Comelec didn't say failure to file ITR not punishable offense, spox Jimenez clarifies

The Commission on Elections (Comelec) clarified Friday it is not saying failure to file an income tax return is not a punishable offense following the dismissal of the disqualification case against presidential aspirant Ferdinand "Bongbong" Marcos Jr.

The Comelec First Division's ruling had indicated that Marcos' failure to file income tax returns in 1982 to 1985 was not a crime which involved moral turpitude.

Comelec spokesperson James Jimenez explained this has been taken out of context, saying there was a point being made in this portion of the decision.

"What they're doing is that they're taking that particular line out of context 'di ba? Sinabi talaga 'yan. The decision does say that but the decision was saying that in the context trying to explain between a crime mala in se versus mala prohibitum," Jimenez said at a virtual presser.

"This is a very important criminal law principle. What it says is that a crime mala in se is a crime that is by itself naturally wrong. For example murder, you don't need a law to tell you that murder is wrong. But there are some offenses that are mala prohibita, which means they are considered wrong under the law, only because a special law exists that criminalizes it. For example, cutting down a tree, cutting down a tree is not inherently wrong but because there's a law that says cutting down a tree is wrong then it becomes wrong," he added.

He said it is wrong to say that the poll body is saying that an individual's failure to file an ITR is not a punishable offense.

"The Comelec is not saying that failure to file an ITR is okay because it is not. Also, very important to emphasize, failure to file an ITR is not in itself necessarily tax evasion, these are two different offenses punished differently under the law," Jimenez said.

The Comelec official also said the poll body even mentioned the existence of a law against the non-filing of an ITR.

"Even in the decision itself, the Comelec points out that in fact, a special law was passed to penalize failure to file ITR. So it is wrong to say that the Comelec is saying na walang offense ang failure to file ng ITR because the Comelec said mayroon nga eh," Jimenez said.

The 41-page ruling penned by Commissioner Aimee Ferolino states that the failure to file tax returns was neither immoral nor did it involve fraud.

"Is the failure to file tax returns inherently immoral? We submit that it is not. The failure to file tax returns is not inherently wrong in the absence of a law punishing it," the ruling said.

"Was there fraud in the failure to file income tax returns of respondent? We don't think so," it added.

Citing the case of Jose B. Aznar vs. Court of Tax Appeals, the Comelec said the Supreme Court considered the failure to file income tax returns "a mere omission on the part of the taxpayer, thereby removing it from the ambit of acts that constitute fraud."

The consolidated disqualification cases against Marcos which was handled by the First Division became controversial when Commissioner Rowena Guanzon said  there has been an 'unreasonable delay' in the release of the decision, claiming there were efforts to influence the commissioners.

Ferolino, however, accused Guanzon of trying to influence her decision on the said cases.

Prior to her retirement, Guanzon had already released her separate opinion where she voted for Marcos’ disqualification as she believes that the non-filing of income tax returns for four consecutive years constitutes moral turpitude.—AOL, GMA News