Commissioner of Internal Revenue v. Court of Tax Appeals-Second Division

EN BANC [C.T.A. EB CASE NO. 2580. January 26, 2024.] (C.T.A. Case No. 10450) COMMISSIONER OF INTERNAL REVENUE , petitioner , vs. THE COURT OF TAX APPEALS-SECOND DIVISION AND NIPPON EXPRESS PHILIPPINES CORPORATION , respondents . RESOLUTION REYES-FAJARDO , J p : In the Decision dated August 29, 2023, 1 Associate Justices Marian Ivy F. Reyes-Fajardo, Jean Marie A. Bacorro-Villena, 2 Lanee S. Cui-David, 3 and Corazon G. Ferrer-Flores 4 voted to dismiss CTA EB No. 2580, because the Court of Tax Appeals (CTA) En Banc lacks jurisdiction over a Petition for Certiorari under Rule 65 of the Rules of Court, as amended, challenging an interlocutory order of the CTA in Division. On the other hand, Presiding Justice Roman G. del Rosario wrote a Dissenting Opinion. Joining in said Dissenting Opinion were Associate Justices Ma. Belen M. Ringpis-Liban, Catherine T. Manahan, and Maria Rowena Modesto-San Pedro. Considering that the majority vote was not obtained, the Petition for Certiorari , 5 posted on February 2, 2022, by petitioner is dismissed, pursuant to Section 3, 6 Rule 2 of the Revised Rules of the Court of Tax Appeals. HTcADC In his Motion for Reconsideration (Re: Decision promulgated on 29 August 2023), 7 petitioner maintains that the CTA En Banc possesses jurisdiction over a special civil action for certiorari under Rule 65 of the Rules of Court, as amended, assailing the interlocutory orders issued by the CTA in Division. Via Comment and Opposition (to the Motion for Reconsideration dated 15 September 2023), 8 private respondent counters that the CTA En Banc lacks jurisdiction over interlocutory orders issued by the CTA in Division. The Petition for Certiorari challenges the resolution of the CTA in Division, allowing it to present evidence ex parte for petitioner's failure to file a hard copy of his answer. As it did not dispose of the case on the merits, it is an interlocutory order, over which the CTA En Banc lacks jurisdiction. The Motion is denied. Again, the Resolutions dated July 21, 2021 and November 17, 2021, issued by the CTA in Division, subject of the challenge of petitioner's Petition for Certiorari here are interlocutory orders because these resolutions, i.e. , private respondent was allowed to present evidence ex parte , for petitioner's failure to file a hard copy of his answer, did not address the merits of CTA Case No. 10450; precisely, the CTA En Banc has no jurisdiction over the subject matter of this case. In addition, Commissioner of Internal Revenue v. Court of Tax Appeals (First Division), et al. , 9 categorically pronounced that ". . . the proper remedy against an interlocutory order issued by the CTA in Division is a Petition for Certiorari before [the Supreme] Court. . ." This underpins the conclusion that jurisdiction over a special civil action for certiorari , impugning the interlocutory order issued by the CTA in Division lies with the Supreme Court, and not with the CTA En Banc . WHEREFORE , petitioner's Motion for Reconsideration (Re: Decision promulgated on 29 August 2023) is DENIED , for lack of merit. SO ORDERED. CAIHTE (SGD.) MARIAN IVY F. REYES-FAJARDO Associate Justice Jean Marie A. Bacorro-Villena, Lanee S. Cui-David, Corazon G. Ferrer-Flores and Henry S. Angles, JJ. , concur. Roman G. del Rosario, P.J. , with due respect, I reiterate my dissenting opinion. Ma. Belen M. Ringpis-Liban, J. , with due respect, I join the dissenting opinion of P.J. Del Rosario. Catherine T. Manahan, J. , with due respect, I maintain my vote to join P.J. Del Rosario's dissenting opinion. Maria Rowena Modesto-San Pedro, J. , with due respect, I maintain my position, joining P.J. Del Rosario's dissenting opinion. Footnotes 1. Rollo , pp. 178-186. 2. Separate Concurring Opinion. 3. Separate Concurring Opinion. 4. Joined the Separate Concurring Opinion of Associate Justice Lanee S. Cui-David. 5. The Petition for Certiorari filed by the Commissioner of Internal Revenue under Rule 65 of the Rules of Court, as amended, is an original action, and not a mode of appeal. See Paa v. The Hon. Court of Appeals, et al ., G.R. No. 126560, December 4, 1997. 6. Section 3. Court en banc; quorum and voting. The presiding justice or, if absent, the most senior justice in attendance shall preside over the sessions of the Court en banc . The attendance of five (5) justices of the Court shall constitute a quorum for its session en banc . The presence at the deliberation and the affirmative vote of five (5) members of the Court en banc shall be necessary to reverse a decision of a Division. . . Where the necessary majority vote cannot be had, the petition shall be dismissed ; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. (Boldfacing supplied) 7. Rollo , pp. 210-224. 8. Id. at pp. 233-238. 9. G.R. No. 210501, March 15, 2021.