As you may be aware, under Regulation No. PER-04/BC/2017 on Customs Registration Implementation Guidelines (New Regulation), which became effective on 1 March 2017, all importers and exporters operating in Indonesia that intend to apply for, amend or renew their Customs Registration Number/Nomor Identitas Kepabeanan (NIK) now need to:
1. ensure that their foreign directors have work permits (IMTA)
2. provide a copy of the IMTA to Directorate General of Customs and Excise (DGCE) with the NIK application.
For the key changes between the previous regulation on NIK applications and the New Regulation, please see our client alert in the following link Customs office now requires work permit.
The DGCE did not implement the requirements for having an IMTA by foreign directors immediately after the issuance of the New Regulation. In July 2017, any registration/updates of NIK could still be done if:
1. there is at least one resident director; and
2. any foreigner director provides a statement letter stating that they reside abroad (to get a waiver from the IMTA requirement).
However, the DGCE is now implementing a stricter policy (ie, it requires an IMTA for every foreign director even if they do not reside in Indonesia) and it also requires all foreign directors to have a Taxpayer Identification Number (Nomor Pokok Wajib Pajak/"NPWP") when processing an NIK application.
For a company that intends to process its NIK immediately but whose foreign directors have not obtained an IMTA and NPWP yet, the DGCE has proposed a solution. The company can submit a statement letter stating that the company will process the IMTA and NPWP of its foreign directors within 90 days after the submission of the statement letter. Otherwise, the company’s NIK may be revoked by DGCE.
Note that the sanction in the form of revocation of NIK is not specifically regulated under the New Regulation. As the statement letter format is provided by DGCE, we assume that this sanction is also a new policy that his implemented by the DGCE.
Options to Consider
The company may consider the following options to fulfil the above mentioned requirements:
1. Fulfil the requirements prior to applying for the NIK
With this option, the company fulfils all the requirements to obtain the IMTA and NPWP and afterwards apply for NIK to the DGCE. A statement letter will not be required anymore.
2. Replace the foreign directors before applying for the NIK
There is another option the company could take before applying for the NIK, ie, it could replace the foreign directors that do not reside in Indonesia with foreign directors who already have an IMTA and NPWP or with Indonesian directors. Then, the company could directly process the NIK application without conducting the IMTA and NPWP process. However, to process to change the Board of Directors will take 1 - 2 months, depending on how long it takes to prepare and execute the required documents and to do the legalization process (if the documents are signed outside Indonesia).
3. Fulfil the requirements after applying for the NIK
In this option, the company applies for the NIK by submitting the statement letter (as mentioned above) to the DGCE. The company will be required to provide the IMTA and NPWP within 90 days after the submission of the statement letter to the DGCE (as mandated by DGCE in the statement letter). This can be done by the company to quicken the process to obtain NIK (ie, submit the statement letter first and then the companies fulfil the obligations to have IMTA and NPWP for their foreign directors). Once the NIK has been granted, the companies may maximize their import activities for the rest of the 90-day period. This only could be done if there are no import restrictions/requirements that could extend the import process.
4. Applying for the NIK and then replacing the foreign directors
During the 90 days after the submission of the statement letter, the company could also replace its foreign director with a foreign director who already has an IMTA and NPWP or an Indonesian director. This would allow the company to avoid the process of obtaining an IMTA and NPWP. However, the change of the directors must be completed within 90 days after the submission of the statement letter in order to satisfy the
DGCE and to minimize the risk of NIK revocation. Similar with the above, this option may also be done by companies that intend to obtain their NIK immediately. Once the NIK has been granted, the companies may maximize their import activities for the rest of the 90-day period. Additionally, the company should update the NIK due to a change of the foreign directors of the company and during the updating process, the company should not conduct any importation (to avoid a delay in customs clearance process).
As these are new requirements that have just been recently implemented by DGCE, we still do not know whether this will be implemented consistently in the future and whether the failure to comply with the IMTA requirement will cause a revocation of the NIK by DGCE. We will continue monitoring the implementation of the New Regulation. However in the meantime, importers and exporters that are applying for a NIK or renewing or amending an existing NIK need to consider the nationality and residency of the members of their board of directors and take note of these new requirements.