July 24, 1990 REVENUE MEMORANDUM ORDER NO.

35-90 Subject : Prescribing Additional Guidelines in the Issuance and Enforcement of Subpoena Duces Tecum To : All Internal Revenue Officers and Others concerned

I.

Background

Revenue Audit Memorandum Order No. 3-82 dated July 26, 1982 outlines the audit procedure to be followed in documenting non-cooperation of a taxpayer in respect to the production or presentation of his books of accounts and other accounting records for inspection, preparatory to the transfer of the case to the Legal Service for issuance of a subpoena and/or enforcement thereof by legal action. However, RAMO No. 3-82 fails to lay the guidelines for the actions to be taken subsequent to such transfer. aisa dc II. Objective

This Order seeks to define the sequential actions to be undertaken in the enforcement of the visitorial power vested upon this Bureau with respect to the books of accounts and other accounting records of a taxpayer as well as the power of the Commissioner of Internal Revenue to implement the provisions of Section 7 of the National Internal Revenue Code, as amended. III. Form

To achieve uniformity in the subpoenas hereinafter to be issued, there is hereby adopted a revised form to be known as BIR Form No. 1915 and captioned "SUBPOENA DUCES TECUM", IV. A. Guidelines and procedures Transfer of Case to Legal Service

After compliance with the audit procedures outlined in paragraph 2, subparagraphs 2.1 to 2.6 of RAMO No. 3-82, the revenue official concerned shall transfer the records of the case to the Prosecution Division or Legal Branch, as the case may be, under an appropriate covering communication recommending the issuance of a subpoena, clearly setting forth the following information: 1) The name(s) and address(es) of the individual(s) who has/have control or custody over the books of accounts and other accounting records to be examined;

2) A particular but concise description of such books, records to be examined; cdasia 3) B. The taxable year involved. Processing of Recommendations for Issuance of Subpoena

The Prosecution Division or Legal Branch concerned shall evaluate the recommendation for issuance of subpoena within two (2) working days from receipt and may take the following alternative actions: 1) Return the case to its origin for further documentation or action;

2) Prepare the corresponding subpoena in three copies for initial and/or signature of the officials concerned, the distribution of which shall be as follows: Original Duplicate to be served to the taxpayer attached to the docket of the case

under audit Triplicate C. action lawyer file

Signatories

For control and monitoring purposes, only the following revenue officials are hereby authorized to issue subpoenas, to wit: 1) a. 2) a. National Office Assistant Commissioner, Legal Service Regional Office Director, or in his absence, the

b.

Assistant Director

This does not however preclude the Commissioner and Deputy Commissioners to exercise their authority under the National Internal Revenue Code to issue subpoena in appropriate cases. D. 1) Service By Whom Served

Ideally, the service of the subpoena should be effected by the revenue officers assigned to investigate the case. However, such service may be made by any internal revenue officer authorized for the purpose. 2) How Service May Be Effected

a. The subpoena shall be served by handing the original copy thereof to the individual named therein in person, or, if he refuses to receive it, by tendering it to him witnessed by another revenue officer accompanying the server. b. If personal service can not be made, service may be effected by: acd

1) Leaving a copy of the subpoena at the taxpayer's dwelling place or residence with some person of suitable age and discretion then residing therein; or

2) Leaving the copy at taxpayer's office or regular place of business with some competent person in charge thereof.

3) In both situations, the leaving of the copy of the Subpoena with a competent person and or person of sufficient discretion should be witnessed by another revenue officer accompanying the server. 3) Proof of Service

Aside from accomplishing the bottom portion of the subpoena, the server shall make a written report setting forth the manner, place and date of service, the name of the person who received the same and such other relevant information. In case of constructive service, the personal relationship and/or official capacity, if any, of the person receiving should be indicated. V. Remedies to Enforce Compliance

Where the taxpayer fails, refuses or neglects to comply with the commands of the subpoena, he may be proceeded against by: A. Filing a criminal case for violation of Section 7, in relation to Sections 17 and 265 of the Tax Code, as amended; and/or casia B. Initiating proceedings for indirect contempt under Section 3(f), Rule 71 of the Revised Rules of Court. VI. Repealing Clause

All other orders or parts thereof, which are inconsistent herewith are hereby repealed or revoked accordingly.

VII.

Effectivity

This order shall take effect immediately. (Sgd.) JOSE U. ONG Commissioner of Internal Revenue C o p y r i g h t 2 0 0 2 C D T e c h n o l o g i e s A s i a, I n c.