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Justice Antonio T. Carpio (Ret.)

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Can Marcos Jr. be disqualified?

Section 12 of the Omnibus Election Code disqualifies from running for any elective public position, including for President, anyone who has been convicted by final judgment of “any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude.”

Ferdinand R. Marcos Jr. recently filed his certificate of candidacy for President in the May 2022 national elections. Marcos Jr. was charged in 1992 before the Quezon City Regional Trial Court for violation of Sections 45 and 50 of the Tax Code for failure to file his income tax returns for 1982 to 1985 as well as for failure to pay the proper income taxes for those years. Section 255 of the Tax Code provides that anyone convicted of failure to file tax returns or failure to pay the proper taxes shall be “punished by a fine of not less than ten thousand pesos (P10,000.00) and suffer imprisonment of not less than one (1) year but not more than ten (10) years.” The law mandates a penalty of both fine and imprisonment.

In 1995, the trial court convicted Marcos Jr. and imposed on him the following penalty, among others: (1) “To serve imprisonment of three (3) years and pay a fine of P30,000.00 in Criminal Cases Nos. Q-91-24391 for failure to file income tax return for the year 1985”; and (2) “To serve imprisonment of three (3) years and pay a fine of P30,000.00 in Criminal Case No. Q-91-24390 for failure to pay income tax for the year 1985.”

Marcos Jr. appealed to the Court of Appeals (CA), which in 1997 affirmed the decision of the trial court with modification. The CA rendered a decision “FINDING (Marcos Jr.) guilty beyond reasonable doubt of violation of Section 45 of the NIRC for failure to file income tax returns for the taxable years 1982 to 1985 in Criminal Cases Nos. Q-91-24391, Q-93-29212, Q-93-29213, Q-93-29217.” The CA ordered Marcos Jr. to pay the corresponding deficiency taxes, penalties, and fine. Inexplicably, despite finding Marcos Jr. guilty of failure to file his income tax returns from 1982 to 1985, the CA imposed on Marcos Jr. only a fine without any imprisonment, despite the clear mandatory requirement of the Tax Code that the penalty shall be both a fine and imprisonment.

Marcos Jr. filed a notice of appeal to the Supreme Court but shortly thereafter withdrew his appeal, probably on the realization that the Supreme Court would most likely correct the error of the CA and impose the corresponding penalty of imprisonment. The Supreme Court granted Marcos Jr.’s motion to withdraw on Aug. 8, 2001 since the Solicitor General did not file his own appeal. Consequently, the decision of the CA convicting Marcos Jr. became final and executory.

Marcos Jr. cannot now be disqualified on the ground that he was sentenced to imprisonment for more than 18 months because there is no such sentence by the CA. However, a case can be made out that the repeated failure to file income tax returns from 1982 to 1985 amounts to moral turpitude. While the failure to file a tax return for one year may not evince an intent to evade payment of income taxes, the repeated failure to file income tax returns for several years can evince an intent to evade such payment, amounting to moral turpitude. The Supreme Court did opine in a related case that Marcos Jr.’s failure to file his income tax returns did not amount to moral turpitude. This was, however, merely an obiter since the Court in the same case admitted that the conviction of Marcos Jr. was then still under appeal.

Any disqualification case against Marcos Jr. based on conviction of a crime involving moral turpitude will be decided by the Commission on Elections and the Supreme Court on the narrow ground of whether his repeated failure to file income tax returns constitutes moral turpitude. However, as far as the voting public is concerned, such disqualification on the ground of moral turpitude will be viewed on the overall conduct of Marcos Jr., including his claim to the $658 million Swiss account of his father despite clear proof it constitutes ill-gotten wealth, and his refusal to pay the P203.8 billion estate tax liability of his father’s estate.

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