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2010 BAR EXAMINATIONS


LEGAL ETHICS AND PRACTICAL EXERCISES


26 September 2010 2 P.M. – 5 P.M.

PART I
I
Prepare the following:
A. Verification and Certification against Forum Shopping. (5%)
B. Petition for Letters Rogatory. (5%)


II
Enumerate the instances when a Notary Public may authenticate documents without requiring the physical presence of the signatories. (2%)


III
Atty. Y, in his Motion for Reconsideration of the Decision rendered by the National Labor Relations Commission (NLRC), alleged that there was connivance of the NLRC Commissioners with Atty. X for monetary considerations in arriving at the questioned Decision. He insulted the Commissioners for their
ineptness in appreciating the facts as borne by the evidence presented.
Atty. X files an administrative complaint against Atty. Y for using abusive language.
Atty. Y posits that as lawyer for the down-trodden laborers, he is entitled to express his righteous anger against the Commissioners for having cheated them; that his allegations in the Motion for Reconsideration are absolutely privileged; and that proscription against the use of abusive language does not cover pleadings filed with the NLRC, as it is not a court, nor are any of its Commissioners Justices or Judges.
Is Atty. Y administratively liable under the Code of Professional Responsibility? Explain. (3%)


IV
Atty. XX rented a house of his cousin JJ on a month-to month basis. He left for a 6-month study in Japan without paying his rentals and electric bills while he was away despite JJ’s repeated demands.
Upon his return to the Philippines, Atty. XX still failed to settle his rental arrearages and electric bills, drawing JJ to file an administrative complaint against Atty. XX. Atty. XX contended that his non-payment of rentals and bills to his cousin is a personal matter which has no bearing on his profession as a lawyer and, therefore, he did not violate the Code of Professional Responsibility.


A. Is Atty. XX’s contention in order? Explain. (3%)
B. Cite two (2) specific Rules in the Code of Professional Responsibility, violation of which subjects a lawyer to disciplinary action by the Supreme Court although the acts complained of are purely personal or private activities that do not involve the practice of law. (2%)


V
When is professional incompetence a ground for disbarment under the Rules of Court? Explain. (3%)


VI
Atty. Monica Santos-Cruz registered the firm name “Santos- Cruz Law Office” with the Department of Trade and Industry as a single proprietorship. In her stationery, she printed the names of her husband and a friend who are both non-lawyers as her senior partners in light of their investments in the firm. She allowed her husband to give out calling cards bearing his name as senior partner of the firm and to appear in courts to move for postponements.
Did Atty. Santos-Cruz violate the Code of Professional Responsibility? Why? (3%)


VII
Atty. Candido commented in a newspaper that the decision of the Court of Appeals was influenced by a powerful relative of the prevailing party. The appellate court found him guilty of indirect contempt. Does this involve moral turpitude? Explain. (3%)


VIII
For services to be rendered by Atty. Delmonico as counsel for Wag Yu in a case involving 5,000 square meters (sq.m.) of land, the two agreed on a success fee of P50,000 plus 500 sq.m. of the land.
The trial court rendered judgment in favor of Wag Yu which became final and executory. After receiving P50,000, Atty. Delmonico demanded the transfer to him of the promised 500 sq.m. Instead of  complying, Wag Yu filed an administrative complaint charging Atty. Delmonico with violation of the Code of Professional Responsibility and Article 1491(5) of the Civil Code for demanding the delivery of a portion of the land subject of litigation.
Is Atty. Delmonico liable under the Code of Professional Responsibility and the Civil Code? Explain. (5%)


IX
Is the defense of Atty. R in a disbarment complaint for immorality filed by his paramour P that P is in pari delicto material or a ground for exoneration? Explain. (3%)


X
Allison hired Atty. X as his counsel in his complaint for Collection of Sum of Money. Upon receipt on March 20, 2009 of the Notice of Pre-Trial which was scheduled on May 24, 2009, Allison noted that at that time he would still be in a two-week Legal Ethics & Practical Exercises conference in St. Petersburg. He thus asked Atty. X to represent him during the pre-trial.
Prepare the necessary document that Atty. X should submit to the court to enable him to represent Allison during Pre-Trial. (5%)


XI
After passing the Philippine Bar in 1986, Atty. Richards practiced law until 1996 when he migrated to Australia where he subsequently became an Australian citizen in 2000. As he kept abreast of legal developments, petitioner learned about the Citizenship Retention and Re-Acquisition Act of 2003 (Republic Act No. 9225), pursuant to which he reacquired his Philippine citizenship in 2006. He took his oath of allegiance as a Filipino citizen at the Philippine embassy in Canberra, Australia. Jaded by the laid back life in the outback, he returned to the Philippines in December 2008. After the holidays, he established his own law office and resumed his practice of law. Months later, a concerned woman who had secured copies of Atty. Richards’ naturalization papers with consular authentication, filed with the Supreme Court an anonymous complaint against him for illegal practice of law.


A. May the Supreme Court act upon the complaint filed by an anonymous person? Why or why not? (3%)
B. Is respondent entitled to resume the practice of law? Explain. (5%)


PART II
XII
Rebecca’s complaint was raffled to the sala of Judge A. Rebecca is a daughter of Judge A’s wife by a previous marriage. This is known to the defendant who does not, however, file a motion to inhibit the Judge. Is the Judge justified in not inhibiting himself from the case? (3%)


XIII
Reacting to newspaper articles and verbal complaints on alleged rampant sale of Temporary Restraining Orders by Judge X, the Supreme Court ordered the conduct of a discreet investigation by the Office of the Court Administrator. Judges in the place where Judge X is assigned confirmed the complaints.


A. What administrative charge/s may be leveled against Judge X? Explain. (3%)
B. What defense/s can Judge X raise in avoidance of any liability? (2%)


XIV
Farida engaged the services of Atty. Garudo to represent her in a complaint for damages. The two agreed that all expenses incurred in connection with the case would first be shouldered by Atty. Garudo and he would be paid for his legal services and reimbursed for all expenses which he had advanced out of whatever Farida may receive upon the termination of the case. What kind of contract is this? (2%)


XV
Rico, an amiable, sociable lawyer, owns a share in Marina Golf Club, easily one of the more posh golf courses. He relishes hosting parties for government officials and members of the bench. One day, he had a chance meeting with a judge in the Intramuros golf course. The two readily got along well and had since been regularly playing golf together at the Marina Golf Club.


A. If Atty. Rico does not discuss cases with members of the bench during parties and golf games, is he violating the Code of Professional Responsibility? Explain. (3%)
B. How about the members of the bench who grace the parties of Rico, are they violating the Code of Judicial Conduct? Explain. (3%)



XVI
Judge L is assigned in Turtle Province. His brother ran for Governor in Rabbit Province. During the election period this year, Judge L took a leave of absence to help his brother conceptualize the campaign strategy. He even contributed a modest amount to the campaign kitty and hosted lunches and dinners. Did Judge L incur administrative and/or criminal liability? Explain. (3%)


XVII
Judge X was invited to be a guest speaker during the annual convention of a private organization which was covered by media. Since he was given the liberty to speak on any topic, he discussed the recent decision of the Supreme Court declaring that the President is not, under the Constitution, proscribed from appointing a Chief Justice within two months before the election. In his speech, the judge demurred to the Supreme Court decision and even stressed that the decision is a serious violation of
the Constitution.


A. Did Judge X incur any administrative liability? Explain. (3%)
B. If instead of ventilating his opinion before the private organization, Judge X incorporated it, as an obiter dictum, in one of his decisions, did he incur any administrative liability? Explain. (3%)


XVIII
A. Draft the accusatory portion of an Information for RAPE of a 13-year old child committed by her maternal uncle in broad daylight at the back of a church. (5%)
B. Draft a Petition for the Issuance of a Writ of Habeas Data. (5%)
C. Draft a Petition for Bail. (5%)


XIX
Judges of the first and second level courts are allowed to receive assistance from the local government units where they are stationed. The assistance could be in the form of equipment or allowance.
Justices at the Court of Appeals in the regional stations in the Visayas and Mindanao are not necessarily residents there, hence, they incur additional expenses for their accommodations. Pass on the propriety of the Justices’ receipt of assistance/allowance from the local governments. (3%)


XX
Arabella filed a complaint for disbarment against her estranged husband Atty. P on the ground of immorality and use of illegal drugs.
After Arabella presented evidence and rested her case before the Investigating Commissioner of the IBP Committee on Bar Discipline, she filed an Affidavit of Desistance and motion to dismiss the complaint, she and her husband having reconciled for the sake of their children. You are the Investigating Commissioner of the IBP. Bearing in mind that the family is a social institution which the State is duty-bound to preserve, what will be your action on Arabella’s motion to dismiss the complaint? (3%)


XXI
On the proposal of Judge G, which was accepted, he and his family donated a lot to the city of Gyoza on the condition that a public transport terminal would be constructed thereon. The donation was accepted and the condition was complied with. The family-owned tracts of land in the vicinity of the donated lot suddenly appreciated in value and became commercially viable as in fact a restaurant and a hotel were soon after built. Did the Judge commit any violation of the Code of Judicial Conduct? (2%)


XXII
A retired member of the Judiciary is now engaged in private practice. In attending hearings, he uses his car bearing his protocol plate which was issued to him while still in the service. Pass on the ethical aspect of the judge’s use of the protocol plate. (2%)
- NOTHING FOLLOWS -

2010 BAR EXAMINATIONS


REMEDIAL LAW


26 September 2010 8 A.M. - 12 NN.

PART I
I
On March 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio. To prove the qualifying circumstance of evident premeditation, the prosecution introduced on December 11, 2009 a text message, which Mabini’s estranged wife Gregoria had sent to Emilio on the eve of his death, reading: “Honey, pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg ingat u bka ma tsugi k.”

A. A subpoena ad testificandum was served on Gregoria for her to be presented for the purpose of identifying her cellphone and the text message. Mabini objected to her presentation on the ground of marital privilege. Resolve. (3%)
B. Suppose Mabini’s objection in question A was sustained. The prosecution thereupon announced that it would be presenting Emilio’s wife Graciana to identify Emilio’s cellphone bearing Gregoria’s text message. Mabini objected again. Rule on the objection. (2%)
C. If Mabini’s objection in question B was overruled, can he object to the presentation of the text message on the ground that it is hearsay? (2%)
D. Suppose that shortly before he expired, Emilio was able to send a text message to his wife Graciana reading “Nasaksak ako. D na me makahinga. Si Mabini ang may gawa ni2.” Is this text message admissible as a dying declaration? Explain. (3%)


II
On August 13, 2008, A, as shipper and consignee, loaded on the M/V Atlantis in Legaspi City 100,000 pieces of century eggs. The shipment arrived in Manila totally damaged on August 14, 2008. A filed before the Metropolitan Trial Court (MeTC) of Manila a complaint against B Super Lines, Inc. (B Lines), owner of the M/V Atlantis, for recovery of damages amounting to P167,899. He attached to the complaint the Bill of Lading.


A. B Lines filed a Motion to Dismiss upon the ground that the Regional Trial Court has exclusive original jurisdiction over “all actions in admiralty and maritime” claims. In his Reply, A contended that while the action is indeed “admiralty and maritime” in nature, it is the amount of the claim, not the nature of the action, that governs jurisdiction. Pass on the Motion to Dismiss. (3%)
B. The MeTC denied the Motion in question A. B Lines thus filed an Answer raising the defense that under the Bill of Lading it issued to A, its liability was limited to P10,000. At the pre-trial conference, B Lines defined as one of the issues whether the stipulation limiting its liability to P10,000 binds A. A countered that this was no longer in issue as B Lines had failed to deny under oath the Bill of Lading. Which of the parties is correct? Explain. (3%)
C. On July 21, 2009, B Lines served on A a “Notice to Take Deposition,” setting the deposition on July 29, 2009 at 8:30 a.m. at the office of its counsel in Makati. A failed to appear at the deposition-taking, despite notice. As counsel for B Lines, how would you proceed? (3%)



III
Anabel filed a complaint against B for unlawful detainer before the Municipal Trial Court (MTC) of Candaba, Pampanga. After the issues had been joined, the MTC dismissed the complaint for lack of jurisdiction after noting that the action was one for accion publiciana.
Anabel appealed the dismissal to the RTC which affirmed it and accordingly dismissed her appeal. She elevates the case to the Court of Appeals, which remands the case to the RTC. Is the appellate court correct? Explain. (3%)


IV
X was driving the dump truck of Y along Cattleya Street in Sta. Maria, Bulacan. Due to his negligence, X hit and injured V who was crossing the street. Lawyer L, who witnessed the incident, offered his legal services to V. V, who suffered physical injuries including a fractured wrist bone, underwent surgery to screw a metal plate to his wrist bone. On complaint of V, a criminal case for Reckless Imprudence Resulting in Serious Physical Injuries was filed against X before the Municipal Trial Court (MTC) of Sta. Maria. Atty. L, the private prosecutor, did not reserve the filing of a separate civil action.
V subsequently filed a complaint for Damages against X and Y before the Regional Trial Court of Pangasinan in Urdaneta where he resides. In his “Certification Against Forum Shopping,” V made no mention of the pendency of the criminal case in Sta. Maria.


A. Is V guilty of forum shopping? (2%)

B. Instead of filing an Answer, X and Y move to dismiss the complaint for damages on the ground of litis pendentia. Is the motion meritorious? Explain. (2%)
C. Suppose only X was named as defendant in the complaint for damages, may he move for the dismissal of the complaint for failure of V to implead Y as an indispensable party? (2%)
D. X moved for the suspension of the proceedings in the criminal case to await the decision in the civil case. For his part, Y moved for the suspension of the civil case to await the decision in the criminal case. Which of them is correct? Explain. (2%)
E. Atty. L offered in the criminal case his affidavit respecting what he witnessed during the incident. X’s lawyer wanted to cross-examine Atty. L who, however, objected on the ground of lawyer-client privilege. Rule on the objection. (2%)


V
Charisse, alleging that she was a resident of Lapu-Lapu City, filed a complaint for damages against Atlanta Bank before the RTC of Lapu-Lapu City, following the dishonor of a check she drew in favor of Shirley against her current account which she maintained in the bank’s local branch.
The bank filed a Motion to Dismiss the complaint on the ground that it failed to state a cause of action, but it was denied. It thus filed an Answer.


A. In the course of the trial, Charisse admitted that she was a US citizen residing in Los Angeles, California and that she was temporarily billeted at the Pescado Hotel in Lapu-Lapu City, drawing the bank to file another motion to dismiss, this time on the ground of improper venue, since Charisse is not a resident of Lapu-Lapu City.

Charisse opposed the motion citing the “omnibus motion rule.” Rule on the motion. (3%)
B. Suppose Charisse did not raise the “omnibus motion rule,” can the judge proceed to resolve the motion to dismiss? Explain. (3%)
C. Suppose the judge correctly denied the second motion to dismiss and rendered judgment in favor of Charisse, ordering the bank to pay her P100,000 in damages plus legal interest. The judgment became final and executory in 2008. To date, Charisse has not moved to execute the judgment. The bank
is concerned that its liability will increase with the delay because of the interest on the judgment award.
As counsel of the bank, what move should you take? (3%)


VI
Antique dealer Mercedes borrowed P1,000,000 from antique collector Benjamin. Mercedes issued a postdated check in the same amount to Benjamin to cover the debt.
On the due date of the check, Benjamin deposited it but it was dishonored. As despite demands, Mercedes failed to make good the check, Benjamin filed in January 2009 a complaint for collection of sum of money before the RTC of Davao. Mercedes filed in February 2009 her Answer with
Counterclaim, alleging that before the filing of the case, she and Benjamin had entered into a dacion en pago agreement in which her vintage P1,000,000 Rolex watch which was taken by Benjamin for sale on commission was applied to settle her indebtedness; and that she incurred expenses in defending what she termed a “frivolous lawsuit.” She accordingly prayed for P50,000 damages.


A. Benjamin soon after moved for the dismissal of the case. The trial court accordingly dismissed the complaint. And it also dismissed the Counterclaim. Mercedes moved for a reconsideration of the dismissal of the Counterclaim. Pass upon Mercedes’ motion. (3%)
B. Suppose there was no Counterclaim and Benjamin’s complaint was not dismissed, and judgment was rendered against Mercedes for P1,000,000. The judgment became final and executory and a writ of execution was correspondingly issued.
Since Mercedes did not have cash to settle the judgment debt, she offered her Toyota Camry model 2008 valued at P1.2 million. The Sheriff, however, on request of Benjamin, seized Mercedes’ 17th century ivory image of the La Sagrada Familia estimated to be worth over P1,000,000. Was the Sheriff’s action in order? (3%)


VII
As Cicero was walking down a dark alley one midnight, he saw an “owner-type jeepney” approaching him. Sensing that the occupants of the vehicle were up to no good, he darted into a corner and ran. The occupants of the vehicle − elements from the Western Police District − gave chase and apprehended him.
The police apprehended Cicero, frisked him and found a sachet of 0.09 gram of shabu tucked in his waist and a Swiss knife in his secret pocket, and detained him thereafter. Is the arrest and body-search legal? (3%)
- END OF PART I -


PART II


VIII
Dominique was accused of committing a violation of the Human Security Act. He was detained  incommunicado, deprived of sleep, and subjected to water torture. He later allegedly confessed his guilt via an affidavit. After trial, he was acquitted on the ground that his confession was obtained through torture, hence, inadmissible as evidence. In a subsequent criminal case for torture against those who
deprived him of sleep and subjected him to water torture, Dominique was asked to testify and to, among other things, identify his above-said affidavit of confession. As he was about to identify the affidavit, the defense counsel objected on the ground that the affidavit is a fruit of a poisonous tree. Can the objection be sustained? Explain. (3%)


IX
In a prosecution for rape, the defense relied on Deoxyribonucleic Acid (DNA) evidence showing that the semen found in the private part of the victim was not identical with that of the accused’s. As private prosecutor, how will you dispute the veracity and accuracy of the results of the DNA evidence? (3%)


X
Marinella is a junior officer of the Armed Forces of the Philippines who claims to have personally witnessed the malversation of funds given by US authorities in connection with the Balikatan exercises.

Marinella alleges that as a result of her exposé, there are operatives within the military who are out to kill her. She files a petition for the issuance of a writ of amparo against, among others, the Chief of Staff but without alleging that the latter ordered that she be killed.
Atty. Daro, counsel for the Chief of Staff, moves for the dismissal of the Petition for failure to allege that his client issued any order to kill or harm Marinella. Rule on Atty. Daro’s motion. Explain. (3%)


XI
X was arrested for the alleged murder of a 6-year old lad. He was read his Miranda rights immediately upon being apprehended. In the course of his detention, X was subjected to three hours of non-stop interrogation. He remained quiet until, on the 3rd hour, he answered “yes” to the question of whether “he prayed for forgiveness for shooting down the boy.” The trial court, interpreting X’s answer as an admission of guilt, convicted him. On appeal, X’s counsel faulted the trial court in its interpretation of his client’s answer, arguing that X invoked his Miranda rights when he remained quiet for the first two hours of questioning. Rule on the assignment of error. (3%)


XII
In a prosecution for murder, the prosecutor asks accused Darwin if he had been previously arrested for violation of the Anti- Graft and Corrupt Practices Act. As defense counsel, you object. The trial court asks you on what ground/s. Respond. (3%)


XIII
Policemen brought Lorenzo to the Philippine General Hospital (PGH) and requested one of its surgeons to immediately perform surgery on him to retrieve a packet of 10 grams of shabu which they alleged was swallowed by Lorenzo. Suppose the PGH agreed to, and did perform the surgery, is the package of shabu admissible in evidence? Explain. (3%)


XIV
Czarina died single. She left all her properties by will to her  friend Duqueza. In the will, Czarina stated that she did not recognize Marco as an adopted son because of his disrespectful conduct towards her.
Duqueza soon instituted an action for probate of Czarina’s will. Marco, on the other hand, instituted intestate proceedings.
Both actions were consolidated before the RTC of Pasig. On motion of Marco, Duqueza’s petition was ordered dismissed on the ground that the will is void for depriving him of his legitime. Argue for Duqueza. (5%)


XV
Pedrillo, a Fil-Am permanent resident of Los Angeles, California at the time of his death, bequeathed to Winston a sum of money to purchase an annuity. Upon Pedrillo’s demise, his will was duly probated in Los Angeles and the specified sum in the will was in fact used to purchase an annuity with XYZ of Hong Kong so that Winston would receive the equivalent of US$1,000 per month for the next 15 years.

Wanting to receive the principal amount of the annuity, Winston files for the probate of Pedrillo’s will in the Makati RTC. As prayed for, the court names Winston as administrator of the estate.
Winston now files in the Makati RTC a motion to compel XYZ to account for all sums in its possession forming part of Pedrillo’s estate. Rule on the motion. (5%)


XVI
Sal Mineo died intestate, leaving a P1 billion estate. He was survived by his wife Dayanara and their five children. Dayanara filed a petition for the issuance of letters of administration. Charlene, one of the children, filed an opposition to the petition, alleging that there was neither an allegation nor genuine effort to settle the estate amicably before the filing of the petition. Rule on the opposition. (5%)


XVII
What is “res judicata in prison grey”? (2%)


XVIII
While window-shopping at the mall on August 4, 2008, Dante lost his organizer including his credit card and billing statement. Two days later, upon reporting the matter to the credit card company, he learned that a one-way airplane ticket was purchased online using his credit card for a flight to Milan in mid- August 2008. Upon extensive inquiry with the airline company, Dante discovered that the plane ticket was under the name of one Dina Meril. Dante approaches you for legal advice.


A. What is the proper procedure to prevent Dina from leaving the Philippines? (2%)
B. Suppose an Information is filed against Dina on August 12, 2008 and she is immediately arrested. What pieces of electronic evidence will Dante have to secure in order to prove the fraudulent online transaction? (2%)


XIX
1. Enumerate the requisites of a “trial in absentia” (2%) and a “promulgation of judgment in absentia” (2%).
2. Name two instances where the trial court can hold the accused civilly liable even if he is acquitted. (2%)


XX
Azenith, the cashier of Temptation Investments, Inc. (Temptation, Inc.) with principal offices in Cebu City, is equally hated and loved by her co-employees because she extends cash advances or “vales” to her colleagues whom she likes. One morning, Azenith discovers an anonymous letter inserted under the
door of her office threatening to kill her.
Azenith promptly reports the matter to her superior Joshua, who thereupon conducts an internal investigation to verify the said threat.
Claiming that the threat is real, Temptation, Inc. opts to transfer Azenith to its Palawan Office, a move she resists in view of the company’s refusal to disclose the results of its investigation.


Decrying the move as a virtual deprivation of her employment, Azenith files a petition for the issuance of a writ of habeas data before the Regional Trial Court (RTC) to enjoin Temptation, Inc. from transferring her on the ground that the company’s refusal to provide her with a copy of the investigation
results compromises her right to life, liberty and privacy. Resolve the petition. Explain. (5%)
- NOTHING FOLLOWS -

2010 BAR EXAMINATIONS


MERCANTILE LAW



I
Briefly describe the following types of banks: (2% each)
A. universal bank
B. commercial bank
C. thrift bank
D. rural bank
E. cooperative bank


II
A. How do you characterize the legal relationship between a commercial bank and its safety deposit box client? (2%)
B. Is a stipulation in the contract for the use of a safety deposit box relieving the bank of liability in connection with the use thereof valid? (2%)
C. Differentiate “bank deposits” from “deposit substitutes.” (2%)
D. Why are banks required to maintain reserves against their deposits and deposit substitutes? State one of three purposes for these reserves. (2%)


III
Ozamis Paper Corporation secured loans from ABC Universal Bank in the aggregate principal amount of P100 million, evidenced by several promissory notes, and secured by a continuing guaranty of its principal stockholder Menandro Marquez; a pledge of Marquez’s shares in the corporation valued Mercantile Law Page 3 of 11 at P45 million; and a real estate mortgage over certain parcels of land owned by Marquez. The corporation defaulted and the bank extra-judicially foreclosed on the real estate mortgage. The bank, which was the sole bidder for P75 million, won the award.
A. Can the bank sue Marquez for the deficiency of P25 million? Explain. (2%)
B. If the bank opts to file an action for collection against the corporation, can it afterwards institute a real action to foreclose the mortgage? Explain. (2%)
C. Can the bank foreclose on the pledged shares of Marquez and recover the deficiency from the corporation? Explain. (2%)


IV
Andante Realty, a marketing company that promotes and facilitates sales of real property through leverage marketing, solicits investors who are required to be a Business Center Owner (BCO) by paying an enrollment fee of $250. The BCO is then entitled to recruit two other investors who pay $250 each. The
BCO receives $90 from the $250 paid by each of his recruits and is credited a certain amount for payments made by investors through the initial efforts of his Business Center. Once the accumulated amount reaches $5,000, the same is used as down payment for the real property chosen by the BCO. A. Does this multi-level marketing scheme constitute an “investment contract” under the Securities Regulation Code? Define an “investment contract.” (2%)
B. What procedure must be followed under the Securities Regulation Code to authorize the sale or offer for sale or distribution of an investment contract?

C. What are the legal consequences of failure to follow this procedure? (2%)


V
Venezia is a famous international fashion chain with outlets in Makati, Ortigas, and Manila. It has complied with the minimum capitalization required under the Retail Trade Nationalization Act and carries on retail business worth more than $3 million for each of its outlets. As its Manila outlet is not doing
very well, it decides to sell all of its business there consisting of remaining inventory, furniture and fixtures and other assets to its competitor.
A. Venezia’s Manila outlet constitutes one-third (1/3) of its total business. Should it comply with the requirements of the Bulk Sales Law? Why or why not? (2%)
B. If instead of selling its Manila outlet, Venezia merely mortgages its assets there, would it need to comply with the requirements of the Bulk Sales Law? (2%)
C. What are the legal consequences of a failure to comply with the requirements of the Bulk Sales Law? (2%)


VI
A. What contractual stipulations are required in all technology transfer agreements? (2%)
B. Enumerate three (3) stipulations that are prohibited in technology transfer agreements. (3%)
C. Can an article of commerce serve as a trademark and at the same time enjoy patent and copyright protection? Explain and give an example. (2%)


VII
Union Mines, Inc. has total assets of P60 million with 210 stockholders holding at least 100 shares each. The company has two principal stockholders, ABC which owns 60% of the shares of stock, and XYZ which owns 17%. ABC in turn is owned to the extent of 21.31% by Acme, Inc.; 29.69% by Golden Boy, Inc.; 9% by XYZ; and the rest by individual stockholders. None of the parties is a publicly-listed company. XYZ now proposes to buy Acme’s and Golden Boy’s shares in ABC, which would give it direct control of ABC and indirect control of Union Mines. Is the proposed acquisition by XYZ subject to the mandatory
tender offer rule? Why or why not? What is a tender offer and when is it mandatory? (5%)


VIII
Marlon deposited with LYRIC Bank a money market placement of P1 million for a term of 31 days. On maturity date, one claiming to be Marlon called up the LYRIC Bank account officer and instructed him to give the manager’s check representing the proceeds of the money market placement to Marlon’s girlfriend Ingrid. The check, which bore the forged signature of Marlon, was deposited in Ingrid’s account with YAMAHA Bank. YAMAHA Bank stamped a guaranty on the check reading: “All prior endorsements and/or lack of endorsement guaranteed.” Upon presentment of the check, LYRIC Bank funds the
check. Days later, Marlon goes to LYRIC Bank to collect his money market placement and discovers the foregoing transactions. Marlon thereupon sues LYRIC Bank which in turn files a third-party complaint against YAMAHA Bank. Discuss the respective rights and liabilities of the two banks. (5%)


IX
Your client Dianne approaches you for legal advice on putting up a medium-sized restaurant business that will specialize in a novel type of cuisine. As Dianne feels that the business is a little risky, she wonders whether she should use a corporation as the business vehicle, or just run it as a single proprietorship. She already has an existing corporation that is producing meat products profitably and is also considering the alternative of simply setting up the restaurant as a branch office of the existing corporation.
A. Briefly explain to your client what you see as the legal advantages and disadvantages of using a separate corporation, a single proprietorship, or a branch of an existing corporation for the proposed restaurant business. (3%)
B. If you advise your client to use a corporation, what officer positions must the corporation at least have? (2%)
C. What particular qualifications, if any, are these officers legally required to possess under the Corporation Code? (2%)


X
To secure a loan of P10 million, Mario mortgaged his building to Armando. In accordance with the loan arrangements, Mario had the building insured with First Insurance Company for P10 million, designating Armando as the beneficiary. Armando also took an insurance on the building upon his own interest with Second Insurance Company for P5 million. The building was totally destroyed by fire, a peril insured against under both insurance policies. It was subsequently determined that the fire had been intentionally started by Mario and that in violation of the loan agreement, he had been storing inflammable materials in the building.
A. How much, if any, can Armando recover from either or both insurance companies? (2%)
B. What happens to the P10 million debt of Mario to Armando? Explain. (3%)


XI
Enrique obtained from Seguro Insurance Company a comprehensive motor vehicle insurance to cover his top of the line Aston Martin. The policy was issued on March 31, 2010 and, on even date, Enrique paid the premium with a personal check postdated April 6, 2010. On April 5, 2010, the car was involved in an accident that resulted in its total loss.


On April 10, 2010, the drawee bank returned Enrique’s check with the notation “Insufficient Funds.” Upon notification, Enrique immediately deposited additional funds with the bank and asked the insurer to redeposit the check. Enrique thereupon claimed indemnity from the insurer. Is the insurer liable under the insurance coverage? Why or why not? (3%)



XII
AA entered into a contract with BB for the latter to transport ladies wear from Manila to France with transhipment via Taiwan. Somehow the goods were not loaded in Taiwan on time, hence, these arrived in France “off-season.” AA was only paid for onehalf (1/2) the value by the buyer.
AA claimed damages from BB. BB invoked prescription as a defense under the Carriage of Goods by Sea Act. Considering the “loss of value” of the ladies wear as claimed by AA, is BB’s defense tenable? Explain. (3%)


XIII
Paolo, the owner of an ocean-going vessel, offered to transport the logs of Constantino from Manila to Nagoya. Constantino accepted the offer, not knowing that the vessel was manned by an irresponsible crew with deep-seated resentments against Paolo, their employer.


Constantino insured the cargo of logs against both perils of the sea and barratry. The logs were improperly loaded on one side, thereby causing the vessel to tilt on one side. On the way to Nagoya, the crew unbolted the sea valves of the vessel causing water to flood the ship hold. The vessel sank.
Constantino tried to collect from the insurance company which denied liability, given the unworthiness of both the vessel and its crew.


Constantino countered that he was not the owner of the vessel and he could therefore not be responsible for conditions about which he was innocent.
A. Is the insurance company liable? Why or why not? (3%)
B. What is “barratry” in marine insurance? (2%)


XIV
When OCCIDENTAL Bank folded up due to insolvency, Manuel had the following separate deposits in his name: P200,000 in savings deposit; P250,000 in time deposit; P50,000 in a current account; P1 million in a trust account; and P3 million in money market placement. Under the Philippine Deposit Insurance
Corporation Act, how much could Manuel recover? Explain. (2%)


XV
While vacationing in Boracay, Valentino surreptitiously took photographs of his girlfriend Monaliza in her skimpy bikini. Two weeks later, her photographs appeared in the Internet and in a national celebrity magazine. Monaliza found out that Valentino had sold the photographs to the magazine and, adding insult to injury, uploaded them to his personal blog on the Internet.


A. Monaliza filed a complaint against Valentino for damages based on, among other grounds, violation of her intellectual property rights. Does she have any cause of action? Explain. (2%)
B. Valentino’s friend Francesco stole the photographs and duplicated them and sold them to a magazine publication. Valentino sued Francesco for infringement and damages. Does Valentino have any cause of action? Explain. (2%)
C. Does Monaliza have any cause of action against Francesco? Explain. (2%)


XVI
An importer of Christmas toys loaded 100 boxes of Santa Claus talking dolls aboard a ship in Korea bound for Manila. With the intention of smuggling one-half of his cargo, he took a bill of lading for only 50 boxes. On the voyage to Manila, 50 boxes were jettisoned to save the more precious cargo.
A. Is the importer entitled to receive any indemnity for average? Explain. (2%)
B. What are the types of averages in marine commerce? (3%)


XVII
The Supreme Court has held that fraud is an exception to the “independence principle” governing letters of credit. Explain this principle and give an example of how fraud can be an exception. (3%)


XVIII
For years, Y has been engaged in the parallel importation of famous brands, including shoes carrying the foreign brand MAGIC. Exclusive distributor X demands that Y cease importation because of his appointment as exclusive distributor of MAGIC shoes in the Philippines. Y counters that the trademark MAGIC is not registered with the Intellectual Property Office as a trademark and therefore no one has the right to prevent its parallel importation.
A. Who is correct? Why? (2%)
B. Suppose the shoes are covered by a Philippine patent issued to the brand owner, what would your answer be? Explain. (2%)


XIX
Dr. Nobel discovered a new method of treating Alzheimer’s involving a special method of diagnosing the disease, treating it with a new medicine that has been discovered after long experimentation and field testing, and novel mental isometric exercises. He comes to you for advice on how he can have his
discoveries protected. Can he legally protect his new method of diagnosis, the new medicine, and the new method of treatment? If no, why? If yes,
how? (4%)
- NOTHING FOLLOWS -

2010 BAR EXAMINATIONS


CRIMINAL LAW


PART I
I
An agonizing and protracted trial having come to a close, the judge found A guilty beyond reasonable doubt of homicide and imposed on him a straight penalty of SIX (6) YEARS and ONE (1) DAY of prision mayor. The public prosecutor objected to the sentence on the ground that the proper penalty should have been TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal. The defense counsel chimed in, contending that application of the Indeterminate Sentence Law should lead to the imposition of a straight penalty of SIX (6) MONTHS and ONE (1) DAY of prision correccional only. Who of the three is on the right track? Explain. (3%)


II
A. What is the crime of qualified bribery? (2%)
B. May a judge be charged and prosecuted for such felony? How about a public prosecutor? A police officer? Explain. (5%)


III
May a public officer charged under Section 3(b) of Republic Act No. 3019 [“directly or indirectly requesting or receiving any gift, present, share, percentage or benefit, for himself or for any other person, in connection with any contract or transaction between the government and any other party, wherein the public
officer in his official capacity has to intervene under the law”] also be simultaneously or successively charged with direct bribery under Article 210 of the Revised Penal Code? Explain. (4%)


IV
Because of the barbarity and hideousness of the acts committed by the suspects/respondents in cutting off their victims’ appendages, stuffing their torsos, legs, body parts into oil drums and bullet-riddled vehicles and later on burying these oil drums, vehicles with the use of backhoes and other earth-moving
machinery, the Commission on Human Rights (CHR) investigating team recommended to the panel of public prosecutors that all respondents be charged with violation of the “Heinous Crimes Law.” The prosecution panel agreed with the CHR. As the Chief Prosecutor tasked with approving the filing of the Information, how will you pass upon the recommendation? Explain. (5%)


V
Arlene is engaged in the buy and sell of used garments, more popularly known as “ukay-ukay.” Among the items found by the police in a raid of her store in Baguio City were brand-new Louie Feraud blazers.
Arlene was charged with “fencing.” Will the charge prosper? Why or why not? (5%)


VI
There being probable cause to believe that certain deposits and investments in a bank are related to an unlawful activity of smuggling by Alessandro as defined under Republic Act (RA) No. 9160, as amended (Anti-Money Laundering Act) an application for an order to allow inquiry into his deposit was filed with the Regional Trial Court. After hearing the application, the court granted the application and issued a freeze order. Pass upon the correctness of the court’s order. Explain. (3%)


VII
A widower of ten years, septuagenarian Canuto felt that he had license to engage in voyeurism. If not peeping into his neighbors’ rooms through his powerful single-cylinder telescope, he would trail young, shapely damsels along the hallways of shopping malls. While going up the escalator, he stayed a step behind a mini-skirted one, and in a moment of excitement, put his hand on her left hip and massaged it. The damsel screamed and hollered for help. Canuto was apprehended and brought up on inquest. What charge/s, if any, may he be held responsible for? Explain. (5%)


VIII
A asked financial support from her showbiz friend B who accommodated her by issuing in her favor a postdated check in the sum of P90,000.00. Both of them knew that the check would not be honored because B’s account had just been closed. The two then approached trader C whom they asked to change the check with cash, even agreeing that the exchange be discounted at P85,000.00 with the assurance that the check shall be funded upon maturity. Upon C’s presentment of the check for payment on due date, it was dishonored because the account had already been closed.
What action/s may C commence against A and B to hold them to account for the loss of her P85,000.00? Explain. (5%)


IX
Proserfina, an assistant public high school principal, acted to facilitate the release of salary differentials and election duty per diem of classroom teachers with the agreement that they would reimburse her for her expenses. Did Proserfina commit a crime? Explain. (5%)


X
A, B and C are members of SFC Fraternity. While eating in a seaside restaurant, they were attacked by X, Y and Z, members of a rival fraternity. A rumble ensued in which the abovenamed members of the two fraternities assaulted each other in a confused and tumultuous manner resulting in the death of A. As it cannot be ascertained who actually killed A, the members of the two fraternities who took part in the rumble were charged for death caused in a tumultuous affray. Will the charge prosper? Explain. (4%)


XI
Angelina maintains a website where visitors can give their comments on the posted pictures of the goods she sells in her exclusive boutique. Bettina posted a comment that the red Birkin bag shown in Angelina’s website is fake and that Angelina is known to sell counterfeit items.
Angelina wants to file a case against Bettina. She seeks your advice. What advice will you give her? (4%)


PART II
XII
A. Define Money Laundering. What are the three (3) stages in money laundering? (3%)
B. What is the doctrine of pro reo? How does it relate to Article 48 of the Revised Penal Code? (3%)


XIII
While his wife was on a 2-year scholarship abroad, Romeo was having an affair with his maid Dulcinea. Realizing that the affair was going nowhere, Dulcinea told Romeo that she was going back to the province to marry her childhood sweetheart. Clouded by anger and jealousy, Romeo strangled Dulcinea to death while she was sleeping in the maid’s quarters. The following day, Romeo was found catatonic inside the maid’s quarters. He was brought to the National Center for Mental Health (NCMH) where he was diagnosed to be mentally unstable. Charged with murder, Romeo pleaded insanity as a defense.
A. Will Romeo’s defense prosper? Explain. (2%)
B. What is the effect of the diagnosis of the NCMH on the case? (2%)


XIV
Paul lives with his long-time girlfriend Joan in a condominium in Makati. For more than a year, he has been secretly saving money in an envelope under their bed to buy her an engagement ring. One day, while Joan was cleaning their room, she found the envelope, took the money, and left Paul. As prosecutor, what crime, if any, would you charge Joan? Explain. (3%)


XV
Suspecting that her husband of twenty years was having an affair, Leilanie hired a private investigator to spy on him. After two weeks, the private investigator showed Leilanie a video of her husband having sexual intercourse with another woman in a room of a five-star hotel. Based on what she saw on the video, Leilanie accused her husband of concubinage. Will the case of concubinage prosper? Explain. (3%)


XVI
The president, treasurer, and secretary of ABC Corporation were charged with syndicated estafa under the following Information:


That on or about the 1st week of January 2010 or subsequent thereto in Cebu City and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and all of them mutually helping and aiding one another in a syndicated manner, through a corporation registered with the Securities and Exchange Commission (SEC), with intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, with intent to gain and by means of fraud and deceit, did then and there wilfully, unlawfully, and feloniously defraud Virna, Lana, Deborah and several other persons by falsely or fraudulently pretending or representing in a transaction or series of transactions, which they made with complainants and the public
in general, to the effect that they were in a legitimate business of foreign exchange trading successively or simultaneously operating under the name and style of ABC Corporation and DEF Management Philippines, Incorporated, induced and succeeded in inducing complainants and several other persons to give and deliver to said accused the amount of at least P20,000,000.00 on the strength of said manifestations and representations, the accused knowing fully well that the abovenamed corporations registered with the SEC are not licensed nor authorized to engage in foreign exchange trading and that such manifestations and representations to transact in foreign exchange were false and fraudulent, that these resulted to the damage and prejudice of the complainants and other persons, and that the defraudation pertains to funds solicited from the public in general by such corporations/associations.
Will the case for syndicated estafa prosper? Explain. (5%)


XVII
A killed his wife and buried her in their backyard. He immediately went into hiding in the mountains. Three years later, the bones of A’s wife were discovered by X, the gardener. Since X had a standing warrant of arrest, he hid the bones in an old clay jar and kept quiet about it. After two years, Z, the caretaker, found the bones and reported the matter to the police. After 15 years of hiding, A left the country but returned three years later to take care of his ailing sibling. Six years thereafter, he was charged with parricide but raised the defense of prescription.


A. Under the Revised Penal Code, when does the period of prescription of a crime commence to run? (1%)
B. When is it interrupted? (1%)
C. Is A’s defense tenable? Explain. (3%)


XVIII
On her way home, Eva Marie saw an injured chow chow puppy behind a bush. Since the puppy did not have a collar, she brought it home so she could have it as a pet. Her son in fact begged Eva Marie to keep the puppy. The following day, Eva Marie bought a collar for the puppy and brought it to a veterinarian
for treatment.


A. Did Eva Marie incur criminal liability in bringing the puppy home as a pet? Explain. (2%)
B. Did she incur civil liability? Explain. (2%)


XIX
Jack and Jill have been married for seven years. One night, Jack came home drunk. Finding no food on the table, Jack started hitting Jill only to apologize the following day. A week later, the same episode occurred – Jack came home drunk and started hitting Jill. Fearing for her life, Jill left and stayed with her sister. To woo Jill back, Jack sent her floral arrangements of spotted lilies and confectioneries. Two days later, Jill returned home and decided to give Jack another chance. After several days, however, Jack again came home drunk. The following day, he was found dead. Jill was charged with parricide but raised the defense of “battered woman syndrome.”


A. Define “Battered Woman Syndrome.” (2%)
B. What are the three phases of the “Battered Woman Syndrome”? (3 %)
C. Would the defense prosper despite the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code? Explain. (2%)


XX
Matt was found guilty of drug trafficking while his younger brother Jeff was found guilty of possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs under Section 12 of Republic Act No. 9165. Matt filed a petition for probation. Jeff appealed his conviction during the pendency of which he also filed a petition for probation. The brothers’ counsel argued that they being first time offenders, their petitions for probation should be granted. How would you resolve the brothers’ petitions for probation? Explain. (3%)


XXI
Because peace negotiations on the Spratlys situation had failed, the People’s Republic of China declared war against the Philippines. Myra, a Filipina who lives with her Italian expatriate boyfriend, discovered e-mail correspondence between him and a certain General Tung Kat Su of China. On March 12, 2010, Myra discovered that on even date her boyfriend had sent an e-mail to General Tung Kat Su, in which he agreed to provide vital information on the military defense of the Philippines to the Chinese government in exchange for P1 million and his safe return to Italy. Two weeks later, Myra decided to report the matter to the proper authorities. Did Myra commit a crime? Explain. (3%)


XXII
Immediately after murdering Bob, Jake went to his mother to seek refuge. His mother told him to hide in the maid’s quarters until she finds a better place for him to hide. After two days, Jake transferred to his aunt’s house. A week later, Jake was apprehended by the police. Can Jake’s mother and aunt be made criminally liable as accessories to the crime of murder? Explain. (3 %)


XXIII
Christopher, John, Richard, and Luke are fraternity brothers. To protect themselves from rival fraternities, they all carry guns wherever they go. One night, after attending a party, they boarded a taxicab, held the driver at gunpoint and took the latter’s earnings. A. What crime, if any, did the four commit? Enumerate the elements of the crime. (2%)
B. Would your answer be the same if they killed the driver? Explain. (2%)
- NOTHING FOLLOWS -

2010 BAR EXAMINATIONS


TAXATION


12 September 2010 2 P.M – 5 P.M.

PART I
I
True or False.
A. In civil cases involving the collection of internal revenue taxes, prescription is construed strictly against the government and liberally in favor of the taxpayer. (1%)
B. In criminal cases involving tax offenses punishable under the National Internal Revenue Code (NIRC), prescription is construed strictly against the government. (1%)
C. In criminal cases where the Court of Tax Appeals (CTA) has exclusive original jurisdiction, the right to file a separate civil action for the recovery of taxes may be reserved. (1%)
D. Proceedings before the CTA in the exercise of its exclusive original jurisdiction are in the nature of trial de novo. (1%)
E. Judgments, resolutions or orders of the Regional Trial Court in the exercise of its original jurisdiction involving criminal offenses arising from violations of the NIRC are appealable to the CTA, which shall hear the cases en banc. (1%)


II
A. What is the “all events test”? Explain briefly. (2%)
B. What is the “immediacy test”? Explain briefly. (2%)
C. What is the “rational basis” test? Explain briefly. (2%)
D. What is the effect of the execution by a taxpayer of a “waiver of the statute of limitations” on his defense of prescription? (2%)

E. What is the basis for the computation of business tax on contractors under the Local Government Code? (2%)
F. How are retiring businesses taxed under the Local Government Code? (2%)


III
Mirador, Inc., a domestic corporation, filed its Annual Income Tax Return for its taxable year 2008 on April 15, 2009. In the Return, it reflected an income tax overpayment of P1,000,000.00 and indicated its choice to carry-over the overpayment as an automatic tax credit against its income tax liabilities in subsequent years. On April 15, 2010, it filed its Annual Income Tax Return for its taxable year 2009 reflecting a taxable loss and an income tax overpayment for the current year 2009 in the amount of P500,000.00 and its income tax overpayment for the prior year 2008 of P1,000,000.00. In its 2009 Return, the corporation indicated its option to claim for refund the total income tax overpayment of P1,500,000.00


Choose which of the following statements is correct.
A. Mirador, Inc. may claim as refund the total income tax overpayment of P1,500,000.00 reflected in its income tax return for its taxable year 2009;
B. It may claim as refund the amount of P500,000.00 representing its income tax overpayment for its taxable year 2009; or
C. No amount may be claimed as refund.
Explain the basis of your answer. (5%)


IV
On March 10, 2010, Continental, Inc. received a preliminary assessment notice (PAN) dated March 1, 2010 issued by the Commissioner of Internal Revenue (CIR) for deficiency income tax for its taxable year 2008. It failed to protest the PAN. The CIR thereupon issued a final assessment notice (FAN) with letter
of demand on April 30, 2010. The FAN was received by the corporation on May 10, 2010, following which or on May 25, 2010, it filed its protest against it.


The CIR denied the protest on the ground that the assessment had already become final and executory, the corporation having failed to protest the PAN.
Is the CIR correct? Explain. (5%)


V
Does the Court of Appeals have the power to review compromise agreements forged by the Commissioner of Internal Revenue and a taxpayer? Explain. (5%)


VI
Based on the Affidavit of the Commissioner of Internal Revenue (CIR), an Information for failure to file income tax return under Section 255 of the National Internal Revenue Code (NIRC) was filed by the Department of Justice (DOJ) with the Manila Regional Trial Court (RTC) against XX, a Manila resident.
XX moved to quash the Information on the ground that the RTC has no jurisdiction in view of the absence of a formal deficiency tax assessment issued by the CIR. Is a prior assessment necessary before an Information for violation of Section 255 of the NIRC could be filed in court?
Explain. (4%)


VII
What are the conditions that must be complied with before the Court of Tax Appeals may suspend the collection of national internal revenue taxes? (3%)


VIII
What is the rule on appeal from decisions of the Collector of Customs in protest and seizure cases? When is the decision of the Collector of Customs appealable to the Court of Tax Appeals? Explain. (5%)


IX
On May 15, 2009, La Manga Trading Corporation received a deficiency business tax assessment of P1,500,000.00 from the Pasay City Treasurer. On June 30, 2009, the corporation contested the assessment by filing a written protest with the City Treasurer. On October 10, 2009, the corporation received a collection letter from the City Treasurer, drawing it to file on October 25, 2009 an appeal against the assessment before the Pasay Regional Trial Court (RTC).
A. Was the protest of the corporation filed on time? Explain. (3%)
B. Was the appeal with the Pasay RTC filed on time? Explain. (3%)



PART II
X
True or False. (1% each)
A. Gains realized by the investor upon redemption of shares of stock in a mutual fund company are exempt from income tax.
B. A corporation can claim the optional standard deduction equivalent to 40% of its gross sales or receipts, as the case may be.
C. Premium payment for health insurance of an individual who is an employee in an amount of P2,500 per year may be deducted from gross income if his gross salary per year is not more than P250,000.
D. The Tax Code allows an individual taxpayer to pay in two equal installments, the first installment to be paid at the time the return is filed, and the second on or before July 15 of the same year, if his tax due exceeds P2,000.
E. An individual taxpayer can adopt either the calendar or fiscal period for purposes of filing his income tax return.
F. The capitalization rules may be resorted to by the BIR in order to compel corporate taxpayers to declare dividends to their stockholders regularly.
G. Informer’s reward is subject to a final withholding tax of 10%.
H. A non-resident alien who stays in the Philippines for less than 180 days during the calendar year shall be entitled to personal exemption not to exceed the amount allowed to citizens of the Philippines by the country of which he is subject or citizen.


XI
Are the following transactions subject to VAT? If yes, what is the applicable rate for each transaction. State the relevant authority/ies for your answer.
A. Construction by XYZ Construction Co. of concrete barriers for the Asian Development Bank in Ortigas Center to prevent car bombs from ramming the ADB gates along ADB Avenue in Mandaluyong City. (3%)
B. Call Center operated by a domestic enterprise in Makati that handles exclusively the reservations of a hotel chain which are all located in North America. The services are paid for in US$ and duly accounted for with the Bangko Sentral ng Pilipinas. (3%)
C. Sale of orchids by a flower shop which raises its flowers in Tagaytay. (3%)


XII
Ferremaro, Inc., a manufacturer of handcrafted shoes, maintains its principal office in Cubao, Quezon City. It has branches/sales offices in Cebu and Davao. Its factory is located in Marikina City where most of its workers live. Its principal office in Quezon City is also a sales office. Sales of finished products for calendar year 2009 in the amount of P10 million were made at the following locations:
i) Cebu branch 25%
ii) Davao branch 15%
iii) Quezon City branch __60%
Total 100%

Where should the applicable local taxes on the shoes be paid? Explain. (3%)


XIII
XYZ Shipping Corporation is a branch of an international shipping line with voyages between Manila and the West Coast of the U.S. The company’s vessels load and unload cargoes at the Port of Manila, albeit it does not have a branch or sales office in Manila. All the bills of lading and invoices are issued by the
branch office in Makati which is also the company’s principal office.


The City of Manila enacted an ordinance levying a 2% tax on gross receipts of shipping lines using the Port of Manila. Can the City Government of Manila legally impose said levy on the corporation? Explain. (3%)


XIV
A inherited a two-storey building in Makati from his father, a real estate broker in the ‘60s. A group of Tibetan monks approached A and offered to lease the building in order to use it as a venue for their Buddhist rituals and ceremonies. A accepted the rental of P1 million for the whole year. The following year, the City Assessor issued an assessment against A for non-payment of real property taxes. Is the assessor justified in assessing A’s deficiency real property taxes? Explain. (3%)


XV
Don Sebastian, single but head of the family, Filipino, and resident of Pasig City, died intestate on November 15, 2009. He left the following properties and interests:
House and lot (family home) in Pasig P 800,000
Vacation house and lot in Florida, USA 1,500,000
Agricultural land in Naic, Cavite which he inherited from his father 2,000,000
Car which is being used by his brother in Cavite 500,000
Proceeds of life insurance where he named his estate as irrevocable beneficiary 1,000,000
Household furnitures and appliances 1,000,000
Claims against a cousin who has assets of P10,000 and liabilities of P100,000 100,000
Shares of stock in ABC Corp, a domestic enterprise 100,000
The expenses and charges on the estate are as follows:
Funeral Expenses P 250,000
Legal fees for the settlement of the estate 500,000
Medical expenses of last illness 600,000
Claims against the estate 300,000

The compulsory heirs of Don Sebastian approach you and seek your assistance in the settlement of his estate for which they have agreed to the above-stated professional fees. Specifically, they request you to explain and discuss with them the following questions. You oblige:


A. What are the properties and interests that should be included in the computation of the gross estate of the decedent? Explain. (2.5%)
B. What is the net taxable estate of the decedent? Explain. (2.5%)
C. When is the due date for filing and payment of the applicable tax return and tax? Are these dates extendible? If so, under what conditions or requirements? (2.5%)
D. If X, one of the compulsory heirs, renounces his share in the inheritance in favor of the other co-heirs, is there any tax implication of X’s renunciation? What about the other coheirs? (2.5%)


XVI
A is a travelling salesman working full time for Nu Skin Products. He receives a monthly salary plus 3% commission on his sales in a Southern province where he is based. He regularly uses his own car to maximize his visits even to far flung areas. One fine day a group of militants seized his car. He was notified
the following day by the police that the marines and the militants had a bloody encounter and his car was completely destroyed after a grenade hit it.
A wants to file a claim for casualty loss. Explain the legal basis of your tax advice. (3%)


XVII
In 2009, Caruso, a resident Filipino citizen, received dividend income from a U.S.-based corporation which owns a chain of Filipino restaurants in the West Coast, U.S.A. The dividend remitted to Caruso is subject to U.S. withholding tax with respect to a non-resident alien like Caruso.
A. What will be your advice to Caruso in order to lessen the impact of possible double taxation on the same income? (3%)
B. Would your answer in A. be the same if Caruso became a U.S. immigrant in 2008 and had become a non-resident Filipino citizen? Explain the difference in treatment for Philippine income tax purposes. (3%)


XVIII
ABC, a domestic corporation, entered into a software license agreement with XYZ, a non-resident foreign corporation based in the U.S. Under the agreement which the parties forged in the U.S., XYZ granted ABC the right to use a computer system program and to avail of technical know-how relative to such program. In consideration for such rights, ABC agreed to pay 5% of the revenues it receives from customers who will use and apply the program in the Philippines. Discuss the tax implication of the transaction. (5%)

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