DY PAC & COMPANY, INC., PETITIONER, VS. COURT OF TAX APPEALS AND COMMISSIONER OF INTERNAL REVENUE, RESPONDENTS.

“On July 5, 1968, petitioner filed the instant petition for
review.”

The pertinent provisions of Sections 7 and 11 of Rep. Act 1125
are hereunder quoted:

“SEC. 7. 
JURISDICTION.  – The Court of Tax
Appeals shall exercise exclusive appellate jurisdiction to review by appeal, as
herein provided —

“(1)  Decisions of the Commissioner of Internal Revenue in cases involving
disputed assessments, refunds of internal revenue taxes, fees or other charges,
penalties imposed in relation thereto, or other matters arising under the
National Internal Revenue Code or other law or part of law administered by the
Bureau of Internal Revenue;

“x x x

“SEC. 11.  WHO MAY
APPEAL; EFFECT OF APPEAL.  – Any person,
association or corporation adversely affected by a decision or ruling
of the Commissioner of Internal Revenue, the Commissioner of Customs or any
provincial or city Board of Assessment Appeals may file an appeal in the Court
of Tax Appeals within thirty days after the receipt of such decision or
ruling.” (Under­scoring supplied)

There is no debate that the petitioner’s case is covered by
Section 7 of Republic Act 1125 and, therefore, comes within the jurisdiction of
the respondent court.  But was said
jurisdiction invoked by the petitioner within the period prescribed by Section
11?  The central question is:  which was the appealable decision of the
Commissioner, the letter dated October 18, 1967 which was received by the
petitioner on November 7, 1967, as the res­pondents contend, or the letter of
May 23, 1968 which was received by the petitioner on June 5, 1968, as the
petitioner insists?  If the latter, then
the petition for review filed with the respondent court on July 5, 1968 was
timely; if not, the assessment had become final and executory.

We hold that the point from which the period to appeal should be
counted is the receipt by the petitioner on November 7, 1967 of the
letter dated October 18, 1967 of the respondent Commissioner.

Paragraph 1, Section 11 of Republic Act No. 1125, in express
terms, allows appeal from the “decision or ruling of the Commissioner of
Internal Revenue.” The word “decision” has been interpreted to
mean decisions of the Commissioner of Internal Revenue on protests
of taxpayers against assessments.^[1]
And, in computing the 30-day period for appeal to the Tax Court, counting should begin from the date of
receipt of the decision of the Commissioner on the disputed assessment.^[2]
However, where several re­quests for reconsideration have been filed with the
Commissioner, it would appear that the communica­tion from the latter
overruling taxpayer’s request for reconsideration and affirming the disputed
assess­ment in terms clearly indicating finality of the action taken, constitutes the appealable decision
or ruling.^[3]

Considering the substance of the letter of the respondent
Commissioner of October 18, 1967, it is evident that the said letter
constitutes his “decision;” it has the unmistakable tenor of finality
that would make it the appealable decision or ruling under Sections 7 and 11 of
Republic Act No. 1125.  The letter of
October 18, 1967, in clear and un­equivocal terms, states:”

“…I have the
honor to inform you that after a careful consideration of the facts of the
instant case, as well as the law and jurisprudence applicable thereto, this
Office has decided to deny your request for the withdrawal and
cancellation of the aforementioned assessment.

“x x x x

“In view of the foregoing, you are hereby requested for the last
time to pay the aforesaid sum of P139,641.25 within thirty (30) days from
receipt hereof.  Otherwise collection
thereof will be enforced thru the remedies prescribed by law, without further
notice.

“Failure on your part to settle the tax account within the
abovestated period will also constrain this Office to recommend the criminal
prosecution of your President and/or other responsi­ble officers for the
enforcement of the penal sanctions of the Revenue Code.” (Underscoring
supplied)

The respondent
Commissioner himself considered the said letter as his “decision”
that is final, hence his request for payment for the “last time.”
Prior to his letter-decision of October 18, 1967, the Commissioner must have
considered his prior actions as tentative in character, pending his final
resolution of the merits of the arguments of fact and law submitted by
petitioners in support of their requests for cancellation and withdrawal of the
assessment.  This is the reason why, in
the said letter-decision of October 18, 1967, the respondent Commissioner
included n express statement that his office had decided^[4] to deny the petitioner’s request and the
latter was requested for the last time to pay the assessment, otherwise,
the corresponding penal actions would be taken; and it must also have been for
this reason that, in a reply-letter, dated February 1968, (Annex “L”)
to the indorsement of the Secretary of Finance requesting comment on the
petitioner’s prayer for reconsideration, and throughout the preliminary
proceedings in the respondent court and in this Court, the respondent
Commissioner unrelentingly clung to his assertion that it was his letter of
October 18, 1967 that constituted his final decision on the matter.  A pertinent portion of the reply-letter to
the Secretary of Finance reads thus:”

 “…I have the honor to inform you
that in a previous letter of this Office dated October 18, 1967, copy enclosed
for your ready reference, the taxpayer was requested to pay within thirty (30) days from receipt thereof of the amount
of P139,641.25, as forest charges, sales tax and surcharge.  Our letter is a decision on the taxpayer’s
administrative protest.”

It is also quite certain that the petitioner himself must have
believed that the letter of October 18, 1967 was the final decision of
respondent Commis­sioner for otherwise he would not have turned to the
Secretary of Finance immediately thereafter for possible relief.

It should further be said that the letter of May 23, 1968 was not
a “decision” but rather a mere reiteration of the respondent
Commissioner’s previous decision contained in his letter of October 18, 1967.

The argument then that in computing the 30-day period prescribed
by Section 11 of Republic Act No. 1125, the letter of the respondent
Commissioner of May 23, 1968 denying
the third request for reconsideration addressed to the Secretary of Finance should be considered as the final decision
contemplated in Section 7, becomes untenable.

It is worth mentioning in this connection that all the petitions
for reconsideration were premised on the same grounds.  By his successive motions, the petitioner was
able to delay the pay­ment of the taxes due from it for two years, which, of
course, is inimical to the interests of the State.  The third request for reconsideration
directed to the Secretary of Finance did not adduce new grounds.  It may, therefore, be considered a mere pro-forma
motion intended for the convenience of the petitioner.  This being so, the letter in response thereto
of the respondent Commissioner dated May 23, 1968 could hardly change the
nature of the letter-decision of October 18, 1967.

“We cannot countenance the theory that would make the
commencement of the statutory 30-day period solely dependent on the will of the
taxpayer and place the latter in a position to put off indefi­nitely and at his
convenience the finality of a tax assessment. 
Such an absurd procedure would be detrimental to the interest of the
Government, for ‘taxes are the lifeblood of the government, and their prompt
and certain availability an imperious need.’ (Bull vs. U.S., 795, U.S.
247).”^[5]

“While it is true that this Court had on several occasions
recognized the right of and encouraged taxpayers to exhaust all possible
administrative remedies before coming to it for the purpose of expediency and
to avoid unnecessary court expense on the part of the litigants, this right is
not without limit.  Once the Commissioner
of Internal Revenue has made clear to the taxpayer that his decision subject of
a series of requests for reconsider­ation is final, as his letter of January
30, 1957 in the instant case, subsequent requests for reconsideration thereof
made pro-forma and for dilatory purposes should be ignored for the purpose of
computing the running of the thirty-day period prescribed under Section 11 of
Republic Act No. 1125.  We cannot have
the running of the period of appeal entirely at the discretion of the taxpayer.”^[6]

We thus hold that the
letter of October 18, 1967 was the final decision of the respondent
Commissioner appealable to the Tax Court; that the period to appeal such
decision expired on December 7, 1967, so that when the petition for review was presented
to the Court of Tax Appeals on July 5, 1968, the assessment in question had
become final and executory; and that the subsequent request for reconsideration
directed to the Secretary of Finance (who is not authorized by law to review
decisions of the Commissioner of Internal Revenue) did not suspend the running
of the reglementary period within which to appeal.^[7]

Even if we consider, for
the sake of argument, that it did suspend, still, the petition for review was
filed out of time.  Following the legal
procedure of computing time under the “exclude the first include the
last” method, it is clear that from November 7, 1967, the date when the
petitioner received the respondent Commissioner’s letter-decision of October
18, 1967, to December 2, 1967, the date when the petitioner sent its third
request for reconsideration to the Secretary of Finance, 25 days had
elapsed.  From June 5, 1968, the date
when the petitioner received the respondent Commissioner’s letter of May 23,
1968, to July 5, 1968, the date the petitioner filed its petition for review
with the Tax Court, an additional 30 days had elapsed.  The appeal was therefore late by 25
days.  The period to appeal being jurisdictional
and non-extendible, the failure to file seasonably the petition for review was
fatal.^[8]

ACCORDINGLY, the dismissal of the petitioner’s appeal by
the Court of Tax Appeal’s hereby affirmed, at petitioner’s cost.

Teehankee, Makasiar, Muñoz Palma, Martin, Fernandez, and Guerrero, JJ., concur.

^[1]
CIR vs. Leonardo S. Villa and the CTA, G.R. No. L-23988, January 2,
1968; Republic vs. Juana del Rosario, et al., G.R. No. L-10460, March
11, 1959.

^[2]
Republic vs. Lim Tian Teng Sons & Co., Inc., G.R. No.
L-21731, March 31, 1966.

^[3]
St. Stephen’s Association vs. Collector, 55 O.G. 2243; Baguio Country
Club vs. Coll., L-11419, April 22, 1959; Roman Catholic Archbishop of
Cebu vs. Coll., L-16683, January 3, 1962; Morales vs. Collector
of Internal Revenue, G.R. No. L-16759, March
31, 1966.

^[4]
No such term was used in previous communica­tions of the respondent
Commissioner to the petitioner.

^[5]
North Camarines Lumber Co. vs. Coll., L-12353, September 30, 1960, cited
also in Roman Catholic Archbishop of Cebu vs. Collector, 4 SCRA, 283.

^[6]
Jose Ma. del Rosario vs. CTA, et al., G.R. No. L-17991, October 31,
1972, 6 SCRA 541.

^[7]
Roman Catholic Archbishop of Cebu vs. Collector, supra.

^[8]
Pangasinan Transportation Co., Inc. vs. Blaquera, G.R. No. L-13101,
April 29, 1960; Chan Kian vs. CTA, G.R. No. L-12184, May 29,
1959.