Recommendation for Grant of Executive Clemency to Cresenciano F. Esquivel

August 11, 1999 BIR RULING NO. 119-99 119-99 Office of the President of the Philippines Malacaang Manila Attention: Dr . Raul P . de Guzman, Ph . D . Presidential Adviser for Development Administration Gentlemen : This refers to your letter dated June 10, 1999 relative to the Indorsement letter of the Honorable Gaudencio A. Mendoza, Assistant Executive Secretary dated June 1, 1999 on the request of Mr. Cresencio Esquivel, for Executive Clemency which was favorably recommended to the President by the Honorable Harriett Demetriou, Chief Presidential Legal Counsel through her Memorandum dated November 16, 1998. Mr. Cresenciano Esquivel was a former Revenue Collection Agent of the Bureau of Internal Revenue assigned in Jaen, Nueva Ecija; that he was in charge of collecting, safekeeping and remitting to the national Treasury the internal revenue taxes, dues and fees collected and received by him at the said municipality; that in 1983, Mr. Esquivel was administratively charged, suspended and eventually terminated from work; that a Memorandum for the Ombudsman dated September 18, 1991, by Mr. Prospero G. Pelayo, the Special Prosecution Officer which was duly approved by the Hon. Conrado M. Vasquez, Ombudsman, insofar as pertinent states as follows: ". . . the deputized Ombudsman prosecutor Arsenio Adriano of the Office of the Provincial Prosecutor of Nueva Ecija recommended the filing of an information for Malversation of public funds against the respondent; ". . . Since September 21, 1981 when he assumed the said position up to December 31, 1982, he only made five (5) remittances amounting to P10,061.32, although his total revenue collection amounts to P129,965.56, thereby incurring a shortage of P119,204.24. The respondent refused to render an account despite repeated demands. The BIR auditors were not able to conduct the audit as the respondent could not be contacted in his office. "The evidence on record are insufficient to establish a probable cause, as the allegation in the complaint that the total collection of the respondent from September 1, 1981 to December 31, 1982 in the amount of P129,965.56 and the shortage in the sum of P119,904.24 are not supported by any evidence. In fact when the said auditor could not personally contact the respondent, for the intended audit, they just proceeded to determine his cash and other accountabilities by comparing his reported collection with that of his remittances as confirmed by the DBP. All these show there was no audit made and we cannot possibly establish a prima facie case for malversation of public funds without an audit report. "Wherefore, it is respectfully recommended that the said resolution be disapproved and that his case be referred to the COA, for an audit of the case and accountabilities of the respondent. . . ." that the dispositive position of COA Decision No. 99-018 reads as follows: "xxx xxx xxx Considering that the subject accounts of Mr. Esquivel could no longer be documented due to loss or unavailability of pertinent documents and records, and in view of the favorable recommendation of Deputy Commissioner Beethoven L. Rualo, in a letter dated March 30, 1998, and of the Auditor, BIR, Q.C., in a 1st Indorsement, dated April 17, 1998, and in the interest of justice, this Commission hereby grants the request of Mr . Cresenciano F . Esquivel for relief from accountability for the outstanding balances in the amount of P126,735 . 54 . Accordingly, a journal voucher may now be drawn dropping the subject account from the books of the agency with these papers as supporting documents, a copy of which shall be furnished the Auditor for audit and final custody . (Emphasis supplied)." In view of the foregoing, this Office hereby recommends that Mr. Cresenciano F. Esquivel be granted Executive Clemency on the administrative case filed against him. Moreover, in view of the fact that he can no longer be reinstated because he has already reached retirement age and inasmuch as the charge for malversation against Mr. Esquivel was dismissed due to insufficiency of evidence and since this Office favorably recommended that executive clemency be granted him with respect to his administrative case, the grant of his retirement benefits is in order. Considering further that the administrative case filed against Mr. Esquivel, for which an order of suspension was issued on July 5, 1983, was already terminated, the payment of his retirement benefits, must take into consideration the date of his suspension from work up to the date of his compulsory retirement. LLphil He shall be entitled to backwages from the date that his salary was stopped during the pendency of the administrative and criminal charges against him up to the date of his compulsory retirement. Very truly yours, (SGD.) BEETHOVEN L. RUALO Commissioner of Internal Revenue