Tax Case Digest: CIR v. San Miguel Corporation G.R. No. 180740/G.R. No. 180910, November 11, 2019

CIR v. San Miguel Corporation
G.R. No. 180740/G.R. No. 180910, November 11, 2019

SC Second Division
Hernando, J.:

Lessons Applicable: unauthorized administrative legislation, prescription period for refund
Laws Applicable: 

FACTS:

• January 1, 1997: Republic Act (RA) No. 8240 took effect adopting a specific tax system instead of the ad valorem tax system imposed on, among others, fermented liquor.  As a result, fermented liquors were specifically subjected to excise taxes in accordance to the schedule in Section 140 of RA 8240 (renumbered to Section 143 under RA 8424)
• December 16, 1999: Secretary of Finance, upon recommendation of the CIR, issued RR No. 17-99 to implement 12% increase on excise tax, among others, fermented liquors by January 1, 2000.
• January 10, 2003: SMC filed a claim for tax refund or credit of excise tax it paid on its Red Horse Beer product from January 11, 2001 to December 31, 2000 in the amount of 94,494,801.96 php equivalent to the difference before the effectivity of RA 8240 and the new rate imposed under Section 145 of RA 8424 .  
• Without waiting for the CIR to act on its administrative claim for tax refund or credit, SMC filed a Petition for Review before the CTA
• CTA 1st Division: Approved SMC’s claim for tax refund or credit for its excess excise tax payment from March 1, 2001 to December 31, 2002 in the amount of 88,090,531.56 (excluded prescribed claim for January to February 2001).
• SMC filed a Motion for Reconsideration (MR) for the prescribed claim for January to February 2001 arguing that under the Advance Payment or Deposit scheme authorized by Section 11.1(2)(b) of RR No. 2-97, the filing of the returns and supporting documents may be submitted even a week after the actual removals.
• CTA 1st Division denied MR: Though due date of tax payment is not always the reckoning point for purposes of prescription, SMC failed to present its excise tax returns for January 1, 2001 to February 28, 2001 to prove the dates they were actually filed.
• CIR and SMC filed a Petition for Review with the CTA En Banc
• CTA en Banc: Denied since SMC claim is barred by prescription based on Section 229 and 130(A)(2) of the Tax Reform Act of 1997 since it failed to present the proof of the exact amount it paid for the period February 1 to 23, 2001.
• CIR filed a Petition for Review on Certiorari under Rule 45 of the Rules of Court with the CTA En Banc

ISSUES:
1.    W/N Section 1 of RR 17-99 is valid
2.    W/N SMC is entitled claim has prescribed

HELD: Petitions are denied.

1.    NO. 

• As  correctly contended by SMC, CIR v. Fortune Tobacco Corporation (G.R. Nos. 167274-75,  July 21, 2008) declaring Section 1 of RR No. 17-99 as unauthorized administrative legislation applies.  In this case, the provision is not supported by the plain wording of Section 143 of the Tax Code on fermented liquor just like Section 145 of the same Code on cigars and cigarettes in the above-mentioned case.
• Moreover, in CIR v. San Miguel Corporation (G.R. No. 184428, November 23, 2011) which involved the same parties herein and similar claim for refund of SMC for excess excise tax payments on its Red Horse beer product paid from May 22 to December 31, 2004.

2.    Yes. 

• In CIR v. Meralco (G.R. No. 181459, June 9, 2014), the court ruled that the two (2)-year prescriptive period under Section 229 of the Tax Reform Act of 1997 applies and that the six (6)-year period for actions based on solutio indebiti under Art. 1145 of the Civil Code.  The first element of solution indebiti where payment is made when there exists no binding relation between the payor, who has no duty to pay, and the person who received the payment is lacking.  Moreover, it is inapplicable since the Tax Code is a special law which explicitly provides for a mandatory period for claiming a refund for taxes erroneously paid.  Generalia specialibus non derogant.
• Neither can the claim be excepted from the two (2)-year prescription period based on equity considerations when there is clear statutory law governing the matter.
• It is a basic rule of evidence that each party must prove its affirmative allegation.  The burden rests upon SMC to present evidence that its prescribed returns for the excise taxes on its Red Horse beer product for February 2001 were actually filed after the removal of the said products from the place of production or later than February 24, 2001.   Yet, it failed to present a definitive computation of the excise taxes on its Red Horse Beer product which it had paid from February 24 to 28, 2001 and which would still have been within the prescriptive period.  
• Only questions of law may be raised under Rule 45 of the Rules of Court.  The sufficiency of a claimant’s evidence and the determination of the amount of refund are questions of fact which are for the judicious determination by the CTA of the evidence on record.  Rule finds greater significance with respect to the findings of specialized courts such as the CTA because of the very nature of its functions, which is dedicated exclusively to the resolution of tax problems and has accordingly developed an expertise on the subject, and consequently its conclusions are not lightly set aside unless there has been an abuse or improvident exercise of authority.

Tax Case Digest: Panasonic v. CIR (2010)

SECOND DIVISION
Panasonic v. CIR (2010)
G.R. No. 178090 February 8, 2010
ABAD, J.

Lessons Applicable: invoice requirements

Laws Applicable:

FACTS:

• Petitioner Panasonic, a VAT-registered enterprise who believing that its export sales are zero-rated sales, paid input VAT.  
• Since its input VAT is unutilized, it filed a claim for refund on tax credit.
• CTA denied since its invoice was not printed with "zero-rated"

ISSUE: W/N Panasonic qualifies for zero-rated sales and can refund its unutilized input VAT

HELD: petition is DENIED. NO.

• VAT is a tax on consumption, an indirect tax that the provider of goods or services may pass on to his customers. Under the VAT method of taxation, which is invoice-based, an entity can subtract from the VAT charged on its sales or outputs the VAT it paid on its purchases, inputs and imports.  
• Under the 1997 NIRC, if at the end of a taxable quarter the seller charges output taxes equal to the input taxes that his suppliers passed on to him, no payment is required of him. It is when his output taxes exceed his input taxes that he has to pay the excess to the BIR. If the input taxes exceed the output taxes, however, the excess payment shall be carried over to the succeeding quarter or quarters. Should the input taxes result from zero-rated or effectively zero-rated transactions or from the acquisition of capital goods, any excess over the output taxes shall instead be refunded to the taxpayer.
• Under RMC 42-2003, failure to comply with invoicing requirements will result in the disallowance of his claim for refund.  Since Section 4.108-1 of RR 7-95 is effective then, it should comply with word zero-rated for zero-rated sales covered by its receipts or invoices.
• It also became part of 1997 NIRC on November 1, 2005 not diminishing the binding force of the prior enactment.
• The requirement is reasonable and in accord with efficient collection of VAT preventing false claims and help segregate sales.

Tax Case Digest: Silkair v. CIR (2008)

Silkair v. CIR
G.R. No. 173594 February 6, 2008
CARPIO MORALES, J.

Lessons Applicable: Tax exemption is personal and direct

Laws Applicable:

FACTS:

• Petitioner Silkair (Singapore)  Pte. Ltd., a foreign corp. which has a Philippine representative office, is an outline international air carrier
• Dec 19, 2001: Silkair filed with the BIR a written application for the refund of excise tax it paid on its purchases or jet fuels from Petron Corp. from Jan - June 2000
• Dec 26, 2001: not having been acted upon by the BIR, it filed a petition for review before the CTA
• CTA: denied its petition on the ground that the excise tax is imposed on Petron are manufacturer
• When the burden is shifted to Silkair, it is no longer a tax but added cost of goods purchased
• After changing counsel to Atty. Pastrana CTA En Banc dismissed it for being filed out of time.  
• Petitioner filed a Petition for Review with the SC

ISSUE: W/N Silkair can claim a refund for indirect excise tax

HELD: Petition is denied.
NO

• Section 130 (A) (2) of the NIRC provides that "[u]nless otherwise specifically allowed, the return shall be filed and the excise tax paid by the manufacturer or producer before removal of domestic products from place of production." Thus, Petron Corporation, not Silkair, is the statutory taxpayer which is entitled to claim a refund based on Section 135 of the NIRC of 1997 and Article 4(2) of the Air Transport Agreement between RP and Singapore. 
• Even if Petron Corporation passed on to Silkair the burden of the tax, the additional amount billed to Silkair for jet fuel is not a tax but part of the price which Silkair had to pay as a purchaser
• Unlike in Maceda v. Macaraig Jr. where it expressly includes indirect taxes.  Rule that tax exemptions are construed in strictissimi juris against taxpayer applies

Tax Case Digest: Bicolandia Drug Corp. v. CIR (2006)

Bicolandia Drug Corp. v. CIR
G.R. No. 148083 July 21, 2006
VELASCO, JR., J.

Lessons Applicable: senior citizen discount based on acquisition cost and as tax credit

Laws Applicable:

FACTS:

• Bicolandia Drug Corporation, a corporation engaged in the business of retailing pharmaceutical products under the business style of "Mercury Drug," granted the 20% sales discount to qualified senior citizens purchasing their medicines in compliance with R.A. No. 7432
• It then alleged error that they should have tax credit so it claimed for refund.  
• CTA: Rev. Reg. No. 2-94 is null and void for being inconsistent with Sec. 4 of RA 7432 that states the discount is claimed as credit
• But, it computed the tax credit as cost of sales / gross income x 20% 
• It also excluded those sales without pre-marked cash slips.  
• Both CIR and petitioner appealed.  
• CTA modified its decision to issue a certificate of tax credit to petitioner.

ISSUE:
1. W/N the discount granted is based on the acquisition cost rather than actual discount granted
2. W/N petitioner can claim its refund

HELD: Petition is hereby DENIED
1. Yes. Cost refers to the amount extended to senior citizens.  It shall be applied as tax credit and may be deducted from tax liability.  If no current tax due or nnet loss for the period, the credit may be carried over to the succeeding taxable year.
2. No. The words of statute are clear and free from ambiguity.  It must be given literal meaning.  Thus, can only claim as tax credit.

Tax Case Digest: RCBC v. CIR (2011)

RCBC v. CIR
G.R. No. 170257 September 7, 2011
MENDOZA, J.

Lessons Applicable: Waiver, Witholding Agent, CTA findings,

Laws Applicable:

FACTS:

• January 23, 1997, RCBC executed 2 waivers of Defense of Prescription.  Under the statute of limitation of the NIRC covering the Internal Revenue Taxes due for 1994 and 1995 extending the assessment up to Dec. 31, 2000.  
• January 27, 2000: RCBC received a formal letter of demand together with assessment notices for deficiency taxes.  RCBC filed a Protest and then, a Petition for Review before the CTA pursuant to Sec. 228 of the 1997 Tax Code.
• Dec. 6, 2000: It again received a letter of demand which drastically reduced the deficiency tax except from the onshore tax and document stamp tax (DST). 
• RCBC argued the validity of the waivers for not being signed and for the onshore tax, it should not be primarily liable since it is only a withholding agent.
• CTA terminated the assessment for other deficiencies except for the FCDU shore tax and DST charging 20% deficiency tax.  Being denied in CTA en banc, it raised the matter to the Supreme Court.  While the case is pending, the DST deficiency was paid after the BIR approved its application for abatement.

ISSUES: W/N RCBC as payee bank can be held liable for deficiency on shore tax which is mandatory by law to be collected at source in the form of a final withholding tax.

HELD: Petition is denied.  As held in Chamber of Real Estate and Builder's Association Inc. v. Executive Sec., the purpose of the withholding tax system are:

1. to provide the taxpayer with a convenient way of paying his tax liability
2. to ensure the collection of tax
3. to improve the governments cashflow.

• Under the withholding tax system, the payor is the taxpayer upon whom the tax is imposed, while the withholding agent simply acts as an agent or a collector of the government to ensure the collection of taxes
• The liability of the withholding agent is independent from that of the taxpayer. 
• The former cannot be made liable for the tax due because it is the latter who earned the income subject to withholding tax. 
• The withholding agent is liable only insofar as he failed to perform his duty to withhold the tax and remit the same to the government. The liability for the tax, however, remains with the taxpayer because the gain was realized and received by him.
• RCBC cannot evade its liability for FCDU Onshore Tax by shifting the blame on the payor-borrower as the withholding agent. 
•  The CTA, as a specialized court dedicated exclusively to the study and resolution of tax problems, has developed an expertise on the subject of taxation and shall be accorded the highest respect and shall be presumed valid, in the absence of any clear and convincing proof to the contrary

Taxation Case Digest: Fitness by Design v. CIR (2008)

Fitness by Design v. CIR
G.R. No. 177982 October 17, 2008
CARPIO MORALES, J.

Lessons Applicable: BIR power to gather information without consent

Laws Applicable:

FACTS:

• March 17, 2004: CIR assessed Fitness by Design Inc. for deficiency Income Taxes for the year of 1995 for P 10,647, 529.69
• February 1, 2005: CIR issued a warrant of distraint and levy against petitioner which prompted petitioner to file a Petition for Review before the CTA where he alleged his defense of prescription based on Sec. 203 of the Tax Code. 
• CIR answer: Tax return was false and fraudulent for deliberately failing to declare its true sales of P 7,156,336.08 and failure to file a VAT return for it.  Since petitioner  failed to file a protest, it is subject to either distraint or levy.  Moreover, it cited Sec. 222 (a) of 1997 Tax Code where false and fraudulent return with intent to evade tax or failure to file a return prescribe 10 years after the discovery of the falsity, fraud or omission.  
• March 10, 2005: BIR filed a criminal complaint before the DOJ against the officers and accountant of petitioner for violation against the 1977 NIRC.
• During the preliminary hearing on the issue of prescription, petitioner's former bookkeeper attested that his former colleague, CPA Sablan, illegally took custody of accounting records and turned them over to the BIR. 
• Petitioner then requested a subpoena ad testificandum for Sablan who failed to appear.
• CTA: Denied the motion for issuance of subpoena and disallowed the submission of written interrogatories to Sablan who is NOT a party to the case nor was his testimony relevant.  It also violates Section 2 of Republic Act No. 2338, as implemented by Section 12 of Finance Department Order No. 46-66, proscribing the revelation of identities of informers of violations of internal revenue laws, except when the information is proven to be malicious or false.  Moreover, the subpoena is NOT needed to obtain affidavit of the informer.

ISSUE: W/N BIR can use the information without petitioner's consent

HELD: YES.

• Sec. 5 of the tax code provides that the BIR is authorized to obtain from any person other than the person whose internal revenue tax liability is subject to audit or investigation and can even summon any person having possession, custody or care of the books of accountants and other accounting records containing entries relating to the business of the person liable for tax.  This includes even those which cannot be admitted in a judicial proceeding where the Rules of Court are strictly observed.  CTA case is not a criminal prosecution where he can cross examine the witness against him.  CTA can enforce its order by citing them for indirect contempt.

Tax Case Digest: CIR v. Acosta (2007)

CIR v. Acosta
G.R. No. 154068 August 3, 2007
QUISUMBING, J.

Lessons Applicable: Refund in the nature of tax exemption, exhaustion of administrative remedy, prospectivity of tax laws

Laws Applicable:

FACTS:

• Rosemary Acosta, an employee of Intel Manufacturing Phils. Inc. assigned in a foreign country filed on March 21, 1977 for a period of January 1, 1996-December 31, 1996, a Joint Individual Income Tax Return with her husband on October 8, 1997, she filed an amended return indicating an overpayment of P 358,274 due to the income taxes withheld and paid by Intel.  
• April 15, 1999: She filed a petition for review with the CTA who dismissed her petition for failing to file a written claim for refund required under Sec. 230 of the old tax code.  Also, the omission of the date of filing the final adjustment return deprived the court of its jurisdiction over the subject matter of the case.
• CA: reversed the CTA holding that the filing of an amended return indicating an overpayment was sufficient compliance with the requirement of a written claim for refund. 
• Applying sec. 204 (c) of the 1997 NIRC, the CIR sought reconsideration but was denied so it elevated the matter with the SC

ISSUES:

1. W/N the amended return is sufficient compliance of written claim
2. W/N the 1997 tax reform can be applied retrospectively

 HELD:  Granted.

1. NO.  The requirements under Section 230 for refund claims are as follows

• a.  A written claim for refund or tax credit must be filed by the taxpayer with the Commissioner;
• b. The claim for refund must be a categorical demand for reimbursement; 
• c. The claim for refund or tax credit must be filed, or the suit or proceeding therefor must be commenced in court within 2 years from date of payment of the tax or penalty regardless of any supervening cause  
• It is intended to afford the CIR an opportunity to correct the action of its subordinate officers and to be notified.  Tax refunds are in the nature of tax exemptions which are construed strictissimi juris against the taxpayer and liberally in favor of the government
• As tax refund involve a return of revenue from the government, the claimant must show the specific provision of law as basis of her right

      2.  NO.  Tax laws are prospective in operation, unless the language of the statute clearly provides  otherwise. Moreover,  a party seeking an administrative remedy must not merely initiate the        prescribed administrative procedure to obtain relief, but also pursue it to its appropriate conclusion before seeking judicial intervention in order to give the administrative agency an opportunity to decide the matter itself correctly and prevent unnecessary and premature resort to court action.  Revenue statutes are substantive laws and in no sense must their application be equated with that of remedial laws which  must be faithfully and strictly implemented.

Tax Digest: CIR v. Estate of Benigno Toda Jr. (2004)

CIR v. Estate of Benigno Toda Jr.
G.R. No. 147188. September 14, 2004
DAVIDE, JR., C.J.

Lessons Applicable:  Tax evasion v. Tax avoidance

Laws Applicable:

FACTS:

• March 2, 1989: Cibeles Insurance Corp. (CIC) authorized Benigno P. Toda Jr., President and Owner of 99.991% of outstanding capital stock, to sell the Cibeles Building and 2 parcels of land which he sold to Rafael A. Altonaga on August 30, 1987 for P 100M who then sold it on the same day to Royal Match Inc. for P 200M.
• CIC included gains from sale of real property of P 75,728.021 in its annual income tax return while Altonaga paid a 5% capital gains tax of P 10M
• July 12, 1990: Toda sold his shares to Le Hun T. Choa for P 12.5M evidenced by a deed of ale of shares of stock which provides that the buyer is free from all income tax liabilities for 1987, 1988 and 1989.  
• Toda Jr. died 3 years later.  
• March 29, 1994: BIR sent an assessment notice and demand letter to CIC for deficiency of income tax of P 79,099, 999.22 
• January 27, 1995: BIR sent the same to the estate of Toda Jr. 
• Estate filed a protest which was dismissed - fraudulent sale to evade the 35% corporate income tax for the additional gain of P 100M and that there is in fact only 1 sale.
• Since it is falsity or fraud, the prescription period is 10 years from the discovery of the falsity or fraud as prescribed under Sec. 223 (a) of the NIRC
• CTA: No proof of fraudulent transaction so the applicable period is 3 years after the last day prescribed by law for filing the return 
• CA: affirmed 
• CIR appealed

ISSUE: W/N there is falsity or fraud resulting to tax evasion rather than tax avoidance so the period for assessment has not prescribed.

HELD: YES.  Estate shall be liable since NOT yet prescribed.

• Tax avoidance and tax evasion are the two most common ways used by taxpayers in escaping from taxation. ax avoidance is the tax saving device within the means sanctioned by law. This method should be used by the taxpayer in good faith and at arms length. Tax evasion, on the other hand, is a scheme used outside of those lawful means and when availed of, it usually subjects the taxpayer to further or additional civil or criminal liabilities.
• Tax evasion connotes the integration of three factors: 
• (1) the end to be achieved, i.e., the payment of less than that known by the taxpayer to be legally due, or the non-payment of tax when it is shown that a tax is due
• (2) an accompanying state of mind which is described as being evil, in bad faith, willfull,or deliberate and not accidental; and
• (3) a course of action or failure of action which is unlawful.
• All are present in this case.  The trial balance showed that RMI debited P 40M as "other-inv. Cibeles Building" that indicates RMI Paid CIC (NOT Altonaga)
• Fraud in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in the damage to another, or by which an undue and unconscionable advantage is taken of another. 
• Here, it is obvious that the objective of the sale to Altonaga was to reduce the amount of tax to be paid especially that the transfer from him to RMI would then subject the income to only 5% individual capital gains tax, and not the 35% corporate income tax. 
• Generally, a sale of or exchange of assets will have an income tax incidence only when it is consummated but such tax incidence depends upon the substance of the transaction rather them mere formalities.  

PILA Case Digest: Vinuya v. Malaya Lolas Organization (2014)

G.R. No. 162230  August 12, 2014

Vinuya v. Malaya Lolas Organization

Lessons Applicable: foreign policy prerogatives of the Executive Branch, Incorporation Clause

Laws Applicable: Constitution

Facts:

The Court in its April 28, 2010 decision held that:

(1)   Plagiarism were then already lodged with the Committee on Ethics and Ethical Standards of the Court

(2)   A writ of certiorari did not lie in the absence of grave abuse of discretion amounting to lack or excess of jurisdiction

(3)   Waiver Clause in the Treaty of Peace with Japan is valid pursuant to the international law principle of pacta sunt servanda

(4)   Formal apology by the Government of Japan and the reparation the Government of Japan has provided through the Asian Women’s Fund (AWF) are sufficient to recompense petitioners on their claims

Petitioners Vinuya et al. filed a Motion for Reconsideration and a Supplemental Motion for Reconsideration, praying that the Court reverse its decision of April 28, 2010, and grant their petition for certiorari.

In their Motion for Reconsideration, petitioners contended that our constitutional and jurisprudential histories have rejected the Court’s ruling that the foreign policy prerogatives of the Executive Branch are unlimited and that the court has erred in holding that the Chief Executive has the prerogative whether to bring their claims against Japan because the foreign policy prerogatives are subject to obligations to promote international humanitarian law as incorporated into the laws of the land through the Incorporation Clause enshrined in Section 2, Article II of the 1987 Constitution as cited in the cases of Yamashita v. Styer and Kuroda v. Jalandoni.

They added that the status and applicability of the generally accepted principles of international law within the Philippine jurisdiction would be uncertain without the Incorporation Clause as it implied that the general international law forms part of Philippine law only insofar as they are expressly adopted.  They further cited The Holy See, v. Rosario, Jr. and U.S. v. Guinto where international law is deemed part of the Philippine law and Agustin v. Edu, where the Court declared that a treaty, though not yet ratified by the Philippines, was part of the law of the land through the Incorporation Clause.  Moreover, they argue that the Philippines is bound to abide by the erga omnes obligations arising from the jus cogens norms embodied in the laws of war and humanity that include the principle of the imprescriptibility of war crimes and that international legal obligations prevail over national legal norms.  Thus, the Chief Executive has the constitutional duty to afford redress and to give justice to the victims of the comfort women system in the Philippines.

They further argue that the crimes of rapes, sexual slavery, torture and other forms of sexual violence committed against the Filipina comfort women are not simple private claims that are the usual subject of diplomatic protection but are crimes that are shocking to the conscience of humanity.  Thus, they pray that the Court reconsider and declare:  (1) The crimes are against humanity and war crimes under customary international law. (2) The Philippines is not bound by the Treaty of Peace with Japan, insofar as the waiver of the claims of the Filipina comfort women against Japan is concerned; (3) The Secretary of Foreign Affairs and the Executive Secretary committed grave abuse of discretion in refusing to espouse the claims of Filipina comfort women; (4) Petitioners are entitled to the issuance of a writ of preliminary injunction against the respondents; (5) Order the Secretary of Foreign Affairs and the Executive Secretary to espouse the claims of Filipina comfort women for an official apology, legal compensation and other forms of reparation from Japan and (6) It is improper to lift orders based on statements on plagiarism.

ISSUE: W/N the Executive Department has exclusive determination and judgment regarding the petitioners claim as part of their foreign policy prerogative.

HELD: YES. Court DENIES the Motion for Reconsideration and Supplemental Motion for Reconsideration for their lack of merit.

            The Constitution has entrusted to the Executive Department the conduct of foreign relations for the Philippines. Whether or not to espouse petitioners’ claim against the Government of Japan is left to the exclusive determination and judgment of the Executive Department. The Court cannot interfere with or question the wisdom of the conduct of foreign relations by the Executive Department. Accordingly, we cannot direct the Executive Department, either by writ of certiorari or injunction, to conduct our foreign relations with Japan in a certain manner.

NOTE: The Court did not directly address the issue of incoporation clause but it is implied that the foreign policy prerogatives are NOT subject to obligations to promote international humanitarian law through the Incorporation Clause.

Crim Law 1 Case Digest: Baleros v. People 2006

Baleros v. People

G.R. No. 138033             February 22, 2006

Lessons Applicable: Attempted Rape

Laws Applicable: Art. 6

FACTS:
•    Martina Lourdes Albano (Malou), a medical student of the University of Sto. Tomas, stayed at Room 307 with her maid Marvilou.
•    December 12 10:30 pm: Malou slept.  Her maid Marvilou slept on a folding bed right in front of her bedroom door.
•    December 13, 1991 1:00 am: Chito left the fraternity party with Robert Chan and Alberto wearing a barong tagalog, with t-shirt inside, with short pants with stripes lent by Perla Duran and leather shoes.
•    December 13, 1991 1:30 am: Chito arrived at the Building wearing a white t-shirt with fraternity symbols and black shorts with the brand name “Adidas” from a party.  He requested permission from S/G Ferolin to go up to Room 306 leased by Ansbert Co but at that time only Joseph Bernard Africa was there.  Although Chito could not produce the required written authorization, he let him in because he will be a tenant in the coming summer break.  Joseph was awaken by Chito’s knock so he glanced the alarm clock and let him.  He saw him wearing dark-colored shorts and white T-shirt.
•    December 13, 1991 1:50 am: Renato Baleros, Jr. y David (Chito) forcefully covered the face of Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects.  This awakened Malou.  She struggled but could not move because she was tightly held and pinned down on the bed.  She kicked him and got her right hand free to squeeze his sex organ causing him to let her go.  She went for the bedroom door and woke up Marvilou.  She also intercommed S/G Ferolin saying: "may pumasok sa kuarto ko pinagtangkaan ako".  Malou proceed to Room 310 where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel Montes were staying and seeked help.  She saw her bed in a mess and noticed that her nightdress was stained with blue.  Aside from the window with grills which she had originally left opened, another window inside her bedroom which leads to Room 306 was now open.
•    December 13, 1991 3:30 pm: Christian and his roommates, Bernard and Lutgardo were asked by the CIS people to look for anything not belonging to them in their Unit when Rommel Montes went inside and found a grey bag.
o    Christian knew right away that it belonged to Chito.  It contained white t-shirt with fraternity symbol, a Black Adidas short pants, a handkerchief , 3 white T-shirts, an underwear and socks.
•    Chito pleaded NOT Guilty
•    13 witnesses including Malou and her classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala
o    Malou: Chito was her classmate whom he rejected a week before
o    Chito: He only slept and at about 6 to 6:30, Joseph told him that something had happened and asked him to follow him to Room 310 carrying his gray bag and since no one was there they went to Room 401 where Renato Alagadan was. He left his grey bag at Room 306 the day before.
•    handkerchief and Malou’s night dress both contained chloroform, a volatile poison which causes first degree burn exactly like what Malou sustained on that part of her face where the chemical-soaked cloth had been pressed
•    RTC: guilty of attempted rape
•    CA: Affirmed

ISSUE: W/N Chito is guilty of attempted rape

HELD: NO. REVERSED and SET ASIDE. ACQUITTING Renato D. Baleros, Jr. of the charge for attempted rape. GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine of P200.00, with the accessory penalties thereof and to pay the costs.

•    Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse with a woman under any of the following circumstances: (1) By using force or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When the woman is under twelve years of age or is demented.
•    Under Article 6, in relation to the aforementioned article of the same code, rape is attempted when the offender commences the commission of rape directly by overt acts and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance.
o    whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt act of rape.
o    Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense
•    Chito was fully clothed and that there was no attempt on his part to undress Malou, let alone touch her private part
•    Verily, while the series of acts committed by the petitioner do not determine attempted rape, they constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised Penal Code.
o    As it were, unjust vexation exists even without the element of restraint or compulsion for the reason that this term is broad enough to include any human conduct which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent person
o    That Malou, after the incident in question, cried while relating to her classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond cavil that she was disturbed, if not distressed