Thursday, April 19, 2012

RESEARCH PAPER ON MAKATI CITY ORDINANCE NO. 2001-108

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MAKATI Mayor Jejomar Binay has found a novel way to document and tax the considerable underground income of landlords and property owners within the countrys premiere city. This is through Makati City Ordinance No. 001-108 which was passed by the city’s council on December 6, 001. From the Whereasses, it seems that the ordinance was in reaction to the observation (it was not mentioned in the ordinance who made that observation) that most lessors and sublessors in Makati City fail and/or refuse to pay the lessors’ tax in accordance with the Makati Revenue Code. Though many speculates that it was a by-product of Binay’s need to raise revenues over allegations that the new, imposing City Hall that Binay built has exceeded the original cost estimate by a mile.


Members of city’s council, led by Vice Mayor & Presiding Officer Ernesto Mercado, believe that the new Makati ordinance, which aims to widen the citys tax base, would flush out previously undocumented real estate income and subject them to Makatis lessors tax, which is equivalent up to a maximum of /4 of one percent of the propertys yearly gross revenues. This ordinance was therefore passed to reinforce Chapter III Section A.0 (k) paragraph of the Makati Revenue Code, which imposes lessors tax on owners of real estate including accessories, apartels, lodging houses, apartments, condominiums, houses for lease, rooms and spaces for rent, and similar places.


The ordinance required the owners and administrators of land, houses and buildings in Makati City to submit to the office of the mayor every year within the first 0 days of January a written declaration under oath stating whether or not their property is being leased or rented to other persons or corporations. Together with the sworn declaration, they were supposed to also submit a copy of the lease contract with a copy furnished to the barangay office where the property is located.


First and second time violators are to be penalized with a fine of P5,000 for every violation; third time violators may be imprisoned for 15 days or fined as the court, in its discretion, may determine. The ordinance did not find it necessary to impose a penalty for fourth time violators. Obviously, the fear of the Law ensures that violators will not go beyond tempting the fates a third time.


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The new ordinance, which was enacted on third and final reading by a unanimous vote of the city’s council members who were present in that special session, had caught a number of building and homeowners unaware. It was reported that most building administrators and residents received copies of the new ordinance and survey form only a week before its scheduled implementation.


Since that was the first time that the ordinance was implemented (and perhaps due to its constituents’ protests), City Hall had extended the submission of the lease contracts up to the last working day of March this year.


The council ensures proper monitoring of the ordinance by requiring all the Barangay Chairman to make an annual inventory of all leased/rented lands, houses and/or buildings located within their respective barangays, based on the declaration under oath submitted by the owners or administrators. The annual inventory shall be submitted to the City Administrator within every first week of April of the current year. Any Barangay Chairman, who failed and/or refused to submit an inventory, after proper notice and hearing, would be required to explain why no disciplinary action should be taken against him.


The said ordinance received mixed reactions from different sectors.


Property owners in Makati believed that this ordinance is another “pain on their backs”. Not much of a problem for big time corporate realty companies who, in the first place, cannot avoid paying taxes on rentals as mandated by Makati Revenue Code. The sector that would received the greatest impact is the small time renters, people who were able to scrape some lifetime savings from the rapidly diminishing value of their salaries, and, with the little saved, decided to buy a small lot which was then looked upon as source of rental income on which to live in their twilight years.


These people do not pay the lessors’ tax because, in their heart of hearts, they feel that the combined tax take of the government, local and national, is just too much for them to bear. For most owners of this category, their small apartments represent savings, in much the same way that the money they had saved with the banks is savings. They are not really in the rental business in exactly the same way that bank depositors are not in the lending business. They are where they are because for them, rentals, like interest on bank deposits, are regular, dependable, and reasonable fruits of the little that they own.


Consequently, there is reason to treat rental income in the same way that interest from bank deposits is treated. They feel that it is more just to subject them to a final income tax of 0 percent at the national level and be done with it. They hoped to be spared from the hassle of big time leasing like keeping records, charging depreciation, etc. because they are not big time in the first place. They are clamoring to be exempted from the municipal lessors tax and be freed from the tedium of complying with Ordinance No. 001-108 and its kind.


On the other hand, Commissioner Rene Bañez of the Bureau of Internal Revenue expressed elation over the Binay-inspired move. Bañez recalled that during the Aquino years, then BIR Commissioner Jose Ong was foiled by a court-issued TRO from obtaining copies of homeowners lists from Makatis exclusive villages and condominiums. Bañez said he would ask the Makati government, through the Department of Interior and Local Governments, a copy of the survey results so the BIR could compare the lease declarations with the income tax declarations of the property owner.


The Makati government’s initiative of implementing a new method of collecting lessors tax is in accordance with the local government code. 187 Constitution included specific provisions guaranteeing autonomy to local governments. Among the major state policies articulated was the policy that “The State shall ensure the autonomy of local governments.” It was towards operationalizing this policy that the constitution mandated Congress to legislate a Local Government Code that would devolve substantial political and administrative authorities to local government units (LGUs) long held hostage by the central authorities.


The enactment of the Code was welcomed by most sectors of society. It finally transferred the responsibility for the delivery of basic services to the local government units, including appropriate personnel, assets, equipment, programs and projects.


One of the major features of the Code that the case of City Ordinance No. 001-108 showcases is the increase in the financial resources available to local government units by broadening their taxing powers. The Code also increases the elbow room of local governments to generate revenues from local fees and charges.


Indeed, at the end of the day, local autonomy would mean less reliance upon national government, including ‘allotments’ made by the national government, and increased reliance upon internally generated resources, or resources jointly generated with other institutions, be they are other local government units, private institutions, etc. It is within this context that the Code encourages LGUs to be more aggressive and entrepreneurial. “Going into business” with the private sector and, where appropriate, adapting private sectors strategies, techniques and technologies to generate resources are encouraged by the Code. These enable them to deliver the much needed basic services to the people.


In addition to this, it is mostly through the processes of devolution that empowerment through decentralization is operationalized. More specifically, these modes of decentralization empower local communities through their local governments and provide them opportunities to be heard � and participate � in public decision making institutions and processes. In other words, accountabilities are more pronounced under devolved regimes.


Ordinance No. 001-108 best exemplified some of the advantages of devolution.


First, it frees the national leaders from onerous details and unnecessary involvement in local issues. In this case, since the city’s council noticed the problem of inefficient lessors tax collection specifically in their place of jurisdiction, an ordinance that best suit their needs and condition was made.


Second, it facilitates coordination and expedites action at the local level. This means that the local government unit can do something about the problem at the timing that the severity of the problem requires. Since the city’s council believe that the problem of inefficient lessors tax collection needs immediate action, a special session was held for this purpose.


Third, it increases the people’s understanding and support of social and economic development activities. Since the area of implementation of this ordinance is relatively small (a city compare to the whole country), its enforcement can be easily monitored.


Fourth, it increases popular capacity to ensure responsibility and accountability. In this case, the city’s council tapped the barangay officials to do the monitoring in their respective area of responsibility. They are also held liable for non-implementation of the said ordinance.


Fifth, it enables participation and easy access to decision points and improves delivery of service by allowing careful consideration of local needs. This advantage was best displayed when the city administrators extended the deadline for the submission of lease contracts. This is to give a lee-way to property owners to prepare their documents since the ordinance caught them unaware. Devolution in local government units allows the city administrators to easily adjust an ordinance to better accommodate the majority of its constituents.


And lastly, devolution encourages invention and innovation. This ordinance is said to be the first of its kind in the country, and a number of BIR officials hailed this idea.


In all these, one thing has emerged that the devolution is working and that the local autonomy has brought about creativity, imagination, and innovation at the local level.





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