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    Republic of the Philippines Supreme Court Manila FIRST DIVISION COMMISSIONER oF G.R.No. 241424 INTERNAL REVENUE, Petitioner, Present PERALTA, C.l, Chairperson, CAGUIOA, = versus = J.REVES, JR." LAZARO-IAVIER, and LOPEZ, JI LUCIO L, CO, SUSAN P. CO, FERDINAND VINCENT P. CO, Promulgated AND PAMELA JUSTINE P. CO, FEB 26 2020 walchis Respondents DECISION CAGUIOA, Before the Court is a Petition for Review oa Certiorar' (Petition) under Rale 45 of the Rules of Cout filed by petitioner Commissioner of Internal Revenuc (CIR), assaling the Decision* dated February 28, 2018 and Resolution” dated August 14, 2018 of the Court of Tax Appeals en bane (CTA EB) in CTA EB No, 1522, which affirmed the CTA Third Division's (CTA Division) Decision! dated June 2, 2016 in CTA Case No, 8831 ‘granting respondents’ claim for refund of erroneously paid capital gains tax (can. Chto Ninna la een Me Rnb ad Cather Mann coe ie + ETE, remedy Ancite Isne Erma RFit wih Asin Jeti Decision | GR.No, 241424 | | Facts ‘The fess summarized by the CTA are as follows As of March 2012, he four respondents, Lusi L. Co, Susu P. Co, Ferdinand Vincent P. Co and Pamela Justine P- Co (respondent) calistvely were the mgjriy shareholders of Karcla Management Corporation (Karel), 9 domestic corporation engaged as manager, ‘managing agents, consignor, concession, or supplier of business {engaged inthe operation orbs, supermarkets, groceries and the ke ee mal on oe [Respondens were also shurcholders of Puegol Price Club (Pwregol), 0 eorporton organized under the Philippine laws and Primarily engaged inthe wholesale and real of general merchands, From Puregold's authorized capital stock of S,000,000000.0, 2100,000,000,00 shares were subscribed and fully paid. Respondents ‘owned 65.55% of Puregld's total sutseribed shares xxx | (Ou Mats 27, 2012, the Bow of Dieses of [Paseo] x approved the issuance of 766406250 Puregld common shares 10 {respondents} and [Sy] in exchange forthe transfer to Puregold of the 1,705,125 shares of Kaela. | (On May’ 8, 2012 st he Purgold annul stockholders meting this exchange as approved Hythe stockholders represen svo-inl oF Purepol's outstanding capital stock. (May 11,2012, epee] an (Senet ino a Deed of xchange wi [el wri ey aged attr al tht Karla ‘hae Poel nochange fr Pred shares | Under the Deed of Exchange, respondents) and [Sy] ach would receive four handed fifty (50) Parego shares for every ne (1) Kava share that they would transfer 1 Purgold. Accordingly, Puregol issue {0 [respondets] and [Sy] a ttl of 66,406,280 Puregol sare rn the ‘nisned. portion of 1S authorized capita sock in exchange for the "705,125 Karel shares: | Share sap per Deed of Exchanges ‘Shareholder | No.of Kalla | Nocaf Fureold Shares Shares Transferred to | Exchanged for ‘Puregold Karsla Shares Desison 3 GR No.261024 Taio Co 0 306.5, 500 Susan Co 8.250 306,562,500 Ferdinand T7012 76.640400 o Pamala Co Toa 76510500 ‘Anthony Sy i 150 Total TORS 7.106250 Asa esl ofthe share swap under the Deed of Exchange: 1. Puregld sosuied majority ownership of Karel: and, 2. [Respondents] who, por othe shar sap already cllestively coed 66 3720% ofthe oustanding eaptal stock of Puegold feonsequenly increased thir sloekoldings to 73.8329% ater the sap (Paregot Price Ci tne ‘eore Swap_—_—_[ Afar Sap | Sharcoider [oof Shares] Pecoiage | No.ofShares | Pecenage ‘Gomed | Owmentip | Owned | Ovnersip [Kusioco | “raasroaor | s62ran% | Tosasre.02| 37 2660% [Susan Co [539,601,310 ao susors | s16.28.810[ s0s904% Ferdinand) — 3888.56 | 1684344) 110326758 | 3.98817 | ca PamdaCo | _s36s6ass| Loss| _tos2ersé | —sanTs “Toa {:311tang20 | 65 s720% | Zovrs6,520 | T5.8529%, Toul 00 00.000 2,766406250, Sulseribed Capital - ‘On June 26 and 28, 2012, (respondents) collectively pad capita, tins tx (COT including incre anor eompromise penalty on the aid transfer pursiat to Section 24(C) ofthe Nana lara Revenue Code (oF 1997 [NIRC) as amended. xxx [Responds however, contend hat thei payments of CGT wre ‘roneous becuse under Section 40(C}2} ofthe NIRC, thei taser of ‘Shares tough the Deod of Exchange was aexerp wansction. ‘Thus, on May 21,2014, oF within dhe two-year preserve piod provided under Section 204(2) of the NIRC of 1997, a8 amended: [respondents] filed their administrative cine for refund of the COT Incaing itrest andor compromise penalty ih thir respective even Disriet Otc (RDO), [Dee to the CIR’ ination, respondents ill Petition fr Review ‘withthe CTA Division Decision co4 GR. No. 241424 Inthe Anse CR allege at Reve Repulsns No. 200), evene Soman One Now 35301 an 72008 ove etter coin einer etchant wich eed ws iy oner eal of ie omseepiton of pe sae Soden olen) Stay fre re apm on tee change tp apledon fe DIK creat ng ms fv en sce feces, sh ret ee Bik wasnate atopy he Ct cool tha se ind ina ee ron sys tray cmon ef sgh by itSpandens] ul be ae mn Reply, tespondents contend that it was imposible for them co sake any por rue for ruling since they wore not swe Ha hie feansction as in foet tf which, thus esublshes tht their CGT payments were errneously paid. Further, chey maintained that Section 4OC\Q) of the NIRC, or any other provision of lw or any existing Jwispadense doesnot imps such condition After © Pro‘Tial Onder was issued, respondents commenced presentation of thst” witnesses, nanely, Mary'S. Demi, their Ebultant on accounting of peronal Branca tawsactons, and Aty Candy, Dacanay-Datuon, the Comprate Secretary of Karela and ‘Asstt Cororte Seeetar of Preys” | Witness Mary S Demotile, destrod thet as [Fespondent’] consultant on astoustng of personal Tina transactions for aiost 5 ‘oars, she othe accounting and compuaton of tax forthe subject shire Sap transaction, By vitue of the Deed of xchange dital May 11, 2012, {respondents} and [Ss] tansfered 1,703,128 [ot] thei Kari sommon Shores to Parepold Price Club, Inc. Ia run, [respondents received “4.406250 common shires in Purogold. At the ime of th wansaeson, ‘oreila shares had parva of PIO.00 per sare, wile Paregold a 2 fr value of P2150 por shre. For the sid shure swap transaction, frespondents} aid CGT of P1647 915,20007, icuding inerest and penal on June 26 and 28.2012. Such payments of COT, itcuing interest and penalty were reflected in [respondents] Anaual Income Tax Retums (AITRS) forthe year 2012, 1 (On May 21, 2014, espondsni) separately filed administrative ‘lis fr rela of the eroeusly pad CGT withthe respective RDO Follomed by thee ling of BIR form No, 1916 or the Appliation or Ta ‘Credits Refund, for wich she was consulted. She Feared about the tal fling of seh claims for refund only when she was preparing for her testimony hefre the Cott The si aminsative elas for relund were fot acted upon by [the CIR] Decision 5 GR.No. 241024 Atiomey Candy H. Dacanay-Dutuon, the Corporate Secretary of Kamila since 2004 and the Assstint Corporate Secretary of Puegold ‘since 2011, efi thal se isthe custodian ofthe recon ofthe shares of ‘osks of Karla and Puegold. She prepres and les the reportorial feauirements under the lav of both enuiex Karella is a domestic omoration whose primary purpose is to act ae manager, managing ‘gens, consigor,concesionite oF supplier of businesses engaged in ‘anuficuring or trading of general merchandise, the operation of resorts, hotels, supermarkets, groceries and the like, Paregld is also a domestic omoration whose pamary purpose Isto engage In the wholesale and ‘el of peneral merchandise. ‘She furtber sted tht respondents) are shareholders of both corporations. Under a Desi of Exchange dated May 11, 2012, [Gespondeats} with (Sy, transfered their 1,708,125 common shares in Kayeila to Puregold in exchange for 766,406,250 common shares of Puregod Leio Coan Stan Co each transfered 681280 Karla shares in exchange for 306,562,300 Puregold shares, while both Perdinand Co and Pamela Co each uansfened. 170,312 Kasella. shares for 76,640,400 Purepod shares, The 1703125 Katela shares wete valued at P16.467 billion or 9,658.7 por share, while the 766,405,280 ‘Prepoldshars had subscription pice of P16.477,74,35.00 or P2150 per share ‘Asa consequence ofthe share sap, Puregold acquited ownership ‘ofa 1,703,125 Katala shares, whe [respondents] and [5] were each ‘iven in tis! onc share or 0001% of Karla On the other ban, [respondenis] collectively owned 1,331.440820 Puregold. shares of 16.35% ofthe outstanding capt stock of Purgold. Aer the share swap, [respondents guined. fuer contol of Purgold as their collective shareholdings teen increased om 66.59% t0 75.83% ‘The amount of P1,647,615,29007 CGT was paid forthe share sap transaction, inctodng interest and pena, and this amount isthe fue ofthe fsant lam for refund, ‘Wats the admission of all its evidence, [respondents] rested thei ‘On the other han, the CH) id not present any evidence on the round that no investigation report was submited 1 [is] counsel.” CTA Division Ruling On June 2, 2016, the CTA Division rendered Decision granting respondents’ claim for refund, the dispositive potion of which reads: Desision 6 GR.No, 241404 WHEREPORE, the inant Psion fr Reviw i heehy GRANTED. Ascordng rand Comision of intra Reve SiGtty DIRECTED 1 REFUND infor of piney Las Co, Suan Co Fefinand Co, nd Panes Cote anne PES.085250, FeSoosngoao, 6a Hot Ras and Mes 15717 54 respecte oF ‘ot amount of 1F76133500,reeing eons pl pi saint SOORDEREDS “The CTA Division found that the administrative and judicial claims for refund were timely filed. Aecording to the CTA Division, respondents" Tegal counsel, Zambrano and Gruba Law Offices, had the authority to represent respondents in their administrative claims for refund filed with the CCIR even ifthe Special Power of Attomey was notarized only aftr its filing. i ‘The CTA Division further held that all the requisites for the non- recognition of gain or loss under Section 40(CX2) of the National Interna’ Revenue Code (NIRC) of 1997, as amended, which effectively exempts the transition rom income tx, al presen in this ease.” ‘The CTA Division also brushed aside the CIR's contention that respons filed to comply with the Bureau of Inemal Revenve (BIR) TSsumets relating to ie ns exemption under Section 4(CX2), parry the requcment of seeking a prior BIR Ruling. According v0 the CTA Division, respondents could not be expected to obtain a BIR Ruling for tax txemplion a hey previeusly believed hat they were Hable op the sare Based on ihe conpulation and. recommendation of their accounting Consultant. The CTA Division also noted tha the BIR issances cited by th CIR are mere guidelines in monitoring tax-free exchange of property and ity dtteemining the gain ot lose on a sebocquent ale or dapesgon of sch propery. Ths, respondents cannot be deprived of thet claim for refund imply because the failed to comply with sald guidelines" The CIR moved for reconsideration but the same was denied by the CTA Division inits Resolution" dated September 1, 2016 On appeal to the CTA EB, the CIR claimed that the tx exemption in Section 40(C)\2) of the NIRC of 1997, as amended, does not cover the subject share swap transaction because Fespondents, prior to the exchange already had control of Puregod," 1 Id weit, Pom by Asoc ce Eger R Fan Vitara, wih Avec ass fe oe Decision , GR. No. 241424 CTA EB Ruling In the assailed Decision, the CTA EB affirmed respondents’ entitlement to refund, ‘The CTA EB ruled that following the Court's pronouncement in the case of Commissioner of Internal Revenue v. Filinvest Dev't. Corp. (Finest), Section 40(C)2) covers instances of further contol, when, as @ result of the exchange, the tansferors collectively increase their control of the wansferee corporation, as in this case." ‘The CTA EB reiterated the Division's ruling that respondents’ ‘counsel was properly authorized to file the administrative claim on their behalf. The CTA EB also held that, contrary to the CIR’s claim, a prior ‘confirmatory ruling is not a condition sine qua non for the availment of tax ‘exemption and a claim for refund of erroneously paid tax." ‘The CIR moved for reconsideration but the same was denied by the CTA EB in the assailed Resolution Hence, this Petition, ‘Whether the CTA EB erred in finding that respondents are entitled 10 the elaim for refund for erroneously paid CGT. ‘The Court's Ruling ‘The Petition lacks mes The subject transaction falls under Section 40(C)2) of the NIRC of 1997, as amended Respondents anchor their claim for refund on the tax-fee exchange provision under Section 4(C\2) of the NRC of 1997, as amended, Said provision reads (©) Bichange of Proper: 6 323,513 BOT Decision 5 GR.No. 24104 “No gain or fs sal also be recognized if popety is transferred to w corporation by a person in exchange for stock or unit of patptin in sucha comporation of which es a esl of sich exchange sad perso, ‘lone or together with oer, nol exceeding Tour (4) persons eins contol fof sid corporation: Provided, That teks sued for services shall not be ‘onsidered a sue i eta for propery] In relation thereto, Section 40(C)6\() of the same Code defines the term “control” as “ownership of stocks in a corporation possessing at least fifiy-one percent (51%) of the total voting power of all classes of stocks entitled to vote.” | | Based on the foregoing, the requisites forthe non-recognition of gain ‘or loss are as follows: (a) the transferee is a corporation; (b) the transferee exchanges its shares of stock for propertyies of the transferor: (c) the transfer is made by a person, acting alone or together with others, not ‘exceeding four persons; and, (d) as a result of the exchange the transferor, ‘alone or together with others, not exceeding four, gains control of the wansferee."™ 1 _As regards the element of conto, the Court, in Fiinvest, clarified that is not necesstry that, after the exchange, each of the transferors individually gains control of the transferee corporation. It also does not prohibit instances when the transferor gains further control of the transferee Corporation, The Court explined thatthe element of control is satisied even if one of the transferars is already owning at least 51% of the shares of the transferee corporation, at long as after the exchange, the transferors, not more than five, colletively increase their equity in the transferee corporatior by 51% or more In the said case, Filinyest Development Corporation (FDC) and Filinvest Alabang Incorporated (FAL), entered into « Deed of Exchange with FFilinvest Land Incorporated (FI), whereby the former both transferred in favor ofthe latter parcels of land in exchange for FLL shares." Prior to the exchange, FDC owned 80% of FAI and 67.42% of FL. After the exchange, FDC retained 80% ownership of FAI but deereased its ownership of FLI t0 ‘only 61.03%, As a result, FDC together with FAL owned 70.99% of FLL” ‘The Court held that neither FDC nor FAL is Hiable for income tax because both collectively gained control of FLI, the transferee corporation, ssaresllofthe exchange: ‘Then as nom, the CIR arp tht table gain should be recogni forte encange considering tht FOC onoing net 9 11a stl doen ear toro. For id purpose, he CIR Sisto thee tn por To he exch, FDC on = Gms free Filme Der Cm sp Ha AZ 2,537.358,000 oF 674296 of FLI's 3,763535,000 outstanding capital ‘sock Upon the isuance of 443,094000 addtional FL shares ‘onsequence of the exchange and with only 42,217,000 thereof accring in Fivor of FDC for a tla of 2879-575,000 shares, said corporation's ontoling interes was spas reduced to (6,039 when reckoned {fom the transferees aggresue4,226,529.000 oustanding shares, Without ‘wing «sare frm F's nil 3,763,535, 000 oustanding shares, onthe ther hand, FAs aegis of 42,877,000 FLE shares sa esl ofthe xchange purportedly resiled i ils consol of only” 2.96% of said Irasferee ‘comoration’s 4226629,000 oustanding shares On the Principe tht the transation dd ot gui etatee exchange andor Sewtion 34 (e) (2) ofthe 1993 NIRC, the CIR asseverates that taxable gain inthe sam of P263,388 921.09 shouldbe recognized onthe part of FDC tin hes of P3088,711367 0 on the pa of FAL “The paucity of merit in the CIR’ positon is, however, evident ‘om the categorie! language of Section 34 (@) (2) of the 1993 NIC which provides that gain or Toss wil not Be reeoanized in case the {xchange of propery for stocks results in the conto of the transferee by the ratte alone or wit ether wansferors not exceeding four persons. Rather than isolating “ke same as proposed by the CIR, FDCs 2579-57500 shares or 61.03%. contol of FLI's 4226.62.000 ‘Sultan sacs should, deefre, be apprecited in combination with the 420,877,000 new srs sued to FAI whch represen 9 96% conta ‘of sai transferee corporation. Together FOC's 2879.575000 shares (61.03%) and. FAs 420877000 shares (896%) clearly “add up to $045,000 shares or 709% of FLI's 226,629,000 shares. Sine the com entorhinal of sake over of ote” ander Section 31 pr of lass of ths eile tone vote” unde Scion 30616) the 1998 NIRC. the exchange of property far stocks between EDG. FAL and FLL clear aualify asa tscfse (ransction under Agia the clear enor of Section 34) (2) of the 1993 NIRC, tbe CR cites then Supreme Cott Justice lowe Vtg and CTA dustice Eresto 1. Acosta who, intr book Tes Lav and Jrisgradnce, pine tht tk provision could be inippicable if contol is alkealy vested in the September 2002 Decision in CTA Cate No, 6182 upholding the as ‘exempt satus of te exchange between FDC, FAL and FLI was penned by oles than Justice Acosta hisel, FDC and FAL significantly pont out that said authors have seknowiedge that the position taken by he BI is 'o the eflect that “he law would apply even when the exchanger ‘This was confined whea, apps ta FLT request for lariicaton about the change of percentage of ovnersip of Is outstanding capital soc, the BIR opined as follows ‘ovine ame i reece Lin {1% of etal volte pover aa clases of ky eed fo Ye Coto ‘erm the sna et ese tl re te or res {Srvenes tye tuorr eee deeming SP ack ove Decision ° GR. No 244424 Desision 0 GR. No. 241404 nt thw ens wh tani! i ck in sane easton my be Sted estes re (BN Rag No 579 Gal Ovmer 5.18) At any et ao apes hat the suposed eatin of FOC's shares in LI posi hy he IR ise aparent than re AS the Uncontested ome f 80% of he ous hes of FA st camot be nino th PD Mclly coms the sn perearage ofthe 420,877,000 Shares issued tos totansteor which y il resets 7.968% ofthe outstanding shes of FL Considered alongside FDC's 61.03% Gott of FL a» cossqance of the 39 Noventer 1996 Deal of Transfer sud 79689 ad op tan aggregate of 68998% of sad trafece corporat ous share tock whi is evide tll {Een than the 672% FDC aly bed po wo the exchange. THis ‘och wade hy the pls inthe 1 Febery 201 Stpltion of Foc, Documents and sues thy submited tthe CTA. Inasmuch as {he combined ownership of FDCand FAL of Ls ou ransfrors can be bel fie ‘Sscand onthe supposed gain which led from the subject eater | ‘Thus, based on Fifnvest, the CIR clary has no basi ohm hat the share swap transaction between respondents and Puegold i nt coveted by the tx ff exchange as provided in Section 40(CX2) in elation to Section 40(CKOxe) ofthe NIRC of 1997, a amended. Ii undisputed that afer the xchange, respondents collectively increased their control over Pureeod fom 6627¥00 75.816. Acconingy eepondent cant be held liable for income taxes on the supposed gain which may have resulted. fom such transfer. The CGT pad by respondents onthe subjet transfer are considered erroneously pad taxes and must perforce be refunded pursant to Section 229" ofthe NIRC of 1997, as amended | Respondents filed «val administrative claim for refund “The CIR, however, ssi the valid and mens of epondents adninistatve claim, which wos fed tgough respondents” counsel of teeord, According tthe Clfy ssh administatve claim was defective cause respondents” countel filed o show in sid lelies that they were wana I mot fete ye a cree eee ares eran nen dec uitece Sac polly epetce ey teers ne bay soe mae Fathi | | Decision u GR. No, 241424 authorized by respondents to file the same on their behalf.*° The CIR further contends that the subsequent submission of a Special Power of Attorney did not cure the defect because the same was filed beyond the «wo-year prescriptive period #* ‘The CIR is mistaken, ‘The filing of the administrative claim by respondents’ counsel of record on behalf of their client gave rise to the presumption that they have the authority to ile the same. This is anchored on the rule that “(a lawyer is, presumed to be properly authorized to represent any cause in which he appears, and no written power of attorney is required to authorize him to appear in court for his client” The presumption in favor of the counsel's authority to appear in Dbehalf ofits elient is a strong one, as it arses from the lawyer's pledge to act with honesty, candor and fiimess and not t0 do any falsehood or ‘nistepresentation ” Ifa lawyer corruptly or willfully appears as an atorney for a party toa ease without authority, he may be diseplined or punished for contempt as an officer of the court who has misbehaved in his official In addition, an atomey's appearance is also presumed 1 be wih the previous knowledge and consent ofthe igen uni the canary is shown. In this case, the presumption of authority of respondents" counsel remains unrebutted becouse the CIR filed o represent any proof othe canry. In any event, the supposed lack of authority of respondents’ counsel ‘of record was thereafter cured when respondents executed a Special Power ‘of Atlomey and submitted the same with the CIR and before the cout «quo ‘The CTA held that the said instrument clearly spells out the extent of authority granted to respondenis" counsel and ratifies all prior aets done in pursuit of said authority, which includes the filing of respondents’ ‘administrative claim for refund, In Land Bank of the Philippines v. Pamintuan Dev't. Co. the Court held that “eatiication retroacts to the date of the lawyer's first appearance and validates the action taken by him.” The effect is as iT respondents themselves fled the administrative claim for refund on May 21, 2014, within eee hi esr Lond tan of he Papin Pann Ca, S10 Pa 9, 200 ig Aap Lea ‘hic, 240 (197 ed). 2. Selo Carl 75 P19 205). * leat 3 Maat Pins Coen, nc Ran, 03 38,385 2017. Sepa at cng Ap Loa ie gente, 2 Pi S698, ing RF COURT. 1 Decision n GR No. 24104 | the wo-year prescriptive period provided under the NIRC of 1997, as amended.” Thus, the Court agrees with the CTA that respondents ‘administrative claim was valid and timely fle. No prior confcmsory rag tentbe for oc mpi nd ‘The CIR also insists that the claim should be denied because respondents filed t0 secure a prior confirmatory ruling that the subject transaction qualifies as a tay-itee exchange.” According 10 the CIR, the Certification or ruling is import 80 «Sto confirm whether the transaetion siistes the conditions set by la; and the authority to do such i vested ‘upon the BIR.” Again, the CIR is mistaken, BIR rulings are the official position ofthe Bureau to queries raised by taxpayers and other stakeholders relative to clarification and interpretation lof fax laws. In this regard, he primary purpose of @ BIR Ruling is simply to determine whether # certain transaction, under the law, is taxable or not based on the circumstances provided by the taxpayer. AS admitted by the CIR, rulings merely operate to “confirm” the existence of the conditions for exemption provided under the law. I ll the requirements for exemption set forth under the law are complied with the transaetion is considered exempt, \hether or nota prior BIR ruling was secured by the taxpayer In practice, a taxpayer often secures a BIR ruling, prior to entering into @ wansaction, to prepare for any tax liability. However, in case ° taxpayer already paid the tax, believing to be liable therefor, and later ov files a claim for refund on the basis of an exemption provided under the law, requiting a prior BIR ruling as condition for the approval of the refund claim is clearly illogical. In ths light, the Court echoes its pronouncement in Deutsche Bank AG Manila Branch v. Commissioner of Iaternal Revenue, to wit i The underlying principle of prior aplieaton with the BIR becomes moot in refund caves, such as The present cas, where the very bso he cli fs romeo or tote is excessive payne arising (om on-avaiiment of tx treaty reli at the fas instance. In this case Deftoner should nat be fated for not complying with RMO No. 12000 Prior the transaction. It could act have applied fr atx treaty relief ‘thin the period preseribed. or 15 days prior to the payment of its BPRT, of Appa 88 2201, % Socbenonal Revene aie Pipe Ts Law Resa esd

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