G.R. No.

88291 June 8, 1993

FACTS:
Petitioner contends that P.D. No. 938 repealed the indirect tax exemption of NPC as the
phrase "all forms of taxes etc.," in its section 10, amending Section 13, R.A. No. 6395, as amended
by P.D. No. 380, does not expressly include "indirect taxes."
His point is not well-taken.
A chronological review of the NPC laws will show that it has been the lawmaker's intention
that the NPC was to be completely tax exempt from all forms of taxes direct and indirect.
NPC's tax exemptions at first applied to the bonds it was authorized to float to finance its operations
upon its creation by virtue of C.A. No. 120. When the NPC was authorized to contract with the IBRD
for foreign financing, any loans obtained were to be completely tax exempt. After the NPC was
authorized to borrow from other sources of funds aside issuance of bonds it was again
specifically exempted from all types of taxes "to facilitate payment of its indebtedness." Even when
the ceilings for domestic and foreign borrowings were periodically increased, the tax exemption
privileges of the NPC were maintained. NPC's tax exemption from real estate taxes was, however,
specifically withdrawn by Rep. Act No. 987, as above stated. The exemption was, however, restored
by R.A. No. 6395.
Section 13, R.A. No. 6395, was very comprehensive in its enumeration of the tax exemptions
allowed NPC. Its section 13(d) is the starting point of this bone of contention among the parties. For
easy reference, it is reproduced as follows:
[T]he Corporation is hereby declared exempt:
(d) From all taxes, duties, fees, imposts and all other charges imposed by the
Republic of the Philippines, its provinces, cities, municipalities and other government
agencies and instrumentalities, on all petroleum products used by the Corporation in
the generation, transmission, utilization, and sale of electric power.
P.D. No. 380 added phrase "directly or indirectly" to said Section 13(d), which now reads as follows:

(d) From all taxes, duties, fees, imposts, and all other charges imposed directly or
indirectly by the Republic of the Philippines, its provinces, cities, municipalities and
other government agencies and instrumentalities, on all petroleum products used by
the Corporation in the generation, transmission, utilization and sale of electric power.
(Emphasis supplied)
Then came P.D. No. 938 which amended Sec. 13(a), (b), (c) and (d) into one very simple paragraph
as follows:
The Corporation shall be non-profit and shall devote all its returns from its capital
investment as well as excess revenues from its operation, for expansion. To enable
the Corporation to pay its indebtedness and obligations and in furtherance and
effective implementation of the policy enunciated in Section one of this Act, the
Corporation, including its subsidiaries, is hereby declared exempt from the payment
of ALL FORMS OF taxes, duties, fees, imposts as well as costs and service fees
including filing fees, appeal bonds, supersedeas bonds, in any court or administrative
proceedings. (Emphasis supplied)
It
must
be
borne
in
mind
that
Presidential
Decree
Nos.
380
and 938 were issued by one man, acting as such the Executive and Legislative. Since both
presidential decrees were made by the same person, it would have been very easy for him to retain
the same or similar language used in P.D. No. 380 P.D. No. 938 if his intention were to preserve the
indirect tax exemption of NPC. Actually, P.D. No. 938 attests to the ingenuousness of then President
Marcos no matter what his fault were. It should be noted that section 13, R.A. No. 6395, provided for
tax exemptions for the following items:
13(a) : court or administrative proceedings;
13(b) : income, franchise, realty taxes;
13(c) : import of foreign goods required for its operations and projects;
13(d) : petroleum products used in generation of electric power.
P.D. No. 938 lumped up 13(b), 13(c), and 13(d) into the phrase "ALL FORMS OF TAXES,
ETC.,", included 13(a) under the "as well as" clause and added PNOC subsidiaries as qualified for
tax exemptions.
One common theme in all these laws is that the NPC must be enable to pay its
indebtedness which, as of P.D. No. 938, was P12 Billion in total domestic indebtedness, at any one time,
and U$4 Billion in total foreign loans at any one time. The NPC must be and has to be exempt from all
forms of taxes if this goal is to be achieved.
By virtue of P.D. No. 938 NPC's capital stock was raised to P8 Billion. It must be
remembered that to pay the government share in its capital stock P.D. No. 758 was issued
mandating that P200 Million would be appropriated annually to cover the said unpaid subscription of

the Government in NPC's authorized capital stock. And significantly one of the sources of this annual
appropriation of P200 million is TAX MONEY accruing to the General Fund of the Government. It
does not stand to reason then that former President Marcos would order P200 Million to be taken
partially or totally from tax money to be used to pay the Government subscription in the NPC, on one
hand, and then order the NPC to pay all its indirect taxes, on the other.
The above conclusion that then President Marcos lumped up Sections 13 (b), 13 (c) and (d)
into the phrase "All FORMS OF" is supported by the fact that he did not do the same for the tax
exemption provision for the foreign loans to be incurred.
The same was amended by P.D. No. 380 as follows:
The loans, credits and indebtedness contracted this subsection and the payment of
the principal, interest and other charges thereon, as well as the importation of
machinery, equipment, materials, supplies and services, by the Corporation, paid
from the proceeds of any loan, credit or indebtedness incurred under this Act, shall
also be exempt from all direct and indirect taxes, fees, imposts, other charges and
restrictions, including import restrictions previously and presently imposed, and to be
imposed by the Republic of the Philippines, or any of its agencies and political
subdivisions. 58(Emphasis supplied)
P.D. No. 938 did not amend the same and so the tax exemption provision in Section 8 (b), R.A. No.
6395, as amended by P.D. No. 380, still stands. Since the subject matter of this particular Section 8 (b)
had to do only with loans and machinery imported, paid for from the proceeds of these foreign
loans, THERE WAS NO OTHER SUBJECT MATTER TO LUMP IT UP WITH, and so, the tax exemption
stood
as
is

with
the
express
mention
of
"direct
and indirect" tax exemptions. And this "direct and indirect" tax exemption privilege extended to "taxes,
fees, imposts, other charges . . . to be imposed" in the future surely, an indication that the lawmakers
wanted the NPC to be exempt from ALL FORMS of taxes direct and indirect.
It is crystal clear, therefore, that NPC had been granted tax exemption privileges for both
direct and indirect taxes under P.D. No. 938.

ISSUE:
Whether the NPC shall pay all its indirect taxes

HELD:
No. Tax exemptions are undoubtedly to be construed strictly but not so grudgingly as
knowledge that many impositions taxpayers have to pay are in the nature of indirect taxes. To limit
the exemption granted the National Power Corporation to direct taxes notwithstanding the general
and broad language of the statue will be to thwart the legislative intention in giving exemption from

all forms of taxes and impositions without distinguishing between those that are direct and those that
are not.
In view of all the foregoing, the Court rules and declares that the oil companies which supply
bunker fuel oil to NPC have to pay the taxes imposed upon said bunker fuel oil sold to NPC. By the
very nature of indirect taxation, the economic burden of such taxation is expected to be passed on
through the channels of commerce to the user or consumer of the goods sold. Because, however,
the NPC has been exempted from both direct and indirect taxation, the NPC must beheld exempted
from absorbing the economic burden of indirect taxation. This means, on the one hand, that the oil
companies which wish to sell to NPC absorb all or part of the economic burden of the taxes
previously paid to BIR, which they could shift to NPC if NPC did not enjoy exemption from indirect
taxes. This means also, on the other hand, that the NPC may refuse to pay the part of the "normal"
purchase price of bunker fuel oil which represents all or part of the taxes previously paid by the oil
companies to BIR. If NPC nonetheless purchases such oil from the oil companies because to do
so may be more convenient and ultimately less costly for NPC than NPC itself importing and hauling
and storing the oil from overseas NPC is entitled to be reimbursed by the BIR for that part of the
buying price of NPC which verifiably represents the tax already paid by the oil company-vendor to
the BIR.
It should be noted at this point in time that the whole issue of who WILL pay these indirect
taxes HAS BEEN RENDERED moot and academic by E.O. No. 195 issued on June 16, 1987 by
virtue of which the ad valorem tax rate on bunker fuel oil was reduced to ZERO (0%) PER CENTUM.
The oil companies can now deliver bunker fuel oil to NPC without having to worry about who
is going to bear the economic burden of the ad valorem taxes. What this Court will now dispose of
are petitioner's complaints that some indirect tax money has been illegally refunded by the Bureau of
Internal Revenue to the NPC and that more claims for refunds by the NPC are being processed for
payment by the BIR.
A case in point is the Tax Credit Memo issued by the Bureau of Internal Revenue in favor of
the NPC last July 7, 1986 for P58.020.110.79 which was for "erroneously paid specific and ad
valorem taxes during the period from October 31, 1984 to April 27, 1985. 91 Petitioner asks Us to
declare this Tax Credit Memo illegal as the PNC did not have indirect tax exemptions with the enactment
of P.D. No. 938. As We have already ruled otherwise, the only questions left are whether NPC Is entitled
to a tax refund for the tax component of the price of the bunker fuel oil purchased from Caltex (Phils.) Inc.
and whether the Bureau of Internal Revenue properly refunded the amount to NPC.
After P.D. No. 1931 was issued on June 11, 1984 withdrawing the
tax exemptions of all GOCCs NPC included, it was only on May 8, 1985 when the BIR issues its
letter authority to the NPC authorizing it to withdraw tax-free bunker fuel oil from the oil companies
pursuant to FIRB Resolution No. 10-85. 92 Since the tax exemption restoration was retroactive to June
11, 1984 there was a need. therefore, to recover said amount as Caltex (PhiIs.) Inc. had already paid the
BIR the specific and ad valorem taxes on the bunker oil it sold NPC during the period above indicated and
had billed NPC correspondingly. It should be noted that the NPC, in its letter-claim dated September 11,
1985 to the Commissioner of the Bureau of Internal Revenue DID NOT CATEGORICALLY AND
UNEQUIVOCALLY STATE that itself paid the P58.020,110.79 as part of the bunker fuel oil price it
purchased from Caltex (Phils) Inc.