DOJ Opinion No. 137, s. 1991

DOJ OPINION NO. 137 , s. 1991 September 19, 1991 Commissioner Jose U. Ong Bureau of Internal Revenue Quezon City Sir : This has reference to your request for opinion on whether the proposed sale, through the Asset Privatization Trust, of the Escolta BIR property consisting of a 1,255.00 square meter lot with an 8-storey building erected thereon would require congressional approval in the light of the Supreme Court ruling on the sale of the Roppongi property in Japan (Laurel vs. Garcia, 187 SCRA 797). You state that the subject property, covered by Transfer of Certificate of Title No. 157039 and Tax Declaration No. A-027-0913, was acquired from the Development Bank of the Philippines (although the Deed of Conditional Sale submitted shows that it was purchased by the Republic of the Philippines from the Central Bank of the Philippines); that until it was condemned due to severe damage caused by earthquake, the building served as the office for various units of the BIR; that the building is no longer needed and abandoned; and that the property is to be sold in an "as is" condition as per approval of the President dated October 2, 1987. Upon the premises, we regret to inform you that we cannot with propriety render the desired opinion considering that the President had already approved the propose sale of the property in question. The resolution by this Department of any issue relating thereto would inevitably constitute an exercise of revisory power over the official acts of the President which this Department does not have, and may not exercise, unless so requested by the Office of the President itself (Sec. of Justice Ops. No. 152, s. 1986; No. 134, s. 1985; No. 31, s. 1984). Needless to stress, the decision of the Office of the President is binding on all departments, bureaus and offices in the executive branch, including the Department of Justice ( Id ; No. 96, s. 1982; No. 227, s. 1960; etc.). Moreover, any opinion that we may render on the matter might pre-empt the action that the Office of the President might take under prevailing circumstances. Sound administrative practice and official courtesy dictate that the Office of the President be given the opportunity to review its own decision in the light of significant supervening events considering that the approval of the sale of the BIR property took place prior to the promulgation of the Supreme Court's decision in the Roppongi case, supra . Nonetheless, in order to put your query in the proper perspective, we may invite attention to the following provisions of the Civil Code: "ART. 419. Property is either of public dominion or of private ownership." "ART 420. The following things are property of public dominion : (1) Those intended for public use such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads and others of similar character; (2) Those which belong to the State , without being for public use, and are intended for some public service or for the development of the national wealth." (Emphasis supplied.) "ART. 421. All other property of the State, which is not of the character stated in the preceding article, is patrimonial property." ART. 422. Property of public dominion when no longer intended for public use or for public service, shall form part of the patrimonial property of the State ." (Emphasis supplied.) In the Laurel, vs. Garcia case, it was rules that the Roppongi property, having been intended for use of the Chancery of the Philippine Embassy, was correctly classified as property of public dominion and is, therefore, outside the commerce of man and cannot be alienated; that its non-use for thirteen (13) years did not automatically convert it into patrimonial property of the State absent a "formal declaration" from the government that the property is withdrawn from public service; and that assuming that the Roppongi property is no longer of public dominion, there must be a law authorizing its conveyance. prcd Very truly yours, (SGD.) SILVESTRE H. BELLO III Acting Secretary