Professional Documents
Culture Documents
On Non-resident citizen, they can only be taxed on their income derived from
the sources
within tax situs is the place /source of income.
Taxpayer Sources
1. RC I/O (Sec. 23 [A])
2. NRC I (Sec. 23 [B])
3. OCW I (Sec. 23 [C])
4. ALIEN I (Sec. 23 [D])
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4.1 NRA-ETB
4.2 NRA-NETB
4.3 ALIEN ERA-MNC
4.4 ALIEN OBUs
4.5 ALIEN PSCS
5. Domestic Corp. I (Sec. 23 [E])
6. Foreign Corp-RFC/NRFC I (Sec. 23 [F])
1) A resident citizen is taxable on all income derived from sources within
and without the
Philippines.
2) A non-resident citizen is taxable only on income derived from sources
within the
Philippines.
3) An overseas contract worker is taxable only on income from sources
within the
Philippines; a seaman who is a citizen of the Philippines and who receives
compensation
for services rendered abroad as a member of the complement of a vessel
engaged
exclusively in the international trade shall be treated as an overseas contract
worker.
4) An alien individual, whether a resident or not of the Philippines, is
taxable only on
income derived from sources within the Philippines.
5) A domestic corporation is taxable on all income derived from sources
within and
without the Philippines; and
6] A foreign corporation, whether engaged or not in trade or business in
the Philippines, is
taxable only on income derived from sources within the Philippines.
Income Taxation may be grouped into:
1) individual income taxation
2) corporate income taxation
Q. What are the basic features of individual taxation? (S.P. F. E. M.)
A.
1) Individual income taxation adopted the Schedular system of taxation
Example of income derived from both capital and labor >>> Income of an
independent
contractor. The independent contractor provides work force, provides capital
and derives income
from such capital.
* In determining the profit from the sale of property, you should always be
guided by this
formula:
Amount Received Or Realized LESS Cost of Property = PROFIT
TAXABLE INCOME (the old term is Net Income) means all pertinent
items of gross
income specified in the Tax Code less the deductions and/or personal and
additional exemptions,
if any, authorized for such types of income by this Code or other special
laws. (Sec. 31 of the
TRA of 1997).
Shoter Version: All pertinent items of gross income less allowable deductions.
Q. What are the advantages/disadvantages of gross income taxation and net
income taxation?
Advantages of gross income taxation:
1. It simplifies our income taxation. This is so because since no deductions
are allowed, it is very
easy to tax the income. You dont have to find out whether deductions or
expenses are legitimate
or not because they are not deductible.
2. This will generate more revenue to the government.
3. It minimizes cost.
Disadvantages of gross income taxation:
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1. As far as the taxpayer is concerned, this is inequitable because they
cannot claim the expenses,
which are incurred in connection with his trade or business or exercise of his
profession.
2. And if this is the system, in all likelihood the taxpayers will lose interest to
earn more. It will
in effect reduce the purchasing capacity of the taxpayer.
3. Since taxpayers cannot claim those legitimate expenses as deductions,
they may resort to
fraudulent scheme that will minimize their tax ability and this may be done
through the
understatement of income. So, in effect, this will encourage tax evasion.
Advantages of net income taxation:
1. As far as the taxpayer is concerned, they will consider this as equitable
and just system.
2. This will minimize tax evasion because examiners will be employed to
check whether
* DIVIDEND
a. Received from domestic corp. this is an income purely within.
b. Received from foreign corp. consider the income of the foreign corp. in
the Phils. during the
last preceding three (3) taxable years;
rules:
(1) The income is purely within if the income derived from the Phil. sources is
more than 85%
(2) It is purely without if the proportion of its Phil. income to the total income
is less than 60%
(3) There should be an allocation if it is more than 50% but not exceeding
85%
* ANNUITIES
Tax Situs: the PLACE where the contract was made
* PRIZES AND WINNINGS
Prizes may be given on account of services rendered in which case, the
tax situs
is the place where the services were rendered.
If these prizes are not given on account of services, the tax situs is the
place
where the same was given.
Tax situs of winnings is the place where the same was given.
*PENSION
Tax Situs: PLACE where this may be given on account of services rendered
*PROFESSIONAL INCOME OF PROFESISONAL PARTNERS
Tax Situs: PLACE where the exercise of profession is undertaken
GROSS INCOME
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GROSS INCOME means all income derived from whatever source,
including but not limited
to the following:
INCLUSION: [code: STP-IRR-DAP-PS]
1. compensation for services
2. gross income from trade or business or the exercise of a profession
3. gains derived from dealings in property
4. Interests
5. Rents
6. Royalties
7. Dividends
8. Annuities
9. Prizes and winnings
10. Pensions and
11. Partners distributive share from the net income of the general
professional partnership (Sec.
32 of TRA of 1997)
EXCLUSIONS [code: LAGCIRM]
considered as RA.
* If an alien stays in the Phils. for a period of more than one (1) year, he is
considered as RA.
SPECIAL NON-RESIDENT ALIEN ENGAGED IN TRADE OR BUSINESS
(NRA-NETB)
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* He must be an alien individual who is not residing in the Phils. and not
engaged in trade or
business in the Phils.
* He is one whose stay in the Phis.is not more than 180 days
SPECIAL NON-RESIDENT NOT ENGAGED IN TRADE OR BUSINESS
(SNRA-NETB)
* Those employed by: (ROP)
1. Regional or Area Headquarters of Multinational corporations;
2. Offshore Banking Units;
3. Petroleum Service Contractors
NON-RESIDENT ALIEN ENGAGED IN TRADE OR BUSINESS (NRA-ETB)
> considered as engaged in trade or business if his stay is more than 180
days
> We can no longer tax his income from sources without. We can only tax his
income from
sources within.
ENTITLEMENT OF DEDUCTIONS
RC entitled to deductions because the tax base is taxable income.
Gross Income
Less: Allowable deductions
=======================
Taxable Income
NRC entitled to deductions because the tax base is taxable income.
RA entitled to deductions because the tax base is taxable income.
NRA-TB entitled to deductions because the tax base is gross income. Their
income is subject
to 25% tax rate.
SNRA-NETB subject to 15% tax rate on their income in the from of:
S - Salaries
H - Honoraria
O - Other
W - Wages
E - Emoluments
R - Remuneration
EXCLUSION FROM GROSS INCOME
PROCEEDS OF LIFE INSURANCE
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Subject to tax if :
1. the insurer and insured agreed that the amount of the proceeds shall be
withheld by the insurer
with the obligation to pay interest in the same, the interest is the one subject
to tax;
2. there is transfer of the insurance policy;
Example:
A transferred to B his life insurance policy. The value of the policy is P1 M. B
paid a
consideration amounting to P300,000. B continued paying the premiums
after the transfer such
that the premiums amounted to P200,000. Upon the death of the insured,
the P1 M may be
received by the heirs.
Q. Is the full amount of P1 M exempt?
A. NO, only the consideration given and the total premiums paid may be
excluded. That is, P1
M less P500,000.
Problem:A obtained a life insurance policy for B. B is the president of As
corporation. Corp. has
an insurable interest in the life of its officers, so premiums may be paid by
the employer A. Upon
the death of B, his designated beneficiaries will receive the proceeds.
a. Is the amount representing the proceeds of the life insurance policy
taxable?
b. What about the premium paid by the employer A? Does this amount form
part of the
gross compensation income?
c. Does the amount representing the proceeds of life insurance policy from
part of the estate
of the decedent?
Answers:
a. Let us first make two (2) assumptions. Let us assume that:
1. the beneficiary designated is the employer;
2. the beneficiary designated is the heir of the family of the insured.
The Tax Code however, makes no distinction. Regardless of the designated
beneficiary is
the employer or the heirs, or the family of the insured proceeds of life
insurance policy should
always be excluded.
b. Premiums of life insurance policy paid by the employer may form part of
compensation
income; hence, taxable if the beneficiary designated are the heirs or the
family or the
employees.
It is not taxable compensation income if the designated beneficiary is the
employer because that
is just a mere return of capital.
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c. Proceeds of life insurance policy may be excluded from the gross estate of
the decedent
under the following cases:
1. if the beneficiary designated is a 3rd person and the designation is
irrevocable;
2. it is a proceed of a group insurance policy.
However, it is included in the gross estate of the decedent:
1. if the beneficiary designated in the estate, executor or administrator of the
estate
or the family of heirs of the decedent;
2. if the beneficiary designated is a 3rd person and the designation is
revocable [see
Section 85 (e)]
As far as Sec. 85 (e) is concerned, an employer may be considered a 3rd
person.
AMOUNT RECEIVED BY INSURED AS RETURN OF PREMIUM
Reason for Exclusion: It represents a mere return of capital.
The sources of this return of premium: (L.E.A.)
1. Life Insurance Policy
2. Endowment contracts
3. Annuity contracts
---Whether the premiums are returned during or at the maturity of the term
mentioned in the
contract or upon surrender of thee contract
Problem:A took out an endowment policy amounting to P1 M. He paid
premiums amounting to
P800,000. Upon the maturity of the policy, A received that P1M.
How much is the taxable amount?
Answer:
That is P1,000,000. value of endowment policy
LESS: P 800,000. representing amount of premium
==============================================
=
P 200,000. taxable amount
*GIFTS, BEQUESTS and DEVISES
Rationale: What is contemplated here are donations which are purely
gratuitous in character in
order that it may be excluded.
Gifts are excluded because these are subject to donors tax.
Bequests and devises are excluded because these may be subject to
estate tax.
What about remuneratory donations? Remuneratory donations are subject
to
income tax.
EXCEPTIONS to the Rule:>>> the income or fruit of such money given by
donation, bequests
1. Death of an employee;
2. Physical disability of an employee;
3. Any other cause beyond the control of the employee or official.
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Example of no.3
a. Retrenchment of employees;
b. Installation of labor saving devises;
c. Dissolution of law firm.
>Resignation of an employee is a cause within his control.
>But, involuntary resignation is beyond the control of the employee.
>The most important thing here is that the separation pay was given on
account of the abovementioned
sources.
>There is no requirement as to age of the employee or official; there is also
no requirement as to
the length of service of the employee or official.
>No requirement also as to the number of availment of benefits.
-AMOUNT OF THE ACCUMULATED SICK LEAVE AND VACATION LEAVE
CREDITS
The monetized value of these benefits may be subject to tax if these will
not form
part of the terminal leave pay.
The monetized value of sick leave credit is always tax exempt, if it forms
part of
the terminal leave pay.
As regards UNUSED VACATION LEAVE CREDIT, this is exempt only if the
number of days is 10 days or less in excess of 10 days, it is already subject
to tax.
If the unused sick leave benefit is monetized, if the employer allow such
practice,
and the same is given at the end of this year, it is subject to withholding tax
because in this case, it does not form part of the terminal leave pay.
Reason for exemption of terminal leave pay:
The accumulated value of unused sick leave and vacation leave credits
included in
the terminal leave pay is exempt from income tax because it is one received
on
account of a cause beyond the control of the employee. This terminal leave
pay is
usually given under a compulsory retirement. Compulsory retirement is a
cause
beyond the control ofte employee.
*MISCELLANEOUS ITEMS
a. Prizes and Awards in Awards Competitions
REQUISITES:
2. Compensation
3. Dismissal power
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4. Control test
N.B. : The name or designation of income is immaterial. The basis of the
income is immaterial
and the manner by which it is paid, is also not important. As long as it is
given under an
employer-employee relationship, then that is compensation income.
CANCELLATION OF INDEBTEDNESS Considered as compensation income
is the
indebtedness had been cancelled in consideration of the services rendered.
*** Share of the employee from the PROFIT SHARING PLAN of the employerCompensation
income received in consideration of services rendered.
TAX LIABILITY OF THE EMPLOYEE PAID BY THE EMPLOYER
Compensation
income if paid under an employer-employee relationship in consideration of
services rendered.
PREMIUMS PAID BY THE EMPLOYER ON THE INSURANCE POLICY OF
THE
EMPLOYEE Compensation income if the beneficiary designated is the
family of heirs of the
employee.
*** The basis of the income is immaterial. Even if it is paid in piece work,
fixed rate or
percentage basis as long as it is paid under an employer-employee
relationship.
REQUISITES FOR TAXABILITY OF COMPENSATION INCOME ARE: (SPR)
1. There must be services, rendered under an employer-employee
relationship.
2. If payment must be for that services rendered.
3. It must be reasonable. The compensation for services rendered must be
reasonable.
Purpose why only a reasonable amount may be taxed as
compensation income:
Take note on the part of the employer, he can claim such compensation for
services as
deduction. Now, only the amount that is reasonable under the circumstances
can be claimed as
deduction. So, if the amount or the value of the services rendered is P10,000
but the employee
received P15,000. As far as the employer is concerned, he can only claim the
reasonable amount
of P10,000. In the case of an employee, he can consider P10,000 as
compensation income. The
5. Interest on loan at less than market rate to the extent of the difference
between
the market rate and the actual rate granted;
6. Membership fees, dues and other expenses borne by the employer for the
employee in social and athletic clubs or other similar organizations;
7. Expenses for foreign travel;
8. Holiday and vacation expenses;
9. Educational assistance to the employee or his dependents; and
10. Life or health insurance and other non-life insurance premiums or similar
amounts in excess of what the law allows.(if contribution-exempt)
* Housing allowance may be exempt from tax if the living quarters
are:
a. Provided with the premises of the employer.
b. It must be made as a condition of employment.
If said requisites are not present, housing allowance may be taxed as
fringe
benefits.
* Meal allowance may be exempt from tax if it is provided within the
premises of the
employer.
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* Privilege or purchase discount are tax exempt if it does not exceed
of the basic monthly
salary of the employee. If it is more than , the excess may be as fringe
bene
* Medical or hospital allowance, clothing allowance, rice allowance
may be exempt from
tax if the following requisites are present:
1. It must be of relatively small value (reasonable amount). (RSV)
2. It must be given for the following purposes: (CHEG)
a. To promote Contentment
b. To promote Health
c. To promote Efficiency
d. To promote Goodwill
* Tax Exempt fringe benefits: (RF, DM, C, Ex, ECR)
1. Benefits given to the rank and file employees, whether granted under a
collective
bargaining agreement or not.
2. De minimis benefits means of small amount. These are benefits
relatively of
small amount.
3. Contributions of the employer for the benefit of the employee to
retirement,
insurance and hospitalization benefits plans.
4. Fringe benefits which are authorized or exempted from tax under special
laws.
5. Those given for the convenience of the employer, including those which
are required
by the nature of the trade, business or profession of the employer
(Employers
Convenience Rule)
De minimis benefits (of relatively small value) limited to facilities or
privileges furnished or
offered by employer to his employees merely as a means of promoting
health, goodwill,
contentment, or efficiency of employees, such as:
a. Monetized unused vacation leave credits not exceeding ten (10) days
during the
year;
b. Medical cash allowance to dependents of employees not exceeding P750
per
semester of P125 per month;
c. Rice subsidy of P350 per month;
d. Uniforms;
e. Medical benefits
f. Laundry allowance of P150 per month;
g. Employee achievement awards, for length of service of safety
achievement in the
form of tangible personal property other than cash gift certificate, with an
annual
monetary value not exceeding month of the basic salary of employee
receiving
the award under an established written plan which does not discriminate in
favor
of highly paid employees;
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h. Christmas and major anniversary celebrations for employees and their
guests;
i. Company picnics and sports tournaments in the Philippines and are
participated in
exclusively by employees; and
j. Flowers, fruits, books or similar items given to employees under special
circumstances on account of illness, marriage, birth of a baby, etc.
*Principle of Employers Convenience Rule:
- fringe benefits may be exempt/not subject to tax if these are given for the
benefit
or advantage of the employer.
The following are the possible fringe benefits, which may be exempt
under the Employers
Convenience Rule: (H V H M T)
a. Housing benefit
b. Vehicle
c. Household personnel
d. Membership in a social or athletic club or similar organization
e. Traveling expense benefit
* Housing benefit in determining whether the same is exempt under the
employers
convenience rule, you have to consider the peculiar nature of the special
needs of the employer.
Requisites for exemption:
1. It must be made as a condition for employment;
2. It must be provided within the premises of the employer
*** This may apply to a supervisor of a plant or a company.
* If the housing or living quarters are provided outside the premises of the
employer, even if that
is for the convenience of the employer, this is only exempt up to 50% of the
amount. So, 50%
taxable, 50% exempt.
* Vehicle Exempt but depends upon the peculiar nature of the special
needs of the business of
the employer.
Example: LBC or DHL business
* Household personnel such as maid, driver and others Exempt, but
depends upon the
peculiar nature of the business of the employer.
* Membership in a social club, etc. Peculiar nature requirement.
* Traveling expense benefit Peculiar nature requirement. Example:
Employer sent his
employees abroad to attend a particular seminar to improve their technical
know-how.
BAR QUESTION: A is a driver of Congressman Magtanggol and he received a
monthly salary
of P5,000 and living quarter allowance of P2,500.
a. Whether the P2,500 living quarter allowance is excluded or subject to tax?
b. Assuming the employer is an obstetrician would your answer be the same?
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ANSWER:
a. That should be subject to tax.
b. It should be excluded. Reason: Convenience of the employers rule.
2. GROSS INCOME FROM BUSINESS, TRADE OR PROFESSION
BUSINESS Any activity that entails time, attention, effort for purposes of
livelihood or profit.
As regards construction business, the taxpayer here must be an
independent
contractor. He may report his income under the percentage of completion
method
or under the so-called completed contract method.
20% 20% 25
%
INTERESTS ON BANK DEPOSITS,
etc. 20% 20%
25
%
DIVIDENDS RECEIVED from
domestic corp., etc.
Subject to increasing rates
of 6% if received in 1998;
8% in 1999; and 10% in
2000.
20% 25
%
SHARE OF A PARTNER in the net
income after a tax of a taxable
partnership, etc.
- do6, 8 & 10
20% 25
%
Question: How do you treat that share of a professional partner from the net
income of a generalprofessional
partnership?
Answer: This should be taxed at the rate provided under Sec.24, that is, 5%
to 34%.
But as regards the share of a partner in the net income after tax of
a taxable or
business partnership, that is one which is subject to final tax.
PRIZES may be exempt if given in sports competition and if given primary
in recognition of
scientific, artistic, literary, educational, religious, charitable, or civic
achievement.
INTEREST
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Rules
1. If it is an interest on foreign currency deposit system, it is exempt.
If the recipient is non-resident individual (NRC, NRA-ETB, NRA-NETB).
2. If the recipient is a resident individual (RC, RA), that is subject to 7.5 %.
3. Interest income is also exempt if it is an interest income on a long- term
deposit or
long-term investment (this must have a term of not less than 5 years).
If the term is less than 5 years it is subject to the following rates:
1. 4 years to less than 5 years 5%
2. 3 years to less than 4 years 12%
3. Less than 3 years 20%
That is why, the sale of residential house and lot is subject to 6% of capital
gains because it
is a real property not used in trade or business.
But, sale of real property by a real estate dealer is not a capital
transaction because the
property involved is one primarily held for sale to customer in the ordinary
course of trade
or business. That is not a capital asset but an ordinary asset.
This covers not only sale of property; it also covers conditional sale of
real property
including the so-called pacto de retro sale under Art. 1602 of the NCC, or
disposition of
property located in the Phils.
If the buyer is the government or any of its political sub-divisions or
political agencies,
including government owned and controlled corporations, the seller have the
option to
avail the 6% or under Sec. 24(A), wherein the basis under said section is
taxable income so
deductions may be allowed. The cost of the property may be deducted but
when you avail
of the 6%, the basis is gross selling price or zonal value whichever is higher.
Is this a tax on the buyer or the seller?
It is a tax on the seller. But sometimes, through an agreement, pwede nilang
I-transfer sa
buyer, and theres nothing that can prevent the seller from transferring the
tax to the buyer
in the contract of sale.
OTHER INCOME
* OTHER INCOME includes [code: R.I.D.O.]
a. Rent income other than royalties
b. Interest income other than interest income on bank deposit
c. Dividend income
d. Income from Other sources and this may include: (BIT-CDC)
d.1. Bad debts recovered
d.2. Illegal gains derived from gambling
d.3. Tax funds
d.4. Compensation for private property expropriated
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by the government for public use.
d.5. Damages
d.6. Cancellation of indebtedness
1. RENT - Compensation for the use of ones property.
- The payment may be in cash or in kind. The property involved is either
personal or real property.
- In the case of personal intangible property, subject to final tax if it involves
Property dividend - it may be in the form of stock other than the stock of the
corp.
Stock dividend - stock issued by the giver corp.
Script dividend - It is given in the form of promissory note or other evidence
of
indebtedness.
STOCK DIVIDEND as a rule not taxable. This is so because there is no
income here. It
merely represents the transfer of surplus account to the capital account.
EXCEPTIONS to the Rule:
Stock dividend may be subject to tax under the following
exceptional cases: [C OR D]
1. If there is a Change in the stockholders interest in the net assets of the
corp;
2. If it is one issued by Other corp. We call that dividend stock
Stock dividend vs. dividend stock Stock dividend as a rule is not
taxable whereas
dividend in stock is taxable.
3. Redemption of stock dividend;
4. If the corp. issues Different shares of stock. If the corp. issues two different
classes of
shares of stock, the dividend that may be declared thereafter is taxable.
Example:
Outstanding stock Stock dividend Taxable
1. Preferred Common NT
2. Common Preferred NT
3. Preferred Preferred NT
4. Common Common NT
5. Preferred/Common Preferred T
6. Preferred/Common Common T
Disguised dividend treasury stock dividend declared out of the
outstanding capital stock, the
purpose of which is to avoid the effect of taxation (Commissioner vs.
Manning).
It is one which is made to appear as stock dividend when the truth of the
matter is that it is a
dividend which is illegally declared, such a case, since the purpose is to
evade taxation, it is
taxable.
Remember, treasury shares of stock are not entitled to dividends.
ALLOWABLE DEDUCTIONS (SEC. 34)
As regards individual taxpayers, the following may claim allowable
deductions:
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1. RC
2. NRC, only those expenses incurred in the Phils. because here, we cannot
tax his
income derived from sources without.
3. RA, only those expenses incurred in the Phils.
4. NRA-ETB, but only those expenses incurred in the Phils.
5. PP (Professional Partners under Sec. 26)
Exceptions:
1. IT earning CI EE, ER REL
2. NRA-NTB
3. Aliens employed
A. RMC
B. OBU
C. PSC
4. NRFC
As regards corporate taxpayers, the following are entitled to claim
allowable
deductions:
1. DC, which includes private educational institutions, non-profit hospital,
government-owned
and controlled corps.
2. RFC
ITEMIZED DEDUCTIONS: [E,I.T,L,B,D,D,C,R,C]
1. Expenses 6. Depreciation
2. Interests 7. Depletion of oil, gas, wells and mines
3. Taxes 8. Charitable contributions
4. Losses 9. Research & Development
5. Bad debts 10. Contribution to Pension Trust
* In the case of individual taxpayers, they may avail of the optional standard
deduction of 10%
of gross income
* Corporate taxpayers are not allowed to claim 10% optional standard
deductions.
* All individual taxpayers except the NRA individual may claim this optional
standard
deductions.
* Itemized deduction may apply to corporate taxpayers as well as
individual taxpayers.
* FUNDAMENTAL PRINCIPLE IN DEDUCTIONS
1. The taxpayer must prove that there is law authorizing deductions.
2. The taxpayer must prove that he is entitled to deductions.
*** NRFC are not entitled to claim deductions.
1. EXPENSES
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ORDINARY & NECESSARY EXPENSES
When we speak of ORDINARY, this simply refers to the expenses which are
normal, usual or
common to the business, trade or profession of the taxpayer. This may not
be recurring.
Example: if an action is filed in court, it is but normal to hire the services of a
lawyer. So, the
taxpayer has to pay attorneys fees. It is an ordinary expense under this
circumstances.
NECESSARY- It is one which is useful and appropriate in the conduct of the
taxpayers trade or
profession.
ORDINARY & NECESSARY EXPENSES
-are those which are incurred or paid in the development, operation
management of the business,
trade or profession of the taxpayer.
EXTRA-ORDINARY EXPENSES Not Deductible. These are amortized or in
lieu of the
same, you may claim that so-called allowance for depreciation. And if it
involves intangible
asset, the word used is AMORTIZATION.
There is no hard and fast rule. An expense may be ordinary insofar as a
particular taxpayer is concerned and it may not be an ordinary as regards
another taxpayer.
Example:
If you have business here in Manila and you also have business in Tawi-tawi,
what is the
expense that you may incur in Tawi-tawi which you may not possibly incur in
Manila?
In Tawi-tawi, you may need people to guard your business. But here in
Manila, you may
need not because of our new President-elect.
KINDS OF ORDINARY & NECESSARY EXPENSES [C.A.R.T.E.R.S.]
1. Compensation for services rendered
2. Advertising & promotional expenses
3. Rent expenses
4. Travelling expenses
5. Entertainment expenses
6. Repairs & maintenance expenses
7. Supplies and materials
COMMON REQUISITES FOR DEDUCTIBILITY of these ordinary &
necessary
expenses: [D.I.R.]
a. Must be paid or incurred DURING the taxable year.
If you incur expenses in 1997, you cannot carry this over to 1998. expenses
incurred during a particular year must be claimed as deductions during this
year
when the same were incurred.
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PAID to signify the fact that the taxpayer uses the CASH
BASIS. Under the CASH BASIS, an expense is recognized
when it is PAID.
INCURRED implies that the taxpayer employs the ACCRUAL
BASIS. Under the ACCRUAL BASIS, income is recognized
when earned regardless of the receipt of the same and
the expense is recognized when incurred.
b. Must be paid or incurred in connection with the trade, business or
profession of
the taxpayer.
c. Must be proven by RECEIPTS.
SPECIAL REQUISITES FOR DEDUCTIBILITY OF THESE ORDINARY &
NECESSARY EXPENSES:
1. COMPENSATION FOR SERVICES RENDERED
This must be reasonable, meaning, this must not be ostensible.
Case 1: Partnership was sold to a corp. and it was agreed that the partners
will serve the
corp. and make it appear that they render services. So, compensation for
services was ostensibly
made by the corp.
Held: These is a mere ostensible salary or payment for services not actually
rendered
because that amount really forms part of the properties purchased by the
corp.
Case 2: Corporate officers succeeded in selling the property of the corp. So,
profit was
derived therefrom. Bonuses were given to these corporate officers.
Held: The rule is settled. Bonuses must be given in good faith. There must
be services
rendered because bonuses are additional compensation. In this particular
case, there was really
no services rendered because that sale was made through a broker. The
corp. made it appear that
it was through the efforts of these corporate officers that brought about a
successful sale of
property.
Bonuses must be given in good faith and in determining whether bonuses
will form part
of the compensation for services rendered, you have to consider the (1)
nature of the business,
(2) the financial capacity of the taxpayer and (3) the extent of the services
rendered.
2. ADVERTISING AND PROMOTIONAL EXPENSES
- It must be reasonable.
Case: Sugar Devt. Corp paid P125,000.00 to Algue Corp. representing
promotional expenses.
36
Held: This is reasonable under the circumstances because the particular
budget subject for
promotion involves million of pesos. And under that circumstances, the
P125,000.00 is
reasonable as this may coincide with the efforts exerted considering that the
taxpayer has no
venture in that experimental project to establish that vegetables of
investment company and this
involves millions of pesos.
3. RENT EXPENSE
a. The taxpayer must NOT be the owner of the property or he has no
equitable title
over the property.
b. This is subject to withholding tax. You cannot claim that the taxes
supposed to
be withheld have not been paid or remitted to BIR.
4. TRAVELLING EXPENSES
- This must be incurred or paid while away from home.
- Home does not refer to your residence but to the station assignment or
post.
Example: From home office to branch office, the traveling expenses incurred
are deductible.
And this includes not only the transporatiotion expenses but also meal
allowance and hotel
accommodations.
5. ENTERTAINMENT EXPENSES
- This must not be contrary to law, morals, good customs, public policy or
public order.
- Hence, bribes, kickbacks, and similar payments are not deductible.
-Also, the expenses incurred by the taxpayer in entertaining govt officials in
5-star hotel to gain
political influence are not deductible.
6. REPAIRS AND MAINTENANCE EXPENSES
- Only ordinary or minor repairs are deductible.
- Extra-ordinary repairs cannot be claimed as deduction and in lieu of that,
the taxpayer may not
be allowed to claim depreciation.
- If the cost of the repair increases the life of an asset for a period of more
than one (1) year, that
amount is considered extra-ordinary repair. Otherwise, it is considered
ordinary repair.
7. SUPPLIES AND MATERIALS
-This must be actually consumed during the taxable year.
- RULE ON SUBSTANTIATION simply requires that ordinary and necessary
expenses must
payment is dependent upon the profits of the corp. It will only be paid if the
corp. earn profits.
And would not be paid of the corp. incurs losses.
BUT if it is not dependent upon corporate profits or earnings, that is
deductible. If is
payable on a particular on a particular date or maturity without regard to the
corporate profits, it
is deductible.
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The Supreme Court mentions TWO (2) FACTORS:
1. not dependent upon corporate profits; and
2. agreement as to the date or term within which payment will be made.
INTEREST ON GOVT SECURITIES is now taxable.
So, if the taxpayer obtained a loan from PNB and used the proceeds in
purchasing govt
securities, the interest is now taxable. Likewise, the interest expense paid on
that loan, the
proceeds of the same, had been use to purchase govt securities is now
deductible.
Q. What about an interest on a loan paid in advance, is this deductible? Let
us say that the
taxpayer obtained a loan from a bank and it is payable within 5 years. The
loan obtained is
P50,000.00. Now, it was deducted in advance, can that be claimed as
deductions?
A. NO. You can only deduct the same when the installment is due a particular
year.
INTEREST EXPENSES WHICH ARE NON-DEDUCTIBLE [PARCAPU]
1. Interest expense on PREFERRED STOCK;
2. When there is NO AGREEMENT in writing to pay interest;
3. Interest expense on loan entered into between RELATED TAXPAYERS.
4. Interest paid or calculated for COST-KEEPING PURPOSES
5. Interest paid in ADVANCE
6. Interest on obligation to finance PETROLEUM EXPLORATION
7. Interest on UNCLAIMED SALARIES of the employees
Related taxpayers:
a. members of the same family which includes:
a.1. spouses
a.2. brothers and sisters
a.3. descendants and ascendants
b. between two (2) corporations owned or controlled by one individual. He
must have a
controlling interest over these two corporations. OR, if one corp. is
considered as
personal holding company of another corp.
NO. That can only be claimed as deductions if the one demolishing the same
is
the taxpayer. The moment that is sold to another claim that as deductible
loss.
The treatment here is, the cost of demolition should be capitalized in the
selling price.
Exception:A may claim that as deductible loss if this was demolished by
value
of a court order because the govt considered this as a fire hazard, loss of
42
useful value of property or capital asset.
THE COMMON REQUISITES for DEDUCTIBILITY OF LOSSES are:
1. Losses must be actually/sustained and not mere anticipated losses;
2. Must not be compensated by insurance;
--- If it is partly compensated, only the amount not compensated by
insurance is
deductible.
3. Must be evidenced by a completed transaction.
Completed Transaction this means that the loss must be fixed by
identifiable
event.
Example: If it is a loss sustained from sale, the event that may identify or
complete the transaction is the consummation of the contract of sale.
Suppose it is in the nature of casualty losses like fire?
The fire destroyed your property in 1995, no payment has been made
because the
insurer and the insured were still under negotiation. It was only in 1997 that
they
agreed on the amount. The amount agrees upon is P100,000. The taxpayer
may
claim that casualty losses only in 1997 when payment was actually made.
This is the
event that will complete the transaction.
5. BAD DEBTS
REQUISITES FOR DEDUCTIBLITY: [CU, W, TBP, VS, U]
1. Must be charged off and uncollectible within the taxable year;
2. Must be ascertained to be worthless
3. Must arise from trade, business or profession of the taxpayer;
4. Must be valid and subsisting indebtedness;
5. Must be uncollectible in the near future.
HOW TO PROVE THE WORTHLESSNESS OF OBLIGATION:
According to the Supreme Court, the following STEPS must be complied:
1. There must be a statement of account sent to the debtor;
2. A collection letter;
3. If he failed to pay, refer the case to a lawyer;
4. If lawyer may send a demand letter to the debtor;
5. If the debtor still fails to pay the same, file an action in court for collection.
In proving that the debtor is insolvent of bankrupt, mere allegation of the
same is not
enough. You should prove that the debtor is indeed bankrupt or insolvent. So,
you
may secure a copy of that decision by the SEC or other agency as the case
may be,
declaring the debtor as bankrupt or insolvent. And then there must be a
demand
letter sent to him. In case the debtor was robbed, there must be a police
report to that
43
effect.
The debtor may be a NRFC, so you may argue that he may not be sued here.
According to the Supreme Court, as a rule that is not an excuse. You should
still
send a demand letter to that NRFC. In other words, there must be diligent
efforts to
collect the indebtedness and to prove that in the near future such obligation
is no
longer collectible.
*** If the recovery of bad debts, resulted in a tax benefit to the taxpayer,
that is taxable.
If it did not result in any tax benefit to the taxpayer, that is not taxable. (TAX
BENEFIT RULE)
N.B. Read the case of Phil. Refining Company vs. Commissioner, a 1989 case.
6. DEPRECIATION
The idea here is not to recover profit, but to recover the cost of property
invested in
business. When the properties are used in trade, business or profession of
the taxpayer, the law
considers or recognizes the gradual loss or sale of property.
DEPRECIATION refers to the gradual diminution of the useful value of the
property used in trade, business or profession of the taxpayer, arising from
wear
and tear or natural obsolence.
REQUISITES FOR DEDUCTIBILITY: [U P R A C ]
1. The property must be used in trade, business or profession of the
taxpayer;
2. There must be depreciable properties.
The non-depreciable properties are
a. Personal property not used in trade, business or profession of the
taxpayer;
b. Inventoriable stock and securities
c. Land
d. Mining and other natural resources
Was this deliberately omitted by our Congressmen? Does this imply that
since they have so
may illegitimate children, they may not be required to acknowledge or
recognize them and they
can claim this illegitimate child as their dependent? This is not clear. If we
will try to interpret
the law literally, there is no need of any recognition on the part of the
taxpayer.
Is this really the intention of law?
No. The intention of the law has always been to recognize this illegitimate
child and this is
one way of compelling the taxpayers to recognize this child.
The President of the Republic of the Phils. cannot issue an
executive order to increase
the basic personal exemption because the provision under the Old Tax
Code authorizing the
President to increase the personal and additional exemption upon the
recommendation of the Sec.
of Finance has been removed or deleted by RA 8424.
Now, you can only increase the amount of personal and additional
exemption by legislative
enactment.
NON-DEDUCTIBLE ITEMS
1. Personal, living or family expenses
2. Those which are considered capital expenses. Capital expenditures may
be one that may
increase the value of an asset.
3. Extra-ordinary repair expended to restore the property, or making good its
exhaustion. Extraordinary
repair is one that may prolong the life of an asset for more than one (1) year.
You
cannot claim the same as deduction. Instead, you may claim it as allowance
for depreciation.
4. Premiums paid on the life insurance policy of the officer or employee of
the employer, when
the employer is directly or indirectly designated as beneficiary.
5. Losses from sales or exchanges of property between related taxpayers
RULES:
Premiums paid on the insurance policy of the officer or employee may be
claimed as
deduction by the employer, If the beneficiary is the family or the heirs of the
officer or the
employee.
It is not deductible on the part of the employer, If the beneficiary
designated directly or
stockholder or individual.
- Makati stock exchange and Manila stock exchange are not covered
by the exception. They are subject to tax.
Requisites:
a. This must be established for common business interest.
b. No part of the income shall inure to the benefit of a particular individual.
Example: A clearing house corp. established by member not for profit and
such
corp. is tax exempt.
If an association is organized by businessmen for the purpose of encouraging
prospective investors to invest in the Phils. that association is not tax exempt
because the members of such organization have different business interests.
52
10. Civic league or organization not organized for profit but operated
exclusively for
the promotion of social welfare.
Example: Piso for Pasig Foundation is not for profit. This is a civic
organization.
Homeowners Association is subject to tax because that is not organized for
profit.
11. Farmers associations or like associations, organized and operated as a
sales agent,
for the purpose of marketing the products of its members, and turning back
to
them the proceeds of sales, less the necessary selling expenses on the basis
of the
quantity of produce finished by them.
Quantity of poduce means proportionate. This must not be for profit.
12 Farmers cooperative or other mutual typhoon or fire insurance company,
mutual
ditch or irrigation company, or like organization of a purely local character,
the
income of which consists solely of assessments, dues and fees collected from
members for the sole purpose of meeting its expenses.
13. Government educational institution. These are U.P.M.S.U.
14. A non-stock and non-profit educational institution.
Take note that the last paragraph of Sec. 30; it provides, Not withstanding
the
provisions in the preceding paragraphs. This means that even though they
are
exempt, as regards certain income, they may be subject to tax.
** So, notwithstanding the provisions in the preceding paragraphs, the
income of
whatever kind and character of the foregoing organizations from any of their
properties, real or personal, or from any of their activities conducted for
profit
producing activities.
Held: When these heirs inherited the property from their deceased mother,
co-ownership exists.
At the particular stage, it is exempt from tax when the heirs decided to
invest such property in an
income producing activity that co-ownership is converted in to a taxable
unregistered ownership
(Sea vs. Commissioner Sea doctrine)
Case: There was two sisters who form a common fund for the purpose of
engaging in a series of
transaction for profit.
Held: There is a taxable unregistered partnership here.
**Test that will determine whether co-ownership is taxable
unregistered partnership Find
out whether the heirs made a substantial improvements on the inherited
property. The heirs made
a substantial improvement on the inherited property, the implication is that
they will engage in a
business for profit, (Evangelista vs. Commissioner Evangelista
doctrine). If that happens,
that co-ownership will be taxed as unregistered.
55
Case: Obelio Sr. entered into a contract with Ortigas limited company. Under
that contract,
Ortigas limited company will distribute parcels of land to the Children of
Obelio Sr. for their
residential houses. After the subdivision of such parcel of land to the children
of Obelio Sr., these
children decided to sell this parcel of land to Wide City Corp. Was there a
taxable partnership
formed by the children of Obelio Sr.?
Held: There was no partnership formed because there was no intention to
divide the profits
among themselves. This was a mere isolated transaction. Isolated
transaction will negate any
intention to divide the profits among themselves. Thus, there was no taxable
partnership formed.
Case: Pascual and Dragon purchased 3 parcels of land from Bernardino and
2 parcels of land
form Mr. Roque. Thereafter, the three parcels of land which were purchased
from Bernardino,
were sold to Marimer Corp. with a profit of P165,222.70 while the parcel of
land purchased from
Mr. Roque were sold at a profit of P60,000 to Reyes.
Held: there was no partnership organized because this is just a mere sharing
of gross return.
And as you have learned in partnership, the law says, the partners share in
the net profits of a
taxable partnership. So, mere sharing of gross return does not of itself
establish a partnership.
Joint account When two persons form or create a common fund and such
persons engaged in a
business for profit, this may result in a taxable unregistered association or
partnership.
Registration is not a requisite for purposes of taxation. What is important
here is they must
engage in a business or activity for profit.
Joint stock companies This is the midway between corporation and
partnership. This has what
you call hybrid personality. It is somewhat a partnership because it is an
association, and
persons or members of the same contribute fund, money to a common fund.
And this us managed
by Board of Directors; this means: it has that feature of a corporation. And
these persons may
transfer their share without the consent of others.
Emergency operation These may be formed by two corporations. This
two corporations have
separate personalities. If they form that emergency operation (it is really a
special activity) to
engage in a joint venture, corporation 1 may be taxed only from the income
derived from such
business. The income derived from such emergency operation should also be
included in that
taxable income subject to corporate income tax. In the same way, that
corporation 2, has a
separate and distinct personality; if it a part of that emergency operation,
the income derived
from such special activity should also be included in the income of that
corporation 2, subject to
corporate income tax, even if it is not registered with the SEC (Securities and
Exchange
Commission).
But if two corporations are managed by one manager, and this 2
corporations leased services,
managed by one person and it has 2 separate accounts, it is not an
association formed which is
subject to tax.
Domestic Corporation (DC) corp. formed or organized under Phil. Laws
56
Resident Foreign Corporation (RFC) foreign corporation engaged in
trade or business within
the Phils.
Non-Resident Foreign Corporation (NRFC) foreign corp. not engaged in
trade or business
within the Phil.
There is no fix criterion as to what constitute engaged in trade or business.
Each case
shall be judged in the light of peculiar environmental circumstances. But
engaged in business
implies continuity of commercial transaction or dealings continuity of
business; there must be
continuity of intention to conduct continuous business.
Case: BOAC is an offline international airline. Offline because it does not
render any services
and no landing rights in the Phils.
BOAC claimed that it is not subject to tax with respect to the sale of transport
documents
or airline tickets in the Phils because it is an offline international airline. It
does not render any
service and it has no lending rights.
Held: The contention of BOAC is not tenable. The income derived from the
sale of that
transport documents in the Phil. is subject to tax. The subject of income may
be property, activity
or service that produce the same. For an income to be considered as an
income derived from
sources within the income must be derived from activity conducted or
undertaken in the Phil.
It is true that BOAC had no property in the Phil. from which its income may
be derived.
It is true that BOAC did not render any service in the Phil. from which its
income may be
derived. But there was that activity that was undertaken in the Phil. from
which income was
derived and that refers to the sale of transport document. According to the
Supreme Court, the
sale was made in the Phil. and the payment was made in the Phil. This
particular activity enjoys
protection of the Phil. government. So, it should share the burden of tax.
BOAC was considered
doing business in the Phil. under this particular situation because there were
series of
transactions made in the Phil. and BOAC was appointed a permanent agent
in the Phil. This
implies that the Phil. and the BOAC had no intention to establish continuous
business here in the
2.
INTERNATIONAL
SHIPPING
I
(Income Within)
GROSS
PHILIPPINE
BILLINGS
2.5%
(2. ____ %)
*** For purposes of International Air Carrier, GROSS PHIL. BILLINGS
refer to the amount
of gross revenue derived from carriage of persons, excess baggage, cargo
and mail originating
from the Philippines in a continuous and uninterrupted flight irrespective of
the place of sale or
issue, and the place of payment of the ticket or passage document.
* Gross Phil. billings for purposes of International Shipping means
gross revenue whether
from passenger, cargo or mail originating from the Phils. up to final
destination, regardless of the
place of sale or payments of the passage or freight documents.
C. SPECIAL NRFC Sources Tax Base Tax Rate
1. LESSOR OF
CINEMATOGRAPHIC
FILMS
I GROSS 25%
2. LESSOR OF
VESSELS
CHARTERED TO
FILIPINO
NATIONALS OR
CORP.; The Charter
Agreement of which is
approved by Maritime
Industry Authority
I GROSS 4.5%
3. LESSOR OF
AIRCRAFT,
MACHINERY &
EQUIPMENT
I GROSS 7.5%
60
*** Lessor of CD and video is not included in no. 1. So, it is subject to 34%
tax rate.
Price
b. If it is
NOT listed
or traded
thru local
stock
exchange:
Not over
P100,000.: 5%
Over
P100,000: 10%
This rule applies BOTH to corporate and individual taxpayers.
5. CAPITAL
GAINS
DERIVED
FROM THE
SALE OF REAL
PROPERTY
WHICH IS NOT
USED IN TRADE
OR BUSINESS
6% of the
Gross Selling
Prize or Zonal
Value
whichever is
Higher
Should be treated as OTHER INCOME
SUBJECT to 34%
6. *** BRANCH
PROFIT
REMITTED BYA
BRANCH
OFFICE (this
only applies to
RFC)
NOT
APPLICABLE
Subject to
Branch
Profit
Remittance
Tax of 15%
NOW, the
basis of the
tax is the
amount
applied for
or
NOT APPLICABLE
62
earmarked
for
remittance
CASE:
Marubeni Corp. is a foreign corp. it has a branch here. It made a direct
investment in a
Domestic Corp., so it received cash dividends. Do we have to include that in
that profit to be
remitted and subject to 15%?
HELD:
NO. This is not effectively connected with the conduct of trade or business of
their
branch office. That should be excluded from the profits that should be
remitted to that Marubeni
Corp. The condition is, it must be an income or profit effectively connected
with the conduct of
trade or business of such corp. through its branch office.
7. DIVIDENDS
RECEIVED
FROM DC
EXEMPT EXEMPT
* These dividends received from DC
by NRFC is subject to 15% Final
Tax IF: the foreign govt. of that
foreign corp. allows a tax credit at
least 19% of the taxes deemed paid
in the Philippines by NRFC.
* So, the implication is that if that
foreign govt. does not allow a tax
credit of at least 19%, that is
subject to 34% and not 15%.
Note: These incomes must be derived from the Phils. So, this is an interest
income on bank
deposit maintained OUTSIDE the Phils., that is not subject to final tax but
should be included in
the gross income of the DC.
INTRACORPORATE DIVIDENDS EXPLAINED
TAX SPARING CREDIT (Sec. 28.B (5) b) >>> 19%
Purpose: To attract investors in the Phils.
Situation: NRFC received dividend, cash or property dividend from DC. That
dividend
that properties which are ordinarily held for sale to customers maybe
converted into a Capital
Asset.
FACTORS that should be considered in DETERMINING whether it is
CAPITAL or NOT:
1. It may be the vocation of the taxpayer.
In one case, if the taxpayer is engaged in hotel management and he
inherited
jewelry from his parents and hell sell the same, the Court said that it is a
Capital
Transaction.
It would be different if the one selling a parcel of land is a real estate
dealer and
he developed the same before this property may be sold to another, this
time such
taxpayer is engaged in a business, in which case that sale of parcel of land is
considered as Ordinary Transaction.
2. Sometimes the period or the extent of activities may play an
important role.
Case:
65
If a taxpayer is engaged in a lumber business and he has been unsuccessful
for a period of
11 years and he tried again on the 12th year. The sale that may be made on
the 12th year may not
be considered ordinary transaction.
But those sales which, would have been made during that 11th year when
such taxpayer is
engaged in trade or business may be considered Ordinary Asset.
If the taxpayer stop his business and then undertake another business, that
may be
considered Capital Transaction.
SPECIAL CAPITAL TRANSACTIONS these transactions are deemed
capital transactions.
SPECIAL CAPITAL TRANSACTIONS INCLUDE:
1. Failure to exercise option or privilege to buy or sell property.
Example: B offers his land to A. B gives A 5 days within which to make up
his mind to buy
this parcel of land for P500,000.00 Now, A pays B P5,000 for giving him time
to think
whether he will buy that during the 5 day-period. If A fails to buy the same,
he incurred a
loss and we call this Capital Loss. So, the loss of A is considered a gain on the
part of B
because the latter received that P5,000.
So, failure to exercise option to buy may result in a capital loss on the part of
the offeree
or buyer. As regards the seller, the gain is considered Capital Gain.
2. Distribution of assets or shares of stock to stockholder upon
liquidation of a corporation.
Example: After liquidation, the stockholders are entitled to the return of
their capital if there
is still something left. If A made an investment and the value of his shares of
stock is P100,000,
after liquidation of the corporate affairs, the corp. gives A P150,000. The gain
of A which is
P50,000 is considered Capital Gain.
3. Readjustment of partners interest in a partnership.
Example: A partnership is earning a profit, let us say, P100,000. Then it
increases to P1M.
So, the partnership may readjust the partners interest in the partnership. Or
it may also
arise if for example, A made an additional contribution. So, As interest will
change.
Now, in making readjustment of interest, the partner may derive gain
therefrom, and that
is a Capital Gain.
4. Retirement of bonds.
Example: The debtor issues bonds and after one (1) year, he pays the same.
The value of the
bonds is P100,000. Upon redemption, the debtor pays P120,000 to the
creditor. So the P20,000 is
66
a gain to the creditor and we consider that as a Capital Gain. But if there is a
loss, that is
considered as Capital Loss.
5. Wash Sale This has been described as 61 days sale
The seller here is not a dealer in securities.
It is described as 61 days sale because here, 30 days before the sale, the
seller acquired
substantially identical securities OR 30 days before the sale, he acquired
identical or
substantially the same stocks or securities. Sale may also include
exchange or option to sell
securities.
Example: Today is June 10, Now, here is A who is not a dealer in securities or
stocks. He
sells securities.
Can that be classified as wash sale?
You must find out whether 30 days before June 10, he purchased identical
securities. Or he ma
not have purchased identical securities within that 30 day period before the
sale but it is possible
that within 30 days after June 10, he may have purchased identical
securities.
The tax treatment here is, the gain is taxable, meaning that is classified as
Capital Gain because
the seller is not engaged in such business. If there is a loss, since it is
classified as Capital
Transaction, that is considered Capital Loss.
The capital gain is taxable but the capital loss incurred from wash sale
transaction is not
deductible.
6. Short Sale a transaction wherein a person sells securities which he
does not own yet. The
seller here is a mere speculator; he is selling securities which he is yet to
acquire, provided
however, that he has ownership of the securities at the time of delivery he
has the right to
transfer ownership. (See further discussion on p. 77).
RULES THAT GOVERN CAPITAL TRANSACTIONS:
1. Holding Period Rule
Under this rule, if the property has been held by the taxpayer for a period of
not more
than 12 months, the gain or loss is 100% recognized. If it is more than 12
months, the gain or
loss is 50% recognized.
So, the gain or loss may be 100% or 50% taxable deductible as the case may
be.
Example: You sell your personal car. This is a capital transaction because
the asset involved
is a capital asset. Let us say that you sell the car at P200,000 and the cost of
the car is P150,000.
Here, there is a gain of P50,000.
67
You must find out the date of the acquisition and the date of sale or
disposition. If the
date of acquisition and the date of sale fall within the 12 month period, this
P50,000 is P100,000
taxable. But if exceeding 12 months, this P50,000 is only tacable up to
P25,000. This is an
example of tax avoidance.
N.B. This rule is applicable only to individual taxpayers. This is so because
the capital gain
derived from capital transaction of corporate taxpayers is always 100%
recognized respective of
the number of months during which the property was in the possession of
the corp. taxpayer.
2. Capital Loss Limitation Rule
- meaning, capital losses are deductible only to the extent of capital gain
- so, it follows that there is no capital gain, there is no deductible losses.
- Capital loss cannot be deducted from capital gain
- Ordinary loss is deductible from ordinary gain.
N.B. This rule applies to individual and corporate taxpayers EXCEPT on
banks and trust
companies because they are considered as dealer in securities as far as
issuance of bond and
evidence of indebtedness are concerned.
Net Capital Loss Carry-over Rule
-meaning, the capital loss that may be carried over in the succeeding
taxable year must not
exceed the net income during the year that it was incurred.
Example: In 1996, the capital gain is P100,000 and capital loss is P200,000.
SO, there is a
capital loss of P100,000 which may be carried over in 1997 by the taxpayer.
This net capital loss
in 1996 may be claimed as deductions from the capital gain in 1997.
But if in 1996 the net income is P150,000 and the net capital loss is
P100,000, so the net
capital loss does not exceed the net income. Thus, the entire amount of
P100,000 net capital loss
can be carried over in 1997.
Can that P100,000 net capital loss be carried over in 1998?
NO, because the law says during the succeeding taxable year. Tax
exemption must be strictly
construed against the taxpayer and liberally in favor of the govt.
N.B. This rule applies to individual taxpayers.
In this regard, there is such a thing as no operating loss carry over.
OPERATING LOSS
are losses incurred in the course of trade or business of the taxpayer. Net
operating loss may be
carried over by the taxpayer, whether corporate or individual, to the next
three (3) consecutive
years provided that during that year, such taxpayer is not exempt from
taxation and there must be
no substantial change in ownership of the corporation, in the case of the
corporation. Substantial
change may arise if less than 75% of the outstanding capital stock or paid up
capital stock is held
by the same person.
68
Case: The BOI registered industries are allowed to carry over operating
losses. This time, those
losses that were incurred during that period of 16 years operation may be
carried over to
succeeding taxable year.
The rule that we have established is: expenses must be paid or
incurred during the
taxable year. You can claim those expenses as deduction during the year
when the same were
incurred or paid. The exception to this rule are net operating loss carry-over
and net capital loss
carry-over.
Meaning of Terms:
CAPITAL GAIN gain from sale or exchange of capital asset.
CAPITAL LOSS loss incurred from sale or exchange of capital asset.
NET CAPITAL GAIN excess of capital gain over capital loss.
NET CAPITAL LOSS excess of capital loss over capital gain.
Gains derived from dealings in property form part of Gross Income
(Sec. 32 A. no. 3)
- This may include sale or exchange of goods or properties.
- If the property is sold for cash, that is considered as sale.
- If it property for another property, this may be classified as exchange.
There may be a gain in regard to exchange of property if the
following concur:
1. The property received must have a fair market value;
2. The property disposed of must be substantially different from the property
received.
- So, a like kind transactions are not taxable transactions.
- If a land has been substantially improved and then it is exchanged with
another
land, that may not be taxable. However, there is that BIR ruling that this is
no
longer applicable even if these are like kind transactions, it may be taxable.
But
Prof. Geronimo of Ateneo disagreed. He said, you cannot change that by BIR
ruling. So, we can compromise that this will not apply to capital transactions
but
to ordinary transactions.
In determining the gain or loss in the sale or exchange of property, this is the
basic
formula:
Amount received or realized LESS Cost or adjusted basis.
How to determine the cost or adjusted basis?
*** It depends upon the manner of acquisition.
1. If it was acquired through purchase, it is the cost of the property.
69
Example:
I sell a property in the amount of P100,000. It is previously purchased the
same at P60,000, this
P60,000 is the cost of property.
2. If the property sold was previously acquired through inheritance,
it is the fair market
value (FMV) of the property at the time of the acquisition.
At the time of acquisition means at the time of the death of the
decedent or testator.
3. If the property sold was acquired through donation, the basis
shall be the same as if it
would be in the hands of the donor.
Situation:
A, the donor donated property to B, the donee. Subsequently, such donated
property was sold
by the donee for P200,000. What must be the cost?
Answer:
The law says, the same basis in the hands of the donor. So, the donee should
ask the donor the
basis.
It is also that A, the donor acquired the property from another either through
purchase or
donation. So, you should ask A, the last donor, his basis.
Exception to the general rule:
If the basis is greater than the FMV of the property at the time of the
donation/gift then, for the
purpose of determining loss, the basis shall be such FMV.
4. If the property sold was acquired for less than an adequate
consideration in money or
moneys worth, the basis of such property is the amount paid by the
transferee for the
property.
Situation:
The seller acquired the property from A in the amount of P70,000. The FMV
of said property is
P100,000. So, the seller here is the transferee and A is the transferor. The
seller sold the property
at P200,000. What must be the cost?
Answer:
It is the amount paid by the transferee. And the amount paid by the
transferee who subsequently
sold the property is P70,000. So, he will have a gain of P130,000.
*** Remember, it is not the FMV of the property but the amount paid bv the
transferee.
Suppose the property was acquired in a transaction where gain or
loss is not recognized?
the rule is still applicable in which case that is still tax exempt.
Question: So, if these properties acquired under this tax exempt
transactions are
subsequently disposed of, how will you determine the basis?
Answer: The basis of the stock or properties acquired under this no gain, no
loss
recognized shall be the same basis in the hands if the transferor.
Suppose the property was acquired under transactions where gain
is recognized and loss is
not recognized? (GAIN RECOGNIZED, LOSS NOT RECOGNIZED)
Transaction solely in kind this means that there are other consideration
given other than those
mentioned under transactions solely in kind (nos. 1 and 2 above, but cash is
added).
Example: Corp. A party merger or consolidation transfers its cash and
property to Corp. B,
also a party to such merger or consolidation.
Corp. B, in exchange, transfers its stocks to Corp. A.
Illustration:
Property and Cash
Property: P50,000
Cash: P50,000
Corp. A Corp. B P100,000
Stock FMV Stock: P100,000
Let us say that FMV of stock given by Corp. B is P100,000. The value of the
property transferred
by Corp. A is P50,000 while cash is also P50,000.
So if you add all of these, the amount received or realized is P200,000.
Now, you deduct the cost of the stock disposed of. Let us say that the cost of
stock is P80,000.
So, Corp. B derived gain of P120,000. Is this taxable?
Answer:
YES, but only P100,000 is the amount that is taxable. This is so because of
the limitation that it
must not exceed the total cash and the FMV of the property. And if you add
the FMV of the
property and the total cash given, the total is P100,000.
Under the law, there is that limitation in transactions which involves not only
the property but
also cash. The gain is recognized or taxable but the taxable gain must not
exceed the cash given
and the FMV of the property which forms part of the consideration.
72
On the other hand, supposed the cost of stock disposed of or transferred to
Corp. A is P250,000.
So, there is a loss of P50,000, is this recognized or deductible? NO.
beneficiaries.
TRUST is the right to the property, real or personal, exercised by one
person for the benefit of
another parties.
Parties to a Trust:
a. Trustor or grantor - one who created the trust
b. Trustee or fiduciary one who may hold the property for the benefit of
other person
known as beneficiary. Sometimes, the fiduciary is also the nbeneficiary.
c. Beneficiary
Estate may be the subject to tax, if it is under your administration. It may
only be
under administration or settlement if the properties of the decedent are
settled
under judicial settlement.
If the estate is under extra-judicial settlement, it is not subject to tax
because that
will not earn income considering that the heirs agreed to settle the estate
extrajudicially.
When we speak of judicial settlement, this may include estate or intestate
proceedings.
Trust may be subject to tax if the trust is irrevocable.
Non-taxable trust are:
1. Revocable Trust. The income here will be taxed in so far as the recipient
of the same is
concerned.
2. Employees Trust. If an employer establishes a pension trust for the
benefit of the employees,
that pension trust is not taxable.
The trust is revocable if the power to revest the title to the property
of the trust is vested:
1. in the grantor or in conjunction with other person who does not have the
substantial adverse
interest in the disposition of the property
2. in any person who does not have substantial adverse interest in the
disposition of the property.
In irrevocable trust, you cannot transfer or revest the title of the property.
No substantial interest in the disposition of the property he must not
be the
beneficiary.
If the properties of the estate is not invested in a business, so ten heirs
are just coowners
of the property, that is not taxable because co-ownership as a rule is not
taxable.
74
If the heirs decide to continue the business, such that the administrator
may
manage the same, that will become an unregistered taxable partnership.
Estate and trust may be taxed on the same manner and on the same
basis as in the
case of individual taxpayers. So, they may claim the deductions under
Section 34
as long as these deductions were paid or incurred in connection with the
business
of that estate or trust.
Estate and trust are entitled to personal exemptions P20,000.
SPECIAL DEDUCTIONS (this can be availed of only by estate and
trust):
1. In the case of intestate, the executor, or administrator may deduct the
income distributed to the
heirs during the particular year when such estate is still under settlement.
2. In the case of a trust, the income may be distributed to the beneficiaries
during that year may
also be deducted. The trustee or fiduciary may distribute the income or
accumulate the income.
The trustee has the discretion whether to distribute the income to the
beneficiaries during the
taxable year or to accumulate the same and distribute such income after the
lapse of certain
period of time or year. In the event that income of the trust is distributed to
the beneficiary, this
particular amount may also be claimed as deductions.
Questions: If there are two (2) trust created by one trustor or grantor, how
do we tax the
income of that trust?
Answer: Under the law, the taxable income of these two (2) trust must be
consolidated.
That trust should be taxed as if they constitute one trust.
Situation:
Grantor X created 2 trust. One is A trust created and the other is B trust.
There is only one
beneficiary named Y.
Let us assume that the taxable income of trust A is P10,000. The taxable
income of B
trust is P20,000. The total taxable income is P30,000. We will tax these 2
trust separately but
through consolidation.
In paying the tax after applying the applicable tax rate to the taxable income
of P30,000,
the tax due should be apportioned to trust A and B.
So, for purposes of income tax, the taxable income of these 2 trust should be
consolidated, but for purposes of paying the tax, the tax due should be
apportioned.
TRANSFER TAXES
Taxes may be imposed on onerous transmission of properties or on the
gratuitous
transmission of properties.
Transfer taxes that are imposed on the onerous transmission of
properties:
75
1. VAT (value-added tax)
2. Percentage Tax (excluded this 1998 Bar)
3. Excise Tax (also excluded)
CONTENTS OF THE BACK PAGES
DIVISION OF GROSS ESTATE:
1. INDIVIDUAL WHO DIED SINGLE
- G. E. includes all that he owns at the time of death
2. MARRIED DECEDENT
- his estate includes his exclusive properties and his shares in the conjugal
properties BUT NOT
the exclusive properties of the surviving spouse
PROPERTY OWNERSHIP bet. SPOUSES
- NCC before Aug. 3, 1988
> CPG
- EXCLUSIVE PROPERTY under N.C.C.
1. brought into the marriage as his/her own
2. acquired during the marriage by LUCRATIVE TITLE
3. acquired by RIGHT of REDEMPTION or EXCHANGE with other exclusive
properties
4. purchased with exclusive money
- CPG under N.C.C.
1. acquired by ONEROUS TITLE
- common fund
2. acquired by INDUSTRY/WORK, SALARY or either
3. FRUITS< RENTS or INTERESTS [conjugal/exclusive]
4. all properties not determined to be exclusive shall be presumed to be
conjugal
FAMILY CODE - after Aug. 3, 1988
- ACP
- EXCLUSIVE PROPERTY under the F.C.
1. gift, donation, contribution exclusively given to one of the spouses only
- gift and fruits/income considered exclusive
2. INHERITANCE given exclusively to one spouse
- gift or fruits/income considered exclusive
3. acquired of personal and exclusive use
- except JEWELRY
- obligations of the decedent contracted in good faith while still alive but
remains unpaid at the
time of death
UNPAID MORTGAGES OR INDEBTEDNESS RULES: (claimed as deductions)
1. the said mortgage/indebtedness must have been contracted during the
decedents
lifetime in good faith for an adequate and full consideration in money or
moneys worth
2. the value of the decedents interest in the property mortgaged is included
in the value of
the gross estate
77
- must be undiminished by said mortgage/indebtedness
3. must not include:
A. any income tax upon income received after the death of decedent
B. property taxes not accrued before his death
C. any estate tax
LOSSES fire, storm, shipwreck or other casualty, robbery, theft,
embezzlement
RULES:
1. must not be compensated by insurance
2. must have been incurred during the settlement of the estate BUT NOT
LATER than the last
day for the payment of the estate tax (6 mos.)
3. not claimed as deduction in an income tax return of the taxable estate
TAXES which are not DEDUCTIBLE
1. income tax or income received after death
2. property taxes not accrued before death
3. estate tax
COMPUTATION of VANISHING DEDUCTION FORMULA:
INITIAL BASIS
GROSS ESTATE X E. L. I. T. and transfers for public purposes
SHARE OF SURVIVING SPOUSE
RULES:
1. the gross conjugal estate shall be diminished by expenses and charges
EXCEPT those
chargeable to the exclusive properties
2. the NET amount shall be divided into two (2)
3. goes to the surviving spouse and deducted from the estate of the
decedent
ALLOWABLE DEDUCTIONS
- NON-RESIDENT DECEDENT [ELIT-TVS]
1. ELIT (expenses, losses, indebtedness, taxes)
FORMULA:
PHIL. GROSS ESTATE
WORLD GROSS ESTATE x E L I T
RULE ON RECIPROCITY the foreign country of that NRD does not impose
or allows
exemption on tax on the properties of the citizens of the Phils. who died in
that foreign country.
The phrase does not impose and allows exemption are different from
each other.
When we say does not impose, this means totally exempt. Allows
exemption means
this may not cover all properties but only certain properties.
Case:
82
Country of Morocco has no international personality. If it grants exemptions
to the
intangible personal properties if Filipino citizens who died in that country, will
you apply also
that rule on reciprocity?
Held: YES. It does not matter whether the country has international
personality or not. What is
important is it allows or grants exemption from estate tax.
Sec. 85, Gross Estate The value (FMV) of the gross estate of the
decedent shall be
determined by including the value, at the time of his death, of all property,
real or personal,
tangible or intangible, wherever situated: Provided, however, That in the
case of a non-resident
decedent who at the time of his death was not a citizen of the Philippines,
only that part of the
entire gross estate which is situated in the Philippines shall be included in his
taxable estate.
The composition of the gross estate may include:
1. Decedents Interest. (includes yields, fruits and interest)
- The gross estate may include the fruits and income of the properties and
that may
constitute the decedents interest.
- In the case of parcel of land, it may produce income in the form of harvest
which
harvest may form part of the gross estate.
- In the case of apartment, the rental of such apartment should also be
included, not
only the value of the property.
- Dividends
- Partnership profits
- Rights of usufruct
2. Transfer by virtue of general power of appointment
- It implies that if the transfer is made under special power of appointment
that
So, if B died and the property is transmitted to C, his heir, that property is
also considered
as exclusive property of C because it was acquired through inheritance.
Can C claim vanishing deductions?
Answer:
NO, because this had already been claimed by B. You can only claim
vanishing deduction
once.
It is impossible that B acquired the property not through inheritance but
through
donation. Donors tax had already been paid. This is an exclusive property of
B because
under the law, property acquired during the marriage by gratuitous title is an
exclusive
property and forms part of his gross estate.
Can we apply this vanishing deduction?
YES. Here, B must have died within the 5-year period from the date of
donation.
Acquisition and transmission exempt from estate tax are:
a. The merger of usufruct in the owner of the naked title
b. Transmission or delivery of the inheritance or legacy by the fiduciary heir
or legatee of
the fideicommisssary.
c. Transmission of the property from the first heir, legatee or donee in favor
of another
beneficiary, in accordance with the desire of the predecessor.
d. Bequests, devises, legacies or transfers to social welfare, cultural and
charitable
institutions, no part of the net income of which inures to the benefit of any
individual and
87
not more than 30% of said bequests, devises, legacies or transfers be used
by such
institutions for administrative purposes.
So, transfers to non-stock, non-profit educational institution is not exempt
from estate tax
because this is not included from the enumeration BUT exempt from donors
tax.
2. Transfer For Public Use
The donee must be the government or any political subdivision. It must be
used
exclusively for public use.
The transfer must be done orally but testamentary disposition and must be
at its present
value.
3. Other Charges Against The Exclusive Property
So, if the property has been mortgaged with a bank, we consider that as
unpaid mortgage.
4. Encumbrance On Exclusive Property
VALUATION OF THE GROSS ESTATE: valuation as of the time of death
1. Real Property
The FMV equivalent to the value as determined by the BIR or zonal value OR
that of the
value as determined by the provincial or city assessor whichever is higher.
2. Personal Property
a. Tangible Personal Property if not being sold; pawn value x 3; The FMV is
equivalent to
the selling price of the property. (Brand new items)
b. Intangible Property includes interest, shares of stock
- It must be the FMV of the interest or shares of stock.
- If the intangible personal property is account receivable, it should be
Principal
PLUS interest unpaid upon the death of the decedent except if worthless)
- If it is in the nature of usufruct, we must take into consideration the basic
standard
of mortality rate.
- American tropical experience table
- IF LISTED mean or ave. value between the highest and lowest stock
quotation
- IF NOT LISTED BOOK value
DONORS TAX
DONORS TAX is an excise tax because what is being tax here is the right
or privilege to
transmit or dispose of property gratuitously in favor of another.
- Tax imposed on the privilege of transmitting property by and living person
to
another by way of donation
- Prevents avoidance of estate tax
PURPOSE OF DONORS TAX:
1. The primary purpose is to raise revenue;
88
2. To supplement income tax and estate tax.
DONATION the act of liberality whereby a person disposes gratuitously of
a THING or a
RIGHT in favor of another who accepts it.
DONATIONS SUBJECT TO DONORS TAX
- trust or not
- real or personal
- tangible or intangible
1. Indirect donation Example: Cancellation of indebtedness
2. Direct donation
Donors tax applies to both natural and juridical persons
The law says, donors tax apply whether the transfer is in trust or
otherwise. So,
property held in trust may be the subject of donation. But, this contemplates
of a
transfer where the dominion, the right over such property, use, enjoyment of
the
same other rights, must all be transferred to the donee so that it will
constitute as
taxable donation.
Read Section 104.
CHARACTERISTICS OF VALID DONATION: [F, A, C, I, D]
1. It must be given during the lifetime of the donor.
2. It must be irrevocable.
3. It must comply with the formalities of donation.
4. Acceptance of the donee.
REQUISITES OF VALID DONATION
1. It must comply with the formalities of donation.
- If the amount of personal property is P5,000 or less, the donation may be
made
orally.
- If the amount of personal property is more than P5,000 the acceptance
shall be in
writing.
- Donation of real property must be made in a public instrument irrespective
of the
amount
2. Acceptance by the donee of the donation.
- Acceptance must be made during the lifetime of the donor.
- If the amount of personal property is P5,000 or less, acceptance may be
made
orally.
- If the amount of personal property is more than P5,000, the acceptance
shall be in
writing.
- In the case of donation of real property, acceptance must be made in the
same
deed of donation or in a separate public instrument.
3. Capacity of the donor and the donee:
a. Those made between persons who were guilty of adultery or concubinage
at the time of
the donation.
89
b. Those made between persons found guilty of the same criminal offense, in
consideration
thereof;
Situation: Suppose the watchman or security guard and his family live in
that place or
building where smuggled goods are stored can there be seized without
search warrant? Can we
consider that a dwelling place?
Answer: No, that will make the building a dwelling place. Even if it is outside
of its district
such that it came from Zamboanga and was unloaded at Cebu, the collector
of Cebu may still
seize the goods. What is only required is that it came from a port of entry
within the Phils.
2. Enforcement of the Tariff and Customs Law including other laws and
regulation affecting the
administration of Tariff laws.
3. Recommend to the Sec. of Finance needed rules and regulations
necessary for the effective
enforcement of the provisions of the TCC.
4. Assessment and collection of lawful revenues from imported articles. Also,
assessment and
collection of fines, penalties, fees and other charges accruing under the
provisions of the TCC.
5. It has the exclusive and original jurisdiction over Seizure and forfeiture
cases. Meaning, to the
exclusion of regular courts.
Articles subject to Customs duties:
Articles means wares, merchandise, goods and anything which may be made
subject of
importation or exportation. Articles include Philippine money. So, if the
Philippine money is
transmitted or taken out of the Phils. without authority from the Central
Bank, that may be the
subject matter of seizure.
Articles subject to Customs duties:
1. Dutiable articles are articles subject to Custom duties
2. Prohibited articles:
a. Absolutely prohibited articles: (SWING)
93
1. those prohibited by Special Laws
2. Weapons of War
3. Insidious, obscene or immoral articles
4. Narcotic or prohibited drugs
5. Gambling devices
b. Qualifiedly prohibited meaning subject to restrictions or limitations. IF
these
limitations are not complied with. They will be prohibited.
3. Duty free imported articles these are articles not subject to custom
duties.
These are: (MASARAP)
a. Medals, badges used as trophies or awards
b. Animals and plants for experimental purposes
c. Sample articles
d. Aquatic resources
e. Repair materials
f. Articles necessary for the take-off and landing of an airplane or for safe
navigation of vessels
g. Articles for Public exposition. Included here are historical books and
personal
household effects
Customs duties may be classified as:
1. Regular or ordinary custom duties these are the ad valorem tax and
specific tax.
For purposes of determining the ad valorem tax, the basis must be the home
consumption
value. Home consumption value is the price stated in the commercial,
trade or sales invoice. If
there is a reasonable doubt as to this value, recourse may be had to the
commercial and revenue
attach report, the BOC should refer to the available information that may
help the BOC
determine the applicable ad valorem tax.
Case: NCR-Japan has a subsidiary in the Phils. which is NCR-Phil. Ten adding
machines were
imported from NCR-Japan and they used, for purposes for determining ad
valorem, the home
consumption value, the price stated in the sales invoice. Instead, we should
refer to the
commercial revenue attach report to determine the basis of that ad valorem
tax.
2. Special custom duties: (DCMD)
a. Dumping duties
b. Countervailing duties
Note: The purpose of dumping and countervailing duties is to
protect our local products
against unfair foreign competition
c. Marking duties the purpose of this is to prevent possible public
deception.
d. Discriminatory duties duties which are imposed for the purpose of
protecting our
national interest
94
Protest: The issue here is the validity of the assessment or collection, or the
validity of the
classification of articles where customs duties are imposed.
PROCEDURE IN PROTEST
Remedy Where to file [Issues which may
be raised]
Prescriptive Period
(1) File a protest Collector of
Customs
(a) Validity if the
assessment or
collection
(b) Validity of
classification of
articles
15 days from the
payment of Customs
duties
(2) If protest is
denied, Appeal
collectors ruling
Customs
Commissioner
(CC)
Questions of fact or
Question of law
Within 15 days
from receipt of the
Collectors ruling
(3) If CC affirm
collectors ruling,
Appeal
CTA
Question of fact or
Question of law
Within 30 days
from receipt of the
decision of the CC.
99
(4) If CTA affirm
collectors ruling,
Appeal
CA
Question of fact or
Question of law
Within 15 days
100
No substantial interest in the disposition of the property he must not
be the beneficiary.
If the properties of the estate is not vested in a business, so the heirs are
just co-owners of the
property, that is not taxable because co-ownership as a rule is not taxable.
If the heirs decide to continue the business, such that the administrator
may manage the same,
that will become an unregistered taxable partnership.
Estate and trust may be taxed on the same manner and on the same
basis as in the case of
individual taxpayers. S, they may claim the deductions under Section 34 as
long as these
deductions were paid or incurred in connection with the business of that
estate or trust.
Estate and trust are entitled to personal exemptions to P20,000.
SPECIAL DEDUCTIONS (this can be valid of only by estate and trust):
3. In the case of estate, the executor or administrator may deduct the
income distributed to the
heirs during the particular year when such estate is still under settlement.
4. In the case of trust, the income may be distributed to the beneficiaries
during that year also be
deducted. The trustee or beneficiary may distribute the income or
accumulate the income. The
trustee has the discretion whether to distribute such income after the lapse
of certain period of
time or year. In the event that income of the trust is distributed to the
beneficiary, this particular
amount may also be claimed as deductions.
Question:
If these are two (2) trust created by one trustor or grantor, how do we tax
the income of
that trust?
Answer:
Under the law, the taxable income of these two (2) trust may be
consolidated. That trust
should be taxed as if they constitute one trust.
Situation:
Grantor X created 2 trust. One is A and the other is B. There is only one
beneficiary
named Y.
Let us assume that the taxable income of trust A is P10,000. The taxable
income of B
trust is P20,000. The total taxable income is P30,000. We will tax these 2
trust separately but
through consolidation.
In paying the tax after applying the applicable tax rate to the taxable income
of P30,000,
the tax due should be apportioned to trust A and B.
So, for purposes of income tax, the taxable income of these 2 trust should be
consolidated, but for purposes of paying the tax, the tax due should be
apportioned.
TRANSFER TAXES
Taxes may be imposed on the onerous transmission of properties or
on the
gratuitous transmissions of properties.
101
Transfer taxes that are imposed on the onerous transmission of
properties:
1. VAT (value-added tax) (excluded this 2000 Bar)
2. Percentage Tax (also excluded)
3. Excise Tax (also excluded)
Transfer taxes imposed on gratuitous transmission of properties
are:
1. Estate Tax
2. Donors Tax
ESTATE TAX tax imposed on the right or privilege to transmit properties
upon death of the
decedent or testator.
DONORS TAX tax imposed on the right or privilege to transmit properties
gratuitously in
favor of another who accepts the same. This transmission of properties
occurs during the lifetime
of the donor and the donee.
ESTATE TAX
NATURE OF ESTATE TAX
It is an excise tax since the subject of the tax is the right or privilege to
transmit
properties and not the property itself.
PURPOSES OF ESTATE TAX:
1. The primary purpose is to raise revenue in order to support the
government;
2. To supplement income tax;
3. To reduce excessive inequalities in wealth; meaning, to achieve social
equality.
KINDS OF ESTATE TAXPAYER:
1. Resident estate taxpayer includes citizen of the Phils., resident alien
who died in the Phils.,
and such alien, at the time of his death, is a resident of the Phils.;
2. Non-resident estate taxpayer is limited to non-resident alien
individual.
The phrase does not impose and allows exemtion are different from each
other.
When we say does not impose, this means totally exempt. Allows
exemption means
this may not cover all properties but only certain properties.
Case:
Country of Morocco has no international personality or not. What is important
is it allows
or grants exemption from estate tax.
Sec. 85. Gross Estate. The value of the gross estate of the decedent
shall be determined by
including the value, at the time of his death, of all property, real or personal,
tangible or
intangible, wherever situated. Provided, however, That in the case of a nonresident decedent
who at the time of his death was not a citizen of the Philippines, only that
part of the entire gross
estate which is situated in the Philippines shall be included in his taxable
estate.
The composition of the gross estate may include:
1. Decedents Interest.
- The gross estate may include the fruits and income of the properties and
that may
constitute the decedents interest.
- In the case of parcel of land, it may produce income in the form of harvest
which
harvest may form part of the gross estate.
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- In the case of apartment, the rental on such apartment should also be
included, not
only the value of the property.
2. Transfer by virtue of general power of appointment
- It implies that if the transfer is made under special power of appointment
that
should be excluded from gross estate.
- The general power of appointment, the power is exercisable or in favor of
the
estate, executor, administrator or a creditor of the estate. If the power is
exercisable other than these (estate, administrator or creditor of the estate),
that
may be considered as special power of appointment.
3. Revocable Transfer
- Irrevocable transfer should be excluded from gross estate.
- Revocable transfers are transfers which are subject to alteration,
termination,
amendment or modification by the decedent.
Question:
So, if B died and the property is transmitted to C, his heir, that property is
also considered
as exclusive property of C because it was acquired through inheritance.
Can C claim vanishing deduction?
Answer:NO, because this had already been claimed by B. You can only claim
vanishing deduction
at once.
If it is impossible that B acquired the property not through inheritance but
through
donation. Donors tax had already been paid. This is an exclusive property of
B because under
the law, property acquired during the marriage by gratuitous title is an
exclusive property and
forms part of his gross estate.
Can we apply this vanishing deduction?
YES. Here, B must have died within 5-year period from the date of donation.
Acquisitions and transmissions exempt from estate tax are:
1. The merger of usufruct in the owner of the naked title
2. Transmission or delivery if the inheritance or legacy by the fiduciary heir or
legatee to the
fideeeicommissary.
3. Transmissions of the property from the first heir, legatee or donee in favor
of another
beneficiary in accordance with the desire of the predecessor.
4. Bequests, devises, legacies or transfers to social welfare, cultural and
charitable institutions,
no part of the net income of which inures to the benefit of any individual and
not more than 30%
of said bequests, devises, legacies or transfers shall be used by such
institutions for
administrative purposes.
2. Transfer for Public Use
- The donee must be the government or any political subdivision. It must be
used
exclusively for public use.
3. Other Charges Against the Exclusive Property
- So, if the property has been mortaged with a bank, we consider that as
unpaid mortgage.
4. Encumbrance on Exclusive Property
VALUATION OF THE GROSS ESTATE:
1. Real Property
The FMV equivalent to the value as determined by the BIR or zonal value
and that of the
value as determined by the provincial or city assessor whichever is higher.
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2. Personal Property
a. Tangible Personal Property The FMV is equivalent to the selling price
of the
property.
b. Intangible Personal Property includes interest, shares of stock.
- it must be the FMV of the interest or shares of stock
- If the intangible personal property is account receivable, it should be
Principal
PLLUS interest unpaid upon the death of the decedent.
- If it is in the nature of usufruct, we must take into consideration the basic
standard
of mortality rate.
TAX REMEDIES
According to the SC, government and taxpayers must stand on reasonably
equal
terms.
Basically, the remedies that may be availed of by the Government or the
taxpayer
may be grouped into:
a. Administrative remedies
b. Judicial remedies
If the tax law is silent on administrative remedies, the government may
still avail
of the usual administrative remedies such as Distraint of personal property,
or
Levy on real property. But that may be resorted to by the government in the
collection of taxes are:
a. Distraint of personal property
b. Enforcement of tax lien
c. Levy on real property.
- Distrain and levy can only be done if notice is given.
If the tax law is silent on administrative remedies, the taxpayer may still
avail of
the usual administrative remedies of protest and refund for purposes of
convenience and expediency.
If the tax law is explicit on administrative remedies, the taxpayer must
observe the
principle of exhaustion of administrative remedies. Under the Tax Code, if an
assessment is made by the BIR, the remedy of the taxpayer is to protest first
the
assessment. It is the decision of the BIR on that disputed assessment that is
being
appealed to the CTA.
In claiming for tax refund, the taxpayer have to file first a written claim for
refund
with the BIR Commissioner.
5. There is right of redemption within 1 year from the date of sale plus 15%
interest.
6. There is no such remedy as constructive levy of property.
Constructive Distraint can only be resorted to under the following
situation: Code:
C.A.R.L.)
1. When a taxpayer cancels or hides his property
2. If he performs any act which will obstruct the collection efforts of the BIR
3. If he is retiring from business subject to tax
4. When he is about to leave the Philippines
Enforcement of the tax lien:
If the taxpayer failed despite receipt of notice to pay the BIR, a lien is
created
against the properties of the taxpayer.
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It is the discretion of the BIR to avail itself of remedies which may result in
the
expeditious collection of taxes.
Case: Which is preferred, the claim of the government arising from tax lien
or the claim of the
workers predicated on the judgment rendered by the NLRC?
Held: The claim of the government arising from tax lien is superior to the
claim of a private
litigant predicated on a judgment.
Exception: The claim of the laborers may be superior under Art. 110 of the
Labor Code when
the employer was declared bankrupt of judicial liquidation.
*In observing the provisions of the tax code in regard to distraint or levy,
the BIR
cannot apply or invoke the presumption of regularity in administrative
proceedings.
So, if the procedure had been questioned by the taxpayer, it is not for the
taxpayer to prove that the procedures under the NLRC in regard to distraint
on
levy had been complied with.
Revenue taxes are self-assessing taxes.
Requisites of Assessment:
1. Written notice stating that the amount is due as tax.
2. Written notice must contain a demand for the payment of such tax.
Assessment is not a condition sine qua non for purposes of collecting
taxes. This
is so because demand is not required. The rule under Art. 1169 of the NCC
that
demand is required before a person may incur in delay cannot be applied.
Taxpayer incurred in delay if he fails to pay the tax on date fixed by Tax
Code.
fraudulent
a. Return was file but
there exist a
deficiency
b. Return was filed but
no payment has
been made
3 years from the date of
actual filing. If it was filed
earlier than the date fixed
by the Tax Code.
COLLECTION: Within 3
years from the date of
assessment
3 years from the date of
actual filing or from the
last day fixed by law for
filing such return.
II.
Failure/Falsify/Fraudulent
a. Intentional failure to
file a return
b. False return
c. Fraudulent return
10 years from the
discovery of such omission
of failure, falsity or fraud
COLLECTION: 3 years
from the date of assessment.
Taxes may be collected
even without prior
assessment and prescriptive
period is 10 years from the
discovery of failure or
omission, falsity or fraud.
Notes: The rule is if prior assessment has been made, the BIR can avail of
the
administrative and judicial remedy. But if without prior assessment, the BIR
can only avail of the
judicial remedies.
Return must be the one prescribed by the BIR. SO, if you file your Books of
Accounts in lieu of that return, that does not constitute return.
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PRINCIPLES GOVERNING THE FILING OF AN ACTION FOR COLLECTION
BY THE BIR
Collection is proper under the following situations:
to run from the date final notice or demand has been served upon the
taxpayer.
As regards violation of the Tax Code, if the violation is known the 5-year
prescriptive period shall commence to run from the date of the discovery of
the
violation and the institution of judicial proceedings for investigation and
punishment. The law uses the conjunction and. So, it will commence to run
only from the time the BIR referred the case to the Fiscals Office or City
Prosecutor. In effect, it is always in the control of the BIR.
REMEDIES OF THE TAXPAYER
BEFORE PAYMENT, the taxpayer may dispute or protest the assessment. He
ma also invoke the
power of the BIR Commissioner to compromise tax liability.
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If you RECEIVED AN ASSESSMENT by the BIR, the remedies are:
a. File a request for reconsideration of the assessment or this is a claim for
re-evaluation of
the assessment based on the existing records.
b. File a request for investigation of the assessment --- it is also a claim for a
re-evaluation
of the assessment on the basis of newly discovered evidence, or additional
evidence that
the taxpayer intends to present in the reinvestigation.
WHERE TO FILE: (a) & (b) >>>>> BIR Commissioner
ISSUES which may be raised >>>>> Question of law or fact
or both questions of law and fact
WHEN >>>>>>>>>>>>>>>>>>>>>>> Within 30 days from
receipt of such assessment
IF the request for investigation or reconsideration has been denied
by the BIR:
1. File a motion for reconsideration of the decision with the BIR; OR
2. Appeal the decision with the CTA.
*** Motion for reconsideration must raise new grounds, meaning grounds
which have not been
raised in that request for reconsideration or reinvestigation. Otherwise, it is
just a pro-forma
motion, it will not suspend the period within which to appeal the BIR decision
to the CTA which
is 30 days from receipt of the BIR decision.
ISSUES that may be raised on appeal with the CTA >>> Questions of
Law or fact OR both
If CTA affirms the decision of the BIR:
Appeal the CTA decision to CA.
ISSUES >>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Questions of law
WHEN >>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Within 15 days
from receipt of the
CA decision
The taxpayer may, instead of filing a protest, file a written claim for refund.
REQUISITES FOR FILING REFUND:
1. This must be filed within the two (2) year period from the date of
payment;
2. The fact of withholding must be proven;
3. This must be included in the income tax return of the taxpayer;
4. It must be shown that the payment or the amount stated in the return was
received by the
government.
WHERE TO FILE REFUND: --- BIR
ISSUES: --- Questions of law or fact OR
--- both OR
--- the taxes are illegally or erroneously collected
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ILLEGALLY COLLECTED TAX vs. ERRONEOUSLY COLLECTED TAX:
Illegally collected tax means it violates certain provision of the law. It may
not be
authorized by a peculiar Tax Law or statute.
Erroneously collected tax means there may be a law passed but there
was a mistake in
the collection.
WHEN TO FILE: Within 2 years from the date of payment
> Payment must be proven in contemplation of Tax Law, there is payment
when the tax liability
is fully paid. So, if it is payable in installment, there can only be payment
when the final
installment has been paid.
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