Confiscation in Tax Investigation, Here are the Provisions

A confiscation is a form of coercive effort aimed at obtaining evidence related to a criminal act. The confiscation process is not only carried out in general criminal law but also takes place in the settlement of tax criminal disputes.

In general criminal law, confiscation is regulated in Law no. 8 of 1981 concerning the Criminal Procedure Code (KUHAP). Based on Article 1 point 16 of the Criminal Procedure Code, confiscation is a series of actions by an investigator to take over and/or keep under his control movable or immovable objects, tangible or intangible, for proof in the investigation, prosecution, and trial.

Meanwhile, the authority for confiscation in tax disputes is regulated in Article 44 paragraph (2) number 5 of Law no. 6 of 1983 concerning General Provisions and Tax Procedures stated in Law no. 11 of 2020 concerning Job Creation (UU KUP).

To the Article, the authority of the tax investigator is to conduct searches to obtain evidence of books, records, and other documents and to confiscate such evidence.

The definition of confiscation in the field of taxation can be found in the Circular Letter of the Director-General of Taxes No. SE-06/PJ/2014 concerning Guidelines for the Implementation of Criminal Investigations in the Taxation Sector ( SE-06/2014 ) and their attachments.

Based on attachment SE-06/2014, confiscation is a series of actions by an investigator to take over and/or keep under his control evidence material for proof in the investigation, prosecution, and trial.

By the provisions in attachment SE-6/2014, before seizing evidence and other objects, tax investigators must submit a letter of request for a confiscation permit to the local District Court. However, in an urgent situation, confiscation can still be carried out without submitting a confiscation permit first.

Furthermore, if a tax investigator has to confiscate outside his jurisdiction, three things need to be considered. First, ask for a confiscation permit from the chairman of the local District Court.

Second, with the confiscation permit, the investigator reports to the head of the District Court in the area where the confiscation will be carried out. Third, in the implementation of the confiscation, the investigator is accompanied by an investigator from the jurisdiction where the confiscation was carried out.

The party authorized to confiscate in a tax crime dispute is a tax investigator whose name and identity are listed in the confiscation order. Tax investigators must be able to determine objects suspected of being related to criminal acts in the taxation sector so that they are appropriate for confiscation.

Objects that can be confiscated are objects that have been and/or are being used either directly or indirectly to commit criminal acts in the field of taxation and/or other objects.

In addition, tax investigators can also confiscate other documents that do not have a direct relationship with the tax crime being examined. This is done as long as the other letter in question is strongly suspected of being related to a tax criminal dispute.

In conducting a confiscation, the tax investigator must contact the head of the village/kelurahan or the head of the local neighborhood to be asked to be a witness in the implementation of the confiscation. Before the confiscation, the investigator must show identification and a confiscation order to the taxpayer or his representative or the person in control of the confiscated goods.

In addition, the tax investigator must first explain to the taxpayer or his representative or the person in control of the object to be confiscated the reasons for the confiscation.

The confiscated goods must be shown to the taxpayer or their representative or the person who controls the goods in the presence of two witnesses. After the confiscation is carried out, the investigator immediately prepares a report on the confiscation and a detailed receipt of the confiscated goods.

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