J.A.B. Bulao & Associates

LEGAL NOTE 0095: DOCUMENTARY STAMP TAX ON CERTIFICATES OF DEPOSIT AND SPECIAL  ACCOUNTS PLUS AND SIMILAR BANK ACCOUNT

SOURCE: PRUDENTIAL BANK VS. COMMISSIONER OF INTERNAL REVENUE (G.R. NO. 180390, 27 JULY 2011, DEL CASTILLO, J.) SUBJECT: DOCUMENTARY STAMP TAX (BRIEF TITLE: PRUDENTIAL BANK VS. BIR)

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SUBJECT/DOCTRINE/DIGEST:

IS DOCUMENTARY STAMPT TAX APPLICABLE TO CERTIFICATES OF DEPOSITS?

YES. IT IS PAYABLE ON CERTIFICATES OF DEPOSIT BEARING INTEREST AND CERTIFICATES OF DEPOSITS DRAWING INTEREST.

DST is imposed on certificates of deposit bearing interest pursuant to Section 180 of the old NIRC, as amended, to wit:

Sec. 180.  Stamp tax on all loan agreements, promissory notes, bills of exchange, drafts, instruments and securities issued by the government or any of its instrumentalities, certificates of deposit bearing interest and others not payable on sight or demand. – On all loan agreements signed abroad wherein the object of the contract is located or used in the Philippines; bills of exchange (between points within the Philippines), drafts, instruments and securities issued by the Government or any of its instrumentalities or certificates of deposits drawing interest, or orders for the payment of any sum of money otherwise than at the sight or on demand, or on all promissory notes, whether negotiable or non-negotiable, except bank notes issued for circulation, and on each renewal of any such note, there shall be collected a documentary stamp tax of Thirty centavos (P0.30) on each Two hundred pesos, or fractional part thereof, of the face value of any such agreement, bill of exchange, draft, certificate of deposit, or note: Provided, That only one documentary stamp tax shall be imposed on either loan agreement, or promissory note issued to secure such loan, whichever will yield a higher tax: provided, however, that loan agreements or promissory notes the aggregate of which does not exceed Two hundred fifty thousand pesos (P250,000.00) executed by an individual for his purchase on installment for his personal use or that of his family and not for business, resale, barter or hire of a house, lot, motor vehicle, appliance or furniture shall be exempt from the payment of the documentary stamp tax provided under this section. (Emphasis supplied.)

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WHAT IS CERTIFICATE OF DEPOSIT?

A certificate of deposit is defined as “a written acknowledgment by a bank or banker of the receipt of a sum of money on deposit which the bank or banker promises to pay to the depositor, to the order of the depositor, or to some other person or his order, whereby the relation of debtor and creditor between the bank and the depositor is created.”^[1][34] 

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PETITIONER ARGUES THAT  SPECIAL ACCOUNTS PLUS (SAP) IS NOT A  CERTIFICATE OF DEPOSIT BECAUSE IT IS PAYABLE ON DEMAND. IS THIS ARGUMENT CORRECT.

NO.  WHILE IT IS PAYABLE ON DEMAND,  THE AMOUNT OF INTEREST IS REDUCED AND/OR SUBJECT TO PENALTIES. THERE IS A PERIOD STIPULATED FOR HIGHER INTEREST. PRECEDENT RULINGS EXIST.

In this case, petitioner claims that its SAP is not a certificate of deposit bearing interest because unlike a time deposit, its SAP is payable on demand and is evidenced by a passbook and not by a certificate of deposit.

We do not agree.

In China Banking Corporation v. Commissioner of Internal Revenue,^[2][35] we held that the Savings Plus Deposit Account, which has the following features:

1.     Amount deposited is withdrawable anytime;

2.     The same is evidenced by a passbook;

3.     The rate of interest offered is the prevailing market rate, provided the depositor would maintain his minimum balance in thirty (30) days at the minimum, and should he withdraw before the period, his deposit would earn the regular savings deposit rate;

is subject to DST as it is essentially the same as the Special/Super Savings Deposit Account in Philippine Banking Corporation v. Commissioner of Internal Revenue,^[3][36] and the Savings Account-Fixed Savings Deposit in International Exchange Bank v. Commissioner of Internal Revenue,^[4][37] which are considered certificates of deposit drawing interests.^[5][38]

Similarly, in this case, although the money deposited in a SAP is payable anytime, the withdrawal of the money before the expiration of 30 days results in the reduction of the interest rate.^[6][39]  In the same way, a time deposit withdrawn before its maturity results to a lower interest rate and payment of bank charges or penalties.^[7][40]

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BUT SAP (SPECIAL ACCOUNTS PLUS) IS EVIDENCED BY A PASSBOOK AND NOT A CERTIFICATE OF DEPOSIT. IS IT STILL SUBJECT TO DST?

YES. A DOCUMENT TO BE CONSIDERED A CERTIFICATE OF DEPOSIT NEED NOT BE IN A SPECIFIC FORM.^[8][41] THUS, A PASSBOOK ISSUED BY A BANK QUALIFIES AS A CERTIFICATE OF DEPOSIT DRAWING INTEREST BECAUSE IT IS CONSIDERED A WRITTEN ACKNOWLEDGEMENT BY A BANK THAT IT HAS ACCEPTED A DEPOSIT OF A SUM OF MONEY FROM A DEPOSITOR.^[9][42]

The fact that the SAP is evidenced by a passbook likewise cannot remove its coverage from Section 180 of the old NIRC, as amended. A document to be considered a certificate of deposit need not be in a specific form.^[10][41] Thus, a passbook issued by a bank qualifies as a certificate of deposit drawing interest because it is considered a written acknowledgement by a bank that it has accepted a deposit of a sum of money from a depositor.^[11][42] 

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Republic of thePhilippines

Supreme Court

Manila

FIRST DIVISION

x – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x

D E C I S I O N

DEL CASTILLO, J.:

A certificate of deposit need not be in a specific form; thus, a passbook of an interest-earning deposit account issued by a bank is a certificate of deposit drawing interest.^[12][1]

            This Petition for Review on Certiorari^[13][2] under Rule 45 of the Rules of Court assails the Decision^[14][3] dated March 30, 2007 and the Resolution^[15][4] dated October 30, 2007 of the Court of Tax Appeals (CTA) in CTA EB No. 185.

Factual Antecedents

Petitioner Prudential Bank^[16][5] is a banking corporation organized and existing under Philippine law.^[17][6]  On July 23, 1999, petitioner received from the respondent Commissioner of Internal Revenue (CIR) a Final Assessment Notice No. ST-DST-95-0042-99 and a Demand Letter for deficiency Documentary Stamp Tax (DST) for the taxable year 1995 on its Repurchase Agreement with the Bangko Sentral ng Pilipinas [BSP], Purchase of Treasury Bills from the BSP, and on its Savings Account Plus [SAP] product, in the amount of P18,982,734.38, broken down as follows:

a.             Repurchase Agreement — BSP Seller

Basic       1,656,000,000.00 x .30                      P2,484,000.00

                                200

Add:       25% Surcharge                                           621,000.00

Compromise Penalty                                    25,000.00                      P3,130,000.00

b.             Purchase of [Treasury] Bills from BSP

Basic       5,038,610,000.00 x .30                      P7,557,915.00

                                200

Add:       25% Surcharge                                       1,889,478.75

                Compromise Penalty                                   25,000.00                       P9,472,393.75

c.             Savings Account Plus (page 1307 of the docket)

Basic       3,389,515,000.00 x .30                      P5,084,272.50

                                200

Add:       25% Surcharge                                       1,271,068.13

                Compromise Penalty                                   25,000.00                       P6,380,340.63

GRAND TOTAL                                                                                           P18,982,734.38^[18][7]

Petitioner protested the assessment on the ground that the documents subject matter of the assessment are not subject to DST.^[19][8]  However, respondent denied^[20][9] the protest on December 28, 2001.

Thus, petitioner filed a Petition for Review before the CTA which was raffled to its First Division and docketed as CTA Case No. 6396.^[21][10] 

Ruling of the First Division of the Court of Tax Appeals

On February 10, 2006, the First Division of the CTA affirmed the assessment for deficiency DST insofar as the SAP is concerned, but cancelled and set aside the assessment on petitioner’s repurchase agreement and purchase of treasury bills^[22][11] with the BSP.  Thus, it disposed of the case as follows:

WHEREFORE, the instant petition is hereby PARTIALLY GRANTED. The subject Decision of the Commissioner of Internal Revenue dated December 28, 2001 assessing petitioner of deficiency documentary stamp taxes is hereby AFFIRMED insofar as the Savings Account Plus is concerned. The deficiency assessment on petitioner’s repurchase agreements and treasury bills are hereby CANCELLED and SET ASIDE.

Accordingly, petitioner is hereby ORDERED TO PAY respondent the reduced amount of P6,355,340.63 plus 20% delinquency interest from August 23, 1999 up to the time such amount is fully paid pursuant to Section 249 (c) of the [old] NIRC, as amended, covered by Assessment Notice No. ST-DST-95-0042-99 as deficiency documentary stamp tax for the taxable year 1995, recomputed as follows:

Savings Account Plus                       P5,084,272.50

Add: 25% Surcharge                             1,271,068.13

TOTAL                                                P6,355,340.63

SO ORDERED.^[23][12]

Petitioner moved for partial reconsideration but the same was denied by the First Division of the CTA in its Resolution dated May 22, 2006.^[24][13]

Thus, petitioner appealed to the CTA En Banc.

Ruling of the Court of Tax Appeals En Banc

On March 30, 2007, the CTA En Banc denied the appeal for lack of merit.   It affirmed the ruling of its First Division that petitioner’s SAP is a certificate of deposit bearing interest subject to DST under Section 180 of the old National Internal Revenue Code (NIRC), as amended by Republic Act (RA) No. 7660.^[25][14]

Petitioner sought reconsideration but later moved to withdraw the same in view of its availment of the Improved Voluntary Assessment Program (IVAP) pursuant to Revenue Regulation (RR) No. 18-2006^[26][15] in relation to RR No. 15-2006^[27][16] and Revenue Memorandum Order (RMO) No. 23-2006.^[28][17]

On October 30, 2007, the CTA En Banc rendered a Resolution^[29][18] denying petitioner’s motion to withdraw for non-compliance with the requirements for abatement.  It found that the amount paid for purposes of the abatement program was not in accordance with Revenue Memorandum Circular (RMC) No. 66-2006,^[30][19] which provides that the amount to be paid should be based on the original assessment or the court’s decision, whichever is higher.^[31][20]  It also noted that petitioner failed to comply with RMO No. 23-2006, specifically with the requirement to submit the letter of termination and authority to cancel assessment signed by the respondent.^[32][21]  In the same Resolution, the CTA En Banc denied petitioner’s motion for reconsideration for lack of merit.^[33][22]

Issues

Hence, the present recourse by petitioner raising the following issues:

I.

WHETHER X X X PETITIONER’S [SAP] WITH A HIGHER INTEREST IS SUBJECT TO DOCUMENTARY STAMP TAX.

II.

WHETHER X X X THE CTA EN BANC ERRED IN NOT ALLOWING THE WITHDRAWAL OF THE PETITION AND/OR CANCELLATION OF THE DST ASSESSMENT ON PETITIONER’S [SAP] ON THE GROUND THAT PETITIONER HAD ALREADY PAID AND SUBSTANTIALLY COMPLIED WITH RR NO. 15-2006 AND RMO NO. 23-2006.^[34][23]

Petitioner’s Arguments

Petitioner contends that its SAP is not subject to DST because it is not included in the list of documents under Section 180 of the old NIRC, as amended.^[35][24]  Petitioner insists that unlike a time deposit, its SAP is evidenced by a passbook and not by a deposit certificate.^[36][25]  In addition, its SAP is payable on demand and not on a fixed determinable future.^[37][26] To support its position, petitioner relies on the legislative intent of the law prior to Republic Act (RA) No. 9243^[38][27] and the historical background of the taxability of certificates of deposit.^[39][28] 

Petitioner further contends that even assuming that its SAP is subject to DST, the CTA En Banc nonetheless erred in denying petitioner’s withdrawal of its petition considering that it has paid under the IVAP the amount of P5,084,272.50, which it claims is 100% of the basic tax of the original assessment of the Bureau of Internal Revenue (BIR).^[40][29]  Petitioner insists that the payment it made should be deemed substantial compliance considering the refusal of the respondent to issue the letter of termination and authority to cancel assessment.^[41][30]

Respondent’s Arguments

Respondent maintains that petitioner’s SAP is subject to DST conformably with the ruling in International Exchange Bank v. Commissioner of Internal Revenue.^[42][31]  It also contends that the CTA En Banc correctly denied the motion to withdraw since petitioner failed to comply with the requirements of the IVAP.^[43][32]  Mere payment of the deficiency DST cannot be deemed substantial compliance as tax amnesty, like tax exemption, must be construed strictly against the taxpayer.^[44][33]

Our Ruling

The petition lacks merit.

Petitioner’s Savings Account Plus is subject to Documentary Stamp Tax.

DST is imposed on certificates of deposit bearing interest pursuant to Section 180 of the old NIRC, as amended, to wit:

Sec. 180.  Stamp tax on all loan agreements, promissory notes, bills of exchange, drafts, instruments and securities issued by the government or any of its instrumentalities, certificates of deposit bearing interest and others not payable on sight or demand. – On all loan agreements signed abroad wherein the object of the contract is located or used in the Philippines; bills of exchange (between points within the Philippines), drafts, instruments and securities issued by the Government or any of its instrumentalities or certificates of deposits drawing interest, or orders for the payment of any sum of money otherwise than at the sight or on demand, or on all promissory notes, whether negotiable or non-negotiable, except bank notes issued for circulation, and on each renewal of any such note, there shall be collected a documentary stamp tax of Thirty centavos (P0.30) on each Two hundred pesos, or fractional part thereof, of the face value of any such agreement, bill of exchange, draft, certificate of deposit, or note: Provided, That only one documentary stamp tax shall be imposed on either loan agreement, or promissory note issued to secure such loan, whichever will yield a higher tax: provided, however, that loan agreements or promissory notes the aggregate of which does not exceed Two hundred fifty thousand pesos (P250,000.00) executed by an individual for his purchase on installment for his personal use or that of his family and not for business, resale, barter or hire of a house, lot, motor vehicle, appliance or furniture shall be exempt from the payment of the documentary stamp tax provided under this section. (Emphasis supplied.)

A certificate of deposit is defined as “a written acknowledgment by a bank or banker of the receipt of a sum of money on deposit which the bank or banker promises to pay to the depositor, to the order of the depositor, or to some other person or his order, whereby the relation of debtor and creditor between the bank and the depositor is created.”^[45][34] 

In this case, petitioner claims that its SAP is not a certificate of deposit bearing interest because unlike a time deposit, its SAP is payable on demand and is evidenced by a passbook and not by a certificate of deposit.

We do not agree.

In China Banking Corporation v. Commissioner of Internal Revenue,^[46][35] we held that the Savings Plus Deposit Account, which has the following features:

1.     Amount deposited is withdrawable anytime;

2.     The same is evidenced by a passbook;

3.     The rate of interest offered is the prevailing market rate, provided the depositor would maintain his minimum balance in thirty (30) days at the minimum, and should he withdraw before the period, his deposit would earn the regular savings deposit rate;

is subject to DST as it is essentially the same as the Special/Super Savings Deposit Account in Philippine Banking Corporation v. Commissioner of Internal Revenue,^[47][36] and the Savings Account-Fixed Savings Deposit in International Exchange Bank v. Commissioner of Internal Revenue,^[48][37] which are considered certificates of deposit drawing interests.^[49][38]

Similarly, in this case, although the money deposited in a SAP is payable anytime, the withdrawal of the money before the expiration of 30 days results in the reduction of the interest rate.^[50][39]  In the same way, a time deposit withdrawn before its maturity results to a lower interest rate and payment of bank charges or penalties.^[51][40]

The fact that the SAP is evidenced by a passbook likewise cannot remove its coverage from Section 180 of the old NIRC, as amended. A document to be considered a certificate of deposit need not be in a specific form.^[52][41] Thus, a passbook issued by a bank qualifies as a certificate of deposit drawing interest because it is considered a written acknowledgement by a bank that it has accepted a deposit of a sum of money from a depositor.^[53][42] 

In view of the foregoing, we find that the CTA En Banc correctly affirmed the ruling of its First Division that petitioner’s SAP is a certificate of deposit bearing interest and that the same is subject to DST.

The CTA En Banc’s denial of petitioner’s motion to withdraw is proper.

The  CTA En Banc denied petitioner’s motion to withdraw because it failed

to show that it was able to comply with the requirements of IVAP.

To avail of the IVAP, a taxpayer must pay the 100% basic tax of the original assessment of the BIR or the CTA Decision, whichever is higher^[54][43] and submit the letter of termination and authority to cancel assessment signed by the respondent.^[55][44]  In this case, petitioner failed to submit the letter of termination and authority to cancel assessment as respondent found the payment of P5,084,272.50 not in accordance with RMC No. 66-2006.  Hence, we find no error on the part of the CTA En Banc in denying petitioner’s motion to withdraw.

Petitioner’s payment of P5,084,272.50, without the supporting documents, cannot be deemed substantial compliance as tax amnesty must be construed strictly against the taxpayer and liberally in favor of the taxing authority.^[56][45] Nevertheless, the amount of P5,084,272.50 paid by petitioner to the BIR must be considered as partial payment of petitioner’s tax liability.

WHEREFORE, the petition is hereby DENIED.  The assailed Decision dated March 30, 2007 and the Resolution dated October 30, 2007 of the Court of Tax Appeals in CTA EB No. 185 are hereby AFFIRMED with MODIFICATION that petitioner Prudential Bank’s payment be considered as partial payment of its tax liability.

            SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson

MARTIN S. VILLARAMA, JR.

Associate Justice

C E R T I F I C A T I O N

            Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

Chief Justice

LEGAL NOTE 0094: THE MANDATORY CHARACTER OF PRE-TRIAL.

SOURCE: NATIONAL POWER CORPORATION, REPRESENTED BY ITS PRESIDENT CYRIL DEL CALLAR VS.  JUDGE SANTOS B. ADIONG, RTC, BRANCH 8, MARAWI CITY (A.M. NO. RTJ-07-2060, 27 JULY 2011, VILLARAMA, J.) SUBJECT: ADMININSTRATIVE CASE AGAINST A JUDGE. (BRIEF TITLE: NPC VS. JUDGE ADIONG)

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IS THE CONDUCT OF PRE-TRIAL CONFERENCE MANDATORY?

YES. THE COURT IMPOSED THE PENALTY OF SUSPENSION ON A JUDGE WHO MERELY FAILED TO ISSUE A PRE-TRIAL ORDER WITHIN TEN (10) DAYS AFTER THE TERMINATION OF THE PRE-TRIAL CONFERENCE AS MANDATED BY PARAGRAPH 8,^[1][28] TITLE I (A) OF A.M. NO. 03-1-09-SC.

The mandatory character of pre-trial is embodied in Administrative Circular No. 3-99^[2][23] dated January 15, 1999, and found its way in Section 2,^[3][24] Rule 18 of the Rules of Court, which imposes a duty upon the plaintiff to promptly move ex parte that the case be set for pre-trial.  To further implement the pre-trial guidelines, this directive was reiterated in Administrative Matter No. 03-1-09-SC^[4][25] entitled “Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures” which recognized the importance of pre-trial and the deposition-discovery measures as vital components of case management in trial courts.^[5][26] 

To further show that the Court is serious in implementing the rules on pre-trial, in Alviola v. Avelino^[6][27] the Court imposed the penalty of suspension on a judge who merely failed to issue a pre-trial order within ten (10) days after the termination of the pre-trial conference as mandated by Paragraph 8,^[7][28] Title I (A) of A.M. No. 03-1-09-SC. 

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FIRST DIVISION

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DECISION

VILLARAMA, JR., J.:

Before us is an administrative complaint^[8][1] filed by the National Power Corporation (NPC) through its president Cyril C. Del Callar, charging respondent Judge Santos B. Adiong, Presiding Judge of the Regional Trial Court (RTC), Branch 8, Marawi City, with gross ignorance of the law, manifest partiality and conduct unbecoming a member of the Judiciary. 

The complaint arose in connection with the following cases:

1. Civil Case No. 1918-03 entitled “Ibrahim Abdo, et al. v. National Power Corporation” for Damages;

1. Civil Case No. 1322-95 entitled “Pacalna Sanggacala v. National Power Corporation” for Damages;

1. Civil Case No 1332-95 entitled “Ali Macaraya Mato v. National Power Corporation” for Damages;

1. Civil Case No. 1367-95 entitled “Camar Dipatuan v. National Power Corporation” for Damages;

1. Civil Case No. 1361-95 entitled “Casimra Sultan v. National Power Corporation” for Damages; and

1. Civil Case No. 1355-95 entitled “Mualam Dimatingcal v. National Power Corporation” for Damages.

In Civil Case No. 1918-03, plaintiffs Ibrahim Abdo, et al. who styled themselves as a “group of farmers, fishermen, laborers, workers, vendors, household members, and businessmen”, collectively sought to hold NPC liable for damages for operating seven Hydroelectric Power plants allegedly without due regard to the health and safety of the plaintiffs and other residents of Marawi City and the province of Lanao del Sur.  The plaintiffs alleged that they and several others suffered ecological and economic disasters brought about by the operation of regulatory dams which affected the natural flow of LakeLanaoand destroyed their farms, properties, businesses and sources of livelihood.  In addition to damages, the plaintiffs also sought the refund of millions of pesos from the Purchase Power Adjustment (PPA) collected by NPC from its electric consumers through the Lanao Del Sur Electric Cooperative.^[9][2]

On October 21, 2003, said plaintiffs filed an ex-parte Motion for the Release of P640,000,000 worth of PPA and other generation charges.  Judge Adiong granted the motion on November 9, 2004, but later set aside his order on November 24, 2005^[10][3] after NPC filed a motion for reconsideration on the ground of lack of notice and due process.  Judge Adiong then required the parties to present their respective evidence onDecember 8, 2005. 

Subsequently, Judge Adiong issued a Resolution on February 28, 2006, ordering NPC to refund the amount of P114,000,000, representing the Fuel Compensating Cost, Foreign Exchange, and Incremental Cost Charges collected from April 1991 to December 1995; to refund the amount of P176,000,000, representing the Fuel and Power Cost Adjustment and PPA collected from January 1996 to April 2003; and to pay the amount of P97,537,000 as attorney’s fees.^[11][4] 

NPC sought reconsideration of the order alleging that no pre-trial was conducted and yet respondent judge already passed upon the merits of the case.  NPC’s motion, however, was denied by Judge Adiong.  Judge Adiong reasoned that before issuing the questioned resolution, full-blown hearings were conducted and NPC was afforded all the opportunities to present its evidence and to participate actively in the hearings.  Having done so, NPC has submitted itself to the court’s jurisdiction and could no longer claim that no pre-trial was conducted.  Later, Judge Adiong also directed Sheriff Otto Gomampong to implement the February 28, 2006 Resolution ratiocinating that the same has already become final.^[12][5] 

Thus, NPC filed the present administrative complaint, asserting that the issuance of the February 28, 2006 Resolution is contrary to and violative of the Rules of Court because said resolution was issued by respondent judge without first conducting the requisite pre-trial conference and despite the fact that no formal offer of exhibits was made by plaintiffs in support of their allegations.  Also, NPC complains of respondent judge’s failure to lay down the basis for granting the plaintiff’s ex-parte motion to release the PPA refunds, and in awarding the exorbitant amount of P97,537,000.00 as attorney’s fees.^[13][6]

NPC further states that while it admits that judges are not to be administratively charged for acts committed in the exercise of their judicial functions, respondent judge had acted in violation of elementary rules that was equivalent to intolerable and inexcusable gross ignorance of the law.

As regards Civil Case Nos. 1322-95, 1332-95, 1367-95, 1361-95, and 1355-95, said cases involve identical causes of action arising from the same facts and raising common issues.  The plaintiffs in said cases sought to hold NPC liable for damages for its refusal to open the Agus regulation dams causing perennial flooding on their rice farmlands in 1979, 1984, 1986, 1989, 1993, 1994, 1995 and 1996.  In all of these cases, respondent judge rendered judgments in favor of the plaintiffs.  Later, respondent judge also issued Joint Special Order^[14][7] dated January 25, 2006 granting the Joint Motion for the Issuance of the Writ of Execution Pending Appeal^[15][8] filed by the plaintiffs in Civil Case Nos. 1367-95, 1361-95, and 1355-95 on January 2, 2006.^[16][9] 

A similar Order^[17][10] granting execution pending appeal was likewise issued in the two other cases, Civil Case Nos. 1322-95 and 1332-95, on January 17, 2006.  Nine days later, on January 26, 2006, a Joint Writ of Execution^[18][11] for the two cases was issued.

NPC alleges that Judge Adiong’s act of granting execution pending appeal failed to conform strictly to the rigid criteria outlined by jurisprudence for executions pending appeal.  There was no special reason for the issuance of the writ, and the grant of the writ was whimsical and clearly manifested the partiality of respondent judge.  Further, Judge Adiong’s evident bias and unexplained interest to execute the decisions manifested when he immediately set for hearing a motion to cite in contempt a Land Bank personnel who allegedly refused to comply with the notice of garnishment despite the fact that the motion lacked the required notice of hearing and the failure of the plaintiffs to comply with Rule 71 of the Rules of Court.^[19][12]  

In his Comment^[20][13] dated June 1, 2006, respondent judge raised the following in his defense.  With regard to the lack of pre-trial conference, respondent judge asserts that he has set the case for hearing on December 8 and 15, 2005, and January 12, 13, and 27, 2006.  In all these hearings, the parties were allowed to present whatever evidence they had to support their claims.  He also claims that the lack of pre-trial was never raised by NPC since the time it filed its answer on May 15, 2003 up to the time plaintiffs started presenting their evidence on December 8, 2005.  It was only on February 14, 2006 that NPC belatedly filed a manifestation calling the court’s attention to the lack of pre-trial, without formally asking or praying for the setting of one.  In addition, the records show that the plaintiffs filed their pre-trial brief while defendant NPC did not.  Thus, he argues that NPC is deemed to have waived the holding of a pre-trial conference.  Perforce, Judge Adiong argues that he should not be held administratively liable for not conducting pre-trial.^[21][14]

On the charge that he was biased and has unexplained interest to execute the Decisions in Civil Case Nos. 1322-95, 1332-95, 1367-95, 1361-95 and 1355-95, respondent judge denied the allegations and explained that he complied with the requirements for allowing an execution pending appeal.  He asserts there was good reason for its issuance and there was evidence substantiating the need to issue the writ of execution which were clearly spelled out and stated in the Special Orders dated January 17, 2006and January 25, 2006.  Further, there is no reason to complain about the bank personnel being held for contempt, as said bank personnel was not even adjudged guilty of contempt.^[22][15]

Respondent judge adds that he should be absolved from the charges against him.  He argues that mere suspicion that a judge is partial to one of the parties to the case is not enough; there should be evidence to support the charge.^[23][16]  Also, he asserts that a judge cannot be held administratively liable for errors in the appreciation of evidence unless the errors are gross or made in bad faith.^[24][17]  When such errors of judgment are committed, complainants may avail themselves of the remedy of appeal or certiorari and not the filing of administrative charges against the judge who rendered the challenged decision. 

On October 2, 2007, this Court referred the present complaint to the Court of Appeals, Cagayan De Oro City, for investigation, report and recommendation.  Pursuant to the Rules of Court, now retired Associate Justice Ruben C. Ayson, to whom this case was assigned, sent notices to the parties informing them of the schedule of investigation and hearings.  The case was heard for five days, fromMay 25 to 29, 2009, and the parties were required to present oral, as well as documentary evidence in support of their respective allegations and counter-allegations.

On July 10, 2009, Justice Ayson submitted his report finding respondent judge administratively liable.  Justice Ayson did not delve into the correctness of the Resolution dated February 28, 2006, granting the refund of millions of pesos representing the PPA charges, as the resolution is now the subject of an appeal with this Court, docketed as G.R. No. 177288 entitled, Ibrahim Abdo, et al. v. Court of Appeals and National Power Corporation.  Neither did he delve into the merits of all the other cases from which the administrative cases filed by NPC against Judge Adiong arose, for the reason that the proper venue for their review would be through the usual judicial process of review by appellate courts.^[25][18]   

The Investigating Justice also noted the well-entrenched rule that a judge may not be held administratively liable for every erroneous decision he renders, for no person called upon to determine the facts or interpret the law in the administration of justice can be infallible.  However, he also noted that there is a prominent exception to the rule, that is, when the law is so elementary that not to know it constitutes gross ignorance of the law.^[26][19]  In said cases, a judge committing such error may face administrative sanctions. 

Specifically, Justice Ayson noted that in Civil Case No. 1918-03, Judge Adiong failed to conduct a pre-trial conference and erred in conducting the series of hearings in the case without determining the existence of necessary pre-conditions before the court could take cognizance of the case. Records revealed that Judge Adiong failed to resolve (1) the issue on the insufficiency of the complaint as a class suit; (2) the issue of nonpayment of docket fees necessary to vest the court with jurisdiction over the case; (3) the issue on forum-shopping allegedly committed by therein plaintiffs; and (4) the question regarding the alleged failure of therein plaintiffs to state with particularity their respective residences.  Justice Ayson noted that without a proper resolution of these threshold jurisdictional questions, any decision in the case is premature and without factual and legal basis.  In other words, the court would only be engaged in a useless exercise and would merely be wasting the time and resources of the parties.^[27][20]

Further, the Investigating Justice stressed that the conduct of a pre-trial is mandatory.  He explained that pre-trial is a procedural device whereby the court is called upon to compel the parties and their lawyers to appear before it and negotiate an amicable settlement or otherwise make a formal statement and embody in a single document the issues of fact and law involved in the action. Respondent judge asserts that NPC only called the attention of the court in passing in one of its hearings held sometime inDecember 8, 2005andJanuary 27, 2006.  Judge Adiong alleges that he then advised NPC to file the appropriate pleading, but it was only after the case was terminated that NPC made a manifestation on the lack of pre-trial.  Judge Adiong adds that the conduct of a pre-trial conference would have been a mere superfluity, and claims that the absence of pre-trial did not cause substantial prejudice or injury to the parties as the purpose of expediting the proceedings has been attained.  However, Justice Ayson opined that under the circumstances, Judge Adiong should have scheduled the case for pre-trial as he was already aware of the procedural defect.  His act of not minding the setting of pre-trial, when he had every opportunity and reasonable time to do so, can be characterized as negligent and imprudent, according to Justice Ayson.  Justice Ayson added that respondent judge apparently failed to comply with the rules and failed to exercise the required initiative to set the case for pre-trial. Considering Judge Adiong’s long years of service, a total of thirty-nine (39) years in the Judiciary, more than anyone else, he should be presumed to be conversant with the law and the rules.  The law involved in this case being elementary, failure to consider it or to act as if he does not know it, constitutes gross ignorance of the law. Justice Ayson said,

x x x Indeed, when the inefficiency springs from a failure to consider so basic and elemental a rule, a law or a principle in the discharge of his duties, a judge is either too incompetent and undeserving of the position and the title he holds or is too vicious that the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority.^[28][21]

As to the granting of the motions for execution pending appeal, Justice Ayson pointed out that respondent judge gave flimsy and unsupported reasons to support his order to issue the writ of execution pending appeal.

In Civil Case No. 1367-95, respondent judge granted the execution pending appeal on the ground that the plaintiff therein suffered a stroke and allegedly needed to undergo an operation costing millions of pesos.  However, said allegations were based only on the self-serving testimony of the plaintiff’s sister whose testimony was uncorroborated by any other evidence. 

In Civil Case Nos. 1361-95 and 1355-95, Judge Adiong granted the motion for execution pending appeal based on the testimony of the plaintiff who testified on his medical condition as stated in his medical certificate.  Said medical certificate, however, was never verified by the doctor who allegedly issued it.  Hence, it was unreliable and was merely hearsay evidence.

Meanwhile, in Civil Case No. 1322-95, the motion for execution pending appeal was granted based on the plaintiff’s claim that he is getting old and needed money to support his family of four wives and twenty-nine (29) children.  But the plaintiff’s allegation was not corroborated by any competent evidence. 

In all these cases, respondent judge found justification that the financial conditions of the plaintiffs warranted the issuance of the writ of execution pending appeal.  Justice Ayson, however, opined that while the power to grant or deny immediate or advance execution is addressed to the sound discretion of the court, it is required that good reason exists for granting execution pending appeal as provided under Section 2,^[29][22] Rule 39 of the Rules of Court.  Absent any such good reason, the special order of execution must be struck down for having been issued with grave abuse of discretion. 

Standing alone, the alleged dire financial distress of the plaintiffs in Civil Case Nos. 1918-03, 1322-95, 1332-95, 1367-95, 1361-95, 1355-95 cannot be taken as “good reason” for the immediate execution of respondent judge’s decisions, according to Justice Ayson.  Justice Ayson opined that indeed, when respondent judge acted hastily in granting the execution of his Decision pending appeal, his actuation did not indicate zeal to his duty but a clear disservice to the cause of justice.  Indubitably, respondent judge showed poor judgment and gross ignorance of basic legal principles, added Justice Ayson.

After careful review of the records of this case, we find the above observations and findings of the Investigating Justice well taken.

Judge Adiong failed to conduct a pre-trial conference in Civil Case No. 1918-03 contrary to elementary rules of procedure which he should have known all too well considering his long years of service in the bench.  The mandatory character of pre-trial is embodied in Administrative Circular No. 3-99^[30][23] dated January 15, 1999, and found its way in Section 2,^[31][24] Rule 18 of the Rules of Court, which imposes a duty upon the plaintiff to promptly move ex parte that the case be set for pre-trial.  To further implement the pre-trial guidelines, this directive was reiterated in Administrative Matter No. 03-1-09-SC^[32][25] entitled “Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures” which recognized the importance of pre-trial and the deposition-discovery measures as vital components of case management in trial courts.^[33][26] 

To further show that the Court is serious in implementing the rules on pre-trial, in Alviola v. Avelino^[34][27] the Court imposed the penalty of suspension on a judge who merely failed to issue a pre-trial order within ten (10) days after the termination of the pre-trial conference as mandated by Paragraph 8,^[35][28] Title I (A) of A.M. No. 03-1-09-SC. 

Here, respondent judge failed to conduct the pre-trial conference itself.  It is elementary and plain that the holding of such a pre-trial conference is mandatory and failure to do so is inexcusable. When the law or procedure is so elementary, such as the provisions of the Rules of Court, not to know it or to act as if one does not know it constitutes gross ignorance of the law.^[36][29]  Such ignorance of a basic rule in court procedure, as failing to conduct pre-trial, sadly amounts to gross ignorance and warrants a corresponding penalty. 

As to the allegations of poor judgment and gross ignorance of basic legal principles in granting the motions for execution pending appeal for flimsy and unsupported reasons, we find that the particular reasons relied upon by respondent judge for issuing the writ of execution pending appeal are so unreliably weak and feeble that it highlights the lack of knowledge of respondent judge with regard to the proper appreciation of arguments.

In Florendo v. Paramount Insurance Corp.,^[37][30] the Supreme Court held: 

            x x x “Good reasons,” it has been held, consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. The circumstances must be superior, outweighing the injury or damages that might result should the losing party secure a reversal of the judgment. Lesser reasons would make of execution pending appeal, instead of an instrument of solicitude and justice, a tool of oppression and inequity.

“Good reason” as required by Section 2, Rule 39 of the Rules of Court does not necessarily mean unassailable and flawless basis but at the very least, it must be on solid footing.   Dire financial conditions of the plaintiffs supported by mere self-serving statements as “good reason” for the issuance of a writ of execution pending appeal does not stand on solid footing.  It does not even stand on its own.

Section 8, Rule 140 of the Rules of Court, as amended, classifies gross ignorance of the law as a serious charge and Section 11 thereof penalizes it with any of the following sanctions:

1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, That the forfeiture of benefits shall in no case include accrued leave credits;

2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or

3. Afine of more than P20,000[.00] but not exceeding P40,000.00.^[38][31]

Considering, however, that in A.M. No. RTJ-04-1826, this Court has already dismissed Judge Adiong, the penalties of suspension from office without salary and dismissal from the service are no longer possible.  Hence, the penalty of fine is more appropriate.

WHEREFORE, the now dismissed respondent Judge Santos B. Adiong of the Regional Trial Court of Marawi City, Branch 8 is, for gross ignorance of the law, FINED in the amount of P40,000.00 to be deducted from his retained/withheld accrued leave credits. 

SO ORDERED.