Reviewing the Marcos estate tax | Inquirer Opinion
With Due Respect

Reviewing the Marcos estate tax

During a recent TV interview hosted by screen celebrity Toni Gonzaga, President Ferdinand “Bongbong” Marcos Jr. (PBBM) asked for the reopening of the estate taxes imposed on his deceased father’s properties and assets.

MEDIA IMMEDIATELY RESPONDED that the Supreme Court decision ordering the Marcos heirs to pay the estate tax of P23 billion had become final and executory on March 9, 1999. Since then, the amount had allegedly ballooned to P203 billion due to penalties and surcharges.

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In an interview, Commissioner Lilia Guillermo of the Bureau of Internal Revenue (BIR), at the start, prudently said that she needed to see the “correct data” before commenting. When told that the decision on the matter had become final and executory, she replied she would respectfully ask PBBM, “P’wede ba maging role model kayo?” (Can you be a role model?) This reply was bandied by the broadsheets last June 23 and went viral on social media.

Let’s briefly look at the decision that “had become final”: Marcos II v. Court of Tax Appeals (June 5, 1997) that ruled: “Apart from failing to file the required Estate Tax Returns within the time required… petitioner and the other heirs never questioned the assessments served upon them, allowing the same to lapse into finality, and prompting the BIR to collect the said taxes by levying upon the properties left by President Marcos … [A]ssessments [of the BIR] are presumed correct and made in good faith. The taxpayer has the duty of proving otherwise … The course of action taken by petitioner reflects his disregard or even repugnance of the established institutions for governance in the scheme of a well-ordered society.”

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This decision, rendered 25 years ago by the Court’s Second Division, was penned by J Justo Torres Jr. and concurred in unanimously by JJ Florenz Regalado (Division chair), Flerida Ruth Romero, Reynato Puno, and Vicente Mendoza.

MAY THIS FINAL AND EXECUTORY DECISION STILL BE REVIEWED? Ordinarily, the answer is “No.” However, in my humble opinion, when the facts are shown to be grossly erroneous and/or the law gravely misapplied resulting in a glaring miscarriage of justice, the decision may be reviewed, modified, or reversed.

A simple example from the US: When a rape convict is shown by uncontroverted proof that he was abroad when the crime happened and/or by DNA evidence that the sperms found inside the vagina were not his, the conviction may be reviewed and a new one rendered acquitting him.

An example from the Philippines: then President Ferdinand Marcos Sr. created on Oct. 22, 1983, an independent fact-finding body, the Agrava Board. After holding 125 sessions, hearing 194 witnesses, and consuming 20,377 pages of transcript, the Agrava Board concluded that several military officers, including Gen. Fabian Ver, conspired to kill Ninoy Aquino. Despite this, the Sandiganbayan (SBN), in a decision dated Dec. 2, 1985, penned by J Manuel Pamaran, acquitted all the accused. Verdicts of acquittal are immediately final and executory.

After the 1986 Edsa People Power Revolution, the newly reconstituted Supreme Court found the SBN trial “to be a sham” and nullified the Pamaran verdict. Thereafter, a re-trial in the SBN ensued. In its 177-page decision dated Sept. 28, 1990, written by J Regino Hermosisima Jr., the SBN found 16 soldiers, including Brig. Gen. Luther Custodio (but not General Ver), guilty of double murder. The Supreme Court denied the soldiers’ appeal on July 23, 1991.

THESE TWO EXAMPLES SHOW, IMHO, that jurists are not mere legal robots churning out automated results. They do not dispense legalism in a sterile vacuum without a social milieu. They render justice—in its purest form—to live human beings. In building a just and humane society, they “give everyone his (or her) due.” Can the lawyers of PBBM draw a parallel to these examples and show grossly erroneous facts and/or gravely misapplied laws amounting to denial of due process and a glaring miscarriage of justice?

On this point, I wrote last June 27 (“Facts and fantasies on Marcos’ estate tax”) that before any reopening can be considered, the BIR should first answer some factual questions, like: “How much has the BIR collected from the levy and auction of the Marcos properties? How much remains to be collected? How was the P23 billion computed? How did it balloon to P203 billion? …” To my knowledge, the tax agency has not answered the questions.

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After the BIR answers them and, I think, before the judiciary can entertain a reopening, an independent group (similar to the Agrava Board)—to be led possibly by the Integrated Bar of the Philippines and the Philippine Institute of Certified Public Accountants—should be formed to review the factual bases of the Torres ponencia. The group may take up issues like: How much indeed is the Marcos estate that should be taxed? Is it true that assets turned over by the Marcos “cronies” to the government and/or judged to have been ill-gotten were still included in the estate? And similar questions.

Comments to [email protected]

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