CTA Case No. 2033 (Resolution)

�'EPU"LIC OF THE PHILIPPINEa COU RT OF TAX APPEA:L8 QIJEZON CITY LUZON CENENT COR OR.t1.TION, - etitioner, -versus- c . T . ~ . c~ E No . 2033 CO~.U:vU S ' IONEB OF I NTERN... 1 REVENUE, Re spondent . x- - - - - - - - - - -x RES 0 1 U~ I 0 N This is a 11Iv:otion t o Dismiss" pe ti t ioner ' s appeal from an alle ged decision of r espondent dated July 9, 1969, denying petitioner ' s protest against . a ruli ng of respondent holding s ales of cement by manufacturers thereof subject to the sales tax under Section 186 of the National Internal Revenue Code . Briefly, the facts are: Pe titioner is a corporation d uly organi zed and existing under the laws of the Philippines engaged in the manufacture and sale of cement . On J uly 29, 1968, petitioner and other cement rr~nufacturers, in a conference held in t he office of respondent, were informed of t h 2ir li~bili ty to t he 7Jj sales tax prescr ibed in Section 186 of the Revenue Code, as amended , on t :1eir sales of cement. In t his con- fer e nce it was agreed tha t petitioner, to ge t her with t he othe r members of t he Cement Associa tion of t he Philippines, would file t he ir memoranda in support of t heir contention that they are not liable to the t;J)

RE.SOLUTI ON - CTA C~SE NO . 2033 2 sales tax . ~ccordingly, petitioner and t he other cement manufacturers, in pursuance of this agreement, file d v:i th responde nt their memorandum dated Septem- ber 5, 1968 ( nnex D 11 11 ), supplemental memorandum dated ceptember 11, 1968 (Annex E 11 11 ), and their second supplemental memorand um dated February 27, 1969 (Ann~x H 11 11 ) . In a letter da ted July 9, 1969 (Annex 11 Jt1), received by petitioner on July 16, 1969, � responje nt reject3d the petition of cement manufac- turers that they be hel d not subject to the sales tax on their sales of cement. From this decision , peti- tioner, on .1: ugus t 13 ~ 1969, filed with this Court the present petition for r eview. Respcndent has filed a motion to dismiss the herein appeal on the follo-vJing grounds : (a) that t his Court has no jurisdiction over the subject matter of the action; (b) that the petition for review i s pre- mature; and (c) that it c~o es not state a sufficient cause 'of action. The motion i s predica ted on t he fact tha t since r espo ndent has not made an actual assessment against petitioner ano that res ponde nt has merely indicated an inte ntion to make an assessment against petitioner for the sales tax on its sales of cement, the present appeal do es not state a cause

::U:!:SOLUTION - CTA C�- JE NO. 2033 3 �of action. Petitioner, however, insists that notwithstand- ing the absence of an actual assessment, respondent ' s letter dated July 9 , 1969 , de nying petitioner's pro- test against the alleged contemplated assessment to be made by respondent, is an appealable decision be- cause it is embraced in the phrase 11other matters arising under the National Internal Revenue Code or other law or par t of lavl admini.s tered by the Bureau . of In ter nal l\evenue . 11 (Section 7 , parag r aph (1), Rep . -c t No� 1125. ) It is argued that the law does not require t hat actual assessment be made for t his Court to acquire juri-sdiction; it is enough that there be a 11decision 11 involving any matter� arising under the National Inter- nal Revenue Code or other lavl or par t of law adminis - tered by the Bureau of Internal Revenue . It is fur- ther contended that respondent can be restrained by prohibition from ~roceeding with t h e proposed assess- ment b ecause the contemplated action is illegal and contrary to la~. ~ccordingly , it is prayed that said proposed assessment be also declared illegal . Pe titioner ' s contention is untenable. 'l'he per- tinent portion of Section 7 of Republic Act No . 1125 provides~

RcS0UffiCt1 - CTI. C SE KO . 2033 4 Sec . 7. Jurisdi ction . - The Coui~t of T<:;.x �~pp:als sL.-~11 exerci.se exclusive 'lp- pellate jurisdiction to ~eview by 2ppeal , as he rein o:rovic'ed - (1) De c isions of t�~ Commissio~e:r of Internal 1evenue in case~ involvinn dispute~ essessmen ~ s , refunds of i. ternal r~venu~ taxes , fees or otl~r cterges , penalties im - pose~ in relatio~ ttc~eto , or other Matters a -rising under the National Inte.�r'n2 l l.evenus L.ode or other law or part .of law adminis- tered by the i-Jure r1u of Int e rna 1 Revenue . TLe phrase "decisions of tl:e Commissioner oi In - ternul Revenue in cases involvin] dispute . assess- ments" refe~s to actu?l essessments or a ctual deter- minations of t'lx liabili ty , an~ does not inclurle pro - pose or contemplatec assessments . Tl~ c ourt cennot waste its time ac.j udicating f enciec' or hypothetica 1 c 2 se s . As wa~ aptly heir in previo~s c ases (Ventanilla . Tex ,... , ~peals , 98 Phil . 988 , Unre �\ ' l..O.i - lector of Int<::rnal 0 evenue v ~ I3enip2YO ' G- n. I:o . L- 13656 , Janu2ry 31 , 1962 ; see also Bull v . U. S. 295 u. s. 247, , the wor nassessment' as used in tlie lavv , is one \Nhi c L etermines <' l1c1 fixes the tax liability of a t,xpeyer , an~ give~ rise to an obli12tion to pay the . amount asscsse~ anrl rlemande � It mu st be actual and fin 1 ( Di.onisio q. Lcr.tin v . Cornmissior,e:r. of Internal P-ever~ue , CT 'l, C8 se I�lo . 1951 , April 10 , 1969 , ::~nd tbe

3Ti''"01UTION - CT.A. C.. �'E NO. 2033 5 decision to be appealable must be a decision on a disputed assessment . (Commissioner of Internal Reve- nue v . Villa , G. R. No . 1- 23988 , January 2, 1968 .) In t his case , petitioner seeks a declaration by t his Court that the opinion of respondent as to its sales tax liability is not in accordance with law and th~t respondent be enjoined fr om r~ing an assess - ment against petitioner . The herein appeal seeking to declare respondent �s opinion a s contrary to law is in effect a~1 action for declaratory relief which is not autho rized by law . (See Na tional Dental upply Co . v . Mee r, 90 Phil . 265; 10driguez v. Blaquera, G. R. No . 1- 13941, Sept . 30 , 1960; La Perla Cigar & Cigare tte Factory v . Sec . of Finance, O. T. A. No. 1892, l1ay 29, 1968.) As an action for prohibition or in- junction, t his Court has no jurisd i ction to entertain the same . The authority of t his Court to issue wri ts of prohibition or injunction is merely ancillary to and in furtherance of its appel late jurisdiction. (Collector of Inter nal l evenue v . J . c. Yuseco , et al . , G. R. No . 1-12518, �october 28 , 1961 . ) In the case just cited, the Supreme Court held: I~. vrl:'lere does the l aw expressly vest in the Court of Tax 1ppeals original jurisdiction to is sue writs of prohibi-

RESOLUTION - CT l. CA8E NO . 2033 6 tion and injunction independently of, .and apart from, an appeaJ..ed case. The \vri t . of prohib ition or injunction that it ma.r issue under the Drovisions of sectiot1 11, Republic ct .1.- No., 1122.,_ to suspend the col- lection of taxes, is merely ancillarY to and in furtherance of its appellate juris- diction in the cases mentioned in section 7 of the Act . The pov1er to iss ue the writ exists only in cases appealed to it. Th is is reflected in tho explanatory note of the bill (House Noo 175), creating the .Court of Tax .i4.ppeals. 1w1Jr:HEREF'ORE , the present petition for review is hereby dismis s ed , without pronouncement as to costs � ... 0 ORDERED . r uezon City, � November 2~ , 1969. ~~ EOl-'l }.N H . Dl1ALI) Presiding Jud ge � 1tJE C O:~C UR: