SAMPLE ONLY AND SHOULD NOT BE USED FOR ANY LEGAL PURPOSE. THIS PRIVILEGED COMMUNICATION IS A PERSONAL BELIEF OF KATAX. DON'T SHARE OR DISSEMINATE ITS CONTENTS TO OTHERS
REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF JUSTICE
MANILA
FOR THE URGENT ATTENTION OF HONORABLE SOJ LEILA DE LIMA
NPS DOCKET # XVI-INV-11J-00380
For: Violation of Sections 254 & 255, NIRC
Bureau of Internal Revenue (BIR)
Complainant, versus,
EMELINO T MAESTRO
Respondent.
x-------------------------------x
MOTION TO DISMISS
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LEGAL PURPOSE
My objectives are
to supply the laws of the State that were deliberately skipped out
to explain the relevancy of these laws to my case
to request for the dismissal of this case for it contradicted the substantive laws
MEDIA RELEASES
On October 13, 2011, Deputy Commissioner for Legal and Inspection Group, Ms. Estela V. Sales (Estela) knowingly announced to the citizens of the Earth that based on the reports submitted and presumably approved by Commissioner Kim Henares (Kim), a tax evasion charge has been filed against me, EMELINO T MAESTRO.
To prove that this event really happened, I am submitting the following documents
BIR Weekender Brief (ending October 14, 2011) wherein Estela is spearheading the press conference and a clipping beside her picture in which the issues presumably being discussed is EMELINO T MAESTRO (Annex 3001)
BIR Media Release dated 13 October 2011 which was approved by Estela and presented EMELINO T MAESTRO as a tax evader (Annex 3002)
News clipping from www.philstar.com wherein EMELINO T MAESTRO was tagged as a tax evader (Annex 3003)
News clippings from newsinfo.inquirer.net where in wherein EMELINO T MAESTRO was tagged as a tax evader (Annex 3004)
MALFEASANCE DOES NOT BIND THE STATE
On July 15, 2010, Kim issued a Letter of Authority number 44654
In the said letter, she knowingly informed me that
under the RATE Program, I must allow the revenue officers whose names appeared therein (assigned in Revenue District Office No. 32) to investigate my 2007, 2008 and 2009 books of accounts and other accounting records.
a report of investigation shall be supplied to me once she already approved it.
On April 27, 2012, she deliberately issued a BIR Ruling of First Impression numbered M-043-2012 which says that ‘Based on the above provisions, Commissioner of Internal Revenue has a basis and authority to issue LOA (now, eLA). Accordingly, Letter of Authority No. 44654 dated July 15, 2010 is valid’ (Annex 3005).
Under Section 6(A), Kim is authorized to assigned revenue officers to investigate taxpayers’ returns and records. And, in my case, she knowingly assigned five (5) revenue officers having a rank lower than a division chief.
Clearly, she laid down her legal obligations that can be summed up as follows, viz;
First, there will be an investigation of my books of accounts and other accounting records which for the record, are in the control and possession of her Officer prior to the filing of criminal charge against me.
Finally, she obligated herself to inform me by way of issuing/submitting to me a duly approved report of investigation.
For the record, the report of investigation, which sometimes is attached and form an integral part of the Notice for Informal Conference, is yet to be prepared and issued.
To prove it, I quote the statement of her subordinate, Manila Regional Director Simplicio A Madulara, pursuant to his February 29, 2012 letter to me, “With respect to the Notice for Informal Conference, Preliminary Assessment Notice and Final Assessment Notice, it is informed that these notices are yet to be issued to you as your 2007 audit case is still on-going with Revenue District office No. 32.” (Annex 3006)
NO OFFICIAL CAPACITY
Where did Neil Cordero (Neil) and Eulema DV Demadura (Eulema) who were both assigned at Special Investigation Division of Revenue Regional Office No. 6 and not at Revenue District Office No. 32 get their official capacity and authority to investigate me?
Until now, Neil and Eulema knowingly failed and refused and still fail and refuse to produce a Letter of Authority which would confirm and affirm that they are first authorised and empowered by Kim to investigate my 2007, 2008 and 2009 tax returns and records.
How did Neil and Eulema (on October 13, 2011) arrive at their alleged deficiency VAT and income tax assessments when the investigation on my books of accounts and other accounting records is still on going as at February 29, 2012?
Therefore the figures that Neil and Eulema produced and submitted to this Honorable Office are incorrect/bogus and did not undergo the prescribed procedures that Section 269(D), NIRC is obliging them to do, viz;
“Violations Committed by Government Enforcement Officers. - Every official, agent, or employee of the Bureau of Internal Revenue or any other agency of the Government charged with the enforcement of the provisions of this Code, who is guilty of any of the offenses herein below specified shall, upon conviction for each act or omission, be punished by a fine of not less than Fifty thousand pesos (P50,000) but not more than One hundred thousand pesos (P100,000) and suffer imprisonment of not less than ten (10) years but not more than fifteen (15) years and shall likewise suffer an additional penalty of perpetual disqualification to hold public office, to vote, and to participate in any public election: xxx (d) Offering or undertaking to accomplish, file or submit a report or assessment on a taxpayer without the appropriate examination of the books of accounts or tax liability, or offering or undertaking to submit a report or assessment less than the amount due the Government for any consideration or compensation, or conspiring or colluding with another or others to defraud the revenues or otherwise violate the provisions of this Code”
DUE PROCESS HAS BEEN VIOLATED
I had been deprived of the DUE PROCESS.
Aside from the eLA, no other document from the time that I received it until DCIR Sales, on October 13, 2011, made her quad-media releases was deliberately served to me.
Contrary to the statements, information and promises stated in the said eLA, Kim, Sales, Neil and Eulema did not even
bother to use/look at my books and other accounting records
conduct a thorough audit/investigation thereon
provide me a copy of the alleged Kim-approved report of investigation
I just learned that I have an outstanding deficiency income tax and value added tax liabilities through televisions, newspapers, radios and BIR website.
I was deprived to know how did Neil and Eulema come up with the amounts of deficiency income and value added taxes.
Although the Record/Report of Investigation (ROI), pursuant to Revenue Memorandum Order No. 53-2010 (Annex 3007) is considered as an official document and its contents are prohibited to be disclosed, divulged and discussed to any person other than those directly concerned thereto, the quad-media and the millions viewers/listeners/readers of TV/radio/newspapers/BIR Media Release were the first to know that the record/report of investigation is already prepared, reviewed, approved and released. Clearly, the substantive law was deliberately violated which for quick reference is published hereunder, viz;
Section 270, NIRC. Unlawful Divulgence of Trade Secrets. Any officer or employee of the Bureau of Internal Revenue who divulges or makes known in any other manner to any person other than the requesting foreign tax authority information obtained from banks and financial institutions pursuant to Section 6(F), knowledge or information acquired by him in the discharge of his official duties, shall, upon conviction, be punished by a fine of not less than Fifty thousand pesos (P50,000) but not more than One hundred thousand pesos (P100,000), or suffer imprisonment of not less than two (2) years but not more than five (5) years, or both.
It is a sign of respect and obedience to the laws of the State that before the report of investigation, if it is really Kim-approved, shall be leaked to the quad-media, I should first be advised of its existence and contents.
According to BIR prescribed/legal proceedings that is Revenue Memorandum Order No. 27-98 (Annex 3008), no Report of Investigation shall be approved unless the taxpayer is given the chance to be informed of the nature of the findings and the result of audit.
They knowingly humiliated me in the eyes of the public.
Their real purpose might be to inflict lasting pains and unbearable stresses..
The statement of Kim that I shall be informed of her duly approved report of investigation was deliberately ignored, disregarded and skipped off in order to gain favorable approval from the Filipino people.
MY LEGAL DUTY
It is my duty to the State and to this Office to inform them of any malfeasance, incompetence, negligence and delinquency (acronym, ‘MIND’) that willfully perpetuated by the complainants and their cohorts. For quick reference, I publish hereunder the applicable procedure, viz;
Interprovincial Autobus Co., Inc. v. Collector, 98 Phil 290. Assessments are prima facie presumed correct and made in good faith. The taxpayer has the duty of proving otherwise. In the absence of proof of any irregularities in the performance of official duties an assessment will not be disturbed. All presumptions are in favor of tax assessments.
The act of proclaiming to the entire world that I am a tax evader is contrary to the laws of the State and has no legal leg to stand on.
Their actions from the preparation and filing of the Criminal Complaint were consciously and maliciously planned and executed.
My right to due process is totally disregarded.
My privacy and public image as a law-abiding citizen/taxpayer was directly attacked.
In other words, the purpose of the criminal complaint is to tarnish my character and credibility.
In making a decision to this instant case, the substantive laws as shown below should be upheld and strictly implemented, viz;
Section 11, Book 1, 1987 Administrative Code. “The State's Responsibility for Acts of Agents. - (1) The State shall be legally bound and responsible only through the acts performed in accordance with the Constitution and the laws by its duly authorized representatives, and (2) The State shall not be bound by the mistakes or errors of its officers or agents in the exercise of their functions.”
Section 39, Ibid. No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, moral, public policy and good customs even if he acted under orders or instructions of his superiors.
Section 8, Republic Act No. 9335. Liability of Officials, Examiners and Employees of the BIR and the BOC. – The officials, examiners, and employees of the Bureau of Internal Revenue and the Bureau of Customs who violate this Act or who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of their duties shall be held liable for any loss or injury suffered by any business establishment or taxpayer as a result of such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence.
In other words, if the acts of the BIR is contrary to the law, public order and public policy, they shall not bind the State as well as the BIR and the DOJ. Neither the State can use them to create rights and impose obligations and penalties.
I publish Section 228, NIRC, in relation to the BIR Letter of Authority issued to me, viz;
“When the Commissioner or his duly authorized representative finds that proper taxes should be assessed, he shall first notify the taxpayer of his findings: provided, however, That a pre-assessment notice shall not be required in the following cases: (a) When the finding for any deficiency tax is the result of mathematical error in the computation of the tax as appearing on the face of the return; or (b) When a discrepancy has been determined between the tax withheld and the amount actually remitted by the withholding agent; or (c) When a taxpayer who opted to claim a refund or tax credit of excess creditable withholding tax for a taxable period was determined to have carried over and automatically applied the same amount claimed against the estimated tax liabilities for the taxable quarter or quarters of the succeeding taxable year; or (d) When the excise tax due on exciseable articles has not been paid; or (e) When the article locally purchased or imported by an exempt person, such as, but not limited to, vehicles, capital equipment, machineries and spare parts, has been sold, traded or transferred to non-exempt persons. The taxpayers shall be informed in writing of the law and the facts on which the assessment is made; otherwise, the assessment shall be void.”
Speaking aloud! Kim and her accomplices would justify their actions by way of saying that there is no need to issue an assessment prior to the filing of a criminal case to this Office.
Again, to refute dearly what might had been in their mind, Section 228, NIRC must be consulted and logically analyzed. And, in doing so, one can clearly identify and completely pinpoint the cases that do not need a notice of assessment. For easy reference, I publish, again, its provision hereunder, viz;
(a) When the finding for any deficiency tax is the result of mathematical error in the computation of the tax as appearing on the face of the return; or
(b) When a discrepancy has been determined between the tax withheld and the amount actually remitted by the withholding agent; or
(c) When a taxpayer who opted to claim a refund or tax credit of excess creditable withholding tax for a taxable period was determined to have carried over and automatically applied the same amount claimed against the estimated tax liabilities for the taxable quarter or quarters of the succeeding taxable year; or
(d) When the excise tax due on exciseable articles has not been paid; or
(e) When the article locally purchased or imported by an exempt person, such as, but not limited to, vehicles, capital equipment, machineries and spare parts, has been sold, traded or transferred to non-exempt persons.
For the record, my case does not fall within the purview of the above exemptions.
Finally, Philippine Supreme Court had already warned the BIR that before any criminal charge shall be filed, a notice of deficiency tax assessment should first be delivered to me, viz;
“An assessment fixes and determines the tax liability of a taxpayer. As soon as it is served, an obligation arises on the part of the taxpayer concerned to pay the amount assessed and demanded. Hence, assessments should not be based on mere presumptions no matter how reasonable or logical said presumptions may be." G.R. No. L-13656 January 31, 1962
“In order to stand the test of judicial scrutiny, the assessment must be based on actual facts. The presumption of correctness of assessment being a mere presumption cannot be made to rest on another presumption” G.R. No. 112024 January 28, 1999
The above substantive law would encourage this Office that indeed, the due process had deliberately been disrespected.
Twice, the NIRC said, viz;
“he (BIR Commissioner) shall first notify the taxpayer of his findings”
“The taxpayers shall be informed in writing of the law and the facts on which the assessment is made; otherwise, the assessment shall be void.”
Until now, I have yet to receive the so-called deficiency VAT and income tax assessments.
Since there is a deliberate failure/refusal to serve them to me, the deficiency tax assessment notice/s that was/were submitted and became an integral part of the Criminal Complaint Affidavit is void ab initio.
If the legal basis or foundation of the said Affidavit is void ab initio, the Affidavit is also void ab initio.
MOTION FOR REINVESTIGATION AND REASSIGNMENT
I heard that my case was already reassigned to another Prosecuting Attorney. However despite one (1) Motion For Speedy resolution and four (4) Motions for Reinvestigation and Reassignment had been filed as early as February 14, 2012, the schedule of hearing is yet to be received.
For the records, all files, motions, notices and communications that I already submitted to this Office shall form a part hereof and be harmonized thereto in order to produce a system or position which should favor me or my case.
CONCLUSION
The acts perpetuated knowingly by the complainant revenue officers are contrary to laws of the State.
Since it is contrary to the laws of the State, they are not binding and enforceable against the State.
The State shall consider it as a mere scratch paper.
Without conducting a preliminary investigation, the case may be dismissed
PAGES AND COUNTERPARTS
As a privileged communication, this has 6 pages and 6 original counterparts.
COPY CIRCULATED
In aid of legislation, a copy shall be sent to Chair., Ways and Means, House and Senate. To investigate administratively the concerned revenue officers, a copy shall be sent to the President of the Philippines. To investigate cases other than administrative in scope, a copy shall be sent to the Executive Justice, Court of Tax Appeals. The copy of Neil/Eulema and Hon SOJ Leila De Lima shall be delivered personally.
PRAYER
In the name of the Almighty God, I humbly pray and move that the FRUIT OF THE POISONOUS TREE shall be consistently applied and this framed-up case shall, based on the above explanations and corresponding evidences, be dismissed accordingly.
VERIFICATION
I aver and assert that
I cause this to be prepared
I did read and knows its contents
the allegations herein are true and correct of my own knowledge.
SIGNATURE
Emelino T Maestro
TIN 129 596 230
Mobile 0998 979 3922
Unit 419, Corporate 101, Mother Ignacia, Quezon City
To valid and enforceable, all notices, orders, resolutions, affidavits, annexes, evidences and other communication shall be sent either via registered mail or personal delivery at the address presented below my name.
It is legally agreed and accepted that my actual receipt thereof shall be the reckoning moment where the rights and obligations shall begin to run or are created and the principle of estoppel shall be an irrelevant/inadmissible justification.
CERTIFICATION
I hereby certify that I have personally examined the signatory hereof and I am satisfied that he fully understands and voluntarily executed this.
JURAT
SUBSCRIBED AND SWORN BEFORE ME
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