What is the penalty imposed when the offender is a minor under eighteen years?

  1. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period.

Thus, the imposable penalty on James Andrew, by reason of his minority, is one degree lower than the statutory penalty. The penalty for the special complex crime of kidnapping and serious illegal detention with homicide and rape, being death, one degree lower therefrom is reclusion perpetua.[5] On the other hand, the penalty for simple kidnapping and serious illegal detention is reclusion perpetua to death. One degree lower therefrom is reclusion temporal.[6] There being no aggravating and mitigating circumstance, the penalty to be imposed on James Andrew is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, he should be sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.[7]

Accordingly, in Criminal Case No. CBU-45303, the penalty of reclusion perpetua should be imposed upon James Andrew; while in Criminal Case No. CBU-45304, the imposable penalty upon him is twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.

WHEREFORE, the motion for reconsideration is hereby GRANTED. Our Decision dated February 3, 2004 is AFFIRMED with the MODIFICATION that in Criminal Case No. CBU-45303, James Andrew Uy is sentenced to suffer the penalty of reclusion perpetua; while in Criminal Case No. CBU-45304, the penalty of twelve (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as maximum.

SO ORDERED.

SOURCE: [ G.R. Nos. 138874-75, January 31, 2006 ]PEOPLE OF THE PHILIPPINES, APPELLEE, VS. FRANCISCO JUAN LARRAÑAGA ALIAS “PACO;” JOSMAN AZNAR; ROWEN ADLAWAN ALIAS “WESLEY;” ALBERT CAÑO ALIAS “ALLAN PAHAK;” ARIEL BALANSAG; DAVIDSON VALIENTE RUSIA ALIAS `TISOY TAGALOG;” JAMES ANTHONY UY ALIAS “WANGWANG;” AND JAMES ANDREW UY ALIAS “MM,” APPELLANTS. Tags: Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San

Whether the Ombudsman acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack of jurisdiction, in holding that the requirement of a resident project engineer is merely permissive

It is petitioner’s initial posture that the pre-qualification requirement of employing a qualified resident project engineer under P.D. No. 1594 is mandatory, not merely permissive as ruled by the respondent Ombudsman. To petitioner, the Ombudsman erroneously relied on Section 1B4-4C of the Implementing Rules and Regulations (IRR) of P.D. No. 1594 in dismissing its complaint. The provision reads:

The following papers shall, among others, comprise Pre-C. Each office/agency/corporation shall have the discretion to specify whether any of the documentation listed below shall form part of the Pre-C:

c) Actual employment or contract to employ duly qualified project manager and project engineer who have managed or supervised at least a project of similar nature as to type and costs. (Emphasis supplied)

In faulting the Ombudsman for ruling as merely permissive the resident-project-engineer requirement on the basis of the above-quoted provision of the IRR, petitioner points out that the provision thus relied upon by the Ombudsman had long been repealed by Section 1B4-5-C of the 1995 IRR of P.D. No. 1594, which recites:

  • The following papers shall, among others, comprise Pre-C:


c. List of key personnel employed or to be employed in the project with complete qualification and experience data sheet. (Emphasis supplied)

In stressing the mandatory, not merely permissive, nature of the resident-project-engineer requirement, petitioner made much of the word “shall” in the aforequoted provision and the fact that the phrase “shall have the discretion” found in the former Section 1B4-4C, supra, no longer appears in the repealing provision of Section 1B4-5-C.

Petitioner’s submission does not persuade.

There is nothing in Section 1B4-5-C that deprives the contracting agency concerned of its discretion to specify whether any of the documentation listed under the former rule (Section 1B4-4C) shall form part of the Pre-C. As it were, Section 1B4-5-C (the new provision) merely classifies the “list of key personnel employed or to be employed in the project with complete qualification and experience data sheet,” as among the papers to comprise the Pre-C. And even assuming that a project engineer is one of the key personnel in the construction project, Section 1B4-5-C itself allows the employment of key personnel even after the bidding. This is as should be as the provision adverted to speaks of “list of key personnel employed or to be employed” in the project. In short, both the former and new provisions of the IRR of P.D. No. 1594 do not indispensably require actual employment of a project engineer at the time of submission of the Pre-C. The old provision (Section 1B4-4C) spoke of “actual employment or contract to employ,” while the 1995 version (Section 1B4-5-C) uses the clause “list of key personnel employed or to be employed” in the project. Doubtless, both versions allow post bidding employment of a project engineer. We thus sustain as correct the ruling of the Ombudsman on the permissive nature of the pre-qualification requirement relative to the employment of a project engineer.

Petitioner insists, however, that the mandatory nature of the requirement of actual hiring of a project engineer at the time of pre-qualification is made clearer in Section 2 of P.D. No. 1594 which reads:

Section 2. Detailed Engineering. No bidding and/or award of contract for a construction project shall be made unless the detailed engineering investigations, surveys, and designs for the project have been sufficiently carried out in accordance with the standards and specifications to be established under the rules and regulations to be promulgated pursuant to Section 12 of this Decree so as to minimize quantity and cost overruns and underruns, change orders and extra work orders, and unless the detailed engineering documents have been approved by the Minister of Public Works, Transportation and Communications, the Minister of Public Highways, or the Minister of Energy, as the case may be.

Petitioner would interpret the provision as mandating the prospective contractor-bidder to conduct detailed engineering work on a project. Ergo, so petitioner concludes, the actual hiring of a resident project engineer at the time of bidding is mandatory, the engineer hired being tasked to handle the technical and engineering aspects of the construction.

Again, petitioner is wrong.

As may be noted, the above-quoted provision of Section 2 of P.D. No. 1594 requires that a detailed engineering be carried out before any bidding or contract award for a construction project. Obviously, this requirement is addressed to the agency concerned, not to a bidder. It is from this detailed engineering that the concerned agency can get an estimate of the project, which it will use as basis in the evaluation of the bids. A bidder has no participation in carrying out the detailed engineering of a project. This is clear from Title 1, paragraph 4(g) of the IRR of P.D. No. 1594, to wit:

g. Agency Estimate – The Agency Estimate of construction cost shall be prepared by official(s) duly designated by the Head of office/agency/corporation concerned or by his duly authorized representative. It shall be approved by the Head of the office/agency/corporation or his duly designated representative.

The approved agency estimate (AAE) shall be finalized on the day of the bidding after all bids have been received and shall be held confidential and signed, sealed and ready for presentation on the day of the opening of the bids/tenders. (Emphasis supplied)

Designating a bidder to carry out the detailed engineering of a project would doubtless be greatly prejudicial to other bidders. With this scenario, such a bidder will know in advance the agency estimate of the project and be able to offer the lowest bid.

In any event, assuming, in gratia argumenti, that the employment of a resident engineer is required to be stated in the submission of bidding documents, Muñoz Construction may be considered as having substantially complied with such requirement. Record shows that the firm submitted the name of the replacement of Armario after the latter severed ties with his employer. Besides, under the IRR of P.D. No. 1594, the government is given the discretion to waive minor deviations from the requirements. We quote the pertinent provisions of the IRR:

A bid which does not comply with the conditions or requirements of the bid documents shall be rejected by the PBAC (or the Bid and Award Committee as the case may be) giving the reason or reasons for its rejection. The government, however, in the evaluation of bids received, reserves the right to waive the consideration of minor deviations in the bids received which do not affect the substance and validity of the bids.


The government, however, reserves the right to reject any or all bids; to declare a failure of bidding if there is, among others, reason to suspect evident collusion among contractors resulting in no competition; to waive any required formality in the bids received; and to disregard any bid which is obviously unbalanced, (Emphasis supplied)

In the case at bench, the University’s PBAC found the perceived infraction ascribed to Muñoz Construction too minor to warrant rejection of its bid. The Court loathes to interfere with PBAC’s estimation on a matter within its competence, if not sound prerogative.

The discretion to accept or reject a bid and award contracts is vested in the government agencies entrusted with that function. The discretion given to authorities to accept or reject a bid is of such wide latitude that courts will not interfere, unless it is apparent that it is exercised arbitrarily, or, in the language of Bureau Veritas vs. Office of the President, used as a shield to a fraudulent award. The exercise of that discretion is a policy decision that necessitates prior inquiry, investigation, comparison, evaluation, and deliberation. This task can best be discharged by the concerned government agencies, not by the courts. The role of the courts is to ascertain whether a branch or instrumentality of the government has transgressed its constitutional boundaries. Courts will not interfere with executive or legislative discretion exercised within those boundaries. Otherwise, they stray into the realm of policy decision-making. 

Here, the PBAC contextually acted well within its bounds of discretion. Hence, no grave abuse of discretion may be imputed against respondent Ombudsman in dismissing petitioner’s complaint.

This brings us to the second issue herein raised. Petitioner contends that the Ombudsman had treated the preliminary investigation as a trial when his duty is limited to the determination of probable cause.

There is no dispute that the function of a preliminary investigation is to determine the existence of probable cause. It must be stressed, however, that as early as in the cases of U.S. v. Grant  and Haashim v. Boncan, the Court has ruled that the ultimate purpose of a preliminary investigation is “to secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect him from open and public accusation of crime, from the trouble, expenses and anxiety of a public trial, and also to protect the State from useless and expensive prosecutions.”

In its petition, petitioner states:

In ruling that the complaint should be dismissed for “insufficiency of evidence” the Honorable Ombudsman earnestly treated the preliminary investigation as a trial xxx.

A dismissal based on “insufficiency of evidence” is not tantamount to conducting the preliminary investigation as a trial. Petitioner points out that it is the purpose of a preliminary investigation to determine whether there is probable cause, as Pilapil vs. Sandiganbayan defined the term “probable cause”:

xxx the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.

It is to be stressed that it is only through evidence that a prosecutor, or the Ombudsman in this case, can determine the existence of such facts and circumstances constituting probable cause. Dismissing a complaint based on “insufficiency of evidence” simply means a want of evidence to warrant a finding of probable cause. Nowhere does the Ombudsman state in his assailed resolution that his dismissal of petitioner’s complaint was based on insufficiency of evidence to sustain a conviction. Only in the latter instance could the Ombudsman be possibly accused of treating the preliminary investigation as a trial.

Petitioner has made much of Olivarez vs. Sandiganbayan to bolster its arguments. However, petitioner’s reliance on said case is misplaced, the factual milieu thereof being entirely different from the one at hand. In Olivarez, what was assailed was the Ombudsman’s decision to reverse a recommendation to dismiss a case. There, the Court actually upheld the decision of the Ombudsman. In fact, Olivarez argues even against the petitioner’s cause as we further stated in that case that courts should not interfere in the exercise by the Office of the Ombudsman of investigatory and prosecutory powers granted it by the Constitution, thus:

The Ombudsman’s conformity thereto is but an exercise of his powers based upon constitutional mandate and the courts should not interfere in such exercise. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.

Indeed, the Court has almost always adopted, quite aptly, a policy of non-interference in the exercise of the Ombudsman’s constitutional mandated powers. The Ombudsman even has the power to dismiss a complaint outright without going through a preliminary investigation. To insulate the Office of the Ombudsman from outside pressure and improper influence, the Constitution as well as Rep. Act No. 6770 saw fit to endow that office with a wide latitude of investigatory and prosecutory powers, virtually free from legislative, executive or judicial intervention. If the Ombudsman, using professional judgment, finds the case dismissible, the Court shall respect such findings unless they are tainted with grave abuse of discretion. The Ombudsman has discretion to determine whether a criminal case, given its facts and circumstances, should be filed or not. This is basically his call.

The last issue raised by the petitioner relative to the negative finding of the Ombudsman as to the non-existence of probable cause against respondent University officials unquestionably relates to an exercise of judgment, not of jurisdiction. It cannot be overemphasized that in certiorari proceedings under Rule 65 of the Rules of Court, the inquiry is limited essentially on whether or not the public respondent acted without or in excess of its jurisdiction or with grave abuse of discretion. Grave abuse of discretion presupposes that the respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment as to be said to be equivalent to lack of jurisdiction. The grave abuse of discretion angle is completely absent in the present case.

Just like the extraordinary writ of certiorari, a writ of mandamus is unavailing to petitioner. For, basic is the rule that mandamus is employed to compel the performance, when refused, of a ministerial, as opposed to a discretionary, duty. When a decision has been reached in a matter involving discretion, mandamus may not be availed of to review or correct such decision, erroneous though it may be.True, mandamus is likewise available to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in the particular way urged by the petitioner. In the performance of an official duty involving discretion, the corresponding official can only be directed by mandamus to act, but not to act one way or the other, except where there is gross abuse of discretion, manifest injustice, or palpable excess of authority.

Petitioner’s allegation that the act of respondent University officials of awarding the contract in question to Muñoz Construction notwithstanding the alleged flaw in its bid gave unwarranted benefits to a private party and caused undue damage to the government cannot be given cogency.

As respondents correctly assert in their Comment, even assuming that the employment of a resident project engineer is required to be stated in the submission of bidding documents, Muñoz Construction may still be considered to have substantially complied with such requirement since a project engineer had been named to replace its former project engineer.

Needless to stress, respondents did not grant any benefit in favor of any person not qualified therefor or not legally entitled thereto. Nor was there any injury to the government. Muñoz Construction had presented the lowest complying and responsive bid. Accordingly, the award to it of the construction contract in question is most advantageous to the government. For sure, such was the proper course of action under the circumstances obtaining in this case.

WHEREFORE, the instant petition is DISMISSED.

Costs against petitioner.

SO ORDERED.

SOURCE:[ G.R. NO. 133517, January 30, 2006 ]ALBAY ACCREDITED CONSTRUCTORS ASSOCIATION, INC., REPRESENTED HEREIN BY ITS DULY AUTHORIZED SECRETARY, RODOLFO L. MADRID, JR., PETITIONER, VS. HONORABLE OMBUDSMAN ANIANO A. DESIERTO, LYLIA CORPORAL-SENA, OSCAR L. LANDAGAN, PRE-QUALIFICATION BIDS AND AWARDS COMMITTEE (PBAC) OF BICOL UNIVERSITY, AND ITS MEMBERS, NAMELY: EDUARDO M. LORIA, CIELO L. REX, AMALIA A. SARET, AND DONATO F. M. BAÑARES, AND LUDOLFO P. MUÑOZ, JR., RESPONDENTS. Tags: Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries

Were private respondents validly dismissed?

Article 283 of the Labor Code is the applicable law. It states,

ART. 283. Closure of establishment and reduction of personnel. –The employer may also terminate the employment of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the worker and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered as one (1) whole year.

For the cessation of business operations due to serious business losses or financial reverses to be valid, the employer must give the employee and the DOLE written notices 30 days prior to the effectivity of his separation.

In Agabon v. National Labor Relations Commission, we ruled that where the dismissal is for an authorized cause, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee, in the form of nominal damages, for the violation of his right to statutory due process. The amount of such damages is addressed to the sound discretion of the Court, taking into account the relevant circumstances. In Jaka Food Processing Corporation v. Pacot, we noted that the sanction should be stiffer because the dismissal process was initiated by the employer’s exercise of its management prerogative.

The NLRC and the Court of Appeals were unanimous in finding that BSFTI’s closure was bona fide. The records before us revealed that it suffered losses from 1996 to 1998. uxtaposing the facts of this case vis the applicable law and jurisprudence, P40,000 as nominal damages would be sufficient to vindicate each respondent’s right to due process. A violation of that right suffices to support an award of nominal damages.

In view of the valid dismissal, there is, thus, no basis for awarding the spouses P12,787.50 as 13th month pay.

Lastly, the Labor Arbiter and the NLRC found that the spouses’ advances exceeded their unpaid salaries by P43,402.54. The NLRC even noted that Annexes 18 to 341 of the petitioners’ Position Paper contained the petty cash vouchers evidencing payment of their salaries up to December 29, 1997. Interestingly, the spouses argued in their Position Paper that they were not paid their monthly salary of P15,000 from March 1997 to January 8, 1998. Their total claim for unpaid salaries therefore amounted to P129,488.93, minus the P13,125 which Allado paid to them. Yet, in their Motion for Partial Clarification/Reconsideration, they admitted that their total advances amounted to P178,075.95. Hence, based on their admitted advances, they were overpaid by P48,587.02. This is even a larger amount than what was arrived at by the Labor Arbiter and the NLRC. Said amount of P48,587.02 should be paid back to petitioners, to prevent unjust enrichment.

WHEREFORE, the instant petition is PARTIALLY GRANTED. Accordingly, the assailed Decision dated April 16, 2002, as well as the Resolution dated January 15, 2003, of the Court of Appeals in CA-G.R. SP No. 66733, are SET ASIDE, and a new one entered upholding the legality of the dismissal. Petitioners are ORDERED to pay each of the private respondents the amount of P40,000, or a total of P80,000 for the spouses representing nominal damages. Private respondents, however, are also ORDERED to refund to petitioners the amount of P48,587.02, which is the amount of admitted advances taken by the Veruasa spouses exceeding the amount of their unpaid salaries.

SO ORDERED.

SOURCE: [ G.R. NO. 157133, January 30, 2006 ]BUSINESS SERVICES OF THE FUTURE TODAY, INC. AND RAMON F. ALLADO, PETITIONERS, VS. COURT OF APPEALS, GILBERT C. VERUASA AND MA. CELESTINA A. VERUASA, RESPONDENTS. Tags: property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect

DID THE COURT OF APPEALS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS IN THAT IT ISSUED THE FIRST AND SECOND RESOLUTIONS IN VIOLATION OF THE RULE ON LIBERAL CONSTRUCTION OF THE RULES OF COURT?

The petition filed before the Court of Appeals did not contain an explanation as to why service upon the Office of the Solicitor General (0SG) and Atty. Omar M.C. Alam, counsel for respondents, was not made personally, albeit an affidavit of service by registered mail was attached thereto. The failure to make such written explanation, in violation of Section 11, Rule 13 of the 1997 Rules of Court, was the second ground for the dismissal of the petition.

Section 11, Rule 13 states:

SEC. 11. Priorities in modes of service and filing. – Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.

The requirement for personal service is mandatory such that Section 11, Rule 13 gives the court the discretion to consider a pleading or paper as not filed if the other modes of service of filing were resorted to and no written explanation was made as to why personal service was not done.[16] In the seminal case of Solar Team Entertainment, Inc. v. Judge Ricafort,[17] we stressed that strictest compliance with Section 11 of Rule 13 is mandated beginning one (1) month from the promulgation of said decision; i.e. one month from 05 August 1998.

The subject petition was filed on 26 March 2000. Petitioners explain, however, that their omission was due to inadvertence and was not a product of any malevolent scheme to prejudice respondents in any way. Thus, the evil sought to be avoided by the requirement of an explanation – to curb the practice of delaying the receipt of a pleading by a party through the simple expedient of serving the same by mail – was not present. Petitioners thus pray for a liberal construction of the provision in question following Section 6, Rule 1 of the Rules of Court.[18]

We are not persuaded.

In Solar,[19] as reiterated in the recent case of Ello v. Court of Appeals,[20] we explained that the court’s discretionary power to consider a pleading or paper as not filed for violation of Section 11, Rule 13 must be exercised properly and reasonably, taking into account the following factors: (1) the practicability of personal service; (2) the importance of the subject matter of the case or the issues involved therein; and (3) the prima facie merit of the pleading sought to be expunged for violation of Section 11.

We find that the Court of Appeals did not err in dismissing the petition for failure to observe the requirement of a written explanation why service was not made personally to the OSG and to Atty. Omar M.C. Alam, counsel for respondents.

First, it cannot be said that serving the petition on the OSG and Atty. Alam through personal service was not practical nor realistic under the circumstances. We note that the office of petitioners’ counsel, the firm of Bocobo Rondain Mendiola Cruz and Formoso, is in Pasig City while that of the OSG is in Makati City and that of Atty. Alam is in Quezon City. Considering that the law firm has for its client one of the biggest corporations in the country, it is safe to presume – precisely because of the absence of an explanation why service was not made personally – that the Pasig firm has in its employ enough people to effect personal service. Moreover, the NLRC Resolution denying petitioners’ motion for reconsideration was received by their counsel on 10 February 2000.[21] Petitioners, therefore, had until 11 April 2000 within which to file their petition for certiorari. From the records of the case, the petition was filed as early as 29 March 2000. Thus, petitioners had all the time in the world to serve their petition upon the OSG and respondents’ counsel by personal service and their failure to do so becomes inexcusable under the circumstances.

We have also considered the fact that the issue presented before the Court of Appeals is not one of first impression nor is it of such importance as to justify the relaxation of the rules of court on the ground of inadvertence. Likewise, from a reading of the petition, it does not appear that petitioners have a prima facie case. It is to be recalled that the sole issue presented by the Court of Appeals is whether or not the NLRC, under the facts of the case, gravely abused its discretion in vacating and setting aside the decision of the Labor Arbiter and remanding the case to the arbitral branch of origin for further proceedings. In Sevillana v. I.T. (International) Corp.,[22] we had already enunciated that the NLRC is not precluded by the rules to allow the parties to submit additional evidence to prove their respective claims even on appeal or to order the remand of the case to the administrative agency concerned for further study and investigation upon such issues.

IN SUM, we stress that petitioners’ claim of inadvertence as their reason for their failure to provide a written explanation why service of their petition was not made personally cannot and does not justify its omission. Such inadvertence does not constitute excusable negligence especially since said rule had already been in effect for three years before petitioners filed their petition before the Court of Appeals.[23] That petitioners blithely expect this Court to turn a blind eye to their procedural blunder underscores their utter disregard of the requirement in Section 11, Rule 13. Verily, such disregard of the rule cannot justly be rationalized by harking on the policy of liberal construction and substantial compliance.[24] To paraphrase Solar, if any controversy regarding a violation of Section 11 of Rule 13 were to be indiscriminately resolved under Section 6 of Rule 1 or Alonso v. Villamor[25] and other analogous cases, then Section 11 would become meaningless and its sound purpose negated.[26]

WHEREFORE, premises considered, the instant petition is DENIED. The Resolutions of the Court of Appeals dated 25 April 2000 and 12 July 2000, respectively, are AFFIRMED. With costs.

SO ORDERED.

SOURCE:[ G.R. NO. 144180, January 30, 2006 ]COCA COLA BOTTLERS PHILS., INC., NATALE J. DICOSMO, STEVE HEATH, MARY CHUA, ALBERTO FAJARDO, JESS BANGSIL, LITO GARCIA, NOEL ROXAS, CHITO ENRIQUEZ, FREDERICK KERULF, ARMANDO CANLAS AND DANILO DAUZ, PETITIONERS, VS. RODOLFO CABALO, JUANITO GERONA, LUIS GERONA, LUIS DE OCAMPO AND MARIO NILO MECUA, RESPONDENTS. Tags: conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect

DID THE COURT OF APPEALS SERIOUSLY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION IN DISMISSING THE C.A. PETITION NOTWITHSTANDING THE FACTS?

The Court of Appeals based its denial of the petition on Section 1, Rule 65 of the Rules of Court which provides that any petition filed under Rule 65 should be accompanied by a certified true copy of the judgment, order or resolution subject thereof and that, in this particular case, the petition was not so accompanied by a certified true copy of the NLRC resolution dated 29 December 1999 but only by a “mere photocopy.”

The problem presented is not novel. In fact, it is a fairly recurrent one in petitions for certiorari of NLRC decisions as it seems to be the practice of the NLRC to issue certified “xerox copies” only instead of certified “true copies.” We have, however, put an end to this issue in Quintano v. NLRC when we declared that there is no substantial distinction between a photocopy or a “Xerox copy” and a “true copy” for as long as the photocopy is certified by the proper officer of the court, tribunal, agency or office involved or his duly-authorized representative and that the same is a faithful reproduction of the original. We held therein:

The submission of the duplicate original or certified true copy of judgment, order, resolution or ruling subject of a petition for certiorari is essential to determine whether the court, body or tribunal, which rendered the same, indeed, committed grave abuse of discretion. The provision states that either a legible duplicate original or certified true copy thereof shall be submitted. If what is submitted is a copy, then it is required that the same is certified by the proper officer of the court, tribunal, agency or office involved or his duly-authorized representative. The purpose for this requirement is not difficult to see. It is to assure that such copy is a faithful reproduction of the judgment, order, resolution or ruling subject of the petition.

Indeed, for all intents and purposes, a “certified Xerox copy” is no different from a “certified true copy” of the original document. The operative word in the term “certified true copy” under Section 3, Rule 46 of the Rules of Court is “certified”. The word means “made certain.” It comes from the Latin word certificare – meaning, to make certain. Thus, as long as the copy of the assailed judgment, order, resolution or ruling submitted to the court has been certified by the proper officer of the court, tribunal, agency or office involved or his duly-authorized representative and that the same is a faithful reproduction thereof, then the requirement of the law has been complied with. It is presumed that, before making the certification, the authorized representative had compared the Xerox copy with the original and found the same a faithful reproduction thereof.

A perusal of the attached NLRC Decision easily discloses that it is not a “mere photocopy” but is, in fact, a certified photocopy of said decision. Each page of the decision has been certified by the NLRC Third Division’s Deputy Clerk of Court, Atty. Catalino R. Laderas, who is undoubtedly a proper officer to make the said certification. Moreover, there seems to be no question that the attached copy of the NLRC decision is a faithful reproduction thereof.

The Court of Appeals, however, zeroed in on the copy of the NLRC Resolution denying petitioners’ motion for reconsideration. As correctly pointed out by it, said copy is neither a certified true copy nor a certified photocopy of the NLRC resolution but seems to be a mere photocopy of the duplicate original copy sent to petitioners’ counsel.

SOURCE:[ G.R. NO. 144180, January 30, 2006 ]COCA COLA BOTTLERS PHILS., INC., NATALE J. DICOSMO, STEVE HEATH, MARY CHUA, ALBERTO FAJARDO, JESS BANGSIL, LITO GARCIA, NOEL ROXAS, CHITO ENRIQUEZ, FREDERICK KERULF, ARMANDO CANLAS AND DANILO DAUZ, PETITIONERS, VS. RODOLFO CABALO, JUANITO GERONA, LUIS GERONA, LUIS DE OCAMPO AND MARIO NILO MECUA, RESPONDENTS. Tags: Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San

WHETHER AN AWARD OF SEPARATION PAY IS PROPER TO AN EMPLOYEE WHO IS FOUND TO HAVE BEEN VALIDLY DISMISSED ON THE GROUND OF SERIOUS MISCONDUCT

The sole issue in this case — whether a validly dismissed employee like respondent is entitled to an award of separation pay — has already been squarely settled as early as 1988 in the leading case of Philippine Long Distance Telephone Co. vs. NLRC, wherein it was stated, viz.:

We hold that henceforth separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is, for example, habitual intoxication or an offense involving moral turpitude, like theft or illicit sexual relations with a fellow worker, the employer may not be required to give the dismissed employee separation pay, or financial assistance, or whatever other name it is called, on the ground of social justice. (Emphasis supplied)

Separation pay therefore, depends on the cause of dismissal, and may be accordingly awarded provided that the dismissal does not fall under either of two circumstances: (1) there was serious misconduct, or (2) the dismissal reflected on the employee’s moral character.

The question that now arises in this case is whether the cause of respondent’s dismissal falls under the two circumstances, i.e., serious misconduct or the dismissal reflected on the employee’s moral character.

The Court holds that respondent’s cause of dismissal in this case amounts as a serious misconduct and as such, separation pay should not have been awarded to her. Thus, the petition should be granted.

Misconduct is improper or wrongful conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error of judgment. To be a valid cause for termination, the misconduct must be serious.

While it is true, as respondent contends, that the Labor Arbiter did not tag her cause of dismissal as serious misconduct, nevertheless, it is its nature, not its label that characterizes the cause as serious misconduct. There is no question as regards the incident that caused respondent’s dismissal. While respondent’s co-worker Sumalague was eating at the back of the store, respondent rushed toward Sumalague and hit the latter on the face causing injuries. A scuffle ensued and despite their supervisor Recide’s pleas, the two continued to fight, prompting Recide to call the mall security. When the two were brought to the administration office, they continued bickering and did not heed the request of the manager to stop, and thus they were brought to the Customer Relations Office. Because of the incident, the two were banned from working within the premises. The fact that Sumalague sustained injuries is a matter that cannot be taken lightly. Moreover, the incident disturbed the peace in the work place, not to mention that respondent and Sumalague committed a breach of its discipline. Clearly, respondent committed serious misconduct within the meaning of Art. 282 of the Labor Code, providing for the dismissal of employees.

Her cause of dismissal amounting to a serious misconduct, respondent is not entitled to an award of separation pay. As further stated in Philippine Long Distance Telephone Co. vs. NLRC:

The policy of social justice is not intended to countenance wrongdoing simply because it is committed by the underprivileged. At best it may mitigate the penalty but it certainly will not condone the offense. Compassion for the poor is an imperative of every humane society but only when the recipient is not a rascal claiming an undeserved privilege. Social justice cannot be permitted to be refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty. Those who invoke social justice may do so only if their hands are clean and their motives blameless and not simply because they happen to be poor. This great policy of our Constitution is not meant for the protection of those who have proved they are not worthy of it, like the workers who have tainted the cause of labor with the blemishes of their own character.

WHEREFORE, the petition is GRANTED. The Court of Appeals Decision dated March 30, 2001 in CA-G.R. SP No. 58219 is MODIFIED to the effect that the NLRC Decision dated September 30, 1999 is AFFIRMED with MODIFICATION in that the award of separation pay in favor of respondent Juvy Soria is DELETED.

SO ORDERED.

SOURCE:[ G.R. NO. 147719, January 27, 2006 ]HA YUAN RESTAURANT, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND JUVY SORIA, RESPONDENTS. Tags: Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries

whether there is a perfected contract of sale between petitioner and respondent

A contract of sale is perfected at the moment there is a meeting of minds upon the thing which is the object of the contract and upon the price. From that moment, the parties may reciprocally demand performance subject to the law governing the form of contracts. In the case at bar, the subject of the contract is clear, that is, the house and lot where petitioner presently resides. However, it appears from the records that the parties have not reached an agreement on the purchase price.

It has been ruled that a definite agreement on the manner of payment of the purchase price is an essential element in the formation of a binding and enforceable contract of sale. The exchange of letters between petitioner and respondent shows that petitioner first offered to buy the property for P310,000.00, considering the numerous repairs that had to be done in the house. Respondent, in its letter dated September 20, 1984, informed petitioner that the bank has approved her request to repurchase the property in the amount of P362,000.00 but subject to the following terms and conditions: (1) cash payment of P310,000.00 upon approval of the request/proposal, and (2) balance of P52,000.00 to be paid within one (1) year at the rate of 35% interest per annum. Petitioner, in her letter to the bank dated October 9, 1984, made a counter-offer to pay a down payment of P100,000.00 and to pay the balance in 5 equal installments to be paid in 5 years with interest. Before the bank could act on petitioner’s proposal, the Central Bank of the Philippines ordered the closure of Banco Filipino and placed it under liquidation. Thus on December 5, 1985, petitioner wrote to Mr. Alberto V. Reyes, Deputy Liquidator of Banco Filipino, proposing to purchase the property under the following terms and conditions:

  1. Purchase price to be determined by the Liquidator
  2. Purchase price to be payable as follows:

2.A. P120,000.00 to be deposited immediately and to be lodged as A/P for the undersigned

2.B. Balance to be paid once the restraining order/preliminary injunction is lifted by the officers of Banco Filipino

On April 3, 1986, the Deputy Liquidator replied that they can only consider the sale of the property after the lifting of the Temporary Restraining Order issued by the Supreme Court and said sale shall be subject to the Central Bank rules and regulations.

Clearly, there was no agreement yet between the parties as regards the purchase price and the manner and schedule of its payment. Neither of them had expressed acceptance of the other party’s offer and counter-offer.

Notable is petitioner’s letter to the bank’s Deputy Liquidator, Mr. Alberto V. Reyes, which reveals that she herself believed that no agreement has yet been reached by the parties as regards the purchase price after the exchange of communication between her and the bank. In said letter, she made a totally new proposal for consideration of the bank’s Liquidator — that the purchase price shall be determined by the Liquidator; that she would deposit the amount of P120,000.00 to be lodged in her accounts payable; and that she would pay the balance after the lifting of the temporary restraining order issued by the Court on the bank’s transactions.

We find, therefore, that the Court of Appeals did not err in reversing the decision of the trial court. As the parties have not agreed on the purchase price for the property, petitioner’s action for specific performance against the bank must fail.

IN VIEW WHEREOF, the petition is DENIED.

SO ORDERED.

SOURCE: [ G.R. NO. 161524, January 27, 2006 ]LAURA M. MARNELEGO, PETITIONER, VS. BANCO FILIPINO SAVINGS AND MORTGAGE BANK, RESPONDENT. Tags: conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect

whether the compromise entered into is also valid

Validity of Compromise

It would be premature for this Court to declare that the compromise on the estate tax liability has been perfected and consummated, considering the earlier determination that the assessment against the estate was void. Nothing has been settled or finalized. Under Section 204(A) of the Tax Code, where the basic tax involved exceeds one million pesos or the settlement offered is less than the prescribed minimum rates, the compromise shall be subject to the approval of the NEB composed of the petitioner and four deputy commissioners.

Finally, as correctly held by the appellate court, this provision applies to all compromises, whether government-initiated or not. Ubi lex non distinguit, nec nos distinguere debemos. Where the law does not distinguish, we should not distinguish.

WHEREFORE, the Petition is hereby DENIED and the assailed Decision AFFIRMED. No pronouncement as to costs.

SO ORDERED.

SOURCE: [ G.R. NO. 159694, January 27, 2006 ]COMMISSIONER OF INTERNAL REVENUE, PETITIONER, VS. AZUCENA T. REYES, RESPONDENT.
[G.R. NO. 163581]AZUCENA T. REYES, PETITIONER, VS. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Tags: Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San

Whether petitioner’s assessment against the estate is valid

Validity of the Assessment Against the Estate


The second paragraph of Section 228 of the Tax Code is clear and mandatory. It provides as follows:

“Sec. 228. Protesting of Assessment. —

“The taxpayers shall be informed in writing of the law and the facts on which the assessment is made: otherwise, the assessment shall be void.”

In the present case, Reyes was not informed in writing of the law and the facts on which the assessment of estate taxes had been made. She was merely notified of the findings by the CIR, who had simply relied upon the provisions of former Section 229 prior to its amendment by Republic Act (RA) No. 8424, otherwise known as the Tax Reform Act of 1997.

First, RA 8424 has already amended the provision of Section 229 on protesting an assessment. The old requirement of merely notifying the taxpayer of the CIR’s findings was changed in 1998 to informing the taxpayer of not only the law, but also of the facts on which an assessment would be made; otherwise, the assessment itself would be invalid.

It was on February 12, 1998, that a preliminary assessment notice was issued against the estate. On April 22, 1998, the final estate tax assessment notice, as well as demand letter, was also issued. During those dates, RA 8424 was already in effect. The notice required under the old law was no longer sufficient under the new law.

To be simply informed in writing of the investigation being conducted and of the recommendation for the assessment of the estate taxes due is nothing but a perfunctory discharge of the tax function of correctly assessing a taxpayer. The act cannot be taken to mean that Reyes already knew the law and the facts on which the assessment was based. It does not at all conform to the compulsory requirement under Section 228. Moreover, the Letter of Authority received by respondent on March 14, 1997 was for the sheer purpose of investigation and was not even the requisite notice under the law.

The procedure for protesting an assessment under the Tax Code is found in Chapter III of Title VIII, which deals with remedies. Being procedural in nature, can its provision then be applied retroactively? The answer is yes.

The general rule is that statutes are prospective. However, statutes that are remedial, or that do not create new or take away vested rights, do not fall under the general rule against the retroactive operation of statutes. Clearly, Section 228 provides for the procedure in case an assessment is protested. The provision does not create new or take away vested rights. In both instances, it can surely be applied retroactively. Moreover, RA 8424 does not state, either expressly or by necessary implication, that pending actions are excepted from the operation of Section 228, or that applying it to pending proceedings would impair vested rights.

Second, the non-retroactive application of Revenue Regulation (RR) No. 12-99 is of no moment, considering that it merely implements the law.

A tax regulation is promulgated by the finance secretary to implement the provisions of the Tax Code. While it is desirable for the government authority or administrative agency to have one immediately issued after a law is passed, the absence of the regulation does not automatically mean that the law itself would become inoperative.

At the time the pre-assessment notice was issued to Reyes, RA 8424 already stated that the taxpayer must be informed of both the law and facts on which the assessment was based. Thus, the CIR should have required the assessment officers of the Bureau of Internal Revenue (BIR) to follow the clear mandate of the new law. The old regulation governing the issuance of estate tax assessment notices ran afoul of the rule that tax regulations — old as they were — should be in harmony with, and not supplant or modify, the law.

It may be argued that the Tax Code provisions are not self-executory. It would be too wide a stretch of the imagination, though, to still issue a regulation that would simply require tax officials to inform the taxpayer, in any manner, of the law and the facts on which an assessment was based. That requirement is neither difficult to make nor its desired results hard to achieve.

Moreover, an administrative rule interpretive of a statute, and not declarative of certain rights and corresponding obligations, is given retroactive effect as of the date of the effectivity of the statute. RR 12-99 is one such rule. Being interpretive of the provisions of the Tax Code, even if it was issued only on September 6, 1999, this regulation was to retroact to January 1, 1998 — a date prior to the issuance of the preliminary assessment notice and demand letter.

Third, neither Section 229 nor RR 12-85 can prevail over Section 228 of the Tax Code.

No doubt, Section 228 has replaced Section 229. The provision on protesting an assessment has been amended. Furthermore, in case of discrepancy between the law as amended and its implementing but old regulation, the former necessarily prevails. Thus, between Section 228 of the Tax Code and the pertinent provisions of RR 12-85, the latter cannot stand because it cannot go beyond the provision of the law. The law must still be followed, even though the existing tax regulation at that time provided for a different procedure. The regulation then simply provided that notice be sent to the respondent in the form prescribed, and that no consequence would ensue for failure to comply with that form.

Fourth, petitioner violated the cardinal rule in administrative law that the taxpayer be accorded due process. Not only was the law here disregarded, but no valid notice was sent, either. A void assessment bears no valid fruit.

The law imposes a substantive, not merely a formal, requirement. To proceed heedlessly with tax collection without first establishing a valid assessment is evidently violative of the cardinal principle in administrative investigations: that taxpayers should be able to present their case and adduce supporting evidence. In the instant case, respondent has not been informed of the basis of the estate tax liability. Without complying with the unequivocal mandate of first informing the taxpayer of the government’s claim, there can be no deprivation of property, because no effective protest can be made. The haphazard shot at slapping an assessment, supposedly based on estate taxation’s general provisions that are expected to be known by the taxpayer, is utter chicanery.

Even a cursory review of the preliminary assessment notice, as well as the demand letter sent, reveals the lack of basis for — not to mention the insufficiency of — the gross figures and details of the itemized deductions indicated in the notice and the letter. This Court cannot countenance an assessment based on estimates that appear to have been arbitrarily or capriciously arrived at. Although taxes are
the lifeblood of the government, their assessment and collection “should be made in accordance with law as any arbitrariness will negate the very reason for government itself.”

Fifth, the rule against estoppel does not apply. Although the government cannot be estopped by the negligence or omission of its agents, the obligatory provision on protesting a tax assessment cannot be rendered nugatory by a mere act of the CIR .

Tax laws are civil in nature. Under our Civil Code, acts executed against the mandatory provisions of law are void, except when the law itself authorizes the validity of those acts. Failure to comply with Section 228 does not only render the assessment void, but also finds no validation in any provision in the Tax Code. We cannot condone errant or enterprising tax officials, as they are expected to be vigilant and law-abiding.

SOURCE: [ G.R. NO. 159694, January 27, 2006 ]COMMISSIONER OF INTERNAL REVENUE, PETITIONER, VS. AZUCENA T. REYES, RESPONDENT.[G.R. NO. 163581]
AZUCENA T. REYES, PETITIONER, VS. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Tags: Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched

who should be issued letters of administration

ENTITLEMENT TO LETTERS OF ADMINISTRATION

An administrator is a person appointed by the court to administer the intestate estate of the decedent. Rule 78, Section 6 of the Rules of Court prescribes an order of preference in the appointment of an administrator:

Sec. 6 When and to whom letters of administration granted. – If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give a bond, or a person dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that the administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. The order of preference does not rule out the appointment of co-administrators, specially in cases where
justice and equity demand that opposing parties or factions be represented in the management of the estates, a situation which obtains here.

It is in this light that we see fit to appoint joint administrators, in the persons of Carlota Delgado vda. de de la Rosa and a nominee of the nephews and nieces of Guillermo Rustia. They are the next of kin of the deceased spouses Josefa Delgado and Guillermo Rustia, respectively.

WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision of the RTC Manila, Branch 55) is hereby DENIED. The assailed October 24, 2002 decision of the Court of Appeals is AFFIRMED with the following modifications:

  1. Guillermo Rustia’s June 15, 1973 affidavit of self-adjudication is hereby ANNULLED.
  2. the intestate estate of Guillermo Rustia shall inherit half of the intestate estate of Josefa Delgado. The remaining half shall pertain to (a) the full and half-siblings of Josefa Delgado who survived her and (b) the children of any of Josefa Delgado’s full- or half-siblings who may have predeceased her, also surviving at the time of her death. Josefa Delgado’s grandnephews and grandnieces are excluded from her estate. In this connection, the trial court is hereby ordered to determine the identities of the relatives of Josefa Delgado who are entitled to share in her estate.
  3. Guillermo Rustia’s estate (including its one-half share of Josefa Delgado’s estate) shall be inherited by Marciana Rustia vda. de Damian and Hortencia Rustia Cruz (whose respective shares shall be per capita) and the children of the late Roman Rustia, Sr. (who survived Guillermo Rustia and whose respective shares shall be per stirpes). Considering that Marciana Rustia vda. de Damian and Hortencia Rustia Cruz are now deceased, their respective shares shall pertain to their estates.
  4. Letters of administration over the still unsettled intestate estates of Guillermo Rustia and Josefa Delgado shall issue to Carlota Delgado vda. de de la Rosa and to a nominee from among the heirs of Guillermo Rustia, as joint administrators, upon their qualification and filing of the requisite bond in such amount as may be determined by the trial court.

No pronouncement as to costs.

SO ORDERED.

SOURCE: [ G.R. NO. 155733, January 27, 2006 ]IN THE MATTER OF THE INTESTATE ESTATES OF THE DECEASED JOSEFA DELGADO AND GUILLERMO RUSTIA CARLOTA DELGADO VDA. DE DE LA ROSA AND OTHER HEIRS OF LUIS DELGADO, NAMELY, HEIRS OF CONCHA VDA. DE AREVALO, HEIRS OF LUISA DELGADO VDA. DE DANAO, ANGELA DELGADO ARESPACOCHAGA, TERESA DELGADO PERLAS, CAROLINA DELGADO-ARESPACOCHAGA, RODOLFO DELGADO, BENJAMIN DELGADO, GLICERIA DELGADO AND CLEOFAS DELGADO; AND HEIRS OF GORGONIO DELGADO, NAMELY, RAMON DELGADO CAMPO, CARLOS DELGADO CAMPO, CLARITA DELGADO CAMPO-REIZA, YOLANDA DELGADO ENCINAS, FELISA DELGADO CAMPO-ENCINAS AND MELINDA DELGADO CAMPO-MADARANG, PETITIONERS, VS. HEIRS OF MARCIANA RUSTIA VDA. DE DAMIAN, NAMELY, GUILLERMO R. DAMIAN AND JOSE R. DAMIAN; HEIRS OF HORTENCIA RUSTIA CRUZ, NAMELY, TERESITA CRUZ-SISON, HORACIO R. CRUZ, JOSEFINA CRUZ-RODIL, AMELIA CRUZ-ENRIQUEZ AND FIDEL R. CRUZ, JR.; HEIRS OF ROMAN RUSTIA, SR., NAMELY, JOSEFINA RUSTIA ALBANO, VIRGINIA RUSTIA PARAISO, ROMAN RUSTIA, JR., SERGIO RUSTIA, FRANCISCO RUSTIA, LETICIA RUSTIA-MIRANDA; AND GUILLERMINA RUSTIA, AS OPPOSITORS;[1] AND GUILLERMA RUSTIA, AS INTERVENOR,[2] RESPONDENTS.[3] Tags: property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect