CTA Case No. 268 (Resolution)

ftEPUBLIC � OF Tim PHILIPPINES COURT OF TAX APPEALS MANILA DIRK VAN DOf'.KlEN, C. T.A. Petitioner, 6ASE NO. 268 - versus - COLLECTOR OF INTERNAL REVENUE, Respondent. x- - - ~ - - - - - - � � - ~ �x RESOLUTION This is a peiition to review the decision of the Collector of Internal Revenue assessing an amount of ~444o03 as deficiency income tax for the year 1949o On May 17, 1956, the respondent filed a ''Motion to Dismiss�� the petition on the ground of~lack of jurisdiction of this Court to entertain the appeal. The facts of the case as appearing from the pleadings are as follows: The petitioner on Feb- ruary 14, 1950 filed an income tax return for the year 1949o On July 7, 1955, the respondent sent to the petitioner a letter, accompanied by a notice of assessment dated June 25, 1955, demanding the pay- ment of deficiency income tax for the year 1949 in the amount of �444 .03 plus the corresponding penal - ties. Both the assessment and letter were received by petitioner on July 15, 1955. On July 25, 1955, petitioner filed with respondent a letter d"ated July 23, 1955 requesting the cancellation and with- drawal of the assessment for the reason that the right of the respondent to assess the tax had pres-

RESOLUTION - C.I.A. CASE NO. 268 .. 2 - cribed, in that more than five (5) years had elapsed from the fi l ing of his income tax returns to the is- suance of the assessmento On November 26, 1955 , pe- titioner received the l etter of respondent denying petitionervs request for cancellation and withdrawal of the assessment , and stating that the government had still the right to assess the deficiency income tax because petitionerts income tax return was frau - dulent and the prescriptive period applicable thereto was ten (10) years under section 332 of the Tax Codeo On December 2,. 1955� the petitioner filed a letter with the respondent requesting that the latter recon- sider his ruling of November 17, 1955 claiming that his income tax return was not fraudulent because the deductions made by the petitioner was due to error or mistake of law and therefore do not constitute fraud. On April 12, 1956 , p�titioner received respondent 1 s letter dated March 28, 1956, again denying petitioner's request for reconsideration . On May 5, 1956 petitioner filed with this Court the herein "Petition For Review" aQainst which respondent filed thi "Motion to DismissD on the ground that the appeal was filed beyond the reglementary period of thirty days prescribed by Sec- . tion 11 of Republic Act No o 1125. Respondent argues that the thirty- day period should be reckoned from July 15, 1955, when petitioner received the assess - ment and letter of respondent . Petitioner on the other hand contends that the period should be counted from November 26 , 1955, when petitioner received res -

BES<DLUTION - C.I.A. CASE NO. 268 - 3- pendent ' s letter denying the reconsideration re- quested by petitioner . Under sections 7 and 11 of Republic Act No o 1125, a taxpayer may appeal from a decision of the Collector of Internal Revenue within 30 days after receipt of such decisiono The decisions of the Collector of Internal Revenue which are appealable to this Court r~ fer to "determinations made or ar- rived at by the Collector which would become final and executory unless modified or reversed by said official, or appealed to a superior authority in accordance with law.u (Angel Saraos vs. Bureau of Internal Revenue, C.I .A. Case No o 229, prom. March 5, 1956; Merced Drug House vs. Collector of Internal Revenue, C. T&A . Case No~ 180, prom . May 21� 1956). In these two cases, this Court resolved that the assessment or letter of demand sent by the Collector of Internal Revenue to a taxpayer requiring the lat- ter to pay the taxes indicated therein is a "decision" in that it is a determination of the taxpayer's lia- bility, and contains the substantial and dispositive part thereof (Ventanilla v. Board of Tax Appeals, GoR . L-7384p Dec . 19, 1955). This view finds support in the case of Bull v . U.So (1935 , 295 u.s. 247; 79 L. Ed. 1421) wherein it was stated: "A tax is an exaction by the sovereign , and n~cessarily the sovereign has an en- forcible claim against everyone within the taxable cla ss for the amount lawfully due from him. The statute prescribes the rule of taxation. Some machinery mus t .~e Pro- vided for applying the rule to the facts in

RESOLUTION - C.T.A. CASE NO. 268 - 4- Applying the foregoing doctrine to the instant case, we\ find that respondent 1 s letter dated July 7, 1955~ith the accompanying assessment constituted the decision of the respondent, in that the taxpayer's liability was determined therein. Hence, it follows that the 30-day period within which to appeal the de - cision to this Court sho~ld be reckoned .from July 15, 1955� the date petitioner received such decision. The period to appeal was then suspended on July 25, 1955, when he filed his request for reconsideration with the Collector of Internal Revenue and began to run again on November 26, 1955, when petitioner re- ceived respondent's letter denying the said request for reconsideration . The period to appeal was again interrupted by petitioner's second request for recon- sideration filed with the respondent on December 2J 1955, but resumed to run once again on April 12, 1956~ /7'

RESOLUTION - C. T.A. CASE NO, 268 - 5- l when petitioner rec mived respondent's letter deny- ing the same . Since , the herein petition � for review was filed on May 5 1 1956, a total of thirty- nine (39) days had been consumed by petitioner before his appeal was perfected, which is manifestly beyond the period prescribed by law within which to appeal to this Courto We are therefore of the opin;Lon and so hold that this Court could not assume jurisdic- tion over the herein petition to reviewo In view of our conclusion above , we find it no longer necessary to resolve the "Motion to Require the Stenographer to Produce Stenographic Notes" filed by the respondent, on June 14, 1956, the same having become academic . WHEREFORE, the herein "Petition For Review" is hereby dismissed for lack of~jurisdiction , with costs against the petitionero SO ORDERED. Manila~ July 31 , 1956. WE CON0UR: ROMAN M. UMALI Associate Judge