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The Manila Times : Marcos' failure to file income tax returns is not a crime involving moral turpitude

News & Interviews
23 November 2021

By Antonio Contreras | The Manila Times

I AM not tolerating former senator and now presidential candidate Ferdinand Marcos Jr.'s failure to file his income tax returns (ITRs) for four consecutive years from 1982 to 1985. As a requirement of the law, he was found guilty. As a voter, it doesn't have to be a crime of moral turpitude for me to take issue with it, and count it against his candidacy.

After all, all of us who earn fixed incomes know that while our taxes are automatically withheld from our salaries and as such, we cannot be accused of evading the payment of taxes, we still need to file our ITRs. ITRs are, in fact, already prepared for us, and all we need to do is to affix our signatures and return them to our respective finance offices for mass filing with the Bureau of Internal Revenue.

However, I do not agree that Marcos should not be allowed to run for president because he committed and was convicted of tax evasion, which is a crime that involves moral turpitude. It is incorrect to argue that he was convicted of tax evasion. Facts and the law do not support this claim.

In terms of facts, it is not denied that the income taxes which Marcos owed the government were already withheld. Thus, taxes were already paid. His only deficiency was that he failed to file the necessary accompanying ITRs. While the lower court convicted him for tax evasion, such was reversed upon appeal by the Court of Appeals, and he was only meted a fine for his failure to file those ITRs.

In terms of law, even the Supreme Court ruled in G.R. 130371 and G.R. 130855, which are separate cases but also involve Marcos, that his offense of failing to file an ITR is not a crime of moral turpitude. The high court was very clear in its ruling when it said: "Therefore, since respondent Ferdinand Marcos II has appealed his conviction relating to four violations of Section 45 of the NIRC, the same should not serve as a basis to disqualify him to be appointed as an executor of the will of his father. More importantly, even assuming that his conviction is later on affirmed, the same is still insufficient to disqualify him as the 'failure to file an income tax return' is not a crime involving moral turpitude."

Retired Senior Associate Justice Antonio Carpio suggested, as quoted from a Vera Files report, that the claim that non-filing of ITRs is not a crime involving moral turpitude was an incidental remark "since the Court in the same case admitted that the conviction of Marcos Jr. was then still under appeal." However, Carpio's insinuation that such statement was merely an obiter dictum, or something mentioned by the court as an incidental expression of opinion, not essential to the decision and not establishing precedent, is belied by the court asserting in G.R 130371 and G.R. 130855 that even if the finding of guilt is affirmed, it will not change the fact that failure to file an income tax return does not rise to the level of being a crime involving moral turpitude.

There are also arguments that allege that the Court of Appeals erred in reversing Marcos' original conviction for tax evasion by the regional trial court, and for merely meting out the penalty of a fine, when the law stipulates that a prison term should also have been imposed. This is important in the push to delist Marcos from the roster of official candidates for president for the 2022 elections, since one of the disqualifying circumstances for any candidate is when he or she is found guilty of a crime involving imprisonment of at least 18 months.

Granting without admitting that the CA erred in its decision, but such was already final and the penalty of fine was already paid. Marcos was found guilty of his failure to file his ITR which the Supreme Court has already stated to be an act that does not rise to the level of being a crime involving moral turpitude. He was not given a prison sentence.

There are also those who raise Section 286 of the revised National Internal Revenue Code (NIRC), or PD 1994 issued in November1985, which stipulates that a person found guilty of committing a tax-related crime who is also a public officer or employee, shall suffer the maximum penalty prescribed, which is dismissal from public service and perpetual disqualification from holding any public office, from voting and from participating in any election. However, it is a fact that while perpetual disqualification is an accessory penalty for tax-related cases under PD 1994, any penalty should nevertheless be clearly spelled out in the dispositive portion of any decision. The penalty, while available, was not imposed by the CA on Marcos in his tax case.

The petition to cancel Marcos' certificate of candidacy (CoC) does not stand on legal or constitutional grounds if its purpose is to re-litigate his non-filing of ITRs. Decisions of courts, unless reversed on appeal or automatic review, are deemed legal and binding. Once the penalty is served, they can no longer be re-litigated in any other court for it would violate the double jeopardy rule which is also provided for in the Constitution. The Commission on Elections does not have the authority or the jurisdiction to reverse the decision of the Court of Appeals. In fact, even the Supreme Court would be barred from reversing a ruling whose penalty has already been served. When this petition reaches the high court, what will only be decided is whether Marcos committed material misrepresentation in his CoC, or that he possesses disqualifying attributes as listed in the Omnibus Election Code. The court can no longer review, or even reverse, the CA decision on his tax case, even if it may have been flawed.