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2013
For
resolution
are
the
following
issues:
(1)
whether
petitioner
is
exempt
from
the
payment
of
building
permit
and
related
fees
imposed
under
the
National
Building
Code;
and
(2)
whether
the
parcel
of
land
owned
by
petitioner
which
has
been
assessed
for
real
property
tax
is
likewise
exempt.
R.A.
No.
6055
granted
tax
exemptions
to
educational
institutions
like
petitioner
which
converted
to
non-‐
stock,
non-‐profit
educational
foundations.
Section
8
of
said
law
provides:
SECTION
8.
The
Foundation
shall
be
exempt
from
the
payment
of
all
taxes,
import
duties,
assessments,
and
other
charges
imposed
by
the
Government
on
all
income
derived
from
or
property,
real
or
personal,
used
exclusively
for
the
educational
activities
of
the
Foundation.
On
February
19,
1977,
Presidential
Decree
(P.D.)
No.
1096
was
issued
adopting
the
National
Building
Code
of
the
Philippines.
The
said
Code
requires
every
person,
firm
or
corporation,
including
any
agency
or
instrumentality
of
the
government
to
obtain
a
building
permit
for
any
construction,
alteration
or
repair
of
any
building
or
structure.
19
Building
permit
refers
to
"a
document
issued
by
the
Building
Official
.
.
.
to
an
owner/applicant
to
proceed
with
the
construction,
installation,
addition,
alteration,
renovation,
conversion,
repair,
moving,
demolition
or
other
work
activity
of
a
specific
project/building/structure
or
portions
thereof
after
the
accompanying
principal
plans,
specifications
and
other
pertinent
documents
with
the
duly
notarized
application
are
found
satisfactory
and
substantially
conforming
with
the
National
Building
Code
of
the
Philippines
.
.
.
and
its
Implementing
Rules
and
Regulations
(IRR)."
Building
permit
fees
refers
to
the
basic
permit
fee
and
other
charges
imposed
under
the
National
Building
Code.
Exempted
from
the
payment
of
building
permit
fees
are:
(1)
public
buildings
and
(2)
traditional
indigenous
family
dwellings.
Not
being
expressly
included
in
the
enumeration
of
structures
to
which
the
building
permit
fees
do
not
apply,
petitioner's
claim
for
exemption
rests
solely
on
its
interpretation
of
the
term
"other
charges
imposed
by
the
National
Government"
in
the
tax
exemption
clause
of
R.A.
No.
6055.
A
"charge"
is
broadly
defined
as
the
"price
of,
or
rate
for,
something,"
while
the
word
"fee"
pertains
to
a
"charge
fixed
by
law
for
services
of
public
officers
or
for
use
of
a
privilege
under
control
of
government."
As
used
in
the
Local
Government
Code
of
1991
(R.A.
No.
7160),
charges
refers
to
pecuniary
liability,
as
rents
or
fees
against
persons
or
property,
while
fee
means
a
charge
fixed
by
law
or
ordinance
for
the
regulation
or
inspection
of
a
business
or
activity.
That
"charges"
in
its
ordinary
meaning
appears
to
be
a
general
term
which
could
cover
a
specific
"fee"
does
not
support
petitioner's
position
that
building
permit
fees
are
among
those
"other
charges"
from
1
which
it
was
expressly
exempted.
Note
that
the
"other
charges"
mentioned
in
Sec.
8
of
R.A.
No.
6055
is
qualified
by
the
words
"imposed
by
the
Government
on
all
.
.
.
property
used
exclusively
for
the
educational
activities
of
the
foundation."
Building
permit
fees
are
not
impositions
on
property
but
on
the
activity
subject
of
government
regulation.
While
it
may
be
argued
that
the
fees
relate
to
particular
properties,
i.e.,
buildings
and
structures,
they
are
actually
imposed
on
certain
activities
the
owner
may
conduct
either
to
build
such
structures
or
to
repair,
alter,
renovate
or
demolish
the
same.
This
is
evident
from
the
following
provisions
of
the
National
Building
Code:
It
is
hereby
declared
to
be
the
policy
of
the
State
to
safeguard
life,
health,
property,
and
public
welfare,
consistent
with
the
principles
of
sound
environmental
management
and
control;
and
to
this
end,
make
it
the
purpose
of
this
Code
to
provide
for
all
buildings
and
structures,
a
framework
of
minimum
standards
and
requirements
to
regulate
and
control
their
location,
site,
design
quality
of
materials,
construction,
use,
occupancy,
and
maintenance.
(a)
The
provisions
of
this
Code
shall
apply
to
the
design,
location,
sitting,
construction,
alteration,
repair,
conversion,
use,
occupancy,
maintenance,
moving,
demolition
of,
and
addition
to
public
and
private
buildings
and
structures,
except
traditional
indigenous
family
dwellings
as
defined
herein.
No
person,
firm
or
corporation,
including
any
agency
or
instrumentality
of
the
government
shall
erect,
construct,
alter,
repair,
move,
convert
or
demolish
any
building
or
structure
or
cause
the
same
to
be
done
without
first
obtaining
a
building
permit
therefor
from
the
Building
Official
assigned
in
the
place
where
the
subject
building
is
located
or
the
building
work
is
to
be
done.
That
a
building
permit
fee
is
a
regulatory
imposition
is
highlighted
by
the
fact
that
in
processing
an
application
for
a
building
permit,
the
Building
Official
shall
see
to
it
that
the
applicant
satisfies
and
conforms
with
approved
standard
requirements
on
zoning
and
land
use,
lines
and
grades,
structural
design,
sanitary
and
sewerage,
environmental
health,
electrical
and
mechanical
safety
as
well
as
with
other
rules
and
regulations
implementing
the
National
Building
Code.
Thus,
ancillary
permits
such
as
electrical
permit,
sanitary
permit
and
zoning
clearance
must
also
be
secured
and
the
corresponding
fees
paid
before
a
building
permit
may
be
issued.
And
as
can
be
gleaned
from
the
implementing
rules
and
regulations
of
the
National
Building
Code,
clearances
from
various
government
authorities
exercising
and
enforcing
regulatory
functions
affecting
buildings/structures,
like
local
government
units,
may
be
further
required
before
a
building
permit
may
be
issued.
Since
building
permit
fees
are
not
charges
on
property,
they
are
not
impositions
from
which
petitioner
is
exempt.
2
As
to
petitioner's
argument
that
the
building
permit
fees
collected
by
respondents
are
in
reality
taxes
because
the
primary
purpose
is
to
raise
revenues
for
the
local
government
unit,
the
same
does
not
hold
water.
A
charge
of
a
fixed
sum
which
bears
no
relation
at
all
to
the
cost
of
inspection
and
regulation
may
be
held
to
be
a
tax
rather
than
an
exercise
of
the
police
power.
In
this
case,
the
Secretary
of
Public
Works
and
Highways
who
is
mandated
to
prescribe
and
fix
the
amount
of
fees
and
other
charges
that
the
Building
Official
shall
collect
in
connection
with
the
performance
of
regulatory
functions,
has
promulgated
and
issued
the
Implementing
Rules
and
Regulations
which
provide
for
the
bases
of
assessment
of
such
fees,
as
follows:
3. Floor area
4. Height
Petitioner
failed
to
demonstrate
that
the
above
bases
of
assessment
were
arbitrarily
determined
or
unrelated
to
the
activity
being
regulated.
Neither
has
petitioner
adduced
evidence
to
show
that
the
rates
of
building
permit
fees
imposed
and
collected
by
the
respondents
were
unreasonable
or
in
excess
of
the
cost
of
regulation
and
inspection.
In Chevron Philippines, Inc. v. Bases Conversion Development Authority, this Court explained:
In
distinguishing
tax
and
regulation
as
a
form
of
police
power,
the
determining
factor
is
the
purpose
of
the
implemented
measure.
If
the
purpose
is
primarily
to
raise
revenue,
then
it
will
be
deemed
a
tax
even
though
the
measure
results
in
some
form
of
regulation.
On
the
other
hand,
if
the
purpose
is
primarily
to
regulate,
then
it
is
deemed
a
regulation
and
an
exercise
of
the
police
power
of
the
state,
even
though
incidentally,
revenue
is
generated.
Thus,
in
Gerochi
v.
Department
of
Energy,
the
Court
stated:
"The
conservative
and
pivotal
distinction
between
these
two
(2)
powers
rests
in
the
purpose
for
which
the
charge
is
made.
If
generation
of
revenue
is
the
primary
purpose
and
regulation
is
merely
incidental,
the
imposition
is
a
tax;
but
if
regulation
is
the
primary
purpose,
the
fact
that
revenue
is
incidentally
raised
does
not
make
the
imposition
a
tax."
Concededly,
in
the
case
of
building
permit
fees
imposed
by
the
National
Government
under
the
National
Building
Code,
revenue
is
incidentally
generated
for
the
benefit
of
local
government
units.
Thus:
Every
Building
Official
shall
keep
a
permanent
record
and
accurate
account
of
all
fees
and
other
charges
fixed
and
authorized
by
the
Secretary
to
be
collected
and
received
under
this
Code.
3
Subject
to
existing
budgetary,
accounting
and
auditing
rules
and
regulations,
the
Building
Official
is
hereby
authorized
to
retain
not
more
than
twenty
percent
of
his
collection
for
the
operating
expenses
of
his
office.
The
remaining
eighty
percent
shall
be
deposited
with
the
provincial,
city
or
municipal
treasurer
and
shall
accrue
to
the
General
Fund
of
the
province,
city
or
municipality
concerned.
Petitioner's
reliance
on
Sec.
193
of
the
Local
Government
Code
of
1991
is
likewise
misplaced.
Said
provision
states:
SECTION
193.
Withdrawal
of
Tax
Exemption
Privileges.
—
Unless
otherwise
provided
in
this
Code,
tax
exemptions
or
incentives
granted
to,
or
presently
enjoyed
by
all
persons,
whether
natural
or
juridical,
including
government-‐owned
or
controlled
corporations,
except
local
water
districts,
cooperatives
duly
registered
under
R.A.
No.
6938,
non-‐stock
and
non-‐profit
hospitals
and
educational
institutions,
are
hereby
withdrawn
upon
the
effectivity
of
this
Code.
Considering
that
exemption
from
payment
of
regulatory
fees
was
not
among
those
"incentives"
granted
to
petitioner
under
R.A.
No.
6055,
there
is
no
such
incentive
that
is
retained
under
the
Local
Government
Code
of
1991.
Consequently,
no
reversible
error
was
committed
by
the
CA
in
ruling
that
petitioner
is
liable
to
pay
the
subject
building
permit
and
related
fees.
Now,
on
petitioner's
claim
that
it
is
exempted
from
the
payment
of
real
property
tax
assessed
against
its
real
property
presently
occupied
by
informal
settlers.
Section 28 (3), Article VI of the 1987 Constitution provides:
(3)
Charitable
institutions,
churches
and
parsonages
or
convents
appurtenant
thereto,
mosques,
non-‐profit
cemeteries,
and
all
lands,
buildings,
and
improvements,
actually,
directly
and
exclusively
used
for
religious,
charitable
or
educational
purposes
shall
be
exempt
from
taxation.
Section
234
(b)
of
the
Local
Government
Code
of
1991
implements
the
foregoing
constitutional
provision
by
declaring
that
—
SECTION
234.
Exemptions
from
Real
Property
Tax.
—
The
following
are
exempted
from
payment
of
the
real
property
tax:
(b)
Charitable
institutions,
churches,
parsonages
or
convents
appurtenant
thereto,
mosques,
non-‐
profit
or
religious
cemeteries
and
all
lands,
buildings,
and
improvements
actually,
directly,
and
exclusively
used
for
religious,
charitable
or
educational
purposes;
4
In
Lung
Center
of
the
Philippines
v.
Quezon
City,
31
this
Court
held
that
only
portions
of
the
hospital
actually,
directly
and
exclusively
used
for
charitable
purposes
are
exempt
from
real
property
taxes,
while
those
portions
leased
to
private
entities
and
individuals
are
not
exempt
from
such
taxes.
We
explained
the
condition
for
the
tax
exemption
privilege
of
charitable
and
educational
institutions,
as
follows:
Under
the
1973
and
1987
Constitutions
and
Rep.
Act
No.
7160
in
order
to
be
entitled
to
the
exemption,
the
petitioner
is
burdened
to
prove,
by
clear
and
unequivocal
proof,
that
(a)
it
is
a
charitable
institution;
and
(b)
its
real
properties
are
ACTUALLY,
DIRECTLY
and
EXCLUSIVELY
used
for
charitable
purposes.
"Exclusive"
is
defined
as
possessed
and
enjoyed
to
the
exclusion
of
others;
debarred
from
participation
or
enjoyment;
and
"exclusively"
is
defined,
"in
a
manner
to
exclude;
as
enjoying
a
privilege
exclusively."
If
real
property
is
used
for
one
or
more
commercial
purposes,
it
is
not
exclusively
used
for
the
exempted
purposes
but
is
subject
to
taxation.
The
words
"dominant
use"
or
"principal
use"
cannot
be
substituted
for
the
words
"used
exclusively"
without
doing
violence
to
the
Constitutions
and
the
law.
Solely
is
synonymous
with
exclusively.
What
is
meant
by
actual,
direct
and
exclusive
use
of
the
property
for
charitable
purposes
is
the
direct
and
immediate
and
actual
application
of
the
property
itself
to
the
purposes
for
which
the
charitable
institution
is
organized.
It
is
not
the
use
of
the
income
from
the
real
property
that
is
determinative
of
whether
the
property
is
used
for
tax-‐exempt
purposes.
Petitioner
failed
to
discharge
its
burden
to
prove
that
its
real
property
is
actually,
directly
and
exclusively
used
for
educational
purposes.
While
there
is
no
allegation
or
proof
that
petitioner
leases
the
land
to
its
present
occupants,
still
there
is
no
compliance
with
the
constitutional
and
statutory
requirement
that
said
real
property
is
actually,
directly
and
exclusively
used
for
educational
purposes.
The
respondents
correctly
assessed
the
land
for
real
property
taxes
for
the
taxable
period
during
which
the
land
is
not
being
devoted
solely
to
petitioner's
educational
activities.
Accordingly,
the
CA
did
not
err
in
ruling
that
petitioner
is
likewise
not
entitled
to
a
refund
of
the
real
property
tax
it
paid
under
protest.
The
sole
issue
is
whether
St.
Luke's
is
liable
for
deficiency
income
tax
in
1998
under
Section
27
(B)
of
the
NIRC,
which
imposes
a
preferential
tax
rate
of
10%
on
the
income
of
proprietary
non-‐profit
hospitals.
The
issue
raised
by
the
BIR
is
a
purely
legal
one.
It
involves
the
effect
of
the
introduction
of
Section
27
(B)
in
the
NIRC
of
1997
vis-‐à-‐vis
Section
30
(E)
and
(G)
on
the
income
tax
exemption
of
charitable
and
social
welfare
institutions.
The
10%
income
tax
rate
under
Section
27
(B)
specifically
pertains
to
5
proprietary
educational
institutions
and
proprietary
non-‐profit
hospitals.
The
BIR
argues
that
Congress
intended
to
remove
the
exemption
that
non-‐profit
hospitals
previously
enjoyed
under
Section
27
(E)
of
the
NIRC
of
1977,
which
is
now
substantially
reproduced
in
Section
30
(E)
of
the
NIRC
of
1997.
Section
27
(B)
of
the
present
NIRC
provides:
(B)
Proprietary
Educational
Institutions
and
Hospitals.
—
Proprietary
educational
institutions
and
hospitals
which
are
non-‐profit
shall
pay
a
tax
of
ten
percent
(10%)
on
their
taxable
income
except
those
covered
by
Subsection
(D)
hereof:
Provided,
That
if
the
gross
income
from
unrelated
trade,
business
or
other
activity
exceeds
fifty
percent
(50%)
of
the
total
gross
income
derived
by
such
educational
institutions
or
hospitals
from
all
sources,
the
tax
prescribed
in
Subsection
(A)
hereof
shall
be
imposed
on
the
entire
taxable
income.
For
purposes
of
this
Subsection,
the
term
'unrelated
trade,
business
or
other
activity'
means
any
trade,
business
or
other
activity,
the
conduct
of
which
is
not
substantially
related
to
the
exercise
or
performance
by
such
educational
institution
or
hospital
of
its
primary
purpose
or
function.
A
'proprietary
educational
institution'
is
any
private
school
maintained
and
administered
by
private
individuals
or
groups
with
an
issued
permit
to
operate
from
the
Department
of
Education,
Culture
and
Sports
(DECS),
or
the
Commission
on
Higher
Education
(CHED),
or
the
Technical
Education
and
Skills
Development
Authority
(TESDA),
as
the
case
may
be,
in
accordance
with
existing
laws
and
regulations.
St.
Luke's
claims
tax
exemption
under
Section
30
(E)
and
(G)
of
the
NIRC.
It
contends
that
it
is
a
charitable
institution
and
an
organization
promoting
social
welfare.
The
arguments
of
St.
Luke's
focus
on
the
wording
of
Section
30
(E)
exempting
from
income
tax
non-‐stock,
non-‐profit
charitable
institutions.
St.
Luke's
asserts
that
the
legislative
intent
of
introducing
Section
27
(B)
was
only
to
remove
the
exemption
for
"proprietary
non-‐profit"
hospitals.
The
relevant
provisions
of
Section
30
state:
SEC.
30.
Exemptions
from
Tax
on
Corporations.
—
The
following
organizations
shall
not
be
taxed
under
this
Title
in
respect
to
income
received
by
them
as
such:
(E)
Nonstock
corporation
or
association
organized
and
operated
exclusively
for
religious,
charitable,
scientific,
athletic,
or
cultural
purposes,
or
for
the
rehabilitation
of
veterans,
no
part
of
its
net
income
or
asset
shall
belong
to
or
inure
to
the
benefit
of
any
member,
organizer,
officer
or
any
specific
person;
cCTIaS
(G)
Civic
league
or
organization
not
organized
for
profit
but
operated
exclusively
for
the
promotion
of
social
welfare;
6
Notwithstanding
the
provisions
in
the
preceding
paragraphs,
the
income
of
whatever
kind
and
character
of
the
foregoing
organizations
from
any
of
their
properties,
real
or
personal,
or
from
any
of
their
activities
conducted
for
profit
regardless
of
the
disposition
made
of
such
income,
shall
be
subject
to
tax
imposed
under
this
Code.
The
Court
partly
grants
the
petition
of
the
BIR
but
on
a
different
ground.
We
hold
that
Section
27
(B)
of
the
NIRC
does
not
remove
the
income
tax
exemption
of
proprietary
non-‐profit
hospitals
under
Section
30
(E)
and
(G).
Section
27
(B)
on
one
hand,
and
Section
30
(E)
and
(G)
on
the
other
hand,
can
be
construed
together
without
the
removal
of
such
tax
exemption.
The
effect
of
the
introduction
of
Section
27
(B)
is
to
subject
the
taxable
income
of
two
specific
institutions,
namely,
proprietary
non-‐
profit
educational
institutions
and
proprietary
non-‐profit
hospitals,
among
the
institutions
covered
by
Section
30,
to
the
10%
preferential
rate
under
Section
27
(B)
instead
of
the
ordinary
30%
corporate
rate
under
the
last
paragraph
of
Section
30
in
relation
to
Section
27
(A)
(1).
Section
27
(B)
of
the
NIRC
imposes
a
10%
preferential
tax
rate
on
the
income
of
(1)
proprietary
non-‐
profit
educational
institutions
and
(2)
proprietary
non-‐profit
hospitals.
The
only
qualifications
for
hospitals
are
that
they
must
be
proprietary
and
non-‐profit.
"Proprietary"
means
private,
following
the
definition
of
a
"proprietary
educational
institution"
as
"any
private
school
maintained
and
administered
by
private
individuals
or
groups"
with
a
government
permit.
"Non-‐profit"
means
no
net
income
or
asset
accrues
to
or
benefits
any
member
or
specific
person,
with
all
the
net
income
or
asset
devoted
to
the
institution's
purposes
and
all
its
activities
conducted
not
for
profit.
"Non-‐profit"
does
not
necessarily
mean
"charitable."
In
Collector
of
Internal
Revenue
v.
Club
Filipino,
Inc.
de
Cebu,
this
Court
considered
as
non-‐profit
a
sports
club
organized
for
recreation
and
entertainment
of
its
stockholders
and
members.
The
club
was
primarily
funded
by
membership
fees
and
dues.
If
it
had
profits,
they
were
used
for
overhead
expenses
and
improving
its
golf
course.
38
The
club
was
non-‐profit
because
of
its
purpose
and
there
was
no
evidence
that
it
was
engaged
in
a
profit-‐making
enterprise.
The
sports
club
in
Club
Filipino,
Inc.
de
Cebu
may
be
non-‐profit,
but
it
was
not
charitable.
The
Court
defined
"charity"
in
Lung
Center
of
the
Philippines
v.
Quezon
City
as
"a
gift,
to
be
applied
consistently
with
existing
laws,
for
the
benefit
of
an
indefinite
number
of
persons,
either
by
bringing
their
minds
and
hearts
under
the
influence
of
education
or
religion,
by
assisting
them
to
establish
themselves
in
life
or
[by]
otherwise
lessening
the
burden
of
government."
A
non-‐profit
club
for
the
benefit
of
its
members
fails
this
test.
An
organization
may
be
considered
as
non-‐profit
if
it
does
not
distribute
any
part
of
its
income
to
stockholders
or
members.
However,
despite
its
being
a
tax
exempt
institution,
any
income
such
institution
earns
from
activities
conducted
for
profit
is
taxable,
as
expressly
provided
in
the
last
paragraph
of
Section
30.
To
be
a
charitable
institution,
however,
an
organization
must
meet
the
substantive
test
of
charity
in
Lung
Center.
The
issue
in
Lung
Center
concerns
exemption
from
real
property
tax
and
not
income
tax.
However,
it
provides
for
the
test
of
charity
in
our
jurisdiction.
Charity
is
essentially
a
gift
to
an
indefinite
number
of
persons
which
lessens
the
burden
of
government.
In
other
words,
charitable
7
institutions
provide
for
free
goods
and
services
to
the
public
which
would
otherwise
fall
on
the
shoulders
of
government.
Thus,
as
a
matter
of
efficiency,
the
government
forgoes
taxes
which
should
have
been
spent
to
address
public
needs,
because
certain
private
entities
already
assume
a
part
of
the
burden.
This
is
the
rationale
for
the
tax
exemption
of
charitable
institutions.
The
loss
of
taxes
by
the
government
is
compensated
by
its
relief
from
doing
public
works
which
would
have
been
funded
by
appropriations
from
the
Treasury.
Charitable
institutions,
however,
are
not
ipso
facto
entitled
to
a
tax
exemption.
The
requirements
for
a
tax
exemption
are
specified
by
the
law
granting
it.
The
power
of
Congress
to
tax
implies
the
power
to
exempt
from
tax.
Congress
can
create
tax
exemptions,
subject
to
the
constitutional
provision
that
"[n]o
law
granting
any
tax
exemption
shall
be
passed
without
the
concurrence
of
a
majority
of
all
the
Members
of
Congress."
The
requirements
for
a
tax
exemption
are
strictly
construed
against
the
taxpayer
because
an
exemption
restricts
the
collection
of
taxes
necessary
for
the
existence
of
the
government.
The
Court
in
Lung
Center
declared
that
the
Lung
Center
of
the
Philippines
is
a
charitable
institution
for
the
purpose
of
exemption
from
real
property
taxes.
This
ruling
uses
the
same
premise
as
Hospital
de
San
Juan
and
Jesus
Sacred
Heart
College
which
says
that
receiving
income
from
paying
patients
does
not
destroy
the
charitable
nature
of
a
hospital.
As
a
general
principle,
a
charitable
institution
does
not
lose
its
character
as
such
and
its
exemption
from
taxes
simply
because
it
derives
income
from
paying
patients,
whether
out-‐patient,
or
confined
in
the
hospital,
or
receives
subsidies
from
the
government,
so
long
as
the
money
received
is
devoted
or
used
altogether
to
the
charitable
object
which
it
is
intended
to
achieve;
and
no
money
inures
to
the
private
benefit
of
the
persons
managing
or
operating
the
institution.
For
real
property
taxes,
the
incidental
generation
of
income
is
permissible
because
the
test
of
exemption
is
the
use
of
the
property.
The
Constitution
provides
that
"[c]haritable
institutions,
churches
and
parsonages
or
convents
appurtenant
thereto,
mosques,
non-‐profit
cemeteries,
and
all
lands,
buildings,
and
improvements,
actually,
directly,
and
exclusively
used
for
religious,
charitable,
or
educational
purposes
shall
be
exempt
from
taxation."
The
test
of
exemption
is
not
strictly
a
requirement
on
the
intrinsic
nature
or
character
of
the
institution.
The
test
requires
that
the
institution
use
the
property
in
a
certain
way,
i.e.,
for
a
charitable
purpose.
Thus,
the
Court
held
that
the
Lung
Center
of
the
Philippines
did
not
lose
its
charitable
character
when
it
used
a
portion
of
its
lot
for
commercial
purposes.
The
effect
of
failing
to
meet
the
use
requirement
is
simply
to
remove
from
the
tax
exemption
that
portion
of
the
property
not
devoted
to
charity.
The
Constitution
exempts
charitable
institutions
only
from
real
property
taxes.
In
the
NIRC,
Congress
decided
to
extend
the
exemption
to
income
taxes.
However,
the
way
Congress
crafted
Section
30
(E)
of
the
NIRC
is
materially
different
from
Section
28
(3),
Article
VI
of
the
Constitution.
Section
30
(E)
of
the
NIRC
defines
the
corporation
or
association
that
is
exempt
from
income
tax.
On
the
other
hand,
Section
28
(3),
Article
VI
of
the
Constitution
does
not
define
a
charitable
institution,
but
requires
that
the
institution
"actually,
directly
and
exclusively"
use
the
property
for
a
charitable
purpose.
8
Section
30
(E)
of
the
NIRC
provides
that
a
charitable
institution
must
be:
(4)
No
part
of
its
net
income
or
asset
shall
belong
to
or
inure
to
the
benefit
of
any
member,
organizer,
officer
or
any
specific
person.
Thus,
both
the
organization
and
operations
of
the
charitable
institution
must
be
devoted
"exclusively"
for
charitable
purposes.
The
organization
of
the
institution
refers
to
its
corporate
form,
as
shown
by
its
articles
of
incorporation,
by-‐laws
and
other
constitutive
documents.
Section
30
(E)
of
the
NIRC
specifically
requires
that
the
corporation
or
association
be
non-‐stock,
which
is
defined
by
the
Corporation
Code
as
"one
where
no
part
of
its
income
is
distributable
as
dividends
to
its
members,
trustees,
or
officers"
and
that
any
profit
"obtain[ed]
as
an
incident
to
its
operations
shall,
whenever
necessary
or
proper,
be
used
for
the
furtherance
of
the
purpose
or
purposes
for
which
the
corporation
was
organized."
However,
under
Lung
Center,
any
profit
by
a
charitable
institution
must
not
only
be
plowed
back
"whenever
necessary
or
proper,"
but
must
be
"devoted
or
used
altogether
to
the
charitable
object
which
it
is
intended
to
achieve."
The
operations
of
the
charitable
institution
generally
refer
to
its
regular
activities.
Section
30
(E)
of
the
NIRC
requires
that
these
operations
be
exclusive
to
charity.
There
is
also
a
specific
requirement
that
"no
part
of
[the]
net
income
or
asset
shall
belong
to
or
inure
to
the
benefit
of
any
member,
organizer,
officer
or
any
specific
person."
The
use
of
lands,
buildings
and
improvements
of
the
institution
is
but
a
part
of
its
operations.
There
is
no
dispute
that
St.
Luke's
is
organized
as
a
non-‐stock
and
non-‐profit
charitable
institution.
However,
this
does
not
automatically
exempt
St.
Luke's
from
paying
taxes.
This
only
refers
to
the
organization
of
St.
Luke's.
Even
if
St.
Luke's
meets
the
test
of
charity,
a
charitable
institution
is
not
ipso
facto
tax
exempt.
To
be
exempt
from
real
property
taxes,
Section
28
(3),
Article
VI
of
the
Constitution
requires
that
a
charitable
institution
use
the
property
"actually,
directly
and
exclusively"
for
charitable
purposes.
To
be
exempt
from
income
taxes,
Section
30
(E)
of
the
NIRC
requires
that
a
charitable
institution
must
be
"organized
and
operated
exclusively"
for
charitable
purposes.
Likewise,
to
be
exempt
from
income
taxes,
Section
30
(G)
of
the
NIRC
requires
that
the
institution
be
"operated
exclusively"
for
social
welfare.
However,
the
last
paragraph
of
Section
30
of
the
NIRC
qualifies
the
words
"organized
and
operated
exclusively"
by
providing
that:
Notwithstanding
the
provisions
in
the
preceding
paragraphs,
the
income
of
whatever
kind
and
character
of
the
foregoing
organizations
from
any
of
their
properties,
real
or
personal,
or
from
any
of
their
activities
conducted
for
profit
regardless
of
the
disposition
made
of
such
income,
shall
be
subject
to
tax
imposed
under
this
Code.
9
In
short,
the
last
paragraph
of
Section
30
provides
that
if
a
tax
exempt
charitable
institution
conducts
"any"
activity
for
profit,
such
activity
is
not
tax
exempt
even
as
its
not-‐for-‐profit
activities
remain
tax
exempt.
This
paragraph
qualifies
the
requirements
in
Section
30
(E)
that
the
"[n]on-‐stock
corporation
or
association
[must
be]
organized
and
operated
exclusively
for
.
.
.
charitable
.
.
.
purposes
.
.
.
."
It
likewise
qualifies
the
requirement
in
Section
30
(G)
that
the
civic
organization
must
be
"operated
exclusively"
for
the
promotion
of
social
welfare.
Thus,
even
if
the
charitable
institution
must
be
"organized
and
operated
exclusively"
for
charitable
purposes,
it
is
nevertheless
allowed
to
engage
in
"activities
conducted
for
profit"
without
losing
its
tax
exempt
status
for
its
not-‐for-‐profit
activities.
The
only
consequence
is
that
the
"income
of
whatever
kind
and
character"
of
a
charitable
institution
"from
any
of
its
activities
conducted
for
profit,
regardless
of
the
disposition
made
of
such
income,
shall
be
subject
to
tax."
Prior
to
the
introduction
of
Section
27
(B),
the
tax
rate
on
such
income
from
for-‐profit
activities
was
the
ordinary
corporate
rate
under
Section
27
(A).
With
the
introduction
of
Section
27
(B),
the
tax
rate
is
now
10%.
In
1998,
St.
Luke's
had
total
revenues
of
P1,730,367,965
from
services
to
paying
patients.
It
cannot
be
disputed
that
a
hospital
which
receives
approximately
P1.73
billion
from
paying
patients
is
not
an
institution
"operated
exclusively"
for
charitable
purposes.
Clearly,
revenues
from
paying
patients
are
income
received
from
"activities
conducted
for
profit."
52
Indeed,
St.
Luke's
admits
that
it
derived
profits
from
its
paying
patients.
St.
Luke's
declared
P1,730,367,965
as
"Revenues
from
Services
to
Patients"
in
contrast
to
its
"Free
Services"
expenditure
of
P218,187,498.
In
its
Comment
in
G.R.
No.
195909,
St.
Luke's
showed
the
following
"calculation"
to
support
its
claim
that
65.20%
of
its
"income
after
expenses
was
allocated
to
free
or
charitable
services"
in
1998.
"[e]xclusive"
is
defined
as
possessed
and
enjoyed
to
the
exclusion
of
others;
debarred
from
participation
or
enjoyment;
and
"exclusively"
is
defined,
"in
a
manner
to
exclude;
as
enjoying
a
privilege
exclusively."
.
.
.
The
words
"dominant
use"
or
"principal
use"
cannot
be
substituted
for
the
words
"used
exclusively"
without
doing
violence
to
the
Constitution
and
the
law.
Solely
is
synonymous
with
exclusively.
The
Court
cannot
expand
the
meaning
of
the
words
"operated
exclusively"
without
violating
the
NIRC.
Services
to
paying
patients
are
activities
conducted
for
profit.
They
cannot
be
considered
any
other
way.
There
is
a
"purpose
to
make
profit
over
and
above
the
cost"
of
services.
The
P1.73
billion
total
revenues
from
paying
patients
is
not
even
incidental
to
St.
Luke's
charity
expenditure
of
P218,187,498
for
non-‐paying
patients.
St.
Luke's
claims
that
its
charity
expenditure
of
P218,187,498
is
65.20%
of
its
operating
income
in
1998.
However,
if
a
part
of
the
remaining
34.80%
of
the
operating
income
is
reinvested
in
property,
equipment
or
facilities
used
for
services
to
paying
and
non-‐paying
patients,
then
it
cannot
be
said
that
the
income
is
"devoted
or
used
altogether
to
the
charitable
object
which
it
is
intended
to
achieve."
56
The
income
is
plowed
back
to
the
corporation
not
entirely
for
charitable
purposes,
but
for
profit
as
well.
10
In
any
case,
the
last
paragraph
of
Section
30
of
the
NIRC
expressly
qualifies
that
income
from
activities
for
profit
is
taxable
"regardless
of
the
disposition
made
of
such
income."
Jesus
Sacred
Heart
College
declared
that
there
is
no
official
legislative
record
explaining
the
phrase
"any
activity
conducted
for
profit."
However,
it
quoted
a
deposition
of
Senator
Mariano
Jesus
Cuenco,
who
was
a
member
of
the
Committee
of
Conference
for
the
Senate,
which
introduced
the
phrase
"or
from
any
activity
conducted
for
profit."
The
question
was
whether
having
a
hospital
is
essential
to
an
educational
institution
like
the
College
of
Medicine
of
the
University
of
Santo
Tomas.
Senator
Cuenco
answered
that
if
the
hospital
has
paid
rooms
generally
occupied
by
people
of
good
economic
standing,
then
it
should
be
subject
to
income
tax.
He
said
that
this
was
one
of
the
reasons
Congress
inserted
the
phrase
"or
any
activity
conducted
for
profit."
The
question
in
Jesus
Sacred
Heart
College
involves
an
educational
institution.
However,
it
is
applicable
to
charitable
institutions
because
Senator
Cuenco's
response
shows
an
intent
to
focus
on
the
activities
of
charitable
institutions.
Activities
for
profit
should
not
escape
the
reach
of
taxation.
Being
a
non-‐stock
and
non-‐profit
corporation
does
not,
by
this
reason
alone,
completely
exempt
an
institution
from
tax.
An
institution
cannot
use
its
corporate
form
to
prevent
its
profitable
activities
from
being
taxed.
The
Court
finds
that
St.
Luke's
is
a
corporation
that
is
not
"operated
exclusively"
for
charitable
or
social
welfare
purposes
insofar
as
its
revenues
from
paying
patients
are
concerned.
This
ruling
is
based
not
only
on
a
strict
interpretation
of
a
provision
granting
tax
exemption,
but
also
on
the
clear
and
plain
text
of
Section
30
(E)
and
(G).
Section
30
(E)
and
(G)
of
the
NIRC
requires
that
an
institution
be
"operated
exclusively"
for
charitable
or
social
welfare
purposes
to
be
completely
exempt
from
income
tax.
An
institution
under
Section
30
(E)
or
(G)
does
not
lose
its
tax
exemption
if
it
earns
income
from
its
for-‐profit
activities.
Such
income
from
for-‐profit
activities,
under
the
last
paragraph
of
Section
30,
is
merely
subject
to
income
tax,
previously
at
the
ordinary
corporate
rate
but
now
at
the
preferential
10%
rate
pursuant
to
Section
27
(B).
A
tax
exemption
is
effectively
a
social
subsidy
granted
by
the
State
because
an
exempt
institution
is
spared
from
sharing
in
the
expenses
of
government
and
yet
benefits
from
them.
Tax
exemptions
for
charitable
institutions
should
therefore
be
limited
to
institutions
beneficial
to
the
public
and
those
which
improve
social
welfare.
A
profit-‐making
entity
should
not
be
allowed
to
exploit
this
subsidy
to
the
detriment
of
the
government
and
other
taxpayers.
St.
Luke's
fails
to
meet
the
requirements
under
Section
30
(E)
and
(G)
of
the
NIRC
to
be
completely
tax
exempt
from
all
its
income.
However,
it
remains
a
proprietary
non-‐profit
hospital
under
Section
27
(B)
of
the
NIRC
as
long
as
it
does
not
distribute
any
of
its
profits
to
its
members
and
such
profits
are
reinvested
pursuant
to
its
corporate
purposes.
St.
Luke's,
as
a
proprietary
non-‐profit
hospital,
is
entitled
to
the
preferential
tax
rate
of
10%
on
its
net
income
from
its
for-‐profit
activities.
St.
Luke's
is
therefore
liable
for
deficiency
income
tax
in
1998
under
Section
27
(B)
of
the
NIRC.
However,
St.
Luke's
has
good
reasons
to
rely
on
the
letter
dated
6
June
1990
by
the
BIR,
which
opined
that
St.
Luke's
is
"a
corporation
for
purely
charitable
and
social
welfare
purposes"
and
thus
exempt
11
from
income
tax.
In
Michael
J.
Lhuillier,
Inc.
v.
Commissioner
of
Internal
Revenue,
the
Court
said
that
"good
faith
and
honest
belief
that
one
is
not
subject
to
tax
on
the
basis
of
previous
interpretation
of
government
agencies
tasked
to
implement
the
tax
law,
are
sufficient
justification
to
delete
the
imposition
of
surcharges
and
interest."
…the
person
entitled
to
claim
a
tax
refund
is
the
statutory
taxpayer
or
the
person
liable
for
or
subject
to
tax.
In
the
present
case,
it
is
not
disputed
that
the
supplier
of
Diageo
imported
the
subject
raw
alcohol,
hence,
it
was
the
one
directly
liable
and
obligated
to
file
a
return
and
pay
the
excise
taxes
under
the
Tax
Code
before
the
goods
or
products
are
removed
from
the
custom
house.
It
is,
therefore,
the
statutory
taxpayer
as
contemplated
by
law
and
remains
to
be
so,
even
if
it
shifts
the
burden
of
tax
to
Diageo.
Consequently,
the
right
to
claim
a
refund,
if
legally
allowed,
belongs
to
it
and
cannot
be
transferred
to
another,
in
this
case
Diageo,
without
any
clear
provision
of
law
allowing
the
same.
Unlike
the
law
on
Value
Added
Tax
which
allows
the
subsequent
purchaser
under
the
tax
credit
method
to
refund
or
credit
input
taxes
passed
on
to
it
by
a
supplier,
no
provision
for
excise
taxes
exists
granting
non-‐statutory
taxpayer
like
Diageo
to
claim
a
refund
or
credit.
It
should
also
be
stressed
that
when
the
excise
taxes
were
included
in
the
purchase
price
of
the
goods
sold
to
Diageo,
the
same
was
no
longer
in
the
nature
of
a
tax
but
already
formed
part
of
the
cost
of
the
goods.
Finally,
statutes
granting
tax
exemptions
are
construed
stricissimi
juris
against
the
taxpayer
and
liberally
in
favor
of
the
taxing
authority.
A
claim
of
tax
exemption
must
be
clearly
shown
and
based
on
language
in
law
too
plain
to
be
mistaken.
Unfortunately,
Diageo
failed
to
meet
the
burden
of
proof
that
it
is
covered
by
the
exemption
granted
under
Section
130
(D)
of
the
Tax
Code.
In
sum,
Diageo,
not
being
the
party
statutorily
liable
to
pay
excise
taxes
and
having
failed
to
prove
that
it
is
covered
by
the
exemption
granted
under
Section
130
(D)
of
the
Tax
Code,
is
not
the
proper
party
to
claim
a
refund
or
credit
of
the
excise
taxes
paid
on
the
ingredients
of
its
exported
locally
produced
liquor.
4.) CAGAYAN
ELECTRIC
POWER
AND
LIGHT
CO.,
INC.
VS.
CITY
OF
CAGAYAN
DE
ORO
CEPALCO
is
mistaken
when
it
states
that
a
city
can
impose
a
tax
up
to
only
one-‐half
of
what
the
province
or
city
may
impose.
A
more
circumspect
reading
of
the
Local
Government
Code
could
have
prevented
this
error.
Section
151
of
the
Local
Government
Code
states
that,
subject
to
certain
exceptions,
a
city
may
exceed
by
"not
more
than
50%"
the
tax
rates
allowed
to
provinces
and
municipalities.
A
province
may
impose
a
franchise
tax
at
a
rate
"not
exceeding
50%
of
1%
of
the
gross
annual
receipts."
Following
Section
151,
a
city
may
impose
a
franchise
tax
of
up
to
0.0075
(or
0.75%)
of
a
business'
gross
annual
receipts
for
the
preceding
calendar
year
based
on
the
incoming
receipt,
or
realized,
within
its
12
territorial
jurisdiction.
A
municipality
may
impose
a
business
tax
at
a
rate
not
exceeding
"two
percent
of
gross
sales
or
receipts."
Following
Section
151,
a
city
may
impose
a
business
tax
of
up
to
0.03
(or
3%)
of
a
business'
gross
sales
or
receipts
of
the
preceding
calendar
year.
CEPALCO
also
erred
when
it
equates
Section
137's
"gross
annual
receipts"
with
Ordinance
No.
9503-‐
2005's
"annual
rental
income."
Section
2
of
Ordinance
No.
9503-‐2005
imposes
"a
tax
on
the
lease
or
rental
of
electric
and/or
telecommunication
posts,
poles
or
towers
by
pole
owners
to
other
pole
users
at
the
rate
of
ten
(10)
percent
of
the
annual
rental
income
derived
therefrom,"
and
not
on
CEPALCO's
gross
annual
receipts.
Thus,
although
the
tax
rate
of
10%
is
definitely
higher
than
that
imposable
by
cities
as
franchise
or
business
tax,
the
tax
base
of
annual
rental
income
of
"electric
and/or
telecommunication
posts,
poles
or
towers
by
pole
owners
to
other
pole
users"
is
definitely
smaller
than
that
used
by
cities
in
the
computation
of
franchise
or
business
tax.
In
effect,
Ordinance
No.
9503-‐2005
wants
a
slice
of
a
smaller
pie.
However,
we
disagree
with
the
City
of
Cagayan
de
Oro's
submission
that
Ordinance
No.
9503-‐2005
is
not
subject
to
the
limits
imposed
by
Sections
143
and
151
of
the
Local
Government
Code.
On
the
contrary,
Ordinance
No.
9503-‐2005
is
subject
to
the
limitation
set
by
Section
143
(h).
Section
143
recognizes
separate
lines
of
business
and
imposes
different
tax
rates
for
different
lines
of
business.
Let
us
suppose
that
one
is
a
brewer
of
liquor
and,
at
the
same
time,
a
distributor
of
articles
of
commerce.
The
brewery
business
is
subject
to
the
rates
established
in
Section
143
(a)
while
the
distribution
business
is
subject
to
the
rates
established
in
Section
143
(b).
The
City
of
Cagayan
de
Oro's
imposition
of
a
tax
on
the
lease
of
poles
falls
under
Section
143
(h),
as
the
lease
of
poles
is
CEPALCO's
separate
line
of
business
which
is
not
covered
by
paragraphs
(a)
to
(g)
of
Section
143.
The
treatment
of
the
lease
of
poles
as
a
separate
line
of
business
is
evident
in
Section
4
(a)
of
Ordinance
No.
9503-‐2005.
The
City
of
Cagayan
de
Oro
required
CEPALCO
to
apply
for
a
separate
business
permit.
More
importantly,
because
"any
person,
who
in
the
course
of
trade
or
business
.
.
.
leases
goods
or
properties
.
.
.
shall
be
subject
to
the
value-‐added
tax,"
32
the
imposable
tax
rate
should
not
exceed
two
percent
of
gross
receipts
of
the
lease
of
poles
of
the
preceding
calendar
year.
Section
143
(h)
states
that
"on
any
business
subject
to
.
.
.
value-‐added
.
.
.
tax
under
the
National
Internal
Revenue
Code,
as
amended,
the
rate
of
tax
shall
not
exceed
two
percent
(2%)
of
gross
sales
or
receipts
of
the
preceding
calendar
year"
from
the
lease
of
goods
or
properties.
Hence,
the
10%
tax
rate
imposed
by
Ordinance
No.
9503-‐2005
clearly
violates
Section
143
(h)
of
the
Local
Government
Code.
Finally,
in
view
of
the
lack
of
a
separability
clause,
we
declare
void
the
entirety
of
Ordinance
No.
9503-‐
2005.
Any
payment
made
by
reason
of
the
tax
imposed
by
Ordinance
No.
9503-‐2005
should,
therefore,
be
refunded
to
CEPALCO.
Our
ruling,
however,
is
made
without
prejudice
to
the
enactment
by
the
City
of
Cagayan
de
Oro
of
a
tax
ordinance
that
complies
with
the
limits
set
by
the
Local
Government
Code.
It
is
hornbook
doctrine
that
tax
exemptions
are
strictly
construed
against
the
claimant.
For
this
reason,
tax
exemptions
must
be
based
on
clear
legal
provisions.
The
separate
opinion
in
PLDT
v.
City
of
Davao
25
is
applicable
to
the
present
case,
thus:
13
“Tax
exemptions
must
be
clear
and
unequivocal.
A
taxpayer
claiming
a
tax
exemption
must
point
to
a
specific
provision
of
law
conferring
on
the
taxpayer,
in
clear
and
plain
terms,
exemption
from
a
common
burden.
Any
doubt
whether
a
tax
exemption
exists
is
resolved
against
the
taxpayer.
Tax
exemptions
cannot
arise
by
mere
implication,
much
less
by
an
implied
re-‐enactment
of
a
repealed
tax
exemption
clause.”
Clearly,
the
law
requires
that
the
dissatisfied
taxpayer
who
questions
the
validity
or
legality
of
a
tax
ordinance
must
file
his
appeal
to
the
Secretary
of
Justice,
within
30
days
from
effectivity
thereof.
In
case
the
Secretary
decides
the
appeal,
a
period
also
of
30
days
is
allowed
for
an
aggrieved
party
to
go
to
court.
But
if
the
Secretary
does
not
act
thereon,
after
the
lapse
of
60
days,
a
party
could
already
proceed
to
seek
relief
in
court.
These
three
separate
periods
are
clearly
given
for
compliance
as
a
prerequisite
before
seeking
redress
in
a
competent
court.
Such
statutory
periods
are
set
to
prevent
delays
as
well
as
enhance
the
orderly
and
speedy
discharge
of
judicial
functions.
For
this
reason
the
courts
construe
these
provisions
of
statutes
as
mandatory.
A
municipal
tax
ordinance
empowers
a
local
government
unit
to
impose
taxes.
The
power
to
tax
is
the
most
effective
instrument
to
raise
needed
revenues
to
finance
and
support
the
myriad
activities
of
local
government
units
for
the
delivery
of
basic
services
essential
to
the
promotion
of
the
general
welfare
and
enhancement
of
peace,
progress,
and
prosperity
of
the
people.
Consequently,
any
delay
in
implementing
tax
measures
would
be
to
the
detriment
of
the
public.
It
is
for
this
reason
that
protests
over
tax
ordinances
are
required
to
be
done
within
certain
time
frames.
In
the
instant
case,
it
is
our
view
that
the
failure
of
petitioners
to
appeal
to
the
Secretary
of
Justice
within
30
days
as
required
by
Sec.
187
of
R.A.
7160
is
fatal
to
their
cause.
Courts
cannot
limit
the
application
or
coverage
of
a
law,
nor
can
it
impose
conditions
not
provided
therein.
To
do
so
constitutes
judicial
legislation.
Prior payment of taxes is not required for a taxpayer to avail of the 8%transitional input tax credit.
Transitional
input
tax
credits.
—
A
person
who
becomes
liable
to
value-‐added
tax
or
any
person
who
elects
to
be
a
VAT-‐registered
person
shall,
subject
to
the
filing
of
an
inventory
as
prescribed
by
regulations,
be
allowed
input
tax
on
his
beginning
inventory
of
goods,
materials
and
supplies
equivalent
to
8%
of
the
value
of
such
inventory
or
the
actual
value-‐added
tax
paid
on
such
goods,
materials
and
supplies,
whichever
is
higher,
which
shall
be
creditable
against
the
output
tax.
Moreover,
prior
payment
of
taxes
is
not
required
to
avail
of
the
transitional
input
tax
credit
because
it
is
not
a
tax
refund
per
se
but
a
tax
credit.
Tax
credit
is
not
synonymous
to
tax
refund.
Tax
refund
is
defined
as
the
money
that
a
taxpayer
overpaid
and
is
thus
returned
by
the
taxing
authority.
Tax
credit,
on
the
other
hand,
is
an
amount
subtracted
directly
from
one's
total
tax
liability.
It
is
any
amount
given
to
a
14
taxpayer
as
a
subsidy,
a
refund,
or
an
incentive
to
encourage
investment.
Thus,
unlike
a
tax
refund,
prior
payment
of
taxes
is
not
a
prerequisite
to
avail
of
a
tax
credit.
In
this
case,
when
petitioner
realized
that
its
transitional
input
tax
credit
was
not
applied
in
computing
its
output
VAT
for
the
1st
quarter
of
1997,
it
filed
a
claim
for
refund
to
recover
the
output
VAT
it
erroneously
or
excessively
paid
for
the
1st
quarter
of
1997.
In
filing
a
claim
for
tax
refund,
petitioner
is
simply
applying
its
transitional
input
tax
credit
against
the
output
VAT
it
has
paid.
Hence,
it
is
merely
availing
of
the
tax
credit
incentive
given
by
law
to
first
time
VAT
taxpayers.
As
we
have
said
in
the
earlier
case
of
Fort
Bonifacio,
the
provision
on
transitional
input
tax
credit
was
enacted
to
benefit
first
time
VAT
taxpayers
by
mitigating
the
impact
of
VAT
on
the
taxpayer.
Thus,
contrary
to
the
view
of
Justice
Carpio,
the
granting
of
a
transitional
input
tax
credit
in
favor
of
petitioner,
which
would
be
paid
out
of
the
general
fund
of
the
government,
would
be
an
appropriation
authorized
by
law,
specifically
Section
105
of
the
old
NIRC.
As
regards
Section
4.105-‐1
47
of
RR
7-‐95
which
limited
the
8%
transitional
input
tax
credit
to
the
value
of
the
improvements
on
the
land,
the
same
contravenes
the
provision
of
Section
105
of
the
old
NIRC,
in
relation
to
Section
100
of
the
same
Code,
as
amended
by
RA
7716,
which
defines
"goods
or
properties,"
to
wit:
SEC.
100.
Value-‐added
tax
on
sale
of
goods
or
properties.
—
(a)
Rate
and
base
of
tax.
—
There
shall
be
levied,
assessed
and
collected
on
every
sale,
barter
or
exchange
of
goods
or
properties,
a
value-‐
added
tax
equivalent
to
10%
of
the
gross
selling
price
or
gross
value
in
money
of
the
goods
or
properties
sold,
bartered
or
exchanged,
such
tax
to
be
paid
by
the
seller
or
transferor.
(1)
The
term
"goods
or
properties"
shall
mean
all
tangible
and
intangible
objects
which
are
capable
of
pecuniary
estimation
and
shall
include:
(A)
Real
properties
held
primarily
for
sale
to
customers
or
held
for
lease
in
the
ordinary
course
of
trade
or
business;
.
.
.
In
fact,
in
our
Resolution
dated
October
2,
2009,
in
the
related
case
of
Fort
Bonifacio,
we
ruled
that
Section
4.105-‐1
of
RR
7-‐95,
insofar
as
it
limits
the
transitional
input
tax
credit
to
the
value
of
the
improvement
of
the
real
properties,
is
a
nullity.
Pertinent
portions
of
the
Resolution
read:
As
mandated
by
Article
7
of
the
Civil
Code,
an
administrative
rule
or
regulation
cannot
contravene
the
law
on
which
it
is
based.
RR
7-‐95
is
inconsistent
with
Section
105
insofar
as
the
definition
of
the
term
"goods"
is
concerned.
This
is
a
legislative
act
beyond
the
authority
of
the
CIR
and
the
Secretary
of
Finance.
The
rules
and
regulations
that
administrative
agencies
promulgate,
which
are
the
product
of
a
delegated
legislative
power
to
create
new
and
additional
legal
provisions
that
have
the
effect
of
law,
should
be
within
the
scope
of
the
statutory
authority
granted
by
the
legislature
to
the
objects
and
purposes
of
the
law,
and
should
not
be
in
contradiction
to,
but
in
conformity
with,
the
standards
prescribed
by
law.
15
To
be
valid,
an
administrative
rule
or
regulation
must
conform,
not
contradict,
the
provisions
of
the
enabling
law.
An
implementing
rule
or
regulation
cannot
modify,
expand,
or
subtract
from
the
law
it
is
intended
to
implement.
Any
rule
that
is
not
consistent
with
the
statute
itself
is
null
and
void.
While
administrative
agencies,
such
as
the
Bureau
of
Internal
Revenue,
may
issue
regulations
to
implement
statutes,
they
are
without
authority
to
limit
the
scope
of
the
statute
to
less
than
what
it
provides,
or
extend
or
expand
the
statute
beyond
its
terms,
or
in
any
way
modify
explicit
provisions
of
the
law.
Indeed,
a
quasi-‐judicial
body
or
an
administrative
agency
for
that
matter
cannot
amend
an
act
of
Congress.
Hence,
in
case
of
a
discrepancy
between
the
basic
law
and
an
interpretative
or
administrative
ruling,
the
basic
law
prevails.
To
recapitulate,
RR
7-‐95,
insofar
as
it
restricts
the
definition
of
"goods"
as
basis
of
transitional
input
tax
credit
under
Section
105
is
a
nullity.
As
we
see
it
then,
the
8%
transitional
input
tax
credit
should
not
be
limited
to
the
value
of
the
improvements
on
the
real
properties
but
should
include
the
value
of
the
real
properties
as
well.
Imprinting of the word "zero-‐rated" on the invoices or receipts is required.
Section
244
of
the
NIRC
explicitly
grants
the
Secretary
of
Finance
the
authority
to
promulgate
the
necessary
rules
and
regulations
for
the
effective
enforcement
of
the
provisions
of
the
tax
code.
Such
rules
and
regulations
"deserve
to
be
given
weight
and
respect
by
the
courts
in
view
of
the
rule-‐making
authority
given
to
those
who
formulate
them
and
their
specific
expertise
in
their
respective
fields."
The
need
for
taxpayers
to
indicate
in
their
invoices
and
receipts
the
fact
that
they
are
zero-‐rated
or
that
its
transactions
are
zero-‐rated
became
more
apparent
upon
the
integration
of
the
provisions
of
Revenue
Regulations
No.
7-‐95
in
Section
113
of
the
NIRC
enumerating
the
invoicing
requirements
of
VAT-‐
registered
persons
when
the
tax
code
was
amended
by
Republic
Act
(R.A.)
No.
9337.
A
consequence
of
failing
to
comply
with
the
invoicing
requirements
is
the
denial
of
the
claim
for
tax
refund
or
tax
credit,
as
stated
in
Revenue
Memorandum
Circular
No.
42-‐2003.
A
consequence
of
failing
to
comply
with
the
invoicing
requirements
is
the
denial
of
the
claim
for
tax
refund
or
tax
credit,
as
stated
in
Revenue
Memorandum
Circular
No.
42-‐2003,
to
wit:
ETPI
should
be
reminded
of
the
well-‐established
rule
that
tax
refunds,
which
are
in
the
nature
of
tax
exemptions,
are
construed
strictly
against
the
taxpayer
and
liberally
in
favor
of
the
government.
This
is
because
taxes
are
the
lifeblood
of
the
nation.
Thus,
the
burden
of
proof
is
upon
the
claimant
of
the
tax
refund
to
prove
the
factual
basis
of
his
claim.
Unfortunately,
ETPI
failed
to
discharge
this
burden.
16
Sec.
118.
Percentage
Tax
on
International
Carriers.
—
(A)
International
air
carriers
doing
business
in
the
Philippines
shall
pay
a
tax
of
three
percent
(3%)
of
their
quarterly
gross
receipts.
Pursuant
to
this,
the
Secretary
of
Finance
promulgated
Revenue
Regulations
No.
15-‐2002,
which
prescribes
that
"gross
receipts"
for
the
purpose
of
determining
Common
Carrier's
Tax
shall
be
the
same
as
the
tax
base
for
calculating
Gross
Philippine
Billings
Tax.
Section
5
of
the
same
provides
for
the
computation
of
"Gross
Philippine
Billings":
(a)
In
computing
for
"Gross
Philippine
Billings,"
there
shall
be
included
the
total
amount
of
gross
revenue
derived
from
passage
of
persons,
excess
baggage,
cargo
and/or
mail,
originating
from
the
Philippines
in
a
continuous
and
uninterrupted
flight,
irrespective
of
the
place
of
sale
or
issue
and
the
place
of
payment
of
the
passage
documents.
The
gross
revenue
for
passengers
whose
tickets
are
sold
in
the
Philippines
shall
be
the
actual
amount
derived
for
transportation
services,
for
a
first
class,
business
class
or
economy
class
passage,
as
the
case
may
be,
on
its
continuous
and
uninterrupted
flight
from
any
port
or
point
in
the
Philippines
to
its
final
destination
in
any
port
or
point
of
a
foreign
country,
as
reflected
in
the
remittance
area
of
the
tax
coupon
forming
an
integral
part
of
the
plane
ticket.
For
this
purpose,
the
Gross
Philippine
Billings
shall
be
determined
by
computing
the
monthly
average
net
fare
of
all
the
tax
coupons
of
plane
tickets
issued
for
the
month
per
point
of
final
destination,
per
class
of
passage
(i.e.,
first
class,
business
class,
or
economy
class)
and
per
classification
of
passenger
(i.e.,
adult,
child
or
infant)
and
multiplied
by
the
corresponding
total
number
of
passengers
flown
for
the
month
as
declared
in
the
flight
manifest.
For
tickets
sold
outside
the
Philippines,
the
gross
revenue
for
passengers
for
first
class,
business
class
or
economy
class
passage,
as
the
case
may
be,
on
a
continuous
and
uninterrupted
flight
from
any
port
of
point
in
the
Philippines
to
final
destination
in
any
port
or
point
of
a
foreign
country
shall
be
determined
using
the
locally
available
net
fares
applicable
to
such
flight
taking
into
consideration
the
seasonal
fare
rate
established
at
the
time
of
the
flight,
the
class
of
passage
(whether
first
class,
business
class,
economy
class
or
non-‐revenue),
the
classification
of
passenger
(whether
adult,
child
or
infant),
the
date
of
embarkation,
and
the
place
of
final
destination.
Correspondingly,
the
Gross
Philippine
Billing
for
tickets
sold
outside
the
Philippines
shall
be
determined
in
the
manner
as
provided
in
the
preceding
paragraph.
Passage
documents
revalidated,
exchanged
and/or
endorsed
to
another
on-‐line
international
airline
shall
be
included
in
the
taxable
base
of
the
carrying
airline
and
shall
be
subject
to
Gross
Philippine
Billings
tax
if
the
passenger
is
lifted/boarded
on
an
aircraft
from
any
port
or
point
in
the
Philippines
towards
a
foreign
destination.
17
The
gross
revenue
on
excess
baggage
which
originated
from
any
port
or
point
in
the
Philippines
and
destined
to
any
part
of
a
foreign
country
shall
be
computed
based
on
the
actual
revenue
derived
as
appearing
on
the
official
receipt
or
any
similar
document
for
the
said
transaction.
The
gross
revenue
for
freight
or
cargo
and
mail
shall
be
determined
based
on
the
revenue
realized
from
the
carriage
thereof.
The
amount
realized
for
freight
or
cargo
shall
be
based
on
the
amount
appearing
on
the
airway
bill
after
deducting
therefrom
the
amount
of
discounts
granted
which
shall
be
validated
using
the
monthly
cargo
sales
reports
generated
by
the
IATA
Cargo
Accounts
Settlement
System
(IATA
CASS)
for
airway
bills
issued
through
their
cargo
agents
or
the
monthly
reports
prepared
by
the
airline
themselves
or
by
their
general
sales
agents
for
direct
issues
made.
The
amount
realized
for
mails
shall,
on
the
other
hand,
be
determined
based
on
the
amount
as
reflected
in
the
cargo
manifest
of
the
carrier.
Republic
Act
No
8424,
Section
76
-‐
Final
Adjustment
Return.
—
Every
corporation
liable
to
tax
under
Section
27
shall
file
a
final
adjustment
return
covering
the
total
taxable
income
for
the
preceding
calendar
or
fiscal
year.
If
the
sum
of
the
quarterly
tax
payments
made
during
the
said
taxable
year
is
not
equal
to
the
total
tax
due
on
the
entire
taxable
income
of
that
year,
the
corporation
shall
either:
(C) Be credited or refunded with the excess amount paid, as the case may be.
In
case
the
corporation
is
entitled
to
a
tax
credit
or
refund
of
the
excess
estimated
quarterly
income
taxes
paid,
the
excess
amount
shown
on
its
final
adjustment
return
may
be
carried
over
and
credited
against
the
estimated
quarterly
income
tax
liabilities
for
the
taxable
quarters
of
the
succeeding
taxable
years.
Once
the
option
to
carry-‐over
and
apply
the
excess
quarterly
income
tax
against
income
due
for
the
taxable
quarters
of
the
succeeding
taxable
years
has
been
made,
such
option
shall
be
considered
irrevocable
for
that
taxable
period
and
no
application
for
cash
refund
or
issuance
of
a
tax
credit
certificate
shall
be
allowed
therefore.
From
the
aforequoted
provision,
it
is
clear
that
once
a
corporation
exercises
the
option
to
carry-‐over,
such
option
is
irrevocable
"for
that
taxable
period."
Having
chosen
to
carry-‐over
the
excess
quarterly
income
tax,
the
corporation
cannot
thereafter
choose
to
apply
for
a
cash
refund
or
for
the
issuance
of
a
tax
credit
certificate
for
the
amount
representing
such
overpayment.
To
avoid
confusion,
this
Court
has
properly
explained
the
phrase
"for
that
taxable
period"
in
Commissioner
of
Internal
Revenue
v.
Bank
of
the
Philippine
Islands.
In
said
case,
the
Court
held
that
the
phrase
merely
identifies
the
excess
income
tax,
subject
of
the
option,
by
referring
to
the
"taxable
period
when
it
was
acquired
by
the
taxpayer."
Thus:
18
.
.
.
Section
76
remains
clear
and
unequivocal.
Once
the
carry-‐over
option
is
taken,
actually
or
constructively,
it
becomes
irrevocable.
It
mentioned
no
exception
or
qualification
to
the
irrevocability
rule.
Hence,
the
controlling
factor
for
the
operation
of
the
irrevocability
rule
is
that
the
taxpayer
chose
an
option;
and
once
it
had
already
done
so,
it
could
no
longer
make
another
one.
Consequently,
after
the
taxpayer
opts
to
carry-‐over
its
excess
tax
credit
to
the
following
taxable
period,
the
question
of
whether
or
not
it
actually
gets
to
apply
said
tax
credit
is
irrelevant.
Section
76
of
the
NIRC
of
1997
is
explicit
in
stating
that
once
the
option
to
carry
over
has
been
made,
"no
application
for
tax
refund
or
issuance
of
a
tax
credit
certificate
shall
be
allowed
therefor."
The
last
sentence
of
Section
76
of
the
NIRC
of
1997
reads:
"Once
the
option
to
carry-‐over
and
apply
the
excess
quarterly
income
tax
against
income
tax
due
for
the
taxable
quarters
of
the
succeeding
taxable
years
has
been
made,
such
option
shall
be
considered
irrevocable
for
that
taxable
period
and
no
application
for
tax
refund
or
issuance
of
a
tax
credit
certificate
shall
be
allowed
therefore."
The
phrase
"for
that
taxable
period"
merely
identifies
the
excess
income
tax,
subject
of
the
option,
by
referring
to
the
taxable
period
when
it
was
acquired
by
the
taxpayer.
In
the
present
case,
the
excess
income
tax
credit,
which
BPI
opted
to
carry
over,
was
acquired
by
the
said
bank
during
the
taxable
year
1998.
The
option
of
BPI
to
carry
over
its
1998
excess
income
tax
credit
is
irrevocable;
it
cannot
later
on
opt
to
apply
for
a
refund
of
the
very
same
1998
excess
income
tax
credit.
The
Court
of
Appeals
mistakenly
understood
the
phrase
"for
that
taxable
period"
as
a
prescriptive
period
for
the
irrevocability
rule
.
.
.
.
The
evident
intent
of
the
legislature,
in
adding
the
last
sentence
to
Section
76
of
the
NIRC
of
1997,
is
to
keep
the
taxpayer
from
flip-‐flopping
on
its
options,
and
avoid
confusion
and
complication
as
regards
said
taxpayer's
excess
tax
credit.
The
interpretation
of
the
Court
of
Appeals
only
delays
the
flip-‐flopping
to
the
end
of
each
succeeding
taxable
period.
Plainly,
petitioner's
claim
for
refund
for
1998
should
be
denied
as
its
option
to
carry
over
has
precluded
it
from
claiming
the
refund
of
the
excess
1998
income
tax
payment.
Apropos,
we
now
resolve
the
issue
of
whether
petitioner
had
sufficiently
proven
entitlement
to
refund
its
tax
overpayments
for
taxable
year
1999.
In
claiming
for
the
refund
of
excess
creditable
withholding
tax,
petitioner
must
show
compliance
with
the
following
basic
requirements:
(1)
The
claim
for
refund
was
filed
within
two
years
as
prescribed
under
Section
229
of
the
NIRC
of
1997;
(2)
The
income
upon
which
the
taxes
were
withheld
were
included
in
the
return
of
the
recipient
(Section
10,
Revenue
Regulations
No.
6-‐85);
19
(3)
The
fact
of
withholding
is
established
by
a
copy
of
a
statement
(BIR
Form
1743.1)
duly
issued
by
the
payor
(withholding
agent)
to
the
payee
showing
the
amount
paid
and
the
amount
of
tax
withheld
therefrom
(Section
10,
Revenue
Regulations
No.
6-‐85).
Here,
it
is
undisputed
that
the
claim
for
refund
was
filed
within
the
two-‐year
prescriptive
period
prescribed
under
Section
229
of
the
NIRC
of
1997
and
that
the
taxpayer
was
able
to
present
its
certificate
of
creditable
tax
withheld
from
its
payor.
However,
records
show
that
petitioner
failed
to
reconcile
the
discrepancy
between
income
payments
per
its
income
tax
return
and
the
certificate
of
creditable
tax
withheld.
A
perusal
of
the
certificate
of
tax
withheld
would
reveal
that
petitioner
earned
P146,355,699.80.
On
the
contrary,
its
annual
income
tax
return
reflects
a
gross
income
from
film
rentals
in
the
amount
of
P145,381,568.00.
However,
despite
the
P974,131.80
difference,
both
the
certificate
of
taxes
withheld
and
income
tax
return
filed
by
petitioner
for
taxable
year
1999
indicate
the
same
amount
of
P7,317,785.00
as
creditable
tax
withheld.
What's
more,
petitioner
failed
to
present
sufficient
proof
to
allow
the
Court
to
trace
the
discrepancy
between
the
certificate
of
taxes
withheld
and
the
income
tax
return.
Parenthetically,
the
Office
of
the
Solicitor
General
correctly
pointed
out
that
the
amount
of
income
payments
in
the
income
tax
return
must
correspond
and
tally
to
the
amount
indicated
in
the
certificate
of
withholding,
since
there
is
no
possible
and
efficacious
way
by
which
the
BIR
can
verify
the
precise
identity
of
the
income
payments
as
reflected
in
the
income
tax
return.
Therefore,
petitioner's
claim
for
tax
refund
for
taxable
year
1999
must
be
denied,
since
it
failed
to
prove
that
the
income
payments
subjected
to
withholding
tax
were
declared
as
part
of
the
gross
income
of
the
taxpayer.
The
coconut
levy
funds
are
in
the
nature
of
taxes
and
can
only
be
used
for
public
purpose.
Consequently,
they
cannot
be
used
to
purchase
shares
of
stocks
to
be
given
for
free
to
private
individuals.
Indeed,
We
have
hitherto
discussed,
the
coconut
levy
was
imposed
in
the
exercise
of
the
State's
inherent
power
of
taxation.
As
We
wrote
in
Republic
v.
COCOFED:
Indeed,
coconut
levy
funds
partake
of
the
nature
of
taxes,
which,
in
general,
are
enforced
proportional
contributions
from
persons
and
properties,
exacted
by
the
State
by
virtue
of
its
sovereignty
for
the
support
of
government
and
for
all
public
needs.
Based
on
its
definition,
a
tax
has
three
elements,
namely:
a)
it
is
an
enforced
proportional
contribution
from
persons
and
properties;
b)
it
is
imposed
by
the
State
by
virtue
of
its
sovereignty;
and
c)
it
is
levied
for
the
support
of
the
government.
The
coconut
levy
funds
fall
squarely
into
these
elements
for
the
following
reasons:
20
(a)
They
were
generated
by
virtue
of
statutory
enactments
imposed
on
the
coconut
farmers
requiring
the
payment
of
prescribed
amounts.
Thus,
PD
No.
276,
which
created
the
Coconut
Consumer[s]
Stabilization
Fund
(CCSF),
mandated
the
following:
"a.
A
levy,
initially,
of
P15.00
per
100
kilograms
of
copra
resecada
or
its
equivalent
in
other
coconut
products,
shall
be
imposed
on
every
first
sale,
in
accordance
with
the
mechanics
established
under
RA
6260,
effective
at
the
start
of
business
hours
on
August
10,
1973."
"The
proceeds
from
the
levy
shall
be
deposited
with
the
Philippine
National
Bank
or
any
other
government
bank
to
the
account
of
the
Coconut
Consumers
Stabilization
Fund,
as
a
separate
trust
fund
which
shall
not
form
part
of
the
general
fund
of
the
government."
The
coco
levies
were
further
clarified
in
amendatory
laws,
specifically
PD
No.
961
and
PD
No.
1468
—
in
this
wise:
"The
Authority
(PCA)
is
hereby
empowered
to
impose
and
collect
a
levy,
to
be
known
as
the
Coconut
Consumers
Stabilization
Fund
Levy,
on
every
one
hundred
kilos
of
copra
resecada,
or
its
equivalent
.
.
.
delivered
to,
and/or
purchased
by,
copra
exporters,
oil
millers,
desiccators
and
other
end-‐users
of
copra
or
its
equivalent
in
other
coconut
products.
The
levy
shall
be
paid
by
such
copra
exporters,
oil
millers,
desiccators
and
other
end-‐users
of
copra
or
its
equivalent
in
other
coconut
products
under
such
rules
and
regulations
as
the
Authority
may
prescribe.
Until
otherwise
prescribed
by
the
Authority,
the
current
levy
being
collected
shall
be
continued."
Like
other
tax
measures,
they
were
not
voluntary
payments
or
donations
by
the
people.
They
were
enforced
contributions
exacted
on
pain
of
penal
sanctions,
as
provided
under
PD
No.
276:
"3.
Any
person
or
firm
who
violates
any
provision
of
this
Decree
or
the
rules
and
regulations
promulgated
thereunder,
shall,
in
addition
to
penalties
already
prescribed
under
existing
administrative
and
special
law,
pay
a
fine
of
not
less
than
P2,500
or
more
than
P10,000,
or
suffer
cancellation
of
licenses
to
operate,
or
both,
at
the
discretion
of
the
Court."
(b)
The
coconut
levies
were
imposed
pursuant
to
the
laws
enacted
by
the
proper
legislative
authorities
of
the
State.
Indeed,
the
CCSF
was
collected
under
PD
No.
276
.
.
.
."
(c)
They
were
clearly
imposed
for
a
public
purpose.
There
is
absolutely
no
question
that
they
were
collected
to
advance
the
government's
avowed
policy
of
protecting
the
coconut
industry.
This
Court
takes
judicial
notice
of
the
fact
that
the
coconut
industry
is
one
of
the
great
economic
pillars
of
our
nation,
and
coconuts
and
their
byproducts
occupy
a
leading
position
among
the
country's
export
products.
.
.
.
Taxation
is
done
not
merely
to
raise
revenues
to
support
the
government,
but
also
to
provide
means
for
the
rehabilitation
and
the
stabilization
of
a
threatened
industry,
which
is
so
affected
with
public
interest
as
to
be
within
the
police
power
of
the
State.
.
.
.
21
Even
if
the
money
is
allocated
for
a
special
purpose
and
raised
by
special
means,
it
is
still
public
in
character
.
.
.
.
In
Cocofed
v.
PCGG,
the
Court
observed
that
certain
agencies
or
enterprises
"were
organized
and
financed
with
revenues
derived
from
coconut
levies
imposed
under
a
succession
of
law
of
the
late
dictatorship
.
.
.
with
deposed
Ferdinand
Marcos
and
his
cronies
as
the
suspected
authors
and
chief
beneficiaries
of
the
resulting
coconut
industry
monopoly."
The
Court
continued:
"
.
.
.
.
It
cannot
be
denied
that
the
coconut
industry
is
one
of
the
major
industries
supporting
the
national
economy.
It
is,
therefore,
the
State's
concern
to
make
it
a
strong
and
secure
source
not
only
of
the
livelihood
of
a
significant
segment
of
the
population,
but
also
of
export
earnings
the
sustained
growth
of
which
is
one
of
the
imperatives
of
economic
stability.
We
have
ruled
time
and
again
that
taxes
are
imposed
only
for
a
public
purpose.
"They
cannot
be
used
for
purely
private
purposes
or
for
the
exclusive
benefit
of
private
persons."
When
a
law
imposes
taxes
or
levies
from
the
public,
with
the
intent
to
give
undue
benefit
or
advantage
to
private
persons,
or
the
promotion
of
private
enterprises,
that
law
cannot
be
said
to
satisfy
the
requirement
of
public
purpose.
In
Gaston
v.
Republic
Planters
Bank,
the
petitioning
sugar
producers,
sugarcane
planters
and
millers
sought
the
distribution
of
the
shares
of
stock
of
the
Republic
Planters
Bank,
alleging
that
they
are
the
true
beneficial
owners
thereof.
In
that
case,
the
investment,
i.e.,
the
purchase
of
the
said
bank,
was
funded
by
the
deduction
of
PhP1.00
per
picul
from
the
sugar
proceeds
of
the
sugar
producers
pursuant
to
P.D.
No.
388.
In
ruling
against
the
petitioners,
the
Court
held
that
to
rule
in
their
favor
would
contravene
the
general
principle
that
revenues
received
from
the
imposition
of
taxes
or
levies
"cannot
be
used
for
purely
private
purposes
or
for
the
exclusive
benefit
of
private
persons."
The
Court
amply
reasoned
that
the
Stabilization
Fund
must
"be
utilized
for
the
benefit
of
the
entire
sugar
industry,
and
all
its
components,
stabilization
of
the
domestic
market
including
foreign
market,
the
industry
being
of
vital
importance
to
the
country's
economy
and
to
national
interest."
Similarly
in
this
case,
the
coconut
levy
funds
were
sourced
from
forced
exactions
decreed
under
P.D.
Nos.
232,
276
and
582,
among
others,
with
the
end-‐goal
of
developing
the
entire
coconut
industry.
Clearly,
to
hold
therefore,
even
by
law,
that
the
revenues
received
from
the
imposition
of
the
coconut
levies
be
used
purely
for
private
purposes
to
be
owned
by
private
individuals
in
their
private
capacity
and
for
their
benefit,
would
contravene
the
rationale
behind
the
imposition
of
taxes
or
levies.
Needless
to
stress,
courts
do
not,
as
they
cannot,
allow
by
judicial
fiat
the
conversion
of
special
funds
into
a
private
fund
for
the
benefit
of
private
individuals.
In
the
same
vein,
We
cannot
subscribe
to
the
idea
of
what
appears
to
be
an
indirect
—
if
not
exactly
direct
—
conversion
of
special
funds
into
private
funds,
i.e.,
by
using
special
funds
to
purchase
shares
of
stocks,
which
in
turn
would
be
distributed
for
free
to
private
individuals.
Even
if
these
private
individuals
belong
to,
or
are
a
part
of
the
coconut
industry,
the
free
distribution
of
shares
of
stocks
purchased
with
special
public
funds
to
them,
nevertheless
cannot
be
justified.
The
ratio
in
Gaston,
as
expressed
below,
applies
mutatis
mutandis
to
this
case:
The
stabilization
fees
in
question
are
levied
by
the
State
.
.
.
for
a
special
purpose
—
that
of
"financing
the
growth
and
development
of
the
sugar
industry
and
all
its
components,
stabilization
of
the
domestic
market
including
the
foreign
market."
The
fact
that
the
State
has
taken
possession
of
22
moneys
pursuant
to
law
is
sufficient
to
constitute
them
as
state
funds
even
though
they
are
held
for
a
special
purpose.
.
.
.
That
the
fees
were
collected
from
sugar
producers,
[etc.],
and
that
the
funds
were
channeled
to
the
purchase
of
shares
of
stock
in
respondent
Bank
do
not
convert
the
funds
into
a
trust
fund
for
their
benefit
nor
make
them
the
beneficial
owners
of
the
shares
so
purchased.
It
is
but
rational
that
the
fees
be
collected
from
them
since
it
is
also
they
who
are
benefited
from
the
expenditure
of
the
funds
derived
from
it.
.
.
.
.
In
this
case,
the
coconut
levy
funds
were
being
exacted
from
copra
exporters,
oil
millers,
desiccators
and
other
end-‐users
of
copra
or
its
equivalent
in
other
coconut
products.
Likewise
so,
the
funds
here
were
channeled
to
the
purchase
of
the
shares
of
stock
in
UCPB.
Drawing
a
clear
parallelism
between
Gaston
and
this
case,
the
fact
that
the
coconut
levy
funds
were
collected
from
the
persons
or
entities
in
the
coconut
industry,
among
others,
does
not
and
cannot
entitle
them
to
be
beneficial
owners
of
the
subject
funds
—
or
more
bluntly,
owners
thereof
in
their
private
capacity.
Parenthetically,
the
said
private
individuals
cannot
own
the
UCPB
shares
of
stocks
so
purchased
using
the
said
special
funds
of
the
government.
Respondent,
however,
insists
that
in
case
of
the
inaction
by
the
Commissioner
on
the
protested
assessment
within
the
180-‐day
reglementary
period,
petitioner
should
have
appealed
the
inaction
to
the
CTA.
Respondent
maintains
that
due
to
Lascona's
failure
to
file
an
appeal
with
the
CTA
after
the
lapse
of
the
180-‐day
period,
the
assessment
became
final
and
executory.
In
RCBC
v.
CIR,
the
Court
has
held
that
in
case
the
Commissioner
failed
to
act
on
the
disputed
assessment
within
the
180-‐day
period
from
date
of
submission
of
documents,
a
taxpayer
can
either:
(1)
file
a
petition
for
review
with
the
Court
of
Tax
Appeals
within
30
days
after
the
expiration
of
the
180-‐day
period;
or
(2)
await
the
final
decision
of
the
Commissioner
on
the
disputed
assessments
and
appeal
such
final
decision
to
the
Court
of
Tax
Appeals
within
30
days
after
receipt
of
a
copy
of
such
decision.
This
is
consistent
with
Section
3
A
(2),
Rule
4
of
the
Revised
Rules
of
the
Court
of
Tax
Appeals,
to
wit:
SEC.
3.
Cases
within
the
jurisdiction
of
the
Court
in
Divisions.
—
The
Court
in
Divisions
shall
exercise:
(a) Exclusive original or appellate jurisdiction to review by appeal the following:
23
(1)
Decisions
of
the
Commissioner
of
Internal
Revenue
in
cases
involving
disputed
assessments,
refunds
of
internal
revenue
taxes,
fees
or
other
charges,
penalties
in
relation
thereto,
or
other
matters
arising
under
the
National
Internal
Revenue
Code
or
other
laws
administered
by
the
Bureau
of
Internal
Revenue;
In
arguing
that
the
assessment
became
final
and
executory
by
the
sole
reason
that
petitioner
failed
to
appeal
the
inaction
of
the
Commissioner
within
30
days
after
the
180-‐day
reglementary
period,
respondent,
in
effect,
limited
the
remedy
of
Lascona,
as
a
taxpayer,
under
Section
228
of
the
NIRC
to
just
one,
that
is
—
to
appeal
the
inaction
of
the
Commissioner
on
its
protested
assessment
after
the
lapse
of
the
180-‐day
period.
This
is
incorrect.
As
early
as
the
case
of
CIR
v.
Villa,
it
was
already
established
that
the
word
"decisions"
in
paragraph
1,
Section
7
of
Republic
Act
No.
1125,
quoted
above,
has
been
interpreted
to
mean
the
decisions
of
the
Commissioner
of
Internal
Revenue
on
the
protest
of
the
taxpayer
against
the
assessments.
Definitely,
said
word
does
not
signify
the
assessment
itself.
We
quote
what
this
Court
said
aptly
in
a
previous
case:
In
the
first
place,
we
believe
the
respondent
court
erred
in
holding
that
the
assessment
in
question
is
the
respondent
Collector's
decision
or
ruling
appealable
to
it,
and
that
consequently,
the
period
of
thirty
days
prescribed
by
section
11
of
Republic
Act
No.
1125
within
which
petitioner
should
have
appealed
to
the
respondent
court
must
be
counted
from
its
receipt
of
said
assessment.
Where
a
taxpayer
questions
an
assessment
and
asks
the
Collector
to
reconsider
or
cancel
the
same
because
he
(the
taxpayer)
believes
he
is
not
liable
therefor,
the
24
assessment
becomes
a
"disputed
assessment"
that
the
Collector
must
decide,
and
the
taxpayer
can
appeal
to
the
Court
of
Tax
Appeals
only
upon
receipt
of
the
decision
of
the
Collector
on
the
disputed
assessment,
.
.
.
Therefore,
as
in
Section
228,
when
the
law
provided
for
the
remedy
to
appeal
the
inaction
of
the
CIR,
it
did
not
intend
to
limit
it
to
a
single
remedy
of
filing
of
an
appeal
after
the
lapse
of
the
180-‐day
prescribed
period.
Precisely,
when
a
taxpayer
protested
an
assessment,
he
naturally
expects
the
CIR
to
decide
either
positively
or
negatively.
A
taxpayer
cannot
be
prejudiced
if
he
chooses
to
wait
for
the
final
decision
of
the
CIR
on
the
protested
assessment.
More
so,
because
the
law
and
jurisprudence
have
always
contemplated
a
scenario
where
the
CIR
will
decide
on
the
protested
assessment.
It
must
be
emphasized,
however,
that
in
case
of
the
inaction
of
the
CIR
on
the
protested
assessment,
while
we
reiterate
—
the
taxpayer
has
two
options,
either:
(1)
file
a
petition
for
review
with
the
CTA
within
30
days
after
the
expiration
of
the
180-‐day
period;
or
(2)
await
the
final
decision
of
the
Commissioner
on
the
disputed
assessment
and
appeal
such
final
decision
to
the
CTA
within
30
days
after
the
receipt
of
a
copy
of
such
decision,
these
options
are
mutually
exclusive
and
resort
to
one
bars
the
application
of
the
other.
Accordingly,
considering
that
Lascona
opted
to
await
the
final
decision
of
the
Commissioner
on
the
protested
assessment,
it
then
has
the
right
to
appeal
such
final
decision
to
the
Court
by
filing
a
petition
for
review
within
thirty
days
after
receipt
of
a
copy
of
such
decision
or
ruling,
even
after
the
expiration
of
the
180-‐day
period
fixed
by
law
for
the
Commissioner
of
Internal
Revenue
to
act
on
the
disputed
assessments.
Thus,
Lascona,
when
it
filed
an
appeal
on
April
12,
1999
before
the
CTA,
after
its
receipt
of
the
Letter
18
dated
March
3,
1999
on
March
12,
1999,
the
appeal
was
timely
made
as
it
was
filed
within
30
days
after
receipt
of
the
copy
of
the
decision.
Finally,
the
CIR
should
be
reminded
that
taxpayers
cannot
be
left
in
quandary
by
its
inaction
on
the
protested
assessment.
It
is
imperative
that
the
taxpayers
are
informed
of
its
action
in
order
that
the
taxpayer
should
then
at
least
be
able
to
take
recourse
to
the
tax
court
at
the
opportune
time.
As
correctly
pointed
out
by
the
tax
court:
.
.
.
to
adopt
the
interpretation
of
the
respondent
will
not
only
sanction
inefficiency,
but
will
likewise
condone
the
Bureau's
inaction.
This
is
especially
true
in
the
instant
case
when
despite
the
fact
that
respondent
found
petitioner's
arguments
to
be
in
order,
the
assessment
will
become
final,
executory
and
demandable
for
petitioner's
failure
to
appeal
before
us
within
the
thirty
(30)
day
period.
Taxes
are
the
lifeblood
of
the
government
and
so
should
be
collected
without
unnecessary
hindrance.
On
the
other
hand,
such
collection
should
be
made
in
accordance
with
law
as
any
25
arbitrariness
will
negate
the
very
reason
for
government
itself.
It
is
therefore
necessary
to
reconcile
the
apparently
conflicting
interests
of
the
authorities
and
the
taxpayers
so
that
the
real
purpose
of
taxation,
which
is
the
promotion
of
the
common
good,
may
be
achieved.
20
Thus,
even
as
we
concede
the
inevitability
and
indispensability
of
taxation,
it
is
a
requirement
in
all
democratic
regimes
that
it
be
exercised
reasonably
and
in
accordance
with
the
prescribed
procedure.
We
recognize
the
well-‐entrenched
principle
that
estoppel
does
not
apply
to
the
government,
especially
on
matters
of
taxation.
Taxes
are
the
nation's
lifeblood
through
which
government
agencies
continue
to
operate
and
with
which
the
State
discharges
its
functions
for
the
welfare
of
its
constituents.
As
an
exception,
however,
this
general
rule
cannot
be
applied
if
it
would
work
injustice
against
an
innocent
party.
Petron,
in
this
case,
was
not
proven
to
have
had
any
participation
in
or
knowledge
of
the
CIR's
allegation
of
the
fraudulent
transfer
and
utilization
of
the
subject
TCCs.
Respondent's
status
as
a
transferee
in
good
faith
and
for
value
of
these
TCCs
has
been
established
and
even
stipulated
upon
by
petitioner.
Respondent
was
thereby
provided
ample
protection
from
the
adverse
findings
subsequently
made
by
the
Center.
Given
the
circumstances,
the
CIR's
invocation
of
the
non-‐applicability
of
estoppel
in
this
case
is
misplaced.
On
the
final
issue
it
raised,
the
CIR
contends
that
a
25%
surcharge
and
a
20%
interest
per
annum
must
be
imposed
upon
Petron
for
respondent's
excise
tax
liabilities
as
mandated
under
Sections
248
and
249
of
the
National
Internal
Revenue
Code
(NIRC).
Petitioner
considers
the
tax
returns
filed
by
respondent
for
the
years
1995
to
1998
as
fraudulent
on
the
basis
of
the
post-‐audit
finding
that
the
TCCs
were
void.
It
argues
that
the
prescriptive
period
within
which
to
lawfully
assess
Petron
for
its
tax
liabilities
has
not
prescribed
under
Section
222
(a)
of
the
Tax
Code.
The
CIR
explains
that
respondent's
assessment
on
30
January
2002
of
respondent's
deficiency
excise
tax
for
the
years
1995
to
1998
was
well
within
the
ten-‐year
prescription
period.
In
the
light
of
the
main
ruling
in
this
case,
we
affirm
the
CTA
En
Banc
Decision
finding
Petron
to
be
an
innocent
transferee
for
value
of
the
subject
TCCs.
Consequently,
the
Tax
Returns
it
filed
for
the
years
1995
to
1998
are
not
considered
fraudulent.
Hence,
the
CIR
had
no
legal
basis
to
assess
the
excise
taxes
or
any
penalty
surcharge
or
interest
thereon,
as
respondent
had
already
paid
the
appropriate
excise
taxes
using
the
subject
TCCs.
26
Excise
taxes,
which
apply
to
articles
manufactured
or
produced
in
the
Philippines
for
domestic
sale
or
consumption
or
for
any
other
disposition
and
to
things
imported
into
the
Philippines,
is
basically
an
indirect
tax.
While
the
tax
is
directly
levied
upon
the
manufacturer/importer
upon
removal
of
the
taxable
goods
from
its
place
of
production
or
from
the
customs
custody,
the
tax,
in
reality,
is
actually
passed
on
to
the
end
consumer
as
part
of
the
transfer
value
or
selling
price
of
the
goods,
sold,
bartered
or
exchanged.
In
early
cases,
we
have
ruled
that
for
indirect
taxes
(such
as
valued-‐added
tax
or
VAT),
the
proper
party
to
question
or
seek
a
refund
of
the
tax
is
the
statutory
taxpayer,
the
person
on
whom
the
tax
is
imposed
by
law
and
who
paid
the
same
even
when
he
shifts
the
burden
thereof
to
another.
Thus,
in
Contex
Corporation
v.
Commissioner
of
Internal
Revenue,
we
held
that
while
it
is
true
that
petitioner
corporation
should
not
have
been
liable
for
the
VAT
inadvertently
passed
on
to
it
by
its
supplier
since
their
transaction
is
a
zero-‐rated
sale
on
the
part
of
the
supplier,
the
petitioner
is
not
the
proper
party
to
claim
such
VAT
refund.
Rather,
it
is
the
petitioner's
suppliers
who
are
the
proper
parties
to
claim
the
tax
credit
and
accordingly
refund
the
petitioner
of
the
VAT
erroneously
passed
on
to
the
latter.
In the first Silkair case decided on February 6, 2008, this Court categorically declared:
The
proper
party
to
question,
or
seek
a
refund
of,
an
indirect
tax
is
the
statutory
taxpayer,
the
person
on
whom
the
tax
is
imposed
by
law
and
who
paid
the
same
even
if
he
shifts
the
burden
thereof
to
another.
Section
130
(A)
(2)
of
the
NIRC
provides
that
"[u]nless
otherwise
specifically
allowed,
the
return
shall
be
filed
and
the
excise
tax
paid
by
the
manufacturer
or
producer
before
removal
of
domestic
products
from
place
of
production."
Thus,
Petron
Corporation,
not
Silkair,
is
the
statutory
taxpayer
which
is
entitled
to
claim
a
refund
based
on
Section
135
of
the
NIRC
of
1997
and
Article
4(2)
of
the
Air
Transport
Agreement
between
RP
and
Singapore.
Even
if
Petron
Corporation
passed
on
to
Silkair
the
burden
of
the
tax,
the
additional
amount
billed
to
Silkair
for
jet
fuel
is
not
a
tax
but
part
of
the
price
which
Silkair
had
to
pay
as
a
purchaser.
13.) PAMBANSANG
KOALISYON
NG
MGA
SAMAHANG
MAGSASAKA
AT
MANGGAGAWA
SA
NIYUGAN
VS.
EXECUTIVE
SECRETARY
The
Court
was
satisfied
that
the
coco-‐levy
funds
were
raised
pursuant
to
law
to
support
a
proper
governmental
purpose.
They
were
raised
with
the
use
of
the
police
and
taxing
powers
of
the
State
for
the
benefit
of
the
coconut
industry
and
its
farmers
in
general.
The
COA
reviewed
the
use
of
the
funds.
The
Bureau
of
Internal
Revenue
(BIR)
treated
them
as
public
funds
and
the
very
laws
governing
coconut
levies
recognize
their
public
character.
27
The
Court
has
also
recently
declared
that
the
coco-‐levy
funds
are
in
the
nature
of
taxes
and
can
only
be
used
for
public
purpose.
Taxes
are
enforced
proportional
contributions
from
persons
and
property,
levied
by
the
State
by
virtue
of
its
sovereignty
for
the
support
of
the
government
and
for
all
its
public
needs.
Here,
the
coco-‐levy
funds
were
imposed
pursuant
to
law,
namely,
R.A.
6260
and
P.D.
276.
The
funds
were
collected
and
managed
by
the
PCA,
an
independent
government
corporation
directly
under
the
President.
And,
as
the
respondent
public
officials
pointed
out,
the
pertinent
laws
used
the
term
levy,
which
means
to
tax,
in
describing
the
exaction.
Of
course,
unlike
ordinary
revenue
laws,
R.A.
6260
and
P.D.
276
did
not
raise
money
to
boost
the
government's
general
funds
but
to
provide
means
for
the
rehabilitation
and
stabilization
of
a
threatened
industry,
the
coconut
industry,
which
is
so
affected
with
public
interest
as
to
be
within
the
police
power
of
the
State.
The
funds
sought
to
support
the
coconut
industry,
one
of
the
main
economic
backbones
of
the
country,
and
to
secure
economic
benefits
for
the
coconut
farmers
and
farm
workers.
The
subject
laws
are
akin
to
the
sugar
liens
imposed
by
Sec.
7(b)
of
P.D.
388,
and
the
oil
price
stabilization
funds
under
P.D.
1956,
as
amended
by
E.O.
137.
A
taxpayer
dissatisfied
with
a
local
treasurer's
denial
of
or
inaction
on
his
protest
over
an
assessment
has
thirty
(30)
days
within
which
to
appeal
to
the
court
of
competent
jurisdiction.
Under
the
law,
said
period
is
to
be
reckoned
from
the
taxpayer's
receipt
of
the
denial
of
his
protest
or
the
lapse
of
the
sixty
(60)-‐day
period
within
which
the
local
treasurer
is
required
to
decide
the
protest,
from
the
moment
of
its
filing.
This
is
clear
from
Section
195
of
the
Local
Government
Code.
Absent
any
showing
of
the
formal
denial
of
the
protest
by
Atty.
Miranda,
then
Chief
of
the
Taguig
Business
Permit
and
Licensing
Office,
we
find
that
TPC's
filing
of
its
petition
before
the
RTC
on
19
April
2004
still
timely.
Reckoned
from
the
filing
of
the
letter
protest
on
19
January
2004,
Daza
had
sixty
(60)
days
or
until
19
March
2004
within
which
to
resolve
the
same
in
view
of
the
fact
that
2004
was
a
leap
year.
From
the
lapse
of
said
period,
TPC,
in
turn,
had
thirty
(30)
days
or
until
18
March
2004
within
which
to
file
its
appeal
to
the
RTC.
Since
the
latter
date
fell
on
a
Sunday,
the
RTC
correctly
ruled
that
TPC's
filing
of
its
petition
on
19
April
2004
was
still
within
the
period
prescribed
under
the
above
quoted
provision.
Whether
or
not
a
Rule
65
petition
for
certiorari
was
the
appropriate
remedy
from
Daza's
inaction
on
TPC's
letter-‐protest
is,
however,
an
entirely
different
issue
which
we
are
now
called
upon
to
resolve,
considering
the
RTC's
ruling
that
it
should
have
filed
an
ordinary
appeal
instead.
As
correctly
observed
by
TPC,
after
all,
Section
195
of
the
Local
Government
Code
does
not
elaborate
on
how
an
appeal
is
to
be
made
from
the
denial
by
a
local
treasurer
of
a
protest
on
assessment
made
by
a
taxpayer.
In
the
case
of
Yamane
vs.
BA
Lepanto
Condominium
Corporation
(BLCC),
this
Court
saw
fit
to
rule
that
the
remedy
to
be
pursued
by
the
taxpayer
is
one
cognizable
by
the
RTC
in
the
exercise
of
its
original
—
not
its
appellate
—
jurisdiction.
In
said
case,
BLCC's
appeal
from
the
denial
of
its
protest
by
the
Makati
City
Treasurer
was
dismissed
for
lack
of
merit
by
the
RTC,
prompting
said
taxpayer
to
file
a
Rule
42
28
petition
for
review
with
the
Court
of
Appeals
(CA).
After
reconsidering
its
earlier
decision
to
dismiss
the
petition
on
the
ground
that
said
remedy
is
restricted
to
decisions
rendered
by
the
RTC
on
appeal,
the
CA
went
on
to
render
a
decision
finding
BLCC
not
liable
for
the
business
tax
assessed
by
the
Makati
City
Treasurer.
Sustaining
the
latter's
position
that
the
jurisdiction
exercised
by
the
RTC
over
BLCC's
appeal
was
original
in
character,
this
Court
ruled
as
follows:
.
.
.
[S]
significantly,
the
Local
Government
Code,
or
any
other
statute
for
that
matter,
does
not
expressly
confer
appellate
jurisdiction
on
the
part
of
regional
trial
courts
from
the
denial
of
a
tax
protest
by
a
local
treasurer.
On
the
other
hand,
Section
22
of
B.P.
129
expressly
delineates
the
appellate
jurisdiction
of
the
Regional
Trial
Courts,
confining
as
it
does
said
appellate
jurisdiction
to
cases
decided
by
Metropolitan,
Municipal,
and
Municipal
Circuit
Trial
Courts.
Unlike
in
the
case
of
the
Court
of
Appeals,
B.P.
129
does
not
confer
appellate
jurisdiction
on
Regional
Trial
Courts
over
rulings
made
by
non-‐judicial
entities.
From
these
premises,
it
is
evident
that
the
stance
of
the
City
Treasurer
is
correct
as
a
matter
of
law,
and
that
the
proper
remedy
of
the
Corporation
from
the
RTC
judgment
is
an
ordinary
appeal
under
Rule
41
to
the
Court
of
Appeals.
However,
we
make
this
pronouncement
subject
to
two
important
qualifications.
First,
in
this
particular
case
there
are
nonetheless
significant
reasons
for
the
Court
to
overlook
the
procedural
error
and
ultimately
uphold
the
adjudication
of
the
jurisdiction
exercised
by
the
Court
of
Appeals
in
this
case.
Second,
the
doctrinal
weight
of
the
pronouncement
is
confined
to
cases
and
controversies
that
emerged
prior
to
the
enactment
of
Republic
Act
No.
9282,
the
law
which
expanded
the
jurisdiction
of
the
Court
of
Tax
Appeals
(CTA).
(Emphasis
supplied)
The
foregoing
pronouncements
notwithstanding,
we
find
that
TPC
erroneously
availed
of
the
wrong
remedy
in
filing
a
Rule
65
petition
for
certiorari
to
question
Daza's
inaction
on
its
letter-‐protest.
The
rule
is
settled
that,
as
a
special
civil
action,
certiorari
is
available
only
if
the
following
essential
requisites
concur:
(1)
it
must
be
directed
against
a
tribunal,
board,
or
officer
exercising
judicial
or
quasi-‐judicial
functions;
(2)
the
tribunal,
board,
or
officer
must
have
acted
without
or
in
excess
of
jurisdiction
or
with
grave
abuse
of
discretion
amounting
to
lack
or
excess
of
jurisdiction;
and,
(3)
there
is
no
appeal
nor
any
plain,
speedy,
and
adequate
remedy
in
the
ordinary
course
of
law.
Judicial
function
entails
the
power
to
determine
what
the
law
is
and
what
the
legal
rights
of
the
parties
are,
and
then
undertakes
to
determine
these
questions
and
adjudicate
upon
the
rights
of
the
parties.
Quasi-‐judicial
function,
on
the
other
hand,
refers
to
the
action
and
discretion
of
public
administrative
officers
or
bodies,
which
are
required
to
investigate
facts
or
ascertain
the
existence
of
facts,
hold
hearings,
and
draw
conclusions
from
them
as
a
basis
for
their
official
action
and
to
exercise
discretion
of
a
judicial
nature.
Gauged
from
the
foregoing
definitions,
Daza
cannot
be
said
to
be
performing
a
judicial
or
quasi-‐judicial
function
in
assessing
TPC's
business
tax
and/or
effectively
denying
its
protest
as
then
Municipal
Treasurer
of
Taguig.
For
this
reason,
Daza's
actions
are
not
the
proper
subjects
of
a
Rule
65
petition
for
certiorari
which
is
the
appropriate
remedy
in
cases
where
the
tribunal,
board,
or
officer
exercising
judicial
or
quasi-‐judicial
functions
acted
without
or
in
grave
abuse
of
discretion
amounting
to
lack
or
excess
of
jurisdiction
and
there
is
no
appeal
or
any
plain,
speedy,
and
adequate
remedy
in
law.
Narrow
in
scope
and
inflexible
in
character,
certiorari
is
an
extraordinary
remedy
designed
for
the
correction
of
errors
of
jurisdiction
and
not
errors
of
judgment.
It
is
likewise
considered
mutually
29
exclusive
with
appeal
like
the
one
provided
by
Article
195
of
the
Local
Government
Code
for
a
local
treasurer's
denial
of
or
inaction
on
a
protest.
Even
if,
in
the
interest
of
substantial
justice,
we
were
to
consider
its
petition
for
certiorari
as
an
appeal
from
Daza's
denial
of
its
protest,
TPC's
availment
of
the
wrong
mode
of
appeal
from
the
RTC's
assailed
5
April
2005
Order
has,
moreover,
clearly
rendered
the
same
final
and
executory.
Granted
that
a
Rule
45
petition
for
review
on
certiorari
is
the
proper
mode
of
appeal
when
the
issues
raised
are
purely
questions
of
law,
TPC
lost
sight
of
the
fact
that,
as
amended
by
RA
No.
9282,
paragraph
c
(2)
[a],
Section
7
of
RA
No.
1125
has
vested
the
Court
of
Tax
Appeals
(CTA)
with
the
exclusive
appellate
jurisdiction
over,
among
others,
appeals
from
the
judgments,
resolutions
or
orders
of
the
RTC
in
tax
collection
cases
originally
decided
by
them
in
their
respective
territorial
jurisdiction.
As
amended
by
Section
9
of
RA
No.
9282,
Section
11
of
RA
No.
1125
likewise
requires
that
the
appeal
be
perfected
within
thirty
(30)
days
after
receipt
of
the
decision
and
shall
be
made
by
filing
a
petition
for
review
under
a
procedure
analogous
to
that
provided
for
under
Rule
42
of
the
1997
Rules
of
Civil
Procedure.
To
our
mind,
TPC's
erroneous
availment
of
the
wrong
mode
of
appeal
and
direct
resort
to
this
Court
instead
of
the
CTA
both
warrant
the
dismissal
of
the
petition
at
bench.
The
rule
is
settled
that
the
perfection
of
an
appeal
in
the
manner
and
within
the
period
fixed
by
law
is
not
only
mandatory
but
jurisdictional
and
non-‐compliance
with
these
legal
requirements
is
fatal
to
a
party's
cause.
In
Zamboanga
Forest
Managers
Corp.
vs.
Pacific
Timber
and
Supply
Co.,
we
ruled
as
follows:
Although
appeal
is
an
essential
part
of
our
judicial
process,
it
has
been
held,
time
and
again,
that
the
right
thereto
is
not
a
natural
right
or
a
part
of
due
process
but
is
merely
a
statutory
privilege.
Thus,
the
perfection
of
an
appeal
in
the
manner
and
within
the
period
prescribed
by
law
is
not
only
mandatory
but
also
jurisdictional
and
failure
of
a
party
to
conform
to
the
rules
regarding
appeal
will
render
the
judgment
final
and
executory.
Once
a
decision
attains
finality,
it
becomes
the
law
of
the
case
irrespective
of
whether
the
decision
is
erroneous
or
not
and
no
court
—
not
even
the
Supreme
Court
—
has
the
power
to
revise,
review,
change
or
alter
the
same.
The
basic
rule
of
finality
of
judgment
is
grounded
on
the
fundamental
principle
of
public
policy
and
sound
practice
that,
at
the
risk
of
occasional
error,
the
judgment
of
courts
and
the
award
of
quasi-‐judicial
agencies
must
become
final
at
some
definite
date
fixed
by
law.
Recipient
of
services
must
be
doing
business
outside
the
Philippines
for
the
transactions
to
qualify
as
zero-‐rated.
The
evidence
presented
by
Accenture
may
have
established
that
its
clients
are
foreign.
This
fact
does
not
automatically
mean,
however,
that
these
clients
were
doing
business
outside
the
Philippines.
After
all,
the
Tax
Code
itself
has
provisions
for
a
foreign
corporation
engaged
in
business
within
the
Philippines
and
vice
versa,
to
wit:
30
xxx
xxx
xxx
(H)
The
term
"resident
foreign
corporation"
applies
to
a
foreign
corporation
engaged
in
trade
or
business
within
the
Philippines.
(I)
The
term
'nonresident
foreign
corporation'
applies
to
a
foreign
corporation
not
engaged
in
trade
or
business
within
the
Philippines.
(Emphasis
in
the
original)
Consequently,
to
come
within
the
purview
of
Section
108
(B)
(2),
it
is
not
enough
that
the
recipient
of
the
service
be
proven
to
be
a
foreign
corporation;
rather,
it
must
be
specifically
proven
to
be
a
nonresident
foreign
corporation.
There
is
no
specific
criterion
as
to
what
constitutes
"doing"
or
"engaging
in"
or
"transacting"
business.
We
ruled
thus
in
Commissioner
of
Internal
Revenue
v.
British
Overseas
Airways
Corporation:
A
taxpayer
claiming
a
tax
credit
or
refund
has
the
burden
of
proof
to
establish
the
factual
basis
of
that
claim.
Tax
refunds,
like
tax
exemptions,
are
construed
strictly
against
the
taxpayer.
Accenture
failed
to
discharge
this
burden.
It
alleged
and
presented
evidence
to
prove
only
that
its
clients
were
foreign
entities.
However,
as
found
by
both
the
CTA
Division
and
the
CTA
En
Banc,
no
evidence
was
presented
by
Accenture
to
prove
the
fact
that
the
foreign
clients
to
whom
petitioner
rendered
its
services
were
clients
doing
business
outside
the
Philippines.
As
ruled
by
the
CTA
En
Banc,
the
Official
Receipts,
Intercompany
Payment
Requests,
Billing
Statements,
Memo
Invoices-‐Receivable,
Memo
Invoices-‐Payable,
and
Bank
Statements
presented
by
Accenture
merely
substantiated
the
existence
of
sales,
receipt
of
foreign
currency
payments,
and
inward
remittance
of
the
proceeds
of
such
sales
duly
accounted
for
in
accordance
with
BSP
rules,
all
of
these
were
devoid
of
any
evidence
that
the
clients
were
doing
business
outside
of
the
Philippines.
31
government-‐owned
or
controlled
corporations
that
perform
economic
or
commercial
activities
and
need
to
compete
in
the
market
place.
Being
essentially
economic
vehicles
of
the
State
for
the
common
good
—
meaning
for
economic
development
purposes
—
these
government-‐owned
or
controlled
corporations
with
special
charters
are
usually
organized
as
stock
corporations
just
like
ordinary
private
corporations.
Clearly,
the
test
of
economic
viability
does
not
apply
to
government
entities
vested
with
corporate
powers
and
performing
essential
public
services.
The
State
is
obligated
to
render
essential
public
services
regardless
of
the
economic
viability
of
providing
such
service.
The
non-‐economic
viability
of
rendering
such
essential
public
service
does
not
excuse
the
State
from
withholding
such
essential
services
from
the
public.
There
is,
moreover,
no
point
in
national
and
local
governments
taxing
each
other,
unless
a
sound
and
compelling
policy
requires
such
transfer
of
public
funds
from
one
government
pocket
to
another.
There
is
also
no
reason
for
local
governments
to
tax
national
government
instrumentalities
for
rendering
essential
public
services
to
inhabitants
of
local
governments.
The
only
exception
is
when
the
legislature
clearly
intended
to
tax
government
instrumentalities
for
the
delivery
of
essential
public
services
for
sound
and
compelling
policy
considerations.
There
must
be
express
language
in
the
law
empowering
local
governments
to
tax
national
government
instrumentalities.
Any
doubt
whether
such
power
exists
is
resolved
against
local
governments.
17.) CITY OF IRIGA VS. CAMARINES SUR III ELECTRIC COOPERATIVE, INC.
Considering
that
RA
9282
was
already
in
effect
when
the
RTC
rendered
its
decision
on
February
7,
2005,
CASURECO
III
should
have
filed
its
appeal,
not
with
the
CA,
but
with
the
CTA
Division
in
accordance
with
the
applicable
law
and
the
rules
of
the
CTA.
Resort
to
the
CA
was,
therefore,
improper,
rendering
its
decision
null
and
void
for
want
of
jurisdiction
over
the
subject
matter.
A
void
judgment
has
no
legal
or
binding
force
or
efficacy
for
any
purpose
or
at
any
place.
Hence,
the
fact
that
petitioner's
motion
for
reconsideration
from
the
CA
Decision
was
belatedly
filed
is
inconsequential,
because
a
void
and
non-‐
existent
decision
would
never
have
acquired
finality.
The
foregoing
procedural
lapses
would
have
been
sufficient
to
dismiss
the
instant
petition
outright
and
declare
the
decision
of
the
RTC
final.
However,
the
substantial
merits
of
the
case
compel
us
to
dispense
with
these
lapses
and
instead,
exercise
the
Court's
power
of
judicial
review.
32
On
March
10,
1990,
Congress
enacted
into
law
RA
6938,
otherwise
known
as
the
"Cooperative
Code
of
the
Philippines,"
and
RA
6939
creating
the
CDA.
The
latter
law
vested
the
power
to
register
cooperatives
solely
on
the
CDA,
while
the
former
provides
that
electric
cooperatives
registered
with
the
NEA
under
PD
269
which
opt
not
to
register
with
the
CDA
shall
not
be
entitled
to
the
benefits
and
privileges
under
the
said
law.
On
January
1,
1992,
the
LGC
took
effect,
and
Section
193
thereof
withdrew
tax
exemptions
or
incentives
previously
enjoyed
by
"all
persons,
whether
natural
or
juridical,
including
government-‐owned
or
controlled
corporations,
except
local
water
districts,
cooperatives
duly
registered
under
R.A.
No.
6938,
non-‐stock
and
non-‐profit
hospitals
and
educational
institutions."
Therefore,
CASURECO
III
can
no
longer
invoke
PD
269
to
evade
payment
of
local
taxes.
Moreover,
its
provisional
registration
with
the
CDA
which
granted
it
exemption
for
the
payment
of
local
taxes
was
extended
only
until
May
4,
1992.
Thereafter,
it
can
no
longer
claim
any
exemption
from
the
payment
of
local
taxes,
including
the
subject
franchise
tax.
Indisputably,
petitioner
has
the
power
to
impose
local
taxes.
The
power
of
the
local
government
units
to
impose
and
collect
taxes
is
derived
from
the
Constitution
itself
which
grants
them
"the
power
to
create
its
own
sources
of
revenues
and
to
levy
taxes,
fees
and
charges
subject
to
such
guidelines
and
limitation
as
the
Congress
may
provide."
This
explicit
constitutional
grant
of
power
to
tax
is
consistent
with
the
basic
policy
of
local
autonomy
and
decentralization
of
governance.
With
this
power,
local
government
units
have
the
fiscal
mechanisms
to
raise
the
funds
needed
to
deliver
basic
services
to
their
constituents
and
break
the
culture
of
dependence
on
the
national
government.
Thus,
consistent
with
these
objectives,
the
LGC
was
enacted
granting
the
local
government
units,
like
petitioner,
the
power
to
impose
and
collect
franchise
tax,
to
wit:
In
National
Power
Corporation
v.
City
of
Cabanatuan,
29
the
Court
declared
that
"a
franchise
tax
is
'a
tax
on
the
privilege
of
transacting
business
in
the
state
and
exercising
corporate
franchises
granted
by
the
state.'"
It
is
not
levied
on
the
corporation
simply
for
existing
as
a
corporation,
upon
its
property
or
its
income,
but
on
its
exercise
of
the
rights
or
privileges
granted
to
it
by
the
government.
"It
is
within
this
context
that
the
phrase
'tax
on
businesses
enjoying
a
franchise'
in
Section
137
of
the
LGC
should
be
interpreted
and
understood."
Thus,
to
be
liable
for
local
franchise
tax,
the
following
requisites
should
concur:
(1)
that
one
has
a
"franchise"
in
the
sense
of
a
secondary
or
special
franchise;
and
(2)
that
it
is
exercising
its
rights
or
privileges
under
this
franchise
within
the
territory
of
the
pertinent
local
government
unit.
There
is
a
confluence
of
these
requirements
in
the
case
at
bar.
By
virtue
of
PD
269,
NEA
granted
CASURECO
III
a
franchise
to
operate
an
electric
light
and
power
service
for
a
period
of
fifty
(50)
years
from
June
6,
1979,
and
it
is
undisputed
that
CASURECO
III
operates
within
Iriga
City
and
the
Rinconada
area.
It
is,
therefore,
liable
to
pay
franchise
tax
notwithstanding
its
non-‐profit
nature.
It
should
be
stressed
that
what
the
petitioner
seeks
to
collect
from
CASURECO
III
is
a
franchise
tax,
which
as
defined,
is
a
tax
on
the
exercise
of
a
privilege.
As
Section
137
of
the
LGC
provides,
franchise
33
tax
shall
be
based
on
gross
receipts
precisely
because
it
is
a
tax
on
business,
rather
than
on
persons
or
property.
Since
it
partakes
of
the
nature
of
an
excise
tax,
the
situs
of
taxation
is
the
place
where
the
privilege
is
exercised,
in
this
case
in
the
City
of
Iriga,
where
CASURECO
III
has
its
principal
office
and
from
where
it
operates,
regardless
of
the
place
where
its
services
or
products
are
delivered.
Hence,
franchise
tax
covers
all
gross
receipts
from
Iriga
City
and
the
Rinconada
area.
A
tax
amnesty
is
a
general
pardon
or
the
intentional
overlooking
by
the
State
of
its
authority
to
impose
penalties
on
persons
otherwise
guilty
of
violating
a
tax
law.
It
partakes
of
an
absolute
waiver
by
the
government
of
its
right
to
collect
what
is
due
it
and
to
give
tax
evaders
who
wish
to
relent
a
chance
to
start
with
a
clean
slate.
A
tax
amnesty,
much
like
a
tax
exemption,
is
never
favored
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.
In
2007,
RA
9480
took
effect
granting
a
tax
amnesty
to
qualified
taxpayers
for
all
national
internal
revenue
taxes
for
the
taxable
year
2005
and
prior
years,
with
or
without
assessments
duly
issued
therefor,
that
have
remained
unpaid
as
of
December
31,
2005.
The
Tax
Amnesty
Program
under
RA
9480
may
be
availed
of
by
any
person
except
those
who
are
disqualified
under
Section
8
thereof,
to
wit:
Section
8.
Exceptions.
—
The
tax
amnesty
provided
in
Section
5
hereof
shall
not
extend
to
the
following
persons
or
cases
existing
as
of
the
effectivity
of
this
Act:
(a) Withholding agents with respect to their withholding tax liabilities;
(b)
Those
with
pending
cases
falling
under
the
jurisdiction
of
the
Presidential
Commission
on
Good
Government;
(c)
Those
with
pending
cases
involving
unexplained
or
unlawfully
acquired
wealth
or
under
the
Anti-‐Graft
and
Corrupt
Practices
Act;
(d) Those with pending cases filed in court involving violation of the Anti-‐Money Laundering Law;
(e)
Those
with
pending
criminal
cases
for
tax
evasion
and
other
criminal
offenses
under
Chapter
II
of
Title
X
of
the
National
Internal
Revenue
Code
of
1997,
as
amended,
and
the
felonies
of
frauds,
illegal
exactions
and
transactions,
and
malversation
of
public
funds
and
property
under
Chapters
III
and
IV
of
Title
VII
of
the
Revised
Penal
Code;
and
(f) Tax cases subject of final and executory judgment by the courts. (Emphasis supplied)
34
The
CIR
contends
that
AIA
is
disqualified
under
Section
8
(a)
of
RA
9480
from
availing
itself
of
the
Tax
Amnesty
Program
because
it
is
"deemed"
a
withholding
agent
for
the
deficiency
taxes.
This
argument
is
untenable.
The
CIR
did
not
assess
AIA
as
a
withholding
agent
that
failed
to
withhold
or
remit
the
deficiency
VAT
and
excise
tax
to
the
BIR
under
relevant
provisions
of
the
Tax
Code.
Hence,
the
argument
that
AIA
is
"deemed"
a
withholding
agent
for
these
deficiency
taxes
is
fallacious.
Indirect
taxes,
like
VAT
and
excise
tax,
are
different
from
withholding
taxes.
To
distinguish,
in
indirect
taxes,
the
incidence
of
taxation
falls
on
one
person
but
the
burden
thereof
can
be
shifted
or
passed
on
to
another
person,
such
as
when
the
tax
is
imposed
upon
goods
before
reaching
the
consumer
who
ultimately
pays
for
it.
On
the
other
hand,
in
case
of
withholding
taxes,
the
incidence
and
burden
of
taxation
fall
on
the
same
entity,
the
statutory
taxpayer.
The
burden
of
taxation
is
not
shifted
to
the
withholding
agent
who
merely
collects,
by
withholding,
the
tax
due
from
income
payments
to
entities
arising
from
certain
transactions
and
remits
the
same
to
the
government.
Due
to
this
difference,
the
deficiency
VAT
and
excise
tax
cannot
be
"deemed"
as
withholding
taxes
merely
because
they
constitute
indirect
taxes.
Moreover,
records
support
the
conclusion
that
AIA
was
assessed
not
as
a
withholding
agent
but,
as
the
one
directly
liable
for
the
said
deficiency
taxes.
The
CIR
also
argues
that
AIA,
being
an
accredited
investor/taxpayer
situated
at
the
Subic
Special
Economic
Zone,
should
have
availed
of
the
tax
amnesty
granted
under
RA
9399
29
and
not
under
RA
9480.
This
is
also
untenable.
RA
9399
was
passed
prior
to
the
passage
of
RA
9480.
RA
9399
does
not
preclude
taxpayers
within
its
coverage
from
availing
of
other
tax
amnesty
programs
available
or
enacted
in
futuro
like
RA
9480.
More
so,
RA
9480
does
not
exclude
from
its
coverage
taxpayers
operating
within
special
economic
zones.
As
long
as
it
is
within
the
bounds
of
the
law,
a
taxpayer
has
the
liberty
to
choose
which
tax
amnesty
program
it
wants
to
avail.
Lastly,
the
Court
takes
judicial
notice
of
the
"Certification
of
Qualification"
issued
by
Eduardo
A.
Baluyut,
BIR
Revenue
District
Officer,
stating
that
AIA
"has
availed
and
is
qualified
for
Tax
Amnesty
for
the
Taxable
Year
2005
and
Prior
Years"
pursuant
to
RA
9480.
In
the
absence
of
sufficient
evidence
proving
that
the
certification
was
issued
in
excess
of
authority,
the
presumption
that
it
was
issued
in
the
regular
performance
of
the
revenue
district
officer's
official
duty
stands.
A
taxpayer
is
deemed
to
have
the
standing
to
raise
a
constitutional
issue
when
it
is
established
that
public
funds
from
taxation
have
been
disbursed
in
alleged
contravention
of
the
law
or
the
Constitution.
Petitioner
claims
that
the
issuance
of
Circular
No.
89-‐299
has
led
to
the
dissipation
of
public
funds
through
numerous
irregularities
in
government
financial
transactions.
These
transactions
have
allegedly
been
left
unchecked
by
the
lifting
of
the
pre-‐audit
performed
by
COA,
which,
petitioner
argues,
is
its
35
Constitutional
duty.
Thus,
petitioner
has
standing
to
file
this
suit
as
a
taxpayer,
since
he
would
be
adversely
affected
by
the
illegal
use
of
public
money.
It
must
be
remembered
that
when
claiming
tax
refund/credit,
the
VAT-‐registered
taxpayer
must
be
able
to
establish
that
it
does
have
refundable
or
creditable
input
VAT,
and
the
same
has
not
been
applied
against
its
output
VAT
liabilities
—
information
which
are
supposed
to
be
reflected
in
the
taxpayer's
VAT
returns.
Thus,
an
application
for
tax
refund/credit
must
be
accompanied
by
copies
of
the
taxpayer's
VAT
return/s
for
the
taxable
quarter/s
concerned.
The
CTA
and
the
CA,
based
on
their
appreciation
of
the
evidence
presented,
committed
no
error
when
they
declared
that
petitioner
failed
to
prove
that
it
is
entitled
to
a
tax
refund
and
this
Court,
not
being
a
trier
of
facts,
must
defer
to
their
findings.
Taxation
is
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.
And,
since
taxes
are
what
we
pay
for
civilized
society,
or
are
the
lifeblood
of
the
nation,
the
law
frowns
against
exemptions
from
taxation
and
statutes
granting
tax
exemptions
are
thus
construed
strictissimi
juris
against
the
taxpayer
and
liberally
in
favor
of
the
taxing
authority.
A
claim
of
refund
or
exemption
from
tax
payments
must
be
clearly
shown
and
be
based
on
language
in
the
law
too
plain
to
be
mistaken.
Elsewise
stated,
taxation
is
the
rule,
exemption
therefrom
is
the
exception.
Anent
the
issue
of
prescription,
wherein
petitioner
questions
the
ruling
of
the
CA
that
the
former's
claim
for
refund
has
prescribed,
disregarding
the
failure
of
respondent
Commissioner
of
Internal
Revenue
and
the
CTA
to
raise
the
said
issue
in
their
answer
and
original
decision,
respectively,
this
Court
finds
the
same
moot
and
academic.
Although
it
may
appear
that
the
CTA
only
brought
up
the
issue
of
prescription
in
its
later
resolution
and
not
in
its
original
decision,
its
ruling
on
the
merits
of
the
application
for
refund,
could
only
imply
that
the
issue
of
prescription
was
not
the
main
consideration
for
the
denial
of
petitioner's
claim
for
tax
refund.
Otherwise,
the
CTA
would
have
just
denied
the
application
on
the
ground
of
prescription.
Section
76.
Final
Adjustment
Return.
—
Every
corporation
liable
to
tax
under
Section
27
shall
file
a
final
adjustment
return
covering
the
total
taxable
income
for
the
preceding
calendar
or
fiscal
year.
If
the
sum
of
the
quarterly
tax
payments
made
during
the
said
taxable
year
is
not
equal
to
the
total
tax
due
on
the
entire
taxable
income
of
that
year
the
corporation
shall
either:
36
(C)
Be
credited
or
refunded
with
the
excess
amount
paid,
as
the
case
may
be.
In
case
the
corporation
is
entitled
to
a
refund
of
the
excess
estimated
quarterly
income
taxes
paid,
the
refundable
amount
shown
on
its
final
adjustment
return
may
be
credited
against
the
estimated
quarterly
income
tax
liabilities
for
the
taxable
quarters
of
the
succeeding
taxable
years.
Once
the
option
to
carry-‐over
and
apply
the
excess
quarterly
income
tax
against
income
tax
due
for
the
taxable
quarters
of
the
succeeding
taxable
years
has
been
made,
such
option
shall
be
considered
irrevocable
for
that
taxable
period
and
no
application
for
tax
refund
or
issuance
of
a
tax
credit
certificate
shall
be
allowed
therefor.
The
predecessor
provision
of
Section
76
of
the
NIRC
of
1997
is
Section
79
of
the
NIRC
of
1985,
which
provides:
Section
79.
Final
Adjustment
Return.
—
Every
corporation
liable
to
tax
under
Section
24
shall
file
a
final
adjustment
return
covering
the
total
net
income
for
the
preceding
calendar
or
fiscal
year.
If
the
sum
of
the
quarterly
tax
payments
made
during
the
said
taxable
year
is
not
equal
to
the
total
tax
due
on
the
entire
taxable
net
income
of
that
year
the
corporation
shall
either:
(b) Be refunded the excess amount paid, as the case may be.
In
case
the
corporation
is
entitled
to
a
refund
of
the
excess
estimated
quarterly
income
taxes-‐paid,
the
refundable
amount
shown
on
its
final
adjustment
return
may
be
credited
against
the
estimated
quarterly
income
tax
liabilities
for
the
taxable
quarters
of
the
succeeding
taxable
year.
As
can
be
seen,
Congress
added
a
sentence
to
Section
76
of
the
NIRC
of
1997
in
order
to
lay
down
the
irrevocability
rule,
to
wit:
.
.
.
Once
the
option
to
carry-‐over
and
apply
the
excess
quarterly
income
tax
against
income
tax
due
for
the
taxable
quarters
of
the
succeeding
taxable
years
has
been
made,
such
option
shall
be
considered
irrevocable
for
that
taxable
period
and
no
application
for
tax
refund
or
issuance
of
a
tax
credit
certificate
shall
be
allowed
therefor.
With
the
subsequent
enactment
of
R.A.
No.
9337,
amending
R.A.
No.
8424,
PAGCOR
has
been
excluded
from
the
enumeration
of
GOCCs
that
are
exempt
from
paying
corporate
income
tax.
The
records
of
the
Bicameral
Conference
Meeting
dated
April
18,
2005,
of
the
Committee
on
the
Disagreeing
Provisions
of
Senate
Bill
No.
1950
and
House
Bill
No.
3555,
show
that
it
is
the
legislative
intent
that
PAGCOR
be
subject
to
the
payment
of
corporate
income
tax.
Taxation
is
the
rule
and
exemption
is
the
exception.
The
burden
of
proof
rests
upon
the
party
claiming
exemption
to
prove
that
it
is,
in
fact,
covered
by
the
exemption
so
claimed.
As
a
rule,
tax
exemptions
37
are
construed
strongly
against
the
claimant.
Exemptions
must
be
shown
to
exist
clearly
and
categorically,
and
supported
by
clear
legal
provision.
In
this
case,
PAGCOR
failed
to
prove
that
it
is
still
exempt
from
the
payment
of
corporate
income
tax,
considering
that
Section
1
of
R.A.
No.
9337
amended
Section
27
(c)
of
the
National
Internal
Revenue
Code
of
1997
by
omitting
PAGCOR
from
the
exemption.
The
legislative
intent,
as
shown
by
the
discussions
in
the
Bicameral
Conference
Meeting,
is
to
require
PAGCOR
to
pay
corporate
income
tax;
hence,
the
omission
or
removal
of
PAGCOR
from
exemption
from
the
payment
of
corporate
income
tax.
It
is
a
basic
precept
of
statutory
construction
that
the
express
mention
of
one
person,
thing,
act,
or
consequence
excludes
all
others
as
expressed
in
the
familiar
maxim
expressio
unius
est
exclusio
alterius.
Thus,
the
express
mention
of
the
GOCCs
exempted
from
payment
of
corporate
income
tax
excludes
all
others.
Not
being
excepted,
petitioner
PAGCOR
must
be
regarded
as
coming
within
the
purview
of
the
general
rule
that
GOCCs
shall
pay
corporate
income
tax,
expressed
in
the
maxim:
exceptio
firmat
regulam
in
casibus
non
exceptis.
PAGCOR
cannot
find
support
in
the
equal
protection
clause
of
the
Constitution,
as
the
legislative
records
of
the
Bicameral
Conference
Meeting
dated
October
27,
1997,
of
the
Committee
on
Ways
and
Means,
show
that
PAGCOR's
exemption
from
payment
of
corporate
income
tax,
as
provided
in
Section
27
(c)
of
R.A.
No.
8424,
or
the
National
Internal
Revenue
Code
of
1997,
was
not
made
pursuant
to
a
valid
classification
based
on
substantial
distinctions
and
the
other
requirements
of
a
reasonable
classification
by
legislative
bodies,
so
that
the
law
may
operate
only
on
some,
and
not
all,
without
violating
the
equal
protection
clause.
The
legislative
records
show
that
the
basis
of
the
grant
of
exemption
to
PAGCOR
from
corporate
income
tax
was
PAGCOR's
own
request
to
be
exempted.
A
franchise
partakes
the
nature
of
a
grant
which
is
beyond
the
purview
of
the
non-‐impairment
clause
of
the
Constitution.
Indeed,
Article
XII,
Section
11,
of
the
1987
Constitution,
like
its
precursor
provisions
in
the
1935
and
the
1973
Constitutions,
is
explicit
that
no
franchise
for
the
operation
of
a
public
utility
shall
be
granted
except
under
the
condition
that
such
privilege
shall
be
subject
to
amendment,
alteration
or
repeal
by
Congress
as
and
when
the
common
good
so
requires.
In
this
case,
PAGCOR
was
granted
a
franchise
to
operate
and
maintain
gambling
casinos,
clubs
and
other
recreation
or
amusement
places,
sports,
gaming
pools,
i.e.,
basketball,
football,
lotteries,
etc.,
whether
on
land
or
sea,
within
the
territorial
jurisdiction
of
the
Republic
of
the
Philippines.
Under
Section
11,
Article
XII
of
the
Constitution,
PAGCOR's
franchise
is
subject
to
amendment,
alteration
or
repeal
by
Congress
such
as
the
amendment
under
Section
1
of
R.A.
No.
9377.
Hence,
the
provision
in
Section
1
of
R.A.
No.
9337,
amending
Section
27
(c)
of
R.A.
No.
8424
by
withdrawing
the
exemption
of
PAGCOR
from
corporate
income
tax,
which
may
affect
any
benefits
to
PAGCOR's
transactions
with
private
parties,
is
not
violative
of
the
non-‐impairment
clause
of
the
Constitution.
Anent
the
validity
of
RR
No.
16-‐2005,
the
Court
holds
that
the
provision
subjecting
PAGCOR
to
10%
VAT
is
invalid
for
being
contrary
to
R.A.
No.
9337.
Nowhere
in
R.A.
No.
9337
is
it
provided
that
petitioner
can
be
subjected
to
VAT.
R.A.
No.
9337
is
clear
only
as
to
the
removal
of
petitioner's
exemption
from
the
payment
of
corporate
income
tax,
which
was
already
addressed
above
by
this
Court.
38
It
is
settled
rule
that
in
case
of
discrepancy
between
the
basic
law
and
a
rule
or
regulation
issued
to
implement
said
law,
the
basic
law
prevails,
because
the
said
rule
or
regulation
cannot
go
beyond
the
terms
and
provisions
of
the
basic
law.
RR
No.
16-‐2005,
therefore,
cannot
go
beyond
the
provisions
of
R.A.
No.
9337.
Since
PAGCOR
is
exempt
from
VAT
under
R.A.
No.
9337,
the
BIR
exceeded
its
authority
in
subjecting
PAGCOR
to
10%
VAT
under
RR
No.
16-‐2005;
hence,
the
said
regulatory
provision
is
hereby
nullified.
These
two
options
under
Section
76
of
the
Tax
Code
are
alternative
in
nature.
The
choice
of
one
precludes
the
other.
Indeed,
in
Philippine
Bank
of
Communications
v.
Commissioner
of
Internal
Revenue,
the
Court
ruled
that
a
corporation
must
signify
its
intention
—
whether
to
request
a
tax
refund
or
claim
a
tax
credit
—
by
marking
the
corresponding
option
box
provided
in
the
FAR.
While
a
taxpayer
is
required
to
mark
its
choice
in
the
form
provided
by
the
BIR,
this
requirement
is
only
for
the
purpose
of
facilitating
tax
collection.
One cannot get a tax refund and a tax credit at the same time for the same excess income taxes paid. .
The
amount
being
claimed
as
a
refund
would
remain
in
the
account
of
the
taxpayer
until
utilized
in
succeeding
taxable
years,
as
provided
in
Section
76
of
the
NIRC
of
1997.
It
is
worthy
to
note
that
unlike
the
option
for
refund
of
excess
income
tax,
which
prescribes
after
two
years
from
the
filing
of
the
FAR,
there
is
no
prescriptive
period
for
the
carrying
over
of
the
same.
Therefore,
the
excess
income
tax
credit
of
BPI,
which
it
acquired
in
1998
and
opted
to
carry
over,
may
be
repeatedly
carried
over
to
succeeding
taxable
years,
i.e.,
to
1999,
2000,
2001,
and
so
on
and
so
forth,
until
actually
applied
or
credited
to
a
tax
liability
of
BPI.
The Court agrees with the conclusion of the CTA En Banc:
Contrary
to
petitioner
CIR's
contention,
the
fact
of
withholding
was
likewise
established
through
respondent's
presentation
of
the
Certificates
of
Creditable
Tax
Withheld
At
Source,
duly
issued
to
it
by
Southern
Energy
Pangasinan,
Inc.
and
Southern
Energy
Quezon,
Inc.,
for
the
year
2000.
These
certificates
were
found
by
the
duly
commissioned
independent
CPA
to
be
faithful
reproductions
of
the
original
copies,
as
per
his
Supplementary
Report
dated
March
24,
2003.
As
to
petitioner
CIR's
contention
that
the
Report
of
the
independent
CPA
dated
February
21,
2003
shows
several
discrepancies,
We
sustain
the
findings
of
the
First
Division.
On
direct
examination,
Mr.
Ruben
Rubio,
the
duly
commissioned
independent
CPA,
testified
and
explained
that
the
discrepancy
was
merely
brought
about
by:
(1)
the
difference
in
foreign
exchange
(forex)
rates
at
the
time
the
certificates
were
recorded
by
respondent
Mirant
and
the
forex
rates
used
at
the
time
the
certificates
were
issued
by
its
customers;
and
(2)
the
timing
difference
between
the
point
when
respondent
Mirant
recognized
or
accrued
its
income
and
the
time
when
the
corresponding
creditable
tax
was
withheld
by
its
customers.
.
39
…
Two
types
of
input
VAT
credits:
One
is
a
credit/refund
of
input
VAT
attributable
to
zero-‐rated
sales
under
Section
112
(A)
of
the
NIRC,
and
the
other
is
a
credit/refund
of
input
VAT
on
capital
goods
pursuant
to
Section
112
(B)
of
the
same
Code.
It
has
been
settled
in
Intel
Technology
Philippines,
Inc.
v.
Commissioner
of
Internal
Revenue
that
the
Authority
To
Print
(ATP)
need
not
be
reflected
or
indicated
in
the
invoices
or
receipts
because
there
is
no
law
or
regulation
requiring
it.
Thus,
in
the
absence
of
such
law
or
regulation,
failure
to
print
the
ATP
on
the
invoices
or
receipts
should
not
result
in
the
outright
denial
of
a
claim
or
the
invalidation
of
the
invoices
or
receipts
for
purposes
of
claiming
a
refund.
Under
Section
112
(A)
of
the
NIRC,
a
claimant
must
be
engaged
in
sales
which
are
zero-‐rated
or
effectively
zero-‐rated.
To
prove
this,
duly
registered
invoices
or
receipts
evidencing
zero-‐rated
sales
must
be
presented.
However,
since
the
ATP
is
not
indicated
in
the
invoices
or
receipts,
the
only
way
to
verify
whether
the
invoices
or
receipts
are
duly
registered
is
by
requiring
the
claimant
to
present
its
ATP
from
the
BIR.
Without
this
proof,
the
invoices
or
receipts
would
have
no
probative
value
for
the
purpose
of
refund.
All
told,
the
non-‐presentation
of
the
ATP
and
the
failure
to
indicate
the
word
"zero-‐rated"
in
the
invoices
or
receipts
are
fatal
to
a
claim
for
credit/refund
of
input
VAT
on
zero-‐rated
sales.
The
failure
to
indicate
the
ATP
in
the
sales
invoices
or
receipts,
on
the
other
hand,
is
not.
In
this
case,
petitioner
failed
to
present
its
ATP
and
to
print
the
word
"zero-‐rated"
on
its
export
sales
invoices.
Thus,
we
find
no
error
on
the
part
of
the
CTA
in
denying
outright
petitioner's
claim
for
credit/refund
of
input
VAT
attributable
to
its
zero-‐rated
sales.
"Capital
goods
or
properties"
refer
to
goods
or
properties
with
estimated
useful
life
greater
than
one
year
and
which
are
treated
as
depreciable
assets
under
Section
29
(f),
used
directly
or
indirectly
in
the
production
or
sale
of
taxable
goods
or
services.
Based
on
the
foregoing
definition,
we
find
no
reason
to
deviate
from
the
findings
of
the
CTA
that
training
materials,
office
supplies,
posters,
banners,
T-‐shirts,
books,
and
the
other
similar
items
reflected
in
petitioner's
Summary
of
Importation
of
Goods
are
not
capital
goods.
40
income
is
not
reflective
of
that
which
it
would
have
realized
had
it
been
dealing
at
arm's
length
with
an
uncontrolled
taxpayer,
the
CIR
can
make
the
necessary
rectifications
in
order
to
prevent
evasion
of
taxes.
Despite
the
broad
parameters
provided,
however,
we
find
that
the
CIR's
powers
of
distribution,
apportionment
or
allocation
of
gross
income
and
deductions
under
Section
43
of
the
1993
NIRC
(Now
Section
50
of
RA
8424)
and
Section
179
of
Revenue
Regulations
No.
2
does
not
include
the
power
to
impute
"theoretical
interests"
to
the
controlled
taxpayer's
transactions.
Pursuant
to
Section
28
of
the
1993
NIRC
(Now
Section
32
of
RA
8424),
after
all,
the
term
"gross
income"
is
understood
to
mean
all
income
from
whatever
source
derived,
including,
but
not
limited
to
the
following
items:
compensation
for
services,
including
fees,
commissions,
and
similar
items;
gross
income
derived
from
business;
gains
derived
from
dealings
in
property;"
interest;
rents;
royalties;
dividends;
annuities;
prizes
and
winnings;
pensions;
and
partner's
distributive
share
of
the
gross
income
of
general
professional
partnership.
While
it
has
been
held
that
the
phrase
"from
whatever
source
derived"
indicates
a
legislative
policy
to
include
all
income
not
expressly
exempted
within
the
class
of
taxable
income
under
our
laws,
the
term
"income"
has
been
variously
interpreted
to
mean
"cash
received
or
its
equivalent",
"the
amount
of
money
coming
to
a
person
within
a
specific
time"
or
"something
distinct
from
principal
or
capital."
Otherwise
stated,
there
must
be
proof
of
the
actual
or,
at
the
very
least,
probable
receipt
or
realization
by
the
controlled
taxpayer
of
the
item
of
gross
income
sought
to
be
distributed,
apportioned
or
allocated
by
the
CIR.
The
paucity
of
merit
in
the
CIR's
position
is,
however,
evident
from
the
categorical
language
of
Section
34
(c)
(2)
of
the
1993
NIRC
which
provides
that
gain
or
loss
will
not
be
recognized
in
case
the
exchange
of
property
for
stocks
results
in
the
control
of
the
transferee
by
the
transferor,
alone
or
with
other
transferors
not
exceeding
four
persons.
..Since
the
term
"control"
is
clearly
defined
as
"ownership
of
stocks
in
a
corporation
possessing
at
least
fifty-‐one
percent
of
the
total
voting
power
of
classes
of
stocks
entitled
to
one
vote"
under
Section
34
(c)
(6)
[c]
of
the
1993
NIRC,
the
exchange
of
property
for
stocks
between
FDC
FAI
and
FLI
clearly
qualify
as
a
tax-‐free
transaction
under
paragraph
34
(c)
(2)
of
the
same
provision.
Against
the
clear
tenor
of
Section
34
(c)
(2)
of
the
1993
NIRC,
the
CIR
cites
then
Supreme
Court
Justice
Jose
Vitug
and
CTA
Justice
Ernesto
D.
Acosta
who,
in
their
book
Tax
Law
and
Jurisprudence,
opined
that
said
provision
could
be
inapplicable
if
control
is
already
vested
in
the
exchangor
prior
to
exchange.
Aside
from
the
fact
that
that
the
10
September
2002
Decision
in
CTA
Case
No.
6182
upholding
the
tax-‐
exempt
status
of
the
exchange
between
FDC,
FAI
and
FLI
was
penned
by
no
less
than
Justice
Acosta
himself,
FDC
and
FAI
significantly
point
out
that
said
authors
have
acknowledged
that
the
position
taken
by
the
BIR
is
to
the
effect
that
"the
law
would
apply
even
when
the
exchangor
already
has
control
of
the
corporation
at
the
time
of
the
exchange."
Inasmuch
as
the
combined
ownership
of
FDC
and
FAI
of
FLI's
outstanding
capital
stock
adds
up
to
a
total
of
70.99%,
it
stands
to
reason
that
neither
of
said
transferors
can
be
held
liable
for
deficiency
income
taxes
the
CIR
assessed
on
the
supposed
gain
which
resulted
from
the
subject
transfer.
41
Applying
the
aforesaid
provisions
to
the
case
at
bench,
we
find
that
the
instructional
letters
as
well
as
the
journal
and
cash
vouchers
evidencing
the
advances
FDC
extended
to
its
affiliates
in
1996
and
1997
qualified
as
loan
agreements
upon
which
documentary
stamp
taxes
may
be
imposed.
In
keeping
with
the
caveat
attendant
to
every
BIR
Ruling
to
the
effect
that
it
is
valid
only
if
the
facts
claimed
by
the
taxpayer
are
correct,
we
find
that
the
CA
reversibly
erred
in
utilizing
BIR
Ruling
No.
116-‐98,
dated
30
July
1998
which,
strictly
speaking,
could
be
invoked
only
by
ASB
Development
Corporation,
the
taxpayer
who
sought
the
same.
In
its
appeal
before
the
CA,
the
CIR
argued
that
the
foregoing
ruling
was
later
modified
in
BIR
Ruling
No.
108-‐99
dated
15
July
1999,
which
opined
that
inter-‐office
memos
evidencing
lendings
or
borrowings
extended
by
a
corporation
to
its
affiliates
are
akin
to
promissory
notes,
hence,
subject
to
documentary
stamp
taxes.
In
brushing
aside
the
foregoing
argument,
however,
the
CA
applied
Section
246
of
the
1993
NIRC
from
which
proceeds
the
settled
principle
that
rulings,
circulars,
rules
and
regulations
promulgated
by
the
BIR
have
no
retroactive
application
if
to
so
apply
them
would
be
prejudicial
to
the
taxpayers.
Admittedly,
this
rule
does
not
apply:
(a)
where
the
taxpayer
deliberately
misstates
or
omits
material
facts
from
his
return
or
in
any
document
required
of
him
by
the
Bureau
of
Internal
Revenue;
(b)
where
the
facts
subsequently
gathered
by
the
Bureau
of
Internal
Revenue
are
materially
different
from
the
facts
on
which
the
ruling
is
based;
or
(c)
where
the
taxpayer
acted
in
bad
faith.
Not
being
the
taxpayer
who,
in
the
first
instance,
sought
a
ruling
from
the
CIR,
however,
FDC
cannot
invoke
the
foregoing
principle
on
non-‐retroactivity
of
BIR
rulings.
Viewed
in
the
light
of
the
foregoing
considerations,
we
find
that
both
the
CTA
and
the
CA
erred
in
invalidating
the
assessments
issued
by
the
CIR
for
the
deficiency
documentary
stamp
taxes
due
on
the
instructional
letters
as
well
as
the
journal
and
cash
vouchers
evidencing
the
advances
FDC
extended
to
its
affiliates
in
1996
and
1997.
26.) DIAZ
VS.
SECRETARY
OF
FINANCE
In
sum,
fees
paid
by
the
public
to
tollway
operators
for
use
of
the
tollways,
are
not
taxes
in
any
sense.
A
tax
is
imposed
under
the
taxing
power
of
the
government
principally
for
the
purpose
of
raising
revenues
to
fund
public
expenditures.
Toll
fees,
on
the
other
hand,
are
collected
by
private
tollway
operators
as
reimbursement
for
the
costs
and
expenses
incurred
in
the
construction,
maintenance
and
operation
of
the
tollways,
as
well
as
to
assure
them
a
reasonable
margin
of
income.
Although
toll
fees
are
charged
for
the
use
of
public
facilities,
therefore,
they
are
not
government
exactions
that
can
be
properly
treated
as
a
tax.
Taxes
may
be
imposed
only
by
the
government
under
its
sovereign
authority,
toll
fees
may
be
demanded
by
either
the
government
or
private
individuals
or
entities,
as
an
attribute
of
ownership.
Parenthetically,
VAT
on
tollway
operations
cannot
be
deemed
a
tax
on
tax
due
to
the
nature
of
VAT
as
an
indirect
tax.
In
indirect
taxation,
a
distinction
is
made
between
the
liability
for
the
tax
and
burden
of
the
tax.
The
seller
who
is
liable
for
the
VAT
may
shift
or
pass
on
the
amount
of
VAT
it
paid
on
goods,
42
properties
or
services
to
the
buyer.
In
such
a
case,
what
is
transferred
is
not
the
seller's
liability
but
merely
the
burden
of
the
VAT.
Thus,
the
seller
remains
directly
and
legally
liable
for
payment
of
the
VAT,
but
the
buyer
bears
its
burden
since
the
amount
of
VAT
paid
by
the
former
is
added
to
the
selling
price.
Once
shifted,
the
VAT
ceases
to
be
a
tax
and
simply
becomes
part
of
the
cost
that
the
buyer
must
pay
in
order
to
purchase
the
good,
property
or
service.
Consequently,
VAT
on
tollway
operations
is
not
really
a
tax
on
the
tollway
user,
but
on
the
tollway
operator.
Under
Section
105
of
the
Code,
VAT
is
imposed
on
any
person
who,
in
the
course
of
trade
or
business,
sells
or
renders
services
for
a
fee.
In
other
words,
the
seller
of
services,
who
in
this
case
is
the
tollway
operator,
is
the
person
liable
for
VAT.
The
latter
merely
shifts
the
burden
of
VAT
to
the
tollway
user
as
part
of
the
toll
fees.
For
this
reason,
VAT
on
tollway
operations
cannot
be
a
tax
on
tax
even
if
toll
fees
were
deemed
as
a
"user's
tax."
VAT
is
assessed
against
the
tollway
operator's
gross
receipts
and
not
necessarily
on
the
toll
fees.
Although
the
tollway
operator
may
shift
the
VAT
burden
to
the
tollway
user,
it
will
not
make
the
latter
directly
liable
for
the
VAT.
The
shifted
VAT
burden
simply
becomes
part
of
the
toll
fees
that
one
has
to
pay
in
order
to
use
the
tollways.
Petitioner
has
no
personality
to
invoke
the
non-‐impairment
of
contract
clause
on
behalf
of
private
investors
in
the
tollway
projects.
She
will
neither
be
prejudiced
by
nor
be
affected
by
the
alleged
diminution
in
return
of
investments
that
may
result
from
the
VAT
imposition.
She
has
no
interest
at
all
in
the
profits
to
be
earned
under
the
TOAs.
The
interest
in
and
right
to
recover
investments
solely
belongs
to
the
private
tollway
investors.
Besides,
her
allegation
that
the
private
investors'
rate
of
recovery
will
be
adversely
affected
by
imposing
VAT
on
tollway
operations
is
purely
speculative.
Equally
presumptuous
is
her
assertion
that
a
stipulation
in
the
TOAs
known
as
the
Material
Adverse
Grantor
Action
will
be
activated
if
VAT
is
thus
imposed.
The
Court
cannot
rule
on
matters
that
are
manifestly
conjectural.
Neither
can
it
prohibit
the
State
from
exercising
its
sovereign
taxing
power
based
on
uncertain,
prophetic
grounds.
Administrative
feasibility
is
one
of
the
canons
of
a
sound
tax
system.
It
simply
means
that
the
tax
system
should
be
capable
of
being
effectively
administered
and
enforced
with
the
least
inconvenience
to
the
taxpayer.
Non-‐observance
of
the
canon,
however,
will
not
render
a
tax
imposition
invalid
"except
to
the
extent
that
specific
constitutional
or
statutory
limitations
are
impaired."
34
Thus,
even
if
the
imposition
of
VAT
on
tollway
operations
may
seem
burdensome
to
implement,
it
is
not
necessarily
invalid
unless
some
aspect
of
it
is
shown
to
violate
any
law
or
the
Constitution.
27.) PRUDENTIAL
BANK
VS.
CIR
Petitioner's
Savings
Account
Plus
is
subject
to
Documentary
Stamp
Tax.
43
A
certificate
of
deposit
is
defined
as
"a
written
acknowledgment
by
a
bank
or
banker
of
the
receipt
of
a
sum
of
money
on
deposit
which
the
bank
or
banker
promises
to
pay
to
the
depositor,
to
the
order
of
the
depositor,
or
to
some
other
person
or
his
order,
whereby
the
relation
of
debtor
and
creditor
between
the
bank
and
the
depositor
is
created."
28.) CITY
OF
PASIG
VS.
REPUBLIC
OF
THE
PHILIPPINES
In
the
present
case,
the
parcels
of
land
are
not
properties
of
public
dominion
because
they
are
not
"intended
for
public
use,
such
as
roads,
canals,
rivers,
torrents,
ports
and
bridges
constructed
by
the
State,
banks,
shores,
roadsteads."
Neither
are
they
"intended
for
some
public
service
or
for
the
development
of
the
national
wealth."
MPLDC
leases
portions
of
the
properties
to
different
business
establishments.
Thus,
the
portions
of
the
properties
leased
to
taxable
entities
are
not
only
subject
to
real
estate
tax,
they
can
also
be
sold
at
public
auction
to
satisfy
the
tax
delinquency.
In
sum,
only
those
portions
of
the
properties
leased
to
taxable
entities
are
subject
to
real
estate
tax
for
the
period
of
such
leases.
Pasig
City
must,
therefore,
issue
to
respondent
new
real
property
tax
assessments
covering
the
portions
of
the
properties
leased
to
taxable
entities.
If
the
Republic
of
the
Philippines
fails
to
pay
the
real
property
tax
on
the
portions
of
the
properties
leased
to
taxable
entities,
then
such
portions
may
be
sold
at
public
auction
to
satisfy
the
tax
delinquency.
29.) RIZAL
COMMERCIAL
BANKING
CORPORATION
VS.
CIR
Under
Article
1431
of
the
Civil
Code,
the
doctrine
of
estoppel
is
anchored
on
the
rule
that
"an
admission
or
representation
is
rendered
conclusive
upon
the
person
making
it,
and
cannot
be
denied
or
disproved
as
against
the
person
relying
thereon."
A
party
is
precluded
from
denying
his
own
acts,
admissions
or
representations
to
the
prejudice
of
the
other
party
in
order
to
prevent
fraud
and
falsehood.
Estoppel
is
clearly
applicable
to
the
case
at
bench.
RCBC,
through
its
partial
payment
of
the
revised
assessments
issued
within
the
extended
period
as
provided
for
in
the
questioned
waivers,
impliedly
admitted
the
validity
of
those
waivers.
Had
petitioner
truly
believed
that
the
waivers
were
invalid
and
that
the
assessments
were
issued
beyond
the
prescriptive
period,
then
it
should
not
have
paid
the
reduced
amount
of
taxes
in
the
revised
assessment.
RCBC's
subsequent
action
effectively
belies
its
insistence
that
the
waivers
are
invalid.
The
records
show
that
on
December
6,
2000,
upon
receipt
of
the
revised
assessment,
RCBC
immediately
made
payment
on
the
uncontested
taxes.
Thus,
RCBC
is
estopped
from
questioning
the
validity
of
the
waivers.
To
hold
otherwise
and
allow
a
party
to
gainsay
its
own
act
or
deny
rights
which
it
had
previously
recognized
would
run
counter
to
the
principle
of
equity
which
this
institution
holds
dear.
44
In
Chamber
of
Real
Estate
and
Builders'
Associations,
Inc.
v.
The
Executive
Secretary,
the
Court
has
explained
that
the
purpose
of
the
withholding
tax
system
is
three-‐fold:
(1)
to
provide
the
taxpayer
with
a
convenient
way
of
paying
his
tax
liability;
(2)
to
ensure
the
collection
of
tax,
and
(3)
to
improve
the
government's
cashflow.
Under
the
withholding
tax
system,
the
payor
is
the
taxpayer
upon
whom
the
tax
is
imposed,
while
the
withholding
agent
simply
acts
as
an
agent
or
a
collector
of
the
government
to
ensure
the
collection
of
taxes.
It
is,
therefore,
indisputable
that
the
withholding
agent
is
merely
a
tax
collector
and
not
a
taxpayer.
Based
on
the
foregoing,
the
liability
of
the
withholding
agent
is
independent
from
that
of
the
taxpayer.
The
former
cannot
be
made
liable
for
the
tax
due
because
it
is
the
latter
who
earned
the
income
subject
to
withholding
tax.
The
withholding
agent
is
liable
only
insofar
as
he
failed
to
perform
his
duty
to
withhold
the
tax
and
remit
the
same
to
the
government.
The
liability
for
the
tax,
however,
remains
with
the
taxpayer
because
the
gain
was
realized
and
received
by
him.
While
the
payor-‐borrower
can
be
held
accountable
for
its
negligence
in
performing
its
duty
to
withhold
the
amount
of
tax
due
on
the
transaction,
RCBC,
as
the
taxpayer
and
the
one
which
earned
income
on
the
transaction,
remains
liable
for
the
payment
of
tax
as
the
taxpayer
shares
the
responsibility
of
making
certain
that
the
tax
is
properly
withheld
by
the
withholding
agent,
so
as
to
avoid
any
penalty
that
may
arise
from
the
non-‐payment
of
the
withholding
tax
due.
RCBC
cannot
evade
its
liability
for
FCDU
Onshore
Tax
by
shifting
the
blame
on
the
payor-‐borrower
as
the
withholding
agent.
As
such,
it
is
liable
for
payment
of
deficiency
onshore
tax
on
interest
income
derived
from
foreign
currency
loans,
pursuant
to
the
Tax
Code.
30.) COMMISSIONER
OF
INTERNAL
REVENUE
VS.
FORTUNE
TOBACCO
CORPORATION
The
omission
in
the
law
in
fact
reveals
the
legislative
intent
not
to
adopt
the
"higher
tax
rule."
The
CIR
claims
that
the
proviso
in
Section
1
of
RR
17-‐99
was
patterned
after
the
third
paragraph
of
Section
145
(c)
of
the
1997
Tax
Code.
Since
the
law's
intent
was
to
increase
revenue,
it
found
no
reason
not
to
apply
the
same
"higher
tax
rule"
to
excise
taxes
due
after
the
transition
period
despite
the
absence
of
a
similar
text
in
the
wording
of
Section
145
(c).
What
the
CIR
misses
in
his
argument
is
that
he
applied
the
rule
not
only
for
cigarettes,
but
also
for
cigars,
distilled
spirits,
wines
and
fermented
liquors:
“Provided,
however,
that
the
new
specific
tax
rate
for
any
existing
brand
of
cigars
[and]
cigarettes
packed
by
machine,
distilled
spirits,
wines
and
fermented
liquors
shall
not
be
lower
than
the
excise
tax
that
is
actually
being
paid
prior
to
January
1,
2000.”
When
the
pertinent
provisions
of
the
1997
Tax
Code
imposing
excise
taxes
on
these
products
are
read,
however,
there
is
nothing
similar
to
the
third
paragraph
of
Section
145
(c)
that
can
be
found
in
the
45
provisions
imposing
excise
taxes
on
distilled
spirits
(Section
141)
and
wines
(Section
142).
In
fact,
the
rule
will
also
not
apply
to
cigars
as
these
products
fall
under
Section
145
(a).
Evidently,
the
1997
Tax
Code's
provisions
on
excise
taxes
have
omitted
the
adoption
of
certain
tax
measures.
To
our
mind,
these
omissions
are
telling
indications
of
the
intent
of
Congress
not
to
adopt
the
omitted
tax
measures;
they
are
not
simply
unintended
lapses
in
the
law's
wording
that,
as
the
CIR
claims,
are
nevertheless
covered
by
the
spirit
of
the
law.
Had
the
intention
of
Congress
been
solely
to
increase
revenue
collection,
a
provision
similar
to
the
third
paragraph
of
Section
145
(c)
would
have
been
incorporated
in
Sections
141
and
142
of
the
1997
Tax
Code.
This,
however,
is
not
the
case.
We
note
that
Congress
was
not
unaware
that
the
"higher
tax
rule"
is
a
proviso
that
should
ideally
apply
to
the
increase
after
the
transition
period
(as
the
CIR
embodied
in
the
proviso
in
Section
1
of
RR
17-‐99).
During
the
deliberations
for
the
law
amending
Section
145
of
the
1997
Tax
Code
(RA
9334),
Rep.
Jesli
Lapuz
adverted
to
the
"higher
tax
rule"
after
December
31,
1999
when
he
stated:
“This
bill
serves
as
a
catch-‐up
measure
as
government
attempts
to
collect
additional
revenues
due
it
since
2001.
Modifications
are
necessary
indeed
to
capture
the
loss
proceeds
and
prevent
further
erosion
in
revenue
base.
.
.
.
.
As
it
is,
it
plugs
a
major
loophole
in
the
ambiguity
of
the
law
as
evidenced
by
recent
disputes
resulting
in
the
government
being
ordered
by
the
courts
to
refund
taxpayers.
This
bill
clarifies
that
the
excise
tax
due
on
the
products
shall
not
be
lower
than
the
tax
due
as
of
the
date
immediately
prior
to
the
effectivity
of
the
act
or
the
excise
tax
due
as
of
December
31,
1999.”
This
remark
notwithstanding,
the
final
version
of
the
bill
that
became
RA
9334
contained
no
provision
similar
to
the
proviso
in
Section
1
of
RR
17-‐99
that
imposed
the
tax
due
as
of
December
31,
1999
if
this
tax
is
higher
than
the
new
specific
tax
rates.
Thus,
it
appears
that
despite
its
awareness
of
the
need
to
protect
the
increase
of
excise
taxes
to
increase
government
revenue,
Congress
ultimately
decided
against
adopting
the
"higher
tax
rule".
(Note:
The
claim
for
refund
by
the
Petitioner
was
granted)
31.) COMMISSIONER
OF
INTERNAL
REVENUE
VS.
SAN
MIGUEL
CORPORATION
It
bears
reiterating
that
tax
burdens
are
not
to
be
imposed,
nor
presumed
to
be
imposed
beyond
what
the
statute
expressly
and
clearly
imports,
tax
statutes
being
construed
strictissimi
juris
against
the
government.
In
case
of
discrepancy
between
the
basic
law
and
a
rule
or
regulation
issued
to
implement
said
law,
the
basic
law
prevails
as
said
rule
or
regulation
cannot
go
beyond
the
terms
and
provisions
of
the
basic
law.
It
must
be
stressed
that
the
objective
of
issuing
BIR
Revenue
Regulations
is
to
establish
parameters
or
guidelines
within
which
our
tax
laws
should
be
implemented,
and
not
to
amend
or
modify
its
substantive
meaning
and
import.
32.) LVM
CONSTRUCTION
CORPORATION
VS.
F.T.
SANCHAEZ/SOKOR/KIMWA
(JOINT
VENTURE)
46
In
the
absence
of
any
stipulation
regarding
the
Joint
Venture's
sharing
in
the
VAT
deducted
and
withheld
by
the
DPWH
from
its
payment
on
the
main
contract,
the
CIAC
and
the
CA
correctly
ruled
that
LVM
has
no
basis
in
offsetting
the
amounts
of
said
tax
from
the
retention
still
in
its
possession.
VAT
is
a
uniform
tax
levied
on
every
importation
of
goods,
whether
or
not
in
the
course
of
trade
or
business,
or
imposed
on
each
sale,
barter,
exchange
or
lease
of
goods
or
properties
or
on
each
rendition
of
services
in
the
course
of
trade
or
business.
It
is
a
tax
on
transactions,
imposed
at
every
stage
of
the
distribution
process
on
the
sale,
barter,
exchange
of
goods
or
property,
and
on
the
performance
of
services,
even
in
the
absence
of
profit
attributable
thereto.
As
an
indirect
tax
that
may
be
shifted
or
passed
on
to
the
buyer,
transferee
or
lessee
of
the
goods,
properties
or
services,
VAT
should
be
understood
not
in
the
context
of
the
person
or
entity
that
is
primarily,
directly
and
legally
liable
for
its
payment,
but
in
terms
of
its
nature
as
a
tax
on
consumption.
Neither
do
we
find
merit
in
LVM's
harping
over
the
lack
of
showing
in
the
record
that
the
Joint
Venture
has
actually
paid
its
liability
for
VAT.
For
this
purpose,
LVM
insists
that
the
Official
Receipts
for
its
payments
on
the
Joint
Venture's
billing
were
issued
by
respondent
F.
Sanchez
Construction
and
that
the
Monthly
VAT
Declarations
were,
in
fact,
filed
by
Fortunato
Sanchez,
Sr.
However,
the
evidence
on
record
is
to
the
effect
that,
failing
to
register
with
the
Securities
and
Exchange
Commission
(SEC)
and
to
obtain
a
Mayor's
Permit
and
authorization
from
the
BIR
to
print
its
official
receipts,
the
Joint
Venture
apprised
LVM
of
its
intention
to
use
respondent
F.
Sanchez
Construction's
BIR-‐registered
receipts.
Aside
from
being
indicative
of
its
knowledge
of
the
foregoing
circumstances,
LVM's
previous
unqualified
acceptance
of
said
official
receipts
should,
clearly,
bar
the
belated
exceptions
it
now
takes
with
respect
thereto.
A
party,
having
performed
affirmative
acts
upon
which
another
person
based
his
subsequent
actions,
cannot
thereafter
refute
his
acts
or
renege
on
the
effects
of
the
same,
to
the
prejudice
of
the
latter.
To
recapitulate,
LVM,
as
Contractor
for
the
Project,
was
liable
for
the
8.5%
VAT
which
was
withheld
by
the
DPWH
from
its
payments,
pursuant
to
Section
114
(C)
of
the
NIRC.
Absent
any
agreement
to
that
effect,
LVM
cannot
deduct
the
amounts
thus
withheld
from
the
sums
it
still
owed
the
Joint
Venture
which,
as
Sub-‐Contractor
of
30%
of
the
Project,
had
its
own
liability
for
10%
VAT
insofar
as
the
sums
paid
for
the
sub-‐contracted
works
were
concerned.
Although
the
burden
to
pay
an
indirect
tax
like
VAT
can,
admittedly,
be
passed
on
to
the
purchaser
of
the
goods
or
services,
it
bears
emphasizing
that
the
liability
to
pay
the
same
remains
with
the
manufacturer
or
seller
like
LVM
and
the
Joint
Venture.
In
the
same
manner
that
LVM
is
liable
for
the
VAT
due
on
the
payments
made
by
the
DPWH
pursuant
to
the
contract
on
the
Project,
the
Joint
Venture
is,
consequently,
liable
for
the
VAT
due
on
the
payments
made
by
LVM
pursuant
to
the
parties'
Sub-‐Contract.
33.) COMMISSIONER
OF
INTERNAL
REVENUE
VS.
GONZALEZ,
ET
AL.
For
the
crime
of
tax
evasion
in
particular,
compliance
by
the
taxpayer
with
such
subpoena,
if
any
had
been
issued,
is
irrelevant.
As
we
held
in
Ungab
v.
Cusi,
Jr.,
"[t]he
crime
is
complete
when
the
[taxpayer]
has
.
.
.
knowingly
and
willfully
filed
[a]
fraudulent
[return]
with
intent
to
evade
and
defeat
.
.
.
the
tax."
47
Private
respondents'
assertions
regarding
the
qualifications
of
the
"informer"
of
the
Bureau
deserve
scant
consideration.
We
have
held
that
the
lack
of
consent
of
the
taxpayer
under
investigation
does
not
imply
that
the
BIR
obtained
the
information
from
third
parties
illegally
or
that
the
information
received
is
false
or
malicious.
Nor
does
the
lack
of
consent
preclude
the
BIR
from
assessing
deficiency
taxes
on
the
taxpayer
based
on
the
documents.
In
the
same
vein,
herein
private
respondents
cannot
be
allowed
to
escape
criminal
prosecution
under
Sections
254
and
255
of
the
NIRC
by
mere
imputation
of
a
"fictitious"
or
disqualified
informant
under
Section
282
simply
because
other
than
disclosure
of
the
official
registry
number
of
the
third
party
"informer,"
the
Bureau
insisted
on
maintaining
the
confidentiality
of
the
identity
and
personal
circumstances
of
said
"informer."
Tax
amnesty
is
a
general
pardon
to
taxpayers
who
want
to
start
a
clean
tax
slate.
It
also
gives
the
government
a
chance
to
collect
uncollected
tax
from
tax
evaders
without
having
to
go
through
the
tedious
process
of
a
tax
case.
Even
assuming
arguendo
that
the
issuance
of
RR
No.
2-‐99
is
in
the
nature
of
tax
amnesty,
it
bears
noting
that
a
tax
amnesty,
much
like
a
tax
exemption,
is
never
favored
nor
presumed
in
law
and
if
granted
by
statute,
the
terms
of
the
amnesty
like
that
of
a
tax
exemption
must
be
construed
strictly
against
the
taxpayer
and
liberally
in
favor
of
the
taxing
authority.
34.) ALLIED
BANKING
CORPORATION
VS.
CIR
The
Commissioner
of
Internal
Revenue
(CIR)
as
well
as
his
duly
authorized
representative
must
indicate
clearly
and
unequivocally
to
the
taxpayer
whether
an
action
constitutes
a
final
determination
on
a
disputed
assessment.
Words
must
be
carefully
chosen
in
order
to
avoid
any
confusion
that
could
adversely
affect
the
rights
and
interest
of
the
taxpayer.
Section
7
of
RA
9282
expressly
provides
that
the
CTA
exercises
exclusive
appellate
jurisdiction
to
review
by
appeal
decisions
of
the
CIR
in
cases
involving
disputed
assessments.
The
word
"decisions"
in
the
above
quoted
provision
of
RA
9282
has
been
interpreted
to
mean
the
decisions
of
the
CIR
on
the
protest
of
the
taxpayer
against
the
assessments.
Corollary
thereto,
Section
228
of
the
National
Internal
Revenue
Code
(NIRC)
provides
for
the
procedure
for
protesting
an
assessment.
Moreover,
we
cannot
ignore
the
fact
that
in
the
Formal
Letter
of
Demand
with
Assessment
Notices,
respondent
used
the
word
"appeal"
instead
of
"protest",
"reinvestigation",
or
"reconsideration".
Although
there
was
no
direct
reference
for
petitioner
to
bring
the
matter
directly
to
the
CTA,
it
cannot
be
denied
that
the
word
"appeal"
under
prevailing
tax
laws
refers
to
the
filing
of
a
Petition
for
Review
with
the
CTA.
As
aptly
pointed
out
by
petitioner,
under
Section
228
of
the
NIRC,
the
terms
"protest",
"reinvestigation"
and
"reconsideration"
refer
to
the
administrative
remedies
a
taxpayer
may
take
before
the
CIR,
while
the
term
"appeal"
refers
to
the
remedy
available
to
the
taxpayer
before
the
CTA.
Section
9
of
RA
9282,
amending
Section
11
of
RA
1125,
27
likewise
uses
the
term
"appeal"
when
48
referring
to
the
action
a
taxpayer
must
take
when
adversely
affected
by
a
decision,
ruling,
or
inaction
of
the
CIR.
As
we
see
it
then,
petitioner
in
appealing
the
Formal
Letter
of
Demand
with
Assessment
Notices
to
the
CTA
merely
took
the
cue
from
respondent.
Besides,
any
doubt
in
the
interpretation
or
use
of
the
word
"appeal"
in
the
Formal
Letter
of
Demand
with
Assessment
Notices
should
be
resolved
in
favor
of
petitioner,
and
not
the
respondent
who
caused
the
confusion.
To
be
clear,
we
are
not
disregarding
the
rules
of
procedure
under
Section
228
of
the
NIRC,
as
implemented
by
Section
3
of
BIR
Revenue
Regulations
No.
12-‐99.
It
is
the
Formal
Letter
of
Demand
and
Assessment
Notice
that
must
be
administratively
protested
or
disputed
within
30
days,
and
not
the
PAN.
Neither
are
we
deviating
from
our
pronouncement
in
St.
Stephen's
Chinese
Girl's
School
v.
Collector
of
Internal
Revenue,
that
the
counting
of
the
30
days
within
which
to
institute
an
appeal
in
the
CTA
commences
from
the
date
of
receipt
of
the
decision
of
the
CIR
on
the
disputed
assessment,
not
from
the
date
the
assessment
was
issued.
What
we
are
saying
in
this
particular
case
is
that,
the
Formal
Letter
of
Demand
with
Assessment
Notices
which
was
not
administratively
protested
by
the
petitioner
can
be
considered
a
final
decision
of
the
CIR
appealable
to
the
CTA
because
the
words
used,
specifically
the
words
"final
decision"
and
"appeal",
taken
together
led
petitioner
to
believe
that
the
Formal
Letter
of
Demand
with
Assessment
Notices
was
in
fact
the
final
decision
of
the
CIR
on
the
letter-‐protest
it
filed
and
that
the
available
remedy
was
to
appeal
the
same
to
the
CTA.
35.) UNITED
AIRLINES,
INC.
VS.
CIR
In
South
African
Airways
v.
Commissioner
of
Internal
Revenue,
20
we
ruled
that
the
correct
interpretation
of
the
said
provisions
is
that,
if
an
international
air
carrier
maintains
flights
to
and
from
the
Philippines,
it
shall
be
taxed
at
the
rate
of
2
1/2%
of
its
GPB,
while
international
air
carriers
that
do
not
have
flights
to
and
from
the
Philippines
but
nonetheless
earn
income
from
other
activities
in
the
country
will
be
taxed
at
the
rate
of
32%
of
such
income.
In
several
instances
prior
to
the
instant
case,
we
have
already
made
the
pronouncement
that
taxes
cannot
be
subject
to
compensation
for
the
simple
reason
that
the
government
and
the
taxpayer
are
not
creditors
and
debtors
of
each
other.
There
is
a
material
distinction
between
a
tax
and
debt.
Debts
are
due
to
the
Government
in
its
corporate
capacity,
while
taxes
are
due
to
the
Government
in
its
sovereign
capacity.
We
find
no
cogent
reason
to
deviate
from
the
aforementioned
distinction.
We
have
consistently
ruled
that
there
can
be
no
off-‐setting
of
taxes
against
the
claims
that
the
taxpayer
may
have
against
the
government.
A
person
cannot
refuse
to
pay
a
tax
on
the
ground
that
the
government
owes
him
an
amount
equal
to
or
greater
than
the
tax
being
collected.
The
collection
of
a
tax
cannot
await
the
results
of
a
lawsuit
against
the
government.
49
Commissioner
of
Internal
Revenue
v.
Court
of
Tax
Appeals,
however,
granted
the
offsetting
of
a
tax
refund
with
a
tax
deficiency
in
this
wise:
“Further,
it
is
also
worth
noting
that
the
Court
of
Tax
Appeals
erred
in
denying
petitioner's
supplemental
motion
for
reconsideration
alleging
bringing
to
said
court's
attention
the
existence
of
the
deficiency
income
and
business
tax
assessment
against
Citytrust.
The
fact
of
such
deficiency
assessment
is
intimately
related
to
and
inextricably
intertwined
with
the
right
of
respondent
bank
to
claim
for
a
tax
refund
for
the
same
year.
To
award
such
refund
despite
the
existence
of
that
deficiency
assessment
is
an
absurdity
and
a
polarity
in
conceptual
effects.
Herein
private
respondent
cannot
be
entitled
to
refund
and
at
the
same
time
be
liable
for
a
tax
deficiency
assessment
for
the
same
year.
The
grant
of
a
refund
is
founded
on
the
assumption
that
the
tax
return
is
valid,
that
is,
the
facts
stated
therein
are
true
and
correct.
The
deficiency
assessment,
although
not
yet
final,
created
a
doubt
as
to
and
constitutes
a
challenge
against
the
truth
and
accuracy
of
the
facts
stated
in
said
return
which,
by
itself
and
without
unquestionable
evidence,
cannot
be
the
basis
for
the
grant
of
the
refund.
Moreover,
to
grant
the
refund
without
determination
of
the
proper
assessment
and
the
tax
due
would
inevitably
result
in
multiplicity
of
proceedings
or
suits.
If
the
deficiency
assessment
should
subsequently
be
upheld,
the
Government
will
be
forced
to
institute
anew
a
proceeding
for
the
recovery
of
erroneously
refunded
taxes
which
recourse
must
be
filed
within
the
prescriptive
period
of
ten
years
after
discovery
of
the
falsity,
fraud
or
omission
in
the
false
or
fraudulent
return
involved.
This
would
necessarily
require
and
entail
additional
efforts
and
expenses
on
the
part
of
the
Government,
impose
a
burden
on
and
a
drain
of
government
funds,
and
impede
or
delay
the
collection
of
much-‐needed
revenue
for
governmental
operations.
Thus,
to
avoid
multiplicity
of
suits
and
unnecessary
difficulties
or
expenses,
it
is
both
logically
necessary
and
legally
appropriate
that
the
issue
of
the
deficiency
tax
assessment
against
Citytrust
be
resolved
jointly
with
its
claim
for
tax
refund,
to
determine
once
and
for
all
in
a
single
proceeding
the
true
and
correct
amount
of
tax
due
or
refundable.
We
must
emphasize
that
tax
refunds,
like
tax
exemptions,
are
construed
strictly
against
the
taxpayer
and
liberally
in
favor
of
the
taxing
authority.
In
any
event,
petitioner
has
not
discharged
its
burden
of
proof
in
establishing
the
factual
basis
for
its
claim
for
a
refund
and
we
find
no
reason
to
disturb
the
ruling
of
the
CTA.
It
has
been
a
long-‐standing
policy
and
practice
of
the
Court
to
respect
the
conclusions
of
quasi-‐judicial
agencies
such
as
the
CTA,
a
highly
specialized
body
specifically
created
for
the
purpose
of
reviewing
tax
cases.
36.) SOUTH
AFRICAN
AIRWAYS
VS.
CIR
In
Commissioner
of
Internal
Revenue
v.
British
Overseas
Airways
Corporation
(British
Overseas
Airways),
which
was
decided
under
similar
factual
circumstances,
this
Court
ruled
that
off-‐line
air
carriers
having
50
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.
Thus,
in
that
case,
we
held
the
off-‐line
air
carrier
liable
for
the
32%
tax
on
its
taxable
income.
In
the
instant
case,
the
general
rule
is
that
resident
foreign
corporations
shall
be
liable
for
a
32%
income
tax
on
their
income
from
within
the
Philippines,
except
for
resident
foreign
corporations
that
are
international
carriers
that
derive
income
"from
carriage
of
persons,
excess
baggage,
cargo
and
mail
originating
from
the
Philippines"
which
shall
be
taxed
at
2
1/2%
of
their
Gross
Philippine
Billings.
Petitioner,
being
an
international
carrier
with
no
flights
originating
from
the
Philippines,
does
not
fall
under
the
exception.
As
such,
petitioner
must
fall
under
the
general
rule.
This
principle
is
embodied
in
the
Latin
maxim,
exception
firmat
regulam
in
casibus
non
exceptis,
which
means,
a
thing
not
being
excepted
must
be
regarded
as
coming
within
the
purview
of
the
general
rule.
To
reiterate,
the
correct
interpretation
of
the
above
provisions
is
that,
if
an
international
air
carrier
maintains
flights
to
and
from
the
Philippines,
it
shall
be
taxed
at
the
rate
of
2
1/2%
of
its
Gross
Philippine
Billings,
while
international
air
carriers
that
do
not
have
flights
to
and
from
the
Philippines
but
nonetheless
earn
income
from
other
activities
in
the
country
will
be
taxed
at
the
rate
of
32%
of
such
income.
37.) CIR
VS.
SM
PRIME
HOLDINGS,
INC.
Since
the
activity
of
showing
motion
pictures,
films
or
movies
by
cinema/theater
operators
or
proprietors
is
not
included
in
the
enumeration,
it
is
incumbent
upon
the
court
to
the
determine
whether
such
activity
falls
under
the
phrase
"similar
services."
The
intent
of
the
legislature
must
therefore
be
ascertained.
The
legislature
never
intended
operators
or
proprietors
of
cinema/theater
houses
to
be
covered
by
VAT.
These
reveal
the
legislative
intent
not
to
impose
VAT
on
persons
already
covered
by
the
amusement
tax.
This
holds
true
even
in
the
case
of
cinema/theater
operators
taxed
under
the
LGC
of
1991
precisely
because
the
VAT
law
was
intended
to
replace
the
percentage
tax
on
certain
services.
The
mere
fact
that
they
are
taxed
by
the
local
government
unit
and
not
by
the
national
government
is
immaterial.
The
Local
Tax
Code,
in
transferring
the
power
to
tax
gross
receipts
derived
by
cinema/theater
operators
or
proprietor
from
admission
tickets
to
the
local
government,
did
not
intend
to
treat
cinema/theater
houses
as
a
separate
class.
No
distinction
must,
therefore,
be
made
between
the
places
of
amusement
taxed
by
the
national
government
and
those
taxed
by
the
local
government.
To
hold
otherwise
would
impose
an
unreasonable
burden
on
cinema/theater
houses
operators
or
proprietors,
who
would
be
paying
an
additional
10%
55
VAT
on
top
of
the
30%
amusement
tax
imposed
by
Section
140
of
the
LGC
of
1991,
or
a
total
of
40%
tax.
Such
imposition
would
result
in
injustice,
as
persons
taxed
under
the
NIRC
of
1997
would
be
in
a
better
position
than
those
taxed
under
the
LGC
of
1991.
We
need
not
belabor
that
a
literal
application
of
a
law
must
be
rejected
if
it
will
operate
unjustly
51
or
lead
to
absurd
results.
56
Thus,
we
are
convinced
that
the
legislature
never
intended
to
include
cinema/theater
operators
or
proprietors
in
the
coverage
of
VAT.
On
this
point,
it
is
apropos
to
quote
the
case
of
Roxas
v.
Court
of
Tax
Appeals,
57
to
wit:
“The
power
of
taxation
is
sometimes
called
also
the
power
to
destroy.
Therefore,
it
should
be
exercised
with
caution
to
minimize
injury
to
the
proprietary
rights
of
a
taxpayer.
It
must
be
exercised
fairly,
equally
and
uniformly,
lest
the
tax
collector
kill
the
"hen
that
lays
the
golden
egg."
And,
in
order
to
maintain
the
general
public's
trust
and
confidence
in
the
Government
this
power
must
be
used
justly
and
not
treacherously.”
The
repeal
of
the
Local
Tax
Code
by
the
LGC
of
1991
is
not
a
legal
basis
for
the
imposition
of
VAT
on
the
gross
receipts
of
cinema/theater
operators
or
proprietors
derived
from
admission
tickets.
The
removal
of
the
prohibition
under
the
Local
Tax
Code
did
not
grant
nor
restore
to
the
national
government
the
power
to
impose
amusement
tax
on
cinema/theater
operators
or
proprietors.
Neither
did
it
expand
the
coverage
of
VAT.
Since
the
imposition
of
a
tax
is
a
burden
on
the
taxpayer,
it
cannot
be
presumed
nor
can
it
be
extended
by
implication.
A
law
will
not
be
construed
as
imposing
a
tax
unless
it
does
so
clearly,
expressly,
and
unambiguously.
As
it
is,
the
power
to
impose
amusement
tax
on
cinema/theater
operators
or
proprietors
remains
with
the
local
government.
Revenue
Memorandum
Circular
No.
28-‐2001
is
invalid
Considering
that
there
is
no
provision
of
law
imposing
VAT
on
the
gross
receipts
of
cinema/theater
operators
or
proprietors
derived
from
admission
tickets,
RMC
No.
28-‐2001
which
imposes
VAT
on
the
gross
receipts
from
admission
to
cinema
houses
must
be
struck
down.
We
cannot
overemphasize
that
RMCs
must
not
override,
supplant,
or
modify
the
law,
but
must
remain
consistent
and
in
harmony
with,
the
law
they
seek
to
apply
and
implement.
In
view
of
the
foregoing,
there
is
no
need
to
discuss
whether
RMC
No.
28-‐2001
complied
with
the
procedural
due
process
for
tax
issuances
as
prescribed
under
RMC
No.
20-‐86.
Rule
on
tax
exemption
does
not
apply
Moreover,
contrary
to
the
view
of
petitioner,
respondents
need
not
prove
their
entitlement
to
an
exemption
from
the
coverage
of
VAT.
The
rule
that
tax
exemptions
should
be
construed
strictly
against
the
taxpayer
presupposes
that
the
taxpayer
is
clearly
subject
to
the
tax
being
levied
against
him.
The
reason
is
obvious:
it
is
both
illogical
and
impractical
to
determine
who
are
exempted
without
first
determining
who
are
covered
by
the
provision.
Thus,
unless
a
statute
imposes
a
tax
clearly,
expressly
and
unambiguously,
what
applies
is
the
equally
well-‐settled
rule
that
the
imposition
of
a
tax
cannot
be
presumed.
In
fact,
in
case
of
doubt,
tax
laws
must
be
construed
strictly
against
the
government
and
in
favor
of
the
taxpayer.
38.) ANGELES
CITY
VS.
ANGLES
ELECTRIC
CORPORATION
52
The
prohibition
on
the
issuance
of
a
writ
of
injunction
to
enjoin
the
collection
of
taxes
applies
only
to
national
internal
revenue
taxes,
and
not
to
local
taxes.
39.) LEPANTO
CONSOLIDATED
MINING
COMPANY
VS.
AMBANLOC
The
provincial
revenue
code
provides
that
the
subject
tax
had
to
be
paid
prior
to
the
issuance
of
the
permit
to
extract
sand
and
gravel.
Its
Article
D,
Section
2,
enumerates
four
kinds
of
permits:
commercial,
industrial,
special,
and
gratuitous.
Special
permits
covered
only
personal
use
of
the
extracted
materials
and
did
not
allow
the
permitees
to
sell
materials
coming
from
his
concession.
Among
applicants
for
permits,
however,
only
gratuitous
permits
were
exempt
from
the
sand
and
gravel
tax.
It
follows
that
persons
who
applied
for
special
permits
needed
to
pay
the
tax,
even
though
they
did
not
extract
materials
for
commercial
purposes.
Thus,
the
tax
needed
to
be
paid
regardless
of
the
applicability
of
the
administrative
and
reportorial
requirements
of
that
revenue
code.
Lepanto
relies
on
the
principle
that
when
a
company
is
taxed
on
its
main
business,
it
is
no
longer
taxable
for
engaging
in
an
activity
that
is
but
a
part
of,
incidental
to,
and
necessary
to
such
main
business.
Lepanto
points
out
that,
since
it
did
not
extract
and
use
sand
and
gravel
as
independent
activities
but
as
integral
parts
of
its
mining
operations,
it
should
not
be
subjected
to
a
separate
tax
on
the
same.
But
in
the
cases
where
this
principle
has
been
applied,
the
taxes
which
were
stricken
down
were
in
the
nature
of
business
taxes.
The
reasoning
behind
those
cases
was
that
the
incidental
activity
could
not
be
treated
as
a
business
separate
and
distinct
from
the
main
business
of
the
taxpayer.
Here
the
tax
is
an
excise
tax
imposed
on
the
privilege
of
extracting
sand
and
gravel.
And
it
is
settled
that
provincial
governments
can
levy
excise
taxes
on
quarry
resources
independently
from
the
national
government.
40.) REPUBLIC
VS.
AQUAFRESH
SEAFOODS,
INC.
While
the
CIR
has
the
authority
to
prescribe
real
property
values
and
divide
the
Philippines
into
zones,
the
law
is
clear
that
the
same
has
to
be
done
upon
consultation
with
competent
appraisers
both
from
the
public
and
private
sectors.
It
is
undisputed
that
at
the
time
of
the
sale
of
the
subject
properties
found
in
Barrio
Banica,
Roxas
City,
the
same
were
classified
as
"RR,"
or
residential,
based
on
the
1995
Revised
Zonal
Value
of
Real
Properties.
Petitioner,
thus,
cannot
unilaterally
change
the
zonal
valuation
of
such
properties
to
"commercial"
without
first
conducting
a
re-‐evaluation
of
the
zonal
values
as
mandated
under
Section
6
(E)
of
the
NIRC.
This
Court
agrees
with
the
observation
of
the
CTA
that
"zonal
valuation
was
established
with
the
objective
of
having
an
'efficient
tax
administration
by
minimizing
the
use
of
discretion
in
the
determination
of
the
tax
based
on
the
part
of
the
administrator
on
one
hand
and
the
taxpayer
on
the
other
hand.'"
Zonal
value
is
determined
for
the
purpose
of
establishing
a
more
realistic
basis
for
real
property
valuation.
Since
internal
revenue
taxes,
such
as
CGT
and
DST,
are
assessed
on
the
basis
of
valuation,
the
zonal
valuation
existing
at
the
time
of
the
sale
should
be
taken
into
account.
53
If
petitioner
feels
that
the
properties
in
Barrio
Banica
should
also
be
classified
as
commercial,
then
petitioner
should
work
for
its
revision
in
accordance
with
Revenue
Memorandum
Order
No.
58-‐69.
The
burden
was
on
petitioner
to
prove
that
the
classification
and
zonal
valuation
in
Barrio
Banica
have
been
revised
in
accordance
with
the
prevailing
memorandum.
In
the
absence
of
proof
to
the
contrary,
the
1995
Revised
Zonal
Values
of
Real
Properties
must
be
followed.
Lastly,
this
Court
takes
note
of
the
wording
of
Section
2
(b)
of
the
Zonal
Valuation
Guidelines,
to
wit:
2.
Predominant
Use
of
Property.
b)
The
predominant
use
of
other
classification
of
properties
located
in
a
street/barangay
zone,
regardless
of
actual
use
shall
be
considered
for
purposes
of
zonal
valuation.
Based
thereon,
this
Court
rules
that
even
assuming
arguendo
that
the
subject
properties
were
used
for
commercial
purposes,
the
same
remains
to
be
residential
for
zonal
value
purposes.
It
appears
that
actual
use
is
not
considered
for
zonal
valuation,
but
the
predominant
use
of
other
classification
of
properties
located
in
the
zone.
Again,
it
is
undisputed
that
the
entire
Barrio
Banica
has
been
classified
as
residential.
41.) MANILA
INTERNATIONAL
AIRPORT
AUTHORITY
VS.
CITY
OF
PASAY
MIAA
is
not
a
government-‐owned
or
controlled
corporation
but
a
government
instrumentality
which
is
exempt
from
any
kind
of
tax
from
the
local
governments.
Indeed,
the
exercise
of
the
taxing
power
of
local
government
units
is
subject
to
the
limitations
enumerated
in
Section
133
of
the
Local
Government
Code.
10
Under
Section
133
(o)
11
of
the
Local
Government
Code,
local
government
units
have
no
power
to
tax
instrumentalities
of
the
national
government
like
the
MIAA.
Hence,
MIAA
is
not
liable
to
pay
real
property
tax
for
the
NAIA
Pasay
properties.
Furthermore,
the
airport
lands
and
buildings
of
MIAA
are
properties
of
public
dominion
intended
for
public
use,
and
as
such
are
exempt
from
real
property
tax
under
Section
234
(a)
of
the
Local
Government
Code.
However,
under
the
same
provision,
if
MIAA
leases
its
real
property
to
a
taxable
person,
the
specific
property
leased
becomes
subject
to
real
property
tax.
In
this
case,
only
those
portions
of
the
NAIA
Pasay
properties
which
are
leased
to
taxable
persons
like
private
parties
are
subject
to
real
property
tax
by
the
City
of
Pasay.
42.) THE
PROVINCIAL
ASSESSOR
OF
MARINDUQUE
VS.
CA
As
held
in
Mactan,
the
exemption
granted
under
Sec.
234
(e)
of
R.A.
No.
7160
to
"[m]achinery
and
equipment
used
for
pollution
control
and
environmental
protection"
is
based
on
usage.
The
term
usage
means
direct,
immediate
and
actual
application
of
the
property
itself
to
the
exempting
purpose.
Section
199
of
R.A.
No.
7160
defines
actual
use
as
"the
purpose
for
which
the
property
is
principally
or
predominantly
utilized
by
the
person
in
possession
thereof".
It
contemplates
concrete,
as
distinguished
from
mere
potential,
use.
Thus,
a
claim
for
exemption
under
Sec.
234
(e)
of
R.A.
No.
7160
should
be
54
supported
by
evidence
that
the
property
sought
to
be
exempt
is
actually,
directly
and
exclusively
used
for
pollution
control
and
environmental
protection.
43.) NATIONAL
POWER
CORPORATION
VS.
PROVINCE
OF
QUEZON
AND
MUNICIPALITY
OF
PAGBILAO
It
was
an
ill-‐advised
move
for
Napocor
to
directly
file
an
appeal
with
the
LBAA
under
Section
226
without
first
paying
the
tax
as
required
under
Section
252.
Sections
252
and
226
provide
successive
administrative
remedies
to
a
taxpayer
who
questions
the
correctness
of
an
assessment.
Section
226,
in
declaring
that
"any
owner
or
person
having
legal
interest
in
the
property
who
is
not
satisfied
with
the
action
of
the
provincial,
city,
or
municipal
assessor
in
the
assessment
of
his
property
may
.
.
.
appeal
to
the
Board
of
Assessment
Appeals
.
.
.,"
should
be
read
in
conjunction
with
Section
252
(d),
which
states
that
"in
the
event
that
the
protest
is
denied
.
.
.,
the
taxpayer
may
avail
of
the
remedies
as
provided
for
in
Chapter
3,
Title
II,
Book
II
of
the
LGC
[Chapter
3
refers
to
Assessment
Appeals,
which
includes
Sections
226
to
231].
The
"action"
referred
to
in
Section
226
(in
relation
to
a
protest
of
real
property
tax
assessment)
thus
refers
to
the
local
assessor's
act
of
denying
the
protest
filed
pursuant
to
Section
252.
Without
the
action
of
the
local
assessor,
the
appellate
authority
of
the
LBAA
cannot
be
invoked.
Napocor's
action
before
the
LBAA
was
thus
prematurely
filed.
44.) CIR
VS.
ENRON
SUBIC
POWER
CORPORATION
The
advice
of
tax
deficiency,
given
by
the
CIR
to
an
employee
of
Enron,
as
well
as
the
preliminary
five-‐
day
letter,
were
not
valid
substitutes
for
the
mandatory
notice
in
writing
of
the
legal
and
factual
bases
of
the
assessment.
These
steps
were
mere
perfunctory
discharges
of
the
CIR's
duties
in
correctly
assessing
a
taxpayer.
The
requirement
for
issuing
a
preliminary
or
final
notice,
as
the
case
may
be,
informing
a
taxpayer
of
the
existence
of
a
deficiency
tax
assessment
is
markedly
different
from
the
requirement
of
what
such
notice
must
contain.
Just
because
the
CIR
issued
an
advice,
a
preliminary
letter
during
the
pre-‐assessment
stage
and
a
final
notice,
in
the
order
required
by
law,
does
not
necessarily
mean
that
Enron
was
informed
of
the
law
and
facts
on
which
the
deficiency
tax
assessment
was
made.
The
law
requires
that
the
legal
and
factual
bases
of
the
assessment
be
stated
in
the
formal
letter
of
demand
and
assessment
notice.
Thus,
such
cannot
be
presumed.
Otherwise,
the
express
provisions
of
Article
228
of
the
NIRC
and
RR
No.
12-‐99
would
be
rendered
nugatory.
The
alleged
"factual
bases"
in
the
advice,
preliminary
letter
and
"audit
working
papers"
did
not
suffice.
There
was
no
going
around
the
mandate
of
the
law
that
the
legal
and
factual
bases
of
the
assessment
be
stated
in
writing
in
the
formal
letter
of
demand
accompanying
the
assessment
notice.
We
note
that
the
old
law
merely
required
that
the
taxpayer
be
notified
of
the
assessment
made
by
the
CIR.
This
was
changed
in
1998
and
the
taxpayer
must
now
be
informed
not
only
of
the
law
but
also
of
the
facts
on
which
the
assessment
is
made.
Such
amendment
is
in
keeping
with
the
constitutional
55
principle
that
no
person
shall
be
deprived
of
property
without
due
process.
In
view
of
the
absence
of
a
fair
opportunity
for
Enron
to
be
informed
of
the
legal
and
factual
bases
of
the
assessment
against
it,
the
assessment
in
question
was
void.
We
reiterate
our
ruling
in
Reyes
v.
Almanzor,
et
al.:
“Verily,
taxes
are
the
lifeblood
of
the
Government
and
so
should
be
collected
without
unnecessary
hindrance.
However,
such
collection
should
be
made
in
accordance
with
law
as
any
arbitrariness
will
negate
the
very
reason
for
the
Government
itself.”
45.) BRITISH
AMERICAN
TOBACCO
VS.
CAMACHO
Petitioner
asserts
that
the
Court
erroneously
applied
the
rational
basis
test
allegedly
because
this
test
does
not
apply
in
a
constitutional
challenge
based
on
a
violation
of
Section
19,
Article
XII
of
the
Constitution
on
unfair
competition.
Citing
Tatad
v.
Secretary
of
the
Department
of
Energy,
it
argues
that
the
classification
freeze
provision
gives
the
brands
under
Annex
"D"
a
decisive
edge
because
it
constitutes
a
substantial
barrier
to
the
entry
of
prospective
players;
that
the
Annex
"D"
provision
is
no
different
from
the
4%
tariff
differential
which
we
invalidated
in
Tatad;
that
some
of
the
new
brands,
like
Astro,
Memphis,
Capri,
L&M,
Bowling
Green,
Forbes,
and
Canon,
which
were
introduced
into
the
market
after
the
effectivity
of
the
assailed
law
on
January
1,
1997,
were
"killed"
by
Annex
"D"
brands
because
the
former
brands
were
reclassified
by
the
BIR
to
higher
tax
brackets;
that
the
finding
that
price
is
not
the
only
factor
in
the
market
as
there
are
other
factors
like
consumer
preference,
active
ingredients,
etc.
is
contrary
to
the
evidence
presented
and
the
deliberations
in
Congress;
that
the
classification
freeze
provision
will
encourage
predatory
pricing
in
contravention
of
the
constitutional
prohibition
on
unfair
competition;
and
that
the
cumulative
effect
of
the
operation
of
the
classification
freeze
provision
is
to
perpetuate
the
oligopoly
of
intervenors
Philip
Morris
and
Fortune
Tobacco
in
contravention
of
the
constitutional
edict
for
the
State
to
regulate
or
prohibit
monopolies,
and
to
disallow
combinations
in
restraint
of
trade
and
unfair
competition.
The
argument
lacks
merit.
While
previously
arguing
that
the
rational
basis
test
was
not
satisfied,
petitioner
now
asserts
that
this
test
does
not
apply
in
this
case
and
that
the
proper
matrix
to
evaluate
the
constitutionality
of
the
assailed
law
is
the
prohibition
on
unfair
competition
under
Section
19,
Article
XII
of
the
Constitution.
It
should
be
noted
that
during
the
trial
below,
petitioner
did
not
invoke
said
constitutional
provision
as
it
relied
solely
on
the
alleged
violation
of
the
equal
protection
and
uniformity
of
taxation
clauses.
Well-‐settled
is
the
rule
that
points
of
law,
theories,
issues
and
arguments
not
adequately
brought
to
the
attention
of
the
lower
court
will
not
be
ordinarily
considered
by
a
reviewing
court
as
they
cannot
be
raised
for
the
first
time
on
appeal.
At
any
rate,
even
if
we
were
to
relax
this
rule,
as
previously
stated,
the
evidence
presented
before
the
trial
court
is
insufficient
to
establish
the
alleged
violation
of
the
constitutional
proscription
against
unfair
competition.
In
sum,
the
totality
of
the
evidence
presented
by
petitioner
before
the
trial
court
failed
to
convincingly
establish
the
alleged
violation
of
the
constitutional
prohibition
on
unfair
competition.
It
is
a
basic
postulate
that
the
one
who
challenges
the
constitutionality
of
a
law
carries
the
heavy
burden
of
proof
56
for
laws
enjoy
a
strong
presumption
of
constitutionality
as
it
is
an
act
of
a
co-‐equal
branch
of
government.
Petitioner
failed
to
carry
this
burden.
[R]egressivity
is
not
a
negative
standard
for
courts
to
enforce.
What
Congress
is
required
by
the
Constitution
to
do
is
to
"evolve
a
progressive
system
of
taxation."
This
is
a
directive
to
Congress,
just
like
the
directive
to
it
to
give
priority
to
the
enactment
of
laws
for
the
enhancement
of
human
dignity
and
the
reduction
of
social,
economic
and
political
inequalities
[Art.
XIII,
Section
1]
or
for
the
promotion
of
the
right
to
"quality
education"
[Art.
XIV,
Section
1].
These
provisions
are
put
in
the
Constitution
as
moral
incentives
to
legislation,
not
as
judicially
enforceable
rights.
57