Tax Remedies

The remedies of the GovernmentTAXATION REMEDIES has been allowed, in every age and country, for the collection by the government of its revenues. They have been considered a matter of State necessity.The existence of the government depending on regular collection must, as an object of primary importance, be insured. With this objective in mind, promptness in collection is always desirable, if not imperative.* Justice Japar Dimaampao, Tax Principles and Remedies

TAXATION LAW 2Saturday TAXATION REMEDIES OF THE GOVERNMENT December 12

NEWS

WHERE IT STARTS-ASSESSMENT

What is it?An assessment is the notice to the effect that the amount therein stated is due from a taxpayer as a tax with a demand for payment of the same within a stated period of time.

CIR v. CTA, 27 SCRA 1159

For its validity, an assessment must comply with the following requisites:(1) The taxpayer shall be

informed in writing of the law and the facts on which the assessment is made [Sec. 228, NIRC]

(2) An assessment contains not only a computation of tax liabilities, but also a demand for payment within a prescribed period [CIR v. PASCOR]

(3) An assessment must be served on and received by the taxpayer [CIR v. PASCOR]

Assessment precedes collection except when the unpaid tax is a tax due per return as in the case of a self-assessed income tax under the pay-as-you-file system in which case collection may be instituted without need od assessment pursuant to Section 56 of the NIRC.

December 12, Saturday

CONCEPT OF ASSESSMENT

Assess means to impose a tax; to charge with a tax; to declare a tax to be payable; to apportion a tax to be paid or contributed, to fix a rate; to fix or settle a sum to be paid by way of tax; to set, fix or charge a certain sum to each taxpayer; to settle determine or fix the amount of tax to be paid.

[84 C.J.S 74-750]

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Section 56. Payment and Assessment of Income Tax for Individuals and Corporations

When are installments made?1.First installment shall be paid at the time the time return in filed

2.Second installment shall be on or before July 15 following the close of the calendar year.

If any installment is not paid on or before the date fized for its payment, the whole amount becoms due and payable with delinquency penalties.

Who has the burden of proof in pre-assessment proceedings?

The burden of proof is on the taxpayer for there is a presumption of correctness on the part of the CIR. Otherwise, the finding of the CIR will be conclusive and the CIR will assess the taxpayer. If the taxpayer does not controvert, such finding

is conclusive, even if the CIR is wrong.


(A) Payment of Tax-

(1) In General.- The total amount of tax imposed by this Title shall be paid by the person subject thereto at the time the return is filed.xxx

(2) Installment payment- When the tax due is in excess of Two Thousand Pesos (P2,000.00), the taxpayer other than a corporation may elect to pay in two equal installments.

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What is a Letter of Authority (LA)?

How is Assessment conducted?1. Issuance of a letter of authority

2. Audit stage

3. Issuance of notice of informal conference

4. Informal conference

5. Issuance of preliminary assessment notice

6. Issuance of formal letter of demand and assessment notice

When must an LA be served?It must be served to the taxpayer within 30 days from its date of issuance; otherwise, it shall become null and void. The taxpayer shall then have the right to refuse the service of this LA, unless the LA is revalidated.


It is an official document that empowers a Revenue Officer (RO) to examine and scrutinize a taxpayer’s books of accounts and other accounting records, in order to determine the taxpayer’s correct internal revenue tax liabilities.

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What are the cases which need not be covered by a

valid LA?


2. Audit stage





How is LA revalidated? How often can it be revalidated?

Revalidated through the issuance of a new LA. It can be revalidated only once, if issued by the Regional Director; twice, if issued by the CIR. The suspended LA(s) must be attached to the new issued LA. (RMO 38-88)


1. Cases involving civil or criminal tax fraud which fall under the jurisdiction of the tax fraud division of the Enforcement Services; and

2. Policy cases under audit by the Special Teams in the National Office (RMO 36-99)

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How many times can a taxpayer be subjected to examination and inspection for the same taxable year?


2. Audit stage





Within what period should a RO conduct an audit?

A RO is allowed only 120 days to conduct the audit and submit the required report of investigation from the date of receipt of a LA by the taxpayer. If the RO is unable to submit his final report of investigation within the 120-day period, he must then submit a Progress Report to his Head of Office, and surrender the LA for revalidation.


General Rule: Only once per taxable year. Exceptions:1. When the CIR determines that Fraud,

irregularities, or mistakes were committed by the taxpayer;

2. When the taxpayer himself requests for the Re-investigation or re-examination of his books of accounts and it was granted by the commissioner;

3. When there is a need to verify the taxpayer’s Compliance with withholding and other internal revenue taxes as prescribed in a Revenue Memorandum Order issued by the Commissioner;

4. When the taxpayer’s Capital gains tax liabilities must be verified; and

5. When the Commissioner chooses to exercise his power to obtain information relative to the examination of other taxpayers (Secs. 5 and 235, NIRC)

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Within how many days must the taxpayer respond to the NIC?


2. Audit stage




6. Issuance of formal letter of demand and assessment notice What is a Notice for Informal

Conference (NIC)?It is a written notice informing a taxpayer that the

findings of the audit conducted on his books of accounts and accounting records indicate that additional taxes or deficiency assessments have to be paid. If, after the culmination of an audit, a RO recommends the imposition of deficiency assessments, this is communicated by the Bureau to the taxpayer concerned during an informal conference called for this purpose.


The taxpayer have 15 days from the date of his receipt to explain his side.

What is the effect if taxpayer fails to respond to the NIC?

If the taxpayer fails to respond within 15 days from date of receipt of the NIC, he shall be considered in default, in which case, the Revenue District Officer or the Chief of the Special Investigation Division of the Revenue Regional Office, or the Chief of Division in the National Office, as the case may be, shall endorse the case with the least possible delay to the Assessment Division of the Revenue Regional Office or to the CIR or his duly authorized representative, as the case may be, for appropriate review and issuance of a deficiency tax assessment, if warranted. (Sec 3.1.1, RR 12-99)

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What matters are taken up during informal conference?


2. Audit stage





What is the purpose of Informal Conference (IC)?

It is to afford the taxpayer the opportunity to present his case.


1. Discussion on the merits of the assessment

2. Attempt of the taxpayer to convince the examiner to conduct a reinvestigation and/or re-examination

3. Evaluate if submission of the waiver of the statute of limitations is necessary because evaluation may extend beyond 3 years

4. Taxpayer to advise the examiner if position paper will be submitted

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What are the requirements of a valid PAN?


2. Audit stage





What is a Pre-Assessment Notice (PAN)?

It is a communication issued by the Regional Assessment Division, or any other concerned BIR Office, informing a taxpayer who has been audited of the findings of the RO, following the review of these findings.


1. In writing; and 2. Should inform the taxpayer of the

law and the facts on which the assessment is made (Sec. 228, NIRC)

Note: This is to give the taxpayer the opportunity to refute the findings of the examiner and give a more accurate and detailed explanation regarding the assessments. The absence of any of the requirements shall render the assessment void.Within what period must the

taxpayer respond to PAN?If the taxpayer disagrees with

the findings stated in the PAN, he has 15 days from receipt of the PAN, to file a written reply contesting the proposed assessment. Failure to respond within 15 days will render taxpayer in default and assessment notice will be issued to him (RR 12-99)

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Who issues the FAN? How is Assessment conducted?1. Issuance of a letter of authority

2. Audit stage





What is a Notice of Assessment/Formal Letter of Demand (FAN)?

It is a declaration of deficiency taxes issued to a taxpayer who fails to respond to a PAN within the prescribed period of time, or whose reply to the PAN was found to be without merit.


It shall be issued by the Commissioner or his duly authorized representative.

In what form shall the FAN be and what should it contain?

1. In writing; and 2. Shall state the facts, the law, rules

and regulations, or jurisprudence on which the assessment is based, otherwise, the FAN shall be void. (Sec. 228, NIRC; Sec. 3.1.4 RR 12-99)

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CIR V. ATLAS CONSOLIDATED MINING CORPORATION

When is an assessment deemed made?

Assessment is deemed made only when the collector of internal revenue releases, mails, or sends such notice to the taxpayer. A revenue officer’s Affidavit merely contained a computation of respondent’s tax liability. It did not state a demand or a period for payment. Worse, it was addressed to the justice secretary, not to the taxpayers.

Meaning of Best EvidanceThe ‘best evidance’ envisaged in Section 16 of the 1977 NIRC (now Sec. 6 of present NIRC) includes the corporate and accounting records of the taxpayer who is the subject of the assessment process, the accounting records of other taxpayers in the same line of business, inlcuding their gross profit and net profit sales.


HELD: Assessments are prima facie presumed correct and made in good faith. Contrary to the theory of ACMDC, it is the taxpayer and not BIR who has the duty of proving otherwise. It is an elementary rule in the absence of proof of any irregularities in the performance of official duties, an assessment will not be disturbed. Verily, to present proof of error in assessments will justify affirmance of said assessment.

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Best evidence obtainable [Sec 6(B), NIRC]

Are taxes self-assessing?General Rule: Taxes are generally self-assessing

and do not require the issuance of an assessment notice in order to establish the tax liability of a taxpayer.

Exceptions: 1. Improperly Accumulated Earnings Tax (Sec. 29,

NIRC) 2. When the taxable period of a taxpayer is

terminated (Sec. 6 [D], NIRC) 3. In case of deficiency tax liability arising from a

tax audit conducted by the BIR (Sec. 56 [B], NIRC)

4. Tax lien (Sec. 219, NIRC) 5. Dissolving corporation (Sec. 52 [c], NIRC)

ASSESSMENT BASED ON ESTIMATE: 50% RuleIf there is showing that expenses have been incurred but the exact amount thereof cannot be ascertained due to absence of documentary evidence, it is the duty of the BIR to make an estimate of deduction that may be allowable in computing the taxpayer’s taxable income bearing heavily against the taxpayer whose inexactitude is of his own making. That disallowance of 50% of the taxpayer’s claimed deduction is valid.


The CIR shall assess the proper tax on the best evidence obtainable when: (a) the taxpayer fails to submit the required returns, statements reports and other documents;(b) there is a reason to believe that any such report is false, incomplete or erroneous.

However the best evidence obtainable does not include mere photocopies of records/documents. Original records must be used rather than mere copies which are prone to error or tampering.

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WHAT ARE THE REMEDIES OF THE GOVERNMENT?

What is distraint?It is a remedy whereby the collection of the tax is enforced on the goods, chattels, or effects of the taxpayer including other personal property of whatever character as well as stocks and other securities, debts, credits, bank accounts, and interest in the rights to personal property.


1.Distraint of personal property such as goods, chattels, or effects, including stocks and other securities, debts, credits, bank accounts and interest in and rights to personal property, and levy upon real property and interest in or rights to real property (Sec. 205)

2.Civil or criminal action (Sec. 205)

3.Compromise (Sec. 204)4.Tax lien (Sec. 219)5.Forfeiture (Sec. 224)6.Civil Penalties (Sec. 248)

What is levy?It is seizure of real properties and interest in or rights to such properties for the satisfaction of taxes due from the delinquent taxpayer. Levy can be made before, simultaneously, or after the distraint of personal property.

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When is distraint and levy not available?

It bears to stress, however, that the remedy of distraint and levy shall not be availed of where the amount of the tax involved is not more than one hundred pesos (P100.00).





What is their nature?Both remedies are summary in nature and either may be pursued in the discretion of the authorities charged with the collection of tax independently , or simultaneously with civil and criminal action once the assessment becomes final and demandable.

(Central Cement Corp. v. CIR, CTA Case No. 4312)

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What are the types of distraint?

1. Constructive2. Actual





When may constructive distraint be applied?

1. When delinquent taxpayer is retiring from business subject to tax;

2. When delinquent taxpaper is intending to leave Philippines or to remove his property therefrom or to hide or conceal his property;

3. When taxpayer is intending to perform any act intending to obstruct proceedings for collecting the tax due or which may be due from him.

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What are specific cases when CD may be effected?

1. Taxpayer has a record of Leaving the Philippines at least twice a year, unless such business is justified and/or connected with his trade, business or profession;

2. Taxpayer applying for Retirement from business has a huge amount of assessment pending with the BIR;

3. Taxpayer has record of Transferring his bank deposits and other personal properties in the Phil. to any foreign country except if taxpayer is a banking institution;

4. Taxpayer uses Aliases in bank accounts other than the name for which he is legally and/or popularly known;

5. Taxpayer keeps Bank deposits and other properties under the name of other persons, whether or not related to him, and the same are not under any lawful fiduciary or trust capacity;

6. There is big amount of Undeclared income known to the public and to the BIR and there is a strong reason to believe that the taxpayer will hide or conceal his property;

7. BIR receives Complaint or information pertaining to undeclared income (of big amount) and such is supported by substantial and credible evidence.





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What are the types of distraint?

1. Constructive2. Actual





How is constructive distraint effected?

It is effected by requiring the taxpayer or any person having possession of the property:

1. To sign a receipt covering the property distrained;

2. To obligate himself to preserve it intact and unaltered; and

3. Not to dispose of it without the express authority of the CIR.

What if a taxpayer or person having possession of property refuses or fails to sign?

The officer shall: 1. Prepare a list of such property; and 2. Leave a copy of such list in the

premises where the property is located, in the presence of 2 witnesses.

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How is actual distraint effected?

Upon failure to pay the delinquent tax at the time required, the proper officer shall seize and distraint any goods, chattels, or effects, and the personal property, including stocks and other securities, debts, credits, bank accounts and interests in and rights to personal property of the taxpayer in sufficient quantity to satisfy the tax, expenses of distraint and the cost of the subsequent sale.





Who is authorized to issue the warrant of distraint?

1. CIR or his duly authorized representative – if the amount involved is in excess of P1 million; or

2. Revenue District Officer – if the amount involved is P1 million or less. (Sec. 207 [A], NIRC)

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What is the procedure that must be observed in effecting actual distraint? 1. Commencement of distraint proceedings by the

CIR or his duly authorized representatives or by the revenue district officer as the case may be;

2. Service of warrant of distraint upon taxpayer or upon any person in possession of the property;

3. Posting of notice in not less than 2 public places in the municipality or city and notice to taxpayer specifying the time and place of sale and the articles distrained;

4. Sale at public auction to be held not less than 20 days after notice to the owner or possessor of the property and publication or posting of such notice;

5. Disposition of proceeds of the sale;6. Residue over and above what is required to pay the

entire claim, including expenses, shall be returned to the owner of the property sold.





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To whom is the warrant of distraint served?

What are the rules governing the sale?1. The sale must be held at the time and place stated

in the notice. 2. It may be conducted by the Revenue Officer or

through a licensed commodity or stock exchange. 3. If the sale is conducted by the Revenue Officer, it

must be a public auction and the property shall be sold to the highest bidder for cash.

4. If the sale is through a licensed commodity or stock exchange, it must be with the approval of the CIR.

5. In case of stocks and other securities, the officer making the sale shall execute a bill of sale, which shall be delivered to the buyer and to the corporation, company or association which issued the stocks or other securities. Upon receipt of the copy of the bill of sale, an entry of transfer should be made in the company or association’s book and a corresponding certificate of stock shall be issued if required.

6. Any residue over and above what is required to pay the entire claim including expenses shall be returned to the owner of the property sold.

7. The officer making the sale shall make a written report of the proceedings to the CIR within 2 days after the sale (Sec. 211, NIRC)


1.As to tangible goods: a. The owner or person in possession;or b. Someone of suitable age and discretion at the dwelling or place of business of such person.

2. As to stocks and/or securities:a. Upon the taxpayer; and b. President, manager, treasurer or other responsible officer of the corporation.

3. As to debts/credits: a. Upon the person owing the debt; or b. The person having control over the credit or his agent.

4. As to bank accounts: a. Upon the taxpayer and b. The president, manager, treasurer or other responsible officer of the bank.

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When may levy be made?1. It may be made before, simultaneously or after the

distraint of personal property of the same taxpayer.

How is levy on real property effected?

It may be effected by serving upon the taxpayer a written notice of levy in the form of a duly authenticated certificate prepared by Revenue District Officer containing: [DNA]

1. Description of the property upon which levy is made;

2. Name of the taxpayer; 3. Amount of tax and penalty due.





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What are the procedures for levy of real property?1. Preparation of a duly authenticated certificate

which shall operate with force of a legal execution throughout the Philippines.

2. Service of the written notice to the:a. Delinquent taxpayer, or b. If he is absent from the Philippines, to his agent or the manager of the business in respect to which the liability arose, or c. If there be none, the occupant of the property; d. The Registry of Deeds of the place where the property is located shall also be notified;

3. Advertisement of the time and place of sale within 20 days after the levy by posting of notice and by publication for three consecutive weeks.

4. Sale at a public auction. 5. Disposition of proceeds of sale. 6. Residue to be returned to the owner.





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May the taxpayer redeem his property after the consummation of the sale?

Yes, within 1 year from the date of sale, the taxpayer or anyone for him, may pay to the Revenue District Officer the total amount of the following:

1. Public taxes; 2. Penalties; 3. Interest from the date of delinquency

to the date of sale; and 4. Interest on said purchase price at the

rate of 15% per annum from the date of sale to the date of redemption.

Note: If the property was forfeited in favor of the government, the redemption price shall include only the taxes, penalties and interest plus costs of sale – no interest on purchase price since the Government did not “purchase” the property, for it was forfeited. (Sec. 214, NIRC)





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What is a civil action as a tax remedy?

For tax remedy purposes, these are actions instituted by the government to collect internal revenue taxes in the regular courts after assessment by CIR has become final and executory. It includes, however, the filing by the government of claims against the deceased taxpayer with the probate court.





What are the two ways to enforce civil liability through civil actions?

1. By filing a civil case for collection of a sum of money with the proper regular court; or

2. 2. By filing an answer to the petition for review filed by taxpayer with CTA

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When is a civil action resorted to?

It is collectible: 1. When tax is assessed and the assessment

became final and executory because the taxpayer fails to file a protest with the CIR within 30 days from receipt.

2. When a protest against assessment is filed and a decision of the CIR was rendered but the said decision became final, executory and demandable for failure of the tax payer to appeal the decision to the CTA within 30 days from the receipt of the decision.

3. When the protest is not acted upon by the CIR within 180 days from the submission of the documents and the taxpayer failed to appeal with the CTA within 30 days from the lapse of the 180 days period. (Sec. 228, NIRC)





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When is a civil action resorted to?

It is collectible: 1. When tax is assessed and the assessment

became final and executory because the taxpayer fails to file a protest with the CIR within 30 days from receipt.

2. When a protest against assessment is filed and a decision of the CIR was rendered but the said decision became final, executory and demandable for failure of the tax payer to appeal the decision to the CTA within 30 days from the receipt of the decision.

3. When the protest is not acted upon by the CIR within 180 days from the submission of the documents and the taxpayer failed to appeal with the CTA within 30 days from the lapse of the 180 days period. (Sec. 228, NIRC)

Note: In the case of a false or fraudulent return with intent to evade tax or of failure to file a return, a proceeding in court for the collection of such tax may be filed without assessment, at any time within 10 years after the discovery of the falsity, fraud or omission. (Sec. 222 [a], NIRC)





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Where to file?1. CTA - where the principal

amount of taxes and fees, exclusive of charges and penalties claimed is P1 million and above;

2. RTC, MTC, MeTC - where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less than P1 million.

(Sec. 7, R.A. 9282)

COURTS AMOUNT OF TAXES INVOLVED Municipal Trial Courts outside Metro Manila- Amount does not exceed 300,000

Municipal Trial Courts within Metro Manila - Amount does not exceed 400,000

Regional Trial Courts outsideMetro Manila- 300,001 to 999,999

Regional Trial Courts within Metro Manila- 400,001 to 999,999





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Where to file?1. CTA - where the principal

amount of taxes and fees, exclusive of charges and penalties claimed is P1 million and above;

2. RTC, MTC, MeTC - where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less than P1 million.

(Sec. 7, R.A. 9282)

COURTS & AMOUNT OF TAXES INVOLVED

Municipal Trial Courts outside Metro Manila- Amount does not exceed 300,000

Municipal Trial Courts within Metro Manila - Amount does not exceed 400,000

Regional Trial Courts outsideMetro Manila- 300,001 to 999,999

Regional Trial Courts within Metro Manila- 400,001 to 999,999





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What is the purpose of filing a criminal action?

Criminal complaint is instituted not to demand payment but to penalize taxpayer for the violation of the NIRC.

What are the two common crimes punishable under the

NIRC?

1. Willful attempt to evade or defeat tax (Sec. 254, NIRC)

2. Failure to file return, supply correct and accurate information, pay tax, withhold and remit tax and refund excess taxes withheld on compensation (Sec. 255, NIRC)





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Does acquittal in the criminal action on tax liability exonerate the taxpayer from payment of civil liability to pay tax? No. Generally it is the criminal liability that would give rise to the civil liability, but in tax cases the criminal liability arises from the act of not paying the tax due which occurred first. The basis of the civil liability is not from the criminal liability but from the act of not paying the tax. Thus, the exoneration from criminal action will not exonerate the taxpayer from its civil liability. (Republic v. Patanao, GR L-22356, July 21, 1967)

What is the effect of the subsequent satisfaction of civil

liability? The subsequent satisfaction of civil

liability by payment or prescription does not extinguish the taxpayer’s criminal liability.





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May a criminal action be filed despite the lapse of the period to file a civil action for collection of taxes?

Yes, provided that the criminal action is instituted within 5 years from the commission of the violation or from the discovery thereof, whichever is later. Also the two have different prescriptive periods and such period would run independently from each other.

Can there be subsidiary imprisonment in case the taxpayer is insolvent? In case of insolvency on the part of the taxpayer, subsidiary imprisonment cannot be imposed as regards the tax which he is sentenced to pay. However, it may be imposed in cases of failure to pay the fine imposed. (Sec. 280, NIRC)





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Is assessment necessary before a taxpayer may be prosecuted for willfully attempting in any manner to evade or defeat any tax imposed by the NIRC? No, provided there is a prima facie showing of a willful attempt to evade taxes as in the taxpayer’s failure to declare a specific item of taxable income in his income tax returns. A crime is complete when the violator has knowingly and willfully filed a fraudulent return with intent to evade and defeat the tax. (Ungab v. Cusi, GR L-41919-24, May 30, 1980)





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When can a suit to recover tax based on false or fraudulent returns be institutedA proceeding in court for the collection of the tax assessed may be filed without assessment at any time within ten (10) years after the discovery of the falsity, fraud or omission. Provided, that in a fraud assessment which has become final and executor, the fact of fraud shall be judicially taken cognizance of in the civil or criminal action for the collection thereof. [Sec. 222, NIRC]Distinguish between false return v. fraudulent returnA false return is due to mistakes, carelessness or ignorance and a fraudulent return is filed with intent to evade taxes. The fraud contemplated by law is actual and not constructive, and must amount to intentional wrongdoing with the sole object of avoiding the tax. [Aznar v. CTA (1974)]





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Distinguish between a Complaint for Tax Evasion and Assessment.The issuance of an assessment must be distinguished from the filing of a complaint. Before an assessment is issued, there is, by practice a pre-assessment notice sent to the taxpayer. The taxpayer is then given a chance to submit position papers and documents to prove that the assessment is unwarranted. If the CIR is unsatisfied, an assessment is then sent to the taxpayer informing the latter specifically and clearly that an assessment has been made against him or her. In contrast, the criminal charge do not need to go through all these. The criminal charged is filed directly with the DOJ. Thereafter, the taxpayer is notified that a criminal case has been filed against him, not that the commisioner has issued an assessment. It must be stressed that a criminal complaint is institutued not to demand payment but to penalize the taxpayer for violation of the Tax Code.





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What is meant by compromise?

It is an agreement between two or more persons who, amicably settle their differences on such terms and conditions as they may agree on to avoid any lawsuit between them.

It implies the mutual agreement by the parties in regard to the thing or subject matter which is to be compromised. It is a contract whereby the parties, by reciprocal concessions avoid litigation.





When must compromise be made?1. Criminal cases – Compromise must be made prior

to the filing of the information in court.

2. Civil cases – Before litigation or at any stage of the litigation, even during appeal, although legal propriety demands that prior leave of court should be obtained.

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What are the requisites for compromise?

1. Tax liability of the taxpayer;

2. An offer of the taxpayer of an amount to be paid by him; and

3. The acceptance (the CIR or the taxpayer) of the offer in the settlement of the claim

Note: If the offer to compromise was rejected by the taxpayer, the compromise penalty cannot be enforced thru an action in court, or by distraint or levy. If the CIR wants to enforce a penalty he must file a criminal action in the courts. (CIR v. Abad GR L-19627, June 27, 1968)





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What cases can be subject to compromise?1. Delinquent accounts

2. Cases under Administrative protest after issuance of the Final Assessment Notice to the taxpayer which are still pending in the RO, RDO, Legal Service, Large Taxpayer Service, Collection Service, Enforcement Service, and other offices in the National Office

3. Civil tax cases disputed before the courts

4. Collection cases filed in courts

5. Criminal violations except: a. Those already filed in courts; and b. Those involving criminal tax fraud. (Sec.3, RR 30-2002)





What cases cannot be subject to compromise?1. Criminal tax Fraud cases,

confirmed as such by the CIR or his duly authorized representative.

2. Cases where Final reports of reinvestigation or reconsideration have been issued resulting to reduction in the original assessment and the taxpayer is agreeable to such decision by signing the required agreement form for the purpose.

3. Cases which become Final and executory after final judgment of a court, where compromise is requested on the ground of doubtful validity of the assessment. 4. Estate tax cases where compromise is requested on the ground of financial incapacity of the taxpayer.

5. Withholding tax cases, unless the applicant – taxpayer invokes provisions of law that cast doubt on the taxpayer’s obligation to withhold. 6. Criminal violations already filed in courts. 7. Delinquent accounts with duly approved schedule of installment payments.

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What are the grounds for compromise?1. Doubtful validity of assessment; or 2. Financial incapacity





What are the requisites in order for compromise based on financial incapacity be given due course?1. Clear inability to pay the tax; and 2. The taxpayer must waive in writing his privilege of

the secrecy of bank deposit under RA 1405 or other general or special laws, which shall constitute as the CIR’s authority to inquire into said bank deposits (Sec. 6 [F], NIRC)

Define compromise penalty.

It is a certain amount of money paid in lieu of criminal prosecution and cannot be imposed in the absence of a showing that the taxpayer consented thereto.

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When may an offer to compromise a delinquent account or disputed assessment on the ground of reasonable doubt as to the validity of the assessment be accepted? When: 1. The delinquent account or disputed assessment

is one resulting from a jeopardy assessment. 2. The assessment seems to be arbitrary in nature,

appearing to be based on presumptions and there is reason to believe that it is lacking in legal and/or factual basis.

3. The taxpayer failed to file an administrative protest on account of the alleged failure to receive notice of assessment and there is reason to believe that the assessment is lacking in legal and/or factual basis.

4. The taxpayer failed to file a request for reinvestigation/reconsideration within 30 days from receipt of final assessment notice and there is reason to believe that the assessment is lacking in legal and/or factual basis.





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When may an offer to compromise a delinquent account or disputed assessment on the ground of reasonable doubt as to the validity of the assessment be accepted? When:5. The taxpayer failed to elevate to the CTA an

adverse decision of the CIR, or his authorized representative, in some cases, within 30 days from receipt thereof and there is reason to believe that the assessment is lacking in legal and/or factual basis.

6. Assessments made based on the “Best Evidence Obtainable Rule” and there is reason to believe that the same can be disputed by sufficient and competent evidence.

7. Assessment was issued within the prescriptive period for assessment as extended by the taxpayer’s execution of waiver of the Statute of Limitations the validity or authenticity of which is being questioned or at issue and there is strong reason to believe and evidence to prove that it is not authentic. (Sec. 3.1, RR 30- 2002)





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When must compromise be entered into?

It must be entered into prior to the institution of the corresponding criminal action arising out of a violation of the provisions of the Tax Code. A compromise can never be entered into after final judgment because by virtue of such final judgment the Government had already acquired a vested right. (Roviro v. Amparo, G.R. L- 5482, May 5, 1982)

Note: A compromise validly entered into between the CIR and the taxpayer prior to the institution of the corresponding criminal action arising out of a violation of the provisions of the Tax Code becomes a bar to such criminal action. (People v. Magdaluyo, GR L- 16235, Apr. 20,1965)





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Who may compromise tax cases?1. The CIR may compromise with respect to criminal and civil cases arising from violations of the NIRC as well as the payment of any internal revenue tax when:

a. A reasonable doubt as to the validity of the claim against the taxpayer exists provided that the minimum compromise entered into is equivalent to 40% of the basic tax; or

b. The financial position of the taxpayer demonstrates a clear inability to pay the assessed tax provided that the minimum compromise entered into is equivalent to 10% of the basic assessed tax.Note: In these instances, the CIR is allowed to enter into a compromise only if the basic tax involved does not exceed P1M and the settlement offered is not less than the prescribed percentages. (Sec. 204 [A], NIRC) If the basic tax involves exceeds P1 million or when the settlement offered is less than the prescribed minimum rates, the approval of the Evaluation Board is needed. A preliminary compromise may be entered into by subordinate officials subject to review by the CIR.





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Who may compromise tax cases?2. The Regional Evaluation Board (REB) may compromise:

a. Tax assessments by revenue officers involving basic deficiency taxes of P500,000 or less; and

b. For minor criminal violations (RR 7- 2001)

Note: The REB shall becomposed of: a. The Regional Director as Chairman; b. The Assistant Regional Director; c. Chief, Legal Division; d. Chief, Assessment Division; e. Chief, Collection Division; and f. Revenue District Officer having

jurisdiction over the taxpayer-applicant.





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What is the extent of Commissioner’s power to compromise criminal violations? 1. Before the complaint is filed with the

Prosecutor’s Office – full discretion to compromise except those involving fraud;

2. After the complaint is filed with the Prosecutor’s Office but before the information is filed with the court – can still compromise provided that the prosecutor gives his consent;

3. After the information is filed with the court – no longer permitted to compromise with or without the consent of the Prosecutor. (People v. Magdaluyo, GR L-1595, Apr. 20, 1961)





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What are the limitations on the power to compromise a tax liability? 1. Minimum compromise rate:

a. In case of financial incapacity, 10% of basic assessed tax b. In other cases, 40% of basic assessed tax

2. Subject to approval of Evaluation Board: a. When basic tax involved exceeds P1,000,000 b. Where the settlement offered is less than the prescribed minimum rates. (Sec. 204, NIRC) c. When the CIR is not authorized to compromise

Note: The minimum compromise rate may be less than the prescribed rates, as the case may be, provided it is approved by the Evaluation Board.





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What are the limitations on the power to compromise a tax liability? 1. Minimum compromise rate:

a. In case of financial incapacity, 10% of basic assessed tax b. In other cases, 40% of basic assessed tax

2. Subject to approval of Evaluation Board: a. When basic tax involved exceeds P1,000,000 b. Where the settlement offered is less than the prescribed minimum rates. (Sec. 204, NIRC) c. When the CIR is not authorized to compromise

Note: The minimum compromise rate may be less than the prescribed rates, as the case may be, provided it is approved by the Evaluation Board.





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What is meant by abatement of tax liability?It is the cancellation of a tax liability.

Differentiate compromise from abatement.Compromise involves a reduction of the taxpayer’s liability, while abatement means that the entire tax liability of the taxpayer is cancelled.

When is the CIR authorized to abate or cancel a tax liability? 1. The tax or any portion thereof appears

to be unjustly or excessively assessed; or 2. The administration and collection costs

involved do not justify the collection of the amount due. (Sec. 204[B], NIRC)





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What are the instances when the tax liabilities, penalties and/or interest imposed on the taxpayer may be abated on the ground that the imposition thereof is unjust or excessive? When: 1.The filing of the return/payment is made at the Wrong

venue. 2.The taxpayer fails to file the return and pay the tax on

time due to: a. Substantial losses from prolonged labor dispute; b. Force majeure; c. Legitimate business reverses. Note: The abatement shall only cover the surcharge and the compromise penalty and not the interest imposed under Sec. 249, NIRC (also applicable in number 5) 3. There is Late payment of the tax under meritorious circumstances (i.e. Failure to beat bank cut-off time, surcharge erroneously imposed.)

4. The assessment is brought about or resulted from taxpayer’s non-compliance with the law due to a difficult Interpretation of said law.

5. The taxpayer fails to file the return and pay the correct tax on time due to Circumstances beyond his control.

6. The taxpayer’s mistake in payment of his tax is due to Erroneous written official advice of a revenue officer (Sec. 2, RR 13- 2001)

7. Other similar or analogous cases.





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What are the instances when the tax liabilities, penalties and/or interest imposed on the taxpayer may be abated on the ground that tax administration and collection costs are more than the amount sought to be collected?

1. Abatement of penalties on assessment confirmed by the lower court but Appealed by the taxpayer to a higher court.

2. Abatement of penalties on Withholding tax assessment under meritorious circumstances.

3. Abatement of penalties on assessment reduced after Reinvestigation but taxpayer is still contesting reduced assessment.

4. Abatement of penalties on Delayed installment payment under meritorious circumstances.

5. Such Other circumstances which the CIR may deem analogous to the enumeration above (Sec. 3, RR 13-2001)





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What is meant by tax lien? It is a legal claim or charge on property, personal or real, established by law as a sort of security for the payment of tax obligations.





Is tax itself a lien?Tax is not a lien even upon the property against which it is assessed, unless expressly made so by statute.

What is the nature of tax lien?It is enforced as payment of tax, interest, penalties, costs upon the entire property and rights to property of the taxpayer. However, to be valid against any mortgagee, purchaser or judgment creditor, notice of such lien has to be filed by CIR with the Registry of Deeds. (Sec. 219, NIRC)

Note: A valid assessment is required to be issued before a tax lien shall be annotated at the proper registry of property

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When is tax lien applied?1. With respect to personal property – Tax lien

attaches when the taxpayer neglects or refuses to pay tax after demand and not from the time the warrant is served (Sec. 219, NIRC)

2. With respect to real property – from time of registration with the register of deeds.





What happens to the residue?It is returned to the owner.

When is the tax lien extinguished? 1. By payment or remission of the tax 2. By prescription of the right of government to

assess or collect 3. By failure to file notice of such tax lien in the

office of Register of Deeds4. By destruction of property subject to tax lien 5. By replacing it with a bond Note: A buyer in an

execution sale acquires only the rights of the judgment creditor.

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WHAT ARE THE REMEDIES OF THE GOVERNMENT? Distinguish lien from distraint.





Lien Distraint

Directed against what?

The property subject to the tax

Need not to be directed against the property subject to

tax.

To whom directed?

The property itself regardless of the present owner of

the property

The property should be presently owned

by the taxpayer

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Define forfeiture.It is the divestiture of property without compensation, in consequence of a default or offense.





Sec. 224, NIRCThe forfeiture of chattels and removable fixtures of any sort shall be enforced by the seizure and sale, or destruction, of the specific forfeited property. The forfeiture of real property shall be enforced by a judgment of condemnation and sale in legal action or proceeding, civil or criminal, as the case may require.

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What is the effect of forfeiture? Forfeiture transfers the title to the specific thing from the owner to the government. Also there would no longer be any further levy for such would be for the total satisfaction of the tax due. (Sec 215, NIRC)





Can there be further distraint?The remedy of distraint and levy may be repeated if necessary until the full amount of the tax delinquency due including all expenses is collected from the taxpayer. (Sec. 217, NIRC) Otherwise, a clever taxpayer who is able to conceal most of the valuable part of his property would escape payment of his tax liability by sacrificing an insignificant portion of his holdings.

Note: Further distraint and levy does not apply when the real property was forfeited to the government for it is in satisfaction of the claim in question. (Sec 215, NIRC)

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What are the rules governing forfeiture?

1. If there is no bidder in the public sale or if the amount of the highest bid is insufficient to pay the taxes, penalties and costs, the real property shall be forfeited to the government.

2. The Register of Deeds shall transfer the title of forfeited property to the Government without necessity of a court order.

3. Within 1 year from the date of sale, the property may be redeemed by the delinquent taxpayer or any one for him, upon payment of taxes, penalties and interest thereon and cost of sale; if not redeemed within said period, the forfeiture shall become absolute. (Sec. 215, NIRC)





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What is the nature of civil penalties?They are in addition to the tax to be paid.





What is a surcharge or surtax? It is a civil penalty imposed by law as an addition to the main tax required to be paid. It is a civil administrative sanction provided as a safeguard for the protection of the State revenue and to reimburse the government for the expenses of investigation and the loss resulting from the taxpayer’s fraud. A surcharge added to the main tax is subject to interest.

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What are the corresponding rates of surcharges?1.Twenty-five percent (25%) of the amount due,

in the following cases: a. Failure to File any return and pay the tax due thereon as required under the provisions of the NIRC or rules and regulations on the date prescribed ;b. Failure to pay the deficiency tax within the Time prescribed for its payment in the notice of assessment ;c. Unless otherwise authorized by the CIR, filing a return with an internal revenue officer Other than those with whom the return is required to be filed ;d. Failure to Pay the full or part of the amount of tax shown on any return required to be filed under the provisions of the NIRC or rules and regulations, or the full amount of tax due for which no return is required to be filed, on or before the date prescribed for its payment (Sec 248 [A], NIRC)

2. The penalty shall be fifty percent (50%) of the tax or of the deficiency tax, in the following cases: a. Willful neglect to file the return within the period prescribed; or b. False or fraudulent return is willfully made (Sec. 248 [B], NIRC)

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When is a return deemed false or fraudulent?A prima facie evidence of false or fraudulent return arises when there is: under-over

1. A substantial under declaration of taxable sales, receipts or income; or

2. A substantial overstatement of deductions (Sec. 248, NIRC)When is there a substantial underdeclaration of taxable sales, receipts or income?When there is failure to report sales, receipts or income in an amount exceeding 30% of that declared per return.When is there a substantial overstatement of deductions? There is a substantial overstatement of deductions where a claim of deduction exceeds 30% of actual deductions.

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Are there interests to be paid in addition to the tax?Yes, there shall be assessed and collected on any unpaid amount of tax, interest at the rate of 20% per annum, or such higher rate as may be prescribed by rules and regulations, from the date prescribed for payment until the amount is fully paid. (Sec. 249, NIRC)

What is Deficiency Interest?Any deficiency in the tax due, as the term is defined in the NIRC, shall be subject to the interest prescribed in subsec. A hereof, which interest shall be assessed and collected from the date prescribed for payment until the amount is fully paid (Sec. 249, NIRC)

What is Delinquency Interest?In case of failure to pay: 1.The amount of the tax due on any return required to be filed;

or 2.The amount of the tax due for which no return is required; or 3.A deficiency tax, or any surcharge or interest thereon on the

due date appearing in the notice and demand of the CIR.

There shall be assessed and collected on the unpaid amount, interest at the rate prescribed in subsec. A hereof until the amount is fully paid, which interest shall form part of the tax. (Sec. 249, NIRC)

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Interest on extended payment 20% per annum on the tax or deficiency tax or any part thereof unpaid from the date of notice and demand until it is paid if any person required to pay the tax is: (a)Qualified and elects to pay the tax on

installment but fails to pay the tax or any installment or any part of such amount or installment or before the date prescribed for its payment; or

(b)Where the Commissioner has authorized an extension of time within which to pay a tax or a deficiency tax or any part thereof [249(D), NIRC]

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Interest on extended payment 20% per annum on the tax or deficiency tax or any part thereof unpaid from the date of notice and demand until it is paid if any person required to pay the tax is: (a)Qualified and elects to pay the tax on

installment but fails to pay the tax or any installment or any part of such amount or installment or before the date prescribed for its payment; or

(b)Where the Commissioner has authorized an extension of time within which to pay a tax or a deficiency tax or any part thereof [249(D), NIRC]

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THE STATUTE OF LIMITATIONS

Fraud is a question of fact that cannot be presumed but must be sufficiently established . Mere understatement of the income in itself does not constitute fraud. It must be proven as a fact that there was intentional and substantial understatement of tax liability.

Fraud was likewise found to exist in a case where there was substantial and intentional overstatement of deductions or exemptions, like the presence of fictitious expenses which were claimed by the taxpayer as deductions from gross income.

What is prescriptive period of the criminal liability of one committing violations of the Code?

All violations of any provision of this Code shall prescribe in five years.

The prescriptive period shall commence from the day of commission of violations, or if not known at that time, from its discovery.


What constitutes Fraud?

What is the prima facie evidence of a False or Fraudulent Return?

A substantial underdeclaration of taxable sales, receipts, or income, or a substantial overstatement of deductions, as determined by the CIR pursuant to the rules and regulations promulgated by the Secretary of Finance, shall constitute prima facie evidence of a false or fraudulent return.

1. Underdeclaration of sales, receipts or income exceeding 30% of that declared per return

2. Overstatement of deductions by 30% of actual deductions.

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THE STATUTE OF LIMITATIONS

Yes. If the CIR and the taxpayer have agreed in writing to its assessment after such time, the tax may be assessed within the period agreed upon. This agreed period may be extended by subsequent written agreement made before the expiration of the period previously agreed upon (Sec. 222 [b]).

The waiver however must be executed within the three-year period prescribed under Section 203, otherwise said waiver shall be ineffectual.


Can the prescriptive periods be suspended?

What are other instances where the prescriptive period is suspended?

1. When the CIR is prohibited from making the assessment or beginning distraint or levy or a proceeding in court and for sisty days thereafter, such as when their is a pending petition for review in the CTA from the decision on the protested assessment, the filing of such petition interrupts the running of the prescriptive period for collection (Republic vs. Ker & Co, 25 SCRA 208)

2. When taxpayer requests for a reinvestigation which is granted by the CIR (CIR v. Suyoc Consolidate Mining, 104 Phil 819)

3. When the taxpayer cannot be located in the address given by him in the return

4. When the warrant of distraint and levy is duly served and no property could be located

5. When the taxpayer is out of the Philippines.

Documents

Tax Remedies