Did the TRAIN law extinguish the crime of Bongbong Marcos?


There is a fatal flaw in Marcos Jr.’s defense.

In the memorandum of December 17, 2021 that he submitted to the second chamber of the electoral commission, Ferdinand R. Marcos Jr. argues that the law requiring the filing of income tax returns (RTI) has been repealed by the TRAIN law of 2018 insofar as with regard to employees receiving purely compensatory income. In short, Marcos Jr. claims that under the TRAIN Act, those who receive purely compensatory income, which is already subject to withholding tax, are no longer required to finalize an RTI after the end of the year. civil.

More specifically, Marcos Jr. cites article 51-A of the Tax Code, as amended by the TRAIN law, which provides:

SECOND. 51-A. Substitute filing of income tax returns by employees receiving only compensation income. – Individual taxpayers receiving purely compensatory income, regardless of the amount, from a single employer in the Philippines for the calendar year, whose income tax has been properly withheld by said employer (tax due is equal to the tax withheld) will not be required to report an annual income tax return. The withholding certificate filed by the respective employers, duly stamped “received” by the BIR, will be equivalent to the production of income tax returns by said employees.

Marcos Jr. thus concludes in his memorandum: “It therefore follows that the non-payment of annual income tax returns by simple paid employees is no longer punishable under the NIRC of 1997, as amended. by train “.

Marcos Jr. now invokes Article 22 of the revised Criminal Code, which expressly states that the repeal of a criminal law has retroactive effect if it is favorable to the accused or the convicted person. Thus, Marcos Jr. claims that the repeal under the TRAIN Act should be retroactive to the years 1982 to 1985 when he did not file his ITRs and for which he was condemned by the courts. The effect of such retroactivity would be to extinguish his crime and his penalties.

There is, however, a fatal flaw in this defense of Marcos Jr. The non-requirement to file an ITR under Section 51-A of the Tax Code expressly refers to a situation where the employee has failed. “Only one employer in the Philippines for the calendar year.” This is further made very clear in Section 51-A (2) (b): “The following natural persons will not be required to file an income tax return: xxx) (1), from these sources in the Philippines, from which income tax has been properly withheld under the provisions of Article 79 of this Code: Provided that an individual who receives remuneration simultaneously from two or more employers at any time during the tax year must file an income tax return; xxx. “

So, if an employee has two or more employers at any time during the calendar year, they still have to file their ITRs at the end of the calendar year. From 1982 to 1985, Marcos Jr. was an employee of the provincial government of Ilocos Norte, first as deputy governor, then in 1985 as governor. However, Securities and Exchange Commission records reveal that Marcos Jr. served, from early 1985, as chairman of the board of directors of the Philippine Communications Satellite Corporation or Philcomsat. As president of Philcomsat, Marcos Jr. was paid a salary. Marcos Jr. actually had two employers in 1985, which clearly made Section 51-A of the Tax Code inapplicable to him. Consequently, Marcos Jr. cannot invoke Article 22 of the Revised Penal Code since Article 51-A of the Tax Code is not applicable to him.

For the calendar year 1985, Marcos Jr., being both a public and private sector employee, was still required by law to file his ITR. His failure to do so constituted a criminal offense under the Tax Code. Article 253 (c) of the Tax Code provides that if the offender is “a public official or employee, the maximum penalty prescribed for the offense shall be imposed and, in addition, he shall be removed from the public service and perpetually disqualified from exercising any public office, to vote and participate in any election.Rappler.com

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