Who Represents the Government on Appeal? The Solicitor General's Role vs. BIR Lawyers

The question of who may represent the government in appellate proceedings—the Office of the Solicitor General (OSG) or the legal officers of the Bureau of Internal Revenue (BIR)—was squarely addressed by the Supreme Court in Commissioner of Internal Revenue v. La Suerte Cigar and Cigarette Factory (G.R. No. 144942, July 4, 2002). The ruling draws a clear line between who may commence a tax case and who must appeal it.

The Case Before the Court

The Commissioner of Internal Revenue filed a Petition for Review on Certiorari before the Supreme Court, assailing a Court of Appeals ruling on the taxation of stemmed-leaf tobacco. The petition was initially denied for two procedural reasons: it lacked proper verification, and it was not pursued by the Solicitor General.

The Commissioner moved for reconsideration, citing the provision of the National Internal Revenue Code stating that tax actions "shall be conducted by legal officers of the Bureau of Internal Revenue." The Commissioner argued that this provision allowed BIR lawyers to handle the appeal without OSG participation.

The Issue

The central issue was whether the Tax Code provision permitting BIR legal officers to conduct tax actions also allows them to represent the government in appeals before the Supreme Court, or whether the Solicitor General retains primary responsibility for appellate representation.

The Ruling

The Supreme Court held that while BIR legal officers may institute and conduct tax cases before trial courts, an appeal is a different matter. The Court explained:

"The institution or commencement before a proper court of civil and criminal actions and proceedings arising under the Tax Reform Act which 'shall be conducted by legal officers of the Bureau of Internal Revenue' is not in dispute. An appeal from such court, however, is not a matter of right."

The Court ruled that the Tax Code provision must not be read as overturning the long-established procedure requiring the Solicitor General to represent the Republic in appellate proceedings. Citing the Administrative Code of 1987, the Court noted that the OSG has the duty to represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings and in all civil actions where the Government is a party.

The Court also cited Gonzales v. Chavez, describing the Solicitor General as the "principal law officer and legal defender of the government."

The Exception

The Court recognized an exception from Orbos v. Civil Service Commission: when one government office takes an adverse position against another, and the Solicitor General's position runs counter to a client agency's stance, the affected office may appear in its own behalf through its legal personnel.

The Court's Disposition

Despite the procedural defects, the Court gave the Commissioner a chance to prosecute the case, noting the Commissioner "labored and acted in good faith." The Court directed the OSG to enter its appearance for the petitioner and to manifest whether it would adopt the petition. On the verification issue, the Court held that lack of verification is "neither jurisdictional nor always fatal" and may be excused in meritorious cases to serve substantial justice.

Practical Takeaways

• BIR lawyers can start tax cases in trial courts under the Tax Code, but they cannot appeal to the Supreme Court without the Solicitor General's participation.
• The OSG has primary appellate responsibility for the government, a rule rooted in the Administrative Code of 1987 and decades of jurisprudence.
• The exception is narrow: a government agency may appear on its own only when the Solicitor General takes a position adverse to it, as in intra-government disputes.
• Verification defects are curable: an unverified petition may be excused in meritorious cases, since verification is not jurisdictional.
• Practical tip for government lawyers: coordinate with the OSG early when an appeal to the Supreme Court is anticipated, to avoid dismissal on procedural grounds.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.