L C A L C A L C A LINES LINES LINES Inside this issue: BIR issuances 2 Implementing rules and reg- ulations REIT Act of 2009 7 A.M. No. 09-6- 8-SC: Rules of Procedure for Environ- mental Cases 7 Jurisprudence 8
not prevent the use of the indirect method of proof. The Revenue Officer can still look beyond the self-serving declaration in the taxpayers books and records and use any evidence available to con- travene their accuracy. In this connection, the provi- sions of Revenue Adminis- trative Memorandum Order No. 1-2000 shall be fol- lowed. The BIR shall rely on Revenue Memorandum Circular No. 23-2000 in making deficiency tax as- sessments based on the Best Evidence Obtaina- ble. Furthermore, Section 6 (c) of the National Inter- nal Revenue Code allows the BIR to prescribe the minimum taxable base for which internal revenue tax- es shall be determined.
The National Investigation Division (NID) shall verify the existence of a taxpay- ers high value assets and/ or conspicuous spending by accessing the records of appropriate government and private entities, such as but not limited to the following:
a. Land Transportation Of- fice b. Bureau of Immigration c. Airline and shipping companies d. Maritime Industry Au- thority e. Civil and Aeronautics Board f. Manila Electric Company g. Land Registration Au- thority h. Registries of Deeds i. Resorts, membership clubs, or similar establish- ments j. Homeowners associa- tions k. Real estate development companies l. Credit card companies m. Statement of Assets, Liabilities, and Net worth and/or Amnesty Returns filed under Republic Act 9480
The Assistant Commis- sioner, Enforcement Ser- vice (ACIR, ES) shall establish linkages with various agencies for au- thority to secure infor- mation/documents on in- dividual. He shall also ac- cess the BIRs Integrated Tax System (ITS) for infor- mation on the taxpayer such as:
a. Taxpayers Identification Number REVENUE MEMORAN- DUM ORDER NO. 19- 2010
RMO 19-2010 prescribes the policies and guidelines in the conduct of investi- gations relative to the Taxpayers Lifestyle Check System (TLCS) to properly determine tax compliance of individuals.
An individuals taxable income may be estab- lished by using direct evidence, whenever availa- ble. Indirect methods can be used, however, when one or more of the following conditions, among others, prevail:
a. The taxpayer maintains no books and records. b. The taxpayers books and records are not available. c. The taxpayers books and records are inadequate. d. The taxpayer withholds books and records from in- vestigation/verification by authorized Revenue Offic- ers.
The fact that the taxpay- ers books and records reflect the figures on the income and business tax returns, however, does b. Registered address c. Registered business/es d. Returns filed; e. Amount of taxes paid
The information gathered from the said entities shall then be evaluated vis--vis the data ex- tracted from the ITS. The economic use/beneficial ownership of properties shall be considered in the evaluation process. Thus, all properties registered under the name of his/ her child or, whether emancipated or a minor, or any other relative shall be considered as those of the taxpayer when the property is not proven to have been ac- quired under any of the means enumerated un- der the New Civil Code of the Philippines and the tax thereon has been properly paid, and/or the child or relative has no independent means suffi- cient for the acquisition of the properties.
If the taxpayers net worth has increased in a given year or he has acquired substan- tial assets and incurred substantial spending dis- proportionate to his de- clared income, and was verified from the ITS that he has not filed an In- come Tax Return for that period, then such fact constitutes a prima facie evidence of fraud and/or subst ant i al under - declaration of taxes war- ranting the issuance of a Letter of Authority to investigate the taxpayer.
BIR ISSUANCES Page 2 L C A LINES The ACIR, ES shall coordi- nate with the Information Systems Group for the development of an Elec- tronic Data Warehouse wherein all information gathered in the TLCS shall be stored for reference and use. The Special In- vestigation Division of the Regional Offices and other BIR audit offices shall also be authorized to imple- ment the TLCS upon the approval of the Commis- sioner of Internal Reve- nue.
REVENUE MEMORAN- DUM ORDER NO. 20- 2010
RMO No. 20-2010 amends certain provisions of Revenue Memorandum Order (RMO) No. 15-2010 relative to the policies and guidelines on appearances o f B I R l a wy e r s / prosecutors in court hear- ings and preliminary in- vestigations.
Pertinent portions of Sec- tion II of the said RMO No.15-2010 were amend- ed to provide for the fol- lowing policies and guide- lines:
a. In the National Office, the Inspection Service (IS), thru the Internal Security Division (ISD), shall assign personnel to check attendance and time of appearance of BIR lawyers/prosecutors and their witnesses at the Court of Tax Appeals, Court of Appeals, Su- preme Court and Depart- ment of Justice when there are scheduled hearings or preliminary investigations. b. In the Regional Office, the Office of the Regional Director, thru the Special Investigation Division (SID), shall assign per- sonnel to check attend- ance and time of appear- ance of BIR lawyers/ prosecutors and their witnesses at the Metro- politan Trial Courts, Re- gional Trial Courts and City Prosecutors Office based in Metro Manila, and shall furnish the In- spection Service copy of their report. c. The Assistant Commis- sioner (ACIR) - Legal Service, and the Regional Director shall submit a report to the Assistant Commissioner, Inspection Service for the institution of the necessary admin- istrative disciplinary ac- tion against the BIR law- yers/prosecutors and witnesses who have been late or absent during the scheduled hearings or preliminary investiga- tions. d. The ACIR-Legal Ser- vice shall regularly se- cure the schedules of court hearings from the BIR lawyers/prosecutors and/or the Clerks of Court, and furnish the Assistant Commissioner, Inspection Service, copy thereof, for reference in the preparation of as- signment of personnel required to check their attendance. e. The BIR lawyers/ prosecutors and witness- es must be adequately prepared for the hear- ings. They must exten- sively review their as- signed cases and pre- pare/submit quality mo- tions and pleadings on time. They must also coordinate with each oth- er on the details for the success of the case. Cor- ollary to this, all Reve- nue Officers/Employees required to appear as witnesses in court hearings must give pri- ority attention and time for the cases.
REVENUE MEMORAN- DUM ORDER NO. 23- 2010
RMO 23-2010 pre- scribes the guidelines on the issuance, replace- ment or revalidation of Certificates Authorizing Registration (CARs).
Per Section 4 of Revenue Regulations No. 23-2010, the CAR, upon issuance, shall have to be present- ed to the Register of Deeds within a maxi- mum period of not more than two (2) years. Otherwise, the CAR shall be deemed permanently expired and therefore of no effect.
The phrase upon issu- ance refers to the original date of issu- ance as indicated in the CAR. In this re- gard, a taxpayer shall have a maximum peri- od of two (2) years from the CARs original CAR is a replacement CAR.
A replacement CAR shall be valid for one (1) year from its date of issuance as indicated in the said CAR. Moreover, the applicable infor- mation pertaining to the replacement CAR must be properly annotated on the reverse side of all copies of the correspond- ing document of transfer, and reference to the re- placement CAR shall be indicated on the expired CAR.
REVENUE MEMORAN- DUM ORDER NO. 26- 2010
RMO No. 26-2010 pre- scribes the policies and procedures in the prep- aration of the List of Assets by the Revenue Officer (RO) for cases under i nvesti gati on/ verification and its incor- poration in the Data Warehouse.
In addition to the re- porting requirements to be prepared and/or submitted in the audit/ verification of internal revenue tax liabilities under a Letter of Au- thority (LA) or Tax Ver- ification Notice (TVN), the RO shall determine all the assets of a taxpayer being investi- gated, such as type of assets, location of the assets, bank accounts maintained, etc., and secure pertinent infor- mation thereof.
The List of Assets, business and personal, domestic and foreign, prescribed under BIR Form No. 0804 shall be encoded b y the RO with- in one (1) month from the date of service of the LA/TVN to the taxpayer following the proce- dures to be prescribed by the Deputy Commis- sioner-Information Sys- tems Group (ISG). The Deputy Commissioner- ISG shall develop the facility to allow the viewing of information on assets of taxpayers for use in the collec- tion enforcement pro- ceedings, if warranted.
REVENUE MEMORAN- DUM ORDER NO. 27- 2010
RMO No. 27-2010 pre- scribes the enhanced policies and guidelines to re-invigorate the Run After Tax Evaders (RATE) Program.
The Bureau of Internal Revenue (BIR), through the National Investiga- tion Division (NID)/ Special Investigation Divisions (SIDs) shall coordinate with the concerned government agencies, such as, but not limited, to the De- partment of Justice, Na- tional Bureau of Investi- gation, Criminal Investi- gation and Detection Group, and other enti- Page 3 VOLUME III, ISSUE No. 4 BIR ISSUANCES date of issuance within which to present the CAR to the concerned Regis- ter of Deeds.
New returns and proof of tax payments shall be needed to produce a new CAR. To replace an expired CAR, the fol- lowing documents are required:
a. A written request for the issuance of a new CAR, to be filed with the concerned Revenue District Office (RDO) or BIR office authorized to issue CARs under existing rules and regu- lations; b. The original and dupli- cate copies of the ex- pired CAR; c. The original copy of the document of sale, exchange or transfer (e.g. Deed of Sale, Deed of Assignment, Deed of Donation, Deed of Extrajudicial Settlement of Estate, etc.); and d. Photocopies of the proof of tax payment(s) previously made, or a Certification issued by the BIRs Revenue Ac- counting Division indicat- ing therein the type of tax(es) paid, the date of payment and the amount paid.
The following information shall be indicated on the face of the replacement CAR: a. The serial number of the expired CAR and its original date of issuance; and b. A statement that the Page 4 L C A LINES
ties, in the development, investigation and prose- cution of RATE cases, and in preventing the conceal ment/di sposal / transfer of assets by taxpayer being investi- gated under the RATE Program. The Taxpayer Lifestyle Check System, among others, shall be used in the development of RATE cases.
The Revenue District Of- fices (RDOs), the Large Taxpayers Service (LTS) and its District Offices and Divisions shall act immediately in all re- quests from the NID or the SIDs for infor- mation needed to vali- date or develop RATE cases. Failure of an RDO/LTS District Office or Division to provide the requested infor- mation within 15 work- ing days from receipt of a request for infor- mation shall be consid- ered as sufficient grounds for the impo- sition of administrative di sci pl i nar y act i on against the concerned office.
In all RATE cases, a pre- liminary investigation must first be conducted to establish prima facie evidence of fraud or tax evasion. Such investigation shall in- clude the verification and determination of the schemes employed and the extent of fraud perpetrated by the subject taxpayer.
In the event that, fol- lowing the conduct of the required prelimi- nary investigation, the NID/SIDs should deter- mine that there is pri- ma facie evidence of tax fraud, it shall sub- mit the case, together with a memorandum justifying the issuance of a Letter of Authority (LA) to the Deputy Commissioner Legal and Inspection Group (DCIR-LIG), through the Assistant Commis- sioner (Enforcement Ser- vice)/concerned Region- al Director, for evalua- tion. If the DCIR-LIG finds a request merito- rious, the docket of the case, together with the memorandum-request bearing the concur- rence of the DCIR-LIG, shall be forwarded to the Commissioner of Internal Revenue (CIR), for final review and ap- proval.
The DCIR-LIG shall likewise conduct the appropriate verification with the Letter of Au- thority Monitoring Sys- tem (LAMS) to ascertain whether an LA for a tax- payer for a particular taxable year has already been issued to the con- cerned taxpayer. In the event that it is ascer- tained that no LA has been previously issued against the concerned taxpayer, a printout of the LAMS search results must be included in the docket of the case to support the issuance of the requested LA.
If, however, it is dis- closed that an LA was previously issued to the concerned taxpayer, and that the corresponding investigation has al- ready been commenced or concluded, the DCIR -LIG shall include in the request for issu- ance of an LA to the CIR a recommendation and justification for the re-assignment to, or re -opening of the investi- gation by the NID/ SID concerned.
In the event that the CIR should rule in fa- vor of the re- assignment to/re- opening of the tax in- vestigation by the NID/ SID, the DCIR-LIG shall inform the RDO/ LT District Office or Division concerned, thru the Regional Di- rector/Assistant Com- missioner LTS, of the decision of the Commissioner, and re- quire the transmittal of the docket of the case to the NID/SID, as well as the cancellation of the existing LA. Should the Commissioner ap- prove a request for issuance of an LA, such approval will be commu- nicated to the DCIR-LIG for the preparation and issuance of the request- ed LA by the latter. All LAs issued for RATE cas- es shall be signed by the DCIR-LIG.
The issuance of LAs shall cover only the taxable year(s) for which prima facie evidence of tax fraud, or of viola- tions of the Tax Code, was est abl i shed through the appropriate preliminary investiga- tion, unless the inves- tigation of prior or subsequent years is necessary in order to:
Determine or trace continuing transactions entered into in the covered year and con- cluded thereafter, or those transactions con- cluded in the covered year that were com- menced in prior years; or Establish that the same scheme was utilized for prior or subsequent years.
The formal investiga- tion of a RATE case, including the examina- tion of the taxpayers books of accounts, ac- counting records and third-party records through the issuance of LAs and/or access letters (if warranted), shall be commenced only after prima facie evi- dence of fraud or tax evasion has been es- tablished. In cases where the quantum of evidence gathered is not sufficient to prove guilt beyond reasonable doubt, and as such does not warrant the institu- tion of criminal proceed- ings against the con- cerned taxpayer, but there exists clear and convincing evidence that fraud has been com- mitted, a 50% sur- charge shall be im- posed on the taxpayer, together with the defi- ciency tax assessment.
Following the conclusion of the formal investiga- tion, the NID/SID shall refer the RATE case, to- gether with the complete
Page 5 L C A LINES 21-2010
RMC No. 21-2010 reiter- ates the applicable pen- alties for employers who fail to withhold and remit taxes, do the year-end adjustment and refund employees of the excess withholding taxes on compensation, in- cluding those who under -withheld taxes and un- der-remitted the total amount of taxes with- held from employees.
The applicable penalties for non-compliance with the existing tax laws and regulations relative to withholding are the following: a. Additions to the tax in the form of penalties or interest per Sec- tions 248, 249, 251 and 252 under Title X, Chap- ter I of the Tax Code, as amended b. Criminal liabilities in the form of fine or im- prisonment or both per Sections 255, 256, 272 and 275 under Title X, Chapter II, III & IV of the Tax Code, as amend- ed
In certain instances, as provided under Revenue Memorandum Order No. 19-2007, a compromise penalty in lieu of criminal liability may be imposed and collected.
REVENUE MEMORAN- DUM CIRCULAR NO. 22-2010
RMC 22-2010 publishes the full text of Republic Act No. 10001 entitled An Act Reducing the Taxes on Life Insur- ance Policies, Amend- ing for this Purpose Sections 123 and 183 of the National Inter- nal Revenue Code (NIRC) of 1997, as Amended.
Section 123 of the NIRC of 1997, as amended, is hereby further amended to read as follows: Sec. 123. Tax on Life Insurance Premiums. There shall be collected from every person, company or corpora- tion (except purely cooperative companies or associations) doing life insurance business of an y sort in the Phil- ippines a tax of two percent (2%) of the total premium collect- ed, whether such pre- miums are paid in money, notes, credits or any substitute for money; but premiums refunded within six (6) months after payment on account of rejection of risk or returned for other reason to a per- son insured shall not be included in the tax- able receipts; nor shall any tax be paid upon reinsurance by a com- pany that has already paid the tax; nor upon premiums collected or received by any branch of a domestic corporation, firm or association doing busi- ness outside the Philip- pines on account of any life insurance of the insured who is a non- resident, if any tax report at least three (3) cases per quarter that have been submit- ted by the concerned Regional Legal Division to the DCIR-LIG, for prosecution.
The DCIR-LIG shall forward all RATE cases recommended for crim- inal prosecution, togeth- er with the corre- sponding CAs and RLs to the Office of the Commissioner, for final review, approval and signature. The prosecu- tion of RATE cases developed and investi- gated by the NID shall be carried out by the NO -RATE Team, while the prosecution of RATE cas- es from the SIDs shall be accomplished by the Legal Divisions. All crim- inal prosecution pro- ceedings for RATE cases shall be executed in co- ordination with the De- partment of Justice.
The Commissioner or any other authorized officer shall issue the Warrants of Distraint and/or Levy/Warrants of Garnishment in order to protect the interest of the government over the tax liabilities of a taxpay- er undergoing a RATE prosecution.
All internal revenue tax- es collected as a result of a RATE investigation shall be credited to the RDO or LT District Of- fice/Division having regular jurisdiction over the concerned taxpayer. REVENUE MEMORAN- DUM CIRCULAR NO. set of supporting docu- ments to the National Office (NO) RATE Team/ Legal Division, for eval- uation and appropriate action. In the event that the NO-RATE Team/ Legal Division should determine that a par- ticular RATE case is insufficient in form and substance, it shall re- turn the case to the NID/SID, for further investigation, specifying the points or aspects that must be en- hanced and/or the additional supporting documents and infor- mation that is needed to strengthen the case.
However, if a RATE case is found to be sufficient in form and substance, the NO- RATE Team shall pre- pare the appropriate Complaint Affidavit (CA) and Referral Let- ter (RL), and forward the same, together with the docket of the case, to the DCIR -LIG, through the En- forcement Service, for review and evaluation. The Legal Division, shall prepare the CA and RL and transmit the docket of the case to the DCIR-LIG, through the concerned Regional Director, for review and evaluation.
The NID must be able to report at least two (2) cases per month that have been submit- ted by the NO-RATE Team to the DCIR-LIG, for prosecution. Each SID must be able to
Page 6 VOLUME III, ISSUE No. 4 on such premium is imposed by the foreign country where the branch is established nor upon premiums col- lected or received on account of any reinsur- ance, if the insured, in case of personal insur- ance, resides outside the Philippines, if any tax on such premiums is im- posed by the foreign country where the origi- nal insurance has been issued or perfected; nor upon that portion of the premiums col- lected or received b y the insurance compa- nies on variable con- tracts, in excess of the amounts necessary to insure the lives of the variable contract owners.
Cooperative companies or associations are such as are conducted by the members there- of with the money collected from among themselves and solely for their own protection and not for profit.
The new rate of two percent (2%) shall ap- ply only to insurance policies that will be issued after the effectivi- ty of this Act: Provided, however, That insur- ance policies taken out before the effectivity of this Act but the premi- ums are not yet fully paid, the new rate of two percent (2%) shall be applied to the re- maining balance and for the remaining years.
Section 183 of the NIRC of 1997, as amended, now stipu- lates that on all poli- cies of insurance or other instruments by whatever name the same may be called, whereby any insurance shall be made or re- newed upon any life or lives, there shall be col- lected a one-time Docu- mentary Stamp Tax at the 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 s Php100,000.00 but does n o t e x c e e d P h p 3 0 0 , 0 0 0 . 0 0 Php10.00
If the amount of insur- a n c e e x c e e d s Php300,000.00 but does n o t e x c e e d P 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 s Php500,000.00 but does n o t e x c e e d P h p 7 5 0 , 0 0 0 . 0 0 Php50.00
If the amount of insur- a n c e e x c e e d s Php750,000.00 but does n o t e x c e e d P 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 s P h p 1 , 0 0 0 , 0 0 0 . 0 0 Php100.00
Five (5) years after the effectivity of this Code, no tax on life insurance premium shall be col- lected: Provided, fur- ther, That on the said date, all policies of insurance or other in- struments by whatever name the same shall be called whereby an y in- surance shall be made upon any life or lives shall be exempt from the Documentary Stamp Tax.
REVENUE MEMORAN- DUM CIRCULAR NO. 23-2010
RMC No. 23-2010 pub- lishes the full text of Re- public Act (RA) No. 9999 entitled An Act Provid- ing a Mechanism for Free Legal Assistance and For Other Purposes.
The said RA guarantees the provision of free le- gal assistance to the poor and ensures that every person who can- not afford the services of a counsel is provid- ed with a competent and independent coun- sel preferably of his/her own choice, if upon determination it appears that the party cannot afford the services of a counsel, and that the services of a counsel are necessary to secure the ends of justice and protect the rights of the party.
For purposes of availing the benefits and services under the RA, a lawyer or professional partner- ship shall secure a certi- fication from the Public Attorneys Office (PAO), the Department of Jus- tice (DOJ) or accredited association of the Su- preme Court indicating that the said legal ser- vices to be provided are within the services defined by the Supreme Court, and that the agencies cannot provide the legal services to be provided by the private counsel.
In determining the num- ber of hours actually provided by the lawyer and/or professional firm in the provision of legal services, the association and/or organization duly accredited by the Su- preme Court shall issue the necessary certifica- tion that said legal ser- vices were actually un- dertaken, which shall be submitted to the BIR for purposes of availing tax deductions.
A lawyer or professional partnerships rendering actual free legal ser- vices, shall be entitled to an allowable deduc- tion from the gross income, the amount that could have been collected for the actual free legal services ren- dered or up to 10% of the gross income de- rived from the actual performance 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 minimum 60-hour mandatory legal aid services rendered to indigent litigants as re- quired under the Rule on Mandatory Legal Aid Service for Practicing Lawyers, under BAR Matter No. 2012, issued by the Supreme Court.
REVENUE MEMORAN- DUM CIRCULAR NO. 24-2010
RMC No. 24-2010 defers until June 30, 2010 the implementation of Reve- nue Regulations No. 7- 2009 relative to the Elec- t roni c Document ar y Stamp Tax (eDST) Sys- Page 7 LCA LINES
ers who cannot as yet comply with the require- ments of said system are advised to adopt the Constructive Stamping/ Receipt System (CS/ RS) of Documentary Stamp Tax provided under Revenue Memo- randum Circular No. 1- 2010.
tem.
After the said date, no further request for de- ferment on the manda- tory use of the said system shall be enter- tained.
During the interim pe- riod of suspension, taxpayers who are al- ready technically capa- ble to use the eDST System may voluntarily avail of the same. However, those taxpay-
IMPLEMENTING RULES AND REGULATIONS OF THE REAL ESTATE IN- VESTMENT TRUST (REIT) ACT OF 2009
FEATURES
The Implementing Rules and Regulations of RA 9856 shall make way for the full implementation of the The Real Estate In- vestment Trust (REIT) Act of 2009 which seeks to promote the development of capital market and de- mocratize wealth by broadening the participa- tion of Filipinos in the ownership of real estate companies in the Philip- pines. The REIT law also aims to use the capital market as an instrument to help finance and devel- op infrastructure projects and protect the investing public.
With a minimum capitali- zation of P300 million, a REIT company may apply for registration of its se- curities with the SEC and avail of incentives as provided for by the law, such as favorable tax rates and lowered fees. On the side of the inves- tor, shareholders will be assured of steady in- come flow with the law requiring REIT compa- nies to declare annually at least 90 percent of its distributable income as dividends 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%20Apri l % 2015%202010.pdf
A.M. No. 09-6-8-SC RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
FEATURES
The Supreme Court promulgated the Rules of Procedure for Environ- mental Cases (Rules) which will serve as a cat- alyst in support of sweeping and far- reaching reforms in envi- ronmental litigation and protection. The Rules are the first of its kind in the world.
Highlights of the Rules include provisions on: (1) citizen suits, (2) consent decree, (3) environmental protec- tion order, (4) writ of kalikasan, (5) writ of continuing mandamus, (6)strategic lawsuits against public partici- pation (SLAPP) and (7) the precautionary principle.
To further encourage the protection of the envi- ronment, the Rules ena- ble litigants enforcing environmental rights to file their cases as citizen suits. As a procedural device, citizen suits per- mit deferred of payment of filing fees until after the judgment
Writ of Kalikasanit is available to a natural or 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 behalf of persons whose con- stitutional right to a bal- anced and healthful ecology is violated, or threatened with viola- tion by an unlawful act or omission of a public official or employee, or private individual or entity, involving envi- ronmental damage of such magnitude as to prejudice the life, health or property of inhabit- ants in two or more cit- ies or provinces. The petition for the issuance of a writ of kalikasan can be filed with the Supreme Court or with any of the stations of Page 8 VOLUME III, ISSUE No. 4 the Court of Appeals.
Writ of Continuing Mandamus integrates the ruling in Concerned Residents of Manila Bay v. MMDA G.R. Nos. 171947-48, December 8, 2008) and the exist- ing rule on the issuance of the writ of manda- mus. The writ of con- tinuing Mandamus may be availed of to compel the performance of an act specifically enjoined by law. It permits the court to retain jurisdiction after judgment in order to ensure the successful im- plementation of the reliefs mandated under the court's decision. For this purpose, the court may compel the submission of compliance reports from the respondent govern- ment agencies as well as avail of other means to monitor compliance with its decision. Both peti- tions for the issuance of the writs of kalikasan and mandamus are exempt from the payment of docket fees.
Another significant aspect of the Rules is the Precau- tionary Principleit finds direct application in the evaluation of evidence in cases before the courts. The precautionary princi- ple bridges the gap in cases where scientific cer- tainty in factual findings cannot be achieved. By applying the precaution- ary principle, the court may construe a set of facts as warranting either judicial action or inaction, with the goal of preserv- ing and protecting the environment.
To see the full text, please visit: http:// s c . j udi c i a r y . go 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- TOYA G.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 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 LEONITO ACUZAR vs. APRONIANO JOROLAN and HON. EDUARDO APRESA, PEOPLES LAW ENFORCEMENT BOARD (PLEB) Chair- man, New Corella, Da- vao del Norte G.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 Order with 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 r was 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 LINES Page 9 TECHNOL EIGHT PHIL- IPPINES CORPORA- TION vs. NATIONAL LABOR RE- LATIONS COMMISSION AND DENNIS AMULAR G.R. No. 187605 April 13, 2010
FACTS: 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
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 to 2002; 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. ASISTIO vs. HON. THELMA CAN- LAS TRINIDAD-PE AGUIRRE, Presiding Judge, Regional Trial Court, Caloocan City, Branch 129; HON. ARTHUR O. MALABAGUIO, Pre- siding Judge, Metro- politan Trial Court, Caloocan City, Branch 52; ENRICO R. ECHIVERRI, Board of Election In- spectors of Precinct 1811A, Barangay 15, Caloocan City; and the CITY ELECTION OFFICER, Caloocan City G.R. No. 191124 April 27, 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
Page 12 VOLUME 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 of Appeal 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 of appeal 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 adherence to 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
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) that a 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 LINES Page 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- rangay 15, Caloocan City.
VOLUME III, ISSUE No. 4 Page 14 Volume III Issue 4 April-May 2010 LAGUNDI-CARONAN AND ASSOCIATES J L s C O R N E R
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.
Electronic Filing - Recorded 1915 MDA 2015 Form Report 3012 Reply Letter Request Filled Out Form For ORAL ARGUMENTS or JUST BRIEF February 13, 2016 With Proof of Service and Verification