Transition from Administrative to Penal Realm: Dynamics of Audit Suspension Due to Preliminary Evidence Examination Proposal

In the architecture of Indonesian tax law enforcement, there is a firm yet dynamic demarcation line between the administrative realm and the penal realm. A Tax Audit (Pemeriksaan Pajak), fundamentally, is an administrative instrument to test compliance. However, in its execution, Tax Examiners often encounter indications of non-compliance that exceed mere administrative errors, namely indications of tax crimes.

When this situation occurs, the tax legal mechanism does not allow two processes (administrative and penal) to run overlappingly in a chaotic manner. The law provides a "bridge" mechanism known as Audit Suspension (Penangguhan Pemeriksaan). Entering a new era with the enactment of Minister of Finance Regulation Number 15 of 2025 (PMK 15/2025), the provisions regarding this suspension are regulated in greater detail to provide legal certainty and protection of Taxpayer rights. This article will thoroughly explore the procedures, conditions, and implications of audit suspension due to a Preliminary Evidence Examination (Bukti Permulaan/Bukper) proposal.

1. Basic Concept and Triggers for Suspension

Preliminary Evidence Examination (Bukper) is an examination conducted to obtain preliminary evidence regarding the suspicion that a tax crime has occurred [SDSN UU KUP 2023, Article 1 number 27].

In a routine audit cycle (compliance testing), if the Tax Examiner finds strong indications of a crime—for example, the use of fictitious Tax Invoices or intentional failure to report significant turnover—the Examiner does not immediately issue a Tax Assessment Letter (SKP). Instead, the Tax Examiner will propose that the audit status be upgraded to a Preliminary Evidence Examination.

Based on Article 23 paragraph (1) of PMK 15 of 2025, an audit to test compliance with tax obligations is suspended if:

1. Indications of a tax crime are found; and
2. It is followed up with an Open Preliminary Evidence Examination or Investigation.

It is important to note that this suspension is carried out for the same Tax Year as the Tax Year undergoing the Preliminary Evidence Examination [Slides PMK-15 of 2025, Page 13]. The philosophy is the principle of ne bis in idem and legal efficiency; the state must not examine the same matter through two different channels simultaneously for potentially conflicting purposes (administrative vs. penal).

2. Administrative Procedure of Suspension: Transparency to Taxpayers

PMK 15 of 2025 emphasizes transparency and procedural fairness. When the decision to suspend the audit is taken, a series of administrative obligations must be fulfilled by the tax authority:

A. Audit Progress Report

Before the suspension is officially executed, the Tax Audit Team must compile an Audit Progress Report (Laporan Kemajuan Pemeriksaan). This document summarizes the chronology, reasons for the Bukper proposal, and a description of temporary audit results [SE-15/PJ/2018, Attachment II.39]. This ensures that the audit trail is well-recorded before shifting to the penal realm.

B. Notification to Taxpayer

The Tax Examiner must notify the suspension in writing. The Notification Letter of Suspended Audit is delivered to the Taxpayer, Representative, Proxy, employee, or adult family member [PMK 15 Year 2025, Article 23 paragraph 3].

• Timing: This letter is delivered simultaneously with the delivery of the Notification of Preliminary Evidence Examination or the notification of the commencement of investigation [PMK 15 Year 2025, Article 23 paragraph 4].

C. Return of Documents

This is a crucial point for Taxpayers. Since the administrative audit status is "frozen," books, records, and documents previously borrowed by the examiner must be returned to the Taxpayer accompanied by a receipt [PMK 15 Year 2025, Article 23 paragraph 5; PMK 15 Year 2025 Attachment O]. This is logical because those documents might later be requested (or seized) by the Investigator/Bukper Examiner under a different legal basis (pro justitia).

3. Post-Suspension Scenarios: Resumed or Terminated?

After the audit is suspended, the fate of that audit depends entirely on the outcome of the penal process (Bukper/Investigation). There are two possible paths: The Return Path (Resumed) or The Dead End (Terminated).

Scenario A: Audit Resumed (Dilanjutkan)

The audit that was "sleeping" will be awakened and its process continued if the criminal element is not proven or the penal process stops halfway without a guilty verdict. Based on Article 23 paragraph (6) of PMK 15 of 2025, the audit is resumed if:

1. Bukper is Stopped: Because no preliminary evidence is found, the event is not a tax crime, or the Taxpayer dies.
2. Investigation is Stopped (SP3): Due to insufficient evidence, not a crime, expiration of statute of limitations, or by law (ne bis in idem / suspect dies).
3. Acquittal Verdict: There is a court decision that has legal force which acquits (vrijspraak) or releases from all legal charges (ontslag).

Execution Technique: If resumed, the Examiner will issue a Notification Letter of Resumed Audit [PMK 15 Year 2025, Article 23 paragraph 9; Attachment OO]. The audit period will continue the remaining time left at the moment suspension occurred.

Scenario B: Audit Terminated (Stop)

The administrative audit will be permanently terminated if the penal process succeeds or the Taxpayer utilizes the penal amnesty facility (disclosure of untruths). Based on Article 23 paragraph (7) of PMK 15 of 2025 jo Article 17 of Government Regulation (PP) Number 50 of 2022, the audit is terminated if:

1. Disclosure of Untruthful Acts (Article 8 paragraph 3 KUP Law): The Taxpayer admits the mistake during Bukper, pays the underpaid tax, and pays a 100% fine.
2. Termination of Investigation (Article 44B KUP Law): The Taxpayer requests termination of investigation by paying an administrative sanction of 3 or 4 times the tax amount.
3. Guilty Verdict (Inkracht): There is a court decision declaring the Taxpayer guilty and it has permanent legal force.
4. Expiration: The Bukper or investigation is stopped because it has passed the prosecution statute of limitations.

If the conditions above are met, the Tax Examiner creates a Summary Audit Result Report (LHP Sumir) to terminate the audit [PMK 15 Year 2025, Article 23 paragraph 12].

4. Strategic Implications for Taxpayers

Understanding these suspension provisions is vital for Taxpayer compliance strategy:

1. Change in Legal Status: Upon receiving a suspension letter, the Taxpayer must realize they are no longer facing administrative sanctions, but the threat of criminal sanctions (imprisonment).
2. Opportunity of Article 8 paragraph (3) KUP Law: Suspension is a "red light" signal. Taxpayers can avoid imprisonment by disclosing the untruthful acts before the investigation begins. This is an effective ultimum remedium.
3. Return of Documents: Ensure all documents are returned upon suspension. This is important for preparing a defense in the subsequent Bukper or Investigation process.
4. Readiness to Face Resumption: If Bukper turns out to find no evidence, Taxpayers must be ready to return to "administrative audit" mode and continue the discussion of findings.

Conclusion

The audit suspension provision in PMK 15 of 2025 is a procedural mechanism ensuring legal certainty so that Taxpayers are not punished doubly (administratively and criminally) for the same error. For Taxpayers, a suspension letter is not a break letter, but a stern warning that their compliance status is being tested at a more serious level. A quick and appropriate response, such as utilizing Article 8 paragraph (3) of the KUP Law, often becomes a lifesaver from heavier legal consequences.