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Retroactive application of Family Code
Married before the effectivity of the Family Code, and fear you cannot nullify your marriage based on the grounds provided therein? Fret not, the Supreme Court has reiterated in a recent case that the Family Code, which took effect on 03 August 1988, shall be given retroactive effect unless vested or acquired rights under relevant laws will be prejudiced or impaired. According to Arthur Candelario v. Marlene Candelario and Office of the Solicitor General (G.R. No. 222068, 25 July 2023), psychological incapacity as a ground to nullify marriage under Article 36 of the Family Code can be applied to the marriage contracted on 11 June 1984 by the parties in this case. Article 256 of the Family Code explicitly provides that the law, including its provision on psychological incapacity, shall have retroactive effect. As such, the ruling of the lower court that the marriage cannot be nullified under Article 36 of the Family Code as the law only became effective after the parties’ marriage was set aside. The Supreme Court also stressed that Republic Act No. 8533 has amended Article 39 of the Family Code, which previously distinguished between marriages solemnized before and after its effectivity. Art. 39 now provides that the action or defense for the declaration of the nullity of marriage shall not prescribe, without distinction, whether the marriage was solemnized before or after the effectivity of the Family Code. A plain reading of the law even shows that nowhere in Art. 36 is it stated that the same may not be applied to marriages celebrated prior to the effectivity of the Family Code. It is basic in statutory construction that where the law is not ambiguous, the Court may not introduce exceptions or conditions where none is provided. Likewise, deliberations of the Family Code Revision Committee show that the same issue was considered, and the retroactive application of Art. 36 was voted upon. Jurisprudence is replete with the same pronouncements, such as Chi Ming Tsoi v. Court of Appeals (1997), Republic v. Molina (1997), Republic v. Enclean (2013), and Republic v. De Gracia (2014). The Court cited the Comment of the Office of the Solicitor General in this case — that any ruling to the contrary discriminates against married couples for no reason other than having the misfortune of getting married before the enactment of the Family Code. All persons can be afflicted with a psychological disorder resulting in incapacity to perform marital obligations. As such, the issue must not focus on when the parties invoking the nullification contracted the marriage, but on whether the requirements of psychological incapacity under the law are present. In this case, while the Court agreed that Art. 36 may be applied, it negated the finding that the husband was psychologically incapacitated to comply with his essential obligations in marriage. Following the same, what is indeed essential in these cases is proving the existence of psychological incapacity, in which gravity, incurability, and juridical antecedence must be established. For more of Dean Nilo Divina’s legal tidbits, please visit www.divinalaw.com. For comments and questions, please send an email to cabdo@divinalaw.com. The post Retroactive application of Family Code appeared first on Daily Tribune......»»
PCSO ask lawmakers to toughen laws vs illegal lottery firms
The Philippine Charity Sweepstakes Office General Manager Mel Robles, called out lawmakers on Monday to toughen the law against Illegal lottery firms. Robles personally led the filing of charges at Mandaluyong Prosecutors Office against individuals behind the four firms engaged in unauthorized online lottery operations. “I am calling out the attention of the lawmakers to toughen the law. Maybe others see that they can handle the penalty but we’ll see. Even if it’s light, we will still pursue the cases against them,” Robles said. Robles added that PCSO is losing billions of pesos in revenue because of illegal operations perpetrated by the suspects. “We are serious about this. We will prosecute and imprison everyone associated with this illegal operation to stop them,” he said. The PCSO stated that PayMaya reportedly remitted billions to a company operating an illegal online lottery. “A payment platform, like PayMaya, reported that they were able to remit about P4.7 billion to a company that was operating the Illegal lotto. It is also included in the complaint affidavit,” he said. The criminal complaints were filed against four companies, Eplayment Corporation, Paymero Technologies Limited, GlobalComRCI International, and Blockchain Smart-Tech Co. I.T. Consultancy. The complaints were prompted by an investigation conducted by the National Bureau of Investigation, which revealed that the mentioned companies were responsible for the ownership, operation, and administration of Pakilotto and Surelotto. The companies reportedly misused the PCSO’s name, logo, and various lottery games, soliciting and accepting bets from the public through their unauthorized mobile application and websites. Robles said that based on their investigation, they have found out that the alleged suspects for Illegal online lottery are operating in the cities of Quezon and Cebu. “We found out one in NCR, in Quezon City, the other is in Cebu,” he said. PCSO reported that Eplayment, which operated under the now-defunct website ‘Pakilotto’, was soliciting and accepting bets from the public at an inflated price of P30 per ticket, a 50% markup compared to the standard P20 lotto ticket. Meanwhile, Surelotto, a similar mobile app, sold tickets online for P25, a 25% increase from the regular lotto price. Prizes of smaller denominations are allegedly directly deposited into the winner’s registered bank account, while jackpot prizes require winners to visit the Surelotto office in person. The complaint-affidavit states that the owners, directors, and/or officers of Paymero, Eplayment, GlobalComRMCI, and Blockchain, as owners, operators, and/or administrators of Pakilotto and Sukilotto, have committed Usurpation of Authority under Article 177 of the Revised Penal Code, a violation of R.A. No. 1169, as amended, and a violation of Presidential Decree No. 1602, as amended by Republic Act No. 9287, in connection with Executive Order No. 13, Series of 2017. Robles emphasized that PCSO remains fully committed to preserving the integrity and legitimacy of its lottery games, ensuring fair treatment and protection for the public. The post PCSO ask lawmakers to toughen laws vs illegal lottery firms appeared first on Daily Tribune......»»
Taxpayer’s right to present supporting documents
Imagine being in an examination. The instructions are clear: “You have two hours to complete the exam.” At the end of the first hour, you were surprised. The bell rang, and everyone was asked to submit their paper. This is analogous to the case of Commissioner of Internal Revenue v. Maxicare Healthcare Corporation (G.R. 261065, 10 July 2023). In the beginning, there was nothing outside the ordinary. A Letter of Authority was issued. A tax audit ensued, leading to the issuance of a Preliminary Assessment Notice or PAN. Maxicare filed a response to the PAN. The Bureau of Internal Revenue issued a Formal Letter of Demand and Final Assessment Notice. Maxicare filed a protest against the FLD/FAN requesting a reinvestigation. Maxicare made it explicit that it will submit the pertinent supporting documents and additional explanations within 60 days from the date of filing the protest. However, the BIR issued the Final Decision on Disputed Assessment after the lapse of only 30 days. The Supreme Court declared the assessment against the taxpayer null and void for the manifest violation of the taxpayer’s right to due process. The Court took the opportunity to definitely settle that the reckoning point of the 60-day period for the submission of relevant supporting documents is from the filing of the administrative protest to the FLD/FAN, when such protest constitutes a request for reinvestigation and not from the response or reply to the PAN. The Court clarified that the pronouncement in the Minute Resolution in Commissioner of Internal Revenue v. Roca Security and Investigation Agency (G.R. 241338, 10 April 2019) wherein the 60-day period was reckoned from the filing of the response to the PAN was a glaring error. By failing to observe the statutory period, the taxpayer was denied the opportunity to present evidence, tantamount to denial of a genuine opportunity to be heard. The Court then dissected Section 228 of the Tax Code and Revenue Regulations No. 12-99, as amended. It emphasized the following points: The “pre-assessment notice” mentioned in Section 228 of the Tax Code corresponds to the PAN. The taxpayer shall be required to respond within a period of 15 days from receipt of the PAN; and Section 228 of the Tax Code explicitly sets the period for an “administrative protest of the assessment” at 30 days, which refers specifically to an FLD/FAN protest. This protest may take the form of either a request for consideration or reinvestigation. The Court strongly noted that it is the request for reinvestigation that carries the 60-day period to submit relevant supporting documents. Such an option was not provided with regard to the response to the PAN. Hence, there could be no other conclusion that the 60-day period to submit relevant supporting documents applies to and should be reckoned from filing the protest against the FLD/FAN. The Supreme Court brushed aside the BIR’s plea to apply leniency to the rules of procedure in the name of substantial justice. The Supreme Court reminded the tax authorities, in no uncertain terms, of the clear necessity for the strict observance of procedural rules to safeguard the due process rights of the concerned parties. This is a necessary check against the exercise of the government’s expansive power of taxation. *** For more of Dean Nilo Divina’s legal tidbits, please visit www.divinalaw.com. For comments and questions, please send an email to cabdo@divinalaw.com. The post Taxpayer’s right to present supporting documents appeared first on Daily Tribune......»»
Use of father’s surname, the child’s decision
The misdeeds or oversights of parents cannot and should not disgrace their children. It is for this basic precept that Philippine laws have granted non-marital children (formerly called “illegitimate” children) a myriad of rights akin to — if not totally similar — those of marital children (formerly called “legitimate” children). Notably, their appellation has been changed to a more appropriate description of their parents’ civil status at the time of their birth rather than the birth’s supposed “legitimacy.” Non-marital children are now permitted to carry their father’s surname upon compliance with requirements set by law and related regulations. While Article 176 of the Family Code of the Philippines provides non-marital children’s successional rights, Republic Act 9255, which took effect in 2004, boosted these rights by allowing them to use their father’s surname if their filiation has been recognized by the latter in accordance with some preconditions. The Philippine Statistics Authority or PSA, consequently, revised the implementing rules of RA 9255 in 2016 to better effectuate the wisdom of the law, especially considering the ruling of the Supreme Court in the case of Grace M. Grande v Patricio T. Antonio (G.R. No. 206248, 18 February 2014), which states that neither the father nor the mother is granted the right to dictate the surname of their non-marital children. Instead, the law gives non-marital children the right to decide whether or not they will use their father’s surname. Just recently, PSA issued Memorandum Circular No. 2023-14, which further revised the implementing rules, providing that prevailing rules shall have retroactive effect for all births occurring within or outside the Philippines where a Filipino is concerned. The Office of the Civil Registrar General also amended the same implementing rules through Administrative Order No. 1, series of 2023, so that existing laws and regulations about the use of non-marital children of the surname of their father shall apply to those born during the effectivity of the Family Code of the Philippines or from 3 August 1988 with (a) unregistered births and (b) registered births, where non-marital children use the surname of their mother. Considering these changes, should non-marital children prefer to use the surname of their father, there must exist an express acknowledgment by the latter of the former through any of the following: (a) affidavit of admission of paternity found at the back of the child’s certificate of live birth; (b) affidavit of acknowledgment; or (c) private handwritten instrument signed by the father with his express recognition of the child as his for the rest of his life. These documents shall be filed before the local civil registry where the birth is registered or, in case of unregistered births, where the child is born. Absent the express acknowledgment from the father, the non-martial child cannot use the father’s surname. How, then, is an admission of paternity filed? The father, mother, or non-marital child of legal age may file the affidavit of admission of paternity or affidavit of acknowledgement. In the case of a private handwritten instrument, the same should be personally filed by the father. If the father is deceased, the private handwritten instrument may be filed by the non-marital child, who is of legal age, or the non-marital child’s mother. Should the local civil registry find the requirements complete and without issue after review, the non-marital child’s new surname shall be annotated on the existing certificate of live birth; it shall not be supplied on the portion intended for the last name. The above rules do not include the assignment of a middle name for a non-marital child. An additional Supplemental Report should be filed to supply the child’s middle name on the certificate of live birth. It must be remembered, however, that the non-marital children’s use of the surname of their father does not necessarily make them marital children in legal contemplation — it plainly permits them to publicly use such surname, e.g., in their identity documents like passport, school and employment records, and other documents. There is a separate process for the conversion of a child’s status from non-marital to marital called legitimation. *** For more of Dean Nilo Divina’s legal tidbits, please visit www.divinalaw.com. For comments and questions, please send an email to cabdo@divinalaw.com. The post Use of father’s surname, the child’s decision appeared first on Daily Tribune......»»
SEC eases float disclosure rules
Regulator Securities and Exchange Commission, or SEC, has issued guidelines streamlining the requirements for companies seeking to raise funds in the capital market. The Commission on 12 and 21 September issued SEC Memorandum Circular 13 and 14, Series of 2023 to amend Annex C of Rule 12 of the 2015 Implementing Rules and Regulations of Republic Act 8799, or the Securities Regulation Code. Annex C of SRC Rule 12 details the non-financial information that must be disclosed in the registration statements filed with the SEC by corporations issuing securities such as shares of stock, corporate bonds, and commercial papers in order to raise capital. Part III, Paragraph A, Subparagraph 2(a) of Annex C directs a registrant to discuss its “financial condition, changes in financial condition, and results of operation for each of the last three fiscal years” under the Management’s Discussion and Analysis section of its prospectus. MC 13 clarifies that registrants are required to disclose financial information for only two comparative periods for the last three fiscal years. For instance, financial statements for the year ended 31 December 2022 must contain line items showing comparative balances only for 31 December 2022 and 31 December 2021. In addition, the financial statements must contain line items for the comparative balances only for the fiscal years ended 31 December 2021 and 31 December 2020. Risk factors required MC 14 relaxes the requirement for a registrant to provide mitigating factors in the Risk Factors section of its prospectus, making the disclosure optional. Part I of Annex C directs a registrant to provide a description of its business, including a discussion of major risks involved in the company and its subsidiaries. MC14 amends the provision by stating that “[t]he company may include disclosure of the procedures to identify, assess, and manage such risks.” Furthermore, Paragraph C, Part VI of Annex C has been amended such that “[t]he registrant may indicate measures to mitigate the risks” related to its business. Such risks include factors that make the offering speculative or risky such as the absence of operating history, lack of profit from recent operations, poor financial position, or lack of market for the registrant’s securities. “The streamlined procedures are part of the Commission’s efforts to encourage more companies to tap the capital markets for their business expansion needs,” SEC chairperson Emilio Aquino said. The post SEC eases float disclosure rules appeared first on Daily Tribune......»»
NBI arrests man for ‘sextortion’
Charges will be filed against a man who threatened his girlfriend that he would expose her sex videos, nude photos and rape of her teenage daughter if he would not shell out P10,000. This after the National Bureau of Investigation Anti-Organized and Transnational Crimes Division arrested him based on the complaint of the girlfriend, in an entrapment operation last 19 September in Quezon City. The NBI-AOTCD arranged the entrapment at the girlfriend’s place of work where she handed P10,000 to the man. “Upon handing over of the marked money, the operatives immediately approached the subject and put him under arrest,” the report said. Agents were able to seize the man’s cellphone which contained the nude photos and sex videos of the complainant. Charges were filed before the Quezon City Prosecutor’s Office with robbery and robbery with violence or intimidation of persons under Articles 293 and 294 of the Revised Penal Code, as amended; grave threats as defined and penalized under the RPC; and violations of Republic Act 9995, the Anti-Photo and Video Voyeurism Act of 2009; and RA 9262, the Violence Against Women and Their Children Act of 2004. The NBI said that the suspect’s cousin “offered his testimony in support of the complainant’s allegations, stating that he saw the threats that his cousin sent to complainant and confirmed that subject was extorting P10,000 from the complainant.” The cousin stated that the complainant showed him several online transactions of money transfers to the subject amounting to P50,000. The post NBI arrests man for ‘sextortion’ appeared first on Daily Tribune......»»
Fisherfolk opposes Fisheries Code amendments
TACLOBAN CITY — Fisherfolks, civil society organizations and academic experts are calling on legislators to deny the proposal of the Bureau of the Fisheries and Aquatic Resources to amend the Fisheries Code and commercial fishing vessels in municipal waters. Regional Agriculture and Fisheries Council in Eastern Visayas chairperson Martha Cadano stressed that there were no consultations made with the local government units and other affected sectors before BFAR made the assessment and review of the Republic Act 10654 or the Philippine Fisheries Code. “The assessment and review of RA 10654 is not enough because there was no LGU participation. BFAR should have at least consulted the mayors of affected municipalities before it takes steps,” said Cadano. Cadano leads a community-based and women-led enterprise that processes sardines in Victoria, Northern Samar. In a statement, a broad coalition of academe, civil society and fisherfolk, asked President Ferdinand Marcos Jr. and members of the Congress and the Senate to deny BFAR’s proposal to allow commercial fishing inside the 15-kilometer municipal water zone of the sea. Senator Cynthia Villar, chair of the Senate Committee on Agriculture and Food and the primary author of RA 10654 or the Fisheries Code, as amended, commits towards enabling mechanisms for the strict implementation of the law. To recall, the BFAR conducted consultations in May and on 22 to 23 August and presented their proposed amendments to the Philippine Fisheries Code, among which are to allow commercial fishing as a rule rather than as an exception in the municipal waters, from 10.1 to 15 kilometers and in waters with the depth of 20 fathoms. The post Fisherfolk opposes Fisheries Code amendments appeared first on Daily Tribune......»»
Equal employment opportunity
Dear Atty. Joji, My brother applied as a call center agent here in Manila. Lately, he was diagnosed with a chronic illness which incapacitated him to walk. Upon receiving the job offer, he was notified that due to his disability, his wage would amount to 75 percent of the wage earned by non-disabled employees in the same position. Dismayed, he did not accept the job offer. Is the employer’s contention correct, Atty.? Anthony *** Dear Anthony, No, the employer is not correct. Under Section 5 of RA 7277, as amended by RA 10524, a qualified disabled employee shall be subject to the same terms and conditions and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person. Under Section 6 of the IRR of RA 10524: “Section 6. Equal Employment Opportunity Opportunity for suitable employment shall be open to all qualified PWDs. Efforts shall be exerted to provide qualified PWDs equal opportunity in the selection process based on qualification standards prescribed for an appointment to a position in government and requirements set by the employers in private corporations. No PWD shall be denied access to opportunities for suitable employment. A qualified employee with disability shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives, or allowances as an employed able-bodied person. A person with disability shall not be discriminated on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement, and safe and healthy working conditions.” A qualified disabled person is an employee who can perform, with or without reasonable accommodations, the essential functions of her employment. In this case, your officemate is a qualified disabled person. There was no allegation that she cannot perform the essential functions of her employment. The employer should not have had her wage cut below minimum wage and should have provided the same compensation received by able-bodied employees, since the Magna Carta for Persons with Disability effectively amended Article 80 of the Labor Code with regard to minimum age of such workers. Hope to have enlightened you with your query. Atty. Joji Alonso The post Equal employment opportunity appeared first on Daily Tribune......»»
Employee termination
Dear Atty. Joji, One of our employees has been negligent in performing her tasks and often commits mistakes to the prejudice of the company. She was also unwilling to undertake additional duties that is being assigned to her even though it is stipulated on her employment contract. The management has reached a decision to terminate her employment due to the negative impact of her actions to our business operations. Can we terminate an employee without violating labor laws? Will appreciate your inputs, Atty. Angie Dear Angie, There are two types of employment termination. First is termination by employer and the second is voluntary resignation or termination by employee. Employers can dismiss an employee based on just and authorized causes. Just causes are based on acts attributable to an employee’s own wrongful actions or negligence while authorized causes refer to lawful grounds for termination which do not arise from fault or negligence of the employee. According to Article 282 of the Labor Code, an employer can terminate an employee for just causes, which could be any of the following: 1) serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; 2) gross and habitual neglect by the employee of his duties; 3) fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representatives; 4) commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and other similar causes. However, in cases wherein there is just cause for termination, employers must still comply with the requirements of substantive and procedural due process. Procedural due process consists of the twin requirements of notice and hearing. The employers must furnish the employees with two written notices or the “Two notice Rule” before the termination of employment can be effected. As held in the case of Pepsi-Cola Bottling Co., Inc. v. NLRC: “The law requires that the employer must furnish the worker sought to be dismissed with two written notices before termination of employee can be legally effected: (1) notice which apprises the employee of the particular acts or omissions for which his dismissal is sought, and (2) the subsequent notice which informs the employee of the employer’s decision to dismiss him (Sec. 13, BP130, Sec. 2-6 Rule XIV, Book V, Rules and Regulations Implementing the Labor Code as amended). Failure to comply with the requirements taints the dismissal with illegality. This procedure is mandatory; in the absence of which, any judgment reached by management is void and inexistent. Hope this helps. Atty. Joji Alonso The post Employee termination appeared first on Daily Tribune......»»
Probe starts against Indian-Pinoy trader
The Department of Justice yesterday started the preliminary investigation of multiple counts of falsification of public documents charges against controversial and high-profile businessman Rajiv Chandiramani and several others. The complaints which fall under Paragraph 1 of Article 172, in relation to Article 171, of the Revised Penal Code, were filed by Rajiv’s brother Amith, who claimed that the suspects connived with each other and through deceit and machinations succeeded in depriving him of his inheritance from their father Prem, amounting to billions of pesos in the form of real estate properties and business interests. To recall, Amith earlier this year lodged a complaint before the National Bureau of Investigation which subsequently conducted a thorough and comprehensive probe on the matter. After finding the complaints were full of merits and have a basis in law, the NBI sent a transmittal to the DoJ on 3 August this year, recommending that a preliminary investigation be initiated against Rajiv and the other accused. In a transmittal to Department of Justice Prosecutor General Benedicto A. Malcontento dated 3 August 3, 2023, NBI National Capital Region Director Rommel Vallejos, recommended the filing of seven counts of violation of Paragraph 1 of Article 172, in relation to Article 171 of the Revised Penal Code as amended, against businessman Rajiv Chandiramani. NBI Director Medardo Delemos approved the recommendation. Also charged with Rajiv were his mother Puspha and their cohorts Janet Cardinal, Maria Anita Turqueza, Rommel Olaybar, Christina Gutierrez and Angelito Manuel. “Respectfully transmitted herewith for Preliminary Investigation is the result of the investigation conducted by Special Investigator Ferdinand A. Manuel of the National Bureau of Investigation, national Capital Region Taft Avenue, Manila,” the letter of transmittal read. The post Probe starts against Indian-Pinoy trader appeared first on Daily Tribune......»»
Female recruiter collared for trafficking
A female recruiter allegedly facilitating the travel of five human trafficking victims was arrested by elements of the Inter-Agency Council Against Trafficking recently at the Ninoy Aquino International Airport Terminal 3 after attempting to depart as tourists bound for Malaysia and Singapore. Bureau of Immigration Commissioner Norman Tansingco on Wednesday applauded IACAT’s swift action , saying justice is served for those victimized by human traffickers. The immigration protection and border enforcement department conducted a secondary inspection and conducted an interview with the victims. During the interview, it was confirmed that the five were recruited to work abroad as massage therapists, entertainers, tutors and carers and were made to pose by their recruiter as her employees. The BI’s I-PROBES immediately referred the case to the IACAT. The National Bureau of Investigation-International Airport Investigation Division filed cases against the recruiter for Qualified Trafficking in Persons under Section 6(c) of Republic Act 9208, as amended; Illegal Recruitment committed by a syndicate and in large scale under Republic Act 8042, as amended; and Estafa under Art. 315, par. 2(a) of the Revised Penal Code. Th e arrested recruiter previously made headlines on social media after posting on 10 May about her complaint about the procedures of the Bureau. In her Facebook post, she lamented why she was being stopped from travelling despite having complete documents. Tansingco said that these human traffickers use social media as their playground, where they blatantly recruit victims and even have the audacity to air complaints about procedures protecting Filipinos. The BI chief added that they thank the IACAT for swiftly acting on this case and ensuring that justice is served. The post Female recruiter collared for trafficking appeared first on Daily Tribune......»»
CREATE law’s IRR amendment approved to resolve VAT issues
Finance Secretary Benjamin Diokno and Trade Secretary Alfredo Pascual approved the amendment to the implementing rules and regulations (IRR) of the Corporate Recovery and Tax Incentives for Enterprises (CREATE) Act to resolve the value-added tax (VAT) issues raised by transitory registered business enterprises (RBEs). The Department of Finance (DOF) and Department of Trade and Industry's (DTI) approval of the amendment, specifically to Rule 18, Section 5 of the CREATE Act IRR, was made in response to the Office of the President's directive to review and address the VAT-related issues concerning both domestic market enterprises (DMEs) and registered export enterprises (REEs). Transitory registered DMEs inside the economic or freeport zone availing of the 5 percent gross income tax (GIT) regime will now have the option to register as VAT taxpayers. This will enable VAT-registered DMEs covered by the transitory provisions of CREATE to either charge output VAT to domestic customers or receive a refund from the Bureau of Internal Revenue (BIR) for the input VAT directly attributable to their zero-rated sales. Meanwhile, transitory REEs whose income tax-based incentives have expired may now continue to enjoy VAT zero-rating on their local purchases until the electronic sales reporting system under Section 237-A of the Tax Code, as amended, is fully operational or until the expiration of the 10-year transitory period, whichever comes earlier. Before approving the CREATE IRR amendment, the technical working group (TWG) on VAT led consultations with investment promotion agencies and other relevant stakeholders. The TWG is composed of representatives from the Department of Finance, DTI, and BIR. “We welcome this amendment in support of our RBEs and in alignment with the national government’s efforts to establish a more conducive investment climate in the country,” Diokno said in a statement. The post CREATE law’s IRR amendment approved to resolve VAT issues appeared first on Daily Tribune......»»
Senate wants tougher penalties for perjury
Senators on Monday called on for tougher punishment and increased penalties against people committing perjury, amid the recent retraction of statements by Degamo slay suspects. During a Senate session on Monday, Senator Alan Peter Cayetano cited the three suspects in the murder of Negros Oriental Gov. Roel Degamo who recently recanted their earlier confessions before a Senate panel that tagged suspended Negros Oriental Rep. Arnolfo Teves Jr. as the alleged mastermind of the crime. He also mentioned the case of a witness in former Senator Leila De Lima’s drug case likewise retracting a sworn affidavit. Cayetano wants stricter penalties against witnesses lying, especially during Senate hearings. Senate President Juan Miguel Zubiri said he is very much in favor of Cayetano’s motion to increase the penalties and jail time against those found guilty of committing perjury. “I totally agree that we must toughen our laws on perjury," he said, lamenting that perjury is now becoming a "norm”. “So I think it's about time. Just like [in] the United States, when you give an affidavit, that’s it. When you recant your affidavit, they would file charges against you. This goes on both sides of the political fence as this happened to our former colleague Ma’am De Lima and now in the Degamo case, I think this would cross all political lines,” Zubiri said. The truth should be ferreted out and “if they lied then they should be liable," he added. Senator Francis Tolentino, meanwhile, said amendments may be recommended for rules under several articles of the Revised Penal Code, including the punishment for the act of giving false testimony in judicial proceedings under Articles 180, 181 and 182. “I think it’s about time to amend the rules in so far as the treatment of witnesses acting with malice and malicious intent and lying in violation of several articles of Revised Penal Code…" However, Senate Minority floor leader Koko Pimentel said the increased penalties should be taken as a second option only. “That should be the second step, but the first step I think is to enforce the current law. No matter what the penalty is, the current law should be imposed. The deterrent effects of criminal law — that’s what is missing,” Pimentel said. Senate President Pro Tempore Loren Legarda backed Pimentel’s motion, saying the government should make sure that the law is implemented accordingly. Senator Ronald “Bato” Dela Rosa, meanwhile, pointed out that Republic Act 11594, signed by former President Rodrigo R. Duterte on 29 October 2021, amended Article 183 of RA 3815 or the Revised Penal Code, which penalizes perjury. Under RA 115941, persons who commit perjury face a higher penalty of prison mayor in its minimum period to prison mayor in its medium period, from six years and one day to 10 years of imprisonment. Senator Robinhood Padilla, for his part, suggested varying perjury penalties for civilians and for government officials as well as security officials who commit perjury during hearings or inquiries, while Senator Joel Villanueva stressed the need to impose "bigger" penalties on public officials. The post Senate wants tougher penalties for perjury appeared first on Daily Tribune......»»
Handicapped woes
Dear Atty. Joji, Our officemate Pia is a software engineer in an advertising firm. Sometime in 2015, she figured into an accident which resulted to the loss of her ability to use her legs. Nevertheless, the performance and productivity of Pia remained the same. When the advertising firm had a change of management, Pia noticed that her wage became 25 percent lower than the minimum wage. When Pia asked management as to the sudden diminution of her wage, the management said that handicapped workers may be paid not less than 75 percent of the minimum wage. Is our employer correct? Ava ***** Dear Ava, No, the employer is not correct. Under Section 5 of RA 7277, as amended by RA 10524, a qualified disabled employee shall be subject to the same terms and conditions and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person. Under Section 6 of the IRR of RA 10524: Section 6. Equal Employment Opportunity Opportunity for suitable employment shall be open to all qualified PWDs. Efforts shall be exerted to provide qualified PWDs equal opportunity in the selection process based on qualification standards prescribed for an appointment to a position in government and requirements set by the employers in private corporations. No PWD shall be denied access to opportunities for suitable employment. A qualified employee with disability shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives, or allowances as an employed able-bodied person. A person with disability shall not be discriminated on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement, and safe and healthy working conditions. A qualified disabled person is an employee who can perform, with or without reasonable accommodations, the essential functions of her employment. In this case, Pia is a qualified disabled person. There was no allegation that she cannot perform the essential functions of her employment. The employer should not have had her wage cut below minimum wage and should have provided the same compensation received by able-bodied software engineers in the firm, since the Magna Carta for Persons with Disability effectively amended Article 80 of the Labor Code with regard to minimum age of such workers. Hope to have enlightened you with your query. Atty. Joji Alonso The post Handicapped woes appeared first on Daily Tribune......»»
Overtime woes
Dear Atty. Vlad, I am an employee in a Bank in the City of Manila. In the first week of April this year, my Branch Manager asked me to render overtime work for four days. The following week, however, I only rendered half day’s work for five days. When I received my wages on payday, I noticed that the overtime work that I rendered was not reflected. When I asked my manager why I was not paid overtime pay and overtime pay premium, she told me that my overtime work was offset with the days I only rendered half-day’s work. Please give me advice if my manager was correct. Marie Dear Marie, From what you told to me, your employer did not pay you overtime pay and overtime pay premium because the Bank had offset your overtime work with your undertime work. Pursuant to Article 88 of the Labor Code, as amended, “[u]ndertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required in this Chapter.” The foregoing provisions of the Labor Code regarding the offsetting of undertime work overtime work is very clear. What your employer should have done was, pay you only for the half-day’s work rendered and at the same time, pay you for the overtime work plus overtime work premium of 25 percent, pursuant to Article 87 of the same code, to wit: “Overtime work. Work may be performed beyond eight hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least 25 percent thereof. x x x” I hope that I was able to help you based on what you shared to me. Atty. Vlad del Rosario The post Overtime woes appeared first on Daily Tribune......»»
Preventive suspension not indefinite
Dear Atty. Vlad, I am a supervisor in a manufacturing plant in Laguna. One of my fellow supervisors accused me of stealing a laptop from the office. When word spread of the accusation, the management suddenly issued a memo and placed me under indefinite preventive suspension. They said they will be investigating but did not provide any period for the preventive suspension. I would like to know if my preventive suspension is valid and if I will not be receiving any salary for the time being. ***** Mark Dear Mark, An employee may be placed under preventive suspension when his continued presence poses a serious and imminent threat to the employer’s or co-workers’ life or property. When justified, the preventively suspended employee is not entitled to the payment of his salaries and benefits during the period of suspension. In the case of Every Nation Language Institute and Ralph Martin Ligon vs Maria Minelie dela Cruz, G.R. 225100, 19 February 2020, the Supreme Court explained the grounds for preventive suspension and for how long can an employee be placed under preventive suspension, to wit: “Placing an employee under preventive suspension is allowed under Section 8, Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code, as amended. This section provides: Section 8. Preventive suspension. The employer may place the worker concerned under preventive suspension only if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. Preventive suspension is not a penalty but a disciplinary measure to protect life or property of the employer or the co-workers pending investigation of any alleged infraction committed by the employee. Thus, it is justified only when the employee’s continued employment poses a serious and imminent threat to the employer’s or co-workers’ life or property. When justified, the preventively suspended employee is not entitled to the payment of his salaries and benefits for the period of suspension.” ***** “xxx management’s prerogative of placing an employee under preventive suspension is further temporally limited. Section 9 of the Omnibus Rules Implementing the Labor Code limits the duration of the preventive suspension to a maximum of 30 days: Section 9. Period of suspension. No preventive suspension shall last longer than 30 days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. Section 9 is clear that the employer had the positive duty of reinstating the preventively suspended employee upon the lapse of the 30-day period sans extension. When the period of preventive suspension exceeds the maximum period allowed without reinstating the employee actually or through payroll, or when the preventive suspension is for an indefinite period, constructive dismissal sets in.” As can be gleaned above, even if management was able to prove that your presence poses a serious and imminent threat to your employer’s or co-workers’ life or property, the period of preventive suspension cannot be indefinite. After 30 calendar days, you must either be reinstated physically or in payroll. If your employer fails to do this, this will amount to constructive dismissal. I hope that I was able to help you based on the facts that you shared with me. Atty. Vlad del Rosario The post Preventive suspension not indefinite appeared first on Daily Tribune......»»
Comelec pressed on slow pace against nuisance petitions
The Commission on Elections was asked on Monday about the slow pace in deciding the nuisance petition related to the Negros Oriental gubernatorial race between the late Governor Roel Degamo, his rival and former Governor Pryde Henry Teves and a certain Ruel Degamo, who was deemed a nuisance candidate. In a Senate hearing on the assassination of Governor Degamo, Comelec chairman George Erwin Garcia said the delayed ruling in the petition filed by Degamo to declare a certain "Ruel Degamo" a nuisance candidate is due to the lack of composition within the Comelec En Banc at the time. The delay referred to the period in October 2021 when Degamo filed a nuisance petition against "Ruel Degamo", whose real name is Grego Gaudia, up until 1 September last year when the poll body finally decided to declare the latter Degamo a nuisance candidate. Before the finality of the decision that declared Ruel Degamo a nuisance candidate, only four of the seven Comelec commissioners were still in their positions: Commissioners Socorro Inting, Marlon Casquejo, Aimee Ferolino and Rey Bulay. Garcia said that by the time of the decision, the vote was 2-2, which meant there should be a tie-breaker. He was not able to make his vote final until after his appointment and confirmation. “A decision was not immediately made by the En Banc because I and two of our other commissioners hadn't been appointed yet. The resolution was set aside. The voting among the four remaining commissioners was 2-2. It was only when yours truly was appointed that I broke the tie in favor of Gov. Degamo,” said Garcia. Garcia also cited the volume of nuisance cases piling up with the Comelec, while the agency also has to respond to electoral petitions such as disqualification cases. He said there are 29 remaining nuisance cases on top of more than a thousand electoral disqualification cases pending before the poll body. He said the poll body is determined to resolve all nuisance petitions before the next election, and push to penalize nuisance candidacies in the future. “We have been pushing for the amendment of Section 69 of the Omnibus Election Code that defines nuisance candidates. We should criminalize nuisance candidacies. It should be criminalized either with imprisonment or fine, and perpetual disqualification from public office,” Garcia said. “If there is conspiracy, everyone involved should likewise be charged for misrepresentation of perjury, but at the same time, for the filing of nuisance candidacies,” he added. In response, Senator Risa Hontiveros welcomed the proposals by the Comelec, but said the measures could have been done earlier. She previously called the poll body’s slow process "ineffective and inefficient", which causes vindictiveness among political candidates. “I hope that we have a clear vision on this. We could have done this in the case of Gov. Degamo. Maybe he’ll still be alive by then,” Hontiveros said. Senator Ronald “Bato” Dela Rosa also vowed that the Senate will move on the proposed changes in the Omnibus Election Code, which is currently being heard in the Upper Chamber. “I hope that before the 2025 elections, your suggestion on the amendment of the provision on the Omnibus Election Code could be amended. Our lawmakers here are listening. Let’s work on this,” he said. The post Comelec pressed on slow pace against nuisance petitions appeared first on Daily Tribune......»»
SC eyes lawyers’ code launch
The Supreme Court will launch at the Manila Hotel the approved Code of Professional Responsibility and Accountability — a set of rules on the ethical conduct and accountability of lawyers in the practice of law. In a unanimous vote by SC justices during their 11 April summer session in Baguio City, the CPRA was approved that amended the 34 -year-old Code of Professional Responsibility of lawyers. On Thursday, 13 April, the new rules will be launched officially during a program set by the SC at the Manila Hotel starting at 8 a.m. The launching of the CPRA will gather over 250 members of the judiciary and lawyers, prosecutors and other members of the legal profession and the academe. It is the culmination of the five-leg Ethics Caravan, a series of consultative discussions, held in the cities of Cebu, Davao, Naga, Baguio and Manila. During the Cebu City leg of the caravan, Chief Justice Alexander G. Gesmundo emphasized the addition of “accountability” in the tile of the code “as a significant change reinforcing ethical commitment among lawyers.” The post SC eyes lawyers’ code launch appeared first on Daily Tribune......»»
SoCot guv vetoes open-pit mining ordinance
KORONADAL CITY - South Cotabato Governor Reynaldo Tamayo Jr. has vetoed the amended Environment Code Ordinance that sought to lift the open-pit mining ban in the province.In a press conference Friday, Tamayo said he was quite surprised that the Sangguniang Panlalawigan (SP) "quickly" approve.....»»
Heinous crime, lighter penalty
Under the Revised Penal Code (Article 267 paragraph 4 as Amended by R.A. 7659) the maximum penalty of death shall be imposed for the complex crime of kidnapping with rape. This is the crime committed and proven in this case, but the maximum penalty was not imposed for the reason set forth hereunder......»»