DOJ Opinion No. 027, s. 1982

DOJ OPINION NO. 027 , s. 1982 February 22, 1982 Atty. Benjamin I. Fernandez Rm. 205 Hillcrest Condominium E. Rodriguez Sr. Avenue, Q.C. Sir : This is with reference to your appeal in behalf of Umali-Pajara Construction Company and Mr. Ruben L. Umali, filed pursuant to Section 47 of the Local Tax Code, from an "opinion" allegedly issued by the City Fiscal of Lucena City, dated November 23, 1981 relating to the legality and/or validity of Ordinance No. 1042 as amended by Ordinance No. 385, of said City. It appears that sometime in 1979 the Umali-Pajara Construction Company won in the public bidding for the construction of the Lucena-Pagbilao-Tayabas Water System (LUPATA); that consequently, on February 11, 1980, a contract was executed by and between LUPATA Water District and the Umali-Pajara Construction company for the construction of a water system in the area for and in consideration of the price stipulated in the bid; that during the pendency of the contract on April 9, 1980, City Ordinance No. 385 was passed and approved by the Sangguniang Panlungsod of Lucena City amending City Ordinance No. 1042, which allegedly increased by 400%, more or less, the tax rates and tax basis for excavation fees; that the City Treasurer of Lucena City filed with the Office of the City Fiscal of Lucena City a complaint against the Umali-Pajara Construction Company and Mr. Ruben L. Umali in his capacity as General Manager of said company for violation of subject City Ordinance; and that upon your request that the City Fiscal render an opinion on the legality of subject ordinance, the latter replied in a letter dated November 23, 1981, fully quoted hereunder, thus: "This is in reply to your letter dated November 14, 1981 therein reminding undersigned to a request "for an opinion . . . on the legality of the ordinance". Your request is addressed to undersigned for him to give an opinion on the legality of the ordinance under which your clients are presently indicted. "Undersigned finds said request absurd. The action of undersigned in giving due course to the complaint of the City Treasurer of Lucena against your clients for Violation of Lucena City Ordinance is by itself an indication of undersigned's belief that said ordinances are legal. Nevertheless undersigned proceeded to investigate the case with the usual presumptions that a person is innocent of a crime or wrong and that the law has been obeyed. Undersigned therefore expects an equally fair deal from you that you must also grant a semblance of legality to the whole proceeding. LibLex "Consequently, if you do not file any controverting affidavit within a reasonable time, the case will be considered submitted for resolution." We take it that the aforesaid letter is the "opinion" which is the subject of your appeal. The authority of the Minister of Justice to pass upon the legality of local tax ordinances enacted under the Local Tax Code is defined by Section 47 which reads: "Sec. 47. Question on the legality of 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, or to the City Fiscal, in the case of tax ordinances of the City and barrios within the city, whose opinion shall be rendered within a period of thirty days after receipt by him of the query or protest. The opinion of the Provincial or City Fiscal as the case may be, shall be appealable to the Secretary (Minister) of Justice who shall render an opinion on the matter within sixty days after receipt of the appeal. The decision of the Secretary (Minister) of Justice shall be final and executory unless, within thirty days upon receipt thereof, the aggrieved party contests the same in court of competent jurisdiction." (Emphasis supplied) The Minister's power under this section, it must be stressed, is appellate in nature and arises only when the provincial or city fiscal has rendered an opinion which is elevated to the former on appeal. In the present case the City Fiscal of Lucena City has not rendered a formal opinion on the legality of the tax ordinance in question. Upon examination of the aforequoted reply of the City Fiscal we are unable to construe it as one constituting an opinion of the city fiscal, which in the contemplation of Section 47 of the Local Tax Code, is appealable to the Minister of Justice. It is nothing more than a bare expression of the City Fiscal's belief in the legality of the subject city ordinance, with no factual and/or legal basis having been adduced to support such belief. It does not even contain any precise statement of the question/questions or define the issue/issues raised against the legality of the subject tax ordinance which may be a basis for a determination as to whether it is one falling within the revisory authority of the Minister of Justice as defined in section 47, supra . There being no opinion of the City Fiscal which has been brought to the Minister of Justice on appeal under and within the context of Section 47 of the Local Tax Code, we may not exercise, and we are constrained hereby to decline to exercise, the appellate authority granted to this Ministry under said section. Please by guided accordingly. Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice