Showing posts with label liberalism/liberal. Show all posts
Showing posts with label liberalism/liberal. Show all posts

Monday, August 1, 2016

THE LONG ROAD TO LIBERATION



photo from http://www.philstar.com/metro/2016/07/31/1608339/ltfrb-bans-uv-express-vehicles-edsa



IN 2010, Noynoy Aquino's party intimated, that is to say by implication, the rise of a wangwang-less social liberal society. This social liberal society, so the message went, should constitute the President's bosses, not his subjects. However, as the years progressed, people saw more neoliberal and corporate liberal interests in the "liberal" of the Liberal Party than social liberal ones. Sure there were social liberal directions that remained, the CCT (qua CCT), for instance, as well as the expanded TESDA skills program (very social liberal, being in the service of both the working class and the employers' class at the same time). In the long run, though, what remained embedded in people's minds were these: hardly could someone see a social liberal direction in the elitist DAP arrangements with politicians, as against what they might see had it been a participatory DAP arrangement with the people (the former produced such crap as a convention center, while the latter might have produced such useful efforts as a market bazaar space for vendors, more mangrove projects, or solar power for villages). . . .
    But that's the past, and now we're in the present. So now let's talk about the election campaign of 2016, wherein Digong Duterte did not just imply, but explicitly described himself as, being a Socialist. He boasted of his projects in Davao City as manifestations of a Socialist mayor's sensibility in relation to choosing which provisions are priority to his community (sophisticated healthcare, women's centers, heavily-protected LGBT rights, etc.).
    So when Duterte won the Presidency and we saw such appointments as Lisa Maza's for the Anti-Poverty Commission, no one was shocked. Nor that another leftist was given the post of Agrarian Reform secretary to hasten decades-old go-aheads for land redistribution. Nor were the leftists among his supporters shocked to witness the appointment of a scion of a wealthy family who now mans the Department of Natural Resources, because her profile as a pro-people anti-mining activist seems to go beyond mere show for "corporate social responsibility" and is familiar to all as being so (moderate though it may be to the radicals).
    There are other sensible little diktats that display this Dutertean socialist sense, as when the President messaged NAIA people to avoid another case of laglag-bala victimizing ordinary passengers (or be ready for airport personnel cleansing). That diktat was a breath of fresh air from the era of Noynoy Aquino that kept on denying that such a racket existed at Aquino's cousin's turf, that kept providing everyone in the process the legalist argument that there are existing laws governing such cases and that all that needed to be done was merely to follow what the laws said.
    A breath of fresh air. Until yesterday, when this news came out.

NOW under the Duterte government, the Land Transportation Franchising and Regulatory Board (LTFRB), along with the traffic-planning and -enforcing Metropolitan Manila Development Authority (MMDA), announced that all UV Express vans would henceforth be banned from Epifanio de los Santos' avenue because, as legalism goes, the UV Express franchise does not include the vehicles' entry into Epifanio de los Santos' avenue of traffic ill-repute.
    Now, I remember the time when, despite the Aquino government's neoliberal lack of empathy towards the common commuter, we would still be shocked by a Mar Roxas blurting out such classic lines as "heavy traffic is a sign of industrial progress", or something to that effect. Discussions during that time, especially among socialists, touched on the ultimate solution: the nationalization of the EdlSA bus route and the provision of a ceiling for the number of private transportation using the main avenue during the rush hours.
    One would have expected such an ultimate nationalization solution to come from a socialist Duterte. Surprise, surprise. Instead, the UV Express of the lower-middle and upper-lower classes are taken out, so that the cars and Ubers of the middle and upper-middle and upper classes can continue to hog the traffic of EdlSA. Meanwhile, we can only conjecture on why the buses---also the mode for the lower-middle and upper-lower and lower classes---are being permitted to remain on EdlSA (and remember that buses use the entire length of EdlSA). We can only think of two reasons: there's the legalist rationale (the buses' franchise do specify where they are allowed to roll), and then what the rumors say (that the buses are mostly franchises owned by retired generals and reigning politicians friendly to the Duterte government). Totoo kaya 'tong rumor na 'to? Sana naman hindi.
    Pero the basic question for now is this: what comfort does this memorandum provide to the UV Express-using working class? Well, this niche of the working class would now have to ply the heavier rush hour traffic of other avenues, and then be dropped off corners or UVE stations 200 meters or more away from their connecting MRT stations. Thank you, LTFRB, for the Aquinoesque inconvenience.
    Isn't it funny? Aquino would start his administration with a lie using elements of public transport as overall metaphor: that his social liberalism would be displayed through a non-elitist wangwang-less and counterflow-less traffic. Duterte just started his public transport administration with a truth: that his lopsided socialism would be demonstrated through a traffic legalism one can't make heads or tails of---if it is, on the one hand, indeed socialist and pro-working class commuter, or, on the other hand, pro-bus owners and car-owners or what. Have the buses and some colonels' taxi lines become the newly-reborn wangwangs?
    On this uncategorizable memorandum, at least, I suspend my labeling pen till the next shocking (mostly to the socialists) public transport diktat. [S / -I]



Monday, August 18, 2014

Does it take Transparency and Vigilance, for them to tango?



YELPED and whispered all over town are these recent interesting news about some/many administration people’s growing enthusiasm for the sudden bright idea of trying to quickly change the charter, better known in the media under the appellative of Charter Change (or Cha-Cha).
     The goal, unabashedly intimated, is to give the President a chance to run for a second term, currently an unconstitutional undertaking.

Photo borrowed from rappler.com
     Incidentally, there are also these two interlinked announced upcoming events. One is the August 23 multi-sector “people’s congress” in Cebu City backed by the Catholic Church that hopes to launch on the same day the People’s Initiative Against the Pork Barrel (or PIAP), an initiative that would criminalize pork barrel fund creation and spending (and render as suspect certain items in the current budget plan for 2015). Then there’s the August 25-scheduled rally against the continuing pork barrel system (this will likewise commemorate the Million People March, one year to this day, as well as formally bring the PIAP signature campaign to Luzon).
     The initiative is a product of the awakened awareness in the Filipino psyche of the people’s right and privilege to be participants in government care of that long-hidden direct democracy instrument lurking behind Article XVII, Section 2, of the Constitution, which instrument was enabled by Republic Act 6735 (The Initiative and Referendum Act of 1987-1989) that had likewise hitherto been a sleeping/unused law.
     By this awakened direct-democratic awareness, therefore, some quarters fear that the charter change being cooked by the Aquino government will also be used to totally overhaul the 1987 Constitution, which could possibly result in the removal of the direct-democracy clause that the political elite in Congress will presumably do anything to be rid of to consequently keep its grip on discretionary or confidential funds and keep the people and the Supreme Court (which recently rendered such funds as unconstitutional) out of the picture and the ball game.
     But, should that happen, … well, …  wouldn’t the Marxists triumph and feel vindicated in their belief that only armed struggle and subversion can truly wrest abuse away from the management of the political elite and place justice in the hands of the people? They’d say, “see? We told you so. Since the political elite will never ever allow the people to muster power for change, a change that the political elite in our fake democracy fears will tear their access to privileges upon the country’s coffers away from them, the only way to achieve change then is by subverting their respective existences. Direct democracy, or true democracy (demos people, kratos power), will never be allowed to happen by the sublime royal class that rules our, actually, plutocratic state.”

STILL and all, I remain armed (not with a gun, but) with the hope that there are still ruling-party elements today who, 1.) in their hearts, would want to be true to their Liberal tag as social liberals and, 2.) in spirit, would opt to be placed an ocean away from their neoliberal, corporate liberal, interest-group liberal and limousine liberal peers, and therefore might perhaps to remember that RA 6735 used to be not an anti-Noynoy Aquino administration vehicle but a Liberal Party cause (after all, it was co-authored by that late LP stalwart, Neptali Gonzales, wasn’t it?). In short, they just might rally for more social liberal influence in the process of governance at MalacaƱang as this governance develops in the ticking present. Leni Robredo, for one, is an advocate of participatory budgeting and participatory democracy, albeit her bill on this issue is absent the Porto Alegre model’s requirement of electing the municipal district delegates. (The Porto Alegre participatory budgeting model with elected, instead of merely appointed by someone or by some committee, delegates is crucial to avoiding participatory budgeting’s being used again as just another Janet Lim-Napoles-scam-like instrument for the corrupt among the political elite. A frown on the absence of that requirement was made manifest upon the curious program of DILG Secretary and presidential aspirant Mar Roxas, which was porkishly called Grassroots Participatory Budgeting Process, when the existence of that “process” of disbursing lump sums started to be known in the media). Robredo, however, is also an advocate of open government, and would thus be logically open to such amendments as we implied above to her participatory budgeting bill.
     Isn’t it ironic that one of the lawyers defending the impeached Chief Justice Renato Corona during his trial, Jose M. Roy III, is now one of the voices rallying—behind former Chief Justice Reynato Puno—for the necessity and timely triumph of the people’s empowerment through the People’s Initiative instrument? Ironic, in the sense that he was then defending a Justice believed by many to be a puppet of the former Macapagal-Arroyo royalist gang but now seems to have the people as his pro bono client, whilst the Liberal Party of President Aquino’s allegedly anti-corruption “Straight Path” governance is now being accused by the people of scattering an abundance of pork barrels (for his political elite base) as well as of rigging biddings and protecting tax evading companies that supported the party’s campaign.
     But let’s go back to the ruling-party social liberals (Neptali Gonzales’ ideological children) currently trying to maintain influence in the Liberal Party against the influence of their corporate-liberal mates. And I’d say, should charter change win the day anytime this year and any amount of Million People Marches gets frustrated and produces nothing, then perhaps all that the social liberal faction in that ruling party can do (with the people behind them) is offer the following title and articles for incorporation into the new charter to counter the corporate liberals’ likely wish to remove the people’s initiative clause in the presently-existing constitution. The title and articles below are adaptations of a title and articles from the Swiss Constitution, which some would protest against for being Swiss, but must everything in our Constitution be copied from the texts of American political elitism and plutocratic accommodation? The text are from admin.ch, with my adaptations for possible Philippine use:

Title 4: The People and the Regions

Chapter 1: General Provisions

Art. 136 Political rights

1 All Filipino citizens over the age of eighteen, unless they lack legal capacity due to mental illness or mental incapacity, have political rights in national matters. All citizens have the same political rights and duties.

2 They may participate in elections to the National Parliament and in national popular votes, and launch or sign popular initiatives and requests for referendums in national matters.

Art. 137 Political parties
The political parties shall contribute to forming the opinion and will of the People.

Chapter 2: Initiative and Referendum

Art. 138 Popular initiative requesting the complete revision of the Constitution

1 Any 1,250,000 persons eligible to vote may within 18 months of the official publication of their initiative propose a complete revision of the Constitution.

2 This proposal must be submitted to a vote of the People.

Art. 139 Popular initiative requesting a partial revision of the Constitution in specific terms

1 Any 1,250,000 persons eligible to vote may within 18 months of the official publication of their initiative request a partial revision of the Constitution.

2 A popular initiative for the partial revision of the Constitution may take the form of a general proposal or of a specific draft of the provisions proposed.

3 If the initiative fails to comply with the requirements of consistency of form, and of subject matter, or if it infringes mandatory provisions of international law, the National Parliament shall declare it to be invalid in whole or in part.

4 If the National Parliament is in agreement with an initiative in the form of a general proposal, it shall draft the partial revision on the basis of the initiative and submit it to the vote of the People and the Regions. If the National Parliament rejects the initiative, it shall submit it to a vote of the People; the People shall decide whether the initiative should be adopted. If they vote in favour, the National Parliament shall draft the corresponding bill.

5 An initiative in the form of a specific draft shall be submitted to the vote of the People and the Regions. The National Parliament shall recommend whether the initiative should be adopted or rejected. It may submit a counter-proposal to the initiative.

Art. 139a…

Art. 139b Procedure applicable to an initiative and counter-proposal

1 The People vote on the initiative and the counter-proposal at the same time.

2 The People may vote in favour of both proposals. In response to the third question, they may indicate the proposal that they prefer if both are accepted.

3 If in response to the third question one proposal to amend the Constitution receives more votes from the People and the other more votes from the Regions, the proposal that comes into force is that which achieves the higher sum if the percentage of votes of the People and the percentage of votes of the Regions in the third question are added together.

Art. 140 Mandatory referendum

1 The following must be put to the vote of the People and the Regions:
a. amendments to the Constitution;
b. accession to organisations for collective security or to supranational communities;
c. emergency national acts that are not based on a provision of the Constitution and whose term of validity exceeds one year; such national acts must be put to the vote within one year of being passed by the National Parliament.

2 The following are submitted to a vote of the People:
a. popular initiatives for a complete revision of the Constitution;
b. popular initiatives for a partial revision of the Constitution in the form of a general proposal that have been rejected by the National Parliament;
c. the question of whether a complete revision of the Constitution should be carried out, in the event that there is disagreement between the Parliamentarians.

Art. 141 Optional referendum

1 If within 100 days of the official publication of the enactment any 700,000 persons eligible to vote or any of the Regions request it, the following shall be submitted to a vote of the People:
a. national acts;
b. emergency national acts whose term of validity exceeds one year;
c. national decrees, provided the Constitution or an act so requires;
d. international treaties that:
1. are of unlimited duration and may not be terminated;
2. provide for accession to an international organisation;
3. contain important legislative provisions or whose implementation requires the enactment of national legislation.

2 ...

Art. 141 Implementation of international treaties

1 If the decision on ratification of an international treaty is subject to a mandatory referendum, the National Parliament may incorporate in the decision on ratification the amendments to the Constitution that provide for the implementation of the treaty.

2 If the decision on ratification of an international treaty is subject to an optional referendum, the National Parliament may incorporate in the decision on ratification the amendments to the law that provide for the implementation of the treaty.

Art. 142 Required majorities

1 Proposals that are submitted to the vote of the People are accepted if a majority of those who vote approve them.

2 Proposals that are submitted to the vote of the People and Regions are accepted if a majority of those who vote and a majority of the Regions approve them.

3 The result of a popular vote in a Region determines the vote of the Region.


NOW, certainly there are parts of the 1987 Philippine Constitution’s Article XVII, Section 2, that could be incorporated here, where they don’t conflict with what is here.
     Obviously, also, Republic Act 6735 will henceforth need some rewriting to adapt it to the above constitutional requirements and terms, and perhaps even partly incorporated here.
     But, there you go. That’s my piece. I’ve been transparent with my Cha-Cha dreams, and, now, how I wish the Aquino government will likewise publish somewhere its proposals for its Cha-Cha dreams in their transparent totality. . . .
     But, of course, I’d totally understand if this now-only-arguably-“liberal” Aquino administration faction opts to continue to be secretive about it. I would totally, totally understand if it does. Wouldn’t you? [END]





Tuesday, June 17, 2014

Of Someone Saying There's A Hole In BIR Commissioner Kim Henares' Bread




photo borrowed from http://kensanph.wordpress.com/2013/12/18/an-open-letter-to-bir-comm-kim-henares/comment-page-1/


I.
AT THE START of President Benigno Aquino III’s term, it was made clear through not a few media reports that the Aquino administration, supposedly social liberal and therefore likely intent on a flurry of social spending, would be serious about its tax collection and, through several charges soon filed in the courts (including a later famous lien against a world-renowned boxer-congressman), would be just as serious about its campaign against tax evasion, willful and not.
     Newly-appointed to the Bureau of Internal Revenue helm, Commissioner Kim Henares was portrayed in the media as that no-nonsense lady collector with both a hardened legal view and a Mona Lisa smile, concerned about equality in implementing the (equitable) tax laws of the land. Her image got so familiar that workers looking at their pay slips every fifteenth and thirtieth of the month would refer to her as “Sakim (Tagalog for greedy) Henares”, while professionals (most recently doctors) who were asked through a TV and newspaper campaign to file the right amount of taxes due society called her “Kim Henarrassment”. Meanwhile, those who understood the government’s wisdom about equality applauded her, according her almost-personal campaign the same height of appreciation they once gave the President’s “no to the elite’s wang-wangs on our roads” campaign. Social liberal, too, the BIR’s stance under the Aquino government has seemed, which Aquino stance also showed in the government’s earlier and ongoing series of investigations on fund embezzlement and/or inappropriate appropriations involving past or opposition government personalities.
     Social liberal and for equality? Perhaps.
     Well, not so fast, says a BIR examiner who recently filed a case with the Ombudsman against Henares and her deputy. In fact, the examiner says Henares’ and the government’s media image promoting equality in taxation has proved to be bogus from the git-go. He should know, he says, he’s looked the bogus tiger in the eye. The current government has been as selective in its hardened BIR stance, he says, in the same way it has been perceived as selective when it displayed a soft bearing towards the multi-million peso bonuses for SSS executives that irked SSS members dissatisfied with SSS service or when it defended the valid role of congress people in the allocation of executive DAP funds (as if, for a long hour there, it forgot social liberalism’s disdain for pork barrel politics).
     On May 5 of this year, Representative Magtanggol Gunigundo I (Lakas Kampi CMD-Valenzuela City) made a privilege speech treating of the examiner’s data. According to the examiner, the congressman’s speech “emphasized fair and reasonable enforcement and implementation of revenue laws” and stated that “taxation is in good exercise when it is equitable; i.e., if burden falls on those better able to pay and not on the poor.” The congressional record on this speech further shows that the congressman censured the present leadership of Commissioner Kim Henares for promulgating stiff tax rules on marginalized income earners (farmers, small retail store owners, and tricycle operators)—rules which he says fail to take note of MIEs’ tax exemption by the Barangay Micro-Business Enterprises Law—while appearing to have allowed a large taxpayer, Golden Donuts (licensee and sub-franchiser of Dunkin’ Donuts), to get away with non-payment of P1.56 billion in tax arrears for the year 2007 alone.
     In news reports (read this one here, for instance), Henares said she actually ordered a re-investigation that proved the examiner’s findings to be bloated. The examiner, Othello Dalanon (whose friend E- asked me to allow an interview with the man and accommodate a longer treatment of the case on the blogosphere), maintains that the re-assessment that Henares ordered actually still came up with a fat unpaid amount, the very same P1.56 billion he mentions as the amount that the social liberal government of President Aquino (and its social spending needs), and the people, have been grossly robbed of.
     Dalanon’s beef with Henares’ inaction towards the doughnut company, which was actually the beef the Lakas Kampi CMD representative from Valenzuela was citing in his privilege speech, is actually a tax case that goes back to 2007, concerning Golden Donuts, Inc. (GDI), the exclusive Philippine franchisee of the global brand “Dunkin’ Donuts”, which was “slapped with a tax assessment amounting to P1.56 billion, including increments, that arose from irregularities discovered and documented by me,” said the examiner. Dalanon only ran into this because he was assigned to the case in his official capacity as a former BIR examiner. It was only when an alleged inaction on the case by the current leadership became too obvious, way after the same (but more understandable?) inaction by the Arroyo-era leadership in the bureau, that Dalanon saw the need to promptly resign, purportedly to protect his person’s position from whatever action the bureau may now want to inflict on it. It must also be noted that Dalanon, as per his claim, first wrote to the Office of the President and then saw ruling-party members before he decided to show opposition figures like Rep. Gunigundo his data. It was only Gunigundo who showed interest in his case, while Senator Sonny Angara seemed more interested in Dalanon's views about a lowered VAT rate (Dalanon is also a campaigner for a lowered VAT).
     In his report to the government personalities he approached, Dalanon decried the commissioner’s “intentional failure” to either 1) enforce collection of the said assessment “despite the ensuing finality of the same,” or 2) sue the doughnut company for tax evasion (for under-declaring revenues in its tax return). Dalanon then filed a case against Henares and her deputy with the Office of the Ombudsman.
     Here is Dalanon’s story:

According to him, his assessment has remained undisturbed after rigid scrutiny by high-ranking tax experts in the district involved (RDO 41, Mandaluyong) and from various regional levels of the bureau. The assessment has been covered by a Formal Letter of Demand (FLD) and by Final Assessment Notices (FANs), all bearing Demand No. 41-B072-07 and all dated October 29, 2010, issued and approved by the Regional Director of Revenue Region No. 7, Quezon City. According to Dalanon, his assessment findings are merely the resultant of the following manifestations of irregularities:

1.    GDI has two (2) sets of books of accounts. One is the duly-registered hardbound computer-generated books of accounts which were the bases of his assessment. The other is the unregistered “manually-posted from original books of accounts” records which GDI claimed to be the bases of its Trial Balance for Financial Statements and Income Tax Return Purposes.

Dalanon notes that keeping two (2) or more sets of books of accounts is already a fraudulent act or criminal tax violation.

2.    GDI reflected false information in the company’s tax return. The CD and duly-registered books of accounts (hardbound computer-generated), as duly validated by Dalanon, showed a net taxable income amounting to P135.2 million while the Annual Income Tax Return (AITR) reflected a net loss of P44.9 million.

Again, Dalanon notes that reflecting false information on one’s tax return is already a fraudulent act or criminal tax violation.

3.    GDI’s CD and duly-registered books showed higher sales than those reflected in the company’s tax return. Sales per CD and duly-registered books was P1.928 billion while the amount reflected in the AITR was P1.031 billion, or a substantial under-declaration amounting to P897 million.

Dalanon points to the Supreme Court ruling in the case of Paper Industries Corporation of the Philippines vs. Court of Appeals, et al., 250 SCRA 434, which states that “where the books of accounts reflected a sales or receipts higher than that reflected in the return, the books of accounts should prevail. This is so, because the books of accounts are kept by the taxpayer and are prepared under its control and supervision; and they reflected what may be deemed to be admissions against interest.” The representations made by GDI in the duly-registered hardbound computer-generated books of accounts as presented by it to the BIR for audit and examination, says Dalanon, "amounted to admissions against interest which it cannot disown and change at its convenience or pleasure."

Again, Dalanon emphasizes that substantial under-declaration of sales or revenues in a company’s tax return is already a fraudulent act or criminal tax violation.

4.    Other independent relevant documents, such as, but not limited to, Franchise Agreement, Technical Service Agreement, Final Withholding Tax Remittance Returns, and VAT returns, submitted by GDI to the Bureau for audit, further revealed that GDI’s sales topped P2.366 billion while the amount recorded in its duly-registered books was just P1.928 billion; or a substantial unrecorded and undeclared sales amounting to P438 million.

Again, Dalanon emphasizes that the non-recording of sales in the duly-registered books and consequent non-declaration of the same in the AITR already constitute fraudulent acts or criminal tax violations.

     It was these irregularities, and other discrepancies enumerated in his memorandum and audit reports, that culminated in the company’s aforesaid tax deficit, says Dalanon.
     Dalanon claims that he personally reported the case to Commissioner Henares and recommended to her the criminal prosecution for tax evasion of the company under the much-vaunted RATE (Run After Tax Evaders) program of the bureau and the Aquino government. But “despite sufficient mathematical computations duly supported by pieces of physical evidence to demonstrate the omissions,” he says Henares “intentionally did not pursue a tax evasion case against the company,” because the said company’s stockholder-secretary, Ms. Marixi Prieto, who also happens to be the president of the Philippine Daily Inquirer (PDI), supposedly talked to Henares and BIR Regional Director Nestor Valeroso on different occasions, both of whom then extended leniency to the taxpayer in view of Ms. Prieto’s closeness to President Benigno Aquino III, this ostensibly according to Deputy Commissioner Estela Sales. [Prieto is also the mother of the wife of Benguet Corporation president and CEO Philip Romualdez, who is son to the former Ambassador to the US, China and Saudi Arabia and brother of Imelda Marcos, Benjamin "Kokoy" Romualdez; Philip is also brother to Rep. Ferdinand Martin Romualdez].
     In a broadcast interview with Henares by GMA 7′s news reporter Susan Enriquez on February 28, 2014, Henares publicly declared Dalanon’s assessment as faulty and told Enriquez that she had ordered two re-investigations that found this to be true (she claimed that the re-investigations arrived at identical results, and both had the same conclusion: Dalanon’s assessment was inaccurate). Dalanon, however, says he was not given the chance to rebut the commissioner’s testimony.
     Fortunately for him, the March 4, 2014 Manila Times column of Emeterio Sd. Perez titled “Why is Henares not pursuing a tax evasion case vs. donut seller? did “take up the cudgel for Othello Dalanon.” The column opines that Henares was entirely wrong” in publicly declaring Dalanon’s assessment incorrect, “instead of waiting for GDI to question Dalanon’s findings before the Court of Tax Appeals.”
     “'Pinaimbestigahan natin ng ilang beses, at sa mga imbestigasyon na yan, lumalabas na hindi naman tama yung assessment ni Mr. Othello [Dalanon]', Henares said.” – this was from the report written by Elizabeth Marcelo/JDS, GMA News
     Well, Dalanon himself has questions to ask:
     Why was his assessment not given a chance by the commissioner to stand in a judicial scrutiny before it was publicly announced as flawed?
     If his assessment was wrong, what was the correct assessment for Henares? Why did she not clearly disclose the same in public? Where are the reports of those re-investigations that showed identical results? And how much was collected for the government’s coffer? Less than P4 million?—he further asks.
     Is the commissioner’s act not an expression of “tendering” for GDI, a potential tax evader company?
     Dalanon wanted to know the answers then, he still would like to know the answers now.
     And while the BIR promulgates its tax rules on marginalized income earners (MIEs) and has been quite active in “hastily” prosecuting other alleged tax cheats (the case against Zoren Legaspi, for instance), she seems to fear or appears to be coddling Dunkin’ Donuts’ local seller, Dalanon says.

II.
Dalanon’s assessment against Golden Donuts, Inc. obtained finality.
     Commissioner Henares’s statement claiming that the authority to decide and declare finality of a certain assessment is a function vested by law upon the Commissioner of Internal Revenue is wrong, Dalanon says. Though not a lawyer, he says he knows that only the law can determine the finality of an assessment.
     He cites Section 228 of the 1997 National Internal Revenue Code (1997 NIRC), as amended, in relation to Revenue Regulations (RR) No. 12-99 as amended by RR No. 18-2013 and as clarified under Revenue Memorandum Circular No. 11-2014, which provides that assessment becomes final, executory and demandable in the following instances:

1.    If taxpayer failed to file a valid protest against the Formal Letter of Demand (FLD) and Final Assessment Notice (FAN) within thirty (30) days from date of receipt of the FLD/FAN.

The taxpayer may file a protest against the FLD/FAN through a request for reconsideration or re-investigation. He must state the facts, the applicable laws, rules and regulations or jurisprudence on which his protest is based; otherwise, the protest shall be considered void and without force and effect. If taxpayer failed to file a valid protest, assessment shall become final, executory and demandable.

On November 30, 2010, GDI filed its letter of protest vs. the FLD/FAN. However, Dalanon says it did not state the facts, the applicable laws, rules and regulations or jurisprudence on which its protest was based. The protest merely stated “adopt in toto the arguments, explanation and supporting documents as set forth in our letter protest to the PAN (Preliminary Assessment Notice) dated October 14, 2010.It also failed to specifically state whether the protest was a plea for reconsideration or re-investigation. It merely requested the cancellation and withdrawal of the assessment on the grounds that the same had no factual and legal bases.

Dalanon says that the Court of Tax Appeals, in the case of Security Bank Corporation vs. Commissioner of Internal Revenue (CTA Case No. 6564, November 28, 2006), emphasized that “a protest to the preliminary assessment notice is not the same as the protest required to be filed as an answer to the final assessment notice. In fact, a preliminary assessment notice may or may not even be protested to by the taxpayer, and the fact of non-protest shall not in any way make the preliminary assessment notice final and un-appealable. What is clear from Section 319-A of the Tax Code of 1977, as amended, is that failure on the part of the taxpayer to protest or reply to a preliminary assessment notice paves the way for the issuance of a final assessment notice. However, evident under the said Section is that failure on the part of the taxpayer to file a valid administrative protest through a request for reconsideration or reinvestigation on the final assessment notice, shall result in the finality of the said FAN.” Underscoring supplied by Dalanon.

Again, what the law demands is a valid protest against the final assessment notice; otherwise, the assessment becomes final, executory and demandable.

2.    If the taxpayer failed to submit all relevant documents in support of his protest within sixty (60) days from date of filing of his letter of protest.

As mentioned above, it was on November 30, 2010 when GDI filed its letter of protest against the FLD/FAN. The 60-day period within which it could submit all relevant documents in support of its protest ended on January 29, 2011. It submitted the documents only on March 24, 2011. When it submitted the required documents in support of its protest, 114 days after the date of the filing of its protest had elapsed, not to mention the fact that said documents contained the same information as that already contained in its letter dated November 27, 2009 which were already taken up in the Adjusted Final Audit Findings sent to GDI covered by the Post-Reporting Notice dated July 19, 2010 which became the bases of the PAN and FLD/FANs.

     Furthermore, Dalanon says that notwithstanding the ensuing finality of his assessment, Commissioner Henares “intentionally failed” to enforce collection, and instead ordered two re-investigations.
     “…nang aming tanungin si Henares x x x nagreklamo daw kasi ang kinatawan ng GDI na mali ang assessment sa kanila ni Dalanon kaya pinareview niya ito ng dalawang beses. Ang resulta, mali nga raw ang ginawang assessment ni Dalanon” – that’s Susan Enriquez reporting for GMA News.
     Again, as per report of Elizabeth Marcelo/JDS, GMA News: “Pinaimbestigahan natin ng ilang beses, at sa mga imbestigasyon na yan, lumalabas na hindi naman tama yung assessment ni Mr. Othello [Dalanon], Henares said.”
     “Is there a law that authorizes the commissioner to order two re-investigations of a due and demandable assessment?—Dalanon asks.
     Clearly, he says, “while the law grants the taxpayer the opportunity to protest the FLD/FAN, such must be a valid protest, otherwise the assessment becomes final, executory and demandable, and the right of the government to collect the deficiency tax becomes absolute and, thus, precludes the taxpayer from questioning the correctness of the assessment and from raising any justification or defense that would pave the way for a re-investigation.”

III.
Again, here are the arguments:
     To Dalanon this is Issue One—GDI’s CD and duly-registered books of accounts (hardbound computer-generated) showed sales amounting to P1.928 billion, while its AITR showed only P1.031 billion, or a substantial under-declaration amounting to P897 million.
     GDI’s contentions go thus—the CD and duly-registered books of accounts (hardbound computer-generated) contained more than 2,500 errors posted in 84 accounts and, thus, should not be the bases for Dalanon’s assessment. Furthermore, we have “manually-posted from original books of accounts” records which were the bases of our Trial Balance for Financial Statements and Income Tax Return Purposes.
     Dalanon’s points include the following:

1.    “GDI’s CD and duly-registered books of accounts (hardbound computer-generated) already contained GDI’s external auditors’ adjustments. It means that said financial records were already audited by GDI’s external auditors.”

2.    “The differences or discrepancies between the sales accounts reflected in the CD and duly-registered books of accounts on one hand and the AITR on the other were not reflected by GDI’s external auditors as adjusting or correcting entries in the said financial records.”

3.    “With the more than 2,500 errors posted in 84 accounts contained in the said financial records as GDI claimed, it is unfeasible and amazing that GDI—which belongs to the high-profile business in the Philippine industry, with its highly competent accounting and auditing workforce, and with the supervisors, the tax managers, the external auditors, and the reputable independent public auditors that GDI hired to conduct quarterly reviews of its financial records—would not notice such remarkable and significant errors.”

4.    “The 84 accounts reflected in financial records that allegedly contained errors are all nominal accounts (i.e., income and expense accounts). GDI did not claim that the real accounts (i.e., balance sheet) reflected in the said financial records contained errors. Thus, let us determine sales based on a real account that is associated with sales account.

“VAT Payable is a real account that is associated with sales account. Using this account, sales can be determined as follows:

VAT Payable account total credit per duly-registered books
P      227,263,254.33
Divide by VAT rate
                        12%
Sales per duly-registered books with VAT components
1,893,860,452.75
Add: Sales per General Journal without VAT components
         34,511,326.03
Sales based on VAT Payable account
P   1,928,371,778.78

“It may be noted that even if sales is computed based on VAT Payable account, it would result in the amount of P1.928 billion. This proves that sales reflected per CD and duly-registered books do not contain errors, contrary to GDI’s claim.”

5.    “According to the Supreme Court, the books of accounts prevail over the return when they reflect higher sales, because they are kept and prepared under control and supervision by the taxpayer and, thus, are admissions against interest.


Then here’s Issue Two—GDI’s sales topped P2.366 billion based on other independent relevant documents; but the amount recorded in the CD and duly-registered books was only P1.928 billion, or a substantial unrecorded and undeclared sales amounting to P438 million.
     Here are the facts supplied by Dalanon—GDI is the exclusive Philippine franchisee of Dunkin’ Donuts of America, Inc. (DDA). As such, it grants sub-franchise rights to various domestic entities nationwide. It has 642 outlets (shops) all over the country, 54 of which are directly-owned by GDI, with the remaining 588 owned by the 35 sub-franchisees under GDI’s supervision. GDI maintains a shop: central warehouse (commissary) from where all its sub-franchisees purchase on a COD basis all products, ingredients, supplies, commodity, and merchandise for their stores.
     According to Dalanon, the Franchise Agreement between GDI and DDA states, among other things, that the former shall remit to the latter a franchise fee equivalent to 1% of all sales of each shop, whether directly operated by GDI or sub-licensed to others. GDI shall be responsible for the remittance of all fees due DDA. Well, for year 2007, the franchise fee per GDI’s CD and duly-registered books (hardbound computer-generated) was P23.668 million. Said amount was claimed by GDI as its own expense.
     On the basis of these information, Dalanon computed the unrecorded and undeclared sales amounting to P438 million as follows:

Franchise fee per CD, duly-registered books and FS
P      23,668,908.00
Divide by franchise fee rate
                        1%
GDI’s grossed-up sales (or should be GDI’s total sales)
2,366,890,800.00
Less: Sales per CD and duly-registered books
   1,928,770,398.68
Unrecorded and undeclared sales
P    438,120,401.32

     Now, take note, Dalanon says, that the method of validation he used in determining GDI’s sales was already upheld by the Court of Tax Appeals in the case of Asia Coal Corporation v. Commissioner of Internal Revenue, CTA Case No. 6803, February 13, 2008, when it stated: “the commissioner may utilize any kind of documents x x x to determine the correct sales...”
     Dalanon says he presented several mathematical computations duly supported by documentary evidence to corroborate the above computed, unrecorded, and undeclared sales.
     But here are GDI’s contentions—the Franchise Fee amounting to P23,668,908.00 is equivalent to 1% of our “system-wide sales” which refers to sales generated by our directly-owned outlets and those of our sub-franchisees’, excluding central warehouse’s sales. Also, our central warehouse’s (commissary’s) sales of products to the sub-franchisees are not covered by the 1% franchise fee.
     But let us first determine the shops which GDI directly and indirectly operates, Dalanon says.
     As mentioned above, GDI has 642 outlets all over the country, 54 of which are directly-owned by the company, with the remaining 588 owned by the 35 sub-franchisees under GDI’s supervision. Again, GDI maintains a shop: a central warehouse or commissary from where all its sub-franchisees purchase all their products.
     So, GDI’s directly-owned shops would include: (1) the central warehouse or commissary; and (2) the 54 directly-owned outlets. Its indirectly-owned shops are the 588 outlets owned by the 35 sub-franchisees which are merely under GDI’s supervision.
     Now to Dalanon’s stand:

1.    “The franchise fee amounting to P23.668 million is equivalent to 1% of GDI’s sales alone, such as sales generated by the central warehouse and the 54 directly-owned outlets.”

2.    “There is no specific condition in the License Agreement between GDI and DDA that says sales of central warehouse to the sub-franchisees are not covered by the 1% franchise fee.”

3.    “Is not GDI’s central warehouse a shop which it also operates? Are not the purchases by the sub-franchisees from the central warehouse also sales of GDI?”

4.    “Why did GDI claim the entire amount of P23.668 million as its own expense? The fact that it claimed the entire amount as its expense indicates that the same is equivalent to 1% of GDI’s sales alone.”

5.    “Why did GDI claim the whole amount of P2,840,123.69 representing VAT (Input Tax) on Franchise Fee as tax credit against Output Tax? The fact that GDI claimed said amount as tax credit against its output tax indicates that the franchise fee amounting to P23.668 million pertains to 1% of GDI’s sales alone.”

6.    “GDI is only responsible for the remittance of the franchise fee supposed to be remitted by its sub-franchisees to DDA. Instead of the sub-franchisees remitting directly to DDA, the amount is coursed through GDI and would not, in all aspect, form part of GDI’s expense.”

     Again, according to Dalanon, there are several mathematical computations duly supported by pieces of documentary evidence that would prove his findings.
     “So, where did I err when my audit findings were based on facts taken from financial records which GDI itself submitted and presented to the bureau for audit and examination? Furthermore, I clearly cited the applicable laws, rules and regulations or jurisprudence on which my findings were based,” Dalanon asks.
     He adds: “Why is BIR Commissioner Kim S. Jacinto-Henares, whom I expected to support my audit findings, which remained undisturbed after stiff scrutiny by high-ranking tax experts of the bureau, lawyering for GDI? Is this the straight path policy, the “daang matuwid,” of the Commissioner?”
     To Dalanon, the 2007 deficiency tax assessment against GDI amounting to P1,564,426,808.08 is final, executory, and demandable and already legally belongs to the Filipino people.
     On March 17, 2014, Othello Dalanon filed a formal complaint before the Office of the Ombudsman against Commissioner Henares and Deputy Commissioner Sales for grave misconduct, gross neglect of duty, and violation of Section 3(e) and (f) of Republic Act No. 3019, Section 269 paragraphs “e” and “h” of the National Internal Revenue Code, and other special laws.
     On the same date, he sent a letter of appeal to His Excellency President Benigno Simeon C. Aquino III, requesting the President’s office to enjoin their subordinates in the BIR to collect the subject of his (Dalanon’s) deficiency tax assessment as it already legally belongs to the Filipino people.
     Dalanon, an ex-seminarian, has also been reverently appealing to the Filipino people’s devotion to God and country to help bring that request to the President’s attention, which might then result in his directing BIR Commissioner Kim S. Jacinto-Henares to enforce the collection of the subject arrears. . . . [JSV]


(This blog column would welcome the Commissioner’s [or GDI's] side of the story.)



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POSTSCRIPT I: Here are additional figures –

Details of sales per CD and duly-registered books (hardbound computer-generated)—

Products
Shops/outlets
Central Warehouse
Total
Bakery
P       4,617,829.34
P                    0.00
P       4,617,829.34
Beverages
14,808,274.83
0.00
14,808,274.83
Donuts
399,306,130.23
0.00
399,306,130.23
Hot chocolates
12,124,500.69
0.00
12,124,500.69
Non-food
2,970,373.42
0.00
2,970,373.42
Others
23,214,373.10
0.00
23,214,373.10
Punch
1,079,941.12
0.00
1,079,941.12
Savory
20,259,716.75
0.00
20,259,716.75
Soft drinks
12,059,320.37
0.00
12,059,320.37
Coffee
31,239,473.89
0.00
31,239,473.89
Coffee beans
0.00
37,731,973.04
37,731,973.04
Drinks mixes
0.00
25,620,464.28
25,620,464.28
Flour mixes
0.00
1,040,179,534.53
1,040,179,534.53
Hot chocolate mix
0.00
24,467,817.55
24,467,817.55
Others
0.00
93,539,558.52
93,539,558.52
Packaging materials
0.00
179,439,948.13
179,439,948.13
Punch mixes
0.00
5,334,341.93
5,334,341.93
T-shirts
                      0.00
            776,826.96
           776,826.96
Totals
P    521,679,933.74
P 1,407,090,464.94
P1,928,770,398.68
 

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POSTSCRIPT II:

After reading the above blog, ePIRMA committee member Dexter BriƱas Amoroso messaged me to write the following:

"Ka Jojo, Mr Dalanon's case against Kim Henares and Golden Donuts is similar to the late Atty. Mar Gen's case. Remember the issue against Gloria Macapagal-Arroyo I told you before involving the owner of MegaWorld, Mr. Andrew Tan? That info actually came from Atty. Mar Gen. Ang natatandaan kong sinabi niya, ni Atty. Mar Gen, campaign financier ni Noynoy si Mr. Tan kaya hindi sinuportahan ng Noynoy administration ang kaso niya against GMA dahil sasabit daw si Mr. Tan. Hawak daw ni Atty. Mar Gen noon ang evidence (documents) na magpapatunay sa case niya against GMA and Tan, pero hindi na pinansin nung makita ang pangalan ni Tan.

"Si Atty. Mar Gen (Atty. Luis Mario General) was a former Napolcom Commissioner and Regional Director ng LTO sa Bicol.

"It was when I asked Atty. Mar Gen about campaign contributors that he messaged me about this confidential information. Below is the screen shot of that message where Atty. Mar Gen made the statement. Note that he writes 'Please do not share this info to anyone' and I promised to him not to share the info.

"But if this story is not put out there, nobody will know, and we who had access to that bit of information (albeit not the documents) would be party to the hiding. Wouldn't that put us in the same position as the Aquino government?

"I hope the family of Atty. Mar Gen would understand if they happen to read this comment of mine under your blog, if you'd care to place it as an addendum or postscript (since Blogger does not allow image upload in its comment box).

"Much thanks and keep it up, Dexter"