DOJ circular of Sec. De Lima revoking past circulars imposing filing fees for criminal complaints filed with the DOJ and offices of the city and provincial prosecutors nationwide.

Issuances | Department of Justice - Republic of the Philippines | Tel: (+632) 523 8481, (+632) 523 6826

"x x x.

DEPARTMENT CIRCULAR NO. 025

TO: All Concerned
SUBJECT: Collection of Legal Fees Pursuant to R.A. No. 9279 and its IRR

WHEREAS, Republic Act (R.A.) No. 9279 and its Implementing Rules and Regulations (IRR) allowed members of the National Prosecution Service in the Department of Justice to receive additional compensation in the form of special allowances sourced from any increase in fees and new fees actually collected bv the National Prosecution Service after May 16, 2004, the effectivity of R.A. No. 9279;

WHEREAS, the Department of Justice issued several circulars to implement the pro\isions of R.A. No. 9279 and its IRR, to wit:

a. Department Circular (D.C.) No. 42 dated September 14, 2004 (Collection of Legal Fees by the National Prosecution Service);
b. D.C. No. 63 dated November 16, 2004 (Guidelines in the Assessment and Collection of Legal Fees Pursuant to R.A. No. 9279 and its Implementing Rules and Regulations);
c. D.C. No. 59 dated November 3, 2004 (Amendment of Department Circular No. 70, Series of 2000, Otherwise know as the 2000 NPS Rule on Appeal); and
d. D.C. No. 59 dated July 4, 2007 (Duties and Responsibilities of Regional/City/Provincial Prosecutors in the Implementation of Republic Act No. 9279);

WHEREAS, Section 20 of R.A. No. 10071 (Strengthening and Rationalizing the National Prosecution Service) provides that. "the special allowances granted to the, members of the National Prosecution Service under Republic Act No. 9279 shall continue to be given to them subject to the provisions hereof:. Provided, however, that the amount not supported by the funding source specified in Section 3 thereof to complete the equivalent of hundred percent (100%) of the basic salary shall he paid through appropriations included in the budget of the DOJ: Provided, further, That when the amount being supported by the said funding source shall have been also included in the General Appropriations, the fees authorized under said Section 3 shall no longer be collected;"

WHEREAS, it appearing that 100% of the basic salary of prosecutors under R.A. No. 6758 otherwise known as the Salary Standardization Law, as amended, has already been reached, Section 20 of R.A. No. 10071 mandates that the fees authorized to be collected under R.A. No. 9279 shall no longer be collected;

In view of the foregoing, it is hereby DIRECTED that:
1. Department Circular No. 42 and related circulars, supra, are hereby REVOKED effective immediately;
2. All assessment clerks and collection officers under the National Prosecution Service shall forthwth CEASE AND DESIST from assessing and collecting legal fees stated in the above-mentioned circulars.

This Circular takes effect immediately and remains in force until further orders.

(signed)
LEILA M. DE LIMA
Secretary

x x x."

No more filing fees for criminal complaints filed with DOJ, offices of prosecutors

Welcome to the Department of Justice - Republic of the Philippines | Tel: ( 632) 523 8481, ( 632) 523 6826

"x x x.

Secretary Leila M. de Lima recently directed the termination of collection of legal fees in the Department of Justice (DOJ). This was previously imposed under Republic Act No. 9279 or "An Act Granting Additional Compensation in the Form of Special Allowances for the Members of the National Prosecution Services and the State Counsels in the Department of Justice, and For Other Purposes."

With the implemented tranches of the Salary Standardization Law (SSL), the 100% increase in the basic salary of prosecutors has been met
which effectively integrates aIlowances as regular pay.

"This will address the recurring issue of denial of access to justice by parties and litigants by imposing an exaction on the redress of wrongs when filing criminal complaints,"De Lima said.

De Lima issued Department Circular No. 025 dated April 12, 2012 ordering all assessment clerks and collection officers in the Regional, Provincial and City Prosecution Offices to cease and desist from assessing and collecting legal fees, revoking Department Circular No. 42 and other related circulars implementing the provision of R.A. No. 9279 and its implementing rules and regulations.

"The DOJ will continue to work hard on making justice available everywhere to everyone ,with the full support of the national government. "We
are studying the need for policy to deter nuisance, harassment or collection suits and urge the citizenry to be judicious when resorting to filing cases," De Lima added.

R.A. No. 9279 took effect on 16 May 2004 as a legislated solution to address the low levels of compensation for prosecutors by sourcing special
allowance from fees for various services rendered. The DOJ is advocating for justice sector-wide compensation scheme for its investigators, prosecutors, counsels, other lawyers and staff to be aligned with industry standards.

x x x."

From Biglaw to Boutique: Crossing the Line « Above the Law: A Legal Web Site – News, Commentary, and Opinions on Law Firms, Lawyers, Law School, Law Suits, Judges and Courts

From Biglaw to Boutique: Crossing the Line « Above the Law: A Legal Web Site – News, Commentary, and Opinions on Law Firms, Lawyers, Law School, Law Suits, Judges and Courts

This is a good article on civility that must be practiced by and among lawyers. The adversarial system of litigation does not justify unethical and unprofessional behavior among lawyers. Brother lawyers must be friends inside and outside of the courtrooms even as they endeavor to zealously prosecute or defend the causes of their clients. 


"x x x.

As readers of this site’s “Lawyer of the Day” posts everyone knows, lawyers and their clients can be guilty of all kinds of outrageous behavior. Litigation especially, with its inherently adversarial nature, seems to bring out the worst in people.

Bad behavior by lawyers comes in many forms. To non-lawyers, most if not all lawyers are jerks or worse. All bad behavior by lawyers is lumped together. But there are important differences.

A lot of bad behavior should be avoided simply because it is counter-productive. For example, an attorney may refuse to offer voluntary extensions of time to respond to discovery, or to a complaint. Aside from violating a principle of professional courtesy, that behavior also is ultimately self-destructive. In litigation, what comes around goes around, and granting extensions of time that will not prejudice your client is a prudent way to ensure later modest courtesies for yourself when needed.

Declining modest extensions to respond to discovery requests is especially unwise, as the responding party can always just serve objections, with the intention of serving substantive responses before a motion to compel can be filed. Because there is no instantaneous remedy for a failure to serve substantive responses, you often have little to gain by refusing a request for a modest extension of time.

Continue reading to find out when bad behavior crosses the line….

Another kind of supposed bad behavior is actually nothing more than zealous advocacy. I don’t necessarily believe that taking extreme, aggressive, or uncompromising positions in litigation is unethical or unprofessional. If a client insists on fully litigating every issue and absolutely refuses to compromise on even the most minor points, that is his prerogative.

I make a clear distinction between my personal behavior and the position my client pays me to advocate. Provided my client is not asking me to do anything unethical, I have no qualms about advocating positions my adversaries deem to be unreasonable. I’d like to think that I’m able to effectively advocate even objectively unreasonable positions without opposing counsel taking personal affront or deeming me to be personally offensive.

A third kind of bad behavior, by contrast, has everything to do with the lawyer: being rude, offensive, profane, belligerent, sexist, condescending, etc. Recently, for example, we’ve read about lawyers who refer to female adversaries as prostitutes and worse, and lawyers who taunt and physically threaten their adversaries over issues as mundane as deposition scheduling. Shocking and deplorable though such conduct may be, I don’t lose too much sleep over people showcasing their personality flaws.

Sometimes insensitivities may reflect cultural differences. One time, opposing counsel asked me how I would like him to let me know when something happened. Frustrated by a long pattern of obfuscation, I replied sarcastically, “I don’t care how. Email. Telephone. Smoke signals. Whatever!”

I received back a lecture about my cultural insensitivity and professed outrage over my reference to “smoke signals.” I was mortified that I had inadvertently offended, so much so that I immediately consulted with someone well known to be particularly sensitive and thoughtful about Native American issues.

More recently, I was chastised for sending a notice of deposition with a date of my own choosing, along with a message to opposing counsel to let me know if the date I picked was not convenient. My adversary argued that professional courtesy required that a formal notice should be sent only after conferring about potential dates. The difference between conferring pre- or post-notice strikes me as six of one versus a half-dozen of the other, but my point is that sometimes civility is in the eye of the beholder.

As a litigator, you have to have a pretty thick skin and be able to tolerate insulting, rude, and belligerent behavior. And indeed, I do have a pretty high tolerance for bad behavior and very rarely do I take litigation affronts personally.

But I make a clear distinction between litigation conduct that is annoying, unprofessional, or even deplorable, on the one hand, and conduct that crosses an ethical line. The line I have in mind consists essentially of lying, especially to a judge, and making unwarranted accusations of clearly unethical conduct.

A lot of non-lawyers seem to think that lying is precisely what lawyers are paid to do. I’m not so cynical. Lawyers can be expected to exaggerate, and sometimes selectively disclose information, and even sometimes leave a false impression. A judge expects adversaries to slant their view, and she will know the truth must still lie somewhere in between. But I think telling pure falsehoods crosses a line.

I recall one matter where my adversary habitually filed false declarations. He would miss a discovery deadline and then, a week later, serve the discovery with a falsely backdated proof of service. We always kept the postmarked envelopes, but he would claim that his small town post office must have misplaced the mail. One time he even included facts in the discovery response that we could prove post-dated his false proof of service. To me, that lawyer’s conduct crossed the line.

Another time, I represented a client accused (wrongfully, of course) of misappropriating trade secrets. Opposing counsel was seeking a TRO, and at the hearing, he told the judge that his expert report showed that my client had downloaded the critical software code shortly before he left his job. In actuality, the report showed only that my client accessed the code, not that he downloaded it. The difference was critical and, in my opinion, opposing counsel crossed the line of zealous advocacy.

The other line I draw is to falsely accuse someone else of a willful ethical breach. Because I take honesty to the tribunal so seriously, I consider accusations of lying to the court to be “fighting words” that should not be uttered lightly. Recently I heard an attorney accuse another of intentionally ignoring a judge’s order to provide notice of a ruling. The charge was false, and, in my opinion, counsel crossed the line by making the charge because she knew it wasn’t true.

Biglaw, as opposed to smaller firms and boutique firms, generally is thought (especially by solo or small-firm practitioners) to exhibit more of the bad behavior that I don’t personally consider to be beyond the pale. Solos will complain, for example, that their Biglaw adversaries are less civil and courteous, less likely to grant extensions, and generally more adversarial.

To the extent that the Biglaw stereotype has any truth, it likely has to do with the clients and economics involved. Biglaw firms being paid by the hour have less incentive to cooperate than do small firms being paid on a contingent fee basis. A corporate client of Biglaw is more likely to be willing to finance more tenuous legal arguments or tactics. And working demanding hours under high stress conditions may make an attorney more likely to exhibit some of their less attractive personality traits.

Economics also likely plays a role in explaining why solos and small-firm lawyers are more often the ones accused of improper conduct like backdating proofs of service or misrepresenting case law to the court. Smaller firms, especially when litigating against Biglaw adversaries, lack Biglaw resources and often are looking to save costs, and time, at every turn. That dynamic, I suspect, can increase the pressure to cut corners in innumerable ways.

Further, a firm handling a matter on contingency has a more direct financial incentive to engage in unethical conduct on their client’s behalf than does a firm that is being paid by the hour regardless of outcome.

Whether in Biglaw or small, I guess everyone has to draw their own lines, and admittedly no one died and made me the Grand Arbiter of Litigation Conduct. For years I practiced at a firm known for an aggressive, take-no-prisoners litigation style. I respect that style and I’m not judgmental by nature. But it’s precisely because I have such a high tolerance for bad behavior generally that I refuse to accept that it’s ever okay to cross the line.

---

Tom Wallerstein lives in San Francisco and is a partner with Colt Wallerstein LLP, a Silicon Valley litigation boutique. The firm’s practice focuses on high tech trade secret, employment, and general complex-commercial litigation. He can be reached at tomwallerstein@coltwallerstein.com.

x x x."

Show Me Your ID: Cops, Courts Re-evaluate Their Use of Eyewitnesses - Magazine - ABA Journal

Show Me Your ID: Cops, Courts Re-evaluate Their Use of Eyewitnesses - Magazine - ABA Journal

Police lineup is a useful method to identify culprits. But it has its inherent weaknesses. Read this article.


"x x x.

After more than three decades of laboratory studies, experts have found that a few simple changes in police lineup procedures improve the accuracy of eyewitness identifications.

For example, having someone administer the lineup who doesn’t know who the real suspect is can prevent inadvertently influencing the witness’s pick. And telling the witness that the perpetrator may not be present in the lineup lessens the chances that the witness will feel compelled to identify a suspect.

Police departments have been reluctant to act on the recommendations. But that is changing. One-quarter to one-third of all police departments now use the double-blind, sequential approach, according to some estimates, and their ranks appear to be growing every day.

Two states—New Jersey and North Carolina—require that all lineups be conducted sequentially and using a double-blind method, where the administrator does not know which person is the suspect. So do many local law enforcement agencies, including some of the nation’s biggest police departments.

x x x."

Aboriginal Rights - Whose rights are they anyways? | collective rights, Fort Nelson First Nation, inter-jurisdictional immunity, logging and road rights, Treaty 8 | Canadian Appeals Monitor

Aboriginal Rights - Whose rights are they anyways? | collective rights, Fort Nelson First Nation, inter-jurisdictional immunity, logging and road rights, Treaty 8 | Canadian Appeals Monitor


In the Philippines, the law on aboriginal rights is not that much developed as in the  USA, Canada, and Australia. There is a special commission created by law that protects the rights of cultural minorities or aborigines in the Philippines.  The Commission on Human Rights sometimes intervenes to  assist them. 


"x x x.

The Supreme Court of Canada recently granted leave to appeal from the judgment of the BC Court of Appeal in Sally Behn et al. v. Moulton Contracting Ltd. et al.. This appeal addresses a critical issue in aboriginal law – do aboriginal rights belong to individuals, or only to communities? Aboriginal communities and commercial interests alike will closely watch this appeal.

Background

The Behns are individual members of the Fort Nelson First Nation (the “First Nation”) who allegedly blocked a road required by Moulton Contracting Ltd (“Moulton”) to engage in logging activity. The Behns’ defence alleged that (i) Moulton did not have valid logging and road rights due to a lack of meaningful consultation with the First Nation, and (ii) there could not be any such rights granted, as they would interfere with Treaty 8 rights.

At the BC Supreme Court, Hinkson J. granted an order striking portions of the Behns’ Statement of Defence, thereby curtailing these issues. 

In granting the order striking these defences, Hinkson J. determined:

1) that individual members of the First Nation do not have standing to advance these legal positions as the rights asserted are rights belonging to the First Nation collectively;

2) the challenge to the instruments said to give logging and road use rights to Moulton was a collateral attack on those instruments. Accordingly, the challenge was not permissible, and should have been pursued through administrative law means; and

3) the constitutional arguments of federal exclusivity could not succeed in the circumstances.

The Behns appealed each of these three findings. The BC Court of Appeal dismissed the appeal. Leave has been granted to the Supreme Court of Canada.

The First Ground

On the first ground, the Court of Appeal determined that “…[Hinkson J.] was correct in concluding that the Behns lack standing to assert that the duties owed to the Fort Nelson First Nation were not met or that its collective rights were infringed…” In particular, the Court of Appeal found that the duty to consult is not synonymous with a substantive right. Rather, it is a procedural right not to be framed so broadly as to provide a defence to an individual. The Court of Appeal wrote:

The proposition that it does not lie in the mouth of individual members of the Fort Nelson First Nation to attack these Crown granted instruments, whether as an offensive move by starting a claim or as a defensive move in response to a claim […] It leaves to the First Nation the decision as to when and how to engage in the consultation spoken of in the jurisprudence, when and how to settle issues in the collective’s best interests, and when not to settle, making all of these decisions bearing in mind their history, the community’s present and future needs, expectations and challenges, and the nature of the issues presented.

Importantly, the Court of Appeal determined that, were individuals permitted to assert collective rights and engage in self-help rather than use the existing legal channels, there could be unexpected consequences. Further, assuming there was a breach of the duty to consult, a range of remedies might be ordered: such a breach does not automatically result in nullification of the instruments already granted. Accordingly, the Court found that the judge was correct in finding that the Behns lacked standing to advance the defences subject to this appeal. 

The Second Ground

On the second ground of appeal, abuse of process, the trial judge determined that the defences were an “…impermissible collateral attack upon instruments given to Moulton by the Crown…” The Behns said that the judge erred in this conclusion. The Behns, when arguing that the judge erred, took the position that inter alia,;

…the rule against collateral attack is inapplicable… 

and that:

…there have been no proceedings testing the validity of the instruments and until this action there was no lis between them (the Behns) and any other person. Thus, they say the instruments are not “orders” against them, and the doctrine of collateral attack does not apply.

The Behns additionally argued that, even if the claim was a collateral attack, it is not impermissible if a collateral attack is required to adjudicate the matter. It was argued that this was equally true for a defence. The Court of Appeal held that:

Allowing that there will be instances in which a party may be allowed to attack the substance of a decision en route to determining a claim in damages, in my view this is not a case for that approach […] I agree with the judge that such a pleading is an abuse of process.

In determining whether this would leave the Behns, or individuals like them, without recourse when faced with Crown granted instruments, the Court of Appeal noted that the “[First Nation] had the capacity to challenge the instruments through whatever proper spokespersons or avenues in its wisdom it might use.” The Court of Appeal, therefore, determined that a collateral attack was impermissible here, and this ground must fail.

The Third Ground

On the third ground of appeal, inter-jurisdictional immunity, the Behns argued that the there was a reasonable defence based on the limits of the provincial ability to interfere with a core matter within federal jurisdiction. In particular, although Treaty 8 permits the Crown to ‘take up’ land for lumbering, that ability is not unlimited. Moulton, on the other hand, urged the Court of Appeal to uphold the judge’s conclusions on the issue, saying that inter-jurisdictional immunity has no relevance and, even if it did, it is a doctrine of limited application. The Court of Appeal decided that the issue should not be decided on a pleadings motion.

The Court of appeal declined to consider inter-jurisdictional immunity, determining that it should not be decided on a pleadings motion. Having rejected the first two grounds for appeal, and refusing to consider the third, the Court of Appeal dismissed the appeal.

Significance of the Appeal to the Supreme Court of Canada

The issue of whether aboriginal rights belong to particular Aboriginal communities or to individuals is of key importance in this area of the law. If the Supreme Court determines Aboriginal rights belong to individuals then – as observed by the British Columbia Court of Appeal – there may be significant unexpected consequences. In particular, such a finding will open the door to individual members of particular Aboriginal communities to assert, without necessarily having the support of their community, that their rights were not respected. Where there is disagreement within an aboriginal community over, for example, consultation regarding a resource extraction operation, this could result in significant controversy within a community, and difficult legal challenges for those companies impacted.

On the other hand, if the Supreme Court determines that the rights in question belong to the community – not to the individual – there will be a significant impact on the ability of individuals to assert important rights, such as the right to consult. If Aboriginal rights are rights that can only be asserted by a community, there may be little recourse for those who feel their community has ignored their voice. In an era of increasing resource pressures, in particular in forestry and oil and gas development, such voices may only get louder.

Case Information

Sally Behn et al. v. Moulton Contracting Ltd. et al.

SCC Docket No: 34404

Leave to Appeal Granted: April 5, 2012

x x x."

Should You Ever Face a Claim, Try to Let the Emotions Go - Risk 411 | ALPS 411

Should You Ever Face a Claim, Try to Let the Emotions Go - Risk 411 | ALPS 411

Unlike in the case of the USA, in the Philippines we do not have a mandatory system that commands that Filipino lawyers secure an annual malpractice insurance to guarantee that potential malpractice claims by aggrieved clients shall be properly indemnified.

Read a related article below.


"x x x.

A common response by an attorney, when first learning about a malpractice claim, is one of shock, anger, or outrage. “How dare my client do this to me! How dare someone question my abilities!” The situation is viewed as a personal affront. Other attorneys respond with disbelief, “the client is simply misinformed and this can be corrected,” or outright dismissal, “this will never go anywhere so I can ignore it.” Sometimes the response is one of extreme embarrassment and every step is taken to hide the situation from everyone, including the client. Regardless of what your initial response might be, should you ever face a claim, try to let the emotions go or at least try to keep them in check. Here’s why.

Sometimes an attorney doesn’t need to be sued to be made aware that an error was made. The error was recognized as soon as it was made. Should this ever happen to you, don’t ignore it. Just as a minor infection can wreck physical havoc if left unattended, a known incident left unaddressed can eventually become a serious concern. Facts never get better over time and any significant delay in dealing with it can so easily be framed as you putting your interests above the interest of your client. Juries can have field days with that one.  

My best advice upon the recognition of a misstep is simply to encourage you to respond as the professional you are. In other words, don’t let your emotions run amuck. Not all incidents turn into claims and this is important to remember. Call your malpractice insurance carrier immediately to report the incident and to seek advice. With any luck, the problem can be addressed and resolved favorably for all involved through claims repair. Regardless, with advice in hand, discuss the matter with the client in a straightforward manner. Advise the client about what happened, the consequences of the error, and the options that the client now has. Inform the client that a conflict of interest may exist which might preclude you from representing the client any further. Organize and review your file. Do not alter the file by adding or taking anything from it. Make certain to keep a complete copy of your file should the client wish to take possession of their file.

Similarly, if or when an unexpected allegation of malpractice arises, work to get beyond the initial emotional responses. Although common, quite natural, and certainly understandable, these emotional responses tend to not serve you well in the long run. Let them go and, again, focus on responding as a professional. Understand that many attorneys will be sued at some point during their career. You are not alone. Know, too, that of those attorneys who have gone through the experience, many come out the other side just fine and in some situations as better attorneys.

Once a claim arises, it is extremely important to report the claim to your malpractice carrier immediately and wait for their guidance or the hiring of defense counsel if called for. Then, follow the advice of your carrier or your defense counsel. We all have heard the saying “attorneys make the worst clients.” Try not to live it. Take heed, you are now the client. It’s time to stop being the lawyer because your judgment may be impaired due to the emotions that come with the experience. You are simply too close, too involved. You would not have your clients handle their own lawsuits. Follow your own advice and don’t try to handle your own. Yes, this does mean that regardless of the merits of any allegations, you shouldn’t even respond to a demand letter or a complaint because doing so could do more harm than good.

When dealing with a malpractice claim, however, being “professional” doesn’t mean that you shouldn’t meaningfully participate in your defense. Of course you should, just do so as the client. Unfortunately, some attorneys will continue to try to lawyer the matter and ultimately ignore the advice they are receiving. Others allow their emotions to spin out of control for any number of reasons including anger, frustration, embarrassment, impairment or, unfortunately, an inflated ego. Such behaviors only exacerbate the entire situation if for no other reason than they get in the way. Meaningful participation is desired and cooperation is essential. Review your file and assist defense counsel and your carrier in learning the facts; and understand that we know your recollection of the situation is not ever going to be 100%. No one’s is. 

Remember that you are human and, as such, will make a mistake from time to time. That’s life; but balance is important, particularly when dealing with a significant claim. Do all that you can to not allow the claim to affect your day-to-day life at home or in the office. A constant focus on the claim can drain you physically and emotionally and potentially jeopardize your support systems and your attention. Some even struggle with insomnia because they simply can’t let it go. Find a way, because the end result of not doing so can all too easily lead to a second misstep on another file. Finally, assuming you have a malpractice policy, remember that you purchased this coverage as a way to protect both you and your client. Thank goodness for that.

A final thought is to encourage you to view all malpractice claims and incidents as a learning opportunity when you are emotionally able to do so. No one is a bad attorney or a bad person simply because they made a mistake.  The professional response is to look critically at all aspects of the incident or claim in order to consider how the situation might have been avoided or handled differently. Look for it. It’s there. The purpose is to ask what can be learned as a result of the incident or claim so that the situation won’t be repeated. You might ask the following. What could have prevented the problem? What procedural changes could be made? What might I have done differently? Asking and answering these kinds of questions can lead to very positive results going forward if you take advantage of the opportunity. Don’t miss it. Personally, I believe that no one is defined by the mistakes that he or she makes in life. Rather, we each are defined by how we respond to the mistakes we make. Seek to be better for the experience. In my mind, that’s what it means to be a professional. 

x x x."

Is a child who was conceived through in vitro fertilization using his deceased father's frozen sperm eligible for US Social Security survivors benefits?

FindLaw | Cases and Codes

"x x x.

ASTRUE, COMMISSIONER OF SOCIAL SECURITY v. CAPATO, on behalf of B. N. C. et al.

certiorari to the united states court of appeals for the third circuit

No. 11-159. Argued March 19, 2012--Decided May 21, 2012

Eighteen months after her husband, Robert Capato, died of cancer, respondent Karen Capato gave birth to twins conceived through in vitro fertilization using her husband's frozen sperm. Karen applied for Social Security survivors benefits for the twins. The Social Security Administration (SSA) denied her application, and the District Court affirmed. In accord with the SSA's construction of the Social Security Act (Act), the court determined that the twins would qualify for benefits only if, as 42 U. S. C. §416(h)(2)(A) specifies, they could inherit from the deceased wage earner under state intestacy law. The court then found that Robert was domiciled in Florida at his death, and that under Florida law, posthumously conceived children do not qualify for inheritance through intestate succession. The Third Circuit reversed. It concluded that, under §416(e), which defines child to mean, inter alia, "the child or legally adopted child of an [insured] individual," the undisputed biological children of an insured and his widow qualify for survivors benefits without regard to state intestacy law.

Held: The SSA's reading is better attuned to the statute's text and its design to benefit primarily those supported by the deceased wage earner in his or her lifetime. Moreover, even if the SSA's longstanding interpretation is not the only reasonable one, it is at least a permissible construction entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837. Pp. 4-16.

     (a) Congress amended the Act in 1939 to provide that, as relevant here, "[e]very child (as defined in section 416(e) of this title)" of a deceased insured individual "shall be entitled to a child's insurance benefit." §402(d). Section 416(e), in turn, defines "child" to mean: "(1) the child or legally adopted child of an individual, (2) a stepchild [under certain circumstances], and (3) . . . the grandchild or stepgrandchild of an individual or his spouse [under certain conditions]." Unlike §§416(e)(2) and (3), §416(e)(1) lacks any elaboration of the conditions under which a child qualifies for benefits. Section 416(h)(2)(A), however, further addresses the term "child," providing: "In determining whether an applicant is the child or parent of [an] insured individual for purposes of this subchapter, the Commissioner of Social Security shall apply [the intestacy law of the insured individual's domiciliary State]." An applicant who does not meet §416(h)(2)(A)'s intestacy-law criterion may nonetheless qualify for benefits under other criteria set forth in §§416(h)(2)(B) and (h)(3), but respondent does not claim eligibility under those other criteria. Regulations promulgated by the SSA closely track §§416(h)(2) and (3) in defining "[w]ho is the insured's natural child," 20 CFR §404.355. As the SSA reads the statute, 42 U. S. C. §416(h) governs the meaning of "child" in §416(e)(1) and serves as a gateway through which all applicants for insurance benefits as a "child" must pass. Pp. 4-7.

     (b) While the SSA regards §416(h) as completing §416(e)'s sparse definition of "child," the Third Circuit held, and respondent contends, that §416(e) alone governs whenever the claimant is a married couple's biological child. There are conspicuous flaws in the Third Circuit's and respondent's reading; the SSA offers the more persuasive interpretation. Pp. 7-15.

          (1) Nothing in §416(e)'s tautological definition suggests that Congress understood the word "child" to refer only to the children of married parents. The dictionary definitions offered by respondent are not so confined. Moreover, elsewhere in the Act, Congress expressly limited the category of children covered to offspring of a marital union, see §402(d)(3)(A), and contemporaneous statutes similarly distinguish child of a marriage from the unmodified term "child." Nor does §416(e) indicate that Congress intended "biological" parentage to be prerequisite to "child" status. A biological parent is not always a child's parent under law. Furthermore, marriage does not necessarily make a child's parentage certain, nor does the absence of marriage necessarily make a child's parentage uncertain. Finally, it is far from obvious that respondent's proposed definition would cover her posthumously conceived twins, for under Florida law a marriage ends upon the death of a spouse. Pp. 8-10.

          (2) The SSA finds a key textual cue in §416(h)(2)(A)'s opening instruction: "In determining whether an applicant is the child . . . of [an] insured individual for purposes of this subchapter," the Commissioner shall apply state intestacy law. Respondent notes the absence of any cross-reference in §416(e) to §416(h), but she overlooks that §416(h) provides the crucial link: It requires reference to state intestacy law to determine child status not just for §416(h) purposes, but "for purposes of this subchapter," which includes both §§402(d) and 416(e). Having explicitly complemented §416(e) by the definitional provisions contained in §416(h), Congress had no need to place a redundant cross-reference in §416(e).

     The Act commonly refers to state law on matters of family status, including an applicant's status as a wife, widow, husband, or widower. See, e.g., §§416(b), (h)(1)(A). The Act also sets duration-of-relationship limitations, see Weinberger v. Salfi, 422 U. S. 749, 777-782, and time limits qualify the statutes of several States that accord inheritance rights to posthumously conceived children. In contrast, no time constraint attends the Third Circuit's ruling in this case, under which the biological child of married parents is eligible for survivors benefits, no matter the length of time between the father's death and the child's conception and birth.

     Because a child who may take from a father's estate is more likely to "be dependent during the parent's life and at his death," Mathews v. Lucas, 427 U. S. 495, 514, reliance on state intestacy law to determine who is a "child" serves the Act's driving objective, which is to "provide . . . dependent members of [a wage earner's] family with protection against the hardship occasioned by [the] loss of [the insured's] earnings,"Califano v. Jobst, 434 U. S. 47, 52. Although the Act and regulations set different eligibility requirements for adopted children, stepchildren, grandchildren, and stepgrandchildren, it hardly follows, as respondent argues, that applicants in those categories are treated more advantageously than are children who must meet a §416(h) criterion. Respondent charges that the SSA's construction of the Act raises serious constitutional concerns under the equal protection component of the Due Process Clause. But under rational-basis review, the appropriate standard here, the regime passed by Congress easily passes inspection. Pp. 10-15.

     (c) Because the SSA's interpretation of the relevant provisions, is at least reasonable, the agency's reading is entitled to this Court's deference under Chevron, 467 U. S. 837. Chevron deference is appropriate "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." United States v. Mead Corp., 533 U. S. 218, 226-227. Here, the SSA's longstanding interpretation, set forth in regulations published after notice-and-comment rulemaking, is neither "arbitrary or capricious in substance, [n]or manifestly contrary to the statute." Mayo Foundation for Medical Ed. and Research v. United States, 562 U. S. ___, ___. It therefore warrants the Court's approbation. Pp. 15-16.

631 F. 3d 626, reversed and remanded.

     Ginsburg, J., delivered the opinion for a unanimous Court.

x x x."

Protest and appeal in local real property tax case

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 (1^st) to June thirtieth (30^th) 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 (1^st) day of January of any year shall take effect on the first (1^st) 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 (1^st) 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 (1^st) day of January of any year shall take effect on the first (1^st) 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 1^st 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 1^st 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