Tupaz vs. Ulep

A criminal information dismissed at the instance of the prosecution without the express consent of the accused, after she has been arraigned and pleaded, is a final dismissal with prejudice; reinstating the same information places the accused in double jeopardy. Additionally, the prescriptive period for assessment of deficiency corporate income tax for taxable year 1979 remains five years under the 1977 NIRC, and the period for filing the criminal action runs not from the filing of the return but from the date the assessment becomes final and unappealable.

Petronila C. Tupaz and her husband Jose J. Tupaz, Jr., as corporate officers of El Oro Engravers Corporation, failed to pay a deficiency corporate income tax of P2,369,085.46 for taxable year 1979. The Bureau of Internal Revenue conducted an audit and issued a notice of assessment on July 16, 1984. The taxpayer did not protest the assessment. Years later, criminal charges were initiated. After multiple procedural steps, the trial court dismissed the case on motion of the prosecution, only to later reinstate the information over the accused’s objection. Tupaz challenged the reinstatement through certiorari, invoking prescription of the offense and double jeopardy.

• Nature: The case involved a special civil action for certiorari to nullify the order of the Regional Trial Court reinstating Criminal Case No. Q-91-17321, which charged petitioner Petronila C. Tupaz and her late husband Jose J. Tupaz, Jr. with violation of Section 51(b) in relation to Section 73 of the 1977 Tax Code (nonpayment of deficiency corporate income tax).
• The Tax Assessment: El Oro Engravers Corporation, for which the spouses Tupaz were responsible corporate officers, filed its corporate annual income tax return for 1979 in April 1980. After an audit, the Bureau of Internal Revenue issued a notice of assessment on July 16, 1984, finding a deficiency of P2,369,085.46. The corporation did not protest the assessment within 30 days; it became final and unappealable on August 16, 1984.
• Initial Criminal Proceedings: A complaint for preliminary investigation was filed with the Department of Justice on June 8, 1989. The first information filed in the MeTC was dismissed for lack of jurisdiction. Two identical informations were subsequently filed with the RTC; Q-91-17321 was raffled to Branch 105. Petitioner pleaded not guilty upon arraignment on September 20, 1994. The information was later amended to state the date of commission as “on or about August 1984 or subsequently thereafter,” an amendment treated as one of form.
• Dismissal and Reinstatement: On May 20, 1996, upon motion of State Prosecutor Agcaoili—who mistakenly believed the case involved deficiency contractor’s tax—the trial court dismissed Criminal Case No. Q-91-17321. Petitioner’s express consent to the dismissal was neither sought nor obtained. Eight days later, the prosecution moved to reinstate the information, citing palpable mistake. Over petitioner’s objection, the trial court granted reinstatement on August 6, 1996, and denied reconsideration.

• Prescription of Assessment: Petitioner maintained that the July 16, 1984 assessment was issued beyond the three-year prescriptive period under Batas Pambansa Blg. 700, which took effect on April 5, 1984, and that this shorter period should apply retroactively as a penal provision favorable to the accused under Article 22 of the Revised Penal Code.
• Prescription of Offense: Petitioner argued that the offense prescribed because the five-year period under Section 340 of the 1977 NIRC began to run from the filing of the return in 1980, making the June 8, 1989 complaint for preliminary investigation untimely.
• Double Jeopardy: Petitioner contended that after her arraignment and plea of not guilty, the dismissal of the information without her express consent amounted to a final acquittal; reinstating the same information placed her twice in jeopardy for the identical offense, in violation of her constitutional right.

• Period of Assessment: The Solicitor General countered that B.P. Blg. 700 applies prospectively to assessments beginning taxable year 1984; the 1979 deficiency tax remained governed by the five-year prescription under the old Tax Code. Hence, the assessment issued on July 16, 1984 was timely.
• Prescription of Criminal Action: The five-year period to file the criminal action commenced not upon filing of the return but only upon finality of the assessment on August 16, 1984; thus, the June 8, 1989 complaint was filed well within the prescriptive period.
• Double Jeopardy: The dismissal did not bar reinstatement because petitioner induced it by seeking reinvestigation, thereby waiving or estopping herself from invoking double jeopardy. Additionally, the dismissal was tainted by a mistake of fact and therefore invalid; it could not produce a jeopardy bar.

• Prescription of Assessment: Whether the assessment of deficiency corporate income tax for 1979 issued on July 16, 1984 was barred by the three-year prescriptive period under Batas Pambansa Blg. 700.
• Prescription of Offense: Whether the criminal action for nonpayment of deficiency tax filed on June 8, 1989 prescribed under the five-year limitation in Section 340 of the 1977 NIRC.
• Double Jeopardy: Whether the trial court gravely abused its discretion in reinstating the information after the case had been dismissed at the prosecution’s instance without the express consent of the accused, thereby exposing her to double jeopardy.

• Prescription of Assessment: The five-year prescriptive period applied. B.P. Blg. 700 expressly limited its shortened three-year period to assessments and collections beginning taxable year 1984. The deficiency tax pertained to taxable year 1979, so the prior five-year rule governed. The return was filed in April 1980; the assessment, issued in July 1984, fell within the five-year window. Article 22 of the Revised Penal Code did not apply because provisions on the period of assessment are not penal in nature.
• Prescription of Offense: The criminal action was timely. Under the doctrine in Lim, Sr. v. Court of Appeals, the offense of willful refusal to pay a deficiency tax is committed only after the assessment becomes final and the taxpayer fails to pay within the allotted period. The assessment here became final on August 16, 1984. The complaint filed on June 8, 1989 was within the subsequent five-year period. Counting from the 1980 return date was erroneous because prior to finality of the assessment, no violation exists.
• Double Jeopardy: The reinstatement of the information constituted grave abuse of discretion and violated the constitutional guarantee against double jeopardy. Petitioner had been arraigned and pleaded not guilty to a valid information before a competent court. The dismissal was granted upon the prosecution’s motion and without her express consent. Consent cannot be implied or presumed; it must be express to leave no doubt as to the accused’s conformity. Because petitioner’s consent was not expressly given, the dismissal operated as a final disposition with prejudice, barring re-filing or reinstatement of the same charge.

• Offense of Nonpayment of Deficiency Tax Committed Upon Finality of Assessment — A violation for failure to pay deficiency corporate income tax after repeated demands is committed only upon service of notice and demand for payment and after the assessment becomes final and unappealable. Until then, no criminal violation exists, and the prescriptive period for the criminal action runs from the date of finality, not from the filing of the tax return.
• Double Jeopardy Requires Express Consent to Dismissal — Where the accused has been arraigned and has pleaded, a dismissal of the case at the instance of the prosecution without the express consent of the accused is a final dismissal with prejudice. Consent cannot be implied or presumed; it must be expressly given to foreclose any doubt regarding the accused’s conformity. Reinstatement of the information thereafter places the accused in double jeopardy.
• Prospective Application of B.P. Blg. 700 — The shortened three-year prescriptive period for assessment and collection of internal revenue taxes under Batas Pambansa Blg. 700 applies only to assessments covering taxable years beginning 1984. For taxable years prior, the five-year period under the 1977 NIRC remains operative.

• “An accused is placed in double jeopardy if he is again tried for an offense for which he has been convicted, acquitted or in another manner in which the indictment against him was dismissed without his consent. … This consent cannot be implied or presumed. Such consent must be expressed as to have no doubt as to the accused's conformity.”
• “By its nature the violation could only be committed after service of notice and demand for payment of the deficiency taxes upon the taxpayer. Hence, it cannot be said that the offense has been committed as early as 1980, upon filing of the income tax return. … The offense was committed only after the finality of the assessment coupled with taxpayer's willful refusal to pay the taxes within the allotted period.”

• Lim, Sr. v. Court of Appeals, 190 SCRA 616 (1990) — Followed; established that the offense of failure to pay deficiency tax is committed only after service of the final assessment and the taxpayer’s willful refusal to pay, and that the prescriptive period runs from that point.
• Caes v. Intermediate Appellate Court, 179 SCRA 54 (1990) — Applied; held that consent of the accused to a dismissal must be express and cannot be implied; a dismissal without such express consent is final and with prejudice to re-filing.

• Section 51(b) in relation to Section 73 of the 1977 NIRC (now Section 56[b] in relation to Section 255 of the 1997 NIRC) — The provisions defining the obligation to pay corporate income tax and the penal sanction for nonpayment; applied as the basis of the criminal charge.
• Batas Pambansa Blg. 700 — Amended Sections 318 and 319 of the 1977 NIRC to shorten the assessment and collection prescriptive period from five to three years; interpreted to apply prospectively to assessments covering taxable years beginning 1984, not to the 1979 deficiency.
• Section 340 of the 1977 NIRC (now Section 281 of the 1997 NIRC) — Prescribes a five-year period for violations of the Tax Code; the period was held to commence upon finality of the assessment, not the filing of the return.
• Article 22, Revised Penal Code — Provides for retroactive application of penal laws favorable to the accused; found inapplicable because prescriptive periods for tax assessment are not penal provisions.

Justices Puno, Kapunan, and Ynares-Santiago concurred. Chief Justice Davide, Jr. filed a separate dissenting opinion (not reproduced).

• Chief Justice Davide, Jr. — N/A (the full text of the dissenting opinion is not included in the decision as reproduced; only its existence is noted).