I M A Lawyer: October 2009

Friday, October 16, 2009

2009 Bar Questions - LEGAL ETHICS AND PRACTICAL EXERCISES

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The Bangalore Draft, approved at a Roundtable Meeting of Chief Justices held at The Hague, is now the New Code of Judicial Conduct in the Philippines.
An attorney ad hoc is a lawyer appointed by the court to represent an absentee defendant in a suit in which the appointment is made.
A charging lien, as distinguished from a retaining lien, is an active lien which can be enforced by execution.
A lawyer cannot refuse to divulge the name or identity of his client.
A notary public is disqualified from performing a notarial act when the party to the document is a relative by affinity within the 4th civil degree.

What is the object of the bar examinations? Explain. (2%)
What are the three (3) tests to determine conflict of interest for practicing lawyers? Explain each briefly. (3%)

III

May a party appear as his own counsel in a criminal or in a civil case? Explain. (3%)
What is the student practice rule? (2%)

In a case for homicide filed before the Regional Trial Court (RTC), Presiding Judge Quintero issued an order for the arrest of the accused, granted a motion for the reduction of bail, and set the date for the arraignment of the accused. Subsequently, Judge Quintero inhibited himself from the case, alleging that even before the case was raffled to his court, he already had personal knowledge of the circumstances surrounding the case. Is Judge Quintero’s inhibition justified? Explain. (3%)
After being diagnosed with stress dermatitis, Judge Rosalind, without seeking permission from the Supreme Court, refused to wear her robe during court proceedings. When her attention was called, she explained that whenever she wears her robe she is reminded of her heavy caseload, thus making her tense. This, in turn, triggers the outbreak of skin rashes. Is Judge Rosalind justified in not wearing her judicial robe? Explain. (3%)

Cliff and Greta were law school sweethearts. Cliff became a lawyer, but Greta dropped out. One day, Cliff asked Greta to sign a marriage contract. The following day, Cliff showed Greta the document already signed by an alleged solemnizing officer and two witnesses. Cliff then told Greta that they were already married and Greta consented to go on a honeymoon. Thereafter, the couple cohabited and begot a child. Two years later, Cliff left Greta and married a Venezuelan beauty. Incensed, Greta filed a disbarment complaint against Cliff. Will the case prosper? Explain. (4%)

Atty. Sabungero obtained a notarial commission. One Sunday, while he was at the cockpit, a person approached him with an affidavit that needed to be notarized. Atty. Sabungero immediately pulled out from his pocket his small notarial seal, and notarized the document. Was the affidavit validly notarized? Explain. (3%)

VII

Atty. Manuel is counsel for the defendant in a civil case pending before the RTC. After receiving the plaintiff’s Pre-Trial Brief containing the list of witnesses, Atty. Manuel interviewed some of the witnesses for the plaintiff without the consent of plaintiff’s counsel.

Did Atty. Manuel violate any ethical standard for lawyers? Explain. (3%)
Will your answer be the same if it was the plaintiff who was interviewed by Atty. Manuel without the consent of plaintiff’s counsel? Explain. (2%)

VIII

Court of Appeals (CA) Justice Juris was administratively charged with gross ignorance of the law for having issued an order "temporarily enjoining" the implementation of a writ of execution, and for having issued another order for the parties to "maintain the status quo" in the same case. Both orders are obviously without any legal basis and violate CA rules. In his defense, Justice Juris claims that the challenged orders were collegial acts of the CA Division to which he belonged. Thus, he posits that the charge should not be filed against him alone, but should include the two other CA justices in the Division. Is the contention of Justice Juris tenable? Explain. (3%)

Alexander Sison, resident of 111 Libertad St., Sampaloc, Manila, engages your services as lawyer. He tells you that a certain Mr. Juan Jamero of 222 Juan Luna St., Tondo, Manila, owes him P1,000,000.00; that the debt is long overdue; and that, despite repeated demands, Jamero has failed to comply with his obligation. He also shows you a promissory note, executed on January 3, 2008, wherein Jamero promises to pay the amount of P1,000,000.00, with 12% interest per annum, within one (1) year from date of note. Sison agrees to pay you attorney’s fees in the amount of P75,000.00, and a fee of P3,000.00 for every appearance in court.

As Sison’s lawyer, prepare the complaint that you will file in court against Juan Jamero. (10%)

Given the same facts in No. IX above, assume that summons had been served on Jamero, but no responsive pleading was filed within the reglementary period.

Prepare a motion to declare Jamero in default. (4%)

PART II

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The duty of a lawyer to his client is more paramount than his duty to the Court.
It is ethical for a lawyer to advise his client to enter a plea of guilty in a criminal case if the lawyer is personally convinced that he cannot win the case for his client.
There is no presumption of innocence or improbability of wrongdoing in an attorney’s favor when he deals with his client concurrently as lawyer and as businessman.
The satisfaction of a judgment debt does not, by itself, bar or extinguish the attorney’s liens, except when there has been a waiver by the lawyer, as shown by his conduct or his passive omission.
A companion or employee of the judge who lives in the judge’s household is included in the definition of the "judge’s family."

XII

Write the complete text of the attorney’s oath. (5%)

XIII

Atty. Hyde, a bachelor, practices law in the Philippines. On long weekends, he dates beautiful actresses in Hong Kong. Kristine, a neighbor in the Philippines, filed with the Supreme Court an administrative complaint against the lawyer because of sex videos uploaded through the internet showing Atty. Hyde’s sordid dalliance with the actresses in Hong Kong.

In his answer, Atty. Hyde (1) questions the legal personality and interest of Kristine to institute the complaint and (2) insists that he is a bachelor and the sex videos relate to his private life which is outside public scrutiny and have nothing to do with his law practice.

Rule on the validity of Atty. Hyde’s defenses. (5%)

XIV

Marlyn, a widow, engaged the services of Atty. Romanito in order to avert the foreclosure of several parcels of land mortgaged by her late husband to several creditors. Atty. Romanito advised the widow to execute in his favor deeds of sale over the properties, so that he could sell them and generate funds to pay her creditors. The widow agreed. Atty. Romanito did not sell the properties, but paid the mortgage creditors with his own funds, and had the land titles registered in his name. Atty. Romanito succeeds in averting the foreclosure. Is he administratively liable? Reasons. (3%)

Atty. Wilmar represented Beatriz in a partition case among heirs, and won. When Wilmar demanded payment of attorney’s fees, Beatriz refused to pay. Wilmar sued Beatriz for the unpaid attorney’s fees and obtained a favorable judgment. Thereafter, Beatriz filed an administrative complaint against Wilmar claiming that he lied when he stated in his claim for attorney’s fees that the subject of the partition case involved the entire estate of the deceased when, in fact, it covered only 50% thereof. Wilmar set up the defenses that (1) Beatriz filed the complaint only to delay the execution of the judgment ordering her to pay attorney’s fees and (2) Beatriz engaged in forum-shopping. Are the defenses of Atty. Wilmar tenable? Explain. (4%)

XVI

Atty. Simeon persuaded Armando, Benigno and Ciriaco to invest in a business venture that later went bankrupt. Armando, Benigno and Ciriaco charged Atty. Simeon with estafa. Simultaneously, they filed an administrative complaint against the lawyer with the Supreme Court.

If Simeon is convicted of estafa, will he be disbarred? Explain. (3%)
If Simeon is acquitted of the estafa charge, will the disbarment complaint be dismissed? Explain. (3%)

XVII

When Atty. Romualdo interviewed his client, Vicente, who is accused of murder, the latter confessed that he killed the victim in cold blood. Vicente also said that when he takes the witness stand, he will deny having done so. Is Atty. Romualdo obliged, under his oath as lawyer, to inform the judge that [a] his client is guilty and [b] his client will commit perjury on the witness stand? Explain. (4%)

XVIII

On a Saturday, Atty. Paterno filed a petition for a writ of amparo with the Court of Appeals (CA). Impelled by the urgency for the issuance of the writ, Atty. Paterno persuaded his friend, CA Justice Johnny de la Cruz, to issue the writ of amparo and the notice of hearing without the signature of the two other Justices-members of the CA division. Are Atty. Paterno and Justice de la Cruz guilty of unethical conduct? Explain. (4%)

XIX

Romeo Hacendero wants to authorize Juanito Ahente to sell, on cash basis, for a price not lower than P500,000.00, a parcel of land, situated in Muñoz, Nueva Ecija, and covered by Transfer Certificate of Title No. 123456, in the Register of Deeds of Nueva Ecija. Prepare a Special Power of Attorney granting such authority. (4%)

From the affidavits and the death certificate submitted during the preliminary investigation, the following facts are established: At 6:00 o’clock in the evening of September 13, 2009, at the corner of Dapitan and Dos Castillas Sts., Sampaloc, Manila, Edgar Bastonero, alias Bugoy, and Carlos Tirador, alias Pogi, accosted Johnny Escolar, a student, and demanded the latter’s cellular phone and wrist watch. Because Johnny resisted, Bastonero pulled out a knife and stabbed Johnny several times in the chest, causing instantaneous death. Bastonero and Tirador then ran away. The affidavits were executed by William Tan and Henry Uy, classmates of Johnny, who witnessed the entire incident. The death certificate was issued by Dr. Jose Cabra who conducted the autopsy on Johnny.

As Assistant City Prosecutor in Manila, prepare the appropriate criminal information to be filed in court. (10%)

-NOTHING FOLLOWS-

2009 Bar Questions - REMEDIAL LAW

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The Vallejo standard refers to jurisprudential norms considered by the court in assessing the probative value of DNA evidence.
The One-Day Examination of Witness Rule abbreviates court proceedings by having a witness fully examined in only one day during trial.
A suit for injunction is an action in rem.
Under the doctrine of adoptive admission, a third party's statement becomes the admission of the party embracing or espousing it.
Summons may be served by mail.

Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover the ownership and possession of two parcels of land; one situated in Pampanga, and the other in Bulacan.

May the action prosper? Explain. (2%)
Will your answer be the same if the action was for foreclosure of the mortgage over the two parcels of land? Why or why not? (2%)

III

Amorsolo, a Filipino citizen permanently residing in New York City, filed with the RTC of Lipa City a Complaint for Rescission of Contract of Sale of Land against Brigido, a resident of Barangay San Miguel, Sto. Tomas, Batangas. The subject property, located in Barangay Talisay, Lipa City, has an assessed value of P19,700.00. Appended to the complaint is Amorsolo's verification and certification of non-forum shopping executed in New York City, duly notarized by Mr. Joseph Brown, Esq., a notary public in the State of New York.

Brigido filed a motion to dismiss the complaint on the following grounds:

The court cannot acquire jurisdiction over the person of Amorsolo because he is not a resident of the Philippines; (2%)
The RTC does not have jurisdiction over the subject matter of the action involving real property with an assessed value of P19,700.00; exclusive and original jurisdiction is with the Municipal Trial Court where the defendant resides; (3%) and
The verification and certification of non-forum shopping are fatally defective because there is no accompanying certification issued by the Philippine Consulate in New York, authenticating that Mr. Brown is duly authorized to notarize the document. (3%)

Rule on the foregoing grounds with reasons.

Pedrito and Tomas, Mayor and Treasurer, respectively, of the Municipality of San Miguel, Leyte, are charged before the Sandiganbayan for violation of Section 3 (e), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). The information alleges, among others, that the two conspired in the purchase of several units of computer through personal canvass instead of a public bidding, causing undue injury to the municipality.

Before arraignment, the accused moved for reinvestigation of the charge, which the court granted. After reinvestigation, the Office of the Special Prosecutor filed an amended information duly signed and approved by the Special Prosecutor, alleging the same delictual facts, but with an additional allegation that the accused gave unwarranted benefits to SB Enterprises owned by Samuel. Samuel was also indicted under the amended information.

Before Samuel was arraigned, he moved to quash the amended information on the ground that the officer who filed the same had no authority to do so. Resolve the motion to quash with reasons. (3%)

Frank and Gina were married on June 12, 1987 in Manila. Barely a year after the wedding, Frank exhibited a violent temperament, forcing Gina, for reasons of personal safety, to live with her parents. A year thereafter, Gina found employment as a domestic helper in Singapore, where she worked for ten consecutive years. All the time she was abroad, Gina had absolutely no communications with Frank, nor did she hear any news about him. While in Singapore, Gina met and fell in love with Willie.

On July 4, 2007, Gina filed a petition with the RTC of Manila to declare Frank presumptively dead, so that she could marry Willie. The RTC granted Gina's petition. The Office of the Solicitor General (OSG) filed a Notice of Appeal with the RTC, stating that it was appealing the decision to the Court of Appeals on questions of fact and law.

Is a petition for Declaration of Presumptive Death a special proceeding? Why or why not? (2%)
As the RTC judge who granted Gina's petition, will you give due course to the OSG's Notice of Appeal? Explain. (3%)

Arrested in a buy-bust operation, Edmond was brought to the police station where he was informed of his constitutional rights. During the investigation, Edmond refused to give any statement. However, the arresting officer asked Edmond to acknowledge in writing that six (6) sachets of "shabu" were confiscated from him. Edmond consented and also signed a receipt for the amount of P3,000.00, allegedly representing the "purchase price of the shabu." At the trial, the arresting officer testified and identified the documents executed and signed by Edmond. Edmond's lawyer did not object to the testimony. After the presentation of the testimonial evidence, the prosecutor made a formal offer of evidence which included the documents signed by Edmond.

Edmond's lawyer objected to the admissibility of the documents for being the "fruit of the poisoned tree." Resolve the objection with reasons. (3%)

VII

Cresencio sued Dioscoro for collection of a sum of money. During the trial, but after the presentation of plaintiff's evidence, Dioscoro died. Atty. Cruz, Dioscoro's counsel, then filed a motion to dismiss the action on the ground of his client's death. The court denied the motion to dismiss and, instead, directed counsel to furnish the court with the names and addresses of Dioscoro's heirs and ordered that the designated administrator of Dioscoro's estate be substituted as representative party.

After trial, the court rendered judgment in favor of Cresencio. When the decision had become final and executory, Cresencio moved for the issuance of a writ of execution against Dioscoro's estate to enforce his judgment claim. The court issued the writ of execution. Was the court's issuance of the writ of execution proper? Explain. (2%)

VIII

On July 15, 2009, Atty. Manananggol was served copies of numerous unfavorable judgments and orders. On July 29, 2009, he filed motions for reconsideration which were denied. He received the notices of denial of the motions for reconsideration on October 2, 2009, a Friday. He immediately informed his clients who, in turn, uniformly instructed him to appeal. How, when and where should he pursue the appropriate remedy for each of the following: (10%)

Judgment of a Municipal Trial Court (MTC) pursuant to its delegated jurisdiction dismissing his client's application for land registration?
Judgment of the Regional Trial Court (RTC) denying his client's petition for a Writ of Habeas Data?
Order of a Family Court denying his client's petition for Habeas Corpus in relation to custody of a minor child?
Order of the RTC denying his client's Petition for Certiorari questioning the Metropolitan Trial Court's (MeTC's) denial of a motion to suspend criminal proceedings?
Judgment of the First Division of the Court of Tax Appeals (CTA) affirming the RTC decision convicting his client for violation of the National Internal Revenue Code?

Modesto sued Ernesto for a sum of money, claiming that the latter owed him P1-million, evidenced by a promissory note, quoted and attached to the complaint. In his answer with counterclaim, Ernesto alleged that Modesto coerced him into signing the promissory note, but that it is Modesto who really owes him P1.5-million. Modesto filed an answer to Ernesto's counterclaim admitting that he owed Ernesto, but only in the amount of P0.5-million. At the pre-trial, Modesto marked and identified Ernesto's promissory note. He also marked and identified receipts covering payments he made to Ernesto, to the extent of P0.5-million, which Ernesto did not dispute.

After pre-trial, Modesto filed a motion for judgment on the pleadings, while Ernesto filed a motion for summary judgment on his counterclaim. Resolve the two motions with reasons. (5%)

Upon termination of the pre-trial, the judge dictated the pre-trial order in the presence of the parties and their counsel, reciting what had transpired and defining three (3) issues to be tried.

If, immediately upon receipt of his copy of the pre-trial order, plaintiff's counsel should move for its amendment to include a fourth (4th) triable issue which he allegedly inadvertently failedto mention when the judge dictated the order. Should the motion to amend be granted? Reasons. (2%)
Suppose trial had already commenced and after the plaintiff's second witness had testified, the defendant's counsel moves for the amendment of the pre-trial order to include a fifth (5th) triable issue vital to his client's defense. Should the motion be granted over the objection of plaintiff's counsel? Reasons. (3%)

PART II

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The accused in a criminal case has the right to avail of the various modes of discovery.
The viatory right of a witness served with a subpoena ad testificandum refers to his right not to comply with the subpoena.
In the exercise of its original jurisdiction, the Sandiganbayan may grant petitions for the issuance of a writ of habeas corpus.
An electronic document is the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.
The filing of a motion for the reconsideration of the trial court's decision results in the abandonment of a perfected appeal.

XII

Mike was renting an apartment unit in the building owned by Jonathan. When Mike failed to pay six months' rent, Jonathan filed an ejectment suit. The Municipal Trial Court (MTC) rendered judgment in favor of Jonathan, who then filed a motion for the issuance of a writ of execution. The MTC issued the writ.

How can Mike stay the execution of the MTC judgment? Explain. (2%)
Mike appealed to the Regional Trial Court (RTC), which affirmed the MTC decision. Mike then filed a petition for review with the Court of Appeals (CA). The CA dismissed the petition on the ground that the sheriff had already executed the MTC decision and had ejected Mike from the premises, thus rendering the appeal moot and academic. Is the CA correct? Reasons. (3%)

XIII

Continental Chemical Corporation (CCC) filed a complaint for a sum of money against Barstow Trading Corporation (BTC) for the latter's failure to pay for its purchases of industrial chemicals. In its answer, BTC contended that it refused to pay because CCC misrepresented that the products it sold belonged to a new line, when in fact they were identical with CCC's existing products. To substantiate its defense, BTC filed a motion to compel CCC to give a detailed list of the products' ingredients and chemical components, relying on the right to avail of the modes of discovery allowed under Rule 27. CCC objected, invoking confidentiality of the information sought by BTC. Resolve BTC's motion with reasons. (3%)
Blinded by extreme jealousy, Alberto shot his wife, Betty, in the presence of his sister, Carla. Carla brought Betty to the hospital. Outside the operating room, Carla told Domingo, a male nurse, that it was Alberto who shot Betty. Betty died while undergoing emergency surgery. At the trial of the parricide charges filed against Alberto, the prosecutor sought to present Domingo as witness, to testify on what Carla told him. The defense counsel objected on the ground that Domingo's testimony is inadmissible for being hearsay. Rule on the objection with reasons. (3%)

XIV

The Republic of the Philippines, through the Department of Public Works and Highways (DPWH) filed with the RTC a complaint for the expropriation of the parcel of land owned by Jovito. The land is to be used as an extension of the national highway. Attached to the complaint is a bank certificate showing that there is, on deposit with the Land Bank of the Philippines, an amount equivalent to the assessed value of the property. Then DPWH filed a motion for the issuance of a writ of possession. Jovito filed a motion to dismiss the complaint on the ground that there are other properties which would better serve the purpose.

Will Jovito's motion to dismiss prosper? Explain. (3%)
As judge, will you grant the writ of possession prayed for by DPWH? Explain. (3%)

Florencio sued Guillermo for partition of a property they owned in common. Guillermo filed a motion to dismiss the complaint because Florencio failed to implead Hernando and Inocencio, the other co-owners of the property. As judge, will you grant the motion to dismiss? Explain. (3%)
Mariano, through his attorney-in-fact, Marcos, filed with the RTC of Baguio City a complaint for annulment of sale against Henry. Marcos and Henry both reside in Asin Road, Baguio City, while Mariano resides in Davao City. Henry filed a motion to dismiss the complaint on the ground of prematurity for failure to comply with the mandatory barangay conciliation. Resolve the motion with reasons. (3%)

XVI

After the prosecution had rested and made its formal offer of evidence, with the court admitting all of the prosecution evidence, the accused filed a demurrer to evidence with leave of court. The prosecution was allowed to comment thereon. Thereafter, the court granted the demurrer, finding that the accused could not have committed the offense charged. If the prosecution files a motion for reconsideration on the ground that the court order granting the demurrer was not in accord with the law and jurisprudence, will the motion prosper? Explain your answer. (3%)
A criminal information is filed in court charging Anselmo with homicide. Anselmo files a motion to quash the information on the ground that no preliminary investigation was conducted. Will the motion be granted? Why or why not? (3%)

XVII

Having obtained favorable judgment in his suit for a sum of money against Patricio, Orencio sought the issuance of a writ of execution. When the writ was issued, the sheriff levied upon a parcel of land that Patricio owns, and a date was set for the execution sale.

How may Patricio prevent the sale of the property on execution? (2%)
If Orencio is the purchaser of the property at the execution sale, how much does he have to pay? Explain. (2%)
If the property is sold to a third party at the execution sale, what can Patricio do to recover the property? Explain. (2%)

XVIII

Pinoy died without a will. His wife, Rosie, and three children executed a deed of extrajudicial settlement of his estate. The deed was properly published and registered with the Office of the Register of Deeds. Three years thereafter, Suzy appeared, claiming to be the illegitimate child of Pinoy. She sought to annul the settlement alleging that she was deprived of her rightful share in the estate.

Rosie and the three children contended that (1) the publication of the deed constituted constructive notice to the whole world, and should therefore bind Suzy; and (2) Suzy's action had already prescribed.

Are Rosie and the three children correct? Explain. (4%)

XIX

Distinguish the two (2) modes of appeal from the judgment of the Regional Trial Court to the Court of Appeals. (3%)
What is the writ of amparo? How is it distinguished from the writ of habeas corpus? (2%)
What is the writ of habeas data? (1%)

-NOTHING FOLLOWS-

2009 Bar Questions - CRIMINAL LAW

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

Amado, convicted of rape but granted an absolute pardon by the President, and one year thereafter, convicted of homicide, is a recidivist.
The creditor who resorts to forced labor of a child under the pretext of reimbursing himself for the debt incurred by the child’s father commits the crime of slavery.
The use of an unlicensed firearm in homicide is considered a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance.
A person who, on the occasion of a robbery, kills a bystander by accident is liable for two separate crimes: robbery and reckless imprudence resulting in homicide.
A policeman who, without a judicial order, enters a private house over the owner’s opposition is guilty of trespass to dwelling.

Antero Makabayan was convicted of the crime of Rebellion. While serving sentence, he escaped from jail. Captured, he was charged with, and convicted of, Evasion of Service of Sentence. Thereafter, the President of the Philippines issued an amnesty proclamation for the offense of Rebellion. Antero applied for and was granted the benefit of the amnesty proclamation.

Antero then filed a petition for habeas corpus, praying for his immediate release from confinement. He claims that the amnesty extends to the offense of Evasion of Service of Sentence. As judge, will you grant the petition? Discuss fully. (4%)

III

Rigoberto gate-crashed the 71^st birthday party of Judge Lorenzo. Armed with a piece of wood commonly known as dos por dos, Rigoberto hit Judge Lorenzo on the back, causing the latter’s hospitalization for 30 days. Upon investigation, it appeared that Rigoberto had a grudge against Judge Lorenzo who, two years earlier, had cited Rigoberto in contempt and ordered his imprisonment for three (3) days.

Is Rigoberto guilty of Direct Assault? Why or why not? (3%)
Would your answer be the same if the reason for the attack was that when Judge Lorenzo was still a practicing lawyer ten years ago, he prosecuted Rigoberto and succeeded in sending him to jail for one year? Explain your answer. (3%)

Charlie hated his classmate, Brad, because the latter was assiduously courting Lily, Charlie’s girlfriend. Charlie went to a veterinarian and asked for some poison on the pretext that it would be used to kill a very sick, old dog. Actually, Charlie intended to use the poison on Brad.

The veterinarian mistakenly gave Charlie a non-toxic powder which, when mixed with Brad’s food, did not kill Brad.

Did Charlie commit any crime? If so, what and why? If not, why not? (3%)
Would your answer be the same if Brad proved to be allergic to the powder, and after ingesting it with his food, fell ill and was hospitalized for ten (10) days? Explain. (3%)

Ponciano borrowed Ruben’s gun, saying that he would use it to kill Freddie. Because Ruben also resented Freddie, he readily lent his gun, but told Ponciano: "O, pagkabaril mo kay Freddie, isauli mo kaagad, ha." Later, Ponciano killed Freddie, but used a knife because he did not want Freddie’s neighbors to hear the gunshot.

What, if any, is the liability of Ruben? Explain. (3%)
Would your answer be the same if, instead of Freddie, it was Manuel, a relative of Ruben, who was killed by Ponciano using Ruben’s gun? Explain. (3%)

Baldo killed Conrad in a dark corner, at midnight, on January 2, 1960. Dominador witnessed the entire incident, but he was so scared to tell the authorities about it.

On January 2, 1970, Dominador, bothered by his conscience, reported the matter to the police. After investigation, the police finally arrested Baldo on January 6, 1980. Charged in court, Baldo claims that the crime he committed had already prescribed.

Is Baldo’s contention correct? Explain. (3%)

VII

Charina, Clerk of Court of an RTC Branch, promised the plaintiff in a case pending before the court that she would convince the Presiding Judge to decide the case in plaintiff’s favor. In consideration therefor, the plaintiff gave Charina P20,000.00.

Charina was charged with violation of Section 3 (b) of Republic Act No. 3019, prohibiting any public officer from directly or indirectly requesting or receiving any gift, present, percentage, or benefit in connection with any contract or transaction x x x wherein the public officer, in his official capacity, has to intervene under the law.

While the case was being tried, the Ombudsman filed another information against Charina for Indirect Bribery under the Revised Penal Code. Charina demurred to the second information, claiming that she can no longer be charged under the Revised Penal Code having been charged for the same act under R.A. 3019.

Is Charina correct? Explain. (3%)

VIII

While Alfredo, Braulio, Ciriaco, and Domingo were robbing a bank, policemen arrived. A firefight ensued between the bank robbers and the responding policemen, and one of the policemen was killed.

What crime or crimes, if any, had been committed? Explain. (3%)
Suppose it was Alfredo who was killed by the responding policemen, what charges can be filed against Braulio, Ciriaco and Domingo? Explain. (2%)
Suppose in the course of the robbery, before the policemen arrived, Braulio shot and killed Alfredo following a heated disagreement on who should carry the money bags, what would be the criminal liability of Braulio, Ciriaco and Domingo? Explain. (2%)

Virgilio, armed with a gun, stopped a van along a major thoroughfare in Manila, pointed the gun at the driver and shouted: "Tigil! Kidnap ito!"

Terrified, the driver, Juanito, stopped the van and allowed Virgilio to board. Inside the van were Jeremias, a 6-year-old child, son of a multi-millionaire, and Daday, the child’s nanny. Virgilio told Juanito to drive to a deserted place, and there, ordered the driver to alight. Before Juanito was allowed to go, Virgilio instructed him to tell Jeremias’ parents that unless they give a ransom of P10-million within two (2) days, Jeremias would be beheaded. Daday was told to remain in the van and take care of Jeremias until the ransom is paid. Virgilio then drove the van to his safehouse.

What crime or crimes, if any, did Virgilio commit? Explain. (5%)

To secure the release of his brother Willy, a detention prisoner, and his cousin Vincent, who is serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to issue an Order which would allow the two prisoners to be brought out of jail. At first, the Clerk refused, but when Chito gave her P50,000.00, she consented.

She then prepared an Order requiring the appearance in court of Willy and Vincent, ostensibly as witnesses in a pending case. She forged the judge’s signature, and delivered the Order to the jail warden who, in turn, allowed Willy and Vincent to go out of jail in the company of an armed escort, Edwin. Chito also gave Edwin P50,000.00 to leave the two inmates unguarded for three minutes and provide them with an opportunity to escape. Thus, Willy and Vincent were able to escape.

What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch Clerk of Court, Edwin, and the jail warden? Explain your answer. (5%)

PART II

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

Life imprisonment is a penalty more favorable to the convict than reclusion perpetua.
Voluntary surrender is a mitigating circumstance in all acts and omissions punishable under the Revised Penal Code.
In a prosecution for fencing under P.D. 1612, it is a complete defense for the accused to prove that he had no knowledge that the goods or articles found in his possession had been the subject of robbery.
In the crime of libel, truth is an absolute defense.
For a person who transacts an instrument representing the proceeds of a covered unlawful activity to be liable under the Anti-Money Laundering Act (R.A. 9160, as amended), it must be shown that he has knowledge of the identities of the culprits involved in the commission of the predicate crimes.

XII

In a conviction for homicide, the trial court appreciated two (2) mitigating circumstances and one (1) aggravating circumstance. Homicide under Article 249 of the Revised Penal Code is punishable by reclusion temporal, an imprisonment term of twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, determine the appropriate penalty to be imposed. Explain. (3%)
Will your answer be the same if it is a conviction for illegal possession of drugs under R.A. 9165 (Dangerous Drugs Act of 2002), the prescribed penalty of which is also imprisonment for a term of twelve (12) years and one (1) day to twenty (20) years? Why or why not? (3%)

XIII

Angelo devised a Ponzi Scheme in which 500 persons were deceived into investing their money upon a promise of a capital return of 25%, computed monthly, and guaranteed by post-dated checks. During the first two months following the investment, the investors received their profits, but thereafter, Angelo vanished.

Angelo was charged with 500 counts of estafa and 2,000 counts of violation of Batas Pambansa (BP) 22. In his motion to quash, Angelo contends that he committed a continued crime, or delito continuado, hence, he committed only one count of estafa and one count of violation of BP 22.

What is delito continuado? (1%)
Is Angelo’s contention tenable? Explain. (4%)

XIV

Following his arrest after a valid buy-bust operation, Tommy was convicted of violation of Section 5, Republic Act 9165. On appeal, Tommy questioned the admissibility of the evidence because the police officers who conducted the buy-bust operation failed to observe the requisite "chain of custody" of the evidence confiscated and/or seized from him.

What is the "chain of custody" requirement in drug offenses? What is its rationale? What is the effect of failure to observe the requirement? (3%)

Joe was 17 years old when he committed homicide in 2005. The crime is punishable by reclusion temporal. After two years in hiding, he was arrested and appropriately charged in May 2007. Since Republic Act 9344 (Juvenile Justice and Welfare Act of 2006) was already in effect, Joe moved to avail of the process of intervention or diversion.

What is intervention or diversion? Is Joe entitled to intervention or diversion? Explain. (3%)
Suppose Joe’s motion for intervention or diversion was denied, and he was convicted two (2) years later when Joe was already 21 years old, should the judge apply the suspension of sentence? Explain. (2%)
Suppose Joe was convicted of attempted murder with a special aggravating circumstance and was denied suspension of sentence, would he be eligible for probation under Presidential Decree (PD) 968, considering that the death penalty is imposable for the consummated felony? Explain. (2%)

XVI

Roger and Jessie, Municipal Mayor and Treasurer, respectively, of San Rafael, Leyte, caused the disbursement of public funds allocated for their local development programs for 2008. Records show that the amount of P2-million was purportedly used as financial assistance for a rice production livelihood project. Upon investigation, however, it was found that Roger and Jessie falsified the disbursement vouchers and supporting documents in order to make it appear that qualified recipients who, in fact, are non-existent individuals, received the money.

Roger and Jessie are charged with malversation through falsification and violation of Section 3 (e) of R.A. 3019 for causing undue injury to the government. Discuss the propriety of the charges filed against Roger and Jessie. Explain. (4%)

XVII

Wenceslao and Loretta were staying in the same boarding house, occupying different rooms. One late evening, when everyone in the house was asleep, Wenceslao entered Loretta’s room with the use of a picklock. Then, with force and violence, Wenceslao ravished Loretta. After he had satisfied his lust, Wenceslao stabbed Loretta to death and, before leaving the room, took her jewelry.

What crime or crimes, if any, did Wenceslao commit? Explain. (4%)
Discuss the applicability of the relevant aggravating circumstances of dwelling, nocturnity and the use of the picklock to enter the room of the victim. (3%)
Would your answer to [a] be the same if, despite the serious stab wounds she sustained, Loretta survived? Explain. (3%)

XVIII

At the Maligaya Disco Club, Leoncio and Evelyn were intimately dancing a very seductive dance number. While gyrating with their bodies, Leoncio dipped his private parts in Evelyn’s buttocks. Incensed, Evelyn protested, but Leoncio continued and tightly embraced her.

What crime or crimes, if any, did Leoncio commit? Explain. (3%)
Would your answer be the same if, even after the music had stopped, Leoncio continued to dance dirty, rubbing his private parts on Evelyn’s buttocks? Explain. (3%)

XIX

Delmo learned that his enemy, Oscar, was confined at the Intensive Care Unit (ICU) of the Philippine Medical Center. Intending to kill Oscar, Delmo disguised himself as a nurse, entered the ICU, and saw a man lying on the hospital bed with several life-saving tubes attached to the body. Delmo disconnected the tubes and left. Later, the resident physician doing his rounds entered the ICU and, seeing the disconnected tubes, replaced them. The patient survived. It turned out that the patient was Larry, as Oscar had been discharged from the hospital earlier.

Delmo was charged with frustrated murder, qualified by evident premeditation and treachery as aggravating circumstances. Discuss the propriety of the charge. (4%)

-NOTHING FOLLOWS-

2009 Bar Questions - MERCANTILE LAW

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The Denicola Test in intellectual property law states that if design elements of an article reflect a merger of aesthetic and functional considerations, the artistic aspects of the work cannot be conceptually separable from the utilitarian aspects; thus, the article cannot be copyrighted.
If the Ombudsman is convinced that there is a violation of law after investigating a complaint alleging illicit bank deposits of a public officer, the Ombudsman may order the bank concerned to allow in camera inspection of bank records and documents.
Even if the seller and the buyer in a sale in bulk violate the Bulk Sales Law, the sale would still be valid.
Dividends on shares of stocks can only be declared out of unrestricted retained earnings of the corporation.
A bank under receivership can still grant new loans and accept new deposits.

Atlantis Realty Corporation (ARC), a local firm engaged in real estate development, plans to sell one of its prime assets --- a three-hectare land valued at about P100-million. For this purpose, the board of directors of ARC unanimously passed a resolution approving the sale of the property for P75-million to Shangrila Real Estate Ventures (SREV), a rival realty firm. The resolution also called for a special stockholders meeting at which the proposed sale would be up for ratification.

Atty. Edric, a stockholder who owns only one (1) share in ARC, wants to stop the sale. He then commences a derivative suit for and in behalf of the corporation, to enjoin the board of directors and the stockholders from approving the sale.

Can Atty. Edric, who owns only one (1) share in the company, initiate a derivative suit? Why or why not? (2%)
If such a suit is commenced, would it constitute an intra-corporate dispute? If so, why and where would such a suit be filed? If not, why not? (2%)
Will the suit prosper? Why or why not? (3%)

III

Armando, a resident of Manila, borrowed P3-million from Bernardo, offering as security his 500 shares of stock worth P1.5-million in Xerxes Corporation, and his 2007 BMW sedan, valued at P2-million. The mortgage on the shares of stock was registered in the Office of the Register of Deeds of Makati City where Xerxes Corporation has its principal office. The mortgage on the car was registered in the Office of the Register of Deeds of Manila. Armando executed a single Affidavit of Good Faith, covering both mortgages.

Armando defaulted on the payment of his obligation; thus, Bernardo foreclosed on the two chattel mortgages. Armando filed suit to nullify the foreclosure and the mortgages, raising the following issues:

The execution of only one Affidavit of Good Faith for both mortgages invalidated the two mortgages; (2%) and
The mortgage on the shares of stocks should have been registered in the Office of the Register of Deeds of Manila where he resides, as well as in the stock and transfer book of Xerxes Corporation. (3%)

Rule on the foregoing issues with reasons.

Assume that Bernardo extrajudicially foreclosed on the mortgages, and both the car and the shares of stock were sold at public auction. If the proceeds from such public sale should be P1-million short of Armando’s total obligation, can Bernardo recover the deficiency? Why or why not? (2%)

Antarctica Life Assurance Corporation (ALAC) publicly offered a specially designed insurance policy covering persons between the ages of 50 to 75 who may be afflicted with serious and debilitating illnesses. Quirico applied for insurance coverage, stating that he was already 80 years old. Nonetheless, ALAC approved his application.

Quirico then requested ALAC for the issuance of a cover note while he was trying to raise funds to pay the insurance premium. ALAC granted the request. Ten days after he received the cover note, Quirico had a heart seizure and had to be hospitalized. He then filed a claim on the policy.

Can ALAC validly deny the claim on the ground that the insurance coverage, as publicly offered, was available only to persons 50 to 75 years of age? Why or why not? (2%)
Did ALAC’s issuance of a cover note result in the perfection of an insurance contract between Quirico and ALAC? Explain. (3%)

Cecilio is planning to put up a grocery store in the subdivision where he and his family reside. To promote this proposed business venture, he told his wife and three children to send out promotional text messages to all the residents in the subdivision. Cecilio’s family members did as instructed, and succeeded in reaching, through text messages, more than 80% of the residents in the subdivision.

Is Cecilio habitually engaged in commerce even if the grocery store has yet to be established? Explain your answer. (3%)

Lorenzo drew a bill of exchange in the amount of P100,000.00 payable to Barbara or order, with his wife, Diana, as drawee. At the time the bill was drawn, Diana was unaware that Barbara is Lorenzo’s paramour.

Barbara then negotiated the bill to her sister, Elena, who paid for it for value, and who did not know who Lorenzo was. On due date, Elena presented the bill to Diana for payment, but the latter promptly dishonored the instrument because, by then, Diana had already learned of her husband’s dalliance.

Was the bill lawfully dishonored by Diana? Explain. (3%)
Does the illicit cause or consideration adversely affect the negotiability of the bill? Explain. (3%)

VII

Global Transport Services, Inc. (GTSI) operates a fleet of cargo vessels plying interisland routes. One of its vessels, MV Dona Juana, left the port of Manila for Cebu laden with, among other goods, 10,000 television sets consigned to Romualdo, a TV retailer in Cebu.

When the vessel was about ten nautical miles away from Manila, the ship captain heard on the radio that a typhoon which, as announced by PAG-ASA, was on its way out of the country, had suddenly veered back into Philippine territory. The captain realized that MV Dona Juana would traverse the storm’s path, but decided to proceed with the voyage. True enough, the vessel sailed into the storm. The captain ordered the jettison of the 10,000 television sets, along with some other cargo, in order to lighten the vessel and make it easier to steer the vessel out of the path of the typhoon. Eventually, the vessel, with its crew intact, arrived safely in Cebu.

Will you characterize the jettison of Romualdo’s TV sets as an average? If so, what kind of an average, and why? If not, why not? (3%)
Against whom does Romualdo have a cause of action for indemnity of his lost TV sets? Explain. (3%)

VIII

Maharlikang Pilipino Banking Corporation (MPBC) operates several branches of Maharlikang Pilipino Rural Bank in Eastern Visayas. Almost all the branch managers are close relatives of the members of the Board of Directors of the corporation. Many undeserving relatives of the branch managers were granted loans. In time, the branches could not settle their obligations to depositors and creditors.

Receiving reports of these irregularities, the Supervising and Examining Department (SED) of the Monetary Board prepared a detailed report (SED Report) specifying the facts and the chronology of events relative to the problems that beset MPBC rural bank branches. The report concluded that the bank branches were unable to pay their liabilities as they fell due, and could not possibly continue in business without incurring substantial losses to its depositors and creditors.

May the Monetary Board order the closure of the MPBC rural banks relying only on the SED Report, without need of an examination? Explain. (3%)
If MPBC hires you as lawyer because the Monetary Board has forbidden it from carrying on its business due to its imminent insolvency, what action will you institute to question the Monetary Board’s order? Explain. (3%)

When is there an ultra vires act on the part of [a] the corporation; [b] the board of directors; and [c] the corporate officers. (3%)

What are the so-called exempt securities under the Securities Regulation Code? (2%)

PART II

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

A loan agreement which provides that the debtor shall pay interest at the rate determined by the bank’s branch manager violates the disclosure requirement of the Truth in Lending Act.
Under the Warehouse Receipts Law, a warehouseman loses his lien upon the goods when he surrenders possession thereof.
The Howey Test states that there is an investment contract when a person invests money in a common enterprise and is led to expect profits primarily from the efforts of others.
A document, dated July 15, 2009, that reads: "Pay to X or order the sum of P5,000.00 five days after his pet dog, Sparky, dies. Signed Y." is a negotiable instrument.
"A bank is bound to know its depositor’s signature" is an inflexible rule in determining the liability of a bank in forgery cases.

XII

Gaudencio, a store owner, obtained a P1-million loan from Bathala Financing Corporation (BFC). As security, Gaudencio executed a "Deed of Assignment of Receivables," assigning 15 checks received from various customers who bought merchandise from his store. The checks were duly indorsed by Gaudencio’s customers.

The Deed of Assignment contains the following stipulation:

"If, for any reason, the receivables or any part thereof cannot be paid by the obligors, the ASSIGNOR unconditionally and irrevocably agrees to pay the same, assuming the liability to pay, by way of penalty, three percent (3%) of the total amount unpaid, for the period of delay until the same is fully paid."

When the checks became due, BFC deposited them for collection, but the drawee banks dishonored all the checks for one of the following reasons: "account closed," "payment stopped," "account under garnishment," or "insufficiency of funds." BFC wrote Gaudencio notifying him of the dishonored checks, and demanding payment of the loan. Because Gaudencio did not pay, BFC filed a collection suit.

In his defense, Gaudencio contended that [a] BFC did not give timely notice of dishonor (of the checks); and [b] considering that the checks were duly indorsed, BFC should proceed against the drawers and the indorsers of the checks.

Are Gaudencio’s defenses tenable? Explain. (5%)

XIII

Ciriaco leased a commercial apartment from Supreme Building Corporation (SBC). One of the provisions of the one-year lease contract states:

"18. x x x The LESSEE shall not insure against fire the chattels, merchandise, textiles, goods and effects placed at any stall or store or space in the leased premises without first obtaining the written consent of the LESSOR. If the LESSEE obtains fire insurance coverage without the consent of the LESSOR, the insurance policy is deemed assigned and transferred to the LESSOR for the latter’s benefit."

Notwithstanding the stipulation in the contract, without the consent of SBC, Ciriaco insured the merchandise inside the leased premises against loss by fire in the amount of P500,000.00 with First United Insurance Corporation (FUIC).

A day before the lease contract expired, fire broke out inside the leased premises, damaging Ciriaco’s merchandise. Having learned of the insurance earlier procured by Ciriaco, SBC demanded from FUIC that the proceeds of the insurance policy be paid directly to it, as provided in the lease contract.

Who is legally entitled to receive the insurance proceeds? Explain. (4%)

XIV

XXX Corporation (XXX) and its sister company, YYY Corporation (YYY), are both under judicial receivership. The receiver has the option to sell all or substantially all of the properties of YYY to XXX, or simply merge the two corporations. Under either option, the requirements under the Corporation Code have to be complied with.

The receiver seeks your advice on whether the Bulk Sales Law will apply to either, or both, options. What will your advice be? Explain. (4%)

After disposing of his last opponent in only two rounds in Las Vegas, the renowned Filipino boxer Sonny Bachao arrived at the Ninoy Aquino International Airport met by thousands of hero-worshipping fans and hundreds of media photographers. The following day, a colored photograph of Sonny wearing a black polo shirt embroidered with the 2-inch Lacoste crocodile logo appeared on the front page of every Philippine newspaper.

Lacoste International, the French firm that manufactures Lacoste apparel and owns the Lacoste trademark, decided to cash in on the universal popularity of the boxing icon. It reprinted the photographs, with the permission of the newspaper publishers, and went on a world-wide blitz of print commercials in which Sonny is shown wearing a Lacoste shirt alongside the phrase "Sonny Bachao just loves Lacoste."

When Sonny sees the Lacoste advertisements, he hires you as lawyer and asks you to sue Lacoste International before a Philippine court:

For trademark infringement in the Philippines because Lacoste International used his image without his permission; (2%)
For copyright infringement because of the unauthorized use of the published photographs; (2%) and
For injunction in order to stop Lacoste International from featuring him in their commercials. (2%)

Will these actions prosper? Explain.

Can Lacoste International validly invoke the defense that it is not a Philippine company and, therefore, Philippine courts have no jurisdiction? Explain. (2%)

XVI

On September 15, 2007, XYZ Corporation issued to Paterno 800 preferred shares with the following terms:

"The Preferred Shares shall have the following rights, preferences, qualifications, and limitations, to wit:

The right to receive a quarterly dividend of One Per Centum (1%), cumulative and participating;
These shares may be redeemed, by drawing of lots, at any time after two (2) years from date of issue, at the option of the Corporation; x x x."

Today, Paterno sues XYZ Corporation for specific performance, for the payment of dividends on, and to compel the redemption of, the preferred shares, under the terms and conditions provided in the stock certificates. Will the suit prosper? Explain. (3%)

XVII

Philippine Palaces Realty (PPR) had been representing itself as a registered broker of securities, duly authorized by the Securities and Exchange Commission (SEC). On October 6, 1996, PPR sold to spouses Leon and Carina one (1) timeshare of Palacio del Boracay for US$7,500.00. However, its Registration Statement became effective only on February 11, 1998 after the SEC issued a resolution declaring that PPR was authorized to sell securities, including timeshares.

On March 30, 1998, Leon and Carina wrote PPR rescinding their purchase agreement and demanding the refund of the amount they paid, because the Palacio del Boracay timeshare was sold to them by PPR without the requisite license or authority from the SEC. PPR contended that the grant of the SEC authority had the effect of ratifying the purchase agreement (with Leon and Carina) of October 6, 1996.

Is the contention of PPR correct? Explain. (3%)

XVIII

Triple A Corporation (Triple A) was incorporated in 1960, with 500 founders’ shares and 78 common shares as its initial capital stock subscription. However, Triple A registered its stock and transfer book only in 1978, and recorded merely 33 common shares as the corporation’s issued and outstanding shares.

In 1982, Juancho, the sole heir of one of the original incorporators filed a petition with the Securities and Exchange Commission (SEC) for the registration of his property rights over 120 founders’ shares and 12 common shares. The petition was supported by a copy of the Articles of Incorporation indicating the incorporators’ initial capital stock subscription. Will the petition be granted? Why or why not? (3%)
On May 6, 1992, a special stockholders’ meeting was held. At this meeting, what would have constituted a quorum? Explain. (3%)
What is a stock and transfer book? (1%)

XIX

One of the passenger buses owned by Continental Transit Corporation (CTC), plying its usual route, figured in a collision with another bus owned by Universal Transport, Inc. (UTI). Among those injured inside the CTC bus were: Romeo, a stow away; Samuel, a pickpocket then in the act of robbing his seatmate when the collision occurred; Teresita, the bus driver’s mistress who usually accompanied the driver on his trips for free; and Uriel, holder of a free riding pass he won in a raffle held by CTC.

Will a suit for breach of contract of carriage filed by Romeo, Samuel, Teresita, and Uriel against CTC prosper? Explain. (3%)
Do Romeo, Samuel, Teresita, and Uriel have a cause of action for damages against UTI? Explain. (3%)
What, if any, are the valid defenses that CTC and UTI can raise in the respective actions against them? Explain. (3%)

Under the Securities Regulation Code, what is the Margin Trading Rule? (2%)

-NOTHING FOLLOWS-

2009 Bar Questions - TAXATION

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

A law that allows taxes to be paid either in cash or in kind is valid.
When the financial position of the taxpayer demonstrates a clear inability to pay the tax, the Commissioner of Internal Revenue may validly compromise the tax liability.
The doctrine of equitable recoupment allows a taxpayer whose claim for refund has prescribed to offset tax liabilities with his claim of overpayment.
A law imposing a tax on income of religious institutions derived from the sale of religious articles is valid.
A false return and a fraudulent return are one and the same.

Enumerate the four (4) inherent limitations on taxation. Explain each item briefly. (4%)

III

Melissa inherited from her father a 300-square-meter lot. At the time of her father's death on March 14, 1995, the property was valued at P720,000.00. On February 28, 1996, to defray the cost of the medical expenses of her sick son, she sold the lot for P600,000.00, on cash basis. The prevailing market value of the property at the time of the sale was P3,000.00 per square meter.

Is Melissa liable to pay capital gains tax on the transaction? If so, how much and why? If not, why not? (4%)
Is Melissa liable to pay Value Added Tax (VAT) on the sale of the property? If so, how much and why? If not, why not? (4%)

International Technologies, Inc. (ITI) filed a claim for refund for unutilized input VAT with the Court of Tax Appeals (CTA). In the course of the trial, ITI engaged the services of an independent Certified Public Accountant (CPA) who examined the voluminous invoices and receipts of ITI. ITI offered in evidence only the summary prepared by the CPA, without the invoices and the receipts, and then submitted the case for decision.

Can the CTA grant ITI's claim for refund based only on the CPA's summary? Explain. (4%)

Jessie brought into the Philippines a foreign-made luxury car, and paid less than the actual taxes and duties due. Due to the discrepancy, the Bureau of Customs instituted seizure proceedings and issued a warrant of seizure and detention. The car, then parked inside a pay parking garage, was seized and brought by government agents to a government impounding facility. The Collector of Customs denied Jessie's request for the withdrawal of the warrant.

Aggrieved, Jessie filed against the Collector a criminal complaint for usurpation of judicial functions on the ground that only a judge may issue a warrant of search and seizure.

Resolve with reasons Jessie's criminal complaint. (4%)
Would your answer be the same if the luxury car was seized while parked inside the garage of Jessie's residence? Why or why not? (4%)

The Sangguniang Bayan of the Municipality of Sampaloc, Quezon, passed an ordinance imposing a storage fee of ten centavos (P0.10) for every 100 kilos of copra deposited in any bodega within the Municipality's jurisdiction. The Metropolitan Manufacturing Corporation (MMC), with principal office in Makati, is engaged in the manufacture of soap, edible oil, margarine, and other coconut oil-based products. It has a warehouse in Sampaloc, Quezon, used as storage space for the copra purchased in Sampaloc and nearby towns before the same is shipped to Makati. MMC goes to court to challenge the validity of the ordinance, demanding the refund of the storage fees it paid under protest.

Is the ordinance valid? Explain your answer. (4%)

VII

Kenya International Airlines (KIA) is a foreign corporation, organized under the laws of Kenya. It is not licensed to do business in the Philippines. Its commercial airplanes do not operate within Philippine territory, or service passengers embarking from Philippine airports. The firm is represented in the Philippines by its general agent, Philippine Airlines (PAL), a Philippine corporation.

KIA sells airplane tickets through PAL, and these tickets are serviced by KIA airplanes outside the Philippines. The total sales of airline tickets transacted by PAL for KIA in 1997 amounted to P2,968,156.00. The Commissioner of Internal Revenue assessed KIA deficiency income taxes at the rate of 35% on its taxable income, finding that KIA's airline ticket sales constituted income derived from sources within the Philippines.

KIA filed a protest on the ground that the P2,968,156.00 should be considered as income derived exclusively from sources outside the Philippines since KIA only serviced passengers outside Philippine territory.

Is the position of KIA tenable? Reasons. (4%)

VII

Is the position of KIA tenable? Reasons. (4%)

VIII

The City of Manila enacted Ordinance No. 55-66 which imposes a municipal occupation tax on persons practicing various professions in the city. Among those subjected to the occupation tax were lawyers. Atty. Mariano Batas, who has a law office in Manila, pays the ordinance-imposed occupation tax under protest. He goes to court to assail the validity of the ordinance for being discriminatory. Decide with reasons. (3%)

Republic Power Corporation (RPC) is a government-owned and controlled corporation engaged in the supply, generation and transmission of electric power. In 2005, in order to provide electricity to Southern Tagalog provinces, RPC entered into an agreement with Jethro Energy Corporation (JEC), for the lease of JEC's power barges which shall be berthed at the port of Batangas City. The contract provides that JEC shall own the power barges and the fixtures, fittings, machinery, and equipment therein, all of which JEC shall supply at its own cost, and that JEC shall operate, manage and maintain the power barges for the purpose of converting the fuel of RPC into electricity. The contract also stipulates that all real estate taxes and assessments, rates and other charges, in respect of the power barges, shall be for the account of RPC.

In 2007, JEC received an assessment of real property taxes on the power barges from the Assessor of Batangas City. JEC sought reconsideration of the assessment on the ground that the power barges are exempt from real estate taxes under Section 234 [c] of R.A. 7160 as they are actually, directly and exclusively used by RPC, a government-owned and controlled corporation. Furthermore, even assuming that the power barges are subject to real property tax, RPC should be held liable therefor, in accordance with the terms of the lease agreement. Is the contention of JEC correct? Explain your answer. (4%)

ABCD Corporation (ABCD) is a domestic corporation with individual and corporate shareholders who are residents of the United States. For the 2^nd quarter of 1983, these U.S.-based individual and corporate stockholders received cash dividends from the corporation. The corresponding withholding tax on dividend income --- 30% for individual and 35% for corporate non-resident stockholders --- was deducted at source and remitted to the BIR.

On May 15, 1984, ABCD filed with the Commissioner of Internal Revenue a formal claim for refund, alleging that under the RP-US Tax Treaty, the deduction withheld at source as tax on dividends earned was fixed at 25% of said income. Thus, ABCD asserted that it overpaid the withholding tax due on the cash dividends given to its non-resident stockholders in the U.S. The Commissioner denied the claim.

On January 17, 1985, ABCD filed a petition with the Court of Tax Appeals (CTA) reiterating its demand for refund.

Does ABCD Corporation have the legal personality to file the refund on behalf of its non-resident stockholders? Why or why not? (3%)
Is the contention of ABCD Corporation correct? Why or why not? (3%)

PART II

Raffy and Wena, husband and wife, are both employed by XXX Corporation. After office hours, they jointly manage a coffee shop at the ground floor of their house. The coffee shop is registered in the name of both spouses. Which of the following is the correct way to prepare their income tax return? Write the letter only. DO NOT EXPLAIN YOUR ANSWER. (2%)

Raffy will declare as his income the salaries of both spouses, while Wena will declare the income from the coffee shop.
Wena will declare the combined compensation income of the spouses, and Raffy will declare the income from the coffee shop.
All the income will be declared by Raffy alone, because only one consolidated return is required to be filed by the spouses.
Raffy will declare his own compensation income and Wena will declare hers. The income from the coffee shop shall be equally divided between them. Each spouse shall be taxed separately on their corresponding taxable income to be covered by one consolidated return for the spouses.
Raffy will declare his own compensation income and Wena will declare hers. The income from the coffee shop shall be equally divided between them. Raffy will file one income tax return to cover all the income of both spouses, and the tax is computed on the aggregate taxable income of the spouses.

XII

YYY Corporation engaged the services of the Manananggol Law Firm in 2006 to defend the corporation's title over a property used in the business. For the legal services rendered in 2007, the law firm billed the corporation only in 2008. The corporation duly paid.

YYY Corporation claimed this expense as a deduction from gross income in its 2008 return, because the exact amount of the expense was determined only in 2008. Is YYY's claim of deduction proper? Reasons. (4%)

XIII

In 1999, Xavier purchased from his friend, Yuri, a painting for P500,000.00. The fair market value (FMV) of the painting at the time of the purchase was P1-million. Yuri paid all the corresponding taxes on the transaction. In 2001, Xavier died. In his last will and testament, Xavier bequeathed the painting, already worth P1.5-million, to his only son, Zandro. The will also granted Zandro the power to appoint his wife, Wilma, as successor to the painting in the event of Zandro's death. Zandro died in 2007, and Wilma succeeded to the property.

Should the painting be included in the gross estate of Xavier in 2001 and thus, be subject to estate tax? Explain. (3%)
Should the painting be included in the gross estate of Zandro in 2007 and thus, be subject to estate tax? Explain. (3%)
May a vanishing deduction be allowed in either or both of the estates? Explain. (3%)

XIV

Emiliano Paupahan is engaged in the business of leasing out several residential apartment units he owns. The monthly rental for each unit ranges from P8,000.00 to P10,000.00. His gross rental income for one year is P1,650,000.00. He consults you on whether it is necessary for him to register as a VAT taxpayer. What legal advice will you give him, and why? (4%)

Miguel, a citizen and resident of Mexico, donated US$1,000.00 worth of stocks in Barack Motors Corporation, a Mexican company, to his legitimate son, Miguelito, who is residing in the Philippines and about to be married to a Filipino girlfriend. Mexico does not impose any transfer tax of whatever nature on all gratuitous transfers of property.

Is Miguel entitled to claim a dowry exclusion? Why or why not? (3%)
Is Miguel entitled to the rule of reciprocity in order to be exempt from the Philippine donor's tax? Why or why not? (3%)

XVI

Ernesto, a Filipino citizen and a practicing lawyer, filed his income tax return for 2007 claiming optional standard deductions. Realizing that he has enough documents to substantiate his profession-connected expenses, he now plans to file an amended income tax return for 2007, in order to claim itemized deductions, since no audit has been commenced by the BIR on the return he previously filed. Will Ernesto be allowed to amend his return? Why or why not? (4%)

XVII

A final assessment notice was issued by the BIR on June 13, 2000, and received by the taxpayer on June 15, 2000. The taxpayer protested the assessment on July 31, 2000. The protest was initially given due course, but was eventually denied by the Commissioner of Internal Revenue in a decision dated June 15, 2005. The taxpayer then filed a petition for review with the Court of Tax Appeals (CTA), but the CTA dismissed the same.

Is the CTA correct in dismissing the petition for review? Explain your answer. (4%)
Assume that the CTA's decision dismissing the petition for review has become final. May the Commissioner legally enforce collection of the delinquent tax? Explain. (4%)

XVIII

A taxpayer received an assessment notice from the BIR on February 3, 2009. The following day, he filed a protest, in the form of a request for reinvestigation, against the assessment and submitted all relevant documents in support of the protest. On September 11, 2009, the taxpayer, apprehensive because he had not yet received notice of a decision by the Commissioner on his protest, sought your advice.

What remedy or remedies are available to the taxpayer? Explain. (4%)

XIX

Johnny transferred a valuable 10-door commercial apartment to a designated trustee, Miriam, naming in the trust instrument Santino, Johnny's 10-year old son, as the sole beneficiary. The trustee is instructed to distribute the yearly rentals amounting to P720,000.00. The trustee consults you if she has to pay the annual income tax on the rentals received from the commercial apartment.

What advice will you give the trustee? Explain. (3%)
Will your advice be the same if the trustee is directed to accumulate the rental income and distribute the same only when the beneficiary reaches the age of majority? Why or why not? (3%)

Masarap Food Corporation (MFC) incurred substantial advertising expenses in order to protect its brand franchise for one of its line products. In its income tax return, MFC included the advertising expense as deduction from gross income, claiming it as an ordinary business expense. Is MFC correct? Explain. (3%)

-NOTHING FOLLOWS-