Manila
EN BANC
[ G.R. No. 246027. June 21, 2022 ]
SECURITIES AND EXCHANGE COMMISSION, PETITIONER, VS. 1ACCOUNTANTS PARTY-LIST, INC., REPRESENTED BY ITS PRESIDENT, CHRISTIAN JAY D. LIM, CHRISTIAN JAY D. LIM IN HIS CAPACITY AS CPA, FROILAN G. AMPIL, ALLAN M. BASARTE, VIRGILIO F. AGUNOD, AND JONAS P. MASCARIÑAS, RESPONDENTS.
D E C I S I O N
ROSARIO, J.:
This resolves the Petition for Review1 filed under Rule 45 of the Rules of Court by the Securities and Exchange Commission (SEC or petitioner) to assail the Decision2 dated March 20, 2018 and Order3 dated February 20, 2019 of the Regional Trial Court (RTC) of Davao City, Branch 15, in Civil Case No. R-DVO-15-02294-SC.
The case stems from a Petition for Declaratory Relief with Prayer for Preliminary Injunction and Temporary Restraining Order4 filed by 1Accountants Party List, Inc. (respondent), represented by its President, Christian Jay D. Lim, who also filed the said petition in his personal capacity as a Certified Public Accountant (CPA), as well as fellow CPAs Froilan G. Ampil, Allan M. Basarte, Virgilio F. Agunod, and Jonas P. Mascariñas against the SEC before the RTC.
Respondent is a non-stock and non-profit sectoral organization duly organized under the SEC.5 Petitioner is a government regulatory agency with the mandate to supervise the corporate sector and to regulate the securities industry in the Philippines.6
Respondent's petition for declaratory relief assailed petitioner's regulations, particularly Rule 68, paragraph 3 of the Amended Implementing Rules and Regulations (IRR)7 of the Securities Regulation Code8 (SRC) and SEC Memorandum Circular (MC) No. 13-2009,9 and all other similar memorandum circulars which, since 2002, have required the accreditation of CPAs acting as external auditors of corporations issuing registered securities and possessing secondary licenses (assailed issuances).10
Paragraph 3 of Rule 68 of the Revised SRC provides:
3. QUALIFICATIONS AND REPORTS OF INDEPENDENT AUDITORS
x x x x
B. Additional Requirements for Independent Auditors of SEC-Regulated Entities and Other Entities
(1) Accreditation Categories
The accreditation of independent auditors serves as a quality control mechanism or quality assurance review by the Commission on the work of the accredited external auditors.
The following entities shall have independent auditors accredited by the Commission11 x x x. (Emphases and underscorings supplied)
On the other hand, SEC MC No. 13-2009 provides that:
x x x x
4.1. Only an external auditor and his auditing firm (if applicable) who is accredited by the Commission12 shall be engaged by corporations covered by this Circular for the statutory audit of their financial statements.
x x x x
6.3. Applications for initial or renewal of accreditation of external auditors or partners of auditing firms shall be assessed the following filing fees:
| i. |
Group A |
₱ 5,000.00 |
| ii. |
Group B |
3,000.00 |
| iii. |
Group C or D |
2,000.00 |
x x x x
7.3. Applications for initial or renewal of accreditation of auditing firms shall be assessed the following filing fees:
| iv. |
Group A |
₱20,000.00 |
| v. |
Group B |
15,000.00 |
| vi. |
Group C or D |
5,000.00 |
x x x x
SEC. 11. Grounds for Imposition of Penalties
An external auditor or auditing firm shall be assessed a penalty under Section 12 hereof, after due notice and hearing by the Commission, for any of the following violations:
x x x x
12.4. Violation of Accreditation Requirement. Any auditing firm or responsible external auditor (individual practitioner) who enters into an engagement with a company under Group A, B, or C without the appropriate accreditation from the Commission13 shall be subject to the following scale of fines:
| Group A companies |
|
Auditing Firm |
| First offense |
₱100,000.00 |
| Second offense |
200,000.00 |
| Third offense |
400,000.00 |
| Group B companies |
|
Auditing Firm |
| First offense |
₱50,000.00 |
| Second offense |
100,000.00 |
| Third offense |
200,000.00 |
| Group C companies |
|
Auditing Firm |
External Auditor |
| First offense |
₱25,000.00 |
₱10,000.00 |
| Second offense |
50,000.00 |
20,000.00 |
| Third offense |
100,000.00 |
40,000.00 |
Any company covered by this Circular that engages the services of an external auditor who is not accredited by the Commission14 under the appropriate category shall be subject to the following penalties without prejudice to the other administrative sanctions provided for in Section 54 of the SRC and its implementing rules and regulations:
| Group A |
₱100,000.00 |
| Group B |
₱50,000.00 |
| Group C |
25,000.00 |
(Emphases and underscorings supplied)
The foregoing provisions are assailed by respondent on the ground that these: (1) are issued without authority (ultra vires); (2) contravene Republic Act No. 929815 (R.A. 9298) or the Philippine Accountancy Act of 2004; and (3) restrict the right of CPAs to practice accountancy. MC No. 13-2009, in particular: (4) violates the right to due process and (5) violates the right to equal protection of the law.16
In its Comment17 dated March 10, 2016, filed before the RTC, petitioner SEC countered that: (1) it is authorized under pertinent laws to issue and adopt the herein assailed issuances; (2) the herein assailed issuances do not contravene R.A. No. 9298 nor restrict the right of CPAs to practice their profession; (3) MC No. 13-2009 did not violate respondent's due process rights because it was published in a newspaper of general circulation and filed with the UP Law Center; and (4) MC No. 13-2009 does not violate the equal protection clause because it rests on a valid and reasonable classification.18
In its Rejoinder19 to the abovementioned Comment dated June 20, 2016, herein respondent reiterated that petitioner has no authority to regulate the accounting profession.20 The laws cited by the petitioner as the source of its authority, the Corporation Code and the SRC, provide for general rule making powers, and are not specific grants of authority.21 Respondent pointed out that the applicable law is RA 9298, which lodges the power to regulate accountants with the Professional Regulatory Board of Accountancy (Board) to wit:
Sec. 31. Accreditation to Practice Public Accountancy Certified public accountants, firms and partnerships of certified public accountants, engaged in the practice of public accountancy, including partners and staff members thereat: shall register with the Commission and the Board, such registration to be renewed every three (3) years; Provided, That subject to the approval of the Commission, the Board shall promulgate rules and regulations for the implementation of registration requirements including the fees and penalties for violation thereof. (Emphasis and underscoring supplied)
Thus, the mandatory accreditation imposed by petitioner usurps the Board's authority. Respondent added that financial reports submitted to the SEC are primarily the responsibility of the management of the reporting company and not the external auditor.22
In a Decision23 dated March 20, 2018, the RTC declared Paragraph 3, Rule 68 of the IRR of the SRC and SEC MC No. 13-2009 null and void for being contrary to R.A. 9298, unconstitutional, and issued ultra vires. Petitioner moved for reconsideration but was likewise denied.
Hence, this Rule 45 petition before Us.
Petitioner argues that it is authorized by the SRC and the Corporation Code to impose the assailed issuances, that the said issuances do not contravene R.A. No. 9298 nor restrict the right of accountants to practice their profession, and that SEC MC No. 13-2009 does not violate the equal protection clause.24
With regard to its authority, petitioner cites the following provisions in the SRC:
SEC. 5. Powers and Functions of the Commission.
x x x x
(a) Have jurisdiction and supervision over all corporations, partnerships or associations who are the grantees of primary franchises and/or a license or permit issued by the Government;
x x x x
(d) Regulate, investigate or supervise the activities of persons to ensure compliance;
x x x x
(f) Impose sanctions for the violation of laws and the rules, regulations and orders issued pursuant thereto;
(g) Prepare, approve, amend or repeal rules, regulations and orders, and issue opinions and provide guidance on and supervise compliance with such rules, regulations and orders;
x x x x
(n) Exercise such other powers as may be provided by law as well as those which may be implied from, or which are necessary or incidental to the carrying out of, the express powers granted the Commission to achieve the objectives and purposes of these laws.
x x x x
SEC. 68. Special Accounting Rules.
The Commission shall have the authority to make, amend, and rescind such accounting rules and regulations as may be necessary to carry out the provisions of this Code, including rules and regulations governing registration statements and prospectuses for various classes of securities and issuers, and defining accounting, technical and trade terms used in this Code. Among other things, the Commission may prescribe the form or forms in which required information shall be set forth, the items or details to be shown in the balance sheet and income statement, and the methods to be followed in the preparation of accounts, appraisal or valuation of assets and liabilities, determination of depreciation and depletion, differentiation of recurring and non-recurring income, differentiation of investment and operating income, and in the preparation, where the Commission deems it necessary or desirable, of consolidated balance sheets or income accounts of any person directly or indirectly controlling or controlled by the issuer, or any person under direct or indirect common control with, the issuer. (Emphasis and underscoring supplied)
Petitioner also cites the Corporation Code:
SEC. 141. Annual report of corporations.
Every corporation, domestic or foreign, lawfully doing business in the Philippines shall submit to the Securities and Exchange Commission an annual report of its operations, together with a financial statement of its assets and liabilities, certified by any independent certified public accountant in appropriate cases, covering the preceding fiscal year and such other requirements as the Securities and Exchange Commission may require. Such report shall be submitted within such period as may be prescribed by the Securities and Exchange Commission. (Emphasis and underscoring supplied)
Petitioner likewise emphasizes the Memorandum of Agreement (MOA) it jointly executed with the Bangko Sentral ng Pilipinas (BSP), the Insurance Commission (IC) where it was agreed that:
1. x x x BOA shall register only the firm or partnership but shall attach in the certificate of accreditation a list of the partners considered in its evaluation. The firm and the individual partners thereof shall each apply for accreditation with SEC, BSP, or IC.
x x x x
2. x x x For SEC, BSP, or IC accreditation, the firm and each partner who audits or who intends to audit regulated entities shall be the subject of such accreditation.25 (Emphasis and underscoring supplied)
All of the foregoing are relied upon by the petitioner as bases for its authority to issue Rule 68 and SEC MC No. 13-2009.26
With regard to R.A. No. 9298 and the right of CPAs to practice their profession, petitioner insists that these are not contravened by its issuances, which merely regulate the practice of accountancy pursuant to the State's police power. Petitioner's authority to impose the accreditation requirement falls under police power since the purpose of its issuances is to ensure the quality of financial reporting for the protection of the investing public.27
As for the equal protection clause, petitioner argues that SEC MC 13-2009 satisfies the four-pronged test of reasonableness: (1) it rests on a substantial distinction as it requires accreditation only for the class of CPAs employed as external auditors of corporations issuing registered securities and possessing secondary licenses; (2) the classification is germane to the purpose of the law, the SRC, in that it serves the purpose of promoting control and discipline in the financial environment for the protection of the investing public; (3) the classification is not limited to existing conditions only as it is meant to be applied not only to current but also to future CPAs; and (4) the circular applies equally to all members of the same class as all CPAs acting as external auditors of the companies concerned are required to get accreditation.28
In a Comment29 dated September 28, 2019, respondent maintains that: (1) petitioner has no legal authority to regulate the accounting profession and thus (2) acted ultra vires when it required additional accreditation, that (3) petitioner may not distinguish among CPAs when the law does not, and that (4) it misconstrued the role of CPAs engaged to conduct statutory audit of financial statements.30
With regard to the authority invoked by the SEC for its issuances, respondent points out that it conflated the covered corporate entities with individual CPAs. Section 5 (a) of the SRC, for one, grants the SEC "jurisdiction and supervision over all corporations, partnerships or associations31 who are the grantees of primary franchises and/or a license or permit issued by the Government." Clearly, this does not include individual CPAs.32
Section 5 (d) of the SRC, which empowers the SEC to "regulate, investigate or supervise the activities of persons to ensure compliance" pertains to persons entrusted by law to manage corporations33 that issue securities to the public, and not to the individual CPAs that audit the said corporations. It would be unethical for a CPA to audit a corporation if he or she is likewise managing it.
Section 5 (f) of the SRC, which imposes sanctions for violation of the subject laws, rules, regulations and orders, pertains to violations committed by corporate officers, and not by CPAs.
Section 5 (n) of the SRC, which provides for the SEC's exercise of "such other powers as may be provided by law as well as those which may be implied from, or which are necessary or incidental to the carrying out of, the express powers granted the Commission34 to achieve the objectives and purposes of these laws" cannot include a power already expressly granted by Congress to another body, namely the Board of Accountancy.35
Section 141 of the Corporation Code which requires every corporation doing business in the Philippines to submit annual reports to the SEC "and such other requirements as the Securities and Exchange Commission may require" pertains to corporations, and again does not extend to individual CPAs.36
In sum, petitioner's reliance on the foregoing provisions in the SRC and the Corporation Code are misplaced. The SEC's jurisdiction is only over juridical entities and their directors, officers and stockholders, as well as those that directly deal with the securities issued by said entities, such as brokers, dealers, salesmen, underwriters and promoters. Individual CPAs are not under petitioner's authority and jurisdiction, and thus cannot be governed by the same rules.
Petitioner also anchors its authority on the MOA it executed with the BSP and the IC. Respondent contends that the said MOA is void as it contravenes Section 31 of the Philippine Accountancy Act,37 which exclusively lodged the power to promulgate rules and regulations for the accreditation of CPAs with the Board:
Sec. 31. Accreditation to Practice Public Accountancy- Certified Public Accountants, firms and partnerships of certified public accountants, engaged in the practice of public accountancy, including partners and staff members thereof, shall register with the Commission and the Board, such registration to be renewed every three (3) years; Provided, That subject to the approval of the Commission, the Board shall promulgate rules and regulations for the implementation of registration requirements including the fees and penalties for violation thereof. (Emphasis and underscoring supplied)
The Board cannot delegate to another body what Congress has delegated to it absent a provision to the contrary, pursuant to the rule "potestas delegate non delegare potest."38 Thus, petitioner acted ultra vires when it issued the assailed regulations.
Respondent also posits that SEC MC No. 13-2009's classification of CPAs into four (4) groups of A to D for accreditation purposes has no basis in law and is thus invalid.39 Since no law provides for the classification of CPAs, the SEC has no legal mandate to impose its own classification.40
Lastly, respondent argues that petitioner misconstrued the role of external auditors as being responsible for the reliability of financial statements. However, respondent points out that this responsibility actually falls on the management of the company, and not the external auditors. Rule 68 of the Amended IRR of the SRC provides:
STATEMENT OF MANAGEMENT'S RESPONSIBILITY FOR FINANCIAL STATEMENTS.
The management of (name of reporting company) is responsible for the preparation and fair presentation of the financial statements for the year (s) ended (date), in accordance with the prescribed financial reporting framework indicated therein. This responsibility includes designing and implementing internal controls relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error, selecting and applying appropriate accounting policies, and making accounting estimates that are reasonable in the circumstances.41 (Emphasis and underscoring supplied)
Thus, the accreditation requirement has no rational connection with ensuring the reliability of financial reports. The accreditation might better serve its purpose if it were imposed instead on the CPAs who prepare the financial statements, and not on the external auditors who merely render an audit opinion on the financial statements.42
Although both parties argue their stance on several points, We find that this case presents only one principal issue: did the RTC correctly declare Paragraph 3, Rule 68 of the IRR of the SRC and SEC MC No. 13-2009 null and void?
We rule in the affirmative.
Petitioner bases its authority to issue the assailed regulations on several provisions of the SRC and the Corporation Code. However, these all pertain to juridical entities such as corporations. We reiterate the said provisions:
SRC:
SEC. 5. Powers and Functions of the Commission.
x x x x
(a) Have jurisdiction and supervision over all corporations, partnerships or associations who are the grantees of primary franchises and/or a license or permit issued by the Government; x x x. (Emphasis and underscoring supplied)
Corporation Code:
SEC. 141. Annual report of corporations.
Every corporation,43 domestic or foreign, lawfully doing business in the Philippines shall submit to the Securities and Exchange Commission an annual report of its operations, together with a financial statement of its assets and liabilities, certified by any independent certified public accountant in appropriate cases, covering the preceding fiscal year and such other requirements as the Securities and Exchange Commission may require. Such report shall be submitted within such period as may be prescribed by the Securities and Exchange Commission. (Emphasis and underscoring supplied)
Pursuant to the maxim of statutory construction that "quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est" or "when there is no ambiguity in the language of an instrument, no interpretation is to be made contrary to the words,"44 it follows that the cited provisions clearly apply to juridical entities only. Nowhere does it provide that such should extend to individuals, moreso CPAs.
The other provisions cited by petitioner m the SRC must be read together with Section 5 (a):
Courts have to take the thought conveyed by the statute as a whole; construe the constituent parts together; ascertain the legislative intent from the whole act; consider each and every provision thereof in light of the general purpose of the statute; and endeavor to make every part effective, harmonious, and sensible. (Emphasis and underscoring supplied)
Thus, all other powers granted by the SRC provisions relied upon by petitioner flow from the SEC's jurisdiction over corporations, and cannot be made to apply to individual CPAs. While petitioner may regulate corporations as well as the securities market, such regulation does not extend to an authority to restrict, even in the slightest degree, the practice of accountancy.
Moreover, the accreditation requirement imposed by the assailed issuances amounts to a licensing requirement which curtails the right of CPAs to practice their profession. In the case of Airlift Asia Customs Brokerage, Inc. vs. Court of Appeals (Airlift Asia),45 the Court stated that:
A license is a "permission to do a particular thing, to exercise a certain privilege or to carry on a particular business or to pursue a certain occupation." Since it is only by complying with CAO 3-2006 that a customs broker can practice his profession before the BOC, the accreditation takes the form of a licensing requirement proscribed by the law. It amounts to an additional burden on PRC-certified customs brokers and curtails their right to practice their profession.46 (Emphases and underscorings supplied)
Similarly, in the case before Us, CPAs are burdened with the accreditation requirement which is in addition to their CPA license. Proof of this burden is the scale of fines (Section 12.4) imposed by SEC MC No. 13-2009 for violation of the said requirement. Thus, CPAs are left with no choice but to go through the accreditation process should they wish to conduct a statutory audit of corporate financial statements, when in fact, such is part of the practice of accountancy for which their CPA license already suffices.
At this juncture, the Court wishes to emphasize the following provisions in R.A. 9298 or the Philippine Accountancy Act of 2004:
Section 9. Powers and Functions of the Board. - The Board shall exercise the following specific powers, functions and responsibilities:
(b) To supervise the registration, licensure and practice of accountancy in the Philippines;
x x x x
(g) To monitor the conditions affecting the practice of accountancy and adopt such measures, including promulgation of accounting and auditing standards, rules and regulations and best practices47 as may be deemed proper for the enhancement and maintenance of high professional, ethical, accounting and auditing standards: That domestic accounting and auditing standards rules and regulations shall include the international accounting and auditing standards, and generally accepted best practices;
(h) To conduct an oversight into the quality of audits of financial statements though a review of the quality control measures48 instituted by auditors in order to ensure compliance with the accounting and auditing standards and practices,
x x x x
Sec. 31. Accreditation to Practice Public Accountancy- Certified Public Accountants, firms and partnerships of certified public accountants, engaged in the practice of public accountancy, including partners and staff members thereof, shall register with the Commission and the Board, such registration to be renewed every three (3) years; Provided, That subject to the approval of the Commission, the Board shall promulgate rules and regulations for the implementation of registration requirements including the fees and penalties for violation thereof. (Emphases and underscorings supplied)
It appears from the foregoing that the power to supervise the accounting profession and to impose regulations on CPAs is exclusively delegated to the Professional Regulatory Board of Accountancy. Yet, this exclusive delegation is contravened by the provisions in MC No. 13-2009, in particular penal clauses such as the aforementioned scale of fines (Section 12.4) and the suspension or delisting of accreditation (Section 12.6), to wit:
12.6. Suspension or Delisting of Accreditation
i. After due notice and hearing, the accreditation of an auditing firm or external auditor shall be suspended for any of the following grounds:
x x x x
The delisted firm under item (b) above may re-apply for accreditation provided that two years have lapsed from the date of delisting, and the assessed penalty for each suspended or delisted partners or auditors is paid or the requirement is complied with. If the firm has a derogatory record with the Commission, it shall not be qualified for a higher category of accreditation (Group A or B).
While petitioner argues that there is no barrier preventing CPAs from applying for accreditation, the accreditation itself is the barrier, however flimsy, which prevents the practice of external auditing of covered entities.
Petitioner further argues that it executed a MOA with the Board which allows for such accreditation with the SEC. However, We remind petitioner of another legal maxim, "delegata potestas non potest delegari" or what has been delegated by Congress can no longer be further delegated or redelegated by the original delegate to another:
x x x having been reposed by law exclusively with the respondent Board, it has no choice but to exercise the same as mandated by law, i.e., as a collegial body, and not transfer it elsewhere or discharge said power through the intervening mind of another.49 Delegata potestas non potest delegari — a delegated power cannot be delegated." (Emphases and underscorings supplied)
Moreover, a private agreement such as the MOA cannot operate to validate a transgression of a provision of law.50 Thus, the MOA is void and cannot serve as authorization for the petitioner to make the assailed issuances.
WHEREFORE, the present petition for review on certiorari is DENIED. The Decision dated March 20, 2018 of the Regional Trial Court (RTC), Davao City, Branch 15, in Civil Case No. R-DVO-15-02294-SC is AFFIRMED. Paragraph 3, Rule 68 of the IRR of the SRC and SEC MC No. 13-2009 are declared null and void.1a⍵⍴h!1
SO ORDERED.
Gesmundo, C.J., Leonen, SAJ., Caguioa, Hernando, Inting, Zalameda, M. Lopez, Gaerlan, J. Lopez, Dimaampao, Marquez, Kho, Jr., and Singh, JJ., concur.
Footnotes
1 Rollo, pp. 16-57.
2 Id. at 58-62. Penned by Presiding Judge Mario C. Duaves.
3 Id. at 63-65.
4 Id. at 255-269.
5 Id. at 255.
6 Id. at 256.
7 Amended SRC Rules dated December 30, 2003.
8 Republic Act No. 8799.
9 Revised Guidelines on Accreditation of Auditing Firms and External Auditors.
10 Rollo, p. 266.
11 https://www.sec.gov.ph/wp-content/uploads/2020/07/2019AccountantsInfo_RevisedRegulationCodeRule68.pdf (visited March 16, 2022); or Revised Securities Regulations Code (SRC) Rule 68 dated August 19, 2019.
12 Rollo, p. 372.
13 Id. at 384.
14 Id. at 385.
15 AN ACT REGULATING THE PRACTICE OF ACCOUNTANCY IN THE PHILIPPINES, REPEALING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 692, OTHERWISE KNOWN AS THE REVISED ACCOUNTANCY LAW, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES; APPROVED MAY 13, 2004.
16 Rollo, pp. 543-550.
17 Id. at 273-298.
18 Id. at 276-277.
19 Id. at 299-307.
20 Id. at 301.
21 Id.
22 Id. at 304-305.
23 Supra note 2.
24 Id. at 23.
25 Id. at 28.
26 Id. at 24-36.
27 Id. at 44-49.
28 Id. at 39-44.
29 Id. at 541-553.
30 Id. at 543-544.
31 Emphasis supplied.
32 Rollo, p. 544.
33 Emphasis supplied.
34 Emphasis supplied.
35 Rollo, p. 545.
36 Id.
37 AN ACT REGULATING THE PRACTICE OF ACCOUNTANCY IN THE PHILIPPINES, REPEALING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 692, OTHERWISE KNOWN AS THE REVISED ACCOUNTANCY LAW, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES, otherwise known as the "Philippine Accountancy Act of 2004." Approved MAY 13, 2004.
38 Id. at 546-547.
39 Id. at 547.
40 Id. at 548.
41 Id. at 549.
42 Id. at 550.
43 Id.
44 Dante B. Gatmaytan. Legal Method Essentials 2.0. (2014).
45 739 Phil. 718 (2014).
46 Id. at 730.
47 Id.
48 Id.
49 Id.
50 Art. 1306 of the New Civil Code, provides:
Art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.
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