The Law Firm of Bartolome Salazar and Partners

The Law Firm of Bartolome Salazar and Partners Customs, Taxation, Criminal, Civil Cases

13/06/2024

Common Defenses Against a Letter of Authority (LOA) from the BIR

Imagine the BIR, which is like the tax police in the Philippines, wants to check if someone has paid the right amount of taxes. They do this by sending a letter called a Letter of Authority (LOA). However, there are rules to make sure they do it fairly. Here are some common defenses taxpayers can use if they think the BIR didn’t follow the rules.

1. Proper Issuance of LOA:

What It Means: The LOA must be correctly made and only for the person it is addressed to. It must also clearly say what time period they are checking.

Why It Matters: If the BIR checks more than what the LOA says or if the LOA was made incorrectly, it’s like a referee making a wrong call in a game. The person can say the check was unfair.

2. Authorization by the Commissioner:

What It Means: Only the Commissioner (the boss of the BIR) or someone they have authorized can issue an LOA.

Why It Matters: If someone who isn’t allowed issues the LOA, it’s like someone who isn’t the coach making team decisions. The LOA can be considered invalid.

3. Notice to Taxpayer:

What It Means: The person being checked must be told about the audit (the check) and given a chance to respond.

Why It Matters: It’s like being told you’re going to have a test at school. If you aren’t told, it’s unfair. If the person didn’t know about the check, they can argue it wasn’t fair.

4. Service of Assessment Notice:

What It Means: After checking, the BIR must tell the person their findings within a certain time.

Why It Matters: It’s like getting your test results back in time. If the BIR is late, the person can argue that the check wasn’t done properly.

To defend against a BIR LOA, the person must know these rules. If the BIR didn’t follow them, the person can challenge the LOA. These rules help make sure the BIR checks are done fairly and protect people’s rights.

15/05/2024

Dear BSP,

My name is Mark. I borrowed PHP 30,000 from an online lending application. The interest rate was approximately 1% per day. Initially, I managed to make some payments, but after a few weeks, I was unable to keep up with the payments, and now the amount due has ballooned to around PHP 50,000. The lending company is sending me threatening messages, demanding contact details of my relatives and family members, and threatening to post about me online. I am a professional teacher. What can I do? Is their interest rate legal?

Hi Mark!

The interest rate of approximately 1% per day imposed by the online lending application is exorbitant and illegal. Our legal interest rate should not exceed 6% per year, translating to a daily interest rate of approximately 0.016%.

The 1% rate you were charged is significantly higher than the permissible limit, indicating a violation of BSP regulations and public policy against usurious interest rates, as affirmed by the Supreme Court in various cases.

Furthermore, the lending company’s actions of sending threatening messages and demanding personal information of your relatives and family members violate Republic Act No. 10173, also known as the Data Privacy Act of 2012. The National Privacy Commission (NPC) has issued advisories that debt collection agencies must not disclose debt information to third parties without consent, as such actions constitute harassment and unfair debt collection practices.

You may report the online lending application to the NPC for violating your privacy rights and employing unfair debt collection practices.

Consult a lawyer to explore legal actions for harassment and to potentially nullify the exorbitant interest rates.

These steps will help protect your rights and address the illegal practices of the online lending application.

15/05/2024

ONLINE LENDING: Legal Protections and the Illegality of Abusive Collection Practices

Sa mga nakaraang taon, ang pagdami ng mga online lending platform sa Pilipinas ay nagbigay ng mas madaling opsyon sa pananalapi para sa maraming Pilipino. Gayunpaman, kasama ng kaginhawaan na ito ay ang mga isyung may kinalaman sa mga pamamaraan ng pagkolekta ng utang at mga legal na proteksyon para sa mga nanghihiram.

Hindi Pagkakakulong Dahil sa Utang

Isa sa pinakamahalagang proteksyon para sa mga nanghihiram ayon sa batas ng Pilipinas ay ang pagbabawal sa pagkakakulong dahil sa hindi pagbabayad ng utang.

Ayon sa ating Konstitusyon, walang sino mang tao ang dapat ikulong dahil sa pagkakautang.

Ang probisyong ito ay nagsisiguro na ang mga indibidwal ay hindi makukulong dahil lamang sa hindi nila nababayaran ang kanilang mga utang.

Mga Ilegal na Pamamaraan ng Pagkolekta

Ang ating mga batas, kasama ng iba't ibang regulasyon ng gobyerno, ay nagtatakda ng mga tamang pamamaraan sa pagkolekta ng utang at tahasang ipinagbabawal ang hindi makatarungang mga pamamaraan ng pagkolekta.

Kabilang dito ang paggamit ng pagbabanta, harassment, public shaming, at iba pang anyo ng mapang-abusong pag-uugali. Ang mga lending company na mapapatunayang gumagamit ng mga ganitong pamamaraan ay maaaring mapatawan ng mabigat na parusa at sanction, kabilang ang multa at suspensyon o pagkansela ng kanilang lisensya sa negosyo.

Ang mga nanghihiram na nakakaranas ng harassment o pagbabanta mula sa mga online lending company ay may ilang paraan upang makakuha ng tulong. Maaari silang maghain ng reklamo sa SEC, na may kapangyarihang magsagawa ng imbestigasyon at aksyon laban sa mga lumalabag na kumpanya. Bukod dito, maaari din silang humingi ng tulong mula sa mga pampublikong abogado para sa paghahain ng reklamo laban sa mga naturang lenders.

Message us for consultation.


HAPPY MOTHER’S DAY TO OUR BRAVE MOTHERS
15/05/2024

HAPPY MOTHER’S DAY TO OUR BRAVE MOTHERS

15/05/2024

PARTITION CASES AND THEIR RESOLUTION IN THE PHILIPPINES

Partition cases in the Philippines involve the division of property among co-owners who cannot agree on how to distribute it. These cases can arise between co-owners or heirs and can be resolved either voluntarily or through judicial intervention.

The primary legal basis for partition cases is found in the Civil Code of the Philippines. The law grants each co-owner the right to demand partition of the property at any time, barring any agreed-upon period of indivision or legal restrictions.

There are two main types of partition: voluntary and judicial. In a voluntary partition, co-owners mutually agree on how to divide the property, drafting and executing a notarized agreement. This method is straightforward and minimizes conflict. Conversely, a judicial partition is initiated when co-owners cannot reach an agreement. A co-owner files a complaint for partition in court where the property is located, specifying the ownership interests and the desire for partition.

The judicial partition process begins with the court conducting hearings to validate the partition claim. If partition is appropriate, the court appoints three commissioners to oversee the process. These commissioners prepare a report on how to divide the property or recommend its sale if it is indivisible. The court reviews the commissioners’ report and, if approved, issues an order for partition based on the report. The property is then divided according to the court order or sold with the proceeds distributed among the co-owners.

Legal remedies for co-owners in partition cases include actions for accounting, reimbursement, and annulment of partition. Co-owners may request an accounting of the property’s income and expenses before partition or seek reimbursement for property improvements. If fraud or mistake is involved, a co-owner can file an action to annul the partition.

Resolving partition cases effectively requires encouraging amicable settlements to avoid lengthy litigation. Proper documentation of agreements and accurate valuation of the property are essential for ensuring equitable division. Engaging a competent lawyer is important to navigating the complexities of partition cases.

Partition cases aims the fair division of co-owned property, either through mutual agreement or judicial intervention. Understanding the legal provisions, promoting amicable settlements, and securing proper legal representation are key to resolving such cases.

15/05/2024

COMPARISON OF B.P. 22 AND ESTAFA

Batas Pambansa Blg. 22 (B.P. 22)

Also known as the Bouncing Checks Law, BP 22 penalizes the issuance of checks without sufficient funds. Its purpose is to ensure the integrity of banking transactions by penalizing the act of issuing worthless checks.

ESTAFA

Estafa, or swindling, is a crime involving fraud or deceit, resulting in damage to another party.

Estafa penalizes acts of fraud or deceit that cause injury to another, often involving false pretenses, misappropriation, or conversion of property.

ELEMENTS OF THE OFFENSES

BP 22

Issuance of a Check: The accused issued a check.

Knowledge of Insufficient Funds: The issuer knew at the time of issuance that they did not have sufficient funds or credit with the bank.

Dishonor of the Check: The check was dishonored upon presentment for payment within 90 days from the date of issuance.

Notice of Dishonor: The issuer was notified in writing of the dishonor and failed to make arrangements for payment within five banking days.

ESTAFA

Fraudulent Act: The accused committed a deceitful act (e.g., false pretenses, misrepresentation, conversion, or misappropriation).

Damage: The deceitful act caused damage or prejudice to another party.

Reliance: The injured party relied on the fraudulent act or false representation.

NATURE OF THE OFFENSES

BP 22: Focuses on the issuance of checks without sufficient funds and the integrity of banking transactions.

Estafa: Broader in scope, involving various forms of fraud and deceit beyond the mere issuance of checks.

REQUIREMENT OF INTENT

BP 22: Does not require proof of intent to defraud; the mere issuance of a worthless check is sufficient.

Estafa: Requires proof of intent to defraud or deceive the victim.

PROSECUTION

BP 22: The prosecution must establish that the check was issued, dishonored, and that the issuer failed to make arrangements for payment after receiving notice of dishonor.

Estafa: The prosecution must prove the deceitful act, the resulting damage, and the victim's reliance on the fraudulent act.

SIMULTANEOUS FILING

It is possible to file charges for both BP 22 and Estafa simultaneously, provided the elements of both offenses are present.

For instance, if a person issues a check without sufficient funds (BP 22) as part of a scheme to defraud another (Estafa), both charges can be pursued.

The Supreme Court has clarified that prosecution under BP 22 does not preclude prosecution for Estafa, as the two offenses protect different societal interests and involve different elements​.

Message us for consultation.


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