Wednesday, September 4, 2013

BIR Chief is Going Berserk Demanding More Taxes at a Time When Government is Faced with Raging Accusation of Plunder of Taxpayer’s Money by Public Officials; Where’s the Sensitivity?

BIR’s Kim Henares’ announcement that her agency is crafting a memorandum circular that would require Lawyers and Doctors to post a schedule of rates they charge their clients/patients (just like sari-sari store) is, at least, at the point of view of a lawyer, preposterous for a number of reasons:
1.       The timing is awful, coming on the heels of yet the most pervasive and massive corruption scandal (pork barrel scam) involving lawmakers, politicians, and members of the executive department. Given what she is trying to achieve: “to collect more to finance the expenditure of the government.” Who’s going to buy it at this time? What this sounds to taxpayers is to collect more so that the thieves in government can funnel more into their own pockets.
It sounds like saying that taxpayers have not sacrificed enough; the thieves have not built enough mansions, have not acquired enough posh flats; have not partied enough; have not bought enough luxury cars… ENOUGH!
2.       It is the Supreme Court that has the power to regulate all aspects of the practice of legal profession, broad enough to include whether to post rates or not (honestly I can’t believe I even have to discuss this, the genius) so it is clearly a case of an executive agency overstepping its authority.
Section 5, Article VIII, of 1987 Philippines Constitution provides:
“Section 5. The Supreme Court shall have the following powers: xxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.”
It is the Supreme Court’s longstanding view that lawyering is not a business, but a noble profession thus, not to be peddled like a commodity or a commercial undertaking. That explains why in its Canons embodied in the Code of Professional Responsibility (Rule2.03), lawyers are not allowed to advertise (whether on TV or paper, or any other means) except only to list in professional directories which one hardly knows exist, if in fact, they do, or even actively seek referrals.
This makes the playing field more tilted in favor of big law firms who can afford a not-so-innocent media exposure –calculated to go around the prohibition–  to gain publicity, popularity, and further their marketability, while the small private practitioners, regardless of their ability to deliver the same quality of service, are left in oblivion. This has enormous impact on their ability to make a living.
Now, imagine while lawyers are not allowed to advertise or even to hang or mount an attractive law office sign, but only a plain drab insignificant unnoticeable signage bearing their name and title, they are being required to post their rates, in color I surmise.
“Rule 2.03 - A lawyer shall not do or permit to be done any act designed primarily to solicit legal business.”
Under the same Canon and Code, a lawyer is prohibited from charging a rate lower than the custom, but qualified by circumstances of the prospective client or his case. That makes uniform rates unfeasible, if not improper.
“Rule 2.04 - A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant.” (emphasis and italics supplied)
3.       It is no one-size-fits-all for legal services, and so for the fees. Unlike in the case of doctors, where medical cases may be homogeneously categorized, e.g. if its heart surgery, it is relatively the same across all patients as it involves the same human heart and procedure, and involves the patient alone.
In the case of lawyers, a case of ejectment would vary a great deal depending on who you are trying to eject: take into account the resistance the defendant puts up or exerts or is expected to put up, and the consequent risk it presents on the life of a lawyer; the period it is likely to take to conclude the case; the complexity which, often, a lawyer cannot conclusively evaluate until the defendant’s answer reveals it is part of a squatting syndicate, so forth and so on.
Times have changed as I have learned firsthand, there is quite a number of squatting syndicates now hell bent on usurping and wresting possession and ownership of properties from their lawful owners through tactics and stratagem of intimidation, connections, and exploiting the weakness of our justice system – knowing its inner workings.
5.       Not all lawyers are in private practice. While obviously, the target of Henares’ pronouncement are those in private practice, it demonizes lawyers in general as tax evaders, even comparing miserably to teachers in terms of alleged average tax annual payments. That is stupid, and a lie! A lawyer in an LPO pays as much as two hundred thousand pesos in taxes a year, and withheld.
Even if they say a lawyer is not covered by the memorandum (I’m even just guessing) if he doesn’t intend to practice privately, it is still onerous because if and when a lawyer decides to take a case, even if it’s pro bono, and even if it’s a single case in a year, he will have to comply with the memorandum, and is subjected to corresponding penalty. The prospect of harassment I can only imagine.
6.         What Henares should preoccupy herself today, paying a little respect and sensitivity to, and solidarity with, the grief that has gripped the public over the multi-billion scam (including lawyers and doctors), is to investigate all who are involved in the pork barrel mess to see if they have paid taxes for their loots, since money earned whether legally or illegally is liable for taxes. Why isn’t she as adamant in her investigation on these politicians as she is on Napoles? (not in any way to side with Napoles)

Lastly, she has to learn one unwritten rule: Timing makes sense.

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