Monday, 2 April 2018

Petition for Certiorari RR 8-2018 and RR 11-2018


Emelino T Maestro
Unit 419 Corporate 101 Mother Ignacia Quezon City
TIN 129 596 230

Legal Petition Notice
For the Urgent Attention and Action of the BIR Chief, Chairperson of the Ways and Means Committee of the House of Representatives, Chairperson of the Ways and Means Committed of the Senate, DOF Chief, Ombudsman and His Excellency, President Rodrigo R Duterte

Greetings.

Me and my group really support the policy direction of our present government. The choice of the present BIR Chief by our President is fantastic. I believe that he is an HONEST, GOD-FEARING AND LAW-ABIDING INDIVIDUAL. 

The recent passing of TRAIN creates rights that are worthy of pursuance and obligations that are worthy of extinguishment not only by those who are in-charge to implement it but most importantly, by those who are being directly affected by the TRAIN. I understand that the intention of the laws passed by our Congress and approved by the President should be interpreted and implemented according to the legal doctrine that the rights and justice must always prevail. For this purpose, acts that are executed against the laws’ mandatory provision ares deemed void from the beginning.

Believe me. I recognised the power of the BIR Chief to interpret the provisions of the approved TRAIN but that power should not go beyond what it provides. The safety net from exercising the so-called grave misconduct, abuse of authority, usurpation of authority and gross incompetence in interpreting the provisions of TRAIN is clearly and completely stated in Sections 244 and 245, National Internal Revenue Code (NIRC) which the present BIR Chief is not capable of doing so.

According thereto, the BIR Chief should issue the following BIR issuance in order that his interpretation of the provisions of TRAIN may be considered valid and enforceable (a) Revenue Regulations, (b) Revenue Memorandum Order, (c) Revenue Memorandum Circular, etc. Nothing in the TRAIN or previous provisions of the NIRC and its implementing rules and regulations justify the use of TAX ADVISORY. Thus, I believe that any TAX ADVISORY is irregular and illegal for it did not pass through the due process required by the 1987 Administrative Code, New Civil Code and the Tax Code.

Annex A is a TAX ADVISORY stating that self-employed and professionals such as CPAs, doctors and architects should file their BIR Form No. 1701 on or before April 15 every year. I find this so intriguing and questionable. According to the provision of the TRAIN that amended Section 74(B), NIRC, me, the self employed and other professionals shall file their BIR Form No. 1701, for the taxable year 2017 and succeeding years, on or before MAY 15. To understand my position, the provisions of RA 8424 and RA 10963 is presented in a matrix hereunder;





Section
RA 8424
RA 10963
74(B) 
(B) Return and Payment of Estimated Income Tax by Individuals. - The amount of estimated income as defined in Subsection (C) with respect to which a declaration is required under Subsection (A) shall be paid in four (4) installments. The first installment shall be paid at the time of the declaration and the second and third shall be paid on August 15 and November 15 of the current year, respectively. The fourth installment shall be paid on or before April 15 of the following calendar year when the final adjusted income tax return is due to be filed.
(B) Return and Payment of Estimated Income Tax by Individuals. – The amount of estimated income as defined in Subsection (C) with respect to which a declaration is required under Subsection (A) shall be paid in four (4) installments. The first installment shall be paid at the time of declaration and the second and third shall be paid on August 15 and November 15 of the current year, respectively. The fourth installment shall be paid on or before May 15  of the following calendar year when the final adjusted income tax return is due to be filed.

I understand that our Congress knew from the beginning that the BIR Form No. 1701, prior to the approval of TRAIN, is to be filed on or before April 15. Thus, by changing it from April 15 to May 15 has some reasonable implications such as the separation of filing and payment of income taxes by individuals engaged in business and practice of profession and non-individuals engaged in trade and business, de-clogging of BIR websites and computer systems, unloading some workloads from the shoulders of some revenue officers, long-line and long hours of filing and payment of annual income tax returns, etc.

Some is arguing that the due date shown in Section 51(C), NIRC should prevail over Section 74(B), NIRC, as amended by TRAIN. I believe that in general, the Repealing Clause of RA 10963 will settle the issue and had already repealed the provisions of old and previous laws that contradicted its provisions.  I also believe that the provisions of the Repealing Clause of RA 8424 is also applicable on this issue as it stated that all laws that contradicted the present laws are expressly and implicitly considered repealed or amended.

But, for a while, let us consider that Section 51(C), RA 8424 is not yet repealed or immobilised by Section 74(B), RA 10963. It may be agreed upon that their provisions cannot and may not be reconciled at all. Once should prevail over the other. The interpretation of the BIR Chief that Section 51(C), RA 8424 should prevail over Section 74(B), RA 10963 is contrary to law and the legal system of the Republic of the Philippines. Firstly, RA 8424 is older than RA 10963. Meaning, the laws are repealed by subsequent one. Importantly and considering the numerous Supreme Court’ decisions, this should be applied ‘BUT IF THERE IS A CONFLICT BETWEEN TWO STATUTES RELATING TO THE SAME SUBJECT WHICH CANNOT BE RECONCILED BY ANY FAIR AND REASONABLE METHOD OF CONSTRUCTION, THE LAST POINT OF TIME WILL CONTROL; AND IF THERE IS A SIMILAR CONFLICT BETWEEN TWO CLASSES OR SECTIONS OF THE SAME STATUTE, EFFECT MUST BE GIVEN TO THE LAST IN ORDER, OVERRIDING THE EARLIER.’

I am appealing to the BIR Chief that he immediately retracts or recalls his Tax Advisory for the BIR Form No. 1701 requiring me to file and pay my annual tax due for the taxable year 2017 and succeeding years on or before April 15 and apply RA 10963.


I cannot subscribe to the TAX ADVISORY marked as Annex B hereof which requires me and taxpayers similarly situated to file and pay our withholding tax on compensation, expanded withholding tax and final withholding tax on a monthly basis using BIR Form No. 0605. Again, the use and dissemination of TAX ADVISORY is contrary to RA 10963 which requires the BIR Chief and DOF Chief to issue the required implementing rules and regulations on or before January 31, 2018. Their due date to do so had already lapsed. This TAX ADVISORY is contrary law, public order and public policy. To understand my position, I, again, presented the old law and the new law;

Section
RA 8424
RA 10963
58(A)
The return for final withholding tax shall be filed and the payment made within twenty-five (25) days from the close of each calendar quarter, while the return for creditable withholding taxes shall be filed and the payment made not later than the last day of the month following the close of the quarter during which withholding was made: Provided, That the Commissioner, with the approval of the Secretary of Finance, may require these withholding agents to pay or deposit the taxes deducted or withheld at more frequent intervals when necessary to protect the interest of the government.
The return for final and creditable withholding taxes shall be filed and the payment made not later than the last day of the month following the close of the quarter during which withholding was made.

Our Congress and the President is totally aware that the provision of RA 8424 ‘Provided, That the Commissioner, with the approval of the Secretary of Finance, may require these withholding agents to pay or deposit the taxes deducted or withheld at more frequent intervals when necessary to protect the interest of the government.’ do exist but they knowingly remove such provision. Thus, it can no longer be revived by way of an administrative act or through a TAX ADVISORY.

I am appealing to the BIR Chief that he immediately retracts or recalls his Tax Advisory for the filing and payment of monthly withholding taxes (compensation, expanded and final)  through the use of BIR Form No. 0605 because it is contrary to RA 10963. 

I also request the Office of the President, Office of the Ombudsman, DOF Chief, Chairperson of the Ways and Means of the Senate and House of Representatives to help and assist me by way of protecting my rights and privileges to file and pay my BIR Form No. 1701 on or before May 15 and withholding tax on compensation, expanded and final on or before the last day of the month after the close of the calendar quarter. If it is possible and appropriate, a preliminary investigation leading to immediate resolution of these issues shall be conducted and concluded.

Thanks a lot for following the provisions of RA 9485 and sending your replies on time.



Emelino T Maestro
TIN 129 596 230
Mobile 0922 801 0922
02-4259225