DOJ Opinion No. 128, s. 1992

DOJ OPINION NO. 128 , s. 1992 September 28, 1992 Ms. Ma. Cecilia G. Soriano Undersecretary Department of Finance Manila M a d a m : This refers to your request for opinion on "whether the Department of Finance, thru the Secretary, may legally accept a donation in the amount of Twenty-Nine Million Two Hundred Thousand (P29,200,000.00) pesos from a donor, a private entity/party/foundation . . . for the purpose of renovating the ground floor and some areas of the second (2nd ) floor of the Department's building." You pose the instant query on the assumption that the donor in the aforestated grant is a recipient/beneficiary of tax exemption privileges under the Tariff and Customs Code as regards its importations. Thus, you want to know whether based on that premise, the acceptance of the donation would contravene any existing law on the matter, particularly, Section 3(b) and (c) of Republic Act No. 3019, as amended (Anti-Graft and Corrupt Practices Act), which state: prcd "SEC. 3. Corrupt practices of public officers . In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law. (c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act." This Department has recently passed upon a similar issue involving a donation of computer equipment to the Professional Regulation Commission. In Opn. No. 66, s. 1992, it was held that the donation can be accepted by said Commission without violating the aforequoted provisions of the Anti-Graft Law because the direct beneficiary of the donation is the government agency concerned and not the public officer receiving the donation. The pertinent portion of said opinion reads: "The test which has been invariably applied to determine whether or not a violation of the Anti-Graft Law has been committed by a public officer is the existence or non-existence of a conflict between his private interest and his public duty (Secretary of Justice Opinion No. 49, s. 1989). The reason behind the Anti-Graft Act, i.e. that a public office should not be used by public officers for their personal gain or advantage, does not exist if the government or any of its agencies is the direct recipient and beneficiary of a gift, present, share, percentage or benefit (Opinion No. 115, s. 1984; and Opinion dated November 18, 1966). . . . the computer equipment will be donated to the PRC jointly by the Filipino Shipowners Association and the Filipino Association for Marine Employees for utilization in the Marine Officers Licensure Examinations to be conducted by the Board. Clearly, the beneficiary of the donation is a government agency and not any public officer. While the donation will have to be accepted by the authorized PRC official, the accepting PRC official will do so not in his personal and private capacity on behalf of the PRC. Thus no personal gain or advantage may be expected to accrue to the receiving PRC official concerned." We believe that the abovequoted ruling holds true with respect to the proposed donation in the instant case. For it is clear that the direct recipient and beneficiary of the donation is the Department of Finance. True, the act of receiving will done by the Secretary, but such act is merely in pursuance of the authority conferred upon him by law. It bears stress that departments, bureaus offices and agencies are authorized "to accept, donations, contributions, grants, bequests or gifts, in cash or in kind, from foreign governments, international and local agencies, private entities or individuals for purposes related to their functions" (Sec. 8, R.A. No. 7180). Such authority is normally exercised through the heads of said departments, bureaus, offices and agencies. Expressed otherwise, acceptance of the donation in this case will be done by the Secretary of Finance not in his personal or private capacity and therefore, he is not expected to gain anything therefrom in such capacity. The circumstance that the donor is a recipient of tax exemptions is of no moment. As stated in your letter dated August 17, 1992, the tax exemptions granted to the donor are limited to those covered by law or contained in international agreements and in the grant of such privileges either the Secretary of Finance exercises no discretion or the Bureau of Internal Revenue has the "exclusive prerogative" to do so. Thus, it cannot be said that the donation bears some relationship to a transaction which the Secretary of Finance has to intervene officially, but even assuming such intervention, the action of the Secretary relative to the transaction is virtually ministerial, hence, the element of personal gain or advantage as motivation for such action is clearly absent. Premises considered, it is our view that the Department of Finance may accept the donation in question without contravening the pertinent provisions of the Anti-Graft Law. LibLex Very truly yours, For the Secretary of Justice: (SGD.) RAMON J. LIWAG Undersecretary