DOJ Opinion No. 061, s. 1991

DOJ OPINION NO. 061 , s. 1991 April 11, 1991 Commissioner Jose U. Ong Bureau of Internal Revenue Quezon City Sir : This has reference to your query as to the legal feasibility of the Bureau of Internal Revenue ("BIR") acquiring the fifth floor of the Atrium of Makati Building ("Atrium") from the Asset Privatization Trust ("APT") through as offsetting arrangement involving the latter's tax liabilities. You state that on July 30, 1985, then President Ferdinand Marcos approved BIR's request to acquire on a no-cash-out- payment basis an office space at Atrium for P53.50 million from PNB; that the mode of payment agreed upon was through an offsetting of taxes payable by PNB to BIR; that although on November 29, 1985, funding for the aforesaid acquisition appeared to have been completed, the implementation was delayed due to PNB's failure to submit a list of tax liabilities which could be applied to the values of the office space in question; and that on June 24, 1986, however, BIR informed PNB of its occupancy of the subject office space. LexLib You state further that after the EDSA Revolution, the Atrium was transferred by PNB to the National Government, through the APT; that BIR and APT, as successor-in-interest of PNB, are willing to go through with the offsetting arrangement as originally contemplated but on December 4, 1989, however, the Office of the Executive Secretary issued a ruling "that such offsetting arrangement is tantamount to disbursing funds without an appropriation which is in violation of the Constitution". You now request for "further guidance" from this Office since it is your view that the above described offsetting scheme cans still be implemented for the reasons that the acquisition of the Atrium property was duly approved by former President Marcos who then exercised both legislative and executive powers, that the said arrangement was approved by the PNB Board, and that the contract has already been perfected and both parties may, therefore, demand specific performance form each other. This Department is constrained, much to its regret, to refrain from expressing its views on the matter in the light of the information that the Executive Secretary has already ruled against the validity of the subject offsetting agreemen Show t. Any opinion herein would inevitably involve an examination of the aforesaid ruling. Pursuant to established precedent, the Secretary of Justice does not pass upon the official acts of the Office of the President or examine its rulings, unless requested by said Office (Secretary of Justice Opns. Nos. 293 and 328, s. 1955; No. 166, s. 1960; No. 40, s. 1971; No. 152, s. 1987 and Opn. dated October 20, 1989). Being an integral part of the executive department, this Office is bound by the decisions of the Office of the Chief Executive. (SGD.) FRANKLIN M. DRILON Secretary