BIR Guidelines on Subpoenas Duces Tecum

Legal basis and implementing purpose

Section 5 of the National Internal Revenue Code of 1997 (NIRC), as amended authorizes the Commissioner of Internal Revenue to obtain information, summon and examine, and take testimony of persons to ascertain the correctness of returns or determine tax liability, or in collecting such liability, or in evaluating tax compliance.
The Order is issued to delineate and update procedures for the issuance and enforcement of Subpoenas Duces Tecum (SDTs) to ensure full implementation of Sections 5, 14, 266 and related provisions of the NIRC, as amended.
The Order’s framework ties SDT enforcement to both verification/investigation processes under BIR operations and criminal prosecution for non-compliance.

Coverage: who receives SDTs

SDTs cover persons/entities enumerated under Section 5 of the NIRC, as amended, including the person liable for tax or required to file a return, or any officer or employee of such person.
SDTs cover any person having possession, custody, or care of the books of accounts and other accounting records containing entries relating to the business of the person liable for tax.
SDTs cover any person other than the person whose internal revenue tax liability is subject to audit or investigation.
SDTs cover any person from any office or officer of the national and local governments, government agencies and instrumentalities, including the Bangko Sentral ng Pilipinas, and government-owned or controlled corporations (GOCCs).

Form, SDT serials, and signing

BIR Form No. 0713 is used for all SDTs issued under this Order.
Every SDT must have a serial number following the format prescribed for each SDT.
The date of issuance of the SDT is the date when it was officially signed.
Serial number format is (Office Code - Year of Issuance - Series Number), where the Series Number begins from 01 for the first SDT and increases in numerical order for subsequent SDTs.
Office codes prescribed under existing issuances are followed.

Written notice and request process

The Head of the Revenue District Office/Large Taxpayers Audit Division/Large Taxpayers District Office/National Investigation Division/Special Investigation Division concerned, or any other officer duly delegated by the Commissioner (e.g., Head of the Letter Notice Task Force), issues a written notice to the covered persons to provide information or the pertinent books of accounts, accounting records, and specific documents.
A duplicate copy of the written notice, duly acknowledged/received by the served person or authorized representative, forms part of the docket of the case.
If requested information/records are not furnished within the period prescribed in the written notice, or if submitted information/records are incomplete, the concerned revenue officer conducting verification/investigation shall request issuance of the SDT through a Memorandum Report.
The Memorandum Report must state relevant facts, specify the particular documents or records not made available, and identify the taxpayer liable or the third party/office concerned.
SDT issuance requests are submitted to:
- the Assistant Commissioner, Enforcement and Advocacy Service through the Prosecution Division at the National Office;
- the Assistant Commissioner, Large Taxpayers Service through the Prosecution Division for taxpayers under Large Taxpayers Service jurisdiction, including LTDOs;
- Revenue Regional Directors through the Legal Divisions for Regional Offices; or
- any other officer duly delegated by the Commissioner.
The records of the case are attached to the Memorandum Report.

Evaluation, SDT preparation, and contents

The Prosecution Division (National Office), the Legal Divisions (Regional Offices), or any other duly delegated officer evaluates the SDT request within two (2) working days from receipt.
If the request is not immediately acted on, the evaluators return the case to its origin for further documentation or action.
If the request is meritorious, the evaluators prepare the corresponding SDT in three (3) copies for signature of the designated signatories, including the Assistant Commissioner, Enforcement and Advocacy Service; Assistant Commissioner, Large Taxpayers Service; Revenue Regional Director; or any other officer duly delegated by the Commissioner.
Copy distribution is:
- Original — served to the taxpayer;
- Duplicate — attached to the docket of the case;
- Triplicate — action lawyer file.
SDTs require the concerned person to appear and submit the mandated information/documents at an appointed time, date, and place before the SDT signatory.
The SDT’s scheduled time must be within regular business hours, or between eight o’clock in the morning and five o’clock in the afternoon during the work week, excluding holidays.
The venue is the BIR office of the signatory of the SDT.
For corporations, partnerships, or associations, SDTs are issued to the partner, president, general manager, branch manager, treasurer, registered officer-in-charge, employees, or other persons responsible for the custody of required books/records or for providing required information.
To ascertain incumbent positions, concerned revenue officers may access the latest General Information Sheet filed with the Securities and Exchange Commission.
For national and local governments, government agencies and instrumentalities, including the Bangko Sentral ng Pilipinas, and GOCCs, SDTs are issued to the head of the office/agency/instrumentality/political subdivision/GOCC.
If the head complies through a representative, the representative presents the SDT, a written authorization letter from the head, and sufficient proof of identification.

Compliance period and service requirements

The SDT’s compliance date for submission of books of accounts and other accounting records is set on the fourteenth (14th) day from the SDT’s date of issuance.
SDT service is effected by revenue officers assigned to investigate the case, but service may be made by any other internal revenue officer authorized for the purpose.
The offices that transmit the signed SDT must ensure it is served according to the rules on service.
SDTs must be served within three (3) working days from receipt by the concerned revenue officers.
Personal service is the rule and is done by delivering a copy of the SDT personally to the party at the party’s registered or known address, or wherever the party may be found.
“Known address” means a place other than the registered address where business activities of the party are conducted, or the party’s place of residence.

Substituted service and mailing rules

Substituted service is used when the party is not present at the registered or known address under the following circumstances:
- The SDT may be left at the party’s registered address with the party’s clerk or a person having charge thereof.
- If the known address is a business location, the SDT may be left with the party’s clerk or a person having charge thereof.
- If the known address is the residence, substituted service may be made by leaving the copy with a person of legal age residing therein.
If no person is found at the party’s registered or known address:
- revenue officers bring a barangay official and two (2) disinterested witnesses;
- the witnesses personally observe and attest to the absence; and
- the SDT is given to the barangay official.
The bottom portion of the SDT must contain the facts, including the names, official position, and signatures of the witnesses.
If the party is found at the registered or known address (or another place) but refuses to receive the SDT:
- revenue officers bring a barangay official and two (2) disinterested witnesses in the presence of the party;
- the witnesses observe and attest to the refusal; and
- the SDT is given to the barangay official.
The bottom portion of the SDT must contain the facts, including the names, official position, and signatures of the witnesses.
Service by mail is done by sending a copy of the SDT by registered mail to the party’s registered or known address, with instruction to the Postmaster to return the mail to the sender after ten (10) days if undelivered.
A copy of the SDT may also be sent through a reputable professional courier service.
If no registry or reputable professional courier service is available in the locality of the addressee, service may be done by ordinary mail.

Proof of service and records

The server must accomplish the bottom portion of the SDT.
The server must prepare a written report under oath before a Notary Public or any person authorized to administer oath under Section 14 of the NIRC, as amended, stating the manner, place, and date of service, the recipient’s name (or barangay official/professional courier company), and other relevant information.
The registry receipt from the post office or the official receipt from the courier service containing sufficiently identifiable details of the transaction constitutes sufficient proof of mailing and must be attached to the case docket.
The head of the office issuing the SDT must maintain a record of the date of personal service or service by mail and must identify the mode of service of the summons with adequate detail.

Enforcement: appearance, consolidation, and reporting

Revenue officers must be present during the appointed time, date, and place to check whether the submitted records are complete and correspond to what is required in the SDT.
Non-compliance with the presence requirement subjects violators to administrative liability.
When revenue officers verify that records presented are substantially complete, the submitted documents are consolidated with the case records and referred back to the appropriate office for continuation of the investigation.
The concerned revenue officer must submit a written report to the issuing office that the documents/records indicated in the SDT have been submitted, or that there was no submission, or that the documents presented were incomplete.
If there is no submission or an incomplete presentation, the action lawyer must request a conference with the concerned revenue officers.
The conference must be scheduled on the fifth (5th) working day from the date set for compliance with the SDT.
During the conference stage, revenue officers and the action lawyer work jointly in documenting/gathering evidence for the criminal prosecution of the individual who disobeyed the SDT.
Payment of the administrative penalty does not excuse the taxpayer/person summoned from complying with the SDT.

Criminal prosecution for failure to obey SDT

The action lawyer must prepare a Letter-Complaint addressed to the Office of the Prosecutor within seven (7) working days from the conference stage.
The Letter-Complaint must recommend criminal prosecution for violation of Section 266 (Failure to Obey Summonses) of the NIRC, as amended, naming the individual taxpayer or third party, or the responsible officer(s)/partner(s) when the taxpayer or third party is a corporation, partnership, association, or office.
When the taxpayer concerned is a corporation, association, or general co-partnership, the sanctions mandated under Section 256 (Penal Liabilities of Corporations) of the NIRC, as amended are likewise imposed and invoked in filing the criminal case.
The Letter-Complaint must be accompanied by a Complaint-Affidavit and its supporting evidentiary documents, properly marked.
Revenue officers who have personal knowledge of the non-compliance with the SDT act as the complainants in preparing the Complaint-Affidavit.
Signatories for the Letter-Complaint include the Regional Director for SDTs issued by the Revenue Regions and the Deputy Commissioner for Legal and Inspection Group for SDTs issued by the Enforcement and Advocacy Service and the Large Taxpayers Service, consistent with Revenue Delegated Authority Order No. 2-2007.
After return of the duly signed Letter-Complaint and Complaint-Affidavit with attachments to the originating office, the Letter-Complaint must be immediately filed with the Office of the Prosecutor that has jurisdiction over the case.

Non-withdrawal after filing complaint-affidavit

After the Complaint-Affidavit has been filed for violation of Section 266 (Failure to Obey Summonses) of the NIRC, as amended, no prosecuting officer of the Bureau causes the withdrawal or dismissal of the case notwithstanding the subsequent submission of documents indicated in the SDT.
The person summoned is accorded full notice and opportunity to comply with the SDT as detailed in the procedures under the Order.

Repeal and separability

All issuances and/or portions inconsistent with BIR Revenue Memorandum Order No. 10-2013 are revoked, modified, or amended accordingly.