LCA LINES | Volume III, Issue No. 4

8/12/2019 LCA LINES | Volume III, Issue No. 4

1/14

BIR ISSUANCES

APRIL-MAY 2010VOLUME III, ISSUE No. 4

L C AL C AL C A

LINESLINESLINES

Inside this issue:

BIR issuances 2

Implementingrules and reg-ulations REITAct of 2009

7

A.M. No. 09-6-8-SC: Rulesof Procedurefor Environ-mental Cases

7

Jurisprudence 8

not prevent the use of

the indirect method ofproof. The Revenue Officercan still look beyond theself-serving declarationin the taxpayers booksand records and use anyevidence available to con-travene their accuracy. Inthis connection, the provi-sions of Revenue Adminis-trative Memorandum OrderNo. 1-2000 shall be fol-lowed. The BIR shall relyon Revenue Memorandum

Circular No. 23-2000 inmaking deficiency tax as-sessments based on theBest Evidence Obtaina-ble. Furthermore, Section6 (c) of the National Inter-nal Revenue Code allowsthe BIR to prescribe theminimum taxable base forwhich internal revenue tax-es shall be determined.

The National InvestigationDivision (NID) shall verify

the existence of a taxpay-ers high value assets and/or conspicuous spendingby accessing the records ofappropriate governmentand private entities, suchas but not limited to thefollowing:

a. Land Transportation Of-fice

b. Bureau of Immigration

c. Airline and shippingcompaniesd. Maritime Industry Au-thoritye. Civil and AeronauticsBoardf. Manila Electric Companyg. Land Registration Au-thorityh. Registries of Deedsi. Resorts, membershipclubs, or similar establish-mentsj. Homeowners associa-

tionsk. Real estate developmentcompaniesl. Credit card companiesm. Statement of Assets,Liabilities, and Net worthand/or Amnesty Returnsfiled under Republic Act9480

The Assistant Commis-sioner, Enforcement Ser-vice (ACIR, ES) shallestablish linkages with

various agencies for au-thority to secure infor-mation/documents on in-dividual. He shall also ac-cess the BIRs IntegratedTax System (ITS) for infor-mation on the taxpayersuch as:

a. Taxpayers IdentificationNumber

REVENUE MEMORAN-

DUM ORDER NO. 19-2010

RMO 19-2010 prescribesthe policies and guidelinesin the conduct of investi-gations relative to theTaxpayers Lifestyle CheckSystem (TLCS) to properlydetermine tax compliance ofindividuals.

An individuals taxableincome may be estab-

lished by using directevidence, whenever availa-ble. Indirect methods canbe used, however, when oneor more of the followingconditions, among others,prevail:

a. The taxpayer maintainsno books and records.b. The taxpayers books andrecords are not available.c. The taxpayers books andrecords are inadequate.

d. The taxpayer withholdsbooks and records from in-vestigation/verification byauthorized Revenue Offic-ers.

The fact that the taxpay-ers books and recordsreflect the figures on theincome and business taxreturns, however, does


2/14


3/14

CAR is a replacementCAR.

A replacement CAR shallbe valid for one (1)year from its date ofissuance as indicated inthe said CAR. Moreover,the applicable infor-mation pertaining to thereplacement CAR mustbe properly annotated onthe reverse side of allcopies of the correspond-ing document of transfer,and reference to the re-

placement CAR shall beindicated on the expiredCAR.

REVENUE MEMORAN-DUM ORDER NO. 26-

2010

RMO No. 26-2010 pre-scribes the policies andprocedures in the prep-aration of the List of

Assets by the RevenueOfficer (RO) for casesunder investigation/verification and its incor-poration in the DataWarehouse.

In addition to the re-porting requirements tobe prepared and/orsubmitted in the audit/verification of internalrevenue tax liabilitiesunder a Letter of Au-

thority (LA) or Tax Ver-ification Notice (TVN),the RO shall determineall the assets of ataxpayer being investi-gated, such as type ofassets, location of theassets, bank accountsmaintained, etc., andsecure pertinent infor-

mation thereof.

The List of Assets,business and personal,domestic and foreign,prescribed under BIRForm No. 0804 shall beencoded b y the RO with-in one (1) month fromthe date of service of theLA/TVN to the taxpayerfollowing the proce-dures to be prescribedby the Deputy Commis-sioner-Information Sys-tems Group (ISG). The

Deputy Commissioner-ISG shall develop thefacility to allow theviewing of informationon assets of taxpayersfor use in the collec-tion enforcement pro-ceedings, if warranted.

REVENUE MEMORAN-DUM ORDER NO. 27-

2010

RMO No. 27-2010 pre-scribes the enhancedpolicies and guidelines tore-invigorate the RunAfter Tax Evaders (RATE)Program.

The Bureau of InternalRevenue (BIR), throughthe National Investiga-tion Division (NID)/Special Investigation

Divisions (SIDs) shallcoordinate with theconcerned governmentagencies, such as, butnot limited, to the De-partment of Justice, Na-tional Bureau of Investi-gation, Criminal Investi-gation and DetectionGroup, and other enti-

Page 3VOLUME III, ISSUE No. 4

BIR ISSUANCES

date of issuance withinwhich to present the CARto the concerned Regis-ter of Deeds.

New returns and proofof tax payments shallbe needed to producea new CAR. To replacean expired CAR, the fol-lowing documents arerequired:

a. A written request forthe issuance of a newCAR, to be filed with

the concerned RevenueDistrict Office (RDO) orBIR office authorizedto issue CARs underexisting rules and regu-lations;b. The original and dupli-cate copies of the ex-pired CAR;c. The original copy ofthe document of sale,exchange or transfer(e.g. Deed of Sale,Deed of Assignment,

Deed of Donation,Deed of ExtrajudicialSettlement of Estate,etc.); andd. Photocopies of theproof of tax payment(s)previously made, or aCertification issued bythe BIRs Revenue Ac-counting Division indicat-ing therein the type oftax(es) paid, the date ofpayment and the amountpaid.

The following informationshall be indicated on theface of the replacementCAR:a. The serial number ofthe expired CAR and itsoriginal date of issuance;andb. A statement that the


4/14

Page 4 L C A LINES

ties, in the development,investigation and prose-cution of RATE cases,

and in preventing theconcealment/disposal/transfer of assets bytaxpayer being investi-gated under the RATEProgram. The TaxpayerLifestyle Check System,among others, shall beused in the developmentof RATE cases.

The Revenue District Of-fices (RDOs), the LargeTaxpayers Service (LTS)

and its District Officesand Divisions shall actimmediately in all re-quests from the NIDor the SIDs for infor-mation needed to vali-date or develop RATEcases. Failure of anRDO/LTS District Officeor Division to providethe requested infor-mation within 15 work-ing days from receiptof a request for infor-

mation shall be consid-ered as sufficientgrounds for the impo-sition of administratived isc ip l inary ac t ionagainst the concernedoffice.

In all RATE cases, a pre-liminary investigationmust first be conductedto establish prima facieevidence of fraud ortax evasion. Such

investigation shall in-clude the verificationand determination ofthe schemes employedand the extent offraud perpetrated bythe subject taxpayer.

In the event that, fol-lowing the conduct ofthe required prelimi-

nary investigation, theNID/SIDs should deter-mine that there is pri-

ma facie evidence oftax fraud, it shall sub-mit the case, togetherwith a memorandumjustifying the issuanceof a Letter of Authority(LA) to the DeputyCommissioner Legaland Inspection Group(DCIR-LIG), throughthe Assistant Commis-sioner (Enforcement Ser-vice)/concerned Region-al Director, for evalua-

tion. If the DCIR-LIGfinds a request merito-rious, the docket of thecase, together with thememorandum-requestbearing the concur-rence of the DCIR-LIG,shall be forwarded tothe Commissioner ofInternal Revenue (CIR),for final review and ap-proval.

The DCIR-LIG shall

likewise conduct theappropriate verificationwith the Letter of Au-thority Monitoring Sys-tem (LAMS) to ascertainwhether an LA for a tax-payer for a particulartaxable year has alreadybeen issued to the con-cerned taxpayer. In theevent that it is ascer-tained that no LA hasbeen previously issuedagainst the concerned

taxpayer, a printout ofthe LAMS search resultsmust be included in thedocket of the case tosupport the issuance ofthe requested LA.

If, however, it is dis-closed that an LA waspreviously issued to theconcerned taxpayer, and

that the correspondinginvestigation has al-ready been commenced

or concluded, the DCIR-LIG shall include inthe request for issu-ance of an LA to theCIR a recommendationand justification for there-assignment to, or re-opening of the investi-gation by the NID/SID concerned.

In the event that theCIR should rule in fa-vor of the re-

assignment to/re-opening of the tax in-vestigation by the NID/SID, the DCIR-LIGshall inform the RDO/LT District Office orDivision concerned,thru the Regional Di-rector/Assistant Com-missioner LTS, ofthe decision of theCommissioner, and re-quire the transmittal ofthe docket of the case

to the NID/SID, as wellas the cancellation ofthe existing LA. Shouldthe Commissioner ap-prove a request forissuance of an LA, suchapproval will be commu-nicated to the DCIR-LIGfor the preparation andissuance of the request-ed LA by the latter. AllLAs issued for RATE cas-es shall be signed bythe DCIR-LIG.

The issuance of LAsshall cover only thetaxable year(s) for whichprima facie evidence oftax fraud, or of viola-tions of the Tax Code,was establ ishedthrough the appropriatepreliminary investiga-tion, unless the inves-

tigation of prior orsubsequent years isnecessary in order to:

Determine or tracecontinuing transactionsentered into in thecovered year and con-cluded thereafter, orthose transactions con-cluded in the coveredyear that were com-menced in prior years; orEstablish that the samescheme was utilized forprior or subsequentyears.

The formal investiga-tion of a RATE case,including the examina-tion of the taxpayersbooks of accounts, ac-counting records andthird-party recordsthrough the issuanceof LAs and/or accessletters (if warranted),shall be commenced onlyafter prima facie evi-dence of fraud or tax

evasion has been es-tablished. In caseswhere the quantum ofevidence gathered isnot sufficient to proveguilt beyond reasonabledoubt, and as such doesnot warrant the institu-tion of criminal proceed-ings against the con-cerned taxpayer, butthere exists clear andconvincing evidence thatfraud has been com-

mitted, a 50% sur-charge shall be im-posed on the taxpayer,together with the defi-ciency tax assessment.

Following the conclusionof the formal investiga-tion, the NID/SID shallrefer the RATE case, to-gether with the complete


5/14

Page 5 L C A LINES

21-2010

RMC No. 21-2010 reiter-ates the applicable pen-alties for employerswho fail to withholdand remit taxes, do theyear-end adjustment andrefund employees of theexcess withholding taxeson compensation, in-cluding those who under-withheld taxes and un-der-remitted the totalamount of taxes with-held from employees.

The applicable penaltiesfor non-compliance withthe existing tax lawsand regulations relativeto withholding are thefollowing:a. Additions to the taxin the form of penaltiesor interest per Sec-tions 248, 249, 251 and252 under Title X, Chap-ter I of the Tax Code, asamended

b. Criminal liabilities inthe form of fine or im-prisonment or both per Sections 255, 256,272 and 275 under TitleX, Chapter II, III & IV ofthe Tax Code, as amend-ed

In certain instances, asprovided under RevenueMemorandum Order No.19-2007, a compromisepenalty in lieu of criminal

liability may be imposedand collected.

REVENUE MEMORAN-DUM CIRCULAR NO.

22-2010

RMC 22-2010 publishesthe full text of RepublicAct No. 10001 entitled

An Act Reducing theTaxes on Life Insur-ance Policies, Amend-ing for this PurposeSections 123 and 183of the National Inter-nal Revenue Code(NIRC) of 1997, asAmended.

Section 123 of theNIRC of 1997, asamended, is herebyfurther amended toread as follows:Sec. 123. Tax on Life

Insurance Premiums.There shall be collectedfrom every person,company or corpora-tion (except purelycooperative companiesor associations) doinglife insurance businessof an y sort in the Phil-ippines a tax of twopercent (2%) of thetotal premium collect-ed, whether such pre-miums are paid in

money, notes, creditsor any substitute formoney; but premiumsrefunded within six (6)months after paymenton account of rejectionof risk or returned forother reason to a per-son insured shall notbe included in the tax-able receipts; nor shallany tax be paid uponreinsurance by a com-pany that has already

paid the tax; nor uponpremiums collected orreceived by anybranch of a domesticcorporation, firm orassociation doing busi-ness outside the Philip-pines on account ofany life insurance of theinsured who is a non-resident, if any tax

report at least three(3) cases per quarterthat have been submit-ted by the concernedRegional Legal Divisionto the DCIR-LIG, forprosecution.

The DCIR-LIG shallforward all RATE casesrecommended for crim-inal prosecution, togeth-er with the corre-sponding CAs and RLsto the Office of theCommissioner, for final

review, approval andsignature. The prosecu-tion of RATE casesdeveloped and investi-gated by the NID shallbe carried out by the NO-RATE Team, while theprosecution of RATE cas-es from the SIDs shall beaccomplished by theLegal Divisions. All crim-inal prosecution pro-ceedings for RATE casesshall be executed in co-

ordination with the De-partment of Justice.

The Commissioner orany other authorizedofficer shall issue theWarrants of Distraintand/or Levy/Warrants ofGarnishment in order toprotect the interest ofthe government over thetax liabilities of a taxpay-er undergoing a RATEprosecution.

All internal revenue tax-es collected as a result ofa RATE investigationshall be credited to theRDO or LT District Of-fice/Division havingregular jurisdiction overthe concerned taxpayer.REVENUE MEMORAN-DUM CIRCULAR NO.

set of supporting docu-ments to the NationalOffice (NO) RATE Team/Legal Division, for eval-uation and appropriateaction. In the event thatthe NO-RATE Team/Legal Division shoulddetermine that a par-ticular RATE case isinsufficient in form andsubstance, it shall re-turn the case to theNID/SID, for furtherinvestigation, specifyingthe points or aspects

that must be en-hanced and/or theadditional supportingdocuments and infor-mation that is neededto strengthen the case.

However, if a RATEcase is found to besufficient in form andsubstance, the NO-RATE Team shall pre-pare the appropriateComplaint Affidavit

(CA) and Referral Let-ter (RL), and forwardthe same, togetherwith the docket ofthe case, to the DCIR-LIG, through the En-forcement Service, forreview and evaluation.The Legal Division,shall prepare the CAand RL and transmitthe docket of thecase to the DCIR-LIG,through the concerned

Regional Director, forreview and evaluation.

The NID must be ableto report at least two(2) cases per monththat have been submit-ted by the NO-RATETeam to the DCIR-LIG,for prosecution. EachSID must be able to


6/14


on such premium isimposed by the foreigncountry where thebranch is establishednor upon premiums col-lected or received onaccount of any reinsur-ance, if the insured, incase of personal insur-ance, resides outsidethe Philippines, if any taxon such premiums is im-posed by the foreigncountry where the origi-nal insurance has beenissued or perfected;

nor upon that portionof the premiums col-lected or received b ythe insurance compa-nies on variable con-tracts, in excess of theamounts necessary toinsure the lives of thevariable contract owners.

Cooperative companiesor associations aresuch as are conductedby the members there-

of with the moneycollected from amongthemselves and solelyfor their own protectionand not for profit.

The new rate of twopercent (2%) shall ap-ply only to insurancepolicies that will beissued after the effectivi-ty of this Act: Provided,however, That insur-ance policies taken out

before the effectivity ofthis Act but the premi-ums are not yet fullypaid, the new rate oftwo percent (2%) shallbe applied to the re-maining balance and forthe remaining years.

Section 183 of theNIRC of 1997, as

amended, now stipu-lates that on all poli-cies of insurance orother instruments bywhatever name thesame may be called,whereby any insuranceshall be made or re-newed upon any life orlives, there shall be col-lected a one-time Docu-mentary Stamp Tax atthe 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 sPhp100,000.00 but doesn o t e x c e e dP h p 3 0 0 , 0 0 0 . 0 0Php10.00

If the amount of insur-a n c e e x c e e d sPhp300,000.00 but doesn o t e x c e e dP 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 sPhp500,000.00 but doesn o t e x c e e dP h p 7 5 0 , 0 0 0 . 0 0Php50.00

If the amount of insur-a n c e e x c e e d sPhp750,000.00 but doesn o t e x c e e dP 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 sP h p 1 , 0 0 0 , 0 0 0 . 0 0Php100.00

Five (5) years after theeffectivity of this Code,no tax on life insurancepremium shall be col-

lected: Provided, fur-ther, That on the saiddate, all policies ofinsurance or other in-struments by whatevername the same shall becalled whereby an y in-surance shall be madeupon any life or livesshall be exempt from theDocumentary Stamp Tax.


23-2010

RMC No. 23-2010 pub-lishes the full text of Re-public Act (RA) No. 9999entitled An Act Provid-ing a Mechanism forFree Legal Assistanceand For Other Purposes.

The said RA guaranteesthe provision of free le-gal assistance to thepoor and ensures that

every person who can-not afford the servicesof a counsel is provid-ed with a competentand independent coun-sel preferably of his/herown choice, if upondetermination it appearsthat the party cannotafford the services of acounsel, and that theservices of a counselare necessary to securethe ends of justice and

protect the rights of theparty.

For purposes of availingthe benefits and servicesunder the RA, a lawyeror professional partner-ship shall secure a certi-fication from the PublicAttorneys Office (PAO),the Department of Jus-

tice (DOJ) or accreditedassociation of the Su-preme Court indicatingthat the said legal ser-vices to be providedare within the servicesdefined by the SupremeCourt, and that theagencies cannot providethe legal services to beprovided by the privatecounsel.

In determining the num-ber of hours actuallyprovided by the lawyer

and/or professional firmin the provision of legalservices, the associationand/or organization dulyaccredited by the Su-preme Court shall issuethe necessary certifica-tion that said legal ser-vices were actually un-dertaken, which shall besubmitted to the BIR forpurposes of availing taxdeductions.

A lawyer or professionalpartnerships renderingactual free legal ser-vices, shall be entitledto an allowable deduc-tion from the grossincome, the amountthat could have beencollected for the actualfree legal services ren-dered or up to 10% ofthe gross income de-rived from the actualperformance 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 minimum60-hour mandatory legalaid services rendered toindigent litigants as re-quired under the Ruleon Mandatory Legal Aid


7/14

Service for PracticingLawyers, under BARMatter No. 2012, issuedby the Supreme Court.


24-2010

RMC No. 24-2010 defersuntil June 30, 2010 theimplementation of Reve-nue Regulations No. 7-2009 relative to the Elec-tronic DocumentaryStamp Tax (eDST) Sys-

Page 7 LCA LINES

ers who cannot as yetcomply with the require-ments of said system areadvised to adopt the

Constructive Stamping/Receipt System (CS/RS) of DocumentaryStamp Tax providedunder Revenue Memo-randum Circular No. 1-2010.

tem.

After the said date, nofurther request for de-

ferment on the manda-tory use of the saidsystem shall be enter-tained.

During the interim pe-riod of suspension,taxpayers who are al-ready technically capa-ble to use the eDSTSystem may voluntarilyavail of the same.However, those taxpay-

IMPLEMENTING RULESAND REGULATIONS OFTHE REAL ESTATE IN-

VESTMENT TRUST(REIT) ACT OF 2009

FEATURES

The Implementing Rules

and Regulations of RA9856 shall make way forthe full implementation ofthe The Real Estate In-vestment Trust (REIT) Actof 2009 which seeks topromote the developmentof capital market and de-mocratize wealth bybroadening the participa-tion of Filipinos in theownership of real estatecompanies in the Philip-pines. The REIT law also

aims to use the capitalmarket as an instrumentto help finance and devel-op infrastructure projectsand protect the investingpublic.

With a minimum capitali-zation of P300 million, aREIT company may applyfor registration of its se-

curities with the SEC andavail of incentives asprovided for by the law,such as favorable taxrates and lowered fees.On the side of the inves-tor, shareholders will beassured of steady in-come flow with the lawrequiring REIT compa-

nies to declare annuallyat least 90 percent of itsdistributable income asdividends 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%20April%2015%202010.pdf

A.M. No. 09-6-8-SCRULES OF PROCEDUREFOR ENVIRONMENTAL

CASES

FEATURES

The Supreme Court

promulgated the Rules ofProcedure for Environ-mental Cases (Rules)which will serve as a cat-alyst in support ofsweeping and far-reaching reforms in envi-ronmental litigation andprotection. The Rulesare the first of its kind in

the world.

Highlights of the Rulesinclude provisions on:(1) citizen suits, (2)consent decree, (3)environmental protec-tion order, (4) writ ofkalikasan, (5) writ ofcontinuing mandamus,(6)strategic lawsuitsagainst public partici-pation (SLAPP)and (7)the precautionary

principle.

To further encourage theprotection of the envi-ronment, the Rules ena-ble litigants enforcingenvironmental rights tofile their cases as citizensuits. As a proceduraldevice, citizen suits per-mit deferred of payment

of filing fees until afterthe judgment

Writ of Kalikasanitis available to a naturalor 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 behalfof persons whose con-stitutional right to a bal-anced and healthfulecology is violated, orthreatened with viola-tion by an unlawful actor omission of a publicofficial or employee, orprivate individual orentity, involving envi-

ronmental damage ofsuch magnitude as toprejudice the life, healthor property of inhabit-ants in two or more cit-ies or provinces. Thepetition for the issuanceof a writ of kalikasancan be filed with theSupreme Court or withany of the stations of
http://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdfhttp://www.sec.gov.ph/irr-reit-act/REIT%20IRR%20clean%20draft%20as%20of%20April%2015%202010.pdf


8/14


the Court of Appeals.

Writ of ContinuingMandamus integratesthe ruling in ConcernedResidents of Manila Bayv. MMDA G.R. Nos.171947-48, December8, 2008) and the exist-ing rule on the issuanceof the writ of manda-mus. The writ of con-tinuing Mandamus maybe availed of to compelthe performance of anact specifically enjoinedby law. It permits the

court to retain jurisdictionafter judgment in order toensure the successful im-plementation of the reliefsmandated under thecourt's decision. For thispurpose, the court maycompel the submission ofcompliance reports fromthe respondent govern-ment agencies as well asavail of other means tomonitor compliance withits decision. Both peti-tions for the issuance ofthe writs of kalikasan andmandamus are exempt

from the payment ofdocket fees.

Another significant aspectof the Rules is the Precau-tionary Principleit findsdirect application in theevaluation of evidence incases before the courts.The precautionary princi-ple bridges the gap incases where scientific cer-tainty in factual findingscannot be achieved. Byapplying the precaution-ary principle, the courtmay construe a set of

facts as warranting eitherjudicial action or inaction,with the goal of preserv-ing and protecting theenvironment.

To see the full text,please visit: http://s c . j u d i c i a r y . g o 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-

TOYAG.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
http://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdfhttp://sc.judiciary.gov.ph/Environmental_Annotation.pdf


9/14

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 LEONITOACUZAR

vs.APRONIANO JOROLAN

and HON. EDUARDOAPRESA, PEOPLES

LAW ENFORCEMENTBOARD (PLEB) Chair-man, New Corella, Da-

vao del NorteG.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

Orderwith 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.


Azucar was denied due

process by the PLEB.

RULING: A z u c a rwas 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 LINESPage 9


10/14

TECHNOL EIGHT PHIL-IPPINES CORPORA-

TION

vs.NATIONAL LABOR RE-

LATIONS COMMISSIONAND DENNIS AMULAR

G.R. No. 187605

April 13, 2010FACTS: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.


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


11/14

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 to2002; 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. ASISTIOvs.

HON. THELMA CAN-LAS TRINIDAD-PE

AGUIRRE, PresidingJudge,

Regional Trial Court,Caloocan City, Branch129; HON. ARTHUR O.

MALABAGUIO, Pre-siding Judge, Metro-politan Trial Court,

Caloocan City, Branch52; ENRICO R.

ECHIVERRI,Board of Election In-spectors of Precinct

1811A,Barangay 15,

Caloocan City; andthe CITY ELECTION

OFFICER,Caloocan City

G.R. No. 191124 April27, 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


12/14


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 ofAppeal 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 ofappeal 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 adherenceto 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


13/14

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) thata 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 LINESPage 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-

rangay15, Caloocan City.


14/14

VOLUME III, ISSUE No. 4 Page 14

Volume III Issue 4

April-May 2010

LAGUNDI-CARONAN AND ASSOCIATES

JLsCORNER

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.

Date post:	03-Jun-2018
Category:	Documents
Upload:	howard-chan
View:	219 times
Download:	0 times

LCA LINES | Volume III, Issue No. 4

Documents