MENDEZ vs.

PEOPLE

Facts:

The Bureau of Internal Revenue (BIR) filed a complaint-affidavit with the Department of Justice against
the petitioner. The BIR alleged that the petitioner had been operating as a single proprietor doing
business and/or exercising his profession for taxable years 2001 to 2003 under several trade names and
registration addresses.

Based on these operations, the BIR alleged that petitioner failed to file his income tax returns for taxable
years 2001 to 2003 and, consequently evaded his obligation to pay the correct amount of taxes due the
government.

In his defense, the petitioner admitted that he has been operating as a single proprietor under these trade
names in Quezon City, Makati, Dagupan and San Fernando. However, he countered that he did not file
his income tax returns in these places because his business establishments were registered only in 2003
at the earliest; thus, these business establishments were not yet inexistence at the time of his alleged
failure to file his income tax return.

After a preliminary investigation, State Prosecutor Juan Pedro Navera found probable cause against
petitioner for non-filing of income tax returns for taxable years 2001 and 2002 and for failure to supply
correct and accurate information as to his true income for taxable year 2003, in violation of the National
Internal Revenue Code.

Accordingly an Information was filed with the CTA charging the petitioner with violation of Section 255 of
Republic Act No. 8424 (Tax Reform Act of 1997) where accordingly, petitioner, did then and there,
willfully, unlawfully and feloniously fail to file his Income Tax Return (ITR)with the Bureau of Internal
Revenue for the taxable year 2001, to the damage and prejudice of the Government in the estimated
amount of P1,089,439.08, exclusive of penalties, surcharges and interest.

The accused was arraigned and pleaded not guilty. A “Motion to Amend Information with Leave of Court”
was filed then by the prosecution where the information reads as

xxx
“ … the above named accused, doing business under the name and style of “Weigh LessCenter” /
“Mendez Medical Group,” with several branches in Quezon City, Muntinlupa City, Mandaluyong City
and Makati City, did then and there, wilfully, unlawfully andfeloniously fail to file his income tax return
(ITR) with the Bureauof Internal Revenue for income earned for the taxable year2001, to the damage
and prejudice of the Government..”
xxx

The petitioner failed to file his comment to the motion within the required period; thus the CTA First
Division granted the prosecution’s motion. The petitioner filed the present petition for certiorari and
prohibition under Rule 65 after the CTA denied his motion for reconsideration.

Petitioner’s contention:

He claims in his petition that the prosecution’s amendment is a substantial amendment because its
additional allegations alter the prosecution’s theory of the case so as to cause surprise to him and affect
the form of his defense, and thus, prohibited under Section 14, Rule 110 of the Revised Rules of Criminal
Procedure as was not properly informed of the nature and cause of the accusation against him.

The petitioner adds that the change in the date of the commission of the crime from 2001 to 2002 would
also alter his defense considering that the difference in taxable years would mean requiring a different set
of defense evidence. The same is true with the new allegation of “Mendez Medical Group” since it
deprived him of the right, during the preliminary investigation, to present evidence against the alleged
operation and or existence of this entity.
In sum, the amendments sought change the subject of the offense and thus substantial.

Respondent’s Contention

The respondents claim that the petitioner availed of the wrong remedy in questioning the CTA resolutions.
Under Rule 9, Section 9 of the Revised Rules of CTA, the remedy of appeal to the CTA En Banc is the
proper remedy, to be availed of within fifteen days from receipt of the assailed resolution. The filing of the
present petition was clearly a substitute for a lost appeal.

Even assuming that certiorari is the proper remedy, the CTA did not commit an error of jurisdiction or act
with grave abuse of discretion.

Further, respondents content that neither of the amendments made were substantial.

Issues:
1. Is the remedy of certiorari proper?
2. Whether the prosecution’s amendments made after the petitioner’s arraignment are substantial in
nature and must perforce be denied?

Ruling:
DISMISS.

1) Yes. Under Rule 65 of the Rules of Court, certiorari is available when there is no appeal or any plain,
speedy and adequate remedy in the ordinary course of law. After failing in his bid for the CTA to
reconsider its admission of the amended information, the only remedy left to the petitioner is to file a
petition for certiorari with this Court.

Contrary to the prosecution’s argument, the remedy of appeal to the CTA En Banc is not available to the
petitioner. In determining the appropriate remedy or remedies available, a party aggrieved by a court
order, resolution or decision must first correctly identify the nature of the order, resolution or decision he
intends to assail.
What Section 9 Rule 9 of the Rules of the CTA provides is that appeal to the CTA En Banc may be taken
from a decision or resolution of the CTA division in criminal cases by filing a petition for review under Rule
43 of the Rules of Court. Under Section 1, Rule 43, the remedy of a petition for review is available only
against a judgment or a final order.

A judgment or order is considered final if it disposes of the action or proceeding completely, or terminates
a particular stage of the same action; in such case, the remedy available to an aggrieved party is appeal.
If the order or resolution, however, merely resolves incidental matters and leaves something more to be
done to resolve the merits of the case, as in the present case, the order is interlocutory and the aggrieved
party’s only remedy after failing to obtain a reconsideration of the ruling is a petition for certiorari under
Rule 65.

Nonetheless, while we rule that the petitioner availed of the correct remedy, we resolve to dismiss the
petition for failure to establish that the CTA abused its discretion, much less gravely abused its discretion.

2) No.
Section 14, Rule 110 of the Revised Rules of Criminal Procedure governs the matter of amending the
information:

Amendment or substitution. — A complaint or information may be amended, in form or in substance,

without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a
formal amendment may only be made with leave of court and when it can be done without causing
prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the offense charged in or
excludes any accused from the complaint or information, can be made only upon motion by the
prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in
resolving the motion and copies of its order shall be furnished all parties, especially the offended party.

In short, amendments that do not charge another offense different from that charged in the original one;
or do not alter the prosecution’s theory of the case so as to cause surprise to the accused and affect the
form of defense he has or will assume are considered merely as formal amendments.

In the present case, the amendments sought by the prosecution pertains to (i) the alleged change in the
date in the commission of the crime from 2001 to 2002; (ii) the addition of the phrase “doing business
under the name and style of Mendez Medical Group”; (iii) the change and/or addition of the branches of
petitioner’s operation; and (iv)the addition of the phrase “for income earned.” We cannot see how these
amendments would adversely affect any substantial right of the petitioner as accused.

The “change” in the date from 2001 to 2002 and the addition of the phrase “for income earned”

Interestingly, in its August 13, 2007 resolution, denying the petitioner’s motion for reconsideration, the
CTA implicitly ruled that there was in fact no amendment of the date in the information by correctly citing
what the original information alleges. This, notwithstanding, the petitioner still baselessly belaboured the
point in its present petition by citing the erroneous content of the prosecution’s motion to amend instead
of the original information itself.

That the actual date of the commission of the offense pertains to the year 2002 is only consistent with the
allegation in the information on the taxable year it covers, i.e., for the taxable year 2001. Since the
information alleges that petitioner failed to file his income tax return for the taxable year 2001, then the
offense could only possibly be committed when petitioner failed to file his income tax return before the
due date of filing, which is on April of the succeeding year, 2002.
Accordingly, the addition of the phrase “for the income earned” before the phrase “for the taxable year
2001” cannot but be a mere formal amendment since the added phrase merely states with additional
precision something that is already contained in the original information, i.e., the income tax return is
required to be filed precisely for the income earned for the preceding taxable year.

The nature of the remaining two items of amendment would be better understood, not only in the context
of the nature of the offense charged under the amended information, but likewise in the context of the
legal status of the “Mendez Medical Group.”

The addition of the phrase “doing business under the name and style of Mendez Medical Group
and the change and/or addition of the branches of petitioner’s operation

Under the National Internal Revenue Code (NIRC), a resident citizen who is engaged in the practice of a
profession within the Philippines is obligated to file induplicate an
income tax return on his income from all sources, regardless of the amount of his gross income. In
complying with this obligation, this type of taxpayer ought to keep only two basic things in mind: first is
where to file the return; and second is when to file the return. Under Section 51(B) of the NIRC, the return
should “be filed with an authorized agent bank, Revenue District Officer, Collection Agent or duly
authorized Treasurer of the city or municipality in which such person has his legal residence or principal
place of business in the Philippines.”

On the other hand, under Section 51(C) of the NIRC, the same taxpayer is required to file his income tax
return on or before the fifteenth (15th) day of April of each year covering income for the preceding taxable
year. Failure to comply with this requirement would result in a violation of Section 255 of the NIRC which
reads:
Section 255. Failure to File Return, Supply Correct and Accurate Information, Pay Tax Withhold and
Remit Tax and Refund Excess Taxes Withheld on Compensation.—Any person promulgated thereunder
to pay any tax, make a return, keep any record, or supply any correct and accurate information, who
willfully fails to pay such tax, make such return, keep such record, or supply correct and accurate
information, or withhold or remit taxes withheld, or refund excess taxes withheld on compensation, at the
time or times required by law or rules and regulations shall, in addition to other penalties provided by law,
upon conviction thereof, be punished by a fine of not less than Ten thousand pesos (P10,000) and suffer
imprisonment of not less than one (1) year but not more than ten (10) years.

Since the petitioner operates as a sole proprietor from taxable years 2001 to 2003, the petitioner should
have filed a consolidated return in his principal place of business, regardless of the number and location
of his other branches. Consequently, we cannot but agree with the CTA that the change and/or addition of
the branches of the petitioner’s operation in the information does not constitute substantial amendment
because it does not change the prosecution’s theory that the petitioner failed to file his income tax return.

Still, the petitioner cites the case of Matalam v.Sandiganbayan, Second Division in claiming that the
deletion of San Fernando (Pampanga City) and Dagupan City deprives him of the defenses he raised in
his counter-affidavit.

In Matalam, the prosecution charged the accused with violation of RA No. 3019 for “causing undue injury
to several [government employees] thru evident bad faith x x x by illegally and unjustifiably refusing to pay
[their]monetary claims x x x in the nature of unpaid salaries during the period when they have been
illegally terminated, including salary differentials and other benefits.” After a reinvestigation, the
prosecution sought to amend the information to allege that the accused— caused undue injury by illegally
dismissing from the service[several government] employees, x x x to their damage and prejudice
amounting to P1,606,788.50 by way of unpaid salaries during the period when they have been illegally
terminated including salary differentials and other benefits.

The accused moved to dismiss the amended information for charging an entirely new cause of action and
asked for preliminary investigation on this new charge of illegal dismissal.

The Sandiganbayan observed that (i) there is a clear change in the cause of action (from refusal to pay to
illegal dismissal); and (ii) the main defense of all the accused in the original information — the lack of a
corresponding appropriation for the payment of the monetary claims of the complaining witnesses —
would no longer be available under the amendment. After finding, however, that the complainants’
demand for monetary claim actually arose from their alleged illegal dismissal, the Sandiganbayan allowed
the amendment because an “inquiry to the allegations in the original information will certainly and
necessarily elicit substantially the same facts to the inquiry of the allegations in the Amended
Information.”

As to when the rights of an accused are prejudiced by an amendment made after he had pleaded to the
original information, Montenegro ruled that prejudice exists when a defense under the original information
would no longer be available after the amendment is made, and when any evidence the accused might
have, would be inapplicable to the Information as amended. Applying this test, the Court disallowed the
amendment for being substantial in nature as the recital of facts constituting the offense charged was
altered.

The inapplicability of Matalam to the present case is obvious.

Here, the prosecution’s theory of the case, i.e., that petitioner failed to file his income tax return for the
taxable year 2001 did not change. The prosecution’s cause for filing an information remained the same
as the cause in the original and in the amended information. For emphasis, the prosecution’s evidence
during the preliminary investigation of the case shows that petitioner did not file his income tax return in
his place of legal residence or principal place of business in Quezon City or with the Commissioner. In
short, the amendment sought did not alter the crime charged.

Contrary to the petitioner’s claim, the opportunity given to the accused to present his defense evidence
during the preliminary investigation is not exhaustive. In the same manner that the complainant’s
evidence during preliminary investigation is only required to establish the minimal evidentiary threshold of
probable cause, the evidence that the respondent may present during trial is not limited to what he had
presented during the preliminary investigation, so long as the evidence for both parties supports or
negates the elements of the offense charged.

To be sure, the jurisprudential test on whether a defendant is prejudiced by the amendment of an

information pertains to the availability of the same defense and evidence that the accused
previously had under the original information. This test, however, must be read together with the
characteristic thread of formal amendments, which is to maintain the nature of the crime or the essence of
the offense charged.

In the present case, this thread remained consistently under the amended information, alleging the
petitioner’s failure to file his return and consequently to pay the correct amount of taxes. Accordingly, the
petitioner could not have been surprised at all.

We also reject for lack of merit petitioner’s claim that the inclusion of the phrase “doing business under
the name and style of Mendez Medical Group” after his preliminary investigation and arraignment
deprives him of the right to question the existence of this “entity.”

The petitioner however has not drawn our attention to any of his related operations that actually
possesses its own juridical personality. In the original information, petitioner is described as “sole
proprietor of Weigh Less Center.” A sole proprietorship is a form of business organization conducted for
profit by a single individual, and requires the proprietor or owner thereof, like the petitioner-accused, to
secure licenses and permits, register the business name, and pay taxes to the national government
without acquiring juridical or legal personality of its own.

In the amended information, the prosecution additionally alleged that petitioner is “doing business under
the name and style of ‘Weigh Less Center’/Mendez Medical Group.” Given the nature of a sole
proprietorship, the addition of the phrase “doing business under the name and style” is merely descriptive
of the nature of the business organization established by the petitioner as a way to carry out the practice
of his profession. As a phrase descriptive of a sole proprietorship, the petitioner cannot feign ignorance of
the “entity” “Mendez Medical Group” because this entity is nothing more than the shadow of its business
owner — petitioner himself.