Commissioner of Internal Revenue vs. Metro Star Superama, Inc.

(December 8,
2010)
On January 26, 2011, a Letter of Authority was issued for the examination Metro Star
Superama Inc.s (Metro Star) books of accounts and other accounting records for income tax
and other internal revenue taxes for the taxable year 1999. For Metro Stars failure to
comply with several requests for the presentation of records and Subpoena Duces Tecum, an
Indorsement dated September 26, 2001 was issued informing Revenue District Officer of
Legazpi City to proceed with the investigation based on the best evidence obtainable
preparatory to the issuance of assessment notice.
On November 8, 2001, a Preliminary 15-day Letter, which Metro Star received on November
9, 2001, was issued stating that a post audit review was held and it was ascertained that
there was deficiency value-added and withholding taxes due from Metro Star. On April 11,
2002, Metro Star received a Formal Letter of Demand dated April 3, 2002 assessing it an
amount for deficiency value-added and withholding taxes for the taxable year 1999.
Subsequently, a Final Notice of Seizure dated May 12, 2003 was sent to Metro Star, which it
received on May 15, 2003, giving it the last opportunity to settle its deficiency tax liabilities
within 10 days from receipt thereof. On February 6, 2004, Metro Star received a Warrant of
Distraint/Levy dated May 12, 2003 demanding payment of deficiency value-added tax and
withholding tax payment. On July 30, 2004, Metro Star filed with the Office of the CIR a
MR which was denied. Denying that it received a Preliminary Assessment Notice
(PAN) and claiming that it was not accorded with due process, Metro Star filed a petition
for review with the CTA. The CTA-Second Division granted Metro Stars petition for review.
A reconsideration was sought by the CIR but it was denied. On appeal to the CTA-En Banc,
the petition was dismissed.
ISSUE: Whether failure to send the PAN would render the assessment null and void
HELD: On the matter of service of a tax assessment, a further perusal of our ruling
in Barcelon is instructive, viz:
Jurisprudence is replete with cases holding that if the taxpayer denies ever having
received an assessment from the BIR, it is incumbent upon the latter to prove by
competent evidence that such notice was indeed received by the addressee.
The onus probandi was shifted to respondent to prove by contrary evidence that
the Petitioner received the assessment in the due course of mail. The Supreme
Court has consistently held that while a mailed letter is deemed received by the addressee

in the course of mail, this is merely a disputable presumption subject to controversion and a
direct denial thereof shifts the burden to the party favored by the presumption to prove that
the mailed letter was indeed received by the addressee (Republic vs. Court of Appeals, 149
SCRA 351).
The Court agrees with the CTA that the CIR failed to discharge its duty and present any
evidence to show that Metro Star indeed received the PAN dated January 16, 2002. It could
have simply presented the registry receipt or the certification from the postmaster that it
mailed the PAN, but failed. Neither did it offer any explanation on why it failed to comply
with the requirement of service of the PAN.
Indeed, Section 228 of the Tax Code clearly requires that the taxpayer must first be
informed that he is liable for deficiency taxes through the sending of a PAN. He must be
informed of the facts and the law upon which the assessment is made. The law imposes a
substantive, not merely a formal, requirement. To proceed heedlessly with tax collection
without first establishing a valid assessment is evidently violative of the cardinal principle
in administrative investigations - that taxpayers should be able to present their case and
adduce supporting evidence.
This is confirmed under the provisions R.R. No. 12-99 of the BIR which pertinently provide:
xxx
3.1.2 Preliminary Assessment Notice (PAN). - If after review and evaluation by the
Assessment Division or by the Commissioner or his duly authorized representative, as the
case may be, it is determined that there exists sufficient basis to assess the taxpayer for any
deficiency tax or taxes, the said Office shall issue to the taxpayer, at least by registered mail,
a Preliminary Assessment Notice (PAN) for the proposed assessment, showing in detail, the
facts and the law, rules and regulations, or jurisprudence on which the proposed assessment
is based (see illustration in ANNEX A hereof). If the taxpayer fails to respond within fifteen
(15) days from date of receipt of the PAN, he shall be considered in default, in which case, a
formal letter of demand and assessment notice shall be caused to be issued by the said Office,
calling for payment of the taxpayer's deficiency tax liability, inclusive of the applicable
penalties.

From the provision quoted above, it is clear that the sending of a PAN to taxpayer to inform
him of the assessment made is but part of the due process requirement in the issuance of a
deficiency tax assessment, the absence of which renders nugatory any assessment made by
the tax authorities. The use of the word shall in subsection 3.1.2 describes the mandatory
nature of the service of a PAN. The persuasiveness of the right to due process reaches both
substantial and procedural rights and the failure of the CIR to strictly comply with the

requirements laid down by law and its own rules is a denial of Metro Stars right to due
process. Thus, for its failure to send the PAN stating the facts and the law on which the
assessment was made as required by Section 228 of R.A. No. 8424, the assessment made by
the CIR is void.