Menurut Kerangka Inklusif OECD/G20, mengatasi tantangan perpajakan yang disebabkan oleh digitalisasi adalah salah satu prioritas utama rezim ini dan telah menjadi fokus utama Proyek BEPS sejak awal. Saat ini, terdapat tiga fenomena penting yang difasilitasi oleh digitalisasi yang mungkin menimbulkan tantangan serius terhadap elemen dasar sistem perpajakan global, yaitu skala tanpa massa, ketergantungan pada aset tak berwujud, dan sentralitas data. Di satu sisi, meningkatnya tantangan-tantangan tersebut telah mengubah seluruh industri dan mengarah pada pengembangan model bisnis baru. Sementara di sisi lain, persyaratan kedekatan fisik dengan khalayak sasaran semakin berkurang yang berarti posisi yurisdiksi suatu badan usaha mungkin berada di luar batas-batas operasi bisnis yang sedang berlangsung. Dampaknya kemudian terjadi pada pembagian hak perpajakan atas penghasilan dari operasi lintas batas. Hal ini terus menantang efektivitas undang-undang alokasi keuntungan dan perhubungan yang ada saat ini (yang disebut dengan isu hak alokasi perpajakan) yang sebelumnya dapat diterima oleh semua negara, baik negara kecil dan besar atau negara maju dan berkembang.
Rezim internasional Kerangka Inklusif OECD/G20 tentang BEPS telah berdedikasi untuk menemukan solusi komprehensif dan berbasis konsensus terhadap tantangan yang timbul dari digitalisasi. Semua anggota Kerangka Inklusif telah mendedikasikan sumber daya yang signifikan dan melekatkan kepentingan politik yang besar untuk menemukan penyelesaian yang tepat waktu atas permasalahan yang ada. Menurut OECD, hasil dari Aksi 1 ini merupakan salah satu hasil yang paling penting di antara 14 Aksi lainnya sejauh ini. Hasil lengkapnya akan ditampilkan pada lampiran sedangkan hasil penting mungkin termasuk di bawah  :
- Mei 2019: Program Kerja untuk Mengembangkan Solusi Konsensus terhadap Tantangan Perpajakan yang Timbul dari Digitalisasi Perekonomian
- Januari 2020: Pernyataan Kerangka Inklusif OECD/G20 tentang BEPS mengenai Pendekatan Dua Pilar untuk Mengatasi Tantangan Pajak yang Timbul dari Digitalisasi Perekonomian
- Oktober 2020: Pernyataan Kerangka Inklusif OECD/G20 tentang BEPS dan penyampaian laporan Cetak Biru Pilar Satu dan Pilar Dua, serta Penilaian Dampak Ekonomi.
- Juli 2021: Pernyataan tentang Solusi Dua Pilar untuk Mengatasi Tantangan Pajak yang Timbul dari Digitalisasi Perekonomian
- Oktober 2021: Pernyataan tentang Solusi Dua Pilar untuk Mengatasi Tantangan Perpajakan yang Timbul dari Digitalisasi Perekonomian
- Desember 2021: Aturan Global Anti-Base Erosion Model (GloBE) – Pilar Dua
- Desember 2022: Paket implementasi Pilar Dua
Currently, the main principle from Action 1 is Two Pillar Solution compromising two pillars obviously, Pillar One and Pillar Two that Indonesia is expecting to be implemented sequentially means Pillar One has to be implemented effectively before Pillar Two starts to be implemented. Pillar One contains a Unified Approach or solution in order to guarantee the fairness of taxation right and basis through revision of the international tax regime that is no longer based on physical presence instead of economic significance presence. Pillar One will become a base of reallocation of taxation right for market jurisdiction on income gained by Multinationals Entities (MNEs) although the MNEs are physically absent in the market jurisdiction. Market Jurisdiction is allowed to gain taxation rights of 25% of residual profit earned by MNEs with a threshold 20 billion Euro or 327 trillion IDR and 10% profitability.
On the other hand, Pillar two is a solution in order to reduce tax competition between nations and protect tax bases consisting of two policy programs which are Global Anti Base Erosion (GloBE) and Subject to Tax Rule (STTR). GloBE is carried out by setting a global minimum of effective corporate income tax rate of 15 percent in terms of country of residence. Whereas STTR authorizes source countries to impose full withholding tax rates without reduced rates in double tax avoidance agreements (Peraturan Penghindaran Pajak Berganda / P3B) if MNEs who are in other countries do not pay taxes in the country of residence. Pillar Two is targeted to all MNEs with a gross turnover threshold of over 750 million Euro or 12 billion IDR as well as the limits specified in country-by-country reporting (CbCR) transfer pricing documentation requirements.
In order to implement Pillar One, the Multilateral Convention (MLC) has to be completed first, meanwhile the MLC is targeted to be signed in the first quarter of 2023 and come into force in 2024. Even though, according to Fiscal Policy Agency of Indonesia’s Ministry of Finance stated that Pillar One might be fully implemented if only Critical Mass of Jurisdiction has ratified the MLC while the critical mass itself still unstated in the draft of MLC. By OECD’s definition of Critical Mass of Jurisdiction means domicile jurisdiction of the majority of Multinational Entities (MNEs) in this case might refer to the United States. Therefore, the implementation of Pillar One is heavily rely on US position in committing to ratified the MLC though other member states also need to comply and ratify the MLC as well.
Unlike Pillar One, Pillar Two is a common approach type and could be adopted individually by each jurisdiction with their own domestic policy. Means it depends on the states unilaterally rather than Pillar One which MLC depends on each other jurisdiction ratification especially by critical mass of jurisdiction. As a matter of fact, as mentioned at the previous article, Indonesia is also insisting that the adoption of Pillar Two be placed rightfully after the Pillar One effectively implemented which currently still holds its MLC. Pillar Two is still under Indonesia’s assessment regarding implication on Indonesia’s tax income and incentive currently in place. In the same time the international regime of BEPS OECD/G20 itself not yet finished the GloBE Implementation Framework, therefore Indonesia still need time to adopt global minimum tax of Pillar Two into its domestic regulation.
In this case, Indonesia highlighted if Pillar 2, which could be implemented unilaterally by each state, precedes the pillar One, that needs to be done multilaterally by MLC or even worst if The MLC and Pillar One failed to achieve, the effect may lead to unilateral measures by each nation. The unilateral measures would make the MNEs who are categorized in Pillar One while most of them residing in advanced countries, especially US could be taxed by each jurisdiction with their own Digital Services Tax (DST) and MLC is trying to eradicate such unilateral measure with a unified approach if its succeeded. The spreading Unilateral Measure between nations might cause potential tax retaliation policy by US and country that having surplus in balance of trade with the US like Indonesia could get its lost by US Tax Retaliation.
Tax retaliation means the US later will raise the import duty rates for countries who enable such unilateral measures or DST, triggering a dilemma for Indonesia who demands to tax digital service but still wants to preserve its export to US. Indonesia itself in 2020 included in one of ten jurisdictions along with Austria, Brazil, Czech Republic, European Union, India, Italy, Turkey, Spain and United Kingdom as suspected country that implied discriminative act towards US digital companies even for France its already get the retaliation by US with the raising duty tariff about 25% toward French Export to US. Therefore, Indonesia as a holder of G20 Presidency highly emphasize to member of G20 and also OECD including the US regarding the fulfillment of Pillar One with its MLC firstly before starting to adopt Pillar Two or perhaps before each member states enacting unilateral measures that leads to tax retaliation from country like US. Indonesia also highlighted the role of developing nations in designing the process of the international regime not only as obligated members.
Although in 2022 the list reduced to six nations and Indonesia excluded while at the same time US in Joe Biden Presidency also avoid the retaliation act and pushing forward for consensus in international tax regime. The current Digital Service Tax enacted in Indonesia is in accordance with Government Regulation In Lieu of Law Number 1 of 2020 determined by Law Number 2 of 2020 that only effective during pandemic occasion and there is not any yet Presidential Decree stated the termination of Pandemic status.  Even more the current Presidential Decree Number 24 of 2022 stated pandemic states still enabled recently by means Indonesia still enable its temporary Digital Service Tax Law. The rest of regulation that might come close are:
- Article 32A of The Law No.7 of 2021 on Harmonization of Tax Regulation
- Article 48-54 of The Government Regulation No.55 of 2022 on Adjustment of Regulation of Income Tax in Chapter VIII Regarding Implementation of International Agreements in The Field of Taxation
- Regulation of Minister of Finance Number 60/PMK.03/2022 regarding Procedures for Appointing Collector, Collection, Deposit, and Reporting of Value Added Tax on Utilization of Intangible Taxable Goods and/or Taxable Services from Outside the Customs Area within the Customs Area through Trading through the Electronic System
- Regulation of Minister of Finance Number 68/PMK.03/2022 regarding Income Tax and Value Added Tax on the Implementation of Financial Technology
- Regulation of Minister of Finance 69/PMK.03/2022 regarding Value Added Tax and Income Tax on Crypto Asset Trading Transactions
In conclusion, Action 1 of BEPS Inclusive Framework is an effort in order to address the tax challenges induced by digitalization. The main perpetrator is the requirement for physical proximity to target audiences steadily decreasing and might be outside the jurisdiction of its business operation affecting the distribution of taxation rights on income from cross-border operations. Therefore 2 Pillars Solution introduced by this international tax regime consists of Pillar One with its unified approach to dismiss unilateral measures through MLC and Pillar Two with its two policy programs which are GloBE and STTR. There are some obstacles in implementing both pillars including for Indonesia. For the Pillar One, MLC as an important part to binding member states to implement the unified approach and eradicated unilateral measures is still on hold because it still targeted to be signed on 2023 and quite depend on US as Critical Mass of Jurisdiction because it will affect US Tax from digital service the most. For the Pillar two still although in form of common approach and could be applied unilaterally by Indonesia, but Indonesia insisting the effective implementation of Pillar One before get into the Pillar Two, while Indonesia still assess the effect of the Pillar Two and looking forward for the GloBE Implementation Framework. In temporary while waiting for the two pillars of Action 1 to finished, Indonesia at the same time already has its own unilateral measure from Government Regulation In Lieu of Law Number 1 of 2020 determined by Law Number 2 of 2020, Article 32A of The Law No.7 of 2021 and some Regulation of Minister of Finance in 2022.
TBrights is a tax consultant in Indonesia which currently is an integrated business service in Indonesia providing comprehensive tax and business services
By Olina Rizki Arizal
- October 2015: BEPS Action 1 – Addressing the Tax Challenges of the Digital Economy
- March 2018: Delivery of the Interim Report
- January 2019: Delivery of Policy Note
- February-March 2019: Public Consultation
- May 2019: Programme of Work to Develop a Consensus Solution to the Tax Challenges Arising from the Digitalisation of the Economy
- November 2019: Public Consultation – Secretariat Proposal for a “Unified Approach” under Pillar One
- December 2019: Public Consultation – Global Anti-Base Erosion (GloBE) Proposal under Pillar Two
- January 2020: Statement by the OECD/G20 Inclusive Framework on BEPS on the Two-Pillar Approach to Address the Tax Challenges Arising from the Digitalisation of the Economy
- October 2020: Statement by the OECD/G20 Inclusive Framework on BEPS and delivery of the reports on the Blueprints of Pillar One and Pillar Two, and the Economic Impact Assessment.
- October-December 2020: Public Consultation – Reports on the Pillar One and Pillar Two Blueprints
- January 2021: Public Consultation Meetings – Reports on the Pillar One and Pillar Two Blueprints
- July 2021: Statement on a Two–Pillar Solution to Address the Tax Challenges Arising from the Digitalisation of the Economy
- October 2021: Statement on a Two-Pillar Solution to Address the Tax Challenges Arising from the Digitalisation of the Economy
- December 2021: Global Anti-Base Erosion Model (GloBE) Rules – Pillar Two
- March 2022: Commentary to the Global Anti-Base Erosion Model (GloBE) Rules – Pillar Two
- Early 2022: Public consultations on the implementation aspects of Pillar One and Pillar Two
- July 2022: Public consultation on the Progress Report on Amount A under Pillar One
- Oktober 2022:Public consultation on the Progress Report on the Administration and Tax Certainty Aspects of Amount A under Pillar One
- Desember 2022:Public consultation on Amount B under Pillar One
- Desember 2022:Public consultation document on Pillar One – Amount A: Draft Multilateral Convention Provisions on Digital Services Taxes and Other Relevant Similar Measures
- Desember 2022: Paket implementasi Pilar Dua
 Ibid: https://news.ddtc.co.id/gagalnya-penerapan-pilar-1-beri-jalan-indonesia-terapkan-pajak-digital-43530