MK: Technical-Administrative Rules on Taxpayers‘ Attorney Competence
JAKARTA, DDTCNews - The Constitutional Court (Mahkamah Konstitusi/MK in Indonesian) has stated that implementing regulations concerning the competence of taxpayers' attorneys may only contain technical-administrative provisions that neither add to nor remove the constitutional rights of taxpayer attorneys-in-fact.
This affirmation is contained in the legal considerations of MK Decision Number 341/PUU-XXIV/2026. According to the MK, the authority of the minister of finance to further regulate the competence of taxpayers' attorneys has a limited scope.
The MK stated that the direct delegation of authority from a law to a ministerial regulation is not justified if the substantive content thereof, under the hierarchy of statutory laws and regulations, does not constitute the substantive content of a ministerial regulation.
“… implementing regulations related to the matter applied for by the Applicant, in this case concerning the competence of attorneys in the field of taxation, are limited solely to rules that are technical-administrative in nature and that extend matters which do not affect the addition or removal of citizens' constitutional rights, in casu attorneys in taxation,” reads the MK's consideration.
Article 32 paragraph (3a) of the General Provisions and Tax Procedures (GPTP) Law, as amended by the Harmonisation of Tax Regulations (HPP) Law, provides that an attorney appointed by a taxpayer must possess certain competencies in the field of taxation. This requirement is waived where the attorney is a spouse or a family member related by blood or marriage up to the second degree of lineage.
Referring to the Elucidation of Article 32 paragraph (3a), such certain competencies include, among others, a specified level of education, certification and/or guidance by an association or the Ministry of Finance (MoF). The Elucidation uses the phrases 'among others' and 'and/or' in specifying the forms of certain competencies.
The Elucidation also allows tax consultants or other parties to act as taxpayers' attorneys, provided they satisfy the requirements pursuant to statutory provisions in the field of taxation.
In that context, the MK affirmed that the substantive content of implementing regulations must not prejudice the rights of taxpayers and their attorneys. Such protection applies in the granting of a power of attorney to a party whom the taxpayer considers capable of championing their rights and who, under the law, satisfies the requirements to act as an attorney-in-fact.
On the other hand, the MK also emphasised that such regulations must not obstruct or diminish the state's authority to collect taxes, which is derived from the 1945 Constitution.
These considerations refer to MK Decision Number 63/PUU-XV/2017. In that decision, the MK stated that the law must clearly regulate the requirements for persons who are to act as taxpayers' attorneys, covering both administrative requirements and competency requirements.
The MK rejected the application for the competence of taxpayers' attorneys in Article 44E paragraph (2) subparagraph e of the GPTP Law as amended by the HPP Law. According to the MK, the limits of the Minister of Finance's authority were affirmed in Decision 63/PUU-XV/2017, as reviewed in a previous article. (kaw)