2010 Taxation Review by Domondon 1

PRIMUS PRE-BAR REVIEW DIVISION

 “BAR STAR NOTES”

TAXATION

VER. 2010.08.12

copyrighted 2010

Prepared by Prof. Abelardo T. Domondon

(AB (Econ), BSC (Acctg), LLB, MA (Econ), LLM, DCL (Cand.). Lawyer-CPA-Customs Broker, Management Consultant, Professor of Law and Pre-Bar Reviewer)

            How to use the “BAR STAR NOTES.” The “BAR STAR NOTES” in the form of questions and answers as well as textual discussion were specially prepared by Prof. Domondon for the exclusive use of Bar Reviewees who attended the 2010 Wrap-Up Lectures on TAXATION conducted by Primus Information, Center, Inc., and the Bar Reviewees of various law schools and Review Centers where he was invited to lecture on Taxation.  Included in the presentation are doctrines contained in Supreme Court decisions up to April 2010.

            The purpose of the ‘BAR STAR NOTES” is to provide the Bar Reviewee with a handy review material which serves as “memory-joggers” for the September 12, 2010 Bar Examinations in Taxation. The author tries to second guess what would be included in the Bar Exams using statistical analysis.  The actual Bar questions may not be formulated in the same manner as the “BAR STAR NOTES”.  However, the doctrines tested in the Bar would in all probability be included in these Notes.

            If pressed for time, the author suggests that the reader should focus his attention on the following:

            â             Nice to know

            ââ          Should know

            âââ        Must know and master

            It is further suggested that the reader should merely browse those without stars.

            The BAR STAR NOTES in TAXATION is the 4^th in the series of Bar Star Notes the author has prepared for all the eight Bar subjects.  The other Bar Star Notes may be availed of by enrolling in the 2010 Wrap-Up lectures conducted by PRIMUS INFORMATION CENTER, INC. Please feel free to call Baby, Tel. No. 816-07-68 or 817-84-49; Leon, Mobile No. 0917-793-6169; Atty. Celia, Mobile No. 0917-790-8406, or Venny, Mobile No. 0917-337-6479.

WARNING:

            These materials are copyrighted and/or based on the writer’s books on Taxation and future revisions.  It is prohibited to  reproduce any part of these Notes in any form or any means, electronic or mechanical, including photocopying without the written permission of the author.  These materials are authorized for the use only of PRIMUS Reviewees  and others who attended the author’s lectures on Taxation. Unauthorized users shall not be prosecuted but SHALL BE SUBJECT TO THE LAW OF KARMA SUCH THAT THEY WILL NEVER PASS THE BAR OR WOULD BE UNHAPPY IN LIFE  for stealing the intellectual property of the author.

THE BEST OF LUCK AND ADVANCE CONGRATULATIONS

TAXATION

GENERAL PRINCIPLES OF TAXATION

TAXATION, IN GENERAL

â 1.          State briefly and concisely the nature of taxation.  Alternatively, define taxation.

SUGGESTED ANSWER:  The inherent power of the sovereign exercised through the legislature to impose burdens upon subjects  and objects within its jurisdiction for the purpose of raising revenues to carry out the legitimate objects of government.

âââ 2.     What is the nature of the State’s power to tax ?  Explain briefly.

            SUGGESTED ANSWER: The nature of the state’s power to tax is two-fold. It is both an inherent power and a legislative power.                          It is inherent in nature being an attribute of sovereignty.  This is so, because without the taxes, the state’s existence would be imperiled. There is thus, no need for a constitutional grant for the state to exercise this power.                                                                                                                              It is a legislative power because it involves the promulgation of rules.  Taxation is a set of rules, how much is the tax to be paid, who pays the tax, to whom it should be paid, and when the tax  should be paid.

â 3.          What is the underlying theory of taxation ?  Explain briefly.

            SUGGESTED ANSWER:  Taxes are the lifeblood of the nation.         Without revenue raised from taxation, the government will not survive, resulting in detriment to society.   Without taxes, the government would be paralyzed for lack of motive power to activate and operate it.   (Commissioner of Internal Revenue v. Algue, Inc. et al., 158 SCRA 8, 16-17)

            â 4.      Marshall said that, “the power to tax involves the power to destroy.”  On the other hand, Holmes  stated that “the  power to  tax is not the power  to   destroy  while  the  court  sits.”                                                                                               Reconcile the statements.                                                                               In the alternative, what are the implications that flow from the above statements ?                                                            SUGGESTED ANSWERS:  Marshall’s view refers to a valid tax while the Holmes’ view refers to an invalid tax.                                                 a.         The imposition of a   valid tax could not be judicially restrained merely because it would prejudice taxpayer’s property.                             b.         An illegal  tax  could  be judicially  declared  invalid and  should  not  work  to  prejudice a taxpayer’s property.

            â 5.      Discuss briefly the basis/bases, or rationale of taxation.                                                                                                       SUGGESTED ANSWER:  a.           Reciprocal duties of protection and support between the  state  and  its  citizens  and  residents.   Also  called    “symbiotic relation”   between the state and  its  citizens.

            b.         Jurisdiction   by   the   state   over   persons and property within its territory.

            â 6.      Discuss briefly but comprehensively the objectives or purposes of taxation.

            SUGGESTED ANSWER:  The purposes or objectives of taxation are the following:                                                                                                                a.         The primary purpose:                                                                                         1)         Revenue purpose.                                                                      b.         The secondary purposes                                                                                     1)         Sumptuary or regulatory purpose.                                                           2)         Compensatory purpose.                                                                          3)         To implement the power of eminent domain.

           

            â 7.      Distinguish a tax from a license fee.               SUGGESTED ANSWER:  The following are the distinctions:             a.         Purpose:  Tax imposed for revenue while license fee for regulation.   Tax for general public purposes while license fee for regulatory purposes only.                                                                                                  b.         Basis:   Tax imposed under power of taxation while license fee under police power.                                                                                                       c.          Amount:   In taxation, no limit as to amount while license fee limited to cost of the license and the expenses of police surveillance and regulation.                                                                                                                             d.         Time of payment:   Taxes normally paid after commencement of business while license fee before.                                      e.         Effect of payment:   Failure to pay a tax does not make the business illegal while failure to pay license fee makes business illegal.                      f.          Surrender:   Taxes, being the lifeblood of the state, cannot be surrendered except for lawful consideration while a license fee may be surrendered with or without consideration.  (Cooley on Taxation, pp. 1137-1138; Pacific Commercial Company v. Romualdez, et al., 49 Phil. 924)

            â 8.      How may the power to tax be utilized to carry out the social justice program of our government ?                                     SUGGESTED ANSWER:  The compensatory purpose of taxation is to implement the social justice provisions of the constitution through the progressive system of taxation, which would result to equal distribution of wealth, etc.

            Progressive income taxes alleviate the margin between rich and poor.  (Southern Cross Cement Corporation v. Cement Manufacturers Association of the Philippines, et al., G. R. No. 158540, August 3, 2005)

            In recent years, the increasing social challenges of the times expanded the scope of the state activity, and taxation has become a tool to realize social justice and the equitable distribution of wealth, economic progress and the protection of local industries as well as public welfare and similar objectives.     (Batangas Power Corporation v. Batangas City, et al., G. R. No. 152675, and companion case, April 28, 2004 citing National Power Corporation v. City of Cabanatuan, G. R. No. 149110, April 9, 2003)

          9.            Explain the sumptuary purpose of taxation. 

          SUGGESTED ANSWER:  The sumptuary purpose of taxation is  to promote the general welfare and to protect the health, safety or morals of the inhabitants. It is in the joint exercise of the power of taxation and police power where regulatory taxes are collected.

          Taxation may be made the implement of the state’s police power.  The motivation behind many taxation measures is the implementation of police power goals.  [Southern Cross Cement Corporation v. Cement Manufacturers Association of the Philippines, et al., G. R. No. 158540, August 3, 2005) The reader should note that the August 3, 2005 Southern Cross case is the decision on the motion for reconsideration of the July 8, 2004 Southern Cross decision.

          The so-called “sin taxes” on alcohol and tobacco manufacturers help dissuade the consumers from excessive intake of these potentially harmful products.  (Southern Cross Cement Corporation v. Cement Manufacturers Association of the Philippines, et al., G. R. No. 158540, August 3, 2005)

          10.          Taxation distinguished from police power.  Taxation is distinguishable from police power as to the means employed to implement these public goals.  Those doctrines that are unique to taxation arose from peculiar considerations such as those especially punitive effects (Southern Cross Cement Corporation v. Cement Manufacturers Association of the Philippines, et al., G. R. No. 158540, August 3, 2005) as the power to tax involves the power to destroy and the belief that taxes are lifeblood of the state.  (Ibid.) taxes being the lifeblood of the government, their prompt and certain availability is of the essence.”

          These considerations necessitated the evolution of taxation as a distinct legal concept from police power.  (Ibid.)

         

          11.          How the power of taxation may be used to implement power  of eminent domain.  Tax measures are but ”enforced contributions exacted on pain of penal sanctions” and “clearly imposed for public purpose.”  In most recent years, the power to tax has indeed become a most effective tool to realize social justice, public welfare, and the equitable distribution of wealth.  (Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G.R. No. 159647, April 16, 2005)

         Establishments granting the 20% senior citizens discount  may claim the discounts granted to senior citizens as tax deduction based on the net cost of the goods sold or services rendered: Provided, That the cost of the discount shall be allowed as deduction from gross income for the same taxable year that the discount is granted. Provided, further, That the total amount of the claimed tax deduction net of value added tax if applicable, shall be included in their gross sales receipts for tax purposes and shall be subject to proper documentation and to the provisions of the National Internal Revenue Code, as amended. [M.E. Holding Corporation  v. Court of Appeals, et al., G.R. No. 160193, March 3, 2008 citing Expanded Senior Citizens Act of 2003, Sec. 4 (a)]

            â 12.  What are the three basic principles of a sound tax system?   Explain each briefly.                                                      SUGGESTED ANSWER:  The canons of a sound tax system, also known as the characteristics or, principles of a sound tax system, are used as a criteria in order to determine whether a tax system is able to meet the purposes or objectives of taxation.  They are:

            a.         Fiscal adequacy. 

            b.         Administrative feasibility. 

            c.          Theoretical justice.

â 13. What are the elements or characteristics of a tax ?             SUGGESTED ANSWER:                                                                           a.         Enforced contribution.

      b.         Generally payable in money.

      c.          Proportionate in character.

      d.         Levied on persons, property or exercise of a right or privilege.

      e.         Levied by the state having jurisdiction.

      f.          Levied by the legislature.

      g.         Levied for a public purpose.

      h.         Paid at regular periods or intervals.

14. State the requisites of a valid tax.                SUGGESTED ANSWER:                                                                           a.         A valid tax should be within the jurisdiction of the taxing authority.

            b.         That the assessment and collection of certain kinds (The same as the inherent limitations of the power of taxation) should be for a public purpose.

          c.       The rule of taxation should be uniform.

          d.           That   either   the   person or property of taxes guarantees against injustice to individuals, especially by way or notice and opportunity for hearing be provided.

   e.            The tax must not impinge on the inherent and Constitutional limitations on the power of taxation.                                                                                                                                                                                                                  â15. What are the classes or kinds of taxes according to the subject matter or object ?                                                                  SUGGESTED ANSWER:                                                                           a.         Personal, poll or capitalization – imposed on all residents, whether citizen or not.  Example – Community Tax.

      b.         Property -   Imposed on property.    Example – Real property tax.                                                                                                                                     c.          Excise – imposed upon the performance   of   an act, the enjoyment of a privilege or the engaging in an occupation.  Example – income tax, estate tax.  

            ââ16. What are the kinds of taxes classified as to who bears the burden ?  Explain each briefly.                             SUGGESTED ANSWER:  Based on the possibility of shifting the incidence of taxation, or as to who shall bear the burden of taxation, taxes may be classified into:

      a.         Direct taxes.  Those that are extracted from the very person who, it is intended or desired, should pay them (Commissioner of Internal Revenue v. Philippine Long Distance Telephone Company, G. R. No. 140230, December 15, 2005); they are impositions for which a taxpayer is directly liable on the transaction or business he is engaged in, (Commissioner of Internal Revenue v. Philippine Long Distance Telephone Company, supra)     which liability cannot be shifted or transferred to another. Example – income tax, estate tax, donor’s tax, etc.

          b.            Indirect taxes are those that are demanded in the first instance, from, or are paid by, one person in the expectation and intention that he can shift the burden to (Commissioner of Internal Revenue v. Philippine Long Distance Telephone Company, supra) to someone else not as a tax but as part of the purchase price.  (Commissioner, of Internal Revenue v. American Express International, Inc. (Philippine Branch), G. R. No. 152609, June 29, 2005 citing various cases and authorities) Example – value added tax (VAT), documentary stamp tax, excise tax, percentage tax, etc.

ââ17.     Silkair (Singapore) PTE, Ltd., an international carrier,  purchased aviation gas from Petron Corporation, which it uses for its operations.  It now claims for refund or tax credit for the excise taxes it paid claiming that it is exempt from the payment of excise taxes under the provisions of Sec. 135 of the NIRC of 1997 which provides that petroleum products are exempt from excise taxes when sold to   “Exempt entities or agencies covered by tax treaties, conventions, and other international agreements for their use and consumption:  Provided, however, That the country of said foreign international carrier or exempt entities or agencies exempts from similar taxes petroleum products sold to Philippine carriers, entities or agencies”

            Silkair further anchors its claim on  Article 4(2) of the Air Transport Agreement between the Government of the Republic of the Philippines and the Government of the Republic of Singapore (Air Transport Agreement between RP and Singapore) which reads: “Fuel, lubricants, spare parts, regular equipment and aircraft stores introduced into, or taken on board aircraft in the territory of one Contracting party by, or on behalf of, a designated airline of the other Contracting Party and intended solely for use in the operation of the agreed services shall, with the exception of charges corresponding to the service performed, be exempt from the same customs duties, inspection fees and other duties or taxes imposed in the territories of the first Contracting Party , even when these supplies are to be used on the parts of the journey performed over the territory of the Contracting Party in which they are introduced into or taken on board.  The materials referred to above may be required to be kept under customs supervision and control.”

            Silkair likewise argues that it is exempt from indirect taxes because the Air Transport Agreement between RP and Singapore grants exemption “from the same customs duties, inspection fees and other duties or taxes imposed in the territory of the first Contracting Party. It invokes Maceda v. Macaraig, Jr.,  G.R. No. 88291, May 31, 1991, 197 SCRA 771.which upheld the claim for tax credit or refund by the National Power Corporation (NPC) on the ground that the NPC is exempt even from the payment of indirect taxes.

            Is Silkair entitled to the tax refund or credit it seeks ?  Reason out your answer. 

            SUGGESTED ANSWER:  Silkair is not entitled to tax refund or credit for the following reasons:         

            a.         The excise tax on aviation fuel is an indirect tax. The proper party to question, or seek a refund of, an indirect tax is the statutory taxpayer, the person on whom the tax is imposed by law and who paid the same even if he shifts the burden thereof to another. (Philippine Geothermal, Inc. v. Commissioner of Internal Revenue, G.R. No. 154028, July 29, 2005, 465 SCRA 308, 317-318)     The NIRC provides that the excise tax should be paid by the manufacturer or producer before removal of domestic products from  place of production. Thus, Petron Corporation, not Silkair, is the statutory taxpayer which is entitled to claim a refund based on Section 135 of the NIRC of 1997 and Article 4(2) of the Air Transport Agreement between RP and Singapore. 

Even if Petron Corporation passed on to Silkair the burden of the tax, the additional amount billed to Silkair for jet fuel is not a tax but part of the price which Silkair had to pay as a purchaser.  [Philippine Acetylene Co., Inc. v. Commissioner of Internal Revenue, 127 Phil. 461, 470 (1967)]

b.         Silkair could not seek refuge under Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771.which upheld the claim for tax credit or refund by the National Power Corporation (NPC) on the ground that the NPC is exempt even from the payment of indirect taxes.

In Commissioner of Internal Revenue v. Philippine Long Distance Telephone Company, G.R. No. 140230, December 15, 2005, 478 SCRA 61  the Supreme Court clarified the ruling in Maceda v. Macaraig, Jr., viz: It may be so that in Maceda vs. Macaraig, Jr., the Court held that an exemption from “all taxes” granted to the National Power Corporation (NPC) under its charter includes both direct and indirect taxes. 

An exemption from “all taxes” excludes indirect taxes, unless the exempting statute, like NPC’s charter, is so couched as to include indirect tax from the exemption. The amendment under Republic Act No. 6395 enumerated the details covered by NPC’s exemption.  Subsequently, P.D. 380, made even more specific the details of the exemption of NPC to cover, among others, both direct and indirect taxes on all petroleum products used in its operation.  Presidential Decree No. 938 [NPC’s amended charter] amended the tax exemption by simplifying the same law in general terms.  It succinctly exempts NPC from “all forms of taxes, duties, fees…” The use of the phrase “all forms” of taxes demonstrates the intention of the law to give NPC all the tax exemptions it has been enjoying before.

The exemption granted under Section 135 (b) of the NIRC of 1997 and Article 4(2) of the Air Transport Agreement between RP and Singapore cannot, without a clear showing of legislative intent, be construed as including indirect taxes.  Statutes granting tax exemptions must be construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority, and if an exemption is found to exist, it must not be enlarged by construction.  (Silkair (Singapore) PTE, Ltd., v. Commissioner of Internal Revenue, G.R. No. 173594, February 6, 2008)                                                                                    

                                                                                                                                    â 18.   What are the different kinds of taxes classified as to purpose ?                                                                              SUGGESTED ANSWER:                                                                                  a.         General, fiscal or revenue – imposed   for   the purpose of raising public funds for the service of the government.                                       b.         Special or regulatory – imposed primarily for the regulation of useful or non-useful occupation or enterprises and secondarily only for the raising of public funds.

LIMITATIONS OR RESTRICTIONS ON THE POWER

         

          1.            Purpose for the limitations on the power of taxation.

The inherent and constitutional limitations to the power of taxation are safeguards which would prevent abuse in the exercise of this otherwise unlimited and plenary power.

          The limitations also serve as a standard to measure the validity of a tax law or the act of a taxing authority.  A violation of the limitations serves to invalidate a tax law or act in the exercise of the power to tax.

INHERENT LIMITATIONS

          ââ 1.   What are the inherent limitations on the power of taxation ?

          SUGGESTED ANSWERS:   

          a.            Public purpose.  The revenues collected from taxation should be devoted to a public purpose.

          b.            No improper delegation of legislative authority to tax.  Only the legislature can exercise the power of taxes unless the same is delegated to some other governmental body by the constitution or through a law which does not violate any provision of the constitution.

          c.            Territoriality.  The taxing power should be exercised only within territorial boundaries of the taxing authority.

          d.            Recognition of government exemptions; and

          e.            Observance of the principle of comity.  Comity is the respect accorded by nations to each other because they are equals.  On the other hand taxation is an act of sovereign. Thus, the power should be imposed upon equals out of respect.

          Some authorities include no double taxation.

          ââ 2.      What are the principles to consider in the determination of whether tax revenues are devoted for a public purpose ?

          SUGGESTED ANSWER:

          a.            The tax revenues are for a public purpose if utilized for the benefit of the community in general.  An alternative meaning is  that tax proceeds should be utilized only to attain the objectives of government.

          b.            Inequalities resulting from the singling out of one particular class for taxation or exemption infringe no constitutional limitation. 

           REASON:  It is inherent in the power to tax that the legislature is free to select the subjects of taxation.

           BASIS:   The lifeblood theory.

           c.                       An individual taxpayer need not derive direct benefits from the tax. 

           REASON:  The paramount consideration is the welfare of the greater portion of the population.

           d.                      A tax may be imposed, not so much for revenue purposes, but under police power for the general welfare of the community. This would still be for a public purpose.

           e.                      Public purpose continually expanding.  Areas formerly left to private initiative now lose their boundaries and may be undertaken by the government if it is to meet the increasing social challenges of the times.

            f.                      Tax revenue must not be used for purely private purposes or for the exclusive benefit of private persons.

            g.         Private persons may be benefited but such benefit should be merely incidental as its main object is the benefit of the community in general.

             h.        Determined at the time of enactment of tax law and not at the  time of implementation.

             i.         There is a presumption of public purpose even if the tax law does not specifically provide for its purpose.  (Santos & Co., v. Municipality of Meycauayan, et al., 94 Phil. 1047)

        j.   Public use is no longer confined to the traditional notion of use by the public but held synonymous with public interest, public benefit, public welfare, and public convenience. (Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G.R. No. 159647, April 16, 2005)

      ââ 3.  A law was enacted imposing a tax on manufacturers of coconut oil, the proceeds of which are to be used exclusively for the protection and promotion of the coconut industry, namely, to improve the working conditions in coconut  mills and to conduct research on the use of coconut oil for motor fuel.  Some of the manufacturers of coconut oil challenge the validity of the law, contending that the tax is to be used for a private purpose, and therefore, the law violates the rule that public revenues shall not be appropriated for anything but a public purpose.   Decide with reason.   

            SUGGESTED ANSWER: The levy is for a public purpose.  It cannot be denied that the coconut industry is one of the major industries supporting the national economy.   It is, therefore, the state’s concern to make it a strong and secure source not only of the livelihood of the significant segment of the population, but also of  export  earnings,  the  sustained growth of which is one of the imperatives of economic  growth.  (Philippine Coconut Producers Federation, Inc.  (Cocofed v. Presidential Commission on Good Government, 178 SCRA 236, 252)

           

         ââ 4.      Requisites for taxpayers, concerned citizens, voters or legislators to have locus standi to sue.

         a.            In general, the case should involve constitutional issues.  (David, et al., v. President Gloria Macapagal-Arroyo, etc., et al., G. R. No. 171396, May 3, 2006)

            b.         For taxpayers, there must be a showing:

                        1)         That tax money is “being extracted and spent in   violation of specific constitutional protections against abuses of         legislative power.”   (Flast v. Cohen, 392 U.S.       83)

                        2)         That public money is being deflected to any          improper           purpose (Pascual v. Secretary of Public Works, 110           Phil. 33)  or a     claim of illegal disbursement of public funds          or that the tax    measure is unconstitutional.  (David, supra)

                        3)         A taxpayer is allowed to sue where there is a       claim     that public funds are illegally disbursed, or that public         money is being deflected to any improper purpose, or that           there is a wastage of      public funds through the enforcement of         an invalid or      unconstitutional law.  (Abaya v. Ebdane, G. R.      No. 167919, February     14, 2007; Garcia v. Enriquez, Jr. G.R.         No. 112655 December 9,            1993, Minute Resolution)

                        A taxpayer’s suit is properly brought only when there        is          an exercise of the spending or taxing power of             Congress.          (Automotive Industry Workers Alliance     (AIWA),etc., et al., v. Romulo,     etc. ,et al., G. R. No.             157509,             January 18, 2005 citing   Gonzales v. Narvasa, G.             R. No.   140835, August 14, 2000, 337 SCRA             733, 741)

            c.          For voters, there must be a showing of obvious interest in the validity of the election law in question.

            d.         For concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early.

            e.         For legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.  (David, et al., v. President Gloria Macapagal-Arroyo, etc., et al., G. R. No. 171396, May 3, 2006)

           

            5.         Only those directly affected have locus standi to impugn the alleged encroachment by the executive department into the legislative domain of Congress.

            a.         Only those who shall be directly affected by such executive encroachment, such as for example employees who would find themselves subject to disciplinary powers that may be imposed under the questioned Executive Order as they have a direct and specific interest in raising the substantive issue therein (Automotive Industry Workers Alliance (AIWA),etc., et al., v. Romulo, etc. ,et al., G. R. No. 157509, January 18, 2005) or employees who are going to be demoted, transferred or otherwise affected by any personnel action subject o the rule on exhaustion of administrative remedies.

            b.   Moreover, and if at all, only Congress, can claim any injury from the alleged executive encroachment of the legislative function to amend, modify and/or repeal laws. (Automotive Industry Workers Alliance (AIWA),etc., et al., supra, citing Gonzales v. Narvasa, G. R. No. 140835, August 14,2000, 337 SCRA 733, 741)

         

         6.            Locus standi being merely a matter of procedure, have been waived in certain instances where a party who is not personally injured may be allowed to bring suit.  The following are examples of instances where suits have been brought by parties who have not have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest:

          a.            Taxpayer’s suits to question contracts entered into by the national government or government-owned or controlled corporations allegedly in contravention of the law.

b.            A taxpayer is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.  (Abaya v. Ebdane, G. R. No. 167919, February 14, 2007)

          â 7.  The VAT law provides that, the President, upon the recommendation of the Secretary of Finance, shall, effective January 1, 2006, raise the rate of value-added tax to twelve percent (12%) after any of the following conditions have been satisfied. “(i)  value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous year exceeds two and four-fifth percent (2 4/5%) or (ii)  national government deficit as a percentage of GDP of the previous year exceeds one and one-half percent (1 ½%).”

            Was there an invalid delegation of legislative power ?

            SUGGESTED ANSWER:  No.  There is no undue delegation of legislative power but only of the discretion as to the execution of the law.  This is constitutionally permissible.

          Congress does not abdicate its functions or unduly delegate power when it describes what job must be done, who must do it, and what is the scope of his authority.  In the above case the Secretary of Finance becomes merely the agent of the legislative department, to determine and declare the even upon which its expressed will takes place.  The President cannot set aside the findings of the Secretary of Finance, who is not under the conditions acting as the execute alter ego or subordinate.  .  [Abakada Guro Party List (etc.) v. Ermita, etc., et al., G. R. No. 168056, September 1, 2005 and companion cases citing various cases]]

            8.  Instances of proper delegation: When taxing power could be delegated:  Exceptions to the rule on non-delegation:

            a.   Delegation of tariff powers by Congress to the President under the flexible tariff clause, Section 28 (2), Article VI of the Constitution.

            b.    Delegation of emergency powers to the President under Section 23 (2) of Article VI of the Constitution.

            c.   The delegation to the President of the Philippines to enter into executive agreements, and to ratify treaties which may contain tax exemption provisions subject to the concurrence by the Senate in the ratification made by the President.

            d.     Delegation to the people at large.

            e.   Delegation to administrative bodies  [Abakada Guro Party List (Formerly AASJS), etc., v, Ermita, et al., G. R. No.168056, September 1, 2005], which is referred to as subordinate legislation.

          In  this instance, there is a requirement that the law is complete in all aspects so what is delegated is merely the implementation of the law or there exists sufficiently determinate standards to guide the delegate and prevent a total transference of the taxing power.

          9.            “Paradigm shift” from exclusive Congressional power to direct grant of taxing power to local legislative bodies.  The power to tax is no longer vested exclusively on Congress; local legislative bodies are now given direct authority to levy taxes, fees and other charges pursuant to Article X, section 5 of the 1987 Constitution.  (Batangas Power Corporation v. Batangas City, et al. G. R. No. 152675, and companion case, April 28, 2004 citing National Power Corporation v. City of Cabanatuan, G. R. No. 149110, April 9, 2003) 

Local government legislation, “is not regarded as a transfer of general legislative power, but rather as the grant of authority to prescribe local regulations, according to immemorial practice, subject, of course, to the interposition of the superior in cases of necessity.”  (People v. Vera, 65 Phil. 56)

          10.          Taxing power of the local government is limited.  The taxing power of local governments is limited in the sense that Congress can enact legislation granting tax exemptions.

          While the system of local government taxation has changed with the onset of the 1987 Constitution, the power of local government units to tax is still limited.

          While the power to tax by local governments may be exercised by local legislative bodies, no longer merely by virtue of a valid delegation as before, but pursuant to direct authority conferred by Section 5, Article X of the Constitution, the basic doctrine on local taxation remains essentially the same,  “the power to tax is [still] primarily vested in the Congress.”  (Quezon City, et al., v. ABS-CBN Broadcasting Corporation, G. R. No. 166408, October 6, 2008 citing City Government of Quezon City, et al. v.  Bayan Telecommunications, Inc., G.R. No. 162015, March 6, 2006, 484 SCRA 169 in turn referring to Mactan Cebu International Airport Authority, v. Marcos, G.R. No. 120082,  September 11, 1996, 261 SCRA 667, 680)

          11.          Further amplification by Bernas of the local government’s power to tax. “What is the effect of Section 5 on the fiscal position of municipal corporations?  Section 5 does not change the doctrine that municipal corporations do not possess inherent powers of taxation.  What it does is to confer municipal corporations a general power to levy taxes and otherwise create sources of revenue.  They no longer have to wait for a statutory grant of these powers.  The power of the legislative authority relative to the fiscal powers of local governments has been reduced to the authority to impose limitations on municipal powers.  Moreover, these limitations must be “consistent with the basic policy of local autonomy.”  The important legal effect of Section 5 is thus to reverse the principle that doubts are resolved against municipal corporations.  Henceforth, in interpreting statutory provisions on municipal fiscal powers, doubts will be resolved in favor of municipal corporations.  It is understood, however, that taxes imposed by local government must be for a public purpose, uniform within a locality, must not be confiscatory, and must be within the jurisdiction of the local unit to pass.” (Quezon City, et al., v. ABS-CBN Broadcasting Corporation, G. R. No. 166408, October 6, 2008 citing City Government of Quezon City, et al. v.  Bayan Telecommunications, Inc., G.R. No. 162015, March 6, 2006, 484 SCRA 169)

            12.       Reconciliation of the local government’s authority to tax and the Congressional general taxing power.  Congress has the inherent power to tax, which includes the power to grant tax exemptions.  On the other hand, the power of  local governments, such as provinces and cities for example Quezon City,  to tax is prescribed by Section 151 in relation to Section 137 of the LGC which expressly provides that notwithstanding any exemption granted by any law or other special law, the City or a province may impose a franchise tax.  It must be noted that Section 137 of the LGC does not prohibit grant of future exemptions. 

            The Supreme Court in a series of cases has sustained the power of Congress to grant tax exemptions over and above the power of the local government’s delegated power to tax. (Quezon City, et al., v. ABS-CBN Broadcasting Corporation, G. R. No. 166408, October 6, 2008 citing City Government of Quezon City, et al. v.  Bayan Telecommunications, Inc., G.R. No. 162015, March 6, 2006, 484 SCRA 16)

            “Indeed, the grant of taxing powers to local government units under the Constitution and the LGC does not affect the power of Congress to grant exemptions to certain persons, pursuant to a declared national policy.  The legal effect of the constitutional grant to local governments simply means that in interpreting statutory provisions on municipal taxing powers, doubts must be resolved in favor of municipal corporations.” [Ibid., referring to Philippine Long Distance Telephone Company, Inc. (PLDT) vs. City of Davao]

       âââ 13.   General  principles  of  income  taxation  in  the Philippines or the source rule of income taxation as provided in the NIRC of 1997.

       a.  A citizen of the Philippines residing therein is taxable on all income derived from sources within and without the Philippines;

       b.              A nonresident citizen is taxable only on income derived from sources within the Philippines;

       c.  An individual citizen of the Philippines who is working and deriving income abroad as an overseas contract worker is taxable only on income from sources within the Philippines: Provided, That a seaman who is a citizen of the Philippines and who receives compensation for services rendered abroad as a member of the complement of a vessel engaged exclusively in international trade shall be treated as an overseas contract worker;

       d.              An alien individual, whether a resident or not of the Philippines, is taxable only on income derived from sources within the Philippines;

      e.  A domestic corporation is taxable on all income derived from sources within and without the Philippines; and

      f.  A foreign corporation, whether engaged or not in trade or business in the Philippines, is taxable only on income derived from sources within the Philippines.  (Sec. 23, NIRC of 1997, emphasis supplied)

          ââ14.     Juliane a non-resident alien appointed as a commission agent by a domestic corporation with a sales commission of 10% all sales actually concluded and collected through her efforts.  The local company withheld the amount of P107,000 from her sales commission and remitted the same to the BIR.

          She filed a claim for refund alleging that her sales commission is not taxable because the same was a compensation for her services rendered in Germany and therefore considered as income from sources outside the Philippines.

          Is her contention correct ?

          SUGGESTED ANSWER:  Yes.  The important factor which determines the source of income of personal services is not the residence of the payor, or the place where the contract for service is entered into, or the place of payment, but the place where the services were actually performed.

          Since the activity of securing the sales were in Germany, then the income did not originate from sources from within the Philippines.  (Commissioner of Internal Revenue v. Baier-Nickel, G. R. No. 153793, August 29, 2006)

            ââ 15. Ensite, Ltd.. is a Canadian corporation not doing business in the Philippines.  It holds 40% of the shares of Philippine Stamping Plant, Inc.,., a Philippine company while the 60% is owned by Fred Corporation, a Filipino-owned Philippine corporation.  Ensite Co. also owns 100% of the shares of Susanto Co., an Indonesian company which has a duly licensed Philippine branch. Due to worldwide restructuring of the Ensite Ltd.,. group, Ensite Ltd.,. decided to sell all its shares in Philippine Stamping Plant, Inc. and Susanto Co.  The negotiations for the buy-out and the signing of the Agreement of Sale were all done in the Philippines.  The Agreement provides that the purchase price will be paid to Ensite Ltd’s bank account in the U.S. and that title to the Philippine Stamping Plant, Inc.  and Susanto Co. shall be transferred to General Co., in Toronto Canada where stock certificates will be delivered.  General Co. seeks your advice as to whether or not it will subject the payments of the purchase price to withholding tax.  Explain your advice.                         SUGGESTED ANSWER:  The payments of the purchase price will be subject to withholding tax. Considering that all the activities (sales) occurred within the Philippines, the income is considered as income from within, subject to Philippine income taxation.  Ensite, Ltd. being a foreign corporation is to be taxed on its income derived from sources within the Philippines.                                                                                                                                                                                                                                                          ââ 16. Ensite, Ltd. is a Canadian corporation, which has a duly licensed Philippine branch engage in trading activities in the Philippines.  Ensite, Ltd.. also invested directly in 40% of the shares of stock of Philippine Stamping Plant, Inc.., a Philippine corporation.  These shares are booked in the Head Office of Ensite, Ltd.. and are not reflected as assets of the Philippine branch.  In 2009, Philippine Stamping Plant, Inc.. declared dividends to its stockholders.  Before remitting the dividends to Ensite Ltd.,., Philippine Stamping Plant, Inc. Co. seeks your advice as to whether it will subject the remittance to withholding tax.  There is no need to discuss WT rates, if applicable.  Focus your discussion on what is the issue.                                                                          SUGGESTED ANSWER:  Philippine Stamping Plant, Inc.. should subject the remittance to withholding tax..  Since Philippine Stamping Plant. is a Philippine corporation, its shares of stock have obtained a business situs in the Philippines, hence the dividends are considered as income from within.  Ensite. Ltd., being a foreign corporation, should be subject to tax on its income from within.

            ââ 17. Philippine Stamping Plant, Inc., a Philippine corporation, has an executive Larry who is a Filipino citizen.  Philippine Stamping Plant, Inc,. has a subsidiary in Malaysia (Kuala Lumpur Manufacturing, Inc.) and will assign Larry for an indefinite period to work full time for Kuala Lumpur Manufacturing, Inc..  Larry will bring his family to reside in Malaysia and will lease out his residence in the Philippines.  The salary of Larry will be shouldered 50% by Philippine Stamping Plant, Inc.. while the other 50% plus housing, cost of living and educational allowances of Larry’s dependents will be shouldered by Kuala Lumpur Manufacturing, Inc..  Philippine Stamping Plant, Inc.. will credit the 50% of Larry’s salary to his Philippine bank account.  Larry will sign the contract of employment in the Philippines.  He will also be receiving rental income for the lease of his Philippine residence.                                                                                                                      Are these salaries, allowances and rentals subject to Philippine income tax? Explain briefly.                                                    SUGGESTED ANSWER:  The salaries and allowances of Larry, being derived from labor or personal services rendered outside of the Philippines is considered as income from without.  Since Larry is an OCW, then he is to be taxed only on his income derived from within the Philippines such as the rentals on his Philippine residence, and not on his income from without.

          ââ18.     Obama Airlines, Inc., a foreign airline company which does not maintain any flight to and from the Philippines sold air tickets in the Philippines, through a general sales agent, relating to the carriage of passengers and cargo between two points, both outside the Philippines.

          a.            Is Obama, Inc., subject to income taxes on the sale of the tickets ?

          SUGGESTED ANSWER:  Yes.  The source of income which is taxable is that “activity” which produced the income.  The ”sale of tickets” in the Philippines is the activity that determines whether such income is taxable in the Philippines.

          The tickets exchanged hands here and payments for fares were also made here in Philippine currency.  The situs of the source of payments is the Philippines.  the flow of wealth proceeded from and occurred, within the Philippine territory, enjoying the protection accorded by the Philippine Government. In consideration of such protection, the flow of wealth should share the burden of supporting the government.  [Commissioner of Internal Revenue v. British Overseas Airways Corporation (BOAC), 149 SCRA 395]

          Off-line air carriers having general sales agents in the Philippines are engaged in or doing business in the Philippines and  their income from sales of passage documents here is income from within the Philippines. Thus, the off-line air carrier liable for the 32% (now 30%) tax on its taxable income.  [South African Airways v. Commissioner of Internal Revenue, G.R. No. 180356, February 16, 2010 citing Commissioner of Internal Revenue v. British Overseas Airways Corporation (British Overseas Airways), No. L-65773-74, April 30, 1987, 149 SCRA 395]

          b.            Supposing that Obama, Inc., sells tickets outside of the Philippines for passengers it carry from Gold City, South Africa to the Philippines but returns to South Africa without any cargo or passengers.  Would it then be subject to any Philippine tax on such sales ?

          SUGGESTED ANSWER:  It would not be subject to any tax.  It is not subject to any income tax because the activity which generated the income (the sale of the tickets)  was performed outside of the Philippines.

It is not subject to the carrier’s tax based on gross Philippine billings because there were no lifts that originated from the Philippines.  “Gross Philippine Billings” refers to the amount of gross revenue derived from carriage of persons, excess baggage, cargo and mail originating from the Philippines in a continuous and uninterrupted flight, irrespective of the place of sale or issue and the place of payment of the ticket or passage document.”  [NIRC of 1997, Sec. 28(A)(3)(a)]

          c.            Would your answer be the same if Obama, Inc. sold tickets outside of the Philippines for travelers who are going to picked up by Obama, Inc., planes from the Diosdado Macapagal Intl. Airport at Clark, Angeles, Pampanga, bound for Nairobi, Kenya ?  Reason out your answer.

          SUGGESTED ANSWER:  No more.  This time Obama, Inc., would be subject to the carrier’s tax based on Gross Philippine  Billings. (GPB).

          “Gross Philippine Billings” refers to the amount of gross revenue derived from carriage of persons, excess baggage, cargo and mail originating from the Philippines in a continuous and uninterrupted flight, irrespective of the place of sale or issue and the place of payment of the ticket or passage document.”  [NIRC of 1997, Sec. 28(A)(3)(a)]

The place of sale  is irrelevant; as long as the uplifts of passengers and cargo occur from the Philippines, income is included in GPB. (South African Airways v. Commissioner of Internal Revenue, G.R. No. 180356, February 16, 2010)

          19.          No improper delegation of legislative authority to tax.   The power to tax is inherent in the State, such power being inherently legislative, based on the principle that taxes are a grant of the people who are taxed, and the grant must be made by the immediate representatives of the people; and where the people have laid the power, there it must remain and be exercised. (Commissioner of Internal Revenue v. Fortune Tobacco Corporation, G. R. Nos. 167274-75, July 21, 2008)  

CONSTITUTIONAL LIMITATIONS

          1.            Constitutional limitations on the power of taxation . The general or indirect constitutional limitations as well as the specific or direct constitutional limitations.

          2.   The general or indirect constitutional limitations on the power of taxation are:

          a.            Due process clause;

          b.            Equal protection clause;

          c.            Freedom of the press;

          d.            Religious freedom;

          e.            No taking of private property without just compensation;

          f.             Non-impairment clause;

          g.            Law-making process:

            1)         Bill should embrace only one subject        expressed         in the title thereof;

            2)         Three (3) readings on three separate days;

            3)         Printed copies in final form distributed three         (3) days before passage.

          h.            Presidential power to grant reprieves, commutations and pardons and remittal of fines and forfeiture after conviction by final judgment.

          3.            The specific or direct constitutional limitation.

          a.            No imprisonment for non-payment of a poll tax;

          b.            Taxation shall be uniform and equitable;

          c.            Congress shall evolve a progressive system of taxation;

          d.            All appropriation, revenue or tariff bills shall originate exclusively in the House of Representatives, but the Senate may propose and concur with amendments;

          e.  The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object;

          f.             Delegated power of the President to impose tariff rates, import and export quotas, tonnage and wharfage dues:

            1)         Delegation by Congress

            2)         through a law

            3)         subject to Congressional limits and          restrictions

            4)         within the framework of national development program.

          g.            Tax exemption of charitable institutions, churches, parsonages and convents appurtenant thereto, mosques, and all lands, buildings and improvements of all kinds actually, directly and exclusively used for religious, charitable or educational purposes;

          h.            No tax exemption without the concurrence of majority vote of all members of Congress;

          i.             No use of public money or property for religious purposes except if priest is assigned to the armed forces, penal institutions, government orphanage or leprosarium;

          j.             Money collected on tax levied for a special purpose to be used only for such purpose, balance if any, to general funds;

          k.            The Supreme Court's power to review judgments or orders of lower courts in all cases involving the legality of any tax, impose, assessment or toll or the legality of any penalty imposed in relation to the above;

          l.             Authority of local government units to create their own sources of revenue, to levy taxes, fees and other charges subject to guidelines and limitations imposed by Congress consistent with the basic policy of local autonomy;

          m.           Automatic release of local government's just share in national taxes;

          n.            Tax exemption of all revenues and assets of non-stock, non-profit educational institutions used actually, directly and exclusively for educational purposes;

          o.  Tax exemption of all revenues and assets of proprietary or cooperative educational institutions subject to limitations provided by law including restrictions on dividends and provisions for reinvestment of profits;

          p.            Tax exemption of grants, endowments, donations or contributions used actually, directly and exclusively for educational purposes subject to conditions prescribed by law.

          5.            Equal protection of the law clause is subject to reasonable classification.   If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another.  The classification must also be germane to the purpose of the law and must apply to all those belonging to the same  class. (Tiu, et al., v. Court of Appeals, et al., G.R. No. 127410, January 20, 1999)

          ââ 6.      Requisites for valid classification.  All that is required of a valid classification is that it be reasonable, which means that        a.         the classification should be based on substantial distinctions which make for real differences,

          b.            that it must be germane to the purpose of the law;

          c.            that it must not be limited to existing conditions only; and

          d.            that it must apply equally to each member of the class.

          The standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.  [ABAKADA Guro Party List, etc., v. Purisima, etc., et al., G. R. No. 166715, August 14, 2008]

          7.            Equal protection does not demand absolute equality.  It merely requires that all persons shall be treated alike, under like circumstances and conditions, both as to the privileges conferred and liabilities enforced. (Santos v. People, et al, G. R. No. 173176, August 26, 2008)

             It is imperative to duly establish that the one invoking equal protection and the person to which she is being compared were indeed similarly situated, i.e., that they committed identical acts for which they were charged with the violation of the same provisions of the NIRC; and that they presented similar arguments and evidence in their defense - yet, they were treated differently.  (Santos, supra)

  

            8.     Tests to determine validity of classification.       The United States Supreme Court has established different tests to determine the validity of a classification and compliance with the equal protection clause.  The recognized tests are:

            a.         The traditional (or rational basis) test.

            b.         The strict scrutiny (or compelling interest) test.

            c.    The intermediate level of scrutiny (or quasi-suspect class) test.            

            9.         The traditional (or rational basis) test used in order to determine the validity of classification.  The classification is valid if it is rationally related to a constitutionally permissible state interest.

            The complainant must prove that the classification is “invidous,” “wholly arbitrary,” or ”capricious,” otherwise the classification is presumed to be valid.  (Lindsley v. Natural Carboinic Gas Co., 220 U.S. 61; McGowan v.  Maryland, 366 U.S. 420; United States Railroad Retirement Board v. Fritz, 449 U.S. 166)

            10.       The strict scrutiny (or compelling interest) test used in order to determine the validity of the classification.  Government regulation that intentionally discriminates against a “suspect class” such as racial or ethnic minorities, is subject to strict scrutiny and considered to violate the equal protection clause unless found necessary to promote a compelling state interest. 

            A classification is necessary when it is narrowly drawn so that no alternative, less burdensome means is available to accomplish the state interest. 

            Thus, it was held that denial of free public education to the children of illegal aliens imposes an enormous and lasting burden based on a status over which the children have no control is violative of equal protection because there is no showing that such denial furthers a “substantial” state goal.  (Plyler v. Doe, 457 U.S. 202)

            11.       The intermediate level of scrutiny (or quasi-suspect class) test used in order to determine the validity of he classification.  Classification based on gender or legitimacy are not “suspect,” but neither are they judged by the traditional or rational basis test. 

            Intentional discriminations against members of a quasi-suspect class violate equal protection unless they are substantially related to important government objectives.  (Craig v. Boren, 429 U.S. 190) 

            Thus, a state law granting a property tax exemption to widows, but not widowers, has been held valid for it furthers the state policy of cushioning the financial impact of spousal loss upon the sex for whom that loss usually imposes a heavier burden.  (Kahn v. Shevin, 416 U.S. 351)

         

          12.          Equality and uniformity of taxation may mean the same as equal protection.  In such a case, the terms would mean that all subjects and objects of taxation which are similarly situated shall be subject to the same burdens and granted the same privileges without any discrimination whatsoever.

          13.          It is inherent in the power to tax that the State be free to select the subjects of taxation, and it has been repeatedly held that, "inequalities which result from a singling out of one particular class of taxation, or exemption, infringe no constitutional limitation."  (Commissioner of Internal Revenue, et al., v. Santos, et al., 277 SCRA 617)

            ââ 9.   Benjie is a law-abiding citizen who pays his real estate taxes promptly.  Due to a series of typhoons and adverse economic conditions, an ordinance is passed by Soliman City granting a 50% discount for payment of unpaid real estate taxes for the preceding year and the condonation of all penalties on fines resulting from the late payment.

            Arguing that the ordinance rewards delinquent tax payers and discriminates against prompt ones, Benjie demands that he be refunded an amount equivalent to one-half of the real property taxes he paid. The municipal attorney rendered an opinion that Benjie cannot be reimbursed because the ordinance did not provide for such reimbursement. Benjie files suit to declare the ordinance void on the ground that it is a class legislation. Will his suit prosper ? Explain your answer briefly. 

            SUGGESTED ANSWER:  No.  There is no class legislation because there is no violation of the equal protection suit. There is a valid classification between those who already paid their taxes and those who have not.  Furthermore, the taxing authority has the prerogative to select the subjects and objects of taxation, including granting a 50% discount in the  payment of unpaid  real estate taxes, and the condonation of all penalties on fines resulting from  late payment.

          10.          The rewards law to tax collectors  does not violate equal protection.  The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary. With respect to RA 9335, it’s expressed public policy is the optimization of the revenue-generation capability and collection of the BIR and the BOC. Since the subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the law concerns only the BIR and the BOC because they have the common distinct primary function of generating revenues for the national government through the collection of taxes, customs duties, fees and charges.

          Indubitably, such substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection.  (ABAKADA Guro Party List, etc., v. Purisima, etc., et al.,    G. R. No. 166715, August 14, 2008)

            11.       The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws.

             The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.  This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design over another not to be inferred from the action itself. 

(Santos v. People, et al, G. R. No. 173176, August 26, 2008)

            12.       Equal protection should not be used to protect commission of crime.  While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that they are to be protected in the commission of crime.  It would be unconscionable, for instance, to excuse a defendant guilty of murder because others have murdered with impunity. 

            Likewise, if the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a defense for others charged with crime, the result would be that the trial of the district attorney for nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the enforcement of law would suffer a complete breakdown. (Santos v. People, et al, G. R. No. 173176, August 26, 2008)

          â 13.      Illustration of double taxation in local taxation.  there is indeed double taxation if Coca-Cola is subjected to the taxes under both Sections 14 and 21 of Tax Ordinance No. 7794, since these are being imposed: (1) on the same subject matter – the privilege of doing business in the City of Manila; (2) for the same purpose – to make persons conducting business within the City of Manila contribute to city revenues; (3) by the same taxing authority –  City of Manila; (4) within the same taxing jurisdiction – within the territorial jurisdiction of the City of Manila; (5) for the same taxing periods – per calendar year; and (6) of the same kind or character – a local business tax imposed on gross sales or receipts of the business.  (The City of Manila, et al., v. Coca-Cola Bottlers Philippines, Inc., G. R. No. 181845, August 4, 2009)

          14.          A lawful tax on a new subject, or an increased tax on an old one, does not interfere with a contract or impairs its obligation, within the meaning of the constitution.  (Tolentino v. Secretary of Finance, et al., and companion cases, 235 SCRA 630)

          15.          The withdrawal of a tax exemption should not be construed as prohibiting future grants of exemption from all taxes.  (Philippine Long Distance Telephone Company, Inc., v. City of Davao, et al., etc., G. R. No. 143867, August 22, 2001)

            16.       Tax exemptions in franchises are always subject to withdrawal.  A legislative franchise is granted with the express condition that it is subject to amendment, alteration, or repeal. (1987 Constitution,  Art. XII, Sec. 11)

            It is enough to say that the parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of the State. For not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of essential attributes of sovereign power is also read into contracts as a basic postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government which retains adequate authority to secure the peace and good order of society. (Smart Communications, Inc. v. The City of Davao, etc., et al., G. R. No. 155491, September 16, 2008)

            NOTES AND COMMENTS:  Philippine Long Distance Telephone Company, Inc., v. City of Davao, et al., etc., G. R. No. 143867, August 22, 2001 made the observation that since Smart’s franchise was granted after the effectivity of the Local Government Code that its tax exemption privilege was reinstated.  However, Smart Communications, Inc. v. The City of Davao, etc., et al., G. R. No. 155491, September 16, 2008 is explicit in its holding that Smart is not entitled to a tax exemption.

            â 17.    When withdrawal of a tax exemption impairs the obligation of contracts.  The Contract Clause has never been thought as a limitation on the exercise of the State’s power of taxation save only where a tax exemption has been granted for a valid consideration. (Smart Communications, Inc. v. The City of Davao, etc., et al., G. R. No. 155491, September 16, 2008) citing Tolentino v. Secretary of Finance, G. R. No. 115455, August 25, 1994, 235 SCRA 630, 685)  The author opines that since practically all franchises granted to telecommunications companies are similarly worded that the above doctrine finds application to the others)

          18.   The primary reason for the withdrawal of tax exemption privileges granted to government owned and controlled corporations and all other units of government was that such privilege resulted to serious tax base erosion and distortions in the tax treatment of similarly situated enterprises, hence resulting in the need for these entities to share in the requirements of development, fiscal or otherwise, by paying the taxes and other charges due them. (Philippine Ports Authority v.  City of Iloilo, G. R. No. 109791, July 14, 2003)

          19.          National Power Corporation (NPC) is of the insistence that it is not subject to the payment of franchises taxes imposed by the Province of Isabela because all of its shares are owned by the Republic of the Philippines.  It is thus, an instrumentality of the National Government which is exempt from local taxation. As such it is not a private corporation engaged in “business enjoying franchise”

          Is such contention meritorious ?

          SUGGESTED ANSWER:  No.   Philippine Long Distance Telephone Company, Inc., v. City of Davao, et al., etc., G. R. No. 143867, August 22, 2001,  upheld the authority of the City of Davao, a local government unit, to impose and collect a local franchise tax because the Local Government Code has withdrawn all tax exemptions previously enjoyed by all persons and authorized local government units to impose a tax on business enjoying a franchise tax notwithstanding the grant of tax exemption to them.

          20.          “In lieu of all taxes” in the franchise of ABS-CBN does not exempt it from local franchise taxes. It does not expressly provide what kind of taxes ABS-CBN is exempted from.  It is not clear whether the exemption would include both local, whether municipal, city or provincial, and national tax. Whether the “in lieu of all taxes provision” would include exemption from local tax is not unequivocal.

          The right to exemption from local franchise tax must be clearly established and cannot be made out of inference or implications but must be laid beyond reasonable doubt.  Verily, the uncertainty in the “in lieu of all taxes” provision should be construed against ABS-CBN.  ABS-CBN has the burden to prove that it is in fact covered by the exemption so claimed but has failed to do so.  (Quezon City, et al., v. ABS-CBN Broadcasting Corporation, G. R. No. 166408, October 6, 2008) 

          NOTES AND COMMENTS:  This is practically the same holding in an earlier case  involving another telecommunications company Smart Communications, Inc. v. The City of Davao, etc., et al., G. R. No. 155491, September 16, 2008.  The author opines that since practically all franchises granted to telecommunications companies are similarly worded that the above doctrine finds application to the others.)

            â 21.    “In lieu of all taxes” refers to national internal revenue taxes and not to local taxes.  The “in lieu of all taxes” clause applies only to national internal revenue taxes and not to local taxes. As appropriately pointed out in the separate opinion of Justice Antonio T. Carpio in a similar case involving a demand for exemption from local franchise taxes:

            [T]he "in lieu of all taxes" clause in Smart's franchise refers only to taxes, other than income tax, imposed under the National Internal Revenue Code. The "in lieu of all taxes" clause does not apply to local taxes. The proviso in the first paragraph of Section 9 of Smart's franchise states that the grantee shall "continue to be liable for income taxes payable under Title II of the National Internal Revenue Code." Also, the second paragraph of Section 9 speaks of tax returns filed and taxes paid to the "Commissioner of Internal Revenue or his duly authorized representative in accordance with the National Internal Revenue Code." Moreover, the same paragraph declares that the tax returns "shall be subject to audit by the Bureau of Internal Revenue." Nothing is mentioned in Section 9 about local taxes. The clear intent is for the "in lieu of all taxes" clause to apply only to taxes under the National Internal Revenue Code and not to local taxes. Even with respect to national internal revenue taxes, the "in lieu of all taxes" clause does not apply to income tax.

            If Congress intended the "in lieu of all taxes" clause in Smart's franchise to also apply to local taxes, Congress would have expressly mentioned the exemption from municipal and provincial taxes. Congress could have used the language in Section 9(b) of Clavecilla's old franchise, as follows:

            x x x in lieu of any and all taxes of any kind, nature or description levied, established or collected by any authority whatsoever, municipal, provincial or national, from which the grantee is hereby expressly exempted, x x x. (Emphasis supplied).

            However, Congress did not expressly exempt Smart from local taxes. Congress used the "in lieu of all taxes" clause only in reference to national internal revenue taxes. The only interpretation, under the rule on strict construction of tax exemptions, is that the "in lieu of all taxes" clause in Smart's franchise refers only to national and not to local taxes.    [Smart Communications, Inc. v. The City of Davao, etc., et al., G. R. No. 155491, September 16, 2008 citing Philippine Long Distance Telephone Company, Inc. v. City of Davao, 447 Phil. 571, 594 (2003)]

            NOTES AND COMMENTS:  The author opines that the above finds application to all telecommunications companies.

            22.       The “in lieu of all taxes” clause in the franchise of ABS-CBN has become functus officio with the abolition of the franchise tax on broadcasting companies with yearly gross receipts exceeding Ten Million Pesos.  The clause  “in lieu of all taxes” does not pertain to VAT or any other tax.  It cannot apply when what is paid is a tax other than a franchise tax.  Since the franchise tax on the broadcasting companies with yearly gross receipts exceeding ten million pesos has been abolished, the “in lieu of all taxes” clause has now become functus officio, rendered inoperative. (Quezon City, et al., v. ABS-CBN Broadcasting Corporation, G. R. No. 166408, October 6, 2008) 

            NOTES AND COMMENTS:  This is practically the same holding in an earlier case  involving another telecommunications company. Smart Communications, Inc. v. The City of Davao, etc., et al., G. R. No. 155491, September 16, 2008.  The author opines that since practically all franchises granted to telecommunications companies are similarly worded that the above doctrine finds application to the others.)

          ââ 23.    Double taxation in its generic sense, this means taxing the same subject or object twice during the same taxable period.  In its particular sense, it may mean direct duplicate taxation, which is prohibited under the constitution because it violates the concept of equal protection, uniformity and equitableness of taxation.  Indirect duplicate taxation is not anathematized by the above constitutional limitations.

          ââ 24.    Elements of direct duplicate taxation:

          a.            Same

            1)         Subject or object is taxed twice

            2)         by the same taxing authority

            3)         for the same taxing purpose

            4)         during the same taxable period

b.         Taxing all of the subjects or objects for the first time without taxing all of them for the second time.

If any of the elements are absent then there is indirect duplicate taxation which is not prohibited by the constitution.

          NOTES AND COMMENTS:

          a.            Presence of the 2^nd element violates the equal protection clause.  If only the 1^st element is present, taxing the same subject or object twice, by the same taxing authority, etc., there is no violation of the equal protection clause because all subjects and objects that are similarly situated are subject to the same burdens and granted the same privileges without any discrimination whatsoever,

          The presence of the 2^nd element, taxing all of the subjects and objects for the first time, without taxing all for the second time, results to discrimination among subjects and objects that are similarly situated, hence violative of the equal protection clause.

          25.  Double taxation a valid defense against the legality of a tax measure if the double taxation is direct duplicate taxation, because it would violate the equal protection clause of the constitution.

          26.          When an item of income is taxed in the Philippines and the same income is taxed in another country, this would be known as international juridical double taxation which is the imposition of comparable taxes in two or more states on the same taxpayer in respect of the same subject matter and for identical grounds. (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., et al., G.R. No. 127105,  June 25, 1999)

          ââ 27.  Methods for avoiding double taxation (indirect duplicate taxation).

          a.            Tax treaties which exempts foreign nationals from local taxation and local nationals from foreign taxation under the principle of reciprocity.

          b.            Tax credits where foreign taxes are allowed as deductions from local taxes that are due to be paid.

          c.            Allowing foreign taxes as a deduction from gross income.

          28.          Tax credit generally refers to an amount that is subtracted directly from one’s total tax liability, an allowance against the tax itself, or a deduction from what is owned.

          A tax credit reduces the tax due, including –whenever applicable – the income tax that is determined after applying the corresponding tax rates to taxable income.  (Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G. R. No. 159647, April 15, 2005)

          29.          A tax deduction is defined as a subtraction fro income for tax purposes, or an amount that is allowed by law to reduce income prior to the application of the tax rate to compute the amount of tax which is due.

          A tax deduction reduces the income that is subject to tax in order to arrive at taxable income. (Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G. R. No. 159647, April 15, 2005)

          â 30.      The petitioners allege that the R-VAT law is constitutional because the Bicameral Conference Committed has exceeded its authority in including provisions which were never included in the versions of both the House and Senate such as inserting the stand-by authority to the President to increase the VAT from 10% to 12%; deleting entirely the no pass-on provisions found in both the House and Senate Bills; inserting the provision imposing a 70% limit on the amount of input tax to be credited against the output tax; and including the amendments introduced only by Senate Bill No. 1950 regarding other kinds of taxes in addition to the value-added tax.  Thus, there was a violation of the constitutional mandate that revenue bills shall originate exclusively from the House of Representatives.

          Are the contentions of such weight as to constitute grave abuse of discretion which may invalidate the law ?  Explain briefly.

          SUGGESTED ANSWER:  No.  There was no grave abuse of discretion because  all the changes and modifications made by the Bicameral Conference Committee were germane to subjects of the provisions referred to it for reconciliation.

          The Bicameral Conference Committee merely exercised the judicially recognized long-standing legislative practice of giving said conference committee ample latitude for compromising differences between the Senate and the House.  [Abakada Guro Party List (etc.) v. Ermita, etc., et al., G. R. No. 168056, September 1, 2005 and companion cases]

         

          31.    The VAT while regressive is NOT violative of the mandate to evolve a progressive system of taxation.  Do you agree ?  The mandate to Congress is not to prescribe but to evolve a progressive system of taxation.  Otherwise, sales taxes which perhaps are the oldest form of indirect taxes, would have been prohibited with the proclamation of the constitutional provision.  Sales taxes are also regressive. .  [Abakada Guro Party List (etc.) v. Ermita, etc., et al., G. R. No. 168056, September 1, 2005 and companion cases citing Tolentino v. Secretary of Finance, et al., G. R. No. 115455, August 25, 1994, 235 SCRA 630]

          32.          All revenues and assets of non-stock, non-profit educational institutions that are actually, directly and exclusively used for educational purposes shall be exempt from taxation.

          33.          Revenues and assets of proprietary educational institutions, including those which are cooperatively owned, may be entitled to exemptions subject to limitations provided by law including restrictions on dividends and provisions for reinvestments.  There is no law at the present which grants exemptions, other the exemptions granted to cooperatives.                

         

OTHER CONCEPTS

            ââ1.   Distinguish tax from debt.

	TAX	DEBT
Basis	based on law	based on contract or judgment
Failure to Pay	may result in imprisonment	no imprisonment
Mode of Payment	generally payable in money	payable in money, property or service
Assignability	not    assignable	assignable
Payment	unless  it becomes a debt is not subject to compensation or set-off	may be a subject
Interest	does not draw interest unless delinquent	draws interest if stipulated or delayed
Authority	imposed by public authority	can be imposed by private individuals
Prescription	Prescriptive periods for tax under NIRC	debt under the Civil Code

WARNING:  Do not use the above arrangement in answering Bar questions.

          2.            Compensation takes place by operation of law, where the local government and the taxpayer are in their own right reciprocally debtors and creditors of each other, and that the debts are both due and demandable, in consequence of Articles 1278 and 1279 of the Civil Code.  (Domingo v. Garlitos, 8 SCRA 443)

         

ââ 3.  May there be compensation or set-off between a national tax and a debt ?  Reason out your answer.                                        SUGGESTED ANSWER:  As a general rule, there could be no compensation or set-off between a tax and a debt for the following reasons:                                                                                                                                      a.            Lifeblood theory.                                                                                                b.         Taxes are not contractual obligations but arise out of a duty to, and are the positive acts of government, to the making and enforcing of which the personal consent of the individual taxpayer is not required. (Republic v. Mambulao Lumber Co., 4 SCRA 622)                                                              c.          Taxes cannot be the subject of compensation because the government and taxpayer are not mutually creditors and debtors of each other and a claim for taxes is not such a debt, demand, contract or judgment as is allowed to be set-off.

Thus, it is correct to say that the offsetting of a taxpayer’s tax refund with its alleged tax deficiency is unavailing under Art. 1279 of the Civil Code.  (South African Airways v. Commissioner of Internal Revenue, G.R. No. 180356, February 16, 2010 reiterating Caltex Philippines, Inc. v. Commission on Audit, which applied Francia v. Intermediate Appellate Court)

            ââ4. Exceptions: When set-off or compensation allowed for local taxes.                                                                                          a.         Where both claims already become overdue and demandable as well as fully liquidated. Compensation takes place by operation of law under Art. 1200 in relation to Arts. 1279 and 1290 all of the Civil Code.  (Domingo v. Garlitos, 8 SCRA 443)                                                 b.         Compensation takes place by operation of law, where the government and the taxpayer are in their own right reciprocally debtors and creditors of each other, and that the debts are both due and demandable. This is in consequence of Article 1278 and 1279 of the Civil Code. (Domingo v.  Garlitos, 8 SCRA 443)                                                                           c.          ,The Supreme Court upheld the validity of a set-off between the taxpayer and the government. In both cases, the claims of the taxpayers therein were certain and liquidated. The claims were certain since there were no doubts or disputes as to their refundability.  In fact, the government admitted the fact of over-payment.     (Commissioner   of     Internal    Revenue    v. Esso Standard Eastern, Inc., 172 SCRA 364)                              d.            In case of a tax overpayment, the BIR’s obligation to refund or off-set arises from the moment the tax was paid. REASON: Solutio indebeti. (Commissioner of Internal Revenue v. Esso Standard Eastern, Inc 172 SCRA 364)                                                                                                                         e.              While judgment should be rendered in favor of Republic for unpaid taxes, judgment ought at the same time to issue for Sampaguita Pictures commanding payment to the latter by the Republic of the value of the backpay certificates which the Republic received. (Republic v. Ericta, 172 SCRA 623)

            ââ 5.   Gilbert   obtained a   judgment for a sum of money against the municipality of Camiling. The judgment has become final although execution has not issued.  Upon receiving an assessment for municipal sales taxes from the Municipal Treasurer, Gilbert executed a partial assignment of his judgment sufficient to cover the assessment in favor of the Municipality.  May the Municipal Treasurer validly accept the assignment? Why?

            SUGGESTED ANSWER:  Yes.  The parties in this case are mutually debtors and creditors of each other, and since both of the claims became overdue, demandable and fully liquidated, compensation takes place by operation of law.  Such was the holding in Domingo v. Garlitos, 8 SCRA 443, a case decided by the Supreme Court whose factual antecedents are similar to the problem.                                                                                                                                                                                                                       6.         In case of doubt, tax laws must be construed strictly against the State and liberally in favor of the taxpayer because taxes, as burdens which must be endured by the taxpayer, should not be presumed to go beyond what the law expressly and clearly declares.  (Lincoln Philippine Life Insurance Company, Inc., etc., v. Court of Appeals, et al., 293 SCRA 92, 99)

            7.         Interpretation in the imposition of taxes, is not the similar doctrine as that applied to tax exemptions. The rule in the interpretation of tax laws is that a statute will not be construed as imposing a tax unless it does so clearly, expressly, and unambiguously.  A tax cannot be imposed without clear and express words for that purpose.  Accordingly, the general rule of requiring adherence to the letter in construing statutes applies with peculiar strictness to tax laws and the provisions of a taxing act are not to be extended by implication. In answering the question of who is subject to tax statutes, it is basic that in case of doubt, such statutes are to be construed most strongly against the government and in favor of the subjects or citizens because burdens are not to be imposed nor presumed to be imposed beyond what statutes expressly and clearly import. [Commissioner of Internal Revenue v. Fortune Tobacco Corporation, G. R. Nos. 167274-75, July 21, 2008  citing CIR v. Court of Appeals, 338 Phil. 322, 330-331 (1997)]    As burdens, taxes should not be unduly exacted nor assumed beyond the plain meaning of the tax laws.  (Ibid., citing CIR v. Philippine American Accident Insurance Company, Inc., G.R. No. 141658, March 18, 2005, 453 SCRA 668)

           

         

            8.         Strict interpretation of tax exemption laws. Taxes are what civilized people pay for civilized society.  They are the lifeblood of the nation.  Thus, statutes granting tax exemptions are construed stricissimi juris against the taxpayer and liberally in favor of the taxing authority.  A claim of tax exemption must be clearly shown and based on language in law too plain to be mistaken.  Otherwise stated, taxation is the rule, exemption is the exception. (Quezon City, et al., v. ABS-CBN Broadcasting Corporation, G. R. No. 166408, October 6, 2008 citing Mactan Cebu International Airport Authority v. Marcos, G.R. No. 120082,  September 11, 1996, 261 SCRA 667, 680) The burden of proof rests upon the party claiming the exemption to prove that it is in fact covered by the exemption so claimed. (Quezon City, supra citing Agpalo, R.E., Statutory Construction, 2003 ed., p. 301)

            9.         Rationale for strict interpretation of tax exemption laws.  The basis for the rule on strict construction to statutory provisions granting tax exemptions or deductions is to minimize differential treatment and foster impartiality, fairness and equality of treatment among taxpayers. (Quezon City, et al., v. ABS-CBN Broadcasting Corporation, G. R. No. 166408, October 6, 2008)   He who claims an exemption from his share of common burden must justify his claim that the legislature intended to exempt him by unmistakable terms.  For exemptions from taxation are not favored in law, nor are they presumed. They must be expressed in the clearest and most unambiguous language and not left to mere implications.  It has been held that “exemptions are never presumed the burden is on the claimant to establish clearly his right to exemption and cannot be made out of inference or implications but must be laid beyond reasonable doubt.  In other words, since taxation is the rule and exemption the exception,  the intention to make an exemption ought to be expressed in clear and unambiguous terms. (Quezon City, supra citing Agpalo, R.E., Statutory Construction, 2003 ed., p. 302)

          10.          Why are tax exemptions are strictly construed against the taxpayer and liberally in favor of the State ?

          SUGGESTED ANSWER:  Taxes are necessary for the continued existence of the State.

          11.          In case of a tax overpayment, where the BIR’s obligation to refund or set-off arises from the moment the tax was paid under the principle of solutio indebeti.  (Commissioner of Internal Revenue v. Esso Standard Eastern, Inc, 172 SRCA 364)

          12.          But note Nestle Phil. v. Court of Appeals, et al., G.R. No. 134114, July 6, 2001 which held that in order for the rule on solutio indebeti to apply it is an essential condition that the petitioner must first show that its payment of the customs duties was in excess of what was required by the law at the time the subject 16 importations of milk and milk products were made.  Unless shown otherwise, the disputable presumption of regularity of performance of duty lies in favor of the Collector of Customs.                      

          13.          Strict interpretation of a tax refund that partakes of the nature of a tax does not apply to  tax refund based on erroneous payment or where there is no law that authorizes collection of the tax.  There is parity between tax refund and tax exemption only when the former is based either on a tax exemption statute or a tax refund statute.  (Commissioner of Internal Revenue v. Fortune Tobacco Corporation, G. R. Nos. 167274-75, July 21, 2008)

          Tax refunds (or tax credits), on the other hand, are not founded principally on legislative grace but on the legal principle which underlies all quasi-contracts abhorring a person’s unjust enrichment at the expense of another. [Commissioner, supra citing Ramie Textiles, Inc. v. Hon. Mathay, Sr., 178 Phil. 482 (1979);  Puyat & Sons v. City of Manila, et al., 117 Phil. 985 (1963)] 

          The dynamic of erroneous payment of tax fits to a tee the prototypic quasi-contract, solutio indebiti, which covers not only mistake in fact but also mistake in law. (Commissioner, supra citing Civil Code, Arts. 2142, 2154 and 2155)

The Government is not exempt from the application of solutio indebiti. (Commissioner, supra citing Commissioner of Internal Revenue  v. Fireman’s Fund Insurance Co., G.R. No. L-30644, 9 March 1987, 148 SCRA 315, 324-325; Ramie Textiles, Inc. v. Mathay, supra; Gonzales Puyat & Sons v. City of Manila, supra)

Indeed, the taxpayer expects fair dealing from the Government, and the latter has the duty to refund without any unreasonable delay what it has erroneously collected. (Commissioner, supra citing Commissioner  of Internal Revenue  v. Tokyo Shipping Co., supra at 338) If the State expects its taxpayers to observe fairness and honesty in paying their taxes, it must hold itself against the same standard in refunding excess (or erroneous) payments of such taxes.  It should not unjustly enrich itself at the expense of taxpayers.  [Commissioner, supra citing AB Leasing and Finance Corporation v.  Commissioner of Internal Revenue, 453 Phil. 297 in turn citing BPI-Family Savings Bank, Inc. v. Court of Appeals, 330 SCRA 507, 510, 518 (2000)] And so, given its essence, a claim for tax refund necessitates only preponderance of evidence for its approbation like in any other ordinary civil case. (Commissioner, supra)

          14.          Tax refunds premised upon a tax exemption strictly construed,  Tax exemption is a result of legislative grace.  And he who claims an exemption from the burden of taxation must justify his claim by showing that the legislature intended to exempt him by words too plain to be mistaken.  [Commissioner of Internal Revenue v. Fortune Tobacco Corporation, G. R. Nos. 167274-75, July 21, 2008 citing Surigao Consolidated Mining Co. Inc. v. Commissioner of Internal Revenue and Court of Tax Appeals, 119 Phil. 33, 37 (1963)] 

          The rule is that tax exemptions must be strictly construed such that the exemption will not be held to be conferred unless the terms under which it is granted clearly and distinctly show that such was the intention. [Commissioner, supra citing Phil. Acetylene Co.  v. Commission of Internal Revenue, et al., 127 Phil. 461, 472 (1967);  Manila Electric Company v. Vera, G.R. No. L-29987, 22 October 1975, 67 SCRA 351, 357-358; Surigao Consolidated Mining Co. Inc. v. Commissioner of Internal Revenue, supra]

          A claim for tax refund may be based on statutes granting tax exemption or tax refund.  In such case, the rule of strict interpretation against the taxpayer is applicable as the claim for refund partakes of the nature of an exemption, a legislative grace, which cannot be allowed unless granted in the most explicit and categorical language.  The taxpayer must show that the legislature intended to exempt him from the tax by words too plain to be mistaken. [Commissioner, supra with a note to see  Surigao Consolidated Mining Co. Inc. v. CIR, supra at 732-733; Philex Mining Corp. v.  Commissioner  of Internal Revenue, 365 Phil. 572, 579 (1999); Davao Gulf Lumber Corp. v. Commissioner of Internal Revenue, 354 Phil. 891-892 (1998); . Commissioner of Internal Revenue  v. Tokyo Shipping Co., Ltd., 314 Phil. 220, 228 (1995)]

          15.   Effect of a  BIR reversal of a previous ruling interpreting a law as exempting a taxpayer.  A reversal of a BIR ruling favorable to a taxpayer would not necessarily create a perpetual exemption in his favor, for after all the government is never estopped from collecting taxes because of mistakes or errors on the part of its agents. (Lincoln Philippine Life Insurance Company, Inc., etc., v. Court of Appeals, et al., 293 SCRA 92, 99)

   

          16.          A tax amnesty is a general pardon or intentional overlooking by the State of its authority to impose penalties on persons otherwise guilty of evasion or violation of a revenue or a tax law. 

          It partakes of an absolute waiver by the government of its right to collect what is due it and to give tax evaders who wish to relent a chance to start with a clean slate. A tax amnesty, much like a tax exemption, is never favored nor presumed in law. The grant of a tax amnesty, similar to a tax exemption, must be construed strictly against the taxpayer and liberally in favor of the taxing authority.  (Philippine Banking Corporation, etc., v. Commissioner of Internal Revenue, G. R. No. 170574, January 30, 2009)

          17.          The purpose of tax amnesty is to

          a.    give tax evaders who wish to relent a chance to           start a clean slate, and to

          b.    give the government a chance to collect           uncollected tax from       tax evaders without having to go           through the tedious process of a tax case. (Banas, Jr. v. Court         of Appeals, et al., G.R. No. 102967, February 10, 2000)

         

          18.          Tax amnesty  distinguished from tax exemption.

          a.            Tax amnesty is an immunity from all criminal, civil and administrative liabilities arising from nonpayment of taxes (People v. Castaneda, G.R. No. L-46881, September 15, 1988) WHILE a tax exemption is an immunity from civil liability only.  It is an immunity or privilege, a freedom from a charge or burden to which others are subjected.  (Florer v. Sheridan, 137 Ind. 28, 36 NE 365)

          b.            Tax amnesty applies only to past tax periods, hence of retroactive application (Castaneda, supra) WHILE tax exemption has prospective application.

          19.          Tax avoidance is the use of legally permissible means to reduce the tax while tax evasion is the use of illegal means to escape the payment of taxes.

         

          20.          Tax evasion connotes the integration of three factors:

          a.            The end to be achieved, i.e., the payment of less than that known by the taxpayer to be legally due, or the non-payment of tax when it is shown that a tax is due;           

          b.            an accompanying state of mind which is described as being “evil” on “bad faith,” “willful,” or ”deliberate and not accidental”; and

          c.            a course of action or failure of action which is unlawful.  (Commissioner of Internal Revenue v. The Estate of Benigno P. Toda, Jr., , etc., G. R. No. 147188, September 14, 2004)

          âââ21.              Tax avoidance distinguished from tax evasion.

          a.            Tax avoidance is legal while tax evasion is illegal.

          b.            The objective of tax avoidance in most instances is merely to reduce the tax that is due while is tax evasion the object is to entirely escape the payment of taxes.

          c.            Tax evasion warrants the imposition of civil, administrative and criminal penalties while tax avoidance does not.

         

         

          22.          Tax sparing is a provision in some tax treaties which provides that the state of residence allows as credit the amount that would have been paid, as if no reduction has been made. (Vogel, Klaus on Double Taxation Conventions, Third Edition, p.1255 cited in Segarra, Venice H, Tax Treaties: Trick or treat ?, Philippine Daily Inquirer, December 6, 2002, p. C5)

          There may be instances where a particular income is exempt from taxation in order to encourage foreign investments which may lead to economic development.  If the tax credit method is used, there would be no more tax to credit since there is no more tax to credit as a result of the tax exemption.  Consequently, when the tax method credit method is applied to these items of income, such incentives are siphoned off since, in effect, the tax benefits are cancelled out.  (Ibid.) Thus, the need for the tax sparing provision.

NATIONAL INTERNAL REVENUE CODE

ORGANIZATION AND FUNCTIONS OF THE BUREAU OF INTERNAL REVENUE

          1.            Rep. Act No. 1405, the Bank Deposits Secrecy Law prohibits inquiry into bank deposits.  As exceptions to Rep. Act No. 1405, the Commissioner of Internal Revenue is only authorized to inquire into the bank deposits of:

          a.            a decedent to determine his gross estate; and

          b.            any taxpayer who has filed an application for compromise of his tax liability by reason of financial incapacity to pay his tax liability.  [Sec. 5 (F), NIRC of 1997]

          c.            A taxpayer who authorizes the Commissioner to inquire into his bank deposits.

            2.         Purpose of the NIRC of 1997.  Revenue generation has undoubtedly been a major consideration in the passage of the Tax Code. (Commissioner of Internal Revenue v. Fortune Tobacco Corporation, G. R. Nos. 167274-75, July 21, 2008)                                                                                                                                                                                        3.                     Purpose of shift from ad valorem system to specific tax system in taxation of cigarettes.  The shift from the ad valorem system to the specific tax system is  likewise  meant  to  promote  fair  competition  among   the players  in  the industries concerned, to ensure an equitable distribution of the tax burden and to simplify tax administration by classifying cigarettes, among others, into high, medium and low-priced based on their net retail price and accordingly graduating tax rates.  (Commissioner of Internal Revenue v. Fortune Tobacco Corporation, G. R. Nos. 167274-75, July 21, 2008)

TAX ON INCOME

          1.            The Tax Code has included under the term “corporation” partnerships, no matter how created or organized, joint-stock companies, joint accounts (cuentas en participacion), associations, or insurance companies.  [Sec. 24 now Sec. 24 (B) of the NIRC of 1997]

          2.            In Evangelista v. Collector, 102 Phil. 140, the Supreme Court held citing Mertens that the term partnership includes a syndicate, group, pool, joint venture or other unincorporated organization, through or by means of which any business, financial operation, or venture is carried on. 

3.         Certain business organizations do not fall under the category of “corporations” under the Tax Code, and therefore not subject to tax as corporations, include:

a.         General professional partnerships;

b.         Joint venture or consortium formed for the purpose of  undertaking construction projects engaging in petroleum, coal, geothermal, and other energy operations, pursuant to an operation or consortium agreement under a service contract with the Government.  [1^st sentence, Sec. 22 (B), BIRC of 1997]

ââ 4.   Co-heirs who own inherited properties which produce income should not automatically be considered as partners of an unregistered corporation subject to income tax for the following reasons:

a.  The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.  There must be an unmistakable intention to form a partnership or joint venture.  (Obillos, Jr. v. Commissioner of Internal Revenue, 139 SCRA 436)

b.         There is no contribution or investment of additional capital to increase or expand the inherited properties, merely continuing the dedication of the property to the use to which it had been put by their forebears.  (Ibid.)

c.          Persons who contribute property or funds to a common enterprise and agree to share the gross returns of that enterprise in proportion to their contribution, but who severally retain the title to their respective contribution, are not thereby rendered partners.  They have no common stock capital, and no community of interest as principal proprietors in the business itself from which the proceeds were derived.  (Elements of the Law of Partnership by Floyd R. Mechem, 2^nd Ed., Sec. 83, p. 74 cited in Pascual v. Commissioner of Internal Revenue, 166 SCRA 560)

5.         The common ownership of property does not itself create a partnership between the owners, though they may use it for purpose of making gains, and they may, without becoming partners, are among themselves as to the management and use of such property and the application of the proceeds therefrom..  (Spurlock v,. Wilson, 142 S.W. 363, 160 No. App. 14, cited in Pascual v. Commissioner of Internal Revenue, 166 SCRA 560)

          6.            The income from the rental of the house, bought from the earnings of co-owned properties, shall be treated as  the income of an unregistered partnership to be taxable as a corporation because of the clear intention of the brothers to join together in a venture for making money out of rentals.

          7.            Income is gain derived and severed from capital, from labor or from both combined.  For example, to tax a stock dividend would be to tax a capital increase rather than the income. (Commissioner of Internal Revenue v. Court of Appeals, et al., G.R. No. 108576, January 20, 1999)

         

          8.            The term taxable income means the pertinent items of gross income specified in the Tax Code, less the deductions and/or personal and additional exemptions, if any, authorized for such types of income by the Tax Code or other special laws.  (Sec. 31, NIRC of 1997)

          9.            The cancellation and forgiveness of indebtedness may amount to (a) payment of income; (b) gift;  or to a (c) capital transaction depending upon the circumstances.

          10.          If an individual performs services for a creditor who, in consideration thereof, cancels the debt, it is income to the extent of the amount realized by the debtor as compensation for his services.

          11.          An insolvent debtor does not realize taxable income from the cancellation or forgiveness.  (Commissioner v. Simmons Gin Co., 43 Fd 327 CCA 10^th)

          12.          The insolvent debtor realizes income resulting from the cancellation or forgiveness of indebtedness when he becomes solvent.  (Lakeland Grocery Co., v. Commissioner 36 BTA (F) 289)

          13.          If a creditor merely desires to benefit a debtor and without any consideration therefor cancels the amount of the debt it is a gift from the creditor to the debtor and need not be included in the latter’s income.      

          14.           If a corporation to which a stockholder is indebted forgives the debt, the transaction has the effect of payment of a dividend.  (Sec. 50, Rev. Regs. No. 2)

                15.          Members of cooperatives not subject to tax on the interest earned from their deposits with the cooperative.   No less than our Constitution guarantees the protection of cooperatives.  Section 15, Article XII of the Constitution considers cooperatives as instruments for social justice and economic development. At the same time, Section 10 of Article II of the Constitution declares that it is a policy of the State to promote social justice in all phases of national development.  In relation thereto, Section 2 of Article XIII of the Constitution states that the promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.  Bearing in mind the foregoing provisions, we find that an interpretation exempting the members of cooperatives from the imposition of the final tax under Section 24(B)(1) of the NIRC (tax on interest earned by deposits)  is more in keeping with the letter and spirit of our Constitution.  (Dumaguete Cathedral Credit Coopertive [DCCC)] etc., v. Commissioner of Internal Revenue, G. R. No. 182722, January 22, 2010)
                In closing, cooperatives, including their members, deserve a preferential tax treatment because of the vital role they play in the attainment of economic development and social justice.  Thus, although taxes are the lifeblood of the government, the State’s power to tax must give way to foster the creation and growth of cooperatives.  To borrow the words of Justice Isagani A. Cruz: “The power of taxation, while indispensable, is not absolute and may be subordinated to the demands of social justice.”  (Ibid., citing Commissioner of Internal Revenue v. American Express International, Inc. (Philippine Branch), 500 Phil. 586 (2005).

          16.          The Global system of income taxation is a system employed where the tax system views indifferently the tax base and generally treats in common all categories of taxable income of the individual.  (Tan v. del Rosario, Jr., 237 SCRA 324, 331)

         

          17.  The Schedular system of income taxation is a system employed where the income tax treatment varies and is made to depend on the kind or category of taxable income of the taxpayer.  (Tan v. del Rosario, Jr., 237 SCRA 324, 331)

         

          18.  Under the National Internal Revenue Code the global system is applicable to taxable corporations and the schedular to individuals.

          19.          Compensation income is considered as having been earned in the place where the service was rendered and not considered as sourced from the place of origin of the money.

          20.          Payment for services, other than compensation income, is considered as having been earned at  the place where the activity or service was performed.

          21.          A non-resident alien, who has  stayed in the Philippines for an aggregate period of more than 180 days during any calendar year,  shall be considered as a non-resident alien doing business in the Philippines.  Consequently, he shall be subject to income tax on his income derived from sources from within the Philippines.  [Sec. 25 (A) (1), NIRC]

          He is allowed to avail of the itemized deductions including the personal and additional exemptions subject to the rule on reciprocity.

          ââ 22.    What are considered as de minimis benefits not subject to withholding tax on compensation income of both managerial and rank and file employees ?

          SUGGESTED ANSWER:

          a.            Monetized unused vacation leave credits of employees not exceeding ten (10) days during the year;

          b.            Medical cash allowance to dependents of employees not exceeding P750.00 per employee per semester or P125 per month;

          c.            Rice subsidy of P1,000.00 or one (1) sack of 50-kg. rice per month amounting to not more than P1,000.00;

          d.  Uniforms and clothing allowance not exceeding P3,000.00 per annum;

          e.  Actual yearly medical benefits not exceeding P10,000.00 per annum;

          f.             Laundry allowance not exceeding P300 per month;

          g.            Employees achievement awards, e.g. for length of service or safety achievement, which must be in the form of a tangible persona property other than cash or gift certificate, with an annual monetary value not exceeding P10,000.00 received by an employee under an established written plan which does not discriminate in favor of highly paid employees;

          h.            Gifts given during Christmas and major anniversary celebrations not exceeding P5,000 per employee per annum;

          i.             Flowers, fruits, books, or similar items given to employees under special circumstances, e.g. on account of illness, marriage, birth of a baby, etc.; and

          j.             Daily meal allowance for overtime work not exceeding twenty five percent (25%) of the basic minimum wage.

          The amount of de minimis  benefits conforming to the ceiling herein prescribed shall not be considered in determining the P30,000 ceiling of “other benefits” provided under Section 32 (B)(7)(e) of the Code.  However, if the employer pays more than the ceiling prescribed by these regulations, the excess shall be taxable to the employee receiving the benefits only if such excess is beyond the P30,000.00 ceiling, provided, further, that any amount given by the employer as benefits to its employees, whether classified as de minimis benefits or fringe benefits, shall constitute as deductible expense upon such employer.  [Sec. 2.78.1 (A) (3), Rev. Regs. 2-98 as amended by Rev. Regs. No. 8-2000]

          23.          Income subject to “final tax” refers to an income collected through the withholding tax system.  The payor of the income withholds the tax and remits it to the government as a final settlement of the income tax as a final settlement of the income tax due on said income.  The recipient is no longer required to include the income subjected to a final tax as part of his gross income in his income tax return.

          ââ 24.    Distinguish exclusions from deductions.

          SUGGESTED ANSWER:

          a.            Exclusions from gross income refer to a flow of wealth to the taxpayer which are not treated as part of gross income for purposes of computing the taxpayer’s taxable income, due to the following reasons:  (1)  It is exempted by the fundamental law;  (2)  It is exempted by statute; and (3)  It does not come within the definition of income  (Sec. 61, Rev. Regs. No. 2) WHILE deductions are the amounts which the law allows to be subtracted from gross income in order to arrive at net income.

          b.            Exclusions pertain to the computation of gross income WHILE deductions pertain to the computation of net income.

          c.            Exclusions are something received or earned by the taxpayer which do not form part of gross income WHILE deductions are something spent or paid in earning gross income.

          An example of an exclusion from gross income are life insurance proceeds, and an example of a deduction are losses.

          ââ 25.    What  are excluded from gross income ?

          SUGGESTED ANSWER:

          a.            Proceeds of life insurance policies paid to the heirs or beneficiaries upon the death of the insured whether in a single sum or otherwise.

          b.            Amounts received by the insured as a return of premiums paid by him under life insurance, endowment or annuity contracts either during the term, or at maturity of the term mentioned in the contract, or upon surrender of the contract.

          c.            Value of property acquired by gift, bequest, devise, or descent.

          d.  Amounts received, through accident or health insurance or Workmen’s Compensation Acts as compensation for personal injuries or sickness, plus the amounts of any damages received on whether by suit or agreement on account of such injuries or sickness.

          e.            Income of any kind to the extent required by any treaty obligation binding upon the Government of the Philippines.

          f.             Retirement benefits received under Republic Act No. 7641.  Retirement received from reasonable private benefit plan after compliance with certain conditions.  Amounts received for beyond control separation.  Foreign social security, retirement gratuities, pensions, etc.  USVA benefits, SSS benefits and GSIS benefits.

          âââ 26.             What are the conditions for excluding retirement benefits from gross income, hence tax-exempt ?

          SUGGESTED ANSWER:

          a.            Retirement benefits received under Republic Act No. 7641 and those received by officials and employees of private firms, whether individual or corporate, in accordance with the employer’s reasonable private benefit plan approved by the BIR.

          b.            Retiring official or employee

   1)         In the service of the same employer for at least ten (10) years;

   2)         Not less than fifty (50) years of age at time of retirement;

   3)         Availed of the benefit of exclusion only once.  [Sec. 32 (B) (6) (a), NIRC of 1997] The retiring official or employee should not have previously availed of the privilege under the retirement plan of the same or another employer.  [1^st par., Sec. 2.78 (B) (1), Rev. Regs. No. 2-98]

          ââ 27.    What kind of separation (retirement) pay is excluded from gross income, hence tax-exempt ?

          SUGGESTED ANSWER:

          a.            Any amount received by an official, employee or by his heirs,

          b.            From the employer

          c.            As a consequence of separation of such official or employee from the service of the employer because of

            1)         Death, sickness or other physical disability; or

            2)         For any cause beyond the control of said official or employee [Sec. 32 (B) (6) (b), NIRC of 1997], such as retrenchment, redundancy and cessation of business.  [1^st par., Sec. 2.78 (B), (1) (b), Rev. Regs. No. 2-98]

28.       What are the Itemized deductions from gross income and who may avail of them ?

a.  Ordinary and necessary trade, business or professional expenses.  

b.         The amount of interest paid or incurred within a taxable year on indebtedness in connection with the taxpayer’s profession, trade or business.

Resident citizens, resident alien individuals and nonresident alien individuals who are engaged in trade and business,  on their gross incomes other from compensation income are allowed to deduct these expenses.  Domestic corporations, estates and trusts may also deduct this expense.  Nonresident citizens and foreign corporations on their gross incomes from within may also deduct this expense.

Nonresident alien individuals not engaged in trade or business in the Philippines are not allowed to deduct this expense.

c.  Taxes paid or incurred within the taxable year in connection with the taxpayer’s profession.

Resident citizens, resident alien individuals and nonresident alien individuals who are engaged in trade and business,  on their gross incomes other from compensation income are allowed to deduct these expenses.  Domestic corporations, estates and trusts may also deduct this expense.  Nonresident citizens and foreign corporations on their gross incomes from within may also deduct this expense.

Nonresident alien individuals not engaged in trade or business in the Philippines are not allowed to deduct this expense.

âââ d.  Ordinary losses, losses from casualty, theft or embezzlement; and net operating losses.

Resident citizens, resident alien individuals and nonresident alien individuals who are engaged in trade and business,  on their gross incomes other from compensation income are allowed to deduct these expenses.  Domestic corporations, estates and trusts may also deduct this expense.  Nonresident citizens and foreign corporations on their gross incomes from within may also deduct this expense.

Nonresident alien individuals not engaged in trade or business in the Philippines are not allowed to deduct this expense.

âââ e.             Bad debts due to the taxpayer, actually ascertained to be worthless and charged off within the taxable year, connected with profession, trade or business, not sustained between related parties.

Resident citizens, resident alien individuals and nonresident alien individuals who are engaged in trade and business,  on their gross incomes other from compensation income are allowed to deduct these expenses.  Domestic corporations, estates and trusts may also deduct this expense.  Nonresident citizens and foreign corporations on their gross incomes from within may also deduct this expense.

Nonresident alien individuals not engaged in trade or business in the Philippines are not allowed to deduct this expense.

f.          Depreciation or a reasonable allowance for the exhaustion, wear and tear (including reasonable allowance for obsolescence) of property used in trade or business.

Resident citizens, resident alien individuals and nonresident alien individuals who are engaged in trade and business,  on their gross incomes other from compensation income are allowed to deduct these expenses.  Domestic corporations, estates and trusts may also deduct this expense.  Nonresident citizens and foreign corporations on their gross incomes from within may also deduct this expense.

Nonresident alien individuals not engaged in trade or business in the Philippines are not allowed to deduct this expense.

g.         Depletion or deduction arising from the exhaustion of a non-replaceable asset, usually a natural resource.

Resident citizens, resident alien individuals and nonresident alien individuals who are engaged in trade and business,  on their gross incomes other from compensation income are allowed to deduct these expenses.  Domestic corporations, estates and trusts may also deduct this expense.  Nonresident citizens and foreign corporations on their gross incomes from within may also deduct this expense.

Nonresident alien individuals not engaged in trade or business in the Philippines are not allowed to deduct this expense.

âââ h.  Charitable and other contributions. Resident citizens, resident alien individuals and nonresident alien individuals who are engaged in trade and business,  on their gross incomes other from compensation income are allowed to deduct these expenses.  Domestic corporations, estates and trusts may also deduct this expense.  Nonresident citizens and foreign corporations on their gross incomes from within may also deduct this expense.

Nonresident alien individuals not engaged in trade or business in the Philippines are not allowed to deduct this expense.

i.  Research and development expenditures treated as deferred expenses paid or incurred by the taxpayer in connection with his trade, business or profession, not deducted as expenses and chargeable to capital account but not chargeable to property of a character which is subject to depreciation or depletion.

Resident citizens, resident alien individuals and nonresident alien individuals who are engaged in trade and business,  on their gross incomes other from compensation income are allowed to deduct these expenses.  Domestic corporations, estates and trusts may also deduct this expense.  Nonresident citizens and foreign corporations on their gross incomes from within may also deduct this expense.

Nonresident alien individuals not engaged in trade or business in the Philippines are not allowed to deduct this expense.

j.  Contributions  to pension trusts. Resident citizens, resident alien individuals and nonresident alien individuals who are engaged in trade and business,  on their gross incomes other from compensation income are allowed to deduct these expenses.  Domestic corporations, estates and trusts may also deduct this expense.  Nonresident citizens and foreign corporations on their gross incomes from within may also deduct this expense.

Nonresident alien individuals not engaged in trade or business in the Philippines are not allowed to deduct this expense.

k.  Insurance premiums for health and hospitalization. Resident citizens, resident alien individuals and nonresident alien individuals who are engaged in trade and business,  on their gross incomes other from compensation income are allowed to deduct these expenses. Nonresident citizens and nonresident alien individual engaged in trade or business in the Philippine on their gross incomes from within may also deduct these premiums.

Nonresident alien individuals not engaged in trade or business in the Philippines are not allowed to deduct these premiums.

l.  Personal and additional exemptions. Resident citizens, and resident alien on their gross incomes and from compensation income are allowed to deduct these premiums. Nonresident citizens on their gross incomes from within may also deduct this expense.  Nonresident alien individuals engaged in trade or business in the Philippines are allowed to deduct these exemptions under reciprocity.

Nonresident alien individuals not engaged in trade or business in the Philippines are not allowed to deduct this expense.

ââ 29.  Distinguish ordinary expenses from capital expenditures. 

SUGGESTED ANSWER:  Ordinary expenses are those which are common to incur in the trade or business of the taxpayer WHILE capital expenditures are those incurred to improve assets and benefits for more than one taxable year.  Ordinary expenses are usually incurred during a taxable year and benefits such taxable year.  Necessary expenses are those which are appropriate or helpful to the business.

          ââ 30.    What are the requisites for the deductibility of  business expenses  ?

          SUGGESTED ANSWER:  The following are the requisites for deductibility of business expenses:

          a.            Compliance with the business test:

            1)         Must be ordinary and necessary;

            2)         Must be paid or incurred within the taxable           year;

            3)         Must be paid or incurred in carrying on a trade or business.

             4)         Must not be bribes, kickbacks or other illegal        expenditures

          b.  Compliance with the substantiation test.  Proof by evidence or records of the deductions allowed by law including compliance with the business test.

          ââ 31.    What are the requisites for the deductibility of ordinary and necessary trade, business, or professional expenses, like expenses paid for legal and auditing services ?

          SUGGESTED ANSWER:

          a.            the expense must be ordinary and necessary;

          b.            it must have been paid or incurred during the taxable year dependent upon the method of accounting upon the basis of which the net income is computed.

          c.            it must be supported by receipts, records or other pertinent papers.  (Commissioner of Internal Revenue v, Isabela cultural Corporation, G. R. No. 172231, February 12, 2007)

           âââ 32.            TMG Corporation is  issuing the accrual method of accounting.  In 2005 XYZ Law Firm and ABC Auditing Firm rendered various services which were billed by these firms only during the following year 2006.  Since the bills for legal and auditing services were received only in 2006 and paid in the same year, TMG deducted the same from its 2006  gross income.  The BIR disallowed the deduction ?

          Who is correct, TMG or BIR ?  Explain.

          SUGGESTED ANSWER:  The BIR is correct.  TMG should have deducted the  professional and legal fees in the year they were incurred in 2005 and not in 2006 because at the time the services were rendered in 2005, there was already an obligation to pay them.  (Commissioner of Internal Revenue v, Isabela Cultural Corporation, G. R. No. 172231, February 12, 2007)

          NOTES AND COMMENTS:

          a.            Accounting methods for tax purposes comprise a set of rules for determining when and how to report income and deductions.  (Commissioner of Internal Revenue v, Isabela cultural Corporation, G. R. No. 172231, February 12, 2007)

          The two (2) principal accounting methods for recognition of income are the (a) accrual method; and the (b)  cash method.

          b.            Recognition of income and expenses under the accrual method of accounting.   Amounts of income accrue where the right to receive them becomes fixed, where there is created an enforceable liability.  Liabilities, are incurred when fixed and determinable in nature without regard to indeterminacy merely of time of payment.. (Commissioner of Internal Revenue v, Isabela cultural Corporation, G. R. No. 172231, February 12, 2007)

          The accrual of income and expense is permitted when the all-events test has been met. (Ibid.)

          c.            All-events test.  This test requires:

            1)         fixing of a right to income or liability to pay; and

            2)         the availability of the reasonable accurate determination of such income or liability.

          The test does not demand that the amount of such income or liability be known absolutely, only that a taxpayer has at his disposal the information necessary to compute the amount with reasonable accuracy.

          The all-events test is satisfied where computation remains uncertain; if its basis is unchangeable, the test is  satisfied where a computation may be unknown, but is not as much as unknowable, within the taxable year.  The amount of liability does not have to be determined exactly,; it must be determined with “reasonable accuracy” implies something less than an exact or completely accurate amount.

          The propriety of an accrual must be judged by the fact that a taxpayer knew, or could reasonably be expected to have known, at the closing of its books for the taxable year.  Accrual method of accounting presents largely a question of fact; such that the taxpayer bears the burden of proof of establishing the accrual of an item of income or deduction. (Commissioner of Internal Revenue v, Isabela cultural Corporation, G. R. No. 172231, February 12, 2007)

d.         Under the cash method income is to be construed as income for tax purposes only upon actual receipt of the cash payment.  It is also referred to as the “cash receipts and disbursements method” because both the receipt and disbursements are considered.  Thus, income is recognized only upon actual receipt of the cash payment but no deductions are allowed from the cash income unless actually disbursed through an actual payment in cash. 

          33.   The fringe benefits tax is a final withholding tax imposed on the grossed-up monetary value of fringe benefits furnished, granted or paid by the employer to the employee, except rank and file employees.  [1^st par., Sec. 2.33 (A), Rev. Regs. No. 3-98]

          ââ 34.  What is meant by “fringe benefit” for purposes of taxation  ?

          SUGGESTED ANSWER:  For purposes of taxation, fringe benefit means any good, service, or other benefit furnished or granted in cash or in kind by an employer to an individual employee (except rank and file employees), such as but not limited to:

          a.            Housing;

          b.            Expense account;

          c.            Vehicle of any kind;

          d.            Household personnel, such as maid, driver and others;

          e.            Interest on loan at less than market rate to the extent of the difference between the market rate and actual rate granted;

          f.             Membership fees, dues and other expenses borne by the employer for the employee in social and athletic clubs or other similar organizations;

          g.            Expenses for foreign travel;

          h.            Holiday and vacation expenses;

          i.             Educational assistance to the employee or his dependents; and

          j.             Life or health insurance and other non-life insurance premiums or similar amounts in excess of what the law allows.  [Sec. 33 (B), NIRC of 1997; 1^st par., Sec. 2.33 (B), Rev. Regs. No. 3-98]

          35.          Fringe benefits that are not subject to the fringe benefits tax:

          a.            When the fringe benefit is required by the nature of, or necessary to the trade, business or profession of the employer; or

          b.            When the fringe benefit is for the convenience or advantage of the employer.  [Sec. 32(A), NIRC of 1997; 1^st par., Sec. 2.33 (A), Rev. Regs. No. 3-98]

          c.            Fringe benefits which are authorized and exempted from income tax under the Tax Code or under any special law;

          d.            Contributions of the employer for the benefit of the employee to retirement, insurance and hospitalization benefit plans;

          e.            Benefits given to the rank and file employees, whether granted under a collective bargaining agreement or not; and

          f.             De minimis benefits as defined in the rules and regulations to be promulgated by the Secretary of Finance upon recommendation of the Commissioner of Internal Revenue.  [1^st par., Sec. 32 (C), NIRC of 1997; Sec. 2.33 (C), Rev. Regs. No. 3-98]

           ââ36.  De minimis benefits are facilities and privileges (such as entertainment, medical services, or so-called “courtesy discounts” on purchases), furnished or offered by an employer to his employees.  They are not considered as compensation subject to income tax and consequently to withholding tax, if such facilities are offered or furnished by the employer merely as a means of promoting the health, goodwill, contentment, or efficiency of his employees.  [Sec. 2.78,1 (A) (3), Rev. Regs. 2-98 as amended by Rev. Regs. No. 8-2000]

          â 37. Preferred shares are considered capital regardless of the conditions under which such shares are issued and dividends or “interests” paid thereon are not allowed as deductions from the gross income of corporations.  (Revenue Memorandum Circular No. 17-71)

          âââ 38.  Bad debts are those which result from the worthlessness or uncollectibility, in whole or in part, of amounts due the taxpayer by others, arising from money lent or from uncollectible amounts of income from goods sold or services rendered.  (Sec. 2.a, Rev. Regs. 5-99)

          ââ 39.    Who are related parties ?

          SUGGESTED ANSWER:  The following are related parties:

          a.            Members of the same family.  The family of an individual shall include only his brothers and sisters (whether by the whole or half-blood), spouse, ancestors, and lineal descendants;

          b.            An individual and a corporation more than fifty percent (50%) in value of the outstanding stock of which is owned, directly or indirectly, by or for such individual;

          c.            Two corporations more than fifty percent (50%) in value of the outstanding stock of which is owned, directly or indirectly, by or for the same individual;

          d.            A grantor and a fiduciary of any trust; or

          e.            The fiduciary of a trust and the fiduciary of another trust if the same person is a grantor with respect to each trust; or

          f.             A fiduciary of a trust and a beneficiary of such.  [Sec. 36 (B), NIRC of 1997]

          ââ 40.  What are the requisites for valid deduction of bad debts from gross income ?

          SUGGESTED ANSWER:

          a.  There must be an existing indebtedness due to the taxpayer which must be valid and legally demandable;

          b.  The same must be connected with the taxpayer’s trade, business or practice of profession;

           c.  The same must not be sustained in a transaction entered into between related parties;

          d.  The same must be actually charged off the books of accounts of the taxpayer as of the end of the taxable year; and

          e.  The   debt   must   be   actually  ascertained to be worthless and uncollectible during the taxable year;

          f. The debts  are  uncollectible despite diligent effort exerted by the taxpayer.  [Sec. 34 (E) (1), NIRC of 1997; Sec. 3, Rev. Regs. No. 5-99 reiterated in Rev. Regs. No. 25-2002; Philippine Refining Corporation v. Court of Appeals, et al., 256 SCRA 667]

          g.  Must have been reported as receivables in the income tax return of the current or prior years.  (Sec. 103, Rev. Regs. No. 2)

:

          ââ 41.  What is the “tax benefit” rule ?

          SUGGESTED ANSWER:  The “tax benefit rule” posits that the recovery of bad debts previously allowed as deduction in the preceding year or years shall be included as part of the taxpayer’s gross income in the year of such recovery to the extent of the income tax benefit of said deduction.

          NOTES AND COMMENTS:

          a.            If in the year the taxpayer claimed deduction of bad debts written-off, he realized a reduction of the income tax due from him on account of the said deduction, his subsequent recovery thereof from his debtor shall be treated as a receipt of realized taxable income. (Sec. 4, Rev. Regs. 5-99)

          b.            If the said taxpayer did not benefit from the deduction of the said bad debt written-off because it did not result to any reduction of his income tax in the year of such deduction (i.e. where the result of his business operation was a net loss even without deduction of the bad debts written-off), then his subsequent recovery thereof shall be treated as a mere recovery or a return of capital, hence, not treated as receipt of realized taxable income.  (Sec. 4, Rev. Regs. 5-99)

          42.          Depreciation is the gradual diminution in the useful value of tangible property resulting from ordinary wear and tear and from normal obsolescence.  The term is also applied to amortization of the value of intangible assets the use of which in the trade or business is definitely limited in duration.

          43.          The methods of depreciation are the following:

          a.            Straight line method;

          b.            Declining balance method;

          c.            Sum of years digits method; and

          d.            Any other method prescribed by the Secretary of Finance upon the recommendation of the Commissioner of Internal Revenue:

            1)         Apportionment to units of production;

            2)         Hours of productive use;

            3)         Revaluation method; and

            4)         Sinking fund method.

          44.          What are personal and additional exemptions ?

          SUGGESTED ANSWER:  These are the theoretical persona, living and family expenses of an individual allowed to be deducted from the gross or net income of an individual taxpayer. 

          These are arbitrary amounts which have been calculated by our lawmakers to be roughly equivalent to the minimum of subsistence, taking into account the personal status and additional qualified dependents of the taxpayer.  They are fixed amounts in the sense that the amounts have been predetermined by our lawmakers and until our lawmakers make new adjustments on these personal exemptions, the amounts allowed to be deducted by a taxpayer are fixed as predetermined by Congress.  [Pansacola v. Commissioner of Internal Revenue, G. R. No. 159991, November 16, 2006 citing Madrigal and Paterno v. Rafferty and Concepcion, 38 Phil. 414, 418 (1918)]

          ââ45.   What is the amount allowed as basic personal exemption ?

          SUGGESTED ANSWER:  There shall be allowed a basic personal exemption amounting to Fifty thousand pesos (P50,000) for each individual taxpayer.

          In the case of married individuals where only one of the spouse is deriving gross income, only such spouse shall be allowed the personal exemption.  [Sec. 35 (A), NIRC of 1997 as amended by Rep. Act No. 9504; Sec. 2.79 (I) (1) (a), Rev. Regs. No. 2-98 as amended by Rev. Regs. No. 10-2008]

          NOTES AND COMMENTS:  It is clear from Rep. Act No. 9504 that each of the spouses may claim the P50,000.00.  Thus, the total familial basic personal exemption for spouses is P100,000.00.

          Furthermore, the distinctions between the concepts of single, married and head of the family for purpose of availing of the basic personal exemption has already been eliminated by Rep. Act No. 9504.

          ââ45.   What are the amounts of additional exemptions ?

          SUGGESTED ANSWER:    “An individual,

          a.            whether single or married,

          b.            shall be allowed an additional exemption of Twenty-Five Thousand Pesos (P25,000.00)

          c.            for each qualified dependent child,

          d.            provided that the total number of dependents for which additional exemptions may be claimed

            1)         shall not exceed four (4) dependents.”  [1^st par., Sec. 2.79 (I) (1) (b), Rev. Regs. No. 2-98 as amended by Rev. Regs. No. 10-2008, arrangement and numbering supplied; Sec. 35 (B), NIRC of 1997 as amended by Rep. Act No. 9504]

          NOTES AND COMMENTS: 

          a.            It is clear that under the amendment, single individuals may now claim for the additional exemptions.  Furthermore, the concept of head of a family does not find application anymore.

          b.            “A dependent means

          a.            a legitimate, illegitimate or legally adopted child

          b.            chiefly dependent upon and living with the taxpayer

          c.            if such dependent is

            1)         not more than twenty-one (21) years of age,

            2)         unmarried and

            3)         not gainfully employed or

          d.            if such dependent,

            1)         regardless of age

            2)         is incapable of self-support

            3)         because of mental or physical defect.”   [2^nd  par., Sec. 2.79 (I) (1) (b), Rev. Regs. No. 2-98 as amended by Rev. Regs. No. 10-2008, arrangement and numbering supplied; Sec. 35 (b), NIRC of 1997, as amended by Rep. Act No. 9504]

          c.            It is to be noted that under the NIRC of 1997, as amended by Rep. Act No. 9504, only qualified dependent children are considered for additional exemptions.  Grandparents, parents, as well, as brothers or sisters, and other collateral relatives are not qualified dependents to be claimed as additional exemptions.

          However, if they are senior citizens they may qualify as additional exemptions under the “Senior Citizens Law” but not under the NIRC of 1997, as amended by Rep. Act No. 9504.

          Senior citizen shall be treated as dependents provided for in the National Internal Revenue Code, as amended, and as such, individual taxpayers caring for them, be they relatives or not shall be accorded the privileges granted by the Code insofar as having dependents are concerned. [last par. Sec. 5 (a), Rep. Act No. 7432, as amended by Rep. Act 9257, “The Expanded Senior Citizens Act of 2003”]

          ââ47.  Capital assets shall refer to all real properties held by a taxpayer, whether or not connected with his trade or business, and which are not included among the real properties considered as ordinary assets.  (Sec. 2.a, Rev. Regs. No. 7-2003)

          The term “capital assets” means property held by the taxpayer (whether or not connected with his trade or business), BUT DOES NOT INCLUDE:

          a.  Stock in trade of the taxpayer, or

          b.  Other  property  of  a kind which would properly be  included in the inventory of the taxpayer if on hand at the close of the taxable year, or

          c.   Property  held  by  the taxpayer primarily for sale to customers in the ordinary course of his trade or business, or

d.  Property used in the trade or business, of a character which is subject to the allowance for depreciation; or real property used in the trade or business of the taxpayer. [Sec. 39 (A) (1), NIRC of 1997, capitalized words, numbering and arrangement supplied; Sec. 2.a, Rev. Regs. No. 7-2003]

     

          ââ48.     Examples of capital assets:

          a.            Stock and securities held by taxpayers other than dealers in securities;

          b.            Jewelry not used for trade and business;

          c.            Residential houses and lands owned and used as such;

          d.            Automobiles not used in trade and business;

          e.            Paintings, sculptures, stamp collections, objects of arts which are not used in trade or business;

f.          Inherited large tracts of agricultural land which were subdivided pursuant to the government mandate under land reform, then sold to tenants.  (Roxas v. Court of Tax Appeals, etc. L-25043, April 26, 1968)

g.         “Real property used by an exempt corporation in its exempt operations, such as a corporation included in the enumeration of Section 30 of the Code, shall not be considered used for business purposes, and therefore considered as capital asset.”  (last sentence, 3^rd par., Sec. 3.b, Rev. Regs. No. 7-2003)

h.         “Real property, whether single detached, townhouse, or condominium unit, not used in trade or business as evidenced by a certification from the Barangay Chairman or from the head of administration, in case of condominium unit, townhouse or apartment, and as validated from the existing available records of the Bureau of Internal Revenue, owned by an individual engaged in business, shall be treated as capital asset.”  (last par., Sec. 3.b., Rev. Regs. No. 7-2003)

          ââ49. Ordinary assets shall refer to all real properties specifically excluded from the definition of capital assets, namely:  

          a.  Stock in trade of a taxpayer or other real property of a kind which would properly be included in the inventory of a taxpayer if on hand at the close of the taxable year; or

          b.  Real property  held  by  the taxpayer primarily for sale to customers in the ordinary course of his trade or business; or

          c.  Real property used in trade or business (i.e. buildings and/or improvements), of a character which is subject to the allowance for depreciation; or

          d.  Real property used in  trade or business of the taxpayer. (Sec. 2. b, Rev. Regs. No. 7-2003)

          ââ 50..  Examples of ordinary assets hence not capital assets:

          a.            The machinery and equipment of a manufacturing concern subject to depreciation;

          b.  The tractors, trailers and trucks of a hauling company;

          c.  The condominium building owned by a  realty company the units of which are for rent or for sale;

          d.            The wood, paint, varnish, nails, glue, etc. which are the raw materials of a furniture factory;

          e.            Inherited parcels of land of substantial areas located in the heart of Metro Manila, which were subdivided into smaller lots then sold on installment basis after introducing comparatively valuable  improvements not for the purpose of simply liquidating the estate but to make them more saleable ; the employment of an attorney-in-fact for the purpose of developing, managing, administering and selling the lots; sales made with frequency and continuity; annual sales income from the sales was considerable; and the heir was not a stranger to the real estate business.  (Tuazon, Jr.  v. Lingad, 58 SCRA 170)

f.  Inherited agricultural property improved by introduction of good roads, concrete gutters, drainage and lighting systems converts the property to an ordinary asset.  The property forms part of the stock in trade of the owner, hence an ordinary asset.  This is so, as the owner is now engaged in the business of subdividing real estate. (Calasanz v. Commissioner of Internal Revenue, 144 SCRA  at p. 672)

          ââ51.  Tax treatment of real properties that have been transferred.  Real properties classified as capital or ordinary asset in the hands of the seller/transferor may change their character in the hands of the buyer/transferee.  The classification of such property in the hands of the buyer/transferee shall be determined in accordance with the following rules:

a.  Real property transferred through succession or donation to the heir or donee who is not engaged in the real estate business with respect to the real property inherited or donated, and who does not subsequently use such property in trade or business, shall be considered as a capital asset in the hands of the heir or donee.

b.  Real property received as dividend by stockholders who are not engaged in the real estate business and who not subsequently use such real property in trade or business shall be treated as capital assets in the hands of the recipient even if the corporation which declared the real property dividend is engaged in real estate business.

c.  The real property received in an exchange shall be treated as ordinary asset in the hands of the transferee in the case of a tax-free exchange by taxpayer not engaged in real estate business to a taxpayer who is engaged in real estate business, or to a taxpayer who, even if not engaged in real estate business, will use in business the property received in the exchange.  (Sec. 3.f., Rev. Regs. No. 7-2003)

          ââ 52.  The tax is “imposed upon capital gains presumed to have been realized from the sale, exchange, or other disposition of real property located in the Philippines, classified as capital assets.”  [Sec. 24 (D) (1`), NIRC of 1997]  Revenue Regulations No. 7-2003 has defined real property as having “the same meaning attributed to that term under Article 415 of Republic Act No. 386, otherwise known as the ‘Civil Code of the Philippines.’  (Sec. 2.c, Rev. Regs. No. 7-2003) 

          ââ 53.  Transactions covered by the presumed capital gains tax on real property:

             a.         sale,

             b.         exchange,

             c.          or other disposition, including pacto de retro sales and other forms  of  conditional  sales.  [Sec. 24  (D) (1), NIRC of 1997, numbering and arrangement supplied]

          d. “          Sale, exchange, or other disposition” includes taking by the government through condemnation proceedings. (Gutierrez v. Court of Tax Appeals, et al., 101 Phil. 713; Gonzales v. Court of Tax Appeals, et al., 121 Phil. 861)

            

          54.          In case the mortgagor exercises his right of redemption within one (1) year from the issuance of the certificate of sale, in a foreclosure of mortgage sale of real property, no capital gains tax shall be imposed because no capital gains has been derived by the mortgagor and no sale or transfer of real property was realized. [Sec. 3 (1), Rev. Regs. No. 4-99]

          55.  In case of non-redemption of the property sold upon a foreclosure of mortgage sale, the presumed capital gains tax shall be imposed, based on the bid price of the highest bidder but only upon the expiration of the one year period of redemption provided for under Sec. 6 of Act No. 3135, as amended by Act No. 4118, and shall be paid within thirty (30) days from the expiration of the said one-year redemption period.  [Sec. 3 (2), Rev. Regs. No. 4-99]

          ââ 56.  The basis for the final presumed capital gains tax of six per cent (6%) is whichever is the higher of the

          a.  gross selling price, or

          b.   the current fair market value as determined below:

           1)  the fair market value or real properties located in each zone or area as determined by the Commissioner of Internal Revenue after consultation with competent appraisers both from the private and public sectors; or

2)  the fair market value as shown in the schedule of values of the Provincial and City Assessors.  [Sec. 24 (D) (1) in relation to Sec. 6 (E), both of the NIRC of 1997]

            It does not matter whether there was an actual gain or loss because the tax is a “presumed” capital gains tax.  It is the transaction that is taxed not the gain.      

          57.  Holding period not applied to the taxation of the presumed capital gains derived from the sale of real property considered as capital assets.      

          ââ 58.  The tax liability, of individual taxpayers (not corporate), if any, on gains from sales or other dispositions of real property, classified as capital assets, to the government or any of its political subdivisions or agencies or to government owned or controlled corporations shall be determined, at the option of the taxpayer, by including the proceeds as part of gross income to be subjected to the allowable deductions and/or personal and additional exemptions, then to the schedular tax [Sec. 24 (D) (1), in relation to Sec. 24 (A) (1), both of the NIRC of 1997] or the final presumed capital gains tax of six percent (6%). [Sec. 24  (D)  (1) in relation to Sec. 6 (E), both of the NIRC of 1997]

         

          59.  The seller of the real property, classified as a capital asset, pays the presumed capital gains tax whether:

          a.  an individual [Sec. 24 (D) (1), NIRC of 1997];

             1)  Citizen, whether resident or not [Ibid.];

                        2)  Resident alien [Ibid.];

            3)  Nonresident alien engaged in trade or business in the Philippines [Sec. 25 (A) (3) in relation to Sec. 24 (D) (1), both of the NIRC of 1997];

           4)  Nonresident alien not engaged in trade or business in the Philippines [Sec. 25 (B) in relation to Sec. 24 (D) (1), both of the NIRC of 1997];

          b.  an estate or trust (Ibid.);

          c.  a domestic corporation. [Sec. 27 (D) (5), NIRC of 1997]

         

          ââ 60.  Excepted from the payment of the presumed capital gains tax are those presumed to have been realized from the disposition by natural persons of their principal place of residence

          a.            the proceeds of which is fully utilized in acquiring or constructing a new principal residence;

          b.            within eighteen (18) calendar months from the date of sale or disposition

          c.            the BIR Commissioner shall have been duly notified by the taxpayer within thirty (30) days from the date of sale or disposition through a prescribed return of his intention to avail of the tax exemption; and

          d.            the said tax exemption can only be availed of once every ten (10) years.  [Sec. 24 (D) (2), NIRC of 1997]

          61.          MBC was incorporated in 1961 and engaged in commercial banking operations since 1987.  On May 22, 1987, it ceased operations that year by reason of insolvency and its assets and liabilities were placed under the charge of a government-appointed receiver.  On June 23, 1999, the BSP authorized MBC to operate as a thrift bank.

          In 2000, It filed its tax return for the year 1999 paying the amount of P33 million computed in accordance with the minimum corporate income tax (MCIT).  It sought the BIR’s ruling on whether it is entitled to the four (4) year grace period for paying on the basis of MCIT reckoned from 1999.  BIR then ruled that cessation of business activities as a result of being placed under involuntary receivership may be an economic reason for suspending the imposition of the MCIT.

          As a result of the ruling MBC filed an application for refund of the P33 million.  Due to the BIR’s inaction, MBC filed a petition for review with the CTA.

          The CTA denied the petition on the ground that MBC is not a newly organized corporation.  In a volte facie the BIR now maintains that MBC should pay the MCIT beginning January 1, 1998 as it did not close its business operations in 1987 but merely suspended the same.  Even if placed under receivership, the corporate existence was never affected.  Thus, it falls under the category of an existing corporation recommencing its banking operations.

          Should the refund be granted ?

          SUGGESTED ANSWER:  Yes.  The MCIT shall be imposed beginning in the fourth taxable year immediately following the year in which the corporation commenced its business operations.  [Sec. 27 (E) (1), NIRC of 1997]

          The date of commencement of operations of a thrift bank is the date it was registered with the SEC or the date when the Certificate of Authority to Operate was issued to it by the Monetary Board, whichever comes later.  (Sec. 6, Rev. Regs. No. 4-95)

          Clearly then. MBC is entitled to the grace period of four years from June 23, 1999 when it was authorized by the BSP to operate as a thrift bank before the MCIT should be applied to it.  (Manila Banking Corporation v. Commissioner of Internal Revenue, G. R. No. 168118, August 26, 2006)

          NOTES AND COMMENTS:

          a.            The MCIT and when should be imposed and the four (4) year grace period.  “A minimum corporate income tax of two percent (2%) of the gross income as of the end of the taxable year, as defined herein, is hereby imposed on a corporation taxable under this Title, beginning on the fourth taxable year immediately following the year in which such corporation commenced its business operations, when the minimum corporate income tax is greater than the tax computed under Subsection (A) of this section for the taxable year.”  [Sec. 27 (E) (1), NIRC of 1997]

          b.            Period when a corporation becomes subject to the MCIT.  “(5) Specific rules for determining the period when a corporation becomes subject to the MCIT  (minimum corporate income tax) -

          For purposes of the MCIT, the taxable year in which business operations commenced shall be the year in which the domestic corporation registered with the Bureau of Internal Revenue (BIR).

          Firms which were registered with BIR in 1994 and earlier years shall be covered by the MCIT beginning January 1, 1998. x x x”  (Rev. Regs. No. 9-98)

          Manila Banking Corporation v. Commissioner of Internal Revenue, G. R. No. 168118, August 26, 2006 did not apply Rev. Regs. No. 9-98 because Rev. Regs. No. 4-95 specifically refers to thrift banks.)

          c.            Purpose of the four (4) year grace period.  The intent of Congress relative to the MCIT is to grant a four (43) – year suspension of tax payment to newly organized corporations.  Corporations still starting their business operations have to stabilize their venture in order to obtain a stronghold in the industry. It does not come as a surprise then when many companies reported losses in their initial years of operations.

          Thus, in order to allow new corporations to grow and develop at the initial stages of their operations, the lawmaking body saw the need to provide a grace period of four years from their registration before they pay their minimum corporate income tax.  (Manila Banking Corporation v. Commissioner of Internal Revenue, G. R. No. 168118, August 26, 2006)

ESTATE TAXES

            ââ1.  In  determining  the  gross  estate  of  a decedent, are his properties abroad to be included, and more particularly, what constitutes gross estate ? 

            SUGGESTED ANSWER:  Yes, if the decedent is a Filipino citizen or a resident alien.

            The gross estate of a Filipino citizen or a resident alien comprises all his real property, wherever situated; all his personal property, tangible, intangible or mixed, wherever situated, to the extent of his interest existing therein at the time of his death.

        The gross estate of a non-resident alien comprises all his real property, situated in the Philippines; all his personal property, tangible, intangible or mixed, situated in the Philippines, to the extent of his interest existing therein at the time of his death.

      ââ 2.         William Smith,   an   American  citizen,  was   a permanent  resident of the Philippines.  He died in San Francisco,  California.  He left 10,000 shares of San Miguel Corporation, a condominium  unit  at  the  Twin Towers Building at Pasig, Metro  Manila  and  a  house  and  lot  in  Miami, Florida.

      What  assets shall be included in the Estate Tax Return to be filed with the BIR ? 

      SUGGESTED ANSWER: All of the assets should be included in the Estate Tax Return to be filed with the BIR.

      Smith, an American citizen and a permanent resident of the Philippines is considered, for Philippine estate tax purposes, a resident alien.  Consequently, the assets to be included in the Estate Tax Return to be filed with the BIR should be all property, real or personal, tangible, intangible or mixed, wherever situated, to the extent of the interest that Smith has at the time of his death.  Thus, all of the properties enumerated in the problem irrespective of where they are  situated are includible in the gross estate of Smith.

            ââ 3. Proceeds of life insurance includible in a decedent’s gross estate. 

            a.         The decedent takes the insurance policy on his own life

                        1)  The amounts are receivable by

                                    a)         the decedent’s estate,

                                    b)         his executor, or

                                    c)         administrator irrespective of whether or not the    insured retained the power of   revocation, OR

                        2)         The amounts are receivable by any beneficiary                             designated in the policy of insurance as revocable beneficiary.                                    [Sec. 85 (E), NIRC of 1997]

            b.         One, other than the decedent takes the insurance policy on the life of the decedent

                        1)         The amounts are receivable by

                                    a)         the decedent’s estate,

                                    b)         his executor, or

                                    c)         administrator

                        2)         irrespective of whether or not the insured  retained the                 power of revocation.

            ââ 4. Proceeds of life insurance NOT included in a decedent’s gross estate.

            a.         The decedent takes the insurance policy on his own life, and

            b.         the proceeds are receivable by a beneficiary designated as irrevocable.  [Sec. 85 (E),  NIRC of 1997)

         NOTES AND COMMENTS:  The beneficiary must not be the decedent’s estate, executor or administrator, because the proceeds are includible as part of gross estate whether or not the decedent retained the power of revocation. (Ibid.)

         c.             Where the insurance was NOT taken by the decedent upon his own life and the beneficiary is not the decedent’s estate, his executor or administrator.

          4.            Items deductible from the gross estate of a resident or nonresident Filipino decedent or resident alien decedent:

          a.            Expenses, losses, claims, indebtedness and taxes;

          b.            Property previously taxed; 

          c.            Transfers for public use;

          d.            The Family Home up to a value not exceeding P1 million;

          e.            Standard deduction of P1 million;

          f.             Medical expenses not exceeding P500,000.00;

          g.            Amount of exempt retirement received by the heirs under Rep. Act Mo. 4917;

          h.            Net share of the surviving spouse in the conjugal partnership.

          5.            There is no transfer in contemplation of death if there is no showing  that the transferor  “retained for his life or for any period which does not in fact end before his death:  (1)  the possession or enjoyment of, or the right to the income from the property, or (2)  the right, either alone or in conjunction with any person, to designate the person who shall possess or enjoy the property or the income therefrom.”  [Sec. 85 (B), NIRC of 1997]

            ââ 6.  Vanishing deduction (deduction for property previously taxed), defined. The  deduction  allowed  from  the  gross  estates  of citizens, resident aliens and nonresident estates for properties which were previously subject to donor’s or estate taxes.  The deduction is called a vanishing deduction because the deduction allowed diminishes over a period of five (5) years. 

       It is also known as a deduction for property  previously taxed.

            ââ 7. Vanishing deduction (property previously taxed) allowed as a deduction from the gross estate of a Filipino citizen, whether resident or not, of a resident alien decedent, or of a nonresident alien decedent.

            a.         An amount equal to the value specified below of

            b.         Any   property  forming a part of the gross estate situated in the Philippines

            c           Of  any  person  who  died within five years prior to the death of the decedent, or transferred to the decedent by gift within five years prior to his death,

            d.         Where  such property can be identified as having been received by the decedent from the donor by gift, or from such prior decedent by gift, bequest, devise, or inheritance, or

            e.         Which can be identified as having been acquired in exchange for property so received:

      100% of the value if the prior decedent died within one year prior to the death of the decedent, or if the property was transferred to him by gift within the same period prior to his death;

      80% of the value if the prior decedent died more than one year but not more than two years prior to the death of the decedent, or if the property was transferred to him by gift within the same period prior to his death;

      60% of the value if the prior decedent died more than two years but not more than three years prior to the death of the decedent, or if the property was transferred to him by gift within the same period prior to his death;

      40% of the value if the prior decedent died more than three years but not more than four years prior to the death of the decedent, or if the property was transferred to him by gift within the same period prior to his death; and

      20% of the value if the prior decedent died more than four years but not more than five years prior to the death of the decedent, or if the property was transferred to him by gift within the same period prior to his death.  [Sec. 86 (A) (2) and (B) (2), NIRC of 1997, numbering, arrangement and underlining supplied]

          ââ 8.      The approval of the court sitting in probate, or as a settlement tribunal over the estate of the deceased is not a mandatory requirement for the collection of the estate.  The probate court is determining issues which are not against the property of the decedent, or a claim against the estate as such, but is against the interest or property right which the heir, legatee, devisee, etc. has in the property formerly held by the decedent.

          The notices of levy were regularly issued within the prescriptive period.

          The tax assessment having become final, executory and enforceable, the same can no longer be contested by means of a disguised protest.  (Marcos, II v. Court of Appeals, et al.,  273 SCRA 47)

DONOR’S TAXES

          ââ 1.      What is the donor’s tax rate if the donee is a stranger ?

          SUGGESTED ANSWER:      When the donee or beneficiary is a stranger, the tax payable by the donor shall be 30% of the net gifts. 

          ââ 2.      For purposes of the donor’s tax who is a stranger ?

          SUGGESTED ANSWER:  A stranger is a  is person who is not a:

          a.            Brother, sister (whether by whole or half-blood), spouse, ancestor and lineal descendant; or

          b.            Relative by consanguinity in the collateral line within the fourth degree of relationship.”  [Sec. 99 (B), NIRC of 1997]

          NOTES AND COMMENTS:  All relatives by affinity, irrespective of the degree, are considered as strangers.

          3.            What is the tax base for donations ?

          SUGGESTED ANSWER:  The net gifts made during the calendar year. [Sec. 99 (A), NIRC of 1997]

          4.            For purposes of the donor’s tax, what is meant by “net gifts ?”

            SUGGESTED ANSWER:  The net economic benefit from the transfer that accrues to the donee.  Accordingly, if a mortgaged property is transferred as a gift, but imposing upon the donee the obligation to pay the mortgage liability, then the net gift is measured by deducting from the fair market value of the property the amount of the mortgage assumed.  (last par., Sec. 11, Rev. Regs.No.2-2003)

          5.            How are gifts of personal property to be valued for donor’s tax purposes ?

          SUGGESTED ANSWER:  The market value of the personal property at the time of the gift shall be considered the amount of the gift.  (Sec. 102, NIRC of 1997)

          6.            What is the valuation of donated real property for donor’s tax purposes ?

          SUGGESTED ANSWER:  The real property shall be appraised at its fair market value as of the time of the gift. 

          However, the appraised value of the real property at the time of the gift shall be whichever is the higher of:

          a.            the fair market value as determined by the Commissioner of Internal Revenue (zonal valuation) or

          b.            the fair market value as shown in the schedule of values fixed by the Provincial and City Assessors.  [Sec. 102, in relation to Sec. 88 (B) both of the NIRC of 1997]

          â 7.        A died leaving as his only heirs, his surviving spouse B, and three minor children, X, Y and Z.  Since B does not want to participate in the distribution of the estate, she renounced her hereditary share in the estate.

          a.            Is the renunciation subject to donor’s tax ?  Explain.

            SUGGESTED ANSWER:  No.  The general renunciation by an heir, including the surviving spouse, as in the case B, of her share in the hereditary estate left by the decedent is not subject to donor’s tax. (4^th par., Sec. 11, Rev. Regs. No. 2-2003)

            This is so because the general renunciation by B was not specifically and categorically done in favor of identified heir/s to the exclusion or disadvantage of the other co-heirs in the hereditary estate. 

            b.         Supposing that instead of a general renunciation, B renounced her hereditary share in A’s estate to X who is a special child, would your answer be the same ?  Explain.

            SUGGESTED ANSWER:  My answer would be different.  The renunciation in favor of X would be subject to donor’s tax.

            This is so because the renunciation was specifically and categorically done in favor of X and identified heir to the exclusion or disadvantage of Y and Z, the other co-heirs in the hereditary estate.  (4^th par., Sec. 11, Rev. Regs. No. 2-2003)

          âââ 8.   Give some donations that are exempt from donor’s tax.

          SUGGESTED ANSWER:

          a.            The first P100,000.00 net donation during a calendar year is exempt from donor’s tax [Sec. 99 (A), NIRC of 1997] made by a resident or non resident;

          b.            The donation by a resident or non-resident of a prize to an athlete in an international sports tournament held abroad and sanctioned by the national sports association is exempt from donor’s tax  (Sec. 1, Rep. Act No. 7549)

          c.            Political contributions made by a resident or non-resident individual  if registered with the COMELEC irrespective of whether donated to a political party or individual.

            However, the Corporation Code prohibits corporations from making political contributions. (Corp. Code, Title IV, Sec. 36.9)

         d.            Dowries  or  gifts  made  on account of marriage and before its celebration or within one year thereafter by residents who are parents to each of their legitimate, recognized natural, or adopted children to the extent of the first ten thousand pesos (P10,000.00);

        e.             Gifts made by residents or non-residents to or for the use of the National  Government or any entity created by any of its agencies which is not conducted for profit, or to any political subdivisions of the said Government;

          f.            Gifts made by residents or non residents in favor of an educational and/or charitable, religious, cultural or social welfare corporation, institution, foundation, trust or philanthropic organization or research institution or organization:  Provided, however, That not more than thirty percent (30%) of said gifts shall be used by such donee for administration purposes. [Sec. 101 (A), NIRC of 1997, numbering and arrangement supplied]

          g.            Gifts made by non-resident aliens outside of the Philippines to Philippine residents are exempt from donor’s taxes because taxation is basically territorial.  The transaction, which should have been subject to tax was made by non-resident aliens and took place outside of the Philippines.

          ââ 9.  What is the concept of donation or gift splitting ?  Illustrate.

            SUGGESTED ANSWER:  Donation or gift splitting  is spreading the gift over numerous calendar years in order to avail of lower donor’s taxes.

            In 2008 Leon was thinking of donating a P200,000.00 to Miklos, his first cousin. The P200,000.00 is the totality of the net gifts for 2008.   If  he  donated  the  P200,000.00  in 2008 the first P100,000 would be exempt and the remaining P50,000.00 would be subject to donor’s tax  

            If Leon spreads the P200,000 donation over two (2) calendar years, donating P100,000.00 on December 30, 2008 and the remaining P100,000.00 on January 1, 2009 the transaction would be exempt from  donor’s tax.  This is so even if the donation is separated only by two days because the basis is the calendar year.  Leon would be enjoying the exemption for the first P100,000.00 net gifts for each calendar year.

            ââ10.       A, who is engaged in the car “buy and sell” business  sold to B  P7 million Jaguar for only P4 million.  The proper VAT on the sale was paid.  If you are the BIR examiner assigned to review the sale, would you issue a tax assessment on the transaction ? Explain your answer briefly.  

            SUGGESTED ANSWER:  Donor’s taxes would be due on the insufficiency of consideration. 

            Where property, other than real property that has been subjected to the final capital gains tax, is transferred for less than an adequate and full consideration in money or money’s worth, then the amount by which the fair market value of the property at the time of the execution of the Contract to Sell or execution of the Deed of Sale which is not preceded by a Contract to Sell exceeded the value of the agreed or actual consideration or selling price shall be deemed a gift, and shall be included in computing the amount  of gifts made during the calendar year.  (5^th par., Sec. 11, Rev. Regs. No. 2-2003)

VALUE-ADDED TAXES (VAT)

          WARNING !!! Approximately 10% of the total questions asked in the Bar Examination are sourced from VAT and its concepts.   This area is probably the most difficult area to forecast because there are no statistically perceived patterns.  The author has retained the “Stars System” for VAT. Considering the limited period of time, the reader is advised to focus on  areas marked with stars and just browse the unmarked areas.

            âââ1.              Value-added tax (VAT) is a  tax which is imposed only on the increase in the worth, merit or importance of goods, properties or services, and not on the total value of the goods or services being sold or rendered.

          âââ2.   Nature of VAT.  VAT is an indirect tax that may be shifted or passed on to the buyer, transferee or lessee of the goods, properties or services.  As such, it should be understood not in the context of the person or entity that is primarily, directly liable for its payment, but in terms of its nature as a tax on consumption.  [Commissioner of Internal Revenue v. Seagate Technology (Philippines), G. R. No. 153866, February 11, 2005 citing various authorities}

          VAT is a percentage tax imposed on any person whether or not a franchise grantee, who in the course of trade or business, sells, barters, exchanges, leases, goods or properties, renders services.  It is also levied on every importation of goods whether or not in the course of trade or business.  The tax base of the VAT is limited only to the value added to such goods,  properties, or services by the seller, transferor or lessor.   Further, the VAT is an indirect tax and can be passed on to the buyer.  (Quezon City, et al., v. ABS-CBN Broadcasting Corporation, G. R. No. 166408, October 6, 2008)

          âââ3.    Effect of exemptions from VAT which is an indirect tax.  If a special law merely exempts a party as a seller from its direct liability for payment of the VAT, but does not relieve the same party as a purchaser from its indirect burden of the VAT shifted to it by its VAT-registered suppliers, the purchase transaction is not exempt.

          REASON:  The VAT is a tax on consumption, the amount of which may be shifted or passed on by the seller to the purchaser of the goods, properties or services.  [Commissioner of Internal Revenue v. Seagate Technology (Philippines), G. R. No. 153866, February 11, 2005) 

          4.            Illustration of effects of exemptions from VAT which is an indirect tax.     A VAT exempt seller sells to a non-VAT exempt purchaser.  The purchaser is subject to VAT because the VAT is merely added as part of the purchase price and not as a tax because the burden is merely shifted.  The seller is still exempt because it could pass on the burden of paying the tax to the purchaser.

          5.            The VAT is a tax on consumption.   Meaning of consumption as used under the VAT system.  Consumption is "the use of a thing in a way that thereby exhausts it."

          Applied to services, the term means the performance or "successful completion of a contractual duty, usually resulting in the performer's release from any past or future liability x x x"  Unlike goods, services cannot be physically used in or bound for a specific place when their destination is determined. Instead, there can only be a "predetermined end of a course" when determining the service "location or position x x x for legal purposes." [Commissioner of Internal Revenue v. Placer Dome Technical Services (Phils.), Inc. G. R. No. 164365, June 8, 2007]

          6.            Illustration of the meaning of consumption as used under the VAT system.  For example the services rendered by a local firm to its foreign client are performed or successfully completed upon its sending to a foreign client the drafts and bills it has gathered from service establishments here. Its services, having been performed in the Philippines, are therefore also consumed in the Philippines.  Such facilitation service has no physical existence, yet takes place upon rendition, and therefore upon consumption, in the Philippines.  [Commissioner of Internal Revenue v. Placer Dome Technical Services (Phils.), Inc. G. R. No. 164365, June 8, 2007]

          âââ7.    Who are liable for the value-added tax. 

          a.            Any person who, in the course of his trade or business,

                        1)         Sells,  barters,  exchanges or leases goods          or                                 properties, or

                        2)         renders services, and

         b.            any  person  who  imports  goods xxx

         However, in the case of importation of taxable goods, the importer, whether an individual or corporation and whether or not made in the course of his trade or business, shall be liable to VAT xxx.   (Rev. Regs. No. 16-2005,Sec. 4.105-1, paraphrasing supplied)

           

          âââ8.    Various VAT methods and systems.

          a.            Cost deduction method.  This is a single-stage tax which is payable only by the original sellers.     (Abakada Guro Party List (etc.) v. Ermita, etc., et al., G. R. No. 168056, September 1, 2005 and companion cases) This was subsequently modified and a mixture of “cost deduction method” and “tax credit method” was used to determine the value-added tax payable.  (Ibid.)

          b.            Tax credit method.  This method relies on invoices, an entity can credit against or subtract from  the VAT charged on its sales or outputs the VAT paid on its purchases, inputs and imports.  [Commissioner of Internal Revenue v. Seagate Technology (Philippines), G. R. No. 153866, February 11, 2005]  

          If at the end of a taxable period, the output taxes charged by a seller are equal to the input taxes passed on by the suppliers, no payment is required.  It is when the output taxes exceed the input taxes that the excess has to be paid. 

          If however, the input taxes exceed the output taxes, the excess shall be carried over to the succeeding quarter or quarters.  Should the input taxes result from zero-rated or effectively zero-rated transactions or from acquisition of capital goods, any excess over the output taxes shall instead be refunded to the taxpayer or credited against other internal revenue taxes. (Ibid.)

          9.            How the VAT is imposed on the increase in worth, merit or improvement of the goods or services.  The VAT utilizes the concept of the output and input taxes.

          Output VAT less Input VAT = VAT due on the increase in worth, merit or improvement f the goods or services.

            10.       The right to credit the input tax be limited by legislation because it is a mere creation of law.  Prior to the enactment of multi-stage sales taxation, the sales taxes paid at every level of distribution are not recoverable from the taxes payable.  With the advent of Executive Order No. 273 imposing a 10% multi-stage tax on all sales, it was only then that the crediting of the input tax paid on purchase or importation of goods and services by VAT-registered persons against the output tax was established.  This continued with the Expanded VAT Law (R.A. No. 7716), and The Tax Reform Act of 1997 (R.A. No. 8424).  The right to credit input tax as against the output tax is clearly a privilege created by law, a privilege that also the law can limit.  It should be stressed that a person has no vested right in statutory privileges. (ABAKADA Guro Party List, etc. et al. vs. Ermita,  G.R. No. 168207, October 15, 2005, and companion cases, on the motion for reconsideration)

            âââ11.            Output tax is the value-added tax due on the sale or lease or taxable goods, properties or services by any VAT-registered person.

            âââ12.            Input tax is the value-added tax due on  or paid by a VAT-registered person on importation of good or local purchases of goods or services, including lease or use of properties, in the course of his trade or business.   (Rev. Regs. No. 4.110-1, 1^st par.)

            13.       Included in the input tax. 

            a.         the  transitional input tax and

            b.         the presumptive input tax xxx. 

            It includes

          c.            input taxes which can be directly attributed to transactions subject to the VAT plus a ratable portion of any input tax which cannot be directly attributed to either the taxable or exempt activity.  (Rev. Regs. No. 4.110-1, 1^st par., 2^nd sentence,. And 2^nd par., paraphrasing, arrangement and numbering supplied )

            14.       Concept of transitional input tax credits on beginning inventories.  Taxpayers who become VAT-registered persons upon exceeding the minimum turnover of P1,500,000.00 in any 12-month period, or who voluntarily register even if their turnover does not exceed P1,500,000.00 (except franchise grantees of radio and television broadcasting whose threshold is P10,000,000.00) shall be entitled to a transitional input tax on the inventory on hand as of the effectivity of their VAT registration, on the following:

            a.         goods purchased for resale in their present condition;

            b.         materials purchased for further processing, but which have not yet undergone processing;

            c.          goods which have been manufactured by the taxpayer;

            d.         goods in process for sale; or

            e.         goods and supplies for use in the course of the taxpayer’s trade or business as a VAT-registered person.  [Rev. Regs. No. 16-2005, Sec.4.111-1, (a), 1^st par., arrangement and numbering supplied]

            15.       Concept of presumptive input tax credits.   Persons or firms engaged in the processing of sardines, mackerel, and milk, and in manufacturing refined sugar, cooking oil and packed noodle-based instant meals, shall be allowed a presumptive input tax, creditable against the output tax, equivalent to four percent (4%) of the gross value in money of their purchases of primary agricultural products which are used as inputs to their production.

            As used in this paragraph, the term processing shall mean pasteurization, canning and activities which through physical or chemical process alter the exterior texture or form or inner substance of a product in such a manner as to prepare it for special use to which it could not have been put in its original form or condition.  [Rev. Regs. No. 16-2005, Sec.4.111-1, (b)]

          16.          The VAT registration fee does NOT violate religious freedom.  The VAT registration fee imposed on non-VAT enterprises which includes among others, religious sects which sells and distributes religious literature is not violative of religious freedom, although a fixed amount is not imposed for the exercise of a privilege but only for the purpose of defraying part of the cost of registration.

          The registration fee is thus more of an administrative fee, one not imposed on the exercise of a privilege, much less a constitutional right.  (Tolentino v. Secretary of Finance, et al., and companion cases, 235 SCRA 630)

            17.       Interpretation of the term “In the Course of Trade or Business” as used in the VAT system.  The  term "doing business" or “course of business” conveys the idea of business being done, not from time to time, but all the time. It does not include isolated transactions. (Commissioner of Internal Revenue v. Magsaysay Lines, Inc., et al., G. R. No. 146984, July 28, 2006)

            âââ18.            Pursuant to a government program of privatization, NDC, a VAT-registered entity created for the purpose of selling real property, decided to sell to private enterprise all of its shares in its wholly-owned subsidiary the National Marine Corporation (NMC). The NDC decided to sell in one lot its NMC shares and five (5) of its ships, which are 3,700 DWT Tween-Decker, "Kloeckner" type vessels. The vessels were constructed for the NDC between 1981 and 1984, then initially leased to Luzon Stevedoring Company, also its wholly-owned subsidiary. Subsequently, the vessels were transferred and leased, on a bareboat basis, to the NMC.     The NMC shares and the vessels were offered for public bidding. Among the stipulated terms and conditions for the public auction was that the winning bidder was to pay "a value added tax of 10% on the value of the vessels."  Magsaysay Lines, Inc., offered to buy the shares and the vessels for P168,000,000.00. The bid was made by Magsaysay Lines, purportedly for a new company still to be formed composed of itself, Baliwag Navigation, Inc., and FIM Limited of the Marden Group based in Hongkong . The bid was approved by the Committee on Privatization, and a Notice of Award was issued to Magsaysay Lines.                                                         Is the sale subject to VAT ?                                         SUGGESTED ANSWER:  No.  The term "carrying on business" does not mean the performance of a single disconnected act, but means conducting, prosecuting and continuing business by performing progressively all the acts normally incident thereof; while "doing business" conveys the idea of business being done, not from time to time, but all the time. "Course of business" is what is usually done in the management of trade or business.       "Course of business" or "doing business" connotes regularity of activity. In the instant case, the sale was an isolated transaction.                                                                                                    The sale which was involuntary and made pursuant to the declared policy of Government for privatization could no longer be repeated or carried on with regularity. It should be emphasized that the normal VAT-registered activity of NDC is leasing personal property.                   This finding is confirmed by the Revised Charter of the NDC which bears no indication that the NDC was created for the primary purpose of selling real property. (Commissioner of Internal Revenue v. Magsaysay Lines, Inc., et al., G. R. No. 146984, July 28, 2006)

            âââ19.            Under the Value Added Tax (VAT), the tax is imposed on sales, barter, or exchange or goods and services.  The VAT is also imposed on certain transactions “deemed sales”  which include:                                                                                          a.         Transfer,   use   or   consumption   not in the course of business or properties originally intended for sale or for use in the course of business.  xxx

            b.         Distribution or transfer to:

                        1)         Shareholders or investors as share in the profits of the VAT- registered person; xxx or

                        2)         Creditors in payment of debt or obligation

            c.   Consignment   of  goods   if actual sale is not made within sixty (60) days following the date such goods were consigned.  Consigned goods returned by the consignee within the 60-day period are not deemed sold.

            d.         Retirement   from  or  cessation  of  business, with respect to all goods on hand,

                        1)         whether capital goods, stock-in-trade, supplies or materials as of the date of such retirement, or cessation,

                        2)         whether or not the business is continued by the new owner or successor.  xxx  [Rev. Regs. No. 16-2005, Sec. 4.106-7, paraphrasing, arrangement and numbering supplied]

            20.       Transactions considered retirement or cessation of business “deemed sale” subject to VAT.

a.         Change of ownership of the business.  There is change in the ownership of the business where a single proprietorship incorporates; or

1)         the proprietor of a single proprietorship sells his entire business.

            b.         Dissolution of a partnership and creation of a new partnership which takes over the business.  [Rev. Regs. No. 16-2005, Sec. 4.106-7 (a), (4) paraphrasing, arrangement and numbering supplied]

            21.       Sale of or lease of real properties subject to VAT. Sale of real properties primarily for sale to customers or held for lease in the ordinary course of trade or business of the seller shall be subject to VAT.  (Rev. Regs. No. 16-2005, Sec. 4.106-3, 1^st par.)

            Thus, capital transactions of individuals are not subject to VAT.  Only real estate dealers are subject to VAT.

                                                                                                                                    22.       On September  4, 2009, XYZ, Inc., a domestic corporation engaged in the real estate business, sold a building for P10,000,000.00.  Is the sale subject to the value-added tax (VAT)? If so, how much?  Explain. 

            SUGGESTED ANSWER:  Yes.  12% on the gross selling price because the sale was made in the ordinary course of trade of business of X, a domestic corporation engaged in the real estate business.

            âââ23.            The following sales of real properties are exempt from VAT, namely:

            a.         Sale  of  real properties not primarily held for sale to customers or held for lease in the ordinary course of trade or business;

            b.         Sale  of  real  properties utilized for low-cost housing as defined by RA No. 7279, otherwise known as the “Urban and Development Housing Act of 1992” and other related laws, such as RA No. 7835 and RA No. 8763. 

            xxx                               xxx                               xxx

            c.          Sale  of real properties utilized for socialized housing as defined under RA No. 7279, and other related laws wherein the price ceiling per unit is P225,000.00 or as may from time to time be determined by the HUDCC and the NEDA and other related laws.

            xxx                               xxx                               xxx

            d.         Sale  of residential lot valued at One Million Five Hundred Thousand Pesos (P1,500,000.00) and below, or house & lot and other residential dwellings valued at Two Million Give Hundred Thousand Pesos (P2,500,000.00) and below where the instrument of sale/transfer/disposition was executed on or after November 1, 2005, provided, That not later than January 31, 2009 and every three (3) years thereafter, the amounts stated herein shall be adjusted to its present value using the Consumer Price Index, as published by the National Statistics Office (NSO); provided, further, that such adjustment shall be published through revenue regulations to be issued not later than March 31 of each year.

            If two or more adjacent residential lots are sold or disposed in favor of one buyer, for the purpose of utilizing the lots as one residential lot, the sale shall be exempt from VAT only if the aggregate value of the lots do not exceed P1,500,000.00.  Adjacent residential lots, although covered by separate titles and/or separate tax declarations, when sold or disposed of to one and the same buyer, whether covered by one or separate Deed of Conveyance, shall be presumed as a sale of one residential lot.  [Rev. Regs. No. 4.109-1 (B), (p),  paraphrasing and numbering supplied]

        24.           VAT on services and lease of properties.

            a.         There  shall  be  levied, assessed, and collected,

            b.         a value-added tax equivalent to twelve percent (12%) of gross receipts

            c.          derived from the sale or exchange of services,

                        1)         including the use or lease of properties.  [NIRC of             1997, Sec. 108 (A), as amended by R.A. No. 9337, arrangement and numbering supplied]

            25.       “Sale or exchange of services”, defined.   The term “sale or exchange of services” means the performance of all kinds of services in the Philippines for others for a fee, remuneration or consideration, whether in kind or in cash, including those performed or rendered by the following:                                                                                                      a.      construction and service contractors;                                                                         b.         stock, real estate, commercial, customs and immigration brokers;                                                                                                                            c.          lessors of property, whether personal or real;                                                       d.         persons engaged in warehousing services                                                    e.         lessors or distributors of cinematographic films;                            f.          persons engaged in milling, processing, manufacturing or repacking goods for others;                                                                                             g.         proprietors, operators or keepers of hotels, motels, rest-houses, pension houses, inns, resorts; theaters, and movie houses;                                   h.         proprietors or operators of restaurants, refreshment parlors, cafes and other eating places, including clubs and caterers;                                          i.         dealers in securities;                                                                                             j.          lending investors;                                                                                               k.         transportation contractors on their transport of goods or cargoes, including persons who transport goods or cargoes for hire and other domestic common carriers by land relative to their transport of goods or cargoes;                                                                                                                                l.          common carriers by air and sea relative to their transport of passengers, goods or cargoes from one place in the Philippines to another place in the Philippines;                                                                                                        m.        sales of electricity by generation companies, transmission, and/or  distribution companies;                                                                                                  n.      franchise grantees of electric utilities, telephone and telegraph, radio and television broadcasting and all other franchise grantees except franchise grantees of radio and/or television broadcasting whose annual gross receipts of the preceding year do not exceed Ten Million Pesos (P10,000,000.00), and franchise grantees of gas and water utilities;                                                                                                                             o.         non-life insurance companies (except their crop insurances), including surety, fidelity, indemnity and bonding companies; and                                                                                                                                                                            p.         similar services regardless of whether or not the performance thereof calls for the exercise or use of the physical or mental faculties.  [NIRC of 1997, Sec. 108 (A), as amended by R.A. No. 9337; Rev. Regs. No. 16-2005, Sec. 4,108-2, 1^st par., arrangement and numbering supplied]

            26.       Also included in the phrase “sale or exchange of services. 

            a.         The  lease  or the use of or the right or privilege to use any copyright, patent, design or model, plan, secret formula or process, goodwill, trademark, trade brand or other like property or right;

            b.         The  lease  or  the  use  of, or the right to use any industrial, commercial or scientific equipment;

            c.          The  supply  of scientific, technical, industrial or commercial knowledge or information;

            d.         The  supply  of any assistance that is ancillary and subsidiary to and is furnished as a means of enabling the application or enjoyment of any such property, or right as is mentioned in subparagraph (2) hereof or any such knowledge or information as is mentioned in subparagraph (3) hereof; or

            e.         The supply of services by a non-resident person or his employee in connection with the use of property or rights belonging to, or the installation or operation of any brand, machinery or other apparatus purchased from such non-resident person;

            f.          The  supply of technical advice, assistance or services rendered in connection with technical management or administration of any scientific, industrial  or commercial undertaking, venture, project of scheme;

            g.         The  lease  of motion picture films, film tapes and discs;

            h.         The  lease  or  the  use  of  or the right to use radio, television, satellite transmission and cable television time.  (Rev. Regs. No. 16-2005, Sec. 4.108-2, 2^nd par.)

            âââ27.            Zero-rated Sales of Goods or Properties.  A zero-rated sale of goods or properties by a sale by a VAT-registered person is a taxable transaction for VAT purposes but the sale does not result in any output tax.

However, the input tax on the purchases of goods, properties or services related to such zero-rated sale shall be available as tax credit or refund in accordance with Rev. Regulations No. 16-2005.  (Rev. Regs. No. 16-2005, 1^st par.)

          âââ28.  Concept of VAT zero-rating.  The tax rate is set at zero.  When applied to the tax base, such rate obviously results in no tax chargeable against the purchaser.  The seller of such transactions charges no output tax, but can claim a refund or a tax credit certificate for the VAT previously charged by suppliers. [Commissioner of Internal Revenue v. Seagate Technology (Philippines), G. R. No. 153866, February 11, 2005]

          Under a zero-rating scheme, the sale or exchange of a particular service is completely freed from the VAT, because the seller is entitled to recover, by way of a refund or as an input tax credit, the tax that is included in the cost of purchases attributable to the sale or exchange.  The tax paid or withheld is not deducted from the tax base.  (Commissioner, of Internal Revenue v. American Express International, Inc. (Philippine Branch), G. R. No. 152609, June 29, 2005 citing various cases)

29.          Situs of taxation of zero-rated VAT services such as facilitating the collection of receivables from credit card members situated in the Philippines and payment to service establishments in the Philippines.  The place where the service is rendered determines the jurisdiction  to impose the VAT

            Performed in the Philippines, the service is necessarily subject to its jurisdiction for the State necessarily has to have a “substantial connection”  to it in order to enforce a zero rate.  The place of payment is immaterial  much less is the place where the output of the service will be further or ultimately used.

            This is so because the law neither makes a qualification nor adds a condition in determining the tax situs of a zero-rated service.  (Commissioner of Internal Revenue v. American Express International, Inc. (Philipppine Branch), G. R. No. 152609, June 29, 2005)

âââ30.            Destination principle under the VAT System.  As a general rule, the VAT system uses the destination principle as a basis for the jurisdictional reach of the tax.

Goods and services are taxed only in the country where they are consumed. Thus, exports are zero-rated, while imports are taxed.

This is also known as the “Cross Border Doctrine.”

âââ31.            Exception to the destination principle.   The law clearly provides for an exception to the destination principle; that is, for a zero percent VAT rate for services that are performed in the Philippines, "paid for in acceptable foreign currency and accounted for in accordance with the rules and regulations of the [BSP]."

            âââ32.            Rationale for zero-rating of exports.  The Philippine VAT system adheres to the Cross Border Doctrine, according to which, no VAT shall be imposed to form part of the cost of goods destined for consumption outside of the territorial border of the taxing authority.  [Commissioner of Internal Revenue v. Toshiba Information Equipment (Phils.), Inc., G. R.. No. 150154, August 9, 2005] The “Cross Border Doctrine” is also known as the destination principle.                                                                                Hence, actual or constructive export of goods and services from the Philippines to a foreign country  must be zero-rated for VAT; while, those destined for use or consumption within the Philippines shall be imposed the twelve percent (12%) VAT.

            âââ33.            Zero-rated sale distinguished from exempt transactions:

            a.         A zero-rated sale is a taxable transaction but does not result in an output tax WHILE an exempt transaction is not subject to the output tax.

            b.         The  input tax on the purchases of a VAT registered person who has zero-rated sales may be allowed as tax credits or refunded WHILE the seller in an exempt transaction is not entitled to any input tax on his purchases despite the issuance of a VAT invoice or receipt.

            c.          Persons engaged in transactions which are zero rated being subject to VAT are required to register WHILE registration is optional for VAT-exempt persons.

            âââ34.            Zero-rated sales by VAT-registered persons.  The following sales by VAT-registered persons shall be subject to zero percent (0%) rate:

            a.         Export sales;

                  b.         Considered export sales under Executive Order No. 224;

            c.          Foreign currency denominated sale; and

            d.         Sales to persons or entities deemed tax-exempt under special law or international agreement.  (Rev. Regs. No. 16-2005, Sec. 4.106-5, 2^nd par., paraphrasing supplied)

           35.       Sale of gold to the Central Bank considered as export sales.  As export sales, the sale of gold to the Central Bank is zero-rated, hence, no tax is chargeable to it as purchaser.  Zero rating is primarily intended to be enjoyed by the seller, which charges no output VAT but can claim a refund of or a tax credit certificate for the input VAT previously charged to it by suppliers. (Commissioner of Internal Revenue v. Manila Mining Corporation, G.R. No.  153204, August 31, 2005)

            36.       Sales to ecozone, such as PEZA, considered export-sale.  Notably, while an ecozone is geographically within the Philippines, it is deemed a separate customs territory and is regarded in law as foreign soil.  Sales by suppliers from outside the borders of the ecozone to this separate customs territory are deemed as exports and treated as export sales.  These sales are zero-rated or subject to a tax rate of zero percent.  (Commissioner of Internal Revenue v. Sekisui Jushi Philippines, Inc., G. R. No. 149671, July 21, 2006 citing various authorities)

            37.       “Ecozone”, defined.  An ECOZONE or a Special Economic Zone has been described as –   [S]elected areas with highly developed or which have the potential to be developed into agro-industrial, industrial, tourist, recreational, commercial, banking, investment and financial centers whose metes and bounds are fixed or delimited by Presidential Proclamations.  An ECOZONE may contain any or all of the following: industrial estates (IEs), export processing zones (EPZs), free trade zones and tourist/recreational centers.        The national territory of the Philippines outside of the proclaimed borders of the ECOZONE shall be referred to as the Customs Territory. [Commissioner of Internal Revenue v. Toshiba Information Equipment (Phils.), Inc., G. R.. No. 150154, August 9, 2005]

            âââ38.            Zero-rated sale of service, defined.  A zero-rated sale of service (by a VAT-registered person) is a taxable transaction for VAT purposes, but shall not result in any output tax.  However, the input tax on purchases of goods, properties or services related to such zero-rated sale shall be available as tax credit or refund in accordance with Rev. Regs. No. 16-2005. [Rev. Regs. No. 16-2005, Sec.  Sec. 4.108-5 (a), words in italics supplied)

          âââ39.  Service performed by American Express in facilitating the collection of receivables from credit card members situated in the Philippines and payment to service establishments in the Philippines in behalf of its Hong-Kong based client is subject to VAT but zero-rated.  This is so because it meets all the requirements for VAT imposition, as follows:

          a.            It regularly renders in the Philippines the service of facilitating the collection and payment of receivables belonging to a foreign company that is a clearly separate and distinct entity.

          b.            Such service is commercial in nature; carried on over a sustained period of time; on a significant scale with a reasonable degree of frequency; and not at random, fortuitous, or attenuated.

          c.            For this service, it definitely receives consideration in foreign currency that is accounted for in conformity with law.

          d.            It is not an entity exempt under any of our laws or international agreements.  (Commissioner, of Internal Revenue v. American Express International, Inc. (Philippine Branch), G. R. No. 152609, June 29, 2005)

          40.          While the service performed by American Express is subject to VAT it is zero-rated, and BIR Revenue Regulations that alter the legal requirements for zero-rating are ultra vires and invalid.  The VAT system uses the destination principle which posits that the goods and services are taxed only in the country where they are consumed,

          However, the law itself provides for clear exceptions under which the supply of services shall be zero-rated, among which are the following:

          a.            The service is performed in the Philippines;

          b.            The services are within the categories provided for under the Tax Code; and

          c.            It is paid for in acceptable foreign currency of the Bangko Sentral ng Pilipinas.

          American Express renders assistance to its foreign clients by receiving the bills of service establishments located in the country and forwarding them to their clients abroad.  The services are performed or successfully completed upon send to its foreign clients the drafts and bills it has gathered from service establishments here,  Its services, having been performed in the Philippines are therefore also consumed in the Philippines.  Thus, its services are exempt from the destination principle and are zero-rated. 

          The BIR could not change the law.  [Commissioner, of Internal Revenue v. American Express International, Inc. (Philippine Branch), G. R. No. 152609, June 29, 2005]