CTA judge, not Shell, should answer motion to inhibit - BOC

MANILA, Philippines - Bureau of Customs (BOC) Commissioner Napoleon Morales said yesterday that it is Court of Tax Appeals (CTA) Presiding Judge Ernesto Acosta, and not Pilipinas Shell Petroleum Corp., who should respond to the question of whether he should inhibit himself from the case involving the government and Shell.

Morales said that Acosta must inhibit himself from deciding the case because he never disclosed the fact that he worked as fiscal services assistant for Shell from 1975 to 1981.

The BOC wants Shell to pay P7.34 billion in unpaid excise taxes and VAT on its unleaded gas importations from 2004 to 2009. Bureau of Internal Revenue (BIR) Commissioner Joel Tan-Torres upheld the position of the BOC in a Dec. 15, 2009 ruling.

Last April 13, Shell said it would move to have BOC officials and Secretary Narciso Santiago Jr., presidential adviser on revenue enhancement, declared in contempt for holding a press conference in connection with the CTA case.

Shell lawyer John Balisnomo said the BOC has no cause for Acosta’s disqualification from the case since Shell’s relationship with him ended almost 30 years ago.

Morales, however, questioned why Shell is coming to Acosta’s defense, when the motion to inhibit is directed to Acosta and not to Shell.

“The question of whether or not Acosta should inhibit himself from the case is directed at him, not to Shell,” Morales said.

Santiago said the New Code of Judicial Conduct for the Philippine Judiciary, which took effect in 2004, mandates that judges disqualify themselves from participation in any proceedings in which it may appear to a reasonable observer that they are unable to decide the matter impartially.

“It is not the viewpoint of Shell that is important, but the viewpoint of a reasonable observer. It is logical for a reasonable observer to assume that a judge who was previously employed by a party to a case before him would not be able to decide the case with utmost impartiality,” he said.

Morales said Acosta should have disclosed the fact that he was previously employed by Shell.

“Under the rules of judicial ethics, if based on that disclosure, the parties and the lawyers all agree in writing that the reason for the inhibition of the judge is immaterial or insubstantial, the judge may then participate in the proceeding and the agreement of the parties and the lawyers shall be incorporated in the record of the proceedings,” Morales explained. “However, the fact of previous employment was never disclosed by the justice himself,” he added.

Tan-Torres added that there was nothing contemptuous in the statements made during the government’s press conference.

“What we wanted to do was to safeguard the interests of the government, and avoid any impartiality in the case,” Tan-Torres said. “We never questioned the integrity of the Court of Tax Appeals.”