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NO 18804 (1965)
FACTS: On March 2, 1959, respondent Western Pacific Corp was
assessed deficiency income tax for the year 1953. The assessment
was brought about by the disallowance listed in respondents
return as bad debts
1. The assessment was received by respondent on the same
date (March 2, 1959).
2. On March 5, 1959, CIR wrote a demand letter with the
final breakdown of the assessment.
3. However, on June 29, 1959, Western Pacific Corp
requested for non-assessment, claiming that the claim had
prescribed and that said items should be considered as
allowable deductions
4. On July 30, 1959, CIR denied the request and demanded
payment of the same within 30 days from receipt of
demand
5. Respondent corporation, on September 19, 1959,
requested that it be allowed until September 25 to submit
its formal objections to the assessment. The formal
objections submitted by Western Pacific were identical to
its former objections and as such, CIR denied the request.
6. The CIR, then, sent on October 28, 1959 a letter
demanding payment within 10 days
7. On appeal, CA absolved the respondent from the
assessment however it ruled out that the assessment
letter dated March 2, 1959 was within 5-year prescriptive
period
ISSUE: WON the assessment had prescribed
HELD: No. February 28, 1959 fell on a Saturday. Pursuant to
Republic Act No. 1880, as, implemented by Executive Order No.
25, effective July 1, 1959, all bureaus and offices of the
government, except schools, court, hospitals and health clinics,
hold office only five days a week or from Monday to Friday.
Saturday and Sunday, are constituted public holidays or days of
exemption from labor or work as far as government offices,
including that of respondent Commissioner, are concerned. The
offices and bureaus concerned are officially closed on those days.
So that on February 28, 1959 and March 1, 1959, which
were Saturday and Sunday, respectively, the office of
respondent was officially closed. And where the last day for
beyond
the
five-year
HELD:
Sec. 318 (now Section 203) of the National Internal Revenue
Code, the law then applicable reads:
Sec 318.Period of Limitations upon assessment and
collection. Except as provided in the succeeding
section, internal revenue taxes shall be assessed
within five years after the return was filed, and no
proceeding in court without assessment for the
collection of such taxes shall be begun after the
expiration of such period. For the purpose of this
section, a return filed before the last day
prescribed by law for the filing thereof shall be
considered as filed on such last day: Provided,
That this limitation shall not apply to cases already
investigated prior to the approval of this
Code. (emphasis ours)
Carnation filed its annual income tax and percentage tax
returns for the fiscal year ending September 30, 1981 on
January 15, 1982 and November 20, 1981, respectively. In
accordance with the above-quoted provision of law, private
respondent's 1981 income and sales taxes could have been
validly assessed only until January 14, 1987 and November
19, 1986, respectively. However, Carnation's income and
sales taxes were assessed only on July 29, 1987, beyond
the five-year prescriptive period.
Petitioner BIR Commissioner contends that the waivers signed by
Carnation were valid although not signed by the BIR Commissioner
because (a) when the BIR agents/examiners extended the period
to audit and investigate Carnation's tax returns, the BIR gave its
implied consent to such waivers; (b) the signature of the
Commissioner is a mere formality and the lack of it does not
vitiate binding effect of the waivers; and (c) that a waiver is not a
contract but a unilateral act of renouncing ones right to avail of the
of
1997,
The issue reached the Court of Tax Appeals (CTA) which ruled that
the assessment issued is void because in the first place, when
SCMC requested for a reinvestigation, there was no agreement as
to the extension of the prescriptive period; that a mere request for
reinvestigation does not automatically suspend the running of the
prescriptive period. The CTA ruled that the FAN issued in 1955 was
already way beyond the 5 year prescriptive period.
ISSUE: WON the CTA is correct
HELD: No. This is one case where a taxpayer is barred from
setting up the defense of prescription even though there was not a
written agreement. It is true that when a request for
reinvestigation is made by the taxpayer, the same does
not toll the running of the prescriptive period unless there is a
written agreement between the CIR and the taxpayer. However, in
this case, due to the repeated requests of SCMC which were acted
FACTS: The case arose from the Annual Income Tax Return filed
by petitioner for the calendar year ended December 31, 1994
which presented a net income of P30,877,387.00 and the tax
due of P10,807,086.00. After deducting tax credits for the year,
petitioner paid the amount of P10,247,384.00.
1. August 10, 1995, Revenue District Office issued Letter of
Authority (LOA) to examine petitioners books of account
and other accounting records for internal revenue taxes for
January 1 - December 31, 1994.
2. Petitioner was told that there were deficiency taxes,
inclusive of surcharges, interest and compromise penalty
3. August 29, 1997, the Revenue District Officer invited
petitioner to send a representative to an informal
conference on September 15, 1997.
o SEPTEMBER 22, 1997, petitioners Comptroller,
Lorenza Tolentino, executed a "Waiver of the Statute
of Limitation Under the National Internal
Revenue Code (NIRC)" which waived the running of
the prescriptive period provided by Sections 223 and
224 of the NIRC and consented to the assessment and
collection of taxes which may be found due after the
examinationat any time after the lapse of the period of
limitations fixed until the completion of the
investigation.
4. July 2, 1998, Revenue Officer submitted his audit report
recommending the issuance of an assessment and
deficiency taxes of P136,952,408.97.
5. October 5, 1998, BIR issued Pre-Assessment Notices
informing petitioner of the results of the investigation.
6. December 9, 1998, BIR issued Assessment/Demand
stating the following deficiency taxes, inclusive of interest
and compromise penalty for a Total of P111,291,214.46
7. March 16, 1999, a Preliminary Collection Letter was
sent to the petitioner to pay the assessment within (10)
days from receipt of the letter.
8. November 10, 1999, a Final Notice for Seizure was
issued giving the petitioner (10) days from receipt to pay.
o November 24, 1999, Petitioner received a copy of the
final notice
o November 26, 1999, petitioner asked to be clarified
how the tax liability of P111M was reached and
9.
10.
11.
12.
13. August 12, 2002, an appeal was filed with the CA which
disagreed with the CTA saying that the remedy was not
proper. Only decisions of the BIR, denying the request for
reconsideration or reinvestigation may be appealed to the
CTA. Mere assessment notices which have become final
after the lapse of (30)-day reglementary period are not
appealable. Thus, CTA should not have entertained the
petition at all. The grounds relied upon by the CTA are
merely formal in nature.
tax involved was more than Php1 million, and the period to
assess was yet about to prescribe, hence it should have
been accepted and signed by the Commissioner of Internal
Revenue, not a mere RDO. BIR moved for reconsideration
of the CTA decision but its motion was denied. It then
sought recourse with the Court of Appeals but said court
denied its petition and affirmed the CTA decision.
ISSUE:
Petitioner Commissioner of Internal Revenue
presents these basic questions for resolution: (1) Is the waiver
valid? And (2) Did the three-year period to assess internal revenue
taxes prescribe?
HELD:
(1) Three-year period within which to asses internal
revenue taxes; Extension by means of waiver; Requisites.Petitioner contends that the waiver was validly executed mainly
because it complied with Section 222(b) of the National Internal
Revenue Code (NIRC). Petitioner points out that the waiver was in
writing, signed by the taxpayer and the Commissioner, and
executed within the three-year prescriptive period. Petitioner also
argues that the requirements in RMO No. 20-90 are merely
directory; thus, the indication of the dates of execution and
acceptance of the waiver, by the taxpayer and the BIR,
respectively, are not required by law. Petitioner adds that there is
no provision in RMO No. 20-90 stating that a waiver may be
invalidated upon failure of the BIR to furnish the taxpayer a copy
of the waiver. Further, it contends that respondents execution of
the waiver was a renunciation of its right to invoke prescription.
Petitioner also argues that the government cannot be estopped by
the mistakes committed by its revenue officer in the enforcement
of RMO No. 20-90.
On the other hand, respondent counters that the waiver is void
because it did not comply with RMO No. 20-90. Respondent assails
the waiver because (1) it was not signed by the Commissioner
despite the fact that the assessment involves an amount of more
than Php 1 Million; (2) there is no stated date of acceptance by the
Commissioner or his duly authorized representative; and (3) it
was not furnished a copy of the BIR-accepted waiver. Respondent
also cites Philippine Journalists, Inc. vs Commissioner of Internal
Revenue (447 SCRA 214 (2004)) and contends that the
The earliest attempt of the BIR to collect on Assessment No. FAS5-85-89-002054 was its issuance and service of a Warrant of
Distraint and/or Levy on petitioner BPI. Although the Warrant was
issued on 15 October 1992, previous to the expiration of the
period for collection on 19 October 1992, the same was served on
petitioner BPI only on 23 October 1992.
It is not essential that the Warrant of Distraint and/or Levy be fully
executed so that it can suspend the running of the statute of
limitations on the collection of the tax. It is enough that the
proceedings have validly began or commenced and that their
execution has not been suspended by reason of the voluntary
desistance of the respondent BIR Commissioner. It is only logical
to require that the Warrant of Distraint and/or Levy be, at the very
least, served upon the taxpayer in order to suspend the running of
the prescriptive period for collection of an assessed tax, because it
may only be upon the service of the Warrant that the taxpayer is
informed of the denial by the BIR of any pending protest of the
said taxpayer, and the resolute intention of the BIR to collect the
tax assessed.
If the service of the Warrant of Distraint and/or Levy on petitioner
BPI on 23 October 1992 was already beyond the prescriptive
period for collection of the deficiency DST, which had expired on
19 October 1992, then what more the letter of respondent BIR
Commissioner, dated 13 August 1997 and received by the counsel
of the petitioner BPI only on 11 September 1997, denying the
protest of petitioner BPI and requesting payment of the deficiency
DST? Even later and more unequivocally barred by prescription on
collection was the demand made by respondent BIR Commissioner
for payment of the deficiency DST in her Answer to the Petition for
Review of petitioner BPI before the CTA, filed on 08 December
1997.[23]
Though the statute of limitations on assessment and collection of
national internal revenue taxes benefits both the Government and
the taxpayer, it principally intends to afford protection to the
taxpayer against unreasonable investigation. The indefinite
extension of the period for assessment is unreasonable because it
deprives the said taxpayer of the assurance that he will no longer
be subjected to further investigation for taxes after the expiration
of a reasonable period of time.[24] As aptly explained in Republic
of the Philippines v. Ablaza[25]
8. On April 14, 1962 Ker & Co., Ltd. through its counsel
moved for the dismissal of the complaint on the ground
that the court did not acquire jurisdiction over the person
of the defendant and that plaintiff's cause of action has
prescribed.
The issues in this case are:
1. Did the Court of First Instance acquire jurisdiction over the
person of defendant Ker & Co., Ltd.?
2. Did the right of the Commissioner of Internal Revenue to
assess deficiency income tax for the year 1947 prescribe?
3. Did the filing of a petition for review by the taxpayer in the
Court of Tax Appeals suspend the running of the statute of
limitations to collect the deficiency income for the years
1948, 1949 and 1950?
4. When did the delinquency interest on the deficiency
income tax for the years 1948, 1949 and 1950 accrue?
First Issue - Messrs. Leido and Associates acted as counsel for Ker
Co., Ltd. when this tax case was in its administrative stage and
when it appealed the case to the CTA and later to this Court.
Perforce, they were the taxpayer's agent when summons was
served.
Second Issue - The stand of the Republic of the Philippines hinges
on whether or not the income tax return for 1947 was fraudulent.
Said court resolved the issue without touching upon fraudulence of
the return. The reason is that the complaint alleged no fraud, nor
did the plaintiff present evidence to prove fraud. Fraud is a serious
charge and, to be sustained, it must be supported by clear and
convincing proof. Accordingly, fraud should have been alleged and
proved in the lower court. On these premises we therefore sustain
the ruling of the lower court upon the point of prescription.
It would be worth mentioning that since the assessment for
deficiency income tax for 1947 has become final and executory,
Ker & Co., Ltd. may not anymore raise defenses which go into the
merits of the assessment, i.e., prescription of the Commissioner's
right to assess the tax. Such was our ruling in previous cases. In
this case however, Ker & Co., Ltd. raised the defense of
prescription in the proceedings below and the Republic of the
Philippines, instead of questioning the right of the defendant to
raise such defense, litigated on it and submitted the issue for
FACTS: This is a suit for collection of deficiency income tax for the
year 1948 in the amount of P5,962.83.
1. The corresponding notice of assessment was issued on
September 24, 1949.
2. The complaint was filed on December 27, 1961.
3. After the defendant filed his answer but before trial started
he moved to dismiss on the ground of prescription.
4. The court received evidence on the motion, and on
September 1, 1962 issued an order finding the same
meritorious and hence dismissing the complaint.
5. Plaintiff appealed from the order of dismissal.
ISSUE: WON the right to collect has already prescribed.
HELD: YES
The statute of limitations which governs this case is Section 332,
subsection (c), of the National Internal Revenue Code, which
provides for an exemption as to the period of limitation
thattax may be collected by distraint or levy or by a
proceeding in court, but only if begun (1) within five years
after the assessment of the tax, or (2) prior to the
expiration of any period for collection agreed upon in
writing by the Collector of Internal Revenue and the
taxpayer before the expiration of such five-year period. The
period so agreed upon may be extended by subsequent
agreements in writing made before the expiration of the
period previously agreed upon.
The present suit was not begun within five years after the
assessment of the tax, which was in 1949.
Was it, however, begun prior to the expiration of any period
for collection agreed upon in writing by the Commissioner
of Internal Revenue and the defendant before the
expiration of such five-year period? NO.
The only evidence of such written agreement, in the form of
a "waiver of the statute of limitations" signed by the
defendant, dated December 17, 1959. But this waiver was
ineffective because it was executed beyond the original
five-year limitation.
The plaintiff contends that the period of prescription was
suspended by the defendant's various requests for reinvestigation
or reconsideration of the tax assessment. The trial court
rejected this contention, saying that a mere request for
10. August 29, 1986, CTA enjoined the CIR from collecting the
deficiency taxes. It found that while the assessments for
the deficiency taxes were made within the 5-year period of
limitation, the right of petitioner to collect the same
has already prescribed in accordance with Section 319
(c) of the Tax Code of 1977: that an assessment of any
internal revenue tax within the five-year period of
limitation may be collected by distraint or levy or by a
proceeding in court, BUT ONLY IF begun within five (5)
years after the assessment of the tax. Hence, this petition.
11. Petitioner contends that the 5-year prescriptive period
provided by law to make a collection by distraint or
levy or by a proceeding in court has not yet
prescribed. Although he admits that more than (5) years
only on 9 August 2002 that the CIR ordered BPI to pay the
deficiency.
In order to determine whether the prescriptive period for collecting
the tax deficiency was effectively tolled by BPIs filing of the
protest letters dated 20 April and 8 May 1989 as claimed by the
CIR, Section 320 is plainly worded. In order to suspend the
running of the prescriptive periods for assessment and collection,
the request for reinvestigation must be granted by the CIR. The
act of requesting a reinvestigation alone does not suspend
the period. The request should first be granted, in order to
effect suspension.
The Court went on to declare that the burden of proof that the
request for reinvestigation had been actually granted shall be on
the CIR. Such grant may be expressed in its communications with
the taxpayer or implied from the action of the CIR or his
authorized representative in response to the request for
reinvestigation.
There is nothing in the records of this case which indicates,
expressly or impliedly, that the CIR had granted the request for
reinvestigation filed by BPI. What is reflected in the records is the
piercing silence and inaction of the CIR on the request for
reinvestigation, as he considered BPIs letters of protest to be.
Neither did the waiver of the statute of limitations signed by BPI
supposedly effective until 31 December 1994 suspend the
prescriptive period. The CIR himself contends that the waiver is
void as it shows no date of acceptance in violation of RMO No. 2090. At any rate, the records of this case do not disclose any effort
on the part of the BIR to collect the deficiency tax after the
expiration of the waiver until 8 years thereafter when it finally
issued a decision on the protest.
The law prescribing a limitation of actions for the collection of the
income tax is beneficial both to the Government and to its citizens;
to the Government because tax officers would be obliged to act
promptly in the making of assessment, and to citizens because
after the lapse of the period of prescription citizens would have a
feeling of security against unscrupulous tax agents who will always
find an excuse to inspect the books of taxpayers, not to determine
the latters real liability, but to take advantage of every
In a number of cases, this Court has also clarified that the statute
of limitations on the collection of taxes should benefit both the
Government and the taxpayers.
Thus, in Commissioner of Internal Revenue v. B.F. Goodrich,21 this
Court affirmed that the law on prescription should be liberally
construed in order to protect taxpayers and that, as a corollary,
the exceptions to the law on prescription should be strictly
construed.
The Tax Code of 1977, as amended, provides instances when the
running of the statute of limitations on the assessment and
collection of national internal revenue taxes could be suspended,
even in the absence of a waiver, when the taxpayer requests
for a reinvestigation which is granted by the Commissioner;
when the taxpayer cannot be located in the address given by him
in the return filed upon which a tax is being assessed or collected x
xx. (Emphasis supplied.)
Among the exceptions provided by the aforecited section, and
invoked by the CIR as a ground for this petition, is the instance
when the taxpayer requests for a reinvestigation which is granted
by the Commissioner. However, this exception does not apply
to this case since the respondent never requested for a
reinvestigation. More importantly, the CIR could not have
conducted a reinvestigation where, as admitted by the CIR
in its Petition, the respondent refused to submit any new
evidence.
Revenue Regulations No. 12-85, the Procedure Governing
Administrative Protests of Assessment of the Bureau of Internal
Revenue, issued on 27 November 1985, defines the two types
of protest, the request for reconsideration and the request
for reinvestigation, and distinguishes one from the other in
this manner:
Section 6.Protest. - The taxpayer may protest administratively an
assessment by filing a written request for reconsideration or
reinvestigation specifying the following particulars:xxx
For the purpose of protest herein
(a) Request for reconsideration-- refers to a plea for a reevaluation of an assessment on the basis of existing records