When in my previous article I have discussed about bequest, this time I will discuss about Testament of bequest. Basically testament of bequest is the same with ordinary bequest, otherwise there is one thing deviates from the ordinary bequest; it is a stipulation that the granting of bequest must be given when the bequest grantor is still alive. It is different from ordinary bequest, testament of bequest is given after the grantor has passed away.
The bequest granting in testament is done by the bequest grantor in written form stating that there will be granting of bequest to someone, if the bequest grantor passes away. For instance:
Amir has a dwelling house in Jogja. He makes a testament before a Notary, stating that in case he passes away, the house will be given to one of his children. It is Bondan. So, while Amir is still alive, the house remains belongs to Amir. However at the time Amir ceases, based on the testament, Bondan has the right to poses the house.
In practice, in every testament, there is always someone or are some people appointed as executor/s testamentair (testament executor/s). The testament executor is authorized to act as the representative of the heritance grantor in carrying out the testament. In order that Bondan can conduct transfer of title of ownership at local Land office, hence for the letter of heritance mentioned a notary letter of heritance statement must be made, in which there is a quoted content of the mentioned bequest. On the basis of letter of heritance statement and the bequest statement , the executor testamentair signs the deed of bequest which is made before Land Deed Official (PPAT) and in this context, Bondan is the bequest encumber. On the basis of the bequest deed Bondan can proceed transfer of title of ownership.
Counted since the date of the making of deed. The case is as it is ordered in: Article 9 clause 1 letter H Legislation No. 21, 1997 about Cost of Land and Building Right Income juncto legislation No. 20, 2000 about Alteration of Legislation No. 21 /1997 about Cost of Land and Building Right Income . When BPHTB is altered into local tax and income, the stipulation is re-adopted in article 90 clause 1 letter d Legislation No. 28 , 2009 about Local Tax and Local Retribution (UU No. 28/2009 ).
As the generic of Legislation No. 28/2009, it is re-adopted in various local regulations that apply in each region, for instance in Local Regulation/Perda DKI Jakarta No. 18, 2010, etcetera, that apply for especially testament of bequest over land and building. The stipulation, eventually, turns ambiguous in its implementation in its area. The reason is that if it is determined that the taxes must be paid at the time of the signing of Testament of Bequest, the effect is:
1. Income tax (Pph ) and Cost of Land and Building Right Income (BPHTB ) of testament of bequest, must at many times be taken.
At the time of the testament bequest maker signs his deed of testament bequest, he has at once to pay down the taxes. Factually, as in the case that has been discussed, the bequest testament applies in the same way as it is with testaments. It means, that the bequest of goods (in this case land and building) has just been transferred from testament bequest deed maker to the testament bequest encumber. Factually, as the case of testament, the testament maker has the privilege to alter the testament any time and even at any multiple times, as long as he has not yet deceased. By the presence of the regulation, at any alteration of the testament, the grantor and the encumber of testament bequest has again to pay Income Tax (in the case of bequest to someone other than the own child or parent) and BPHTB for testament bequest encumber.
An example of the above case is as the stated below:
Amir has made testament bequest over his house to Bondan. Because of the above described regulation, when Amir signed deed of testament bequest before a Notary, he had to pay Pph totally and Bondan settled the BPHTB. Once, Amir and Bondan were in dispute. In his anger Amir cancelled the bequest testament to Bondan and he made another deed of testament bequest by cancelling out the first deed, hence, he gave the new one to Charlie. Is it because of the later case that Amir had to pay another tax and Charlie had as well to pay the new BPHTB? And hence it goes on and on?
2. How is it if the bequest grantor to be passes away before the testament bequest grantor does? The instance is of the case between Amir and Bondan at point 1 previously described. And how is it if eventually Charlie (the testament bequest encumber II to be) had passed away before Amir (the testament bequest grantor) did?
The effect is, it is again and again Amir has to alter the deed of testament bequest, and gives the later to Deddy. How is it if the taxes have paid down? Can it be considered as that the tax has been settled?
3. The third condition is: anticipating incidents at point one and two above mentioned, the taxes are not paid at once by Amir. Otherwise ten years later when Amir passes away, Bondan who encumbers the testament bequest in the form of a house, at the time he makes a transfer of title of ownership certificate, he can be charged for late fine of ten years. What a horrible thing!
In concern with the case, personally I would suggest that the regulation should be revised / altered because the regulation is not appropriate with the testament bequest concept by itself. The ambiguity, if persists may affect miss perception and miss implied at related field. Hopefully, my opinion can be an input to the practitioners of legislation and policy making, in such that it will not inflict loss upon the public. Let’s pray for it, Amen.