2009 BAR EXAMINATION QUESTION

CIVIL LAW

13 September 2009 8 A.M. - 12 NN.

INSTRUCTIONS

This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions
(numbered I to X), contained in five (5) pages; and Part II with ten (10)
questions (numbered XI-XX), contained in five (5) pages, for a total number
of ten (10) pages.

Write your answers to Part I and Part II in the corresponding portions

indicated in the booklet.

Begin your answer to each numbered question on a separate page; an

answer to a subquestion under the same number may be written
continuously on the same page and succeeding pages until completed.

Answer the questions directly and concisely. Do not repeat the questions.
Write legibly.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.

GOOD LUCK!

ANTONIO EDUARDO B. NACHURA

CHAIRPERSON
2009 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS ELEVEN (11) PAGES (INCLUDING
THIS PAGE).

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the

statement is false. Explain your answer in not more than two (2) sentences.
(5%)
[a] The doctrine of “processual presumption” allows the court of the forum to
presume that the foreign law applicable to the case is the same as the local
or domestic law.

[b] In reserva troncal, all reservatarios (reservees) inherit as a class and in

equal shares regardless of their proximity in degree to the prepositus.

[c] An oral partnership is valid.

[d] An oral promise of guaranty is valid and binding.

[e] A dead child can be legitimated.

II

Dr. Lopez, a 70-year old widower, and his son Roberto both died in a fire that
gutted their home while they were sleeping in their air-conditioned rooms.
Roberto’s wife, Marilyn, and their two children were spared because they
were in the province at the time. Dr. Lopez left an estate worth P20M and a
life insurance policy in the amount of P1M with his three children --- one of
whom is Roberto --- as beneficiaries.

Marilyn is now claiming for herself and her children her husband’s share in
the estate left by Dr. Lopez, and her husband’s share in the proceeds of Dr.
Lopez’s life insurance policy. Rule on the validity of Marilyn’s claims with
reasons. (4%)

III

In December 2000, Michael and Anna, after obtaining a valid marriage

license, went to the Office of the Mayor of Urbano, Bulacan, to get married.
The Mayor was not there, but the Mayor’s secretary asked Michael and Anna
and their witnesses to fill up and sign the required marriage contract forms.
The secretary then told them to wait, and went out to look for the Mayor who
was attending a wedding in a neighboring municipality.

When the secretary caught up with the Mayor at the wedding reception, she
showed him the marriage contract forms and told him that the couple and
their witnesses were waiting in his office. The Mayor forthwith signed all the
copies of the marriage contract, gave them to the secretary who returned to
the Mayor’s office. She then gave copies of the marriage contract to the
parties, and told Michael and Anna that they were already married.
Thereafter, the couple lived together as husband and wife, and had three
sons.

[a] Is the marriage of Michael and Anna valid, voidable, or void? Explain your
answer. (3%)

[b] What is the status of the three children of Michael and Anna? Explain
your answer. (2%)

[c] What property regime governs the properties acquired by the couple?
Explain. (2%)

IV

Harry married Wilma, a very wealthy woman. Barely five (5) years into the
marriage, Wilma fell in love with Joseph. Thus, Wilma went to a small
country in Europe, became a naturalized citizen of that country, divorced
Harry, and married Joseph. A year thereafter, Wilma and Joseph returned
and established permanent residence in the Philippines.

[a] Is the divorce obtained by Wilma from Harry recognized in the

Philippines? Explain your answer. (3%)

[b] If Harry hires you as his lawyer, what legal recourse would you advise
him to take? Why? (2%)

[c] Harry tells you that he has fallen in love with another woman, Elizabeth,
and wants to marry her because, after all, Wilma is already married to
Joseph. Can Harry legally marry Elizabeth? Explain. (2%)

Four children, namely: Alberto, Baldomero, Caridad, and Dioscoro, were born
to the spouses Conrado and Clarita de la Costa. The children’s birth
certificates were duly signed by Conrado, showing them to be the couple’s
legitimate children.

Later, one Edilberto de la Cruz executed a notarial document acknowledging

Alberto and Baldomero as his illegitimate children with Clarita. Edilberto died
leaving substantial properties. In the settlement of his estate, Alberto and
Baldomero intervened claiming shares as the deceased’s illegitimate children.
The legitimate family of Edilberto opposed the claim.

Are Alberto and Baldomero entitled to share in the estate of Edilberto?

Explain. (4%)

VI

On December 1, 2000, Dr. Juanito Fuentes executed a holographic will,

wherein he gave nothing to his recognized illegitimate son, Jay. Dr. Fuentes
left for the United States, passed the New York medical licensure
examinations, resided therein, and became a naturalized American citizen.
He died in New York in 2007. The laws of New York do not recognize
holographic wills or compulsory heirs.

[a] Can the holographic will of Dr. Fuentes be admitted to probate in the
Philippines? Why or why not? (3%)

[b] Assuming that the will is probated in the Philippines, can Jay validly insist
that he be given his legitime? Why or why not? (3%)

VII

Ramon Mayaman died intestate, leaving a net estate of P10,000,000.00.

Determine how much each heir will receive from the estate:

[a] If Ramon is survived by his wife, three full-blood brothers, two half-
brothers, and one nephew (the son of a deceased full-blood brother)?
Explain. (3%)

[b] If Ramon is survived by his wife, a half-sister, and three nephews (sons
of a deceased full-blood brother)? Explain. (3%)

VIII

Jude owned a building which he had leased to several tenants. Without

informing his tenants, Jude sold the building to Ildefonso. Thereafter, the
latter notified all the tenants that he is the new owner of the building.
Ildefonso ordered the tenants to vacate the premises within thirty (30) days
from notice because he had other plans for the building. The tenants refused
to vacate, insisting that they will only do so when the term of their lease
shall have expired. Is Ildefonso bound to respect the lease contracts between
Jude and his tenants? Explain your answer. (3%)

IX

Before migrating to Canada in 1992, the spouses Teodoro and Anita

entrusted all their legal papers and documents to their nephew, Atty. Tan.
Taking advantage of the situation, Atty. Tan forged a deed of sale, making it
appear that he had bought the couple’s property in Quezon City. In 2000, he
succeeded in obtaining a TCT over the property in his name. Subsequently,
Atty. Tan sold the same property to Luis, who built an auto repair shop on
the property. In 2004, Luis registered the deed of conveyance, and title over
the property was transferred in his name.

In 2006, the spouses Teodoro and Anita came to the Philippines for a visit
and discovered what had happened to their property. They immediately hire
you as lawyer. What action or actions will you institute in order to vindicate
their rights? Explain fully. (4%)

Rommel’s private car, while being driven by the regular family driver,
Amado, hits a pedestrian causing the latter’s death. Rommel is not in the car
when the incident happened.

[a] Is Rommel liable for damages to the heirs of the deceased? Explain. (2%)

[b] Would your answer be the same if Rommel was in the car at the time of
the accident? Explain. (2%)

*** END OF PART I ***

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PART II

XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the

statement is false. Explain your answer in not more than two (2) sentences.
(5%)

[a] A clause in an arbitration contract granting one of the parties the power
to choose more arbitrators than the other renders the arbitration contract
void.

[b] If there is no marriage settlement, the salary of a “spouse” in an

adulterous marriage belongs to the conjugal partnership of gains.

[c] Acquisitive prescription of a negative easement runs from the time the
owner of the dominant estate forbids, in a notarized document, the owner of
the servient estate from executing an act which would be lawful without the
easement.
[d] The renunciation by a co-owner of his undivided share in the co-owned
property in lieu of the performance of his obligation to contribute to taxes
and expenses for the preservation of the property constitutes dacion en
pago.

[e] A person can dispose of his corpse through an act inter vivos.

XII

Emmanuel and Margarita, American citizens and employees of the U.S. State
Department, got married in the African state of Kenya where sterility is a
ground for annulment of marriage. Thereafter, the spouses were assigned to
the U.S. Embassy in Manila. On the first year of the spouses’ tour of duty in
the Philippines, Margarita filed an annulment case against Emmanuel before
a Philippine court on the ground of her husband’s sterility at the time of the
celebration of the marriage.

[a] Will the suit prosper? Explain your answer. (3%)

[b] Assume Emmanuel and Margarita are both Filipinos. After their wedding
in Kenya, they come back and take up residence in the Philippines. Can their
marriage be annulled on the ground of Emmanuel’s sterility? Explain. (3%)

XIII

Rafael, a wealthy bachelor, filed a petition for the adoption of Dolly, a one-
year old foundling who had a severe heart ailment. During the pendency of
the adoption proceedings, Rafael died of natural causes. The Office of the
Solicitor General files a motion to dismiss the petition on the ground that the
case can no longer proceed because of the petitioner’s death.

[a] Should the case be dismissed? Explain. (2%)

[b] Will your answer be the same if it was Dolly who died during the
pendency of the adoption proceedings? Explain. (2%)

XIV

Rodolfo, married to Sharon, had an illicit affair with his secretary, Nanette, a
19-year old girl, and begot a baby girl, Rona. Nanette sued Rodolfo for
damages: actual, for hospital and other medical expenses in delivering the
child by caesarean section; moral, claiming that Rodolfo promised to marry
her, representing that he was single when, in fact, he was not; and
exemplary, to teach a lesson to like-minded Lotharios.

[a] If you were the judge, would you award all the claims of Nanette?
Explain. (3%)

[b] Suppose Rodolfo later on acknowledges Rona and gives her regular
support, can he compel her to use his surname? Why or why not? (2%)

[c] When Rona reaches seven (7) years old, she tells Rodolfo that she prefers
to live with him, because he is better off financially than Nanette. If Rodolfo
files an action for the custody of Rona, alleging that he is Rona’s choice as
custodial parent, will the court grant Rodolfo’s petition? Why or why not?
(2%)

XV

Sarah had a deposit in a savings account with Filipino Universal Bank in the
amount of five million pesos (P5,000,000.00). To buy a new car, she
obtained a loan from the same bank in the amount of P1,200,000.00,
payable in twelve monthly installments. Sarah issued in favor of the bank
post-dated checks, each in the amount of P100,000.00, to cover the twelve
monthly installment payments. On the third, fourth and fifth months, the
corresponding checks bounced.

The bank then declared the whole obligation due, and proceeded to deduct
the amount of one million pesos (P1,000,000.00) from Sarah’s deposit after
notice to her that this is a form of compensation allowed by law. Is the bank
correct? Explain. (4%)

XVI

Marciano is the owner of a parcel of land through which a river runs out into
the sea. The land had been brought under the Torrens System, and is
cultivated by Ulpiano and his family as farmworkers therein. Over the years,
the river has brought silt and sediment from its sources up in the mountains
and forests so that gradually the land owned by Marciano increased in area
by three hectares. Ulpiano built three huts on this additional area, where he
and his two married children live. On this same area, Ulpiano and his family
planted peanuts, monggo beans and vegetables. Ulpiano also regularly paid
taxes on the land, as shown by tax declarations, for over thirty years.

When Marciano learned of the increase in the size of the land, he ordered
Ulpiano to demolish the huts, and demanded that he be paid his share in the
proceeds of the harvest. Marciano claims that under the Civil Code, the
alluvium belongs to him as a registered riparian owner to whose land the
accretion attaches, and that his right is enforceable against the whole world.

[a] Is Marciano correct? Explain. (3%)

[b] What rights, if any, does Ulpiano have against Marciano? Explain. (3%)

XVII

Rosario obtained a loan of P100,000.00 from Jennifer, and pledged her

diamond ring. The contract signed by the parties stipulated that if Rosario is
unable to redeem the ring on due date, she will execute a document in favor
of Jennifer providing that the ring shall automatically be considered full
payment of the loan.

[a] Is the contract valid? Explain. (3%)

[b] Will your answer to [a] be the same if the contract stipulates that upon
failure of Rosario to redeem the ring on due date, Jennifer may immediately
sell the ring and appropriate the entire proceeds thereof for herself as full
payment of the loan? Reasons. (3%)

XVIII

The Ifugao Arms is a condominium project in Baguio City. A strong

earthquake occurred which left huge cracks in the outer walls of the building.
As a result, a number of condominium units were rendered unfit for use. May
Edwin, owner of one of the condominium units affected, legally sue for
partition by sale of the whole project? Explain. (4%)

XIX

In 1972, Luciano de la Cruz sold to Chua Chung Chun, a Chinese citizen, a

parcel of land in Binondo. Chua died in 1990, leaving behind his wife and
three children, one of whom, Julian, is a naturalized Filipino citizen. Six years
after Chua’s death, the heirs executed an extrajudicial settlement of estate,
and the parcel of land was allocated to Julian. In 2007, Luciano filed suit to
recover the land he sold to Chua, alleging that the sale was void because it
contravened the Constitution which prohibits the sale of private lands to
aliens. Julian moved to dismiss the suit on grounds of pari delicto, laches and
acquisitive prescription. Decide the case with reasons. (4%)

XX

[a] If Ligaya, a Filipino citizen residing in the United States, files a petition for
change of name before the District Court of New York, what law shall apply?
Explain. (2%)

[b] If Henry, an American citizen residing in the Philippines, files a petition

for change of name before a Philippine court, what law shall apply? Explain.
(2%)
*** END OF PART II *** RETURN THIS QUESTIONNAIRE WITH YOUR
BOOKLET

2009 BAR EXAMINATION QUESTION

TAXATION

13 September 2009 2 P.M. – 5 P.M.

INSTRUCTIONS

This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions
(numbered I to X), contained in six (6) pages; and Part II with ten (10)
questions (numbered XI-XX), contained in five (5) pages, for a total number
of eleven (11) pages.

Write your answers to Part I and Part II in the corresponding portions

indicated in the booklet.

Begin your answer to each numbered question on a separate page; an

answer to a subquestion under the same number may be written
continuously on the same page and succeeding pages until completed.

Answer the questions directly and concisely. Do not repeat the questions.
Write legibly.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.

GOOD LUCK!

ANTONIO EDUARDO B. NACHURA

CHAIRPERSON
2009 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS TWELVE (12) PAGES (INCLUDING
THIS PAGE).

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

PART I

I
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the
statement is false. Explain your answer in not more than two (2) sentences.
(5%)

[a] A law that allows taxes to be paid either in cash or in kind is valid.

[b] When the financial position of the taxpayer demonstrates a clear inability
to pay the tax, the Commissioner of Internal Revenue may validly
compromise the tax liability.

[c] The doctrine of equitable recoupment allows a taxpayer whose claim for
refund has prescribed to offset tax liabilities with his claim of overpayment.

[d] A law imposing a tax on income of religious institutions derived from the
sale of religious articles is valid.

[e] A false return and a fraudulent return are one and the same.

II

Enumerate the four (4) inherent limitations on taxation. Explain each item
briefly. (4%)

III

Melissa inherited from her father a 300-square-meter lot. At the time of her
father’s death on March 14, 1995, the property was valued at P720,000.00.
On February 28, 1996, to defray the cost of the medical expenses of her sick
son, she sold the lot for
P600,000.00, on cash basis. The prevailing market value of the property at
the time of the sale was P3,000.00 per square meter.

[a] Is Melissa liable to pay capital gains tax on the transaction? If so, how
much and why? If not, why not? (4%)

[b] Is Melissa liable to pay Value Added Tax (VAT) on the sale of the
property? If so, how much and why? If not, why not? (4%)

IV

International Technologies, Inc. (ITI) filed a claim for refund for unutilized
input VAT with the Court of Tax Appeals (CTA). In the course of the trial, ITI
engaged the services of an independent Certified Public Accountant (CPA)
who examined the voluminous invoices and receipts of ITI. ITI offered in
evidence only the summary prepared by the CPA, without the invoices and
the receipts, and then submitted the case for decision.
Can the CTA grant ITI’s claim for refund based only on the CPA’s summary?
Explain. (4%)

Jessie brought into the Philippines a foreign-made luxury car, and paid less
than the actual taxes and duties due. Due to the discrepancy, the Bureau of
Customs instituted seizure proceedings and issued a warrant of seizure and
detention. The car, then parked inside a pay parking garage, was seized and
brought by government agents to a government impounding facility. The
Collector of Customs denied Jessie’s request for the withdrawal of the
warrant.

Aggrieved, Jessie filed against the Collector a criminal complaint for

usurpation of judicial functions on the ground that only a judge may issue a
warrant of search and seizure.

[a] Resolve with reasons Jessie’s criminal complaint. (4%)

[b] Would your answer be the same if the luxury car was seized while parked
inside the garage of Jessie’s residence? Why or why not? (4%)

VI

The Sangguniang Bayan of the Municipality of Sampaloc, Quezon, passed an

ordinance imposing a storage fee of ten centavos (P0.10) for every 100 kilos
of copra deposited in any bodega within the Municipality’s jurisdiction. The
Metropolitan Manufacturing Corporation (MMC), with principal office in
Makati, is engaged in the manufacture of soap, edible oil, margarine, and
other coconut oil-based products. It has a warehouse in Sampaloc, Quezon,
used as storage space for the copra purchased in Sampaloc and nearby
towns before the same is shipped to Makati. MMC goes to court to challenge
the validity of the ordinance, demanding the refund of the storage fees it
paid under protest.

Is the ordinance valid? Explain your answer. (4%)

VII

Kenya International Airlines (KIA) is a foreign corporation, organized under

the laws of Kenya. It is not licensed to do business in the Philippines. Its
commercial airplanes do not operate within Philippine territory, or service
passengers embarking from Philippine airports. The firm is represented in the
Philippines by its general agent, Philippine Airlines (PAL), a Philippine
corporation.

KIA sells airplane tickets through PAL, and these tickets are serviced by KIA
airplanes outside the Philippines. The total sales of airline tickets transacted
by PAL for KIA in 1997 amounted to P2,968,156.00. The Commissioner of
Internal Revenue assessed KIA deficiency income taxes at the rate of 35%
on its taxable income, finding that KIA’s airline ticket sales constituted
income derived from sources within the Philippines.

KIA filed a protest on the ground that the P2,968,156.00 should be

considered as income derived exclusively from sources outside the
Philippines since KIA only serviced passengers outside Philippine territory.

Is the position of KIA tenable? Reasons. (4%)

VIII

The City of Manila enacted Ordinance No. 55-66 which imposes a municipal
occupation tax on persons practicing various professions in the city. Among
those subjected to the occupation tax were lawyers. Atty. Mariano Batas,
who has a law office in Manila, pays the ordinance-imposed occupation tax
under protest. He goes to court to assail the validity of the ordinance for
being discriminatory. Decide with reasons. (3%)

IX

Republic Power Corporation (RPC) is a government-owned and controlled

corporation engaged in the supply, generation and transmission of electric
power. In 2005, in order to provide electricity to Southern Tagalog provinces,
RPC entered into an agreement with Jethro Energy Corporation (JEC), for the
lease of JEC’s power barges which shall be berthed at the port of Batangas
City. The contract provides that JEC shall own the power barges and the
fixtures, fittings, machinery, and equipment therein, all of which JEC shall
supply at its own cost, and that JEC shall operate, manage and maintain the
power barges for the purpose of converting the fuel of RPC into electricity.
The contract also stipulates that all real estate taxes and assessments, rates
and other charges, in respect of the power barges, shall be for the account of
RPC.

In 2007, JEC received an assessment of real property taxes on the power

barges from the Assessor of Batangas City. JEC sought reconsideration of the
assessment on the ground that the power barges are exempt from real
estate taxes under Section 234 [c] of R.A. 7160 as they are actually, directly
and exclusively used by RPC, a government-owned and controlled
corporation. Furthermore, even assuming that the power barges are subject
to real property tax, RPC should be held liable therefor, in accordance with
the terms of the lease agreement.

Is the contention of JEC correct? Explain your answer. (4%)

ABCD Corporation (ABCD) is a domestic corporation with individual and

corporate shareholders who are residents of the United States. For the 2nd
quarter of 1983, these U.S.-based individual and corporate stockholders
received cash dividends from the corporation. The corresponding withholding
tax on dividend income --- 30% for individual and 35% for corporate non-
resident stockholders ---was deducted at source and remitted to the BIR.

On May 15, 1984, ABCD filed with the Commissioner of Internal Revenue a
formal claim for refund, alleging that under the RP-US Tax Treaty, the
deduction withheld at source as tax on dividends earned was fixed at 25% of
said income. Thus, ABCD asserted that it overpaid the withholding tax due on
the cash dividends given to its non-resident stockholders in the U.S. The
Commissioner denied the claim.

On January 17, 1985, ABCD filed a petition with the Court of Tax Appeals
(CTA) reiterating its demand for refund.

[a] Does ABCD Corporation have the legal personality to file the refund on
behalf of its non-resident stockholders? Why or why not? (3%)

[b] Is the contention of ABCD Corporation correct? Why or why not? (3%)

*** END OF PART I ***

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PART II

XI

Raffy and Wena, husband and wife, are both employed by XXX Corporation.
After office hours, they jointly manage a coffee shop at the ground floor of
their house. The coffee shop is registered in the name of both spouses.
Which of the following is the correct way to prepare their income tax return?
Write the letter only. DO NOT EXPLAIN YOUR ANSWER. (2%)

[a] Raffy will declare as his income the salaries of both spouses, while Wena
will declare the income from the coffee shop.

[b] Wena will declare the combined compensation income of the spouses,
and Raffy will declare the income from the coffee shop.

[c] All the income will be declared by Raffy alone, because only one
consolidated return is required to be filed by the spouses.

[d] Raffy will declare his own compensation income and Wena will declare
hers. The income from the coffee shop shall be equally divided between
them. Each spouse shall be taxed separately on their corresponding taxable
income to be covered by one consolidated return for the spouses.

[e] Raffy will declare his own compensation income and Wena will declare
hers. The income from the coffee shop shall be equally divided between
them. Raffy will file one income tax return to cover all the income of both
spouses, and the tax is computed on the aggregate taxable income of the
spouses.

XII

YYY Corporation engaged the services of the Manananggol Law Firm in 2006
to defend the corporation’s title over a property used in the business. For the
legal services rendered in 2007, the law firm billed the corporation only in
2008. The corporation duly paid.

YYY Corporation claimed this expense as a deduction from gross income in its
2008 return, because the exact amount of the expense was determined only
in 2008. Is YYY’s claim of deduction proper? Reasons. (4%)

XIII

In 1999, Xavier purchased from his friend, Yuri, a painting for P500,000.00.
The fair market value (FMV) of the painting at the time of the purchase was
P1-million. Yuri paid all the corresponding taxes on the transaction. In 2001,
Xavier died. In his last will and testament, Xavier bequeathed the painting,
already worth P1.5-million, to his only son, Zandro. The will also granted
Zandro the power to appoint his wife, Wilma, as successor to the painting in
the event of Zandro’s death. Zandro died in 2007, and Wilma succeeded to
the property.

[a] Should the painting be included in the gross estate of Xavier in 2001 and
thus, be subject to estate tax? Explain. (3%)

[b] Should the painting be included in the gross estate of Zandro in 2007 and
thus, be subject to estate tax? Explain. (3%)

[c] May a vanishing deduction be allowed in either or both of the estates?

Explain. (3%)

XIV

Emiliano Paupahan is engaged in the business of leasing out several

residential apartment units he owns. The monthly rental for each unit ranges
from P8,000.00 to P10,000.00. His gross rental income for one year is
P1,650,000.00. He consults you on whether it is necessary for him to register
as a VAT taxpayer. What legal advice will you give him, and why? (4%)

XV

Miguel, a citizen and resident of Mexico, donated US$1,000.00 worth of

stocks in Barack Motors Corporation, a Mexican company, to his legitimate
son, Miguelito, who is residing in the Philippines and about to be married to a
Filipino girlfriend. Mexico does not impose any transfer tax of whatever
nature on all gratuitous transfers of property.

[a] Is Miguel entitled to claim a dowry exclusion? Why or why not? (3%)

[b] Is Miguel entitled to the rule of reciprocity in order to be exempt from the
Philippine donor’s tax? Why or why not? (3%)

XVI

Ernesto, a Filipino citizen and a practicing lawyer, filed his income tax return
for 2007 claiming optional standard deductions. Realizing that he has enough
documents to substantiate his profession-connected expenses, he now plans
to file an amended income tax return for 2007, in order to claim itemized
deductions, since no audit has been commenced by the BIR on the return he
previously filed. Will Ernesto be allowed to amend his return? Why or why
not? (4%)

XVII

A final assessment notice was issued by the BIR on June 13, 2000, and
received by the taxpayer on June 15, 2000. The taxpayer protested the
assessment on July 31, 2000. The protest was initially given due course, but
was eventually denied by the Commissioner of Internal Revenue in a decision
dated June 15, 2005. The taxpayer then filed a petition for review with the
Court of Tax Appeals (CTA), but the CTA dismissed the same.

[a] Is the CTA correct in dismissing the petition for review? Explain your
answer. (4%)

[b] Assume that the CTA’s decision dismissing the petition for review has
become final. May the Commissioner legally enforce collection of the
delinquent tax? Explain. (4%)

XVIII

A taxpayer received an assessment notice from the BIR on February 3, 2009.

The following day, he filed a protest, in the form of a request for
reinvestigation, against the assessment and submitted all relevant
documents in support of the protest. On September 11, 2009, the taxpayer,
apprehensive because he had not yet received notice of a decision by the
Commissioner on his protest, sought your advice.

What remedy or remedies are available to the taxpayer? Explain. (4%)

XIX

Johnny transferred a valuable 10-door commercial apartment to a designated

trustee, Miriam, naming in the trust instrument Santino, Johnny’s 10-year
old son, as the sole beneficiary. The trustee is instructed to distribute the
yearly rentals amounting to P720,000.00. The trustee consults you if she has
to pay the annual income tax on the rentals received from the commercial
apartment.

[a] What advice will you give the trustee? Explain. (3%)

[b] Will your advice be the same if the trustee is directed to accumulate the
rental income and distribute the same only when the beneficiary reaches the
age of majority? Why or why not? (3%)

XX

Masarap Food Corporation (MFC) incurred substantial advertising expenses in

order to protect its brand franchise for one of its line products. In its income
tax return, MFC included the advertising expense as deduction from gross
income, claiming it as an ordinary business expense. Is MFC correct? Explain.
(3%)

*** END OF PART II ***

RETURN THIS QUESTIONNAIRE WITH YOUR BOOKLET

2009 BAR EXAMINATION QUESTION

CRIMINAL LAW

20 September 2009 2 P.M. – 5 P.M.

INSTRUCTIONS

This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions
(numbered I to X), contained in six (6) pages; and Part II with nine (9)
questions (numbered XI-XIX), contained in five (5) pages, for a total number
of eleven (11) pages.

Write your answers to Part I and Part II in the corresponding portions

indicated in the booklet.

Begin your answer to each numbered question on a separate page; an

answer to a subquestion under the same number may be written
continuously on the same page and succeeding pages until completed.

Answer the questions directly and concisely. Do not repeat the questions.
Write legibly.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.

GOOD LUCK!

ANTONIO EDUARDO B. NACHURA

CHAIRPERSON
2009 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS TWELVE (12) PAGES (INCLUDING
THIS PAGE).

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the

statement is false. Explain your answer in not more than two (2) sentences.
(5%)

[a] Amado, convicted of rape but granted an absolute pardon by the

President, and one year thereafter, convicted of homicide, is a recidivist.

[b] The creditor who resorts to forced labor of a child under the pretext of
reimbursing himself for the debt incurred by the child’s father commits the
crime of slavery.

[c] The use of an unlicensed firearm in homicide is considered a generic

aggravating circumstance which can be offset by an ordinary mitigating
circumstance.

[d] A person who, on the occasion of a robbery, kills a bystander by accident

is liable for two separate crimes: robbery and reckless imprudence resulting
in homicide.

[e] A policeman who, without a judicial order, enters a private house over
the owner’s opposition is guilty of trespass to dwelling.

II

Antero Makabayan was convicted of the crime of Rebellion. While serving

sentence, he escaped from jail. Captured, he was charged with, and
convicted of, Evasion of Service of Sentence. Thereafter, the President of the
Philippines issued an amnesty proclamation for the offense of Rebellion.
Antero applied for and was granted the benefit of the amnesty proclamation.

Antero then filed a petition for habeas corpus, praying for his immediate
release from confinement. He claims that the amnesty extends to the offense
of Evasion of Service of Sentence. As judge, will you grant the petition?
Discuss fully. (4%)

III

Rigoberto gate-crashed the 71st birthday party of Judge Lorenzo. Armed with
a piece of wood commonly known as dos por dos, Rigoberto hit Judge
Lorenzo on the back, causing the latter’s hospitalization for 30 days. Upon
investigation, it appeared that Rigoberto had a grudge against Judge Lorenzo
who, two years earlier, had cited Rigoberto in contempt and ordered his
imprisonment for three (3) days.

[a] Is Rigoberto guilty of Direct Assault? Why or why not? (3%)

[b] Would your answer be the same if the reason for the attack was that
when Judge Lorenzo was still a practicing lawyer ten years ago, he
prosecuted Rigoberto and succeeded in sending him to jail for one year?
Explain your answer. (3%)

IV

Charlie hated his classmate, Brad, because the latter was assiduously
courting Lily, Charlie’s girlfriend. Charlie went to a veterinarian and asked for
some poison on the pretext that it would be used to kill a very sick, old dog.
Actually, Charlie intended to use the poison on Brad.

The veterinarian mistakenly gave Charlie a non-toxic powder which, when

mixed with Brad’s food, did not kill Brad.

[a] Did Charlie commit any crime? If so, what and why? If not, why not?
(3%)

[b] Would your answer be the same if Brad proved to be allergic to the
powder, and after ingesting it with his food, fell ill and was hospitalized for
ten (10) days? Explain. (3%)

Ponciano borrowed Ruben’s gun, saying that he would use it to kill Freddie.
Because Ruben also resented Freddie, he readily lent his gun, but told
Ponciano: “O, pagkabaril mo kay Freddie, isauli mo kaagad, ha.” Later,
Ponciano killed Freddie, but used a knife because he did not want Freddie’s
neighbors to hear the gunshot.

[a] What, if any, is the liability of Ruben? Explain. (3%)

[b] Would your answer be the same if, instead of Freddie, it was Manuel, a
relative of Ruben, who was killed by Ponciano using Ruben’s gun? Explain.
(3%)

VI

Baldo killed Conrad in a dark corner, at midnight, on January 2, 1960.

Dominador witnessed the entire incident, but he was so scared to tell the
authorities about it.
On January 2, 1970, Dominador, bothered by his conscience, reported the
matter to the police. After investigation, the police finally arrested Baldo on
January 6, 1980. Charged in court, Baldo claims that the crime he committed
had already prescribed.

Is Baldo’s contention correct? Explain. (3%)

VII

Charina, Clerk of Court of an RTC Branch, promised the plaintiff in a case

pending before the court that she would convince the Presiding Judge to
decide the case in plaintiff’s favor. In consideration therefor, the plaintiff
gave Charina P20,000.00.

Charina was charged with violation of Section 3 (b) of Republic Act No. 3019,
prohibiting any public officer from directly or indirectly requesting or
receiving any gift, present, percentage, or benefit in connection with any
contract or transaction x x x wherein the public officer, in his official capacity,
has to intervene under the law.

While the case was being tried, the Ombudsman filed another information
against Charina for Indirect Bribery under the Revised Penal Code. Charina
demurred to the second information, claiming that she can no longer be
charged under the Revised Penal Code having been charged for the same act
under R.A. 3019.

Is Charina correct? Explain. (3%)

VIII

While Alfredo, Braulio, Ciriaco, and Domingo were robbing a bank, policemen
arrived. A firefight ensued between the bank robbers and the responding
policemen, and one of the policemen was killed.

[a] What crime or crimes, if any, had been committed? Explain. (3%)

[b] Suppose it was Alfredo who was killed by the responding policemen, what
charges can be filed against Braulio, Ciriaco and Domingo? Explain. (2%)

[c] Suppose in the course of the robbery, before the policemen arrived,
Braulio shot and killed Alfredo following a heated disagreement on who
should carry the money bags, what would be the criminal liability of Braulio,
Ciriaco and Domingo? Explain. (2%)

IX
Virgilio, armed with a gun, stopped a van along a major thoroughfare in
Manila, pointed the gun at the driver and shouted: “Tigil! Kidnap ito!”

Terrified, the driver, Juanito, stopped the van and allowed Virgilio to board.
Inside the van were Jeremias, a 6-year-old child, son of a multi-millionaire,
and Daday, the child’s nanny. Virgilio told Juanito to drive to a deserted
place, and there, ordered the driver to alight. Before Juanito was allowed to
go, Virgilio instructed him to tell Jeremias’ parents that unless they give a
ransom of P10-million within two (2) days, Jeremias would be beheaded.
Daday was told to remain in the van and take care of Jeremias until the
ransom is paid. Virgilio then drove the van to his safehouse.

What crime or crimes, if any, did Virgilio commit? Explain. (5%)

To secure the release of his brother Willy, a detention prisoner, and his
cousin Vincent, who is serving sentence for homicide, Chito asked the RTC
Branch Clerk of Court to issue an Order which would allow the two prisoners
to be brought out of jail. At first, the Clerk refused, but when Chito gave her
P50,000.00, she consented.

She then prepared an Order requiring the appearance in court of Willy and
Vincent, ostensibly as witnesses in a pending case. She forged the judge’s
signature, and delivered the Order to the jail warden who, in turn, allowed
Willy and Vincent to go out of jail in the company of an armed escort, Edwin.
Chito also gave Edwin P50,000.00 to leave the two inmates unguarded for
three minutes and provide them with an opportunity to escape. Thus, Willy
and Vincent were able to escape.

What crime or crimes, if any, had been committed by Chito, Willy, Vincent,
the Branch Clerk of Court, Edwin, and the jail warden? Explain your answer.
(5%)

*** END OF PART I ***

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PART II

XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the

statement is false. Explain your answer in not more than two (2) sentences.
(5%)

[a] Life imprisonment is a penalty more favorable to the convict than

reclusion perpetua.

[b] Voluntary surrender is a mitigating circumstance in all acts and omissions

punishable under the Revised Penal Code.

[c] In a prosecution for fencing under P.D. 1612, it is a complete defense for
the accused to prove that he had no knowledge that the goods or articles
found in his possession had been the subject of robbery.

[d] In the crime of libel, truth is an absolute defense.

[e] For a person who transacts an instrument representing the proceeds of a

covered unlawful activity to be liable under the Anti-Money Laundering Act
(R.A. 9160, as amended), it must be shown that he has knowledge of the
identities of the culprits involved in the commission of the predicate crimes.

XII

[a] In a conviction for homicide, the trial court appreciated two (2) mitigating
circumstances and one (1) aggravating circumstance. Homicide under Article
249 of the Revised Penal Code is punishable by reclusion temporal, an
imprisonment term of twelve (12) years and one (1) day to twenty (20)
years. Applying the Indeterminate Sentence Law, determine the appropriate
penalty to be imposed. Explain. (3%)

[b] Will your answer be the same if it is a conviction for illegal possession of
drugs under R.A. 9165 (Dangerous Drugs Act of 2002), the prescribed
penalty of which is also imprisonment for a term of twelve (12) years and
one (1) day to twenty (20) years? Why or why not? (3%)

XIII

Angelo devised a Ponzi Scheme in which 500 persons were deceived into
investing their money upon a promise of a capital return of 25%, computed
monthly, and guaranteed by post-dated checks. During the first two months
following the investment, the investors received their profits, but thereafter,
Angelo vanished.
Angelo was charged with 500 counts of estafa and 2,000 counts of violation
of Batas Pambansa (BP) 22. In his motion to quash, Angelo contends that he
committed a continued crime, or delito continuado, hence, he committed only
one count of estafa and one count of violation of BP 22.

[a] What is delito continuado? (1%)

[b] Is Angelo’s contention tenable? Explain. (4%)

XIV

Following his arrest after a valid buy-bust operation, Tommy was convicted
of violation of Section 5, Republic Act 9165. On appeal, Tommy questioned
the admissibility of the evidence because the police officers who conducted
the buy-bust operation failed to observe the requisite “chain of custody” of
the evidence confiscated and/or seized from him.

What is the “chain of custody” requirement in drug offenses? What is its

rationale? What is the effect of failure to observe the requirement? (3%)

XV

Joe was 17 years old when he committed homicide in 2005. The crime is
punishable by reclusion temporal. After two years in hiding, he was arrested
and appropriately charged in May 2007. Since Republic Act 9344 (Juvenile
Justice and Welfare Act of 2006) was already in effect, Joe moved to avail of
the process of intervention or diversion.

[a] What is intervention or diversion? Is Joe entitled to intervention or

diversion? Explain. (3%)

[b] Suppose Joe’s motion for intervention or diversion was denied, and he
was convicted two (2) years later when Joe was already 21 years old, should
the judge apply the suspension of sentence? Explain. (2%)

[c] Suppose Joe was convicted of attempted murder with a special

aggravating circumstance and was denied suspension of sentence, would he
be eligible for probation under Presidential Decree (PD) 968, considering that
the death penalty is imposable for the consummated felony? Explain. (2%)

XVI

Roger and Jessie, Municipal Mayor and Treasurer, respectively, of San Rafael,
Leyte, caused the disbursement of public funds allocated for their local
development programs for 2008. Records show that the amount of P2-million
was purportedly used as financial assistance for a rice production livelihood
project. Upon investigation, however, it was found that Roger and Jessie
falsified the disbursement vouchers and supporting documents in order to
make it appear that qualified recipients who, in fact, are non-existent
individuals, received the money.

Roger and Jessie are charged with malversation through falsification and
violation of Section 3 (e) of R.A. 3019 for causing undue injury to the
government. Discuss the propriety of the charges filed against Roger and
Jessie. Explain. (4%)

XVII

Wenceslao and Loretta were staying in the same boarding house, occupying
different rooms. One late evening, when everyone in the house was asleep,
Wenceslao entered Loretta’s room with the use of a picklock. Then, with force
and violence, Wenceslao ravished Loretta. After he had satisfied his lust,
Wenceslao stabbed Loretta to death and, before leaving the room, took her
jewelry.

[a] What crime or crimes, if any, did Wenceslao commit? Explain. (4%)

[b] Discuss the applicability of the relevant aggravating circumstances of

dwelling, nocturnity and the use of the picklock to enter the room of the
victim. (3%)

[c] Would your answer to [a] be the same if, despite the serious stab wounds
she sustained, Loretta survived? Explain. (3%)

XVIII

At the Maligaya Disco Club, Leoncio and Evelyn were intimately dancing a
very seductive dance number. While gyrating with their bodies, Leoncio
dipped his private parts in Evelyn’s buttocks. Incensed, Evelyn protested, but
Leoncio continued and tightly embraced her.

[a] What crime or crimes, if any, did Leoncio commit? Explain. (3%)

[b] Would your answer be the same if, even after the music had stopped,
Leoncio continued to dance dirty, rubbing his private parts on Evelyn’s
buttocks? Explain. (3%)

XIX

Delmo learned that his enemy, Oscar, was confined at the Intensive Care
Unit (ICU) of the Philippine Medical Center. Intending to kill Oscar, Delmo
disguised himself as a nurse, entered the ICU, and saw a man lying on the
hospital bed with several life-saving tubes attached to the body. Delmo
disconnected the tubes and left. Later, the resident physician doing his
rounds entered the ICU and, seeing the disconnected tubes, replaced them.
The patient survived. It turned out that the patient was Larry, as Oscar had
been discharged from the hospital earlier.

Delmo was charged with frustrated murder, qualified by evident

premeditation and treachery as aggravating circumstances. Discuss the
propriety of the charge. (4%)

*** END OF PART II ***

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