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 Briñas 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"

Another Funny Thing Filipino Women Need to Know About Their Clever SSS

FILIPINO women living or working in Makati need not know anything more about either how rude that medical-benefit-claim-form lady assessor/clerk at the Social Security System Makati Office is or particularly how she impatiently treats everyone who approaches her desk like the teacher’s most-dreaded stupid pupil come again to ask another stupid question, bless her cursed soul. Should you have the misfortune of needing to claim a medical benefit, your day is sure to get ruined seeing her and her ways, to be saved only by the niceness of the SSS doctor over at desk 2. Oh, no need to tell this, really, because, after all, 99% of us already have ample understanding of how deep the shortage is in government service of people with people skills.

     In fact, just a few days ago, I was at the National Statistics Office at East Avenue in Quezon City to witness a security guard, not a regular staff but a security guard, directing the citizens falling in line in the hall with instructions coursed through a megaphone that went like, “Ano ba naman kayo? Ang nandito sa pila na ‘to ay yung buntis na, hindi yung magpapabuntis pa lang. Yung wala pang form, dun muna ninyo gawin sa kabilang pila, ha. Magpabuntis muna kayo roon!” Witty with a drunkard’s metaphors and humor, eh? But decidedly inappropriate humor in a government service institution, my sir, wouldn’t you agree?
     A rarity, perhaps, then, would be an NSO records supervisor named Beth Galicad who called a peer on the phone to say, “meron tayong client dito na si Mr. …” Wow. While the unworthy security guard looked upon his fellow citizens falling in line outside as the unintelligent mass burden of our republic (not as the very taxpayers paying his salary), Ms. Galicad regarded me, an ordinary citizen with a lost record, as a “client.” How cool is that?

NOPE. This is not to enumerate further shortcomings and personnel shortchanges in government service institutions, for—like I said—I’m sure everyone has his own long list and book of anecdotes that regularly tell us to feel sorry about our wages’ tax deductions every fifteen days, never mind feeling sorry for our country continually being governed by the political elite un-eager to rid us of our feudal culture composed of lordly landlords on this side and ordinary citizens in beggary being lorded over by the landlords’ servants (civil servants, mostly) on that side.
     Instead, this essay is really just seeking to follow up on my wife’s wish for ample information on something that perhaps my blog site could accommodate, which I did promptly offer, information specifically addressed to other Filipino women who might benefit from the knowledge about that medical benefit called “disability”; not so we can sour-grape on her disqualification with her claim, but so we can spread the very knowledge, believe me or not, the knowledge—by the way—the SSS says certainly cannot be on their website as “not everything is there” and “we really don’t put everything there.” [Well, yes, of course, the appropriate answer might perhaps be “we will inform our website managers to put that detail online,” but, c’mon, appropriateness, people—as we probably all know by now—, is not a priority in government service. Well, perhaps not until we get rid of an elite-leaning culture that might then veer away from looking at service institutions as just some people’s milking cows, moving on towards looking at them as truly service institutions. After all, whatever happened to the Marxist influence on the social security concept? Aha! The answer to that question might be obvious to some of us who see everything happening in government as an illness needing a cure, or a corrupt file needing a fix, though often accepted as a sorry state by most who’ve given up on the possibility of seeing any fix. No appropriate line to be expected by the ears, then, no worthy assessor on that many a clerk’s desk, no appropriate answers to very specific questions, except for a rarity that one may be lucky to meet in his lifetime under any Philippine government’s color-coded sun.]

THE simple information my wife really just wanted added to the SSS website was this: … well, okay, maybe I ought to offer a backgrounder first.
     You see, my wife just had a TAH-BSO, or Total Abdominal Hysterectomy with Bilateral Salpingo-Oophorectomy. And, in case you don’t know yet, a TAH-BSO qualifies an SSS member to a disability benefit. Many a woman member has, in fact, received an SSS disability pension even from a simple hysterectomy.
     The inclusion of these operations as disabilities in the SSS’ new disability benefits program is culled from the World Health Organization’s expanded definition of disability, viz., as any “restriction or lack (resulting from impairment) of ability to perform an activity in the manner or within the range considered normal for a human being.” According to the SSS, impairment has been further defined by the WHO as any loss or abnormality of psychological, physiological, or anatomical structure or function. Take note of that!
     The aim of the new disability benefits program, says the SSS, is purportedly “to ensure that the right cash benefit for disability is paid to truly deserving members.” And who would be those truly deserving? Supposedly, it adopts the International Statistical Classifications of Diseases and Related Health problems Codes (ICD-10) [check out that list here: http://apps.who.int/classifications/icd10/browse/2010/en].
     The SSS further says that the member with 20% medical impairment is already qualified for functional assessment. Some of the permanent partial disabilities include loss of one thumb, or one index finger, or one middle finger, or one ring finger, or one little finger, or one big toe, among a number more in the list. Meanwhile, apart from complete loss of sight of both eyes and such similarly permanent total disabilities, some cases may actually be classified as belonging to this latter category by the determination and approval of the SSS. Well, those determinations may remain privy to no one other than those who make them, as the SSS does not—cannot—prefer not to?—put everything on its website.

           

AND so now we go back to the TAH-BSO, or the simple hysterectomy, for that matter, both of which, by the way, cannot be categorized with losing a pinky, for all intents and purposes.

     What, according to the SSS, would disqualify one from claiming medical benefits after undergoing one of these above operations?
     Well, guess what. Age, that’s what! The SSS has determined, by some law I have yet to see, that only members 44 years old and below can avail of the benefit by one of those –tomies. [We did not ask if one can claim a disability benefit from losing a pinky at age 46]. The SSS law I have yet to see supposedly has this rationale or interpretation of the WHO expanded definition: we at the SSS believe, or that law you have yet to read believes, that the WHO’s definition is implying the fact that women who have undergone one of those above –tomies cannot anymore bear children. By that inability, the inability to bear children, we have accepted the inclusion of these –tomies as resulting in a disability. The age limitation was arrived at allegedly after talking to a majority of OB-Gyns regarding the average birthing age of women. [I didn’t ask if the SSS ever asked surgeons about the average age of typists who cannot afford to lose their pinky—can they still lose it at age 46 and claim benefits?] Never mind, too, that the SSS might accept the fact that there have been a number of women in their 50s who have had their menopause delayed and had babies at that age period, but the law is the law, the SSS says, talking like a lawyer instead of a medical-benefits provider, except for the fact that it couldn’t give us the Republic Act number of that law we have yet to see.
     Never mind, likewise, the fact that many doctors who advise a hysterectomy procedure with additional ovarian removal ask for the patient’s approval first, and once the approval is gained often advise the patient in turn to keep one of the ovaries if “possible”. True, some doctors, especially oncologists looking at a patient with a family history of oncologic cases, may advise a drastic TAH-BSO as an option for a mere case of adenomyosis, as for instance if the patient does not have the financial capacity to get a later oophorectomy should that be needed in the future.
     The reason for this is really simple, which simplicity may have escaped the SSS and some legislators. (But not so simple if you’d be seeking an opinion on ovary function from the SSS doctor based in SSS Meycauyan, which opinion would really be hard to come by, the doctor being hard to catch—the SSS Meycauayan assessor agrees that one simply has to get a continuing leave of absence from one’s work to gamble on catching the doctor at his/her SSS Meycauayan room. Simpler, it would have been, if the first clerk already had knowledge of the fact that you can actually “file anywhere”; complex it is for members to fall in line with others seeking a conference with the branch manager just to get that simple information.)
     The simple reason why many doctors try not to remove both ovaries, as much as “possible,” is because the ovary is not just for producing eggs. In fact, the loss of both ovaries renders a woman at high risk of getting any one of the cardiovascular diseases as well as bone diseases. And while the ovaries are not the sole sources of estrogen, they are the prime sources of it, and you might have an idea of what may happen to a woman when her supply of estrogen is drastically diminished, albeit loss of ovaries does not have a uniform effect on all women. If you were a doctor not constrained by (subjective? interpretative?) SSS rulings, you would definitely know that the loss of both ovaries is already a great “restriction or lack (resulting from impairment) of ability to perform an activity in the manner or within the range considered normal for a human being.” Likewise, that it is already “loss or abnormality of psychological, physiological, or anatomical structure or function.” Go ahead and google it. Better yet, get more information about ovary function from your OB-Gyn, beyond just asking about the average age of women birthing. Conversely, don’t try to get more information on it from an SSS doctor constrained by a simple-headed law that I have yet to see.

     Oh, by the way, we ought to thank that oft-referenced law for supposedly enabling the WHO’s expanded definition of disability for SSS’ use, although I’d have to laugh that that same law virtually put limitations (almost as a sort of counter-measure) on the WHO expansion. Isn’t it funny? An expansion tries to expand, and its enabler tries to limit it. Isn’t it funny? Or should I say, aren’t we a clever people?
     After all, I found out at waiting areas that it’s not just me who’s been wondering why the SSS has placed all its friendly faces in Payment and some of its rude ones at Claims. So much for that Marxist influence on the social security concept. [X]

I had a dream

THAT MAN named Bong Revilla, whom the people elected in 2004 to be one among the senators of our republic, has now likewise accused Mar Roxas of being such a “Boy Pick-Up,” referencing of course how Roxas supposedly drove the car that picked up the senator (and another senator) for a meeting at the Pangarap House of Malacañang. In that house, the President supposedly waited for them so they could all talk about some pressing issue that required the senators’ physical presence. Revilla alleges that Boy Pick-Up was obviously part of the plan to bribe senators into voting “Guilty” that would then convict a Supreme Court Chief Justice in an impeachment trial. Malacañang, confirming the meeting did happen, denied the meeting had anything to do with the trial. Whatever.

     Only recently, Boy Pick-Up had been getting such a hammering from the media (local and international) and the citizenry for his supposed mishandling of the Typhoon Yolanda tragedy and crisis. At one point, on an Internet blog, his chance of becoming President in 2016 (a personal ambition he has flaunted for about a decade now) was illustrated by a headstone, on which this inscription was written: “Here lie the political ambitions of Manuel ‘Mar’ Roxas II … ‘A Casualty of Arrogance and Stupidity’”.

image borrowed from http://kensanph.wordpress.com/2013/12/13/r-i-p-mar-roxas/

     It doesn’t matter that a week ago the mayor of Tacloban City, Alfred Romualdez, and Roxas patched up frayed relations. Roxas’ media image as a defensive and ambitious hijo who can’t take responsibility for a grave mistake has perhaps now been embedded on many a citizen’s memory. Just as it didn’t help early in November last year when wife Korina Sanchez tried to correct the impressions of a CNN reporter named Anderson Cooper, an effort some say only pushed the Roxases deeper into the mud of popular abhorrence.

LAST DECEMBER 19, I hitched a ride to a meeting in Tagaytay City on the van of Mr. Jun Castillo of the Philippine Coconut Society. He was also on his way to that meeting I was to attend, of the anti-pork barrel politics and direct democracy-advocating alliance called ePIRMA. Somewhere near the C-5 Road, we picked up one of Jun’s friends, Mandy Manaloto, a public relations man who—as we climbed the Gen. Emilio Aguinaldo Highway towards the mountain city—broached the problematic of a Mar Roxas candidacy in the presidential race of 2016. He said, “It would be quite a challenge for a PR team to try to create a turnaround for Roxas, make him smell good again.”

     And how was he supposed to smell good again, from the perspective of the ruling party?

     Well, Malacañang would likely deny it, but to many it’s been obvious the President had been helping Roxas get the spotlight on what might be the latter’s media run to the 2016 contest. After all, it could have been part of the deal when Roxas gave way to the President in the Liberal Party’s bid for the presidential post in 2010, after the President became the more popular Liberal Party item of the sudden moment created by the death of his mother, the Philippines’ democracy icon, Corazon Aquino. Serendipitous death, some whispered, that witnessed an overwhelming support on the roadsides for the former President during a longish funeral parade, priming Benigno III to top the dynamic private surveys, a sudden popularity shaped by association rather than gargantuan merit, in that last year of years of corruption and impunity under Gloria Macapagal-Arroyo’s presidency.

      More than two years into his presidency, Benigno III appointed Roxas to the Department of Interior and Local Government (DILG) secretary portfolio. Roxas was Noynoy Aquino’s running mate (who lost) during the 2010 election, so he couldn’t be legally appointed to any post in the latter’s administration for a period of one year. In 2011, Aquino appointed Roxas to the Secretary of Transportation and Communications portfolio, some say because he couldn’t be given the coveted influential post of Secretary of the DILG as it was still in the hands of the popular former mayor, Jesse Robredo. A month after the death of Robredo on August 18, however, Roxas was finally given the post, presumably to give him stronger exposure through the local government-governing department, this after he got much of an earlier push when the President declared him the go-to man for the teams searching for Robredo’s body as well as the plane Robredo rode on that fell into the waters south of Masbate island. Roxas was given that nudge in his then-fresh capacity (a little more than a year) as Secretary of the DoTC, and perhaps for being the leading candidate for the coveted cabinet post. Indeed, once appointed to the DILG post that Robredo’s death left vacant, Roxas would become the logical civilian point man at the scene of any high-profile event. These future events would include the Zamboanga City crisis and—most prominently—the Typhoon Yolanda devastation of Leyte and Samar. Before the said typhoon made landfall, Roxas was already in Tacloban acting like an alternate mayor, telling people to batten their roofs with three-quarters-of-an-inch-in-diameter ropes tied to posts.

     Let us not go into the details of the criticism leveled against Roxas and his boss in their handling of the Typhoon Yolanda crisis from before the typhoon’s arrival up to the secretary’s replacement at the scene by a newly-appointed rehabilitation “czar” named Panfilo Lacson. Suffice to say that organizations as well as individuals were aghast at the series of faux pas by the Roxas and Aquino camps during the crisis, and albeit many of these were happily bloated by opposition groups, many were genuine complaints coming from organizations largely sympathetic to the Aquino government. Roxas and Aquino, all through the crisis wearing the yellow ribbons and yellow shirts of their party propaganda and still going through the photo-op habits of campaign tradition (distributing relief bags, raising babies), struck many a man and woman as sons of the political elite more concerned about their positions in situations than in the positions of the hungry and thirsty and frightened. Many asked whether the self-touted empathetic social liberalism in some/many of Aquino's policies was 100% personal or merely academic, and—if the latter—whether this social liberalism would every now and then also be accessible to the lobbying of self-serving people in his camp who can’t stomach the thought of being rid of their lump sum discretions.

     So, anyway, what Roxas and the fates will now try to surprise us with, beginning this day, for him to regain a stronghold in the hearts and minds of voters through to 2016 . . . would be something to note down as one of the most phenomenal comeback plans in the history of PR. For, as we speak, the fact is that Roxas remains, as Mr. Manaloto on the van put it, “quite a challenge” to the specialty of spin doctoring. Is a Roxas rebound possible, something that no Binay could beat? If not probable, is it at least possible? We’ll see.

ANYWAY, LAST weekend I woke up from my sleep, from what could be described as a strange dream.

     Call me self-serving, intent on shaping personas into what I wish they were. But in the dream, perhaps because it was my dream and not another critic’s, Mar Roxas was said to be pushing a bill that would “revolutionize local government and governance.” His words in the dream, not mine. In the dream, he was sitting with his PR people, brainstorming with them over what the current impression on his person is (“plastic son of the forever non-sympathetic elite and blindly ambitious,” answered a rather blunt member of the PR team). So he said, “How to reverse that? How do we create the impression that I have become the true champion of the people and have strayed a bit from the interests of my sugar industry and Pizza Hut neoliberal corporatism? How do we create the impression that my ambitions are not for myself and my big family but for the people?” Well, because this was a dream, one of his people took out a folder and waved it at the secretary.

    The secretary read what was in the folder. “This is it, then,” he said. “Turn on the machine and let this law roll!” They all made high-fives.
    And so, Mar Roxas deployed lobbyists to rally Congress people around his department’s bill, a bill that would introduce a special law that would govern participatory budgeting in local governments. Yes, you heard me. In the dream, Rep. Leni Robredo, who was one of the few who broached the idea, before she seemed to have been silenced at the height of the congressional effort at the Supreme Court to bring back Congress’ then-restrained pork barrel use, applauded Roxas in public, to the delight of Korina Sanchez.
    Interviewed by CNN again, Roxas announced an idea. Instead of following the Porto Alegre model, wherein districts elect delegate-individuals to participatory budget-planning sessions, Roxas had his lawyer write that barangay committees (or municipalities in the case of provincial budgets) can elect delegate organizations (NGOs and social enterprises and civic clubs) instead, to insert a degree of representative democracy into the Porto Alegre design’s more direct democracy. However, I’ll grant that although budgeting sessions can be limited to ten delegate-organizations, these delegate organizations might already amply come up with a budget program and prioritization plan each that they might have presented to their electorates (in presentations that should reflect the promises of their organization sponsors during the barangay election campaign), enough of a program each that might please even the defeated organizations. Defeated organizations would have to acquiesce to these programs and priorities, if they’ve been approved by the people, and elected municipal or city or provincial or national legislators themselves, while reserving the right to reason against the implementation of a plan here and there, would have to accept that this is the way by which the taxpayers can have their say on whether a hefty sum should be spent on a town coliseum carrying the mayor’s father’s name or on a mangrove development a provincial district’s citizens may have long been waiting for. Unless, of course, the Philippine participatory budgeting design is participatory only at the planning level, not anymore at the approval and implementation levels.
    And, indeed, Roxas, in the dream, recognized (as his thinking would) that not every people-instigated thought is right, and so allowed for a terminology that called the sessions in his bill “deliberations” instead of what they ought to be, public impositions (wherein the demos would truly have the kratos, thus true democracy). In these Roxasian “deliberations,” I feared in my dream that delegate organizations may end up “convinced” by the reasoning of resisting legislators and try to arrive at a compromise. Sure, they may continue to defy the reasoning of resisting legislators on behalf of the people, but up to what point? Whatever the outcome in every deliberative session is, the important thing here, I believed in my dream, is that there’d be the impression that the  culture of participatory budget deliberations has arrived, a culture the introduction of which every cause-oriented NGO or social enterprise might feel indebted to Roxas for and may hence be celebrating his name for his sponsorship of said idea. Further in the dream, Roxas explained: “Participatory budgeting is already a foot in the door leading to participatory auditing.” Well and good, then?
    Now, I don’t know how it came about, but as my dream narrative recognized the fact that there can be no story where there is no conflict, one reporter (was it Anderson Cooper still?) had to come into the picture, asking with a bit of suspicion, “So are these delegate organizations for the municipal or provincial participatory budgeting sessions going to turn out as fake ones, too, like with what Janet Lim-Napoles came up, presenting them as her NGOs?”
    “Impossible,” said Roxas in the dream, intent on speaking on behalf of a Robredo-instigated direct democracy to hide what his representative democracy would destroy. “The organizations would have to campaign in their districts with their proposals. They would be telling the people what they think the municipality or province should invest in, bazaar buildings for street vendors to move to for instance, and shall perhaps be campaigning against the mayor’s announced plan to build a giant clock on the town plaza courtesy of his daughter working for a Swiss watch company.” Hmm.
    “Secretary,” said Christiane Amanpour, “you seem to forget that the Philippine version of the party-list system that sought to accommodate small-party representation in Congress ended up birthing hundreds of new small parties sponsored by either the major parties or by private interests. Wouldn’t this bill of yours produce the same Kessler effect?”
    “No, no, no,” said Roxas in the dream, agitated once again as if he was sitting in front of a Romualdez, “please don’t confuse my department’s bill’s delegate satellites with the confused astronomy of our party-list system. A town could come up with a hundred new NGOs vying for election, for all I care. But what they each will have to do is approach the people with a plan and not a mere NGO name with a mere slogan to vote for.” Did he answer the question?
    Now, of course, as many TV statements go, his speech was cut-edited to smell this good:
    “Enough of this representative democracy that has plagued our nation since the Katipunan!” Roxas continued in the dream, now flailing his arms after every word like an Italian. “It is high time the people rise up to decide for themselves what they want and what they need, and not just leave it to representative individuals or party-list system small parties all claiming to represent the voice of the people to tell the people what they need and want. Through the decades, we would always find disconnects between that representation—often fake—and what results when we directly ask the people. This is what my department’s bill is all about!”
    Roxas’ sweat from the effort flooded his shirt, and CNN became both embarrassed and excited by his lecturing.

    But instantly I awoke to the TV alarm that played a Korina Sanchez YouTube video. It took me about an hour before I could muster an appetite for breakfast. I decided to prepare pancakes and coffee only after I accepted the fact that, in the real world as in the dream, Roxas’ advisers would indeed tell him only about the usual need—“you'd need the mayors more than the real civil society to win, sir.” And Roxas, being the political conservative of the Liberal Party who has always been pretending to be the social liberal that he would never become, much less the democratic socialist that you’d wish in your own dreams he would turn out to be, would be seen nodding toward this supposed pragmatism from his team instead of awakening to Robredo’s better version of a future. [FIN]



BLOG POSTSCRIPT JULY, 2014:

I was surprised to find out that Roxas did follow up on a bottom-up budgeting program that preceded his DILG appointment, which program elicited the fear of an economist, this according to journalist Tricia Zafra’s July 7 report titled “Bottom-up budgeting, mistulang pork barrel daw ni Sec. Roxas, ayon sa isang ekonomista”.

Then, on July 14, GMA Network posted a fearful report titled “Poor municipalities to receive P15M each in 2015—Roxas”.

I must note here, though, that earlier, on February 19, Rep. Leni Robredo already filed her unabridged participatory budgeting idea as a bill (HB03905 or House Bill 3905, An Act Institutionalizing Citizens Participation in the Budget Process and for Other Purposes). Click here to read that more transparent document. And, indeed, what’s missing in Robredo’s bill is also what is missing in Roxas’ implementation of his DILG-based bottom-up budgeting program. You guessed right. It’s that part where the community districts would be able to elect their delegates to the participatory budgeting council, as in the Porto Alegre model. Without that element, the participatory budgeting process can turn into another Napoles-like managed conglomeration of favored and even fake civil society groups pretending to “participate” in the budgeting process.

It’s that missing element that makes Roxas’ Grassroots Participatory Budgeting Process suspect and makes the fear of the July 15 Philippine Daily Inquirer report titled “Loss of DAP shelves P2B in DILG projects—Roxas” (where Roxas seems to admit his projects were not bidded out or covered by contracts) perfectly understandable.

What Roxas is trying to do is dangerous because, unlike Robredo who has the open personality (and a desire for an open government - see some of her other bills) to accommodate improvements to her participatory budgeting idea, Roxas has that politician's persona that could give participatory budgeting a bad name at a time when we sorely need it!