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TAXES: enforced proportional contributions from persons and property, levied by the State
by virtue of its sovereignty, for the support of the government and for all public needs.
TO TAX: to impose a financial charge or other levy upon a tax payer by a state or the
functional equivalent of a state.
Amount of tax collected by the taxing authority from the public is always greater than the
amount to be expended for public purpose.
COMPLIANCE COST: resulting difference; which includes labor cost and other expenses
incurred in complying with tax laws and rules.
HYPOTHECATION: levy of a tax for a specified end (e.g. imposing a tax on vehicles to be used
on road construction rehabilitation and maintenance)
TAXATION DEFINED
Governments perspective
Power by which the
sovereign, through its lawmaking body, raises revenue
to defray the necessary
expenses
of
the
government.
A way of apportioning the
costs of government among
those who in some measure
are privileged to enjoy its
benefits and must bear its
burdens.
Taxpayers perspective
Compulsory transfer of
money (or goods) from
private
individuals,
institutions or groups to the
government. It may be
levied upon wealth or
income, or in the form of a
surcharge on prices.
Economists perspective
Non-penal, yet compulsory
transfer of resources from
the private to the public
sector levied on a basis of
predetermined criteria and
without reference to specific
benefit received.
Tax rate
Describes burden ration, usually expressed as a
percentage, at which a person, property,
privileges or occupation is taxed.
Impact of tax
Person from whom government collects
money in first instance. Refers to liability for
the tax.
Incidence of tax
Person who finally bears the burden of a
tax.
Ex. Amount of sales tax paid may be shifted or passed on by the seller to the buyer. What is
transferred is not the liability for the tax, but the tax burden. A seller who is directly and
legally liable for payment of an indirect tax, such as the VAT on goods or services is not
necessarily the person who ultimately bears the burden of the same tax. It is the final
purchaser or consumer of such goods or services who, although not directly and legally liable
for the payment, ultimately bears the burden of the tax.
Tax base erosion
When traditional taxable components of the
tax based are no longer representative of the
economy at large, this results to
demographic changes, relative changes in
production, stagnation or inflationary effects.
May also result from use of aggressive tax
strategies by taxpayers (eg. Less than
appropriate income is shown and more than
deduction is claimed).
Tax pyramiding
When sales taxes are applied to both inputs
and outputs, thus shifting the tax burden to
the ultimate consumer. In this situation,
some or all stages of production are taxed,
with the accumulation borne by the
consumer at the point of sale.
Ex. When a product is taxed at the pre-retail
stage and thus, tax is imposed on successive
pairs of buyers and sellers rather than only
at the final sale of the product to the
ultimate consumer.
Violates the uniformity and neutrality
principles of taxation.
Neutral tax
Tax that does not cause individuals or firms
to shift their economic choices, such as to
choose among different goods, inputs,
locations etc.
Tax structure that does not change the
incentives in the market.
Ex. Poll tax (e.g. Community Tax Certificate).
Statutory taxpayer
Person on whom the tax
is imposed by law and
who paid the same even
if he shifts the burden to
another.
Extraterritorial taxation
Tax
is
imposed
on
property/subject outside the
State.
Tax exporting
Shifting of a tax burden to nonresidents
of
a
given
jurisdiction. Exporting can be
achieved indirectly by taxing
imports
or
through
intergovernmental
transfer
mechanisms.
e.
Revenue Neutral
Taxing
procedure
that
allows
the
government to still receive the same amount
of money despite changes in tax laws.
Government may lower taxes for one group
and raise for another. This allows revenue to
remain unchanged.
2.
Despite natural reluctance to surrender part of ones income to taxing authorities, every
person who is able must contribute his share in the burden of running the government.
Government is expected to respond in the form of tangible and intangible benefits.
BPI-FSB vs. CA
HELD: If State expects its taxpayers to observe fairness and honesty in paying their taxes, so
must it apply the same standard against itself in refunding excess payments. When it is
undisputed that a taxpayer is entitled to a refund, the State should not invoke technicalities
to keep money not belonging to it. No one, not even the State, should enrich oneself at the
expense of another.
It is a requirement that it be exercised in accordance of the prescribed procedure. If not, the
taxpayer has a right to complain.
3.
Social contract theoryin an organized society, members agree to define and limit the rights
and duties of each. Principal attribute of sovereignty is the exercise of taxing power which
derives its source from the existence of the state whose social contract with its citizens
obliges it to promote public interest and common good.
REGULATORY PURPOSE police power may sometimes use the taxing power as an
implement for the attainment of a legitimate police objective.
Powell vs. Pennsylvania
HELD: If massage parlors are found to be mere fronts for prostitution, they may be subjected
to such onerous taxes as to practically force them to stop operating.
PAL vs. Edu
HELD: Law requiring owners of vehicles to pay for their registration is to raise funds for
construction and maintenance of highways. Fees may be regarded as taxes even though they
also sere as an instrument of regulation. If the purpose is revenue, or if revenue is one of the
real and substantial purposes, exaction is called a TAX.
SUMPTUARY PURPOSE OF TAXATION: non-revenue or regulatory purpose of taxation.
REDISTRIBUTION OF WEALTH/REDUCITON OF SOCIAL INEQUALITYthere is an effort to
apportion the costs of government among the people which in a way thwarts the undue
concentration of wealth in the hands of a few individuals.
PROGESSIVITY: those who are able to pay more should shoulder the bigger portion of tax
burden.
Taxation is now being used as an implement for exercise of the power of eminent domain.
Full reimbursement (peso for peso basis) is not necessary when the State uses taxation as an
implement of eminent domain.
Ex. Tax deduction does not offer full reimbursement of the senior citizen discount because it
only shaves money off the taxable income resulting to a partial recovery unlike a tax credit
which reduces the tax to be paid by the amount of discount. As such, it does not meet the
definition of just compensation. However, amendment to the law granting senior citizen
discount providing for tax deduction instead credit is not unconstitutional since the State can
impose upon private establishments the burden of partly subsidizing a government program.
REPRICING taxes may be levied to address externalities.
EXTERNALITIES: cost or benefit that is not transmitted through prices and is incurred by a
party who was not involved as either a buyer or seller of the goods or services causing the
cost or benefit.
External cost
Negative externality/cost of an externality
External benefit
Positive/benefit of an externality
Contribution in the form of moneythere is no law prohibiting payment in some other form
of property.
However, State could determine in what manner taxes should be discharged.
1. Notes of legal tender do not apply to involuntary contributions exacted by a State
buy only to debts (obligations for payment of money founded on contracts,
whether express or implied).
2. Statute requiring payment to be collected in gold and silver coins was sustained on
2 grounds:
a. Right of each state to collect its taxes in such material as it might deem
expedient. Mode in which it should be exercised, were all equally within
the discretion of its legislature, except as restrained by its own
constitution; and
b. Legal tender act had no reference to taxes imposed by State authority,
but only to debts arising out of simple contracts or contracts of specialty,
which include judgments or recognizances.
Imposed, levied and collected for purpose of raising revenuetaxes may have regulatory or
economic purpose other than to generate funds.
To be used for public or governmental purposeit cannot be used for private purposes.
Levied by authority which has jurisdiction over the person, property, transaction, rights and
privilegesjurisdictional limitation has 2 questions:
1. Is there a sufficient relationship between the State exercising tax power and the
object of the exercise of that power?
2. Is the degree of contact sufficient to justify the states imposition of a particular
obligation?
Nature of taxing power
1. It is inherent and legislative.
Inherent
GR: power to tax is an incident of
sovereignty and is unlimited in its range,
acknowledging in its very nature no limits,
so that security against its abuse is to be
found only in the responsibility of this
legislature which imposes the tax on the
constituency who are to pay it.
Rule of taxation shall be uniform and
equitable and Congress shall evolve a
Legislative
Legislature lies the discretion to determine the
nature, object, extent, coverage and situs of
taxation. It has the authority to prescribe a
certain tax at a specific rate for a particular
public purpose.
Scopes of legislative power:
1. Purposes provided they are lawful
and public
2. Person, property, privileges or
3.
4.
5.
6.
7.
occupation to be taxed
Amount or rate
Kind of tax
Apportionment of tax (whether tax
shall be of general application or
limited to a particular locality, partly
general and partly local)
Situs
Mode or method of collection
Power is not granted in the Constitutionit merely constitutes limitations upon a power
which would be impractical without it
SEC 28(3), ART 6 CONSTI. Charitable institutions, churches and parsonages or convents
appurtenant thereto, mosques, nonprofit cemeteries and all lands, buildings and
improvements, actually, directly and exclusively used for religion, charitable or educational
purposes shall be exempt from taxation.
It is not a contract between the State and its citizensit operates in invitum, which means
that it is in no way depend on the will or contractual assent, expressed or implied, of the
person taxed.
Taxes are obligations arising from law and not from contracts because of lack of consent or
choice.
It is not political in nature
Co Kim Chan vs. Valdes Tan Keh
HELD: Internal revenue laws were continued in force during the period of enemy occupation
and in effect were enforced by the occupation government. As a matter of fact, income tax
returns were filed during that period and income tax payment were effected and considered
valid and legal. Such tax laws are deemed to be the laws of occupied territory and not of the
occupying enemy.
Tax are personalliability cannot be shifted. Rights are transmissible but obligations are not.
Thus, heirs cannot be held liable beyond what they inherited for delinquent taxes of a
decedent.
Corporations tax delinquency cannot be enforced against its stockholders or related entities.
A corporation is vested by law with a separate and distinct personality. However,
stockholders may be held liable for the unpaid taxes of a dissolved corporation if it appears
that corporate assets have been passed into their hands. Same is true if stockholders have
unpaid subscriptions pursuant of the trust fund doctrine.
In case of indirect taxes, shifting of the burden to tax from the seller to the buyer is not
incompatible with the principle that taxes are personal liabilities. When seller passes on the
tax to his buyer, he is only shifting the tax burden, but not the liability, to the buyer as part of
the cost of the goods sold or services rendered.
It is unlimited in rangeit is not subject to any restrictions except in the discretion of the
authority which exercises it. Security against its abuse is to be founded only in the
responsibility of the legislature which imposes the tax on the constituency who pay it.
McCulloch vs. Maryland
HELD: Power to tax involves the power to destroy.
Panhandle vs. Mississippi
HELD: Debunked the ruling in McCullock vs. Maryland where it is held that "power to tax is
not the power to destroy while this court sits. The power to tax may include the power to
destroy if it is used as an implement of the police power in discouraging and in effect
ultimately prohibiting certain things or enterprises inimical to public welfare. But where the
power to tax is used solely for the purpose of raising revenues, modern view is that it cannot
be allowed to confiscate or destroy.
It is imprescriptiblewithout exception, taxes being the lifeblood of the government.
However, statutes may provide for prescriptive periods for the collection of particular kinds
of taxes when government has not by express statutory provision, provided a limitation upon
its right to assess unpaid taxes, such right is imprescriptible.
HELD: The government is not bound by any statute of limitations, unless Congress has clearly
manifested its intention that it should be so bound.
Aspects of taxation
1. Aspects (LAP)
2
a. Levy
3
b. Assessment and Collection
4
c. Payment and/or exercise of remedies
2.
Elasticitytax system should be fairly elastic so that if at any time the government is in need
of more funds, it should increase its financial resources without incurring any additional cost
of collection.
Simplicitytax system should be fairly simple, plain, and intelligible to the taxpayer.
Diversitysystem should include a large number of taxes which are economical; government
should collect revenue by levying direct and indirect taxes.
2.
Debt
Due to the government in its corporate
capacity
Sum of money due upon contract, express or
implied or one which is evidenced by
judgment
However, tax in a broad sense may be a debt, so that interest on estate and inheritance may
be deducted as interest on indebtedness:
a. Tax and debt
Tax
Debt
Does not proceed from contract
Generally the result of the contract
Obligations created by law and Obligation created by a contract
governed by special laws and
falsification and non-payment of
such taxes impose criminal
liabilities
May be off-set
May arise out of acts of private
May not be off-set
individuals
Can only be imposed by public
authority
Can be assigned
May be paid in money, property or
Cannot be assigned
service
Generally payable in money
Draw interest if stipulated or there
Do not draw interest unless is default
delinquent
b.
ART 1200. When all requisites mentioned in ART 1279 are present, compensation
takes effect by operation of law and extinguished both debts to the concurrent
amount, even though the creditors and debtors are not aware of the
compensation.
Compensation may be applied if these circumstances are present:
1. Both the claim of the Government for inheritance tax and claim for estate for
services rendered have already become due, demandable and fully liquidated.
2. An amount for the claim of the estate had already been appropriated by the
Government by virtue of law.
CIR vs. Esso Standard
6
c.
d.
Compensation had been the practice in the past can set no valid
precedent. Such practice has no legal basis.
illegally possess some of the debtors property. ( Doctrine does not apply in the
Philippines.)
Applied in taxation
1. It allows a taxpayer to set off previously overpaid taxes due, even though the
taxpayer is time-bared from claiming refund on previous taxes. It applies only if the
Statute of Limitation has created an inequitable result. It is a defensive remedy
against mitigation of damages.
2.
3.
engaging in a certain
business
or
profession is not poll
tax.
2.
Purpose
Classification of taxes
1. Subject matter
Personal, capitation
or poll
Taxes of a fixed
amount upon all
persons or upon all
persons of a certain
class, resident within
a specified territory,
without regard to
their property or
occupations in which
they
may
be
engaged.
Property
Excise or privilege
Charge
imposed
upon performance
of
an
act,
enjoyment of a
privilege
or
engaging in an
occupation.
Taxes of a specified
amount upon each
person performing a
certain
act
or
It is measured by amount
of property owned by the
taxpayer on a given day,
and not on the total
However, these do
not
pertain
to
performance of an
activity, at least not
to
extent
of
equating
excise
with business.taxes.
Customs
duties
Charged upon
commodities
being
imported
or
exported.
Special or regulatory
Achieve social or economic goals irrespective
of whether revenue is actually raised or not.
Special tax is imposed for special public
purpose. Money raised shall be spent only for
such purpose and if such purpose has been
fulfilled, remaining amount shall be placed in
general funds of the government to be spent
for any general purpose.
3.
Direct
Imposed and absorbed by same person.
Personal tax
Those of a fixed
amount upon all
persons
of
a
certain class within
jurisdiction of the
taxing
power
without regard to
the amount of their
Direct tax
Both the incidence
of or liability for
the payment of tax
as well as impact or
burden of tax falls
on same person
and cannot be
shifted.
Indirect
Tax paid by a person other than one whom
it is imposed.
Taxes wherein liability for payment of tax
falls on one person to another.
Illustration
1. VAT is payable by any person, in
the course of trade and business.
It is applied to each stage of
production. Burden of paying the
amount may be shifted on to the
property.
Ex. Franchise tax: a
percentage
tax
imposed
on
franchise holders is
a direct liability of
the
franchise
grantee.
Those that are exacted from the very person
ho, it is intended or desired, should pay
them; they are impositions for which a
taxpayer is directly liable on the transaction
or business he is engaged in.
Ex. Income taxtaxes an individuals ability
to pay based on his income or net wealth.
2.
3.
5.
National
Imposed by Congress
6.
Rate or graduation
Proportional
Fixed rate regardless of tax
base.
Progressive or graduated
Tax rate and tax base are
directly proportional.
Regressive
Tax rate and tax base are
inversely proportional.
Local/municipal
imposed by local legislative bodies
Scope
General
Imposed throughout the state or civil
division for raising revenue for general
purposes on the ground of general public
interests.
7.
4.
Taxing authority
Specific
Levied for a special purpose for the benefit
of a part of a body politic resting upon the
supposition that a portion of the public is
specially benefited in the increase of the
value of property.
Basis of amount
Specific
Fixed amount by head or number or by some
standard of weight or measurement.
Specific
Imposes a specific
sum by the head or
number or by some
standard of weight or
measurement
and
which requires no
assessment beyond a
listing
and
classification of the
subject to be taxed.
8.
Excise
Privilege tax laid upon
the manufacture, sale
or consumption of
commodities within
the country .
Ad valorem (value)
Fixed proportion of value of property
with respect to which taxes are
assessed and require the intervention
of assessors or appraisers to estimate
the value of such property.
Others
Consumption
Imposed on consumable
commodities and services.
Sumptuary
Government levy on goods
considered
socially
undesirable, most commonly
alcohol and tobacco.
Flat
Charged no matter how
much value. It does not
change.
limitations
oppressive.
SALES
TAX:
indirect
consumption tax applied at
the retail level. These are
calculated by multiplying the
retain price of a good or
service by the tax rate.
Other source of revenue/funds and impositions
1. License fees: paid for the right granted by some competent authority to do an act
which, without such authority, would be illegal. It implies an imposition on the right
to use or dispose of a property, purpose a business, occupation or calling or
exercise a privilege.
a. SEC 147, LGC: municipalities may impose and collect such reasonable fees
on business and occupation, and (except professional tax) on practice of
any profession or calling commensurate with cost of regulation,
inspection and licensing before any person may engage in such business
or occupation.
b. Amount of fee is considered in determining whether for revenue or as
regulation.
Exemption from tax does not carry exemption from license fee. However,
if license fee is substantially more than cost of regulation, it may be
considered as tax and therefore covered by exemption. Authority to
exact fee does not carry power to collect tax.
Tax
Emerges from power of taxation
of State.
License fee
Emerges from police power of
State.
Amount
is
not
subject
to
2.
provided
not
regulation)
and
supervision
(surveillance).
EXCEPTION: when imposed to nonuseful occupations.
Taxes
Levied on land, persons, property, income,
business etc.
Special assessments
Levied on land.
Not and cannot be made a personal liability.
Of general application.
Ordinary tax
Provide the government with revenues
needed for the financing of state affairs.
Special assessment
Finance the improvement of particular
properties, with benefits of the improvement
accruing or inuring to the owners who pay
the assessment.
Refusal to pay may hold sanctions.
3.
4.
10
Tax
Enforced proportional contributes
persons and property.
from
Penalty
Punishment for violation of law or acts
deemed injurious. Thus, violation of tax may
give rise to imposition of penalty.
Imposed to regulate and rectify a conduct.
Police power
For promotion of general
welfare.
5.
Tollpayment or fee exacted by the authorities for some right or privilege (e.g.
passage along a road or over a bridge).
Taxes
Demand of sovereignty for purpose of
raising public revenue.
Toll
Compensation for the use by one of
anothers property.
Imposed by State.
7.
8.
9.
be
the
no
of a
Money is taken.
6.
Eminent domain
For public purpose.
2.
3.
Taxation may be used as an implement of the police power and eminent domain
11
b.
c.
Judicial review
1. Courts cannot review the wisdom of or advisability or expediency of a tax
SC is only allowed to settle actual controversies involving rights which are legally
demandable and enforceable and may not annul an act of the political
departments simply because the Court feels it is unwise or impractical.
2.
A private person is allowed to raise constitutional questions only if he can show that he has
personally suffered some actual or threatened injury as a result of the allegedly illegal
conduct of the government, injury is fairly traceable to the challenged action and injury is
likely to be redressed by a favorable action.
Party must show not only that law or act is invalid butalso that he has imminent danger of
sustaining some direct injury as a result of its enforcement and not merely that he suffers in
some indefinite way.
3.
Partys personal and substantial interest in a case such that he has sustained or will sustain
direct injury as a result of the governmental act being challenged; Right of appearance in a
court of justice on a given question; in private suits, standing is governed by real parties in
interest (SEC 2, RULE 3);
REAL PARTY: party who stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit.
INTEREST: material interest in an issue affected by the decree.
MERE INTEREST: mere interest in the question involved or mere incidental interest.
d.
4.
5.
6.
Taxpayers suit
Citizen and taxpayer suits
Plaintiff in a taxpayers suit
Plaintiff is affected by the expenditure of
public funds.
Right a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use
of public funds to his injury cannot be denied
12
DIRECT INJURY TEST: for a private individual to invoke judicial power in determining the
validity of an executive or legislative action, he must have sustained direct injury and it is not
sufficient that he has general interest common to all members in public.
Taxpayer need not be a party to the contract to challenge its validity. As long as taxes are
involved, people have the right to question contracts entered into by the government.
Transcendental importance
Determinants
1. Character of funds or other assets involved in the case;
2. Presence of a clear case of disregard of a constitutional or statutory prohibition by
the public respondent agency or instrumentality of the government; and
3. Lack of any other party with a more direct and specific interest in raising the
questions being raised.
13
CHAPTER 2
INHERENT LIMITATIONS ON THE POWER OF TAXATION
A. THE POWER TO TAX HAS LIMITS
The power to tax is an inherent power but such power must still be exercised in
accordance with the inherent and constitutional limitations
If there exists conflicting interest between the taxing authorities and taxpayers, it
must be resolved in favor of the real purpose of taxation, which is, promotion of
common good.
If purpose of the tax is not stated, it is presumed that it is created for a public
purpose
Examples (presumption of public purpose)
o Pensions of war veterans assurance that a persons patriotism will be
acknowledged and rewarded
o Unemployment relief
o Support for the handicapped
o Care for the aged
o Scholarships for poor but deserving citizens
o Tax on sugar
o Oil Price Stabilization Fund oil industry is imbued with public interest,
and a dramatic increase in oil prices will result to economic crisis
Public service
2 Kinds of Limitations:
o Constitutional Limitation those provided for in the Constitution
o Inherent Limitations restrictions to the power to tax attached to its
nature
You cannot use public funds to promote an individuals interest, even if it may
incidentally result to the benefit of the public
Rationale: tax can be levied against one class of individuals in favor of another
class; you can ruin one class while favoring the other
If it is for a private purpose, it is robbery because government takes property of
another and then gives it in favor of another person.
The public purpose must exist at the time the law was enacted.
o Government may only use public funds for a public purpose
o The existence of public purpose determines its validity, not the incidental
benefit to the public
14
c.
d.
Rate of taxation
Rules of taxation
General rule: A state may not tax property lying outside its borders or lay an excise
or privilege tax upon the exercise or enjoyment of a right or privilege derived from
the laws of another state and therein exercised or enjoyed.
Taxation is an act of sovereignty which could only be exercised within states
territorial boundaries.
Taxes are paid for the protection and services provided by the taxing authority
which could not be provided outside the territorial limits of the taxing power.
Situs of taxation: situs is latin term which means situation, location or place.
Determination of situs: (S-NCR-L)
o (S) Subject matter of the tax- Situs may depend on what is being taxed:
excise/privilege, business, occupation, person, act or activity.
o (N) Nature/kind/ classification of the tax- situs may depend on what tax is
being levied: income tax, import duty, sales tax or real property tax.
o (C) Citizenship of the tax payer- situs may depend on which state the taxpayer
is a citizen of, or probably an alien, dual citizen, stateless or refugee.
o (R) Residenxe of the taxpayer- situs may depend on the residence of the
taxpayer: resident, non- resident.
o (L) Location of the property- situs may depend on the palce the thing or
property is located: within the Philippines or outside the Philippines.
F. GOVERNMENT EXEMPTION
15
Always remember that Exemption is the rule and taxation is the exception.
Definition of Terms
o RP (Republic of the Philippines) corporate government entity through
which the functions of government are exercised throughout the
Philippines.
o NG (National Government) entire machinery of the central government
as distinguished from different forms of local government
o GOCC (Government-Owned and Controlled Corporations) any agency
organized as a stock or non-stock corporation
o GA (Government Agency) any of the various units of the government
including a department, bureau, office, instrumentality, or GOCC, or LGU
or a distinct unit therein.
G. INTERNATIONAL COMITY
IC (Incorporation Clause)
16
12. Voting requirement in connection with the legislative grant of tax exemption
13. Non impairment of the jurisdiction of the Supreme court in tax cases;
14. Exemption from taxes of the revenues and assets of educational institutions,
including grants, endowments, donations and contributions
CHAPTER 3
CONSTITUTIONAL LIMITATIONS
DUE PROCESS
8
The power to tax involves the power to destroy. These were the famous words
penned by the great Chief Justice Marshall in 1819. As discussed in the preceding chapters,
the power to tax is the strongest of all the inherent powers of the State. As being unlimited in
its range, the 1987 Constitution has vested this power to the people who pay it, through their
9
representatives, the Legislature. Though the taxing power is characterized as such an
10
awesome power, it is not unconfined.
In the previous chapter, we have already discussed that taxing power, although
plenary in nature, is still subject to certain limitations. Some of these limitations are not to be
found in any statute, thus the term inherent limitations. In this chapter, we are now to
discuss the second type of limitations of the taxing power of the State The Constitutional
Limitations on Taxation. The 1987 Philippine Constitution provides the following limitations:
1.
2.
3.
4.
5.
6.
7.
Due process;
Equal protection;
Freedom of speech and of the press;
Non infringement of religious freedom and worship;
Non impairment of contracts;
Non imprisonment for dent or non payment of poll tax;
Appropriations, revenue, and tariff b ills shall originate exclusively originate
from the house of representatives;
8. Uniformity, equitability, and progressivity of taxation;
9. Power of Congress to delegate to the President the authority to fix tariff rates,
import and export quotas, etc.;
10. Veto power of the President;
11. Tax exemption of properties actually, directly, and exclusively used for
religious, charitable, and educational purposes;
No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws. (Sec. 1, Art III,
1987 Phil. Constitution)
In order that a tax statute may be validly imposed on the people, it must be lawful.
In other words, a tax law passed by the Congress of the Philippines must first be
constitutional. Under Section one (1) of the Bill of Rights (Art. III, 1987 Philippine
Constitution), the tax law must undergo due process for it amounts to an individuals
property (though minimal) being deprived from him. The due process clause is a
constitutional safeguard of the people from the government, which is the taxing authority. If
so proved that the tax law is violative of this constitutionally protected right, under the
principle of ubi jus ibi remedium, it shall be struck down. As in the words of Justice Bradley,
In judging what is due process of law, respect must be had to the cause and object of the
taking, whether under the taxing power, the power of eminent domain, or the power of the
assessment fir local improvements, or some of these; and, if found to be suitable or
admissible in the special case, it will be adjudged to be due process of law, but if found
11
arbitrary, oppressive, and unjust, it may be declared to be not due process of law.
1111
12
17
Procedural due process, on the other hand refers to the procedural limitations
13
placed on the manner in which a law is administered, applied or enforced. It is but
elementary in democratic forms of government that laws, especially those which impose a
tax obligation on its citizenry, be exercised in accordance with the prescribed procedure. This
is mandatory. To do otherwise shall give rise to a right which the taxpayer may use to ask the
Courts its succor. The tax collector may be stopped if the taxpayer can demonstrate that the
14
law has not been observed. In a case decided by the Supreme Court, it held that due
process was not observed when the trial court classified certain properties of the Roman
Catholic Church were tax exempt under the 1973 constitution where no court hearing was
15
conducted thereon.
the proper value of a taxable item or property, such act is considered as judicial in nature.
Thus, due process is satisfied by giving the opportunity to the taxpayer to be heard
17
respecting such assessment.
a.)
b.)
c.)
d.)
It is good to take note, that although the taxpayer is granted the right to have due
notice and hearing, such is only guaranteed when the tax to be imposed shall substantially
affect him. In other words, when the tax to be imposed by the government is not one which
could be changed by hearing the taxpayer, its absence does not violate the constitutional
safeguard. A persons right to due process is therefore not invaded. However, if such tax
would be in the nature of an ad valorem tax which utilizes the use of assessors to ascertain
13
EQUAL PROTECTION
No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws. (Sec. 1, Art III, 1987
Phil. Constitution)
17
18
nd
The second (2 ) constitutional limitation is found under the same provision of the
1987 Constitution as the due process clause. Aptly stated, not person shall be denied of the
equal protection of laws. The equal protection clause requires that persons similarly situated
22
should be treated alike, both as to rights conferred and responsibilities imposed. It does
not, however, require equal treatment of all persons, regardless of their situation. The
Constitutional safeguard merely requires that all persons who are within the ambit of the
statute shall be treated alike, under like circumstances and conditions, both with respect to
23
the privileges acquired and liabilities imposed.
The power of the State to classify, in relation to taxation, property and persons to
be taxed, the rates of such taxes, as well as the methods of assessment, valuation, and
24
collection is unquestioned, but is not absolute. Such classification must be based upon real
and substantial differences between the persons, property or privileges, and those not taxed
must bear some reasonable relation to the object or purpose of legislation or to some
25
permissible governmental policy or legitimate end of governmental action. Thus, the
equality of taxation rule is not violated if classifications or distinctions made are based on
26
substantial and reasonable differences.
GOALS IN DISTRIBUTION
Two different goals in distribution arise when fairness or equality are looked at,
vertical and horizontal. The latter refers to the fair treatment of tax payers with the like
ability to pay. It prohibits the discrimination on the grounds such as race, gender, occupation,
27
28
etc. Stated differently, those similarly situated shall be similarly taxed. Meanwhile, the
former refers to the relative tax burden of tax paying units with different abilities to pay.
29
Vertical equity seeks to tax in a proportional or progressive way.
22
d.)
e.)
Exchange Equity and Fairness Taxpayers must, over the long run, receive the
appropriate value for the taxes they pay;
Process Equity and Fairness Taxpayers have a voice within the tax system,
are given due process and are treated with respect by the tax administrators;
Time Related Equity and Fairness Taxes are not unduly distorted when
income or wealth levels fluctuate over time;
Inter Group Equity and Fairness No group of taxpayers is favored to the
detriment of another without good cause; and,
Compliance Equity and Fairness All tax payers pay what they owe on a timely
30
basis.
23
Ibid.
Cruz, I. (2000). Constitutional law (2000 ed., p. 125). Quezon City, Metro Manila,
Philippines: Central Lawbook Pub.
32
Ormoc Sugar Co. Inc. v. Treasurer of Ormoc City, et al., L 23794, 17 FEB 1968.
31
19
There are four (4) primary reasons why freedom of expression, which encompasses
speech, the press, assembly and petition, is essential to a free society. First, the self
expression of an individual enables him to realize his full potential as a human being. Second,
enlightened judgment is possible if one considers all the facts and ideas and tests ones own
against it. It is vital to the attainment and advancement of knowledge. Third, it is necessary
to our system of governance. Democratic Societies development and advancement is largely
dependent on how well informed its citizenry is for if it would be otherwise, the result
would be tyranny and oppression. Lastly, it serves as a safeguard system of the public,
developing a system of checks and balances against the possible corrupt practices of the
33
State.
The provision of the constitution necessarily includes the liberty of the press which
is principally, although not exclusively, immunity from prior restraint and/or subsequent
34
censorship. To discuss further, it is not the censorship of the press per se which is the evil
sought to be prevented. It refers to any action of the government by means of which it might
prevent such free and general discussion of public matters as seems absolutely essential to
35
prepare the people for an intelligent exercise of their rights as citizens.
CURTAILMENT OF FREEDOM
Briefly put, immunity is granted to the press so as to help promote and develop an
informed citizenry. They exist as a vital source of public information. It sheds more light on
the public and business affairs of the nation than any other instrumentality of publicity.
Public opinion, as the most potent of all restraints against the corrupt actions and practices
of the government, is afforded protection by nothing less than the constitution itself. A free
press stands as one of the great interpreters between the government and the people. To
treat it otherwise, as to subject it to taxes, would amount to suppression and abridgement of
publicity results to the curtailment of press freedom and freedom of speech and of
36
expression.
It has been held though that although granted immunity from certain taxes, they
can still be subject to general taxes. However, taxes that may still be validly imposed upon
them must be fair, reasonable, and just, and in accordance with the persons right to the
equal protection of laws. It must not be used as a tool to abridge the freedom of press under
the guise of valid tax, as when it is exercised by the state arbitrarily and capriciously, singling
out the press from other businesses or if such taxes are imposed only on a select few press
members. In such case, the Supreme Court has acknowledged the potential for abuse is
37
present in differential taxation of the press.
RELIGIOUS FREEDOM
In accordance with the above stated provision, our Constitution and laws provide
an exemption from taxation properties which are devoted exclusively for religious purposes.
This grant of immunity of the fundamental law of the land and other tax laws were made to
further realize the declared principle of the State which is The Separation of the Church and
38
the State.
The Constitutional provision, like Sec. 1 of the Bill of Rights, can be further divided
in to 2 clauses: (a) the Non Establishment clause; and (b) the Free Exercise clause.
The State cannot pass a law which aid nor discriminate a religion;
33
37
20
b.)
c.)
d.)
If any of these questions are answered in the negative, then the law becomes
unconstitutional as it violates the Establishment Clause
exercise of religion. Albeit, like the press, religious groups may still be subject to general
taxes depending upon the circumstances.
The obligation of a contract is impaired when its terms or conditions are changed
by law or by a party without the consent of the other, thereby weakening the
The Free Exercise clause, on the other hand, withdraws from the legislative power,
state and federal, the extortion of any restraint on the free exercise of religion. It bars
governmental regulation of religious beliefs as such, prohibiting the misuse of secular
governmental programs to impede the observance of one or all religions even though the
42
burden may be characterized as being only indirect.
A later statute may revoke exemption from taxation provided for in a franchise
Generally, religious groups, sects, and like organizations are exempt from paying
taxes like Income tax, license fees, and similar taxes as it imposes a burden on the free
alteration or repeal.
39
RULES:
a.
When the exemption is bilaterally agreed upon between the government and the
taxpayer it cannot be withdrawn without violating the non-impairment clause.
21
b.
When it is unilaterally granted by law, and the same is withdrawn by virtue of another
law no violation.
When the exemption is granted under a franchise it may be withdrawn at any time
thus, not a violation of the non-impairment of contracts
c.
Note: A latter statute may revoke exemption from taxation provided for in a franchise
because the Constitution provides that a franchise is subject to amendment, alteration or
repeal. [Sec. 11 Art. XII]
Case Reference
OPOSA vs. FACTORAN
As a rule, the obligation to pay tax is based on law. But when, for
instance, a taxpayer enters into a compromise with the BIR, the
obligation of the taxpayer becomes one based on contract.
A lawful tax on a new subject or an increased tax on an old one, does not interfere
The constitutional guarantee of the non-impairment clause can only invoked in the
an increase of the public debt, bills of local application, and private bills shall originate
exclusively in the House of Representatives, but the Senate may propose or concur with
1.
2.
3.
If the exemption was granted for valuable consideration and it is granted on the
basis of a contract.
cannot be revoked
If the exemption is granted by virtue of a contract, wherein the government enters
into a contract with a private corporation
cannot be revoked unilaterally by the government
If the basis of the tax exemption is a franchise granted by Congress and under the
franchise or the tax exemption is given to a particular holder or person
can be unilaterally revoked by the government (Congress)
The non-impairment clause applies only to contracts and not to a
franchise.
The non-impairment clause applies to taxation but not to police power
and eminent domain.
Furthermore, it applies only where one party is the government and the
other, a private individual.
amendments.
Case References
Tolentino v. Secretary of Finance
The Constitution simply means that the initiative for the filing of bills must come
from the House of Representatives, on the theory that, elected as they are from
the districts, the members of the House can be expected to be more sensitive to
the local needs and problems.
It is not the law but the revenue bill which is required by the Constitution to
originate exclusively in the House of Representatives, because a bill originating in
the House may undergo such extensive changes in the Senate that the result may
be a rewriting of the whole, and a distinct bill may be produced.
22
The Constitution does not also prohibit the filing in the Senate of a substitute bill in
anticipation of its receipt of the bill from the House, as long as action by the Senate
is withheld until receipt of said bill. [Tolentino v. Secretary of Finance]
whether from business, exercise of profession or from property which in no case shall exceed
Five thousand pesos (P5,000.00).
In the case of husband and wife, the additional tax herein imposed shall be based upon the
total property owned by them and the total gross receipts or earnings derived by them.
Presidential power to grant reprieves, commutations and pardons and remit fines and
forfeitures after conviction (ART. VII, SEC. 19, 1987 CONSTITUTION)
Due Process
Equal Protection
Uniformity
Taxpayer may not be Taxpayers shall be treated alike Taxable articles, or kinds of
deprived of life, liberty under like circumstances and property of the same class,
or property without conditions
both
in
the shall be taxed at the same
due process of law. privileges
conferred
and rate.
There
should
Notice
must, liabilities imposed.
therefore, be no direct
therefore, be given in
double taxation
case of failure to pay
taxes
PROHIBITION AGAINST IMPRISONMENT FOR NON-PAYMENT OF POLL TAX
Section 20, Article III, Constitution. No person shall be imprisoned for debt or non-payment
of poll tax.
The non-imprisonment rule applies to non-payment of poll tax which is punishable only by a
surcharge, but not to other violations like falsification of community tax certificate and nonpayment of other taxes.
Community Tax v. Poll Tax
Poll tax is a tax of fixed amount imposed on residents within a specific territory
Section 158. Juridical Persons Liable to Community Tax. - Every corporation no matter how
created or organized, whether domestic or resident foreign, engaged in or doing business in
the Philippines shall pay an annual community tax of Five hundred pesos (P500.00) and an
annual additional tax, which, in no case, shall exceed Ten thousand pesos (P10,000.00) in
accordance with the following schedule:
(1) For every Five thousand pesos (P5,000.00) worth of real property in the Philippines
owned by it during the preceding year based on the valuation used for the payment of real
property tax under existing laws, found in the assessment rolls of the city or municipality
where the real property is situated - Two pesos (P2.00); and
(2) For every Five thousand pesos (P5,000.00) of gross receipts or earnings derived by it from
its business in the Philippines during the preceding year - Two pesos (P2.00).
The dividends received by a corporation from another corporation however shall, for the
purpose of the additional tax, be considered as part of the gross receipts or earnings of said
corporation.
Section 159. Exemptions. - The following are exempt from the community tax:
(1) Diplomatic and consular representatives; and
(2) Transient visitors when their stay in the Philippines does not exceed three (3) months.
Section 157. Individuals Liable to Community Tax. - (18) or over who has been regularly
employed on a wage or salary basis for at least thirty (30) consecutive working days, or who
is engaged in business or occupation, or who owns real property with an aggregate assessed
value of One thousand pesos (P1,000.00) or more, or who is required by law to file an income
tax return shall pay an annual additional tax of Five pesos (P5.00) and an annual additional
tax of One peso (P1.00) for every One thousand pesos (P1,000.00) of income regardless of
Section 160. Place of Payment. - The community tax shall be paid in the place of residence of
the individual, or in the place where the principal office of the juridical entity is located.
164 (c) The proceeds of the community tax actually and directly collected by the city or
municipal treasurer shall accrue entirely to the general fund of the city or municipality
concerned. However, proceeds of the community tax collected through the barangay
treasurers shall be apportioned as follows:
(1) (50%) shall accrue to the general fund of the city or municipality concerned; and
23
(2) (50%) shall accrue to the barangay where the tax is collected.
Equity and uniformity in taxation means that all the taxable articles or kinds of
properties of the same class be taxed at the same rate. The taxing power has the
The rule of taxation shall be uniform and equitable (Sec.28 (1), Art. III, 1987
Constitution).
The tax is uniform when it operates with the same force and effect in every
place where the subject of it is found. "Uniformity" means all property
belonging to the same class shall be taxed alike. It does not signify an intrinsic,
but simply a geographic, uniformity (Churchill & Tait vs. Conception, 34 Phil.
969). Uniformity does not require the same treatment; it simply requires
reasonable basis for classification.
The concept of equality in taxation requires that the apportionment of the tax
burden be more or less just in the light of the taxpayers ability to shoulder the
tax burden and if warranted, on the basis of the benefits received from the
government. Its cornerstone is the taxpayers ability to pay.
taxation & it has been repeatedly held that the inequalities which result from a
singling out of 1 particular class for taxation or exception infringe no constitutional
limitation.
Manila Race Horse v. Dela Fuente No arbitrary classification
it was said there is equality and uniformity in taxation if all articles or kinds of
property of the same class are taxed at the same rate.
The owners of boarding stables for race horses and, for that matter, the race horse
owners themselves, who in the scheme of shifting may carry the taxation burden,
are a class by themselves and appropriately taxed where owners of other kinds of
horses are taxed less or not at all, considering that equity in taxation is generally
conceived in terms of ability to pay in relation to the benefits received by the
taxpayer and by the public from the business or property taxed.
Taking everything into account, the differentiation against which the plaintiffs
complain conforms to the practical dictates of justice and equity and is not
discriminatory within the meaning of the Constitution.
Equity in taxation is generally conceived in terms of liability to pay in relation to the
benefits received by the taxpayer and by the public from the business or property
taxed.
The concept of uniformity in taxation implies that all taxable articles or properties
of the same class shall be taxed at the same rate. It requires the uniform
application and operation, without discrimination, of the tax in every place where
It is inherent in the power to tax that the state be free to select the subjects of
the subject of the tax is found. It does not, however, require absolute identity or
equality under all circumstances, but subject to reasonable classification.
there is equality and uniformity in taxation if all articles or kinds of property of the
same class are taxed at the same rate. Thus, it was held in that case, that "the fact
that some places of amusement are not taxed while others, such cinematographs,
theaters, vaudeville companies, theatrical shows, and boxing exhibitions and other
kinds of amusements or places of amusement are taxed, is not argument at all
against the equality and uniformity of tax imposition."
Case References
24
The taxing power has the authority to make reasonable and natural classifications
for purposes of taxation.
Uniformity all taxable articles or kinds of property of the same class are taxed at the
same rate.
PEPSI-COLA
BOTTLING
CO.
OF
THE
PHILS.,
INC.
vs.
CITY
OF
BUTUAN
FACTS: The ordinance imposes taxes for every case of soft drinks, liquors and other
carbonated beverages, regardless of the volume of sales, shipped to the agents and/or
consignees by outside dealers or any person or company having its actual business outside
the City.
Equitability the burden falls to those who are more capable to pay.
Progressivity rate increases as the tax base increases.
ISSUE: Does the tax ordinance violate the uniformity requirement of taxation?
HELD: Yes. The tax levied is discriminatory.
Even if the burden in question were regarded as a tax on the sale of said beverages,
it would still be invalid, as discriminatory, and hence, violative of the uniformity
required by the Constitution and the law therefor, since only sales by "agents or
consignees" of outside dealers would be subject to the tax. Sales by local dealers,
not acting for or on behalf of other merchants, regardless of the volume of their
sales, and even if the same exceeded those made by said agents or consignees of
producers or merchants established outside the City of Butuan, would be exempt
from the disputed tax.
It is true that the uniformity essential to the valid exercise of the power of taxation
does not require identity or equality under all circumstances, or negate the
authority to classify the objects of taxation.
The classification made in the exercise of this authority, to be valid, must, however,
be reasonable and this requirement is not deemed satisfied unless:
o
(3) the classification applies, not only to present conditions, but, also, to
future conditions substantially identical to those of the present; and
(4) the classification applies equally to all those who belong to the same
class.
lly, Directly and Exclusively Used for Religious, Charitable and Educational Purposes
Article VI. Section 28 (3) of the Constitution provides:
Charitable institutions, churches and personages or convents appurtenant
thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements,
actually, directly, and exclusively used for religious, charitable, or educational purposes
shall be exempt from taxation.
a.) Actually, Directly and Exclusively
The phrase is construed as the direct and immediate and actual
application of the property itself to the purposes for which the charitable
institution is organized. It is not the use of the income from the real property that
is determinative of whether the property is used for tax-exempt purposes.
25
The test of exemption is the ACTUAL and EXCLUSIVE use of the property.
Exclusive is defined as possessed and enjoyed to the exclusion of others; debarred
from participation or enjoyment; and exclusively is defined, "in a manner to
exclude; as enjoying a privilege exclusively. Thus, if real property is used for one or
more commercial purposes, it is not exclusively used for the exempted purposes
but is subject to taxation. Quoting the Supreme Court in Abra Valley College case,
the lease of a portion of school to a commercial establishment is subject to tax.
b.) The Extension Rule
Prior to the 1973 and 1987 Constitution, the term exclusively used
considers incidental use also and that the exemption in favor of property used
exclusively for charitable or educational purposes is not limited to property actually
indispensable therefor, but also extends to facilities which are incidental to and
reasonably necessary for the accomplishment of such purposes. Case in point:
Roman Catholic Bishop of Nueva Segovia v. Provincial Board of Ilocos Norte
NOTE: The income of whatever kind and nature from any of their properties, real or personal
or from any of their activities for profit regardless of the disposition made of such income
shall be subject to tax.
Thus, being a non-stock and non-profit corporation does not by itself completely
exempt an institution from tax. An institution cannot use its corporate form to prevent its
profitable activities from being taxed.
In cases of gifts or donations:
Donations in favor of religious and charitable institutions are generally not subject
to tax provided, however, that not more than 30% of the said bequest, devise, or legacy or
transfer shall be used for administration purposes.
d.) Non-Violation of the Establishment Clause
Walz vs Tax Commission of City of New York
The exemption in favor of the convent in the payment of the land tax,
include not only the land actually occupied by the church, but also the adjacent ground
(which is being used for a vegetable garden) destined to the ordinary incidental uses of
man, comes under the exemption. Moreover, in regard to the lot which formerly was the
cemetery, while it is no longer used as such, neither is it used for commercial purposes and,
is now being used as a lodging house by the people who participate in religious festivities,
which constitutes an incidental use in religious functions, also comes within the exemption.
The grant of tax exemption is not sponsorship of the organizations because the
government does not transfer part of its revenue to churches but simply abstains from
demanding that the churches support the State. Instead, the tax exemption creates a more
minimal and remote involvement between church and state, far less than taxation of
churches would entail, and it restricts the fiscal relationship between them, thus tending to
complement and reinforce the desired separation insulating each from the other.
NOTE: The prevailing rule now is that the term exclusively does not cover incidental use.
What is meant by actual, direct and exclusive use of the property for charitable purposes is
the direct and immediate and actual application of the property itself to the purposes for
which the charitable institution is organized.
26
The school system is synonymous with formal education, which refers to the
hierarchically structured and chronological graded learnings organized and provided by the
formal school system and for which certification is required in order for the learner to
progress through the grades or move to the higher levels.
NOTE: Incomes which are unrelated to school operations are taxable.
b.) Requirements and Coverage of the Exemption
The educational institution must prove the ff:
27
In order to be exempted from income tax, Sec. 30 (B) of the NIRC requires that
both the organization and operations of the charitable institution must be devoted
"exclusively" for charitable purposes. This is qualified by its last paragraph, which states that
if a tax exempt charitable institution conducts "any" activity for profit, such activity is not tax
exempt even as its not-for-profit activities remain tax exempt. Thus, even if the charitable
institution must be "organized and operated exclusively" for charitable purposes, it is
nevertheless allowed to engage in "activities conducted for profit" without losing its tax
exempt status for its not-for-profit activities.
St. Luke's had total revenues of P1,730,367,965 from services to paying patients. It
cannot be disputed that a hospital which receives approximately P1.73 billion from paying
patients is not an institution "operated exclusively" for charitable purposes. Clearly,
revenues from paying patients are income received from "activities conducted for profit."
St. Luke's claims that its charity expenditure of P218,187,498 is 65.20% of its operating
income in 1998. However, if a part of the remaining 34.80% of the operating income is
reinvested in property, equipment or facilities used for services to paying and non-paying
patients, then it cannot be said that the income is "devoted or used altogether to the
charitable object which it is intended to achieve." The income is plowed back to the
corporation not entirely for charitable purposes, but for profit as well.
Government Educational Institutions
Government educational institutions, like the University of the
Philippines, are likewise exempted from taxes with respect to revenues derived
pursuant to its educational purpose and revenues actually, directly and
exclusively used therefor. Conversely, income from trade, business or other
activity which is not related to their educational purposes or functions shall be
subject to internal revenue taxes when the same is not actually, directly,
exclusively used for the intended purpose/s.
Transmissions to Educational Institutions
NOTE: These jurisdictions are concurrent with the Regional Trial Courts; thus, the petition
should generally be filed with the RTC following the hierarchy of courts. However, questions
on tax laws are usually filed direct with the Supreme Court as these are imporessed with
paramount public interest. It is also provided under Sec. 30, Art VI of the Constitution that
no law shall be passed increasing the appellate jurisdiction of the Supreme Court without its
advice and concurrence.
The transmission from the first heir, legatee or donee in favor of another
beneficiary, in accordance with the desire of the predecessor; and
This is based on the theory that, elected as they are from the districts,
the members of the House of Representatives can be expected to be more
sensitive to the local needs and problems.
NOTE: It is not the law but the revenue bill which must originate exclusively in the House of
Representatives. The bill may undergo such extensive changes that the result may be a
28
rewriting of the whole. The Senate may not only concur with amendments but also propose
amendments.
it is a grant of immunity,
express or implied,
in whole or in part
o
As to Source:
1. Constitutional
2. Statutory
3. Treaty/Executive Agreements
4. Contractual (for a consideration)
As to Manner of Grant:
1. Express
o Verbally/oral
o In writing/ statutes
2. Implied
o Manifested by conduct
o Considering the totality of circumstances
As to Scope
1. Total/full/All-in/All the way
o Relates to the whole/entire tax
st
2. Partial/1 -base lang
o Affects only a portion
29
Tax Exemption
Exclusion
the
non-inclusion
in
the
taxpayers taxable gross income
of gifts, bequest, and devises
under Sec 32 (B)(3) of the NIRC
o
Exemption
Deduction
Exemption of individuals
- certain classes of individual may be granted tax exemption within the
tax system which depends on multiple criteria.
Exemptions of Organizations
2.
30
3.
4.
Exemptions of Income
Includes:
Exemption of Property
Reciprocal Exemptions
o Some tax jurisdictions allow tax exemptions Subject to Reciprocity
o States may enter into a bilateral agreement which provides for certain tax
exemptions this stipulation is common in:
tax treaties
It is NOT PRESUMED.
Burden of Proof:
2.
3.
It is a PERSONAL Privilege:
4.
31
5.
6.
7.
The exemptions of SE proceeds from the law, and not the other
way around. The tail does not wag the dog. (John Hay vs. Lim
(2005))
8.
9.
Duh
II.
III.
32
Examples:
If the buyer is not so smart and he pays taxes despite the fact
that the transaction is exempt
33
REFUNDS
1. Definition
And to give tax evaders and other fuckers, who wish to relent
and are willing to reform, a chance to do so, to become part of
the new society with a clean slate. (CIR vs. Botelho corp)
3 General Characteristics of a Typical Amnesty
I.
Short lived (2-3 months)
II.
Voluntary (participation is up to them)
III.
Waiver of fines and penalties but not the principal amount of taxes
that are due.(unless if the amnesty law provides otherwise)
3.
But also by bringing them old bitch fucks into the tax
system for the long run.
4.
Strictissimi juris
5.
Basis: lifeblood
NATURE:CONSTRUCTION; EVIDENCE
The person on whom the tax is imposed by law, and who paid
the same even if he shifts the burden to another.
2. The person who shoulders the burden (indirect tax = part of the purchase
price) has no cause of action against the taxing authority.
TAX AMNESTY
1. Definition
34
6.
Republic vs IAC(1991)
HELD:
o Even assuming that the deficiency tax
assessment were correct, since the latter
have already paid almost the equivalent
amount to the government by way to
amnesty taxes under PD#213, and were
granted not merely an exemption BUT
AN AMNESTY for the past tax failings, the
Gov. is not ESTOPPED from collecting the
difference.
7.
8.
3.
4.
5.
6.
7.
8.
9.
Tax Capitalization
Transfer Pricing
Resort to tax Haven
Tax Deferral
Tax Shelter
Tax Avoidance
Tax Dodging/Evasion
;
Tax Shifting:
o It is the transfer of the burden of tax by the original payer (impact) to
another (incidence)
Kinds of shifting
i.
Forward s. when the burden is transferred from a factor of
production thru the factors of distribution until it finally settles
on the ultimate purchaser/consumer. (example : seller increase
price of beer)
ii.
Backward s. when the burden is transferred from the
consumer thru the factors of distribution to the factors of
production (example: seller doesnt increase the price of beer
but reduces the price in materials)
iii.
Onward s. when the tax is shifted 2 or more times either
forward or backward.
Tax Capitalization/amortization
- Circumstance where the purchaser of a taxable object, by
cutting down the purchase price, discounts all the taxes which
he may be called to pay upon in the future.
- By depreciating the capital value to a sum equal to the
capitalized value of the tax (1/5 = 20%)
Tax Transformation
35
Liechtenstein
Panama
Bahamas
Transfer Mispricing
o Happens when transfer pricing is ABUSED.
- Unitary Taxation
o Related to Transfer Pricing
o The income of all related parts of the company are combined
and the profits are shared between different countries where
Tax Deferral
o Paying taxes in the future for income earned in the current year
o Some bitches leave their profits offshore untaxed they dont have to
pay shit unless they repatriate said income to their home base
Tax Shelter
o It is a sexy device used by a taxpayer to reduce or defer payment of
taxes; or any financial investment made in order to acquire expenses,
depreciation allowances, etc, or to defer income so as to reduce ones
income tax.
o It includes investment or deposits in accounts that are not heavily taxed
and shit (example long term deposits); and investing in real estate to avail
deductions such as mortgage loan interest, mortgage insurance and
property taxes.
Tax Avoidance and Evasion
o This 2 sons of bitches are the 2 most common ways used by your average
motherfucker in escaping taxation (CIR vs Estate of Benigno Toda)
36
o
o
TO AVOID IS LEGAL
TO EVADE IS ILLEGAL
o
Tax Avoidance/Loophole
o A tax saving device within the means sanctioned by law
o Should be used in good faith and at arms length.
o
To get around/avoid the spirit of the law and the will of the legislature,
WITHOUT ACTUALLY BREAKING THE FUCKING LAW
o It is the lessening of tax liabilities thru maximizations of deductions
exclusion and exemptions and the minimization of income by legal
means.
Criminal activity
It
must
be
proven
by
circumstantial evidence and
reasonable inference
Negligence is not equivalent to fraud(whether slight or gross)
In CIR vs CA:
37
o
o
Badges of Fraud
5. Improper deductions
6. Accounting irregularities
7. Inconsistent explanation/behavior
8. Attempt to conceal illegal acts
9. Inadequate records
10. Failure to file returns
11. Destruction of records (acts)
Honest difference in opinion and inadvertence do not amount to fraud
There must be a clear and convincing evidence to prove that
some part of the underpayment of a tax was due to fraud.
Intent is different from mere inadvertence, honest difference
in opinion, reliance on an incorrect technical advice, negligence
or carelessness, dumbfuckery.
Tax credit
Tax Credit vs Tax Deduction
o Tax Credit
Examples
Examples
38
1.
2.
3.
4.
Discount
Double Taxation
Double Taxation
o Definition
General Rule:
o Double taxation should not be permitted
unless the legislature has authority to
impose it.
However
o Since the taxing power is exclusively a
legislative function, and since it is absolute
and unlimited: it is generally held that there
is nothing to prevent the imposition of
more than one tax on the same subject
matter, in the absence of an express or
implied constitutional prohibition xxx such
shit is a matter within the discretion of the
legislature.
39
1 method
2 method
o The STATE OF SOURCE is given a full or
limited right to tax together with the STATE
OF RESIDENCE
1.
2.
EXEMPTION METHOD
a. The income which is taxable in the state of
source is exempted in the state of residence
b. This may be done by using tax deduction
methods which allows foreign income to
be deducted from the gross income :in
effect exempting the payment from being
further taxed.
c. The focus is on the income or capital
Credit Method
a. Although the income is taxed in both the
State of Source and the State of Residence
the tax paid in the state of source is
credited against the tax levied in the state
of residence.
b. The focus is on the tax
Limitations on Credit
40
Chapter 5
Tax Laws and Regulations
Tax Law it is a body of rules under which the public authority has a claim on taxpayers
requiring them to transfer to the authority party of their income or their property
Material Tax Law it is the analysis of the legal provisions giving rise to the
charging of tax
2.
Formal Tax Law it concerns the rules laid down in the law as to assessment,
enforcement, procedure, coercive measures, administrative and judicial appeal,
and other matters.
Mandatory which means that the security of the citizens or which are
designed to ensure equality of taxation or certainty as to the nature and
amount of each persons tax.
o
b.
c.
Not Political in Nature - deemed to be the laws of the occupied territory and not of
the occupying enemy.
41
d.
Not Penal a statute is penal when it imposes punishment for the offense
committed against the state which is under the constitution. It is not a penal law
cases
Its main purpose is to cover the rules, policies and laws that oversee
the revenue-raising process.
Ex post facto law is one which alters the legal rules of evidence and
authorizes conviction upon less or different testimony than the law
This is due to the difference in the quantum of proof in civil and criminal
National Taxes it comes from the National Internal Revenue Taxes and Tariff
imposed and collected by the national government through the agencies
The Constitution the 1987 Philippine Constitution sets the restrictions on the
However, the nature of the tax and the circumstances in which it is laid
III.
It is applied prospectively
2.
Customs Code.
IV.
Laws The National Internal Revenue Law; Local Tax Law; and Tariff and
3.
Case Law these are the decisions of the Supreme Court which form part of
the law of the land.
42
4.
law
2.
regulations for the effective enforcement of the provisions of the National Internal
are issuances that provide directives or instructions; prescribe guidelines; and outline
Finance under Section 244 of the 1997 National Internal Revenue Code
implementation of stated policies, goals, objectives, plans and programs of the Bureau
are rulings, opinions and interpretations of the Commissioner of Internal Revenue with
respect to the provisions of the Tax Code and other tax laws, as applied to a specific set
of facts, with or without established precedents, and which the Commissioner may issue
from time to time for the purpose of providing taxpayers guidance on the tax
consequences in specific situations. BIR Rulings, therefore, cannot contravene duly
issued RMRs; otherwise, the Rulings are null and void ab initio
43
6.
American jurisprudence has persuasive effect on the interpretation of our own tax laws.
7.
are issuances that publish pertinent and applicable portions, as well as amplifications, of
laws, rules, regulations and precedents issued by the BIR and other agencies/offices.
government agency that has acquired specialisation on the subject is entitled to great
respect and should be accorded great weight by the courts.
Revenue Bulletins (RB)
8.
the errors or mistakes of its agents in the interpretation or execution of tax laws.
Internal Revenue that consolidate the Bureau of Internal Revenue's position on certain
specific issues of law or administration in relation to the provisions of the Tax Code,
relevant tax laws and other issuances for the guidance of the public.
Estoppel, generally, does not apply to the government. The state cannot be bound by
9.
BIR Rulings
are official positions of the Bureau to queries raised by taxpayers and other
stakeholders relative to clarification and interpretation of tax laws.
2.
The imposition of tax, in case of doubt, is construed strictly against the government and
11. Administrative regulations, issued for the proper implementation and in accordance
with tax laws shall have the same force and effect as the law itself. The sheer
impossibility and impracticality of Congress having to fill-in every minute detail in the
statute makes it necessary for administrative agencies to acquire the power to issue
subordinate legislations. To be valid however, the following requisites are imperative:
Tax laws shall not be interpreted to extend their provisions by implication beyond the
clear import of the language used or to enlarge their scope not particularly specified.
4.
In case of conflict, Special Tax laws shall prevail over General Tax statutes.
5.
Ubi Lex non distinguit neck now distinguire debemos (When the law does not
distinguish neither should we.)
44
Rationale: Essentially statutes also, hence, Rationale: Merely provide internal guidelines
hearing and notice requirements apply
for more effective admin implementation
Must be reasonable
Note: If Congress subsequently re-enacts a tax law using the meaning given to it by the
administrative agency, the re-enactment effectively confirms that the administrative
interpretation was correct.
The Power of Oversight
DEFINITION: All activities undertaken by Congress to enhance its understanding of and
influence over the implementation of legislation it has enacted. In other words, these are
Legislative Rules
Interpretative Rules
CATEGORIES:
Scrutiny
Have the force and effect of law Courts
must decide in accordance with these
rules, even if they do not agree with the
underlying policy
Are
coupled
noncompliance
with
sanctions
Congressional
Legislative Supervision
Investigation
Passive oversight
Active oversight
Active oversight
45
The SC has ruled that oversight is not in itself unconstitutional, and may in fact enhance
Reports and information
periodically required from
agencies. Uses facts that
are readily available.
More
thorough
solicitation
of
information from the
agencies concerned
Continuing
and
informed
awareness.
Implies
constant
legislative guidance, e.g., through
a legislative committee especially
assigned to an area of admin
activity.
separation of powers because it prevents too much authority from lodging in the executive
department. I.e., integral to checks and balances.
But it qualified this holding to scrutiny and investigation only; in particular, (a) scrutiny over
appropriations, budget, confirmation, and (b) investigation in aid of legislation as provided in
Art. VI. Any action or step beyond that will undermine the separation of powers guaranteed
by the Constitution. Legislative vetoes fall in this class.
Legislative Veto
For determining efficiency Exercise
of Examination of administrative
of
administrative Constitutional authority exercise of legislative power, plus
implementation
to conduct inquiry in aid curtailment if necessary
of legislation (Art. VI Sec.
21)
This is a form of legislative supervision exercised through veto provisions included in enacted
laws. Through veto provisions, Congress gives itself authority to approve or disapprove the
implementing rules and regulations promulgated by the executive before they take effect.
Inquires
into
past Inquires
into
past Examination of current activity,
administrative activities to administrative activities i.e.,
exercise
of
legislative
influence future acts
to influence future acts
authority
Arguments For
CONSTITUTIONALITY
Arguments Against
It has been argued that oversight violates separation of powers because implementation
(i.e., post-legislation) is already within the domain of the executive department.
46
Allows
Congress
to
determine w/n the rules
conform to law
Problem
often
arises
because
implementing agency did not participate
in the crafting of the law, i.e., usually
ignorant of the policy sought to be
enforced
47
[NI-NA-LT]
Sources of Revenue (sec. 287, NIRC)
1. Local sources
tax revenues from real property tax and business tax
non tax revenues from fees and charges
receipts from government business operations
proceeds from sale of assets
2. External sources
Internal Revenue Allotment (IRA)
Special laws
Grants
Aids and borrowings
Equitable
Income tax, except when levied on banks and other financial institutions
Documentary stamp tax
Taxes on estates, inheritance, gifts, legacies, and other acquisitions mortis causa
[AGILE]
Customs duties, registrations fees of vessels, and wharfage on wharves, tonnage
dues, all other kinds of customs fees
Goods carried into or out of, or passing through territorial jurisdictions of LGUs
Agricultural and aquatic products
7.
8.
9.
10.
11.
12.
13.
14.
15.
Business enterprises certified to by the Board of Investments as pioneer or nonpioneer for a period of six (6) and four (4) years, respectively from the date of
registration;
Excise taxes on articles enumerated under the National Internal Revenue Code, as
amended, and taxes, fees or charges on petroleum products;
Percentage or value-added tax (VAT) on sales, barters or exchanges or similar
transactions on goods or services except as otherwise provided in the LGC;
Taxes on the gross receipts of transportation contractors and persons engaged in
the transportation of passengers or freight by hire and common carriers by air, land
or water, except as provided in the LGC;
Taxes on premiums paid by way of reinsurance or retrocession;
Taxes, fees or charges for the registration of motor vehicles and for the issuance of
all kinds of licenses or permits for the driving thereof, except tricycles;
Taxes, fees, or other charges on Philippine products actually exported, except as
otherwise provided;
Taxes, fees, or charges, on Countryside and Barangay Business Enterprises and
cooperatives duly registered under Republic Act No. 6810 "Magna Carta for
Countryside and Barangay Business Enterprises (Kalakalan 20)" and Republic Act
Numbered Sixty-nine hundred thirty-eight (R.A. No. 6938) "Cooperatives Code of
the Philippines"
Taxes, fees or charges of any kind on the National Government, its agencies and
instrumentalities, and local government units.
[VP-PRECIPITANCES]
Income Tax
tax on a person's income, emoluments, profits arising from property, practice of
profession, conduct of trade or business
LGU cannot impose tax on income, except in case of banks and other financial
institutions
gross receipts
from interest, commissions and discounts from lending activities, income from
financial leasing, dividends, rentals on property, profit from exchange or sale of
property, insurance premium
Interest and Dividend Incomes
any tax imposed on interest or dividends received by non-bank and non-financial
institutions assume the nature of income tax
banks and other financial institutions derive such gross receipts in the ordinary
course of their business as financial institutions
48
for non-bank and non-financial institutions, interest and dividend incomes are
merely passive investment income
nature of ordinary business income
tax imposed thereon the nature of ordinary business tax
Wharfage
a fee assessed against the cargo of a vessel engaged in foreign or domestic trade
based on quantity, weight, or measure received and/or discharged by vessel
wharfage fee is prohibited only on wharves constructed and maintained by the
national government not on those owned and operated by the LGU
Sections 153 and 155 of the LGC, LGUs, through their Sanggunian
imposition of toll fees or charges for the use of any public roads, pier, or wharf
funded and constructed by them
Goods Carried Into, Out of, or Passing Through
on goods or merchandise
also because it is an impediment or restraint against free flow of trade and
commerce within the territory of the LGU, adjacent and adjoining LGUs and the
country as a whole
No Unjust Enrichment on the Part of the Users
those benefits resulted from the infrastructure that the LGU is mandated by law to
provide
no unjust enrichment where the one receiving the benefit has a legal right or
entitlement
when there is no causal relation between one's enrichment and the other's
impoverishment
Agricultural and Aquatic Products
whether in their original form or not
imposition of the tax will definitely restrict the free flow because the price will have
to increase
Marginal Farmer as Fisherman
individual engaged in subsistence farming or fishing limited to the sale, barter or
exchange of agricultural or marine products produced by himself and his
immediate family, and whose annual net income does not exceed Fifty Thousand
Pesos or the poverty line established by NEDA
BOI-Certified Enterprises
incentives to Registered Enterprises
six (6) years from commercial operation for pioneer firms and four (4) years for
non-pioneer firms, new registered firms shall be fully exempt from income taxes
levied by the National Government
No Retroactivity
only upon the effectivity of LGC which was on January 1, 1992
49
Transportation Contractors
LGUs may tax transportation contractors and common carriers on a basis other
than gross receipts
exception is the business tax on contractors and other independent contractors,
which is a fixed graduated tax based on gross receipts
Common Carrier
legislative intent is to prevent a duplication of the so-called "common carrier's tax"
common carrier is already paying 3% common carrier's tax on its gross
sales/earning under the Tax
Tax on Premiums
Reinsurance is a contract by which an insurer procures a third person to ensure him
against loss or liability by reason of original insurance
retrocession is the practice of one reinsurance company essentially insuring
another reinsurance company by accepting business that the other company had
agreed to underwrite
tax on insurance premiums is not included in the prohibition
only receipts of insurance premiums may be taxed by the LGU
Motor Vehicle Registration
except tricycles
a motor vehicle is any vehicle propelled by any power other than muscular power
using the public roads excluding road rollers, trolley cars, street-sweepers,
sprinklers, lawn mowers, bulldozers, graders, forklifts, amphibian trucks, and
cranes if not used on public roads, vehicles which run only on rails or tracks,
tractors, trailers, and traction engines of all kinds used exclusively for agricultural
purposes
Power over Tricycles
under Section 458[a][3][VI], the power to regulate their operation and to grant
franchises for the operation thereof
must not have had the effect of withdrawing the express power of LTO to cause the
registration of all motor vehicles and the issuance of licenses for the driving thereof
Registration and Licenses not Included
delegated powers to LGUs pertain to the franchising and regulatory powers
exercised by the Land Transportation Franchising and Regulatory Board ("LTFRB")
and not registration of motor vehicles and issuance of licenses for the driving
thereof
motor vehicles "used or operated on or upon any public highway"
50
Export Products
Philippine products actually exported
foreign products are not covered by the limitation
prohibition pertains to the exported products, while business tax, to the business
exporting itself
Countryside and Barangay Business Enterprises and Cooperatives
"countryside and barangay business enterprises" means any registered business
entity, association or cooperative whose:
o Number of employees does not exceed twenty (20) at any time for the
purpose of undertaking a productive business enterprise recommended
by the Department of Trade and Industry (DTI) provincial office that will
help develop the economy in its area.
51
Burden of Proof
lack of a public hearing is a negative allegation essential to the taxpayer's cause of
action
taxpayer is the party asserting has the burden of proof
general rule regularity of the enactment of an officially promulgated statute or
ordinance may not be impeached by parol evidence or oral testimony
presumption in favor of the regularity of official conduct absent a clear showing to
the contrary
Approval of Ordinance
ordinance enacted by the sangguniang panlalawigan, sangguaniang panlungsod,
sangguniang bayan presented to the provincial governor or city or municipal
mayor
ordinances enacted by the sangguaniang barangay signed by the punong barangay
affix his signature on each and every page
veto it and return the same with his objections
sangguanian concerned may override the veto of the local chief executive by twothirds (2/3) vote of all its members, making the ordinance or resolution effective
for all legal intents and purposes
veto shall be communicated by the local chief executive concerned to the
sanggunian within fifteen (15) days in the case of a province, ten (10) days in the
case of a city or a municipality; otherwise, the ordinance shall be deemed approved
as if he had signed it
Publication and Dissemination
published and disseminated
within ten (10) days after their approval, certified true copies of all provincial, city,
municipal tax ordinances or published in full for three (3) consecutive days in a
newspaper of local circulation
at least two (2) conspicuous and publicly accessible places
barangay tax ordinances furnished the respective local treasurers for public
dissemination
if the tax ordinance or revenue measure contains penal provisions, the gist of such
tax ordinance or revenue measure published in a newspaper of general circulation
within the province where the sanggunian concerned belongs
shall be considered as falling at the beginning of the next ensuing quarter the taxes,
fees, or charges, due to accrue therefrom
Purpose of Publication
52
Review of Ordinance. The Secretary of justice reviews the validity of the tax ordinance or
revenue measure.
On appeal, the constotutionality or legality of tax ordinances or revenue maesures may be
raised within 30 days form the effectivity thereof to the Secretary of justice who shal render
a decision within 60 days from the date of receipt of the appeal.
NOTE: The appeal has no effect of suspending the effectivity of the ordinance and the accrul
of the payment of the tax, fee or charge levied therein.
If the Secretary of Justice did not act on the appeal or after the lapse of 60 days, the
aggrieved party may file an appropriate proceedings with a court of competent jurisdiction.
Power of Supervision. The review power of the Secretary of Justice of tax measures enacted
by the local government unit to determine if the officials performed their function in
accordance with law, the same is an act of mere supervision, not control.
Power of RTC Judge. An RTC judge has the authority to pass upon the validity of a city tax
ordinance even after its validity had been contested by the Secretary of Justice and a
decision rendered thereon by said official.
Applicable case: San Miguel Corporation v. Avelino, GR No. L-39699, March 14, 1979
Facts: A city demanded from a taxpayer the payment a specific tax, but the latter contested
that the ordinance was illegal or void. The taxpayer went to the Secretary of Justice who
rendered the opinion that it is of doubtful validity. However, a suit for collection was filed by
the city where it squarely put in issue the validity of such ordinance, thus contesting the
opinion of the Secretary of Justice. The taxpayer moved to dismiss the case on the ground of
lack of jurisdiction. The Supreme Court held the issue on this manner.
Mandatory Periods
Under the LGC, a dissatisfied taxpayer who questions the validity or legality of a tax
ordinance must file his appeal to the Secretary of Justice within 30 days from effectivity
thereof. In case the Secretary decides the appeal, a period also of 30 days is allowed for the
aggrieved party to go to court. But if the Secretary does not act thereon after the lapse of 60
days, a party could already proceed to court to seek relief.
A decision is rendered--- 30 days to appeal to the Secretary of Justice.
Another 30 days to go to court after the appeal is decided upon by the Secretary.
In case of inaction of the Secretary or after the lapse of 60 days, the aggrieved party may go
directly to the court to seek relief.
NOTE: These three separate periods are clearly given for compliance as a prerequisite before
seeking redress in a competent court. This is MANDATORY.
Purpose: To prevent delay as well as enhance the orderly and speedy discharge of judicial
functions. Consequently, any delay in implementing tax measures would be to the detriment
of the public. It is for this reason that protests over tax ordinances are required to be done
within certain time frames.
53
registration papers as being the official address of said principal office sahll be considered the
situe thereof.
NOTE: In case of relocation of the the principal office to another city or municipality, it shall
be the duty of the owner, operator or manager of the business to give due noticeof such
transfer to the local chief executive (mayor) of the cities or munics concerned within 15 days
after such transfer is effected.
Branch or Sales Office- a fixed place in a locality which conducts operations of the business
as an extension of the principal office. Example- warehouses which accept orders and/or
issue sales invoises independent of a branch with sales office are considered as sales offices.
NOTE: Offices used as display areas of the products are not wihtin the purview of branch or
sales office.
Warehouse- a building utilized for the storage of products for sale and from which goods are
withdrawn for delivery to customers or dealers or by persons acting in behalf of the business.
SALES ALLOCATION. Recording of sales shall be governed by the following rules:
1. Sales made in a locality where there is a branch or sales office or warehouse shall
be recorded in said branch and the tax shall be payable to the city or munic where
the same is located.
2.
In cases where there is no such branch, the sale shall ne recorded in the principal
office along with the sales made by the principal office and the tax shall accrue to
the city or munic where said principal office is located.
3.
In case where there is a factory project office or plantation in the pursuit of the
business, 30 per cent of all sales recorded in the principal office shall be taxable by
the city or munic where the principal office is located and 70 per cent of all sales
recorded in the principal office shall be taxable in the principal office where the
factory projecto office or plantation is located.
NOTE: LGUs where only experimental farms are located shall not be entitled to the sales
allocation.
A.) In case of a plantation located in a locality other than that where the factory is
locadted, the 70 per cent sales allocation shall be divided as follows:
a.) 60 per cent to the city or munic where the factory is located
b.) 40 per cent to the city or munic where the plantation is located
B.) In case where there are 2 or more factories, plants located in different localities,
the 70 per cent sales allocation shall be prorated among the localities where such
factories or plants are located in proportion to their respective volumes of
production during the period for which the tax is due.
C.) The foregoing sales allocation shall be applied irrespective of whether or not slaes
are made in the locality where the factory or plantation is located.
D.) In case of manufacturersor producers which engage the services of an independent
contractor to manufacture or produce some of their products, these rules on situs
of taxation shall apply except that the factory or plant and warehouse of the
contractor utilized for the production and storae of the manufacturers products
shall be considered as the factory or plant or warehouse of the manufacturer.
Port of Loading. The city or munic where the port of loading is located shall not levy and
collect the tax impossable on business and occupation UNLESS the exporter maintains in said
city or municipality its prinicpal office.
Situs of Excise Tax. The situs of an excise tax depends upon the place in which the act is
performed or occupation engaged in. it does not depend on the domicile of the person
subject to the excise tax nor upon the physical location of the property but depends upon the
place in which the act is performed or occupation engaged in.
Situs of Sale. The place of the consummation of the sale determines the situs. An LGU can
validly tax the sales to customers outside of its territory as long as the orders were booked
and paid for in the companys branch office in the city.
SPECIFIC TAXES THAT MAY BE LEVIED BY LGUs
Taxing Powers of Provinces
The province may levy only the following taxes, fees and charges:
1.
Taxes on transfer of Real Property Ownership at rate not more than 50
per cent of 1 per cent of total consideration;
2.
Franchise tax- at a rate not exceeding 50 per cent of 1 per cent of the
gross receipts for the preceeding calendar year;
3.
Tax on Sand, gravel and other Resources- at a rate not more than 10 per
cent of fair market value;
4.
Tax on business of Printing and Publication- at a rate not exceeding 50
per cent of 1 per cent;
5.
Professional Tax- at a rate not more than 300 pesos annually.
6.
Amusement Tax- at a rate not more than 10 per cent of gross receipts
from admission fees;
7.
Annual fixed tax for every Delivery truck or van of manufacturers in
certain products- at a rate not exceeding 500 pesos annually.
[PD FRAPS]
Taxes on transfer of Real Property Ownership. Taxes on the sale, donation, barter or on any
other mode of transferring ownership or title of real property at rate not more than 50 per
cent of 1 per cent of total consideration involed in the acquisition of property or their fair
market value in case the monetary consideration involved in the transfer is not substantial,
whicever is higher.
Exemption. The sale, transfer or any disporition of real property pursuant to RA No. 6657
(The Comprehensive Agrarian Reform Law of 1998). Also, socialize housing for the benefit of
the underprivileged and homeless is exempt from transfer tax. Also, the change in ownership
of the corporation will not trigger the tax on transfer of real property. Moreover, the
54
subsequent registration of title to the land in the name of condominium corporation is not
subject to transfer tax.
NOTE: Transfers without monetary consideration such as donations, braters and succesion
are taxbale. What is being taxed is the exercise of privilege to transfer or convey a property.
The determining factor is whether or not there is indeed a transfer of ownership or title over
the real property.
The acquisition for official use of embassies, consulates or diplomats is exempted from
transfer tax under the generally accepted principles of international laws.
Tax on business of Printing and Publication. Tax on the business of persons engaged in the
printing of and publication of books, cards, posters, leaflets, etc. at a rate not exceeding 50
per cent of 1 per cent of the gross annual receipts for the preceeding calendar year. In case
of a newly started business, it shall not exceed the 1/20 of 1 per cent of the capital
investment.
Exemption: the recepts from the printing of books or other reading materials prescribed by
the DepEd as school texts or references.
Franchise Tax. Tax on the business enjoying franchise at a rate not exceeding 50 per cent of 1
per cent of the gross receipts for the preceeding calendar year based ont eh incoming receipt
realized within its territorial jurisdiction. In case of a newly started business, it shall not
exceed the 1/20 of 1 per cent of the capital investment. In the succeeding year, the tax shall
be based on the gross receipts for the preceeding claendar year.
Franchise- a right or privilege, affected with public interest which is conferred upon private
persons or corporations, under such terms and conditions as the government may impose in
the interest of public welfare, security and safety.
Franchise tax- tax on the privilege of transacting business in the state and exercising
ccorporate franchise by the State. It is a concurrent power simultaneously exercised by
national and local governments. Aside form national franchise tax, the franchisee is still liable
to pay a local franchise tax, unless it is expressly and unequivocally exemtped from the
payment thereof.
Territorial Limits. Provinces should impose the franchsie tax on businesses whitin its
territorial jurisdiciton, thus excluding the territorial limits of any city located therein.
Tax on Sand, gravel and other Resources. Levy and collect at a rate not more than 10 per
cent of fair market value in the locality per cubic mter of ordinary stones, sand, gravel and
other os similar nature as defined in the NIRC extracted from public lands or from the beds of
seas, lakesm streams, creeks and other public waterswithin its territorial jurisdiction.
The proceeds on the tax shall be distributed as follows:
Component city or municipality where the sand, gravel, etc are extracted
- 30 per cent
Barangay where the sand, gravel, etc. are extracted- 40 per cent
NOTE: The permit to extract shall be issued exclusively by the provincial governor.
The Regalian doctrine does not apply because tax a burdens and are construed strictissimi
juris against the government.
The authority to impose taxes on such nature belongs to the province and not to the
municipalitywhere they are found.
Professional Tax. Annul professiznal tax on each person engaged in the exercise or practice
of a profession requiring government examination at such amount and resaonable
classification as the sangguniang panlalawigan may determine but shall in no case exceed
300 pesos.
Where to pay? It shall be paid to the province where he practices his profession or where he
maintains his principals in case he practices his profession in several places. However, such
person who has paid the corresponding professional tax shall be entitled to practice his
profession in any part of the Philippines without being subject to any other national or local
tax, license, or fee for the practice for such profession.
It is the duty of the employer to require the payment of his employees profesional tax on his
profession beofre employment and annually thereafter. It shall be payable annuall or on or
st
before the 31 day of January.
NOTE: Professionals exclusively employed in the government shall be exempt from the
payment of this tax.
Those covered professionals are those who only passed the bar examination or any board or
other examinations conducted by the PRC.
Amusement Tax. Provinces may levy tan amusement taxt to be collected from the
proprietors, lesees or operatoers of theathers, cinemas, concert halls, boxing stadiaand other
places of amusements at a rate not more than 10 per cent of gross receipts from admission
fees.
Amusment is a pleasurable diversion and entertainment. It is synonymous to relaxation,
pastime or fun.
EXEMPTION: The holding of operas, concerts, dramas, paintings, flower shows, musical
programs, literay and oratorical presentations except pop rock or similar concerts shall be
expemt from the payment of the tax.
The proceeds from the amusment taxt shall be shared equally by the province and the
municipality where such amusement places are located.
Amusement not covered by amusment tax:
1. Professional basketball games
2. Resorts, swimming pools, bath houses, hot springs and tourist spots
NOTE: LGUs cannot impose amusement tax pursuant to the principle of pre-emption.
Annual fixed tax for every Delivery truck or van of manufacturers in certain products.
Annual fixed tax for every truck, van or any vehicle used by manufactures, producer,
wholesalers, dealers, etc in the delivery or distribution of distilled spirits, fermented liquors,
soft drinks, cigars, etc wihtin the province at a rate not exceeding 500 pesos annually.
Taxing Powers of Municipalities
55
Municipalities may levy taxes, fees and charges not otherwise levied by the province.
Tax on business. See Section 143 of the LGC.
NOTE: SERVICE is not an article of commerce. The word article refers to such material or
corporeal things as goods or physical property, which is distinguished from service which is
intangible product.
Taxing Powers of Cities
There are three classifications of cities provided in the Local Government Code, namely, (1)
highly urbanized city, which is a city of at least 200,000 inhabitants AND an income of at least
50 million pesos at 1991 prices; (2) component city, which is a city which that does not meet
the criteria for highly urbanized cities; and (3) independent component city, which is a
component city whose charter prohibits its inhabitants from voting in the provincial
elections.
Among local government units, the city has the widest scope of taxing. Section 151 of the
Local Government Code states:
[A] city may levy the taxes, fees, and charges which the province or municipality
may impose The rates of taxes that the city may levy may exceed the maximum
rates allowed for the province or municipality by not more than fifty percent (50%)
except the rates of professional and amusement taxes.
From that provision, a city covers the scope of taxing of either a municipality or a province. It
is also authorized to collect a higher tax rate, i.e. 50% of the maximum rates allowed for the
province or municipality. (Insight) The reason why a city is provided a much wider scope and
a greater power is that cities are generally the centers of commerce, transportation, religion,
education, finance, and culture of a certain province or locality. Being centers of such
activities, cities need more revenues to fund its many activities and projects that are involved
in the mentioned activities.
The provision above is the general scope of taxation for cities. In addition to such general
scope, cities may also levy and collect a percentage tax on any business not provided in the
list of specific businesses a municipality may taxed on, at rates not exceeding three percent
(3%) of the gross sales or receipts of the preceding calendar year. Moreover, cities may
collect a professional tax at a rate of 300.00 Pesos per calendar year per professional, and an
amusement tax on paid admission at a rate not exceeding 10% of the gross receipts from
admission fees. Lastly, highly urbanized cities has a share of 60%, of the proceeds of the tax
on sand, gravel, and other quarry resources extracted from within the boundaries of the city.
The taxes, fees and charges levied and collected by highly urbanized and independent
component cities shall accrue to them. The provinces do not have a share as such cities are
fiscally and politically independent from the province
Taxing Powers of Barangays
As stated, cities have the greatest scope of taxing. As a contrast, barangays have the
narrowest scope of taxing and has the least revenue-raising powers. Its scope of taxation is
listed in Section 152 of the Local Government Code, and it states that barangays may levy or
collect the following:
1.
2.
3.
4.
[BROS-CAR]
2.
Toll Fees or Charges for the use of any public road, pier, or wharf,
waterway, bridge, ferry or telecommunication system funded and
constructed by the local government unit concerned.
56
3.
1.
For every Five thousand pesos (P5,000.00) worth of real property in the
Philippines owned by it during the preceding year based on the valuation
used for the payment of real property tax under existing laws, found in
the assessment rolls of the city or municipality where the real property is
situated - Two pesos (P2.00); and
2.
[SToP]
Toll fees may not be collected from the following classes of people: (1) Members of the PNP
and AFP who are on mission; (2) post office personnel delivering mail; (3) physicallyhandicapped individuals; and (4) disabled individuals who are at least 65 years old. Toll fees
may also not be collected when public safety and welfare so require.
Community Tax
A community tax, or a residence tax (certificate), is a form of identification, which has its
origins from the Spanish period. (Insight) The English term community tax certificate is a
euphemism of the Spanish word cdula (sedula in Tagalog), which has a strongly negative
connotation due to the events that took place during the Philippine Revolution, particularly
43
when the revolutionaries cried Punitin and sedula! at Pugadlawin as a sign of protest and
revolt against the Spaniards who had been taxing the Filipinos heavily for centuries.
Although it has been a traditional form of identification for centuries, for notarial purposes,
however, it is no longer valid.
Individuals who are liable for community tax are inhabitants of legal age who:
1. Is engaged in business or occupation; or
2. Is required by law to file an income tax return; or
3. Owns real property with an aggregate assessed value of 1,000 pesos or
more; or
4. Has been regularly employed on a wage or salary basis for at least 30
consecutive working days.
[BROS]
They shall pay an annual community tax of five pesos and an addition tax of one peso for
every one thousand pesos of income, which in no case shall exceed 5,000 pesos.
As for juridical persons, every corporation no matter how created or organized, whether
domestic or resident foreign, engaged in or doing business in the Philippines shall pay an
annual community tax of Five hundred pesos (P500.00) and an annual additional tax, which,
in no case, shall exceed Ten thousand pesos (P10,000.00) in accordance with the following
schedule:
43
There are only two kinds of persons who are exempt from paying the community tax, and
they are:
1. Diplomatic and consular representatives, for reasons of international
comity; and
2. Transient visitors when their stay in the Philippines does not exceed
three months, which is often the period granted to tourists arriving in the
country. (Insight) As the community tax certificate is a residence
certificate, it is illogical to impose such to transient visitors for the simple
reason that they do not intend to reside here.
Since a community tax certificate is a form of identification, it is required to be presented on
certain occasions when an individual or juridical person transacts with the State, particularly:
1. When an individual acknowledges any document before a notary public, takes
the oath of office upon election or appointment to any position in the
government service; receives any license, certificate. or permit from any
public authority; pays any tax or free; receives any money from any public
fund; transacts other official business; or receives any salary or wage from any
person or corporation with whom such transaction is made or business done
or from whom any salary or wage is received; and
2.
When, through its authorized officers, any corporation receives any license,
certificate, or permit from any public authority, pays any tax or fee, receives
money from public funds, or transacts other official business.
For voters registration purposes however, the individual is not required to present such
community tax. (Insight) The reason is that the State, and no less other than the
Constitution, recognizes the sanctity of the right of an individual to vote. It is an exercise of
civil rights that enjoys a higher privilege over the States need to have a system of identifying
its citizens. The State has means, other than requirement of presentation of the community
tax certificate, to identify a registrant.
Collection of Local Taxes
Generally, the tax period is the calendar year. The taxes may be paid in quarterly
installments. (Insight) Such manner of payment is for the benefit of the taxpayer. This is also
consistent with the prevailing Filipino culture that favors small payments so as not to feel the
impact of spending a big amount in one transaction to pay his or her taxes.
As for accrual, it is on the first day of January, or New Years Day. Payment should be made
within twenty days from the date of accrual of the tax, that is until January 20, or for
installments, until April 20, for the second quarter; until July 20, for the third; and until
October 20, for the last.
The Sanggunian, however, may extend the time for payment without imposing any
surcharges or penalties, but only for a period not to exceed six months.
If payment is not made within the allotted time, a surcharge not exceeding 25%, and an
interest not exceeding 2%, may be imposed. Interest shall, however, stop from accruing at
th
the end of the 36 month.
It is the treasurer of the local government unit (i.e. the barangay, municipal, city, or
provincial treasurer) or his duly authorized deputy who shall collect the taxes, fees and other
charges. Such treasurer has the power to examine the books of accounts and pertinent
records of any natural or juridical person for the purpose of ascertaining, assessing and
collecting the correct amount of tax.
Remedies for Collection of Revenues
There are two major remedies for the collection of revenues, and they are (1) the imposition
of a local governments lien and the (2) availing of civil remedies.
A local governments lien, which is superior to all liens, charges or encumbrances in favor of
any person, enforceable by appropriate administrative or judicial action, is imposed to any
property or rights therein, which includes property used in business, occupation, practice of
profession or calling, or exercise of privilege, for the payment of local taxes, fees, charges
and other revenues. The lien may only be extinguished upon full payment of the delinquent
local taxes fees and charges including related surcharges and interest.
Civil remedies may either be an administrative action through the distraint of personal,
including incorporeal, property, and the levy upon real property and interest in or rights to
real property, or a judicial action.
For distraint of personal property, the procedure is as follows:
1. Seizure
2. Accounting of distrained goods;
3. Publication;
4. Release upon payment before sale;
5. Sale;
6. Disposition of proceeds
44
Notice of levy
1.
2.
3.
Redemption
Within one year from the sale,
the delinquent taxpayer has
the right to redeem the
property upon payment of the
taxes, etc. plus an interest of
2% per month on the purchase
price.
Advertisement
Within 30 days after levy, the LGU treasurer shall advertise for at least 30 days the
sale or auction of the property levied.
Staying of Sale
At any time before the date
of the sale, the taxpayer may
stay the proceedings by
paying the taxes, fees
charges,
penalties
and
interests.
Sale
The sale shall proceed if the taxpayer
fails to stay the sale through payment
Post-Sale Incidentals
1.
Within 30 days after the sale, a
report shall be made and delivered to the
sanggunian.
2.
A certificate of sale shall be issued to
the purchaser
3.
Any excess of the proceeds shall be
turned over to the owner.
Just like distraint, levy may be repeated once or several times as long as the full amount due
has not been extinguished.
Although either may be exercised several times, the law provides certain exemptions from
distraint or levy. (Insight) Such exemptions are provided in order for the delinquent
taxpayers dignity be recognized and that he be afforded his human rights to a decent living,
to health, to exercise his profession, and to survival. Furthermore, it is intended by the law
that the delinquent taxpayer be left with sufficient properties so that he could recover from
his financial woes.
The following are the exempted properties:
(a)
Provisions, including crops, actually provided for individual or family
use sufficient for four (4) months;
(b)
Household furniture and utensils necessary for housekeeping and
used for that purpose by the delinquent taxpayer, such as he may
select, of a value not exceeding Ten thousand pesos (P10,000.00);
(c)
One fishing boat and net, not exceeding the total value of Ten
thousand pesos (P10,000.00), by the lawful use of which a fisherman
earns his livelihood;
(d)
Any material or article forming part of a house or improvement of
any real property.
(e)
His necessary clothing, and that of all his family;
(f)
The professional libraries of doctors, engineers, lawyers and judges;
59
(g)
(h)
One (1) horse, cow, carabao, or other beast of burden, such as the
delinquent taxpayer may select, and necessarily used by him in his
ordinary occupation;
Implements and tools necessarily used by the delinquent taxpayer in
his trade or employment;
[PUBIC AngHIT]
For the other major remedy of judicial action, the procedure is (Insight) the same as any
other ordinary civil action akin to a petition for a collection of debt. The real party-in-interest
is the local government unit concerned, through its treasurer. The cause of action, however,
prescribes within five years.
Prescription
The following is a table of the periods of prescription of certain tax collection-related
activities, and the corresponding suspensions of the periods:
Tax Collection Activity Period
Suspension of the Period
Period of assessment,
in general
Period of assessment
when fraud is involved
Period to collect
10 years, from
discovery of fraud
5 years, from the
date of assessment
A protest of assessment may be filed before the local treasurer within 60 days from the
notice of assessment. The local treasurer shall decide within 60 days and may accept or
reject wholly or partially the protest.
As for claim of refund or tax credit, this is required to be filed before the local treasurer
before a a taxpayer may proceed to judicial relief. If a tax credit is granted, this is not
refundable to cash but may be applied to future tax obligations.
As for redemption, the delinquent taxpayer may redeem real property sold within one year
from the date of sale.
For judicial remedies, the taxpayer has the following options:
1. Court action;
2. Declaratory relief; and
3. Injunction.
For a court action, the following table demonstrates the procedure:
Mode
Appeal to the Secretary of
Justice
Period
to
file
the
Administrative Action
30 days from effectivity of tax
ordinance or measure
Denial
of
Assessment
of
Protest
For declaratory relief, the same procedure as stated in the 1997 Rules of Court shall apply.
Finally, for injunction, this may be availed by a taxpayer when he wishes to enjoin the
collection of a local tax.The issuance of a writ of injunction is prohibited if the subject matter
is a national internal revenue tax. The requisites of the issuance of a writ of injunction are: (1)
the existence of a clear and unmistakable right that must be protected; and (2) an urgent and
paramount necessity for the writ to prevent serious damage. Although the two requisites
60
may be present, the judge has the ultimate discretion to issue such writ. It is not a matter of
right especially that writs of injunction against local taxes are frowned upon.
Sources:
The Local Government Code of the Philippines (Republic Act No. 7160)
Efren Vincent Dizon, Taxation Law Compendium, Volume 1 (2013).
61
4.
FUNDAMENTAL PRINCIPLES
1. Real property shall be appraised at its current and fair market value.
2. Real property shall be classified for assessment purposes on the basis of its actual
use.
3. Real property shall be assessed on the basis of a uniform classification within each
LGU.
4. Appraisal and assessment of real property shall be equitable.
EXEMPT PROPERTIES
1. All RP owned by Republic or any of its political subdivisions
a. EXCEPTION: when the beneficial use has been granted to a taxable
person
2. Charitable institutions, churches, parsonages or convents appurtenant to and all
lands, buildings and improvements actually, directly and exclusively used for
religious, charitable or educational purposes
3. All machinery and equipment that are actually, directly and exclusively used by
local water districts and GOCCs engaged in the supply and distribution of water
and/or generation and transmission of electric power.
4. All real property owned by registered cooperatives in RA 6938
5. Machinery and equipment exclusively used for pollution control and environmental
protection
Ownership exemptions
On basis of ownership;
Owned by
1. Republic
2. Province
3. City
4. Municipality
5. Barangay
6. Registered
cooperatives
Character exemptions
On
basis
of
their
character
1. Charitable
institutions
2. Houses
and
temples
of
prayer
3. Non-profit or
religious
cemeteries
Usage exemptions
On basis of actual, direct and
exclusive use to which they are
devoted
1. All lands, buildings
and
improvements
actually, directly and
exclusively used for
religious, charitable or
educational purposes
2. All machinery and
equipment that are
actually, directly and
exclusively used by
local water districts and
GOCCs engaged in the
supply and distribution
of
water
and/or
generation
and
62
3.
transmission of electric
power
Machinery
and
equipment exclusively
used for pollution
control
and
environmental
protection
a.
Republic may grant beneficial use of its real property to any agency or
instrumentality when real property is transferred to it even as Republic
remains the owner.
63
Thus, where vendee assumed liability for taxes, vendee is liable because he acquired use and
possession of the property, even though title remained with the vendor pending full payment
of the purchase price in a contract of conditional sale.
Liability is prospective and does not cover delinquent taxes. This is because of the principle
that user of the property bears the tax. He cannot assume where he has no possession.
Assumption of tax by an exempt entitytax exempt entity may not validly assume the tax in
a contract with a taxable beneficial user with the intention of indirectly extending the
rd
formers exemption to the latter. Such does not bind the LGU, a 3 party not privy to the
agreement and the beneficial user remains to be liable. Realty tax is directly chargeable to
the beneficial user.
4.
COOPERATIVE: autonomous and duly registered association of persons, with a common bond
of interest, who have voluntarily joined together to achieve their social, economic and
cultural needs and aspirations by making equitable contributions to the capital required.
Purposes of cooperative
1. Encourage thrift and savings mobilization among members
2. Generate funds and extend credit to members for productive and provident
purposes
3. Encourage among members systematic production and marketing
4. Provide goods and services and other requirements to members
5. Develop expertise and skills among its members
6. Acquire lands and provide housing benefits for members
7. Insure against losses of members
8. Promote and advance the economic, social and educational status of members
9. Establish, own, lease or operate cooperative banks, cooperative wholesale and
retail complexes
10. Coordinate and facilitate activities of cooperatives
11. Advocate cause of cooperative movements
12. Ensure viability of cooperatives through utilization of new technologies
13. Encourage and promote self-help
14. Undertake any and all other activities for effective implementation of Cooperative
Code
Tax Treatment of cooperativeduly registered cooperatives which do not transact any
business with non-members or the general public shall not subject to any taxes and fees
imposed under internal revenue laws.
Cooperatives transacting business with both members and nonmembers shall not be
subjected to tax on their transaction with members. Transactions of members with the
cooperative shall not be subject to any taxes and fees, final taxes on members deposits and
documentary tax.
Tax exemptions of cooperatives dealing with nonmembers
1. Cooperatives with accumulated reserves an undivided net savings of not more than
10M shall be exempt from all national and local taxes.
a. Such cooperatives shall be exempt from customs duties, advance sales or
compensating taxes on their importation of machinery, equipment and
spare parts and which are not available locally
b. All tax free importations shall not be sold nor the beneficial ownership be
transfer to any person until after 5 years, otherwise cooperative and
transferee shall be solidarily liable to pay twice the amount of imposed
tax
2.
3.
Cooperatives with accumulated reserves an undivided net savings of not more than
10M shall pay the following taxes at full rate
a. Income taxamount allocated for interest on capitals
i. Same tax is not consequently imposed on interest received by
members
ii. Cooperatives are exempt from income tax from date of
registration with CDA
b.
c.
d.
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5.
on actual use irrespective of any previous assessment or taxpayers valuation which is based
on a taxpayers declaration.
Incidental and reasonably necessary use- classification of property as special is not limited to
property actually indispensable but to facilities that are incidental to and reasonable
necessary for the accomplishment of its purpose
Approaches in determining fair market valueassessor uses any or all in analyzing data
gathered to arrive at the estimate fair market value to be included in the ordinance
containing the schedule of fair market values.
2. Income
approach
Value
of
an
income
producing property is no
more than the return
derived from it. An analysis
of the income produced is
necessary in order to
estimate the sum which
might be invested in the
purchase of the property
capitalization
3. Replacement
or
reproduction
cost
approach
Factual
approach
used
exclusively in appraising
man-made
improvements
such as buildings and other
structures, based on such
data as materials and labor
costs to reproduce a new
replica of the improvement
No rigid rule
C. Rates of Levy, Penalties and Condonation
UNIFORM RATE OF BASIC REAL PROPERTY TAX
1. Province: not exceeding 1% of the assessed value of real property
2. City or municipality within Metro Manila Area: not exceeding 2% of the assessed
value of real property
Local Government Unit authorized to collect real estate tax on properties:
1. Within its territorial jurisdiction; and
2. Unquestionably within its geographical boundaries.
In case of BOUNDARY DISPUTE between two local governments, while the case is pending:
1. if the taxpayer already paid real property tax in one unit, no liability to pay in the
other unit
2. if he has yet to pay, deposit due real property taxes in an escrow account with a
government bank.
No public hearing shall be required before the enactment of a local tax ordinance levying the
basic real property tax.
SPECIAL LEVIES ON REAL PROPERTY
65
1.
2.
3.
4.
1.
2.
DECLARATION OF REAL PROPERTY: the sworn declaration of real property shall be filed with
the assessor concerned
1. every 3 years during the period from January 1st to June 30th commencing with
the calendar year 1992; and
2. within 60 days after the acquisition of such property or upon completion or
occupancy of the improvement.
*30 days from filing of declaration property, claim for Tax Exemption for such property, if
any, shall be filed with the provincial, city or municipal assessor
LISTING IN THE ASSESSMENT ROLL: real property shall be listed, valued and assessed in the
name of the owner or administrator, or anyone having interest in the property
APPRAISAL OF REAL PROPERTY: at the current and fair market value prevailing in the locality
where the property is situated
Schedules of Fair Market Value:
1. Published in a newspaper of general circulation in the province, city or
municipality; or in the absence thereof
2. Posted in the provincial capitol, city or municipal hall and in 2 other conspicuous
public places therein
ASSESSMENT: the assessment levels to be applied to the fair market value of real property to
determine its assessed value shall be fixed by ordinances of the sangguniang panglalawigan,
sangguniang panglungsod or sangguniang bayan of a munipality at the rates not exceeding
those provided in Section 218 of the Local Government Code.
*General revision of real property assessments shall be undertaken by the assessor within 2
years after the effectivity of the Local Government Code and every 3 years thereafter.
E. Duties of Certain Local Officials, Private Individuals, and Entities
Registrar of Deeds
66
Failure to provide such certificate: ROD will refuse the registration of the
document.
Notice of appeal is the last action which gives the owner of the property the right
to appeal to the Local Board of Assessment Appeals (LBAA).
Whenever the local assessor sends a notice to the owner or lawful possessor of
the real property, the assessor shall no longer have jurisdiction to entertain any
request or readjustment.
Where should the taxpayer go? The aggrieved party may bring his appeal to the
LBAA as provided by law.
To furnish free of charge the assessor of the province, city, municipality (PCM)
where the land is located with a white or blue print copy of each of all
approved original or subdivision plans or maps of surveys within 30 days from
receipt of such plans from Lands Management Bureau (LMB), Land
Registration Authority (LRA) or the Housing and Land Use Regulatory Board
(HLURB).
Registrar of Deeds and Notaries Public
To furnish the provincial, city, or municipal (PCM) assessors with copies of all
contracts selling, transferring, or otherwise conveying, leasing, or mortgaging
real property received by or acknowledged before them.
Insurance Companies to Furnish Information
By filing a petition under oath in the form prescribed for the purpose.
Together with the copies of the tax declarations and such affidavits or
documents submitted in support of the appeal
Motion for Reconsideration is not allowed
Motion for reconsideration is not allowed by the procedure to be filed by the
property owner to the local assessor.
67
charge, shall automatically become the chairman or member, respectively of said Board, as
the case may be.
Oath or Affirmation of Office
- The Chairman and members of the Board of Assessment appeals shall
assume their respective positions without need of further appointment or
special designation immediately upon the effectivity of the LGC.
Board Meetings
- The Board of Assessment Appeals of the province or city shall meet once a
month and as often as may be necessary.
- No member of the Board shall be entitled to per diems or travelling
expenses for his attendance in Board Meetings.
Exception:
When conducting an ocular inspection regarding a case under appeal.
No Suspension of Collection despite Appeal
Appeal on assessments of real property made under the provisions of LGC does
not suspend the collection of the corresponding realty taxes on the property
involved.
Powers of the Board in the Exercise of its Appellate Jurisdiction
1. Summon witnesses
2. Administer Oaths
3. Conduct Ocular Inspection
4. Take Depositions
5. Issue Subpoena and Subpoena Duces Tecum
Decision and Degree of Evidence Required
The Board after hearing, shall render its decision based on substantial evidence
or such relevant evidence on record as a reasonable mind might accepts as
adequate to support the conclusion.
The Board shall decide the appeal within 120 days from the date of receipt of
such appeal.
Exception to Exhaustion of Administrative Remedies
Exhaustion of administrative remedies does not apply in cases where the
controversy does not involve questions of fact but only of law.
In this case, the jurisdiction is with the trial court.
Estoppel in Questioning Jurisdiction
A party cannot invoke a courts jurisdiction to secure affirmative relief and,
after failing to obtain the requested relief, question that same jurisdiction.
Hearing Officers
- shall be appointed by the Central Board of Assessment Appeals pursuant to the
civil service laws, rules, and regulations.
- shall serve for 6 years, without reappointment until their successors have been
appointed and qualified.
Fact-Finding Function
CBAAs authority is not limited to the exercise of its appellate jurisdiction.
Why? Because the Supreme Court, in the exercise of its extraordinary jurisdiction,
may also designate it as a court appointed fact-finding commission to assist the
court in factual decisions raised in certain actions such as prohibition.
Barangay Treasurer
May be deputized by the city of municipal treasurer to collect all taxes on
real property located in the barangay provided that the barangay
treasurer is properly bonded.
Collection by Municipalities
Real property tax is a provincial imposition
68
There shall be annotated on the tax receipts the words paid under protest.
Protest Not Required in Refund
Protest is not a requirement in order that a taxpayer who paid under a mistaken
belief that it is required by law, may claim for a refund.
Procedure
Should the taxpayer or real property owner question the excessiveness of
reasonableness of the assessment, the taxpayer should first pay the tax due before
his protest can be entertained.
There shall be annotated on the tax receipts the words paid under protest
The local treasurer would not entertain the protest unless the tax due has been
paid.
If the local treasurer denies the protest or fails to act upon it within the 60-day
period, the taxpayer or real property owner may then appeal or directly file a
verified petition with the LBAA within 60 days from denial of the protest or receipt
of the notice of assessment.
Assessment of basic real property tax or any other tax is found to be illegal or
erroneous
Taxpayer may file a written claim or refund or credit for taxes and
interests within 2 years from the date that the taxpayer is entitled to
such reduction or adjustment.
The provincial or city treasurer shall decide the claim for tax refund or
credit within 60 days from receipt thereof.
Claim for tax is denied the taxpayer may avail of assessment appeals.
Payment under Protest
No protest shall be entertained unless the taxpayer first pays the tax.
69
In no case shall the total interest on the unpaid tax or portion thereof exceed 36
months.
Service of Warrant
- It shall be mailed to or served upon delinquent owner or person having legal
interest therein
- In case the person is out of the country or cannot be located, to the
administrator or occupant of the property.
- Notice is mandatory
Local treasurer cannot rely solely on the tax declaration but must verify
with the Register of Deeds
Annotation
- Written notice of the levy with the attached warrant shall be mailed to or
served upon the assessor and the Registrar of Deeds (RD) of the province, city,
or municipality within Metro Manila
- Assessor shall annotate the levy on the tax declaration while RD shall annotate
on the title of the property
Report
- Within 10 days after receipt of warrant by owner, levying officer shall submit a
report on the levy to the sanggunian concerned
Stay of Proceedings
- Owner or person having legal interest may stay the proceedings by paying the
delinquent tax, interest due and expenses of sale at any time before the date
fixed for the sale.
- Payment of delinquent tax even at the auction stage is allowed, provided the
entire amount with interest and expenses is paid. The public auction will be
stopped.
The sale shall be held at the main entrance of the provincial, city, or municipal
building, or on the property to be sold, or at any other place as specified in the
notice of the sale.
Local treasurer shall prepare and deliver to the purchaser a certificate of sale.
Proceeds of the sale in excess of the delinquent tax shall be remitted to the owner
or person having real interest therein.
Local treasure may, by ordinance duly approved, advance an amount to defray the
costs of collection.
Redemption of Property Sold
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Right to redeem exists within 1 year from the date of sale, upon payment to the
local treasurer of the amount of the delinquent tax including interests and
expenses of sale, plus interest of not more than 2% per month on the purchase
price from date of sale to the date of redemption
o Exception: If a local ordinance provides that the one-year redemption
period should be counted from the date of annotation of the sale of the
property at the proper registry
o In cases involving redemption, the law protects the original owner.
Payment will invalidate the certificate of sale issued to the purchaser; owner or
person with legal interest shall be entitled to a certificate of redemption, issued by
local treasurer or his deputy
From date of sale until expiration of the period of redemption, delinquent owner or
person with legal interest shall be entitled to the income and other fruits of the
subject property.
Local treasurer or his deputy, upon receipt of certificate of sale, shall return to the
purchaser the entire amount paid by him plus interest of not more than 2% per
month.
Purchase by LGU
- Local treasurer shall purchase the real property in behalf of LGU concerned if (i)
theres no bidder or (ii) the highest bid is for an amount insufficient to pay the
real property tax and the related interest and costs of sale
- RD shall transfer the title of the forfeited property to the LGU without necessity
of an order from a competent court
- Taxpayer or his representative may redeem the property within 1 year from
date of such forfeiture, by paying the full amount of the real property tax and
the related interest and costs of sale.
- If not redeemed, ownership shall be fully vested on the LGU.
J. Prescription
Prescriptive Period for Collection of Basic Real Property Tax
Real property tax and any other tax levied under LGC shall be collected within 5
years from the date they became due.
In case of fraud or intent to evade payment of the tax, within 10 years from
discovery of such fraud or intent to invade payment
Prescriptive periods were provided to enforce the collection of real property tax
within a specific time. Beyond the period, no action for collection shall be
instituted.
If local treasurer has been sending notices of delinquency and/or reminder letters
for payment, the tax may be collected even beyond the 5-year period.
Prescription may only be validly invoked by taxpayer if local treasure neglected or
deliberately failed to perform his mandated duties.
Interruption or Suspension of Prescriptive Period
The period to collection shall be interrupted or suspended in the following instances:
i. Local treasurer is legally prevented from collecting the tax
ii. Owner of the property or the person having legal interest therein requests
for reinvestigation and executes waiver in writing before the expiration of
the period within which to collect, and
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iii. Owner of the property or the person having legal interest therein is out of
the country or otherwise cannot be located
Prescriptive Period for Refund or Credit
Taxpayer may file a written claim for refund or credit for taxes and interests with
the provincial or city treasurer within 2 years from the date of entitlement to such
reduction or adjustment.
CHAPTER 8
PHILIPPINE TARIFF AND CUSTOMS
A.
Tariff the system of imposing duties or taxes on the importation of foreign merchandise
Customs duties taxes on the importation or exportation of commodities; a tax levied on
imports by the customs authorities of a country to raise state revenue, and/or to protect
domestic industries from competitors abroad
GENERAL RULE: All articles imported from foreign country into the Philippines are subject to
duty. The same rule applies if the article has been previously exported from the Philippines
EXCEPTIONS: (EPIS-G)
1. Those expressly exempted under the Tariff and Customs Code
Example: conditionally free importations (Sec. 105)
2. Grant of exemption by the President of the Philippines
3. Those exempted pursuant to special laws
Example: RA 9290
4. Exemption granted to government agencies, instrumentalities, and GOCCs with
contracts and agreements with foreign countries or international organizations
5. Exemption of international organizations or institutions pursuant to agreements,
treaties or special laws
Fees Charged by the Bureau of Customs (WHAT-BS)
Wharfage
due
Harbor fee
Arrastre
charge
Tonnage
due
Berthing
charge
What
Amount assessed against the cargo of the
vessel engaged in foreign trade based on the
quantity, weight, or measure received or
discharged by such vessel
Payment for each entrance into or departure
from a port of entry in the PH
Payment for the handling, receiving, and
custody of the imported or exported article or
baggage of the passengers
Amount paid based on the net tonnage of the
vessel or weight of the articles discharged or
laden in PH
Amount assessed against a vessel for mooring
or berthing at a pier or wharf at any port in the
PH
Who Pays
Owner, consignee, or agent
of the owner or consignee
of the article
Owner, agent, operator or
master of a vessel
Owner, consignee, or agent
of the owner or consignee
of the article or baggage
Owner, agent, operator, or
master of the vessel
Owner, agent, operator, or
master of the vessel
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Fraudulent practice any article sold, bartered, hired or used for purposes other than that
they were intended without prior payment of duties, taxes or charges due and payable at the
time of entry
Articles Subject to Duty goods, ware, merchandise and anything that may be made the
subject of importation or exportation
1. Freely-importable articles articles that may be imported without regulation,
prohibition, or prior clearance from the government
2. Regulated articles articles which may be imported in the PH subject to clearances
or permits from appropriate regulatory government agencies or departments
3. Money, checks, and money orders
Storage
charge
Prohibited Articles
1. Absolutely prohibited articles
Example:
a. Written or printed articles advocating or inciting treason, rebellion, sedition,
insurrection or subversion against the government of PH
b. Written or printed articles, negatives, or cinematographic film, photograph
and similar articles representing obscene or immoral character
c. Articles, drugs, instruments for producing unlawful abortion
d. Opium pipes and parts thereof
2. Qualifiedly prohibited articles those that may be imported subject to certain
conditions or limitations
a. Dynamite, gunpowder, ammunition and other explosives, firearms and
weapons of war
b. Devices used for gambling (roulette wheels, gambling outfits, loaded dice,
marked cards)
c. Lottery and sweepstakes tickets except those authorized by the PH
government
d. Any article manufactured in whole or in part of gold, silver or other precious
metals or alloys thereof, the stamps, brands or marks of which do not indicate
the actual fineness of quality of said metals or alloys
e. Marijuana, opium poppies, coca leaves, heroin and other narcotics or
synthetic drugs which are declared habit-forming by the president of PH
Conditionally-free Importations articles that are exempt from payment of import duties
upon compliance with prescribed formalities or regulations
73
Method Two: Transaction Value of Identical Goods transaction value of identical goods
sold for export and exported at or about the same time as the goods being valued.
*Identical goods: same in all respects (physical characteristics, quality, reputation)
Method Three: Transaction Value of Similar Goods transaction value of similar goods for
export and exported at or about the same time as the goods being valued.
*Similar goods: although not alike in all respects, have like characteristics and like
component materials which enable them to perform the same functions and to be
commercially interchangeable.
*Right of Collector of Customs: When a declaration has been presented and when
the customs administration has reason to doubt the truth or accuracy of such
documents produced, he may ask the importer to provide further explanation that
the declared value was adjusted in accordance with the provisions of Method One.
If, after receiving further information, or in the absence of a response, he
still has reasonable doubt therein, it may be deemed that the customs value of the
imported goods cannot be determined under Method One, without prejudice to an
importers right to appeal.
Method Four: Deductive Value based on the unit price sold in the Philippines in the
greatest aggregate quantity to persons not related to the persons from whom they buy such
goods.
a. dutiable by the gross weight weight of the same, together with the weight of
all containers, packages, holders, and packing of any kind at the time of
importation.
b. dutiable by the legal weight - weight of the same, together with the weight of
immediate containers, packages, holders, and packing in which such articles are
usually contained at the time of importation and/or, when imported in retail
packages, at the time of their sale to the public in usual retail quantities.
c. dutiable by the net weight only the actual weight of the articles at the time of
importation.
d. articles affixed to cardboard, wood, paper or similar common material dutiable
together with the weight of such holders.
e. single package contains imported articles dutiable according to different
weights common exterior receptacles shall be prorated.
*Limitations: No dutiable value shall be determined under this method on the basis
of:
1. selling price in the Philippines of goods produced in the Philippines;
2. system that provides for the acceptance for customs purposes of the
higher of 2 alternative values;
3. price of goods in the domestic market of the country of exportation;
4. cost of production, other than computed values, that have been
determined for identical or similar goods
5. price of goods for export to a country other than the Philippines;
6. minimum customs values; or
7. arbitrary or fictitious values.
3. Rate of Exchange value and prices quoted in foreign currency shall be converted into the
currency of the Philippines at the current rate of exchange by the BSP.
4. Effective Date of Rates of Import Duty
*Imported articles existing at the time of entry or withdrawal from a warehouse
in the Philippines for consumption.
*Articles Abandoned/Forfeited/Seized on the date of the public auction
*Dutiable Weight/Quantity/Volume of Articles at the time of their entry into the
warehouse or date of abandonment, forfeiture and/or seizure.
5. Entry or Withdrawal from Warehouse, for Consumption:
74
*deemed entered in the Phil. for consumption when specified entry form is
properly filed and accepted, together with any related documents required, at the port or
station, by any the customs official designated to receive such and the required fees have
been paid provided that the article has previously arrived within the limits of the port of
entry.
*deemed withdrawn from a warehouse in the Phil. For consumption when
the specified form is properly filed and accepted at the time of withdrawal by the customs
official designated to receive the withdrawal entry and any fees required to be paid at the
time of withdrawal have been deposited.
C.
1. Regular Duties/Tariff Barriers Taxes that are imposed or assessed upon merchandise
from, or exported to a foreign country for the purpose of raising revenue. It may also limit
the amount of goods, which can be imported into a country.
Purpose of Tariff Barriers: Designed to protect the domestic manufacturers or producers
from foreign competition.
Kinds of Regular Duties/Tariff Barriers
when destined for domestic consumption in the exporting country. (Formula: Anti-Dumping
Duty =Normal Value Export Price)
Elements of Dumping:
a. Like Product
b. Price Difference
c. Injury
d. Causal Link
Effects of Dumped Products:
a. Price Depression
b. Price Suppression
c. Price Undercutting
Procedure:
a. Filing of Anti Dumping Protest
b. Filing a Bond
c. Prima Facie Determination
d. Preliminary Determination
e. Final Determination
f. Issuance of Department Order
g. Judicial Review
75
Procedure:
h. Filing a Petition
i.
Prima Facie Determination
j.
Preliminary Determination
k. Final Determination
l.
Issuance of Department Order
m. Judicial Review
Subsidy Any specific Assistance directly or indirectly provided by the government of the
country of export or origin in respect of the product imported into the Philippines.
a.
b.
c.
(ii.)
Note:
If such foreign country increased its said discrimination against the commerce of the
Philippines, the president if he deems it consistent with the interest of the Philippines, issue
further proclamation that the said product and articles of the foreign country imported in its
vessel, shall be excluded from importation into the Philippines.
2.5. Safeguard Measure Duties - It is imposed to protect domestic industries and producers
from increased imports which cause or threaten to cause serious injury to those domestic
industries and producers.
Note:
Industries are deemed to have received subsidy as a result of : ( i) Direct or potential transfer
of government fund (ii) The government foregoing the revenue that should have otherwise
been collected ( iii) The government providing goods or services or purchasing goods
Note:
The Secretary shall apply a general safeguard measure upon a positive final determination of
the Commission that a product is being imported into the country in increased quantities as to
be a substantial cause of injury or threat to the domestic industry.
2.3. Marking Duty It is imposed on every article of foreign origin imported into the
Philippines which is not marked in any official language of the Philippines in a conspicuous
place as legibly, indelibly and permanently as the nature of the article or its container will
permit (in such a manner as to indicate to an ultimate purchaser in the Philippines) the name
of the country of origin of the article.
Note:
The failure or refusal of the owner or importer to mark the articles within a period of thirty
days after due notice shall constitute as an act of abandonment of said articles.
2.4 Discriminatory Duty It is imposed on articles wholly or in part the growth or product of
or imported in a vessel of any foreign country whenever such country:
(i.)
a.
b.
c.
d.
Note:
The DA Secretary shall issue a DO requesting the DF Secretary to impose additional special
safeguard duty on agricultural product if: (i) Its cumulative import volume in a given year
exceeds its trigger volume and (ii) Its actual import price is less than its trigger price, both
subject to conditions of RA 8800.
D.
Basis: The Congress, may, by law authorize the President to fix within the specified limits,
and subject to such limitations and restrictions as it may impose, tariff rates, import and
export quotas, tonnage and wharfage dues, and other duties or imposts, within the
76
framework of the national development program of the government. (Section 28(2) of Article
VI of the 1987 Constitution)
*May be exercised even for revenue purposes only
Tariff Powers of the President:
1) Increase, reduce, or remove existing protective rates of import duties including the
necessary changes in the classification
Condition: increase in the rate cannot exceed 100% ad valorem
2) Establish import quota or ban import of any commodity whenever necessary
3) Impose additional duty on ALL imports, not exceeding 10% ad valorem whenever
necessary
4) Cause a gradual reduction of protection levels upon periodic investigations by the
Tariff Commission and recommendation of NEDA
Requisites for the Exercise of Power
1) In the interest of national economy, general welfare and/or national security
2) Recommendation of NEDA to the President
a) Tariff Commission must conduct an investigation
b) Public hearing shall be held
c) Report shall be submitted to NEDA within 30 days after termination of the
public hearing
Except: in the imposition of additional duty not exceeding 10% ad valorem
Power to modify the form of duty: the corresponding ad valorem or specific equivalents of
the duty with respect to imports from the principal competing foreign country for the most
recent representative period shall be used as bases
2)
E.
US$ 250
Kabuhayan
Shopping
Privilege
(livelihood
tools): US$ 2,000
All other passengers
(Tourists and Filipinos
traveling to or returning
from abroad)
2)
US$ 1,000
US$ 250
As to Quantity
77
Cigarettes 2 reams
Tobacco 2 tins
Liquor and/or wine 2 bottles
Non-consumable items (value exceeds US$ 200) 1 only
3)
4)
5)
6)
7)
8)
Protect
the
legitimate
interests
of
consignors/senders and their consignees and the
transacting public
a)
b)
c)
d)
Importation of used vehicles continue to be regulated, require prior authority from BIS, DTI
Individuals may be allowed to bring in used vehicles:
a) returning Filipino/former Filipino citizen (stayed abroad for more
than a year)
b) immigrant to the Philippines (at least a holder of a 13G Visa duly
issued by BID)
Provided:
i)
only 1 unit per family;
ii)
registered in his name for at least 6 months prior to
shipment; and
iii)
proof can be presented that it was acquired out of
the earnings abroad
Requirements and applicable duties
1. personal presence of the car-owner
2. vehicle must be left-hand drive
3. subject to 40% Customs duty, 10% VAT and Ad Valorem Tax from
15% to 100% (depending on its piston displacement)
4. its book value serves as the tax base (not the purchase price nor the
acquisition cost)
5. spare parts are taxed separately
6. older model: depreciation schedule is 10% per year counted
downwards from current year (which has 0% depreciation rate)
7. with piston displacement of 2000 cc: max depreciation of 50%;
below 2000 cc: max of 70%
F.
EXPORT DUTIES
E.O. No. 26, July 1, 1986 abolished the export duties on all export products
78
i.
ii.
iii.
export duty imposed on logs: 20% of the gross FOB value at the time of shipment
based on the prevailing rate of exchange
only planted trees are subject to the export duty, since all naturally grown trees are
banned from being exported
CHAPTER 9
A.
B.
TARIFF COMMISSION
a. Chief Officials
i. Chairman
ii. 2 Member Commissioners to be appointed by the President
b. Investigative Functions
i. Administration and effects of tariff and custom laws
ii. Relation between duty rates between raw materials and
finished products
iii. Effects of Ad Valorem and Specific Duties
iv. Questions related to schedules and classification
v. Tariff relations
vi. Importations vs. domestic production
vii. Effects of competition with foreign industries
viii. Investigative Operations
ix. Nature and composition of articles
c. Duties of the Commission
i. Ascertain conversion and production costs in principal centers
and in foreign countries
ii. Select representative articles
iii. Ascertain import costs and selling prices
iv. Ascertain other facts which affect competition
v. Ascertain effects of tariff modifications and import restrictions
vi. Annual reports
d. Commission has access and compulsory process to any document,
summons, testimony, oaths, subpoenas
BUREAU OF CUSTOMS
a. Chief Officials
i. Chief
ii. Assistant Chief
b. Powers:
c.
d.
e.
f.
g.
C.
IMPORTATION IN GENERAL
a. Kinds
i. Freely Importable
ii. Regulated
iii. Prohibited
iv. Conditionally free
b. Importation begins upon entry into jurisdiction and terminated upon
payment of duty
c. Owner of Imported Articles
i. Person to whom the same are consigned
ii. Holder of bill of lading
iii. Consignee
d. Importer is personally liable
e. Government imports also subject to tax
f. Liability limited to the value
g. Transit cargo is an exemption to importation
79
D.
E.
F.
EXAMINATION
a. Conditions for examination
i. If surveyor seal is tampered
ii. Container is damaged
iii. If shipment is covered by alert orders
iv. If the manifest differs from the actual number, weight, measure
b. Appraisers shall ascertain, estimate, determine the value and describe all
the articles
c. Readjustment of Appraisal, Classification, Return upon request in the
form of a timely protest
G.
DELIVERY OF ARTICLES
a. Collector not liable for any defect in the bill of lading
b. No delivery if no bill of lading
c. Cash deposit required for immediate delivery of packages
d. An importer of record may authorize delivery to another
e. Collector shall withhold delivery until the satisfaction of the lien
f. Customs expenses constitute a lien on the articles
g. No delivery until fines, surcharges are paid
H.
a.
b.
c.
I.
J.
ABANDONMENT
a. Kinds
i. Express
ii. Implied
b. Ipso facto deemed property of the government
K.
RECORDS
a. All importers required to keep records for a period of 3 years from the
date of importation
b. Compliance audit
i. Full and free access
ii. BOC has contempt powers
c. Scope
i. Firms selected by computer-aided risk management system
ii. Errors in import declaration detected
iii. Voluntary request to be audited
d. Record to be kept by Customs
i. Articles of Incorporation
ii. Company Structure
iii. Key importations
iv. Privileges
v. Penalties
L.
LIQUIDATION OF DUTIES
80
c.
d.
e.
f.
g.
M. ADMINISTRATIVE PROCEEDINGS
a. Collector shall issue a warrant for the detention of the property
b. Seizure to be reported to the commissioner and auditor and the
corresponding notice to owner/importer
c. Legality of seizure can only be contested by those whose rights have been
impaired
d. Settlement involves the payment of fine or the appraised value
e. Redemption prohibited for prohibited articles
f. Scope shall be limited to subject matter
g. Reliquidation if protest is proper
h. 15 days review by the commissioner
i.
Automatic review if adverse to the government
j.
Confirmation of decision
k. Notice of decision
l.
Reliquidation
m. Government has the right to compulsory acquisition to protect revenues
against undervaluation
2.
3.
4.
5.
6.
7.
8.
9.
N. JUDICIAL PROCEEDINGS
1.
2.
3.
4.
Actions instituted under the authority of the Tariff and Customs Code shall be
brought in the name of the Philippine government and conducted by customs.
Approval of the Commissioner is required in an action for recovery of duties.
Aggrieved party may appeal to the CTA. If no appeal, ruling of the Commissioner is
final and conclusive.
BOC has exclusive jurisdiction over imported goods for enforcement of custom
laws. Seizure and forfeiture is for the Collector and then the Commissioner.
Exclusive original jurisdiction of the Collector pertains only to goods seized
pursuant to the authority under the Tariff and Customs Code.
2.
O. SURCHARGES, FINES AND FORFEITURES
3.
1.
81
4.
The following charges shall be paid from the proceeds of the sale in the order
named:
a. Expenses of appraisal, advertisement and sale
b. Duties except in the case of abandoned and forfeited articles
c. Taxes and other charges
d. Government storage charges
e. Arrastre and private storage charges
f. Freight, lighterage or general average, on the voyage of importation
5. Any surplus remaining after the satisfaction of all unlawful charges shall be
retained by the Collector for 10 days subject to the call of the owner.
6. Perishable articles may be sold at auction, after public notice, not exceeding 3
days.
7. Disposition of articles unfit for use or sale or injurious to public health shall be
ordered by the Collector in such a manner as the case may require.
8. Disposition of contraband:
a. Ammunition and weapons to the AFP
b. Highly dangerous shall be destroyed
c. Contraband coin and bullion to BSP
d. Other contraband of commercial value and capable of legitimate use may
be sold under such restrictions
9. Disposition of articles for want of bidders shall be used by BOC to promote
collection of taxes or channeled to official use of other offices.
10. Dangerous explosives shall be subject to disposition in the discretion of the
Commissioner.
11. Disposition of Smuggled Articles:
a. Written or printed articles inciting treason or rebellion
b. Written or printed articles or other representation of an obscene or
immoral character
c. Articles, instruments, drugs for unlawful abortion
d. Apparatus or devices used in gambling
e. Opium pipes
Q. OFFENSES
1.
2.
3.
4.
82
a.
2.
3.
b.
c.
d.
e.
f.
83
CHAPTER 10
The Court Of Tax Appeals
1.
ACCORDED RESPECT
Its conclusions will not be overturned unless there has been an abuse or improvident
exercise of authority. Such findings can only be disturbed on appeal if substantial
evidence or a showing of gross error or abuse on the part of the Tax Court does not
support them.
2.
3.
Over tax collection where the amount is less than PhP 1,000,000.00
all criminal offense under the NIRC, and Tariff Customs Code, BIR, and
BOC where the amount of taxes and fines is PhP 1,000,000.00
Over tax collection where the amount is less than PhP 1,000,000.00
Presiding Justice
Eight (8) Associate Justices appointed by the President
84
It may sit en banc or in three (3) Divisions, each Division of three (3) Justices each,
including the Presiding Justice, who shall be the Chairperson of the First Division
and the two (2) most Senior Associate Justices shall be served as Chairpersons of
the Second and Third Divisions.
3.1. QUORUM
The presence of five (5) members is necessary to constitute a quorum and the
same number of affirmative vote to render a valid decision.
To administer oaths
To receive evidence
To summon witnesses by subpoena
To require production of papers or documents by subpoena duces tecum
To punish contempt
To promulgate rules and regulations for the conduct of its business
To assess damages against appellant if appeal to it is found to be frivolous or
dilatory
To suspend the collection of the tax pending appeal
To render decisions on cases brought before it
To issue order authorizing distraint of personal property and/or levy of real
property
EXCLUSIVE
ORIGINAL
JURISDICTION
OVER
CRIMINAL
OFFENSES
CRIMINAL CASES:
EXCLUSIVE
APPELLATE
JURISDICTION
o
C. JURISDICTION OF CTA En Banc
The CTA En Banc has exclusive appellate jurisdiction over the following cases:
1.
Decisions, resolutions or orders of the RTC in the exercise of its appellate jurisdiction
over local tax cases and tax collection cases
2.
Decisions of the Central Board of Assessment Appeals in the exercise of its appellate
jurisdiction over cases involving the assessment and taxation of real property
3.
1.
2.
The 30-day period runs from the date the taxpayer receives the appealable
decision and that failure to lodge his appeal:
i. Bars his appeal and renders the questioned decision final and executor
ii. The assessment is considered correct and all that is necessary is for the
Commissioner to enforce the collection of the tax by summary remedies
or judicial action
iii. The taxpayer may only raise defenses of absence of jurisdiction, collusion
between the parties, or fraud
The 30-day period, it is not extendible.
A motion for reconsideration does not toll the 30-day period to appeal to
the CTA.
The Tax Code does not require that the Collector of Internal Revenue to
rule first on a taxpayers request for reconsideration before he can go to
the court for the purpose of collecting the tax assessed.
The Commissioner of Internal Revenue must state that his decision is final
for the 30-day period to appeal to run.
3.
By filing a petition for review provided under Rule 42 of the Rules of CivPro with
the CTA within 30 days from receipt of the decision or ruling or in the case of
inaction, from the expiration of the period fixed by law to act thereon.
With respect to decisions or rulings od the Central Board of Assessment Appeals
and the RTC in the exercise of its appellate jurisdiction, it shall be made by filing a
petition for review provided under rule 42 of the Rules of CivPro with the CTA
which shall hear the case en banc.
All other cases involving rulings, orders or decisions filed with the CTA shall be
raffled to its Divisions.
One adversely affected by such decision of a Division of the CTA may file
a motion for reconsideration before the same Division within 15 days
from notice thereof.
One adversely affected by such decision of a Division of the CTA on a motion for
reconsideration or new trial, may file a petition for review with the CTA en banc.
In criminal cases, the general applicable in regular Courts on matters of
prosecution and appeal shall likewise apply.
One adversely affected by a decision or ruling of a CTA en banc may file with the
SC a verified petition for review on certiorari pursuant to Rule 45 of the Rules of
CivPro.
PERIOD TO APPEAL
In case of assessment by the BIR, the taxpayer shall appeal within 30 days from
receipt of decision or ruling or upon the lapse of 180 days.
4.
86
It is incumbent of the taxpayer to prove there what is the correct and just liability
by a full and fair disclosure of all pertinent data in his possession in appealing the
Collectors assessment that he claims to be erroneous.
Tax assessments by tax examiners are presumed correct and made in good faith
and it is up to the taxpayer to prove otherwise or else, it will not be disturbed.
5.
Self explanatory
6.
A motion to suspend collection of taxes may be filed together with a petition for
review or with the answer, or in a separate motion filed by the interested party at
any stage of the proceedings
7.
The NIRC provides that no court has the authority to grant a writ of injunction to
restrain the collection of any internal revenue tax, fee, or charge imposed by the
code.
If in its opinion the collection of taxes may jeopardize the interest of the
government and/or the taxpayer, the CTA may enjoin the same provided that a
deposit is made in the amount of the disputed assessment or a surety bond is
placed for not more than double the amount at issue.
8.
The CTA shall decide the cases filed before it within 30 days after the same has
been submitted for decision.
Non-compliance with the period does not affect the validity of the decision.
The decision must be in writing stating the facts and the law on which they are
based and signed by the judges who concurred.
Decisions shall be published in the Official Gazette.
If the motion for new trial is anchored on this, it must be established that:
a. The evidence was discovered after the trial
b. Such evidence could not have been discovered and produced at the trial with
reasonable diligence
c. It is material, not merely cumulative, corroborative or impeaching
d. It is of such weight that it will probably change the judgment
11. SECOND MOTION FOR RECONSIDERATION OF A DECISION, FINAL RESOLUTION OR
ORDER FOR NEW TRIAL IS PROHIBITED
DISPOSITION OF CASES
9.
87
NIRC SECTIONS 1 TO 21
6.
Shall employ, assign, or reassign internal revenue officers involved in excise tax
AND
NIRC REMEDIES
establishments or places where articles subject to excise tax are produced or kept:
TITLE I
Provided, That an internal revenue officer assigned to any such establishment shall
in no case stay in his assignment for more than two (2) years, subject to rules and
1.
Assessment and collection of all national internal revenue taxes, fees, and charges.
2.
3.
the Commissioner.
7.
the execution of judgments in all cases decided in its favour by the Court of Tax
Internal Revenue, without change in their official rank and salary, to other or
Shall give effect to and administer the supervisory and police powers conferred to
laws as the exigencies of the service may require: Provided, That internal revenue
Commissioners.
POWERS OF THE CHIEF COMMISSIONER:
1.
The exclusive original jurisdiction to interpret the provisions of the NIRC and other
2.
4.
The power to issue rulings of first impression or to reverse, revoke or modify any
existing ruling of the Bureau;
3.
Revenue subject to the exclusive appellate jurisdiction of the Court of Tax Appeals.
3.
charges, penalties imposed in relation thereto, or other matters arising under the
5.
The power to compromise or abate, under Sec. 204 (A) and (B) of this Code, any
tax liability; and
4.
To prescribe, provide, and distribute to the proper officials the requisite licenses
internal revenue stamps, labels all other forms, certificates, bonds, records,
88
2.
4.
revenue are faithfully executed and complied with, and to aid in the prevention,
To acknowledge the payment of tax if payment was made, expressing the amount
Furnish its appropriate Committee pertinent information including but not limited
to: industry audits, collection performance data, status reports in criminal actions
knowledge, with a statement of all the facts and any evidence sustaining each case.
Submit to the Oversight Committee referred to in Section 290 hereof, through the
Implement laws, policies, plans, programs, rules and regulations of the department
2.
the assessment and collection of all internal revenue taxes, charges and fees.
3.
Issue Letters of authority for the examination of taxpayers within the region;
4.
Provide economical, efficient and effective service to the people in the area;
5.
Coordinate with regional offices or other departments, bureaus and agencies in the
3.
7.
Exercise control and supervision over the officers and employees within the region;
and
8.
Perform such other functions as may be provided by law and as may be delegated
by the Commissioner.
area;
6.
The head of the appropriate government office and his subordinates with respect
to the collection of energy tax; and
The Commissioner of Customs and his subordinates with respect to the collection
of national internal revenue taxes on imported goods;
2.
To examine the efficiency of all officers and employees of the Bureau of Internal
Chairmen of the Committee on Ways and Means of the Senate and House of
1.
To ensure that all laws, and rules and regulations affecting national internal
paid and the particular account for which such payment was made in a form and
3.
1.
3.
To make arrests and seizures for the violation of any penal law, rule or regulation
administered by the Bureau of Internal Revenue.
SOURCES OF REVENUE:
89
1.
Income tax;
d.
2.
3.
Value-added tax;
4.
5.
Excise taxes;
6.
7.
Such other taxes as are or hereafter may be imposed and collected by the Bureau
e.
f.
3.
Other remedies
a.
Forfeiture
of Internal Revenue.
b. Suspension of business operations (Discussed under Tax Administration
and Enforcement)
B.
Judicial Remedies
NIRC REMEDIES
1.
Civil
OUTLINE OF REMEDIES
2.
Criminal
Basic Remedies:
1.
Assessment
2.
Collection
I.
Before payment
A.
OTHER CLASSIFICATIONS
I.
As to procedure
A.
B.
II.
A.
II.
Administrative Remedies
1.
Protest
2.
Compromise
3.
Abatement
After payment
A.
Administrative Remedy
1.
Tax refund
Administrative Remedies
2.
Tax credit
1.
2.
B.
Judicial Remedies
a.
Tax lien
b.
Assessment
c.
90
2.
foundation and hence, arbitrary and capricious) (CIR v. Hantex Trading, G.R. No. L-
3.
upon him for the payment of the tax deficiency stated within a specified period
(CIR v. PASCOR Realty Development Corp., G.R. No. 128315, June 29, 1999).
2.
* A notice of assessment without a due date cannot be considered as a demand but mere
requests for payment (First Gas Power Corp. v. CIR, CTA Case No. 7281, September 24, 2012).
Reason for Assessment: There is a tax due to the government which has not been paid by
the taxpayer either as a delinquency or a deficiency tax. If the tax was properly paid,
General Rule: Assessment is discretionary on the part of the CIR. Mandamus will
not lie for it will constitute judicial encroachment on executive functions.
Exceptions
2.
Deficiency tax liability arising from a tax audit by the BIR (TAX CODE, Sec. 56 [B])
3.
4.
4.
assessments have the same force and effect as that issued by the CIR (Oceanic
Wireless Network v. CIR, G.R. No. 148380, December 9, 2005).
5.
General Rule: All presumptions are in the favour of tax assessments. When an
assessment is made, the same is presumed correct and made in good faith. The
taxpayer has the duty to prove otherwise, and in the absence of proof of any
irregularities in the performance of duties, an assessment duly made by a BIR
examiner and approved by his superior officers will not be disturbed ( CIR v. Wyeth
Suaco Laboratories, Inc., G.R. No. 76281, September 30, 2005).
Exception: The prima facie correctness of a tax assessment does not apply when
Assessments must be directed to the right party (Republic v. De la Rama, G.R. No.
L-21108, November 29, 1966).
Kinds of Assessment:
1.
Self-assessment the tax is assessed by the taxpayer himself (TAX CODE, Sec.
56[A])
Examples:
a.
Income tax
b.
Estate tax
c.
Donors tax
d.
VAT
the CIR comes out with a naked assessment (an assessment that is without
91
2.
Deficiency assessment made by the tax assessor himself where the correct
amount of tax is determined after an examination or investigation is conducted
asks the collector to reconsider or cancel the same because he believes he is not
during a tax period over his reported income for that period is taxable to the extent
liable therefore (St. Stephens Association v. CIR, G.R. No. L-11238, August 21,
1958).
4.
4.
5.
Unit and Value Method the determination or verification of gross receipts may
without the benefit of a complete or partial audit, in light of the officers belief that
6.
Third Party Information or Access to Records Method third party contacts are
the sources of information.
7.
Assessment Process
Summary:
1.
2.
The following are the general (constructive) methods developed by the BIR for reconstructing
3.
a taxpayers income where the taxpayer keeps no or inadequate records or where there is a
4.
Reply to PAN
5.
1.
2.
Net Worth Method method of reconstructing income based on the theory that if
the taxpayers net worth has increased in a given year in an amount larger than his
reported income, he had understated his income for that year.
3.
Bank Deposit Method the bank records of the taxpayer are analyzed and the
Revenue Officer estimates income on the basis of the total bank deposits after
eliminating non-income items.
92
Audit will continue without the need to revalidate the LA, but the officer concerned shall be
* The issuance of a Notice of Informal Conference under RR No. 12-99 before issuing a PAN
subjected to administrative sanctions (RMO No, 23, 2009; RMO No. 44-2010).
is already dispensed with pursuant to RR No, 18-2013 issued on November 28, 2013.
3.
PAN is issued to the taxpayer informing him of the findings of the Revenue Officer if after
review and evaluation of the taxpayers records, there is sufficient basis to assess the
taxpayer for any deficiency taxes (RR No. 18-2013, Sec 3.1.1).
* Prior to the issuance of PAN, the taxpayer may be allowed to make voluntary payments
The taxpayer has fifteen (15) days from the date of receipt of PAN to reply (RR No. 18-2013,
Sec. 3.1.1).
Requisites of a Valid Reply
1.
Must be made within the 15-day period (RR No. 18-2013, Sec. 3.1.1).
2.
through registered mail with return card, with the office of the duly authorized
representatives of the CIR who signed the PAN (RMC No, 11-2014; RMC No. 39-
2013).
The assessment was conducted within the scope of authority given by a valid LA
Must be in writing and contain the facts and the law on which the proposed
The taxpayer shall be considered in default and a FLD/FAN will be issued (TAX
CODE, Sec. 228. par. 3).
2.
Taxpayer can still file a protest to the FLD/FAN (TAX CODE, Sec. 228, par. 4).
assessment is based (TAX CODE, Sec. 228, par. 2; RR. No. 18-2013, Sec. 3.1.1).
4.
Must be issued by the CIR or his duly authorized representative. They are:
a.
b.
ACIR-LTS
c.
ACIR-Enforcement and Advocacy Service (RR. No, 18-2013, Sec. 3.1.1; RMC No.
11-2014)
That must be issued within the prescriptive period to make the assessment.
2.
That must be protested by the taxpayer otherwise the assessment shall become
Reason: To give the taxpayer the opportunity to refute the findings of the examiner and give
a more accurate and detailed explanation regarding the assessment (Sony Philippines v. CIR,
Must be issued after issuance of a valid Pan, except for those instances where a
Pan is not required (TAX CODE, Sec. 228, par. 1 & 2; RR No. 18-2013, Sec. 3.1.2).
93
2.
3.
Must be issued by the CIR or his duly Authorized representative (RR No. 18-2013,
Reason: A PAN preparatory to the issuance of the FAN is not legally speaking an assessment
Must be served to the taxpayer before the lapse of the prescriptive period for
making assessment (TAX CODE, Sec. 203).
5.
3.
Within the 15 days after the filing of the response to the PAN (RR No. 18-2013, Sec.
3.1.1).
4.
Must be in writing and contain the facts and the law on which the assessment is
After/Beyond the 15-day period after the filing of the response to PAN (RMC No.
11-2014).
The assessment was conducted within the scope of authority given by a valid LA
(CIR v. Sony Phils., Inc., G.R. No. 178697, November 17, 2010).
* Issuance of the FLD/FAN beyond 15 days from the filing of the response to the PAN shall
not render it invalid. The non-observance of the 15-day period, however, shall constitute
an administrative infraction and the revenue officers who caused the delay shall be
General Rule: Fan can be issued only after a PAN was issued. This is part of the requirements
of due process and failure to comply therewith would render the assessment void (CIR v.
Metro Superama, Inc., G.R. No. 185371, December 8, 2010; SVI Information v. CIR, CTA Case
Exceptions: In the following instances where PAN is not required, A FLD/FAN shall be issued
outright:
After the issuance of the PAN, the FAN may be issued in any of the following circumstances:
1.
2.
1.
After the lapse of the 15-day period to respond to the PAN without the taxpayer
When the finding for any deficiency tax is the result of mathematical error in the
computation of tax as appearing on the face of the return.
2.
When the excise tax due on excisable items has not been paid.
Before the lapse of the 15-day period to respond to the PAN and the taxpayer has
3.
When a discrepancy has been determined between the tax withheld and the
not yet submitted a reply to PAN (Oakwood Management Services v. CIR, CTA Case
No. 7989, August 8, 2013).
When an article locally purchased or imported by an exempt person, such as, but
not limited to, vehicles, capital equipment, machineries and spare parts, has been
sold, traded or transferred to a non-exempt person.
* The issuance of the FAN before the lapse of the 15-day period for the taxpayer to file a
reply to the PAN inflicts no prejudice on the taxpayer as long as the taxpayer is properly
served the FAN and is able to intelligently contest the FAN by filing a protest within the
period allowed by law.
5.
When the taxpayer has opted to claim a refund or tax credit of excess creditable
withholding tax for a taxable period was determined to have carried over and
automatically applied the same amount claimed against the estimated tax liabilities
for the taxable quarter or quarters of the succeeding taxable year (RR No. 18-2013,
Sec. 3.1.2).
94
Service of FLD/FAN
A.
Modes of Service (RR. No. 18-2013, Sec. 3.1.6; RMC No. 11-2014)
1.
they may personally observe and attest to such fact of refusal. The
he may be found.
Disinterested witness persons of legal age other than employees of the BIR.
3.
a.
Notice may be left at the partys registered address with his clerk or
b.
c.
The server shall accomplish the bottom portion of the notice and make a written report
under oath setting forth the manner, place, and date of service, the name of the
person/barangay official/professional courier service who received the same and other
relevant information.
therein
d.
* Service to the tax agent/practitioner, who is appointed by the taxpayer under the
e.
The aforementioned modes of service are also applicable to the service of the PAN and
the FDDA.
witnesses.
The notice shall first be served to the taxpayers registered address before the same
may be served to the taxpayers known address or in the alternative, may be served to
other place but refuses to receive the notice, the revenue officer
the taxpayers registered and know address simultaneously (RMC No. 11-2014).
95
B.
The defence may be raised even for the first time on appeal when it is apparent on
the record that the assessment has already prescribed (CIR v. First Sumiden Realty,
The assessment is deemed to have been made on the date when the demand letter or
notice of assessment is released, mailed, or sent, even though the same is actually
received by the taxpayer after the expiration of the prescriptive period. (Basilan Estates
v. CIR, G.R. No. L-22492, September 5, 1967).
General Rule: When a mail matter is sent by registered mail, there exists a presumption
that it was received in the regular course of mail (Republic v. CA, G.R. No. L-38540, April
30, 1987).
For the presumption to apply, the following facts must be proven:
1.
2.
Letter was mailed (Barcelon Roxas Securities, Inc. V. CIR, G.R. No. 157064,
August 7, 2006).
Proof of Mailing
Inc., CTA EB No. 975 re: CTA Case No. 8151, January 7, 2014).
2.
The registry receipt issued by the post office or the official receipt issued by the
professional courier service containing sufficiently identifiable details of the transaction
shall constitute sufficient proof of mailing and shall be attached to the case docket (RMC
The CIR has the authority to make subsequent assessments or modify or revise the original
assessment to collect additional sums covered by the original assessment as long as the
BIR record book is not sufficient (Barcelon Roxas Securities, Inc. V. CIR, G.R. No. 157064,
modification or revision is done within the prescriptive period for making assessments, and
August 7, 2006).
even while the appeal of the taxpayer from the original assessment is still pending in the CTA,
Exception: When there is a direct denial of the receipt. The burden is shifted to the BIR
so as to avoid multiplicity of suits (CIR v. Batangas Transportation Co., G.R. No. L-9692,
to prove the letter mailed was received by the addressee. (Republic v. CA, G.R. No. L-
January 6, 1958).
38540, April 30, 1987; Barcelon Roxas Securities, Inc. V. CIR, G.R. No. 157064, August 7,
Collection
2006).
It is the actual effort exerted by the government to effect the exaction of what is due from
C.
1.
Prescription as a Defence
An FLD/FAN must be served to the taxpayer within the prescriptive period to make
General Rule: Yes, No proceeding in court without assessment for the collection of such
96
A warrant of distraint and/or levy without issuance of a FAN is void (Gold Harvest Global
1.
payable.
Exception: A proceeding in court for the collection of tax may be filed without prior
2.
2.
With respect to personal property from the time the tax became due and
With respect to real property from the time of registration with the Registry
of Deeds.
* It is settled that the claim of the government predicated on a tax lien is superior to the
When does tax become collectible:
claim of a private litigant predicated on a judgement. The tax lien attaches not only from
The government can collect when the assessment becomes final and executor for:
the service of the warrant of distraint but from the time the tax became due and payable
1.
2.
3.
Failure to appeal an adverse decision of the court within the prescribed period.
ADMINISTRATIVE REMEDIES
notice of such lien shall be filed by the CIR in the office of the Register of Deeds of the
province or city where the property of the taxpayer is situated (TAX CODE, Sec. 219).
Tax Lien
Kinds of Distraint:
in default of the payment of taxes (HSBC v. Rafferty, G.R. No. L-13188, November
15, 1918).
1.
Actual Distraint
Resorted to when at the time required for payment, a person fails to pay his
delinquent tax obligation (NIRC, Sec. 207[A]).
It is the actual seizure and taking possession of personal property of the taxpayer.
Delinquent Taxpayer
When a taxpayer neglects or refuses to pay his internal revenue tax liability after
a.
demand, the amount so demanded shall be a lien in favour of the government from
the time the assessment was made by the Commissioner until paid with interest,
Self-assessed tax per return filed on the prescribed date was not paid at all or
partially paid.
b.
penalties, and costs that may accrue in addition thereto upon all property and
rights to property belonging to the taxpayer (TAX CODE, Sec. 219).
When does the lien in favour of the Government arise:
97
1.
4.
b.
c.
5.
In the case of stocks and other securities, the officer making the sale shall
execute a bill of sale, which shall be delivered to the buyer and to the
other securities. Upon receipt of the copy of the bill of sale, an entry of
2.
6.
Any residue over and above what is required to pay the entire claim
Officer and to the Revenue Regional Director within 10 days from receipt
of warrant.
The CIR or his duly authorized representative has the power to lift the
and does not include services of the Revenue Officer (TAX CODE, Sec.
210)
1.
Notice shall specify the time and place of sale and the articles distrained.
Right of Pre-emption: If at any time prior to the consummation of the sale all
2.
The time of sale shall not be less than 20 days after the notice to the
proper charges are paid to the officer conducting the sale, all the distrained
The posting shall be made in not less than two public places in the city or
municipality where the distraint is made. One place for the posting of
Purchase by the Government at Sale upon Distraint (TAX CODE, Sec. 212)
a.
b.
Very much less than the actual market value of the property offered for sale.
3.
e.
1.
d.
Sale must be held at the time and place stated at the notice.
2.
3.
If the sale is conducted by the officer, rather than the officer serving the
warrant, it must be held at a public auction and the property shall be sold
to the highest bidder for cash.
The CIR or his deputies may purchase on behalf of the National Government for the
amount of the taxes, penalties, and cost due thereon.
Property so purchased may be resold by the CIR or his deputy; the net proceeds
shall be remitted to the National Treasury and accounted as internal revenue.
Distraint of Intangible Properties
Intangible properties which can be the subject of distraint are:
98
a.
b.
upon the taxpayer and upon the president, manager, treasurer, or other
c.
d.
Intending to perform any act tending to obstruct the proceedings for collecting the
the same.
b.
Debts and credits by leaving with the person owning the debts or having in
his possession or under his control such credits, or his agent, a copy of the
warrant of distraint.
c.
tax due or which may be due from him (TAX CODE, Sec. 206)
Constructive distraint is effected:
a.
property to sign a receipt covering the property distrained and obligate himself to
preserve the same intact and unaltered and not to dispose of the same in any
Punishment in case of violation: Upon the conviction, a fine of not less than twice the
value of the property so sold, encumbered, or disposed of but not less than P 5,000, or
suffer imprisonment of not less than two years and one day but not more than four
years, or both (TAX CODE, Sec. 276)
b.
In case the person refuse or fails to sign the receipt, the Revenue Officer effecting
the constructive distraint shall prepare a list of the property and in the presence of
two witnesses, leave a copy thereof in the premises of the property where the
property distrained is located (TAX CODE, Sec. 206).
54 s. 1956)
2. Constructive Distraint
Issued where no actual tax delinquency of the taxpayer is necessary before the same is
resorted to by the government (ABAN, p. 238)
It is a preventive remedy to forestall possible dissipation of the taxpayers assets when
delinquency takes place.
It is issued in the following cases when the taxpayer is:
a.
99
Real property may be levied upon before, simultaneously, or after the distraint of
personal property belonging to the delinquent taxpayer (TAX CODE, Sec. 207[B]);
and the remedy of distraint and levy may be repeated if necessary if the full
In case the warrant of levy is not issued before, or simultaneously with the warrant
of distraint and the personal property of the taxpayer is not sufficient to satisfy his
The advertisement shall be made within 20 days after the levy, and the same
delinquency, the CIR or his authorized representative shall, within 30 days after the
execution of the distraint, proceed with the levy on the taxpayers real property
a. Posting a notice at the main entrance of the municipal building or city hall
b.
c.
This certificate shall operate with the force and effect of a legal execution
If he does not exercise it, the sale shall proceed and shall be held either at the
2.
sold, as the officer conducting the proceedings shall determine and as the
a.
the taxes, penalties, and interest at any time before the day fixed for the sale.
located.
If the proceeds of the sale exceed the claim and cost of sale, the excess shall
his agent or the manager of the business in respect to which the liability
b.
Advertisement of Sale
5.
100
The one year period for redemption begins from the registration of the deed
Within one year from forfeiture, the taxpayer may redeem his property.
The CIR shall have charge of any real estate obtained by the Government in
How made: Upon payment of the taxes, penalties, and interest thereon from
the date of the delinquency to the date of sale, together with interest on
purchase price at 15% per annum from the date of sale to the date of
a.
redemption.
Sell and dispose of the same at a public auction upon giving of not less
than 20 days notice.
The owner shall not be deprived of the possession of the property and shall be
b.
entitled to the rents and other income thereof until the expiration of the time
Dispose of the same at a private sale with the approval of the Secretary
of Finance (TAX CODE, Sec. 216)
c.
Such payment shall entitle the taxpayer to the delivery of the certificate
issued to the purchaser and a certificate from the RDO that he has
redeemed the property.
b.
* The remedies of distraint and levy as well as collection by civil and criminal action may, in
the discretion of the CIR, be pursued singly or independently of each other, or all of them
simultaneously.
The RDO shall pay the purchaser the amount by which such property has
Both distraint and levy are summary remedies and cannot be availed of
been redeemed and said property shall be free from lien of such taxes
and penalties.
6.
Real property placed under levy may be sold at public auction for less than its
market value (NIRC, Sec. 215) since the taxpayer is given the right to redeem
The remedy of distraint and levy may be repeated if necessary until the full
(NIRC, Sec. 214). With respect to distrained personal property the rule is
amount of the tax delinquency including all expenses is collected from the
b.
The highest bid is for an amount insufficient to pay the taxes, penalties,
101
No court shall have the authority to grant an injunction to restrain the collection of any
national internal revenue tax, fee or charge imposed (TAX CODE, Sec. 218), except when in
1.
2.
Shall thereafter require the taxpayer to deposit the amount claimed or to file a
2.
surety bond for not more than double the amount with the court (R.A. 922, Sec. 9).
Sold or destroyed in cases of all other articles subject to excise tax, which have
been manufactured or removed in violation of NIRC, dies for printing or making of
internal revenue stamps and labels which are in imitation of or purport to be lawful
Seizure v. Forfeiture
In seizure for the enforcement of tax lien, the residue, after deducting the tax liability and
expenses, are returned to the taxpayer. (BPI v. Trinidad, G.R. No. 16014, October 4, 1941)
In forfeiture, all the proceeds of the sale will go to the coffers of the government (U.S. v.
* Forfeited property shall not be destroyed until at least 20 days after seizure.
3, 1938).
2.
All chattels and removable fixtures of any sort, used in the unlicensed production
2.
Dies used for printing or making of any imitation revenue stamp, label or tag which
forfeited property.
268[B])
3.
Liquor or tobacco shipped under a false name or brand (TAX CODE, Sec. 262)
or proceeding, civil or criminal, as the case may require (TAX CODE, Sec. 224)
JUDICIAL REMEDIES
This remedy is different from the provision directing forfeiture of real property in
Civil Action
certain cases in the remedy of levy under Sec. 215. Judicial intervention, which is
For tax remedy purposes, these are actions instituted by the government to collect internal
required for forfeiture of real property under Sec. 224, is not required under Sec. 215
revenue taxes including the filing by the government of claims against the deceased taxpayer
since the taxpayer has the right of redemption (DE LEON, NIRC 2, pp. 515-516).
102
with the probate court. The government can collect when the assessment has become final
1.
and executor.
2.
Failure to file a return, supply correct and accurate information, pay tax, withhold
and remit tax and refund excess taxes withheld on compensation (TAX CODE, Sec.
By filing a civil case for collection of a sum of money with the proper regular court
255).
By filing an answer to the petition for review filed by the taxpayer with the CTA (
Fernandez Hermanos, Inc. v. CIR, G.R. No. L-21551, September 30, 1969).
Criminal action in violation of the NIRC also constitutes a collection method because the
judgement in the criminal case not only imposes the penalty but shall also order the payment
of the taxes subject of the criminal case as finally decide by the CIR (TAX CODE, Sec. 205).
Can the BIR file a civil action for the collection pending the decision of the administrative
Any person convicted of a crime penalized by the NIRC shall, in addition to being liable for
protest?
the payment of the tax, be subject to the penalties imposed herein (TAX CODE, Sec. 253[a]).
Yes. The request for reinvestigation and reconsideration was in effect considered denied by
the CIR when the latter filed a civil suit for collection of deficiency income (CIR v. Union
Letters of referral/complaints filed by the CIR that states, I hereby recommend the
prosecution of the following for violation of the National Internal Revenue Code, as
1.
Civil actions shall be brought in the name of the Government of the Philippines.
amended constitute approval of filing of cases in court (People v. Tan, G.R. No. 144707, July
2.
13, 2004).
3.
No civil or criminal action for the recovery of taxes shall be filed in court without
1.
Assessment is not necessary before filing a criminal action and criminal action
may be filed during the pendency of an administrative protest in the BIR. It is not
a requirement for the filing thereof that there be a precise computation and
assessment of the tax, since what is involved in the criminal action is not the
collection of the tax but a criminal prosecution for the violation of the NIRC,
provided however, that there is prima facie showing of a wilful attempt to evade
taxes or failure to file the required return (Ungab v. Cusi. G.R. Nos. L-41919, May
30, 1980 in relation to CIR v. CA, G.R. No. 119322, June 4, 1996; CIR v. Pascor Realty
Development Corp., G.R. No. 128315, June 29, 1999).
Exception: Before the tax liabilities of Fortune are first finally determined, it
cannot be correctly asserted that private respondents have wilfully attempted to
evade or defeat taxes sought to be collected from Fortune. In plain words, before
103
2.
one is prosecuted for wilful attempt to evade or defeat any tax under Sec's. 253
The recommendation by the CIR to the DOJ for the filing of a criminal complaint
and 255 of the NIRC, the fact that a tax is due must first be proved (CIR v. CA and
a.
It does not necessarily result in the exoneration of said taxpayer from his civil
b.
There was no demand made to the taxpayer to pay the tax liability, nor a
Reason: The duty to pay is imposed by statute prior to and independent of any
c.
The letter was never mailed or sent to the taxpayer by the CIR.
consequence of the felonious acts charged nor is it a mere civil liability derived
the filing of the criminal information that the taxpayer had violated the penal
from a crime (Republic v. Patanao, G.R. No. L-14142, May 30, 1961).
3.
It does not extinguish the taxpayers criminal liability (People v. Tierra, G.R. Nos. L17177-80, December 28, 1964).
4.
provisions of the tax code (Adamson v. CA, G.R. No. 1290935, May 21, 2009).
No subsidiary imprisonment
In case of insolvency on the part of the taxpayer, subsidiary imprisonment cannot
7.
Criminal action may be filed despite the lapse of the period to file a civil action
for collection of taxes
When the civil action arising from tax delinquency has prescribed, the BIR has only
STATUTE OF LIMITATIONS
Assessment
General Rule: Within three years after the last day prescribed by the law for the filing of the
return or from the date of actual filing the return, whichever comes later (ordinary or normal
assessment) (TAX CODE, Sec. 203).
five years from assessment within which to collect the tax through criminal action
in which case it would prescribe after the lapse of five years from discovery of
crime and institution of proceedings (TAX CODE, Sec. 281).
6.
Exceptions:
1.
An affidavit, which was executed by revenue officers stating the tax liabilities of a
taxpayer and attached to a criminal complaint for tax evasion, cannot be deemed
as assessment (CIR v. Pascor Realty. G.R. No. 1218315, June 29, 1999).
In case of false or fraudulent return with intent to evade tax or failure to file a
2.
104
* The prescriptive period for making assessment shall also apply when the Government
Requisites in order that a return may be considered filed for purposes of starting the
makes an erroneous refund of internal revenue taxes. The prescriptive period is not the six-
year period of limitation under Art. 1145 of the Civil Code on quasi-contracts (ABAN, p. 296)
1.
because the demand of the Government on the taxpayer to pay the erroneously refunded
tax is in effect an assessment of deficiency tax (Guaga Electric v. CIR, G.R. No. L-23611, April
The return must be valid it must comply substantially with the requirements of
the law.
2.
The return must be appropriate it is a return for the particular tax required by
24, 1967).
law. Thus, an income tax return cannot be considered as the equivalent of the Vat
or percentage return (Butuan Sawmill, Inc. v. CTA, G.R. No. L-20601, February 28,
For the purpose of safeguarding taxpayers from any unreasonable examination, investigation
1966).
or assessment, our tax law provides a statute of limitations in the collection of taxes. Thus,
the law on prescription, being a remedial measure, should be liberally construed in order to
afford such protection. As a corollary, the exceptions to the law on prescription should
perforce be strictly construed (CIR v. B.F. Goodrich Phils., Inc. G.R. No. 104171, February 24,
1999).
The law of prescription should be interpreted in a way conducive to bringing about the
beneficent purpose of affording protection to the taxpayer within the contemplation of the
2.
If the amendment was superficial, the counting of the prescriptive period is still the
original period (CIR v. Phoenix Assurance, G.R. No. L-19727, May 20, 1965).
Commission which recommended the approval of the law (Republic v. Ablaza, G.R. No. L-
showing a net loss to show more losses (CIR v. Phoenix Assurance, G.R. No. L-19727,
Both Art. 13 of the Civil Code and the Administrative Code deal the computation of legal
Reason: To prevent taxpayers from evading the payment of taxes by simply reporting in
periods. The Administrative Code being the more recent law, it shall govern the computation
their original return heavy losses and amending the same more years later when the CIR
of legal periods under the principle Lex posterior derogate priori (CIR v. Primetown Property
has lost his authority to assess the proper tax thereunder. The object of the NIRC is to
impose taxes for the needs of the Government and not to enhance tax avoidance to its
Burden of proof that a return was filed to apply the three year prescriptive period
prejudice (CIR v. Phoenix Assurance, G.R. No. L-19727, May 20, 1965).
It is incumbent on the taxpayer to prove that a return had been filed by him in order that the
three-year prescriptive period may apply (Republic v. Marsman Dev't., G.R. No. L-18956, April
determine the proper amount of tax to be assessed, then the prescriptive period for the
27, 1972) because the prescription of the Governments right to assess taxes is an affirmative
assessment starts from the filing of the original return (A.L. Ammen Transportation v.
defence (Taligaman Lumber v. CIR, G.R. No. L-15716, March 31, 1962).
105
6.
The CIR merely relied upon an alleged substantial under declaration of income tax
resulting from his own computation.
7.
to warrant the 10-year prescriptive period (Samar-I Electric Cooperative, Inc. v CIR, CTA
Mere understatement of gross earnings does not by itself prove fraud (Yutivo Sons
v. CTA, G.R. No. L-13203, January 28, 1961).
return is the same as if no return was filed (CIR v. Gonzales, G.R. No, L-19495,
Such fact in a fraud assessment which has already become final and executor shall be
judicially taken cognizance of in a civil or criminal action for the collection thereof (TAX
CODE, Sec. 222[a]).
A deficient return prevented the CIR from computing taxes due. Such defective
2.
Failure to report income in returns which were clearly not exempted from tax. The
court did not treat this as a simple omission as the same involved substantial sums
(Standard Chartered Bank v. CIR, CTA EB Case No. 731, September 13, 2012).
The following instances negate the existence of fraud and preclude the application of
the 10-year prescriptive period:
1.
The CIR failed to impute fraud in the assessment notice or demand for payment.
2.
The CIR failed to allege fraud in his answer to the taxpayers petition for review
Requisites:
3.
1.
The fact that the CTA raised the question of fraud only for the first time in his
2.
It must specify a definite agreed date between the BIR and the taxpayer within
memorandum which was filed with the CTA after he had rested his case (Taligaman
Lumber v. CIR, G.R. No. L-15716, March 31, 1962).
4.
The fact that the CIR did not include fraud penalty in his deficiency assessment
which was issued after the filing of the return as an indication that he himself did
officials.
not believe that there was fraud (Gomez v. Domingo, CTA Case no, 1168, February
b.
15, 1964).
5.
In an assessment, where the BIR appeared not so sure as to the real amount of
4.
The CIR or the revenue official authorized by him must sign the waiver indicating
the taxpayers net income, as where the BIR arrived at three highly different
computations (Republic v. Lim de Yu, G.R. No. L-17438, April 30, 1964).
a.
106
b.
5.
Before signing the waiver, the CIR or the revenue official authorized must
have paid the reduced amount of taxes in the revised assessments (RCBC v. CIR, G.R. No.
make sure that the waiver is in the prescribed form, duly notarized, and
Collection
Both the date of execution by the taxpayer and the date of acceptance by the BIR
should be made before the expiration of the period of prescription or before the
6.
7.
The following rules shall govern the prescriptive period of collection of taxes:
1.
For both normal or ordinary assessment (one with the three-year period to
assess) and Abnormal or extraordinary assessment (one with the 10-year period
to assess) Five years from the time the assessment was made.
a.
2.
b.
c.
The Government may collect without prior assessment in the same instances under
The fact of receipt by the taxpayer of his/her copy must be indicated in the original
copy to show that the taxpayer was notified of the acceptance of the BIR and the
perfection of the agreement.
8.
Grounds for Suspension of the Running of the Statute of Limitations to Assess and Collect:
9.
It must not reduce but extend the period allowed for the government to assess and
collect taxes (RMO No, 20-90; RDAO No. 05-01; RMC No. 06-05; Republic v. Lopez,
1.
When the CIR is prohibited from making the assessment or beginning the distraint
or levy or a proceeding in court, and for sixty days thereafter.
2.
When the taxpayer requests for reinvestigation and is granted by the CIR.
Requisites:
* The waiver of the statute of limitations does not mean that the taxpayer relinquishes its
a.
right to invoked prescription (Philippine Journalists, Inc. v. CIR, G.R. No. 162852, December
16, 2004).
Failure to comply with all the requirements stated above renders the waiver invalid. As
such, the prescriptive period shall not be extended.
The request for reinvestigation must be granted or acted upon by the CIR (BPI
v. CIR, G.R. No. 174942, March 7, 2008).
The taxpayer may, however, be stopped to question the validity of the waiver as when he
made partial payment of the revised assessments issued within the extended period as
provided in the questioned waivers. The Court held that had he believed the waivers were
* The burden of proof that the request for reinvestigation had been actually granted shall
invalid and the assessments were issued beyond the prescriptive period, then it should not
be on the CIR. Such grant may be expressed in its communication with the taxpayer or
107
implied from the action of the CIR or his authorized representative in response to the
request for reinvestigation (BPI v. CIR, G.R. No. 174942, March 7, 2008).
3.
When the taxpayer cannot be located in the address given by him in the return,
1.
2.
When the offender is absent from the Philippines (TAX CODE, Sec. 281).
When the warrant of distraint or levy is duly served, and no property is located.
5.
* In No. 1, the period shall run again if the proceedings are dismissed for reasons not
constituting jeopardy (TAX CODE, Sec. 281).
Criminal Cases
All violations of any provision of this Code shall prescribe after five years (NIRC, Sec. 281).
From the day of the commission of the violation of the law (TAX CODE, Sec. 281).
The five-year prescriptive period for the violation of any provision of the Tax Code
should be reckoned from the date of the final notice and demand for payment of
the deficiency taxes that the cause of action on the part of the BIR accrued. This is
because prior to the receipt of the letter-assessment, no violation has yet been
committed (DIZON, citing Lim, Sr. V. CA, G.R. Nos. 48134-37. October 18, 1990).
2.
QUESTION: Can the taxpayer institute a direct action before a court of justice to protest the
assessment?
ANSWER: No. The assessment may be protested administratively by filing a request for
reconsideration or reinvestigation within 30 days from receipt of assessment (Sec. 228 (4)
NIRC).
QUESTION: What about the claim for refund?
ANSWER: No. No suit or proceeding shall be maintained in any court for the recovery of any
national internal revenue tax UNTIL a claim for refund or credit has been filed with the
Commissioner(Sec. 229 NIRC).
I.
Before Payment
If the same be not known at the time, from the discovery thereof and the
institution of judicial proceedings for its investigation and punishment (TAX CODE,
Sec. 281).
A.
Administrative Remedies
1.
108
109
Judicial Remedies
(1) Appeal to the Court of Tax Appeals (Division), within 30 days from
receipt of decision on the protest or from the lapse of 180 days due
to inaction of the Commissioner otherwise it will be final and
executory;
(2) Appeal the CTA en banc, the party adversely affected by the CTA
Divisions decision may file one (1) motion for reconsideration/new
trial within 15 days from receipt of the decision with the CTA
division. If the MR is denied, file a petition for review with the CTA
en banc;
(3) Appeal to the Supreme Court, within 16 days from the receipt of the
decision of the CTA;
(4) By way of special civil action, petition for certiorari, prohibition and
mandamus to the Supreme Court in case of grave abuse of
discretion, lack of jurisdiction or excess of jurisdiction;
(5) Action to contest forfeiture of chattel, at any time before the sale or
destruction thereof, to recover the same, and upon giving proper
bond, enjoin the sale; or after the sale and within 6 months, an
action to recover the net proceeds realized at the sale (Sec. 231
NIRC);
(6) Action for damages against a revenue officer by reason of any act
done in the performance of official duty (Sec. 227 NIRC);
(7) Injunction, to be issued by the CTA if collection may jeopardize the
interest of the government and/or the taxpayer (R.A. 1125 as
amended by R.A. 9282).
II.
After Payment
A.
Grounds for filing a claim for tax refund or tax credit are the
following: (1) tax is collected ERRONEOUSLY or ILLEGALLY; (2) penalty is
collected WITHOUT AUTHORITY; (3) sum collected is EXCESSIVE or in any
manner WRONGFULLY COLLECTED.
Requisites of tax refund or tax credit are the following: (1) the
claim must be in WRITING (mandatory); (2) it must be filed with the
Commissioner within 2 years after the payment of tax or penalty; (3) the
taxpayer must show PROOF OF PAYMENT.
Recovery of tax erroneously or illegally collected (Sec. 229
NIRC): No suit or proceeding shall be maintained in any court for the
recovery of any national internal revenue tax UNTIL a claim for refund or
credit has been filed with the Commissioner; but the suit or proceeding
may be maintained whether or not such tax, penalty or sum has been
paid under protest or duress. Even without a written claim, the CIR may
refund or credit tax where on the face of the return upon which payment
was made, such payment appears to have been erroneously paid.
Rule on Commencement of Two (2) Year Period:
(1) Commissioner vs. Victorias Milling, G.R. No. L-24108, January 31,
1968;tax sought to be refunded is illegally or erroneously collected
from the date the tax was paid.
Sec. 306 and 309 of NIRC were intended to govern all
kinds of refunds of internal revenue taxes those
taxes imposed and collected pursuant to the NIRC.
Thus, this Court stated that "this provision" referring
to Sec. 306, "which is mandatory, is not subject to
qualification, and hence, it applies regardless of the
conditions under which payment has been made."
And to hold that the instant claim for refund of a
specific tax, an internal revenue tax imposed in Sec.
110
(2) Collector vs. Prieto, G.R. No. L-11976, August 29, 1961;tax is paid
only in installments or only in part from the date the last or final
installment or payment.
(3) Union Garment vs. Collector, CTA Case No. 416, November 17,
1958; taxpayer merely made a deposit counted from the
conversion of the deposit to payment.
(4) Gibbs vs. Commissioner, G.R. No. L-17406, November 29, 1965; tax
has been withheld from source counted from the date it falls due
at the end of the taxable year.
(5) ACCRA Investments vs. CA, G.R. No. 96322, December 20, 1991;
end of taxably year vs. date of the filing of the final adjusted return
from the date when the final adjusted return was filed.
(6) Commissioner vs. TMX Sales, G.R. No. 83736, January 15, 1992;
date when quarterly income tax was paid vs. date when final
adjusted return was filed from the date when final adjusted return
was filed.
(7) Commissioner vs. CA, G.R. No. 117254, January 21, 1999; date
when the final adjustment return was actually filed vs. last day when
the adjustment return could still be filed from the date the final
adjustment return was actually filed.
(8) Commissioner vs. Don Pedro Central Azucarera, G.R. No. L-28467,
February 28, 1973;tax was not erroneously or illegally paid but the
taxpayer became entitled to refund because of supervening
circumstances from the date the taxpayer becomes entitled to
refund and not from the date of payment.
QUESTION: Does the filing of the claim for refund or credit suspend the
running of the 2-year prescriptive period?
111
ANSWER: No, hence, the taxpayer should not wait for the decision of the
CIR. Both the claim for refund and subsequent appeal must be filed
within the 2-year period.
QUESTION: When is there waiver of the prescription in an action for
refund?
ANSWER: If the government failed to plead prescription in a motion to
dismiss or as a defence in its answer to the petition for review. Exception:
taxpayer amends his petition for review alleging therein a new cause of
action and the government pleads prescription in his answer to the
amended petition for review.
112