Commissioner of Internal Revenue

vs.
Metro Star Superama, Inc. (December 8, 2010)

A Letter of Authority was issued for the examination Metro Star Superama Inc.’s
(Metro Star) books of accounts and other accounting records for income tax and
other internal revenue taxes for the taxable year 1999. For Metro Star’s failure to
comply with several requests for the presentation of records and Subpoena
DucesTecum, an Indorsement dated September 26, 2001 was issued informing
Revenue District Officer of Legazpi City to proceed with the investigation based on
the best evidence obtainable preparatory to the issuance of assessment notice.

On November 8, 2001, a Preliminary 15-day Letter, which Metro Star received on

November 9, 2001, was issued stating that a post audit review was held and it was
ascertained that there was deficiency value-added and withholding taxes due from
Metro Star. On April 11, 2002, Metro Star received a Formal Letter of Demand
dated April 3, 2002 assessing it an amount for deficiency value-added and
withholding taxes for the taxable year 1999.

Subsequently, a Final Notice of Seizure dated May 12, 2003 was sent to Metro Star,
which it received on May 15, 2003, giving it the last opportunity to settle its
deficiency tax liabilities within 10 days from receipt thereof. On February 6, 2004,
Metro Star received a Warrant of Distraint/Levy dated May 12, 2003 demanding
payment of deficiency value-added tax and withholding tax payment. On July 30,
2004, Metro Star filed with the Office of the CIR a MR which was denied. Denying
that it received a Preliminary Assessment Notice (PAN) and claiming that it
was not accorded with due process, Metro Star filed a petition for review with the
CTA. The CTA-Second Division granted Metro Star’s petition for review. A
reconsideration was sought by the CIR but it was denied. On appeal to the CTA-En
Banc, the petition was dismissed.

ISSUE: Whether failure to send the PAN would render the assessment null and void

RULING:

Jurisprudence is replete with cases holding that if the taxpayer denies ever
having received an assessment from the BIR, it is incumbent upon the
latter to prove by competent evidence that such notice was indeed
received by the addressee. The onus probandi was shifted to respondent to
prove by contrary evidence that the Petitioner received the assessment in
the due course of mail. The Supreme Court has consistently held that while a
mailed letter is deemed received by the addressee in the course of mail, this is
merely a disputable presumption subject to controversion and a direct denial
thereof shifts the burden to the party favored by the presumption to prove that the
mailed letter was indeed received by the addressee (Republic vs. Court of Appeals,
149 SCRA 351).
The Court agrees with the CTA that the CIR failed to discharge its duty and present
any evidence to show that Metro Star indeed received the PAN dated January 16,
2002. It could have simply presented the registry receipt or the certification from
the postmaster that it mailed the PAN, but failed. Neither did it offer any
explanation on why it failed to comply with the requirement of service of the PAN.

Indeed, Section 228 of the Tax Code clearly requires that the taxpayer must first be
informed that he is liable for deficiency taxes through the sending of a PAN.
He must be informed of the facts and the law upon which the assessment is
made. The law imposes a substantive, not merely a formal, requirement. To
proceed heedlessly with tax collection without first establishing a valid assessment
is evidently violative of the cardinal principle in administrative investigations - that
taxpayers should be able to present their case and adduce supporting evidence.

This is confirmed under the provisions R.R. No. 12-99 of the BIR which pertinently
provide:

3.1.2 Preliminary Assessment Notice (PAN). - If after review and

evaluation by the Assessment Division or by the Commissioner or his
duly authorized representative, as the case may be, it is determined
that there exists sufficient basis to assess the taxpayer for any
deficiency tax or taxes, the said Office shall issue to the taxpayer, at
least by registered mail, a Preliminary Assessment Notice (PAN) for
the proposed assessment, showing in detail, the facts and the law,
rules and regulations, or jurisprudence on which the proposed
assessment is based (see illustration in ANNEX A hereof). If the
taxpayer fails to respond within fifteen (15) days from date of
receipt of the PAN, he shall be considered in default, in which case, a
formal letter of demand and assessment notice shall be caused to be
issued by the said Office, calling for payment of the taxpayer's
deficiency tax liability, inclusive of the applicable penalties.

From the provision quoted above, it is clear that the sending of a PAN to taxpayer
to inform him of the assessment made is but part of the “due process requirement
in the issuance of a deficiency tax assessment,” the absence of which renders
nugatory any assessment made by the tax authorities. The use of the word “shall”
in subsection 3.1.2 describes the mandatory nature of the service of a PAN. The
persuasiveness of the right to due process reaches both substantial and procedural
rights and the failure of the CIR to strictly comply with the requirements laid down
by law and its own rules is a denial of Metro Star’s right to due process. Thus, for
its failure to send the PAN stating the facts and the law on which the assessment
was made as required by Section 228 of R.A. No. 8424, the assessment made by
the CIR is void.