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Taxation 2 - Dimodlon PDF
Taxation 2 - Dimodlon PDF
A. INTRODUCTION
1
has the right to demand that it be supported with taxes so it would
have the wherewithal to continue giving protection.
For example, a national is given protection because of his
citizenship, a resident whether a citizen or alien is given protection
by the State of residence, and the place where the property is
located gives protection. Hence, the taxable estate of a citizen
and a resident alien includes all their property, real or personal,
tangible, intangible or mixed, wherever in the world such
properties are located.
OBJECTIVE TYPE:
PROBLEM TYPE:
2
d. gratuitously.
SUGGESTED ANSWER d
B. ESTATE TAX
3
gible, or mixed, whenever situated '
4
b. An imposition created by law on the privilege to
receive property. (Vera v. Navarro, 79 SCRA 434)
NOTES AND COMMENTS: Presently, there is no inheritance tax
imposed by law. Only estate taxes are imposed. Pres. Decree
No. 69, November 24, 1972 abolished the inheritance tax and
retained the estate tax. T h e NIRC of 1997 has retained the
concept of the estate tax and does not have any provision
imposing inheritance taxes.
5
NOTES AND COMMENTS: The rationale for the principle that estate
taxation is governed by the statute in force at the time of the death of the
decedent For the rationale, the author applies by analogy the rationale
behind the principle that "inheritance taxation is governed by the statute in
force at the time of the death of the decedent (26 R.C.L., p. 206; 4 Cooley
lh
on Taxation, 4 ed., p. 3461). The taxpayer cannot foresee and ought not
to be required to guess the outcome of pending measures. Of course, a
tax statute may be made retroactive in its operations Liability for taxes
under retroactive legislation has been one of. the incidents of social life.'
(Seattle vs. Kelleher, 195 U.S. 351, 360; 49 Law. Ed 232; 25 Sup. Ct.
Rep. 44) (Lorenzo vs. Posadas, 64 Phil. 353." Cited from Dalupan,
Francisco, National Internal Revenue Code Annotated (With Illustrations)
Commonwealth Act No. 466, Vol I, 1946 ed., p. 454]
OBJECTIVE TYPE:
6
2. Estate tax is imposed on the privilege to
a. transfer property inter vivos.
b. transfer property mortis causa.
c. receive property inter vivos.
d. receive property mortis causa.
SUGGESTED ANSWER: b
C. DONOR'S TAX
7
c. To discourage inter vivos transfers of property which
could reduce the mortis causa transfers on which a higher tax, the
estate tax, would be collected.
d, It will tend to reduce the incentive to make gifts in
order that distribution of future income from the donated property
may be to a number of persons with the result that the taxes
imposed by the higher brackets of the income tax are avoided
nd s l
[U.S. Congress. House, 7 2 Congress, 1 Sess., 1932, H.R , Report No
708, reprinted in 1939-1 C.B (Part 2), pp. 476-477]
NOTES AND COMMENTS: The reader should note that no 3 of the
above stated purposes for the imposition of the donor's tax may not find
application under the provisions of the NIRC of 1997. This is especially
true if the net gifts exceed P10 million This is so because the top rate for
donations exceeding P10 million is 15% while the fop rate of 20% is
applicable to net estates that exceed P10 million.
8
ter II. which embraces Sec. 98 through to Sec 104, and provisions
of other pertinent sections and those of special laws
E S S A Y T Y P E S E L F - T E S T S . It is r e c o m m e n d e d that you
cover the S U G G E S T E D A N S W E R S and that all answers must be
in writing, giving yourself three (3) minutes per number. If pressed
for time, you could answer mentally but ensure that your answer is
complete.
OBJECTIVE TYPE:
9
Chapter 2
ESTATE TAXATION
10
(NIRC of 1997. Sec. 86)
E S S A Y T Y P E S E L F - T E S T S . It is r e c o m m e n d e d that you
cover the S U G G E S T E D A N S W E R S and that all answers must be
in writing, giving yourself three (3) minutes per number. If pressed
for time, you could answer mentally but ensure that your answer is
complete.
OBJECTIVE TYPE:
PROBLEM TYPE:
11
SUGGESTED ANSWER: Since, Mr. de la Cruz is a Filipino citizen, I
would determine his gross estate by considering all real property,
wherever situated, all personal property, tangible, intangible or mixed,
wherever situated, to the extent of the interest that Mr. de la Cruz had at
the time of his death.
NOTES NOT PART OF THE ANSWER: Refer to no. 4, supra.
SITUS O F E S T A T E T A X A T I O N
12
parties are to be included in the gross estate of a decedent. Refer
to the following discussions.
13
thereof forms part of the bed, and waters either running or
stagnant;
(9) Docks and structures which, though floating, are
intended by their nature and object to remain at a fixed place on a
river, lake, or coast;
(10) Contracts for public works, and servitudes and other
real rights over immovable property." (Rep. Act No. 386, Civil Code
of the Philippines, Art. 415,)
14
NOTES AND COMMENTS It is important to know the distinction
because the situs of estate taxation for tangible personal property follows
the rule of mobilia sequuntur personam (movables follow the person)
while that for intangible personal property follow the business situs
concept.. For further discussion refer to the Situs of Estate Taxation.
15
b. Obligations and actions which have for their object
movables or demandable sums; and
c. Shares of stock of agricultural, commercial and
industrial entities, although they may have real estate." (Ibid.,, Art
417)
E S S A Y T Y P E S E L F - T E S T S . It is r e c o m m e n d e d that you
cover the S U G G E S T E D A N S W E R S and that all answers must be
in writing, giving yourself three (3) minutes per number If pressed
for time, you could answer mentally but ensure that your answer is
complete.
OBJECTIVE TYPE:
16
d. Shares of stock of San Miguel Corporation.
SUGGESTED ANSWER: c
17
person who is both a Filipino citizen and a citizen of another country may
be subject to the Philippine laws on estate taxation. While this may be so,
the provisions of the NIRC of 1997, Title III, Chapter I, Sec. 86 (E) Tax
Credit for Estate Taxes Paid to a Foreign Country. Refer to the
discussion of this in Chapter 2, H COLLECTION AND PAYMENT OF
ESTATE TAXES
The reader should also note that the NIRC of 1997 does not make
a distinction between a resident Filipino and a non-resident Filipino with
regard to the determination of what constitutes the gross estate of a
decedent Filipino The rationale behind this absence of distinction with
regard to residency is the symbiotic relation of protection and support
between a citizen and his State It does not matter where the property of
the decedent is located so long as he is a Filipino, such property shall
form part of his gross estate because protection is given to him by the
Philippine government by reason of his citizenship
18
composition of the gross estate for estate tax purposes of a resident alien
is the same as that of Filipinos. All properties wherever situated are
included This is so because resident aliens are entitled to the protection
of the Philippine government, hence the application of the protection and
support concept in taxation.
19
OBJECTIVE TYPE:
PROBLEM TYPE:
20
car registered in name of his son, hence the car is not included in his
gross estate. (NIRC of 1997, Sec. 85,)
21
1. Mr. AS, Filipino citizen, died abroad leaving the
following properties: house and lot in Texas, USA; shares
of stock in San Miguel Corporation and PHILEX, both local
companies; bank deposits in New York City and in the Bank
of the Philippine Islands in Makati; a Toyota Camry sedan
registered in the name of his son aged 21 years. He was
buried in Manila and expenses were incurred to bring the
remains home and for his funeral.
Which among the above properties should be excluded
from his estate tax return? (Adapted from the 1987 BAR)
a. The house and lot in Texas, USA.
b. The shares of stock In San Miguel Corporation.
c. The bank deposits in new York City.
d. The Toyota Camry sedan.
. SUGGESTED ANSWER: d
22
resident alien decedent shall be determined by including
a. the value at the time of his death of his:
1) real property situated in the Philippines;
2) personal property
a) whether tangible, intangible or mixed,
b) situated in the Philippines. (NIRC of
1997, Sees. 85 and 104, numbering arid arrangement
supplied)
b. to the extent of the interest therein of the decedent at
the time of his death. [Ibid., Sec. 85 (A.)
OBJECTIVE TYPE:
23
estate taxation ?
SUGGESTED ANSWER: Refer to no 2. supra
PROBLEM TYPE:
24
a. His house and lot in China.
b. A condominium unit in California, U.S.A.
c. Shares of stock in Philippine Long Distance
Telephone Company (PLDT).
d. Accident insurance issued by a Philippine
insurance company payable to his wife.
SUGGESTED ANSWER: c
25
E. C O M M O N RULES FOR THE DETERMINATION
OF ITEMS THAT A R E INCLUDIBLE IN ALL GROSS
ESTATE WHETHER OF DECEDENT FILIPINOS,
RESIDENT ALIENS A N D NON-RESIDENT ALIENS
26
may have in properties for the s a m e to be included as
part of his gross estate. There are certain kinds of "interests"
over property which may be exercised by a person even if the said
property is not titled in his name or even if he does not o w n these
properties. The "interests" may be attributes of ownership which
the owner has allowed the decedent to exercise, or in certain
instances the property is disposed of but there is no complete
transfer of some attribute of ownership. Such retained interest
may include the following:
a. the right to possess the property;
b. the right to enjoy the fruits to the property;
c. the right to use the property;
d. the right to dispose of the property;
e. the right to determine w h o shall possess, enjoy the
fruits, or dispose of the property.
27
for time, you could answer mentally but ensure that your answer is
complete.
OBJECTIVE TYPE:
PROBLEM TYPE:
28
retained because this is the extent of the Interest that Jose
Ortiz had Ih A e said property at the time of his death.
d. Exclude the 100 hectares because these are
properties that were taken for public use by operation of law
SUGGESTED ANSWER: c
TRANSFERS IN C O N T E M P L A T I O N OF DEATH
29
the property, or (2) the right either alone or in conjunction with any person,
to designate the person which shall possess or enjoy the property or the
income therefrom; except in case of a bona fide sale for an adequate and
full consideration in money or money's worth."
There may be valuation issues involved in instances where there
is a transfer in contemplation of death.
30
contemplation of death and were, therefore automatically includible in the
gross estate
Of course there are authorities who believe otherwise. "It is the
thought of death as a controlling motive prompting the • disposition of
property that afford the test of a transfer in contemplation of death and it
cannot be said that the determinative motive is lacking merely because of
the absence of consciousness that death is imminent. It is a
contemplation of death, not necessarily contemplation of imminent death,
to which, the law refers. It is conceivable that the idea of death may
possess the mind so as to furnish a controlling motive for the disposition
of property, although death is not thought to be close at hand The
words 'in contemplation of death' means that the thought of death is the
impelling cause of the transfer, and while the belief in the imminence of
death may afford convincing evidence, the statute is not to be limited and
its purpose thwarted by a rule of construction which in place of
contemplation of death makes the final criterion to be an apprehension
that death is near at hand." (U.S. v. Wells, 283 U.S. 102, cited in 1955 PH
Fed. Tax Service, Par. 123, 526 in turn cited in Umali, Roman M.,
Reviewer in Taxation, 1980 ed. (Manila: Rex Book Store, 1980) pp. 289-
290]
The author submits that if there is no retention of any interest and
the properties transferred "in contemplation of death' are included in the
gross estate, neither the government nor the estate may be seriously
prejudiced The amount of taxes collected would not be affected If the
appropriate taxes attendant to the transfer "in contemplation of death'
(donor's taxes for example) were paid, then the appropriate deduction
would be made for vanishing deduction. Of course, the effect on tax
collection would be dependent upon the length of time the "transfer in
contemplation of death" was made and death of the transferor If the
transfer was made more than five (5) years before the transferor's death
then the concept of vanishing deduction does not apply.
b. There may be a valuation issue involved in instances
where the transfer of the possession of enjoyment shall take place after
the death of the decedent. The law is specific in the determination of
what constitutes part of gross estate as, "the extent of any interest therein
of which the decedent has at any time made a transfer, by trust or
otherwise" [NIRC of 1997, Sec. 85 (B).
c. The total value of the property transferred is not the value
that is included in the gross estate, it is "the extent of any interest therein"
that the decedent had at the time of his death. The reader should relate
this provision with Sec. 88 (A) (2) and Sec 86 (B) (2) with regard to the
deduction for Property Previously Taxed
31
nation inter vivos, are that in the former it is the donor's death that
determines the acquisition of, or the right to, the property, and that
it is revocable at the will of the donor. In the donation in question,
their effect, that is, the acquisition of, or the right to, the property,
was produced while the donor was still alive, for according to their
expressed terms they were to have this effect upon acceptance,
and this took place during the donor's lifetime. Neither can these
donations be considered as an advance on inheritance or legaqy,
because they are neither an inheritance not a legacy. And it
cannot be said that the plaintiffs received such an advance on
inheritance or legacy, since they were not heirs or legatees of their
predecessor in interest upon his death. Neither can it be said that
they obtained this inheritance or legacy by virtue of a document
which does not contain the requisites of a will (Sec. 618 of the
Code of Civil Procedure)." [Zapanfa, ef a/., v. Posadas, 52 Phil 557
cited in Dalupan, Francisco, National Internal Revenue Code Annotated
(With Illustrations) Commonwealth Act No 466, Vol I, 1946 ed , (Manila:
M Colcol & Co., 1946) pp 454 - 455]
32
take effect immediately or during the lifetime of the donor, but are
made in consideration of his death Gifts inter vivos, the
transmission of which is not made in consideration of the donor's
death, should not be understood as included within the concept of
a transfer in contemplation of death. (Vidal de Roces. et al v.
Posadas, 58 Phil. 108)
NOTES AND COMMENTS: The above ruling is applicable only if the
decedent has retained an interest in the property donated during
his lifetime.
33
retained for himself the possession or enjoyment of the right to the income
from the property.
b. It is to be noted that the law does not require that the
retention should be in writing An implied agreement is sufficient to
constitute control For example, Nini donated to her granddaughter, a
residential building which Nini continued to occupy without paying any
rent despite the transfer of ownership. The value of Nini's interest in the
residential building at the time of the donation should be included in Nini's
gross estate because there is an Implied agreement for her to retain
possession until her death There is no full transfer of all interests in the
property inter vivos.
34
b. Length of time between the gift and the death
A gift that was m a d e so close to the actual death was held
to be made in contemplation of death (ibid citing Dizon v
Posadas 57 Phil 465)
c. Execution of a will within a short time of the
making of the gift was considered as a transfer in
contemplation of death. (Ibid., citing Vidal de Roces v
Posadas, 58 Phil. 108)
35
cover the SUGGESTED A N S W E R S and that all answers must be
in writing, giving yourself three (3) minutes per number. If pressed
for time, you could answer mentally but ensure that your answer is
complete.
OBJECTIVE TYPE:
PROBLEM TYPE:
36
" \j,s c
designate the person which shall possess or enjoy the property or the
income therefrom."
NOTE NOT PART OF THE ANSWER: From the tax collection point of
view, it does not matter whether the inter-vivos gifts forms part of the
gross estate or not. If the inter vivos gifts form part of the gross estate,
and he proper donor's taxes were paid, then the concept of vanishing
deduction finds application. There would then be no effect on the taxes to
be collected from the estate. Refer to no. 3 supra which explains in detail
?he concept of transfer in contemplation of death.
REVOCABLE T R A N S F E R S
37
whatever capacity exercisable)
1) by the decedent alone or
2) by the decedent in conjunction with any other
person (without regard to when or from what source the
decedent acquired such power),
f. to alter, amend, revoke, or terminate or
g. when any such power is relinquished in con-
templation of the decedent's death. [NIRC of 1997, Sec. 85 (C) (1),
numbering and arrangement supplied]
38
ORJFCTIVE TYPE:
39
to the decedent the power to designate persons who shall
possess
40
NOTES AND COMMENTS: The NIRC of 1997 has not defined the
meaning of a power of appointment It merely provides that certain
properties that are passed under a general power of appointment shall be
considered as part of gross estate for estate tax purposes. [NIRC of 1997
Sec. 85 (D)l
The above definitions and the discussion that follow are taken from
discussion of American authors on the provisions of Sec. 2041 of the US
Internal Revenue Code and the Regulations promulgated thereunder
The author submits that the following discussion may find application in
the interpretation of the provisions of the NIRC of 1997, Sec 85 (D)J.
41
arrangement and numbering supplied]
42
9. Tax consequences of a special power of
appointment. If a person holding a special power of
appointment dies while holding the same, there is no inclusion in
the gross estate because the decedent would have no interest
existing in the property at the time of his death.
43
a The decedent passes property under a general
power of appointment either
1) by will, or
2) by deed executed
a) in contemplation of, or
b) intended to take effect
(1) in possession or enjoyment
(2) at or after his death, OR
3) by deed under which he has retained
a) for his life or
b) for any period not ascertainable without
reference to his death or
c) for any period which does not in fact
end before his death
b 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 persons, who shall possess, or
enjoy the property or the income therefrom. [NIRC of 1997,
Sec. 85 (D), numbering and arrangement supplied]
OBJECTIVE TYPE:
44
TRANSFERS FOR INSUFFICIENT CONSIDER-
ATION
LIFE I N S U R A N C E P R O C E E D S
45
2. Powers considered as "incidents of ownership" in
the policy which if retained by the decedent results to
inclusion of life insurance proceeds in the decedent's
gross estate. The NIRC of 1997 and its implementing
regulations have not set out the parameters of what are
considered as "incidents of ownership." The author suggests that
the U.S. rules may find application in the determination of whether
there are "incidents of ownership" that result to inclusion of the life
insurance proceeds in the estate of the decedent. "Incidents of
ownership" may include the power
a. or revocability of the beneficiary, which is to change
the beneficiary;
b. to surrender or cancel the policy;
' c. to assign the policy;
d. to revoke an assignment of the policy;
e. to pledge the policy for a loan;
f. to obtain from the insurer a loan against the cash
surrender value of the policy. [Adapted from the U.S. IRS Reg. Sec
20.2042-1 (c) (2)]
g. An insured's right to purchase a policy taken out by
the employer for its cash surrender value from the employer, thus
preventing the employer from cancelling the policy. (Adapted from
U.S. IRS Rev. Ruling 79-46, 1979-1 CB 303)
NOTES AND COMMENTS: In order to negate the "incidents of
ownership" which would result to the exclusion from gross estate of the
insurance proceeds, the insured has to designate the beneficiary in an
irrevocable capacity.
46
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.
NOTES A N D C O M M E N T S : The reader should not confuse the
concept of exclusion from the gross estate of irrevocable life insurance
proceeds under the NIRC of 1997, Sec. 85 (E) with the concept of
exclusion of life insurance proceeds from gross income provided for under
the NIRC of 1997, Sec. 32 (B) (1) where the concept of irrevocability is
not required.
Life insurance proceeds are always excluded from gross
income, whether the designation of the beneficiary is revocable or
irrevocable. The concept of irrevocability finds application to exclusions
from gross because the proceeds pass on after death subject to the
decedent's control if the designation of the beneficiary is revocable. Thus,
included as part of gross estate. The life insurance proceeds are
excluded from gross estate if the designation is irrevocable because the
decedent has not retained any interest which pass on after death. Thus,
excluded from gross estate.
47
long to the community, unless it is proved that it is one of those
excluded therefrom. (Ibid. Art 93)
48
9. The separate property of the spouses under the
regime of absolute community. The following are
considered as separate property of the spouses and do not form
part of the absolute community of property.
a. Property acquired during the marriage by gratuitous
title by either spouse, and the fruits as well as the income thereof,
if any, unless it is expressly provided by the donor, testator or
grantor that they shall form part of the community property;
b. Property for personal and exclusive use of either
spouse. However, jewelry shall form part of the community
property;
c. Property acquired before the marriage by either
spouse who has legitimate descendants by a former marriage, and
the fruits as well as the income, if any, of such property. (Family
Code of the Philippines, Art 92, renumbered)
49
cludible in the estate of the decedent should form part of the gross
estate. This is the share which the decedent could dispose of.
The remaining one-half (Vi) becomes the share of the surviving
spouse in the conjugal partnership.
On the other hand, if the life insurance proceeds are not
properly includible in the estate of the decedent (because the
designation of the beneficiary is irrevocable in character), the
author is of the opinion that one-half (V4) of the insurance proceeds
which constitute the share of the deceased in the conjugal
partnership should go to the irrevocable beneficiary. The
remaining one-half (%) appertains to the share of the surviving
spouse in the conjugal partnership.
NOTES AND COMMENTS: The reader should remember that the
insurance company is mandated to pay the insurance proceeds to the
named irrevocable beneficiary. But this does not prevent the surviving
spouse in the conjugal partnership from laying claim to his/her share of
the absolute community where the premiums originated from
community funds.
The author welcomes any views that may be contrary to the
above position taken by the author with regard to irrevocable
beneficiaries.
50
wife or of the husband. (Family Code of the Philippines, Art 102.
renumbered)
51
dividends and any premium which may have been returned as a
1
result of the decedent's death. ' (Introduction to Estates and Trusts by
The Institute for Paralegal Training. Statsky, William P and Matz, David,
eds,, St. Paul, Minn, West Publishing, 1979, p 170)
T h e value of the policy, of course, would be reduced by the
amount of any outstanding loan payable to the insurance
company Thus, if the insured borrowed from the insurance
company against the cash value of his policy, the amount of any
indebtedness at the time of his death would be deducted by the
company in calculating the proceeds payable to the beneficiary
and only the reduced amount would be includible in -the
decedent's e s t a t e " (Ibid.)
OBJECTIVE TYPE:
PROBLEM TYPE:
52
productive years would have insured financial stability for his
family. Should the heirs declare this amount in the estate tax
B A
returns? State your reasons. ( R 1970, adapted)
SUGGESTED ANSWER: No. The heirs should not declare the
P350.000.00 in the estate tax returns.
The ^350,000.00 is not part of the gross estate of the passenger
decedent because the proceeds are not from an insurance policy taken by
the decedent on his own life. [NIRC of 1997, Art. 85 (E)J Furthermore, the
insurance proceeds are not part of the passenger's property at the time of
his death. {Ibid, Sec. 85 (A) (1)J
53
4
The shares of stock in a Hongkong corporation operating and
managed in Makati, Metro Manila although physically situated outside of
the Philippines are considered as situated in the Philippines (NIRC of
s1
1997, Sec 104, 1 par.) The fact that it is operating and managed in the
Philippines has given it a business situs in the Philippines.
All the properties not mentioned in the above which are not situated
in the Philippines do not form part of the gross estate of Mr "J" in the
Philippines
54
cutive of a U.S. company in the Philippines until he retired in
2002. He came to like the Philippines so much that following
his retirement, he decided to spend the rest of his life in the
country. He applied for and was granted a permanent
resident status the following year. In the spring of 2009, while
vacationing in Orlando, Florida, USA, he suffered a heart
attack and died. At the time of his death, he left the following
properties: (a) bank deposits with Citibank Makati and
Citibank Orlando, Florida; (b) a resthouse in Orlando, Florida;
(c) a condominium unit in Makati; (d) shares of stock in the
Philippine subsidiary of the U.S. Company where he worked;
(e) shares of stock In San Miguel Corp. and PLDT; (f) shares
of stock in Disney World in Florida; (g) U.S. treasury bonds;
and (g) proceeds from a life insurance policy issued by a U.S.
corporation.
Which of the foregoing assets shall be included in the
taxable gross estate in the Philippines ? Explain. (BAR: 2005,
dates supplied)
SUGGESTED A N S W E R : All of the properties, except the
proceeds from a life insurance policy issued by a U.S. corporation, shall
be included in the taxable gross estate in the Philippines because the
gross estate of a resident alien such as Ralph Donald includes the value
at the time of his death of all property, real or personal, tangible or
s l
intangible, wherever situated (NIRC of 1997, Sec. 85, 1 par.,]
The proceeds from the life insurance policy is excluded from Ralph
Donald's taxable gross estate in the Philippines because there is no
showing in the problem that it was the decedent who took out the same
on His own life. (NIRC of 1997, Sec. 85 (E)]
55
7. Antonia Santos, 30 years old, gainfully employed,
is the sister of Edgardo Santos. She died in an airplane
crash. Edgardo is a lawyer and he negotiated with the airline
company and insurance company and they were able to agree
to a total settlement of P10 Million. This is what Antonia
would have earned as somebody who was gainfully
employed. Edgardo was her only heir.
Is the P10 Million subject to estate tax ? Reason briefly.
(BAR: 2007, paraphrasing supplied)
SUGGESTED A N S W E R : The P10 Million is not subject to
estate tax because the proceeds are not part of Antonia s gross estate. It
is clear that the payment came from the airline and its insurer There is
no showing that the P10 Million came from an insurance policy taken by
the decedent Antonia on her own life. [NIRC of 1997, Art. 85 (E)]
Furthermore, the P10 Million is not part of Antonia's property at the time
of her death [Ibid, Sec. 85 (A) (1)]
56
to substitute him for another. On 01 September 2009, X died
and his wife and son went to the insurer to collect the
proceeds ofX's life insurance policy.
Are the proceeds of the insurance to form part of the
gross estate of X ? (Adapted from the 2003 BAR)
a. All of the proceeds would not form part of X's
gross estate. The insurance company is obligated to pay to
the named beneficiaries, thus no part of the proceeds should
appertain the X's estate.
b. All of the proceeds would form part of X's gross
estate. The premiums were paid from the separate property of
X hence the insurance proceeds are also part of his separate
property subject to estate tax. The proceeds though would not
be taken from the named beneficiaries.
c. Only the proceeds that were paid to the son would
form part of X's gross estate. X retained an "incident of
ownership" in the insurance when he retained the right to
revoke the designation of his son as beneficiary.
d. Only a portion of the insurance proceeds that
appertain to his wife should form of X's gross estate. The
insurance proceeds paid to the wife forms part of the conjugal
partnership property hence X's share should appertain to his
estate.
SUGGESTED ANSWER: c
CAPITAL OF T H E S U R V I V I N G S P O U S E
57
absurd . Applied strictly, the exclusion does not include the separate
property of the wife (paraphernal property). Surely this is absurd if only
the separate property of the husband would be excluded. The decedent
husband does not have any interest in the paraphernal property of the
surviving wife which should be subject to estate taxes.
The provisions of the Family Code of the Philippines (E.O No
209) which took effect on August 3, 1988 shall govern the property
relations between husband and wife whose marriage was celebrated on
or after such date For marriages celebrated prior to the effectivity of the
Family Code of the Philippines, the Civil Code of the Philippines shall
govern the property relations between husband and wife in relation to the
pertinent provisions of the Family Code. (Rev. Regs. 2-2003, Sec. 1,)
OBJECTIVE TYPE:
58
c The transmission from the first heir, legatee, or
donee in favor of another beneficiary. In accordance with the
desire of the predecessor.
d. All bequests, devises, legacies or transfers to social
welfare, cultural and charitable institutions, no part of the net
income of which inures to the benefit of any individual: Provided,
however. That not more than 3 0 % of the said bequests, devises,
legacies or transfers shall be used by such institutions for
administration purposes. (NIRC of 1997, Sec. 87, numbering and
arrangement supplied)
e Exempt acquisitions a n d transmissions of intangible
personal property under the principle of reciprocity.
MERGER OF T H E U S U F R U C T IN T H E O W N E R OF
THE NAKED TITLE IS E X C L U D E D F R O M G R O S S
ESTATE
59
2. Rationale for the exclusion. The estate tax is a tax
imposed upon the privilege to transfer properties mortis causa.
There is only one transmission of property from the decedent to
the final heir through the fiduciary heir or' legatee, the
transmission from the fiduciary heir or legatee to the
fideicommissary is not taxed. The fideicommissary heir merely
holds the property for transmission to the ultimate heir.
60
the property that he is transferring to the second heir It is the decedent
transferor who had an interest which was transferred.
OBJECTIVE TYPE:
1. Who is a fideicommissary ?
SUGGESTED ANSWER: Refer to no 6, supra.
2. Who is a legatee ?
SUGGESTED ANSWER: Refer to no 4, supra
3. Who is a devisee ?
SUGGESTED ANSWER: Refer to no 5, supra
61
TRANSMISSION FROM THE FIRST HEIR TO
ANOTHER BENEFICIARY IN ACCORDANCE WITH THE
DESIRE OF THE PREDECESSOR IS EXCLUDED FROM
GROSS ESTATE
OBJECTIVE TYPE:
PROBLEM TYPE:
62
Zandro was conditioned by is death This is evident from t h e fact that the
transfer was effected through Xavier s last will and testament.
[b] Should the painting be included in the gross
estate of Zandro in 2009 and thus, be subject to estate tax ?
Explain. (BAR: 2009, dates and paraphrasing supplied)
SUGGESTED ANSWER: The painting also forms part of the
gross estate of Zandro because he had an interest existing in the painting
at the time of his death He had full disposition of the said painting
1
It is to be noted that there is no indication in the sentence, The.
will also granted Zandro the power to appoint his wife, Wilma, as
successor to the painting in the event of Zandro's death" that there is a
limitation imposed by Xavier on the disposition by Zandro of the painting
This is merely grant of a power which Zandro may or may not exercise.
ALTERNATIVE ANSWER: The painting should not be included as
part of the gross estate of Zandro because the transmission from the
legatee (Zandro) favor of another beneficiary (Wilma), was in accordance
with the desire of the predecessor (Xavier) hence it shall not be taxable.
[NIRC of 1997, Sec. 87 (C)]
63
transfers shall be used by such institutions for administration
purposes. [ N I R C o f 1 9 9 7 . S e c 8 7 (D)]
ACQUISITIONS A N D T R A N S F E R S OF INTANGIBLE
PERSONAL PROPERTY ARE EXCLUDED FROM
GROSS ESTATE S U B J E C T TO RECIPROCITY
64
s
residing in that foreign country (NIRC of 1997, Sec. 104, 1 '
par., numbering and arrangement supplied)
65
values fixed by the Provincial and City Assessors [NIRC of 1997,
n d
S e c . 88 (B),, R e v . Regs. 2-2003 Sec. 5, 2 par.,]
NOTES AND COMMENTS: For estate tax purposes it is the
Commissioner of Internal Revenue that determines the fair market value
[NIRC of 1997, Sec. 88 (B)] in relation to his authority to prescribe real
estate values for internal revenue tax purposes. [Ibid., Sec. 6 (E),.]
For purposes of prescribing real estate values, the Commissioner of
Internal Revenue is authorized to divide the Philippines into different
zones or areas and shall, upon consultation with competent appraisers,
both from the private and public sectors, determine the fair market value
of real properties located in each zone or area. (Rev Regs No. 2-2003,
n d
Sec 5, 2 par.)
The fair market value as determined by the Commissioner is known
as the zonal value
OBJECTIVE TYPE:
PROBLEM TYPE:
66
1. A died in 1999 leaving a will which directed all real
estate owned by him not to be sold or disposed of for a
period of 10 years after his death and ordered that the
property be given to B upon the expiry of that period. In 1999,
the estate left by A had a fair market value of P500.000.00. In
2009, the fair market value of said estate increased to
P3.000.000.00 and the Commissioner of Internal Revenue
assessed thereon estate taxes based on P3,000,000.00. Is his
assessment based of P3,000,000.00 correct ? Explain. (BAR:
1968, dates supplied and reworded)
SUGGESTED ANSWER: No The Commissioner's assessment is
erroneous because the estate of a decedent shall be appraised at its
fair market value as of the time of death. [NIRC of 1997, Sec. 88 (B)) The
fatrmarket value of the property at the time of A s death in 1996 was only
P500.000.00, hence it should be the value for estate tax purposes.
67
fifty years ago. On January 5, 2009, the administrator of the
estate and SLC jointly announced their big plans to start
conversion and development of the agricultural lands in Sta.
Rosa, Laguna, into first-class residential and commercial
centers. As a result, the prices of real properties in the
locality have doubled.
The administrator of the Estate of Jose Cernan filed the
estate tax return on January 9, 2009, by including in the gross
estate the real property at P2 million. After 9 months, the BIR
issued deficiency estate tax assessment, by valuing- the real
property at P40 million.
a) Is the BIR correct in valuing the real property at P40
million ? Explain.
t>) If you disagree, what is the correct value to use for
estate tax purposes ? Explain. (BAR: 2008 dates supplied)
SUGGESTED ANSWERS:
a) No.
b) The estate of Jose Cernan shall be appraised at its fair market
value as of the time of death [NIRC of 1997, Sec. 88 (B)] which was P20
million.
68
The spouses owned, among others, a 100-heciare agricultural
land in Sta. Rosa, Laguna with current fair market value of
P20 million and a BIR zonal valuation of P30 million. This
property was the subject matter of a Joint Venture Agreement
about to be implemented with Star Land Corporation (SLC), a
well-known real estate development company. He bought the
said real property for P2 million fifty years ago. On January 5,
2009, the administrator of the estate and SLC jointly
announced their big plans to start conversion and
development of the agricultural lands in Sta. Rosa, Laguna,
into first-class residential and commercial centers. As a
result, the prices of real properties in the locality have
doubled.
Which among the following is the proper valuation of the
100-hecate property for estate tax purposes ? (Adapted from
the 2008 BAR)
a. The current fair market value at the time of Jose
Ceman's death.
b. The current fair market value at the time of the filing of
the estate tax return.
c. The zonal valuation at the time of Jose Cernan's
death.
d. The original acquisition price of the said property.
SUGGESTED ANSWER: c
DEDUCTIONS. IN G E N E R A L
69
c. Transfers for public use:
d. The Family Home,
e. Standard deduction;
f. Medical expenses; and
g. Amount received by heirs under Republic Act No.
4917. [NIRC of 1997, Sec 86 (A)]
h. Net share of the surviving spouse in the conjugal
partnership. [Ibid., Sec. 86 (C)j
NOTES AND COMMENTS:
a. It appears that a non-resident Filipino citizen may not be
allowed to deduct the value of the Family Home. This is so because of the
requirement for the deductibility of the value of the Family Home that has
been "the decedent's family home as certified by the barangay captain of
the locality," [NIRC of 1997, Sec. 86 (A) (4)] This presupposes that the
Family Home is located in the Philippines.
b. The cost of the gift to the doctor who attended the
deceased in his last illness is deductible, but expenses to celebrate the
death anniversary of the deceased are not chargeable against the estate
( D e Guzman v. De Guzman-Carillo, L-29276, May 18, 1978. 83 SCRA
256)
70
property which are situated anywhere in the world W H I L E a
nonresident estate comprises only property situated in the
Philipp'nes or w h i c h have obtained a business situs in the
Philippines;
c. Deductions. A resident estate is allowed to deduct
the value of a family home, a standard deduction, medical
exDenses and the amount received by heirs under R.A. No. 4917
WHILE nonresident estates are not allowed to deduct the
preceding items.
71
(A) (1) (a), n u m b e r i n g a n d a r r a n g e m e n t supplied]
72
estate of a Filipino decedent, whether resident or not, or
of a resident alien decedent. Judicial expenses of the
testamentary or intestate proceedings. [NIRC of 1997, Sec. 86 (A)
0)(b)i
Judicial expenses which have been allowed by the probate
court are deductible even if the expenses were incurred after the
estate taxes have been paid. {Collector v. Fisher, L-11622 & L-11668,
January 28, 1961, 1 SCRA93)
73
j. Expenses of the administrator to preserve the family
home and maintain the family's social standing are also
deductible. ( D e Guzman v De Guzman-Carillo, L-29276, May 18, 1978,
83 SCRA 256)
k. Notarial fees paid for the extrajudicial settlement is a
deductible expense since such settlement effected a distribution of-
the estate to his lawful heirs. (Commissioner of Internal Revenue v
Coun of Appeals, etal., G. R. No. 123206, March 22, 2000)
I Attorney's fees for a guardian of the property during
the decedent's lifetime should also be considered as a deductible
administration expense. The guardian gives a detailed accounting
of the decedent's property and gives advice as to the proper
settlement of the estate, acts which contributed towards the
collection of decedent's assets and the subsequent settlement of
the case. (Ibid.)
74
cover the S U G G E S T E D A N S W E R S and that all answers must be
in writing, giving yourself three (3) minutes per number. If pressed
for time, you could answer'mentally but ensure that your answer is
complete.
OBJECTIVE TYPE:
PROBLEM T Y P E :
75
CLAIMS DEDUCTIBLE F R O M T H E GROSS ESTATE
OF DECEDENT FILIPINOS A N D RESIDENT ALIENTS
76
ions incurred incident his death such as unpaid funeral
expenses (i.e. expenses, incurred up to the time of interment) and
unpaid medical expenses which are classified under a different
category df deductions pursuant to these Regulations;
b. The liability was contracted in good faith and for
adequate find full consideration in money or money's worth;
c. The claim must be a debt or claim which is valid in
law and enforceable in court;
d. T h e indebtedness must not have been condoned by
the creditor or the action to collect from the decedent must not
have prescribed. (Rev. Regs. No. 2-2003, Sec. 6 (A) (3) (i)]
NOTES AND COMMENTS: "The deduction herein allowed in the case
of claims against the estate, unpaid mortgages, or any indebtedness
shall, when founded upon a promise or agreement, be limited to the
extent that they were contracted bona fide and for an adequate and full
cdnsideration in money or money's worth." [NIRC of 1997, Sec. 86,
77
b. Duly notarized certification from the creditor as to
unpaid balance of the debt, including interest as of the time of
death. If the creditor is a corporation, the sworn certification
should be signed by the President, or Vice-President, or other
principal officer of the corporation. If the creditor is a partnership,
the sworn certification should be signed by any of the general
partners. In case the creditor is a bank or other financial
institutions, the certification shall be executed by the branch
manager of the bank/financial institution which monitors and
manages the loan of the decedent-debtor. If the creditor is an
individual, the sworn certification should be signed by him. In any
of these cases, the one w h o should certify must not be a relative
of the borrower within the fourth civil degree, either by
consanguinity or affinity, except when the requirement below is
complied with.
When the lender, or the President/Vice-President/principai
officer of the creditor-corporation, or the general partner of the
creditor-partnership is a relative of the debtor in the degree
mentioned above, a copy of the promissory note or other evidence
of the indebtedness must be filed with the R D O having jurisdiction
over the borrower within fifteen days from the execution thereof.
c. In accordance with the requirements as prescribed in
existing or prevailing internal revenue issuances, proof of financial
capacity of the creditor to lend the amount at the time the loan w a s
granted, as well as its latest audited balance sheet with a detailed
schedule of its receivable showing the unpaid balance of the
decedent-debtor. In case the creditor is an individual w h o is no
longer required to file income tax returns with the Bureau, a duly
notarized Declaration by the creditor of his capacity to lend at the
time the loan w a s granted without prejudice to verification that may
be made by the BIR to substantiate such declaration of the
creditor.
If the creditor is a non-resident, the executor/administrator
or any of the legal heirs must submit a duly notarized declaration
by the creditor of his capacity to lend at the time when the loan
was granted, authenticated or certified to as such by the tax
authority of the country where the non-resident creditor is a
resident;
d. A statement under oath executed by the
administrator or executor of the estate reflecting the disposition of
the proceeds of the loan if said loan w a s contracted within three
(3) years prior to the death of the decedent [Rev Regs No 2-2003
78
Sec 6 (A) (3) (ii) (a), n u m b e r i n g supplied]
79
was made t h r o u g h the testate or intestate p r o c e e d i n g s
Where the settlement ;s made through the Court in a testate or
intestate proceeding, pertinent documents filed with the Court
evidencing claims against the estate, and the Court Order
approving the said claims, if already issued, in addition to the
documents mentioned in nos. 7 and 8, supra [Rev Regs No 2-
2003, Sec. 6 (A) (3) (ii) (c). paraphrasing supplied)
80
g. Must have been reported as receivables in the
income tax return of the current or prior years. (Rev Regs No 2
' Sec 103)
81
sound business judgment based upon as complete information as
is reasonably ascertainable The taxpayer need not have perfect
discernment" (Rev Regs. No 5-99, Sec. 2 c.)
INDEBTEDNESS THAT A R E D E D U C T I B L E F R O M
THE GROSS ESTATE OF FILIPINOS AND RESIDENT
ALIENS
LOSSES T H A T A R E D E D U C T I B L E F R O M T H E
G R O S S ESTATE O F FILIPINOS A N D R E S I D E N T A L I E N S
82
1. L o s s e s deductible from t h e gross e s t a t e o f a
Filipino decedent, whether resident or not, or of a
resident alien decedent.
a Losses incurred during the settlement of the estate
b arising from fires, storms, shipwreck, or other
casualties, or from robbery, theft or embezzlement,
c w h e n such losses are not compensated for by
insurance or otherwise, and
d if at the filing of the return such losses have not
been claimed as a deduction for income tax purposes in an
income tax return, and
e. Provided that such losses were incurred not later
than the last day for the payment of the estate tax as prescribed
by law. [NIRC of 1997, Sec. 86 (A) (1) (e), numbering and arrangement
supplied]
83
[NIRC of 1S97, Sec 86 (A) (1) (e). numbering and arrangement supplied]
OBJECTIVE TYPE:
84
2. Formula for computing expenses, losses,
indebtedness, and taxes deductible from the gross
estate of a nonresident alien decedent.
85
tains the same stance, that there should be no deduction allowed. The
law is clear that there should be a certification by the barangay captain of
the locality that the dwelling house is the decedent's family home. This
presupposes that the family home must be located in the Philippines
There is no barangay captain in places outside of the Philippines
86
fication of the property (family home) and the property relations
prevailing on the properties of the husband and wife. It may also
be constituted by an unmarried head of a family on his or her own
property, (ibid., Art. 156,)
For purposes of availing of a family home deduction to the
extent allowable, a person may constitute only one family home. (
n d th
Ibid., Art 156.; Rev. Regs. No. 2-2003, Sec 6 (D) a), 2 t o 5 pars]
S T A N D A R D DEDUCTION
87
pesos (P1,000,000.00) [NIRC of 1 9 9 7 . Sec. 66 (A) (5)] shall be
allowed as an additional deduction without need of substantiation
The full amount of P1,000,000 shall be allowed as deduction for
the benefit of the decedent. [Rev Regs N o 2 - 2 0 0 3 Sec 6 (E)]
NOTES AND COMMENTS. Non-resident estates are not allowed this
deduction as it is not among those enumerated under NIRC of 1 9 9 7 , Sec
8 6 (B).
OBJECTIVE TYPE:
PROBLEM TYPE:
8B
spouses and their son had the following assets and liabilities
at the time of death:
Assunta Jaime
Exclusive Coniuaal Exclusive
Cash P10.000.000 P1.2000.000
Cars P2.000.000 500,000
Land 5,000,000 2,000,000
Residential house 4,000,000
Mortgage payable 2,500,000
Funeral expenses 300,000
89
3. Tax treatment of amount exceeding PSOO.OOO. Any
amount of medical expenses incurred within one year from death
in excess of Five Hundred Thousand Pesos (P500.00G) shall no
longer be allowed a 6 a deduction. Neither can any unpaid amount
thereof in excess of the P500.000 threshold nor any unpaid
amount for medical expenses incurred prior to the one-year period
from date of death be allowed to be deducted from the gross
estate as claim against .the estate. [Rev. Regs No. 2-2003, Sec. 6
n d
(F), 2 par.)
90
PROPERTY PREVIOUSLY TAXED (VANISHING
DEDUCTION)
91
6 0 % 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;
4 0 % 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 w a s transferred to him by gift within
the same period prior to his death; and
2 0 % 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 w a s transferred to him by gift within
the same period prior to his death. [NIRG of 1997, Sec. 86 (A) (2)
and (B) (2), /lumbering, arrangement and underlining supplied]
92
purpose of computing the deduction. [NIRC of 1997, Sec. 86 (A) (2)
last par. and (B) (2)]
First basis
LESS:2nd deduction
= 2nd basis
Multiplied by 8 0 % . 6 0 % . etc.
= Vanishing deduction
OBJECTIVE TYPE:
PROBLEM TYPE:
Assunta Jaime
Exclusive Coniuaal Exclusive
93
«
94
deductions made
b. reduce his gross income
c. reduce his output value-added tax liability
d. reduce his gross estate
Choose the correct answer. (Adapted from the 2006 BAR)
SUGGESTED ANSWER: d.
NET S H A R E O F T H E SURVIVING S P O U S E I N T H E
C O N J U G A L P A R T N E R S H I P PROPERTY
95
perty shall, for the purposes of computing the net estate, b e .
deducted from the net estate of the decedent. [NIRC of 1997. Sec
86 (C)]
The deduction is allowed irrespective of whether the decedent
is a citizen, a resident alien or a nonresident estate.
NOTES A N D C O M M E N T S : The author submits that the above
deduction applies equally to the net share of the surviving spouse in the
absolute community property. This is so, because it would be absurd to
allow as a deduction the net share of the surviving spouse in the conjugal
partnership and not to allow the same in an absolute community. The
separate share of the surviving spouse, whether under the conjugal
partnership or absolute community, does not belong to the decedent so
he should not be taxed when it is inherited.
This view is reflected in the provisions of Rev. Regs. No. 2-2003,
See 6 (A) (8), which provides that, "After deducting the allowable
deductions appertaining to the conjugal or community properties included
in the gross estate, the share of the surviving spouse must be removed to
ensure that only the decedent's interest in the estate is taxed."
NOTICE OF DEATH
96
4. Administrator of decedent's property during her
lifetime not automatically administrator of her estate
upon death. This so because the contract of agency was
extinguished by death.
Thus, there was absolutely no obligation on the part of said
"administrator" during the lifetime, to inform the BIR of the
decedent's death. {Estate of the late Juliana Diet vda, de Gabriel v
Commissioner of Internal Revenue, G R. No 155541, January 27, 2004)
97
ation, return or other statements required under this Code, shall, in
lieu of an oath, contain a written statement that they are made
under penalties of perjury. Any person who willfully files a
declaration, return or statement containing information which is not
true and correct as to every material matter shall, upon conviction,
be subject to the penalties prescribed for perjury under the
Revised Penal Code." (NIRC of 1997, Sec. 267)
96
b non-resident with no legal residence in the
Philippines
99
District Office where-such executor or administrator is registered,
provided, however, that
b. in case the executor or administrator is not
registered, the estate tax return shall be filed with and the TIN of
the estate shall be secured from the Revenue District Office
having jurisdiction over the executor or administrator's legal
residence.
c. Nonetheless, in case the non-resident decedent does
not have an executor or administrator in the Philippines, the estate
tax return shall be filed with and the T I N for the estate shall be
secured from the Office of the Commissioner through RDO No.
n d
39-South Quezon City. [Rev. Regs. No. 2-2003, Sec. 9(C), 2 par]
In any other place where the Commissioner of Internal
Revenue permits the estate tax return to be filed. [NIRC of 1997,
Sec. 90 (D)]
The foregoing provisions notwithstanding, the Commissioner
of Internal Revenue may continue to exercise his power to allow a
different venue/place in the filing of tax returns. [Rev. Regs. No. 2-
rd
2003, Sec. 9 (C), 3 par]
100
ding gross value at the time of his death, or in the case of a
nonresident, not a citizen of the Philippines, of that part of his
gross estate situated in the Philippines;
(b) Itemized deductions from gross estate allowed in
Section 86; and
(c) The amount of tax due whether paid or still due and
outstanding." [NIRC of 1997Sec: 90 (A), last par.)
101
other than those with w h o m the return is required to be filed:
xxx xxx xxx
(B) In case of willful neglect to file the return within the
period prescribed by this Code or by rules and regulations, or in
case a false or fraudulent return is wilfully made, the penalty to be
imposed shall be fifty percent (50%) of the tax or of the deficiency
tax, in case any payment has been made on the basis of such
return before the discovery of the falsity or fraud: Provided, That
xxx a claim of deductions in an amount exceeding thirty percent
(30%) of actual deductions shall render the taxpayer liable for xxx
overstatement of deductions, as mentioned herein." (NIRC of 1997,
Sec. 248, paraphrasing supplied)
- E S S A Y T Y P E S E L F - T E S T S . It is recommended that y o u
cover the S U G G E S T E D A N S W E R S and that all answers must be
in writing, giving yourself three (3) minutes per number. If pressed
for time, you could answer mentally but ensure that your answer is
complete
OBJECTIVE TYPE:
PROBLEM TYPE:
102
MULTIPLE-CHOICE TYPE SELF-TEST:
103
to any country shall not exceed the same proportion of the tax
against which such credit is taken, which the decedent's net estate
situated within such country taxable under the NIRC bears to his
entire net estate; and
b. The total amount of the credit shall not exceed the
same proportion of the tax against which such credit is taken,
which the decedent's net estate situated outside the Philippines
taxable under the NIRC bears to his entire net estate. [NIRC of
1997, Sec. 86 (E), (2), numbering and arrangement supplied]
OBJECTIVE TYPE:
What is meant when the law says that the "estate taxes
imposed shall be credited with the amounts of any estate tax
imposed by the authority of a foreign country."
S U G G E S T E D A N S W E R : Refer to no. 3, supra.
PROBLEM TYPE:
104
shares of stocks in BMC, Inc., a company organized and
existing under the laws of the Philippines with principal office
at Makati, MM. The estate tax due on said shares were
correspondingly paid to the state of California.
For Philippine estate tax purposes what should be tax
treatment of the estate tax paid to the state of California ?
(Adapted from the 1978 BAR)
a. The California estate taxes are allowed to be
deducted from A's gross estate.
b. Since there is no showing of reciprocity then the
California estate taxes should not be considered in
determining the Philippine estate tax.
c. The amount of the California estate taxes are
allowed to be deducted from the Philippine estate tax that is
due from A's estate.
d. Since the California estate taxes have already
been paid there is no need anymore to pay Philippine estate
taxes.
SUGGESTED ANSWER: c
C O L L E C T I O N O F T H E ESTATE TAX
1. T w o w a y s of collecting inheritance (applied by
analogy to estate) taxes.
a. Proceeding against the executor or administrator in
his capacity as the person primarily liable for the payment of the
estate tax. In the absence of the executor or administrator,
b. going after all the heirs and collecting from each one
of them the amount of tax proportionate to the inheritance (by
analogy the estate) received (as the parties secondarily liable for
the payment of the estate tax).
b. Pursuant to the lien created by Section 315 of the
Tax Code (now Sec. 219, NIRC as amended by Rep Act No.
8424, the NIRC of 1997) upon all property and rights to property of
the estate and subjecting such part which is in the hands of an heir
or transferee to the payment of the tax due the estate. [Marcos II v.
Court of Appeals, et el., G.R. No. 120880, June 5, 1997 citing
Commissioner of Internal Revenue v. Pineda, 21 SCRA 105, words in
parentheses and paraphrasing supplied)
105
ment tribunal over the estate of the deceased is not a mandatory
requirement in the collection of estate taxes REASONS:
a There is nothing in the Tax Code, and in the pertinent
remedial laws that implies the necessity of the probate or estate
settlement court's approval of the state's claim for estate taxes
before the same can be enforced or collected;
b. On the contrary, under Section 87 of the NIRC (now
Sec. 94, NIRC of 1997), it is the probate or settlement court which
is bidden not to authorize the executor or judicial administrator of
the decedent's estate to deliver any distributive share to any party
interested in the estate, unless it is shown a Certification of the
Commissioner of Internal Revenue that the estate taxes have
been paid. (Marcos II v. Court of Appeals, etal., G.R. No. 120880, June
5, 1997, words in parentheses supplied)
OBJECTIVE TYPE:
PROBLEM TYPE:
106
4he notice. Last month, the BIR effected a levy on the real
properties of the estate to pay the delinquent tax. VCC filed a
motion with the probate court to stop the enforcement and
collection of "the tax on the ground that the BIR should have
secured first the approval of the probate court which had
Jurisdiction over the estate, before levying on Its real
properties. Is VCC's contention correct ? (BAR: 2004)
S U G G E S T E D A N S W E R : No Refer to no.2, supra.
107
b. Subsidiary liability o? the beneficiary [ibid.. Sec 91
(C), 1 * par ]
NOTES AND COMMENTS: The estate tax is a tax, imposed on the
privilege to transfer properties mortis causa. Logically, it should be
decedent who should pay the tax because he is the one transferring the
property. Since he is already dead, then it is his legal representative, his
executor or the administrator, who should be primarily liable for the tax
Of course, the executor or the administrator would source the tax
payment from the estate
108
no competent executor designated by the testator (21 Am Jur
369)
OBJECTIVE TYPE:
PROBLEM TYPE:
109
1. "X", "Y", and "Z " are surviving legitimate
children of "A " who died leaving a taxable estate valued at P8
million. "B" stepmother of "X","Y", and "Z" and surviving
spouse of "A" was appointed administratrix of the estate.
Under a compromise settlement, the surviving heirs
agreed to an equal distribution of the estate among
themselves. The estate tax was, however, not paid and an
assessment was issued against the surviving heirs, each In
an amount equal to 25% of the tax assessed.
"X", "Y", and "Z" protested the assessment, alleging
that the tax should be paid by "B", as administratrix.
Is Ihe protest of "X", "Y", and "Z" valid? Reasons.
(BAR: 1981)
SUGGESTED ANSWER: Yes. "B", the appointed administratrix, is
primarily liable for the payment of the estate tax before delivery is made to
any beneficiary of his distributive share of the estate. [NIRC of 199/, Sec.
91 (C)]
This primary personal liability of "B", the appointed administratnx,
is discharged only upon written advise of the Commissioner of Internal
Revenue, after "B" files an application for discharge and after payment of
the taxes due as notified by the Commissioner. (Ibid., Sec. 85)
It should however, be noted, that "X", "Y" and "Z" being
beneficiaries of the estate are subsidiarily liable for the payment of such
portion of the estate tax as their distributive shares bear to the value of
the total estate. (Ibid., Sec. 92)
110
P L A C E FOR P A Y M E N T O F E S T A T E T A X E S
111
resident citizen or non-resident alien, with executor or
administrator in the Philippines, the estate tax return shall be filed
with and the TIN for the estate shall be secured from tne Revenue
District Office where such executor or administrator is registered:
provided, however, that
b. in case the executor or administrator is not
registered, the estate tax return shall be filed with and the T I N of
the estate shall be secured from the Revenue District Office
having jurisdiction over the executor or administrator's legal
residence.
c. Nonetheless, in case the non-resident decedent does
not have an executor or administrator in the Philippines, the estate
tax return shall be filed with and the TIN for the estate shall be
secured from the Office of the Commissioner through RDO No.
n d
39-South Quezon City. [Rev. Regs. No. 2-2003, Sec. 9 (C), 2 par]
In any other place where the Commissioner of Internal
Revenue permits the estate tax return to be filed. [NIRC of 1997,
Sec. 90 (D)]
The foregoing provisions notwithstanding, the
Commissioner of Internal Revenue may continue to exercise his
power to allow a different venue/place in the filing of tax returns.
r t
[Rev. Regs. No. 2-2003, Sec. 9 (C), 3 par.]
TIME FOR P A Y M E N T O F E S T A T E T A X E S
112
b. Apply for an extension of time within which to pay the tax
113
supply such correct and accurate information, xxx xxx at the time
or times required by law or rules and regulations shall, in addition
to other penalties provided by law, upon conviction thereof, be
punished by a fine of not less than Ten thousand pesos (P10,000)
and suffer imprisonment of not less than one (1) year but not more
than ten (10) years. ( N I R C of 1 9 9 7 , Sec 2 5 5 , 1 * par, paraphrasing
supplied)
114
hNflhjftr rate as may be prescribed by rules and regulations from the
M t e prescribed for payment until the amount is fully paid " [NIRC
of t9»J\ Set 249(A)]
115
sion of time to pay estate tax shall be filed with the Revenue
District Office (RDO) where the estate is required to secure its TIN
and file the estate tax return. This application shall be approved
by the Commissioner of Internal Revenue or his duly authorized
n d
representative. [Rev. Regs. No. 2-2003, Sec. 9 (E), 2 p a r ]
OBJECTIVE TYPE:
116
Up to what period may the Commissioner of Internal
Revenue extend the payment of estate taxes ?
SUGGESTED ANSWER. Refer to no. 10, supra
P R O B L E M TYPE:
117
The Commissioner of Internal Revenue may grant an
extension of time for the payment of the estate tax or any part
thereof, in case the estate is settled through the courts for a
period not exqeeding
a. two (2) years from grant of the extension.
b. two (2) years from the settlement of the estate.
c. five (5) years from the settlement of the estate.
d. five (5) years from the grant of the extension,
SUGGESTED ANSWER: d
118
dustfy organized or established in the Pf„ :ppines any share,
obligation, b o n d , or right by way of gift mortis causa, legacy or
inheritance, if a certification from the Commissioner that estate
taxes fixed and due thereon have been paid is shown (ibid., Sec
S|
97, 1 par, applied in the reverse)
g. A bank who has knowledge of the death of a person,
w h o maintained a bank deposit account alone, or jointly with
another shall allow withdrawal from the said deposit account, if
the Commissioner has certified that the estate taxes have been
n d
paid. (Ibid., Sec. 97, 2 par., applied in the reverse)
119
acy or inheritance, unless a certification from the Commissioner
that the estate tax fixed and actually due thereon had been paid is
shown. (Ibid., Sec. 95)
d. Neither shall a debtor of the deceased pay his debts
to the heirs, legatees, executor or administrator of his creditor,
unless the certification of the Commissioner that the estate tax
fixed had been paid is shown; but he may pay the executor or
judicial administrator without such certification If the credit is
included in the inventory of the estate of the deceased. (Ibid)
e. There shall not be transferred to any new owner in
the books of any corporation, sociedad anoaima, partnership,
business, or industry organized or established in the Philippines
any share, obligation, bond or right by w a y of gift mortis causa,
legacy or inheritance, unless a certification f r o m the Commissioner
that estate taxes fixed and due thereon have been paid is Shown.
st
(NIRC of 1997, Sec. 97, 1 par.)
f. A bank w h o has knowledge of the death of a person,
who maintained a bank deposit account alone, or jointly with
another shall not allow any withdrawal from the said deposit
account, unless the Commissioner has certified that the estate
n d
taxes have been paid. (Ibid, 2 par.)
120
6. Requirement for contents of bank withdrawal
slips. All withdrawal slips shall contain a statement to the effect
that all of the joint depositors are still living at the time of
withdrawal by any one of the joint depositors and such statement
shall be under oath by the said depositors. (NIRC of 1997, Sec 97,
2" par., last sentence)
OBJECTIVE TYPE:
P R O B L E M TYPE:
121
a) No. The presumption under the law is that the bank
deposits are jointly owned. This is true whether the property relations of
Mr. & Mrs. de los Santos is governed by the system of absolute
community (Family Code, Art. 93) or the conjugal partnership of gains
(Ibid., Art. 116,) The burden is on Mrs. de los Santos to prove that the
deposit is not jointly owned.
b) No. If a bank has knowledge of the death of a person
who maintained a bank deposit account alone, or jointly with another, it
shall not allow any withdrawal from the said deposit account, unless the
Commissioner of Internal Revenue has certified that the estate taxes
imposed under the National Internal Revenue Code have been paid
n d
(NIRC of 1997, Sec. 97, 2 par.)
122
b) I would file an administrative appeal with the
Commissioner of Internal Revenue for three reasons:
1) The Court of Tax Appeals does not have jurisdiction as
the matter is not a disputed assessment, nor a refund of internal
revenue taxes. (Republic Act No. 1125, Sec 7,) Furthermore,
there is no decision of the Commissioner of Internal Review that
is the subject of a review.
2) Granting arguendo, that the Court of Tax Appeals
has jurisdiction as the subject refers to other matters arising
under the National Internal Revenue Code (Ibid.) the appeal
would not prosper as the prohibition on banks (NIRC of
n d
1997Sec. 97, 2 par.) to allow the withdrawals is very clear
3) Resolution of the administrative appeal is more
expeditious than a full blown trial before the Court of Tax
Appeals.
c) 1) A certification that the estate taxes has been paid OR
2) If there is no such payment, the Commissioner
authorizes the withdrawal of an amount not exceeding P20.000.00
123
Chapter 3
DONOR'S TAXATION
A. INTRODUCTION
124
wise, whether the gift is direct or indirect, and whether the property
is real or personal, tangible or intangible. [NIRC of 1997, Sec 98 (A)
(B), paraphrasing supplied]
126
a. A person gives to another a thing or right
b. on account of the latter's merits or of services
rendered by him to the donor;
c. The giving does not constitute a demandable debt
(Civil Code, Art. 726)
127
ESSAY TYPE SELF-TESTS. It is recommended that pS*
cover the SUGGESTED A N S W E R S and that all answers mutt 6 *
in writing, giving yourself three (3) minutes per number, if pressed
for time, you could answer mentally but ensure that your answerts
complete.
OBJECTIVE TYPE:
PROBLEM TYPE:
128
ended, Mr. Johnson transferred the subject share to Mr.
Robert James, the new consultant of the firm and the newly
designated playing representative, under a Deed of
Declaration of Trust and Assignment of Shares wherein the
former acknowledged the absolute ownership of ABC
Computer Corp. over the share, that the assignment was
without any consideration, and that the share was placed in
his name because the Club required It to be done.
Is the said assignment a gift and, therefore, subject to
gift tax ? (BAR: 1991, adapted)
SUGGESTED ANSWER: No The assignments are not
gratuitous, hence not subject to donor's taxes. The value of the right to
avail of the privileges attendant to the Calabar Golf Club, Inc.'s
Membership Certificate which is due to Mr. Johnson's merits or services
as a computer consultant is a fringe benefit taxable to the employer
[NIRC of 1997, Sec. 33 (B) (6)]
The same holds true with respect to the transfer of the shares to
Mr. Robert James.
129
X, a non-union member joined the strike and volunteered to
picket the company premises from 8:00 a.m. to 12:00 p.m.,
Monday to Friday. Six months into the strike, X ran out of
money and asked financial aid from the union since he has no
other source of income and needed financial assistance in
order to live. The union gave him PI,000.00 a month to take
care of his food requirements plus P500.00 to take care of his
monthly rent. When X filed his return, he excluded these
benefits from gross income. The exclusion was denied by the
BIR. Decide. (BAR: 1993)
SUGGESTED A N S W E R : The P1,500.00 given to X is
considered as a donation or gift because there is no employer-employee
relation that requires the payment of compensation income. Neither was
the P1,500 00 given to X in payment of his efforts for joining the strike and
for picketing.
130
value of the car is income citing U S precedents The author insists on
his suggested answer. The income from the income tax that maybe
collected from Mr. Osorio is offset by the loss in income tax that would be
collected from the company of Perez. There would be no revenue
accruing to the government. This is so because the value of the car was
deducted as an expense
However, if the value of the car is treated as a donation there
would also be no revenue from income taxes because the income derived
from Perez company's income tax would be offset by the loss in income
tax from Osorio. However, the government could collect donor's taxes
from a "stranger."
131
The Commissioner of Internal Revenue found that the
property was transferred to Techie Sonora by Mr. Rodrigo
because of the companionship she was providing him.
Accordingly, the Commissioner made a determination that
Sonora had compensation income of P 10 Million in the year
the condominium unit was transferred to her and issued a
deficiency income tax assessment.
Tetchie Sonora protests the assessment and claims
that the transfer of the condominium unit was a gift and
therefore excluded from income.
How will you rule on the protest of Techie Sonora ?
Explain. (BAR: 1995, adapted)
S U G G E S T E D A N S W E R : I will grant theprotest. It is clear that
the sale is a fictitious sale. No consideration pissed between Mr.
Rodrigo and Tetchie Sonora, other than the pure liberality of Mr. Rodrigo
borne out of gratitude. Donor's taxes are therefore due.
132
A sold some of his shares of stock in X Co., to his key
executives in X Co. These executives are not related to A.
The selling price is P3,000,000, which is the book value of the
shares sold but with a market value of P5,000,000. A's cost in
the shares sold is P1,000,000. The purpose of A in selling the
shares is to enable his key executives to acquire a proprietary
interest in the business and have a personal stake in the
business.
Explain if the above transactions are subject to donor's
tax. (BAR: 1999)
SUGGESTED ANSWER: All the transactions are subject to
donor's tax. The transfers were all made for less than an adequate and
full consideration in money's worth hence, the excess of the fair market
value of the property over the actual value of the consideration shall be
subject to donor's tax.
NOTE NOT PART OF THE ANSWER: Refer to nos 14 and 15. supra
133
3. Net gift for purposes of donor's taxes. The net
economic benefit from the transfer thai 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. (Rev. Regs No 2-2003, Sec. 11, last par.)
134
estate left by the decedent is not subject to donor's tax, unless
specifically and categorically done in favor of identified heir/s to
the exclusion or disadvantage of the other co-heirs in the
th
hereditary estate. (Rev Regs. No. 2-2003, Sec. 11, 4 par)
N O T E S A N D C O M M E N T S : There is a general renunciation if there is
no specific identification of the persons in whose favor the renunciation is
made
OBJECTIVE TYPE:
135
MULTIPLE-CHOICE TYPE SELF-TEST:
SITUS OF D O N O R ' S T A X A T I O N
136
taxation:
a. Franchise which must be exercised in the Philippines;
b. shares, obligations or bonds issued by any
corporation or sociedad anonima organized and constituted in the
Philippines in accordance with its laws;
c. shares, obligations or bonds by any foreign
corporation eighty-five percent (85%) of the business which is
located in the Philippines;
d. shares, obligations or bonds issued by any foreign
corporation if such shares, obligations or bonds have acquired a
business situs in the Philippines;
e. shares or rights in any partnership, business or
s t
industry established in the Philippines. (NIRC of 1997, Sec. 104, 1
par., numbering and arrangement supplied)
OBJECTIVE TYPE:
137
donor's taxes ?
SUGGESTED ANSWER Refer to no. 2. supra.
PROBLEM TYPE:
138
a. Is Miguel entitled to claim a dowry exclusion •>
c , u s , o n
Why or why not? (BAR 2009) * "* ?
SUGGESTED ANSWER: No because the dowry exclusion
donation that is exempt from the payment of donor's taxes mau K ',
of only by residents (NIRC of 1997, Sec. 101 (A) (1), whethef
aliens, is a deduction from gross gifts in order to arrive at the net aift
9 m s
subject to donor's taxes.
b. Is Miguel entitled to the rule of reciprocity in
order to be exempt from the Philippine donor's tax ? Whv or
why not? (BAR: 2009)
SUGGESTED ANSWER: No because the reciprocity rule finds
application only where there is a taxable donation Miguel's donation is
not taxable because it is made by a non-resident alien, outside of the
Philippines of property that is not located here.
139
Over But Not Over The Tax Plus Of The
Shall Be Excess
Over
P 100,000 Exempt
P 100,000 200,000 0 2% P 100,000
200,000 500,000 2,500 4% 200,000
500,000 1,000,000 14,000 6% 500,000
1,000,000 3,000,000 44,000 8% 1,000,000
3,000,000 5,000,000 204,000 10% 3,000,000
5,000,000 10,000,000 404,000 12% 5,000,000
10,000,000 1,004,000 15% 10,000,000
[NIRC of 1997, Sec. 99 (A)]
140
lateral line within the fourth degree of relationship.
The author makes this submission because the relationship
of adoption is personal and limited only to the adopter and the
adopted.
OBJECTIVE TYPE:
141
SUGGESTED ANSWER; c
EXEMPT DONATIONS. IN G E N E R A L
142
P 100,000 Exempt
P100.000 200,000 0 2% P100.000
P100,000 Exempt
P100,000 Exempt
143
ri6, Jr., the donor's tax shall be computed as follows:
P100,000 Exempt
P100.000 200,000 0 2% P100,000
E S S A Y T Y P E S E L F - T E S T S . It is r e c o m m e n d e d that you
cover the S U G G E S T E D A N S W E R S and that all answers must be
in writing giving yourself three (3) minutes per number. If pressed
for time you could answer mentally but ensure that your answer is
complete.
OBJECTIVE TYPE:
PROBLEM TYPE:
144
the zonal valuation that prevails because there is an absence of the
assessed value made by the Provincial or City Assessor.
The value of the gift in 2009 shall be whichever is the higher
between zonal value of the remaining one-half or the assessed value
made by the Provincial or City Assessors at the time of the donation.
b) The Revenue District Officer questions the
splitting of the donations into 2008 and 2009. He says that
since there were only two (2) days separating the two
donations they should be treated as one, having been made
within one year. Is he correct? Explain. BAR: 1995, dates
supplied) V
SUGGESTED ANSWER: No. The basis for computing the net
gifts is the calendar year. There are two calendar years in the problem
2008 and 2009.
c) Dlno subsequently sold the land to a buyer for
P20 million. How much did Dlno gain On the sale ? Explain.
BAR: 1995, dates supplied)
SUGGESTED ANSWER: P19 million. Dino's basis for the
property is the value of the property in the hands of the donor, which was
P1 million. This is so because the property was acquired through
donation. Since the property was sold for P20 million there was a gain of
P19 million.
d) Suppose, instead of receiving the lot by way of
donation Dino received It by Inheritance. What would be his
gain on the sale of the lot for P20 million? Explain. (BAR:
1995, dates supplied)
SUGGESTED ANSWER: The gain would be P 5 Million. This is
so because the basis would be the fair market value at the time Dino
acquired the property which is P 15 Million Thus, P 20 Million less P15
Million is P 5 Million.
145
during the c a l e n d a r year" [ S e c 9 9 (A), N I R C o f 1 9 9 7 ) , a n d t h e total net
gifts for the c a l e n d a r y e a r w h i c h d o not e x c e e d P 1 0 0 0 0 0 0 0 a r e e x e m p t
146
for partisan political activities including for political
c a m p a i g n purposes. The above tax exemption provided for
by the Election Code should be construed strictly against the
taxpayers. Corporations are prohibited from making political
contributions.
No corporation, domestic or foreign, shall give donations in
aid of any political party or candidate or for purposes of partisan
political activity. (Corp. Code, Title IV, Sec. 36.9)
O B J E C T I V E TYPE:
P R O B L E M TYPE:
147
taxes any contribution in cash or in kind to any candidate for campaign
purposes, duly reported to the Commission on Elections.
My answer would be the same even if the donation was made to
Political Party Z because the exemption also applies to contribution in
cash or in kind to a political party or coalition of parties for campaign
purposes, duly reported to the Commission on Elections.
148
2) Ramon Magsaysay Awards Foundation
149
issued Certificate of Donation, which shall be attached to the said
Notice of Donation, stating that not more than thirty percent (30%)
of the said donation/gifts for the taxable year shall be used by
such accredited non-stock, non-profit corporation. NGO institution
(qualified-donee institution) for administration purposes. [Rev
Regs. No 2-2003, Sec 13 (C)]
OBJECTIVE TYPE:
PROBLEM TYPE:
150
the calendar year that does not exceed P100 000.00 is exempt
from donor's taxes. [NIRC of 1997, Sec. 99 (A)]
b) How about the donation to the parish church? (BAR:
1994, date supplied)
SUGGESTED ANSWER: Also not subject to tax if Imelda is
a resident because the parish is a religious institution and there is
no showing in the problem that more than thirty percent (30%) of
the amount donated w a s used for administration purposes [Ibid
Sec. 101. (A) (3)1
c) How about the donation to the P.U.P. Alumni
Association? (BAR: 1994, date supplied)
SUGGESTED ANSWER: Subject to tax, because the alumni
association is not among those to whom gifts are not subject to donor's
taxes '
151
is exempt from the payment of the documentary stamp taxes OR the
transfer, the occupants/beneficiaries shall be liable for the seme.
Whenever, "one party to the taxable document enjoys exemption from the
tax herein imposed, the other party thereto who is not exempt shall be the
one directly liable for the tax" (NIRC of 1997, Sec. 173)
OBJECTIVE TYPE:
152
search institution or organization. [NIRC of 1997, Sec 101 (A) (3) and (B)
PROBLEM TYPE:
153
spiritual values. Is the donation subject to donor's tax ?
(BAR. 2007)
SUGGESTED ANSWER: No, the donation is not subject to tax if
the conditions for exemption are met. To be exempt the donor
Congregation of the Mary Immaculate should show that the donee Sisters
of the Holy Cross is religious/charitable institution
a incorporated as a non-stock entity,
b. paying no dividends,
c governed by trustees who received no compensation, and
d. devoting all its income, whether gifts, donations, subsidies or
other forms of philanthropy, to the accomplishment and promotion of the
purposes enumerated in its articles of incorporation. [NIRC of 1997, Sec
1 0 1 (A) (3), arrangement and numbering supplied]
e. not more than thirty per centum (30%) of land and dormitory
building donated shall be used by the donee for administration purposes.
(Ibid.)
OBJECTIVE T Y P E :
154
donor's tax ? Explain.
SUGGESTED ANSWER: Refer to no 1, supra
P R O B L E M TYPE:
155
actual contribution/donation;
(iv) Certificate of Title and Tax Declaration, if the
donation is in the form of real property; and
(v) Other adequate records showing the direct
connection or relation of the expenses being claimed as
deduction/donation to the adopting private entity's
participation in the Program, as well as showing or proving
receipt of the donated property.
(b) Adopting private entity shall submit application for
entitlement to the additional 50% special deduction from the gross
income, and for exemption from donor's tax to the RDO having jurisdiction
over the place of business of the adopting private entity, copy furnished
the RDO having jurisdiction over the donated real property." (Rev.
Regs. No. 10-2003, Sec. 6,)
156
erson making a donation (whether direct or indirect), unless the
donation is specifically exempt under the NIRC of 1997 or other
special laws, is required, for every donation, to accomplish under
oath a donor's tax return in duplicate. [NIRC of 1997, Sec 103 (A)
Rev Regs No. 2-2003, Sec. 13 (A)]
157
the Revenue District Officer, Revenue Collection Officer or duly
authorized Treasurer of the city or municipality where the donor
was domiciled at the time of the transfer, or
b: if there be no legal residence in the Philippines, with
the Office of the Commissioner.
c In the case of gifts made by a non-resident, the return
may be filed with the Philippine Embassy or Consulate in the
country where he is domiciled at the time of the transfer, or directly
with the Office of the Commissioner. [NIRC of 1997, Sec. 103 (B);
Rev. Regs No 2-2003, Sec 13 (B), arrangement and numbering
supplied]
For this purpose, the term "Office of The Commissioner"
shall refer to the Revenue District Office (RDO) having jurisdiction
over the BIR-National Office Building which houses the Office of
the Commissioner, or presently, to the Revenue District Office
No. 39 - South Quezon City. [Rev. Regs. No. 2-2003, Sec. 13 (B)]
158
ternal revenue taxes also find application to estate taxes.
"(A) There shall be imposed in addition to the tax required
to be paid, a penalty equivalent to twenty-five percent (25%) of he
amount due, in the following cases:
(1) Failure to file any return xxx as required under
the provisions of this Code or rules and regulations on the
date prescribed; or
(2) Unless otherwise authorized by the
Commissioner, filing a return with an internal revenue officer
other than those with w h o m the return is required to be filed;
xxx xxx xxx
(B) In case of willful neglect to file the return within the
period prescribed by this Code or by rules and regulations, or in
case a false or fraudulent return is wilfully made, the penalty to be
imposed shall be fifty percent (50%) of the tax or of the deficiency
tax, in case any payment has been made on the basis of such
return before the discovery of the falsity or fraud: Provided, That
xxx a claim of deductions in an amount exceeding thirty percent
(30%) of actual deductions shall render the taxpayer liable for xxx
overstatement of deductions, as mentioned herein." (NIRC of 1997,
Sec. 248, paraphrasing supplied)
159
(1) Failure to xxx pay the tax due xxx as required
under the provisions of this Code or rules and regulations
on the date prescribed; or
Xxx xxx xxx
(3) Failure to pay the deficiency tax within the time
prescribed for the payment in the notice of assessment; or
(4) Failure to pay the full or part of the amount of
tax shown on any return required to be filed under the
provisions of this Code or rules and regulations, or the full
amount of tax due for which no return is required to be filed,
on or before the date prescribed for its payment. (NIRC of
1997, Sec. 248, paraphrasing supplied)
160
be filed, or
(2) The amount of the tax due for which no return is
required, or
(3) A deficiency tax, or any surcharge or interest thereon
on the due date appearing in the notice and demand of the-
Commissioner, there shall be assessed and collected on the
unpaid amount, interest at the rate of twenty (20%) per annum, or
such higher rate as may be prescribed by rules and regulations,
until the amount is fully paid, which interest shall form part of the
tax." [NIRC of 1997, Sec. 249 (C) in relation to Sec 249 (A), words in
italics supplied]
161
complete.
OBJECTIVE TYPE:
PROBLEM TYPE:
162
Chapter 4
VALUE-ADDED TAX
A. INTRODUCTION
DEFINITIONS A N D P U R P O S E S
163
2. Purposes or objectives of VAT. The V A T system of
taxation is
a. principally aimed at realizing the system of taxing
goods and services,
b. simplifying tax administration, and
c make the tax system more equitable, to enable the
country to attain economic recovery. (Kapatiran ng mga Naglilingkod
sa Pamahalaan ng Pilipinas, Inc., et al, v. Tan, etc and companion
cases, 163 SCRA 371)
OBJECTIVE TYPE:
164
1. What is value-added tax ? (BAR 1983)
SUGGESTED ANSWER: R e f e r t o no. 1, supra.
N A T U R E OR C H A R A C T E R I S T I C S OF VAT
165
Ermita, etc, et al., G R No 168056, September 1, 2005 and companion
cases)
d 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]
e. As an indirect tax on services, its main object is t h e .
transaction itself or, more concretely, the performance of all kinds
of services conducted in the course of trade or business in the
Philippines. These services must be regularly conducted in this
country, undertaken in "pursuit of a commercial or an economic
activity," for a valuable consideration, and not exempt under the
Tax Code, other special laws, or any international agreement.
[Commissioner, of Internal Revenue v. American Express International,
Inc. (Philippine Branch), G. R. No. 152609, June 29, 2005 citing various
cases and authorities]
f. A seller w h o is directly and legally liable for payment
of an indirect tax, such as the V A T on goods or services is not
necessarily the person w h o ultimately bears the burden of the
same tax. It is the final purchaser or the consumer of such goods
or services w h o although not directly and legally liable for the
payment thereof, ultimately bears the burden of the tax. (Contex
Corporation v. Commissioner of Internal Revenue, 433 SCRA 376)
166
purchaser.
167
every level of consumption, yet assuages the manufacturers or
providers of goods and services by enabling them to pass on their
respective VAT liabilities to the next link of the chain until finally
the end consumer shoulders the entire tax liability. (Commissioner
of internal Revenue v Magsaysay Lines, Inc., et al., G. R. No. 146984,
July 28, 2006)
d. Being a consumption tax is a key characteristic of the
VAT. No matter how many the taxable transactions that precede
the final purchase or sale, it is the end-user, or the consumer, that
ultimately shoulders the tax.
Despite its name, V A T is generally not intended to be a
tax on value added, but rather as a tax on consumption. Hence,
there is a mechanism in the V A T system that enables firms to
offset the tax they have paid on their own purchases of goods and
services against the tax they charge on, their sales of goods and
services." [Commissioner of Internal Revenue v. Placer Dome Technical
Services (Phils), Inc. G. R. No. 164365, June 8, 2007 refemng to
ABAKADA v. Ermita, Abakada Guro Party List v. Ermita, G.R. Nos.
168056, 168207, 168461, 168463, 168730, 1 September 2005, 469
SCRA 1, 282, J. Tinga, Dissenting and Concurring Opinion; CIR v.
Magsaysay Lines, G.R. No. 146984, 28 July 2006, 497 SCRA 63, 691
168
the service "location or position x x x for legal purposes."
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. American Express
G.R. No. 152609, 29 June 2005, 462 SCRA 197 cited in Commissioner of
Internal Revenue v. Placer Dome Technical Services (Phils), Inc. G. R
No. 164365, June 8, 2007]
t
8. Nature or characteristic of VAT as a percentage
tax. V A T is a percentage tax imposed on any person whether or
not a franchise grantee, w h o 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 a d d e d to such goods, properties, or
services by the seller, transferor or lessor. (Quezon City, et al., v.
ABS-CBN Broadcasting Corporation, G. R. No. 166408, October 6, 2008,
567 SCRA 496)
169
The tax base for VAT on the importation of goods is "the total value used
by the Bureau of Customs in determining tariff and customs duties, pius
customs duties, excess taxes, if any, and other charges.'' [NIRC of
1997, Sec. 107 (A), paraphrasing and smphasis supplied]
OBJECTIVE TYPE:
VARIOUS VAT M E T H O D S A N D S Y S T E M S
170
Tfex Credit method, definition. This method relies on
Invoices, * n entity c a n credit against or subtract from the V A T
tfrjargea on its sales or outputs the V A T paid on its purchases,
'irtputs and imports. [Commissioner of Internal Revenue v. Seagate
technology (Philippines), G. R. No. 153866, February 11, 2005 citing
vanotis cases and authorities; Abakada Gum Party List (etc.) v. Erniita,
etc., etal., G. R. No. 168056, September 1;2005 and companion cases)
If at the e n d of a taxable period, the output taxes charged
o y a seller are equal to the input taxes p a s s e d on by the suppliers,
no payment is required. It is w h e n the output taxes exceed the
i n p u t taxes that the excess has to be paid. If however, the input
taxes e x c e e d 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. [Commissioner of Internal Revenue v. Seagate
Technology (Philippines), G. R. No. 153866, February 11, 2005 citing
various cases and authorities]
T H E CONCEPT OF ZERO-RATING
171
1. Basis used under the VAT system of taxation to
determine whether VAT is to be imposed. As a general
rule, the VAT system uses the destination principle as a basis for
the jurisdictional reach of the tax.
4. Concept of V A T zero-rating.
a. The tax rate is set at zero. W h e n 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 V A T
previously charged by suppliers. [Commissioner of Internal Revenue
v. Seagate Technology (Philippines), G. R. No. 153866, February 11,
2005,451 SCRA 132)
b. Under a zero-rating scheme, the safe or exchange of
172
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)
c. Export sales, or sales outside the Philippines, are
subject to V A T at 0% rate if made by a VAT-registered person -
the seller of such transactions charges no output tax, but can
claim a refund or tax credit certificate for the VAT previously
charged by suppliers. {Intel Technology Philippines, Inc. v
Commissioner of Internal Revenue, 522 SCRA 657; .Atlas Consolidated
Mining and Development Corporation v. Commissioner of Internal
Revenue, 524 SCRA 73)
173
ZERO-RATED SALES OF GOODS OR
PROPERTIES
174
4. Zero-rated export sales by VAT-registered
persons. The term export sales' means:
a. The sales and actual shipment of goods from the
Philippines to a foreign country paid for in acceptable foreign
currency or its equivalent in goods or services, and accounted for
in accordance with the rules and regulations of the Bangko Sentral
ng Pilipinas (BSP);
b. Sale of raw materials or packaging materials to a
nonresident buyer for delivery to a resident local export-oriented
enterprise to be used in manufacturing, processing, packing or
repacking in the Philippines and paid for in acceptable foreign
currency and accounted for in accordance with the rules and
regulations of the Bangko Sentral ng Pilipinas (BSP);
c. Sale of raw materials or packaging materials to
export-oriented enterprise w h o s e export sales exceed seventy
percent (70%) of total annual production.;
d. Sale of gold to the Bangko Sentral ng Pilipinas
(BSP);
e. Those considered export sales under Executive
Order No. 226, otherwise known as the Omnibus Investment Code
of 1987, and other special laws; and
f. The sale of goods, supplies, equipment and fuel to
persons engaged in international shipping or international air
transport operations [NIRC OF 1997, Sec 106 (A) ( 2 ) (a)]
175
11, 2005, 4 5 1 S C R A 132, 143-144]
176
c w h o s e export sales exceed seventy percent (70%) of
total annual production. (NIRC of 1997, Sec 106 (A) (2) (a) (3),
arrangement and numbering supplied]
NOTES AND COMMENTS: There is no requirement for payment in
acceptable foreign currency.
177
150154, August 9, 2005]
178
.be ejttfttftd t o the benefits allowed by law for such transaction
{Atlas Consolidated Mining and Development Corporation v
Commissioner of Internal Revenue. 524 SCRA 73)
Z E R O - R A T E D S A L E S OF SERVICES A N D USE OR
L E A S E O F PROPERTIES
179
1. Zero-rated sale of service, definition. 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)
180
gen fuels [ibid ]
181
HELD: BWSCMI is not zero rated and is subject to the 10% (now
12%) VAT It is rendering service for the Consortium which is doing
business in the Philippines. Zero-rating finds application only where the
recipient of the services are other persons doing business outside of the
Philippines BWSCMI provides services to the Consortium which by
virtue of its contract with NAPOCOR does the actual work within the
Philippines (Commissioner of Internal Revenue v Burmeister and Wain
Scandinavian Contractor Mindanao, Inc., G. R. No. 153205, January 22,
2007. 512 SCRA 124)
NOTES AND COMMENTS.
a. Do not confuse the BWSCMI case with the American
Express case. American Express International, Inc. (Philippine Branch)]
is a VAT-registered person that facilitates the collection and payment of
receivables belonging to its non-resident foreign client [American Express
International, Inc. (Hongkong Branch)], for which it gets paid in acceptable
foreign currency inwardly remitted and accounted for in accordance with
BSP rules and regulations (Commissioner of Internal Revenue v.
Burmeister and Wain Scandinavian Contractor Mindanao, Inc., G. R. No.
153205, January 22, 2007, 512 SCRA 124) WHILE in BWSCMI there was
domestic consumption of the service because the power barges are found
in the Philippines.
b. At the time the factual antecedents of the BWSCMI case
took place the rate was 10%.
182
Mamalateo. The Value Added Tax in the Philippines ( 2 0 0 0 ) . p. 9 3 ] , much
less is t h e 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, supra)
183
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)
184
engaged therein is
1) a nonstock, nonprofit private organization
a) (irrespective of the disposition of its. net
income and
b) whether, or not it sells exclusively to
members or their guests)
2) or government entity.
The rule of regularity, to the contrary notwithstanding,
services as defined in this Code rendered in the Philippines by
nonresident foreign persons shall be considered as being rendered
rt
in the course of trade or business." (NIRC of 1997. Sec 105, 3 and
4rth pars., arrangement and numbering supplied)
185
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 v e s s e l s "
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 ?
HELD:. The sale is not subject to VAT. In Imperial v.
Collector of Internal Revenue, G.R. No. L-7924, September 30,
1955 (97 Phil. 992), 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. [J. Aranas, UPDATED NATIONAL INTERNAL
REVENUE CODE (WITH ANNOTATIONS), p. 608-9 (1988)]. "Course
of business" is what is usually done in the management of i i a d e
or business. [Idmi v. Weeks & Russel, 99 So. 761, 764, 135 Miss 65,
cited in Words & Phrases, Vol. 10, (1984)].
What is clear therefore, based on the aforecited
jurisprudence, is that "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)
186
107); a n d
c. Value-added Tax on Sale of Services and Use or
Lease of Properties (Ibid., Sec 108)
R A T E A N D B A S E O F V A L U E - A D D E D TAX O N THE
SALE. BARTER OR EXCHANGE OF GOODS OR
PROPERTIES
187
The "gross selling price' is the tax base, the 12% is the tax rate
188
regulations prescribed by the Secretary of Finance, determine the
appropriate tax base in cases where a transaction is deemed a
sale, barter or exchange of goods or properties under Subsection
(B) (Rate and base of value-added tax on the sale of goods or
properties) hereof, or where the gross selling price is
unreasonably lower than the actual market value." [NIRC of 1997,
Sec 106 (E). words in parentheses supplied]
189
b. Dissolution of a partnership and creation of a new
partnership which takes o v e r t h e b u s i n e s s . [Rev Regs N o 16-
2006, Sec 4 . 1 0 6 - 7 (a). (4) paraphrasing, arrangement and numbering
supplied]
190
business does not deflect from the fact that such transaction is
d e e m e d as a sale under the law. (San Roque Power Corporation v
Commissioner of Internal Revenue, GR No 180345 November 25
2009)
191
ation 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 has been satisfied:
1) 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
2) National government deficit as a percentage of
GDP of the previous year exceeds one and one-half
percent (1 1/2%). (NIRC of 1997, Sec. 108 (A), as amended
by R A. N o 9337, arrangement and numbering supplied]
192
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 e x c e e d 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
s
9337; Rev. Regs. No. 16-2005, Sec. 4,108-2, 1 ' par., arrangement and
numbering supplied]
193
television, satellite transmission and cable television time. (Rev.
n d
Regs. No 16-2005, S e c 4 108-2, 2 par.)
194
Hundred Thousand Pesos (P1,500,000.00) and below, or house &
lot a n d other residential dwellings valued at T w o Million Five
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 3 1 , 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 V A T only if the
aggregate value of t h e lots do not exceed P1,500.000.00.
Adjacent residential lots, although covered by separate titles
and/or separate tax declarations, w h e n sold or disposed of to one
a n d the same buyer, whether covered by one or separate Deed of
Conveyance, shall be p r e s u m e d as a sale of one residential lot.
[Rev. Regs. No. 4.109-1 (B), (p), paraphrasing and numbering supplied]
OBJECTIVE TYPE:
PROBLEM TYPE:
195
G. ADMINISTRATIVE AND COMPLIANCE
REQUIREMENTS, RETURNS AND PAYMENT
OF THE VAT, REFUND OR CREDIT OF
EXCESS INPUT VAT
ADMINISTRATIVE REQUIREMENTS
196
register with the Revenue District Officer having jurisdiction over
the head office, branch or facility. For purposes of this Section,
the term "facility" may include but not limited to sales outlets!
places of production, warehouses or storage places " [NIRC of
1997, Sec 236 (A)]
197
7. Removal of business to other location. "Any
business for which the annual registration fee has been paid may,
subject to the rules and regulations prescribed by the Secretary of
Finance, upon recommendation of the Commissioner, be removed
and continued in any other place without the payment of additional
tax during the term for which the payment was made." (NIRC of
1997, Sec. 243)
198
time of such death.
The requirement under this Section shall also be applicable
in the case of transfer of ownership or change of name of the
business establishment." (NIRC of 1997, Sec. 242)
INVOICING R E Q U I R E M E N T S
199
invoices, prepared at least in duplicate, showing the date of
transaction, quantity, unit cost and description of merchandise or
nature of service." (NIRC of 1 9 9 7 , Sec. 2 3 7 , 1*' par., as amended by
Rep Act No. 9 3 3 7 , paraphrasing supplied)
200
purchases will be .'••Commissioner @bir.gov.ph
remitted to the govern- i A B I R District Office
ment It will be used :Name of Establishment
for the development of
the Philippines TIN
201
Official Receipt. "The following information shall be indicated in
the V A T invoice o r V A T official receipt,
(1) A statement that the seller is a V A T - r e g i s t e r e d
person, followed by his Taxpayer's Identification Number ( T I N ) ;
(2) The total amount which the purchaser pays or is
obligated to pay to the seller with the indication that such amount
includes the value-added tax: Provided, that:
(a) The amount of the tax shall be shown as a
separate item in the invoice or receipt:
(b) If the sale is exempt from value-added tax, the
term VAT-exempt sale' shall be written or printed
prominently on the invoice or receipt,
(c) If the sale is subject to zero percent (0%)
value-added tax, the term 'zero-rated sale' shall be written
or printed prominently on the invoice or receipt;
(d) If the sale involves goods, properties or
services some of which subject to and some of which are
VAT zero-rated or VAT-exempt, the invoice or receipt shall
clearly indicate the breakdown of the sale price between its
taxable, exempt and zero-rated components, and the
calculation of the value-added tax on each portion of the
sale snail be shown on the invoice or receipt: Provided,
That the seller may issue separate invoices or receipts for
the taxable, exempt, and zero-rated components of the
sale.
(3) The date of transaction, quantity, unit cost and
description of the goods or properties or nature of the service; and
(4) In the case of sales in the amount of one thousand
pesos (P1.000) or more where the sale or transfer is made to a
VAT-registered person, the name, business style, if any, address
and Taxpayer Identification Number (TIN) of the purchaser,
customer or client." (NIRC of 1997, Sec. 113 (B)]
202
added Tax on Sale of Services and Use or Lease of
Properties) without the benefit of any input tax credit; and
(ii) A fifty percent (50%) surcharge under Section
248 (B) (Civil Penalties) of this Code." [NIRC of 1997, S e c
113 ( D ) (1). words in parentheses supplied]
203
number of copies per set and the serial numbers of the receipts of
invoices in each booklet." ( N I R C of 1 9 9 7 , S e c . 238, last par)
204
10. Garages and other parking spaces
11 Gasoline stations
12 Hotels, Motels, Lodging Houses and the like
13 Token exchange stations
14. Recreational and A m u s e m e n t Centers
The Commissioner of Internal Revenue may, in meritorious
cases, qualify other lines of business to use cash register and
POS machines, considering modern business practices." (Rev
Regs No. 10-99, Sec 1)
205
ted, the permit shall be issued by the Regional Director, except
when he has delegated such power to the Revenue District Officer
of the District where the Director's office is located." (Rev Regs
n d r d
No 10-99, Sec 2.3, 2 and 3 pars.)
206
keeping and control;
h) Registered machines with resettable accumulating
grand total shall not be reset, except when expressly authorized
by the Revenue District Officer;
i) The proprietor shall not change his business name or
the use of the registered machine or transfer to another business
location, branch or establishment, or otherwise without prior
written Notice to the proper office of the Bureau having jurisdiction
over said machine;
j) Likewise the proprietor w h o have been issued a
permit to use cash register or POS machine shall not have the
machine Tepaired, upgraded, changed, modified, updated, or
otherwise removed without prior written notice to the proper office
of the Bureau having jurisdiction over said machine;
k) After repair, upgrade, change, modification, update,
or otherwise and before re-use of the machine, the proprietor and
the person w h o m a d e the repair shall submit a joint sworn
statement to the Revenue District Officer and the proprietor shall
submit a new application for proper inspection and evaluation of
the Revenue Officer assigned by the Revenue District Officer
having jurisdiction over said machine;
I) Registered machines may be withdrawn from use,
either by retirement or sale, only upon prior application with and
approval by the Regional Director or Revenue District Officer, as
the case may be. Upon receipt of the application, such officer
shall cause the immediate verification of said machine and the
accounting records kept in connection therewith, to insure that all
the sales data registered in the. machine up to the last day it was
used are properly recorded for internal revenue purposes. The
approval shall show the following information as of the date of
retirement or sale: namely, the reset counter number, accumulated
grand total sales and the number of the last cash register receipt
issued. The permit previously granted shall be recalled for
cancellation;
m) The original permit should be securely attached to
the back of the machine to which it refers and must be
conspicuously visible to the public. The serial number of the
machine should also be printed in bold figures on the back thereof
to facilitate verification;
n) In cases where the applicant as enumerated in
Section 2 is engaged in taxable and non-taxable business
activities, a permit for a cash register or POS machine of the type
207
which is capable of clearly indicating separately in words sales of
taxable and non-taxable items, may be used." (Rev. Regs. No. 10-
99, Sec. 2.5)
208
provided that, duly registered sales invoices or receipts are issued
for every sale. However, such proprietor, owner or operator shall
first notify the proper Revenue District Officer of his intention to
use the machine solely for 'internal control' and shall secure a
poster from the said Office which shall be securely attached at the
back of the machine conspicuous to the public showing the
following:
C O M M I S S I O N E R O F INTERNAL REVENUE
209
gistered sales invoices or receipts The used portion of the audit
journal tape, appropriately identified to the machine and certified
correct by the proprietor or his authorized representative, shall be
cut off from the audit roll at the end of each business day and
shall constitute the basic document to support daily sales entries
in the cash register sales book. The cash register sales book and
the used audit journal tape or its equivalent, shall form part of the
accounting records and shall be preserved within the same period
prescribed by applicable laws, rules and regulations." (Rev Regs
No 10-99, Sec 3)
210
thousand pesos (P1.000) but not more than Fifty thousand pesos
(P50.000) a n d suffer imprisonment of not less than two (2)years
but not more than four (4) years." [NIRC of 1997, Sec. 264 (a)]
N O T E S A N D C O M M E N T S : "Sec 237. Issuance of Receipts or Sales
or Commercial Invoices. - All persons subject to an internal revenue tax
shall, for each sale and transfer of merchandise or for services entered
valued at Twenty-five pesos (P25.00) or more, issue duly registered
receipts or sales of commercial invoices xxx' [NIRC of 1997, as
amended by Rep Act No. 9337)
Refer to the discussions under no. 1, supra.
B O O K S O F A C C O U N T S FOR VAT T A X P A Y E R S
211
A, Sec. 13)
4. Journal, definitions:
a. A journal is a record in which the effects of
transactions are first posted. It is a chronological '(day-to-day)
record of business transactions, such as payment and receipts of
sums of money, etc. The information that is recorded for each
transaction includes the date of the transaction, the debit and
credit changes in specific ledger accounts, and a brief explanation
of the transaction.
Since the journal is the accounting record in which
transactions are first recorded, it is sometimes called the book
of original entry.
b. A journal is "a book of original entry in which
transactions affecting the business of a taxpayer are recorded
consecutively day by day as they occur." [ B I R H a n d b o o k o n Audit
Procedures and Techniques-Volume I (Revision 2QQQ). Chapter IV A p
9]
5. Kinds of journals.
a. General journal
212
b. Special journals
1) Sales journal
2) Purchases journal
3) Cash book
213
8. Cash book, definition and concept. This is "a book
whereby all transactions involving cash such as cash receipts or
cash disbursements are recorded." [BIR Handbook on Audit
P r o c e d u r e s a n d T e c h n i q u e s - V o l u m e I (Revision 2000), Chapter IV.A.3,
p. 10]
9. Types of cash book. The two types of cash book are the
following:
a Cash receipts book; and
b. Cash disbursements book.
214
13. Kinds of ledgers.
a. General ledger
b Subsidiary ledgers
1) Accounts receivable ledger
2) Accounts payable subsidiary ledger
3) Inventory subsidiary ledger
4) Others
215
than thirty (30) days after the close of the calendar year or
accounting period. ( R e v R e g s No. V l - A , S e c 1 5 )
216
further proceedings for deportation." (NIRC of 1997, Sec 257
paraphrasing supplied)
217
these regulations shall, before using any of the aforesaid books,
records, registers, first present them to the Revenue Collection
Agent where his principal place of business is located for approval
and registration." [Rev Regs No. V-1, Bookkeeping Regulations, Sec
sl s
19 (a), 1 par, 1 ' sentence, as amended by Rev Regs. No 6-87]
218
se that they are veracious, in fact, they may be more consistent
than truthful." Indeed, books of account may be used to carry out
a plan of tax evasion. (Collector of Internal Revenue v. Reyes, L-11534
and L-11558, November 25, 1958 cited in Consolidated Mines, Inc v
Court of Tax Appeals, 58 SCRA 618)
NOTES AND COMMENTS: Under the best evidence rule, original
documents must be accompanied by working papers. (Collector v Li Yao
119 Rhil. 102, 207)
219
(c) The taxpayer should be informed by the
investigation examiner that a condition precedent to the
issuance of a permit to use loose leaf invoices and
receipts is that the taxpayer upon receipt of the permit
should immediately register with the Collection Agent or
the Revenue District Officer, a register which should be a
bound book. The bound book should show in detail and in
column the serial numbers of the invoices or receipts
printed for use by the business on the left side of the book.
Every additional printing should be recorded on the same
side of the book. On the right hand side, the serial
number of the invoices and receipts used during the week,
together with the total amount involved should be entered
weeKly.
2. Upon receipt by the Revenue District Officer of the
report of the investigating examiner, he must check with the IBM
list of delinquent accounts to determine whether the taxpayer
owes anything to the Bureau. If the taxpayer is delinquent in the
payment of his tax liabilities, such fact should be communicated to
the taxpayer with the request that the delinquent taxes should be
paid, otherwise his request to use loose leaf forms will not be
given due course. If there is no delinquency, on the part of the
taxpayer, the report should be forwarded to the Regional Office.
3. Upon receipt by the Regional Office, the reports should
be processed to determine further through the Collection Branch
whether the taxpayer has no delinquent tax liabilities, through the
Tax Fraud Unit to determine whether the taxpayer bas derogatory
information regarding tax evasion, and through the Assessment
Branch to determine whether the taxpayer has any pending report
for processing which will involve a big amount of deficiency tax. In
case of positive information on any of the above-mentioned
branches, the Regional Director should inform the taxpayer of
such fact, informing him that his request cannot be given due
course.
4. In the preparation of the permit to use loose leaf
invoices which should be prepared for the signature of the
Regional Director, the taxpayer should be required to bind the
loose leaf forms within fifteen (15) days after the end of his taxable
year and the condition to register a bound book for recording the
serial numbers of invoices printed and serial numbers of invoices
used within the week and the amount involved The letter should
likewise contain a statement that if the taxpayer is discovered to
220
have violated any of the provisions of the bookkeeping regulations,
his permit to use loose leaf forms will be immediately cancelled.
5. The permit should be duly numbered and a permit
register should be kept in the Assessment Branch showing the
number of the permit, name of the taxpayer, address, nature of
loose leaf to be used and such other information as may be
necessary for the keeping of the register
6. All permits to be issued under this Circular are to be
considered on a permanent basis unless otherwise r e v o k e d "
(RMC No. 13-82)
221
ing and manipulation of input data and the printing of output
reports. There is no loss of audit trail. Audit of this type of system
requires little training and background in Information Systems (IS).
An example of this type of system are shipping data that are
encoded and processed throughout the system along with
accounts receivable ledgers. The output is a multicopy sales
invoice for each sale, an updated subsidiary ledger, and a sales
j o u r n a l " (BIR Handbook on Audit Procedures and Techniques -Volume I
(Revision 2000), Chapter IV.D.1, p. 11]
222
sioner or any of his deputies for examination,
c after which they shall be returned
Corporations and partnerships contemplating dissolution
must notify the Commissioner; and shall not be dissolved until
clear of any tax liability. [NIRC of 1997, Sec 235 (E)J
223
(5) Keeps two (2) or more sets of such records or
books of accounts; or
(6) In any w a y commits an act or omission, in
violation of the provisions of this Section; or
xxx xxx xxx
(8) Willfully attempts in any manner to evade or
defeat any tax imposed under this Code xxx xxx shall upon
conviction for such act or omission, be punished by a Tine of
not less than Fifty thousand pesos (P50.000) but not more
than One hundred thousand pesos (P 100,000) and suffer
imprisonment of not less than two (2) years but not more
than six (6) years.
If the offender is a Certified Public Accountant, his
certificate as a Certified Public Accountant shall be automatically
revoked or cancelled upon conviction.
In the case of foreigners, conviction under this Code shall
result in his immediate deportation after serving sentence without
further proceedings for deportation." ( N I R C of 1997, S e c . 257,'
paraphrasing supplied)
RETURN A N D P A Y M E N T O F T H E V A T
224
lidated return shall be filed by the taxpayer for his principal place
of business or head office and all branches." [NIRC of 1997 as
n d
amended by Rep. Act No. 9337, Sec 114 (A). 2 par, paraphrasinq
supplied]
225
fails to pay such tax, make such return, keep such record, or
supply such correct and accurate information, xxx xxx at the time
or times required by law or rules and regulations shall, in addition
to other penalties provided by law, upon conviction thereof, be
punished by a fine of not less than Ten thousand pesos (P10,000)
and suffer imprisonment of not less than one (1) year but not more
than ten (10) years.
Any person who attempts to make it appear for any reason
that he or another has in fact filed a return or statement, or actually
files a return or statement and subsequently withdraws the same
return or statement after securing the official receiving seal or
stamp of receipt of an internal revenue office wherein the same
was actually filed shall, upon conviction therefor, be punished by a
fine of not less than Ten thousand pesos (P10,000) but not more
than Twenty thousand pesos (P20.000) and suffer imprisonment
of not less than one (1) year but not more than three (3)years."
( N I R C of 1997, S e c . 255, paraphrasing supplied)
226
turn before the discovery of the falsity or fraud: Provided, That a
substantial underdeclaration of taxable sales, receipts or income,
or a substantial overstatement of deductions, as determined by the
1
Commissioner pursuant to the rules and regulations to be
promulgated by the Secretary of Finance, shall constitute prima
facie evidence of a false or fraudulent return: Provided, further,
That failure to report sales, receipts or income in an amount
exceeding thirty percent (30%) of that declared per return, and a
claim of deductions in an amount exceeding thirty percent (30%)
of actual deductions shall render the taxpayer liable for substantial
underdeclaration of sales, receipts or income or for overstatement
of deductions, as mentioned herein."
227
1997, Sec. 249 (A)]
228
value-added tax withheld under this Section shall be remitted
w i t h i n t e n ( 1 0 ) d a y s f o l l o w i n g t h e e n d o f the m o n t h t h e w i t h h o l d i n g
was m a d e " ( N I R C o f 1 9 9 7 , a s a m e n d e d b y R e p Act N o 9337 Sec 114
( C ) , last p a r ]
229
2. Purpose for development and adoption of EFPS.
T h e Electronic Filing and Payment System (EFPS) was
developed primarily to provide Philippine taxpayers with top quality
and convenient service through a much faster processing and
immediate confirmation of filing of tax returns and payment of
taxes due thereon. EFPS is an alternative mode of filing returns
and payment of taxes which deviates from the conventional
manual process of encoding paperbound tax returns filed which is
highly susceptible to human errors a n d intervention. The system
allows the taxpayers to directly encode, submit their tax returns
and pay their taxes due online over the internet through the BIR
website. EFPS would undoubtedly reduce the government's
administrative and operational costs in interacting with taxpayers
and in collecting taxes." (R M O No 5-2002,1,)
230
cise this power within six (6) months from the approval of Republic
Act No. 7646 or the completion of its comprehensive
computerization program, whichever comes earlier: Provided,
finally, That separate venues for the Luzon, Visayas, and
Mindanao areas may be designated for the filing of tax returns and
payment of taxes by said large taxpayers." [NIRC of 1997, Sec 245
(j), paraphrasing supplied]
231
their receipt of a notification letter duly signed by the
Commissioner of Internal Revenue, it becomes mandatory for
them, including their branches located in the computerized district
office, to file their returns and pay their taxes thru EFPS." (Rev.
Regs. No 9-2001, Sec. 3.2, as amended by Rev. Regs. No. 2-2002, Rev.
Regs No. 9-002, Rev Regs. No 5-2004 and further amended by Rev.
Regs. No 10-2007)
232
13. Enrollment For Systems Usage, identified tax payers
that would like to avail of the EFPS and/or required to file certain
tax returns via the EFPS shall enroll in the EFPS in accordance
with the provisions of the applicable regulations, circulars and
d r d e r s . For juridical entities or artificial persons, enrolment shall
be m a d e by the officers required by law to file returns. Thus, for
domestic corporations, it shall either be the President, the Vice-
president or other principal officers; for partnerships, the managing
partner; for joint ventures, the managing head; and for resident
foreign corporations, the country manager." (Rev Regs No 9 - 2 0 0 1 ,
Sec 4, 1 per., as amended by Rev. Regs. No 2 - 2 0 0 2 )
s l
233
enrollment
1 7 Submit written request to LTS-LTAD/LTDG-
LTAS/RDO-TSS for re-enrollment in case given
password/user name/answer to challenge question
was forgotten or there is a change in the corporate
authorized signatory.
18 Receive an e-mail from LTS-LTAD/LTDO-LTAS/
RDO-TSS on the status of re-enrollment request
19 Perform Item A. 1.1 to A. 1.1.4 after approval of
the re-enrollment request." ( R M O No 5-2002 IV A I.)
234
I. 2550Q - Quarterly Value-Added Tax Return
xxx xxx xxx
In determining a taxpayer's compliance with a particular tax
liability, it is the information on the return, and not the form of such
return, that governs.
The Commissioner is authorized from time to time, and as
the system and operational requirements may so need, to expand
or reduce the list of returns that can be filed electronically through
the EFPS." (Rev Regs No. 9-2001, Sec. 2 12; R M O No 5-2002,
III.C, paraphrasing supplied)
235
9-2002)
236
portion of the tax and pay the remaining balance thereof in cash
All of these must be done on or before the due date of the t a x "
( R M O No 5 - 2 0 0 2 , III. G, last par)
237
Filing Reference Number is issued to the taxpayer via the EFPS.
The print-out of the Filing Reference Number shall be presented to
the AABs for manual payment of the tax due thereon, The
payment thereof is received upon validation of the document
containing the Filing Reference Number generated by the EFPS
and the issuance of an Official Receipt by the AAB." (Rev. Regs
No. 9,2001, Sec. 9.2)
238
iStered person in the course of his trade or business on
importation^ of goods or local purchase of goods or services,
including le'ase or use of property, from a VAT-registered person'
It shall include the transitional input VAT. [NIRC of 1997 Sec 110
(A) ( 3 ) (b), f ' par]
239
7. 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.
st
Regs No. 16-2005, Sec.4.111-1, (a), 1 par., arrangement and
numbering supplied]
VAT status, the transitional input tax credit serves to alleviate the
impact of the VAT on the taxpayer. At the very beginning, the
VAT-registered taxpayer is obliged to remit a significant portion of
the income it derived from its sales as output VAT. The
transitional input tax credit mitigates this initial diminution of the
taxpayer's income by affording the opportunity to offset the losses
incurred through the remittance of the output V A T at a stage w h e n
the person is yet unable to credit input V A T payments. (Eort
Bonifacio Development Corporation v. Commissioner of Internal
Revenue, etal., G R. No. 170680, October2, 2009)
240
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. [NIRC of 1997, as amended by Rep Act No 9337 Sec
111 (B); Rev. Regs. No. 16-2005, Sec.4 111-1, (b)]
241
prior to the release of the goods from the custody of the Bureau of
s
Customs. [ N I R C of 1 9 9 7 . S e c 110 (A) (2). 1 ' par]
242
other adjustments, such as purchase returns or allowances and
input tax attributable to exempt sale.
The claim for tax credit referred to in the foregoing
paragraph shall include not only those filed with other government
agencies such as the Board of Investments and the Bureau of
Customs. [NIRC of 1997, Sec. 110 (C))
243
credit. A zero-rated seller is directly and legally liable for VAT,
and can claim a refund or tax credit certificate. [Commissioner of
Internal Revenue v. Seagate Technology (Philippines), G.R No. 153866,
February 11, 2005, 451 SCRA 132]
244
Even in the absence of a final adjustment return, the determination
of any output V A T payable necessarily requires that the VAT-
registered taxpayer makes adjustments in its VAT return every
quarter, taking into consideration the input VAT which are
creditable for the present quarter, or had been carried over from
the previous quarters.
It is more practical and reasonable to count the two-year
prescriptive period for filing a claim for refund/credit of input Value-
A d d e d Tax (VAT) on zero-rated sales from the date of filing of the
return and payment of the tax due. {Atlas Consolidated Mining and
Development Corporation v. Commissioner of Internal Revenue 524
SCRA 73}
245
lently claim input tax paid on purchases that will be attributed to
sale transactions that are not zero-rated. (San Roque Power
Corporation v. Commissioner of Internal Revenue, G R No 180345.
November 25, 2009)
246
packing or repacking in the Philippines of the said buyer's
goods and paid for in acceptable foreign currency or its
equivalent in goods or services, and accounted for in
accordance with the rules and regulations of the Bangko
Sentral ng Pilipinas (BSP). [ibid, Sec 106 (A) (2) (a) (2)]
3) Processing, manufacturing or repacking goods
for other persons doing business outside the Philippines
which goods are subsequently exported, where the services
are paid for in acceptable foreign currency and accounted
for in accordance with the rules and regulations of the
Bangko Sentral ng Pilipinas (BSP). [Ibid, Sec 108 (B) (1)]
4) Services other than those mentioned in the
preceding paragraph rendered to a person engaged in
business conducted outside the Philippines or to a non-
resident person not e n g a g e d in business who is outside of
the Philippines w h e n the services are performed, the
consideration for which is paid for in acceptable foreign
currency and accounted for in accordance with the rules
and regulations of the Bangko Sentral ng Pilipinas (BSP).
[Ibid, Sec. 108 (B) (2)]
b. the acceptable foreign currency proceeds thereof had
been duly accounted for in accordance with the rules and
regulations of the Bangko Sentral ng Pilipinas (BSP). [Ibid., Sec.
112(A)]
247
with BSP rules and regulations;
h. where there are both zero-rated or effectively zero-
rated sales and taxable or exempt sales, and the input taxes
cannot be directly and entirely attributable to any of these sales,
the input taxes shall be proportionately allocated on the basis of
sales volume; and
i. the claim is filed within two years after the close of
the taxable quarter when such sales w e r e made. (San Roque
Power Corporation v. Commissioner of Internal Revenue, G.R. No.
180345, November 25, 2009 citing Intel Technology of the Philippines,
Inc. v. Commissioner of Internal Revenue, G.R. No. 166732, 27 April
2007, 522 SCRA 657, 685)
248
tified by an independent Certified Public Accountant (CPA) suffice
as evidence Of input V A T payments. (Atlas Consolidated Mining and
Development Corporation v. Commissioner of Internal Revenue 518
SCRA 425)
The law considers a duly executed Value A d d e d Tax (VAT)
invoice or Official Receipt referred to in Section 110 (A) (1) (B) of
the National Internal Revenue Code as sufficient evidence to
support a claim for input tax credit. (Commissioner of Internal
Revenue v. Mirant Pagbilao Corporation, 565 SCRA 154)
The summary of export sales, sales invoices, official
receipts, airway bills and export declaration are proof that the
taxpayer is engaged in the "sale and actual shipment of goods
from the Philippines to a foreign country. (Intel Technology
Philippines, Inc. v. Commissioner of Internal Revenue, 522 SCRA 657)
b. In a claim for refund or issuance of a tax credit
certificate attributable to zero-rated sales, what is to be closely
scrutinized is the documentary substantiation of the input VAT
paid, as may be proven by export documents, rather than the
supporting documents for the zero-rated export sales. (Intel
Technology Philippines, Inc. v. Commissioner of Internal Revenue, 522
SCRA 657)
c. Submission of photocopies of purchase invoices-and
receipts is indispensable w h e n applying for tax credit or refund
(Atlas Consolidated Mining and Development Corporation v
Commissioner of Internal Revenue, 534 SCRA 51)
249
taxes shall be made. In proper cases, the Commissioner shall
grant a refund or issue a tax credit certificate for creditable input
taxes within one hundred twenty (120) days from the date of
submission of complete documents to support the application filed
VAT-registered person on his zero-rated or effectively zero rated
s l
sale. [NIRC of 1997, Sec. 112 (C), 1 par, in relation to Sec 112 (A)]
NOTES AND COMMENTS. While the provisions of Sec 112 (C) make
specific reference to Subsection (A) of Sec. 112, the author submits that
the same period finds application to Subsection (C) on application of a
person whose VAT registration was cancelled.
H. VAT-EXEMPT TRANSACTIONS
VAT-EXEMPT T R A N S A C T I O N S . IN G E N E R A L
250
NOTES AND COMMENTS: An exemption means that the sale of goods,
properties or services and the use or lease of properties is not subject to
VAT (output tax) and the seller is not'allowed any tax credit on VAT (input
tax) previously paid.
A VAT-registered purchaser of goods, properties or services that
are VAT-exempt, is not entitled to any input tax on such purchases
despite the issuance of a VAT invoice or receipt. (Commissioner of
internal Revenue v. Cebu Toyo Coqjoration, 451 SCRA 447)
251
returning residents and nonresident citizens coming to settle in the
Philippines;
d. Importation of professional instruments and
implements, wearing apparel, domestic animals, and personal
household effects belonging to persons coming to settle in the
Philippines;
e. Services subject to percentage tax under Title V of
the Tax Code;
f. Services by agricultural contract growers and milling
for others of palay into rice, corn into grits and sugar cane into raw
sugar;
g. Medical, dental, hospital and veterinary services
except those rendered by professionals;
h. Educational services rendered by private educational
institutions, duly accredited by the Department of Education
(DEPED), the Commission on Higher Education (CHED), the
Technical Education A n d Skills Development Authority (TESDA)
and those rendered by government educational institutions;
i. Services rendered by individuals pursuant to an
employer-employee relationship;
, j. Services rendered by regional or area headquarters
established in the Philippines by multinational corporations which
act as supervisory, communications and coordinating centers for
their affiliates, subsidiaries or branches in the Asia-Pacific Region
and do not earn or derive income from the Philippines;
k. Transactions which are exempt under international
agreements to which the Philippines is a signatory or under
special laws, except those under Presidential Decree No. 529 -
Petroleum Exploration Concessionaires under the Petroleum Act
of 1949;
I. Certain sales by agricultural cooperatives duly
registered with the Cooperative Development Authority (CDA) to
their members and non-members, and certain importation;
m. Gross receipts from lending activities by credit or
multi-purpose cooperatives duly registered and in good standing
with the Cooperative Development Authority,
n. Sales by non-agricultural, non-electric and non-credit
cooperatives duly registered with the Cooperative Development
Authority under certain levels of capital contributions by members;
o. Export sales by persons w h o are not VAT-registered;
p. Sale of .real properties not primarily held for sale to
customers or held for lease in the ordinary course of trade or
252
business, or real property utilized for low-cost and socialized
housing as defined by Republic Act No. 7279, otherwise known as
the Urban Development and Housing Act of 1992, and other
related laws, such as RA No. 7835 and RA No. 8765, residential
lot valued at One million five hundred thousand pesos (P
1,500,000) and below, house and lot, and other residential
dwellings valued at Two million five hundred thousand pesos (P
2,500,000) and below;
q. Lease of a residential unit with a monthly rental not
exceeding Ten thousand pesos (P 10,000);
r. Sale, importation, printing or publication of books and
certain kinds of newspaper, magazine, review or bulletin;
s. Sale, importation or lease of passenger or cargo
vessels and aircraft, including engine, equipment and spare parts
thereof for domestic or international transport operations under
certain conditions;
t. Importation of fuel, goods and supplies by persons
engaged in international shipping or air transport operations under
certain conditions;
u. Services of banks, non-bank financial intermediaries
performing quasi-banking functions, and other non-bank financial
intermediaries; and
v. Sale or lease of goods or properties or the
performance of services subject to VAT, the gross annual sales
and/or receipts do not e x c e e d the amount of One million five
hundred thousand pesos (P1,500,000). [NIRC of 1997, Sec 109 (1),
as amended by R. A. No. 9337; Rev. Regs. No. 16-2005, Sec. 4.109-1
(B)l
w, Exemptions from V A T of certain purchases of senior
citizens. (Rep Act No. 9994, the "Expanded Senior Citizens Act of
2010", which amended Rep. Act No. 7432, and Rep. Act No. 9257)
253
producing foods for human consumption;
2) and breeding stock and genetic materials
therefor. [NIRC of 1997, as amended by Rep. Act No. 9337, Sec
109(1) (A), l " p a r ]
254
packaging, such as shrink wrapping in plastics, vacuum packing,
tetra-pack, and other similar packaging methods Polished and/or
husked rice, corn grits, raw cane sugar and molasses, ordinary
salt, and copra shall be considered in their original state. [NIRC of
lh n d
1 9 9 7 , as amended by Rep. Act No 9337, Sec 1 0 9 ( 1 ) (A), 4 par., 2
,d
and 3 sentences]
255
Sec 109 (1) (B)J
IMPORTATION OF P E R S O N A L A N D HOUSEHOLD
EFFECTS BY RETURNING RESIDENTS A N D N O N -
RESIDENT CITIZENS C O M I N G TO RESETTLE THAT
A R E EXEMPT F R O M V A T
256
be exempt from the payment of customs duties:
a. ' Returned personal and household effects; and
b. Personal and household effects purchased abroad.
257
2) that he is a national who has stayed in a
foreign country for a period of al least six (6) months abroad;
3) that they are not in commercial quantities
nor intended for barter, sale or hire;
4) - that he has not previously received the
benefits under this subsection within 365 days prior to his
arrival.
d. That the articles shall accompany him upon his
return, or arriving within a reasonable time which barring
unforeseen and fortuitous events, in' no case shall exceed sixty
(60) days after the owner's return
e. That the total dutiable value shall not exceed Ten
Thousand Pesos (P10,000.00)
f. If the total dutiable value of the personal and
household effects (except luxury items), shall be in excess of Ten
Thousand Pesos (P10,000), the same shall be subject to a fifty
percent (50%) ad valorem duty across ihe board [TCCP, Sec. 105
(f), numbering and arrangement supplied]
NOTES AND COMMENTS: It seems that the provisions of CAO
No. 7 - 72 do not find application because of the amended provisions of
Sec. 105 TCCP CAO No 7-72 provided a cap of only P2.000.00.
258
Act No. 6768, as amended by Rep. Act No 9174, which reads "The
privileges granted under this Act shall be in addition to the benefits
enjoyed by the balikbayan under existing laws, rules and regulations." It
may also be that an overseas contract worker may be entitled to all of
three (3) kinds of privileges.
9. G o v e r n m e n t e m p l o y e e s entitled to conditionally
free importation (exemption from customs duties) of
personal a n d household effects including a motor car.
a. Any officer or employee of the Department of Foreign
Affairs, including
b. any attache, civil or military, or member of his staff
assigned to a Philippine diplomatic mission abroad, or
c. any A F P military personnel detailed with the SEATO
or
d. any A F P military personnel accorded assimilated
diplomatic rank on duty abroad. (TCC, Sec. 105, last par)
259
once every four years;
e. The officer or employee concerned must have served
abroad for not less than two years. (TCC, Sec 105, last par)
260
aircraft, machinery, other goods for use in the manufacture and
merchandise of any kind in commercial quantity;
b, the importation must belong to persons coming to
settle in the Philippines, for their own use and not for sale, barter
or exchange, accompanying such persons, or arriving within ninety
(90) days before or after their arrival, upon the production of
evidence satisfactory to the Commissioner of Internal Revenue,
that such persons are actually coming to settle in the Philippines
and that the change of residence is bona fide. [NIRC of 1997, as
amended by Rep. Act No. 9337, Sec. 109 (1) (D)J
261
or television broadcasting whose annual gross receipts of the
preceding year do not exceed Ten Million Pesos (P10,000,000.00)
and by franchises of gas and water utilities. (NIRC of 1997, as
amended by Rep Act No 9337, Sec 119)
e- Service rendered for overseas dispatch message or
conversation originating from the Philippines. (NIRC of 1997,,
Sec. 120)
f. Services rendered by any person, company or
corporation (except purely cooperative companies or associations
) doing life insurance business of any sort in the Philippines. (Ibid.,
Sec. 123)
g. Services rendered by fire, marine or miscellaneous
insurance agents of foreign insurance companies. (Ibid, Sec. 124)
h. Services of proprietors, lessees or operators of
cockpits, cabarets, night or day clubs, boxing exhibitions
professional basketball games, jai-Alai a n d race tracks. (Ibid, Sec.
125) and
i. Receipts on sale, barter or exchange of shares of
stock listed and traded through the local stock exchange or
through initial public offering. (Ibid., Sec. 127)
262
3. Telecommunications c o m p a n i e s are exempt from
the Value-Added Tax (VAT), on their overseas
messages. Telecommunications companies, are subject to
percentage taxes for service rendered for overseas dispatch
message or conversation originating from the Philippines. (NIRC of
1997, Sec. 120) Since these services are subject to percentage
taxes under the NIRC of 1997, Title V, they are exempt from the
payment of the value-added tax (VAT). [NIRC of 1997, as amended
by Rep. Act No. 9337, Sec. 109 (1) (E)]
263
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, the above doctrine finds application to the others.
264
companies.
265
1) the Department of Education (DEPED),
2) the Commission on Higher Education (CHTfD),
3) the Technical Education And Skills
Development Authority (TESDA) and those
b. rendered by government educational institutions
[NIRC of 1997, as amended by Rep Act No 9337, Sec 109 (1) (H)]
266
a) affiliates,
b) subsidiaries or
c) branches
(1) in the Asia-Pacific Region
c. and do not earn or derive income
1) from the Philippines. [NIRC of 1997, as amended
by Rep. Act No. 9337, Sec. 109 (1) (J)]
G R O S S R E C E I P T S F R O M LENDING ACTIVITIES
BY CREDIT OR MULTI-PURPOSE COOPERATIVES
THAT ARE EXEMPT FROM VAT
267
ment Authority. [NIRC of 1997, as amended by Rep A c t N o 9337, S e c
109(1)(M)]
E S S A Y T Y P E S E L F - T E S T S . I t i s r e c o m m e n d e d that you
cover the S U G G E S T E D A N S W E R S and that all answers must be
in writing.giving yourself three (3) minutes per number. If pressed
for time, you could answer mentally but ensure that your answer is
complete.
OBJECTIVE TYPE:
PROBLEM TYPE:
268
E X P O R T S A L E S T H A T A R E E X E M P T F R O M VAT
L E A S E OF A R E S I D E N T I A L UNIT T H A T IS EXEMPT
FROM VAT
269
complete.
OBJECTIVE TYPE;
270
including ^engine, equipment and spare parts thereof for domestic
or international transport operations; Provided, that the exemption
from V A T on the importation and local purchase of passenger
and/of cargo vessels shall be limited to those of one hundred fifty
(150) tons and above, including engine and spare parts of 9aid
vessels; Provided, further, that the vessels be imported shall
comply with the age limit requirement, at the time of acquisition
counted from the date of the vessel's original commissioning, as
follows: (i) for passenger and/or cargo vessels, the age limit is
fifteen years (15) years old, (ii) for tankers, the age limit is ten
(10) years old, and (iii) For high-speed passenger cars, the age
limit is five (5) years old, Provided, .finally, that exemption shall be
subject to the provisions of section 4 of Republic Act No. 9295,
otherwise k n o w n as "The Domestic Shipping Development Act of
2004." (NIRC of 1997, as amended by Rep. Act No 9337, Sec. 109 (1)
(S)l
I M P O R T A T I O N O F FUEL. G O O D S A N D SUPPLIES
T H A T A R E E X E M P T F R O M VAT
271
sons engaged in international shipping or air t r a n f p q r t
operations that are subject to the Value-Added Tax
(VAT). The portion of the imported fuel, goods or supplies that is
a. used in the transport of goods and/or passenger from
a port in the Philippines directly to a foreign port
b. but stops at any other port in the Philippines. [NIRC of
1997, as amended by Rep. Act No. 9337, Sec. 109 (1) (T)]
272
various Supreme Court decisions that interpreted the provisions of the
NIRC of 1997 on VAT, subjecting pawnshops to VAT, where the factual
antecedents took place before the amendatory provisions of Rep Act No
9337 took effect. Among such rulings are those made in First Planters
Pawnshops, Inc., v. Commissioner of Internal Revenue, 560 SCRA 606
273
husband and wife could avail of the exemption.
b. The husband had receipts amounting to P1,700,000 00
while the wife had receipts of P 1 , 0 0 0 , 0 0 0 . 0 0 . Only the husband would be
subject to VAT, the wife is exempt.
OBJECTIVE T Y P E :
PROBLEM TYPE: t
274
QWtiers in Greenhills Tdwer, San Juan,City. To be able to
reduce the association dupe being collected from the unit
eWners, the Board bf Directors bf the Corporation decided to
l e a s e part of the ground floor Of the condominium building to
DEF Savings Bank for P120,000 a month or P1.44 million for
the year, starting January 2009*
a. Is the non-stock, don-profit association liable for
value-added tax in 2009 ? If your answer Is In the negative, Is
it liable for another kind of business tax ? (BAR: 2008, dates
supplied!)
SUGGESTED ANSWER: No, because its rentals did not exceed
P1,500,000:00 annually. It shall be subject to the 3% percentage tax.
b. Will the association be liable for value added tax
in 2010 if It increases the rental to P150,000 a month
beginning January 2010 ? Explain. (BAR: 2008, dates
supplied)
SUGGESTED ANSWER: Yes, because its gross sales would then
exceed P1,500,000.00 annually
275
b. Services rendered by Jake's Construction
Company, a contractor to the World Health Organization in
%
276
Taxation
Volume 111
with
ABELARDO T. QQMONDON
AB, BSC. LLB. MA, l i f t , DCL ( C a n d . )
Lawyer-CPA-Customs B r o k e r
Pre-Bar Reviewer: University of the Philippines Law Center,
Ateneo de Manila University/ University of Santo Tomas, San
Sebastian College - Recoletos, P R I M U S Management Unlimited
Services, Inc., Lex Reviews and Seminars, Inc., Faculty Member:
Graduate School and Civil Law University of Santo Tomas,
Adamson University, University of the East, Pamantasan ng
Lungsod ng Maynila, . Former: Chairman, Board of Accountancy,
Chairman, Continuing Professional Education Council for CPAs,
Professional Regulation Commission; World Bank Consultant
Former Pre-Bar Reviewer: Far Eastern University, Lyceum of the
Philippines, MLQ University, Arellano University, University of
Manila, Cosmopolitan Review Center, etc. Former Executive:
Motorola (Phils.), Inc., T M X ( P h i l s ) , Inc., ESSO Standard Fertilizer
& Agricultural Chemicals, Inc., Ford Phils., Stamping Plant,
Philippine Geothermal, Inc., Honiron Phils. Inc.
AMEN
AMEN
ij
P R E F A C E T O T H E 2 0 1 0 T E N T H EDITION
(How To Use the Book)
T h i s 2 0 1 0 T e n t h E d i t i o n o f V o l u m e III i s part o f t h e
u p d a t e d s e r i e s o f T a x a t i o n b o o k s w r i t t e n b y t h e a u t h o r that
s e e k s t o a d d r e s s t h e n e e d s o f b o t h bar r e v i e w e e s , C P A
L i c e n s u r e B o a r d e x a m s r e v i e w e e s , l a w a n d b u s i n e s s law
students. Tax practitioners (whether lawyers, CPAs,
professors of taxation, tax consultants, or tax agents) may
a l s o u s e this B o o k a s a h a n d y r e f e r e n c e b e c a u s e i t d i r e c t s
the reader to t h e f o u n d a t i o n of taxation. This foundation
w o u l d assist i n t h e i n t e r p r e t a t i o n o f p r e s e n t t a x l a w s , g u i d e s
the reader to further r e s e a r c h , as well as point the direction
o n h o w t o craft f u t u r e t a x l e g i s l a t i o n .
T h i s V o l u m e i s i n t e n d e d t o b e a c o m b i n a t i o n text a n d
reviewer. In order to facilitate t h e reader's understanding,
the concepts are g r o u p e d together to facilitate an integrated
grasp of the subject. T h e d i s c u s s i o n s are detailed, but there
are marks to guide the reviewee on what areas he should
focus during the review. Bar reviewees should concentrate
on the questions involving c o n c e p t s a n d should ignore the
computational problems while CPA reviewees,
business/commerce a n d law students should study both the
questions involving concepts a n d computational problems.
iii
students The " E S S A Y T Y P E S E L F - T E S T S " were culled
from previous Bar questions, decided cases, and
hypothetical questions. T h e " M U L T I P L E - C H O I C E T Y P E
SELF-TESTS" were prepared using A I C P A and PRC/Board
o f A c c o u n t a n c y t y p e o f q u e s t i o n s , a s w e l l a s after P h i l i p p i n e
Bar a n d Multi-State Bar Examination (MBE) questions. T h e
suggested a n s w e r s are p l a c e d directly under t h e q u e s t i o n s
t o facilitate c o m p a r i s o n w i t h t h e a n s w e r o f t h e r e a d e r . T h e
reader should cover the suggested answer before he
p r e s e n t s his o w n a n s w e r , o t h e r w i s e t h e p u r p o s e b e h i n d t h e
sections would be negated.
iv
would prove invaluable not only for B a r and CPA Board
Reviewees, but also for undergraduate law and commerce
students. The author earnestly solicits comments in order to
further improve this work.
ABELARDO T. D O M O N D O N
v
TABLE OF CONTENTS
Volume III
Chapter Page
2. ESTATE TAXATION
A. Imposition of the Estate Tax
Imposition of Estate Taxes 10
Situs of Estate Taxation 12
B. Common Definitions that apply to all
Gross Estates whether of Decedent
Filipinos, Resident Aliens and Non-
Resident Aliens 13
C. The Gross Estate of Decedent Filipinos
and Resident Aliens 17
D. The Gross Estate of Decedent Non-
Resident Aliens 22
vi
Chapter Page
at the Time of His Death 26
Transfers in Contemplation of
Death 29
Revocable Transfers 37
Property Passing Under General
Power of Appointment 39
Transfers for Insufficient
Consideration 45
Life Insurance Proceeds 45
Capital of the Surviving
Spouse 57
F. Exempt Acquisitions and Transmissions
hence not included in all Gross Estates
whether of Decedent Filipinos, Resident
Aliens or Non-Resident Aliens 58
Merger of the Usufruct in the
Owner of the Naked Title is Excluded
from Gross Estate 59
Transmission From the Fiduciary
To the Fideicommissary Heir is Excluded
From Gross Estate 59
Transmission From the First Heir
To another Beneficiary in accordance
With the desire of the predecessor is
Excluded from Gross Estate 62
Transfers To Social Welfare,
Cultural and Charitable Institutions are
Excluded from Gross Estate 63
Acquisitions and Transfers of
Intangible Personal Property are
Excluded from Gross Estate subject
to Reciprocity 64
G. Common Valuation Rules for All Gross
Estates whether of Decedent Filipinos,
Resident or Non-Resident Aliens ,,,, ,. . 65
H. Deductions from the Gross Estate to
vii
Chapter Page
arrive at the Net Estate
Deductions, In General 69
Expenses that are Deductible
from the Gross Estate of Decedent
Filipinos and Resident Aliens 71
Claims that are. Deductible from
the Gross Estate of Decedent Filipinos
and Resident Aliens 76
Indebtedness that are Deductible
From the Gross Estate of Filipinos and
Resident Aliens 82
Losses that are Deductible from
the Gross Estate of Filipinos and
Resident Aliens 82
Taxes that are Deductible from
the Gross Estate of Filipinos and
Resident Aliens 83
Expenses that are Deductible
from the Gross Estate of Non-Resident
Aliens 84
I. Items that are Deductible from the Gross
Estate of Filipinos and Resident Aliens
but are not deductible from the Gross
Estate of Non-Resident Aliens
Deductions for the Value of
the Family Home 85
Standard Deduction 87
Deductions for Medical
Expenses 89
Amount received under Rep.
Act No. 4917 90
J. Common Items that are Deductible
From all Gross Estates whether of
Filipinos, Resident Aliens and Non-
Resident Aliens
Property Previously Taxes
viii
Chapter Page
(Vanishing Deduction) 91
Transfers for Public Use 95
Net Share of the Surviving
Spouse in the Conjugal Partnership
Property 95
K. Administrative and Other Require-
ments: Notices, Returns
Notice of Death 96
Estate Tax Returns 97
L. Collection and Payment of Estate
Taxes
Exemption from the Payment
of the Estate Tax and Tax Credits 103
Collection of the Estate Tax 105
Liability for the Payment of
the Estate Tax 107
Place for Payment of Estate
Taxes 111
Time for Payment of Estate
Taxes 112
Effects of Payment,
Deficiency in Payment or Failure
to Pay the Estate Tax 118
3. DONOR'S TAXATION
A. Introduction 124
B. Donor's Tax Base and Rate
Donor's Tax Base 133
Situs of Donor's Taxation 136
Donor's Tax Rates 139
C. Exempt Donations and Tax Credits
Exempt Donations, In general 142
Exempt Donations if Total Net
Donations during the Calendar Year do
1 4 2
Exceed P100.000.00
Exempt Donations for Political
ix
Chapter Page
Campaign Purposes 146
Exempt Donations of Residents .... 148
Exempt Donations of a Non-
Resident Alien 152
Exempt Donations for Athlete's
Prizes and Awards 154
Exempt Donations under the
"Adopt-A-School" Program 155
Tax Credits for Foreign Donor's
Taxes 156
D. Donor's Tax Returns and Payment of
Donor's Taxes 156
4. VALUE-ADDED TAX
A. Introduction
Definitions and Purposes 163
Nature or Characteristics
of VAT 165
B. Various VAT Methods and Systems,
and Zero Rating
Various VAT Methods and
Systems 170
The Concept of Zero-Rating 171
Zero-Rated Sales of Goods or .
Properties 174
Zero-Rated Sales of Services
and Use or Lease of Properties 179
C. Liability for Value-Added Tax (VAT)
Transactions subject to VAT 184
"In the Course of Trade or
Business" 184
D. Value-Added Tax on Sale of Goods
or Properties
Rate and Base of Value-Added
Tax on the Sale, Barter or Exchange
of Goods or Properties 187
X
Chapter Page
Transactions "Deemed Sale" 189-
E. Value-Added Tax on Importations 191
F. Value-Added Tax on Sale of Services
And Use or Lease of Properties 191
G. Administrative and Compliance Require-
ments, Returns and Payment of the VAT,
Refund or Credit of Excess Input VAT
Administrative Requirements 196
Invoicing Requirements 199
Books of Accounts for VAT
Taxpayers 211
Return and Payment of the VAT .... 224
Electronic Filing and Payment
System 229
Refund or Credit of Excess
Input V A T 238
Tax Refund or Credit of Unutilized
Input VAT of Zero-Rated Transactions 243
H. VAT-Exempt Transactions
VAT-Exempt Transactions,
In general 250
Sale or Importation of Agricultural
and Marine Food Products that are
exempt from VAT 253
Sale or Importation of Fertilizers;
Seeds, Seedlings and Fingerlings; Fish,
Prawn, Livestock and Poultry Feeds that
are exempt from VAT 255
Importation of Personal and
Household Effects by Returning
Residents and Non-Resident Citizens
coming to resettle that are exempt
from VAT 256
Importation of Professional
Instruments and Implements, Wearing
Apparel, Domestic Animals and
xi
Cnapter Page
Personal Household Effects by
Persons coming to settle in the Philip-
pines that are exempt from VAT 260
Services subject to Percentage
Tax under the NIRC of 1997, Title V,
that are exempt from VAT 261
Services by Agricultural Contract
Growers and Milling for Others that are
exempt from VAT 265
Medical, Dental, Hospital and
Veterinary Services that are exempt
from VAT 265
Educational Services rendered
by Private Educational Institutions
that are exempt from VAT 265
Services rendered by individuals
that are exempt from V A T 266
Services rendered by Regional
or Area Headquarters of Multinational
Corporations that are exempt from VAT.. 266
Transactions under International
Agreements that are exempt from VAT ...267
Sales or Importation by Agricul-
tural Cooperatives that are exempt
from VAT 267
Gross Receipts from Lending
activities by Credit or Multi-Purpose
Cooperatives that are exempt from
VAT 267
Sales or Importation by Non-
Agricultural , Non-Electric and Non-
Credit Cooperatives that are exempt
from VAT 268
Export Sales that are exempt
From VAT
Sale of Real Property Not
xii
Chapter Page
primarily held for Sale to Customers or
held for Lease in the ordinary course
of business 269
Lease of a Residential Unit that
Is exempt from VAT 269
Sale, Importation, Printing or
Publication of Books, Newspaper,
Magazine, Review or Bulletin that are
exempt from VAT 270
Sale, Importation or Lease of
Vessels and Aircraft that are exempt
from VAT 270
Importation of Fuel, Goods and
Supplies that are exempt from VAT 271
Banking and Services of Non-
Bank Financial Intermediaries that are
exempt from VAT 272
Sales or Receipts that are exempt
From VAT 273
Certain Sales to Senior Citizens
that are exempt from VAT 274
xiii