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ADMINISTRATIVE ORDER NO. 101
ADMINISTRATIVE ORDER NO. 101 -
DISMISSING FROM THE SERVICE, WITH FORFEITURE OF HIS LEAVE CREDITS AND
RETIREMENT BENEFITS, AQUILINO T. LARIN, ASSISTANT COMMISSIONER OF THE
BUREAU OF INTERNAL REVENUE, AND HIS DISQUALIFICATION FOR REAPPOINTMENT
IN THE GOVERNMENT SERVICE, FOR GRAVE MISCONDUCT
This pertains to the administrative charge
against Assistant Commissioner Aquilino T. LARIN of the Bureau of
Internal Revenue, for grave misconduct by virtue of a Memorandum signed
by Acting Secretary Leung of the Department of Finance, on the basis of
a Decision handed down by the Hon. Sandiganbayan convicting LARIN, et
al. in Criminal Case Nos. 14208 and 14209.
Acting on the aforecited Memorandum, the Senior Deputy Executive
Secretary, by authority of the President, issued Memorandum Order No.
164 creating a Committee to investigate the administrative complaint
against him, Assistant Commissioner of the Bureau of Internal Revenue,
with powers to summon witnesses, take testimony or evidence relevant to
the investigation, conduct the investigation in the most expeditious
manner, terminate the same as soon as practicable and thereafter submit
its report and recommendation to the President not later than Ninety
(90) days from issuance of the Order (25 August 1993).
On 17 September 1993, the Chairman of the Investigation Committee
directed LARIN to file his position paper on the aforementioned charge
and failing which he shall be considered to have waived his right to be
heard.
In his Position Paper submitted on 30 September 1993, LARIN refused "to
comment on the merits of the issues involved" allegedly in deference to
the "sub-judice" doctrine. He instead argued that any administrative
complaint against him is already allegedly barred based on the
following:
(a) While the Administrative Code provides for the
procedures in administrative cases against non-presidential appointees,
no such provisions for presidential appointees in the Career Executive
Service exist;
(b) Under Republic Act 6770 (Ombudsman Law) only the
Ombudsman has jurisdiction to investigate cases cognizable by the
Sandiganbayan. In the instant case, the Ombudsman has already taken
cognizance of and assumed jurisdiction over the "administrative and
criminal charges" against him.
(c) Res judicata and double, if not multiple,
jeopardy;
(d) Redundant, oppressive, plain persecution of is
person and violative of his human rights.
This Office agrees with the findings of the Committee, with respect to
the procedural matters, as follows:
"(1) Larin's claim that the instant Administrative Complaint is already
barred because of the absence of procedures for Administrative Cases
against presidential appointees, deserves scant consideration.
1.1 While it is true that Book V of the
Administrative Code of 1987, Title I, Sub-title A, Chapter 7, Sec. 48
only provides for the procedures in Administrative Cases against
non-presidential appointees, the lack of parallel provisions for
presidential appointees does not preclude the President, as
Administrative head of government and under his Constitutional powers
of appointment of heads of executive departments, bureaus and offices,
independently of statutory authority, in exercising disciplinary powers
ever executive officers or officials, especially those whose term of
office is not fixed by law (Sinco, Phil. Political Law, p. 243).
1.2 Moreover, the President's power to remove is
considered as an adjunct of or incident to the power of appointment
(Machem, Public Office and Offices, Sec. 445).
(2) Contrary to Larin's assertion that only Ombudsman
should take cognizance of his case, such authority is not exclusive but
in concurrent with other appropriate government agencies, as in the
case of the Office of the President regarding the administrative aspect
thereof.
(3) Larin's reliance on res judicata and double
jeopardy is misplaced and unavailing.
3.1 For res judicata to apply, the following elements
must concur: (a) final judgment or Order; (b) court that rendered
judgment must have jurisdiction over the subject matter and the
parties; (c) judgment must be based on the merits (d) identity of
parties, subject matter and cause of action between the two (2) cases.
2.2 Thus, it has been held that generally, judgment
in a criminal case cannot be invoked as res judicata in a civil action
or administrative proceedings because under this situation, the
identity of parties and subject matter does not obtain since the
petitioners/complainants in the civil case or administrative complaint
are not parties in the criminal case and the subject matter in the
criminal case — the guilt or innocence of the accused is different from
that of the civil action or administrative proceedings (vide, Perez vs.
Mendoza, 75 SCRA 485, Ocampo v. Jerkin, 14 Phil. 661 and Dionisio v.
Alvendia, 102 Phil. 443)
2.3 As regards double jeopardy, the scope of the
guarantee of double or second jeopardy for the same offense includes
only immunity from second prosecution when the court having
jurisdiction had acquitted/convicted the accused of the same offense
(Kepner vs. US, 11 Phil. 669), but not immunity for/from a civil action
or an administrative complaint against said accused."
This Office further agrees with the findings of the Committee with
respect to substantive matters, as follows:
"(1)
LARIN denies any administrative (or even criminal) culpability. He
claims that the aforecited cases are mere persecutions filed and being
orchestrated by taxpayers who were prejudiced by the multi-million
pesos assessments he caused to be issued against them in his official
capacity as Assistant Commissioner, Excise Tax Office of the BIR.
(2) Whether
there is truth to his bare assertion that he is just a subject of
persecution, the fact is that LARIN is guilty of grave misconduct. By
his "categorical recommendation" to the Commissioner for the grant of
the tax credit requested by Tanduay when there was no clear right to
the full amount thereof and for which the government suffered pecuniary
damage — albeit temporary as later events have shown, in the amount of
more or less P74 M, LARIN is indubitably guilty of the charges.
(3) In the
case of In re Horilleno, 43 Phil. 212, the Supreme Court interpreted
serious or grave misconduct as "gross negligence of a public officer."
And gross negligence has been defined as the want of even slight
care and diligence (Mobile & M.R. Co. v. Ascharge (1872) 48 Ala.
(4) Indeed,
LARIN was remiss in determining both the factual basis for the claim,
i.e., whether or not Tanduay had actually paid all of the P180 M in ad
valorem taxes, as well as the legal basis, i.e., whether or not ad
valorem taxes were erroneously paid, therefore, tax creditable.
(5) LARIN
should have exercised the most simple and basic degree of diligence —
WHICH HE DID NOT, to be certain that Tanduay has actually paid the sum
of P180,701,682.00 in ad valorem taxes claimed by it, for several
reasons: (i) the amount subject of the claim was extraordinarily large:
P180,701,682.00 and (ii) he was the last layer of recommending officer
before the implementing officials — the Commissioner of the BIR or his
Deputy — could act".
Based on the foregoing, this Office finds Respondent Aquilino T. Larin
GUILTY of grave misconduct.
WHEREFORE, premises considered, Aquilino T. Larin is hereby dismissed
from government service with forfeiture of his leave credits and
retirement benefits, and his disqualification for reappointment in the
government service.
DONE in the City of Manila,
this 2nd day of December in the year of Our Lord, Nineteen Hundred and
Ninety-Three.
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