THE Philippine Statistics Authority (PSA) said the average farmgate price of palay, or unmilled rice, rose 0.2% week-on-week in the fifth week of June to P17.88 per kilogram (kg).
According to the PSA’s weekly price update for palay, rice and corn, the average wholesale price of well-milled rice fell 0.1% week-on-week to P39.28 per kg. At retail, it also fell 0.02% to P42.91.
The wholesale price of regular-milled rice rose 0.2% week-on-week to P35.45 during the period. At retail, the price rose 0.1% to P38.60.
The farmgate price of yellow corn grain rose 0.1% week-on-week to P13.99 per kg. The average wholesale price was stable at P18.30, but the retail price increased 0.3% to P23.75.
The average farmgate price of white corn grain declined 0.7% week-on-week to P16.13. The average wholesale price fell 2.7% to P21.80, and the average retail price declined 0.2%% to P28.76.
The price of rice had been on a downward trend in the past few months. Palay prices have been under pressure from the threat of competition from cheaper foreign grain that is now being imported more freely with the implementation of the Rice Tariffication Law.
The Department of Agriculture (DA) said it is looking to impose a suggested retail price (SRP) for rice. Agriculture Secretary Emmanuel F. Pinol said that the DA is drafting a memorandum of agreement (MoA) with the Department of Trade and Industry (DTI) for the implementation of the system. He said that the MoA is expected to be signed within the month.
The Federation of Free Farmers’ (FFF) national manager Raul Q. Montemayor said the SRP can be used as a pretext for traders to buy rice at even lower prices from farmers. — Vincent Mariel P. Galang
THE Department of Energy (DoE) said it will further encourage energy efficiency and conservation by creating a committee that will formulate the guidelines for the accreditation of energy service companies, or ESCOs.
In a department order, Energy Secretary Alfonso G. Cusi created a panel to be led by the assistant director of the Energy Utilization Management Bureau (EUMB) as the chair of accreditation committee.
“The Committee shall formulate the guidelines on the accreditation of ESCOs which shall be subject to approval of the Secretary,” he said.
“The Committee shall conduct the accreditation process based on the approved accreditation guidelines and shall endorse to the Secretary, through the Director of EUMB, the application, as evaluated, for approval and issuance of Certificates,” he added.
The members of the panel are the division chiefs of the DoE’s general legal services, power compliance, and energy efficiency and conservation division, along with the section chief of the energy management advisory service sector.
Sought for details on DO2019-07-0013, the DoE communications department said the order was “modified and enhanced” by Section 13 of Republic Act No. 11285 or “An Act Institutionalizing Energy Efficiency and Conservation, Enhancing the Efficient Use of Energy, and Granting Incentives to Energy Efficiency and Conservation Projects.”
Among others, the law authorizes the DoE to strengthen the existing ESCO certification system.
“There are currently consultations with stakeholders on the draft EE&C [energy efficiency and conservation] IRR [implementing rules and regulations], particularly of those DoE-accredited ESCOs,” the DoE said. “To date, IRR development is still on-going.”
The DoE also clarified that there is no need for existing ESCOs to apply for the renewal of their accreditation unless it expires on or before the date of issuance of the guidelines.
Alexander Ablaza, president of the Philippine Energy Efficiency Alliance, Inc. (PE2), said his group was preparing an industry position on the accreditation guidelines and other “thematic areas” relating to the IRR.
“And we hope to have an industry position on the entire IRR by month-end, at the earliest,” he said.
PE2 has recently re-organized its policy committee, the composition of which was relayed to the DoE. The alliance is a non-stock, non-profit organization of energy efficiency market stake-holders. — Victor V. Saulon
THE Supreme Court (SC) voided a Quezon City plan to auction a site owned by the University of the Philippines (UP) and occupied by the UP-Ayala Land Techno Hub, ruling that UP is exempt from paying real estate tax, undermining the city’s argument that the university owes it P117.18 million.
In an 18-page decision dated June 19 and written by Associate Justice Antonio T. Carpio, the court’s second division said UP is exempt from real property tax on land currently leased to Ayala Land, Inc. (ALI).
Under Section 25 (a) of Republic Act No. 9500 or the UP Charter of 2008, the university’s revenue and assets used for educational purposes are tax-exempt.
“Thus, when the City Treasurer addressed to UP the Statement of Delinquency dated 27 May 2014 and the Final Notice of Delinquency dated 11 July 2014 and required UP to pay real property tax on the subject land, UP was already authorized by the legislature to validly claim exemption from real property taxes on the land leased to ALI,” the court said.
“Considering that the subject land and the revenue derived from the lease thereof are used by UP for educational purposes and in support of its educational purposes, UP should not be assessed, and should not be made liable for real property tax on the land subject of this case,” the court added.
The SC, on the other hand, said under the contract of lease between UP and ALI, all improvements in the property shall be owned by ALI during the lease. It also said that the improvements are not “assets” owned by UP and the tax exemption does not apply to the improvements.
The City Treasurer of Quezon City asked the university to pay P117.18 million in real property tax covering the years 2009 to 2013 and the first three quarters of 2014.
The decision was concurred in by Associate Justices Estela M. Perlas-Bernabe, Alfredo Benjamin S. Caguioa, Jose C. Reyes, Jr. and Amy C. Lazaro-Javier. — Vann Marlo M. Villegas
INVOLUNTARY HUNGER among Filipino families in June was little-changed at 10.0% from 9.5% in March to 10.0%, according to the Social Weather Stations (SWS), stalling a downtrend in recent quarters in a result that fell within the SWS study’s margin of error.
In its Second Quarter 2019 Social Weather Survey, SWS reported that “10.0% or an estimated 2.5 million families experienced involuntary hunger at least once in the past three months.” This 10.0% consists of 8.7% or 2.1 million families who experienced ‘Moderate Hunger’ and 1.3% or 320,000 families who experienced ‘Severe Hunger.’“
The SWS added that this is higher than the 2.3 million families or 9.5% who reported Hunger in the March quarter.
“The rise in the nationwide Hunger rate comes after a decrease of 3.8 percentage points within the previous three quarters. From 13.3% (est. 3.1 million families) in September 2018, it subsided to 10.5% (est. 2.4 million families) in December, and then to 9.5% (est. 2.3 million) in March 2019,” SWS reported.
SWS reported the sampling error margin was plus or minus 3% on national results and plus or minus 6% for regional findings.
The non-commissioned survey was conducted on 1,200 adults across the country. SWS classifies people in the “moderate hunger” category if they experienced involuntary hunger once or a few times in the past three months and defined “severe hunger” as involuntary hunger experienced often or always during the same period.
“The moderate hunger rate increased by 0.6 points, from 8.1% (est. 2 million families) in March 2019, to 8.7% in June. Severe Hunger, meanwhile, remained at 1.3% in June as in March (est. 320,000 families),” SWS reported.
The hunger rate for families who self-rate as poor rose by 4.3 points to 16.2% or 1.8 million families, from 11.9% or 1.1 million families in the quarter ending March.
The hunger rate of those who self-rated as food-poor was 17.3% or 1.5 million families in the June quarter, against 14.2% or 959,000 families a quarter earlier. — Gillian M. Cortez
CABINET Secretary Karlo Alexei B. Nograles said Monday that the government will further expand its anti-hunger program by involving more government agencies addressing the problem.
“To improve government anti-hunger efforts…, the EPAHP (Expanded Partnership Against Hunger and Poverty) will be adding more members to its original agencies, which currently include the Department of Agriculture, the Department of Agrarian Reform, and the Department of Social Welfare and Development,” Mr. Nograles said in a statement on Monday.
He said the other agencies that will be involved in the program are “the Department of Education, the Department of Health, the Department of Interior and Local Government, the Department of Science and Technology, the National Nutrition Council, the National Youth Commission, and LANDBANK.”
Mr. Nograles noted that recent data compels the government “to build on and step up current efforts to address hunger in the second half of the President’s administration.”
Mr. Nograles was referring to the June SWS survey that found 35% of Filipino families rating their food as “poor,” referred to by the SWS as “food-poor.” This figure is eight percentage points higher than the record-low 27% of families self-reporting as belonging to this category in March.
Mr. Nograles said that even before the SWS poll came out, Mr. Duterte had directed his Cabinet officials “to align the different anti-hunger and poverty-reduction initiatives of the various agencies so that our programs can be more effective and will have an impact on more Filipinos, especially children.”
He said the priority programs under the EPAHP are: “(1) provisions for the institutional feeding programs; (2) credit support to community-based organizations; (3) capacity-building and productivity improvement for community-based organizations; (4) nutrition education; (5) establishment of agricultural facilities and technologies, food hubs, and other infrastructure facilities; (6) mobilization of funding, technical and research assistance from development and local partners; and advocacy and education.”
Mr. Nograles also noted that “the same whole-of-government approach that has proven effective in other government initiatives will be adopted and applied to address hunger.”
“Millions of kids benefit from government feeding programs, but there are many more we still have to reach. We still have a lot of work to do,” Mr. Nograles said. — Arjay L. Balinbin
In less than two months, I will tie the knot with my girlfriend of eleven years.
Looking back, I went through failure, heartache, and disappointment but, at the same time experienced milestones and achievements that made me who I am today. Being with someone I cherish made me a better version of myself. As American author Helen Keller put it, “the best and most beautiful things in the world cannot be seen or even touched — they must be felt with the heart.” It is better to have someone to rely on.
As I reflect on my personal experiences, I could not help but remember a similar roller coaster ride in assisting clients on tax audits conducted by the Bureau of Internal Revenue (BIR). The ups and downs were mainly because of the exclusion then, and inclusion now, of the Notice for Informal Conference (NIC) in the BIR assessment process.
Prior to the issuance of Revenue Regulations (RR) No. 18-2013, the NIC was part of the due process requirement in the issuance of deficiency tax assessments. The NIC stage then afforded the taxpayer an opportunity to present his side of the case before the BIR issued a Preliminary Assessment Notice (PAN), if warranted.
With the issuance of RR No. 18-2013, the NIC was removed from the BIR assessment process. Thus, taxpayers received their first formal letter correspondence from the BIR about the latter’s findings at the PAN stage. When the NIC was removed, the PANs received by the taxpayers mostly contained staggeringly huge amounts of tax findings — hundreds of millions and even billions. The worst part was that the amounts per PAN would most likely be copied to FAN and there was little time to discuss and clarify the BIR’s numerous alleged findings. This made taxpayers anxious and stressed, as the huge amount of tax findings are not what they expected to see. With little time to discuss, taxpayers felt even more crushed about what was happening with the tax audits, as if they were abandoned by the Philippines’ tax policies and regulations as they were prevented an early opportunity to present their factual and legal defenses on the alleged findings of the BIR. This scenario indeed resulted in heartache and disappointment.
Five years after the issuance of RR No. 18-2013, the BIR issued RR No. 7-2018, which reinstated the NIC as part of the BIR assessment due process. The taxpayer is now given 30 days to respond at the NIC stage, giving taxpayers time to evaluate the BIR findings at an early stage and to prepare themselves for a discussion with the Bureau.
Being part of the due process, the issuance of the NIC must be strictly observed. In recent news reports, certain tax cases against a celebrity and a sports personality were decided against the BIR, because of the latter’s noncompliance with the issuance of the NIC. Thus, the taxpayers’ right to an NIC was respected.
With the return of the NIC, taxpayers are provided an early opportunity to present the factual and legal defenses on the findings of the BIR. Some findings can already be explained or easily be threshed out, such as the non-withholding of taxes on purchases of goods or services, timing differences in the recognition of sales or purchases, the differences between revenue per tax returns vs. per books, the nature of alleged suspicious transactions, etc. The related discussions and clarifications can already be provided at the NIC stage rather than at later stages of the BIR assessment process.
The revival of the NIC definitely gave more time for the BIR to further understand the accounting records and processes of the taxpayer in relation to the BIR’s initial findings. The NIC also reduces the unnecessary time and resources on the part of the taxpayer and on the part of the government, and even possibly avoids unwarranted litigation costs. On the part of the government, deficiency taxes could be collected more efficiently. Less stress on the taxpayer was also a valuable impact of the NIC, reducing the surprise from huge tax findings in the PAN stage as before. This situation, hopefully, will improve the taxpayer’s trust in the BIR assessment process.
As I look back, after one year and a half of reinstatement, the NIC, without doubt, supports the taxpayer in making sure that a tax assessment is resolved with the BIR in the shortest possible time. This would certainly allow taxpayers to concentrate on their core business rather than worry about the BIR looking over their shoulder. The removal of the NIC for some years appeared to have an adverse effect on the results of the BIR assessment process on the taxpayers’ lives. I consider this the dip in the roller coaster ride. The good thing was that the NIC did return and, based on the observation of many, more and more BIR assessment cases are now being immediately resolved at the NIC stage in the interest of both taxpayers and the government.
Just like a roller coaster ride, as well as the ups and downs of life, bringing back the NIC stage is a climb up the tax assessment experience of many taxpayers.
Let’s Talk Tax is a weekly newspaper column of P&A Grant Thornton that aims to keep the public informed of various developments in taxation. This article is not intended to be a substitute for competent professional advice.
Ed Warren L. Balauag is a manager of Tax Advisory & Compliance division of P&A Grant Thornton, the Philippine member firm of Grant Thornton International Ltd.
The State of the Nation Address (SONA) in the Philippines is an annual event that brings together all important personalities in the government — executive, legislative, and judiciary — under one roof, at the Batasang Pambansa. As a governmental tradition, it is a means for the president to inform the people about the current state of the nation and give recommendations to the legislature as regards to his/her agenda or priorities or proposed measures for the fiscal year. As a constitutional obligation (see Article VI, Section 15 of the 1987 Philippine Constitution), it mandates the president to deliver a speech about the state of the nation during the opening of the sessions of the national legislature (which is composed of the Senate and the House of Representatives).
As a political practice, the SONA should be understood as a brief moment where symbolism, pageantry, and grandeur converge with the formalities, rigidities, and scrupulousness of institutions of power. The event is an annual performative display of both excesses of power and its deficiencies — including its suspensions and activations, by a functioning government.
As the Chief Executive appears before the joint session of the legislature, in the presence of members of the judiciary, governmental power becomes virtually one and spatially conjoined as all actors of power are put in the same place at the same time. With this excess, SONA, inherently speaking, becomes one of the greatest security challenges of any government. In fact, the story of the Gunpowder Treason of Robert Catesby, Guy Fawkes, among others, tells us much about this security threat that almost annihilated all important political figures (including King James I and members of the House of Lords) in the United Kingdom during the State Opening of Parliament on Nov. 5, 1605.
Coming from this excess, one can easily notice another interesting function of this age-old practice — to reveal some of the inherent political deficiencies of the government. For one, the need to gather all these important political figures in one place all at the same time implies that each of the political actors present lacks something that needs to be supplied by the president — objective and comprehensive information about our society. The revival of the State of the Union address in 1913 by the 28th President of the United States, Woodrow Wilson, recognized this point by emphasizing the duty to “give to the Congress information of the state of the Union.” Upon a closer look, President Wilson clearly understood the unique role of his office to be familiar with the general issues, problems, etc. in society as compared with the particular knowledge of the members of congress or specific legalistic understanding of the members of the judiciary.
Apart from the excesses and deficiencies, people should also know that the SONA is also filled with mixed moments of suspensions and activations. For the suspensions, the event is supposed to be a momentary break in hostilities, forcing the sitting government to extend an olive branch to its detractors just for a day and to allow all attendees to listen to what the government plans to do for the year. The Feb. 4 SONA in Luxembourg of the reelected Prime Minister Xavier Bettelon exemplified this point by allowing opposition party members from the Christian Social People’s party to sit alongside the administration “traffic light coalition” (composed of the Luxembourg Socialist Workers Party, Democratic Party, and The Greens) in the Chamber of Deputies. PM Bettel’s speech — entitled “Move Luxembourg” — talked about the status of the government and its people, and its plan for 2019 without any interruption or heckling from his critics.
The activations that come from a SONA pertains to that moment where a government is set to institutionalize its vision for the country through the declaration of its priority bills. The speech itself is not just a wish list of laws from the president addressed to the present legislators (and, yes, even members of the judiciary are addressed too by the president, for their decisions inherently form part of the law of the land). It is actually a “marching order” that is aimed to give directions to all lawmakers about what to prioritize or not for the year. South African President Cyril Ramaphosa’s SONA this year, delivered on June 20, was heavily criticized for its lack of detail as regards his plans for this year. His speech did not have specific directives and instructions about how he intends to solve South Africa’s economic woes, outdated Natives Land act, and employment, among others.
Again, we have the SONA because it is one of the practices of a working and functioning government. As a political practice, it allows both the excesses and deficiencies of power, on the one hand, and political suspensions and activations, on the other hand, of the government to take place all in one day.
Arjan P. Aguirre is an Instructor at the Department of Political Science, School of Social Sciences of the Ateneo de Manila University. He handles courses on Politics and Governance, History of Political Theory, Contemporary Political Theories, Electoral Reforms, Social Movements and Contentious Politics. He is also a Consultant for the Legal Network for Truthful Elections (LENTE) and Simbahang Lingkod ng Bayan (SLB).
In her effort to express fittingly her profound gratitude to President Rodrigo Duterte for making possible her acquittal from plunder charges, former President Gloria Macapagal Arroyo got so carried away as to make a monumental slip of the tongue. Said she: “I thank you that when you became President, you provided the atmosphere in which the Court had the freedom to acquit me of the trumped up charges of my successor and your predecessor, so that the Court voted 11-4 in my favor, including half of those who were appointed by my successor.”
In effect, she admitted publicly and formally that the Supreme Court of the Philippines acts on the basis of the president’s directions and wishes. So far-reaching are the implications of Ms. Arroyo’s revelation that the Supreme Court’s Public Information Chief and Spokesperson Brian Keith Hosaka immediately gave the assurance that no one can tell the Supreme Court how to handle or decide on a case. He declared: “The public can be assured that the Supreme Court has and will always act independently, and free from influence from the other branches of government. The Supreme Court is guided by the rule of law and its decision are always based on facts, laws, and reason.”
That assurance of the spokesperson of the Supreme Court falls flat considering that Ms. Arroyo was very specific about what she was grateful for — that Mr. Duterte made it possible for the Supreme Court to acquit her.
In the very first month of Mr. Duterte’s presidency, the Supreme Court, voting 11-4, acquitted Ms. Arroyo of the charge of plunder over the alleged misuse of P366 million in PCSO funds from 2008 to 2010, or the tail-end of Arroyo’s presidency. During his campaign for president in 2016, Mr. Duterte said there are grounds for Ms. Arroyo’s acquittal. He also said repeatedly he “owed” much to her as she had contributed to his campaign funds.
Ms. Arroyo said that the 11 votes in her favor included the votes of half of the justices appointed by President Benigno Aquino, cleverly giving the impression that President Aquino’s appointees to the Supreme Court constituted a substantial number of votes to her favor. Actually, nine of the members of the Supreme Court at the time the decision was made were her own appointees to the Court. Eight of them voted to acquit her.
Of the six appointees of President Benigno Aquino, Associate Justices Bienvenido Reyes, Estela Perlas-Bernabe, and Francis Jardeleza voted in her favor. Justice Reyes was Mr. Duterte’s classmate in San Beda Law. He was the one who swore Mr. Duterte in as president. Justice Bernabe’s voting record reflects a bias towards President Duterte’s position on certain issues. She also voted in favor of the burial of Ferdinand Marcos in the Libingan ng mga Bayani, the imposition of martial law in the whole of Mindanao, and the extension of martial law in Mindanao to the end of this year.
The Supreme Court has been known to decide specific cases according to the justices’ loyalty to the appointing authority, or their prior personal or political relations. All President Duterte had to do was say he wanted Ferdinand Marcos buried in the Libingan ng mga Bayani, martial law imposed in Mindanao, and Chief Justice Sereno ousted from the Court and his appointees to the Court obliged.
The Supreme Court during Ms. Arroyo’s presidency was no different. In 2015, the Court ruled that the fragile state of Senator Juan Ponce Enrile’s health presented a compelling reason for his admission to bail. Justice Lucas Bersamin, who was named to the Supreme Court by President Arroyo, penned the decision. He proposed the granting of bail to Enrile because of the latter’s “solid reputation in his public and his private lives, his long years of public service, and history’s judgment of him.”
I saw that as Justice Bersamin’s move to set a precedent so that Ms. Arroyo, the only one who could be described similarly among the many ailing lolos and lolas (grandfathers and grandmothers) in prison at the time, would be granted bail like Senator Enrile. The election of Mr. Duterte made the use of Justice Bersamin’s scheme unnecessary.
Former President Gloria Macapagal Arroyo — PHILIPPINE STAR/MICHAEL VARCAS
In 2010, the Court dismissed the disqualification complaint against Mrs. Arroyo’s son Mikey, who was running as a nominee of the party list of tricycle drivers and security guards, citing that the case was outside its jurisdiction. In contrast, the Court stopped the impeachment proceedings against then Ombudsman Merceditas Guiterrez, a close friend of Mr. and Mrs. Arroyo, when impeachment is well outside the jurisdiction of the Court.
The Court also upheld Congress’ breakup of the 1st District of Camarines Sur into two to allow Mrs. Arroyo’s son Dato and Rolando Andaya, former three-term representative of the district, to run in separate districts.
The acquittal of Ms. Arroyo was criticised by other justices as enabling impunity by raising the standards of plunder too high. Justice Bersamin, who wrote the decision, introduced the principle of a main plunderer. The principle says that for a crime of plunder to be established, a main plunderer has to be identified.
Because no main plunderer was named in the P366-million PCSO intelligence fund scam, Justice Bersamin ruled that the P366 million must be evenly divided into 10, the number of the accused. As the quotient of P36 million is below the plunder threshold of P50 million, no one of the 10 accused should be charged of plunder. A number of justices dissented to the principle of main plunderer as, according to them, the law does not say anything about main plunderers.
In his column after the acquittal of Ms. Arroyo, retired Supreme Court Chief Justice Artemio Panganiban wrote that Gloria Macapagal Arroyo “was acquitted, among other reasons, because the Supreme Court ruled, for the first time, that in a prosecution for plunder, the ‘main plunderer’ must be identified in the information and proven during the trial before any alleged conspirator can be convicted.” The novel ruling penned by Justice Bersamin has become binding jurisprudence in plunder cases. It is the ruling that former Senator Jinggoy Estrada has invoked in his petition for dismissal of the charges of plunder against him.
It is said that Supreme Court justices are to interpret the law, not make the law. In the case of the acquittal of Ms. Arroyo, there were no laws to interpret. Justice Bersamin simply wrote his own opinion, which recognizably were favorable to his patron Gloria Macapagal Arroyo, and his fellow Arroyo-appointees in the Supreme Court endorsed the opinion willingly and gladly to become law of the land.
In his column last Sunday, Mr. Panganiban wrote: “Let me just say that while new justices may feel a debt of gratitude to the appointing authority during their first year in office, they know only too well that the temporaries of the moment are always overtaken by the permanencies of history.”
True, people remember Chief Justice Enrique Fernando, not as a brilliant jurist, which he was, but as a lackey of Ferdinand Marcos, a reputation enhanced by a photograph showing him holding an umbrella over the then First Lady Imelda Marcos. They remember Chief Justice Renato Corona as the only high-level Philippine official to have been impeached and convicted. One of the impeachment complaints was his consistently ruling with partiality for former President Arroyo in cases involving her administration.
Chief Justice Lucas Bersamin may go down in history in the same vein.
Oscar P. Lagman, Jr. is a retired corporate executive, business consultant, and management professor. He has been a politicized citizen since his college days in the late 1950s.
This is an abridged version of the talk I recently gave to the MAP Corporate Governance Committee officers and members on the Revised Corporation Code which was enacted into law on Feb. 20, 2019.
“ONE MAN BOARD” AND ONE PERSON CORPORATIONS (OPC)
Under Sec 13, there is no more minimum number of directors or trustees. This has given rise to a frequently asked question — Does this removal now allow one-director boards for corporations other than one person corporations? And, is a one-trustee board likewise possible in a non-stock corporation?
My view is not yet at this time. Certainly not, for the sake of good corporate governance; and the fact that there are provisions on board meetings that impliedly do not contemplate one-man boards. For example, Sec. 52 provides that “Directors or trustees who cannot physically attend or vote at board meetings can participate and vote through remote communication such as video conferencing, teleconferencing, or other alternative modes of communication that allow them reasonable opportunities to participate.” Moreover, directors or trustees, by express provision, still cannot attend or vote by proxy at board meetings. This prohibition against proxies in board meetings means at least two directors or trustees are personally present and meet with each other. Thus, the least number of directors or trustees for an ordinary corporation should be two, in which case the quorum should also be two.
Further, it is clear that where no meeting is required, the section must specifically state so. Thus, for amendments of the articles of incorporation, Sec. 15 allows written assent of the stockholders representing two-thirds of the outstanding capital stock, meaning there is no need for a meeting. And for non-stock corporations, for similar amendments, written assent of majority of trustees and at least two-thirds of the members without meeting for either, are allowed.
The case of a one person corporation (OPC) is definitely an exception because by its very nature, it can have only a one-man board composed of the single stockholder. Indeed, provisions on OPCs clearly intend that while no board meeting takes place, there is an alternative way of decision making by its one-man board. Further, many OPC provisions are aligned with minimum corporate governance standards. While there is no other stockholder in an OPC, my view is it still has to meet corporate governance standards if only to protect the interests of stakeholders such as creditors, employees, suppliers, or customers, in particular, and the public, in general.
Firstly, the single stockholder cannot appoint himself as corporate secretary of the OPC. The corporate secretary has special functions that only he should perform. The single stockholder could be its treasurer but he should give a bond to the SEC in such a sum as may be required. He shall undertake in writing to faithfully administer the OPC’s funds and disburse and invest it according to its articles. The bond shall be renewed every two years or as often as may be required.
Secondly, Sec. 127 on Minutes Book states that the minute book shall contain all actions, decisions and resolutions taken by the OPC. Sec. 128, because the single stockholder cannot meet with himself, states that when an action is needed on any matter, it shall be sufficient to prepare a written resolution, signed and dated by the single stockholder and recorded in the minutes book of the OPC. The date of recording shall be deemed the date of the meeting. The minutes book is one of the records that the corporate secretary is expressly required to be responsible for and to maintain together with other records of the OPC.
Thirdly, Sec. 129 on Reportorial Requirements mandates the OPC to submit to the SEC apart from the annual financial statements:
1. a report containing explanations or comments by the president on every qualification, reservation or adverse remark or disclaimer made by the auditor in the latter’s report;
2. a disclosure of all self-dealings and related party transactions between the OPC and the single stockholder; and,
3. other reports as SEC may require.
Lastly, the OPC is vested with limited liability, which means that only its assets and properties will be answerable for its debts and liabilities. Sec. 130 on Liability of Single Stockholder accordingly states that a sole shareholder claiming limited liability has the burden of affirmatively showing that corporation was adequately financed. Where the single stockholder cannot prove that the property of the OPC is independent of the stockholder’s personal property, the stockholder shall be jointly and severally liable for the debts and other liabilities of the OPC. The principle of piercing the corporate veil thus applies to OPCs as well.
Given these provisions on the OPC, the intention is even if it has only one director in the person of the single stockholder, the OPC shall comply with minimum standards of CG for the protection of its stakeholders.
EMERGENCY BOARD — A CASE OF SUCCESSION PLANNING
Sec. 28 provides when the vacancy prevents the remaining directors from constituting a quorum and emergency action is required to prevent grave, substantial and irreparable loss or damage to the corporation, the vacancy may be temporarily filled from among the officers of the corporation by the unanimous vote of the remaining directors or trustees. The action of the designated director-trustee shall be limited to the emergency action only and his term shall cease within a reasonable time from termination of the emergency or upon election of the replacement director, whichever comes earlier. A report to the SEC is to be given upon termination of the emergency. The nature of an emergency board whereby a corporate officer is selected to be a temporary director during an emergency is aligned with corporate governance in the sense that it is a form of succession planning for the corporation.
PROTECTION OF STOCKHOLDERS’ OR MEMBERS’ RIGHTS
Other amendments of the Code protect the stockholders’ rights to elect directors, attend meetings and inspect. Sec. 49 states that the stockholders’ right to vote may be exercised in person, through a proxy, or when so authorized in the bylaws, through remote communication or in absentia. Sec. 179 (n) reiterates that the SEC shall “impose or recommend new modes by which a stockholder, member, director or trustee may attend meetings or cast their votes, as technology may allow, taking into account the company’s scale, number of shareholders or members, structure and other factors consistent with basic right of corporate suffrage.”
Sec. 25 is aimed at the recurring problem of no quorum-no meeting paving the way for “hold over forever” directors or trustees. If no election is held consecutive times, or if the non-holding of election is unjustified, the SEC may, upon application of a stockholder or member, director or officer and after verification of the unjustified non-holding of the election, summarily order that an election be held. The SEC shall order the issuance of a notice stating the time and place of the election, designate the presiding officer, and set the record date for determination of who may vote. AND, notwithstanding any provision of the articles or bylaws to the contrary, the shares or members represented at such a meeting and entitled to vote SHALL constitute a QUORUM for conducting an election. So even if there is only one lonesome stockholder present, the meeting pushes through and election takes place.
The article reflects the personal opinion of the author and does not reflect the official stand of the Management Association of the Philippines or the MAP
Atty. Teresita “Tess” J. Herbosa is of Counsel of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW) and former Chair of the Securities and Exchange Commission (SEC).
Climate change is natural, nature-made and not man-made. It is cyclical — the warming-cooling-warming-cooling over the past 4.6 billion years of the Earth — and there is no such thing as “unprecedented” global warming.
Climate alarmism relies on endless hype by politicians, multilateral institutions, NGOs, and media. Luckily, President Rodrigo Roa Duterte is among the very few country leaders who does not join the hype. I checked his past three State of the Nation Addresses (SONA), the number of words, including ad libs and jokes, and compared mentions of “climate change” (CC) or “global warming” (GW) (See Table 1).
This should be among the few instances where I say, “Thank you, President Duterte” for not adding to and fanning the climate alarmism.
Which leads me to a related topic, the 13th International Conference on Climate Change (ICCC-13) this coming Thursday, July 25, in Washington, DC, USA. The annual ICCC is sponsored by the free market think tank Heartland Institute.
I attended ICCC-2 in New York City in 2009 and ICCC-4 in Chicago in 2010. It was those very technical lectures from known scientists in the fields of geology, meteorology, climatology, physics, astronomy, chemistry, biology, that further convinced me that CC is natural and cyclical. That natural factors like the Sun, galactic cosmic rays (GCRs), clouds, water vapor, the oceans (PDO and AMO), etc., are the bigger drivers of planet Earth’s climate, and not a quantitatively insignificant gas, carbon dioxide (CO2), that comprises only 400 parts per million (i.e., 0.04%) of total greenhouse gas molecules in the atmosphere.
The ICCC-13 will feature some big names in climate science. Among them: Dr. Richard Lindzen, professor emeritus of meteorology at the Massachusetts Institute of Technology; Dr. Patrick Michaels, past president of the American Association of State Climatologists; Dr. Tim Ball, former climatology professor at the University of Winnipeg, Manitoba, Canada; Dr. Jay Lehr, a hydrologist and Senior Policy Analyst at the International Climate Science Coalition; Dr. Roy Spencer, Principal Research Scientist at the University of Alabama in Huntsville (UAH) and former Senior Scientist for Climate Studies at NASA’s Marshall Space Flight Center; Dr. David Legates, professor of climatology at the University of Delaware; Anthony Watts, a meteorologist who operates the world’s most viewed website on climate, wattsupwiththat.com; and Lord Christopher Moncton, a British mathematician and former Special Advisor to Prime Minister Margaret Thatcher from 1982 to 1986.
The 27 speakers will cover topics on Climate modeling vs. observed temperature data, the Sun and climate, the latest volume of the Non-governmental International Panel on Climate Change (NIPCC), Green New Deal, CO2 taxes, societal benefits of fossil fuels, etc.
The world’s four biggest economies in terms of GDP size are also the world’s biggest coal users, and many previously undeveloped/poor countries are now among the world’s major economies and they are major coal users (see Table 2).
To demonize fossil fuels while at the same time using lots of fossil fuels (for cars and buses, boats and airplanes, power and electricity) is double talk. To demonize CO2 as a bad “pollutant” gas is anti-science because the gas that we humans exhale is CO2, we do not exhale pollution. The gas that our plants and crops use to produce their own food via photosynthesis is CO2, so more CO2 means more plant food, more trees and more food production.
Bienvenido S. Oplas, Jr. is the president of Minimal Government Thinkers.
BOXING’s only eight-division world champion Manny “Pacman” Pacquiao of the Philippines made it a successful return to the United States after beating American Keith “One Time” Thurman by split decision in their World Boxing Association super welterweight championship fight at the weekend at the MGM Grand Garden Arena in Las Vegas, Nevada.
After more than two years of not fighting in the US, Mr. Pacquiao did not disappoint anew on the big stage, taking the title from Mr. Thurman in solid fashion.
It was not an easy fight though as the American gave his all and actually made a case for himself to repeat as champion along the way.
For local fight analyst Nissi Icasiano, considering the route 40-year-old Pacquiao took to get the WBA super welterweight title, he has every reason to be proud of his feat and, in turn, celebrate.
“He has beaten of one the top guys at 147 pounds. The fighting senator has every reason on the planet to celebrate because he took an uphill battle but managed to ace it with flying colors,” said Mr. Icasiano when asked by BusinessWorld for his post-fight thoughts on Pacquiao-Thurman, the Filipino’s first fight in the US since he fought and defeated Jessie Vargas in November 2016.
Mr. Pacquiao was a 115-112, 113-114 and 115-112 winner over Mr. Thurman, which he punctuated with a knockdown in the opening round.
“I would give Pacquiao’s performance an 8 out of 10. He was not only effective in pushing the action, but also his uncanny ability to counterpunch was in full display. He faded in the closing rounds of the fight, but it was forgivable,” Mr. Icasiano added.
The fight analyst went on to share that as much Mr. Pacquiao was impressive in the fight, Mr. Thurman should also get some props for the effort he put in.
“I expected it to be competitive for 12 rounds because of both men’s contrasting styles, but I was surprised by Thurman’s gallant effort to fight toe-to-toe with Manny Pacquiao. But eventually it took a toll on Thurman. He reverted to his usual fighting style, where he caught the Filipino superstar with big shots from Rounds 7 to 9. It appeared that Thurman was already taking over, but Pacquiao didn’t allow Thurman to close it out. Thurman got too confident and started engaging and insinuating the action, but he was met by Pacquiao’s pesky offense,” Mr. Icasiano said.
Adding, “It was an interesting fight, but in my opinion, the outcome should have been unanimous decision, not split. I can’t blame the judge who scored the fight in favor of Thurman though as he may have seen the American as the boxer who landed the more telling blows in close rounds.”
Mr. Pacquiao said after the fight that he plans to return to the ring next year against a still-to-be-determined opponent.
However, Mr. Icasiano said a possible opponent for Mr. Pacquiao could either be Errol Spence Jr. and Shawn Porter, who are set to meet later this year.
“For his next opponent, it is most likely that he is going to face the winner of the title unification bout between Errol Spence Jr. and Shawn Porter on Sept. 28. It is one of the reasons of Al Haymon as to why he invested on a 40-year-old Manny Pacquiao,” the analyst said.
PORTRUSH, NORTHERN IRELAND — Irishman Shane Lowry staved off the biggest nerves of his golfing life, handling the wind and the rain to win the British Open by six strokes amid emotional scenes at Royal Portrush on Sunday.
Fervently cheered on every shot by the sellout crowd, the 32-year-old from Clara, who began the day with a four stroke lead, was never seriously troubled in the final round with England’s Tommy Fleetwood unable to take his chances to put him under pressure.
Lowry carded one-over-par 72 in strong winds and at times driving rain, but he was rewarded with wild celebrations as the fans charged on to the fairway behind him as he approached the 18th green.
“It’s like an out of body experience. I was so calm coming down the last, I cannot believe it. The weather was awful but I had a look around, and everyone was struggling,” said Lowry who was greeted by his family on the green.
“It became a two horse race with Tommy, and I just tried to focus on staying ahead.”
Lowry finished at 15-under 269, while Fleetwood, shot 74 for second place.
“To lead by four at the start of the day and to keep that and to just control, he literally controlled the tournament from the start of today until the end, that’s a very, very impressive thing to do,” said Fleetwood, who was left to rue the early birdie opportunities he failed to convert.
With the weather making it hard for anyone to make a run from down the leader board it quickly turned into a head-to-head duel between Lowry and Fleetwood.
“I got off to a very shaky start,” said Lowry, who had to sink a six-foot putt to salvage bogey at the first.
“I didn’t feel great out there. It’s probably the most uncomfortable I’ve ever felt on a golf course. You’re trying to win an Open in your home country, it’s incredibly difficult.”
But once he settled down and looked at a leader board he noticed that nobody was making a run at him.
He needed to avoid any big numbers on his card and duly did so, making nothing worse than bogey.
Even three straight bogeys around the turn hardly dented his lead, and a six-foot birdie at the 15th hole that extended his margin to six strokes allowed him to almost enjoy a processional victory march up the final three holes.
“It was just so difficult,” he said. “I kept telling myself bogeys are not going to hurt you, let’s just keep the ball in play and if I make the odd par it will be pretty good.
Lowry savored the walk up the 18th, greeted with delight by the singing gallery who packed the stands, with some Irish tricolors in the crowd.
After hitting his final approach shot he held his arms aloft in celebration and hugged his caddie, assured finally that there would be no late disaster.
GREETED BY HARRINGTON
He became the second player from the Republic of Ireland, after Padraig Harrington in 2007 and 2008, to lift the Claret Jug, a fitting end to the first Open played in Northern Ireland since 1951.
Players from Ireland and Northern Ireland have won five of the past 13 Opens, with Darren Clarke (2011) and Rory McIlroy (2014) also hoisting the Claret Jug.
Harrington and 2010 US Open champion Graeme McDowell were among those who greeted Lowry next to the 18th green, while McIlroy, the local favorite who missed the cut, was no doubt cheering from afar, Irish eyes smiling all over.
“We’re all one country when it comes to golf,” Lowry said.
“I said to my caddie walking down the last, ‘I can’t believe this is me, this is mine.’
“I’ve watched the Open since I was a little kid and to be named champion golfer of the year is just incredible.”
The win ended American hopes of a clean sweep of the year’s majors — Tony Finau was the best finishing American with his even-par 71 securing third place, eight strokes behind Lowry.
It was a strong showing from British golfers, who secured five of the top ten spots. Scotsman Robert MacIntyre finished sixth in his maiden major after shooting an impressive final round 68.
Lee Westwood finished tied for fourth with Brooks Koepka, a result which means the 46-year-old Englishman will return to the Masters after missing out on Augusta in the past two years. — Reuters
