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Phil Star -By Jose Rodel Clapano
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Date Posted: 07:42:05 08/05/05 Fri
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‘Juday’ wants tax raps dismissed
By Jose Rodel Clapano
The Philippine Star 08/05/2005
( Front Page of the Star Newspaper )
Movie and television star Judy Anne Santos asked the Department of Justice (DOJ) yesterday to dismiss the tax evasion case which the Bureau of Internal Revenue (BIR) filed against her last May 18.
In a 14-page rejoinder, "Juday," as Santos is known in showbiz, also asked the DOJ to immediately file in court the graft and perjury charges she had earlier filed against former internal revenue commissioner Guillermo Parayno, and BIR examiners Roderick Abad, Stimson Cureg, Vilma Caronan, Rhodora de los Reyes and Teodora Purino.
Bonifacio Alentajan, Santos’ lawyer, said the five BIR examiners led by Abad came out with new and "unauthorized accusations" in their reply-affidavit and supplemental complaint-affidavit that Juday’s "additional undeclared income" from Century Canning Corp. and Regal Entertainment, Inc. had brought her total income for 2002 to P16,396,234.70, and her undeclared income to P8,362,902.
"The preceding only proves beyond reasonable doubt that their original joint affidavit, upon which the complaint of Parayno was based, is absolutely false and perjured, because it specifically alleged the undeclared income in the amount of only P6,762,902," he said.
Alentajan said it is fundamental in all criminal prosecutions that the accused shall enjoy the constitutional right to be informed of the nature and cause of accusations against him.
"Every material fact and essential ingredient of the offense, every essential element of the offense, must be alleged with precision and certainty," he said.
"Such description of the particular act alleged to have been committed by the accused must be sufficiently full and complete that will enable him to properly defend himself against the accusation, and to accord him his constitutional right to due process," Alentajan said.
He said changing and adding new causes of action and accusations in the supplemental complaint would "grossly violate" the constitutional right to due process of the accused.
"This is aggravated by the lack of authority from the commissioner of internal revenue who has the sole power to do so," he said.
"The inveracity and falsity of complainant’s accusations are judicially admitted by the five BIR examiners when they stated in their reply-affidavit, under oath, that to reiterate, the estimated tax liability of P1,718,925.52 stated in the (BIR’s) joint affidavit referred only to the deficiency income tax for (Santos’) undeclared income," Alentajan said.
He added that according to the BIR examiners, "said amount of P1,718,925.52" had already "taken into account" all taxes withheld from Juday’s income.
"How do they arrive at the amount of P3,710,319.32 as the income tax due?" Alentajan asked.
"The complaint and joint affidavit contained no explanation. It must be noted that the preceding computation did not allow any cost, expense, or deduction from the alleged undeclared income.
"This is imperative because income tax is imposable only on the net income of self-employed. The (BIR examiners) further alleged that they omitted the presentation of the above mathematical computations on the assumption that respondent and her esteemed counsel would readily and easily understand the simple and clear allegations in our joint affidavit, as any reasonable person would undoubtedly so understand," Alentajan said.
He said the charges against Santos in the BIR examiners’ affidavit-complaint and supplemental affidavit indicate that they have "desperately resorted" to perjury.
"The foregoing adulterated and unauthorized accusations are merely based on erroneous presumptions, but they are not evidence of anything," he said.
"What the five BIR examiners have is merely an estimated tax liability. There is no report of the investigation conducted. No working paper accomplished by the examiners. No audit report. Nothing whatsoever.
"There is no actual assessment nor a final notice and demand for the payment thereof served upon respondent as required," Alentajan said.
He said the BIR hastily filed the tax evasion complaint against Santos while the investigation of her tax compliance records was still going on.
"Why this precipitate and hasty filing of a conjectural criminal complaint purely based on hearsay?" he asked.
"And with massive tri-media coverage," he added, "Commissioner Parayno should have given the respondent ample opportunity to explain her side, and rectify her mistakes, if there were any.
"If deficiency is correctly ascertained, then he has the duty to collect it. Instead, Ex-Commissioner Parayno opted to be highhanded and oppressive.
"Without doubt, harassment and manifest partiality are evident, and due process of law clearly denied. In the light of all the foregoing, it cannot be said that respondent attempted to willfully evade the payment of her income taxes," Alentajan said, even as he denied that Santos had willfully avoided paying taxes, as the BIR had alleged.
"There is no allegation nor proof presented that respondent Judy Anne Lumagui Santos knowingly and willfully filed a fraudulent return with intent to evade and defeat part or all her taxes," he said.
"Simply stated, for a criminal prosecution to proceed before assessment, there must be a prima facie showing of a willful attempt to evade payment of all or part of the income taxes. In the instant proceeding, such circumstance is inexistent," Alentajan said.
Meanwhile, Santos said Parayno’s resignation as BIR commissioner indicates he is no longer interested in pursuing the case against her actress, and that the five BIR examiners cannot substitute for him in the case.
"Commissioner Parayno failed to submit his reply affidavit and refute my allegations in my counter-affidavit," she said.
"Under the Internal Revenue Code, the exclusive power of the BIR commissioner to initiate and prosecute criminal actions cannot be delegated nor passed on to the five BIR examiners," Santos said.
She said the complaint of tax evasion filed against her before the DOJ was perjured and deliberately falsified by Parayno and the five BIR examiners.
They falsely accused her of tax evasion when they based their complaint on "substantial under-declaration of her income," she added.
The BIR said based on her 2002 income tax return, Juday had declared the P8,033,332.70 as income solely from ABS-CBN Broadcasting Corp.
However, initial documents gathered from BIR offices and those given by Santos’ accountant and other third parties confirmed that Santos received in 2002 income amounting to P14,796,234.70, not only from ABS-CBN, but also from other sources, the BIR added.
The BIR said Juday received from ABS-CBN income amounting to P11,055,554.70; Viva Productions, Inc. P2,925,000; Star Cinema, P815,680 or a total of P14,796,234.70.
Comparing the income declared by Juday in her 2002 income tax return amounting to P8,033,332.70, and the income the BIR has confirmed was paid to her for the same year amounting to P14,796,234.70, it is clear that Juday failed to declare P6,762,902 in income, the BIR maintained.
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