Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Background:
Section 248(B), the heading of which states “Civil Penalties,” provides that in case a false
or fraudulent return is willfully made, the penalty imposed shall be 50% of the tax or of
the deficiency tax. The provision also states that failure to report sales, receipts or income
in an amount exceeding 30% of that declared per return, or a claim of deductions in an
amount exceeding the same threshold shall give rise to a prima facie presumption of false
or fraudulent returns.
The presumption found under 248(B) is being used by the government to initiate criminal
prosecution proceedings for tax evasion cases, and subsequently, file a criminal
information for such crime, notwithstanding the fact that such presumption is for
purposes of imputing civil liability only.
Further, not only is the presumption under 248(B) used to initiate criminal proceedings,
but the same is also being used to nullify the determination of the DOJ in preliminary
investigation proceedings through a petition for certiorari under Rule 65.
In BIR v. Spouses Manly, the Supreme Court recommended the filing of a criminal
information for tax evasion cases, because the BIR was able to prove the validity of the
computation and the method used in the determination of the tax liability of the accused,
which in this case, exceeded the 30%-threshold. In short, the presumption under 248(B)
was considered as sufficient as constituting probable cause to file a criminal information.
(If they ask, point out that the ruling of the Supreme Court only focused on the validity
of the assessment of the BIR in the determination of the amount of deficiency. The
Supreme Court did not touch upon the element of fraud, which is essential in tax
evasion).
Thesis Statement:
With that being said, the proponent will attempt to establish to points:
First, that 248(B) cannot be used to file a criminal information for tax evasion, for it
violates it violates several well-established legal principles; and
Second, 248(B) cannot be used as a legal basis for granting a petition for certiorari, because
it takes away the discretion of DOJ in the determination of probable cause – the duty
becomes, in effect, ministerial.
Substantive:
Why 248(B) Cannot Be Used To Used To Nullify The Determination of the DOJ Of The
Non-existence Of Probable Cause On The Ground Of A Grave Abuse of Discretion
Amounting To A Lack Or Excess Of Jurisdiction.
Discuss The Determination of Probable Cause As An Executive Function, and the Rule
On Non-Interference
The determination of probable cause is an executive function, meaning it is based
on the opinion of the DOJ that with reasonable likelihood, all the elements of a
crime are present as to justify the filing of a criminal information (Aguilar case and
CIR).
Courts can only interfere when there is a grave abuse of discretion:
o The petitioner must clearly show that the prosecutor gravely abused his discretion
amounting to lack or excess of jurisdiction in making his determination, and in
arriving at the conclusion he reached. This requires the petitioner to establish that
the prosecutor exercised his power in an arbitrary and despotic manner, by reason
of passion or personal hostility; and it must be so patent and gross as to amount to
an evasion, or to a unilateral refusal to perform the duty enjoined, or to act in
contemplation of law, before judicial relief from a discretionary prosecutorial action
may be obtained.
Relevance of Thesis
Prevent circumvention by the BIR and the SC
Recommendation:
Amend the law.
x---x
Why 30%?
Look for cases wherein the Supreme Court stated that the decision must state the reasons
bla bla.
Make clear: Deficiency different from penalty Give refund instead of credit.
Fix recommendation
Bitcoin
Security – SEC
Administrative feasibility
Uniformity
Recommendation:
BIR Regulation