DOJ Opinion No. 049, s. 2000

DOJ OPINION NO. 049 , s. 2000 June 19, 2000 Hon. Bartolome S. Carale Undersecretary for Legal Affairs Department of Education, Culture and Sports DECS Complex, Meralco Avenue Pasig City Sir : This has reference to your Indorsement letter dated May 11, 2000 requesting this Department to render legal opinion on the following specific issues: 1. Is the additional compensation allowance granted to government officials and employees under Administrative Order No. 53 which took effect on May 17, 1993, subject to tax? 2. Which agency is responsible to refund excess tax withheld from salaries of DECS employees? DECS or BIR? The request, it appears, is raised in connection with the withholding of tax made by the Bureau of Internal Revenue (BIR) on the additional compensation allowance of teachers, DECS officials and other government employees beginning 1998 and 1999. From the attached letter of School Division Superintendent Ellenita T. Martinez dated April 7, 2000, it is gathered that Administrative Order No. 53 granted additional compensation allowance in the amount of P500.00 per month to public school teachers and uniformed personnel of the Philippine National Police, the Armed Forces of the Philippines and other personnel of the government. It is likewise stated in said letter that Section 4 of the Executive Order No. 212 which implements the grant of a ten percent (10%) increase over the basic monthly salary effective January 1, 2000 provides for the continuation of Personnel Economic Relief Allowance and the Additional Compensation authorized under Administrative Order No. 53 states "that such additional compensation shall be paid as allowance and not integrated into basic pay and therefore not subject to tax". Furthermore, the letter also stated that when Commissioner Liwayway Vinzons-Chato was asked as to whether the additional compensation granted to government officials and employees under Administrative Order No. 53 is subject to tax, she opined that withholding of tax shall be made only when such allowance is formally integrated into the basic pay of government personnel. Hence, this query. With regret, this Department has to decline rendition of the opinion sought for the following reasons: llcd First . It is noted that the former BIR Commissioner has already ruled on the matter. The Secretary of Justice has time and again desisted from passing upon issues which have already been the subject of official actions by other officials/offices over whose actuations he possesses no revisory authority (Sec. of Justice Op. No. 151 s. 1998). Second . The Department of Finance (DOF) which has jurisdiction over the enforcement and collection of taxes has as yet to express a ruling or opinion on the questions herein presented. This Office submits that the DOF should first be accorded the opportunity to consider the aforestated questions which involve matters within its policy sphere and jurisdiction. The time-honored policy stated above, is dictated not only by practical considerations but by a sincere respect for the expertise on, and familiarity with, the policies relating to the subject, accorded the rightful exercise of jurisdiction by a co-equal and coordinate government office (Ibid No. 1, 1983; No. 97, s. 1982; No. 123, s. 1980; and No. 149, s. 1976). prcd Very truly yours, (SGD.) ARTEMIO G. TUQUERO Acting Secretary