DOJ Opinion No. 172, s. 1988

DOJ OPINION NO. 172 , s. 1988 August 23, 1988 MEMORANDUM FOR: The Cabinet Undersecretary This is with reference to your request for "opinion on the effectivity and validity of P.D. No. 2027." prLL Letter of Instructions No. 1416 directed the "suspension of payment of all taxes, duties, fees, imports and other charges, whether direct or indirect, due and payable by the copper mining companies in distress to the national and Local Governments", subject to certain conditions. Presidential Decree No. 2027, in turn, provided that "the accumulated taxes, duties, fees, imports and other charges of copper mining companies which have been suspended pursuant to LOI No. 1416, may be waived" by the President upon certification by Ministry of Trade and Industry that a copper mining company is eligible for such waiver. Subsequently, Executive Order No. 93, withdrew "all tax and duty incentives granted to government and private entities" save, inter alia , "those enjoyed by the copper mining industry pursuant to the provisions of Letter of Instructions No. 1416." It is noted, at the outset, that there should be no dispute about the validity and effectivity of P.D. No. 2027. Said RD was issued by former President Marcos on February 4, 1986, pursuant to his lawmaking authority under the 1973 Constitution and became effective fifteen days after completion of its publication in the Official Gazette (see Art. 2, New Civil Code; Taada v. Tuvera, 146 SCRA 446). Thus, the only issue to be resolved herein is whether or not P.D. No. 2027 is still subsisting in the light of the issuance of E.O. No. 93. I am inclined to believe that P.D. No. 2027 has been repealed by E.O. No. 93. Section 1 of the cited EO, in providing for the withdrawal of all tax and duty incentives granted to government and private entities enumerates certain exclusions from its coverage, but P.D. 2027 is not among them. It is axiomatic in law that what is not included is deemed excluded. The lawmaking authority is presumed to have known all existing laws on the subject at the time of the enactment of E.O. 93 and the fact that LOI No. 1416 was specifically cited among the exceptions whereas P.D. 2027 was not, is clearly indicative of an intention to include the former, but to exclude the latter, among the excepted cases. Stated otherwise, the legislator merely wanted to suspend the collection of taxes from distressed copper mining companies, but not to forego collection of such taxes. True, P.D. 2027 has not been expressly mentioned in the EO's repealing clause and that repeals by implication are not favored (Villegas v. Subido, 41 SCRA 190). But it is equally settled that where there is a plain and irreconcilable inconsistency between the two laws involved, the later expression of the legislative will should be given effect (Garcia Valdez v. Tuazon, 40 Phil. 943) and that where the intent to repeal is manifest, a special law should be deemed to have been repealed by a subsequent law, although general in character (NPC vs. Arca, 25 SCRA 931). prcd There is no question about the inconsistency between PD 2027 and EO 93. The former allows the waiving of all taxes collectible from distressed copper mining companies, whereas the latter withdraws tax incentives to private entities. Moreover, the intent to include in the withdrawal the tax incentives conferred under P.D. 2027 is manifestly shown by the facts (a) that, as previously observed, said PD was not included among the exceptions mentioned in Section 1 of the E.O. and (b) that from the time of the PD's effectivity to the issuance of E.O. 93 on Dec. 17, 1986, the said PD was never implemented as shown by the failure of then Ministry of Trade and Industry to issue its implementing rules. Finally, it is fundamental principle that provisions of law granting exemptions from taxes are to be construed liberally in favor of the taxing authority and strictly against exemption from tax liability (La Carlota Sugar Central v. Jimenez, 2 SCRA 295). In sum, it is my opinion that, although PD No. 2027 was a valid and effective piece of legislation, it has been already repealed and/or superseded by E.O. No. 93. August 23, 1988 (SGD.) SEDFREY A. ORDOEZ Secretary of Justice