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27.BM - Subpoena Duces Tecum.02.28.08 PDF
27.BM - Subpoena Duces Tecum.02.28.08 PDF
The issuance of the subpoena duces tecum (SDT) facilitates the immediate investigation
and assessment of possible deficiency taxes that can be uncovered in the conduct of a
tax investigation. A taxpayer to whom a SDT is served is required to present the
documents particularly described in the subpoena. Should the taxpayer fail, refuse, or
neglect to comply with the commands of the SDT, he may be proceeded against either
by: (a) a criminal prosecution for violation of Section 5 in relation to Sections 14 and 266
of the 1997 Tax Code; or (b) indirect contempt under Section 3(f) Rule 71 of the Revised
Rules of Court (Revenue Memorandum Order 35-90). In this way, the tax investigation is
not jeopardized by the inaction of the unyielding taxpayer.
Fortunately, the taxpayer may curb the effects of his failure to obey the SDT by
subjecting his violation to compromise. However, once the complaint is filed in court, it
can no longer be subject to compromise (Revenue Regulations 30-02). The court shall
assume full control of the case until it is finally disposed of.
For its rather punitive consequence, can wary taxpayers be justified in refusing to obey
the SDT? Absolutely, when, for instance, the SDT is signed by an unauthorized officer.
Tax regulations identify the revenue officials who are authorized to issue the SDT,
namely, the commissioner of Internal Revenue (CIR), Deputy Commissioners and the
Assistant Commissioner of the Legal Service for the National Office; and the Director
and Assistant Director for the Regional Offices.
To further expedite tax investigations, the BIR recently issued Revenue Memorandum
Order 2-2008 extending the authority to issue the SDT to the following officials:
a. National Office
b. Regional Office
Chief of the Legal Division and the Revenue District Officer as may be
authorized by the Regional Director through a Regional Delegation Order
Besides the lack of authority of the issuing officer, the SDT may also be questioned
when it does not particularly describe the documents sought to be produced.
Compliance with such kinds of SDT may allow unscrupulous officers to engage in fishing
expeditions, a scenario which the purpose of the SDT did not envision.
The compulsory process of the SDT is an effective tool of tax administration. Through
this, revenue officers are given leverage in the conduct of tax investigations. However,
resort to this device is not at all necessary for taxpayers who, certain that their tax
obligations are paid correctly as they fall due, can confidently say, I have nothing to
hide!