Mr. F. B. Reyes

November 13, 1995 Mr. F. B. Reyes R-219 Bank of P.I. Bldg. Plaza Cervantes, Binondo, Manila S i r : This refers to your letter dated October 20, 1995 requesting opinion on whether proxies executed under the following circumstances are valid: 1. undated; prcd 2. without documentary stamp tax; 3. un-notarized special power of attorney which are used as proxy; 4. absence of date stamped received by the corporate secretary, notwithstanding there is a deadline within which to file the proxy. Section 47(4) of the Corporation Code provides that private corporations may provide in their by-laws for " the form for proxies of stockholders and members and the manner of voting them ." Therefore, the by-laws of the corporation would be controlling insofar as execution of proxies is concerned. However, in the absence of a provision in the by-laws, proxies should be perceived in relation to its compliance with the following provision of the Corporation Code: "SECTION 58. Proxies . Stockholders and members may vote in person or by proxy in all meetings of stockholders or members. Proxies shall be in writing, signed by the stockholder or member and filed before the scheduled meeting with the corporate secretary. Unless otherwise provided in the proxy, it shall be valid only for the meeting for which it is intended. No proxy shall be valid and effective for a period longer than five (5) years at any time" (Emphasis supplied) Accordingly, for as long as the proxy is executed in accordance with the above-required formalities, the corporation is duty bound to honor the same, even if it is undated ,unless there is a provision in the by-laws to the contrary. Where a corporation receives an undated proxy, the postmark or, if not mailed, its actual presentation shall be considered. (SEC Opinion dated October 28, 1991 addressed to Mr. Norberto R. Capistrano citing SEC Opinion dated November 13, 1972 addressed to Neil Reyes and Associates ) Regarding the second situation, the Commission on several instances, had opined that documentary stamps should, as a rule, be affixed on proxies of corporations. Failure to affix one, however, does not affect the validity of the proxy. The only adverse effect of such failure is that the same cannot be recorded as a public document and cannot be admitted or used as evidence in court until the required documentary stamp is affixed and cancelled. ( SEC Opinions dated March 25, 1968 and July 1, 1969 addressed to Mr. Jose G. Gelano of the Manila Stock Exchange and Private School Teachers' Association of the Phil.,Inc.,respectively ) LexLib The above opinion finds support in the case of Jose Antonio Gabucan vs. Hon. Judge Luis D. Manta (GR No. L-51546, Jan. 28, 1980) wherein the Supreme Court, on the matter of failure to affix the required documentary stamps on taxable documents, ruled: "...that the documentary stamp may be affixed at the time the taxable document is presented in evidence (Del Castillo vs. Madrilea, G.R. No. 24788, December 17, 1926 49 Phil. 749).If the promissory note does not bear a documentary stamp, the court should have allowed plaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs. Martinez, G.R. No. 1913, September 29, 1905, 5 Phil. 67, 71. Note the holding in Azarraga vs. Rodriguez, G.R. No. L-3833, January 18, 1908, 9 Phil. 637 that the lack of the documentary stamp on a document does not invalidate such document .See Cia. General de Tabacos vs. Jeanjaquet, G.R. No. 4603, December 5, 1908, 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar, G.R. No. 5693, August 4, 1910, 16 Phil. 403, 405-6)" (Emphasis supplied)" Anent the third situation, ordinarily, in the absence of a by-law provision to the contrary, no particular form is required in the execution of proxies. It is enough that the proxy conveys in writing the intent to empower the holder to act for and on behalf of the person represented. Section 58 of the Corporation Code merely requires that "proxies shall be in writing, signed by the stockholder or member and filed before scheduled meeting with the corporate secretary." Accordingly, unless expressly required in the by-laws, a written proxy or authority, even if not notarized, will suffice for as long as it empowers the person to whom it is given to act as agent for and on behalf of the person executing the same. ( SEC Opinion dated Aug. 11, 1972 addressed to Benget Ventures, Inc. ) Relative to the last situation, the Commission had previously opined that if the by-laws provide for a cut-off date for the submission of proxy, the same should be strictly followed. However, if the by-laws, is silent on the matter, the corporation cannot fix a deadline for their submission (SEC Opinion dated July 3, 1990 addressed to Mr. Jose G. Cervantes citing SEC Opinion dated Nov. 13, 1972 addressed to Neil Reyes and Associates ) Accordingly, in the absence of a provision in the by-laws fixing a deadline, the corporate secretary is duty bound to honor a duly executed proxy submitted any time before the scheduled meeting. Section 58 of the Corporation Code, earlier cited, expressly allows proxies to be filed any time before the scheduled meeting. Finally, the Commission, on several occasions, has opined that there is a presumption of regularity in the execution of proxies. Hence, as a rule, they should be accepted if they have the appearance of prima facie authenticity in the absence of a timely and valid challenge. prcd Very truly yours, (SGD.) FE ELOISA C. GLORIA Associate Commissioner