Can the BIR abate the Marcos estate tax?

As expected, my column last Monday on the desire of President Ferdinand “Bongbong” Marcos Jr. (PBBM) to reopen the P23 billion taxes (that had allegedly ballooned to P203 billion) imposed by the Bureau of Internal Revenue (BIR) on the estate left by former president Ferdinand Marcos Sr. (PFM) generated a lot of comments.

THE MOST EXTREME AMONG THEM is from retired Regional Trial Court Judge Frank Lobrigo who asserted that the BIR can — on its own authority under Section 204 of the National Internal Revenue Code (NIRC) — “abate taxes that are excessive or unjust” without need of reopening the decision in Marcos II v. CA (June 5, 2007). According to him, this decision merely affirmed the Court of Appeals (CA) verdict upholding the BIR’s use of “the summary remedy (levy and sale of the taxpayer’s assets)” to enforce assessments that “had already attained finality.”

He argued that the President has no power to appoint an independent body to review the findings of the BIR. Gallantly, he professed that while he “did not vote for (PBBM), (he would) accept if the estate tax issue is settled in accordance with the NIRC, whether the BIR enforces it or abates it as invoked by the Marcos estate …” and “once the unjust and excessive estate tax is abated, the Marcos estate can file an estate tax return anew and avail itself of the current estate tax amnesty.”

WITH DUE RESPECT, I MAINTAIN MY OPINION that (1) the BIR should advise the public of the status of its collection of the imposed estate taxes, (2) the President can and should appoint an independent body to determine the truth and validity of the imposed taxes, and (3) the Supreme Court (SC), upon the initiative of the Marcos heirs, can review the findings of that independent body.

On item (1), I received an email from Estrella V. Martinez, a former BIR regional director, enclosing a copy of her letter, dated Jan 17, 2007, to then finance secretary Margarito Teves stating that “in partial settlement of the tax liabilities of Ferdinand Marcos and Imelda Romualdez Marcos,” she was able to forfeit 10 parcels of land originally titled in the name of Imelda.

With this “partial settlement,” I think the original P23 billion (and the “balloon”) computation may no longer be accurate today. Also, unknown to the public, other Marcos properties may have been levied and sold by the BIR. Thus, it is imperative that the BIR makes the proper accounting because, as reader Jose Oliveros observed, “All the BIR Commissioners from 1999 to 2022 have remained silent …”

On item (2), I believe the President has the authority arising from his constitutional power of control over the entire executive branch to create an independent body to pass upon the BIR’s accounting and, generally, to review the facts and law involved in this controversy, in the same manner that PFM created the Agrava Board in relation to the murder of Ninoy Aquino. Relevantly, former SGV chair Cirilo Noel texted me that we cannot rely “simply on the BIR’s table assessment. This requires a factual determination by an independent body as you proposed.”

On item (3), I submit that the SC decision that had become final and executory cannot be ignored. True, it affirmed the CA verdict that in turn ratified the BIR’s summary method in imposing the P23 billion tax. In so doing, the Court, IMHO, had effectively affirmed the P23 billion tax liability.

Thus, an abatement or modification of this adjudged liability cannot be done — as a matter of law or at least of judicial courtesy — without the SC’s imprimatur. In reviewing the alleged “excessive and unjust” taxes, the Court can even create its own fact-finding body, similar to the commission (composed of retired SC Justice Conrado Vazquez as chair, retired CA Justice Milagros German, and lawyer Eduardo Caguioa) it created in Galman v. Sandiganbayan (Sept. 12, 1986). Retired SC Justice Adolfo S. Azcuna texted that a “Special Master” can also be appointed by the SC to help resolve its factual needs.

In sum, I believe that these three items are needed to determine whether there is a miscarriage of justice in the imposition and collection of the Marcos estate taxes.

CONGRATULATIONS TO RETIRED CJ LUCAS P. BERSAMIN for his patriotic and courageous agreement to serve as executive secretary; patriotic because he would be serving under the head of the executive branch, a rank lower in the officialdom than his prior post as the chief of a constitutionally coequal branch, the judiciary, to help the President in minimizing the poverty, inflation, joblessness, and ill-health afflicting our people, in protecting them from criminality and foreign incursions, in promoting the general welfare, and in upholding constitutional rights; and courageous because he is entering the political arena without the protective shields granted by the Constitution to the judiciary. He relies only on the continuing trust of the President to fend off the intrigues of political warlords and the jealousy of charlatans. May the Lord bless him in his new journey of service to our nation.

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MORE ‘WITH DUE RESPECT’

Reviewing the Marcos estate tax

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Moral turpitude