G.R. No.

131359 May 5, 1999

MANILA ELECTRIC COMPANY, petitioner,

vs.
PROVINCE OF LAGUNA and BENITO R. BALAZO, in his capacity as Provincial Treasurer of
Laguna, respondents.

VITUG, J.:

On various dates, certain municipalities of the Province of Laguna, including, Biñan, Sta. Rosa, San
Pedro, Luisiana, Calauan and Cabuyao, by virtue of existing laws then in effect, issued resolutions
through their respective municipal councils granting franchise in favor of petitioner Manila Electric
Company ("MERALCO") for the supply of electric light, heat and power within their concerned areas.
On 19 January 1983, MERALCO was likewise granted a franchise by the National Electrification
Administration to operate an electric light and power service in the Municipality of Calamba, Laguna.

On 12 September 1991, Republic Act No. 7160, otherwise known as the "Local Government Code of
1991," was enacted to take effect on 01 January 1992 enjoining local government units to create
their own sources of revenue and to levy taxes, fees and charges, subject to the limitations
expressed therein, consistent with the basic policy of local autonomy. Pursuant to the provisions of
the Code, respondent province enacted Laguna Provincial Ordinance No. 01-92, effective 01
January 1993, providing, in part, as follows:

Sec. 2.09. Franchise Tax. — There is hereby imposed a tax on businesses enjoying
a franchise, at a rate of fifty percent (50%) of one percent (1%) of the gross annual
receipts, which shall include both cash sales and sales on account realized during
the preceding calendar year within this province, including the territorial limits on any
city located in the province.

On the basis of the above ordinance, respondent Provincial Treasurer sent a demand letter to
MERALCO for the corresponding tax payment. Petitioner MERALCO paid the tax, which then
amounted to P19,520.628.42, under protest. A formal claim for refund was thereafter sent by
MERALCO to the Provincial Treasurer of Laguna claiming that the franchise tax it had paid and
continued to pay to the National Government pursuant to P.D. 551 already included the franchise tax
imposed by the Provincial Tax Ordinance. MERALCO, contended that the imposition of a franchise
tax under Section 2.09 of Laguna Provincial Ordinance No. 01-92, insofar as it concerned
MERALCO, contravened the provisions of Section 1 of P.D. 551 which read:

Any provision of law or local ordinance to the contrary notwithstanding, the franchise
tax payable by all grantees of franchises to generate, distribute and sell electric
current for light, heat and power shall be two per cent (2%) of their gross receipts
received from the sale of electric current and from transactions incident to the
generation, distribution and sale of electric current.

Such franchise tax shall be payable to the Commissioner of Internal Revenue or his
duly authorized representative on or before the twentieth day of the month following
the end of each calendar quarter or month, as may be provided in the respective
franchise or pertinent municipal regulation and shall, any provision of the Local Tax
Code or any other law to the contrary notwithstanding, be in lieu of all taxes and
assessments of whatever nature imposed by any national or local authority on
 earnings, receipts, income and privilege of generation, distribution and sale of
electric current.

On 28 August 1995, the claim for refund of petitioner was denied in a letter signed by Governor Jose
D. Lina relied on a more recent law, i.e. Republic Act No. 7160 or the Local Government Code of
1991, than the old decree invoked by petitioner.

On 14 February 1996, petitioner MERALCO filed with the Regional Trial Court of Sta. Cruz, Laguna,
a complaint for refund, with a prayer for the issuance of a writ of preliminary injunction and/or
temporary restraining order, against the Province of Laguna and also Benito R. Balazo in his
capacity as the Provincial Treasurer of Laguna. Aside from the amount of P19,520,628.42 for which
petitioner MERALCO had priorly made a formal request for refund, petitioner thereafter likewise
made additional payments under protest on various dates totaling P27,669,566.91.

The trial court, in its assailed decision of 30 September 1997, dismissed the complaint and
concluded:

WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS,

JUDGMENT is hereby rendered in favor of the defendants and against the plaintiff,
by:

1. Ordering the dismissal of the Complaint; and

2. Declaring Laguna Provincial Tax Ordinance No. 01-92 as valid, binding,

reasonable and enforceable. 2

In the instant petition, MERALCO assails the above ruling and brings up the following issues; viz:

1. Whether the imposition of a franchise tax under Section 2.09 of Laguna Provincial
Ordinance No. 01-92, insofar as petitioner is concerned, is violative of the non-
impairment clause of the Constitution and Section 1 of Presidential Decree No. 551.

2. Whether Republic Act No. 7160, otherwise known Local Government Code of
1991, has repealed, amended or modified Presidential Decree No. 551.

3. Whether the doctrine of administrative remedies is applicable in this case. 3

The petition lacks merit.

Prefatorily, it might be well to recall that local governments do not have the inherent power to
tax 4 except to the extent that such power might be delegated to them either by the basic law or by
statute. Presently, under Article X of the 1987 Constitution, a general delegation of that power has
been given in favor of local government units. Thus:

Sec. 3. The Congress shall enact a local government code which shall provide for a
more responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications, election,
appointment and removal, term, salaries, powers and functions, and duties of local
 officials, and all other matters relating to the organization and operation of the local
units.

xxx xxx xxx

Sec. 5. Each local government unit shall have the power to create its own sources of
revenues and to levy taxes, fees, and charges subject to such guidelines and
limitations as the Congress may provide, consistent with the basic policy of local
autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
governments.

The 1987 Constitution has a counterpart provision in the 1973 Constitution which did come
out with a similar delegation of revenue making powers to local governments. 5

Under regime of the 1935 Constitution no similar delegation of tax powers was provided, and local
government units instead derived their tax powers under a limited statutory authority. Whereas, then,
the delegation of tax powers granted at that time by statute to local governments was confined and
defined (outside of which the power was deemed withheld), the present constitutional rule (starting
with the 1973 Constitution), however, would broadly confer such tax powers subject only to specific
exceptions that the law might prescribe.

Under the now prevailing Constitution, where there is neither a grant nor a prohibition by statute, the
tax power must be deemed to exist although Congress may provide statutory limitations and
guidelines. The basic rationale for the current rule is to safeguard the viability and self-sufficiency of
local government units by directly granting them general and broad tax powers. Nevertheless, the
fundamental law did not intend the delegation to be absolute and unconditional; the constitutional
objective obviously is to ensure that, while the local government units are being strengthened and
made more autonomous, 6 the legislature must still see to it that (a) the taxpayer will not be over-
burdened or saddled with multiple and unreasonable impositions; (b) each local government unit will
have its fair share of available resources; (c) the resources of the national government will not be
unduly disturbed; and (d) local taxation will be fair, uniform, and just.

The Local Government Code of 1991 has incorporated and adopted, by and large, the provisions of
the now repealed Local Tax Code, which had been in effect since 01 July 1973, promulgated into
law by Presidential Decree
No. 2317 pursuant to the then provisions of Section 2, Article XI, of the 1973 Constitution. The 1991
Code explicitly authorizes provincial governments, notwithstanding "any exemption granted by any
law or other special law, . . . (to) impose a tax on businesses enjoying a franchise." Section 137
thereof provides:

Sec. 137. Franchise Tax — Notwithstanding any exemption granted by any law or
other special law, the province may impose a tax on businesses enjoying a franchise,
at a rate not exceeding fifty percent (50%) of one percent (1%) of the gross annual
receipts for the preceding calendar year based on the incoming receipt, or realized,
within its territorial jurisdiction. In the case of a newly started business, the tax shall
not exceed one-twentieth (1/20) of one percent (1%) of the capital investment. In the
succeeding calendar year, regardless of when the business started to operate, the
tax shall be based on the gross receipts for the preceding calendar year, or any
fraction thereof, as provided herein. (Underscoring supplied for emphasis)
Indicative of the legislative intent to carry out the Constitutional mandate of vesting broad tax powers
to local government units, the Local Government Code has effectively withdrawn under Section 193
thereof, tax exemptions or incentives theretofore enjoyed by certain entities. This law states:

Sec. 193. Withdrawal of Tax Exemption Privileges — Unless otherwise provided in

this Code, tax exemptions or incentives granted to, or presently enjoyed by all
persons, whether natural or juridical, including government-owned or controlled
corporations, except local water districts, cooperatives duly registered under R.A. No.
6938, non-stock and non-profit hospitals and educational institutions, are hereby
withdrawn upon the effectivity of this Code. (Underscoring supplied for emphasis)

The Code, in addition, contains a general repealing clause in its Section 534; thus:

Sec. 534. Repealing Clause. — . . .

(f) All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof which are
inconsistent with any of the provisions of this Code are hereby repealed or modified
accordingly. (Underscoring supplied for emphasis) 8

To exemplify, in Mactan Cebu International Airport Authority vs. Marcos, 9 the Court upheld the
withdrawal of the real estate tax exemption previously enjoyed by Mactan Cebu International Airport
Authority. The Court ratiocinated:

. . . These policy considerations are consistent with the State policy to ensure
autonomy to local governments and the objective of the LGC that they enjoy genuine
and meaningful local autonomy to enable them to attain their fullest development as
self-reliant communities and make them effective partners in the attainment of
national goals. The power to tax is the most effective instrument to raise needed
revenues to finance and support myriad activities if local government units for the
delivery of basic services essential to the promotion of the general welfare and the
enhancement of peace, progress, and prosperity of the people. It may also be
relevant to recall that the original reasons for the withdrawal of tax exemption
privileges granted to government-owned and controlled corporations and all other
units of government were that such privilege resulted in serious tax base erosion and
distortions in the tax treatment of similarity situated enterprises, and there was a
need for these entities to share in the requirements of development, fiscal or
otherwise, by paying the taxes and other charges due from them. 10

Petitioner in its complaint before the Regional Trial Court cited the ruling of this Court in Province of
Misamis Oriental vs. Cagayan Electric Power and Light Company, Inc.; 11 thus:

In an earlier case, the phrase "shall be in lieu of all taxes and at any time levied,
established by, or collected by any authority" found in the franchise of the Visayan
Electric Company was held to exempt the company from payment of the 5% tax on
corporate franchise provided in Section 259 of the Internal Revenue Code (Visayan
Electric Co. vs. David, 49 O.G. [No. 4] 1385)

Similarly, we ruled that the provision: "shall be in lieu of all taxes of every name and
nature" in the franchise of the Manila Railroad (Subsection 12, Section 1, Act No.
1510) exempts the Manila Railroad from payment of internal revenue tax for its
 importations of coal and oil under Act No. 2432 and the Amendatory Acts of the
Philippine Legislature (Manila Railroad vs. Rafferty, 40 Phil. 224).

The same phrase found in the franchise of the Philippine Railway Co. (Sec. 13, Act
No. 1497) justified the exemption of the Philippine Railway Company from payment
of the tax on its corporate franchise under Section 259 of the Internal Revenue Code,
as amended by R.A. No. 39 (Philippine Railway Co vs. Collector of Internal Revenue,
91 Phil. 35).

Those magic words, "shall be in lieu of all taxes" also excused the Cotabato Light
and Ice Plant Company from the payment of the tax imposed by Ordinance No. 7 of
the City of Cotabato (Cotabato Light and Power Co. vs. City of Cotabato, 32 SCRA
231).

So was the exemption upheld in favor of the Carcar Electric and Ice Plant Company
when it was required to pay the corporate franchise tax under Section 259 of the
Internal Revenue Code, as amended by R.A. No. 39 (Carcar Electric & Ice Plant vs.
Collector of Internal Revenue, 53 O.G. [No. 4]. 1068). This Court pointed out that
such exemption is part of the inducement for the acceptance of the franchise and the
rendition of public service by the grantee. 2

In the recent case of the City Government of San Pablo, etc., et al. vs. Hon. Bienvenido V.
Reyes, et al., 13 the Court has held that the phrase in lieu of all taxes "have to give way to the
peremptory language of the Local Government Code specifically providing for the withdrawal of such
exemptions, privileges," and that "upon the effectivity of the Local Government Code all exemptions
except only as provided therein can no longer be invoked by MERALCO to disclaim liability for the
local tax." In fine, the Court has viewed its previous rulings as laying stress more on the legislative
intent of the amendatory law — whether the tax exemption privilege is to be withdrawn or not —
rather than on whether the law can withdraw, without violating the Constitution, the tax exemption or
not.

While the Court has, not too infrequently, referred to tax exemptions contained in special franchises
as being in the nature of contracts and a part of the inducement for carrying on the franchise, these
exemptions, nevertheless, are far from being strictly contractual in nature. Contractual tax
exemptions, in the real sense of the term and where the non-impairment clause of the Constitution
can rightly be invoked, are those agreed to by the taxing authority in contracts, such as those
contained in government bonds or debentures, lawfully entered into by them under enabling laws in
which the government, acting in its private capacity, sheds its cloak of authority and waives its
governmental immunity. Truly, tax exemptions of this kind may not be revoked without impairing the
obligations of contracts. 14 These contractual tax exemptions, however, are not to be confused with
tax exemptions granted under franchises. A franchise partakes the nature of a grant which is beyond
the purview of the non-impairment clause of the Constitution.15 Indeed, Article XII, Section 11, of the
1987 Constitution, like its precursor provisions in the 1935 and the 1973 Constitutions, is explicit that
no franchise for the operation of a public utility shall be granted except under the condition that such
privilege shall be subject to amendment, alteration or repeal by Congress as and when the common
good so requires.

WHEREFORE, the instant petition is hereby DISMISSED. No costs. 1âw phi1. nêt

SO ORDERED.

Romero, Panganiban, Purisima and Gonzaga-Reyes, JJ., concur.

#Footnotes

1 Rollo, p. 27.

2 Rollo, p. 31.

3 Rollo, p. 113.

4 Basco vs. PAGCOR, 197 SCRA 52.

5 Art. IX, 1973 Constitution.

6 See Sec. 25, Art. II and Sec. 2, Art. X.

7 Later amended by PD. 426.

8 Rollo, pp. 28-29.

9 261 SCRA 667.

10 At p. 690.

11 181 SCRA 38 citing Carcar Electric & Ice Plant vs. Collector of Internal Revenue, 56 O.G.
(No 4) 1068.

12 At pp. 42-43.

13 G.R. No. 127708, 25 March 1999.

14 See Casanovas vs. Hord 8 Phil. 125.

15 See Cagayan Electric Co. vs. Commissioner, G.R. L-601026, 25 September 1985,
but see Prov. of Misamis Oriental vs. Cagayan Electric, 181 SCRA 38, reiterated in Comm.
vs. CTA, 195 SCRA 445.