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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
Rule 132, Section 40 of the Revised Rules on Evidence provides that if the documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.
In the case of Fortune Tobacco Corporation v. Commissioner of Internal Revenue, G.R. No. 192024, July 1, 2015, petitioner is the manufacturer/producer of various cigarette brands.
Prior to January 1, 1997, cigarette brands were subject to ad valorem tax pursuant to the Tax Code of 1977, as amended. However, on January 1, 1997, R.A. No. 8240 took effect causing a shift from the ad valorem tax system to the specific tax system. As a result of such shift, the cigarette brands were subjected to specific tax.
To implement the provisions for a 12% increase of excise tax on cigarettes packed by machines by January 1, 2000, the Secretary of Finance, upon recommendation of the Commissioner of Internal, issued Revenue Regulations No. 17-99.
On March 31, 2005, Petitioner filed a claim for tax credit or refund under section 229 of the National Internal Revenue Code of 1997 for erroneously or illegally collected specific taxes covering the period June to December 31, 2004 in the total amount of PhP219,566,450.00.
On November 14, 2005, petitioner filed a Petition for Review. CIR, in his Answer, raised, among others, as a Special and Affirmative Defense that the amount of PhP219,566,450.00 was not properly documented.
After the trial on the merits, the CTA Division ruled that there is insufficiency of evidence on the claim for refund. Petitioner filed a motion for reconsideration, which was denied. It elevated its claim to the CTA En Banc, but was rebuffed after the tax tribunal found no cause to reverse the findings and conclusions of the CTA Division.
The Supreme Court held that even if the Court should find fault in the ruling of the CTA Division in denying the admission of the petitioner’s evidence, the result would be the same because petitioner failed to offer any proof or tender of excluded evidence.
Section 40, Rule 132 of the Rules of Court provides:
Sec. 40. Tender of excluded evidence. – If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.
The rule is that evidence formally offered by a party may be admitted or excluded by the court. If a party’s offered documentary or object evidence is excluded, he may move or request that it be attached to form part of the records of the case.
If the excluded evidence is oral, he may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. These procedures are known as offer of proof of tender of excluded evidence and are made for purposes of appeal. If an adverse judgment is eventually rendered against the offeror, he may in his appeal assign as error the rejection of the excluded evidence.
It has been repeatedly ruled that where documentary evidence was rejected by the lower court and the offeror did not move that the same be attached to the record, the same cannot be considered by the appellate court, as documents forming no part of proofs before the appellate court cannot be considered in disposing the case. For the appellate court to consider as evidence, which was not offered by one party at all during the proceedings below, would infringe the constitutional right of the adverse party.
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