DOJ Opinion No. 069, s. 1980

DOJ OPINION NO. 069 , s. 1980 5th Indorsement May 12, 1980 Respectfully returned to Atty. Mamerto B. Asis, Roxas City, thru the Provincial Treasurer, Province of Capiz, Roxas City, the within papers relative to his appeal taken from the Opinion of the Provincial Fiscal of Capiz upholding the legality of the amusement tax of P0.05 per admission to theaters and cinematographs imposed under Municipal Tax Ordinance No. 1, series of 1973, of the Municipal Council of President Roxas, Capiz. Subject to the extended discussion set forth hereunder, we have to decline to pass upon the present appeal because it is not one upon which the Minister of Justice may exercise his appellate authority with respect to opinions of fiscals on the legality of local tax ordinances pursuant to section 47 of the Local Tax Code. Atty. Asis objects to the imposition of subject amusement tax on the following grounds: firstly, the subject ordinance does not apply to his movie house because it refers only to those "with a sitting capacity of 500 to 999 persons" and his movie house is permanent and not "itinerant" and has a total sitting capacity of 496 persons only; secondly, the province of Capiz is already imposing a percentage tax on movie houses pursuant to section 22 of the Local Tax Code (which Mr. Asis is already paying) and therefore the imposition of subject tax would result in "double taxation as well as excessive imposition of taxes, . . . at the same time contrary to . . . Sec. 22 of the Tax Code"; and thirdly, the imposition of subject tax is contrary to Section 19 of the Local Tax Code which forbids the municipality from imposing tax on business for which fixed taxes are already provided in said Code and said imposition will therefore "turn out" to be "excessive". (Letters of Atty, Asis to the Municipal Mayor of President Roxas dated March 19, 1974 on the first two grounds, and dated August 17, 1977, on the last ground.) LexLib The appellate authority of the Minister of Justice over opinions of fiscals on tax ordinances is circumscribed in Section 47 of the Local Tax code which reads insofar as is pertinent: "SEC. 47. Question on the legality of a 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 ordinance, or to the City Fiscal, in the case of tax ordinances of the city and barrio within the city, . . . The opinion of the Provincial Fiscal or City Fiscal, as the case may be, shall be appealable to the Secretary of Justice . . .". (Emphasis supplied.) It is clear from the above-quoted provision that in order that the Minister of Justice may review on appeal the opinion of a provincial or city fiscal on a question or issue raised against the legality of a tax ordinance or a portion thereof, the ground/s upon which the objection is based should be other than those mentioned in Section 44 of the same Code, enumerating the following as the grounds upon which the Minister of Finance may review and suspend the effectivity of a tax ordinance: that " the tax or fee therein levied or imposed is unjust, excessive , oppressive, confiscatory or is not among those that the particular local government may imposed in the exercise of its power in accordance with this Code ; when the tax ordinance is, in whole or in part, contrary to a declared national policy; when the ordinance is discriminatory in nature on the conduct of business or calling or in restraint of trade." (Emphasis supplied.) Atty. Asis' objection to subject tax is that the municipality is not empowered to impose subject amusement tax as this is prohibited by sections 19 and 22 of the Local Tax Code and that its imposition results in excessive taxation. The issues thus raised by Atty. Asis fall squarely within the purview of two of the grounds mentioned in Section 44 of the Local Tax Code, supra , (see underscored phrases), upon which the Minister of Finance may exercise his revisory authority over local tax ordinance. Upon the foregoing, we find that the present appeal does not raise any issue which would place the same within the revisory authority of the Minister of Justice pursuant to Section 47, supra . Accordingly, we hereby decline to pass upon said appeal. LexLib We may add that the opinion of the Acting Minister of Finance resolving the issues raised in this appeal which issues, as above-shown, fall within the revisory authority of the Minister of Finance pursuant to Section 44, supra , should put the said questions at rest. (SGD.) RICARDO C. PUNO Minister of Justice