THIRD DIVISION

EMERLINDA S. TALENTO, G.R. No. 180884

in her capacity as the Provincial
Treasurer of the Province of Bataan,
Petitioner,
- versus -
HON. REMIGIO M. ESCALADA, JR.,
Presiding Judge of the Regional Trial
Court of Bataan, Branch 3, and Promulgated:
PETRON CORPORATION,
Respondents. June 27, 2008
x ---------------------------------------------------------------------------------------- x

DECISION
YNARES-SANTIAGO, J .:
The instant petition for certiorari under Rule 65 of the Rules of Court
assails the November 5, 2007 Order of the Regional Trial Court of Bataan,
Branch 3, in Civil Case No. 8801, granting the petition for the issuance of a
writ of preliminary injunction filed by private respondent Petron Corporation
(Petron) thereby enjoining petitioner Emerlinda S. Talento, Provincial
Treasurer of Bataan, and her representatives from proceeding with the
public auction of Petrons machineries and pieces of equipment during the
pendency of the latters appeal from the revised assessment of its
properties.

2

The facts of the case are as follows:
On June 18, 2007, Petron received from the Provincial Assessors
Office of Bataan a notice of revised assessment over its machineries and
pieces of equipment in Lamao, Limay, Bataan. Petron was given a period
of 60 days within which to file an appeal with the Local Board of
Assessment Appeals (LBAA). Based on said revised assessment,
petitioner Provincial Treasurer of Bataan issued a notice informing Petron
that as of June 30, 2007, its total liability is P1,731,025,403.06,
representing deficiency real property tax due from 1994 up to the first and
second quarters of 2007.
On August 17, 2007, Petron filed a petition with the LBAA (docketed
as LBAA Case No. 2007-01) contesting the revised assessment on the
grounds that the subject assessment pertained to properties that have
been previously declared; and that the assessment covered periods of
more than 10 years which is not allowed under the Local Government Code
(LGC). According to Petron, the possible valid assessment pursuant to
Section 222 of the LGC could only be for the years 1997 to 2006. Petron
further contended that the fair market value or replacement cost used by
petitioner included items which should be properly excluded; that prompt
payment of discounts were not considered in determining the fair market
value; and that the subject assessment should take effect a year after or on
January 1, 2008. In the same petition, Petron sought the approval of a
surety bond in the amount of P1,286,057,899.54.
On August 22, 2007, Petron received from petitioner a final notice of
delinquent real property tax with a warning that the subject properties
3

would be levied and auctioned should Petron fail to settle the revised
assessment due.
Consequently, Petron sent a letter] to petitioner stating that in view of
the pendency of its appeal with the LBAA, any action by the Treasurers
Office on the subject properties would be premature. However, petitioner
replied that only Petrons payment under protest shall bar the collection of
the realty taxes due,] pursuant to Sections 231 and 252 of the LGC.
With the issuance of a Warrant of Levy against its machineries and
pieces of equipment, Petron filed on September 24, 2007, an urgent motion
to lift the final notice of delinquent real property tax and warrant of levy with
the LBAA. It argued that the issuance of the notice and warrant is
premature because an appeal has been filed with the LBAA, where it
posted a surety bond in the amount of P1,286,057,899.54.
On October 3, 2007, Petron received a notice of sale of its properties
scheduled on October 17, 2007. Consequently, on October 8, 2007,
Petron withdrew its motion to lift the final notice of delinquent real property
tax and warrant of levy with the LBAA. On even date, Petron filed with
the Regional Trial Court of Bataan the instant case (docketed as Civil
Case No. 8801) for prohibition with prayer for the issuance of a
temporary restraining order (TRO) and preliminary injunction.

On October 15, 2007, the trial court issued a TRO for 20 days
enjoining petitioner from proceeding with the public auction of Petrons
properties. Petitioner thereafter filed an urgent motion for the immediate
4

dissolution of the TRO, followed by a motion to dismiss Petrons petition for
prohibition.
On November 5, 2007, the trial court issued the assailed Order
granting Petrons petition for issuance of writ of preliminary injunction,
subject to Petrons posting of a P444,967,503.52 bond in addition to its
previously posted surety bond of P1,286,057,899.54, to complete the total
amount equivalent to the revised assessment of P1,731,025,403.06. The
trial court held that in scheduling the sale of the properties despite the
pendency of Petrons appeal and posting of the surety bond with the LBAA,
petitioner deprived Petron of the right to appeal. The dispositive portion
thereof, reads:
WHEREFORE, the writ of preliminary injunction prayed for by plaintiff is hereby
GRANTED and ISSUED, enjoining defendant Treasurer, her agents, representatives, or
anybody acting in her behalf from proceeding with the scheduled public auction of plaintiffs real
properties, or any disposition thereof, pending the determination of the merits of the main
action, to be effective upon posting by plaintiff to the Court of an injunction bond in the amount
of Four Hundred Forty Four Million Nine Hundred Sixty Seven Thousand Five Hundred Three
and 52/100 Pesos (P444,967,503.52) and the approval thereof by the Court.
Defendants Urgent Motion for the Immediate Dissolution of the
Temporary Restraining Order dated October 23, 2007 is hereby DENIED.

SO ORDERED.

From the said Order of the trial court, petitioner went directly to this
Court via the instant petition for certiorari under Rule 65 of the Rules of
Court.
5

The question posed in this petition, i.e., whether the collection of
taxes may be suspended by reason of the filing of an appeal and posting of
a surety bond, is undoubtedly a pure question of law. Section 2(c) of Rule
41 of the Rules of Court provides:
SEC. 2. Modes of Appeal.
(c) Appeal by certiorari. In all cases when only questions of law are
raised or involved, the appeal shall be to the Supreme Court by petition for
review on certiorari under Rule 45. (Emphasis supplied)

Thus, petitioner resorted to the erroneous remedy when she
filed a petition for certiorari under Rule 65, when the proper mode
should have been a petition for review on certiorari under Rule 45.
Moreover, under Section 2, Rule 45 of the same Rules, the period to
file a petition for review is 15 days from notice of the order appealed
from. In the instant case, petitioner received the questioned order of
the trial court on November 6, 2007, hence, she had only up to
November 21, 2007 to file the petition. However, the same was filed
only on January 4, 2008, or 43 days late. Consequently, petitioners
failure to file an appeal within the reglementary period rendered the
order of the trial court final and executory.
The perfection of an appeal in the manner and within the period
prescribed by law is mandatory. Failure to conform to the rules regarding
appeal will render the judgment final and executory and beyond the power
of the Courts review. Jurisprudence mandates that when a decision
becomes final and executory, it becomes valid and binding upon the parties
6

and their successors in interest. Such decision or order can no longer be
disturbed or reopened no matter how erroneous it may have been.
Petitioners resort to a petition under Rule 65 is obviously a play to
make up for the loss of the right to file an appeal via a petition under Rule
45. However, a special civil action under Rule 65 can not cure petitioners
failure to timely file a petition for review on certiorari under Rule 45 of the
Rules of Court. Rule 65 is an independent action that cannot be availed of
as a substitute for the lost remedy of an ordinary appeal, including that
under Rule 45, especially if such loss or lapse was occasioned by ones
own neglect or error in the choice of remedies.
Moreover, even if we assume that a petition under Rule 65 is the
proper remedy, the petition is still dismissible.
We note that no motion for reconsideration of the November 5, 2007
order of the trial court was filed prior to the filing of the instant petition. The
settled rule is that a motion for reconsideration is a sine qua non condition
for the filing of a petition for certiorari. The purpose is to grant the public
respondent an opportunity to correct any actual or perceived error
attributed to it by the re-examination of the legal and factual circumstances
of the case. Petitioners failure to file a motion for reconsideration deprived
the trial court of the opportunity to rectify an error unwittingly committed or
to vindicate itself of an act unfairly imputed. Besides, a motion for
reconsideration under the present circumstances is the plain, speedy and
adequate remedy to the adverse judgment of the trial court.
7

Petitioner also blatantly disregarded the rule on hierarchy of courts.
Although the Supreme Court, Regional Trial Courts, and the Court of
Appeals have concurrent jurisdiction to issue writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction, such concurrence
does not give the petitioner unrestricted freedom of choice of court forum.
Recourse should have been made first with the Court of Appeals and not
directly to this Court.
True, litigation is not a game of technicalities. It is equally true,
however, that every case must be presented in accordance with the
prescribed procedure to ensure an orderly and speedy administration of
justice. The failure therefore of petitioner to comply with the settled
procedural rules justifies the dismissal of the present petition.
Finally, we find that the trial court correctly granted respondents
petition for issuance of a writ of preliminary injunction. Section 3, Rule 58,
of the Rules of Court, provides:
SEC. 3. Grounds for issuance of preliminary injunction. A preliminary injunction may
be granted by the court when it is established:
(a) That the applicant is entitled to the relief demanded, and the
whole or part of such relief consists in restraining the commission or continuance
of the acts complained of, or in the performance of an act or acts, either for a
limited period or perpetually;
(b) That the commission, continuance or non-performance of the act
or acts complained of during the litigation would probably work injustice to the
applicant; or
(c) That a party, court, or agency or a person is doing, threatening, or
attempting to do, or is procuring or suffering to be done, some act or acts
probably in violation of the rights of the applicant respecting the subject of the
action or proceeding, and tending to render the judgment ineffectual.
8

The requisites for the issuance of a writ of preliminary injunction are:
(1) the existence of a clear and unmistakable right that must be protected;
and (2) an urgent and paramount necessity for the writ to prevent serious
damage.
The urgency and paramount necessity for the issuance of a writ of
injunction becomes relevant in the instant case considering that what is
being enjoined is the sale by public auction of the properties of Petron
amounting to at least P1.7 billion and which properties are vital to its
business operations. If at all, the repercussions and far-reaching
implications of the sale of these properties on the operations of Petron
merit the issuance of a writ of preliminary injunction in its favor.
We are not unaware of the doctrine that taxes are the lifeblood
of the government, without which it can not properly perform its
functions; and that appeal shall not suspend the collection of realty
taxes. However, there is an exception to the foregoing rule, i.e.,
where the taxpayer has shown a clear and unmistakable right to
refuse or to hold in abeyance the payment of taxes. In the instant
case, we note that respondent contested the revised assessment on
the following grounds: that the subject assessment pertained to
properties that have been previously declared; that the assessment
covered periods of more than 10 years which is not allowed under the
LGC; that the fair market value or replacement cost used by petitioner
included items which should be properly excluded; that prompt
payment of discounts were not considered in determining the fair
market value; and that the subject assessment should take effect a
year after or on January 1, 2008. To our mind, the resolution of these
9

issues would have a direct bearing on the assessment made by
petitioner. Hence, it is necessary that the issues must first be passed
upon before the properties of respondent is sold in public auction.
In addition to the fact that the issues raised by the respondent would
have a direct impact on the validity of the assessment made by the
petitioner, we also note that respondent has posted a surety bond
equivalent to the amount of the assessment due. The Rules of Procedure
of the LBAA, particularly Section 7, Rule V thereof, provides:
Section 7. Effect of Appeal on Collection of Taxes. An appeal shall not suspend the
collection of the corresponding realty taxes on the real property subject of the appeal as
assessed by the Provincial, City or Municipal Assessor, without prejudice to the subsequent
adjustment depending upon the outcome of the appeal. An appeal may be entertained but the
hearing thereof shall be deferred until the corresponding taxes due on the real property subject
of the appeal shall have been paid under protest or the petitioner shall have given a surety
bond, subject to the following conditions:

(1) the amount of the bond must not be less than the total realty taxes
and penalties due as assessed by the assessor nor more than double said
amount;

(2) the bond must be accompanied by a certification from the
Insurance Commissioner (a) that the surety is duly authorized to issue such
bond; (a) that the surety bond is approved by and registered with said
Commission; and (c) that the amount covered by the surety bond is within the
writing capacity of the surety company; and

(3) the amount of the bond in excess of the surety companys writing
capacity, if any, must be covered by Reinsurance Binder, in which case, a
certification to this effect must likewise accompany the surety bond.
10


Corollarily, Section 11 of Republic Act No. 9282, which amended
Republic Act No. 1125 (The Law Creating the Court of Tax Appeals)
provides:
Section 11. Who may Appeal; Mode of Appeal; Effect of Appeal; -
x x x x
No appeal taken to the Court of Appeals from the Collector of Internal
Revenue x x x shall suspend the payment, levy, distraint, and/or sale of any
property for the satisfaction of his tax liability as provided by existing law.
Provided, however, That when in the opinion of the Court the collection by
the aforementioned government agencies may jeopardize the interest of the
Government and/or the taxpayer the Court at any stage of the processing may
suspend the collection and require the taxpayer either to deposit the amount
claimed or to file a surety bond for not more than double the amount with the
Court.

WHEREFORE, in view of all the foregoing, the instant petition is
DISMISSED.


11

EXECUTIVE SUMMARY
1

Emerlinda S. Talento, in her capacity as the Provincial Treasurer of the Province
of Bataan vs. Hon. Remigio M. Escalada, Jr., Presiding Judge of the Regional Trial
Court of Bataan, Branch 3 and Petron Corporation, Supreme Court, Third
Division, G. R. No. 180884.
Introduction
1. In the Decision dated 27 June 2008, as reiterated in the Resolution dated 8
September 2008 dismissing the 1st Motion for Reconsideration (MR) in the above-
captioned, the SC set forth the ruling that taxpayers can defer payments of real estate
tax by simply filing 1) an appeal with the Local Board of Assessment Appeals and 2) a
Petition for Prohibition with the Regional Trial Court and by posting a surety bond.
2. This ruling has extremely serious implications, not only to the LGUs of Bataan, but all
over the country. It practically amended, through judicial legislation, the expressed
provisions of the Local Government Code (LGC) of 1991 that a taxpayer cannot defer
and must first pay to the LGU the real estate tax due before any appeal can be
entertained.
3. Thus, LGUs will no longer receive cash payments from real estate tax collections as
they fall due but merely surety bonds, which have no immediate use to LGUs. One-half
of the proceeds of RPT accrues to the general funds of provinces, cities, municipalities
and barangays, while the other half accrues to the Special Education Fund of their Local
School Boards. With such erroneous ruling, LGUs and ultimately the people are bound
to suffer, particularly the children from poor families who go to public schools.
Summary of the Relevant Facts:
(1) On 18 June 2007, Petron received from the Provincial Assessors Office of
Bataan a notice of revised assessment for deficiency real property tax for Petrons
machineries and equipment in Lamao, Limay, Bataan in the amount of
PhP1,731,025,403.06 due from 1994 up to the 2
nd
quarter of 2007.
(2) On 17 August 2007, Petron filed a petition with the Local Board of Assessment
Appeals (LBAA) contesting the revised assessment.
(3) On 22 August 2007, Petron received from Petitioner (the Provincial Treasurer of
Bataan) a final notice of delinquent real property tax with warning that the subject
properties would be levied and auctioned should Petron fail to settle the revised
assessment.
(4) Petron wrote a letter to Petitioner stating that in view of the pendency of the
appeal with the LBAA, any action on the subject properties would be premature.
12

Petitioner replied that only payment by Petron under protest shall bar the collection of
the taxes due, pursuant to Sections 231 and 252 of the Local Government Code.
(5) Subsequently a Warrant of Levy was issued against machinery and equipment of
Petron.
(6) Petron filed with the LBAA on 24 September 2007 an urgent motion to lift final
notice of delinquent real property tax and Warrant of Levy.
(7) On 3 October 2007, Petron received a notice of sale of its properties scheduled
on 17 October 2007.
(8) Petron subsequently merely withdrew its motion to lift final notice of delinquency
and Warrant of Levy with the LBAA on 8 October 2007. On the same date, Petron filed
with the Regional Trial Court of Bataan the present case (Civil Case No. 8801) against
Petitioner for prohibition with prayer for issuance of temporary restraining order and
preliminary injunction. (NOTE: To avoid questions of forum shopping, what Petron
should have done was to first withdraw its appeal entirely from the LBAA and then file
the Petition for Prohibition with the RTC.)
(9) Civil Case No. 8801 was filed by Petron with the RTC while its petition with the
LBAA was still pending. Subsequently, the LBAA dismissed Petrons petition on the
ground of forum shopping.
(10) On 15 October 2007, the RTC issued a TRO for 20 days enjoining Petitioner from
proceeding with the public auction of Petrons properties.
(11) Petitioner filed an urgent motion for the immediate dissolution of the TRO as well
as motion to dismiss Petrons petition for prohibition.
(12) On 5 November 2007, the RTC issued the Order granting Petrons petition for the
issuance of the writ of preliminary injunction subject to Petrons posting of a PhP
444,967,503.52 bond in addition to its previously posted surety bond of
PhP1,286,057,899.54.
(13) In view of the urgent nature of the case and the patently illegal order of the RTC,
which was Order was tainted with grave abuse of discretion, Petitioner no longer filed a
Motion for Reconsideration of the Order dated 5 November 2007.
(14) On 4 January 2008, Petitioner filed the present Petition for Certiorari, Prohibition
and Mandamus (G.R. No. 180884) with the Supreme Court, as an exception to the rule
on hierarchy of courts, to annul and set aside the Order of the RTC dated 5 November
2007 to permanently enjoin the RTC from further proceeding with Civil Case No. 8801.
(15) All of the foregoing actions of the Petitioner were consistent with law, particularly
with the Local Government Code, contrary to Petrons allegations.
13

Issue raised in the Petition for Certiorari, Prohibition and Mandamus:
Whether or not the RTC acted without or in excess of its jurisdiction and with grave
abuse of discretion in causing the issuance of the writ of preliminary injunction that
effectively renders nugatory the express provisions of Sections 252 and 231 of the
Local Government Code.
Summary of The Supreme Courts Decision dated 27 June 2008:
1. In the Decision of the Supreme Court dated 27 June 2008, penned by Justice
Consuelo Ynares-Santiago, regarding the above-stated Petition for Certiorari
(G.R. No. 180884), it was held that the question posed in the Petition, i.e.,
whether the collection of taxes may be suspended by reason of filing of an
appeal and posting of a surety bond, is a question of law.
2. The Decision stated that Petitioner resorted to an erroneous remedy when she
filed a Petition for Certiorari under Rule 65, when the proper mode should have
been a Petition for Review under Rule 45.
3. Under Rule 45, the period to file a Petition for Review is 15 days from receipt of
the Order appealed from. The Decision stated that the present Petition was filed
beyond the said 15 day period as it was filed 43 days late.
4. The Decision further stated that, even on the assumption that a petition under
Rule 65 is the proper remedy, the present petition is still dismissable. It was
noted that Petitioner did not file a Motion for Reconsideration with the RTC prior
to the filing of the present Petition with the Supreme Court.
5. The Decision likewise stated that Petitioner disregarded the hierarchy of courts,
and that the present Petition should have been filed with the Court of Appeals
instead of directly filing the same to the Supreme Court.
6. The Decision went on to state that the RTC correctly granted Petrons petition for
issuance of a writ of preliminary injunction based on Section 3, Rule 58 of the
Rules of Court.
7. It was stated that there was urgency and paramount necessity for the issuance of
the writ of injunction considering that what is being enjoined is the sale by public
auction of 1.7 Billion Pesos worth of Petrons properties which are vital to
Petrons operations.
8. The Decision also stated in essence that Petron had a clear and unmistakable
right to refuse or to withhold in abeyance the payment of the taxes. Citing the
grounds used by Petron in contesting the revised assessment, the Decision
stated that the resolution of the said issues would have a direct bearing on the
assessment made by Petitioner, and that it is necessary that the issues must be
first passed upon before the properties of respondent is sold at public auction.
14

Courses of Action Taken by Petitioner in light of the said Decision Supreme Court dated
27 June 2008:
1. Petitioner filed with the Supreme Court a Motion for Reconsideration of the
Decision dated 27 June 2008. This Motion for Reconsideration was denied by the
Supreme Court in a minute resolution dated 8 September 2008.
2. Petitioner filed a Motion to Refer the Case to the Court en Banc. This is due to
the fact that the Decision dated 27 June 2008 has in effect abandoned
established jurisprudence that Rule 65 is the remedy for interlocutory orders such
as the issuance of a writ of preliminary injunction, and the ruling in Manila Electric
Company vs. Barlis (G.R. No. 114231, 18 May 2001) that the trial court has no
jurisdiction to entertain a Petition for Prohibition absent petitioners payment,
under protest, of the tax assessed. This motion was likewise denied in the said
resolution dated 8 September 2008.
Comments on the Decision of the Supreme Court dated 27 June 2008.
Re: On the finding in the Decision dated 27 June 2008 that Petitioner resorted to an
erroneous remedy when she filed a Petition for Certiorari under Rule 65, when the
proper mode should have been a Petition for Review under Rule 45.
COMMENT:
1. The Order of the RTC granting the writ of preliminary injunction prayed for by
Petron was an interlocutory order. Hence, Petitioner may validly file a Petition for
Certiorari under Rule 65 to question the legality of such order of the RTC.
2. In the 7 August 2007 Supreme Court Decision entitled United Overseas Bank
(formerly Westmont Bank) vs. Hon. Judge Reynaldo Rios, Presiding Judge
of the Regional Trial Court of Manila, Branch 33, and Rosemoor Mining and
Development Corporation, G.R. No. 171532, it was confirmed that a petition
for certiorari under Rule 65, and not Rule 45, is the proper remedy for
interlocutory orders.
3. In the Supreme Court Decision dated 5 August 2003 which was penned by
Justice Consuelo Ynares-Santiago herself, entitled Land Bank of the
Philippines vs. Severino Listana, Jr., G. R. 152611, the Supreme Court
specifically provided that an order granting a writ of preliminary injunction is
an interlocutory order. Being an interlocutory order, a special civil action for
certiorari under Rule 65 is a proper remedy.
4. In light of the established jurisprudence on the matter, it is extremely surprising
why the subject Decision dated 27 June 2008 ruled that Petitioner availed of the
wrong remedy under Rule 65. The said Decision runs counter to and in effect
abandons prevailing jurisprudence that interlocutory orders, such as an order
15

granting a writ of preliminary injunction, may be questioned in a higher court by
way of Certiorari under Rule 65.
Re: On the finding that the Petition is fatally defective due to Petitioners failure to file a
Motion for Reconsideration of the RTCs Order dated 5 November 2007.
COMMENT:
1. While it may be true that the general rule is that a motion for reconsideration is a
condition sine qua non for the filing of a petition for certiorari, such rule
nevertheless is subject to recognized exceptions. The Petition for Certiorari,
Prohibition and Mandamus filed by Petitioner specifically alleged that it falls
within such recognized exceptions to the general rule. As such, it was pointed out
in the said Petition that resort to the Supreme Court without filing of a motion for
reconsideration was dictated by considerations of urgency, and that the issues
raised are purely legal in nature.
2. In the case of Indiana Aerospace University vs. Commission on Higher
Education, G.R. No. 139371, cited in Petitioners Motion for Reconsideration,
the recognized exceptions to the general rule are: (a) the issues raised are purely
legal in nature; (b) public interest is involved; (c) extreme urgency is obvious; (d)
special circumstances that warrant immediate or more direct action. The case
involves the collection of taxes due the local government unit in the amount of
1.7 Billion Pesos and the writ of preliminary injunction has deprived the local
government unit the right to immediately collect such real property taxes to the
detriment of its constituents. Not only was there urgency involved, but public
interest was likewise a principal consideration.
3. In view of the foregoing reasons, the Decision should have allowed the Petition to
fall under the exception to the general rule on the requirement of a motion for
reconsideration.
Re: On the finding that Petitioner disregarded the rule on hierarchy of courts.
COMMENT:
1. The Decision dated 27 June 2008 likewise faulted Petitioner for filing the Petition
directly to the Supreme Court instead of having the same filed with the Court of
Appeals. Again, such rule on hierarchy of courts is subject to certain exceptions.
The present Petition is one such exception.
2. There are compelling reasons to file the Petition directly to the Supreme Court.
The case has far reaching implications on the right of local government units to
collect real property taxes that it can use for public services and to finance the
cost of public education. The resolution of the issue of whether or not a trial court
can prohibit a local government unit to collect real property taxes, despite
provisions in the Local Government Code favoring such power of the local
16

government units, will affect not only the Province of Bataan, but all local
government units in the country as well. It will have significant importance on the
finances and economic viability of all local government units.
Re: On the finding that the RTC correctly granted Petrons petition for issuance of a writ
of preliminary injunction.
COMMENT:
1. The Decision declared that there was urgent and paramount necessity for the
issuance of the writ of injunction considering that what is being enjoined is the
sale by public auction of the properties of Petron amounting to 1.7 Billion Pesos,
which properties are vital to Petrons operation.
2. However, there is no urgent and paramount necessity on the part of Petron. Even
assuming that the properties are sold by the Province of Bataan by public
auction, under Section 261 of the Local Government Code, Petron has the right
to redeem the properties within one (1) year from the date of the sale. During
such one (1) year period, Petron shall have possession of the subject properties
and Petron shall be entitled to the income and other fruits thereof. In light of this,
Petrons operations will not be immediately affected. As such, there is no urgent
and paramount necessity for the issuance of the writ of preliminary injunction.
3. The Decision in essence also declared that Petron has a clear and unmistakable
right to refuse or hold in abeyance the payment of the taxes. In support of this,
the Decision cited the grounds relied upon by Petron in contesting the revised
assessment. The Decision then stated that the resolution of the grounds raised
by Petron would have a direct bearing on the assessment made by Petitioner
and that it is necessary that the issues must first be passed upon before the
properties of respondent is sold at public auction.
4. It should be noted however that the RTC, in its Order dated 5 November 2007, in
justifying the issuance of the writ of preliminary injunction, used as basis the
provisions of Section 267 of the Local Government Code. Section 267 provides
that:

SEC. 267. Action Assailing Validity of Tax
Sale. - No court shall entertain any action
assailing the validity of any sale at public
auction of real property or rights therein
under this Title until the taxpayer shall
have deposited with the court the
amount for which the real property was
sold, together with interest of two percent
(2%) per month from the date of sale to the
time of the institution of the action. The
amount so deposited shall be paid to the
17

purchaser at the auction sale if the deed is
declared invalid but it shall be returned to
the depositor if the action fails. Neither shall
any court declare a sale at public auction
invalid by reason of irregularities or
informalities in the proceedings unless the
substantive rights of the delinquent owner of
the real property or the person having legal
interest therein have been impaired.
5.
6. The above-quoted Section 267 specifically applies to a case where the property
has already been sold at public auction due to delinquency for real property tax.
It does not apply in the present case where the property has not yet been sold. It
was patently erroneous for the RTC to use Section 267 as legal basis for
granting the writ of preliminary injunction in favor of Petron. Such act of the RTC
amounts to excess of jurisdiction as the RTC overstepped its lawful authority.
There was likewise grave abuse of discretion as such patently erroneous use by
the RTC of Section 267 as basis is capricious, whimsical, arbitrary or despotic in
manner, and is in effect equivalent to lack of jurisdiction.
7. The patently erroneous reliance by the RTC on Section 267 of the Local
Government Code is one indication that there was no clear and unmistakable
right in favor of Petron. Despite this, the Decision dated 27 June 2008 still
validated the writ of preliminary injunction granted by the RTC to Petron.
8. On the other hand, Sections 252 and 231 of the Local Government Code gives
the clear and unmistakable right to Petitioner to collect the real property taxes
due. Under Section 252, no protest shall be entertained unless the taxpayer first
pays the tax. Under Section 231, appeal on assessments of real property shall in
no case suspend the collection of the corresponding realty taxes on property.
9. In Manila Electric Company vs. Barlis, G.R. No. 114231, 18 May 2001, the
Supreme Court, interpreting a provision in the previous Real Property Tax Code
which similar to Section 252 of the Local Govt. Code, held that the trial court has
no jurisdiction to entertain a Petition for Prohibition absent petitioners payment,
under protest of the tax assessed as required by Section 64 of the RPTC. It is
our view that this ruling is still valid despite the passage of the Local Government
Code as the reason behind the law remains the same. In view of this ruling, the
RTC had no authority to grant the writ of preliminary injunction in favor of Petron.
This is another basis for stating that Petron had no clear and unmistakable right.
10. Even assuming that there is doubt in the interpretation of Sections 252 and 231
of the Local Government Code, such doubt should have been resolved in favor of
the LGU. Section 5 (a), Chapter 1, Title 1 of the Local Government Code
provides that in the interpretation of the provisions of the same, any provision on
a power of a local government unit shall be liberally interpreted in its favor, and in
18

case of doubt, any question thereon shall be resolved in favor of devolution of
powers and of the local government unit. If further provides that any fair and
reasonable doubt as to the existence of the power shall be interpreted in favor of
the local government unit concerned. This was no longer taken into consideration
in the Decision.
11. The amount of deficiency real estate tax due Petron was in fact arrived at
following data supplied by Petron itself. Such data consisting of annual
acquisition costs of machineries can be seen from the printed copies of the
electronic email of one Arvin Frank C. Daquiog of the Government Reports and
Compliance Controllers Department of Petron and the attached computation/data
send on 20 March 2007 to the Bataan Provincial Assessor. (Annexes A-MR and
B-MR of Petitioners Motion for Reconsideration) The said data from Petron
itself show that the Sworn Statement of the True Value of the Real Properties
previously submitted by Petron was grossly understated. In light of this, it is an
error to rule that Petron had a clear and unmistakable right to hold in abeyance
the payment of real property tax.
Re: On the issue of forum shopping committed by Petron, which was not discussed and
was not ruled upon in the Decision of the Supreme Court.
COMMENT:
1. The Petition of Petron with the RTC (Case No. 8801) was filed while Petrons
Petition with the LBAA is pending. The case with the RTC and the LBAA filed by
Petron involved an identity of parties, identity of rights asserted and reliefs
prayed for, and a decision on one case will amount to res adjudicata. Petron was
therefore guilty of forum shopping.
2. The issue of forum shopping was squarely raised by Petitioner in the Petition for
Certiorari, Prohibition and Mandamus. On account of such forum shopping, the
RTC should have dismissed the complaint of Petron entirely. Instead, the RTC
even issued the subject writ of preliminary injuction.
3. The LBAA has in fact dismissed the Petition of Petron on account of such forum
shopping committed by Petron.
4. However, the Decision dated 27 June 2008 never mentioned anything about this
issue of forum shopping.
5. Per the ruling of the Supreme Court in City Government of Quezon City vs.
Bayan Telecommunications, Inc., G.R. No. 162015, 6 March 2006, the proper
procedure is to first withdraw the appeal from the LBAA and then file the Petition
for Prohibition with the RTC. However, Petron did not comply with this and
instead maintained the LBAA case while it filed the RTC case in violation of the
rule against forum shopping and multiplicity of suits based on a single cause of
action.
19

TALENTO vs. ESCALDA JR.,
G.R. No. 180884, June 27, 2008
Facts:
This is a petition for certiorari under Rule 65 of the Rules of Court assails the
November 5, 2007 Order of the RTC of Bataan granting the petition for the issuance of
a writ of preliminary injunction filed by Petron enjoining petitioner Emerlinda S. Talento,
Provincial Treasurer of Bataan, from proceeding with the public auction of Petrons
machineries and pieces of equipment during the pendency of the latters appeal from
the revised assessment of its properties.
Petron received from the Provincial Assessors Office of Bataan a notice of
revised assessment over its machineries and pieces of equipment giving them a period
of 60 days within which to file an appeal with the Local Board of Assessment Appeals
(LBAA). Based on said revised assessment, Petron has as of June 30, 2007, its total
liability is P1,731,025,403.06, representing deficiency real property tax due from 1994
up to the first and second quarters of 2007.
Petron contested with the LBAA the revised assessment on the grounds:
a. That the subject assessment pertained to properties that have been
previously declared;
b. That the assessment covered periods of more than 10 years which is not
allowed under the Local Government Code (LGC).
c. That the fair market value or replacement cost used by petitioner included
items which should be properly excluded; that prompt payment of
discounts were not considered in determining the fair market value;
d. and that the subject assessment should take effect a year after or on
January 1, 2008.
Petitioner issued a Warrant of Levy against its machineries and pieces of
equipment.
Petron argued that view of the pendency of its appeal with the LBAA, any action
by the petitioner would be premature.
Petitioner replied that only Petrons payment under protest shall bar the collection
of the realty taxes due, pursuant to Sections 231 and 252 of the LGC.
Petron filed with the RTC of Bataan for prohibition with prayer for the
issuance of a temporary restraining order (TRO) and preliminary injunction. the
RTC issued a TRO enjoining petitioner from proceeding with the public auction of
Petrons properties. The trial court held that in scheduling the sale of the properties
despite the pendency of Petrons appeal and posting of the surety bond with the LBAA,
petitioner deprived Petron of the right to appeal.
20

ISSUE:
WON the collection of taxes may be suspended by reason of the filing of an
appeal and posting of a surety bond, is undoubtedly a pure question of law?
HELD:
YES.
We are not unaware of the doctrine that taxes are the lifeblood of the
government, without which it can not properly perform its functions; and that appeal
shall not suspend the collection of realty taxes. However, there is an exception to the
foregoing rule, i.e., where the taxpayer has shown a clear and unmistakable right to
refuse or to hold in abeyance the payment of taxes.
Section 11 of Republic Act No. 9282, which amended Republic Act No. 1125
(The Law Creating the Court of Tax Appeals) provides:
Section 11. Who may Appeal; Mode of Appeal; Effect of Appeal; -
x x x x
No appeal taken to the Court of Appeals from the Collector of
Internal Revenue x x x shall suspend the payment, levy, distraint, and/or
sale of any property for the satisfaction of his tax liability as provided by
existing law. Provided, however, That when in the opinion of the
Court the collection by the aforementioned government agencies may
jeopardize the interest of the Government and/or the taxpayer the Court at
any stage of the processing may suspend the collection and require the
taxpayer either to deposit the amount claimed or to file a surety bond for
not more than double the amount with the Court.
In the instant case, we note that respondent contested the revised assessment
on the following grounds: that the subject assessment pertained to properties that have
been previously declared; that the assessment covered periods of more than 10 years
which is not allowed under the LGC; that the fair market value or replacement cost used
by petitioner included items which should be properly excluded; that prompt payment of
discounts were not considered in determining the fair market value; and that the subject
assessment should take effect a year after or on January 1, 2008. To our mind, the
resolution of these issues would have a direct bearing on the assessment made by
petitioner. Hence, it is necessary that the issues must first be passed upon before the
properties of respondent is sold in public auction.