Tax Bulletin

April 2018

Tax Bulletin | 1
 Highlights

BIR Issuances

• Revenue Regulation (RR) No. 14-2018 amends Sections 2 and 14 of RR

No. 11-2018, specifically the creditable withholding tax (CWT) rate on
professional, promotional and talent fees received by value-added tax
(VAT)-registered individual payees and the deadline for the submission of
certain reportorial requirements prescribed under RR 11-2018. (Page 3)

• RR No. 15-2018 amends Section 13 of RR No. 8-2018, specifically the

deadline for updating the registration from VAT to non-VAT of VAT-
registered taxpayers whose gross sales/ receipts and other non-operating
income do not exceed the VAT threshold of P3 million in the preceding
year. (Page 4)

• Revenue Memorandum Circular (RMC) No. 21-2018 circularizes

Memorandum Circular No. 16-2018 dated 15 March 2018 regarding the
imposition of surcharge, interest and compromise penalty for filing an
amended tax return. (Page 4)

• RMC No. 24-2018 prescribes the guidelines in the filing, receiving

and processing of the 2017 Income Tax Returns (ITRs), including their
attachments. (Page 5)

BOC Update

• The BOC Memorandum provides for the Deferment of Memorandum

No. 2018-04-002 dated 12 March 2018 requiring the Submission and
Counter-Checking of the List of Importables. (Page 8)

BOI Update

• The Announcement reminds all BOI-registered enterprises on the deadline

and guidelines for submission of the annual reportorial requirements.
(Page 8)

BSP Issuance

• Circular No. 1000 provides for the Guidelines on the Settlement of Instant
Retail Payments. (Page 9)

SEC Opinions and Issuances

• A mere board resolution or approval cannot enforce the qualification/

disqualification of a director of a corporation. (Page 10)

• The power to amend corporate by-laws may be delegated to the board of

directors if duly voted for by the stockholders. (Page 11)

• SEC MC No. 6 adopts new and amended accounting standards as part of its
rules and regulations on financial reporting. (Page 11)

2 | Tax Bulletin
 • SEC MC No. 7 provides for the amendment to the requirements on nomination
and election of independent director under the Implementing Rules and
Regulations of the Securities Regulation Code. (Page 11)

• SEC MC No. 8 provides for new rules for publicly-listed companies as to their
choice of external auditor and audit committee composition. (Page 12)

Court Decisions

• Section 249 of the Tax Code, as amended by the Tax Reform for Acceleration
and Inclusion (TRAIN) Law, prescribes that in no case shall the deficiency and
delinquency interest be imposed simultaneously. (Page 12)

• A “Build-To-Own” or “Build-Your-Own” scheme, which is actually a sale of real

property under the circumstances, is subject to expanded withholding tax (EWT)
and documentary stamp tax (DST). (Page 13)

• When a corporation overpays its income tax liability at the close of the taxable
year, it has two options: (1) to be refunded or issued a Tax Credit Certificate
(TCC), or (2) to carry over such overpayment to the succeeding taxable quarters
to be applied as tax credit against income tax due.

The carry-over option, once taken, becomes irrevocable such that the taxpayer
cannot later on change its mind to claim a cash refund or issuance of a TCC for
the overpayment or excess income tax credit. (Page 14)

 
BIR Issuances

RR No. 14-2018 amends Sections 2 and RR No. 14-2018 dated 5 April 2018
14 of RR No. 11-2018, specifically the
CWT rate on professional, promotional • As amended, Section 2 of RR 11-2018 now imposes a 10% CWT on gross
and talent fees received by VAT- professional, promotional and talent fees or any other form of remuneration,
registered individual payees and the regardless of amount, for services rendered by VAT-registered individual payees.
deadline for the submission of certain
reportorial requirements prescribed • Section 14 has also been amended as follows:
under RR 11-2018.
1. Income payees subject to withholding tax under Section 2 of RR No. 11-
2018 and seeking exemption from the prescribed withholding tax rates,
shall submit on or before 20 April 2018, a duly accomplished “Income
Payee’s Sworn Declaration of Gross Receipts/Sales,” together with a copy
of the Certificate of Registration (COR), to the income payor/ withholding
agent.

2. The income payor/withholding agent, who/which received the “Income

Payee’s Sworn Declaration of Gross Receipts/ Sales” and the copy of the
payee’s COR, shall submit on or before 30 April 2018, a duly accomplished
“Income Payor/ Withholding Agent’s Sworn Declaration,” together with the
List of Payees, who have submitted “Income Payee’s Sworn Declaration of
Gross Receipts/Sales” and copies of CORs.

Tax Bulletin | 3
 3. The list of payees, who are subject to refund either due to the change of
rates of withholding or due to the qualification to avail of exemption from
withholding tax (e.g. income recipient/ payee submitted “Income Payee’s
Sworn Declaration of Gross Receipts/ Sales” and copy of COR), shall
likewise be attached to the first quarter return, which shall be filed on or
before 30 April 2018.

• The regulations shall take effect immediately.

(Editor’s Note: RR No. 14-2018 was published in the Manila Bulletin on 7 April
2018)

RR No. 15-2018 amends Section 13 of RR No. 15-2018 dated 5 April 2018

RR No. 8-2018, specifically the deadline
for updating the registration from VAT • Section 13 of RR No. 8-2018 has been amended to extend the deadline of
to non-VAT of VAT-registered taxpayers registration updates as follows:
whose gross sales/ receipts and other
non-operating income do not exceed 1. All existing VAT registered taxpayers whose gross sales/ receipts and
the VAT threshold of P3 million in the other non-operating income in the preceding year did not exceed the VAT
preceding year. threshold of P3 million shall have the option to update their registration
to non-VAT until 30 April 2018, following the existing procedures on
registration updates and the inventory and surrender/cancellation of the
unused VAT invoices/receipts.

2. After the said date, existing VAT-registered taxpayers who have not
exceeded the threshold for the immediately preceding three years, may
opt to update their registration to non-VAT, following rules on registration
updates, verification and the inventory and cancellation of VAT invoices/
receipts.

• The regulations shall take effect immediately.

(Editor’s Note: RR No. 15-2018 was published in the Manila Bulletin on 7 April
2018)

RMC No. 21-2018 circularizes RMC No. 21-2018 dated April 5, 2018
Memorandum Circular No. 16-2018
dated 15 March 2018 regarding the In reply to an email sent to the Deputy Commissioner for Operations regarding
imposition of surcharge, interest the inconsistencies in the imposition of penalty and interest for filing an amended
and compromise penalty for filing an return, the Commissioner of Internal Revenue issued Memorandum Circular No.
amended tax return. 16-2018, which provides as follows:

• In case a tax return is amended and an additional tax is computed, the 20%
interest and 25% penalty shall be imposed on the additional tax to be paid per
the amended return.

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 • For the compromise penalties, the BIR has issued Revenue Memorandum
Order (RMO) No. 7-2015 to update the schedule of compromise penalties
specified under RMO No. 19-2007. If the taxpayer refuses to pay the suggested
compromise penalty, the violation shall be referred to the appropriate office for
criminal action.

RMC No. 24-2018 prescribes the RMC No. 24-2018 dated 13 April 2018
guidelines in the filing, receiving and
processing of the 2017 ITRs, including • Manner of filing of returns
their attachments.
1. Taxpayers who are mandated to use eBIRForms/ eFPS, and those who
opted to file manually shall file and pay in accordance with the following
guidelines:

Manner of Where to File and Pay Required Attachments

Filing
Where to When to
Submit Submit
With Payment
1. Manual • Authorized Agent Bank • AAB Upon filing
Filing (AAB) located within
the Revenue District
Office (RDO) where the
taxpayer is registered

• Revenue Collection • RDO

Officer (RCO) through
the MRCOS facility
under the jurisdiction of
the RDO in places where
there are no AABs
2. eFPS • Use the eFPS facility Concerned Within 15
Facility for ITRs available in the Large days from the
eFPS facility Taxpayer deadline of
Division filing, or date
• eBIRForms System (LTD)/ RDO of electronic
for filing of ITRs not filing of
available in the eFPS the return,
facility, but submit and whichever
pay using the eFPS comes later
facility, or

• File through the eFPS

facility and pay through
the PhilPass facility
of the Bangko Sentral
ng Pilipinas (BSP) for
banks availing the said
payment facility

Tax Bulletin | 5
 Manner of Where to File and Pay Required Attachments
Filing
Where to When to
Submit Submit
3. eBIRForms Electronically file using Within 15
System eBIRForms Package and pay days from the
to any of the following: deadline of
filing, or date
• AAB located within the • AAB of electronic
RDO where the taxpayer filing of
is registered the return,
whichever
• RCO through the • RDO comes later
MRCOS facility under
the jurisdiction of the
RDO in places where
there are no AABs

• For electronic payment

using the following
facilities:

1. GCash Mobile
Payment

2. Landbank of the
Philippines (LBP)
Linkbiz Portal,
for taxpayers
who have an ATM
account with LBP
and/or for holders
of Bancnet ATM/
Debit Cards

3. Development Bank
of the Philippines
(DBP) Tax Online
for holders of Visa/
Master Credit
Cards and/or
Bancnet ATM/Debit
Cards
No Payment Returns
1. eFPS • Use the eFPS facility Concerned Within 15
Facility for ITRs available in the LTD/ RDO days from the
eFPS facility deadline of
filing or date
• eBIRForms Systems of electronic
for filing of ITRs not filing of
available in the eFPS the return,
facility whichever
comes later
2. eBIRForms Electronically file using • RDO Within 15
System eBIRForms Package days from the
deadline of
filing, or date
of electronic
filing of
the return,
whichever
comes later

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• If both the eFPS facility and eBIRForms System are unavailable, the following
guidelines shall be observed:

Type of Where to File and Pay Required Attachments

Taxpayers
Where to When to
submit submit
With Payment Returns
Non- LTS • AAB located within the • AAB Within 15
registered territorial jurisdiction of the days from
taxpayers RDO where the taxpayer is the deadline
mandated registered of filing
to use the or date of
facilities of • RCO thru the MRCOS facility • RDO electronic
eFPS and under the jurisdiction of the filing of
eBIRForms RDO in places where there the return
► are no AABs, the return shall whichever
► be filed and the tax shall be comes later
 paid with the concerned

 • If the tax will be paid through
the following electronic
facilities, the ITR, together
with the proof of payment
generated by the above
facilities, shall be filed with
the RDO where the taxpayer
is duly registered:

• GCash Mobile Payment

• LBP Linkbiz Portal, for

taxpayers who have ATM
account with LBP and/
or for holders of Bancnet
ATM/Debit Card

• Development Bank of
the Philippines (DBP)
Tax Online for holders of
Visa/Master Credit Cards
and/or Bancnet ATM/
Debit Cards
For LTS- Any branch of LBP and DBP Concerned Upon filing
registered nearest to the LTS-registered LTS office
taxpayers taxpayer’s Head Office where the
taxpayer
is duly
registered
With No Payment Returns
For both non- LTS office/ RDO where the Concerned Upon filing
LTS and LTS- concerned taxpayer is duly LTS office/
registered registered. RDO where
taxpayers the taxpayer
is duly
registered

• If the eFPS facility is unavailable, all taxpayers mandated to use the facilities of
eFPS and eBIRForms shall file their returns through the eBIRForm facility, print
the submitted ITRs in three copies for purposes of payment of the income tax
due through the appropriate payment channels described above.

Tax Bulletin | 7
 • Should the eFPS facility and/or eBIRForms System subsequently become
available, all the mandated users shall resubmit their manually filed returns
with the eFPS or eBIRForms System, as the case may be, within 5 days from the
issuance of the relevant BIR Advisory on this.

• The disclosure of Supplemental Information under BIR Forms 1700 and 1701
is optional to the individual taxpayer filing the ITR covering and starting with
calendar year 2017 due for filing on or before 16 April 2018.

BOC Update

The BOC Memorandum provides for the Memorandum No. 2018-04-018 dated 13 April 2018
Deferment of Memorandum No. 2018-
04-002 dated 12 March 2018 requiring • BOC Memorandum No. 2018-04-002 dated 12 March 2018 was issued requiring:
the Submission and Counter-Checking of
the List of Importables. 1. All Importers/Consignees/Brokers to submit a copy of the list of importables
submitted and approved by the Accounts Management Office (AMO) upon
registration/accreditation, to relevant BOC offices to eliminate “consignees
for hire.”

2. All District and Subports Collectors, Deputy Collectors for Assessment, Chiefs
and Personnel of the Formal Entry Division (FED), and all others concerned,
to countercheck with the approved list before proceeding to process an
import entry and report to the AMO any importer who imports any goods not
found on the list for imposition of sanctions to ensure that only commodities
or items on the approved list is imported by consignee.

3. Additional items on the list of importables require approval from the AMO
prior to importation.

• Implementation of BOC Memorandum No. 2018-04-002 was deferred for a month

effective on 12 April to 11 May 2018 due to the sheer volume of importers
requesting for relevant documents.

(Editor’s Note: Signed by the BOC Commissioner on 16 April 2018)

BOI Update

The Announcement reminds all BOI- • The deadline of submission of annual reportorial requirements for Taxable Year
registered enterprises on the deadline (TY) 2017 are as follows:
and guidelines for submission of the
annual reportorial requirements. Report Deadline
BOI Form S-1 April 30
Audited Financial Statements (AFS) 30 days from electronic filing with the BIR
Income Tax Return (ITR) 30 days from electronic filing with the BIR

• Guidelines −

1. For the BOI Form S-1:

• The 25 April 2017 version of the BOI Form S-1 should be used.

• The Form should be prepared on a per project registration basis.

a. Consolidated reports shall not be accepted.

8 | Tax Bulletin
 • All mandatory fields (highlighted) of the BOI Form S-1 shall be duly
filled out.

a. Incomplete BOI Form S-1 shall not be accepted.

• The duly filled BOI Form S-1 (1) in Excel format saved in CD or DVD,
and (2) hard copy, shall be submitted to BOI.

a. The BOI Form S-1 submitted on or before 30 April 2018 with

incomplete or missing information or unfilled items or fields shall
be provisionally accepted.

b. The revised BOI Form S-1, together with the provisionally accepted
BOI Form S-1, may be submitted within 5 working days from such
provisional acceptance. Any submission beyond the said 5 working
days shall be penalized for late submission.

2. For the AFS/ITR:

• The scanned copy of AFS and ITR in PDF format saved in CD or DVD
shall be submitted.

a. Hard copies are no longer required for submission.

3. Non-compliance with any of the requirements shall result in:

• The non-acceptance of any submission, and

• The application of the corresponding penalty allowed under the

relevant laws and rules and regulations.

BSP Issuance

Circular No. 1000 provides for the BSP Circular No. 1000 dated 23 April 2018
Guidelines on the Settlement of Instant
Retail Payments. • The following provisions were created in the Manual of Regulations for Banks
(MORB)/Manual of Regulations for Non-bank Financial Institutions (MORNBFI) to
provide guidelines on settlement of instant retail payments.

• Sections X1206/41206Q/47O6S/4706P/4806N are added to provide for the

policy statement on the settlement of instant retail payments that it is the
thrust of the Bangko Sentral to ensure efficiency of payment systems in the
country. In line with this thrust, the Bangko Sentral requires BSP-supervised
Financial Institutions (BSFIs) participating in an automated clearing house (ACH)
for instant retail payments to ensure that this ACH provides for certainty of
settlement of the multilateral clearing obligations of the clearing participants.
For the purpose of these Sections, an instant retail payment, otherwise known
as fast payment, is defined as an electronic payment in which the transmission
of the payment message and the availability of “final” funds to the payee occur
in real time or near-real time on as near to a 24-hour and seven day (24/7)
basis as possible1.

____________________________________________________________

1
Based on the paper “Fast payments – Enhancing the speed and availability of
retail payments” of the Committee on Payments and Market Infrastructures,
Bank for International Settlements

Tax Bulletin | 9
 • Subsections X1206.1/41206Q.1/47O6S.1/4706P.1/4806N.1, which provide
for the minimum requirements for the operation of a settlement mechanism for
instant retail payments, are also added by this Circular.

• Subsection X1206.2/41206Q.2/47O6S.2/4706P.2/4806N.2 on risk

management are added to provide that the BSFIs participating in the instant
retail payment ACH shall ensure that they have the necessary operational and
liquidity risk management measures in place. The designs of the measures shall
be in accordance with Section and Subsections X179/4179Q/4198N of the
MORB/MORNBFI on Operational Risk Management and Section and Subsections
X176/4176Q/4195S/4195N on Liquidity Risk Management of the MORB/
MORNBFI.

• Subsection X1206.3/41206Q.3 are added to provide that the demand deposits

accounts (DDAs) maintained with the BSP for the settlement of net clearing
obligations arising from instant retail payment transactions shall form part
of the banks/QBs reserves against deposit and deposit substitute liabilities
pursuant to Section X354/4254Q of the MORB/MORNBFI.

• Subsection X1206.4/41206Q.4/47O6S.4/4706P.4/4806N.4 are added

to provide for supervisory enforcement actions that the Bangko Sentral
may deploy to promote compliance with the requirements set forth in these
Sections.

• This Circular shall take effect immediately upon its publication either in the
Official Gazette or in a newspaper of general circulation.

(Editor’s Note: BSP Circular No. 1000, s. 2018 was published in the Philippine Star
on 25 April 2018)

SEC Opinions and Issuances

SEC-OGC Opinion No. 18-07 dated 27 March 2018

A mere board resolution or approval Facts:

cannot enforce the qualification/
disqualification of a director of a The board of directors of P Co. passed a resolution to upgrade the qualifications of
corporation. the candidates for its board membership without amending its by-laws.

Issue:

May a corporation, through its board of directors, impose additional qualifications

for the members of the board?

Held:

No. A mere board resolution or approval is not sufficient to legally enforce a

qualification/ disqualification of a director because it has to be clearly provided for
in the corporate by-laws. Unlike a board resolution, by-laws are relatively permanent
and considered as continuing rules of action adopted by the corporation for its own
government. If a corporation wants to require additional qualifications for a director,
it must amend its by-laws.

10 | Tax Bulletin
 SEC-OGC Opinion No. 18-08 dated 20 April 2018

The power to amend corporate by- Facts:

laws may be delegated to the board
of directors if duly voted for by the B Co. seeks to amend its by-laws by including a provision wherein the board of
stockholders. directors alone can amend the said by-laws. The provision shall read: “.. the power
to amend, modify, repeal or adopt new by-laws may be delegated to the Board of
Directors by the affirmative vote of stockholders representing not less than 2/3 of
the outstanding capital stock[.]”

Issue:

May the proposed provision be allowed?

Held:

Yes. The proposed amendment merely gives the stockholders authority to delegate
the power to amend its by-laws if voted for by at least 2/3 of the owners of the
outstanding capital stock. This is allowed under Sec. 48 of the Corporation Code
since the proposed amendment does not provide for the actual or automatic
delegation of such power. To operationalize the delegation, owners of at least
2/3 of the outstanding capital stock shall pass the appropriate resolution in a
stockholders’ meeting.

SEC MC No. 6 adopts new and amended SEC Memorandum Circular No. 6 series of 2018 dated 6 April 2018
accounting standards as part of its rules
and regulations on financial reporting. The SEC approved the adoption of the following pronouncements to the Philippine
Financial Reporting Standards:

• Philippine Financial Reporting Standard (PFRS) 16 – to be applied for annual

periods beginning on or after 1 January 2019;

• Disclosure Initiative [amendments to Philippine Accounting Standard (PAS) 7];

and

• Recognition of Deferred Tax Assets for Unrealized Losses (Amendments to

PAS 12).

(Editor’s Note: Published in the Manila Standard and Philippine Daily Inquirer on 12
April 2018)

SEC MC No. 7 provides for the SEC Memorandum Circular No. 7 series of 2018 dated 20 April 2018
amendment to the requirements
on nomination and election of an The SEC has resolved to amend Rule 38.2.7 of the SRC rules by providing a two-
independent director under the year limit on the disqualification of a nominee for independent directorship who
Implementing Rules and Regulations of has previously engaged in a transaction with a covered company, or any of its
the Securities Regulation Code. related companies, where he seeks to be nominated.

(Editor’s Note: Published in the Manila Bulletin and The Manila Times on 26 April
2018)

Tax Bulletin | 11
SEC MC No. 8 provides for new rules SEC Memorandum Circular No. 8 series of 2018 dated 20 April 2018
for publicly-listed companies as to their
choice of external auditor and audit In order to improve the ranking of the Philippines in the ‘Protecting the Minority
committee composition. Investors’ indicator of the Ease of Doing Business Report, the SEC has resolved to
adopt the following rules requiring all publicly-listed companies to:

• Seek shareholders’ approval on any change/s in the company’s external auditor;

and

• To have an audit committee that is exclusive to board members.

(Editor’s Note: Published in the Manila Bulletin and The Manila Times on 26 April
2018)

Court Decisions

Moog Controls Corporation – Philippine Branch vs. CIR

CTA (Second Division) Case Nos. 9077 promulgated 22 February 2018

Section 249 of the Tax Code, as Facts:

amended by the TRAIN Law, prescribes
that in no case shall the deficiency Respondent CIR assessed Petitioner Moog Controls Corporation – Philippine Branch
and delinquency interest be imposed (Moog) for alleged deficiency income tax for fiscal year ended 3 October 2009.
simultaneously. Moog protested the assessment which was denied by the CIR on 8 June 2015. Moog
filed a Petition for Review at the CTA to dispute the BIR’s adverse decision.

The CTA Second Division, in its original decision dated 3 January 2018, partially
granted the petition and reduced the deficiency tax assessment and penalties.
Both parties filed a Motion for Reconsideration. Moog, in particular, argued that
the simultaneous imposition of both deficiency and delinquency interest is already
prohibited under the provisions of Republic Act 10963 or the TRAIN Law.

Issue:

Can deficiency and delinquency interest be imposed simultaneously?

Ruling:

No. Section 249 of the Tax Code, as amended by the TRAIN Law, prescribes that in
no case shall the deficiency and delinquency interest be imposed simultaneously.

The CTA agreed that the provisions of TRAIN have an impact on the interests
imposed on Moog’s amount payable but only insofar as that portion of interest
that will run starting 1 January 2018 onwards. The deficiency interest is imposed
on the unpaid amount of tax from the time prescribed for its payment by law until
the amount is fully paid while the delinquency interest is imposed on the delay
in payment of the unpaid amount which consists of the basic tax, surcharge and
deficiency interest and runs from the time prescribed for their payment until full
payment of the unpaid amount.

12 | Tax Bulletin
 The running or charging of interest for both types of interest stops from full
payment. In the instant case, full payment will happen only after 3 January 2018,
the promulgated date of the original assailed CTA decision.

Thus, in addition to the basic deficiency tax, Moog was ordered to pay (a) 20%
deficiency interest from 15 February 2010 until 31 December 2017, (b) 20 %
delinquency interest from 8 June 2015 until 31 December 2017, and (c) 12%
delinquency interest from 1 January 2018 until the amount is fully paid.

(Editor’s Note: In Pangasinan III Electric Cooperative, Inc. vs. Commissioner of

Internal Revenue, CTA Case Nos. 8915 promulgated 19 March 2018, the CTA First
Division applied the 12% rate for deficiency and delinquency interest even before the
effectivity of the TRAIN Law on 1 January 2018)

CIR vs. G & W Architects, Engineers and Project Consultants Co.

CTA (En Banc) Case Nos. 1449 promulgated 21 March 2018

A “Build-To-Own” or “Build-Your-Own” Facts:

scheme, which is actually a sale of real
property under the circumstances, is Petitioner CIR assessed Petitioner G&W Architects, Engineers and Project
subject to EWT and DST. Consultants, Co. (G&W) for alleged deficiency EWT and DST for 2004 covering the
transfer of 340 units in four condominium projects.

G&W protested the assessment based on four BIR rulings issued between 2003 and
2007, where the BIR confirmed that its “Build-To-Own” or “Build-Your-Own” scheme
is not a taxable transaction as it does not constitute a sale or disposition of real
property. Under the arrangement, unit owners pool their funds for the construction
of condominium units and execute the following agreements:

a. Contract to Manage and Execute the Construction between G&W and the unit
owners;
b. Trust Agreement established by the unit owners naming a trustee to hold in
trust the pooled funds of the unit owners and the land where the project will be
located; and,
c. Depository and Disbursing Agreements between the trustee and the unit
owners.

As the CIR failed to act on the protest, G&W filed Petitions for Review with the CTA.

At the CTA, the CIR alleged that under the so-called co-development/building-to-
own/build-your-own and similar schemes, the developer simply made it appear
that it merely managed the construction of the condominium projects and that
the funds as contributed by the individual investors were management fees only.
The assignment and delivery of the developed units to individual investors were
supposedly not taxable being merely a transfer of property held in trust by the
trustee for the individual trustors. The CIR claims that the build-to-own concept is
considered pre-selling that should have been subjected to EWT and DST. The CIR
also noted that it issued RMC 55-2010 stating that G&W misrepresented facts in the
request for ruling, declared the rulings as void, and ordered a tax investigation.

Tax Bulletin | 13
 The CTA First Division ruled that the transaction between G&W and the unit owners
was for a sale of services, not a sale of property. G&W only earned fees for the
management and construction of the units. It held the CIR failed to establish
the fact of actual sale of the condominium units from G&W to the unit owners.
The construction funding which the BIR considered as payment for the sale of
the condominium units is actually held in trust by the trustee bank under the
Agreement/Depository and Disbursement Agreement, which will be exclusively used
for the construction of the project and the purchase of the land. It added that G&W
had no complete control over the said amount, hence, no part of the said fund can
be considered as payment for the transfer of the condominium units from which the
assessed EWT can be deducted.

Aggrieved, the BIR filed a Petition for Review at the CTA En Banc.

Issue:

Is the “Build-To-Own” or “Build-Your-Own” scheme considered a sale of real property

that is subject to EWT and DST?

Ruling:

Yes. The CTA En Banc reversed the ruling of the CTA First Division and held that
G&W is not merely the project manager of the condominium projects but the owner
thereof, who is liable for EWT and DST.

G&W’s claim that it is merely a project manager is belied by its own evidence,
particularly the Contract to Manage and Execute the Construction, which provides
that G&W has the authority to terminate the contract in any of the events of
default and identify a substitute client or buyer who will assume the corresponding
remaining obligation. Such right to terminate was not similarly given to G&W’s
clients.

The CTA En Banc concurred with the conclusion of Presiding Justice Roman G.
Del Rosario, who registered his dissenting opinion in the CTA Division’s decision
and insisted that G&W’s subsequent or contemporaneous acts must be considered
to reveal its true intention. G&W advertised the condominium units in its website,
consistent with the seller’s act. It also secured a license to sell from the Housing
and Land Use Regulatory Board, which would have been unnecessary if it was just a
contractor or project manager.

University Physicians Services Inc. – Management Inc. vs. CIR

When a corporation overpays its
Supreme Court (Third Division) G.R. No. 205955, promulgated 7 March 2018
income tax liability at the close of the
taxable year, it has two options: (1)
Facts:
to be refunded or issued a TCC, or (2)
to carry over such overpayment to
Petitioner University Physicians Services Inc. – Management Inc. (UPSI-MI) filed its
the succeeding taxable quarters to be
Annual Income Tax Return (ITR) for the year ended 31 December 2006 and chose
applied as tax credit against income tax
the option “To be issued a tax credit certificate” for its excess creditable taxes of
due.
P5.1 million.

The carry-over option, once taken,

UPSI-MI changed its taxable period from calendar to fiscal year, and filed an Annual
becomes irrevocable such that the
ITR for the short period ended 31 March 2007, where it declared the 2006 excess
taxpayer cannot later on change its
creditable taxes as “Prior Year’s Excess Credit.” On the same day, UPSI-MI filed an
mind to claim a cash refund or issuance
amended Annual ITR for the short period ended 31 March 2007, where it removed
of a TCC for the overpayment or excess
P2.9 million of the excess creditable taxes from “Prior Year’s Excess Credit,” which
income tax credit.
represented creditable withholding taxes (CWTs) for the fourth quarter of 2006.

14 | Tax Bulletin
UPSI-MI then filed a claim for refund and/or issuance of a Tax Credit Certificate
(TCC) with the BIR of this P2.9 million unutilized 2006 CWTs. As the BIR did not act
on the claim, UPSI-MI filed a Petition for Review with the Court of Tax Appeals (CTA).

The court denied the claim and ruled that UPSI-MI’s inclusion of the 2006 CWTs in
its 2007 original ITR as Prior Year’s Excess Credit, although allegedly inadvertent,
showed that it carried over the amount to the succeeding taxable period. The
CTA explained that the amendment of the 2007 ITR cannot undo UPSI-MI’s actual
exercise of the carry-over option in the original 2007 ITR. As UPSI-MI exercised the
carry-over option under Section 76 of the National Internal Revenue Code (NIRC) of
1997, it is barred from claiming a refund of its 2006 CWTs.

Issue:

Is UPSI-MI entitled to the refund of its 2006 CWTs?

Ruling:

No, UPSI-MI is not entitled to the refund.

Under Section 76 of the NIRC, there are two options available to the corporation
whenever it overpays its income tax for the taxable year: (1) to carry over and apply
the overpayment as tax credit against the estimated quarterly income tax liabilities
of the succeeding taxable year until fully utilized; and (2) to apply for a cash refund
or issuance of a TCC within the prescribed period.

Once a taxpayer opts to carry over its excess creditable tax, it may not subsequently
elect a refund or issuance of TCC, as the carry-over option is irrevocable.

The rationale of the rule is to avoid confusion and complication that could be
brought about by the flip-flopping of options. It addresses the situation whereby
a taxpayer, after claiming a cash refund or applying for the issuance of a TCC, and
during the pendency of such claim or application, carries over the same excess
creditable taxes and applies it against the income tax liabilities of the succeeding
year. The rule not only eases tax administration but also obviates double recovery
of the excess creditable tax.

The irrevocability rule is limited to the option of carry-over. Hence, if a taxpayer

opted for a refund, it may subsequently change its choice to a carry-over of the
excess creditable taxes in the following taxable year. But once it shifts to a carry-
over, it may no longer revert to its original choice of refund due to the irrevocability
rule.

Despite its initial option in the 2006 Annual ITR to refund its 2006 excess CWTs,
UPSI-MI subsequently carried over the 2006 excess CWTs to the following period, as
indicated in its 2007 short-period ITR. UPSI-MI constructively chose the option of
carry-over, and thus, the irrevocability rule forbade it to revert to its initial choice.

It does not matter that UPSI-MI had not actually benefited from the carry-over on
the ground that it did not have a tax due in its 2007 short period ITR. It may neither
insist that the insertion of the carry-over in the 2007 ITR was by mere mistake or
inadvertence as the irrevocability rule admits no qualifications or conditions.

UPSI-MI, however, remains entitled to the benefit of carry-over and, thus, may apply
the 2006 overpaid income tax as tax credit in succeeding taxable years until fully
exhausted. This is because, unlike the remedy of refund or TCC, the option of carry-
over under Section 76 is not subject to any prescriptive period.

Tax Bulletin | 15
SGV | Assurance | Tax | Transactions | Advisory

About SGV & Co. SGV & Co. maintains offices in Makati, Cebu, Davao, Bacolod, Cagayan de Oro,
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16 | Tax Bulletin