The Manila Times
NO HOLDS BARRED
Rep. Edcel C. Lagman’s
Weekly Thursday Column
THERE is much misinformation and disinformation from both contending sides regarding the petition to deny due course or cancel the certificate of candidacy for president of Ferdinand “Bongbong” Marcos, Jr. for falsely representing his eligibility despite his final conviction for tax offenses. The petition is effectively to disqualify him.
To clarify the relevant issues, hereunder is the full dispositive portion of the October 31, 1997 decision of the Court of Appeals (CA) in “People of the Philippines vs. Ferdinand R. Marcos, Jr. (CA-G.R. CR No. 18569), which decision is a principal anchor of the petition:
“WHEREFORE, the Decision of the trial court is hereby MODIFIED as follows:
1. ACQUITING the Accused-Appellant [Marcos, Jr.] of the charges of violation of Section 50 of the NIRC [National Internal Revenue Code] for non-payment of deficiency taxes for the taxable years 1982 to 1985 in Criminal Cases Nos. Q-92-29216, Q-92-29215, Q-92-29214 and Q-91-24390; and FINDING him guilty beyond reasonable doubt of violation of Section 45 of the NIRC for failure to file income tax returns for the taxable years 1982 to 1985 in Criminal Cases Nos. Q-91-24391, Q-92-29212, Q-92-29213 and Q-92-29217;
“2. Ordering the appellant to pay to the BIR the deficiency income taxes due with interest at the legal rate until fully paid;
“3. Ordering the appellant to pay a fine of P2,000.00 for each charge in Criminal Cases Nos. Q-92-29213, Q-92-29212 and Q-92-29217 for failure to file income tax returns for the years 1982, 1983 and 1984; and the fine of P30,000.00 in Criminal Case No. Q-91-24391 for failure to file income tax return for 1985, with surcharges.”
Consequently, the following are explicit:
Firstly, Marcos, Jr. was acquitted of non-payment of deficiency taxes from 1982 to 1985 when he was vice governor and later governor of Ilocos Norte. He was prosecuted for failure to pay deficiency taxes because, except in 1982, his salary was subjected to automatic withholding tax. The CA exonerated him because his prosecution and conviction were purportedly premature, which deprived him of due process, since the notices of deficiency tax assessment were not properly served on him as he was in Hawaii (where he fled with his family after the popular uprising that ousted his dictator father).
Although the acquittal is now final, there are apparent errors in the CA decision: a) Marcos, Jr. should have been convicted of tax evasion for not paying his 1982 income tax when no tax was withheld from him as found by the CA itself; and b) since Marcos, Jr. did not file his ITRs from 1982 to 1985, the CA noted that notices of deficiency taxes were not necessary under Section 319 of the tax code which provides that “a proceeding in court for the collection of such tax may be begun without assessment.” Consequently, his prosecution and conviction were valid and seasonable even without his having received the notices of deficiency tax assessment which were not mandatory.
Secondly, Marcos, Jr. was convicted of failure to file the mandatory ITRs from 1982 to 1985 since he “was not able to prove otherwise.” The CA deleted imprisonment and only penalized him with the fines alternatively imposable under the NIRC.
This conviction became final when Marcos, Jr. abandoned his appeal with the Supreme Court, possibly fearing that the high court could reinstate the prison term imposed by the trial court. The imposition of fine only is sufficient conviction to warrant his perpetual disqualification from holding public office under the NIRC which does not distinguish whether the sentence is fine or imprisonment, or both.
Marcos, Jr.’s failure to file his ITR for four taxable years amounted to tax evasion because he effectively did not pay his income tax or the correct amount of tax. The government’s withholding of his tax did not relieve him from filing his ITRs because he had other sources of income to report in addition to his salary. Per his instruction, “all of his salaries” were deposited in a bank for a “scholarship foundation for the poor”. Clearly, he had other sources of income to fund his lavish lifestyle and other expenses. He did not disclose such other taxable income as he failed to file his ITRs. Moreover, he had to file his ITRs because the taxes withheld for him were insufficient, and his gross salary exceeded his personal exemption.
The non-filing of ITR is a convenient mode of tax evasion. Since failure to file an ITR amounts to tax evasion, the same penalties are imposed for both offenses by “a fine of not more than two thousand pesos or by imprisonment of not more than six months, or both” under Sec. 73 of the 1977 NIRC, which was increased to a fine of “not less than five thousand pesos nor more than fifty thousand pesos or imprisonment for not less than six months and one day but not more than five years, or both” under Sec. 228, as amended by PD 1994, starting taxable year 1985.
Verily, the conviction of Marcos, Jr. for failure to file his ITRs ipso facto perpetually disqualifies him from “holding public office, to vote and to participate in any election” (Section 228[c] of the 1977 NIRC). This accessory penalty for any person “convicted of a crime penalized” under the NIRC attaches to the principal penalty and is automatically imposed by operation of law.
Marcos, Jr. is also disqualified from holding public office under Section 12 of the Omnibus Election Code because his conviction of repeated and willful failure to file his ITR, compounded by his holding then an elected public office which demanded a higher civic and moral duty to obey the laws, is an offense impressed with moral turpitude. A disquisition on this issue requires another column.
Even if the subject petition does not prosper, which is far-fetched because the grounds for Marcos, Jr.’s disqualification are indubitable, his conviction for tax offenses reveals his lack of integrity and moral uprightness which should impel the electorate to reject him in 2022.