Backdoor taxation (taxes disguised as ‘fees’)

To the credit of Supreme Court, it reacted swiftly to the clamor of taxpayers for reduction of the recent increase in CTA filing fees. At the risk of being perceived to have been precipitate in implementing the increase, the Supreme Court, in a display of self-reproach decided to reduce by 50 percent the fee for assessments in excess of P50 million. The filing fee, however, as reduced, is still based on the total amount of the assessment, without any cap, which makes it still onerous.

We are informed that the Bankers Association of the Philippines, Chinese Filipino Business Club, Makati Business Club, Makati Business Club, Management Association of the Philippines, Philippine Chamber of Commerce, Philippine Exporters Confederation and Industry, Federation of Philippine Industries have formally "protested" the adjusted fees and are batting for a cap or ceiling.

Moreover, the Supreme Court may have overlooked the plight of those who happened to have the tough lack of having filed their appeal before the reduction. There are taxpayers who are wondering if there are any legal remedies available for securing a refund. They are mulling over the idea of filing claims for refund.

For the sake of equity, a refund may be justified under the peculiar circumstances, and to avoid a possible ludicrous scenario.

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As background, the sudden and substantial increase in the CTA filing fees was triggered by Republic Act 9227 passed by Congress last Oct. 23, 2003 which: (1) declared it "a policy of the State to adopt measures to guarantee the independence of the judiciary"; (2) Granted to all justices and judges a "special allowance" equivalent to 100 percent of their basic monthly salary under the Salary Standardization Law (RA 6758), to be implemented over four years; (3) providing that "the amount necessary to implement the additional compensation shall be sourced from legal fees collected from increases in current fees and new fees which may be imposed by the Supreme Court"; (4) providing that "should such fees be insufficient to cover the increase, the National Government shall subsidize the shortfall in an amount not exceeding P165 million per annum"; (5) providing that if said fees exceed the increase in compensation, the surplus may be used by the Chief Justice to grant additional allowances for other court personnel; and (6) providing further that "existing allowances and fringe benefits currently chargeable against the increase in filing fees which accrue to the Judicial Development Fund (JDF) created under Presidential Decree No. 1949, shall continue to be funded and charged against the JDF.

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This sequel to a previous article is not intended to belabor the issue on the CTA filing fees. There is no issue on insuring judicial independence by augmenting the compensation of members of the judiciary. But beyond the issue of the reasonableness of the filing fees, there is the question of the propriety of the method resorted to by Congress in sourcing the principal funding of the increase in compensation by authorizing an increase in the filing fees and the imposition of new ones, instead of sourcing it from taxes. From the nature and magnitude of the expense, such expense should form part of the general appropriations, to be funded by the revenues from taxes and not from fees.

While the judiciary enjoys fiscal autonomy, the 1987 Constitutional Commission debate on this particular provision, as articulated by Delegate Christian Monsod, is clear in that the judiciary "should not be exempt from the budgetary process of submitting and justifying its budget." (Bernas, The 1987 Constitution, 2003 Ed., p. 129).

"Fees" and "taxes" are not one and the same. Unlike taxes, the imposition of fees is for a limited purpose and is not to generate revenues (like taxes). Congress disregarded the basic distinction between a "fee" and a "tax" in the context of what is required to fund a basic and substantial expenditure, which should properly form part of the general appropriations and funded by revenue from taxes. Making the judiciary directly responsible for sourcing the fund to cover the compensation increase via the imposition of legal fees is questionable. In the process, the burden of subsidizing a substantial expenditure is confined to a small and select group of taxpayers – those who happen to be involved in disputed assessments. In resorting to such a dubious method, Congress may have violated the constitutionally-prescribed budgetary and general appropriations process.

The law also failed to set standards to guard against the setting of unreasonable fees and possible misuse (even if unintended) of the delegated authority. There are no limits to the amount that can be imposed. Even basic due process (a public hearing on any proposed fee increase) was overlooked. As it is, RA 9277 appears to suffer from a constitutional infirmity (i.e., possible violation of due process, uniformity of taxation, as well as the right to property).

To correct what appears to be a case of backdoor taxation (taxes in the guise of fees), and to spare the high court from a ludicrous situation of having to resolve an issue that directly affects itself, a way out is for Congress to just repeal the law and provide for the increase in compensation in the national budget and the general appropriations, to be funded out of taxes (as opposed to fees), which was what should have been done, in the first place. Congress should, instead, allocate part of the pork barrel to fund the increase instead of funding waiting sheds and unfinished stretches of roads.

Congress should also take a hard look at PD No. 1949 which was issued by a Martial Law President doubling as the legislature, which may have been the model used in enacting RA 9227, resulting in apparent overlap.

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Below are excerpts from a letter of Atty. Elvessa P. Apolinario, Clerk of Court, Court of Tax Appeals, dated Aug. 12, 2004:

"This is in reaction to your article "Unconscionable CTA filing fees" published in The Philippine STAR last Aug. 10, 2004.

The problem relative to the alleged "unconscionable" CTA filing fees has already been addressed by the Supreme Court in its Resolution published in the Manila Bulletin last July 26, 2004, amending Rule 141 of the Revised Rules of Court on Legal Fees. For cases involving P50,000,000 and above, the rate has been reduced by one-half (1/2) of the previous rate, which is even lower than that collected by the Regional Trial Court.

May I request that you cause the publication in your column that the issue of CTA filing fees has been resolved by the SC.

Incidentally, while the CTA Justices have ideas on the application of mediation, they will welcome any suggestion/s as to how or the instances mediation may be applied to tax cases."

We wish to thank her for the clarification and apologize for missing out on the publication of the Supreme Court Resolution on the fee reduction.

Just a comment on the comparison between the RTC filing fee and that of the CTA. In the ordinary civil case, the fee is based on the amount being claimed, which is usually based on a contract. In the case of an assessment, however, the amount is determined by the BIR, and the taxpayer has no control over the amount of the assessment. Hence, the amount of the assessment, by its nature, is not a fair basis for determining the fee.

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(The author may be reached at cel no. 0917-5381938 and tel. no. 894-0109; email at [email protected])