The world is now a single market. Raw materials, labor and technical skills come from all over the world. Similarly, markets for products and services are now also transnational. This is because the business environment is changing rapidly, both domestically and globally. This change requires rapid movement of business people to immediately undertake a process of adaptation or adjustment to follow the motion of the pace of change is changing business environment so as not to miss and can develop into much more than the original.
In the world of mining, of PT Adaro Energy is very familiar. Because the company is already well known as a producer of thermal coal in Indonesia is second, single coal miner in Indonesia, and one of the world's premier supplier of thermal coal to market global seaborne. But in 2008, PT Adaro Energy is related to a problem that cost the state by dragging and transfer pricing. In the practice of transfer pricing, PT Adaro sells its coal to its affiliated companies, Coaltrade Services International Pte. Ltd is located in Singapore and in person it is very detrimental to the country because of the sales practices of PT Adaro has manipulated tax evasion and royalties to the state with a transaction that is not fair (not according to the price of coal on the market).
Transfer pricing practices were once only done by the company solely to assess the performance of the divisions among the members or firm, but along with the times of transfer pricing practices are also often used for tax management is an attempt to minimize the amount of tax to be paid.
Transfer pricing is done by PT Adaro Energy tough revealed. Because at that time, Indonesia does not have a standard price of coal sold commonly used. The absence of standard prices make it difficult to determine whether the rates imposed under the standard or not. In this case, PT. Adaro Indonesia (Adaro Energy PT) suspected of selling coal at below market prices to affiliated companies in Singapore in 2005 and 2006. But then sold again in the market according to the market price. This is intended to avoid the royalties paid to the state.
Adaro issue has been a concern that the prodding of House of Representatives Commission VII Department of Energy and Natural Resources (EMR) to investigate the case.
B. PROBLEM FORMULATION
1. What is the result of transfer pricing by PT Adaro Energy to the state?
2. What causes the transfer pricing by PT Adaro Energy's difficult to prove?
3. What sanctions should be imposed on the irregularities committed by PT Adaro Energy?
4. How is the government's efforts to prevent transfer pricing cases going back?
C. OBJECTIVE OF THE WRITING
1. To know the result of transfer pricing by PT Adaro Energy to the state.
2. To determine the cause of transfer pricing by PT Adao Energy is hard to prove.
3. To determine which sanctions should be imposed on the irregularities committed by PT Adaro Energy.
A. PARTINENT IDEAS
1. Corporation (PT)
PT is a statutory body established under the agreement that do business with the entire tertetu capital divided into shares and meet the requirements set forth in the statute and its implementing regulations. Legal basis for the establishment of PT, are as follows:
a. Close PT, by Act 1 of 1995 on Limited Liability Companies.
b. Open PT, under Law No.1/1995 and Law No. 8 of 1995 on Capital Market.
c. PT domestic investment, by Act 6 of 1968 in conjunction with Law 12 of 1970 on Domestic Investment.
d. PT PMA, based on Law No. 1 of 1967 in conjunction with Law No.11 of 1970 concerning Foreign Investment.
e. PT (Persero), under Law No.9/1969 on Establishment of State and Government Regulation 12 of 1998 on the Company.
Classification of PT visits from holding stock mutual relations, are as follows:
a. Holding Company is a company that has one or more other companies, and control through voting rights on the basis of the percentage of shares in each company concerned; generally, the parent company has its own business; however, if the parent company does not have a separate business, parent company as it is a group company (holding company) is also called the parent company.
b. Subsidiary ) is a company controlled by another company (called the parent company).
c. Affiliated Company is a company which is effectively controlled by another company, or affiliated with the company or some other company because of interest or ownership or the same board.
2. Definition of Transfer Pricing
Organization for Economic Co-operation and Development (OECD) defines transfer pricing as the price specified in the transactions between group members in a multinational company in which a specified transfer price can deviate from the fair market price for his group throughout the match. They can deviate from the fair market price for their position within the state is free to adopt any appropriate principles for corporate.
Simamora in Yeni Mangonting (2000: 70), transfer pricing is defined as a special selling price used in the exchange of inter-divisional division recorded revenues for the seller (selling division) and the division of costs buyers (buying divison).
Transfer pricing is often also referred to as intracompany pricing, intercorporate pricing, interdivisional or internal pricing are prices calculated for the purposes of management control over the transfer of goods and services among members (group of companies). Transfer pricing is usually set for products between (intermediate product) which is the goods and services supplied by okeh division seller to buyer.
When examined it further, transfer pricing can deviate significantly from the agreed price. Therefore transfer pricing is also often associated with a systematically engineered prices that are aimed at reducing the profits will reduce the amount of taxes or duties of a country.
3. Goals of Transfer Pricing
Simamora in Yeni Mangonting (2000: 71) states that the purpose of transfer pricing is to transmit financial data among departments or divisions, the company filled in each time they use the goods and services with each other.
Besided that goals, Ronen and McKinney in Yeni Mangonting (2000: 71) also states that transfer pricing is sometimes used to evaluate the performance of the division and the division managers motivate sellers and buyers to the division decisions are compatible with the overall corporate goals. A transfer pricing system should satisfy three objectives: acurate performance evaluation, goal congruence, and preservation of divisional autonom.
While Hansen and Mowen in Yeni Mangonting (2000: 71) states that within the scope of multinational companies, transfer pricing is used to, minimize the taxes and duties that they incur throughout the world.
4. Methods of Transfer Pricing
Several transfer pricing methods are often used by corporations and conglomerates divisionalisasi / departmentation is:
a. Cost-Based Transfer Pricing.
Companies that use the transfer method to the cost of setting the transfer price variable and fixed costs that can be in 3 forms, is : full cost, full cost plus markup and variable cost plus fixed fee.
b. Market Basis Transfer Pricing.
If there is a perfect market, transfer pricing method based on the market price of these is the most appropriate measure because it is independent. However, the limited market information that is sometimes an obstacle in the use of transfer pricing is based on market prices.
c. Negotiated Transfer Prices.
d. In the absence of prices, some companies allow the divisions within the company with an interest in transfer pricing to negotiate a transfer price desired. Negotiation transfer price reflects controliability perspective inherent in the centers of responsibility for each division are concerned that in the end that will be responsible for a negotiated transfer price.
5. Transfer Pricing in Multinational Companies
There are two objectives/goals to be achieved transfer pricing by multinational companies is:
a. Performance Evaluation.
One of the ways used by many companies in assessing what level of performance is to calculate its ROI or Return On Investment. Sometimes the level of ROI for a division with other divisions within the same company are different from one another. For example, division sellers want a high transfer price which will increase income, which will automatically increase their ROI, but on the other hand, the division buyers demanding a low transfer price which will result in an increase in income, which means also an increase in ROI. This sort of thing is what sometimes makes transfer pricing that is wedged position. Therefore, to overcome this problem, the parent company would be very interested in transfer pricing.
b. Optimal Determination of Taxes
Tax rates between one country to another different. This difference is caused by the economic, social, political, and cultural force in the country. Africa for example, due to the low level of investment, the applicable tax rate in the country is low. But if we are talking about America, it is unlikely that the tax rate applicable in the country are the same as in the African country. It is clear, as in developed countries like America very high level of investment, as evidenced by the growth rate of the enterprise is increasing. On this basis the tax rate is set high in the country concerned.
6. Transfer Pricing in Indonesia
The transfer pricing practices could result in a transfer of income or tax base and / or the cost of a taxpayer to another taxpayer, which can be engineered to reduce the overall amount of tax payable on the taxpayer-taxpayer who has such relationship. Actually lack Multimorbidity that could arise because of the practice of transfer pricing can occur between domestic taxpayers or the State Taxpayers with foreign parties, particularly those domiciled in Tax Haven Countries (countries that do not levy / tax levy is lower than Indonesia) . Directorate General of Taxation, through the Director General of Taxation Circular N0. SE-04/PJ.7/1993 on March 3, 1993 states that lack Multimorbidity from the practice of transfer pricing may occur on:
1) the sales price;
2) the purchase price;
3) The allocation of general and administrative costs (overhead cost);
4) The imposition of interest on a loan by shareholders (shareholder loan);
5) Payment of commissions, licenses, franchises, leases, royalties, compensation for management services, engineering services and return for exchange for other services;
6) Purchase of property by the company's shareholders (owners) or a related party which is lower than the market price;
7) Sales to foreign parties through a third party that is less / have no business substance (example dummy company, letter box company or reinvoicing center).
The following will be given some examples of cases that causes less-fair arising from the practice of transfer pricing, are as follows:
1. Less-fair Sales rice
PT A has a 25% stake in PT B. The delivery of goods to the PT A to PT B,
PT A imposes a selling price of Rp. 160.00 per unit, in contrast to the price calculated on the transfer of the same item to PT X (no relationship) is Rp. 200.00 per unit. In the example above, the market price of comparable (comparable uncontrlled price) on the same item is being sold to PT X is no special relationship. Thus a reasonable price (arm's length price) is Rp. 200.00 per unit. Price is used as the basis for calculating income and / or tax.
2. Less-fair of Purchase Price
Hong Kong H Ltd owns 25% of PT B. PT B importing goods produced H Ltd. at a price of $ 3000.00 per unit. The products were sold to PT Y (no relationship) at a price of Rp. 3500.00 per unit. In the example above, first of all look comparable market prices for the same item, or a similar kind on the purchase / import of existing parties or the special relationship between the parties that there is no special relationship. If the difficulties has been found, then the selling price minus the approaches can be applied, ie by subtracting gross profit (mark-up) plus reasonable other expenses incurred from the taxpayer to the selling price of goods that do not have a special relationship.
If reasonable profit obtained is Rp. 750.00 then, fiscally reasonable prices for the purchase of goods from H Ltd. Hong Kong is Rp. 2750.00 (U.S. $ 3500.00 - USD 750.00). The price of a basic calculation of the cost difference PT B and Rp. 250.00 between debt payments to H Ltd Hongkong with the cost of it should be taken into account as a disguised dividend payments.
3. Less-Fair allocation of general and administrative expenses (overhead cost)
Head office of permanent overseas in Indonesia often allocate general and administrative costs (overhead costs) to the BUT. Allocated costs include:
a. Trainier expense for employers BUT in Indonesia that celebrated kantor pusat di luar negeri;
b. Travel expenses to the directors of the central office of each BUT;
c. Administrative costs / other management from a central office running costs of the company;
d. Costs incurred research and development head office..
The allocation of these costs over the allowable benefits comparable to each permanent and not a duplication of costs.
4. Less-Fair charging interest on a loan by a shareholder.
H Ltd. in Hong Kong has a 80% stake in PT C with a capital that has not been paid Rp 200 million. H Ltd also provide a loan of USD 500 million with an interest rate of 25% or Rp 125 million a year. The prevailing interest rate is 20%. In connection with the above transactions, are required to determine the amount owed back PT C. Loan of USD 200 million is considered as the capital of disguise, so the amount of debt that can be recognized PT C amounted to USD 300 million (USD 500 million - USD 200 million). Interest expense that may be imposed on the borrowing and lending transactions above is Rp 60 million (20% x Rp 300 million), which means there is a positive correction.
5. Less-fair of commission payments, licenses, franchises, leases, royalties, compensation for management services, engineering services and compensation for other service fee.
PT A computer company, to license to PT X (no relationship) as the sole distributor in country X to market the computer program by paying a 20% royalty on net sales. Additionally PT B in country B (no special relation) as the sole distributor and pay a royalty of 15% of net sales. Transactions above the royalty PT B also had 20%. This is because the computer program that is marketed by PT B is equal to that marketed PT X.
6. Purchase of property by the company's shareholders or by a related party at a price lower than the market price.
PT A holding 50% of PT B stocks. Property company PT B form A vehicle purchased at a price of Rp 10 million. The book value of the vehicle is USD 10 million. The market price of similar vehicles in the same state Rp 30 million. From the above transaction can be seen that the market price of the vehicle is comparable to Rp 30 million, the taxable income of the positive corrected PT B Rp 20 million (USD 30 million - USD 10 million). As for a difference in price of USD 20 million is in the form of dividend income by PT B should cut income tax article 23.
7. Sales to foreign parties through a third party that has no business substance (letter box company).
P PT I in Indonesia which has a special relationship with H Ltd. in Hong Kong, two of them is the subsidiary K in Korea. In its PT I export goods directly delivered to the X in the United States at the request of H Ltd. in Hong Kong. The cost of goods is Rp 100 and PT in Indonesia I always charge a price of Rp 110. Moderate H Ltd Hongkong charge X in the United States. The information obtained from the United States shows that X buys goods at a price of Rp 175.
For the next information to indicates that H Ltd Hongkong just a Letter Box Company (reinvoicing center) without business substance. Because of Hong Kong's tax rate is lower than in Indonesia, then there is a hint of any attempt to divert taxpayer taxable profits from Indonesia to Hong Kong in order to obtain n tax savings. Having regard to the function (business substance) of H Ltd Hongkong, then intermediaries such transactions (for tax calculation) is considered non-existent, so the selling price in Indonesia PT I correctued by USD 65 (USD 175 - USD 110).
1. As a result of transfer pricing by PT Adaro Energy to the state
PT Adaro Indonesia (PT Adaro Energy Tbk) is the second largest coal producer in the country which has a flagship product Enviro Coal, low-calorie coal and environmentally friendly. Companies which have coal reserves reach 928 million tonnes with an area of 34 940 hectares of the previous mining conglomerate Tanoto. But, due to the collateral Deutcshe Bank, the company was later bought by a consortium of Indonesian businessmen cheap prices. The consortium, in which Edwin Soryadjaya, Uno Uno S, Teddy Rachmat and Garibaldi Boy Thohir who is now the Managing Director of PT Adaro Indonesia.
PT Adaro Indonesia suspected of committing tax evasion and royalties to the state by way of transfer pricing. Therefore, Adaro manipulation of tax evasion by buying and selling coal unnatural (not in accordance with the international market price of coal) to its affiliated companies Coaltrade Services International Pte. Ltd. of Singapore.
Seven years ago, Adaro entered into an agreement with Coaltrade Services International Pte Ltd, a company paper (paper company) in Singapore. The agreement states that the Adaro coal sold per year at a price and under the prevailing price in the market. Coaltrade and sell at international prices. Who sold not just any coal, but high-grade coal.
In 2005, Adaro sells to companies Coaltrade of Singapore at U.S. $ 26 per ton, while the market price of U.S. $ 48 per ton. Whereas in 2006, Adaro sells to Coaltrade U.S. $ 29 per ton, while the international price of U.S. $ 40 per ton. With 2005 sales volume reached 26 million tons over 2006 and reached 34 million tons, there is a difference between the selling price and the selling price to the international Coaltrade respectively U.S. $ 589.9 million (Rp 5, 8 trillion by 2005 average exchange rate of Rp9.800 / U.S. $) in 2005 and U.S. $ 363.1 million (Rp3, 3 trillion, with the average exchange rate in 2006 Rp9.096/US $) in 2006.
If calculated based on market prices, total revenue in 2005 should amount to U.S. $ 1.287 billion in 2006 and U.S. $ 1.371 billion. Means, there is a difference Adaro sales to sales based on market prices. If in rupiahs reached Rp 9.121 trillion. Not to mention the potential loss of state royalties ranging from 13.5% the value of Rp 1,231 trillion.
As a result of transfer pricing that occurred in 2005-2006 and an estimated Rp 9 trillion from the sale of the hidden. So that losses related state taxes and royalties estimated at Rp 4-5 trillion. Royalties are to be paid according to the value of the sale price. The alleged transfer pricing that decreases the value of sales resulting in taxes and royalties to be paid automatically also fell. In addition, transfer pricing by PT Adaro also indirectly impacted due to the poor people who live in the mine due to the presence of such deviations PT Adaro also have taken away the right of people to obtain government should fund the development of the share of the payment of taxes and royalties the.
2. Cause of transfer pricing by PT Adao Energy difficult to prove
Transfer pricing by PT Adaro was actually started in 2007 due to sticking battle Tanoto conglomerate with Edwin Soeradjaya Cs. From there comes the alleged PT Adaro Indonesia coal sold at below market prices to its affiliated companies in Singapore, Coltrade PTC Services International, Ltd. in 2005 and 2006. By Coltrade, coal was then sold again to the appropriate market price of the market. This is intended to avoid the payment of royalties and taxes that should be paid to the state treasury.
This case was originally reported by the Department of Energy and the Director General of Taxation to the Attorney General, so that this case was handled AGO (Attorney General). But along with the investigations that have been carried out, finally AGO itself has stopped the transfer pricing investigation PT Adaro Indonesia. According to him, this case is already completed and there is no problem in it and conclude that PT Adaro himself has paid all royalties and taxes that pointing.
It is very troubling the hearts of members of the House of Representatives Commission VII, so they are proposed for the formation of the Special Committee to investigate the coal directly on the case, because they considered that the Attorney General has not been incompetent in handling this case. Because transfer pricing case that this happens, so quaint and intricate investigation and must be done carefully and thoroughly.
Complexity of these cases occur because the two companies affiliated with cleverly doing financial engineering by exploiting regulatory weaknesses in Indonesia that is still of profanity (in this case the price of standard coal in Indonesia is still uncertain). Simply put, the model measures the irregularities done is to utilize other firms in the Singaporean and other countries, such as Mauritius and Virgin Island, a favorite place for Indonesian conglomerate to commit money laundering (money laundering).
Both companies manipulate tax evasion by selling coal traksaksi improperly (does not match the price of coal on the international market) with argue to fluctuations in commodity prices. If referring to the available data, clearly states harmed in this case.
Losses due to the country's transfer pricing case is the implication of weakness in terms of national taxation system. Because once I figure poorer until in 2008 the government does not have any guidelines on transfer pricing or tax could also indicate avoidance.
Proof against manipulation attempts indication that price is indeed very difficult. No explanation of how and technical mode is very easy, but it's proving very difficult through the document. This game can not be proved if only examined from ordinary accounting audit mechanism which is conducted every year by the company concerned. Therefore, in their search efforts need mechanisms investigative audit.
3. Sanctions should be imposed on the irregularities committed by PT Adaro Energy
In the case of transfer pricing taxation enters this region, is likely to be completed without any further investigation. Due in mid-2008, Directorate General Taxation Nasution said, Adaro has been called and admitted mistakes on tax and royalty companies.
Adaro also agreed to pay the tax deficiency, but not be fined based on sunset policy. In fact, since the beginning of sunset policy program for the removal of sanctions for individual taxpayers who voluntarily sign up to obtain TIN in 2008. So, not intended for institutions or bodies, especially in large scale enterprise financial calculations have the ability to pay a tax penalty. It's also a big question as Adaro floor plans in the capital market.
When viewed from the side of the law, because transfer pricing tax evasion that has deviated from the applicable tax provisions, because the substance of the state should be able mempajaki multinational companies in larger quantities. Thus do companies that will be subject to criminal sanctions taxation, to Indonesia in accordance with Law No. 16 of 2000 provided for in Article 39, that a tax crime would be punishable by imprisonment of six (6) years and a fine high 4 (four) times the amount of tax payable is not paid or underpaid. The difference between tax avoidance with tax evasion is very thin and the business ethics of the transfer pricing practices can lead to moral hazard, because contrary to applicable regulations.
In addition, the Court per-taxation assessed a comprehensive solution to resolve tax cases, including allegations of transfer pricing tax-manipulation performed a number of companies, also Asian Agri business group. Because the problem of transfer pricing has not been criminally prosecuted, because the actual tax purposes is not punishing people but that money or the right of the state is not manipulated. In the Tax Act article 18 paragraph 3 also confirmed the tax issue is not included in the criminal realm.
4. Government efforts to prevent transfer pricing cases occurred back
Transfer pricing is certainly very detrimental to the state, so as soon as possible as a responsible government of the state itself must act quickly in respon and overcome. Also required the government's seriousness in dealing with taxes and royalties to the state, because indirectly, if the country loses, then the impact will also be influence for the country's own citizens. So that, we need the efforts of the government to transfer pricing cases as that of PT Adaro does not happen again. One, the government's efforts to prevent transfer pricing is adding DG Taxation authority to correct the mutual agreement between the taxpayer of the Interior (WDPN) with their counterparts abroad. Correction is done when there is an indication of inaccuracy of information or documents submitted by WPDN Indonesia and their partners. 
This provision is contained in Article 19 of Regulation Directorate General of Taxation Number Per-48/PJ/2010 on Procedures for Joint Implementation Agreement Procedure (Mutual Agreement Procedure) Based on Avoidance of Double Taxation (P3B). Beleid effective from 3 November 2010.
P3B an agreement between the Government of Indonesia with the state government or partner jurisdictions to prevent double taxation and tax evasion. However, the above efforts will only prevent transfer pricing, and not necessarily to increase tax revenue for the state. however, it depends on the method and the quality of the correction itself Taxation Office. The details, appropriate penalties for perpetrators of transfer pricing should also keep running, because that's where one of the tax revenue for the state as compensation from the embezzlement occurred.
CONCLUSION AND SUGGESTION
1. Talking about taxes and royalties, which is normally found in each person's mind is this is an obligation that must be paid to the State as a form of responsibility and aspirations of a people. However, there are those who assume that the payment of taxes and royalties to the state is something that is very difficult, so there was a deviation in the form of transfer pricing cases. One of its associated companies is PT Adaro Energy. This case is very detrimental state, let alone the number has reached trillions. In addition to the state, people who live in the mine area was also not miss out the case due to the development fund.
2. Transfer pricing cases oeh PT Adaro is very difficult to accomplish. Because the government did not have a standard price in the sale of coal, so that although the mode that was already known, but the proof is very hard to do.
3. In the case of transfer pricing is, in the end Adaro also admitted that the company had meakukan irregularities. Adaro also agreed to pay the tax deficiency, but not be fined based on sunset policy. In fact, since the beginning of sunset policy program for the removal of sanctions for individual taxpayers who voluntarily sign up to obtain TIN in 2008. So, not intended for institutions or bodies, especially in large scale enterprise financial calculations have the ability to pay a tax penalty.
4. Transfer pricing case is a case that is very detrimental to the state. And if this occurs, then increase the country's foreign exchange deficit will be even longer. And to prevent this, the government has endeavored to prevent the occurrence of this case, by adding the Directorate General of Taxation authority to correct the mutual agreement between the taxpayer of the Interior (WDPN) with their counterparts abroad. Correction is done when there is an indication of inaccuracy of information or documents submitted by WPDN Indonesia and their partners.
As a country that upholds the law, already we should be as a citizen to obey and developing countries rich in natural resources, especially minerals. How, by paying taxes and royalties as a form of aspiration and responsibility as citizens. Do not just demand, process, and take the resources that exist in nature, but do not want to develop it. And the government also has tightened his shoe's tax and royalty issues, because this is a sensitive issue and concerns countries also.
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