lca lines | volume iii, issue no. 2

8/12/2019 LCA LINES | Volume III, Issue No. 2

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BIR ISSUANCES FOR THE MONTH OFFEBRUARY

FEBRUARY 2010VOLUME III, ISSUE No. 2

L C AL C AL C A

LINESLINESLINES

Inside this issue:

BIR issuancesfor the monthof February

2

ExpandedSenior Citi-zens Act

7

Anti-Photoand Video Vo-

yeurism Act of2009

12

Free LegalAssistance Actof 2010

13

SEC CIRCU-LAR NO. 680 Series of 2010

14

Jurisprudence 14

JLs Corner 21

determining its net in-

come, the individual part-ner can still claim deduc-tions incurred or paid byhim that contributed to theearning of the income tax-able to him. The followingrules shall govern theclaim of the partners ofdeductions from theirshare in the net income ofthe partnership:

a. If the GPP availed of theitemized deduction in com-

puting its net income, thepartners may still claimitemized deductions fromsaid share, provided,that, in claiming itemizeddeductions, the partneris precluded from claim-ing the same expensesalready claimed by theGPP. In fine, if the GPPclaimed itemized deduc-tions the partners compris-ing it can only claim item-ized deductions which are

in the nature of ordinaryand necessary expensesfor the practice of pro-fession which were notclaimed by the GPP incomputing its net incomeor distributable net in-come during the year.

Hence, if the GPP availedof itemized deductions, the

partners are not allowed to

claim the OSD from theirshare in the net incomebecause the OSD is aproxy for all the items ofdeductions allowed in ar-riving at taxable income.

b. If the GPP avails of OSDin computing its net in-come, the partners com-prising it can no longerclaim further deductionfrom their share in thesaid net income for the

following reasons:

i. The partners distribu-tive share in the GPP istreated as his gross in-come not his grosssales/receipts and the40% OSD allowed toindividuals is specificallymandated to be deductednot from his gross in-come but from his grosssales/ receipts; and

ii. The OSD being inlieu of the itemizeddeductions allowed incomputing taxable in-come as defined underSection 31 of the NIRC, itwill answer for both theitems of deduction al-lowed to the GPP and itspartners.

REVENUE REGULATIONSNO. 2-2010

REVENUE REGULATIONSNO. 2-2010 issued on Feb-ruary 24, 2010 amendsSections 6 and 7 of Reve-nue Regulations No. 16-2008 with respect to thedetermination of the Op-tional Standard Deduction(OSD) of General Profes-sional Partnerships (GPPs)and the partners thereof, as

well as the manner andperiod for making theelection to claim OSD inthe Income Tax Returns.The GPP is not a taxa-

ble entity for Income Taxpurposes since it is onlyacting as a pass - throughentity where its income isultimately taxed to the part-ners comprising it.

In computing taxable in-come defined under Section

31 of the National InternalRevenue Code (NIRC), allexpenses which are ordi-nary and necessary, in-curred or paid for the prac-tice of profession, are al-lowed as deductions. Sincethe taxable income is in thehands of the partner, as arule apart from the expens-es claimed by the GPP in


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c. Since one-layer ofIncome Tax is imposedon the income of theGPP and the individualpartners where the lawhad placed the statutoryincidence of the tax inthe hands of the latter,the type of deductionchosen by the GPP mustbe the same type of de-duction that can beavailed of by the part-ners. Accordingly, if theGPP claims itemized de-ductions, all items of de-

duction allowed underSection 34 of the NIRCcan be claimed both atthe level of the GPPand at the level of thepartner in order to de-termine the taxableincome. On the otherhand, should the GPPopt to claim the OSD,the individual partnersare deemed to haveavailed also of the OSDbecause the OSD is in

lieu of the itemized de-ductions that can beclaimed in computingtaxable income.

d. If the partner alsoderives other grossincome from trade,business or practice ofprofession apart anddistinct from his sharein the net income ofthe GPP, the deductionthat he can claim from

his other gross incomewould follow the samededuction availed of fromhis partnership incomeas explained in the fore-going rules.

Provided, however, thatif the GPP opts for theOSD, the individual part-ner may still claim 40%

BIR ISSUANCES

Page 2 L C A LINES

of its gross income fromtrade, business or prac-tice of profession but notto include his share fromthe net income of theGPP.

A taxpayer who electedto avail of the OSD notexceeding 40% of grosssales or gross receipts, incase of an individual taxa-ble under Sections 24(A)and 25(A)(1) of the NIRC,or 40% of gross income,in case of a corporation

subject to tax under Sec-tion 27(A) or 28(A)(1) ofthe NIRC shall signify inhis/its return such inten-tion, otherwise he/it shallbe considered as havingavailed himself of theitemized deductions al-lowed under Section 34of the NIRC. Once theelection to avail of theOSD or itemized deduc-tion is signified in thereturn, it shall be irrev-

ocable for the taxableyear for which the returnis made.

The election to claim ei-ther the OSD or the item-ized deduction for thetaxable year must be sig-nified by checking theappropriate box in theIncome Tax Return filedfor the first quarter of thetaxable year adopted bythe taxpayer. Once the

election is made, thesame type of deductionmust be consistentlyapplied for all the suc-ceeding quarterly re-turns and in the finalIncome Tax Return forthe taxable year. Anytaxpayer who is re-quired but fails to filethe quarterly Income

Tax Return for thefirst quarter shall beconsidered as havingavailed of the itemizeddeductions option for thetaxable year.

An individual taxpayerwho is entitled to andclaimed the OSD shallnot be required to submitwith his tax returnsuch financial state-ments otherwise re-quired under the NIRC.Provided, that, except

when the Commissionerotherwise permits, thesaid individual shall keepsuch records pertainingto his gross sales orgross receipts. In thecase of a corporation,however, said corpora-tion is still required tosubmit its financial state-ments when it files itsannual Income Tax Re-turn and to keep suchrecords pertaining to its

gross income as hereindefined.

REVENUE REGULA-TIONS NO. 3-2010

Issued on February 26,2010 provides the ra-tionale and guidelinesfor the submission ofthe Statement of Man-agement Responsibilitythat shall accompanythe financial statementsthat shall be submittedwith the annual IncomeTax return.

All taxpayers requiredto file Annual Income

Tax Return under theNational Internal Reve-nue Code, as amend-ed, shall be requiredto submit a Statementof Managements Re-sponsibility, as follows:

STATEMENT OF MAN-AGEMENTS RESPONSI-

BIILITY FORANNUAL INCOME TAX

RETURN

The Management of(name of taxpayer) is

responsible for all in-formation and represen-tations contained inthe Annual Income TaxReturn for the yearended (date). Manage-ment is likewise respon-sible for all informationand representations con-tained in the financialstatements accompany-ing the (Annual IncomeTax Return or AnnualInformation Return) cov-

ering the same reportingperiod. Furthermore, theManagement is responsi-ble for all informationand representations con-tained in all the other taxreturns filed for the re-porting period, including,but not limited, to thevalue added tax and/orpercentage tax returns,withholding tax returns,documentary stamp taxreturns, and any and all

other tax returns.In this regard, theManagement affirmsthat the attached au-dited financial state-ments for the yearended (date) and theaccompanying AnnualIncome Tax Return arein accordance with the


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____________________(Name of the IndividualTaxpayer/President/Managing Partner)

Signature: ____________________(Name of the Chief Exec-utive Officer or its equiv-alent)

Signature: ____________________(Name of the Chief Fi-nancial Officer or itsequivalent)

In the case of a for-eign corporation withbranch office in thePhilippines, the aboveStatement shall besigned by its local man-ager who is in charge ofits operations.

REVENUE REGULA-

TIONS NO. 4-2010

Issued on February 26,2010 amends RevenueRegulations No. 11-2006relative to the accredita-tion of tax practitioners/agents as a prerequisiteto their practice or repre-sentation before the Bu-reau of Internal Reve-nue.

The Revenue NationalAccreditation Board(RNAB) shall haveoriginal and exclusiveauthority to acceptapplications for accredi-tation of tax agentsand practitioners (TAPs)belonging to GeneralProfessional Partner-ships (GPPs) or incor-

porated entities en-gaged in accounting andtax consultancy, provid-ed that the number ofpracticing TAPs belongingto said GPP or incorpo-rated entity shall ex-ceed ten (10). The Rev-enue Regional Accredita-tion Board (RRAB), onthe other hand, shallhave original and exclu-sive authority to acceptapplications for accredi-tation of individual TAPsand those belonging to

GPPs or incorporatedentities engaged in ac-counting and tax con-sultancy, provided thatthe number of practic-ing TAPs belonging tosuch GPP or incorporatedentity does not exceedten (10).

It shall be the duty ofthe AccreditationBoards to act upon allapplications to practice

before the Bureau of In-ternal Revenue, to insti-tute and provide for theconduct of accreditation,suspension or dis-accreditation proceedingsand to perform such oth-er duties as are neces-sary or appropriate tocarry out their functionsas prescribed by the Sec-retary of Finance, provid-ed that any action ordecision of the RRAB

and RNAB shall befinal and appealableonly to the Commis-sioner.

Individual applicants,GPPs and partners ofGPPs who were alreadyaccredited with the Boardof Accountancy (BOA)and Security and Ex-

Page 3VOLUME III, ISSUE No. 2

BIR ISSUANCES

books and records of(name of taxpayer),complete and correct inall material respects.Management likewiseaffirms that:

(a)the Annual IncomeTax Return has beenprepared in accordancewith the provisions ofthe National InternalRevenue Code, asamended, and pertinenttax regulations andother issuances of the

Department of Financeand the Bureau of Inter-nal Revenue;

(b) Any disparity of fig-ures in the submittedreports arising from thepreparation of financialstatements pursuant tofinancial accountingstandards and thepreparation of the In-come Tax Return pursu-ant to tax accounting

rules has been reportedas reconciling items andmaintained in the com-panys books and rec-ords in accordancewith the requirementsof Revenue RegulationsNo. 8-2007 and otherrelevant issuances; (c)the (name of taxpayer)has filed all applicabletax returns, reports andstatements required tobe filed under Philip-

pine tax laws for thereporting period, andall taxes and otherimpositions shownthereon to be due andpayable have beenpaid for the reportingperiod, except thosecontested in good faith.

Signature:


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change Commission(SEC) shall similarly berequired to undergo thevarious processes foraccreditation under theseRegulations and shall nolonger be automaticallyaccredited and issued aBIR Certificate of Accred-itation. For IndividualTax Agents, as an addi-tional minimum qualifica-tion, applicants musthave completed the mini-mum number of hoursof continuing profes-

sional education (CPE)from BIR-accredited CPEproviders for each yearhe practices with theBIR.

The duly accomplishedaccreditation applicationform shall be submit-ted, together with alldocumentary require-ments, with the RRABor RNAB of the placewhere the individual

applicant or general pro-fessional partnership hashis/its principal residenceor place of business,whichever is applicable.Individual applicantsshall submit, togetherwith their duly accom-plished application forms,the following additionaldocuments:

a. Proof of special com-petence in tax matters or

tax practice, to wit:a.1. Certificate of Em-ployment, i.e. meaning-ful experience in taxrelated work;

a.2. Written certifica-tion of CPE units fromBIR-accredited CPEproviders, with com-

BIR ISSUANCES

Page 4 L C A LINES

plete details on thecourse, dates and num-ber of CPE hours takenby the TAP. For thispurpose, the BIR shallprescribe the guidelinesfor the accreditation ofand conduct of trainingby the CPE providers;

Pending the issuance ofthe guidelines by theBIR for the accredita-tion of CPE providers,the applicant shall onlycomply with the require-

ments prescribed in (a) to(c) and (d.1) of Section 5of RR No. 11-2006.

b. A written undertakingunder oath to preserveworking papers withinthe period prescribedunder Section 235 ofthe NIRC of 1997, asamended, and makingthem available to the Bu-reaus authorized repre-sentative/s when required

or directed to do so.For Partners, Directors,Officers or duly authorizedrepresentatives of GeneralProfessional Partnershipsduly registered with theSEC, in addition to thedocumentary require-ments prescribed, thefollowing additional re-quirements shall be sub-mitted:

a. Certification from theBOA if the said Partner,Director, Officer or dulyauthorized representativeis a CPA; and

b. A written undertakingunder oath by the manag-ing partner/director thatthe firm/entity shall fullycooperate with the Bu-

reau by preserving itsworking papers withinthe period prescribedunder Section 235 of theNIRC of 1997, as amend-ed, and making themavailable to the Bureausauthorized representa-tive/s when required ordirected to do so.

Each applicant shall paya non-refundable fee of P1,000.00 upon filing ofapplication for accredita-tion. If the applicant is a

general professionalpartnership, the fee shallbe paid for each partner/s and any other author-ized representative/sthereof. In the case ofincorporated entities en-gaged in the account-ing and tax consultan-cy services, the feeshall be paid by eachof the applicant officer/sor designated repre-sentative/s thereof.

All accredited TAPsshall submit to theRRAB/RNAB on or be-fore the last day ofpayment of annual regis-tration fee the followingdocuments:

a. A list of the engage-ments dealing with anyof the BIR Offices for theprior year; and

b. A list of the CPEhours earned by theaccredited tax agents/practitioners for theprevious year.

The RRAB shall processthe application/s andissue the certificate/sof accreditation of indi-viduals, GPPs and in-

corporated entities withTAPs of 10 or lesspersons, while theRNAB shall process theapplication/s and ap-prove the certificate/s ofaccreditation for individ-uals, GPPs and incorpo-rated entities with TAPsof 11 or more persons.In cases where the indi-viduals, GPPs and incor-porated entities had pre-viously accredited 10 orless TAPs and shall sub-sequently apply for ac-

creditation of additionalTAPs exceeding the 10person threshold, saidapplication shall be filedwith the RNAB, whichshall process the appli-cation/s and issue thecertification/s of accredi-tation.

The RRAB and RNABshall act upon all applica-tions for accreditation byverifying the qualifica-

tions of an applicant,and the completenessof the required docu-mentation. If an appli-cation is determined tobe complete, and theapplicant's qualificationsare found to be inconformity with theprovisions of Section 4of these Regulations,the application shall bestamped "RECEIVED"bearing the date the

completed applicationwas received by theRRAB/RNAB.

In all cases, the RRAB/RNAB shall have the ex-clusive authority to ap-prove/disapprove appli-cations for accreditationfalling within their re-spective jurisdiction,


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of the partnerships ac-creditation but only thatof the concerned part-ners accreditation. Thepartnership, however,must notify the RNAB,or the RRAB having

jurisdiction over thepartnership's principalplace of business, ofsuch occurrence andshall surrender to theRNAB/RRAB the con-cerned partner's Certifi-cate of Registration orIdentification Card for

cancellation.The following are addi-tional grounds for sus-pension, cancellation orrevocation of accredita-tion:

a. "Reckless conductwhich is a highly unrea-sonable omission or mis-representation involvingan extreme departurefrom the standards of

ordinary care that apractitioner should ob-serve under the cir-cumstances arisingfrom non-complianceby the taxpayer-clientwith existing provisionsof the Tax Code, itsrules and regulations,including financial ac-counting standards andtax accounting rules.

Reckless conduct onthe part of the tax

agent/practitioner shallbe presumed whenthere is substantial un-derdeclaration of client-taxpayers taxable sales,receipts or income, or asubstantial overstate-ment of its deductions asdefined under Section248 of the Tax Code, asamended, and such dis-

crepancy is discoveredby the Bureau in the con-duct of its enforcementactivities. A pattern ofconduct is a factor thatwill be taken into ac-count in determiningwhether a practitioneracted knowingly, reck-lessly, or through grossincompetence;

b. Failure to comply withthe completion of theCPE; and

c. Consistent failure toindicate the BIR ac-creditation number inthe documents filed withthe BIR.

A petition for Disaccredi-tation/Suspension of anAccredited Tax Agentmay be filed with theRRAB or RNAB having

jurisdiction over the resi-dence or principal placeof business of the ac-

credited tax agentagainst whom the Peti-tion is being filed. Peti-tions found to have beenfiled by fictitious personsor organizations, uponverification by the RRABor RNAB concerned, shallbe dismissed for lack offactual or legal bases.

The RRAB or RNABwith whom a Petitionfor Disaccreditation/

Suspension was filedshall conduct hearing(s)on such Petition, toallow both the Petition-er and the AccreditedTax Agent concerned topresent their side ofthe case. In the con-duct of hearings, aquorum is sufficient toconvene the RRAB or


BIR ISSUANCES

which shall be actedupon within 30 daysfrom receipt of the com-plete application.

Applicants whose appli-cations for accreditationhave been approved bythe RRAB/RNAB shall beissued a Certificate ofAccreditation signed bytheir respective Chair-man. Such Certificateshall be valid for aperiod of 3 years fromthe date of issue, un-

less sooner revoked forcause. For purposes ofeasy identification, theCommissioner of InternalRevenue shall issue anidentification card toeach accredited taxagent or practitioner.

Application for accredita-tion which has been dis-approved by the RRAB/RNAB may be appealed

to the Commissioner. Anadverse decision by theCommissioner may beappealed to the Secre-tary of Finance, whoshall rule on the ap-peal within 60 daysfrom receipt of suchappeal. Failure of theSecretary of Finance torule on the appealwithin the prescribedperiod shall be deemedas approval of the appli-

cation for accreditationof the appellant.

The resignation, retire-ment, death or incapaci-ty of any partner of ageneral professionalpartnership who hasbeen accredited by theRNAB/RNAB shall notresult in the cancellation

RNAB. Upon terminationof the hearing, theRRAB or RNAB shall de-cide by a majority voteof the members presentand voting, whether togrant or deny the Peti-tion.

In cases of disaccredi-tation or suspension,the RRAB or RNABshall issue to the TaxAgent concerned aNotice of Disaccredita-tion/Suspension signed

by its Chairman. Acopy of such Noticeshall be sent to the Pe-titioner. In the eventthat a Petition for Dis-a c c r e d i t a t i o n /Suspension is denied,the RRAB or RNABshall inform both par-ties of such decision,in an official communi-cation signed by itsChairman.

Only those Tax Agents/Practitioners, Partnersor Officers of GeneralProfessional Partner-ships, or Officers or Di-rectors of corporate en-tities engaged in taxpractice who have beenissued Certificate of Ac-creditation or ID cardshall be allowed to rep-resent a taxpayer ortransact business withthe Bureau of Internal

Revenue in representa-tion of a taxpayer forthe purpose(s) definedin these Regulations.

The BIR can refuse totransact official busi-ness with tax practi-tioners who are notaccredited before itand shall require that


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certain official state-ments such as returns,financial statements,reports, protests, re-quests for ruling, offi-cial correspondence andother statements, pa-pers or documents filedon behalf of a taxpayerbe signed or certified toby accredited persons,which shall bear the fol-lowing information belowtheir signature:

a. For individuals (CPAs

Members of GPPs, andother)a.1. Taxpayer Identifi-cation Number (TIN);anda.2. Certification of Ac-creditation Number;Date of Issuance, andDate of Expiryb. For members of thePhilippine Bar:a.1. Taxpayer Identifi-cation Number (TIN);a.2. Attorneys Roll

Number; anda.3. Mandatory Continu-ing Legal Education(MCLE) ComplianceNumber.

The RNAB shall keepan up-to-date MasterList of all suspended/d i s a c c r e d i t e d Ta xAgents /Prac t i t ioners .This Master List shallbe posted in the BIRwebsite and/or shall be

published in a newspaperof general circulation inorder that this list shallbe readily available forreference by the public.

Within 60 days, priorto the expiration ofthe accreditation, TaxAgents/ Practitionersmay apply for renewal

BIR ISSUANCES

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of their accreditation. -All accredited TAPs,whether engaged in indi-vidual practice, or belong-ing to GPPs or incorpo-rated entities engaged inaccounting and tax con-sultancy, including law-yers engaged in tax prac-tice before the BIR, shallpay the registration fee ofFive Hundred Pesos(P500.00) in the RevenueDistrict Office (RDO) hav-ing jurisdiction over theprincipal place of business

of the individual practi-tioner, GPP or incorpo-rated entity on or beforeJanuary 31 of each year.

All currently accreditedTAPs, whether engagedin individual practice, orbelonging to GPPs orincorporated entitiesengaged in accountingand tax consultancy,including lawyers en-gaged in tax practice be-

fore the BIR, shall pay theregistration fee of P500.00 not later thanMarch 15, 2010. TAPswho have previously beenaccredited but whose ac-creditation has since ex-pired, or those TAPs whostill have not filed theirapplications but havebeen practicing with theBIR are required to filetheir application not laterthan March 15, 2010.

Any TAP who violates anyprovision of RR No. 11-2006 or this Regulationshall, upon conviction foreach act or omission, bepunished by a fine of P1,000.00 or suffer impris-onment of not more than6 months, or both.

REVENUE MEMORAN-DUM CIRCULAR NO. 7

-2010

Publishes the full text ofthe Memorandum ofAgreement (MOA) be-tween the Bureau of In-ternal Revenue (BIR),Land Transportation Of-fice (LTO) and Insurance

Commission (IC) signedon January 20, 2010.

The IC shall perform,host, manage and main-tain the IC COC Gateway(ICG) for recording andmonitoring of all Certifi-cates of Cover (COCs) forCompulsory Third PartyLiability (CTPL) and Mo-tor Car ComprehensiveInsurance coverage. TheIC shall interconnect with

the Enhanced Certificateof Cover Verification Fa-cility (ECOCVF) of theLTO for the subsequentverification phase.

The IC shall require/mandate accredited in-surance companies tosubmit/file COCs pertain-ing to CTPL and Compre-hensive Insurance poli-cies into the ICG. For thispurpose, the IC shall im-

pose administrat ivesanctions upon insurancecompanies, their direc-tors/officers/ agents, forany willful failure or re-fusal to comply with orviolation of the aforesaidrequirement.

The LTO, on the other

hand, shall perform,host, manage and main-tain the ECOCVF for thesubsequent verificationof COCs, and shall inter-connect with the ICG forproper monitoring of col-lection of taxes, fees,and charges due to theBIR.

The BIR shall have ac-cess to the ICG andECOCVF to determineCOC issuances and theamount of taxes due/paid to the government.The BIR shall also haveaccess to the reportsgenerated from the ICGand ECOCVF for purpos-es of industry analysisand tracking.

REVENUE MEMORAN-DUM ORDER NO. 10-

2010

RMO No. 10-2010 pre-scribes the policies andguidelines for the mon-itoring, processing andmaintenance of a data-base of Estate Tax casesrelative to Project Rest inPeace (R.I.P.).

Project R.I.P. is beingimplemented to tap thelarge potential of in-creasing the number ofEstate Tax returns filedand the Estate Taxescollected.

All Revenue District Of-fices shall conduct a pro-


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mation shall be required:

a. Name of decedentb. Address of decedentc. Date of deathd. Status of decedent(i.e., Married, single,with children, etc.)e. Name of relative(s)/contact person(s)f. Address of relative

(s)/contact person(s)

All information gatheredshall be submitted to theChief, Audit Information,

Tax Exemption and In-c e n t i v e s D i v i s i o n(AITEID) for centralizeddata warehousing andother processing proce-dures.

The Revenue District Of-ficer (RDO) shall send aNotification Letter to therelative/contact person/residence of the dece-

dent who has been as-certained as a resident orregistered taxpayer ofthe Revenue District Of-fice. All other cases/information gathered onthe decedents who areNOT residents or regis-tered taxpayers of theRevenue District Officeshall be sent to theChief, AITEID. The Chief,AITEID shall ascertainwhich Revenue DistrictOffice has jurisdictionover these cases and

transmit the same tothese RDOs.

The Notification Lettershall advise and remindt h e r e l a t i v e /administrator of the de-cedent of the require-ments and the due datesfor filing of notice ofdeath, the Estate Taxreturn and the payment


BIR ISSUANCES

active and close monitor-ing of potential EstateTax cases by establish-ing linkages with and/or accessing or secur-ing the records of thefollowing:

a. Civil Registersb. Hospitalsc. Memorial Parksd. Cemeteriese. Funeral Parlorsf. Crematoriumsg. Judicial Clerks ofcourts

h. Obituariesi. Life Insurance com-panies and other finan-cial institutions

The Access to Recordsform/letter prescribed inRMO No. 7-2010 shallbe used for requestingfor information from theabove mentioned enti-ties. The following infor-

of the Estate Taxes. Ifthe relative/contact per-son of the decedent failsto file the Estate Taxreturn and pay the Es-tate Tax on the duedate, the RDO shall un-dertake the necessaryaction to determine theestate tax obligation ofthe deceased/decedentand to protect the inter-est of the BIR.

The National Investiga-tion Division shall be

responsible for trackingthe obituaries in thenewspapers of generalcirculation.

EXPANDED SENIOR CITIZENS ACT OF 2010 Republic Act No. 9994

AN ACT GRANTINGADDITIONAL BENE-

FITS AND PRIVILEGESTO SENIOR CITIZENS,FURTHER AMENDING

REPUBLIC ACT NO.7432, AS AMENDED,OTHERWISE KNOWNAS "AN ACT TO MAX-

IMIZE THE CONTRIBU-TION OF SENIOR CITI-

ZENS TO NATIONBUILDING, GRANT

BENEFITS AND SPE-CIAL PRIVILEGES ANDFOR OTHER PURPOS-

ES" "Expanded Senior Citi-

zens Act of 2010."

Section 2 of RepublicAct No. 7432, asamended by RepublicAct No. 9257, ishereby furtheramended to read asfollows:

SEC. 2. Definition ofterms. - For purposes ofthis Act, these terms aredefined as follows:

"(a) Senior citizen orelderly refers to anyresident citizen of thePhilippines at least six-ty (60) years old;

"(b) Geriatrics refer to

the branch of medicalscience devoted to thestudy of the biologicaland physical changesand the diseases of oldage;

"(c) Lodging establish-ment refers to a build-ing, edifice, structure,apartment or houseincluding tourist inn,apartelle, motorist ho-tel, and pension houseengaged in catering,leasing or providingfacilities to transients,tourists or travelers;

"(d) Medical Services refer to hospital ser-vices, professional ser-

vices of physicians andother health care pro-fessionals and diagnos-tics and laboratorytests that the neces-sary for the diagnosisor treatment of an ill-ness or injury;

"(e) Dental services tooral examination,cleaning, permanentand temporary filling,extractions and gumtreatments, restora-tion, replacement orrepositioning of teeth,or alteration of the al-veolar or periodontiumprocess of the maxillaand the mandible thatare necessary for the


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diagnosis or treatmentof an illness or injury;

"(f) Nearest survivingrelative refers to thelegal spouse who sur-vives the deceasedsenior citizen: Provid-ed, That where nospouse survives thedecedent, this shall belimited to relatives inthe following order ofdegree of kinship: chil-dren, parents, siblings,grandparents, grand-children, uncles andaunts;

"(g) Home health careservice refers to healthor supportive care pro-vided to the senior citi-zen patient at home bylicensed health careprofessionals to in-clude, but not limitedto, physicians, nurses,midwives, physicaltherapist and caregiv-ers; and

"(h) Indigent seniorcitizen, refers to anyelderly who is frail,sickly or with disability,and without pension orpermanent source ofincome, compensationor financial assistancefrom his/her relativesto support his/herbasic needs, as deter-mined by the Depart-ment of Social Welfareand development(DSWD) in consultationwith the National Coor-dinating and MonitoringBoard."

Section 4 Section 4 ofRepublic Act No. 7432,as amended by RepublicAct No. 9257, is herebyfurther amended to read

as follows:

"SEC. 4. Privileges forthe Senior Citizens. -The senior citizens shallbe entitled to the follow-ing:

"(a) the grant of twentypercent (20%) discountand exemption from thevalue -added tax (VAT),if applicable, on the saleof the following goodsand services from all es-tablishments, for theexclusive use and enjoy-ment or availment of thesenior citizen

"(1) on the purchase ofmedicines, includingthe purchase of influ-enza and pnuemococ-cal vaccines, and suchother essential medicalsupplies, accessoriesand equipment to bedetermined by the De-partment of Health(DOH)."The DOH shall estab-lish guidelines andmechanism of compul-sory rebates in thesharing of burden ofdiscounts among retail-ers, manufacturers anddistributors, taking intoconsideration their re-spective margins;"(2) on the profession-al fees of attendingphysician/s in all pri-vate hospitals, medicalfacilities, outpatientclinics and home healthcare services;"(3) on the profession-al fees of licensed pro-fessional health provid-ing home health careservices as endorsedby private hospitals oremployed throughhome health care em-

ployment agencies;"(4) on medical anddental services, diag-nostic and laboratoryfees in all private hos-pitals, medical facili-ties, outpatient clinics,and home health careservices, in accordancewith the rules and reg-ulations to be issuedby the DOH, in coordi-nation with the Philip-pine Health InsuranceCorporation(PhilHealth);"(5) in actual fare forland transportationtravel in public utilitybuses (PUBs), publicutility jeepneys (PUJs),taxis, Asian utility vehi-cles (AUVs), shuttleservices and publicrailways, includingLight Rail Transit(LRT), Mass Rail Trans-it (MRT), and PhilippineNational Railways(PNR);"(6) in actual transpor-tation fare for domesticair transport servicesand sea shipping ves-sels and the like, basedon the actual fare andadvanced booking;"(7) on the utilizationof services in hotelsand similar lodging es-tablishments, restau-rants and recreationcenters;"(8) on admission feescharged by theaters,cinema houses andconcert halls, circuses,leisure and amuse-ment; and"(9) on funeral andburial services for thedeath of senior citi-zens;

"(b) exemption from thepayment of individual

income taxes of seniorcitizens who are consid-ered to be minimumwage earners in accord-ance with Republic ActNo. 9504;"(c) the grant of a mini-mum of five percent(5%) discount relative tothe monthly utilization ofwater and electricity sup-plied by the public utili-ties: Provided, That theindividual meters for theforegoing utilities areregistered in the name ofthe senior citizen resid-ing therein: Provided,further, That the monthlyconsumption does notexceed one hundred kilo-watt hours (100 kWh) ofelectricity and thirty cu-bic meters (30 m3) ofwater: Provided, further-more, That the privilegeis granted per householdregardless of the numberof senior citizens residingtherein;

"(d) exemption fromtraining fees for socioec-onomic programs;

"(e) free medical anddental services, diagnos-tic and laboratory feessuch as, but not limitedto, x-rays, computerizedtomography scans andblood tests, in all gov-


9/21

Page 9 L C A LINES

"(1) an identificationcard issued by the Of-fice of the Senior CitizenAffairs (OSCA) of theplace where the seniorcitizen resides: Provid-ed, That the identifica-tion card issued by theparticular OSCA shall behonored nationwide;"(2) the passport of thesenior citizen con-cerned; and"(3) other documentsthat establish that thesenior citizen is a citizen

of the Republic and is atleast sixty (60) years ofage as further providedin the implementingrules and regulations.

"In the purchase of goodsand services which are onpromotional discount, thesenior citizen can avail ofthe promotional discountor the discount providedherein, whichever is high-er.

"The establishment mayclaim the discounts grant-ed under subsections (a)and (c) of this section astax deduction based onthe cost of the goods soldor services rendered: Pro-vided, That the cost of thediscount shall be allowedas deduction from grossincome for the same taxa-ble year that the discountis granted: Provided, fur-

ther, That the totalamount of the claimed taxdeduction net of VAT, ifapplicable, shall be in-cluded in their gross salesreceipts for tax purposesand shall be subject toproper documentation andto the provisions of theNational Internal Revenue

Code (NICR), asamended."

Section 5 of thesame Act, asamended, is herebyfurther amended toread as follows:

"SEC. 5. Government Assistance. - The gov-ernment shall providethe following:"(a) Employment

"Senior citizens who

have the capacity anddesire to work, or be re-employed, shall be pro-vided information andmatching services toenable them to be pro-ductive members of so-ciety. Terms of employ-ment shall conform withthe provisions of theLabor Code, as amend-ed, and other laws,rules and regulations.

"Private entities that willemploy senior citizensas employees, upon theeffectivity of this Act,shall be entitled to anadditional deductionfrom their gross in-come, equivalent to fif-teen percent (15%) ofthe total amount paidas salaries and wages tosenior citizens, subjectto the provision of Sec-tion 34 of the NIRC, as

amended: Provided,however, That such em-ployment shall continuefor a period of at leastsix (6) months: Provid-ed, further, That theannual income of thesenior citizen does notexceed the latest pov-erty threshold as deter-mined by the National

regularly reviewed toensure their continuingresponsiveness and sus-tainability, and to theextent practicable andfeasible, shall be upgrad-ed to be at par with thecurrent scale enjoyed bythose in actual service;

"(j) to the extent possi-ble, the government maygrant special discounts inspecial programs for sen-ior citizens on purchaseof basic commodities,

subject to the guidelinesto be issued for the pur-pose by the Departmentof Trade and Industry(DTI) and the Depart-ment of Agriculture(DA);

"(k) provision of expresslanes for senior citizensin all commercial andgovernment establish-ments; in the absencethereof, priority shall be

given to them; and"(l) death benefit assis-tance of a minimum ofTwo thousand pesos(P2, 000.00) shall begiven to the nearest sur-viving relative of a de-ceased senior citizenwhich amount shall besubject to adjustmentsdue to inflation in ac-cordance with the guide-lines to be issued by the

DSWD.

"In the availment of theprivileges mentionedabove, the senior citizen,or his/her duly author-ized representative, maysubmit as proof of his/her entitlement theretoany of the following:

ernment facilities, subject to the guidelines tobe issued by the DOH incoordination with thePhilHealth;

"(f) the DOH shall ad-minister free vaccina-tion against the influen-za virus and pneumo-coccal disease for indi-gent senior citizen pa-tients;

"(g) educational assis-tance to senior citizens

to pursue post second-ary, tertiary, post ter-tiary, vocational andtechnical education, aswell as short-termcourses for retooling inboth public and privateschools through provi-sion of scholarships,grants, financial aids,subsidies and other in-centives to qualifiedsenior citizens, includingsupport for books,

learning materials, anduniform allowances, tothe extent feasible: Pro-vided, That senior citi-zens shall meet mini-mum admission require-ments;

"(h) to the extent prac-ticable and feasible, thecontinuance of thesame benefits and privi-leges given by the Gov-ernment Service Insur-

ance System (GSIS),the Social Security Sys-tem (SSS) and the PAG-IBIG, as the case maybe, as are enjoyed bythose in actual service;

"(i) retirement benefitsof retirees from boththe government and theprivate sector shall be


10/21


Statistical CoordinationBoard (NSCB) of the Na-tional Economic and De-velopment Authority(NEDA) for that year.

"The Department of La-bor and Employment(DOLE), in coordinationwith other governmentagencies such as, but notlimited to, the Technolo-gy and Livelihood Re-source Center (TLRC)and the Department ofTrade and Industry

(DTI), shall assess, de-sign and implementtraining programs thatwill provide skills andwelfare or livelihood sup-port for senior citizens.

"(b) Education"The Department of Edu-cation (DepED), theTechnical Education andSkills Development Au-thority (TESDA) and theCommission on Higher

Education (CHED), inconsultation with non-governmental organiza-tions (NGOs) and peo-ple's organizations (POs)for senior citizens, shallinstitute programs thatwill ensure access to for-mal and nonformal edu-cation.

"(c) Health"The DOH, in coordina-tion with local govern-

ment units (LGUs), NGOsand POs for senior citi-zens, shall institute anational health programand shall provide an in-tegrated health servicefor senior citizens. Itshall train community-based health workersamong senior citizensand health personnel to

specialize in the geriatriccare and health problemsof senior citizens.

"The national health pro-gram for senior citizensshall, among others, beharmonized with the Na-tional Prevention ofBlindness Program of theDOH."Throughout the country,there shall be estab-lished a "senior citizens'ward" in every govern-ment hospital. This geri-

atric ward shall be forthe exclusive use of sen-ior citizens who are inneed of hospital confine-ment by reason of theirhealth conditions. How-ever, when urgency ofpublic necessity purposesso require, such geriatricward may be used foremergency purposes,after which, such "seniorcitizens' ward" shall bereverted to its nature as

geriatric ward."(d) Social Services"At least fifty percent(50%) discount shall begranted on the consump-tion of electricity, water,and telephone by thesenior citizens centerand residential care/group homes that aregovernment-run or non-stock, non-profit domes-tic corporation organized

and operated primarilyfor the purpose of pro-moting the well-being ofabandoned, neglected,unattached, or homelesssenior citizens, subject tothe guidelines formulatedby the DSWD.

"(1) "self and socialenhancement services"

which provide seniorcitizens opportunitiesfor socializing, organiz-ing, creative expression,and self-improvement;"(2) "after care and fol-low-up services" for citi-zens who are dis-charged from the homesor institutions for theaged, especially thosewho have problems ofreintegration with familyand community, where-in both the senior citi-zens and their families

are provided with coun-seling;"(3) "neighborhood sup-port services" whereinthe community or familymembers provide care-giving services to theirfrail, sick, or bedriddensenior citizens; and"(4) "substitute familycare " in the form ofresidential care or grouphomes for the aban-doned, neglected, unat-

tached or homeless sen-ior citizens and thoseincapable of self-care.

"(e) Housing"The national governmentshall include in its nation-al shelter program thespecial housing needs ofsenior citizens, such asestablishment of housingunits for the elderly.

"(f) Access to Public

Transport"The Department ofTransportation and Com-munications (DOTC) shalldevelop a program to as-sist senior citizens to fullygain access to publictransport facilities.

"(g) Incentive for FosterCare

"The government shallprovide incentives to indi-viduals or nongovernmen-tal institution caring for orestablishing homes, resi-dential communities orretirement villages solelyfor, senior citizens, asfollows:

"(1) realty tax holidayfor the first five (5)years starting from thefirst year of operation;and"(2) priority in the con-struction or mainte-

nance of provincial ormunicipal roads leadingto the aforesaid home,residential communityor retirement village."(h) Additional Govern-ment Assistance"(1) Social Pension"Indigent senior citizensshall be entitled to amonthly stipendamounting to Five hun-dred pesos (Php500.00)to augment the daily

subsistence and othermedical needs of seniorcitizens, subject to areview every two (2)years by Congress, inconsultation with theDSWD."(2) Mandatory Phil-Health Coverage"All indigent senior citi-zens shall be covered bythe national health in-surance program ofPhilHealth. The LGUs

where the indigent sen-ior citizens resides shallallocate the necessaryfunds to ensure the en-rollment of their indi-gent senior citizens inaccordance with thepertinent laws and regu-lations."(3) Social Safety Nets


11/21

"Social safety assistanceintended to cushion theeffects of economicsshocks, disasters and ca-lamities shall be availablefor senior citizens. Thesocial safety assistancewhich shall include, butnot limited to, food, medi-cines, and financial assis-tance for domicile repair,shall be sourced from thedisaster/calamity funds ofLGUs where the seniorcitizens reside, subject tothe guidelines to be is-sued by the DSWD."

Section 10 of thesame Act, as amend-ed, is hereby furtheramended to read asfollows:

"SEC. 10. Penalties. - Anyperson who refuses tohonor the senior citizencard issued by this thegovernment or violatesany provision of this Actshall suffer the followingpenalties:

"(a) For the first viola-tion, imprisonment ofnot less than two (2)years but not more thansix (6) years and a fineof not less than Fiftyt h o u s a n d p e s o s(Php50,000.00) but notexceeding One hundredt h o u s a n d p e s o s(Php100,000.00);"(b) For any subsequentviolation, imprisonmentof not less than two (2)years but not more thansix (6) years and a fineof not less than OneHundred thousand pe-sos (Php100,000.00)but not exceeding Twohundred thousand pesos(Php200,000.00); and

Page 11 L C A LINES

"(c) Any person whoabuses the privilegesgranted herein shall bepunished with impris-onment of not lessthan six (6) monthsand a fine of not lessthan Fifty thousandpesos (Php50,000.00)but not more than Onehundred thousand pe-sos (Php100,000.00).

If the offender is a cor-poration, partnership,organization or any simi-lar entity, the officialsthereof directly involvedsuch as the president,general manager, man-aging partner, or suchother officer chargedwith the management ofthe business affairs shallbe liable therefor.

"If the offender is an al-ien or a foreigner, he/she shall be deportedimmediately after serviceof sentence.

"Upon filing of an appro-priate complaint, andafter due notice andhearing, the proper au-thorities may also causethe cancellation or revo-cation of the businesspermit, permit to oper-ate, franchise and othersimilar privileges grantedto any person, establish-ment or business entitythat fails to abide by theprovisions of this Act."


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Republic Act No. 9995

AN ACT DEFINING ANDPENALIZING THECRIME OF PHOTO

AND VIDEO VOYEUR-ISM, PRESCRIBING

PENALTIES THEREFOR,AND FOR OTHER PUR-

POSES "Anti-Photo and Video

Voyeurism Act of2009" .

DEFINITION

(a) "Broadcast" means tomake public, by anymeans, a visual imagewith the intent that it beviewed by a person orpersons.(b) "Capture" with respectto an image, means tovideotape, photograph,film, record by anymeans, or broadcast.(c) "Female breast"means any portion of thefemale breast.(d) "Photo or video vo-yeurism" means the act oftaking photo or video cov-erage of a person orgroup of persons perform-ing sexual act or any sim-ilar activity or of capturingan image of the privatearea of a person or per-sons without the latter'sconsent, under circum-stances in which suchperson/s has/have a rea-sonable expectation ofprivacy, or the act of sell-ing, copying, reproducing,broadcasting, sharing,showing or exhibiting thephoto or video coverageor recordings of such sex-ual act or similar activitythrough VCD/DVD, inter-net, cellular phones andsimilar means or devicewithout the written con-sent of the person/s in-

thousand pesos(P100,000.00) but notmore than Five hundredthousand pesos(P500,000.00), or both,at the discretion of thecourt.If the violator is a juridi-cal person, its license orfranchise shall be auto-matically be deemed re-voked and the personsliable shall be the officersthereof including the edi-tor and reporter in thecase of print media, andthe station manager,editor and broadcaster inthe case of a broadcastmedia.If the offender is a publicofficer or employee, or aprofessional, he/she shallbe administratively lia-ble.If the offender is an al-ien, he/she shall be sub-

ject to deportation pro-ceedings after servinghis/her sentence andpayment of fines.

Exemption

Nothing contained in thisAct, however, shall ren-der it unlawful or punish-able for any peace of-ficer, who is authorizedby a written order of thecourt, to use the recordor any copy thereof asevidence in any civil,criminal investigation ortrial of the crime of pho-to or video voyeurism:Provided, That such writ-ten order shall only beissued or granted uponwritten application andthe examination underoath or affirmation of theapplicant and the wit-nesses he/she may pro-duce, and upon showingthat there are reasonable

Page 12 L C A LINES

Republic Act No. 9995

(c) To sell or distribute, orcause to be sold or dis-tributed, such photo orvideo or recording of sex-ual act, whether it be theoriginal copy or reproduc-tion thereof; or(d) To publish or broad-cast, or cause to be pub-lished or broadcast,whether in print or broad-cast media, or show orexhibit the photo or videocoverage or recordings of

such sexual act or anysimilar activity throughVCD/DVD, internet, cellu-lar phones and other simi-lar means or device.The prohibition under par-agraphs (b), (c) and (d)shall apply notwithstand-ing that consent to recordor take photo or videocoverage of the same wasgiven by such person/s.Any person who violatesthis provision shall be lia-

ble for photo or video vo-yeurism as defined here-in.

Penalties The penalty of imprison-ment of not less thanthree (3) years but notmore than seven (7)years and a fine of notless than One hundred

volved, notwithstandingthat consent to record ortake photo or video cov-erage of same was givenby such person's.(e) "Private area of aperson" means the na-ked or undergarmentclad genitals, public ar-ea, buttocks or femalebreast of an individual.(f) "Under circumstancesin which a person has areasonable expectationof privacy" means be-lieve that he/she coulddisrobe in privacy, with-out being concerned thatan image or a privatearea of the person wasbeing captured; or cir-cumstances in which areasonable person wouldbelieve that a privatearea of the person wouldnot be visible to the pub-lic, regardless of whetherthat person is in a publicor private place.

Prohibited Acts (a) To take photo or vid-eo coverage of a personor group of persons per-forming sexual act orany similar activity or tocapture an image of theprivate area of a per-son/s such as the nakedor undergarment cladgenitals, pubic area, but-tocks or female breastwithout the consent ofthe person/s involvedand under circumstancesin which the person/shas/have a reasonableexpectation of privacy;(b) To copy or repro-duce, or to cause to becopied or reproduced,such photo or video orrecording of sexual actor any similar activitywith or without consider-ation;


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14/21

L C A LINESPage 14

Subject: Rules andRegulations for the

Provision of Micro-AgriLoans

Minimum Criteria toDetermine Banks Ca-

pacity to Offer Micro-Agri Loans

The BSP will review theapplication based on thefollowing basic principles:

1. To ensure that thebanks have the capacityand technical capability tooffer micro-agri loans2. To ensure that the pro-vision of micro-agri loansuphold adequate and ap-propriate risk manage-ment systems and proce-dures as well as the mi-

crofinance best methodol-ogies and technologiesBased on the above prin-

ciples, the BSP may con-sider the banks micro -agri loans as microfinanceloans upon satisfaction ofthe following require-ments:1. The bank must have atrack record of at leasttwo years in implement-ing sustainable micro-finance programs, includ-ing acceptable portfolio-at-risk (PAR) levels as eval-uated against prevailingBSP standards.2. The bank must have anappropriate micro-agriloan product manual to beincluded in the banks mi-crofinance manual as oneof the types of services orproducts offered to pro-

spective clients. Loan/account officers must betrained about the micro-

agri loan product and thatthe details of the programcan be communicatedclearly to the clients.

Appropriate Risk Man-agement

Micro-agri loans shall besubject to the same riskmanagement mechanismsrequired for microfinanceloans including, but notlimited to the following:1. Clients ability to repaybased on cash flow analy-sis and affordability espe-cially the new clients. Theprospective client musthave other sources of in-come sufficient for the

periodic payment of theloan while the loan pro-

ject is not yet generat-

ing income, evaluatedthrough household cashflow analysis2. Adequate loan moni-toring, collection, con-trol, provisioning con-sistent with existingBSP regulations3. The loan product isincluded in the banksmicrofinance manual asone of the types of ser-vices or products of-fered to prospectiveclients4. The micro-agri loansmust have a sub-controlledger.

SECURITIES AND EXCHANGE COMMISSION ISSUANCE

JURISPRUDENCE

PEOPLE OF THE PHIL-IPPINES

vs.MARIANO OFEMIANO

Alias ManingG.R. No. 187155 Feb-

ruary 1, 2010

FACTS: AAA is BBBs

eldest daughter. AAA

lived with BBB and her

lover, Mariano Ofemiano

(Ofemiano), and their

children.

On the very night of

AAAs arrival in Caloocan

City, Ofemiano sexuallymolested her. The sexu-

al molestations contin-

ued almost everyday

thereafter. AAA revealed

to her mother her har-

rowing experience but

the latter dismissed her

report.

AAA visited her aunt and

found the courage to tell

the latter about her or-

deal. Enraged, her aunt

immediately reported the

matter to the authorities.

The Regional Trial Court

(RTC) convicted Ofemiano

of the crime of simple

rape.

The Court of Appeals (CA)

affirmed the decision of

the RTC.

ISSUE: Whether or not

the Court gravely erred in

convicting the Ofemiano

of the crime of rape.

RULING: The Court didnot err in convicting

Ofemiano of the crime of

rape.

The findings of the trial

court on the credibility of

witnesses and their testi-

monies are entitled to the

highest respect. Havingseen and heard the wit-

nesses and observed their

behavior and manner of

testifying, the trial court

is deemed to have been in

a better position to weigh


15/21

VOLUME III, ISSUE No. 2 Page 15

the evidence. Thus, the

trial courts evaluation

shall be binding on the

appellate court unless it

is shown that certain

facts of substance and

value have been plainly

overlooked, misunder-

stood, or misapplied.

None of the exceptions is

present in this case.

Jurisprudence holds that

the failure of the victim

to shout for help does

not negate rape. Even

the victims lack of re-

sistance, especially when

intimidated by the of-

fender into submission,

does not signify volun-

tariness or consent. Even

absent any actual force

or intimidation, rape maybe committed if the mal-

efactor has moral as-

cendancy over the vic-

tim. We emphasized

that in rape committed

by a close kin, such as

the victims father, step-

father, uncle, or the

common-law spouse of

her mother, moral influ-

ence or ascendancy sub-

stitutes for violence or

intimidation.

Thus, in this case, it was

understandable for the

victim to have silently

endured the sexual at-

tacks of her mothers live -

in partner. As correctly

observed by the appellate

court, Ofemiano evidently

used his moral ascendan-

cy over the victim to carry

out his bestial desire.

Also, the victims inability

to remember the exact

dates of the rape should

not be taken against her.

The exact time of the

commission of the crime

of rape is not a material

ingredient of this crime.

In this case, the victim

was raped almost every

night for a year by her

mothers live -in partner,

with her mother turning a

deaf ear to her cries forhelp. Under these cir-

cumstances, we could not

expect the victim to recall

her experiences in an ex-

act, detailed, and flawless

testimony. It is sufficient

if the acts complained of

are alleged to have taken

place as near to the actu-

al date at which the of-

fenses are committed as

the information or com-

plaint will permit.

To sustain a conviction for

rape, there must be proof

of the penetration of the

female organ. The testi-

mony of AAA described

with clarity how Ofemi-

ano raped her and suc-

ceeded in forcing himself

on her. As established

by jurisprudence, when

the victims straightfor-

ward testimony is con-

sistent with the physical

finding of penetration,

sufficient basis exists for

concluding that that sex-

ual intercourse did take

place.

BENEDICTA M. SAM-SON and MARCIAL M.

SAMSONvs.

HON. JUDGE GERALD-INE C. FIEL-

MACARAIG, BANK OFTHE PHILIPPINE IS-

LANDS, FAR EASTBANK AND TRUST CO.,

ATTY. JULIA CECILYCOCHING-SOSITO,

and THE REGISTER OFDEEDS FOR MARIKINA

CITY G.R. No. 166356 Feb-

ruary 2, 2010

FACTS: Sometime in

1998, petitioners Bene-dicta M. Samson and

Marcial M. Samson

(Spouses Samson) ob-

tained a loan amounting

to P10,000,000 from Far

East Bank and Trust Co.

(FEBTC). The loan was

secured by a real estate

mortgage over four par-

cels of land located in

Marikina City. When

spouses Samson failed to

comply with the terms of

the loan agreement,

FEBTC filed an application

for extra-judicial foreclo-

sure of the real estate

mortgage with the Office

of the Clerk of Court and

Ex-Officio Sheriff of the

Regional Trial Court (RTC)

of Marikina City. FEBTCs

application was given due

course, and a Notice of

Sheriffs Sale was issued.

The mortgaged real prop-

erties were later sold at

public auction to FEBTC as

the highest bidder, and aCertificate of Sale was

issued in favor of the

bank.

Almost two years later,

spouses Samson, filed a

case for Annulment of

Extra-judicial Foreclosure

and/or Nullification of

Sale and the Certificates

of Title, plus Damages

and with Prayer for a

Temporary Restraining

Order [TRO] and/or Writ

of Preliminary Injunction.

They questioned the va-


16/21

Page 16 L C A LINES

lidity of the 29 June

2000 auction sale for

alleged lack of posting

and publication require-

ments.

On 20 December 2002,

the Regional Trial Court

(RTC) of Marikina City,

Branch 192, issued an

Order denying spouses

Samsons application for

TRO and/or Writ of Pre-

liminary Injunction. Six

months later, the RTC

issued an Order dismiss-

ing the complaint for fail-

ure to prosecute for an

unreasonable length of

time.

Spouses Samson filed a

Motion for Reconsidera-tion, but this was denied

by the RTC.

The Court of Appeals

rendered judgment dis-

missing the Petition for

Certiorari. The Motion

for Reconsideration was

likewise denied.


the Court of Appeals

erred in dismissing the

petition for certiorari.

RULING: The appellate

court did not err when it

ruled that the petition for

certiorari was not the

proper remedy.

A writ of certiorari lies

only for an error of juris-

diction. It can be availed

of only if the lower tribu-

nal has acted without or

in excess of jurisdiction,

or with grave abuse of

discretion amounting to

lack or excess of jurisdic-

tion, and if there is no

appeal or any other plain,

speedy, and adequate

remedy in the ordinary

course of law. Where the

error is not one of juris-

diction but an error of law

or fact which is a mistake

of judgment, certiorari isnot available. In such

case, the remedy is ap-

peal.

The remedy to obtain re-

versal or modification of

the judgment on the mer-

its is appeal. This is true

even if the error, or one

of the errors, ascribed to

the court rendering the

judgment is its lack of

jurisdiction over the sub-

ject matter, or the exer-

cise of power in excess

thereof, or grave abuse of

discretion in the findings

of fact or of law set out in

the decision. The availa-

bility of the right to ap-

peal precludes recourse to

the special civil action for

certiorari. The RTC Order

subject of the petition was

a final judgment which

disposed of the case on

the merits; hence, it was

a subject for an ordinary

appeal, not a petition for

certiorari.

Even assuming that certi-

orari may lie, the Court

still cannot grant the in-

stant petition because the

spouses Samson failed to

show that public respond-

ent, in issuing the as-sailed Orders, acted with-

out or in excess of juris-

diction, or gravely abused

her discretion amounting

to lack or excess of juris-

diction. There is no

showing that the RTC

judge issued the Order in

a despotic or arbitrary

manner, or that she was

motivated by passion or

personal hostility against

spouses Samson. Grave

abuse of discretion im-

plies such capricious and


17/21

whimsical exercise of

judgment as is equivalent

to lack of jurisdiction or,

in other words, where the

power is exercised in an

arbitrary manner by rea-

son of passion, prejudice,

or personal hostility, and

it must be so patent or

gross as to amount to an

evasion of a positive duty

or to a virtual refusal to

perform the duty enjoined

or to act at all in contem-

plation of law. Such is

wanting in this case.

METROPOLITAN BANKAND TRUST CO. and

SOLIDBANK CORPORA-TION

vs.BERNARDITA H. PEREZ,

represented by herAttorney-in-Fact PA-

TRIA H. PEREZG.R. No. 181842 Feb-

ruary 5, 2010

FACTS : Solidbank Cor-

poration (Solidbank)

forged a lease contract

with Bernardita H. Perez

(Perez), over two parcelsof land located in Bulacan

for a period of 15 years

commencing on January

1, 1998. Solidbank was

to, as it did, construct a

one-storey building spe-

cifically suited for bank

premises.

Solidbank was later ac-

quired by Metropolitan

Bank and Trust Company

(Metrobank), the latter as

the surviving entity.

On September 24, 2002,

Metrobank sent a notice

of termination of the lease

contract effective Sep-

tember 30, 2002. Perez,

objecting to the termina-

tion, filed a complaint for

breach of contract and

damages against Solid-

bank and Metrobank be-

fore the Regional Trial

Court (RTC) which ruled

in its favor.

The Court of Appeals (CA)

affirmed the decision of

the trial court even if Pe-

rez admitted that the fil-

ing fees she paid did not

cover her prayer for unre-

alized income for the en-

suing idle months, for at

the time of filing and pay-

ment, the period that the

building would be idle

could not yet be deter-

mined .


the RTC lacks jurisdictionover the complaint forPerezs failure to pay thecorrect docket fees.

RULING: The RTC did

not lack of jurisdiction

over the complaint for

Perezs failure to pay the

correct docket fees.

In Manchester Develop-

ment Corporation v. Court

of Appeals , the Court held

that a pleading which

does not specify in the

prayer the amount sought

shall not be admitted or

shall be expunged, and

that a court acquires ju-

risdiction only upon pay-

ment of the prescribed

docket fee. This rule wasrelaxed in Sun Insurance

Office, Ltd. v. Asuncion

which was echoed in the

2005 case of Heirs of Ber-

tuldo Hinog v. Melico ,

where the court ruled that

while the payment of pre-

scribed docket fee is a

jurisdictional requirement,

even its non-payment at

the time of filing does not

automatically cause the

dismissal of the case, as

long as the fee is paid

within the applicable

prescriptive or regle-

mentary period , more

so when the party in-

volved demonstrates a

willingness to abide by

the rules prescribing such

payment. Thus, when in-

sufficient filing fees were

initially paid by the

plaintiffs and there was

no intention to defraud

the government , the

Manchester rule does not

apply.

The ensuing months in

which the leased premises

would be rendered vacant

could not be determined

at the time of the filing of

the complaint. It bears

recalling that the building

constructed on Perezs

leased premises was spe-

cifically constructed to

house a bank, hence, the

idle period before another

occupant with like busi-

ness may opt to lease

would be difficult to pro-

ject.

Metrobank raised the is-

sue of jurisdiction onlybefore the appellate court

after it participated in the

proceedings before the

trial court. While lack of

jurisdiction may be raised

at any time, a party may



18/21


19/21

VOLUME III, ISSUE No. 2 Page 19

SECTION 2. Time tointervene. The motion

to intervene may befiled at any time be-fore rendition of judg-ment by the trialcourt . A copy of thepleading-in-interventionshall be attached to themotion and served onthe original parties.

Simply, intervention is a

procedure by which third

persons, not originally

parties to the suit but

claiming an interest in the

subject matter, come into

the case in order to pro-

tect their right or inter-

pose their claim. Its main

purpose is to settle in one

action and by a single

judgment all conflicting

claims of, or the wholecontroversy among, the

persons involved.

To warrant intervention

under Rule 19 of the

Rules of Court, two requi-

sites must concur: (1) the

movant has a legal inter-

est in the matter in litiga-

tion; and (2) intervention

must not unduly delay or

prejudice the adjudication

of the rights of the par-

ties, nor should the claim

of the intervenor be capa-

ble of being properly de-

cided in a separate pro-

ceeding. The interest,

which entitles one to in-

tervene, must involve the

matter in litigation and of

such direct and immediate

character that the inter-

venor will either gain or

lose by the direct legal

operation and effect of

the judgment.

The Office of the Ombuds-

man is not an appropriate

party to intervene in the

instant case. It must re-

main partial and de-

tached. More importantly,

it must be mindful of its

role as an adjudicator, not

an advocate.

It is an established doc-

trine that judges should

detach themselves from

cases where their deci-

sions are appealed to a

higher court for review.

The raison detre for sucha doctrine is the fact that

judges are not active

combatants in such pro-

ceeding and must leave

the opposing parties to

contend their individual

positions and the appel-

late court to decide the

issues without the judges

active participation.

When judges actively par-

ticipate in the appeal of

their judgment, they, in a

way, cease to be judicial

and have become adver-

sarial instead.

INTEGRATED BAR OFTHE PHILIPPINES

represented by its Na-tional President, Jose

Anselmo I. Cadiz,H. HARRY L. ROQUE,and JOEL RUIZ BU-

TUYANvs.

HONORABLE MANILAMAYOR

JOSE LITO ATIENZA G.R. No. 175241

February 24, 2010

FACTS: The IBP, through

its then National President

Jose Anselmo Cadiz

(Cadiz), filed with the Of-

fice of the City Mayor of

Manila a letter application

for a permit to rally at the

foot of Mendiola Bridge on

June 22, 2006 from 2:30

p.m. to 5:30 p.m. to be

participated in by IBP of-

ficers and members, law

students and multi-

sectoral organizations.

Then Mayor Jose Lito

Atienza (Atienza) issued

a permit dated allowing

the IBP to stage a rallyon given date but indi-

cated therein Plaza Mi-

randa as the venue, in-

stead of Mendiola Bridge,

which permit the IBP re-

ceived on June 19, 2006.

Aggrieved, IBP filed on

June 21, 2006 before the

Court of Appeals (CA) a

petition for certiorari.

The petition having been

unresolved within 24

hours from its filing, IBP

filed before the Supreme

Court (SC) a petition for

certiorari which assailed

the appellate courts in-

action or refusal to re-

solve the petition within

the period provided un-

der the Public Assembly

Act of 1985.

The SC denied the peti-


20/21

Section 6 of the

Public Assembly Act

reads:

Section 6. Actionto be taken on the appli-cation -

xxx

(c) If the mayor is of theview that there is immi-nent and grave danger of

a substantive evil war-ranting the denial ormodification of the per-mit, he shall immediatelyinform the applicant whomust be heard on thematter.

xxx

(e) If the mayor or anyofficial acting in his be-half denies the applica-tion or modifies theterms thereof in his per-mit, the applicant maycontest the decision in anappropriate court of law.

(f) In case suit isbrought before the Met-ropolitan Trial Court, theMunicipal Trial Court, theMunicipal Circuit TrialCourt, the Regional TrialCourt, or the Intermedi-ate Appellate Court, itsdecisions may be ap-pealed to the appropriatecourt within forty-eight(48) hours after receiptof the same. No appealbond and record on ap-peal shall be required. Adecision granting suchpermit or modifying it interms satisfactory to theapplicant shall, be imme-diately executory.

(g) All cases filed incourt under this Sectionshall be decided withintwenty-four (24) hours

from date of filing. Casesfiled hereunder shall beimmediately endorsed tothe executive judge for

disposition or, in his ab-sence, to the next inrank.

(h) In all cases, any deci-sion may be appealed tothe Supreme Court.

Telegraphic appeals to befollowed by formal ap-peals are hereby allowed.

In modifying the permit

outright, Atienza gravely

abused his discretion

when he did not immedi-

ately inform the IBP who

should have been heard

first on the matter of his

perceived imminent and

grave danger of a sub-

stantive evil that may

warrant the changing of

the venue. The oppor-

tunity to be heard pre-

cedes the action on the

permit, since the appli-

cant may directly go to

court after an unfavora-

ble action on the permit.

Atienza failed to indicate

how he had arrived atmodifying the terms of

the permit against the

standard of a clear and

present danger test

which, it bears repeating,

is an indispensable con-

dition to such modifica-

tion. Nothing in the is-

sued permit adverts to

an imminent and grave

danger of a substantive

evil, which blank denial

or modification would,

when granted imprimatur

as the appellate court

would have it, render

illusory any judicial scru-

tiny thereof.

Notably, Ateinza failed to

indicate in his Comment

any basis or explanation

for his action. It smacks

of whim and caprice for

Atienza to just impose a

change of venue for an

assembly that was slated

for a specific public

place. It is thus reversi-

ble error for the appel-

late court not to have

found such grave abuse

of discretion and, un-

der specific statutory

provision, not to have

modified the permit in

terms satisfactory to theapplicant.

L C A LINESPage 20

tion for being moot and

academic, denied the

relief that the petition be

heard on the merits in

view of the pendency of

the case with the CA and

denied the motion for

reconsideration.

The rally pushed through

on June 22, 2006 at

Mendiola Bridge.

The Manila Police District

thereupon instituted a

criminal action against

Cadiz for violating the

Public Assembly Act in

staging a rally at a venue

not indicated in the per-

mit.


the CA erred in holding

that the modification of

the venue in IBPs rally

permit does not consti-

tute grave abuse of dis-

cretion.

RULING: The CA erred

in holding that the modi-

fication of the venue in

IBPs rally permit does

not constitute grave

abuse of discretion.


21/21

L C A LINESPage 21

LCA Lines FebruaryVolume iii, Issue 2

J L s C O R N E R

A SUDDEN CHANGE OF MIND

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Yours always and truly,Ben

P.S. Congratulations on you winning the lottery.

lca lines | volume iii, issue no. 2

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