DOJ Opinion No. 073, s. 2002

DOJ OPINION NO. 073 , s. 2002 August 27, 2002 Secretary Simeon A. Datumanong Department of Public Works and Highways Manila Sir: Reference is made to your request for opinion on whether Transport Research Laboratory (TRL), a consultant engaged by the Department of Public Works and Highways (DPWH) for two projects, namely: (1) Pavement Investigation Research Program of the DPWH Sixth Road Project, funded by the Asian Development Bank, and (2) Three research and development projects under the Memorandum of Understanding between the Republic of the Philippines and the United Kingdom, is exempt from payment of taxes. It is stated that the contracts for the two projects provide for the exemption of TRL from the payment of taxes, but TRL paid taxes upon the advice of its accountants, subject to reimbursement by the DPWH. It is also stated that the DPWH has asked the Bureau of Internal Revenue (BIR) to exempt TRL from the payment of taxes and has sought the recovery of what has been paid. The Department of Foreign Affairs has also expressed the view that TRL is exempt from the payment of taxes. It is further stated that the BIR denied the request for reimbursement of the taxes paid by TRL, stressing that it is not a signatory to the contracts which are private agreements between the DPWH and TRL, and, therefore, not binding on it. In view of the above developments, opinion is now requested on the issue. With regret, this Department is unable to render the requested opinion. The resolution of the issue, arising from the BIR's denial of the request for reimbursement, pertains to the jurisdiction of the Secretary of Finance who exercises supervision and control over the BIR. 1 The Secretary of Justice has consistently desisted from expressing his views on matters which, by provision of law, fall within the authority of another office over which this Department possesses no revisory authority, unless his opinion is requested by such office. 2 This rule arises not only from practical considerations, but also out of due respect and deference for the competence and expertise of the office having primary jurisdiction to resolve the matter and for its familiarity with the policy repercussions of the question as well as from a logical recognition of the lawful exercise of an authority conferred by law. 3 Moreover, the issue affects the substantive and contractual rights of a private party, in this case, TRL. By settled policy and precedents, the Secretary of Justice does not render opinion on such kind of issue. 4 The opinion of the Secretary of Justice is merely advisory, and such opinion would not be binding upon such private party which, if adversely affected by such opinion, might 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 or those which may be the subject of litigation before the courts. 5 HAICTD Very truly yours, (SGD.) HERNANDO B. PEREZ Secretary Footnotes 1. Sec. 39. Secretary's Authority . (1) The Secretary shall have supervision and control over the bureaus, offices, and agencies under him, . . . (Chapter 8, Book IV, Administrative Code of 1987 [EO No. 292)) Supervision and control shall include "authority to . . . review, approve, reverse or modify acts and decisions of subordinate officials or units . . ." (Section 38(1), Chapter 7, Book IV of the Administrative Code of 1987). 2. Secretary of Justice Opinions No. 69, series of 2001; Nos. 5 and 60, series of 2000; No. 27, series of 1999; No. 135, series of 1998; and No. 19, series of 1996. 3. Secretary of Justice Opinions No. 7, series of 1996; No. 88, series of 1998; and No. 115, series of 1999. 4. Secretary of Justice opinions Nos. 27 and 44, series of 2001; Nos. 92 and 63, series of 2000; Nos. 53, 36, 12 and 8, series of 1999. 5. Secretary of Justice Opinions No. 32, series of 2001; Nos. 31 and 12, series of 2000; No. 99, series of 1999; and No. 91, series of 1987.