PEOPLE OF THE PHILIPPINES VS.

GLORIA KINTANAR

DOCTRINE: Elements of Violation of Section 255, for failure to make or file a return, are as follows:
(1) accused is a person required to make / file a return; (2) accused failed to make / file a return at the
time required by law; and (3) failure to make or file the return was “willful”.

FACTS:

 In two separate Informations, Gloria V. Kintanar (petitioner) was charged with Violation of
Section 255 of RA No. 8424, the accusatory portions of which read as follows:
o Criminal Case No. O-033
 That on or about the 16th day of April 2001, in Parañaque City, Phiippines, and
within the jurisdiction of this Honorable Court, the above-named accused, a
Filipino citizen residing in the Philippines, who is engaged in business and
earning income as distributor of Forever Living Products Philippines, Inc., (FLPPI)
with obligation under the law to file her Income Tax Return (ITR) for the taxable
year 2000 on or before the 15th day of April 2001, did, then and there, wilfully,
unlawfully and feloniously fail to file her ITR with the BIR for the year 2000, to
the damage and prejudice of the Government in the estimated amount of
P1,329,319.95 exclusive of penalties, surcharges, and interest.
o Criminal Case No. O-034
 (Same content) but for the taxable year 2001 and estimated amount was
P1,517,242.12. Petitioner pleaded “not guilty” to the crimes charged.
 Prosecution:
o Based on confidential information received by the National Investigation of the BIR on
the alleged tax evasion scheme of spouses Benjamin and Gloria Kintanar for non-filing of
income tax returns, Armando Rosimo (Chief of Tax Fraud Division) issued an Access
Letter to the Revenue District Officer (RDO) of Paranaque City to furnish the BIR
investigation Revenue officers copies of spouses Kintanar’s 1) ITR with Financial
Statements; 2) VAT returns; 3) percentage tax returns; and 4) BIR Registration
Certificate.
o Rosimo likewise issued another access letter to the Managing Director of FLPPI to also
furnish the BIR Investigation Revenue Officers a certification of the total income
payments/commissions and bonuses earned by spouses Kintanar, together with the
amount of taxes withheld for calendar years 1996 to 2001, as distributors or
independent contractors of FLPPI.
o RDO of Paranaque City issued a certification stating that spouses Kintanar have no
record or file for the years 1999 to 2001.
o On the other hand, Michael Cajandab, Comptroller of FLPPI sent a letter-reply,
indicating therein the total income of Gloria Kintanar for calendar years 1999 to 2001.
o After initial investigation, the BIR Investigation Revenue Officers found that spouses
Kintanar were able to generate a large amount of income, as distributors or
independent contractors of FLPPI.
 o Thereafter, through a Letter of Authority, the investigation officers were authorized to
examine the books of accounts and accounting records for all internal revenue taxes for
taxable years 1999 to 2002 of spouses Kintanar.
o Petitioner’s husband also received the LOA, however, spouses failed to submit the
required documents. Thus a 2nd Request was issued to them, and further, a final notice.
o Despite several notices, spouses Kintanar failed to submit the required documents. Thus
a subpoena duces tecum was issued ordering them to appear before the Chief
Prosecution Division, and to bring their books of accounts for taxable years 1999 to
2002.
o Again, spouses failed to comply. Rosimo then sent another letter informing the spouses
that the investigation conducted on them were already sent to the Tax Fraud Division
and requested them to appear, for failure shall be deemed a waiver of their right to
conference.
o A preliminary assessment was made, and spouses Kintanar were given 15 days to
explain the discrepancies.
o Again, spouses failed to comply. Thus, a memorandum was issued, recommending an
issuance of Formal Demand Letter, which was later issued against the spouses,
requesting them to pay their deficiency income and VAT liabilities.
o Later, a letter of protest from petitioner’s husband was sent to the National
Investigation Division, who undertook to submit the documents within 60 days thereof,
which the NID approved.
o Again, spouses Kintanar failed to comply. Thus, the assessments became final,
executory, and demandable.
o Prosecution also presented heads of three BIR RDO’s, which also testified that no record
of any ITR’s were filed by petitioner, nor her husband for taxable years 1999, 2000 and
2001.
o Thus, the prosecution found that petitioner failed to file her ITR’s for the years 1999 to
2001 and found her liable for deficiency income taxes, arising from income earned from
FLPPI.
 Defense:
o Petitioner presented documentary evidences, such as (1)certificates of creditable tax
withheld for the years 2000 and 2002; (2) joint annual income tax returns; and (3)
identical certifications issued by a RDO of Novaliches, which according to petitioner
establishes:
 She substantially testified that she filed her ITR’s for taxable years 2000 and
2001, and denies having unlawfully failed to file her ITR’s on said years;
 That she has no personal knowledge of actual filing of said returns because it
was her husband who filed their ITR’s.
 That she receives commission from FLPPI from 1996 to present through check
payments.
o Petitioner also presented her husband as a witness, substantially testifying that:
 He was the one who filed their ITR’s;
 That they filed joint ITR’s from years 1997 to 2004 through their accountant;
That it was their accountant who prepared the ITR’s;
That he gave all the necessary documents for filing the ITR’s;
That he relied on their accountant in preparing the ITR’s;
That he just browsed the ITR’s; thus he has no knowledge of the amount and
where the ITR’s were filed.
 CTA Second Division ruled that:
o Petitioner is guilty beyond reasonable doubt of violation of Section 255 of the NIRC of
1997, in both Criminal Case No. O-033 and O-034.
o M/R denied.

ISSUE/S:

WON Petitioner is liable for violation of Section 255 of the NIRC of 1997 (Failure to make/file a return)

RULING of CTA En Banc:

 Yes. Petitioner is liable.

 Section 255 contemplates four different situations punishable by law, each of which constitutes
failure to perform in a timely manner, an obligation imposed by the NIRC, to wit: 1) pay any tax;
2) to make a return; 3)keep any record; and 4) to supply correct and accurate information.
o Elements of Violation of Section 255, for failure to make or file a return, are as follows:
 Accused is a person required to make / file a return;
 Accused failed to make / file a return at the time required by law; and
 Failure was willful.
 Petitioner testified that she and her husband were engaged in business and earned income in
the form of commissions, as distributors or independent contractors of FLPPI. Petitioner also
admitted that she received checks issued by FLPPI, as her payment/commission. Considering
that petitioner earned a substantial income, as distributor or independent contractor of FLPPI,
she is, therefore, required to make or file her annual ITR.
As to the second element, the testimonial and documentary evidence adduced by the
prosecution shows that petitioner failed to make or file her ITR’s for taxable years 2000 and
2001.
 Pursuant to Section 51 of the NIRC, a person with legal residence or principal
place business in the Philippines, shall file his return with an authorized agent
bank, RDO, Collection Agent, or duly authorized Treasurer of the city /
municipality.
 Petitioner was supposed to register, file her ITR and pay the
corresponding income taxes due with the authorized agent bank, RDO,
Collection Agent, or duly authorized Treasurer of the city / municipality,
where she has her legal residence or principal place of business.
However, upon thorough investigation, petitioner has no record of filing
of the required ITR’s. Prosecution has established that petitioner was a
 resident of Paranaque. Therefore, petitioner should have filed her ITR’s
in Paranaque City. However, there is no record of filing as certified by
the RDO of Paranaque for the years 1999 to 2001.
 The presented evidences by the petitioner (2 ITR’s) were given no
credence since the same were of doubtful authenticity, materially
flawed with irregularities.
As to the third element of “willfulness”, the prosecution has sufficiently proven beyond
reasonable doubt that petitioner deliberately failed to make of file a return.
o Willful in the tax crimes statutes means voluntary, intentional violation of a known legal
duty, and bad faith or bad purpose need not be shown. An act or omission is “wilfully”
done if done voluntarily and intentionally with specific intent to do something the law
forbids or with specific intent to fail to do something the law requires to be done: that
is, with bad purpose to either disobey or disregard the law.
o Petitioner defenses that: 1) she did not actively participate in the filing of her joint ITR’s
with her husband; 2) her husband hired an accountant to handle their tax obligations;
and 3) there was no voluntary, intentional, deliberate failure to file a return on her part,
cannot be sustained.
 (1) Petitioner’s sole reliance in her husband to file their ITR’s is not a valid
reason to justify her non-filing, considering she knew from the start that she and
her husband are mandated by law to file their ITR’s (Married individuals, Section
51, NIRC).
 (2) Petitioner cannot find solace on her claim that her husband hired an
accountant to handle their tax obligations. This allegation was a bare testimony
of petitioner’s husband and yields nothing, but mere uncorroborated
statements.
 (3) Court finds no affirmative acts on the part of the petitioner to make sure
that her obligation to file her ITR’s had been fully complied with. Such neglect or
omission is tantamount to “deliberate ignorance” or “conscious avoidance”.
Despite several notices (starting from April 2003 until December 2004) sent by
the BIR to comply with her tax obligations which and were received by her, she
opted not to comply. Evidence on record only show that only a protest letter
made by petitioner’s husband dated August 2004 was the only reply given by
her. It took petitioner more than a year to send said reply. Evidently, such non-
compliance with the BIR’s notices clearly shows petitioner’s intent not to file her
ITR’s.
 Therefore, the Court En Banc is convinced that prosecution has established the guilt of
petitioner beyond reasonable doubt. Petition is denied.