TAXREV Letter of Authority

Nanox Philippines, Inc. v Commissioner of Internal GR No. CTA EB No. 1629

Revenue Date: April 15, 2019
Ponente: Uy, J.
Nanox Philippines, Inc., petitioner. Commissioner of Internal Revenue, respondent
SUMMARY
This is a MOTION FOR RECONSIDERATION Re: Decision promulgated on October 11, 2018 which granted the Petition
for Review, reversing and setting aside both the November 24, 2016 Decision and March 2, 2017 Resolution of the
Court in Division, and in effect cancelling and setting aside the Formal Letter of Demand (FLD) against petitioner for
being void due to lack of valid LOA. The Court affirmed the finding that Revenue Officer (RO) Rey K. Lugtu, the revenue
officer who conducted the examination of petitioner's books of accounts and other accounting records for fiscal year
ending March 31, 2007, and who recommended the issuance of the PAN against petitioner, was not authorized to
conduct the said examination, through an LOA. Since the revenue officers did not have authority to examine the
taxpayer in the first place, the assessment issued by respondent is inescapably void.
Despite the foregoing majority view of the members of this Court, the instant Motion for Reconsideration must be
granted. Since the affirmative votes of five (5) members of the Court En Banc are necessary to reverse a Decision of a
Division thereof and the affirmative votes garnered in the present case were only four (4).
DOCTRINE
The High Court has specifically interpreted Section 6 (A) of the NIRC of 1997 in this wise: (1) that unless authorized by
respondent himself or his duly authorized representative, through an LOA, an examination of the taxpayer cannot
ordinarily undertaken; and (2) that unless undertaken by the CIR himself or his duly authorized representatives, other
tax agents may not validly conduct any of these kinds of examinations without prior authority. On the basis of the
foregoing interpretation, the Supreme Court applied the same by ruling that since the revenue officers did not have
authority to examine the taxpayer in the first place, the assessment issued by respondent is inescapably void.
Nature of the case: Motion for Reconsideration
FACTS (lifted from the October 2018 Decision since this is an Amended Decision)
On October 22, 2007, petitioner received Letter of Authority (LOA) No. 00003651 dated October 4, 2007 from
respondent authorizing Revenue Officer (RO) Erlinda M. De Leon and Group Supervisor Lope N. Tubera to examine its
books of accounts and other accounting records for the FY ended March 31, 2007. Petitioner received a Notice of
Informal Conference from the Revenue District Office (ROO) No. 21 of the SIR on June 2, 2009, inviting petitioner or its
duly authorized representative to an informal conference to discuss the preliminary results of the tax audit. In reply
thereto, petitioner submitted various supporting documents to support its position relative to the cancellation of the
findings contained in the attached preliminary report of investigation.

On November 9, 2009, respondent issued a letter informing petitioner that he will reiterate the assessment since the
documents submitted by petitioner were found to be insufficient. Respondent likewise requested petitioner to attend
an informal conference within fifteen (15) days upon receipt of the said letter.

On February 11, 2010, respondent issued a Preliminary Assessment Notice (PAN). The PAN assessed petitioner for
deficiency value-added tax (VAT) on sales of scrap, expanded withholding tax (EWT), final withholding tax (FWT) on
royalty payments, and fringe benefits tax (FBT) in the total amount of 21,564,547.66. Thereafter, on April 22, 2010,
petitioner received from respondent the Formal Letter of Demand (FLO), covering Assessment Notice (FAN) No. 021-
120700001710346 dated March 24, 2010, which reiterated the same findings and amount of assessment with updated
interest contained in the PAN. On May 17, 2010, petitioner received a Tax Verification Notice (TVN) informing
petitioner that RO James Suarez has been authorized to verify the supporting documents and/or pertinent records
relative to petitioner's internal revenue taxes for the taxable period April 1, 2006 to March 31, 2007, and also
requesting the submission of certain documents stated therein.

Respondent then issued the Final Decision on Disputed Assessment (FDDA). It stated that the FLO dated March 24, 2010
has become final in view of petitioner's failure to submit the necessary supporting documents to refute the findings of
the previous examiner. On October 1, 2010, petitioner then elevated the matter to the Office of the Commissioner by
filing a Request for Reconsideration with said Office. While the matter was pending before the Office of the
Commissioner, the Collection Division issued the Preliminary Collection Letter requesting payment of the assessed
deficiency taxes for FY 2007. In response thereto, petitioner filed a reply requesting for the suspension of the
proceedings for the enforcement of the payment of the disputed assessment pending respondent's resolution of
petitioner's Request for Reconsideration. Thereafter, respondent issued a Final Notice Before Seizure (FNBS) on
November 9, 2010.
On February 16, 2011, petitioner filed a letter, requesting that the FNBS be held in abeyance and that no collection
through summary remedies of Warrant of Distraint and Levy and/or Garnishment be enforced until respondent
Commissioner has finally resolved the request for reconsideration. However, on January 26, 2012, petitioner received a
copy of the Final Decision issued by respondent, denying its Request for Reconsideration and reiterating the arguments,
as well as, the details of the assessment stated in the FDDA.
Consequently, petitioner filed a Petition for Review before the Court in Division. The Court in Division dismissed
petitioner's Petition for Review in CTA Case No. 8433 for lack of jurisdiction. Petitioner filed its Motion for
Reconsideration which the Court in Division denied in a Resolution dated March 2, 2017 for lack of merit.
ISSUE/S
I. W/N the CTA can resolve an issue which was not raised by the parties? Yes
II. Did the assailed decision declare that the LOA are invalid? No
III. W/N a new LOA is required to authorize a subsequent revenue officer who will continue the examination
of petitioner's books? Yes
IV. Are the tax assessments valid? No
RATIO
I. Under Section 1, Rule 14 of A.M. No. 05-11-07-CTA, or the Revised Rules of the Court of Tax Appeals, the CTA is
not bound by the issues specifically raised by the parties but may also rule upon related issues necessary to achieve an
orderly disposition of the case. The text of the provision reads: DETACa
SECTION 1. Rendition of judgment. — x x x.
In deciding the case, the Court may not limit itself to the issues stipulated by the parties but may also rule upon related
issues necessary to achieve an orderly disposition of the case.

The Supreme Court did not only affirm this Court's authority to rule upon related issues necessary to achieve an orderly
disposition of the case; but also specifically states that this Court may consider the question on the scope of authority
of revenue officers who were named in the LOA, which impliedly covers the issue of whether a revenue officer is
authorized through an LOA in the first place. Thus, this Court is authorized to resolve the said issue, as in this case.

Furthermore, while it is a general rule that appeals can only raise questions of law or fact that (a) were raised in the
court below, and (b) are within the issues framed by the parties therein, the same admits of certain exceptions,
namely, (i) in the interest of justice, matters of record having some bearing on the issue submitted which the parties
failed to raise or the lower court ignore, and (ii) questions involving matters of public importance. The question of
whether the revenue officers who conducted the investigation of petitioner's books of accounts and other accounting
records for fiscal year ending March 31, 2007 were authorized to do so is a matter of record. The BIR Records
submitted by respondent on May 24, 2012 vis-à-vis the evidence presented by the parties in the proceedings below can
easily be examined to answer the said question. Moreover, such question has some bearing on the issue raised by
petitioner in the proceedings a quo of whether the subject Formal Letter of Demand/Final Assessment Notice
(FLD/FAN) was validly issued. Furthermore, the same question is a matter of public importance. Taxpayers must always
be assured that revenue officers who conduct examination of their books of accounts and other accounting records for
any given period are properly authorized by an LOA, pursuant to Section 6 (A) of the National Internal Revenue Code
(NIRC) of 1997.

II. A careful reading of the ruling in the assailed Decision would reveal that the Court En Banc did not state that
LOA No. 00003651 dated October 4, 2007 automatically became invalid because the revenue officers named therein
was reassigned or transferred. In fact, such supposed invalidity of the said LOA was not even considered or mentioned
in the disquisitions of the Court En Banc. To be clear, the ruling in the assailed Decision October 11, 2018 is to the
effect that Revenue Officer (RO) Rey K. Lugtu, the revenue officer who conducted the examination of petitioner's
books of accounts and other accounting records for fiscal year ending March 31, 2007, and who recommended the
issuance of the PAN against petitioner, was not authorized to conduct the said examination, through an LOA
.Correspondingly, on the basis of the jurisprudential pronouncement in the Medicard case, We concluded that the
subject tax assessments, which came about as a result of the said RO's examination, are void.

III. Section 17 of the NIRC of 1997 indeed grants respondent the power to assign or re-assign internal revenue
officers and employees, subject to certain limitations, one of which is that internal revenue officers assigned to
perform assessment or collection functions shall not remain in the same assignment for more than three (3) years.
However, nothing in the said provision states that the required LOA can be dispensed with; neither does it provide an
exemption to the legal requirement that a revenue officer must be authorized, through an LOA, to perform his/her
assessment or collection functions. It must be noted that there can be instances where a revenue officer, previously
authorized through an LOA, may not be able to complete the examination of the concerned taxpayer, by reason of
retirement, reassignment, illness, or death, of the said revenue officer. But what is not acceptable to this Court is
respondent's proposition that because of such instances, there can already be an excuse not to issue an LOA.
However, the said proposition finds no basis in law and jurisprudence. For sure, despite the presence of any of the
above-enumerated instances, respondent or his/her duly authorized representative can still legally issue another LOA
in favor of the revenue officers who are intended to replace the one(s) previously authorized. In other words, there is
no legal impediment to the issuance of a subsequent LOA authorizing another revenue officer, or new set of revenue
officers, to continue the examination of books of accounts and other accounting records of the concerned taxpayer.

IV. "An LOA is the authority given to the appropriate revenue officer assigned to perform assessment functions. It
empowers or enables said revenue officer to examine the books of account and other accounting records of a
taxpayer for the purpose of collecting the correct amount of tax. An LOA is premised on the fact that the examination
of a taxpayer who has already filed his tax returns is a power that statutorily belongs only to the CIR himself or his
duly authorized representatives. Section 6 of the NIRC clearly provides as follows:

SEC. 6. Power of the Commissioner to Make Assessments and Prescribe Additional Requirements for Tax
Administration and Enforcement. —
(A) Examination of Return and Determination of Tax Due. — After a return has been filed as required under the
provisions of this Code, the Commissioner or his duly authorized representative may authorize the examination
of any taxpayer and the assessment of the correct amount of tax: Provided, however, That failure to file a return shall
not prevent the Commissioner from authorizing the examination of any taxpayer.

A more careful reading of the foregoing would reveal that the High Court has specifically interpreted Section 6 (A) of
the NIRC of 1997 in this wise: (1) that unless authorized by respondent himself or his duly authorized representative,
through an LOA, an examination of the taxpayer cannot ordinarily undertaken; and (2) that unless undertaken by the
CIR himself or his duly authorized representatives, other tax agents may not validly conduct any of these kinds of
examinations without prior authority. On the basis of the foregoing interpretation, the Supreme Court applied the
same by ruling that since the revenue officers did not have authority to examine the taxpayer in the first place, the
assessment issued by respondent is inescapably void.

To reiterate, in this case, the revenue officer, who conducted the examination of petitioner's books of accounts and
other accounting records for fiscal year ending March 31, 2007, and who recommended the issuance of the PAN
against petitioner, was not authorized to conduct the said examination, through an LOA. Thus, considering that the
applicable provision is Section 6 (A) of the NIRC of 1997 — the provision of law which deals with the issuance of an LOA,
and the Medicard case expresses the interpretation by the Supreme Court of the said provision, the same ruling in the
said Medicard case is therefore applicable, and must perforce be applied, to the present case.

Despite the foregoing majority view of the members of this Court, the instant Motion for Reconsideration must be
granted. The affirmative votes of five (5) members of the Court En Banc are necessary to reverse a Decision of a
Division thereof. Hence, considering that in the present case, the affirmative votes garnered for the reversal of the
Court in Division's Decision dated November 24, 2016 and Resolution dated March 2, 2017 in CTA Case No. 8433, were
attained only through four (4) members of this Court En Banc, the instant Petition for Review in CTA EB 1629 must be
dismissed, while the instant Motion for Reconsideration must be granted. Correspondingly, the assailed Court in
Division's Decision in CTA Case No. 8433 must be deemed affirmed, in accordance with Section 2 of RA No. 1125, as last
amended by RA No. 9503, and Section 3, Rule 2 of the RRCTA.
RULING
WHEREFORE, in light of the foregoing considerations, the instant Motion for Reconsideration is GRANTED. Accordingly,
the Court En Banc's Decision dated November 24, 2018 is hereby MODIFIED to read as follows:
"WHEREFORE, in light of the foregoing considerations, the instant Petition for Review is DISMISSED. Accordingly, the
Decision dated November 24, 2016 and the Resolution dated March 2, 2017, both rendered by the Court in Division in
CTA Case No. 8433 are AFFIRMED.
SO ORDERED." cDHAES
SO ORDERED.
Korina