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4 Taxation Law Animo Notes
4 Taxation Law Animo Notes
TAXATION LAW
Animo Notes 2019
GENERAL PRINCIPLES OF TAXATION
It is described as a destructive power, which interferes with the personal and property rights of the people and
takes from them a portion of their property for the support of the government. (Paseo Realty & Development
Corporation v. CA, GR No. 119286, 2004)
The primary purpose of taxation is to raise funds or property to enable the State to promote the general welfare
and protection of its citizens. (Dimaampao, 2015) Fees may be properly regarded as taxes even though they also
serve as an instrument of regulation. If the purpose is primarily revenue, or if revenue is, at least, one of the real
and substantial purposes, then the exaction is properly called a tax. (PAL v. Edu, GR No. L-41383, 1988)
(2) To Encourage the Growth of Local Industries. It is a settled rule that the power to tax carries with it the
power to grant tax exemptions. Tax exemptions and tax reliefs serve as incentives to encourage
investment in our local industry and thereby promote economic growth.
(3) To Protect our Local Industry Against Unfair Competition. The Tariff and Customs Code allows the
imposition of certain taxes (countervailing and dumping duties) upon imported goods or articles to
further protect our local industry.
(4) To Serve as a Regulatory Measure or Implement of the Police Power of the State. Tax measures are but
“enforced contributions exacted on pain of penal sanctions” and “clearly imposed for a public purpose.
The power to tax has become the most effective tool to realize social justice, public welfare, and the
equitable distribution of wealth.” (CIR v. Central Luzon Drug Corporation, 456 SCRA 414)
(2) As to AMOUNT OF EXACTION. The amount gathered in the exercise of taxation contemplates no limits.
In police power, the exaction is limited to the cost of regulation, issuance of the license, or surveillance.
(3) As to the BENEFITS RECEIVED BY THE TAXPAYER. In taxation, no special or direct benefit is received
by the taxpayer other than the fact that the government secures to the citizen that general benefit
resulting from the protection of his person and property, the welfare of all, and the maintenance of a
healthy economic standard of society. (51 Am. Jur. 42-43, as cited in Dimaampao, 2015)
(4) As to SUPERIORITY OF CONTRACTS. Taxation recognizes the obligations imposed by contracts. (Art.
III, Sec. 10, Constitution) This limitation does not apply to police power.
(5) As to TRANSFER OF PROPERTY RIGHTS. In taxation, the taxes paid form part of the public funds,
whereas police power allows merely the restraint on the exercise of property rights.
(6) As to VALIDITY. Taxation must not be contrary to the inherent and constitutional limitations. In police
power, it must comply with the tests on “lawful subjects” and “lawful means.”
(2) As to COMPENSATION. Payment of taxes accrues to the general benefit of the citizens of the taxing
state. In eminent domain, just compensation is given the owner of the expropriated property.
(3) As to PERSONS AFFECTED. Taxation applies to all persons, property and excises that may be subject
thereto. In eminent domain, only particular property is comprehended.
(4) As to AUTHORITY WHO EXERCISES THE POWER. Taxation is imposed by the government or its
political subdivision. In eminent domain, it is imposed by the Government or public service companies
and public utilities.
Q: Can taxation be used as an implement for the exercise of the police power?
A: Yes. When the purpose of the imposition of a royalty fee upon an oil company is not for the purpose of
generating revenue but a recognition that the oil industry is imbued with public interest, then the royalty fee will
be considered as a regulatory fee.
Simply stated an imposition that is for revenue is generally a tax while an imposition that has another purpose
such as regulation is an exercise of police power. (Chevron v. BCDA and CDC, 2010)
Government projects and infrastructures are made possible through the availability of funds provided through
taxation. The government’s ability to serve and protect the people depends largely upon taxes. Taxes are what
we pay for a civilized society. As the lifeblood of our nation, its collection should be actively pursued without
unnecessary impediment or hindrance. (Commissioner v. Algue, Inc., 158 SCRA 9)
Taxation is a power predicated upon necessity. It is a necessary burden to preserve the State's sovereignty and
a means to give the citizenry an army to resist aggression, a navy to defend its shores from invasion, a corps of
civil servants to serve, public improvements for the enjoyment of the citizenry, and those which come within the
State's territory and facilities and protection which a government is supposed to provide. (Phil Guaranty Co., Inc.
v. Commissioner, 1965)
(2) Inherently legislative/Non-delegability of the taxing power — Only the legislature has full discretion
as to the persons, property, occupation or business to be taxed, provided these are all within the State’s
territorial jurisdiction. It can also finally determine the amount or rate of tax, the kind of tax to be
imposed and the method of collection.
(3) Territorial — Taxation may be exercised only within the territorial jurisdiction of the taxing authority.
Within its territorial jurisdiction, the taxing authority may determine the “place of taxation” or “tax situs”.
(4) International comity — This is a limitation, which is founded on reciprocity designated to maintain a
harmonious and productive relationships among the various states. Under international comity, a state
must recognize the generally accepted tenets of international law, among which are the principles of
sovereign equality among states and of their freedom from suit without their consent, that limit the
authority of a government to effectively impose taxes on a sovereign state and its instrumentalities, as
well as on its property held, and activities undertaken in that capacity.
(5) Exemption of government entities, agencies and instrumentalities – Properties of the National
Government as well as those of the local government units are not subject to tax, otherwise it will result
in the absurd situation of the government “taking money from one pocket and putting it in another”.
NOTE: As a rule, agencies performing governmental functions are tax-exempt unless expressly taxed.
On the other hand, agencies performing proprietary functions are subject to tax unless expressly
exempted.
2. EQUAL PROTECTION OF THE LAW. Equality of taxation is accomplished when the burden of the tax
falls equally and impartially upon all persons and property subject to it, so that no higher rate or greater
levy in proportion to value is imposed upon one person or species or property than upon others similarly
situated or of like character.
4. PROGRESSIVE TAXATION. Taxation is progressive when its rate goes up depending on the resources
of the person affected. It is built on the principle of the taxpayer’s ability to pay, and in proportion to the
revenue which they respectively enjoy under the protection of the state.”
5. NON-IMPRISONMENT FOR NON-PAYMENT OF POLL TAX. “No person shall be imprisoned for non-
payment of a debt or poll tax.” (Art. III, Sec. 20, Constitution) However, a taxpayer may be imprisoned for
non-payment of other kinds of taxes where the law so expressly provides. (Dimaampao, 2015)
6. ORIGIN OF REVENUE AND TARIFF BILLS. All appropriation, revenue or tariff bills, bills authorizing the
increase of the public debt, bills of local application and private bills, shall originate exclusively in House
of Representatives, but the Senate may propose or concur with amendments. (Art. III, Sec. 24,
Constitution) This is based on the theory that the members of the HOR, elected as they are from the
districts, can be expected to be more sensitive to the local needs and problems. (Tolentino v. Secretary
of Finance, 1995)
7. PRESIDENTIAL VETO. The President shall have the power to veto any particular item or items in an
appropriation, revenue or tariff bill but the veto shall not affect the item or items to which he does not
object. (Art. VI, Sec. 27 [2], Constitution)
8. PRESIDENTIAL POWER TO FIX TARIFF RATES. The President is vested with the authority by law to
increase tariff rates, even for revenue purposes only. The Constitution expressly grants permission to
Congress to authorize the President “to fix within specified limits and subject to such limitations and
restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues and
other duties or imposts within the framework of the national development program of the Government”.
(Art. VIII, Sec. 28 [2], Constitution)
11. APPROPRIATION OF PUBLIC MONEY. No public money or property shall be appropriated, applied, paid
or employed directly or indirectly for the use, benefit or support of any sect, church, denomination,
sectarian institution, or system of religion or of any priest, preacher, minister, or other religious teacher
or dignitary as such except when such priest, preacher, minister or dignitary is assigned to the armed
forces or to any penal institution or government orphanage or leprosarium. (Art. VI, Sec. 29[2],
Constitution) This is in consonance with the inviolable principle of separation of Church and State.
12. GRANT OF TAX EXEMPTIONS. The inherent power of the State to impose taxes naturally carries with
it the power to grant tax exemptions. The power to exempt from taxation, as well as the power to tax, is
an essential attribute of sovereignty, and may be exercised in the Constitution, or in a statute, unless the
Constitution expressly or by implication prohibits action by the legislature on the subject. (Revenue
Memorandum Circular No. 76-2003)
Exemptions from taxation may be created directly by the Constitution (Art. VI, Sec. 28[3]) such as those
granted to religious, charitable and educational institutions. Furthermore, Art. VI, Sec. 28[4] notes that
in granting exemptions, an absolute majority vote of the Members of the Congress is required, while in
the cases of withdrawal of such tax exemption, a relative majority is sufficient. This shall also be
applicable to tax amnesties, tax condonations, and tax refunds, for these are in the nature of tax
exemptions. (Dimaampao, 2015)
13. GRANT OF POWER OF TAXATION TO LOCAL GOVERNMENT UNITS. Each local government unit shall
have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such
guidelines and limitations as the Congress may provide, consistent with the basic policy of local
autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. (Art. X, Sec.
5, Constitution)
This is an exception to the general principle of the non-delegability of legislative powers. Delegation of
legislative power to local governments is justified by the necessary implication that the power to create
political corporations for purposes of local self-government carries with it the power to confer on such
local government agencies the authority to tax. (Pepsi-Cola Bottling Co. of the Philippines, Inc. v.
Municipality of Tanauan, Leyte, 1976)
However, despite the grant of taxing power to local government, judicial admonition is given to the effect
that the tax so levied must be for a public purpose, uniform and must not transgress any constitutional
provision nor repugnant to a controlling statute. (Villanueva v. City of Iloilo, 1968)
14. MONEY COLLECTED FOR A SPECIAL PURPOSE SHALL BE CONSIDERED A SPECIAL FUND. All money
collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such
purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the
balance, if any, shall be transferred to the general funds of the government. (Art. VI, Sec. 29[3],
Constitution)
Hence, in the question of whether the Oil Price Stabilization Fund (OPSF) shall be treated as a “special
fund” under P.D. 1956 or a “trust fund” under E.O. 1024, the Supreme Court held that: while the funds
collected may be referred to as taxes, they are exacted in the exercise of the police power of the state.
The OPSF is a special fund is plain from the special treatment given it by E.O. 137. It is segregated from
the general fund; and while it is placed in what the law refers to as a “trust liability account,” the fund
nonetheless remains subject to the scrutiny and review of the COA. The Court is satisfied that these
measures comply with the constitutional description of a “special fund.” OPSF was established precisely
to protect local consumers from the adverse consequences that such frequent oil price adjustments may
have upon the economy. (Osmeña v. Orbos, 1993)
15. SUPREME COURT’S JURISDICTION OVER TAX CASES. The Supreme Court has the power to review,
revise, reverse, modify or affirm on appeal or certiorari as the law or the Rules of Court may provide,
final judgments or orders of lower courts in all cases involving the legality of any tax, impost, assessment
or toll, or any penalty imposed in relation thereto. (Art. VIII, Sec. 5, Constitution) The Congress shall have
the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive
the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof. (Art. VIII, Sec. 2,
Constitution)
Congress may not pass a law declaring that decisions of the Court of Appeals (CA) on tax cases shall be
final and executory. However, a law making decisions of the CA appealable directly to the Supreme Court
(SC) is valid. Congress cannot deprive the SC of its power to review, revise, modify or affirm the decisions
of lower courts. (Dimaampao, 2015)
(2) Assessment and Collection (Tax Administration) — this is the act of administration and implementation
of the tax law by the executive department through the administrative agencies. The act of assessing
and collecting taxes, being administrative in character, can therefore be delegated. (Dimaampao, 2015)
NOTE: The term “assessment” which here means notice and demand for payment of a tax liability. It
should not be confused with “assessment” relative to a real property taxation, which refers to the listing
and valuation of taxable property
(3) Payment — this is the act of compliance by the taxpayer, including such options, schemes or remedies
as may be legally available.
(4) Refund — The recovery of any tax alleged to have been erroneously or illegally assessed or collected, or
any penalty claimed to have been excessively, or in any manner wrongfully collected.
Taxes Debt
Based on law Generally based on contract, expressed or implied
Generally cannot be assigned Assignable
Generally paid in money May be paid in kind
Cannot be subject of set off Can be subject of set off
Non-payment is punished by imprisonment except No imprisonment in case of non-payment (Art. III, Sec,
in poll taxes 20 of the 1987 Constitution)
Governed by the special prescriptive periods Governed by the ordinary periods of prescription
provided for in the NIRC under the NCC
As to burden or incidence
(1) Direct — one that is demanded from the person who also shoulders the burden of tax. Ex. income tax
and estate tax
(2) Indirect - taxes imposed on a taxpayer who shifts the burden to someone else. Ex. VAT
As to tax rates
(1) Specific — tax of a fixed amount imposed by the head or number, or by some standard of weight or
measurement. Ex. excise tax on cigarettes and liquors.
(2) Ad valorem — tax based on the value of the property with respect to which the tax is assessed. It requires
the intervention of assessors or appraisers to estimate the value of such property before the amount
due can be determined. Ex. Real Estate and Income tax.
(3) Mixed - A choice between ad valorem and/or specific depending on the condition attached.
As to purpose
(1) Fiscal or revenue — tax imposed solely for the general purpose of the government.
(2) Special — tax levied for specific purpose, i.e. to achieve social or economic ends. Ex. tariff.
As to authority to impose
(1) National tax — tax levied by the National Government. Ex. Income tax, Estate tax and VAT
(2) Local/Municipal —tax levied by a local government. Ex. real estate tax
As to graduation
(1) Progressive — tax rate, which increases as the tax base, or bracket increases.
(2) Regressive — tax rate decreases as the tax base or bracket increases.
Q: What are the sources of tax laws?
A:
(1) Constitution
(2) National Internal Revenue Code
(3) Tariff and Customs Code
(4) Local Government Code (Book II)
(5) Local tax ordinances / City or Municipality tax codes
(6) Tax treaties and international agreements
(7) Special laws
(8) Court decisions
(9) Revenue rules and regulations, and Administrative rulings and opinions (Tabag, 2015)
Revenue Memorandum Circulars (RMCs) must not override, supplant, or modify the law, but must remain
consistent and in harmony with the law they seek to apply and and implement (CIR v. SM Prime Holdings, Inc.,
2010).
However, as an exception, tax laws may only be given retroactive application if the legislature expressly or
impliedly provides that it shall be given retroactive application.
(2) Imprescriptibility of taxes. As a general rule, Taxes are imprescriptible by reason that it is the lifeblood
of the government. However, as an exception, tax laws may provide for statute of limitations. In
particular, the NIRC and LGC provide for the prescriptive periods for assessment and collection.
NOTE: Although the NIRC provides for the limitation in the assessment and collection of taxes imposed,
such prescriptive period will only be applicable to those taxes that were returnable. The prescriptive
period shall start from the time the taxpayer files the tax return and declares his liability (Collector of
Internal Revenue v. Bisaya Land Transportation Co., Inc., 1959).
Q: Explain the constitutional provision, “Congress shall evolve a progressive system of taxation.”
A: All tax measures must originate from the House of Representatives but Senate may propose or concur with
amendments. The rule on taxation must be uniform and equitable; Congress shall evolve a progressive system of
taxation (tax rate and tax base are directly proportional as against proportional system which has a fixed rate
regardless of tax base; and regressive system where the tax rate and tax base are inversely proportional). The
constitutional provision has been interpreted to mean simply that "direct taxes are . . . to be preferred [and] as
much as possible, indirect taxes should be minimized." (Tolentino v. Secretary of Finance, 1995)
Double taxation, although not favored, is permissible in the absence of express or implied constitutional
prohibition. In some states where double taxation is not expressly prohibited, it is held that double taxation is
permissible, or not invalid or unconstitutional, or necessarily unlawful, provided some other constitutional
requirement is not thereby violated, as a requirement that taxes must be equal and uniform. (84 CJS 131-134).
Q: For the first quarter of 1999, the City of Manila assessed and collected taxes from Star Appliance Center,
Inc. pursuant to Section 15 (Tax on Wholesalers, Distributors, or Dealers) and Section 17 (Tax on Retailers) of
the Revenue Code of Manila. At the same time, the City of Manila imposed additional taxes upon it pursuant
to Section 21 (Tax on Business Subject to the Excise, Value-Added or Percentage Taxes under the NIRC) of the
Revenue Code of Manila, as amended, as a condition for the renewal of its business for the year 1999. Section
21 imposed a tax of fifty percent (50%) of one percent (1%) per annum on the gross sales or receipts.
Star Appliance Center, Inc. requested the Office of the City Treasurer for the tax credit or refund of the local
business taxes paid under protest. It claimed entitlement thereto since the enforcement of Section 21
constituted double taxation, because the local business taxes under Section 15 and Section 17 of the Revenue
Code of Manila were already being paid by it.
A: Yes. All the elements of double taxation concurred upon the City of Manila’s assessment on and collection from
Star Appliance Center, Inc. of taxes for the first quarter of 1999 pursuant to Section 21 of the Revenue Code of
Manila.
Firstly, because Section 21 of the Revenue Code of Manila imposed the tax on a person who sold goods and
services in the course of trade or business based on a certain percentage of his gross sales or receipts in the
preceding calendar year, while Section 15 and Section 17 likewise imposed the tax on a person who sold goods
and services in the course of trade or business but only identified such person with particularity, namely, the
wholesaler, distributor or dealer (Section 15), and the retailer (Section 17), all the taxes – being imposed on the
privilege of doing business in the City of Manila in order to make the taxpayers contribute to the city’s revenues
– were imposed on the same subject matter and for the same purpose.
Secondly, the taxes were imposed by the same taxing authority (the City of Manila) and within the same
jurisdiction in the same taxing period (i.e., per calendar year).
Thirdly, the taxes were all in the nature of local business taxes.
In fine, the imposition of the tax under Section 21 of the Revenue Code of Manila constituted double taxation,
and the taxes collected pursuant thereto must be refunded (Nursery Care Corporation v. City of Manila, 2014)
It is a form of indirect double taxation because the tax is not imposed in the same jurisdiction by the same taxing
authority.
On the other hand, in the credit method, although the income or capital, which is taxed in the state of source, is
still taxable in the state of residence, the tax paid in the former is credited against the tax levied in the latter.
The basic difference between the two methods is that in the exemption method, the focus is on the income or
capital itself, whereas the credit method focuses upon the tax (CIR v. SC Johnson, 1999)
Q: Reconcile the two seemingly conflicting statements, “The power to tax is the power to destroy” (J. Marshall,
McCulloch v. Maryland), and “The power to tax is not the power to destroy while this Court sits” (J. Holmes,
Panhandle Oil Co. v. Mississippi).
A: In the words of Justice Isagani Cruz, the conflict is more apparent than real. Both statements may be regarded
as correct, but from different viewpoints.
The power to tax may include the power to destroy if it is used validly as an implement of the police power in
discouraging and in effect ultimately prohibiting certain things or enterprises inimical to the public welfare, i.e.
onerous taxes for massage parlors found to be mere fronts for prostitution.
But where the power to tax is used solely for the purpose of raising revenues, the modern view is that it cannot
be allowed to confiscate or destroy (Isagani Cruz, Constitutional Law, 2007 Updated Edition, p. 88).
The power to tax must be exercised fairly, equally, and uniformly; justly and not treacherously. While the power
to tax has been deemed the power to destroy, the Courts will step in to make sure it is not. In any case, where it
can be demonstrated that the challenged statutory provision fails to abide by the Constitution, then the Court
must so dictate it to be null and void. (Sison v. Ancheta)
Shifting is the transfer of the burden of tax by the original payer or the one on whom the tax was assessed or
imposed to another or someone else without violating the law. Examples of taxes when shifting may apply are
VAT, percentage tax, excise tax on excisable articles, ad valorem tax that oil companies pay to BIR upon removal
of petroleum products from its refinery.
Tax avoidance is the tax saving device within the means sanctioned by law. This method should be used by the
taxpayer in good faith and at arm's length. (CIA v. Estate of Benigno Toda, 2004) Tax avoidance is a scheme where
the taxpayer uses legally permissible alternative method of assessing taxable property or income, in order to
avoid or reduce tax liability.
Tax evasion, on the other hand, is a scheme used outside of those lawful means and when availed of, it usually
subjects the taxpayer to further or additional civil or criminal liabilities.
Capitalization refers to the reduction in the price of taxed object equal to the capitalized value of the future
taxes, which the purchaser expects to be called upon to pay. It is made when the price of the property is lowered
to accommodate the exclusion of tax, which is expected to be paid by seller as a result of sale transaction. (Income
Taxation, Valencia & Roxas, 2016)
Transformation occurs when the producer absorbs the payment of tax to reduce the price and to maintain
market share. The producer recovers his additional tax expense by improving the process of production. The tax
therefore is transformed into a gain through the medium of production. (Income Taxation, Valencia & Roxas, 2016)
Exemption grants of immunity to a particular class of persons or things from a tax which persons within the
same state or taxing district are obliged to pay.
NOTE: Only indirect taxes may be shifted. In case of direct taxes, the shifting of burden can only be made
via contractual provision.
NOTE: He who claims the exemption must point to some provision of law creating the right. It cannot be allowed
to exist upon a mere vague implication or inference. It must be indubitably shown to exist, for every presumption
is against it and a well-founded doubt is fatal to the claim. (Floro Cement v. Goroipe, 1991)
NOTE: In cases involving tax exemption, interpretation must be construed against taxpayer and liberally in favor
of the government except when the grantee is a municipal corporation or local government.
Q: What determines the EXEMPTION of property used for religious, charitable, or educational purposes from
taxes?
A: It is the use of property that determines exemption, not the use of income coming from such property.
Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit
cemeteries and all lands, buildings and improvements, actually, directly and exclusively (ADE) used for religious,
charitable or educational purposes are tax exempt. ADE means solely used for the purposes enumerated in the
Constitution. (Lung Center of the Philippines v. Quezon City, 2004)
Q: Does revoking a tax exemption violate the non-impairment clause under the 1987 Constitution?
A: As a general rule, since taxation is the rule and exemption is the exception, the exemption may, thus, be
withdrawn at the pleasure of the taxing authority. (MC/AA v. Marcos, 1996) However, if the tax exemption
constitutes a binding contract and for valuable consideration, the government cannot unilaterally revoke the tax
exemption.
The non-impairment clause is violated if it is based on contract where valuable consideration is given. However,
there is no violation if it is a franchise granted by the Congress or based on economic policy. (Tolentino vs.
Secretary of Finance, 1994; see also Article VI, Section 24 of the 1987 Constitution)
NOTE: Equitable recoupment is allowed only in common countries, not in the Philippines. The Supreme Court,
rejected this doctrine in Collector v. UST (1958), since it may work to tempt both parties to delay and neglect their
respective pursuits of legal action within the period set by law.
Q: What is a compromise?
A: Compromise is a contract between the government and the taxpayer to settle tax liability subject to minimum
compromise tax rate. Under Section 204 (A) of the Tax Code, the BIR Commissioner may compromise the
payment of any internal revenue tax, when:
(1) A reasonable doubt as to the validity of the claim against the taxpayer exists; or
(2) The financial position of the taxpayer demonstrates a clear inability to pay the assessed tax.
Tax amnesty, much like a tax exemption, is never favored or presumed in law. The grant of a tax amnesty, similar
to a tax exemption, must be construed strictly against the taxpayer and liberally in favor of the taxing authority.
(Asia International Auctioneers v. CIR, 2012)
A tax amnesty is a general pardon or intentional overlooking by the State of its authority to impose penalties on
persons otherwise guilty of evasion or violation of a revenue or tax law. It partakes of an absolute forgiveness or
waiver by the government of its right to collect what is due it and to give tax evaders who wish to relent a chance
to start with a clean slate. The grant of a tax amnesty, similar to a tax exemption, must be construed strictly
against the taxpayer and liberally in favor of the taxing authority. (CIR v. Philippine Aluminum Wheels, 2017)
TAXING AUTHORITY
Rules and regulations, as well as administrative opinions and rulings, ordinarily should deserve weight and
respect by the courts. All such issuances must not override, but must remain consistent and in harmony with,
the law they seek to apply and implement. Administrative rules and regulations are intended to carry out, neither
to supplant nor to modify, the law (CIR v. CA, 1995).
Q: XYZ Corporation, an export-oriented company, was able to secure a Bureau of Internal Revenue (BIR) ruling
in June 2005 that exempts from tax the importation of some of its raw materials. The ruling is of first
impression, which means the interpretations made by the Commissioner of Internal Revenue is one without
established precedents. Subsequently, however, the BIR issued another ruling, which in effect would subject
to tax such kind of importation. XYZ Corporation is concerned that said ruling may have a retroactive effect,
which means that all their importations done before the issuance of the second ruling could be subject to tax.
A:
(1) The power to interpret the provisions of this Code and other tax laws shall be under the exclusive and
original jurisdiction of the Commissioner, subject to review by the Secretary of Finance. (NIRC, Sec. 4)
The power to issue rulings of first impression or to reverse, revoke or modify any existing BIR ruling shall
not be delegated. [NIRC, Sec. 7(b)].
(2) No. A BIR ruling cannot be given retroactive effect if its retroactive application is prejudicial to the
taxpayer (NIRC, Sec. 246; CIR v. Court of Appeals et. Al., 1997).
Rulings with established precedents — These refer to mere reiteration of previous rulings, opinions and
interpretations of the Commissioner, as delegated to duly authorized internal revenue officers (i.e., Deputy
Commissioner, Legal and Inspection Group; Assistant Commissioner, Legal Service; Regional Directors) that are
issued in response to a specific request for ruling filed by a taxpayer with the Bureau of Internal Revenue.
(Revenue Administrative Order No. 2-2001, as amended by Revenue Administrative Order No. 01-03)
INCOME TAX
(2) SCHEDULAR TAX SYSTEM - Different types of incomes are subject to different sets of graduated or flat
income tax rates. Schedular approach is a system employed where the income tax treatment varies and
made to depend on the kind or category of taxable income of the taxpayer. (Tan vs. Del Rosario, Jr., supra)
Note: In order that a foreign corporation may be regarded as doing business within a State, there must be
continuity of conduct and intention to establish a continuous business such as the appointment of local agent,
and not one of a temporary character. (Commissioner of Internal Revenue v. British Overseas Airways Corp., 1987).
It involves any other act or acts that imply a continuity of commercial dealings or arrangements and contemplate
to that extent the performance of acts or works, or the exercise of some of the functions normally incident to,
and in the progressive prosecution of commercial gain or of the purpose and object of the business organization.
(R.A. No. 7042, Foreign Investment Act of 1991, Sec. 3 (d)).
Q: What is income?
A: Income refers to all wealth which flows into the taxpayer other than as mere return of capital. It includes the
forms of income specifically described as gains and profits, including gains derived from the sale or other
disposition of capital assets (R.R. No. 2, Sec. 36).
An income is an amount of money coming to a person or corporation within a specified time, whether as payment
for services, interest or profit from investment. Unless otherwise specified, income means cash or its equivalent
(Conwi v. CIR, G.R. No. 48532, August 31, 1992).
Income is a flow of service rendered by capital by payment of money from it or any benefit rendered by a fund of
capital in relation to such fund through a period of time (Madrigal v. Rafferty, 1918).
NOTE: Mere increase in the value of property is not considered as income since it is an unrealized
increase in capital.
(3) Recognition of income. When income considered received for Philippines income tax purposes:
a. If actually or physically received by taxpayer; or
b. If constructively received by taxpayer
(4) Methods of Accounting. Accounting methods for tax purposes comprise a set of rules for determining
how to report income and deductions. As a general rule, the law does not provide for a specific method
of accounting to be employed by the taxpayer. The law only authorizes the CIR to employ particular
method of accounting of income where:
a. The taxpayer does not employ a method for computing income, or
b. The taxpayer’s method for accounting does not clearly reflect the income (Domondon, 205,
citing Sec. 43 of NIRC).
Q: What are the tests in determining whether income is earned for tax purposes?
A:
(1) Realization test - There is no taxable income unless there is a separation of capital for something of
exchangeable value, thereby supplying the realization or transmutation which would result in the
receipt of income. Revenue is generally recognized when both conditions are met:
a. The earning process is complete or virtually complete; and
b. An exchange has taken place (Manila Mandarin Hotels, Inc. v. CIR, 1997).
(2) Claim of right doctrine or doctrine of ownership, command or control – A taxable gain is conditioned
upon the presence of a claim of right to the alleged gain and the absence of a definite unconditional
obligation to return or repay.
(3) Economic benefit test, doctrine of proprietary interest - Taking into consideration the pertinent
provisions of law, income realized is taxable only to the extent that the taxpayer is economically
benefited.
(4) Severance test - Income is recognized when there is separation of something, which is of
exchangeable value (Eisner v. Macomber, 1920).
(5) All events test - The all events test requires fixing a right to income or liability to pay, and the availability
of reasonably accurate determination of such income or liability (CIR v. Isabela Cultural Corporation,
2007).
Q: Explain the doctrine of constructive receipt of income.
A: Income which is credited to the account of or set apart for a taxpayer and which may be drawn upon by him
at any time is subject to tax for the year during which credit is set apart although not then actually reduced to
possession. To constitute receipt in such sense, the income must be credited to the taxpayer without any
substantial limitation or restriction as to the time, or manner of payment, or condition upon which payment is
to be made (RR No. 2-40, Sec. 52).
Note: Gains, profits and income from the sale of personal property is treated as derived entirely from
sources within the country if the property was:
a. Purchased within and sold without the Philippines; or
b. Purchased without and sold within the Philippines (NIRC. Sec. 42, par. (A)).
(7) Gains on sale of shares of stock in a domestic corporation
Note: Gain from the sale of shares of stock in a domestic corporation, shall he treated as derived entirely
from sources within the Philippines regardless of the place where the shares were sold (NIRC, Sec. 42,
par. (E)).
a. Purchased within and sold without the Philippines; or
b. Purchased without and sold within the Philippines (NIRC. Sec. 42, par. (A)).
Income from sources without the Philippines
(1) Interests other than those derived from sources within the Philippines (e.g., interest earned
from deposits on banks located outside 1he Philippines, interest on loans where the debtor is
not a resident of the Philippines);
(2) Dividends other than those derived from sources within the Philippines (e.g., dividends received
from a foreign corporation less than 50% of the gross income of which is from sources within
the Philippines for the 3-year period ending with the close of its taxable year preceding the
declaration of such dividends);
(3) Compensation for services performed outside the Philippines
(4) Rentals and royalties from properties located outside the Philippines or any interest in such
property including rentals or royalties for the use of or for the privilege of using outside the
Philippines intellectual property rights such as trademarks, copyrights, patents, etc.
(5) Gains, Profits, and income from the sale of real property located without the Philippines (NIRC,
Sec. 42(C)).
The definition of gross income is broad enough to include all passive incomes subject to specific rates or final
taxes. However, since these passive incomes are already subject to different rates and taxed finally at source,
they are no longer included in the computation of gross income, which determines taxable income. (CIR v. PAL,
2006)
Q: Differentiate gross income vis-à-vis net income vis-à-vis taxable income
A: “Net income taxation” is a system of taxation where the income subject to tax may be reduced by allowable
deductions. On the other hand, “Taxable income or net income” refers to the pertinent items of gross income
specified in the NIRC less the deductions, if any, authorized for such types of income by the NIRC or other special
laws.
(2) Fringe benefits - is any good, service or other benefit furnished or granted by an employer in cash
or in kind in addition to basic salaries, to an individual employee, except a rank and file employee
(3) Professional income - Professional income refers to the fees received by a professional from the
practice of his profession, provided that there is no employer-employee relationship between him
and his clients. (NOTE: Professional income shall be subject to creditable withholding tax rates
prescribed (R.R. No. 2-98)).
(4) Income from business – Business income refers to income derived from merchandising, mining,
manufacturing and farming operations. (NOTE: Business is any activity that entails time and effort
of an individual or group of individuals for purposes of livelihood or profit.)
Note: The list is exclusive. The yardstick of determining whether a property is capital or
ordinary asset is its actual use (BIR Ruling No. DA 217-07)
b) Capital assets - include property held by the taxpayer (whether or not connected with his
trade or business) other than SOUR above.
(6) Passive investment income - Passive income refers to income derived from any activity in which
the taxpayer has no active participation or involvement.
(7) Annuities, proceeds from life insurance or other types of insurance – Annuity refers to the
periodic installment payments of income or pension by insurance companies during the life of a
person or for a guaranteed fixed period of time, whichever is longer, in consideration of capital paid
by him. Proceeds of life insurance refers to Amounts received under a life insurance, endowment,
or annuity contact, whether in a single sum or in installments, paid to the beneficiaries upon the
death of the insured are excluded from the gross income of the beneficiary.
(8) Prizes and awards - It refers to amount of money in cash or in kind received by chance or through
luck and are generally taxable except if specifically mentioned under the exclusion from
computation of gross income under Sec. 32[B] of NIRC.
(9) Pensions, retirement benefit or separation pay - It refers to amount of money received in lump
sum or on staggered basis in consideration of services rendered given after an individual reaches
the age of retirement. Pension being part of gross income is taxable to the extent of the amount
received except if there is a BIR approved pension plan (NIRC, Sec. 32 B [6]).
(10) Income from any source whatever - “Income from whatever source derived” implies that all income
not expressly exempted from the class of taxable income under our laws form part of the taxable
income, irrespective of the voluntary or involuntary action of the taxpayer in producing the income.
The source of the income may be legal or illegal (James v. US).
Q: When are fringe benefits treated as part of compensation income subject to income tax and when are fringe
benefits subjected to fringe benefits tax (FBT)?
A: Fringe benefits received by supervisory and managerial employees are subject to FBT under Sec.33 (A). Fringe
benefits received by rank-and-file employees are treated as part of his compensation income subject to income
tax and withholding tax on compensation income. (Philippine Income Tax, Mamalateo, 2010, p.151)
On the other hand, professional income refers to income derived from the exercise of a profession, provided that
there is no employer-employee relationship between him and his client.
Q: When are gains from dealings involving real property treated as part of gross income under Sec.32(A)?
A: They form part of the gross income under Sec. 32(A) if the real property sold is an ordinary asset. A real
property is an ordinary asset if it is used in the taxpayer’s trade, business or profession, or treated as fixed asset
used in his trade, business or profession, subject to taxation. (Mamalateo, 2010) The gains derived from sale of
ordinary assets would be subject to either 0-35% schedular rate under Sec. 5 for individual taxpayers or 30% rate
for corporate taxpayers, under RA 10963 as amended.
Note: If the real property is a capital asset, then the sale of the real property would be subject to 6% capital gains
tax on the fair market value or the gross selling price, whichever is higher.
Q: What are the items excluded from the income tax? (PIG-CTRM)
A:
(1) Proceeds of life, accident, or health insurance policies;
(2) Amounts received by Insured as return of premium paid;
(3) Value of property acquired by Gift, bequest, devise or descent;
(4) Compensation for injuries or sickness;
(5) Income exempt under tax Treaty;
(6) Amounts received under life insurance, endowment or annuity contracts;
(7) Retirement benefits, pensions, gratuities, etc.; and
(8) Amount received through accident or health insurance;
(9) Miscellaneous
a. Income derived by foreign government
b. Income derived by the government or its political subdivisions
c. Prizes and awards
d. Prizes and awards in sports competition
e. 13th month pay and other benefits
f. GSIS. SSS. Medicare and other contributions
g. Gains from sale of bonds. debentures or other certificate of indebtedness with a maturity of
more than five (5) years
h. Gains from redemption of shares in mutual funds (NIRC Sec. 32(B))
i. Advanced payments received by the taxpayer under the accrual method of accounting
Q: Differentiate deductions from gross income from exclusions from gross income.
A:
Deductions from gross income Exclusions from gross income
A flow of wealth to the taxpayer which are not treated as
part of the gross income for purposes of computing the
The amounts, which the law allows to be
taxpayer’s taxable income, due to the following reasons:
subtracted from, gross income in order to
(a) It is exempted by the fundamental law;
arrive at the net income.
(b) It is exempted by statute; or
(c) It does not come within the definition of income.
Pertains to the computation of net income. Pertains to the computation of the gross income.
Something spent or paid in earning gross Something received or earned by the taxpayer, which do not
income. form part of gross income.
A. Expenses
a. Ordinary and Necessary Trade,
Business or Professional Expenses
b. Expenses Allowable to Private
Educational Institutions
B. Interest
C. Taxes
A. Life Insurance
D. Losses
B. Amount Received by Insured as Return of Premium
E. Bad Debts
C. Gifts, Bequests, and Devises
F. Depreciation
D. Compensation for Injuries or Sickness
G. Depletion of Oil and Gas Wells and Mines
E. Income Exempt under Treaty
H. Charitable and Other Contributions
F. Retirement Benefits, Pensions, Gratuities, etc.
I. Research and Development
G. Miscellaneous Items (as amended by RA 10963)
J. Pension Trusts
K. Additional Requirements for Deductibility of
Certain Payments
L. Optional Standard Deduction (as amended
by RA 10963)
M. Premium Payments on Health and/or
Hospitalization Insurance of an Individual
Taxpayer
(1) He is not a mere transient or sojourner [R.R. No. 02-40, Sec. 5];
(2) He has no definite intention to stay in the Philippines; or
(3) His purpose is of such nature that an extended stay may be necessary for the accomplishment and to
that end, the alien makes his home temporarily in the Philippines [BIR DA-ITAD Ruling No. 153-06]
Q: Who are the special types of alien employees entitled to preferential tax rates?
A:
(1) Aliens employed by Regional or Area Headquarters and Regional Operating Headquarters (RHQs and
ROHQs) of Multinational Companies (NIRC, Sec. 25C)
(2) Aliens employed by Offshore Banking Units (OBU) [NIRC, Sec.25(D)] 3. Alien Individual Employed by
Petroleum Service Contractor and Subcontractor (PSCS) [NIRC, Sec.25(E)]
Common rule: 15% of their gross compensation income from sources within the Philippines.
Note: The same tax treatment shall apply to Filipinos employed and occupying the same position as those of aliens
employed by these multinational companies. Multinational companies are foreign firms or entities engaged in
international trade with affiliates or subsidiaries or branch offices in the Asia-Pacific Region and other foreign
markets.
However, the preferential income tax rate under subsection C, D and E of Sec. 25 of the NIRC, as amended shall
no longer be applicable without prejudice to the application of preferential tax rates under existing international
tax treaties, if warranted. Thus, all concerned employees of the RHQ, ROHQ, OBU, and PSCS shall be subject to
regular income Tax rate under Sec. 24 (A) (2) (a) of the NIRC, as amended. [R.R. 8-2018, Sec. 4 (C)]
Q: What is the difference between income tax rates on individuals concerning capital gains from sale of real
property, and income tax rates on domestic corporations on capital gains realized from the sale, exchange or
disposition of lands and/or buildings?
A: The tax treatment is the same as that of individuals. The capital gains tax is applied on the gross selling price,
or the current fair market value at the time of the sale of real property classified as capital assets, whichever is
higher. Any gain or loss on the sale is immaterial because there is a conclusive presumption by law that the sale
resulted in a gain. [NIRC, 24(D)].
Sale, exchange or disposition of lands and/or buildings which are not actually used in the business of a
corporation and are treated as capital assets tax are also subject to a 6% capital gains tax on the fair market value
or gross selling price, whichever is higher. [NIRC, 27(D)(5)].
Non-resident Alien not engaged in trade or business within the Philippines (NRANETB) – [NIRC, 25(B)].
Q: Is the Interest Income from bank deposits received by non-stock non-profit educational institutions
subject to the twenty (20%) final tax or is it tax-exempt?
A: It depends. It is exempt if the interest income is actually, directly, and exclusively used for educational
purposes.
Note: Revenues consist of the amounts earned by a person or entity from the conduct of business operations. It
may refer to the sale of goods, rendition of services, or the return of an investment. Revenue is a component of
the tax base in income tax, VAT, and local business tax (LBT).
Assets, on the other hand, are the tangible and intangible properties owned by a person or entity. It may refer to
real estate, cash deposit in a bank, investment in the stocks of a corporation, inventory of goods, or any property
from which the person or entity may derive income or use to generate the same. In Philippine taxation, the fair
market value of real property is a component of the tax base in real property tax (RPT). Also, the landed cost of
imported goods is a component of the tax base in VAT on importation and tariff duties.
Thus, when a non-stock, non-profit educational institution proves that it uses its revenues actually, directly, and
exclusively for educational purposes, it shall be exempted from income tax, VAT, and LBT. On the other hand,
when it also shows that it uses its assets in the form of real property for educational purposes, it shall be
exempted from RPT. (CIR v. DLSU)
Q: An international airline with no landing rights in the Philippines sold tickets in the Philippines for air
transportation. Is income derived from such sales of tickets considered taxable income of the said
international air carrier from Philippine sources under the Tax Code? Explain.
A: Yes. The income derived from the sales of the tickets is considered taxable income of the international air
carrier from Philippine sources. The source of income is the property, activity, or service that produced the
income. The sale of tickets in the Philippines is the activity that produces the income. The absence of landing
rights in the Philippines cannot alter the fact that revenues were derived from ticket sales in the Philippines (CIR
v. Japan Air Lines, 1991 reiterating CIR v. BOAC, 1987)
Q: What is the liability of an off-line international carrier selling passage documents through an independent
sales agent in the Philippines?
A: The carrier is subject to income tax at the rate of 32% of its taxable income. Off-line air carriers having general
sales agents in the Philippines are engaged in or doing business in the Philippines and that their income from
sales of passage documents here is income from within the Philippines (South African Airways v. CIR, 2010).
Q: What are the requirements that must be complied with for retirement benefits to be exempted from
income tax?
A:
(1) The plan must be reasonable;
(2) The benefit plan must be approved by the BIR;
(3) The retiring official or employee must have been in the service of the same employer for at least ten (10)
years and must at least be fifty (50) years old at the time of retirement; and
(4) The retiring official or employee should not have previously availed of the privilege under the retirement
benefit plan of the same or another employer.
Note: It does not matter if the retirement is voluntary. As long as the requirements are met, the retirement
proceeds are excluded in the gross income. However, if the retirement is compulsory, there is no need to comply
with the above requirements before the retirement benefits would be excluded because the same would be
excluded as separation pay beyond the control of the employee [2 DOMONDON, Taxation]
Q: What are the requirements to exempt winnings, prizes and awards from the income tax?
A:
(1) The prizes and awards were given in recognition of religious, charitable, scientific, educational, artistic,
literary, or civic achievement; RC SEA LC
(2) The recipient was selected without any action on his part to enter the contest or proceeding; and
(3) The recipient is not required to render substantial future services as a condition to receiving the prize
or award. [NIRC, Sec. 32, (B) (7) (c)]
Note: National Sports Associations are those which are duly accredited by the Philippine Olympic Committee
[R.A. No. 7549, Sec. 2(2)]
Q: What are the tax implications of prizes and awards in sports competitions under R.A. No. 7549 or the Act
Exempting All Prizes and Awards Gained from Local and International Sports Tournaments and Competitions
from the Payment of Income and Other Forms of Taxes and for Other Purposes?
A:
(1) The prizes and awards shall be exempt from income tax;
(2) They shall be deductible in full from the gross income of the donor; and
(3) The donors of such prizes and awards are exempt from donor’s tax [R.A. No. 7549, Sec. 1]
Note: Representation and transportation allowances which are fixed in amounts and are regularly received
by the employees as part of their monthly compensation are not treated as taxable fringe benefits but are
considered as taxable compensation income subject to regular tax rates [R.R. No. 3-98, Sec. 2.33 (B)(2)(d)]
Q: What are the instances when motor vehicles privilege is subjected to FBT?
A: Any of the ff is subject to FBT:
(1) Employer purchases vehicle in employee’s name;
(2) Employer provides employee cash for vehicle purchases;
(3) Employer purchases car on installment and the ownership of which is placed in the name of the
employee;
(4) Employer shoulders a portion of the purchase price;
(5) Employer owns and maintains a fleet of motor vehicles for use of business and employees;
(6) Employer leases and maintains a fleet of motor vehicles for the use of the business and employees;
(7) The use of aircraft owned and maintained by the employer; and
(8) The use if yacht whether owned and maintained or leased by the employer [2 CASASOLA, NIRC (2013)]
Q: When is interest on loans obtained by the employees from the employer subject to FBT?
A: If the employer lends money to his employee free of interest or a rate lower than 12%, such interest foregone
by the employer or the difference of the interest assumed by the employee and the rate of 12% shall be treated
as taxable fringe benefit [R.R No. 3-98 Sec. 2.33 (B)(5)]
Q: What are the expenses for foreign travel which are NOT subject to FBT?
A:
(1) Inland travel expenses such as expenses for food, beverages and local transportation;
(2) The cost of lodging in a hotel or similar establishment amounting to an average of US $300 or less per
day;
(3) The cost of economy and business class airplane tickets;
(4) 70% of the cost of the first-class airplane ticket [R.R. No. 3-98 Sec. 2.33 (B)(7): DE LEON, NIRC Annotated]
Q: What are the items that are not deductible from gross income?
A:
(1) Personal, living or family expenses;
(2) Any amount paid for new buildings or for permanent improvements (capital expenditures);
(3) Any amount expended in restoring property (major repairs) or in making good the exhaustion thereof
for which an allowance is or has been made;
(4) Premiums paid on life insurance policy covering life or any other officer or employee financially
interested in any trade or business carried on by the taxpayer, individual or corporate, when the taxpayer
is directly or indirectly a beneficiary under such policy;
(5) Interest expense, bad debts, and losses from sales of property between related parties;
(6) Losses from sale or exchange of property;
(7) Non-deductible interest;
(8) Non-deductible taxes;
(9) Non-deductible losses; and
(10) Losses from wash sales of stock or securities.
Q: Define “related parties” in relation to those items not deductible from gross income
A: According to Section 36(B) of the NIRC:
(1) Between members of a family. For purposes of this paragraph, the family of an individual shall include
only his brothers and sisters (whether by the whole or half-blood), spouse, ancestors, and lineal
descendants; or
(2) Except in the case of distributions in liquidation, between an individual and corporation more than
fifty percent (50%) in value of the outstanding stock of which is owned, directly or indirectly, by or for
such individual; or
(3) Except in the case of distributions in liquidation, between two corporations more than fifty percent
(50%) in value of the outstanding stock of which is owned, directly or indirectly, by or for the same
individual if either one of such corporations, with respect to the taxable year of the corporation
preceding the date of the sale of exchange was under the law applicable to such taxable year, a personal
holding company or a foreign personal holding company;
(4) Between the grantor and a fiduciary of any trust; or
(5) Between the fiduciary of and the fiduciary of a trust and the fiduciary of another trust if the same
person is a grantor with respect to each trust; or
(6) Between a fiduciary of a trust and beneficiary of such trust.
Note: Under R.R. No. 13-00, the limitation on the allowable interest expense shall apply, regardless if whether or
not the tax arbitrage scheme was entered into by the taxpayer, or regardless of the date when the interest
bearing loan and the date when the investment was made for as long as, during the taxable year, there is an
interest expense incurred on one side and an interest income earned on the other side, which interest income
had been subjected to final withholding tax.
Note: In the case of oil and gas well, losses incurred in any of the first 10 years of operation may be carried
over as a deduction from the gross income for the next 5 years following such loss. [NIRC, Sec. 34, par.
(D)(3)]
Q: In case of merger, consolidation, or combination, is the transfee or assignee entitled to claim the NOLCO
of the transferor?
A: The transferee or assignee shall not be entitled to claim the same as deduction from gross income except when
as a result of the said merger, consolidation, or combination, the shareholders of the transferor/assignor, or the
transferor gains control of:
(1) At least 75% or more in the nominal value of outstanding issued shares or paid-up capital of the
transferee/assignee, if a corporation; or
(2) At least 75% or more interest in the business of the transferee/assignee, if not a corporation (75% equity
rule) [R.R. No. 14-01, Sec. 2.4]
Note: The 75% equity rule or ownership or interest rule, only applies to a corporation in cases where there is a
transfer or assignment of the taxpayer’s net operating losses as a result of or arising from the said taxpayer’s
merger or consolidation or business combination with another person.
Q: Differentiate Net Operating Loss Carry-over from Net Capital Loss Carry-over.
A: NOLCO (Net Operating Loss Carry-over) is the excess of allowable deductions over income of business for
any taxable year, which had not been previously offset as deduction from gross income [NIRC Sec. 34 (D)(3)].
NELCO (Net Capital Loss Carry-over) is if any taxpayer, other than a corporation, sustains in any taxable year a
net capital loss, such loss (in an amount not in excess of the net income for such year) shall be treated in the
succeeding taxable year as a loss from the sale or exchange of a capital asset held for not more than 12 months
[NIRC, Sec. 39(D)].
Rules:
(1) NELCO is available only to individuals, including estates and trusts.
(2) The net-loss carry-over shall not exceed the net income for the year sustained and is deductible only
for the succeeding year.
(3) The capital assets must not be real property or stocks listed and traded in the stock exchange.
(4) Capital asset must be held for not more than 12 months.
Q: Are real properties transferred pursuant to expropriation proceedings subject to capital gains tax?
A: Yes. The transfer is a sale or exchange within the meaning of Sec. 24 (D) and 56 (A) (3) of the NIRC, as amended,
and the profit of the transaction constitutes capital gain. Such capital gains is subject to CGT. [Republic,
represented by DPWH, vs. Spouses Senando and Josefina Salvador, 2017]
Note: The expropriation of property classified as capital asset is subject to CGT and DST based on the amount of
just compensation [R.M.C. No. 41-91]. It is not subject to CWT and VAT [BIR Ruling No. DA-212-07]
If the subject shares are traded and listed in the If the subject shares are NOT traded and listed in
stock exchange the stock exchange
Subject to stock transaction tax at the rate of six- Subject to capital gains tax or final tax of fifteen
tenths of one percent (6/10 of 1%) of the gross percent (15%) as the case may be, on net capital
selling price or gross value in money of the shares of gains during the taxable year.
stock.
Q: May an asset originally classified as ordinary asset be reclassified into a capital asset?
A: As a general rule, a property purchased for future use in the business, even though this purpose is later
thwarted by circumstances beyond the taxpayer’s control, does not lose its character as an ordinary asset. Nor
does a mere discontinuance of the active use of the property change its character previously established as a
business property (RR No. 7-2003, Sec. 3(a)(4)).
However, Sec. 3(e) of RR No. 7,2003 provides that properties classified as ordinary assets for being used in
business by a taxpayer engaged in business other than real estate business are automatically converted into
capital assets upon showing of proof that the same have not been used in business for more than 2 years prior to
the consummation of the taxable transactions involving the properties (BIR Ruling No. 142-2011). The conversion
from ordinary to capital asset is allowed only if the taxpayer is not engaged in real estate business.
Q: When are shares of stocks be treated as ordinary assets and when are they treated as capital assets?
A: An equity investment is a capital, not ordinary, asset of the investor the sale or exchange of which results in
either a capital gain or a capital loss. Shares or stock like the other securities defined in Sec. 22(T} of the NIRC.
would be ordinary assets only to a dealer in securities or a person engaged in the purchase and sale of an active
trader (for his own account) in securities. In the hands, however, of another who holds the shares of stock by way
of an investment, the shares to him would be capital assets. When the shares held by such investor become
worthless. the loss is deemed to be. A loss from the sale or exchange of capital assets (China Banking Corporation
vs. CA, 2000)
Note: Only individual taxpayers can carry over capital loss. However, under Section 34 (D)(3), corporate taxpayers
may carry over net operation loss provided the conditions are followed.)
Q: In 2003, Mr. Naval bought a lot for 1M in a subdivision with the intention of building his residence on it. In
2012, he abandoned his plan to build his residence on it because the surrounding area became a depressed
area and land values in the subdivision went down; instead he sold it for P800,000. Is the land a capital asset
or an ordinary asset?
A: The land is a capital asset. It is not used in trade or business because it was intended for Mr. Naval’s residence.
[NIRC, Sec. (39)(A)].
Partners shall be liable for income tax in their separate and individual capacities.
Q: What are the general requisites for deductibility of compensation for personal services actually rendered?
A: The requisites are the following: (OPT-SPR)
(1) The expense must be both Ordinary and necessary;
(2) The salaries must be Paid or incurred within the taxable year;
(3) The 3alaries must be incurred in carrying on a Trade or business;
(4) The expense ·must in fact be Salaries or other compensation:
(5) The salaries must be for Personal services actually rendered; and
(6) The salaries must be Reasonable in amount (Mamalateo, 2014).
Note: The term “away from home” means away from the location of the employee's principal place. of employment
regardless of where the family residence is maintained like business trips. It includes transportation, meals, and
lodging (R.R. No. 02-40 Secs 65 and 66). Thus:
(1) Transportation expenses from main office to branch or from branch to main office are deductible;
(2) Transportation expenses from office to home or from home to office are not deductible: and
(3) If company car is utilized both for business or personal use, the allowable deduction must be in
proportion to the use for business (RMC 5-11).
Under Section 27(C), the following are exempt government-owned or controlled corporations (GOCC):
(1) Government Service Insurance System (GSIS)
(2) Social Security System (SSS)
(3) Philippine Health Insurance Corporation (PHIC)
(4) Local Water Districts (NIRC, Sec. 27(C))
Note: PAGCOR is included in the list pursuant to R.A. No. 9337. However, according to the case of PAGCOR vs. BIR
(2011), PAGCOR is exempt as regards to its income derived from gaming operations. It is taxable in so far as its
income from other related services is concerned.
Note: Under Sec. 27(C) of NIRC, PCSO is among the list of GOCCs, agencies or instrumentalities that are exempt
from payment of corporate income tax. Under the TRAIN Law, PCSO is no longer exempt from payment of
corporate income tax.
In addition to the list of exemptions enumerated in Section 30, there are also two (3) rulings that govern the
exemptions of charitable institutions:
(NOTE: However, St. Luke’s Medical Center Inc. is not qualified as an exempt charitable hospital because it
does not operate exclusively for charitable purposes as it is in fact derives income from paying patients.)
3. In the DLSU case, the Supreme Court held that according to Art. 14 Sec. 4 par. 3 there are two
requisites for full tax exemption:
Note: According to TRAIN Law, the ITR shall consist a maximum of four (4) pages in paper OR electronic form. It
shall also contain the information as required in ITRs of individual taxpayers. These requirements shall not
affect the implementation of Tax Incentives Management and Transparency Act (TIMTA) (NIRC, Sec. 5(B))
Under the creditable withholding tax system, taxes withheld on certain income payments are intended to equal
or at least approximate the tax due of the payee on the said income. The income recipient is still required to file
quarterly and annual income tax return to report the income and/or to pay the difference between the tax
withheld and the tax due on the income. The CWT is creditable from income tax liability at the end of the taxable
year. The rate may be at the rate of not less than 1% but not more than 32% as may be imposed by the Secretary
of Finance, upon the recommendation of the Commissioner. (Revenue Regulation 2-98, Section 57 of Tax Code,
Section 79 of Tax Code, Philippine Income Tax, Mamalateo, 2010).
Q: PAL filed a refund claim for its final taxes withheld on its interest income from its deposits with various
banks, pursuant to its exemption under its franchise. CIR denied the claim arguing that PAL failed to prove
the remittance of the taxes withheld. Rule.
A: The certificate of creditable tax withheld at source is the competent proof to establish the fact that taxes are
withheld. It is not necessary for the person who executed and prepared the certificate of creditable tax withheld
at source to be presented and to testify personally to prove the authenticity of the certificates (PAL v. CIR, 2018).
ESTATE TAX
RCs, NRC,s and RAs are liable for estate taxes on all of their properties at the time of their death, which
properties may be real or personal, tangible or intangible, wherever they may be situated.
Q: What is the current rate of Estate Tax to be collected and paid upon the transfer?
A: 6% based on the value of such net estate.
Q: For purposes of computing estate tax, how is the term “residence” interpreted? How may one change his
or her residence?
A: For purposes of estate taxation, “residence” refers to domicile, the permanent home or the place to which
whenever absent, one intends to return (animus revertendi), and depends on facts and circumstances, in the
sense that they disclose intent. It is therefore, not necessarily the actual place of residence. (Corre v. Tan Corre,
1956). To effect the abandonment of one’s domicile, there must be 1.) a deliberate and provable choice of a new
domicile, coupled with 2.) actual residence in the place chosen, with 3.) a declared or provable intent that it
should be one’s fixed and permanent place of abode, one’s home. (Velilla v. Posadas, 1935).
Q: When do you file the estate tax return? Where do you file the estate tax return?
A: The estate tax return must be filed within one (1) year from death of the decedent. However, this may be
extended for a period not exceeding thirty (30) days but only on meritorious cases. It should be filed:
• If the decedent is a resident – with an authorized agent bank, or Revenue District Officer, Collection
Officer, or duly authorized Treasurer of the city or municipality in which the decedent was
domiciled at the time of his death
• If the decedent is not a resident – with the Office of the Commissioner
Q: A, died intestate, leaving behind his wife B, and his children C, Irene, and Fernando Jr. B renounced her
conjugal share in favor of her favorite child, C. What is the tax implication of the renunciation by B in favor of
C?
A: B is liable for Donor’s Tax. Renunciation by the surviving spouse of his/her share in the conjugal partnership
or absolute community after the dissolution of the marriage in favor of the heirs of the deceased spouse or any
other person/s is subject to donor’s tax whereas general renunciation by an heir, including the surviving spouse,
of his/her share in the hereditary 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
hereditary estate. (Sec. 12, RR 12-2018)
Q: T, in his will, designated his son-in-law, B, as executor. T died leaving behind as heir his only daughter, A.
Who is liable to pay the estate tax?
A: B is liable to pay the estate tax. This is because Section 91(d) of the NIRC and Section 9 of RR 12-2018 provide
that the estate tax imposed by the Code shall be paid by the executor or administrator before the delivery of the
distributive share in the inheritance to any heir or beneficiary.
Q: The mother of a decedent offered masses for which she paid 100,000 pesos in total. How much can the
estate of the decedent deduct from the masses that the mother offered?
A: None. R.A. No. 10963 removed funeral expenses from the items to be excluded in the gross estate of the
decedent. Moreover, any portion of the funeral and burial expenses borne or defrayed by relatives and friends of
the deceased are not deductible. (Sec. 86, NIRC)
DONOR’S TAX
Q: What are the requisites for a transfer made in the ordinary course of business be considered as made for
an adequate and full consideration?
A: If the transfer is made in the ordinary course of business, it will be considered as made for an adequate and
full consideration, if the following requisites are present:
(1) Bona fide transaction
(2) Arm’s length
(3) Free from any donative intent (Section 100, NIRC)
(3) Encumbrances on the property donated if assumed by the donee in the deed of donation;
(4) Donations made to entities exempted under special laws.
Q: What are the nine (9) exempt donations under Sec. 101(a.3) ? CARTER CPS
A: The following are exempt provided it has complied with all the requisites mentioned in Sec. 103.
Charitable Institutions;
Accredited NGOs;
Religious Institutions
Trust Foundations;
Educational Institutions (non-stock and non-profit);
Research Institution;
Cultural Organization;
Philanthropic Organizations; and
Social Welfare Organizations.
Q: Are earnings from Sports Competition(s)/ Tournament(s) exempted from donor’s tax?
A: Yes, it is exempted from donor’s tax under R.A. 7549. (Section 32 b.7. item D of the NIRC - Prizes and Awards in
Sports Competition)
Q: What provisions regarding exemptions from Donor’s Tax were deleted by the “TRAIN” Law?
A: R.A. No. 10963 deleted the provision, which exempted from donor’s tax the dowries, or gifts made by parents
to each of their legitimate, recognized natural, or adopted children on account of marriage.
Q: What are the facts that must be stated in the donor’s tax return? When should it be filed?
A: There must be an accomplished donor’s tax return under oath filed within 30 days after the date the gift is
made stating the following:
(1) Each gift made during the calendar years which is to be included in computing net gifts
(2) Deductions claimed and allowed
(3) Any previous net gifts made during the same calendar year
(4) Names of donee
(5) Relationship of donor to donee
(6) Other information CIR may require
The value-added tax is an indirect tax and the amount of tax may be shifted or passed on to the buyer, transferee
or lessee of the goods, properties or services.”
The term “in the course of trade or business” means the regular conduct or pursuit of a commercial or an
economic activity, including transactions incidental thereto, by any persons regardless of whether or not the
person engaged therein is a non-stock, non-profit private organization (irrespective of the disposition of its net
income and whether or not it sells exclusively to members or their guests), or government entity.
Importation begins when a vessel or aircraft enters the Philippine jurisdiction with the intention to unload
goods/cargo. Importation ends upon the payment of duties, taxes, and other charges due upon the article, or to
be paid at the port of entry and legal permit for withdrawal have been granted. (Sec. 103, CMTA)
Q: What are the requisites for the taxability of sale or exchange or services or lease or use of property?
A:
(1) There is a sale or exchange of service or lease or use of property enumerated in the law or other similar
services
(2) The service is performed or to be performed in the Philippines
(3) The service is in the course of trade of taxpayer’s trade or business or profession
(4) The service is for a valuable consideration actually or constructively received
(5) The service is not exempt under the Tax Code, special law, or international agreement
Q: A is engaged in the business of baking pastries, which she sells to different restaurants. She bought delivery
vans to meet her client’s demands. After 2 years, she sold one of the delivery vans. Is the sale of the delivery
van subject to VAT?
A: Yes. Any sale, barter, or exchange of goods and services in the course of trade or business is subject to VAT.
Section 105 makes use of the phrase “in the course of trade or business”, which means the regular conduct or
pursuit of a commercial activity or an economic activity, including transactions incidental thereto. The sale of a
vehicle used in the business of the taxpayer, even though isolated, is subject to VAT as the transaction was an
incidental transaction made in the course of the taxpayer’s trade or business. (Mindanao II Geothermal
Partnership v. CIR, 2013).
Q: What is the consequence if a tax-exempt person transfers imported goods to a non-exempt person?
A: The buyer or transferee shall be considered as an importer and shall be held liable for VAT and other internal
revenue taxes due on such importation
Q: What is the effect when a tax-exempt entity subsequently sells imported articles to a non-tax exempt
entity?
A: When a person who was exempt from the VAT on his importation subsequently sells in the Philippines such
imported article to a non-exempt person or entity, the purchaser will be required to pay the VAT.
Q: What is the difference between Zero-rated VAT transactions from Effectively Zero-rated VAT
transactions?
A:
Zero-rated VAT Transaction Effectively Zero-rated VAT Transaction
A zero-rated transaction is a taxable transaction for
An effectively zero-rated sale, on the other hand, is a
VAT purposes, but shall not result in any output tax.
kind of zero-rated transaction, which refers to the
However, the input tax on purchases of goods,
local sale of goods, properties and services by a VAT-
properties, or services, related to such zero-rated
registered person to an entity that was granted
sale, shall be available as a tax credit or refund in
indirect tax exemption under special laws or
accordance with existing regulations. Under this
international agreements. Since the buyer is exempt
type of sale, no VAT shall be shifted or passed-on by
from indirect tax, the seller cannot pass on the VAT
VAT-registered sellers/suppliers from the Customs
and therefore, the exemption enjoyed by the buyer
Territory on their sale, barter or exchange of goods,
shall extend to the seller, making the sale effectively
properties, or services to the subject registered
zero-rated.
Freeport Zone Enterprises.
(1) Sale or importation of agricultural and marine food products in their original state, livestock and poultry of
a kind generally used as, or yielding or producing foods for human consumption; and breeding stock and
genetic materials therefor;
(2) Sale or importation of fertilizers, seeds, seedlings and fingerlings, fish, prawn, livestock and poultry feeds,
including ingredients, whether locally produced or imported, used in the manufacture of finished feeds
(except specialty feeds for race horses, fighting cocks, aquarium fish, zoo animals and other animals
generally considered as pets);
(3) Importation of personal and household effects belonging to residents of the Philippines returning from
abroad and non-resident citizens coming to resettle in the Philippines; Provided, that such goods are
exempt from customs duties under the Tariff and Customs Code of the Philippines;
(4) Importation of professional instruments and implements, tools of trade, occupation or employment,
wearing apparel, domestic animals, and personal and household effects belonging to persons coming to
settle in the Philippines or Filipinos or their families and descendants who are now residents or citizens of
other countries, such parties hereinafter referred to as overseas Filipinos, in quantities and of the class
suitable to the profession, rank or position of the persons importing said items, for their own use and not
for barter or sale, accompanying such persons, or arriving within a reasonable time: Provided, That the
Bureau of Customs may, upon the production of satisfactory evidence that such persons are actually coming
to settle in the Philippines and that the goods are brought from their former place of abode, exempt such
goods from payment of duties and taxes: Provided, further, that vehicles, vessels, aircrafts, machineries and
other similar goods for use in manufacture, shall not fall within this classification and shall therefore be
subject to duties, taxes and other charges;
(5) Services subject to percentage tax under Title V of the Code, as enumerated below:
a. Sale or lease of goods or properties or the performance of services of non-VAT registered persons,
other than the transactions mentioned in paragraphs (A) to (U) of Sec. 109(1) of the Tax Code, the
gross annual sales and/or receipts of which does not exceed the amount of P3,000,000;
b. Services rendered by domestic common carriers by land, for the transport of passengers and
keepers of garages (Sec. 117);
c. Services rendered by international air/shipping carriers (Sec. 118);
d. Services rendered by franchise grantees of radio and/or television broadcasting whose annual gross
receipts of the preceding year do not exceed P10,000,000, and by franchise grantees of gas and
water utilities (Sec. 119);
e. Service rendered for overseas dispatch, message or conversation originating from the Philippines
(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 (Sec.123);
g. Services rendered by fire, marine or miscellaneous insurance agents of foreign insurance companies
(Sec. 124);
h. Services of proprietors, lessees or operators of cockpits, cabarets, night or day clubs, boxing
exhibitions, professional basketball games, Jai-Alai and race tracks (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 (Sec. 127).
(6) Services by agricultural contract growers and milling for others of palay into rice, corn into grits, and sugar
cane into raw sugar;
(7) Medical, dental, hospital and veterinary services except those rendered by professionals;
a. Laboratory services are exempted. If the hospital or clinic operates a pharmacy or drug store, the
sale of drugs and medicine is subject to VAT.
b. Professionals refer to doctors
(8) Educational services rendered by private educational institutions duly accredited by the Department of
Education (DepED), the Commission on Higher Education (CHED) and the Technical Education and Skills
Development Authority (TESDA) and those rendered by the government educational institutions;
a. “Educational services” shall refer to academic, technical or vocational education provided by private
educational institutions duly accredited by the DepED, the CHED and TESDA and those rendered
by government educational institutions and it does not include seminars, in-service training, review
classes and other similar services rendered by persons who are not accredited by the mentioned
agencies.
(9) Services rendered by individuals pursuant to an employer-employee relationship
a. Contract of contractual employees are subject to VAT
b. Contract of project employees are not subject to VAT
(10) 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;
(11) Transactions which are exempt under international agreements to which the Philippines is a signatory or
under special laws except those granted under P.D. No. 529 - Petroleum Exploration Concessionaires under
the Petroleum Act of 1949;
(12) Sales by agricultural cooperatives duly registered and in good standing with the Cooperative Development
Authority (CDA) to their members, as well as of their produce, whether in its original state or processed
form, to non-members, their importation of direct farm inputs, machineries and equipment, including spare
parts thereof, to be used directly and exclusively in the production and/or processing of their produce;
a. Sale by agricultural cooperatives to non-members can only be exempted from VAT if the producer
of the agricultural products sold is the cooperative itself. If the cooperative is not the producer (e.g.
trader), then only those sales to its members shall be exempted from VAT.
(13) Gross receipts from lending activities by credit or multi-purpose cooperatives duly registered and in good
standing with the Cooperative Development Authority;
(14) Sales by non-agricultural, non-electric and non-credit cooperatives duly registered with and in good
standing with CDA; Provided, that the share capital contribution of each member does not exceed Fifteen
Thousand Pesos (P15,000.00) and regardless of the aggregate capital and net surplus ratably distributed
among the members;
a. Importation by non-agricultural, non-electric and non-credit cooperatives of machineries and
equipment, including spare parts thereof, to be used by them are subject to VAT.
(15) Export sales by persons who are not VAT-registered;
(16) The following sales of real properties are exempt from VAT, namely:
a. Sale of real properties not primarily held for sale to customers or held for lease in the ordinary
course of trade or business;
b. Sale of real properties utilized for low-cost housing as defined by RA No. 7279, otherwise known as
the "Urban Development and Housing Act of 1992" and other related laws, such as RA No. 7835 and
RA No. 8763;
i. “Low-cost housing” refers to housing projects intended for homeless low-income family
beneficiaries, undertaken by the Government or private developers, which may either be
a subdivision or a condominium registered and licensed by the Housing and Land Use
Regulatory Board/Housing (HLURB) under BP Blg. 220, PD No. 957 or any other similar law,
wherein the unit selling price is within the selling price per unit as set by the Housing and
Urban Development Coordinating Council (HUDCC) pursuant to RA No. 7279 otherwise
known as the “Urban Development and Housing Act of 1992” and other laws.
c. Sale of real properties utilized for socialized housing as defined under RA No. 7279, and other related
laws, such as RA No. 7835 and RA No. 8763, wherein the price ceiling per unit is P450,000.00 or as
may from time to time be determined by the HUDCC and the NEDA and other related laws.
“Socialized housing” refers to the housing programs and projects covering houses and lots or home
lots only undertaken by the Government or the private sector for the underprivileged and homeless
citizens which shall include sites and services development, long-term financing, liberated terms
on interest payments, and such other benefits in accordance with the provisions of RA 7279 (Urban
Development and Housing Act of 1992) and RA 7835 and RA 8763. “Socialized housing” shall also
refer to projects intended for the underprivileged and homeless wherein the housing package
selling price is within the lowest interest rates under the Unified Home Lending Program (UHLP)
or any equivalent housing program of the Government, the private sector or non-government
organizations.
d. Sale of residential lot valued at P1,500,000.00 and below, or house & lot and other residential
dwellings valued at P2,500,000.00 and below, as adjusted in 2011 using the 2010 Consumer Price
Index.
If two or more adjacent residential lots are sold or disposed in favor of one buyer, for the purpose
of utilizing the lots as one residential lot, the sale shall be exempt from VAT only if the aggregate
value of the lots do not exceed P1,5000,000.00. Adjacent residential lots, although covered by the
separate titles and/or separate tax declarations, when sold or disposed to one and the same buyer,
whether covered by one or separate Deed of Conveyance, shall be presumed as a sale of one
residential lot.
(17) Lease of residential units with a monthly rental per unit not exceeding P15,000.00.
The foregoing notwithstanding, lease of residential units where the monthly rental per unit exceeds
P15,000.00 but the aggregate of such rentals of the lessor during the year do not exceed P3,000,000.00
shall likewise be exempt from VAT, however the same shall be subjected to 3% percentage tax.
(18) Sale, importation, printing or publication of books and any newspaper, magazine, review or bulletin which
appears at regular intervals with fixed prices for subscription and sale and which is not devoted principally
to the publication of paid advertisements;
(19) Transport of passengers by international carriers;
(20) Sale, importation or lease of passenger or cargo vessels and aircraft, including engine equipment and spare
parts thereof for domestic or international transport operations; Provided, however, that the exemption
from VAT on the importation and local purchase of passenger and/or cargo vessels shall be subject to the
requirements on restriction on vessel importation and mandatory vessel retirement program of Maritime
Industry Authority (MARINA);
(21) Importation of fuel, goods and supplies by persons engaged in international shipping or air transport
operations: Provided, That the fuel, goods and supplies shall be used for international shipping or air
transport operations;
(22) Services of banks, non-bank financial intermediaries performing quasi-banking functions, and other non-
bank financial intermediaries, such as money changers and pawnshops, subject to percentage tax under
Sections 121 and 122, respectively of the Tax Code;
(23) Sale or lease of goods and services to senior citizens and persons with disabilities, as provided under RA
Nos. 9994 (Expanded Senior Citizens Act of 2010) and 10754 (An Act Expanding the Benefits and Privileges
of Persons with Disability), respectively;
(24) Transfer of Property pursuant to Sec. 40(C)(2) of the Tax Code, as amended;
(25) Association dues, membership fees, and other assessments and charges collected on a purely
reimbursement basis by homeowners’ associations and condominium corporations established under RA
No. 9904 (Magna Carta for Homeowners and Homeowners’ Association) and RA No. 4726 (The Condominium
Act), respectively;
(26) Sale of gold to the Bangko Sentral ng Pilipinas;
(27) Sale of drugs and medicines prescribed for diabetes, high cholesterol, and hypertension beginning January
1, 2019, as determined by the Department of Health; and
(28) Sale or lease of goods or properties or the performance of services other than the transactions mentioned
in the preceding paragraphs, the gross annual sales and/or receipts do not exceed the amount of
P3,000,000.00.
Output tax is the VAT due on the sale or lease or taxable goods, properties or services by an VAT-registered
person.
Q: What are the requisites for a claim for refund or tax credit for unutilized input value-added tax (VAT)?
A:
(1) the taxpayer is VAT-registered;
(2) the taxpayer is engaged in zero-rated or effectively zero-rated sales;
(3) the input taxes are due or paid;
(4) the input taxes are not transitional input taxes;
(5) the input taxes have not been applied against output taxes during and in the succeeding quarters;
(6) the input taxes claimed are attributable to zero-rated or effectively zero-rated sales;
(7) for zero-rated sales under Section 106(A)(2)(1) and (2); 106(B); and 108(B)(1) and (2), the acceptable foreign
currency exchange proceeds have been duly accounted for in accordance with the rules and regulations
of the Bangko Sentral ng Pilipinas;
(8) 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
(9) the claim is filed within two years after the close of the taxable quarter when such sales were made
(Luzon Hydro Corp. v. CIR, 2013)
Memory Aid for the Requisites of Tax Credit/Refund involving VAT: PRICE
Made within the Prescribed period (Sec. 112 - Two (2) years from close of the taxable quarter when such
sales were made)
Taxpayer is VAT-Registered
Input tax which has not been applied, credited, or deducted against output tax
Creditable input tax attributable to zero-rated sales or effectively zero-rated transactions
May cover Export sales
Q: What are the required information to be placed in an invoice to be considered as VAT exempt or zero-
rated?
A: In a claim for tax refund or tax credit, the applicant must prove not only entitlement to the claim but also
compliance with all the documentary and evidentiary requirements therefor. Section 110(A)(1) of the NIRC
provides that creditable input taxes must be evidenced by a VAT invoice or official receipt, which must, in turn,
comply with Sections 237 and 238 of the same law, as well as Section 4.108.1 of RR 7-95.
The foregoing provisions require, inter alia, that an invoice must reflect, as required by law:
(1) the BIR Permit to Print;
(2) the TIN-VAT of the purchaser; and
(3) the word "zero-rated" imprinted thereon. In this relation, failure to comply with the said invoicing
requirements provides sufficient ground to deny a claim for tax refund or tax credit.
A VAT-registered taxpayer is required to comply with all the VAT invoicing requirements to be able to file for a
claim for input taxes on domestic purchase for goods or services attributable to zero-rated sales. A "VAT invoice"
is an invoice that meets the requirements of Section 4.108-1 of RR 7-95. RR-7-95 expressly states that "All
purchases covered by invoice other than a VAT invoice shall not give rise to any input tax. (J.R.A. Philippines, Inc.
v. CIR, G.R. No. 171307, August 28, 2013)
Q: What are the steps in the application for a tax credit or tax refund?
A:
(1) Application with the BIR
(2) Appeal to the CTA in division within 30 days after CIR denies the claim within the 90-day period; or
within 30 days from the expiration of the 120-day period if the CIR does not act within the 120-day
period.
(3) Appeal to the CTA en banc
(4) Appeal to the Supreme Court
Q: What are the rules with regard to the “two-year rule” in the filing of administrative and judicial claims for
refund?
A: The rules are summarized in CIR v. Mindanao II Geothermal (2014)
(1) It is only the administrative claim that must be filed within the two-year prescriptive period (Aichi
Forging doctrine)
(2) The proper reckoning date for the two-year prescriptive period is the close of the taxable quarter when
the relevant sales were made (Mirant, San Roque doctrines)
(3) The taxpayer can file the judicial claim in one of two ways:
a. File the judicial claim by way of appeal within 30 days after CIR denies the claim within the 120-
day period; or
b. File the judicial claim by appealing the CIR’s inaction within 30 days from the lapse or expiration
of the 120-day period.
(4) As a general rule, the 30-day period to appeal is both mandatory and jurisdictional (Aichi, San Roque).
Premature filing of the judicial claim, or the filing of a petitioner prior to the lapse of the 120-day period
under Sec. 112(c) of the NIRC and without any adverse decision from the CIR will rob the CTA of its
jurisdiction to entertain the refund case
a. An exception is when BIR Ruling No. DA-489-03 was in force between December 10, 2003
(issuance of BIR Ruling No. DA-489-03) and October 6, 2010 (promulgation of Aichi). The judicial
claim need not await the expiration of the 120-day period and premature filing is allowed.
(5) Late filing is absolutely prohibited, even during the time when BIR Ruling No. DA-489-03 was in force.
Note: TRAIN: 120-day period amended to 90-day period (See discussion on enhanced VAT Refund System).
Q: What are the exceptions to the 120-day period within which refund or tax credit of input taxes shall be
made?
A:
(1) If the Commissioner, through a specific ruling, misleads a particular taxpayer to prematurely file a
judicial claim with the CTA. Such specific ruling is applicable only to such particular taxpayer.
(2) Where the Commissioner, through a general interpretative rule misleads all taxpayers into filing
prematurely judicial claims with the CTA. In these cases, the Commissioner cannot be allowed to later
on question the CTA’s assumption of jurisdiction over such claim since equitable estoppel has set in as
expressly authorized under Section 246 of the Tax Code. (CIR v. San Roque, 2013)
Q: Is BIR Ruling No. DA-489-03, stating that taxpayer-claimant need not wait for the lapse of the 120-day
period before it could seek judicial relief with the CTA by way of Petition for Review, a general interpretative
rule?
A: Yes. It was a response to a query made by a government agency tasked with processing tax refunds and credits,
that is, the One Stop Shop Inter-Agency Tax Credit and Drawback Center of the Department of Finance. This
government agency is also the addressee, or the entity responded to, in BIR Ruling No. DA-489-03. Thus, the
agency was in fact asking the Commissioner what to do in cases like the tax claim where the taxpayer did not
wait for the lapse of the 120-day period. Clearly, BIR Ruling No. DA-489-03 is a general interpretative rule. Thus,
all taxpayers can rely on it from the time of its issuance up to its reversal by this Court where it was held that the
120+30 day periods are mandatory and jurisdictional. (CIR v. San Roque, 2013)
The 90-day period to process and decide, pending the establishment of the enhanced VAT Refund
System shall only be up to the date of approval of the Recommendation Report on such application for
VAT refund by the Commissioner or his duly authorized representative.
However, all claims for refund/tax credit certificate filed prior to January 1, 2018 shall still be governed
by the 120-day processing period.
The Secretary of Finance shall provide transitory rules for the grant of refund under the enhanced VAT
Refund System after the determination of the fulfillment of the condition by the CIR; and
2. All pending VAT refund claims as of December 31, 2017 shall be fully paid in cash by December 31, 2019.
The Department of Finance shall establish a VAT refund center in the BIR and in the Bureau of Customs (BOC)
that will handle the processing and granting of cash refunds of creditable input tax.
NOTE: As amended by TRAIN, beginning January 1, 2023, the filing and payment required under the Tax Code
shall be done 25 days following the close of each taxable quarter.
Q: Where are VAT returns filed? Where is VAT paid?
A: Except as the Commissioner otherwise permits, the return shall be filed with and the tax paid to an authorized
agent bank, Revenue Collection Officer or duly authorized city or municipal Treasurer in the Philippines located
within the revenue district where the taxpayer is registered or required to register.
NOTE: In transactions with the government, should actual input VAT attributable to sales to government exceed
7% of gross payments, the excess may form part of the seller’s expense or cost. If the actual input VAT is less than
7%, the difference should be counted as income.
Q: When is the change in or cessation of status of VAT registered person subject to VAT?
A:
(1) Change of business activity from VAT taxable status to VAT-exempt status
(2) Approval of a request for cancellation of registration due to reversion to exempt status
(3) Approval of a request for cancellation of registration due to a desire to revert to exempt status after the
lapse of 3 consecutive years from the time of registration by a person who voluntarily registered despite
being exempt under Sec. 109 (2) of the Tax Code
(4) Approval of a request for cancellation of registration of one who commenced business with the
expectation of gross sales or receipt exceeding P1,919,500 but who failed to exceed this amount during
the first twelve (12) months of operation
Q: When is the change in or cessation of status of a VAT registered person not subject to VAT?
A:
(1) Change of control in the corporation by the acquisition of controlling interest of the corporation by
another stockholder or group of stockholders. The goods or properties used in the business or those
comprising the stock-in-trade of the corporation will not be considered sold, bartered, or exchanged
despite the change in the ownership interest. However, exchange of property by the corporation
acquiring control for the shares of stocks of the target corporation is subject to VAT
(2) Change in the trade or corporate name of the business
(3) Merger or consolidation of corporations. The unused input tax of the dissolved corporation, as of the
date of merger or consolidation, shall be absorbed by the surviving or new corporation
TAX REMEDIES UNDER THE NATIONAL INTERNAL REVENUE CODE (NIRC)
The exceptions are in cases of false or fraudulent return with intent to evade tax or failure to file a return, the
assessment must be made within 10 years from discovery. Another exception is when there is a waiver of the
statute of limitations in writing.
Q: What is the difference between (1) false return, (2) fraudulent return, and (3) failure to file a return?
A: False return implies deviation from the truth, whether intentional or not. Fraudulent return implies intentional
or deceitful entry with intent to evade the taxes due. Non-filing of a return is the failure or omission to file a
return in the date prescribed by law. (Aznar v. CTA, 1974)
Q: What are the grounds for the suspension of running of the statute of limitations in case of assessments?
A: The running of the statute of limitations on the making of assessment and collection shall be suspended in the
following instances: (P-CORDA)
(1) PERIOD during which the Commissioner is prohibited from making the assessment or beginning
distraint or levy or a proceeding in court and for 60 days thereafter;
(2) When the taxpayer REQUESTS for a reinvestigation which is granted by the Commissioner;
(3) When the taxpayer CANNOT be located in the address given by him in the return filed upon which a tax
is being assessed or collected; except when the taxpayer informs the Commissioner of any change in
address;
(4) When the warrant of DISTRAINT or levy is duly served upon the taxpayer, his authorized representative,
or a member or his household with sufficient discretion, and no property could be located; and
(5) When the taxpayer is OUT of the Philippines (Sec. 223, NIRC)
(6) Where CIR and the taxpayer AGREED in writing for the extension of the assessment, the tax may be
assessed within the period so agreed upon.
Q: What is the effect when both the BIR and the taxpayer did not comply with the rules prescribed in order to
have a valid waiver of prescription?
A: In pari delicto connotes that the two parties to a controversy are equally culpable or guilty and they shall have
no action against each other. However, although the parties are in pari delicto, the Court may interfere and grant
relief at the suit of one of them, where public policy requires its intervention, even though the result may be that
a benefit will be derived by one party who is in equal guilt with the other. To uphold the validity of the waivers
would be consistent with the public policy embodied in the principle that taxes are the lifeblood of the
government, and their prompt and certain availability is an imperious need. The waiver will be valid and the BIR
can make an assessment. (CIR v. Next Mobile, 2015)
Q: Is the failure to strictly comply with notice requirements prescribed under Section 228 of the National
Internal Revenue Code (NIRC) of 1997 and Revenue Regulations (R.R.) No. 12-99 tantamount to a denial of due
process?
A: Yes, it is tantamount to a denial of due process. Section 228 of the NIRC provides that when the Commissioner
or his duly authorized representatives find that proper taxes should be assessed, he shall first notify the taxpayer
of his findings. The taxpayer shall be informed in writing of the law and facts on which the assessment is made;
otherwise, the assessment shall be void. Said provision clearly requires that the taxpayer must first be informed
that he is liable for deficiency taxes through the sending of a PAN. The law imposes a substantive, not merely a
formal requirement. This is further confirmed by Section 3 of RR 12-99, which clearly requires that the sending
of a PAN to the taxpayer to inform him of the assessment made is but part of the due process requirement in the
issuance of a deficiency tax assessment, the absence of which renders nugatory any assessment made by the tax
authorities. The use of the word shall describes the mandatory nature of the service of a PAN. (CIR v. Metro Star
Superama, Inc., 2010)
Q: Can a void Final Decision on Disputed Assessment (FDDA) render the assessment void?
A: NO, a void Final Decision on Disputed Assessment (FDDA) does not ipso facto render the assessment void. It
is the “decision” which is appealable to the CTA and not the assessment. Thereafter, the CIR either issues a
decision on the disputed assessment or fails to act on it and is, therefore, considered denied. The taxpayer may
then appeal the decision on the disputed assessment or the inaction of the CIR. The requirement that “the
taxpayer shall be informed in writing of the law and the facts on which the assessment is made; otherwise the
assessment shall be void” applies to FDDA. Based on Section 3.1.6 of RR No. 12-99, it is clearly necessary for the
BIR to inform the taxpayer of the facts, law, rules and regulations and jurisprudence on which the decision is
based, otherwise, the decision shall be void. While the FDDA indicated the legal provisions relied upon for the
assessment, the basis or the sources of the amounts from which the assessments arose were not shown. The
need for stating the factual basis, i.e., for specifying the source of the amounts used in the assessment, gains
more prominence in the instant case, where the FDDA reflects different amounts than that contained in the
Formal Assessment Notice. Without the statement of the factual basis, or details of the assessment, the FDDA
suffers from the appearance of being a mere arbitrary reduction of the assessment previously reflected in the
Formal Letter to Demand. Thus, the assessment is void. (CIR v. Liquigaz Philippines Corporation, 2016)
Q: What are the instances when the assessment shall become final, executory and demandable?
A: The following are the instances when assessment shall become final, executory and demandable: (RMO 26-16)
(VASMAR)
(1) Failure to file a valid protest within 30 days from receipt of the FLD/FAN;
(2) Failure of the tax payer to appeal to the CIR or the CTA within 30 days from the date of receipt of the
FDDA issued by the Commissioner’s duly authorized representative;
(3) Failure of the tax payer to submit all relevant documents in support of his protest by way of request for
reinvestigation within 60 days from the date of filing thereof;
(4) Failure of the tax payer to timely file a MR or MNT before the CTA div. or failure to appeal to the CTA EB
and SC based on existing Rules of Procedure;
(5) Failure of the tax payer to appeal to the CTA within 30 days from the date of receipt of the FDDA issued
by the Commissioner;
(6) Failure of the tax payer to receive any assessment notices because it was served in the address indicated
in the BIR’s registration database and the TP transferred to a new address or closed/cease operations
without updating and transferring its BIR registration or cancelling its BIR registration, as the case may
be.
Q: Can the CTA still take cognizance of an assessment case, which has become final and unappealable for the
failure of the taxpayer to protest within the 30-day protest period?
A: No, the fact that an assessment has become final for failure of the taxpayer to file a protest within the time
allowed only means that the validity or correctness of the assessment may no longer be questioned on appeal.
(CIR v. Hambrecht & Quist Philippines, Inc., 2010).
Q: When is collection of taxes allowed? What are the prescriptive periods for the collection of taxes?
A: Collection is only allowed when there is already a final assessment made for the determination of the tax due
(Revenue Regulation 18-2013). As a general rule, the prescriptive period to collect taxes due is 5 years from the
date of assessment (Sec. 222, NIRC). The exceptions are the following (Sec. 222, NIRC):
(1) 10 years from discovery in case of false or fraudulent return with intent to evade tax or of failure to file
a return
(2) Tax may be collected on the period agreed upon, when there is a waiver in writing executed before the
five-year period expires with the period agreed upon by Commissioner and taxpayer .
Q: May a final and unappealable assessment give the CIR the right to collect the taxes where such right to
collect has already prescribed?
A: No. The validity of the assessment itself is a separate and distinct issue from the issue of whether the right of
the CIR to collect the validly assessed tax has prescribed. This issue of prescription, being a matter provided for
by the NIRC, is well within the jurisdiction of the CTA to decide. (CIR v. Hambrecht & Quist Philippines, Inc., 2010)
Q: Can the CTA have jurisdiction to inquire into the validity of the undisputed assessment and is not limited
to the timeliness and validity of the collection procedure?
A: Yes. Section 7(a)(1) of RA 1125, An Act Creating the Court of Tax Appeals, the jurisdiction of the CTA over “other
matters arising under the NIRC or other laws or part of law administered by the BIR”, is not limited to the
timeliness and validity of the collection procedure itself. Hence, the court can still look into the validity of the
assessment. (CIR v. Alpha Rigging & Moving Systems, Inc. (Alpha Rigging), 2015)
Q: What are the differences between a request for reconsideration and a request for reinvestigation?
A: Request for Reconsideration is a plea for evaluation of assessment on the basis of existing records without
need of presentation of additional evidence. It does not suspend the period to collect the deficiency tax. Request
for Reinvestigation is a plea for re-evaluation on the basis of newly discovered evidence that will be introduced
for examination for the first time. It suspends the prescriptive period to collect, taxpayer can submit supporting
documents within 60 days (RR 18-2013).
Q: Distinguish Section 229 (Recovery of Tax erroneously paid or Illegally Collected) from Section 112
(Refunds or Tax Credits of Input Tax)
A:
Sec. 112 Sec. 229
Input VAT Any tax erroneously paid or illegally collected
Amount paid is correct and proper Amount paid is “excessively” collected
Only the person legally liable to pay the tax can file
the judicial claim for refund. The person to whom
Claim for refund is filed by the person not liable to
the tax is passed on as part of the purchase price has
pay the Input VAT
no personality to file the judicial claim under Section
229
Prescriptive period for filing a judicial claim – 2 years Prescriptive period for judicial claim – 2 years from
from the close of the taxable quarter when the sale the date of payment of the tax or penalty regardless
was made by the person legally liable to pay the of any supervening cause that may arise after
output VAT payment
(CIR v. San Roque, 2013)
LOCAL TAXATION
Q: What is the nature of the taxing power of the provinces, municipalities and cities? How will the local
government units be able to exercise their taxing powers?
A: The taxing power of the provinces, municipalities and cities is directly conferred by the Constitution by giving
them the authority to create their own sources of revenue. The local government units do not exercise the power
to tax as an inherent power or by a valid delegation of the power by the Congress, but pursuant to a direct
authority conferred by the Constitution. (Mactan Cebu International Airport Authority v. Marcos, 1996; NPC v. City
of Cabanatuan, 2003).
The local government units exercise the power to tax by levying taxes, fees and charges consistent with the basic
policy of local autonomy, and to assess and collect all these taxes, fees and charges, which will exclusively accrue,
to them. The local government units are authorized to pass tax ordinances (levy) and to pursue actions for the
assessment and collection of the taxes imposed in the said ordinances. (Section 129 and 132, Local Government
Code).
Q: Are the LGUs empowered and authorized to create its own sources of revenue and to levy taxes, fees, and
charges?
A: Yes, subject to the provisions of the LGC and consistent with the basic policy of local autonomy, every LGU is
now empowered and authorized to create its own sources of revenue and to levy taxes, fees, and charges which
shall accrue exclusively to the local government unit as well as to apply its resources and assets for productive,
developmental, or welfare purposes, in the exercise or furtherance of their governmental or proprietary powers
and functions. (Ferrer, Jr. v. Bautista, 2015)
Q: What are the specific taxing powers of provinces, cities, municipalities, and barangays?
A:
(1) Provinces:
a. Tax on transfer of real property ownership
b. Tax on the business of printing and publication
c. Franchise tax
d. Tax on sand, gravel, and other resources
e. Professional tax
f. Amusement tax
g. Annual fixed tax for every delivery truck or van of manufacturer or producers, wholesalers of,
dealers, or retailers in certain products
(2) Municipalities:
a. Taxes, fees, and charges not otherwise levied by provinces, except as otherwise provided in the LGC
(3) Cities
a. Taxes, fees, and charges which the province or municipality may impose, except as otherwise
provided in the LGC
(4) Barangays:
a. Barangay taxes on stores or retailers with fixed business establishments
b. Service fees or charges
c. Barangay clearance
d. Other fees and charges
Q: What are the limitations on capacity of LGUs to exercise their taking powers?
A: Section 133 prescribes the limitations on capacity of LGUs to exercise their taking powers. Paragraph (h) if the
said section mentions 2 kinds of taxes, which cannot be imposed by LGUs, namely:
excise tax on articles under the NIRC, and
taxes, fees, or charges on petroleum products.
Q: May LGUs impose taxes on bases or subjects not provided in the Local Government Code?
A: Yes. LGUs may exercise the power to levy taxes. Fees, or charges on any base or subject not otherwise
specifically enumerated in the
(1) Local Government Code or
(2) Taxes under the NIRC or
(3) Other applicable laws.
These taxes, fees, or charges shall not be unjust, excessive, oppressive, confiscatory or contrary to declared
national policy. Additionally, the ordinance levying such taxes, feed, or charges shall not be enacted without any
prior public hearing conducted for the purpose. (Section 151, 152 Local Government Code)
Q: What is the period of assessment and collection of local taxes, fees and charges?
A: The assessment must be made within FIVE (5) years from the date they become due. However, In case of fraud
or intent to evade, it must be made within TEN (10) years from discovery of fraud or intent to evade payment
[Sec. 194]. The collection must be made within FIVE (5) years from the date of assessment by administrative or
judicial action
Q: How does the Local Government Code explain the “Doctrine of the Supremacy of the National Government
over Local Government Units”?
A: The exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the
levy of the Taxes, fees or charges of any kind on the National Government, its agencies and instrumentalities
(Sec.133 (o), LGC).
Q: What are the properties exempt from Real Property Tax? PRC LGC
A: Under Section 234, LGC, the following are exempted from payment of real property tax:
(1) Pollution Control (There must be use of the machinery and equipment)
(2) Real Property owned by the Republic of the Philippines (There must be ownership)
(3) Charitable, Educational, and Religious Institutions (Must be actually, directly, and exclusively used for
such purposes)
(4) Local Water District (There must be use and limited to machineries and equipment)
(5) Government Owned and Controlled Corporations (There must be use)
(6) Cooperatives (There must be ownership of the real property)
*Determination of whether the exception is based on use or ownership is crucial (Dimaampao Lecture).
Q: May real property owned by the government or its instrumentality be subjected to real property tax by the
local government?
A: As a general rule, real property owned by the government is not subject to real property tax. However, such
exemption ceases under Sec 234(a) of the LGC when “the beneficial use thereof has been granted, for a
consideration or otherwise, to a taxable person.” (GSIS v. City Treasurer of Manila, 2009)
Q: Is the Manila International Airport Authority exempt from Real Estate Tax?
A: Yes, MIAA’s Airport Lands and Buildings are exempt from real estate tax imposed by local governments. First,
MIAA is not a government-owned or controlled corporation but an instrumentality of the National Government
and, thus, exempt from local taxation. Second, the real properties of MIAA are owned by the Republic of the
Philippines and, thus, exempt from real estate tax. (Manila International Airport Authority v. Court of Appeals,
2006)
Q: Is the Mactan Cebu International Airport Authority exempt from Real Property Tax?
A: Yes. Mactan-Cebu International Airport Authority (MCIAA) exempt from Real Property Tax because it is an
instrumentality of the government. Thus, its properties actually, solely and exclusively used for public purposes,
consisting of the airport terminal building, airfield, runway, taxiway and the lots on which they are situated, are
not subject to real property tax and respondent City is not justified in collecting taxes from petitioner over said
properties. (Mactan Cebu International Airport Authority (MCIAA) v. City of Lapu-Lapu, 2015)
Q: What are the five (5) features/characteristics of an instrumentality of the national government that make
it exempt from (real property) taxation? NEVEA
A: Not integrated within the department framework;
Endowed with corporate powers;
Vested with jurisdiction or special powers by law;
Enjoys operational autonomy; and
Administers special funds
Q: What is the procedure for payment under protest in real property taxation?
A:
(1) Pay the tax under protest and an annotation of “paid under protest” must be stated in the receipt
(2) File written protest with local treasurer within 30 days from payment of the tax
(3) Treasurer must decide within 60 days from receipt of the protest
(4) Appeal to the LBAA within 60 days from the treasurer’s decision or inaction
(5) LBAA must decide within 120 days
(6) Appeal the LBAA decision to the CBAA within 30 days from receipt of adverse decision
(7) Appeal CBAA decision to CTA en banc within 30 days from receipt of the adverse decision
Appeal CTA en banc decision to the SC within 15 days from receipt of the adverse decision
Q: What is the period for filing a protest of the assessment issued by the City Treasurer?
A: Within sixty (60) days from the receipt of the notice of assessment, the taxpayer may file a written protest with
the local treasurer contesting the assessment; otherwise, the assessment shall become final and executory.
(Section 195, LGC)
Q: What is the prescriptive period for the claim of refund or tax credit?
A: No case or proceeding shall be entertained in any court after the expiration of two (2) years from the date of
the payment of such tax, fee, or charge, or from the date the taxpayer is entitled to a refund or credit. (Section
196, LGC)
Q: What are the remedies of the local governments in collecting real property tax?
A: Local government has two remedies for the collection of real property tax:
(1) by administrative action through levy on real property; and
(2) by judicial action.
Under Sections 257 and 258 of the LGC, the basic real property tax constitutes as a lien on the property subject
to the tax, which may be levied upon through the issuance of a warrant. The local government unit concerned
may also enforce the collection of the basic real property tax by civil action in any court of competent jurisdiction.
(Republic vs. City of Kidapawan, 2005)
Q: What are the remedies available to a taxpayer for real property tax?
A: If the issue involves the validity of the tax ordinance, the taxpayer may raise the question on its legality before
the Secretary of Justice. If it involves the constitutionality of the ordinance, the same must be raised before the
regular courts.
If the issue involves the correctness, reasonableness or excessiveness of the assessment, the taxpayer can avail
of the remedies under Secs. 226 to 231 of the Local Government Code.
Q: Does the Local Board of Assessment Appeals (LBAA) and Central Board of Assessment Appeals (CBAA) has
jurisdiction to review the constitutionality of a tax ordinance, which gave rise to the assessment?
A: Yes. Even though respondent’s appeal to the LBAA and CBAA likewise raises the issue of constitutionality of
Paranaque City Ordinance No. 03-06, the same does not divest the LBAA of its jurisdiction to hear and decide on
the correctness of the new assessment, which is the very subject of respondent’s appeal. (City Assessor of
Paranaque v. Portal Holdings, Inc., CTA EB Case No. 998, 2016)
JUDICIAL REMEDIES
Q: Among the decisions listed above, what are directly appealable to the CTA en banc?
A: Only two are directly appealable to the CTA en banc, specifically:
(1) Decisions of the Regional Trial Court
(2) Decisions of the Central Board of Assessment Appeals
All the rest must first be appealed to the CTA in Division. The 30-day period must be observed, either from
the receipt of the decision or from the lapse of the prescriptive period. This is applicable for petition for
review under Rule 42 and 43.
Q: What are the decisions that are appealable to the Court of Tax Appeals?
A: The following are the decisions appealable to the Court of Tax Appeals: (BIR CTA SC)
(1) Bureau of Internal Revenue decisions
(2) Inaction of the BIR on disputed assessments or tax refund
(3) Regional Trial Court’s decisions
(4) Customs Commissioner’s decisions
(5) Secretary of Trade and Industry’s decisions involving the imposition of countervailing and dumping duties
of non-agricultural products
(6) Secretary of Agriculture’s decisions involving imposition of countervailing and dumping duties of
agricultural products
(7) Secretary of Finance’s decisions on automatic review cases
(8) Central Board of Assessment Appeals’ decisions
Q: To whom must the PAGCOR appeal the assessments made against it by the BIR? Is it:
(1) the Court of Tax Appeals under Republic Act No. 1125, Section 7(1) of which grants the CTA the
exclusive appellate jurisdiction to review, among others, the decisions of the Commissioner of
Internal Revenue "in cases involving disputed assessments, refunds of internal revenue taxes, fees or
other charges, penalties imposed in relation thereto, or other matters arising under the National
Internal Revenue Code (NIRC) or other law or part of law administered by the Bureau of Internal
Revenue”; or
(2) the Secretary of Justice under P.D. No. 242, with regard to the adjudication of all disputes/claims and
controversies, solely between or among the departments, bureaus, offices, agencies and
instrumentalities of the National Government, including government--owned and controlled
corporations, such as those arising from the interpretation and application of statues, contracts or
agreements; and is also the latter enactment?
A: The CTA. Citing PNOC v. CA (2005), the Court held that following the rule on statutory construction involving
a general and a special law (generalia specialibus non derogant), then P.D. No. 242 should not affect R.A. No. 1125.
R.A. No. 1125, specifically Section 7 thereof on the jurisdiction of the CTA, constitutes an exception to P.D. No.
242. Disputes, claims and controversies, tailing under Section 7 of R.A. No. 1125, even though solely among
government offices, agencies, and instrumentalities, including government-owned and controlled corporations,
remain in the exclusive appellate jurisdiction of the CTA. Such a construction resolves the alleged inconsistency
or conflict between the two statutes. (CIR v. Secretary of Justice and PAGCOR, 2016)
Q: Where do you appeal a Revenue Memorandum Circular, Revenue Memorandum Order, or rulings of the
BIR?
A: In accordance with Section 4 of the NIRC, decisions or BIR rulings, BIR memorandum circulars or orders of
the BIR Commissioner may be subject to approval by the Secretary of Finance, 30 days from its promulgation.
Q: In the last paragraph of Section 228, how do you apply the 180-day period?
A: There are two remedies:
(1) If a decision has been rendered within that 180-day period, the remedy is to appeal the decision of the BIR
to the CTA in Division.
(2) If NO decision has been rendered:
a. The remedy is to appeal such inaction within 30 days from the lapse of that 180-day period.
b. Taxpayer may await the decision of the BIR, and within 30 days from the receipt thereof file an appeal
to the Court of Tax Appeals. (NOTE: prevailing jurisprudence although not mentioned in Section 228.)
Q: Does the CTA en banc have jurisdiction on Petitions for Certiorari under Rule 65?
A: Yes, the CTA en banc have jurisdiction on petition for certiorari under Rule 65. (CE Casecnan Water and Energy
Company, Inc. v. Province of Nueva Ecija, 2015, citing City of Manila v. Grecia-Cuerdo, 2014)
Article 8, Section 1, par. 2 of the Constitution provides of the meaning of judicial power. It includes the power to
determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction,
which is precisely the ground under Rule 65. The Supreme Court further ruled that CTA has the power to take
cognizance of this petition since it is still a court established by law.
Q: Does the CTA en banc have jurisdiction over Petitions for Annulment of Judgment?
A: No. According to the ruling in CIR vs. Kepco Ilijan Corporation (2016), CTA en banc has no jurisdiction over such
petition for annulment of judgment involving decisions of the CTA in Division.
Q: Does the CTA en banc have jurisdiction over interlocutory orders of the CTA in Division?
A: No, an interlocutory order of the CTA in Division is not appealable to the CTA en banc. However, an
interlocutory of the CTA in Division under Rule 65 can be directly appealable to the Supreme Court. Although the
court made no categorical ruling on the propriety of an appeal of an interlocutory order directly with the SC, the
case of Pacquiao vs. CIR (2016) still ruled to that effect.
Q: Can the CTA pass on the constitutionality of a Revenue Regulation or Revenue Memorandum Circular, as
opposed to regular courts?
A: Yes. The CTA can now rule on the validity or constitutionality of a revenue regulation or revenue memorandum
circular but only if it is involved in a tax assessment case or claim for tax refund. (British American Tobacco v.
Camacho, 2008; Philamlife v. Sec. of Finance, 2014).
Q: Can a civil or criminal action for recovery of taxes be filed without the approval of the CIR?
A: No. The approval of the CIR is required under the NIRC. Regional Directors may also approve the filing of cases
if this power is expressly delegated to him by the CIR.
Q: What are the instances when the running of prescriptive period for assessment and collection of taxes will
be suspended?
A:
(a) The treasurer is legally prevented from making the assessment of collection;
(b) The taxpayer requests for a reinvestigation and executes a waiver in writing before expiration of the
period within which to assess or collect; and
(c) The taxpayer is out of the country or otherwise cannot be located. (Sec. 194 (d), LGC)
Q: What are some instances when the running of the prescriptive period for assessment and collection of
taxes will be suspended?
A:
(1) The treasurer is legally prevented from making the assessment of collection;
(2) The taxpayer requests for reinvestigation and executes a waiver in writing before expiration of the
period within which to assess or collect; and
(3) The taxpayer is out of the country or otherwise cannot be located.
Q: Does an appeal to the CTA suspend the collection of tax?
A: No. Appeal to the CTA shall not suspend the payment, levy, distraint, and sale of taxpayer’s property. No appeal
taken to the CTA from the decision of the CIR, or the Commissioner of Customs, or the RTC, provincial, city, or
municipal treasurer, or the Secretary of Finance, the Secretary of Trade and Industry, or the Secretary of
Agriculture, as the case may be, shall suspend the payment, levy, distraint, and/or sale of any property of the
taxpayer for the satisfaction of his tax liability as provided by existing law. When in the opinion of the Court, the
collection by aforementioned government agencies may jeopardize the interest of the Government and/or
taxpayer either to deposit the amount claimed or to file a surety bond for not more than double the amount with
the court. (Sec. 9, RA 9282)
For failure of the State Prosecutor to comply with the order to submit to the CTA the written approval issued by
the CIR to file the case and the records of the preliminary investigation, the case was dismissed, without
prejudice. (People v. Renne Samala, 2011)
NOTE: A prior assessment is not a condition sine qua non for criminal prosecution of tax evasion. (J. Dimaampao)
“Patience and perseverance have a magical effect before which difficulties disappear and obstacles vanish.”
- John Adams