For legal research purposes of our readers, we reproduce below the jurisprudential parts of a protest/appeal we recently filed with a Local Board of Assessment Appeals questioning a municipal assessor's act of reclassifying and reassessing parcels of land of a resort owned by our client.
LOCAL BOARD OF ASSESSMENT APPEALS
(Thru: THE REGISTER OF DEEDS, X X X
CITY)
IN THE MATTER OF THE OMNIBUS PROTEST
AND APPEAL
OF X X X
IN RE: (A) THE TAX
DECLARATIONS
ISSUED BY THE MUNICIPAL
ASSESSOR
OF X X X, XXX , RECEIVED
ON
FEBRUARY 3, 2012 BY THE
HEREIN
APPELLANTS AND (B) THE
CORRESPONDING
REAL ESTATE TAXES
PAYABLE THEREON,
X X X,
,
Appellants
-
versus – Case
No. __________
THE MUNICIPAL ASSESSOR OF XXX;
THE MUNICIPAL TREASURER OF XXX;
THE PROVINCIAL ASSESSOR OF XXX; and
THE PROVINCIAL TREASURER OF XXX,
ENGR. XXX (TAX MAPPER
AT THE OFFICE OF THE PROVINCIAL ASSESSOR),
Appellees.
X - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - X
OMNIBUS PROTEST AND APPEAL
THE APPELLANTS XXX, by counsel, respectfully state:
X X X.
II.NATURE
OF THE INSTANT APPEAL
1.
The instant
appeal is taken by the appellants pursuant to Section 252 (in relation to Section 225) of the Local Government
Code from the “Notices of Assessments”,
dated February 3, 2012 ((Annexes “C” to “C-1”, infra), issued by the
appellee Municipal Treasurer of XXX, XXX, together with the “Tax
Declarations” he issued therewith, which were received by the appellants on the same
day, February 3, 2012 (Annexes “C” to
C-15”, infra), and from the “Notices
of Assessment and Tax Bill”, dated April 12, 2012 and April 19, 2012 (Annexes
“E” to “E-1”, infra), issued upon the authority and instructions of the
appellee Provincial Treasurer of XXX, and, further, in relation to the PAYMENT
UNDER PROTEST made on April 24, 2012 by the appellants per Official Receipt
Nos. X X X (Annex “F” to “F-3”, in relation to Annexes “G” to “G-1”, infra).
X X X.
VI. APPLICABLE CONSTITUTIONAL AND
LEGAL PROVISIONS
2.
Quoted
hereunder are the different provisions of the Constitution and the Local
Government Code that are applicable to and ought to serve as guide to the
member of the Local Board of Assessment
Appeals (LBAA) that will initially resolve the instant appeal.
VI.A. APPLICABLE
PROVISIONS OF THE 1987 CONSTITION
3.
Section 1, Article III, Bill of Rights, 1987
Constitution:
“Section 1. No person shall be deprived of life, liberty,
or property without due process of law, nor shall any person be denied the
equal protection of the laws”.
VI.B. APPLICABLE PROVISIONS OF THE
LOCAL GOVERNMENT CODE:
4.
Section 130, Fundamental Principles (of Local Government Taxation), Local
Government Code:
“Section 130. Fundamental
Principles. – The following fundamental principles shall govern the
exercise of the taxing and other revenue-raising powers of local government
units:
x x x
(1) Taxes, fees. Charges and other impositions shall:
(a)
be equitable and based as far as
practicable on the taxpayer’s ability
to
pay;
(b) x x x;
(c) not be
unjust, excessive, oppressive, or confiscatory;
x x x (emphasis supplied)”.
5.
Section 198,
Fundamental Principles (of Real Property Taxation) Local Government Code:
“Section 198. Fundamental
Principles. – The appraisal, assessment, levy and collection of real
property tax shall be guided by the following fundamental principles
“x x x
x x x
(e) The appraisal and assessment of real property
shall be equitable
(emphasis
supplied)”.
6.
Section 201, Appraisal of Real Property,
Local Government Code:
“Section 201. Appraisal of Real Property. – All real
property, whether taxable or exempt, shall be appraised at the current and fair market value prevailing in the locality where
the property is situated. x x x (emphasis
supplied)”.
7.
Section 202, Declaration of Real Property by the Owner or
Administrator, Local Government Code:
“Section 202. Declaration of Real
Property by the Owner or Administrator. – It shall be the duty of all
persons, natural or juridical, owning or administering real property, including
the improvements therein, within a city or municipality, or their duly
authorized representative, to prepare, or cause to be prepared, and file with
the provincial, city or municipal assessor, a sworn statement declaring the
true value of their property, whether previously declared or undeclared,
taxable or exempt, which shall be the current and fair market value of the
property, as determined by the declarant. Such declaration shall contain a description
of the property sufficient in detail to enable the assessor or his deputy to
identify the same for assessment purposes.
The sworn declaration of real property herein referred to shall be filed
with the assessor concerned once every
three (3) years during the period from January first (1st) to June
thirtieth (30th) commencing with the calendar year 1992”.
8.
Section 204,
Declaration of Real Property by the Assessor, Local Government Code:
“Section 204. Declaration of Real Property by the Assessor. – When
any person, natural or juridical, by whom real property is required to be
declared under Section 202 hereof, refuses
or fails for any reason to make such declaration within the time
prescribed, the provincial, city or municipal assessor shall himself declare
the property in the name of the defaulting owner, if known, or against an
unknown owner, as the case may be, and shall assess the property for taxation
in accordance with the provision of this Title. No oath shall be required of a
declaration thus made by the provincial, city or municipal assessor”.
9.
Section 213,
Authority of Assessor to Take Evidence, Local Government
Code:
“Section 213. Authority of
Assessor to Take Evidence. – For the purpose of obtaining information on
which to base the market value of any real property, the assessor of the
province, city or municipality or his deputy may summon the owners of the properties to be affected or persons
having legal interest therein and
witnesses, administer oaths, and take
deposition concerning the property, its
ownership, amount, nature, and value. (Emphasis supplied)
10.
Section 217,
Actual Use of Real Property as Basis for Assessment, Local
Government
Code:
“Section 217, Actual Use of Real Property as Basis for Assessment. –
Real property shall be classified, valued and assessed on the basis of its actual use regardless of where located,
whoever owns it, and whoever uses it”. (Emphasis supplied).
11.
Section 221, Date of Effectivity of Assessment or Reassessment, Local
Government Code:
“Section 221. Date of Effectivity
of Assessment or Reassessment. – All assessments or reassessments made
after the first (1st) day of January of any year shall take effect on the first (1st)
day of January of the succeeding year x x x (emphasis supplied).”
12.
Second Paragraph of Section 222, Assessment of Property Subject to Back
Taxes, Local Government
Code:
“Section 222. Assessment of Property Subject to Back Taxes. – x x x
If such taxes are paid on or before the end of the quarter
following the date the notice of assessment was received by the owner or
his representative, no interest for delinquency shall be imposed thereon;
otherwise, such taxes shall be subject to an interest at the rate of two percent (2%) per month or a fraction
thereof from the date of the receipt of the assessment until such taxes are
fully paid. (Emphasis supplied)”.
13.
Section 226, Local Board of Assessment Appeals, Local Government Code:
“Section 226. Local Board of Assessment Appeals. – Any owner or
person having legal interest in the property who is not satisfied with the
action of the provincial, city or municipal assessor in the assessment of his
property may, within sixty (60) days from
the date of receipt of the written notice of assessment, appeal to the Board of
Assessment Appeals of the province or city by filing a petition under oath
in the form prescribed for the purpose, together with copies of the tax
declarations and such affidavits or documents submitted in support the appeal”.
(Emphasis supplied).
14.
Section 246, Date of Accrual of Tax, Local Government Code:
“Section 246. Date of Accrual of
Tax. – The real property tax for any year shall accrue on the first day of
January and from date it shall constitute a lien on the property which shall be
superior to any other lien, mortgage, or encumbrance of any kind whatsoever,
and shall be extinguished only upon the payment of the delinquent tax”.
15.
Section 252,
Payment Under Protest, Local Government Code:
“Section 252. Payment Under
Protest. – (a) No protest shall be
entertained unless the taxpayer first pays the tax. There shall be annotated on the tax receipts
the words “paid under protest”. The protest in writing must be filed within
thirty (30) days from payment of the tax to the provincial, city treasurer or
municipal treasurer, in the case of a municipality within Metropolitan
Manila Area, who shall decide the protest within sixty (6o) days from receipt”
(Emphasis supplied).
16.
Section 276. Condonation or Reduction of Real Property Tax
and Interest,
Local Government Code:
“Section 276. Condonation or Reduction
of Real Property Tax and Interest. – In case of a general failure of crops
or substantial decrease in the price of agricultural or agri-based products, or calamity in any province, city or
municipality, the sanggunian concerned, by
ordinance passed prior to the first (1st) day of January of any
year and upon recommendation of the Local Disaster Coordinating Council, may condone or reduce, wholly or partially,
the taxes and interest thereon for the succeeding year or years in the city or
municipality affected by the calamity”. (Emphasis supplied).
VII. THE FACTS
OF THE CASE
X X X .
IX. DISCUSSION
41.
The abovelisted
assigned errors are discussed separately
discussed in the following paragraphs.
IX.A. The
appellants were deprived of “due process” in the reclassification of the
subject parcels of land
42.
Except for
the assessment for the improvements, all the rest of the other assessments on parcel of land were already
previously assessed as “agricultural
lands”.
43.
In fact, as
discussed hereinabove, the real estate taxes therefor had been previously paid in full up to the whole year of 2012. (See Tax
Clearances, attached hereto as Annex
”J”, with submarkings).
44.
The questioned tax
declarations reclassified the previous tax declarations of the same parcels of
land from “agricultural” to “commercial”
lands, allegedly using the “actual
use” method of assessment.
45.
The appellee
Municipal Assessor violated the constitutional right of the appellants to “due
process” in having UNILATERALLY and WITHOUT COORDINATION and CONSULTATION with
them made the subject “Notices of Assessments”, dated February 3, 2012 and
issued the accompanying Tax Declarations that reclassified the subject parcels
of land from “agricultural” to commercial.
46.
Records will
bear out that the appellants were even advanced
in the payment of the real estate taxes
for the subject parcels of land.
47.
The
appellee Municipal Assessor and/or his authorized representative ought to have coordinated
with the appellants in the reclassification of the subject parcels of land, especially
with respect to the proper identification
of the different properties as well as which parts of the said parcel s of land are
actually being used as resort.
48.
Moreover, the reclassification of the subject parcels
of land to “commercial” was not indicated and appropriate given that the
Sanggunian Bayan of XXX, XXX, had just approved on January 16, 2012 under Resolusyon Blg. 2012-19 the reclassification
from “Forest Zone” to “Parks, Recreation, and Tourism Zone the 20.178
hectares located in XXX, XXX, in favor of the XXX upon the request of one XXX.
This precedent applies to the appellant XXX, which is a tourism enterprise of
the same classification as XXX. (See Annexes
“BB” and BB-1”, supra, Resolusyon Blg. 2012-19 and Ulat ng Lupon, dated
January 16, 2012).
49. The UNILATERAL
reclassification by the appellee Municipal Assessor caused the following
unfavorable consequences:
49.1. It subjected the all the
subject parcels of land containing a total area of 157,325 square meters of 15.7325 hectares as commercial, when in truth
and in fact only about 3.7 hectares
thereof is actually used for resort facilities and activities.
49.2. It subjected the
appellants to a very huge real estate tax obligation that is grossly unreasonable and confiscatory in
nature and which would surely mean the total
extinction of XXX RESORT by reason of huge losses caused by inequitable
taxes.
49.3. In the assessment of the
improvements on some parts of the subject parcels of land, the Municipal Assessor of XXX failed to
consider the fact that the resort facilities of the appellant XXX RESORT were TOTALLY DESTROYED by Typhoon Ondoy in 2009
and that the rehabilitation of which were
only completed at the end of 2011.
50. The worst part of the
situation was that the appellee Municipal Assessor tried to extort money from the representative of the appellants
which is now the subject of a pending
criminal and administrative against him before the Office of the Ombudsman.
51. If only the appellee
Municipal Assessor had properly and in good faith coordinated and consulted
with the appellants on the reclassification of the subject parcel of land as
well as on the initial assessment of the improvements
on some of the subject parcels of
land, the unfortunate untoward incidents abovelisted could have been avoided.
52. It bears stressing that
the appellants are not delinquent and have never been delinquent all in
the payment of real estate taxes on the subject parcels of land. In fact, the real estate taxes for the
subject parcel of land has previously been paid
in advance up to the end of the year 2012.
IX. B. Section
204 of the Local Government Code on the declaration of
real property by the assessor is INAPPLICABLE:
53.
Although Section
204, Declaration of Real Property by the Assessor, Local Government Code, provides that “when any person, natural
or juridical, by whom real property is required to be declared under Section
202 hereof, refuses or fails for any reason to make such declaration within the
time prescribed, the provincial, city or municipal assessor shall himself
declare the property in the name of the defaulting owner, if known, or against
an unknown owner, as the case may be, and shall assess the property for
taxation in accordance with the provision of this Title”, the said Section 204 of the Local Government
Code can no longer apply in the case at
bar on the following arguments:
·
The subject
parcels of land were already subject
to real estate taxation;
·
The questioned assessments
were not intended to “declare” the
subject parcels of land for taxation purpose
but to “reclassify” the subject
parcels of land from “agricultural” to “commercial”.
·
The real estate
taxes for the subject parcels of land were already paid in advance up to the
full year 2012.
IX.C. Not all
of the parcels of land subjected to the “reclassification from agricultural to commercial” are “actually used for commercial
purposes”. Only those actually used for commercial purposes,
for argument’s sake, ought to be reclassified from agricultural to
commercial. There ought to be created an
ad hoc committee that shall do an truly accurate and reliable actual inspection
to determine and identify which parcel/s of land ought to be “reclassified as
commercial” and the parts thereof to be reclassified and measured as to the size for reclassification
purposes.
54.
The appellee
Municipal Assessor will agree that not
all of the subject 15.7325 hectares of land covered by the questioned subject
tax declarations are being presently developed and used for resort
facilities. Only 3.7 hectares, more or less, which is an indicative figure and
subject to the results of the requested ocular re-inspection requested hereinabove,
are actually developed and used for commercial
resort facilities and activities.
55.
The rest of
the remaining subject parcels of land
measuring about 12.0 hectares ought
to be restored back to their former
(and true) classification as agricultural
lands. (These parcels of lands were unjustly and inaccurately reclassified from agricultural to commercial under
the February 3, 2012 Notices of Assessment and accompanying Tax Declarations
issued by the Municipal Assessor of XXX).
56.
If the
abovementioned gross mistake is allowed to proceed, the amount of real estate
taxes due will be very huge,
unreasonable, and confiscatory which
will surely result in the total extinction of the Resort as a business
enterprise and which will, further, create unintended economic, labor, and
policy problems to the Municipality of XXX (and the Province of XXX, for that
matter) in terms of poor revenues, unemployment of its own people, negative social
and political image as a town that is “unfriendly
to business” (which may create fears in the hearts of investors),
diminished external investments from serious businessmen like the herein
appellants, and the like.
57.
To verify which
parcel/s of land and what part/s thereof may be reclassified from agricultural
to commercial, there ought to be an accurate, reliable, fair, and unbiased ocular
inspection of the subject parcels of land by an “AD HOC COMMITTEE” duly constituted
for the purpose, subject to notice to and participation of the appellants.
IX.D. For
argument’s sake only, the Notices of Assessment , dated February 3, 2012,
and received by the appellants on the
same day February 3, 2012 were made after the first day of January 2012,
hence the reassessment, if valid and legal, must take effect on the first day
of January 2013 (Section 221, LGC), especially that the real estate taxes for
2012 had already been paid.
58.
Section 221,
Date of Effectivity of Assessment or Reassessment of the Local
Government Code is again quoted
hereunder for ready reference, viz:
“Section 221. Date of Effectivity of Assessment or
Reassessment. – All assessments or reassessments made after the first (1st)
day of January of any year shall take effect on the first (1st) day
of January of the succeeding year x x x (emphasis supplied).”
59.
It is readily seen on the face of the subject
“Notices of Assessment”, dated
February
3, 2012, that they were made after the 1st day of January 2012,
having been issued on February 3, 2012
and received by the appellants on the same day February 3, 2012.
60.
Hence, the said
re-assessments ought to be effective yet on the 1st day of January 2013, pursuant to the express
provision of Section 221.
IX.E. No
penalties ought to have been charged yet on the assessment as the
effectivity therefor is January
2013 yet.
61.
The appellants noted that they were charged
and were made to pay the
following penalties
for the first Quarter of 2010, in the
total amount of
P132,152.16, viz:
X X X.
62.
There should be
no penalties as the reclassification
of the subject parcels of land are yet
to be effective on January 1, 2013. (Section 22, Par. 2 of the Local
Government Code).
63.
The
imposable real estate taxes are still due
on the day following the close of the
quarter following the receipt of the notice of assessment pursuant
to the second paragraph of Section 222 of the Local Government Code. In this case, the assessment are to be effective on January 1,
2013. Hence, earliest, the deadline for the payment of the real estate taxes will be on April 2013. The penalties were wrongly charged and ought
to be refunded or applied to future real
estate taxes due.
IX.F. Improvements
in the resort just got recently restored in 2011 from the devastation caused by
Typhoon Ondoy and should not be taxed retroactive to 2010.
The improvements were re-built and completed only in 2011.
64.
It is a well-known phenomenon that Luzon was
devastated by Typhoon Ondoy and other
typhoons from October 2009 and onwards.
The resort facilities of appellant XXX RESORT were TOTALLY DESTROYED by landslides of rocks,
logs, and soil that were eroded and/or
flowed down the nearby hills, mountains, streams and rivers.
65.
Such rehabilitation of the resort facilities
of appellant XXX RESORT took THIRTY
MILLION PESOS (P30 Million) in capital
investments and was completed only at the end
of 2011.
66.
It is, therefore,
erroneous, unjust, inequitable, and without factual and legal bases to subject
to real estate taxes the resort
facilities of the appellant XXX RESORT that were TOTALLY
DESTROYED during the Typhoon Ondoy in October 2009 and which got
rehabilitated only in the end of 2011.
67.
The payments of
real estate taxes, in principal amounts and in penalties, are
IMPROPER and ought to be REFUNDED
and/or APPLIED TO FUTURE REAL
ESTATE TAXES DUE.
IX.G. The tax
declarations are null and void as they were approved by an
unauthorized person, the Tax Mapper XXX XXX.
68.
The subject tax
declarations were “approved” by Tax
Mapper XXX XXX. The appellants respectfully question his authority to sign the
subject tax declarations. Hence, the
subject tax declaration are null and void for having been co-signed by a person
without authority to do so.
69.
The appointment of Engr. XXX made reference to
RA No. 9646,
known as
the "Real Estate Service Act of the Philippines" but it did not
explain the reason for
and the relevance of such a reference to RA No. 9646
on the face of his
appointment paper. (See Annex “W”,
supra).
70.
Under Section 3 of RA No. 9646 (approved by the
President on June 29,
2009),
the following terms are defined:
“x x x.
(b) "Assessor" refers to an official in the local
government unit, who performs appraisal and assessment of real
properties, including plants, equipment, and machineries, essentially
for taxation purposes. This definition also includes assistant assessors.
X x x.
(g) "Real estate service practitioners" shall refer to
and consist of the following:
X x x.”
(3)
Real estate assessor — a
duly registered and licensed natural person who works in a local
government unit and performs appraisal and assessment of real properties,
including plants, equipment, and machineries, essentially for
taxation purposes.
X x x.”
71.
There is no
showing that the signatories to the questioned tax declarations and notices of
assessment in the persons of XXX XXX and XXX XXX have duly qualified, licensed
and registered by and with the Professional
Regulatory Board of Real Estate Service, hereinafter referred to as the
Board, under the supervision and administrative control of the Professional
Regulation Commission (PRC), as mandated by RA No. 9646, thus:
“x x x.
SEC. 12. Licensure Examination. - Every
applicant seeking to be registered and licensed as a real estate service
practitioner, except a real estate salesperson, shall undergo an examination as
provided for in this Act. Examinations for the practice of real estate service
in the Philippines shall be given by the Board at least once every year in such
places and dates as the Commission may designate.
X x x.
SEC. 17. Issuance of the Certificate of
Registration and Professional Identification Card. - A certificate of
registration shall be issued to examinees who pass the
licensure examination for real estate service subject to payment of fees
prescribed by the Commission. The certificate of registration shall bear the
signature of the chairperson of the Commission and the chairperson and the
members of the Board, stamped with the official seal of the Commission,
indicating that the person named therein is entitled to practice the
profession with all the benefits and privileges appurtenant thereto. This
certificate of registration shall remain in full force and effect until revoked
or suspended in accordance with this Act.
A professional identification card bearing the registration
number, date of issuance and expiry date, duly signed by the chairperson
of the Commission, shall likewise be issued to every registrant upon
payment of the required fees. The professional identification card shall be
renewed every three (3) years and upon satisfying the requirements of the Board
such as, but not limited to, attendance in the CPE program.
SEC. 18. Refusal to Register. - The Board
shall not register and issue a certificate of registration to any successful
examinee who has been convicted by a court of competent jurisdiction of any
criminal offense involving moral turpitude or has been found guilty of immoral
or dishonorable conduct after investigation by the Board, or has been found to
be psychologically unfit.
SEC. 19. Revocation or Suspension of the
Certificate of Registration and the Professional Identification Card
or Cancellation of Special/Temporary Permit. - The Board
may, after giving proper notice and hearing to the party
concerned, revoke the certificate of registration and the professional
identification card, or cancel the special/temporary permit of a real estate
service practitioner, or suspend him/her from the practice of the profession on
any of the following instances hereunder:
(a) Procurement of a certificate of registration
and/or professional identification card, or special/temporary permit
by fraud or deceit;
(b) Allowing an unqualified person to advertise or
to practice the profession by using one's certificate of
registration or professional identification card, or special/temporary
permit;
(c) Unprofessional or unethical conduct;
(d) Malpractice or violation of any of the provisions of
this Act, its implementing rules and regulations, and the Code
of Ethics and Responsibilities for real estate service
practitioners; and
(e) Engaging in the practice of the profession during the
period of one's suspension.
SEC. 20. Registration Without Examination, - Upon application
and payment of the required fees, the following shall be registered, and shall
be issued by the Board and the Commission a certificate of registration
and a professional identification card without
taking the prescribed examination:
X x x.
(b) Assessors and appraisers who, on the date of
the effectivity of this Act, hold permanent appointments and are
performing actual appraisal and assessment functions for the last five (5)
years, have passed the Real Property Assessing Officer (RPAO) examination
conducted and administered by the Civil Service Commission (CSC) in
coordination with the Department of Finance (DOF), and have undertaken
relevant CPE to the satisfaction of the Board; and
(c) Assessors and appraisers who, on the date of
the effectivity of this Act, hold permanent
appointments and have at least ten
(10) years actual experience in real property appraisal or assessment
and have completed at least one hundred twenty (120) hours of accredited
training on real property appraisal conducted by national or
international appraisal organizations or institutions/entities recognized
by the Board and relevant CPE to the satisfaction of the Board.
Those falling under
categories (b) and (c) shall register with the Board after they shall have
complied with the requirements for registration as real estate
appraisers: Provided, That those seeking to be licensed to a
new credential level shall be required to take the pertinent
licensure examination.
Those so exempt under the aforementioned categories shall
file their application within two (2)
years from the effectivity of this Act: Provided, That
the renewal of the professional identification card is subject to the
provisions of Section 17 hereof.
X x x.
SEC. 25. Oath. — All successful examinees
qualified for registration and all qualified applicants for registration
without examination as well as accredited salespersons shall be required
to take an oath before any member of the Board or any officer of the Commission
duly authorized by the Commission to administer oaths prior to entering into
the practice of real estate service in the Philippines.
X x x.
SEC. 28. Exemptions from the Acts Constituting the
Practice of Real Estate Service. - The provisions of this Act and
its rules and regulations shall not apply to the following":
X x x.
(e) Public officers in the performance of their official
duties and functions, except government assessors and appraisers.
SEC. 29. Prohibition Against the Unauthorized
Practice of Real Estate Service. - No person shall practice or
offer to practice real estate service in the Philippines or offer
himself/herself as real estate service practitioner, or use the title, word,
letter, figure or any sign tending to convey the impression that one is a real
estate service practitioner, or advertise or indicate in any manner whatsoever
that one is qualified to practice the profession, or be appointed as real
property appraiser or assessor in any national government entity or local
government unit, unless he/she has satisfactorily passed the licensure
examination given by the Board, except as otherwise provided in this Act,
a holder of a valid certificate of registration, and
professional identification card or a
valid special/temporary permit duly issued to him/her by the
Board and the Commission, and in the case of real estate brokers and private
appraisers, they have paid the required bond as hereto provided.
SEC. 30. Positions in Government Requiring the
Services of Registered and Licensed Real Estate Service
Practitioners. - Within three (3) years from the effectivity of
this Act, all existing and new positions in the national and local governments,
whether career, permanent, temporary or contractual, and primarily
requiring the services of any real estate service practitioner, shall be
filled only by registered and licensed real estate service practitioners.
All incumbent assessors holding permanent
appointments shall continue to perform their functions without need
for re appointment and without diminution of status, rank and salary
grade, and shall enjoy security of tenure. However, they may not be promoted to a higher
position until they meet the qualification requirements of that higher position
as herein prescribed. Nothing in this Act shall be construed to reduce any
benefit, interest, or right enjoyed by the incumbents at the time of the
enactment of this Act. The appointing authority shall exercise his power
to appoint the assessor in accordance with the provisions of this Act only when
a vacancy occurs.
X x x.”
72.
It must be
noted that Sec. 38 of RA No. 9646 require all assessors (real estate service practitioners)
“x x x to indicate the certificate of registration, professional identification
card, PTR number, and APO receipt number, and the date of issuance and the
duration of validity on the documents he/she signs, uses or issues in
connection with the practice of his/her profession”. The
records of the case at bar show that the questioned tax declarations signed by XXX
and XXX did not indicate their respective “certificate of registration,
professional identification card, PTR number, and APO receipt number, and
the date of issuance and the duration of validity”.
In
this regard, perhaps, the said appellees must be reminded of the
Sec. 39 (penal provisions) of RA No. 9646, which commands that –
“x x x. Any violation of this Act, including violations of
implementing rules and regulations, shall be meted the penalty of a fine of not
less than One hundred thousand pesos (P100,000.00) or imprisonment of
not less than two (2) years, or both such fine and imprisonment upon the
discretion of the court. In case the violation is committed by an unlicensed
real estate service practitioner, the penalty shall be double
the aforesaid fine and imprisonment.
X x x.”
Note: Sec.. 44 of RA No. 9646 (Repealing Clause) has modified, inter alia, Sections 472 and 473 (qualifications and
duties of assessors) of the Local Government Code of 1991 (Republic Act
No. 7160) and the pertinent provisions of the Civil Service Law. All laws,
decrees, executive orders, department or memorandum orders and other
administrative issuances or parts thereof which are inconsistent with the
provisions of RA No. 9646 were modified, superseded or repealed accordingly.
IX.H. The real estate tax payments made on the same parcels of land for the
year 2012 ought to be deducted from the
real estate taxes once determined with finality to be due.
73.
As repeatedly
discussed hereinabove, the appellants already paid the real estate taxes for
the subject parcel of land for the full year of 2012 as proved in the attached
Tax Clearances (Annexes “J”, with
submarkings, supra).
74.
The said 2012
advance payments by the appellants in real estate taxes for the
same subject parcels of land ought to be deducted
from the real estate taxes to be determined
as payable upon finality of the decision/s in this action/appeal/protest.
IX.I. The
double payments for 2010 made on April 24, 2012 ought to be refunded or applied to future real estate taxes due as
the reclassification ought to be effective yet in January 2013, subject to the
fact that reclassification ought to be limited only to the areas actually used
for commercial purposes. The appellants had paid in advance the real estate taxes
up to full year 2012.
75.
The appellants had
previously paid the real estate taxes due on the subject parcels of land
up to 2012. The same appellants also previously
paid the real estate taxes for the years 2010 and 2011. The same appellants
were charged and were made to pay again real estate taxes for the
First Quarter of 2010. This means that
the appellants paid twice the real estate
taxes for the First Quarter of 2010.
76.
We humbly
stress: The appellants ought to be refunded their said real estate payments for
the First Quarter of 2010 as the same were already paid. It ought to be
stressed that the taxes assessed on the said parcel of land by way of
reclassification are yet to be effective
on January 1, 2013 and still due on April 1, 2013.
IX.J. The
real estate tax payments as well as the payments for penalties for 2010
made on April 24, 2012 imposed on the real estate
taxes on the improvements ought to be refunded or applied to future real estate
taxes as the assessment on the said improvements are not correct considering
that the rehabilitation of the said improvements were only completed in the end
of 2011.
77.
The real estate
tax payments as well as the payments for penalties for 2010
made on April 24, 2012
for the First Quarter of 2010 for IMPROVEMENTS are not owing yet on the ground that the said improvements were TOTALLY
DESTROYED
and were rehabilitated only at the end
of 2011.
78.
The real estate
tax payments (principal and penalties) for the said improvements ought to be
refunded and/or applied to future real estate taxes due, in the interest
of fairness and justice.
IX.K. The
real estate tax payments as well as the payments for penalties for 2010
made on April
24, 2012 imposed on the real estate taxes on the subject parcels of land ought
to be refunded or applied to future real estate taxes as the re-assessment on
the said subject of parcel of land are
yet to be effective on January 1, 2013.
79.
The real estate
tax payments as well as the payments for penalties for 2010
made on April 24, 2012
for the First Quarter of 2010 (payment made under protest) for the same subject
parcel of land are not owing yet on the following
grounds:
·
The
reclassification will still be effective on January
1, 2013;
·
The real estate
taxes thereon will still be due on April
1, 2013, at the earliest;
·
The real estate
taxes thereon for 2010 were already paid.
80.
Hence, the real estate tax payments
(principal and penalties) for the said
parcel of land for the First
Quarter of 2010 ought to be refunded
and/or applied to future real estate
taxes due.
X. MOTION
TO SET HEARING/S FOR THE RECEPTION OF
APPELLANTS EVIDENCE
81.
The instant
appeal involves considerable factual issues that need to be proved.
82.
There are voluminous
documentary evidence attached to the instant appeal that need to be
authenticated.
83.
There may be clarificatory questions that the
members of the Local Board of Assessment Appeals (LBAA), constituted for the
purpose of the instant appeal, may want to ask of the appellants and their
witnesses.
84.
In order to aid
the members of the LBAA, the appellants respectfully move and pray that a
hearing/s for the reception of appellants' evidence be set.
XI. RELIEF
WHEREFORE, premises
considered, it is respectfully prayed that:
1.
The questioned handwritten Notices of Assessment, both dated February 3, 2012 (copies of which
are attached hereto as Annexes “C” and
“C-1” hereof issued by Mr. XXX G. XXX, Municipal Assessor of XXX, XXX, be
RECALLED, NULLIFIED, and SET ASIDE,
2.
The questioned Tax Declarations issued by the Municipal
Assessor of XXX, XXX, Mr. XXX XXX, and co-signed by Tax Mapper XXX R. XXX
(copies of which are attached hereto as Annexes
“D” to “D-15”) be RECALLED, NULLIFIED, and SET ASIDE.
3.
The questioned “NOTICES
OF ASSESSMENT AND TAX BILL” (REAL PROPERTY TAX ORDER OF PAYMENT), dated April
12, 2012 (copies of which are attached hereto as Annexes “D” to “D-1”) in the amount of FIVE MILLION TWO HUNDRED
SIXTY-SEVEN THOUSAND EIGHT HUNDRED FIFTY-NINE & 36/100 PESOS (P5,267,859.36); and the subsequent “Notices of Assessment and Tax Bill”, dated
April 19, 2012 (attached as Annexes
“G” to “G-1”) be RECALLED,
NULLIFIED, and SET ASIDE.
4.
The real estate
tax payments and the penalties thereon
made UNDER PROTEST on April 24, 2012 for the improvements in the amount P105,869.40
be REFUNDED and/or APPLIED to future real estate taxes determined to be due;
5.
The real estate
tax payments and the penalties thereon made on April 24, 2012 for the same
parcels of land in the amount of P368,235.16 be REFUNDED and/or APPLIED to future real estate taxes determined to be
due;
6.
Application
against the real taxes due thereon of all advance real estate tax payments made
by the appellants for the year 2012 for the subject properties, including those
paid as requirement for the instant appeal.
7.
Creation of an ad hoc committee to conduct a new ocular
inspection for the purpose of determining the appropriate, correct, fair and
just classification (including reclassification when warranted) and assessment
of the subject real estate properties (land and improvements thereon) of
the appellants as well as the
determination of the appropriate real estate taxes thereon for the years
covered, subject to due notice to and
participation by the appellants.
8.
Hearing/s be
set for the reception of appellants' evidence.
9.
Appellants be
allowed to post a SURETY BOND in lieu of cash payments for the real estate
taxes due for the coming quarters pendente
lite to assure/guarantee the appellants’ full settlement all real estate
taxes that may be finally determined by the proper authorities/tribunals to be
due and payable upon the final resolution of the appeals and other actions
relative thereto. (Note: The rules of
procedure of the CENTRAL BOARD OF ASSESSMENTY APPEALS, as posted on its
website, allow the posting by the appellants of a SURETY BOND pendete lite and on appeal).
FURTHER, the appellants respectfully pray for such
and other reliefs as may be deemed just and equitable in the premises.
Las Pinas City, May 18, 2012.
LASERNA CUEVA-MERCADER
LAW OFFICES’
Counsel
for Appellants
Unit
15, Star Arcade, C.V. Starr Ave.
Philamlife
Village, Las Pinas City 1740
Tel./Fax
No. 8462539, 8725443
Email
– lcmlaw@gmail.com
URL
– lcmlaw.multiply.com
Facebook.com/lasernacuevamercaderlawoffices
Twitter.com/lcmlaw_ph
MANUEL
J. LASERNA JR.
Roll
No. 33640, 4/27/85
IBP
Lifetime Member No. 1907
IBP
Leyte Chapter
MCLE
No. IV- 1326, 2/3/11
PTR
No. 10288207, 1/18/12, Las Pinas City
MYRNA
N. CUEVA-MERCADER
Roll
No. 33520, 4/27/85
IBP
Lifetime Member No. 1906, IBP PPLM Chapter
MCLE
No. IV- 1325, 2/3/11
PTR
No. 10288204, 1/18/12, Las Pinas City
X
X X
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