By BOY RYAN B. ZABAL
KALIBO, Aklan – A regional trial court dismissed the petition questioning the authority of the provincial government to determine the fair market value of sand and gravel extracted from public lands and other quarry resources here.
In his five-page resolution, Judge Niovady Marin of Regional Trial Court Branch 6 dismissed the instant petition of Neil Ryan Fernandez against the province of Aklan represented by Gov. Carlito Marquez, for failure to exhaust available administrative remedies even before seeking judicial relief under Special Civil Action No. 7667.
“There is a need for Fernandez to avail himself of administrative remedy provided for in Section 187, Republic Act 7160 before the instant petition could be filed,” Marin stressed.
Section 187 of Republic Act 7160 provides: “any question on the constitutionality or legality of tax ordinances may be raised on appeal within 30 days from the effectivity thereof to the Secretary of Justice. That within 30 days after receipt of the decision or lapse of 60 day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with the court.”
WHO HAS THE AUTHORITY?
Fernandez, engaged in sand and gravel business from Lezo, Aklan, questioned the authority of Provincial Treasurer Evan Timtiman and Marquez to determine the fair market value of sand and gravel and the classification of sand and gravel.
The Sangguniang Panlalawigan (SP) of Aklan earlier enacted Provincial Ordinance No. 05-021, which repealed Provincial Ordinance No. 05-17.
On December 9, 2005, Marquez issued Executive Order No. 041, pursuant to Section 26 of Provincial Ordinance 05-021, to set the current fair market value of clay and sand and gravel in Aklan for tax purposes as determined by Timtiman.
But Fernandez questioned the executive order, saying, it fixed a higher rate of sand and gravel extraction fee as provided for in Provincial Ordinance No 05-017. He also maintained that Timtiman and the Local Finance Committee increased the tax levy per cubic meter pursuant to Provincial Ordinance No. 05-021 and Executive Order No. 041.
Fernandez said the amendment is illegal and unconstitutional since unbridled and absolute discretion is give to the executive officers to determine the tax levy which is contrary to the Provincial Ordinance No. 05-017.
Under Section 65 of Provincial Ordinance No. 05-021, as amended under Section 6 of Provincial Ordinance No. 05-027, tax levied and collected on sand and gravel and other quarry resources and small scale mining is 11 percent.
Timtiman, under Section 26 of Provincial Ordinance No.05-021, should determine the fair market value in the locality of materials covered by the ordinance, collect all taxes and fees prescribed and inspect or cause the inspection of the permit holder’s Book of Account.
NO DOUBT ON LEGALITY
“The argument of the petitioner is specious because it is clear from the petition that the same seeks not only to declare as null, void and unconstitutional Executive Order No. 041 but also Section 6 of the Provincial Ordinance No. 05-027 that amended Section 65 of Provincial Ordinance No. 05-021,” Marin said.
The court added, “there is no doubt as to the legality of Sections 26 and 65 of Provincial Ordinance No. 05-021 as amended by Section 6 of Provincial Ordinance No. 05-027; it has been put to rest by Provincial Ordinance No. 06-010, enacted on June 14, 2006. Under Provincial Ordinance No. 06-010, the province levy and collect tax of ten percent of the fair market value in the locality per cubic meter ton of ordinary stones, sand and gravel.
“While the executive order is not a tax ordinance, the legal basis in the issuance is the cited provincial ordinances – which are both tax ordinances, the Executive Order No. 05-041 merely fixes the fair market value of the sand and gravel,” Marin pointed out.
The Sangguniang Panlalawigan (SP) of Aklan earlier enacted Provincial Ordinance No. 05-021, which repealed Provincial Ordinance No. 05-17.
On December 9, 2005, Marquez issued Executive Order No. 041, pursuant to Section 26 of Provincial Ordinance 05-021, to set the current fair market value of clay and sand and gravel in Aklan for tax purposes as determined by Timtiman.
But Fernandez questioned the executive order, saying, it fixed a higher rate of sand and gravel extraction fee as provided for in Provincial Ordinance No 05-017. He also maintained that Timtiman and the Local Finance Committee increased the tax levy per cubic meter pursuant to Provincial Ordinance No. 05-021 and Executive Order No. 041.
Fernandez said the amendment is illegal and unconstitutional since unbridled and absolute discretion is give to the executive officers to determine the tax levy which is contrary to the Provincial Ordinance No. 05-017.
Under Section 65 of Provincial Ordinance No. 05-021, as amended under Section 6 of Provincial Ordinance No. 05-027, tax levied and collected on sand and gravel and other quarry resources and small scale mining is 11 percent.
Timtiman, under Section 26 of Provincial Ordinance No.05-021, should determine the fair market value in the locality of materials covered by the ordinance, collect all taxes and fees prescribed and inspect or cause the inspection of the permit holder’s Book of Account.
NO DOUBT ON LEGALITY
“The argument of the petitioner is specious because it is clear from the petition that the same seeks not only to declare as null, void and unconstitutional Executive Order No. 041 but also Section 6 of the Provincial Ordinance No. 05-027 that amended Section 65 of Provincial Ordinance No. 05-021,” Marin said.
The court added, “there is no doubt as to the legality of Sections 26 and 65 of Provincial Ordinance No. 05-021 as amended by Section 6 of Provincial Ordinance No. 05-027; it has been put to rest by Provincial Ordinance No. 06-010, enacted on June 14, 2006. Under Provincial Ordinance No. 06-010, the province levy and collect tax of ten percent of the fair market value in the locality per cubic meter ton of ordinary stones, sand and gravel.
“While the executive order is not a tax ordinance, the legal basis in the issuance is the cited provincial ordinances – which are both tax ordinances, the Executive Order No. 05-041 merely fixes the fair market value of the sand and gravel,” Marin pointed out.
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