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QUESTION 69 MCQ TAX BAR EXAM 2012 - AMENDED ANSWER

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taxconsultantdavao


Reclusion Perpetua
Where the real property tax assessment is erroneous, the remedy of
the property owner is:
a)
To file a claim for refund in the Court of Tax Appeals if he
has paid the tax, within thirty (30) days from date of
payment;

b)
To file an appeal with the Provincial Board of Assessment
Appeals within thirty (30) days from receipt of the
assessment;

c)
To file an appeal with the Provincial Board of Assessment
Appeals within sixty (60) days from receipt of the
assessment;

d)
To file an appeal with the Provincial Board of Assessment
Appeals within sixty (60) days from receipt of the
assessment and paying the assessed tax under protest.



Last edited by taxconsultantdavao on Mon Nov 12, 2012 9:39 am; edited 2 times in total

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taxconsultantdavao


Reclusion Perpetua
nagiging tricky itong question na ito dahil:

1. sa kadami dami ng ginamemorize na law or statutes, minsan kasi ma mix mo ang law or procedure sa taxation (NIRC) at sa real property taxation sa local government code (RA 7160).

ganito kasi ang rule pag sa taxation (NIRC) iyong about income tax, VAT, percentage and other internal revenue taxes.

ASSESSMENT (FAN)

then

ADMINISTRATIVE PROTEST
WITHIN 30 DAYS FROM RECEIPT OF NOTICE OF ASSESSMET)

* if there is only one issue involved
and it is disputed, the taxpayer is not required to pay the deficiency tax pending the appeal

* if there are several issues involved in assessment, the taxpayer is required to pay the deficiency tax ATTRIBUTABLE TO UNDISPUTED ISSUES.



[b]
NO ACTION shall be taken on the taxpayer's disputed issues until the taxpayer has paid the deficiency tax attributable to undisputed issues.



Last edited by taxconsultantdavao on Sat Nov 10, 2012 9:15 am; edited 1 time in total

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taxconsultantdavao


Reclusion Perpetua
if me several issues, some disputed and some are undisputed, REQUIRED KA MAGBAYAD NG DEFICIENCY TAX S unDISPUTED ISSUES BEFORE THE BIR shall take AN ACTION ON YOUR PROTEST sa disputed issues. kasi invalid protest iyan.







Last edited by taxconsultantdavao on Sat Nov 10, 2012 8:10 am; edited 1 time in total

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taxconsultantdavao


Reclusion Perpetua
pero sa real property taxation , PARANG walang ganyan na precondition bago merong valid protest. PARANG ganito lang ang sinabi ng RA 7160.


Section 231. Effect of Appeal on the Payment of Real Property Tax. - Appeal on assessments of real property made under the provisions of this Code shall, in no case, suspend the collection of the corresponding realty taxes on the property involved as assessed by the provincial or city assessor, without prejudice to subsequent adjustment depending upon the final outcome of the appeal.



** PARANG walang prior payment ng deficiency taxes as condition sine-quanon para makafile ng protest s real property taxation. at least sa pagka intindi ko lang sa law. kasi ang sabi lang, kahit nag appeal ka, ang pag collect daw sa na assess na tax, hindi masuspend. me execution pending appeal siya. pero if hindi ka nakabayad, hindi ma appektohan ang appeal mo (unlike s taxation na ma appektuhan ang appeal mo pag me undisputed issues)


PERO MALI HO ITONG IDEA NA ITO. KASI UNDER SECTION 252 OF THE LOCAL GOVERNMENT CODE

[u]

SEC. 252. Payment Under Protest. - (a) No protest shall be entertained [u]unless the taxpayer first pays the tax
. There shall be annotated on the tax receipts the words "paid under protest". The protest in writing must be filed within thirty (30) days from payment of the tax to the provincial, city treasurer or municipal treasurer, in the case of a municipality within Metropolitan Manila Area, who shall decide the protest within sixty (60) days from receipt.

(b) The tax or a portion thereof paid under protest, shall be held in trust by the treasurer concerned.

(c) In the event that the protest is finally decided in favor of the taxpayer, the amount or portion of the tax protested shall be refunded to the protestant, or applied as tax credit against his existing or future tax liability.

(d) In the event that the protest is denied or upon the lapse of the sixty day period prescribed in subparagraph (a), the taxpayer may avail of the remedies as provided for in Chapter 3, Title II, Book II of this Code.[u]



Last edited by taxconsultantdavao on Mon Nov 12, 2012 7:58 am; edited 3 times in total

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taxconsultantdavao


Reclusion Perpetua

so dapat mACLEAR ITO. ANG GENERAL RULE UNDER PROTEST IS THIS:


sa tax- NIRC- me precondition na payment sa undisputed issues bago me valid protest

sa real property tax- ME precondition- DIN NA PRIOR PAYMENT BEFORE KA MAG APPEAL UNDER SECTION 252 OF THE LGC.
[u]

actually me supreme court decided case ito:

NATIONAL POWER CORPORATION,
Petitioner,
- versus -
ROVINCE OF QUEZON and MUNICIPALITY OF PAGBILAO,
Respondent.

G.R. No. 171586


January 25, 2010



Last edited by taxconsultantdavao on Mon Nov 12, 2012 7:56 am; edited 3 times in total

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taxconsultantdavao


Reclusion Perpetua
ITO IYONG RELEVANT PROVISIONS NG RA 7160 REGARDING APPEALS SA ASSESSMENT NG REAL PROPERTY TAX.


CHAPTER III
Assessment Appeals

Section 226. Local Board of Assessment Appeals. - Any owner or person having legal interest in the property who is not satisfied with the action of the provincial, city or municipal assessor in the assessment of his property may, within sixty (60) days from the date of receipt of the written notice of assessment, appeal to the Board of Assessment Appeals of the provincial or city by filing a petition under oath in the form prescribed for the purpose, together with copies of the tax declarations and such affidavits or documents submitted in support of the appeal.

Section 227. Organization, Powers, Duties, and Functions of the Local Board of Assessment Appeals. -

(a) The Board of Assessment Appeals of the province or city shall be composed of the Registrar of Deeds, as Chairman, the provincial or city prosecutor and the provincial, or city engineer as members, who shall serve as such in an ex officio capacity without additional compensation.

(b) The chairman of the Board shall have the power to designate any employee of the province or city to serve as secretary to the Board also without additional compensation.

(c) The chairman and members of the Board of Assessment Appeals of the province or city shall assume their respective positions without need of further appointment or special designations immediately upon effectivity of this Code. They shall take oath or affirmation of office in the prescribed form.

(d) In provinces and cities without a provincial or city engineer, the district engineer shall serve as member of the Board. In the absence of the Registrar of Deeds, or the provincial or city prosecutor, or the provincial or city engineer, or the district engineer, the persons performing their duties, whether in an acting capacity or as a duly designated officer-in-charge, shall automatically become the chairman or member, respectively, of the said Board, as the case may be.



Section 229. Action by the Local Board of Assessment Appeals. -

(a) The Board shall decide the appeal within one hundred twenty (120) days from the date of receipt of such appeal. The Board, after hearing, shall render its decision based on substantial evidence or such relevant evidence on record as a reasonable mind might accept as adequate to support the conclusion.

(b) In the exercise of its appellate jurisdiction, the Board shall have the power to summon witnesses, administer oaths, conduct ocular inspection, take depositions, and issue subpoena and subpoena duces tecum. The proceedings of the Board shall be conducted solely for the purpose of ascertaining the facts without necessarily adhering to technical rules applicable in judicial proceedings.

(c) The secretary of the Board shall furnish the owner of the property or the person having legal interest therein and the provincial or city assessor with a copy of the decision of the Board. In case the provincial or city assessor concurs in the revision or the assessment, it shall be his duty to notify the owner of the property or the person having legal interest therein of such fact using the form prescribed for the purpose. The owner of the property or the person having legal interest therein or the assessor who is not satisfied with the decision of the Board, may, within thirty (30) days after receipt of the decision of said Board, appeal to the Central Board of Assessment Appeals, as herein provided. The decision of the Central Board shall be final and executory (UNDER SEC REVISED ADMINISTRATIVE CIRCULAR 1-95, FINAL ORDERS OF CENTRAL BOARD OF ASSESSMENT APPEALS AND OTHER QUASI-JUDICIAL BODIES (except those orders issued under the labor code) may be appealed to the COURT OF APPEALS. ***NOT SURE ABOUT THIS.

Section 230. Central Board of Assessment Appeals. - The Central Board of Assessment Appeals shall be composed of a chairman, and two (2) members to be appointed by the President, who shall serve for a term of seven (7) years, without reappointment. Of those first appointed, the chairman shall hold office for seven (7) years, one member for five (5) years, and the other member for three (3) years. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any member be appointed or designated in a temporary or acting capacity. The chairman and the members of the Board shall be Filipino citizens, at least forty (40) years old at the time of their appointment, and members of the Bar or Certified Public Accountants for at least ten (10) years immediately preceding their appointment. The chairman of the Board of Assessment Appeals shall have the salary grade equivalent to the rank of Director III under the Salary Standardization Law exclusive of allowances and other emoluments. The members of the Board shall have the salary grade equivalent to the rank of Director II under the Salary Standardization Law exclusive of allowances and other emoluments. The Board shall have appellate jurisdiction over all assessment cases decided by the Local Board of Assessment Appeals.

There shall be Hearing Officers to be appointed by the Central Board of Assessment Appeals pursuant to civil service laws, rules and regulations, one each for Luzon, Visayas and Mindanao, who shall hold office in Manila, Cebu City and Cagayan de Oro City, respectively, and who shall serve for a term of six (6) years, without reappointment until their successors have been appointed and qualified. The Hearing Officers shall have the same qualifications as that of the Judges of the Municipal Trial Courts.

The Central Board Assessment Appeals, in the performance of its powers and duties, may establish and organize staffs, offices, units, prescribe the titles, functions and duties of their members and adopt its own rules and regulations.

Unless otherwise provided by law, the annual appropriations for the Central Board of Assessment Appeals shall be included in the budget of the Department of Finance in the corresponding General Appropriations Act.

Section 231. Effect of Appeal on the Payment of Real Property Tax. - Appeal on assessments of real property made under the provisions of this Code shall, in no case, suspend the collection of the corresponding realty taxes on the property involved as assessed by the provincial or city assessor, without prejudice to subsequent adjustment depending upon the final outcome of the appeal.

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taxconsultantdavao


Reclusion Perpetua
SEC. 252. Payment Under Protest. - (a) No protest shall be entertained unless the taxpayer first pays the tax. There shall be annotated on the tax receipts the words "paid under protest". The protest in writing must be filed within thirty (30) days from payment of the tax to the provincial, city treasurer or municipal treasurer, in the case of a municipality within Metropolitan Manila Area, who shall decide the protest within sixty (60) days from receipt.

(b) The tax or a portion thereof paid under protest, shall be held in trust by the treasurer concerned.

(c) In the event that the protest is finally decided in favor of the taxpayer, the amount or portion of the tax protested shall be refunded to the protestant, or applied as tax credit against his existing or future tax liability.

(d) In the event that the protest is denied or upon the lapse of the sixty day period prescribed in subparagraph (a), the taxpayer may avail of the remedies as provided for in Chapter 3, Title II, Book II of this Code.



Last edited by taxconsultantdavao on Mon Nov 12, 2012 7:56 am; edited 2 times in total

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taxconsultantdavao


Reclusion Perpetua
XX
BAR QUESTION


Where the real property tax assessment is erroneous, the remedy of
the property owner is:
a)
To file a claim for refund in the Court of Tax Appeals if he
has paid the tax, within thirty (30) days from date of
payment;

b)
To file an appeal with the Provincial Board of Assessment
Appeals within thirty (30) days from receipt of the
assessment;


c.)To file an appeal with the Provincial Board of Assessment
Appeals (CITY b0ARD OF ASSESSMENT APPEALS IF CITY) within sixty (60) days from receipt of the
assessmenT (WRONG ANSWER)

d)
To file an appeal with the Provincial Board of Assessment
Appeals within sixty (60) days from receipt of the
assessment and paying the assessed tax under protest. [u]- ITO ANG TAMANG SAGOT BASED SA SECTION 252 NG LGC[u]
dahil ang issue dito is the correctness of the assessment. kaya you comply with Section 252 (prior payment )

[u]



Last edited by taxconsultantdavao on Mon Nov 12, 2012 8:02 am; edited 4 times in total

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taxconsultantdavao


Reclusion Perpetua
xx



Last edited by taxconsultantdavao on Mon Nov 12, 2012 7:57 am; edited 1 time in total

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taxconsultantdavao


Reclusion Perpetua
The LBAA dismissed Napocor’s petition for exemption for its failure to comply with Section 252 of the LGC[30] requiring payment of the assailed tax before any protest can be made. Although the CBAA ultimately dismissed Napocor’s appeal for failure to meet the requirements for tax exemption, it agreed with Napocor’s position that “the protest contemplated in Section 252 (a) is applicable only when the taxpayer is questioning the reasonableness or excessiveness of an assessment. It presupposes that the taxpayer is subject to the tax but is disputing the correctness of the amount assessed. It does not apply where, as in this case, the legality of the assessment is put in issue on account of the taxpayer’s claim that it is exempt from tax.” The CTA en banc agreed with the CBAA’s discussion, relying mainly on the cases of Ty v. Trampe[31] and Olivarez v. Marquez.[32]



We disagree. The cases of Ty and Olivarez must be placed in their proper perspective.



The petitioner in Ty v. Trampe questioned before the trial court the increased real estate taxes imposed by and being collected in Pasig City effective from the year 1994, premised on the legal question of whether or not Presidential Decree No. 921 (PD 921) was repealed by the LGC. PD 921 required that the schedule of values of real properties in the Metropolitan Manila area shall be prepared jointly by the city assessors in the districts created therein; while Section 212 of the LGC stated that the schedule shall be prepared by the provincial, city or municipal assessors of the municipalities within the Metropolitan Manila Area for the different classes of real property situated in their respective local government units for enactment by ordinance of the Sanggunian concerned. The private respondents assailed Ty’s act of filing a prohibition petition before the trial court contending that Ty should have availed first the administrative remedies provided in the LGC, particularly Sections 252 (on payment under protest before the local treasurer) and 226 (on appeals to the LBAA).



The Court, through former Chief Justice Artemio Panganiban, declared that Ty correctly filed a petition for prohibition before the trial court against the assailed act of the city assessor and treasurer. The administrative protest proceedings provided in Section 252 and 226 will not apply. The protest contemplated under Section 252 is required where there is a question as to the reasonableness or correctness of the amount assessed. Hence, if a taxpayer disputes the reasonableness of an increase in a real property tax assessment, he is required to "first pay the tax" under protest. Otherwise, the city or municipal treasurer will not act on his protest. Ty however was questioning the very authority and power of the assessor, acting solely and independently, to impose the assessment and of the treasurer to collect the tax. These were not questions merely of amounts of the increase in the tax but attacks on the very validity of any increase. Moreover, Ty was raising a legal question that is properly cognizable by the trial court; no issues of fact were involved. In enumerating the power of the LBAA, Section 229 declares that “the proceedings of the Board shall be conducted solely for the purpose of ascertaining the facts x x x.” Appeals to the LBAA (under Section 226) are therefore fruitful only where questions of fact are involved.



Olivarez v. Marquez, on the other hand, involved a petition for certiorari, mandamus, and prohibition questioning the assessment and levy made by the City of Parañaque. Olivarez was seeking the annulment of his realty tax delinquency assessment. Marquez assailed Olivarez’ failure to first exhaust administrative remedies, particularly the requirement of payment under protest. Olivarez replied that his petition was filed to question the assessor’s authority to assess and collect realty taxes and therefore, as held in Ty v. Trampe, the exhaustion of administrative remedies was not required. The Court however did not agree with Olivarez’s argument. It found that there was nothing in his petition that supported his claim regarding the assessor’s alleged lack of authority. What Olivarez raised were the following grounds: “(1) some of the taxes being collected have already prescribed and may no longer be collected as provided in Section 194 of the Local Government Code of 1991; (2) some properties have been doubly taxed/assessed; (3) some properties being taxed are no longer existent; (4) some properties are exempt from taxation as they are being used exclusively for educational purposes; and (5) some errors are made in the assessment and collection of taxes due on petitioners’ properties, and that respondents committed grave abuse of discretion in making the improper, excessive and unlawful the collection of taxes against the petitioner.” The Olivarez petition filed before the trial court primarily involved the correctness of the assessments, which is a question of fact that is not allowed in a petition for certiorari, prohibition, and mandamus. Hence, we declared that the petition should have been brought, at the very first instance, to the LBAA, not the trial court.



Like Olivarez, Napocor, by claiming exemption from realty taxation, is simply raising a question of the correctness of the assessment. A claim for tax exemption, whether full or partial, does not question the authority of local assessor to assess real property tax. This may be inferred from Section 206 which states that:



SEC. 206. Proof of Exemption of Real Property from Taxation. - Every person by or for whom real property is declared, who shall claim tax exemption for such property under this Title shall file with the provincial, city or municipal assessor within thirty (30) days from the date of the declaration of real property sufficient documentary evidence in support of such claim including corporate charters, title of ownership, articles of incorporation, bylaws, contracts, affidavits, certifications and mortgage deeds, and similar documents. If the required evidence is not submitted within the period herein prescribed, the property shall be listed as taxable in the assessment roll. However, if the property shall be proven to be tax exempt, the same shall be dropped from the assessment roll. [Emphasis provided]



By providing that real property not declared and proved as tax-exempt shall be included in the assessment roll, the above-quoted provision implies that the local assessor has the authority to assess the property for realty taxes, and any subsequent claim for exemption shall be allowed only when sufficient proof has been adduced supporting the claim. Since Napocor was simply questioning the correctness of the assessment, it should have first complied with Section 252, particularly the requirement of payment under protest. Napocor’s failure to prove that this requirement has been complied with thus renders its administrative protest under Section 226 of the LGC without any effect. No protest shall be entertained unless the taxpayer first pays the tax.



It was an ill-advised move for Napocor to directly file an appeal with the LBAA under Section 226 without first paying the tax as required under Section 252. Sections 252 and 226 provide successive administrative remedies to a taxpayer who questions the correctness of an assessment. Section 226, in declaring that “any owner or person having legal interest in the property who is not satisfied with the action of the provincial, city, or municipal assessor in the assessment of his property may x x x appeal to the Board of Assessment Appeals x x x,” should be read in conjunction with Section 252 (d), which states that “in the event that the protest is denied x x x, the taxpayer may avail of the remedies as provided for in Chapter 3, Title II, Book II of the LGC [Chapter 3 refers to Assessment Appeals, which includes Sections 226 to 231]. The “action” referred to in Section 226 (in relation to a protest of real property tax assessment) thus refers to the local assessor’s act of denying the protest filed pursuant to Section 252. Without the action of the local assessor, the appellate authority of the LBAA cannot be invoked. Napocor’s action before the LBAA was thus prematurely filed.

[u]

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taxconsultantdavao


Reclusion Perpetua

pero pag sa NIRC- or national tax ang pinag uusapan, me point of issue dito kasi:

1. if me several issues, me iba disputed, ang iba hindi disputed, - me valid protest lang if ang sa undisputed issues, me prior payment.
if me prior payments sa undisputed issues, valid ang protest mo kahit di nabayaran iyong under sa disputed issues mo.

2. if isa lang ang disputed issue at nagprotest ka, or if maraming issues pero lahat disputed- walang required prior payment dito.

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