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209890-2017-Opulent Landowners Inc. v. Commissioner of PDF
209890-2017-Opulent Landowners Inc. v. Commissioner of PDF
DECISION
CASTAÑEDA, JR. , J : p
THE CASE
In this Petition for Review, petitioner Opulent Landowners, Inc. seeks for the Court to
declare null and void the following de ciency assessments by respondent Commissioner of
Internal Revenue:
THE FACTS
Petitioner alleges that it is a domestic corporation duly organized and existing under and
by virtue of the laws of the Philippines, with TIN 003-937-632-000 and registered with the
Securities and Exchange Commission on August 4, 1989, with SEC Company Registration No.
0000166739. The principal purpose for which it was created is to acquire by purchase, lease,
donation or otherwise, and to own, use, improve, develop, subdivide, sell, mortgage, exchange,
lease, develop and hold for investment or otherwise, real estate of all kinds. 1
Respondent is the Commissioner of the Bureau of Internal Revenue (BIR), duly appointed
to exercise the powers and perform the duties of her o ce including, inter alia, the power to
decide disputed assessments, refunds of internal revenue taxes, fees, other charges, and
penalties imposed in relation thereto, or other matters arising under the Tax Code. He holds
office at the BIR National Office Building, Agham Road, Diliman, Quezon City.
On May 25, 2010, petitioner received the Letter of Authority No. 124-2010-00000061 2
dated May 14, 2010 from respondent. Meanwhile, petitioner led several Waivers of the
Defense of Prescription. 3
On January 17, 2014, 4 petitioner received respondent's Preliminary Assessment Notice
(PAN) with attached Details of Discrepancies. On February 3, 2014, 5 petitioner led its written
reply to the PAN. CAIHTE
On May 5, 2014, 6 petitioner received respondent's Formal Letter of Demand (FLD) with
attached Details of Discrepancies and Assessment Notice Nos. ELTAD-II-IT-09-0010, ELTAD-II-
VT-09-0009, ELTAD-II-DS-0900006 and ELTAD-II-IE-09-0003, all dated April 30, 2014 and
representing petitioner's deficiency Income Tax, VAT, DST and IAET, respectively.
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On June 4, 2014, 7 petitioner led an Administrative Protest — Request for
Reconsideration against the FLD and prayed for the cancellation and withdrawal of the
proposed assessments. On October 28, 2014, petitioner filed a Supplemental Protest. 8
On November 19, 2014, 9 petitioner received respondent's Final Decision on Disputed
Assessment (FDDA). On December 19, 2014, 1 0 petitioner filed the instant Petition for Review.
On March 30, 2015, respondent led her Answer 11 where she pertinently raised the
following Special and Affirmative Defenses: 1 2
"SPECIAL AND AFFIRMATIVE DEFENSES
xxx xxx xxx
7. Petitioner is being assessed for de ciency Income Tax and Value-Added
Tax resulting from alleged under declared sales amounting to P1,181,646.49. Petitioner
argues that such is without merit and lacks factual basis since it was only a result of a
comparison of different data reported under the VAT RELIEF System, Tax Reconciliation
System (Creditable Withholding Tax Withheld from petitioner as reported by third parties),
Summary Alphalist of Creditable Withholding Tax) vis-à-vis the declaration made per
Summary List of Sales (SLS).
8. Petitioner's contention is devoid of merit. The RELIEF System which stands
for 'Reconciliation of Listing for Enforcement' was purposely (sic) to detect tax leaks by
matching the data available under the Bureau's Integrated Tax System (ITS) with data
gathered from third party sources. Through the consolidation and cross-
referencing of third party information, discrepancy reports on sales and
purchases can be generated to uncover under declared income and over
claimed purchases (goods and services). Timely recognition and accurate
reporting of unregistered taxpayers and non-filers can be made possible.
9. The Tax Reconciliation System (TRS) on the other hand is geared towards
enhancing revenue collection by computerized matching of data available under the
Bureau's Integrated Tax System (ITS). Through the consolidation and cross-
referencing of data from withholding agents (WAs) and declaration of income
recipients, discrepancy reports can be generated to uncover violations on tax
rules and regulations such under declaration of income, non-declaration of
income, under remittance and/or non-remittance of taxes withheld, over
withholding, under withholding, over declaration of credits to name a few.
Timely recognition and accurate reporting of unregistered taxpayers and non- lers will
also be possible.
xxx xxx xxx
11. Respondent further submits that petitioner's sales transactions are directly
related to its customers' purchases and ultimately to the Creditable Withholding Taxes
withheld from the payments made to petitioner. Petitioner argued that the discrepancies
were simply a result of a difference in the method of reporting income by its clients.
However, based on respondent's evaluation, petitioner did not introduce any evidence to
support such allegations. Therefore, the ndings in the Formal Letter of Demand for
de ciency Income Tax and Value-Added Tax (VAT) resulting from understated sales in
the amount of P1,181,646.49 were reiterated in respondent's Final Decision on Disputed
Assessment (FDDA).
xxx xxx xxx
12. Petitioner is being assessed for de ciency Income Tax and Value-Added
Tax resulting from alleged undeclared income amounting to P7,164,425.73 arising from
collection of receivables from its tenants. Petitioner argues that the amount represents
the payments of petitioner's lessees for their Electric Consumption, Water Consumption,
Common Utility Services Area Fees or CUSA and other charges. Petitioner further argues
that these expenditures are not the operational expenses of petitioner but the operational
expenses of its lessees, therefore, not subject to Income Tax and Value-Added Tax.
13. x x x By claiming these expenses as deductions, petitioner was bene ted
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by a lowered taxable income and still received payments from its lessees to cover such
expenses. Therefore, it is but proper that the corresponding income tax be assessed from
those payments received by petitioner from its lessees amounting to P7,164,425.73 for
taxable year 2009.
14. Consequently, petitioner is also liable to the corresponding Value-Added
Tax (VAT) for such collections pursuant to Section 108 of the Tax Code which
specifically provides:
xxx xxx xxx
16. Petitioner is being assessed for de ciency Income Tax and Value-Added
Tax resulting from alleged undeclared income out of unaccounted disbursement
amounting to P4,587,870.68. Petitioner argues that such assessment is without merit
and lacks factual basis. According to petitioner, the amount represents the payments of
petitioner's lessees for their Electricity Consumption and are not the operational
expenditures of petitioner. Petitioner further argues that such payments were not
re ected in its income tax return since it has no right to claim such operational expenses.
DETACa
32. x x x Petitioner citing several BIR Rulings and the decision of the Court of
Appeals in the case of Commissioner of Internal Revenue vs. Filinvest Development
Corporation and Filinvest Alabang, Inc. (CA-G.R. No. SP No. 74510, January 26, 2005)
argues that inter-corporate advances are analogous to capital contribution and are not
subject to documentary stamp tax as there is no taxable instrument issued to evidence or
document the loan obligation.
xxx xxx xxx
35. Based on the foregoing decision and the above quoted Revenue
Regulation, it is not a prerequisite that there exist a formal debt instrument in order for the
loan agreement to be subject to Documentary Stamp Tax. A mere journal or cash
voucher evidencing such advances are sufficient for such imposition.
xxx xxx xxx
38. Petitioner cited several jurisprudence to disprove respondent's ndings
that petitioner failed to pass the immediacy test. It further argued that in order to
determine the reasonable needs of the corporation, it is best to look into the intent,
purpose, nancial liquidity and stability of the business and not on the immediate
disposition of its excess profits.
xxx xxx xxx
42. Respondent's audit examination reveals that petitioner failed to prove the
accumulation of earnings is based on the reasonable needs of the company. Petitioner
alleged that there exist an actual plan as to disposition of excess pro ts, however, such
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contention was supported by a mere photocopy of secretary's certi cate certifying the
appropriation of retained earnings in the amount of P110,000,000.00 to serve as standby
funds of the corporation for the implementation of its contemplated projects.
xxx xxx xxx
44. Petitioner also argues that the computation of respondent on the
Improperly Accumulated Earnings Tax (IAET) is erroneous as it failed to include the
amount of P177,036,144.00 as part of the paid-up capital for purposes of determining
the amount that may be retained (100% of paid-up capital).
45. Respondent strongly differs. Pursuant to Revenue Memorandum Circular
No. 35-2011, paid-up capital is defined as follows:
For purposes of this RMC, and in accordance with RR No. 2-2001, the
amount that may be retained, taking into consideration the accumulated
earnings within the 'reasonable needs of the business' as determined under
Section 3 of the said RR, shall be 100% of the paid-up capital or the
amount contributed to the corporation representing the par value
of the shares of stock, hence, any excess capital over and above
the par shall be excluded.
46. Petitioner submits that these deposits are related to the eventual issuance
of petitioner's shares of stock hence should be part of petitioner's share capital.
Respondent maintains the de nition of paid-up capital as referring only to the par-value
of the shares of stock. In addition, the amount of deposit paid as subscription may
include the excess over in above the par value of the subscribed shares which are
explicitly excluded by the above quoted provision of the RMC.
47. While respondent admits the existence of Philippine Accounting
Standards (PAS), rules and regulations issued purposely to implement the provisions of
the Tax Code should be given much weight. In case of conflict, the latter should prevail."
On July 7, 2015, the parties submitted their Joint Stipulation of Facts and Issues. 1 3 On
July 20, 2015, the Court issued a Pre-Trial Order. 1 4
During the hearing, petitioner presented witnesses Ms. Josephine G. Bautista 1 5 —
Finance O cer of petitioner, and Mr. Prudencio F. Tatunay 1 6 — Court-commissioned
Independent Certi ed Public Accountant (ICPA). Petitioner also led its Formal Offer of
Evidence 1 7 on December 22, 2015.
On the other hand, respondent presented witness Ms. Melinda M. Rugayan 1 8 — Revenue
Officer II of the BIR. On March 10, 2016, respondent filed her Formal Offer of Evidence. 1 9
Consequently, on May 18, 2016, 2 0 petitioner presented its rebuttal witness, Mr. Gary Tan
J a o 2 1 — Head of the Engineering Department of Basic Holdings, Inc. On May 25, 2016,
petitioner led its Formal Offer of Evidence for the Petitioner (Arising from the Presentation of
Rebuttal Witness). 2 2
On June 3, 2016, the Court issued a Resolution 2 3 directing the parties to submit their
memoranda, among others. On September 5, 2016, respondent led his Memorandum 2 4 while
on September 19, 2016, petitioner filed its Memorandum. 2 5
On September 22, 2016, 2 6 the Court issued a Resolution submitting the case for
decision. Hence, this Decision. ETHIDa
THE ISSUE
The parties submitted this lone issue for the consideration of the Court:
"Whether the petitioner is liable to pay Thirty Four Million Six Hundred Thirty Five
Thousand Six Hundred Sixty Two Pesos and 19/100 (P34,635,662.19) representing
alleged de ciency Income Tax, Value-Added Tax, and Documentary Stamp Tax, and
Improperly Accumulated Earnings Tax, inclusive of surcharges and interest for taxable
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year 2009." 2 7
THE RULING
Further, it contends that the comparison of the amounts arising from (a) the Summary
List of Purchases of Third Parties thru the VAT relief system; (b) the TRS or via the Creditable
Withholding Tax Withheld by petitioner as reported by third parties; (c) the SAWT or Summary
Alphalist of Creditable Withholding Tax; and (d) the declaration made per SLS or Summary List
of Sales extracted from the VAT Relief system, would not result to the same amount. Third party
taxpayers do not necessarily adopt the same accounting method in keeping their books of
accounts with that of the petitioner.
Finally, petitioner also asserts that the accounting of transactions for Income Tax and
Value Added Tax creates a discrepancy because for income tax purposes, petitioner reports its
income using the accrual method while for VAT purposes, it applies the cash method of
accounting which results to a timing difference in the reporting of its income per ITR vis-à-vis its
gross receipts per VAT returns. 2 9
After careful evaluation, the Court finds petitioner's contention partly correct.
Section 5 (B) of the NIRC of 1997, provides:
"SECTION 5. Power of the Commissioner to Obtain Information, and to Summon,
Examine, and Take Testimony of Persons . — In ascertaining the correctness of any
return, or in making a return when none has been made, or in determining the
liability of any person for any internal revenue tax , or in collecting any such
liability, or in evaluating tax compliance, the Commissioner is authorized:
(B) To obtain on a regular basis from any person other than the person whose
internal revenue tax liability is subject to audit or investigation. x x x" (Emphasis
supplied)
Based on the above cited provision, to ascertain the correctness of any return or to
determine the tax liability of any person, the Commissioner of Internal Revenue is authorized to
obtain any information, on a regular basis, from any person other than the petitioner whose tax
liability is subject to audit or investigation.
Consequently, respondent may rely on the third party information generated through its
RELIEF system based on the data submitted by the third parties.
I n Medicard Philippines, Inc. v. Commissioner of Internal Revenue 3 0 citing SMI-Ed
Philippines Technology, Inc. v. Commissioner of Internal Revenue, 3 1 the Supreme Court held:
"x x x under the RELIEF System, the presumption that the tax returns are in accordance
with law and are presumed correct since these are led under the penalty of perjury are
easily rebutted and the taxpayer becomes instantly burdened to explain a purported
discrepancy."
Thus, the burden of proof rests upon petitioner to prove otherwise.
• RIVERA, ROY C. — per our validation, the creditable withholding tax claimed by the
Company was declared under the name of "Rivera, Roy C." However, the Company
reported the related sales on its 2009 Summary List of Sales (SLS) as "RDEX Food
Int'l Phil., Inc." — wholly-owned by Rivera, Roy C. (the same TIN appears in the COR).
The difference refers to common and other charges which were not subjected to
withholding taxes.
• ST. PETER LIFE PLAN, INC. — based on our veri cation, we have noticed the
following:
SLS vs. 2307 & SAWT — per our veri cation, the difference refers to common
charges, parking and other charges (included in the SOA) which were not subjected
to withholding taxes.
SLS vs. SAWT — the difference of P83,035.68 represents Other Charges not
subjected to EWT.
• UY, MADY T. — as per our veri cation, the claimed creditable withholding taxes
amounting to P4,000.00 is equivalent to P80,000.00 sales (P4,000.00/5%), this
was reported by the company on its 2009 Summary List of Sales (SLS). No
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documents found to prove the discrepancy amounting to P213,375.00
(P293,375.00 less P80,000.00) as alleged by the BIR." 3 2
Upon verification, the Court notes the following observations:
• AIR PHILIPPINES CORP. and ST. PETER LIFE PLAN, INC.
The Court Commissioned ICPA, as an alternative procedure, simply performed a
reconciliation of petitioner's record of SAWT, 3 3 SLS 3 4 and BIR Form No. 2307.
While the ndings of the ICPA were partly true, it does not adequately controvert the
allegation of undeclared sales of Air Philippines Corp. in the amount of P352,649.50 and sales
of St. Peter Life Plan, Inc. in the amount of P212,951.99. Although petitioner presented its
o cial receipts 3 5 and billing statements, 3 6 these documents do not fully substantiate its
alleged undeclared sales.
The prima facie presumption is that the assessment made by BIR is correct and that in
preparing the same, the BIR personnel regularly performed their duties. This rule for tax initiated
suits is premised on several factors other than the normal evidentiary rule imposing proof
obligation on the petitioner-taxpayer: the presumption of administrative regularity; the likelihood
that the taxpayer will have access to the relevant information; and the desirability of bolstering
the record-keeping requirements of the NIRC. 3 7
Thus for petitioner's failure to substantiate, respondent's assessment is sustained.
• GARCIA, RODRIGO H.
As explained by the ICPA, the reporting of creditable withholding tax claimed by petitioner
as re ected in the SAWT were declared under the name of "Garcia, Rodrigo H.," while the sales
reported in its SLS were declared under the trade name "Homebankers Realty." In this regard, a
perusal of the Summary List of Sales (SLS), 3 8 o cial receipts, 3 9 and billing statements 4 0
shows that Homebankers Realty is wholly-owned by Mr. Garcia, Rodrigo.
However, upon checking the Certi cate of Registration (COR) with the BIR 4 1 of Mr.
Garcia, Rodrigo H., the TIN appearing therein is 100-182-459-000 which is different from the TIN
001-292-994 used in the documents presented by the petitioner as asserted by the ICPA.
Nonetheless, petitioner su ciently proved that the income declared under the name of
"Garcia, Rodrigo H." and income declared under the trade name "Homebankers Realty" is
considered one and the same. The billing statements 4 2 bear the company name Homebankers
Realty with owner name Garcia, Rodrigo H. while the o cial receipts 4 3 were issued to Garcia,
Rodrigo H. with business style/name Homebankers Realty. Thus, petitioner's argument must be
given merit.
Section 4.114-3 (a) (c) of Revenue Regulations No. 16-2005, requires the submission of
the summary list of sales which must contain the monthly total sales/income subject to
VAT .
On the other hand, Section 2 (A) of Revenue Regulations No. 2-2006 de nes Summary
Alphalist of Withholding Agents of Income Payments Subjected to Withholding Tax at Source
(SAWT) as a consolidated alphalist of withholding agents from whom income was earned or
received and subjected to withholding tax .
Thus, the difference between the SAWT and SLS in the amount of P5,357.16 refers to
common charges not subjected to withholding tax, to wit:
Income per Income per Common Exhibit
Month Page
SAWT SLS Charges No.
January P9,000.00 P9,446.43 P446.43 P-29-4 415
February 9,000.00 9,446.43 446.43 P-29-4 416
March 9,000.00 9,446.43 446.43 P-29-4 417
April 9,000.00 9,446.43 446.43 P-29-4 418
May 9,000.00 9,446.43 446.43 P-29-4 419
June 9,000.00 9,446.43 446.43 P-29-4 420
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June 9,000.00 9,446.43 446.43 P-29-4 420
July 9,000.00 9,446.43 446.43 P-29-4 421
August 9,000.00 9,446.43 446.43 P-29-4 422
September 9,000.00 9,446.43 446.43 P-29-4 423
October 9,000.00 9,446.43 446.43 P-29-4 424
November 9,000.00 9,446.43 446.43 P-29-4 425
December 9,000.00 9,446.43 446.43 P-29-4 426
Total P108,000.00 P113,357.16 P5,357.16
On the basis of the foregoing, petitioner has no undeclared sales in the amount of
P108,000.00. acEHCD
On the other hand, petitioner argues that the amount represents payment of its lessees
for their electricity consumption, water consumption, common utility services area fees or CUSA
and other charges. As such, those expenditures are not their operational expenses but the
operational expenditures of its lessees and therefore, not subject to Expanded Withholding Tax,
Income Tax and Value Added Tax.
Moreover, it also asserts that it is inherent in the real estate business, more particularly
those engaged in lease operations, that the electricity and water meter is registered under the
name of the lessor considering that the nature of its lessees' tenacy is temporary. The common
set up is the existence of main electricity and water meter. To determine the actual usage of
each lessee, a sub-meter is installed by the lessor. 4 9
The ICPA disclosed that electricity and water bills charged to tenants were not included in
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the claimed expenses of petitioner, computed as follows: 5 0
Water Bills Electricity
Total Water Total
Month Charged to OPEX Bills Charged OPEX
Bills Electricity Bill
Tenants to Tenants
January P47,687.05 P29,028.09 P18,658.96 P456,460.82 P492,488.78 P(36,027.96)
February 49,801.52 20,285.76 29,515.76 605,080.59 382,552.74 222,527.85
March 51,908.08 25,359.24 26,548.84 603,981.30 525,044.75 78,936.55
April 56,859.07 20,372.10 36,486.97 643,482.81 533,531.62 109,951.19
May 52,903.22 28,748.03 24,155.19 608,401.95 567,218.52 41,183.43
June 46,123.62 23,874.08 22,249.54 586,399.34 552,298.50 34,100.84
July 49,237.87 19,596.75 29,641.12 590,283.37 492,752.52 97,530.85
August 53,678.45 29,980.57 23,697.88 532,714.42 514,638.71 18,075.71
September 49,016.09 27,803.90 21,212.19 506,693.17 470,090.13 36,603.04
October 38,399.96 25,190.78 13,209.18 465,296.59 446,848.83 18,447.76
November 42,908.31 28,184.37 14,723.94 486,210.59 415,399.10 70,811.49
December 48,945.16 19,328.54 29,616.62 491,952.38 391,648.67 100,303.71
Total P587,468.40 P297,752.21 P289,716.19 P6,576,957.33 P5,784,512.87 P792,444.46
Based on ICPA's examination, petitioner over-claimed its Operating Expenses by
P14,400.20, computed as follows:
Claimed
Total Bill
Charged to Operating
Month (Water &
Tenants Expense (Light,
Electricity)
Water & Power)
January P504,147.87 P521,516.87 P(17,369.00)
February 654,882.11 402,838.50 252,043.61
March 655,889.38 550,403.99 105,485.39
April 700,341.88 553,903.72 146,438.16
May 661,305.17 595,966.55 65,338.62
June 632,522.96 576,172.58 56,350.38
July 639,521.24 512,349.27 127,171.97
August 586,392.87 544,619.28 41,773.59
September 555,709.26 497,894.03 57,815.23
October 503,696.55 472,039.61 31,656.94
November 529,118.90 443,583.47 85,535.43
December 540,897.54 410,977.21 129,920.33
Total Light, Water, &
Power of OPI P7,164,425.73 P6,082,265.08 P1,082,160.65
Less: Light, Water &
Power per AFS P1,096,560.85
Difference P(14,400.20)
While petitioner adduced before this Court its Billing Statements to its tenants, 5 1
Meralco Statement of Accounts, 5 2 Manila Water Statement of Accounts 5 3 and reconciliation 5 4
to account the difference of P14,400.20, these pieces of evidence are insu cient. The Court
cannot ascertain how the amounts presented therein were arrived.
At any rate, despite the insu ciency of the reconciliation to account the difference of
P14,400.20, petitioner still proved that the Collection of Other Receivables-Tenants were mere
reimbursements of electricity and water consumptions.
In Greenhills Properties, Inc. vs. Commissioner of Internal Revenue 5 5 citing Officemetro
Philippines, Inc. (formerly Regus Centres, Inc.) vs. Commissioner of Internal Revenue, 5 6 the CTA
Second Division held:
"The BIR in its various rulings, held that association/condominium dues,
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membership fees and other assessment/charges collected from the members, which are
merely held in trust and which are to be used solely for administrative expenses in
implementing their purpose(s), viz., to protect and safeguard the welfare of the owners,
lessees and occupants; provide utilities and amenities for their members, and from which
the corporation could not realize any gain or pro t as a result of their receipt
thereof, must not be included in said corporation's gross income. This means
that the same are not subject to income tax and to withholding tax ."
Thus, the assessment on Collection of Other Receivables-Tenants is upheld but in the
reduced amount of P14,400.20.
c. Unaccounted Disbursements (SAWT of Meralco) in the amount of
P4,587,870.68
Respondent alleged that based on data extracted from the Conglomerate Master le thru
Computerized Accounting Audit Tools and Technique System (CAATTS), the income payment to
Meralco amounting to P4,587,870.68 was discovered. This amount was reported by Meralco on
its SAWT, however, this was not reported/accounted by petitioner both in its Income Tax Return
and Financial Statements. 5 7
Petitioner counter-argued that the allegation lacks factual basis because the amount
represents the payment of its lessees for their electricity consumption. As such, the subject
cost is not its expenditure but the expenditure of its lessees. Petitioner adds that the main
electric meter that measures the electric consumption is registered under its name. Therefore, it
follows that the monthly billing issued by Meralco and the payment made will be for its account.
58 AScHCD
The ICPA provided a summary 5 9 of the o cial receipts representing payments made by
petitioner to Meralco and its corresponding statements of account 6 0 under the account name
of the petitioner, as follows:
I n Commissioner of Internal Revenue vs. Hantex Trading Co., Inc . 67 citing Collector of
Internal Revenue vs. Benipayo, 6 8 the Supreme Court held:
"x x x in order to stand judicial scrutiny, the assessment must be based on facts.
The presumption of the correctness of an assessment, being a mere presumption, cannot
be made to rest on another presumption."
Thus, the unaccounted disbursement should not be treated as undeclared income for
being presumptive in nature.
d. Unsupported Creditable Withholding Tax (CWT) in the amount of
P25,322.66
Respondent's audit examination revealed that creditable withholding tax in the amount of
P25,322.66 is unsubstantiated. On the other hand, petitioner does not dispute 6 9 respondent's
assessment and as such, the Court upholds the same.
In sum, petitioner is liable for de ciency income tax in the revised amount of P263,060.57
computed as follows:
Taxable Income per return P24,379,143.14
Add: Discrepancies per investigation
Undeclared Income P778,061.49
Collection of Other Receivables-Tenants 14,400.20 792,461.69
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Taxable Income 25,171,604.83
Tax Rate 30%
Income Tax Due P7,551,481.45
Less: Tax Credit/payment per return
Tax Credit per return 1,646,161.01
Less: Unsupported CWT 25,322.66
Allowed Creditable Withholding Tax P1,620,838.35
Add: Payment 5,667,582.53 7,288,420.88
Deficiency Inco me Tax P263,060.57
II. Deficiency Value Added Tax
Petitioner was assessed of the de ciency Value Added Tax in the amount of
P3,910,029.82 inclusive of increments, computed as follows: AcICHD
The term 'gross receipts' means the total amount of money or its
equivalent representing the contract price, compensation, service fee, rental or
royalty , including the amount charged for materials supplied with the services and
deposits and advanced payments actually or constructively received during the
taxable quarter for the services performed or to be performed for another
person, excluding value-added tax ." (Emphasis Supplied.)
"Revenue Regulations No. 16-05
SECTION 4.108-2. Meaning of "Sale or Exchange of Services." — The
term "sale or exchange of services" means the performance of all kind of services in the
Philippines for others for a fee, remuneration or consideration, whether in kind or in cash,
including those performed or rendered by the following:
xxx xxx xxx
(3) lessors of property, whether personal or real;
xxx xxx xxx
SECTION 4.108-3. De nitions and Speci c Rules on Selected
Services . —
a. Lessors of Property. — All forms of property for lease, whether real or
personal, are liable to VAT subject to the provisions of Sec. 4.109-1(B)(1)(v)
of these Regulations.
"Real estate lessor" includes any person engaged in the business of
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leasing or subleasing real property.
Lease of property shall be subject to VAT regardless of the place where the
contract of lease or licensing agreement was executed if the property leased
or used is located in the Philippines.
VAT on rental and/or royalties payable to non-resident foreign corporations or
owners for the sale of services and use or lease of properties in the
Philippines shall be based on the contract price agreed upon by the licensor
and the licensee. The licensee shall be responsible for the payment of VAT
on such rentals and/or royalties in behalf of the non-resident foreign
corporation or owner in the manner prescribed in Sec. 4.114-2(b) hereof."
(Emphasis Supplied.)
The ICPA showed the reconciliation of the Accounts Receivable Trade with the amount
reported as per VAT returns-on cash (collection) method, as follows: 7 2
Although petitioner's over-claimed operating expense has an income tax effect, the same
cannot be construed as income subject to VAT because, precisely, it is an expense that does
not involve gross receipts derived from the use or lease of properties of petitioner. Thus, VAT
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assessment arising from the overclaimed expenses should be cancelled.
c. Undeclared Income (RLF/TRS/SAWT vs. SLS) in the amount of
P1,181,646.49
As previously discussed in de ciency income tax assessment (See Discussion I. a),
respondent assessed petitioner by comparing third party information vis-à-vis petitioner's
declaration on its Summary List of Safes (SLS). Respondent's ndings on undeclared income
are upheld but in the reduced amount of P778,061.49 for failure to substantiate.
Hence, the amount of P778,061.49 should be subjected to VAT.
d. Undeclared Income from Meralco in the amount of P4,587,870.68
In relation to the above-discussion on de ciency income tax assessment (See Discussion
I. c), respondent alleged that the data extracted thru CAATS revealed that there were income
payments to Meralco amounting to P4,587,870.68. Respondent also added that the amount
was reported by Meralco on its SAWT, but was not reported/accounted for by petitioner in its
Income Tax Return and Financial Statements.
However, the unaccounted disbursement should not be treated as undeclared income for
being presumptive in nature. Hence, the de ciency VAT assessment on this item should be
cancelled.
In sum, petitioner is liable for de ciency Value Added Tax in the reduced amount of
P543,484.02, computed as follows:
Receipts per return P35,252,717.59
Add: Discrepancies per
Investigation
Undeclared Receipts P3,750,965.45
Undeclared Income 778,061.49 4,529,026.94
Total Receipts subject to VAT P39,781,744.53
Tax Rate 12%
VAT Due thereon P4,773,809.34
Less: Input Tax 421,157.01
VAT Payable P4,352,652.33
Less: VAT Payment 3,809,168.31
Deficiency VAT P543,484.02
III. DST Liability in the amount of P652,736.18
Petitioner admits 7 4 its DST liability, as follows:
(a) present information about the basis of preparation of the nancial statements
and the specific accounting policies used in accordance with paragraphs 108-115;
(b) Disclose any information required by IFRS that is not presented on the face of the
balance sheet, income statement, statement of changes in equity, or cash ow
statement; and
(c) Provide additional information that is not presented on the face of the
balance sheet, income statement, statement of changes in equity, or cash flow
statement that is deemed relevant to an understanding of any of them . " 9 4
(Emphasis Supplied)
As such, the Court nds that petitioner failed to pass the "Immediacy Test." Hence,
petitioner is liable to pay the deficiency Improperly Accumulated Earnings Tax.
With respect to the compromise penalty in the amount of P50,000.00, the same should
be cancelled. Under Revenue Memorandum Order No. 1-90, compromise penalties are only
amounts suggested in settlement of criminal liability, and may not therefore be imposed or
exacted on the taxpayer in the event that a taxpayer refuses to pay the suggested compromise
penalties. It is well-settled that the Court has no jurisdiction to compel a taxpayer to pay the
compromise penalty because by its very nature, it implies a mutual agreement between the
parties in respect to the thing or subject matter which is so compromised, and the choice of
paying or not paying it distinctly belongs to the taxpayer. 9 5 Without showing that petitioner
consented to the compromise penalty, its imposition should be deleted.
WHEREFORE , the instant Petition for Review is PARTIALLY GRANTED . Accordingly the
Compromise Penalty imposed upon petitioner is CANCELLED . On the other hand, the
assessments issued by respondent against petitioner for de ciency Income Tax, de ciency
Value Added Tax, de ciency Documentary Stamp Tax, and de ciency Improperly Accumulated
Earnings Tax are UPHELD , but in the reduced amount of P15,372,714.26 inclusive of 25%
surcharge, computed as follows:
Tax Type Basic Tax 25% Total
Surcharge
Income Tax P263,060.57 P65,765.14
P328,825.71
Value Added Tax 543,484.02 135,871.01
679,355.03
Documentary Stamp 630,506.99 157,626.75
788,133.74
Tax
Improperly
Accumulated
Earnings Tax 10,861,119.82 2,715,279.96 13,576,399.78
Total P12,298,171.40 P3,074,542.86 P15,372,714.26
In addition, petitioner is liable to pay:
(a) De ciency interest at the rate of 20% per annum on the following basic de ciency
taxes pursuant to Section 249 (B) of the NIRC of 1997, as amended:
20% Deficiency
Interest computed
Deficiency Tax Basic Tax
CD Technologies Asia, Inc. 2017 cdasiaonline.com
Deficiency Tax Basic Tax
from
Income Tax P263,060.57 April 15, 2010
Value Added Tax 543,484.02 January 25, 2010
Documentary Stamp Tax 630,506.99 January 5, 2010
Improperly Accumulated
10,861,119.82 January 15, 2011 9 6
Earnings Tax
(b) Delinquency interest at the rate of 20% per annum in the total amount due of
P15,372,714.26 representing basic de ciency income tax, de ciency value added
tax, de ciency documentary stamp tax, Improperly Accumulated Earnings Tax, and
on the de ciency interest which has accrued as stated above in (a) computed from
November 19, 2014 9 7 until full payment thereof, pursuant to Section 249 (C) of the
NIRC of 1997.
SO ORDERED.
2. Par. 2, Admitted Facts, Joint Stipulation of Facts and Issues (JSFI), Docket, Vol. I, p. 291; Exhibit "P-
4", Docket, Vol. I, p. 359; and Exhibit "R-3", BIR Records, p. 1.
3. Exhibits "R-8", "R-9" and "R-10", BIR Records, pp. 449, 450 and 597.
16. Judicial A davit of Prudencio F. Tatunay (In Question and Answer Form), Docket, Vol. II, pp. 471-
495.
17. Docket, Vol. II, pp. 503-513.
18. Exhibit "R-20", Docket, Vol. I, pp. 256-266.
28. Exhibit "P-29-3", Schedule 1, Details of Discrepancy, Formal Letter of Demand, p. 30.
29. Part V, Discussions/Arguments, Petition for Review, Docket, Vol. I, pp. 19-20.
30. G.R. No. 222743, April 5, 2017.
31. G.R. No. 175410, November 12, 2014.
45. Exhibit "P-12", Docket, Vol. II, pp. 515-538; Exhibit P-29-3, pp. 163-175.
46. Exhibit "P-29-3", pp. 138-162.
47. Exhibit "P-29-3", Schedule 1, Details of Discrepancy, Formal Letter of Demand, pp. 30-31.
48. Part V, Discussions/Arguments, Petition for Review, Docket, Vol. I, pp. 20-21.
49. Part V, Discussions/Arguments, Petition for Review, Docket, Vol. I, pp. 20-21.
50. Exhibit "P-29", p. 13.
51. Exhibit "P-29-4".
61. P1,005.03 per report, it should be P11,005.03 per Exhibit "P-29", p. 15.
62. P1,919.40 per report, it should be P1,913.40 per Exhibit "P-29", p. 16.
63. Total Vatable Sales + Total VAT Exempt Sales + Total VAT.
64. Commissioner of Internal Revenue v. The Court of Appeals, Court of Tax Appeals and A. Soriano
Corp., G.R. No. 108576, January 20, 1999.
65. Viricson Corporation v. Commissioner of Internal Revenue, et al ., CTA Case No. 8709, January 24,
2017.
66. Id., citing Commissioner of Internal Revenue v. Phoenix Assurance Co. Ltd ., G.R. No. L-19727, May
20, 1965.
67. G.R. No. 136975, March 31, 2005.
68. G.R. No. L-13656, January 31, 1962.
88. Exhibit "P-3", Statement of Financial Position, Docket, Vol. I, p. 334; Note No. 6, Notes to Financial
Statements, Docket, Vol. I, p. 353.
89. Exhibit "P-29-3", pp. 441-446.
95. The Philippines International Fair, Inc. v. The Collector of Internal Revenue, et al ., G.R. L-1298 and L-
12932, March 31, 1962, 4 SCRA 781.
96. Pursuant to Sec. 6 of Revenue Regulations No. 2-2001.
97. Exhibit "P-1", Final Decision on Disputed Assessment, Docket, Vol. I, pp. 322-328.