CTA Case No. 3897 (Decision)

u:ttvauc o� ' ttDIUPPtNr� 00\JRT OF TAX 4PP.EALS Q\.1 0 CJ!Y US$531,338 and HK$870 ONG TOR CHEO (PETER UY TONG) Petitioner, t' - versus - C.T.A. CASE NO. 3897 THE HON. COMMISSIONER OF CUSTOt-1S, Respondent. X- - - - - - - - - - - X DECISION Petition for review of the decision dated November 14, 1984 of respondent rommi~sioner of Customs which aff'rmed the forfeiture in favor of the Government of the foreign currencies consisting of US$531,338,00 and HK$870,00 seized fro~ peti- tioner Peter Uy Tong under Customs Case No. 84-31 (MIA S.I. No. 572-83) for violation of Central Bank Circular No, 365 in relation to Section 2530 of the Tariff and Customs Code. This case was submitted for decision on the basis of the pleadings and the records, As borne out by the pleadings and the records, and narrated by! the Acting Collector of Customs, Manila Inter- \ 376

DLC IS ION -� CTA ASE NO. 3897 .. 2 n H l: ion a 1 A :i r port , in h 1. ~:> de~ is :i. on dot c d 111n y ::. B , n 1 9 L1 , the facts tH~e: (pp. J62-165, CTA record.) ""hi~3 is a ~"e.i zure proc�'~ccU nqs aqairwt the above -- cap tio eo Gmounts f o a l ] e g e d v j o } - t i o n o f Ce r, t r CJ l 8 e. n k C i :r c u 1 a r N � 2 6 5 9 n s r.H.w n d e d , i n r e 1 a t i o n t o S e c tj o n 2 ') 30 ( f' ) o f tiH� rev .is tHi Tor l. f f n n d Cu u t o n, s Co de � The case st"'mmed fl'om !:.he inter-- ception 0f the above cur~cnc1~s fror the lugqagu of departing paAs~nger~ Peter U~ To ng, on May 2R 1 l9BJ ex PAL flight PR 310 bound for Hongkong. At the heor1ng of the cnse , Apollo Paz t estified 1 umonq ut her t h inys, that on or about 3:15 p.m., Saturday, t�1ay 28, 1983 while� in tho performance of hls duty as CGstom~J e x e mi n e r o r. PAL f 1 .i ~J h t Pn l 0 6 b o u r1(i for the United StatE�s, he noticed o n the X--ra y mordtor rectangular shapes aopearlng on the oGggage ~hat passed thru the said X-rs;; tha t he irnmedi:1�ely pi -po�nted th . baqgF..t�~ for ver.ifi.:ation, nnd theet;ilpon re- quesled the cnrrier-owncr who t urne d out tu be Peter Uy Tong to 0pen the same; that upon opening the 1uggage, h c s a \'i a co a t h n n 9 e e a n d i n s i de s u c h coat han~1er ere th. above ... ~:.tated cur r en c i e ~; no 1'1 sub j e c t of t hi~~ p l' o- c~e din gs; that he aEkei Mr. Peter U) Tono if he has any Central Can k permit a n d Mr. Tong answered in the ne~~ti v:; tha~ uno r further iGquiry, t.hc subject p~sseng~r (Peter Uy Tong) told him that he W8S going to the Unlte d St.nte~' of mari.ca together l'vil.ll hi::; v1ife; and, that Apollo Paz called the alt.ntion of Mr. lq nac io Nu~ez, Central Bank \

DECISION - CTA CASE NO. 3097 - 3- people and the Offi c.r-in-Charge of the Depart u re Ope ra tion Division, Capt. Vi ce n te Josue, Jr .) who in- structe d the bri nging of the pas se nger ,, a n d the luggage contai ni ng the currency to the Of fice of the Collector of Cus t .oms; thi s Cu s to mhouse, f or pr o per inventory and th ereupon the corre s - ponding seizure rec eipt was iss ued. Mes sr s. Jos e Rui viv ar of the Central Bank and Ignacio Nu ~e z cerro- bar � ted the testimony of Apol lo Paz on mat eria l points. More importantly, however , they (Ru i vivar an d N u ~ez) testified to the fac t that Peter Uy Tong to ld lhe m at the tim e of appre- hension t hat he was go inq t o use the money to buy a condominium unit jn Hongkong because of his expo rt-i mport busin ess. Up o n the other han d , the de fense cla im ed that while the suitcases co n- tain ing t he money wer e in the po ssessi on of dep arting �p asse nge r ~1r. Pet e r Uy 1 ong the fact is th a t the said foreign cur- r enci es were owned b y a group of non- resident alien-businessmen and we re brought in to the Philippines by a representative who is a Singaporean nationa l, nam ed Ong Tor Ch e o, which mo ney for a ll intent s and pu rpo ses wer e allocated fo r a business ve ntur e in thi"' country. fo substantiat e the ab ove claim , Ong Tor Cheo t es tifie d t hat he is e ng age d i n building anrl co nstrurt io n mate ri als i that he has ~ een tra velli ng to the Philippines for business purposes since J.9Bl; t hat he is the sol e owner of \ 38u

DEC IS HH~ .... - 4- Cll\ CASE r~O. )897 �' the HK $870 while ne us $531,-Ja.oo is O'flned by eiuht. (8) othE:-r f rier 1ds, all of w~1om s,re � oreJ~;ners and non- residents; that he and h~s e i ght fr.iendL IH:~v:i. nq r3hared the ~><~rr>c- D\.l~iifH:'Sf' objectlves, cont.r:i.but8d t.ne snid ::~mo unt: of I.JS$ 5j.l,338,00 purpobely to finGnr:e t h e i r p r o j e c e d c on do mi n 'i. u m b us i r1r3 r:; d in the Philippines together wit~ Willinm Gabaldon, a filipino stGck and eal estate broker; that Ong for Cheo to- g e t h f! � 1�1 i t h t h r� P. e ( �5 ) o f. t. he e 1 ~~ h L ( 8 ) r� c o n t r 1 b u t o r s :�; a e l y , Vo L. -! \' a n g P o h { Exh. 3 and 3�-A ) 1 GOB KHUU~J KOi< ( f 'l(h. 4 a n d L+ -� A ) a n d lfi 0 NC SI E S n.: C ( Cx h � r_, a n d 5 -A), arrived in the Phil ippines 1~v1ng 1v i t h t h e rn t. h e a f o r e - f; t a (. e d n rn o u n L ; i: h a t .hey �ere b i 11 P. t. e d n t U 1e H :i. cJ town r; am r1 J tJ Ho . e 1 ( [ x h a � 7 , 7 - A , 7 - 8 2 n d 7 -� C ) v�l h e rr: Lhey discussed the rnaLlt'I' aml .l~d.. d out plans for the realization o~ their common goals and objectives; tl!ol durjrllJ those times, Hongkong prices were ve� y much Jower and as Buch, thr>y rler.::i deo to instead invest t hej J: money j n HoncJkurq to have 8 beller retu n on investmnnt; that Ong Tor Choo left the country on I~ a y .l 1 ~ 19 8 3 a n d b e :i. n ~J t h r-� o n e i n c IHP' 11 e in the safekeeping of the mopey, he decidei to leave an d entrust the suilcDses containing the mcney at the residPnce of a Filioino friend, Petnr Uy Tong, with- o u t h o ;,,. ~ v e r , d :i s c J o s 1 n g l o t h e 1L ~ t u r t h B i r e c t u a 1 co n t e n t s ; t� ll "' l. c o n t r H r y to his original pl~n lo comA back to the Phi ippines On~ Tor Cheo failed to arr-ive as ~:;chedu1ed; that by such failure 1 Dng Tor C~eo callPd up Peter Uy Tong via� long distance und re~uPsted the 1 at t e r ~ whom he k n e \'I b ~) f o r e h :.H. d tvould be leavJng for Hongkong, to bring vd.th him the aforementioned left bc~hjnd t.~t/0 s lit.caBes; that on Hay 29 r l9f.i5 h e heard from a fi�ienll that P_,t.cr lJ)' Tong \ ' u':) u0 .l"

., DECISION �� CTA CASE NO. 3897 - 5 -� would not be able to go to Hongkong on May 28, 1983 as he (Peter Uy Tong) was apprehended at the Manila Inter- national Airport, having in hi s . �possession the US$531 , 3 38 ,00; that he ther eu pon contacted Peter Uy Tong and apologized to him and r~quested him to engage the services of a 1 a v.J y e r� ; a n d , t h a t h e ( 0 n g ) c am e to the Philippines to claim the money. Likewise presented during the formal hearing, in support of t-he claim were the persons of l~illian Gabaldon, Peter Uy Tong and Ismnel Estella, all of whom corroborated Ong Tor Cheo's testimony on material points, whereupon, the case was s~b mitted for resolution . " While petitioner in his appeal to this Court assigns the following errors which he conside rs issues: (p. 80, CTA record.) l. The respondent Commission er of Customs erred as a matter of l aw in adopting the findings and co nc lus ions of the Collector of Cusloms thnl the subject foreign currencies ore owned by Peter Uy Tong which de ci sion is grounded on speculation and conjecture and con- t r ary to the evidence adduced. 2. The Co mmissioner of Customs erred in not sustaining that the subject currencies are owned by a group of foreign businessmen headed by peti- tio ner Ong Tor Cheo into the Philip- pines for business undertaki n~ . 3. The Commissioner of Customs erred in not concluding that Central \

DECISION - CTA CASE NO. 3897 �- 6 �- Bank Circular l~o. 265, as amended, was never violated nor a Central t. Bank permit is necessary under the given circumstances, and thus~ con- fiscation order of the subject currencies is without legal bas is. the basic issue ~9 whether the attempted exportation of the subject currencies was in violation of r ntr al Bank Circular No. 265 in relation to Section Z5 30(f ) of the Tariff and Custo ms Code. Central Bank Circular No. 265 dated November 20, 1968 provides that: "No person sha1l take oul or export from the Philippines foreign currency or any other foreign ex- change except aa otherwise authorized by the Central Bank." Petitioner anchors his defense however on the proposition that Central Bank Circular No. 26~ ha s already been amended by Central Bnnk Circ ul ar No. 534 dat ed July 19, 1976, Section 3 of which states: "Unless specifically authorized by the Centual Bank or allowed under existing international agreements or Central Bank regulations, no person shall t a ke, or transmit or attempt to take or transmit foreign exchange, in any form~ out of the Philippin es directly, through other persons, through mails, or through inter- national carriers." \ 383

DECISION - CTA CASE NO. 3897 - 7- "Th e provi8ions of this section s hal l not apply to tourists and non- r esid ent temporary vis it ors who are taking or sending out of the Ph i l i p- t' p in es their own foreign e xch ange . b r ~ugh t by them." Petitioner as serts therefor~ th at he fal l s .wi th- in th e pu r v ie\v of t h e t erm 11 tour i sts and non- r es iden t temporary vis i to rs who are t aking or sendi ng out of the Philippines t he ir own foreign ex chan ge brought by them." Re spond e nt Commissi oner of Customs considers petitioner's reliance on the a f orequoted provision misplaced since there is nothing i n th e rHcords which s hows t hat the su bject cu rrencies were previously i mp o r t e d i n to t h e �co u n t r y b y bw r is t s o r n on- r e s i d e n t tempo r a r y v .i s i t. o r s , a n cl "'! e a q r e ~-. The b a r e,. s e 1 f- s e r v i n g stateme nt of pet iti one r Ong Tor Cheo, wh o claims to be th e owner of t he subject fo teign curre ncies, that the c urrencies were previous ly i mpor ted in to the �oun try by tourists a nd no n-resident temp orary visitors t un- accompanied by adequate a nd competent evidence has no weight with the Co urt . To begin vithe forfeiture s are imposed b y the se~zure and s ub sequent institutio n of seiz ure pro- ceedings pursuant to Section 2532 of the Tariff and \

DECISION - - 9- CTA CASE NO. 3897 J� Co r p o r a t .i o n v s � Co mmi s s i o n e r o f Cu s t o m~~ 1 ~.u p r -~- ; Metropolitan Garment Corporation vs. Ramon J. ~. Farolan, as Acting Commissioner of Cuf~toms, suer2_; Mayer Steel Pipe Corporatio n vs � .Hon. Pio de Roda, et al . , � sue~; Southern Isle s ~load Export vs . Com- mi s s i o n e r o f Cu s t oms , ~t.::e.z:.D... ) An d Se c t i. o n 2 5 3 5 o f the Tariff and Custo ms Code, ns amended, provides: "SEC. 2535. Burde n of Proof in Seizu re and/or F�orf e i lure .---In-all pr~ceedingstaken-for-the sei zu I'E' and/or forfeiture of any vessel, ~ehi c le, aircraft, beast or arlicles under the provisions of the tariff and customs laws, the burden-of p r oof shall lie upon the claimant: Provided~ That probable cause shall be first shown for the instit u tion of such proceedings and that seizure and/or forfeiture wa~ made under the circum- stances and in the manner describ ed in the preceding sect ions of this Code." Whe n the Bureau of Cus .oms seized the foreign currencies involved in this case , what are th cir- cumstances which warranted, or create J the susoicion, that i1dicated the existence o � pr obable cause for the institution of seizure proceedings? As stated above, and summarized by respondent Commissione r of Custo111s: (p. 15, CTA record.) \. 38 ~ �I

-- - DECIS ION - CTA CASE NO. 3897 - 10 - 1. That on or about 3:15 P.M. of May 28, 1983, while the baggage of an outgoing passenger, PETER UY TONG was passing through the t' X-Ray TV, a Customs Examine~, APOLLO A. PAZ, of the Departure Ar~a, noticed rectangular shapes inside the passenger's baggage; 2. That further verification and inspection of said luggage re- vealed that the same co ntained the following currencies: 1. FIVE HUNDRED THIRTY-ONE THOUSAND THREE HUNDR~D THIRTY-EIGHT US DOLLARS ($531,338.00) 2. EIGHT HUNDRED SEVENTY HONGKONG DOLLAR~ (HK$870.00), and 3. That PETER UY TONG did not have any permit or authority from the Central Bank to �carry or transmit the cur- rencies to Hongkong where he was reportedly bringing the money to buy a condominium unit for his import- export business. Thus, as special and affirmative defense, res- pendent alleged in his answer: (p. 63, CTA record.) "Peter Uy Tong's attempt to take subject foreign currencies out of the country without the required Central Bank permit is violative of Central Bank Circular No. 265, as amended." Consequently, the subject currencies in question ar~ subject to forfeiture as provided for in Section 2530(f) of the Tariff and Customs Code. Thus: (pp. 63- \ 38:

DECISION - - 11 - CTA CASE NO. 3897 .~ 64, .CTI\ record.) " Se c � 2 5 3 0 � P r o pe r t.L_S u b j e c t t 9.. a�w-::.- r Forfeit ure Under Tariff and Customs t, L An y ve h i c 1e , ve s s e 1 o r a i t c a f t , c-nrgo, article and oth er objects shall , under the following conditions be sub- ject to forfeiture: XXX XXX XXX (f) ~n~ti~le the i~~~tation or exportation of which is effected or attempted c.'!ntr.:..?..E.Y to law, or any article of pr ohibit ed importation or ex portationy and all other article s which, in the opinion of the Collector, have b een used, ~ re or we re entered to be used as instruments in the importation or exportation of the former." ([mphRsi.s sup plied.) In an a ttempt to draw sup port f rom the provision of Section 3 , Ce ntral Bank Circular No. 534, ~upra, wh i c h s t a t e s t h a t " t h i s s e c t i o n s h a 11 no t a fJ p1 y t. o tourists and non- ~ eside nt temporary visitors who are taking or sen ding out of the Philippine,� their ovm foreign exchange brought by thorn", petidoner Peter Uy Tong denied having knowledg e of the true contents of the subject baggage in his possession an d the own er - ship of the same, and contends that said foreiqn currencies belong to herein pet itioner Ong Tor Cheo, who is allegedly a Singapor ean national and head/ representative of a group of foreign businessmen who \

DECISION �- CTA CA SE NO . 3897 - 12 - brought the sa me to the Philippines for th ei~ en visioned co n dom inium business here. At the outset, as pointed out by'respondent in his answer, Peter Uy Tong is pre se ntl y estopped from denying his previous and unequivocal stateme nt given to investi ga ting Central Bank and Cust oms personnel Jos e Rui v iv ah a nd Ignacio Nunez admitting his ow ne r - s hip of the foreign currencies in question on th e same day he was caught in possession thereof. Indeed, a man's act, con duct and declaration whe never ma de voluntarily are admissible agains~ hi m for the rea s on that it is fair to presume th CJ t they corres pond with the tr u th and it is his fault if they do not. (u. s . vs. Ching Po, 23 Phi l. 57 8-583 .) To quot e , with approval, t he observ atio n of the Acting Coll ector of Customs in h is decision d a ted May 28, 1984 rejecting the version of Ong Tor Cheo that he i s the owner o f the c onfiscate d for e ign currencies: (pp. 16B-l69, CTA rec ord .) " Fr om both the do cu me ntary and te~ timonial evidence adduced during the hearj.ngs, Peter Uy Tong clearly appea rs the sole owner of the conFis- cated foreign cur~encies to the ex- cl usion of herein nine (9) claimants. \ 38~

DECISIOI\1 -� -� J. 3 -� CTA C~SE NO. 3897 ,. Th e uncorr ~ borate d t stimony of Ong Tor Cheo that he and eiqht (8) other friends of his are the own ers of the subject currencies is at best self ,., :3 e r v i n g cons i de r i n g t h a t t h e ~:; e e ..i. y h t (H) other alleged 01,1ners were not even pre sented during the hearings. The testimony of William �Gabaldon, th e alleged friend of 0ng Tor Cheo jn the Philippines , did not also corr oborate the statements g" ven by him (Ong Tor Cheo) because Gabaldon testified only as to the fact. of l:he r~lleged plun of Ong Tor Cheo and his frjends lo pur- chase condominium unibJ j n t h e country and not with respect to the ownership o f t h e mo n e y � L i k e 1-J:i. s e , u-, e u n s o 1i c i t e d and spontaneous statements of Peter Uy Ton ~~ at t he time of his ap prehen sion on May 2A, 983 given to Messrs. Ign ari n Nu~ez of the Bureau of Customs Rnd Jose Ruivivar of the Centra l Bank thot h e wi ll us e the money to buy a condominium unit in Hongkong is more credible and of a higher probative va l ue than that he gave seveial months rfter the occu- rence of the incident. The propehsily of Pet r Uy Tong to manuf acture un- t ruthful statements is most disc ernible when h e told Apollo Paz, the a p prehe~ding officer, right there and then at the time o f a p p r e h e n s i on t h a t h e s n d h j s 11 i f e 1v e r e going to the United StALes instead of Hongkong, as sho ~v n by their plane tickets ." And which manifestly supports and gives credence to the alleyation of respondent that: (p. 6~, CTA. r ecor�d.) 11 0 n g Tor Ch co 1 s tale t h G t he mere 1 y entt'usted the suitcnGes containing the money to Pete r Uy Tong for the l atter to bring to Hongkong is highly incredible. Ong Tor Cheo could have brought .he \ 38v

DE CIS IOI\1 -� -� 13 -� CTA CASE NO. J897 ,. Th e u ncorr borated testimony of Ong Tor Cheo that he and eiqht (B) other friends of liS ore the 0\~i'lCI'S of the subject currencies is at hest se]f' ;, serving considering that these e,.ig ht. (8) other alleged mHoers were not even presented during the hearings. The testimony of William Gabaldons the alleged friend of Ong Tor Cheo in the Philippines, did not als corroborate the statements g'ven by him (Ong Tor Cheo) because Gabaldon testified only as to the fact. of l:he alleged plun of Dng Tor Cheo and his frjends lo pu �- chase condominium unittJ ]n the country and not with respect to the ownership o f the money. Li ko\'Jise , U.e unsolicited and spontaneous statements of Peter Uy Ton ~1 at th e time of his ap preh ension on May 2A, 19�3 given to Messrs. Iyn ari n Nu~ez of the Bure au of Customs And Jose Ruivivar of the Central Bank that he will use the money to buy a condominium unit in Hongkong is more credible and of a higher probative va l ue than that he gave seve ial months after the orcu- rence of the incident. The propehsily of Pet 1� Uy Tong t. rnanuf act.u:re un-- t ruthful statements is most disc ernible when h e told Apollo Paz, the apprehe~ding officer, right there and th en at tho time of apprehension that he and his wife were going to the United States instead o f Hongkong, as sho~�m by their plane tick")ts ." And which manifestly supports and gives credence to the a ll eyatio n of respondent that: (p. 65, CTA. re coi"d.) 11 0ng Tor Cheo 1 s tale that he mere ly entrusted the suitcases co ntainin g the money to Peter Uy Tong for the l atter to bring to Hongkong is hi ghly incredible. Ong Tor Cheo could have brought :he \

DECISION - CTA CASE NO. 38 9 7 - 14 - money him belf when he left for Hongk o ng several days before Peter Uy Tong's supposed departure. Further, it is unbelievable for Ong Tor Cheo not to have ad v ised Peter Uy Tong of the real contents of the suitc ases tb pr e- vent their loss and guard against un- expected robbers." Settled is the rule th a t the party who prays for judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the upposing party a n opportunity to introduce evidence, must be understood t o admit the truth of all the material and relevant allegations of the opposing party. (Bauermann vs. Casas, et.al., 10 Phil. 386; Evangelista vs. De la Rosa, 70 Phil. 115.) At any rate, . the subject foreign currencies were seized in the possession of Peter Uy Tong and the presumption is that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him. (Section 5(j), Rule 131, Rules of Court.) Moreover, the records do not show who were the tpurists and non-resident temporary visitors who brought into the country the subject foreign currencies, \ 39l

DECIS ION - CTA CASE NO. 3897 -� 15 - the respe ctiv. amo u nts of fore i~ n exchange brought in by each o n ~ of them, t he dates they were brought in~ �and at what points of entries upbn arrival in the Philippines they h ave been declar e d in fo r ms pr escribe d by the Centra l Ba nk o f the Philippi nest as re quired by Sectio n 3 of Cen t ra l Bank Circulan No . 265. It s h ou ld be noted that the exception provision of th e prohjbition refers on ly to touri sts and non-resident temporary vi sitors who are taking o r se nding out of the Phi lippines foreign excha nge prev ious ly brought in by them. As respondent Commiss i oner of Cu~toms put it : (pp. 18-19, CTA record.) This Off ice however finds the s tand of appellant unte nab l e because except for the se l f - serving testimony of Ong lor Ch eo , t he alleged o wner of subject currenci~s, nothing else in the records shows t hat t he c urr encies were previous ly imp orted into the country by tourists and temporary non- resi dent visitors . Fur the rmore , while ap pela n t has taken pains to s h ow that Dng Tor Ch e o who allegedly bro ught i the s ubj ect currencies is a successful and pro~inent businessman in Singapore, who has b een to and from the Ph i lippines since 19 81 for b usiness c ommitme nts, th e loc a l transactions howev.r of said Ong To r Cheo seem to be unbusinesslike . For example, \llhile, most b usinessmen wou ld \

DECISION - CTA CASE NO. 3897 - lG - normally prefer their financial trans- actions done through banks by means of negotiable instruments which are not only handy but much s afer and reliable, t, �Ong Tor Cheo did his in the most primitive manne r - bundle the bills which amounted to several thousand dollars, �pack them in a suitcase and entrust the same to a friend without telling that friend of the contents of the suitcase . Further- more, it appears that his alleged joint condominium venture was still in the planning stage and yet the defense is giving the impression that the money needed for the project, in cash and al- ready bundled in bills, is ready and prepared for payment as if looking for a suitable condominium unit is just like shopping for clothes at a shopping ce nter. Besides ignoring commonly acc~pted and recognized business practices, no adequate and comp e tent evidence to show the legitimate source of the currency in his possession was presented by petitioner. To quote res- pondent again: (p. 167, CTA record.) It is not believable that Mr. Cheo, having allegedly traveled on business to the Philippines since 1981, would be ignorant of the requirement that such a substantial amount must be declared upon arr i val here, and covered by a permit should they be withdrawn from the Philippines (Central Bank Circular No. 265, Section 3, paragraph 3 and as amended by Central Dank Circular No. 1412 dated July 16, 1976). Then, aside from Ong Tor Cheo's unusual, and questionable manner of conducting business, which cast \ J

DECISION - CTA CASE NO. 3897 - 17 - doubt on his allegation as a businessman engaged in building condominium, and alleged legitimate, bona ,, fide .possession of the foreign currencies, his claim that he and his associates came to the Philippines to "invest in the country" has not been established by adequate and competent evidence. In Acting Com- missioner of Customs vs. Court of Tax Appeals and Charles Andrulis, L-62636, April 27, 1984, 129 SCRA 70, the Supreme Court quoted with approval the following observations of the Solicitor General on this point which finds relevance: "If it was really his intention to invest, he could have presented documents to support his assertion. He could have produced papers required by the Governm~nt of foreigners intend- ing to invest in the Philippines. He could have presented as witnesses Filipino businessmen with whom he entered into joint ventures or at least discussed thP. prospects there- of. He could at the least have re- vealed the nature of the business he intended to engage in, the capital requirements thereof, the situs of the business, the form of the entity he intended to form to carry on the business, etc. He had done none of these. "Privat~ respondent implies that the foreign currencies seized from him were intended to be invested in business ventures in the Philippines. If this is \ )

DECISION - - 18 - CTA CASE NO. 3897 J-� so, why was it necessary for him to have three kinds of currencies: US dollars, Indonesian Rupiah and Singapore dollars. Besides, business- '� men usually do not personally canry the cash which they intend to invest. They remit them through the banks." In fine, upon the facts of the case, the require- ment of the law that the existence of probable cause should fi rst be shown be fore filing of the forfeiture proceedings, had been fully met. When Peter Uy Tong was apprehended at the Manila International Airport and was found to have in his po ssess ion the foreign currencies in question, he could ~at produce the required Central Bank authorization allowing him to bring them out of the country. This constituted prima fatie evidence of infringem e nt of the provisions of Central Bank Circul8r No. 534 and provided suffi- cient basis for the seizure of the said foreign exchange. Probable cause h~ving been shown, the burden of proof was upon petitioner Peter Uy Tong (who is a Filipino and certainl y not a tourist or non-resident t e mporary visitor) or Ong Tor Cheo (who claims ownership thereof) to e s tablish that he fell within the purview of the exception prescribed in the second paragraph of the aforequoted Section 3 \ 390

DECISION - CTA CASE NO. 3897 - 19 - of Central Bank Circular No. 534 in that he actually brought i to the country the foreign curre cie s a nd was just tak ing them out. This burden, imposed in seizure or f orfeiture proceeding by Section 2535 of the Tariff an d Customs Code, supra, Ong Tor Cheo or Peter Uy Tong had failed to satisfactorily dis charge. (See Acting Commissioner of Customs vs. Court of Tax Appeals, supra.) Ong Tor Cheo contend s that no foreign currency declaration is require d of any in c oming or outgoing passenger and that it is not the intention of the Government to entrap unwary foreigners. True, Reso - lution No. 594, dated April 14, 1969, of the Monetary Board, provides "Hencefor-th, no currency declaration of any kind shall be required either from outgoing or incoming passengers." However, tourists are not precluded from submitting proof, other than a cur- rency declaration, to show the legitimate source of the currency in their posses s ion. Besides, Reso- lution No. 594 must be deemed superseded by Reso- lution o. 1412, dat e d 16 July 1976, which requires that persons taking or transmitting or attempting to take or transmit foreign exchange out of the \

. DECISION - - 20 - CTA CASE NO. 3897 ._ Philippines must have authorization from the Central Bank allowing them to do so. (See Acting Commis- t, sioner of Customs v. Court of Ta x Appeals, supra.) Accordingly, the decision of respondent Com- missioner of Customs affirming the forfeiture of the subject currencies consisting of US$531,338.00 and HK$870.00 in favor of the Government must Qe sustained. WHEREFORE, we find no merit in the petition for review and the same is her e by dismissed with costs against petitioner. SO ORDERED. Quezon City~ Metro Manila, July 1, 1987. AMANTE ILLER Presid"ng Judge WE CONCUR: -C. ROAQUIN ssociate Judge ~EYES Associate Judge