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MFBR lawyers and associates care!

In light of the constantly changing social and economic landscape in the world due to COVID-19, everyone at Mallari Fiel Brillante Ronquillo has taken steps to make good our steadfast commitment to serve our clients and our communities.

To this end, we designed a new business model incorporating the traditional “brick and mortar” and “virtual” law offices. This new model is to achieve the continuity of rendering our legal and business consultancy services to clients and friends, and the immediate implementation of our crisis management and business transformation activities.

Thus, we’re glad to announce that for every fortnight, half of our team will be physically present at our offices from Monday thru Friday, 8:00am to 3:00pm. Clients and our friends can reach us through our office phones and online platforms (website, emails, Facebook, LinkedIn, Zoom, etc.). And to ensure the health and safety of our staff, they have the option to be housed in the Firm’s private residence or shuttled back and forth using the company’s private vehicle. Safety protocols are also observed at our offices.

Finally, our team has prepared a series of materials around the impact of COVID-19 and related considerations. Please take time to view our sample articles and research published in our website. A complete listing and discussion of these articles are available in our newsletter to be distributed to our esteemed clients.

Should you have questions, please reach out to our Office Manager, Argie Macawile, at +632 86953395, +63977 8502357; or email our Managing Partner, Atty. Rob Mallari, at mfl@mflegal.com.ph and rpmallari@mflegal.com.ph.

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How do you close your business?

They say that it’s easier to open a business than to close an existing one, moreso a business suffering grave financial loss, or worse, those in a state of bankruptcy.

There are various causes which results to a business’ closure and some of which are uncontrollable and involuntary.

In general, the closure would entail the following steps:

  1. Determine the business classification (whether a sole proprietorship, partnership, or corporation;
  2. Collate and complete the documentary requirements and supporting papers;
  3. Officially announce the closure of business to the stakeholders;

Persons/Agencies Involved:

  • Employees;
  • Suppliers and Creditors;
  • Regulatory Agencies;
  • Shareholders and Business Partners; and
    – For a corporation, at least twenty (20) days prior to the meeting, notice shall be given to each shareholder by any means authorized under its bylaws, stating that the corporation shall be dissolved. Then at the meeting, the shareholders and the directors shall vote on whether or not the corporation shall be dissolved.
  • Customers.
  • Submission of requirements to appropriate government agencies to obtain required clearances/certifications.

To encapsulate the process of business closure, below is the simplified process for simplification:

I. DOLE/SSS/PHILHEALTH/PAG-IBIG

Firstly, the business entity would need to inform the Department of Labor and Employment (DOLE), Social Security System (SSS), PhilHealth, and Pag-Ibig.

Business Closure would affect the employees as to the termination of their employment on the ground of business closure and cessation of business under Article 298 of the Re-numbered Labor Code of the Philippines. Notice of Closure and termination must be sent to the DOLE at least thirty (30) days before the intended date of the employee’s termination. Kindly note that business closure would warrant the payment of separation pay amounting to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher.

Likewise, the business entity should notify SSS, Philhealth, and Pag-Ibig regarding the impending business closure in order to suspend the payment of mandatory government contributions.

II. LOCAL GOVERNMENT UNIT (BARANGAY LEVEL)

Secondly, the business entity would need to obtain a Certificate of Closure from the Local Government Unit, Barangay level, where the business is registered. The issuance of the Certificate of Closure would also require the payment of fees. Kindly note that the amount of fees to be paid differs from one local government unit to another.

III. LOCAL GOVERNMENT UNIT (CITY/MUNICIPAL LEVEL)

Thirdly, after obtaining a Certificate of Closure from the Local Government Unit before the barangay level, a Certificate of Closure is also required from the Mayor’s office – the city where the business is registered. This would similarly demand the payment of fees separate and distinct from the fees paid before the barangay.

IV. BUREAU OF INTERNAL REVENUE

Fourthly, the business entity needs to update the Bureau of Internal Revenue (“BIR”) of the cessation of business operations for the cancellation of its Tax Identification Number and the issuance of the Certificate of No Liability.

It is noteworthy to state that the process of business closure is prolonged during this stage due to the checking of open cases by the BIR. Open cases refer to the non-compliances of the business entity including but not limited to deficiency taxes, and unfiled tax returns. The Regional District Office, as well as the Main Office of the agency, performs this in order to ensure that business entity has no pending liabilities and obligations to the National Government.

V. DEPARTMENT OF TRADE AND INDUSTRY (DTI) / SECURITIES AND EXCHANGE COMMISSION (SEC)

Lastly, the business entity would need to apply for business closure before the Department of Trade and Industry or the Securities and Exchange Commission for the issuance of the Certificate of Closure, whichever is applicable.

Please bear in mind that in cases of corporations, the application for closure would not warrant the automatic dissolution of the separate and distinct identity of the corporation. The corporation would continue to exist for purposes of liquidation. During the liquidation proceedings, there would be an inventory of all the corporate assets, alongside with the listing of corporate liabilities. Should there be liabilities chargeable to the corporation, it would be satisfied with the liquidated corporate assets.

Kindly take note that the corporation is still required to file the reportorial requirements before the SEC, as well as the required returns before the BIR, during the process of business closure, to avoid penalties, fees, and surcharges.

For a detailed explanation of the aforementioned, we conducted a Webinar to guide you through the step-by-step procedure: https://www.facebook.com/MFLBR2009/videos/243634290044750/

Below are the requirements for business closures of the following entities:

Undoubtedly, business closure is a tedious and strenuous process. However, with proper guidance and assistance, closing your business would be a breeze and you will be at ease.

For further queries on this matter or other legal concerns, you may contact us from Mondays to Fridays, 9:00 AM to 6:00 PM, through our email: mfl@mflegal.com.ph, and our website at http://mfbr.com.ph.


What you need to know about DTI Memorandum Circular 20-29 dated 02 June 2020 (Supplemental Guidelines on Residential and Commercial Rents)

Lessors and lessees are stuck in a legal conundrum as to the interpretation of the previous circulars regarding residential and commercial rents during the imposition of community quarantines in the country. 

On 04 April 2020, the Department of Trade and Industry (“DTI”) issued DTI Memorandum Circular No. 20-12 series of 2020 which provided for the Guidelines on the concessions on residential and commercial rents of MSMEs. (Kindly click this link for more information regarding this circular: http://mfbr.com.ph/2020/04/11/30-day-grace-period-for-residential-and-commercial-rents/)

On 02 June 2020, DTI issued Memorandum Circular No. 20-29 series of 2020 providing for the Supplemental Guidelines on Residential Rents and Commercial Rents.

Below are the salient portions of the Circular which are vital as to concerns on residential and commercial rents during the imposition of community quarantines:

What are covered under DTI Memorandum Circular No. 20-29?

  • Residential Rents: any amount paid for the use or occupancy of a building and/or land, houses, apartment/condominium/town house unit, dormitory, room or bed space primarily for residential or dwelling purposes, regardless of the mode and terms of payment.
  • Commercial Rents:  any amount paid for the use or occupancy of a building and/or land, store, or space for commercial purposes, regardless of the mode and terms of payment.

What rents are covered by the Circular? 

  • Due dates of residential and commercial rents falling within the period of the covered community quarantine which shall not be earlier than March 17, 2020 and not later than the lifting of the covered community quarantine
  • For NCR:
    • Enhanced Community Quarantine (“ECQ”): 17 March 2020;
    • Modified Enhanced Community Quarantine (“MECQ”): 16 May 2020; and
    • General Community Quarantine: (“GCQ”) 01 June 2020.

What does the term “community quarantine” include?

  • ECQ, MECQ, and GCQ.

What are the rental concessions available under the said circular?

  1. Grace period of thirty (30) days; and

When is the commencement of the 30-day grace period to lessees?

  • The granting of the 30-day grace period shall commence:
    • From the lifting of the covered community quarantine, or 
    • From the date that the tenant is allowed to resume employment or business operation
  • whichever comes first, without incurring interests, penalties, fees, and other charges.
  • Amortization for six (6) months of cumulative rents which became due during the period of any of the covered community quarantine.

How will the cumulative rents be amortized?

  • The lessee shall execute and sign a promissory note or letter, undertaking to pay the deferred rent/s.
  • The payment of the amortized rents shall commence after termination of the thirty (30)-day minimum grace period without penalties, fees, and other charges. 
  • However, if a residential lessee’s employer or a commercial lessee’s business has been permitted to operate pursuant to a presidential proclamation, IATF resolution, and/or relevant ordinances notwithstanding the imposed community quarantine, the commencement of the grace period shall be made from the date that such employment or business was allowed to resume. 
  • Kindly note that failure thereof shall make such deferred rents due and demandable immediately following the end of the minimum grace period of 30 days.

Who may avail of the rental concessions under the said circular? 

  1. Residential lessees who:
  2. have lost their income during any of the community quarantines, or 
  3. whose employer/s or business/es were not allowed to operate by law/regulations/ordinances relevant to any covered community quarantine.
  4. Commercial lessee whose business is among those not permitted to operate pursuant to laws, regulations, or ordinances relevant to any covered community quarantine.

Kindly click this link for the industries which are allowed to operate under the community quarantines imposed in the country: https://www.facebook.com/MFLBR2009/posts/932665237200581

What if rents falling due during the covered community quarantine were already paid by the lessee, is the lessor mandated to return the amount paid by the lessee?

  • No, lessors are not obliged to refund residential and commercial rents paid by the lessees before or during the period of the community quarantine.

What are the reprieves that may be granted by lessors of commercial rents for MSMEs:

  1. Total or partial waiver of commercial rents falling due within the community quarantine imposed;
  2. Reprieve or discounts;
  3. Renegotiation of the lease term agreements; and
  4. Other recourses that may mitigate the impact of a covered community quarantine to the MSMEs

Can a lessee be evicted should he/she/it fails to pay the rental payment due?

  • Yes, but only after the lapse of the period from March 17, 2020 to the end of the grace period granted by his/her/its lessor.

Should the lessor/lessee violate relevant laws, regulations, and/or ordinances, will he/she/it be liable?

  • Yes, they may be held civilly, criminally, or administratively liable. 

What can a lessor/lessee do should there be violations of DTI Memorandum Circular No. 20-29?

  • Concerns and complaints may be brought before DTI personally or electronically. The following information are required:
  • Complete Name/Residence/Email Address/ Contact Nos. of lessor and lessee;
  • Complete address of the leased premises;
  • Date when rental payment is due;
  • Narration of relevant and material facts; and
  • Supporting documents. 

For further queries on this matter or other legal concerns, you may contact us from Mondays to Fridays, 9:00 AM to 6:00 PM, through our email: mfl@mflegal.com.ph, and our website at http://mfbr.com.ph.


10 Things You Should Know To Successfully Set-Up a One Person Corporation in the Philippines

With the enactment of Republic Act No. 11232, otherwise known as the “Revised Corporation Code of the Philippines”, a single stockholder may form a One Person Corporation (“OPC”).

1) Who may form an OPC?

Only a natural person, trust, or an estate may form an OPC.

2) Who cannot form an OPC?

  1. Banks and quasi-banks
  2. Preneed companies
  3. Trust companies
  4. Insurance companies
  5. Public and publicly-listed companies
  6. Non-chartered government-owned and -controlled corporations
  7. A natural person who is licensed to exercise a profession (for the purpose of exercising such profession) except as otherwise provided under special law

3) What is the minimum authorized capital stock?

  • No mininum requirement, except as otherwise provided by special law.

4) What positions may a single stockholder hold in the OPC?

  • A single stockholder shall be the sole director and president of the OPC. He/she may likewise be appointed as the treasurer, provided that the treasurer provides a bond computed based on the amount of the authorized capital stock (SEC Memorandum Circular No. 7, Series of 2019).

A single stockholder may not be the corporate secretary.

5) How will the company’s affairs be managed in case of the death or incapacity of a single stockholder?

  • The law requires a single stockholder to designate a nominee and an alternate nominee who shall, in the event of the single stockholder’s death or incapacity, take the place of the single stockholder as director and shall manage the corporation’s affairs. The nominee shall act as the director until the legal heirs of the single stockholder have been lawfully determined, and the heirs have designated one of them or have agreed that the estate shall be the single stockholder of the OPC. The alternate nominee shall step in as the director in case of the nominee’s inability, incapacity, death, or refusal to discharge the functions as director and manager of the corporation.

6) May an ordinary corporation be converted into an OPC, and vice-versa?

  • Yes, subject to compliance with the application requirements with the Securities and Exchange Commission.

7) I am a foreign national. Am I allowed to form an OPC?

  • Yes, subject to the applicable capital requirement and constitutional and statutory restrictions on foreign participation in certain investment areas and activities (SEC Memorandum Circular No. 7, Series of 2019).

8) What are the documentary requirements for an OPC?

  1. Cover Sheet
  2. Articles of Incorporation for One Person Corporation
  3. Written Consent from the Nominee and Alternate Nominee
  4. Other Requirements, if applicable:
    * Proof of Authority to Act on Behalf of the Trust or Estate (for trusts and estates incorporating as OPC)
    * Foreign Investments Act (FIA) Application Form (for foreign natural person)
    * Affidavit of Undertaking to Change Company Name, in case not incorporated
    * in the Articles of Incorporation
    * Tax Identification Number (TIN) for Filipino single stockholder
    * Tax Identification Number (TIN) or Passport Number for Foreign single stockholder
  5. Filing Fees. The filing fees include the Registration Fee, Legal Research Fee, Name Reservation Fee, Documentary Stamp Fee, and the FIA Fee (if applicable).

9) How do I proceed with the application?

  1. Apply for the reservation of the corporate name. To avoid the denial of your request, the OPC name must be distinct and not similar to another reserved or registered corporate name, and must not be contrary to law, public morals, good customs or public policy. “OPC” should be indicated at the end of the corporate name.
  2. Submit the duly accomplished Articles of Incorporation with attached written consent of the nominee and alternate nominee and other requirements required for registration, for pre-processing.
  3. Pay the Filing Fees.
  4. Submit the hard copies of the signed and notarized documents together with the proof of
  5. payment of filing fees at the SEC-CRMD Receiving Unit.
  6. The SEC will thereafter issue the Certificate of Registration as One Person Corporation.

10) Can I register the OPC online?

  • Yes. On 08 April 2020, the SEC issued a notice providing for an interim Online Registration System for an OPC and corporations with two to four person incorporators. With the Online Registration System, an applicant or his duly authorized representative may input the proposed corporate name together with its trade name/s, if any, and the data to complete its corporate profile. The applicant must provide a valid and existing email account. The SEC User Guide may be accessed here: https://apps004.sec.gov.ph:8001/docs/UserGuide-InterimSystem.pdf

Register your OPC now. If you would like to discuss how we might assist you in accomplishing the requirements, you may schedule an appointment with @The Law Firm of Mallari Fiel Brillante Ronquillo thru mfl@mflegal.com.ph. Thank you.


No More Extension of Income Tax Payment on June 14, 2020

The original deadline for income tax payments was pushed back thrice already, first to May 15, 2020 then to May 29, 2020 and finally to June 14, 2020.

According to the Bureau of Internal Revenue (BIR) this June 14, 2020 deadline will no longer be extended even if the community quarantine will be prolonged.

Thus, on 21 May 2020, the BIR issued Revenue Regulation No. 12-2020 (RR No. 12-2020) which, among others, repealed Section 3 of RR No. 11-2020. Under this latest regulation, the tax agency voided a provision on its earlier issuance which stipulated that so long as the community quarantines are extended, tax payment cut-offs would be deferred. As it now stands, the defined extended due dates under RR No. 11-2020 shall remain in effect regardless of any extension or modification of quarantine.

Since the provided due date for income tax payment is June 14, 2020 which falls on a weekend, the same shall be moved to June 15, 2020, Monday, being the next working day.

For reference, listed below are the respective due dates of some other taxes:

Under the latest regulation, taxpayers are again reminded to pay the respective returns on or before the deadlines. The Taxpayers are likewise reminded that if they file their tax returns within the original deadline or prior to the extended deadline, they can amend their tax returns at any time on or before the extended due date. An amendment that will result in additional tax to be paid can still be paid without the imposition of corresponding penalties (surcharge, interest and compromise penalties) if the same shall be done not later than the extended deadlines as provided under existing rules and regulations.

A Taxpayer whose amended returns will result in overpayment of taxes paid, can opt to carry over the overpaid tax as credit against the tax due for the same tax type in the succeeding periods/ tax returns, aside from filing for claim for refund.

For queries, updates and other legal concerns, you may contact us from Mondays to Fridays, 9:00 AM to 6:00 PM, through the following:

Email: mfl@mflegal.com.ph;

Website: http://mfbr.com.ph;

Facebook page:  https://www.facebook.com/MFLBR2009/


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