Republic of the Philippines

DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
Davao City

BUREAU OF INTERNAL REVENUE NPS DOCKET NO: . XI-02-INV-23-E-3331

(BIR)
Rep: Charmie A. Amita

Complainant, FOR: Failure to Obey Summons (Sec. 266

of RA 8424)
-versus-

ROEL MARK PASAGAD CORCINO

Respondent

x----------------------------------------------x

COUNTER-AFFIDAVIT

I, ROEL MARK PASAGAD CORCINO, of legal age, Filipino, married and a

resident of Panabo City, with assistance of counsel, do hereby state under oath that:

1) I am the respondent of this case of NPS Docket No. XI-02-INV-23-E-3331; filed

against me by the herein Complaint the Bureau of Internal Revenue, through its
representative Charmie A. Amita (hereinafter referred to as Charmie) on the
charge of Failure to Obey Summons under Section 266 of Republic Act 8424;

2) The charge is based on my failure to answer the Second and Final Request for
Presentation of Records Before the Issuance of Subpoena Duces Tecum that
was sent to me and was received by my office Secretary, April
Pasagad (hereinafter referred to as April) last October 14, 2022 ;

3) A Letter of Authority (hereinafter referred to as LOA) for the tax year of 2020
arrived when we were settling our tax liabilities for the tax year of 2019;

4) On the advice of my Examiner for the year 2019, I tried to negotiate my tax
liabilities for that year and complete my documents for the year 2020 because I
was confused because I was still settling my tax liabilities for 2019 when I
received another LOA for 2020;

5) Pending the payment of my 2019 tax liabilities, I executed my ITR for the year
2020;

6) On June 1, 2023, I was shocked to have received a Subpoena from the Office of
the City Prosecutor of Davao City for Failure to Obey Summons;

7) Upon the checking the attachments of the Subpoena, I came across the Subpoena
Duces Tecum that was issued by the BIR and was received and signed by April
Ronna Pasagad (hereinafter referred to as April) last October 14, 2022. A copy of

1
 the Subpoena Duces Tecum and Affidavit of Proof of Service of Subpoena Duces
Tecum are hereto attached and marked as Annex "1-A" and Annex “1-B”;

8) The fact that I was not personally given a copy of the Subpoena Duces Tecum
was admitted by April in her Sworn Affidavit dated June 23, 2023. A copy of the
Sworn Affidavit is hereto attached and marked as Annex "2";

9) I confronted April on the matter because I could not remember having personally
received any notice from the BIR to present my books of record for inspection;

10) It was only recently that I came to know that April sent to me a copy of the
Subpoena Duces Tecum when I scrolled the messages in my Facebook
Messenger;

11) I was unable to scrutinize the same when she sent it to me because of the heavy
workload that we were attending in our business;

12) I, on my part, have never personally received the Subpoena Duces Tecum issued
by the BIR because If I was aware of the same, I would have readily complied
with the request;

13) Before receiving the Subpoena, I was constantly updating April about the status
of the second notice because I was fully aware of the consequences if I failed to
present my books of account before the BIR, the latter would press charges
against me;

14) Under Revenue Memorandum Order 8-2014 which amended Revenue

Memorandum Order 10-2013, personal service of the subpoena is first required
before resorting to a substituted service, to wit:

“The SDT shall be served through personal service by delivering personally a

copy of the SDT to the party at his registered or known address or wherever he
may be found. A known address shall mean a place other than the registered
address where business activities of the party are conducted or his place of
residence.”

15) The issuance of the Subpoena Duces Tecum was procedurally defective because
it was not delivered to me personally but to a mere office staff who does not know
the consequences of failing to comply with such purported document;

16) A substituted service of the Subpoena Duces Tecum can only be resorted to when
there is an impossibility of a personal service within a reasonable time;

17) In the case of Manotoc vs. Court of Appeals1, the Supreme Court has held that:

“The preferred mode of service of summons is personal service. To warrant the

substituted service of the summons and copy of the complaint, the serving officer
must first attempt to effect the same upon the defendant in person. Only after the
attempt at personal service has become impossible within a reasonable time may
the officer resort to substituted service.”

18) In Revenue Memorandum Circular No. 111-2016, the same reiterates that the
BIR must strictly observe the procedure for the issuance of a Subpoena Duces
Tecum, to wit:

“ xxx the procedures for the issuance and enforcement of SDTs, as prescribed
under Revenue Memorandum Order No. 10-2013, as amended by RMO No.8-

1
G.R. No. 130974, August 16, 2006.
2
 2014, must be strictly observed by all concerned to compel taxpayers to submit or
otherwise present the required bocks, records and documents.”

19) I was deprived of due process when I was not informed that a Subpoena Duces
Tecum was already issued against me;

20) In the case of Commissioner of Internal Revenue vs. Metro Star Superama
Inc.,2 the Supreme Court has held that:

“It is an elementary rule enshrined in the 1987 Constitution that no person shall
be deprived of property without due process of law. In balancing the scales
between the power of the State to tax and its inherent right to prosecute
perceived transgressors of the law on one side, and the constitutional rights of a
citizen to due process of law and the equal protection of the laws on the other,
the scales must tilt in favor of the individual, for a citizen’s right is amply
protected by the Bill of Rights under the Constitution. Thus, while "taxes are the
lifeblood of the government," the power to tax has its limits, in spite of all its
plenitude.”

21) In the case of Republic vs. Intermediate Appellate Court 3, the Supreme Court
has held that:

“In case of doubt, tax statutes are to be construed strictly against the
Government and liberally in favor of the taxpayer, for taxes, being burdens, are
not to be presumed beyond what the applicable statute (in this case P.D. 213)
expressly and clearly declares.”

22) The power to tax must be exercised with caution to minimize injury against the
proprietary rights of the taxpayer.

23) In the case of Roxas vs. Court of Tax Appeals4, the Supreme has held that:

“The power of taxation is sometimes called also the power to destroy. Therefore,
it should be exercised with caution to minimize injury to the proprietary rights
of a taxpayer. It must be exercised fairly, equally, and uniformly, lest the tax
collector kill the ‘hen that lays the golden egg.’ And in order to maintain the
general public’s trust and confidence in the Government, this power must be used
justly and not treacherously.”

24) On June 21, 2023, I received a Notice of Discrepancy (hereinafter referred to as

Notice) from the BIR that my tax deficiency, including the inspection of my
books of account, is scheduled to be inspected by Revenue District Officer, Eddie
Leo A. Galera II (hereinafter referred to as Leo) on June 29, 2023 because the
supposed designated Examiner, Charmie, was on leave. A copy of the Notice of
Discrepancy is hereto attached and marked as Annex "3";

25) It is also stated in the same Notice that, “You may submit at said discussion
whatever documentary evidence you may have to reconcile and refute the noted
discrepancies.”

26) I will present my books of account, that was the subject of the Subpoena Duces
Tecum, on the said date;

27) It is not my intention to evade my responsibility of submitting the pertinent

documents to be inspected by the BIR because it is my duty as a citizen to pay my
taxes due to the government;
2
637 SCRA 633, G.R. No. 185371 December 8, 2010.
3
196 SCRA 335, G.R. No. 69344 April 26, 1991.
4
23 SCRA 276, No. L-25043 April 26, 1968.
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 28) It was only due to the negligence of my staff in failing to inform me despite my
constant queries to her of the status of the second notice coming from the BIR;

29) Considering the foregoing, I respectfully submit that the subject case deserves to
be dismissed for lack of prima facie case and reasonable certainty of
conviction that the crime of Failure to Obey Summons under Section 266 of
Republic Act 8424 has been committed.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that the instant

criminal complaint be DISMISSED for lack of merit.

Further, the respondent respectfully prays for such and other reliefs as may be
deemed just and equitable in the premises.

IN WITNESS WHEREOF, I have hereunto set my hand this ______________

in the City of Davao, Philippines.

ROEL MARK PASAGAD CORCINO

Affiant

SUBSCRIBED AND SWORN to before me this ____________ in Davao City,

Philippines and I further certify that I have personally examined the affiant and I am
satisfied that he has read and personally understood the contents of his foregoing
“Counter - Affidavit.”

Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2023.