tax evasion

[OPINION] There is a way to collect the P203-B Marcos estate tax debt

Renato Bautista Jr.
[OPINION] There is a way to collect the P203-B Marcos estate tax debt
'All hope is not lost thanks to the judicial remedy of mandamus'

The modern political adage that elections have consequences finds resonance with the election of President Ferdinand “Bongbong” Marcos Jr., in connection with the unpaid estate tax (now estimated at more than P203 billion due to penalties and interests) on the estate of the late strongman Ferdinand Marcos. The Filipinos, at least those who did not vote for Bongbong, must have realized already to their dismay that the humongous Marcos estate tax could no longer be collected as soon as the younger Marcos was proclaimed winner of the last presidential elections.

All hope is not lost, however, thanks to the judicial remedy of mandamus. Mandamus, a Latin word, is an order from a court commanding an inferior court or person to perform a legal duty. The Rules of Civil Procedure, Rule 65, Section 3 in pertinent part states that “when any…officer…unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office…and there is no other plain, speedy, and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court…praying that judgment be rendered commanding the respondent…to do the act required to be done…”

For more than two decades after the Philippine Supreme Court declared with finality the validity of the assessment of estate tax on the Marcos estate, the Marcos heirs have continuously refused to pay the tax. And the Bureau of Internal Revenue (BIR) has not lifted a finger since 1993, other than sending demand letters, to collect this due and demandable tax. With Bongbong as president, there is all the more reason for the BIR, which is an agency under the president’s control, not to collect the tax. In fact, Benjamin Diokno, finance chief and the BIR commissioner’s boss, said it will be up to the courts to decide the Marcos estate tax issue. In short, do nothing about it unless the courts say so.

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All these circumstances, especially the fact that the estate tax liability of the Marcos heirs (except perhaps whether it is now over P203 billion from its original amount of P23 billion) is no longer in dispute, make it abundantly clear that the courts can compel the BIR commissioner to collect the Marcos estate tax through a writ of mandamus.

All elements for the issuance of the writ are present, namely (1) the BIR has a clear legal, ministerial duty to collect the tax that has long become due and demandable; (2) the BIR has neglected the collection of the tax; and (3) there is no other plain, speedy, and adequate remedy but to compel the BIR, given its neglect and failure to collect the tax for several years.

The writ of mandamus is the most efficacious remedy against government inaction and neglect. For example, mandamus compelled the MMDA to clean, rehabilitate, and protect Manila Bay after its officers refused to act on the petition of concerned citizens in Metropolitan Manila Development Authority, et al., v. Concerned Residents of Manila Bay, et al.; mandamus ordered the Civil Service Commission to disclose the civil service eligibilities of certain persons appointed to the Cebu City Health Department after denying the petitioner’s right to information on matters of public concern in Legaspi v. Civil Service Commission; so also, mandamus made the Commission on Elections disclose the preparations it was undertaking for the May 2010 elections in Guingona, et la., v. Comelec; mandamus forced the Municipal Mayor of Aliaga, Nueva Ecija to remove illegal structures on a road shoulder after the mayor and his officials repeatedly refused to implement a court decision ordering the removal of such structures in Mayor Marcial Vargas, et al., v. Cajucom.

Any Filipino citizen has the legal standing to file the mandamus petition as an aggrieved party because the purpose of the suit is to enforce a public right, which is the right of the people to have their public officials faithfully discharge the duties of their office. The Supreme Court has recognized this legal standing of citizens when the object of the mandamus is to demand the enforcement of a public duty and the assertion of a public right. Citizens who possess the right being demanded acquire personal interest in the lawsuit as held in the landmark 1985 case of Tañada v. Tuvera and in the more recent Akabayan Citizens Action Party v. Aquino.

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It is important that the mandamus suit be filed by December 1, 2026, before the five-year statute of limitations sets in, counting from December 2, 2021, when the BIR last sent a demand letter to the Marcos heirs. Failure of the BIR to do any action to collect the tax within the five-year period will forever foreclose the government’s right to collect the Marcos estate tax.

To be sure, the Marcos heirs, not least of them President Bongbong, will vigorously oppose this petition. Needless to say, it would be a sad irony for the sitting president to oppose such a petition, let alone evade payment of his family’s estate tax liability as he has done so for several years as co-administrator of his father’s estate. How can a president whose chief function is to enforce the laws of the land, which includes collection of taxes, have the moral authority to enjoin the people to pay taxes if he himself does not pay?

When Lilia Guillermo, after being appointed by President Bongbong as BIR commissioner, was asked during a media interview about what she would tell the President on the Marcos estate tax liability, the tax chief said she will respectfully ask the President, “P’wede ba maging role model kayo? (Can you be a role model?)” It is doubtful if she ever asked this question, but one thing is for sure, she will not do anything to antagonize her boss, unless the courts force her hands. – Rappler.com

Renato Y. Bautista Jr. has been a practicing attorney for more than 20 years. He is currently working as a Philippine law consultant at the Los Angeles-based Filipino Law Group, a law firm that handles tax and estate settlement cases involving Filipinos in the US with properties in the Philippines.

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