CTA Case No. 5153 (Resolution)

REPUDL I C OF HIE PI-II LIPPI NES COURT OF TAX APPEALS QUEZON CITY MARVIN L. I-IERRERA, C.T.A. CASE N0.5153 Petitioner, COMMISSIONER OF INTERNAL REVENUE, Rl>spondl"nt. X- - - - - RESOLUTION Bl"fore us is a Motion to Dismiss filed by respondl"nt on July 5, 1995 on the ground of lack of cause of action . and for premature filing of the petition thus vesting no jurisdiction upon this Court to take cognizance of the same. Rl>spondent initially raised the issue of l~ck of jurisdiction as an affirmative defense in her Ans wer filed on December 12, 1994 alleging among othl"rs that the petition for review filed on September 26, 1994 "does not show that a final decision appealable to this Honorable Cour~ has already been issued by the respondent on the protested tax assess�ent" thus this Court is without jurisdiction to hear and decide the present petition. Subs~quently, ,~espondent filed a Motion to Dismiss raising the same issue of lack of jurisdiction. 60 8

RESOLUTION C.T.A. CASE N0.5153 - 2- This CouJ~t is unable to tackle the issue of lack of jurisdiction alleged by the resppndent in her Answer and Motion to Dismiss because of the repeated failure of the petitioner to enlighten us on the question of whether or not he received a final decision of .~e s pendent with respect to the protest filed by him. The petition by itself merely mentions that petitioner received a 1et t er from the BIR which stated that petitioner failed to present additional evidence to support its hence, the original assessment was �~e iterated and considered due and � collectible. This letter allegedly issued by the BIR was not annexed to the petition, thus the Court has no way of analyzing whether this supposed 1 et t er is to be considered a final decision which is appealable to this Court. The apparent disinterest of petitioner to pursue his case is sh own by his failure to sub�it a reply to the answer of respondent as directed by the Court during the hearing held on February 28, 1995 <see page 33 of CTA records, Resolution dated April 24, 1995> and again his non-appearance during the hearing set to tackle the issue of lack of jurisdiction on May 24, 1995. The that led this Court to conclude petitioner's apat hy towards his case was his absence during the hearing held on July 21, 1995 which was scheduled to afford both 610

RESOLUTION C.T.A. CASE N0.5153 l - 3- parties the opportunity to their respective argu�ents and evidence with respect to the allegations contained in respondent's motion to dismiss. From the foregoing, this Court finds dismiss the case on the ground of failure to prosecute on the part of the petitioner pursuant to sec.3 of Rule 17 of the Rules of Court, thus: Sec.3 Failure to prosecute If plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time or to comply with these rules or any order of the Court, the action may be dismissed -- upon motion of the defendant or upon the Court's own motion. This dismissal shall have the effect ~f an adjudication upon the merits, unless otherwise provided by Court. <unde�~scot~ing supplied.> WHEREFORE, the _ petition f o�~ review is hereby dismissed for lack of interest and failure to on the part of the petitioner. SO ORDERED. ~�a~~ �uZN�l� ~ RAMON 0. DE VEY ERNESTO D. ACOSTA Associate Jt..1d Pt~es fd i ng Judge GRUBA Judge 611