to
provide ADR for Small and Medium-Sized Enterprises and individual taxpayers (SMEi). On the
process of ADR, particularly SMEi, HMRC offers trained facilitators to resolve disputes (without
involving mediators). In the mediation and facilitation programs of the tax dispute resolution, HMRC
involves the neutral third parties such as mediators and facilitators. Recently, the program has been
considered successful and numerously used to overcome the cases of individual taxpayers and small
and medium-sized enterprises. However, HMRC is more careful to employ the mediation in several
big and more complex cases.
In accordance with the evaluation conducted by HMRC, through investigation and several
observations, the dispute resolution by mediation is evidently an effective strategy to cope with the
impasses of the tax dispute in the UK [10]. Furthermore, the mediation is proven to be able to reduce
the time and cost required to overcome the tax dispute (especially for small and medium-sized
individual taxpayers). Mediation is able to shorten the period of dispute resolution from normally 8-23
months to 61 days or 2 months faster. Mediation can also cut down the cost and time required to
resolve tax disputes on the big and complex cases [5].
The observation has shown appropriate and expected results. Subsequently, HMRC commits
to permanently make ADR as a part of tax dispute resolution processes [11]. According to HMRC, the
resolution using ADR is able to achieve the settlement through efficient cost, quickly (resolving
disputes by agreement). The way in which tax disputes are managed and resolved can have a
significant impact on the overall experience that taxpayers may have in interacting with revenue
authorities. This, in turn, can impact on taxpayer voluntary compliance [3].
5. Australia
Following the UK, to implement HMRC as endeavors to resolve disputes through a
cooperative paradigm, Australia commenced to use ADR by Australian Taxation Office (ATO) in
2013 to overcome tax disputes (involving mediation, negotiation, case discussion, conciliation,
evaluation by neutral parties). ATO has developed strategies and big changes on the culture of tax
dispute resolution in Australia [12]. This was conducted after the presence of recommendation from
OECD to improve the relationship with taxpayers. After the recommendation, ATO subsequently
issued Practice Statement Law Administration PS LA 2013/3, Alternative Dispute Resolution (ADR)
in ATO disputes. The regulation contains guidance and principals to apply ADR. The regulation has
provided ease for the taxpayers to cope with tax disputes easily, cost-effectively and quickly.
The regulation of ADR set up by Australia has shown efforts to improve better relationship
with taxpayers. This is seen from the provision explaining that the relationship between ATO and
taxpayers may not end due to conflicts or disputes, as described as follows:
Most taxpayer interactions with the ATO do not end up in dispute. When disputes occur, the
ATO prefers to resolve them as soon as possible at minimal cost to the parties. Most disputes are
resolved quickly and informally through direct ways [13].
The main principal of ATO for dispute resolution is to settle the dispute through dispute
policies and to plan the dispute resolution periodically. ATO has a commitment to taxpayers to try
avoiding the conflict, overcoming the conflict fast, in low-cost, simply, and effectively as well as
implementing it courteously and fairly. In 2015, Australian Centre for Justice Innovation: Civil Justice
Research Online by Tania Sourdin and Alan L. Shanks has carried out evaluation on ADR at
Australian Taxation Office. The result of evaluation showed that ADR were able to save time and cost
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effectively to resolve disputes and the responses of taxpayers were positive. The dispute resolution
was conducted impartially and ADR could provide the legal assurance faster. ADR had been able to
bring trust from the taxpayers. ADR could also reduce the cost which should be paid by taxpayers to
resolve the dispute, which is approximately $70.000 [14].
6. Indonesian Tax Dispute Resolution In Cooperative Paradigm
The regulation of tax dispute resolution by administration legal efforts (Acts of General
Provision and Tax Procedures/KUP) and tax court (Acts of Tax court) in Indonesia has not shown the
existence of cooperative paradigm approaches. In accordance with experience of tax dispute resolution
in the tax court and in order to enhance better relationship post disputes, Indonesia can apply the
dispute settlement using ADR. To overcome the legal issues, which the law has not been able to
answer the more increasing problems in tax disputes and the presence of requirements for taxpayers to
get the dispute resolution quickly, it is necessary to have a legal discovery [15]. Legal fiction [16], by
the existence of phenomena on the implementation of tax dispute resolution using cooperative
paradigms in several countries, can be used by Indonesia as an alternative form of legal discovery to
establish legal changes. In the study of dispute resolution, the focus will be on the dispute settlement
by administration legal efforts only and not litigation efforts.
According to the review of Acts of General Guidelines and Tax Procedures, the opportunity to
implement ADR as mediation is the time when one tries to raise objection. Objection is an action
taken by taxpayers if they are not/less satisfied with the tax stipulation charged on them or for the
reduction/collection by third parties, by a means to submit an objection letter to the Director General
of Taxes. The Letter of Objection Decision is an objection letter to complaint (issued by the Director
General of Taxes/DJP) about the objection decision letter or the reduction/collection by the third
parties proposed by taxpayers. The effort to raise objection is regulated in Article 25 paragraph (5) and
Article 26A UU KUP, paragraph 30 (5) of the Government Regulation Number 74 of 2011 concerning
the Implementation Procedures of Rights and Fulfillment of Tax Obligation, Regulation of the
Minister of Finance of the Republic of Indonesia Number 9/PMK.03/2013 on Procedures of objection
Proposal and it has been amended by PMK RI No. 202/PMK.03/2015.
The employment of mediation as a form of ADR using administrative legal efforts can
establish communication by disclosure principals and friendly manners. Mediation will provide a win-
win solution, and the third parties will help negotiation to make the behalf of both parties satisfied as
well [17]. The third parties are independent and trusted to give consideration of decision to assist
settling the dispute in a courteous manner [18]. Mandatory mediation will make together to achieve a
quick settlement and transformative process by mediator [19]. ADR by mediation will provide the
parties with some freedom to engage from an early stage before the litigation process [20]. Mediation
is voluntary because it is related to taxpayers’ rights [21]. Balancing the interests of taxpayers and
government must be made in a new system that is legislative limitations which must be overcome
[22]. A collaborative relationship between taxpayers and revenue bodies may open an opportunity of
tax disputes settlement using mediation. If it is formed, then the settlement can be done in a courteous
manner. ADR is expected to cut down the number of tax disputes in the tax court, and reduce the loss
of taxpayers on both cost and time in the process of seeking justice. Mediation regulation can be made
by amending KUP in future.
7. Conclusion
In order to cope with the increasing problem in the number of tax disputes in Indonesia, it is
necessary to make tax dispute settlement using a cooperative paradigm. The tax dispute resolution
using ADR as a mediation recommended by OECD and the UK and Australia experience can be used
as endeavors to decrease the number of tax disputes in tax courts and be able to develop better
relationship in post disputes. In accordance with the regulation of tax dispute resolution in Indonesia,
there are opportunities on the process of administration efforts including objection efforts. Mediation
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is expected to actualize proportional justice. Disclosure principals to resolve tax disputes can improve
voluntary compliance. In order to improve the administration services to taxpayers and to make
dispute settlement using a cooperative paradigm, it is required to have the amendment of Law on
General Provision and Procedures of Taxes.
8. References
[1] Inside Tax. Perjalanan Panjang Penanganan Sengketa Pajak di Indonesia.” Inside Profile. Edition
22. (2014) August.
[2] Ilyas W B and Burton R 2012 Manajemen Sengketa dalam Pungutan Pajak. Analisis Yuridis
terhadap Teori dan Kasus (Jakarta: Mitra Wacana Media)
[3] Jone M 2016 What can the United Kingdom’s Tax Dispute Resolution System Learn from
Australia? An Evaluation and Recommendations from a Dispute Systems Design
Perspective. Business School. 12th International Conference on Tax Administration Sydney,
Australia, 31 March & 1 April (2016) 3-40
[4] Vos R 2014 Mediating Tax Disputes in the Netherlands Dutch-Flemish Magazine for Mediation
and Conflict Management 3 (18) 1-7
[5] Stilwell K D 2014 Mediation Of Canadian Tax Disputes. Thesis submitted in conformity with the
requirements for the degree of Master of Laws Faculty of Law University of Toronto
[6] Hadi H R 2017 Reformulasi Pengaturan Penyelesaian Sengketa Pajak di Indonesia. Disertasi
Universitas Brawijaya Malang
[7] Owens J 2012 Tax Administrator, Taxpayers, And Their Advisors: Can The Dinamics of The
Relationship be Changed. Bulletin For International Taxation. September (2012).
[8] EY 2010 Tax Dispute Resolution: A New Chapter Emerges Tax Administration Without
Borders (4)
[9] OECD Tax Intermediaries Study. Working Paper 6 -The Enhanced Relationship. July (2007).
[10] HMRC (2013) https:
//www.gov.uk/government/uploads/system/uploads/attachment_data/file/236489/3852_ADR_
Evaluation_Report_accessible.pdf> [Large or Complex]; HM Revenue & Customs,
Alternative Dispute Resolution for SME’s and individuals: Pilot Evaluation Summary. HM
Revenue & Customs < http://www.hmrc.gov.uk/adr/pilot-evaluation-report.pdf> [SME and
Individual]
[11] HMRC 2012 Resolving Tax Disputes. Practical Guidance for HMRC Staff on the Use of ADR in
Large or Complex Cases
[12] Rob J, Stout A and Smith R 2007 Culture Change in Three Taxation Administrations: From
Command-and-Control to Responsive Regulation. (29:1) Law & Poly 84 for a discussion of
the overall culture change in Australian tax administration in the context of responsive
regulation
[13] Practice Statement PS LA 2013/3. Alternative Dispute Resolution (ADR) in ATO Disputes.
[14] Sourdin T 2015 Evaluating ADR in ATO Disputes: Executive Summary. Evaluation of ADR.
Paper 5. http://www.civiljusticze.info/adreval/5
[15] Sidharta 2013 Pendekatan Hukum Progresif dalam Mencairkan Kebekuan Produk Legislasi.
Dekonstruksi dan Gerakan Pemikiran Hukum Progresif. Konsorsium Hukum Progresif
Universitas Diponegoro Semarang (Yogyakarta: Thaafa Media) p 23-27
[16] Hamidi J 2005 Hermeneutika Hukum (Teori Penemuan Hukum Baru dengan Interpretasi Teks)
(Yogyakarta: UII Press)
[17] Abdurrahman 2008 Penyelesaian Sengketa Melalui Mediasi Pengadilan dan Mediasi Alternative
Penyelesaian Sengketa (Jakarta: Refleksi Dinamika Hukum, Peruri)
[18] Folberg J dan Taylor A 1984 Mediation: A Comprehensive Guide to Resolving Conflic without
Litigation (Cambridge: Cambridge University Press)
[19] Waye V 2016 Mandatory mediation in Australia’s civil justice system Common Law World
Review 45 (2-3) 214235, doi: http://dx.doi.org/10.1177/1473779516645455
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[20] Billingsley B and Ahmed M 2016 Evolution, revolution and culture shift: A critical analysis of
compulsory ADR in England and Canada Common Law World Review 45(2-3) 186213, doi:
http://dx.doi.org/10.1177/1473779516657745.
[21] Hanks M 2012 Perspectives on Mandatory Mediation UNSW Law Journal 35(3) 929-952
[22] Jaglowitz C 1999 Mediation In Federal Income Tax Disputes (Canada: Faculty of Law,
University of Windsor)
... Disputes are an inevitable feature of any tax system. Hidayah (2018) states that since 2012, the Indonesian tax court's statistical data show a growing number of tax disputes. The potential for disputes is especially increasing in e-commerce transactions. ...
... However, the alternative is usually expensive not only for taxpayers but also for the state. Hidayah (2018) suggests that Indonesian tax dispute resolution requires more than 36 months to get legal assurance. It is crucial to solve the problem immediately. ...
... To this end, it has an appeals department with a longstanding record of settling taxpayer disputes outside of a courtroom. Hidayah (2018) believes that in accordance with the tax dispute resolution experience in the tax court and to enhance relationships after disputes, Indonesia should encourage dispute settlements using ADR, which provides room for negotiations between taxpayers and tax authorities. Negotiation is a form of confict resolution in tax disputes between taxpayers and tax authorities (Mathews 2004). ...
... Disputes are an inevitable feature of any tax system. Hidayah (2018) states that since 2012, the Indonesian tax court's statistical data show a growing number of tax disputes. The potential for disputes is especially increasing in e-commerce transactions. ...
... However, the alternative is usually expensive not only for taxpayers but also for the state. Hidayah (2018) suggests that Indonesian tax dispute resolution requires more than 36 months to get legal assurance. It is crucial to solve the problem immediately. ...
... To this end, it has an appeals department with a longstanding record of settling taxpayer disputes outside of a courtroom. Hidayah (2018) believes that in accordance with the tax dispute resolution experience in the tax court and to enhance relationships after disputes, Indonesia should encourage dispute settlements using ADR, which provides room for negotiations between taxpayers and tax authorities. Negotiation is a form of confict resolution in tax disputes between taxpayers and tax authorities (Mathews 2004). ...
... Both taxpayers and the DGT spend a lot of resources to obtain legal certainty in a tax dispute. If tax disputes are not immediately resolved, it could decrease foreign investment because tax is a notable consideration for foreign investors (Hidayah 2018). Setiawan (2021) said that around 5% of taxpayers submit objections to the DGT every year, and 40% of them escalate to legal proceedings to the Tax Court. ...
... However, the number of appeal files submitted to the Tax Court has increased from year to year, although the percentage has decreased. The increase in the number of appeal files at the Tax Court is not accompanied by an increase in the number of Judges at the Tax Court, Hidayah (2018) presents data from the Secretariat of the Tax Court that the number of judges in the Tax Court is only 55 people so that one judge has an average of 291 cases that must be resolved each year. Mr. D1 also states: ...
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