Are you a Filipino immigrant/naturalized citizen of another country who stands to inherit properties in the Philippines? Or have you left behind properties in the Philippines and you have nobody to rely upon for their preservation and protection?
Of course, the easiest thing to do would be to dispose your properties to any interested buyer. Having a buyer who would purchase them for the desired price is a different issue, however. By the way, even the hereditary rights may be sold or transferred (subject to subrogation). Article 1088 of the New Civil Code provides, that:
“Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor.”
For properties subject to inheritance, you may convince your parent/s and your siblings for the execution of a donation inter vivos, instead of a last will and testament. Conditions may be imposed anyway so that the use of the properties and their income, if any, will stay with your parent/s while they are still alive. You can do this as well with respect to your own properties. This way, the taxes to be paid would actually be lower.
Or you may consider having a trustee, whose duties may include management, preservation, collection of fruits and income, even disposition of the properties, for your benefit and that of other beneficiaries. According to the New Civil Code:
“A person who establishes a trust is called the trustor; one in whom confidence is reposed as regards property for the benefit of another person is known as the trustee; and the person for whose benefit the trust has been created is referred to as the beneficiary.” (Art. 1440)
In this regard, you as the trustor may execute an agreement reposing on the trustee certain duties that you may deem fit based on your situation and the attending circumstances. It may include both real and personal properties. The beneficiaries could be your children and even some charity organizations. Also, said agreement has to be duly notarized.
Forming a corporation is also an attractive option. You will need to comply with the requirements of the Corporation Code and the regulations of the Securities and Exchange Commission, though. Registration, having a set of officers, annual reporting, and the like ought to be complied with. This way, you may even get exemptions from payment of transfer taxes (in exchange for shares of stocks). In case of eventual sale to intended beneficiaries of the said shares, the taxes are also considerably lower.
Thus, depending on your situation and needs, on your future plans, you have several options to manage your properties in the Philippines for your own good self and for your loved ones.
Saturday, April 30, 2011
Wednesday, April 20, 2011
Synergy between and among the Subic Bay Freeport and contiguous communities: a genuine catalyst for progress
The Subic Bay Freeport (“Freeport”), through the Subic Bay Metropolitan Authority (SBMA) has been granted much autonomy by the Philippine government via Republic Act (RA) No. 7227, as amended. Among others, Subic Bay Freeport enjoys its status as a self-sustaining, industrial, commercial, financial and investment center; as a separate customs territory; and a tax-free zone except for the payment of three percent (3%) of the gross income earned by all businesses and enterprises within the Freeport.
The Freeport used to be the US Subic Naval Base. By virtue of the 1947 US-RP Military Bases Agreement, large tracts of land historically belonging to Olongapo City, Subic, Hermosa and Morong, were segregated and fenced. After the treaty expired and was not renewed in 1991, RA 7227 was enacted, and the Freeport was born. In order to do so, the law required the concurrence of the said affected local government units (LGUs) through their legislatures. The LGUs agreed primarily in exchange for employment opportunities for their constituents and the trickle-in effects of development from the Freeport.
But despite the declaration of those LGUs as integral parts of the Freeport, a perceptible gap, both physical and psychological, remains between them and the Freeport. Courtesy perhaps of the old fences and man-made channels still dividing them.
Thus, the love-hate relationships started between the Freeport and these LGUs. Issues ranging from appointments of LGU representatives to the SBMA board of directors, preference in the hiring of workers, delayed remittance of the 1% share, business competition between Freeport-based and outside traders, territorial disputes, would crop up from time to time. These are concerns, however, that can be avoided and settled as long as the parties involved would have an open mind and focus on critical collaboration.
In this regard, it is important to note that although the Freeport has a certain level of autonomy, it lacks a distinct feature of a political subdivision to fully function independently and seamlessly, i.e., it does not have its own local police (the Law Enforcement Department [LED] is an internal security force), it does not have its own prosecutorial service, neither does it have its own courts. The SBMA, its residents and investors usually run “outside the base” to the courts of Olongapo City, Dinalupihan, or Balanga City in case of civil disputes. Preliminary investigation of crimes committed in the Freeport is held either in Olongapo City or Balanga City, and criminal cases are subsequently filed in courts exercising territorial jurisdiction where such crimes are committed.
In other words, the Freeport relies on various instrumentalities outside its gates in order to efficiently manage and maintain harmony and stability inside, and ensure the consistent pace of progress and development.
While it is laudable and proper then to insulate the Freeport from politics, the reality must be accepted, however, that the Freeport is surrounded by local political units whose services and cooperation it vastly needs in order to succeed. It is surrounded by communities whose development is likewise vital to the Freeport’s relevance and competitiveness in the global stage.
It is in this light that the Freeport must break from its perceived isolationism (whether rightly or wrongly), actively engage the concerned LGUs and communities, and find a common ground by which they can work together.
Corporate social responsibility (CSR) is a tool that can be harnessed to establish rapport and camaraderie such that the people and their communities would truly feel and understand that they are prime stakeholders in this fenced-in area called the Freeport. The SBMA together with like-minded and willing locators, may focus on a broad array of programs such as educational assistance and grants, including technical and vocational programs; environmental conservation and protection; and basic services subsidies and food-for-work programs. Indeed, by practicing CSR, the Freeport may bring about a holistic, top-to-bottom development that would be beneficial to most, if not all, stakeholders.
Here’s looking forward to the roaring success of the Freeport on its twentieth (20th) anniversary next year.
The Freeport used to be the US Subic Naval Base. By virtue of the 1947 US-RP Military Bases Agreement, large tracts of land historically belonging to Olongapo City, Subic, Hermosa and Morong, were segregated and fenced. After the treaty expired and was not renewed in 1991, RA 7227 was enacted, and the Freeport was born. In order to do so, the law required the concurrence of the said affected local government units (LGUs) through their legislatures. The LGUs agreed primarily in exchange for employment opportunities for their constituents and the trickle-in effects of development from the Freeport.
But despite the declaration of those LGUs as integral parts of the Freeport, a perceptible gap, both physical and psychological, remains between them and the Freeport. Courtesy perhaps of the old fences and man-made channels still dividing them.
Thus, the love-hate relationships started between the Freeport and these LGUs. Issues ranging from appointments of LGU representatives to the SBMA board of directors, preference in the hiring of workers, delayed remittance of the 1% share, business competition between Freeport-based and outside traders, territorial disputes, would crop up from time to time. These are concerns, however, that can be avoided and settled as long as the parties involved would have an open mind and focus on critical collaboration.
In this regard, it is important to note that although the Freeport has a certain level of autonomy, it lacks a distinct feature of a political subdivision to fully function independently and seamlessly, i.e., it does not have its own local police (the Law Enforcement Department [LED] is an internal security force), it does not have its own prosecutorial service, neither does it have its own courts. The SBMA, its residents and investors usually run “outside the base” to the courts of Olongapo City, Dinalupihan, or Balanga City in case of civil disputes. Preliminary investigation of crimes committed in the Freeport is held either in Olongapo City or Balanga City, and criminal cases are subsequently filed in courts exercising territorial jurisdiction where such crimes are committed.
In other words, the Freeport relies on various instrumentalities outside its gates in order to efficiently manage and maintain harmony and stability inside, and ensure the consistent pace of progress and development.
While it is laudable and proper then to insulate the Freeport from politics, the reality must be accepted, however, that the Freeport is surrounded by local political units whose services and cooperation it vastly needs in order to succeed. It is surrounded by communities whose development is likewise vital to the Freeport’s relevance and competitiveness in the global stage.
It is in this light that the Freeport must break from its perceived isolationism (whether rightly or wrongly), actively engage the concerned LGUs and communities, and find a common ground by which they can work together.
Corporate social responsibility (CSR) is a tool that can be harnessed to establish rapport and camaraderie such that the people and their communities would truly feel and understand that they are prime stakeholders in this fenced-in area called the Freeport. The SBMA together with like-minded and willing locators, may focus on a broad array of programs such as educational assistance and grants, including technical and vocational programs; environmental conservation and protection; and basic services subsidies and food-for-work programs. Indeed, by practicing CSR, the Freeport may bring about a holistic, top-to-bottom development that would be beneficial to most, if not all, stakeholders.
Here’s looking forward to the roaring success of the Freeport on its twentieth (20th) anniversary next year.
Sunday, April 10, 2011
Lease of real property as a viable public-private partnership scheme for local government units (LGUs)
As previously discussed (please see http://subiclawyer.blogspot.com/2011/01/public-private-partnership-schemes-for.html), local government units (LGUs) have the power to engage in and enter into public-private partnership schemes, one of which is the contract of lease for real properties, pursuant to the Local Government Code of 1991.
In this regard, one of the most essential aspects, if not the most essential aspect, of leasing an LGU-owned real property is the determination of the rental rates. This is where possible violations of the Anti-Graft and Corrupt Practices Act (RA 3019) and related laws may arise. To prevent such possible missteps and avoid any suspicion of wrong-doing, LGUs must observe the proper Commission on Audit (COA) rules.
As early as 1988, the COA has come up with the pertinent guidelines addressing that concern, as it adopted the guidelines formulated by the Department of Public Works and Highways (DPWH), which was, in turn, made pursuant to Executive Order No. 301, issued by President Cory Aquino.
According to said guidelines, as a general rule, rental rates are considered reasonable when they represent or approximate the value of what the Lessee gets in terms of accommodation, facility and convenience from the leased building/space, and the Lessor gets equitable return of its capital or investment in the construction and maintenance of the building/space.
To determine the reasonable rental rate, the COA has espoused the INVESTMENT BUILDING APPROACH METHOD.
Factors to be considered are:
1. Cost land (Market Value) - the lot where the building will be erected. This includes the open areas.
2. Cost of building and/or Equipment/money invested.
3. Recovery period of the Principal/or Machineries and other improvements.
4. Income derived from the rate of interest stabilize rate of the money invested in the property being appraised.
5. Administrative and /or General Operating Services Expenses.
6. Real Estate Taxes.
7. Others
Appraised value of buildings for rent is determined by comparative rentals of space in the vicinity of the same building condition and/or classification. More often this method is used to check the computed rental rate.
Additional pointers in determining the factor value are:
I LOCATION AND SITE CONDITION
II NEIGHBORHOOD DATA
III BUILDING
IV FREE SERVICE & FACILITIES
V RENTAL RATE FACTOR VALUE
VI OTHER INFORMATION AND RECOMMENDATION
To my knowledge, such guidelines have not yet been repealed or modified. It is safe to say then that these guidelines remain valid and effective.
Postscript:
Secretary Jesse Robredo of the Department of Interior and Local Government (DILG) issued Memorandum Circular No. 2011-16 on 31 January 2011, enjoining all local chief executives "to create a Public-Private Partnership (PPP) Sub-Committee in the Local Development Councils to assist the LGUs in setting the economic and social development and coordinate the development efforts as provided for in Section 106 of the Local Government Code of 1991. Specifically, the PPP Sub-Committee shall, among others, assist the LDC in the formulation of action plans and strategies related to the implementation of PPP programs and projects per EO No. 8 s. 2010," in order to localize the mandated powers and functions of the recently established PPP center.
In this regard, one of the most essential aspects, if not the most essential aspect, of leasing an LGU-owned real property is the determination of the rental rates. This is where possible violations of the Anti-Graft and Corrupt Practices Act (RA 3019) and related laws may arise. To prevent such possible missteps and avoid any suspicion of wrong-doing, LGUs must observe the proper Commission on Audit (COA) rules.
As early as 1988, the COA has come up with the pertinent guidelines addressing that concern, as it adopted the guidelines formulated by the Department of Public Works and Highways (DPWH), which was, in turn, made pursuant to Executive Order No. 301, issued by President Cory Aquino.
According to said guidelines, as a general rule, rental rates are considered reasonable when they represent or approximate the value of what the Lessee gets in terms of accommodation, facility and convenience from the leased building/space, and the Lessor gets equitable return of its capital or investment in the construction and maintenance of the building/space.
To determine the reasonable rental rate, the COA has espoused the INVESTMENT BUILDING APPROACH METHOD.
Factors to be considered are:
1. Cost land (Market Value) - the lot where the building will be erected. This includes the open areas.
2. Cost of building and/or Equipment/money invested.
3. Recovery period of the Principal/or Machineries and other improvements.
4. Income derived from the rate of interest stabilize rate of the money invested in the property being appraised.
5. Administrative and /or General Operating Services Expenses.
6. Real Estate Taxes.
7. Others
Appraised value of buildings for rent is determined by comparative rentals of space in the vicinity of the same building condition and/or classification. More often this method is used to check the computed rental rate.
Additional pointers in determining the factor value are:
I LOCATION AND SITE CONDITION
II NEIGHBORHOOD DATA
III BUILDING
IV FREE SERVICE & FACILITIES
V RENTAL RATE FACTOR VALUE
VI OTHER INFORMATION AND RECOMMENDATION
To my knowledge, such guidelines have not yet been repealed or modified. It is safe to say then that these guidelines remain valid and effective.
Postscript:
Secretary Jesse Robredo of the Department of Interior and Local Government (DILG) issued Memorandum Circular No. 2011-16 on 31 January 2011, enjoining all local chief executives "to create a Public-Private Partnership (PPP) Sub-Committee in the Local Development Councils to assist the LGUs in setting the economic and social development and coordinate the development efforts as provided for in Section 106 of the Local Government Code of 1991. Specifically, the PPP Sub-Committee shall, among others, assist the LDC in the formulation of action plans and strategies related to the implementation of PPP programs and projects per EO No. 8 s. 2010," in order to localize the mandated powers and functions of the recently established PPP center.
Wednesday, April 6, 2011
Adoption in the Philippines: Fundamental guidelines and information
For domestic adoption of Filipino children, Republic Act (RA) No. 8552, enacted in 1998, applies.
Under this law, the petitioners must show that they are physically fit to be adoptive parents, have no derogatory records, and are psychologically and emotionally fit to be parents of the adoptee. They must be at least sixteen (16) years older than the adoptee, except when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent.
In certain cases, the requirements on three (3)-year residency and certification of the alien's qualification to adopt in his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.
Either or both petitioners must show that they are gainfully employed and more than financially capable, as may also be shown by ownership of properties, enjoyment of pensions and/or having a business.
As a rule, husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
The following may be adopted:
(a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse by the other spouse;
(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;
(d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority;
(e) A child whose adoption has been previously rescinded; or
(f) A child whose biological or adoptive parent(s) has died, subject to a six (6)-month prohibition from the time of death of said parent(s).
The written consent of the following to the adoption is also required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter's spouse, if any; and
(e) The spouse, if any, of the person adopting or to be adopted.
If applicable, the law of the country where either petitioner used to be a resident must allow the adoption of foreign children and will be given reciprocal rights to enter and reside in said country.
Finally, it is important that a court-designated social worker conduct and present the Child and Home Study Reports on petitioners and the adoptee, and recommend the approval of the petition for adoption by the trial court.
Under this law, the petitioners must show that they are physically fit to be adoptive parents, have no derogatory records, and are psychologically and emotionally fit to be parents of the adoptee. They must be at least sixteen (16) years older than the adoptee, except when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent.
In certain cases, the requirements on three (3)-year residency and certification of the alien's qualification to adopt in his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.
Either or both petitioners must show that they are gainfully employed and more than financially capable, as may also be shown by ownership of properties, enjoyment of pensions and/or having a business.
As a rule, husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
The following may be adopted:
(a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse by the other spouse;
(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;
(d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority;
(e) A child whose adoption has been previously rescinded; or
(f) A child whose biological or adoptive parent(s) has died, subject to a six (6)-month prohibition from the time of death of said parent(s).
The written consent of the following to the adoption is also required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter's spouse, if any; and
(e) The spouse, if any, of the person adopting or to be adopted.
If applicable, the law of the country where either petitioner used to be a resident must allow the adoption of foreign children and will be given reciprocal rights to enter and reside in said country.
Finally, it is important that a court-designated social worker conduct and present the Child and Home Study Reports on petitioners and the adoptee, and recommend the approval of the petition for adoption by the trial court.
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