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8/12/2019 LCA LINES | Volume III, Issue No. 4
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BIR ISSUANCES
APRIL-MAY 2010VOLUME III, ISSUE No. 4
L C AL C AL C A
LINESLINESLINES
Inside this issue:
BIR issuances 2
Implementingrules and reg-ulations REITAct of 2009
7
A.M. No. 09-6-8-SC: Rulesof Procedurefor Environ-mental Cases
7
Jurisprudence 8
not prevent the use of
the indirect method ofproof. The Revenue Officercan still look beyond theself-serving declarationin the taxpayers booksand records and use anyevidence available to con-travene their accuracy. Inthis connection, the provi-sions of Revenue Adminis-trative Memorandum OrderNo. 1-2000 shall be fol-lowed. The BIR shall relyon Revenue Memorandum
Circular No. 23-2000 inmaking deficiency tax as-sessments based on theBest Evidence Obtaina-ble. Furthermore, Section6 (c) of the National Inter-nal Revenue Code allowsthe BIR to prescribe theminimum taxable base forwhich internal revenue tax-es shall be determined.
The National InvestigationDivision (NID) shall verify
the existence of a taxpay-ers high value assets and/or conspicuous spendingby accessing the records ofappropriate governmentand private entities, suchas but not limited to thefollowing:
a. Land Transportation Of-fice
b. Bureau of Immigration
c. Airline and shippingcompaniesd. Maritime Industry Au-thoritye. Civil and AeronauticsBoardf. Manila Electric Companyg. Land Registration Au-thorityh. Registries of Deedsi. Resorts, membershipclubs, or similar establish-mentsj. Homeowners associa-
tionsk. Real estate developmentcompaniesl. Credit card companiesm. Statement of Assets,Liabilities, and Net worthand/or Amnesty Returnsfiled under Republic Act9480
The Assistant Commis-sioner, Enforcement Ser-vice (ACIR, ES) shallestablish linkages with
various agencies for au-thority to secure infor-mation/documents on in-dividual. He shall also ac-cess the BIRs IntegratedTax System (ITS) for infor-mation on the taxpayersuch as:
a. Taxpayers IdentificationNumber
REVENUE MEMORAN-
DUM ORDER NO. 19-2010
RMO 19-2010 prescribesthe policies and guidelinesin the conduct of investi-gations relative to theTaxpayers Lifestyle CheckSystem (TLCS) to properlydetermine tax compliance ofindividuals.
An individuals taxableincome may be estab-
lished by using directevidence, whenever availa-ble. Indirect methods canbe used, however, when oneor more of the followingconditions, among others,prevail:
a. The taxpayer maintainsno books and records.b. The taxpayers books andrecords are not available.c. The taxpayers books andrecords are inadequate.
d. The taxpayer withholdsbooks and records from in-vestigation/verification byauthorized Revenue Offic-ers.
The fact that the taxpay-ers books and recordsreflect the figures on theincome and business taxreturns, however, does
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8/12/2019 LCA LINES | Volume III, Issue No. 4
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CAR is a replacementCAR.
A replacement CAR shallbe valid for one (1)year from its date ofissuance as indicated inthe said CAR. Moreover,the applicable infor-mation pertaining to thereplacement CAR mustbe properly annotated onthe reverse side of allcopies of the correspond-ing document of transfer,and reference to the re-
placement CAR shall beindicated on the expiredCAR.
REVENUE MEMORAN-DUM ORDER NO. 26-
2010
RMO No. 26-2010 pre-scribes the policies andprocedures in the prep-aration of the List of
Assets by the RevenueOfficer (RO) for casesunder investigation/verification and its incor-poration in the DataWarehouse.
In addition to the re-porting requirements tobe prepared and/orsubmitted in the audit/verification of internalrevenue tax liabilitiesunder a Letter of Au-
thority (LA) or Tax Ver-ification Notice (TVN),the RO shall determineall the assets of ataxpayer being investi-gated, such as type ofassets, location of theassets, bank accountsmaintained, etc., andsecure pertinent infor-
mation thereof.
The List of Assets,business and personal,domestic and foreign,prescribed under BIRForm No. 0804 shall beencoded b y the RO with-in one (1) month fromthe date of service of theLA/TVN to the taxpayerfollowing the proce-dures to be prescribedby the Deputy Commis-sioner-Information Sys-tems Group (ISG). The
Deputy Commissioner-ISG shall develop thefacility to allow theviewing of informationon assets of taxpayersfor use in the collec-tion enforcement pro-ceedings, if warranted.
REVENUE MEMORAN-DUM ORDER NO. 27-
2010
RMO No. 27-2010 pre-scribes the enhancedpolicies and guidelines tore-invigorate the RunAfter Tax Evaders (RATE)Program.
The Bureau of InternalRevenue (BIR), throughthe National Investiga-tion Division (NID)/Special Investigation
Divisions (SIDs) shallcoordinate with theconcerned governmentagencies, such as, butnot limited, to the De-partment of Justice, Na-tional Bureau of Investi-gation, Criminal Investi-gation and DetectionGroup, and other enti-
Page 3VOLUME III, ISSUE No. 4
BIR ISSUANCES
date of issuance withinwhich to present the CARto the concerned Regis-ter of Deeds.
New returns and proofof tax payments shallbe needed to producea new CAR. To replacean expired CAR, the fol-lowing documents arerequired:
a. A written request forthe issuance of a newCAR, to be filed with
the concerned RevenueDistrict Office (RDO) orBIR office authorizedto issue CARs underexisting rules and regu-lations;b. The original and dupli-cate copies of the ex-pired CAR;c. The original copy ofthe document of sale,exchange or transfer(e.g. Deed of Sale,Deed of Assignment,
Deed of Donation,Deed of ExtrajudicialSettlement of Estate,etc.); andd. Photocopies of theproof of tax payment(s)previously made, or aCertification issued bythe BIRs Revenue Ac-counting Division indicat-ing therein the type oftax(es) paid, the date ofpayment and the amountpaid.
The following informationshall be indicated on theface of the replacementCAR:a. The serial number ofthe expired CAR and itsoriginal date of issuance;andb. A statement that the
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Page 4 L C A LINES
ties, in the development,investigation and prose-cution of RATE cases,
and in preventing theconcealment/disposal/transfer of assets bytaxpayer being investi-gated under the RATEProgram. The TaxpayerLifestyle Check System,among others, shall beused in the developmentof RATE cases.
The Revenue District Of-fices (RDOs), the LargeTaxpayers Service (LTS)
and its District Officesand Divisions shall actimmediately in all re-quests from the NIDor the SIDs for infor-mation needed to vali-date or develop RATEcases. Failure of anRDO/LTS District Officeor Division to providethe requested infor-mation within 15 work-ing days from receiptof a request for infor-
mation shall be consid-ered as sufficientgrounds for the impo-sition of administratived isc ip l inary ac t ionagainst the concernedoffice.
In all RATE cases, a pre-liminary investigationmust first be conductedto establish prima facieevidence of fraud ortax evasion. Such
investigation shall in-clude the verificationand determination ofthe schemes employedand the extent offraud perpetrated bythe subject taxpayer.
In the event that, fol-lowing the conduct ofthe required prelimi-
nary investigation, theNID/SIDs should deter-mine that there is pri-
ma facie evidence oftax fraud, it shall sub-mit the case, togetherwith a memorandumjustifying the issuanceof a Letter of Authority(LA) to the DeputyCommissioner Legaland Inspection Group(DCIR-LIG), throughthe Assistant Commis-sioner (Enforcement Ser-vice)/concerned Region-al Director, for evalua-
tion. If the DCIR-LIGfinds a request merito-rious, the docket of thecase, together with thememorandum-requestbearing the concur-rence of the DCIR-LIG,shall be forwarded tothe Commissioner ofInternal Revenue (CIR),for final review and ap-proval.
The DCIR-LIG shall
likewise conduct theappropriate verificationwith the Letter of Au-thority Monitoring Sys-tem (LAMS) to ascertainwhether an LA for a tax-payer for a particulartaxable year has alreadybeen issued to the con-cerned taxpayer. In theevent that it is ascer-tained that no LA hasbeen previously issuedagainst the concerned
taxpayer, a printout ofthe LAMS search resultsmust be included in thedocket of the case tosupport the issuance ofthe requested LA.
If, however, it is dis-closed that an LA waspreviously issued to theconcerned taxpayer, and
that the correspondinginvestigation has al-ready been commenced
or concluded, the DCIR-LIG shall include inthe request for issu-ance of an LA to theCIR a recommendationand justification for there-assignment to, or re-opening of the investi-gation by the NID/SID concerned.
In the event that theCIR should rule in fa-vor of the re-
assignment to/re-opening of the tax in-vestigation by the NID/SID, the DCIR-LIGshall inform the RDO/LT District Office orDivision concerned,thru the Regional Di-rector/Assistant Com-missioner LTS, ofthe decision of theCommissioner, and re-quire the transmittal ofthe docket of the case
to the NID/SID, as wellas the cancellation ofthe existing LA. Shouldthe Commissioner ap-prove a request forissuance of an LA, suchapproval will be commu-nicated to the DCIR-LIGfor the preparation andissuance of the request-ed LA by the latter. AllLAs issued for RATE cas-es shall be signed bythe DCIR-LIG.
The issuance of LAsshall cover only thetaxable year(s) for whichprima facie evidence oftax fraud, or of viola-tions of the Tax Code,was establ ishedthrough the appropriatepreliminary investiga-tion, unless the inves-
tigation of prior orsubsequent years isnecessary in order to:
Determine or tracecontinuing transactionsentered into in thecovered year and con-cluded thereafter, orthose transactions con-cluded in the coveredyear that were com-menced in prior years; orEstablish that the samescheme was utilized forprior or subsequentyears.
The formal investiga-tion of a RATE case,including the examina-tion of the taxpayersbooks of accounts, ac-counting records andthird-party recordsthrough the issuanceof LAs and/or accessletters (if warranted),shall be commenced onlyafter prima facie evi-dence of fraud or tax
evasion has been es-tablished. In caseswhere the quantum ofevidence gathered isnot sufficient to proveguilt beyond reasonabledoubt, and as such doesnot warrant the institu-tion of criminal proceed-ings against the con-cerned taxpayer, butthere exists clear andconvincing evidence thatfraud has been com-
mitted, a 50% sur-charge shall be im-posed on the taxpayer,together with the defi-ciency tax assessment.
Following the conclusionof the formal investiga-tion, the NID/SID shallrefer the RATE case, to-gether with the complete
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21-2010
RMC No. 21-2010 reiter-ates the applicable pen-alties for employerswho fail to withholdand remit taxes, do theyear-end adjustment andrefund employees of theexcess withholding taxeson compensation, in-cluding those who under-withheld taxes and un-der-remitted the totalamount of taxes with-held from employees.
The applicable penaltiesfor non-compliance withthe existing tax lawsand regulations relativeto withholding are thefollowing:a. Additions to the taxin the form of penaltiesor interest per Sec-tions 248, 249, 251 and252 under Title X, Chap-ter I of the Tax Code, asamended
b. Criminal liabilities inthe form of fine or im-prisonment or both per Sections 255, 256,272 and 275 under TitleX, Chapter II, III & IV ofthe Tax Code, as amend-ed
In certain instances, asprovided under RevenueMemorandum Order No.19-2007, a compromisepenalty in lieu of criminal
liability may be imposedand collected.
REVENUE MEMORAN-DUM CIRCULAR NO.
22-2010
RMC 22-2010 publishesthe full text of RepublicAct No. 10001 entitled
An Act Reducing theTaxes on Life Insur-ance Policies, Amend-ing for this PurposeSections 123 and 183of the National Inter-nal Revenue Code(NIRC) of 1997, asAmended.
Section 123 of theNIRC of 1997, asamended, is herebyfurther amended toread as follows:Sec. 123. Tax on Life
Insurance Premiums.There shall be collectedfrom every person,company or corpora-tion (except purelycooperative companiesor associations) doinglife insurance businessof an y sort in the Phil-ippines a tax of twopercent (2%) of thetotal premium collect-ed, whether such pre-miums are paid in
money, notes, creditsor any substitute formoney; but premiumsrefunded within six (6)months after paymenton account of rejectionof risk or returned forother reason to a per-son insured shall notbe included in the tax-able receipts; nor shallany tax be paid uponreinsurance by a com-pany that has already
paid the tax; nor uponpremiums collected orreceived by anybranch of a domesticcorporation, firm orassociation doing busi-ness outside the Philip-pines on account ofany life insurance of theinsured who is a non-resident, if any tax
report at least three(3) cases per quarterthat have been submit-ted by the concernedRegional Legal Divisionto the DCIR-LIG, forprosecution.
The DCIR-LIG shallforward all RATE casesrecommended for crim-inal prosecution, togeth-er with the corre-sponding CAs and RLsto the Office of theCommissioner, for final
review, approval andsignature. The prosecu-tion of RATE casesdeveloped and investi-gated by the NID shallbe carried out by the NO-RATE Team, while theprosecution of RATE cas-es from the SIDs shall beaccomplished by theLegal Divisions. All crim-inal prosecution pro-ceedings for RATE casesshall be executed in co-
ordination with the De-partment of Justice.
The Commissioner orany other authorizedofficer shall issue theWarrants of Distraintand/or Levy/Warrants ofGarnishment in order toprotect the interest ofthe government over thetax liabilities of a taxpay-er undergoing a RATEprosecution.
All internal revenue tax-es collected as a result ofa RATE investigationshall be credited to theRDO or LT District Of-fice/Division havingregular jurisdiction overthe concerned taxpayer.REVENUE MEMORAN-DUM CIRCULAR NO.
set of supporting docu-ments to the NationalOffice (NO) RATE Team/Legal Division, for eval-uation and appropriateaction. In the event thatthe NO-RATE Team/Legal Division shoulddetermine that a par-ticular RATE case isinsufficient in form andsubstance, it shall re-turn the case to theNID/SID, for furtherinvestigation, specifyingthe points or aspects
that must be en-hanced and/or theadditional supportingdocuments and infor-mation that is neededto strengthen the case.
However, if a RATEcase is found to besufficient in form andsubstance, the NO-RATE Team shall pre-pare the appropriateComplaint Affidavit
(CA) and Referral Let-ter (RL), and forwardthe same, togetherwith the docket ofthe case, to the DCIR-LIG, through the En-forcement Service, forreview and evaluation.The Legal Division,shall prepare the CAand RL and transmitthe docket of thecase to the DCIR-LIG,through the concerned
Regional Director, forreview and evaluation.
The NID must be ableto report at least two(2) cases per monththat have been submit-ted by the NO-RATETeam to the DCIR-LIG,for prosecution. EachSID must be able to
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on such premium isimposed by the foreigncountry where thebranch is establishednor upon premiums col-lected or received onaccount of any reinsur-ance, if the insured, incase of personal insur-ance, resides outsidethe Philippines, if any taxon such premiums is im-posed by the foreigncountry where the origi-nal insurance has beenissued or perfected;
nor upon that portionof the premiums col-lected or received b ythe insurance compa-nies on variable con-tracts, in excess of theamounts necessary toinsure the lives of thevariable contract owners.
Cooperative companiesor associations aresuch as are conductedby the members there-
of with the moneycollected from amongthemselves and solelyfor their own protectionand not for profit.
The new rate of twopercent (2%) shall ap-ply only to insurancepolicies that will beissued after the effectivi-ty of this Act: Provided,however, That insur-ance policies taken out
before the effectivity ofthis Act but the premi-ums are not yet fullypaid, the new rate oftwo percent (2%) shallbe applied to the re-maining balance and forthe remaining years.
Section 183 of theNIRC of 1997, as
amended, now stipu-lates that on all poli-cies of insurance orother instruments bywhatever name thesame may be called,whereby any insuranceshall be made or re-newed upon any life orlives, there shall be col-lected a one-time Docu-mentary Stamp Tax atthe following rates:
If the amount of insur-ance does not exceed
Php100,000.00
exempt
If the amount of insur-a n c e e x c e e d sPhp100,000.00 but doesn o t e x c e e dP h p 3 0 0 , 0 0 0 . 0 0Php10.00
If the amount of insur-a n c e e x c e e d sPhp300,000.00 but doesn o t e x c e e dP h p 5 0 0 , 0 0 0 . 0 0
Php25.00
If the amount of insur-a n c e e x c e e d sPhp500,000.00 but doesn o t e x c e e dP h p 7 5 0 , 0 0 0 . 0 0Php50.00
If the amount of insur-a n c e e x c e e d sPhp750,000.00 but doesn o t e x c e e dP h p 1 , 0 0 0 , 0 0 0 . 0 0
Php75.00
If the amount of insur-a n c e e x c e e d sP h p 1 , 0 0 0 , 0 0 0 . 0 0Php100.00
Five (5) years after theeffectivity of this Code,no tax on life insurancepremium shall be col-
lected: Provided, fur-ther, That on the saiddate, all policies ofinsurance or other in-struments by whatevername the same shall becalled whereby an y in-surance shall be madeupon any life or livesshall be exempt from theDocumentary Stamp Tax.
REVENUE MEMORAN-DUM CIRCULAR NO.
23-2010
RMC No. 23-2010 pub-lishes the full text of Re-public Act (RA) No. 9999entitled An Act Provid-ing a Mechanism forFree Legal Assistanceand For Other Purposes.
The said RA guaranteesthe provision of free le-gal assistance to thepoor and ensures that
every person who can-not afford the servicesof a counsel is provid-ed with a competentand independent coun-sel preferably of his/herown choice, if upondetermination it appearsthat the party cannotafford the services of acounsel, and that theservices of a counselare necessary to securethe ends of justice and
protect the rights of theparty.
For purposes of availingthe benefits and servicesunder the RA, a lawyeror professional partner-ship shall secure a certi-fication from the PublicAttorneys Office (PAO),the Department of Jus-
tice (DOJ) or accreditedassociation of the Su-preme Court indicatingthat the said legal ser-vices to be providedare within the servicesdefined by the SupremeCourt, and that theagencies cannot providethe legal services to beprovided by the privatecounsel.
In determining the num-ber of hours actuallyprovided by the lawyer
and/or professional firmin the provision of legalservices, the associationand/or organization dulyaccredited by the Su-preme Court shall issuethe necessary certifica-tion that said legal ser-vices were actually un-dertaken, which shall besubmitted to the BIR forpurposes of availing taxdeductions.
A lawyer or professionalpartnerships renderingactual free legal ser-vices, shall be entitledto an allowable deduc-tion from the grossincome, the amountthat could have beencollected for the actualfree legal services ren-dered or up to 10% ofthe gross income de-rived from the actualperformance of the le-
gal profession, whichev-er is lower: Provided,That the actual free le-gal service herein con-templated shall be ex-clusive of the minimum60-hour mandatory legalaid services rendered toindigent litigants as re-quired under the Ruleon Mandatory Legal Aid
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Service for PracticingLawyers, under BARMatter No. 2012, issuedby the Supreme Court.
REVENUE MEMORAN-DUM CIRCULAR NO.
24-2010
RMC No. 24-2010 defersuntil June 30, 2010 theimplementation of Reve-nue Regulations No. 7-2009 relative to the Elec-tronic DocumentaryStamp Tax (eDST) Sys-
Page 7 LCA LINES
ers who cannot as yetcomply with the require-ments of said system areadvised to adopt the
Constructive Stamping/Receipt System (CS/RS) of DocumentaryStamp Tax providedunder Revenue Memo-randum Circular No. 1-2010.
tem.
After the said date, nofurther request for de-
ferment on the manda-tory use of the saidsystem shall be enter-tained.
During the interim pe-riod of suspension,taxpayers who are al-ready technically capa-ble to use the eDSTSystem may voluntarilyavail of the same.However, those taxpay-
IMPLEMENTING RULESAND REGULATIONS OFTHE REAL ESTATE IN-
VESTMENT TRUST(REIT) ACT OF 2009
FEATURES
The Implementing Rules
and Regulations of RA9856 shall make way forthe full implementation ofthe The Real Estate In-vestment Trust (REIT) Actof 2009 which seeks topromote the developmentof capital market and de-mocratize wealth bybroadening the participa-tion of Filipinos in theownership of real estatecompanies in the Philip-pines. The REIT law also
aims to use the capitalmarket as an instrumentto help finance and devel-op infrastructure projectsand protect the investingpublic.
With a minimum capitali-zation of P300 million, aREIT company may applyfor registration of its se-
curities with the SEC andavail of incentives asprovided for by the law,such as favorable taxrates and lowered fees.On the side of the inves-tor, shareholders will beassured of steady in-come flow with the lawrequiring REIT compa-
nies to declare annuallyat least 90 percent of itsdistributable income asdividends to its share-holders.
To see the full text,please visit: h t t p : / /www.sec.gov.ph/irr-reit-a c t / R E I T % 2 0 I R R %2 0 c l e a n % 2 0 d r a f t %20as%20of%20April%2015%202010.pdf
A.M. No. 09-6-8-SCRULES OF PROCEDUREFOR ENVIRONMENTAL
CASES
FEATURES
The Supreme Court
promulgated the Rules ofProcedure for Environ-mental Cases (Rules)which will serve as a cat-alyst in support ofsweeping and far-reaching reforms in envi-ronmental litigation andprotection. The Rulesare the first of its kind in
the world.
Highlights of the Rulesinclude provisions on:(1) citizen suits, (2)consent decree, (3)environmental protec-tion order, (4) writ ofkalikasan, (5) writ ofcontinuing mandamus,(6)strategic lawsuitsagainst public partici-pation (SLAPP)and (7)the precautionary
principle.
To further encourage theprotection of the envi-ronment, the Rules ena-ble litigants enforcingenvironmental rights tofile their cases as citizensuits. As a proceduraldevice, citizen suits per-mit deferred of payment
of filing fees until afterthe judgment
Writ of Kalikasanitis available to a naturalor juridical person, enti-ty authorized by law,peoples organization,non-governmental or-ganization, or any pub-
lic interest group ac-credited by or regis-tered with any govern-ment agency, on behalfof persons whose con-stitutional right to a bal-anced and healthfulecology is violated, orthreatened with viola-tion by an unlawful actor omission of a publicofficial or employee, orprivate individual orentity, involving envi-
ronmental damage ofsuch magnitude as toprejudice the life, healthor property of inhabit-ants in two or more cit-ies or provinces. Thepetition for the issuanceof a writ of kalikasancan be filed with theSupreme Court or withany of the stations of
http://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdf8/12/2019 LCA LINES | Volume III, Issue No. 4
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the Court of Appeals.
Writ of ContinuingMandamus integratesthe ruling in ConcernedResidents of Manila Bayv. MMDA G.R. Nos.171947-48, December8, 2008) and the exist-ing rule on the issuanceof the writ of manda-mus. The writ of con-tinuing Mandamus maybe availed of to compelthe performance of anact specifically enjoinedby law. It permits the
court to retain jurisdictionafter judgment in order toensure the successful im-plementation of the reliefsmandated under thecourt's decision. For thispurpose, the court maycompel the submission ofcompliance reports fromthe respondent govern-ment agencies as well asavail of other means tomonitor compliance withits decision. Both peti-tions for the issuance ofthe writs of kalikasan andmandamus are exempt
from the payment ofdocket fees.
Another significant aspectof the Rules is the Precau-tionary Principleit findsdirect application in theevaluation of evidence incases before the courts.The precautionary princi-ple bridges the gap incases where scientific cer-tainty in factual findingscannot be achieved. Byapplying the precaution-ary principle, the courtmay construe a set of
facts as warranting eitherjudicial action or inaction,with the goal of preserv-ing and protecting theenvironment.
To see the full text,please visit: http://s c . j u d i c i a r y . g o v . p h /E n v i r o n m e n -tal_Annotation.pdf
JURISPRUDENCE
PEOPLE OF THE PHIL-IPPINES
vs.TIRSO SACE y MON-
TOYAG.R. No. 178063
April 5, 2010
FACTS: On 9 Septem-
ber 1999, at around
7:00 oclock in the
evening, in Marinduque,
Philippines, Tirso Sace y
Montoya (Sace) suc-
ceeded in having carnal
knowledge of AAA
against her will and
consent and thereafter,
Sace stabbed AAA with
a sharp bladed weapon,
inflicting upon her fatal
injuries causing her
death.
Sace admitted to the
barangay officials and
tanods that he was the
one (1) who committed
the crime. He admitted
that he raped and killed
AAA.
The Regional Trial Court
(RTC) found Sace guilty
beyond reasonable doubt
for the rape and killing of
AAA.
The Court of Appeals (CA)
upheld the decision of the
RTC.
ISSUE:Whether or not
the RTC erred in finding
Sace guilty beyond rea-
sonable doubt of the
crime of rape with homi-
cide.
RULING: Whether
or not the admission of
Sace in the commission of
the crime is considered
res gestae.
The admission of Sace in
the commission of the
crime is considered res
gestae.
The facts in this case
clearly show that Sace
admitted the commission
of the crime. According to
the testimonies of the
prosecution on record,
Sace admitted having
raped and killed AAA
these were not rebutted
by the defense. Saces
statements infront of the
prosecution witnesses are
admissible for being part
of the res gestae. Under
the Revised Rules on Evi-
dence, a declaration is
deemed part of the res
gestae and admissible in
evidence as an exception
to the hearsay rule when
the following requisites
concur: (1) the principal
act, the res gestae, is a
startling occurrence; (2)
the statements were
made before the declarant
had time to contrive or
devise; and (3) the state-
ments must concern the
occurrence in question
and its immediately at-
tending circumstances.
All these requisites are
present in this case. Sace
had just been through a
startling and gruesome
occurrence, AAAs
death. His admission was
made while he was still
under the influence of
said startling occurrence
and before he had an op-
portunity to concoct or
contrive a story. In addi-
tion, he was still under
the influence of alcohol at
that time, having engaged
in a drinking spree from
http://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdf8/12/2019 LCA LINES | Volume III, Issue No. 4
9/14
1:00 p.m. to 7:00 p.m.
that day. His confession
concerned the rape and
killing of AAA. Saces
spontaneous statements
made to private persons,
not agents of the State or
law enforcers, are not
covered by the constitu-
tional safeguards on cus-
todial investigation and,
as res gestae, admissible
in evidence against him.
SPO1 LEONITOACUZAR
vs.APRONIANO JOROLAN
and HON. EDUARDOAPRESA, PEOPLES
LAW ENFORCEMENTBOARD (PLEB) Chair-man, New Corella, Da-
vao del NorteG.R. No. 177878
April 7, 2010
FACTS:On May 2000,
Aproniano Jorolan
(Jorolan) filed an adminis-
trative case against SPO1
Leonito Acuzar (Acuzar)
before the Peoples Law
Enforcement Board
(PLEB) charging the latter
of Grave Misconduct for
allegedly having an illicit
relationship with Jorolans
minor daughter.
Jorolan also instituted a
criminal case against
Acuzar before the Munici-
pal Trial Court (MTC) for
Violation of Section 5 (b),
Article III of Republic Act
No. 7610, Child Abuse
Act.
Azucar filed a motion to
suspend the proceedings
before the PLEB pending
resolution of the criminal
case filed before the regu-
lar court. The PLEB de-
nied his motion for lack of
merit and a hearing of the
case was conducted. The
PLEB also denied Azucars
motion for reconsidera-
tion.
After due proceedings,
the PLEB issued a deci-
sion, finding Azucar guilty
of Grave Misconduct.
Upon receipt of the deci-
sion, Azucar filed a Peti-
tion for Certiorari with
Prayer for Preliminary
Mandatory Injunction and
Temporary Restraining
Orderwith the RTC.
Azucar was ordered dis-
missed from the Philippine
National Police (PNP).
The Regional Trial Court
(RTC) rendered a Decision
annulling the Decision of
the PLEB.
The Court of Appeals (CA)
rendered its Decision re-
versing and setting aside
the RTC decision.
ISSUE:Whether or not
Azucar was denied due
process by the PLEB.
RULING: A z u c a rwas not denied due pro-
cess by the PLEB.
In the instant case, Az-
ucar was notified by the
PLEB of the complaint
against him and in fact,
he had submitted his
counter-affidavit and the
affidavits of his witnesses.
He attended the hearings
together with his counsel
and even asked for sever-
al postponements. He
therefore cannot claim
that he had been denied
of due process.
Due process in an admin-
istrative context does not
require trial-type proceed-
ings similar to those in
courts of justice. Where
opportunity to be heard
either through oral ar-
guments or through
pleadings is accorded,
there is no denial of due
process. The require-
ments are satisfied
where the parties are
afforded fair and rea-
sonable opportunity to
explain their side of the
controversy. In other
words, it is not legally
objectionable for being
violative of due process
for an administrative
agency to resolve a
case based solely on
position papers, affida-
vits or documentary
evidence submitted by
the parties as affidavits
of witnesses may take
the place of direct testi-
mony. Here, we note
that Azucar had more
than enough opportuni-
ty to present his side
and adduce evidence in
support of his defense;
thus, he cannot claim
that his right to due
process has been violat-
ed.
L C A LINESPage 9
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TECHNOL EIGHT PHIL-IPPINES CORPORA-
TION
vs.NATIONAL LABOR RE-
LATIONS COMMISSIONAND DENNIS AMULAR
G.R. No. 187605
April 13, 2010FACTS:Technol Eight Phil-
ippines Corporation
(Technol) hired Dennis
Amular (Amular) in March
1998 and assigned him to
Technols Shearing Line,
together with Clarence P.
Ducay (Ducay). Rafael
Mendoza (Mendoza) was
the lines team leader.
Sometime in April 2002,
Mendoza was confronted
by Amular and Ducay in
an internet shop who en-
gaged him in a heated
argument regarding their
work in the shearing line.
The heated argument re-
sulted in a fistfight that
required the intervention
of the barangay tanods in
the area.
Technols management
sent to Amular and Ducay
a notice of preventive
suspension/notice of dis-
charge advising them that
their fistfight with Mendo-
za violated Technols Hu-
man Resource Depart-
ment (HRD) Manual.
The two were given forty
-eight (48) hours to ex-
plain why no disciplinary
action should be taken
against them for the inci-
dent. They were placed
under preventive sus-
pension for thirty (30)
days. Amular submitted
a written statement on
May 20, 2002.
Thereafter, Amular re-
ceived a notice dated
informing him that Tech-
nol management will
conduct an administra-
tive hearing. However, a
day before the hearing
Amular filed a complaint
for illegal suspension/
constructive dismissal
with a prayer for separa-
tion pay, backwages and
several money claims,
against Technol. Amular
failed to attend the ad-
ministrative hearing.
Thereafter, Technol sent
him a notice of dismissal.
The Labor Arbiter ren-
dered a decision finding
Amulars preventive sus-
pension and subsequent
dismissal were illegal.
The National Labor Rela-
tions Commission (NLRC)
affirmed the labor arbi-
ters ruling. Technol
moved for reconsidera-
tion, but the NLRC de-
nied the motion.
The Court of Appeals
(CA) found no grave
abuse of discretion on
the part of the NLRC
when it affirmed the la-
bor arbiters ruling that
Amular was illegally dis-
missed. The CA denied
the motion for reconsid-
eration Technol subse-
quently filed.
ISSUE:Whether or not
Amular was illegally dis-
missed.
RULING: Amular
was not illegally dis-
missed.
Contrary to the CAs per-
ception, the Supreme
Court (SC) finds that the
assault on Mendoza was
work-related. The un-
derlying reason why Am-
ular and Ducay confront-
ed Mendoza was to ques-
tion him about his report
to De Leon Technols
PCD assistant supervisor
regarding the duos
questionable work behav-
ior. The motivation be-
hind the confrontation,
was rooted on workplace
dynamics as Mendoza,
Amular and Ducay inter-
acted with one another in
the performance of their
duties.
Amular undoubtedly com-
mitted a misconduct or
exhibited improper behav-
ior that constituted a valid
cause for his dismissal
under the law and juris-
prudential standards. The
circumstances of his mis-
deed, rendered him unfit
to continue working for
Technol.
Amular was not discrimi-
nated against because he
was not the only one pre-
ventively suspended. As
the CA itself acknowl-
edged, both Ducay and
Amular received their no-
tice of preventive suspen-
sion/notice of charge on
different dates. These no-
tices informed them that
they were being preven-
tively suspended for 30
days.
Amulars claim of denial of
procedural due process is
VOLUME III, ISSUE No. 4 Page 10
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11/14
untenable. He chose not
to present his side at the
administrative hearing.
In fact, he avoided the
investigation into the
charges against him by
filing his illegal dismissal
complaint ahead of the
scheduled investigation.
Under these facts, he was
given the opportunity to
be heard. To belabor a
point the Court has re-
peatedly made in employ-
ee dismissal cases, the
essence of due process is
simply an opportunity to
be heard; it is the denial
of this opportunity that
constitutes violation of
due process of law.
Thus, Amular was not ille-
gally dismissed; he was
dismissed for cause.
TFS, INCORPORATED
vs.
COMMISSIONER OF IN-TERNAL REVENUE
G.R. No. 166829
April 19, 2010
FACTS: TFS, Incorporated
(TFS) received a Preliminary
Assessment Notice (PAN) for
the taxable year 1998. In-
sisting that there was no
basis for the issuance of
PAN, it requested the Bu-
reau of Internal Revenue
(BIR) to withdraw and set
aside the assessments.
A Final Assessment Notice
(FAN) was later on issued
against TFS which the com-
pany protested.
There being no action taken
by the Commission of Inter-
nal Revenue (CIR), TRF filed
a Petition for Review with
the Court of Tax Appeals
(CTA).
The CTA rendered a Deci-
sion upholding the assess-ment issued against TFS.
TFS moved for reconsidera-
tion but the same was de-
nied.
TFS filed a Petition for Re-
view with the Court of Ap-
peals (CA) but the same
was dismissed.
TFS filed a Petition for Re-
view with the CTA. The pe-
tition, however, was dis-
missed. TFS filed a Motion
for Reconsideration but the
same was denied.
ISSUE:Whether or not TFS
is subject to the 10% VAT.
RULING: TFS is not
subject to 10% VAT.
Since TFS is a non-bank
financial intermediary, it
is subject to 10% VAT for
the tax years 1996 to2002; however, with the
levy, assessment and col-
lection of VAT from non-
bank financial intermedi-
aries being specifically
deferred by law, then TFS
is not liable for VAT dur-
ing these tax years. But
with the full implementa-
tion of the VAT system on
non-bank financial inter-
mediaries starting Janu-
ary 1, 2003, TFS is liable
for 10% VAT for said tax
year. And beginning
2004 up to the present,
by virtue of R.A. No.
9238, it is no longer liable
for VAT but it is subject to
percentage tax on gross
receipts from 0% to 5%,
as the case may be.
Since the imposition of
VAT on pawnshops, which
Page 11 L C A LINES
LUIS A. ASISTIOvs.
HON. THELMA CAN-LAS TRINIDAD-PE
AGUIRRE, PresidingJudge,
Regional Trial Court,Caloocan City, Branch129; HON. ARTHUR O.
MALABAGUIO, Pre-siding Judge, Metro-politan Trial Court,
Caloocan City, Branch52; ENRICO R.
ECHIVERRI,Board of Election In-spectors of Precinct
1811A,Barangay 15,
Caloocan City; andthe CITY ELECTION
OFFICER,Caloocan City
G.R. No. 191124 April27, 2010
FACTS: Enrico R.
Echiverri (Echiverri)
filed against Luis A.
Asistio (Asistio) a Peti-
tion for Exclusion of
Voter from the Perma-
nent List of Voters of
Caloocan City (Petition
for Exclusion) before
the Metropolitan Trial
Court (MeTC) Branch 52
stating that Asistio is
not a resident of
Caloocan City. Judge
Arthur O. Malabaguio
(Judge Malabaguio) pre-
sides over MeTC Branch
52.
Echiverri, also a candi-
date for Mayor of
Caloocan City, was the
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Page 12VOLUME III, ISSUE No. 4
respondent in a Petition to
Deny Due Course and/or
Cancellation of the Certifi-
cate of Candidacy filed by
Asistio. According to
Echiverri, when he was
about to furnish Asistio a
copy of his Answer to the
latters petition, he found
out that Asistios address
is non-existent.
Judge Malabaguio ren-
dered a decision ordering
the Election Registration
Board to remove the
name of Asistio from the
list of the permanent vot-
ers of Caloocan City.
Meanwhile, Echiverri filed
with the COMELEC a Peti-tion for Disqualification,
on the grounds that Asis-
tio is not a resident of
Caloocan City and that he
had been previously con-
victed of a crime involving
moral turpitude.
Asistio filed his Notice ofAppeal with the Regional
Trial Court (RTC) and paid
the required appeal fees
through postal money
orders.
Judge Thelma Aguirre
(Judge Aguirre) issued an
Order stating that the RTC
did not acquire jurisdic-
tion over the appeal due
to the non-payment of
docket fees.
ISSUES:
1. Whether or not the RTC
acquired jurisdiction over
the Notice of Appeal filed
by Asistio;2. Whether or not Asistio
should be excluded from
the permanent list of vot-
ers of [Precinct 1811A] of
Caloocan City for failure
to comply with the resi-
dency required by law.
With regard to the first
issue, the RTC acquired
jurisdiction over the No-
tice of Appeal filed by
Asistio.
While Judge Aguirre de-
clares in her Order that
the appellate docket fees
were paid on February 11,2010, she conveniently
omits to mention that the
postal money orders ob-
tained by Asistio for the
purpose were purchased
on February 10, 2010. It
is noteworthy that, as
early as February 4,
2010, Asistio already
manifested that he could
not properly file his mem-
orandum with the MeTC
due to the non-availability
of the TSNs. Obviously,
these TSNs were needed
in order to prepare an
intelligent appeal from the
questioned MeTC Order.
Asistio was able to get
copies of the TSNs only
on February 10, 2010, the
last day to file his appeal,
and, naturally, it would
take some time for him to
review and incorporate
them in his arguments on
appeal. Understandably,
Asistio filed his notice ofappeal and appeal, and
purchased the postal
money orders in payment
of the appeal fees on the
same day. Asistio, by pur-
chasing the postal money
orders for the purpose of
paying the appellate
docket fees on February
10, 2010, although they
were tendered to the
MeTC only on February
11, 2010, had already
substantially complied
with the procedural re-
quirements in filing his
appeal.
In this case, even if we
assume for the sake of
argument, that the appel-
late docket fees were not
filed on time, this incident
alone should not thwart
the proper determination
and resolution of the in-
stant case on substantial
grounds. Blind adherenceto a technicality, with the
inevitable result of frus-
trating and nullifying the
constitutionally guaran-
teed right of suffrage,
cannot be countenanced.
With regard to the second
issue, Asistio should not
be excluded from the per-
manent list of voters of
[Precinct 1811A] of
Caloocan City.
The residency require-
ment of a voter is at least
one (1) year residence in
the Philippines and at
least six (6) months in
the place where the per-
son proposes or intends
to vote. Residence, as
used in the law prescrib-
ing the qualifications for
8/12/2019 LCA LINES | Volume III, Issue No. 4
13/14
suffrage and for elective
office, is doctrinally set-
tled to mean domicile,
importing not only an in-
tention to reside in a fixed
place but also personal
presence in that place,
coupled with conduct in-
dicative of such intention
inferable from a persons
acts, activities, and utter-
ances. Domicile denotes
a fixed permanent resi-
dence where, when ab-
sent for business or pleas-
ure, or for like reasons,
one intends to return. In
the consideration of cir-
cumstances obtaining in
each particular case,
three rules must be borne
in mind, namely: (1) thata person must have a res-
idence or domicile some-
where; (2) once estab-
lished, it remains until a
new one is acquired; and
(3) that a person can
have but one residence or
domicile at a time.
Domicile is not easily lost.
To successfully effect a
transfer thereof, one must
demonstrate: (1) an actu-
al removal or change of
domicile; (2) a bona fide
intention of abandoning
the former place of resi-
dence and establishing a
new one; and (3) acts
which correspond with
that purpose. There must
be animus manendi cou-
pled with animus non re-
vertendi. The purpose to
remain in or at the domi-
cile of choice must be for
an indefinite period of
time; the change of resi-
dence must be voluntary;
and the residence at the
place chosen for the new
domicile must be actual.
Asistio has always been a
resident of Caloocan City
since his birth or for more
than 72 years. His family
is known to be among the
prominent political fami-
lies in Caloocan City. In
fact, Asistio served in
public office as Caloocan
City Second District rep-
resentative in the House
of Representatives, hav-
ing been elected as such
in the 1992, 1995, 1998,
and 2004 elections. In
2007, he also sought
election as City Mayor. In
all of these occasions,
Asistio cast his vote in the
L C A LINESPage 13
same city. Taking these
circumstances into con-
sideration, gauged in the
light of the doctrines
above enunciated, it can-
not be denied that Asistio
has qualified, and contin-
ues to qualify, as a voter
of Caloocan City. There is
no showing that he has
established domicile else-
where, or that he had
consciously and voluntari-
ly abandoned his resi-
dence in Caloocan City.
He should, therefore, re-
main in the list of perma-
nent registered voters of
Precinct No. 1811A, Ba-
rangay15, Caloocan City.
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VOLUME III, ISSUE No. 4 Page 14
Volume III Issue 4
April-May 2010
LAGUNDI-CARONAN AND ASSOCIATES
JLsCORNER
BILLING
A doctor and a lawyer were talking at a party.
Their conversation was constantly interrupted by people describing their ail-
ments and asking the doctor for free medical advice.
After an hour of this, the exasperated doctor asked the lawyer, "What do
you do to stop people from asking you for legal advice when you're out of
the office?"
"I give it to them," replied the lawyer, "and then I send them a bill."
The doctor was shocked, but agreed to give it a try.
The next day, still feeling slightly guilty, the doctor prepared the bills.
When he went to place them in his mailbox, he found a bill from the lawyer.