Republic of the Philippines)

City of Manila ) s.s.

COUNTER-AFFIDAVIT
I, LORENZO B. LEONCIO, of legal age, married, Filipino with residence
and postal address at Poblacion Narra Bancao Bancao Puerto Princesa City, after
having been duly sworn to in accordance with law deposes and states:

1. That I am the respondent in the case entitled Bureau of Internal Revenue

versus Lorenzo B. Leoncio docketed as NPS Docket No. XVI INV 13L
00467, pending before the Department of Justice, Manila;

2. That there the Bureau of Internal Revenue (BIR) charged me with

FIRST: Willful Attempt to Evade or Defeat Tax for taxable year of 2008
under Sections 51 (A) (1) (a) and 74 in relation to Section 254 of the
National Internal Revenue Code, SECOND: Willful Failure to Supply
Correct and Accurate Information on Income Tax Return for taxable year
2008 and 4th quarter Value Added Tax Return for the same taxable year
and, THIRD: for Willful Failure to file 1st, 2nd and 3rd VATR for taxable
year 2008 proscribed under Section 255 of the National Internal Revenue
Code;

3. That I categorically deny having committed the said offenses;

4. I am but an ordinary contractor who entered into several construction

projects with the Provincial Government of Palawan;

5. That naturally I received payments from the said projects as

remuneration for my services;

6. But, I also incurred expenses for the construction projects I went into in
terms of materials I used and the salaries of the laborers I utilized;

7. In paragraph 13 of the affidavit complaint of the BIR it alleged that

although I earned a total of Php 91, 817,694.58 for the taxable year
 2008, I only declared Php 73,779,784.72 as my income in my income
tax return;

8. That it is on this apparent mis-declaration that I am being charged of

attempting to evade tax or even tax evasion;

9. The computation of the BIR as to how much I earned in the projects I

entered with the Province of Palawan is grossly inaccurate for it did not
take into account factors like mobilization advances, income taxes and
value added taxes that was later on deducted to my statement of accounts
by the Provincial Government of Palawan;

10.It is very clear that the BIR totaled my bill with this government agency
and came up with the conclusion that I earned a gargantuan income when
it is very far from reality;

11.I did not lie or made any misrepresentation when I stated in my income
tax return that my only income in the said construction projects is Php
73,779,784.72 for 2008 for it is only that which I earned after deducting
so many expenses;

12.I take exception to the virulent accusation of the BIR that I wilfully
evaded or attempted to pay income and value added taxes for the taxable
year 2008;

13.In the very first place the taxes (income tax and value added tax) for the
said infrastructure projects with the Province of Palawan was withheld by
it;

14.These taxes is computed based on my gross incomes and does not pass
my pocket anymore for they are being kept by the Province of Palawan
as withholding agent;

(Photocopy of Certificates of Witholding Taxes by the Provincial

Government of Palawan is attached herein as ANNEX “1 and 2“ to form
an integral part hereof);
15.ANNEX “1” refers to the value added tax that was withheld against me
by the Provincial Government of Palawan for the year 2008 in the
amount of Php 3, 765,111.99;

16.ANNEX “2” refers to the income tax that was withheld against me by
the Provincial Government of Palawan for the year 2008 in the amount of
Php 1,506,044.75;

17.I am still in the process of getting the same kind of certificates from the
DPWH of Palawan which likewise withheld income and value added
taxes from me;

18. The whole taxes due my construction projects with the said government
agency was dutifully paid by me negating an element required by
Section 254 of the National Internal Revenue Code (NIRC) which is
“willful evasion or willful intent to evade the payment of taxes”;

19.In CIR v. The Estate of Benigno Toda Jr., G.R. No. 147188, September
14, 2004 the Supreme Court declared “… tax evasion connotes the
integration of three factors: a) the end to be achieved i.e., the payment of
less tax than that known by the taxpayer to be legally due, or the non-
payment of tax when it is shown that a tax is due, b) an accompanying
state of mind which is described as being “evil,” “in bad faith” “willful”
or “deliberate” and not “accidental” and c) a course of action or failure of
action which is unlawful;

20. Using the abovementioned elements as the yardstick to ascertain whether

or not I am guilty of tax evasion will point eventually to the fact that I am
innocent;

21. In the first instance, I could have not had the evil mind, the bad faith or
the willful or deliberate intent to evade taxes for as already mentioned I
never opposed the withholding of my income and value added taxes;

22.Assuming for the sake of argument that I had made some misdeclarations
in my income tax returns as to how much is my gross income, that will
 not benefit me at all for the taxes that were withheld from me is not at all
affected by my declarations;

23.But the most significant factor to consider in the side of my innocence is

that not a single centavo was lost in favor of the national government in
the form of taxes for the same remains intact with the government
agencies that withheld the same;

24.Thus, I move that the above-captioned complaint by the BIR against me

be dismisses for lack of merit.

IN WITNESSETH WHEREOF, I hereunto set my hand this ____ day of

April 2014 at the City of Manila.

LORENZO B. LEONCIO

SUBSCRIBED and SWORN to before me this ____ day of April 2014 in the
City of Manila. This is certify that the affiants personally appeared before me and
verified the he has read this affidavit complaint and that the content thereof are true
and correct of his own knowledge and information and based on the available
records.