ZOSIMO ROJAS & BROS., PLAINTIFF-APPELLANT VS. CITY OF CAVITE, ET AL., DEFENDANT-APPELLEES.

Appeal from a judgment of the Court of First Instance of Cavite, Hon.
Primitive L. Gonzales, presiding, dismissing an action filed by
plaintiff-appellant seeking to recover the sum of P88,177.63 collected by the
defendant-appellee as municipal amusement taxes during the years 1948 to 1954,
inclusive.

The taxes sought to be refunded were collected under and by virtue of
Ordinance No. 29, sections 227 to 230 of the City of Cavite, approved on
December 12, 1946, consisting of the following P0.05 for every balcony admission
ticket sold and P0.03 for every general admission ticket. The City of Cavite had
also been collecting under its ordinance a license tax of P800.00 per annum or
P70.00 per month from proprietors of theatres under Sections 221 to 222 of the
city ordinance and amusement taxes of from P0.02 to P0.10, according to the
value of the tickets sold under Section 260 of the National Internal Revenue
Code, although these two forms of taxes are not subject to question. It is
alleged in the complaint that the taxes in question were paid under protest
verbally and/or in writing; that the collection of said taxes are not expressly
authorized in the Charter of said City; and that the provisions of the ordinance
under which the same are collected are unconstitutional.

The defendant in its answer expressly denied that the taxes were paid “under
protest verbally and/or in writing,” and alleged that it was only in the year
1954 that the payment of the taxes for the months of September and October, 1954
was made under protest; that the amounts collected under the ordinance as taxes
on the tickets come from cinemagoers, the plaintiff merely acting as agent for
the collection of the same. In answer to the claim that the taxes are not
expressly authorized and that the ordinance is unconstitutional, the defendant
alleges that the collection of the same is authorized by the City Charter and
that the collection thereof is in no sense objectionable.

Under the above issues the parties went to trial, and thereafter the court
rendered decision dismissing the action. The court, however, did not pass upon
all the issues of fact raised in the pleadings, but only on the legal issue as
to whether or not the ordinance under which the taxes were collected was within
the power of the municipal council of Cavite to enact, the court holding that
the enactment of said ordinance was authorized under the City Charter which
grants the said City the legislative power to (a) provide for the levy and
collection of taxes for general and special purposes, and (b) regulate and fix
the amount of license fees for the operation of theatres and cinematographs and
other places of amusement

On this appeal reliance is placed by plaintiff-appellant on the decision we
have rendered in the case of Icard vs. The City of Baguio, G. R. No. L-1281,
promulgated May 31, 1949. It is argued by the plaintiff-appellant that the
decision was promulgated under provisions of the charter of the City of Baguio
similar to those of the Cavite City Charter, as follows:

	Cavite City Charter	Baguio City Charter
	Sec. 15. (a) “To provide for the levy and collection of taxes for general and special purposes in accordance with law including specifically the power to levy real property tax not to exceed two per centum ad valorem.”	Sec. 2553. (b) Rev. Adm. Code.- “To provide for the levy and collection of taxes and other city revenues, as provided by law and apply the same to the payment of municipal expenses in accordance wit It appropriations.”
	Sec. 2553 (c) before the amendment- “(c) To issue licenses fixing the amount of the license fee for the following x x x theaters, theatrical performances and all other performances and places of amusements X X X.”	Sec. 2553 (c) as amended by Republic Act 329 – “(c) To tax, fix the license and regulate the business of the following “x x x theaters x x x theatrical performances x x x.”

The defendants-appellees do not question the applicability of the decision
cited to the case at bar. We find that the provisions of the Charter of the City
of Cavite under which the additional amusement tax of P0.03 and P0.05 per ticket
was collected, are similar to those of the Charter of the City of Baguio under
which the taxes sought to be recovered in Icard vs. The City of Baguio, supra,
were collected. Section 15(a) of the City Charter of Cavite does not authorize
the imposition of the P0.03 and P0.05 additional tax; it only authorizes the
levy and collection of taxes “in accordance with law;” so for the authority to
impose the additional tax of P0.05 and P0.03 recourse must be had to the other
provisions of the Charter. There is no such provision which grants the
authority. Paragraph (n), Section 15, of the Charter (of Cavite City) which
authorizes the City to regulate and fix the amount of license fees for the
operators of cinematographs and other places of amusement,is merely regulatory
fixing the amount of license fees for theatres. This is authority for Sections
221 to 222 of the ordinance of the City of Cavite, which impose a license fee of
P800.00 per annum on proprietors of theatres. But an authority to collect the
additional P0.03 and P0.05 tax on tickets cannot be inferred or implied from
this provision. The P0.03 and P0.05 tax on admission tickets is a tax and not a
license fee, a tax being an assessment against property or business, whereas a
license fee is collected for the purpose of regulation. (Cooley on Taxation,
Vol. 1, 4th ed., p. 110; Calalang vs. Lorenzo, et al., G.R. No. L-6961, June
17, 1955, 51 O.G. [6] 2859.) We, therefore, find that the claim of the
plaintiff-appellant that the collection of the tax of P0.03 and P0.05 per
admission ticket imposed by the ordinance of the City of Cavite is beyond the
power granted to the said City in its Charter and the collection of said tax is,
therefore, illegal and void.

As we have heretofore indicated, defendant-appellee does not dispute the
claim of plaintiff-appellant that the ordinance imposing the tax of P0.03 and
P0.05 per admission ticket is beyond the power granted the City of Cavite. But
reliance is placed on the claim that the paymer of the said tax has been
voluntary until the collection of taxes for September and October, 1954. It is,
however, unnecessary to consider this defense because the other defense is
determinative of the action.

With respect to the defense raised to the effect that the taxes collected
came from cinemagoers and not from the plaintiff, counsel for
plaintiff-appellant argues that the taxes came from the plaintiff and not from
the public patronizing the theatres, because the ordinance requires that the
said taxes should be paid by the “proprietor, lessee or operator of theatre,” It
is also argued that when the taxes were imposed the prices for admission were
reduced. While it is true that the plaintiff-appellant is the one that paid the
taxes the evidence submitted at the trial shows that said taxes were charged by
the plaintiff-appellant against the cinemagoers. This is borne out by the
admission tickets that the plaintiff-appellant issued to theatre goers,
thus:

“REPUBLIC OF THE PHILIPPINES
CAVITE CITY OFFICE OF THE
TREASURER

December 8, 1955

TO WHOM IT MAY CONCERN:

This is to certify that the following are the true copies of the balcony and
general ad mission tickets sold to cinemagoers of Perla theatre.

PERLA THEATRE
Cavite City
P0.80 Balcony P0.80
Inc. Tax
Admit One Inc. Tax
Good for Today only
262001 262001

PERLA THEATRE
Cavite City
P0.40 Gen. Adm. P0.40
Inc.
Tax Admit One Inc. Tax
Good for Today only
599001 599001

G. BUSTAMANTE
City Treasurer

By:
RICARDO IÑOLA
Chief Collection
Division”

It may be true, as the evidence for the plaintiff seems to indicate, that
when the taxes were collected the prices for admission were reduced. The
reduction, however was not made in order that the cinemagoers be relieved from
the obligation of paying the tax. Notwithstanding the reduction in the price for
admission, the plaintiff-appellant continued collecting the tax from the
cinema-goers as proved by the tickets that plaintiff-appellant himself issued.
The reduction was made in the admission tickets for election purposes, to
impress upon the public that the plaintiff-appellant was waiving a portion of
the price of the tickets for the public benefit. The claim of the
plaintiff-appellant that the taxes were paid with plaintiff-appellant’s own
money is, therefore, not supported by the evidence.

It is also argued on behalf of the plaintiff-appellant that even if the taxes
collected belong to the cinemagoers the city is merely a trustee thereof.
Admitting for the sake of argument that because of the illegality of the tax the
City has become a mere trustee, it does not necessarily follow that
plaintiff-appellant by the mere circumstance that it collected said taxes for
and on behalf of the City, thereby acquires the right to recover the same from
the City. Plaintiff-appellant is not the owner of the taxes collected by the
City, so he has no right to bring an action for the refund thereof. Without
pursuing the argument further on this issue, suffice it for Us to state that in
a similar case, We have decided that the person who collects the tax, which is
illegal, and pays it to a city, has no right to bring an action to recover said
tax from the city for said right belongs to the taxpayers themselves. To such
effect was our holding in the case of Medina, et al. vs. City of Baguio, G. R.
No. L-4060, Aug. 29, 1952, 48 0, G. (3) 4769:

“It is evident that the amusement tax was paid by the public thru the manager
of the plaintiff acting as agent of the government, therefore the amusement tax
paid to the government is not the property of the plaintiff, and if anybody has
the right to claim it is the public who paid it and not the plaintiff. If
anybody has a right to claim it, it is those who paid it. Only owner of the
property has the right to claim said property.”

Resuming what We have stated above, We hereby find that while the taxes
sought to be recovered have been collected under an invalid ordinance, for the
reason that the City of Cavite had no authority to enact the same,
plaintiff-appellant is without right to recover the taxes from the City, as such
right belongs to the cinema-goers or public that had paid the same.

Wherefore, the judgment appealed from is hereby affirmed, although on other
grounds. Costs against the plaintiff-appellant. So ordered.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Concepcion,
Reyes, J.B.L., Endencia, and Felix, JJ., concur.