CTA Case No. 2111 (Resolution)

� HE''\T!\l.TC OF THE PHILIPPi~ES CulJRT OF TAX APPEALS QUEZON Cl'J'Y FAUSTO R. TUii CUATO , Petitioner , - versus - C� T. A� CASE NO � 21 11 COhl; ISSIOl~ER OF HJT~HM1.L R31TENUE , , .. Respondent . X- - - - - - - - - - - X RES 0 LUT I 0 N This re fe rs to the motion for the . d is miss a l of this cas e on jurisd icti onnl grounds filed by re spondent . It appears that on lv.a rch 27 , 1962 , re spondent assess ed and demand ed payme~t f rom petitioner the amount of 11'6 , 282 . 90 as comrn.ercio.l b roker 1 s fixed and perce nta.ge taxes , inclusive of' s �urch:::.r ge , f or � the per i od frorri 1959 to 1960 plus the amount of f"<)8 0 . 00 as compromise peml ty . On Nay 10 , 1962 , petitioner \�rrote the Commissioner of Inter!k;.l Hevenue requesting the ,,ri thdrav1al and CD.ncellati on of sn i d assessment �vrhich ,:r;J.s denied by respondent on August j , 1962 . On August 17 , 1962 , counsel for petitioner r equested for 8. reinvestigat ion and revie'\v of the ca se by the Appel late Division but s a id request \.�ras likevrise denied by respondent on September 18 , 1962 . 1'he denial i.�Tas aclcno't�rledged by counsel for petitioner in his reply letter to r e�spondent dated October 4, 1962 rei teratin:; his reauest that the co.se be set for heo_ring before the Appellate Division. �

RESOLUJ:IOi�I - CTA CASE NO . 211 1 2 Upon these facts respondent urges in its motion to dismiss that the 30- day period within ~>rhich to appeal to this Court has already prescribed , since the denial of the reauest for reinvestigation dated September 18, 1962 , \-Tas a fina_l decis.ion, and that petitioner should have filed his appeal within thirty days (30) from October 4, 1962 , the date of the receipt of the denial for reinvesti ga- tion. Respondent further alleged that counsel ' s letter dated October .4, 1962 rei terE,ting his re- quest for a hearing before the Appellat.e Divi sion v1as merely pro - forma and did not toll the running of the thirty day (30 ) period provided under Se c. 11 of Rep . Act Yo . 11 25 . It appears tha t t his cnse is one of the numerous cases of similar nc:_ ture h.::. ndled by counsel of petitioner involving different taxpayers . In the communication beb:.veen them , res ::>ondent and counsel for taxpayers sometimes dealt with s a id c;::. ses � jointly and not separ.s.tely . Subsequent to the letter of September 18 , 1962 , \�rhich is being claimed to be the final decision, res pondent �v1rote petitioner ' s counsel on September 26 , 1962 tha t: With reference to your various letters for and in behalf of your various clients , appealing fron the assessments of this Office against them for broker ' s fixed e.nd per ce nta ge taxes in relation to tl;.eir business dealings vTi th the Inter-

RESOLUTION - CTA CAS~ ~0 . 2111 3 DcJ.tionc.l ~a rves ter Hacleod , Inc ., I h a ve the honor to i r:for m y ou tha t your a dministr ~1 tive appe 2. l for and in b eha lf of s a id clients will be held in abeya nce pend i ng re s olution- of t h e is s u e s on a s i mila r � c a se .~,.,rhich �t-ra s appe e le d by y ou to t h e Court of ~ax Apu e a ls . In order to res olve once and for a ll the f a ct ual <:Hld le go l issues a rising from t he jud icia l appe a l of one of your� clients , this Of f ice ha s d eci d e d to deny y our re ques t for a n administra tive he a ring of e ~ ch of the ca ses of your va rious client s \�rh ich a re s i mi la r to . the ca se eleva ted by you on appea l to t h e Court of Tax Appe a ls . On Octo ber 12, 1962 , petit ioner executed a wa iver of the st a tute of limit a tion. On July 27 , 1967 , re sp ondent -vrrote pe titio ne r t ha t fin-::. 1 resolution of the lJrot e st is " b eing he l d in abeya nce � until the Su preme Court rend er its decision on a s i mila r c c-~ se i nvolving the s ame f a ctua l a nd le gal i s sues brought to it on appe a l 11 a nd a t t h e s ame time re que s ting counsel for p etitioner s to "ur ge your clients to \va i ve a ne\�T the sta tute of l imi ta - tions11 pur s ua nt to which petitione r e x ec u ted the require d \�Ta iver on Aug ust 30 , 1967 , e x t end i ng the per i od to December 31 , 1970 . Re spo nd ent 1 s co nte ntion tha t the denia l da ted Se p tember 18 , 1962 vras h i s f i n...a l d eci s i on i s not in keep ing vJ"i th the evid ence a dduced by the p:;. rties and the records of t h is c a se . In s e. i d l e tter res_pond erit mer e ly re quested p et i t i oner ' s cou nsel to 11 ur ge yo ur client to pay the s a i d .s um of

RESOLU'fiON ..:. CTA CASE NO . 2111 4 ?7 , 262 . 90 in order th<J.t the case may be closed . 11 This tenor of the letter hardly connotes finality . Respondent , on the other hand , clearly manifested that resol ution of petitioner ' s motion for recon- sideration vras being held in abeyance . Granting , ar~uenc'lo , that respondent intended the denial of September 18 , 1962 to be fi:t:..al (Algue , Inc vs . CorrJYJ . of Int . Hev ., C'rA Case :No . 1620 , Ja.n . 16 , 1968 ) , it can be safely said that he reconsidered the fin,:=;tlity of said denial by his subsequent communications to petitioner . Thus , \;Je are of the opinion that the 30- day period for appeal to this Court cannot be counted from October LJ- , 1962 . He further note , hovJever , that pa r ag r aph XII of the petition for review .alleges that - Noti.�Ji thstanding the fact that no . fi!lc?.l decision has been rendered by the res pondent on petitioner ' s protest and/ or request for reconsider ation, this � petition is being filed by petitioner in view of information received f~om the Bureau of Internal Hevenue that a \<Jar rant of Distr aint and Levy may be served upon � petitioner , x x x. As ide from this admission, it may also be scdd that there is nothing in the record of this CE~se to shO"t~J that � D.ny such final decision has been rendered by respondent . 'VJhile a vmrrant of dis"traint and levy is equivalent to a denial of a pending motion for reconsideration or reinvestigation ( Frederi ck L. Hahn vs . Comm . of Int . Rev ., C'rA Case No . 1937 ,

'-- ' ~JOL"lTTIOl - CT_ Ci�.SE LO . 2111 5 Hesolutton of April 30 , 1969 ), it is so only 1...rben the Commissioner has not actually taken any action on the motion or request for reconsideration. (Gepte vs . Comm . of Int . Hev . , CT..~ Case No . 1511 , Resolution of March 31 , 1971 . ) In the instant case , there is even no shovring that a warront of distraint and levy hadact ually been issued . It is true that there is a copy of a Ha.rrant in the B. I . R. record but there�is nothing there i n that shovJs thc:tt it has been served . The warrant of distraint and levy takes effect only vlhen it i s served (Gepte vs . Comm . of Int . Rev . , surJra ) . Under the circumstances , this petition for review is premature . vJHERCFO E , the peti tj_on for revievr is hereby dismissed for being :prematur e . \hthout pronounce- ment as to costs . SO OHDER:JD . Quezon City , April 2 , 1974. L~~ Presiding Judge ~j_~~ ESTAhi8LAO R. ALVAn.C.:Z Associate Judge RAHON L. AITALCENA Associate Judge (Di d not take part)