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Not as sweet as before

A recent issuance by the Bureau of Internal Revenue (BIR) has caused a lot of consternation in the taxpaying public (well, at least in the sugar industry). I am referring to Revenue Regulations (RR) No.13-2008, which consolidated the regulations on the advance value-added tax (VAT) on the sale of refined sugar. Two provisions appear to be the root of the controversy: the requirement for the payment of advance VAT before the withdrawal of sugar from the mill or refinery, and the conditions imposed on sugar cooperatives before they are deemed exempt from the payment of advance VAT. The main argument advanced by those opposed to the payment and collection of advance VAT is the lack of basis in the Tax Code for such collection, nor any provision that allows the collection of an advance VAT. They also argue that the advance VAT imposed on the sugar industry is discriminatory since it is not applied to other producers. The Tax Code empowers the secretary of finance to promulgate all needed rules for the effective enforcement of the provisions of the tax law. It also grants the commissioner the power to prescribe additional requirements for tax administration and enforcement. This rule-making power has always been described as a delegated power which may not be used to expand or enlarge the scope of the law they are supposed to enforce. The interpretation of the rule-making power can be as broad as to include the determination by the commissioner and the secretary of finance of the manner in which the intent of the law is most efficiently implemented. In this case, they have determined that VAT collected in advance will be the most efficient manner of implementing the imposition of VAT on the sale of sugar withdrawn from the refinery or mill. Thus, the revenue regulation does not create a new tax, it merely provides for the manner and the time of collection of the VAT. It should be noted that advance VAT has been in our tax system as early as 1989 with the BIR issuing several regulations on the topic. Furthermore, it is not only the sugar industry that is subjected to advance VAT, the same being collected on flour, as well.

The second issue that has earned the ire of the sugar industry is the addition of certain conditions before a cooperative can be exempted from the payment of advance VAT. The Tax Code provides for an outright exemption from VAT for sales by agricultural cooperatives. However, a careful reading of the new regulations reveals that not all withdrawals by an agricultural cooperative will be entitled to the exemption from the payment of advance VAT. The rules are summarized as follows: The withdrawal of refined sugar by the agricultural cooperative, which is the agricultural producer of the sugar cane, for sale to members is not subject to advance VAT. Sale to nonmembers shall not be subject to advance VAT only if the cooperative is the agricultural producer of the sugar cane. On the other hand, sales by a registered cooperative to another agricultural cooperative are not subject to advance VAT only if the seller-cooperative is the producer of the sugar. If the seller-cooperative is not an agricultural producer but merely purchases the sugar cane or the raw sugar from planter-members, or the raw sugar is transferred to the cooperative through assignment, the sale of the resulting refined sugar to another agricultural cooperative shall be subject to advance VAT before withdrawal of the refined sugar from the refinery is allowed. To determine the entitlement to the exemption from advance VAT, it is important to determine when a cooperative is the producer of the sugar. A cooperative is said to be the producer of the sugar if it is the tiller of the land it owns or leases, incurs cost of agricultural production of the sugar and produces the sugar cane to be refined. Thus, RR 13-2008 succinctly summarizes that withdrawal of refined sugar by a cooperative which is not the agricultural producer of the sugar cane shall, in all instances, be subject to advance payment of VAT. RR 13-2008 also provides for the filing of various information returns which will enable the BIR to keep track of withdrawals from refineries and mills, as well as the procedure for securing the certificate of advance payment of VAT, which will facilitate the withdrawal of sugar from the refinery or mill. The BIR has made it more difficult to withdraw sugar from various mills and refineries, but it has made it easier for itself to collect VAT on the sugar industry.