Conflicting Zonal Valuations Issued by the BIR District Officer of RDO No. 44 on Expropriated Properties

DOJ OPINION NO. 020 , s. 2009 April 27, 2009 Mr. Patrick B. Gatan, CESO III Project Director IROW-PMO Department of Public Works and Highways Rosario, Pasig City Sir : This has reference to your request for opinion on the query stated therein relating to the alleged two (2) conflicting zonal valuations issued by the Bureau of Internal Revenue (BIR) District Officer of Revenue District Office No. 44 on the expropriated properties of Mesdames Nelly S. Sarabia and Louce S. Ozoa covered by TCT No. 9795 and Tax Declaration No. FL-013-01309 pursuant to the provisions of Department Order No. 54-97 1 dated May 28, 1997, and Republic Act No. 8974 2 and its Implementing Rules and Regulations. It appears that both parties (the DPWH and the Sarabias) have agreed that the government shall acquire the real property of the Sarabias needed as a right-of-way in the construction of the Metro Manila Flood Control Project-West of Mangahan Floodway through a negotiated sale; that both parties, in the determination of the just compensation, have adopted the value of the property based on the current relevant zonal valuation of the BIR which is fixed at P600.00 per square meter based on a certification issued by the latter dated December 15, 2004; that, however, when the Sarabias went to the BIR to pay the capital gains tax on the sale of their property, the BIR refused to accept the said payment based on the P600.00 per square meter on the ground that the current zonal valuation of the property is P2,000.00 per square meter; that there appears a certification previously issued by the BIR dated October 4, 2004, stating that the current zonal value of the said property is P2,000.00 per square meter. Please be informed that the Secretary of Justice, pursuant to law, renders opinion or gives legal advice only upon request of national government functionaries such as heads of departments, bureaus and offices of equivalent rank and then only on questions of law arising in the performance of their respective powers and duties. Accordingly, he has in practice and precedent consistently declined to render opinion or give legal advice upon request of other public officers and employees and private individuals or entities. 3 ESCDHA Also, the Secretary of Justice has always adhered to the policy that subordinate officials instead of seeking the advice of this department may on matters confronting them in the exercise of their official duties, as a matter of official courtesy and sound administrative practice, consult their chief or head of Office, who may competently resolve the issue without seeking assistance from another office. 4 Moreover, the resolution of the issue raised would inevitably require us to pass upon the subject Department Order No. 54-97 of the Bureau of Internal Revenue, which, unfortunately, is an agency beyond the revisory authority of this Department. Pursuant to settled practice and precedents, the Secretary of Justice does not render opinion or express any comments on questions involving the interpretation and/or application of administrative rules and regulations of other departments/offices over which he exercises neither supervisory nor revisory authority, unless requested by the issuing agencies/departments by reason of their familiarity with the intent and purposes of the issuance and the extent of the application thereof. 5 Furthermore, the resolution of the issue raised would necessarily affect the substantive rights of the Sarabias, upon whom the opinion of the Secretary of Justice, which is merely advisory, has no binding effect, and who may, in all likelihood, contest such opinion in court if it turns out to be adverse to their interests. Inasmuch as the matter may be the subject of judicial controversy in the future, it is neither advisable nor proper for this Department to comment thereon. 6 Nonetheless, for your information and guidance only, we would like to state some relevant observation. The provisions of R.A. No. 8974, insofar as pertinent, provide, to wit: Section 5. Standards for the Assessment of the Value of the Land Subject of Expropriation Proceedings or Negotiated Sale. In order to facilitate the determination of just compensation, the court may consider, among other well-established factors, the following relevant standards: (a) The classification and use for which the property is suited; (b) The developmental costs for improving the land; (c) The value declared by the owners; (d) The current selling price of similar lands in the vicinity; (e) The reasonable disturbance compensation for the removal and/or demolition of certain improvement on the land and for the value of improvements thereon; CDaSAE (f) This size, shape or location, tax declaration and zonal valuation of the land; (g) The price of the land as manifested in the ocular findings, oral as well as documentary evidence presented; and (h) Such facts and events as to enable the affected property owners to have sufficient funds to acquire similarly-situated lands of approximate areas as those required from them by the government, and thereby rehabilitate themselves as early as possible. Section 6. Guidelines for Negotiated Sale. Should the implementing agency and the owner of the property agree on a negotiated sale for the acquisition of right-of-way, site or location for any national government infrastructure project, the standards prescribed under Section 5 hereof shall be used to determine the fair market value of the property, subject to review and approval by the head of the agency or department concerned (Emphasis supplied). As a general rule, the use of the word "shall" in a statute implies that the statute is mandatory. It means "ought to", "must" and when used in a statute or regulation, expresses what is mandatory. In common parlance and in its ordinary signification, the term "shall" is a word of command, and one which has or which must be given a compulsory meaning, and it is generally imperative or mandatory. It has invariable significance to impose a duty which may be enforced, particularly if the public is in favor of this meaning or when addressed to public officials, or where public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears. 7 Significantly, a cursory reading of the values reflected in the schedule of zonal values embodied in Department Order No. 54-97 reveals that the current relevant zonal valuation of the subject property is P2,000.00 per square meter and not P600.00 per square meter. aCTcDS Very truly yours, (SGD.) RAUL M. GONZALEZ Secretary Footnotes 1. Implementation of the Revised Zonal Values of Real Properties in the Municipalities of Taguig and Pateros under Revenue District Office No. 44-Taguig/Pateros, Revenue Region No. 7-Quezon City for Internal Tax Purposes. 2. An Act to Facilitate the Acquisition of Right-of-Way, Site or Location for National Government Infrastructure Projects and for Other Purposes, dated November 7, 2000. 3. Secretary of Justice Opinion Nos. 5 & 9, s. 2007; No. 15, s. 2005. 4. Ibid. , No. 6, s. 1988. 5. Id. , No. 88, s. 1998; No. 74, s. 1989. CAIaHS 6. Id. , Nos. 53, 36, 12, 8 and 3, s. 1999. 7. Ruben E. Agpalo, Statutory Construction, 4th Edition, 1998, pp. 333-334.