MINI-LMTS FOR REMEDIAL LAW BY ATTY. NBV
➢ The SC is not a trier of facts.
➢ Even if the court has original jurisdiction, it must
follow the hierarchy of courts.
➢ Courts do not acquire jurisdiction unless admin
remedies are exhausted.
➢ Rule 65 against a judgment is not available if no MR
was filed
➢ An accused may appear before the court for the sole
purpose of questioning its jurisdiction (ad cautelam).
➢ If the duty is discretionary, mandamus is not a remedy.
➢ If the case does not fall under small claims, but falls
under summary or regular procedure, the case shall
not be dismissed. Instead, the case shall be redocketed under the appropriate procedure.
➢ For evidence to be admissible, it must be competent
and relevant.
➢ If the plaintiff and counsel do not appear during
pretrial without valid cause, the case shall be
dismissed.
➢ If one's liberty is restrained due to some legal process,
privilege of writ of habeas corpus is not available.
➢ In order for the CTA en banc to take cognizance of an
appeal via a petition for review, a timely MOTION FOR
RECONSIDERATION OR NEW TRIAL must first be filed
with the CTA Division that issued the assailed decision
or resolution.
➢ BIR Audit Process:
➢ CTA may take cognizance of cases directly challenging
the CONSTITUTIONALITY OR VALIDITY of a tax law or
regulation or administrative issuance (revenue
orders, revenue memorandum circulars, rulings).
➢ CTA HAS UNDOUBTED JURISDICTION to pass upon the
constitutionality or validity of a tax law or regulation
when raised by the taxpayer as a defense in disputing
or contesting an assessment or claiming a refund.
➢ The validity of the assessment itself is a separate and
distinct issue from the issue of whether the right of
the CIR to collect the validly assessed tax has
prescribed.
➢ An INVALID WAIVER could not extend the prescriptive
period and will render the assessment invalid.
➢ The BOND REQUIREMENT SHOULD BE DISPENSED
WITH if: (a)prescription has set, or (b)whenever it is
determined by the courts that the method employed by
the CIR in the collection of tax is not sanctioned by law.
➢ The failure of the BIR to subject the taxpayer to
DISCUSSION OF DISCREPANCY during audit shall
render the assessment void due to violation of the
taxpayer’s right to due process.
➢ The SENDING OF PAN to a taxpayer to inform him/her
of the assessment is part of the “due process
requirement in the issuance of a deficiency tax
assessment,” the absence of which renders void any
assessment made by the tax authorities.
➢ The failure to protest the PAN (within 15 days from
receipt) does not make the assessment final and
unappealable. Such failure will only result to the
immediate issuance of the FAN, which can be later on
protested by the taxpayer.
➢ If there is NO RESPONSE FROM THE BIR within 180
days after the TP filed the protest (Request for
Reconsideration) or submitted supporting documents
(Request for Reinvestigation), the TP may: (a)APPEAL
to the CTA w/in 30 days; OR (b)AWAIT the FDDA.
➢ FAILURE OF A TP TO APPEAL BEFORE THE CTA THE
INACTION of the CIR on a protested assessment w/in
30D after the 180D period does not render an
assessment final & executory. The TP may await the
final decision of the CIR &, w/in 30D from receipt of the
decision, appeal to CTA.
➢ FAN must show in detail the (1) facts, and (2) law,
rules, & regulations, or jurisprudence. Otherwise,
assessment is void.
➢ TP must respond within 30 days from receipt of the
FAN.
➢ Failure to protest or submit the supporting documents
shall render the FAN final.
➢ The test of the information’s sufficiency is whether the
crime is described in intelligible terms and with such
particularity with reasonable certainty so that the
accused is duly informed of the offense charged.
(Miguel vs. Sandiganbayan)
➢ The criminal action for BP 22 shall be deemed to
include the corresponding civil action. NO
RESERVATION TO FILE SUCH CIVIL ACTION
SEPARATELY SHALL BE ALLOWED.
➢ The People is the real party in interest in a criminal
case and only the OSG can represent the People in
criminal proceedings pending in the CA or in the
Supreme Court. (Jimenez vs. Sorongon)
➢ No counterclaim, cross claim, or third-party complaint
may be filed by the accused in the criminal case, but
any cause of action which could have been the subject
thereof may be litigated in a separate civil action.
➢ The accused can file a civil action for quasi-delict for
the same act or omission he is accused of in a criminal
case. (Casupnan vs. Laroya)
➢ Without arraignment, the court does not acquire
jurisdiction over the issues & the case. Any judgment
w/out arraignment, is void.
➢ The presence of the accused in arraignment is
mandatory. Without the accused, there can be no valid
arraignment.
➢ In case of an invalid arraignment, double jeopardy will
not apply.
➢ There are three (3) grounds for suspension of
arraignment: (1) mental or physical condition of the
accused, (2) prejudicial question, and (3) there is a
petition for review pending with the Secretary of
Justice or Office of the President.
➢ A judgement, to be valid, must be personally written
and prepared by an incumbent judge.
➢ Provisional remedies are also applicable in criminal
cases with regard to the civil aspect of the case
instituted with it. No civil aspect, no provisional
remedies available.
➢ An answer may be responded to by a reply only if the
defending party attaches an actionable document to
the answer (Rule 6, Section 2)
➢ Pre-trial is mandatory in all civil cases.
➢ When issues not raised by the pleadings are tried
either with the express or implied consent of the
parties, they shall be treated in all respects as if they
had been raised in the pleadings. No amendment of
the said pleadings is necessary. (Rule 10, Section 5)
➢ The failure of the plaintiff and counsel to appear at the
court-annexed mediation and judicial dispute
resolution without valid cause is cause for the
dismissal of the action with prejudice, unless
otherwise ordered by the court.
➢ An order denying a demurrer in civil cases is not
subject of an appeal or petition for certiorari,
prohibition or mandamus before judgement. However,
the judgement itself is subject to the aforesaid
remedies.
➢ The winning party has 5 years from entry of judgement
to execute a writ of execution. After the lapse of the 5year period, the same may only be revived by an action
for another 5 years or before it is barred by statute of
limitations.
➢ An adverse claim protects the right of the claimant
during the pendency of the controversy while a notice
of lis pendens protects the right of the claimant during
the pendency of the action or litigation.
➢ An adverse claim may only be cancelled upon filing a
petition before the court while a notice of lis pendens
may be cancelled without a court hearing.
➢ A xerox copy of a will (if lost or destroyed) may be
admitted to probate.