Understanding Indonesian Stamp Duty (Bea Materai)
A contract was entered into by an Indonesian limited liability company (Perseroan Terbatas or PT) with a BVI company, governed under English law, and has a dispute resolution clause stating that any dispute over the contract will be referred to an arbitration organization in Singapore. For one reason and another, the contract signing will take place in Indonesia.
In such case, must the contract be signed with an Indonesian stamp duty (bea materai) seal on it? Is it a ‘yes’ because one of the parties is an Indonesian entity or sincethe signing is in Indonesia? Or is it a ‘no’ because it is governed under the English law?
Beneath the above questions liea simple query of “when” contracts should use a stamp duty seal. This article wishes to explore more on that.
Article 2(1.a) of the Stamp Duty Law states that a stamp duty is imposed to:
“contract letters and other letters made for the purpose of being used as an evidence tool of private-natured conduct, facts or conditions” (emphasis added).
In its non-legalese term, the article means that stamp duty would only be imposed to contracts that would be used for evidentiary purposes.
Of course, it would only make sense to interpret that the article is territorially limited: Stamp duty is only relevant for evidentiary purposes done within the territories of Indonesia.Such interpretation is in line if we were to read Article 5(c) of the Stamp Duty Law which states that a stamp duty is due to be paid for “a document made abroad, when it is used in Indonesia.”
If a stamp duty seal is not placed in a contract, please always bear in mind that the contract will not be null and void, or voidable. Rather, the Stamp Duty Law states that such contract would not be considered or acceptedbygovernment officials, judges, court registrars, bailiffs (jurusita), notary, and other public authorities pursuant to Article 11(1) of the Stamp Duty Law.In other words, they would be inadmissible in Indonesia.
From the information so far, what would be the correct response to the first question posed in this article?
the writer argues that the answer depends on circumstances that are not explained in the hypothetical case: whether the parties intend the contract to serve for evidentiary purposes and whether it will be used in Indonesia.
If for example, the contract concerns the sale and purchase of properties abroad, then the contract would not really need a stamp duty; the contract would probably not be disputed by the parties in Indonesia (noting that any dispute would be referred to a Singapore arbitration), and the contract is not really used in Indonesia (noting that it concerns a property located abroad).
On the other hand, if for example, the contract concerns a farm-in agreement of participating interests in an Indonesian oil & gas block, it is safer to put in a stamp duty seal; notwithstanding the dispute settlement clause, there will always be possibilities that an aggrieved party (especially the Indonesian entity) would still refer the dispute to an Indonesian court and most importantly, noting that the asset is located in Indonesia, it is logical to say that the contract is used in Indonesia. The contract may further be used for evidentiary purposes, e.g. to be submitted to SKK Migas and/or the Ministry of Energy and Mineral Resources to obtain their approval for the farm-in process.
If a contract is required to, but did not, have a stamp duty is it doomed forever to be inadmissible before any Indonesian authorities? The answer is a clear no, as the Stamp Duty Law allows a stamp duty to be paid (or a stamp duty seal to be put in a contract) after it is due in a process usually called as nazegelen (or pemateraian kemudian). This process is regulated under PMK 70/2014. In a nazegelen process, you would only need to put in a stamp duty seal in the contract (in any spaces available), and submit it to a post office. The post office will then put in a stamp (the one using an ink) acknowledging the nazeglen process has been done lawfully. As per PMK 70/2014, in some circumstances an administrative sanction in the amount of 200% of the stamp duty may be imposed. In practice, the administrative sanction is done by putting in two more stamp duty seals in the document. Hence for those contract that is subject to the administrative sanction, you would see a three stamp duty seals (with the post office’s own inked stamp) be put on it.
Theodore M. Amarendra
Senior Associate RAH & PARTNERS LAW FIRM
This article is intended strictly informational purposes. It is not
intended as a legal advice or to solicit any business. You should not take, or
refrain from taking, any legal action based upon the information contained in
this article without first seeking professional counsel.
 Law of the Republic of Indonesia No. 13 of 1985 regarding Stamp Duty
 To pay for a stamp duty, Article 6(2.a) of the Stamp Duty Law states that it is done by using a stamp duty seal. This is the underlying legal basis for our daily use of a stamp duty seal in contracts or other document.
 note that aside from the commonly seen Rp.6.000,- stamp duty seal, there is also the Rp.3.000,- stamp duty seal
 Government Regulation No. 24 of 2000 regarding Change of Stamp Duty Tariff and Nominal Value Amount Limits that Are Imposed with Stamp Duty
 Ministry of Finance Regulation No. 70/PMK.03/2014 of 2014 regarding Procedure For Post-Stamp Duty Payment