DOJ Opinion No. 153, s. 1989

DOJ OPINION NO. 153 , s. 1989 August 8, 1989 Mr. Olegario B. Caday Sogod, Southern Leyte Sir : This has reference to your appeal from the decision of the Provincial Prosecutor dismissing for lack of jurisdiction your "protest" against several provisions of Municipal Tax Ordinance No. 8-88 of Sogod, Southern Leyte. Quoted hereunder are the pertinent provisions of the Local Tax Code (P.D. No. 231). "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 treasurer or city treasurer, as the case may be, takes no action as authorized in this section, the tax ordinance shall remain in force. prcd "The Secretary of Finance, the provincial treasurer or the city 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; when the ordinance is discriminatory in nature on the conduct of business or calling or in restraint of trade ." (Emphasis supplied). 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 . . ." "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 ordinance , 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 receipts of the appeal. The decision of the Secretary of Justice shall be final and executory, unless, within thirty days upon receipts thereof, the aggrieved party contests the same in a court of competent jurisdiction." (Emphasis supplied). We have carefully examined and thoroughly evaluated all the allegations contained in your letters-protest, dated April 17, and 21, 1989 together with your letter of May 3, 1989, and we note that the grounds you invoke against the tax ordinance in question are the same grounds provided for in Section 44 of the Local Tax Code, viz: the tax or fee levied or imposed is (a) unjust (b) excessive , (c) oppressive , (d) confiscatory , or (e) not among those that the particular local government may impose in the exercise of its power in accordance with the Local Tax Code , and which under Section 45 of the same Code, supra , are grounds for filing a "formal protest against a tax ordinance" with the Secretary of Finance (and not with the Secretary of Justice) who is thereby vested with jurisdiction to decide such formal protest (Secretary of Justice Op. No. 15, s. 1975). The Secretary of Justice may pass upon questions or issues raised against the legality of tax ordinances on appeal from the Provincial or City Fiscal's (now Provincial/City Prosecutor) opinion, only on grounds other than those mentioned in Section 44 abovecited (Secretary of Justice Op. No. 57, s. 1977). You may lodge your protest against the collection of taxes or fees prescribed under the tax ordinance in question with the Secretary of Finance who is also charged with the implementation of the Local Tax Code (Section 65). prcd As requested, we are returning herewith the following documents/papers: 1. Letter-Protest dated April 17, 1989 2. Letter-Protest dated April 21, 1989 3. 1st Indorsement of the Provincial Prosecutor dated April 24, 1989 4. Request for Reconsideration dated May 3, 1989 5. 2nd Indorsement of the Provincial Prosecutor dated May 9, 1989; and 6. Letter of Appeal to the Secretary of Justice dated May 16, 1989 Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice