POSITION PAPER OF THE BOOK DEVELOPMENT ASSOCIATION OF THE PHILIPPINES RE TAX AND DUTY FREE IMPORTATION OF BOOKS INTO

THE COUNTRY

INTRODUCTION

The Book Development Association of the Philippines, composed of various stakeholders such as publishers, authors, distributors, book sellers and others who are actively involved in pursuing the development of the Book Industry in the country, are one in vehemently opposing the issuance of Department Order 17-09 dated 24 March 2009 and issued by the Hon. Secretary of Finance, Mr. Margarito B. Teves, which itself was based on the Memorandum re Clarificatory Guidelines on Duty Free Importation of Books dated 10 March 2009 issued by the Hon. Undersecretary Estela V. Sales.

With all due respect, the said Department Order and the Memorandum are legally infirm and without any basis under the present state of the law affecting book importation.

DOF’S OWN MANDATE, VIOLATED

On its website, the Department of Finance (DOF) is described to have “the critical tasks of revenue generation, resource mobilization and fiscal management rest on the shoulder of the Department of Finance.” Admittedly then, the DOF must

always be ready with the funds to sustain the government machinery in providing the general populace with all its basic needs.

Undoubtedly, it is an unenviable mandate, considering the gargantuan fiscal problems facing the DOF. However, in its zeal to perform its duties and functions, the DOF sometimes loses track of its focus and implements questionable ideas that causes undue hardships to the very citizens for whom its fiscal and fiduciary duties primarily are directed and are also its ultimate beneficiaries. This is one instance of such lack of focus. This is all the more surprising too, considering that the very law directly affected, i.e. Republic Act No. 8047, was also authored by non other than the Hon. Secretary of the Department of Finance, who was then a lawmaker and part of the 9th Congress when said RA 8047 was enacted.

I. Republic Act No. 8047 (henceforth “RA 8047”), i.e. the Book Publishing Industry Development Act, which created the National Book Development Board (NBDB) is the latest law that directly governs the importation of books into the country. As the latest legislative enactment from our lawmakers covering the specific subject of book importation, it must, by necessity, take precedence over all others. Thus, all other laws which previously governed and affected the importation of books into the country were either directly or indirectly repealed or modified accordingly. One such affected law is Section 105 (s) of the TCCP, as amended. RA 8047 is entirely anathema to Section 105 (s) of the TCCP. The Florence Agreement, which was clearly taken into account during the enactment of RA 8047, does not affect the proper implementation of RA 8047

with regard to book importation. In fact, the goals of the Florence Agreement is strengthened by RA 8047.

1.1 We respectfully disagree that, outside of importation of books done by non-stock, non-profit educational institutions and those with special Charters, there are three (3) instances wherein duty-free importation of books may be allowed: under Sec. 105 (s) of the TCCP, under the Florence Agreement and under RA 8047. With all due respect, there has been a gross mis-appreciation of the said laws, and the Guidelines that were issued have no basis under the present state of the law affecting book importation.

It is clear as daylight that whenever books are imported into the country, (other than those governed by special Charter), the law that would now govern is Republic Act No. 8047. To say otherwise would be to disregard the clear import of the said law, which involves itself strictly with the development of the Book Publishing Industry as well as all its ramifications. One such ramification is the importation of “books” per se. And consequently, the definition of which (i.e. books) the law has not placed any limitations whatsoever in full deference to the rationale for the law’s enactment as well as in complete accord with the UNESCO Florence Agreement.

1.1.1 RA 8047, which originated in the Senate in 1992 (Senate Bill No. 252) and its counterpart bill in the House of Representatives (House Bill No. 12614) had a long an arduous journey in the deliberations between the various committees of both legislative chambers before it was submitted to the

Bicameral Committee which eventually came into law as RA 8047 in 1995. Perhaps it would serve the DOF well to put some effort to delve into the Legislative History of the said law before it comes out with pronouncements that adversely affect the proper implementation of the law. Especially so in this case when the Hon. Secretary of the Department of Finance, who at that time was a Member of the House, is also an acknowledged author of said law.

1.1.2 With all due respect, at present, the DOF does not have any authority to issue any prior approval for the importation of books, of whatever nature or type; and neither for their tax and duty free release by the Bureau of Customs (BOC). If such authority to approve is actually necessary, this authority properly rests with the present National Book Development Board (NBDB) and its Directorate. This was clearly the import of the lawmakers when they came out and enacted RA 8047: so that one law (other than those directly affecting educational institutions that are non-stock and non profit and those with their own Charters) would govern all aspects of the Book Industry. Too many laws being implemented merely gives opportunity for the commission of graft and corruption as well as tax evasion.

1.1.3 Admittedly, Section 105 (s) of the TCCP had already been amended by several subsequent enactments. It is thus untrue for the Memorandum of 10 March 2009 to state that no amendments have been made. And as stated in the questioned 10 March Memorandum, one later enactment in particular (i.e. PD 1464) even gave the Department of Education, Culture and Sports (DECS) the authority to issue

certifications to support the release of imported books held by the Bureau of Customs (BOC).

1.1.4 That change by itself removed any authority for the DOF to issue any sort of approval regarding the importation of books into the country. Section 105 (s), as amended, clearly provides that once the certifications were issued by the DECS, it simply became a MINISTERIAL duty on the part of the Bureau of Customs to allow the tax and duty-free entry into our country of the imported books. Otherwise stated, the BOC and/or its parent, the DOF had no authority to disallow the tax and duty–free entry of the imported books once the DECS certifications were already in place. The law did not give the BOC/DOF any right to PREVENT the tax and duty-free entry of the imported books once the DECS certification was submitted. For the DOF to now argue otherwise would be to arrogate unto itself legislative powers which it does not have.

1.1.5 Certainly, under the said previous law, the types of books covered were only those of an economic, technical, vocational, scientific, philosophical, historical or cultural nature. Thus, going by the legal maxim “Expressio Unius Est Exclusio Alterius” whereby the express mention of one thing means the exclusion of all the others, it necessarily dictates that those books that do not come under the types enumerated are not covered by the DECS certifications and thus comes under the general scope of the taxing powers of the DOF/BOC.

1.1.6 Nevertheless, even this authority of the DECS to issue certifications as well as all the related ramifications thereof was

subsequently removed in 1995 through the enactment by Congress of Republic Act No. 8047, entitled the Book Publishing Industry Development Act of 1995.

1.2 Notably, the Fiscal Incentives provision, i.e. Section 12 of RA 8047 specifically provides that “In the case of tax and dutyfree importation of books or raw materials to be used in book publishing, the Board and its duly authorized representatives shall strictly monitor the quality and volume of imported books and material as well as their distribution and the utilization of the said imported materials” (Italics ours). Necessarily therefore, if any sort of certification of the type that is to be presented to the Bureau of Customs (BOC) is required regarding the importation of books, it is the NBDB Board, to the exclusion of all other government agencies that has the authority under the applicable law to issue such certifications, if it all this becomes necessary.

1.3 Verily, the DECS’ authority in regards to the importation of books had been stripped by RA 8047 as early as 1995. Still, as part of the governing board of the NBDB, the DECS as well as the CHED is still part and parcel of the protocols involved in the importation of books into the country.

However, such is not the case with the DOF. Under the present state of the law affecting the importation of books, the DOF has not been given any authority at all to DISAPPROVE once the importation of books has been given a go signal, so to speak, by the NBDB. Therefore, it is abundantly clear that the DOF simply has no authority and in fact has nothing to do with

regard to the importation of books except to impose no taxes or duties on the same.

II. It is erroneous to conclude that the imported books should be used for book publishing, equating it to a raw material. This is an absurd misreading of the law. Once a book is released to the public, it is already deemed published. How then can a published book be used for book publishing? The DOF seems to equate “Book Printing” with “Book Publishing”. This is a major misapprehension which is quite far from the true intent of RA 8047 as envisioned by its authors.

2.1 It is worthwhile to note that even from the time Republic Act No. 8047 was still in its infant stages before the Senate (i.e SB No. 252) and the House of Representatives (HB No. 12614), it was fully understood by the lawmakers even then that the importation of books by themselves, as part of the activities related to the book publishing industry, was tax and duty-free. And by “books” the lawmakers meant ANY kind of book and of whatever nature, as long as it comes into the definition culled from the UNESCO backed Florence Agreement. And under the Florence Agreement, Annex A (i) simply points to “Printed Books” as the first class of “books” that is tax and duty exempt.

2.1.1 This matter regarding “tax and duty free book importation” was already a foregone conclusion, and even a cursory look at the deliberations done before both the House and the Senate would show that fact. The earliest recorded reference concerning the fact that book importation per se

(without specifying the type or nature of the book) is clearly understood to be tax and duty free is the Explanatory Note of Senate Bill No. 252 given by then Senator Angara in his sponsorship speech on 16 November 1992. It was clearly stated therein that “…..While imported books are tax and duty free, following the Florence Agreement on the Free Flow of Information, imported paper to be used in the production of the same books are heavily taxed. The country imports finished books tax-free….” Sen. Angara continued to say that “It is much better to import books than to print books in this country because imported books do not attract any duty or tax at all.”

2.2 On the other hand, Section 105 (s) of the TCCP refers to books and other publications that are of “Economic, technical, vocational, scientific, philosophical, historical, and cultural” and even religious nature. However, as clearly understood by the lawmakers at the time RA 8047 was enacted, the importation of books as an independent activity and as part of the paradigm of “Book Development” is by itself tax and dutyfree. In other words, it is separate and entirely distinct from importation of raw materials.

2.3 It is thus palpably wrong to conclude that the importation of books would be for the purpose of using these as some sort of raw material for “book publishing” purposes. This would be illogical considering that once a book is released to the general public, it is already considered published because the information contained therein is already made available to the public. Which is precisely the reason for being of the Florence Agreement, i.e. the Free Flow of Information, as taken into account in the enactment of RA 8047.

III. Verily, the word “books” as provided under RA 8047 refers to ANY and ALL types and kinds of books, not only to those that are for “economic, technical, vocational, scientific, philosophical, historical, and cultural books and/or publications” as the questioned Department Order No. 17-09 would like everyone to believe. This conclusion is amply supported by the Florence Agreement, of which our country has been a signatory since 1952, and which was taken into account when RA 8047 was being deliberated on until fully enacted into law.

3.1 It is unfortunate that the Hon. Secretary of Finance has taken a very myopic view of the definition of the word “book”. Unfortunate because it shows an apparent disregard of the workings and extent of RA 8047; as well as the UNESCO backed Florence Agreement, of which the Philippines has officially been recognized as a signatory since 30 August 1952. And as earlier intimated, this is all the more unfortunate because the Hon. Sec. Teves was also an author of RA 8047 and hence is presumed to intimately know the Congressional deliberations conducted prior to the enactment of that law.

3.2 With specific regard to the Florence Agreement and the Protocol of Nairobi (1976), despite the somewhat limited connotation of its title , it cannot be said enough that the main goal therefore was the Free Flow of Information among the signatory nations. Accordingly, that was one of the pillars of the Agreement and the subsequent Protocol.

3.2.1 More importantly, the Florence Agreement DID NOT put any limitation as to the TYPE or KIND of book that the contracting states undertook not to impose or apply customs duties or other import taxes. This is well illustrated by the fact that the types of books that are referred to under its Article 1 (a) simply refer to them as “Books, publications and documents, listed in Annex A to this Agreement.” And a quick look at said Annex A reveals that the “books” referred to therein are simply called “Printed Books” . The term “Printed books” does not have any limitations attached to it, thus the books covered therein need not be of a purely scientific, technical or cultural nature. It is Article 1 (b) of the Florence Agreement that specifically mentions “educational, scientific and cultural materials”, and that these are listed in Annexes B, C, D and E of the Agreement. That this is rightly so is quite understandable given the primary goal of Free Flow of Information espoused by the Florence Agreement. This goal would not be served well if the term “books” were considered of limited scope only.

3.3 Notably, and as correctly pointed out by the DOF Undersecretary in the Memorandum of 10 March 2009, RA 8047 referred to the Florence Agreement in coming up with its definition of “books” in Section 1 of said law. However, note that even our own lawmakers in Section 3 of RA 8047 saw it fit not to limit the definition of “books” into strictly scientific, technical, cultural, etc. This was merely reflective of their understanding of the all encompassing scope of the provisions of the Florence Agreement and its Annexes.

3.4 Had the lawmakers really intended to limit the tax and duty free importation of books to those specific subjects as provided

under Sec. 105 of the TCCP, they could have easily done so. Yet, it is clear as daylight that there was no limitation imposed. It is thus conclusive that Republic Act No. 8047, which specifically provides for an exclusion from the imposition of taxes and duties on “books” per se already covers ALL types of books, and not only those within the list provided under Sec. 105 (s) of TCCP. Thus, effectively, Section 12 of RA 8047, in conjunction with Sec. 19 thereof, repealed by implication Sec. 105 (s) of the TCCP in that the two provisions cannot stand on their own. The all encompassing scope of RA 8047 simply trumps the limited scope of Sec. 105 (s) of the TCCP.

IV. Unarguably, one of the primary duties of the NBDB is to require and accept the registration of entities engaged in book publishing and its related activities. Section 3 (g) of RA 8047 stated that book publishing is the process of choosing and making books…..” To someone who may not be well versed in the industry, the terms “book publishing” would apparently connote simply “printing” or “production”. However, publishing encompasses more than just simply printing and production. It is an activity intended to disseminate information to the public. The importation of a book, of whatever nature, is an activity intended to disseminate the information contained therein to the public.

4.1 As stated earlier, one vital activity in book development is book importation, which is a distinctly separate activity from the manufacture and printing of books (of which the importation of raw materials becomes relevant). To say that book importation per se is not part of our national book development program is to lose track of the actual legislative intent of the lawmakers at the time RA 8047 was enacted.

4.2 Admittedly, RA 8047 stated that the NBDB was tasked with the duty of coming up, within 120 days from enactment of the law, with the guidelines and also to prescribe rules and regulations specifically those concerning Sec. 6 re Registration of Entities with the NBDB; Sec. 10 re Public School and Textbook Publishing; and the aforesaid Sec. 12 re Incentives to Book Development. As also earlier stated, it is Section 12 of RA 8047 that provides fiscal and tax incentives, and these incentives include tax and duty free importation of books and their exclusion from the E-Vat. Another incentive is the tax and duty-free importation of raw materials to be used for book publishing.

4.3 Under Section 13 of RA 8047, the guidelines, rules and regulations pertaining to the Fiscal and Tax Incentives provision (i.e. Sec. 12) would be done in consultation with, among others, the Board of Investments, the Bureau of Customs “and other appropriate agencies from the government and private sectors….” Additionally, Congress would be given copies of the guidelines. Unquestionably, said guidelines were made in consultation with the government agencies concerned, or else these could not have been issued. Thus, it is quite surprising that the DOF belatedly raised this issue as to the proper agency concerned with book importation certifications, etc. Clearly, under the law, the agency that has cognizance is the NBDB.

4.3.1 Correspondingly, the NBDB, in coming out with the Implementing Rules and Regulations for RA 8047, was correct in directing that it shall liaise directly with the BOC, the agency

directly affected by the book and raw material importations, rather than with the DOF. The IRR simply was a reflection of the provisions of the law, Section 13 of RA 8047. The law itself stated that the implementing rules would be done in consultation with the appropriate agency, and that would refer to the BOC in cases of importation. To refer the matters to the DOF would just create more red tape and thus more opportunities for graft and corruption to occur, in addition to putting another level of complexity in the importation procedures.

V. True, that under the Florence Agreement, contracting states have the right to take measures to prohibit or limit the importation of the tax and duty free books. But the limitations pertain directly to national security, public order or public morals. Clearly, loss of revenue is not a valid ground to limit the importation of the matters stated under the Florence Agreement.

5.1 The Memorandum dated 10 March 2009 also rationalized that the Florence Agreement has given the contracting states, such as our country, the right to limit the duty free importation of books.

5.1.1 Admittedly, this is true. And in fact, the quoted provision has been reproduced in the Memorandum verbatim. However, even a cursory reading of the said provision of the Florence Agreement would make anyone conclude that the limitations contained therein refer only to matters which directly affect national security, public order or public morals. Thus,

limitations which are imposed due to a palpable or even apparent loss of government revenue occurring as a result of the tax and duty-free allowance of books into the country is not a valid ground for the imposition of limitations or prohibitions thereof. It would be quite a long stretch to think that revenue generation is directly related national security, public order or even public morals. If such were the case then almost all aspects of government service could be read into those categories. That would be ridiculous at the very least.

5.1.2 It is thus an egregious error to quote a provision and read something into it that blatantly goes against the plain reading of the provision. Especially so in this case when the provision quoted is glaringly clear and precise.

VI. We agree that it is correct that a State may make such modifications in its legislation as may be necessary to ensure the fulfillment of its obligations in international contracts or agreements. Thus, RA 8047 as presently enacted specifically supercedes the erroneous complexities created by Sec. 105 (s) of the TCCP.

6.1 Sec. 105 (s) of the TCCP concerns itself only with the importation of books that are of a specific nature, i.e. educational, scientific, economic, technical, religious, etc. Notably, RA 8047 was enacted subsequent to Sec. 105 (s) of the TCCP.

6.2 It is a fact that RA 8047 has not provided for any definition of the specific nature for the term “books”, except that it is a “printed, non periodical publication of at least forty eight (48) pages, exclusive of cover page, published in the country and made available to the public”.

6.2.1 This is contained in Section 3 (a) of RA 8047, which also stated that it is a definition adopted by the “United Nations Education Scientific and Cultural Organizations (UNESCO)….” Thus, there is a reference in RA 8047 to the Florence Agreement, which as earlier discussed above only had the words “Printed Books” in its Annex A (i). It is clear that under both the Florence Agreement and as reflected in RA 8047, there was no specific mention of the nature of the books, as to their scientific, educational, etc. nature.

CONCLUSION:

If revenue collection, efficiency and consistency are the avowed goals of the DOF, then there is all the more reason that only one agency that should govern the importation of books into the country. The same agency that has been tasked by law to uphold the goals of the National Book Development Act. This agency is the National Book Development Board. The NBDB as such shall be the one to issue certifications as to the importation of books of whatever nature and type. Hence, the importer need only secure the necessary papers from the NBDB in order to validly import the books into the country, without anymore stating the nature or type of the books being imported, or under which law it is being imported. Accordingly

also, the imported need not state the fact that the books are being imported for purpose of eventual sale, because RA 8047 encompasses all types and nature of books and does not discriminate as to the purpose of the importation. Neither does the importer have to state that fact the imported books will be used as raw materials for book publication, because this is quite absurd and illogical. Such are the ramifications of the enactment of RA 8047.