March 2014 Philippine Supreme Court Decisions on Legal and Judicial Ethics | LEXOTERICA: A PHILIPPINE BLAWG

See - March 2014 Philippine Supreme Court Decisions on Legal and Judicial Ethics | LEXOTERICA: A PHILIPPINE BLAWG





"x x x.

Attorney; Disbarment cases; Initiation. Complainants who are members of the Congressional Village Homeowner’s Association, Inc. filed a Complaint for Disbarment against Atty. Jimenez for violating Rule 12.03, Canon 12, Canon 17, Rule 18.03, and Canon 18 of the Code of Professional Responsibility for his negligence in handling an appeal in a case involving the Association and willful violation of his duties as an officer of the court.

The Supreme Court held that the complainants have personality to file the disbarment case. In Heck v. Judge Santos, the Court held that “[a]ny interested person or the court motu proprio may initiate disciplinary proceedings.” The right to institute disbarment proceedings is not confined to clients nor is it necessary that the person complaining suffered injury from the alleged wrongdoing. The procedural requirement observed in ordinary civil proceedings that only the real party-in-interest must initiate the suit does not apply in disbarment cases. Disbarment proceedings are matters of public interest and the only basis for the judgment is the proof or failure of proof of the charges. Further, the Supreme Court held that a lawyer engaged to represent a client in a case bears the responsibility of protecting the latter’s interest with utmost diligence. In failing to file the appellant’s brief on behalf of his client, Atty. Jimenez had fallen far short of his duties as counsel as set forth in Rule 12.04, Canon 12 of the Code of Professional Responsibility which exhorts every member of the Bar not to unduly delay a case and to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.  However, the Supreme Court only suspended Atty. Jimenez from the practice of law for one month. Nestor Figueras and Bienvenido Victoria, Jr. v. Atty. Diosdado B. Jimenez,A.C. No. 9116, March 12, 2014.

Attorney; Fidelity to Client. Atty. Guaren was charged with violating the Canon of Professional Responsibility when he accepted the titling of complainants’ lot and despite the acceptance of P7,000, failed to perform his obligation and allowing 5 years to elapse without any progress in the titling of complainants’ lot. The Supreme Court reiterated that the practice of law is not a business.  It is a profession in which duty to public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits.  The gaining of a livelihood should be a secondary consideration.  The duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves. In this case, Atty. Guaren admitted that he accepted the amount of P7,000 as partial payment of his acceptance fee. He, however, failed to perform his obligation to file the case for the titling of complainants’ lot despite the lapse of 5 years. Atty. Guaren breached his duty to serve his client with competence and diligence when he neglected a legal matter entrusted to him. Thus, Atty. Guaren violated Canons 17 and 18 of the Code of Professional Responsibility and was suspended from the practice of law for six months.Stephan Brunet and Virginia Romanillo Brunet v. Atty. Ronald L. Guaren,A.C. No. 10164, March 10, 2014.

Attorney; Neglect of Duty. Atty. Agleron was charged with violating Rule 18.03 of the Code of Professional Responsibility when he neglected a legal matter entrusted to him. The Supreme Court held that once a lawyer takes up the cause of his client, he is duty bound to serve his client with competence, and to attend to his client’s cause with diligence, care and devotion regardless of whether he accepts it for a fee or for free. He owes fidelity to such cause and must always be mindful of the trust and confidence reposed on him.

In this case, Atty. Agleron admitted his failure to file the complaint despite the fact that it was already prepared and signed. He attributed his non-filing of the appropriate charges on the failure of complainant to remit the full payment of the filing fee and pay the 30% of the attorney’s fee. Such justification, however, is not a valid excuse that would exonerate him from liability. As stated, every case that is entrusted to a lawyer deserves his full attention whether he accepts this for a fee or free. Even assuming that complainant had not remitted the full payment of the filing fee, he should have found a way to speak to his client and inform him about the insufficiency of the filing fee so he could file the complaint. Atty. Agleron obviously lacked professionalism in dealing with complainant and showed incompetence when he failed to file the appropriate charges. A lawyer should never neglect a legal matter entrusted to him, otherwise his negligence renders him liable for disciplinary action such as suspension ranging from three months to two years. In this case, Atty. Agleron was suspended from the practice of law three months. Ermelinda Lad Vda. De Dominguez, represented by her Attorney-in-Fact, Vicente A. Pichon v. Atty. Arnulfo M. Agleron Sr.,A.C. No. 5359, March 10, 2014.

 Attorney; Notarization; Personal Appearance. A petition for disbarment was filed against Atty. Cabucana, Jr. for falsification of public document. The requirement of personal appearance of the affiant is required under the Notarial Law and Section 2 (b) of Rule IV of the Rules on Notarial Practice of 2004. The Supreme Court held that as a notary public, Atty. Cabucana, Jr. should not notarize a document unless the person who signs it is the same person executing it and personally appearing before him to attest to the truth of its contents. This is to enable him to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free and voluntary act and deed. Thus, Atty. Cabucana, Jr. was found violating Rule 1.01, Canon 1 of the Code of Professional Responsibility and suspended from the practice of law for three months. His notarial commission was revoked and he was prohibited from being commissioned as a notary public for two years. Licerio Dizon v. Atty. Marcelino Cabucana, Jr.,A.C. No. 10185, March 12, 2014.

Judge; Violation of Administrative Rules; Unprofessional Conduct. Judge Larida, Jr. was charged for committing various anomalies and irregularities. The Supreme Court held that Judge Larida, Jr. committed several lapses, specifically the non-submission to the Court of the required inventory of locally-funded employees, and his allowing Marticio to draft court orders. Such lapses manifested a wrong attitude towards administrative rules and regulations issued for the governance and administration of the lower courts, to the extent of disregarding them, as well as a laxity in the control of his Branch and in the supervision of its functioning staff. The omission to submit the inventory should not be blamed on Atty. Calma as the Branch Clerk of Court. Although it was very likely that Judge Larida, Jr. had tasked Atty. Calma to do and submit the inventory in his behalf, Judge Larida, Jr. as the Presiding Judge himself remained to be the officer directly burdened with the responsibility for doing so. Further, for knowingly allowing detailed employees to solicit commissions from bonding companies, Judge Larida, Jr. contravened the Code of Judicial Conduct, which imposed on him the duty to take or initiate appropriate disciplinary measures against court personnel for unprofessional conduct of which he would have become aware. Office of the Court Administrator v. Judge Edwin C. Larida, Jr., RTC, Branch 18, Tagaytay City,A.M. No. RTJ-08-2151, March 11, 2014.

 Judge; Gross Ignorance of the Law. An administrative complaint was filed against Judge Bitas for fixing the accused’s bail and reducing the same motu proprio. In this case, Miralles was charged with Qualified Trafficking, which under Section 10 (C) of R.A. No. 9208 is punishable by life imprisonment and a fine of not less than P2,000,000 but not more than P5,000,000.  Thus, by reason of the penalty prescribed by law, the grant of bail is a matter of discretion which can be exercised only by Judge Bitas after the evidence is submitted in a hearing. The hearing of the application for bail in capital offenses is absolutely indispensable before a judge can properly determine whether the prosecution’s evidence is weak or strong. The Supreme Court held that not only did Judge Bitas deviate from the requirement of a hearing where there is an application for bail, he also granted bail to Miralles without neither conducting a hearing nor a motion for application for bail. Judge Bitas’ acts are not mere deficiency in prudence, discretion and judgment on his part, but a patent disregard of well-known rules.  When an error is so gross and patent, such error produces an inference of bad faith, making the judge liable for gross ignorance of the law. Ma. Liza M. Jorda, City Prosecutor’s Office, Tacloban City v. Judge Crisologo S. Bitas, RTC, Branch 7, Tacloban City; Prosecutor Leo C. Tabao v. Judge Crisologo S. Bitas, RTC, Branch 7, Tacloban City,A.M. No. RTJ-14-2376/A.M. No. RTJ-14-2377. March 5, 2014.

x x x."

BIGAMY ; MARRIAGE AND PROPERTY | Philippine Law Journal

See - REVISITING SUPREME COURT DECISIONS: ON MARRIAGE AND PROPERTY | Philippine Law Journal





"x x x.

CONSTRUING BIGAMY AND ARTICLES 40 AND 41: WHAT WENT WRONG?

Bigamy will be discussed from three points of view: (1) where both marriages are valid in all aspects; (2) where thesecond marriage is void for reasons other than the existence of thefirst marriage; and (3) where thefirst marriage is void.

First, when both first and second marriages are valid—in the sense that all requisites are present and the first marriage has not ended in some manner—without any argument and clearly, there is bigamy.

Anent the second and third points of view, Section 29 of Marriage Law of 1929,[22] Article 83 of the New Civil Code,[23] and Article 41 of the Family Code[24] are very similar and relevant for discussion of the situation where the second marriage is void for reasons other than the existence of the first marriage. Based on this, the Supreme Court enumerated the elements of bigamy in Mercado v. Tan:[25]

1. The offender has been legally married;

2. The marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;

3. He contracts a second or subsequent marriage; and

4. The second or subsequent marriage has all the essential requisites for validity.[26]

According to Justice Carpio[27], the first three elements merely enumerate what has been provided for by the Revised Penal Code[28]; the last element necessarily follows from the language of the law that the offender contracts a “second or subsequent marriage.”[29] Otherwise stated, it is essential that, for a person to have committed the crime of bigamy, he must have contracted a second marriage that would have been valid (i.e., possessed all the essential requisites of a marriage) had the first (also valid) marriage not existed.

Article 35 of the Family Code provides in part that void marriages are those bigamous or polygamous marriages not falling under Article 41 of the Family Code.[30] What this means is that if the person who contracted the second marriage did not institute a summary proceeding for the declaration of presumptive death of his first spouse, then the second marriage would be void for being bigamous. Under Article 41 of the Family Code, the presumption is that the first marriage is valid.

These principles of bigamous marriages, as embodied in our civil and criminal laws, have been muddled by the Supreme Court in various cases, includingTenebro v. CA[31]. In this case, Veronico Tenebro married Leticia Ancajas in 1990. Soon after, Tenebro left Ancajas after he told her that in 1986 he was previously married to one Hilda Villareyes. Afterwards, Tenebro contracted a third marriage with a certain Nilda Villegas in 1993. Furious, Ancajas filed a complaint for bigamy against Tenebro. Both the lower court and the Court of Appeals found Tenebro guilty of the crime of bigamy.

On appeal to the Supreme Court, Tenebro alleged that a civil court had declared his marriage to Hilda Villareyes void ab initio due to the absence of a marriage ceremony and that the judicial declaration of the nullity of his marriage to Ancajas retroacted to the date on which it had been celebrated.

The Supreme Court held that Article 349 of the Revised Penal Code criminalizes any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. It further held that the Revised Penal Code penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage. The Supreme Court also ruled that a declaration of the nullity of the second marriage on the ground of psychological incapacity “is of absolutely no moment insofar as the State’s penal laws are concerned.”[32] Thus, the subsequent judicial declaration of the nullity of Tenebro’s second marriage is not a defense in avoiding criminal liability for bigamy.

And the question thus arises: Is psychological incapacity an element of legal capacity or of consent to marry? If it is neither, then the Supreme Court should have said that a marriage under Article 36 of the Family Code is more in the nature of a voidable marriage and thus, not a defense to bigamy.

Unfortunately, the Supreme Court did not utilize Article 41 of the Family Code in convicting Tenebro of bigamy. Instead, the Supreme Court based its bigamy conviction on Article 40 of the Family Code which states:

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.[33]

Why was Article 40 of the Family Code applied when the Supreme Court merely considers it as a rule of procedure? [34] What are the implications of the Tenebro ruling? As Justice Carpio pointed out in his dissenting opinion inTenebro:

1. The mere act of entering into a second marriage contract while the first marriage subsists consummates the crime of bigamy, even if the second marriage were void ab initio on grounds other than the mere existence of the first marriage.[35]

2. A marriage declared by law void ab initio and judicially confirmed void from the beginning, is deemed valid for the purpose of a criminal prosecution for bigamy.[36]

According to Justice Carpio, in so ruling, the majority opinion simply brushed aside the law and overturned 75 years of consistent rulings that if the second marriage were void on grounds other than the existence of the first marriage, there is no crime of bigamy. Justice Carpio reminded that, “It is an essential element of the crime of bigamy that the alleged second marriage, having all the essential requisites, would be valid were it not for the subsistence of the first marriage.”[37]

Article 41 of the Family Code, not Article 40, should have been the basis for convicting Tenebro. It should be reiterated that Article 40 of the Family Code is merely a rule of procedure.[38] It contemplates a situation of two void marriages: a prior existing void marriage and a second marriage that would have been valid had there not been a prior void marriage.

To illustrate Article 40 of the Family Code, the Supreme Court consistently cites the case of Wiegel v. Sempio-Diy.[39] Here, Karl Wiegel sought the declaration of nullity of his marriage to Lilia Wiegel, which was celebrated in 1978, on the ground of Lilia’s previous existing marriage to a certain Eduardo Maxion, which was celebrated in 1972. While admitting that her marriage to Maxion existed, Lilia claimed it to be null and void because they were allegedly forced to enter the marital union. Contesting the validity of the pre-trial court order, Lilia asked that she be able to present evidence before the court not only that the first marriage was vitiated by force, but also to prove that Maxion was already married to somebody else at the time she married him. Judge Sempio-Diy did not allow the presentation of evidence since the existence of force exerted on both parties of the first marriage had already been agreed upon at pre-trial. On a side note, the question also begs itself: is it really possible under Article 48 of the Family Code[40] and its predecessors to stipulate on the ground for nullity of a marriage?

In upholding Sempio-Diy’s order, the Supreme Court held that, first, Lilia does not have to present evidence that her first marriage has been vitiated by force. A marriage vitiated by force is merely voidable—that is, valid until annulled. Since no annulment had yet been made, it is clear that when Lilia married Wiegel, she is still validly married to Maxion. Consequently, her marriage to Wiegel is void.. Second, Lilia does not have to present evidence as to her husband’s alleged marriage at the time they married. While Lilia and Maxion’s marriage is void, it still needs to be declared void by a court.[41]Thus, the Supreme Court said that since the first marriage had not been annulled or declared void, then Lilia was considered a married woman at the time she married Karl, consequently, her marriage with Karl is void. This is a proper application of Article 40, and the author agrees to the various aforementioned conclusions. However, Wiegel is not a case involving bigamy.

It is shocking therefore that the Supreme Court ruled, without qualification, in Terre v. Terre[42] that the second marriage entered into by Atty. Jordan Terre was “bigamous and criminal in nature.” In this case, Dorothy Terre accused Atty. Jordan Terre of grossly immoral conduct for contracting a second marriage and living with another woman, while his prior marriage with Dorothy remained subsisting. It turned out that Dorothy had a previous marriage with one Merlito Bercenilla, her first cousin. Jordan thus believed that his marriage to Dorothy was void ab initio, and that he could contract a second marriage with Helen Malicdem.

The Supreme Court disbarred Jordan for grossly immoral conduct under Rule 138, Sec. 27 of the Rules of Court.[43] The Court held that even if Jordan had entered into his first marriage in good faith, a judicial declaration of the nullity of the same is still required before remarriage. The Supreme Court then held his marriage to Dorothy was valid and his marriage to Helen was “bigamous and criminal” in nature.

But, why was there a need to qualify Jordan’s second marriage as “bigamous and criminal in nature”? Surely, for the criminal liability for bigamy to attach, both the first and second marriages must be valid?

Mercado[44] is yet another “difficult” ruling. Here, at the time of the celebration of the marriage of Vincent Mercado and Consuelo Tan, Mercado was already married to a certain Thelma Oliva. Consequently, Consuelo Tan filed a complaint for bigamy against Mercado. More than a month after the bigamy case was filed, Mercado filed an action for the declaration of nullity of his marriage to Thelma Oliva with the RTC, which judicially declared the marriage between Mercado and Oliva to be null and void on the basis of Article 36 of the Family Code. Mercado was still convicted of bigamy by the lower court and thus, appealed to the Supreme Court.

The Supreme Court ruled that Article 40 of the Family Code (again, a rule of procedure)[45] effectively sets aside the conflicting jurisprudence on whether a judicial declaration of nullity of marriage is necessary before one can contract a subsequent marriage. The fact that the first marriage is void from the beginning cannot now be a defense against a bigamy charge. As with a voidable marriage, there must be a judicial declaration of the nullity of a marriage before contracting a second marriage.[46] That Mercado subsequently obtained a judicial declaration of the nullity of his first marriage was immaterial as the “crime” had already been consummated.

Another Supreme Court decision that has confused the application of the Article 40 of the Family Code is that of Marbella-Bobis v. Bobis.[47] In this case, Isagani Bobis first married a certain Dulce Javier in 1985. Without annulling, nullifying, or terminating his first marriage, Isagani married a second time, to petitioner Imelda Marbella-Bobis in 1996. Then, Isagani married a third time, to one Julia Hernandez. After an information for bigamy was filed against Isagani by Imelda, he initiated a civil action for the judicial declaration of absolute nullity of his first marriage on the ground that it had been celebrated without a marriage license. He then moved to have the proceedings in the criminal case suspended invoking the pending civil case for the nullity of his first marriage as a prejudicial question.

The Supreme Court held that the subsequent filing of a civil action for declaration of nullity of a previous marriage does not constitute a prejudicial question to a criminal case for bigamy. Article 40 of the Family Code requires a prior judicial declaration of nullity of a previous marriage before a party may remarry and that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage.[48]

Surely, reductio ad absurdum, if a person is married to a sibling, there is no need for a prior declaration of nullity. The law itself tells us that the complete absence of a valid marriage license makes a marriage absolutely void.[49]Article 39 of the Family Code is very clear: The action or defense for the declaration of absolute nullity of a marriage shall not prescribe.

While Isagani Bobis should not have married three times, should the Supreme Court really have ruled on passion against the “adventurous bigamist”? And which of the three marriages was actually bigamous? Yes, the second marriage in Bobis is void. However, it cannot be considered bigamous through Article 40 of the Family Code. It is the third marriage that is void, illegal, and bigamous under Article 41 of the Family Code.

Either Bobis is right and Morigo v. People[50]is wrong, or vice-versa.

In the case of Morigo, Lucio Morigo married Lucia Barrete, who then reported back to her work in Canada eight days after their marriage. A year later, Barrete filed a petition for divorce against Morigo before the Ontario Court, which petition was granted. Morigo married Maria Lumbago and eventually filed a complaint for judicial declaration of nullity of his marriage to Barrete with the Family Court on the ground that no marriage ceremony had taken place. Soon after, a charge of bigamy was filed against Morigo by Lumbago. Morigo moved for suspension of the arraignment on the ground that the civil case for judicial nullification of his first marriage posed a prejudicial question in the bigamy case. His motion was denied and he was convicted. While the case was on review in the Court of Appeals, the Family Court judicially declared Morigo’s first marriage void for absence of a marriage ceremony. The Court of Appeals, however, affirmed the bigamy conviction on the ground that the subsequent declaration of Morigo and Lucia’s marriage could not acquit Morigo as what is sought to be punished by the Revised Penal Code is the act of contracting a second marriage before the first marriage has been dissolved.

The Supreme Court overturned Morigo’s conviction since the first element of bigamy—that is, that the offender had been legally married—was not present. Morigo and Lucia’s marriage is void ab initio and as such, following the principle of retroactivity of a marriage being declared void ab initio, the two were never married from the beginning.

But was not Morigo still married when he married a second time? Did not the Supreme Court say that a person cannot judge for himself whether his marriage is valid or not? And did not the Supreme Court also tell us that the subsequent filing of a civil action for declaration of nullity of a previous marriage does not constitute a prejudicial question to a criminal case for bigamy; that Article 40 of the Family Code requires a prior judicial declaration of nullity of a previous marriage before a party may remarry; and that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage? And finally, unlike Isagani Bobis, both of Morigo’s marriages took place when the Family Code was already in effect, so why was Article 40 not applied?

Interestingly, the Supreme Court distinguished Morigo from Mercado in theBobis case. The Supreme Court said that in Mercado, while the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated,[51] unlike Morigo, the marriage inMercado was celebrated on two occasions: “Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio.”[52]

Please note, however: In Morigo, there was no marriage ceremony performed by a duly authorized solemnizing officer. In Mercado, the marriage was declared void on the basis of Article 36 of the Family Code—not on the absence of either an essential or a formal requisite. The two cases should not have been compared. Again, I raise the question: Is psychological incapacity an element of legal capacity or of consent to enter into a marriage?

Based on the case of Morigo and present jurisprudence, is it safe to say that:

1. If one wanted to get out of a criminal conviction, the defense is not psychological incapacity or the lack of a marriage license, but the lack of a marriage ceremony?
2. If both marriage ceremony and marriage license are elements of formal requisites, then the absence of a marriage license does not have the same effect as the absence of a marriage ceremony? [Please note: A marriage ceremony does not have a particular form, but a marriage license does.]
3. If the defense were psychological incapacity, it will not acquit one of bigamy? Therefore, psychological incapacity does not render a marriage void? Is the Supreme Court, therefore, ready to say that the presence of psychological incapacity merely makes a marriage voidable? If so, thenMercado is correct?
4. One will always be a bigamist even if both marriages were void and one did not seek the nullity of the first marriage before subsequently marrying?
5. No one can ever file a petition based on newly-discovered evidence and a void marriage can be ratified on the basis of res judicata, specifically because of Mallion?
6. The existence of a judicial declaration of a void marriage is not a defense to bigamy if the ground is any other than the absence of a marriage ceremony?"

BIGAMY. - July 2013 Philippine Supreme Court Decisions on Criminal Law and Procedure | LEXOTERICA: A PHILIPPINE BLAWG

See - July 2013 Philippine Supreme Court Decisions on Criminal Law and Procedure | LEXOTERICA: A PHILIPPINE BLAWG





"x x x.

Bigamy; elements. The elements of the crime of bigamy are: (1) the offender has been legally married; (2) the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he contracts a second or subsequent marriage; and (4) that the second or subsequent marriage has all the essential requisites for validity. James Walter P. Capili v. People of the Philippines, G.R. No. 183805, July 3, 2013.

Bigamy; bigamy committed even if second marriage is subsequently declared void. In the present case, it appears that all the elements of the crime of bigamy were present when the Information was filed on June 28, 2004. It is undisputed that a second marriage between petitioner and private respondent was contracted on December 8, 1999, during the subsistence of a valid first marriage. Notably, the Regional Trial Court of Antipolo City itself declared the bigamous nature of the second marriage between petitioner and private respondent. Thus, the subsequent judicial declaration of nullity of the second marriage for being bigamous does not bar the prosecution of petitioner for the crime of bigamy. Jurisprudence is replete with cases holding that the accused may still be charged with the crime of bigamy, even if there is a subsequent declaration of the nullity of the second marriage, so long as the first marriage was still subsisting when the second marriage was celebrated. Finally, it is a settled rule that the criminal culpability attaches to the offender upon the commission of the offense, and from that instant, liability appends to him until extinguished as provided by law. It is clear then that the crime of bigamy was committed by petitioner from the time he contracted the second marriage with private respondent. Thus, the finality of the judicial declaration of nullity of petitioner’s second marriage does not impede the filing of a criminal charge for bigamy against him. James Walter P. Capili v. People of the Philippines, G.R. No. 183805, July 3, 2013.

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Bigamy; foreign divorce secured by alien; nationality principle in family law.

See - G. R. No. 183622





"x x x.

Second, it is imperative to note that at the time the bigamy case in Crim. Case No. 2699-A was dismissed, we had already ruled that under the principles of comity, our jurisdiction recognizes a valid divorce obtained by a spouse of foreign nationality. This doctrine was established as early as 1985 in Van Dorn v. Romillo, Jr.[7] wherein we said:

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces[,] the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. xxx

 We reiterated this principle in Llorente v. Court of Appeals,[8] to wit:

In Van Dorn v. Romillo, Jr. we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law.

Citing this landmark case, the Court held in Quita v. Court of Appeals, that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable and petitioner could “very well lose her right to inherit” from him.  

In Pilapil v. Ibay-Somera, we recognized the divorce obtained by the respondent in his country, the Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons.

For failing to apply these doctrines, the decision of the Court of Appeals must be reversed. We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of comity. xxx

Nonetheless, the fact of divorce must still first be proven as we have enunciated in Garcia v. Recio,[9] to wit:

Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence. A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself. The decree purports to be a written act or record of an act of an official body or tribunal of a foreign country.

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.

The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian family court. However, appearance is not sufficient; compliance with the aforementioned rules on evidence must be demonstrated.

Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry of Cabanatuan City. The trial court ruled that it was admissible, subject to petitioner's qualification. Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer bound by Philippine personal laws after he acquired Australian citizenship in 1992. Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights belonging to a citizen. Naturalized citizens, freed from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the divorce decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly known by Philippine courts; thus, judges may take judicial notice of foreign laws in the exercise of sound discretion.

We are not persuaded. The burden of proof lies with the “party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action.” In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters. Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him.

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.(Emphasis supplied)

It appears that the trial court no longer required petitioner to prove the validity of Orlando’s divorce under the laws of the United States and the marriage between petitioner and the deceased. Thus, there is a need to remand the proceedings to the trial court for further reception of evidence to establish the fact of divorce.

Should petitioner prove the validity of the divorce and the subsequent marriage, she has the preferential right to be issued the letters of administration over the estate. Otherwise, letters of administration may be issued to respondent, who is undisputedly the daughter or next of kin of the deceased, in accordance with Sec. 6 of Rule 78 of the Revised Rules of Court.

This is consistent with our ruling in San Luis v. San Luis,[10] in which we said:

Applying the above doctrine in the instant case, the divorce decree allegedly obtained by Merry Lee which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal personality to file the present petition as Felicisimo's surviving spouse. However, the records show that there is insufficient evidence to prove the validity of the divorce obtained by Merry Lee as well as the marriage of respondent and Felicisimo under the laws of the U.S.A. In Garcia v. Recio, the Court laid down the specific guidelines for pleading and proving foreign law and divorce judgments. It held that presentation solely of the divorce decree is insufficient and that proof of its authenticity and due execution must be presented. Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.

With regard to respondent's marriage to Felicisimo allegedly solemnized in California, U.S.A., she submitted photocopies of the Marriage Certificate and the annotated text of the Family Law Act of California which purportedly show that their marriage was done in accordance with the said law. As stated in Garcia, however, the Court cannot take judicial notice of foreign laws as they must be alleged and proved.

Therefore, this case should be remanded to the trial court for further reception of evidence on the divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo. (Emphasis supplied)

Thus, it is imperative for the trial court to first determine the validity of the divorce to ascertain the rightful party to be issued the letters of administration over the estate of Orlando B. Catalan.

x x x."

See - 

MEROPE ENRIQUEZ VDA. DE CATALAN,                                         Petitioner,                          - versus - LOUELLA A. CATALAN-LEE,                                     Respondent.

G. R. No. 183622 Present: CARPIO, J., Chairperson, BRION, PEREZ, SERENO, and REYES, JJ. Promulgated:  February 8, 2012

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January 2014 Philippine Supreme Court Decisions on Tax Law | LEXOTERICA: A PHILIPPINE BLAWG

See - January 2014 Philippine Supreme Court Decisions on Tax Law | LEXOTERICA: A PHILIPPINE BLAWG





"x x x.

Court of Tax Appeals; findings of fact. The Court will not lightly set aside the conclusions reached by the CTA which, by the very nature of its function of being dedicated exclusively to the resolution of tax problems, has accordingly developed an expertise on the subject, unless there has been an abuse or improvident exercise of authority. Factual findings made by the CTA can only be disturbed on appeal if they are supp1ied by substantial evidence or there is a showing of gross error or abuse on the part of the CTA. In the absence of any clear and convincing proof to the contrary, the Court must presume that the CTA rendered a decision which is valid in every respect. Commissioner of Internal Revenue v. Toledo, Power, Inc., G.R. No. 183880, January 20, 2014.

Refund; solutio indebiti; elements. There is solutio indebiti when: (1) Payment is made when there exists no binding relation between the payor, who has no duty to pay, and the person who received the payment; and (2) Payment is made through mistake, and not through liberality or some other cause. Solutio indebiti does not apply in this case because there exists a binding relation between petitioner and the CIR, the former being a taxpayer obligated to pay VAT and the payment of input tax was not made through mistake since petitioner was legally obligated to pay for that liability. The entitlement to a refund or credit of excess input tax is solely based on the distinctive nature of the VAT system. At the time of payment of the input VAT, the amount paid was correct and proper. CBK Power Company Limited vs. Commissioner of Internal Revenue, G.R. No. 198729-30, January 15, 2014.

Value-added tax; refund of input value-added tax;; prescriptive period for judicial and administrative claims. Under Section 112 of the National Internal Revenue Code (NIRC), it is only the administrative claim for refund of input value-added tax (VAT) that must be filed within the two-year prescriptive period; the judicial claim need not fall within the two-year prescriptive period. Subsection (A) of the said provision states that “any VAT-registered person whose sales are zero-rated may, within two years after the close of the taxable quarter when the sales were made, apply for the issuance of a tax credit certificate or refund of creditable input tax due or paid attributable to such sales.” The phrase “within two (2) years x x x apply for the issuance of a tax credit certificate or refund” refers to applications for refund/credit filed with the Commissioner of Internal Revenue (CIR) and not to appeals made to the Court of Tax Appeals (CTA). This is apparent in the first paragraph of subsection (D) of the same provision which states that the CIR has “120 days from the submission of complete documents in support of the application filed in accordance with Subsections (A) and (B)” within which to decide on the claim. Commissioner of Internal Revenue vs. Mindanao II Geothermal Partnership, G.R. No. 191498, January 15, 2014.

Value-added tax; refund of input value-added tax; prescriptive period; reckoning point for two-year prescriptive period. The doctrine in the case of Atlas Consolidated Mining and Development Corporation vs. Commissioner of Internal Revenue, which held that claims for refund or credit of input VAT must comply with the two-year prescriptive period under Section 229, should be effective only from its promulgation on June 8, 2007 until its abandonment on September 12, 2008 in the case of Commissioner of Internal Revenue vs. Mirant Pagbilao Corporation. The Atlas doctrine was limited to the reckoning of the two-year prescriptive period from the date of payment of the output VAT. Prior to the Atlasdoctrine, the two-year prescriptive period for claiming refund or credit of input VAT should be governed by Section 112(A) following the verba legis rule. TheMirant ruling, which abandoned the Atlas doctrine, adopted the verba legis rule, thus applying Section 112(A) in computing the two-year prescriptive period in claiming refund or credit of input VAT. In this case, the claim for refund was filed on October 6, 2005. Thus, it is covered by the rule prior to the advent of eitherAtlas or Mirant. Therefore, the proper reckoning date as provided in Section 112(A) of the NIRC is the close of the taxable quarter when the relevant sales were made. Commissioner of Internal Revenue vs. Mindanao II Geothermal Partnership, G.R. No. 191498, January 15, 2014.

Value-added tax; refund of input value-added tax; prescriptive period; 30-day period also applies to appeals from inaction. Section 112(D) of the NIRC speaks of two periods: the period of 120 days, which serves as a waiting period to give time for the CIR to act on the administrative claim for refund or credit, and the period of 30 days, which refers to the period for interposing an appeal with the CTA. The 30 day period applies not only to instances of actual denial by the CIR of the claim for refund or tax credit, but to cases of inaction by the CIR as well. The taxpayer can file the appeal in one of two ways: (1) file the judicial claim within thirty days after the Commissioner denies the claim within the 120-day period, or (2) filed the judicial claim within thirty days from the expiration of the 120-day period if the Commissioner does not act within the 120-day period.Commissioner of Internal Revenue vs. Mindanao II Geothermal Partnership, G.R. No. 191498, January 15, 2014.

Value-added tax; refund of input value-added tax; prescriptive period; 30-day period to appeal is mandatory and jurisdictional; exception. The 30-day period to appeal to the CTA, as provided in the case of Commissioner of Internal Revenue vs. San Roque Power Corporation, is both mandatory and jurisdictional. The law states that a taxpayer affected may, within thirty (30) days from the receipt of the decision denying the claim or after the expiration of the one hundred twenty day period, appeal the decision or the unacted claim with the CTA. However, there is an exception to this rule. Bureau of Internal Revenue (BIR) Ruling No. DA-489-03 dated December 10, 2003 declared that a taxpayer-claimant need not wait for the lapse of the 120-day period before it could seek judicial relief with the CTA by way of petition for review. Thus, in cases of premature filing, taxpayers can rely on the BIR ruling from the time of its issuance, December 10, 2003 until its reversal by the Supreme Court on October 6, 2010, when the 120+30 day periods were held to be mandatory and jurisdictional. However, late filing is absolutely prohibited even during the time when the BIR ruling was in force. Commissioner of Internal Revenue vs. Mindanao II Geothermal Partnership, G.R. No. 191498, January 15, 2014.

Value-added tax; refund of input value-added tax; prescriptive period; administrative claim.  The value-added tax (VAT) law provides for a mechanism that would allow VAT-registered persons to recover the excess input taxes over the output taxes they had paid in relation to their sales. For the refund or credit of excess or unutilized input tax, Section 112 of the National Internal Revenue Code (NIRC) is the governing law. Given the distinctive nature of creditable input tax, the law under Section 112(A) provides for a different reckoning point for the two-year prescriptive period, specifically for the refund or credit of that tax only. Section 112(A) is clear that for VAT-registered persons whose sales are zero-rated or effectively zero-rated, a claim for the refund or credit of creditable input tax that is due or paid, and that is attributable to zero-rated or effectively zero-rated sales, must be filed within two years after the close of the taxable quarter when such sales were made. The reckoning frame would always be the end of the quarter when the pertinent sale or transactions were made, regardless of when the input VAT was paid. CBK Power Company Limited vs. Commissioner of Internal Revenue, G.R. No. 198729-30, January 15, 2014.

Value-added tax; refund of input value-added tax; prescriptive period; judicial claim. Section 112(D) of the NIRC provides that the Commissioner of Internal Revenue (CIR) has to decide on an administrative claim within one hundred twenty (120) days from the date of submission of complete documents in support thereof. Thereafter, the taxpayer may appeal within 30 days from the receipt of the decision or from the expiration of the 120-day period within which the claim has not been acted upon. Given that the 30-day period to appeal to the Court of Tax Appeals (CTA) is dependent on the 120-day period, compliance with both periods is jurisdictional. The period of 120 days is a prerequisite for the commencement of the 30-day period to appeal to the CTA. CBK Power Company Limited vs. Commissioner of Internal Revenue, G.R. No. 198729-30, January 15, 2014.

Value-added tax; refund of input value-added tax; prescriptive period; judicial claim; reckoning point of the prescriptive period. The taxpayer can file his administrative claim for refund or issuance of tax credit certificate anytime within the two-year prescriptive period. If he files his claim on the last day of the two-year prescriptive period, his claim is still filed on time. The Commissioner of Internal Revenue (CIR) will then have 120 days from such filing to decide the claim. If the CIR decides the claim on the 120th day or does not decide it on that day, the taxpayer still has 30 days to file his judicial claim with the Court of Tax Appeals (CTA). In other words, the taxpayer may “within thirty (30) days from receipt of the decision denying the claim or after the expiration of the one hundred twenty day period, appeal the decision or the unacted claim with the [CTA].” Team Energy Corporation (formerly Mirant Pagbilao Corp.) vs. Commissioner of Internal Revenue, G.R. No. 190928, January 13, 2014.

Value-added tax; refund of input value-added tax; prescriptive period; judicial claim; reckoning point of the prescriptive period. The taxpayer can file his administrative claim for refund or issuance of tax credit certificate anytime within the two-year prescriptive period. If he files his claim on the last day of the two-year prescriptive period, his claim is still filed on time. The Commissioner of Internal Revenue (CIR) will then have 120 days from such filing to decide the claim. If the CIR decides the claim on the 120th day or does not decide it on that day, the taxpayer still has 30 days to file his judicial claim with the Court of Tax Appeals (CTA). In other words, the taxpayer may “within thirty (30) days from receipt of the decision denying the claim or after the expiration of the one hundred twenty day period, appeal the decision or the unacted claim with the [CTA].” Team Energy Corporation (formerly Mirant Pagbilao Corp.) vs. Commissioner of Internal Revenue, G.R. No. 190928, January 13, 2014.

Value-added tax; refund of input value-added tax; prescriptive period; judicial claim; reckoning point of the prescriptive period. A VAT-registered taxpayer claiming for refund or tax credit of their excess and unutilized input VAT must file their administrative claim within two years from the close of the taxable quarter when the sales were made. After that, the taxpayer must await the decision or ruling of denial of its claim, whether full or partial, or the expiration of the 120-day period from the submission of complete documents in support of such claim. Once the taxpayer receives the decision or ruling of denial or expiration of the 120-day period, it may file its petition for review with the CTA within thirty (30) days. The 120-30-day period in Section 112(C) of the NIRC is mandatory and its non-observance is fatal to the filing of a judicial claim with the CTA. In the Aichicase, the Court explained that if after the 120-day mandatory period, the CIR fails to act on the application for tax refund or credit, the remedy of the taxpayer is to appeal the inaction of the CIR to the CTA within thirty (30) days. The judicial claim, therefore, need not be filed within the two-year prescriptive period from the close of the taxable quarter but has to be filed within the required 30-day period after the expiration of the 120 day period. Team Energy Corporation (formerly Mirant Pagbilao Corp.) vs. Commissioner of Internal Revenue, G.R. No. 190928, January 13, 2014.

Value-added tax; refund of input value-added tax; prescriptive period; judicial claim; reckoning point of the prescriptive period; exception. The mandatory and jurisdictional nature of the 120+30-day rule does not apply on claims for refund that were prematurely filed during the interim period from the issuance of BIR Ruling No. DA-489-03 on December 10, 2003 to October 6, 2010 when the Aichidoctrine was adopted. The exemption was premised on the fact that prior to the promulgation of the Aichi decision, there was an existing interpretation laid down in BIR Ruling No. DA-489-03 where the BIR expressly ruled that the taxpayer need not wait for the expiration of the 120-day period before it could seek judicial relief with the CTA. Since the CIR has exclusive and original jurisdiction to interpret tax laws, taxpayers acting in good faith should not be made to suffer for adhering to general interpretative rules of the CIR interpreting tax laws, should such interpretation later turn out to be erroneous and be reversed by the CIR or the Court. Indeed, Section 246 of the NIRC expressly provides that a reversal of a BIR regulation or ruling cannot adversely prejudice a taxpayer who, in good faith, relied on the BIR regulation or ruling prior to its reversal. BIR Ruling No. DA-489-03 is a general interpretative rule because it is a response to a query made, not by a particular taxpayer, but by a government agency tasked with processing tax refunds and credits, that is, the One Stop Shop Inter-Agency Tax Credit and Drawback Center of the Department of Finance. This government agency is also the addressee, or the entity responded to, in BIR Ruling No. DA-489-03. Thus, while this government agency mentions in its query to the CIR the administrative claim of Lazi Bay Resources Development, Inc., the agency was, in fact, asking the CIR what to do in cases like the tax claim of Lazi Bay Resources Development, Inc., where the taxpayer did not wait for the lapse of the 120-day period. Team Energy Corporation (formerly Mirant Pagbilao Corp.) vs. Commissioner of Internal Revenue,G.R. No. 190928, January 13, 2014.

Value-added tax; refund of input value-added tax; prescriptive period; exception. The 120+30 day period is mandatory because the law is clear and unequivocal. Section 112 of the NIRC decrees that a VAT-registered person, whose sales are zero-rated or effectively zero-rated, may apply for the issuance of a tax credit or refund creditable input tax due or paid attributable to such sales within two years after the close of the taxable quarter when the sales were made. From the date of submission of complete documents in support of its application, the CIR has 120 days to decide whether or not to grant the claim for refund or issuance of tax credit certificate. In case of full or partial denial of the claim for tax refund or tax credit, or the failure on the part of the CIR to act on the application within the given period, the taxpayer may, within 30 days from receipt of the decision denying the claim or after the expiration of the 120-day period, appeal with the  CTA the decision or inaction of the CIR. This rule, however, is not without exception, Strict compliance with the 120+30day periods is not necessary when the judicial claims are filed between December 10, 2003 (issuance of BIR Ruling No. DA-489-03 which states that the taxpayer need not wait for the 120-day period to expire before it could seek judicial relief) to October 6, 2010 (promulgation of the Aichi doctrine which declared that the 120-+30 day periods are mandatory) All taxpayers, therefore, can rely on BIR Ruling No. DA-489-03 from the time of its issuance on December 10, 2003 up to its reversal by the Court in Aichi on October 6, 2010, as an exception to the mandatory and jurisdictional 120+30 day periods. Commissioner of Internal Revenue v. Toledo, Power, Inc., G.R. No. 183880, January 20, 2014.

Value-added tax; refund of input value-added tax; prescriptive period; rules on the determination of the prescriptive period for filing. In a nutshell, the rules on the determination of the prescriptive period for filing a tax refund or credit of unutilized input VAT, as provided in Section 112 of the NIRC, are as follows: (1)An administrative claim must be filed with the CIR within two years after the close of the taxable quarter when the zero-rated or effectively zero-rated sales were made (2)The CIR has 120 days from the date of submission of complete documents in support of the administrative claim within which to decide whether to grant a refund or issue a tax credit certificate. The 120-day period may extend beyond the two-year period from the filing of the administrative claim if the claim is filed in the later part of the two-year period. If the 120-day period expires without any decision from the CIR, then the administrative claim may be considered to be denied by inaction (3) A judicial claim must be filed with the CTA within 30 days from the receipt of the CIR’s decision denying the administrative claim or from the expiration of the 120-day period without any action from the CIR (4) All taxpayers, however, can rely on BIR Ruling No. DA-489-03 from the time of its issuance on 10 December 2003 up to its reversal by this Court in Aichi on 6 October 2010, as an exception to the mandatory and jurisdictional 120+30 day periods. Commissioner of Internal Revenue v. Toledo, Power, Inc., G.R. No. 183880, January 20, 2014.

Value-added tax; refund of input value-added tax; invoicing requirements. The words “zero-rated” must appear in the invoice covering zero-rated sales. Although the same was merely stamped and not pre-printed in the present case, the same is sufficient compliance with the law, since the imprinting of the word “zero-rated” was required merely to distinguish sales subject to 10% VAT, those that are subject to 0% VAT (zero-rated) and exempt sales, to enable the Bureau of Internal Revenue to properly implement and enforce the other VAT provisions of the Tax Code. Commissioner of Internal Revenue v. Toledo, Power, Inc., G.R. No. 183880, January 20, 2014.

x x x."