CTA Case No. 2116 (Resolution)

REPlJnUC OF THE PHILIPPINES COCRT OF TAX AP.PEALS . QUEZON CITY BONI F CIO V ~ !!:Am:o , C. I . A. CASS NO . 2116 etitioner , - ver::us - COHI:ISSIONER OF Ii'ITER~r;1L RE\/ENUE , X- - - - - - - - - - - - X R[ S 0 L UT I 0 N This refers to petitioner ' s motion for a res lution on rcs;~~dent ' s motion tu dismiss this case en jurisdictional grounds. On :.lay 31 , 1962 :petitioner rcce::.ved a- letter of respondent dated ,pril 27 , 1962 assessing him in the sum of i-'49 , 311.83 as cGramercial brcker ' s fix and pe.:cccntage taxes , ~)l.':s s~ucharge 2.nd the sum of !f5 , C'OO uS ecmpr'omise penalty f'H the years pe~:~ione~ ~rctcs~ed the assessment. In a letter tc petitioner ' s counsel dated August 3 , 1962 re- spondent denied the ~rot?st an~ requested said counsel 11 J.:hat you urge Y0'H client to set-~ l e 11 said amount "in. order ::.:hat this c._.::-c may be closed �11 In & letter d&ted August 23 , 1962 pc~~ti~ncr rc- quested a rC'invostigation but this was like1Nisc dEnied by respondent i n a letter dated September 2 ~, 1962 receipt of which \Vas ack.1owledged by peti-

RESOLUTION - CTA CASE NO . 2116 2 letter of acknowledgment petitioner r equested a reconsideration of the denial of September 21 , 1962 . Respondent ' s pretention i s that the letter of denial dated September 21 , 1962 was final in nature and petitioner should have appealed from it wlthin thirty days from October 5, 1965 when petitioner re- ceived same and this petition which was filed on May 12 , 1970 is out of time. It appears that this case is one of a number of cases involving the same issues handled by the same co unsel . In the communications between them , respondent and petitioner ' s counsel sometimes dealt wi th said cases jointly and not separa~ely . Re- spondent �s letter to petitioner ' s counsel dated Sep- tember 26, 1962 runs as follows : With reference to your various letters for and in behalf of your various clients , appealing from the assessments � of this Office against them for broker's fixed and percenta6e taxes in relation to their business dealings with the Interna- tional Harvest er MaCleod , Inc . I have the honor to inform you that your administrative appeal for and in behalf of said clents will be held in abeyanc e pending resolution of the issues on a similar case which was appealed by you to the Court of Tax App eals . In order to resolve once and for all the factual and legal issues arising from the judicial appeal of one df your clients , this Office has decided to deny your re- quest for an administrative hearing of each of the cases of your various clients which are similar to the case elevated by you on appeal to the Court of Tax Appeals .

RESOLUTION - CTA CASE NO. 2116 3 In a letter dated January 8 , 1963 respondent notified petitioner that its request for reconsider- ation will be given due course provided it exe- cuted a waiver and in a letter of the same date , respondent advised the Re gional Director of San Fernando, Pampanga that petitioner ' s protest was pending decision. Subsequently, petitioner sent to respondent the required waiver dated January 19~ 1963. In a letter dated August 2 , 1968 res pondent asked petitioner to extend the period of the waiver of the Statute of Limitation to December 31 , 1972 and petitioner complied with the demand extending it to June 30, 1975. Respondent ' s position that the denial of Sep- tember 21 , 1962 was flinal in tenor is not in conformity with the evidence adduced by the parties and the records of this case. In said letter respondent merely reques ted petitioner ' s counsel to tturge your client to pay" the amount assessed "in order that the case may be closedn which scar cely connote finality. On the other hand , respondent clearly manifested that resolution of petitioner I s motion for reconsideration was being held in abeyance . The least that can be said in this respect is that respondent , granting arguendo that he intended the denial of September 21, 1962 to be final , reconsidered the finality of

RESOLUTIO CTA CASE NO . 21 16 4 said denia1 (Torres vs . Comrn . of Int . Rev., C. T. A. CASB No . 21'18 , Resolution of January 30 , 1973) . Thus , -r.:re are of the persuasion that the thirty- day pSriod for appeal to the Court of Tax Appeals can not be counted from notice of the denial of September 21' 196.2 . We further note , however , thit paragraph XII of the petition for review alleges that - Not-v.ri thstariding the fact that no final decision has been rendered by the respondent on petitioner ' s protest and/ or request for reconsideration, this petition is being filed by petitioner in view of information received from the Bureau of Internal =>evenue that a \IJarrant of Distraint and Levy may be served upon petitioner , x x x. Aside from this admission, it may also be said that there is nothing in the record of this case to shovJ" that any such final decision has been rendered by respondent . 'Ti'Jhile a warrant� of distra int and levy is equivalent to a denial of a pending motion for reconsideration or reinvestigation (Frederick L. Hahn vs . Comm . of Int . Rev ., CTA Case No . 1937, Resolution of April 30 , 1969) , it is so only \vhen the Commissioner has not actually taken any action on the motion or request f or reconsideration. (Gepte vs . Comm . of Int . Rev ~, CTA Ct::.se No . 1 511 , Resolution of March ~1 , 1971 . ) In� the instant case , there is even no showing that a \�larrant of distraint and levy had actually

R1~SOLU~f.!ION - CTA CAS~ NO. 211 6 5 been issued . Under the circums t ""nces , this pe titio n for review is premature . 11/HE 1 OitE , the petit ion for revie'l.�J is hereby d is missed for being premature . \�li thout pronounce - ment as to CO$ts . SO ORD;E}1ED . ~~uezon City , larch 1 5, 1974. 1--- j~< ' L'Ato~f/.JA{LVLRf$-- 'hON L. 1 VAI~CK'{A _. ; Associate Judge Associate Judge /'