An official of the Bureau of Internal Revenue yesterday told senators of a plan to confiscate the funds supposedly held in an escrow account at the Philippine National Bank (but invested abroad) to partially settle the Marcoses' P23.5-billion tax debt.

But ''that is not feasible'' or legal, countered Solicitor General Ricardo Galvez, as he pointed out that the money was still under the ''exclusive control'' of the Sandiganbayan, which still has to determine whether the funds were ill-gotten.

Lawyer Osias Baldevino, chief of the BIR's litigation and prosecution division, said the bureau had already prepared a writ of garnishment scheduled to be served to the PNB yesterday afternoon.

Garnishment would give the tax bureau effective control over the $590 million (about P23 billion) and would also prevent the heirs of the late strongman Ferdinand Marcos from liquidating any other personal properties and assets.

Most senators present at Baldevino's testimony before the Senate justice committee applauded the tax agency's initiative, but their enthusiasm was apparently premature.

Galvez explained that the escrow funds could not be touched because of two basic legal restrictions.

First, the $590 million is controlled entirely by the Sandiganbayan.

Second, the money is subject to pending litigation on Civil Case 0141, the government's seven-year forfeiture case against the Marcos family.

Under the terms of escrow set by Swiss courts, one of the conditions for the release of the funds is an ''enforceable judgment'' in the forfeiture case. Then and only then, Galvez said, could the government or the Marcoses could touch the money.

The solicitor general explained that even if the government were to win the forfeiture case, the BIR would still not get the money.

Assuming that the Sandiganbayan rules that the dollars are part of the Marcoses' alleged ill-gotten wealth, the $590 million will be forfeited in favor of the government.

In that case, Galvez said, the BIR would be garnishing on a legal government fund--not on Marcos assets.

Legal experts, however, have claimed that a tripartite agreement between the government, the Marcoses and nearly 10,000 human rights victims could take the place of that particular condition.

Senate Majority Floor Leader Franklin Drilon said that the move might complicate the release of the $150 million earmarked for the settlement deal--which still lacks government approval--between the Marcoses and the 9,539 victims. The money is supposed to be sourced from the escrow funds.

Baldevino, in an ambush interview after the hearing, admitted that the victims would have to forfeit their $150 million if the BIR were to seize the $590 million.

He said the BIR was ''not part of that'' deal. He suggested that the victims should start looking elsewhere to finance their claims.

''The proper body to pay the (P23.5 billion) tax should be the (Marcos) estate, so it is only proper that their claims be referred to the estate,'' Baldevino said.

In turn, Galvez prescribed to the tax official a dose of his own medicine: ''The BIR should just look for other Marcos properties to source the P23.5-billion tax liabilities.''

Funds not her

Baldevino admitted that since the PNB had yet to release the $150 million, the victims' ''claims may overcome the garnishment.'' In the meantime, he warned, ''nobody can touch (the money) without the approval of the BIR.''

Galvez pointed out the irony of the legal debate: The question of whether the funds are even in the country.

The Swiss Supreme Court ruled last year that the funds could only be invested in Class AAA portfolios, which exist only outside the country. The funds have already been invested abroad.

Galvez said that the BIR's presumption was that the money is here. ''Now, how can it garnish something which is not here?'' he asked.

BIR law or Sandigan law

Malacañang, for its part, supported the BIR's position.

''If the Marcoses don't pay the taxes, their assets can be immediately levied upon,'' said Presidential spokesperson Fernando ''Jerry'' Barican yesterday.

''The law would have to be enforced whether you are Juan dela Cruz or anybody else. The law would have to take its course. That's not a matter for the President anymore,'' Barican said.

Drilon reiterated an earlier statement that tax claims take precedence over other kinds of claims on the Marcos estate--implying that the BIR has priority over the abused victims in laying stake to the Swiss bank deposits.

''The $590 million is there for the taking,'' Drilon said. ''The law dictates that all visible and identifiable assets of the Marcoses are subject to confiscation by government in order to force the Marcoses to settle in full their tax obligations.''

Risking contemp

Other lawmakers advised caution on the tax agency's move to get its hands on that coveted portion of the Marcos loot.

Senate President Pro Tempore Blas Ople admonished the BIR, saying it would risk ''the contempt of the Sandiganbayan'' by issuing the writ.

He warned that Sandiganbayan Presiding Judge Francis Garchitorena would ''not let this pass,'' especially if the writ were issued without the approval of Justice Secretary Serafin Cuevas.

Throughout this all, reporters could not confirm yesterday afternoon whether the BIR had indeed served the writ of garnishment, since Commissioner Beethoven Rualo had left for an official trip to Cebu, accompanied by his deputy, Jose Panganiban.

Undertaking questione

Senators also asked President Estrada to junk the undertaking agreement between PNB and the Presidential Commission on Good Government allowing the release of the $150 million to the human rights settlement fund.

The Senate justice committee is investigating the circumstances behind the undertaking.

Senators have learned from PCGG Commissioner Jorge Sarmiento and PNB legal counsel Felix Carao that they had not been ordered to draft the undertaking, but had taken it upon themselves to do so after President Estrada vowed to help the rights plaintiffs.

The justice committee chair, Sen. Renato Cayetano, said the PCGG had no legal basis at all in entering into the agreement with the PNB.

Drilon said he was ''asking President Estrada not to approve the compromise and instead make amendments saying the money will be made available to satisfy the claims,'' of the victims.

Imee and Iren

Where were the Marcoses while all of this was happening? They sent two ''emissaries'' to Malacañang yesterday in an apparent bid to negotiate the tax debt.

The two, Ilocos Norte Rep. Imee Marcos and her sister, Irene Marcos-Araneta, met with Mr. Estrada for about an hour. They left without talking to reporters.

The Marcoses have been given 30 days from March 15 to pay the multibillion obligation or else later face an additional one-time surcharge of 25 percent, equivalent to nearly P5.9 billion.

Drilon said the government could set aside $150 million as compensation for the abused victims and use the remaining $440 million to partially settle the Marcoses' tax debts.

That would leave the Marcoses without a single centavo of the loot, and make moot proposals for a 75-25 sharing agreement between the government and the former first family.

By Donna S. Cueto, Cathy C. Yamsuan and Gerald G. Lacuarta, with a report from Martin Marfil