The burden of proof shifts to the Defense*

Charles Laughton in the film, “Witness for the Prosecution.”

*Figuratively speaking: as @Katarungan2010 pointed out on Twitter,

[T]he burden of proof always rests on the prosec. Otherwise, it violates the Consti. What shifts is burden of evidence. And prima facie evidence isn’t automatic. Prosec must first show that the elements required by the applicable law concur, before the the presumption can arise. Only then will the burden of evidence shift to the other party to overcome such presumption. Otherwise, to sanction shift of burden of proof to the other party violates the Constitutional guarantee of presumption of innocence.

So Thursday’s hearing began with the irrepressible Senator Miriam Defensor Santiago: who let loose with such vigor, she had to leave the proceedings. But not before opening up the question of what sort of commentary was allowable –various lawyers have invoked the principle of sub judice.

On sub judice, there is this discussion in Romero v. Estrada G.R. No. 174105, April 2, 2009:

The sub judice rule restricts comments and disclosures pertaining to judicial proceedings to avoid prejudging the issue, influencing the court, or obstructing the administration of justice. A violation of the sub judice rule may render one liable for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court. The rationale for the rule adverted to is set out in Nestle Philippines v. Sanchez:

“[I]t is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies.”

Joker Arroyo says only when a document is formally offered in evidence, it becomes a public document. But is he correct? Some documents are, in and of themselves, public documents: a police blotter is a commonly known one (ask any police beat reporter) another Transfer Certificates of Title –actually anything filed with a government agency is a public document.

More on this:

THE PRESIDING OFFICER. The gentle Lady from Taguig.

SEN. CAYETANO (P.). Thank you. Mr. President, I believe there is no disagreement among the Senators. I think we can reconcile the views We simply have to distinguish between the presentation or the marking of the evidence and the formal offer of evidence when we are just in the marking stage. By all means, this should not be paraded. And I beg to disagree when the statement is made that this has not been released. Perhaps it has not been distributed to the public, but the news will bear me out that it is shown like this by spokespersons. I don’t know how close up that goes and I do not know if after that is released because I have reports that it is circulating in the internet. And there is a big difference between documents that have been marked and have been offered. And I totally agree that this is a public hearing, that the public should be well-informed, that we should not hide anything. In fact, I am not aware that we have provisions for executive sessions. But there is a big difference between deceiving the public and making it appear that these have already been formally offered when, in fact, they have only been marked. And these are fine distinctions that lawyers or members of the Senate Judges will be able to determine at the proper time. But to use it at a time in media, when it has only been marked, is deceiving the public, Mr. President.

THE PRESIDING OFFICER. Thank you. Anyway, the Chair has cautioned the two sides of these proceeding, adversarial proceeding, the prosecution and the defense, to exercise caution. You know, in other countries, when you are going to publicize a case, a criminal case especially, and it is inordinately discussed in public, it could be a basis for a mistrial which of course is not a part of our system of criminal procedure. But nonetheless, there is a purpose for this caution because we must not unnecessarily create an impression in the minds of the public that this is already an admitted evidence. Not yet. It is only being presented. The Minority Floor Leader.

SEN. CAYETANO. Thank you, Mr. Presiding Officer. Mr. Presiding Officer, if we look at Rule 18. At all times, when the Senate is sitting… prosecutors to the persons impeached and to their respective counsels and witness. I read this rule in support of all those who stood before me. Senator Joker Arroyo is correct that just because it is a trial and it is open, that does not mean that we violate peoples’ right. But Senator Lacson is correct in pointing out that we have to suspend our rules if we want to go in executive session but we all agreed when we made the rules that we should in fact put everything before the people, ilantad lahat po ito para walang magsuspetsa kung ano ang magiging desisyon, kung ano ang mga ebidensya. Pero, Mr. President, I would like to point out two things. First, our witness here has been very careful and has followed her oath and her work very well by, noong iprinesent po iyong alpha list ng Supreme Court, sinabi naman po niya na may ibang names doon. Kaya ang ginawa po niya hindi niya inilabas para makita iyong ibang mga pangalan. And there were times in the past that this was the discussion and in fact we have been discussing halimbawa maglalabas ng mga titulo na may mga ibang pangalan dito kalian pwedeng madamay iyong ibang tao because it is necessary in the trial at kalian hindi. So I agree with the Presiding Officer to exercise caution and let us just simply follow the law. In the case of the ITR of the Chief Justice, the President has already authorized its release and if it is brought up in the trial, the cameras here are very powerful. They can zoom in any time and see it for themselves. But let me make the second point very briefly, Your Honor.

I keep reading in the newspapers a gag rule and I think they are referring to the second and third paragraphs I read. Let me just point out that there is a difference between a subjudice rule and a gag rule. Because a gag rule is absolute. Ang ibig sabihin nga ng gag ay tatakpan mo iyong bibig in layman’s term at hindi pwedeng magsalita anything and everything about that case. Iyong subjudice ay meron certain parameters. For example, if you are simply narrating or detailing what was in the complaint or what happened today or what it was in the answer or if you are a part of the media or the spokesman and you are simply recapping or showing both sides. That is why if you look at the words, nakalagay refrain. Hindi nakalagay dito na absolutely huwag magsalita ang prosecution or judges. But sa judges mas maingat kami sapagkat mai-interpret na kinakampihan naming ang isang side pag nagsalita kami.

So, Mr. President, let me just agree with my colleagues here and let me agree with you. Let’s just be very careful. Let’s not be too excited that in coming out with the evidence whether for the prosecution or the defense we violate and trample upon people’s right. But so far our witnesses have been very careful from the Clerk of the Supreme Court to the BIR Commissioner. Thank you, Mr. President.

SEN. SOTTO. Perhaps, Mr. President, the final word from Senator Joker Arroyo. May we recognize him.

THE PRESIDING OFFICER. The Gentleman from Makati.

SEN. ARROYO. Mr. President, I do not want to belabour the point, I started this.

We have rules and rules are designed so that every one would follow the rule. The rule is simple—that any evidence that is identified or marked is not yet evidence. It is nothing but a piece of paper. When will it be a public document? When it is admitted. When it is admitted then it becomes a public document. The Internal Revenue Code is very strict in this. About the internal revenue the ITRs to be sacrosanct. As a matter of fact, Commissioner Henares would not have been here or brought those documents had not the President of the Philippines no less authorized the opening of those documents. The National Internal Revenue Code says that insofar as the ITR is concerned, the commissioner must seek the permission of the President, which she said she did in writing.

So, in other words, no matter how public our hearing is, the rule of secrecy must be followed. There is no exception to that. It is a public trial, but order must be maintained. Otherwise, it’s no trial at all. That is the reason for this trial. A trial assumes order, system. If without it then it’s useless. That is all. I don’t want to argue with anyone on that. I just want to call the attention, so that henceforth, we will follow the rules.

Thank you, Mr. President.

THE PRESIDING OFFICER. I would like to state for the record that that was precisely the reason why the Chair cautioned the private prosecutor not to go into the substance of the document, meaning the contents, because the Commissioner of Internal Revenue was brought here to testify on the documents that she brought, and whether they were an authentic documents, meaning that they have conformed with the formal requirements of the stature, and to present those documents, because those documents are the best evidence of the contents, whether there’s any income tax or income reported and whether taxes were paid. There’s no better evidence than the income tax, of course, in the supporting receipts no.

So, I hope we will adhere to these rules so that we can move into the trial smoothly. I could not object to the questions relating to the substance because I’m the Presiding Officer. But I cautioned—The records will show that the Chair cautioned the private prosecutor in delving into the contents of the documents that were presented by the Commissioner of Internal Revenue.

In fact, even the alpha list, I said, the best evidence of the contents of the alpha list is the alpha list itself.

So, with that, now, I would like to hear the pleasure of the defense counsel.

Writing in Rappler.com, Atty. Edsel Tupaz, who has been writing extensively on the legal aspects of impeachment (something he started doing during the Estrada impeachment), puts forward a counter-argument: that there is a corresponding issue of free speech and public interest. See On sub judice and gag orders:

Can and should the Senate, perhaps through Enrile, punish the spokespersons of either the defense or prosecution if any of them utters speech of a nature that would “so inflame the jury’s minds” against Chief Justice Corona as to deny him a fair trial? Is the trial in question a criminal proceeding in the first place?

And, even if both were true, are the spokespersons speaking in the name of press freedom and right to information, or are they speaking as counsel for the accused or for the prosecution? Is there any real risk that a propaganda campaign in the form of social media will prevent Corona from having a fair trial in the Senate?

Such an assertion may be a hard sell. It can be argued, as a colleague of mine did, that the exposure of a jury of lay persons to propaganda and unfairly prejudicial statements may so affect their minds and deliberations as to render a fair trial unlikely. However, it is the general orthodoxy that learned professional persons, more particularly, lawyers and seasoned lawmakers, are not as easily influenced by extraneous matters and are able to distinguish between what is relevant in their deliberations and what is not.

While this may be somewhat of a fiction, and naïvely discounts the frailties of the human psyche, and the susceptibility of all persons to prejudice of one kind or the next, nonetheless, the circumstances render any argument of prejudice at a trial by the Senate unconvincing. So, any propaganda here may be irrelevant.

My advice to you then, in case of doubt, is to go ahead and click “like” and “share” on Facebook, or Tweet away! Of greater concern, really, would be the infiltration of political concerns into the deliberations of the Senate, given the connection and suspected loyalties of the Chief Justice to one or two political factions.

The impeachment trial serves as a crash course in legal terms and principles. Consider this exchange:

SEN. SANTIAGO. Thank you. Under the Rules of Court, no party is allowed to present evidence, unless that evidence is relevant to the charges contained in the complaint, or as in our case, in the articles of impeachment. That is the general rule. You can admit evidence that is not related to any of the charges in the complaint, only after you have amended the complaint.

Now, my query now is, presented to both counsel and to my fellow, my brothers and sisters in the impeachment court is this, and I will not necessarily request for an answer at this time, it may be memoranda.

The question is this, what is the time frame for amending the complaint or the articles of impeachment? Can you amend at any time or is there a deadline? If the counsels are interested in this question, may I offer the suggestion that they should file memoranda, so that at caucus, the Senate court might discuss this among ourselves.

JUSTICE CUEVAS. May I be allowed to present the view of the defense, Your Honor?

THE PRESIDING OFFICER. I think the counsel for the prosecution has stood to make a remark. We will allow him first.

ATTY. LIM. May I be allowed to present some manifestations or comment.

THE PRESIDING OFFICER. Proceed.

ATTY. LIM. Thank you, Your Honor. I believe that distinction must be drawn between the factum probandum and the factum probands.

A brief interruption is in order at this point, for definitions (on a side note: there’s an interesting entry in abogado.com on: Standard of evidence in the Corona impeachment trial):

Factum probandum: ultimate fact or the fact sought to be established

Factum probands: evidentiary fact or the fact by which the factum probandum is to be established

So, let us return to the exchange:

THE PRESIDING OFFICER. That is correct. What is the probandum here?

ATTY. LIM. The probandum here, Your Honor, is, as stated in Article II and in the body of Article II explaining it, since the title cannot be taken in isolation, it is failure to report SALN or disclose SALN to the public and the commission of the acts described in paragraphs 2.2 and 2.3. As a matter of fact, even with respect to Article 2.4, if I may be permitted to respectfully invite the attention to the Journal record of January 25, 2012, starting on page 3, where we see the name Senator Drilon, just to amplify, Mr. Senate President, When the court ruled indeed that the court will allow introduction of evicdence on 2.2 and 2.3 which would allow evidence to prove that evidence can be introduced that a property, whether real or personal, is not included in the SALN, however, under Article 2.4, which asserts that such properties could be ill-gotten, the court did not rule on that. And we will rely on the presumptions of evidence on the presumptions of law, particularly the Anti-Graft Law, Mr. President. “The Presiding Officer. That is correct.” It is our humble submission and manifestation then that this honorable court…

THE PRESIDING OFFICER. Just a minute, Counsel.

ATTY. LIM. Yes, Your Honor.

THE PRESIDING OFFICER. We are guided by a decision of the Supreme Court in the case of the articles of impeachment against the former Ombudsman Merceditas Gutierrez. I am trying to get a copy of the decision. And in that decision, the Supreme Court’s opinion, penned by the present Ombudsman, then Justice Conchita Carpio-Morales, said that the articles of impeachment must charge only one, must embrace only one charge for each article of impeachment. That is very emphatic. It is a rule established by the court. We did not establish it here. So, I am sad to say that there was fault in the crafting of your pleading. And that is why we have to correct it in a caucus. We became very liberal. In fact, we allowed paragraph 2.3 but we disallowed paragraph 2.4 because it is obviously not germane to the question of SALN or Article II and you included it in Article 2 of the Articles of Impeachment. And, in fact, even paragraph 2.3, if you read the specification under the grounds ofr impeachment stated in your articles of impeachment, for Article II, you merely alleged the ultimate fact of non-disclosure of the SALN. But we became liberal to allow evidence to be introduced on paragraph 2.3 of your discussion. Mind you, this is the discussion of your Article II, not Article II itself, but a discussion of Article II.

The case cited by the Senate President and the one charge, one Article rule, is Gutierrez v. House of Representatives G.R. No. 193459, February 15, 2011:

First is on the “one offense, one complaint” rule. By way of reference to Section 16 of the Impeachment Rules, petitioner invokes the application of Section 13, Rule 110 of the Rules on Criminal Procedure which states that “[a] complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses.” To petitioner, the two impeachment complaints are insufficient in form and substance since each charges her with both culpable violation of the Constitution and betrayal of public trust. She concludes that public respondent gravely abused its discretion when it disregarded its own rules.

Petitioner adds that heaping two or more charges in one complaint will confuse her in preparing her defense; expose her to the grave dangers of the highly political nature of the impeachment process; constitute a whimsical disregard of certain rules; impair her performance of official functions as well as that of the House; and prevent public respondent from completing its report within the deadline.

Public respondent counters that there is no requirement in the Constitution that an impeachment complaint must charge only one offense, and the nature of impeachable offenses precludes the application of the above-said Rule on Criminal Procedure since the broad terms cannot be defined with the same precision required in defining crimes. It adds that the determination of the grounds for impeachment is an exercise of political judgment, which issue respondent-intervenor also considers as non-justiciable, and to which the Baraquel group adds that impeachment is a political process and not a criminal prosecution, during which criminal prosecution stage the complaint or information referred thereto and cited by petitioner, unlike an impeachment complaint, must already be in the name of the People of the Philippines.  

The Baraquel group deems that there are provisions[92] outside the Rules on Criminal Procedure that are more relevant to the issue. Both the Baraquel and Reyes groups point out that even if Sec. 13 of Rule 110 is made to apply, petitioner’s case falls under the exception since impeachment prescribes a single punishment – removal from office and disqualification to hold any public office – even for various offenses. Both groups also observe that petitioner concededly and admittedly was not keen on pursuing this issue during the oral arguments.

Petitioner’s claim deserves scant consideration.

Without going into the effectiveness of the suppletory application of the Rules on Criminal Procedure in carrying out the relevant constitutional provisions, which prerogative the Constitution vests on Congress, and without delving into the practicability of the application of the one offense per complaint rule, the initial determination of which must be made by the House[93] which has yet to pass upon the question, the Court finds that petitioner’s invocation of that particular rule of Criminal Procedure does not lie. Suffice it to state that the Constitution allows the indictment for multiple impeachment offenses, with each charge representing an article of impeachment, assembled in one set known as the “Articles of Impeachment.”[94] It, therefore, follows that an impeachment complaint need not allege only one impeachable offense.

This was penned by Justice Conchita Carpio-Morales.

But the real meat of the proceeding was the cross-examination of Internal Revenue Commissioner Kim Henares. First, the prosecution asked questions. Then, there was the curious case of the defense trying to ask questions, but unable to get anywhere. The cross-examination makes for entertaining reading:

THE PRESIDING OFFICER. I give the pleasure to you to start the cross-examination now or not. It is your decision.

JUSTICE CUEVAS. If it will not be asking too much, Your Honor, I will start with my cross-examination.

THE PRESIDING OFFICER. Proceed.

JUSTICE CUEVAS. This is in compliance with the directive of the honorable Presiding Officer, Your Honor. With the kind permission of the honourable Court.

I noticed that you have identified and discussed quite a number of transactions allegedly entered into between the Coronas wherein the matter was brought to your attention, and within a week you have acted on it, am I right.

COM. HENARES. Yes, Your Honor.

JUSTICE CUEVAS. You dig dipper into those matters. You dig deeper into the capacity of the alleged buyer to pay the subject matter of the transaction, did I get you right?

COM HENARES. It is in the face of the returns, sir. I don’t have to dig deeper.

JUSTICE CUEVAS. No. You mean you did not examine anymore the examination made?

COM. HENARES. No, the income tax returns I retrieved and, therefore, I looked at the return and the CAR that was submitted, and based on that. That is why I said, we made an examination.

JUSTICE CUEVAS. Is this ordinary procedure that you adopt in your office?

COM. HENARES. Yes, Your Honor. For some of the cases especially net worth methods of investigation.

JUSTICE CUEVAS. So, you will be able to present before this Court transactions similar in circumstance with this in the next hearing of this case.

COM. HENARES. Sir, I don’t have to submit because we filed a case against Mr. Villarica under the same circumstance.

JUSTICE CUEVAS. But I am not asking you whether you filed the case or not. I am asking you will be able to proceed to produce before this court.

ATTY. LIM. Objection, materiality, Your Honor. I invoke materiality as legal ground.

THE PRESIDING OFFICER. Well, he is under cross-examination. Let the witness answer.

JUSTICE CUEVAS. Now, kindly tell this honourable court, even one, two or three transactions involving similar circumstance as this that you have acted upon within a week.

COM. HENARES. Yes, sir. Especially if a taxpayer does not pay any taxes at all. Then, it is a very simple investigation.

JUSTICE CUEVAS. No, you are not answering my question, Madam Commissioner. My question is, will you kindly tell this honourable court the cases that you have acted which are similar to the present case.

COM. HENARES. That is confidential information because my authority to disclose information is only limited to those in the subpoena.

THE PRESIDING OFFICER. But you are under cross-examination. The counsel is simply asking whether there are taxpayers similarly situated that also received a similar treatment.

COM. HENARES. Yes, sir.

JUSTICE CUEVAS. My question is, whether she could make of record those alleged cases, Your Honor.

THE PRESIDING OFFICER. If she knows. If you know.

MS. HENARES. Sir, I know, but I don’t have authority to divulge it because of Section 71 and Section 270 of the National Internal Revenue Code.

JUSTICE CUEVAS. But I heard you divulging a lot of transactions relative to income tax returns with respect to other persons in here other than the honorable …

ATTY. LIM. Misleading, Your Honor.

JUSTICE CUEVAS. We submit, Your Honor.

THE PRESIDING OFFICER. Leading questions are authorized.

ATTY. LIM. Misleading, Your Honor please

THE PRESIDING OFFICER. Misleading

ATTY. LIM. Yes, Your Honor.

THE PRESIDING OFFICER. Why misleading?

ATTY. LIM. It assumes as true a fact not stated by the witness or contrary to what the witness has stated, Your Honor.

THE PRESIDING OFFICER. What is the fact assumed by the counsel?

ATTY. LIM. The counsel is assuming that the witness has mentioned other taxpayer’s name which is not the case aside from those listed in the subpoena. There are no other names.

JUSTICE CUEVAS. I am in cross-examination, if Your Honor please

ATTY. LIM. I am objecting on the ground that it is misleading. You cannot ask misleading questions on cross.

JUSTICE CUEVAS. Are you directing me?

ATTY. LIM. The Chair. I request the Chair to so direct you.

JUSTICE CUEVAS. Thank you.

THE PRESIDING OFFICER. Just a minute, to clarify. Were you authorized by the President of the Philippines to reveal the income tax return of the persons mentioned by you in the course of your examination…

COM. HENARES. Sir, the order of the President said that I can disclose any information regarding the income of Chief Justice Corona from year 1992 to year 2010, Mrs. Cristina Corona from 1992 to 2010, Ma. Carla Corona Constantino from year 2000 to 2010, the husband, Constantino Castillo III , from 2000 to 2010, Ma. Czarina Corona from year 2005 to 2010, Francis Corona from 2005 to 2010 and all the CARs relating to Bellagio I in year 2009, all the CARs in relating to transaction of Mckinley Hills for a certain year. It is in the memorandum issued by the President and I have not disclosed anything that is not included in that order.

THE PRESIDING OFFICER. Well, the question of the defense counsel has been answered. Those are the other persons mentioned.

JUSTICE CUEVAS. Thank you, Your Honor. Now, I notice that your coming in here to testify as a witness was a pursuant to a subpoena issued by this honourable court, right?

COM. HENARES. Yes, sir.

JUSTICE CUEVAS. Were it not for the subpoena you would not have voluntarily come over and testify.

COM. HENARES. No, I would not.

JUSTICE CUEVAS. You would not. Alright. I suppose you must have been informed about the nature of the testimony and that will be listed from you in this trial, right?

ATTY. LIM. Your Honor, that is hypothetical.

THE PRESIDING OFFICER. Let the witness answer.

JUSTICE CUEVAS. This is a request for admission, Your Honor.

THE PRESIDING OFFICER. Let the witness answer. She is a very intelligent witness.

COM. HENARES. Sir, by reason of the subpoena, I would believe an intelligent person would know what he would be asked to testify on.

JUSTICE CUEVAS. You mean the subpoena states the matter that will be subject or covered in your testimony or you are merely referring to the documents that you have to produce. Kindly clarify.

COM. HENARES. Sir, otherwise I don’t think I will be needed to testify if not for those document that need to be presented.

JUSTICE CUEVAS. No, but that is not the question to you. Did you have knowledge or information as to what will be the subject of your testimony aside from producing the documents allegedly mentioned in the subpoena.

COM. HENARES. The knowledge I derived is from the subpoena sent to me, sir.

JUSTICE CUEVAS. Nothing more.

COM. HENARES. Nothing more.

JUSTICE CUEVAS. Alright. So am I right that you do not know Chief Justice Corona personally?

COM. HENARES. Actually I think I know him personally because he was my colleague in SGV for probably four months and he is a professor of Ateneo Law School although I was not under him. My husband was under him and my husband said he is one of his favourite students.

JUSTICE CUEVAS. Thank you. How about Mrs. Corona?

COM. HENARES. I do not know her personally but I always meet her when she accompanies Justice Corona.

JUSTICE CUEVAS. You are not acquainted with one another personally.

COM. HENARES. Acquainted as in I know she is Mrs. Corona and we say hi and we kiss each other in the cheek, yes, we are acquainted.

JUSTICE CUEVAS. How about the children that you mentioned in your direct examination? Are you acquainted with them personally?

COMMISSIONER HENARES. I’ve never met them personally. I may have met them but don’t know that they were them. I mean, they were never introduced to me.

JUSTICE CUEVAS. All right.

Now, one of the daughters that you mentioned appearing in the Deed of Sale is Czarina Corona. Do you know her personally?

COMMISSIONER HENARES. No.

JUSTICE CUEVAS. You do not know, therefore, that she is abroad for no less than 10 years?

COMMISSIONER HENARES. I was asked to testify only as the documents that I have …

THE PRESIDING OFFICER. No, the question is do you know her personally?

COMMISSIONER HENARES. No.

THE PRESIDING OFFICER. Okay.

JUSTICE CUEVAS. So, your answer is, you probably do not know that she is abroad for no less than a decade.

COMMISSIONER HENARES. It is not within my jurisdiction to know about that, Sir.

JUSTICE CUEVAS. I’m not asking you about your jurisdiction. I’m asking you a question personal to your …

COMMISSIONER HENARES. I already said I don’t know her so how can I know she’s here or not.

THE PRESIDING OFFICER. Just answer the question.

JUSTICE CUEVAS. Thank you.

THE PRESIDING OFFICER. Whether you know her or you do not know her.

COMMISSIONER HENARES. Yes, Sir. I answered that I do not know her. And I would not know where she is at this time.

JUSTICE CUEVAS. May I now continue, Your Honor.

THE PRESIDING OFFICER. Proceed.

JUSTICE CUEVAS. Prior to your taking the witness stand today, I suppose you must have been in conference with the lawyers for the prosecution.

COMMISSIONER HENARES. It is natural that they would get in touch with me, Sir.

JUSTICE CUEVAS. No, but you do not answer my question. Were you ever in conference with them? I’m not asking you whether you were in touch.

COMMISSIONER HENARES. Yes, Sir. Of course.

JUSTICE CUEVAS. Who in particular? Congressman Tupas?

COMMISSIONER HENARES. I met him, yes, Sir, in one of the meetings.

JUSTICE CUEVAS. So, he conferred with you in connection with this case?

COMMISSIONER HENARES. With regard to the subpoena that they requested the Senate court to issue.

JUSTICE CUEVAS. How about the private prosecutor?

COMMISSIONER HENARES. Yes, Sir.

JUSTICE CUEVAS. Also?

COMMISSIONER HENARES. Yes, Sir.

JUSTICE CUEVAS. And what was the coverage of your examination today were matters you discussed with them?

COMMISSIONER HENARES. Yes, Sir.

JUSTICE CUEVAS. All right.

What did they tell you, that they will be asking you in connection with the alleged impeachment complaint filed against Chief Justice Corona?

COMMISSIONER HENARES. They told me that I have to present all the documents that they are requesting for, and that I will testify with regard to the contents thereof.

JUSTICE CUEVAS. I suppose they also informed you about the expectation on the subject that would be the subject matter of your examination. Or they did not tell you about that?

ATTY. LIM. What expectation? That’s a legal ground, Your Honor, please.

JUSTICE CUEVAS. Submitted, Your Honor.

THE PRESIDING OFFICER. Counsel must clarify. What the term used, so that it will be understandable by the witness.

JUSTICE CUEVAS. All right. Now, when they talked with you, did they inform you as to what their purpose was when they conferred with you in connection with this impeachment case?

COMMISSIONER HENARES. They told me that they are prosecuting an impeachment case against Chief Justice Corona.

JUSTICE CUEVAS. I suppose they also told you about what questions they will be propounding to you, is it not?

COMMISSIONER HENARES. They told me that I will be asked to present the documents and the content thereof.

JUSTICE CUEVAS. Nothing more?

COMMISSIONER HENARES. Nothing more.

JUSTICE CUEVAS. So, when they started—when questions were propounded to you on matters that allegedly you know personally, that was not covered in your conference?

ATTY. LIM. What matters? There you are again, Your Honor. The records will show that it can be anything under the sun, Your Honor.

THE PRESIDING OFFICER. Let the witness answer. She is very intelligent. That matters is a very common term.

ATTY. LIM. Thank you, Your Honor.

COMMISSIONER HENARES. Sir, I only testified as to the documents and the content of the documents, and I did not testify on anything else. There’s nothing to discuss, Sir.

JUSTICE CUEVAS. So, when they conferred with you, they never mentioned to you about their alleged impeachment complaint brought against the Chief Justice?

ATTY. LIM. Misleading.

COMMISSIONER HENARES. It is a public knowledge. I read the newspaper everyday and I watch news every evening, and therefore, any person knows that there’s an impeachment proceeding.

JUSTICE CUEVAS. All right. Yes, but that is not my question whether you know or not. My question to you is, did they tell you what to expect to question you in connection with your examination now?

COMMISSIONER HENARES. Sir, We never even discussed what their objective is, because I think, everyone knows there’s an impeachment proceeding and they’re the prosecutor, and they want me to present this evidence, this document. So, there is no discussion of what it is they want to because I do not think, there is even a need to discuss that anymore.

JUSTICE CUEVAS. They did not go any further except that you bring the documents they wanted you to produce. Is that right?

COMMISSIONER HENARES. Yes, Sir.

JUSTICE CUEVAS. They did not even asked you or tell you what this impeachment case is about. True, there is an impeachment case but did they tell you what this impeachment case is about? Also no.

COMMISSIONER HENARES. Sir, no more. It is judicial …

JUSTICE CUEVAS. No more.

COMMISSIONER HENARES. It is public knowledge.

JUSTICE CUEVAS. No.

COMMISSIONER HENARES. It is.

JUSTICE CUEVAS. What I am asking you is …

COMMISSIONER HENARES. That is why there is no need to even talk to me, what the impeachment proceeding is all about, because it is public knowledge, I am a lawyer, I can read, and I can get copy of the impeachment complaint, it is in the—I can have access to that and I guess, to be …

JUSTICE CUEVAS. Alright.

COMMISSIONER HENARES. … Commissioner of Internal Revenue, I should know reading comprehension, Sir.

JUSTICE CUEVAS. So, you have read news reports about this, in the newspaper and also television also.

COMMISSIONER HENARES. Yes, Sir, that is part of my habit.

JUSTICE CUEVAS. Alright. And you knew, and by this time, you must have been informed about the grounds of the impeachment, right?

COMMISSIONER HENARES. Yes, Sir.

JUSTICE CUEVAS. Will you tell us, what you were able to retain when you hear it in talk shows, in the TV and newspaper.

COMMISSIONER HENARES. Well, first, that—because it has eight grounds, some of the ground is that he should not have accepted the midnight appointment, because it is a violation of the Constitution.

Second, that he is biased by the vote that he voted. And I think, there is culpable violation of the Constitution and all those things. And then, the non-disclosure of statement of assets, liabilities and net worth.

Those are the things that I can remember.

JUSTICE CUEVAS. Yes. The way you made your narration, I am inclined to believe that you never had the impression that in this case, a problem of illegally acquired wealth never surfaced.

COMMISSIONER HENARES. Well, for me, Sir, when we talk of statement of assets, liabilities and networth, it is inherent in that document that what we are talking about is illegally obtained wealth, because otherwise, there is no need for anyone to even submit a statement of assets, liabilities and networth. It would be just a piece of paper that anyone can just file and it is just a tedious process, so …

JUSTICE CUEVAS. So, when you came over, in obedience to that subpoena, you knew, you will be testifying in connection with the alleged illegally acquired wealth of the honorable Chief Justice Corona, or you do not know?

COMMISSIONER HENARES. I will be testifying as to what income has he reported, what income has the wife, the daughters, the son-in-law, the son, has reported in their tax history. And also, I will be asked about transfers of properties.

JUSTICE CUEVAS. Now, I understand that Chief Justice Corona is now being sued, pursuant to an article of impeachment for failure to file and make public his SALN, …

ATTY. LIM. Your, Honor, please.

JUSTICE CUEVAS. I am not yet through, Your Honor, please.

By this time, the usually unflappable Justice Cuevas seemed tense, as the Senate President observed:

THE PRESIDING OFFICER. Let the question be finished.

Do not be nervous counsel.

JUSTICE CUEVAS. Did you come to know about that?

THE PRESIDING OFFICER. We have plenty of time to respond.

ATTY. LIM. Your Honor, please, I object on the ground that it calls for a legal opinion or deals with legal conclusions which is the function of the court.

THE PRESIDING OFFICER. Since the Commissioner of Internal Revenue is just waiting to answer …

JUSTICE CUEVAS. You asked her about a lot of legal battles, now I am asking her what she knows.

COMMISSIONER HENARES. Sir, what is the question again?

JUSTICE CUEVAS. May we request for a reading of the question from the—wala, ah wall.

THE PRESIDING OFFICER. Restate the question.

JUSTICE CUEVAS. I will do as so ordered, Your Honor, as directed.

When you came over, you already knew that one of the matters that will be dealt in your examination will be the issue of whether they had filed the statement of assets and liabilities. I am referring to Chief Justice Corona.

COMMISSIONER HENARES. Sir, I think, everyone knows because everyone keep on arguing about that article, sir. Yes, sir, I know, of all the arguments that have been …

THE PRESIDING OFFICER. I admonish the witness to answer the question. Understand the question and answer the question as precisely as concisely as you can do it.

JUSTICE CUEVAS. That is why that necessitates a comparative study of Chief Justice Corona’s statement of liabilities in relation to other documents in your possession as Commissioner of Internal Revenue, am I right?

COM. HENARES. Sir, I don’t have the statement of liability and net worth of Chief Justice Corona. It is not submitted to the Bureau of Internal Revenue. What I was asked to provide are only his income tax return or income tax payment, if any.

JUSTICE CUEVAS. Correct. Thank you for the information. So, you have never seen any statement of assets and liabilities of the respondent Chief Justice Corona, am I right?

COM. HENARES. Today, I have seen it already.

JUSTICE CUEVAS. No, no.

COM. HENARES. You said I have never seen. I have seen it today. As of today, I have seen it, sir.

JUSTICE CUEVAS. Only today.

COM. HENARES. No, no. As of today, I have already seen the statement of assets and liabilities and net worth.

THE PRESIDING OFFICER. Just to clarify. When exactly were you able to see the SALN of the respondent for the first time?

COM. HENARES. When it was given to me by a media person after the SALN was presented to me.

THE PRESIDING OFFICER. A media person.

COM. HENARES. Yes, sir. When I was waiting for Thursday when I was called.

THE PRESIDING OFFICER. When was that?

COM. HENARES. January 19.

THE PRESIDING OFFICER. January 20?

COM. HENARES. 19, sir. I was here on January 19, sir, in the holding room.

THE PRESIDING OFFICER. Proceed, counsel.

JUSTICE CUEVAS. So, this statement of assets and liabilities that is now the center of discussion now, have never been discussed by you with the prosecution panel, am I right, because this is the first time you saw it?

COM. HENARES. Yes, sir. No, the first time I saw it was January 19.

JUSTICE CUEVAS. Yes.

COM. HENARES. Yes, sir.

JUSTICE CUEVAS. That was when the case was already filed.

COM. HENARES. Yes, sir.

JUSTICE CUEVAS. And that was when the case was being tried already, the impeachment case, is that not right?

COM. HENARES. Yes, sir.

JUSTICE CUEVAS. So, you have no idea of what is the issue about this alleged statement of assets and liabilities of the Chief Justice?

COM. HENARES. Sir, I have to idea in the sense that I don’t know what his assets and liabilities are. Yes, sir.

JUSTICE CUEVAS. Kindly tell the honorable court whether that was the subject of your discussion with the prosecution panel at any time before you took the witness stand.

COM. HENARES. We did not discuss the SALN, we discussed the CARs, the income tax return and the other, like the alpha list.

JUSTICE CUEVAS. So, there was never a query coming from them asking you whether based on the statement of assets and liabilities together with the documents you have examined, there is a discrepancy or there is something not included there, am I right?

COM. HENARES. Yes, sir. They never asked me that question.

JUSTICE CUEVAS. Now, when you discovered or when you were informed that you will be taking the witness stand, this is the time that you asked permission from the honorable President of the Republic of the Philippines …

COM. HENARES. Pardon, sir. May I …

JUSTICE CUEVAS. Alam ninyo, Commissioner, matanda na rin ako eh kaya makalimutin ako eh. All right. When you came to know that you will be testifying, that was the time when you asked authority from the President of the Republic of the Philippine to allow you to come over, testify and bring the documents required in the subpoena.

COM. HENARES. When I got the subpoena, when my office got the subpoena on January 19, I was in Tacloban … 18, I was in Tacloban, and the subpoena said I have to appear here on January 19. So, I appeared here without any documents just to comply with the subpoena and I asked that I be excused so that I can gather all the documents, sir. But on the 18th, when I got the subpoena, I already ordered my people to start preparing it, and then while I was here waiting, January 19, I also ordered the drafting of a memorandum to His Excellency, President Aquino, requesting for an authority.

JUSTICE CUEVAS. So that was after a couple of days when you had been here…

COM. HENARES. No, that first day I am here.

JUSTICE CUEVAS. The next day.

COM. HENARES. The first day I was here, that afternoon after being excused, I left here and went to my office and drafted my memorandum and faxed it to the President.

JUSTICE CUEVAS. Alright. And that was the time when the authority was given to you.

COM. HENARES. The authority was given to me the very next day, January 20.

JUSTICE CUEVAS. I notice it was not an authority coming personally from the honourable President of the Republic of the Philippines but by the Executive Secretary, right?

COM. HENARES. Yes.

ATTY. LIM. We object, Your Honor. It says by authority of the President.

JUSTICE CUEVAS. That was precisely my question.

ATTY. LIM. That is by the President himself.

THE PRESIDING OFFICER. Let the witness answer.

COM. HENARES. It was issued under the…

THE PRESIDING OFFICER. Just a minute. You are all too jumpy.

COM. HENARES. It was signed by the Executive Secretary under the order of the President.

JUSTICE CUEVAS. Right. Alright. Was there any instance prior or after that authority was issued that you have a talk with the honorable President of the Republic of the Philippines.

COM. HENARES. No, I have no opportunity to talk to him.

JUSTICE CUEVAS. So it is safe to presume that when the President knew about this he never talk to you at any time.

COM. HENARES. From the time I wrote the memo, no. I coursed it through the Deputy Presidential Legal Counsel who is in his office.

JUSTICE CUEVAS. And did you have a talk with the honorable Executive Secretary about your appearing here?

COM. HENARES. No, sir.

JUSTICE CUEVAS. With any high government official in connection with your coming over as a witness for the prosecution.

COM. HENARES. I informed my Secretary of Finance that I got a subpoena and that I will be asking for an order from the President to order me to bring those documents.

JUSTICE CUEVAS. Did he tell you, go ahead, sundin mo iyang subpoena, mag-appear ka, tumestigo ka at sabihin mo ang katotohanan.

COM. HENARES. Oho.

JUSTICE CUEVAS. Did he also say that durugin mo na si Corona kung maaari.

COM. HENARES. Wala ho siyang sinasabing ganoon.

JUSTICE CUEVAS. A wala siyang sinabi. So you were holding your punches in connection with the subject matter of your testimony because there was no such statement on the part of the higher-up of Malacañang.

COM. HENARES. Sir, I do not hold punches, I only do my job and I am a very professional person. Even if you are my worst enemy, I will just do my job. If you are complying, then I don’t…Pardon?

JUSTICE CUEVAS. I said even if you are my worst enemy. Please do not consider me an enemy. I am just discharging the duties or the functions of a defense lawyer, Madam Witness.

COM. HENARES. Yes, sir. I am only here discharging my function as Commissioner of Internal Revenue.

Not having been able to get anywhere with his previous line of questioning, Justice Cuevas next did something quite curious. Recall that previously, Senator Santiago had asked if the BIR Commissioner would be presented as an expert witness, or one merely to authenticate the documents subpoenaed. Apparently rattled, the prosecution said the witness would merely attest to the information contained in the submitted documents. But here, Justice Cuevas starts on a line of questioning that essentially puts forward the BIR Commissioner as an expert witness on tax matters –and also, a line of questioning that directly engages the witness on questions on Article II, 2.4, that the defense itself had wanted dismissed out of hand! Here is what transpired:

JUSTICE CUEVAS. Now, examining the SAL of Chief Justice Corona which you saw when you were here already to testify, based thereon, kindly tell the honorable court whether you notice any discrepancy or falsity in the said SAL.

COM. HENARES. I noticed a lot of discrepancy in the SAL that I saw, that the media gave me because I measure it in relation to the SAL I have to submit.

JUSTICE CUEVAS. By the way, is your office connected in any manner with the filing of the SALN?

COM. HENARES. Only on our own SALN and in relation to when we audit and examine government official, we request for statement of assets and liabilities and net worth.

JUSTICE CUEVAS. In other words, it is very clear that insofar as the SALN is concerned of any government official including the impeached Chief Justice, that is not a function pertaining to your office.

COM. HENARES. Sir, I never said it is my function.

JUSTICE CUEVAS. I am not saying that you said, I am asking you whether it is part of your…

COM. HENARES. It is not. It is only a function of my office in relation to when I file or assess tax deficiency or tax evasion cases.

JUSTICE CUEVAS. Alright.

THE PRESIDING OFFICER. I have just one point to clarify. Is this the first time that you ask for authority from the President to release the income tax return of taxpayers?

COM. HENARES. Yes, sir, because this is the first time I’ve ever been subpoenaed to do so.

THE PRESIDING OFFICER. You do not know whether this kind of authorization which is lodged on the President is covered by authority of the President authority of the Executive Secretary?

COMMISSIONER HENARES. Sir, the BIR has had in past on our record authority granted by the President, signed by the Executive Secretary.

THE PRESIDING OFFICER. So, that’s on record that it has been a practice that release of income tax returns was done by the signing authority of the Executive Secretary by authority of the President?

COMMISSIONER HENARES. Yes, Sir.

THE PRESIDING OFFICER. Proceed.

JUSTICE CUEVAS. All right. So, the way I understood your statement now, it is my understanding that so far as the SALN of any person, including the impeached public respondent here, your office has nothing to do with it?

COMMISSIONER HENARES. To the extent that I just described, no, I don’t have anything to do with it.

JUSTICE CUEVAS. All right. Neither does your office take charge of the collection, compiling and taking care of the SALN? It is entirely foreign to your function as Bureau of internal Revenue Commissioner?

COMMISSIONER HENARES. Only for our own employees, we collate and keep record of our SALN.

JUSTICE CUEVAS. How about other government officials? I’m not asking you about your employees. What about government officials?

COMMISSIONER HENARES. It is filed not with us.

JUSTICE CUEVAS. But it is filed their respective offices to whichever they belong?

COMMISSIONER HENARES. Yes, Sir.

JUSTICE CUEVAS. Is that right?

COMMISSIONER HENARES. Yes, Sir.

JUSTICE CUEVAS. So much so that if you have no case involving it, you will not come to know whether it was filed, whether the entries therein appearing are correct, authentic and believable?

COMMISSIONER HENARES. Yes, Sir.

JUSTICE CUEVAS. I think that will be all in the meanwhile, Your Honor, with the witness. I will ask permission to be allowed to continue my cross-examination because I have to deal with a lot of all the documents.

THE PRESIDING OFFICER. All right. The manifestation of the counsel for the defense is noted and recorded. (Gavel)

The problem, by this time, was that Justice Cuevas had opened the very door he’d tried to keep barred for so long. So more questions came in:

SEN. ESCUDERO. Just a few questions, Mr. President.

First question is really to enrich jurisprudence on this matter. Madam Commissioner, how would you define an assessment? Ano po ba ang ibig sabihin ng assessment?

COMMISSIONER HENARES. When somebody file—An assessment is a letter written by the Bureau of Internal Revenue to the taxpayer telling them that either they have not paid the taxes and therefore this is their tax liability, or what they have filed is deficient, and therefore there are more taxes that they have to pay.

SEN. ESCUDERO. Sinulatan niyo na ho ba ng assessment si Chief Justice Corona, yung kanyang asawa, ang kanyang mga anak?

COMMISSIONER HENARES. Hindi pa ho.

SEN. ESCUDERO. Again, Mr. President, we already admitted this into evidence but only to enrich jurisprudence.

The section cited by the honourable Commissioner is Section 71 of the Tax Code says, “After the assessment shall have been made,” so on and so forth, and that’s where the authority of the President comes in for it to be released, because the ITR is already now with the Office of the Commissioner. But correct me if I’m wrong, before that, the ITRs and other documents are not yet with the Office of the Commissioner and somewhere—siguro nasa baba, ‘di ho ba?

Again, we already admitted it into the records. It’s part of the records of this case. Gusto ko lang ho maliwanagan para in subsequent cases, klaro ho yung authority na ibinibigay.

COMMISSIONER HENARES. Because if you look at our tax system, it can be argued that when you filed a return, it is a self-assessment. It is a voluntary assessment on yourself.

But, aside from Section 71, it’s said here, rules and regulations, there are rules and regulation No. 33 which is an old, old rule since 1992, and which has also been cited in the Supreme Court on whom versus somebody, that says that, when there is a proceeding where government interest is involved, we can actually present the document without the order of the President.

SEN. ESCUDERO. I agree with you, Madam Commissioner. You can do that under perhaps Section 270 or another section of the Tax Code. But for this particular instance, you quoted in your memorandum to the President in response to the subpoena, Section 71 and not any other section of the Tax Code.

Again, I just want to be clarified that we’re sure that next time we do it, we would be doing it properly also.

COMMISSIONER HENARES. Sir, if I may recall, I beg the indulgence of the Senate President, I think, when I was excused, the Senate President mentioned that I should make sure that I comply with Section 71 and Section 270, and therefore, just so that it will not delay the proceeding, I went ahead—it is like an overkill—I just went ahead and got those order to make sure…

SEN. ESCUDERO. That you comply with our subpoena.

COMMISSIONER HENARES. Yes, Sir.

SEN. ESCUDERO. But strictly speaking, under any other circumstance, the permission of the President can only be given after assessment shall have been made.

COMMISSIONER HENARES. That is something that has not been resolved by jurisprudence.

SEN. ESCUDERO. Thank you, Ma’am. My next question, Mr. President, is hindi ko maintindihan actually iyong tinatanong ni Atty. Cuevas kanina pero para malaman ko lang iyong significance, pag abroad po ba ang isang Pilipino, kailangan niyang mag-file ng income tax return?

COMMISSIONER HENARES. Sir, kapag—ganito ho, kapag kayo ho ay overseas Filipino worker, ibig sabihin noon, may kontrata kayo na employer-employee arrangement, exempted ho kayo sa pagbabayad ng buwis sa Pilipinas kasi nagbabayad ho kayo ng buwis sa ibang bansa.

Iyon ho iyong—kasi hindi ho porke nasa abroad kayo ay exempted na ho kasi kayo.

SEN. ESCUDERO. So, OFW lang ang exempted maski na—kapag hindi ka OFW, kailangan mong mag-file?

COMMISSIONER HENARES. Oho.

SEN. ESCUDERO. Next, I have encountered several situations with office before your term, in fairness, Madam commissioner, na sinasabi ng BIR, no record on file pero hindi pa naman kumpleto kasi iyong computerization at that time, may I ask the status of that?

When you say no record on file, is that full proof and 100% or is it possible that there is an ITR somewhere there na hindi pa napapasok sa computer?

COMMISSIONER HENARES. There is a slim possibility, Sir, especially for early returns, for the earlier year returns, but not for the more recent return, and especially, the possibility is not there if he is never registered as a taxpayer.

SEN. ESCUDERO. As a final question, Mr. Presiding Officer, may I ask, what taxes, aside from capital gains, nabanggit nyo na po iyon, ano po iyong mga buwis na pwede nyong bayaran na nabayaran na, na hindi kailanganang ideklara sa ITR.

Pasensya na ho kayo, isa sa mga pinakamahina kong subject ang tax noon, so, kindly educate me also on this.

COMMISSIONER HENARES. In relation to income ho ano?

SEN. ESCUDERO. ITR.

COMMISSIONER HENARES. Kung subject na ho siya sa final tax, katulad ng interest sa bank deposit, ito ho, interes na ho sa bank deposit, kasi kapag interes ho sa ibang bagay, kailangan pa rin ho nyong ideklara.

Capital gains stock, kasi mayroon kayong idinedeklara sa ibang returns.

SEN. ESCUDERO. Tama.

COMMISSIONER HENARES. Stock transaction tax sa stock exchange.

SEN. ESCUDERO. Also.

THE PRESIDING OFFICER. Capital gains or real estate.

COMMISSIONER HENARES. Yes, capital gains.

THE PRESIDING OFFICER. On capital assets.

COMMISSIONER HENARES. Oho, nakadeklara iyan ho sa another returns. So, basically ho, those are the …

SEN. ESCUDERO. So, itong tatlong ito, kapag kumita ka doon, hindi mo kailangang ideklara sa ITR mo dahil may ibang forms na sina-submit sa BIR para doon.

COMMISSIONER HENARES. Oho, iyon hong withholding sa interest on bank deposit. Dapat ang bangko, mayroon hong ipinapadala ho sa amin para hong alpha list rin ho iyon.

SEN. ESCUDERO. At sa kaso naman ng shares of stocks, iyong stock exchange o iyongb broker.

COMMISSIONER HENARES. Oho, iyong sa stock exchange, iniimbestigahan naming ho iyon in regular interval ho.

SEN. ESCUDERO. Thank you, Mr. President. Thank you, Madam Commissioner.

THE PRESIDING OFFICER. The Gentleman from Pampanga.

SEN. PANGILINAN. Thank you very much, Mr. President.

Just a few questions sa ating commissioner. Magandang hap on.

COMMISSIONER HENARES. Magandang hapon ho.

SEN. PANGILINAN. Noong isang araw, nabanggit po ninyo, Commissioner Henares, na Biyernes lamang ninyo nabuo iyong mga dokumento para—iyong mga dokumento o tax records ng mag-asawang Corona at iyong mga anak, tama po ba iyon?

COMMISSIONER HENARES. Actually, it went all the way ho to Monday …

SEN. PANGILINAN. Hanggang Lunes.

COMMISSIONER HENARES. Oho.

SEN. PANGILINAN. In other words, fairly recent. Bago noon hindi nyo pa nabuo iyong mga tax records na ito.

COMMISSIONER HENARES. Oho, hindi pa ho.

SEN. PANGILINAN. Tinatanong ko iyon dahil gusto ko ring dagdagan iyong unang punto na nabanggit ni Senator Escudero, mayroong A-list, possible ba na iyong nasa A-list, ay mag-file ng separate income tax return na hindi nyo—o wala sa record nyo, o hindi napaabot sa Office of the Commissioner?

COMMISSIONER HENARES. Kaya ho kung makikita nyo ho ninyo iyong certification naming, wala ho siyang return kaya we have to go to more deeper step. Because we know he is employed. So, how can he have no return? So, we went to the next step of getting the alpha list. So, that is how the process goes.

SEN. PANGILINAN. So, nakita natin mayroon siyang pangalan doon sa alpha list from 2007 up to 2011, tama ho ba?

COM. HENARES. 2006 to 2010.

SEN. PANGILINAN. Yes. Ang tanong ko, dahil sabi ninyo kanina, maaaring may mga income tax return na hindi pa nare-retrieve. Minimal. Sabi ho ninyo kanina sa interpellation kay ..

COM. HENARES. Hindi. Tanong ho niya kung may possibility ba ho na hindi ho kami nakakuha noong income tax return.

SEN. PANGILINAN. That is right. Ang sabi ninyo, minimal.

COM. HENARES. Yes, sir.

SEN. PANGILINAN. So, is it possible na mayroong income tax returns ang mag-asawang Corona na hindi ninyo nalikom at maaaring naririyan pa? In other words, to prove that mayroon siyang ibang source of income apart from iyong dokumento ninyo sa A list.

COM. HENARES. As far as we are concerned, we checked everywhere, so, of course it is a possibility, nobody can foreclose that, but upon diligent search, we did not really get an ITR. Hence, we went one step further because we cannot believe that there is no income tax return. Because we know that he is employed. So, we really double checked and then since there is none, we went and looked for the alpha list, otherwise, we would not have gone for the alpha list.

SEN. PANGILINAN. From the alpha list, wala ng ibang record kayong na-secure na mayroong ibang tax records ang nasasakdal.

COM. HENARES. Maliban ho doon sa CAR.

SEN. PANGILINAN. And the CAR, sorry. Apart from the alpha list and the car.

COM. HENARES. Oho.

SEN. PANGILINAN. But, as you said, potentially, possible, there could be an ITR there somewhere that you have not been able to retrieve. And assuming it is out there, I mean hypothetically, would you still be able to retrieve it, sabihin na natin, given the next few days, the next few weeks, with a more diligent search?

COM. HENARES. We already certified that there is no return. Normally, it is like this, sir. If there is a return out there, then, it must be a no payment return. No taxes were paid on that return. Because all returns that have payments will automatically be tagged in our system. If there is any return out there, the tax due is zero. So, it would be very, very minimal, sir.

SEN. PANGILINAN. Okay. And this is another point altogether, and I beg the indulgence of our colleagues here. But I was just interested and curious. Sabi ninyo, walang ni-remit ang Supreme Court na A list from what year to what year?

COM. HENARES. Walang sinabmit ho.

SEN. PANGILINAN. Na A list.

COM. HENARES. Alpha list ho from 2002 to 2005.

SEN. PANGILINAN. Ano ang ibig sabihin noon, from 2002 to 2005, hindi sila nag …

COM. HENARES. Hindi ho. May mga taxpayer ho na nagwi-withhold sila at nire-remit niya iyong withhiolding tax, whether tama iyon o hindi, we have to check. But, they are remiss in the reporting requirement. This is a reporting requirement. But they feel that sometimes it is not necessary. They think it is not necessary and the tax code kasi it only provides a penalty. Some people will say, I will just be penalized.

SEN. PANGILINAN. But that doesn’t mean that the taxes that were withheld were not turned over. Hindi ibig sabihin iron.

COM. HENARES. Hindi ho. Hindi ho ibig sabihin iyon.

SEN. PANGILINAN. Maraming salamat. Salamat po.

SEN. SOTTO. Mr. President, Senator Cayetano wishes to be recognized, then Senator Drilon, and then thereafter, Senator Ralph Recto, Mr. President.

THE PRESIDING OFFICER. In that order.

SEN. CAYETANO (A.). Thank you, Mr. President. Ma’am, magandang hapon po.

COM. HENARES. Magandang hapon ho.

SEN. CAYETANO (A.). Just some questions to clarify. Sabi ninyo po may nakita kayong discrepancies sa SALN ng Chief Justice, tama po ba iyon? Observation iyan.

COM. HENARES. Oho.

SEN. CAYETANO (A.). What do you mean discrepancies?

COM. HENARES. Well, first, sir, the most important thing in the SALN is the acquisition cost column. The SALN of the Chief Justice he does not fill up the acquisition cost column and secondly, based on the CARs that were issued, there were properties that should have been registered on a certain year but it was not registered, it was registered subsequently. And then there were properties that were not registered.

SEN. CAYETANO (A.P.). Okay. Let us stop there because as the defense had been pointing out it is important that competent iyong isang person mag-testify on that matter and I wouldn’t have asked you kung hindi ka tinatanong din ni Justice Cuevas. But my point is and to be fair to everyone, just because may discrepancies, hindi ibig sabihin na illegal ito o mali na ito. Meaning it could be but it could also be explainable. Correct?

COM. HENARES. It is possible, sir.

SEN. CAYETANO (A.P.). Yes. Meaning you are just giving your observation that you saw it at sa tingin mo may discrepancies. But to be fair to the side of the Chief Justice, it’s possible that it can be explained.

COM. HENARES. Yes, sir, it’s for him to explain.

SEN. CAYETANO (A.P.). For example, sabi ninyo po hindi inilagay iyong mode of acquisition. Kasi ang alam ko diyan you can have a choice pagdating sa price you can either put the appraised or assessed value or you can put the acquisition cost. Ang nakalagay kasi dito sa SALN niya mode of acquisition hindi iyong price noong acquisition. But we are not here to argue this. I just wanted to point out going to another point that the point is you have a presumption of innocence but then if you can show that there is property not included here or even if it is included pero hindi mo maipakita nasa income mo kaya mong bilhin iyon, then the presumption shifts, hndi ba? Nagiging presumption na meron kang ill-gotten wealth and then the defense can now show na, can try to explain and if they can explain kung saan galing ang pera at illegitimate iyong pera, then na-overthrow ulit ang presumption. So my point, ma’am, kasi kanina nag-testify kayo na iyong isang daughter was si Czarina nagkaroon kayo ng investigation dahil sabi ninyo wala siyang income pero nakabili ng property.

COM. HENARES. Oho.

SEN. CAYETANO (A.P.). Okay. Did you ask her or give her opportunity to answer at the stage of your investigation it didn’t call for that yet?

COM. HENARES. It just came to our attention while we were preparing for the impeachment case and I didn’t have any opportunity to go back to my office and do my work so I don’t have the opportunity.

SEN. CAYETANO (A.P.). Yes. So you were simply testifying on your personal knowledge and the usual course of the procedure when something is brought up to your knowledge.

COM. HENARES. Yes, sir.

SEN. CAYETANO (A.P.). Yes. But meaning, to be fair again to the defense and to everyone, there is a possibility when she is asked to explain, she will be able to explain.

COM. HENARES. There is a possibility, sir.

SEN. CAYETANO (A.P.). And, for example, for those possibilities, halimbawa, ma’am, pagka kayo ba ay kumita sa stock market halimbawa, di ba final tax iyon? Hindi ka naman magpa-file talaga ng income tax doon, di ba?

COM. HENARES. Oho. Pero ang problema ho doon is dapat ho meron kayong unang capital e wala naman ho siyang income.

SEN. CAYETANO (A.P.). And are you familiar with the presidential decree of President Marcos which prohibits gifts to public officials?

COM. HENARES. Yes, sir.

SEN. CAYETANO (A.P.). Are you familiar with the exception?

COM. HENARES. Not really, sir.

SEN. CAYETANO (A.P.). To family members’ donations of small amounts or reasonable amounts are allowed. So if for 18 years binibigyan mo ang anak mo ng P500,000 a year for 18 years, then you would have P1.8 million when you are already 18 years old. So I am not giving or testifying for anyone here. I am just saying balansehin natin that tama po iyong sinabi ninyo. There has to be capital.

COM. HENARES. Yes, sir.

SEN. CAYETANO (A.P.). But I also like to point out that that is why the burden is on the prosecution to show that there in fact properties na hindi maipaliwanag at kung maipakita nilang hindi nga maipaliwanag, nagsi-shift na ang burden na ito and I just didn’t like to end the day na you did your job well and you testified in your personal knowledge but then hindi natin makumpleto iyong picture just on your testimony that is why I wanted to clarify those matters.

Lastly, Your Honor, you got authority from the President to testify on the income tax returns, correct?

COM. HENARES. To bring and to testify on it, right?

SEN. CAYETANO (A.P.). Can a taxpayer waive his right Meaning, ako, sabihin ko, halimbawa, chinallenge ng media, o lahat ng prosecution pakita niyo rin ang SALN niyo. Lahat ng judges, pakita niyo rin. O, BIR niyo ilabas. Can we write you a letter and say na ipakita niyo?

COMMISSIONER HENARES. Yes, Sir.

SEN. CAYETANO (A.). Can we waive it in favour of a different person? I waive it na sinasabi ko, the Secretary of the Senate is authorized to look at my income tax.

COMMISSIONER HENARES. Yes, Sir.

SEN. CAYETANO (A.). Okay.

COMMISSIONER HENARES. In effect, you’re telling me to allow him to look at …

SEN. CAYETANO (A.). Correct. Again, to be fair, Your Honor, let me just read the statement behind the—which was signed by public officials when they do the SALN. “I hereby authorize the Ombudsman or his duly representative”—mali yata Inggles—dapat duly—his duly representative—binabasa ko lang po ito ha, hindi ko ‘to English—“to obtain and secure”—hindi, eto po ang nakalagay e—I hereby authorize—I’m reading behind the Exhibit G-1—“I hereby authorize the Ombudsman or his duly representative to obtain and secure from all appropriate government agencies including the Bureau of Internal Revenue such documents that may show assets, liability, net worth, business interest and financial connections to incluse”—hindi include—“to incluse those of my spouse and unmarried children below 18 years of age living with me in my household covering previous years to include the years I first assumed office in government.”

I’m saying this because, apparently, hindi unusual na tingan ang SALN at tingan ang tax records ng isang public official. In fact, baligtad. Dapat tininingnan ng Ombudsman at dapat may nagbabantay dahil ito magiging basehan kung tapat ang isang public official or kung siya’s nagpapayaman.

COMMISSIONER HENARES. Oho. Parati ho kami hinihingan ng Ombudsman ng SALN namin at tax return.

SEN. CAYETANO (A.). Thank you, Mr. President. My time is up. I have a number of other questions but let me give way to the other Senator-Judges.

THE PRESIDING OFFICER. I just want to clarify one point. Madam Commissioner, just for the information of this court, when you do a net worth method of investigating any taxpayer, you use acquisition process, don’t you?

COMMISSIONER HENARES. Yes, Sir.

THE PRESIDING OFFICER. Not the fair market value?

COMMISSIONER HENARES. Yes, Sir.

THE PRESIDING OFFICER. Acquisition cost against liabilities …

COMMISSIONER HENARES. Real liabilities, Sir.

THE PRESIDING OFFICER. … and income?

COMMISSIONER HENARES. Yes, Sir.

THE PRESIDING OFFICER. Okay. Thank you.

SEN. SOTTO. Senator Drilon, Mr. President.

THE PRESIDING OFFICER. The Gentleman from Iloilo.

SEN. DRILON. Madam witness, ..

COMMISSIONER HENARES. Yes, Sir.

SEN. DRILON. … for many of us, we heard of the alpha list for the first time only yesterday. And from the way we understood your testimony, where the income is only from one source, then it is the employer who, in effect, files the income tax return, and the taxpayer need not file an income tax return.

COMMISSIONER HENARES. Yes. If the income is from one source and that withholding tax are properly withheld …

SEN. DRILON. Yes.

COMMISSIONER HENARES. … then the annual alpha list will take the place of the income tax return and person need not file an income tax return.

SEN. DRILON. So that if there are other sources of income, you have to file an income tax return and you have to pay the taxes, if any.

COMMISSIONER HENARES. Yes, Sir. If there are other sources of income, or if the taxes were less than what you have to pay, you have to file an income tax return.

THE PRESIDING OFFICER. With the permission of Senator Drilon.

Withholding applies to bonuses and allowances?

COMMISSIONER HENARES. Yes, Sir.

THE PRESIDING OFFICER. Will the party paying the bonus and the allowances will have to …

COMMISSIONER HENARES. Yes, Sir. All the exemption is up to P30,000, and for a government official, it’s the RATA, representation allowance and transportation allowance, and the PERA. Those are the only exemptions, Sir.

THE PRESIDING OFFICER. Okay. Thank you.

SEN. DRILON. Your earlier mentioned that after you received the subpoena on this particular matter of Chief Justice Corona, you went one step further. I heard that phrase. Can you tell us exactly what you meant by going one step further?

COMMISSIONER HENARES. Sir, because the subpoena said income tax return of the people involved. So, we looked for the income tax return and we cannot find any. But we know that he is employed, and therefore, we gave instruction to find out where the Supreme Court file—is a taxpayer. And we ask the RDO if the Supreme Court submit alpha list, and to provide us with the alpha list. So, that is the one step further that we meant, Sir.

SEN. DRILON. And Chief Justice Corona was in the alpha list submitted by the Supreme Court.

COMMISSIONER HENARES. Yes, Sir.

SEN. DRILON. And since you mentioned that the alpha list would only be feasible, where you have one source of income from one employer, where withholding tax was done, it means that in the case of Chief Justice Corona, your records will show that he had only one source of income, and that is his salary from the Supreme Court.

Is that a correct statement?

COMMISSIONER HENARES. Yes, Sir. And that salary is only—that income is the amount shown in the alpha list.

SEN. DRILON. That income is what is shown in the alpha list.

Does the alpha list indicate whether it is basic salary, bonus, etcetera, or not?

COMMISSIONER HENARES. It has different column. It includes there non-taxable bonuses and gratuities and the GSIS, Pag-IBIG, PhilHealth contribution, it is in the column, Sir.

SEN. DRILON. In the case of Chief Justice Corona, where did the compensation, on which column did his compensation appear?

COMMISSIONER HENARES. With Justice Corona, the column is like this, there is a gross compensation income, it says, under the gross compensation, it has a sub-heading, non-taxable. And under non-taxable, there is GSIS, PHIC and HDMF, the amount there is P23,374.74. Then, there is a bonus/benefits, it said there, P30,000.

Then, it said taxable, there is a taxable sub-column, and it said there, bonus/benefit, which is taxable, P27,417. Then, another sub-column saying salaries and others, P604,388.46.

SEN. DRILON. What year was that?

COMMISSIONER HENARES. Year 2008.

Then, there is an amount of exemption, I think, this is personal exemption, it said P41,000. Then, tax due, January to December, it is P154,057.75.

Then, it said, tax withheld, January to December, P157,236.24.

Then, because there is a column over withheld tax or refunded, under withheld tax, there is over withheld, so, P3,178.49.

So, this tax withheld as adjusted is P154,057.75

SEN. DRILON. P154 thousand …

COMMISSIONER HENARES. P154,057.75

SEN. DRILON. And therefore, he got a refund.

COMMISSIONER HENARES. Ano, when you are in the alpha list, it is a requirement under Tax Code, the December, the employer have to make the adjustment, so that there is no more refunding coming from the BIR.

SEN. DRILON. So, that amount corresponded to the taxes on the bonus in excess of P30,000 and the salary of P604,388.45. Is that correct?

COMMISSIONER HENARES. Yes, Sir.

SEN. DRILON. Alright. Now, you said that Chief Justice Corona had no income tax return filed.

COMMISSIONER HENARES. Yes, Sir.

SEN. DRILON. It means that other than the alpha list, what is stated in the alpha list, the Chief Justice did not have any other income per BIR records.

COMMISSIONER HENARES. Yes, Sir.

SEN. DRILON. What about his wife?

COMMISSIONER HENARES. His wife COM. HENARES. His wife also did not file an ITR. She also has an alpha list from Camp John Hay.

SEN. DRILON. And, therefore, the same presumption is valid that she did not have any other compensation other than what appears in the alpha list.

COM. HENARES. Actually, with the wife, she has a little problem because she received, aside from her compensation, she received a director’s fee where the withholding tax was only P10,000.00, so there was no proper withholding of taxes and she should have filed an income tax return.

SEN. DRILON. And your records will not show that her income tax return was filed.

COM. HENARES. Yes, there is no income tax return filed.

SEN. DRILON. Thank you, Mr. President.

THE PRESIDING OFFICER. Anyone else? Majority Floor Leader.

SEN. SOTTO. Senator Recto, Mr. President.

THE PRESIDING OFFICER. The Gentleman from Batangas.

SEN. RECTO. Thank you, Mr. President, very briefly, in the interest of fairness and justice and to increase the intellectual quotient of our public with regard to taxes, I ask these few questions, Mr. President.

Mr. President, let me first follow up on the question of our Senate President. Allowances and bonuses. Ang sinabi ng ating testigo kanina, pagka mahigit P30,000.00 ay taxable na, tama ho ba iron?

COM. HENARES. Oho.

SEN. RECTO. Sino ang dapat mag withhold niyan, iyong employer?

COM. HENARES. Oho, ang employer ho.

SEN. RECTO. At kung alam ng employee na kulang ang winithhold, dapat nagfile siya ng income tax return.

COM. HENARES. Oho.

SEN. RECTO. Para iyong balanse, siya dapat ang magbayad.

COM. HENARES. Oho.

SEN. RECTO. Pero mahirap sigurong isipin para sa ordinaryong empleyado that that is the case. Halimbawa pag ditto ka nagtatrabaho sa Senado, nakatanggap ka ng bonus, mahigit P30,000.00, hindi ka na magpa-file ng bagong income tax return. I suppose that is happening throughout the bureaucracy in the different government agencies.

COM. HENARES. Sir …

SEN. RECTO. I am just laying a fact, ha.

COM. HENARES. It should be the employer who should make the adjustment at the end of the year.

SEN. RECTO. Correct. So, samakatuwid, pagka halimbawa, in the case of the Supreme Court, there is an accounting office, on the initial basic salary, kung hindi nila kinaltasan, lalo pang hindi nila ni-remit, sila ang mananagot.

COM. HENARES. Actually, sa batas, dalawa ho ang mananagot, silang dalawa pareho.

SEN. RECTO. I will just review the law, pero, silang dalawa ang mananagot.

COM. HENARES. Oho. Iyong isa, for non-withholding, iyong isa for not paying taxes.

SEN. RECTO. Posible. Okay. So, let me move from that issue. Incidentally, I do have a bill on February 2, we will have a hearing on that. But let me move on, Mr. President. On the face of the CAR testified to earlier, I think this is WW. This is with regard to the La Vista property. Without looking at the income tax returns, ito iyong binenta ni Cristina Corona kay Maria Carla Castillo. Just on its face, samakatuwid, ditto nakalagay ditto, binenta ko itong property na ito, P18 million ang halaga. Just on its face, at nakalagay ditto nagbayad si Mrs. Corona ng P1,200,000.00, tama ho ba iron?

COM. HENARES. Oho.

SEN. RECTO. Therefore, kumita siya ng mahigit P16 million, tama?

COM. HENARES. Oho, kung totoo ho iyong transaction.

SEN. RECTO. Tama, on its face, totoo iyong transaction nangyari. Let us not have any conclusions further than that.

COM. HENARES. Yes, sir.

SEN. RECTO. So, having said that, Madam Witness, aside from the income of the Chief Justice, para makita natin ang katotohanan diyan, to be fair to the defense as well, halimbawa, kung saka-sakali na totoo itong transaksyon na ito, hindi lamang iyong suweldo ni Chief Justice Corona ang dapat nating i-compute, kung hindi etong isang pagbentang ito, nagbayad pa siya ng buwis, katunayan ng P1,296,000.00, at dapat idadagdag natin ito, kumita siya ng mahigit P16 million ditto, on its face, isn’t that correct?

COM. HENARES. On its face, yes, sir, but …

SEN. RECTO. Thank you. Thank you. Thank for the answer.

COM. HENARES. But the period is different.

SEN. RECTO. No, what you are saying now is, in the income tax return, so, leet me proceed to that, what you testified earlier is on the income tax return of Maria Carla Castillo.

COM. HENARES. Yes, sir.

SEN. RECTO. In effect, you are questioning her capability to buy this property.

COM. HENARES. Yes, sir.

SEN. RECTO. Just by reviewing the income tax returns.

COM. HENARES. Of Ma. Carla Constantino.

SEN. RECTO. That is right. Have you reviewed the income tax returns of the husband as well?

COM. HENARES. Yes, sir.

SEN. RECTO. But that has not been testified yet.

COM. HENARES. No, sir.

SEN. RECTO. Hindi pa. So ibig sabihin magkakaroon pa kayo niyan. Posible.

COM. HENARES. I do not know, sir.

SEN. RECTO. Maybe kasi tinawag ng prosecution. Okay. Kung halimbawa naman iyong kanyang father-in-law ang nagpautang sa kanya, I mean it does not necessarily prove anything immediately. If at all non-payment of taxes sila but it does not prove immediately that it is conclusive na wala silang pera para bilhin ito on that other hand.

COM. HENARES. Yes, sir.

SEN. RECTO. Hindi ba? Well, thank you for that. My time is up, Mr. President.

THE PRESIDING OFFICER. In other words, the mere incapacity on record of his income tax by a buyer of property to buy the property is not an absolute evidence of illegalness of resources used to buy the property.

COM. HENARES. We have to look at other circumstances, sir.

THE PRESIDING OFFICER. Precisely. You are just basing your conclusion on the fact that the income tax return on its face of the buyer would not support the ability to purchase.

COM. HENARES. Yes, sir.

THE PRESIDING OFFICER. Thank you.

Then there was the equally curious case of Senator Joker Arroyo basically suggesting to the Bureau of Internal Revenue that it hold off from doing its job for political reasons:

SEN. SOTTO. Mr. President, one final member of the court, Senator Joker Arroyo, wishes to be recognized.

THE PRESIDING OFFICER. The Gentleman from Makati and Bicol.

SEN. ARROYO. This is not really a question but clarification. You said that on the 19th of January you received a subpoena.

COM. HENARES. 18th.

SEN. ARROYO. 18th. And immediately you wrote the Executive Secretary.

COM. HENARES. I wrote the Executive Secretary on January 19, the next day.

SEN. ARROYO. Alright. And on January 20 you received the authorization.

COM. HENARES. Yes, sir, at 4 p.m.

SEN. ARROYO. I just want to say the speed with which…

COM. HENARES. Pardon?

SEN. ARROYO. The speed with which…

COM. HENARES. Sir, I harassed him to issued it otherwise I might be cited in contempt by the Senate.

SEN. ARROYO. How could you have harassed him when you said you did not talk to them.

COM. HENARES. No. I harassed the Deputy Legal Presidential Counsel, sir.

SEN. ARROYO. Now, I did not exactly capture what you answered the defense. Is this the first time since you assumed office that the President of the Philippines issued an authority to the Bureau of Internal Revenue to release the ITRs.

COM. HENARES. Yes, sir.

SEN. ARROYO. So in other words throughout the period when you were—when did you assume the office of…

COM. HENARES. Just July 2, 2010, sir, at the same time as the President.

SEN. ARROYO. So that is roughly one and a half years.

COM. HENARES. Yes, sir.

SEN. ARROYO. Okay. So for one and a half years, there was never an instance where the President of the Philippines have authorized the release of an ITR..

COM. HENARES. No, sir.

SEN. ARROYO. So this stands out as a kind of singular incident.

COM. HENARES. Sir, because nobody ask for returns from us that is not authorized, sir.

SEN. ARROYO. Then again, I want to be clarified as to the statement that the Bureau of Internal Revenue is now conducting an investigation of Chief Justice Corona.

COM. HENARES. Sir, I said that if it warrants further investigation.

SEN. ARROYO. Okay. Correct me if I’m wrong , because I’m just basing this on the recollection of your statement. In the course of our examination of the papers you have, you found it necessary to pursue an investigation. Do I understand you correctly?

COMMISSIONER HENARES. Sir, because of the—

SEN. ARROYO. Don’t give me the reason first. It was because of your investigation. What was the cause of that? The papers in front of you.

COMMISSIONER HENARES. The papers in front of me dictates that I should investigate further.

SEN. ARROYO. All right. Now,—and you conducted the investigation?

COMMISSIONER HENARES. We are conducting an investigation at present.

SEN. ARROYO. Now, does the Commissioner of Internal Revenue personally conduct an investigation? I mean, at your level, is that not delegated to someone else?

COMMISSIONER HENARES. Sir, when paper comes to me and I see there’s something wrong, I order the investigation. So, on my first review, if there is something wrong, then I will order. But if there’s nothing wrong, then I will just let it aside.

SEN. ARROYO. I asked this question because if you pursue your investigation, I’m not saying you shouldn’t, then there will be a parallel case against the Chief Justice. One in the impeachment court and another one in the Commissioner of Internal Revenue.

Now, I get a little bothered by that. I’m not saying it’s wrong or right. But a twin move against one person, here in the Senate through impeachment, another one in the Internal Revenue through investigation using the powers of the Internal Revenue that’s very potent. I’m just saying that because from your testimony, you said that you—we are now conducting an investigation. There seem to be an over-eagerness involved by that.

COMMISSIONER HENARES. Sir, it’s not—I think the thing there is if we see there’s something wrong and we do not do anything, people will accuse us of sleeping on our job.

SEN. ARROYO. Let me ask you, do you think you could have postponed the investigation. You can imagine, you are going to appear here, simultaneously you’re conducting an investigation.

I mean, isn’t that a bit unusual? What I’m saying is this. You are preparing for your testimony here. At the same time, you and your office are studying already whether the respondent Corona did not file or—what’s that?—did not have enough income or—What’s your investigation about?

COMMISSIONER HENARES. Sir?

SEN. ARROYO. What is the nature of your investigation?

COMMISSIONER HENARES. It’s a asset net worth method to determine whether there was some income he did not report and did not pay taxes thereon.

SEN. ARROYO. All right. I ask the question, can you not have waited?

COMMISSIONER HENARES. Sir, I only answered the question about seeing this—

SEN. ARROYO. Remember, the question is one of policy. We don’t want the public to think that the forces of the government are being used. One impeachment initiated by the House of Representatives, and now tossed to the Senate for trial. Then another one by the Internal Revenue for some tax malfeasance or whatever. I’m just saying, that is my concern.

COMMISSIONER HENARES. Yes, Sir.

SEN. ARROYO. Thank you very much.

COMMISSIONER HENARES. Yes, Sir.

And that was that. But by this point –and again, it’s very curious. because the defense ended up opening the door to the line of questioning it had been trying to prevent– the question at hand for Article II was clearly laid out, for all sub-paragraphs and not just the title of the charge, which was the only thing the defense was prepared to admit. More puzzling still, the questioning opened up by Justice Cuevas led to Commissioner Henares essentially testifying as an expert witness, on the conclusions that can be drawn from the Chief Justice’s tax documents. Blogger Article VIII Jester ties it all together as follows:

As with the previous hearing, the Prosecution maintained that the testimony of Bureau of Internal Revenue (BIR) Commissioner Kim Henares is being presented under paragraphs 2.2 and 2.3 of the Impeachment Complaint, as they correlate to Sections 3, 7 and 8 of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) pertaining to the accumulation of ill-gotten wealth (paragraph 2.4 of the Impeachment Complaint). Section 8 of RA 3019 particularly states that properties in the name of the spouse and dependents of a public official may be taken into consideration when their acquisition through legitimate means cannot be satisfactorily shown.

In the same manner, Section 1 of Republic Act No. 1379 (Forfeiture Law) provides that properties concealed in the names of relatives and/or any other persons are relevant to determine whether a government official has accumulated ill-gotten wealth. Section 2 of RA 1379, in turn, provides that whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired…

Henares testified that, based on official documents and records on file with the BIR, Ma. Carla Castillo (Corona’s daughter) is incapable of purchasing the La Vista Property worth P18,000,000.00 due to lack of sufficient income. This makes it all the more obvious that Corona maliciously and systematically concealed his properties in the names of his relatives in violation of law. This strengthens the prima facie presumption under law – particularly under RA 3019 and RA 1379 – that the properties he acquired that are grossly and manifestly disproportionate to his lawful income are ill-gotten.

Further, the testimony of Henares that Ma. Charina Corona (Corona’s other daughter) has not filed any Income Tax Return (ITR) with the BIR and was registered only as a one-time taxpayer for the purpose of purchasing the McKinley Hills Property worth P6,196,575.00 again shows that Corona maliciously and systematically concealed his properties in the names of his relatives in violation of law.

It should be recalled that on 19 January 2012 (Day 4), the titles previously presented in relation to Corona’s properties revealed the following matters:

The parcel of land situated in McKinley Hill, Fort Bonifacio, Taguig City, with an area of 203 square meters, was acquired from Megaworld Corporation in October 2008 for P6,196,575.00 and registered in the name of Ma. Charina Corona (TCT No. 2093-P) when she was only 30 years old at the time of the supposed purchase. Moreover, the Deed of Absolute Sale was signed by Renato Corona both as Attorney-in-Fact of Ma. Charina Corona and as witness, as well as Cristina Corona (Corona’s wife) as witness.

Spouses Ma. Carla Castillo and Constantino Castillo III (Corona’s son-in-law) bought two expensive properties amounting to P33,000,000.00 within less than two (2) years: First, a parcel of commercial land situated in Diliman, Quezon City, with an area of 819 square meters, was acquired from Myrla Melad-Bajar, married to Beneroso Bajar, in March 2009 for P15,000,000.00 and subsequently registered in the name of Constantino Castillo III, married to Ma. Carla Castillo (TCT No. N-327732). Second, a parcel of land situated in La Vista Subdivision, Diliman, Quezon City, with an area of 1,200 square meters, was supposedly acquired from Cristina Corona, married to Renato Corona, in November 2010 for P18,000,000.00 and subsequently registered in the name of Ma. Carla Castillo, married to Constantino Castillo III (TCT No. 004-2010010259).

These belie the Defense’s previous assertions that Ma. Carla and Ma. Charina have the capacity, means, income and/or resources to purchase the properties under their names.

As a result of the prima facie presumption under law on the existence of ill-gotten wealth on the part of Corona, it is incumbent upon him to discharge his burden of evidence to prove that the properties in question were acquired through lawful means.

There’s also this summary of what has come out, from Maritess Vitug –and that’s why I suggest that the burden of proof has, for now, shifted to the defense.:

Let’s review the facts, so far, that have surfaced in the impeachment court.

1. Renato Corona’s declared yearly income in the Supreme Court ranged from P400,000-plus to P600,000-plus, according to taxes withheld. He has not declared any other source of income.

2. Based on deeds of sale and certificates authorizing registration (CARS are issued by the Bureau of Internal Revenue when real properties are bought or sold), Corona and his wife, Cristina, acquired over P40 million worth of properties from 2003 to 2009.

3. In December 2012, a CAR showed that the Coronas bought P700,000 worth of shares in a membership club, The Palms Country Club, in Alabang.

4. In his SALNs while at the Supreme Court, from 2002 to 2010, Renato never filled up the “acquisition cost” of his properties, which, Henares, said was “most important” in computing one’s net worth.

5. Cristina Corona paid taxes only in 2003 when she bought the 1,200-square meter La Vista lot for P11 million thus the BIR classified her as a “one-time taxpayer.”

6. Taxes were withheld from Mrs. Corona’s salary when she became CEO/COO, chairman and president of John Hay Management Corp. from 2007-2010. Annual pay was over P600,000, except for 2010 when she stepped down mid-year.

7. Daughter Carla, who bought the La Vista lot from her mother in 2010 for P18 million, declared minimal income of P8,476 in 2009. Moreover, she only paid taxes in 2008 and 2009. (The income tax returns of her husband, Constantino Castillo III, have been subpoenaed by the court.)

8. Land titles from the Quezon City Registry of Deeds that have been submitted to the court show that a year before Carla acquired the La Vista property, she and her husband bought a commercial lot and building in Kalayaan Avenue for P15 million.

9. Charina Corona, the youngest daughter, was also classified by the BIR as a “one-time taxpayer” in 2008 when she bought a 200-square meter lot in McKinley Hills at The Fort. Serafin Cuevas, in his cross-examination of Henares, clarified that Charina had been abroad for 10 years. Earlier, the chief justice said that his daughter is a physical therapist working in the US. (Our estimate shows that Charina bought the P6-million upscale property after working in the US for about 7 years.)

Next week, the public is expected to get more details to slowly piece together the puzzle: how the chief justice and his wife were able to acquire all these properties given their incomes.