CTA Case No. 6007 (Decision)

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY PETER C. UY, doin g business undet� the name, firm or style of RITZ ENTERPRI SES, Pe titi o ner, - versus - C.T.A. CASE NO. 6007 THE COMMISSIONER OF CUSTOMS and Promul gated : THE DISTRICT COLLECTOR OF CUSTOMS, MANILA INTERNATIONAL CONTAINER PORT (MICP), Res pond e nts . X ----- -- --- -- - ---- ----- - ------ - - --- - -- - -- ------ --- --- -- ----- X DECISION T he case at bar seeks fo r th e reversa l/se ttin g as ide o r the dec ision of the Commiss ione r of C usto ms dated Decem ber 8, 1999, a fnrmin g th e dec is ion o f th e MIC P Di strict Co ll ecto r dated August 13, 1999, whi ch o rd ered th e forfe iture in favo r of th e Gove rnm ent th e subj ect importati on. As re prese nted, Pe titioner P ET ER C. UY , is a f-' ilipino, of legal age, do ing business und er the name, firm or style of RI TZ ENT ERPRI SES, w ith office address at Edi son A ve nu e, Paranaqu e C ity. On March 5, 1999, the shi pment in ques ti on a rri ved a t the MI C P on boa rd th e vessel "Yangj i" w ith Bill of Lad ing N o . 5294538 0 <:n d for whi ch Impo rt Entry No. 19724 -99 was fil ed . Subj ect of A lert Order N o . A/MI/030399-02, th e shipme nt was Sf2

r DEC ISION - CTA CASE NO . 6007 PAGE 2 subjected to a I00% exa minatio n, th e res ult of whi ch yie lded motors of three (3) di ffe rent sizes ( 182W-l/4 l-IP, 375W-l/2 HP and 3/4 l-IP), co ntrary to Petitioner-consignee's dec larati on of 2.700 ctns. of Industri al Supp li es and 2.700 sets o f Mini M otor A04 524 - 25 W . O n Ma rch 30, 1999, a wa rrant o f seiz ure and d istra int (WS D) was iss ued against th e shipmen t. O n June 9, 1999, Petiti oner fi�lect a fo rm a l offer of settl ement. A fter evaluation, the C ustoms Di stri c t Collector's Offi ce iss ued an Order accep tin g th e same on Jun e 2 1, 1999 . B ut befo re th e offer co uld be ac ted upo n by the C ustoms Legal Serv ice, Petiti oner w ithdrew the settl e ment offer and th e case was re turn ed to the D istri ct Co llector. Durin g the co ntinuati on of th e se iz ure proceed ings o n A ugust 9, 1999, Petitioner co nfi rm ed its w ithdrawal o f th e settl ement offer and proceeded w ith the presentati on of its docum entary ev idence . Wit hout presenting any testim oni a l ev idence, Petiti oner rested and s ubmitted the case for decision. On A ugust 13, 1999, Mr. Fell pe A. Bartolome, Dis tri ct Co llector of C usto ms, MI CP, rende red a dec ision on th e above se izu re case, o rde rin g the forfe iture of th e s ubj ect importa ti o n, th e pe rtinent porti on of whi ch states, to w it: "A ft er du e eva luatiOil.,fllld care ful stud y, we find th at c la im ant has not sati sfac to ril y proved th at it~ ; shipm e nt sho uld not be he ld liabl e as cha rged, and tha t it has not incurred the li ability of forfe iture unde r th e law. Its !i defense tha t it merely reli ed on the SGS-C RF fo r the shi p ment a nd that it is in good fa ith beca use of (sic) is insuffic ient to overcome the prim a fac ie ev idence of und e rvaluati on a nd mi sdecla rati o n o n reco rd . WJ-IEREfOR E, by v irtu e o f the power ves ted in me by law, let the above desc ri bed shipment be FO RFE ITED in favo r of th e governm en t, the same to be d isposed of in th e mann er provided by law. 13

DEC ISION- CTA CAS E NO. 6007 PAG E 3 XXX XXX XXX SO ORDERED." On D ecember 8, 1999 , th e Co mmi ssioner of C ustoms, affirmed th e afo resaid decision of the District Co ll ecto r of C ustoms, M ICP, thus : "After eva luatin g the facts as presented and th e ev idence on record, We fi nd no cogent reason to di sturb th e fin d in gs of the District Co llector. C laimant's reli ance on th e SGS -CRF iss ued for the shipment and that it is in good faith is insuffi cient to overcome the ev idence o f misdeclaration and un dervaluati on as shown by th e records. T he shipment was declared as Mini Motor with a rated output of 25 W. However, th e res ult of the inventory yielded tha t the shipment actuall y contain mo to rs of different outputs, 182 W - 114 HP, 375 W- 1/2 HP and 3/4 I-IP, a mi sdec larati on th at warrants forfe iture of the subj ect shi p ment. WHEREFORE, in view of the forego in g, the instant Appeal is here by D EN IED and the dec ision o f the D is tri ct Co ll ector dated August 13, 1999 decreeing the fo rfe iture of th e shipment under considerati on is here by AFF IRM ED . XXX XXX XXX SO ORDERED." Co nsequentl y, on February .8. 2000, Petiti oner fi led w ith thi s Co urt the instant .'�:.. , Pe titi on fo r Rev iew. .�.:: O n A ugLJ st 22. 2000, th e Sl.l b)ec~ importatio n consistin g of motors o f three (3) diffe re nt s izes was o rde red re l ea :;~;d by thi s Co urt to Petiti oner, after the la tte r pos ted a Ma nil a Insurance Co ., Inc. Surety Bond in favo r of th e Bureau of C ustoms in the amount of P6 I2,538 .00. 514

DECISION- CTA CASE NO. 6007 PAGE 4 On December 7, 2000, the case was submitted for decision based on the pleadings filed and the Customs records of the case. Jn assailing the legality of forfeiture, Petitioner argued that he is not guilty of misdeclaration and undervaluation of the importation . He claimed that in preparing his Import Entry No. 19724-99, he merely relied on the ac,�ompanying Societe Generale de Surveillance (SGS) - Clean Report of Findings (CRF) No. CHN 4600 I7 (Annexes E and F, Petition for Rev iew), hence, it will be a mi stake to accuse Petitioner of any wrongdoing and the forfeiture of hi s importation . Further, he asseverates that SGS not only ensures the inspected goods to conform to Philippine import regulations, it also verifies if the quantity and quality of the goods conform to contractual specifications agreed upon by the parties, which comprehensive inspection necessarily deter mi sdeclaration , s ubstitution and overshipment. Petitioner vehemently denies the alleged fraud stating that there was no ev idence to show that he had any knowledge or intention to make false representations in filling up the Import Entry. Likewise, Petitioner by invoking the decision of the Supreme Court in th e case entitled Farolan vs. Court of .. Tax and B u h a )� :�j";'.p ! d i n g , 217 298, asseverates th e following : Appeals Bagong SCRA . 1) Where the importer(~ on :-; i gnee pr~pared the import entry on the basis of shippin~ doct!p1ent 'prpYid e~ by j he forei gn SUJ pli er or shipper there is good faith ancl .po frcl~IQ; � : , � '�"' :� .... .,, �. ~ ~ .: ' I ~. 2) The fraud contempJ4icci by law must be actual and not constructive. lt mu st be inten tio1~~~~ fl�a ud , consisting of deception willfully and deliberately done or reso rted to in order to indt'ce another to give up some right.

DECISION- CTA CASE NO. 6007 PAGE 5 3) There is no fraud, even if there is misdeclaration based on the use of the shipping documents prepared by the supplier, such violation does not warrant forfeiture for such act was not committed directly by the owner, importer, exporter, or consignee as set forth under the law. Moreover, Petitioner submits that the assailed dec ision of the Respondents were not supported by suf'Jicient evidence that would warran( the forf'eiture of the subject importat ion. l-Ie articulated that the actions of the Respondents were not in accordance with Section 253 5 of the Tariff and Customs Code of the Phi Iippines (TCCP), in,ji-a. \ Finally, Petitioner argued that since the matter in question involves the findings/reports of the SGS as evidence by the SGS-CRF cited earlier, the case should have been brought to the Bureau of Customs (BOC) - SGS Appeals Committee pursuant to Customs Memorandum Order (CMO) Nos. 39-92 and 3-95 and should not have proceeded as a se izu re case und er Section 2503 of the TCCP, in relation to Section 2530 of the same Code, quoted below: Section 2503. Uudervaluatiou, MisclaHlficatiou and Misdec/aration or iu Eut1y. - When th e dutiable value the imported articles sha ll be so declared and e ntered that tl1~� 1:!_uties, based on the declaration of the importer on the face of th e entry, WOL!ld be less by ten per cent (I 0%) than should be legally collected, or when ~ihe imported articles shall be so described and entered that the duties gij~:e4: pn the importe r's description on the face of the entry would be less bY. f~I(P.�r cent .(I 0%) than should be legally collected based on the tariff cla~s iti'�;:~tion, or }Vhen the dutiable weight, measurement or quantity of imHprteq i#q~}es is (o ~Jnd upon examination to exceed by ten per ce nt (I 0%) 01~� p1or� thai1' the' entei'ed weight, measurement or quantity, a surcharge s hall be collected from the importer in an amount of not less than the differe nce between the full duty and the estimated duty based upon the declaration of the importer no r more than twice 01 such difference : Proviclecl, That an undervaluation, misdeclaration in weight, measurement or quantity of more than thirty per cent (30%) between the value, weight, measurement, or quantity declared in the entry, and the actual value, weight, quantity, or 516

DE C I SI O N - CTA CASE NO . 6007 PAG E 6 m eas urement shall co ns titute a prima fa cie ev id ence of fraud penali zed under Secti o n 2530 of thi s Code: Provided, further, That any mi sdecl ared ot� und ecl a red imported articl es/items found upon ex aminati on shall ipsa fa cto be fo rfe ited in favo r o f th e Governm ent to be di sposed o f pursuant to the prov isio ns of thi s Code. Whe n the unde rva lua ti on , misdeclara ti on, mi sc lass ification or misdec laration in the im po rt e ntry is intenti o na l, th e impo rter shall be s ubj ect to the pena l prov ision und er Sect!o n 3602 o f thi s Code. Sectio n 2530. Property Subject to F01jeiture Under Tariff and Customs Law. - A ny vehicl e, vesse l o r a ircraft, cargo, article and other o bj ects sha ll , und er the fo ll owin g co nditi o ns be s ubj ected to fo rfe iture : XXX XXX XXX (f) Any arti c le the impo rtation o r ex po rtati o n o f whi ch is effected or attempted co ntrary to law, o r any arti c le of pro hibited importation o r ex po rta ti on, and all o ther a rti c les whi ch, in th e opinio n o f the Co llecto r, have been used , are or were e nte red to be used as instrum ents in the importation o r ex po rtati o n of the form er; XXX XXX XXX (L) Any artic le so ught to be imported o r exported : (J) XXX (2) XXX '\1! � \ � ..... ~ -�=;t:~�:~~ (3) On th e s tr e n g tl1. .() f . n fa lse dec la ration o r a ffid av it exec uted by ) ' th e ow ner, :.i!llpq rtc r, e?' po rte r o r co nsignee co ncernin g the importa ti o11.pJ ~�J.f~i arti cle; . . _r._ ~r~~\;~:~-- =::�-~ ;_: - -~~~ (4) On the strength pf a fal ~e invoice o r oth er documents exec uted by the owperi ' 'ill{pp'ftf;,i':;:~x porte r or consignee co n~~rt11pg the : ���: � .,., ...,. ' J - . � '" . . . . '~ '<�� ,, : _, ,. . . I I ..( ;. � � Im po rtati on or:ex J1ortatlon"of st1ch arti c le; and ~: ~ _J (5) T hro ugh any oth e r pract ice o r dev ice co ntrary to law by m ea ns of whi ch such arti c les was entered through a custo mhouse to the prejudice of the government.

DEC ISION- CTA CASE NO. 6007 PAGE 7 On the other hand, Respond ents maintain that there was prima facie evid ence of fraud in the mi sclecl arati on and/o r und ervaluati on of the subj ect shipm ent. They proc laimed th at it is undi sputed th at Petiti oner had dec lared the subj ect shipment as 2,700 ctns. of Industrial Suppli es and 2, 700 sets of Mini motor A04524 with rated output of 25 W, contrary to Respo ndents' examinati on and inventory whi ch showed that the shi pment actuall y consisted of motors o f different sizes and wa ttages, i. e., 182W-I /4 HP, 375W-l /2 l-IP and 3/4 HP (Petiti on, Annex A, p. 2; Annex C, p. 2; Annex E) which is a clear case of mi sdec laration and/or unde rva luati on. The Res pondents stressed that Petitioner's co ntenti on that there was no fraud since it merely relied on the acco mpanying Societe Ge nerale de Surveillance - Clea n Report of Findings (SGS-CRF ) is of no moment. They sa id th at the report itse lf states that the "computed dut ies payab le are for reference purposes onl y" and "Final Assessment is for the Philippine Bureau of Customs" pursuant to Customs Memorandum Order (CMO) No. 52-94 dated December 19, 1994. furth ermore, they arg ued th<\! ihe;citati on of the case o f Far�olan Jr. v. Court of Appeals, 217 SCRA 290 119~~~ j ~~ ~~.;~1ev~i1 t since the co nsignee therein made its entry .. ! ; ~:\;�:�;: \. ��:~� ~:�_,.; "':'. on the cjata prepared by Hs fore!~~~ ~;~ppl i c 1:~ or shippers. In thi s case, th ey said Petition~~ � ~ f � I:~ ~~ ':" '~ f~-~ : .�. .� ~ ,. � ~..it ., ,(_~ :~j . . .� ; . � �.. . �:;;::. "relieq" on the report of the SGS. whiCh i ~ p1erely an agent of the Bureq4 ."b f C ustpt~(::; :�.:,..A:<~ :'<.- :;,r:.~: ~~:~. Needless to state, it is uHim afely the co nsignee ' s ob li gat ion to pe rson al!.~ .� ...rify th . ' importati on conforms to our customs laws. Thus. they arti cul ated that to uphold Petiti oner's stance wo uld res ult in an absurd situati on wherein a mi sdeclared or underva lued shipment co ul d be " legall y imported" through the simpl e expedi ent of taking 51 6

DEC ISION- CTA CASE NO. 6007 PAGE 8 th e SGS-C RF at face value. lndeed. Secti o ns 25 03 and 2530 of th e T ari ff Code would be re nd ered ineffectu al and nu gatory. Las tl y, th e Respond ents likewise asseverated th at the re is nothin g in C MO 39-92 or C MO 3-95 cited by Petiti oner whi ch preclud es th e m from forfe iting the shipment pursuant to Secti on 2503 when th ere is prima fac ie e' '.idence o f fraud penali zed under Section 253 0(�) and (I) - 3, 4 and 5. They pro poun ded that the aforesaid CMOs m ere ly re fe r to the procedure to be undertaken w hen th ere is a qu es ti on rega rdin g the value and c lass iti cati o n o f th e shi pment as reported by th e SGS. The iss ue th at co mes to fore for our co nsideration IS WHETH ER OR NOT PETITIONER IS GU ILTY OF MI SD ECLARAT ION AND/OR UND ERVA LUATION UND E R SECT ION 250 3 O F TH E TA RI FF A ND C USTOM S COD E. A S AM END ED , TH U S SU BJ ECT ING TH E IMPO RTATI ON IN Q UESTION TO FORFEITURE UND ER PA RA G RA PH S (F) AND (L). SU B-PA RAG R, \PH S 3, 4 AND 5 OF SECTION 2530 OF TI-lE SAM E CO DE. �:.�. A rte r a c irc um spect stud y ol ~he . attendin g fac ts, th e di squi siti on o f the pa rti es, the ~ .. �.�. ~� ~ appli cabl e laws, rul es and rc ~~i tm i.�~ )s, th e ~o urt find s fo r th e Res pond ents. It is an undi spute9 fac~ �j�,; ;~!W�~qse ~~ ~a r that the importati on in question cons i stc~! .. ~ .. .� -~~ .. ~ - ~~�, __ __ -�:�.:.. ~ ; :~~: Jn o fmo ~o rs of di ffe rent sizes '1110 waH&ges, i.e., 182 W- 1/4 1-IP, 375 W- 1/2 li P a nd ~ i�� .: .. :,. ~~ ' .'';: >... : : �'.~ ;, '}.i . ~.: ~ ~ ) and not 2,700 c tns. of lndusfrial s uppli es and 2. 700 sets o f mini motui� AD 4 524 .,.:it'! .: ' ~- rated output o f 25 W as declared by Petiti oner in the import e ntry. Thus, the re was indeed an ap parent mi sdec lara ti on o f th e shi pment on th e part of Petiti o ner. T his co nsti tuted a primafacie ev idence of infringe ment o f the prov is ions o f the Tariff and C ustoms Code, 519

DEC ISION- CTA CASE NO. 6007 PA GE9 specificall y Secti on 2530, th ereo f, and prov ided suffic' ent bas is for th e se iz ure of the subject importation. lt should be stressed th at both parti es waived the ir rights to present evidence and mere ly submitted the case for decision on th e bas is of the records a nd pleadings. As to w ho has the burde n of proof in se iz ure or fo rfe iture proceedings is ex pli ci tl y a nswered by Sec ti on 2535 of th e TCCP, whi ch provides that the same shall li e upon the claimant, provided tha t the ex istence of probabl e ca use Jirst be shown before the filing of the forfeiture proceedin gs. The term " probable cause", which has bee n held synonymous with " reaso nab le cause", means less th an the ev idence which will justi fy co nd emnation. It imports a seiz ure made und e r circumstances whi ch wa rrant suspicion (Sanchez vs. Commissioner� of Customs, BTA Case No. 185, November 2, 1954, citing U.S. vs. One Bag of Paradis e and Choura Feathers, N.Y., 365 F. 301, 167, CCA 473; Associate Banking Corp. vs. Commissioner of Customs. ct. al., CTA Case No. 2448, August 6, 1976; M etropolitan Garment Corp. vs. Ramon Farolan, CTA Case No. � : -:: _:l Stcefl~"i[)c 3959, April 16, 1986; Mayer . �� .. , ' t orp. vs. l-Ion. Alfredo Pio de Roda, ct. al., ! CTA Case No. 2823, February I"' ' 987). Sa id Sec tion 2535 of the TCCP provides, ~i .; ,. th LI S: ,. ' . SEC. 2535. '�" .. In S~izure and/or FOJfeitit(�{!�.. In all Burrled' �;:;'FP-roof fo r proceedings taken the,' se'l�zl.{i�~ aiicilor .forfeiture o f any vessel,. \ ~l1icle; a irc ra ft , beast or arti c l e~' ~111der th e prov ision of the tariff and custo ms laws, the bunlcn of proof shall lie upon the claimant: Prov ided , That probabl e ca use sha ll be first shown for th e instituti o n of such proceedings and that se iz ure and/or forfe iture was made und er the c ircu mstances and in the manner clescribed in the preced ing secti ons o f thi s Code (e mphas is Ours). 52 0

DEC ISION- CTA CASE NO . 6007 PAGEIO As discussed above there was probable cause thus, it is incumbent upon Petitioner to p rove that hi s allegations are correct and th at the Respondents' asserti ons were wrong. Ironica ll y, Petitioner failed to discharge thi s duty . No evidence whatsoever was presented by Petitioner to support hi s allegations. He merely submitted hi s case on the basis of the pleadings and records. It is not am iss to mentio n that when an importer cha ll enges by legal steps the correctness or the validity of the actions of the Com miss ioner of Customs, the question to be decided is no t whether th e Co mmi ss ioner was wrong but w heth e r the importer was right, th e burden being on th e latter to esta bli sh th e co rrectness of hi s own intentions . In seiz ure and fo rfe iture proceedings, th e burden of proof lies upon th e claimant (see Feede1� International Line PTE., Ltd. vs. C ourt of Appeals, ct. al., 197 SCRA 843; Commissione1� of Customs vs. Stat Ferry, 227 SCRA 317). The good faith of tax assessors and the validity of their ac ti ons are presumed. They wi ll be presumed to have taken into cons iderat ion all th e facts to whi ch their atte nti on was ca ll ed. No presumption '.'>:~)~}~: ca n be indulged th at pub li c oflicia!s of th e state who have to do w ith the assessment of .. !:�� �...:,. ;~~ property for taxat ion w ill kn8~i ng l y v iol a te the duties imposed upon th e m by law (see . :: .. ; . fOf� Intc�:-p��ovincial AutoJ~us ~~; JS - C~ llectOJ� of Internal Revenue, 19 PHIL 290). : . . ., .. This is true in th e in stapt cas~. 'w!1ere�Re;ponde nt s' spec ial and affirmati ve defenses, H!t. � ' 'f ~ I, " ': ;I valid ity or w hi ch as slwwn }'romthe ~�ec~rds or the case, have the effe ct of null i: � lr Petitione r' s ca use of actio n, if not controverted by adequate and compe tent ev idence. Moreove r, in the recen t case e ntitl ed Com miss ion e1� of the Bureau of C ustoms vs. Selective Timber Export Philippines, Incorporated, CA-G.R. SP No. 47643, October 5~1

DEC ISION- CT A CASE NO. 6007 PAGE I I 11, 1999, the Co urt o f Appeals expli c itl y rul ed th at (I ) g, >Od fa ith canno t avo id forfe iture, as fo rfe iture proceedin gs are in the nature o f proceedin gs in rem and , directed against the res, and no t th e perso na, and (2) th e impo rt er ca nn o t simpl y s hift th e blam e o f the e rron eous o r de fec ti ve decl arati o n in the impo rt entry unto its suppli er, ove r w hich our co urts ha ve no jurisdi c ti o n. Pe rtin ent po rti ons of said deci sion are quo ted below: " Hence, th e Respo nd e nt ca nn o t s im ply shift th e blame of the erro neo us o r de fec ti ve dec larati o n in th e impo rt entry unto its s uppli er, ove r whi ch our co urts have no jurisdi cti o n and cann o t thu s asse rt th e ir coe rcive a nd puni tive authority - reaso n e no ugh fo r such s uppli e r to scoi nfully and contumac iousl y snap its fingers at o ur courts, whi ch can o nl y watch he lpl ess ly by, as right and justi ce are being systematicall y sub ve rted . To susta in the R espondent' s stance is to put o bedi ence to our custom s and tariff laws at th e m e rcy of the ex po rter o r s upplier, w ho, eve n as th e latter di sda inf ull y runs rin gs around th ose laws, bl atantl y act in co ns piracy with th e likes of respondent here in w ho pha ri sa ica ll y m ake an o utward show of fea lty to the sam e la ws, w hile in fact ingeni o usly vio la tin g th em. That w o uld be legal sui cide. That wo uld be to furni sh or equip th e law with th e very instrum ent of its own transg ression and undo ing . That would be to allow o r permit indirectly what th e law forbid s or pro hi bits direc tl y. x x x T hu s it is that to legal i~tJ:~nts and purposes, the res pond ent has fa il ed to o ve rco me th e prima fac ie :�vide nce of kn owledge, or scinter, th at the shipme nt in ques ti o n was fr~~d ule ntl y mi sdcc lared . N eedl ess to say, owing to th e resp o nd ent's fa il ~1 r~ t{l:'�ove rthrow thi s pri na fac ie pres umpti o n, suc h ~h()~ ~t.:dl,?e b c:\~1 J.pUrrees ucmI1aerdacotrerc.,o,nstru ed ,� t�h; � <,...�.,;.1..:.;�,: ,� now atta ined a co nclu sive or j ure et de ,,.... ,� t .. ~\.~~: j~~~-~::. I We do not thin k any di fferent co nc lu sio n o ught to be reached in th e case at ba,�: . � I the circ um stances of thi s case are o n a ll lo urs w ith the above-c ited case deci ded by the Co urt of Ap pea ls.

DECISION- CTA CASE NO. 6007 PAGE 12 Final ly. this Court stressed that it is in total acqUiescence with Respondents' contention that there is nothing in CMO 39-92 and CMO 3-95 which precludes the Respondents from forfeiting the shipment pursuant to Section 2503 of the TCCP when there is prima facie evidence of fraud penalized under Section 2530(f) and (1), 3, 4 and 5 of the same Code. IN THE LIGHT OF ALL THE FOREGOING, the decision of the Commiss ioner of Customs dated December 8, 1999, forfeiting the subject shipment in favor of the government is hereby AFFIRMED in toto. Accordingly, the Manila In surance Co., Inc . Surety Bond in the amount of P612 ,538 .00, which was earlier posted by Petitioner for the release of the said shipment is hereby ORDERED FORFEITED in favor of the Bureau of Customs - MfCP. No costs. SO ORDERED. ~jQ.o~ ERNESTO D. ACOSTA Presiding Judge J~�7- t. I � ~ . C~ HTI FI CATION .~. ~ ~ . ' r hereby certify that the above decision was reached after due consultation with the. members of the Court of Tax Appeals in accordance with Section 13, Article VIII of the Constitu ti on. /. ~&>� 0......-vL ERNESTO D. ACOSTA Presiding Judge 5~3