De Lima mum on ‘deal’ with Iglesia | Inquirer News

August 31, 2015, 11:14 am

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"x x x.

Expressing fears of a whitewash, Samson’s lawyers Trixie Cruz-Angeles and Ahmed Paglinawan, in a statement, called on President Aquino and Interior Secretary Mar Roxas to disclose the alleged agreement to the public.

“What is the nature of this agreement? What are its conditions and terms? It is our client who had unintentionally set off these events by filing his case, yet somehow we have not been included in this so-called agreement. Assuming of course there is one,” they said.

“There are two things you need to do, sirs, speaking as part of the body you call your bosses. First is to be transparent with your agreement. Tell us whether or not you’ve sold our client down the river or tell us if you haven’t. But you need to disclose this to us. A criminal case is not a political pawn. The law provides that it cannot be compromised. The president can grant pardons and issue clemency and amnesty. But you do NOT have the power to refuse prosecution,” they added

The two lawyers also said they wanted the government to assure Samson and his family that their complaint would be given due process and treated fairly.

“[Y]ou must guarantee our client a fair hearing at preliminary investigation. The fear now is that given the so-called agreement, a finding of ‘no probable cause’ to make this nightmare go away for the INC’s Sanggunian is a very real possibility,” they said.
The lawyers warned that the non-disclosure of the alleged agreement and the secret talks that led to it might also hurt the government’s credibility in resolving the cases filed by Samson.

“[Y]ou would not have raised so many doubts had you been transparent with these proceedings, had you included our client. Whether you stood up to defend him, or sold him out, he had and has the right to know. Instead, you conducted it in secret, and now you have made your ability to deliver justice subject to a very real, very reasonable suspicion,” they said.
Angeles and Paglinawan also said they were not surprised that INC leaders were very vocal about the understanding reached with the government.

“The idea is to make the public feel that they had flexed their muscle and the government has responded in a manner favorable to them. The idea is to make us feel that in relation to whatever it is they were rallying for (or against), the government has capitulated. And sadly that capitulation may involve trampling on the rights of our client,” they said.

x x x."

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RA 9262; Temporary Protection Order (TPO); The grant of a TPO ex parte cannot be challenged as violative of the right to due process.

September 1, 2015, 12:52 am

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x x x.

Section 15 of RA 9262 provides:

SECTION 15. Temporary Protection Orders. – Temporary Protection Orders (TPOs) refers to the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued. A court may grant in a TPO any, some or all of the reliefs mentioned in this Act and shall be effective for thirty (30) days. The court shall schedule a hearing on the issuance of a [Permanent Protection Order] PPO prior to or on the date of the expiration of the TPO. The court shall order the immediate personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO shall include notice of the date of the hearing on the merits of the issuance of a PPO.

In Garcia v. Drilon,wherein petitioner therein argued that Section 15 of RA 9262 is a violation of the due process clause of the Constitution, we struck down the challenge and held:

A protection order is an order issued to prevent further acts of violence against women and their children, their family or household members, and to grant other necessary reliefs. Its purpose is to safeguard the offended parties from further harm, minimize any disruption in their daily life and facilitate the opportunity and ability to regain control of their life.

The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to safeguard the victim from greater risk of violence; to accord the victim and any designated family or household member safety in the family residence, and to prevent the perpetrator from committing acts that jeopardize the employment and support of the victim. It also enables the court to award temporary custody of minor children to protect the children from violence, to prevent their abduction by the perpetrator and to ensure their financial support.

The rules require that petitions for protection order be in writing, signed and verified by the petitioner thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since “time is of the essence in cases of VAWC if further violence is to be prevented,” the court is authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or property of the victim is in jeopardy and there is reasonable ground to believe that the order is necessary to protect the victim from the immediate and imminent danger of VAWC or to prevent such violence, which is about to recur.

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The victim is required not only to verify the allegations in the petition, but also to attach her witnesses’ affidavits to the petition.

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. Just like a writ of preliminary attachment which is issued without notice and hearing because the time in which the hearing will take could be enough to enable the defendant to abscond or dispose of his property, in the same way, the victim of VAWC may already have suffered harrowing experiences in the hands of her tormentor, and possibly even death, if notice and hearing were required before such acts could be prevented. It is a constitutional commonplace that the ordinary requirements of procedural due process must yield to the necessities of protecting vital public interests, among which is protection of women and children from violence and threats to their personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that notice be immediately given to the respondent directing him to file an opposition within five (5) days from service. Moreover, the court shall order that notice, copies of the petition and TPO be served immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30) days from service on the respondent.

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and service of the notice upon the respondent requiring him to file an opposition to the petition within five (5) days from service. The date of the preliminary conference and hearing on the merits shall likewise be indicated on the notice.

The opposition to the petition which the respondent himself shall verify, must be accompanied by the affidavits of witnesses and shall show cause why a temporary or permanent protection order should not be issued.

It is clear from the foregoing rules that the respondent of a petition for protection order should be apprised of the charges imputed to him and afforded an opportunity to present his side. x x x. The essence of due process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of one’s defense. “To be heard” does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process.”

x x x

“Section 2 of Article VIII of the 1987 Constitution provides that “the Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.” Hence, the primary judge of the necessity, adequacy, wisdom, reasonableness and expediency of any law is primarily the function of the legislature. The act of Congress entrusting us with the issuance of protection orders is in pursuance of our authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights.”

RALPH P. TUA, Petitioner,  vs. HON. CESAR A. MANGROBANG, Presiding Judge, Branch 22, Regional Trial Court, Imus, Cavite; and ROSSANA HONRADO-TUA, Respondents, G.R. No. 170701, January 22, 2014.

x x x."

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Immutability of final judgments; exceptions.

September 1, 2015, 1:11 am

≫ Next: Revocation of donation vs. Quieting of title.

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PHILIPPINE WOMAN’S CHRISTIAN TEMPERANCE UNION, INC. VS. TEODORO R. YANGCO 2ND AND 3RD GENERATION HEIRS FOUNDATION, INC., G.R. No. 199595, April 02, 2014.  

“x x x.

While firmly ingrained as a basic procedural tenet in Philippine jurisprudence, immutability of final judgments was never meant to be an inflexible tool to excuse and overlook prejudicial circumstances. The doctrine must yield to practicality, logic, fairness and substantial justice. Hence, it’s application admits the following exceptions: (1) the correction of clerical errors; (2) the so-called nunc pro tunc entries which cause no prejudice to any party; (3) void judgments; and (4) whenever circumstances transpire after the finality of the decision rendering its execution unjust and inequitable.[2]

Here, the third exception is attendant. The nullity of the RTC judgment and all subsequent rulings affirming the same, render inoperative the doctrine of immutability of judgment, and consequently justify the propriety of giving due course to the present petition.

To expound, the RTC judgment in LRC Case No. Q-18126(04) and all proceedings taken in relation thereto were void because the RTC did not acquire jurisdiction over the fundamental subject matter of TRY Foundation’s petition for the issuance of a title which was in reality, a complaint for revocation of donation, an ordinary civil action outside the ambit of Section 108 of P.D. No. 1529.

X x x.”

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Revocation of donation vs. Quieting of title.

September 1, 2015, 2:01 am

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EDGARDO D. DOLAR vs. BARANGAY LUBLUB (now P.D. Monfort North) of the Municipality of Dumangas, herein represented by its Punong Barangay, PEPITO DUA, PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, DUMANGAS WATER DISTRICT, 4th ILOILO MOBILE GROUP, ILOILO PROVINCIAL POLICE, ILOILO REGIONAL TRIAL COURT, BRANCH 68, G.R. No. 152663, November 18, 2005

"x x x.

It bears stressing that petitioner, at the outset, predicated his action to quiet title on the ground of ineffectiveness of the donation, albeit he would later add the matter of its invalidity. Indeed, the make or break issue to be resolved and to which all others must yield turns on the validity and/or continued efficacy of the subject donation. Valid and effective, the donation virtually forecloses any claim which petitioner may have over the donated property against the donee and other occupants thereof, and his action to quiet title is virtually doomed to fail. Invalid and ineffective, however, the arena is left open for petitioner to recover ownership and possession of the donated property and have the cloud on his title thereto, if any there be, removed.

According to petitioner, the subject donation is, by force of Article 745[15] of the Civil Code, void, the accepting barangay captain being without sufficient authority for the purpose. On this point, petitioner cites Section 88 of Batas Pambansa Blg. 337[16] - the law then in force - and Sections 91 and 389 the Local Government Code of 1991[17]. In gist, these provisions empower the punong barangay to enter into contracts for the barangay upon authorization of the Sangguniang Barangay, or, in the alternative, theSanggunian may authorize the barangay head to enter into contracts for the barangay.

Excepting, however, respondent barangay alleged that then barangay captain Jose Militar accepted the donation in the same Deed of Donation per authority granted by the barangay council.[18]

The question then of whether Militar was clothed with authority to accept the donation for respondent barangay stands as disputed. Since the present recourse is interposed on pure questions of law, we need not resolve the factual issue regarding Militars authority, or lack of it, to accept the donation in behalf of respondent barangay. It should be pointed out, nevertheless, that petitioner is hardly the proper party to challenge the validity of the donation which is presumed to be valid - on the ground he presently invokes. The honor to question Militars ultra vires act, if this be the case, belongs to the Sanggunian of Barangay P.D. Monfort North. And more to the point, even assuming ex gratia argumenti petitioners legal standing to raise such a question, the final answer would still lean towards the validity of the donation. For, from the allegations of all the parties, it would appear that, through the years, the Sanggunian of Lublub as well as all the succeeding Sangunians of P.D. Monfort North neither repudiated the acceptance of the donation by Militar nor acted in a manner reflective of their opposition to the donation. On the contrary, the respondent barangay has been enjoying the material and public-service benefits arising from the infrastructures projects put up on the subject property. In a very real sense, therefore, the Sangguniang Barangay and the good people of P.D. Monfort North, by availing themselves of such benefits for more than two decades now, effectively ratified Militars acceptance of the donation.

This brings us to the question of the efficaciousness of the donation. Petitioner asserts that the 1981 and 1989 deeds of donation, pursuant to the uniform automatic rescission/reversion clauses therein, ceased to be effective upon respondents failure to meet the conditions for which it was charged to fulfill. To petitioner, the automatic rescission/reversion clause works, in appropriate instances, to revoke the donation and revert the ownership of the donated property to the donor without the need of judicial intervention. In support of this argument, petitioner cites De Luna vs. Abrigo[19] wherein this Court put to rest any lingering doubt as to the validity of a stipulation providing for the automatic reversion of the donated property to the donor upon non-compliance by the donee of the conditions or charges incumbent upon him.

Cited likewise is the subsequent complementary holding in Roman Catholic Archbishop of Manila vs. Court of Appeals[20], thus:

Although it is true that under Article 764 of the Civil Code an action for the revocation of a donation must be brought within four (4) years from the non-compliance of the conditions of the donation, the same is not applicable in the case at bar. The deed of donation involved herein expressly provides for automatic reversion of the property donated in case of violation of the condition therein, hence a judicial declaration revoking the same is not necessary.

De Luna and Archbishop of Manila are, to be sure, apropos. However, petitioners argument to support his thesis on the automatic rescission of the donation in question and the consequent reversion of the property to the donor is an incomplete presentation of the Courts pronouncements on the point.

We shall explain.

If the corresponding contract of donation expressly provides for automatic rescission and/or reversion in case of breach of the condition therein, and the donee violates or fails to comply with the condition, the donated property reverts back automatically to the donor. Such provision, De Luna teaches, is in the nature of an agreement granting a party the right to rescind a contract in case of breach, without need of going to court and that upon the happening of the resolutory condition or non-compliance with the conditions of the contract, the donation is automatically revoked without need of a judicial declaration to that effect. Where, however, the donee denies, as here, the rescission or challenges the propriety thereof, then only the final award of the court can, to borrow from University of the Philippines vs. de los Angeles,[21] conclusively settle whether the resolution is proper or not. Or, in the language of Catholic Archbishop of Manila:[22]

The rationale for the foregoing is that in contracts providing for automatic revocation, judicial intervention is necessary not for purposes of obtaining a judicial declaration rescinding a contract already deemed rescinded by virtue of an agreement providing for rescission even without judicial intervention, but in order to determine whether or not the rescission was proper.

When a deed of donation, . . . expressly provides for automatic revocation and reversion of the property donated, the rules on contract and the general rules on prescription should apply, and not Article 764 of the Civil Code. Since Article 1306 of said Code authorizes the parties to a contract to establish such stipulations, . . . not contrary to law, . . . public order or public policy, we are of the opinion that, at the very least, that stipulation of the parties providing for automatic revocation of the deed of donation, without prior judicial action for that purpose, is valid subject to the determination of the propriety of the rescission sought. Where such propriety is sustained, the decision of the court will be merely declaratory of the revocation, but it is not in itself the revocatory act.

In the case at bench, it cannot be gainsaid that respondent barangay denied or challenged the purported revocation of the donation. In fact, the denial or challenge is embodied in respondent barangays complaint in Civil Case No. 00‑140 and in its Answer cum motion to dismiss in Civil Case 98-033, which similarly prayed for, among other things, the cancellation of petitioner's title on the subject property.

The foregoing discussion veritably disposes of the second formulated issue.

Now back to the first issue. It is petitioners posture that his action in Civil Case No. 98-033 is one for quieting of title under Article 476[23] of the Civil Code, not, as erroneously regarded by the trial court, an action to revoke donation under Article 764 of the Code which, insofar as pertinent, reads as follows:

Article 764. The donation shall be revoked at the instance of the donor, when the donee fails to comply with any of the conditions which the former imposed upon the latter.

xxx xxx xxx.

This action shall prescribe after four years from the noncompliance with the condition, may be transmitted to the heirs of the donor, and may be exercised against the donee's heirs. (Underscoring added)

Petitioners posture does not persuade.

As aptly observed by the trial court, the petitory portion of petitioners complaint in Civil Case No. 98-033 seeks for a judgment declaring him the absolute owner of the donated property, a plea which necessarily includes the revocation of the deed of donation in question. Verily, a declaration of petitioner absolute ownership appears legally possible only when the deed of donation is contextually declared peremptorily revoked.

Owing to the prescriptive component of Article 764 of the Civil Code, petitioners dread of the invocation and application of said provision is at once apparent as it is understandable. For, an action to revoke thereunder prescribes after four (4) years from non-compliance by the donee with any of the conditions set forth in the deed of donation. A little less than seventeen (17) years separate September 16, 1981, when the Deed of Donation was executed, from May 6, 1998, when petitioner filed his complaint in Civil Case No. 98-033. Seventeen (17) years is, in turn, too far removed, as shall be illustrated shortly, from the 4-year prescriptive period referred to in Article 764 or even from the 10-year period under Article 1144.[24]

It cannot be overemphasized that respondent barangay traces its claim of ownership over the disputed property to a valid contract of donation which is yet to be effectively revoked. Such rightful claim does not constitute a cloud on the supposed title of petitioner over the same property removable by an action to quiet title. Withal, the remedy afforded in Article 476 of the Civil Code is unavailing until the donation shall have first been revoked in due course under Article 764 or Article 1144 of the Code.

Lest it be overlooked, the rule on the imprescriptibility of actions to quiet title admits of exceptions. The trial court correctly mentioned one, referring to a situation where the plaintiff in an action to quiet title is not in actual possession of the land.[25] In the case at bench, petitioner is not in possession of the property. For sure, he is even asking in his complaint in Civil Case No. 98-033 for recovery of possession of the donated property.

Given the above disquisition, petitioner can hardly fault the trial court for its holding that petitioners action to revoke is time-barred. As may be recalled, respondent barangay had, under the terms of the deed of donation, five (5) years from the execution of the conveying deed in September 1981, or up September 1986, within which to introduce and complete the contemplated development of the donated area. Following Article 764 of the Civil Code, petitioner had four (4) years from September 1986, or up to September 1990, within which to seek the revocation of the subject donation on the ground of breach of contract.

The Court can grant that the prescription of actions for the revocation of onerous donations, as here, are governed by the general rules on prescription,[26] which, in context, is Article 1144 of the Civil Code providing that actions upon a written contract shall be brought within ten (10) years from accrual of the right of action. Ten years from September 1986 the date when petitioners right to revoke accrued - would be September 1996. Here, however, what partakes as petitioners suit to revoke was filed only in May 1998.

In all, petitioners right of action to revoke or cancel the donation had indeed prescribed, regardless of whether the applicable legal provision is Article 764 or the favorable Article 1144 of the Civil Code. It should be stated in this regard, however, that respondent barangay had disputed the existence of the grounds upon which petitioner anchored his right to revoke, claiming it had already complied with the construction and development conditions of the donation. From the records, it would appear that respondent barangays boast of compliance is not an empty one. As we see it, the establishment on the donated area of telephone service, a water service, a police mobile force, and a courtroom, all for the benefits of the barangay residents, substantially satisfies the terms and conditions of the subject donation. The concrete paving of roads and the construction of government offices, sports complex for public enjoyment and like infrastructures which, per respondent barangays estimate, cost not less than P25 Million,[27] add persuasive dimension to the conclusion just made.

Petitioner's long silence vis--vis the kind of development structures that Barangay Lublub had decided to put up or allowed to be established on the subject area cannot but be taken as an indicia of his satisfaction with respondent barangays choice of public service projects. The prolonged silence was broken only after the provincial and municipal governments advertised, then sold the property in a public auction to satisfy questionable tax liabilities.

Much is made by petitioner about his execution of the 1989 deed of donation, which, to him, should be utilized as a point of reference in determining the prescriptive period[28] defined under either Article 764 or 1144 of the Civil Code. He states:

xxx It has not been explained up to this juncture why the Deed of Donation of June 1989 is not being mentioned or considered when it is alleged in the complaint. As will be noted in the Deed of Donation dated 1981 the property was jointly owned by plaintiff Dolar and Jarantilla, with separate title; in Annex B, the Donation of 1989 only plaintiff Dolar signed the same as the only registered owne[r] of the lot donated; xxx. As previously adverted to, the prescriptive period for violation or contravention of the terms and conditions of Annex B should be reckoned from 1994 and therefore this action filed in 1998 is within the period.

With the view we take of the case, the execution of the 1989 deed of donation is really of little moment in terms of furthering petitioners cause. For, at that time, the property subject of this recourse was no longer his to donate, having earlier relinquished his ownership thereon. Nemo dat qui non habet No one can give what he has not.[29] Stated a bit differently, respondent barangays right over the donated area proceeds from the 1981 donation. The legal effects, therefore, of its action or inaction respecting the donated property should be assayed on the basis of the 1981 donation.

The last issue raised pivots on whether or not respondent barangay can acquire the subject property by acquisitive prescription, the petitioners thesis being that prescription does not run against registered land.[30]

Petitioners point is theoretically correct and may perhaps tip the balance in his favor, but for the fact that the respondent barangay anchors its title and right over the donated lot, first and foremost, by virtue of the deed of donation. Admittedly, standing alone, adverse, continuous and long possession of a piece of real property cannot defeat the title of a registered owner. But, then, this postulate presupposes a Torrens title lawfully acquired and issued. As may be recalled, however, respondent barangay instituted Civil Case No. 00-140, supra, for Cancellation of Title, Reconveyance/Issuance of Title precisely because of the dubious manner by which petitioner allegedly acquired his TCT No. T-129837 over a lot he admits donating.

Parenthetically, petitioners contention that the donation was invalid because it was not registered in the Registry of Property deserves no merit. For, as between the parties to the donation and their assigns, the registration of the deed of donation with the Registry of Deeds is not needed for its validity and efficacy. In Pajarillo vs. Intermediate Appellate Court,[31] the Court emphatically dismissed the notion that registration was necessary to make the donation a binding commitment insofar as the donor and the donee were concerned.

As a final consideration, let it be made clear that this opinion merely resolves the question of the correctness of the dismissal by the trial court of Civil Case No. 98-033 on the basis of facts attendant thereto in the light of applicable laws and jurisprudence. It is not meant to prejudge the outcome of Civil Case No. 00-140 which, while related to Civil Case No. 98-033, tenders different issues, foremost of which is the validity of a Torrens title issued over a piece of land to one who had previously donated the same.

x x x."

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Summary judgment vs. Judgment on the Pleadings; distinctions.

September 1, 2015, 2:28 am

≫ Next: REVISED RULES ON ADMINISTRATIVE CASES IN THE CIVIL SERVICE (RRACCS), CSC Resolution No. 1101502, Nov. 8, 2011 (“RRACCS”); BASIC FEATURES.

≪ Previous: Revocation of donation vs. Quieting of title.

OLIVAREZ REALTY CORPORATION AND DR. PABLO R. OLIVAREZ VS. BENJAMIN CASTILLO, G.R. No. 196251, July 09, 2014.  

“x x x.

Summary judgment in this case is proper.

A motion for summary judgment is filed either by the claimant or the defending party. The trial court then hears the motion for summary judgment. If indeed there are no genuine issues of material fact, the trial court shall issue summary judgment. Section 3, Rule 35 of the 1997 Rules of Civil Procedure provides:

SEC. 3. Motion and proceedings thereon. – The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or admission at least three (3) days before the hearing. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

An issue of material fact exists if the answer or responsive pleading filed specifically denies the material allegations of fact set forth in the complaint or pleading. If the issue of fact “requires the presentation of evidence, it is a genuine issue of fact.” However, if the issue “could be resolved judiciously by plain resort” to the pleadings, affidavits, depositions, and other papers on file, the issue of fact raised is sham, and the trial court may resolve the action through summary judgment.

A summary judgment is usually distinguished from a judgment on the pleadings. Under Rule 34 of the 1997 Rules of Civil Procedure, trial may likewise be dispensed with and a case decided through judgment on the pleadings if the answer filed fails to tender an issue or otherwise admits the material allegations of the claimant’s pleading.

Judgment on the pleadings is proper when the answer filed fails to tender any issue, or otherwise admits the material allegations in the complaint. On the other hand, in a summary judgment, the answer filed tenders issues as specific denials and affirmative defenses are pleaded, but the issues raised are sham, fictitious, or otherwise not genuine.

In this case, Olivarez Realty Corporation admitted that it did not fully pay the purchase price as agreed upon in the deed of conditional sale. As to why it withheld payments from Castillo, it set up the following affirmative defenses: First, Castillo did not file a case to void the Philippine Tourism Authority’s title to the property; second, Castillo did not clear the land of the tenants; third, Castillo allegedly sold the property to a third person, and the subsequent sale is currently being litigated before a Quezon City court.

Considering that Olivarez Realty Corporation and Dr. Olivarez’s answer tendered an issue, Castillo properly availed himself of a motion for summary judgment.

However, the issues tendered by Olivarez Realty Corporation and Dr. Olivarez’s answer are not genuine issues of material fact. These are issues that can be resolved judiciously by plain resort to the pleadings, affidavits, depositions, and other papers on file; otherwise, these issues are sham, fictitious, or patently unsubstantial.”

X x x.”

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REVISED RULES ON ADMINISTRATIVE CASES IN THE CIVIL SERVICE (RRACCS), CSC Resolution No. 1101502, Nov. 8, 2011 (“RRACCS”); BASIC FEATURES.

September 1, 2015, 2:46 am

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INTRODUCTION.

1. The old 1999Uniform Rules on Administrative Cases in the Civil Service (cf. CSC Resolution No. 99-1936, dated August 31, 1999, and CSC Memorandum Circular No. 19, S. 1999) was repealed or modified accordingly by 2011 RRACCS.

2. Sec. 2, Rule 1, of RRACCS provides that RRACS applies to all disciplinary and nondisciplinary administrative cases brought before the Civil Service Commission, “agencies and instrumentalities of the National Government”, local government units, and government-owned or controlled corporations with original charters except as may be provided by law.

3. All provisions in the old Departmental Rulesof the Executive Branch which are inconsistent w/ 2011 RRACCSshould be deemed void, ineffective, and ultra vires.

4. Section 126, Rule 124, of RRACCS (Repealing Clause) provides that the 1999 Uniform Rules on Administrative Cases in the Civil Service (CSC Resolution No. 99-1936 dated August 31, 1999; CSC Memorandum Circular No. 19, s. 1999) and “all other memorandum circulars, resolutions, rules or regulations inconsistent with this Rules are hereby repealed or modified accordingly.”

CONSTRUCTION.

5. Section 3 (Construction) of RRACCS provides that RRACCS shall be “liberally construed”in order to promote their objective in obtaining just, speedy, and inexpensive disposition of administrative cases.

6. It also provides that administrative investigations shall be conducted “without strict recourse to the technical rules of procedure and evidence applicable to judicial proceedings”.

DEFINITIONS.

7. Section 4 (Definition of Terms) of RRACCS defines “AGENCY” asreferring to “any bureau, office, commission, administration, board, committee, institute, corporation with original charter, whether performing governmental or proprietary function, or any other unit of the national government as well as provincial, city or municipal government.”

8. The term “DEPARTMENT” refers to any of the “executive departments or entities having the category of a department, including the judiciary, legislative and the other constitutional commissions”. (Id.).

9. “DISCIPLINING AUTHORITY” refers to the “personor body duly authorized to impose the penalty provided for by law or rules.”

JURISDICTION OF CSC EN BANC.

10. Section 7 (Cases Cognizable by the Civil Service Commission) provides that the CSC shall take cognizance, inter alia, of decisions of heads of agencies imposing penalties exceeding thirty (30) days suspension or fine in an amount exceeding thirty (30) days salary brought before it on appeal.

11. Section 9 (Jurisdiction of Heads of Agencies) provides that:

11.1. The Dept. Secretaries and heads of agencies, and other instrumentalities, shall have original concurrent jurisdiction with the Commissionover their respective officers and employees.

11.2. They shall take cognizance of complaints involving their respective personnel.

11.3. In case the decision rendered by a bureau or office head is appealable to the Commission (i.e., Dismissal), the same “may” be initially appealed to the department and “finally” to the Commission.

11.4. Pending appeal, the Decision shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.

DECISION.

12.Section 45 (Finality of Decisions)provides that if the penalty imposed is suspension exceeding thirty (30) days [ie., DISMISSAL], or fine in an amount exceeding thirty (30) days’ salary, the same shall be final and executory after the lapse of the reglementary period for filing “a motion for reconsiderationoran appeal” and no such pleading has been filed.

12.1. The use of the disjunctive term “OR” shows that:

(a) The dismissed employee may or may not file a motion for reconsideration w/ the 1^st-Level Disciplining Authoirty;

(b) The employee may directly appeal the questioned Decision (Dismissal) to the 2^nd-Level/Dept.-Level/Appellate Disciplining Authority (Dept. Sec.) w/o first filing a motion for recon w/ the 1^st-Level Disciplining Authority;

(c) The employee may appeal the Decision of the 1^st-Level Disciplining Authority (lower than Dept. Sec. level):

· First to the Department Secretary

· And, finally, to the CSC En Banc;

· Or, the employee may appeal the Decision of the 1^st-Level Disciplining Authority directly to the CSC En Banc.

· In the meantime, even while the CSC appeal is pending [bypassing the Dept. Sec.], the he may proceed w/ his own “confirmation” process to determine if the dismissal can be/should be executed pending appeal w/ the CSC En Banc.

MOTION FOR RECONSIDERATION.

13.Section 56 provides that the party adversely affected by the decision may file a motion for reconsideration with the Disciplining Authority who rendered the same within fifteen (15) days from receipt thereof.

13.1. A motion for extension of time to file a motion for reconsideration is notallowed.

14.Section 59 provides that only one motion for reconsideration shall be entertained.

14.1. If a second motion for reconsideration is filed the finality of the Decision shall be reckoned from the denial of the first motion for reconsideration.

15.Section 60 provides that the filing of a motion for reconsideration within the reglementary period of fifteen (15) days shall stay the execution of the decision sought to be reconsidered.

15.1. This refers to a decision of a 1^st-Level Disciplining Authority.

15.2. The exception is the case of a Dismissal which must first be confirmed by the Dept. Sec. to be immediately executory pending appeal by the employee before the CSC En Banc.

15.2.1. Here, if the Dismissal was confirmed by the Dept. Sec., and even if it was appealed further by the employee to the CSC En Banc, it would be immediately executory pending such appeal.

APPEALS.

16.Section 61 provides that, subject to Section 45, supra, decisions of Heads of Departments, agencies, provinces, cities, municipalities and other instrumentalities imposing a penalty exceeding thirty (30) days suspension (i.e., Dismissal) or fine in an amount exceeding thirty (30) days salary,may be appealed to the Commission within a period of fifteen (15) days from receipt thereof.

17.In case the decision rendered by a bureau or office head is appealable to the Commission, the same

· may be initially appealedto the Dept. Head/Dept. Sec.;

· and then finally to theCommission.

18.All decisions of heads of agencies are immediately executory pending appeal before the Commission.

19.The decision imposing the penalty of dismissal by disciplining authorities in departments is not immediately executory unless confirmed by the Dept. Sec..

20. However, the Commission may take cognizance of the appeal pending confirmation by the Secretary.

20.1. It seems that the “confirmation” process before the Dept. Sec. is not equivalent to the “regular appeal” process before him.

20.2. It seems that even if the dismissed employee directly appeals to the CSC En Banc, by-passing the Dept. Sec., the latter may still proceed with the “confirmation” process at his level to make the dismissal immediately executory pending appeal w/ the CSC En Banc.

21.Section 64 (Perfection of an Appeal) provides that to perfect an appeal, the appellant shall submit three (3) copies of the following documents:

21.1. Appeal memorandumcontaining the grounds relied upon for the appeal, together with the certified true copy of the decision, resolution or order appealed from, and certified copies of the documents or evidence.

21.1.1. The appeal memorandum shall be filed with the appellate authority, copy furnished the disciplining authority.

21.1.2. The latter (“Disciplining Authority”) shall submit the Case Record to the Appellate Authority with his Comment, within fifteen (15) days from receipt of the Appeal Memo.

21.2. Proof of serviceof a copy of the appeal memorandum to the disciplining office;

21.3. Proof of payment of the appeal fee; and

21.3.1. Section 63 (Appeal Fee) provides that the appellant shall pay an appeal fee and a copy of the official receipt thereof shall be attached to the appeal.

21.4. A statement or certificate of non-forum shopping.

22. The doctrine of LIBERALITY is applied by the CSC En Banc here. (Sec. 64).

22.1. When an appellant fails to comply with any of the appeal requirements within the reglementary period, the Commission shall direct compliance within a period of not more than ten (10) days from receipt thereof, with a warning that failure to comply shall be construed as failure to perfect an appeal and shall cause the dismissal of the appeal with prejudice to its refiling.

23. Please note that the 2011 RRACCS does not require a Notice of Appeal, unlike the old rules of some Departments.

24. Section 65 (Effect of Filing an Appeal) provides that in Decisions requiring confirmation the Department Secretary (i.e., Dismissal), an appeal shall stopthe decision from being executory.

24.1. In other words:

24.1.1. If the penalty is Dismissal, requiring the confirmation of the Dept. Sec., and an appeal is filed by the employee w/ the Dept. Sec., the execution of the Dismissal is suspended pending regular appeal w/ the Dept. Sec. orpending his “confirmation” process.

24.1.2. If the Dept. Sec. confirms the Dismissal, it is immediately executory even if the employee appeals further to the CSC en Banc.

25. Section 66 (Remand of an Appealed Case to Agency of Origin) provides that if a formal charge has been issued but the disciplining authority has violated respondent-appellant’s right toprocedural due process, the Commission shall remand the appealed case to the agency of origin for further proceedingsto be conducted within three (3) calendar months from the date of receipt of the case records.

25.1. The absence of the cold neutrality of a judge destroys an employee’s rights to due process of law and to equal protection of the law. (Cf. “Caesar’s Wife” doctrine).

26. After the Remand Order, if at the end of the three (3) month period, the disciplining authority failed to conduct further proceedings, the Commission upon motion of the respondent-appellant shall vacate and set aside the appealed decision and declare the respondent-appellant exonerated of the charges.

Atty. Manuel J. Laserna Jr.

↧

Court of Appeals exempts ADB workers from income tax

September 1, 2015, 9:26 am

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See - Court of Appeals exempts ADB workers from income tax; nod for Uber, Grabcar not enough

"x x x.

Are the income and other financial emoluments received by Filipinos employed in international financial organizations like the Asian Development Bank covered by Philippine tax laws? This question was answered in the affirmative in this column back in October 2014.

The Bureau of Internal Revenue (BIR) shared the same view and demanded that Filipinos working with the Asian Development Bank (ADB) head office in Mandaluyong City pay the corresponding taxes on their incomes.

Two ADB employees, Erwin Salaveria and Portia Gonzales, refused to pay up and sued for relief before the Regional Trial Court in Mandaluyong City. After the trial court ruled in their favor, the BIR appealed the case to the Court of Appeals. Last month, the appellate court dismissed the appeal on the ground that the BIR should have gone directly to the Supreme Court for appropriate relief.

What remedial measures the BIR will pursue in the premises is not yet clear, but it is almost certain that it will not give up without a fight.

Attention is invited to the official documentation on record.

The agreement between the Republic of the Philippines and the ADB states that ADB employees are entitled to “exemption from taxation on or in respect of the salaries and emoluments paid by the bank subject to the power of the government to tax its nationals.” This means that while the ADB will not impose any kind of tax on the income of its employees, the Philippine government may impose taxes on the income earned by Filipinos working in the ADB. Considering that the agreement was executed in accordance with international law, it is legally binding on the Philippines.

Jurisprudence favors the BIR. The Supreme Court has repeatedly recognized the obligation of the Philippine government to observe its treaty commitments (Reyes v. Bagatsing, 125 SCRA 553), and has held that tax exemptions must be strictly construed against the taxpayer (Kepco Phils. Corporation v. Commissioner of Internal Revenue, 636 SCRA 166).
There is no need for Congress to enact specific legislation to make the ADB agreement binding on the Philippines. Under international law, the treaty obligations of a state cannot be made to depend on the action or inaction of the legislature of that state. In other words, obligations created under international law cannot depend on the existence of an implementing municipal law.

Exempting income and other financial emoluments received by Filipinos from the ADB, or from any similar international organization for that matter, may also give rise to a constitutional issue. The equal protection clause of the Constitution means people similarly situated should be treated similarly. If all Filipinos who have a sizeable income, including those working overseas, must pay income taxes, there is no reason why Filipinos employed in international organizations operating in Philippine territory who have a sizeable income should be tax exempt. For this reason alone, the BIR must bring the ADB tax case to the Supreme Court.

x x x."

↧

‘Real-time justice’; E-Courts; Judicial Reforms

September 1, 2015, 10:00 am

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See - ‘Real-time justice’ moves litigants, lawyers to cry for joy | Inquirer News

"x x x.

Automation of processes

“I believe this is the kind of justice that our people deserve. I am appealing to all our [countrymen]: The fight for justice is a very long one, and it can be very detailed, it can go down to the nitty-gritty because high ideals and motherhood slogans are not enough to bring justice to our people,” she said.

Since her appointment in 2012, Sereno has been leading a reform program that involves automation of court processes, marathon trials and deployment of mobile courts to decongest the dockets, among other improvements.

“This means that during trial, every activity is captured electronically, right there and then, including orders issued by the judge, minutes of the hearing conducted, judges’ notes on testimony taken, markings of evidence, issuance of writs and other court processes,” Sereno said.

“This is done by linking together the computers of the judge, stenographer and interpreters to allow all individuals to view and edit [in real time] the documents being prepared,” she said.

Currently up to 100 courts in Quezon City, Angeles City, Tacloban City, Lapu-Lapu City and Davao City can instantly release orders.

In these courts, judges have not just their gavels on the bench, but also laptops for immediate encoding of court orders. Nearby are printers for the immediate printing of documents following proceedings, Sereno said.

The judiciary aims to introduce automated hearings, or the transformation of “the entire courtroom into an automated trial forum,” in all Metro Manila courts by 2016, she said.

“While we have only begun to scratch the surface in addressing all the concerns before us, I am heartened to hear stories from judges, lawyers and litigants [about] how our efforts have directly affected their lives,” Sereno said.

The conduct of automated hearings is an “offshoot” of the electronic court (e-court) project, a computer-based case management system under which case information is encoded upon filing, along with subsequent pleadings and court issuances (decisions and writs) throughout the proceedings.

Through e-courts, the assessment of court fees, docketing and case raffling are done electronically. The status of cases are also tracked.

As of this month, there are 82 e-courts across the country, including the courts in Quezon City, Angeles City, Lapu-Lapu City and Tacloban City, Sereno said.

Later this year, 85 more e-courts will be launched in Davao City, Cebu City and Makati City, she said.

By next year, 120 more will become operational in Manila, Pasig City and Mandaluyong City, bringing to 287 the number of trial courts implementing the system.

Sereno said this figure would account for 30 percent of the total case load of Philippine courts.

Nationwide connectivity

The judiciary’s Nationwide Connectivity Project, which aims to provide Internet connection to the country’s courts, is also under way.

Sereno said bidding has begun for the first phase of the project, which would cover the 10 above-mentioned cities targeted for e-court implementation by next year.

“For the first time, this would provide genuine reliable connectivity in our courts [so that there will be] no reason for any delay for any court process or reporting,” Sereno said.

x x x."

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Foreign Investment In The Philippines

September 3, 2015, 8:09 am

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See - Foreign Investment In The Philippines – To Be Or Not To Be? | Conventus Law

"x x x.

How to operate in the Philippines: some legal considerations

The Negative List

Under the Foreign Investments Act of 1991 (Republic Act 7042, as amend- ed), foreign investors are allowed to invest 100% equity in companies engaged in the majority of business activities in the Philippines, subject to certain restrictions as prescribed in the Foreign Investments Negative List (“FINL”), the latest of which was issued on 29 May 2015. The FINL is a list of areas of economic activity in respect of which foreign investors are limited to a certain percentage or which are reserved for Philippines nationals. The FINL is classified as follows:

List A - consists of areas of activ- ity reserved to Philippines nationals where foreign equity participation in any domestic or export enterprise engaged in any activity listed there- in shall be limited to a maximum of 40% as prescribed by the Constitu- tion and other specific laws; and

List B - consists of areas of activity where foreign ownership is limited for reasons of security, defence, risk to health and morals and for the pro- tection of small and medium-scale enterprises.

In essence, a foreign investor may invest up to 100% equity into the Philippines provided that: (i) the proposed activity is not among those listed on the FINL; and (ii) the paid- up capital for investing in a domestic market enterprise (being an enter- prise which produces goods for sale or renders service or otherwise en- gages in any business inside the Phil- ippines) must be at least $200,000 (which may be lowered to $100,000 if the business involves the introduc- tion of advanced technology as de- termined by the Philippine Depart- ment of Science and Technology, or employment of at least 50 direct employees). If the investment is into an export enterprise, the minimum paid-up capital requirement is only PhP 5,000.

Some of the activities included in the Tenth Negative List (which took effect on 29 May 2015) are as follows:

No Foreign Equity

The practice of professions (including, but not limited to pharmacy, forestry and law)

Retail trade enterprises with paid-up capital of less than $2,500,000

Small-scale mining

Up to 20% Foreign Equity

• Private radio communications network

Up to 25% Foreign Equity

• Private recruitment, whether for local or overseas employment
• Save as provided by law, contracts for the construction and repair of locally-funded public works

Up to 30% Foreign Equity

• Advertising

Up to 40% Foreign Equity

Save as provided by law, exploration, development and utilisation of natural resources

Ownership of private lands

Ownership of condominium units

Anti-Dummy law
The Philippines has an Anti-Dummy Law (Commonwealth Act No. 108, as amended) which punishes the eva- sion of the laws on nationalisation of certain rights, franchises or privi- leges. The Anti-Dummy Law pun- ishes any citizen of the Philippines or of any other specific country who allows his name or citizenship to be used for the purpose of evading such provision (and any alien or foreigner profiting thereby), or allows a foreigner to intervene in the management, operation, administration or control of a nationalised business or corporation, except technical personnel whose employment may be specifically authorised by the Secretary of Justice or foreigners who are elected as directors in proportion to the allowable foreign ownership, by imprisonment for not less than five nor more than fifteen years, and by a fine of not less than the value of the right, franchise or privilege, which is enjoyed or acquired in violation of the Anti-Dummy Law. As a result, we strongly recommend that any for- eign investor seeks appropriate legal advice prior to embarking on any in- vestment activity in the Philippines, particularly in any area contained in the FINL.

Key advantages at a glance Investors registering with the invest- ment promotion agencies are guaranteed certain rights relating to the protection of their investment includ- ing, among other things, the right to repatriate the entire proceeds of the liquidation of the investment, the right to remit earnings, freedom from expropriation by the govern- ment without just compensation and to equal treatment with local inves- tors (to the extent permitted by law).

The Philippines’ government also of- fers many fiscal and non-fiscal incentives for foreign investors. Projects outside of the economic zones may register with the BOI to qualify for certain incentives including, among others, income tax holidays or ex- emptions from corporate income tax for four years (for “Non-Pioneer” projects) or six years (for “Pioneer” projects), extendible to a maximum of eight years, duty-free importa- tion of capital equipment, permit- ted deductions for labour expenses, permitted employment of foreign nationals in supervisory, technical or advisory positions and simplified customs procedures for the importa- tion of equipment, spare parts, raw materials and supplies and exports of processed products.

Many of the projects and potential projects we have recently advised on have involved foreign investment into the Philippines through various of the special economic zones. The Philippines has won praise for its “PEZA” zones, which offer a stream- lined permit process for foreign in- vestors. These economic zones of- fer further incentives under various laws such as the Special Economic Zone Act of 1995 (implemented by PEZA) and the Bases Conversion and Development Act of 1992.

40% ownership rule
Many argue that foreign investors are put-off by the 40% foreign-own- ership rule in relation to certain business activities. Whilst there has been some further opening up to foreign investors, for example, the passing into law of Republic Act No. 10641 in July 2014, which permits, among other things, qualified foreign banks to own 100% of a Philippine bank and to invest up to 100% equity in a new banking subsidiary, many ana- lysts feel that there are still so many limitations built into the Philippines Constitution that significant open- ing up to FDI is, in reality, probably not politically possible, at least right now. One major limitation is in re- lation to land ownership by foreign investors, which is still restricted to 40% under the latest FINL, issued on 29 May 2015.

x x x."

- See more at: http://www.conventuslaw.com/report/foreign-investment-in-the-philippines-to-be-or-not/#sthash.GVRdK2I4.RjPnACNb.dpuf

↧

Easier access to capital under the new SEC rules | Inquirer Business

September 3, 2015, 8:18 am

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See - Easier access to capital under the new SEC rules | Inquirer Business

"x x x.

After public consultations for approximately five years, the Securities and Exchange Commission (SEC) has approved certain amendments to the implementing rules and regulations of the Securities Regulation Code (SRC Rules).

There are several amendments, but this column will focus on provisions seen to enhance the ability of companies to raise funds from the domestic market. The amendments are important in light of the Asean integration, which demands that our companies be given easier access to capital for them to stay competitive. These also respond to the need for inclusive growth because providing our companies easier access to capital will empower them to create more jobs, thereby enabling our people to enjoy the fruits of economic progress.

Among the salient features of the new rules relating to capital raising are:

Shelf registration. This is a type of registration, sometimes called as shelf offering, that allows companies to raise capital from the public without a separate registration for each act of offering. Instead, there is a single registration for multiple, undefined future offerings. The registration statement may be used to offer securities for up to several years after its publication.

Unlike in the 2003 SRC Rules, the amendments expressly provide that securities may be registered for an offering to be made on a continuous or delayed basis in the future, for a period not exceeding three years from the effective date of the registration statement under which they are being offered and sold.

No new registration statement is required for the subsequent public offerings. Instead, the new rules merely require disclosure of any subsequent sale at least seven business days before the sale of each subsequent tranche.

This is not to say that the 2003 SRC Rules did not authorize the sale of securities that remained unsold after the termination of the offering period under a registration statement. The 2003 SRC Rules only mandated the filing of an updated registration statement which, of course, required some time to prepare and get approval for from the SEC. The practical effect of the old requirement was that our companies could not readily take advantage of favorable market conditions, or what is called the market window, because of the cumbersome registration process required under the old rules.

Extension of the period to sell securities. The new rules extend the period to sell securities subject of a registration statement from two to 10 business days from the effectivity date of the registration statement. The extended period enables our companies more time to raise capital from the public.

Ratings for commercial papers. The new rules removed the distinction between long-term and short-term commercial papers. A commercial paper is now simply defined as evidence of indebtedness of any person, and with a maturity of 365 days or less. Raising capital through the sale of commercial paper is made easier with the requirement of an issuer rating instead of a separate rating for each issuance.

Exempt securities. The 2015 SRC Rules introduced a new category of exempt securities. These are securities that are issued or guaranteed by multilateral financial entities (MFEs) established through a treaty or binding agreement with the Philippines.

This means the list of exempt securities is not fixed. The Securities Regulation Code (SRC) empowers the SEC to add to the list. However, adding to the current list may be done only by rule or regulation, which can be issued only after public hearing. In other words, any addition to the list should be done across the board or on a wholesale basis, not case-by-case.

Exempt transactions. The 2015 SRC Rules further liberalize the environment for capital raising by expanding the list of exempt transactions. Public offerings that have a limited character are now exempt from registration. Such offerings will be exempt as long as the covered securities are available only to the parties or persons named in the application for exemption for a specified period. An example of this is an employee stock option plan (ESOP) issued by a corporation to its employees.

Likewise, the 2015 SRC Rules have relaxed the requirements for qualified buyers under the provisions on exempt transactions. The new rules seek to do this by reducing the annual gross income requirement for individuals from P25 million to P10 million. For juridical persons, the new rules remove the two-year requirement for them to have gross assets of at least P100 million. Likewise, the new rules no longer mandate the submission of income tax returns for registration as a qualified buyer. Any verifiable document may now be submitted to prove financial capacity. Lastly, the validity of registration as qualified buyer has been extended to three years.

The effect of the relaxation of the rules is to expand the market in which securities can be sold without need of registration, thereby making access to capital easier for our companies.

Firm Underwriting. Underwriters are no longer required to underwrite securities solely on a firm commitment basis, which made the cost of raising capital quite expensive in the past. They can agree on a different plan of distribution, but subject to the approval of the S EC. However, issuers of registered securities, except issuers of proprietary/non-proprietary membership certificates or shares, are still required to enter into an underwriting agreement with an investment bank or investment house.

Financial statements. One practical problem that companies often encounter in their capital raising activity is the 135-day rule, which mandated that the offering must take place within 135 days from the end of the fiscal period subject of the financial audit. Sometimes, market developments occurring within the period turn out to be unfavorable, ending in the company failing to raise the needed money. There are also times when the offering cannot take place within the 135-day period for reasons beyond the control of the company. Postponing the activity was quite expensive as it required a new audit.

In line with the new policy to liberalize the environment for capital raising, the SEC has adopted a policy to extend the effectivity of financial statements to 180 days from 135 days. This will align the country’s accounting rules with the Asean standards. The new policy will be formalized as part of the amended SRC Rule 68. In the meantime, companies can avail of this extension by filing a request for relief with the SEC.

Conclusion. What is admirable about the new rules is that while they liberalize the environment for capital raising, they do not do so at the expense of investor protection. These will be discussed on this column in the future.

* * *
(The author [Atty. Francis Lim] is a senior partner of the ACCRA Law Offices and the president of the Shareholders’ Association of the Philippines (SharePHIL). The views in this column are exclusively his. He may be contacted at francis.ed.lim@gmail.com.)
x x x."

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What kind of president should we elect if we want a better Supreme Court?

September 3, 2015, 9:25 am

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See - BusinessWorld | What kind of president should we elect if we want a better Supreme Court?

"x x x.

The next president will choose the members of the Cabinet who will help run the executive branch of the government. Perhaps even more crucial, the president who is elected in 2016 will appoint no less than 10, or a majority of members of the Supreme Court. Yes, Virginia, this is unbelievable but true. No less than 10 members of the Supreme Court are retiring during the term of the next president.

We still have a long way to go in our journey toward a truly civilized government of laws, rather than of men.

Because the current Supreme Court is largely dominated by appointees of the highly political former President Gloria Macapagal Arroyo, we have, during the last five years, encountered questionable Supreme Court decisions, often penned by Associate Justice Lucas P. Bersamin whose ponencias often escape logic, or worse, the law. Decisions by the current Supreme Court majority have often been a heavy burden, like a yoke around the neck of Daang Matuwid.

The latest decision, which was to grant bail to Senator Juan Ponce Enrile, accused of plunder, and therefore, according to law, is not allowed bail, is incredible. The crime of plunder is a capital offense, punishable byreclusion perpetua and therefore non-bailable.

How the Supreme Court arrived at the majority decision to grant bail to Senator Enrile is unbelievable. And if not reversed, it has set a dangerous precedent where the Supreme Court can in effect violate the law.

Let me quote from Bersamin’s ponencia: “With his solid reputation in his public and his private lives, his long years of public service, and history’s judgment of him being at stake, he should be granted bail.”

The public is not unaware of the public exposé of Senator Enrile’s wife Cristina of his constant philandering. There are also enough victims of martial law who on orders of then Martial Law administrator Enrile were arrested and incarcerated with unspecified bases. Enrile also cooperated in the exploitation of coconut farmers as Chairman of the Marcos-era United Coconut Planters Bank. Enrile’s vast wealth, considering that he has been in public service since the Marcos presidency, is hard to explain.

Those who voted to grant bail to Senator Enrile were Justices Presbitero J. Velasco, Jr., Teresita J. Leonardo de Castro, Arturo D. Brion, Diosdado M. Peralta, Mariano C. del Castillo, Jose P. Perez and Jose C. Mendoza, all appointees of former President Arroyo. Justice Bienvenido L. Reyes recused. The dissenters were Justices Antonio T. Carpio, Estela M. Perlas-Bernabe, Marvic Mario Victor F. Leonen and Chief Justice Maria Lourdes A. Sereno. Although appointed by President Gloria Macapagal Arroyo, Justice Carpio has been generally independent in his voting behavior from the majority.

Already there is understandable hue and cry from various quarters, including the radical left and families of senior citizens for equally compassionate release of their own, who are “languishing in jail”. How will the Supreme Court deal with these issues?

The symbol for justice shows a blindfolded Lady Justice holding a balanced scale, indicating all are equal before the law. Shall we therefore release all senior citizens from jail, whatever their crimes? The precedent has been set. No one should be more equal than others.

When Mr. Leonen’s dissenting opinion found its way into the media, Mr. Bersamin wailed that the “vow of silence had been violated”; he did not question Mr. Leonen’s opinion. I say, to Hades with the “vow of silence.”

Supreme Court justices, like other government officials must be accountable to the people, under our Constitution.

This majority of the Supreme Court justices, more or less, is the same one that voted to release 20% of sequestered San Miguel shares to Eduardo “Danding” M. Cojuangco Jr. justified in the same Bersamin’s ponencia that there was no evidence that Mr. Cojuangco was a Marcos crony. This, despite the fact that Mr. Cojuangco was so tied up with Marcos’ interests that he rode on the same plane that flew the Marcoses to Honolulu in 1986. This was the statement which then Associate Justice Conchita Carpio-Morales, in her dissenting opinion referred to as “the biggest joke of the century.” Mr. Cojuangco speedily sold these shares to his partner, Ramon S. Ang. Joey Faustino, Executive Director of the Coconut Industry Reform Movement has asked for an investigation of Lucas Bersamin for “possible gross ignorance of the law, knowingly rendering an unjust judgment and other alleged violations of ethical standards.”

This majority also legitimized the midnight appointment of the disgraced and impeached Chief Justice Renato C. Corona against the law barring presidential appointments 60 days before the next presidential election. Sec. 15, Article VII of the 1987 Constitution provides that “Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service”

Justice Teresita Leonardo de Castro, who while still at the Sandiganbayan presided over the conviction of former president Joseph Estrada for plunder, unbelievably voted with the majority, as no less than the ponencia against disqualification of Estrada as Mayor of Manila.

This is also the Supreme Court that has flip-flopped on its decision regarding the case for illegal dismissal won by the Flight Attendants and Stewards Association of the Philippines on which the Supreme Court reversed itself. Motion for Reconsideration for this has been pending for years. Meanwhile, ownership of Philippine Airlines has returned to Lucio Tan, under whose management the illegal dismissal was alleged to have been committed.

Alleluia, during the next administration, all of these justices, who have comprised the majority, will retire. We should joyously clap our hands and say goodbye, good riddance to the whole lot. But who will take their places?

The next president will appoint their replacements. This is a question that has to be confronted by the voters.

What kind of president should we elect? The president will have enormous powers, not only over the choice of his Cabinet, but crucially, in the choice of the incoming justices of the Supreme Court.

In fact, the next president will also choose the next Ombudsman because current Ombudsman Conchita Carpio-Morales will retire in 2018. Whence comes such another?
Our choice of the next president must go beyond popularity. We must consider the candidates’ values and unquestionable, mature judgment of character and the facts, which will determine the kind of justice system we shall have for six years.

Will the next Supreme Court bring us closer to a civilized system of justice based on the law; or will we suffer a tragic setback? This matter has to be discussed and considered seriously by the leaders of business, academe and civil society.

Teresa S. Abesamis is a former professor at the Asian Institute of Management and an independent development management consultant.
tsabesamis0114@yahoo.com

x x x."

↧

Outraged IBP demands justice for slain colleagues | News | GMA News Online

September 4, 2015, 3:32 am

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See - Outraged IBP demands justice for slain colleagues | News | GMA News Online

"x x x.

The Integrated bar of the Philippines is "outraged beyond words" at recent attacks against lawyers and a judge that have left two of their colleagues dead.

In a statement to the press, IBP national president Rosario Setias-Reyes decried the Aug. 13 ambush on lawyers Amelie Ocañada-Alegre and Briccio Joseph Boholst, who were shot in Mandaue City in Cebu. Alegre died in the attack, while Boholst and an accountant who was with them were injured.

Local police believe Alegre was the target of the killing, which they said was done by motorcycle-riding gunmen.

The IBP also condemned the killing of Aurora Regional Trial Court Judge Jude Erwin Ulep Alaba, who was shot near his office on Monday. Prior to his death, Alaba had been handling sensitive cases including land disputes and cases involving illegal drugs, the Supreme Court said earlier this week.

"The incidents are not new to the legal profession. To date, more than 200 of our lawyers, including judges and prosecutors, [have] died by the hands of criminals who have no care and respect for the Rule of Law. Most of these crimes have remained unsolved," the IBP said.

It said the government must use stronger measures to deter further attacks, adding the attacks are "not only a sacrilegious affront to all religions but a mortal affront to the power and honor of the government."

The IBP said it will provide legal assistance to the families of the victims.

"We hereby assure the families of Attorney Alegre and Judge Alaba, their friends and the public of our active and full support to the police authorities in their efforts to find and bring the culprits to the bar of justice," the group also said. — JDS, GMA News

x x x."

- See more at: http://www.gmanetwork.com/news/story/535640/news/nation/outraged-ibp-demands-justice-for-slain-colleagues#sthash.qF7tMHIu.dpuf

↧

Outraged IBP demands justice for slain colleagues | News | GMA News Online

September 4, 2015, 3:32 am

≫ Next: Enrile bail a picture of ‘injustice, inequality, partiality and preference’ – Ombudsman | Inquirer News

≪ Previous: Outraged IBP demands justice for slain colleagues | News | GMA News Online

See - Outraged IBP demands justice for slain colleagues | News | GMA News Online

"x x x.

- See more at: http://www.gmanetwork.com/news/story/535640/news/nation/outraged-ibp-demands-justice-for-slain-colleagues#sthash.qF7tMHIu.dpuf

↧

Enrile bail a picture of ‘injustice, inequality, partiality and preference’ – Ombudsman | Inquirer News

September 7, 2015, 10:42 am

≫ Next: BIR loses P2.7-B tax case against Lucio Co’s Puregold | Inquirer Business

≪ Previous: Outraged IBP demands justice for slain colleagues | News | GMA News Online

See - Enrile bail a picture of ‘injustice, inequality, partiality and preference’ – Ombudsman | Inquirer News

"x x x.

The Ombudsman pointed out that the high court should have stayed within the bounds of the 1987 Constitution.

Article III Section 13 of the Constitution provides that “all persons except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction be bailable…”

The Ombudsman appeal said Enrile’s case, which is plunder, falls under the exception because it is punishable by reclusion perpetua or up to 40 years imprisonment.

“Since the petitioner is charged with a grave crime, he is, as a general rule, ‘not bailable.’ Necessarily, and by operation of the 1987 Constitution, he cannot be admitted to bail as a matter of right, unless it can be determined that evidence of his guilt is not strong,” the Ombudman’s motion for reconsideration stated.

However, the Ombudsman said the decision has failed to acknowledge such factors and even abandoned its previous rulings where it admonished judges for not following the guidelines it laid down in determining whether to grant bail or not, such as conducting an evidentiary hearing.

“After affirming previous judicial decisions stating that persons accused of ‘not bailable’ offenses can only be provisionally released after a previous factual and judicial determination that evidence of their guilt is not strong, the Honorable Supreme Court proceeded to resolve the petition on grounds completely alien to matters affecting evidence of guilt,” the Ombudsman said.

The Ombudsman added that the high court also disregarded the equality clause of the Constitution when it applied a different set of standards in allowing Enrile to post bail.

“With all due respect, the Honorable Supreme Court should have resolved the petition consistent with the constitutional framework on the right to bail that applies equally to each and every other accused Juan and Juana dela Cruz in this jurisdiction.”

The Ombudsman added that Enrile, in his petition, never invoked his age or health which was the high court’s main consideration when it allowed him to post bail.

“In fact, he [Enrile] never filed a petition for bail. His ‘motion to fix bail’ which the Honorable Sandiganbayan dismissed for prematurity was anchored on very different grounds,” the Ombudsman said, adding that Enrile’s health was raised only when the Senator made a bid to be transferred to the Philippine National Police General Hospital.

Also, the Ombudsman added that the “humanitarian consideration” used by the high court can be used by future litigants as a ground for the granting of bail.

The high court, however, failed to provide a guideline.

“The lack of standards for the application of the rule laid down in the Decision makes its doctrinal value uncertain and unpredictable as far as other litigants in the future are concerned.”

“For other accused similarly situated, their pleas would have to be evaluated and resolved on a case-to-case basis. The jurisprudence, as to them would have to evolve first. In the meantime, petitioner [Enrile] has already reaped the benefits. Once again, he has been singled out for the kind of extraordinary, unprecedented and preferential treatment that the Equal Protection Clause guards against,” the Ombudsman added. JE

x x x."

Read more: http://newsinfo.inquirer.net/719985/enrile-bail-a-picture-of-injustice-inequality-partiality-and-preference-ombudsman#ixzz3l4l9zdzi
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↧

BIR loses P2.7-B tax case against Lucio Co’s Puregold | Inquirer Business

September 7, 2015, 11:11 am

≫ Next: Business Registration Steps

≪ Previous: Enrile bail a picture of ‘injustice, inequality, partiality and preference’ – Ombudsman | Inquirer News

See - BIR loses P2.7-B tax case against Lucio Co’s Puregold | Inquirer Business

"x x x.

“It is significant to note that there is nothing in Section 1 of Republic Act 9399 (Act Declaring a One-time Amnesty on Certain Tax and Duty Liabilities, Inclusive of Fees, Fines, Penalties, Interest and Other Additions, Incurred by Certain Business Enterprises Operating Within the Special Economic Zones and Freeports) that excludes Section 131 (A) of the 1997 NIRC from the amnesty. In fact, there is no mention at all of any tax or duty imposed by the 1997 NIRC as being specifically excluded from the coverage of the tax amnesty,” the high court said.

“If Congress intended Section 131 of the 1997 NIRC to be an exception to the general grant of amnesty given under RA 9399, it could have easily so provided in either the law itself or even the implementing rules. In implementing tax amnesty laws, the CIR cannot now insert an exception where there is none under the law. And this court cannot sanction such action,” the high court added.

The BIR went to the Supreme Court after the Tax Court en banc upheld the decision of its 2nd division which states that Puregold is entitled to, and properly availed of, the tax amnesty under RA 9399,

Puregold is engaged in the sale of various consumer goods within the Clark Special Economic Zone (CSEZ) and operates in-store under the authority and jurisdiction of Clark Development Corporation (CDC) and CSEZ.

BIR, in its appeal also argued that Puregold is not entitled to the benefits under RA 9399 because its principal place of business is in Metro Manila as shown in its articles of incorporation.

But the high court pointed out that the BIR failed to challenge Puregold’s eligibility to avail of the tax amnesty under R.A. 9399 while the case is with the Tax Court.

Still, the high court cited documents showing that Puregold is also doing business inside the special economic zone.

“Clearly, the location of Puregold’s principal office is not, standing alone, an argument against its availment of the tax amnesty under RA 9399,” the high court said.

x x x."

Read more: http://business.inquirer.net/198727/bir-loses-p2-78b-tax-case-against-puregold-duty-free-store#ixzz3l4sQCBWZ
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↧

Business Registration Steps

September 7, 2015, 11:19 am

≫ Next: Immunity from suit a mere superstition | Opinion, News, The Philippine Star | philstar.com

≪ Previous: BIR loses P2.7-B tax case against Lucio Co’s Puregold | Inquirer Business

See - Business Registration Steps at DTI

"x x x.

For Single Proprietorship

STEP 1

Business Name Registration Certificate
Visit Department of Trade & Industry (DTI) Provincial Office or log on to www.bnrs.dti.gov.ph.
Validity: 5 years
Requirements:

Accomplished Business Name Registration Form [Single Proprietorship/Partnership]
Tax Identification Number (TIN)
List of five business names ranked according to preference
Registration fee of P 300.00

STEP 2

Mayor’s / Business Permit
Local Municipality where the business is located
Validity: 1 year
Requirements:

Accomplished Business Permit Application Form
DTI-Business Name Certificate
Sketch of he business location
Fire Safety Inspection Clearance
Sanitary Permit (from City Health Officer)
Barangay Clearance
Lease Contract
2 pcs 2×2 colored ID picture
Registration fee, the amount of which depends on the type of the business

STEP 3

Tax Identification Number (TIN)
Bureau of Internal Revenue (BIR) National Office
Agham Rd., Diliman, Quezon City
Trunkline: 981-7000; 981-8888
Email: contact_us@cctr.bir.gov.ph
Website: www.bir.gov.ph

STEP 4

Social Security System (SSS) Certificate
SSS Loans and Investment Office
SSS Building, East Avenue
Diliman, Quezon City
Tel: 920-6401; 920-6446
Email: member_relations@sss.gov.ph
Website: www.sss.gov.ph

Requirements:

Accomplised R1 form
DTI Business Permit
Mayor’s Permit

STEP 5

Department of Labor and Employement (DOLE) Registration (with 5 or more employees)
DOLE-Labor Standard and Enforcement Division
2/F Dy International Bldg.
San Marcelino cor. Gen. Malvar St. ,Malate, Manila
Hotline: 527-8000 Tel: 339-2013
Email: osec@dole.gov.ph
Website: www.dole.gov.ph

Requirements:

Accomplished Rule 1020 form
Lay-out business location
Vicinity Map

For Partnership

STEP 6a

Securities and Exchange Commission (SEC) Certificate
SEC Building, EDSA, Grenhills
Mandaluyong City
Tel: 726-0931 to 39
Email: mis@sec.gov.ph
Website: www.sec.gov.ph
Onine registration: iregister.sec.gov.ph/MainServlet

Requirements:

Verification Slip Form (re: proposed name)
Accomplished Registration Data Sheet
Articles of partnership
Written Undertaking to Change Corporation Name
If the contributed capital is in the form of property, additional requirement is needed:
- Deed of Assignment executed by the stockholder who is the owner

For Corporation

STEP 6b

SEC (see above address)

Requirements:

Articles of Incorporation and Buy-laws
Verification Slip Form (re: proposed name)
Accomplished Registration Data Sheet
Treasurer’s Affidavit
Bank Certificate of Deposit
Authority to verify bank accounts
Written Undertaking to Change Corporation Name when necessary
Subscribers Information Sheet
If paid-up capital is a property, submit the following additional requirements:
- Statement of Assets and Liabilities
- Deed of Assignment executed by the stockholder who is the owner of the property in favor of the corporation. If the property contributed is a building or a parcel of land, the deed must be presented to the register of Deeds for registration.
- If the property being contributed is a parcel of land, submit detailed list of the parcel of land showing the OCT/TCT numbers, registered owner, lot and block number, area, location and encumbrances, if any
Registration fee of P360.00

Other Agencies

Depending on the type of products they manufacture or handle and on their market orientation, certain firms are required by law to register with other government agencies. The following is a list of regulatory bodies and industries / business they regulate:

a. For those engaged in the export of coconuts and coconut by-products

The Philippine Coconut Authority
Export Division
PHILCOA Bldg., Quezon Memorial Circle
Diliman, Quezon City
Tel. No. 928.4501
Email: pca_cpo@yahoo.com
Website: www.pca.da.gov.ph

b. For all manufacturers of garments and textile for exports

Garment and Textile Export Board (GTEB)
New Solid Building
4/F New Solid Bldg., 357 Sen. Gil Puyat Avenue, Makati City
Tel. No. 890.4651 to 52

c. For rice, corn and flour dealers

National Food Authority (NFA)
Regulatory Division
Matimias Building (infront of Q.I)
101 E. Rodriguez Sr. Avenue, Quezon City
Tel. No. 712.1768
Email: nfa_admin@nfa.gov.ph
Website: www.nfa.gov.ph

d. For processors and traders of fibers and fiber products.

Fiber Industry Development Authority (FIDA)
License Division
Asia Trust Bank Annex Building
1424 Quezon Avenue, Quezon City
Tel. No. 373.7495 / Fax No. 373.9244
Email: fida@pacific.net.ph
Website: www.fida.da.gov.ph

e. For those engaged in the export of fish and fish products other aquatic products.

Bureau of Fisheries and Aquatic Resources (BFAR)
Licensing and Regulatory Division
860 Arcadia Building, Quezon Avenue, Quezon City
Tel. No. 372.5046
Email:info@bfar.da.gov.ph
Website: www.bfar.da.gov.ph

f. For exporters of animals and animal by-product

Bureau of Animal Industry Animal Health Division
BAI Visayas Avenue, Diliman, Quezon City
Tel. No. 928.2836 / 928.2778
Email:dir.bai@manila-online.net
Website: www.bai.da.gov.ph

Bureau of Plant Industry
692 San Andres St., Malate, Manila
Tel. No. 525.7313
Email: cu.bpi@da.gov.ph
Website: www.bpi.da.gov.ph

h. For exporters of Forest Products (e.g. logs, number products, plywood, etc.)

Bureau of Forest Development
Forest Management Bureau
Visayas Avenue, Diliman, Quezon City
Tel. No. 927.6229
Email: fmbdenr@mozcom.com
Website: www.forestry.denr.gov.ph

i. For those engaged in the production or export of flue-cured Virginia-type tobacco, Burley tobacco and Turkish/Oriental tobacco products.

Philippine Virginia Tobacco Administration
Market Development and Regulation Department
Scout Reyes Street cor., Panay Avenue
Diliman, Quezon City
Tel. No. 372.3186
Email webgroup1@da.gov.ph
Website: www.da.gov.ph

j. For commodity clearance for producers, manufacturers or exporters, whose product quality after due inspection, sampling and testing, is found to meet established standards.

DTI â€“ Bureau of Product Standards (BPS)
3rd floor, Trade and Industry Building
361 Sen. Gil Puyat Avenue, Makati City
Tel. No. 751.0384
Email: bps@dti.dti.gov.ph
Website: www.bps.dti.gov.ph

k. For firms who want to register their patents and trademarks.

DTI-Intellectual Property Office
361 IPO Building, Sen. Gil J. Puyat
Avenue, Makati City
Tel. No. 752.5450
Email: mail@ipophil.gov.ph ; dittb@ipophil.gov.ph
Website: www.ipophil.gov.ph

l. For business interested to tie up with export oriented firms as sub-contractors/suppliers provided they fall under any of the following sectors: garments and handwoven fabrics, gifts and housewares, furniture and fixtures, footware and leather goods, fresh and processed foods and jewelry.

National Subcontractors Exchange (SUBCONEX)
12/F Trafalgar Plaza., 105 H.V. Dela Costa St.,
Salcedo Village, Makati City
Tel. No. 811.8231

m. For enterprises engaged directly or directly in the service, repair and/or maintenance of vehicles, engines and engineering works, electrical, electronics, air-conditioning and refrigeration, office machines and data processing, equipment, medical and dental equipment including the technical personnel like mechanics and technicians employed by such firms.

DTI- National Capital Region (DTI – NCR)
Ground Floor, Trade and Industry Building
361 Sen. Gil Puyat Avenue, Makati City
Tel. No. 7510.384

n. For those engaged in the production of food, drugs and cosmetic products.

Bureau of food and Drugs (BFAD)
Civic Drive, Filinvest Corporate City
Alabang, Muntinlupa City
Tel. Nos. +632-8070721 / +632-8425606
Email: bfad@bfad.gov.ph
Website: www.bfad.gov.phRelated

Starting a Manpower Agency (Primer)February 9, 2013In "SME"

Business Registration Requirements for a Manpower AgencyOctober 18, 2013In "SME"

Guide to Starting a Pawnshop BusinessOctober 29, 2012In "SME"
x x x."

↧

Immunity from suit a mere superstition | Opinion, News, The Philippine Star | philstar.com

September 7, 2015, 11:43 am

≫ Next: Prohibition under Rule 65

≪ Previous: Business Registration Steps

See - Immunity from suit a mere superstition | Opinion, News, The Philippine Star | philstar.com

"x x x.

• Saguisag: Immunity is superstition

THEN, to my pleasant surprise another email dropped in, this time from Rene AV Saguisag, the well-known human rights lawyer whose views I respect and whose prose I envy.

I hope Rene has forgotten that he has not been paid for his opinion pieces, some of them sounding like obiter dicta, contributed to The Filipino Times, an opposition paper that I published in San Francisco while in self-exile in the Bay Area at the height of Marcosian martial rule.

Rene said in a clipped note over the weekend: “Yup, immunity from suit of the Prez is a superstition. A jurassic ‘Marcosian relic,’ as you put it in your column today, 9/6, Sunday.

“I asked my studes yesterday, Saturday, in San Beda Mendiola to look for the basis of the claim in the Consti. None, many of them correctly answered.

“If P-Noy is charged with rape, it would be funny for him to claim immunity. Rape is not part of his job description. So, it would depend on what is complained about. If there is a connection to the description, even if only colorably, immune.

“But engaging, say, in a duel is not, and Veep Aaron Burr was prosecuted for killing Alexander Hamilton in a duel.

“More recent examples involved JFK, Nixon and Clinton, who had to settle cases when immunity was not recognized.

“JFK had to pay $17,500 to a Mississippi State Senator, Hugh Lee Bailey, for a vehicular incident that made it problematic for him to ride a donkey. Nixon, $140,000 to avoid trial in a case filed by Ernest Fitzgerald. Clinton, $850,000, for Paula Flowers to drop her suit.”

x x x."

↧

Prohibition under Rule 65

September 8, 2015, 4:16 am

≫ Next: Extra Judicial Settlement – Facts to Know | Robert G. Sarmiento

≪ Previous: Immunity from suit a mere superstition | Opinion, News, The Philippine Star | philstar.com

See - Remedial Law Doctrines

"x x x.

The standard under Rule 65 for the issuance of the writ of prohibition is "grave abuse of discretion" and not mere "abuse of discretion." The difference is not a simple matter of semantics. The writs governed by Rule 65 – certiorari, mandamus, and prohibition – are extraordinary remedies designed to correct not mere errors of judgment (i.e., in the appreciation of facts or interpretation of law) but errors of jurisdiction (i.e., lack or excess of jurisdiction). Unlike the first category of errors which the lower tribunal commits in the exercise of its jurisdiction, the latter class of errors is committed by a lower tribunal devoid of jurisdiction or, alternatively, for exercising jurisdiction in an "arbitrary or despotic manner." By conflating "abuse of discretion" with "grave abuse of discretion," the Court of Appeals failed to follow the rigorous standard of Rule 65, diluting its office of correcting only jurisdictional errors.

https://www.facebook.com/mvplawoffice?ref=hl

x x x."

↧

Extra Judicial Settlement – Facts to Know | Robert G. Sarmiento

September 9, 2015, 11:41 am

≫ Next: Lucio Co and Puregold; 2 SC justices tagged 9th richest man in PH as smuggler - The Manila Times OnlineThe Manila Times Online

≪ Previous: Prohibition under Rule 65

See - Extra Judicial Settlement – Facts to Know | Robert G. Sarmiento

"x x x.

Extrajudicial Settlement of Estate in the Philippines

Settlement of an estate need not undergo judicial proceedings all the time. Rule 74, Section 1 of the Rules of Court allows the extrajudicial settlement of estate by agreement among the heirs. Said Rule states:

Sec. 1. Extrajudicial settlement by agreement between heirs. – If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under Section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent.

The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.

However, extrajudicial settlement of estate cannot be resorted to every time. There are conditions which must be satisfied such as:

1. The decedent left no will
2. The decedent has no debts or his debts have been fully paid.
3. The heirs are all of legal age or the minors are duly represented by their judicial or legal representatives.
4. A public instrument is duly executed by the heirs and filed with the Register of Deeds.
Extrajudicial settlement of estate is often recommended to expedite the transfer of properties of the decedent to his heirs. This is in view of the fact that judicial settlement of estate takes years before the case is concluded. Furthermore, this is more adversarial and is resorted to when the heirs disagree on the properties to be partitioned and the corresponding shares of the respective heirs.

An extrajudicial settlement of estate is done by executing an “Extrajudicial Settlement Among Heirs”. This is a legal document specifying:

1. Compliance with the legal conditions for an extrajudicial settlement
2. Description of the properties to be extrajudicially settled (title number, value, location, lot size, technical description, etc.)
3. Nature of the property (if conjugal property)
4. Name of the heirs
5. How the properties shall be divided amongst the heirs.
6. Posting of a bond if there is personal property involved.
7. Undertaking that the Deed will be published in a newspaper of general circulation once a week for 3 consecutive weeks.It must be noted that the Deed of Extrajudicial Settlement must be published in a newspaper of general circulation once a week for 3 consecutive weeks. Kindly consult with the Register of Deeds where the property is located for the listing of these newspapers.

Before filing the Deed of Extrajudicial Settlement with the Register of Deeds where the land is located, it is necessary that the estate taxes be paid first. Under Philippine laws, estate tax is defined as a tax on the right of the deceased person to transmit his estate to his lawful heirs and beneficiaries at the time of death and on certain transfers, which are made by law as equivalent to testamentary disposition. According to the Bureau of Internal Revenue, estate tax is not a tax on property but rather imposed on the privilege of transmitting property upon the death of the owner.

It bears great emphasis that the Estate Tax Return must be filed within six (6) months from the decedent’s death. The deadline may be extended by the Commissioner of the BIR, in meritorious cases, not exceeding thirty (30) days. It must be noted that the estate itself is assigned its own Tax Identification Number (TIN). The Estate Tax Return is filed with Revenue District Office (RDO) having jurisdiction over the place of residence of the decedent at the time of his death. If the decedent has no legal residence in the Philippines, then the return can be filed with:

1. The Office of the Revenue District Officer, Revenue District Office No. 39, South Quezon City; or

2. The Philippine Embassy or Consulate in the country where decedent is residing at the time of his death.

Furthermore, the estate tax shall be paid at the time the return is filed. However, upon request and if the Commissioner of the BIR finds that payment on the due date of the Estate Tax or of any part thereof would impose undue hardship upon the estate or any of the heirs, he may extend the time for payment of such tax or any part thereof not to exceed five (5) years, in case the estate is settled through the courts or two (2) years in case the estate is settled extra-judicially. If an extension is granted, the BIR Commissioner may require a bond in such amount, not exceeding double the amount of tax, as it deems necessary.

The estate tax is based on the value of the net estate as follows:

1. If not over P200,000, it is exempt
2. If over P200,000 but not over P500,000, then tax is 5% of the excess over P200,000
3. If over P500,000 but not over P2,000,000, then tax is P15,000 PLUS 8% of the excess over P500,000
4. If over P2,000,000 but not over P5,000,000, then tax is P135,000 PLUS 11% of the excess over P2,000,000
5. If over P5,000,000 but not over P10,000,000, then tax is P465,000 PLUS 15% of the excess over P5,000,000
6. If over P10,000,000, then tax is P1,215,000 PLUS 20% of the excess over P10,000,000
The basis shall be the net estate. That means that there are allowable deductions on the estate. These deductions include funeral expenses, share of the surviving spouse, medical expenses incurred by the decedent within 1 year prior to his death, family home deduction of not more than P1,000,000.00, standard deduction of P1,000,000.00, among others. It is best to consult with an accountant on this matter to determine the accurate estate tax.

For extrajudicial settlement of estate, the following documents must be submitted with the BIR:

1. Notice of Death
2. Certified true copy of the Death Certificate
3. Deed of Extra-Judicial Settlement of the Estate
4. Certified true copy of the land titles involved
5. Certified true copy of the latest Tax Declaration of real properties at the time of death
6. Photo copy of Certificate of Registration of vehicles and other proofs showing their correct value
7. Photo copy of certificate of stocks
8. Proof of valuation of shares of stocks at the time of death
a. For listed stocks – newspaper clippings or certification from the Stock Exchange
b. For unlisted stocks – latest audited Financial Statement of issuing corporation with computation of book value per share
9. Proof of valuation of other types of personal property
10. CPA Statement on the itemized assets of the decedent, itemized deductions from gross estate and the amount due if the gross value of the estate exceeds two million pesos
11. Certification of Barangay Captain for claimed Family Home
Other documents may also be requested by the BIR.

After the estate taxes have been paid, the heirs may proceed to the Register of Deeds where the land is situated. If the Register of Deeds would allow it, the filing with the BIR and Register of Deeds may be simultaneous. The proof of payment of the estate tax, Affidavit of Publication of the Deed, the Deed of Extrajudicial Settlement of Estate are the basic requirements to be submitted to the Register of Deeds. When all pertinent documents are submitted, the Register of Deeds will correspondingly issue the Transfer of Certificates of Title to the proper heirs.

On a final note, it must be borne in mind that the extrajudicial settlement can be nullified if it was done in fraud of creditors or other rightful heirs. Furthermore, this can open the erring heirs to criminal liabilities.

x x x."

↧

Lucio Co and Puregold; 2 SC justices tagged 9th richest man in PH as smuggler - The Manila Times OnlineThe Manila Times Online

September 11, 2015, 2:37 pm

≫ Next: Republic Act No. 10679 - “Youth Entrepreneurship Act”

≪ Previous: Extra Judicial Settlement – Facts to Know | Robert G. Sarmiento

See - 2 SC justices tagged 9th richest man in PH as smuggler - The Manila Times OnlineThe Manila Times Online

"x x x.

Two Justices of the Supreme Court (SC) have tagged Lucio Co’s Puregold Duty Free Inc. (Puregold) of supposedly smuggling alcohol and tobacco products to evade tax liabilities amounting to P2.78 billion from January 1998 to May 2004.

“If this is not smuggling, I do not know what it is,” Associate Justice Martin Villarama, Jr. said in his separate dissenting opinion on the case which was joined by Associate Justice Jose C. Mendoza.

Villarama lambasted the 17-page majority ruling written by Associate Justice Presbitero J. Velasco Jr. dismissing the appeal of the Bureau of Internal Revenue (BIR) and affirmed the Court of Tax Appeals’ (CTA) decision clearing Puregold of tax liabilities.

He even suggested that the case against the business tycoon must be elevated to the SC en banc and not just the SC Third Division which voted 3-2 in favor of Co.

Villarama also wanted the case to be referred to the SC en banc since the case has huge impact in the economy.

“Should any motion for reconsideration be filed, the same be referred to the Banc as the subject matter herein may have a huge financial impact on businesses thus affecting the country’s welfare,” he said.

Co, along with his wife Susan ranked as the ninth richest man in the Philippines, according to the Forbes Magazine with net worth of US$ 2.3 billion and ranked no. 810 in the world.

The SC Third Division led by Velasco denied the petition filed by the BIR seeking the reversal of the May 19, 2012 and July 18, 2012 decision and resolution issued by the CTA, respectively.

Puregold operates in-store under the authority and jurisdiction of the Clark Development Corporation (CDC) and the Clark Special Economic Zone (CSEZ) and engaged in the sale of various consumer goods within CSEZ.

In its previous decisions, the CTA ruled that Puregold is entitled to, and properly availed of, the tax amnesty under Republic Act No. 9399, or an “Act Declaring a Onetime Amnesty on Certain Tax and Duty Liabilities, Inclusive of Fees, Fines, Penalties, Interest and Other Additions, Incurred by Certain Business Enterprises Operating Within the Special Economic Zones and Free Ports.”

BIR Commissioner Kim Jacinto-Henares went to the SC when the CTA ruled against them.

However, in affirming the CTA ruling, the SC in its June 22, 2015 ruling, dismissed Henares’ argument that under Section 131 (a) of the 1997 National Internal Revenue Code (NIRC), only importations of distilled spirits, wines and cigarettes to the free ports, among others, are exempt from payment of value added tax (VAT) and excise taxes.

Concurring with the Velasco ruling were Associate Justices Diosdado M. Peralta and Bienvenido L. Reyes while Associate Justice Jose C. Mendoza dissented with Villarama.

According to Villarama, “the grant of a tax amnesty, similar to a tax exemption, must be construed strictly against the taxpayer and liberally in favor of the taxing authority.”

“Taxes being the lifeblood of the nation through which the government agencies continue to operate and with which the State effects its functions for the welfare of its constituents, the present amnesty tax law must be strictly construed against herein respondent which claims tax incentives granted to it by mere presidential proclamation,” Villarama said.

“It is likewise settled that taxes are the lifeblood of the government and their prompt and certain availability is an imperious need,” he added.

In his dissent, Villarama said that “Puregold Duty Free, Inc. be ordered to pay P2,780,610,174.51 deficiency VAT and excise taxes inclusive of surcharge and interest, plus 20% deficiency interest computed from June 23, 2008 until full payment thereof pursuant to Section 249 (C) of the 1997 National Internal Revenue Code, as amended.” PNA

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