DOJ Opinion No. 017, s. 1992

DOJ OPINION NO. 017 , s. 1992 February 17, 1992 Atty. Eustaquio S. Beltran Manubay Bldg. E. Angeles cor. Dimasalang Sts. Naga City Sir : This has reference to your consult/appeal in behalf of your client, Mrs. Crescenciana Tible, on the action taken by the Office of the Provincial Prosecutor in declining to render a legal opinion on the legality or illegality of a municipal tax ordinance of Calabanga, Camarines Sur. You state that, on the basis of Section 47 of the Local Tax Code, you sought the legal opinion of the Provincial Prosecutor on the legality of Municipal Resolution No. 88-67 entitled, "Resolution Increasing the Rate of Imposition of the Municipal Tax Ordinance", which has been in force since 1988. Unable to determine if the questioned Resolution had been approved by the Provincial Board of Camarines Sur, the Provincial Prosecutor Office ruled that it cannot render legal opinion on the matter. Your motion for reconsideration, likewise, did not bring the desired opinion from that office which denied the same for lack of merit. Hence, this appeal. dctai Quoted hereunder are the pertinent provisions of the Local Tax Code, the law in force at the time of enactment of the resolution in question: "Sec. 44. Review and Suspension of Tax Ordinance . . . . The Secretary of Finance, the provincial treasurer of the city treasurer, as the case may be, shall review and have the authority to suspend the effectivity of any tax ordinance within one hundred and twenty days after receipt of a copy thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust, excessive, oppressive, confiscatory, or not among those that the particular local government may impose in the exercise of its power in accordance with this code; or when the tax ordinance is, in whole or in part, contrary to declared national economic policy; when the ordinance is discriminatory in nature on the conduct of business of calling or in restraint of trade" xxx xxx xxx "Sec. 45. Formal Protest Against a Tax Ordinance . A formal protest based on grounds provided in the preceding section may be filed with the Secretary of Finance within one hundred and twenty days after the approval of the tax ordinance of any local government, or after the date of the initial implementation thereof, and the Secretary shall have sixty days, after receipt of the protest, to decide the same . . ." xxx xxx xxx Sec. 47. Question on the Legality of a Tax Ordinance . Any question or issue raised against the legality of any tax ordinance, or portion thereof, on grounds other than those mentioned in Section 44 of this code, shall be referred for opinion to the Provincial Fiscal, in the case of provincial, municipal and barrio tax ordinances, . . . The opinion of the Provincial . . . fiscal . . . shall be appealable to the Secretary of Justice . . .". A perusal of your letter dated April 12, 1991 to the Office of the Provincial Prosecutor, together with your letter of December 9, 1991, shows, and we note, that the grounds you invoke against the tax ordinance in question are the same grounds provided for in Section 44 of the Local tax Code, viz; the tax or fee therein levied or imposed is excessive, oppressive or confiscatory, and which under Section 45 thereof, are grounds for filing of a "formal protest against a tax ordinance" with the Secretary of Finance who is vested with jurisdiction to decide such protest (Sec. of Justice Opn. No. 15, s. 1975; No. 153 & 176, s. 1989). The Secretary of Justice may pass upon appeals from the opinion of the Provincial Prosecutor questions or issues raised against the legality of a tax ordinance only on grounds other than those mentioned in Section 44 of the same code (id., No. 57, s. 1977; No. 153 & 176, s. 1989). prcd In this connection, we may invite attention to Section 187 of the Local Government code of 1991 (R.A. No. 7160, effective January 1, 1992) which repealed the Local Tax Code (P.D. No. 231, as amended), viz: "Sec. 187. Procedure for Approval and Effectivity of Tax Ordinances and Revenue Measures; Mandatory Public Hearings . . . . Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the appeal: . . .". The new protest procedure in the aforequoted provision of the local Government Code would, however, be applicable only to ordinances enacted after the effectivity of the said provision in accordance with rule in this jurisdiction that laws should be considered as prospective in its operation unless the language of law clearly demands or expresses that it shall have a retroactive effect. Very truly yours, (SGD.) EDUARDO G. MONTENEGRO Acting Secretary