“The failure to file tax returns is not inherently wrong in the absence of a law punishing it."
The now-infamous excerpt from The Commission on Elections (Comelec) First Division ruling that junked the consolidated three disqualification cases against Ferdinand "Bongbong" Marcos Jr. has been met with criticism and bewilderment on social media.
Lawyer Ted Te asked on Twitter whether there's already "no need" to file ITRs anymore because there's no law punishing non-filing.
So Comelec says there's no need to file ITRs anymore because there's no law punishing non-filing? I'm sure they meant that as a general statement for everyone and not just for "you know who" because they're not, you know, biased.— Ted Te (@TedTe) February 10, 2022
"I'm sure they meant that as a general statement for everyone and not just for 'you know who'," Te wrote, alluding to Marcos Jr., "because they're not, you know, biased."
Te is the lead counsel for the group of civic leaders whose petition to cancel Marcos Jr.'s COC had been junked by the Comelec Second Division last Jan. 17.
Many netizens have also asked, in jest or in all seriousness, if they should already do away with filing ITRs, even go as far as skip filing taxes altogether.
Rommel Lopez, PressOnePH journalist, on Twitter "thanked" Ferolino for her ponencia, saying he already has a reason not to pay taxes.
"The failure to file tax returns is not inherently wrong in the absence of a law punishing it." - Comm. Ferolino.— Rommel Lopez (@RommelFLopez) February 10, 2022
Salamat Ms. Ferolino! May gagamitin akong rason not to pay my taxes.
JC Punongbayan, assistant professor of economy at the University of the Philippines Diliman, posted a text image that read, "By not disqualifying Marcos Jr, is the Comelec really saying it's okay for Filipinos not to pay their taxes and ITRs???"
Bad signal. pic.twitter.com/8KQuuZ7wyH— JC Punongbayan (@jcpunongbayan) February 10, 2022
Petitioners' argument, Comelec First Division's ruling
Petitioners of the consolidated cases pinned their hopes on the conviction of Marcos Jr. for violating the 1977 National Internal Revenue Code. He failed to pay taxes and file ITRs during his tenure as an Ilocos Norte official from 1982 to 1985.
This, they argued, perpetually disqualified the late dictator's son and namesake from public office.
The Court of Appeals (CA) in 1997 acquitted Marcos Jr. of tax evasion, but upheld the guilty verdict on his failure to file tax returns. He had been slapped with payment of deficient taxes and fines, though the CA removed the 18-month prison sentence.
The Comelec First Division, in its 41-page ruling promulgated on Feb. 10, highlighted the CA decision: That it convicted Marcos Jr. only for non-filing of ITRs, and had not perpetually disqualified him from public office.
It also questioned why the petitioners "concluded" that the CA "did not delete the penalty of three years imprisonment when it was clearly absent in the decision."
Commissioner Aimee Ferolino penned the resolution originally intended for a Jan. 17 release, but was deferred back after Comelec staff members reportedly tested positive for COVID-19.
Former First Division Presiding Commissioner Marlon Casquejo also penned a separate concurring opinion, reinforcing their position that failure to file tax returns is not inherently wrong in the absence of a law punishing it.
"We cannot justify that such omission necessarily results to (sic) injustice; this is an overkill," Casquejo wrote. "We cannot link such omission to contravention of morals; this is an exaggerated innuendo."
"We cannot resolve a crime of omission on the basis of strong public clamor insisting that the omission is inherently evil and despicable as it is," he added.
The first division also argued that Marcos Jr. didn't commit a crime of moral turpitude, which is a ground for disqualification.
The Supreme Court defines moral turpitude as "everything which is done contrary to justice, modesty, or good morals; an act of baseness, vileness or depravity."
'Ang bright bright nyo naman'
In a Facebook post, retired Commissioner Rowena Guanzon questioned how Marcos Jr. had been convicted in the first place if there's no law punishing the non-filing of ITR.
"Why was BBM convicted then?" Guanzon wrote. "Ang bright bright nyo naman."
In another post, Guanzon addressed in length how Ferolino came up with her decision.
She pointed out that Ferolino equated crimes involving moral turpitude with crimes mala in se, or wrong in itself, citing the case of Zari v. Flores in 1979.
But Guanzon said the high court already clarified in a more recent case, the International Rice Research Institute v. NLRC in 1993, that:
"[It] cannot always be ascertained whether moral turpitude does or does not exist by classifying a crime as malum in se or as malum prohibitum, since there are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only."
The former commissioner also questioned why Ferolino relied exclusively on the elements of offense, saying that the determination of whether an offense involves moral turpitude is a question of facts and depends on all the surrounding circumstances.
"Ferolino chose to turn a blind eye to the circumstances surrounding Marcos Jr.'s offense," Guanzon wrote.
She also took exception to Ferolino arguing that Marcos Jr. did not "voluntarily and intentionally violate the law" for non-filing of ITRs.
"Is he stupid that he did not know that he should file an ITR?" Guanzon said. "Di ba Oxford graduate daw siya, bakit hindi nya alam something as basic as that."
"Now, if alam niya that he should have filed, then his failure to file for four years is already an indicia that such a failure was voluntary and intentional," she concluded.
During her last days in office, Guanzon publicly crossed swords with Ferolino and accused her of deliberately delaying the promulgation of the ruling so by the time she retires on Feb. 2, her vote won't be counted.
She released her separate opinion on the consolidated cases, saying she voted to disqualify Marcos Jr. for committing a crime of moral turpitude as he failed to file ITRs.
'Taken out of context'
In a media conference, Comelec spokesman James Jimenez called out critics for taking the ruling's excerpt "out of context."
"What they're saying on social media is that okay lang pala na huwag mag-file ng ITR," Jimenez said. "Mali din iyon, because even in the decision itself, the Comelec points out that, in fact, a special law was passed to penalize failure to file ITRs."
Jimenez pointed out that while “The failure to file tax returns is not inherently wrong in the absence of a law punishing it" was indeed stated in the decision, he said it's just trying to raise a point regarding crimes that are mala in se and mala prohibita.
Mala in se are crimes that are inherently wrong, Jimenez noted, citing murder as example. As for mala prohibita, he said they're crimes that are considered wrong only because of prohibitions, citing jaywalking as example.
"It is wrong to say that walang offense ang failure to file ITR," Jimenez said. "Comelec said meron nga e. Meron nga."
He added that failure to file ITR, by itself, "is not necessarily tax evasion," noting that they're two different offenses punished differently under the law.
Jimenez also noted that Comelec First Division doesn't have the power to overturn or modify the CA's 1997 decision which it banked on in favoring Marcos Jr.
"It's that simple," he said. "Whether that CA ruling is accurate, that's entirely a different conversation."