San Beda Tax

download San Beda Tax

of 130

Transcript of San Beda Tax

  • 7/31/2019 San Beda Tax

    1/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    TAXATION LAW

    I. GENERAL PRINCIPLESPOWER OF TAXATION

    TAXATION power by which thesovereign through its law-making bodyraises revenue to defray the necessaryexpenses of government from amongthose who in some measure are privilegedto enjoy its benefits and must bear itsburdens.

    Two Fold Nature of the Power of

    Taxation1. It is an inherent attribute of sovereignty2. It is legislative in character

    Extent of Taxing PowerSubject to constitutional and inherent

    restrictions, the power of taxation isregarded as comprehensive, unlimited,plenary and supreme.

    SCOPE OF LEGISLATIVETAXINGPOWER 1. Amount or rate of tax2. Apportionment of the tax

    3. Kind of tax4. Method of collection5. Purpose/s of its levy, provided it is

    for public purpose6. Subject to be taxed, provided it is

    within its jurisdiction7. Situs of taxation

    TAXES enforced proportionalcontributions from the persons andproperty levied by the law-making bodyof the State by virtue of its sovereignty insupport of government and for publicneeds.

    CHARACTERISTICS OF TAXES1. forced charge;2. pecuniary burden payable in money;3. levied by the legislature;4. assessed with some reasonable rule

    of apportionment; (see theoreticaljustice)

    5. imposed by the State within itsjurisdiction;

    6. levied for a public purpose.

    R EQUISITES OF A VALID TAX1. should be for a public purpose2. the rule of taxation shall be uniform3. that either the person or property

    taxed be within the jurisdiction of the taxing authority

    4. that the assessment and collection of certain kinds of taxes guaranteesagainst injustice to individuals,especially by way of notice andopportunity for hearing be provided

    5. the tax must not impinge on the

    inherent and Constitutionallimitations on the power of taxation

    THEORIES AND BASES OF TAXATION1. Lifeblood Theory

    Taxes are what we pay for civilizedsociety. Without taxes, the governmentwould be paralyzed for lack of the motivepower to activate and operate it. Hence,despite the natural reluctance tosurrender part of one's hard-earnedincome to the taxing authorities, everyperson who is able to must contribute his

    share in the running of the government.(CIR v. Algue, Inc.)

    2. Necessity TheoryThe power to tax is an attribute of

    sovereignty emanating from necessity. Itis a necessary burden to preserve theState's sovereignty and a means to givethe citizenry an army to resist anaggression, a navy to defend its shoresfrom invasion, a corps of civil servants toserve, public improvements designed forthe enjoyment of the citizenry and thosewhich come within the State's territory,and facilities and protection which agovernment is supposed to provide. (Phil.Guaranty Co., Inc. v. CIR)

    3. Benefits-Protection / ReciprocityTheoryTaxation is described as a symbiotic

    relationship whereby in exchange of thebenefits and protection that the citizensget from the Government, taxes are paid.(CIR v. Algue, Inc.)

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    2/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    Note: While taxes are intended forgeneral benefits, special benefits totaxpayers are not required. TheGovernment renders no special or

    commensurate benefit to any particularperson or property.

    IS THE POWER TO TAX THE POWER TO DESTROY?1. Power to tax is the power to

    destroy (Marshall Dictum) refersto the unlimitedness and the degreeor vigor with which the taxing powermay be employed to raise revenue.

    - the financial needs of the State mayoutrun any human calculation, so thepower to meet those needs by taxationmust not be limited even though taxesbecome burdensome or confiscatory.

    2. Power to tax is not the power todestroy while the Supreme Court sits(Holmes Dictum) the power to taxknows no limit except those expresslystated in the Constitution.

    Marshall and Holmes Dictum Reconciled Although the power to tax is almost

    unlimited, it must not be exercised in anarbitrary manner. If the abuse is sogreat so as to destroy the natural andfundamental rights of people, it is theduty of the judiciary to hold such an actunconstitutional.

    PURPOSES AND OBJECTIVES OF TAXATION1. Revenue basically, the purpose of

    taxation is to provide funds orproperty with which the Statepromotes the general welfare andprotection of its citizens.

    2. Non-Revenue (Key: PR 2EP)a. Promotion of general welfare

    b. R egulationc. R eduction of social inequalityd. Encourage economic growthe. Protectionism

    POWER OF J UDICIALR EVIEW IN TAXATIONAs long as the legislature, in imposing

    a tax, does not violate applicableconstitutional limitations or restrictions,it is not within the province of the courtsto inquire into the wisdom or policy of the exaction, the motives behind it, the

    amount to be raised or the persons,property or other privileges to be taxed.

    The courts power in taxation islimited only to the application and

    interpretation of the law.

    Note: The principle of judicial non-interference extends to theadministrative realm.

    ASPECTS OF TAXATION1. Levy or imposition of the tax (tax

    legislation)2. Enforcement or tax administration

    (tax administration)

    BASIC PRINCIPLES OF A SOUND TAX SYSTEM (K EY:

    FAT)1. Fiscal Adequacy sufficiency to

    meet government expenditures andother public needs.

    2. Administrative Feasibility/Convenience capability of beingeffectively enforced.

    3. Theoretical Justice based on thetaxpayers ability to pay; must beprogressive. (Ability to Pay Theory)

    TAXATION POLICE

    POWER

    EMINENT

    DOMAIN1. PurposeTo raiserevenue

    To promotepublicpurposethroughregulations

    To facilitatethe Statesneed of property forpublic use

    2. Amount of ExactionNo limit Limited to the

    cost of regulation,issuance of the license orsurveillance

    No exaction;but privateproperty istaken by theState forpublic purpose

    3. Benefits Received No special ordirectbenefit isreceived bythetaxpayer;merelygeneralbenefit of protection

    No directbenefit isreceived; ahealthyeconomicstandard of society isattained

    A directbenefit resultsin the form of justcompensationto thepropertyowner

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    3/130

  • 7/31/2019 San Beda Tax

    4/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    Exception: Stockholders may be heldliable for unpaid taxes of a dissolvedcorporation:a. if it appears that the corporate

    assets have passed into theirhands orb. when the stockholders have

    unpaid subscriptions to thecapital of the corporation

    2. Estate taxes are obligations thatmust be paid by the executor oradministrator out of the net assetsand cannot be assessed against theheirs.Exception: If prior to the payment of the estate tax due, the properties of the deceased are distributed to theheirs, then the latter is subsidiaryliable for the payment of suchportion of the estate tax as hisdistributive share bears to the totalvalue of the net estate. (Sec. 9, Rev.Regs. No. 2-2003; see CIR vs. PinedaG.R. No. L-22734. September 15,1967))

    CLASSIFICATION OF TAXES1. As to subject matter:

    a.Personal Tax taxes are of fixedamount upon all persons of acertain class within thejurisdiction without regard toproperty, occupation or businessin which they may be engaged.

    b. Property Tax assessed onproperty of a certain class

    c. Excise Tax imposed on theexercise of a privilege

    d. Customs Duties duties chargedupon the commodities on theirbeing imported into or exportedfrom a country.

    2. As to burden:a. Direct Tax both the incidence

    of or liability for the payment of the tax as well as the impact orburden of the tax falls on thesame person.

    b. Indirect Tax - The incidence of or liability for the payment of the tax falls on one person butthe burden thereof can beshifted or passed on to another.

    3. As to purpose:

    a. General Tax levied for thegeneral or ordinary purposes of the Government

    b. Special Tax levied for specialpurposes

    4. As to manner of computation:a. Specific Tax the computation

    of the tax or the rates of the taxis already provided for by law.

    b. Ad Valorem Tax tax upon thevalue of the article or thingsubject to taxation; theintervention of another party isneeded for the computation of the tax.

    5. As to taxing authority:a. National Tax levied by the

    National Governmentb. Local Tax levied by the local

    government6. As to rate:

    a. Progressive Tax rate or amountof tax increases as the amount of the income or earning to betaxed increases.

    b. Regressive Tax tax ratedecreases as the amount of income to be taxed increases.

    c. Proportionate Tax based on a

    fixed proportion of the value of the property assessed.

    IMPOSITIONS NOT STRICTLY CONSIDERED AS TAXES1. Toll amount charged for the cost

    and maintenance of the propertyused.

    2. Penalty punishment for thecommission of a crime.

    3. Compromise Penalty amountcollected in lieu of criminalprosecution in cases of taxviolations.

    4. Special Assessment levied only onland based wholly on benefitaccruing thereon as a result of improvements or public worksundertaken by government withinthe vicinity.

    5. License or Fee regulatoryimposition in the exercise of thepolice power.

    6. Margin Fee exaction designed tostabilize the currency.

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    5/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    7. Debt a sum of money due uponcontract or one which is evidencedby judgment.

    8. Subsidy a legislative grant of money in aid of a private enterprisedeemed to promote the publicwelfare.

    9. Customs duties and fees dutiescharged upon commodities on theirbeing transported into or exportedfrom a country.

    10. Revenue a broad term thatincludes taxes and income fromother sources as well.

    11. Impost in its general sense, itsignifies any tax, tribute or duty. In

    its limited sense, it means a duty onimported goods and merchandise.

    Tax SpecialAssessment

    Imposed on persons,property and excises

    Levied only on land

    Personal liabilityattaches on theperson assessed incase of non-payment

    Cannot be made apersonal liability of the person assessed

    Not based on anyspecial or directbenefit

    Based wholly onbenefit

    Levied and paidannually

    Exceptional both asto time and locality

    Exemption grantedis applicable (Art.VI, Sec. 28(3) 1987 Constitution)

    Exemption does notapply.N.B. If property isexempt from RealProperty Tax, it isalso exempt fromSpecial Assessment.

    Tax License Fee

    Based on the powerof taxation

    Emanates frompolice power

    To generaterevenue

    Regulatory

    Amount is unlimited Amount is limited tothe cost of (1)issuing the license,and (2) inspectionand surveillance

    Normally paid afterthe start of abusiness

    Normally paidbeforecommencement of business

    Taxes, being thelifeblood of theState, cannot besurrendered exceptfor lawfulconsideration

    License fee may bewith or withoutconsideration

    Non-payment doesnot make thebusiness illegal butmaybe a ground forcriminal prosecution

    Non-payment makesthe business illegal

    TEST IN DETERMINING IF THE IMPOSITION IS A TAX OR A LICENSE FEE

    If the purpose is primarily revenue orif revenue is, at least, one of the real andsubstantial purposes, then the exaction isa tax. If the purpose is regulatory innature, it is a license. (PAL v. Edu)

    Tax Debt

    An obligationimposed by law

    Created by contract

    Due to thegovernment in itssovereign capacity

    May be due to thegovernment but inits corporatecapacity

    Payable in money Payable in money,property or services

    Does not drawinterest except incase of delinquency

    Draws interest if stipulated or delayed

    Not assignable Assignable

    Not subject tocompensation orset-off

    Subject tocompensation or set-off

    Non-payment ispunished byimprisonmentexcept in poll tax

    No imprisonment incase of non-payment(Art. III, Sec. 20 1987 Constitution)

    Imposed only bypublic authority

    Can be imposed byprivate individual

    TEST IN DETERMINING IF THE IMPOSITION IS A TAX OR A LICENSE FEE

    If the purpose is primarily revenue or

    if revenue is, at least, one of the real and

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    6/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    substantial purposes, then the exaction isa tax. If the purpose is regulatory innature, it is a license. (PAL v. Edu)

    Tax DebtAn obligationimposed by law

    Created by contract

    Due to thegovernment in itssovereign capacity

    May be due to thegovernment but inits corporatecapacity

    Payable in money Payable in money,property or services

    Does not draw

    interest except incase of delinquency

    Draws interest if

    stipulated ordelayed

    Not assignable Assignable

    Not subject tocompensation orset-off

    Subject tocompensation orset-off

    Non-payment ispunished byimprisonmentexcept in poll tax

    No imprisonment incase of non-payment (Art. III,Sec. 20 1987 Constitution)

    Imposed only bypublic authority

    Can be imposed byprivate individual

    COMPENSATION OR SET-OFFGeneral Rule: Taxes cannot be thesubject of compensation or set-off.

    Reasons:1. lifeblood theory2. taxes are not contractual

    obligation but arise out of duty tothe government

    3. the government and the taxpayerare not mutually creditors anddebtors of each other. (Franciav. IAC)

    Exception: When both obligations aredue and demandable as well as fullyliquidated and all the requisites for avalid compensation are present,compensation takes place by operation of law. (Domingo v. Garlitos)

    DOCTRINE OF EQUITABLE R ECOUPMENT NOT FOLLOWED IN THE PHILIPPINES

    A tax presently being assessed againsta taxpayer which has prescribed may notbe recouped or set-off against anoverpaid tax the refund of which is also

    barred by prescription. It is against publicpolicy since both parties are guilty of negligence.

    Tax Toll

    Enforced proportionalcontributions frompersons and property

    A sum of money forthe use of something,a considerationwhich is paid for theuse of a propertywhich is of a publicnature; e.g. road,bridge

    A demand of sovereignty

    A demand of proprietorship

    No limit as to theamount of tax

    Amount of tolldepends upon thecost of constructionor maintenance of the publicimprovement used

    Imposed only by theState

    May be imposed by:(1) Government(2) Private

    individuals or

    entities

    Tax Penalty

    Enforcedproportionalcontributions frompersons andproperty

    Sanction imposed asa punishment forviolation of a lawor acts deemedinjurious; violationof tax laws may giverise to imposition of penalty

    Intended to raiserevenue

    Designed to regulateconduct

    May be imposedonly by thegovernment

    May be imposed by:(1) Government(2) Privateindividuals orentities

    Tax Tariff

    All embracing termto include variouskinds of enforced

    contributions upon

    A kind of taximposed on articleswhich are traded

    internationally

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    7/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    persons for theattainment of publicpurposes

    TAXPAYERS

    SUIT

    A case where the act complained of directly involves the illegal disbursementof public funds derive from taxation(Justice Melo, dissenting in Kilosbayan,Inc vs Guingona, Jr.)

    TAXPAYERS AND PUBLIC OFFCIALS HAVE LOCUS STANDI R EQUISITES FOR TAXPAYERS SUIT

    a. The tax money is being extractedand spent in violation of specificconstitutional protections against

    abuses of legislative power.b. That public money is beingdeflected to any improper purpose(Pascual vs Secretary of PublicWorks)c. That the petitioner seeks torestrain respondents from wastingpublic funds through the enforcementof an invalid or unconstitutional law

    LIMITATIONS ON THE TAXINGPOWER

    A. INHERENT LIMITATIONS (K EY: SPINE)1. Territoriality or Situs of taxation2. Public purpose of taxes3. International comity

    4. Non-delegability of the taxing power5. Tax Exemption of the government

    (1) T ESTS IN DETERMINING PUBLIC PURPOSEA. Duty Test whether the thing to be

    furthered by the appropriation of public revenue is something, whichis the duty of the State, as agovernment, to provide.

    B. Promotion of General Welfare Test whether the proceeds of the taxwill directly promote the welfare of the community in equal measure.

    (2) N ON-DELEGABILITY OF THE TAXING POWER General Rule: The power of taxation ispeculiarly and exclusively exercised bythe legislature. (See Scope of LegislativeTaxing Power, supra )- refers to tax legislation

    Exceptions to Non-delegability:

    1. Flexible Tariff Clause: Authority of the President to fix tariff rates,import and export quotas, tonnageand wharfage dues, and other duties

    or imposts. (Art. VI, Sec.28(2), 1987 Constitution)2. Power of local government units to

    levy taxes, fees, and charges. (Art. X, Sec. 5, 1987 Constitution)

    3. Delegation to administrative agenciesfor implementation and collection.

    - merely refers to tax administration orimplementation

    (3) SITUS OR TERRITORIALITY OF TAXATIONThe power to tax is limited only to

    persons, property or businesses withinthe jurisdiction or territory of the taxingpower.

    FACTORS THAT DETERMINE THE SITUS:a. Kind or classification of the taxbeing leviedb. Situs of the thing or propertytaxedc. Citizenship of the taxpayerd. Residence of the taxpayere. Source of the income taxedf. Situs of the excise, privilege,business or occupation being taxed

    APPLICATION OF SITUS OF TAXATIONKind of Tax Situs

    Personal orCommunity tax

    Residence ordomicile of thetaxpayer

    Real property tax Location of property(Lex rei sitae)

    Personal propertytax

    -tangible: where it isphysically located or

    permanently kept(Lex rei sitae)-intangible: subjectto Sec. 104 of theNIRC and theprinciple of mobiliasequuntur personam

    Business tax Place of business

    Excise or Privilegetax

    Where the act isperformed or whereoccupation is

    pursued

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    8/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    Sales tax Where the sale isconsummated

    Income Tax Consider(1) citizenship,(2) residence, and(3) source of income(Sec. 42, 1997 NIRC)

    Transfer tax Residence orcitizenship of thetaxpayer or locationof property

    Franchise Tax State which grantedthe franchise

    SITUS OF TAXATION OF INTANGIBLE PERSONAL PROPERTYGeneral Rule: Domicile of the ownerpursuant to the principle of the mobiliasequuntur personam or movables followthe person.Exceptions :1. When the property has acquired a

    business situs in another jurisdiction;2. When an express provision of the

    statute provide for another rule.Illustration: For purposes of estateand donors taxes, the following

    intangible properties are deemedwith a situs in the Philippines:(1) franchise which must be

    exercised in the Philippines;(2) shares, obligations or bonds

    issued by any corporationorganized or constituted in thePhilippines in accordance with itslaws;

    (3) shares, obligations or bonds byany foreign corporation eighty-five percent (85%) of the businessof which is located in the

    Philippines;(4) shares, obligations or bonds

    issued by any foreign corporationif such shares, obligations orbonds have acquired a businesssitus in the Philippines; and

    (5) shares or rights in anypartnership, business or industryestablished in the Philippines.(Sec. 104, 1997 NIRC).

    (4) E XEMPTION OF THE GOVERNMENT

    As a matter of public policy, propertyof the State and of its municipalsubdivisions devoted to government usesand purposes is deemed to be exempt

    from taxation although no expressprovision in the law is made therefor.

    General Rule: The Government is taxexempt .- However, it can also tax itself.

    R ULES:1. Administrative Agencies

    A. Governmental function - taxexempt unless when the lawexpressly provides for tax. (Sec.32 B7)

    B. Proprietary function taxableunless exempted by law. (Sec.27C)

    2. GOCCsGeneral Rule: Income is taxable atthe rate imposed upon corporationsor associations engaged in a similarbusiness, industry, or activity.Exception: GSIS, SSS, PHIC, PCSO andPAGCOR. (Sec. 27(C), NIRC)

    3. Government Educational InstitutionsA. Property or real estate tax

    property actually, directly andexclusively used for educationalpurposes exempt but income of whatever kind and characterfrom any of their properties, realor personal, regardless of thedisposition, is taxable . (Sec. 30,last par., NIRC)

    B . Income received by them as suchare exempt from taxes.However, their income from anyof their activities conducted forprofit regardless of thedisposition, is taxable . (Sec. 30,last par., NIRC)

    4. Income derived from any publicutility or from the exercise of anyessential governmental functionaccruing to the Government of thePhilippines or to any politicalsubdivision thereof is not included ingross income and exempt fromtaxation. (Sec. 32(B)(7)(b), NIRC)

    5. Donations in favor of governmentalinstitutions are considered as incomeon the part of the donee. However,

    it is not considered as taxable income

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    9/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    because it is an exclusion from thecomputation of gross income.(Sec.32 (B)(3), NIRC)

    6. The amount of all bequests, legacies,

    devises or transfers to or for the useof the Government or any politicalsubdivision for exclusively publicpurposes is deductible from the grossestate. (Sec.86 (A)(3), NIRC)

    7. Gifts made to or for the use of theNational Government or any entitycreated by any of its agencies whichis not conducted for profit, or to anypolitical subdivision of the saidGovernment are exempt fromdonors tax. (Sec. 101(A)(2), NIRC)

    8. Local government units are expressly

    prohibited by the LGC from levyingtax upon National Government, itsagencies, and instrumentalities, andlocal government units. [Sec. 133 (o),LGC]

    9. Unless otherwise provided in theLocal Government Code (LGC), taxexemptions granted to all persons,whether natural or juridical,including GOCC, except local waterdistricts, cooperatives duly registeredunder RA No. 6938, non-stock andnon-profit institutions, arewithdrawn upon effectivity of theLGC. (Sec. 193, LGC)

    10. Real property owned by the Republicof the Philippines or any of itspolitical subdivisions except whenthe beneficial use thereof has beengranted, for consideration orotherwise, to a taxable person shallbe exempt from payment of realproperty tax. (Sec. 234, LGC)

    (5) I NTERNATIONAL COMITYThese principles limit the authority of

    the government to effectively imposetaxes on a sovereign state and itsinstrumentalities, as well as on itsproperty held and activities undertakenin that capacity. Even where one entersthe territory of another, there is animplied understanding that the formerdoes not thereby submit itself to theauthority and jurisdiction of the other.

    B. CONSTITUTIONALLIMITATIONSA. GENERAL OR INDIRECT

    CONSTITUTIONAL LIMITATIONS

    1. Due Process Clause (Art. III, Sec. 1,1987 Constitution)Requisites:

    A.The interests of the public asdistinguished from those of aparticular class require theintervention of the State.(Substantive limitation)

    B.The means employed must bereasonably necessary to theaccomplishment of the purpose andnot unduly oppressive. (Procedurallimitation)

    The constitutionality of a legislativetaxing act questioned on the ground of denial of due process requires the

    existence of an actual case orcontroversy.

    2. Equal Protection Clause ( Art. III,Sec. 1, 1987 ConstitutionRequisites of a Valid Classification:

    a. based upon substantialdistinctions

    b. germane to the purposes of thelaw

    C. not limited to existing conditionsonly

    d. apply equally to all members of the class

    3. Freedom Of Speech And Of ThePress (Art. III, Sec. 4, 1987 Constitution)

    There is curtailment of pressfreedom and freedom of thought andexpression if a tax is levied in orderto suppress this basic right andimpose a prior restraint. (Tolentinovs. Secretary of Finance, GR No.115455, August 25, 1994)

    4. Non-Infringement Of ReligiousFreedom And Worship ( Art. III, Sec.5, 1987 Constitution)

    A license tax or fee constitutes acurtailment of religious freedom if imposed as a condition for itsexercise. (American Bible Society vs.City of Manila, GR No. L-9637, April30, 1957)

    5. Non-Impairment Of Contracts ( Art.III, Sec. 10, 1987 Constitution)

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    10/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    No law impairing the obligation of contract shall be passed. (Sec. 10,

    Art. III, 1987 Constitution)The rule, however, does not

    apply to public utility franchises orright since they are subject toamendment, alteration or repeal bythe Congress when the public interestso requires. (Cagayan Electric &Light Co., Inc. v. Commissioner, GRNo. 60216, September 25, 1985)

    R ULES:A. When the exemption isbilaterally agreed upon between thegovernment and the taxpayer itcannot be withdrawn without

    violating the non-impairment clause.B. When it is unilaterally granted by

    law, and the same is withdrawn byvirtue of another law no violation.

    C. When the exemption is grantedunder a franchise it may bewithdrawn at any time thus, not aviolation of the non-impairment of contracts

    6. Presidential power to grantreprieves, commutations andpardons and remit fines andforfeitures after conviction ( ART.VII, SEC. 19, 1987 CONSTITUTION)Due

    ProcessEqual

    Protection Uniformity

    Taxpayermay notbedeprivedof life,liberty orpropertywithoutdueprocess of law.Noticemust,therefore,be givenin case of failure topay taxes

    Taxpayersshall betreated alikeunder likecircumstancesand conditionsboth in theprivilegesconferred andliabilitiesimposed.

    Taxablearticles, orkinds of property of the sameclass, shallbe taxed atthe samerate. Thereshouldtherefore,be no directdoubletaxation

    B. SPECIFIC OR DIRECTCONSTITUTIONAL LIMITATIONS

    1. Non-Imprisonment For Debt Or Non-Payment Of Poll Tax ( Art. III, Sec.20, 1987 Constitution)

    2. Rule Requiring That Appropriations,Revenue And Tariff Bills ShallOriginate Exclusively From TheHouse Of Representatives ( Art. VI,Sec. 24, 1987 Constitution)

    3. Uniformity, Equitability AndProgressivity Of Taxation (Art. VI,Sec. 28(1), 1987 Constitution)Uniformity all taxable articles orkinds of property of the same class aretaxed at the same rate.Equitability the burden falls to those

    who are more capable to pay.Progressivity rate increases as thetax base increases.

    Q: Is a tax law adopting a regressivesystem of taxation valid?

    A: Yes. The Constitution does notreally prohibit the imposition of indirecttaxes which, like the VAT, are regressive.The Constitutional provision means simplythat indirect taxes shall be minimized.The mandate to Congress is not toprescribe, but to evolve, a progressivetax system. (EVAT En Banc Resolution,Tolentino, et al vs Secretary of Finance,October 30, 1995)

    4. Limitations On The CongressionalPower To Delegate To ThePresident The Authority To FixTariff Rates, Import And ExportQuotas, Etc. (Art. VI, Sec. 28(2),1987 Constitution)

    5. Tax Exemption Of PropertiesActually, Directly And ExclusivelyUsed For Religious, Charitable AndEducational Purposes. (Art. VI, Sec.28(3) 7, 1987 Constitution)

    The constitutional provision(above cited) which grants taxexemption applies only to property orrealty taxes assessed on suchproperties used actually, directlyexclusively for religious, charitableand educational purposes. (Lladoc vs.Commissioner, GR No. L-19201, June16, 1965)

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    11/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    The present Constitution requiredthat for the exemption of lands,buildings and improvements, theyshould not only be exclusively but

    also actually and directly usedfor religious and charitable purposes.(Province of Abra vs. Hernando, GRNo. L-49336, August 31, 1981)

    The test of exemption fromtaxation is the use of the propertyfor the purposes mentioned in theConstitution. (Abra Valley CollegeInc. vs. Aquino, GR No. L-39086, June15, 1988)

    EXCLUSIVE BUT NOT ABSOLUTE USEThe term exclusively used does

    not necessarily mean total or absoluteuse for religious, charitable andeducational purposes. If the property isincidentally used for said purposes, thetax exemption may still subsist. (AbraValley College Inc. vs. Aquino, Gr No. L-39086, June 15, 1988)

    Corollarily, if a property, althoughactually owned by a religious, charitableand educational institution is used for anon- exempt purpose, the exemptionfrom tax shall not attach

    ART. XIV,SEC 4(3)

    ART. VI,SEC 28(3)

    Grantee Non- stock,non profiteducationalinstitution

    Religious,educational,charitableinstitutions

    Taxescovered

    Income taxCustomDutiesProperty tax(DECS Order No. 137-187)

    Property tax

    6. Voting Requirement In ConnectionWith The Legislative Grant Of TaxExemption (Art. VI, Sec. 28(4),1987 Constitution)

    7. Non-Impairment Of The JurisdictionOf The Supreme Court In Tax Cases(Art. VIII, Sec. 2 And 5(2)(B), 1987 Constitution)

    8. Exemption From Taxes Of TheRevenues And Assets Of EducationalInstitutions, Including Grants,Endowments, Donations And

    Contributions. (Art. XIV, Sec. 4(3) And (4), 1987 Constitution)

    OTHER SPECIFIC TAX PROVISIONS IN THE

    CONSTITUTION1. Power of the President to veto anyparticular item or items in anappropriation, revenue, or tariff bill.(Art VI, Sec. 27(2), 1987 Constitution)

    2. Necessity of an appropriation beforemoney may be paid out of the publictreasury. (Art. VI, Sec. 29 (1), 1987 Constitution)

    3. Non-appropriation of public money orproperty for the use, benefit, orsupport of any sect, church, or

    system of religion. (Art. VI, Sec. 29 (2), 1987 Constitution)

    4. Treatment of taxes levied for aspecial purpose. (Art. VI, Sec. 29 (3),1987 Constitution)

    5. Internal revenue allotments to localgovernment units. (Art. X, Sec. 6,1987 Constitution)

    DOUBLE TAXATION

    DOUBLE TAXATION taxing the same propertytwice when it should be taxed but once.

    IS DOUBLE TAXATION PROHIBITED IN THE PHILIPPINES?No. There is no constitutional

    prohibition against double taxation. It isnot favored but permissible. (Pepsi ColaBottling Co. v. City of Butuan, 1968).

    K INDS OF DOUBLE TAXATION(1) Direct Duplicate Taxation /

    Obnoxious double taxation in theobjectionable or prohibited sense.This constitutes a violation of substantive due process.

    Elements:a. the same property or subjectmatter is taxed twice when it shouldbe taxed only once.b. both taxes are levied for thesame purposec. imposed by the same taxingauthorityd. within the same jurisdictione. during the same taxing period

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    12/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    f. covering the same kind orcharacter of tax.(Villanueva vs. City of Iloilo)

    (2) Indirect Duplicate Taxation notlegally objectionable. The absenceof one or more of the above-mentioned elements makes thedouble taxation indirect.

    (3) Domestic- this arises when the taxesare imposed by the local or nationalgovernment (within the same state)

    (4) International- refers to theimposition of comparable taxes intwo or more states on the sametaxpayer in respect of the samesubject matter and for identicalperiods.

    R EMEDIES OF DOUBLE TAXATION1. Tax Sparing Rule same dividend

    earned by a NRFC within the Phil. isreduced by imposing a lower rate of 15% (in lieu of the 35%), on thecondition that the country to whichthe NRFC is domiliced shall allow acredit against the tax due from theNRFC, taxes deemed to have been

    paid in the Phil. (Sec.28 B 5b) (CIR vsProcter & Gamble) (GR No. 66838,Dec. 2, 1991 )

    2. Tax deductionsExample : vanishing deduction underSection 86(A)(2), NIRC

    3. Tax creditsInstances under the NIRC:

    For VAT purposes , the tax on inputsor items that go into the manufactureof finished products (which areeventually sold) may be creditedagainst or deducted from the output

    tax or tax on the finished product. Foreign income taxes may becredited against the Phil. Income tax,subject to certain limitations, bycitizens, including members of general professional partnerships orbeneficiaries of estates or trusts ( prorata ), as well as domesticcorporations. A tax credit is granted for estatetaxes paid to a foreign country on theestate of citizens and resident aliens

    subject to certain limitations.

    The donors tax imposed upon acitizen or a resident shall be creditedwith the amount of any donors taximposed by the authority of a foreigncountry, subject to certainlimitations .

    Tax ExemptionsPrinciple of ReciprocityTreaties with other states

    METHODS R ESORTED TO BY A TAX TREATY IN ORDER TO ELIMINATEDOUBLE TAXATION

    FIRST METHOD: The tax treaty sets outthe respective rights to tax by the stateof source or situs and by the state of residence with regard to certain classesof income or capital. In some cases, anexclusive right to tax is conferred in oneof the contracting states; however, forother items of income or capital, bothstates are given the right to tax althoughthe amount of tax that may be imposedby the state of source is limited.SECOND METHOD: The state of source isgiven a full or limited right to taxtogether with the state of residence. Inthis case, the treaty makes it incumbentupon the state of residence to allow

    relief in order to avoid double taxation.TWO METHODS OF RELIEF ARE USED UNDER THE SECOND METHOD:

    1. The exemption method - the incomeor capital which is taxable in thestate of source or situs is exemptedin the state of residence, although insome instances it may be taken intoaccount in determining the rate of tax applicable to the tax payersremaining income or capital.(This

    may be done using the tax deductionmethod which allows foreign incometaxes to be deducted from grossincome, in effect exempting thepayment from being further taxed.)

    2. The credit method- although theincome or capital which is taxed inthe state of source is still taxable inthe state of residence. The tax paidin the former is credited against thetax, levied in the latter.(Commissioner of Internal Revenue

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    13/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    v. S.C Johnson and Son, Inc. et al.,G.R No. 127105, June 25, 1999)

    Exemption

    MethodCredit Method

    Focus is on theincome or capitalitself

    Focus is on the tax

    NOTE : Computational illustrationbetween a tax deduction and a taxcredit: Tax deduction method

    Gross incomeLess: allowable deductionsincluding

    foreign taxes paidIncome subject to taxMultiplied by rateIncome tax due

    Tax credit methodGross incomeLess: allowable deductionsexcludingforeign taxes paidIncome subject to taxMultiplied by rateIncome tax due

    Less: foreign taxes paidNet income tax due

    FORMS OF ESCAPE FROMTAXATION

    (1) SHIFTING the process by which the taxburden is transferred from thestatutory taxpayer (impact of taxation) to another (incident of taxation) without violating the law.

    IMPACT OF TAXATION point on which tax isoriginally imposed.

    INCIDENCE OF TAXATION point on which thetax burden finally rests or settles down.Illustration: Value added tax. The selleris required by law to pay tax, but theburden is actually shifted or passed on tothe buyer.

    KINDS OF SHIFTINGA. Forward shifting- when burden of

    tax is transferred from a factor of

    production through the factors of distribution until it finally settles onthe ultimate purchaser or consumer

    B. Backward shifting- when burden is

    transferred from consumer throughfactors of distribution to the factorsof production

    C. Onward shifting- when the tax isshifted 2 or more times eitherforward or backward

    (2) CAPITALIZATION a mere increase in thevalue of the property is not incomebut merely an unrealized increase incapital. No income until after theactual sale or other disposition of the property in excess of its original

    cost.EXCEPT: if by reason of appraisal, the costbasis of property increased and theresultant basis is used as the new taxbase for purposes of computing theallowable depreciation expense, the netdifference between the original cost basisand new basis is taxable under theeconomic benefit principle. (BIR RulingNo. 029, March 19, 1998)

    (3) TRANSFORMATION the manufacturer orproducer upon whom the tax hasbeen imposed, fearing the loss of hismarket if he should add the tax tothe price, pays the tax andendeavors to recoup himself byimproving his process of production,thereby turning out his units at alower cost.

    (4) TAX AVOIDANCE the exploitation by thetaxpayer of legally permissiblealternative tax rates or methods of assessing taxable property orincome, in order to avoid or reducetax liability.

    Example: estate planning (conveyanceof property to a family corporation forshares) (Delpher Trades Corp. vs. IAC,157 SCRA 349)(5) TAX EVASION use by the taxpayer of

    illegal or fraudulent means to defeator lessen the payment of the tax.

    FACTORS IN TAX EVASION1. the end to be achieved, i.e. payment

    of less than that known by the

    taxpayer to be legally due, or paying

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    14/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    no tax when it is shown that the taxis due;

    2. an accompanying state of mind whichis described as being evil, in bad

    faith, willful, or deliberate and notcoincidental; and3. a course of action which is unlawful.

    INDICIAOF FRAUD IN TAX EVASION1. Failure to declare for taxation

    purposes true and actual incomederived from business for 2consecutive years (Republic vsGonzales, L-17962)

    2. Substantial under-declaration of income tax returns of the taxpayerfor 4 consecutive years coupled with

    intentional overstatement of deductions (CIR vs Reyes, 104 PHIL1061)

    TAXAVOIDANCE

    TAXEVASION

    Validity Legal and notsubject tocriminal penalty

    Illegal andsubject tocriminalpenalty

    Effect Minimization of taxes

    Almostalwaysresults inabsence of tax payments

    (6) TAX EXEMPTION a grant of immunityto particular persons or corporationsfrom the obligation to pay taxes.

    LEGAL BASIS: No law granting any taxexemption shall be passed without theconcurrence of a majority of all themembers of Congress ( ART VI. SEC 28(4) OF THE 1987 CONSTITUTION ) K INDS OF TAX EXEMPTION1. As to source

    A. Constitutional immunities fromtaxation that originate from theconstitution.

    B . Statutory those which emanatefrom legislation

    Examples of Statutory ExemptionsSec. 27, NIRCSec. 105 Tariff and Customs CodeSec. 234 Local Government Code

    Special Laws, such as theOmnibus Investment Code of 1987(EO 226), Philippine OverseasShipping Act (RA 1407 as amended),

    Fertilizer Industry Act (RA 3050, asamended), Mineral ResourcesDevelopment Decree of 1974 (PD 463as amended), Cottage Industry Act(RA 318, as amended) andexemptions in Housing for LowIncome Group (PD 1205, asamended)C . Contractual- agreed to by the

    taxing authority in contractslawfully entered into by themunder enabling laws

    d. Treaty

    e. Licensing Ordinance2. As to form

    (1) Express expressly granted byorganic or statute law

    (2) Implied when particularpersons, property or excises aredeemed exempt as they falloutside the scope of the taxingprovision itself.

    3. As to extent(1) Total absolute immunity(2) Partial one where a collection

    of a part of the tax is dispensedwith

    4. As to object(1) Personal granted directly in

    favor of certain persons(2) Impersonal granted directly in

    favor of a certain class of property

    PRINCIPLESGOVERNINGTAX EXEMPTIONA. Exemptions from taxation are highly

    disfavored in law and are notpresumed .

    B. He who claims as exemption must beable to justify his claim by theclearest grant of organic or statutelaw by words too plain to bemistaken. If ambiguous, there is noexemption.

    C. He who claims exemption shouldprove by convincing proof that he isexempted.

    D. Taxation is the rule ; tax exemptionis the exception .

    E. Tax exemption must be strictlyconstrued against the taxpayer and

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    15/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    liberally in favor of the taxingauthority.

    f. Tax exemptions are not presumed.G. Constitutional grants of tax

    exemption are self-executing .H. Tax exemptions are personal .

    THE FOLLOWING PARTAKE THE NATURE OF TAX EXEMPTION 1. Deductions for income tax purposes2. Claims for refund3. Tax amnesty4. Condonation of unpaid tax liabilitiesNOTE: must be strictly construed againstthe taxpayer

    WHEN EXEMPTIONS ARE CONSTRUED LIBERALLY IN FAVOR OF GRANTEE1. When the law so provides for such

    liberal construction.2. Exemptions from certain taxes,

    granted under special circumstancesto special classes of persons.

    3. Exemptions in favor of thegovernment, its political subdivisionsor instrumentalities.

    4. Exemptions to traditional exemptees,such as those in favor of religious andcharitable institutions.

    5. If exemptions refer to the publicproperty

    Q: May a tax exemption be revoked?A: Yes. It is an act of liberality whichcould be taken back by the governmentunless there are restrictions. Sincetaxation is the rule and exemptiontherefrom is the exception, theexemption may be withdrawn by thetaxing authority. (Mactan CebuInternational Airport Authority vs.Marcos, 261 SCRA 667)

    R ESTRICTIONS ON R EVOCATION OF TAX EXEMPTIONS A. Non impairment clause. Where the

    exemption was granted to privateparties based on materialconsideration of a mutual nature,which then becomes contractual andis covered by the non-impairmentclause of the Constitution.

    B. Adherence to form- if the taxexemption is granted by theConstitution, its revocation may beeffected through Constitutional

    amendment only

    C. Where the tax exemption grant is inthe form of a special law and not bya general law even if the terms of thegeneral act are broad enough to

    include the codes in the general lawunless there is manifest intent torepeal or alter the special law(Province of Misamis Oriental vsCagayan Electric Power and Light Co.Inc)

    NATURE OF TAX AMNESTY1. General or intentional overlooking by

    the state of its authority to imposepenalties on persons otherwise guiltyof evasion or violation of a revenue ortax law.

    2. Partakes of an absolute forgiveness of waiver of the government of its rightto collect.

    3. To give tax evaders, who wish torelent and are willing to reform achance to do so.

    RULES ON TAX AMNESTY1. Tax amnesty

    a) like tax exemption, it is neverfavored nor presumed

    b) construed strictly against thetaxpayer (must show completecompliance with the law)

    2.Government not estopped fromquestioning the tax liability even if amnesty tax payments were alreadyreceived.

    Reason : Erroneous application andenforcement of the law by publicofficers do not block subsequentcorrect application of the statute. Thegovernment is never estopped bymistakes or errors of its agents.Basis : Lifeblood Theory

    3.Defense of tax amnesty, like insanity, isa personal defense.Reason : Relates to the circumstances of a particular accused and not thecharacter of the acts charged in theinformation.

    Tax amnesty Tax exemption

    Immunity from allcriminal, civil andadministrative

    Immunity from civilliability only

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    16/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    liabilities arisingfrom non paymentof taxes

    Applies only to pasttax periods, henceretroactiveapplication

    Prospectiveapplication

    DOCTRINE OF IMPRESCRIPTIBILTYAs a rule, taxes are imprescriptible as

    they are the lifeblood of the government.However, tax statutes may provide forstatute of limitations.

    The rules that have been adopted areas follows:a.) National Internal Revenue Code The statute of limitation forassessment of tax if a return is filed iswithin three (3) years from the last dayprescribed by law for the filling of thereturn or if filed after the last day,within three years from date of actualfilling. If no return is filed or the returnfiled is false or fraudulent, the period toassess is within ten years from discoveryof the omission, fraud or falsity.

    The period to collect tax is withinthree years from date of assessment. Inthe case, however, of omission to file orif the return filed is false or fraudulent,the period to collect is within ten yearsfrom discovery without need of anassessment.

    b.) Tariff and customs codeIt does not express any general

    statute of limitation; it provided,however, that when articles haveentered and passed free of duty or finaladjustment of duties made, withsubsequent delivery, such entry and

    passage free of duty or settlement of duties will, after the expiration of one(1) year , from the date of the final

    payment of duties, in the absence of fraud or protest, be final and conclusiveupon all parties, unless the liquidationof import entry was merely tentative.(Sec 1603,TCC)

    c.) Local Government Code Local Taxes, fees, or charges shall be

    assessed within five (5) years from thedate they became due. In case of fraud

    or intent to evade the payment of taxes,

    fees or charges the same may beassessed within ten (10) years fromdiscovery of the fraud or intent to evade

    payment. They shall also be collected

    either by administrative or judicialaction within five (5) years from date of assessment (Sec. 194. LGC)

    TAX ENFORCEMENT ANDADMINISTRATION

    SOURCES OF TAX LAWS (Key: SPEC 2TRA BLT)1. Statutes2. Presidential Decrees3. Executive Orders4. Constitution5. Court Decisions6. Tax Codes7. R evenue Regulations8. Administrative Issuances9. BIR Rulings10. Local Tax Ordinance11. Tax Treaties and Conventions

    R EQUISITES OF TAX R EGULATIONS1. Reasonable2. Within the authority conferred3. Not contrary to law4. Must be published

    NOTE: Administrative regulations mustalways be in harmony with the provisionsof the law. In case of discrepancybetween the basic law and theimplementing rule or regulation, theformer prevails.

    NON-R ETROACTIVITY OF BIR R ULINGSGeneral Rule : Rulings are not retroactiveif they are prejudicial to the taxpayer.(Sec. 246, NIRC)

    Exceptions:1. Where the taxpayer deliberatelymisstates or omits material factsfrom his return or any documentrequired of him by the BIR.

    2. Where the facts subsequentlygathered by the BIR is materiallydifferent from the facts on which theruling is based.

    3. Where the taxpayer acted in badfaith.

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    17/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    PRINCIPLE OF LEGISLATIVE APPROVAL OF AN ADMINISTRATIVE INTERPRETATION THROUGH R EENACTMENT

    Where a statute is susceptible of the

    meaning placed upon it by a ruling of thegovernment agency charged with itsenforcement and the legislaturethereafter reenacts the provision withoutsubstantial change, such action is tosome extent confirmatory that the rulingcarries out the legislative purpose.

    R ULE OF NO ESTOPPEL AGAINST THE GOVERNMENTGeneral Rule: The Government is notestopped by the mistakes or errors of itsagents; erroneous application andenforcement of law by public officers do

    not bar the subsequent correctapplication of statutes. (E. Rodriguez,Inc. vs. Collector, L-23041, July 31,1969)Exception: In the interest of justice andfair play, as where injustice will result tothe taxpayer. (see CIR vs. CA, GR No.117982, Feb. 6, 1997; CIR vs. CA, GR No.107135, Feb. 3, 1999)

    AGENCIES INVOLVED IN TAX ADMINISTRATION1. Bureau of Internal Revenue

    internal revenue taxes Agents of the CIRa. Commissioner of Customs withrespect to taxes on imported goodsb. head of the appropriategovernment office with respect toenergy taxc. banks duly accredited by the CIR

    (Sec. 12, 1997 NIRC)2. Bureau of Customs customs law

    enforcement3. Provincial, city and municipal

    assessors and treasurers local andreal property taxes

    ORGANIZATION AND FUNCTION OF THEBUREAU OF INTERNAL R EVENUE (BIR)

    BIR shall be under the supervisionand control of the Dept. of Finance (Sec.2, NIRC)

    POWERS AND DUTIES OF THE BIR Assessment and collection of all

    national internal revenue taxes, fees, andcharges

    1. Enforcement of all forfeitures,penalties, and fines connectedtherewith

    2. Execution of judgments in all cases

    decided in its favor by the Court of Tax Appeals (CTA) and the ordinarycourts

    3. Give effect to and administer thesupervisory and police powersconferred to it by the Code or otherlaws

    ASSESSMENT a finding by the taxingauthority that the taxpayer has not paidthe correct taxes. It is also a writtennotice to a taxpayer to the effect thatthe amount stated therein is due as a tax

    and containing a demand for the paymentthereof.General rule: Taxes are self-assessingand thus, do not require the issuance of an assessment notice in order to establishthe tax liability of a taxpayer.

    Exceptions:

    1. Tax period of a taxpayer isterminated [Sec. 6(D), NIRC]

    2. Deficiency tax liability arising from atax audit conducted by the BIR [Sec.

    56(B), NIRC] 3. Tax lien [Sec. 219, NIRC] 4. Dissolving corporation [Sec. 52(c),

    NIRC]

    SIGNIFICANCE OF ASSESSMENTa. In the proper pursuit of judicial and

    extrajudicial remedies to enforcetaxpayer liabilities and certainmatters that relate to it, such as theimposition of surcharges andinterests,

    b. In the application of statute of limitations,

    c. In the establishment of tax liens, andd. In estimating the revenues that may

    be collected by government in thecoming year. (Mamalateo, Victorino.Reviewer on Taxation, 2004)

    K INDS1. SELF- ASSESSMENT- one in which the tax is

    assessed by the taxpayer himself 2. DEFICIENCY ASSESSMENT- made by the tax

    assessor himself whereby the correct

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    18/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    amount of the tax is determinedafter an examination or investigationis conducted. The liability isdetermined and assessed for the

    following reason:a. amount ascertained exceeds thatwhich is shown as the tax by thetaxpayer in his return

    b. no amount of tax is shown in thereturn

    c. taxpayer did not file any returnat all

    3. ILLEGAL AND VOID ASSESSMENT-assessment wherein tax assessor hasno power to assess at all

    4. ERRONEOUS ASSESSMENT- assessor haspower to assess but errs in theexercise thereof

    BURDEN OF PROOF IN PRE-ASSESSMENT PROCEEDINGSThere is a presumption of correctness

    and good faith on the part of the CIR;thus, the burden lies on the taxpayer.Otherwise, the finding of the CIR will beconclusive and he will assess thetaxpayer. The same is true even if theCIR is wrong, if the taxpayer does notcontrovert. (Cagayan Robina Sugar Milling Co. vs. Court of Appeals, GR. No.

    122451, October 12, 2000)Reasons : a. lifeblood theoryb. presumption of regularity in

    performance of publicfunctions

    NOTE: Assessments by the BIR must haveon its face the law and facts upon whichthe presumption is made.

    PRINCIPLESGOVERNINGTAX ASSESSMENTS 1. Assessments are prima faciepresumed correct and made in goodfaith.

    2. It should be based on actualfacts.3. It is discretionary on the part of the Commissioner.

    4. The authority of theCommissioner to assess taxes may bedelegated, except the power to makefinal assessments.5. It must be directed to the right

    party.

    Authority of a Revenue Officer -pursuant to a Letter of Authority issuedby the Regional Director

    a. To examine taxpayers withinthe jurisdiction of the district inorder to collect the correctamount of tax;

    b. To recommend the assessment of any deficiency tax due in the samemanner that the said acts couldhave been performed by theRevenue Regional Director.

    General Rule: income tax returns areconfidential.Exception: inquiry into income taxreturns may be authorized-

    1. inspection is authorized upon writtenorder of the President of thePhilippines;

    2. inspection is authorized underFinance Regulations No. 33 of theSecretary of Finance;

    3. production of the tax return ismaterial evidence in a criminal casewherein the government is interestedin the result; or

    4. production or inspection thereof isauthorized by the taxpayer himself.

    Networth Method- inventory method of income tax verification.

    Applies the accounting principle:assets liabilities = networth

    Condition for its use:1. taxpayers books do not clearly

    reflect his income or the taxpayerhas no books, or if he has books, herefuses to produce them;

    2. there is evidence of possible sourceor sources of income to account forincreases in networth;

    3. there is a fixed starting point oropening networth; and

    4. there must be proper adjustments toconform with the income tax laws.

    POWERS AND DUTIES OF THE COMMISSIONER I. SECTION 4 (power to interpret tax lawand decide tax cases)

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    19/130

  • 7/31/2019 San Beda Tax

    20/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    5.Failure to submit required returns andother documentsIf a person

    i. fails to file a required return orreport at the time prescribed orii. willfully or otherwise files a

    false or fraudulent return,The Commissioner shall Make orAmend the return from

    i. his own knowledge orii. from such

    information as he can obtainthrough testimony or otherwisewhich shall be prima faciecorrect and sufficient for alllegal purposes

    6.Inventory-taking, Surveillance,Presumptive Gross SalesA. Commissioner may, at any time

    during the taxable year(a) order the inventory taking of

    goods of any taxpayer or(b) may place the business

    operations of any person(natural/juridical) underobservation or Surveillance,

    if there is reason to believethat such is not declaring hiscorrect income, sales orreceipts for tax purposes.

    The findings may be usedas basis for assessing the taxesand shall be deemed primafacie correct.

    B. Commissioner may prescribe aMinimum amount of grossreceipts, sales and taxable base(taking into account the sales andincome of other persons engagedin similar business):i. When a person has failed to

    issue receipts as required bysec.113 (Invoice requirementsfor VAT-registered persons)and Sec. 237 (Issuance of Receipts or CommercialInvoices) or

    ii. When the books of accounts orrecords do not correctlyreflect the declarations madeor required to be made in areturn,

    Such minimum amount shallbe considered correct.

    Terminate taxable periodCommissioner shall declare the tax

    period of a taxpayer Terminated andsend notice to the taxpayer of suchdecision with a request for immediatepayment of the tax when it has come tothe knowledge of the Commissioner:

    a) that a taxpayer is retiring frombusiness subject to tax or

    b) is intending to leave the Phils. orc) to remove his property therefrom

    ord) to hide or conceal his property

    ore) is performing any act tending to

    obstruct the proceedings for thecollection of tax

    8. Prescribe Real Property ValuesThe Commissioner is authorized to:a. Divide the Phils. into different

    zones or areas andb. Determine the fair market value of

    real properties located in eachzone or area

    For tax purposes, the value of the property shall be whichever ishigher of:a) Fair market value as

    determined by theCommissioner; or

    b) Fair market value as shown inthe schedule of values of the

    provincial and city assessors.

    9. Authority to Inquire into Bank DepositNotwithstanding R.A. 1405 (Bank

    Secrecy Law) the Commissioner isauthorized to inquire into the Bankdeposits of:(a) a decedent to determine his gross

    estate(b) a taxpayer who has filed an

    application to compromisepayment of tax liability by reasonof financial incapacity

    The taxpayers application for compromise shall not be considered unless he waives in writing his

    privilege under RA 1405 and other general or special laws. Such waiver

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    21/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    shall authorize the Commissioner toinquire into his bank deposits.

    10. Authority to Register tax agents(a) The Commissioner shall accredit

    and Register, individuals andgeneral professional partnershipsand their rep. who prepare andfile tax returns and other papersor who appear before the BIR

    (b)The Commissioner shall createnational and regionalaccreditation boards.

    Those who are denied accreditation may appeal the sameto the Sec. Of Finance who shall ruleon the appeal within 60 days from

    receipt of such appeal. Failure to doso within the prescribed period shallbe deemed as approval for accreditation.

    11. Authority to Prescribe AdditionalRequirements

    The Commissioner may prescribethe manner of compliance with anydocumentary or proceduralRequirement for the submission orpreparation of financial statementsaccompanying tax returns.

    IV. SECTION 7 (Authority to Delegate Power)

    12. The Commissioner may delegate thepowers vested in him to

    - subordinate officials with rankequivalent to Division Chief or higher,subject to limitations/restrictionsimposed under the rules andregulations

    EXCEPT, (the following powersshall NOT be delegated)a) power to Recommend the

    promulgation of rules andregulations by the Sec. of Finance

    b) power to Issue rulings of firstimpression or to Reverse, revokemodify any existing rule of theBIR

    c) power to Compromise or Abateany tax liability

    provided however that theregional evaluation board may

    compromise:1. assessments issued byregional offices involvingdeficiency taxes of P500,000or less and

    2. minor criminal violations asmay be determined by therules and regulations

    3. discovered by regional anddistrict officials

    Regional Evaluation Board iscomposed of :

    i. Regional Director as Chairmanii. Asst. Regional Directoriii. Heads of the Legal, Assessment

    and Collection Div.iv. Revenue District Officer having

    jurisdiction over the taxpayer

    d) power to Assign or reassigninternal revenue officers toestablishments wherearticles subject to excise taxare kept.

    V. S ECTIONS 8, 14, 15, 16, 17 (OtherPowers)13. Duty to ensure the provision and

    distribution of forms, receipts,certificates, and appliances, and theacknowledgment of payment of taxes(Sec. 8)

    14. Authority to administer oaths and totake testimony (Sec. 14)

    15. Authority to make arrests andseizures (Sec. 15)

    16. Authority to employ, assign orreassign internal revenue officersinvolved in excise tax functions toestablishments where articlessubject to excise tax are produced orkept (Sec. 16)

    17. Authority to assign or reassigninternal revenue officers andemployees of the BIR to other orspecial duties connected with the

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    22/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    enforcement or administration of therevenue laws (Sec. 17)

    ARE LEGAL OFFICERS OF THE BIR AUTHORIZED TO

    INSTITUTE APPEAL PROCEEDINGS WITHOUT THE PARTICIPATION OF THE SOLICITOR GENERAL?NO. The institution or

    commencement before a proper court of civil and criminal actions and proceedingsarising under the Tax Reform Act whichshall be conducted by legal officers of the BIR is not in dispute. An appeal fromsuch court, however, is not a matter of right. It is still the Solicitor General whohas the primary responsibility to appearfor the government in appellateproceedings. (Commissioner vs. La

    Suerte Cigar and Cigarette Factory, GRNo. 144942, July 4, 2002)

    SOURCES OF R EVENUEThe following taxes, fees and charges

    are deemed to be national internalrevenue taxes. (Sec. 21, NIRC)1. Income tax2. Estate and donor's taxes3. Value-added tax4. Other percentage taxes5. Excise taxes6. Documentary stamp taxes7. Such other taxes as are or hereafter

    may be imposed and collected by theBureau of Internal Revenue.

    II. NATIONAL TAXATION

    A. INCOME TAXATION

    DEFINITIONSINCOME TAX tax on all yearly profits

    arising from property, possessions,trade or business, or as a tax on apersons income, emoluments,profits and the like (61 CJS 1559)

    tax on income, whethergross or net. (27 Am. Jur. 308)

    INCOME all wealth, which flows into thetaxpayer other than as a merereturn of capital.

    CAPITAL resource of person, which can beused in producing goods andservices.

    Income Capital

    All wealth, whichflows into the

    taxpayer other thanas a mere return of capital.

    Fund or propertywhich can be used

    in producing goodsor services

    Flow of Wealth Fund or property

    Source of wealth Wealth

    R EQUISITES FOR INCOME TO BE TAXABLE1. There must be a gain or profit.2. The gain must be realized or

    received.3. The gain must not be excluded by law

    or treaty from taxation.TESTS ON TAXABILITYOF INCOME 1. Flow of Wealth Test The

    determining factor for theimposition of income tax iswhether any gain was derivedfrom the transaction.

    1. Realization Test - unless theincome is deemed "realized,"there is no taxable income.

    2. Economic-Benefit PrincipleTest -flow of wealth realized is taxableonly to the extent that thetaxpayer is economicallybenefited.

    CRITERIA IN IMPOSING INCOME TAX1. Citizenship Principle A citizen of thePhilippines is subject to Philippineincome tax (a.) on his worldwide income,if he resides in the Philippines, or (b.)only on his income from sources withinthe Philippines, if he qualifies asnonresident citizen.2. Residence Principle resident alien isliable to pay income tax on his incomefrom sources within the Philippines butexempt from tax on his income fromsources outside the Philippines.3. Source Principle An alien is subjectto Philippine income tax because hederives income from sources within thePhilippines. Thus, a nonresident alien isliable to pay Philippine income tax on hisincome from sources within thePhilippines such as dividend, interest,

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    23/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    rent, or royalty, despite the fact that hehas not set foot in the Philippines.

    CLASSIFICATION OF TAXPAYERS

    Individualsa. citizens

    (1) resident citizens (RC)(2) non-resident citizens (NRC)

    b. aliens(1) resident aliens (RA)(2) non-resident aliens (NRA)

    (a) engaged in trade orbusiness within the Phils.(NRAETB)

    (b) not engaged in trade orbusiness within thePhilippines (NRANETB)

    Corporationsa. Domestic (DC)b. Foreign

    (1) resident foreigncorporation (RFC)(2) non-resident foreigncorporation (NRFC)

    EstatesTrustsPartnerships

    A. INDIVIDUALS

    WHO ARE TAXABLE?1. Resident Citizen2. Non-resident Citizen

    A non-resident citizen means, aFilipino citizen:a. who establishes to the

    satisfaction of the Commissionerthe fact of his physical presenceabroad with a definite intentionto reside therein;

    b. who leaves the Philippines duringthe taxable year to resideabroad, either as an immigrant orfor employment on a permanentbasis;

    c. who works and derives incomefrom abroad and whoseemployment thereat requires himto be physically present abroadmost of the time during thetaxable year;

    d. who is previously considered as a

    non-resident and who arrives in

    the Philippines at anytime duringthe taxable year to residethereat permanently shall beconsidered non-resident for the

    taxable year in which he arrivesin the Philippines with respect tohis income derived from sourcesabroad until the date of hisarrival [Sec.22 (E), NIRC]

    NOTE: An overseas contract worker(OCW) is taxable only on incomederived from sources within thePhilippines. [Sec. 23 (B)(C)]

    A seaman is considered as anOCW provided the followingrequirements are met:

    1. receives compensation for servicesrendered abroad as a member of the complement of a vessel; and

    2. such vessel is engaged exclusivelyin international trade.

    Based on the above provisions,there are three (3) types of nonresidentcitizens, namely: (1) immigrants; (2)employees of a foreign entity on apermanent basis; and(3) overseas contract workers.Immigrants and employees of a foreignentity on a permanent basis are treatedas nonresident citizens from the timethey depart from the Philippines.However, overseas contract workersmust be physically present abroad mostof the time during the calendar year toqualify as nonresident citizens.

    3. Resident alien - means an individualwhose residence is within thePhilippines and who is not a citizenthereof. [Sec.22 (F, NIRC)]

    4. Non-resident alien engaged in tradeor business within the Philippines.(NRAETB)

    A non-resident alien means anindividual whose residence is notwithin the Philippines and who is nota citizen thereof. [Sec.22 (G)]

    The term trade or businessincludes the performance of thefunctions of a public office. [Sec. 22(S)]

    The term trade, business or profession shall not includeperformance of services by the

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    24/130

  • 7/31/2019 San Beda Tax

    25/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    ESTATES UNDER J UDICIALSETTLEMENTA. During the Pendency of the

    SettlementGeneral Rule: An estate underjudicial settlement is subject toincome tax in the same manner asindividuals. Its status is the same asthe status of the decedent prior tohis death.Exceptions:1. The entitlement to personal

    exemption is limited only toP20,000.

    2. No additional exemption isallowed.

    3. The distribution to the heirsduring the taxable year of estateincome is deductible from thetaxable income of the estate.Such distributed income shallform part of the respective heirstaxable income.

    Where no suchdistribution to the heirs is madeduring the taxable year that theincome is earned, and suchincome is subjected to incometax payment by the estate, thesubsequent distribution thereof isno longer taxable on the part of the recipient.

    B. TERMINATION OF THE J UDICIAL SETTLEMENT (WHERE THE HEIRS STILL DO NOT DIVIDE THE PROPERTY)1. If the heirs contribute to the

    estate money, property, orindustry with intention to dividethe profits between/amongthemselves, an unregisteredpartnership is created and theestate becomes liable for thepayment of corporate incometax. (Evangelista vs. Collector,GR No. L-9996, October 15,1957; Oa vs. Commissioner, GRNo. L-19342, May 25, 1972)

    2. If the heirs, without contributingmoney, property or industry toimprove the estate, simply dividethe fruits thereof between/among themselves, aco-ownership is created, and

    individual income tax is imposed

    on the income received by eachof the heirs, payable in theirseparate and individual capacity.(Pascual vs. Commissioner, GR

    No. L-78133, October 18, 1988;Obillos vs. Commissioner, GR No.L-68118, October 29, 1985)

    ESTATES N OT UNDER J UDICIALSETTLEMENTPending the extrajudicial

    settlement, either of the followingsituations may arise:1. If the heirs contribute money,

    property, or industry to the estatewith the intention of dividing theprofits between/among themselves,an unregistered partnership is

    created and the estate becomesliable for the payment of corporateincome tax; or

    2. If the heirs, without contributingmoney, property or industry to theestate, simply divide the fruitsthereof between/among themselves,a co-ownership is created and incometax is imposed on the incomereceived by each of the heirs,payable in their separate andindividual capacity.

    TRUST A right to the property, whetherreal or personal, held by one person forthe benefit of another.

    WHEN TRUSTS ARE TAXABLEENTITIES1. A trust, the income of which is to be

    accumulated2. A trust in which the fiduciary may, at

    his discretion, either distribute oraccumulate the income.

    R ULES ON TAXABILITYOF THE INCOME OF A TRUST

    1. The income of the trust for thetaxable year which is to bedistributed to the beneficiaries

    filing and payment of tax lie on thebeneficiaries.2. The income of the trust which isto be accumulated or held for futuredistribution whether consisting of ordinary income or gain from the saleof assets included in the "corpus" of the estate filing of return and

    payment of tax become the burdenof the trustee or fiduciary.

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    26/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    Exceptions :a. In the case of a revocable trust,

    the income of the trust will bereturned by the grantor.

    b. In a trust where the income isheld for the benefit of thegrantor, the income of the trustbecomes income to the grantor.

    c. In the case of trustadministered in a foreigncountry, the income of the trust;undiminished by any amountdistributed to the beneficiariesshall be taxed to the trustee.

    IRREVOCABLE TRUSTS (irrevocable both as tocorpus and as to income)

    Trust itself, through the trustee orfiduciary, is liable for the payment of income tax. Taxed exactly in the sameway as estates under judicial settlementand its status as an individual is that of the trustor. It is entitled to the minimumpersonal exemption (P20,000) anddistribution of trust income during thetaxable year to the beneficiaries isdeductible from the trusts taxableincome.

    R EVOCABLE TRUSTS the trustor, not thetrust itself, is subject to the payment of income tax on the trust income.

    EXEMPTION OF EMPLOYEES TRUST Provided: 1. the employees trust must be part of

    a pension, stock bonus or profitsharing plan of the employer for thebenefit of some or all of hisemployees;

    2. contributions are made to the trust

    by such employer, or suchemployees, or both;3. such contributions are made for the

    purpose of distributing to suchemployees both the earnings andprincipal of the fund accumulated bythe trust, and

    4. that the trust instrument makes itimpossible for any part of the trustcorpus or income to be used for, ordiverted to, purposes other than theexclusive benefit of such employees.(Sec. 60B, NIRC)

    Tax exemption is likewise to beenjoyed by the income of the pensiontrust ; otherwise, taxation of thoseearnings would result in a diminution of

    accumulated income and reducewhatever the trust beneficiaries wouldreceive out of the trust fund.(Commissioner vs. Court of Appeals,Court of Tax Appeals and GCLRetirement Plans, GR No. 95022, March23, 1992)

    D. PARTNERSHIPS

    K INDS OF PARTNERSHIP FOR TAX PURPOSES UNDER THE NIRC

    1. General ProfessionalPartnerships (GPP) - formed bypersons for:a. the sole purpose of exercising a

    common profession and b. no part of the income of which is

    derived from engaging in anytrade or business. [Sec. 22(B),NIRC].

    2. Taxable or Business Partnership

    All other partnerships exceptgeneral professional partnerships no

    matter, how created or organized. Itincludes unregistered joint venturesand business partnerships.

    However, joint ventures are nottaxables as corporations when it is;(a) undertaking construction projects(b) engaged in petroleum, coal andother energy operation under aservice contract with the government

    General co-partnerships (GCP)are partnerships, which are by lawassimilated to be within the contextof, and so legally contemplated as,corporations. The partnership itself issubject to corporate taxation. Theindividual partners are consideredstockholders and, therefore, profitsdistributed to them by thepartnership are taxable as dividends.

    The taxable income for a taxableyear, after deducting the corporateincome tax imposed therein, shall bedeemed to have been actually or constructively received by thepartners in the same taxable yearand shall be taxed to them in their

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    27/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    individual capacity whether actually distributed or not . [Sec. 73(D), NIRC]

    LIABILITYOF A PARTNERSHIP

    1. General ProfessionalPartnership .- They are not subjectto income tax , but are required tofile returns of their income for thepurpose of furnishing information asto the share of each partner in thenet gain or profit, which each partnershall include in his individual return.The partnership shall act as thewithholding agent.

    The net income (income fordistribution) shall be computed in thesame manner as a corporation. Dateof filing of the return is April 15 of each year.2. Taxable or Business Partnership- The income tax of this type of Partnership is computed and taxed like that of a corporation . This kindof partnership, like a regularcorporation, is also required to file aquarterly corporate income taxreturn. Filing and payment of quarterly return is within 60 daysafter the end of each quarter while

    the annual return is on or beforeApril 15 of the following year.

    LIABILITYOF A PARTNER Rules:

    1. Share of a partner in generalprofessional Partnershipa. Each partner shall report as

    gross income (business income)his distributed share actually orconstructively received in the netincome of the partnership. (Sec.26, NIRC) [The same share shall

    be subject to creditablewithholding tax of 10%.] Theyare liable in their separate and individual capacity .

    b. Share of a partner in the loss of a general professionalpartnership may be taken by theindividual partner in his return of income.

    c. Each partner in a generalprofessional partnership shall,report as gross income hisdistributed share in the net

    income of the GPP, based on hisagreed ratio, whether he , availsof itemized or optional standarddeduction.

    d. Payments made to a partner of a GPP for services rendered shallbe considered as ordinary business income subject to Sec.24A (Effective January 1, 1982)

    2. Share of a partner in Taxable orBusiness partnershipa. Share of a partner in the net

    income of a taxable or businesspartnership (dividend) shall besubject to a final tax as follows. Resident Citizen, Non-

    resident Citizen and ResidentAlien (2000 and onward) 10% (Sec. 24B2)

    Non-resident Alien engagedin trade or business 20%(Sec. 25 A2)

    Non-resident alien notengaged in trade or business 25% (Sec. 25B)

    b. Share of a partner in the loss of a taxable or business partnershipmaybe taken by the individualpartner in his return of income.

    c. Payments made to a partner of a business or taxable partnershipfor services rendered shall beconsidered as compensationincome subject to sec. 24A.

    KINDS OF INCOME TAXESUNDER THE NIRC

    1. Net Income Tax2. Optional Corporate Income tax3. Minimum Corporate Income Tax4. Improperly Accumulated Earnings

    Tax5. Preferential Rates or Special Rates of

    Income Tax6. Gross Income Tax7. Final Income Tax8. Fringe Benefits Tax

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    28/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    9. Capital Gains Tax(1) NET INCOME TAX

    DEFINITION: Means gross income less

    deductions and/or personal andadditional exemptions (Sec. 31, NIRC)

    NET INCOME TAX FORMULAEntire IncomeLess: Exclusions and Income subject

    to Final Tax (e.g. PassiveIncome)

    Gross IncomeLess: Deductions (and/or additional

    exemptions, if applicable)Net Taxable Income

    Multiply by: Tax Rate (%)Net Income Tax DueLess: Tax Credit, if anyTax Still due, if any

    GROSS INCOME

    DEFINITION: Means all income derived fromwhatever source, including but notlimited to the following (Sec. 32)

    a. Compensation;b. Gross income from

    profession, trade or business;c. Gains form dealings in

    property;d. Interests;e. Rents;f. Royalties;g. Dividends;h. Annuities;i. Prizes and winnings;j. Pensions;k. Partners share in the net

    income of the general professionalpartnership

    See Annex D for detailed discussionof items.

    K INDS OF DIVIDENDS1. Cash

    and Property DividendsIndividual Taxpayer

    a. From Domestic Corporations

    RC, NRC, RA 10% (Sec. 24A)

    NRAETB 20%

    (Sec. 25A2)

    NRANETB 25%on gross income (Sec. 25B)

    b. From Foreign Corporations

    RC, NRC, RA,NRAETB 5-32% (Sec. 24,25A1)

    NRANETB 25%on gross income (Sec. 25B)

    Corporate Taxpayera. Foreign to Domestic Corp. 32%

    (Sec. 32A)b. Domestic to Domestic Corp.

    Exempt ; intercorporatedividends (Sec. 27D)

    c. Domestic to Foreign Corp. - Resident Foreign

    Corp. Exempt (Sec. 28 [A] 7d)

    NonresidentForeign Corp. 15% subjectto the condition stated inSec. 28 [B] 5 . Otherwise, itshall be taxed at 32%. (SeeCommissioner vs. Procter and Gamble, GR No. 66838,December 2, 1991)

    2. StockDividendsGeneral rule: Not subject to taxbecause it does not constituteincome ; it represents transfer of surplus to capital account. (Sec. 73B,1997 NIRC)Exceptions:a. Sec. 73B, 1997 NIRC

    (1) there is redemption orcancellation

    (2) the transaction involves stockdividends, and

    (3) the time and manner of the transaction makes itessentially equivalent to adistribution of taxabledividends. ( seeCommissioner vs. Court of

    Appeals, Court of Tax Appeals & ANSCOR, GR No.108576, Jan. 30, 1999)

    b. the recipient is other than theshareholder (Bachrach vs.Seifert, GR No. L-2659, October 12, 1950)

    TAXATION LAW COMMITTEE CHAIRPERSON : Charmaine Torres ASST . C HAIRPERSON : Rhohail Castro EDP : Rachelle Saya SUBJECT HEADS: Jemina

    Sy, Casiano Ilagan, Jr., Ryan Co, Edwin Torres :MEMBERS : Marita Lourdes Azur, Edizer Enriquez, Christian Cabrera, JhundeeGuillermo

  • 7/31/2019 San Beda Tax

    29/130

    San Beda College of Law1

    M EMORY AID IN TAXATION LAW

    c. change in the stockholdersequity results by virtue of thestock dividend issuance.

    3. Liquidating Dividends When acorporation distributes all of its assets incomplete liquidation or dissolution, thegain realized or loss sustained by thestockholder, whether individual orcorporation, is taxable income ordeductible loss, as the case may be. (Sec.73A)

    A liquidating dividend is nota dividend income . Thetransaction is considered a saleor exchange of property betweenthe corporation and the

    stockholder.

    EXCLUSIONSFROM GROSS INCOMENOTE : Under the 1997 Tax Code, the termexclusions refers to items that are notincluded in the determination of grossincome either because:

    (a) they represent return of capitalor are not income, gain or profit; or

    (b) they are subject to another kindof internal revenue tax; or

    (c) they are income, gain or profitthat are expressly exempt form incometax under the constitution, tax treaty,Tax Code, or a general or special law.

    1. Proceeds of life insurance paid byreason of the death of the insured tohis estate or to any beneficiary(individual, partnership, orcorporation, but not a transferee fora valuable consideration), directly orin trust.

    NOTE : if the proceeds areretained by the insurer, the interestthereon is taxable;

    2. Return of insurance premium;NOTE : if such amounts (when added toamounts already received before thetaxable year under such contracts)exceed the aggregate premiums orconsiderations paid (whether or notpaid during the taxable year), thenthe excess shall be included in thegross income. However, in the case of a transfer for a valuableconsideration, by assignment or

    otherwise, of a life insurance,

    endowment or annuity contract, orany interest therein, only the actualvalue of such consideration and theamount of the premiums and other

    sums subsequently paid by thetransferee are exempt from taxation.No loss is realized on surrender of alife insurance policy for its surrendervalue.

    3. Gift, bequest or deviseGifts, bequests, and devises

    (which are subject to estate or gifttaxes) are excluded, but not theincome from such property. If theamount received is on account of services rendered, whetherconstituting a demandable debt