Professional Documents
Culture Documents
others;
(7) proprietors, operators, or keepers of hotels, motels, rest houses, pension houses,
who transport goods or cargoes for hire and other domestic common carriers by
land relative to
(12) common carriers by air and sea relative to their transport of passengers, goods
or
cargoes from one place in the Philippines to another place in the Philippines;
television broadcasting and all other franchise grantees, except franchise grantees of
radio
and/or television broadcasting whose annual gross receipts of the preceding year do
not exceed
Ten Million Pesos (P10,000,000.00), and franchise grantees of gas and water
utilities;
(15) non-life insurance companies (except their crop insurances), including surety,
(16) similar services regardless of whether or not the performance thereof calls for
the
(1) The lease or the use of or the right or privilege to use any copyright, patent,
design
or model, plan, secret formula or process, goodwill, trademark, trade brand or other
like
property or right;
(2) The lease or the use of, or the right to use any industrial, commercial or scientific
equipment;
information;
(4) The supply of any assistance that is ancillary and subsidiary to and is furnished
as a means of enabling the application or enjoyment of any such property, or right as
is mentionedin subparagraph (2) hereof or any such knowledge or information as is
mentioned in subparagraph (3) hereof;
the use of property or rights belonging to, or the installation or operation of any
brand,
machinery or other apparatus purchased from such nonresident person;
(7) The lease of motion picture films, films, tapes, and discs; and
(8) The lease or the use of, or the right to use, radio, television, satellite transmission
clarifies certain issues raised relative to the processing of claims for Value-Added
Tax (VAT) credit/refund, including those filed by direct exporters with the Tax and
Revenue Group, One-Stop Shop Inter-Agency Tax Credit and Duty Drawback Center
of the Department of Finance.
In BIR Ruling No. DA32007, dated May 31, 2007, the Bureau of
Internal Revenue (BIR) even provides the requisite criteria for
identifying lending investors, to wit: (a) one must be engaged in the
business of lending money for themselves or others at interest; and (b)
the lending of money must be carried on with a view to profit or
livelihood. Citing its pronouncement in a previous issuance, the BIR
ruled that where the taxpayer is not engaged in the practice of lending
money, and that the lending of money for an interest is not pursued as a
business activity or to generate income, but merely to provide financial
support to its affiliates, the lender should not be deemed as a lending
investor within the contemplation of Section 108 of the Tax Code.
The CTA subscribes to the view that as long as the entity provides
service for a fee, remuneration or consideration, the same is subject to
VAT, regardless of whether it received payments for services rendered
to affiliates on a reimbursementoncost basis. Thus, it is a small
wonder that the loan assistance extended by company engaged in
managing, promoting, administering or assisting in any business or
activity of another corporation or entities, is summarily treated as
incidental to the main business, subject to VAT.
Clearly, the BIR acknowledges the fact that an interest is charged on
cash advances so that the transactions will be considered as at arm's
length pursuant to Revenue Memorandum Order No. 6399, dated July
19, 1999. However, the sweeping pronouncement of the CTA can just
as well result to a turnabout by the BIR from its current position,
should the decision attain finality.
In the meantime, taxpayers will continue to rely on prevailing rules,
regulations and BIR rulings for the proper observance of VAT laws.
SEC. 4.1084. Definition of Gross Receipts. “Gross receipts” refers
to the total amount of money or its equivalent representing the contract
price, compensation, service fee, rental or royalty, including the amount
charged for materials supplied with the services and deposits applied as
payments for services rendered and advance payments actually or
constructively received during the taxable period for the services
performed or to be performed for another person, excluding VAT.
“Constructive receipt” occurs when the money consideration or its
equivalent is placed at the control of the person who rendered the
service without restrictions by the payor. The following are examples
of constructive receipts:
(1) deposit in banks which are made available to the seller of services
without restrictions;
(2) issuance by the debtor of a notice to offset any debt or obligation
and acceptance thereof by the seller as payment for services rendered;
and
(3) transfer of the amounts retained by the payor to the account of the
contractor.
renewable sources of energy, and shall not extend to the sale of services
related to the maintenance or operation of plants generating said power.
“SEC. 4.1084. Definition of Gross Receipts. – ‘Gross receipts’
refers to the total amount of money or its equivalent representing the
contract price, compensation, service fee, rental or royalty, including
the amount charged for materials supplied with the services and
deposits applied as payments for services rendered and advance
payments actually or constructively received during the taxable period
for the services performed or to be performed for another person,
excluding the VAT, except those amounts earmarked for payment to
unrelated third (3rd ) party or received as reimbursement for advance
payment on behalf of another which do not redound to the benefit of
the payor.
A payment is a payment to a third (3rd) party if the same is made to
settle an obligation of another person, e.g., customer or client, to the
said third party, which obligation is evidenced by the sales
invoice/official receipt issued by said third party to the obligor/debtor
(e.g., customer or client of the payor of the obligation).
An advance payment is an advance payment on behalf of another if the
same is paid to a third (3rd) party for a present or future obligation of
said another party which obligation is evidenced by a sales
invoice/official receipt issued by the obligee/creditor to the
obligor/debtor (i.e., the aforementioned “another party”) for the sale of
goods or services by the former to the latter.
For this purpose ‘unrelated party’ shall not include taxpayer’s
employees, partners, affiliates (parent, subsidiary and other related
companies), relatives by consanguinity or affinity within the fourth (4th
) civil degree, and trust fund where the taxpayer is the trustor, trustee or
beneficiary, even if covered by an agreement to the contrary.
‘Constructive receipt’ occurs when the money consideration or its
equivalent is placed at the control of the person who rendered the
service without restrictions by the payor. The following are example s
of constructive receipts:
(1) deposits in banks which are made available to the seller of
services without restrictions;
(2) issuance by the debtor of a notice to offset any debt or
obligation and acceptance thereof by the seller as payment
for services rendered; and
(3) transfer of the amounts retained by the payor to the account
of the contractor.”
BIR Ruling No. 19589, Sept. 8, 1989
“The term “gross receipts” means all amounts received by the prime or
principal contractor as the total contract price, undiminished by any
amount paid to the subcontractor under a subcontractor arrangement”
VAT Ruling No. 11188, April 25, 1989
Basis of the 10% value added tax prescribed in Section 102 of the Tax
Code, as amended by Executive Order 273, is the gross receipts of the
person rendering service. The value added tax is computed on the total
composition of billings i.e., due to employees, due the government,
depreciation of equipment (billed to clients), supplies, and
administrative overhead.
VAT Ruling No. 20590
The managed company shoulders the expenses incurred in connection
with the abovementioned services and pays an agreed management fee
out profit, the company does not receive any fee.
It is defined on Sec. 2(m) of Revenue Regulations No. 587 that “gross
receipts” as the total amount of money or its equivalent representing the
contract price, compensation or service fee, including the amount
charged for materials supplied with the service and deposits or advance
payments actually or constructively received during the taxable year.
The following payments are subject ot the 10% VAT:
1. management fee;
2. expenses in connection with the services rendered; and
3. reimbursement by the managed company of the salary and fringe
benefits (SSS, Medicare, pension/ retirement) paid to the Chief
Operating Officer assigned to the managed company, the latter
being an employee of the company.
AMOUNTS EARMARKED FOR PAYMENT TO THIRD
PARTIES
Sec. 4.1084 Rev. Regs. No. 162005, Sept 1, 2005
BIR Ruling No. DA0692006
REIMBURSEMENT OF EXPENSES
Sec. 4.1084 Rev. Regs. No. 162005, Sept 1, 2005
VAT Ruling No. 28388, July 4, 1988
Service billing as a customer broker covers the following:
1. Advances for expenses payable to government entitles and/or
government controlled corporations.
2. Advances for trucking, transportation, petty, representations and
other miscellaneous expenses related to shipping.
3. Brokerage fee
It is represented that items #1 and #2 above are mere advances that are
subject to reimbursement and therefore not covered by VAT.
Aforesaid transactions the brokerage fee is subject to VAT; whereas
advances indicate under #1 and #2 are exempt from Vat provided that;
1. You issue a VAT invoice/receipt corresponding to the amount of
brokerage fee;
2. The advances are billed separately and nonVAT receipt is issued
to your client for the total amount advanced;
3. Each person or entity who directly renders service to your client
for whom you advanced the payment, shall issue a receipt/
invoice in the name of your client.
4. For liquidation purposes, you may attach the original copy of all
invoices/receipts issued in the name of your client to your non
VAT receipt reflecting the total amount being reimbursed to you
VAT Ruling No. 8788 April 14, 1988
Requesting information on the applicability of the value added tax on
the following businesses:
1. Review classes for nursing, CGFNS, nutrition and midwifery;
2. Recruitment services; and
3. General merchant.
All the abovementioned activities are subject to VAT pursuant to
Sections 100 and 102 of the Tax Code, as amended by E. O. No. 273.
For tax credit purposes, the input taxes for the purchase of goods for
use as supplies in connection with trade or business or as material s in
the sale of services can be claimed against your output law.
In the computation of the VAT on recruitment services, the basis of the
tax is the amount of placement fee which will not include
reimbursement of expenses which shall be limited to fees for
passport/visa, medical examination, clearances and inoculation
provided that these expenses are supported by receipts issued by the
supplying company or government agency in the names of the
applicant. On the other hand, the agency is required to pay the 10%
VAT on the entire amount of placement fee if the abovementioned
reimbursable expenses are supported by receipts issued in the name of
the agency.
VAT Ruling No. 9788, April 15, 1988
Requesting on the proper computation of the value added tax in the
service income of the contractual or temporary staff. Inasmuch as the
company provides services to different client *GROSS SALARY,
*FEES INCLUDNG THE AMOUNT, *THE SERVICE and subject
to the 10% velue added tax under Sec. 102 of the NRC, as amended by
E.O. No. 273.
The Bureau has issued several rulings exempting from income tax the assessments/
charges collected by condominium corporations from its members, on the ground that the
collection of association dues and other assessments/charges are merely held in trust to be
used solely for administrative expenses in implementing its purposes i.e., to operate,
manage and maintain the condominium project, to defray the costs of the condominium,
and from which a condominium corporation could not realize any gain or profit as a
result of its receipt thereof.
In addition, the same rulings exempted association dues from value-added tax for the
reason that a condominium corporation does not sell, barter, exchange, nor lease any
goods or property and neither does it render any service for a fee, but merely implements
the administration of the required services to collect the association dues from the unit
owners pursuant to its corporate purpose(s) as trustee of the fund thereof.
I. Income Tax -- The amounts paid in as dues or fees by members and tenants of a
condominium corporation form part of the gross income of the latter subject to income
tax. This
is because a condominium corporation furnishes its members and tenants with benefits,
advantages, and privileges in return for such payments. For tax purposes, the association
dues, membership fees, and other assessments/charges collected by a condominium
corporation constitute income payments or compensation for beneficial services it
provides to its members and tenants. The previous interpretation that the assessment dues
are funds which are merely held in trust by a condominium corporation lacks legal basis
and is hereby abandoned.
Moreover, since a condominium corporation is subject to income tax, income payments
made to it are subject to applicable withholding taxes under existing regulations.
II. Value-Added Tax (VAT) – Association dues, membership fees, and other
assessments/charges collected by a condominium corporation are subject to VAT since
they constitute income payment or compensation for the beneficial services it provides to
its members and tenants.
Section 105 of the National Internal Revenue Code of 1997, as amended, provides:
"SECTION 105. Persons Liable. — Any person who, in the course of trade or business, sells, barters,
exchanges, leases goods or properties, renders services, and any person who imports goods shall be subject
to the value-added tax (VAT) imposed in Sections 106 to 108 of this Code.
xxx
The phrase 'in the course of trade or business' means the regular conduct or pursuit of a commercial or an
economic activity, including transactions incidental thereto, by any person regardless of whether or not the
person engaged therein is a nonstock, nonprofit private organization (irrespective of the disposition of its
net income and whether or not it sells exclusively to members or their guests), or government entity.”
(Emphasis supplied)
“(E)ven a non-stock, non-profit organization or government entity, is liable to pay VAT on the sale of goods
or services. VAT is a tax on transactions, imposed at every stage of the distribution process on the sale,
barter, exchange of goods or property, and on the performance of services, even in the absence of profit
attributable thereto. The term "in the course of trade or business" requires the regular conduct or pursuit of
a commercial or an economic activity, regardless of whether or not the entity is profit- oriented.
The definition of the term "in the course of trade or business" incorporated in the present law applies to all
transactions even to those made prior to its enactment. Executive Order No. 273 stated that any person
who, in the course of trade or business, sells, barters or exchanges goods and services, was already liable to
pay VAT. The present law merely stresses that even a nonstock, nonprofit organization or government entity
is liable to pay VAT for the sale of goods and services.
Section 108 of the National Internal Revenue Code of 1997 defines the phrase "sale of services" as the
"performance of all kinds of services for others for a fee, remuneration or consideration." It includes "the
supply of technical advice, assistance or services rendered in connection with technical management or
administration of any scientific, industrial or commercial undertaking or project."
On February 5, 1998, the Commissioner of Internal Revenue issued BIR Ruling No. 010-98 emphasizing
that a domestic corporation that provided technical, research, management and technical assistance to its
affiliated companies and received payments on a reimbursement-of-cost basis, without any intention of
realizing profit, was subject to VAT on services rendered. In fact, even if such corporation was organized
without any intention of realizing profit, any income or profit generated by the entity in the conduct of its
activities was subject to income tax.
Hence, it is immaterial whether the primary purpose of a corporation indicates that it receives payments for
services rendered to its affiliates on a reimbursement-on-cost basis only, without realizing profit, for
purposes of determining liability for VAT on services rendered. As long as the entity provides service for a
fee, remuneration or consideration, then the service rendered is subject to VAT.”
Secs. 4.106-5, 1st par., and 4.108-5(a), Rev. Regs. No. 16-2005,
Sept. 1, 2005 cf. Sec. 4.109-1(a)
Secs. 4.106-5
(1) The sale and actual shipment of goods from the Philippines to a
foreign country, irrespective of any shipping arrangement that may be
agreed upon which may influence or determine the transfer of
ownership of the goods so exported, paid for in acceptable foreign
currency or its equivalent in goods or services, and accounted for in
accordance with the rules and regulations of the Bangko Sentral ng
Pilipinas (BSP);
“Considered export sales under Executive Order No. 226” shall mean
the Philippine port F.O.B. value determined from invoices, bills of
lading, inward letters of credit, landing certificates, and other
commercial documents, of export products exported directly by a
registered export producer, or the net selling price of export products
sold by a registered export producer to another export producer, or to
an export trader that subsequently exports the same; Provided, That
sales of export products to another producer or to an export trader shall
only be deemed export sales when actually exported by the latter, as
evidenced by landing certificates or similar commercial documents;
Provided, further, That without actual exportation the following shall be
considered constructively exported for purposes of these provisions:
(6) The sale of goods, supplies, equipment and fuel to persons engaged
in international shipping or international air transport operations;
Provided, That the same is limited to goods, supplies, equipment and
fuel pertaining to or attributable to the transport of goods and
passengers from a port in the Philippines directly to a foreign port
without docking or stopping at any other port in the Philippines;
Provided, further, that if any portion of such fuel, goods or supplies is
used for purposes other than that mentioned in this paragraph, such
portion of fuel, goods and supplies shall be subject to 10% VAT.
The Value-Added Tax (VAT) and Excise Taxes which are due on all
petroleum and petroleum products that are imported and/or brought
directly from abroad to the Philippines, including Freeport and
Economic zones, shall be paid by the importer thereof to the Bureau of
Customs (BOC).
National Office
Section 106 (A) (2) (a) (1) of the Tax Code, as amended, provides
(1) The sale and actual shipment of goods from the Philippines to a
foreign country, irrespective of any shipping arrangement that
may be agreed upon which may influence or determine the
transfer of ownership of the goods so exported, paid for in
acceptable foreign currency or its equivalent in goods or
services, and accounted for in accordance with the rules and
regulations of the Bangko Sentral ng Pilipinas (BSP)
*refers to the faxed letter dated Aug 31, 1994 requesting for a
confirmation of opinion that export sales, paid for in acceptable
foreign currency and accounted for in accordance with the Rules
and Regulations of the BSP will qualify as zero-rated sales even if
the proceedsthereof are not converted into Philippine currency.
Under BSP Circular No. 1889 issued on April 13, 1993, pertinent
portions of which are quoted hereunder as follows:
Pursuant to Monetary Board Resolution No. 246 March 26, 1993 the
foreign exchange rules and regulations on current accounts, capital
accounts, foreign currency deposit units, offshore banking units and
representative offices of foreign banks are hereby consolidated as
follows:
CHAPTER 1
*refers to your letter dated Nov. 17, 1999, for and in behalf of your
client, CARGILL PHILIPPINES, INC., requesting for a
confirmation of your opinion that for purposes of applying for
refund of input taxes attributable to export sales, it is not necessary
for he exporter to prove the inward remittance and conversion to
Philippine Pesos of its export sales.
Section 106 (A) (2) (a) (1) of the Tax Code, as amended, provides
(1) The sale and actual shipment of goods from the Philippines to a
foreign country, irrespective of any shipping arrangement that
may be agreed upon which may influence or determine the
transfer of ownership of the goods so exported, paid for in
acceptable foreign currency or its equivalent in goods or
services, and accounted for in accordance with the rules and
regulations of the Bangko Sentral ng Pilipinas (BSP)
The term “and accounted for in accordance with the rules and
regulations of Bank Sentral ng Pilipinas (BSP) is implemented by
BSP Circular No. 1389 dated April 13, 1993 the pertinent portion of
which provides:
Sec. 4.106-6
EXEMPT TRANSACTIONS
General Rule