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Posted at
Philippines (2nd UPDATE) - The Supreme Court has issued a temporary restraining order on the Bureau of Internal Revenue (BIR) ruling imposing a 20% final withholding tax on the government's Poverty Eradication and Alleviation Certificates (PEACe) bonds.
Supreme Court spokesman Midas Marquez said the banks have been ordered to put in escrow the withholding tax, equivalent to P5 billion, until the high court settles the case.
Marquez said this was to protect the government in case the court rules that the bonds are taxable.
The High Court acted on a petition filed by 8 banks Monday, asking it to nullify the Bureau of Internal Revenue (BIR) ruling because it went against the terms government set when it sold the bonds in 2001. The banks, Banco de Oro, Bank of Commerce,
The bonds were pushed by Code-NGO, an organization once headed by Social Welfare Secretary Dinky Soliman. Code-NGO and its bankers succeeded in getting government to exempt the bond from withholding tax.
Code-NGO made P1.8 billion from the transaction.
The bonds were exempted from tax obligations based on a BIR ruling in 2001.
However, on
Deposit substitutes are defined in the National Internal Revenue Code as "an alternative form of obtaining funds from the public, other than deposits."
Sanctity of contract
Meanwhile, the banks said imposing withholding tax on the PEACe bonds will impair the sanctity of their contract with government, worsening investor concerns on regulatory risks in the country.
"The situation has devastating implications on the credibility of our country and will definitely be viewed as exemplifying lack of credibility, predictability and stability in our markets," said the banks' lawyer, Francis Lim.
In their petition to the SC, the banks claimed that investors who bought the bonds in 2001 relied on the representations of government that these were not subject to the 20% withholding tax based on the BIR rulings.
“It should be noted that the pricing of the bonds (lower than comparable issues that were subject to tax) at that time of issue reflected the status of the bond as not subject to 20% FWT," they said.
They said changing the rules midway through the bonds' tenor was illegal.
"Belatedly applying the 2011 ruling to investors who bought the bonds is prohibited by the Tax Code."
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REVENUE MEMORANDUM ORDER No. 36-2011
SUBJECT : Amendment to Revenue Memorandum Order No. 26-2011
providing for guidelines in the tax treatment of Separation Benefits received by officials and employees on account of their separation from employment due to death, sickness or other physical disability and the issuance of Certificate of Tax Exemption from income tax and from the withholding tax.
TO : All Internal Revenue Officials and Others Concerned
Section 1. SCOPE.- Pursuant to provisions of Sec 244 and 245 of the National Internal Revenue code of 1997, as amended, in relation to Sec 32 (B)(6)(b) of the same Tax Code, these Revenue Memorandum Order is promulgated to amend certain provisions of Revenue Memorandum Order 26-2011 to include the Large Taxpayers Service.
Section 2. DOCUMENTARY REQUIREMENTS. - Roman Numeral No. II of RMO 26-2011 is hereby amended to read as follows:
II. DOCUMENTARY REQUIREMENTS
In order to facilitate the processing of requests for tax exemption of separation benefits received by officials/employees or his/her heirs as a result of their separation from employment due to death, sickness or other physical disability, regardless of age and length of service, the following documents are required to be submitted to the Revenue District Office (RDO) or appropriate Large Taxpayers (LT) Office where the employer is originally registered, to support such request:
Section 3. PROCESSING OF REQUEST FOR ISSUANCE OF CERTIFICATE OF TAX EXEMPTION OF SEPARATION BENEFITS RECEIVED AS A RESULT OF SEPARATION FROM EMPLOYMENT DUE TO DEATH, SICKNESS OR OTHER PHYSICAL DISABILITY OF THE EMPLOYEE.- Relevant portion of Roman Numeral No. III of RMO 26-2011 is hereby amended to read as follows:
Amendment to RMO 26-2011 Page 2 of 4
III. PROCESSING OF REQUEST FOR ISSUANCE OF
CERTIFICATE OF TAX EXEMPTION OF SEPARATION BENEFITS RECEIVED AS A RESULT OF SEPARATION FROM EMPLOYMENT DUE TO DEATH, SICKNESS OR OTHER PHYSICAL DISABILITY OF THE EMPLOYEE
A) APPLICATION AND PRE-EVALUATION BY THE
REVENUE DISTRICT OFFICE / LT OFFICE
1) The requesting Official/Employee (or by his heirs) who was separated from employment due to death, sickness or other physical disability, regardless of age and length of service, or requesting Employer, shall be required to submit all the documentary requirements for the processing of the Certificate of Exemption with the RDO/ appropriate Large Taxpayers (LT) Office where the Employer is originally registered.
2) The Officer of the Day in the concerned RDO/ LT Office shall pre-evaluate the application if it satisfactorily complies with the herein prescribed guidelines using the Action Sheet-Checklist of Requirements (Annex “B”).
a) If found complete, he shall then forward the application together with the pertinent supporting documents to the Revenue District Officer/ LT Division Chief who, in turn, shall thoroughly evaluate the same. Otherwise, a Notice to Comply (Annex “C”) shall be issued to the requesting Official/Employee/Heirs or Employer.
b) If after the lapse of the period given in the Notice to Comply, the applicant has not submitted the documents required, a Notice of Archiving (Annex “D”) shall be issued.
3) x x x
4) x x x
5) For Large Taxpayers Service, evaluation and preparation of certificates of tax exemptions shall be done by the concerned LT Office.
B) x x x
Amendment to RMO 26-2011 Page 3 of 4
C) REVIEW, APPROVAL OF TAX EXEMPTIONS AND
ISSUANCE OF CERTIFICATES BY THE REGIONAL
DIRECTOR OR ASSISTANT COMMISSIONER OF
INTERNAL REVENUE (ACIR) LARGE TAXPAYERS SERVICE
1) x x x
2) x x x
3) For taxpayers under the jurisdiction of the Large Taxpayers Service, the application for the issuance of certificate of tax exemption of separation benefits received as a result of separation from employment due to death, sickness or other physical disability of the employee shall be signed by the ACIR, Large Taxpayers Service, if he finds the same in order. Otherwise, the application shall be returned to the concerned LT Office with a memorandum of its review findings and evaluation.
D) x x x
1) x x x
2) x x x
3) x x x
4) The Legal Division of the Revenue Region or the
Large Taxpayers Service shall prepare the Certificate of Tax Exemption in three (3) copies to be issued and distributed as follows:
Original - taxpayer’s copy
Duplicate copy - to be attached to the docket
Triplicate copy - to the ACIR, Legal Service
a) The Legal Division or the Large Taxpayers Service
must ensure that the original copy of the signed Certificates of Tax Exemption bear the official dry seal of the Bureau before the release to taxpayers to avoid invalidation of the same.
Amendment to RMO 26-2011 Page 4 of 4
b) The Legal Division or the Large Taxpayers Service
shall maintain a permanent record book where the Certificate of Tax Exemption Number, Applicant/Requesting Taxpayer, and the Date of Issue shall be sequentially written.
Section 4. REPEALING CLAUSE. - All other issuances and/or portions thereof that are inconsistent herewith are hereby revoked, repealed or modified accordingly.
Section 5. EFFECTIVITY. – This Order shall take immediately.
September 28, 2011
For the information and guidance of all concerned, Section 19 of Republic Act (RA) No. 9679 known as the “Home Development Mutual Fund Law of 2009”, otherwise known as Pag-IBIG (Pagtutulungan sa kinabukasan: Ikaw, Bangko, Industriya at Gobyerno) Fund”, is hereby quoted as follows:
“SEC. 19. Exemption from Tax, Legal Process and Lien. - All laws to the contrary notwithstanding, the Fund and all its assets and properties, all contributions collected and all accruals thereto and income or investment earnings therefrom, as well as all supplies, equipment, papers or documents shall be exempt from any tax, assessment, fee, charge, or customs or import duty; and all benefit payments made by the Pag-IBIG Fund shall likewise be exempt from all kinds of taxes, fees or charges, and shall not be liable to attachments, garnishments, levy or seizure by or under any legal or equitable process whatsoever, either before or after receipt by the person or persons entitled thereto, except to pay any debt of the member to the Fund. No tax measure of whatever nature enacted shall apply to the Fund, unless it expressly revokes the declared policy of the State in Section 2 hereof granting tax exemption to the Fund. Any tax assessment against the Fund shall be null and void.”
RA No. 9679 was signed into law on July 21, 2009. The Implementing Rules and Regulations was made effective on January 1, 2010 after its publication.
However, since the PAG-IBIG Fund is exempt from the documentary stamp tax imposed under Title VII of the National Internal Revenue Code of 1997, as amended, the other party to the taxable document who is not exempt, shall be the one directly liable to pay the said documentary stamp tax.
SUBJECT : Clarification on the Definition of “Financial Institutions” as used in Revenue Regulations (RR) No. 4-2011 on the “Proper Allocation of Costs and Expenses Amongst Income Earnings of Banks and Other Financial Institutions for Income Tax Reporting Purposes”.
TO : All Revenue Officials, Revenue Employees and Others Concerned
For the information and guidance of all concerned, the definition of the term “Financial Institution” in RR No. 9-2004, is hereby provided to clearly identify institutions covered by the aforementioned regulations.
The term “Financial Institution”, as defined in RR No. 9-2004, is hereby adopted, to wit:
“Financial Institution - shall refer to banks, non-bank financial intermediaries performing quasi-banking functions, and other non-bank financial intermediaries including finance companies. This does not, however, include insurance companies.”
All internal revenue officers are hereby enjoined to give this Circular a wide publicity as possible.
October 5, 2011
Section 24 (B) of the Tax Code, as amended, provides that a twenty percent (20%) final tax shall be imposed on amount of interest from any currency bank deposit and yield or any other monetary benefit from deposit substitutes and from trust funds and similar arrangements, thus:
“SECTION 24. Income Tax Rates. —
x x x x
(B) Rate of Tax on Certain Passive Income: —
Interests, Royalties, Prizes, and Other Winnings. — A final tax at the rate of twenty percent (20%) is hereby imposed upon the amount of interest from any currency bank deposit and yield or any other monetary benefit from deposit substitutes and from trust funds and similar arrangements;
x x x”
However, in Dumaguete Cathedral Credit Cooperative vs. CIR1, the Supreme Court ruled that cooperatives are not required to withhold taxes on interest from savings and time deposits of their members. The pertinent ruling reads:
“xxx xxx xxx
There is nothing in the ruling to suggest that it applies only when deposits are maintained in a bank. Rather, the ruling clearly states, without any qualification, that since interest from any Philippine currency bank deposit and yield or any other monetary benefit from deposit substitutes are paid by banks, cooperatives are not required to withhold the corresponding tax on the interest from savings and time deposits of their members. This interpretation was reiterated in BIR Ruling [DA-591-2006] dated October 5, 2006, which was issued by Assistant Commissioner James H. Roldan upon the request of the cooperatives for a confirmatory ruling on several issues, among which is the alleged exemption of interest income on members' deposit (over and above the share capital holdings) from the 20% final withholding tax. In the said ruling, the BIR opined that:
xxx xxx xxx
1
G.R. No. 182722, January 22, 2010
Cooperative_ withholding tax on interest from savings Page 2 of 2
3. Exemption of interest income on members' deposit (over and above
the share capital holdings) from the 20% Final Withholding Tax.
The National Internal Revenue Code states that a "final tax at the rate of twenty percent (20%) is hereby imposed upon the amount of interest on currency bank deposit and yield or any other monetary benefit from the deposit substitutes and from trust funds and similar arrangement . . ." for individuals under Section 24(B)(1) and for domestic corporations under Section 27(D)(1). Considering the members' deposits with the cooperatives are not currency bank deposits nor deposit substitutes, Section 24(B)(1) and Section 27(D)(1), therefore, do not apply to members of cooperatives and to deposits of primaries with federations, respectively.
It bears stressing that interpretations of administrative agencies in charge of enforcing a law are entitled to great weight and consideration by the courts, unless such interpretations are in a sharp conflict with the governing statute or the Constitution and other laws. In this case, BIR Ruling No. 551-88 (sic) and BIR Ruling [DA-591-2006] are in perfect harmony with the Constitution and the laws they seek to implement. Accordingly, the interpretation in BIR Ruling No. 551-88 (sic) that cooperatives are not required to withhold the corresponding tax on the interest from savings and time deposits of their members, which was reiterated in BIR Ruling [DA-591-2006], applies to the instant case.”
xxx xxx xxx
Moreover, no less than our Constitution guarantees the protection of cooperatives. Section 15, Article XII of the Constitution considers cooperatives as instruments for social justice and economic development. At the same time, Section 10 of Article II of the Constitution declares that it is a policy of the State to promote social justice in all phases of national development. In relation thereto, Section 2 of Article XIII of the Constitution states that the promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. Bearing in mind the foregoing provisions, we find that an interpretation exempting the members of cooperatives from the imposition of the final tax under Section 24 (B) (1) of the NIRC is more in keeping with the letter and spirit of our Constitution.
All told, we hold that petitioner is not liable to pay the assessed deficiency withholding taxes on interest from the savings and time deposits of its members, as well as the delinquency interest of 20% per annum.”
All concerned are hereby enjoined to be guided accordingly and give this circular as wide a publicity as possible.
29 September 2011
The Bureau of Internal Revenue (BIR) today filed with the Department of Justice (DOJ) a criminal complaint against NILO H. ALEGADO (ALEGADO) for willful attempt to evade or defeat tax and deliberate failure to supply correct and accurate information in his Income Tax Returns (ITR) for taxable year 2009, in violation of Sections 254 and 255 of the NIRC of 1997, as amended.
ALEGADO is a sole proprietor duly-registered with the BIR whose business is located at Consolacion Public Market, Poblacion Oriental, Consolacion, Cebu. He is engaged in the business of renting of real properties and dealing of rice and operates under the name “New Store.”
Access to the records of rice importations at the National Food Authority (NFA) – such as the Memorandum of Understanding and Certificate of Turn-Over - showed that ALEGADO made importations for taxable year 2009 amounting to P183.01 million. A comparison of the same amount with the declaration of ALEGADO in his ITR and Audited Financial Statements for the same year filed with the BIR revealed purchases of just P3.41 million, indicating a huge discrepancy in the total amount of P179.60 million which is tantamount to undeclared sales per investigation.
Adding the declared sales of ALEGADO in his ITR of P4.33 million, sales should have been P183.94 million. Total percentage of underdeclaration of sales per investigation is 4,143.34%.
Under the Tax Code, an underdeclaration of taxable income of more than 30% is considered as substantial underdeclaration and constitutes prima facie evidence of fraud tantamount to tax evasion.
ALEGADO was slapped with a deficiency income tax assessment for taxable year 2009 in the aggregate amount of P102.94 million, inclusive of surcharges and interests.
The case against NILO H. ALEGADO is the sixty-eighth (68th) filed under the Run After Tax Evaders (RATE) program of the BIR under the leadership of Commissioner Kim S. Jacinto-Henares. NATURE OF INCOME PAYMENT | TAX | A T C | |||||||||||||||||
| | CORP | |||||||||||||||||
EWT- professionals (lawyers, CPAs, engineers, etc)/talent fees paid | | | | | |||||||||||||||
| to juridical persons | | | | | | | | | | | | | | |||||
| - if the current year's gross income is P720,000 and below | | 10% | WI 010 | WC 010 | ||||||||||||||
| - if the current year's gross income exceeds P720,000 | | | 15% | WI 011 | WC 011 | |||||||||||||
EWT- professional entertainers- | | | | | | | | 10% | WI 020 | | |||||||||
| - if the current year's gross income does not exceed P720,000.00 | | |||||||||||||||||
| - if the current year's gross income exceeds P720,000.00 | | | | | | | | 15% | WI 021 | | ||||||||
EWT- professional athletes- | | | | | | | | | 10% | WI 030 | | ||||||||
| - if the current year's gross income does not exceed P720,000.00 | | |||||||||||||||||
| - if the current year's gross income exceeds P720,000.00 | | | | | | | | | 15% | WI 031 | | |||||||
EWT- movie, stage, radio, television and musical directors- | | | 10% | WI 040 | | ||||||||||||||
| - if the current year's gross income does not exceed P720,000.00 | | |||||||||||||||||
| - if the current year's gross income exceeds P720,000.00 | | | | | | | 15% | WI 041 | | |||||||||
EWT- management and technical consultants | | | | | | 10% | WI 050 | WC 050 | |||||||||||
| - if the current year's gross income is P720,000 and below | | |||||||||||||||||
| - if the current year's gross income exceeds P720,000 | | | 15% | WI 051 | WC 051 | |||||||||||||
EWT- business and bookkeeping agents and agencies | | | | 10% | WI 060 | | |||||||||||||
| - if the current year's gross income is P720,000 and below | | | ||||||||||||||||
| - if the current year's gross income exceeds P720,000 | | | | | | | | 15% | WI 061 | | ||||||||
EWT- insurance agents and insurance adjusters | | | | | 10% | WI 070 | | ||||||||||||
| - if the current year's gross income is P720,000 and below | | | ||||||||||||||||
| - if the current year's gross income exceeds P720,000 | | | 15% | WI 071 | | |||||||||||||
EWT- other recipient of talent fees- | | | | | | | | 10% | WI 080 | | |||||||||
| - if the current year's gross income does not exceed P720,000.00 | | |||||||||||||||||
| - if the current year's gross income exceeds P720,000.00 | | | | | | | 15% | WI 081 | | |||||||||
EWT- fees of directors who are not employees of the company | | 10% | WI 090 | | |||||||||||||||
| - if the current year's gross income is P720,000 and below | | | ||||||||||||||||
| - if the current year's gross income exceeds P720,000 | | | | | | | | | | | | | | 15% | WI 091 | | ||
EWT- rentals : real/personal properties, poles,satellites & transmission | 5% | WI 100 | WC 100 | ||||||||||||||||
| facilities, billboards | | | | | | | | | | |||||||||
EWT- cinematographic film rentals | 5% | WI 110 | WC 110 | ||||||||||||||||
EWT- prime contractors/sub-contractors | 2% | WI 120 | WC 120 | ||||||||||||||||
EWT- income distribution to beneficiaries of estates & trusts | 15% | WI 130 | | ||||||||||||||||
EWT- gross commission or service fees of customs, insurance, | | 10% | WI 140 | WC 140 | |||||||||||||||
| stocks, real estate, immigration & commercial brokers & | | |||||||||||||||||
| fees of agents of professional entertainers | | | | | ||||||||||||||
|
NATURE OF INCOME PAYMENT | TAX | A T C | ||||||||||||||
| | CORP | ||||||||||||||
EWT- payments to medical practitioners by a duly registered professional partnership | | | | |||||||||||||
| -if the current year's income payments for the medical practitioner is P720,000 and below | 10% | WI 141 | | ||||||||||||
| -if the current year's income payments for the medical practitioner exceed P720,000 | 15% | WI 142 | | ||||||||||||
EWT- payments for medical/dental /veterinary services thru hospitals/clinics/ | | | | |||||||||||||
| health maintenance organizations, including direct payments to | | | | ||||||||||||
| service providers | | | | | | | | | | | | ||||
| - if the current year's income payments for the medical/dental/veterinary services | 10% | WI 151 | | ||||||||||||
| is P720,000 and below | | | | | | | | | | ||||||
| - if the current year's income payments for the medical/dental/veterinary services | 15% | WI 150 | | ||||||||||||
| exceeds P720,000 | | | | | | | | | | | |||||
EWT- payment by the general professional partnership (GPP) to its partners | 10% | WI 152 | | |||||||||||||
| -if the current year's income payments for the partner is P720,000 and below | | ||||||||||||||
| -if the current year's income payments for the partner exceed P720,000 | 15% | WI 153 | | ||||||||||||
EWT- payments made by credit card companies | | | | 1% of 1/2 | WI 156 | WC 156 | ||||||||||
EWT- income payments made by the government to its local/resident suppliers | 1% | WI 640 | WC 640 | |||||||||||||
| of Goods | | | | | | | | | | | |||||
EWT- income payments made by the government to its local/resident suppliers | 2% | WI 157 | WC 157 | |||||||||||||
| of Services | | | | | | | | | | | |||||
EWT- income payments made by top 10,000 private corporations to | 1% | WI 158 | WC 158 | |||||||||||||
| their local/resident supplier of goods | | | | | |||||||||||
EWT- income payments made by top 10,000 private corporations to | 2% | WI 160 | WC 160 | |||||||||||||
| their local/resident supplier of services | | | | | |||||||||||
EWT- additional payments to government personnel from importers, shipping | 15% | WI 159 | | |||||||||||||
| and airline companies or their agents for overtime services | | ||||||||||||||
EWT- commission,rebates, discounts and other similar considerations | 10% | WI 515 | WC 515 | |||||||||||||
| paid/granted to independent and exclusive distributors, medical/technical | |||||||||||||||
| and sales representatives and marketing agents and sub-agents | |||||||||||||||
| of multi-level marketing companies | | | | | | ||||||||||
EWT- gross payments to embalmers by funeral companies | | 1% | WI 530 | | ||||||||||||
EWT- payments made by pre-need companies to funeral parlors | | | | | | | | | | | | | | 1% | WI 535 | WC 535 |
EWT- tolling fee paid to refineries | | | | | | | 5% | WI 540 | WC 540 | |||||||
EWT- income payments made to suppliers of agricultural products | 1% | WI 610 | WC 610 | |||||||||||||
EWT- income payments on purchases of minerals, mineral products & quarry resources | 10% | WI 630 | WC 630 | |||||||||||||
EWT - income payments on purchases of gold by Bangko Sentral ng Pilipinas (BSP) | 10% | WI 632 | WC 632 | |||||||||||||
| from gold miners/suppliers under PD 1899, as amended by RA No. 7076 | |||||||||||||||
EWT- on gross amount of refund given by MERALCO to customers with active | 25% | WI 650 | WC 650 | |||||||||||||
| contracts as classified by MERALCO | | | | | |||||||||||
EWT- on gross amount of refund given by MERALCO to customers with terminated | 32% | WI 651 | WC 651 | |||||||||||||
| contracts as classified by MERALCO | | | | | |||||||||||