DOJ Opinion No. 154, s. 1980

DOJ OPINION NO. 154 , s. 1980 October 1980 The President Azure Mining Corporation 5th Floor Philcomcen Bldg. Ortigas Avenue, Pasig Metro Manila Sir : This refers to your appeal from the resolution of the City Fiscal of Tangub City upholding the validity of certain tax enactments of said city (Ordinances Nos. 32-A & 32-B, s. 1978) imposing wharfage and storage dues on cargoes found within the premises of the Silanga wharf which is owned and maintained by the government of said city. Please be advised that this Ministry can not, as it is not authorized to, pass upon your appeal in view of the discussion hereinbelow. You state, as basis of your appeal, that the Sangguniang Panglunsod of Tangub City is not authorized under the Local Tax Code to impose the wharfage and storage dues in question because (1) said wharfage and storage fees were imposed on "on a daily basis"; (2) the machineries and equipment of your company which are the subject of the impositions in question were deposited along the shoulder of the national highway, and not within the premises of the Silanga Wharf; and (3) there is no storehouse or bodega constructed by the government of Tangub City in said wharf. The reviewing authority of the Minister of Justice over opinions rendered by the provincial or city fiscal on tax ordinances of local governments is circumscribed in Section 47 of the Local Tax Code (P.D. No. 231, as amended) which reads: "SEC. 47. Questions on the legality of 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 shall render an opinion on the matter 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." (Emphasis supplied.) Upon the other hand, the second paragraph of Section 44 of the same Code provides: "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; or when the ordinance is discriminatory in nature on the conduct of business or calling or in restraint of trade." (Emphasis supplied.) As may be seen from an examination of the foregoing provisions, the present case falls within the revisory authority of the Minister of Finance, as defined in Section 44, supra , and, therefore, is not within the authority of the Minister of Justice under section 47, likewise supra . Your petition for review is grounded on a claim which falls within the scope of the revisory authority of the Minister of Finance, taken in the light of the proviso that the tax ordinances in issue are "not among those that the particular local government may impose in the exercise of its power" under the Tax Code. Moreover, your appeal raises questions of fact which we are not in a petition to ascertain, and which questions of fact should be left to the determination of the local official who has taken original cognizance over the present controversy. LexLib Wherefore, for lack of authority to entertain your appeal (See Ops., Secretary of Justice, No. 88, s. 1974 & No. 11, s. 1979), we hereby dismiss the same. Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice