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Tips for the bar candidates; best regards to the examiners

(Article published in the Aug 26, 2002 issue of TODAY, Business Section)

Today is the beginning of this year’s first of four pre-weeks. Those four extraordinary six days, preceding the September 1, 8, 15 and 22, when family and friends, fraternity brothers and sorority sisters, school mates and group mates, become ever-solicitous, extra-patient and considerate, and become selfless servants, like worker ants tirelessly laboring in their little hills with neither moan nor whimper, to the queen of their colony, the bar candidate. To the countless advice and admonitions that they will get from now until the September 22, when they take their exams in Remedial Law and Legal Ethics, I am adding some of my own, culled from my experience as last year’s examiner for Taxation as well as from the observations and comments of my fellow members of the 2001 Bar Examination Committee, knowing full well that they will most likely fall on half-deaf ears attached to numb heads atop weary bodies worn by the months of pre-bar that had gone before. I share these with the candidates for their benefit, and, also, to make the task of their examiners a bit easier.

Remember that the questions in the bar exams, despite some occasional aberrations, are crafted to test what you know, not what you do not know. Since you have supposedly gone through the subject matter, at least six times, --first when you studied for your daily class; second, when you prepared for your final exams, third, when you saw it again during Fourth Year review; fourth during your senior’s finals, fifth, during the pre-bar, and sixth, during the pre-week—your primary objective in answering the questions should be to exhibit reasonable familiarity with the subject and manifest respectable ability to focus on the issues, particularly when problems are posed. When I corrected last year’s examination booklets, I gave credit to indications of good grasp of the basics even if, on the specific question of law involved, the examinee gave a response at variance with a court ruling or statutory provision.

Merely repeating the words used in the question is a tell-tale sign that the examinee does not really know what he is talking about. "Exclusions refer to those items which are excluded, while deductions refer to those items which are deducted" and "direct taxes is (sic) that which is directly imposed on the taxpayer while an indirect tax is one that is not directly imposed on the taxpayer" as well as "direct taxes are those taxes that are collected at once and at source; while indirect taxes, as the name connotes, those taxes collected otherwise" do not say much about the examinee’s stock knowledge. Likewise, "income subject to final tax refers to those income, which by express provision of law, is subject to final income tax".

Express yourself in simple and conventional English. Like it or not, the bar examination is in English. Do not use any other language. My attention was caught by a booklet that was written almost entirely in Latin. I had studied Latin at the Ateneo High School and the College of Arts and Sciences so I immediately recognized it to be a senseless repetition of phrases connected with neither rhyme nor reason. That was among the very few examinees I gave a grade to that was less than 50. When I got to meet the other bar examiners, I asked them if they too noticed a booklet like that. They all did, and they too disqualified.

English is a dynamic and changing language, but it is not for you to invent English words. Doing so merely distracts the examiner’s attention from what you are trying to say. I lost my concentration, for example, when examinees used "shiftment", to refer to the passing of the economic burden of an indirect tax to others; "set-offing" to mean compensation or set-off; "abolishment" in place of abolition; "splitted" as the past tense of "split"; and "reducement" for "reduction".

Errors in spelling could have unwanted consequences. Sometimes, misspelling simply evokes a smile as when an examinee referred to employees below supervisory level as "rank-in-file" and another described a man on his death bed as one "already in the blink of death". But, carelessness could be disastrous. An examinee who meant to say that certain deductions from gross income are now allowed, wrote instead, "…not allowed".

It is not necessary to use flowery language. That may have been admirable during the time of your great grand father when time was aplenty; but it is hardly appreciated by an examiner who has to go through thirty to forty booklets a day in the four to five hours of early morning or late evening. "The established rule is …" is more acceptable than "in a plethora of cases…", or "it is a well-entrenched doctrine highly intoned by the Supreme Court", or "it is a well-chiseled rule as decided by the Supreme Court". If it is essential for your ego that you embellish your answer, it suffices to say, as some examinees did, "it is doctrinal that…" or "it is a time honored precept that…"

Be careful about basing your answer on the key words in the question. True, some questions suggest their answers. Thus, on the question of what you understand by the phrase "flexible tariff clause", your answer should center on the idea suggested by "flexible". But, in certain instances, that approach will not work. An examinee wrote, "tax amnesty is a tax which is granted to a rebulutionary (sic) taxpayer". Another explained "personal exemption", as "when the taxpayer buys food for his personal consumption" while a third said it is "personally enjoyed by individuals, such as vacation, vacation leave, trips, sacks of rice as gifts…"

Do not let your feelings or attitudes color your responses. In answer to a problem where a doctor "A" claimed that he should not be made to pay the final capital gains tax on the sale of his residence below his acquisition cost, I could hear the examinee almost exclaim, "No. Dr. A’s contention is not correct, who will believe him anyway, is he out of his mind? Land is the most delicate piece here on earth, the gone down (sic) or the slow down of economy will not affect its value." And to the question of whether a 90-year old man who gave away some property at his death bed made gifts in contemplation of death, another answered in indignation, "The decedent shouldn’t have reached 90 years old and just give gifts on the day of his death". Finally, on the issue of whether a bribe is taxable income to the government official who received it, an examinee gave a very revealing answer, "the bribe is not taxable income…it is an illegal income where (sic) the government official will not bother to report it for taxation purposes".

Review your answers to make sure what you wrote makes sense. Put yourself in the shoes of the examiner reading these answers: (a) the donor’s tax rate decreases as the year of the transaction increases; or (b) "the law provides that death of any individual is exempt from any taxable or deductibility of gross estate"; or (c) "the donor must be dead and not alive in order to fall under the exemptions enumerated under the Code". When I asked whether a small hut provided by the fishpond owner to his watcher was taxable income to the watcher, an answer was "No. The small hut is likewise built for the use of the occupant. Fishpond/small hut (sic). It is not fishpond without a small hut".

Questions should be answered in the order that they are given. But if you skipped one and discovered it after you had finished answering another, simply indicate on the page where your answer should have been the page where your answer is. An examinee, perhaps, in panic, wrote, after answering question VI, "my answer to question or problem no. V is on the next page of my last answer on question no. XX". Another, realizing he answered question 13 right after question 11 said "taxation question #12 is answered on the page to where taxation question #13 is answered". Your examiners, I am certain, are not heartless. They will take pains to make sure that they read all your answers, even if, contrary to instructions, the questions are answered in a slightly different order. But, let them know where to find a wayward answer.

Good luck to all you bar candidates. And my best wishes for your examiners. I had been where you both are now and I know exactly how you feel.