CTA Case No. 374 (Resolution)

ftEPUBLIC OP THE PHH.IPPIN t:OURT OF TAX APPEALS MANILA IPEI<DJIAN MERCHANDISING CO., C.I . A. CASE NO. 374 INC . , Pet itioner, - versus - COLLECTOR OF INTERNAL HEVENUE , Respondent . x - - - - - - - - - - - - - -x RES 0 LUT I 0 N This is in connection with the question of ~ adjudicata raised by respondent as an affirmative de- fense in his answer to the petition for review, pre- mised on the ground that the decision in B. T. A. Ca se No . 10 involving the same parties , same subject matter and same cause or causes of action operates as a bar to the present action. It appears that on January 11 , 1951 , the Col - lector of Internal Revenue assessed and demanded from the petitioner the amount of P97,502 . 25 as compensating tax, plus P200. 00 as penalty , on its imported gold chains valued at r331 , 908.29 which were melted and converted into gold bullion and subsequently -sold by it . After its request for reconsideration and with- drawal of the as sessment was denied by the respondent, the petitioner appealed the decision to the defunct Board of Tax Appeals , which appea l was docketed as B. T. A. Case No . 10. On May 6, 1952 , the Board of Tax Appeals af- firmed the decision of the Collector of Internal Rev- enue finding the petitioner liable for the payment

RESOLUTION - C. T.A. CASE NO o 374 - 2- of the c ompensating tax and penalty demanded ~ Subse - quently , the petitioner appealed this dec ision to the Supreme Court {G. R. No . L- 5772) but the latter dis - missed the appeal without prejudice in its resolution dated March 301 1954 . After this resolution had been become final and executory , the petitioner filed a pe - tition with the Supreme Court for the reinstatement of its appeal . Said petition was denied by the Supreme Court on March 21 1 1955 . As a last resort , the peti- tioner filed c . T. A. Case No . 107 with this Court but the same was dismissed on July 26 , 1955 on the ground of lack of jurisdiction . Thereafter , it moved for a reconsideration of said dismissal but the motion was denied on October 1, 1955c Our last mentioned order denying petitioner's motion for reconsideration became final and executory on November 27, 1955, no appeal having been interposed theretb to the Supreme Court. Finding itself blocked in all directions through fault of its own , petitioner, on November 3, 1955 , made a partial payment of ~5 , 000 . 00 of its tax liability amounting to ~}97, 502. 25 and subsequently requested for the refund of the same in its letter to the Collector dated November 7 , 1955 together with a request for the cancellation of the balance of the assessment . On April 10, 1957, the respondent denied the request for refund and., canc ellation of the assessment . Once more, on May 10, 1957 , petitioner filed the instant petition for review docketed as C.ToAo Case Noo 374 which involves the same parties, the same sub-

rlESOLUTI01 T - C.I.A. CASE NO. 374 - 3- B. I .A . Case No . 10 and C. I .A . Case No . 107 with the single exception that in the instant case refund is sought of the partial payment made in the amount of ~5 , 000 . 00 . The respondent in his answer of June 14, 1957, raised the affirmative defense that the deci- sion in B. I .P, . Case No . 10 operates as res adjudicata to the instant appeal. While the above-entitled case was pending trial before this Court , the respondent , on February 26 , 1958 , filed a motion for execution of judgment in B. T. A. Case No . 10 which was granted on July 16 , 1958 . The petitioner filed a motion for reconsideration of the afore - mentioned resolution of this Court whic h was denied on November 15 , 1958 . Our last mentioned order denying petitioner ' s motion for reconsideration is now pending appeal and resolution before the Supreme Court (G . R. No . L- 14791) . The only issue now before us is whether or not the decision in B. I . A. Case No . 10 which has become final and executory and which we have already ordered executed . in our resolution of July 16 , 1958 , operates as ~ adjudicata to the present petition for review. This Cour t c ould take judic ial notice of its own order of execution of the decision in B. T. A. Case No . 10 (Sec . 5 , Rule 123 , Rules of Court) . An examina- tion of the pleadings of the instant case and that of B. T. A. Case No . 10 shows that in both , it is the as - sessment of the Collector of Internal Revenue against

RESOLUTION - C. T.A. CASE NO. 374 -4 - tax , dated January 11 , 1951 , that is being disputed , with the single exception that in the present peti- tion for review , the petitioner , in addition to pray- ing for the cancellation and withdrawal of respondent ' s assessment against it, likewise asks for the refund of the sum of �5 , 000. 00 which it partially paid on the assessment . In other words , the petitioner would want us to review all over again the entire case over which there has already been a final decision on the merits by the defunct Board of Tax Appeals seven (7) years ago and which decision we have already ordered executed on July 16 , 1958 , by the clever expedient of now paying part of its adjudicated tax liability and then seeking its refund in the present action . When it lost its case in B. T. A. Case No . 10, disputing res - pondent ' s assessment for ~ 97,502 . 25 as compensating tax, the petitioner sought to revive the same in C. I . A. Case No . 107 and when this latter case was dismissed for having been filed beyond the statutory period of 30 days , the petitioner made a partial payment .. of .. the amount demanded , then took advantage of the remedy provided for in Section 306 of the National Internal Revenue Code , by sueing for the refund of the same , together with the request that the assessment be re- voked and cancelled. Now , here it comes to court claiming that the afore-mentioned cases are different from each other because the cause of action in one is not the same as that of the other; in the former , it

RESOLUTION - C. T. A. CASE NO . 374 - 5- our considered opinion that in arriving at a decision in either of the two cases , a ruling on the legality or illegality of the questioned assessment is necessary. In granting or denying the claim for refund , this Court must decide whether or not the disputed assessment was issued in accordance with law. Since said question has been finally decided in B. T. A. Case No. 10, the deci- sion of which had been subsequently ordered executed by this court on July 16 i 1958 , the question has become ill�21 and it would involve unnecessary loss of tLme and expense and no end to the series of cases filed by the petitioner involving the same assessment if we were to entertain once again the present appeal (Penalosa vs o Tuason , 22 Phil . 332) . It has been held that an admi- nistrative decision of the S panish Governor General constitutes ~ adjudicata if not appealed from ( Roura vs . Insular Government , 8 Phil. 214) . Moreover , in our resolution of July 16 , 1958 in B. T. A. Case No. 10 , a majority of this Court sustained the "Motion for Execution of Judgmen-e1 of respondent dated February 24, 1958 , on the ground that (a) the decision of the defunct Board of Tax Appeals on the merits i nvolving the same assessment had become final and executory; and, (b ) that under S ection 21 of Re - public Act No. 1125, this Court is empowered to execute the final judgments of the defunct Board of Tax Appeals which were not fully satisfied at the t ime said Board was dissolved With the creation of this Court under the provisions of Hepublic Act No. 1125 . While it is to

RESOLUTI C.I. A. C E iO. 374 - 6- be admitted that our resolution of July 16 , 1958 in B. T. o Case � o. 10 granting the "Motion for Execu - tion of Judgment" of respondent has been appealed by petitioner to the Supreme Court (G . � I'o. L- 14791) and iS now pending resolution therein, the presumption is that said resolution is in accordance with law and conclusive upon the parties until otherwise reversed by the Supreme ~ourt . It would be inconsistent on the part of the majority of this Court to now hold that we still have jurisdiction to hear on the merits the pre - sent appeal after having previously ordered the execu- tion of a final jud ment on the merits of the defunct -oard of Tax ppeals involving the same parties , the same subject matter and the same cause or causes of actiono \HEREF {E , in view of the foregoing considerations, the 11 Petition for 1 eview11 filed by the petitioner on vay lc , 1957 , in the abo~e - entitled case should be as it is hereby dismissed, with costs against the petitioner. S 0 OH.DEJ.Uill � i1anila, December 29, 1958o ~ rliAI 0 -1 ABLE Presiding Judge