DOJ Opinion No. 109, s. 1990

DOJ OPINION NO. 109 , s. 1990 June 13, 1990 Mr. Olegario B. Caday Sogod, Southern Leyte Sir : This has reference to your letter dated April 27, 1990 appealing the "opinion" of the 3rd Assistant Provincial Prosecutor, as approved by the Provincial Prosecutor of Southern Leyte, arising from your request for opinion on the following queries: "1. Whether Resolution No. 2-s. 1990 legally revived Municipal Tax Ordinance No. 60-84. 2. Whether Resolution No. 2-s. 1990 legally amended or suspended Municipal Tax Ordinance No. 8-88 after it was implemented for calendar year 1989. 3. Whether a member of the Sangguniang Bayan including its Presiding Officer who did not register his official objection to the implementation of Resolution No. 2-s. 1990 be liable to the provision of Section 48 of the Local Tax Code together with the officers and employee of the office of the Municipal Treasurer." LexLib You state that Municipal Tax Ordinance (MTO) No. 60-84 dated December 26, 1984 was repealed by Municipal Tax Ordinance No. 8-88 dated December 31, 1988, that MTO No. 8-88 was implemented from January 1, 1989 to December 31, 1989 despite its suspension by the Provincial Treasurer of Southern Leyte; that the Sangguniang Bayan of Sogod, Southern Leyte, finding Municipal Tax Ordinance No. 8-88 suspended, passed Resolution No. 2-s. 1990 on January 10, 1990, adopting Municipal Tax Ordinance No. 60-84 as basis for taxable year 1990; that a protest was filed with the Secretary of Finance against Municipal Tax Ordinance No. 8-88 on June 6, 1990 and Municipal Tax Ordinance No. 60-84 on the ground that the taxes being levied or imposed is excessive, oppressive and that said taxes or fees are outside the power of the municipality to impose or levy; and that the Provincial Prosecutor stated in his opinion on your queries that Resolution No. 2-s. 1990 is valid there being no prohibition in the Local Tax Code for a municipality from reverting to a municipal tax ordinance which it has abandoned; and that it is the exercise of the Secretary of Finance of his authority to review that suspended Municipal Tax Ordinance No. 8-88 as suggested by the Provincial Treasurer of Southern Leyte and not Resolution No. 2-s. 1990 which suspended the said Municipal Tax Ordinance. We regret that we cannot act on your appeal as the issues raised in your queries with the Provincial Prosecutor of Southern Leyte, are all fundamentally premised on the validity of Municipal Tax Ordinances No. 60-84 and No. 8-88. As you state, said ordinance are all under protest with the Secretary of Finance pursuant to Section 45 of the Local Tax Code, for being excessive, oppressive and not among those that local government may impose in the exercise of its powers in accordance with the Local Tax Code. It is noted that these are the same ground which you cited in your previous appeal to this Department from an opinion of the Provincial Prosecutor of Southern Leyte, wherein this Department in Opinion No. 153, s. 1989, ruled that the same is not within the jurisdiction of the same Provincial Prosecutor, neither is it within the jurisdiction of the Department of Justice to resolve, but that of the Department of Finance which is vested with jurisdiction pursuant to Section 45 of the Local Tax Code. Furthermore, it bears emphasis that the Secretary of Justice's power under Section 47 of the Local Tax Code, arises only when the Provincial/City Prosecutor has rendered a formal opinion on the tax ordinance in question (Sec. of Justice Op. No. 27, s. 1982). An examination of the herein "opinion" of the Provincial Prosecutor shows that it refers to the validity of Resolution No. 2-s. 1990 of the municipality of Sogod, Southern Leyte. We are unable therefore to construe it as one constituting an opinion of the Provincial Prosecutor within the context of Section 47 of the Local Tax Code. We wish to reiterate that pursuant to said section the only instance when the Secretary of Justice may review on appeal an opinion of the Provincial Prosecutor is when the issues raised involve the legality of any tax ordinance or portion thereof on grounds other than those mentioned in Section 44 of the Local Tax Code. Since the grounds you cited are those falling under the jurisdiction of the Secretary of Finance, and in fact a protest against the tax ordinances in question had been filed and now pending review and resolution with the aforesaid Office, we cannot exercise the appellate authority granted to this Department under the Local Tax Code. Very truly yours, (SGD.) FRANKLIN M. DRILON Secretary