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Court of Tax Appeals

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Ciriaco B, et al. vs. ' Commissiontr of Internal Revenue

CTA Case No. 1353 July 19, 1968


AKRFPUBLIC OF THE PHILIPPINES .

COURT OF TAX APPEAL?

QUEZON CITY


CIRIACO B, MRNDOZA


Petitioner, 1; 4 Lb

versus CTA CASE NO, 1353

' COMMISSIONTR OF INTERNAL

REVENUE,

Respondent.


1 Kkawneeeeeseeaeawe &


DECiIsSsiog8


This case involves an assessment by the re-

spondent against petitioner fer advance sales

tax in the smount of 2195,21%.37, plus #10,000,00


“gn eanprindons or a total sum of °205,21%.37 on

alleged importations of goods or articles (house-

hold appliances).


‘Pursuant to a search werrant issued by the

Court of First Instance of Manila, a team con-

posed of Constabulary, Nevenue and Customs agents

(CRC for brevity) raided and searched a bodega

Located at 137 Yakal st., Makati, Rizal on August

26, 1958 and owned by the herein petitioner.


In the course of the said search, bundles of

éuplidate Informal Sntry statements of duties

evideneing impertations of household electrical

epplisnces and other goods or articles consigned


DECISION .

CTA CASE NO. 1353


te different persons, were confiscated or seized

from the said bedegea by the CRC team. Also con- |

fiseated were 13 crates of household electrical

epplianees which the team found loaded on e cargo

truck parked in front of petitioner's bodega.

The truck belonged to Yum Ping brokerage.


The subsequent fects are as stipulated by

the parties thus: |


2. That by a letter dated August

20, 1959, addressed to the Petitioner

and Sted in the mail on Sept. 3,

1959, Respondent assessed and

demanded payment from the Petitioner

of the sum of £295,214.37, as advance

sales tax (in the sum of *195,21%.37)

and compromise (in the sum of #10,-

000,00) elaimed to be due from the

Petitioner on certain alleged importe- -

tions of goods all te have been

made in the years 1955 to 1957. Cony

of said letter dated August 20, 1959,

is hereto attached and made an in-

tegrel part hereof as ANNEX "A",


3e That by a letter dated September

15, 1959, and filed with the Aesponi-

ent on September 17, 1959, the Peti-

tioner, thru counsel, Gisputed the

aforesaid assessment and requested

for a re-investigation and reconsidera-

tion of the said assessment on the

alleged ground that the said assess-

ment was erroneously besed on alleged

importations which Petitioner

claimed he never made. Copy of said —

letter dated September 15, 1959, is

hereto attached and made an integral

part hereof as ANNEX “B",


%» That the Respondent, by a

letter dated October 1, 1959, addressed

to and received by the Petitioner's

counsel om October 22, 1959, denied

the aforementioned request of the *eti-

tioner for re-investigation and re- —


DECISION «

CTA CASE WO. 1353


3


eonsideration of the assessment

stating that the said assessment ir

correct and lawfully due from the

Petitioner, it having been besed on

a5 exasination of the books of ac-

eounts ef the Petitioner. m. of

said letter dated Setober 1, 1999,

is hereto attached end made an in-

— part hereof os ANNEX “C",


§. That the Petitioner thru

att by a letter rr An October

» and filed with the Respond-

pe on the same date, requested again

the Res ent for the reinvestiga-

tion reconsideration of the assess-

ment, on the ground that he aid not

import the goods upon which ee Re-

r ent e@ the a

ting as further o thet (a)

he books of the Pe itiensr were not

pened by the Respondent's investiga-

ting agents; (b) that the compensating

tax on the goods in question have

' been paid by the respective importers

thereof, of which the Petitioner is

not one of thems (e) that assuming

thet the atyenee sales tax were. the

tax collectible, and assuming further

that the goods in question are all

subject to 1007 mark 8 ~ defieien-

ey advance sales tax only amount

to 236, 442.7 inotena “of 3195, 216457

as assessed the Nespendent; and

that (4) the Petitioner is the

proper party liable for the advance

seles tax on said importations. Copy

of said letter dated October 23, 1959,

is hereto attsched and made an in-

tegral part hereof as ANNEX “bD",


the Petitioner thru counsel, fied with


the Respondent a nemorandum dated


December ©, 1959, reiterating the


request for re-investigation and re-


consideration of the assessment in

estion, stating as edditional ——


or the Fequest hat the documen


wich the questioned assesament —


based de not belong to the Petitioner;


that they (the documents) were used


in a criminal case instituted against


DECISION «

CTA CASE NO. 1353


iy


the Petitioner and other persons, but

the said criminal case was dismissed;

and that the Petitioner hed nothing

te do with the aforesaid documents

and with the goods therein referred

to, as both said documents and said

goods do not belong to him. of

seid memorandum dated December


1959, is hereto attached and made an

integral part hereof as ANNEX "5",


7. That on March 1, 1963, a Com

plaint was filed by the herein Re-

spondent, as plaintiff, against the

herein Petitioner as defendant, with

the Court of First Instance of


(Ciwtl Case No. 53259), for the eol-

lection ef the abovementioned assess-

iy es ee and the copy of

& complaint were ectuelly served

on the herein at on March 7,

1963. Copy of sa he yy and Sum-

mons are hereto athe and made

integral parts hereof as ANVEXES “F*"

and "F-1" respectively,


8. That in this collection suit,

cere, Manila, Civil Case “Soe. 53259)

the herein Petitioner filed his Answer,

in due time, alleging in substance

sult for colleetion is

So ateeuhgn Rah ache on dubegenl part

oO a e an re

hereof as ANNEX "G*.

9. The partion herein reserve

their right to adduce such additional

eral and documentary evidenee they

may deem proper. ;

The issues to be resolved by this Court are

whether or not (a) the petition for review was

seasonably filed, ané (b) whether or not peti-

tioner is the importer of the appliances men-

tioned in the duplicate informal entries seised

by the CRC teem in his bodega and es such liable


for advance sales tax on their importations.


* 167


DECISION «

CTA CASE MO. 1353


5


a


Respondent contends that this Court has no

jurisdiction te entertain the present petition for

review for the reason that the same vas filed


beyond the statutory 30-day period. Fetitioner

on the other hand contends otherwise.


As we have gathered from the stipuletion of

facts ef the parties, the assessment dated August

20, 1999, was mailed by the reagpondent on Septem-

ber 3, 1959. ‘etitioner disputed the aforesaid

assesanent and requested a re-investigation and

reconsideretion thereof in his (petitioner) |

letter dated September 15, 1959 and filed with

respomient on September 17, 1959. The said request

for reconsideration and re-investigation wes

denied by respondent in his letter dated Oetober

1, 1959 whieh was received by petitioner on Oct-

ober 22, 1959, and from this day the statutory

30-day period commenced. The running of said

peried was interrupted on Ostober 23, 1959 when

petitioner filed with respondent ancther request

for reconsideration and re-investigation on grounds

other than those stated in his first letter for re-

consideration. On December 9, 1999, petitioner __

filed with respondent a memorandum in support of

his second request for reconsideration and re-

investigation. As to what transpired subsequent- i

iy, that ts in controversy.


\

.


168


DECISION

CTA CASF BO, 1353 6 ~ Petitioner urges that the motion for re-- consideration dated Sctober 23, 1959 was never “acted upon by respondent until the filing ef a eivil case in the Court ef First Instance of Ma- mila on Maroh 1, 1963 for the collection of the assessment in question. Respomient, for his part, refers our attention to "xhibit 7, a copy of a letter dated April 12, 1960 (p. 6% of the BIR re- cords) denying the motion fer reconsideration aforesaid. It is cleimed that said letter was sent to petitioner on April 29, 1960. Testifying on this point counre! fer the petitioner stated that he never received the original copy of that said letter otherwise, as is his practice, he would heave seted accordingly.

( Trere is nothing in Fxhibit 7 to show that the original thereof hes been sent to petitioner. No notetion thereon ean reasonably bear this out. And 4f there were a notetion to this effeet the same, standing alone as it does, would not be suf- ficient preof of netice, following the esteblishe’ doctrine in the case of Gonzele ?. Yava v. The Com- missioner of Internal Revenue (6.2. Ho. L-19470, Jan. 39, 1965) follewed by this Ceurt in the case of Margerite Soriano de %. de Vieufia, et al v. Commissioner of Iintermal Revenue (CTA Case No. 1917, September 6, 1966). The Court is therefore constrained to believe that the original of re~ * 4169

BECISION -

CTA CASE NO. 13530 a 7 spondent's letter of April 12, 1960 was not sent to petitioner as testified te by petitioner's counsel. ) | . a The dental of petitioner's motion for recon- sideration of October 23, 1959 is the filing of the civil case in the Court of First Instance of Manila on March 1, 1963. The date of notice there- of should be the receipt of the summons on “arch 7,» 1963. Seedless to say, this petition was filed before this Court on March 21, 1963 and so it was seasonably filed.

Ané now we come te the validity of the al pealed assessment. The same is based on duplicetes of informal import entry statements, not in the neme of petitioner but of different persons, whieh were seized by the CRC agents from petitioner's bodege. It is further based on the testimony of Termin Redoblado, a BIR examiner who participated in the raid of said ‘bodega in Yakal street, Makati, Aigal om August 26, 1958. As a witness, Fedoblade testified that according te information subsequent- ly gethered by the Constabulary and transmitted to him, most of the names appearing in the duplicates of said statements are of fictitious persons, From this evidence and the cirevmstance that peti- tLoner 414 not produce his books of account, re- spondent advances the inference that petitioner * 17¢

DECISION

CTA CASE NO. 9353 is the importer of the items appearing in the eforementioned documents, This inference, solely on the besis of the evidence of respondent, is intrinsically inconclusive. When teken in the light of the evidence adduced by the petitioner explaining the presence in his bodega of the in- formal tuport entries in question, the inference becomes remote, — ce Redoblado's testimony thet most of the names ' appearing in the duplicates of informal entry statements are fictitious, is pure hearsay. There ie on the other hand substentiel evidence te the contrary. Taking the stand, petitioner ex- — plained that the documents in question ao not belong to him but to Mereiel *. Enriquez and to GOMBCO, that at the time of the seizure of the aforesaid documents GOMPCO wes using his bodegs with his permissions that he allowed GOMPCO to use seid bodega because some of its owners whose names he mentioned were his friends; that the appliances seized by the CRC team during the same raid belong te GOMPCO,. On this point his testimony finds cor- peboration from Mercial P. Enriquez, an agent of 8 cus tons broker, who testified that the aforesaid documents belong to his personal file; thet most of the appliances mentioned in seid documents be- long to GOMPCO while the rest belong to Army end “oevy 474 ——————— — —

DECISION «

9 personnel ané other persons; that his personal files which were seised by the CNC team included GOMF.CO stock cards and COMECO delivery receipts. Another witness, Martin Magante, then an employe of GOMECS, corroborated aspects of the testimony of petitioner. Indeed, “edoblado himself admitted that many whose names appear in the seized informal import entry statements acknowledged the ownership . of the appliences sentioned therein and that the two trneklosds of appliances seized in the premises of petitioner's bodega beleng to GOMECO. Re- spondent, with the vast facilities at his ecumand, with the Constabulary helping him, could have easily cheeked the truth of the testimony of patie tioner, of Mareial *. “nriques, and of Magante, especially, as they gave the names of some of the owners of GOMBCO, and could have easily presented rebuttal evidence to destroy petitioner's ver~ sion. That the same stands unrebutted leads us to believe that their statements are substantially true.

In fine, the Court is of the opinton and go holds thet the appealed assessment cannot be sus- tained. | WIFREPORE, the deeision appealed from is hereby reversed, ‘without pronouncement as te costs.

DECISION «

CTA CAST WO, 1353 19 80 ORDERED.

Quezon City, July 19, 196°.

fl. Un RAMON L. AVANCRRA associate Judge

WE CONCUR:

ROMAN ©, UMAIT |

Presiding Judge

Aseoclate Judge

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