Republic of the Philippines

Supreme Court
Manila
SECOND DIVISION
COMMISSIONER OF INTERNAL
REVENUE,
Petitioner,

- versus -

G.R. No. 178087

Present:
CARPIO, J., Chairperson,
BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.

KUDOS METAL CORPORATION,

Promulgated:
Respondent.
May 5, 2010
x------------------------------------------------------------------x

DECISION
DEL CASTILLO, J.:
The prescriptive period on when to assess taxes benefits both the government and the
taxpayer.[1] Exceptions extending the period to assess must, therefore, be strictly
construed.
This Petition for Review on Certiorari seeks to set aside the
Decision[2] dated March 30, 2007 of the Court of Tax Appeals (CTA) affirming the
cancellation of the assessment notices for having been issued beyond the prescriptive
period and the Resolution[3] dated May 18, 2007 denying the motion for reconsideration.
Factual Antecedents

On April 15, 1999, respondent Kudos Metal Corporation filed its Annual Income
Tax Return (ITR) for the taxable year 1998.
Pursuant to a Letter of Authority dated September 7, 1999, the Bureau of Internal
Revenue (BIR) served upon respondent three Notices of Presentation of
Records.Respondent failed to comply with these notices, hence, the BIR issued
a Subpeona Duces Tecum dated September 21, 2006, receipt of which was
acknowledged by respondents President, Mr. Chan Ching Bio, in a letter dated October
20, 2000.
A review and audit of respondents records then ensued.
On December 10, 2001, Nelia Pasco (Pasco), respondents accountant, executed a
Waiver of the Defense of Prescription,[4] which was notarized on January 22, 2002,
received by the BIR Enforcement Service on January 31, 2002 and by the BIR Tax Fraud
Division on February 4, 2002, and accepted by the Assistant Commissioner of the
Enforcement Service, Percival T. Salazar (Salazar).
This was followed by a second Waiver of Defense of Prescription[5] executed
by Pasco on February 18, 2003, notarized on February 19, 2003, received by the BIR
Tax Fraud Division on February 28, 2003 and accepted by Assistant Commissioner
Salazar.
On August 25, 2003, the BIR issued a Preliminary Assessment Notice for the
taxable year 1998 against the respondent. This was followed by a Formal Letter of
Demand with Assessment Notices for taxable year 1998, dated September 26,
2003 which was received by respondent on November 12, 2003.
Respondent challenged the assessments by filing its Protest on Various Tax
Assessments on December 3, 2003 and its Legal Arguments and Documents in Support
of Protests against Various Assessments on February 2, 2004.
On June 22, 2004, the BIR rendered a final Decision[6] on the matter, requesting
the immediate payment of the following tax liabilities:
Kind of Tax Amount
Income Tax P 9,693,897.85

VAT 13,962,460.90
EWT 1,712,336.76
Withholding Tax-Compensation 247,353.24
Penalties 8,000.00
Total P25,624,048.76

Ruling of the Court of Tax Appeals, Second Division

Believing that the governments right to assess taxes had prescribed, respondent
filed on August 27, 2004 a Petition for Review[7] with the CTA. Petitioner in turn filed
his Answer.[8]
On April 11, 2005, respondent filed an Urgent Motion for Preferential Resolution
of the Issue on Prescription.[9]
On October 4, 2005, the CTA Second Division issued a Resolution [10] canceling
the assessment notices issued against respondent for having been issued beyond the
prescriptive period. It found the first Waiver of the Statute of Limitations incomplete and
defective for failure to comply with the provisions of Revenue Memorandum Order
(RMO) No. 20-90. Thus:
First, the Assistant Commissioner is not the revenue official authorized
to sign the waiver, as the tax case involves more than P1,000,000.00. In this
regard, only the Commissioner is authorized to enter into agreement with the
petitioner in extending the period of assessment;
Secondly, the waiver failed to indicate the date of acceptance. Such
date of acceptance is necessary to determine whether the acceptance was made
within the prescriptive period;
Third, the fact of receipt by the taxpayer of his file copy was not
indicated on the original copy. The requirement to furnish the taxpayer with a
copy of the waiver is not only to give notice of the existence of the document
but also of the acceptance by the BIR and the perfection of the agreement.
The subject waiver is therefore incomplete and defective. As such, the
three-year prescriptive period was not tolled or extended and continued to
run. x x x[11]

Petitioner moved for reconsideration but the CTA Second Division denied the motion in
a Resolution[12] dated April 18, 2006.
Ruling of the Court of Tax Appeals, En Banc
On appeal, the CTA En Banc affirmed the cancellation of the assessment
notices. Although it ruled that the Assistant Commissioner was authorized to sign the
waiver pursuant to Revenue Delegation Authority Order (RDAO) No. 05-01, it found
that the first waiver was still invalid based on the second and third grounds stated by the
CTA Second Division.Pertinent portions of the Decision read as follows:
While the Court En Banc agrees with the second and third grounds for
invalidating the first waiver, it finds that the Assistant Commissioner of the
Enforcement Service is authorized to sign the waiver pursuant to RDAO No.
05-01, which provides in part as follows:
A.

For National Office cases

Designated Revenue Official

1. Assistant Commissioner (ACIR), For tax fraud and policy

Enforcement Service cases
2. ACIR, Large Taxpayers Service For large taxpayers cases
other than those cases falling
under Subsection B hereof
3. ACIR, Legal Service For cases pending
verification and awaiting
resolution of certain legal issues prior
to
prescription
and
for
issuance/compliance
of Subpoena Duces Tecum
4. ACIR, Assessment Service (AS) For cases which are
pending in or subject to
review or approval by the
ACIR, AS

Based on the foregoing, the Assistant Commissioner, Enforcement

Service is authorized to sign waivers in tax fraud cases. A perusal of the
records reveals that the investigation of the subject deficiency taxes in this case
was conducted by the National Investigation Division of the BIR, which was
formerly named the Tax Fraud Division. Thus, the subject assessment is a tax
fraud case.
Nevertheless, the first waiver is still invalid based on the second and
third grounds stated by the Court in Division. Hence, it did not extend the
prescriptive period to assess.
Moreover, assuming arguendo that the first waiver is valid, the second
waiver is invalid for violating Section 222(b) of the 1997 Tax Code which
mandates that the period agreed upon in a waiver of the statute can still be
extended by subsequent written agreement, provided that it is executed prior
to the expiration of the first period agreed upon. As previously discussed, the
exceptions to the law on prescription must be strictly construed.
In the case at bar, the period agreed upon in the subject first waiver
expired on December 31, 2002. The second waiver in the instant case which
was supposed to extend the period to assess to December 31, 2003 was
executed on February 18, 2003 and was notarized on February 19,
2003. Clearly, the second waiver was executed after the expiration of the first
period agreed upon. Consequently, the same could not have tolled the 3-year
prescriptive period to assess.[13]

Petitioner sought reconsideration but the same was unavailing.

Issue
Hence, the present recourse where petitioner interposes that:
THE COURT OF TAX APPEALS EN BANC ERRED IN RULING THAT
THE GOVERNMENTS RIGHT TO ASSESS UNPAID TAXES OF
RESPONDENT PRESCRIBED.[14]

Petitioners Arguments

Petitioner argues that the governments right to assess taxes is not barred by
prescription as the two waivers executed by respondent, through its accountant,
effectively tolled or extended the period within which the assessment can be made. In
disputing the conclusion of the CTA that the waivers are invalid, petitioner claims that
respondent is estopped from adopting a position contrary to what it has previously
taken. Petitioner insists that by acquiescing to the audit during the period specified in the
waivers, respondent led the government to believe that the delay in the process would not
be utilized against it. Thus, respondent may no longer repudiate the validity of the
waivers and raise the issue of prescription.
Respondents Arguments
Respondent maintains that prescription had set in due to the invalidity of the waivers
executed by Pasco, who executed the same without any written authority from it, in clear
violation of RDAO No. 5-01. As to the doctrine of estoppel by acquiescence relied upon
by petitioner, respondent counters that the principle of equity comes into play only when
the law is doubtful, which is not present in the instant case.
Our Ruling
The petition is bereft of merit.
Section 203[15] of the National Internal Revenue Code of 1997 (NIRC) mandates
the government to assess internal revenue taxes within three years from the last day
prescribed by law for the filing of the tax return or the actual date of filing of such return,
whichever comes later. Hence, an assessment notice issued after the three-year
prescriptive period is no longer valid and effective. Exceptions however are provided
under Section 222[16] of the NIRC.
The waivers executed by respondents
accountant did not extend the period within
which the assessment can be made

Petitioner does not deny that the assessment notices were issued beyond the threeyear prescriptive period, but claims that the period was extended by the two waivers
executed by respondents accountant.
We do not agree.
Section 222 (b) of the NIRC provides that the period to assess and collect taxes
may only be extended upon a written agreement between the CIR and the taxpayer
executed before the expiration of the three-year period. RMO 20-90[17] issued on April 4,
1990 and RDAO 05-01[18] issued on August 2, 2001 lay down the procedure for the
proper execution of the waiver, to wit:
1. The waiver must be in the proper form prescribed by RMO 20-90. The
phrase but not after ______ 19 ___, which indicates the expiry date of
the period agreed upon to assess/collect the tax after the regular threeyear period of prescription, should be filled up.
2. The waiver must be signed by the taxpayer himself or his duly
authorized representative. In the case of a corporation, the waiver must
be signed by any of its responsible officials. In case the authority is
delegated by the taxpayer to a representative, such delegation should be
in writing and duly notarized.
3. The waiver should be duly notarized.
4. The CIR or the revenue official authorized by him must sign the waiver
indicating that the BIR has accepted and agreed to the waiver. The date
of such acceptance by the BIR should be indicated. However, before
signing the waiver, the CIR or the revenue official authorized by him
must make sure that the waiver is in the prescribed form, duly notarized,
and executed by the taxpayer or his duly authorized representative.
5. Both the date of execution by the taxpayer and date of acceptance by the
Bureau should be before the expiration of the period of prescription or
before the lapse of the period agreed upon in case a subsequent
agreement is executed.

6. The waiver must be executed in three copies, the original copy to be

attached to the docket of the case, the second copy for the taxpayer and
the third copy for the Office accepting the waiver. The fact of receipt by
the taxpayer of his/her file copy must be indicated in the original copy
to show that the taxpayer was notified of the acceptance of the BIR and
the perfection of the agreement.[19]
A perusal of the waivers executed by respondents accountant reveals the following
infirmities:
1.

2.
3.

The waivers were executed without the notarized written authority

of Pasco to sign the waiver in behalf of respondent.
The waivers failed to indicate the date of acceptance.
The fact of receipt by the respondent of its file copy was not indicated
in the original copies of the waivers.

Due to the defects in the waivers, the period to assess or collect taxes was not
extended. Consequently, the assessments were issued by the BIR beyond the three-year
period and are void.
Estoppel does not apply in this case
We find no merit in petitioners claim that respondent is now estopped from
claiming prescription since by executing the waivers, it was the one which asked for
additional time to submit the required documents.
In Collector of Internal Revenue v. Suyoc Consolidated Mining Company,[20] the
doctrine of estoppel prevented the taxpayer from raising the defense of prescription
against the efforts of the government to collect the assessed tax. However, it must be
stressed that in the said case, estoppel was applied as an exception to the statute of
limitations on collection of taxes and not on the assessment of taxes, as the BIR was able
to make an assessment within the prescribed period. More important, there was a finding
that the taxpayer made several requests or positive acts to convince the government to
postpone the collection of taxes, viz:

It appears that the first assessment made against respondent based on its
second final return filed on November 28, 1946 was made on February 11,
1947. Upon receipt of this assessment respondent requested for at least one
year within which to pay the amount assessed although it reserved its right to
question the correctness of the assessment before actual payment. Petitioner
granted an extension of only three months. When it failed to pay the tax within
the period extended, petitioner sent respondent a letter on November 28,
1950 demanding payment of the tax as assessed, and upon receipt of the letter
respondent asked for a reinvestigation and reconsideration of the assessment.
When this request was denied, respondent again requested for a
reconsideration on April 25, 1952, which was denied on May 6, 1953, which
denial was appealed to the Conference Staff. The appeal was heard by the
Conference Staff from September 2, 1953to July 16, 1955, and as a result of
these various negotiations, the assessment was finally reduced on July 26,
1955. This is the ruling which is now being questioned after a protracted
negotiation on the ground that the collection of the tax has already prescribed.
It is obvious from the foregoing that petitioner refrained from collecting
the tax by distraint or levy or by proceeding in court within the 5-year period
from the filing of the second amended final return due to the several requests
of respondent for extension to which petitioner yielded to give it every
opportunity to prove its claim regarding the correctness of the assessment.
Because of such requests, several reinvestigations were made and a hearing
was even held by the Conference Staff organized in the collection office to
consider claims of such nature which, as the record shows, lasted for several
months. After inducing petitioner to delay collection as he in fact did, it is most
unfair for respondent to now take advantage of such desistance to elude his
deficiency income tax liability to the prejudice of the Government invoking
the technical ground of prescription.
While we may agree with the Court of Tax Appeals that a mere request
for reexamination or reinvestigation may not have the effect of suspending the
running of the period of limitation for in such case there is need of a written
agreement to extend the period between the Collector and the taxpayer, there
are cases however where a taxpayer may be prevented from setting up the
defense of prescription even if he has not previously waived it in writing as
when by his repeated requests or positive acts the Government has been, for
good reasons, persuaded to postpone collection to make him feel that the
demand was not unreasonable or that no harassment or injustice is meant by
the Government. And when such situation comes to pass there are authorities

that hold, based on weighty reasons, that such an attitude or behavior should
not be countenanced if only to protect the interest of the Government.
This case has no precedent in this jurisdiction for it is the first time that
such has risen, but there are several precedents that may be invoked in
American jurisprudence. As Mr. Justice Cardozo has said: The applicable
principle is fundamental and unquestioned. He who prevents a thing from
being done may not avail himself of the nonperformance which he has himself
occasioned, for the law says to him in effect this is your own act, and therefore
you are not damnified. (R. H. Stearns Co. vs. U.S., 78 L. ed., 647). Or, as was
aptly said, The tax could have been collected, but the government withheld
action at the specific request of the plaintiff. The plaintiff is now estopped and
should not be permitted to raise the defense of the Statute of Limitations.
[Newport Co. vs. U.S., (DC-WIS), 34 F. Supp. 588].[21]

Conversely, in this case, the assessments were issued beyond the prescribed
period. Also, there is no showing that respondent made any request to persuade the BIR
to postpone the issuance of the assessments.
The doctrine of estoppel cannot be applied in this case as an exception to the
statute of limitations on the assessment of taxes considering that there is a detailed
procedure for the proper execution of the waiver, which the BIR must strictly follow. As
we have often said, the doctrine of estoppel is predicated on, and has its origin in, equity
which, broadly defined, is justice according to natural law and right. [22] As such, the
doctrine of estoppel cannot give validity to an act that is prohibited by law or one that is
against public policy.[23] It should be resorted to solely as a means of preventing injustice
and should not be permitted to defeat the administration of the law, or to accomplish a
wrong or secure an undue advantage, or to extend beyond them requirements of the
transactions in which they originate.[24] Simply put, the doctrine of estoppel must be
sparingly applied.
Moreover, the BIR cannot hide behind the doctrine of estoppel to cover its failure
to comply with RMO 20-90 and RDAO 05-01, which the BIR itself issued. As stated
earlier, the BIR failed to verify whether a notarized written authority was given by the
respondent to its accountant, and to indicate the date of acceptance and the receipt by the
respondent of the waivers. Having caused the defects in the waivers, the BIR must bear
the consequence. It cannot shift the blame to the taxpayer. To stress, a waiver of the

statute of limitations, being a derogation of the taxpayers right to security against

prolonged and unscrupulous investigations, must be carefully and strictly construed.[25]
As to the alleged delay of the respondent to furnish the BIR of the required
documents, this cannot be taken against respondent. Neither can the BIR use this as an
excuse for issuing the assessments beyond the three-year period because with or without
the required documents, the CIR has the power to make assessments based on the best
evidence obtainable.[26]
WHEREFORE, the petition is DENIED. The assailed Decision dated March
30, 2007 and Resolution dated May 18, 2007 of the Court of Tax Appeals are
herebyAFFIRMED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 81446

August 18, 1988

BONIFACIA SY PO, petitioner,

vs.
HONORABLE COURT OF TAX APPEALS AND HONORABLE COMMISSIONER OF
INTERNAL REVENUE, respondents.

Basilio E. Duaban for petitioner.

SARMIENTO, J.:

This is an appeal from the decision 1 of the respondent Court of Tax Appeals, dated
September 30,1987, which affirmed an earlier decision of the correspondent
Commissioner of Internal Revenue in assessment letters dated August 16, 1972 and
September 26, 1972, which ordered the payment by the petitioner of deficiency
income tax for 1966 to 1970 in the amount of P7,154,685.16 and deficiency specific
tax for January 2, 1964 to January 19, 1972, in the amount of P5,595,003.68.

We adopt the respondent court's finding of facts, to wit:

Petitioner is the widow of the late Mr. Po Bien Sing who died on September 7, 1980.
In the taxable years 1964 to 1972, the deceased Po Bien Sing was the sole
proprietor of Silver Cup Wine Factory (Silver Cup for brevity), Talisay, Cebu. He was
engaged in the business of manufacture and sale of compounded liquors, using
alcohol and other ingredients as raw materials.

On the basis of a denunciation against Silver Cup allegedly "for tax evasion
amounting to millions of pesos" the then Secretary of Finance Cesar Virata directed
the Finance-BIR--NBI team constituted under Finance Department Order No. 13-70
dated February 19, 1971 (Exh- 3, pp. 532-553, Folder II, BIR rec.) to conduct the
corresponding investigation in a memorandum dated April 2, 1971 (p. 528, Folder II,
BIR rec.). Accordingly, a letter and a subpoena duces tecum dated April 13,1971
and May 3,1971, respectively, were issued against Silver Cup requesting production
of the accounting records and other related documents for the examination of the
team. (Exh. 11, pp. 525-526, Folder II, BIR rec.). Mr. Po Bien Sing did not produce his
books of accounts as requested (Affidavit dated December 24, 1971 of Mr.
Generoso. Quinain of the team, p. 525, Folder H, BIR rec.). This prompted the team
with the assistance of the PC Company, Cebu City, to enter the factory bodega of
Silver Cup and seized different brands, consisting of 1,555 cases of alcohol
products. (Exh. 22, Memorandum Report of the Team dated June 5, 1971, pp. 491492, Folder II, BIR rec.). The inventory lists of the seized alcohol products are
contained in Volumes I, II, III, IV and V (Exhibits 14, 15, 16, 17, and 18, respectively,
BIR rec.). On the basis of the team's report of investigation, the respondent
Commissioner of Internal Revenue assessed Mr. Po Bien Sing deficiency income tax
for 1966 to 1970 in the amount of P7,154,685.16 (Exh. 6 pp. 17-19, Folder I, BIR
rec.) and for deficiency specific tax for January 2,1964 to January 19, 1972 in the
amount of P5,595,003.68 (Exh. 8, p. 107, Folder I, BIR rec.).

Petitioner protested the deficiency assessments through letters dated October 9 and
October 30, 1972 (Exhs. 7 and 9, pp. 27-28; pp. 152-159, respectively, BIR rec.),
which protests were referred for reinvestigation. The corresponding report dated
August 13, 1981 (Exh. 1 0, pp. 355, Folder I, BIR rec.) recommended the reiteration
of the assessments in view of the taxpayer's persistent failure to present the books
of accounts for examination (Exh. 8, p. 107, Folder I, BIR rec.), compelling
respondent to issue warrants of distraint and levy on September 10, 1981 (Exh. 11,
p. 361, Folder I, BIR rec.).

The warrants were admittedly received by petitioner on October 14, 1981 (Par. IX,
Petition; admitted par. 2, Answer), which petitioner deemed respondent's decision

denying her protest on the subject assessments. Hence, petitioner's appeal on

October 29,1981. 2

The petitioner assigns the following errors:

RESPONDENT INTENTIONALLY ERRED IN HOLDING THAT PETITIONER HAS NOT

PRESENTED ANY EVIDENCE OF RELEVANCE AND COMPETENCE REQUIRED TO BASH
THE TROUBLING DISCREPANCIES AND SQUARE THE ISSUE OF ILLEGALITY POSITED
ON THE SUBJECT ASSESSMENTS.

II

RESPONDENT COURT OF TAX APPEALS PALPABLY ERRED IN DECIDING THE CASE IN A

WAY CONTRARY TO THE DOCTRINES ALREADY LAID DOWN BY THIS COURT.

III

RESPONDENT COURT OF TAX APPEALS GRAVELY ERRED IN FINDING PO BEEN SING

TO HAVE INCURRED THE ALLEGED DEFICIENCY TAXES IN QUESTION. 3

We affirm.

Settled is the rule that the factual findings of the Court of Tax Appeals are binding
upon this Honorable Court and can only be disturbed on appeal if not supported by
substantial evidence. 4

The assignments of errors boils down to a single issue previously raised before the
respondent Court, i.e., whether or not the assessments have valid and legal bases.

The applicable legal provision is Section 16(b) of the National Internal Revenue Code
of 1977 as amended. It reads:

Sec. 16.

Power of the Commissioner of Internal Revenue to make assessments.

xxx

xxx

xxx

(b)
Failure to submit required returns, statements, reports and other documents.
- When a report required by law as a basis for the assessment of an national internal
revenue tax shall not be forthcoming within the time fixed by law or regulation or
when there is reason to believe that any such report is false, incomplete, or
erroneous, the Commissioner of Internal Revenue shall assess the proper tax on the
best evidence obtainable.

In case a person fails to file a required return or other document at the time
prescribed by law, or willfully or otherwise, files a false or fraudulent return or other
documents, the Commissioner shall make or amend the return from his own
knowledge and from such information as he can obtain through testimony or
otherwise, which shall be prima facie correct and sufficient for all legal purposes.

The law is specific and clear. The rule on the "best evidence obtainable" applies
when a tax report required by law for the purpose of assessment is not available or
when the tax report is incomplete or fraudulent.

In the instant case, the persistent failure of the late Po Bien Sing and the herein
petitioner to present their books of accounts for examination for the taxable years
involved left the Commissioner of Internal Revenue no other legal option except to
resort to the power conferred upon him under Section 16 of the Tax Code.

The tax figures arrived at by the Commissioner of Internal Revenue are by no means
arbitrary. We reproduce the respondent court's findings, to wit:

As thus shown, on the basis of the quantity of bottles of wines seized during the raid
and the sworn statements of former employees Messrs. Nelson S. Po and Alfonso Po
taken on May 26, and 27,1971, respectively, by the investigating team in Cebu City
(Exhs. 4 and 5, pp. 514-517, pp. 511-513, Folder 11, BIR rec.), it was ascertained
that the Silver Cup for the years 1964 to 1970, inclusive, utilized and consumed in
the manufacture of compounded liquours and other products 20,105 drums of
alcohol as raw materials 81,288,787 proof liters of alcohol. As determined, the total
specific tax liability of the taxpayer for 1964 to 1971 amounted to P5,593,003.68
(Exh. E, petition, p. 10, CTA rec.)

Likewise, the team found due from Silver Cup deficiency income taxes for the years
1966 to 1970 inclusive in the aggregate sum of P7,154,685.16, as follows:

1966 P207,636.24

1967 645,335.04

1968 1,683,588.48

1969 1,589,622.48

1970 3,028,502.92

Total amount due.

and collectible

P7,154,685.16

The 50% surcharge has been imposed, pursuant to Section 72 * of the Tax Code and
tax 1/2% monthly interest has likewise been imposed pursuant to the provision of
Section 51(d) ** of the Tax Code (Exh. O, petition). 5

The petitioner assails these assessments as wrong.

In the case of Collector of Internal Revenue vs. Reyes, 6 we ruled:

Where the taxpayer is appealing to the tax court on the ground that the Collector's
assessment is erroneous, it is incumbent upon him to prove there what is the
correct and just liability by a full and fair disclosure of all pertinent data in his
possession. Otherwise, if the taxpayer confines himself to proving that the tax
assessment is wrong, the tax court proceedings would settle nothing, and the way
would be left open for subsequent assessments and appeals in interminable
succession.

Tax assessments by tax examiners are presumed correct and made in good faith.
The taxpayer has the duty to prove otherwise. 7 In the absence of proof of any
irregularities in the performance of duties, an assessment duly made by a Bureau of
Internal Revenue examiner and approved by his superior officers will not be
disturbed. 8 All presumptions are in favor of the correctness of tax assessments. 9

On the whole, we find that the fraudulent acts detailed in the decision under review
had not been satisfactorily rebutted by the petitioner. There are indeed clear
indications on the part of the taxpayer to deprive the Government of the taxes due.
The Assistant Factory Superintendent of Silver Cup, Nelson Po gave the following
testimony:

Annexes "A", "A-1 " to "A-17" show that from January to December 1970, Silver Cup
had used in production 189 drums of untaxed distilled alcohol and 3,722 drums of
untaxed distilled alcohol. Can you tell us how could this be possible with the
presence of a revenue inspector in the premises of Silver Cup during working hours?

Actually, the revenue inspector or storekeeper comes around once a week on the
average. Sometimes, when the storekeeper is around in the morning and Po Bein
Sing wants to operate with untaxed alcohol as raw materials, Po Bien Sing tells the
storekeeper to go home because the factory is not going to operate for the day.
After the storekeeper leaves, the illegal operation then begins. Untaxed alcohol is
brought in from Cebu Alcohol Plant into the compound of Silver Cup sometimes at
about 6:00 A.M. or at 12:00 noon or in the evening or even at mid-night when the
storekeeper is not around. When the storekeeper comes, he sees nothing because
untaxed alcohol is brought directly to, and stored at, a secret tunnel within the
bodega itself inside the compound of Silver Cup.

In the same vein, the factory personnel manager testified that false entries were
entered in the official register book: thus,

A As factory personnel manager and all-around handy man of Po Bien Sing, owner
of Silver Cup, these labels were entrusted to me to make the false entries in the
official register book of Silver Cup, which I did under the direction of Po Bien Sing.
(Sworn statement, p. 512, Folder II, BIR rec.) 10 (Emphasis ours)

The existence of fraud as found by the respondents can not be lightly set aside
absent substantial evidence presented by the petitioner to counteract such finding.
The findings of fact of the respondent Court of Tax Appeals are entitled to the
highest respect. 11 We do not find anything in the questioned decision that should
disturb this long-established doctrine.

WHEREFORE, the Petition is DENIED. The Decision of the respondent Court of Tax
Appeals is hereby AFFIRMED. Costs against the petitioner.

SO ORDERED.

Melencio-Herrera, Paras and Padilla, JJ., concur.

Footnotes

1
Penned by Associate Judge Alex Z. Reyes and concurred in by Presiding Judge
Amante Filler; Associate Judge Constante C. Roaquin was on leave.

Rollo, Decision, 10-13.

Id., Petition, 3; Rollo, 4.

4 Aznar vs. CTA, L-20569, August 23,1974,58 SCRA 51 9; Manila Wine Merchants vs.
Commissioner of Internal Revenue, I,26145, February 20, 1984, 127 SCRA 483; La
Suerte Cigar and Cigarette Factory vs. Court of Tax Appeals, L-36130 and Alhambra
Industries va. Court of Tax Appeals, L-36131, January 17,1985,134 SCRA 29.

*
Old rule, Section 72 of the National Internal Revenue Code otherwise known
as Commonwealth Act No. 466:

Surcharges for failure to render returns and for rendering false and fraudulent
returns.-The Commissioner of Internal Revenue shall assess all income taxes. In
case of willful neglect to file the return or list within the time prescribed by law, or in
case a false or fraudulent return or list is willingly made, the Commissioner of
Internal Revenue shall add to the tax or to the deficiency fax, in case any payment
has been made on the basis of such return before the discovery of the falsity of
fraud, a surcharge of fifty per centum of the amount of such tax or deficiency....

Now Section 248(b) of the National Internal Revenue Code of 1977 as amended:

In case of willful neglect to file the return within the period prescribed by this Code
or regulations, or in case a false or fraudulent return is willfully made, the penalty to
be imposes shall be fifty percent (50%) of the tax or of the deficiency tax, in case
any payment has been made on the basis of such return before the discovery of the
falsity or fraud.

**
Old Rule, Section 51(d) of the National Internal Revenue Code otherwise
known as Commonwealth Act No. 466:

Interest on deficiency.Interest upon the amount determined as a deficiency shall

be assessed at the same time as the deficiency and shall be paid upon notice and
demand from the Commissioner, of Internal Revenue; and shall be collected as a
part of the tax, at the rate of six per centum per annum from the date prescribed for
the payment of the tax (or, if the tax is paid in installments, from the date
prescribed for the payment of the first installment) to the date of the deficiency is
assessed: Provided, That the maximum amount that may be collected as interest on
deficiency shall in no case exceed the amount corresponding to a period of three
years, the present provisions regarding prescription to the contrary notwithstanding.

Now Section 249(a) of the National Internal Revenue Code of 1977 as amended:

In generalThere shall be assessed and collected on any unpaid amount of tax,

interest at the rate of twenty percent (20%) per annum, or such higher rate as may
be prescribed for payment until the amount is fully paid.

Rollo, 14-15.

104 Phil. 1061 (1958) Unrep., Nos. L-11534 and L-11558, November 25, 1958.

7
Commissioner of Internal Revenue vs. Construction Resources of Asia, Inc., L68230, November 25, 1986, 145 SCRA 671.

Gutierrez vs. Villegas, L-17117, July 31, 1963, 8 SCRA 527.

9
Collector of Internal Revenue vs. Bohol Land Transportation Co., L-13099 and
L-13462, April 29,1960,58 O.G. 2407.

10

Rollo, Decision, 15-16.

11
Raymundo vs. Joya, L-27733, December 3, 1980, 101 SCRA 495; Sanchez vs.
Commissioner, 102 Phil. 37 (1957); Commissioner vs. Priscilla Estate, 120 Phil. 125
(1964); Commissioner of Internal Revenue vs. Ayala Securities Corporation, L-29485,
March 31, 1976, 70 SCRA 204.

THIRD DIVISION
[G.R. No. 117873. December 22, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MERCY SANTOS

y ENTIENZA, accused-appellant.
DECISION
PANGANIBAN, J.:

Even though the extrajudicial confession is excluded for having been

extracted in violation of the Constitution, the Court holds that appellant may
nonetheless be convicted on the basis of the remaining evidence clearly
showing her liability for kidnapping. The Court also reiterates these rules: (1)
the assessment of the credibility of witnesses and their testimonies is best left
to the discretion of the trial court; and (2) bare denials cannot overturn the
positive and straightforward testimonies of witnesses who are not shown to
have any ill motive in testifying against the accused.
The Case

The foregoing summarizes the Courts ruling on this appeal from the
Decision, dated October 3, 1994, of the Regional Trial Court of Quezon City,
Branch 96, in Criminal Case No. Q-93-42733, convicting Appellant Mercy
Santos y Entienza of kidnapping.
[1]

In the Information dated March 25, 1993 filed by Assistant Quezon City
Prosecutor Medardo H. Palomaria, appellant was charged as follows:
[2]

That on or about the 8th day of March, 1993, in Quezon City, Philippines, the
abovenamed accused, conspiring, confederating with four (4) other persons whose
true names, identities, whereabouts and other personal circumstance have not yet been
ascertained and mutually helping one another, did, then and there wilfully, unlawfully
and feloniously kidnap one CHARMAINE MAMARIL, a female, a minor, 7 years of
age, represented herein by her mother, RAQUEL MAMARIL, from her school at
Kaligayahan Elementary School located at Rivera Compound, Barangay Kaligayahan,
Novaliches, Quezon City, and brought her to a house at No. 8 G Araneta Avenue, Sto.
Domingo, Quezon City, on March 13, 1993, thereby illegally detaining her for five (5)
days, to her damage and prejudice.
With the assistance of Atty. Noel Ocampo of the Public Attorneys Office,
she pleaded not guilty to the charge during the arraignment. A pre-trial
conference was conducted on June 2, 1993, but no stipulation or agreement
was arrived at. After trial, the court a quo rendered the assailed Decision, the
decretal portion of which reads:
[3]

[4]

[5]

WHEREFORE, judgment is hereby rendered finding the accused MERCY SANTOS

y ENTIENZA guilty beyond reasonable doubt of the crime of KIDNAPPING AND
SERIOUS ILLEGAL DETENTION and sentencing her to suffer reclusin perpetua; to
indemnify the victim CHARMAINE MAMARIL, her parents, and members of her
family, represented by her mother, RAQUEL MAMARIL, in the sum of Pesos: One
Hundred Thousand (P100,000.00); and to pay the costs of suit.
Hence, this appeal.

[6]

The Facts
Version of the Prosecution

The trial court narrated the facts of this case as presented by the
prosecution:
[7]

Charmaine Mamaril, a kindergarten pupil, was brought to school, the Kaligayahan

Elementary School, in Novaliches, Quezon City by her mother, Raquel Mamaril, at
noontime on March 8, 1993. Raquel left Charmaine in her classroom with her
classmates but stayed awhile, going home only after 12:30 p.m. She would be going
back for Charmaine, according to her daily routine, at 2:00 p.m. When she returned to
fetch Charmaine before 2:30 p.m., Charmaines teacher Ms. Grace Lucena, met and
asked her if the child had already reached home; Raquel replied that Charmaine did
not know the way home. She then looked for her child in school until someone
informed her that a woman had earlier fetched her daughter. She immediately reported
the matter to the police authorities stationed in Novaliches at around 3:00 p.m. and
then to the National Bureau of Investigations the next day; she also approached radio
and television stations for help. She and her family conducted their own search from
then until her daughter was finally found on March 13, 1993.
Raquel recounted how her child was recovered. According to her, a police sergeant
came to her house on March 13, 1993 and asked for her; he told her to
contact Kagawad Aida Bautista of Sto. Domingo. When contacted, Bautista informed
her that a child named Charmaine was with her; Raquel immediately went to Bautista
with some identification papers of Charmaine, and the child was turned over to her
after showing the birth certificate. This occurred on a Saturday.
Although Charmaines kidnapper was not immediately caught, the matter did not end
with the return of Charmaine to her familys bosom. Two days later, on Monday,
Bautista telephoned Raquel to tell her that the woman, a certain Mercy Santos, had
returned to her place to claim Charmaine. Raquel wasted no time notifying NBI Agent
Roel Jovenir, who, in turn and with other NBI agents, accompanied by Raquel and her
husband, proceeded to Bautistas place and arrested Santos.
Following the arrest of Santos, the kidnapping was investigated at the NBI office,
where Raquel gave her written statement.
Bautista recalled that she was at the store on No. 719 Quezon Avenue, Quezon City on
March 9, 1993 when, at around 2:00 p.m., a woman approached and asked if she
could leave her child with her; that she told the woman to just leave the child at the

bench of the store; that the woman then left the child there; that when it was already
7:00 p.m. and the woman had not yet returned, she became worried for the child and
reported the matter to the Barangay Chairman who also reported it to Eagle Base, the
base of the Barangay officials; that on March 12, 1993, she read from a newspaper
about a child who was kidnapped in Novaliches; that she immediately called up the
Novaliches police sub-station to know more about the kidnapping; that when the
childs mother later phoned her on March 13, 1993, she required the caller to bring the
birth certificate of the child for identification, that later that day, the child was
returned to her parents in the presence of Barangay Chairman Jose Valdez, the
reporter of Pinoy and a barangay tanod; that on March 15, 1993, the woman who had
left the child returned for her; that she called up the childs parents to tell them about
this; and that soon, three NBI agents, including one named Roel, came with the
parents of the child and, after talking to the woman, arrested her.
The victim, Charmaine, aged 7 years, declared that Mercy Santos took her; that she
was seated and crying in school when Mercy waved for her to draw near; that after
she approached, Mercy promised to give her a surprise if she went with her to a big
house where there were many children; that she went with Mercy and was brought to
a big house with many children; that she and Mercy slept there; that Mercy later
brought her to the store owned by Ate Tina; and that Ate Tina later brought her to a
house where she saw her daddy.
Roel Jovenir was assigned as special investigator of the Anti-Fraud and Action
Division of the NBI from April 18, 1992 to June 1, 1993, whose duties included the
conduct of surveillance, making arrests, and investigating and filing cases involving
violations of laws, like the Revised Penal Code. He testified that on March 9, 1993,
Raquel Mamaril filed her written complaint at the NBI offices against an unidentified
woman for allegedly kidnapping her daughter on March 8, 1993; that although
Raquels statement was taken only on March 15, 1993, the NBI were already
conducting their investigation and surveillance of the kidnapping incident in the
vicinity of Kaligayahan Elementary School since the filing of the complaint; that on
March 13, 1993, Raquel called to tell him about the child being under the custody of
Bautista; that he and the childs parents rushed to Bautistas place and rescued the child;
that on March 15, 1993, Raquel again called up to inform him that the suspected
kidnapper had gone back to Bautistas place to fetch the child; that in the company of
other NBI operatives, namely, Agents Arnel Azul, SPO1 Rodrigo Mapoy, and

Emeterio Armada, he proceeded to the Bautista house and waited for the suspect to
return; that they arrested the suspect upon her return and brought her to the NBI; that
the suspect was Mercy Santos; that Santos was investigated in the presence of
counsel, Atty. Gordon Uy, after she was informed of her rights under the Constitution;
that she executed and signed a statement, on the occasion of which she admitted the
kidnapping; that during the investigation by question and answer, Atty. Uy would raise
objections by cautioning Santos against answering, in which case the objection and
the question objected to were not anymore typed in the statement; and that
photographs were taken of Charmaine and the accused during the confrontation.
Version of the Defense
Appearing as the lone witness for the defense, appellant denied the
prosecutions allegations and insisted that her extrajudicial confession was
extracted in violation of her constitutional rights. The trial court related her
version of the facts, as follows:
[8]

The accused testified in her own behalf on November 24, 1993. She stated that she
was arrested by NBI Agent Jovenir on March 15, 1993 at Araneta Avenue, Talayan
Village, Quezon City, at the residence of Aida Bautista; that she was at Bautistas
house because her friend named Elsa had asked her to fetch Charmaine at that place;
that she did not know the surname of Elsa, but Elsa lived on Tops Street, Talayan; that
she had come with Elsa from Novaliches; that Elsa had left Charmaine at Bautistas
place and later requested her to fetch the child; that Elsa was a nightclub dancer whom
she had known for two years; that she was not the woman whom Bautista said had left
Charmaine at the store; that she was not able to confer with any Atty. Uy and she
might have merely signed the affidavit; that she did not know Atty. Uy; and that she
signed Exhibit C only because she was threatened by NBI Agent Rodrigo Mapoy and
was maltreated.
Ruling of the Trial Court
The trial court convicted appellant of kidnapping and serious illegal
detention. It observed that appellants identification by the victim and by
Witness Bautista was positive and unassailable. Their testimonies were
straightforward and unhesitating, especially in their identification of the

appellant as the kidnapper. The evidence on appellants direct and personal

participation in the crime was absolutely credible, trustworthy and sincere.
The trial court rejected appellants explanation that she was merely
fetching the victim upon her friends request. It was incredible that her friend
would refuse to testify on her behalf, if this allegation were true, considering
the gravity of the charge leveled against her.
Besides, the trial court considered her extrajudicial confession more than
sufficient evidence of her guilt. Such confession was declared as competent
evidence against her, despite her denials of having given it and her claims of
duress and intimidation. Its voluntariness was sufficiently proven, as it was
given after she was apprised of her constitutional rights with the assistance of
her counsel of choice, a certain Atty. Gordon Uy. Her subsequent retraction
during the trial was rejected as a flimsy machination to extricate herself from
criminal liability.
The Issues
The appellant assigns the following errors against the trial court:

[9]

The trial court gravely erred in giving full weight and credence to the incredible,
unworthy and unreliable testimonies of the prosecution witnesses and in disregarding
the theory of the defense.
II

The trial court gravely erred in not giving credence to the defense of denial raised by
the accused Mercy Santos.
III

The trial court gravely erred in admitting in evidence the extra-judicial confession of
the accused despite the fact that it was elicited in violation of the exclusionary rule on
evidence.
IV

The trial court gravely erred in convicting the accused-appellant despite failure of the
prosecution to prove his (sic) guilt beyond reasonable doubt.
For clarity and convenience, the Court will tackle the issues in the
following order: (1) admissibility of the extrajudicial confession, (2) credibility
of witnesses and appellants denial, and (3) sufficiency of evidence.
The Courts Ruling
The Court rejects the appeal. Although the extrajudicial confession is
inadmissible in evidence, there are, apart from said confession, other credible
and competent pieces of evidence to establish her guilt beyond reasonable
doubt.
First Issue: Extrajudicial Confession Inadmissible
A confession is not admissible in evidence unless the prosecution
satisfactorily shows that it was obtained within the limits imposed by the 1987
Constitution. Section 12, Article III thereof, provides:
(1) Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be waived except in
writing and in the presence of counsel.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or section 17 hereof shall
be inadmissible in evidence against him.

If the extrajudicial confession satisfies these constitutional standards, it is

subsequently tested for voluntariness, i.e., if it was given freely -- without
coercion, intimidation, inducement, or false promises; and credibility, i.e., if it
was consistent with the normal experience of mankind.
[10]

[11]

A confession that meets all the foregoing requisites constitutes evidence of

a high order because no person of normal mind will knowingly and
deliberately confess to be the perpetrator of a crime unless prompted by truth

and conscience. Otherwise, it is disregarded in accordance with the cold

objectivity of the exclusionary rule. Consequently, the burden of evidence to
show that it was obtained through undue pressure, threat or intimidation shifts
to the accused.
[12]

[13]

As proof of alleged compliance with the constitutional standards, the

extrajudicial confession contains the following statements:
01. TANONG: Bb. MERCY SANTOS Y ENTIENZA, ikaw ay iimbesigahan namin sa
pagkakasangkot mo sa kasong kidnapping, bago kami magpatuloy sa pagsisiyasat
na ito ay nais naming ipaalam sa iyo and iyong mga karapatan sa ilalim ng ating
Saligang Batas. Ikaw ay may karapatang manahimik at di magpahayag ng
anumang salaysay kung nais mo, naiintindihan mo ba ito?
SAGOT: Opo sir.
02. T: Ikaw ay mayroon ding karapatan na kumuha at tulungan ng isang abogado na
pili mo upang umasiste sa iyo sa pagsisiyasat na ito. Kung hindi mo naman
kayang bumayad ng serbisyo ng isang abogado ay ikaw ay bibigyan namin ng isa
na siyang tutulong sa iyo sa pagsisiyasat na ito ng walang bayad, naiintindihan mo
ba ito?
S: Opo sir.
03. T: Ngayon, ikaw ba ay mayroong abogado na sarili mong pili para tumulong sa iyo
sa pagsisiyasat na ito?
S: Opo sir, Nandito ang aking abogado si ATTY. GORDON UY na siyang tutulong sa
akin sa pagsisiyasat na ito. [14]

These questions and the corresponding responses thereto are insufficient

proof of compliance with the constitutional requirements. They are terse and
perfunctory statements which do not evince a clear and sufficient effort to
inform and explain to appellant her constitutional rights, much less satisfy the
constitutional prerequisites. The right of a person under custodial investigation
to be informed of his rights entails an effective communication that results in
an understanding thereof. Any effort falling short of this standard is a denial of
this right.
[15]

Furthermore, in People vs. Deniega, the Court disbelieved the

typewritten statements in the extrajudicial confessions to the effect that the
[16]

accused was properly apprised of his constitutional rights, in view of the

glaring inconsistencies in said documents and the token participation therein
by the lawyers assigned to the accused. The Court declared:
[17]

The desired role of counsel in the process of custodial investigation is rendered

meaningless if the lawyer merely gives perfunctory advice as opposed to a meaningful
advocacy of the rights of the person undergoing questioning. If the advice given is so
cursory as to be useless, voluntariness is impaired. If the lawyers role is reduced to
being that of a mere witness to the signing of a pre-prepared document albeit
indicating therein compliance with the accuseds constitutional rights, the
constitutional standard guaranteed by Article III, Section 12(1) is not met. The process
above-described fulfills the prophylactic purpose of the constitutional provision by
avoiding the pernicious practice of extorting false or coerced admissions or
confessions from the lips of the person undergoing interrogation for the commission
of the offense and ensuring that the accuseds waiver if his right to self incrimination
during the investigation is an informed one in all aspects.
Thus, the trial court erred in admitting appellants extrajudicial confession
without showing that Atty. Gordon Uy was indeed the competent and
independent counsel of appellants own choosing. The Court notes appellants
insistent and persistent disavowals of knowing said Atty. Uy, much less of
retaining him as her counsel of choice. The prosecution, for unexplained
reasons, failed to present Uy as a witness to show his role in the taking of the
alleged confession.
In view of such default, the Court disagrees with this holding of the trial
court:
The circumstances of the investigation, to begin with determine the compliance with
the right to counsel provision. Where, as in the instant case, the accused is shown to
have accepted the representation and assistance of the counsel during the
investigation, he may not easily subsequently retract acceptance and disavow counsel
during the trial on the flimsy excuse that counsel was not an acquaintance. xxxx
xxxxxxxxx

The accused need not expressly assent to the representation and assistance of her
counsel. Her acquiescence sufficed. xxxx
The accused should further be instructed that her failure to object to the representation
and assistance of Atty. Uy as her counsel has precluded her from complaining. She
could have easily objected at any time but apparently did not. For her to assert now
that she could not have done so or that she was not enabled to do so is not credible, it
being shown satisfactorily in the records that she was far from prevented during the
investigation from doing so. xxx. (Emphases found in the original.)
[18]

No presumption of constitutionality may be accorded any extrajudicial

confession until the prosecution convincingly establishes the regularity of its
taking and its compliance with the Constitution. This is the price the
prosecution has to pay before it can be allowed to use such formidable
evidence against the accused.
Therefore, the trial court had no basis for ruling that Atty. Uy rendered
independent and competent assistance to her as her counsel of choice during
the investigation. The extrajudicial confession must be struck down as
inadmissible in evidence for failure of the prosecution to establish observance
of appellants constitutional rights during custodial investigation. Specifically,
the prosecution failed to show that appellant was, at that time, assisted by
competent and independent counsel preferably of her own choice.
Second Issue: Credibility of Witnesses vs. Denial
The Court is not persuaded by appellants posturing that Witness Bautistas
testimony is unworthy of credence for being of doubtful veracity. The defense
insists that Bautista and appellant met for the first time at the formers house
and harps on the fact that appellant, who was not even informed of Bautistas
address, went to said house only upon the request of appellants friend,
Elsa. Further, the defense brands as illogical appellants act of leaving her
victim at the hands of a third person, considering that the prosecution depicted
her in the extrajudicial confession as a seasoned kidnapper. Returning to
Bautistas house to regain custody of the victim, which was practically
surrendering herself to the authorities, would have been the last thing a
seasoned kidnapper would do, appellant contends.

These arguments do not persuade us. They are mere denials which
become sterile in comparison with the firm and clear declarations of Bautista,
who identified appellant as the person who left Charmaine with her and who
fetched the child days after. The trial court correctly held that appellants
uncorroborated denial was a negative assertion that was inferior to the
positive declarations of the prosecution witnesses. Besides, there appears to
be no ill motive for Bautista and the victim to accuse appellant of such a grave
crime, if the same were not true. Thus, the trial court properly lent credence to
their testimony. All in all, this Court has not been given sufficient reason to
deviate from the time-honored rule that the assessment of the credibility of
witnesses and their testimonies is best left to the discretion of the trial judge.
[19]

[20]

Third Issue: Sufficient Evidence for Conviction

The prosecution has established the elements of kidnapping under Article
267, paragraph 4 of the Revised Penal Code, namely: (1) the offender is a
private individual; (2) he kidnaps or detains another, or in any other manner
deprives the latter of his or her liberty; (3) the act of detention or kidnapping is
illegal; and (4) the person kidnapped or detained is a minor, female or a public
officer.
[21]

The prosecution proved that appellant was not a public officer; that she
took the victim from the Kaligayahan Elementary School in Novaliches without
the knowledge and consent, and against the wishes of her parents; and that
the victim was a minor, having been only seven years old at the time.
The element of deprivation of liberty and the identity of her abductor are
clearly established in the victims testimony:
[22]

"Q. On March 8, 1993, can you recall if you went to school?

A. Yes, sir.
Q. Can you remember if there is anything that happened to you on that day?
A. Yes, sir.
Q. What was that which happened to you?

A. She took me, sir.

Q. When you said she took me, whom are you referring to?
A. Mercy Santos, sir.
Q. If Mercy Santos is in court, can you point her out?
A. Yes, sir. (witness pointing to a person seated on the second bench)

xxx xxx xxx

Pros. Bringas:
Now, Charmaine you stated awhile ago that Mercy Santos took you, how was she
able to get you, when Marcy Santos took you, how did she do it?
A. I was left in a store to a certain Mrs...

xxx xxx xxx

Q. From what place did Mercy get you?
A. At the school sir.
Q. How was she able to get you? I am withdrawing the question. Do you know Mercy
previous to that day?
A. Yes, sir.
Q. How did you know her?
A. When I met her at a big house I cried and a man whipped me with a piece of rope.
Q. Before Mercy took you from your school, where was she?
A. This Mercy was standing while I was seated and crying.
Q. Did Mercy call you?
A. Yes, sir.
Q. Why did she call you?
A. She waved me over to go to her.

Q. Did you go to her?

A. Yes, sir she told me there is a surprise for me.
Q. Do you know the reason why there was a surprise for you?
A. Yes, sir.
Q. What was the reason?
A. She told me that she will bring me to a big house were [sic] there were many
children?

xxxx xxx xxx

Q. After you went there, where else did you go, if any?
A. When I was brought to the big house, Mercy and I are and then I slept then after
sleeping, I was brought to the store." [sic]

The fact that the victim initially agreed to go with appellant does not
remove the element of deprivation of liberty because the victim went with her
on false inducement, without which the victim would not have done
so. Besides, the minor was distraught because her mother was late in fetching
her from school, and she did not know the way to her house. It must have
been a comfort to her that a grown-up who could bring her home asked about
her situation. As the trial court said:
[23]

The crime committed is of the most serious nature, involving a defenseless minor of
seven years of age whom the accused enticed with her promise of a gift. The accused
thereby deprived the child of her personal liberty and endangered her life. In addition,
the child was forcibly taken away from the midst of her family, causing to them,
particularly her parents, much pain, anxiety, anger, and wounded feelings in
them. That the minor was subsequently saved from the clutches of the accused and of
her cohorts did not diminish a bit the criminal and civil responsibility of the accused,
for, even if the deliverance of the victim was due to the overconfidence of the
accused, her degree of criminality still evinced her high malevolence and abject
disregard of the rights and safety of the child. xxx.

The victim was actually locked up inside what she referred to as the big
house. Although her detention there lasted only one night, the trial court held
that the victim was actually deprived of her liberty for five days, including the
four-day period when she was already in the custody of Bautista. It must be
stressed that appellant was charged and convicted under Article 267,
paragraph 4 of the Revised Penal Code. Under this provision, it is not the
duration of deprivation of liberty which is important, but the fact that the victim,
a minor, was locked up. Furthermore, it bears emphasis that appellant did not
merely take Charmaine to the big house against her will; she in fact detained
Charmaine and deprived her of her liberty. The Spanish version of Article
267 of the Revised Penal Code uses the terms lockup (encerrar) rather than
kidnap (secuestrar or raptar).Lockup is included in the broader term detention,
which refers not only to the placing of a person in an enclosure which he
cannot leave, but also to any other deprivation of liberty. To repeat, the
prosecution clearly established lockup in this case.
[24]

[25]

Damages
The trial court awarded one hundred thousand pesos as moral damages in
favor of the victim and her parents. This is contrary to the Courts consistent
holding that the grant of moral damages requires factual basis. The records
are bereft of any evidence that the victim and her parents ever claimed moral
damages, or that they were entitled to such an award.
[26]

WHEREFORE, the assailed Decision is hereby AFFIRMED but the award

of moral damages is DELETED for want of evidence.
SO ORDERED.