CTA Case No. 2119 (Resolution)

HEPURt.IC OF TilE PHlLIPPl ~ES cc;LJRT OF TAX APPEALS QUEZON c;rrv lviAGNJ EQUIPHENT u:. SUPPLY CO ., INC . , Pe t i t 2. em-: r , -versus- C . T.A . CASE NO . 2119 COMMISJ IUhEh �JF INTEh.I~A L HEVENUE, Respondent�. X- - - RS 3 0 L UT I J N On May l+ , 1962 respondent assessed the petitioner the sum of �27,205 . 85 as commercial broker ' s fixed and percentage taxes , inc lusive of s urcharge for 1960, and the additional sum of ;4 , 350 . 00 as compromise penalty . In a letter cateu May 29, 1962 which was re c eivea by respondent on May 31 , 1962 petitioner req:lcSti;d withdravJal and canceL. ation Jf the uS- ._ss- ment , which request w&s dPnir by respondent in a letter dated August 7 , 1962 . In his denial aduressed to petitioner ' s couns el, respondent reQues ted said counsel ~lltha t you urge yo ur client -co se t tle'~ the amount assessed 'l'in order tha t t his case may be closed . t' On August 2 9 , 1962 counsel for pe titioner requested for reinvestigation of the assessment but this was also denied by respondent in a l e tter of September 11 , 1962 who asked said counsel to '��urge your client to payl- the s urn assessed t�in order that the case may be closed . u Receipt of this denial was acknowled ged by petitioner in a reply dated September24, 1962 Respondent now urges that his decision of S e ptember

RES OLUTION CTA CASE NO . 2119 2 11 , 1962 final and although in the reply of September 24, 1962 petitioner requested a reconsideration of the denial of his request for re- investigation of August 29 , 1962 , s~me did not suspend the running of the period for appeal since it was pro forma in nature . his petition for review was therefore filed late on May 12 , 1970. It appears that the present case is one of a number of cases of similar nature handled by the same counsel. In many communications between them , said counsel and respondent sometimes dealt with said cases jointly and not separately. A letter of respondent dated September 26 , 1962 has the following tenor : With reference to your various letters for and in behalf of your various clients , ap- pealing from the assessments ~this Office against them for broker ' s fixed and percentage taxes in relation to thcirbusiness dealings with the International Harvester Macleod , Inc ., I have the honor to inform you that your administrative appeal for and in behalf of said clients will be held in abeyance pending resolution of the issues on a similar case which was appealed by you to the Court of Tax Appeals . In order to resolve once and for all � the factual and legal issues arising from the judicial appeal of one of your clients , this Office has decided to deny your request for an administrative hearing of each of the cases of your various clients which are similar to the case elevated by you on appeal to the Court of Tax Appeals . ,

- 9.E::J_ L J~IJN C'l'A CASE NO . 2119 3 IL a lso appears that in a letter dated ~pril l, 1963 respondent advised petitioner's counsel that its r eque st for reconsideration woQld be given due course provided a waiver of the statute of limi tations is filed . Petitioner answered with ~ letter dated May 8, 1963 and a waiver expiring December 31 , 1968. In a lette r of August 2, 1968 respondent asked petitioner to extend his ~aiver to December 31 , 1972 and petitioner executed a new waiver expiring on June 30 , 1975 ~ Respondent 1s po s:Ltion that che denial of September 11 , 1962 was final in tenor is not in accordance vri th the evidence adduced by the parties and the r ecord . In said letter respondent merely requested petitioner ' s counsel llthat you urge your client to settle" the amount assessed "in oraer that ~hi s case may be closed . " This hardly conveys finality . On the other hand , respondent ' s letter of Septem~r 26 , 1962 belie such implication because in it respondent clearly manifested that resolution of the protest in quescion was being held in abeyance o The least that can be said in this respect is that respondent reconsidered the finality of the denial af September 11, 1962 (Torres vs . Comm. of Int . Rev . , C'IA. Case No . 2118 , Resolution of January 30, 1973) . Thus, we are of the opinion that the thirty-day period for appeal to this Court should not be counted from September 24 , 1962 � ��

RESOLUTION - CTA CASE NO . 2119 4 We further note however , that paragraph XII of the petition for review alleges that - Notwitpstanding the fact that no final decision has been rendered by the respondent on petitioner ' s protest and/ or request for reconsideration, this peti- tion is being filed by petitioner in view of information received from the Bureau of Internal Revenue that a Warrant of Distraint and Levy may be served upon petitioner, x x x � Aside from this admission , it may also be said that there is nothing in the record of this case to show that any such final decision has been rendered by re- spondent . While a warrant of distraint and levy is equivalent to a denial of a pending motion for recon- sideration or reinvestigation (Frederick L. Hahn vs . Comm. of Int . Rev ., CTA Case No . 1937 , Resolution of April 30 , 1969) , it is so only when the Cownissioner has not actuall y taken any action on the motion or request for reconsideration . (Gepte vs . Comm . of Int . Rev ., CTA Case No . 1511 , Resolution of March 31 , 1971 . ) In the instant case , there is even no showing tha t a warrant of dis traint and levy had actually been issued . Under the circumstances , this petition for review is premature . WHEREFORE , the petition for review is hereby .a i smissed for being premature . Without pronounce~

RESOLtJT ION - CTA CASE NO . 2119 5 ment as to costs . SO ORDERED . Quezon City, April 15, 1974. ~~~~- RlU,ION L . AVANCENA Associate Judge I concur : Associate Judge ESTANISLAO R. ALVAREZ took no part.