BUREAU OF INTERNAL REVENUE v. ZIEGFRIED LOO TIAN (No. 1013, Juan Luna Street, Brgy. 7, Zone 1, Tondo Manila)

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY ENBANC P E OPLE OF THE PHILIPPINES, CTA E B CRIM NO. 107 Plaintiff Appellant, (CTA Crim Case No. 0-956) -versus- Present: D el Ro sario, P.J., Ringpis-Lib an, M an ah an , Bacorro-Villena, Mod esto-San P ed ro, Reyes-Fajardo, C ui-D avid, Ferre r-Flores, and Angeles, ]]. ZIEGFRIED LOO TIAN, Pro mul~ate d : JUN 111 ~ A cmsed-AppeUee, ~ ------X X-------- --------------- ------------------------- ------------------------ -- ,. �~4 . ""� DECISION RINGPIS-LIBAN, J.: Before this Court is the Amended Verified Petition for Review (of the Resolution dated February 9, 2023) filed by plaintiff-appellant People o f the Philippines o n June 6, 2023 1 assailing the Resolution dated December 5, 2022 (1"' Resolutio n)2 and Resolution dated February 9, 2023 (2m1 Resolution)3 promulgated by the Court of Tax Appeals Second Division (Court in Division) in the case entided " People of the Philippines vs. Ziegfried u o Tian, No. 1013, juan Luna Stree!, Bw . 7, Zone 1, Tondo, Manila, (At Lorge)," docketed as CTA Crim. Case No. 0 -956. T he dispositive po rtion of the 1"' Resolu tion reads/ 1 Rollo, CT.\ EB Crim. ~o. 10- , pp. 239- 283. 2 Ibid., pp. 293-297. ~ Ibid., pp. 299-303.

Page 2 ()f 12 DECISIC ):'\ CT \ I�:H CRI\1. :\C)_ 10- (CT.\ Crim. C:H� '\u_ li-<J::i6~ "WHEREFORE, in view of the foregoing considerations, CT \ Crim. Case ::\o. 0-956 is hereby DISMISSED on the ground of prescription. SO ORDERED" The dispositive portion of the 2"d Resolution reads: "WHEREFORE, in light of the foregoing considerations, the :\lotion for Reconsideration (of the Resolution dated December 05, 2022) filed on January 5, 2023 is DENIED for being filed out of time and for lack of merit. _-\ccordingh�, the lZcsolution dated December 5, 2022 dismissing the instant case on the ground of prescription is hereb1� AFFIRMED. SO ORDERED." THE PARTIES Plaintiff-appellant People of the Philippines through the Bureau of Internal Revenue (BIR), a gm�ernment agency mandated to collect nanonal revenue taxes, is represented b1� Commissioner of Internal Revenue through Revenue Officers Emerita D. Tan, Carine P. Balmeo, Dominador "\. Callangan, .\rnel _-\. Boco and .\dclina P. See, all of legal ages, Filipinos, and with postal address ar c/o Rm. 704, BTR :\ational Office Building, BIR Road, Diliman, Quezon Cin�, where the summons, notices and other legal processes of rhis Honorable Court may be served." "\ccused-.\ppellec Ziegfried Loo Tian is registered with BIR IillO :\ o 29- Tondo, San Nicolas, \lanila with Taxpa1-cr Identification 1\:umber (Tl:\J 193-647-148-000. He is the Sole Proprietor of Colden Taste Food Services & General J\lerchandising engaged in the business of food catering and/ or wholesale of general merchandise with busine:;s address at No. 1013 Juan Luna St, Brgy. 27, Zone 4, Tondo, i\lanila, where the summom, notices and other legal Processes of this Honorable Court may be sen-ell/.' . 1 _-\mended Pcrition for Renew, p. 3 :, Ibid.

l':1gc 3 ()112 Dl�:t:l.'-'1< l~� C:T.\ I�J~ CRl\1. \:( l. !W ,:(:T \ < :rilll_ ( .bl' '"� 11-9_'1(, THE FACTS Filed before the Court in Division on October 26, 2022 is the Information for violation of Section 254 of0:ational Internal Revenue Code (!"IRC) of 1997, as amended, which read as follows: "INFORMATION 'That on or before October 20, 2011, in Quezon Citv, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a Filipino citizen, recruired bv law to file his Quarterlr Yalue-_-\dded Tax Return (\'_\T return), did, then and there, willfully, unlawfulh- and feloniously attempt to c\�ade and defeat payment of \'_\T for the third (3) CJUarter of taxable Year 2011, bv stating in the entry fields of the said return the word "exempt", when in truth and in fact said accused is not exempted as he failed to comply with the substantiation and reporting requirement under the tax law and revenue regulations, which resulted to deficiency tax in the amount of Three .\lillion One Hundred Sixtv. Six Thousand Two Hundred Fort\-- Six Pesos and Fifty Fi,-c Centavos (3,166,246.55), exclusive of interests, penalties and surcharges to the damage and prejudice of the Government of the Republic of the Philippines.' CONTRARY TO LAW."" The following documents are attached to the said Information, I'LO;: 1. Resolution dated .\lay 11, 2017 issued by Prosecution Attorney Jayvee Laurence B. Bandong, denying for lack of merit the motion for rcconsideration7 2. Resolution dated September 1, 2014 issued by Prosecution .\ttorncy Jan-ee Laurence H. Handong, recommending that the following Informations be filed: 1. Informations for two (2) count,; of ,-iolation of Section 255 of the :\IRC:, as amended, be filed against rcspondcnt J:iegfricd Zoo Loo Tian for his failure to supply correct information in his ITR for the taxable \'ear 2010 and his failure to file his ITR for taxable \�ear 2011/ r, Docker, CL\ Crim. Case ~o. 0-956, p. .S. -Ibid., pp. "-9.

jl<l).!.t' 4 l)f 12 !)J�:U~I< l:\ ( T. \ I �:B (:I\ I \L :\.( l. ln- �:CJ' \ <:rim.< :.l:'l' '\n. (l.iJ:'i(J; 2. Informations for two (2) counts of violation of Section 254 of the NIRC, as amended, be filed against respondent Zicgfricd J,oo Tian for his attempt to evade or defeat income taxes for taxable vears 2010 ' and 2011; 3. Informations for eight (8) counts of violation of Section 255 of the NIRC, as amended, be filed against respondent Ziegfried Loo Tian for his failure to supply correct and accurate information in his Y.\T returns for the taxable \�ears 2010 and 2011; 4. Informations for eight (8) counts of violation of Section 254 of the NIRC, as amended, be filed against respondent Ziegfried Loo Tian for his attempt to evade or defeat taxes in his Y.\T returns for taxable years 2010 and 2011.' 3. Investigation Data Form;9 4. .'nnhorin� and appnmd for the filing and imtitution of Criminal Complaint against accused /:icgfried Loo Tian, issued by the Commissioner of Internal !Zevcnue (CIR) on Juh� 5, 2012;"' and 5. Joint Complaint c\ffidavit (JC\) of Emerita D. Tan, Carine P. Balmeo, Dominador _\. C:allangan, _\mel .\. !:loco and c\delina P. See, datedJuh 5, 2012, with attachments 11 "o. On December 5, 2022, the Court in Division issued the 1" Resolution disrnissing CL\ Case 0-956, on the ground of prescription. On January 5, 2023, the Court in Division received plaintiff-appellant'>, "Formal Entry of "\ppearance with :\lotion for Reconsideration."" On February 9, 2023, the Court issued a Resolution holding that the Y\Iotion for Reconsideration was belatedlv flied on Januarv 5, 2023. Hence, the plaintiff-appellant's Y\Iotion for Reconsideration is denied. In the same Resolution, the Court noted the Entry of :\ppearancc of Deputized Special ~ "Docker, pp. 10-19. '0 Ibid., p. 191. [II Ibid., PP� 21-22. II Ibid., p. 23-3'. t.: I hid., pp. 2Jl)_2_l3.

h~c 5 of 12 DI�:U:-;1< ):\ CT.\ I�:H CIU:-.!. :\( ). 10-: ~:c J' \ Cnm. C1~l� :\o. (l-tJ56; Prosecutors Catherine RoseR. Tortoles,Jamaica Kay DelaCruz, and c;race E. Untalan. 13 "-\ggrieved, plaintiff-appellant filed on February 28, 2023, a \' erit!ed Petition for Review (of the Resolution dated February 09, 2023). 1 " On :-larch 15, 2023, plaintiff-appellant filed by registered mail a ":-lanifestation and II lotion"" manifesting that it committed error in the caption of the "Verified Petition for Review (of the Resolution dated February 09, 2023) and prayed that the caption of the title of the case be corrected from "Bureau of Internal Revenue" to "People of the Philippines" as the plaintiff-appellant. On ilia\" 26, 2023, the Court issued a Resolution which noted and o-ranted " 0 the ":\lanifestation and ,\lotion," and ordered plaintiff-appellant to file an amended Y crified Petition for Review (of the Resolution dated FebruarY 09, 2023), within fi\�c (5) days from notice."' On June 9, 2023, the Court Ell Bm1r received the ".\mended Verified Petition for Review (of the Resolution dated February 09, 2023)," filed lw registered mail on June 6, 2023-" On June 19, 2023, the Court Ell Ba11t i"ucd a 0-linutc Resolution'" noting the ""�\mended Verified Petition for Review (of the Resolution dated February 09, 2023)," and directed accused-appellee to file his Comment, not a \lotion to Dismiss, within ten (10) days from notice. On JulY 12, 2023, the Court E11 Bm1r received the '\otice of Appearance as counsel for accused-appellee tiled by De Ramos and Bantigue Law Office. 1'1 On Julv 17, 2023, th1: Court E11 Ba111 issued a :\linute Resolution'" which noted the Notice of ,\ppearance of De Ramos and Banriguc 1,aw Office. On july 27, 2023, the Court E11 Banr received accused's "Comment/Opposition (Rc: \'erified Petition for Review of the Resolution dated 09February 2003).'/ 11 Docket, pp. 23J-2-t 1. 1�1 Rollo, CT~-\ EJ3 Crim. :\ o. 10-, pp. l-2-J., \\�ith .-\nnl'xl'~- 15 Ibid., pp. 2-l-9-:?.:13. 11' Ibid., PP� 256-:?.SS. 1 ~ 250-283, with _-\nnexe~. I~ Ibid., P� 514. I') Ibid.. PP� 515-51- )l Ibid., p. 519. ~ 1 lb1d., pp. S2U-J30.

Jl-,!~C 6 ()f 12 [)i.:Chl( l:\ i:T\ I:B(:JU\1 :\<l IW :(:"J"\(:rltll (:.l~v"-�l_u.(J"'h, On ~\ugust 7, 2023, the Court E11 Ba11e issued a .\linute Resolution" which noted accused's "Comment/Opposition (Rc: \'erificd Petition for Review of the Resolution dated 09February 2003)," and deemed the instant case submitted for decision. THE ISSUE The main issue for the Court E11 Ba11r'.r consideration is "Whether or not the Court En Bane has jurisdiction to review the Court in Division's assailed Resolutions." THE ARGUMENTS Plaintiff-appellant claims that the Second Division erred when it denied the .\lotion for Reconsideration allegedly for being filed out of time; that the .\lotion for Reconsideration \Vas timely filed on Januan� 5, 2023, as the reckoning point for the counting of the fifteen (15)- day period for filing of the .\lotion for Reconsideration is on December 21, 2022, the date of the BIR's Receipt of the assailed Resolution elated December 5, 2022, which lapsed on Januarv 5, 2023: that the Second Division erred when it found no probable cause to charge accused-appellee for \�iolation of Section 254 or willful attempt to ende or defeat payment of tax for the third quarter of taxable year 2011; that prescription has not set in, since the prescriptive period began to run on July 5, 2012, when the BIR filed a complaint for violation of the ~m.C of 1997, as amended, agaitbt accused-appellee, but at the same time, prescription was interrupted for the same reason that proceedings for purposes of prcliminan� im-cstigation were instituted on the same dare before the Department of Justice; and that accused appellee should be held liable for willful attempt to e\'ade or defeat tax for the third quarter of taxable year 2011. :\ccuseJ-appellee argues that the right of the government to prosecute has prescribed pursuant ro Section 281 of the 1'\IRC:, of 1997, as amended; that the case must be dismissed for violation of accused's right to speech� disposition of cases; and that the Resolution of the Court elated December 5, 2022 attained finalin� when the prosecution failed to timely file its motion for reconsideration. THE RULING OF THE COURT EN BANC After consideration, the Court E11 Balle finds that plaintiff-appellant's opportunit\' to appeal has already lapsed since the assailed Resolutions kn-c become Enal and executorY for failure of plaintiff-appellant to file a .\lotion for Reconsideration in accordance with the rules./ / "lbtd., p. C1~.

Paf.;t: 7 11f 12 l)l �:(:lSI<):\ (:L\IJ-~(:lU\L:\<l.IU-��<:1"\<:nm l ..l~l-'\.11 (l. 1))(J Plaintiff-appellant's right to appeal is a statutory privilege that must be exercised in the manner provided by law. Sections I and 9, Rule 9 of the Re1�ised Rules of the Court of Tax .\ppcab (RRCL\) provide: SECTIO:\: 1. Rn�ieu.J of aue.r i11 t/Je Co1111. - The review of criminal cases in the Court fll bm1!" or in Division shall be governed b1� the applicable prm�isions of Rule 124 of the Rules of Court. XXX XXX SECTIO:'\ 9. Appeol,�period to appeal- XXX XXX (b) "-\n appeal to the Court e11 bm1t in criminal cases decided by the Court in Di1�ision shall be taken b1� filing a petition for review as provided in Rule 43 of the Court of Court within fifteen days from receipt of a copv of the decision or resolution appealed from. The Court may, for good cause, extend the time for filing of the petition for re1�iew for an additional period of not exceeding fifteen da1�s. XXX XXX Rule 15, Section 1 of the Revised Rules of the Court of Tax .-\ppeals provides: SECTION 1. U//Jo 1120)' and JJJben to file motion.- .\m aggrieved party may seek a reconsideration or new trial of anv decision, resolution or order of the Court by filing a motion for reconsideration or new trial within fifteen days from the date of receipt of notice of the decision, resolution or order of the Court in question." (Empbo.ri.r o11n) Based on the records of this case, the :'\otice of Reoolution elated December 5, 2022" shows that the Resolution elated December 5, 2022 dismissing the case on the ground of prescription, was received by 1) the DOJ '\Jational Prosecution Service (NPS) Docket Section on December 16, 2022, and 2) the BIR- Prosecution Division on December 21, 2022.. / I ~~ Docker, p. ~12.

P~1gl� 81,f12 DJ�:U:.:.J( ):'\ CT.\ I�:H UU.\1. :\() I(!-~{ :T.\ (:rim. ( ::l~L� :\IJ_ o"lJS();, The period for the filing of the 1\Iotion for Reconsideration should begin upon receipt by the DOJ of the 1st Resolution dated December IS, 2022 since the DOJ's public prosecutor is the principal prosecutor in this case before the Court in Di,�ision. Section 5, Rule 110 of the Revised Rules of Criminal Procedure, as amended by "L\l. No. 02-2-07-SC provides: "Section 5. IF'/10 mml pro.remle ,rimi11al actio11.r. - All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor, unless the authoritY is revoked or otherwise withdrawn. f-Iowc\�er, in :-.lunicipal Trial Courts or \lunicipal Circuit Trial Courts when the prm;ecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court." (EmpiJa.ri.r o;;n) Section 3, Rule 9 of the Revised Rules of the Court of Tax ~~ppeals, as amended, (RRCT:\) provides: "SEC. 3. P;memtioJ! of crimi11al artioi!J. -All criminal actions shall be conducted and persecuted under the direction and control of the public prosecutor. In criminal actions involving violations of the National Internal Revenue Code or other laws enforced by the Bureau of Internal Revenue, anJ violations of the Tariff and Customs Code or other laws enforced by the Bureau of Customs, the Prosecution may be conducted by their respective duly deputized legal officers." (EmpiJaJzj� o11n) On January 5, 2023, the plaintiff-appellee through the "Deputized Srecial Prosecutors" filed a "Formal Enuy of Appearance with \lotion for Reconsideration." ~\ttached as ".~\nnex ~\" thereof is the ".~\uthorization and Depulization of Law\'ers of the '\lational Office - Prosecution Division." The pertinent portion of said authoritY reads as follows: "c\s per your recommendation and pursuant to Section 5, Rule 110 of the Re\'iscd Rules of Criminal Procedure, the abov~

Jl:lgL� 9 ol 12 DITI.'-\I<l:... CT.\ IJ-~ CRJ.\1. "(( l. 10"'" (CT \ Crim_ C:.bl� :\o. O-(J36~ mentioned BIR lawyers are hereby authorized by this Office to assist the public prosecutors in handling criminal tax cases, subject to court approval. It is understood that as special prosecutors, they shall continue to prosecute tax offenses before the courts, up to the end of the trial, even in the absence of the prosecutor, unless the authorization is revoked or withdrawn." (Emp!Jasis o/lrs) Records show that the assailed 1" Resolution dismissing the case was issued on December 5, 2022, while the Formal Entr\' of .�\ppearance was filed on January 5, 2023. The Entry of .\ppearance was noted/ approved by the Court in Division in the assailed 2"" Resolution dated February 9, 2023. Thus, the deputization of the lawyers from the BIR-Prosecution Division was not 1-ct approved b1� the Court when the assailed 1" Resolution was issued. Note also that the written aurhorit\' deputizing the BlR law\'l:rs of the BlR-Prosccurion Division merely authorized them ro a.rsL~>! t/Je p!i/Jiicpru.remton, not to replace them as counsel in a particular case. The reckoning point for the counting of the fifteen (1 5)-da\' period to file a l\Iotion for Reconsideration is on December 16, 2022, the date when the 1" Resolution was served upon the DOJ- NPS Docket Section. Pursuant to the above-mentioned provisions, plaintiff-appellee had fifteen (15) days from December 16, 2022 or until December 31, 2022 within which to file a .\lotion for Reconsideration. Since, December 31, 2022 was a holida1�, the last da1 for filing a :\lotion for Reconsideration was on Januan� 3, 2023, the next working da1�. l-Ienee, when the :\lotion for Reconsideration was filed on Januan� 5, 2023, plaintiff-appellant's right to appeal had alrcad1� lapsed. "\ party who fails to question an adverse decision b\' not filing a ;.!orion for Reconsideration within the period presctibed by the rules loses its right to do so, since the decision as to it, becomes final and binding. It is important to bear in mind that a judgment becomes final by operation of law.'" The finality of a decision becomes a fact upon the lapse of the reglementary petiod of appeal if no appeal is perfected or no motion for reconsideration or new trial i:; filed. The Court need not even pronounce the finalitY of the decision as the same becomes final bY operation of law.'/ ~~ jjJo!l.fCY PoNdc !'J. H,mJ; 1�/lijlillo Sa!'il{~��� ,wr/. I!ot1~<~pt' Ht~llk d ,d. (;. R. :'-\ o_ ~~~(J:2l I, )lll1t' 1:1, :2! 12i J. ..:>:; Di.�"fi/Jih'O el. /1!. I'Y. I �;/J,:Jiterfr', C.R. \:o. 2-+-YH,.fuh� L), 2!12L c111ng Bolrrto h<:sta Rcst;ntrant \" Bl'roi1Ll, -;-.:<) Phil. 520,539 (2016).

P;lgL� 10 nf 12 Dl�'.CI:-.H l:\ ( :T.\ I -:H ( :JU \L :\( l Hr (I :T \ <:rim_ r:.~~l� \:u (1-CJ36, In CJR vs. F011 Bonifacio Developmellt Corporatio11,'6 the Supreme Court emphasized that: "It has been ruled that perfection of an appeal in the manner and within the period laid down by law is not only mandator\' but also jurisdictional. The failure to perfect an appeal as required by the rules has the effect of defeating the right to appeal of a party and precluding the appellate court from acquiring jurisdiction over the cao>e ..\t the ri,;k of being repctitiouo;, \\'c declare that the nght to appeal is not a natural right nor a part of due proccs:;. It i,; merel1� a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law." In 1\ippoll Evpre.rJ (P!Ji!zppiJ!eJ) Co1p. I'J. Commir.riomr oflntemal Re!�WJie." the Supreme Court ruled that: "It must be emphasized that juri,;diction over the subject matter or nature of an action is fundamental for a court ro act on a given controversy, and is conferred onh� bv law and not by the consent or waiver upon a court which, otherwise, would have no juri,;diction over the subject matter or nature of an action. Lack of jurisdiction of the court over an action or the subject matter of an action cannot be cured b1� the ,;ilence, accluic:;cencc, or e1�en ])I" expres,; comcnt of the partie,;. If the court ha,; no jurisdiction over the nature of an action, its only JUrisdiction io; to dismi,;s the case. The court could not decide the case on the merits. The CL\, even if vested with special Jurisdiction, is, as courts of general jurisdiction can onh take cognizance of such matters as are clearly within its statutory authorit\'. Relative thereto, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, the court shall dismiss the claim." Since the assailed 1" Resolution of the Court in Di1�ision has become final and executon', the Court En Bane cannot exercise appellate jurisdic6on to re1�icw the same. ,\ccordingh', the Court E11 Bane must dem the instant petition. WHEREFORE, premises considered, the instant ,\mended \"erified Petition for Review is DENIED for lack of jurisdiction/ I ~ 1' G.R. ~o. 10~606,. \ugusr I L ~tllU. ~- C.R. '\:o. 18)6(J(J, February (J-t, 2!11).

DF<:JS]( ):'\ C:T_\ 1�:1-i C:RL\1 \:0. 10- {CL\ Cnm. C,bc :--...o_ O-SlS6) SO ORDERED. fiN. ~ _,/\_..._ MA. BELEN M. RINGPIS-LIBAN c\ssociate jusrice WE CONCUR: ROMAN G. DEL ROSARIO Presiding Justice c~ 'T, .ft.:----~~- cATHERINE T. MANAHAN .\ssociatc J usticc \... r. ~ &..,. ~ -FQ;~ MARIAN 1V1.JF. REYif'S-FAJXRDO .\ssociatc Justice _\~sociatc Justice HENRY ~GELES

P~lf!:C 12 of 12 DJ ,:u:-;Jo:" t:T_\ I�:H CIU\L :--..:< l. lW :cT.\ C:rim. C:1~L� ~IJ. !J. 1)'i(J:, CERTIFICATION Pursuant to },nicle VIII, Section 13 of the Constitution, it is hcrcb1� certified that the conclusions in the abmT Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. Presiding Justice