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Republic of the Philippines)S.S.

Manila
)

COUNTER AFFIDAVIT
WE, TEODORO G. BERNARDINO and ELEANORE B. GUTIERREZ, both c/o Loadstar
International Shipping, Inc. with business located at 1294 Loadstar Bldg., Romualdez Paco, Manila,
Manila after having been sworn in accordance with law, depose and state:
1. That we are unfairly and indiscriminately charged before this Honorable Office by
the Bureau of Internal Revenue, represented by Atty. Christopher G. Eugenio for
Violation of Sections 5 and 14, penalized under Section 266 in relation to Section
253 (d) and 256 of the Tax Code of 1997;
2. That the subpoena duces tecum was served in contravention of the rules and
prevailing jurisprudence on the matter.
3. That in the Affidavit of Service of Subpoena Duces Tecum, there is no indication or
even a hint that previous efforts were made to locate the persons named in the
subpoena, or that the summons or subpoena was served upon a person who is in
charge of the office or regular place of business of the named respondents. ;
4. That there was only one attempt made to serve the subpoena, that is on January 20,
2015. After the officers went to the office/business address at such date, they just
immediately left the subpoena to one RIANNE GUSTILO Nowhere can it be found
in their return or Affidavit of Service, or any other document in the complaint for that
matter that such substituted service was resorted to because they failed to locate our
persons, as named respondents, despite reasonable efforts in doing so.
5. That the truth is that no efforts were ever exerted to locate our persons in order to
serve the subpoena personally. From what they have been informed, the officers
serving the subpoena, upon arriving at our place of work simply asked the first
person they saw there if we were in the said place. This person happened to be
RIANNE GUSTILO, who is just a TELEPHONE OPERATOR. Upon being
informed of our absence, they simply left the subpoena and asked RIANNE
GUSTILO to receive the same. Applying the rules and the law to the factual
circumstances in this case, it is evident that the service of the subpoena, which is the
sole basis of the complaint, was ineffective. As such, it is considered to have no force
and effect;
6. That aside from not being served with summons in the manner required under the
law, we were totally unable to receive the subpoena itself. The person to whom it was
given neither provide us the copy of the subpoena, nor did she notify us of its
existence and contents. It was only when we received the instant complaint did we
come to know that such subpoena had, indeed, been issued against us.
7. That in sum, we submitted that there is no legal basis to hold that the crime
complained of has been committed. We were not duly served with summons, as we
did not in fact receive the same. Absent any service of summons on our person, we
cannot be said to have neglected to comply with its directives.

8. That the complainant did not complied with the procedure of service. The Revenue
Officer who served the subpoena should have complied with what is required of him
in connection with the service of the subpoena duces tecum (SDT) particularly under
III.D. 1 and IV.B of the same memorandum order which has been in effect for almost
a year prior to the filing of this case, to wit:
D. Service of SDT
1. The duly issued SDT must be served within three (3) working days from
receipt by the concerned Revenue Officers. Rule 14 of the Rules of Court
governs the procedure to be observed in matters relating to service of SDTs.
Thus, strict compliance with following rules of procedure is hereby
enjoined:
a. Whenever practicable, the SDT shall be served by handling a copy thereof
to the person named therein, or, if he refuses to receive and sign for it, by
tendering it to him, witnessed by another revenue officer accompanying the
server.
b. If, for justifiable causes, personal service cannot be made, service may be
effected:
b.1. By leaving a copy of the SDT at the dwelling place or residence of the
subject individual, with some person of suitable age and discretion then
residing therein, witnessed by another revenue officer accompanying the
server; or
b.2 By leaving a copy at the office or regular place of business of the person
named therein, with some competent person in charge thereof, witnessed by
another revenue officer accompanying the server.
IV. FILING OF A CASE FOR FAILURE TO OBEY SDT
A. Xxx xxx
xxx
B. In preparation of the Affidavit Complaint, the Revenue Officers, as the persons who
have personal knowledge of the non-compliance with the SDT because they are the
ones who requested for the issuance of the SDT, served the same to the taxpayer, and
were present during the compliance date indicated in the SDT shall be the
complainants.
9. That in view of the forgoing, we are requesting for the DISMISSAL of the instant
case against us.

TEODORO G. BERNARDINO

ELEANORE B. GUTIERREZ
Affiant

Affiant

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