DOJ approves tax evasion raps vs Corona

see  - DOJ approves tax evasion raps vs Corona


"x x x.

MANILA, Philippines [UPDATED] - The Department of Justice on Thursday, May 2, recommended the filing in court of tax evasion charges against dismissed Chief Justice Renato Corona.

The DOJ found probable cause to charge Corona with failing to both pay P120.5 million in taxes and file his income tax return for 6 years - 2003, 2004, 2005, 2007, 2008 and 2010 - for the income he got outside of his compensation as a Supreme Court justice in the said years.

The charges are based on a Bureau of Internal Revenue case that was filed with the DOJ in August 2012.

The BIR scrutinized Corona's statement of assets, liabilities and networth submitted to the impeachment court in 2012. Corona became the subject of impeachment after he was accused by the House of Representatives of failing to truthfully declare P42.1 million-worth of properties in his 2004, 2005 and 2009 SALN and for also not disclosing P180 million in peso and dollar deposits.

It would be the first court case against Corona after he was relieved from his post last May 29 following his failure to declare his bank deposits. The Senate, sitting as an impeachment court, found him guilty of culpable violation of the Constitution.

Corona was accused of violating section 254 and 255 of the National Internal Revenue Code from 2003 to 2005, 2007, 2008 and 2010.

The BIR said Corona underdeclared his the value of his cash assets from 2003-2010 by 30% or by P546 million and his real estate properties by P17.3 million. He also failed to declare properties worth P12.7 million in his SALN. According to the BIR's re-computation of Corona's assets, the dismissed chief justice's networth from 2002-2010 is P576.7 million. Corona only declared a networth of P108.7 million for the said period.

Corona's defense

Corona said, however that he could not expect any "fairness" from De Lima, who testified against him in the impeachment trial.

"Was there ever any doubt about the outcome of this charade? My savings are the result of 45 years of diligent work in the private and public sectors," he said.

"I do not owe any tax liability to the government. I have never in all my life received even a single notice of deficiency assessment from the BIR. The contrived claims of the BIR will fall falt on its face because they are without legal, factual moral bases and are just part of the continuing political harassment and persecution that they have been incessantly inflicting on me."

Corona said the BIR erred in charging him tax evasion because it failed to take into account that part of his funds in his bank accounts came from family members. He added he was deprived of his right to due process because he was not given the opportunity to defend himself during the BIR's preliminary and formal investigation in 2012.

He also raised that the filing of criminal charges against him in relation to the taxable years of 2002-2007 has also already prescribed and that the waiver he signed allowing government to look at his bank accounts has lost its legal force after he was impeached.

He also said that the method used by BIR was faulty - the tax agency used the Net Worth Method, where "Increase in net worth plus non-deductible expenses, minus non-taxable receipts, equals taxable net income." (See article of PCIJ explaining the said method: "How to track, crack cases").

The DOJ said, however that Corona failed to produce evidence that money in his bank accounts came from family members. "On the other hand, the BIR sufficiently proved that there is probable cause to believe that the increase in his net worth came from sources which are taxable," the DOJ said.

"As a member of the Supreme Court at that time, he is prohibited from obtaining compensation from other sources, yet his bank accounts alone are grossly disproportionate to his earnings as a Justice of the High Court."

The prosecution panel also disagreed with him that his right to due process was violated. They said the participation of the respondent in the preliminary investigation is not required.

As to the period of prescription, the DOJ clarified that it starts not at the commission of the crime, but at the discovey of the said commission of the crime.

The panel also said the Net Worth method can be used if "there is no method regularly employed by the taxpayer in the keeping of his books."

The DOJ said there is a pattern of "underreporting large amounts of income," adding a case against Corona must be filed at the Court of Tax Appeals. - Rappler.com

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JURIST - Paper Chase: Florida top court rules warrantless cell phone searches unconstitutional

see - JURIST - Paper Chase: Florida top court rules warrantless cell phone searches unconstitutional


"x x x.

[JURIST] The Florida Supreme Court [official website] ruled [opinion, PDF] Thursday that police need a warrant to search a defendant's cell phone at the time of arrest. The court ruled 5-2 that officers were permitted to confiscate the defendant's cell phone, but that they should have obtained a warrant before looking at pictures on the phone. Justice Lewis wrote for the majority, "[w]e refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant simply because the cellular phone device which stores that information is small enough to be carried on one’s person." The ruling overturns the decision of the 1st District Court of Appeal, which found the search of the phone to be legal.

Courts have been split on this issue. In December Massachusetts Supreme Judicial Court [official website] ruled that police do not need a warrant [JURIST report] to search a suspect's cell phone once the suspect been lawfully arrested. In March of last year the US Court of Appeals for the Seventh Circuit [official website] ruled that a warrantless search of a suspect's cell phone to collect its phone number does not constitute a violation [JURIST report] of Fourth Amendment [Cornell LII backgrounder] protections against unreasonable search and seizure. In 2011 theSupreme Court of California [official website] ruled that law enforcement officers can legally search [JURIST report] text messages on a suspect's cell phone without a warrant incident to a lawful custodial arrest.

x x x."

JURIST - Paper Chase: Maryland governor signs bill repealing death penalty

see - JURIST - Paper Chase: Maryland governor signs bill repealing death penalty


"x x x.

[JURIST] Maryland Governor Martin O'Malley [official website] on Thursday signed into law [press release] a bill [SB 276 materials] to repeal the death penalty. The legislation, which makes Maryland the eighteenth US state to repeal the death penalty, was approved by the state legislature [JURIST report] in March. Prior to the bill, Maryland's capital punishment laws were among the most restrictive in the country. Senate Bill 279 [text, PDF], which was signed into law in 2009, prevented a judge from imposing the death penalty unless one of three factors existed: DNA evidence, a videotaped confession or a videotaped murder. Even before the restrictions were passed, Maryland had only executed five people since 1976.

O'Malley announced in January that he would file legislation to repeal capital punishment [JURIST report] in Maryland, stating that the death penalty is expensive and ineffective. In 2008, the governor created [JURIST report] the Maryland Commission on Capital Punishment [official website] after an unsuccessful attempt[JURIST report] to repeal the death penalty in 2007. Outside of Maryland, Connecticut[JURIST report] became the seventeenth state to abolish the death penalty and the fifth to do so in the previous five years. New Jersey, New Mexico, New York, and Illinois[JURIST reports] have all recently eliminated the death penalty, while 32 states retain its use, according to the Death Penalty Information Center [advocacy website]. However, California voters declined to repeal the death penalty [JURIST report] on the most recent ballot, with 47 percent of voters supporting the repeal last November.

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JURIST - Paper Chase: UN group: social protections key to ending child labor

see - JURIST - Paper Chase: UN group: social protections key to ending child labor


"x x x.

[JURIST] The UN International Labor Organization (ILO) [official website] on Monday released a report on child labor [text, PDF;press release] advocating social protections as the key to ending the practice. "[The] report contributes to a better understanding of the underlying economic and social vulnerabilities that generate child labour." Globally, the ILO estimates that at least 215 million children are in an adverse labor situation, with 115 million suffering the worst treatment including "practices akin to slavery, debt bondage, offering a child for prostitution, using a child for illicit activities and work that is harmful to health, safety or morals of children." To combat the problem, the ILO advocates the implementation of "social protection floors" in all countries to provide for the most basic needs of children. Further, the report highlights a number of programs currently showing success. For example, programs in Brazil and Cambodia have seen positive outcomes when linking cash transfers to families who actively support their children in education. In Guatemala, the report referenced a study that indicated that families where even one member of the household is covered by health insurance, there is a notable decrease in the likelihood of participation in the child labor markets.

In recent years, forced labor has been a growing subject of international attention, with particular reference to human trafficking. In February the ILO released a report estimating that 21 million people are subject to forced labor [JURIST report], which often includes human trafficking for labor exploitation, and identified solutions to address the issue. Commentators welcomed the report [JURIST op-ed], but criticized its lack of focus on the root cause of poverty. In January, the ILO released a report highlighting the vulnerability of domestic workers [JURIST report] worldwide. In June, the ILO released a report estimating that forced labor workers nearly doubled[JURIST report] worldwide from its 2005 estimate of 12 million. In November 2011, the UN criticized North Korea for allegedly abusing political prisoners in forced labor camps [JURIST report]. In August of the same year, the UN urged Thailand to combat forced labor [JURIST report], especially with regard to human trafficking.

x x x."

10 Legal Tips for Hiring a Contractor

see - 10 Legal Tips for Hiring a Contractor


"x x x.

Most contract disputes with building contractors and tradesmen arise because of lack of communication and misunderstandings about the work to be performed. Here are 10 things you can do to help minimize problems when you hire a contractor or tradesman.

1. ALWAYS check references. Request the names and phone numbers of the owners of the last three projects completed by the contractor, then phone the owners and ask them about their experience with the contractor.
2. If possible, visit at least one of the projects and closely inspect the detail work on the job. Sloppy detail work is a major warning sign.
3. Check with your local Better Business Bureau and ask for a complaint history on the contractor.
4. Ask to see the contractor’s license that authorizes the contractor to perform the work you want the contractor to perform, a copy of his or her insurance policy and bond.
5. ALWAYS get a detailed written estimate of the cost and scope of the work before agreeing to it.
6. ALWAYS incorporate the estimate into a concise, clearly worded agreement describing the work to be performed and the price that is signed by you and the contractor and includes a time frame for the work to be completed and a “hold back” provision that permits you to withhold a portion of the final payment until the work is completed and all governmental inspections are completed and passed.
7. If your agreement is on “cost plus” basis, demand copies of all invoices and insure they are marked “paid” before reimbursing the contractor for them.
8. ALWAYS describe any changes to the work in writing and include the description of the changes in the work and changes in the cost of the project. The document should be signed by both you and the contractor.
9. Inspect the work as it is being performed and compare it to the description in your agreement. The earlier you detect any problems in performance, the earlier you can correct them.
10. Your LegalShield provider law firm can assist you with all of these issues. Call your provider law firm before you sign a contract, whenever a problem arises or if you have any questions.

Source: Legal News Issue 6 Volume 2. April 2013
https://sites.legalshield.com/cp/newsletter/issue6_v2.html

The content of this newsletter is intended for general information purposes only, and is not legal advice. Readers should be aware that while certain principles outlined on this site may be similar to principles followed in their own state or province, laws can vary considerably. © Copyright 2013 LegalShield℠ One Pre-Paid Way, Ada, Oklahoma 74820

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February 2013 Philippine Supreme Court Decisions on Tax Law | LEXOTERICA: A PHILIPPINE BLAWG

see - February 2013 Philippine Supreme Court Decisions on Tax Law | LEXOTERICA: A PHILIPPINE BLAWG


"x x x.

Here are select February 2013 rulings of the Supreme Court of the Philippines on tax law:

National Internal Revenue Code; documentary stamp tax; issuance of promissory notes; persons liable for the payment of DST; acceptance.Under Section 173 of the National Internal Revenue Code, the persons primarily liable for the payment of DST are the persons (1) making; (2) signing; (3) issuing; (4) accepting; or (5) transferring the taxable documents, instruments or papers. Should these parties be exempted from paying tax, the other party who is not exempt would then be liable. In this case, petitioner Philacor is engaged in the business of retail financing. Through retail financing, a prospective buyer of home appliance may purchase an appliance on installment by executing a unilateral promissory note in favor of the appliance dealer, and the same promissory note is assigned by the appliance dealer to Philacor. Thus, under this arrangement, Philacor did not make, sign, issue, accept or transfer the promissory notes. It is the buyer of the appliances who made, signed and issued the documents subject to tax while it is the appliance dealer who transferred these documents to Philacor which likewise indisputably received or “accepted” them. Acceptance, however, is an act that is not even applicable to promissory notes, but only to bills of exchange. Under the Negotiable Instruments Law, the act of acceptance refers solely to bills of exchange. In a ruling adopted by the Bureau of Internal Revenue as early as 1995, “acceptance” has been defined as having reference to incoming foreign bills of exchange which are accepted in the Philippines by the drawees thereof, and not as referring to the common usage of the word as in receiving. Thus, a party to a taxable transaction who “accepts” any documents or instruments in the plain and ordinary meaning does not become primarily liable for the tax. Philacor Credit Corporation vs. Commissioner of Internal Revenue, G.R. No. 169899.  February 6, 2013.

National Internal Revenue Code; documentary stamp tax; issuance of promissory notes; persons liable for the payment of DST; Revenue Regulations No. 26 Revenue Regulations No. 26.  Section 42 of Revenue Regulations (RR) No. 26 issued on March 26, 1924 provides that the person using a promissory note can be held responsible for the payment of documentary stamp tax (DST). The rule uses the word “can” which is permissive, rather than the word “shall,” which would make the liability of the persons named definite and unconditional. In this sense, a person using a promissory note can be made liable for the DST if the person is: (a) among those persons enumerated under the law – i.e., the person who makes, issues, signs, accepts or transfers the document or instrument; or (2) if these persons are exempt, a non-exempt party to the transaction. Such interpretation would avoid any conflict between Section 173 of the 1997 National Internal Revenue Code and section 42 of RR No. 26 and make it unnecessary for the latter to be struck down as having gone beyond the law it seeks to interpret. However, section 42 of RR No. 26  cannot be interpreted to mean that anyone who “uses” the document, regardless of whether such person is a party to the transaction, should be liable, as this reading would go beyond section 173 of the 1986 National Internal Revenue Code, the law it seeks to implement. Implementing rules and regulations cannot amend a law for they are intended to carry out, not supplant or modify, the law. To allow RR No. 26 to extend the liability for DST to persons who are not even mentioned in the relevant provisions of the tax codes (particularly the 1986 National Internal Revenue Code which is the relevant law at that time) would be a clear breach of the rule that a statute must always be superior to its implementing regulations.  Philacor Credit Corporation vs. Commissioner of Internal Revenue, G.R. No. 169899. February 6, 2013.

National Internal Revenue Code; documentary stamp tax; assignment or transfer of evidence of indebtedness. Under Section 198 of the then 1986 National Internal Revenue Code, an assignment or transfer becomes taxable only in connection with mortgages, leases and policies of insurance. The list does not include the assignment or transfer of evidence of indebtedness; rather it is the renewal of these that is taxable. The present case does not involve a renewal, but a mere transfer or assignment of the evidence of indebtedness or promissory notes. A renewal would involve an increase in the amount of indebtedness or an extension of a period, and not the mere change in the person of the payee. The law has set a pattern of expressly providing for the imposition of documentary stamp tax on the transfer and/or assignment of documents evidencing certain transactions. Where the law did not specify that such transfer and/or assignment is to be taxes, there would be no basis to recognize an imposition. Philacor Credit Corporation vs. Commissioner of Internal Revenue, G.R. No. 169899. February 6, 2013.

National Internal Revenue Code; value added tax; 120-day period given by law to the Commissioner of Internal Revenue to grant or deny application for tax refund or credit mandatory and jurisdictional. Failure to comply with the 120-day waiting period violates a mandatory provision of law. It violates the doctrine of exhaustion of administrative remedies and renders the petition premature and thus without a cause of action, with the effect that the Court of Tax Appeals (CTA) does not acquire jurisdiction over the taxpayer’s petition. The charter of the CTA expressly provides that its jurisdiction is to review on appeal “decisions of the Commissioner of Internal Revenue (CIR) in cases involving xxx refunds of internal revenue taxes.” When a taxpayer prematurely files a judicial claim for tax refund or credit with the CTA without waiting for the decision of the CIR, there is no “decision” of the CIR to review and thus the CTA as a court of special jurisdiction has no jurisdiction over the appeal. The charter of the CTA also expressly provides that if the CIR fails to decide within “a specific period” required by law, such inaction shall be deemed a denial” of the application for a tax refund or credit. It is the CIR’s decision or inaction “deemed a denial,” that the taxpayer can take to the CTA for review. Without a decision or an “inaction xxx deemed a denial” of the CIR, the CTA has no jurisdiction over a petition for review. Commissioner of Internal Revenue vs. San Roque Power Corporation/Taganito Mining Corporation vs. Commissioner of Internal Revenue/Philex Mining Corporation vs. Commissioner of Internal Revenue, G.R. No. 187485/G.R. No. 196113/G.R. No. 197156. February 12, 2013.

National Internal Revenue Code; value added tax; 30-day period need not fall within the two-year prescriptive period. The 30-day period provided for under section 112 (C) of the National Internal Revenue Code (NIRC) within which to appeal the decision of the Commissioner of Internal Revenue  (CIR) to the Court of Tax Appeals  (CTA) need not necessarily fall within the two-year prescriptive period under section 112 (A) of the NIRC. First, section 112 (A) clearly states that the taxpayer may apply with the CIR for a refund or credit “within two (2) years,” which means at any time within two years. Thus, the application for refund or credit may be filed on the last day of the two-year prescriptive period and it will still strictly comply with the law. The two-year prescriptive period is a grace period in favor of the taxpayer and he can avail of the full period before his right to apply for a tax refund or credit is barred by prescription. Second, as held by the Court in the case of Commissioner of Internal Revenue v Aichi, the “phrase ‘within two years xxx apply for the issuance of a tax credit or refund’ refers to applications for refund/credit with the CIR and not to appeals made to the CTA.” Third, if the 30-day period, or any part of it, is required to fall within the two-year prescriptive period (equivalent to 730 days), then the taxpayer must file his administrative claim for refund or credit within the first 610 days of the two-year prescriptive period. Otherwise, the filing of the administrative claim beyond the first 610 days will result in the appeal to the CTA being filed beyond the two-year prescriptive period. Thus, if the taxpayer files his administrative claim on the 611^th day, the CIR, with his 120-day period, will have until the 731^st day to decide the claim. If the CIR decides only on the 731^st day, or does not decide at all, the taxpayer can no longer file his judicial claim with the CTA because the two-year prescriptive period (equivalent to 730 days) has lapsed. The 30-day period granted by law to the taxpayer to file an appeal before the CTA becomes utterly useless, even if the taxpayer complied with the law by filing his administrative claim within the two-year prescriptive period. Commissioner of Internal Revenue vs. San Roque Power Corporation/Taganito Mining Corporation vs. Commissioner of Internal Revenue/Philex Mining Corporation vs. Commissioner of Internal Revenue, G.R. No. 187485/G.R. No. 196113/G.R. No. 197156. February 12, 2013.

National Internal Revenue Code; value added tax; “excess” input VAT and “excessively” collected tax. Under Section 229 of the National Internal Revenue Code (NIRC), the prescriptive period for filing a judicial claim for refund is two years from the date of payment of the tax “erroneously, xxx illegally, xxx excessively or in any  manner wrongfully collected.” However, in a claim for refund or credit of “excess” input value-added tax (VAT) under Section 110 (B) and Section 112 (A) of the NIRC, the input VAT is not “excessively” collected as understood under Section 229. At the time of payment of the input VAT, the amount paid is the correct and proper amount. Under the VAT system, there is no claim or issue that the input VAT is “excessively” collected, that is, that the input VAT paid is more than what is legally due. The person legally liable for the input VAT cannot claim that he overpaid the input VAT by the mere existence of an “excess” input VAT. The term “excess” input VAT simply means that the input VAT available as credit exceeds the output VAT, not that the input VAT is excessively collected because it is more than what is legally due. Thus, the taxpayer who legally paid the input VAT cannot claim for refund or credit of the input VAT as “excessively” collected under Section 229. Commissioner of Internal Revenue vs. San Roque Power Corporation/Taganito Mining Corporation vs. Commissioner of Internal Revenue/Philex Mining Corporation vs. Commissioner of Internal Revenue, G.R. No. 187485/G.R. No. 196113/G.R. No. 197156. February 12, 2013.

National Internal Revenue Code; value added tax; equitable estoppel under section 246; Bureau of Internal Revenue Ruling. Bureau of Internal Revenue (BIR) Ruling No. DA-489-03 does provide a valid claim for equitable estoppel under section 246 of the National Internal Revenue Code (NIRC). BIR Ruling No. DA-489-03 expressly states that the “taxpayer-claimant need not wait for the lapse of the 120-day period before it could seek judicial relief with the CTA by way of Petition for Review.” Prior to this ruling, the BIR held that the expiration of the 120-day period is mandatory and jurisdictional before a judicial claim can be filed. There is no dispute that the 120-day period is mandatory and jurisdictional, and that the CTA does not acquire jurisdiction over a judicial claim that is filed before the expiration of the 120-day period. There are two exceptions to this rule. The first exception is if the CIR, through a specific ruling, misleads a particular taxpayer to prematurely file a judicial claim with the CTA. Such specific ruling is applicable only to such particular taxpayer. The second exception is where the CIR, through a general interpretative rule issued under section 4 of the NIRC, misleads all taxpayers into filing prematurely judicial claims with the CTA. In these cases, the CIR cannot be allowed to later on question the CTA’s assumption of jurisdiction over such claim since equitable estoppel has set in as expressly authorized under section 246 of the NIRC. A general interpretative rule issued by the CIR may be relied upon by taxpayers from the time the rule is issued up to its reversal by the CIR or the Court. Taxpayers should not be prejudiced by an erroneous interpretation by the CIR, particularly on a difficult question of law. BIR Ruling No. DA-489-03 is a general interpretative rule because it was a response to a query made, not by a particular taxpayer, but by a government agency tasked with processing tax refunds and credits, that is, the One Stop Shop Inter-Agency Tax Credit and Drawback Center of the Department of Finance. All taxpayers can rely on BIR Ruling No. DA-489-03 from the time of its issuance on December 10, 2003 up to its reversal by the Court in the case of Aichi on October 6, 2010, whether the Court held that the 120+30 day periods are mandatory and jurisdictional.Commissioner of Internal Revenue vs. San Roque Power Corporation/Taganito Mining Corporation vs. Commissioner of Internal Revenue/Philex Mining Corporation vs. Commissioner of Internal Revenue,G.R. No. 187485/G.R. No. 196113/G.R. No. 197156. February 12, 2013.

National Internal Revenue Code; documentary stamp tax; levied on the exercise of privileges not on obligations imposed by law. Documentary stamp tax (DST) is by nature an excise tax since it is levied on the exercise by persons of privileges conferred by law. These privileges may cover the creation, modification or termination of contractual relationships by executing specific documents like deeds of sale, mortgages, pledges, trust and issuance of shares of stock. The sale of Fort Bonifacio land was not a privilege but an obligation imposed by law which was to sell lands to fulfill a public purpose. To charge DST on a transaction which was basically a compliance with a legislative mandate would go against its very nature as an excise tax. Fort Bonifacio Development Corporation vs. Commissioner of Internal Revenue, G.R. Nos. 164155 & 175543. February 25, 2013.

National Internal Revenue Code; gross receipts tax; final withholding tax forms part of gross receipts. The amount of interest income withheld, in payment of the 20% final withholding tax, forms part of a bank’s gross receipts in computing the gross receipts tax on banks. “Gross Receipts” comprise the “entire receipts without any deduction.” Otherwise, if deductions were to be made, it would have been considered as “net receipts.” Moreover, the exclusion of the final withholding tax from gross receipts operates as a tax exemption which the law must expressly grant. In this case, petitioner failed to point to any specific provision of law allowing deduction, exemption or exclusion from its taxable gross receipts, of the amount withheld as final tax. China Banking Corporation vs. Commissioner of Internal Revenue, G.R. No. 175108. February 27, 2013.

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5 Things You Shouldn't Do After a Car Accident - Injured

see - 5 Things You Shouldn't Do After a Car Accident - Injured


"x x x.

Insurance and patience can solve many of your car accident woes, as well as remembering what not to do or say. Here are a few suggestions:

1. Do not leave the scene. After a possibly grisly accident, you may feel the impulse to get in a cab or a friend's car and just go home. Ignore that impulse, as fleeing the scene of an accident is a crime. In some cases it can be a felony, and you don't need to add criminal charges to your list of problems after an accident.
2. Do not start apologizing. Normally, it is a great custom to apologize to someone when you feel you might be at fault, but not after a car accident. A simple "Sorry, I wasn't paying attention" may turn into an admission of liability if the matter goes to court.
3. Do not lose your cool. Stomping around and shouting your favorite obscenities may feel great, but it will add ammunition to any potential case against you.
4. Do not talk with the other driver's insurance company or attorney. Odds are that the other parties in the accident will have their insurance companies and/or attorneys contact you to drill you for information about the accident. It's best to not speak with them about the incident. Take a deep breath and tell them to contact your insurance company or your attorney.
5. Do not jump on the first settlement offer. If the accident reaches a stage where the insurance companies and attorneys are discussing settlement, make sure not to just accept the first offer that comes your way. Consider each offer carefully in light of your expenses, damages or medical bills, and discuss it with your attorney before going forward.

Related Resources:

• Car Accident Checklist: 5 Things to Do at the Scene (FindLaw's Injured)
• Legal How-To: Filing a Minor Car Accident Claim (FindLaw's Injured)
• Is There a Statute of Limitations for Car Accidents? (FindLaw's Injured)
• Car Accident Lawyer in Los Angeles (CarAccidentsInLA.com)
• x x x."

IBP - rotation rule - automatic sucession by EVP as next Pres. - sc.judiciary.gov.ph/jurisprudence/2013/april2013/09-5-2-SC.pdf

see - sc.judiciary.gov.ph/jurisprudence/2013/april2013/09-5-2-SC.pdf

"x x x.


The Best Option: Open to All Regions

How then do we treat the turns of those who had already served in the
second rotational cycle? Shall we treat them as anomalies? As aberrant
developments, as Justice Brion puts it?

A remedy is to reconcile the conflicting decisions and resolutions with
nothing in mind but the best interest of the IBP. It appears from the
pleadings, however, that the differences are irresoluble.

 To avoid the endless conflicts, confusions and controversies which have been irritably plaguing the IBP, the solution is to start another rotational round, a new cycle, open to all regions. At any rate, all regions, after the election of Libarios, would be considered as already having its turn in the presidency. This is not to detract from the fact that under Section 47, as amended, and from the pertinent rulings, the position of EVP-IBP is the one being actually rotated, but as stated in the December 14, 2010 Resolution,71 it will enable the IBP “to start on a clean and correct slate, free from the politicking and the under handed tactics that have characterized the IBP elections for so long.”


Section 47 of the IBP
By-Laws should be further
amended

Whatever the decision of the Court may be, to prevent future wranglings and guide the IBP in their future course of action, Section 47 and Section 49 of the IBP By-laws should again be amended. Stress should be placed on the automatic succession of the EVP to the position of the president.

Surprisingly, the automatic succession does not appear in present Section 47, as ordered amended by the Court in the December 14, 2010 Resolution. It should be restored. Accordingly, Section 47 and Section 49, Article VII, are recommended to read as follows:



Sec. 47. Election of National President Executive Vice President. – The Integrated Bar of the Philippines shall have a President, an Executive Vice President, and nine (9) regional Governors. The Governors shall be ex-officio Vice President for their respective regions.

The Board of Governors shall elect the President and Executive Vice President from among themselves each by a vote of at least five (5) Governors. Upon expiration of the term of the President, the Executive Vice-President shall automatically succeed as President.

Each region, as enumerated under Section 3, Rule 139-A of the Rules of Court, shall have the opportunity to have its representative elected as Executive Vice-President, provided that, the election for the position of Executive Vice President shall be on a strict rotation by exclusion basis. A region, whose representative has just been elected as Executive Vice President, can no longer have its representative elected for the same position in subsequent elections until after all regions have had the opportunity to be elected as such. At the end of the rotational cycle, all regions, except the region whose representative has just served the immediately preceding term, may be elected for another term as Executive VicePresident in the new rotational cycle. The region whose representative served last in the previous rotational cycle may be elected Executive Vice-President only after the first term of the new rotational cycle ends, subject once more to the rule on exclusion.

The order of rotation by exclusion shall be without prejudice to the regions entering into a consensus to adopt any pre-ordained sequence in the new rotation cycle provided each region will have its turn in the rotation.

A violation of the rotation rule in any election shall be penalized by annulment of the election and disqualification of the offender from election or appointment to any office in the IBP.

SEC. 49. Terms of office. - The President and the Executive Vice-President shall hold office for a term of two years from July 1 following their election until June 30 of their second year in office and until their successors shall have been duly chosen and qualified.

In the event the President is absent or unable to act, his functions and duties shall be performed by the Executive Vice President, and in the event of the death, resignation, or removal of the President, the Executive Vice President shall serve as Acting President for the unexpired portion of the term. His tenure as such shall not be considered a new turn in the rotation.

In the event of death, resignation, removal or disability of the Executive Vice President, the Board of Directors shall elect among the regions qualified to be elected as Executive Vice President to serve the unexpired portion of the term or period of disability.


In the event of the death, resignation, removal or disability of both the President and the Executive Vice President, the Board of Governors shall elect an Acting President to hold office for the unexpired portion of the term or during the period of disability.

Unless otherwise provided in these By-Laws, all other officers and
employees appointed by the President with the consent of the Board
shall hold office at the pleasure of the Board or for such term as the
Board may fix.

x x x."

CES - career executive service - sc.judiciary.gov.ph/jurisprudence/2013/april2013/194994.pdf

see - sc.judiciary.gov.ph/jurisprudence/2013/april2013/194994.pdf


"x x x.


Amores v. Civil Service Commission38 is instructive as to the nature of
temporary appointments in the CES. The Court held therein that an
appointee cannot hold a position in a permanent capacity without the
required CES eligibility:

 We begin with the precept, firmly established by law and jurisprudence that a permanent appointment in the civil service is issued to a person who has met the requirements of the position to which the appointment is made in accordance with law and the rules issued pursuant thereto. An appointment is permanent where the appointee meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, and it is temporary where the appointee meets all the requirements for the position except only the appropriate civil service eligibility.


x x x x

 With particular reference to positions in the career executive service (CES), the requisite civil service eligibility is acquired upon passing the CES examinations administered by the CES Board and the subsequent conferment of such eligibility upon passing the examinations.

Once a person acquires eligibility, he either earns the status of a permanent appointee to the CES position to which he has previously been
appointed, or he becomes qualified for a permanent appointment to that
position provided only that he also possesses all the other qualifications
for the position. Verily, it is clear that the possession of the required CES
eligibility is that which will make an appointment in the career executive
service a permanent one. Petitioner does not possess such eligibility,
however, it cannot be said that his appointment to the position was
permanent.

 Indeed, the law permits, on many occasions, the appointment of
non-CES eligibles to CES positions in the government in the absence of
appropriate eligibles and when there is necessity in the interest of public
service to fill vacancies in the government. But in all such cases, the
appointment is at best merely temporary as it is said to be conditioned on
the subsequent obtention of the required CES eligibility. This rule,
according to De Leon v. Court of Appeals, Dimayuga v. Benedicto,
Caringal v. Philippine Charity Sweepstakes Office, and Achacoso v.
Macaraig, is invariable even though the given appointment may have been
designated as permanent by the appointing authority.

 x x x x

 Security of tenure in the career executive service, which presupposes a permanent appointment, takes place upon passing the CES examinations administered by the CES Board x x x.

 Petitioner undisputedly lacked CES eligibility. Thus, he did not hold the position of AGMO in a permanent capacity or acquire security of tenure
in that position. Otherwise stated, his appointment was temporary and “coterminus with the appointing authority.”39 In Carillo v. CA,40 this Court ruled that “one who holds a temporary appointment has no fixed tenure of office; his employment can be terminated at the pleasure of the appointing power, there being no need to show that the termination is for cause.” Therefore, we find no violation of security of tenure when petitioner was replaced by respondent upon the latter’s appointment to the position of AGMO by President Aquino.

x x x."

Erasing History in the Internet Era - NYTimes.com

see - Erasing History in the Internet Era - NYTimes.com


"x x x.

Connecticut has a law that allows people accused of crimes to expunge the official record if a case is dismissed. Most states have some version of expungement laws, or erasure laws as they are sometimes called. They are intended to let those whose cases have been dropped or overturned get on with their lives, unencumbered by the taint of arrest. Thus under the Connecticut law any person whose record is erased “shall be deemed to have never been arrested” and “may swear so under oath.”

Lorraine Martin, a nurse in Greenwich, was arrested in 2010 with her two grown sons when police raided her home and found a small stash of marijuana, scales and plastic bags. The case against her was tossed out when she agreed to take some drug classes, and the official record was automatically purged. It was, the law seemed to assure her, as if it had never happened.

But Martin found that when she applied for jobs that should have been well within her reach, she got the cold shoulder. She Googled herself and discovered what any vigilant employer would have seen: stories still sitting in online news archives with headlines like “Mother and sons charged with drug offenses.”

“It’s essentially a scarlet letter,” her lawyer, Mark Sherman, told me. “She’s become unemployable in spite of the fact that she has no criminal arrest record.”

So Martin filed a class action against local news outlets, claiming that they had defamed her and everyone in a similar situation. Defamation is the publication of information that is both damaging and false. The arrest story was obviously true when it was first published. But Connecticut’s erasure law has already established that truth can be fungible. Martin, her suit says, was “deemed never to have been arrested.” And therefore the news story had metamorphosed into a falsehood.

There are passages in the court briefs that make you think the lawyers were possessed by the ghost of Lewis Carroll. They debate the difference between “historical fact” and “legal fact.” They dispute whether something that was true when it happened can become not just private but actually untrue, so untrue you can swear an oath that it never happened and, in the eyes of the law, you’ll be telling the truth. Several pages and copious footnotes are devoted to considering what the meaning of “publish” is. Martin’s lawyers insist that every time a search engine delivers the old story to a new reader, it amounts to republishing, and constitutes a new libel. The defending news companies say that is ridiculous.

The plaintiff’s brief concedes that the suit is “novel,” and most lawyers I talked to predicted the case would probably be dismissed. It seems to collide head on with the First Amendment. The closest thing I could find to a similar case, in New Jersey’s Supreme Court, was thrown out with a ruling that suggested the plaintiff’s logic was “Orwellian.”

But the dilemma underlying this case is real, and not so simple. The Connecticut case is just one manifestation of an anxious backlash against the invasive power of the Internet, a world of Big Data and ever more powerful search engines, in which it seems almost everything is permanently recorded and accessible to almost anyone — potential employers, landlords, dates, predators. In Europe, where press freedoms are less sacred and the right to privacy is more ensconced, the idea has taken hold that individuals have a “right to be forgotten,” and those who want their online particulars expunged tend to have the government on their side. In Germany or Spain, Lorraine Martin might have a winning case.

I sense that the idea is gaining traction here. Erasure laws seem to be proliferating. States feel greater pressure to put public records offline. (After a New York newspaper published names and addresses of local handgun permit-holders, the Legislature in Albany sharply limited access to that information.) Google’s latest transparency report shows a sharp rise in requests from governments and courts to take down potentially damaging material. Editors tell me they are increasingly beset by readers who once cooperated with a reporter on a sensitive subject — nudism, anorexia, bullying — and years later find that old story a recurring source of distress. (It’s called “source remorse.”)

x x x."

JURIST - Paper Chase: Ireland high court rules paralyzed woman has no right to assisted suicide

see - JURIST - Paper Chase: Ireland high court rules paralyzed woman has no right to assisted suicide


"x x x.

[JURIST] The Supreme Court of Ireland [official website] on Mondayrejected an appeal [judgement] by a paralyzed woman seeking to allow her partner to help her commit suicide. The appellant, Marie Fleming, suffers from end stage multiple sclerosis, a disease of the nervous system, and as a result is paralyzed. Fleming challenged the constitutionality of Ireland's 1993 Criminal Suicide Act [text] which decriminalized suicide but provides that, "A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years." Fleming argued [AP report] that blocking her access to assisted suicide violated her rights to personal and bodily autonomy and self determination under the European Convention on Human Rights[official website] as integrated into the Irish Constitution [text, PDF]. The court concluded that there is no explicit right to commit suicide in the constitution. The court noted, however, that the ruling does not prevent the Irish Parliament from passing legislation that would allow assisted suicide for individuals such as Fleming.

The right to die [JURIST news archive] has been a contentious issue around the world.The only European countries that allow euthanasia are Belgium, the Netherlands, Luxembourg and Switzerland. In December a report released by the French governmentrecommended [JURIST report] that the country permit doctors to "accelerate death" for terminally ill patients seeking doctor-assisted euthanasia. In August the High Court of England and Wales denied [JURIST report] the plea of a paralyzed man challenging the legitimacy of the Suicide Act 1961 and other laws barring his ability to commit suicide. In 2011 an Indian high court ruled [JURIST report] passive euthanasia was permitted under certain circumstances. In 2010 a German court ruled [JURIST report] that removing a patient from life support would not be a criminal offense if the patient had previously given consent.

x x x."

Supreme Court: Environment Secretary can cancel small-scale mining permits | Economy | GMA News Online

see - Supreme Court: Environment Secretary can cancel small-scale mining permits | Economy | GMA News Online


"x x x.

The Supreme Court has ruled that the Environment Secretary has the authority to cancel small-scale mining permits issued by a local government.

In a 20-page decision dated April 11 but released to media only on Monday, the SC sitting en banc denied for lack of merit a petition filed by the League of Provinces of the Philippines to declare as illegal Section 17 (b)(3)(iii) of the Local Government Code of 1991 and Section 24 of RA No. 7076, or the People's Small Scale Mining Act.

Section 17 (b)(3)(iii) of the LGC states: "Pursuant to national policies and subject to supervision, control and review of the DENR, enforcement of forestry laws limited to community-based forestry projects, pollution control law, small-scale mining law, and other laws on the protection of the environment; and mini-hydroelectric projects for local purposes."

Section 24 of RA 7076 creates the provincial/city mining regulatory board that would be under the the "direct supervision and control" of the Environment Secretary.

The LPP argued that then-Environment Secretary Angelo Reyes had no authority to cancel the mining permit issued by Bulacan Gov. Josefina dela Cruz on August 10, 2006 to Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Liberato Sembrano, who in February 2004 filed an application for a permit to quarry in an area covering the cities of San Miguel, San Ildefonso, Norzagaray and San Jose del Monte, Bulacan.

Reyes stepped in after the Atlantic Mines and Trading Corp. sought his help, insisting the land covered by mining permit fell within the area covered by AMTC's existing application for exploration permit.

In his August 2006 decision, Reyes said Mercado and his group filed their application for a quarry permit in February 2004 when the area was still closed for mining applications due to an earlier pending application by another firm. Meanwhile, Reyes said, AMTC filed its application much later that year, in August 2004, when the area was already up for mining applications, since the original pending application had already been resolved and denied by that time.

In its petition, the LPP said the the Implementing Rules and Regulations of the Philippine Mining Act of 1995 did not "explicitly confer upon respondents DENR and the DENR Secretary the power to reverse, abrogate, nullify, void, or cancel the permits issued by the Provincial Governor or small-scale mining contracts entered into by the PMRB."

The petitioner said Section 17 (b)(3)(iii) of the Local Government Code of 1991 and Section 24 of R.A. No. 7076, which gives the DENR and the DENR Secretary "the power of control," should be struck down as unconstitutional.

The LPP said the Constitution only gives the president and his alter-egos, including executive secretaries, supervisory powers only, and not control, over acts of the local government units. The LPP stressed the autonomy provided by the Constitution to local government units.

In its ruling, the high tribunal said the DENR Secretary's cancellation of the Small-Scale Mining Permits issued by the provincial Governor, was part of his "judicial review" under Republic Act 7076 and its Implementing Rules and Regulations.

"The DENR Secretary's power to review and, therefore, decide, in this case, the issue on the validity of the issuance of the Small-Scale Mining Permits by the Provincial Governor as recommended by the PMRB, is a quasi-judicial function, which involves the determination of what the law is, and what the legal rights of the contending parties are, with respect to the matter in controversy and, on the basis thereof and the facts obtaining, the adjudication of their respective rights," the SC said.

The high court cited its 2005 ruling in Beltran vs Secretary of Health, which states: "For a law to be nullified it must be shown that there is a clear and unequivocal breach of the Constitution." The ruling stated that a petitioner seeking to nullify a law must "clearly establish the basis thereof. Otherwise, the petition must fail."

In its latest ruling, the SC said it "finds that the grounds raised by petitioner to challenge the conatitutionality of Section 17 (b)(3)(iii) of the Local Government Code of 1991 and Section 24 of RA 7076 failed to overcome the constitutionality of the said provision of law." — BM, GMA News.

x x x."

Philippine Chief Justice lambasts legal profession - The Global Legal Post

see - Philippine Chief Justice lambasts legal profession - The Global Legal Post


"x x x.

Philippine Chief Justice lambasts legal profession

As the Philippines seeks to tackle corruption, the Chief Justice calls for the legal profession to step up to the mark.

Philippines: against corruption

As the Philippines seeks to tackle corruption, the Chief Justice calls for the legal profession to step up to the mark.
The first woman Chief Justice of the Philippines has made an impassioned appeal for a “counter-cultural revolution” to change the public’s poor perception of lawyers.

Chief Justice Maria Lourdes Sereno said that the public fed on “sad, angry jokes about corrupt, overbearing lawyers”, reports GMA News. She said that lawyers  have been characterized as “selfish, untruthful and arrogant, as carrying ourselves with a false sense of entitlement.”

Moves to reform

Addressing a ceremony for bar exam passers, she said that the Supreme Court had taken measures to reform the judiciary and remove corruption, pointing out that judges had been recently dismissed for gross negligence.
She also said that disciplinary cases against lawyers were being speeded up in further efforts to ensure justice was seen to be done. The Chief Justice told those present that new entrants had to vow not to be corrupt or to allow themselves to be corrupted by others.

Ms Sereno became the country’s 24th Chief Justice following the removal from office of Chief justice Renato Corona last year in a landmark conviction when it was disclosed in his impeachment trial that he had failed to declare $2.4 million in foreign currency deposits. He had insisted that under his interpretation of the law, he was not required to disclose the money.
 

x x x."

Small-scale mining law - sc.judiciary.gov.ph/jurisprudence/2013/april2013/175368.pdf

see  - sc.judiciary.gov.ph/jurisprudence/2013/april2013/175368.pdf


"x x x.


The Court has clarified that the constitutional guarantee of local
autonomy in the Constitution [Art. X, Sec. 2] refers to the administrative
autonomy of local government units or, cast in more technical language, the decentralization of government authority.35 It does not make local
governments sovereign within the State.36 Administrative autonomy may
involve devolution of powers, but subject to limitations like following
national policies or standards,37 and those provided by the Local Government Code, as the structuring of local governments and the allocation of powers, responsibilities, and resources among the different local government units and local officials have been placed by the Constitution in the hands of Congress38 under Section 3, Article X of the Constitution.

Section 3, Article X of the Constitution mandated Congress to “enact
a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units their
powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers
and functions and duties of local officials, and all other matters relating
to the organization and operation of the local units.”

In connection with the enforcement of the small-scale mining law in
the province, Section 17 of the Local Government Code provides:

SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code.

Local government units shall likewise exercise such other powers and
discharge such other functions and responsibilities as are necessary appropriate, or incidental to efficient and effective provision of the
basic services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, the following:
x x x x
(3) For a Province:c
 x x x x
(iii) Pursuant to national policies and subject to supervision, control and review of the DENR, enforcement of forestry laws limited to community-based forestry projects, pollution control law, small-scale mining law, and other laws on the protection of the environment; and minihydro electric projects for local purposes;39

Clearly, the Local Government Code did not fully devolve the enforcement of the small-scale mining law to the provincial government, as its enforcement is subject to the supervision, control and review of the
DENR, which is in charge, subject to law and higher authority, of carrying
out the State's constitutional mandate to control and supervise the
exploration, development, utilization of the country's natural resources.40

x x x."

No, You Can’t Deactivate Your Facebook Account When Litigation Is Pending | Carr, McClellan, Ingersoll, Thompson & Horn - Professional Law Corporation - JDSupra

see - No, You Can’t Deactivate Your Facebook Account When Litigation Is Pending | Carr, McClellan, Ingersoll, Thompson & Horn - Professional Law Corporation - JDSupra


"x x x.

A federal magistrate judge in New Jersey recently sanctioned a plaintiff for evidence spoliation after he deactivated his Facebook account during litigation, resulting in its permanent deletion by Facebook after 14 days passed.  The court’s order confirms that social networking accounts are just like any other form of evidence and are subject to the same preservation obligations.  Parties who fail to preserve evidence contained in their social networking accounts when litigation is pending or anticipated do so at their peril.

For months, the defendants had sought information about the plaintiff’s social networking activities because they might shed light on the effects of the personal injuries claimed by the plaintiff.  The plaintiff created a new Facebook password and provided it to defense counsel to permit access to the account.  After learning that a third party had accessed his Facebook account, the plaintiff deactivated the account.  Facebook automatically deleted the account 14 days later.  The plaintiff contended that he terminated the account because he was involved in contentious divorce proceedings and his account had been repeatedly “hacked into” before his personal injury lawsuit.

The defendants requested that the court impose issue sanctions on the plaintiff because the Facebook account would have included information about the physical and social activities that the plaintiff engaged in.  The court granted the sanctions, concluding that the plaintiff’s deactivation of his Facebook account constituted evidence spoliation.

Applying existing Third Circuit case law, the court ruled that the Facebook account was clearly within plaintiff’s control, that it was relevant to the claims or defenses at issue, and that it was reasonably foreseeable that the evidence would be discoverable—particularly since the Facebook account had been requested in discovery five months before.

According to the court, the only significant question was whether there was “actual suppression or withholding of evidence.”  The court rejected the plaintiff’s contention that deactivating the account was reasonable after he learned that an unknown third party had accessed the account, and considering that the account had been previously hacked.  The court also rejected the plaintiff’s contention that the deletion of Facebook data was accidental because Facebook “automatically” deleted the account after 14 days.

The court concluded that the plaintiff had violated his obligations to preserve relevant evidence and granted the defendants’ request for a jury instruction that the jurors may draw an adverse inference against the plaintiff for his failure to preserve the Facebook account.

The order, entered in Gatto v. United Air Lines, Inc. (No. 10-cv-1090-ES-SCM), can be found here.

x x x."