Will BBM’s huge lead in surveys collapse on this Marcos estate tax case?

This is the biggest question that will only be answered come election day, or 34 days from today. This final and executory estate tax is perhaps the biggest and final accusation thrown against the dictator’s son, now poised to become our next president.

It is ironic that we, the public, will not know all relevant and important facts of this issue when we vote on May 9. The simple reason is that all BIR tax cases are strictly confidential and cannot be divulged. Since 1991 until today, no past or present government official, BIR or PCGG or the Court of Appeals or Supreme Court has disclosed the basis and details of the original P23-billion BIR assessment on the Marcos estate. Even the P203-billion after penalties and surcharges extrapolated by retired SC Senior Associate Justice Antonio Carpio are all hot air.

Why did past BIR commissioners failed to collect the estate tax despite the final and unappealable SC decision? No one filed criminal charges against the Marcos heirs, who refused to pay since 1997. From my count, there are at least 10 former BIR commissioners from Ramos appointee-Liwayway Vinzons Chato, Estrada appointees-Beethoven Rualo and Dakila Fonacier, Arroyo appointees- Atty. Rene G. Bañez, former Customs Commissioner Guillermo Parayno Jr., Atty. Jose Mario C. Buñag, Lilian B. Hefti, Sixto Esquivias IV, Joel L. Tan Torres. During Pnoy’s time, BIR Commissioner Kim Jacinto S. Henares now says she decided not to criminally charge Marcos heirs to avoid her office being overrun by challenges of their lawyers. She further said, the Marcos estate is qualified to avail of the estate tax amnesty under the TRAIN law (RA 11213) until 2023, a statement disputed by several tax experts.

A Tuesday Club colleague, former BIR Commissioner Jose Mario S. Buñag in our chatroom, gave his “unvarnished truth” which I find very interesting. “When FM died in 1989, the heirs are obliged to file the estate tax return and pay the estate tax within 6 months. No return was filed. In 1992, Ramos was elected president and appointed Liwayway Chato as BIR Commissioner. Under the Tax code, when a tax return is supposed to be filed and it is not filed, the Commissioner is authorized to make the return to the best of his/her knowledge and file it with the BIR. Since no return was filed on FM’s estate, Comm. Chato made the return and filed it based, I think, on what were being reported as assets of FM. Also, since no taxes were paid, the BIR issued an assessment of P23-B based on the return Chato prepared and filed. The Marcos lawyer then made a fatal mistake. Instead of elevating the case to the Court of Appeals within 30 days as required, he elevated it instead to the Court of Appeals. Expectedly, the CA denied the petition as filed in the wrong court. Instead of rushing to the CTA to meet the deadline, the Marcoses went up to the Supreme court, which affirmed the CA decision. Since the 30 days to go to the CTA had elapsed, the Marcoses were out of remedies and the assessment became final and executory.

“Right or wrong, the assessment is now beyond question. So even if Chato included in the computation properties not belonging to FM, it cannot be questioned anymore. That ship has sailed. A final assessment is like a court’s final judgment. It can be executed by garnishing bank accounts and levying on properties. The reason BIR has not collected is because the Marcoses have not paid, FM has no bank accounts and the only known real property in his name is the Ortega property in San Juan where he used to live. Believe it or not, FM did not put properties in his name. Even the properties in NY were in other people’s names. Other assets, like the Swiss accounts, the paintings etc. were claimed by the PCGG as ill-gotten and therefore did not belong to FM but to the Philippine government. So what to do?”

On the matter of the total taxes to be paid after surcharges and penalties, Buñag says, “If the estate tax is P23B, the net taxable estate may be around P115-B. So max is that. And the properties PCGG is recovering from the Marcoses should be turned over to BIR to settle the tax”.

Clearly, Buñag is saying it’s not P203 billion but only a maximum of P115 billion is collectible. And if the PCGG-recovered properties are turned over to the BIR, then probably there was nothing for the Marcos heirs to settle.

Wow, the plot further thickens.