G.R. Nos. 108135-36. August 14, 2000
POTENCIANA M. EVANGELISTA, PETITIONER, VS. THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE SANDIGANBAYAN, (FIRST DIVISION), RESPONDENTS.
YNARES-SANTIAGO, J.:
acquitting petitioner of the charge of violation of then Section 268 (4)
of the National Internal Revenue Code[1] but affirming her conviction for violation of Republic Act No. 3019, Section 3 (e),[2]
thus imposing on her an indeterminate sentence of imprisonment for six
(6) years and one month as minimum to twelve (12) years as maximum, and
the penalty of perpetual disqualification from public office.
The basic facts are briefly restated as follows:
On September 17, 1987, Tanduay Distillery, Inc. filed with the
Bureau of Internal Revenue an application for tax credit in the amount
of P180,701,682.00, for allegedly erroneous payments of ad valorem taxes
from January 1, 1986 to August 31, 1987. Tanduay claimed that it is a
rectifier of alcohol and other spirits, which per previous ruling of the
BIR is only liable to pay specific taxes and not ad valorem taxes. Upon
receipt of the application, Aquilino Larin of the Specific Tax Office
sent a memorandum to the Revenue Accounting Division (RAD), headed by
petitioner, requesting the said office to check and verify whether the
amounts claimed by Tanduay were actually paid to the BIR as ad valorem
taxes. Larin’s memorandum was received by the Revenue Administrative
Section (RAS), a subordinate office of the RAD. After making the
necessary verification, the RAS prepared a certification in the form of a
1st Indorsement to the Specific Tax Office, dated September 25, 1987,
which was signed by petitioner as RAD chief.
The 1st Indorsement states that Tanduay made tax payments
classified under Tax Numeric Code (TNC) 3011-0001 totalling
P102,519,100.00 and payments classified under TNC 0000-0000 totalling
P78,182,582.00. Meanwhile, Teodoro Pareño, head of the Tax and Alcohol
Division, certified to Justino Galban, Jr., Head of the Compounders,
Rectifiers and Repackers Section, that Tanduay was a rectifier not
liable for ad valorem tax. Pareño recommended to Larin that the
application for tax credit be given due course. Hence, Larin recommended
that Tanduay’s claim be approved, on the basis of which Deputy
Commissioner Eufracio D. Santos signed Tax Credit Memo No. 5177 in the
amount of P180,701,682.00.
Sometime thereafter, a certain Ruperto Lim wrote a
letter-complaint to then BIR Commissioner Bienvenido Tan, Jr. alleging
that the grant of Tax Credit Memo No. 5177 was irregular and anomalous.
Based on this, Larin, Pareño, Galban and petitioner Evangelista were
charged before the Sandiganbayan with violation of Section 268 (4) of
the National Internal Revenue Code and of Section 3 (e) of R.A. 3019,
the Anti-Graft and Corrupt Practices Act. Larin, Pareño and petitioner
were later convicted of both crimes, while Galban was acquitted inasmuch
as his only participation in the processing of Tanduay’s application
was the preparation of the memorandum confirming that Tanduay was a
rectifier.
The three accused filed separate petitions for review. Pareño’s
and Larin’s petitions were consolidated and, in a decision dated April
17, 1996, both were acquitted by this Court in Criminal Cases Nos. 14208
and 14209.[3] In this
petition, on the other hand, we acquitted petitioner in Criminal Case
No. 14208, for violation of Section 268 (4) of the NIRC. However, we
found petitioner guilty of gross negligence in issuing a certification
containing TNCs which she did not know the meaning of and which, in
turn, became the basis of the Bureau’s grant of Tanduay’s application
for tax credit. Thus, we affirmed petitioner’s conviction in Criminal
Case No. 14209, i.e., for violation of Section 3 (e) of the Anti-Graft
and Corrupt Practices Act.
Petitioner seasonably filed a Motion for Reconsideration,[4]
wherein she asserts that there was nothing false in her certification
inasmuch as she did not endorse therein approval of the application for
tax credit. Rather, her certification showed the contrary, namely, that
Tanduay was not entitled to the tax credit since there was no proof that
it paid ad valorem taxes. Petitioner also claims that she was neither
afforded due process nor informed of the nature and cause of the
accusation against her. She was found guilty of an offense different
from that alleged in the information; consequently, she was unable to
properly defend herself from the crime for which she was convicted.
The Information against petitioner and her co-accused in Criminal
Case No. 14209 alleges in fine that they caused undue injury to the
Government and gave unwarranted benefits to Tanduay when they endorsed
approval of the claim for tax credit by preparing, signing and
submitting false memoranda, certification and/or official communications
stating that Tanduay paid ad valorem taxes when it was not liable for
such because its products are distilled spirits on which specific taxes
are paid, by reason of which false memoranda, certification and/or
official communications the BIR approved the application for tax credit,
thus defrauding the Government of the sum of P107,087,394.80,
representing the difference between the amount claimed as tax credit and
the amount of ad valorem taxes paid by Tanduay to the BIR.[5]
According to petitioner, instead of convicting her of the acts
described in the Information, she was convicted of issuing the
certification without identifying the kinds of tax for which the TNCs
stand and without indicating whether Tanduay was really entitled to tax
credit or not.
The Solicitor General filed his Comment[6]
wherein he joined petitioner’s cause and prayed that the motion for
reconsideration be granted. In hindsight, even the Solicitor General’s
comment on the petition consisted of a “Manifestation and Motion in lieu
of Comment,”[7] where he recommended that petitioner be acquitted of the two charges against her.
We find that the Motion for Reconsideration is well-taken.
After a careful re-examination of the records of this case, it
would appear that the certification made by petitioner in her 1st
Indorsement was not favorable to Tanduay’s application for tax credit.
Far from it, petitioner’s certification meant that there were no
payments of ad valorem taxes by Tanduay in the records and hence, it was
not entitled to tax credit. In other words, the certification was
against the grant of Tanduay’s application for tax credit.
It has been established that the BIR adopted tax numeric codes
(TNCs) to classify taxes according to their kinds and rates, in order to
facilitate the preparation of statistical and other management reports,
the improvement of revenue accounting and the production of tax data
essential to management planning and decision-making. These codes
include TNC No. 3011-0001 for specific tax on domestic distilled
spirits, TNC No. 3023-2001 for ad valorem tax on compounded liquors, and
TNC No. 0000-0000 for unclassified taxes.
Petitioner’s 1st Indorsement dated September 25, 1987 lists down
the confirmation receipts covering tax payments by Tanduay for the
period January 1, 1986 to August 31, 1987, during which Tanduay alleges
that it made erroneous ad valorem tax payments, classified according to
TNC numbers. The tax payments therein are described only as falling
under TNC No. 3011-0001, i.e., specific tax, and TNC No. 0000-0000,
i.e., unclassified taxes. There are no tax payments classified as
falling under TNC No. 3023-2001, the code for ad valorem taxes. The
import of this, simply, is that Tanduay did not make any ad valorem tax
payments during the said period and is, therefore, not entitled to any
tax credit.
Further, petitioner contends that she was convicted of a supposed crime not punishable by law.[8]
She was charged with violation of Section 3 (e) of Republic Act No.
3019, the Anti-Graft and Corrupt Practices Act, which states:
SEC. 3. Corrupt practices of public officers. — In
addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any
public officer and are hereby declared to be unlawful:xxx xxx xx.
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official, judicial or
administrative functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall apply to officers
and employees of offices or government corporations charged with the
grant of licenses or permits or other concessions.xxx xxx xxx.
The elements of the offense are: (1) that the accused are public
officers or private persons charged in conspiracy with them; (2) that
said public officers commit the prohibited acts during the performance
of their official duties or in relation to their public positions; (3)
that they cause undue injury to any party, whether the Government or a
private party; (4) that such injury is caused by giving unwarranted
benefits, advantage or preference to such parties; and (5) that the
public officers have acted with manifest partiality, evident bad faith
or gross inexcusable negligence.[9]
R.A. 3019, Section 3, paragraph (e), as amended, provides as one
of its elements that the public officer should have acted by causing any
undue injury to any party, including the Government, or by giving any
private party unwarranted benefits, advantage or preference in the
discharge of his functions. The use of the disjunctive term “or”
connotes that either act qualifies as a violation of Section 3,
paragraph (e), or as aptly held in Santiago,[10]
as two (2) different modes of committing the offense. This does not
however indicate that each mode constitutes a distinct offense, but
rather, that an accused may be charged under either mode or under both.[11]
In the instant case, we find that petitioner, in issuing the
certification, did not cause any undue injury to the Government. She
also did not give unwarranted benefits, advantage or preference to
Tanduay. Neither did petitioner display manifest partiality to Tanduay
nor act with evident bad faith or gross inexcusable negligence. Quite
the contrary, petitioner’s certification was against the interest of
Tanduay. It did not advocate the grant of its application for tax
credit. The certification can even be read as a recommendation of denial
of the application.
Petitioner further argues that her conviction was merely based on
her alleged failure to identify with certainty in her certification the
kinds of taxes paid by Tanduay and to indicate what the TNCs stand for,
which acts were different from those described in the Information under
which she was charged. This, she claims, violated her constitutional
right to due process and to be informed of the nature and cause of the
accusation against her.
It is well-settled that an accused cannot be convicted of an
offense unless it is clearly charged in the complaint or information.
Constitutionally, he has a right to be informed of the nature and cause
of the accusation against him. To convict him of an offense other than
that charged in the complaint or information would be a violation of
this constitutional right.[12]
In the case at bar, we find merit in petitioner’s contention that the
acts for which she was convicted are different from those alleged in the
Information. More importantly, as we have discussed above, petitioner’s
act of issuing the certification did not constitute corrupt practices
as defined in Section 3 (e) of R.A. 3019.
Employees of the BIR were expected to know what the TNCs stand
for. If they do not, there is a “Handbook of Tax Numeric Code of Revenue
Sources” which they can consult. With this, petitioner should not be
required to describe in words the kinds of tax for which each TNC used
stands for. Precisely, the purpose of introducing the use of tax numeric
codes in the Bureau was to do away with these descriptive words, in
order to expedite and facilitate communications among the different
divisions therein. We find that petitioner’s omission to indicate what
kind of taxes TNC Nos. 3011-0001 and 0000-0000 stand for was not a
criminal act. Applicable here is the familiar maxim in criminal law: Nullum crimen nulla poena sine lege. There is no crime where there is no law punishing it.
On the whole, therefore, we find that petitioner was not guilty
of any criminal offense. The prosecution’s evidence failed to establish
that petitioner committed the acts described in the Information which
constitute corrupt practices. Her conviction must, therefore, be set
aside. For conviction must rest no less than on hard evidence showing
that the accused, with moral certainty, is guilty of the crime charged.
Short of these constitutional mandate and statutory safeguard — that a
person is presumed innocent until the contrary is proved — the Court
is then left without discretion and is duty bound to render a judgment
of acquittal.[13]
WHEREFORE, the Motion for Reconsideration is
GRANTED. This Court’s Decision dated September 30, 1999 is RECONSIDERED
and SET ASIDE. Petitioner is ACQUITTED of the charge against her.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
[1] Criminal Case No. 14208, Sandiganbayan, First Division.
[2] Criminal Case No. 14209, Sandiganbayan, First Division.
[3] Pareño v. Sandiganbayan, G.R. Nos. 107119-20, Larin v. Sandiganbayan, G.R. Nos. 108037-38, April 17, 1996, 256 SCRA 242.
[4] Rollo, pp. 500-532.
[5] Rollo, pp. 67-68.
[6] Rollo, pp. 599-609.
[7] Rollo, pp. 267-320.
[8] Rollo, p. 513.
[9] Ingco v.
Sandiganbayan, 272 SCRA 563, 574 (1997); citing Medija, Jr. v.
Sandiganbayan, 218 SCRA 219 (1993); Ponce de Leon v. Sandiganbayan, 186
SCRA 745 (1990)
[10] Santiago v. Garchitorena, 228 SCRA 214 (1993)
[11] Bautista v. Sandiganbayan, G.R. No. 136082, May 12, 2000.
[12] People v. Ortega,
276 SCRA 166, 186 (1997); citing People v. Guevarra, 179 SCRA 740, 751,
December 4, 1989, Matilde, Jr. v. Jabson, 68 SCRA 456,461, December 29,
1975 and U.S. v. Ocampo, 23 Phil. 396 (1912)
[13] People v. Legaspi, G.R. No. 117802, April 27, 2000.