Court junks BIR petition vs. Justice Chief de Lima

Appeals Court says Commissioner Kim Henares used the wrong remedy in questioning the DOJ resolution dismissing the P10.06-M tax evasion case against the heir of Oscar Ongsiako and the register of deeds of Pasay City

THE Court of Appeals (CA) has dismissed the petition filed by the Bureau of Internal Revenue (BIR) against Department of Justice (DOJ) Secretary Leila M. de Lima in connection with the dismissal of a P10.06-million tax evasion case against the heir of Oscar Ongsiako and the register of deeds of Pasay City.

In its ruling made public yesterday, the CA Fourth Division through, Associate Justice Noel Tijam, said that petitioner BIR through Commissioner Kim S. Jacinto-Henares used the wrong remedy in questioning the DOJ resolution.

The CA said that under the Rules of Court, petitioners can only go straight to them “in the absence of an appeal or any plain, speedy, and adequate remedy in the ordinary course of law.”

It said that under the National Prosecution Service Rule on Appeal, the BIR should have first filed a petition for review before the secretary of justice.

“It bears stressing that the resolution of the investigating prosecutor is subject to appeal to the justice secretary who, under the Revised Administrative Code exer- cises power of control and supervision over the said investigating prosecutor,” the CA said.

Assuming that the petition was the proper remedy, the CA said, it still has no merit because determining the basis on whether to dismiss or file a case in court is “essentially an executive function that is lodged at the first instance with the public prosecutor and ultimately the justice secretary.”

“Courts can neither override their determination nor substitute their own judgment… they cannot likewise order the prosecution of the accused when the prosecutor has not found prima facie case,” the CA said.

It added that the only exception is when the DOJ resolution is tainted with grave abuse of discretion which in this is not.

“BIR failed to show that the justice secretary committed grave abuse of discretion in dismissing the criminal complaint against private respondents,” the CA said.

The case arose from the 2011 complaint filed by the BIR against Juan Miguel Ongsiako with one count of willful attempt to evade or defeat payment of estate tax, one count of willful attempt to evade or defeat payment of documentary stamp tax return, and to pay tax, in violation of Sections 254 and 255 of the National Internal Revenue Code (NIRC) of 1997.

Juan Miguel was also charged with one count of willful attempt to evade or defeat payment of Capital Gains Tax (CGT) and one count of willful failure to file CGT Return, and to pay tax, all in violation of Sections 254 and 255 of the NIRC of 1997.

The DOJ, through Assistant State Prosecutor Stewart Allan Mariano, however dismissed the complaint due to insufficiency of evidence.