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ESTATE TAX Changes under TRAIN Law

by Lorna Patajo-Kapunan

ON December 19, 2017, package 1 of the Tax Reform for Acceleration and Inclusion (TRAIN), otherwise known as Republic Act (RA) 10963, was signed into law.

The law made several amendments to the National Internal Revenue Code of 1997 (Tax Code), specifically on personal-income taxation, passive income, estate tax, donor’s tax, value-added tax, excise tax and documentary stamp tax. The law took effect on January 1, following its complete publication in the official gazette. Below is a brief discussion of the changes under estate taxation under the Train law.

I. Amendment of the Estate Tax Rate

Section 22 of the TRAIN law amends Section 84 of the Tax Code, which provides for the estate-tax rate. Previously, a tax based on the value of the net estate of the decedent, whether resident or nonresident of the Philippines, was computed based on a tax schedule where an estate worth P200,000 and over was taxed from 5 percent to 20 percent. Under the TRAIN law, it will now be subject to a flat rate of 6 percent.

II. Amendments on Estate Tax Deductions

Section 23 of the TRAIN law amends Section 86 of the Tax Code, which provides for the computation of the net estate or, effectively, the deductions allowed to the gross estate of an individual.

The TRAIN law removes funeral expenses, judicial expenses and medical expenses as allowable deductions.

Instead, the law increases the Standard Deduction to P5 million, which previously only amounted to P1 million. Only available to citizens (resident or nonresident) and resident aliens, TRAIN law now provides that nonresident aliens can avail themselves of a standard deduction, although only up to P500,000.

Another TRAIN law significant change from the old tax rule is that now, family homes that are worth up to P10 million will be exempted from estate tax. Previously, only family homes worth P1 million are exempted.

III. Amendments on the Procedure for Estate Tax Settlement

A. Repeal of Filing of Notice of Death provision

Section 24 of the TRAIN law repeals Section 89 of the Tax Code. The repealed provision provides for when a notice of death should be filed and the period to file the same.

B. Amendment on Filing of Estate Tax Return

Section 25 of the TRAIN law amends Section 90 of the Tax Code, which provides for the procedural requirements for the estate-tax return.

The TRAIN law requires that estate-tax returns showing a gross value exceeding P5 million must be certified by a certified public accountant. This is P3 million higher than the old tax rule, which only required CPA certifications for estate-tax returns that exceed a gross value of P2 million. The TRAIN law has also increased the period for filing of estate-tax returns from six months from the decedent’s death to one year.

C. Amendment of Payment of Estate Tax by Installment

Section 26 of the TRAIN law amends Section 91(c) of the Tax Code, which provides for the payment of estate tax by installment.

Under the TRAIN law, payment by installment has been particularly simplified. However, the law has provided for an implied limitation of two years for the payment of the full estate-tax liability, which was previously not contained in the old tax rule.

IV. Amendment on Withdrawals from Deceased’s Bank Account

Section 27 of TRAIN Law amends Section 97 of the Tax Code, which concerns allowable withdrawals from the deceased person’s account.

Under the old Tax Rule, only withdrawals up to P20,000 are allowed. The administrator of the estate or any one of the heirs may, when authorized by the commissioner, withdraw an amount not exceeding P20,000. However, the Train Law has increased allowable withdrawals from the deceased person’s account to any amount, subject to a 6-percent final withholding tax.

The amendments on estate taxes were enacted with the end in view of enticing the heirs to declare the real value of their deceased kin’s estate and to pay the proper estate tax.  Filing requirements have also been made simpler and filer-friendly. It remains to be seen whether collection of estate taxes will improve.

But, as the saying goes, “You can bring the horse to the water, but you cannot force the horse to drink!”

High Court drives the last nail in the coffin of Maria Clara

By: The Manila Times, Editorial

Published on February 23, 2018

It was destined to happen, like an augury from a tarot card. But who would have thought that it would be the Supreme Court that would drive the last nail in the coffin of Maria Clara as the symbol of Filipino womanhood?

And who could have expected that the nail would come in the form of a ruling on a rape case?

The recent Supreme Court ruling compels study because it is surprisingly blunt in its language, unsparing in its findings and gratuitous in its dig at Maria Clara.

In ruling on the case that was raised from the regional court to the Court of Appeals to the highest court, the Supreme Court acquitted Juvy Amarela and Junard Racho of the charge of rape. It reversed and set aside a conviction of the two accused by the Davao City regional trial court in June 2012, which was upheld by the Court of Appeals in February 2016.

The court said in the 20-page decision in January penned by Associate Justice Samuel Martires: “Today, we simply cannot be stuck to the Maria Clara stereotype of a demure and reserved Filipino woman. We should stay away from such mindset and accept the realities of a woman’s dynamic role in society today; she who has over the years transformed into a strong and confidently intelligent and beautiful person, willing to fight for her rights…

“More often than not, where the alleged victim survives to tell her story of sexual depredation, rape cases are solely decided based on the credibility of the testimony of the private complainant.”

The Supreme Court in this recent case seems to disregard what it established in the 1960 rape case of a certain Herminigilda Domingo as the “women’s honor” doctrine.

The latest ruling said: “We have hinged on the impression that no young Filipina of decent repute would publicly admit that she was sexually abused, unless that is the truth, for it is her natural instinct to protect her honor. However, this misconception, particularly in this day and age, not only puts the accused at an unfair disadvantage, but creates a travesty of justice.”

The court found inconsistencies in the complainant’s testimony. It said: “Her claim that she was forcibly brought to a makeshift stage, stripped and then raped, seems unrealistic and beyond human experience.”

And then it said: “We cannot rule out the probability that she had sex that night. Moreover, the absence of bruises [after, as] she said, she was punched, reinforces the theory that the victim may have had consensual intercourse.”

The court makes plain that it does not believe that the idea of a young Filipino woman as a Maria Clara is still tenable. The image – reserved, virtuous, idealized – is frayed. Millennials do not recognize themselves in her.

It was once fancied in this country that Maria Clara, as Jose Rizal’s creation in Noli me Tangere based on his real-life love Leonor Rivera – would evolve into a symbol of Filipino womanhood as enduring as Marianne in France, who has been incarnated in the likes of Brigitte Bardot and Catherine Deneuve.

The Maria Clara fantasy was not to be: first because Maria Clara is revealed at the end of the novel as the daughter of a friar, Padre Damaso; and second, because Leonor Rivera in real life, betrayed Jose Rizal and married another man.

Or maybe, the feminine ideal represented by the mythical Maria Clara is just too weak to be comparable to the modern Filipina of today.

The Supreme Court has wisely adjusted the fantasy to reality.

New legal rate of interest

By: Raul J. Palabrica

Published by: Philippine Daily Inquirer on July 5, 2013, @inquirerdotnet

Last week, the Monetary Board—the country’s policy-making body on money, banking and credit—changed the legal rate of interest for loan and credit agreements.

Through Circular No. 799, the board declared that, effective July 1, “the rate of interest for the loan or forbearance of any money, goods or credits and the rate allowed in judgments, in the absence of an express contract as to such rate of interest, shall be 6 percent per annum.”

This means that if the parties fail to state in writing the interest payable on any of the transactions mentioned, or on account of a court judgment involving a related money claim, the imposable interest is 6 percent every year.

The circular amends an issuance of the board in 1974, or 39 years ago, that fixed the legal interest at 12 percent per year.

The rate reduction comes in the wake of the country’s low inflation rate which dipped to a five-year low of 3.2 percent last year. Besides, the capital market is so liquid that banks are awash in money waiting to be borrowed by interested parties.

The rule of the thumb in interest rate setting of this nature is to peg it at a level that reflects the inflation rate and add extra points to enable the moneylenders to earn some profit from the transaction.

Agreement

A loan is the act of lending money to another person on condition that he will repay it within a specific period of time.

If the parties have agreed on the amount of interest payable on the loan, that agreement is binding on them. In the absence of such agreement, the interest due is 6 percent per year.

The inclusion of “forbearance of money, goods and credits” in the coverage of legal interest has been a bone of contention in transactions where certain conditions, in addition to standard payment clauses, are imposed, as in the case of conditional sale of property and consignment of goods.

This situation is often seized upon as justification by unscrupulous parties to refuse payment of the legal interest if, due to inadvertence or some false sense of trust and confidence, the parties (usually the creditor) failed to clear up this matter in the agreement.

In “HermojinaEstoresvs Spouses Arturo and Laura Sapangan, G.R. No. 175139, dated April 18, 2012,” the Supreme Court said forbearance of money, goods or credits refers to “arrangements other than loan agreements where a person acquiesces to the temporary use of his money, goods or credits pending the happening of certain events or fulfillment of certain conditions.”

Refusal

The instant case involves the conditional sale of a parcel of land where the sellers agreed that, after receipt of certain sums of money from the buyers, they will secure the necessary government permits to enable the buyers to immediately move into the property.

Seven years after receipt of P3.5 million from the buyers, the sellers failed to live up to their commitments. The delay prompted the buyers to demand the return of their money with interest at 12 percent a year compounded annually.

The sellers refused to pay the interest sought. They argued that since the conditional deed of sale provided only for the return of the down payment in case of breach, they cannot be held liable to pay legal interest on it. The case wended its way through the judicial mill for 12 years, from the regional trial court to the Court of Appeals and finally to the tribunal.

The tribunal ruled that the buyers “were deprived of the use of their money pending the fulfillment of the conditions and when those conditions were breached, they are entitled not only to the return of the principal amount paid, but also to compensation for the use of their money.

“And the compensation for the use of their money absent, any stipulation should be the same rate of legal interest applicable to a loan since the use or deprivation of funds is similar to a loan.” Bottom line, the sellers were ordered to return the P3.5 million, plus 12 percent interest computed from the day the demand for repayment was made in 2000 until fully paid, and attorney’s fees.

Information

Although meant for general commercial application, the implementation of the new legal interest rate will rest primarily with our courts and administrative offices that process and enforce money claims and awards.

The judges who decide on money claims brought before them and the sheriffs who will enforce judicial awards through direct payment or garnishment of bank accounts, should be properly informed of the change in legal interest rate.

Since there has been scant publicity about this change, these officials may still think the 39-year- old 12 percent per-year legal interest is still in effect.

Government offices that handle money claims or impose fines for violation of regulatory rules that impose interest for delayed payments should be similarly put on notice about the reduction of the legal interest rate. For example, at the National Labor Relations Commission, awards of separation pay or backwages to employees are entitled to legal interest from the time they were due or for every day of delay of payment from the date of the award.

Nasty disagreements in the computation of such awards may arise if the sheriffs who will implement them are not apprised of the interest adjustment.

It should be borne in mind that since the new rate is effective only on July 1, money awards entitled to legal interest that started to run before that date and continue to remain unpaid up to the present will have two interest rates depending on when the interest accrued. Some people are going to be unhappy about this change of fortune.

PH Laws: Not a man’s world

by Fritzie Rodriguez

MANILA, Philippines – Women.

The world celebrates “16 days of activism against gender violence” from November 25 to December 10 – marking two significant dates: International Day for the Elimination of Violence Against Women (VAW) and Human Rights Day.

The Philippines added two extra days to include December 12, the anti-trafficking day. During these 18 days, Filipinos are encouraged to join discussions over different issues concerning not only women and children.

In 2014, the Philippines ranked 9th highest in terms of gender equality, according to the World Economic Forum. This is the highest in Asia, with Singapore at second place, but only 59th overall.

The Philippines has consistently ranked among the top 10 for the past 8 years, faring well in terms of equality in employment, education, politics, and health.

Does this mean that gender equality persists in the country? Yes, but not fully. A lot of work is yet to be done, advocates say.

Women legislators from the House of Representatives came together on Tuesday, November 25, to call on fellow lawmakers to be more “gender responsive” by creating or supporting laws uplifting women’s rights, or by scrutinizing and amending discriminatory provisions of existing policies.

The huddle, dubbed as “Moving Forward with Women’s Rights” and led by the Philippine Commission on Women (PCW), highlighted the role of legislators – women and men alike – in pushing for equality and empowerment.

Oddly, no men showed up.

Speaker Feliciano Belmonte Jr, however, sent a message assuring that the 16th Congress will be supportive of the women’s agenda.

The fate of his promise, however, relies not only on the legislators but also on the public.

Women, violence

“There are around 32,000 or 75% of all barangays with VAW desks,” said Emmeline Verzosa, PCW Executive Director. “But whether they’re functional is another matter. We need to provide more training.”

All barangays in Regions IV-A and VII have VAW desks, while the Autonomous Region in Muslim Mindanao (ARMM) had the lowest count, the Department of the Interior and Local Government (DILG) reported.

VAW desks must address cases of gender-based violence and assist victims in the process. It should be funded by the local government’s gender and development (GAD) budget, as mandated by law.

Over 26,000 VAWC cases among barangays were reported as of December 2013, according to DILG. In 2012, the Women and Children Protection Center of the Philippine National Police reported 9,693 VAW cases.

Many cases, however, still go unreported.

Republic Act 9262 or the Anti-VAWC Act was only implemented a decade ago. It penalizes those who abuse women – either married, dating, living together, or having sexual relations – and children, whether legitimate or not.

Women in same-sex relationships are also covered.

Such cases not only involve physical violence, but also sexual, psychological, and economic abuse.

The law considers VAWC a “public crime,” hence complaints may be made by others aside from the abused, as long they have “personal knowledge” of the crime.

Citizens are encouraged to speak up for those who are silenced.

Battle for the woman's body

PCW cited that 14.4% of women experience abuse in the hands of their own husbands. Four out 100 women experience abuse while pregnant.

“The battle for advancing women’s rights is still a battle for the woman’s body,” said Maria Fabros of PCW. “Who owns the rights to a woman’s body?”

The woman, of course. Unfortunately, many Filipinos still believe otherwise.

For some, it’s the husband. Earlier this year, a man from Cagayan de Oro was sentenced to life imprisonment for raping his wife. The Supreme Court affirmed its conviction in 2002, stressing that sex, even within marriage, “if not consensual, is rape” as stated in the Anti-Rape law of 1997.

The martial rape case was filed way back in 1999.

Before such laws were made, wives cannot accuse their husbands of rape. “Battery fell under physical injuries of the Penal Code. Now it’s marked as a special crime,” added Rina Jimenez-David, a woman’s right advocate.

Sexual harassment remained an unknown concept until the passage of the Anti-Sexual Harassment Act (RA 7877) in 1995, advocates said.

For others, a woman’s body belongs to god, citing biblical passages as arguments against the Reproductive Health law, which took more than a decade to pass; or other issues like abortion and homosexuality.

Interestingly, god is also viewed as male.

Man oh man

“You don’t have to be a woman to be a gender-responsive legislator,” said Verzosa. She calls on male legislators to also incorporate a “gender perspective” in all laws or programs, even in those not directly related to women’s issues.

This strategy is called “gender mainstreaming,” as advocated by the PCW. “It is critical in legislation because laws can either perpetuate or end discrimination,” Verzosa added.

She cited policies in Disaster Risk Reduction and Management, in which councils are required to have women members. “There are many gender issues during disasters,” she said.

Using gender-fair language among legislators is a good start, the PCW suggested.

Verzosa also observed that though there are now several women police officers, the majority of senior investigators are men. She suggested training more women intensively, since most victims feel more comfortable talking to fellow women.

“We are in a male-dominated parliament,” Senator Pia Cayetano said in a video message presented at the forum. “We have to learn for us to speak their language, or more importantly, they have to understand our language.”

The senator clarified that men are not the only ones guilty of subscribing to gender stereotypes, but also women.

She advises legislators to first do their research before supporting or arguing against laws, stressing the importance of consultation in the legislative process. “What makes a great bill is if it includes the ideas of others. It gives you new perspectives.”

Cayetano advised lawmakers to engage more with the public, non-governmental organizations, civil society organizations, and the media.

Advocates agree that although a lot of problems remain unresolved, the Philippines deserves credit for also having several laws aiming to protect women’s rights.

“The challenge now, aside from making new ones, is to do an oversight of the existing ones,” said Remedios Rikken, staunch feminist and PCW chairperson. – Rappler.com

Protecting slogans and taglines

by: Josephine Rima-Santiago

ORGANIZATIONS undertake branding campaigns to achieve certain goals, depending on their motivation. Some do it to increase revenue, some to reinforce their brand anew, some to provide a fresher look and feel to their old brand through rebranding, some to captivate a wider audience, and many more others. For a government office, an objective could be the promotion of some programs or projects.

With all these in mind, let me give you a few practical tips from an intellectual-property (IP) perspective so that you may give yourself an additional layer of protection before you launch any campaign publicly.

Copyright

Republic Act 8293, or the IP Code, is silent on whether or not slogans, taglines, catchwords, catchphrases, mottoes or short advertising expressions as such are protected by copyright. The Supreme Court of the US, however, has already answered this question: Their copyright law does not provide copyright protection to slogans, taglines, etc. As we accord persuasive value to jurisprudence from the US, it is likely that Philippine courts will take guidance from this.

It is not the end, though. In my opinion, however, if any of these is presented in an artistic and original manner, the artistic expression of such slogan may be copyright protected. The IP Code, unfortunately, prohibits copyright in the work of the government except by assignment or bequest. What is the strategy, then, for the government acquiring copyright?

There are two ways. One, get the work done by an employee who does not do such work as part of his regularly prescribed duties. Two, commission the work. In both cases, let them assign the entire copyright to the work to the office or government.

Copyright in the Philippines does not need any formal registration in order to vest upon a work. Nevertheless, consider depositing the work with the National Library directly or via the Intellectual Property Office of the Philippines, for the issuance of a Certificate of Registration and Deposit, which serves as prima facie proof of ownership.

Trademark/service mark

CAN slogans and the like be protected under the law on trademarks? It depends. To qualify, a slogan must be distinctive. To be distinctive, a slogan must be something that sets it apart from others that, whenever it is mentioned, it is associated with the source of such slogan. A nondistinctive slogan may still be trademark-protected if it has developed secondary meaning over the years (ex., “Sarap to the bones.”) in a way that the slogan is associated with a product or service of the source. If it does not, it cannot be protected as a trademark. Moreover, a slogan that is merely informational cannot be protected as a trademark.

The main function of a trademark is to serve as a source identifier. It should be able to distinguish the goods and services of one enterprise from that of another. As applied in this case, slogans and taglines that function as trademarks should be able to identify the source of such slogans. Thus, we have slogans, like “We find ways”, “Serbisyong totoo” and “Nakasisiguro, gamot ay laging bago”, that are protected as trademarks.

When opting to file a trademark, take into consideration factors such as the duration of the use of the slogan. For long use, registering for trademark would be advisable; short use may be impractical. It should also be used in the course of trade or business.

Another factor to take note is the geographical scope of the use. Is it domestic or is it international in scope? If the latter, consider protecting your slogan in those countries, too. In line with this, it may interest you to know that the Philippines is a signatory to the Madrid Protocol. It is a treaty that enables a trademark filer to file a single application and pay one set of fees to apply for protection in up to 115 countries. It is the most cost-effective way of filing trademarks in many countries.

Remember, however, that the grant of a trademark application in the Philippines takes anywhere on the average between four to six months (without opposition). Take this into account when you are preparing for the launch of your slogan, particularly if it is to be used in a campaign.

Campaigns entail branding, and branding involves IP. Bear in mind that IP, when utilized well, can provide more value to any field of human activity. Used improperly and half-wittedly, however, may cost one much more than money.

SEPARATED SENATOR SAYS NO TO DIVORCE

by Michael Lim-Ubac

MANILA, Philippines—Senator Francisco Escudero, who parted ways with his wife last year, said he is opposed to the legalization of divorce in the country.

At the Kapihan sa Senado news forum, the senator said the Family Code’s provisions on legal separation and annulment were enough options for addressing dysfunctional marriages.

“In my view, there is a serious disagreement between the government, Congress and the (Catholic) Church over the Reproductive Health bill, so this is not the right time to exacerbate this (rift),” he also said.

The Philippines is the only remaining country outside the Vatican that does not have a divorce law.

Gabriela party-list Representatives Luz Ilagan and Emmi de Jesus have filed a bill introducing divorce in the country. It is languishing at the House committee on revision of laws.

Escudero has filed a petition to annul his marriage in 1999 to Christine Elizabeth “Tintin” Flores, with whom he has fraternal twins—a boy and a girl.

Escudero took pains to explain the difference between divorce and annulment. “Legally, the ground and basis for annulment should have existed at the time you were married,” he said. While in the divorce law in the US, for example, incompatibility is allowed as a legal ground to seek the nullity of marriage. However, Escudero pointed to “a small window for divorce” in Article 36 of the Family Code. “There is a catchphrase that allows a small window for divorce. In Article 36 of the Family Code, the basis for psychological incapacity as a ground for annulment must exist at the time of marriage, and this is the questionable phrase, even though it became apparent after the marriage,” he said. “So it’s a ‘not here nor there’ (provision), which does not jibe with the legal and technical difference of divorce and annulment,” he said.

Stricter AMLA reporting guidelines set to take effect

By Rappler

Published: 8:30 PM, January 03, 2018

This is part of the Philippine government's campaign against money laundering and terrorism financing.

MANILA, Philippines – The stricter registration and reporting guidelines of the Anti-Money Laundering Council (AMLC) are set to take effect on Thursday, January 4.

This is part of the government's campaign against money laundering and terrorism financing, which was highlighted when $81 million stolen from Bangladesh's central bank was coursed through a Philippine bank and casinos in 2016. (READ: How Bangladesh Bank dirty money easily got into PH)

The $81-million Bangladesh Bank heist had pushed the government to put more teeth into the Anti-Money Laundering Act (AMLA).

In August 2017, President Rodrigo Duterte signed a law amending AMLA. It included casinos, real estate developers, money transfer firms, junket operators, and dealers of high-value items under the AMLC's watch.

In an advisory on Wednesday, January 3, anti-money laundering authorities announced that the AMLC Registration and Reporting Guidelines (ARRG) would be implemented beginning Thursday.

Mel Georgie Racela, executive director of the AMLC Secretariat, had said the new guidelines would improve the quality and usefulness of information submitted by covered persons.

"The AMLC had long wanted a revamp of the system and rules on registration and reporting due to the surge in the number of covered persons, and thus, of their transactions," Racela said.

In just 5 days

The fresh AMLA law requires covered persons – like those in banks, insurance companies, and securities dealing firms – to submit suspicious transaction reports (STRs) within 5 days of an incident.This includes the date of determination of the suspicious nature of the transaction, which should not exceed 10 calendar days.

"The adoption of the AMLC [regulations] should strengthen the tools available to the AMLC in its fight against money laundering and terrorism financing," Racela said.He added that imposing appropriate sanctions for violators would ensure a culture of compliance among the covered persons.

"Moreover, the quality of STRs had to be improved. The AMLC had also striven to find suitable ways to establish a central linkage among the supervising authorities that would facilitate our coordination," Racela said.

The AMLC official added that two new facilities would allow covered persons to upload know-your- customer (KYC) documents for STRs as well as e-returns via the AMLC portal.

"This is if the reason for suspicion is based on the predicate crimes of kidnapping for ransom; drug trafficking; hijacking, destructive arson, and murder, including those perpetrated by terrorists against non-combatant persons and similar targets; and acts of terrorism and terrorism financing," he said.

The ARRG excludes casinos, which would have a separate set of rules.

The results of the 2nd National Risk Assessment (NRA) on Money Laundering and Terrorist Financing showed that the AMLC reported over P10 billion worth of funds were laundered in the country from 2015 to 2016. – Rappler.com

Editorial: Tax reform: A gain or pain?

by SunStar Davao newspaper

Published: January 05, 2018

“HOW will the tax reform affect Filipinos?” This could be the question running into our minds after President Rodrigo Duterte on December 19, signed into law the tax reform package along with the P3.767-trillion 2018 annual budget. Just these past few days, we saw on our social media feed that S&R, a membership shopping chain, announced the ceasing of its “unlimited soda” offering effective January 1 as the government implemented higher excise taxes on sugar-sweetened drinks. To clearly define, the reform or Tax Reform for Acceleration and Inclusion (Train/ Republic Act 10963) law exempts from paying taxes the first P250,000 annual taxable income, meaning those earning P21,000 a month would no longer need to pay income taxes. It also raises the tax exemption for 13th month pay and other bonuses to P90,000. However, to compensate for loss of revenue from income taxes, Filipinos will need to pay excise tax on sweetened beverages, and higher excise taxes on petroleum, automobile, tobacco, mining and coal.

Train is the first package of the Duterte administration’s Comprehensive Tax Reform Program (CTRP). Just recently, Associated Labor Unions-Trade Union Congress of the Philippines (ALU-TUCP) spokesperson Alan Tanjusay said Train will have an adverse effect to members of the informal economy and will push for wider and deeper poverty-related problems if not addressed. Informal economy is the part of an economy that is neither taxed, nor monitored by the government. The group is referring to vendors, fisherfolks, farmers, public utility vehicles and pedicab (cycle rickshaw) drivers, among others. “If not addressed, the brewing social storm would create bigger and wider poverty among our people. Workers are already burdened with pre-existing bad conditions and encumbered with traffic congestion and high cost of living. The unclear, if not inadequate social safety net, will offer no hope for workers in coping with rising inflation,” Tanjusay said in a statement. But, Finance Secretary Carlos Dominguez III has made it clear that even non-taxpayers will benefit from the reform by way of more job opportunities, better infrastructure that will lower the transport and distribution costs of goods, and improved services. Dominguez said even those not paying taxes will benefit because of higher spending for education, health care, and other forms of human capital development that would help set the foundation to lift themselves out of the poverty trap. “How can I benefit you if you’re not paying tax? I can benefit you by giving you a job, right? So how am I going to do that? Invest money and then create infrastructure,” Dominguez said. Dominguez also said that up to 30 percent of the incremental revenues from the Train will help fund a targeted cash transfer program for the country’s poorest 10 million households to aid the bottom 50 percent of the population in coping with the initial effects of the tax reform law on the prices of basic necessities. As we enter the New Year and dance our way to 2018, we will observe how this reform will cascade the “promised benefits’ to the public, especially, the poorest of the poor. We will keep an eye on whether it will give more benefits to the tax payers or the other way around.

Thorny right-of- way issues

By: Raul J. Palabrica

Published by: Philippine Daily Inquirer on February 19, 2018, @inquirerdotnet

The administration’s “Build, Build, Build” program has received a boost with the reported allocation by the Department of Budget and Management of P34.9 billion to the Departments of Public Works and Highways and Transportation for right-of-way (ROW) acquisitions this year.

These acquisitions are critical to the administration’s aspiration to have new and improved infrastructure projects in full construction swing or operational by the time President Duterte’s term ends in 2022.

For decades, ROW issues have been a pain in the neck in the construction of the country’s roads, airports, seaports and other facilities.

Disputes over the legality of ROW acquisitions and valuation of expropriated private property are common fare in infrastructure projects, whether government-initiated or undertaken in conjunction with private companies.

Although courts are prohibited by law from issuing temporary restraining orders or similar writs on government infrastructure projects, some judges, on the pretext of protecting the rights of allegedly aggrieved contractors, have done so to the detriment of the prompt completion of the projects.

In spite of strongly worded circulars from the Supreme Court to the lower courts to strictly comply with this law, some judges have managed to go around them through procedural manuevers that avoid the use of the words “restrained or enjoined” but produce the same effect.

The time-tested way to get this legal obstacle out of the way is for the lawyer of the winning contractor to come up with the right amount of arguments that would convince His Honor to set aside his order.

With regard to valuation, the usual bone of contention is how much the government should pay the property owner for the portion of his property that has been or is proposed to be taken over.

The rule of the thumb in expropriation cases is, payment should be based on the property’s fair market value (FMV), or the price at which one would sell his property to a willing buyer where neither party is compelled to sell or buy it, at the time of the taking.

This price is different from the “zonal valuation” that the Bureau of Internal Revenue uses to determine, for purposes of computing the capital gains tax in sales of real property, whether the selling price of a property in a certain locality that has been sold and is being registered by its buyer is fair or undervalued.

Under normal circumstances, the FMV can be arrived at by finding out the cost per square meter of properties that are adjacent to the property subject of expropriation at the time of its taking by the government.

But some property owners want more than the FMV before they agree to peacefully cede their property. They also want to be compensated for so-called lost opportunity costs or the anticipated increase in the value of their land due to expected improvements in their area after several years.

If the owner stands pat on his demand for a price higher than FMV, the government would be obliged to commence expropriation proceedings in court which could take months, if not years, to finish depending on the temperament of the judge; or if a private company is involved, the latter may have no choice but agree to the additional costs to avoid delay in the completion of the project.

The problem becomes more complicated if the property is privately owned but the owner is nowhere to be found and the land is occupied by informal settlers, or its owners have passed away and their heirs cannot agree on the partition of the property among themselves, or there are several claimants to the property and its ownership is under litigation.

While there are legal ways to resolve these issues, their resolution often takes time and, in the meantime, the project is put on hold or work slows down to await the resolution of the problem.

With P34.9 billion to play around with, the government is in a good position to promptly settle compensation claims over ROW issues. After all, as the saying goes, money talks, and ROW issues are, at the end of the day, all about that.