a Late Return whet her No Payment or With Payment to the proper RDO/LTDO/LT Division, for stamping of the words LATE FILING, and for recording. -The RDO/LTDO Head/LT Di- vision Chief shall include to the late return a computation of the corresponding penalties. -No AAB or RCO shall ac- cept a late return that has not been stamped with the qualifi- er
LATE FILING and is not sup- ported by a computation of the corresponding penalties prepared by the concerned RDO/LTDO/ LT Division.
A late return that was filed by a taxpayer, and received by an AAB/RCO/RDO/LTDO/ LT Division, without prior ob- servation of the guidelines pre- scribed in the Regulations shall constitute prima facie evidence that the late return is fraudulent or spurious. Receipt of such late returns shall subject the con- cerned Revenue District Officer/ LTDO Head/LT Division Chief/ RCO and other concerned reve- nue employees (if any) to disci- plinary sanctions provided in the Regulations.
REVENUE REGULATIONS NO. 13-2010
Issued on December 10, 2010 prescribes the policies and guidelines in the acceptance of late and out-of-district tax re- turns by the following:
As a general rule, all RCOs, AABs, RDOs, LTDOs and LT Divisions, and other internal revenue officers concerned, shall not accept out-of-district returns except on the following cases:
-In cases where an AAB, in the regular course of its operations, inadvertently or erroneously accepted an out-of-district re- turn and the corresponding tax payment, the RDO/LTDO/LT Division receiving such return and payment shall, in no case, process or encode data from the out-of-district return. -The rules on the non- acceptance of out-of-district re- turns notwithstanding, the policies for the filing of tax returns, and payment of the taxes due, for One- Time-Transactions involving Es- tate, Donors, Capital Gains and Documentary Stamps Taxes, as provided under the pertinent reve- nue issuances, shall continue to be observed.
Out-of-district returns filed by taxpayers and/or received by RDOs/LTDOs/LT Divisions/ RCOs/AABs under circumstances other than those described above shall constitute prima facie evi- dence that such returns are fraudu- lent or spurious. Receipt of such out-of-district returns shall subject the concerned Revenue District Officer/LTDO Head/LT Division Chief/RCO and other concerned revenue employees (if any) to dis- ciplinary sanctions provided in the Regulations.
In general, all RCOs, AABs, RDOs, LTDOs, LT Divi- sions and other internal revenue officers concerned shall not accept any tax return filed, or taxes paid, beyond the deadline prescribed under the National Internal Reve- nue Code and existing revenue issuances, without the imposition of the applicable penalties. Prior to the filing of a late return, the fol- lowing guidelines must be ob- served: I ns i de t hi s i s s ue: BIR Issuanc- es 2 PDIC Issu- ance 5 Legal Up- dates 6 Jurisprudence 7 JLs Corner 17
LCA LINES M A Y 2 0 1 1 V o l u m e I I I I s s u e N o . 9 Serving your purpose, realizing your dreams... BIR ISSUANCES 2
V o l u m e I I I I s s u e N o . 9 M A Y 2 0 1 1 REVENUE REGULATIONS NO. 14-2010
Issued on December 10, 2010 amends pertinent provisions of Revenue Reg- ulations Nos. 11-2006 and 4-2010 on the accreditation of tax practitioners/ agents as a prerequisite to their prac- tice and representation before the Bu- reau of Internal Revenue (BIR).
Only those tax agents/ practitioners, partners or officers of General Professional Partnerships, or Officers or Directors of Corporate entities engaged in tax practice who have been issued Certificate of Ac- creditation or ID card shall be allowed to represent a taxpayer or transact business with the BIR in representa- tion of a taxpayer for the purpose(s) defined in the regulations. The Com- missioner or his authorized representa- tive shall only consider as valid docu- ment/attachments to tax returns, infor- mation returns or other statements or reports required by the Code or Regu- lations, the financial statements pre- pared, signed and certified by duly accredited tax practitioners. The BIR can refuse to transact official business with tax practitioners who are not ac- credited before it and shall require that certain official statements such as re- turns, financial statements, reports, protests, requests for ruling, official correspondence and other statements, paper or documents filed on behalf of a taxpayer be signed or certified to by accredited persons
REVENUE REGULATIONS NO. 16-2010
Issued on December 10, 2010 pre- scribes the guidelines, rules and proce- dures in the filing of confidential in- formation and the investigation of cases arising therefrom.
A qualified informer shall be rewarded in a sum equivalent to 10% of the revenues, surcharges or fees recovered and/or fine or penalty im- posed and collected or P 1,000,000 per case, whichever is lower. The follow- ing are disqualified to avail of the in- former's reward:
-A BIR official or employee or any other incumbent public official or em- ployee; -Relative within the 6 th civil degree of consanguinity of a BIR official or em- ployee, or other public official or em- ployee; and -Though already retired or otherwise separated from service, BIR officials or employees or other public officials who acquired the information in the course of the performance of their duties during their incumben- cy.
Confidential Information against the denounced taxpayer shall be under oath and shall be personally executed and filed by the Informer before the Chief, Prosecution Division, BIR Na- tional Office on the following viola- tions:
-Attempt to evade or defeat tax; -Failure to file return, supply correct and accurate information, pay tax, withhold and remit tax and refund excess taxes withheld on compensa- tion; -Failure or refusal to issue receipts or sales or commercial invoices, viola- tions related to the printing of such receipts or invoices or other viola- tions; -Unlawful pursuit of business; -Use of multiple Tax Identification Number/s (TINs); -Making false entries, records or re- ports or using falsified or false ac- countable forms; and -Other violations of the National Inter- nal Revenue Code (NIRC) of 1997.
However, if the estimated basic tax liability arising from the alleged viola- tion is less than P 1,000,000.00, the confidential information should be filed before the Chief, Legal Division of the Revenue Region having juris- diction over the taxpayer being de- nounced. A Confidential Information shall be treated as valid only if it meets ALL the following requisites:
-The Informer is not disqualified. -The Informer voluntarily provides sworn information on the tax fraud or violation of the NIRC of 1997, as amended, allegedly committed by the denounced taxpayer. -The said information is not yet in the possession of the BIR. -The said information does not refer to a case already pending or previ- ously investigated or examined by the Commissioner of Internal Reve- nue or any of his deputies, agents or examiners, or by the Secretary of Finance or any of his deputies or agents. -The said information does not refer to or is not exactly similar to a previ- ous information filed by another informer covering the same taxpayer describing the same scheme or infor- mation covering the same taxable year or period.
In order to protect the iden- tity of the Informer and safeguard the strict confidentiality of his infor- mation, the name of the Informer or any information appearing in the second copy of the Confidential In- formation that may possibly lead to the identity of the said Informer shall be deleted by the Records Manage- ment Division. From start until com- pletion of the investigation, the docket of the case shall bear no in- formation on the identity of the In- former. However, in extremely meri- torious cases, wherein there is a need to communicate with the Informer, the Chief, National Investigation Division (NID) or Special Investiga- tion Division (SID), as the case may be, should be given access to the identity or contact details of the In- former.
In order for an Informer to be enti- tled to a reward, the Confidential 3
M A Y 2 0 1 1 V o l u m e I I I I s s u e N o . 9 Information given must lead to or be instrumental in the discovery of the fraud or violation of the provisions of the NIRC of 1997, as amended, or special laws being administered by the BIR, and the same must result in the actual recovery or collection of revenues, surcharges and fees, and/ or the conviction of the guilty party or parties, and/or the imposition of any fine or penalty or the actual col- lection of a compromise amount, in case of amicable settlement.
Where there are two (2) or more Informers in the same case, the one who gave the information in full satisfaction of the conditions herein outlined shall be entitled to the re- ward. In the event that each Informer meets all conditions fully, the In- former who first furnished the infor- mation shall be entitled to the re- ward. In case two (2) or more per- sons jointly filed the confidential information who are qualified for the reward, they shall divide the reward equally among themselves.
REVENUE REGULATIONS NO. 17-2010
Issued on December 14, 2010 con- solidates the regulations implement- ing Republic Act No. 7646, which authorizes the Commissioner of In- ternal Revenue (CIR) to prescribe the place for payment of internal revenue taxes by large taxpayers, and prescribes the coverage and cri- teria for determining large taxpayers.
Additional Large Taxpayers may be selected and notified by the CIR, and covered by these Regulations. Tax- payers classified and notified as Large Taxpayers by the CIR shall continue as such, and shall be cov- ered by these Regulations, unless notified by the CIR in writing of its delisting.
Taxpayers already classified and noti- fied as Large Taxpayer (LT) by the CIR are mandatorily covered by the Electronic Filing and Payment System (EFPS) in filing and paying their inter- nal revenue tax liabilities, including the accompanying schedules and at- tachments as prescribed under existing revenue issuances. All withholding tax remittances and information returns of the Head Office and/or any branch/ unit of a LT shall be contained in a consolidated return.
All existing LTs must have adopted, and be maintaining, a working and duly-accredited Computerized Ac- counting System (CAS) starting 31 December 2010. Newly-identified LTs, on the other hand, must have adopted and secured the accreditation of, the required CAS within six (6) months after having been officially notified, in writing, of their status as LTs.
The procedures in the filing of returns and payment of taxes by LTs are spec- ified in the Regulations. In case of systems unavailability as declared by the CIR or his duly authorized repre- sentative during tax filing deadlines, filing of tax returns and payment of taxes due thereon shall be accepted manually or over-the-counter by the EFPS-AABs. However, once the sys- tem is up/online, the required tax re- turns, which was manually filed shall be e-filed within 15 days from the date of manual filing.
REVENUE MEMORANDUM CIR- CULAR NO. 95-2010
Issued on December 13, 2010 circular- izes the increase of Excise Tax rates on alcohol and tobacco products effec- tive January 1, 2011, as prescribed by Republic Act No. 9334 and imple- mented by Revenue Regulations No. 3 -2006. REVENUE MEMORANDUM CIRCULAR NO. 97-2010
Issued on December 21, 2010 clari- fies the VAT exemption of services by agricultural contract growers.
Toll processing/toll dressing/ toll manufacturing services performed independently from growing poultry, livestock or other agricultural and marine food products is subject to VAT pursuant to Section 108 of the Tax Code of 1997, as amended.
REVENUE MEMORANDUM CIRCULAR NO. 99-2010
Issued on December 29, 2010 circu- larizes the full text of Department Administrative Order (DAO) No. 10- 08 issued by the Department of Trade and Industry, further amending the revised implementing rules and regu- lations of Act No. 3883, as amended, otherwise known as the Business Name Law.
The amendments include, among oth- ers, the registration requirements; contents of the Application Form and Certificate of Business Name (BN) Registration; fees; period for filing; procedures for over-the-counter appli- cation and online application and grounds for revocation of BN regis- tration.
REVENUE REGULATIONS NO. 2-2011
Issued on March 2, 2011 prescribes the filing of Income Tax Return (ITR) and/or Annual Information Return (AIR) by certain individual citizens, including estates and trusts, resident aliens and non-resident aliens en- gaged in trade or business in the Phil- ippines.
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V o l u m e I I I I s s u e N o . 9 M A Y 2 0 1 1 Starting with taxable year 2010, indi- viduals, estates and trusts required under the law and existing issuances to file an ITR should file said ITR to- gether with the AIR (BIR Form No. 1705). Said individuals, estate and trusts shall include in the AIR such income subject to final withholding tax and those exclusions from gross income under Section 32(B) of the Tax Code, as amended.
Individuals not required to file ITRs or those qualified for substituted filing, may file an ITR, together with a duly accomplished AIR, for purposes of loans, foreign travel requirements, etc.
The following are now required to file the AIR, which shall include such income subject to final withholding tax and those exclusions from gross income:
-An individual with respect to pure compensation income, as defined in Section 32(A)(1), derived from sources within the Philippines, the Income Tax on which has been cor- rectly withheld under the provisions of Section 79 of the Tax Code, as amend- ed, whose annual taxable income ex- ceeds Php 500,000.00: Provided, That an individual deriving compensation concurrently from two or more em- ployers at any time during the taxable year shall file an ITR; -Individuals, estates and trusts whose sole income has been subjected to fi- nal withholding tax under Section 57 (A) of the Tax Code, as amended, with aggregate final tax withheld exceeding Php 125,000.00 annually, whether or not remitted to the BIR; and -Individuals whose sole income is exempt from Income Tax and whose total annual income (exempt) exceeds Php 500,000.00.
The filing of ITR (BIR Form Nos. 1700 or 1701) and/or AIR (BIR Form No. 1705), shall be filed in triplicate copies with the Revenue District Of- fice (RDO) where the individual, in- cluding estates and trusts, is required to register or where the individual has his legal residence or place of busi- ness on or before the 15 th day of April of each year covering income for the preceding taxable year.
REVENUE REGULATIONS NO. 3-2011
Issued on March 7, 2011 provides the policies, guidelines and procedures on the application for change in account- ing period under Section 46 of the National Internal Revenue Code (NIRC) of 1997, as amended.
If a taxpayer, other than an individual, changes his accounting period from fiscal year to calendar year, from cal- endar year to fiscal year, or from one fiscal year to another, the net income shall, with the approval of the Bureau of Internal Revenue (BIR), be comput- ed on the basis of such new account- ing period. Whenever a taxpayer changes its accounting period, the tax- payer is required to file with the BIR a separate final or adjustment return for the period between the close of the original accounting period and the date designated as the close of the new accounting period.
The request for approval of the change in accounting period should be filed at anytime not less than 60 days prior to the beginning of the proposed new accounting period. The procedures for the processing of request for issuance of certificate granting change in ac- counting period are specified in the Regulations.
The certification approving the adop- tion of a new accounting period must be released within 30 working days from the date of receipt of the com- plete documentary requirements.
REVENUE REGULATIONS NO. 4-2011
Issued on March 15, 2011 prescribes the rules on the proper allocation of costs and expenses amongst income earnings of banks and other financial institutions, for Income Tax report- ing purposes.
Only costs and expenses attributable to the operations of the Regular Banking Unit (RBU) can be claimed as deduction to arrive at the taxable income of the RBU subject to regu- lar Income Tax. Any cost or expense related with or incurred for the oper- ations of Foreign Currency Deposit Unit/ Expanded Foreign Currency Deposit Unit (FCDU/EFCDU) or Offshore Banking Unit (OBU) are not allowed as deduction from the RBU's taxable income.
REVENUE REGULATIONS NO. 5-2011
Issued on March 16, 2011 further amends Revenue Regulations (RR) Nos. 2-98 and 3-98, as last amended by RR No. 5-2008, with respect to "De Minimis Benefits", which are exempt from Income Tax on com- pensation as well as from Fringe Benefit Tax.
The following shall be considered as "de minimis" benefits, which are not subject to Fringe Benefit Tax and Income Tax as well as Withholding Tax on compensation income of both managerial and rank and file employees:
-Monetized unused vacation leave credits of private employees not exceeding 10 days during the year; -Monetized value of vacation and sick leave credits paid to govern- ment officials and employees; -Medical cash allowance to depend- ents of employees, not exceeding P 750 per employee per semester or P 5
M A Y 2 0 1 1 V o l u m e I I I I s s u e N o . 9 125 per month; -Rice subsidy of P 1,500 or one (1) sack of 50 kg. rice per month amounting to not more than P 1,500; -Uniform and clothing allowance not exceeding P 4,000 per annum; -Actual medical assistance, e.g. medical allowance to cover medical and healthcare needs, annual medi- cal/executive check-up, maternity assistance, and routine consultations, not exceeding P 10,000.00 per an- num; -Laundry allowance not exceeding P 300 per month; -Employees achievement awards, e.g., for length of service or safety achievement, which must be in the form of a tangible personal property other than cash or gift certificate, with an annual monetary value not exceeding P 10,000 received by the employee under an established writ- ten plan which does not discriminate in favor of highly paid employees; -Gifts given during Christmas and major anniversary celebrations not exceeding P 5,000 per employee per annum; and -Daily meal allowance for overtime work and night/graveyard shift not exceeding 25% of the basic mini- mum wage on a per region basis.
All other benefits given by employers, which are not included in the above enumeration shall not be considered as "de minimis" benefits, and hence, shall be subject to Income Tax as well as to withholding tax on compensation in- come.
The benefits provided in the Regu- lations shall apply to income earned starting the year 2011.
REVENUE REGULATIONS NO. 6-2011
Issued on March 16, 2011 suspends the implementation of Revenue Regu- lations No. 2-2011 (filing of Income Tax Return and/or Annual Information Return by individuals, including es- tates and trusts).
REVENUE MEMORANDUM OR- DER NO. 12-2011
Issued on March 17, 2011 prescribes the allocation of the CY 2011 BIR collection goal by implementing of- fice.
The overall CY 2011 collection goal of the BIR, as set by the Department of Finance (DOF), is P 940,000 Mil- lion. This is 9.25% higher than CY 2010 goal of P 860,441 Million. Out of the P 940,000 Million, P 897,705 Million is for BIR Operations and P 42,295 Million is for Non-BIR Opera- tions.
REVENUE MEMORANDUM OR- DER NO. 15-2011
Issued on March 18, 2011 allows the acceptance of out-of-district Income Tax Returns (ITRs) for CY 2010 filed by certain government officials and employees. No penalties and/or sanctions shall be imposed to the said taxpayers for fil- ing ITRs for CY 2010 (BIR Forms 1700 and 1701) and paying the tax due thereon at the wrong venue. No penalties and/or sanctions shall like- wise be imposed to the AABs and RCOs for accepting the same.
REGULATORY ISSUANCE NO. 2011-01
Unsafe and/or Unsound Banking Practices
The PDIC adopts the general princi- ples and guidelines in Bangko Sen- tral ng Pilipinas (BSP) Circular No. 341 (series of 2002), as amended by BSP Circular No. 640 (series of 2009), relating to the determination of activi- ties that may be considered unsafe and/or unsound banking practices.
FEATURES: Regulatory Issuance No. 2011-02 was published by the Philippine Deposit Insurance Corpora- tion (PDIC) last January to clarify which deposit accounts and transac- PHILIPPINE DEPOSIT INSURANCE CORPORATION 6
V o l u m e I I I I s s u e N o . 9 M A Y 2 0 1 1 LEGAL UPDATES
Implementing Rules and Regulation on Anti Tor- ture Act of 2009
FEATURES: The Department of Justice and the Commission on Hu- man Rights jointly promulgated the Implementing Rules and Regulations of the Anti-Torture Act of 2009 which seeks to implement the provisions of Republic Act No. 9745, entitled An Act Penalizing Torture and Other Cru- el, Inhuman and Degrading Treatment or Punishment and Prescribing Penal- ties Therefor. The said Implementing Rules reiterates the provisions of the Anti-Torture Act, defining acts of tor- ture and providing penalties for com- mitting such acts, whether as princi- pal, accomplice or accessory. It also reiterates that torture is a separate and independent crime and shall not ab- sorb or be absorbed by any other crime or felony. Furthermore, persons guilty of torture shall not benefit from any special amnesty law or similar measures that will have the effect of exempting them from criminal pro- ceedings or sanctions.
To view full text, please go to: http://www.chr.gov.ph/MAIN% 20PAGES/about%20hr/IRR/IRR% 20Anti-Torture.pdf
tions are excluded from the coverage of deposit insurance.
Republic Act No. 9576 in 2009 which increased the maximum amount of deposits covered by PDIC insurance to P500,000. The same law excluded from the coverage of the PDIC insurance the following ac- counts or transactions:
(i) investment products, such as bonds and securities; (ii) deposit accounts which are un- funded, or that are fictitious or fraud- ulent; (iii) deposit accounts constituting or emanating from unsafe or unsound banking practices; and (iv) deposits determined to be the pro- ceeds of unlawful activity.
To view full text, please go to: http://www.pdic.gov.ph/index.php? nid1=7&nid2=1&rid=171
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V o l u m e I I I I s s u e N o . 9 M A Y 2 0 1 1
ANTONIO LEJANO vs. PEOPLE OF THE PHILIPPINES G.R. No. 176389 14 December 2010 x---------------------------------------------x PEOPLE OF THE PHILIPPINES vs. HUBERT JEFFREY P. WEBB, AN- TONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FER- NANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO BIONG G.R. No. 176864
FACTS: In Estrellita Vizconde (Estrelita) and her daughters Carmela and Jennifer were brutally slain at their home in Paraaque City. Following an intense investigation, the police arrest- ed a group of suspects, but the court later ordered them discharged. Four years later in 1995, the National Bureau of Investigation (NBI) announced that it had solved the crime. It presented star -witness Jessica M. Alfaro (Alfaro), one of its informers, who claimed that she witnessed the crime. She pointed to accused Hubert Jeffrey P. Webb (Webb), Antonio "Tony Boy" Lejano (Lejano), Artemio "Dong" Ventura (Ventura), Michael A. Gatchalian (Gatchalian), Hospicio "Pyke" Fernan- dez (Fernandez), Peter Estrada (Estrada), Miguel "Ging" Rodriguez Rodriguez), and Joey Filart (Filart) and police officer, Gerardo Biong, as an accessory after the fact. The Regional Trial Court (RTC) of Paraaque City, Branch 274, tried only seven of the accused since Ventu- ra and Filart remained at large and rendered a judgment finding the seven accused guilty as charged.
The Court of Appeals (CA) affirmed RTCs decision, modifying the penalty imposed on Biong.
The motion for reconsideration by the accused was denied.
As a result of its initial deliberation in this case, the Supreme Court (SC) issued a Resolution granting the re- quest of Webb to submit for DNA analysis the semen specimen taken from Carmelas cadaver, which speci- men was then believed still under the safekeeping of the NBI. Unfortunate- ly, the NBI no longer has custody of the specimen.
ISSUES: 1. Whether or not Alfaros testimony as eyewitness, describing the crime and identifying Webb, Lejano, Gatchalian, Fernandez, Estra- da, Rodriguez, and two others as the persons who committed it, is entitled to belief; and 2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaros testimony that he led the others in committing the crime.
RULING: Alfaros testimony as eyewitness, describing the crime and identifying Webb, Lejano, Gatchali- an, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is not entitled to belief for the following reasons:
1. The quality of the witness According to Atty. Artemio Sacagu- ing Sacaguing), former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro had been hanging around at the NBI as an "asset." Because of her talent, the task force gave her "very special treatment" and she was allowed the privilege of spending nights in one of the rooms at the NBI offices.
Alfaro unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde mas- sacre and promised to bring that JURISPRUDENCE 8
M A Y 2 0 1 1 V o l u m e I I I I s s u e N o . 9 someone to the NBI to tell his story. When this did not happen and Sacagu- ing continued to press her, she told him that she might as well assume the role of her informant. Sacaguing said that she cannot testify in the Vizconde massacre since she did not witness the crime. This fact was never refuted by Alfaro.
2. The suspicious details Since Alfaro hanged out at the NBI offices and practically lived there, it was not too difficult for her to hear of these evidentiary details and gain ac- cess to the documents. The SC con- sidered the following testimony of Alfaro:
a. The Barroso gang members said that they got into Carmelas house by breaking the glass panel of the front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that Webb was Carmelas boyfriend. Webb had no reason to smash her front door to get to see her.
Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone and, out of the blue, hurled it at the glass- paneled front door of the Vizconde residence. His action really made no sense. From Alfaros narration, Webb appeared rational in his decisions. It was past midnight, the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come.
b. The crime scene showed that the house had been ransacked. The reject- ed confessions of the Barroso "akyat- bahay" gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key.
This portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked house. She never mentioned Ventura having taken some valuables with him when they left Carmelas house. And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene although rob- bery was supposedly not the reason Webb and his companions entered that house.
c. It is the same thing with the garage light. She claimed that Ventura climbed the cars hood, using a chair, to turn the light off. But, unlike the Barroso "akyat-bahay" gang, Webb and his friends did not have anything to do in a darkened garage. They sup- posedly knew in advance that Carmela left the doors to the kitchen open for them. It did not make sense for Ventu- ra to risk standing on the cars hood and be seen in such an awkward posi- tion instead of going straight into the house.
Alfaro named Miguel "Ging" Rodri- guez as one of the culprits in the Viz- conde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Re- habilitation Center, initially suspected to be Alfaros Miguel Rodriguez and showed him to Alfaro at the NBI of- fice, she ran berserk, slapping and kicking Michael, exclaiming: "How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me." As it turned out, he was not Mi- guel Rodriguez, the accused in this case. Two possibilities exist: Michael was really the one Alfaro wanted to impli- cate to settle some score with him but it was too late to change the name she already gave or she had myopic vi- sion, tagging the wrong people for what they did not do.
3. The quality of the testimony One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodri- guez, and Filart, who were supposed to be Webbs co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him.
Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaros car, which was parked on the street between Carmelas house and the next. Some of these men sat on top of the cars lid while others milled on the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the people who were having a drinking party in a near- by house. Obviously, the behavior of Webbs companions out on the street did not figure in a planned gang-rape of Carmela. 9
V o l u m e I I I I s s u e N o . 9 M A Y 2 0 1 1
Two. Ventura, Alfaros dope supplier, introduced her for the first time in her life to Webb and his friends in a park- ing lot by a mall. They were practical- ly strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang -rape Carmela, clearly, there was noth- ing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a crime to report, only she was not yet an "asset" then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her, how could she remember so much details that only a drug-free mind can?
Three. When Alfaro went to see Car- mela at her house for the second time, Carmella told her that she still had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmelas boyfriend. Clearly, Alfaro had to provide a reason for Webb to freak out and decide to come with his friends and harm Carmela.
Four. According to Alfaro, when they returned to Carmelas house the third time around midnight, she led Webb, Lejano, and Ventura through the pe- destrian gate that Carmela had left open. Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmelas house and gang-rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house?
Five. Alfaro claimed that she immedi- ately walked out of the garden and went to her car when she heard some- one say sino yan?. Alfaro walked away because, she did not want to get involved in a potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business. But if that were the case, how could she testify based on personal knowledge of what went on in the house? She next claimed that she went back into the house to watch as Webb raped Carmela on the floor of the masters bedroom. He had apparently stabbed to death Carmelas mom and her young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb supposedly gave her a meaning- ful look. Alfaro quickly went to her car and turned on the engine but she testified that she did not know where to go. This emotional pendulum swing indicates a witness who was confused with her own lies.
5. The missing corroboration Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom Alfaro thought the way it looked was also Carmelas lover. However, none of Carmelas relatives, friends, or people who knew her ever testified about the existence of Mr.X in her life. Nobody has come forward to testify having ever seen him with Carmela. And de- spite the gruesome news about her death and how Mr. X had played a role in it, he never presented himself like anyone who had lost a special friend normally would.
As to the second issue, Webb present- ed sufficient evidence to prove his alibi and rebut Alfaros testimony that he led the others in committing the crime.
a. The travel preparations Webb claims that in 1991 he went to the United States (U.S.). Gloria Webb (Gloria), his aunt, accompanied him. Rajah Tours confirmed that Webb and Gloria used their plane tickets. On March 8,1991, the eve of his de- parture, he took girlfriend to a dinner at Bunchums at the Makati Cinema Square together with his friends. They afterwards went to Faces Disco for Webb's despedida party.
b. The two immigration checks Proof that the Immigration Officer checked Webbs visa, stamped, and initialed his passport, and let him pass through were likewise presented. Webb and Gloria were listed on the United Airlines Flights Passenger Manifest.
Also, the U.S. Immigration Naturali- zation Service, checking with its Non- immigrant Information System, con- firmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by the U.S. Immigration and Naturaliza- tion Service, the computer-generated print-out of the US-INS indicating Webb's entry on March 9, 1991, and 10
M A Y 2 0 1 1 V o l u m e I I I I s s u e N o . 9 the US-INS Certification dated August 31, 1995, authenticated by the Philip- pine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification.
c. Details of U.S. sojourn Sufficient proof were presented show- ing Webbs stay in the UShe watched the concert of Deelite Band in SanFrancisco, worked at his cousin-in- laws pest control company, applied for a drivers license, wrote letters to his friend, purchased an MR2 Toyota car and presented witnesses to prove the same.
d. The second immigration checks Webbs departure from the U.S. was confirmed by the same certifications that confirmed his entry. Furthermore, a Diplomatic Note of the U.S. Depart- ment of State with enclosed letter from the Acting Director of the Records Operations, Office of Records of the US-INS stated that the issued Certifi- cation is a true and accurate statement. The Passenger Manifest of Philippine Airlines confirmed his return trip. The arrival stamp and initial on his pass- port indicating his return to Manila on October 27, 1992 was authenticated by the immigration officer who processed Webbs reentry.
e. Alibi versus positive identification The positive identification of the ac- cused by the witness must meet at least two criteria:
First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold.
And second, the witness story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she nev- er saw runs into inconsistencies and makes bewildering claims.
Here, Alfaro and her testimony fail to meet the above criteria.
Indeed, her superior testified that she volunteered to play the role of a wit- ness in the Vizconde killings when she could not produce a man she promised to the NBI.
Although Alfaros testimony included details, she had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to in- clude in her testimony the clearly in- compatible act of Webb just so she can accommodate this crime scene feature.
Further, her testimony was inherently incredible. Alfaros story that she agreed to serve as Webbs messenger to Carmela, using up her gas, and stay- ing with him till the bizarre end when they were practically strangers, also taxes incredulity. Alfaros quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi.
f. Documented alibi To establish alibi, the accused must prove by positive, clear, and satisfac- tory evidence that (a) he was present at another place at the time of the per- petration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.
The U.S. Immigration certification and the computer print-out of Webbs arri- val in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webbs passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true.
The prosecution did not bother to pre- sent evidence to impeach the entries in Webbs passport and the certifications of the Philippine and U.S. immigra- tion services regarding his travel to the U.S. and back. The prosecutions re- buttal evidence is the fear of the un- known that it planted in the lower 11
V o l u m e I I I I s s u e N o . 9 M A Y 2 0 1 1 courts minds.
PEOPLE OF THE PHILIPPINES vs. ROBERTO LOPEZ y CABAL G.R. No. 188902 16 February 2011
FACTS: On 10 August 2006, Rob- erto Lopez was charged with the mur- der of Prudencio Melendres, forty one (41) years of age and a photo corre- spondent for Tanod Newspaper (newspaper) owned by Tanod Publish- ing (Tanod).
On 15 February 2008, the Regional Trial Court (RTC) rendered its deci- sion finding Lopez guilty of murder. The RTC ordered Lopez to pay the heirs of Melendres as fol- lows: P50,000 as death indemni- ty, P50,000 as moral damag- es, P40,000 as actual damages and P7,570 per month for six months as lost income.
On appeal, the Court of Appeals (CA) denied Lopezs appeal and affirmed with modification the trial courts de- cision. On the award of damages, the CA reduced the award of actual dam- ages from P40,000 to P33,000, the latter amount having been substantiat- ed by receipts. As to the loss of in- come, the CA noted that there was no accurate way to determine Melendres earnings since the certification submit- ted by the heirs of Melendres did not reflect a fixed amount but only a sala- ry range. However, the CA held that the heirs of Melendres are still entitled to a reasonable amount as a result of Melendres loss of earning capacity and deemed it proper to increase the award from P45,420 to P200,000.
ISSUE: Whether or not the CA erred in computing the loss of earning ca- pacity of Melendres.
RULING: The CA erred in compu- ting the loss of earning capacity of Melendres.
The rule is that documentary evidence should be presented to substantiate a claim for loss of earning capacity. In this case, the heirs of Melendres pre- sented a certification from Melendres employer Tanod which showed that Melendres monthly salary ranges from P1,780 to P3,570 on per story basis. The heirs of Melendres also presented another certification from Tanod which showed that Melendres received the total amount of P24,990 representing payment of honoraria and transportation allowance which Lopez did not object to before the RTC. The rule is that evidence not objected to is deemed admitted and may be validly considered by the court in arriving at its judgment.
It was also established that at the time of his death.
Thus, Melendres net earning capacity can be derived from two sources: (1) his monthly salary and (2) his honorar- ium and transportation allowance, whereby Lopez is ordered to pay the heirs of Melendres the amount of P974,220 for loss of earning capaci- ty.
The loss of earning capacity is com- puted as follows:
Net Earning Capacity = Life expectancy x Gross Annual Income Living Expenses = [2/3 (80 age at death)] x GAI [50% of GAI] = [2/3 (80 41)] x P74,940 P37,470 = [2/3 (39)] x P37,470 = 26 x P37,470 Net Earning Capacity = P974,220
PFIZER, INC. AND/OR REY GERARDO BACARRO, AND/OR FERDINAND CORTES, AND/OR ALFRED MAGALLON, AND/OR ARISTOTLE ARCE vs. GERALDINE VELASCO G.R. No. 177467 9 March 2011
FACTS: Geraldine L. Velasco (Velasco) was employed with Pfizer, Inc. (Pfizer) 1992. Sometime 2003, Velasco had a high-risk pregnancy and was subsequently advised bed rest. She filed her sick leave for the period for four (4) months.
While Velasco was still on leave, Pfiz- er served Velasco a "Show-cause No- tice" regarding "unauthorized deals and/or discounts in money or samples and unauthorized withdrawal and/or pull-out of stocks" and placed her un- der "preventive suspension". Thereaf- ter, Pfizer retrieved the company car and other properties of Pfizer under the custody of Velasco. In response, Velasco sent a letter denying the charges.
Velasco received a "Second Show- cause Notice". That same day, Velasco filed a complaint for illegal suspension with money claims before the Region- al Arbitration Branch. 12
M A Y 2 0 1 1 V o l u m e I I I I s s u e N o . 9
Velasco received a "Third Show-cause Notice". Finally, Pfizer terminated Velascos employment.
The Labor Arbiter rendered its deci- sion declaring the dismissal of Velas- co illegal, ordering her reinstatement with backwages and further awarding moral and exemplary damages with attorneys fees. On appeal, the NLRC affirmed the same but deleted the award of moral and exemplary damag- es.
Pfizer appealed to the National Labor Relations Commission (NLRC) but the same was denied.
On appeal, the Court of Appeals (CA) upheld the validity of Velascos dis- missal from employment.
Velasco filed a Motion for Reconsid- eration. The CA modified its earlier ruling by directing Pfizer to pay Ve- lasco her wages from the date of the Labor Arbiters Decision up to the CA Decision.
ISSUE: Whether or not Velasco is entitled to receive her accrued back- wages from the moment the reinstate- ment order was issued up to the date when the same was reversed by the CA.
RULING: Velasco is entitled to re- ceive her accrued backwages from the moment the reinstatement order was issued up to the date when the same was reversed by the CA.
An award or order of reinstatement is immediately self-executory without the need for the issuance of a writ of execution in accordance with the third paragraph of Article 223 of the Labor Code. The provision of Article 223 is clear that an award for reinstate- ment shall be immediately executory even pending appeal and the posting of a bond by the employer shall not stay the execution for reinstatement and any attempt on the part of the em- ployer to evade or delay its execution should not be allowed.
In the case at bar, Pfizer did not imme- diately admit Velasco back to work which, according to the law, should have been done as soon as an order or award of reinstatement is handed down by the Labor Arbiter without need for the issuance of a writ of exe- cution. Thus, Velasco was entitled to the wages paid to her under the writ of execution.
To reiterate, under Article 223 of the Labor Code, an employee entitled to reinstatement "shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the op- tion of the employer, merely reinstated in the payroll."
It is established in jurisprudence that reinstatement means restoration to a state or condition from which one had been removed or separated. The per- son reinstated assumes the position he had occupied prior to his dismissal. Reinstatement presupposes that the previous position from which one had been removed still exists, or that there is an unfilled position which is sub- stantially equivalent or of similar na- ture as the one previously occupied by the employee.
Applying the foregoing principle, it cannot be said that with Pfizers 2005 Letter, in belated fulfillment of the Labor Arbiters reinstatement order, it had shown a clear intent to reinstate Velasco to her former position under the same terms and conditions nor to a substantially equivalent position. The return-to-work order Pfizer sent Velas- co is silent with regard to the position or the exact nature of employment that it wanted Velasco to take up in 2005.
An order for reinstatement entitles an employee to receive his accrued back- wages from the moment the reinstate- ment order was issued up to the date when the same was reversed by a higher court without fear of refunding what he had received. It cannot be denied that, under our statutory and jurisprudential framework, Velasco is entitled to payment of her wages.
CENTRAL LUZON DRUG COR- PORATION vs. COMMISSIONER OF INTERNAL REVENUE G.R. No. 181371 2 March 2011
FACTS: Central Luzon Drug Corpo- ration (CLDC) is a duly registered corporation engaged in the retail of medicines and other pharmaceutical products.
It operates 22 drugstores located in Central Luzon under the business name and style of "Mercury Drug."
In 2005, CLDC filed with Commis- sioner of Internal Revenue (CIR) a 13
V o l u m e I I I I s s u e N o . 9 M A Y 2 0 1 1 request for the issuance of a tax credit certificate in the amount of P32,170,409, representing the 20% sales discounts allegedly granted to senior citizens for the year 2002.
The Court of Tax Appeals (CTA) de- nied CLDCs claim for insufficiency of evidence.
Aggrieved, CLDC moved for recon- sideration
but the First Division of the CTA denied the same.
CLDC filed with the CTA En Banc a Petition for Review, but the same was dismissed for failure of CLDC to at- tach a Verification, a Certification of Non-Forum Shopping, as well as a Special Power of Attorney and a Sec- retarys Certificate, authorizing CLD- Cs counsel to file the Petition for Re- view.
CLDC sought for reconsideration and argued that the Verification and Certi- fication of Non-Forum Shopping was already attached to the Motion for Extension of Time to File Petition for Review on Certiorari (Motion).
The CTA En Banc denied reconsidera- tion.
CLDC filed with the Supreme Court a Petition for Review on Certiorari.
It later on filed a Motion to Withdraw, praying that the case be dismissed without prejudice.
The Office of the Solicitor General (OSG) did not oppose the Motion to Withdraw. However, citing Section 2, Rule 17 of the Rules of Court, the OSG argues that the withdrawal of the instant case is no longer a matter of right on the part of CLDC, but is dis- cretionary upon the Court.
The OSG also calls attention to the failure of the person who signed the Verification and Certification of Non-forum Shop- ping, to exhibit before the notary pub- lic a valid Identification Card. The OSG insists that such failure renders the instant Petition defective. Thus, it should be dismissed with prejudice.
ISSUE: Whether or not the case should be dismissed with prejudice.
RULING: The case should be dis- missed with prejudice.
Section 1, Rule 13 of the Internal Rules of the Supreme Court provides that "[a] case shall be deemed submit- ted for decision or resolution upon the filing of the last pleading, brief, or memorandum that the Court or its Rules require." In the instant case, records show that when the SC re- solved to require CLDC to file a reply, instead of complying, CLDC opted to file a motion to withdraw. Clearly, by requiring CLDC to file its Reply, the SC has not yet deemed the case sub- mitted for decision or resolution.
By withdrawing the appeal, CLDC is deemed to have accepted the decision of the CTA. And since the CTA had already denied CLDCs request for the issuance of a tax credit certificate in the amount of P32,170,409 for insuffi- ciency of evidence, it may no longer be included in CLDCs future claims. CLDC cannot be allowed to circum- vent the denial of its request for a tax credit by abandoning its appeal and filing a new claim. To reiterate, "an appellant who withdraws his appeal x x x must face the consequence of his withdrawal, such as the decision of the court a quo becoming final and execu- tory."
HICOBLINO M. CATLY (Deceased), Substituted by his wife, LOURDES A. CATLY vs. WILLIAM NAVARRO, ISAGANI NAVARRO, BELEN DOLLETON, FLORENTINO ARCIAGA, BAR- TOLOME PATUGA, DIONISIO IGNACIO, BERNARDINO ARGA- NA, AND ERLINDA ARGANA- DELA CRUZ, and AYALA LAND, INC. G.R. No. 167239 5 May 2010
FACTS: William Navarro and eight (8) other plaintiffs (Navarro, et al.) filed a Complaint against Las Pias Ventures, Inc. (now substituted by Ayala Land, Inc. [ALI]), for annul- ment of Transfer Certificate of Title (TCT) No. T-5332 and recovery of possession with damages.
While the case was pending before the trial court, both parties executed a Memorandum of Agreement (MOA), where Navarro, et al. waived, renounced and ceded in favor of ALI any and all rights of exclusive owner- 14
M A Y 2 0 1 1 V o l u m e I I I I s s u e N o . 9 ship over the subject properties and executed the Joint Motion for Judg- ment Based on Compromise express- ing their desire toward an amicable settlement.
Consequently, the parties executed an Amendatory Agreement incorporating the provision that Hicoblino shall be entitled to the amount of P30,000,000.00 as attorneys fees, subject to the trial courts approval.
The trial court, in a separate judgment ordered for the payment of the attor- neys fees based on the Amendatory Agreement. Hicoblino filed an Ex- Parte Motion to Issue Writ for Execu- tion of Judgment with the trial court to enforce his claim for attorneys fees pursuant to the Separate Judgment.
The parties opposed to Ex-Parte mo- tion of Hicoblino.
The trial court, ordered for the execu- tion of the attorneys fees, but only up to the amount of P1,000,000.00.
ISSUE: Whether or not the claim of Hicoblino in the amount of P30,000,000.00 as payment for attor- neys fees is unconscionable.
RULING: The claim of Hicoblino in the amount of P30,000,000.00 as pay- ment for attorneys fees is unconscion- able.
The principle of quantum meruit (as much as he deserves) may be a basis for determining the reasonable amount of attorneys fees. Quantum meruit is a device to prevent undue enrichment based on the equitable postulate that it is unjust for a person to retain benefit without paying for it. It is applicable even if there was a formal written con- tract for attorneys fees as long as the agreed fee was found by the court to be unconscionable. In fixing a reason- able compensation for the services rendered by a lawyer on the basis of quantum meruit, factors such as the time spent, and extent of services ren- dered; novelty and difficulty of the questions involved; importance of the subject matter; skill demanded; proba- bility of losing other employment as a result of acceptance of the proffered case; customary charges for similar services; amount involved in the con- troversy and the benefits resulting to the client; certainty of compensation; character of employment; and profes- sional standing of the lawyer, may be considered. Indubitably entwined with a lawyers duty to charge only reasonable fee is the power of the Court to reduce the amount of attor- neys fees if the same is excessive and unconscionable in relation to Sec. 24, Rule 138 of the Rules. Attorneys fees are unconscionable if they affront ones sense of justice, decency or un- reasonableness.
Verily, the determination of the amount of reasonable attorneys fees requires the presentation of evidence and a full-blown trial. It would be only after due hearing and evaluation of the evidence presented by the par- ties that the trial court can render judg- ment as to the propriety of the amount to be awarded.
ASIAN TERMINALS, INC. vs. MALAYAN INSURANCE, CO., INC. G.R. No. 171406 4 April 2011
FACTS: In November 1995, Shandong Weifang Soda Ash Plant (Shandong) shipped on board 60,000 plastic bags of soda ash dense (each bag weighing 50 kilograms) from China to Manila. The shipment was insured with Malayan Insur- ance Company, Inc. (Malayan) covered by a Bill of Lading issued by Tianjin Naviga- tion Company (Tianjin) with Philippine Banking Corporation (PBC) as the con- signee and Chemphil Albright and Wilson Corporation (Chemphil) as the notify par- ty.
Upon arrival of the vessel in Manila, the stevedores of Asian Terminals, Inc. (ATI) providing arrastre and stevedoring ser- vices, unloaded the 60,000 bags of soda ash dense from the vessel and brought them to the open storage area of ATI for temporary storage and safekeeping, When the unloading of the bags was completed 2,702 bags were found to be in bad order condition.
After all the bags were transferred and unloaded in the warehouses of PBC, a total of 2,881 bags were in bad order condition due to spillage, caking, and hardening of the contents.
Malayan paid the value of the lost/ dam- aged cargoes to the PBC in the amount of P643,600.25.
Shandong filed before the Regional Trial Court (RTC) a Complaint for damages against ATI, the shipper Inchcape Ship- ping Services (Inchcape), and MEC. 15
V o l u m e I I I I s s u e N o . 9 M A Y 2 0 1 1
RTC rendered a Decision finding ATI liable for the damage/loss sustained by the shipment but absolving Inchcape and MEC.
The Court of Appeals (CA) denied ATIs appeal.
ISSUE: Whether or not the non- presentation of the insurance contract or policy is fatal to Malayans cause of action
RULING: The non-presentation of the insurance contract or policy is not fatal to Malayans cause of action
First of all, this was never raised as an issue before the RTC. In fact, it is not among the issues agreed upon by the par- ties to be resolved during the pre- trial. Neither was this issue raised on ap- peal. Basic is the rule that issues or grounds not raised below cannot be re- solved on review by the Supreme Court (SC), for to allow the parties to raise new issues is antithetical to the sporting idea of fair play, justice and due process.
The non-presenttion of the insurance con- tract or policy is not necessarily fa- tal. Citing Delsan Transport Lines, Inc. v. Court of Appeals, the SC ruled that the presentation in evidence of the marine insurance policy is not indispensa- ble before the insurer may recover from the common carrier the insured value of the lost cargo in the exercise of its subroga- tory right. The right of subrogation ac- crues simply upon payment by the insur- ance company of the insurance claim.
LEGEND INTERNATIONAL RE- SORTS LIMITED vs. KILUSANG MANGGAGAWA NG LEGENDA (KML- INDEPENDENT) G.R. No. 169754 23 February 2011
FACTS: Kilusang Manggagawa ng Legenda (KML) filed with the DOLE, a Petition for Certification Election. KML alleged that it is a legitimate labor organi- zation of the rank and file employees of Legend International Resorts Limited (Legend).
Legend moved to dismiss
the petition al- leging that KML is not a legitimate labor organization because its membership is a mixture of rank and file and supervisory employees in violation of Article 245 of the Labor Code.
The Med-Arbiter rendered judg- ment dismissing for lack of merit the peti- tion for certification election.
KML thus appealed to the Office of the Secretary of the DOLE which reversed the Med-Arbiters ruling.
Legend filed a Motion for Reconsidera- tion and Petition for Cancellation of Union Registration. The DOLE denied Legends Motion for Reconsideration and granted the Petition for Cancellation of Union Registration.
Legend filed a Petition for Certiorari with the Court of Appeals (CA) which the latter dismissed for lack of merit.
The Motion for Reconsideration filed by Legend was likewise denied.
ISSUE: (1.) Whether or not a certifica- tion election may be conducted during the pendency of the cancellation proceedings; (2.) Whether or not the legitimacy of the legal personality of KML can be collateral- ly attacked in a petition for certification election.
RULING: With regard to the first issue, a certification election may be conducted during the pendency of the cancellation proceedings.
The Supreme Court following ruling in the case of Associated Labor Unions (ALU) v. Ferrer-Calleja, 179 SCRA 127 [1989] and Philippine Telegraph and Telephone Corporation v. NLRC, 183 SCRA 451 [1990] ruled that an order to hold a certifi- cation election is proper despite the pen- dency of the petition for cancellation of the registration certificate of the union. The rationale for this is that at the time the un- ion filed its petition, it still had the legal personality to perform such act absent an order directing the cancellation.
As regards the second issue, the legitimacy of the legal personality of KML cannot be collaterally attacked in a petition for certifi- cation election.
The legal personality of a legitimate labor organization cannot be subject to a collat- eral attack. The law is very clear on this matter. The Implementing Rules stipulate that a labor organization shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration. Once a certificate of registra- tion is issued to a union, its legal personali- ty cannot be subject to a collateral at- tack. In may be questioned only in an 16
M A Y 2 0 1 1 V o l u m e I I I I s s u e N o . 9 independent petition for cancellation in accordance with Section 5 of Rule V, Book V of the Implementing Rules.
NATIONWIDE SECURITY AND ALLIED SERVICES, INC. vs. RONALD P. VALDERAMA G.R. No. 186614 23 February 2011
FACTS: Ronald Valderama (Valderama) was hired by Nationwide Security and Allied Services, Inc. (NSAS) as security guard in 2002. He was assigned at the Philippine Heart Center (PHC), Quezon City, until his relief in 2006. Valderama was not given any assignment thereafter. He filed a complaint for constructive dis- missal and nonpayment of 13 th month pay, with prayer for damages against NSAS and Romeo Nolasco (Nolasco). The Labor Arbiter (LA) ruled that Valderama was constructively dis- missed. On appeal, the National Labor Rela- tions Commission (NLRC) modified the LA decision and ruled that Valde- rama remained an employee of NSAS. The NLRC thus ordered Val- derama to immediately report to NSAS and assume his duty. Valderama filed a motion for recon- sideration before the NLRC but the same was denied. On appeal, the Court of Appeals sus- tained Valderamas claim of construc- tive dismissal. NSAS filed a motion for reconsideration, but the CA denied it.
ISSUE: Whether or not Valderama is considered to have abandoned his em- ployment.
RULING: Valderama cannot be con- sidered to have abandoned his em- ployment. Resignation is the voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and one has no other choice but to dissociate one- self from employment. It is a formal pronouncement or relinquishment of an office. The intent to relinquish must concur with the overt act of relinquish- ment. Thus, the acts of the employee before and after the alleged resigna- tion must be considered in determin- ing whether, he or she, in fact, intend- ed to sever his or her employment. Should the employer interpose the defense of resignation, it is incumbent upon the employer to prove that the employee voluntarily resigned. On this point, the Supreme Court held that NSAS failed to discharge its burden. Moreover, the filing of a complaint belies NSASs claim that Valderama voluntarily resigned. In cases involving security guards, a relief and transfer order in itself does not sever employment relationship between a security guard and his agen- cy. An employee has the right to secu- rity of tenure, but this does not give him a vested right to his position as would deprive the company of its pre- rogative to change his assignment or transfer him where his service, as se- curity guard, will be most beneficial to the client. Temporary off-detail or the period of time security guards are made to wait until they are transferred or assigned to a new post or client does not constitute constructive dis- missal, so long as such status does not continue beyond six months.
17
M A Y 2 0 1 1 V o l u m e I I I I s s u e N o . 9
A barber gave a haircut to a priest one day. The priest tried to pay for the haircut, but the barber refused, saying, "you do Gods work." The next morn- ing the barber found a dozen bibles at the door to his shop.
A policeman came to the barber for a haircut, and again the barber refused to pay, saying, "you protect the public." The next morning the barber found a dozen doughnuts at the door to his shop.
A lawyer came to the barber for a haircut, and again the barber refused pay- ment, saying, "you serve the justice system." The next morning the barber found a dozen lawyers waiting for a free haircut.
JLs Corner Volume III Issue No. 9 May 2011 LAGUNDI CARONAN AND ASSOCI ATES FREE HAIRCUTS
Clyde C. Gomm v. Gary Deland, Director, Utah State Department of Corrections, Gerald Cook, Warden, Utah State Prison, Blen Freestone, Medical Director, John Middleton, M.D., Eric Call, Nurse Practitioner, Leonard Higley, Capt. Karl Bartell, Marion Painter, Roger Burnett, Ronald Benson, and Carol Horlacher, 931 F.2d 62, 10th Cir. (1991)
PHILLIP D. KLINE, Petitioner, v.KANSAS DISCIPLINARY ADMINISTRATOR, Respondent. On Petition For Writ of CertiorariTo The Kansas Supreme Courte - Cert Petition