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May a TP amend his tax return as a ma"er of Rohm Apollo Semiconductor Phil. v. CIR
right? § Although TP is allowed to amend its returns, the
§ Yes, subject to the following condiHons: amendment so allowed does not extend as to give
— The amendment is made within 3 years from the filing support to TP’s allegaHons in its pleadings that are
of the return; and contradictory to the exisHng evidence on record
— No noHce for invesHgaHon or audit of such return,
statement or declaraHon has, in the meanHme, been
actually served upon the TP (§ 6(A))
A"y. Terence Conrad H. Bello Slide No. 3 A"y. Terence Conrad H. Bello Slide No. 4
A. Procedure
A"y. Terence Conrad H. Bello 5 A"y. Terence Conrad H. Bello Slide No. 6
§ Must the BIR issue the TP a PAN before a FAN? Yes (§ 228) § If TP fails to present evidence during the PAN stage, does
§ When may the BIR dispense with a PAN? Only in the ff. this mean that the TP is precluded from introducing
instances: evidence in the FAN stage?
a. MathemaHcal error – No. TP sHll enHtled to protest the FAN and submit relevant
b. Discrepancy bet. tax withheld and tax actually remi"ed supporHng docs. Failure to present evidence during PAN
c. When TP opHng for a refund or TCC carried over and stage (or even failure to respond to the PAN) not an implied
automaHcally applied excess credits against tax admission of the correctness of the assessment
liabiliHes of the succeeding taxable quarter/s or year/s – It is only upon TP’s failure to file a protest upon receipt of
d. Non-payment of excise tax the FAN or to appeal the denial of the protest within the
prescribed periods would the FAN become final,
e. Transfer by exempt person of tax-free arHcles to non-
unappealable and executory thereby negaHng TP’s right to
exempt persons (§ 228)
present evidence precisely because the right to dispute the
assessment has prescribed and the court can no longer
acquire jurisdicHon over the same
A"y. Terence Conrad H. Bello Slide No. 7 A"y. Terence Conrad H. Bello Slide No. 8
C. PAN C. PAN
§ What is the BIR’s remedy then if TP fails to Pier 8 Arrastre and Stevedoring Services v. CIR
§ Failure of TP to appear and/or to present evidence during
present evidence during the PAN stage?
PAN stage, or even during the protest period does not mean
– BIR is enHtled to issue a FAN based on its a waiver of the right to present any evidence to dispute the
findings assessment
§ Such failure is not equivalent to an implied admission of the
correctness of the tax assessment
§ It is only when TP fails to file a Hmely protest on the FAN or
fails to Hmely appeal the denial of the protest would the
assessment become final, unappealable and executory
thereby negaHng TP’s right to present evidence precisely
because the right to dispute the assessment has prescribed
and the court can no longer acquire jurisdicHon over the
same
A"y. Terence Conrad H. Bello Slide No. 9 A"y. Terence Conrad H. Bello Slide No. 10
§ What if BIR issues a FAN without first issuing a PAN § See, however, the case of CIR v. Menguito which seems to hold that the
lack of a PAN is not fatal to the BIR so long as a FAN is served on the TP
(assuming the non-issuance of the PAN does not fall
– However, while the lack of a post-reporHng noHce and pre-
within the excepHons), will that invalidate the assessment noHce is a deviaHon from the requirements under RR
assessment? 12-85, the same cannot detract from the fact that formal
assessments were issued to and actually received by respondents in
– Arguably, yes. Denial of due process. Even if TP had accordance with SecHon 228 of the NIRC
all the opportunity to protest the FAN and submit – Requirement that an assessment be saHsfactorily proven to have
relevant supporHng documents? Can’t the BIR argue been issued and released or, if receipt thereof is denied, that said
that all that the due process clause requires is the assessment has been served on TP, applies only to a FAN, but not to
post-reporHng noHces or PAN
opportunity to be heard (which was saHsfied when
– A post-reporHng noHce and PAN do not bear the gravity of a FAN;
TP protested the FAN and submi"ed relevant they merely hint at the iniHal findings of the BIR and invite the TP to
supporHng documents)? an informal conference. Neither contains a declaraHon of the tax
liability of the TP or a demand for payment thereof. Hence, the lack
– Must be raised though as an affirmaHve defense in of such noHces inflicts prejudice on the TP for as long as the la"er is
the protest to the FAN (otherwise if not raised, properly served a FAN
might be considered waived)
A"y. Terence Conrad H. Bello Slide No. 11 A"y. Terence Conrad H. Bello Slide No. 12
A"y. Terence Conrad H. Bello Slide No. 13 A"y. Terence Conrad H. Bello Slide No. 14
next meeting
D. Req’t to Inform Taxpayer of Factual and Legal Basis of Assessment D. Req’t to Inform Taxpayer of Factual and Legal Basis of Assessment
A"y. Terence Conrad H. Bello Slide No. 15 A"y. Terence Conrad H. Bello Slide No. 16
D. Req’t to Inform Taxpayer of Factual and Legal Basis of Assessment D. Req’t to Inform Taxpayer of Factual and Legal Basis of Assessment
A"y. Terence Conrad H. Bello Slide No. 17 A"y. Terence Conrad H. Bello Slide No. 18
D. Req’t to Inform Taxpayer of Factual and Legal Basis of Assessment D. Req’t to Inform Taxpayer of Factual and Legal Basis of Assessment
A"y. Terence Conrad H. Bello Slide No. 19 A"y. Terence Conrad H. Bello Slide No. 20
D. Req’t to Inform Taxpayer of Factual and Legal Basis of Assessment D. Req’t to Inform Taxpayer of Factual and Legal Basis of Assessment
D. Req’t to Inform Taxpayer of Factual and Legal Basis of Assessment E. Submission of SupporHng Documents
CIR v. Enron Subic Power Corp. § § 228 requires the TP to submit all relevant supporHng
§ The advice of tax deficiency, given by the CIR to an employee of TP, docs within 60 days from filing the protest. What is the
as well as the preliminary five-day le"er, were not valid subsHtutes effect if the TP fails to comply with this req’t?
for the mandatory noHce in wriHng of the legal and factual bases of
the assessment. These steps were mere perfunctory discharges of – The assessment becomes final, executory and
the CIR’s duHes in correctly assessing a taxpayer demandable
§ The requirement for issuing a preliminary or final noHce, as the § Who determines whether the TP has submi"ed “all
case may be, informing a taxpayer of the existence of a deficiency
tax assessment is markedly different from the requirement of what relevant supporHng documents?”
such noHce must contain. Just because the CIR issued an advice, a – The TP. “Relevant supporHng documents” refers to
preliminary le"er during the pre-assessment stage and a final such documents which the TP feels would be
noHce, in the order required by law, does not necessarily mean that necessary to support his protest and not what the
TP was informed of the law and facts on which the deficiency tax
assessment was made CIR feels should be submi"ed, otherwise, TPs would
§ The law requires that the legal and factual bases of the assessment always be at the mercy of the BIR which may require
be stated in the formal le"er of demand and assessment noHce producHon of such documents which TP could not
pursuant to RR 12-99 produce. In this manner the assessment could easily
become final
A"y. Terence Conrad H. Bello Slide No. 23 A"y. Terence Conrad H. Bello Slide No. 24
E. Submission of SupporHng Documents E. Submission of SupporHng Documents
A"y. Terence Conrad H. Bello Slide No. 25 A"y. Terence Conrad H. Bello Slide No. 26
A. Scope of JurisdicHon of CTA/What is Appealable to CTA A. Scope of JurisdicHon of CTA/What is Appealable to CTA
A"y. Terence Conrad H. Bello Slide No. 31 A"y. Terence Conrad H. Bello Slide No. 32
A. Scope of JurisdicHon of CTA/What is Appealable to CTA A. Scope of JurisdicHon of CTA/What is Appealable to CTA
B. ApplicaHon of the 180-Day Rule B. ApplicaHon of the 180-Day Rule
C. What ConsHtutes Denial of Protest/Decision on Disputed Assessment C. What ConsHtutes Denial of Protest/Decision on Disputed Assessment
A"y. Terence Conrad H. Bello Slide No. 39 A"y. Terence Conrad H. Bello Slide No. 40
C. What ConsHtutes Denial of Protest/Decision on Disputed Assessment C. What ConsHtutes Denial of Protest/Decision on Disputed Assessment
A"y. Terence Conrad H. Bello Slide No. 41 A"y. Terence Conrad H. Bello Slide No. 42
C. What ConsHtutes Denial of Protest/Decision on Disputed Assessment C. What ConsHtutes Denial of Protest/Decision on Disputed Assessment
A"y. Terence Conrad H. Bello Slide No. 45 A"y. Terence Conrad H. Bello Slide No. 46
C. What ConsHtutes Denial of Protest/Decision on Disputed Assessment C. What ConsHtutes Denial of Protest/Decision on Disputed Assessment
D. Period to Appeal/Effect of Failure to Appeal E. Mode of Appeal and Effect of Appeal
Mambulao Lumber Co. v. CIR 1. What is the TP’s remedy in case the BIR denies the protest
§ CFI ruled in favor of CIR; TP appealed to CA which (i.e., issues an adverse decision on the disputed
assessment ) or fails to act on the same within the 180-day
affirmed CFI period?
§ Held: assessment already final and executory for § Appeal the denial or the inacHon to the CTA within 30 days
TP’s failure to appeal the July 8, 1959 le"er from the denial or from the lapse of the 180-day period by
filing a peHHon for review (RA 1125 § 11)
§ In a suit for collecHon of internal revenue taxes, as § A division of the CTA shall hear the appeal
in this case, where the assessment has already 2. What is the effect of the appeal on the disputed
become final and executory, the acHon to collect is assessment?
akin to an acHon to enforce a judgment § Gen. rule: the appeal will not suspend the payment, levy,
§ No inquiry can be made therein as to the merits of distraint and/or sale of any property of the TP for the
the original case or the justness of the judgment saHsfacHon of his tax liability (RA 1125 § 11, 4th par.)
relied upon. PeHHoner is thus already precluded § Excep*on: when the collecHon will jeopardize the interest of
the gov’t or the TP (court will issue an injuncHon provided
from raising the defense of prescripHon amount claimed is deposited or surety bond is posted for not
more than 2x the amount claimed)
A"y. Terence Conrad H. Bello Slide No. 51 A"y. Terence Conrad H. Bello Slide No. 52
E. Mode of Appeal and Effect of Appeal E. Mode of Appeal and Effect of Appeal
3. What is the TP’s remedy in case the CTA division issues an 5. May the TP appeal the adverse decision of the CTA
adverse decision vs. the TP? division directly to the SC under Rule 45 (on a pure
§ File an MR or new trial within 15 days from noHce of quesHon of law)?
decision (RA 1125 § 11, 3rd par.) § No. Failure to file a moHon for reconsideraHon of an
§ Upon issuance of resoluHon denying the MR or new assailed decision of a CTA division, or at least file a
trial, appeal the same to the CTA En Banc within 15
days from noHce of the resoluHon (RA 1125 § 18; peHHon for review with the CTA en banc, before
Revised Rules of the CTA § 3(b), rule 8) filing a peHHon for review with the SC renders the
4. May the TP appeal the adverse decision directly to the assailed decision final and executory. Commissioner
CTA En Banc without filing an MR? of Customs v. Gelmart Industries Phil., Inc., G.R. No.
§ No. Appeals to the CTA En Banc must be preceded by 169352, February 13, 2009
the Hmely filing of an MR new trial with the CTA
division (Revised Rules of the CTA § 1, rule 8; see also
RA 1125 § 18)
A"y. Terence Conrad H. Bello Slide No. 53 A"y. Terence Conrad H. Bello Slide No. 54
if claim for refund denied, denial must be appealed to CTA within 30 days (Sec.7, RA1125)
no refund allowed beyond 2yr period
whichever is earlier…
A"y. Terence Conrad H. Bello Slide No. 59 A"y. Terence Conrad H. Bello Slide No. 60
D. Effect of Supervening Event E. Offsewng Against Deficiency Assessments
A"y. Terence Conrad H. Bello Slide No. 61 A"y. Terence Conrad H. Bello Slide No. 62
E. Offsewng Against Deficiency Assessments E. Offsewng Against Deficiency Assessments
1. Cases –
BPI SecuriGes Corp. v. CIR
1. Cases –
§ Moreover, it appears that the memorandum-report has not yet FNCB Finance v. CIR
ripened into a formal assessment duly approved by the Regional
Director or by the CIR § TP filed a refund claim
§ Thus, the same can proceed independently of the claim for refund § CIR offered in evidence a report of invesHgaHon
and its merits or demerits may be determined in separate which found TP liable instead for deficiency
proceedings as provided for in the Tax Code
§ The principle that taxes are not subject to set-off or legal income tax
compensaHon must govern, especially in this case where the taxes
and the taxpayer's claim are not fully liquidated, due and
§ Held: automaHc set-off capricious
demandable § ViolaHon of due process
§ In this case, no assessment, whether tentaHve or final, has been
issued to peHHoner. Consequently, we do not find any reason to § Without an assessment, there is no debt from TP
deviate from the above rulings. Thus, the argument of the that can be set-off
respondent that peHHoner's refund claim must be denied on the
basis of the findings and recommendaHon in the memorandum
issued by the Revenue Officer does not deserve consideraHon
v Ques*on: what if there was already a FAN that the TP protested, would
the result be different?
A"y. Terence Conrad H. Bello Slide No. 63 A"y. Terence Conrad H. Bello Slide No. 64
no cost of suit, no interest
F. Liability of Government for Interest, A"orney’s Fees, Etc. G. Taxes not Subject to Set-Off
G. Taxes not Subject to Set-Off G. Taxes not Subject to Set-Off
A"y. Terence Conrad H. Bello Slide No. 67 A"y. Terence Conrad H. Bello Slide No. 68
G. Taxes not Subject to Set-Off
Summary –
1. Government invokes set-off (denies refund on account of
pending assessment):
§ Doctrine: government cannot defeat TP’s enHtlement
to refund on account of a proposed assessment
v OpHons available to the government:
– Formalize/finalize assessment (i.e., issue FAN),
then invoke Cebu Portland
– If there is a final judgment awarding the refund
claim, distrain judgment debt
2. TP invokes set-off (refuses to pay assessment on account
of pending refund claim):
VI. APPEAL IN CASE OF DENIAL OF
§ No set-off rule in RP v. Mambulao: collecHon of taxes REFUND/TAX CREDIT CLAIM
cannot await result of a lawsuit determining propriety
of refund claim
A"y. Terence Conrad H. Bello Slide No. 69 A"y. Terence Conrad H. Bello 70
A"y. Terence Conrad H. Bello Slide No. 71 A"y. Terence Conrad H. Bello 72
Decision on “Other Ma"ers” Decision on “Other Ma"ers”
1. What may be appealed to the CTA pursuant to par. Rodriguez v. Blaquera
2, Sec. 4 of the NIRC and Sec. 7(a)(1) of RA 9282? § Decision of the CIR on the ma"er of an enforcement
§ Decisions on: of the NaHonal Internal Revenue Code
Ø Disputed assessments
Ø Disputed refund
Ø Other ma"ers arising under the NIRC and
other tax laws
A"y. Terence Conrad H. Bello Slide No. 73 A"y. Terence Conrad H. Bello Slide No. 74
A"y. Terence Conrad H. Bello Slide No. 75 A"y. Terence Conrad H. Bello Slide No. 76
Decision on “Other Ma"ers” Decision on “Other Ma"ers”
Appeal Remedy vs. Challenged BIR Issuances Appeal Remedy vs. Challenged BIR Issuances
§ If the BIR issues a Rev. Regs., RMO or RMC that is § Sec. 4, par. 1
perceived to be contrary to law, what is the Ø Power to interpret the provisions of the Tax
taxpayer’s appeal remedy?
Code and other tax laws
§ ConflicHng decisions on proper remedy
Ø subject to review by the Sec. of Finance
§ Sec. 4, par. 2
Ø Power to decide disputed assessments,
refunds, or other mahers arising under the
Tax Code and other tax laws
Ø Subject to appellate jurisdicHon of the CTA
A"y. Terence Conrad H. Bello Slide No. 77 A"y. Terence Conrad H. Bello Slide No. 78
§ What is the scope of the DOF’s review power under § CTA has appellate jurisdicHon over decisions
Sec. 4? of the CIR on “other ma"ers arising under the
– The Sec. of Finance only has the power of review Tax Code or other laws administered by the
over interpretaHons of the CIR of the provisions of
the NIRC or other tax laws
[BIR]” (Sec. 4, 2nd par.)
§ What is covered by the CIR’s power of interpretaHon?
– Decision of CIR on “other ma"ers” should be
quasi-judicial in nature for the 2nd par. of Sec. 4
– The power of administraHve agencies, such as the
to apply
BIR, to interpret and construe the statutes
entrusted to them for implementaHon is an – See, however, CIR v. Leal (SC held that CTA has
exercise of the quasi-legislaHve power of jurisdicHon over RMCs issued by BIR)
administraHve agencies as disHnguished from their
quasi-judicial power
A"y. Terence Conrad H. Bello Slide No. 81 A"y. Terence Conrad H. Bello Slide No. 82
Appeal Remedy vs. Challenged BIR Issuances Appeal Remedy vs. Challenged BIR Issuances
BriGsh American Tobacco v. Camacho, G.R. 163583, Aug. 20, 2008
Asia Int’l AucGoneers v. Parayno, G.R. 163445, Dec. 18, § While RA 9282 confers on CTA jurisdicHon to resolve tax disputes
2007 in general, this does not include case where the consHtuHonality
§ CiHng Leal, Blaquera, SC held that assailed RMC is a of a law or rule is challenged
ruling or opinion of the CIR on the tax treatment of § Where what is assailed is the validity or consHtuHonality of a law,
or a rule or regulaHon issued by the administraHve agency in the
sale of motor vehicles in public aucHon within SBF performance of its quasi-legislaHve funcHon, the regular courts
appealable to CTA have jurisdicHon to pass upon the same
§ Also held that failure of TPs to ask for § The determinaHon of whether a specific rule or set of rules issued
by an administraHve agency contravenes the law or the
reconsideraHon of the assailed issuances is another
consHtuHon is within the jurisdicHon of the regular courts
reason for dismissal of the case
A"y. Terence Conrad H. Bello Slide No. 85 A"y. Terence Conrad H. Bello Slide No. 86
Appeal Remedy vs. Challenged BIR Issuances Appeal Remedy vs. Challenged BIR Issuances
Sunlife of Canada v. CIR, CTA Case No. 7833, Jan. 12, Gorospe v. Vinzons-Chato, G.R. 132228, Jan. 21,
2009 2003
§ Decision of CIR to issue RMC clarifying taxability of § PeHHon before SC assailing validity of RMC
insurance companies for MCIT, business tax and DST dismissed for non-exhausHon of administraHve
purposes not a “decision” contemplated by Sec. 7 of remedies. SC held, ciHng Sec. 4:
RA 1125 that is appealable to the CTA
Ø PeHHoners should have asked CIR for a
§ Since principal relief sought is to declare null and
reconsideraHon
void RMC 30-2008, the same is outside jurisdicHon
of CTA (ciHng BriGsh American Tobacco) Ø If acHon on reconsideraHon is adverse, denial
should have been appealed to SecFin
A"y. Terence Conrad H. Bello Slide No. 87 A"y. Terence Conrad H. Bello Slide No. 88
Decision on “Other Ma"ers” Decision on “Other Ma"ers”
Appeal Remedy vs. Challenged BIR Issuances Appeal Remedy vs. Challenged BIR Issuances
Philamlife v. Sec. of Finance, G.R. 210987, Nov. 24, 2014 Philamlife v. Sec. of Finance, G.R. 210987, Nov. 24, 2014
§ BIR issued a ruling denying the request of TP that the § Held: Reviews by the Secretary of Finance pursuant to Sec. 4
sale of shares at a price below FMV is not subject to of the NIRC are appealable to the CTA under “other ma"ers”
donor’s tax § Appellate power of the CTA includes cerHorari pursuant to
City of Manila v. Grecia-Cuerdo, G.R. 175723, Feb. 4, 2014
§ BIR anchored denial on Rev. Regs 6-2008 which treats
sale of shares at below FMV as “deemed donaHons” § City of Manila diametrically opposes BriGsh American
subject to donor’s tax Tobacco to the effect that it is now within the power of the
CTA, through its power of cerHorari, to rule on the validity of
§ TP’s Sec. 4 appeal of the adverse ruling to the Sec. of a parHcular administraHve rule or regulaHon so long as it is
Finance denied within its appellate jurisdicHon. Hence, it can now rule not
§ TP appealed decision of the Sec. of Finance to the CA only on the propriety of an assessment or tax treatment of
(instead of the CTA), where it sought to invalidate a certain transacCon, but also on the validity of the revenue
regulaCon or RMC on which the assessment is based
A"y. Terence Conrad H. Bello Slide No. 89 A"y. Terence Conrad H. Bello Slide No. 90
Appeal Remedy vs. Challenged BIR Issuances Appeal Remedy vs. Challenged BIR Issuances
Banco de Oro v. RP, G.R. 198756, Jan. 13, 2015 Recap:
§ BIR rulings subjecHng to withholding tax on maturity of
the so-called PEACe Bonds appealed directly to SC
1. Indirect (Collateral) A"ack: e.g., denial of protest on
§ SC held that non-exhausHon of administraHve remedies
an assessment for alleged deficiency income tax and
proper (purely quesHon of law and urgency of judicial VAT on condominium dues on the basis of RMC
intervenHon excepHons) 65-2012 – appeal denial to CTA
§ Appeal of the quesHoned tax rulings to the Secretary of
Finance would have been proper remedy (ciHng 1st par.
of Sec. 4)
§ SC agreed with BIR that jurisdicHon to review rulings of
the CIR pertains to the CTA, ciHng Leal and Blaquera
A"y. Terence Conrad H. Bello Slide No. 91 A"y. Terence Conrad H. Bello Slide No. 92
Decision on “Other Ma"ers”
1. When is an assessment deemed made? 2. Effect of filing an amended return
Basilan Estates, Inc. v. CIR § What is the effect of filing an amended return?
§ Besides, even granHng that noHce had been – It has the effect of extending the prescripHve
received by the TP late, as alleged, under SecHon period to assess, if the amendment is
substanHal
331 of the Tax Code requiring five years within
which to assess deficiency taxes, the assessment
is deemed made when noHce to this effect is
released, mailed or sent by the Collector to the
taxpayer and it is not required that the noHce be
r e c e i v e d b y t h e t a x p a y e r w i t h i n t h e
aforemenHoned five-year period
A"y. Terence Conrad H. Bello Slide No. 95 A"y. Terence Conrad H. Bello Slide No. 96
A. Period to Assess A. Period to Assess
2. Effect of filing an amended return 2. Effect of filing an amended return
CIR v. Phoenix Assurance Co.
CIR v. Phoenix Assurance Co.
§ The changes and alteraHons embodied in the amended
ITR consisted of the exclusion of reinsurance premiums § Ra*onale:
received from domesHc insurance companies by TP’s – To strengthen our opinion, we believe that to hold
London head office, reinsurance premiums ceded to
foreign reinsurers not doing business in the Philippines otherwise, we would be paving the way for TPs to
and various items of deducHon a"ributable to such evade the payment of taxes by simply reporHng in
excluded reinsurance premiums, thereby substanCally their original return heavy losses and amending the
modifying the original return
same more than five years later when the CIR has
§ Considering that the deficiency assessment was based on
the amended return which, as aforestated, is lost his authority to assess the proper tax
substanCally different from the original return, the thereunder. The object of the Tax Code is to
period of limitaHon of the right to issue the same should impose taxes for the needs of the Government, not
be counted from the filing of the amended income tax
return to enhance tax avoidance to its prejudice
A"y. Terence Conrad H. Bello Slide No. 97 A"y. Terence Conrad H. Bello Slide No. 98
3. Effect of filing a wrong return 3. Effect of filing a wrong return
§ What is the effect of filing a wrong return? Butuan Sawmill, Inc. v. CTA
– The effect is as if no return is filed (thus the § Held: an ITR cannot be considered as a return for
applicable prescripHve is 10 yrs. from compensaHng tax for purposes of compuHng the
discovery of the omission to file a return, period of prescripHon under SecHon 331 of the Tax
rather than the 3-year ordinary prescripHve Code, and that the TP must file a return for the
period) parHcular tax required by law in order to avail
himself of the benefits of SecHon 331 of the Tax
Code;
§ Otherwise, if he does not file a return, an
assessment may be made within the Hme stated in
SecHon 332(a) of the same Code
A"y. Terence Conrad H. Bello Slide No. 99 A"y. Terence Conrad H. Bello Slide No. 100
A. Period to Assess A. Period to Assess
4. How prescripHve period counted 5. Gen. rule: 3 years (ordinary prescripHon) – Sec. 203
CIR v. Primetown Prop. Group, Inc. 6. ExcepHons: 10 years (extraordinary prescripHon)
§ When the law speaks of a “year,” it is understood to be § False/fraudulent return or no return – Sec.
12 calendar months
222(a)
§ A calendar month is “a month designated in the
calendar without regard to the number of days it may § Waiver of prescripHve period – Sec. 222(b)
contain” § Suspension of prescripHve period – Sec. 223
§ It is the “period of Hme running from the beginning of - CIR prohibited from assessing or collecHng + 60 days
a certain numbered day up to, including, the - Request for reinvesHgaHon by TP which is granted
corresponding numbered day of the next month, and if - TP cannot be located in address given in return
there is not a sufficient number of days in the next
- No property to saHsfy WDL
month, then up to and including the last day of that
- TP is out of the Philippines
month”
A"y. Terence Conrad H. Bello Slide No. 101 A"y. Terence Conrad H. Bello Slide No. 102
6. ExcepHon: false/fraudulent return or no return (10 6. ExcepHon: false/fraudulent return or no return (10
years) years)
§ Ques*on: what are the instances when the 10- Taligaman Lumber Co. v. CIR
year prescripHve period applies? § TP assessed deficiency sales tax
– False/fraudulent return with intent to evade § TP argued that assessment prescribed
payment of taxes § BIR argued that TP did not file returns, hence, the 10-year
period applies
– No return § Held: no showing that returns were filed, hence, 10-year
§ Ques*on: when do you start counHng the 10- period applies
year period? § TP objects to the applicaHon of the 10-year prescripHve
period upon the ground that there is no affirmaHve
– Counted from discovery of falsity, fraud or evidence that it had not filed the corresponding returns for
omission the years 1948-1949
A"y. Terence Conrad H. Bello Slide No. 103 A"y. Terence Conrad H. Bello Slide No. 104
OM: doesn’t need to be willful neglect for the 10yr assessment period to set i
6. ExcepHon: false/fraudulent return or no return (10 6. ExcepHon: false/fraudulent return or no return (10 years)
years) Aznar v. CTA
Taligaman Lumber Co. v. CIR § Ruling of CTA: 10-year period applies; substanHal under-
declaraHons of income for 6 consecuHve years
§ Thus the issue boils down to which of the two parHes had demonstrate the falsity or fraudulence of the ITRs
the burden of proving such failure to file said returns. § Held: 10-year period applies; return of TP “false”
§ It is, however, clear that since prescripHon is one of the § 3 instances jusHfying applicaHon of 10-year period: (a)
affirmaHve defenses set up by TP herein, it was incumbent false return, (2) fraudulent return with intent to evade
upon the la"er, if it wanted to avail itself of the benefits of payment of taxes, and (3) failure to file a return
SecHon 331 (5-year prescripHve period), to prove that it had § There is a difference between “false return” and
submi"ed said returns, and that, having failed to do so, the “fraudulent return”
conclusion must be that no such returns had been filed and § “False return” implies deviaHon from the truth, whether
that the Government had 10 years within which to make intenHonal or not
the corresponding assessments, as it did in this case
§ “Fraudulent return” implies intenHonal or deceizul entry
with intent to evade the taxes due
A"y. Terence Conrad H. Bello Slide No. 105 A"y. Terence Conrad H. Bello Slide No. 106
6. ExcepHon: false/fraudulent return or no return (10 years) 6. ExcepHon: false/fraudulent return or no return (10 years)
Aznar v. CTA CIR v. B.F. Goodrich
§ The ordinary period of prescripHon of 5 years within
which to assess tax liabiliHes under Sec. 331 of the § CIR insists that TP commi"ed “falsity” when it
NIRC should be applicable to normal circumstances, sold the property for a price lesser than its
but whenever the government is placed at a declared FMV
disadvantage so as to prevent its lawful agents from
proper assessment of tax liabiliHes due to false § This fact alone did not consHtute a false return
returns, fraudulent return intended to evade payment which contains wrong informaHon due to
of tax or failure to file returns, the period of ten years
provided for in Sec. 332 (a) NIRC, from the Hme of the mistake, carelessness or ignorance
discovery of the falsity, fraud or omission even seems
to be inadequate and should be the one enforced v This case thus establishes the rule that not all
§ Issue: W/N the 50% fraud surcharge should apply erroneous entries in the return will render the
(which the CTA imposed) same “false” for purposes of applying the 10-yr.
§ Held: No prescripHve period
A"y. Terence Conrad H. Bello Slide No. 107 A"y. Terence Conrad H. Bello Slide No. 108
CTA CASES: there must be culpable negligence to be “FALSE”
6. ExcepHon: false/fraudulent return or no return (10 years) 6. ExcepHon: false/fraudulent return or no return (10
Telesat, Inc. v. CIR years)
§ In order to render a return made by TP a “false return” Estate of Reyes. v. CIR
within the meaning of Sec. 223, there must appear a § TP conten*on: phrase “with intent to evade tax”
design to mislead or deceive on the part of the TP, or at qualifies both false and fraudulent returns; their
least culpable negligence
supposed good faith in commiwng errors negates
§ A mistake not culpable in respect of its value would not intent to evade
consHtute a false return
§ In fact SC has held that mere falsity of a return does not § Held: pursuant to Aznar, false return do not
merit the applicaHon of the 10-year prescripHve period necessarily mean with intent to evade taxes,
otherwise, there will be no disHncHon between false
§ The element of fraud as in the case of TP’s intent to and fraudulent returns
evade payment of the correct amount of tax, must be
clearly established § Returns “false” because there were substanHal
§ TP was able to explain discrepancy as merely a Hming underdeclaraHons of properHes and substanHal
difference due to accounHng method overstatement of deducHons
A"y. Terence Conrad H. Bello Slide No. 109 A"y. Terence Conrad H. Bello Slide No. 110
6. ExcepHon: waiver of prescripHve period 6. ExcepHon: waiver of prescripHve period
RP v. Acebedo CIR v. CA
§ Even the waiver signed by TP on Dec. 17, 1959 § Conten*on of BIR: waivers valid even if not signed by CIR
could no longer revive the right of acHon, for because (a) when RO extended the period to conduct audit,
under the law such waiver must be executed CIR gave implied consent, (b) signature of CIR mere formality
within the original five-year period within which and the lack of it does not viHate the binding effect of the
suit could be commenced waiver, (c) waiver is not a contract but a unilateral act of
renouncing one’s right to avail of the defense of prescripHon
§ Held: the waiver of the prescripHve period must be in wriHng
and signed by both the TP and the CIR; the waivers are invalid
and without binding effect on TP for lack of CIR’s consent
§ It is the very signatures of the TP and CIR that give birth to a
valid agreement
A"y. Terence Conrad H. Bello Slide No. 111 A"y. Terence Conrad H. Bello Slide No. 112
A. Period to Assess A. Period to Assess
6. ExcepHon: waiver of prescripHve period 6. ExcepHon: waiver of prescripHve period
Phil. Journalists, Inc. v. CIR Phil. Journalists, Inc. v. CIR
§ Held: assessment prescribed as waiver did not § Waiver unlimited
comply with RMO 20-90 § Waiver not signed by CIR (only RD Officer)
§ Waiver of statute of limitaHons not a waiver of § Waiver bilateral act not unilateral
the right to invoke defense of prescripHon § Date of acceptance not stated (thus, not clear if waiver
executed before expiraHon of prescripHve period)
§ TP not furnished copy of duly accepted waiver (which
effecHvely noHfies TP that waiver was accepted)
§ Conclusion: (1) waiver defecHve, hence, did not operate to
extend prescripHve period; (2) consequently, assessment
invalid because it was issued beyond prescripHve period;
and (3) WDL null and void for having been issued on the
basis of an invalid assessment
A"y. Terence Conrad H. Bello Slide No. 113 A"y. Terence Conrad H. Bello Slide No. 114
6. ExcepHon: waiver of prescripHve period 6. ExcepHon: waiver of prescripHve period
CIR v. Kudos Metal: Reqt’s of valid waiver CIR v. Next Mobile, Inc.: doctrine of equitable estoppel
a) Waiver must be in proper form prescribed by RMO 20-90
• CTA found the following flaws in mulHple waivers executed
b) Waiver must be signed by TP himself or his duly authorized by the TP: (i) lack of notarized board authority; (ii) dates of
representaHve. In case of corporaHon, authority of person
signing waiver must be in wriHng and duly notarized acceptance by the BIR not indicated; (iii) fact of receipt by
the TP not indicated
c) Waiver should be duly notarized
d) CIR or his duly authorized representaHve must sign the waiver • Instead of ruling in the same manner as Kudos Metal, SC
indicaHng acceptance. Date of acceptance should be indicated applied the doctrine of equitable estoppel and disregarded
e) Both date of execuHon and date of acceptance must be before the obvious deficiencies in the waivers and sided with the
prescripHve period lapses BIR
f) Waiver must be executed in three copies: original to docket; 2nd • SC observed that both parHes at fault and that TP knew of
copy to TP; 3rd copy to Office accepHng waiver. Fact of receipt of the defects in the waivers, yet did nothing to correct them,
TP’s copy should be indicated in the original copy to show that TP and instead quesHoned later on the very same deficiencies
was noHfied of acceptance by BIR and perfecHon of agreement
that the TP caused to avoid liability
A"y. Terence Conrad H. Bello Slide No. 115 A"y. Terence Conrad H. Bello Slide No. 116
A. Period to Assess A. Period to Assess
6. ExcepHon: waiver of prescripHve period 6. ExcepHon: suspension of prescripHve period
RCBC v. CIR: Estoppel to quesHon validity of waivers
• TP executed waivers a. What are the instances which will suspend the
• Received FAN/FLDs for deficiency income tax, GRT, FWT, final tax on FCDU prescripHve period to assess, begin distraint/levy and
onshore income, EWT and DST
• Protest, then later on appealed the inacHon to the CTA
file a civil suit for collecHon?
• Subsequently, TP received a revised FLD/FAN following the request for i. CIR is prohibited from assessing, beginning
reinvesHgaHon requested by TP reducing the amount of the original assessment
• TP paid deficiency income tax, GRT, FWT, EWT and DST
distraint/levy or proceeding in court and for 60
• TP refused to pay final tax on FCDU onshore income and DST which remained the days thereaser
subject of the CTA peHHon
• TP argued that waivers void
ii. When TP requests reinvesHgaHon which is granted
• Held: TP estopped from quesHoning validity of waivers. Through its parHal by the CIR
payment of the amount assessed within the extended period as provided in the iii. TP cannot be located
waivers, TP impliedly admi"ed the validity of the waivers
• Had TP truly believed that the waivers were invalid and the assessments barred by iv. When WDL is duly served and no property could be
prescripHon, then it should not have paid the reduced amount of taxes in the located
revised assessments
v. When TP is out of the Philippines (§ 223)
A"y. Terence Conrad H. Bello Slide No. 117 A"y. Terence Conrad H. Bello Slide No. 118
6. ExcepHon: suspension of prescripHve period § Taxes assessed within prescripHve period
ConGnental Micronesia, Inc. v. CIR
§ While We have noted that the request for reinvesHgaHon which was
may be collected by distraint or levy or by a
granted by the CIR in the case at bar was on the PAN and not on the proceeding in court within 5 years following
FAN, sHll, § 223 applies. the assessment of the tax – Sec 223(c)
§ § 223 of the Code makes no disHncHon as to whether the request for
reinvesHgaHon of an assessment against the taxpayer is on a PAN or § 5-year period could be extended by
FAN. It is a well-known maxim in statutory construcHon that where agreement of the CIR and the TP – Sec.
the law does not disHnguish, We should not disHnguish.
§ Thus, for as long as the request for reinvesHgaHon is granted by the
223(d)
CIR, the running of statute of limitaHons to issue an assessment
under § § 203 and 223 is suspended.
§ It is further worthy to stress that the suspension of the running of
Statute of LimitaHons provided in § § 203 and 222 refers to the
phrase "on the making of assessment" which phrase refers to the
three-year or ten year period, as the case may be, which includes the
issuance of a PAN. Hence, when TP requested for a reinvesHgaHon
on the PAN, the making of the assessment was tolled
A"y. Terence Conrad H. Bello Slide No. 119 A"y. Terence Conrad H. Bello Slide No. 120
B. Period to Collect B. Period to Collect
A"y. Terence Conrad H. Bello Slide No. 121 A"y. Terence Conrad H. Bello Slide No. 122
A"y. Terence Conrad H. Bello Slide No. 123 A"y. Terence Conrad H. Bello Slide No. 124
B. Period to Collect B. Period to Collect
E. Period to File Refund Claim E. Period to File Refund Claim
A"y. Terence Conrad H. Bello Slide No. 141 A"y. Terence Conrad H. Bello Slide No. 142
E. Period to File Refund Claim E. Period to File Refund Claim
A"y. Terence Conrad H. Bello Slide No. 143 A"y. Terence Conrad H. Bello Slide No. 144
E. Period to File Refund Claim E. Period to File Refund Claim
E. Period to File Refund Claim E. Period to File Refund Claim
A"y. Terence Conrad H. Bello 151 A"y. Terence Conrad H. Bello Slide No. 152
B. Non-RetroacHvity of Rulings/Regs. B. Non-RetroacHvity of Rulings/Regs.
A"y. Terence Conrad H. Bello Slide No. 153 A"y. Terence Conrad H. Bello Slide No. 154
A"y. Terence Conrad H. Bello Slide No. 155 A"y. Terence Conrad H. Bello Slide No. 156