REPUBLIC OF THE PHILIPPINES

Court ofT ax Appeals

QUEZON CITY
ENBANC
PEOPLE OF THE PHILIPPINES,
Respondent,
-versus-
GLORIA V. KINTANAR,
Petitioner.
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-034)
Present:
ACOSTA, Presiding Justice,
CASTANEDA, JR.,
BAUTISTA,
UY,
CASANOVA,
PALANCA-ENRIQUEZ,
PABON-VICTORINO,
MINDARO-GRULLA, and
COTANGCO-MANALASTAS, JJ.
Promulgated:
X --------------------------- ------------------------------------------------------------- X
DECISION
PALANCA-ENRIQUEZ, J.:
THE CASE
This is a Petition for Review filed by petitioner Gloria V. Kintanar
from the Decision dated August 26, 2009 rendered by the Former Second
w
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
2
Division of this Court in C.T.A. Crim. Case Nos. 0-033 and 0-034, both for
Violation of Section 255 of RA 8424, otherwise known as the Tax Reform
Act of 1997, the dispositive portion of which reads, as follows:
"WHEREFORE, judgment is hereby rendered:
1) In Criminal Case No. 0-033, finding accused Gloria V.
Kintanar, GUlL TY beyond reasonable doubt of violation
of Section 255 of the National Internal Revenue Code of
1997, as amended, and is hereby SENTENCED to suffer
an indeterminate penalty of one (1) year, as minimum, to
two (2) years, as maximum, and is ORDERED to pay a
fine in the amount of P10,000.00, with subsidiary
imprisonment in case accused has no property with
which to meet the said fine, or unable to pay such fine,
pursuant to Section 280 of the NIRC of 1997, as
amended.
As regards the civil liability, accused is
ORDERED to PAY deficiency income tax for taxable
year 2000, the amount of P3,156,470.22, inclusive of
penalties, surcharges and interests, plus 20% interest per
a n n ~ 1 m counted from April 12, 2005 until full payment
thereof, pursuant to Section 249 (C ) (3) of the NIRC of
1997, as amended; and
2) In Criminal Case No. 0-034, finding accused Gloria V.
Kintanar, GUlL TY beyond reasonable doubt of violation
of Section 255 of the National Internal Revenue Code of
1997, as amended, and is hereby SENTENCED to suffer
an indeterminate penalty of one (1) year, as minimum, to
two (2) years, as maximum, and is ORDERED to pay a
fine in the amount of P10,000.00, with subsidiary
(j)v
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
imprisonment in case accused has no property with
which to meet the said fine, or unable to pay such fine,
pursuant to Section 280 of the NIRC of 1997, as
amended.
As regards the civil liability, accused is
ORDERED TO PAY deficiency income tax for taxable
year 2001, the amount of P3,147,518.77, inclusive of
penalties, surcharges and interests, plus 20% delinquency
interest per annum counted from April 12, 2005 until full
payment thereof, pursuant to Section 249 (C ) (3) of the
NIRC of 1997, as amended.
No costs.
SO ORDERED."
THE FACTS
The facts of the case, as culled from the records, are as follows:
3
In two (2) separate Informations, both dated February 7, 2006, Gloria
V. Kintanar (hereafter "petitioner") was charged with Violation of Section
255 ofRA No. 8424, the accusatory portions of which read, as follows:
CRIMINAL CASE NO. 0 -033
"That on or about the 16
1
h day of April, 2001, in
Paranaque City, Philippines, and within the jurisdiction of this
Honorable Com1, the above named-accused, a Filipino citizen
residing in the Philippines, who is engaged in business and
earning income as distributor of Forever Living Products
Philippines, Inc., with obligation under the law to file her
Income Tax Return (ITR) for the taxable year 2000 on or before
~
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
the 15th day of April 2001, did, then and there, willfully,
unlawfully and feloniously fail to file her ITR with the Bureau
of Internal Revenue for the year 2000, to the damage and
prejudice of the Government in the estimated amount of
Pl ,329,319.95 exclusive ofpenalties, surcharges and interest.
CONTRARY TO LAW."
CRIMINAL CASE NO. 0 -034
"That on or about the 16th day of April, 2002, in
Paraiiaque City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, a Filipino citizen
residing in the Philippines, who is engaged in business and
earning income as distributor of Forever Living Products
Philippines, Inc., with obligation under the law to file her
Income Tax Return {ITR) for the taxable year 2001 on or before
the 15th day of April 2002, did, then and there, willfully,
unlawfully and feloniously fail to file her ITR with the Bureau
of Internal Revenue for the year 2001, to the damage and
prejudice of the Government in the estimated amount of
Pl ,517,242.12 exclusive of penalties, surcharges and interest.
CONTRARY TO LAW."
4
When arraigned, petitioner pleaded "not guilty" to the crimes charged.
Trial ensued.
THE PROSECUTION'S EVIDENCE
From the evidence adduced by the prosecution, particularly the
testimony of seven witnesses, namely: Simplicio Cabantac, Romeo Naranjo,
w
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
5
Atty. Christina Banoga, Julio Alcasabas, Michael Cajandab, Carmencita
Flores and Assistant Commissioner Alberto A. Pio de Roda, and
documentary evidence presented, the following facts have been established:
Based on a confidential information received by the National
Investigation Division of the BIR on the alleged tax evasion scheme of
spouses Benjamin G. Kintanar Jr. and Gloria V. Kintanar for non-filing of
income tax returns, Armando R. Rosimo ("Chief Rosimo"), Chief of the Tax
Fraud Division, issued an Access Letter dated July 18, 2002, addressed to
the Revenue District Officer of RDO 52, Paraiiaque City. In said letter, the
Revenue District Officer was requested to furnish revenue
officers/investigating team of Simplicia V. Cabantac, Evangeline Catotal,
Aurelio Agustin Zamora and Section Chief Sixto C. Dy Jr. with photocopies
of spouses Kintanar's 1) income tax return (ITR), with Financial Statements;
2) Value Added Tax (VAT) Returns (monthly & qumierly); 3) Percentage
Tax Returns (monthly & quarterly); and 4) BIR Registration Ce1iificate.
Chief Rosimo issued another Access Letter dated July 19, 2002,
addressed to the Managing Director of Forever Living Products Philippines,
Inc. ("FLPPI") to furnish the named revenue officers with certification of the
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C.T.A. EB CRIM. NO. 006
(C.T.A. CRlM. CASE NOS. 0-033 & 0-34)
DECISION
6
total income payments/commissions and bonuses earned by spouses
Kintanar, together with the amount of taxes withheld for calendar years 1996
to 2001, as distributors or independent contractors of FLPPI.
Granting the request of Chief Rosimo, Revenue District Officer
Carmelita R. Bacod of RDO No. 52 issued a Certification, dated September
17, 2002, stating therein that spouses Kintanar have no record or file for the
years 1999 to 2001. On the other hand, Michael T. Cajandab, Comptroller of
FLPPI, sent a letter-reply dated January 30, 2003 to Chief Rosimo,
indicating therein the total income of Gloria V. Kintanar for calendar years
1999 to 2001.
On December 12, 2002, Chief Rosimo issued a Memorandum of
Assignment to Revenue Officer Evangeline S. Catotal, thru the group
supervisor Sixto C. Dy Jr., to conduct a thorough preliminary investigation
and to ascertain the veracity of the confidential information filed against the
spouses Kintanar on their alleged tax evasion scheme.
After the initial investigation, the investigating team found that
spouses Kintanar were able to generate a large amount of income, as
distributors or independent contractors ofFLPPI.
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS .. 0-033 & 0-34)
DECISION
7
As a result of said investigation, a Letter of Authority No. 00029663,
dated March 28, 2003, together with the list of documents required to be
submitted, were issued by the BIR, authorizing the investigating team to
examine the books of accounts and other accounting records for all internal
revenue taxes for taxable years 1999 to 2002 of spouses Kintanar. Said LOA
was received by petitioner's husband on April 3, 2003. However, spouses
Kintanar failed to submit the required documents; thus, a Second Request
for Presentation of Records, dated April 21, 2003, was issued by Sixto C.
Dy, Jr., addressed to spouses Kintanar, which letter was received by a
cetiain S/G George Llorente on April 23, 2003.
Thereafter, a Final Notice, dated May 5, 2003, was issued by Chief
Rosimo demanding from spouses Kintanar to present the needed documents
for examination, and failure to comply therewith will cause the issuance of a
subpoena duces tecum . Said notice was received by S/G George Llorente.
Despite several notices, spouses Kintanar failed to submit the required
documents; thus, on June 11, 2003 a subpoena duces tecum was issued by
Internal Revenue Officer Milagros V. Regalado, ordering spouses Kintanar
to appear before the Chief Prosecution Division on June 25, 2002 at 10:00
(}
C.T.A. EB CRLM. NO. 006
(C.T.A. CRTM. CASE NOS. 0-033 & 0-34)
DECISION
8
a.m. and to bring their books of accounts and other accounting records for
taxable years 1999 to 2002.
Again, spouses Kintanar failed to comply with said order. Chief
Rosimo sent another letter dated September 3, 2003 and informed spouses
Kintanar that the result of the investigation conducted by the Tax Fraud
Division on both internal revenue tax liabilities for taxable years 1999 to
2002 had already been submitted to the Tax Fraud Division and requested
them to appear; failing which shall be deemed a waiver of their right to
conference.
On December 9, 2003, a Preliminary Assessment Notice, together
with the details of discrepancies, for taxable years 1999 to 2002, were issued
by the BIR and sent to spouses Kintanar, giving them 15 days to explain the
discrepancies.
Again, spouses Kintanar failed to comply. Consequently, a
Memorandum dated February 26, 2004 was submitted by the investigating
team, addressed to the Deputy Commissioner stating that spouses Kintanar
failed to file their protest, within 15 days and recommended the issuance of a
Formal Demand Letter and Assessment against the spouses. ~
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
9
A Fonnal Letter of Demand, dated February 26, 2004, together with
Assessment Notices Nos. ES-IT-1999-0083, ES-VAT-1999-0084, ES-IT-
2000-0085, ES-VAT-2000-86, ES-IT-2001-0087, ES-VAT-2001-0088, ES-
IT-2002-0089, ES-VAT-2002-0090, were issued against the spouses
requesting them to pay their deficiency income and VAT liabilities.
On August 31, 2004, a letter of protest, together with photocopies of
their joint income tax return for 2000 to 2002, were sent to Atty. Arnel
Guballa, Chief of the National Investigation Division by petitioner's
husband, who undertook to submit additional documents and agreements,
within 60 days thereof.
In response thereto, a letter dated September 30, 2004, of Chi ef
Guballa was sent to spouses Kintanar, informing them that no documents
have yet been received by the NID and spouses Kintanar have 60 days from
the time the protest was filed, or until November 3, 2004, within which to
submit supporting documents; otherwise, the assessment shall become final ,
executory and demandable.
Again, spouses Kintanar failed to comply with said demand. As a
result, a Final Decision on Disputed Assessment, dated December 13, 2004,
(UJ
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
10
was issued by the BIR, indicating therein that spouses' protest against their
alleged deficiency income tax and VAT was denied for failure to submit the
r ~ q u i r e d documents, within the 60 day reglementary period; thus, the
assessment had become final, executory and demandable.
The prosecution also presented the heads of three BIR RDOs, namely:
Christina C. Barroga of RDO No. 52, Paranaque, and Romeo E. Naranjo of
RDO No. 40 of Cubao, who both testified that no record of any ITRs was
filed by petitioner, nor her husband for taxable years 2000 and 2001.
Revenue District Officer Julio G. Alcasabas of RDO No. 54 Trece Martires
City, Cavite, was also presented, and testified that petitioner has no record
of any ITRs filed, except that she is registered as a "one-time transaction
taxpayer" on June 28, 2000, representing a one-time transaction for capital
gains tax and documentary stamp tax. Also, Assistant Commissioner
Alberto A. Pio de Roda of the Information Systems Operation Services of
the BIR issued a Certification and testified that BIR has no record of
petitioner having filed her ITRs for the years 1999 to 2001.
Based on said investigation, and the documents obtained, the
prosecution found that petitioner failed to file her ITRs for the years 1999 to
w
C.T.A. EB CRlM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
11
2001 and found her liable for deficiency income taxes, arising from income
earned from FLPPI.
THE DEFENSE'S EVIDENCE
On the other haud, the defense presented petitioner herself and her
husband, Benjamin G. Kintanar, and documentary evidence, such as
Certificate of Creditable Tax Withheld for the years 2000 and 2002 (Exhibits
" 1" to "8") , Joint Annual Income Tax Returns (Exhibits "9" & "10 ''), BPI
checks nos. 0013649 dated March 15, 2000 (Exhibit "I 1'') and 0101844 dated
March 15, 2002 (Exhibit "12''), and 2 identical Certifications issued by a
certain Revenue District Officer Emesto T. Kho of RDO No. 28,
Novaliches (Exhibits "13" & "14 ''), which tend to establish the following:
Petitioner Gloria V. Kintanar, the first witness for the defense,
substantially testified that she filed her ITRs for taxable years 2000 and 2001
on March 28, 2001 and April 5, 2002 respectively, and denies having
willfully, unlawfully and feloniously failed to file her ITRs on said years;
that she has no personal knowledge of actual filing of said returns because it
was her husband who filed their ITRs; that she receives commission from
FLPPI from 1996 up to the present, through check payments, and encashed
~
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
12
or cleared them at BPI-North Greenhills Branch, where she maintains an
account no. 257004248; and that she knows Michael Cajandab, the
Comptroller of FLPPI; at present, her address is at Unit 122 Dona Juana
Townhomes, Dona Juana Subdivision, Rosario, Pasig City; however, from
the years 2000 to 2001, she resided at No. 2 Granada St., Merville Park
Subdivision, Paranaque City.
Benjamin G. Kintanar Jr., the second witness for the defense,
substantially testified that he is the husband of petitioner; that he was born at
St. Francis II, Pasig City, and resided thereat from 1972 to 1997; thereafter,
he bought a house in Merville, Paranaque, where he resided from 1997 to
2005; at present, they reside at Pasig City in the address mentioned by the
petitioner, wherein they are registered taxpayers; that he is involved in
networking business; and is one of the top dealers of FLPPI and obtained his
income from said company from years 1999 to 2001; that he was the one
who filed their ITRs; that they filed joint ITRs from years 1997 to 2004,
through their hired accountant, Marina Mendoza; that it was Mendoza who
prepared the ITRs; that he gave all the documents necessary for filing the
ITRs, specifically W2 Forms (Creditable Tax Withheld Cetiificates) to
(J)JJ
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
13
Mendoza; that he relied on Mendoza in preparing their ITRs; that he just
browsed the ITRs; thus, he has no knowledge of the amount and address
stated therein and where their ITRs were filed.
THE FORMER SECOND DIVISION'S RULING
In its Decision, the Former Second Division gave credence to the
testimonial and documentary evidence adduced by the prosecution and
found petitioner guilty beyond reasonable doubt of Violation of Section 2 55
of the NIRC of 1997, as amended, in both C.T.A. Crim. Case Nos. 0-033
and 0-034.
Not satisfied, petitioner filed her "Motion for Reconsideration", which
the Former Second Division denied in its Resolution dated November 26,
2009.
Hence, this instant Petition for Review assigning the following:
ASSIGNMENT OF ERRORS
I
THE SECOND DIVISION OF THE HONORABLE COURT
OF TAX APPEALS ERRED IN FINDING THE ACCUSED
GUILTY BEYOND REASONABLE DOUBT OF
w
C.T.A. EB CRlM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
VIOLATION OF SECTION 255 OF THE 1997 NATIONAL
INTERNAL REVENUE CODE, AS AMENDED.
II
THE SECOND DIVISION OF THIS HONORABLE COURT
OF TAX APPEALS ERRED IN FINDING THAT THERE
WAS EVIDENT LACK OF CONCERN OF THE ACCUSED
FOR INTENTIONALLY DISREGARDING HER TAX
RESPONSIBILITIES TO THE GOVERNMENT.
14
On February 1, 2010, without necessarily giving due course to the
petition, We required respondent to file comment, not a motion to dismiss,
within ten (1 0) days from notice.
On February 15, 2010, respondent filed a "Motion for Extension of
Time to File Comment", which was granted in a Resolution dated February
17,2010.
On April 5, 2010, without respondent' s comment, the Comi En Bane
ordered both parties to submit their simultaneous memoranda, within thitiy
days from notice; afterwhich, the petition shall be deemed submitted for
decision.
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
15
On April 14, 2010, respondent filed a "Motion to Admit Attached
Comment (Re: Petition for Review En Bane)", which the Court granted and
respondent's "Comment" was admitted in a Reso ll}tion dated April 26, 2010.
On May 5, 2010, petitioner filed her "Comment/Opposition (Motion
to Admit attached Comment Re: Petition for Review En Bane)".
On May 12, 2010, respondent filed its "Memorandum of the People of
the Philippines".
On June 16, 2010, the Court En Bane noted petitioner' s
"Comment/Opposition" to respondent's "Motion to Admit Attach
Comment" and submitted the case for decision, without petitioner's
memorandum.
On July 12, 2010, petitioner filed her "Motion for Reconsideration
with Leave of Court to file Memorandum", which the Court granted.
Accordingly, the Resolution dated June 16, 2010 submitting the case for
decision was recalled and set aside in a Resolution dated July 29, 2010.
On August 4, 2010, petitioner's "Motion for Leave of Comi to Admit
Attached Memorandum" was granted, and her Memorandum was admitted.
The case was deemed submitted for decision on August 16, 2010.
(W
C.T.A. EB CRIM. NO. 006
(C.T.A. CRJM. CASE NOS. 0-033 & 0-34)
DECISION
THE COURT EN BANC'S RULING
The petition is without merit.
16
After a careful review and study of the evidence on record, We find
nothing that would compel us to reverse the decision of the Former Second
Division of this Court.
In both C.T.A. Crim. Case Nos. 0-033 and 0-034 petitioner was
charged with Violation of Section 255 of the NIRC of 1997, as amended,
which provides, as follows:
"SEC. 255. Failure to File Return, Supply Correct and
Accurate Information, Pay Tax, Withhold and Remit Tax, and
Refund Excess Taxes Withheld on Compensation.- Any person
required under this Code or by rules and regulations
promulgated thereunder to pay any tax, mal{e a return, keep
any record, or supply correct and accurate information, who
willfully fails to keep any record, or supply such correct and
accurate information, or withhold or remit taxes withheld, or
refund excess taxes withheld on compensation, at the time or
times required by law or rules and regul ations shall, in
addition to other penalties provided by law, upon conviction
thereof, be punished by a fine of not less than Ten thousand
pesos (P10,000) and suffer imprisonment of not less than one
(1) year but not more than ten (10) years.
xxx." (Emphasis supplied)
C.T.A. EB CRlM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
17
Section 255 of the NIRC of 1997, as amended, contemplates four
different situations punishable by law, each of which constitutes failure to
perf01m in a timely manner, an obligation imposed by the NIRC of 1997, as
amended, to wit:
1) To pay any tax;
2) To make a return;
3) To keep any record; and
4) To supply correct and accurate information.
In the case at bench, petitioner is being charged under said provision
for failure to make or file a return. The elements of Violation of Section 255
of the NIRC of 1997, as amended, for failure to make or file a return, are, as
follows:
1) The accused is a person required to make or file a return;
2) The accused failed to make or file the return at the time required
by law; and
3) That failure to make or file the return was willful.
As proven by the prosecution, all the aforementioned
present in this case.
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
, PERSON REQUIRED TO MAKE
OR FILE A RETURN
18
As regards the first element, the prosecution has established that
petitioner is duty bound to make or file a return.
Section 51 of the NIRC of 1997, as amended, provides:
"SEC. 51. Individual Return.
(A) Requirements.-
(l)Except as provided in paragraph (2) of this Subsection, the
following individuals are required to fi le an income tax
return:
(a) Every Filipino citizen residing in the Philippines;
XXX XXX
(4) The income tax return shall be filed in duplicate by the
following persons:
(a) A resident citizen- on his income from all sources;
XXX XXX
(D) Husband and Wife. - Married individuals, whether citizens,
resident or nonresident aliens, who do not derive income purely from
compensation, shall file a return for the taxable year to include the
income of both spouses, but where it is impracticable for the spouses
to file one return, each spouse may file a separate return of income but
the returns so filed shall be consolidated by the Bureau for purposes of
verification for the taxable year."
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
Corollary thereto, Section 7 4 of the same Code provides:
"SEC. 74. Declaration of Income Tax for Individuals.-
19
(A)In General.- Except as otherwise provided in this Section, every
individual subject to income tax under Sections 24 and 25 (A) of
this Title, who is receiving self-employment income, whether it
constitutes the sole source of his income or in combination with
salaries, wages and other fixed or determinable income, shall make
and file a declaration of his estimated income for the cunent
taxable year on or before April 15 of the same taxable year. In
general, self-employment income consists of the earnings derived
by the individual from the practice of profession or conduct of
trade or business canied on by him as a sole proprietor or by a
partnership of which he is a member. Nonresident Filipino
citizens, with respect to income from without the Philippines, and
nonresident aliens not engaged in trade or business in the
Philippines, are not required to render a declaration of estimated
income tax. The declaration shall contain such pertinent
information as the Secretary of Finance, upon recommendation of
the Commissioner, may, by rules and regulations prescribe. An
individual may make amendments of a declaration filed during the
taxable year under the rules and regulations prescribed by the
Secretary of Finance, upon recommendation of the
Commissioner."
On direct examination, petitioner testified that she and her husband
were engaged in business and earned income in the form of commissions, as
distributors or independent contractors of FLPPI. Petitioner's testimony was
amply conoborated by Michael Cajandab, Comptroller of FLPPI, who
testified that FLPPI paid petitioner her commissions, for the
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
20
years 1999, 2000 and 2001 (TSN dated January 14, 2008, pp. 37-39). Petitioner
admitted that she received the checks issued by FLPPI, as her
payment/commission, which she encashed or cleared at the BPI Nmih-
Greenhills, wherein she maintains an Account no. 257004248 (TSN dated June
4, 2008, pp. 21-23).
Considering that petitioner earned a substantial mcome, as
distributor/independent contractor of FLPPI; she is, therefore, required to
make or file her annual income tax return, pursuant to the aforequoted
prov1s1ons.
PETITIONER FAILED TO MAKE OR
FILE THE RETURN AT THE TIME
REQUIRED BYLAW
As regards the second element, the testimonial and documentary
evidence adduced by the prosecution shows that petitioner failed to make or
file her ITRs for taxable years 2000 and 2001.
Pursuant to Section 51, subsections (B) and (C) (1) , of the NIRC of
1997, as amended, a person with legal residence or principal place of
business in the Philippines, shall file his return with an authorized agent
bank, Revenue District Officer, Collection Agent or duly authorized
(VV
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
21
Treasurer of the city or municipality. The return shall be filed on or before
the 15th day of April of each year covering income for the preceding taxable
year.
Under the above-provision, petitioner was supposed to register, file
her ITR and pay the corresponding income taxes due with the authorized
agent bank, RDO, Collection Agent or duly authorized Treasurer of the city,
where she has her legal residence or principal place of business. However,
upon thorough investigation and from the evidence adduced by the
prosecution, petitioner has no record of filing of the required ITRs, within
the reglementary period, with any of the RDOs of the BIR.
The prosecution has established that petitioner was a resident of No.2
Granada St., Merville Park Subdivision, Paranaque, for the years 2000 and
2001. Therefore, petitioner should have filed her ITRs in Paranaque City.
However, there is no record of filing of the required ITRs. In fact, a
Certification dated September 17, 2002 was issued by Carmelita R. Bacod,
Revenue District Officer of RDO No. 52 of Paranaque City, stating that
petitioner has no record on file for the years 1999 to 2001. Another
Certification, dated July 20, 2007, was issued by Atty. C ~ a C. Barroga,
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
22
OIC-Assistant Revenue District Officer of RDO No. 52 of Paranaque City,
who testified that petitioner, with TIN 206-631-823, is not a registered
taxpayer of said revenue district.
Fmihennore, upon verification of Assistant Commissioner Alberto A.
Pio de Roda of the Infonnation Systems Operations Service of the BIR,
there is no record showing that petitioner has filed her ITRs for years 1999
to 2001. The only existing record of petitioner is that she was registered as a
"one-time transaction taxpayer" for capital gains and documentary stamp
tax, at RDO No. 54 of Trece Martires City, Cavite. A Certification was
issued by Julio G. Alcasabas, Revenue District Officer of RDO No. 54,
confirming that no record of petitioner's ITRs has been fi led before said
RDO.
For her defense, petitioner presented 2 ITRs for taxable years 2000
and 2001, respectively, as well as 2 undated Certifications issued by a
certain Ernesto T. Kho, allegedly the Revenue District Officer of RDO No.
28, Novaliches City.
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
23
Upon a careful examination of said documentary evidence, We cannot
gtve credence to said exhibits and sustain the following findings of the
Former Second Division:
"A careful examination of the ITRs presented by accused reveals
that the same are of doubtful authenticity, materially flawed with the
following irregularities surrounding its existence to wit:
1) The subject lTRs are incomplete in itself, as both failed to indicate the
TIN of the accused, and the Community Tax Certificate (CTC)
Number, Place and Date of issuance and the Amount paid (Boxes 6,
I 07-110, respectively);
2) The subject ITRs contain an address (Bik. 73, Lot 24 Lagro
Subdivision, Quezon City) which, as admitted by the Kintanar
spouses, had never been their legal residence;
3) The subject ITRs bear the stamping "Received" by ROO No. 40 of
Cubao, Quezon City, which is NOT the district office that has
jurisdiction over the spouses' given address (Lagro Subdivision,
Quezon City) in the subject ITRs, hence, even if authentic, were filed
at the wrong venue; and
4) The husband of the accused, who purportedly caused the preparation
of the subject ITRs, clearly admitted that he did not even read the
contents of the subject ITRs and does not know up to the present
where these were supposedly filed by Marina Mendoza.
Furthermore, the prosecution was able to prove that no ITR was
filed, either by the accused or her husband, or by anyone on their behalf,
for the taxable years 2000 and 2001 at RDO No. 40, as testified to by
Romeo E. Naranjo, the highest ranking official ofRDO No. 40, which has
jurisdiction over Cubao, Quezon City, where the supposed ITRs were
purportedly filed. This was further verified by Geraldine C. Marinas,
Chief of Document Processing Section of said d i s ~
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
As regards the two undated, identically worded Certifications from
RDO No. 28, Novaliches, Quezon City, the same are tainted with various
defects, to wit:
I) On the face of the document; it IS undated and does not bear the
official dry seal ofthe BIR;
2) Although RDO No. 28, Novaliches, Quezon City, is the revenue
district which has jurisdiction over the address (Bik. 73, Lot 24,
Novaliches, Quezon City) reflected in accused's JTRs for taxable
years 2000 and 200 l, it appears however that said lTRs were filed at
RDO No. 40 Cubao, Quezon City, as shown by the stamping "Bureau
of Internal Revenue, Received, RDO 40, Cubao, Quezon City" . Thus,
RDO No. 28 is not the proper revenue district to verify and process the
said ITRs. The Certifications did not mention what returns were
indeed verified and processed by the signatory, hence, no evidentiary
value; and
3) The defense did not present, nor was there an attempt to present
Ernesto T. Kho, the supposed signatory of the Certifications to attest to
the truthfulness, authenticity and due execution of the same.
In the light of the foregoing inconsistencies, the Ce1iifications are
accorded no probative value. Moreover, granting for the sake of argument
that the Certifications were validly issued, the same nevertheless have no
favorable effect upon herein accused Gloria Y. Kintanar because said
Certifications refer only to her husband, Benjamin G. Kintanar, Jr. , and
not to the spouses Kintanar."
24
For all the foregoing, the Court is convinced that petitioner failed to
make or fjJe a return, within the period required by law.
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DEClSION
THE FAILURE TO MAKE OR
FILE A RETURN WAS WILLFUL
25
As regards the third element of "willfulness", the prosecution has
sufficiently proven beyond reasonable doubt that petitioner deliberately
failed to make or file a return.
Willful in the tax crimes statutes means voluntary, intentional
violation of a known legal duty, and bad faith or bad purpose need not be
shown [Mertens' Law of Federal Income Taxation, Chapter 47. 05, page 28, Volume 13,
see U.S. v. Green, 757 F2d 116,85-1 USTC 9178 (CA 7 1985), in which the Court, Citing
U.S. v. Moore, 627 F2d 830 (CA 7 1980) and U.S. v. Verkuilen, 690 F2d 648, 82-2 USTC
9618 (CA 7 1982), upheld the conviction of a tax protester for willful failure to file
returns}.
An act or om1sswn 1s "willfully" done if done voluntarily and
intentionally and with specific intent to do something the law forbids , or
with specific intent to fail to do something the law requires to be done; that
is, with bad purpose to either disobey or disregard the law. A willful act may
be described as one done intentionally, knowingly and purposely, without
justifiable excuse (Black's Law Dictionary, 5
1
h ed., p. I 434).
. ~
.
.
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
26
Petitioner claims that she did not actively participate in the filing of
her joint ITRs with her husband in the years 2000 and 2001 and entrusted
the fulfillment of such duty to her husband; that her husband hired a certain
Marina Mendoza, an accountant, who was tasked by her husband to handle
the filing and payment of their tax obligations; thus, there was no voluntary,
intentional, deliberate, or malicious failure to file a return on her part.
Petitioner's contention cannot be sustained.
First, the prosecution has clearly established that under the law,
petitioner and her husband, as manied individuals, who do not derive
income purely from compensation, are obliged to file their ITRs for taxable
years 2000 and 2001 for the income they earned, as distributors/independent
contractors of FLPPI. Thus, petitioner's sole reliance on her husband to file
their ITRs is not a valid reason to justify her non-filing, considering that she
knew from the start that she and her husband are mandated by law to file
their ITRS.
Second, being an experienced businesswoman, and having been an
independent distributor/contractor of FLPPI since 1996, petitioner ought to
know and understand all the matters concerning her business. This includes
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
27
knowledge and awareness of her tax obligation in connection with her
business. Petitioner should know how much are her tax dues, the details
stated on the ITRs, where the same are filed, and other important facts
related to the filing of her ITRs; after all, these matters concern her finances.
Under Rule 131, Section (3) (d) of the Rules on Evidence, it is
presumed that a person takes ordinary care of his concern.
Hence, the natural presumption is that petitioner knows what are her
tax obligations under the law. As a businesswoman, she should have taken
ordinary care of her tax duties and obligations and she should know that
their ITRs should be filed, and she should have made sure that their ITRs
were filed. She cannot just left entirely to her husband the filing of her ITRs.
In fact, one of the stipulated facts in the P r ~ - Trial Order dated October 1,
2007, which petitioner admitted is that "as married individuals who do not
derived income purely from compensation, accused and her spouse are
obligated under the Tax Code, in particular Section 51 (A) (1 ), 51 (B), 51 (C) ,
5J(D), 74(A) and 74(B), to file income tax returns for taxable years 2000. In
2001, on or before the 15th day of April 2001 & 15th day of April 2002,
respectively, to include the income of both spouses".
~
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
28
Petitioner cannot find solace on her claim that her husband hired an
accountant, who was tasked to handle the filing and payment of their tax
obligations. This allegation was a bare testimony of petitioner's husband,
and yields nothing, but mere uncorroborated statements. Mere allegations
are definitely not evidence (Coronel vs Court ofAppeals, 263 SCRA 35); thus, it
cannot be used as basis for a court's decision.
Furthermore, the Court finds no affirmative acts on the part of the
petitioner to make sure that her obligation to file her ITRs had been fully
complied with. Petitioner testified that she does not even know how much
was her tax obligation, nor did she bother to inquire or determine the facts
surrounding the filing of her ITRs. Such neglect or omission, as aptly found
by the Former Second Division, is tantamount to "deliberate ignorance" or
"conscious avoidance".
The evidence adduced by the prosecution has also established that
petitioner was duly informed that no ITRs were filed, nor recorded under her
name. There were several notices sent to her by the BIR to comply with her
tax obligations, but she opted not to comply. The prosecution has clearly
C.T.A. EB CRlM. NO. 006
(C.T.A. CRTM. CASE NOS. 0-033 & 0-34)
DECISION
29
established that the following notices of the BIR were sent and received by
petitioner:
1) LOA No. 00029663, dated March 28, 2003, which was received by
petitioner's husband on April 3, 2003;
2) Second Request for Presentation of Records, dated April21, 2003,
was received by a certain George Llorente on April23, 2003;
3) Final Notice, dated May 5, 2003, was received by George
Llorente;
4) Subpoena Duces Tecum, dated June 11, 2003;
5) Letter by ChiefRosimo, dated September 3, 2003;
6) Preliminary Assessment Notice, dated December 9, 2003, together
with the Details of Discrepancies, for taxable years 1999 to 2002;
7) Memorandum, dated February 26, 2004;
8) Formal Letter of Demand, dated February 26, 2004, together with
Assessment Notices;
9) Letter of Chief Guballa, dated September 30, 2004; and
10)Final Decision on Disputed Assessment, dated December 13,
2004.
C.T.A. EB CRIM. NO. 006
(C.T.A. CRIM. CASE NOS. 0-033 & 0-34)
DECISION
30
Despite the several notices given to petitioner starting from April 3,
2003, the evidence on record shows that only a protest letter made by
petitioner's husband dated August 31, 2004 was the reply given by the
petitioner. It took petitioner more than one year to send said reply.
Evidently, such non-compliance with the BIR's notices clearly shows
petitioner's intent not to file her ITRs.
For all the foregoing, this Court is convinced that the prosecution has
established the guilt of petitioner beyond reasonable doubt.
Finding no reversible error, the Court En Bane affirms the assailed
decision and Resolution of the Former Second Division of this Court.
WHEREFORE, premises considered, the present Petition for Review
IS hereby DENIED. The assailed Decision dated August 26, 2009 and
Resolution dated November 26, 2009 of the Former Second Division are
hereby AFFIRMED.
SO ORDERED.
~ ~ - & R ~ E Z
Associate Justice
.
C.T.A. EB CRTM. NO. 006
(C.T.A. CRTM. CASE NOS. 0-033 & 0-34)
DECISION
WE CONCUR:

ERNESTO D. ACOSTA
Presiding Justice
(
. )
\\4h an 1ssentmg Cf(>imon
JUANITO C. CASTANEDA, JR.
Associate Justice
'
31

Associate J ice
(Concurs with ustice Castafieda,Jr.)
CAESAR A. CASANOVA
Associate Justice

CIELITO N. MINDARO-GRULLA
Associate Justice

AMELIA R. COTANGCO-MANALASTAS
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby
certified that the above Decision has been reached in consultation with the
members of the Court En Bane before the case was assigned to the writer of
the opinion ofthe Comt.
G{9-
ERNESTO D. ACOSTA
Presiding Justice
REPUBLIC OF THE PHILIPPINES
COURT OF TAX APPEALS
QUEZON CITY
En Bane
PEOPLE OF THE PHILI PPINES,
Respomic:rrt CI"J.\ EB Rlf\1 1'0. 0-006
(CI-A Crim Case Nos. 0-033 &
0-034)
-versus-
GLORIA V. I<INTANAR,
Petiti oner .
X- - - - - - - - - - - - - - - - - - -
Concurring and Dissenting Opinion
CASTANEDA, JR., J.:
- - X
That the guilt of an accused rn ust be proved beyond reasonable doubt
is the cardinal rul e in our adversarial system of justi ce. Before he is convi cted,
there should be moral certainty - a certainty that convinces and sati sfi es the.
reason and conscience of those vvl1o are to act upon it.
1
With due respect to my esteemed coll eagues, I reiterate my dissent as
to the findi ng tllat petiti oner Gloria V. f<intanar (petitioner, fm brevity) rs
guilty beyond reasonable doubt for willful failure to fil e her income tax returns
(ITRs) for u-re year 2000 dild 20Ul Uf'IC!e r Section 255 of tile National Internal 't&
People vs. Abu}an G.R. r ~ o . H0870Jebruary 11, 200-4,422 SCRA -449, '1 57 citing
People vs. Canedo, G.R. No. 128382, 5 July 2000, 335 SG<A 81, 99 citing U.S. v.
Reyes, 3 Ph il. 3, 6 (1903).
Concurrin0 d i\ cl D1sseming Opmion
CIA EB Cnm. No 006 (CTA C1 1rn . Case Nus c:, 0 034)
f.'agc 2 ol l o
Revenue Code ("NI RC" ) and at tile sarne time concur t llat pet iti oner is civill y
liable for the reason solely that the assessments are already f inal and
executory.
Based on the al legati ons in the informati on whi ch are quoted
hereunder, petitioner is chargee! with willful fa1lure to fi le the i1 1eorne tax
returns for t axable years 2000 and 200 1.
Til e informati on in CTA Cmn . CJse No. 0-033 reacls:
"That on or about L11e 16u
1
day or Apri l, 2001, in Paranaque
City, Phi lippines, and within the juri sdiccion of n,is Honorable Court,
t he above- named accused, 21 Filipino citizen residing in the Philippines,
who is engaged in business ancl earning income as distributor of
Forever Living Products Philippines, lnc., with obli gati on under the law
to file her Income Tax Return ( ITR) for the taxable year 2000 on or
before the 15l
11
day of April 200 1, did, then and there, willfully,
unl awfully and feloniously __lill[ ITR witil tile Bureau of
Internal Revenue for the_ys,oc1r 2QD.Q, to Ll1c dcmlage and of
the Governmem in chc amuunt uf Pl , 329,319.95
exclusive of penalties, surcl1arges and irllf:l est." (Underline Ours).
On the ot her hancl, tt1 e informati on in CIA Crirn . Case No. 0-034 reads:
"That on or aboul Lile 16u
1
day of A1-xil, 2002, in Paranaque
City, Phi li ppines, and wi t hin the jurisdiction of this Honorable Court ,
above- named accused, a Filipino citi zen residing in the Philippines,
who is engaged in business ancJ earning income as distributor of
Forever Li ving Products Philippines, Inc., with obligation under the law
to file her lncome Tax Retum (lTR) for the taxabl e year 2001 on or
before the 15u' day of Apri l 2002, did, Lhen and tlw re, willfullyL
unlawfull y and Fail to fil e htr ITR wi th the Bureau qf
lnternal Revenue for the_ &_2': L. w the cJ2mcJgc ar1d pr of
lhe Government in Llw esri r11at ed amoum of Pl,5i 7,2 2 . 12
exclusive of penalties, surcharges and interest." (Underline Ows). c;t-.
CollCLHTillcJ a11u D1ssenti1 19 Upi>llo, ,
CfA EB Crilll . 006 (CTA Cr1 111 . Cas, I'll, _, ,, . id v l}j"lJ
Page 3 of 16
l n these consolidated u irnir ra l cases, the Frnal [Jecision on Disputed
Assessment
2
dated December U, L004, vv Js received on Ajx il 12, 2005.
Petitioner did not appeal such adverse decision t o til e Court of Tax Appeals
(CTA) within thirty (30) days from receipt of the decision denying the protest
as stated in the fifth paragraph, Section 228
3
of the 1997 f\JIRC, pertinent part
of whi cl1 provides :
If the protest is denied in whole or in part, or is nol acted
upon within one hundred eighty ( 180) days from submi ssion of
documents, the taxpayer actverscly Cifl'ect ed by the decision or
inacti on may appeal to tlk Court of Tax Appears
days rrom receipl of the scdcl clecision, or fmrn Lhe lapse ol the one
hundred eighty ( 180)-day period; otherwise, the decision shall
become final, executory and demandable. (Underline Ours).
Thus, the assessments in these cases have become final and execut ory.
Accordingl y, petiti oner is li able to pay t il e income tax deficiencies fo:- taxable
years 2000 and 2001, in the amount of P3,156,470.22 and P3, H 7,5 18.77,
respectively, plus 20% deli nquer rcy interest per annurn counted from April 12,
2005 until payment thereof , pursuarr t to Section 249 (C)(3) of the 1997 NIRC,
as amended.
As to the criminal aspect , r agree wit11 the majority decision t hat the
elements for the offense of will ful farlure to make or f il e a return are the
following:
(1) That the accused vv c1S a person required to make or fil e a return;
(2) That accused fail ecl tu make or fi le tile ret urn at the time required
by law; and
(3) That fai lure to make u1 lii e (/rc relur n was
Exl1i bi t s Q- Q5, Divrsion Dockt L (C.T .. Crim. No. 0-03.3), pp. 732 -73b
Protesli11g of f'.ssessment.
Concurriny a11o Dissc: mir llJ C; pirlrorl
CTA EB Crim. No. 006 (CI A Crr rlr C rsc I\.;: .. ,;,))_,' u JJrJ
Page 4 of l o
The first two (2) elernents were duly establ ished by t1'1e prosecution
that petitioner was liable to make the returns in taxable years 2000 and 200 1
but fa iled to file these returns at U1e [ime required by law.
However, as to the element of " wi ll fulness, " no proof was presented to
show beyond reasonable doubt tllJ( petiti oner deliberately failed to file the
income tax returns. Thus, I di ssent fmm the majority opinion that petiti oner
Gloria V. l<intanar is guilty of wr lll ul rail urc to fil e 11er income t ax returns for
taxable years 2000 and 2001.
Wi llfulness is an
essent ial elemer t
Wi llful in the tax crimes statutes means a voluntary, intentional
violati on of a known legal duty ancl bad faith or bad purpose need not be
shown. '
1
In this connect ion, the fact that the 1997 N I RC is a specia l law does
not necessarily result in tl1e conclusion that the tax offenses/crimes
mentioned therein are already mala prohibita.
1 n his Concurri ng Opini on in the case of People vs. QUijada, ) Justice
Hermosisima, Jr. stated that : i'The ir1dex of whether or not a crime is malum
prohibitum is not its form, that is, whether or not it is found in the Revised ('c-
( Law of lncoml: 121xa li on) '11.05, CIE!pt er .P iJi:lCJe 28, Volun"2 13,
see U. S. v. Green, 757 F:Zcr l l L, 85-l lb!C (CA7 l 9El5), in whicll til t: Court,
citing U. S. v. IVJ oor e, 62/ 12d b30 l9tl0) and U. S. v. Verkuil en, 690 F2d 6'18,
82-2 usJ C , 19618 ( CA 7 1982 ), upl1e1cl the co1w icrion of a tax protester fm wil lful
failure to fil e returns
G.R. Nos. 115008- 09, July 24. 1996, 2:J9 SCRA 191, 265-279.
Concurring ancl Dissenting Oprnr or1
CTA EB Crirn. IJG. OOo (Cf A Cr 11 11. Case: fJ os ,JJJJ .:. U ,)j-1)
Page 5 of 16
Penal Code or in a special penal stJtute, IJut the legislative intent that
underli es its continuing existence as part of til e law of the land. "
6
In tl1i s case, considering that tne word "willful " is present rn Section
255 of NIRC, the question of whether or- not the law is violated should be
followed by the question whether there was deliberate intent to violate the
law. If wi llfulness is not shown, petitioner cannot be guilty of the said crime.
The husband ;;: dmittC;cl
fili ng the return an
assumed responsibility
Every criminal convict ion requires of the prosecution to prove two
things: the fact of the crime, I. c:., the presence of all the elements of the
crime for whi ch tile accused stands chargee!, and the fact t hat the accused is
the perpetrator of the crime/
l n thi s case, petitioner believed that her husband fil ed their joint
income tax rcturns.B Tl12 rcJii(l\'l irr g l:l' Sli mun'>' of ti lE' peti tioner sl1 ovvs such
bel ief:
6
XXX XXX XXX
ATIY FRANCJ A
Q Madam Wilness, irl your Judi cial Affidavil, you
stated that you filed your I nconie Tax
Returns covering the taxable years 2001
and 2002 011 March 28, 2001 and Apri l 5,
2002, is lll at
People vs. ()uijada, 1iJicl , 269
People vs. Ayala, C.R- . 1\J o . :-) e prernber "l , 200 1, 3G l SCRA LI Sl , Ll 60 citing
People t'S. 333 SCRf. 319 , 2000 ).
TSN, Ju11e 4, 2008, pp. 13- 1 G.
Concurriny anu Dissent ing Opini on
CIA EB Clim. No. 006 (CTA Cr1111 . Case Nos. 0-0J J & 0-0JLl)
Page 6 of 16
KlhJTANAR
A Actual ly, my husband fil ed Uwl.
AnY FRANCIA
Q So that meclllS, :;o, l\1adam Wicncss, so, you
confirm lhat you did not personally tile
the returns!
MS KINTANAR
A No, my husband.
A TIY. FRANCIA
Q So, suffice it tu Si:l)', you ha1. e no perso11dl
knowledge ol acwal uf Lhe sarcl
rewmsl
MS. KINTANAR
A Yes .
XXX XXX XXX
JUSTI CE CASTANEDA
All right, clari f icati on.
Did you fi le the return7
MS. KINTANAR
1'1y husband
XXX XXX XXX
The above testimony of petitioner was corroboratecl by her husband,
Benjamin Kintanar, who admitted t itc t it vvCJ s he who filed tile JOint I ncome
Tax Returns thru an accountant:
9
XXX XXX

TSN, July 2, 2008, pp. 33 3'J.
Co,l cuning ar1d Dissent mg Oprnron
CrA EB Cr im. 006 (CTA Crtr1L Cast.: 0-U..;.:; 0.llU3'1)
Paye 7 of l G
JUSTICE CASTANEDA
xxx xxx Be fur e ) ,Ju pr,!L.?l.'l1 , l )LiS t l.fiirll t, l
ash. a clanficaror-,: quesLvn.
The essence of your t estimony for t hese years
2000 and 2001 is that you filed I ncome
Tax Relum as joinrly spouses. So, it
l'vas you who iileu 011 behalf of the.:::
spouses!
MR. KII'JTANAR
A. My account anl.
JUSTI CE CASTANEDA
Your clCcuuntant lJut is rl upcm your
instruction?
KI NTANAR
A. I just give my documents to rny accountanc and
he was the Orlt' wl10 li lecl.
JUSTICE CASTANEDA
So, it was you, not yoUt wi fe, Ms. Gloria
Kintanar, on your behalf! (sic)
MR. KI NTANAR
A. Yes, your Honors.
XXX XXX >-.XX
Al l-Y. ORTIZ
XXX XXX XXX
Q. fv1r . Wimess, you statecl also in your Atfidavir
Lhat you jointly fi lecl your ITR, if I may
presumed, your wife. How long have you
been /OUr JOint ITR's"?
XXX XXX XX>-.
MR. KINTANAR
A. We fi led the joint ITR since vve got married .
Cu11cur-rrng ar1u L!issent rng upinron
CTA EB Crirn. 1\Jo. 006 (CTA Crrm. Cas\2 Nos J-JJJ 0. 0-0J-l)
Page 8 of 16
ATTY ORTl Z
Q. And wher1 did you get nlarried!
fVIR. KJNTANAR
A. 1097.
ATfY ORTIZ
Q. So, is it safe to assume thal since 1997, you
t1ave been filing vour joint ITR until Lhe
present'?
MR. KINTANAR
A. T think up to 2004 only .
AllY. ORTI Z
Q. So, fmm 2005, you I illd yu,lr l TP's sc:pJr cJt t:i '('
MR. I<INTANAR
A. Yes, your Honors.
ATIY. ORTIZ
Q. And you also stareo that >'OU fil ed you r JOim
ITR's thr'Lr an accountant. I s that
correct?
HR. KINTANAR
A. Yes, your Honors.
All'r' . ORTI Z
Q. And may we Knovv the nL.irllC of tir e
fVlR . KINTANAR
h.. Your Hor1ors, fv\rs. ir1a fv1t:rrdcza.
ATlY ORTI Z
Q. And is it safe to presume again, Hr . Witness,
that in filing your joint ITR from J 997
m 1995, she l1as beer1 assisting you in
the filing of you!' JOint TTR's;
Concun ing d l ill l)JSScl l lJI IQ UpJIIIOil
CTA EB Cwn. 006 (CT,\ CoS<c fJ.v: , ,, l ;:: ,, J u ;,)
fJage 9 or 16
I<INTANAR
A. In fact, we hired !'v1rs. IVJarina !VIelldoza in 1998.
XXX XXX
Hindi ko na matanL1aanr :Jng tagal na.
Hindi ko na , uaa/a!a, 53 tag a/ na po
ralaga.
XXX .
In tll is case, the 11usoand aCimicted ll1al he is tile one who assumecl t il e
responsibility of filing the all eged joint income tax returns. It is certainly
wit hin the realm of probabi li ty for a person to rely or1 one's spouse in filing a
j oint income tax return. Althougll L11 ere may be negligence or inadvertence on
the part of tile petitioner, will fulness in the fai lure to file the returns is absent.
Inadvertence has been saicl t,) conscicucc: justifi ca ck.m fur failure to file a
retUITl. lO
Proof beyond re sonable
doubt 1s necessary for
conviction
In all criminal prosecutions, the burden of proof is on the prosecution
to establish the gui lt of the accused beyoncl reasonable cloubt. It has the duty 9-
10
"178 C.J .S. page 580, 1985 t(iiCIOil , l<lclilOk 1 as follo ws
U. S. v. Burton, C.ATt:x . l ':lo-1, 131 1' .2cl U.S. v. C.A. LJI.1980, 633 F.2d
1356 - U.S. v. Wi lsoll , C./I. flil. 19/7, 5'-iCJ F-.2Li 2S9- U.S. v. IVIcCoi kle, C.A.III.1975,
511 F.2d Ll82, cerlimari deniecl 9G S.CL. LJ3, 423 U.S. 826, 46 L.Ed .2d 43 - U.S. v.
RosenfieiCJ , C.A.Pu.l972, 469 F. 2d 598, ce1ti orari denied 93 S.Ct . 1899, 411 U.S. 932,
36 L.Ecl. 2d 391.
Negligence
Willfulness requi1es then railu1 e IJC committecl pu1posely wilh awa1eness of
action, not just neglige11tly or i1Jadverte11lly.
U.S. v. Merritt, C.A.Tex. 1981, 63'3 F.2d 254.
Co!lcurriny c1 1 Kl Dissent ir1g uprr1rurr
CTA EB Cr 11n. ll o 006 (Cr A Crrm. Case rrus. u-ujJ "' t)-034)
Page 10 of 16
to prove each and every element or t11e u irne charged in til e information to
warrant a finding of guilt for the said crime or for any other crime necessari ly
included therein.
11
Only subst antial evidence, or tt1ac releva nt eviclence that a reasona ble
mind might accept as adequate Lo supporT tl-re concl usion, is needed to find
the taxpayer civi ll y liable for dc:Ji ciency taxes, inclusive of regular civi l
penalti es, before t his Court.

Pcrtinenc porti on of the Commissioner of

internal Revenue vs. Manila Nacl7inely & Supply Company
3
reads, as foll ows:
It is well settled that in passing upon petiti ons for review
of the decisions of the Court of Tax Appeals, thi s Court is generall y
confined to questions o( lavv . Til e rindings of facL of said Court are not
to be disturbed unless cl ear ly shown to be unsupported by substantial
evidence (Rules of Court, Rul e 44, Section 2. Republi c Act 1125,
Sections 18-19.) Substanti al evidence has been const rued to mean not
necessarily preponder-ant proof as is required irr ordinary civil action,
but such kind of "relevant evidence as a reasonabl e rnan might accept
as adequate in support of a GHKiusion. " (De Lamera vs . Court of
Agrariarl Relations, et al ., 17 SCRA

On the other 11and, to make the taxpayer civill y li able for fraud
penalti es, clear and convincing proof is necessary The rul e in fraud cases is
that proof "must be clear ancl convincing",
1
r; tllat is, it must be stronger than
the "mere preponderance of evidence" wlli ch would IJe sufficient to sustain a F
11
12
\J
11
15
[Jatula!IOII liS. Pe:Jplc, c;y, )')(j l JSth/ 2ll06' LJlJ2 3) , 51 c: icing
People vs. Caingat, "126 P! -,il . 782, 7:J:l; 387, 396 (2002) .
Commisstoner of internal Revenue vs. Tours Specialists, inc., G.R. No. 66416, 21
fv1arcll 1990, 183 SCRA 40 2, 107; r'nson vs. Court of Appeals, 327 Phil. 191, 207
( 1996). See also Commissioner of Internal Revenue vs. Baier-Nickel, GR 153793,
August 29, 2006, 500 tl7, 101 citing Ttansglobe !mernattonal, inc. v. Court of
r1ppea!s, 36 1 Plr i l. /27, 738; 302 SCRt1 S/, t)8 ( 1999).
L-256jJ, 1- ellrllary 28, 193'J, 13') 8.
Comrmsstoner of internal / h":1'dll!t' ,,_,-. Nant!a Nachtllery 8 Company;tbicl., 14.
Gnffiths vs. Commisstoner of internal Revenue, 50 F [2d) 782.
ConcurrinlJ a110 Dlsselll111cJ l!plliiOI1
CT . .'\ EB C1 1111 . flo. ll06 (CTA Cllln Case f u u3 -, t, d u_i -l 1
Page 11 of l C
judgment on the issue of correctness of tne deficiency itself apart from t he
fraud penalty.
16
In the hierarctw of eviclemiary values, substamial evidence is
somewhat less than preponderance vv hile clear and convincing evidence is
more than mere 1xeponderarKe of eviclence but is less than the highest
degr-ee of proof lJeyond reasonaiJie cloulx r cquired rn crimirkll cases
17
, the
Supreme Court rul ed, as foll ows:
Clear and convirK1119 p:-uur 1S "x x x more than mere
preponderance, but nor LCJ or such certarr1cy as is requirecl
beyond reasonable doubt as in Ui111 inal cc:Jses x x x" wl1ile substantial
evidence "x x x consists of more than a mere scintilla of evidence but
may be somewhat less than a preponderance x x x x" Consequently,
in the hi erarchy of evidentiary values, We find proof beyond
reasonabl e doubt at the highest level, fol lowed by clear and
convincing evidence, preponderance of evidence, and substantial
evidence, in that order.
10
I n a criminal case, the accused is entitl ed to an acquittal, unless hi s
guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does
not mean suct1 a degree of pmof as, exclucli ng possibili ty of error, produces
absolute certainty. fvtoral cert a1 1lcy omy is requi red, or that degree of proof
which produces convinion in an unprejudiceci mind. (Sec. 2, Rule 133 of the
Revised Rules of Evidence) .
For purposes of deter mining merely til e civil liabi li ty of t he t axpayer for
f raud penalt ies ar ising from willful fai lur-e to file returns, the Supreme Court,
in the case of Comm/ss/oner or" Pr:!t 'r:!nue vs. Ali
1
(' ruled :
i6
11
IG
fvladas vs. Commissioner of !ntema! Nc: venue, "10 BTA 572.
f\1annlo 115. Roldan-C:Onfesor; GY. 102358, November 19, 1992, 215 SCRA 808.
lbtd., 819 (Citati ons omitted;
L-724'-13, Janucwy 29, l 9B8, L'J7 SCVA G-18
Concurring ci1 1Ll D1sseming l!pllliOII
CTA EB (rirn. f\) O. 006 (CT/'1 ( I IIli. Case r! u', 1)--Jj i 0. h.JJ-, ,'
Page 12 of 16
The tax l iabi lity of the pnvace respondent t hus settled, We
come now Lo tile propricly Gi lill:' SO% surcharge Jnd the interest
imposed up011 it by the Comn1issioner of Intemal Revenue.
The 50% su rcharge or fraud penalty provided i n Sectron 72 of
the Nati onal Intern al Revenue Code is i mposed on a delinquent
taxpayer who will f ull y neglects to file the requi red tax return wil hin
the period prescri bed lJ)' the law, or Wllo wi llfully files a false or
fr audulent tax return, to wil --
"Sec. 72. Surcharges fo1 failure to render ret ums and for rendering
f!JlQ - In case of will ful neglect to fil e the return or
li st requi red under thi s Titl e witl1i r1 t11e rime prescribed by law, or in case a
false or fraudulenr reLum ur lrsl is wrllfull y made, L11e Corn1nissroner of
Intemai shall acJci Ld lilt.' U \ ui ro l11t.' dcfiCi t:'i ,cy La:. , Ill case ClllY
payment 1121 s been made on ti 1<..: txus of Jucl1 return bel ore discovery of
t he fa lsily or fraucJ, J surcharge or fifly f..Jt.'t centum of the arnou11t of such
tax or deficiency tax. In case ol ar1y fallure w make and fi le a return or list
within tile time prescribed by law or by Lhe Commissione1 or other internal
revenue officer, ncl cJue Lo V\'illful r1 eglecL, ti1e Commi ssioner of 1 nlernal
Reverlll e shall add to tl1e tax t wenry-five pr.:r centum of il s amount, except
tl 1at, when a return is voluncaril y ar1d Wl tllour notice fmm the Commissioner
or other officer filed aft er sucl1 uml' , dilcl it 1s sllown t llal l11e fai iLIIe Lo file il
was due to a reasonable cause, no such acJdition shall IJe macle Lo the tax.
The amount so added t o any tax s11a ll be coll ected at tt1e same li me in t ile
same manner and as part of the tax unless the tax has been paid before t he
discovery of t he neglect, falsity, m fraud, in whi ch case the amount so added
shall be col lected in the same manner as the tax."
On t he ot her hand, til e same Sect ion provides t hat if the
f ail ure to lil e l he requireci Lc:1 x 1 elurr1 is not due to willful neglect, a
penalty of 25% is to be aclcJE'Li to ll 1l-: Ziil10lllrt ur rlw tax clue frorn th e
t axpayer.
We have gone t11rougl1 til e allegations of t he pet itioner as well
as Llle Memorandum submitted by t ile Sol icitor General on behalf of
t he Commi ssioner and Oil the basis of t he same. We are not
convinced that the pri va t e responclent can be consider-ed to have
wil lful ly neglected to fi le til e reqllirecl tax return Ulereby warranting
the imposition of the fraud lkllalty proviciecl i11 Section 72. At
the most t here is t he barren claim that such f a1lure was frauclulent 1n
charact er, wi t hout any evidence or j usti fica ti on for t he same. The
will fu l negl ect to fil e the requi1ed tax retu rn or the fraudul ent int ent t o
evade the payment of taxes, considering that the same is
accompanied by legal COibequCI1Ces, cannot be presumed. At this
point , We cal l attention t o the pror1ouncement of t his Court in AznCJr
v. Court of Tax Appeals/ t o vv ic -
"Tile lowe1 court's conclusion regardinq lhe existence of fraudul ent
int em to evade payn 1ent of uxe:, was b21seci 1 nerely 0 11 a p1 eSlll nptron and
noL on evide11ce establishing a wi llful filing cf fal se ancl rraudul enl retums so
as to war rant llle rmpositior1 or tl1c: fralrc.i penalty. Tile fraud contemplat ed
by law is aclual and r1ol corlSCiliCtive. Il must be intent ional fraud,
consisti ng of clecept 1or1 will f ully anci cl eliiJerately clone or resorted to in order
LOIK LII TIIlQ arrJ Uissent i119 Upiiii OII
CTA EB Crirn . 006 (CT.ll, Cnm CiJSl' I'HJS . I) uJJ & u-034)
Page lJ of 16
to induce anotll er t o grve up somt: legal rrgln. Negl igence, wlletll er slight m
gross, is not eq ui va lent to the fraud witll intent ro give up some legal right
f\Jegli gence, whether sli ght m gross, is r1 ot equi valent to Lhe fraud with intent
to evade the tax contempl ated tJy (he lavv. It must amount to intentional
wrongdoir1g vvitil t/ 1e sol e ollJl.'U ,J t avoi cJin CJ til e t a>; . lt r1ec:essa rily follows
t ll ac 3 mere mi stake c: arlnot he 215 rraudul em irlterl t, i:1 1ld if both
pet iti oner and respor1dem of l r1ternal Rever1ue commr tt ed
mi st akes in maki ng entri es in til e 1eturns and in t ile assessmer1t,
respeccively, under t he inve11tory rnechod of determining tax liabili ty, it would
be unfair to t reat the mi st akes of t he pet itioner as tainted wit li fraud and
those of the respondent as made in good fa ith. "
Ttl ere being no cogent basis to find willful neglect to fi le the
requi red cax return 011 tl1e part of tile pri vate respondent, t he 50%
surcllarge or fraud penalty imposed upon it is improper.
20
(Citation
Omitted)
l n the case of of l ntemal Revc:nue tiS. Japan A;r Lines,
li7c. /
1
thi s ruling was rettetat c:cl.
21
Nowhere in the rc>co rcls of t1 1e case can be found t hat JAL
deli berately fa il ed to fil e its income tax returns for the years covered
by the assessment. There was not even an at tempt by peti tioner to
prove the sa me or just ify the imposition of t he 50% surcharge. Al l
tll at pet it ioner did was t o cite u-,e provision of law upon whi cll the
surcharge was based without explaining why it was appli cable to
respondent 's case. Such ca nnot be countenanced for mere al legations
are definit ely rlot acceptable. The wi llful negl ect to file t he required
t ax re turn or tl1 e flauclul em ir1 t c:t1L to f:Vci de the payme11t of Laxes,
consider-mg that the is <Kcompar11ed tJy const.:quences,
cannot be p1esurned (CJR vs Air India, sup1a). The fraud
contemplated by law is actual c.1nd constructive. It rnusl be intentional
f raud, consisti ng of deception will fu ll y and deli berately done or
resorted t o in order to induce anot her t o give up sorne legal right
Negligence, whet her or gross, is nol equival ent Lo che fraud with
int ent to evade the ta>- contemplated by the law. lt must amount t o
intent ional wmtlgcloi ng wi t h the sol e obJ CC( of evading the tax ( Aznar
v. Courl of Tax Appeals, G.r\ . No. L-20569, Augusl 23, 197L\, 58 SCRA
519) Y
LOII I!I li:;sioner o( !ntr:rfhii 1-{r:vr-:;ue t'.). Iii l!H!;a iiJ;d ;J:y/ 6.J6
No . 607 H , October 4, l 'iCJ1 ::'02 SUU\ -150 .
Commi c;s;oner ollntemal Revenue vs . .Japan L!!?es, inc., ibid., "158.
Concurring and Oissentir1g Oprnron
Cl A EB Cr 11 11. r.J o. OOll (CT/\ Cnill. Cusc r!vS. J-UJ' U-03<1)
t>ag.; l"l of 16
Jn t il is case, rhe: 11k1 ely irlUuJuceo evicJence that
petitioner failed to fi le her lTf<s lur the years 2000 ancJ 200 l wi thout proving
deliberate intent on til e failure tu make or fil e the returns. Evidence
introduced by the proseculior l rrr tl ri s case falls Far short uf the clear and
convinci ng evidence criteria for the imposition of civil fraud penalties, much
less the hi gher degree of proof beyond reasonabl e doubt required in cri minal
cases.
No evidence was presenred
t o show t hat petiti oner
wil lfull y f iled t o fil e the
j oi 1t income tax returns
Since "wilfulness", enmesl1cd 21s it must vvitl'r " intent" and "state of
mind" is hardly susceptible of proof by direct evidence, circumstanti al
evidence is admissible on that issue. n
The test to determine wlletr1er or not the circumstanti al evidence on
record are sufficient to convict the accused is that the seri es of circumstances
duly proved must lJe consistenl '.viLli eaclr otl1er ar1d tl 121t each and every
ci1cumstance rnust be consistent with the accused's guilt and inconsistent Jt---
L3
Baiter, 1-LG., Fraud Under Federal Tax L'lt v, Second Eclition-1953, p. 394 cicing U.S. v.
Commerford, (CCA-2, 1933) 6-l F. (2cl) 28, 30, 1933 CCH , 19255; Paschen v. U.S. ,
(CCA-7, 1934) 70 F. (2d) ' 191, 1931 CCH , 1923"1; Tinkoff v. U. S., (CCA-7, 1936) 86 F.
(2d) 368, '37-1 USTC ,!9057; US v. Rosenblun\ (CA-7, 1949) 176 F. (2d) 321, 329,
"1 9-1 USTC ,19314. Gaunt v. US. (CA-l, 1950) 184 F. (2d) 284, 50-2 USTC
cert . <l en. (1951) 95 L. Eli. 280, where the court held t hat whi le evidence of mere
understarement of irrcome, stancliri CJ Cllor1e, is not pmof of wilfulness, such evidence
may, however, support a cor rv1 clior, i1i Li k' il cJ IH of oil Lil t' circurrbl:IIKC: S uncler vvhich
the urxi erstatell1L-:r1 l of ir1 G' II k l,l,JL
1
, 1i"c:
Concurring and Dissenting Opinion
CTA EB (li m. No. 006 (Cr A Cnm. Case f ~ o s O-OJ3 8" U-03"lJ
Page 15 of 16
with his innocence.
24
It must exclude the possibility that some other person
has commi tted the offc::nse:' '>
In thi s case, the ev1de1lCi2 for Llil: prost>cution fJ il ed to meet the test on
circumstant ial evidence. The c::vioence: rm tl1e prosecuti on has proven that
petitioner has the duty to fil e income tax returns and that there was fa ilure to
fil e sucll returns for taxable year s 2000 anci 2001 but t11ere is no proof that
the petiti oner was the one responsibl e for the omission either directly or
indirectly.
Consiclering thal tile tlusl)<1ncl assumed respullsiiJilily for wcparation
and for filing the ret uiTlS and even hl!'1.::cl an account.:mt
2
i' to rile t he income
tax returns, it is nmrnal for a person like petitioner in thi s case to rely on her
spouse for t he preparat ion and fil1119 of tr1 e income ta>< returns. The husband
fil ed that disputed income tax retums. Under the ci1cumstances, it cannot be
said that petitioner deliberately fail ed to fil e her 2000 and 2001 lTRs.
What has been established by unrebutted evidence, consisting of the
testimony of the Kintanar ::.;pouses, is lhat peti ti oner did not acti vely
participate in tl1c fil ing of their jl) ir lL LOUU arK! 2001 ITI<.s, l1aving rel ied on her
husband to do so. There is r1o clea1 sl1owing tl1at peti t ioner willfull y,
delibetat ely or- intentionall y tailt.:rj Lo file sucl1 returns witll reasonabl e
certainty. c;v
/1
L ~
20
Supra, f\Jote 7,p.462 ci tlllQ Pc:ople tiS. Ro!IC!em, 320 SCRA 383 ( 1999).
Supra., Note 7, p.462.
Supra., Note 9.
,.
Concurring a11Li UISSellling Opinion
CfA EB C11111. f\J u. 006 (CfA Cnm. Case [\h,s. LHB3 G. 0-03-l)
Page 16 of 16
"willfulness" requi rement. Cotlsequentl y, pet it ionet- Gloria V. Kintanar, whi le
civi ll y liable for deficiency income taxes, srJ ould be acquitted of the crime of
willful fa ilure co f il e r1er 2000 c:md 20U 1 ITRs due to reasonable doubt.
I CONCUR:
CAESAR A. CASANOVA
Associate Justice

c. CASTANEDA()R.
Associate Justi ce