Free Legal Advice Philippines

CYBERBULLYING

2016-08-05T02:30:00.001-07:00

What is Cyberbullying?

Cyberbullying is like any other type of bullying except that it is done virtually or online through text messages, emails and social media platforms such as Facebook, Instagram, Twitter and others.

Cyberbullying could be as simple as sending invectives or threatening somebody through text messages, cursing or calling somebody names in facebook posts to disseminating sex video or those meant to depict a person as evil, bad, wrong doer, corrupt that defames and destroy one’s reputation.

The effect to the victims of cyberbullying is much more devastating than in ordinary bullying because of the far reaching extent of internet. The web knows no borders and boundaries and can practically be seen by the whole world with just one click of the finger.

In this jurisprudence, the Cybercrime Prevention Act is the closest law that addresses issues on cyberbullying and punishes online libel. Online or E-Libel, as defined under this law, is the unlawful or prohibited acts of libel as defined in Article 353 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

And Libel as defined under Article 353 of the said law is a public and malicious imputation of a crime, or of a vice, or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Given this provision in law, cyberbullying is now a punishable act and a grave offense punishable by one degree higher than that penalty provided under the Revised Penal Code.

RA No. 10175 or Cybercrime Prevention Act

2016-07-31T05:09:00.001-07:00

AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES

CHAPTER I
PRELIMINARY PROVISIONS

SECTION 1. Title. — This Act shall be known as the “Cybercrime Prevention Act of 2012”.

SEC. 2. Declaration of Policy. — The State recognizes the vital role of information and communications industries such as content production, telecommunications, broadcasting electronic commerce, and data processing, in the nation’s overall social and economic development. The State also recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access to exchange and/or delivery of information; and the need to protect and safeguard the integrity of computer, computer and communications systems, networks, and databases, and the confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal access by making punishable under the law such conduct or conducts. In this light, the State shall adopt sufficient powers to effectively prevent and combat such offenses by facilitating their detection, investigation, and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation.

SEC. 3. Definition of Terms. — For purposes of this Act, the following terms are hereby defined as follows:

(a) Access refers to the instruction, communication with, storing data in, retrieving data from, or otherwise making use of any resources of a computer system or communication network.

(b) Alteration refers to the modification or change, in form or substance, of an existing computer data or program.

(c) Communication refers to the transmission of information through ICT media, including voice, video and other forms of data.

(d) Computer refers to an electronic, magnetic, optical, electrochemical, or other data processing or communications device, or grouping of such devices, capable of performing logical, arithmetic, routing, or storage functions and which includes any storage facility or equipment or communications facility or equipment directly related to or operating in conjunction with such device. It covers any type of computer device including devices with data processing capabilities like mobile phones, smart phones, computer networks and other devices connected to the internet.

(e) Computer data refers to any representation of facts, information, or concepts in a form suitable for processing in a computer system including a program suitable to cause a computer system to perform a function and includes electronic documents and/or electronic data messages whether stored in local computer systems or online.

(f) Computer program refers to a set of instructions executed by the computer to achieve intended results.

(g) Computer system refers to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media.

(h) Without right refers to either: (i) conduct undertaken without or in excess of authority; or (ii) conduct not covered by established legal defenses, excuses, court orders, justifications, or relevant principles under the law.

(i) Cyber refers to a computer or a computer network, the electronic medium in which online communication takes place.

(j) Critical infrastructure refers to the computer systems, and/or networks, whether physical or virtual, and/or the computer programs, computer data and/or traffic data so vital to this country that the incapacity or destruction of or interference with such system and assets would have a debilitating impact on security, national or economic security, national public health and safety, or any combination of those matters.

(k) Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices, assurance and technologies that can be used to protect the cyber environment and organization and user’s assets.

(l) Database refers to a representation of information, knowledge, facts, concepts, or instructions which are being prepared, processed or stored or have been prepared, processed or stored in a formalized manner and which are intended for use in a computer system.

(m) Interception refers to listening to, recording, monitoring or surveillance of the content of communications, including procuring of the content of data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring.

(n) Service provider refers to:

(1) Any public or private entity that provides to users of its service the ability to communicate by means of a computer system; and

(2) Any other entity that processes or stores computer data on behalf of such communication service or users of such service.

(o) Subscriber’s information refers to any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services other than traffic or content data and by which identity can be established:

(1) The type of communication service used, the technical provisions taken thereto and the period of service;

(2) The subscriber’s identity, postal or geographic address, telephone and other access numbers, any assigned network address, billing and payment information, available on the basis of the service agreement or arrangement; and

(3) Any other available information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement.

(p) Traffic data or non-content data refers to any computer data other than the content of the communication including, but not limited to, the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.

CHAPTER II
PUNISHABLE ACTS

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

(2) Illegal Interception. – The interception made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data.

(3) Data Interference. — The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

(4) System Interference. — The intentional alteration or reckless hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses.

(5) Misuse of Devices.

(i) The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of:

(aa) A device, including a computer program, designed or adapted primarily for the purpose of committing any of the offenses under this Act; or

(bb) A computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it be used for the purpose of committing any of the offenses under this Act.

(ii) The possession of an item referred to in paragraphs 5(i)(aa) or (bb) above with intent to use said devices for the purpose of committing any of the offenses under this section.

(6) Cyber-squatting. – The acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration:

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

(b) Computer-related Offenses:

(1) Computer-related Forgery. —

(i) The input, alteration, or deletion of any computer data without right resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible; or

(ii) The act of knowingly using computer data which is the product of computer-related forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest design.

(2) Computer-related Fraud. — The unauthorized input, alteration, or deletion of computer data or program or interference in the functioning of a computer system, causing damage thereby with fraudulent intent: Provided, That if no

damage has yet been caused, the penalty imposable shall be one (1) degree lower.

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.

(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

(3) Unsolicited Commercial Communications. — The transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject. receipt of further commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

SEC. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.

SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

SEC. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

CHAPTER III
PENALTIES

SEC. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with imprisonment ofprision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with the penalties as enumerated in Republic Act No. 9775 or the “Anti-Child Pornography Act of 2009”: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or both.

SEC. 9. Corporate Liability. — When any of the punishable acts herein defined are knowingly committed on behalf of or for the benefit of a juridical person, by a natural person acting either individually or as part of an organ of the juridical person, who has a leading position within, based on: (a) a power of representation of the juridical person provided the act committed falls within the scope of such authority; (b) an authority to take decisions on behalf of the juridical person: Provided, That the act committed falls within the scope of such authority; or (c) an authority to exercise control within the juridical person, the juridical person shall be held liable for a fine equivalent to at least double the fines imposable in Section 7 up to a maximum of Ten million pesos (PhP10,000,000.00).

If the commission of any of the punishable acts herein defined was made possible due to the lack of supervision or control by a natural person referred to and described in the preceding paragraph, for the benefit of that juridical person by a natural person acting under its authority, the juridical person shall be held liable for a fine equivalent to at least double the fines imposable in Section 7 up to a maximum of Five million pesos (PhP5,000,000.00).

The liability imposed on the juridical person shall be without prejudice to the criminal liability of the natural person who has committed the offense.

CHAPTER IV
ENFORCEMENT AND IMPLEMENTATION

SEC. 10. Law Enforcement Authorities. — The National Bureau of Investigation (NBI) and the Philippine National Police (PNP) shall be responsible for the efficient and effective law enforcement of the provisions of this Act. The NBI and the PNP shall organize a cybercrime unit or center manned by special investigators to exclusively handle cases involving violations of this Act.

SEC. 11. Duties of Law Enforcement Authorities. — To ensure that the technical nature of cybercrime and its prevention is given focus and considering the procedures involved for international cooperation, law enforcement authorities specifically the computer or technology crime divisions or units responsible for the investigation of cybercrimes are required to submit timely and regular reports including pre-operation, post-operation and investigation results and such other documents as may be required to the Department of Justice (DOJ) for review and monitoring.

SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

SEC. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum period of six (6) months from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

SEC. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation.

SEC. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court.

SEC. 16. Custody of Computer Data. — All computer data, including content and traffic data, examined under a proper warrant shall, within forty-eight (48) hours after the expiration of the period fixed therein, be deposited with the court in a sealed package, and shall be accompanied by an affidavit of the law enforcement authority executing it stating the dates and times covered by the examination, and the law enforcement authority who may access the deposit, among other relevant data. The law enforcement authority shall also certify that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the package deposited with the court. The package so deposited shall not be opened, or the recordings replayed, or used in evidence, or then contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded.

SEC. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination.

SEC. 18. Exclusionary Rule. — Any evidence procured without a valid warrant or beyond the authority of the same shall be inadmissible for any proceeding before any court or tribunal.

SEC. 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

SEC. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities.

CHAPTER V
JURISDICTION

SEC. 21. Jurisdiction. — The Regional Trial Court shall have jurisdiction over any violation of the provisions of this Act. including any violation committed by a Filipino national regardless of the place of commission. Jurisdiction shall lie if any of the elements was committed within the Philippines or committed with the use of any computer system wholly or partly situated in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time the offense was committed, was in the Philippines.

There shall be designated special cybercrime courts manned by specially trained judges to handle cybercrime cases.

CHAPTER VI
INTERNATIONAL COOPERATION

Sec. 22. General Principles Relating to International Cooperation — All relevant international instruments on international cooperation in criminal matters, arrangements agreed on the basis of uniform or reciprocal legislation, and domestic laws, to the widest extent possible for the purposes of investigations or proceedings concerning criminal offenses related to computer systems and data, or for the collection of evidence in electronic form of a criminal, offense shall be given full force and effect.

CHAPTER VII
COMPETENT AUTHORITIES

SEC 23. Department of Justice (DOJ). — There is hereby created an Office of Cybercrime within the DOJ designated as the central authority in all matters related to international mutual assistance and extradition.

SEC. 24. Cybercrime Investigation and Coordinating Center. — There is hereby created, within thirty (30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among concerned agencies and for the formulation and enforcement of the national cybersecurity plan.

SEC. 25. Composition. — The CICC shall be headed by the Executive Director of the Information and Communications Technology Office under the Department of Science and Technology (ICTO-DOST) as Chairperson with the Director of the NBI as Vice Chairperson; the Chief of the PNP; Head of the DOJ Office of Cybercrime; and one (1) representative from the private sector and academe, as members. The CICC shall be manned by a secretariat of selected existing personnel and representatives from the different participating agencies.

SEC. 26. Powers and Functions. — The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance for the suppression of real-time commission of cybercrime offenses through a computer emergency response team (CERT);

(b) To coordinate the preparation of appropriate and effective measures to prevent and suppress cybercrime activities as provided for in this Act;

(d) To facilitate international cooperation on intelligence, investigations, training and capacity building related to cybercrime prevention, suppression and prosecution;

(e) To coordinate the support and participation of the business sector, local government units and nongovernment organizations in cybercrime prevention programs and other

related projects;

(f) To recommend the enactment of appropriate laws, issuances, measures and policies;

(g) To call upon any government agency to render assistance in the accomplishment of the CICC’s mandated tasks and functions; and

(h) To perform all other matters related to cybercrime prevention and suppression, including capacity building and such other functions and duties as may be necessary for the proper implementation of this Act.

CHAPTER VIII
FINAL PROVISIONS

SEC. 27. Appropriations. — The amount of Fifty million pesos (PhP50,000,000.00) shall be appropriated annually for the implementation of this Act.

SEC. 28. Implementing Rules and Regulations. — The ICTO-DOST, the DOJ and the Department of the Interior and Local Government (DILG) shall jointly formulate the necessary rules and regulations within ninety (90) days from approval of this Act, for its effective implementation.

SEC. 29. Separability Clause — If any provision of this Act is held invalid, the other provisions not affected shall remain in full force and effect.

SEC. 30. Repealing Clause. — All laws, decrees or rules inconsistent with this Act are hereby repealed or modified accordingly. Section 33(a) of Republic Act No. 8792 or the “Electronic Commerce Act” is hereby modified accordingly.

SEC. 31. Effectivity. — This Act shall take effect fifteen (15) days after the completion of its publication in the Official Gazette or in at least two (2) newspapers of general circulation.

The Bouncing Check Law and related circulars

2016-07-31T03:59:00.000-07:00

The Bouncing Check Law otherwise known as BP 22 or Batasang Pambansa No. 22, is an old special law, issued way back in 1979 which penalizes the issuance of worthless checks or bounced checks. These are checks that were issued by the maker or drawer of a check but were dishonored by his or her bank because of insufficient funds.

To be liable for violation of BP 22, the following essential elements must be present: (1) the making, drawing, and issuance of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor of the check for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.

The BP 22 penalty is imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court.

The bouncing check law is both criminal and civil. This means that a person who issues bounced check incurs both criminal and civil liability. However, with the issuance by the Supreme Court of Administrative Circular N0 13-2001 and following the doctrine laid down in Vaca vs. CA G.R. No. 131714, 16 November 1998, a judge may exercise discretion in the application of the penal provisions of BP 22, such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine along should be considered as the more appropriate penalty.

In the decision in Eduardo Vaca, v. Court of Appeals the Supreme Court modified the sentence imposed for violation of B.P. Blg. 22 by deleting the penalty of imprisonment and imposing only the penalty of fine in an amount double the amount of the check. This however does not decriminalize violations of BP 22 but merely sets the rule on preference on imposition of penalty. Simply put, fine is preferred in the imposition of penalty for the Bouncing Check Law rather than imprisonment if the circumstances as stated so warrant.

On the prescriptive period, the Bouncing Check Law is a special law that imposes a penalty of imprisonment of not less than thirty (30) days but not more than one year or by a fine for its violation. Thus, BP 22 prescribes in four (4) years in accordance with Act No. 3326 (People vs. Pangilinan, G.R. No. 152662, June 13, 2012).

Anti-Child Abuse Law

2013-09-05T03:58:00.000-07:00

Republic Act No. 7610 entitled “"Special Protection of Children Against Abuse, Exploitation and Discrimination Act” was enacted on June 17, 1992. The law is also sometimes referred to as the Anti-Child Abuse Act and provides special protection to children from all forms of abuse, neglect, cruelty exploitation and discrimination and other conditions, prejudicial to their development; provides sanctions for their commission and carry out a program for prevention and deterrence of and crisis intervention in situations of child abuse, exploitation and discrimination.

This is anchored under the principle of parens patriae, where the State should intervene on behalf of the child when the parent, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuse, exploitation and discrimination or when such acts against the child are committed by the said parent, guardian, teacher or person having care and custody of the same. It is the policy of the State to protect and rehabilitate children gravely threatened or endangered by circumstances which affect or will affect their survival and normal development and over which they have no control.

The law further states that the best interests of children shall be the paramount consideration in all actions concerning them, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, and legislative bodies, consistent with the principle of First Call for Children as enunciated in the United Nations Convention of the Rights of the Child. Every effort shall be exerted to promote the welfare of children and enhance their opportunities for a useful and happy life.

The law defines the following terms as follows:

"Children" refers to person below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition;

"Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.

"Circumstances which gravely threaten or endanger the survival and normal development of children" include, but are not limited to, the following;

(1) Being in a community where there is armed conflict or being affected by armed conflict-related activities;

(2) Working under conditions hazardous to life, safety and normal which unduly interfere with their normal development;

(3) Living in or fending for themselves in the streets of urban or rural areas without the care of parents or a guardian or basic services needed for a good quality of life;

(4) Being a member of a indigenous cultural community and/or living under conditions of extreme poverty or in an area which is underdeveloped and/or lacks or has inadequate access to basic services needed for a good quality of life;

(5) Being a victim of a man-made or natural disaster or calamity; or

(6) Circumstances analogous to those abovestated which endanger the life, safety or normal development of children.

"Comprehensive program against child abuse, exploitation and discrimination" refers to the coordinated program of services and facilities to protected children against:

(1) Child Prostitution and other sexual abuse;

(2) Child trafficking;

(3) Obscene publications and indecent shows;

(4) Other acts of abuses; and

(5) Circumstances which threaten or endanger the survival and normal development of children.

The law punishes the following acts:

1. Child Prostitution and Other Sexual Abuse as follows:

(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following:

(1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means;

(3) Taking advantage of influence or relationship to procure a child as prostitute;

(4) Threatening or using violence towards a child to engage him as a prostitute; or

(5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution.

(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and

(c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.

Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse (Section 5).

2. Attempt to Commit Child Prostitution

There is an attempt to commit child prostitution under Section 5, paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse (Section 5).

There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments. A penalty lower by two (2) degrees than that prescribed for the consummated felony under Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution under this Act, or, in the proper case, under the Revised Penal Code.

3. Child Trafficking.

Any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter, shall suffer the penalty of reclusion temporal to reclusion perpetua. The penalty shall be imposed in its maximum period when the victim is under twelve (12) years of age (Section 7).

4. Attempt to Commit Child Trafficking. –

There is an attempt to commit child trafficking under Section 7 of this Act:

(a) When a child travels alone to a foreign country without valid reason therefor and without clearance issued by the Department of Social Welfare and Development or written permit or justification from the child's parents or legal guardian;

(c) When a person, agency, establishment or child-caring institution recruits women or couples to bear children for the purpose of child trafficking; or

(d) When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking; or

(e) When a person engages in the act of finding children among low-income families, hospitals, clinics, nurseries, day-care centers, or other child-during institutions who can be offered for the purpose of child trafficking.

A penalty lower two (2) degrees than that prescribed for the consummated felony under Section 7 shall be imposed upon the principals of the attempt to commit child trafficking under this Act. (Section 8)

5. Obscene Publications and Indecent Shows.

Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period.

If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period.

Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause and/or allow such child to be employed or to participate in an obscene play, scene, act, movie or show or in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period (Section 9).

6. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. –

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period.

(b) Any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places shall suffer the penalty of prision mayor in its maximum period and a fine of not less than Fifty thousand pesos (P50,000): Provided, That this provision shall not apply to any person who is related within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty.

(c) Any person who shall induce, deliver or offer a minor to any one prohibited by this Act to keep or have in his company a minor as provided in the preceding paragraph shall suffer the penalty of prision mayor in its medium period and a fine of not less than Forty thousand pesos (P40,000); Provided, however, That should the perpetrator be an ascendant, stepparent or guardian of the minor, the penalty to be imposed shall be prision mayor in its maximum period, a fine of not less than Fifty thousand pesos (P50,000), and the loss of parental authority over the minor.

(d) Any person, owner, manager or one entrusted with the operation of any public or private place of accommodation, whether for occupancy, food, drink or otherwise, including residential places, who allows any person to take along with him to such place or places any minor herein described shall be imposed a penalty of prision mayor in its medium period and a fine of not less than Fifty thousand pesos (P50,000), and the loss of the license to operate such a place or establishment.

(e) Any person who shall use, coerce, force or intimidate a street child or any other child to;

(1) Beg or use begging as a means of living;

(2) Act as conduit or middlemen in drug trafficking or pushing; or

(3) Conduct any illegal activities, shall suffer the penalty of prision correccional in its medium period to reclusion perpetua.

For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age. The penalty for the commission of acts punishable under Article 337, 339, 340 and 341 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of qualified seduction, acts of lasciviousness with the consent of the offended party, corruption of minors, and white slave trade, respectively, shall be one (1) degree higher than that imposed by law when the victim is under twelve (12) years age.

The victim of the acts committed under this section shall be entrusted to the care of the Department of Social Welfare and Development (Section 10).

Sanctions of Establishments or Enterprises which Promote, Facilitate, or Conduct Activities Constituting Child Prostitution and Other Sexual Abuse, Child Trafficking, Obscene Publications and Indecent Shows, and Other Acts of Abuse.

All establishments and enterprises which promote or facilitate child prostitution and other sexual abuse, child trafficking, obscene publications and indecent shows, and other acts of abuse shall be immediately closed and their authority or license to operate cancelled, without prejudice to the owner or manager thereof being prosecuted under this Act and/or the Revised Penal Code, as amended, or special laws. A sign with the words "off limits" shall be conspicuously displayed outside the establishments or enterprises by the Department of Social Welfare and Development for such period which shall not be less than one (1) year, as the Department may determine. The unauthorized removal of such sign shall be punishable by prision correccional.

An establishment shall be deemed to promote or facilitate child prostitution and other sexual abuse, child trafficking, obscene publications and indecent shows, and other acts of abuse if the acts constituting the same occur in the premises of said establishment under this Act or in violation of the Revised Penal Code, as amended. An enterprise such as a sauna, travel agency, or recruitment agency which: promotes the aforementioned acts as part of a tour for foreign tourists; exhibits children in a lewd or indecent show; provides child masseurs for adults of the same or opposite sex and said services include any lascivious conduct with the customers; or solicits children or activities constituting the aforementioned acts shall be deemed to have committed the acts penalized herein (Section 11).

Parents in law can be impleaded in the Protection Order in relation to the provisions on Law on Violence against women and their children

2013-09-01T07:52:00.000-07:00

In the case of Sharica Mari l. Go-Tan vs. Sps. Tan, G.R. No. 168852, September 30, 2008, the Supreme court ruled that a woman can implead her parent/s in law in her petition for issuance of protection order in relation to the provisions of law on Violence against women and their children(RA 9262). The respondents in this case contend that they are not covered by R.A. No. 9262 since Section 3 thereof explicitly provides that the offender should be related to the victim only by marriage, a former marriage, or a dating or sexual relationship. They further argued that respondents cannot be characterized as indispensable or necessary parties, since their presence in the case is not only unnecessary but altogether illegal, considering the non-inclusion of in-laws as offenders under Section 3 of R.A. No. 9262.

The Petitioner in this case submit that R.A. No. 9262 must be understood in the light of the provisions of Section 47 of R.A. No. 9262 which explicitly provides for the suppletory application of the Revised Penal Code (RPC) and, accordingly, the provision on “conspiracy” under Article 8 of the RPC can be suppletorily applied to R.A. No. 9262; that her husband and parents in law had community of design and purpose in tormenting her by giving her insufficient financial support; harassing and pressuring her to be ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally and physically; that respondents should be included as indispensable or necessary parties for complete resolution of the case.

The Court ruled in favour of the petitioner stating that while the said provision provides that the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the Revised Penal Code.

Indeed, Section 47 of R.A. No. 9262 expressly provides for the suppletory application of the RPC, thus:

SEC. 47. Suppletory Application. - For purposes of this Act, the Revised Penal Code and other applicable laws, shall have suppletory application. (Emphasis supplied)

Thus conformably with the foregoing, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or modality of participation of each of them becomes secondary, since all the conspirators are principals.

The court further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of violence against women and their children may be committed by an offender through another, thus:

SEC. 5. Acts of Violence Against Women and Their Children. - The crime of violence against women and their children is committed through any of the following acts:

x x x

(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts:

(1) Stalking or following the woman or her child in public or private places;

(2) Peering in the window or lingering outside the residence of the woman or her child;

(3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will;

(4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and

(5) Engaging in any form of harassment or violence; x x x. (Emphasis supplied)

In addition, the court said, that the protection order that may be issued for the purpose of preventing further acts of violence against the woman or her child may include individuals other than the offending husband, thus:

SEC. 8. Protection Orders. – x x x The protection orders that may be issued under this Act shall include any, some or all of the following reliefs:

(a) Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act;

(b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly; x x x (Emphasis supplied)

Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus:

SEC. 4. Construction. - This Act shall be liberally construed to promote the protection and safety of victims of violence against women and their children. (Emphasis supplied).

It bears mention that the intent of the statute is the law and that this intent must be effectuated by the courts. In the present case, the express language of R.A. No. 9262 reflects the intent of the legislature for liberal construction as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit - the protection and safety of victims of violence against women and children.

(In this case, the High Court reversed the Order of the Regional Trial Court in so far as the dismissal is concerned thus ruling on the issue of inclusion of the parents in law in the Protection Order. It did not delve on the presence or absence of conspiracy, the High Court, being not a trier of facts.)

One act enough to constitute Violation of Law on Violence Against Women and their Children (VAWC)

2013-08-30T18:25:00.000-07:00

In the case of Ang y Pascua vs. CA and G.R. No. 182835, April 20, 2010, the one act of a former boyfriend sending to the girl the picture of a naked woman, not her, but with her face on it was considered an act violence against women punishable under RA 9262.

The antecedent facts of the case show that complainant (herein called Ms. A) and accused (herein called Mr. X) were classmates at a University in Aurora Province. Mr. X courted Miss A and they became “on-and-off” sweethearts towards the end of 2004. When Miss A learned afterwards that Mr. X had taken a live-in partner (now his wife), whom he had gotten pregnant, Miss A broke up with him.

Before Mr. X got married, however, he got in touch with Miss A and tried to convince her to elope with him, saying that he did not love the woman he was about to marry. Miss A rejected the proposal and told Mr. X to take on his responsibility to the other woman and their child. Miss A changed her cellphone number but Mr. X somehow managed to get hold of it and sent her text messages. Mr. X used two cellphone numbers for sending his messages, namely, 0920-4769301 and 0921-8084768. Miss A replied to his text messages but it was to ask him to leave her alone.

In the early morning of June 5, 2005, Miss A received through multimedia message service (MMS) a picture of a naked woman with spread legs and with Miss A’s face superimposed on the figure (Exhibit A). The sender’s cellphone number, stated in the message, was 0921-8084768, one of the numbers that Mr. X used. Miss A surmised that he copied the picture of her face from a shot he took when they were in Baguio in 2003 (Exhibit B).

After she got the obscene picture, Miss A got other text messages from Mr. X. He boasted that it would be easy for him to create similarly scandalous pictures of her. And he threatened to spread the picture he sent through the internet. One of the messages he sent to Miss A, written in text messaging shorthand, read: “Madali lang ikalat yun, my chatrum ang tarlac rayt pwede ring send sa lahat ng chatter.”

Miss A sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police supervision, Miss A contacted Mr. X through the cellphone numbers he used in sending the picture and his text messages. Miss A asked Mr. X to meet her at the Lorentess Resort in Brgy. Ramada, Maria Aurora, and he did. He came in a motorcycle. After parking it, he walked towards Miss A but the waiting police officers intercepted and arrested him. They searched him and seized his Sony Ericsson P900 cellphone and several SIM cards. While Mr. X was being questioned at the police station, he shouted at Miss A: “Malandi ka kasi!”

Mr. X got the sender’s number and, pretending to be Miss A, contacted the person. Mr. X claims that he got back obscene messages from the prankster, which he forwarded to Miss A from his cellphone. This explained, he said, why the obscene messages appeared to have originated from his cellphone number. Mr. X claims that it was Miss A herself who sent the obscene picture to him. He presented six pictures of a woman whom he identified as Miss A.

After trial, the Regional Trial Court found the accused Mr. X guilty beyond reasonable doubt of violation of Section 5(h) RA 9262 and which was later on affirmed by the Court of Appeals.

On appeal to the Supreme Court, one of the issues raised was whether or not a single act of harassment, like the sending of the nude picture in this case, already constitutes a violation of Section 5(h) of R.A. 9262

Mr. X argues that the one act of sending an offensive picture should not be considered a form of harassment. He claims that such would unduly ruin him personally and set a very dangerous precedent. But Section 3(a) of R.A. 9262 punishes “any act or series of acts” that constitutes violence against women. This means that a single act of harassment, which translates into violence, would be enough. The object of the law is to protect women and children. Punishing only violence that is repeatedly committed would license isolated ones.

Mr. X alleges that today’s women, like Miss A, are so used to obscene communications that her getting one could not possibly have produced alarm in her or caused her substantial emotional or psychological distress. He claims having previously exchanged obscene pictures with Miss A such that she was already desensitized by them.

In resolving the case, the Court cited the following pertinent provisions of RA 9262:

Section 3(a) of R.A. 9262 provides that violence against women includes an act or acts of a person against a woman with whom he has or had a sexual or dating relationship. Thus:

SEC. 3. Definition of Terms. – As used in this Act,

(a) “Violence against women and their children” refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.

x x x x

Section 5 identifies the act or acts that constitute violence against women and these include any form of harassment that causes substantial emotional or psychological distress to a woman. Thus:

SEC. 5. Acts of Violence Against Women and Their Children. – The crime of violence against women and their children is committed through any of the following acts:

x x x x

h. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts:

x x x x

5. Engaging in any form of harassment or violence;

The Court stated that it cannot measure the trauma that Miss A experienced based on Mr. X’s low regard for the alleged moral sensibilities of today’s youth. What is obscene and injurious to an offended woman can of course only be determined based on the circumstances of each case. Here, the naked woman on the picture, her legs spread open and bearing Miss A’s head and face, was clearly an obscene picture and, to Miss A a revolting and offensive one. Surely, any woman like Miss A, who is not in the pornography trade, would be scandalized and pained if she sees herself in such a picture. What makes it further terrifying is that, as Miss A testified, Mr. X sent the picture with a threat to post it in the internet for all to see. That must have given her a nightmare.

In conclusion, the Court found that the prosecution has proved each and every element of the crime charged beyond reasonable doubt and affirmed lower court’s decision finding Mr. X guilty for violation of Section 5(h) of RA 9262.

Violence against Women

2012-10-15T17:45:00.001-07:00

The law on Anti-Violence Against Women and Their Children was enacted in 2004, aimed at protecting women and their children against physical, sexual, psychological and economic abuses. The law punishes the following acts under Section 5 thereof and are considered as crime of violence against women and their children:

(a) Causing physical harm to the woman or her child;

(b) Threatening to cause the woman or her child physical harm;

(d) Placing the woman or her child in fear of imminent physical harm;

(e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child.

This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct:

(1) Threatening to deprive or actually depriving the woman or her child of custody to her/his family;

(2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support;

(3) Depriving or threatening to deprive the woman or her child of a legal right;

(4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own mon4ey or properties, or solely controlling the conjugal or common money, or properties;

(f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions;

(g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family;

(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts:

(1) Stalking or following the woman or her child in public or private places;

(2) Peering in the window or lingering outside the residence of the woman or her child;

(3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will;

(4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and

(5) Engaging in any form of harassment or violence;

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman's child/children.

The foregoing are considered as Violence against women and can be made basis for filing of a criminal action in Philippine courts.

Know the basis of legal fees

2012-08-31T22:16:00.001-07:00

A.M. NO. 00-2-01-SC

March 01, 2000

RULE 141

Legal Fees

Section 1. Payment of fees. — Upon the filing of the pleading or other application which initiates an action or proceeding, the fees prescribed therefor shall be paid in full. (n)

Section 2. Fees in lien. — Where the court in its final judgment awards a claim not alleged, or a relief different from, or more than that claimed in the pleading, the party concerned shall pay the additional fees which shall constitute a lien on the judgment in satisfaction of said lien. The clerk of court shall assess and collect the corresponding fees. (n)

Section 3. Persons authorized to collect legal fees. — Except as otherwise provided in this rule, the officers and persons hereinafter mentioned, together with their assistants and deputies, may demand, receive, and take the several fees hereinafter mentioned and allowed for any business by them respectively done by virtue of their several offices, and no more. All fees so collected shall be forthwith remitted to the Supreme Court. The fees collected shall accrue to the general fund. However, all increases in the legal fees prescribed in amendments to this rule as well as new legal fees prescribed herein shall pertain to the Judiciary Development Fund as established by law. The persons herein authorized to collect legal fees shall be accountable officers and shall be required to post bond in such amount as prescribed by law. (la)

Section 4. Clerks of the Court of Appeals and of the Supreme Court. —

(a) For filing an action, proceeding, appeal by notice or record on appeal when required, entering appearance of the parties, entering orders of the court, filing and docketing all motions, docketing of case on all proper dockets, and indexing the same, entering, recording and certification of judgment and remanding of records of the lower court, taxing the costs, administering all necessary oaths or affirmation in the action or proceeding, recording the opinion of the court, and issuing all necessary process in the action or proceeding not herein otherwise provided for, each action or special proceeding, five hundred (P500.00) pesos;

(b) For the performance of marriage ceremony, including issuance of certificate of marriage, three hundred (P300.00) pesos.

(c) For furnishing transcripts of the record or copies of any record, judgment, or entry of which any person is entitled to demand and receive a copy, for each page, four (P4.00) pesos;

(d) For each certificate not in process, thirty (P30.00) pesos;

(e) For every search for anything above a year's standing and reading the same, fifteen (P15.00) pesos;

(f) For a commission on all money coming into his hands rules or order of the court and caring for the same, two and one-half (2.5%) percent on all sums not exceeding four thousand (P4,000.00) pesos, and one and one-half (1.5%) percent upon all sums in excess of four thousand (P4,000.0) pesos, and one (1%) percent on all sums in excess of forty thousand (P40,000.00) pesos. (4a)

Section 5. Fees to be paid by the advancing party. — The fees of the clerk of the Court of Appeals or of the Supreme Court shall be paid him at the same time of the entry of the action or proceeding in the court by the party who enters the same by appeal or otherwise, and the clerk shall in all cases give a receipt for the same and shall enter the amount received upon his book, specifying the date when received, person from whom received, name of action in which received and amount received. If the fees are not paid, the court may refuse to proceed with the action until they are paid and may dismiss the appeal or the proceeding. (3a)

Section 6. Fees of bar candidates. —

(a) For filing the application for admission to the bar, whether admitted to the examination or not, one thousand and seven hundred fifty (P1,750.00) pesos for new applicants, and for repeaters, plus the additional amount of two hundred (P200.00) pesos multiplied by the number of times the applicant has failed in the bar examinations;

(b) For admission to the bar, including oath taking, signing of the roll of attorneys, the issuance of diploma of admission to the Philippine Bar, one thousand and seven hundred fifty (P1,750.00) pesos;

1. Certification of admission to the Philippine Bar P50.00

2. Certificate of good standing (local) 50.00

3. Certificate of good standing (foreign) 100.00

4. Verification of membership in the bar 50.00

5. Certificate of grades in the bar examinations 50.00

6. Other certification of records at the Bar

Office, per page 15.00

7. A duplicate diploma of admission to the Philippine Bar 500.00

For services in connection with the return of examination notebooks to examinees, a fee of thirty (P30.00) pesos shall also be charged. (6a)

Section 7. Clerks of Regional Trial Courts. —

(a) For filing an action or a permissive counterclaim or money claim against an estate not based on judgment, or for filing with leave of court a third-party, fourth-party, etc., complaint, or a complaint in intervention, and for all clerical services in the same, if the total sum claimed, exclusive of interest, or the stated value of the property in litigation, is:

1. Less than P100,000.00 P500.00

2. P100,000.00 or more but less than P150,000.00 P800.00

3. P150,000.00 or more but less than P200,000.00 P1,000.00

4. P200,000.00 or more but less that P250,000.00 P1,500.00

5. P250,000.00 or more but less than P300,000.00 P1,750.00

6. P300,000.00 or more but less than P350,000.00 P2,000.00

7. P350,000.00 or more but not more than P400,000.00 P2,250.00

8. For each P1,000.00 in excess of 400,000.00 P10.00

(b) For filing

1. Actions where the value of the subject matter cannot be estimated P600.00

2. Special civil actions except judicial foreclosure of mortgage which shall be governed by paragraph (a) above 600.00

3. All other actions not involving property 600.00

In a real action, the assessed value of the property, or if there is none, the estimated value thereof shall be alleged by the claimant and shall be the basis in computing the fees.

(c) For filing requests for extrajudicial foreclosure of real estate or chattel mortgage, if the amount of indebtedness, or the mortgagee's claim is:

1. Less than P50,000.00 P275.00

2. P50,000.00 or more but less than P100,000.00 P400.00

3. P100,000.00 or more but less than P150,000.00 P500.00

4. P150,000.00 or more but less than P200,000.00 P650.00

5. P200,000.00 or more but less than P250,000.00 P1,000.00

6. P250,000.00 or more but less than P300,000.00 P1,250.00

7. P300,000.00 or more than but less than P400,000.00 P1,500.00

8. P400,000.00 or more but less than P500,000.00 P1,750.00

9. P500,000.00 or more but not less than P1,000,000.00 P2,000.00

10. Fore each P1,000.00 in excess of P1,000,000.00 P10.00

(d) For initiating proceedings for the allowances of wills, granting letters of administration, appointment of guardians, trustees, and other special proceedings, the fees payable shall be collected in accordance with the value of the property involved in the proceedings, which must be stated in the application or petition, as follows:

1. More than P100,000.00 but less than P150,000.00 P2,000.00

2. P150,000.00 or more but less than P200,000.00 2,250.00

3. P200,000.00 or more but less than P250,000.00 2,500.00

4. P250,000.00 or more but less than P300,000.00 2,750.00

5. P300,000.00 or more but less than P350,000.00 3,000.00

6. P350,000.00 or more but not more than P400,000.00 3,250.00

7. For each P1,000.00 in excess of P400,000.00 10.00

If the value of the estate as definitely appraised by the court is more than the value declared in the application, the difference of fee shall be paid: provided that a certificate from the clerk of court that the proper fees have been paid shall be required prior to the closure of the proceedings.

(e) for filing petitions for naturalization or other modes of acquisition of citizenship, two thousand P2,000.00) pesos;

(f) For filing petitions for adoption, support, annulment of marriage, legal separation and other actions or proceedings under the Family Code, two hundred (P200.00) pesos;

If the proceedings involve separation of property, an additional fee corresponding to the value of the property involved shall be collected, computed in accordance with the rates for special proceedings.

(g) For all other special proceedings not concerning property, two hundred (P200.00) pesos;

(h) For the performance of the marriage ceremony including issuance of certificate of marriage, three hundred (P300.00) pesos;

(i) For filing an application for commission as notary public, five hundred (P500.00) pesos;

(j) For certified copies of any paper, record, decree, judgment, or entry thereof for each page, four (P4.00) and fifteen (P15.00) pesos for certification;

(k) For a commission on all money coming into the clerks' hands by law, rule, order or writ of court and caring for the same, one and one-half (1.5%) per centum on all sums not exceeding forty thousand (P40,000.00) pesos, and one (1%) per centum on all sums in excess of forty thousand (P40,000.00) pesos.

(l) For any other services as clerk not provided in this section, one hundred and fifty (P150.00) pesos shall be collected. (7a)

Section 8. Clerks of Courts of the First Level. —

(a) For each civil action or proceeding, where the value of the subject matter involved, or the amount of the demand, inclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs is:

1. Not more than P20,000.00 P150.00

2. More than P20,000.00 but not more than P100,000.00 500.00

3. More than P100,000.00 but not more than P200,000.00 1,250.00

4. More than P200,000.00 but not more than P300,000.00 1,750.00

5. More than P300,000.00 but not more than P400,000.00 2,500.00

In a real action, other than for forcible entry and unlawful detainer, the assessed value of the property or if not declared for taxation purposes, the assessed value of the adjacent lots, or if there is none, the estimated value thereof shall be alleged by the claimant and shall be the basis in computing the fees.

(b) For initiating proceedings for the allowance of wills, granting of letters of administration and settlement of estates of small value, where the value of the estate is:

1. Not more than P20,000.00 P250.00

2. More than P20,000.00 but not

more than P100,000.00 1,350.00

3. More than P100,000.00 but not

more than P200,000.00 2,000.00

4. For each proceeding other than the allowance of wills (probate) granting of letters of administration, settlement of estate of small value, two hundred (P200.00) pesos;

(d) For appeals in all actions or proceedings, including forcible entry and detainer cases, taken from courts of first level, two hundred (P200.00) pesos

(e) For the performance of marriage ceremony, including issuance of certificate of marriage, three hundred (P300.00) pesos;

(f) For taking affidavit, twenty-five (P25.00) pesos;

(g) For taking acknowledgment, thirty (P30.00) pesos;

(h) For taking and certifying depositions, including oath, per page, eight (P8.00) pesos;

(i) For certified copies of any record, per page, ten (P10.00) pesos;

(j) For stamping and registering books as required by articles nineteen and thirty-six of the Code of Commerce each book, thirty (P30.00) pesos;

(k) For performing notarial acts for which fees are not specifically fixed in this section, the same fees which notaries public are entitled to receive (8a)

Section 9. Sheriffs and other persons serving processes. —

(a) For serving summons and copy of complaint, for each defendant, sixty (P60.00) pesos;

(b) For serving subpoenas in civil action or proceeding, for each witness to be served, twenty-four (P24.00) pesos;

(d) For serving temporary restraining order, or writ of injunction, preliminary or final, of any court, sixty (P60.00) pesos;

(e) For executing a writ of replevin, sixty (P60.00) pesos;

(f) For filing bonds or other instruments of indemnity or security in provisional remedies, for each bond or instrument, fifty (P50.00) pesos;

(g) For executing a writ or process to place a party in possession of the real estates, one hundred and fifty (P150.00) pesos;

(h) For advertising a sale, besides cost of publication, seventy-five (P75.00) pesos;

(i) For taking inventory of goods levied upon when the inventory is ordered by the court, one hundred and fifty (P150.00) pesos per day of actual inventory work.

(j) For levying on execution on personal or real property, seventy-five (P75.00) pesos;

(k) For issuing a notice of garnishment, for each notice, thirty (P30.00) pesos;

(l) For money collected by him by order, execution, attachment, or any other process, judicial or extrajudicial, the following sums, to wit:

1. On the first four thousand (P4,000.00) pesos, five (5%) per centum

2. On all sums in excess of four thousand (P4,000.00) pesos, two and one-half (2.5%) per centum

In addition to the fees hereinabove fixed, the party requesting the process of any court, preliminary, incidental, or final, shall pay the sheriff's expenses in serving or executing the process, or safeguarding the property levied upon, attached or seized, including kilometrage for each kilometer of travel, guard's fees, warehousing and similar charges, in an amount estimated by the sheriff, subject to the approval of the court. Upon approval of said estimated expenses, the interested party shall deposit such amount with the clerk of court and ex officio sheriff, who shall disburse the same to the deputy sheriff assigned to effect the process, subject to liquidation within the same period for rendering a return on the process. Any unspent amount shall be refunded to the party making the deposit. A full report shall be submitted by the deputy sheriff assigned with his return, and the sheriff's expenses shall be taxed as costs against the judgment debtor. (9a)

Section 10. Stenographers. — Stenographers shall give certified transcript of notes taken by them to every person requesting the same upon payment of (a) six (P6.00) pesos for each page not less than two hundred and fifty words before the appeal is taken and (b) three pesos and sixty centavos (P3.60) for the same page, after the filing of the appeal, provided, however that one-third of the total charges shall be paid to the court and the remaining two-thirds to the stenographer concerned (10a)

Section 11. Notaries. — No notary public shall charge or receive for any service rendered by him any fee, remuneration or compensation in excess of those expressly prescribed in the following schedule:

(a) For protests of drafts, bills or exchange, or promissory notes for non-acceptance or non-payment and for notice thereof, thirty-six (P36.00) pesos;

(b) For the registration of such protest and safekeeping of the same thirty-six (P36.00) pesos;

(d) For sworn statement concerning correctness of any account or other document, thirty-six (P36.00) pesos;

(e) For each oath of affirmation, thirty-six (P36.00) pesos;

(f) For receiving evidence of indebtedness to be sent outside, thirty-six (P36.00) pesos;

(g) For issuing a certified copy of all or part of his notarial register or notarial records, for each page, thirty-six (P36.00) pesos;

(h) For taking depositions, for each page, thirty-six (P36.00) pesos; and

(i) For acknowledging other documents not enumerated in this section, thirty-six (P36.00) pesos. (11a)

Section 12. Other officers taking depositions. — Other officers taking depositions shall receive the same compensation as above provided for notaries public for taking and certifying depositions. (10)

Section 13. Witness fees. — (a) Witnesses in the Supreme Court, in the Court of Appeals and in the Regional Trial Courts, either in actions or special proceedings, shall be entitled to one hundred (P100.00) pesos per day inclusive of travel time;

(b) Witnesses before courts of the first level shall be allowed fifty (P50.00) pesos per day;

(c) Fees to which witnesses may be entitled in a civil action shall be allowed, on a certification of the clerk of court or judge of his appearance in the case. A witness shall not be allowed compensation for his attendance in more than one case or more than one side of the same case at the same time, but may elect in which of several cases or on which side of a case, when he is summoned by both sides, to claim his attendance. A person who is compelled to attend court on other business shall not be paid as witness. (11a)

Section 14. Fees of appraisers. — Appraisers appointed to appraisers appointed to appraise the estate of a ward of a deceased person shall each receive a compensation of two hundred (P200.00) pesos per day for the time actually and necessarily employed in the performance of their duties and in making their reports, which fees, in each instance, shall be paid out of the estate of the ward or deceased person, as the case may be. Any actual and necessary traveling expenses incurred in the performance of their duties of such appraisers may likewise be allowed and paid out of the estate. (12a)

Section 15. Fees of commissioners in eminent domain proceedings. — The commissioners appointed to appraise land sought to be condemned for public uses in accordance with these rules shall each receive a compensation of two hundred (P200.00) pesos per day for the time actually and necessarily employed in the performance of their duties and in making their report to the court, which fees shall be taxed as part of the costs of the proceedings. (13a)

Section 16. Fees of commissioners in proceedings for partition of real state. — The commissioners appointed to make partition of real state shall each receive a compensation of two hundred (P200.00) pesos per day for the time actually and necessarily employed in the performance of their duties and in making their report to the court, which fees shall be taxed as a part of the costs of the proceedings. (14a)

Section 17. Fees, and the account thereof. — The clerk, under the direction of the judge, shall keep a book in which shall be entered the items of fees which have accrued for the transaction of businesses covered by the provisions of this rule, for which fees are payable, specifying for what business each time of fees has accrued. Receipts shall be given for all fees received and they shall be accounted for in the manner provided in relation to the fees of clerks of courts in actions. The book of fees kept by the clerk shall be accounted for in the manner provided in relation of the fees of the clerk of court in inspection of auditing officer and other interested therein. (15)

Section 18. Indigent-litigants exempts from payment of legal fees. — Indigent litigants (a) whose gross income and that of their immediate family do not exceed four thousand (P4,000.00) pesos a month if residing in Metro Manila, and three thousand (P3,000.00) pesos a month if residing outside Metro Manila, and (b) who do not own real property with an assessed value of more than fifty thousand (P50,000.00) pesos shall be exempt from the payment of legal fees.

The legal fees shall be a lien on any judgment rendered in the case favorably to the indigent litigant, unless the court otherwise provides.

To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn a gross income abovementioned, nor they own any real property with the assessed value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigant's affidavit.

Any falsity in the affidavit of a litigant or disinterested person shall be sufficient cause to strike out the pleading of that party, without prejudice to whatever criminal liability may have been incurred. (16a)

Section 19. In addition to the fees imposed in the preceding sections, a victim-compensation fee of five (P5.00) pesos pursuant to Rep. Act. No. 7309 shall be assessed and collected for the filing of every complaint or petition initiating an ordinary civil action, special civil action or special proceeding in the trial courts including civil actions impliedly instituted with criminal actions under Rule 111, Revised Rules of Criminal Procedure where a filing fee is likewise collected. All sums collected shall be remitted to the Department of Justice very quarter by the Clerk of Court concerned. (18-A)

Section 20. Other fees. — The following fees shall also be collected by the clerks of Regional Trial Courts or courts of the first level, as the case may be:

(a) In estafa cases where the offended party fails to manifest within fifteen (15) days following the filing of the information that the civil liability arising from the crime has been or would be separated prosecuted:

1. Less than P100,000.00 P500.00

2. P100,000.00 or more but less than P150,000.00 P800.00

3. P150,000.00 or more but less than P200,000.00 P1,000.00

4. P200,000.00 or more but less than P250,000.00 P1,500.00

5. P250,000.00 or more but less than P300,000.00 P1,750.00

6. P300,000.00 or more but less than P350,000.00 P2,000.00

7. P350,000.00 or more but no more than P400,000.00 P2,250.00

8. For each P1,000.00 in excess of P400,000.00 P10.00

(b) For motions for postponement after completion of the pre-trial stage, one hundred pesos (P100.00) for the first, and an additional fifty pesos (P50.00) for every postponement thereafter based on that for the immediately preceding motion: Provided, however, that no fee shall be imposed when the motion is found to be based on justifiable and compelling reason;

(d) For applications for and entries of certificates of sale and final deeds of sale in extra-judicial foreclosures of mortgages, three hundred (P300.00) pesos;

(e) For applications for and certificates of sale in notarial foreclosures:

1. On the first four thousand (P4,000.00) pesos, five (5%) per cent;

2. On all sums in excess of four thousand (P4,000.00) pesos, two and one half (2.5%) per cent (A.M. NO. 99-8-01-SC, September 14, 1999)

Section 21. Government exempt. — The Republic of the Philippines, its agencies and instrumentalities, are exempt from paying the legal fees provided in this rule, Local governments and government-owned or controlled corporations with or without independent charters are not exempt from paying such fees. (19)

This Resolution shall take effect on the 1st day of March, 2000, and shall be published in two (2) newspapers of general circulation not later than the 15th of February 2000

Rule on Custody of Minors

2012-08-18T06:25:00.001-07:00

A.M. No. 03-04-04-SC 2003-04-22]

RULE ON CUSTODY OF MINORS

AND WRIT OF HABEAS CORPUS

SECTION 1. Applicability. - This rule shall apply to petitions for custody of minors and writs of habeas corpus in relation thereto.

The Rules of Court shall apply suppletorily.

SEC. 2. Petition for custody of minors; who may file.- A verified petition for the rightful custody of a minor may be filed by any person claiming such right. The party against whom it may be filed shall be designated as the respondent.

SEC. 3. Where to file petition. - The petition for custody of minors shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may be found.

SEC. 4. Contents of petition. - The verified petition shall allege the following:

(a) The personal circumstances of the petitioner and of the respondent;
(b) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent;
(c) The material operative facts constituting deprivation of custody; and
(d) Such other matters which are relevant to the custody of the minor.

The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner must sign personally.

SEC. 5. Summons; personal service on respondent. - If the court is satisfied that the petition is sufficient in form and substance, it shall direct the clerk of court to issue summons, which shall be served together with a copy of the petition personally on the respondent.

SEC. 6. Motion to Dismiss. - A motion to dismiss the petition is not allowed except on the ground of lack of jurisdiction over the subject matter or over the parties. Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer.

SEC. 7. Verified Answer. - The respondent shall file an answer to the petition, personally verified by him, within five days after service of summons and a copy of the petition.

SEC. 8. Case study; duty of social worker. - Upon the filing of the verified answer or the expiration of the period to file it, the court may order a social worker to make a case study of the minor and the parties and to submit a report and recommendation to the court at least three days before the scheduled pre-trial.

SEC. 9. Notice of mandatory pre-trial. - Within fifteen days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order: (1) fixing a date for the pre-trial conference; (2) directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure receipt thereof by the adverse party at least three days before the date of pre-trial; and (3) requiring the respondent to present the minor before the court.

The notice of its order shall be served separately on both the parties and their respective counsels. The pre-trial is mandatory.

SEC. 10. Contents of pre-trial brief. - The pre-trial brief shall contain the following:

(a) A statement of the willingness of the parties to enter into agreements that may be allowed by law, indicating its terms;
(b) A concise statement of their respective claims together with the applicable laws and authorities;
(c) Admitted facts and proposed stipulations of facts;
(d) The disputed factual and legal issues;
(e) All the evidence to be presented, briefly stating or describing its nature and purpose;
(f) The number and names of the witnesses and their respective affidavits which shall serve as the affiant's testimony on direct examination; and
(g) Such other matters as the court may require to be included in the pre-trial brief.

Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial.

SEC. 11. Effect of failure to appear at the pre-trial.-

(a) If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed, unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner.
(b) If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall be allowed to present his evidence ex parte. The court shall then render judgment on the basis of the pleadings and the evidence thus presented.

SEC. 12. What may be done at pre-trial. - At the pre-trial, the parties may agree on the custody of the minor. If the parties fail to agree, the court may refer the matter to a mediator who shall have five days to effect an agreement between the parties. If the issue is not settled through mediation, the court shall proceed with the pre-trial conference, on which occasion it shall consider such other matters as may aid in the prompt disposition of the petition.

SEC. 13. Provisional order awarding custody. - After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody:

(a) Both parents jointly;
(b) Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit;
(c) The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified;
(d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;
(e) The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or
(f) Any other person or institution the court may deem suitable to provide proper care and guidance for the minor.

SEC. 14. Factors to consider in determining custody. - In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.

The court shall also consider the following:

(a) Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or emotional violence which endangers the safety and best interests of the minor;
(b) The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent;
(e) The nature and frequency of contact with both parents;
(f) Habitual use of alcohol, dangerous drugs or regulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and
(i) The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit.

SEC. 15. Temporary visitation rights. - The court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents, unless the court finds said parent or parents unfit or disqualified.

The temporary custodian shall give the court and non custodial parent or parents at least five days' notice of any plan to change the residence of the minor or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the non-custodial parent or parents.

SEC. 16. Hold Departure Order. - The minor child subject of the petition shall not be brought out of the country without prior order from the court while the petition is pending.

The court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the minor from the Philippines without the permission of the court.

The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order within twenty-four hours from its issuance and through the fastest available means of transmittal.

The hold departure order shall contain the following information:

(a) The complete name (including the middle name), the date and place of birth, the nationality and the place of last residence of the person against whom a hold departure order has been issued or whose departure from the country has been enjoined;
(b) The complete title and docket number of the case in which the hold departure order was issued;
(c) The specific nature of the case;
(d) The date of the hold departure order; and
(e) A recent photograph, if available, of the party against whom a hold departure order has been issued or whose departure from the country has been enjoined.

The court may recall the hold departure order motu proprio, or upon verified motion of any of the parties after summary hearing, subject to such terms and conditions as may be necessary for the best interests of the minor.

SEC. 17. Protection Order. - The court may issue a Protection Order requiring any person:

(a) To stay away from the home, school, business, or place of employment of the minor, other parent or any other party, or from any other specific place designated by the court;
(b) To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any person to whom custody of the minor is awarded;
(c) To refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the minor;
(d) To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit the minor at stated periods;
(e) To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; and
(f) To comply with such other orders as are necessary for the protection of the minor.

SEC. 18. Judgment. - After trial, the court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor.

If it appears that both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home for children.

In its judgment, the court may order either or both parents to give an amount necessary for the support, maintenance and education of the minor, irrespective of who may be its custodian. In determining the amount of support, the court may consider the following factors: (1) the financial resources of the custodial and non-custodial parent and those of the minor; (2) the physical and emotional health, special needs, and aptitude of the minor; (3) the standard of living the minor has been accustomed to; and (4) the non-monetary contributions that the parents would make toward the care and well-being of the minor.

The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody.

SEC. 19. Appeal. - No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment.

An aggrieved party may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of the denial of the motion for reconsideration or new trial and serving a copy thereof on the adverse parties.

SEC. 20. Petition for writ of habeas corpus. - A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs.

However, the petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty.

The petition may also be filed with the appropriate regular courts in places where there are no Family Courts.

The writ issued by the Family Court or the regular court shall be enforceable in the judicial region where they belong.

The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits.

Upon return of the writ, the court shall decide the issue on custody of minors. The appellate court, or the member thereof, issuing the writ shall be furnished a copy of the decision.

SEC. 21. Confidentiality of proceedings. - The hearings on custody of minors may, at the discretion of the court, be closed to the public and the records of the case shall not be released to non-parties without its approval.

SEC. 22. Effectivity. - This Rule shall take effect on May 15, 2003 following its publication in a newspaper of general circulation not later than April 30, 2003.

25 Year Foreclosure From Hell

2011-05-19T17:15:00.000-07:00

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Am quoting here a featured story from the Wall Street Journal entitled “The 25-Year Foreclosure From Hell” by Robbie Whelan Monday, December 6, 2010

This story may be incredulous to some people, but some of the antics used here to prevent foreclosure of mortgage actually happens in Philippine jurisdiction.

"Patsy Campbell could tell you a thing or two about fighting foreclosure. She's been fighting hers for 25 years. The 71-year-old retired insurance saleswoman has been living in her house, a two-story on a half acre in a tidy middle-class neighborhood here in central Florida, since 1978. The last time she made a mortgage payment was October 1985. And yet Ms. Campbell has been able to keep her house, protected by a 105-pound pit bull named Dodger and a locked, rusty gate advising visitors to beware of the dog.

"They're not going to take this house," says Ms. Campbell. "I intend to stay in this house and maintain it as my residence until I die."

Ms. Campbell's foreclosure case has outlasted two marriages, three recessions and four presidents. She has seen seven great-grandchildren born, plum real-estate markets come and go and the ownership of her mortgage change six times. Many Florida real-estate lawyers say it is the longest-lasting foreclosure case they have ever heard of.
The story of how Ms. Campbell has managed to avoid both paying her mortgage and losing her home, which is currently assessed at more than $203,000, is a cautionary tale for lenders that cut corners and followed sloppy practices when originating, processing and servicing mortgages. Lenders are especially vulnerable in the 23 states, including Florida, that require foreclosures to be approved by a judge.

Ms. Campbell has challenged her foreclosure on the grounds that her mortgage was improperly transferred between banks and federal agencies, that lawyers for the bank had waited too long to prosecute the case, that a Florida law shields her from all her creditors, and for dozens of other reasons. Once, she questioned whether there really was a debt at all, saying the lender improperly separated the note from the mortgage contract.

She has managed to stave off the banks partly because several courts have recognized that some of her legal arguments have some merit—however minor. Two foreclosure actions against her, for example, were thrown out because her lender sat on its hands too long after filing a case and lost its window to foreclose.

Ms. Campbell, who is handling her case these days without a lawyer, has learned how to work the ropes of the legal system so well that she has met every attempt by a lender to repossess her home with multiple appeals and counteractions, burying the plaintiffs facing her under piles of paperwork.

She offers no apologies for not paying her mortgage for 25 years, saying that when a foreclosure is in dispute, borrowers are entitled to stop making payments until the courts resolve the matter.

"This is every lender's nightmare," says Robert Summers, a Stuart, Fla., real-estate lawyer who represents Commercial Services of Perry, an Iowa-based buyer of distressed debt that currently owns Ms. Campbell's mortgage and has been trying to foreclose. "Someone defending a foreclosure action can raise defenses that are baseless, but are obstacles for the foreclosing lender," he says, calling the system "an unfair burden" for lenders.

While Ms. Campbell is an extreme case, more homeowners in trouble are starting to use similar tactics and are hiring defense lawyers to challenge their foreclosures, hoping to drag out the foreclosure process long enough to reach a settlement with the lender.

Court records outline the rocky road Ms. Campbell's loan has taken over the past 32 years. In 1978, Paul Campbell purchased the house on SW 19th Lane, a few minutes' drive from the small pharmacy he owned, using a $68,000 mortgage from First Federal Savings and Loan of Martin County. He married Patsy in 1980, and died later that year from emphysema, leaving the property to his wife.

In 1985, Ms. Campbell stopped making mortgage payments because of an illness that caused her to lose income and get behind on her bills, she says.

By then, the savings-and-loan crisis had begun to take hold. First Federal merged with First Fidelity Savings and Loan, which assumed ownership of the Campbell loan. In 1987, First Fidelity sold the mortgage to American Pioneer Savings Bank,
an Orlando-based lender that collapsed in the early 1990s.

The loan would change hands four more times, and four different lenders would try to foreclose on her. But every lender that held her loan either merged or collapsed. Each time ownership of the lender changed, the foreclosure case against Ms. Campbell would be dropped.

The loan eventually made its way to the Resolution Trust Corp., the federally owned asset manager that liquidated assets of insolvent S&Ls, and later, to the Federal Deposit Insurance Corp.

In June 1998, the FDIC sold the mortgage to Commercial Services of Perry, which filed to foreclose in 2000. After another illness, Ms. Campbell deeded the house to her daughter, Deborah Pyper. Years later, after Ms. Campbell recovered, the house was deeded back to her. Ms. Pyper declined to comment.

Ms. Campbell's early briefs in the case were strongly worded and colorful, drafted with the help of a now-retired Okeechobee County lawyer.

The briefs presented dozens of reasons why Ms. Campbell thought the bank didn't have the right to her house: Paul Campbell's signature was forged on the original mortgage, she said, and the original sellers never received money from the bank. At other times, she said the mortgage was never properly conveyed between banks and federal agencies, and she demanded paperwork that they were unable to immediately produce.

Attorneys' fees and court costs from previous cases hadn't been paid, or the amounts were wrong, she argued. One brief said that "Defendant Campbell specifically denies the existence of any 'debt.'"

In 2007, a trial-court judge tossed out all but two of Ms. Campbell's defenses, calling the case an "unnecessary paper chase which has been an unproductive and unnecessary use of judicial resources."

Commercial Services paid a court-determined amount to settle court costs from previous cases, and moved to take the foreclosure to trial, with a date set for early October 2010.

In response, Ms. Campbell filed for bankruptcy, effectively blocking the foreclosure until a stay is lifted by a bankruptcy-court judge.

Her filing lists $225,000 in real-property assets, and lists a secured creditor's claim of $63,801, which is equal to the unpaid principal on her mortgage. In previous court arguments, she had maintained that no lender held a secured claim against her because the note was improperly assigned.

A stern, confident woman who can quote Florida civil-procedure statutes by reference number, and who adores cooking Southern food and listening to classic Grand Ole Opry-era country music, Ms. Campbell steadfastly believes she is right. Her most recent argument in the case is that under Florida homestead law, the bank can't seize her house because it is exempt from liens and forced sales.

"Commercial Services of Perry is in the business of doing this. They win some, they lose some," she says. "If they had a case, they would have already won it, years ago."

She maintains that at this point, no one owns her mortgage note, and that because of fraud and paperwork mistakes by the banks that transferred it over and over again in the 1990s, the debt has been made void.

Mr. Summers, the lawyer for the lender, calls the case "the foreclosure from hell." He says Ms. Campbell has appealed the case seven times since he took it on in 2000, and all of her arguments are just stalling tactics.

"It's almost like clockwork. You know you're going to get another three-inch stack of documents every month or so, and you have to take the time to read through it," Mr. Summers says. "That is a burden on the courts, a burden on lawyers to decipher it, and it has enough meat in it that it's not all void."

For example, according to Mr. Summers and to court filings, in 2007, when a judge remanded the case to the trial court, a court clerk failed to issue a mandate establishing the lower court's jurisdiction. Ms. Campbell appealed the case on those grounds.

The bankruptcy should take about four months to adjudicate, Mr. Summers says, at which point he intends to take the foreclosure to trial. According to Commercial Services of Perry's latest filings, Ms. Campbell owes the $63,801 in principal plus $148,000 in interest.

"All she's got to do is pay what she owes: the principal, the interest, plus court costs and attorneys' fees," Mr. Summers says. "But she doesn't get a free ride."”

This is not to say that we follow the same antics and delaying tactics used by Mrs. Campbell to evade payment of a legitimate obligation. This is precisely why there is property recession in the US today. The bottomline is always to perform one’s duties and exercise one’s rights with honesty and integrity. This must be the second golden rule in human relations.

She may have been off the hook for 25 years in the payment of her mortgage, but I am sure, she also had 25 years of restless and hellish night knowing she has a moral obligation to pay her house. Everyone of us has to pay our way through life. No one ever gets a free meal ticket in life.

Watch out for my next blog on how to prevent foreclosure the legal and moral way.

Source: http://finance.yahoo.com/loans/article/111500

Top secrets on getting the best mortgage for your car loan

2011-05-10T05:47:00.000-07:00

Most people acquire their car through mortgage financing. Car is no longer considered a luxury these days but a necessity because the convenience it brings far outweighs the cost shouldered for the value of the car.

Photo credit flickr 31674926@N02/3079479453

There are two ways of loaning to acquire car title. This can be done either through a chattel mortgage contract or via a car/asset/finance lease agreement. The car or finance lease is usually granted as a benefit by corporate employers to their employees. Basically, a certain percentage of the value of the car is subsidized by the employer and the remaining portion is offered as loan to the employee subject to minimal interest rates.

Under this scheme of finance lease agreement, the employer, which acts as the financier, retains actual ownership of the vehicle but enables the employee to utilize the car or its commercial value and benefits of car ownership. The financier-employer purchases the vehicle on behalf of the employee, who then leases the vehicle back from the financier-employer and pays a fixed monthly lease rental for the term of the lease.

At the end of the lease, the employee can either pay a residual value on the lease and take ownership of the car, trade it in or re-finance the residual and continue the lease.

On the other hand, under a Chattel Mortgage or car loan title, the bank or financier advances funds to the customer to purchase a vehicle, and the customer takes ownership of the vehicle (chattel) at the time of purchase.

The financier then takes a "mortgage" over the vehicle as security for the loan subject to interest and via the “Chattel Mortgage Contract”. Once the loan is fully paid, the mortgage is cancelled giving the customer full and clear title to the vehicle. Following are the features of a car loan:

· Flexible contract terms ranging from 24 to 60 months (two to five years)

· Fixed mortgage interest rates and monthly mortgage amortization

· Mortgage Deposit (either cash or trade-in) may be made

· A tax deduction is available when the vehicle is used for business purposes

To avail of a car loan, the process usually involves negotiation with the dealer of the car of your choice. The car dealer then applies your loan with their in-house financing or your own bank via a Chattel Mortgage Contract. In the contract of car loan, not every amount you shell out is reflected in the Chattel Mortgage Contract because not all the amounts paid go to the bank. What are usually paid to the bank are the principal amount and interest and administrative or processing fees of the bank. Items such as registration fees and taxes are paid to government agencies such as the Land Transportation Office (LTO) and Bureau of Internal Revenue (BIR). There is also the mortgage insurance payable of course to the insurance company.

This is where every person desiring to have car loan title should watch out for the hidden cost. To have the best mortgage you should be aware of certain fees which you can possibly haggle and be informed of the legal basis of various amounts your mortgage bank or car dealer is charging you with. In order for you to get the best mortgage price for your car loan consider the following:

Firstly, the suggested retail price or selling price offered by your car dealer can be haggled with the agent of the car dealer. The suggested retail/selling price of the car, most often than not, includes the agent’s commission, hence you should be able to maximize the standard discount offered by the agent. Haggle with agent and you can be assured the best price or best mortgage for your vehicle. You can also ask for additional freebies from the car dealer such as car matting, leather car seats, free LTO and car registration, free car loan insurance, free gas, and other warranties and service check up.

Secondly, know the legal basis of the documentary stamp tax being charged. The documentary stamp tax is usually part of the hidden cost and this is where you might be overcharged.

Section 195 of the Tax Code states:

SEC. 195. Stamp Tax on Mortgages, Pledges and Deeds of Trust. - On every mortgage or pledge of lands, estate, or property, real or personal, heritable or movable, whatsoever, where the same shall be made as a security for the payment of any definite and certain sum of money lent at the time or previously due and owing of forborne to be paid, being payable and on any conveyance of land, estate, or property whatsoever, in trust or to be sold, or otherwise converted into money which shall be and intended only as security, either by express stipulation or otherwise, there shall be collected a documentary stamp tax at the following rates:

(a) When the amount secured does not exceed Five thousand pesos (P5,000), Twenty pesos (P20.00).

(b) On each Five thousand pesos (P5,000), or fractional part thereof in excess of Five thousand pesos (P5,000), an additional tax of Ten pesos (P10.00).

On any mortgage, pledge, or deed of trust, where the same shall be made as a security for the payment of a fluctuating account or future advances without fixed limit, the documentary stamp tax on such mortgage, pledge or deed of trust shall be computed on the amount actually loaned or given at the time of the execution of the mortgage, pledge or deed of trust, additional documentary stamp tax shall be paid which shall be computed on the basis of the amount advanced or loaned at the rates specified above: Provided, however, That if the full amount of the loan or credit, granted under the mortgage, pledge or deed of trust shall be computed on the amount actually loaned or given at the time of the execution of the mortgage, pledge or deed of trust. However, if subsequent advances are made on such mortgage, pledge or deed of trust, additional documentary stamp tax shall be paid which shall be computed on the basis of the amount advanced or loaned at the rates specified above: Provided, however, That if the full amount of the loan or credit, granted under the mortgage, pledge or deed of trust is specified in such mortgage, pledge or deed of trust, the documentary stamp tax prescribed in this Section shall be paid and computed on the full amount of the loan or credit granted.

Thus, if the amount of car loan is worth PHP 500,000.00, your documentary stamp tax should be PHP 1,010.00 for the first year. For the second year, the documentary stamp tax should be computed based on the diminished balance of the credit car loan. And so on and so forth until the end of the term of the credit car loan. Add the figures for each year of the credit car loan and the amount charged for documentary stamp tax should not be more than the total added amount. It is thus prudent for one desiring to have loan for car title to get his mortgage calculator and compute the actual documentary stamp tax due.

Thirdly, the car loan insurance may also be part of the hidden cost. Remember that for brand new vehicles, a comprehensive car insurance is a requirement for the car registration. You ought to know that comprehensive motor policies or comprehensive mortgage insurance vary from one insurance company to another, and in order to be assured of the best price you should find the best deal and not simply accept the in-house mortgage insurance being offered by your car dealer or agent. After all, that is your vehicle and nobody can compel you just to accept any mortgage insurance.

The best deal for a mortgage insurance is one that has the least premium price with the maximum coverage. By maximum coverage of a mortgage insurance means insuring every risk the car might be involved in including theft and carnapping and acts of God or the so called force majeure. Therefore find out the insurance company that offers the best mortgage insurance policy by inquiring about the premium and insurance coverage. Make sure you check out provisions of the insurance policy so as to include each and every risk agreed upon during the negotiation stage of the insurance policy contract. This is where you can haggle for the mortgage insurance price and ensure that it is not part of any hidden cost.

Lastly, the price being charged for your car registration with the Land Transportation Office can again be part of the hidden cost. Therefore make sure you know the legal basis for the amounts charged and check if the amount charged actually corresponds to the receipts issued by the concerned Land Transportation Office.

So get the best mortgage for your car by considering the foregoing items.

Sale or Donation. Which is more tax efficient?

2011-05-08T23:31:00.000-07:00

Am quoting here a post from another blog. It’s a good read for all property owners.

“In my professional life, I am always asked the question on which is the tax efficient way of transferring capital property or property not used in business. Is it through donation or sale? Well, the answer depends on two factors, namely: i) value of the property and ii) relationship of the donor to the donee.

If the donation is made to a “stranger”, then sale is more tax efficient than donation. This is because the tax rate for donation to a stranger is 30% while the tax rate for sale is 6%. Further, even if donation is not subject to documentary stamp tax and sale is subject to 1.5% documentary stamp tax, nonetheless, the total tax rate for donation is still higher at 30% compared to the total tax rate for sale of 7.5% ( capital gains tax of 6% and documentary stamp tax of 1.5).

For example, if a father donates a house and lot worth PHP 3 million to his son and the bride-to-be, then 50% of the donation that pertains to the son shall be subjected to the graduated tax rate on donation, while the remaining 50%, pertaining to the donation to the future daughter-in-law shall be subject of 30% tax rate, because the donation made by a father-in-law to his daughter in law is considered or treated by law as donation to a stranger.

The law defines a “stranger” as a person who is not a brother, sister (whether by whole or half blood), spouse, ancestor and lineal descendants; or relative by consanguinity in the collateral line within the fourth degree of relationship (up to first cousin).

If the transfer of property is made from one person to another person who is not a “stranger”, as defined by law, then donation is more tax efficient than sale, at least up to a certain value of the property.”

This is based on the following reasons:

Donation is not subject to documentary stamp tax while sale is. Documentary stamp tax for a sale transaction is equivalent to 1.5% of the selling price or fair market value of property whichever is higher.

b) Tax rate for a sale transaction is 6% while the tax rate for donation is based on graduated rates from 2% to 15% depending on the value of the property.

For example, if a property worth PHP 500,000 is donated, the amount of tax for this donation would be PHP 8,000.00, while the tax rate for sale would have been PHP 37,500, had the transaction been a sale. Donation is thus more tax efficient for this particular case.

Another example; if a property worth PHP 4,500,000.00 is donated, the amount of tax for this donation would be PHP 354,000.00, while the tax rate for sale would have been PHP 337,500.00,, had the transaction been a sale. Thus under this particular case, sale is more tax efficient.

Below is a tax table for donation type of transaction that will help you determine the corresponding tax dues if the transaction is a donation. Compare this with the existing tax rate of 7.5% (6% + 1.5%) for a sale transaction.

Effective January 1, 1998 to present

Net Gift Over	But not Over	The Tax Shall be	Plus	Of the Excess Over
	100,000.00	exempt
100,000.00	200,000.00	0	2%	100,000.00
200,000.00	500,000.00	P 2,000.00	4%	200,000.00
500,000.00	1,000,000.00	14,000.00	6%	500,000.00
1,000,000.00	3,000,000.00	44,000.00	8%	1,000,000.00
3,000,000.00	5,000,000.00	204,000.00	10%	3,000,000.00
5,000,000.00	10,000,000.00	404,000.00	12%	5,000,000.00
10,000,000.00	and over	1,004,000.00	15%	10,000,000.00

Notes:

1.	Rate applicable shall be based on the law prevailing at the time of donation.

What everyone ought to know about the Family Home

2011-05-01T08:10:00.000-07:00

Family home

A family home is usually the dwelling place in which a married couple, with their children, ordinarily resides. Basically, the family home would be registered in joint names of both spouses, being a conjugal property, except if the house was inherited through succession or bought before the marriage by either of the spouses.

Not everyone knows that the family home can have beneficial effect on taxation. As a tax saving tip, the family home can be exempted from certain taxes, or used as a deduction to minimize or save on taxes.

Your accountant or lawyer should be advising you of the following key tax information where the family home is subject of taxation:

1) Exemption from Capital Gains Tax. Generally sale of real property not used for business, such as family home is subject to capital gains tax. However, there the proceeds from such sale is to be utilized in in acquiring or constructing a new principal residence within eighteen (18) calendar months from the date of sale or disposition, such sale is exempt from the capital gains.

This exemption from capital gains tax is subject to the following conditions:

a) The historical cost or adjusted basis of the real property sold or disposed shall be carried over to the new principal residence built or acquired;

b) The Commissioner shall be duly notified by the taxpayer within thirty (30) days from the date of sale or disposition through a prescribed return of his intention to avail of the tax exemption;

c) The said tax exemption can only be availed of once every ten (10) years;

d) If there is no full utilization of the proceeds of sale or disposition, the portion of the gain presumed to have been realized from the sale or disposition shall be subject to capital gains tax. For this purpose, the gross selling price or fair market value at the time of sale, whichever is higher, shall be multiplied by a fraction which the unutilized amount bears to the gross selling price in order to determine the taxable portion and the tax due.

2) Deduction from Gross Estate or Exemption from Estate Tax. Where the family home is part of the gross estate of a deceased, the same may be written off or deducted up to the amount equivalent to the current fair market value of the decedent's family home not exceeding One million pesos (P1,000,000). As a requisite for the deduction, a barangay certificate of the locality where the family home is located must be submitted.

So before entering into any transaction affecting your family home, be reminded of these tax schemes to save on taxes.

11 Possible Deductions from your Estate Tax

2011-04-28T07:00:00.000-07:00

In computing estate tax, the amount can sometimes be so outrageous and irritatingly hefty it can nearly wipe off the total net amount the heirs will be receiving from the estate of a deceased.

Oh yes, I have definitely encountered widows who wished their husbands have done some estate planning. It is even worse when people have failed to settle their estate taxes for the longest time so that penalties and surcharges have gravely and enormously accrued. This is such a frustrating tax condition because considering the grief/state the heirs might still be in, the last thing they need is the government telling them: “We are sorry for the death of your loved one, but this is how much you owe us and you still have to pay us”.

Sadly, there is no way getting around it because we have to submit to the power of the government to tax us, even if we are already 6 feet below the ground. Don’t they say that tax, aside from death, is the only thing that is certain on earth? Talk about ironies.

That is why as property owner and/or prospective property owner it won’t hurt to know some key information about estate taxation. Apart from estate planning, (this was already discussed in previous blog) below are some deductions one should consider or prepare for to write off as deductions from the estate of a deceased or decedent.

A) If the decedent is a Citizen or a Resident, the following deductions are allowed:

1. Actual funeral expenses or in an amount equal to five percent (5%) of the gross estate, whichever is lower, but not to exceed Two hundred thousand pesos (P200,000);

2. Judicial expenses of the testamentary or intestate proceedings;

3. Claims against the estate subject to certain documentary requirements such as i) duly notarized debt instrument executed at the time of indebtedness; and ii) if the loan was contracted within three (3) years before the death of the decedent, a statement showing the disposition of the proceeds of the loan;

4. Claims of the deceased against insolvent persons provided such value is included in the gross estate;

5. Unpaid mortgages upon, or any indebtedness in respect to, property provided the value of decedent's interest therein, undiminished by such mortgage or indebtedness, is included in the value of the gross estate.

6. Property Previously Taxed. – this deduction is otherwise called vanishing deductions and involves a property previously taxed (for either donor’s or estate tax) because of the death and/or transfer of prior decedent to the present decedent. The amount to be deducted, equal to percentage value of the property, depends on time frame of the death of prior decedent from the death of present decedent. For example, if prior decedent died within one year to the death of the present decedent, the deduction is equal to 100% of the value of the property. Such value to be deducted vanishes by percentage as the time frame of death increases. Below is the table of percentage value to be deducted:

100% - 1 year from death

80% - More than 1 year from death but not more than 2 years

60% - More than 2 years from death but not more than 3 years

40% - More than 3 years from death but not more than 4 years

20% - More than 4 years from death but not more than 5 years

7. Transfers for Public Use. – All amounts given as bequests, legacies, devises or transfers to or for the use of the Government of the Republic of the Philippines, or any political subdivision thereof, for exclusively public purposes.

8. Family Home. - An amount equivalent to the current fair market value of the decedent's family home: Provided, however, That if the said current fair market value exceeds One million pesos (P1,000,000), the excess shall be subject to estate tax. This deduction shall be supported by a Certificate by the barangay captain of the locality.

9. Standard Deduction. - An amount equivalent to One million pesos (P1,000,000).

10. Medical Expenses. - Medical Expenses not exceeding Five Hundred Thousand Pesos (P500,000) incurred by the decedent within one (1) year prior to his death which shall be duly substantiated with receipts.

11. Amount Received by Heirs Under Republic Act No. 4917. - Any amount received by the heirs from the decedent - employee as a consequence of the death of the decedent-employee in accordance with Republic Act No. 4917: Provided, That such amount is included in the gross estate of the decedent.

Watch out for my next blog for allowable deductions in case the decedent is a non-resident of the Philippines.

Five (5) Rules You Should Know About Estate Tax.

2011-04-28T02:04:00.000-07:00

There are times people have not yet gone over their grief or pain for the loss of a loved one and already have to deal with the tedium of document processing in connection with the properties/estate left behind by the deceased.

Properties of a deceased person cannot be transferred to his heirs without paying the necessary estate tax. Payment of the estate tax is based on the principle that the estate of the deceased is one juridical personality and its right to transfer property to the heirs is a privilege and is thus subject to transfer tax.

A return or estate tax form (BIR Form No. 1801) needs to be filed with the Bureau of Internal Revenue for the payment of the estate tax. Hopefully, the following guidelines can aid the heirs in sorting out the tiresome process of estate taxation.

1. When to file Estate Tax Return

The return must be filed within six (6) months from the death of the decedent. In meritorious cases, the Commissioner has authority to grant a reasonable extension not exceeding thirty (30) days for filing the return.

2. Where to file Estate Tax Return

The return must be filed with the BIR district office or its representative having jurisdiction over the place of domicile of the decedent at the time of his death. If the decedent has no legal residence in the Philippines, the return shall be filed with the Office of the Commissioner (Revenue District Office No. 39, South Quezon City).

3. Who shall file the Estate Tax Return

This return must be filed in triplicate by the executor, or administrator, or any of the legal heirs of the decedent, whether resident or non-resident of the Philippines. If there is no executor or administrator appointed, qualified, and acting within the Philippines, then any person in actual or constructive possession of any property of the decedent.

Basically, a return is required to be filed in all cases of transfers where estate tax is due. However, where no estate tax is due, a return is still required where the gross value of the estate exceeds two hundred thousand (P200,000) pesos; or where regardless of the gross value of the estate, it consists of registered or registrable property such as real property, motor vehicle, shares of stock or other similar property for which a clearance from the BIR is required (i.e. bank deposits) as a condition precedent for the transfer of ownership thereof in the name of the transferee; or

4. When and Where to Pay Estate Tax

Upon filing the return, the estate tax due is to be paid to the BIR authorized Agent Bank (AAB) where the return is filed. In places where there are no AABs, payment shall be made directly to the Revenue Collection Officer or duly Authorized City or Municipal Treasurer.

In certain cases, where the government finds that the payment on the due date of the estate tax or of any part thereof would impose undue hardship upon the estate or any of the heirs, it may allow extension of time for the payment of such tax or any part thereof not to exceed five (5) years, in case the estate is settled through the courts, or two (2) years in case the estate is settled extrajudicially.

5. What docum
ents to submit:

The following requirements are to be submitted upon field or office audit of the tax case before the Tax Clearance Certificate/Certificate Authorizing Registration can be released. However, for expediency it would be best to already attach the applicable documents upon filing of the return.

i. Certified true copy of the DEATH CERTIFICATE;

ii. NOTICE OF DEATH duly received by the BIR, if gross taxable estate exceeds P20,000 for deaths occurring on or after Jan. 1, 1998; or if the gross taxable estate exceeds P3,000 for deaths occurring prior to Jan. 1, 1998;

iii. Any of the following: a) Affidavit of Self Adjudication; b) Deed of Extra-Judicial Settlement of the Estate, if the estate had been settled extrajudicially; c) Court order if settled judicially; d) Sworn Declaration of all properties of the Estate;

iv. A certified copy of the schedule of partition of the estate and the order of the court approving the same, if applicable;

v. Certified true copy/ies of the Transfer/Original/Condominium Certificate of Title/s of real property/ies (front and back pages), if applicable;

vi. Certified true copy of the latest Tax Declaration of real properties at the time of death, if applicable;

vii. "Certificate of No Improvement" issued by the Assessor's Office where declared properties have no declared improvement;

viii. Certificate of Deposit/Investment/Indebtedness owned by the decedent and the surviving spouse, if applicable;

ix. Photo copy of Certificate of Registration of vehicles and other proofs showing the correct value of the same, if applicable;

x. Proof of valuation of shares of stocks at the time of death, if applicable;

a. For listed stocks - newspapers clippings/certification from the stock exchange

b. For unlisted stocks - latest audited Financial Statements of issuing corporation with computation of book value per share

xi. Xerox copy of certificate of stocks, if applicable;

xii. Proof of valuation of other types of personal property, if applicable;

xiii. Proof of Claimed Tax Credit, if applicable;

xiv. CPA Statement on the itemized assets of the decedent, itemized deductions from gross estate and the amount due if the gross value of the estate exceeds two million pesos (P2,000,000);

xv. Certification of the Barangay Captain for the claimed Family Home;

xvi. Duly notarized Promissory Note for "Claims Against the Estate" arising from Contract of Loan;

xvii. Accounting of the proceeds of loan contracted within three (3) years prior to death of the decedent;

xviii. Proof of the claimed "Property Previously Taxed";

xix. Proof of the claimed "Transfer for Public Use".

xx. Copy of Tax Debit Memo used as payment, if applicable.

For the Estate Tax Form, please see my page on Tax Forms. And for tax saving tips and computations on the estate tax, watch out for succeeding blogs on taxes.

Who else wants to adopt?

2011-04-27T07:01:00.000-07:00

Adoption in the Philippines can be very elaborate because the process involves social works and other professional services that are required in the placement of children in adoptive families. It comprises a lot of counselling and study for both the adoptive parent and child.

Before making a life-changing decision in your life you should consider the following information in connection with adoption.

There are three types of domestic adoption in the Philippines, namely: i) Agency adoption; ii) Relative adoption and iii) Private adoption. Find out which is applicable to your circumstances.

Relative adoption is the easiest because this is where a biological parent merely makes a direct placement of his/her child to a relative of member of his/her extended family for adoption. On the other hand, Agency adoptions are those in which a licensed adoption agency finds and develops adoptive families for children who are voluntarily or involuntarily committed. The adoptive families go through the process from application to finalization of the child's adoption under the auspices of the Department of Social Welfare and Development or a licensed child-placing agency. Through this type of adoption, the legal rights of the child, the parents who gave birth to the child and the parents who will adopt the child, are all equally protected

While private or independent adoptions could either be a direct placement to a family known by the child's biological parents or through the use of an intermediary or a go-between. In an intermediary placement, an individual knows of parents who want to have their child adopted and arranges such placement to a family or someone who wants to adopt.

What are the components of domestic adoption?

This is the process involved in domestic adoption.

· - Recruitment of potential adoptive families who may provide a home to a child;

· - Development of adoptive applicants as parents to a particular child in need of a home;

· - Selection of a family who can best contribute to the total development of a particular child;

· - Preparation of the child and family prior to placement to insure acceptance and readiness for the new relationship;

· - Supervision of trial custody for at least six months to facilitate the child's adjustment in the family prior to the completion of adoption;

· - Preparation for removal of the child from the adoptive home if the placement disrupts while alternative plans are being worked out;

· - Finalization of adoption and termination of service with issuance of the final decree of adoption and amended birth certificate;

· - Organization of groups of adoptive parents as part of support system; and

· - Post-legal adoption counselling when adoptive family and adoptee need further counselling related to information about adoptee's background and search for his/her biological parents.

Who may be adopted?

The law on adoption says that the following may be adopted:

1. Any person below eighteen (18) years of age who has been voluntarily committed to the Department under Articles 154, 155 and 156 of P.D. No. 603 or judicially declared available for adoption;

2. The legitimate child of one spouse, by the other spouse;

3. An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy;

4. A person of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as their own child since minority;

5. A child whose adoption has been previously rescinded; or

6. A child whose biological or adoptive parents have died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parents.

7. A child not otherwise disqualified by law.

Who may adopt?

The following may adopt:

1. Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude; who is emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his children in keeping with the means of the family. The requirement of a 16-year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent;

2. Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Provided, further, That the requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4^th) degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate child of his Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.

3. The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.

4. Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or

(ii) if one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or

(iii) if the spouses are legally separated from each other.

5. In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses.

What are the documentary requirements in Adoption?

The following documents shall be attached to the petition:

A. Birth, baptismal or foundling certificate, as the case may be, and school records showing the name, age and residence of the adoptee;

B. Affidavit of consent of the following:

1.The adoptee, if ten (10) years of age or over;

2. The biological parents of the child, if known, or the legal guardian, or the child-placement agency, child-caring agency, or the proper government instrumentality which has legal custody of the child;

3. The legitimate and adopted children of the adopter and of the adoptee, if any, who are ten (10) years of age or over;

4. The illegitimate children of the adopter living with him who are ten (10) years of age or over; and

5. The spouse, if any, of the adopter or adoptee.

C. Child study report on the adoptee and his biological parents;

D. If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in his country and that his government allows the adoptee to enter his country as his own adopted child unless exempted under Section 4(2);

E. Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; and

F. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any.

So if you are considering adoption, the process can be a lot easier for you if you know what to documents to prepare and how to go about the adoption step by step.

89 Possible Tax Deductions for Business Owners

2011-04-27T02:04:00.000-07:00

Your accountant is good if he/she constantly teaches you to always think about various ways and means to save on taxes. And saving on taxes is either minimizing your taxable income or maximizing your deductions. To maximize your deductions, you should consider any and all personal expenses that may have a business purpose. In general, the Tax Code allows, as deduction from gross income, all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on or which are directly attributable to, the development, management, operation and/or conduct of the trade, business or exercise of a profession.

Thus, you may be able to convert some personal expenses to business expenses, as long as you have the proper business purpose for that expense. Note however that no business expense can be legitimately deducted without being substantiated with proper receipts and other adequate records and reconciled with the amount of the expense being deducted, and the direct connection or relation of the expense being deducted to the development, management, operation and/or conduct of the trade, business or profession of the taxpayer.

If you can document your expense, refer to this list of 89 possible deductions for business owners.

Association and membership dues

Advertising costs

Amortization

Auto expenses

Bad debts

Banking fees

Board meetings

Business travel

Capital Losses

Charitable contributions

Cleaning/janitorial services

Collection Expenses

Commissions to outside parties

Communication Expenses

Computers and technical supplies

Consulting fees

Continuing education

Conventions and trade shows

Costs of goods sold

Credit card annual fees

Dental Expense (with plan)

Depreciation

Discounts to customers

Education and training for employees

Entertainment for customers and clients

Equipment

Equipment repairs

Exhibits for publicity

Fire Insurance

Fire Loss

Franchise fees

Fringe Benefits paid to employees

Freight or shipping costs

Furniture or fixtures

Fire Insurance

Group insurance expense

Health insurance expense

Home office

Interest Expense

Internet hosting and services

Investment advice and fees

Laundry Allowance

Legal fees

License fees

Litigation expense

Losses due to theft, pilferage or embezzlement

Management fees

Materials

Maintenance

Meal allowance

Medical expenses (with plan)

Mortgage interest on business property

Moving/Freight expenses

Municipal/City Licenses

Newspapers and magazines

Office supplies and expenses

Pag-ibig contributions

Parking and toll fees

Pension trusts or plans

Per diems

Philhealth contributions

Professional Fees

Promotion and advertising fees

Pre-incorporation expense

Pre-development

Publicity

Real estate taxes

Real estate related expenses

Rebates on sales

Rent

Repairs

Representaton Expense

Research and development

Retirement plans

Rice Allowance

Royalties

Salaries and wages

Software and online services

SSS Contributions

Stamps and Postage fees

Storage rental

Subcontractors

Telephone

Transportation allowance

Training and/or teambuilding cost

Utilities

Value added taxes

Website design

Workers' compensation insurance

What everyone ought to know about Annulment and Divorce

2011-04-26T05:00:00.000-07:00

There is a big difference between divorce and annulment.

Following are excerpts from an article on the Philippine Daily Inquirer by former Chief Justice Artemio V. Panganiban posted on Philippine Daily Inquirer on 10 April 2011. It is a good read.

“This vast difference in attitude stems from the fact that the grounds for (1) annulling “voidable” marriages, and (2) declaring the nullity of a “void” marriage had existed before or at the time of the exchange of marital vows. Hence, no valid marriage existed from the very beginning. On the other hand, the cause for divorce arose after the exchange of “I do’s.” Thus, there was a valid marriage that the divorce decree dissolves.

For this reason, our courts are authorized to annul voidable marriages and/or to declare the nullity of void unions, whether among Filipinos or aliens. However, they have no power to issue divorce decrees, whether to Filipinos or to foreigners. Moreover, a divorce granted by a foreign court to Filipinos is not valid here.

Hence, a divorce obtained by a Filipino couple in Las Vegas, even though valid in Las Vegas, is not valid here. If one of the Filipino spouses should remarry again in this country, he or she would be guilty of bigamy. If the wife cohabits with another man in the Philippines without marrying that man, she could be prosecuted for adultery. If the husband cohabits openly with another woman without marrying her, he could be prosecuted for concubinage.

However, a divorce granted by a foreign court to foreigners, if valid according to the national law of the spouse concerned, shall be valid here. Furthermore, a divorce between a Filipino and a foreigner, obtained abroad by the alien spouse, shall also be valid here.

Here, “the Filipino spouse shall likewise have the capacity to remarry under Philippine law,” says Article 26 of our Family Code. The Supreme Court (Republic v. Orbecido, Oct. 5, 2005) explained that Article 26 aims “to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.” This law prevents a scenario where a Filipino is still considered legally married to an alien who is no longer deemed legally wedded to the Pinoy.

When foreign divorce benefits Filipinos. Article 26 is the exception to the general rule that bars Filipinos from enjoying the benefits of divorce decrees obtained abroad. Under this exception, the foreign husband could no longer insist on cohabiting with his Filipina wife. The divorce released the wife from her obligation to cohabit with him. Likewise, the Filipina wife could consider herself capacitated to remarry or to cohabit, without being guilty of bigamy or adultery.

In a recent decision (Corpuz v. Sto. Tomas, Aug. 10, 2010), the Supreme Court ruled that this right given to the Filipino spouse by Article 26 is not available to the foreign spouse. In this case, a Canadian (to be more accurate, a Filipino who was naturalized as a Canadian) who obtained a divorce in Canada from his Filipina wife has no right to ask a Philippine court to recognize the divorce decree so he could remarry another Filipina. Only the former Filipina wife may do so, that is, ask Philippine courts for this recognition.

A Philippine court cannot adjudge the marital status of the Canadian because the capacity to marry is determined by the national law of the person who wants to be married. Aliens who marry in the Philippines are required to present to the solemnizing officer a certificate of capacity to marry issued by their embassy or consulate.”

Hence Article 26 of the Family Code, which capacitates a Filipino citizen to remarry after having been divorced by an alien spouse, can only be invoked by Filipino citizens and not by non-Filipino citizens.

10 Deadly Mistakes you made this last tax filing season

2011-04-26T04:54:00.000-07:00

If you are a businessman or entrepreneur, you might have made the following crucial mistakes when you filed your income tax return last 15 April 2011:

1) You failed to check your math in arriving at the taxes due.

2) You failed to attach a CPA Certificate which is required if your gross quarterly sales, earnings, receipts or output exceed P 150,000.00.

3) You failed to consider allowable deduction for taxes paid or incurred in connection with your profession, trade or business. Examples of these taxes are real property taxes, value added taxes, municipal/city taxes and licenses as expense. These taxes are deductible expenses and taxes not allowed as deductions are income taxes, estate and donor’s taxes.

4) You failed to deduct interest as expense and if you did you failed to follow the limitations set forth by the Tax Code on deductibility of interest.

In general, the amount of interest paid or incurred on indebtedness in connection with the taxpayer's profession, trade or business are allowed as deduction from gross income. For example, the interest paid on mortgage for purchase of office building is deductible as expense. You may even have the option to treat the same as a capital expenditure whichever way is convenient tax wise.

Note though the limitations on deductibility of interest expense. Such allowable interest expense shall be reduced by an amount equal to 38% of the interest income subjected to final tax. Therefore, interests incurred are not deductible in full if you have earned interest income previously subjected to final tax.

Further, interests paid are not allowed as deductions if payment has been made or is to be made: i) between family members, ii) between a stockholder and corporation, where such stockholder owns 51% of the corporation; and iii) between fiduciary and trust.

Another limitation is the non-deductibility of interest paid in advance through discount or otherwise if one is at the same time reporting income on a cash basis. Such interest can only be deducted in the year the indebtedness is paid or if indebtedness is payable in periodic amortizations, the amount of interest which corresponds to the amount of the principal amortized or paid during the year shall be allowed as deduction in such taxable year. In other words, advance interest paid cannot be deducted until the principal is paid if one is reporting income on a cash basis.

5) You failed to write off bad debts or debts no longer collectible. So long as bad debts are connected with one’s profession, trade or business and not made between family members and those mentioned under Section 36 (B) of the Tax Code, the same can be deducted as expense.

6) You failed to consider your travel expense provided that such travel was in pursuit of trade, business or profession.

7) You failed to deduct entertainment, amusement and recreation expenses that are directly connected to the development, management and operation of your trade, business or profession, or that are directly related to or in furtherance of the conduct of your trade, business or exercise of profession.

8) You failed to deduct losses from robbery, theft, pilferage, embezzlement, fire, storm or other losses provided that such losses are not compensated for by any insurance.

9) You failed to deduct contributions made to charity which can either be deductible in full or with limitations. Contributions to the government, donations to Certain Foreign Institutions or International Organizations and to Accredited Nongovernment Organizations are deductible in full. Other contributions are only allowed as deductions in an amount not exceeding (10%) in the case of an individual, and five percent (5%) in the case of a corporation, of your taxable income derived from trade, business or profession as computed without the benefit of amount pertaining to charitable contributions,

10) You failed to consider other deductions allowed by law such as depreciation, loss from exchange of property, benefits given to employees such as pension trusts, research and development, capital losses, fringe benefits, etc.

However, don’t fret if you made the foregoing mistakes. You can always amend your income tax return. There is no prescription period for amending the return, except when one has been issued a Letter of Authority (LA). An LA is the authority given to revenue agents to investigate your books of accounts and other tax documents to determine the correctness of taxes paid for a given taxable year. Once an LA has been issued, you can no longer amend your return. So rectify your tax mistakes while you still can.

Most decisive thing to do, BEFORE YOU DIE.

2011-04-19T22:58:00.000-07:00

If you have properties, whether real or personal, it is critical for you to manage your estate before you die. We Filipinos never seem to realize the importance of estate planning. Traditional Filipinos do not usually talk about “mana” while parents are still alive, and consider this topic taboo, only to realize later on that the properties, should have been disposed of or transferred prior to any death.

The primary reason for estate planning is to ensure your family is properly cared for after your death. Often people only start thinking about transferring registration of property left by an estate to the heirs, when a prospective buyer shows interest on an estate property. But this is an extremely wrong practice. Sadly, the estate left by a deceased sometimes burdens rather than favors the heirs. Thus, it is always wise to do estate planning that will have your family and heirs thanking you even after you are long gone. Estate planning however does not always involved transfer of property before one's death, but planning the most efficient way to transfer property whether to take effect during one's lifetime or after death.

An example of an estate planning tool is, firstly, by establishing a trust fund for your children. If the designation of a child is irrevocable, this shall be considered as a gift and exempted from tax up to the amount of PHP 100,000.00. The designation of an irrevocable trust fund is however subject to donor’s tax.

If the designation is revocable, then the amount so designated shall be considered as part of the estate and subject to estate tax. For real properties, one can always transfer property to his children. It should however be studied which is more tax efficient in the transfer, whether it is through estate or gift tax.

Secondly, another estate planning tool is to secure life insurance policy because the proceeds thereof are exempted from estate tax for the estate and income tax for the recipient or heirs of the deceased.

Thirdly, an effective way of deferring payment of estate tax as an estate planning tool is by establishing a family corporation. If you have substantial number of properties, these properties can be converted to shares of stock by transferring the properties to a newly established corporation in exchange for the shares. As a tax free-exchange transaction, the law recognizes that no tax is imposable if property is transferred to a corporation by a person in exchange for stock or unit of participation in such a corporation of which as a result of such exchange said person, alone or together with others, not exceeding four persons, gains control of said corporation. This way the transferor or heirs still gain control over the properties via the corporation.

Lastly, one may consider selling properties to his heirs. The capital gains tax due on the sale transaction which is 6% may be a lot less than the estate tax due if these properties are part of the estate.

Lot of considerations have to be factored in in doing your estate planning such as the nature of the properties, intentions of the transferor and transferee etc. All these strategies have to be applied on a case to case basis and are crucial considerations in doing your estate planning.

So before you die, do your estate planning.......

Cost of Annulment

2011-04-19T05:23:00.000-07:00

The cost of annulment is a paramount consideration in deciding whether to file for annulment. The cost really depends on a lot of factors, such as the venue, the ground/grounds for annulment, properties owned by the spouses, and of course the professional fee for psychologist and/or psychiatrist. The psychology and/or psychiatry report, which is a pre-requisite, in an annulment case, makes up a substantial portion of the whole professional fee. Fees for doctors of psychology/psychiatry range between Php 25,000.00 to Php 50,000.00. This is why there is a move or clamour to regulate these fees through Supreme Court accreditation of these professional doctors.

The high cost of annulment is also the reason behind House Bill No. 3952 by Congressman Colmenares. House Bill No. 3952 which seeks to recognize spousal violence, infidelity, and abandonment as presumptive psychological incapacity, as a ground for the annulment of a marriage. Author claims that adding the presumption of psychological incapacity under Article 36 would reduce the length of the proceedings, and cut expenses like professional fees for psychiatrists or psychologists. Some legal experts however believe that this bill will not solve the problem of cost of litigation since it does not change the legal standards set by the Supreme Court in annulment cases. Under this bill, although psychological incapacity is presumed in case of violence, infidelity, and abandonment, one still has to prove seriousness, incurability and that such psychological incapacity existed at the time of marriage. The bill may do away with proving psychological incapacity but all the other factors still has to be proven resulting in protracted court proceedings.

Well, let us wait and see where this bill may lead our Congressmen to. After all some of them have benefited from “psychological incapacity” fever or still intend to avail of it.

Free Legal Fees

2011-04-18T06:23:00.000-07:00

Seeking justice in the Philippines or requesting the court to approve your annulment, legal separation or other special actions you want the court to do can be costly. Not only will you be paying for filing fees and other court fees, but professional fees of lawyers can be very expensive.

However, you might want to resort to the following:

1. You can ask the court to allow you to litigate as a pauper litigant, which means that you are exempt from paying filing and other court fees. The court however will require you to submit certificate of Indigence issued by your Barangay and the DSWD.

2. For free legal fees and you qualify as an indigent, you might want to visit the Public Attorney’s Office (or PAO) to handle your case in court. This office requires submission of your Income Tax Return (ITR) to show your minimal annual income. The Integrated Bar of the Philippines (IBP), is also another office which offers pro-bono cases or free legal fees for poor litigants as part of program. So visit the nearest regional office near your place to avail of free legal services if you cannot afford one. Lastly, the Office of the Legal Aid (OLA) of UP College of Law also offers free legal services.

Of course if you have properties, this will contradict your claim for indigence.

For additional information, you can visit the following websites:

www.ibp.ph

www.pao.gov.ph

www.law.upd.edu.ph

Dual Citizenship for Natural-Born Filipino Citizens (Part 2)

2011-04-07T19:05:00.000-07:00

Following are the rights and privileges, as well as the obligations of a dual citizen under RA 9225

Those who retain or reacquire their Philippine Citizenship under RA 9225 shall enjoy full civil and political rights
and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

1) Right of Suffrage. Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as The Overseas Absentee Voting Act 0f 2003 and other existing laws.

2) Right to be elected. Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.

The right to vote or be elected or appointed to any public office in the Philippines cannot be

exercised by, or extended to, those who are candidates for or are occupying any public office in the country of

which they are naturalized citizens and/or those who are in active service as commissioned

or non-commissioned officers in the armed forces of the country which they are naturalized citizens.

3) Right to be appointed. Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office; provided, that they renounce their oath of allegiance to the country where they took that oath.

4) Right to acquire land. As provided for under the 1987 Philippine Constitution, a Filipino citizen is entitled to purchase land and other properties. There is no limit in terms of area or size of land or real property he/she could acquire/purchase under his/her name. This right would now apply to former natural-born Filipinos who have reacquired Philippine citizenship under RA 9225.

5) Right to engage in business. As provided for under the 1987 Philippine Constitution, a Filipino

citizen is entitled to engage in business.

6) Residency right. Former natural born Filipinos who have re-acquired Philippine citizenship may now reside in the Philippines continuously without having to apply for entry visa. If the foreign spouse and/or child wish to also reside permanently in the Philippines, they may opt to apply for naturalization as a Filipino citizen or apply for a permanent resident visa. If he/she does not wish to reside permanent in the Philippines, he/she could visit the country as a Balikbayan (refers to a Filipino citizen who is out of the country continuously for at least one year). The foreign spouse or child may enter the country and stay for up to a year visa free provided the spouse or child is accompanying or traveling with the Balikbayan when the Balikbayan goes home to the Philippines.

Having reacquired citizenship, one can stay in the Philippines for as long as he/she wants without having to pay immigration fees. One can even choose to retire or permanently settle back in the Philippines.

8) Duty to pay taxes. One who reacquires Filipino citizenship is subject to duties and other obligations imposed on other ordinary Filipinos, such as paying the necessary community tax residence and other tax liabilities in accordance with the tax laws of the Philippines.

In accordance with existing laws, income earned in the Philippines is subject to the payment of tax. Filipinos who re-acquire citizenship and opt to reside and work in the Philippines will pay the income tax due at the end of each fiscal year.

Countries routinely forge bilateral agreements in order that their respective citizens who earn income overseas do not pay income tax twice. Filipinos who have re-acquired citizenship, as long as they reside permanently overseas, also enjoy the travel tax exemption extended to Filipino citizens permanently residing in other countries, the OFWs and their dependents.

9) Practice of profession. Under the law, those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice.

Contact details:

Office of the Commissioner

Bureau of Immigration

Magallanes Drive, Intramuros

Manila, Philippines.

Tel. No. (63) 2 527-3265

Fax No. (63-2) 527-3279

Sources,

www.immigration.gov.ph

www.gov.ph

Dual Citizenship for Natural-Born Filipino Citizens (Part 1)

2011-04-05T19:22:00.000-07:00

Under the Dual Citizenship law or RA 9225 dated August 29, 2003, former natural-born Filipino citizens who have acquired foreign citizenship through naturalization are deemed not to have lost their Philippine citizenship under certain conditions.

1) A natural-born citizen is a person born of one or both parents who are Filipino citizens at the time of birth.

2) Dual Citizens. RA 9225 does not apply to dual citizens or those who have both Philippine citizenship as well as foreign citizenship not acquired through naturalization.

Examples:

a. A child born of parents who are both Filipino citizens (at the time of birth) in a country that adheres to the jus soli principle (e.g., the United States) is a dual citizen. The child, who is a natural-born Filipino because the Philippines adheres to the jus sanginis principle, is also entitled to apply for a US passport. Jus soli (right of soil) is the legal principle that a person's nationality at birth is determined by the place of birth (i.e., the territory of a given state). Jus sanguinis (right of blood) is the legal principle that, at birth, an individual acquires the nationality of his/her natural parent/s.

d. A child born of one parent who is a Filipino citizen (at the time of birth) and of one foreign parent (e.g., Australian) whose country adheres to the jus sanguinis principle is a dual citizen and is entitled to apply for both Philippine and Australian passports.

e. A child born of one parent who is a Filipino citizen (at the time of birth) and of one foreign parent (e.g, Australian) whose country adheres to the jus sanguinis principle in a country that adheres to the jus soli principle (e.g., US) would be entitled to apply for Philippine, Australian and US passports.

3) Procedure (Outside of the Philippines). A former natural-born citizen who is abroad but is a Bureau of Immigration (BI)-registered alien desiring to apply for dual citizenship shall file a petition under oath to the nearest Philippine Embassy or Consulate for evaluation. Thereafter, the Embassy or Consulate shall forward the entire records to the Commissioner of Immigration for the cancellation of the ACR and issuance of an IC.

A former natural-born citizen who is abroad and is not a BI-registered alien desiring to apply for dual citizenship shall file a petition under oath to the nearest Philippine Embassy or Consulate for the issuance of an Identification Certificate (IC).

Following are the procedures and the documents required in applying for Dual Citizenship:

a. Person applying for dual citizenship shall present a copy of his/her Birth Certificate issued or duly-authenticated by the National Statistics Office (NSO) in Manila.(Note: Applicants can request for an authenticated birth certificate from the National Statistics Office on-line through the following website: www.ecensus.com.ph)

In case of no records found, applicant must present a Certificate of Non-Availability of Birth Record from the NSO and other secondary documentary proof of being a former natural-born Filipino citizen (e.g. old Philippine passport, baptismal certificate, marriage certificate of applicant and parents)

b. Person applying for dual citizenship shall accomplish the form entitled Petition for Dual Citizenship and Issuance of Identification Certificate (IC) and attaches three (3) 2x2 photographs showing the front, left side and right side views of the applicant.

c. Applicant shall submit a duly-accomplished petition to the Philippine Consulate / Embassy together with the photos, birth certificate and a valid ID. (Note: Applicants who are married and who wish to use their married names must submit a copy of their marriage certificate).

d. Applicant shall pay a processing fee of US$ 50.00 and is assigned a schedule for his/her oath of allegiance before a consular officer. Applicant takes his/her oath.

e. Applicant will be given the original copy of his notarized oath of allegiance together with an Order of Approval issued by the Philippine Consulate General.

f. The Philippine Consulate General will forward to the Bureau of Immigration in Manila the petition, oath, order of approval, and other supporting documents for issuance of an Identification Certificate.

g. The Bureau of Immigration shall issue an Identification Certificate (IC) and will forward it to the applicant through the Philippine Consulate General.

4) Procedure (Inside the Philippines). A former natural-born Filipino citizen who is already in the Philippines and registered in the Bureau of Immigration shall file a petition under oath to the Commissioner of Immigration for the cancellation of the Alien Certificate of Registration (ACR) and issuance of an Identification Certificate (IC) as the case may be. A former natural-born citizen who is already in the Philippines but has not registered with the BI within 60 days from date of arrival shall file a petition under oath to the Commissioner of Immigration for the issuance of an IC.

5) Proof of being a natural-born citizen. A former natural-born citizen, who was born in the Philippines, needs to submit the NSO-authenticated copy of his or her birth certificate. A former natural-born citizen, who was born abroad, shall present a copy of the Report of Birth issued by the Philippine Embassy or Consulate and, in applicable cases, the original copy of the Birth Certificate by competent foreign authorities.

6) Oath of Allegiance. The Oath of Allegiance is the final act that confers Philippine citizenship.

It reads as follows:

"I,________________, solemnly swear that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and local orders promulgated by the duly constituted authorities of the Philippines, and I hereby declare that I recognise and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto, and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion."

7) Foreign Spouse. RA 9225 does not apply to the foreign spouse . He/she has the following option of applying for naturalization of permanent resident visa if he/she wishes to reside permanently in the Philippines.

8) Derivative Citizenship. Unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship shall be deemed citizens of the Philippines. A married child, although a minor, cannot therefore be included in the petition of his/her parent. Children 18 years old and over do not qualify to acquire Philippine citizenship under RA 9225. They have the same options that are open to the foreign spouse.

Petitioner, with minor and unmarried children, has the option to list the names and details of such children in his/her petition under oath. The applicant should include a copy of the Report of Birth and the original copy of Record of Birth for each minor child.

The process for the application of dual citizenship is made simple and easy for former natural born Filipino citizen desiring to bond again or rejoin ties with their motherland and its cultural heritage.

Please go to Part 2 of this blog which contains the rights and privileges and obligations of a dual citizen.

Sources

http://www.immigration.gov.ph

http://www.gov.ph

How to file for Legal Separation

2011-04-05T07:00:00.000-07:00

This is a free legal advice on how to file for legal separation and the procedures in the petition for legal seperation.

A petition for legal separation is different from a petition for declaration of nullity of marriage (annulment). The most important distinction is the right of the spouse/s to remarry under the petition for annulment which cannot be had under a petition for legal separation.

1) A petition for legal separation may be filed only by the husband or the wife, as the case may be within five years from the time of the occurrence of any of the following causes:

(a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;

(b) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

(c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;

(d) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;

(e) Drug addiction or habitual alcoholism of the respondent;

(f) Lesbianism or homosexuality of the respondent;

(g) Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the Philippines;

(h) Sexual infidelity or perversion of the respondent;

(i) Attempt on the life of petitioner by the respondent; or virtual law library

(j) Abandonment of petitioner by respondent without justifiable cause for more than one year.

2) The petition for legal separation shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing "or in The case of a non-resident respondent, where he may be found in the Philippines, at the election of the petitioner.

3) The petition for legal separation must contain the complete facts constituting the ground for legal separation and must state the names and ages of the common children of the parties, specify the regime governing their property relations, the properties involved, and creditors, if any. If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other similar matters requiring urgent action,

The petition for legal separation must also be verified and accompanied by a certification against forum shopping. The verification and certification must be personally signed by the petitioner. The petition for legal separation cannot be filed solely by counsel or through an attorney-in-fact. If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country

The petitioner shall, within five days from such filing, furnish a copy of the petition for legal separation to the City or Provincial Prosecutor and the creditors, if any, and submit to the court proof of such service within the same period.

4) After furnishing copy of the petition for legal separation to the office of the Solicitor General and City or Provincial Prosecutor, the court will order the service of summons to the respondent.

Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, with prior approval of the court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such place as the court may order. In addition, a copy of the summons shall be served on respondent at his last known address by registered mail or by any other means the court may deem sufficient.

The summons to be published shall be contained in an order of the court with the following data; (1) title of the case; (2) docket number; (3) nature of the petition; (4) principal grounds of the petition and the reliefs prayed for, and (5) a directive for respondent to answer within thirty days from the last issue of publication.

5) After service of summons, the court will order the respondent to file his Answer to the petition for legal separation within fifteen days from receipt of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by respondent himself and not by counsel or attorney-in-fact. Where no answer to the petition for legal separation is filed/or if the answer does not tender an issue the court shall order the public prosecutor to investigate whether collusion exists between the parties.

6) Within one month after receipt of the court order above, the public prosecutor shall submit a report to the court on whether the parties are in collusion and serve copies on the parties and their respective counsels, if any. If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of copy of the report. The court shall set the report for hearing and if convinced that parties are in collusion, it shall dismiss the petition for legal separation.

If the public prosecutor reports that no collusion exists, the court shall set the case or petition for legal separation for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.

7) The court may require a social worker to conduct a case study on the petition for legal separation and to submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary,

8) Thereafter, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties on a date not earlier than six months from date of the filing of the petition for legal separation.

If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. If the respondent filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days a report to the court stating whether his non-appearance is due to any collusion between the parties/ If there is no collusion the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence.

At the pre-trial conference, the court may refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law. The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month.

In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the petition.

9) After pre-trial, the court the presiding judge shall personally conduct the trial of the case or petition for legal separation. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses. During the trial the grounds for legal separation must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed.

The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the party's right to privacy; or would be offensive to decency

No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court.

10) After the trial, the case or petition for legal separation shall be deemed submitted for the decision of the court. But before that, the court may require the parties and the public prosecutor to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda.

The court shall deny the petition for legal separation on any of the following grounds:

(1) The aggrieved party has condoned the offense or act complained of or has consented to the commission of the offense or act complained of;

(2) There is connivance in the commission of the offense - or act constituting the ground for legal separation;

(3) Both parties have given ground for legal separation;

(4) There is collusion between the parties to obtain the decree of legal separation; or

(5) The action is barred by prescription.

If the court renders a decision granting the petition for legal separation, it shall declare therein that the Decree of Legal Separation shall be issued by the court only after full compliance with liquidation under the Family Code.

However, in the absence of any property of the parties, the court shall forthwith issue a Decree of Legal Separation which shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court granting the legal separation is located.

The decision shall likewise declare that:

(1) The spouses are entitled to live separately from each other but the marriage bond is not severed;

(2) The obligation of mutual support between the spouses ceases; and

(3) The offending spouse is disqualified from inheriting from the innocent spouse by intestate succession, and provisions in favor of the offending spouse made in the will of the innocent spouse are revoked by operation of law.

The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall also be published once in a newspaper of general circulation.

11) The court shall issue the Decree of Legal Separation after:

(1) registration of the entry of judgment granting the petition for legal separation in the Civil Registry where the marriage was celebrated and in the Civil Registry where the Family Court is located; and

(2) registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located.

The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.

12) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, in the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree. In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation.

The registered Decree shall be the best evidence to prove the legal separation of the parties and shall serve as notice to third persons concerning the properties of petitioner and respondent.

Supreme Court Administrative Matter No. 02-11-11
MARCH 15, 2003
www.sc.gov.ph