Power — Promulgation of Rules

October 23, 1979 BIR RULING NO. 095-B-79 Power promulgation of Rules This refers to your request for opinion as to whether the Ministry of Finance may continue to issue rules and regulations pursuant in Section 326 of the National Internal Revenue Code which vests in the Minister of Finance upon recommendation of the Commissioner of Internal Revenue the power to promulgate rules and regulations for the enforcement of revenue laws, in view of the provision of Presidential Decree No. 1603 which grants each ministry, bureau or office of the Government "the power to promulgate such rules and regulations as shall be necessary for the effective implementation of the provision of laws, decrees, orders or instructions pertaining to such ministry, bureau or office or which it is in charge of enforcing, unless the contrary is specifically provided." If this Ministry's ruling is in the affirmative, you also request opinion on whether said regulations issued by the Ministry of Finance have to be published in the Official Gazette. Subject to the extended discussion hereinafter set forth, we answer your first question in the affirmative and your second question in the negative. Under the above-quoted provision of P.D. No. 1603, each ministry, bureau, or office shall promulgate rules and regulations to implement the statutes which it has to enforce, "unless the contrary is specifically provided," in other words, unless there is a specific provision in the statute to be enforced granting such power to specific office or officer. Section 326 of the National Internal Revenue Code is such a provision insofar as the promulgation of rules to enforce the said Code is concerned for it in fact vests the authority to promulgate rules to implement the provisions of said Code in the Minister of Finance upon the recommendation of the Commissioner of Internal Revenue. As the Minister of Finance does not exercise his authority to issue said rules Pursuant to P.D. No. 1603, the requirement in said decree regarding publication in the Official Gazette of the rules issued pursuant to said decree would not apply to the rules issued by the Minister of Finance in this regard. In connection with the first query, Section 1 of P.D. No. 1603 provides insofar as pertinent: "SEC. 1. Each ministry, bureau or office of the Government shall have the power to promulgate such rules and regulations as shall be necessary for the effective implementation of the provisions of laws, decrees, orders or instructions pertaining to such ministry, bureau or office or which it is in charge of enforcing, unless the contrary is specifically provided . . . ." (Emphasis supplied.) On the other hand, the cited provision of the National Internal Revenue Code reads: "SEC. 326. Authority of Secretary of Finance to promulgate rules and regulations . The Secretary of Finance, upon recommendation of the Commissioner of Internal Revenue, shall promulgate all needful rules and regulations for the effective enforcement of the provisions of this Code. . . " Stated differently, Section 1 of P.D. No. 1603 in a general conferment of authority on every ministry, bureau or office to promulgate rules and regulations in implementation of the law, decrees, orders or instructions in implementation of the law, decrees, orders or instructions pertaining to the respective agency in the absence of specific provision in the law, decree, order or instruction to be implemented vesting in a particular agency the authority to implement the same. Thus, the clear implication of Section 1 of P.D. No. 1603 is that where there is an express provision of law authorizing the particular government agency or officer to issue rules and regulations in implementation of a law, that agency or officer alone, to the exclusion of any other government agency, shall have the power to issue the pertinent rules and regulations. This, we think is the case here because Section 326 of the Tax Code expressly confers on the Ministry of Finance, upon recommendation of the Commissioner of Internal Revenue, the power to "promulgate all needful rules and regulations for the effective enforcement of the provisions of [the] Code." Needless to state, in the absence of such a provision in the Tax Code, the rule-making authority would be deemed vested, following the provision of Section 1 of P.D. No. 1603, in the Commissioner of Internal Revenue to whose office pertains the enforcement of the provisions of said Code (see Section 3, Tax Code). Regarding your second query, the pertinent provisions of P.D. No. 1603 are: "SEC. 1. . . . " Provided, That rules and regulations referred to in Section 2 of this Decree shall take effect fifteen days after their publication in the Official Gazette ." "SEC. 2. Any person who shall violate any rule or regulation promulgated pursuant to Section 1 hereof . . . ." Clearly, the publication requirement found in Section 1; supra , applies only to "rules and regulations referred to in Section 2 of this "Decree"; and Section 2 expressly refers to rules or regulations "promulgated pursuant to Section 1 hereof" [of said Decree.] Inasmuch as the regulations implementing the Revenue Code are issued by the Minister of Finance not pursuant to Section 1 of said decree but pursuant to Section 326 of the Revenue Code, the publication requirement in P.D. No. 1603 does not apply to such rules. Please be guided accordingly. Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice