UNEP COLLEGE OF LAW

TAXATION II REVIEWER

NIRC REMEDIES: 3. LEVY OF REAL PROPERTY The same act of seizure as in distraint, but in this case, of real property, an interest in or rights to such property in order to enforce the payment of taxes. The real property under levy shall be sold in a public sale, if the taxes involved are not voluntarily paid following such levy. When may levy of real property be effected? After the expiration of time required to pay the delinquent tax, real property may be levied upon, BEFORE, SIMULTANEOUSLY or AFTER the distraint of personal property belonging to the delinquent (Sec. 207(B), NIRC) How is levy of real property be effected? A) Issuance of Warrant of Levy: The IR officer designated by the Commissioner or his duly authorized representative shall prepare a DULY AUTHENTICATED CERTIFICATE showing the name of the taxpayer, description of the property levied, and the amounts of tax and penalty due from him. This certificate shall operate with the force of LEGAL EXECUTION throughout the Philippines. B) Service of the Warrant: The certificate shall contain a description of the property upon which levy is made. at the same time, written notice of the levy shall be mailed to or served upon the: (1) Register of Deeds of the province or city where the property is located and (2) Delinquent taxpayer (if he is absent from the Philippines, to his agent or manager of business in respect to which the liability arose or to the occupant of the property in question) NOTE: In case the warrant of levy is NOT issued before or simultaneously with the warrant of distraint AND the personal property of the delinquent taxpayer is NOT SUFFICIENT to satisfy his tax delinquency, the CIR or his authorized representative shall, within 30 days after the execution of the distraint, PROCEED with the levy on taxpayers real property (Sec. 207(B), NIRC). C) Advertisement and Sale (1) Within twenty (20) days after the levy, the officer conducting the proceedings shall proceed to advertise for SALE the property or a portion as may be necessary to satisfy the claim and costs of sale. Such
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advertisement shall cover a period of at least thirty (30) days. The notice shall be posted at the main entrance of the city or municipal hall AND in a public and conspicuous place in the barrio or district where the real property lies. The notice must also be published in a newspaper of general circulation in the place where the property is located, once a week for three (3) weeks (Sec. 213, NIRC) CONTENTS of notice: statement of amount of taxes, and penalties due, time and place of sale, name of taxpayer, short description of property.

(1)

If taxpayer does not pay his taxes, penalties and interest before the day fixed for the sale, the sale shall proceed and shall be held either at the main entrance of the municipal or city hall or on the premises to be sold, as the officer conducting the proceedings shall determine and as the notice of sale shall specify. Property will be awarded to the highest bidder. In case the proceeds of the sale exceeds the claim and costs of sale, the excess shall be turned over to the owner of the property. Right of Pre-emption the taxpayer may discontinue all proceedings by paying the taxes, penalties and interest at any time before the day fixed for the sale (Sec. 213, NIRC).

(2)

If there is no bidder for the real property OR if the highest bid is not sufficient to pay the taxes, penalties and costs, the IR Officer conducting the sale shall declare the property FORFEITED to the GOVERNMENT in satisfaction of the claim. (Sec. 215, NIRC)

D) Redemption of property sold (1) Within one (1) year from the date of sale, the taxpayer or anyone for him, may pay to the Revenue District Officer the total amount of the following: - public taxes - penalties - interest from the date of delinquency to the date of sale - interest on said purchase price at the rate of fifteen percent (15%) per annum from the date of sale to the date of redemption. Note: If the property was forfeited in favor of the government, the redemption price shall include only the taxes, penalties and interest plus costs of sale no interest on purchase price since the Government did not purchase the property anyway, it was forfeited.
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UNEP COLLEGE OF LAW

UNEP COLLEGE OF LAW TAXATION II REVIEWER

TAXATION II REVIEWER

Note: The taxpayer-owner shall not be deprived of possession of the said property and shall be entitled to rents and other income until the expiration of the period for redemption (Sec. 214, NIRC) After the period of redemption, a final deed of sale is issued in favor of the purchaser. Effects of Redemption of Property Sold: I. Such payment shall entitle taxpayer the delivery of the certificate issued to the purchaser and a certificate from RDO that he has redeemed the property. II. The RDO shall pay the purchaser the amount by which such property has been redeemed and said property shall be free from lien of such taxes and penalties (Sec. 214, NIRC). Further Distraint and Levy: The remedy of distraint and levy may be repeated if necessary until the full amount of tax delinquency due including all expenses is collected from the taxpayer. Otherwise, a clever taxpayer who is able to conceal most of the valuable part of his property would escape payment of his tax liability by sacrificing an insignificant portion of his holdings (Sec. 217, NIRC). 4. FORFEITURE: It implies a divestiture of property without compensation in consequence of a default or offense. The effect of forfeiture is to transfer the title of the specific thing from the owner to the government. (De Leon, NIRC Annotated, p. 412)
A) Remedy of enforcement of forfeitures

Forfeiture of chattels and removable fixtures: enforced by the seizure, sale or destruction of the specific forfeited property. Forfeiture of real property: enforced by a judgment of condemnation and sale in a legal action or proceeding civil or criminal as the case may require Action to contest forfeiture of chattel In case of the seizure of personal property under claim of forfeiture, the owner desiring to contest the validity of the forfeiture may, at any time before sale or destruction of the property, bring an action against the person seizing the property or having possession thereof to recover the same, and upon giving proper bond may enjoin the sale; or after the sale and within six months he may bring an action to recover the net proceeds realized at the sale.
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UNEP COLLEGE OF LAW

UNEP COLLEGE OF LAW TAXATION II REVIEWER

TAXATION II REVIEWER

B) Resale of real estate taken for taxes (RR No. 22-2002) All acquired/forfeited properties transferred in the name of the Republic of the Philippines, having passed the one-year redemption period, shall be converted into cash from the date of acquisition or forfeiture. The sale of acquired/forfeited real properties shall be by sealed bids in a public auction to be witnessed by a representative of the COA. The Notice of Sale of the acquired real properties shall be published once a week for two (2) consecutive weeks in a newspaper of general circulation in the Philippines which must be completed at least 20 days prior to the date of such public auction. Unless the Commissioner of Internal Revenue provides otherwise, the Minimum Bid Price/Floor Price shall be the latest fair market value as determined by the Commissioner or the fair market value shown in the latest tax declaration issued by the provincial, city or municipal assessor, whichever is higher, pursuant to Sec. 6(E) of the Tax Code. Anyone could bid except foreign nationals, corporate or otherwise, and those qualified under existing laws, rules and regulations, including employees of the Bureau of Internal Revenue. Bidders shall be required to post a bond in cash or managers check in an amount representing 10% of the minimum bid price at least one day before the scheduled public auction. Unless the Commissioner allows extension of time to pay, in meritorious cases, the winning bidder shall pay the full amount of his bid cash or managers check within two days after receipt of notice of award. All taxes and expenses relative to the issuance of title shall be borne by the winning bidder. The winning bidder shall be responsible at his own expense for the ejectment of squatters and/or occupants, if any, of the auctioned property. Negotiated or private sale shall be resorted to as a consequence of failed public bidding for two consecutive times. Negotiated or private sale shall in all cases be approved by the Secretary of Finance. Public auction sale shall be approved by the Commissioner or his authorized representative.
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UNEP COLLEGE OF LAW

TAXATION II REVIEWER

The Government reserves the right to reject or cancel any or all bids. C) When property to be sold or destroyed Forfeited chattels and removable fixtures sold in the same manner and under the same conditions as the public notice and the time and manner of sale as are prescribed for sales of personal property distrained for the non-payment of taxes. Distilled spirits, liquors, cigars, cigarettes, other manufactured products of tobacco and all apparatus used in or about the illicit production of such articles destroyed by the order of the Commissioner when the sale or use would be injurious to public health pr prejudicial to the enforcement of the law. All other articles subject to excise tax manufactured or removed in violation of the Code, dies for the printing or making of internal revenue stamps and labels sold or destroyed in the discretion of the Commissioner. Forfeited property shall not be destroyed until at least 20 days after seizure. (Sec. 225, NIRC) D) Disposition of funds recovered in legal proceedings or obtained from forfeiture All judgments and monies recovered and received for taxes, costs, forfeitures, fines and penalties shall be paid to the Commissioner or his authorized deputies as the taxes themselves are required to be paid, and except as specially provided, shall be accounted for and dealt within the same way. (Sec. 226, NIRC) Effect of the forfeiture of property: The effect is to transfer the title to the specific thing from the owner to the government. All the proceeds in case of a sale go to the coffers of the government (U.S. vs. Surla, G.R. No. 6536, September 2, 1911) In seizure for the enforcement of a tax lien, the residue after deducting the tax liability and expenses will go to the taxpayer ( Bank of the Phil. Island vs. Trinidad, G.R. No. 16014, October 4, 1941) 5. COMPROMISE AND ABATEMENT 1. Compromise a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced. Courts may reject a compromise or settlement when it is contrary to law, morals, good customs, public order, or public policy. The CTA may issue an injunction to prevent the Government from collecting
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UNEP COLLEGE OF LAW

TAXATION II REVIEWER

taxes under a compromise agreement especially when the agreement is prejudicial to the government. Grounds for a compromise: The Commissioner may compromise the payment of any internal revenue tax in the following cases: 1) A REASONABLE DOUBT as to the validity of the claim against the taxpayer exists; 2) The financial position of the taxpayer demonstrates a clear inability to pay the assessed tax. (FINANCIAL INCAPACITY) What are the limits of the Commissioners power to compromise? For cases of financial incapacity: a minimum compromise rate equivalent to ten percent (10%) of the basic assessed tax; For other cases: a minimum compromise rate equivalent to forty percent (40%) of the basic assessed tax Note: When the basic tax involved exceeds One Million Pesos (P1,000,000), or where the settlement offered is less than the prescribed minimum rates, the compromise must be approved by the National Evaluation Board (composed of the Commissioner and 4 Deputy Commissioners). When the basic deficiency taxes are P500,000 or less, and Minor criminal violations are discovered by the Regional and District Offices, shall be subject to the approval by the Regional Evaluation Board (REB). All other offers of compromise shall be approved by a majority of all the members of the National Evaluation Board (NEB). Cases that may be Compromised (RR. 30-2002): 1. Delinquent Accounts; 2. Cases under administrative protest after issuance of the final assessment notice to the taxpayer which are still pending in the Regional Offices, Revenue District Offices, Legal Service, Large Taxpayer Service, Collection Service, Enforcement Service, and other offices in the National Office; 3. Civil tax cases being disputed before the courts; 4. Collection cases filed in courts; 5. Criminal violations Except: those already filed in court those involving criminal tax fraud
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UNEP COLLEGE OF LAW

TAXATION II REVIEWER

2. Abatement (see R.R. No. 15-2006) The entire tax liability of the taxpayer is cancelled. Authority to Abate: The Commissioner has the sole authority to abate or cancel internal revenue taxes, penalties, and/or interest pursuant to Section 204(B), in relation to Section 7(c), both of the Tax Code. When may the Commissioner abate or cancel a tax liability? The Commissioner may abate or cancel a tax liability when: 1) The tax or any portion thereof appears to be UNJUSTLY or EXCESSIVELY ASSESSED; or 2) The ADMINISTRATION and COLLECTION COSTS do not justify the collection of the amount due. (e.g. when the costs of collection are greater than the amount of tax due) Instances of Unjust and Excessive Tax Assessment: 1. Filing of the return/payment of tax at the wrong venue; 2. Taxpayers mistake in payment of tax is due to erroneous written official advice of a Revenue Officer; 3. Taxpayers failure to file the return and pay the tax on time is due to Substantial losses from prolonged labor dispute, force majeure, legitimate business reverses such as labor strike for more than 6 months which has caused temporary shutdown of business, natural calamity, public turmoil, etc., Provided, that the abatement shall cover only the surcharge and the compromise penalty and not the interest imposed under Section 249, NIRC; 4. Assessment resulted from taxpayers non-compliance with the law due to a difficult interpretation of said law; 5. Taxpayers failure to file the return and pay the correct tax on time due to circumstances beyond his control, Provided, that abatement shall cover only the and the compromise penalty and not the interest; 6. Late payment of tax under meritorious circumstances (ex. Failure to beat bank cutoff time, surcharge erroneously imposed, use of a worng tax form but correct tax amount); 7. Other similar or analogous cases. Instances when the tax liabilities, penalties, and/or interest imposed on the taxpayer may be abated bn the ground that tax administration and collection cost are more than the amount sought to be collected: 1. Abatement of penalties on assessment confirmed by the lower court but appealed by the taxpayer to a higher court;
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2. Abatement of penalties on withholding tax assessment under meritorious circumstances. 3. Abatement of penalties on delayed installment payment under meritorious circumstances; 4. Abatement of penalties on assessment reduced after reinvestigation but the taxpayer still contesting reduced assessment; and 5. Other analogous instances.

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1) Straight-line =

cost- salvage value estimated life 2) Declining = cost depreciation x Rate Balance estimated life 3) Sum of the = nth period x cost- salvage yrs years digits SYD