In his six-page complaint filed before the Office of the Ombudsman on March 17, 2014, Othello E. Dalanon said Henares and Sales should be charged with violation of Republic Act 3019 or the Anti-Graft and Corrupt Practices Act for their alleged grave misconduct and gross neglect of duty after "deliberately" not collecting said tax deficiency from GDI.
He also said the two BIR officials should be charged with violation of the National Internal Revenue Code (NIRC), particularly Section 269 (e) neglecting or by design permitting the violation of the law by any other person and 269 (h) having knowledge or information of any violation of this Code or of any fraud committed on the revenues collectible by the BIR, failure to report such knowledge or information to their superior officer, or failure to report as otherwise required by law.
Dalanon, who was assigned to the BIR's National Investigation Division but resigned in June 2013 after 28 years of service "because of the irregularities I discovered," said that he had conducted a probe on GDI's 2007 financial records in 2008 and found out alleged discrepancies in the firm's declared sales and tax returns.
GDI is owned by the Prieto family, whose officers include Marixi Rufino-Prieto, chairperson of the Philippine Daily Inquirer.
According to Dalanon, GDI's registered books of accounts showed that its net income for 2007 was P135.3 million while its annual income tax return (AITR) reflected a net loss income of P44.9 million. He said the books, however, showed that its sales amounted to P1.93 billion but the amount declared in its AITR was only P1.03 billion, or an underdeclaration of P897.2 million.
He said that based on other "independent" documents such as Franchise Agreement Technical Service Agreement and Final Withholding Tax Remittance Returns, GDI's sales even reached P2.37 billion but the amount recorded in its registered books was only P1.93 billion or an unrecorded and undeclared sales was P438.1 million.
Using these records on GDI's sales and tax returns, Dalanon said he had assessed the company's alleged tax deficiency and found out that the firm still owed the government P1,564,426,808.08, including surcharges and interests.
Dalanon said the tax deficiency assessment became "final, executory, (and) demandable," after it was covered by final letter of demand and final assessment notices (FANS), all dated October 29, 2010.
While the GDI questioned the FANS, Dalanon claimed that the firm "failed to to submit the required documents in support of its protest."
Dalanaon said the GDI is given a 60-day period to submit to the BIR documents to support its protest, based on Revenue Regulation No. 12-99 in relation to Section 228 of the NIRC.
The 60-day period ended on January 29, 2011, but the GDI submitted its documents only on March 24, 2011, according to Dalanon.
He said that even if GDI was able to submit the supporting documents within the prescribed period and an reinvestigation was warranted, the reinvestigation should have ended on July 30, 2011, the corresponding final decision on the disputed assessment and notice of collection would have been issued.
"But BIR did not, and GDI also did not file its petition in Court within 30 days from July 30, 2011 or until August 29, 2011," said Dalanon.
He said that Section 228 of the NIRC states that, "If the protest is denied in whole or in part, or is not acted upon within 180 days from submission of documents, the taxpayer adversely affected by by the decision or inaction may appeal to the Court of Tax Appeals within 30 days from receipt of the said decision, or from the lapse of the 180-day period; otherwise, the decision shall become final, executory, and demandable."
'Refused to act'
Dalanon said he had reported the case to Henares in October 2010 and recommended to the BIR chief to file tax evasion charges against GDI under the commission's Run After Tax Evaders program. Dalanon said the BIR later referred the case to Sales, "who refused to act appropriately on the irregularity discovered".
Also, Dalanon said that from September 13, 2012 to November 28, 2013, he had sent six e-mails and letters to Henares to remind her of the "same findings." He said his last two letters to the BIR chief were coursed through Sen. Francis Escudero and the Department of Finance.
"It is apparent that targets set by the Bureau have not been met to great prejudice of the Filipino people for reasons such as the instant case," Dalanon said in his complaint. Taxes due from large taxpayers are deliberately not being collected by the respondents," Dalanon said in his complaint.
Dalanon asked the Ombudsman's office to place Henares and Sales under preventive suspension "immediately so as to prevent tempering of original records, which are relevant to the prosecution of this case, as well as prevent them from influencing subordinates who could shed light on this documented irregularity."
In an earlier interview with InterAksyon.com, Henares denied Dalanon's accusations. The BIR chief said Dalanon had erred in his assessment. The BIR chief said GDI had the right to contest the "very high" initial assessment, adding that the company should be given the chance to be re-assessed of its tax dues.
The BIR commissioner said she had GDI's tax dues assesed twice by two different assesors, and their findings were the same that the initial assessment was wrong. "Ang problema sa kanya [Dalanon], mali 'yong assessment n'ya. Pina-re-assess ko na 'yan, dalawang beses sa magkaibang assesor, pareho sila ng findings na mali ang initial assessment," the BIR chief said.
On the criminal and administrative complaint that Dalanon filed against her, Henares said she could defend her stand on the case.
In his complaint, Dalanon claimed Henares wasn't authorized by law to carry our re-investigations on final tax assessments.
"Henares herself acknowledged through various public interviews that she has knowledge of the irregularity and that she has ordered 'two reinvestigations,' a discretion not given her by any law, of the final and executory assessment."
Before he filed the complaint, Dalanon sought President Benigno Aquino III's intervention, urging the chief executive to push the BIR to collect the tax deficiency.
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