DOJ Opinion No. 162, s. 1989

DOJ OPINION NO. 162 , s. 1989 August 18, 1989 The Executive Director Educational Development Projects Implementing Task Force University of Life Complex Meralco, Avenue, Pasig Metro Manila Sir : This refers to your request for an opinion in support of your "position that the tax exemption privilege granted [to the Educational Development Projects Implementing Task Force ("EDPITAF")] under P.D. 6-A is not deemed abrogated by Executive Order No. 93". llcd It appears that Undersecretary of Finance Marcelo N. Fernando, in his capacity as Chairman of the Fiscal Incentives Review Board ("FIRB"), has denied exemption from payment of custom duties and/or taxes to certain importations by the EDPITAF or textbook papers, construction materials, equipment and other commodities which are funded by foreign grants or donations; that said denial is based on the reasoning that EDPITAF's tax-exempt privilege under P.D. 6-A has been withdrawn by E.O. No. 93, that your office sought the reconsideration of said ruling on the contention that "such importations, being the intended to support educational purposes are by constitutional mandate, basically, exempt from taxes and duties"; and that you are now seeking this Department's opinion on the matter which would support your stand thereon. Section 16 of Presidential Decree No. 6-A reads: "The loans credits or indebtedness incurred pursuant to this Decree, the payment of principal, interests and other charges thereon the earnings of the Fund created under Section 8, as well as the importation of articles, materials, equipment, machineries and supplies, including all building materials by the Department of Education and Culture or other offices, agencies or instrumentalities of the government and by private or chartered entities authorized by this Act shall be exempt from all taxes, duties, fees, imposts, other charges of restrictions, imposed by the Republic of the Philippines or any of its agencies or political subdivisions. . . ." On the other hand, Section 1 of Executive Order No. 93 provides: "Section 1. The provisions of any general or special law to the contrary notwithstanding, all tax and duty incentives granted to government and private entities are hereby withdrawn, except: a) Those covered by the non-impairment clause of the Constitution; b) those conferred by effective international agreements to which the Government of the Republic of the Philippines is a signatory: xxx xxx xxx c) those conferred under the four basic codes namely: (i) the Tariff and Customs Code, as amended; (ii) the National Internal Revenue Code as amended; (iii) the Local Tax Code, as amended; (iv) the Real Property Tax Code, as amended; (f) those approved by the President upon the recommendation of the Fiscal Incentives Review Board." We deeply regret that we are constrained to decline opinion on your request. prcd The accompanying papers disclose that the FIRB, the agency thru which the Department of Finance implements E.O. No. 93 (Sec. 4), has ruled that EDPITAF importations exempted from the payment of customs and taxes if financed under international agreements which stipulate such exemption, pursuant to the Tariff and Customs Code; otherwise, EDPITAF importations are not so exempt. Thus, in the light of your view that EDPITAF importations are tax-exempt in any case under the provisions of P.D. 6-A, abovequoted, and the Constitution, the opinion sought in this case would require a re-examination of the said ruling of the FIRB. By settled precedents and policy, however, the Secretary of Justice should refrain from undertaking such review inasmuch as his opinions, being advisory in nature, cannot prevail over the rulings of that agency tasked with implementing the law involved (Secretary of Justice Opns. No. 145, s. 1973; and Nos. 89 and 11, s. 1980) Moreover, since the FIRB is under the direct supervision of the Department of Finance, it presumed that the decision of this body is likewise the position of the Department proper on the matter. Again, the Secretary of Justice possesses no revisory authority over the official actuations of a co-equal and coordinate department of government (Id., Opns. No. 66, s. 1972; and Nos. 7 and 11, s. 1987). Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice