BIR Ruling [DA-638-04]

December 16, 2004 BIR RULING [DA-638-04] Antonio S. Estrella Block 38, Lot 16 Molave Street, Green Meadows Subdivision Barangay Sto. Nio, Tugbok District Davao City S i r : This refers to the opinion rendered by this Office in BIR Ruling No. DA-190-04 dated April 6, 2004 that you are not entitled to retirement benefits despite the grant of your petition for Executive Clemency in OP Case No. 99-J-8878 dated May 14, 2003. The denial of your retirement benefits was founded on the ground that your conviction was beyond reasonable doubt of the crime of Malversation of Public Funds and also found guilty for Dishonesty and Violation of Office Rules and Regulations which eventually resulted to your dismissal from public service. However, Ms. Karin Litz P. Zerna, Acting Director IV in the Office for Legal Affairs of the Civil Service Commission, rendered an opinion dated November 9, 2004 that you may avail of retirement benefits provided that all the requirements qualifying you to retire have been met. IDScTE The opinion rendered by the Civil Service Commission provides to wit: "Nonetheless, on the assumption that the grant of executive clemency to Estrella is plenary and absolute, it is our considered view that Estrella may avail of retirement benefits assuming that he met all the requirements to qualify him to retire. It must be stressed that Estrella is requesting that he be allowed to retire and avail of all retirement benefits and not the payment of his back salaries." Furthermore, the case of Sabello vs. DECS, 180 SCRA 623 was cited in the same opinion, the pertinent portion of which states: " . . . (P)ardon frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. Although such pardon restores his eligibility to a public office it does not entitle him to automatic reinstatement. He should apply for re-appointment to said office. xxx xxx xxx However, the Court cannot grant his prayer for backwages from September 1, 1971 to November 23, 1982 since in Monsanto this Court said he is not entitled to automatic reinstatement. Petitioner was lawfully separated from the government service upon his conviction for an offense. Thus, although his reinstatement had been duly authorized, it did not thereby entitle him to backwages. Such right is afforded only to those who have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charge against them. In the same light, the Court cannot decree that his government service be made continuous from September 10, 1948 to the present when it is not. At any rate, when he reaches the compulsory age of retirement, he shall get the appropriate retirement benefits as an Elementary School Principal and not as a mere classroom teacher." ( Emphasis supplied ) In view of the foregoing, this Office is of the opinion that since the grant of Executive Clemency to Mr. Estrella does not impose any other terms and conditions on the grantee, all the disabilities, inherent to his dismissal are therefore considered removed. Thus, you are now entitled to claim your retirement benefits and terminal leave benefits, if any, at the time of dismissal. This modifies BIR Ruling No. DA-190-04 dated April 6, 2004 insofar as the latter denied your claim for retirement benefits. Very truly yours, Commissioner of Internal Revenue By: (SGD.) JOSE MARIO C. BUAG Deputy Commissioner Legal and Inspection Group