HAVI FOOD SERVICES PHILS., INC. v. COMMISSIONER OF INTERNAL REVENUE

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY THIRD DIVISION HAVI FOOD SERVICES PHILS., INC., Petitioner, -versus- CTA Case No. 7735 Members: BAUTISTA, Chairperson PALANCA-ENRIQUEZ, and C O T A N G C O -MANALAST AS ,JJ. COMMISSIONER OF INTERNAL ProFE~a2dB 2011 REVENUE, ~T~a.-..-.h //.'v1> a . - . Respondent. X- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - X DECISION COTANGCO-MANALASTAS, J.: Before this Court is a Petition for Review filed on March 10, 2008 by Havi Food Services Phils., Inc. to seek the refund or issuance of tax credit certificate in the amount of P5,238,461.00, allegedly representing its unutilized excess creditable income taxes withheld for taxable years 2005 and 2006. STATEMENT OF FACTS Havi Food Services Phils. Inc. (petitioner) is a domestic corporation duly organized and existing under the laws of the Philippines, with principal office located i-- at Sumulong Highway, Marikina, Metro Manila.1 1 Par. I, Stipulatio n ofFacts, Joint Stipulation of Facts and Issues, docket, p. 56

� DECISION CTA CASE NO. 7735 Respondent is the duly appointed Commissioner of the Bureau of Internal Revenue (BIR) with authority to act as such, including, among others, the power to decide, approve, and grant refunds or tax credit of overpaid internal revenue taxes as provided by law. He holds office at the BIR National Office Building, BIR Road, Diliman, Quezon City. On March 28, 20062 and March 29, 20073, petitioner filed its Annual Income Tax Returns for taxable years 2005 and 2006, respectively. Thereafter, petitioner filed two (2) formal written applications for refund with the BIR Revenue District Office No. 045-Marikina City on February 20, 2008 and August 31,2007 in the amount ofP5,238,461.00, representing its unutilized excess creditable income taxes withheld for 2005 and 2006.4 Respondent failed to render his decision on the subject application for income tax refund. Hence, petitioner filed the instant Petition for Review on March 10, 2008. Respondent filed his Answer5 on May 13, 2008 and raised the following Special and Affirmative Defenses: "5 . The claim for refund is still under examination by the respondent's Bureau; 6. The burden of proof is upon the petitioner to prove that it IS entitled to the claim for refund; 7. The grant of a claim for refund (sic) tantamount to an exemption from taxation which is construed strictly against the claimant and in favor of the taxing authority; f.- 8. The taxes sought to be refunded were paid in accordance with law; the burden of proof to the contrary is upon the petitioner-claimant 2 Exhibit "A" 3 Exhibit "C" 4 Par. 5, Stipulation of Facts, Joint Stipulation of Facts and Issues, docket, p. 57 5 Docket, pp. 40-42

DECISION CTA CASE NO. 7735 to show with clear and unambiguous provision of law supporting the same." On May 14, 2008, a Notice of Pre-Trial Conference was issued by this Court setting the case for pre-trial conference on May 23, 2008 and requiring both parties to be present at the pre-trial and to file with the Court and serve on the adverse party their pre-trial briefs.6 Petitioner and respondent simultaneously filed their respective pre-trial brief on May 21, 2008.7 On June 11, 2008, the parties filed their Joint Stipulation of Facts and Issues8 before this Court, which was approved in a Resolution dated June 17, 2008. In the same resolution, the pre-trial was considered terminated.9 During trial, petitioner presented and formally offered its documentary and testimonial evidence; while respondent manifested that he is submitting the case for decision since there was no terminated examination. 10 Consequently, respondent was granted a period of thirty (30) days from September 29, 2009 within which to file his Memorandum; while petitioner was given a period of fifteen (15) days from receipt of the Resolution dated October 1, 2009 within which to file its Memorandum. 11 The case was considered submitted for decision on March 22, 2010, in view of the report dated March 18, 2010 of the Records Division that no memoranda have been filed by both parties. 12 ~ 6 Docket, p. 43 7 Docket, pp. 44-54 8 Docket, pp. 56-58 9 Docket, p. 63 10 Minutes of the Hearing held on September 29, 2009, docket, p. 284 11 Docket, p. 286 12 Resolution dated March 22, 20 I0, docket, p. 304

DECISION CTA CASE NO. 7735 STATEMENT OF ISSUES The parties submitted the following issues 13 for this Court's resolution: "Whether Petitioner is entitled to be refunded its excess creditable withholding taxes as of calendar year ended December 31 , 2006 in the amount ofP5,238,461.00 by showing- a) Whether or not the creditable withholding taxes amounting to P6,452,706 for CY 2005 and P5 ,003 ,896 for CY 2006 are duly supported with Certificates of Creditable Taxes Withheld at Source; b) Whether or not the income from which these creditable taxes were withheld were duly declared as part of Petitioner's income in its Annual Income Tax Return and audited financial statements for CY December 3 1, 2005 and December 31, 2006; c) Whether or not Petitioner did not carry over its unutilized creditable withholding taxes as of calendar year ended December 31, 2005 and December 31, 2006 to the succeeding taxable year 2007. d) Whether or not Petitioner duly filed both administrative and judicial applications for refund within the two-year prescriptive period provided under Sections 204 and 229 of the Tax Code, as amended." DISCUSSION/RULING Petitioner anchors its claim on the provisions of Section 76 of the National Internal Revenue Code (NIRC) of 1997, in relation to Sections 204 and 229 of the same Code. Section 76 of the NIRC of 1997 is hereunder quoted for easy reference : "SEC. 76. Final Adjustment Return . -Every corporation liable to tax under Section 27 shall file a final adjustment return covering the total taxable income for the preceding calendar or fiscal year. If the sum of the quarterly tax payments made during the said taxable year is not equal to the total tax due on the entire taxable income of that year, the corporation shall either: (A) Pay the balance of tax still due; or (B) Carry-over the excess credit; or (C) Be credited or refunded with the excess amount paid, as the case may be. In case the corporation is entitled to a tax credit or refund of the excess estimated quarterly income taxes paid, the excess amount shown on its final adjustment return may be carried over and credited against i--- the estimated quarterly income tax liabilities for the taxable quarters of 13 Docket, pp. 57-58

('' DECISION CTA CASE NO. 7735 the succeeding taxable years. Once the option to carry-over and apply the excess quarterly income tax against income tax due for the taxable quarters of the succeeding taxable years has been made, such option shall be considered irrevocable for that taxable period and no application for cash refund or issuance of a tax credit certificate shall be allowed therefor." (Emphasis supplied) Based on the afore-quoted provision, the corporate taxpayer' s excess tax credits or overpaid income tax in a given taxable year may either be refunded (either in the form of cash or tax credit certificate) or carried over/applied to the succeeding taxable years. However, once the option to carry-over has been made, the same becomes irrevocable for that taxable period. This Court also takes note of its ruling in the case of Shell Services International Sendirian Berhad vs. Commissioner of Internal Revenue 14 as regards the determination of the option chosen by the taxpayer in accordance with Section 76 of the NIRC of 1997. The pertinent part of the said Decision reads: "(W)hile petitioner marked with an 'x' the box corresponding to the phrase 'to be refunded' in its 2000 ITR, petitioner had actually exercised the option to carry-over its 2000 excess creditable withholding tax to the year 2001, and in fact, it had already carried over to the succeeding year its unutilized creditable taxes withheld for the taxable year 2000. By express mandate of Section 76, once the option to carry-over has been made, such option is irrevocable for that taxable period and no application for cash refund or issuance of tax c1�edit certificate shall be allowed therefore." (Emphasis supplied) Applying the foregoing to the facts of this case, records show that petitioner's claim ofP5,238,461.00 consists ofthe following: Excess credits in 2005 p 234,565.00 Add: Creditable taxes withheld in 2006 5,003,896.00 Excess 'fax Credits Claimed for Refund /..-- p 5,238,461.00 14 CTA EB No. 196, June 13,2007 (CTA Case No. 6658, March 14, 2006)

.' DECJSJON CTA CASE NO. 7735 A perusal of petitioner's Annual Income Tax Return for taxable year 200615 shows that petitioner carried over the 2005 excess credits in the amount of P234,565.00, which was included in the carry-over amount of P7,252,340.00.16 The same was reflected in petitioner' s 2007 Annual Income Tax Return, which shows prior year's excess credits amounting to P5 ,920,361.00,17 consisting of the following: Petitioner's CWT claim for refund - 2000 and 2001 p 9,357,681.00 Less: CWT granted by the Court (2 ,339 ,906 .53) 2000 Excess Credits to be carried over 2000 Excess Credits reflected in 2006 ITR p 7,017,774.47 Add: 2005 Excess Credits p 7,017,775 .00 Total Prior Year' s Excess Credits reflected in 2006 ITR Less: Tax due for 2006 234,565 .00 Net Prior Year's Excess Credits reflected in 2007 ITR p 7,252,340.00 (I ,331 ,979.001 p 5,920,361.00 Accordingly, while petitioner marked with an "x" the box corresponding to the phrase "To be issued a Tax Credit Certificate" as may be perused in its 2005 Annual Income Tax Return 18, petitioner had actually exercised the option to carry-over its 2005 excess creditable withholding tax to succeeding taxable years . On the other hand, upon further scrutiny of the returns offered in evidence, it was found that petitioner opted to be refunded of its tax credits for taxable year 2006, as shown by the "x" mark in the box corresponding to the said choice in the return. 19 Inasmuch as the amount of P5,920,361.00 excess credit still includes the 2005 excess credits of P234,565.00, only the excess tax credits for taxable year 2006 in the amount of P5,003 ,896.00 can be a proper subject of a claim for refund pursuant to Section 76 of the NIRC of 1997. Nevertheless, settled jurisprudence as well as Section 2.58 of Revenue Regulations (RR) No. 2-98, as amended, require the taxpayer's compliance with three j..__ 15 Exhibit "C" 16 Exhibit "C-3"; Exhibit "V", page 6 17 Exhibits "E" and " E-2" 18 Exhibit "A-4" 19 Exhibit "C-5"

DECISION CTA CASE NO. 7735 basic requirements in order for it to be entitled to the refund of excess creditable withholding taxes, to wit: 1. That the claim for refund was filed within the two-year prescriptive period as provided under Section 204(C), in relation to Section 229 of the NIRC of 1997; 2. That the fact of withholding is established by a copy of a statement duly issued by the payor (withholding agent) to the payee, showing the amount paid and the amount of tax withheld therefrom; and 3. That the income upon which the taxes were withheld were included .111 tI1e return of tI1e reci.pi.ent.20 Consequently, this Court shall determine whether petitioner was able to satisfy the foregoing requirements. As to the first requisite, the relevant provisions of the NIRC of 1997 are Sections 204(C) and 229, which provide as follows : "SEC. 204 . Authority of the Commissioner to Compromise, Abate and Refund or Credit Taxes.- The Commissioner may- XXX XXX XXX (C) Credit or refund taxes erroneously or illegally received or penalties imposed without authority, refund the value of internal revenue stamps when they are returned in good condition by the purchaser, and, in his discretion, redeem or change unused stamps that have been rendered unfit for use and refund their value upon proof of destruction . No credit or refund of taxes or penalties shall be allowed unless the taxpayer files in writing with the Commissioner a claim for credit or refund within two (2) years after the payment of the tax or penalty: Provided, however, That a return filed showing an overpayment shall be considered as a written claim for credit or refund. xxx" (Emphasis supplied) "SEC. 229. Recovery ofTax Erroneously or Illegally Collected.- No suit or proceeding shall be maintained in any court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have L-- been excessively or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Commissioner; but such suit 20 Section 2.58.3(8), Revenue Regulations No. 2-98; Citibank N.A. vs. Court of Appeals, et a!., G.R. No. 107434, October 10, 1997; ACCRA Investm ents Corporation vs. The Honorable Court of Appeals, et a!., G.R. No. 96322, December 20, 1991

DECISION CTA CASE NO. 7735 or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress. In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of the tax or penalty regardless of any supervening cause that may arise after payment; Provided, however, That the Commissioner may, even without a written claim therefor, refund or credit any tax, where on the face of the return upon which payment was made, such payment appears clearly to have been erroneously paid." (Emphasis supplied) Significantly, in the case of ACCRA Investments Corporation vs. The Honorable Court ofAppeals, et al. 21 , the Supreme Court said that the reckoning of the two-year prescriptive period for the filing of a claim for refund or tax credit of excess income tax paid/withheld provided in the above-quoted provision should commence from the date of filing of the final adjustment return. As previously mentioned, the amount that can be a proper subject of a claim for refund on the basis of Section 76 of the NIRC of 1997 is the claimed excess creditable withholding taxes for taxable year 2006, for which petitioner filed its corresponding Annual Income Tax Return on March 29, 2007.22 Counting from this date, petitioner had until March 29, 2009 within which to file its claim for refund or issuance of tax credit certificate for taxable year 2006, both in the administrative and judicial levels. Petitioner's administrative claims for refund were filed on February 20, 2008 and August 31, 200723 ; while its judicial claim via the instant Petition for Review was filed on March 10, 2008. Clearly, both the administrative and judicial claims for refund were filed well within the two-year prescriptive period. Hence, the V first requisite was met by petitioner. 21 G.R. No. 96322, December20, 1991 22 Exhibit "C" 23 Par. 5, Stipulation of Facts, Joint Stipulation of Facts and Issues, docket, p. 57

DECISION CTA CASE NO. 7735 In establishing its compliance with the second requisite, petitioner submitted Schedules of Creditable Withholding Taxes Claimed24, Details of Creditable Taxes Withheld25, and Certificates of Creditable Tax Withheld at Source (BIR Form No. 2307)26; which were examined by the Comi-commissioned Independent Certified Public Accountant (CPA), Ms. Myra Celeste 0. Dabalos. In her final report, Ms. Dabalos noted a PO.ll rounding off difference between the creditable withholding taxes reflected in the Certificates of Creditable Tax Withheld at Source and the amounts shown in the Schedule of Creditable Withholding Taxes, computed as follows: 27 Creditable Tax Withheld Per BlR Form 2307 p 5,003,897.08 Less: Creditable Tax Withheld per Schedule Difference 5,003,896.97 p 0.11 However, after a thorough scrutiny of petitioner's documents, this Court found that the following certificates with creditable withholding taxes in the amount of P8,525 .69 were not duly signed by the respective payors/withholding agents: EXHIBIT PAYOR CWT R-235 QSCV Corp. - Sumulong p 4,663 .77 R-288 Tan, Robert Sy - Aurora R-292 Tan, Robert Sy - Anonas 1,460.81 2,401.]] -- TOTAL p 8,525.69 Therefore, petitioner was able to prove the fact of withholding only as to the amount ofP4,995 ,370.31, computed as follows : Claimed Creditable Withholding Taxes P5,003,896 .00 Creditable Withholding Taxes supported by certificates 8,525.69 Less: without signatmes from the withholding agents P4,995,370.31 Properly Substantiated Creditable Withholding Taxes This Court shall now ascertain petitioner's compliance with the third requisite.?-.- 24 Exhibits " 0 " and " P" 25 Exhibits "Q" and " R" 26 Exhibits "Q-1 " to "Q-284" and "R-1 " to " R-353" 27 Exhibit "V", pages 3-4, Item No.6

DECISION CTA CASE NO. 7735 Based on the documentary evidence presented, petitioner's reported gross income in its Annual Income Tax Return for taxable year 2006 amounted to P201 ,584,012.0028, broken down as follows: REVENUES AMOUNT Sale of Services p 196,914,951.00 Miscellaneous Income 4,669,061.00 TOTAL P201,584,012.00 On the other hand, the total income payments for the same year per BIR Forms No . 2307 amounted to P229,131 ,716.50, detailed as follows: 29 NATURE OF INCOME PAYMENT AMOUNT Management and consultancy p 3,001 ,262.82 Services/ Freight Prime/Sub-contractors 6,349 , 194 .26 Payment by top 10,000 corporations-services 140,090, 194.79 Payment by top 10,000 corporations-goods and services Payment by top 10,000 corporations 4,515,414 .67 Local suppliers 64 ,634,560.82 Rentals Refund-MERALCO 4,426,064 . 10 TOTAL 921,718.74 4,54 7,416 .00 645,890.30 p 229,131,716.50 From the foregoing, it is apparent that there is a discrepancy of P27,547,704.50 between the total gross income reflected per petitioner's income tax return vis-a-vis the total amount shown per BIR Forms No. 2307. Here, petitioner failed to reconcile such discrepancy. While the Independent CPA reported that out of the total income of P228,510,328.59 reflected per BIR Forms No. 2307, it was able to verify that the amount of P208,939,481.0430 was recorded by petitioner in its books of accounts and declared in its income tax return, this Court cannot confirm said findings due to petitioner's failure to present the source documents, such as invoices and official receipts, upon which the income amount ofP208,939,481.04 was based. 1.--- 28 Exhibit "C", line nos. 37, 54, and 61 29 See Annex "A" for details 30 Exhibit "T", page 3; Exhibit "V", pages 4-7

Decision ANNEX C.T.A. CASE NO . 773S HAVI FOOD SERVICES PHILS., INC. vs. COMMISSIONER OF INTERNAL REVENUE Page 1 of 2006 INCOME PAYMENTS PER BIR FORMS NO. 2307 Management & fro. R-1 R-2 :.,_. R:~ R-4 ~~,; R'5 R-6 R-7 R-8 R-9 ":.":____._-''"--~ R-10 R-11 R-12 R-13 R-14 R-15 R-16 ~ R-17 R-18 R-19 R-20 R,21 R-22 R-23 R-24 R-25 R-26 R-27 R-28 R-29 R-30 R-31 R-32 R-33 R-34 R-35 R-36 R-37..,. �.. R-38 R-39 . R-40 R-41 R-42 R-43 R-44 R-45 R-46 R-47' R-48 R-49 R-50 R:51 R-52 R: 53 R-54 R-5!?_ R-56 R-5Z. R-58 R~59 R-60

ANNEX Decision ..IQlQL C.T.A. CASE NO. 7735 HAVI FOOD SERVICES PHILS., INC. vs. COMMISSIONER OF INTERNAL REVENUE 179,35f!.( 2006 INCOME PAYMENTS PER BIR FORMS NO. 2307 316,146.~ Manaoement & ,. ~...;;. 103,996.! R-93 R-94 76,499.( R-95 R-96 ~-� ,... "" ,~ 40,22,6 ,( '" R-97 R-98 188,663.( R-99 _ .. R-100 309,579,( R-103 R- 104 :=::!�l:t'tl~id0~:=;:::.::::=:.:~=Ki:=~s:rkill~r;;rn:,;;~~:::...."234ii1' 439 R- 105 .; R-106 (;R-107 &:i.,:..;..;.;.:~l.iii:~;;.:;;~"Llo!t..;;;.; ---~~:.:...oc'";;~---u:.i:f�-_,..,...,,.__.,.;o.._*",..;.~~~~o:.~~----"""'..;;:;;,.-__~,..,,....,.~,;~;;~~~= .,____ 4?0,7.22.! R-108 242,862.: R-109 R-110 102,580.! 140,285:c R-116 20,720.( . 250,246 .] -.R:11? .~ii"li:~~~~~;;;?:S:.::f"~~~~~;:;~];;j;:;;;;::_::~z:;::;::;::;,;y;:::::;: 344,839.~ R-118 R-119 299,833 .< R-120 289,834.1 , 37,709,( 391,762.: 101,902.( 154,229 .< J02,623 :! 378,070.( 232,232;( 196,430.f 253,382.( 193,837.f 141,792.E 155,822.i 72,76o:c 73,876. 88,775:: 87,477 .3 , 123,58l.C 248,544./ 222,705.} 388,098. 388,098. 334,448.S ,.~-:~;" 358,317..0 262,338 .3 � - � � � - - - - - � �-'-�-"'""""'--��-'"'-� - - - - .. -~~~-""='""-265.427 ,6 183,915.5 ,.,:;.,,G;,,.n _ 5 , 1 6 � ..7 170,151.7 J44,(i66.'9 260,635 .1 310,3_43:5 212,549.1 .,701,40{1 150,409.1 . 164,568.6 124,341.9 Page 2 of

ANNEX Decision Payments Made by top C.T.A. CASE NO. 7735 HAVI FOOD SERVICES PHILS., INC. vs. COMMISSIONER OF INTERNAL REVENUE 2006 INCOME PAYMENTS PER BIR FORMS NO. 2307 Management & Page 3 of

ANN EX 1 Decision payments Made by too C.T.A. CASE NO. 7735 HAVI FOOD SERVICES PHILS., INC. vs. COMMISSIONER OF INTERNAL REVENUE 2006 INCOME PAYMENTS PER BIR FORMS NO. 2307 lQ.QQO.: Management & 367,245.60 Page 4 of

ANNEX Dedsion C.T.A. CASE NO. 7735 HAVI FOOD SERVICES PHILS., INC. vs. COMMISSIONER OF INTERNAL REVENUE 2006 INCOME PAYMENTS PER BIR FORMS NO. 2307 221,871.35 18~.~ 10 .00 306,073.41 Page 5 of

ANNEX Decision C.T.A. CASE NO. 7735 HAVI FOOD SERVICES PHILS., INC. vs. COMMISSIONER OF INTERNAL REVENUE 2006 INCOME PAYMENTS PER BIR FORMS NO. 2307 Payments Made by too f!!l. R-301 R-302 - jt~3P3~ R-304 ,.,:R~3os� ,_.... ,.R;:~::,~-A,..,;r~~~~)~,G<~_~.;__,;~~:..-~; R-306 :;::R: -30Z' R-308 "ilY309_ .. R-310 : ,::R:-311 _,-.," R-312 m"'rR.,;Jl~ ..,.::::::::~:r:.riiT;;r::s::::::::��;rr.'i0lWJl~;::::!:;JL:::::s�:'�z;:�;~~~:mJ::Um:::;;:~~m~rr:::~:;;:.;r;~~~ R-314 R-315 R-316 R' 317 R-318 e<~tRi3 19 R-320 :J:i'R-321 R-322 .. R� 323 R-324 : R-325 R-326 ' :(:1\.:327.� R-328 RC329 R-330 R-331 R-332 "':Rc333 R-334 :R'3J5 _ R-336 '!' R-337. "'<''�~' R-338 ........�"�-�''~*���~ ��"������' );R-339 ~::. _ R-340 _R,341 ��~ R-342 "'S:R-343 � R-344 R ~ 34 5 R-346 R-347 R-348 R, 349 R-350 :_;;::-R,J 51 ..'2;.;"~~,::-;,:t;,,.:.:.o.;.,.,,..,~~----~ R-352 R.;353 TOTAL Page 6 of

.,, .' DECISION CTA CASE NO. 7735 Page II ofl2 In view of petitioner's failure to prove that it declared the income upon which the substantiated creditable withholding tax of P4,995,3 70.31 for taxable year 2006 was withheld, the refund claim cannot be granted. At this juncture, it must be emphasized that a claimant has the burden of proof to establish the factual basis of his or her claim for tax credit or refund.31 Tax refunds are in the nature of tax exemptions. As such, they are regarded as derogation of sovereign authority and to be construed strictissimi juris against the person or entt.ty c1at.mm. g the re1.c.und.32 In recapitulation, since petitioner failed to comply with the third requisite of the refund claim as provided by law and jurisprudence, this Court is left with no recourse but to deny the instant claim for refund. WHEREFORE, the instant Petition for Review is hereby DENIED for lack of merit. SO ORDERED. AMfuL:_;~.~~dT.AN~G&~;/:;A-NA~LA#S-TAS Associate Justice WE CONCUR: ~~ OLGA PALANCA-ENRIQUEZ Associate Justice 31 Paseo Realty and Development Corporation vs. Court of Appeals, Court of Tax Appeals and Commissioner ofInternal Revenue, G.R. No . 119286, October 13 , 2004 32 Commissioner of Internal Revenue vs. S.C. Johnson and Son, Inc., eta!., G.R. No. 127105, June 25, 1999

... DECISION CTA CASE NO. 7735 Page 12ofl2 ATTESTATION I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opiniorilofthe Court's Division. UTISTA CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution and the Division Chairperson's Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. L~. eLn__ ERNESTO D. ACOSTA Presiding Justice