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| It’s election time, watch out for LOAs |
|
(Article published in the Oct 13,2003 issue of TODAY, Business Section)
When President Gloria
Macapagal Arroyo declared her intention to be a candidate for president in
the 2004 elections, she signaled the informal start of the election
season. And just as the rainy
season brings with it a host of illnesses and disasters, the election
season spawns a multitude of fund-raising activities by those legitimately
running for office as well as by those just taking advantage of the
situation.
Some of these activities
undoubtedly are lawful, such as the Php 10,000- a-plate dinners with
celebrities; others are less than lawful, such as kidnapping, extortion,
and, in the case of incumbents seeking election, pork and patronage, and,
in the extreme, the use of the governmental powers to compel contribution
or to neutralize one’s influence. Naturally, the targets of such fund-raising activities are
those who have the funds, the large estate owners who wittingly or
unwittingly, by mien or demeanor, have exposed to the public their deep
pockets.
It is easy enough for large
estate owners to protect themselves from kidnapping and extortion.
Simple prudence, such as avoiding a lavish lifestyle or refusing to
be repeatedly mentioned in the news or society pages as a person of
wealth, plus reasonable measures of personal security are usually
sufficient protection. But
trickier is dodging fund solicitation done through the manipulation of
legal process. Not only does the shakedown have the aura of authority, it
also, when undertaken by those in government, enjoys the presumption of
regularity that effectively disguises the operation.
Over the years, Letters of
Authority (LoA) from the Bureau of Internal Revenue have been recognized
as one of the instruments of fund solicitation.
The LoA had acquired such notoriety that, over the years, it has
become the practice for the Bureau of Internal Revenue to refrain from
issuing LoAs during the Christmas season, which in our country begins from
All Saints Day on November 1 and ends no earlier than Valentine’s Day on
February 14. Because several
incumbents are expected to run for office in the 2004 elections, it may be
a good idea for the Department of Finance, if only to set the right tone,
to extend that practice to the election season.
But until the good Secretary Jose Isidro Camacho and his good Commissioner of Internal Revenue Guillermo Parayno have done so, it is will be beneficial for estate owners to understand what they are up against when they are confronted with a LoA. For reasons of space, I would like to focus on the LoA issued in the process of a tax fraud investigation, rather than the more common LoA used in the routine examination of a taxpayer’s tax returns. The tax fraud LoA is the more dangerous one.
The
government’s right to collect taxes ordinarily does not prescribe.
However, “for the purposes of safeguarding taxpayers from any
unreasonable examination, investigation or assessment, our tax law [the
National Internal Revenue Code] provides a statute of limitation in the
collection of taxes.” (Commissioner v. B.F. Goodrich Phils. Inc., 303
SCRA 546). Thus, as a general rule, no internal revenue taxes are required
to be
However, the three (3)
years is lengthened to ten (10) years and the starting point for the time
period is not from the filing of the return or the deadline for payment of
the tax, but from discovery by the Bureau of Internal Revenue of the
failure to file a return or the filing of a false, or fraudulent return
with intent to evade tax. Since
there is no time limit for when the BIR discovery may be made, a fraud
assessment is, for all practical intents and purposes, also not subject to
prescription.
In addition, fraud, if
proven, gives justification for the imposition of the 50% surcharge,
attracts the imposition of criminal penalties that include imprisonment
and fine, forecloses the possibility of compromise with the Commissioner,
and, in case of the VAT, paves the way for suspension and temporary
closure of the taxpayer’s business operations.
Because of the gravity of a
fraud case, the Bureau of Internal Revenue, to its credit, in 1995 laid
out detailed guidelines for its personnel, particularly the examiners of
the Tax Fraud Division, in the investigation of tax fraud cases.
The major document is Revenue Memorandum Order No. 15-95, issued on
09 June 1995, and amended, in certain areas, by subsequent issuances.
Perhaps the portion most
relevant to estate owners is procedure laid out. Revenue Memorandum Order
No. 15-95, as amended, particularly by Revenue Memorandum Order No. 23-97,
speaks of a two-stage process.
It talks of an initial
phase called “a Preliminary Investigation” to establish the
“indication of fraud”. The
previous wording of the purpose was “to establish the prima facie
existence of fraud”. The
omission of the qualifying “prima facie” means, under rules of
statutory construction, the imposition of the stricter quantum of evidence
required. Prima facie is no
longer sufficient. The fact
of the existence of indications of fraud (39 non-exclusive indications are
listed) must thus be established in the initial stage.
This is to be done through
“verification of the allegations in the confidential information and/or
complaints filed, and the determination of the schemes and the probable
extent of fraud perpetrated by the subject taxpayers, through access to
records and surveillance, without contact, personal or otherwise, with the
taxpayer.”
Once the “indication of
fraud” is duly established by the examiner and the requisite internal
review by the appropriate supervisors are conducted, the Regional Tax
Fraud Committee confirms the report and an LoA is issued. Then and only
then, perhaps does the taxpayer realize that he had been all along under
investigation. The LoA authorizes the examination of the books of account
of the taxpayer that starts the formal investigation proper, known as
Formal Tax Fraud Investigation. This
is where the taxpayer is given the opportunity to defend himself. Too
late, if I may say so.
It is a taxpayer’s right,
I maintain, to require, prior to honoring the LoA, proof that the
preliminary investigation phase has in fact been conducted, precisely
because it is an essential step to prevent the LoA from becoming an
instrument of oppression, harassment, or even extortion.
The signatory to the LoA
ought to be made to answer for the compliance of the initial step for
without such a warranty, as it were, the entire investigation becomes a
mockery of due process. An LoA issued to harass, by its mere issuance,
shall have, by that time and irrespective of the result of the formal
investigation, attained its purpose.
In this season of election, it is important that taxpayers receiving LoA that is preparatory to a fraud assessment exercise a good measure of activism and vigorously insist on being satisfied that a preliminary investigation has in fact been conducted and an indication fraud was in fact established. If they shirk from this responsibility, they have only themselves to blame if they are considered sitting ducks this election season.
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