[G.R. No. 125221.

June 19, 1997]

REYNALDO M. LOZANO, petitioner, vs. HON. ELIEZER R. DE LOS SANTOS,

Presiding Judge, RTC, Br. 58, Angeles City; and ANTONIO
ANDA, respondents.
DECISION
PUNO, J.:
This petition for certiorari seeks to annul and set aside the decision of the Regional
Trial Court, Branch 58, Angeles City which ordered the Municipal Circuit Trial Court,
Mabalacat and Magalang, Pampanga to dismiss Civil Case No. 1214 for lack of
jurisdiction.
The facts are undisputed. On December 19, 1995, petitioner Reynaldo M. Lozano
filed Civil Case No. 1214 for damages against respondent Antonio Anda before
the Municipal
Circuit
Trial
Court
(MCTC),
Mabalacat
and Magalang,
Pampanga. Petitioner alleged that he was the president of the Kapatirang MabalacatAngeles Jeepney Drivers' Association, Inc. (KAMAJDA) while respondent Anda was the
president of the Samahang Angeles-Mabalacat Jeepney Operators' and Drivers'
Association, Inc. (SAMAJODA); in August 1995, upon the request of the Sangguniang
Bayan of Mabalacat, Pampanga, petitioner and private respondent agreed to consolidate
their respective associations and form the Unified Mabalacat-Angeles Jeepney Operators'
and Drivers' Association, Inc. (UMAJODA); petitioner and private respondent also
agreed to elect one set of officers who shall be given the sole authority to collect the daily
dues from the members of the consolidated association; elections were held on October
29, 1995 and both petitioner and private respondent ran for president; petitioner
won; private respondent protested and, alleging fraud, refused to recognize the results of
the election; private respondent also refused to abide by their agreement and continued
collecting the dues from the members of his association despite several demands to
desist.Petitioner was thus constrained to file the complaint to restrain private respondent
from collecting the dues and to order him to pay damages in the amount of P25,000.00
and attorney's fees of P500.00.[1]
Private respondent moved to dismiss the complaint for lack of jurisdiction, claiming
that jurisdiction was lodged with the Securities and Exchange Commission (SEC). The
MCTC denied the motion on February 9, 1996. [2] It denied reconsideration on March 8,
1996.[3]
Private respondent filed a petition for certiorari before the Regional Trial Court,
Branch 58, Angeles City.[4] The trial court found the dispute to be intracorporate, hence,
subject to the jurisdiction of the SEC, and ordered the MCTC to dismiss Civil Case No.
1214 accordingly.[5] It denied reconsideration on May 31, 1996.[6]

Hence this petition. Petitioner claims that:

"THE RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND SERIOUS ERROR
OF LAW IN CONCLUDING THAT THE SECURITIES AND EXCHANGE
COMMISSION HAS JURISDICTION OVER A CASE OF DAMAGES BETWEEN
HEADS/PRESIDENTS OF TWO (2) ASSOCIATIONS WHO INTENDED TO
CONSOLIDATE/MERGE THEIR ASSOCIATIONS BUT NOT YET [SIC] APPROVED
AND REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION." [7]
The jurisdiction of the Securities and Exchange Commission (SEC) is set forth in
Section 5 of Presidential Decree No. 902-A. Section 5 reads as follows:
"Section 5. x x x [T]he Securities and Exchange Commission [has] original and exclusive
jurisdiction to hear and decide cases involving:
(a) Devices or schemes employed by or any acts of the board of directors, business
associates, its officers or partners, amounting to fraud and misrepresentation which may
be detrimental to the interest of the public and/or of the stockholders, partners, members
of associations or organizations registered with the Commission.
(b) Controversies arising out of intracorporate or partnership relations, between and
among stockholders, members or associates; between any or all of them and the
corporation, partnership or association of which they are stockholders, members, or
associates, respectively; and between such corporation, partnership or association and the
state insofar as it concerns their individual franchise or right to exist as such entity.
(c) Controversies in the election or appointment of directors, trustees, officers or
managers of such corporations, partnerships or associations.
(d) Petitions of corporations, partnerships or associations to be declared in the state of
suspension of payments in cases where the corporation, partnership or association
possesses sufficient property to cover all its debts but foresees the impossibility of
meeting them when they respect very fall due or in cases where the corporation,
partnership or association has no sufficient assets to cover its liabilities, but is under the
management of a Rehabilitation Receiver or Management Committee created pursuant to
this Decree."
The grant of jurisdiction to the SEC must be viewed in the light of its nature and function
under the law.[8] This jurisdiction is determined by a concurrence of two elements: (1) the
status or relationship of the parties; and (2) the nature of the question that is the subject of
their controversy.[9]
The first element requires that the controversy must arise out of intracorporate or
partnership relations between and among stockholders, members, or associates; between
any or all of them and the corporation, partnership or association of which they are
stockholders, members or associates, respectively; and between such corporation,

partnership or association and the State in so far as it concerns their individual franchises.
[10]
The second element requires that the dispute among the parties be intrinsically
connected with the regulation of the corporation, partnership or association or deal with
the internal affairs of the corporation, partnership or association. [11] After all, the principal
function of the SEC is the supervision and control of corporations, partnerships and
associations with the end in view that investments in these entities may be encouraged
and protected, and their activities pursued for the promotion of economic development.[12]
There is no intracorporate nor partnership relation between petitioner and private
respondent. The controversy between them arose out of their plan to consolidate their
respective jeepney drivers' and operators' associations into a single common
association. This unified association was, however, still a proposal. It had not been
approved by the SEC, neither had its officers and members submitted their articles of
consolidation in accordance with Sections 78 and 79 of the Corporation
Code. Consolidation becomes effective not upon mere agreement of the members but
only upon issuance of the certificate of consolidation by the SEC. [13] When the SEC, upon
processing and examining the articles of consolidation, is satisfied that the consolidation
of the corporations is not inconsistent with the provisions of the Corporation Code and
existing laws, it issues a certificate of consolidation which makes the reorganization
official.[14] The new consolidated corporation comes into existence and the constituent
corporations dissolve and cease to exist.[15]
The KAMAJDA and SAMAJODA to which petitioner and private respondent
belong are duly registered with the SEC, but these associations are two separate
entities. The dispute between petitioner and private respondent is not within the
KAMAJDA nor the SAMAJODA. It is between members of separate and distinct
associations. Petitioner and private respondent have no intracorporate relation much less
do they have an intracorporate dispute. The SEC therefore has no jurisdiction over the
complaint.
The doctrine of corporation by estoppel[16] advanced by private respondent cannot
override jurisdictional requirements. Jurisdiction is fixed by law and is not subject to the
agreement of the parties.[17] It cannot be acquired through or waived, enlarged or
diminished by, any act or omission of the parties, neither can it be conferred by the
acquiescence of the court.[18]
Corporation by estoppel is founded on principles of equity and is designed to prevent
injustice and unfairness.[19] It applies when persons assume to form a corporation and
exercise corporate functions and enter into business relations with third persons. Where
there is no third person involved and the conflict arises only among those assuming the
form of a corporation, who therefore know that it has not been registered, there is no
corporation by estoppel.[20]
IN VIEW WHEREOF, the petition is granted and the decision dated April 18, 1996
and the order dated May 31, 1996 of the Regional Trial Court, Branch 58, Angeles City
are set aside. The Municipal Circuit Trial Court of Mabalacat and Magalang, Pampanga is
ordered to proceed with dispatch in resolving Civil Case No. 1214. No costs.
SO ORDERED.

[G.R. No. 117010. April 18, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ENGR. CARLOS GARCIA

y PINEDA, PATRICIO BOTERO y VALES, LUISA MIRAPLES (at
large), accused, PATRICIO BOTERO y VALES, accused-appellant.
DECISION
PUNO, J.:
Before us is an appeal from the decision of the Regional Trial Court in Criminal Case
No. 93871 convicting accused-appellant Patricio Botero of illegal recruitment in large
scale and sentencing him to suffer the penalty of life imprisonment.[1]
In an Information dated July 21, 1992, accused-appellant Patricio Botero together
with Carlos P. Garcia and Luisa Miraples were charged with the crime of illegal
recruitment in large scale defined by Article 38 (b) and penalized under Article 39 (a) of
the Labor Code, as amended by Presidential Decree Nos. 1920 and 2018, committed as
follows:
"That on or before March 2, 1992, and subsequently thereafter, in the
Municipality of Mandaluyong, Metro Manila, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping and aiding each other, representing
themselves to have authority, license and/or permit to contract, enlist and recruit
workers for overseas employment, did then and there willfully, unlawfully and
feloniously for a fee, recruit and promise job placement/employment abroad to
the following individuals, to wit:
1. Gloria Silaras y Barbero
2. Rolando Consigna y Ogana
3. Ma. Carmen Daluaidao
4. Zosimo La Puebla, Jr.
5. Mario Espada y Melodia
6. Arnel Santilla y Villalos
7. Elsa Delubio
8. Abener Siriban y Abatuan
9. Franklin Cabingan y Casalla
10. Jose Erwin Estinoso
11. Edgardo Belen y Juanillo
12. Ariel Rivada y Pascual
13. Sunny Pinco y Pascua
14. Rolando Santiago y Magno
15. Alfredo Estinoso y Estrada
16. Luisito Vargas y Quizon

without first securing the required license or authority from the Department of
Labor and Employment.
Contrary to law."[2] (Emphasis supplied.)
Accused Garcia and Botero pleaded not guilty upon arraignment on January 19, 1993
and March 31, 1993, respectively. Miraples remained at large as the warrant of arrest
against her was returned unserved. A joint trial was conducted against the two (2) accused
considering that their cases involve the same parties and issues.[3]
Six (6) out of the sixteen (16) complainants testified as prosecution witnesses.
These complainants were Edgardo Belen, Gloria Silaras, Alfredo Estinoso, Jose Erwin
Esclada, Elsa Delubio and Ariel Rivada. They testified that on various dates in March
1992, they went to Ricorn Philippine International Shipping Lines, Inc. (hereinafter
Ricorn), an entity which recruits workers for overseas employment, with office at Rm.
410, Jovan Building, 600 Shaw Blvd., Mandaluyong, Metro Manila. They applied as
seamen, cook, waiter, chambermaid or laundrywoman overseas. [5] Esclada applied to
accused Botero. All the other complainants coursed their application to accused Garcia
who represented himself as president of Ricorn. [6] Complainants were required to submit
their NBI and police clearance, birth certificate, passport, seaman's book and Survival of
Life at Sea (SOLAS).[7] As they did not have the last three (3) documents, they were
asked to pay five thousand pesos (P5,000.00) as processing fee. They paid to Ricorn's
treasurer, Luisa Miraples.[8] They were issued receipts signed by Miraples. The receipts
were under Ricorn's heading.[9]
[4]

Garcia and Botero assured complainants of employment after the May 11, 1992
election. Accused Botero, as the vice-president of Ricorn, followed-up their passports,
seaman's book and SOLAS. He told some applicants to wait for their papers and
informed the others that their papers were in order.
After the election, complainants went back to Ricorn to check on their
applications. They discovered that Ricorn had abandoned its office at Jovan Building for
non-payment of rentals.[10] Hoping against hope, they went back to the building several
times to recover their money. Their persistence was to no avail for Garcia and Botero
were nowhere to be found. They then went to the Mandaluyong Police Station and filed
their complaints.[11] They also checked with the Securities and Exchange Commission
(SEC) and discovered that Ricorn was not yet incorporated. They also found that Ricorn
was not licensed by the Department of Labor and Employment (DOLE) to engage in
recruitment activities.[12]
Accused Garcia testified that he is an electrical engineer by profession. According to
him, the group of Teresita Celso, Patricio Botero, Alice Mayonte, Luisa Miraples and
Edna Hemolaga approached him at a baptismal party to join Ricorn. He was asked to
contribute one hundred thousand pesos (P100,000.00). He told them he would borrow the
money from his brother in the United States.
In February 1992, accused Garcia saw the group again in a small apartment in San
Juan which they utilized as their office. He met them once more at Ricorn's office at
Jovan Bldg. where there were many applicants for overseas jobs. This time, they asked
him to become Ricorn's president and to contribute only twenty thousand pesos

(P20,000.00). He declined the offer. Allegedly, he already knew that Ricorn was not
licensed by the Philippine Overseas Employment Agency (POEA) or registered as a
corporation with the Securities and Exchange Commission (SEC). He denied he issued
receipts to complainants in this case.[13]
Accused-appellant Botero is a marine engineer by profession but was working as a
barber when the trial took place. He testified that he became acquainted with Ricorn
when he applied for overseas employment as a machinist. He dealt with accused Garcia
who claimed to be the President of Ricorn. Eventually, he gained the trust of Garcia and
became an employee of Ricorn. Three (3) times a week, he reported for work at Jovan
Building.[14] As a former seaman, he was familiar with the processing of passport,
seaman's book and SOLAS. His job consisted in following-up these documents. He left
Ricorn when he discovered it was not licensed by the POEA nor was it registered with the
SEC.[15] He denied he recruited the complainants and received any money from them.
[16]
However, on cross-examination, he admitted that in February 1992, he met Garcia in
TADE recruitment agency. Garcia convinced him to become one of the incorporators of
Ricorn. He gave money to Garcia for Ricorn's registration with the SEC. They held office
at Jovan Building from March 2, 1992 to April 20, 1992.[17]
After trial, accused Garcia and Botero were convicted in a decision dated April 19,
1995, to wit:
"WHEREFORE, in view of the foregoing, accused CARLOS P. GARCIA and
PATRICIO BOTERO are found guilty beyond reasonable doubt of the offense of
illegal recruitment on (sic) a large scale constituting economic sabotage under
Article 38(b) and punishable under Article 39(a) of the Labor Code as amended
and are sentenced to suffer the penalty of life imprisonment and to pay a fine
of P100,000.00 each. They are also ordered to indemnify and pay jointly and
severally each of the six (6) complainants the amount of P5,000.00. Both
accused are also ordered to pay the cost of suit.
SO ORDERED."[18]
The case against accused Miraples was archived by the court. [19] She has remained at
large.
Only accused Botero, thru counsel, filed a Notice of Appeal. In his Brief, he raises
the following assignments of error, to wit:[20]
"I
"THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE
PRESENTED BY THE PROSECUTION AGAINST ACCUSED-APPELLANT
PATRICIO BOTERO IS SUFFICIENT FOR CONVICTION
II
"THE LOWER COURT ERRED IN NOT HOLDING THAT IN TRUTH AND
IN FACT THE ACCUSED-APPELLANT PATRICIO BOTERO DID NOT
CONSPIRE WITH CO-ACCUSED CARLOS P. GARCIA.
III

"THE LOWER COURT ERRED IN NOT HOLDING THAT ACCUSEDAPPELLANT PATRICIO BOTERO IS NOT RESPONSIBLE FOR ILLEGAL
RECRUITMENT ACTIVITIES OF CO-ACCUSED CARLOS P. GARCIA.
IV
"THE LOWER COURT ERRED IN GIVING CREDENCE TO THE
TESTIMONY OF JOSE ERWIN ESCLADA WHICH IS NOT ADMISSIBLE
FOR BEING INCONSISTENT, HIGHLY IMPROBABLE AND
EXAGGERATED AND IN NOT GIVING WEIGHT TO THE ACCUSEDAPPELLANT PATRICIO BOTERO'S EVIDENCE."
We sustain appellant's conviction.
Appellant Botero predicates his appeal on the alleged insufficiency of evidence to
support his conviction. More particularly, he assails the credibility of witness Esclada.
Esclada initially testified that he dealt with accused Garcia when he filed his
application with Ricorn as a seaman. On cross-examination, however, he admitted it was
really accused Botero with whom he transacted, viz:
"Q But I thought you stated earlier on the third time, you talked to a certain
Edna because Carlos Garcia is not around (sic) on the same time, it was
Carlos Garcia who instructed you to give P5,000.00.
"A I have told a lie, sir. My conscience could not take it.
"COURT TO THE WITNESS
"Q So, what is the truth now because I will put you in jail?
"A When I applied at Ricorn (Phil.) with Mr. Botero, Mr. Garcia was not
around but it was Botero who said that my papers were alright."[21]
In effect, accused-appellant Botero wants this court to apply the doctrine of falsus in
uno, falsus in omnibus (false in one part, false in everything) and to disregard the entire
testimony of Esclada.
Under present jurisprudence, this maxim of law is rarely adhered to by the courts.
It is possible to admit and lend credence to the testimony of a witness whom the Court
has earlier found to have willfully perjured himself. "x x x (T)he testimony of a witness
may be believed in part and disbelieved in part, depending upon the corroborative
evidence and the probabilities and improbabilities of the case." [23]In the case at bar, we
hold that the trial court did not err in giving credence to the testimony of Esclada against
appellant Botero since it was corroborated on its material points by the testimony of other
witnesses. In fact, Esclada's testimony against Botero is trustworthy as he gave it after his
conscience bothered him for not telling the truth.
[22]

We reject appellant Botero's pretense that he is also a victim rather than a culprit in
this case. He insist he was a mere applicant of Ricorn and not a conspirator of the other
accused who defrauded the complainants. He claims that even as a Ricorn employee, he
merely performed "minimal activities" like following-up applicants' passports, seaman's
book and SOLAS, and conducting simple interviews. He denies he had a hand in the

selection of workers to be employed abroad.[24] These submissions are at war with the
evidence on record. His co-accused Garcia introduced him to the complainants as the
vice-president of Ricorn. He used a table with a nameplate confirming he was the vicepresident of Ricorn.[25] He procured the passports, seaman's books and SOLAS for the
applicants. It was from him that the complainants inquired about the status of their
applications.[26] He also admitted he gave money to accused Garcia for Ricorn's
incorporation.
Beyond any reasonable doubt, appellant Botero engaged in recruitment and
placement activities in that he, through Ricorn, promised the complainants employment
abroad. Under the Labor Code, recruitment and placement refers to "any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and
includes referrals, contract services, promising or advertising for employment, locally or
abroad whether for profit or not: Provided, That any person or entity which in any
manner, offers or promises for a fee employment to two or more persons shall be deemed
engaged in recruitment and placement."[27]
All the essential elements of the crime of illegal recruitment in large scale are present
in this case, to wit:
"(1) the accused engages in the recruitment and placement of workers, as defined under
Article 13 (b) or in any prohibited activities under Article 34 of the Labor Code;
"(2) accused has not complied with the guidelines issued by the Secretary of Labor and
Employment, particularly with respect to the securing of a license or an authority to
recruit and deploy workers, either locally or overseas; and
"(3) accused commits the same against three (3) or more persons, individually or as a
group."[28]
It is a fact that Ricorn had no license to recruit from DOLE. In the office of Ricorn, a
notice was posted informing job applicants that its recruitment license is still being
processed. Yet, Ricorn already entertained applicants and collected fees for processing
their travel documents.[29]
For engaging in recruitment of workers without obtaining the necessary license from
the POEA, Botero should suffer the consequences of Ricorn's illegal act for "(i)f the
offender is a corporation, partnership, association or entity, the penalty shall be imposed
upon the officer or officers of the corporation, partnership, association or entity
responsible for violation; x x x"[30] he evidence shows that appellant Botero was one of
the incorporators of Ricorn. For reasons that cannot be discerned from the records,
Ricorn's incorporation was not consummated.Even then, appellant cannot avoid his
liabilities to the public as an incorporator of Ricorn. He and his co-accused Garcia held
themselves out to the public as officers of Ricorn. They received money from applicants
who availed of their services. They are thus estopped from claiming that they are not
liable as corporate officials of Ricorn.[31] Section 25 of the Corporation Code provides
that "(a)ll persons who assume to act as a corporation knowing it to be without authority
to do so shall be liable as general partners for all the debts, liabilities and damages

incurred or arising as a result thereof: Provided, however, That when any such ostensible
corporation is sued on any transaction entered by it as a corporation or on any tort
committed by it as such, it shall not be allowed to use as a defense its lack of corporate
personality."
Appellant Botero is guilty of the crime of illegal recruitment in a large scale
considering it was proven that he, together with his cohorts, were able to defraud the six
complainant-witnesses in this case. Under Article 38 (b) of the Labor Code, illegal
recruitment in large scale is perpetrated if committed against three (3) or more persons
individually or as a group. And under Article 39 (a) of the same Code, accusedappellant's crime is punishable by life imprisonment and a fine of one hundred thousand
pesos (P100,000.00).
Finally, it is fruitless for appellant to deny he conspired with his co-accused to
commit the crime at bar. The fact that all the accused were co-conspirators in defrauding
the complainants could be inferred from their acts. They played different roles in
defrauding complainants: accused Garcia was the president, appellant Botero was the
vice-president and accused-at-large Miraples was the treasurer of Ricorn.[32] Each one
played a part in the recruitment of complainants. They were indispensable to each other.
IN VIEW WHEREOF, the decision of the Regional Trial Court convicting accusedappellant Patricio Botero of the crime of illegal recruitment in large scale is affirmed in
all respects. Costs against accused-appellant.
SO ORDERED.
G.R. Nos. L-48195 and 48196

May 1, 1942

SOFRONIO T. BAYLA, ET AL., petitioners,

vs.
SILANG TRAFFIC CO., INC., respondent.
SILANG TRAFFIC CO., petitioner, vs. SOFRONIO BAYLA, ET AL., respondents.
E. A. Beltran for petitioners.
Conrado V. Sanchez, Melchor C. Benitez, and Enrique M. Fernando for respondent.
OZAETA, J.:
Petitioners in G.R. No. 48195 instituted this action in the Court of First Instance of Cavite
against the respondent Silang Traffic Co., Inc. (cross-petitioner in G.R. No. 48196), to
recover certain sums of money which they had paid severally to the corporation on
account of shares of stock they individually agreed to take and pay for under certain
specified terms and conditions, of which the following referring to the petitioner Josefa
Naval, is typical:
AGREEMENT FOR INSTALLMENT SALE OF SHARES IN THE "SILANG TRAFFIC
COMPANY, INC.,"

Silang, Cavite, P. I.
THIS AGREEMENT, made and entered into between Mrs. Josefa Naval, of legal age,
married and resident of the Municipality of Silang, Province of Cavite, Philippine Islands,
party of the First Part, hereinafter called the subscriber, and the "Silang Traffic Company,
Inc.," a corporation duly organized and existing by virtue of and under the laws of the
Philippine Islands, with its principal office in the Municipality of Silang, Province of
Cavite, Philippine Islands, party of the Second Part, hereinafter called the seller,
WITNESSETH:
That the subscriber promises to pay personally or by his duly authorized agent to the
seller at the Municipality of Silang, Province of Cavite, Philippine Islands, the sum of one
thousand five hundred pesos (P1,500), Philippine currency, as purchase price of
FIFTEEN (15) shares of capital stock, said purchase price to be paid as follows, to wit:
five (5%) per cent upon the execution of the contract, the receipt whereof is hereby
acknowledged and confessed, and the remainder in installments of five per cent, payable
within the first month of each and every quarter thereafter, commencing on the 1st day of
July, 1935, with interest on deferred payments at the rate of SIX (6%) per cent per annum
until paid.
That the said subscriber further agrees that if he fails to pay any of said installment when
due, or to perform any of the aforesaid conditions, or if said shares shall be attached or
levied upon by creditors of the said subscriber, then the said shares are to revert to the
seller and the payments already made are to be forfeited in favor of said seller, and the
latter may then take possession, without resorting to court proceedings.
The said seller upon receiving full payment, at the time and manner hereinbefore
specified, agrees to execute and deliver to said subscriber, or to his heirs and assigns, the
certificate of title of said shares, free and clear of all encumbrances.
In testimony whereof, the parties have hereunto set their hands in the Municipality of
Silang, Province of Cavite, Philippine Islands, this 30th day of March, 1935.
(Sgd.) JOSEFA NAVAL
SILANG TRAFFIC COMPANY, INC.
Subscriber
By (Sgd.) LINO GOMEZ
President.
(Exhibit 1. Notarial acknowledgment omitted.)

The agreements signed by the other petitioners were of the same date (March 30, 1935)
and in identical terms as the foregoing except as to the number of shares and the
corresponding purchase price. The petitioners agreed to purchase the following number of
shares and, up to April 30, 1937, had paid the following sums on account thereof:

Sofronio T.
Bayla.......

8 shares

P360

Venancio
Toledo........

8 shares

375

Josefa
Naval..............

15 shares

675

Paz
Toledo................

15 shares

675

Petitioners' action for the recovery of the sums above mentioned is based on a resolution
by the board of directors of the respondent corporation on August 1, 1937, of the
following tenor:
A mocion sel Sr. Marcos Caparas y secundado por el Sr. Alejandro Bayla, que para el
bien de la corporacion y la pronta terminacion del asunto civil No. 3125 titulado "Vicente
F. Villanueva et al. vs. Lino Gomez et al.," en el Juzgado de Primera Instancia de Cavite,
donde se gasto y se gastara no poca cantidad de la Corporacion, se resolvio y se aprobo
por la Junta Directiva los siguientes:
(a) Que se dejara sin efecto lo aprobado por la Junta Directiva el 3 de marzo, 1935, art.
11, sec. 162, sobre las cobranzas que se haran por el Secretario Tesorero de la
Corporacion a los accionistas que habian tomado o suscrito nuevas acciones y que se
permitia a estos pagar 20% del valor de las acciones suscritas en un ao, con interes de
6% y el pago o jornal que se hara por trimestre.
(b) Se dejara sin efecto, en vista de que aun no esta pagado todo el valor de las 123
acciones, tomadas de las acciones no expedidas (unissued stock) de la Corporacion y que
fueron suscritas por los siguienes:

Lino
Gomez.....................

10 Acciones

Venancio
Toledo.............

8 Acciones

Melchor P.
Benitez........

17 Acciones

Isaias
Videa.................

14 Acciones

Esteban
Velasco............

10 Acciones

Numeriano S.
Aldaba....

15 Acciones

Inocencio
Cruz.................

8 Acciones

Josefa
Naval ..................

15 Acciones

Sofronio
Bayla.................

8 Acciones

Dionisio
Dungca.............

3 Acciones

y devolver a las personas arriba descritas toda la cantidad que estas habian pagado por las
123 acciones.
(c) Que se dejara sin efecto lo aprobado por la Junta Directiva el 3 marzo, 1935, art. V.
sec. 165, sobre el cambio o trueque de las 31 acciones del Treasury Stock, contra las 32
acciones del Sr. Numeriano Aldaba, en la corporacion Northern Luzon Transportation Co.
y que se devuelva al Sr. Numeriano Aldaba las 32 acciones mencionadas despues que el
haya devuelto el certificado de las 31 acciones de la Silang Traffic Co., Inc.
(d) Permitir al Tesorero de la Corporacion para que devuelva a las personas arriba
indicadas, las cantidades pagadas por las 123 acciones. (Exhibit A-1.)

The respondent corporation set up the following defenses: (1) That the above-quoted
resolution is not applicable to the petitioners Sofronio T. Bayla, Josefa Naval, and Paz
Toledo because on the date thereof "their subscribed shares of stock had already
automatically reverted to the defendant, and the installments paid by them had already
been forfeited"; and (2) that said resolution of August 1, 1937, was revoked and cancelled
by a subsequent resolution of the board of directors of the defendant corporation dated
August 22, 1937.
The trial court absolved the defendant from the complaint and declared canceled
(forfeited) in favor of the defendant the shares of stock in question. It held that the
resolution of August 1, 1937, was null and void, citing Velasco vs. Poizat (37 Phil., 802),
wherein this Court held that "a corporation has no legal capacity to release an original
subscriber to its capital stock from the obligation to pay for shares; and any agreement to
this effect is invalid" Plaintiffs below appealed to the Court of Appeals, which modified
of the trial court as follows:
That part of the judgment dismissing plaintiff's complaint is affirmed, but that part thereof
declaring their subscription canceled is reversed. Defendant is directed to grant plaintiffs
30 days after final judgment within which to pay the arrears on their subscription.
Without pronouncement as to costs.
Both parties appealed to this Court by petition and cross-petition
for certiorari. Petitioners insist that they have the right to recover the amounts involved
under the resolution of August 1, 1937, while the respondent and cross-petitioner on its
part contends that said amounts have been automatically forfeited and the shares of stock
have reverted to the corporation under the agreement hereinabove quoted.
The parties litigant, the trial court, and the Court of Appeals have interpreted or
considered the said agreement as a contract of subscription to the capital stock of the
respondent corporation. It should be noted, however, that said agreement is entitled
"Agreement for Installment Sale of Shares in the Silang Traffic Company, Inc.,"; that
while the purchaser is designated as "subscriber," the corporation is described as "seller";
that the agreement was entered into on March 30, 1935, long after the incorporation and
organization of the corporation, which took place in 1927; and that the price of the stock
was payable in quarterly installments spread over a period of five years. It also appears
that in civil case No. 3125 of the Court of First Instance of Cavite mentioned in the
resolution of August 1, 1937, the right of the corporation to sell the shares of stock to the
person named in said resolution (including herein petitioners) was impugned by the
plaintiffs in said case, who claimed a preferred right to buy said shares.
Whether a particular contract is a subscription or a sale of stock is a matter of
construction and depends upon its terms and the intention of the parties (4 Fletcher,
Cyclopedia of Corporation [permanent edition], 29, cited in Salmon, Dexter &
Co. vs. Unson (47 Phil. 649, 652). In the Unson case just cited, this Court held that a
subscription to stock in an existing corporation is, as between the subscriber and the
corporation, simply a contract of purchase and sale.

It seems clear from the terms of the contracts in question that they are contracts of sale
and not of subscription. The lower courts erred in overlooking the distinction between
subscription and purchase "A subscription, properly speaking, is the mutual agreement of
the subscribers to take and pay for the stock of a corporation, while a purchase is an
independent agreement between the individual and the corporation to buy shares of stock
from it at stipulated price." (18 C. J. S., 760.) In some particulars the rules governing
subscriptions and sales of shares are different. For instance, the provisions of our
Corporation Law regarding calls for unpaid subscription and assessment of stock
(sections 37-50) do not apply to a purchase of stock. Likewise the rule that corporation
has no legal capacity to release an original subscriber to its capital stock from the
obligation to pay for his shares, is inapplicable to a contract of purchase of shares.
The next question to determine is whether under the contract between the parties the
failure of the purchaser to pay any of the quarterly installments on the purchase price
automatically gave rise to the forfeiture of the amounts already paid and the reversion of
the shares to the corporation. The contract provides for interest of the rate of six per
centum per annum on deferred payments. It is also provides that if the purchaser fails to
pay any of said installments when due, the said shares are to revert to the seller and the
payments already made are to be forfeited in favor of said seller. The respondent
corporation contends that when the petitioners failed to pay the installment which fell due
on or before July 31, 1937, forfeiture automatically took place, that is to say, without the
necessity of any demand from the corporation, and that therefore the resolution of August
1, 1937, authorizing the refund of the installments already paid was inapplicable to the
petitioners, who had already lost any and all rights under said contract. The contention is,
we think, untenable. The provision regarding interest on deferred payments would not
have been inserted if it had been the intention of the parties to provide for automatic
forfeiture and cancelation of the contract. Moreover, the contract did not expressly
provide that the failure of the purchaser to pay any installment would give rise to
forfeiture and cancelation without the necessity of any demand from the seller; and under
article 1100 of the Civil Code persons obliged to deliver or do something are not in
default until the moment the creditor demands of them judicially or extrajudicially the
fulfillment of their obligation, unless (1) the obligation or the law expressly provides that
demand shall not be necessary in order that default may arise, (2) by reason of the nature
and circumstances of the obligation it shall appear that the designation of the time at
which that thing was to be delivered or the service rendered was the principal inducement
to the creation of the obligation.
Is the resolution of August 1, 1937, valid? The contract in question being one of purchase
and not subscription as we have heretofore pointed out, we see no legal impediment to its
rescission by agreement of the parties. According to the resolution of August 1, 1937, the
recission was made for the good of the corporation and in order to terminate the then
pending civil case involving the validity of the sale of the shares in question among
others. To that rescission the herein petitioners apparently agreed, as shown by their
demand for the refund of the amounts they had paid as provided in said resolution. It
appears from the record that said civil case was subsequently dismissed, and that the
purchasers of shares of stock, other than the herein petitioners, who were mentioned in

said resolution were able to benefit by said resolution. It would be an unjust

discrimination to deny the same benefit to the herein petitioners.
We may add that there is no intimation in this case that the corporation was insolvent, or
that the right of any creditor of the same was in any way prejudiced by the rescission.
The attempted revocation of said rescission by the resolution of August 22, 1937, was
invalid, it not having been agreed to by the petitioners.
Wherefore, the judgment of the court of appeals is hereby reversed and another judgment
will be entered against the defendant Silang Traffic Co., Inc., ordering it to pay to the
plaintiffs Sofronio T. Bayla, Venancio Toledo, Josefa Naval, and Paz Toledo, the sums of
P360, P375, P675, and P675, respectively, with legal interest on each of said sums from
May 28, 1938, the date of the filing of the complaint, until the date of payment, and with
costs in the three instances. So ordered.
Yulo, C.J., Moran, Paras and Bocobo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 108576

January 20, 1999

COMMISSIONER OF INTERNAL REVENUE, petitioner,

vs.
THE COURT OF APPEALS, COURT OF TAX APPEALS and A. SORIANO
CORP., respondents.

DECISION
MARTINEZ, J.:
Petitioner Commissioner of Internal Revenue (CIR) seeks the reversal of the decision of
the Court of Appeals (CA)1 which affirmed the ruling of the Court of Tax Appeals
(CTA) 2 that private respondent A. Soriano Corporations (hereinafter ANSCOR)
redemption and exchange of the stocks of its foreign stockholders cannot be considered
as essentially equivalent to a distribution of taxable dividends under, Section 83(b) of
the 1939 Internal Revenue Act. 3
The undisputed facts are as follows:

Sometime in the 1930s, Don Andres Soriano, a citizen and resident of the United States,
formed the corporation A. Soriano Y Cia, predecessor of ANSCOR, with a
P1,000,000.00 capitalization divided into 10,000 common shares at a par value of
P100/share. ANSCOR is wholly owned and controlled by the family of Don Andres, who
are all non-resident aliens. 4 In 1937, Don Andres subscribed to 4,963 shares of the 5,000
shares originally issued. 5
On September 12, 1945, ANSCORs authorized capital stock was increased to
P2,500,000.00 divided into 25,000 common shares with the same par value, of the
additional 15,000 shares, only 10,000 was issued which were all subscribed by Don
Andres, after the other stockholders waived in favor of the former their pre-emptive
rights to subscribe to the new issues. 6 This increased his subscription to 14,963 common
shares. 7 A month later, 8 Don Andres transferred 1,250 shares each to his two sons, Jose
and Andres, Jr., as their initial investments in ANSCOR. 9 Both sons are foreigners. 10
By 1947, ANSCOR declared stock dividends. Other stock dividend declarations were
made between 1949 and December 20, 1963. 11 On December 30, 1964 Don Andres
died. As of that date, the records revealed that he has a total shareholdings of 185,154
shares 12 50,495 of which are original issues and the balance of 134,659 shares as
stock dividend declarations. 13 Correspondingly, one-half of that shareholdings or
92,577 14 shares were transferred to his wife, Doa Carmen Soriano, as her conjugal
share. The other half formed part of his estate. 15
A day after Don Andres died, ANSCOR increased its capital stock to P20M 16 and in
1966 further increased it to P30M. 17 In the same year (December 1966), stock dividends
worth 46,290 and 46,287 shares were respectively received by the Don Andres
estate 18 and Doa Carmen from ANSCOR. Hence, increasing their accumulated
shareholdings to 138,867 and 138,864 19 common shares each. 20
On December 28, 1967, Doa Carmen requested a ruling from the United States Internal
Revenue Service (IRS), inquiring if an exchange of common with preferred shares may
be considered as a tax avoidance scheme 21under Section 367 of the 1954 U.S. Revenue
Act. 22 By January 2, 1968, ANSCOR reclassified its existing 300,000 common shares
into 150,000 common and 150,000 preferred shares. 23
In a letter-reply dated February 1968, the IRS opined that the exchange is only a
recapitalization scheme and not tax avoidance. 24 Consequently, 25 on March 31, 1968
Doa Carmen exchanged her whole 138,864 common shares for 138,860 of the newly
reclassified preferred shares. The estate of Don Andres in turn, exchanged 11,140 of its
common shares, for the remaining 11,140 preferred shares, thus reducing its (the estate)
common shares to 127,727. 26

On June 30, 1968, pursuant to a Board Resolution, ANSCOR redeemed 28,000 common
shares from the Don Andres estate. By November 1968, the Board further increased
ANSCORs capital stock to P75M divided into 150,000 preferred shares and 600,000
common shares. 27 About a year later, ANSCOR again redeemed 80,000 common shares
from the Don Andres estate, 28 further reducing the latters common shareholdings to
19,727. As stated in the Board Resolutions, ANSCORs business purpose for both
redemptions of stocks is to partially retire said stocks as treasury shares in order to reduce
the companys foreign exchange remittances in case cash dividends are declared. 29
In 1973, after examining ANSCORs books of account and records, Revenue examiners
issued a report proposing that ANSCOR be assessed for deficiency withholding tax-atsource, pursuant to Sections 53 and 54 of the 1939 Revenue Code, 30 for the year 1968
and the second quarter of 1969 based on the transactions of exchange 31 and redemption
of stocks. 31 The Bureau of Internal Revenue (BIR) made the corresponding assessments
despite the claim of ANSCOR that it availed of the tax amnesty under Presidential
Decree (P.D.) 23 32 which were amended by P.D.s 67 and 157. 33 However, petitioner
ruled that the invoked decrees do not cover Sections 53 and 54 in relation to Article 83(b)
of the 1939 Revenue Act under which ANSCOR was assessed. 34 ANSCORs subsequent
protest on the assessments was denied in 1983 by petitioner. 35
Subsequently, ANSCOR filed a petition for review with the CTA assailing the tax
assessments on the redemptions and exchange of stocks. In its decision, the Tax Court
reversed petitioners ruling, after finding sufficient evidence to overcome the prima
facie correctness of the questioned assessments. 36 In a petition for review the CA as
mentioned, affirmed the ruling of the CTA. 37 Hence, this petition.
The bone of contention is the interpretation and application of Section 83(b) of the 1939
Revenue Act 38 which provides:
Sec. 83. Distribution of dividends or assets by corporations.
(b) Stock dividends A stock dividend representing the transfer of surplus to capital
account shall not be subject to tax. However, if a corporation cancels or redeems stock
issued as a dividend at such time and in such manner as to make the distribution and
cancellation or redemption, in whole or in part, essentially equivalent to the distribution
of a taxable dividend, the amount so distributed in redemption or cancellation of the stock
shall be considered as taxable income to the extent it represents a distribution of earnings
or profits accumulated after March first, nineteen hundred and thirteen. (Emphasis
supplied)
Specifically, the issue is whether ANSCORs redemption of stocks from its stockholder as
well as the exchange of common with preferred shares can be considered as essentially

equivalent to the distribution of taxable dividend making the proceeds thereof taxable
under the provisions of the above-quoted law.
Petitioner contends that the exchange transaction is tantamount to cancellation under
Section 83(b) making the proceeds thereof taxable. It also argues that the Section applies
to stock dividends which is the bulk of stocks that ANSCOR redeemed. Further,
petitioner claims that under the net effect test, the estate of Don Andres gained from the
redemption. Accordingly, it was the duty of ANSCOR to withhold the tax-at-source
arising from the two transactions, pursuant to Section 53 and 54 of the 1939 Revenue
Act. 39
ANSCOR, however, avers that it has no duty to withhold any tax either from the Don
Andres estate or from Doa Carmen based on the two transactions, because the same
were done for legitimate business purposes which are (a) to reduce its foreign exchange
remittances in the event the company would declare cash dividends, 40 and to (b)
subsequently filipinized ownership of ANSCOR, as allegedly, envisioned by Don
Andres. 41 It likewise invoked the amnesty provisions of P.D. 67.
We must emphasize that the application of Sec. 83(b) depends on the special factual
circumstances of each case.42 The findings of facts of a special court (CTA) exercising
particular expertise on the subject of tax, generally binds this Court, 43 considering that it
is substantially similar to the findings of the CA which is the final arbiter of questions of
facts. 44 The issue in this case does not only deal with facts but whether the law applies
to a particular set of facts. Moreover, this Court is not necessarily bound by the lower
courts conclusions of law drawn from such facts. 45
AMNESTY:
We will deal first with the issue of tax amnesty. Section 1 of P.D. 67 46 provides:
1. In all cases of voluntary disclosures of previously untaxed income and/or wealth such
as earnings, receipts, gifts, bequests or any other acquisitions from any source whatsoever
which are taxable under the National Internal Revenue Code, as amended, realized here
or abroad by any taxpayer, natural or judicial; the collection of all internal revenue taxes
including the increments or penalties or account of non-payment as well as all civil,
criminal or administrative liabilities arising from or incident to such disclosures under the
National Internal Revenue Code, the Revised Penal Code, the Anti-Graft and Corrupt
Practices Act, the Revised Administrative Code, the Civil Service laws and regulations,
laws and regulations on Immigration and Deportation, or any other applicable law or
proclamation, are hereby condoned and, in lieu thereof, a tax of ten (10%) per centum on
such previously untaxed income or wealth, is hereby imposed, subject to the following
conditions: (conditions omitted) [Emphasis supplied].

The decree condones the collection of all internal revenue taxes including the
increments or penalties or account of non-payment as well as all civil, criminal or
administrative liable arising from or incident to (voluntary) disclosures under the NIRC
of previously untaxed income and/or wealth realized here or abroad by any taxpayer,
natural or juridical.
May the withholding agent, in such capacity, be deemed a taxpayer for it to avail of the
amnesty? An income taxpayer covers all persons who derive taxable
income. 47 ANSCOR was assessed by petitioner for deficiency withholding tax under
Section 53 and 54 of the 1939 Code. As such, it is being held liable in its capacity as a
withholding agent and not its personality as a taxpayer.
In the operation of the withholding tax system, the withholding agent is the payor, a
separate entity acting no more than an agent of the government for the collection of the
tax 48 in order to ensure its payments; 49 the payer is the taxpayer he is the person
subject to tax impose by law; 50 and the payee is the taxing authority. 51 In other words,
the withholding agent is merely a tax collector, not a taxpayer. Under the withholding
system, however, the agent-payor becomes a payee by fiction of law. His (agent) liability
is direct and independent from the taxpayer, 52 because the income tax is still impose on
and due from the latter. The agent is not liable for the tax as no wealth flowed into him
he earned no income. The Tax Code only makes the agent personally liable for the
tax 53 arising from the breach of its legal duty to withhold as distinguish from its duty to
pay tax since:
the governments cause of action against the withholding is not for the collection of
income tax, but for the enforcement of the withholding provision of Section 53 of the Tax
Code, compliance with which is imposed on the withholding agent and not upon the
taxpayer. 54
Not being a taxpayer, a withholding agent, like ANSCOR in this transaction is not
protected by the amnesty under the decree.
Codal provisions on withholding tax are mandatory and must be complied with by the
withholding agent. 55 The taxpayer should not answer for the non-performance by the
withholding agent of its legal duty to withhold unless there is collusion or bad faith. The
former could not be deemed to have evaded the tax had the withholding agent performed
its duty. This could be the situation for which the amnesty decree was intended. Thus, to
curtail tax evasion and give tax evaders a chance to reform, 56 it was deemed
administratively feasible to grant tax amnesty in certain instances. In addition, a tax
amnesty, much like a tax exemption, is never favored nor presumed in law and if granted
by a statute, the term of the amnesty like that of a tax exemption must be construed
strictly against the taxpayer and liberally in favor of the taxing authority. 57 The rule

on strictissimi juris equally applies. 58 So that, any doubt in the application of an

amnesty law/decree should be resolved in favor of the taxing authority.
Furthermore, ANSCORs claim of amnesty cannot prosper. The implementing rules of
P.D. 370 which expanded amnesty on previously untaxed income under P.D. 23 is very
explicit, to wit:
Sec. 4. Cases not covered by amnesty. The following cases are not covered by the
amnesty subject of these regulations:
xxx xxx xxx
(2) Tax liabilities with or without assessments, on withholding tax at source provided
under Section 53 and 54 of the National Internal Revenue Code, as amended; 59
ANSCOR was assessed under Sections 53 and 54 of the 1939 Tax Code. Thus, by
specific provision of law, it is not covered by the amnesty.
TAX ON STOCK DIVIDENDS
General Rule
Sec. 83(b) of the 1939 NIRC was taken from the Section 115(g)(1) of the U.S. Revenue
Code of 1928. 60 It laid down the general rule known as the proportionate test 61 wherein
stock dividends once issued form part of the capital and, thus, subject to income
tax. 62 Specifically, the general rule states that:
A stock dividend representing the transfer of surplus to capital account shall not be
subject to tax.
Having been derived from a foreign law, resort to the jurisprudence of its origin may shed
light. Under the US Revenue Code, this provision originally referred to stock dividends
only, without any exception. Stock dividends, strictly speaking, represent capital and do
not constitute income to its recipient. 63 So that the mere issuance thereof is not yet
subject to income tax 64 as they are nothing but an enrichment through increase in value
of
capital
investment. 65 As capital, the stock dividends postpone the realization of profits because
the fund represented by the new stock has been transferred from surplus to capital and
no longer available for actual distribution. 66 Income in tax law is an amount of money
coming to a person within a specified time, whether as payment for services, interest, or
profit from investment. 67 It means cash or its equivalent. 68 It is gain derived and
severed from capital, 69 from labor or from both combined 70 so that to tax a stock
dividend would be to tax a capital increase rather than the income. 71 In a loose sense,
stock dividends issued by the corporation, are considered unrealized gain, and cannot be
subjected to income tax until that gain has been realized. Before the realization, stock

dividends are nothing but a representation of an interest in the corporate properties. 72 As

capital, it is not yet subject to income tax. It should be noted that capital and income are
different. Capital is wealth or fund; whereas income is profit or gain or the flow of
wealth. 73 The determining factor for the imposition of income tax is whether any gain or
profit was derived from a transaction. 74
The Exception
However, if a corporation cancels or redeems stock issued as a dividend at such time and
in such manner as to make the distribution and cancellation or redemption, in whole or in
part, essentially equivalent to the distribution of a taxable dividend, the amount so
distributed in redemption or cancellation of the stock shall be considered as taxable
income to the extent it represents a distribution of earnings or profits accumulated after
March first, nineteen hundred and thirteen. (Emphasis supplied).
In a response to the ruling of the American Supreme Court in the case of Eisner v.
Macomber 75 (that pro rata stock dividends are not taxable income), the exempting
clause above quoted was added because provision corporation found a loophole in the
original provision. They resorted to devious means to circumvent the law and evade the
tax. Corporate earnings would be distributed under the guise of its initial capitalization by
declaring the stock dividends previously issued and later redeem said dividends by
paying cash to the stockholder. This process of issuance-redemption amounts to a
distribution of taxable cash dividends which was lust delayed so as to escape the tax. It
becomes a convenient technical strategy to avoid the effects of taxation.
Thus, to plug the loophole the exempting clause was added. It provides that the
redemption or cancellation of stock dividends, depending on the time and manner it
was made, is essentially equivalent to a distribution of taxable dividends, making the
proceeds thereof taxable income to the extent it represents profits. The exception was
designed to prevent the issuance and cancellation or redemption of stock dividends,
which is fundamentally not taxable, from being made use of as a device for the actual
distribution of cash dividends, which is taxable. 76 Thus,
the provision had the obvious purpose of preventing a corporation from avoiding
dividend tax treatment by distributing earnings to its shareholders in two transactions
a pro rata stock dividend followed by a pro rata redemption that would have the same
economic consequences as a simple dividend. 77
Although redemption and cancellation are generally considered capital transactions, as
such. they are not subject to tax. However, it does not necessarily mean that a shareholder
may not realize a taxable gain from such transactions. 78 Simply put, depending on the
circumstances, the proceeds of redemption of stock dividends are essentially distribution

of cash dividends, which when paid becomes the absolute property of the stockholder.
Thereafter, the latter becomes the exclusive owner thereof and can exercise the freedom
of choice. 79 Having realized gain from that redemption, the income earner cannot escape
income tax. 80
As qualified by the phrase such time and in such manner, the exception was not
intended to characterize as taxable dividend every distribution of earnings arising from
the redemption of stock dividend. 81 So that, whether the amount distributed in the
redemption should be treated as the equivalent of a taxable dividend is a question of
fact, 82 which is determinable on the basis of the particular facts of the transaction in
question. 83 No decisive test can be used to determine the application of the exemption
under Section 83(b). The use of the words such manner and essentially equivalent
negative any idea that a weighted formula can resolve a crucial issue Should the
distribution be treated as taxable dividend. 84 On this aspect, American courts developed
certain recognized criteria, which includes the following: 85
1) the presence or absence of real business purpose,
2) the amount of earnings and profits available for the declaration of a regular dividends
and the corporations past record with respect to the declaration of dividends,
3) the effect of the distribution, as compared with the declaration of regular dividend,
4) the lapse of time between issuance and redemption, 86
5) the presence of a substantial surplus 87 and a generous supply of cash which invites
suspicion as does a meager policy in relation both to current earnings and accumulated
surplus,88
REDEMPTION AND CANCELLATION
For the exempting clause of Section, 83(b) to apply, it is indispensable that: (a) there is
redemption or cancellation; (b) the transaction involves stock dividends and (c) the time
and manner of the transaction makes it essentially equivalent to a distribution of
taxable dividends. Of these, the most important is the third.
Redemption is repurchase, a reacquisition of stock by a corporation which issued the
stock 89 in exchange for property, whether or not the acquired stock is cancelled, retired
or held in the treasury. 90 Essentially, the corporation gets back some of its stock,
distributes cash or property to the shareholder in payment for the stock, and continues in
business as before. The redemption of stock dividends previously issued is used as a veil
for the constructive distribution of cash dividends. In the instant case, there is no dispute
that ANSCOR redeemed shares of stocks from a stockholder (Don Andres) twice (28,000
and 80,000 common shares). But where did the shares redeemed come from? If its source

is the original capital subscriptions upon establishment of the corporation or from initial
capital investment in an existing enterprise, its redemption to the concurrent value of
acquisition may not invite the application of Sec. 83(b) under the 1939 Tax Code, as it is
not income but a mere return of capital. On the contrary, if the redeemed shares are from
stock dividend declarations other than as initial capital investment, the proceeds of the
redemption is additional wealth, for it is not merely a return of capital but a gain thereon.
It is not the stock dividends but the proceeds of its redemption that may be deemed as
taxable dividends. Here, it is undisputed that at the time of the last redemption, the
original common shares owned by the estate were only 25,247.5 91 This means that from
the total of 108,000 shares redeemed from the estate, the balance of 82,752.5 (108,000
less 25,247.5) must have come from stock dividends. Besides, in the absence of evidence
to the contrary, the Tax Code presumes that every distribution of corporate property, in
whole or in part, is made out of corporate profits 92 such as stock dividends. The capital
cannot be distributed in the form of redemption of stock dividends without violating the
trust fund doctrine wherein the capital stock, property and other assets of the
corporation are regarded as equity in trust for the payment of the corporate
creditors. 93 Once capital, it is always capital. 94 That doctrine was intended for the
protection of corporate creditors. 95
With respect to the third requisite, ANSCOR redeemed stock dividends issued just 2 to 3
years earlier. The time alone that lapsed from the issuance to the redemption is not a
sufficient indicator to determine taxability. It is a must to consider the factual
circumstances as to the manner of both the issuance and the redemption. The time
element is a factor to show a device to evade tax and the scheme of cancelling or
redeeming the same shares is a method usually adopted to accomplish the end
sought. 96 Was this transaction used as a continuing plan, device or artifice to
evade payment of tax? It is necessary to determine the net effect of the transaction
between the shareholder-income taxpayer and the acquiring (redeeming)
corporation. 97 The net effect test is not evidence or testimony to be considered; it is
rather an inference to be drawn or a conclusion to be reached.98 It is also important to
know whether the issuance of stock dividends was dictated by legitimate business
reasons, the presence of which might negate a tax evasion plan. 99
The issuance of stock dividends and its subsequent redemption must be separate, distinct,
and not related, for the redemption to be considered a legitimate tax
scheme. 100 Redemption cannot be used as a cloak to distribute corporate
earnings. 101 Otherwise, the apparent intention to avoid tax becomes doubtful as the
intention to evade becomes manifest. It has been ruled that:

[A]n operation with no business or corporate purpose is a mere devise which put on
the form of a corporate reorganization as a disguise for concealing its real character, and
the sole object and accomplishment of which was the consummation of a preconceived
plan, not to reorganize a business or any part of a business, but to transfer a parcel of
corporate shares to a stockholder. 102
Depending on each case, the exempting provision of Sec. 83(b) of the 1939 Code may not
be applicable if the redeemed shares were issued with bona fide business
purpose, 103 which is judged after each and every step of the transaction have been
considered and the whole transaction does not amount to a tax evasion scheme.
ANSCOR invoked two reasons to justify the redemptions (1) the alleged
filipinization program and (2) the reduction of foreign exchange remittances in case
cash dividends are declared. The Court is not concerned with the wisdom of these
purposes but on their relevance to the whole transaction which can be inferred from the
outcome thereof. Again, it is the net effect rather than the motives and plans of the
taxpayer or his corporation104 that is the fundamental guide in administering Sec. 83(b).
This tax provision is aimed at the result. 105 It also applies even if at the time of the
issuance of the stock dividend, there was no intention to redeem it as a means of
distributing profit or avoiding tax on dividends. 106 The existence of legitimate business
purposes in support of the redemption of stock dividends is immaterial in income
taxation. It has no relevance in determining dividend equivalence. 107 Such purposes
may be material only upon the issuance of the stock dividends. The test of taxability
under the exempting clause, when it provides such time and manner as would make the
redemption essentially equivalent to the distribution of a taxable dividend, is whether
the redemption resulted into a flow of wealth. If no wealth is realized from the
redemption, there may not be a dividend equivalence treatment. In the metaphor
of Eisner v. Macomber, income is not deemed realize until the fruit has fallen or been
plucked from the tree.
The three elements in the imposition of income tax are: (1) there must be gain or and
profit, (2) that the gain or profit is realized or received, actually or constructively, 108 and
(3) it is not exempted by law or treaty from income tax. Any business purpose as to why
or how the income was earned by the taxpayer is not a requirement. Income tax is
assessed on income received from any property, activity or service that produces the
income because the Tax Code stands as an indifferent neutral party on the matter of where
income comes from. 109
As stated above, the test of taxability under the exempting clause of Section 83(b) is,
whether income was realized through the redemption of stock dividends. The redemption
converts into money the stock dividends which become a realized profit or gain and

consequently, the stockholders separate property. 110 Profits derived from the capital
invested cannot escape income tax. As realized income, the proceeds of the redeemed
stock dividends can be reached by income taxation regardless of the existence of any
business purpose for the redemption. Otherwise, to rule that the said proceeds are exempt
from income tax when the redemption is supported by legitimate business reasons would
defeat the very purpose of imposing tax on income. Such argument would open the door
for income earners not to pay tax so long as the person from whom the income was
derived has legitimate business reasons. In other words, the payment of tax under the
exempting clause of Section 83(b) would be made to depend not on the income of the
taxpayer, but on the business purposes of a third party (the corporation herein) from
whom the income was earned. This is absurd, illogical and impractical considering that
the Bureau of Internal Revenue (BIR) would be pestered with instances in determining
the legitimacy of business reasons that every income earner may interposed. It is not
administratively feasible and cannot therefore be allowed.
The ruling in the American cases cited and relied upon by ANSCOR that the redeemed
shares are the equivalent of dividend only if the shares were not issued for genuine
business purposes, 111 or the redeemed shares have been issued by a corporation bona
fide 112 bears no relevance in determining the non-taxability of the proceeds of
redemption ANSCOR, relying heavily and applying said cases, argued that so long as the
redemption is supported by valid corporate purposes the proceeds are not subject to
tax. 113 The adoption by the courts below 114 of such argument is misleading if not
misplaced. A review of the cited American cases shows that the presence or absence of
genuine business purposes may be material with respect to the issuance or declaration
of stock dividends but not on its subsequent redemption. The issuance and the redemption
of stocks are two different transactions. Although the existence of legitimate corporate
purposes may justify a corporations acquisition of its own shares under Section 41 of the
Corporation Code, 115 such purposes cannot excuse the stockholder from the effects of
taxation arising from the redemption. If the issuance of stock dividends is part of a tax
evasion plan and thus, without legitimate business reasons, the redemption becomes
suspicious which exempting clause. The substance of the whole transaction, not its form,
usually controls the tax consequences.116
The two purposes invoked by ANSCOR, under the facts of this case are no excuse for its
tax liability. First, the alleged filipinization plan cannot be considered legitimate as it
was not implemented until the BIR started making assessments on the proceeds of the
redemption. Such corporate plan was not stated in nor supported by any Board Resolution
but a mere afterthought interposed by the counsel of ANSCOR. Being a separate entity,
the corporation can act only through its Board of Directors. 117 The Board Resolutions
authorizing the redemptions state only one purpose reduction of foreign exchange

remittances in case cash dividends are declared. Not even this purpose can be given
credence. Records show that despite the existence of enormous corporate profits no cash
dividend was ever declared by ANSCOR from 1945 until the BIR started making
assessments in the early 1970s. Although a corporation under certain exceptions, has the
prerogative when to issue dividends, yet when no cash dividends was issued for about
three decades, this circumstance negates the legitimacy of ANSCORs alleged purposes.
Moreover, to issue stock dividends is to increase the shareholdings of ANSCORs foreign
stockholders contrary to its filipinization plan. This would also increase rather than
reduce their need for foreign exchange remittances in case of cash dividend declaration,
considering that ANSCOR is a family corporation where the majority shares at the time
of redemptions were held by Don Andres foreign heirs.
Secondly, assuming arguendo, that those business purposes are legitimate, the same
cannot be a valid excuse for the imposition of tax. Otherwise, the taxpayers liability to
pay income tax would be made to depend upon a third person who did not earn the
income being taxed. Furthermore, even if the said purposes support the redemption and
justify the issuance of stock dividends, the same has no bearing whatsoever on the
imposition of the tax herein assessed because the proceeds of the redemption are deemed
taxable dividends since it was shown that income was generated therefrom.
Thirdly, ANSCOR argued that to treat as taxable dividend the proceeds of the redeemed
stock dividends would be to impose on such stock an undisclosed lien and would be
extremely unfair to intervening purchase, i.e. those who buys the stock dividends after
their issuance. 118 Such argument, however, bears no relevance in this case as no
intervening buyer is involved. And even if there is an intervening buyer, it is necessary to
look into the factual milieu of the case if income was realized from the transaction.
Again, we reiterate that the dividend equivalence test depends on such time and manner
of the transaction and its net effect. The undisclosed lien119 may be unfair to a
subsequent stock buyer who has no capital interest in the company. But the unfairness
may not be true to an original subscriber like Don Andres, who holds stock dividends as
gains from his investments. The subsequent buyer who buys stock dividends is investing
capital. It just so happen that what he bought is stock dividends. The effect of its (stock
dividends) redemption from that subsequent buyer is merely to return his capital
subscription, which is income if redeemed from the original subscriber.
After considering the manner and the circumstances by which the issuance and
redemption of stock dividends were made, there is no other conclusion but that the
proceeds thereof are essentially considered equivalent to a distribution of taxable
dividends. As taxable dividend under Section 83(b), it is part of the entire income
subject to tax under Section 22 in relation to Section 21 120 of the 1939 Code. Moreover,

under Section 29(a) of said Code, dividends are included in gross income. As income, it
is subject to income tax which is required to be withheld at source. The 1997 Tax Code
may have altered the situation but it does not change this disposition.
EXCHANGE OF COMMON WITH PREFERRED SHARES 121
Exchange is an act of taking or giving one thing for another involving 122 reciprocal
transfer 123 and is generally considered as a taxable transaction. The exchange of
common stocks with preferred stocks, or preferred for common or a combination of either
for both, may not produce a recognized gain or loss, so long as the provisions of Section
83(b) is not applicable. This is true in a trade between two (2) persons as well as a trade
between a stockholder and a corporation. In general, this trade must be parts of merger,
transfer to controlled corporation, corporate acquisitions or corporate reorganizations. No
taxable gain or loss may be recognized on exchange of property, stock or securities
related to reorganizations. 124
Both the Tax Court and the Court of Appeals found that ANSCOR reclassified its shares
into common and preferred, and that parts of the common shares of the Don Andres estate
and all of Doa Carmens shares were exchanged for the whole 150.000 preferred shares.
Thereafter, both the Don Andres estate and Doa Carmen remained as corporate
subscribers except that their subscriptions now include preferred shares. There was no
change in their proportional interest after the exchange. There was no cash flow. Both
stocks had the same par value. Under the facts herein, any difference in their market
value would be immaterial at the time of exchange because no income is yet realized it
was a mere corporate paper transaction. It would have been different, if the exchange
transaction resulted into a flow of wealth, in which case income tax may be imposed. 125
Reclassification of shares does not always bring any substantial alteration in the
subscribers proportional interest. But the exchange is different there would be a
shifting of the balance of stock features, like priority in dividend declarations or absence
of voting rights. Yet neither the reclassification nor exchange per se, yields realize
income for tax purposes. A common stock represents the residual ownership interest in
the corporation. It is a basic class of stock ordinarily and usually issued without
extraordinary rights or privileges and entitles the shareholder to a pro rata division of
profits. 126 Preferred stocks are those which entitle the shareholder to some priority on
dividends and asset distribution. 127
Both shares are part of the corporations capital stock. Both stockholders are no different
from ordinary investors who take on the same investment risks. Preferred and common
shareholders participate in the same venture, willing to share in the profits and losses of
the enterprise. 128 Moreover, under the doctrine of equality of shares all stocks issued

by the corporation are presumed equal with the same privileges and liabilities, provided
that the Articles of Incorporation is silent on such differences. 129
In this case, the exchange of shares, without more, produces no realized income to the
subscriber. There is only a modification of the subscribers rights and privileges which
is not a flow of wealth for tax purposes. The issue of taxable dividend may arise only
once a subscriber disposes of his entire interest and not when there is still maintenance of
proprietary interest. 130
WHEREFORE, premises considered, the decision of the Court of Appeals
is MODIFIED in that ANSCORs redemption of 82,752.5 stock dividends is herein
considered as essentially equivalent to a distribution of taxable dividends for which it
is LIABLE for the withholding tax-at-source. The decision is AFFIRMED in all other
respects.
SO ORDERED.