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CA junks BIR petition vs De Lima

/ 03:36 PM October 07, 2015

The Court of Appeals dismissed the petition filed by the Bureau of Internal Revenue (BIR) against Justice Secretary Leila de Lima in connection with the dismissal of a P10.06-million tax evasion case against the heir of Oscar Ongsiako and the register of deeds of Pasay City, the Court .

In its decision made public Wednesday, the appeals court 4th Division through Associate Justice Noel Tijam said petitioner BIR through Commissioner Kim Henares used the wrong remedy in questioning the Department of Justice (DOJ) resolution.

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The appeals court said under the Rules of Court, petitioners can only go straight to them “in the absence of an appeal or any plain, speedy, and adequate remedy in the ordinary course of law.”

The court said, under the National Prosecution Service Rule on Appeal, BIR should have first filed a petition for review before the Secretary of Justice.

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“It bears stressing that the resolution of the investigating prosecutor is subject to appeal to the Justice Secretary who, under the Revised Administrative Code exercises power of control and supervision over the said investigating prosecutor,” the appeals court said.

Assuming that the petition was the proper remedy, the appeals court said it still has no merit because determining the basis on whether to dismiss or file a case in court is “essentially an executive function that is lodged at the first instance with the public prosecutor and ultimately the Secretary of Justice.”

“Courts can neither override their determination nor substitute their own judgment…they cannot likewise order the prosecution of the accused when the prosecutor has not found prima facie case,” the appeals court said adding that the only exception is when the DOJ resolution is tainted with grave abuse of discretion which in this case is not.

“BIR failed to show that the Secretary of Justice committed grave abuse of discretion in dismissing the criminal complaint against Private Respondents,” the appeals court added.

The case stemmed from the 2011 complaint filed by BIR against Juan Miguel Ongsiako with one count of willful attempt to evade or defeat payment of Estate Tax, one count of willful attempt to evade or defeat payment of Documentary Stamp Tax (DST) Return and to pay tax, in violation of Sections 254 and 255 of the National Internal Revenue Code (NIRC) of 1997.

READ: 2 more sued for failing to pay estate taxes | BIR goes after Bulacan gold trader

Juan Miguel was also charged with one count of willful attempt to evade or defeat payment of Capital Gains Tax (CGT) and one count of willful failure to file CGT Return and to pay tax, all in violation of Sections 254 and 255 of the NIRC of 1997.

The DOJ, through Assistant State Prosecutor Stewart Allan Mariano, however dismissed the complaint due to insufficiency of evidence. The BIR went to the Court of Appeals after the DOJ denied their motion for reconsideration. CDG

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TAGS: Bureau of Internal Revenue (BIR), Court of Appeals, Juan Miguel Ongsiako, Justice Secretary Leila de Lima, kim henares, National Prosecution Service (NPS), Tax evasion
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