Rules on Motion for Reconsideration Filed under Executive Order No. 226, Otherwise Known as the Omnibus Investments Code of 1987, as Amended

June 22, 2016

BOI MEMORANDUM CIRCULAR NO. 2016-002

 

WHEREAS, Article 7 of Executive Order (E.O.) No. 226, otherwise known as the Omnibus Investments Code of 1987, as amended, provides for the powers and duties of the Board, including the power to promulgate rules and regulations to implement the provisions of E.O. No. 226;

WHEREAS, E.O. No. 226 also provides for various remedies from the action or decision of the BOI, depending on the nature of the controversy;

WHEREAS, Article 7 (4) of E.O. No. 226 provides that the Board "after due hearing, decide controversies concerning the implementation of the relevant books of this Code that may arise between registered enterprises or investors therein and government agencies, within thirty (30) days after the controversy has been submitted for decision: Provided, That the investor or the registered enterprise may appeal the decision of the Board within thirty (30) days from receipt thereof to the President";

WHEREAS, Article 7 (8) of E.O. No. 226 provides that the Board "after due notice, cancel the registration or suspend the enjoyment of incentives benefits of any registered enterprise and/or require refund of incentives enjoyed by such enterprise including interests and monetary penalties, for (a) failure to maintain the qualifications required by this Code for registration with the Board or (b) for violation of any provisions of this Code, of the rules and regulations issued under this Code, of the terms and conditions of registration, or of laws for the protection of labor or of the consuming public";

WHEREAS, Article 36 of E.O. No. 226 provides that "any order or decision of the Board shall be final and executory after thirty (30) days from its promulgation. Within the said period of thirty (30) days, said order or decision may be appealed to the Office of the President. Where an appeal has been filed, said order or decision shall be final and executory ninety (90) days after the perfection of the appeal, unless reversed";

WHEREAS, Article 82 of E.O. No. 226 provides for judicial relief, such that, "all orders or decisions of the Board in cases involving the provisions of this Code shall immediately be executory. No appeal from the order or decision of the Board by the party adversely affected shall stay such order or decision: Provided, That all appeals shall be filed directly with the Supreme Court within thirty (30) days from receipt of the order or decision";

WHEREAS, Rule 43 [Appeals from the Court of Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals] of the 1997 Rules of Civil Procedure, as amended, modified Article 82 of EO 226, wherein it provides that appeals from judgments or final orders from the Board of Investments may be taken to the Court of Appeals within fifteen (15) days from notice of the award, judgment, final order or resolution.

NOW THEREFORE, to afford due process to BOI-registered enterprises and in order to effectively carry out the intent and purposes of E.O. 226, the Board, in its meeting of 15 June 2016, by virtue of Resolution No. 15-02, Series of 2016, with a quorum duly preset, adopted the following rules on Motion for Reconsideration:

SECTION 1. Motion for Reconsideration — Period of Filing. — A verified Motion for Reconsideration of the decision of the Board may be filed within thirty (30) days from recent thereof. The motion is verified by an affidavit that the affiant has read the motion and that the allegations therein are true and correct of his personal knowledge or based on authentic records. Only one (1) motion for reconsideration shall be allowed.

The motion shall be printed or typewritten, font size 13 with 1.5 spacing on legal size bond paper. Further, the envelope containing the motion shall be properly labeled as "MOTION FOR RECONSIDERATION".

SECTION 2. Grounds — The Motion for Reconsideration shall be based on any of the following:

a. Fraud, accident or mistake which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights;

b. New evidence has been discovered which materially affects the decision rendered;

c. The decision is not supported by the evidence on record;

d. Errors of law or irregularities have been committed prejudicial to the interest of the Party; or

e. The decision is contrary to law.

Motions filed outside the above-stated grounds shall result to the immediate dismissal thereof.

SECTION 3. Form of the Motion. — The form of the verified motion shall be composed of the following:

a. Caption setting forth the name and address of the Board of Investments,

b. The name of the Parties:

i. BOI Registered Enterprise, indicating its Registered Project Activity and Certificate of Registration No., as the Petitioner/Movant; and

ii. the Concerned Service — Board of Investments as the Respondent;

c. The docket number; and

d. The title of the pleading, which shall be "MOTION FOR RECONSIDERATION".

SECTION 4. Contents. — The Motion for Reconsideration shall contain the following:

a. Specific material dates showing that it is filed within the period prescribed under Section 1 hereof; and

b. Concise statement of the facts and issues and the grounds relied upon for the motion;

c. Clear and concise presentation of the arguments in support of each issue;

d. Duly certified true copies of documentary evidence; and

e. Relief sought.

SECTION 5. When Deemed Filed. — A motion for reconsideration can be filed either by registered mail or by personal delivery, however, the filing will be deemed perfected upon filing of the Motion for Reconsideration and payment of the necessary filing fee. The motion shall be filed in three (3) copies with the Records Division of the BOI Central Office or BOI-Extension Office.

SECTION 6. Filing with BOI-Extension Offices. — The motion may be filed with BOI-Extension Offices located in Cagayan de Oro, Cebu, and Davao.

For this purpose, the concerned BOI-Extension Office shall issue the Order of Payment and is authorized to collect the filing fee. Thereafter, proof of payment and the motion by the Petitioner/Movant will be immediately transmitted to the BOI-Central Office (Records Division) for docketing.

SECTION 7. Docket and Assignment of Number. — Upon the filing of motion, the Records Division shall docket the same and assign to it a number. The numbering of initial pleadings or petitions must be consecutive according to the date they are received, and prefixed as follows:

BOI Case No. (Year) — (Number)

SECTION 8. Payment of Filing Fee. — Once the motion is duly docketed by the Records Division, the same shall be forwarded to the Arbitration, Mediation, and Litigation Division for the preparation of the Order of Payment, which shall be presented to the Cashier for payment.

SECTION 9. Effect of Filing. — The filing of a motion for reconsideration within the prescribed period of thirty (30) days shall stay the execution of the decision sought to be reconsidered.

SECTION 10. Appeal. — Any decision, order or resolution of the Board may be filed directly with the Office of the President or the Court of Appeals, as the case may be, within the prescribed period provided by law and the Rules of Court, respectively.

SECTION 11. Application of the Rules of Court. — The Rules of Court shall apply in a suppletory character whenever practicable.

SECTION 12. Repealing Clause. — All circulars, memoranda and other issuances of the BOI or parts thereof which are inconsistent with any provisions of these rules are hereby deemed repealed or modified accordingly.

SECTION 13. Separability Clause. — If any provision or part of this Circular is held invalid or unconstitutional, the provisions not otherwise affected shall remain valid and subsisting.

SECTION 14. Effectivity. — This Circular shall take effect fifteen (15) days following its publication in a newspaper of general circulation and filing of three (3) copies hereof with the Office of the National Administrative Register (ONAR) University of the Philippines (UP) Law Center, Diliman, Quezon City pursuant to Presidential Memorandum Circular No. 11 dated 09 October 1992.

June 22, 2016, Makati City, Philippines.

BY AUTHORITY OF THE BOARD

(SGD.) DR. CEFERINO S. RODOLFOUndersecretary and BOI Managing Head

Published in The Philippine Star on June 29, 2016.