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Special Second Division: Coon of Tax Appeals
Special Second Division: Coon of Tax Appeals
COMMISSIONER OF INTERNAL
REVENUE, Promulgated:
issued by the former Second Division of this Court which is herein referred to as
THE FACTS
1
Docket, CTA Case No. 4794, Volume II , pp. 636-636
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CTA Case No. 4794
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The Petition for Review filed on April 20, 19922 before the former Court of
Tax Appeals 3 seeking the refund or the issuance of a tax credit in the
added tax (VAT) for the first quarter of taxable year 1990 was denied in the
follows :
SO ORDERED.
The reason for the denial of said Petition for Review was based on the
findings of the Court a quo that petitioner was not a VAT-registered person during
Petitioner's motion for the reconsideration of the said Decision was likewise
2
Docket, Volume 1, pp. 1-2.
3
The former Court of Tax Appeals then had the rank of a Regional Trial Court under Republic Act No.
1125.
4
Decision dated November 8, 1993, rendered by the Hon . Manuel K. Gruba, Associate Judge, concurred by
Hon, Ramon 0. De Veyra, Associate Judge, with Concurring and Dissenting Opinion rendered by the Hon.
Ernesto D. Acosta, Presiding Judge of the old Court of Tax Appeals, Docket, Volume I, pp. 347-363
5
Docket, Volume I, pp. 394 to 411.
6
The case was docketed as CA-GR SP No. 34152.
7
Docket, Volume I, pp 716 to 741. Docket, Volume II, pp. 264 to 287.
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CTA Case No. 4794
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~
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SO ORDERED. "
Decision rendered by the Court of Appeals . The same, however, was denied by
docketed as G.R. No. 134467 challenging in part the said Decision and
8
Docket , Volume II, p. 311.
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CTA Case No. 4794
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must be taken into account, not merely the proportion of such sales
to the actual exports of the said enterprise. Other than the above
modifications, the challenged Decision is AFFIRMED.
SO ORDERED ."
This Decision became final and executory on December 15, 1999 and was
On July 11, 2006, petitioner filed before the former Second Division of this
Court a "Motion for Computation of Refund", 10 praying that the amount of its VAT
refund for the first quarter of taxable year 1990 be computed pursuant to the
9
Docket, Volume I, p. 742.
10
Docket, Volume I, pp. 768 to 771.
11
Docket, Volume I, pp. 855 to 857.
12
Resolution dated January 24, 2007, Docket, Volume II, pp. 867 to 869.
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CTA Case No. 4794
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Judgment,13 praying for the revival and execution of the aforequoted Decision of
the Supreme Court specifically the VAT refund for the first quarter of taxable year
1990.
Resolution dated June 13, 2007, treating petitioner's Petition for Revival of
Judgment, as a Motion for Further Proceedings,14 and trial was conducted in this
case. Petitioner presented and offered a new set of evidence, which were all
On the other hand , respondent's counsel manifested that she will not be
presenting any additional evidence and is submitting the case for decision during
the hearing held on January 14, 2009.16 Thus , both parties were directed to
THE ISSUE
The lone issue for the determination of the Court is as follows : Whethe r
or not petitioner is entitled to the full amount of its claim for the refund or
issuance of tax credit of its unutilized input VAT for the first quarter of 1990 in
the total amount of ~ 35 ,522,056.58.
13
Docket, Volume II pp. 546 to 555 .
14
Docket, Volume II , pp. 635 to 636.
15
Resolution dated October 6, 2008, Docket, Volume II pp. 935 to 936.
16
Minutes of hearing held on January 14, 2009, Docket, Volume IT p. 950.
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CTA Case No. 4794
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Petitioner's arguments
Petitioner submits that at the outset, the legal issues regarding Sections
100 and 106 of the Tax Code have been settled by the Supreme Court in its 17
Revenue. In particular, the Supreme Court ruled that : (a) petitioner was a VAT-
registered entity in 1990 and beyond , and (b) the sales to CB , Philphos and
zero-rated for the first quarter of 1990, and not only as of "August 15, 1990" as
held by theCA, which allegedly ignored "clear evidence" that its VAT registration
Section 106(b) of the NIRC, as amended by Executive Order No. 273 (July
25, 1987), lays down the requisites for refunds or tax credits of input tax due or
"SEC . 16. Refunds or tax credits of input tax.- (a) Zero-rated sales of
goods and services. - Only a VAT -registered person may be given a
tax credit or refund of value-added taxes paid corresponding to the zero-
rated sales of goods or services, to the extent that such taxes have not
been applied against output taxes , upon showing of proof of compliance
with the conditions stated in Section 8 of these Regulations. " (Emphasis
supplied)
certificate , to wit:
Anent the first requisite , as correctly pointed out by petitioner, the fact that
petitioner is VAT-registered "for the first quarter of 1990 and beyond" is already a
same case , that petitioner's sales of raw materials to PASAR and Philphos are
The Court of Appeals , in its finding that the respondent commissioner had
indeed already approved the zero-rating of petitioner's past sales to PASAR and
17
G.R. No. 134467, November 17, 1999.
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c. VAT Ruling No. 271 -88 (dated June 24, 1988), wherein
it was recognized that sales to PHILPHOS are zero-rated (Annex '1,'
Joint Stipulation of Facts; p. 72 of the CTA Record) ;
stipulated that the same is subject to the zero percent (0%) VAT. 19 Hence,
respondent has likewise already conceded that such sale of gold qualifies for
zero-rating .
intertwined with the question on whether said sales by petitioner is subject to the
zero percent (0%) VAT, namely: (i) input tax attributable to sales to PASAR in the
amount of ~ 12,404, 150.65; (ii) input tax attributable to sales to Philphos in the
amount of~ 501 ,652.00; and (iii) output tax due on sale of gold to the CB in the
18
Decision, CA-G.R. SP No. 34152, pp. 10, CTA Case No. 4794, Docket, Vol. I, p. 725
19
JSF, Par. 3(a) and Annex "A" thereof, Docket, Volume I, pp. 40 to 41, and 56. BIR Records, p. 253.
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sales in the amount of Iii 972 ,535.67, it is petitioner's position that said amount
chargeable against its PIT. 20 However, the CA has already ruled as follows:
particular type of output tax is chargeable only against a particular type of input
tax (such as the PIT) or vice versa. In fact, the law made no distinction on
purpose of it being credited against the output tax. Apropos , Section 104 of the
"SEC. 104. Tax Credits. (a) Creditable input tax.- Any input
tax on the
20
JSF, Par. 10, Docket, Volume I, p. 45.
21
The law of the case principle generally finds application if cases where an appellate court passes on a
question and remands the case to the lower court for proceedings-the question there settled becomes
the law of the case. (Ariola vs. Phi/ex Mining Corporation, G.R. No. 147756, August 9, 2005)
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The term 'output tax' means the value-added tax due on the
sale of taxable goods or services by any person registered or requ ired
to register under Section 107 of this Code.
(b) Excess output tax.- If at the end of any taxable quarter the
output tax exceeds the input tax, the excess shall be paid by the
VAT-registered person . If the input tax exceeds the output tax, the
excess shall be carried over to the succeeding quarter or quarters.
Any input tax attributable to the purchase of capital goods or to zero-
rated sales by a VAT -registered person may at his option be refunded
or credited against other internal revenue taxes , subject to the
provisions of Section 106. " (Emphases supplied)
findings, was able to dichotomize which input tax are attributable to petitioner's
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CTA Case No. 4794
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sales to PASAR in the amount of~ 12,404,150.65 and to Philphos in the amount
of ~ 501 ,652.00. It is therefore implied that as for the other amounts of input
VAT being claimed by petitioner, the same is in fact attributable to its zero-rated
sales; otherwise, respondent could have easily deducted or disallowed the same
on such ground . Hence, it is without question that the amount of input VAT being
Returns for the second , third and fourth quarters of 199022 would reveal that
although the amount of the claim , i.e., ~ 35,522 ,056.58 23 , was carried-over in the
succeeding quarters , the same was not applied against any output tax liability.
Going now to the fifth requisite, as held in the case of Atlas Consolidated
period for filing a claim for refund/cred it of input VAT on zero-rated sales from the
date of filing of the return and payment of the tax due which , according to the law
then existing ,25 should be made within twenty (20) days from the end of each
quarter. Considering that petitioner filed its VAT Return for the first quarter of
1990 on April 20, 1990, both the filing of the administrative claim for refu nd/credit
of VAT input taxes for the said period on or about July 24, 1990 26 and of the
22
Exhibits"!" to "K", Docket (Folder II), pp. 886 to 888 .
23
JSF, Par. 7, Docket (Folder 1), p. 42. BIR Records, p. 265.
24
G.R. Nos. 141104 and 148763, June 8, 2007.
25
SEC. 110. Return and payment of value-added tax. - x x x.
(b) Time for filing of return and payment of tax.- The return shall be tiled and the tax paid within 20 days following the
end of each quarter specifically prescribed for a VAT -registered person under regulations to be promulgated by the
r·
Secretary of Finance : Provided, however, That any person whose registration is cancelled in accordance with paragraph (e)
of Section I 07 shall tile a return within 20 days from the cancellation of such registration. "
" JSF, p,,_ 6, Docko' pp. 41 to 42. B I R Rooo«h, p. 262.
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judicial claim thereof on April 20, 1992, are made within the two-year prescriptive
period .
the ground that the provisions of said Revenue Regulations relied upon by
However, it has already been ruled, inter alia , by the CA in its Decision in
the Supreme Court in G.R. No. 134467. In fact, it even declared that Section 21
121 ,384 ,172.48 and 12474,606.87 were anchored , "is not invalid". Thus, the
27
Memorandum for Petitioner filed on March 20, 1993, Docket (Folder I), pp. 246 to 252.
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CTA Case No. 4794
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foregoing declarations of the CA and the High Court have also become the law of
the case.28
without authority to use loose leaf sales invoices in the amount of ~ 10,000.00,
on the taxpayer in the event that a taxpayer refuses to pay the same.29 In other
one hand , and the Commissioner of Internal Revenue , on the other. As there is
no indication in this case that petitioner is willing to pay the said amount, there is
no legal basis to deduct the same from the amount of petitioner's claim for
refund .
input VAT for the period covering the first quarter of 1990 as computed below:
28
See footnote no. 39.
29
Revenue Memorandum Order No. 1-90.
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34152 (reversing the Decision rendered in this case) and as affirmed by the
Supreme Court in G. R. No. 134467, and considering the find ings of this Court
Court hereby finds petitioner only partially entitled to its subject refund claim.
representing its unutilized input VAT for the first quarter of 1990 within sixty days
SO ORDERED.
Assoc1ate Justice
WE CONCUR:
<;:L."'--~tf;:C..~~ Q ~
q'l.JAN'if'o C. CASTANEDA~@~ OLGA P~RIQUEZ
Associate Justice Associate Justice