DOJ Opinion No. 129, s. 1986

DOJ OPINION NO. 129 , s. 1986 2nd Indorsement November 11, 1986 Respectfully returned to the Minister of Agriculture and Food, Quezon City, (Attn.: Asst. Minister Dante Q. Barbosa) the within request for opinion on the legality of certain provisions of the Revised Revenue Code, s. 1985 of the Municipality of Bindoy, Negros Oriental, particularly Article E, Section 4 E.O. 1 imposing a service fee of P5.00/head for inspection of animals/fowls transported or driven out of the municipality. LexLib Quoted hereunder are the pertinent provisions of the Local Tax Code (P.D. 231, as amended) which are relevant to the query: "SEC. 44. Review and suspension of tax ordinance . Within fifteen days after its approval, a certified true copy of a tax ordinance shall be furnished; the Secretary of Finance by the provincial board or city council; the provincial treasurer, by the municipal or barrio council; or the city treasurer by the barrio council in the city's jurisdiction. If, within one hundred and twenty days after receipt of a copy thereof, the Secretary of Finance or the provincial or city treasurer, as the case may be, takes no action as authorized in this section, the tax ordinance shall remain in force. The Secretary of Finance, the provincial treasurer, as the case may be, shall review and have the authority to suspend the effectivity of any tax ordinance within one hundred and twenty days after receipt of a copy thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust, excessive, oppressive, confiscatory, or not among those that the particular local government may impose in the exercise of its power in accordance with this Code; or when the tax ordinance is, in whole or in part, contrary to declared national economic policy; or when the ordinance is discriminatory in nature on the conduct of business or calling or in restraint of trade." xxx xxx xxx "SEC. 45. Formal protest against a tax ordinance. A formal protest based on grounds provided in the preceding section may be filed with the Secretary of Finance within one hundred and twenty days after the approval of the tax ordinance of any local government, or after the date of the initial implementation thereof, and the Secretary shall have sixty days, after receipt of the protest, to decide the same." xxx xxx xxx "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 ordinances, or to the City Fiscal, in the case of tax ordinances of the city and barrios within the city, whose opinion shall be rendered within a period of thirty days after receipt by him of the query or protest. The opinion of the Provincial or City Fiscal, as the case may be, shall be appealable to the Secretary of Justice who shall render an opinion on the matter within sixty days after receipt of the appeal. The decision of the Secretary of Justice shall be final and executory unless, within thirty days upon receipt thereof, the aggrieved party contests the same in a court of competent jurisdiction." It is clear from the abovequoted Section 47 that the authority which the Minister of Justice possesses regarding questions on the legality of tax ordinances pursuant to the Local Government Code is to review on appeal the opinion of the Provincial or City fiscal, as the case may be, on any question raised against such legality on grounds other than those mentioned in Section 44. I note that aside from the fact that the Provincial Fiscal has not rendered his opinion on the question herein raised, the ordinance is not questioned on grounds other than those mentioned in Section 44. Accordingly, the present query is not one upon which the Minister of Justice may act in the exercise of his revisory authority under Section 47 of the Local Tax Code. (Ops. Nos. 36, 77, 88, 80, 102 & 182, s. 1974; No. 69, s. 1980). I further note that the ordinance was enacted in 1985 and the 120 day period within which the Minister of Finance may review and suspend the effectivity of the tax ordinance, as well as the filing of a formal protest with the Minister of Finance, has already expired. Pursuant to the aforementioned Section 44, if the minister of Finance does not take any action within the 120 days as authorized under the section, the ordinance remains in force. The Minister of Justice, as a rule does not pass upon the validity of duly enacted ordinances, the matter being properly a matter for the courts to resolve. prcd However, we are providing you herewith for your information a copy of Opinion No. 181, s. 1984 which may be pertinent to your query. Please be guided accordingly. (SGD.) NEPTALI A. GONZALES Minister of Justice