PEOPLE OF THE PHILIPPINES v. BONIFACIO CUSTODIO DEL ROSARIO

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY SECOND DIVISION PEOPLE OF THE PHILIPPINES, CTA CRIM. CASE NOS. 0-718 Plaintiff, For: Violation of Section 255, in relation to Sections 253 and 256 of the National Internal - versus - Revenue Code of 1997, as amended BONIFACIO CUSTODIO DEL Members: ROSARIO, Bonnie Del Rosario Caltex Service RINGPIS-LIBAN, Chairperson, Station, 2263-B Jose Abad Santos MODESTO-SAN PEDRO, and Street, Brgy. 227 Zone 21, District II, FERRER-FLORES, JJ Tondo, Manila Promulgated: Accused. DEC 13 'IDZ4 / ~/I . P' ------ f�- i-f- X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ) - - - -1\ .X RESOLUTION To recall, on April 29, 2019, the prosecution filed the Information dated February 19,20191 against herein accused BONIFACIO CUSTODIO DEL ROSARIO, for violation of Section 255, in relation to Sections 253 and 256 of the National Internal Revenue Code (NIRC) of 1997, as amended, for failure to pay deficiency income tax for taxable year (TY) 2010 despite several notices and demands. Thereafter, a Warrant of Arrest was issued against the accused on May 21,2019.2 The Court, in the Resolution dated July 31, 2019,3 ordered the issuance of Alias Warrant of Arrest4 against the accused. 1 Docket, pp. 8 to 9. 2 !d. at 49. 3 !d. at 55. 4 Issued on August 1, 2019, !d. at 56.

RESOLUTION CTA CRIM. CASE NO . 0-718 Page 2 of4 Subsequently, or on March 6, 2020, the case was archived, without prejudice to its revival immediately upon accused's apprehension. 5 Upon a careful evaluation of the records, as will be discussed below, this Court finds that the government's right to institute the criminal action has already prescribed. In resolving the issue of prescription of the offense charged, the following should be considered: (1) the period of prescription for the offense charged; (2) the time the period of prescription starts to run; and, (3) the time the prescriptive period was interrupted.6 Section 281 ofthe NIRC of 1997, as amended, provides: SEC. 281 . Prescription fo r Violations ofany Provision ofthis Code. - All violations of any provision of this Code shall prescribe after five (5) years. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty persons and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. The term of prescription shall not run when the offender is absent from the Philippines. (Emphasis supplied) Based on the foregoing provision, the period of prescription for the offenses charged under the NIRC of 1997, as amended, is five (5) years. Prescription begins to run (1) from the day of the commission of the violation of the law; and, (2) if the day of the commission is unknown, from the discovery of the commission and the institution ofjudicial proceedings for its investigation and punishment. In both instances, the period is interrupted when judicial proceedings are instituted against the guilty persons.7 This Court takes into consideration the case of Emilio E. Lim, Sr. and Antonia Sun Lim vs. Court of Appeals and People of the Philippines8 (Lim case), which provides that, for purposes of the commencement of the 5 Docket p. 71 . 6 Romualdez vs. Marcelo, G.R. Nos. 165 510-33 , .July 28, 2006, citin g the case of Domingo vs. Sandiganbayan. 7 People ofthe Philippines vs. Wintelecom, Inc.!Hua C. Uychiyong (Treasurer), CTA EB Crim. No. 090, June 21 ,2023 . 8 G.R. Nos. L-48134-37, October 18, 1990.

RESOLUTION CTA CRIM. CASE NO. 0-718 Page 3 of4 prescriptive period in relation to the charge of refusal to pay deficiency taxes due, said violation could only be committed after service of notice and demand for payment of the deficiency taxes upon the taxpayer. In addition, in Tupaz vs. Ulep9 (Tupaz case), the Supreme Court, citing the Lim case, held that the offense of failure to pay deficiency taxes is committed only after finality of the assessment coupled with the taxpayer's willful refusal to pay the taxes within the allotted period. We quote: Petitioner was charged with failure to pay deficiency income tax after repeated demands by the taxing authority. In Lim, Sr. vs. Court of Appeals, we stated that by its nature the violation could only be committed after service of notice and demand for payment of the deficiency taxes upon the taxpayer. Hence, it cannot be said that the offense has been committed as early as 1980, upon filing of the income tax return. This is so because prior to the finality of the assessment, the taxpayer has not committed any violation for nonpayment of the tax. The offense was committed only after the finality of the assessment coupled with taxpayer's willful refusal to pay the taxes within the allotted period. In this case, when the notice of assessment was issued on July 16, 1984, the taxpayer still had thirty (30) days from receipt thereof to protest or question the assessment. Otherwise, the assessment would become final and unappealable. As he did not protest, the assessment became final and unappealable on August 16, 1984. Consequently, when the complaint for preliminary investigation was filed with the Department of Justice on June 8, 1989, the criminal action was instituted within the five (5) year prescriptive period. (Emphasis supplied) In the present case, the Formal Letter of Demand (FLD) and Assessment Notices were issued on January 24, 2014 and was allegedly served on accused. 10 There was no indication, however, as to when the FLD and Assessment Notices were actually received by accused Del Rosario. Neither was date of the receipt of the FLD mentioned in the Complaint Affidavit of Renator P. Gutierrez, nor was it indicated in the attached certified true copy of the FLD and Assessment Notices. Considering that plaintiff failed to indicate the date of actual receipt of the FLD by accused Del Rosario, the Court shall consider the date of service on the date of issuance and the due date indicated therein, i.e. February 25, 2014. Thus, counting from the alleged date of the commission of the crime on February 25,2014, which is 30 days after the FLD and Assessment Notices were issued, the Information should have been filed before this Court within five years from February 25,2014, or until February 25,2019. Clearly, when the Information was filed before this Court on April29, 2019, more than two months have passed since the government's right to institute a criminal action prescribed. 9 G.R. No . 127777, October 1, 1999 . 10 Par. 7 of the Complaint-Affidavit, Docket p. 20 ; Annexes C toE of the Complaint Affidavit, Docket, pp. 29 to 34.

RESOLUTION CTA CRIM. CASE NO. 0-718 Page 4 of4 WHEREFORE, premises considered, CTA Criminal Case No. 0-718 is hereby RETRIEVED from the archives and, accordingly, DISMISSED on the ground of prescription. Furthermore, the Alias Warrant of Arrest issued against the accused is RECALLED and SET ASIDE. SO ORDERED. ~.~ - t '--- MA. BELEN M. RINGPIS-LIBAN Associate Justice