JAKARTA, HUMAS MKRI - According to Article 24 paragraph (1) of Law Number 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations, from the date the bankruptcy decision is pronounced, the debtor by law loses the right to control and manage his assets which are included in the bankruptcy estate. The trial, which was registered by the Court's Registrar under Number 41/PUU-XVIII/2020, was proposed by a foreign investor, namely Taufik Surya Dharma. Furthermore, Sutan mentions the General Elucidation of the Bankruptcy Law which states, "The bankruptcy declaration decision changes a person's legal status to become incompetent to take legal actions, control, and manage his assets since the bankruptcy declaration decision is pronounced." After the debtor is declared bankrupt, then the next person who will take care of the bankruptcy estate is the curator. This is determined by Article 15 paragraph (1) in conjunction with Article 69 paragraph (1) of the Bankruptcy Law. Sutan also explained about the curator based on Article 1 number 5 of the Bankruptcy Law, which states, "The curator is the hall of inheritance or an individual who is appointed by the court to manage and settle the assets of the bankrupt debtor under the supervision of a supervisory judge in accordance with this law." According to him, a limited liability company that has been declared bankrupt is required to pay the tax debt that is still owed before being declared bankrupt. "What is still owed before being declared bankrupt, has not been paid off, it still has to be paid.
So that it can no longer generate profits to be a source of tax obligations of the company.
However, because according to Article 184 of the Bankruptcy Law, after the company is declared bankrupt, the management of the debtor company is stopped. So, don't take care of the PT anymore," said Sutan. According to him, if the management of a limited liability company that has been declared bankrupt is terminated, then the limited company will automatically no longer be able to carry out business activities to generate income and make expenses. So that it can no longer generate profits to be a source of tax obligations of the company. "The company as a legal entity can no longer be burdened with taxes, except that it must continue to pay taxes that are still owed before being declared bankrupt," he explained. According to Article 14 paragraph (2) of the Limited Liability Company Law, the debt of a limited liability company becomes the personal debt of the management only if the bankruptcy occurs due to the fault or negligence of the board of directors and the assets of the bankrupt are not sufficient to pay the entire amount. company obligations. "So, if it has been sold, there is still some left and indeed the bankruptcy was due to the fault of the members of the board of directors, then the members of the board of directors must personally bear the debt," said Sutan. The Bankruptcy Law does not explicitly regulate the management of the business activities of companies that have been declared bankrupt. This means that the Bankruptcy Law does not provide explicit provisions regarding whether after the curator has released the bankrupt boedel, the management by law will regain the authority or right to manage a limited liability company.
This can be seen from Article 204 of the Bankruptcy Law which determines this.
There is no explicit provision in the Bankruptcy Law. In the Bankruptcy Law, it is only determined that the remaining receivables from creditors have not been paid off. This can be seen from Article 204 of the Bankruptcy Law which determines this. After the closing distribution data becomes binding, the creditor regains the right of execution of the debtor's assets regarding their unpaid debts. To prevent the creditors from continuing to collect the remaining debt because the company has completed the bankruptcy settlement action taken by the curator, the shareholders of the company often dissolve the company through a decision of the Extraordinary General Meeting of Shareholders. This is possible based on the provisions of Article 142 paragraph (1) letter a of the Limited Liability Company Law. "So, instead of being chased, yes, it's finished, the company has no assets because it has been liquidated, then the shareholders usually dissolve the company to start creating a new company so that there is a fresh start," said Sutan. The same thing was said by Tjip Ismail, who is an expert on the second Petitioner. He said, based on the KUP Law, those who are responsible for tax obligations, including payment of tax debts, are not only taxpayers, but also tax bearers. However, when a company is in the process of applying for bankruptcy or has been decided by the Commercial Court to be declared bankrupt, the process must be submitted to the court because all settlements of its debts once submitted to the court have been appointed as temporary curator.
Thus, the curator or management that has been stated in the decision is very detailed.
"Thus, for a company that is declared bankrupt, even though it has been stated that the obligation is in the Tax Law, but if it has been declared a process and declared in bankruptcy or has been processed, the obligations have shifted to the curator," said Tjip Ismail. According to Ismail, the KUP Law is a formal taxation law that regulates the rights and obligations of taxpayers who are declared bankrupt in the KUP Law as stated in Article 2 paragraph (6) against NPWP submitting the identification number of a taxpayer declared bankrupt. The NPWP should be in a non-effective state. "So, there should not be a new decision being processed and declared bankrupt, waiting for the verdict from the judge, from the court panel. This is for the sake of justice and legal certainty, we must respect the decision of the judiciary," he explained. Then, he continued, with regard to Article 32 paragraph (2) regarding joint and several responsibilities, the company was declared bankrupt because after being declared bankrupt, let alone being declared inkracht, the settlement had shifted to the curator. Thus, the curator or management that has been stated in the decision is very detailed. Who is responsible and how much of the tax debt is detailed in the court's decision. To note, the application for a material review of the KUP Law was submitted by a foreign investor, namely Taufik Surya Dharma.
UCI (in bankruptcy) has not been removed.
The Petitioner examines Article 2 paragraph (6) and Article 32 paragraph (2) of the KUP Law. The applicant is a former management of PT. United Coal Indonesia (PT UCI) which has been declared bankrupt through the decision of the Commercial Court at the Central Jakarta District Court in 2015. The Petitioner objected to the enactment of Article 2 paragraph (6) and Article 32 paragraph (2) of the KUP Law. Because, the two articles have been used as the basis by KPP for Large One Taxpayers to collect PT. UCI charged to the Petitioner personally with a very fantastic amount of Rp. UCI (in bankruptcy) has not been removed. In fact, the company has been declared bankrupt based on a court decision that has permanent legal force and the entire boedel of the bankruptcy estate is settled by the Curator.
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