TAXATION_FULLCASES

FIRST DIVISION; [G.R. No. 156252. June 27, 2006.]

COCA-COLA BOTTLERS PHILIPPINES, INC., petitioner, vs. CITY OF

MANILA, LIBERTY M. TOLEDO — City Treasurer and JOSEPH
SANTIAGO — Chief, Licensing Division, respondents.

DECISION

CHICO-NAZARIO, J p: Before Us is a Petition for Review on Certiorari under Rule 45 of the

1997 Rules of Civil Procedure, assailing the Order 1 of the Regional Trial Court (RTC) of Manila,
Branch 21, dated 8 May 2002, dismissing petitioner's Petition for Injunction, and the Order 2 dated
5 December 2002, denying petitioner's Motion for Reconsideration.

Petitioner Coca-Cola Bottlers Philippines, Inc. is a corporation engaged in the business of

manufacturing and selling beverages and maintains a sales office located in the City of Manila.

On 25 February 2000, the City Mayor of Manila approved Tax Ordinance No. 7988, otherwise
known as "Revised Revenue Code of the City of Manila" repealing Tax Ordinance No. 7794
entitled, "Revenue Code of the City of Manila." Tax Ordinance No. 7988 amended certain sections
of Tax Ordinance No. 7794 by increasing the tax rates applicable to certain establishments operating
within the territorial jurisdiction of the City of Manila, including herein petitioner.

Aggrieved by said tax ordinance, petitioner filed a Petition 3 before the Department of Justice
(DOJ), against the City of Manila and its Sangguniang Panlungsod, invoking Section 187 4 of the
Local Government Code of 1991 (Republic Act No. 7160). Said Petition questions the
constitutionality or legality of Section 21 of Tax Ordinance No. 7988. According to petitioner:
STIEHc

Section 21 of the Old Revenue Code of the City of Manila (Ordinance No. 7794, as
amended) was reproduced verbatim as Section 21 under the new Ordinance except
for the last paragraph thereof which reads: "PROVIDED, that all registered
businesses in the City of Manila that are already paying the aforementioned tax
shall be exempted from payment thereof", which was deleted; that said deletion
would, in effect, impose additional business tax on businesses, including herein
petitioner, that are already subject to business tax under the other sections,
specifically Sec. 14, of the New Revenue Code of the City of Manila, which
imposition, petitioner claims, "is beyond or exceeds the limitation on the taxing
power of the City of Manila under Sec. 143 (h) of the LGC of 1991;and that
deletion is a palpable and manifest violation of the Local Government Code of
1991, and the clear mandate of Article X, Sec. 5 of the 1987 Constitution, hence
Section 21 is "illegal and unconstitutional."

On 17 August 2000, then DOJ Secretary Artemio G. Tuquero issued a Resolution declaring Tax
Ordinance No. 7988 null and void and without legal effect, the pertinent portions of which read:

After a judicious scrutiny of the records of this case, in the light of the pertinent
provisions of the Local Government Code of 1991, this Department finds for the
petitioner.

The Local Government Code of 1991 provides:

"Section 188. Publication of Tax Ordinances and Revenue Measures. — Within

ten (10) days after their approval, certified true copies of all provincial, city and
municipal tax ordinances or revenue measures shall be published in full for three
 (3) consecutive days in a newspaper of local circulation; Provided, however, that
in provinces, cities, and municipalities where there are no newspapers or local
circulations the same may be posted in at least two (2) conspicuous and publicly
accessible places." (R.A. No. 7160) (stress supplied)

Upon the other hand, the Rules and Regulations Implementing the Local
Government Code of 1991, insofar as pertinent, mandates:

"Art. 277. Publication of Tax Ordinances and Revenue Measures. — (a) within ten
(10) days after their approval, certified true copies of all provincial, city and
municipal tax ordinances or revenue measures shall be published in full for three
(3) consecutive days in a newspaper of local circulation provided that in
provinces, cities and municipalities where there are no newspapers of local
circulation, the same may be posted in at least two (2) conspicuous and publicly
accessible places.

If the tax ordinances or revenue measure contains penal provisions as authorized

under Art. 279 of this Rule, the gist of such tax ordinance or revenue measure
shall be published in a newspaper of general circulation within the province,
posting of such ordinance or measure shall be made in accessible and conspicuous
public places in all municipalities and cities of the province to which the
sanggunian enacting the ordinance or revenue measure belongs.

xxx xxx xxx."

(emphasis ours)

It is clear from the above-quoted provisions of R.A. No. 7160 and its implementing
rules that the requirement of publication is MANDATORY and leaves no choice.
The use of the word "shall" in both provisions is imperative, operating to impose a
duty that may be enforced (Soco v. Militante, 123 SCRA 160, 167; Modern Coach
Corp. v. Faver 173 SE 2d 497, 499).

Its essence is simply to inform the people and the entities who may likely be
affected, of the existence of the tax measure. It bears emphasis, that, strict
observance of the said procedural requirement is the only safeguard against any
unjust and unreasonable exercise of the taxing powers by ensuring that the
taxpayers are notified through publication of the existence of the measure, and are
therefore able to voice out their views or objections to the said measure. For, after
all, taxes are obligatory exactions or enforced contributions corollary to taking of
property.

xxx xxx xxx

In the case at bar, respondents, by its failure to file their comments and present
documentary evidence to show that the mandatory requirement of law on
publication, among other things, has been met, may be deemed to have waived its
right to controvert or dispute the documentary evidence submitted by petitioner
which indubitably show that subject tax ordinance was published only once, i.e., on
the May 22, 2000 issue of the Philippine Post. Clearly, therefore, herein
respondents failed to satisfy the requirement that said ordinance shall be published
for three (3) consecutive days as required by law.

xxx xxx xxx

In view of the foregoing, we find it unnecessary to pass upon the other issues raised
by the petitioner.
 WHEREFORE, premises considered, Tax Ordinance No. 7988 of the City of
Manila is hereby declared NULL and VOID and WITHOUT LEGAL EFFECT for
having been enacted in contravention of the provisions of the Local Government
Code of 1991 and its implementing rules and regulations. 5

The City of Manila failed to file a Motion for Reconsideration nor lodge an appeal of said
Resolution, thus, said Resolution of the DOJ Secretary declaring Tax Ordinance No. 7988 null and
void has lapsed into finality. SDHCac

On 16 November 2000, Atty. Leonardo A. Aurelio wrote the Bureau of Local Government Finance
(BLGF) requesting in behalf of his client, Singer Sewing Machine Company, an opinion on whether
the Office of the City Treasurer of Manila has the right to enforce Tax Ordinance No. 7988 despite
the Resolution, dated 17 August 2000, of the DOJ Secretary. Acting on said letter, the BLGF
Executive Director issued an Indorsement on 20 November 2000 ordering the City Treasurer of
Manila to "cease and desist" from enforcing Tax Ordinance No. 7988. According to the BLGF:

In the attached Resolution dated August 17, 2000 of the Department of Justice, it is
stated that ". . . Ordinance No. 7988 of the City of Manila is hereby declared NULL
AND VOID AND WITHOUT LEGAL EFFECT for having been enacted in
contravention of the provisions of the Local Government Code of 1991 and its
implementing rules and regulations."

xxx xxx xxx

In view thereof, that Office is hereby instructed to cease and desist from
implementing the aforementioned Manila Tax Ordinance No. 7988, inviting
attention to Section 190 of the Local Government Code (LGC) of 1991, quoted
hereunder:

"Section 190. Attempt to Enforce Void or Suspended Tax Ordinances and

Revenue Measures.— The enforcement of any tax ordinance or revenue
measures after due notice of the disapproval or suspension thereof shall be
sufficient ground to administrative disciplinary action against the local
officials and employees responsible therefore."

Be guided accordingly. 6

Despite the Resolution of the DOJ declaring Tax Ordinance No. 7988 null and void and the directive
of the BLGF that respondents cease and desist from enforcing said tax ordinance, respondents
continued to assess petitioner business tax for the year 2001 based on the tax rates prescribed under
Tax Ordinance No. 7988. Thus, petitioner filed a Complaint with the RTC of Manila, Branch 21, on
17 January 2001, praying that respondents be enjoined from implementing the aforementioned tax
ordinance.

On 28 November 2001, the RTC of Manila, Branch 21, rendered a Decision in favor of petitioner,
the decretal portion of which states:

The defendants did not follow the procedure in the enactment of Tax Ordinance
No. 7988. The Court agrees with plaintiff's contention that the ordinance should
first be published for three (3) consecutive days in a newspaper of local circulation
aside from the posting of the same in at least four (4) conspicuous public places.

xxx xxx xxx

WHEREFORE, premises considered, judgment is hereby rendered declaring the

injunction permanent. Defendants are enjoined from implementing Tax Ordinance
No. 7988. The bond posted by the plaintiff is hereby CANCELLED. 7
During the pendency of the said case, the City Mayor of Manila approved on 22 February 2001 Tax
Ordinance No. 8011 entitled, "An Ordinance Amending Certain Sections of Ordinance No. 7988."
Said tax ordinance was again challenged by petitioner before the DOJ through a Petition questioning
the legality of the aforementioned tax ordinance on the grounds that (1) said tax ordinance amends a
tax ordinance previously declared null and void and without legal effect by the DOJ; and (2) said tax
ordinance was likewise not published upon its approval in accordance with Section 188 of the Local
Government Code of 1991. EcAHDT

On 5 July 2001, then DOJ Secretary Hernando Perez issued a Resolution declaring Tax Ordinance
No. 8011 null and void and legally not existing. According to the DOJ Secretary:

After a careful examination/evaluation of the records of this case and applying the
pertinent provisions of the Local Government Code of 1991, this Department finds
the instant petition of Coca-Cola Bottlers, Philippines, Inc. meritorious.

It bears stress, at the outset, that the subject ordinance was passed and approved by
the respondents principally to amend Ordinance No. 7988 which was earlier
nullified by this Department in its Resolution Dated August 17, 2000, also at the
instance of the herein petitioner. . . .

xxx xxx xxx

. . . [T]he only logical conclusion, therefore, is that Ordinance No. 8011, subject
herein, is also null and void, it being a mere amendatory ordinance of Ordinance
No. 7988 which, as earlier stated, had been nullified by this Department. An invalid
or unconstitutional law or ordinance does not, in legal contemplation, exist (Manila
Motors Co., Inc. vs. Flores, 99 Phil. 738). Where a statute which has been amended
is invalid, nothing, in effect, has been amended. As held in People vs. Lim, 108
Phil. 1091:

"If an order or law sought to be amended is invalid, then it does not legally
exist. There would be no occasion or need to amend it; . . ." (at p. 1097)

Instead of amending Ordinance No. 7988, herein respondent should have enacted
another tax measure which strictly complies with the requirements of law, both
procedural and substantive. The passage of the assailed ordinance did not have the
effect of curing the defects of Ordinance No. 7988 which, any way, does not legally
exist.

xxx xxx xxx

WHEREFORE, premises considered, Tax Ordinance No. 8011 is hereby declared

NULL and VOID and LEGALLY NOT EXISTING. 8

Respondent's Motion for Reconsideration of the Resolution of the DOJ was subsequently denied in a
Resolution, 9 dated 12 March 2002.

The City of Manila appealed the DOJ Resolution, dated 12 March 2002, denying its Motion for
Reconsideration of the Resolution nullifying Tax Ordinance No. 8011 before the RTC of Manila,
Branch 17, but the same was dismissed for lack of jurisdiction in an Order, dated 2 December 2002.
According to the trial court:

From whatever angle the recourse of herein petitioners was viewed, either from the
standpoint of Section 1, Rule 43, or Section 1 and the last sentence of the second
paragraph of Section 4, Rule 65 of the 1997 Rules of Civil Procedure, the
conclusion was inevitable that petitioners' remedial measure from dispositions of
the Secretary of Justice should have been ventilated before the next judicial plane. .
..
 Accordingly, by reason of the foregoing premises, Civil Case No. 02-103372 for
"Certiorari" is DISMISSED.

Consequently, respondents appealed the foregoing Order, dated 2 December 2002, via a Petition for
Review on Certiorari to the Supreme Court docketed as G.R. No. 157490. However, said appeal
was dismissed in our Resolution, dated 23 June 2003, the dispositive of which reads: DHEACI

Pursuant to Rule 45 and other related provisions of the 1997 Rules of Civil
Procedure as amended governing appeals by certiorari to the Supreme Court, only
petitions which are accompanied by or which comply strictly with the requirements
specified therein shall be entertained. On the basis thereof, the Court resolves to
DENY the instant petition for review on certiorari of the orders of the Regional
Trial Court, Manila, Branch 17 dated December 2, 2002 and March 7, 2003 for the
late filing as the petition was filed beyond the reglementary period of fifteen (15)
days fixed in Sec. 2, Rule 45 in relation to Sec. 5(a), Rule 56.

The omnibus motion of petitioners for reconsideration of the resolution of April 23,
2003 which denied the motion for an extension of time to file a petition is
DENIED for lack of merit.

Respondents' Motion for Reconsideration was subsequently denied in a Resolution, dated 11 August
2003, in which the Court resolved as follows:

Acting on the motion of petitioners for reconsideration of the resolution of June 23,
2003 which denied the petition for review on certiorari and considering that there
is no compelling reason to warrant a modification of this Court's resolution, the
Court resolves to DENY reconsideration with FINALITY.

Meanwhile, on the basis of the enactment of Tax Ordinance No. 8011, the City of Manila filed a
Motion for Reconsideration with the RTC of Manila, Branch 21, of its Decision, dated 28 November
2001, which the court a quo granted in the herein assailed Order dated 8 May 2002, the full text of
which reads:

Considering that Ordinance No. 7988 (Amended Revenue Code of the City of
Manila) has already been amended by Ordinance No. 8011 entitled "An Ordinance
Amending Certain Sections of Ordinance No. 7988" approved by the City Mayor of
Manila on February 22, 2001, let the above-entitled case be as it is hereby
DISMISSED. Without pronouncement as to costs." 10

Petitioner's Motion for Reconsideration of the abovequoted Order was denied by the trial court in
the second challenged Order, dated 5 December 2002; hence the instant Petition. cTIESD

The case at bar revolves around the sole pivotal issue of whether or not Tax Ordinance No. 7988 is
null and void and of no legal effect. However, respondents, in their Comment and Memorandum,
raise the procedural issue of whether or not the instant Petition has complied with the requirements
of the 1997 Rules on Civil Procedure; thus, the Court resolves to first pass upon this issue before
tackling the substantial matters involved in this case.

Respondents insist that the instant Petition raises questions of fact that are proscribed under Rule 45
of the 1997 Rules of Civil Procedure which states that Petitions for Certiorari before the Supreme
Court shall raise only questions of law. We do not agree. There is a question of fact when doubt or
controversy arises as to the truth or falsity of the alleged facts, when there is no dispute as to fact,
the question of whether or not the conclusion drawn therefrom is correct is a question of law. 11 A
thorough reading of the Petition will reveal that petitioner does not present an issue in which we are
called to rule on the truth or falsity of any fact alleged in the case. Furthermore, the resolution of
whether or not the court a quo erred in dismissing petitioner's case in light of the enactment of Tax
Ordinance No. 8011, allegedly amending Tax Ordinance No. 7988, does not necessitate an incursion
into the facts attending the case.
Contrarily, it is respondents who actually raise questions of fact before us. While accusing petitioner
of raising questions of fact, respondents, in the same breath, proceeded to allege that the RTC of
Manila, Branch 21, in its Decision, dated 28 November 2001, failed to take into account the
evidence presented by respondents allegedly proving that Tax Ordinance No. 7988 was published
for four times in a newspaper of general circulation in accordance with the requirements of law. A
determination of whether or not the trial court erred in concluding that Tax Ordinance No. 7988 was
indeed published for four times in a newspaper of general circulation would clearly involve a
calibration of the probative value of the evidence presented by respondents to prove such allegation.
Therefore, said issue is a question of fact which this Court, not being a trier of facts, will decline to
pass upon.

Respondents also point out that the Petition was not properly verified and certified because Nelson
Empalmado, the Vice President for Tax and Financial Services of Coca-Cola Bottlers Philippines,
Inc. who verified the subject Petition was not duly authorized to file said Petition. Respondents
assert that nowhere in the attached Secretary's Certificate can it be found the authority of Nelson
Empalmado to institute the instant Petition. Thus, there being a lack of proper verification,
respondents contend that the Petition must be treated as a mere scrap of paper, which has no legal
effect as declared in Section 4, Rule 7 of the 1997 Rules of Civil Procedure.

An inspection of the Secretary's Certificate attached to the petition will show that Nelson
Empalmado is not among those designated as representative to prosecute claims in behalf of Coca-
Cola Bottlers Philippines, Inc. However, it would seem that the authority of Mr. Empalmado to file
the instant Petition emanated from a Special Power of Attorney signed by Ramon V. Lapez, Jr.,
Associate Legal Counsel/Assistant Corporate Secretary of Coca-Cola Bottlers Philippines, Inc. and
one of those named in the Secretary's Certificate as authorized to file a Petition in behalf of the
corporation. A careful perusal of said Secretary's Certificate will further reveal that the persons
authorized therein to represent petitioner corporation in any suit are also empowered to designate
and appoint any individual as attorney-in-fact of the corporation for the prosecution of any suit.
Accordingly, by virtue of the Special Power of Attorney executed by Ramon V. Lapez, Jr.
authorizing Nelson Emplamado to file a Petition before the Supreme Court, the instant Petition has
been properly verified, in accordance with the 1997 Rules of Civil Procedure. DACTSH

Having disposed of the procedural issues raised by respondents, We now come to the pivotal issue
in this petition.

It is undisputed from the facts of the case that Tax Ordinance No. 7988 has already been declared by
the DOJ Secretary, in its Order, dated 17 August 2000, as null and void and without legal effect due
to respondents' failure to satisfy the requirement that said ordinance be published for three
consecutive days as required by law. Neither is there quibbling on the fact that the said Order of the
DOJ was never appealed by the City of Manila, thus, it had attained finality after the lapse of the
period to appeal. SICaDA

Furthermore, the RTC of Manila, Branch 21, in its Decision dated 28 November 2001, reiterated
the findings of the DOJ Secretary that respondents failed to follow the procedure in the enactment of
tax measures as mandated by Section 188 of the Local Government Code of 1991, in that they failed
to publish Tax Ordinance No. 7988 for three consecutive days in a newspaper of local circulation.
From the foregoing, it is evident that Tax Ordinance No. 7988 is null and void as said ordinance was
published only for one day in the 22 May 2000 issue of the Philippine Post in contravention of the
unmistakable directive of the Local Government Code of 1991.

Despite the nullity of Tax Ordinance No. 7988, the court a quo, in the assailed Order, dated 8 May
2002, went on to dismiss petitioner's case on the force of the enactment of Tax Ordinance No. 8011,
amending Tax Ordinance No. 7988. Significantly, said amending ordinance was likewise declared
null and void by the DOJ Secretary in a Resolution, dated 5 July 2001, elucidating that "[I]nstead of
amending Ordinance No. 7988, [herein] respondent should have enacted another tax measure
which strictly complies with the requirements of law, both procedural and substantive. The passage
of the assailed ordinance did not have the effect of curing the defects of Ordinance No. 7988
which, any way, does not legally exist." Said Resolution of the DOJ Secretary had, as well, attained
finality by virtue of the dismissal with finality by this Court of respondents' Petition for Review on
Certiorari in G.R. No. 157490 assailing the dismissal by the RTC of Manila, Branch 17, of its
appeal due to lack of jurisdiction in its Order, dated 11 August 2003.

Based on the foregoing, this Court must reverse the Order of the RTC of Manila, Branch 21,
dismissing petitioner's case as there is no basis in law for such dismissal. The amending law, having
been declared as null and void, in legal contemplation, therefore, does not exist. Furthermore, even
if Tax Ordinance No. 8011 was not declared null and void, the trial court should not have dismissed
the case on the reason that said tax ordinance had already amended Tax Ordinance No. 7988. As
held by this Court in the case of People v. Lim, 12 if an order or law sought to be amended is
invalid, then it does not legally exist, there should be no occasion or need to amend it. 13

WHEREFORE, premises considered, the instant Petition is hereby GRANTED. The Orders of the
RTC of Manila, Branch 21, dated 8 May 2002 and 5 December 2002, respectively, are hereby
REVERSED and SET ASIDE. HCDAac

SO ORDERED.

Panganiban, C.J., Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ., concur.

||| (Coca-Cola Bottlers Phil., Inc. v. City of Manila, G.R. No. 156252, [June 27, 2006], 526 PHIL
249-261)
 THIRD DIVISION; [G.R. No. 155491. September 16, 2008.]

SMART COMMUNICATIONS, INC., petitioner, vs. THE CITY OF DAVAO,

represented herein by its Mayor HON. RODRIGO R. DUTERTE, and the
SANGGUNIANG PANLUNGSOD OF DAVAO CITY, respondents.

DECISION

NACHURA, J p:

This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by
Smart Communications, Inc. (Smart) against the City of Davao, represented by its Mayor, Hon.
Rodrigo R. Duterte, and the Sangguniang Panlungsod of Davao City, to annul the Decision 1
dated July 19, 2002 of the Regional Trial Court (RTC) and its Order 2 dated September 26, 2002
in Sp. Civil Case No. 28,976-2002. CTAIHc
The Facts
On February 18, 2002, Smart filed a special civil action for declaratory relief 3 under
Rule 63 of the Rules of Court, for the ascertainment of its rights and obligations under the Tax
Code of the City of Davao, 4 particularly Section 1, Article 10 thereof, the pertinent portion of
which reads:
Notwithstanding any exemption granted by any law or other special law,
there is hereby imposed a tax on businesses enjoying a franchise, at a rate of
seventy-five percent (75%) of one percent (1%) of the gross annual receipts for
the preceding calendar year based on the income or receipts realized within the
territorial jurisdiction of Davao City.
Smart contends that its telecenter in Davao City is exempt from payment of franchise tax
to the City, on the following grounds: (a) the issuance of its franchise under Republic Act (R.A.)
No. 7294 5 subsequent to R.A. No. 7160 shows the clear legislative intent to exempt it from the
provisions of R.A. 7160; 6 (b) Section 137 of R.A. No. 7160 can only apply to exemptions
already existing at the time of its effectivity and not to future exemptions; (c) the power of the
City of Davao to impose a franchise tax is subject to statutory limitations such as the "in lieu of
all taxes" clause found in Section 9 of R.A. No. 7294; and (d) the imposition of franchise tax by
the City of Davao would amount to a violation of the constitutional provision against
impairment of contracts. 7
On March 2, 2002, respondents filed their Answer 8 in which they contested the tax
exemption claimed by Smart. They invoked the power granted by the Constitution to local
government units to create their own sources of revenue. 9
On May 17, 2002, a pre-trial conference was held. Inasmuch as only legal issues were
involved in the case, the RTC issued an order requiring the parties to submit their respective
memoranda and, thereafter, the case would be deemed submitted for resolution. 10 AcTHCE
On July 19, 2002, the RTC rendered its Decision 11 denying the petition. The trial court
noted that the ambiguity of the "in lieu of all taxes" provision in R.A. No. 7294, on whether it
covers both national and local taxes, must be resolved against the taxpayer. 12 The RTC
ratiocinated that tax exemptions are construed in strictissimi juris against the taxpayer and
liberally in favor of the taxing authority and, thus, those who assert a tax exemption must justify
it with words too plain to be mistaken and too categorical not to be misinterpreted. 13 On the
issue of violation of the non-impairment clause of the Constitution, the trial court cited Mactan
Cebu International Airport Authority v. Marcos, 14 and declared that the city's power to tax is
based not merely on a valid delegation of legislative power but on the direct authority granted to
it by the fundamental law. It added that while such power may be subject to restrictions or
conditions imposed by Congress, any such legislated limitation must be consistent with the basic
policy of local autonomy. 15
 Smart filed a motion for reconsideration which was denied by the trial court in an Order
16 dated September 26, 2002.
Thus, the instant case.
Smart assigns the following errors:
[a.] THE LOWER COURT ERRED IN NOT HOLDING THAT UNDER
PETITIONER'S FRANCHISE (REPUBLIC ACT NO. 7294), WHICH
CONTAINS THE "IN LIEU OF ALL TAXES" CLAUSE, AND WHICH IS A
SPECIAL LAW ENACTED SUBSEQUENT TO THE LOCAL GOVERNMENT
CODE, NO FRANCHISE TAX MAY BE IMPOSED ON PETITIONER BY
RESPONDENT CITY.
[b.] THE LOWER COURT ERRED IN HOLDING THAT
PETITIONER'S FRANCHISE IS A GENERAL LAW AND DID NOT REPEAL
RELEVANT PROVISIONS REGARDING FRANCHISE TAX OF THE
LOCAL GOVERNMENT CODE, WHICH ACCORDING TO THE COURT IS
A SPECIAL LAW.
[c.] THE LOWER COURT ERRED IN NOT HOLDING THAT
SECTION 137 OF THE LOCAL GOVERNMENT CODE, WHICH, IN
RELATION TO SECTION 151 THEREOF, ALLOWS RESPONDENT CITY
TO IMPOSE THE FRANCHISE TAX, AND SECTION 193 OF THE CODE,
WHICH PROVIDES FOR WITHDRAWAL OF TAX EXEMPTION
PRIVILEGES, ARE NOT APPLICABLE TO THIS CASE. IcHTCS
[d.] THE LOWER COURT ERRED IN NOT HOLDING THAT
SECTIONS 137 AND 193 OF THE LOCAL GOVERNMENT CODE REFER
ONLY TO EXEMPTIONS ALREADY EXISTING AT THE TIME OF ITS
ENACTMENT BUT NOT TO FUTURE EXEMPTIONS.
[e.] THE LOWER COURT ERRED IN APPLYING THE RULE OF
STATUTORY CONSTRUCTION THAT TAX EXEMPTIONS ARE
CONSTRUED STRICTLY AGAINST THE TAXPAYER.
[f.] THE LOWER COURT ERRED IN NOT HOLDING THAT
PETITIONER'S FRANCHISE (REPUBLIC ACT NO. 7294) HAS BEEN
AMENDED AND EXPANDED BY SECTION 23 OF REPUBLIC ACT NO.
7925, "THE PUBLIC TELECOMMUNICATIONS POLICY ACT", TAKING
INTO ACCOUNT THE FRANCHISE OF GLOBE TELECOM, INC. (GLOBE)
(REPUBLIC ACT NO. 7229), WHICH ARE SPECIAL PROVISIONS AND
WERE ENACTED SUBSEQUENT TO THE LOCAL GOVERNMENT CODE,
THEREBY PROVIDING AN ADDITIONAL GROUND WHY NO
FRANCHISE TAX MAY BE IMPOSED ON PETITIONER BY RESPONDENT
CITY.
[g.] THE LOWER COURT ERRED IN DISREGARDING THE RULING
OF THE DEPARTMENT OF FINANCE, THROUGH ITS BUREAU OF
LOCAL GOVERNMENT FINANCE, THAT PETITIONER IS EXEMPT FROM
THE PAYMENT OF THE FRANCHISE TAX IMPOSABLE BY LOCAL
GOVERNMENT UNITS UNDER THE LOCAL GOVERNMENT CODE.
[h.] THE LOWER COURT ERRED IN NOT HOLDING THAT THE
IMPOSITION OF THE LOCAL FRANCHISE TAX ON PETITIONER
WOULD VIOLATE THE CONSTITUTIONAL PROHIBITION AGAINST
IMPAIRMENT OF CONTRACTS.
[i.] THE LOWER COURT ERRED IN DENYING THE PETITION
BELOW. 17 ITDSAE
The Issue
In sum, the pivotal issue in this case is whether Smart is liable to pay the franchise tax
imposed by the City of Davao.
 The Ruling of the Court
We rule in the affirmative.
I. Prospective Effect of R.A. No. 7160
On March 27, 1992, Smart's legislative franchise (R.A. No. 7294) took effect. Section 9
thereof, quoted hereunder, is at the heart of the present controversy:
Section 9. Tax provisions. — The grantee, its successors or assigns shall
be liable to pay the same taxes on their real estate buildings and personal
property, exclusive of this franchise, as other persons or corporations which are
now or hereafter may be required by law to pay. In addition thereto, the
grantee, its successors or assigns shall pay a franchise tax equivalent to three
percent (3%) of all gross receipts of the business transacted under this
franchise by the grantee, its successors or assigns and the said percentage
shall be in lieu of all taxes on this franchise or earnings thereof: Provided,
That the grantee, its successors or assigns shall continue to be liable for income
taxes payable under Title II of the National Internal Revenue Code pursuant to
Section 2 of Executive Order No. 72 unless the latter enactment is amended or
repealed, in which case the amendment or repeal shall be applicable thereto.
HCSAIa
The grantee shall file the return with and pay the tax due thereon to the
Commissioner of Internal Revenue or his duly authorized representative in
accordance with the National Internal Revenue Code and the return shall be
subject to audit by the Bureau of Internal Revenue. (Emphasis supplied.)
Smart alleges that the "in lieu of all taxes" clause in Section 9 of its franchise exempts it from all
taxes, both local and national, except the national franchise tax (now VAT), income tax, and real
property tax. 18
On January 1, 1992, two months ahead of Smart's franchise, the Local Government Code
(R.A. No. 7160) took effect. Section 137, in relation to Section 151 of R.A. No. 7160, allowed
the imposition of franchise tax by the local government units; while Section 193 thereof
provided for the withdrawal of tax exemption privileges granted prior to the issuance of R.A.
No. 7160 except for those expressly mentioned therein, viz.:
Section 137. Franchise Tax. — Notwithstanding any exemption
granted by any law or other special law, the province may impose a tax on
businesses enjoying a franchise, at the rate not exceeding fifty percent (50%)
of one percent (1%) of the gross annual receipts for the preceding calendar
year based on the incoming receipt, or realized, within its territorial
jurisdiction.
In the case of a newly started business, the tax shall not exceed one-
twentieth (1/20) of one percent (1%) of the capital investment. In the succeeding
calendar year, regardless of when the business started to operate, the tax shall be
based on the gross receipts for the preceding calendar year, or any fraction
thereon, as provided herein.
Section 151. Scope of Taxing Powers. — Except as otherwise provided in
this Code, the city may levy the taxes, fees, and charges which the province or
municipality may impose: Provided, however, That the taxes, fees and charges
levied and collected by highly urbanized and independent component cities shall
accrue to them and distributed in accordance with the provisions of this Code.
DASEac
The rates of taxes that the city may levy may exceed the maximum
rates allowed for the province or municipality by not more than fifty percent
(50%) except the rates of professional and amusement taxes.
Section 193. Withdrawal of Tax Exemption Privileges. — Unless
otherwise provided in this Code, tax exemptions or incentives granted to, or
presently enjoyed by all persons, whether natural or juridical, including
government-owned or controlled corporations, except local water districts,
 cooperatives duly registered under RA No. 6938, non-stock and non-profit
hospitals and educational institutions, are hereby withdrawn upon the effectivity
of this Code. (Emphasis supplied.)
Smart argues that it is not covered by Section 137, in relation to Section 151 of R.A. No.
7160, because its franchise was granted after the effectivity of the said law. We agree with
Smart's contention on this matter. The withdrawal of tax exemptions or incentives provided in
R.A. No. 7160 can only affect those franchises granted prior to the effectivity of the law. The
intention of the legislature to remove all tax exemptions or incentives granted prior to the said
law is very evident in the language of Section 193 of R.A. No. 7160. No interpretation is
necessary.
II. The "in lieu of all taxes" Clause in R.A. No. 7294
The "in lieu of all taxes" clause in Smart's franchise is put in issue before the Court. In
order to ascertain its meaning, consistent with fundamentals of statutory construction, all the
words in the statute must be considered. The grant of tax exemption by R.A. No. 7294 is not to
be interpreted from a consideration of a single portion or of isolated words or clauses, but from a
general view of the act as a whole. Every part of the statute must be construed with reference to
the context. 19
Smart is of the view that the only taxes it may be made to bear under its franchise are the
national franchise tax (now VAT), income tax, and real property tax. 20 It claims exemption
from the local franchise tax because the "in lieu of taxes" clause in its franchise does not
distinguish between national and local taxes. 21
We pay heed that R.A. No. 7294 is not definite in granting exemption to Smart from
local taxation. Section 9 of R.A. No. 7294 imposes on Smart a franchise tax equivalent to three
percent (3%) of all gross receipts of the business transacted under the franchise and the said
percentage shall be in lieu of all taxes on the franchise or earnings thereof. R.A. No 7294 does
not expressly provide what kind of taxes Smart is exempted from. It is not clear whether the "in
lieu of all taxes" provision in the franchise of Smart would include exemption from local or
national taxation. What is clear is that Smart shall pay franchise tax equivalent to three percent
(3%) of all gross receipts of the business transacted under its franchise. But whether the
franchise tax exemption would include exemption from exactions by both the local and the
national government is not unequivocal. DIcTEC
The uncertainty in the "in lieu of all taxes" clause in R.A. No. 7294 on whether Smart is
exempted from both local and national franchise tax is construed strictly against Smart who is
claiming the exemption. Smart has the burden of proving that, aside from the imposed 3%
franchise tax, Congress intended it to be exempt from all kinds of franchise taxes — whether
local or national. However, Smart failed in this regard.
Tax exemptions are never presumed and are strictly construed against the taxpayer and
liberally in favor of the taxing authority. 22 They can only be given force when the grant is clear
and categorical. 23 The surrender of the power to tax, when claimed, must be clearly shown by a
language that will admit of no reasonable construction consistent with the reservation of the
power. If the intention of the legislature is open to doubt, then the intention of the legislature
must be resolved in favor of the State. 24
In this case, the doubt must be resolved in favor of the City of Davao. The "in lieu of all
taxes" clause applies only to national internal revenue taxes and not to local taxes. As
appropriately pointed out in the separate opinion of Justice Antonio T. Carpio in a similar case
25 involving a demand for exemption from local franchise taxes:
[T]he "in lieu of all taxes" clause in Smart's franchise refers only to taxes,
other than income tax, imposed under the National Internal Revenue Code. The
"in lieu of all taxes" clause does not apply to local taxes. The proviso in the first
paragraph of Section 9 of Smart's franchise states that the grantee shall "continue
to be liable for income taxes payable under Title II of the National Internal
Revenue Code." Also, the second paragraph of Section 9 speaks of tax returns
filed and taxes paid to the "Commissioner of Internal Revenue or his duly
authorized representative in accordance with the National Internal Revenue
Code." Moreover, the same paragraph declares that the tax returns "shall be
 subject to audit by the Bureau of Internal Revenue." Nothing is mentioned in
Section 9 about local taxes. The clear intent is for the "in lieu of all taxes" clause
to apply only to taxes under the National Internal Revenue Code and not to local
taxes. Even with respect to national internal revenue taxes, the "in lieu of all
taxes" clause does not apply to income tax. CHTAIc
If Congress intended the "in lieu of all taxes" clause in Smart's franchise
to also apply to local taxes, Congress would have expressly mentioned the
exemption from municipal and provincial taxes. Congress could have used the
language in Section 9(b) of Clavecilla's old franchise, as follows:

. . . in lieu of any and all taxes of any kind, nature or description levied,
established or collected by any authority whatsoever, municipal, provincial
or national, from which the grantee is hereby expressly exempted, . . . .
(Emphasis supplied).

However, Congress did not expressly exempt Smart from local taxes.
Congress used the "in lieu of all taxes" clause only in reference to national
internal revenue taxes. The only interpretation, under the rule on strict
construction of tax exemptions, is that the "in lieu of all taxes" clause in Smart's
franchise refers only to national and not to local taxes.
It should be noted that the "in lieu of all taxes" clause in R.A. No. 7294 has become
functus officio with the abolition of the franchise tax on telecommunications companies. 26 As
admitted by Smart in its pleadings, it is no longer paying the 3% franchise tax mandated in its
franchise. Currently, Smart along with other telecommunications companies pays the uniform
10% value-added tax. 27
The VAT on sale of services of telephone franchise grantees is equivalent to 10% of
gross receipts derived from the sale or exchange of services. 28 R.A. No. 7716, as amended by
the Expanded Value Added Tax Law (R.A. No. 8241), the pertinent portion of which is
hereunder quoted, amended Section 9 of R.A. No. 7294: SCIacA
SEC. 102. Value-added tax on sale of services and use or lease of
properties. — (a) Rate and base of tax. — There shall be levied assessed and
collected, a value-added tax equivalent to ten percent (10%) of gross receipts
derived from the sale or exchange of services, including the use or lease of
properties.
The phrase "sale or exchange of services" means the performance of
all kinds of services in the Philippines for others for a fee, remuneration or
consideration, including those performed or rendered by construction and
service contractors; stock, real estate, commercial, customs and immigration
brokers; lessors of property, whether personal or real; warehousing services;
lessors or distributors of cinematographic films; persons engaged in milling,
processing, manufacturing or repacking goods for others; proprietors, operators or
keepers of hotels, motels, rest houses, pension houses, inns, resorts; proprietors or
operators of restaurants, refreshment parlors, cafes and other eating places,
including clubs and caterers; dealers in securities; lending investors;
transportation contractors on their transport of goods or cargoes, including
persons who transport goods or cargoes for hire and other domestic common
carriers by land, air, and water relative to their transport of goods or cargoes;
services of franchise grantees of telephone and telegraph, radio and
television broadcasting and all other franchise grantees except those under
Section 117 of this Code; services of banks, non-bank financial intermediaries
and finance companies; and non-life insurance companies (except their crop
insurances) including surety, fidelity, indemnity and bonding companies; and
similar services regardless of whether or not the performance thereof calls for the
exercise or use of the physical or mental faculties. . . . . 29
R.A. No. 7716, specifically Section 20 thereof, expressly repealed the provisions of all special
laws relative to the rate of franchise taxes. It also repealed, amended, or modified all other laws,
orders, issuances, rules and regulations, or parts thereof which are inconsistent with it. 30 In
effect, the "in lieu of all taxes" clause in R.A. No. 7294 was rendered ineffective by the advent
of the VAT Law. 31
However, the franchise tax that the City of Davao may impose must comply with
Sections 137 and 151 of R.A. No. 7160. Thus, the local franchise tax that may be imposed by the
City must not exceed 50% of 1% of the gross annual receipts for the preceding calendar year
based on the income on receipts realized within the territorial jurisdiction of Davao. TAHIED
III. Opinion of the Bureau of Local Government Finance (BLGF)
In support of its argument that the "in lieu of all taxes" clause is to be construed as an
exemption from local franchise taxes, Smart submits the opinion of the Department of Finance,
through the BLGF, dated August 13, 1998 and February 24, 1998, regarding the franchises of
Smart and Globe, respectively. 32 Smart presents the same arguments as the Philippine Long
Distance Telephone Company in the previous cases already decided by this Court. 33 As
previously held by the Court, the findings of the BLGF are not conclusive on the courts:
[T]he BLGF opined that §23 of R.A. No. 7925 amended the franchise of
petitioner and in effect restored its exemptions from local taxes. Petitioner
contends that courts should not set aside conclusions reached by the BLGF
because its function is precisely the study of local tax problems and it has
necessarily developed an expertise on the subject.
To be sure, the BLGF is not an administrative agency whose findings on
questions of fact are given weight and deference in the courts. The authorities
cited by petitioner pertain to the Court of Tax Appeals, a highly specialized court
which performs judicial functions as it was created for the review of tax cases. In
contrast, the BLGF was created merely to provide consultative services and
technical assistance to local governments and the general public on local taxation,
real property assessment, and other related matters, among others. The question
raised by petitioner is a legal question, to wit, the interpretation of §23 of R.A.
No. 7925. There is, therefore, no basis for claiming expertise for the BLGF that
administrative agencies are said to possess in their respective fields.
Petitioner likewise argues that the BLGF enjoys the presumption of
regularity in the performance of its duty. It does enjoy this presumption, but this
has nothing to do with the question in this case. This case does not concern the
regularity of performance of the BLGF in the exercise of its duties, but the
correctness of its interpretation of a provision of law. 34
IV. Tax Exclusion/Tax Exemption
Smart gives another perspective of the "in lieu of all taxes" clause in Section 9 of R.A.
No. 7294 in order to avoid the payment of local franchise tax. It says that, viewed from another
angle, the "in lieu of all taxes" clause partakes of the nature of a tax exclusion and not a tax
exemption. A tax exemption means that the taxpayer does not pay any tax at all. Smart pays
VAT, income tax, and real property tax. Thus, what it enjoys is more accurately a tax exclusion.
35 CScTED
However, as previously held by the Court, both in their nature and effect, there is no
essential difference between a tax exemption and a tax exclusion. An exemption is an immunity
or a privilege; it is the freedom from a charge or burden to which others are subjected. An
exclusion, on the other hand, is the removal of otherwise taxable items from the reach of
taxation, e.g., exclusions from gross income and allowable deductions. An exclusion is, thus,
also an immunity or privilege which frees a taxpayer from a charge to which others are
subjected. Consequently, the rule that a tax exemption should be applied in strictissimi juris
against the taxpayer and liberally in favor of the government applies equally to tax exclusions.
36
V. Section 23 of R.A. No. 7925
To further its claim, Smart invokes Section 23 of the Public Telecommunications Policy
Act (R.A. No. 7925):
 SEC. 23. Equality of Treatment in the Telecommunications Industry. —
Any advantage, favor, privilege, exemption, or immunity granted under
existing franchises, or may hereafter be granted, shall ipso facto become part
of previously granted telecommunications franchise and shall be accorded
immediately and unconditionally to the grantees of such franchises: Provided,
however, That the foregoing shall neither apply to nor affect provisions of
telecommunications franchises concerning territory covered by the franchise, the
life span of the franchise, or the type of service authorized by the franchise.
(Emphasis supplied.)
In sum, Smart wants us to interpret anew Section 23 of R.A. No. 7925, in connection
with the franchise of Globe (R.A. No. 7227), 37 which was enacted on March 19, 1992.
Allegedly, by virtue of Section 23 of R.A. No. 7925, otherwise known as the "most
favored treatment clause" or the "equality clause", the provision in the franchise of Globe
exempting it from local taxes is automatically incorporated in the franchise of Smart. 38 Smart
posits that, since the franchise of Globe contains a provision exempting it from municipal or
local franchise tax, this provision should also benefit Smart by virtue of Section 23 of R.A. No.
7925. The provision in Globe's franchise invoked by Smart reads:
(b) The grantee shall further pay to the Treasurer of the Philippines each
year after the audit and approval of the accounts as prescribed in this Act, one and
one-half per centum of all gross receipts from business transacted under this
franchise by the said grantee in the Philippines, in lieu of any and all taxes of
any kind, nature or description levied, established or collected by any
authority whatsoever, municipal, provincial or national, from which the
grantee is hereby expressly exempted, effective from the date of the approval of
Republic Act Numbered Sixteen hundred eighteen. 39
We find no reason to disturb the previous pronouncements of this Court regarding the
interpretation of Section 23 of R.A. No. 7925. As aptly explained in the en banc decision of this
Court in Philippine Long Distance Telephone Company, Inc. v. City of Davao, 40 and recently
inDigital Telecommunications Philippines, Inc. (Digitel) v. Province of Pangasinan, 41
Congress, in approving Section 23 of R.A. No. 7925, did not intend it to operate as a blanket tax
exemption to all telecommunications entities. 42 The language of Section 23 of R.A. No. 7925
and the proceedings of both Houses of Congress are bereft of anything that would signify the
grant of tax exemptions to all telecommunications entities, including those whose exemptions
had been withdrawn by R.A. No. 7160. 43 The term "exemption" in Section 23 of R.A. No. 7925
does not mean tax exemption. The term refers to exemption from certain regulations and
requirements imposed by the National Telecommunications Commission. 44 ESTcIA
Furthermore, in the franchise of Globe (R.A. No. 7229), the legislature incontrovertibly
stated that it will be liable for one and one-half per centum of all gross receipts from business
transacted under the franchise, in lieu of any and all taxes of any kind, nature, or description
levied, established, or collected by any authority whatsoever, municipal, provincial, or national,
from which the grantee is hereby expressly exempted. 45 The grant of exemption from
municipal, provincial, or national is clear and categorical — that aside from the franchise tax
collected by virtue of R.A. No. 7229, no other franchise tax may be collected from Globe
regardless of who the taxing power is. No such provision is found in the franchise of Smart; the
kind of tax from which it is exempted is not clearly specified. CSDcTA
As previously explained by the Court, the stance of Smart would lead to absurd
consequences.
The acceptance of petitioner's theory would result in absurd
consequences. To illustrate: In its franchise, Globe is required to pay a franchise
tax of only one and one-half percentum (1 1/2%) of all gross receipts from its
transactions while Smart is required to pay a tax of three percent (3%) on all
gross receipts from business transacted. Petitioner's theory would require that, to
level the playing field, any "advantage, favor, privilege, exemption, or immunity"
granted to Globe must be extended to all telecommunications companies,
including Smart. If, later, Congress again grants a franchise to another
telecommunications company imposing, say, one percent (1%) franchise tax, then
 all other telecommunications franchises will have to be adjusted to "level the
playing field" so to speak. This could not have been the intent of Congress in
enacting §23 of Rep. Act 7925. Petitioner's theory will leave the Government
with the burden of having to keep track of all granted telecommunications
franchises, lest some companies be treated unequally. It is different if Congress
enacts a law specifically granting uniform advantages, favor, privilege,
exemption, or immunity to all telecommunications entities. 46
VI. Non-impairment Clause of the Constitution
Another argument of Smart is that the imposition of the local franchise tax by the City of
Davao would violate the constitutional prohibition against impairment of contracts. The
franchise, according to petitioner, is in the nature of a contract between the government and
Smart. 47
However, we find that there is no violation of Article III, Section 10 of the 1987
Philippine Constitution. As previously discussed, the franchise of Smart does not expressly
provide for exemption from local taxes. Absent the express provision on such exemption under
the franchise, we are constrained to rule against it. The "in lieu of all taxes" clause in Section 9
of R.A. No. 7294 leaves much room for interpretation. Due to this ambiguity in the law, the
doubt must be resolved against the grant of tax exemption.
Moreover, Smart's franchise was granted with the express condition that it is subject to
amendment, alteration, or repeal. 48 As held in Tolentino v. Secretary of Finance: 49 DASEac
It is enough to say that the parties to a contract cannot, through the
exercise of prophetic discernment, fetter the exercise of the taxing power of the
State. For not only are existing laws read into contracts in order to fix obligations
as between parties, but the reservation of essential attributes of sovereign power
is also read into contracts as a basic postulate of the legal order. The policy of
protecting contracts against impairment presupposes the maintenance of a
government which retains adequate authority to secure the peace and good order
of society.
In truth, the Contract Clause has never been thought as a limitation on the
exercise of the State's power of taxation save only where a tax exemption has
been granted for a valid consideration. . . . .
WHEREFORE, the instant petition is DENIED for lack of merit. Costs against petitioner.
aIAcCH
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Chico-Nazario and Reyes, JJ., concur.
||| (Smart Communications, Inc. v. City of Davao, G.R. No. 155491, [September 16, 2008], 587
PHIL 20-41)
City of Makati vs. Nippon Express Philippines Corp.