Wednesday, 30 May 2018

Emelino T Maestro versus BIR Tax Evasion, Dismissed by CTA (Court of Tax Appeals) on May 24, 2018

                                   Republic of the Philippines
                                    COURT OF TAX APPEALS
                                          Quezon City

                                        SECOND DIVISION

PEOPLE OF THE PHILIPPINES,                            CTA Crim. Case Nos. 0-661
                Plaintiff,
                                                      Members:
                                                      CASTANEDA, JR., Chairperson,
                -versus-                              CASANOVA, and
                                                      MANAHAN,].].

                                                      Promulgated:
EMELINO T. MAESTRO,                                        MAY 2 4 Z018        /
                Accused.                                                    ~

)(-   -   --- - - - - ---- - - -   - - --   ---- - -- --- --- - - -- -   r/ - ~:~- ;-~-
                                                                          -- -- --  -- -
                                                                                      - --   -)(



                                             RESOLUTION


       For resolution of this Court is accused's Motion to Quash 1 filed
on March 23, 2018, sans plaintiff's Comment as per Records Verification
dated April 24, 2018.


         Citing the cases of Francisco S. Tatad vs. The Sandiganbayan, et.
a/.,2 and Casiano A. Angchangco, jr. vs. The Honorable Ombudsman, et. a/., 3
accused moves to quash the Information 4 filed against him on February
5, 2018, due to alleged inordinate delay of more than si)( (6) years from
the filing of the initial complaint until the filing of the Information
before the Court of Ta)( Appeals (CTA). Accordingly, he suffered
prejudice and his reputation as professional Certified Public Accountant
and public speaker, in relation to his crusade and advocacy for ta)(
accounting, was besmirched.


        To prove the same, accused narrates that the Bureau of Internal
Revenue (BIR), through Chief Revenue Officer Neil U. Cordero and
Revenue Officer Eulema DV Demadura, filed a Joint Complaint Affidavit
before the Department of Justice (DOJ) Ta)( Force of BIRon October 13,
2011; that accused filed his Counter Affidavit on February 3, 2012; that

1
  Docket (Vol. II), pp. 598-602.
2
  G.R. No. 72335 -39, March 21, 1988.
3
  G.R. No. 122728, February 13, 1997.
4
  Docket (Vol. 1), pp. 6-7.
RESOLUTION
CTA Criminal Case No. 0-661
Page 2 of 8



the aforesaid complainants filed their Joint Reply-Affidavit on February
3, 2012; that accused filed a Motion for Speedy Resolution on February
20, 2013; that DOJ issued a Resolution dated July 24, 2017 on August 4,
2017, finding probable cause against him; that after more than 6 years
from the filing of the initiatory complaint, the DOJ filed an Information
dated July 24, 2017 before the CTA on February 5, 2018.

            We find the Motion meritorious.

       Section 16, Article 3 of the 1987 Constitution explicitly provides
 that "(a)ll persons shall have a right to a speedy disposition of their
 cases before all judicial, quasi-judicial or administrative bodies." In this
 accord, any party to a case may demand expeditious action from all
 officials who are tasked with the administration of justice.

      The need for a speedy disposition of cases is more pronounced in
 criminal cases since what is at stake is the honor, reputation and life of
 the accused. Thus, in determining whether the accused has been denied
 of his/her right to a speedy disposition of his/her case, the following
 factors may be considered and balanced: (1) the length of delay; (2) the
 reasons for the delay; (3) the assertion or failure to assert such right by
 the accused; and (4) the prejudice caused by the delay. 5

          Below is the summary of the proceedings conducted and
     pleadings filed based on the records attached to the Information and
     the subject Motion:

April14, 2008                 Accused filed his Annual Income Tax Return for
                              2007 with no entries thereon other than the
                              notation "THIS IS A TENTATIVE RETURN FINAL &
                              ADJUSTED RETURN INCLUDING TAX BASED
                              FINANCIAL STATEMENTS SHALL BE FILED AS
                              SOON AS THEY BECAME AVAILABLE"6.

 July 29, 2010                A Letter of Authority (LOA) No. 2009 00044654
                              dated July 15, 2010 was issued authorizing
                              Revenue Officers (RO) F. Madrid, S. Bahia, R.
                              Yanguas and A. Alaan to examine accused's records
                              from taxable years 2007 to 2009.7


 5
   Francisco Dela Pefia, et al., vs. The Sandiganbayan, Fourth Division, the Special Prosecutor and
 Commission on Audit, Region XI, G.R. No. 144542, June 29, 2001.
 6
   Par. 6, Joint Complaint-Affidavit, Docket (Vol. 1), p. 80 and pp. 84-86.
 7
   Ibid., p. 439.
RESOLUTION
CTA Criminal Case No. 0-661
Page 3 of8



September 14,    LOA No. 032-2010-00000292              was issued
2010             authorizing (RO) Flaviano Madrid, Socrates Bahia,
                 Renato Yanguas, Aldwin Alaan and GS- Charlito
                 Samson to examine accused's records from January
                 1, 2007 to December 31, 2009 (replacing LOA dated
                 July 16, 2010.8
August 16, 2011  A Memorandum was issued by Regional Director
                 Alfredo V. Misajon to Mr. Neil U. Cordero, OIC-Chief,
                 Special Investigation Division, to ascertain if there
                 is a factual and legal basis to warrant the inclusion
                 of the accused's case to the RATE Program. 9
August 17,2011 OIC Chief Cordero instructed Revenue Officer E.
                 Demadura and Group Supervisor J. Tabora to verify
                 and make a report on the accused's tax case. 1o
October 13, 2011 Commissioner of Internal Revenue Kim S. Jacinto-
                 Henares referred to Secretary of Justice Leila De
                 Lima the Joint Complaint Affidavit of Chief Revenue
                 Officer Cordero and Revenue officer Demadura for
                 preliminary investigation and filing of Information
                 a_gainst the accused.11
October 28, 2011 Accused requested the BIR, among others, to
                 provide him with photocopies of his 2007, 2008,
                 2008, 2009 tax docket.12
November 14,     Accused requested the BIR, among others, to
2011             provide him with photocopies of his 2007, 2008,
                 2008, 2009 tax docket. 13
November 14,     Accused filed a letter to the Office of Ombudsman
2011              invokingthe writ of amparo or habeas data. 14
November 16,      OIC Regional Director Simplicio A. Madulara sent a
2011              letter to the accused, in reference to the accused's
                  letter dated October 28, 2011 and November 14,
                  2011, informing the latter that there is a pending
                  case against him at DOJ. 15
November 22,      Prosecutor Attorney Monica T. Liwag issued a
2011              subpoena requiring the accused to appear on
                  December 1, 2011 for the preliminary investigation
                  of his case.16
November 28,     Accused filed before the DOJ a Motion to Suspend
8
   Jd., p. 454.
9
   Jd., p. 93.
 10
    ld., p. 94.
 11
    ld., pp. 77-83.
 12
      As per November 16, 2011 Letter of OIC Regional Director Simplicio A. Madulara to the accused, Jd., p.
46.
 13
      As per November 16, 2011 Letter of OIC Regional Director Simplicio A. Madulara to the accused, Id., p.
46.
 14
      ld., pp. 56-67.
 15
      ld., p. 46.
 16
      ld., p. 55.
RESOLUTION
CTA Criminal case No. 0-661
Page 4 of8



2011             the Preliminary Investigation and Subpoena the
                 Official Documents from the BIR officials. He also
                 prayed that the hearing on December 1, 2011 be
                 reset to December 16, 2011.1 7
December 1,      A Hearing was held but the accused was not
2011             present. Thus, the hearing was reset on December
                 15, 2011.
December 2,      Prosecutor Attorney Liwanag issued a subpoena
2011             directing the accused to appear on December 15,
                 2011 for the preliminary investigation of his case.
December 15,     A Hearing was held wherein accused submitted a
2011             Motion to Produce All Material Evidences and
                 agreed to submit his Counter Affidavit on January
                 12, 2012.18
December 24,     Accused requested for a copy of the 2007 Report
2011             Investigation.19
December 29,     Accused claimed that he received a letter from the
2011             BIR denying him to have a copy of the 2007 Report
                 Investigation. 2o
January 2, 2012  Accused filed an Urgent Motion praying that he be
                 provided with a copy of the Report Investigation
                 for taxable·year 2007.21
January 4, 2012  The DOJ issued a Resolution denying accused's
                  request to be furnished with a copy of the
                  requested document and directed accused to file
                  his Counter-Affidavit.22
January 25, 2012 A Subpoena was issued by Prosecutor Atty. Liwag
                  requiring the accused to attend the hearing on
                  February 3, 2012.23
February 3, 2012     • A hearing was held before the DOJ2 4
                     • Accused filed his Counter Affidavit25
                     • Date of Joint Reply Affidavit of Neil u.
                        Cordero and Eulema DV Demadura 26
February 15,      Accused filed a Motion for Reinvestigation and Re-
2012              assignment Reiteration and for other Purposes
                  requesting that a new prosecutor attorney shall
                  handle his case.27

 17
    ld., pp. 52-54.
 18
    ld., p. 43.
 19
    As per Letter dated December 27, 2011, ld., p. 498.
 20
    ld., p. 39; Par. 9, as per Accused's Urgent Motion filed on January 2, 2012, ld., p. 37.
 21
    ld., pp. 37-38; As per DOJ Resolution dated January 4, 2012, ld., pp. 35-36.
 22
    ld., pp. 35-36.
 23
    Ibid., p. 27.
 24
    ld., p. 24.
 25
    Par. 2, Motion to Quash, Docket (Vol. II), p. 598.
 26
    Docket (Vol. 1)., pp. 395-400.
 27
    Ibid., pp. 122; ld., pp. 126-160.
RESOLUTION
CTA Criminal Case No.   0-661
Page 5 of8



February 20,     Accused filed a Motion for Speedy Resolution dated
2013             February 17, 2013 with the DOJ. 28
April 8, 2013    Accused filed a Motion for Reinvestigation and Re·
                 Assignment (Amended April 8, 2013) with the DOJ,
                 praying that a new Prosecutor Attorney shall
                 conduct     and     conclude        the preliminary
                 investigation. 29
October 10, 2013 Department Order No. 774 was issued
                 reconstituting the task Force of BIR. Thus, the
                 instant case was transferred from Prosecution
                 Attorney Liwag to Assistant State Prosecutor Mark
                 Roland S. Estepa.3o
August 4, 2017   Assistant State Prosecutor Mark Roland S. Estepa
                 issued a Resolution dated July 24, 2017 finding
                 probable cause against the accused.3 1
February 5, 2018 The criminal case against the accused was filed
                 before the Court of Tax A___QQeals.32

Length of Delay

       It is clear from the foregoing that more than five (5) years had
lapsed from the time the Joint Complaint Affidavit of Chief Revenue
Officer Cordero and Revenue Officer Demadura was referred by
Commissioner Henares to DOJ on October 13, 2011, before the latter
found probable cause against the accused on July 24, 2017. To our mind,
such delay amounts to a violation of the accused's constitutional right to
a speedy disposition of his case following the ruling in Luz S. Almeda vs.
Office of the Ombudman (Mindanao) and the People of the Philippines33,
to wit:

               "In Coscolluela34, the fact that it took the Ombudsman
         eight years to resolve a case under preliminary investigation
         was considered violative of the right to speedy disposition of
         cases. In Cervantes3s, it took the OSP six years from the filing
         of the initiatory complaint before deciding to file an
         information; this was struck down as well. In Tatad v.
         Sandiganbayan36, a three-year delay in the termination of the
         preliminary investigation by the Tanodbayan was
28
   Par. 3, Motion to Quash, Docket (Vol. II), p. 598; Annex D.
 29
   Docket (Vol. 1)., pp. 95-121.
30
   As per DOJ Resolution dated July 24, 2017, Ibid, pp. 8-9.
31
   ld., pp. 8-21.
32
   1d., p. 6.
33
   G.R. No. 204267, July 25, 2016.
34
   Coscolluela v. Sandiganbayan, 714 Phil. 55, 61 (2013).
35
   Cervantes v. Sandiganbayan, 366 Phil. 602, 609 (1999).
36
   242 Phil. 563 (1988).
RESOLUTION
CTA Criminal Case No. 0-661
Page 6 of8



          considered violative of the right. In Lopez, Jr. v. Office of the
          Ombudsman3 7 , the preliminary investigation was resolved
          close to four years from the time all the counter- and reply-
          affidavits were submitted to the Ombudsman, and this was
          similarly struck down. In People v. Sandiganbayan38, the
          fact-finding investigation and preliminary investigation by
          the Ombudsman lasted nearly five years and five months,
          which the Court considered an inordinate delay. The same is
          true in Angchangco, Jr.39 and Roque v. Office of the
          Ombudsman 40 , where the delay involved a period of six
          years, more or less. In Licaros 41 , the failure of the
          Sandiganbayan to decide the case even after the lapse of
          more than 10 years after it was submitted for decision was
          declared to involve 'more than just a mere procrastination in
          the proceedings'."

Reason for the Delay

      In the DOJ Resolution dated July 24, 2017, Assistant State
Prosecutor Mark Roland S. Estepa points out that the instant case was
previously assigned to Prosecution Attorney Monica T. Liwag. However,
due to the issuance of Department Order No. 774 dated October 10,
2013, which reconstituted the Task Force of BIR, the subject case was
re-assigned to him.

             Now, even if We start counting from October 10, 2013, the date of
the issuance of the aforesaid Department Order, the fact still remains
that it still took Assistant Prosecutor Estapa more than three (3) years
to resolve the preliminary investigation proceedings against the accused
on August 4, 2017, and six (6) months to actually file the Information
before the CTA on February 5, 2018, without any explanation
whatsoever. Thus, We find the delay in the termination of preliminary
investigation brought about by the issuance of the said Department
Order unjustified.




 37
      417 Phil. 39 (2001).
 38
      People v. Sandiganbayan, 723 Phil. 444, 489 (2013).
 39
      Angchangco, Jr. v. Hon. Ombudsman, 335 Phil. 766, 770 (1997).
 40
      366 Phil. 568 (1999).
 41
      Licaros v. Sandiganbayan, 421 Phil. 1075, 1092 (2001).
RESOLUTION
CTA Criminal Case No. 0-661
Page 7 ofB



Assertion of the Right to Speedy Disposition of the Case

      Records show that accused wasted no time to assert his right to
have the case against him be resolved as shown in his Motion for Speedy
Resolution filed before the DOJ on February 20, 2013. 42

Accused was Prejudiced by the Delay

      The protracted conduct of the investigation as well as the delay in
the issuance of finding probable cause certainly caused distress, anxiety
and embarrassment on the part of the accused considering his
reputation as professional Certified Public Accountant. This is in accord
with the ruling of the Supreme Court in the case of Rafael L. Coscol/uela
vs. Sandiganbayan (First Division and People of the Philippines and
Edwin N. Nacionales, eta/., vs. Sandiganbayan (First Division), et a/. 43, viz:

             "Lest it be misunderstood, the right to speedy disposition
        of cases is not merely hinged towards the objective of spurring
        dispatch in the administration of justice but also to prevent the
        oppression of the citizen by holding a criminal prosecution
        suspended over him for an indefinite time. Akin to the right to
        speedy trial, its 'salutary objective' is to assure that an innocent
        person may be free from the anxiety and expense of litigation
        or, if otherwise, of having his guilt determined within the
        shortest possible time compatible with the presentation and
        consideration of whatsoever legitimate defense he may
        interpose. This looming unrest as well as the tactical
        disadvantages carried by the passage of time should be
        weighed against the State and in favor of the individual. x x x"

      In view of the violation of accused's right to speedy disposition of
his case as herein discussed, the Court has no recourse but to dismiss
the instant case.

      WHEREFORE, premises considered, accused's Motion to Quash is
 hereby GRANTED. Accordingly, CTA Crim. Case No. 0-661 is hereby
 DISMISSED.




 42
      Par. 3, Motion to Quash, Docket {Vol. II), p. 598; Annex D.
 43
      G.R. No. 191411, July 15, 2013.
RESOLUTION
CTA Criminal Case No. 0-661
Page 8 of8



         SO ORDERED.


                                    a-~~,J;­
                              JUANrro C. CASTANEDA, JR.
                                  Associate Justice


                                              ?~'7~~
CAESAR A. CASANOVA                           CATHERINE T. MANAHAN



  Associate Justice                             Associate Justice








  • 61
    SHARES
  •  
  •  
  •  
  •  

BIR now going after accountants


By:  - Reporter / @MRamosINQ
 / 02:47 PM October 13, 2011
After filing tax cases against doctors and lawyers, the Bureau of Internal Revenue (BIR) has now trained its sights on accountants.
Emelino Maestro, a certified public accountant, was charged by the BIR on Thursday with tax evasion for  alleged failure to  pay close to P7 million in income and value-added taxes four years ago.
The BIR filed the case at the Department of Justice, which will determine if there is enough evidence to prosecute the matter in court. It has previously filed tax lawsuits against lawyers and doctors.
BIR Deputy Commissioner Estela Sales said the tax bureau would now be training its sights on accountants and other “tax practitioners” who had been remiss in paying correct taxes.
“This is a fair warning to all accountants. You should walk the talk and practice what you preach,” Sales said at a news briefing.
Sales said Maestro, owner of ETM Tax Agent Offices, was the first “tax practitioner” sued by the BIR for  direct violation of the National Internal Revenue Code of 1997.
“In the past, we only charged accountants for colluding with their clients. This is the first time that we filed a case against an accountant for willful attempt to evade or defeat tax,” Sales said.
Tentative ITR
As a “tax practitioner,” Maestro, of Sampaloc, Manila, has been conducting lectures and doing tax consultancy for taxpayers, including private companies, she said.
Sales said the bureau had already stripped the tax agent of his accreditation to represent taxpayers in the BIR. Tax investigators found that Maestro failed in his promise to amend his income tax return (ITR) for 2007, which he submitted on April 14, 2008, Sales said.
Instead of filing an ITR, she said Maestro submitted a “tentative” ITR, which did not contain his sources of income.
She said the document only contained the note: “This is a tentative return. Final and adjusted return including tax-based financial statements shall be filed as soon as they became available.”
Since then, Sales said Maestro had failed to provide the necessary documents and comply with the BIR rules.
Sales said Maestro owed the government P5.7 million in income tax and P1.61 million in value-added tax (VAT), including surcharges and interests.
“He willfully evaded the payment of the said deficiency taxes through the fraudulent scheme of filing a tentative annual income tax return… with no entries thereon,” Sales said.
She said the accountant’s failure to submit an ITR “resulted in the nondeclaration of revenues and thus, nonpayment of taxes.”
The BIR also added a rice trader to its growing list of alleged delinquent taxpayers.
It sued Gerardo Teves, proprietor of GT Trading, for supposedly failing  to pay over P136 million in income and value-added taxes in 2009.
Originally posted at 02:47 pm | Thursday, October 13, 2011

BIR files tax evasion raps vs rice importer, accountant

ABS-CBN News
Posted at Oct 13 2011 12:08 PM | Updated as of Oct 14 2011 02:08 AM
Share
MANILA, Philippines - The Bureau of Internal Revenue (BIR) has filed tax evasion cases against a rice importer and an accountant.
The BIR filed charges against Gerardo Teves of GT Trading's Rice Importation for failing to declare rice imports worth P310 million in 2009.
Teves' total tax deficiency amounted to over P135 million, the BIR said.
Also charged was certified public accountant and tax consultant Emelino Maestro who reportedly did not file his "final" income tax return in 2007.
Maestro owed the government nearly P7 million in income and value-added taxes.
So far, the BIR has filed 72 tax evasion cases under the Run After Tax Evaders program of Commissioner Kim Henares. 

BIR: Rice importer, accountant tax dodgers; Customs employee sued


   

Posted on October 14, 2011

A RICE importer and an accountant were the latest to be charged with tax evasion under the Run After Tax Evaders (RATE) program of the Bureau of Internal Revenue (BIR), even as a Customs employee has been sued in efforts to rid revenue-generating agencies of misfits.

Estela V. Sales, BIR deputy commissioner for legal and inspection, yesterday said in a briefing at the Department of Justice that Gerardo C. Teves, sole proprietor of GT Trading Rice Importation, was charged with failure to pay P129.95 million in income tax and P6.12 million in value-added tax (VAT) for rice imports and sales in 2009.
Investigation by the BIR on records of rice importations at the National Food Authority showed that Mr. Teves made several rice imports in 2009 totaling P98.99 million that were all undeclared.
He allegedly declared imports worth only P70,927.45 in the first quarter of 2009 and P25.14 million in the fourth quarter of the same year in his VAT returns, while he declared only P97,102.50 worth of imports in his income tax return (ITR).
“Per investigation, the amount of discrepancy in the purchases of Teves results to underdeclaration of sales,” Ms. Sales said, noting that the businessmen had underdeclared P310.26 million in purchases.
Meanwhile, Emelino T. Maestro, an accountant who advises taxpayers through his ETM Tax Agent Office, was charged with failure to pay income tax of P5.17 million and VAT of P1.61 million in 2007. Ms. Sales said he filed a temporary annual ITR for the year but failed to file his final ITR.
Despite his failure to file a final ITR, the BIR said Mr. Maestro filed quarterly VAT returns in 2007.
Ms. Sales said that during the year, Mr. Maestro earned as much as P7 million.
She said the two tax evasion cases filed with the Justice department were the 71st and 72nd under the RATE.
Messrs. Teves and Maestro could not be immediately reached for comment.
 -- Nathaniel R. Melican andDiane Claire J. Jiao