DOJ Opinion No. 047, s. 2002

DOJ OPINION NO. 047 , s. 2002 July 9, 2002 Hon. Oscar G. Garin Congressman, 1st District, Iloilo House of Representatives Quezon City Sir : This has reference to your request for opinion relating to the imposition of amusement tax on resort establishments such as the Bantayan Beach Resort and Racso's Woodland Inland Resort and Mini Hotel in Guimbal, Iloilo by the Provincial Government of Iloilo. Specifically, you raise the following issues: "1. Are mini-hotels-resorts such as Racso's and Bantayan and museums like the "Exploratorium 2000", with their nature are liable to pay amusement tax? 2. Can the Provincial Treasurer delegate its power to assess and levy amusement tax to the Provincial Attorney? 3. Which should prevail, the 33% amusement tax rate as contained in Section 22 of Provincial Ordinance 98-29 or the 30% maximum rate as contained in Section 140 of the Local Government Code?" With regret, this Department is unable to render the requested opinion for the following reasons: First . We are constrained to refrain from rendering the opinion requested since its resolution would inevitably involve a determination of the correctness of the ruling or actuation of the Provincial Government of Iloilo. Under Section 5, Article X of the 1987 Constitution "Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees and charges shall accrue exclusively to the local government." By established precedents, this Department has consistently declined to pass upon rulings and/or actuations/actions of other government officers and officials over whom the Secretary of Justice exercises no supervisory authority and over whose actions he possesses no revisory authority (Sec. of Justice, Ops. No. 91, s. 1982; No. 19, s. 1981; No. 9, s. 1980; No. 99, s. 1978; No. 137, s. 1977; and No. 40, s. 1975). Second . The resolution of the issue raised would inevitably involve an interpretation and/or examination of the Local Government Code of 1991. The interpretation and application of the provisions of the Local Government Code of 1991, however, properly fall within the jurisdiction of the Oversight Committee which is mandated to issue the appropriate rules and regulations necessary for the efficient and effective implementation of the provisions of the said Code (Section 533, R.A. No. 7160) and the department of the Interior and Local Government (DILG), the lead agency designated by the President in the implementation of the said Code (Adm. Order No. 269, dated February 21, 1992). Pursuant to settled policy and precedents, the Secretary of Justice does not rule on issues which fall within the primary jurisdiction of another office or agency-in this case, the Oversight Committee and the DILG-over which rulings or actuations this Department exercises no revisory authority, unless the request comes from such office or agency (Secretary of Justice Op. Nos. 47 and 159, s. 1993). Third . The queries involve the substantive rights of private parties namely that of the owner of resort establishments, and since the opinion of the Secretary of Justice is merely advisory in nature, such opinion would not be binding upon said private parties who, if adversely affected by such opinion, may take issue therewith and contest it before the courts. As a matter of policy, therefore, the Secretary of Justice has consistently refrained from rendering opinion on questions which are justiciable in nature or those which may be the subject of litigation before the courts (Secretary of Justice Op. No. 91, s. 1957; Ops. No. 19 and 92, s. 1971; Op. No. 108, s. 1978 and Op. No. 46, s. 1981). cADTSH Very truly yours, (SGD.) HERNANDO B. PEREZ Secretary