COMMISSIONER OF INTERNAL REVENUE v. FABTECH EXPORT INDUSTRIES, INC.

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY ENBANC COMMISSIONER OF INTERNAL CTA EB NO. 1176 REVENUE, (CTA Case No. 8435) Petitioner, Present: -versus- DEL ROSARIO, el FABTECH EXPORT CASTANEDA, JR., INDUSTRIES, INC., BAUTISTA, UY, Respondent. CASANOVA, FABON-VICTORINO, MINDARO-GRULLA, COTANGCO-MANALASTAS, and RINGPIS-LIBAN, JJ. Promulgated: MAY 2 9 2015 RESOLUTION DEL ROSARIO, PJ. This resolves petitioner's "MOTION FOR RECONSIDERATION (Re: Decision promulgated 28 January 2015)" posted on February 24, 2015, with respondent's "COMMENT" filed on April20, 2015. In her motion for reconsideration, petitioner argues that a valid preliminary assessment notice (PAN) was duly sent to respondent through registered mail. A photocopy of the mailing envelope containing the PAN was attached to the present Petition for Review. Petitioner is insisting that the Court En Bane should have considered the said documents as proof of transmittal, pursuant to BP1-

Resolution Commissioner of Internal Revenue v. Fabtech Export Industries, Inc. CTA EB No. 1176 (CTA Case No. 8435) Family Savings Bank, Inc. vs. Court ofAppeals, et a/. 1 Petitioner further claims that the presence of the original copy of the envelope in the BIR records proves the transmittal of the same through registered mail. Lastly, petitioner maintains that since she sent the PAN to respondent through registered mail and presumed that it was received by respondent pursuant to Section 3(v) of Rule 131 of the Rules of Court, she complied with the due process requirements of law. In its Comment, respondent contends that the Motion for Reconsideration should be denied as the grounds raised by petitioner are a mere rehash of the arguments raised in her Petition for Review which have been carefully and exhaustively resolved by the Court En Bane in the assailed Decision. The Court En Bane agrees with respondent that the contentions presented by petitioner in the subject Motion are a mere rehash of its previous arguments which have been duly considered and adequately discussed in the assailed Decision. Thus, the Court En Bane finds no cogent reason to modify or reverse the assailed Decision. To stress, pursuant to Section 228 of the National Internal Revenue Code (NIRC) of 1997, as amended, and Revenue Regulations No. 12-99, receipt of PAN by the taxpayer is indispensable to due process. As the Court En Bane noted in its Decision: " xxx [P]etitioner failed to present substantial evidence that the PAN was indeed mailed or sent and that the same was received by respondent. Records reveal that petitioner merely alleged that the PAN dated February 25, 2011 was sent to respondent by registered mail. Petitioner, however, failed to present independent evidence, such as the Registry Receipt or a certification from the Bureau of Posts, which could have easily been obtained. It is basic in the rule of evidence that bare allegations, unsubstantiated by evidence, are not equivalent to proof. As aptly ruled by the Second Division in the assailed Resolution: "It is clear from the foregoing that even the mere fact of mailing, release or sending of the notice must be proved with clear and convincing evidence and not just bare allegations of such facts. 1 G.R. No.122480, April 12, 2000.

Resolution Commissioner of Internal Revenue v. Fabtech Export Industries, Inc. CTA EB No. 1176 (CTA Case No. 8435) The records of this case bear out that respondent (herein petitioner) failed to present any evidence to prove that the Preliminary Assessment Notice was indeed issued against petitioner (herein respondent) and that the same was sent by registered mail. Further, respondent has not even forwarded to this Court a copy of the Preliminary Assessment Notice in connection with the Letter of Authority No. 200800007920. As pronounced in the assailed Decision, respondent only issued PAN against petitioner in connection with Letter of Authority No. 2009 00010290, to wit: " xxx. It is worthy to note that the Preliminary Assessment Notice attached in the record was issued in connection with the Letter of Authority No. 2009 00010290.' Since respondent cannot prove the existence of the PAN or the fact that it was mailed, released or sent to petitioner, it is clear that respondent violated the required due process on the issuance of the assessment notice." Furthermore, the Court cannot give probative value to the photocopy ofthe alleged PAN and alleged mailing envelope attached to the instant Petition for Review considering that the same were not formally offered during trial, in violation of Section 34, Rule 132 of the Revised Rules of Court." Verily, in the absence of a valid service ofPAN, respondent's right to due process was violated, rendering the assessment null and void. WHEREFORE, premises considered, petitioner's "MOTION FOR RECONSIDERATION (Re: Decision promulgated on 28 January 2015)" posted on February 24, 2015 is hereby DENIED for lack of merit. SO ORDERED.

Resolution Commissioner of Internal Revenue v. Fabtech Export Industries, Inc. CTA EB No. 1176 (CTA Case No. 8435) Page 4 of4 WE CONCUR: ~~';4 c. CY-...-..c.~t_ ~. CAES~SANOVA Associate Justice J{JA.NITO C. CASTANEDA, JR. Associate Justice f\Q��-~�' i,_,r_:,�:':��: .:,-~,- '~ ERLINDA P. UY Associate Justice ~ N.M~~ .. 6"'~ CIELITO N. MINDARO-GRULLA Associate Justice ~.t"n._.j\.,I L ' .c.;,� 'I..� ... , AMELIA R. COTANGCO-MANALASTAS Associate Justice ~.~~---~~ MA. BELEN M. RINGPIS-LIBAN Associate Justice