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14. China Banking Corporation v.

G.R. No. 172509
February 4, 2015
China Banking Corporation (CBC) is a universal bank duly organized under the
laws of the Philippines. It is engaged in transactions involving sales of foreign exchange
to the Central Bank of the Philippines, commonly known as SWAP Transactions. CBC
did not pay tax on the SWAP transactions for the years 1982-1986.
On 19 April 1989, CBC was assessed by the BIR for deficiency DST on the sales
of foreign bills of exchange to the Central Bank amounting to P 11,383, 165.50. CBC
protested asserting five defenses: double taxation, absence of liability, due process
violation, validity of assessment and tax exemption.
On 6 December 2001, more than 12 years after the filing of the protest, the
Commissioner of Internal Revenue (CIR) rendered a decision reiterating the deficiency
DST assessment and ordered the payment thereof plus increments within 30 days from
receipt of the Decision.
The CIR replied to the CBCs protest only on 06 December 2001 in which it
ordered CBC to pay its tax deficiency. Thereafter, CBC filed a Petition for Review with
the CTA.
The CTA denied CBCs petition ruling that the SWAP transaction is a telegraphic
transfer subject to DST; thus, CBC is liable to pay the alleged deficiency.
On appeal, CBC raised for the first time the issue of prescription. The BIR did not
address the issue of prescription in its Comment.
Issue: Whether the right of the BIR to collect the assessed DST from CBC is barred by
Yes, the BIRs claim is barred by prescription. Following Sec. 319(c) of the 1977
NIRC (the Tax Code applicable at the time of assessment), assessed tax must be
collected by distraint or levy and/or court proceeding within three years from the date
when the BIR mails/releases/sends the assessment notice to the taxpayer.
In this case, the records do not show when the assessment notice was mailed,
released or sent to CBC. Nevertheless, the latest possible date that the BIR could have
released, mailed or sent the assessment notice was on the same date that CBC
received it, 19 April 1989. Assuming therefore that 19 April 1989 is the reckoning date,
the BIR had three years to collect the assessed DST. However, the records of this case
show that there was neither a warrant of distraint or levy served on CBC's properties nor
a collection case filed in court by the BIR within the three-year period.
The attempt of the BIR to collect the tax through its Answer with a demand for
CBC to pay the assessed DST in the CTA on 11 March 2002 did not comply with
Section 319(c) of the 1977 Tax Code, as amended. The demand was made almost
thirteen years from the date from which the prescriptive period is to be reckoned. Thus,
the attempt to collect the tax was made way beyond the three-year prescriptive period.

The Court also stated that although CBC raised the issue of prescription for the
first time only during appeal, this does not negate the applicability of prescription. Citing
Sec. 1 of Rule 9 of the Rules of Court, the Court ruled that if the pleadings or evidence
on record shows that the claim is barred by prescription; the court is mandated to
dismiss the claim even if prescription was not raised as a defense.
The principle of estoppel likewise applies. As a general rule, the principle of
estoppel and waiver does not prevent the government from collecting taxes as the BIR
is not bound by the mistake or negligence of its agents. Nonetheless, the Supreme
Court enunciated that the principle is not absolute.
Relying on Republic v. Ker & Co. Ltd., the Court ruled that estoppel cannot apply
in this case as the CIR failed to raise the issue of prescription in its Comment. The 12year delay in collecting the assessed tax further convinced the Court that estoppel could
not apply in this case.