Q: DEFINE AND DIFFERENTIATE INPUT TAX AND OUTPUT TAX. and services Q: HOW CAN A VAT-REGISTERED TAXPAYER RECOVER ITS INPUT VAT?

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1 VALUE-ADDED TAX GUIDE NOTES ON VALUE-ADDED TAX Q. WHAT IS THE NATURE AND CONCEPT OF VALUE-ADDED TAXES? * VAT is a percentage tax. There is a percentage fixed by law which will be applied to the gross selling price in order to arrive to the VAT to be paid. [CIR v. Seagate Technology (Philippines), GR No , 11 Feb ] is a case on a claim for tax refund/credit of alleged unutilized input VAT paid on capital goods for the period 1 April 1998 to 30 June It explained the concept of a valueadded tax, thus: Viewed broadly, the VAT is a uniform tax ranging, at present, from 0 percent to 12% levied on every importation of goods, whether or not in the course of trade or business, or imposed on each sale, barter, exchange or lease of goods or properties or on each rendition of services in the course of trade or business as they pass along the production and distribution chain, the tax being limited only to the value added to such goods, properties or services by the seller, transferor or lessor. It is an indirect tax that may be shifted or passed on to the buyer, transferee or lessee of the goods, properties or services. As such, it should be understood not in the context of the person or entity that is primarily, directly and legally liable for its payment, but in terms of its nature as a tax on consumption. Situations that may arise: (General Principles) * Citing CIR v. Seagate Technology (Philippines), the case of Panasonic Communications Imaging Corporation of the Philippines v. CIR explained value-added tax in this wise: The VAT is a tax on consumption, an indirect tax that the provider of goods or services may pass on to his customers. Under the VAT method of taxation, which is invoice-based, an entity can subtract from the VAT charged on its sales or outputs the VAT it paid on its purchases, inputs and imports. For example, when a seller charges VAT on its sale, it issues an invoice to the buyer, indicating the amount of VAT he charged. For his part, if the buyer is also a seller subjected to the payment of VAT on his sales, he can use the invoice issued to him by his supplier to get a reduction of his own VAT liability. The difference in tax shown on invoices passed and invoices received is the tax paid to the government. In case the tax on invoices received exceeds that on invoices passed, a tax refund may be claimed. Q: DEFINE AND DIFFERENTIATE INPUT TAX AND OUTPUT TAX. The case of CIR v. Benguet Corporation defined input tax and output tax. Input tax Output tax Input VAT or input tax represents the When that person or entity sells his/its actual payments, costs and expenses products or services, the VAT-registered incurred by a VAT-registered taxpayer in taxpayer generally becomes liable for connection with his purchase of goods 12% of the selling price as output VAT or and services output tax. 1. If at the end of a taxable quarter the output taxes charged by a seller are equal to the input taxes passed on by the suppliers, no payment is required. 2. If at the end of a taxable quarter, the output taxes exceed the input taxes, the excess has to be paid by the seller. Thus, "input tax" means the valueadded tax paid by a VAT-registered person/entity in the course of his/its trade or business on the importation of goods or local purchases of goods or services from a VAT-registered person Hence, "output tax" is the value-added tax on the sale of taxable goods or services by any person registered or required to register under Section 107 of the (old) Tax Code. 3. If the input taxes exceed the output taxes, the excess shall be carried over to the succeeding quarter or quarters 4. If the input taxes result from zero-rated or effectively zero-rated transactions or from acquisition of capital goods any excess over the output taxes shall be refunded to the taxpayer or credited against other internal revenue taxes. Q: HOW CAN A VAT-REGISTERED TAXPAYER RECOVER ITS INPUT VAT? The VAT system of taxation allows a VAT-registered taxpayer to recover its input VAT 1

2 either by (1) passing on the 12% output VAT on the gross selling price or gross receipts, as the case may be, to its buyers, or X may claim the 1,500 input tax on his purchase as a tax credit. This is why it was deducted from 1,800. (c) Can Z claim a tax credit? No. He is the end-consumer. He ultimately bears the tax burden. SEC Persons Liable. (2) if the input tax is attributable to the purchase of capital goods or to zero-rated sales, by filing a claim for a refund or tax credit with the BIR. Simply stated, a taxpayer subject to 12% output VAT on its sales of goods and services may recover its input VAT costs by passing on said costs as output VAT to its buyers of goods and services but it cannot claim the same as a refund or tax credit, while a taxpayer subject to 0% on its sales of goods and services may only recover its input VAT costs by filing a refund or tax credit with the BIR. Q: Illustrate input tax, output tax and VAT payable X Corp, manufacturer, sold goods to Y, a retailer, for 100,000 plus vat of 12,000 (so Y bought it for 112,000) Then, Y resold the goods to Z, end-consumer for 150,000 plus VAT of 18,000 (so Z bought it for 168,000) On the part of Y, the retailer, -His INPUT TAX is 12,000 because this tax was passed on to him when he bought goods from X Corp. -His OUTPUT TAX is 18,000 because this is the tax he passed on to Z. -In this case, Y will pay for/ultimately be liable for the vat of 6,000 on the sale because the output tax is greater than the input tax. (see 2 nd situation in first page) Q: Illustrative problem (Co-Untian) X is a VAT registered person. He bought goods from Y for 12,500, exclusive of VAT. X then sold these goods to consumer Z for 15,000, exclusive of the VAT (a) How much is the VAT payable by X to the BIR? X s purchase has an input tax of 1,500 (12,500 x 12%) and his re-sale transaction has an output tax of 1,800 (15,000 x 12%) The VAT payable by X is the difference of the output tax and the input tax thus it is 300 ( ) (b) How much can X claim as a tax credit? 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 valueadded tax (VAT) imposed in Sections 106 to 108 of this Code. The value-added tax is an indirect tax and the amount of tax may be shifted or passed on to the buyer, transferee or lessee of the goods, properties or services. This rule shall likewise apply to existing contracts of sale or lease of goods, properties or services at the time of the effectivity of Republic Act No 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 non-stock, nonp-rofit 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. The rule of regularity, to the contrary notwithstanding, services as defined in this Code rendered in the Philippines by nonresident foreign persons shall be considered as being course of trade or business. Q: UNDER 1 ST PARAGRAPH OF SEC 105, WHAT ARE THE VAT-ABLE TRANSACTIONS? [SALE, IMPORTATION AND SERVICES] 1. Sale, barter, exchange of goods or properties 2. Transactions deemed sale 3. Importation of goods [does not have to be exercised in the ordinary course of business] 4. Sale of services and use or lease of properties Q: UNDER PAR 2, VAT IS AN INDIRECT TAX. DISTINGUISH BETWEEN LIABILITY FOR THE TAX AND BURDEN OF THE TAX. * The case of Contex Corporation v. CIR made a distinction between the two concepts. It provided [[Contex Corporation v. CIR, GR No , 2 July 2004.] At this juncture, it must be stressed that the VAT is an indirect tax. As such, the amount of tax paid on the goods, properties or services bought, transferred, or leased may be shifted or passed on by the seller, transferor, or lessor to the buyer, 2

3 transferee or lessee. Unlike a direct tax, such as the income tax, which primarily taxes an individual s ability to pay based on his income or net wealth, an indirect tax, such as the VAT, is a tax on consumption of goods, services, or certain transactions involving the same. The VAT, thus, forms a substantial portion of consumer expenditures. Further, in indirect taxation, there is a need to distinguish between the liability for the tax and the burden of the tax. As earlier pointed out, the amount of tax paid may be shifted or passed on by the seller to the buyer. o o What is transferred in such instances is not the liability for the tax, but the tax burden. In adding or including the VAT due to the selling price, the seller remains the person primarily and legally liable for the payment of the tax. What is shifted only to the intermediate buyer and ultimately to the final purchaser is the burden of the tax. Stated differently, a seller who is directly and legally liable for payment of an indirect tax, such as the VAT on goods or services is not necessarily the person who ultimately bears the burden of the same tax. It is the final purchaser or consumer of such goods or services who, although not directly and legally liable for the payment thereof, ultimately bears the burden of the tax. Q: WHAT IS MEANT BY IN THE COURSE OF TRADE OR BUSINESS? * The case of CIR v. Magsaysay Lines, Inc GR No involved the sale by the National Development Company of five of its vessels to Magsaysay Lines, Inc. The issue was whether such sale was within the coverage of VAT. The Supreme Court found that the sale of the vessels was not in the ordinary course of trade or business. As such, the transaction was outside the coverage of VAT. That the sale of the vessels was not in the ordinary course of trade or business of NDC was appreciated by both the CTA and the Court of Appeals, the latter doing so even in its first decision which it eventually reconsidered. We cite with approval the CTA s explanation on this point: In Imperial v. Collector of Internal Revenue, G.R. No. L-7924, September 30, 1955 (97 Phil. 992), the term "carrying on business" does not mean the performance of a single disconnected act, but means conducting, prosecuting and continuing business by performing progressively all the acts normally incident thereof; while "doing business" conveys the idea of business being done, not from time to time, but all the time. "Course of business" is what is usually done in the management of trade or business. What is clear therefore, based on the aforecited jurisprudence, is that "course of business" or "doing business" connotes regularity of activity. In the instant case, the sale was an isolated transaction. The sale which was involuntary and made pursuant to the declared policy of Government for privatization could no longer be repeated or carried on with regularity. It should be emphasized that the normal VAT-registered activity of NDC is leasing personal property. This finding is confirmed by the Revised Charte of the NDC which bears no indication that the NDC was created for the primary purpose of selling real property. The conclusion that the sale was not in the course of trade or business, which the CIR does not dispute before this Court should have definitively settled the matter. Any sale, barter or exchange of goods or services not in the course of trade or business is not subject to VAT. The decision contained an explanation of VAT, to wit: A brief reiteration of the basic principles governing VAT is in order. VAT is ultimately a tax on consumption, even though it is assessed on many levels of transactions on the basis of a fixed percentage. It is the end user of consumer goods or services which ultimately shoulders the tax, as the liability therefrom is passed on to the end users by the providers of these goods or services who in turn may credit their own VAT liability (or input VAT) from the VAT payments they receive from the final consumer (or output VAT). 3

4 The final purchase by the end consumer represents the final link in a production chain that itself involves several transactions and several acts of consumption. The VAT system assures fiscal adequacy through the collection of taxes on every level of consumption, yet assuages the manufacturers or providers of goods and services by enabling them to pass on their respective VAT liabilities to the next link of the chain until finally the end consumer shoulders the entire tax liability. Yet VAT is not a singular-minded tax on every transactional level. Its assessment bears direct relevance to the taxpayer s role or link in the production chain. Hence, as affirmed by Section 99 of the Tax Code and its subsequent incarnations, the tax is levied only on the sale, barter or exchange of goods or services by persons who engage in such activities, in the course of trade or business. o These transactions outside the course of trade or business may invariably contribute to the production chain, but they do so only as a matter of accident or incident. (a) Real properties held primarily for sale to customers or held for lease in the ordinary course of trade or business; (b) The right or the privilege to use patent, copyright, design or model, plan, secret formula or process, goodwill, trademark, trade brand or other like property or right; (c) The right or the privilege to use in the Philippines of any industrial, commercial or scientific equipment; (d) The right or the privilege to use motion picture films, tapes and discs; and (e) Radio, television, satellite transmission and cable television time. The term 'gross selling price' means the total amount of money or its equivalent which the purchaser pays or is obligated to pay to the seller in consideration of the sale, barter or exchange of the goods or properties, excluding the value-added tax. The excise tax, if any, on such goods or properties shall form part of the gross selling price. Q: WHAT IS A SALE OF GOODS OR PROPERTIES? o As the sales of goods or services do not occur within the course of trade or business, the providers of such goods or services would hardly, if at all, have the opportunity to appropriately credit any VAT liability as against their own accumulated VAT collections since the accumulation of output VAT arises in the first place only through the ordinary course of trade or business) ** In the case of CIR v. CA, COMASERCO, being a non-stock non-profit organization, contended that it was operating on a reimbursement-of-cost basis, that its operations were not profit-oriented and not in the course of trade of business, and that therefore, it was not liable to pay VAT. The Supreme Court held that Section 105 of the 1997 Tax Code was clear and unambiguous in stating that even non-stock non-profit organizations were liable to pay VAT on the sale of goods or services. ***N.B. Booch Difference of CIR v. Magsaysay v. CIR v. CA, Comaserco: SEC Value-Added Tax on Sale of Goods or Properties. - (A) Rate and Base of Tax. - There shall be levied, assessed and collected on every sale, barter or exchange of goods or properties, value-added tax equivalent to twelve percent (12%) of the gross selling price or gross value in money of the goods or properties sold, bartered or exchanged, such tax to be paid by the seller or transferor. (1) The term 'goods' or 'properties' shall mean all tangible and intangible objects which are capable of pecuniary estimation and shall include: * In CIR v. Sony Philippines, Inc., Sony Philippines engaged the services of several advertising companies. Due to Sony Philippines dire economic conditions, Sony International Singapore handed Sony Philippines a dole-out to answer for the expenses payable to the advertising companies. Sony Philippines was thereafter assessed deficiency VAT for the transaction, i.e., dole-out, between Sony International Singapore and Sony Philippines. The Supreme Court ruled that the dole-out or subsidy from the Singaporean company to the Philippine company neither constituted a sale of goods or properties, nor a sale of services. Hence, Sony Philippines was not liable to pay VAT on the same. [CIR v. Sony Philippines, Inc., GR No , 17 Nov ] 106(A)(2) Zero-Rated Sales of Goods (2) The following sales by VAT-registered persons shall be subject to zero percent (0%) rate: (a) Export Sales. - The term 'export sales' means: (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 and 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); (2) Sale of raw materials or packaging materials to a nonresident buyer for delivery to a 4

5 resident local export-oriented enterprise to be used in manufacturing, processing, packing or repacking in the Philippines of the said buyer's goods and paid for in acceptable foreign currency and accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP); (3) Sale of raw materials or packaging materials to export-oriented enterprise whose export sales exceed seventy percent (70%) of total annual production; (4) Sale of gold to the Bangko Sentral ng Pilipinas (BSP); and (5) Those considered export sales under Executive Order NO. 226, otherwise known as the Omnibus Investment Code of 1987, and other special laws. Q: DISTINGUISH BETWEEN VAT RATING AND ZERO-RATING. * The case of CIR v. Benguet Corporation explained VAT rating vis-as-vis zero-rating in principle, as well as by way of illustration, to wit: In transactions taxed at a 12% rate (VAT rating), when at the end of any given taxable quarter the output VAT exceeds the input VAT, the excess shall be paid to the government; when the input VAT exceeds the output VAT, the excess would be carried over to VAT liabilities for the succeeding quarter or quarters. On the other hand, transactions which are taxed at zero-rate do not result in any output tax. Input VAT attributable to zero-rated sales could be refunded or credited against other internal revenue taxes at the option of the taxpayer. To illustrate, in a zero-rated transaction, when a VAT-registered person ( taxpayer ) purchases materials from his supplier at P80.00, P7.30 of which was passed on to him by his supplier as the latter s 10% output VAT, the taxpayer is allowed to recover P7.30 from the BIR, in addition to other input VAT he had incurred in relation to the zero-rated transaction, through tax credits or refunds. When the taxpayer sells his finished product in a zero-rated transaction, say, for P110.00, he is not required to pay any output VAT thereon. In the case of a transaction subject to 10% VAT, the taxpayer is allowed to recover both the input VAT of P7.30 which he paid to his supplier and his output VAT of P2.70 (10% the P30.00 value he has added to the P80.00 material) by passing on both costs to the buyer. Thus, the buyer pays the total 10% VAT cost, in this case P10.00 on the product. [CIR v. Benguet Corporation, GR Nos & , 8 July 2005.] Q: DISTINGUISH BETWEEN VAT EXEMPTION AND ZERO-RATING. Exemptions from VAT are granted by express provision of the Tax Code or special laws. Under VAT, the transaction can have preferential treatment in the following ways: Vat Exempt Sales (Vat-Exempt) Simply put, the VAT is removed at the exempt stage (e.g. point of the sale, barter, etc) A VAT-Registered purchaser of VATexempt goods/properties/services which are exempt from VAT is not entitled to any input tax on such purchase. The seller of exempt goods properties or services shall not bill any output tax. Exemption only removes the VAT at the exempt stage, and it will actually increase, rather than reduce the total taxes paid by the exempt firm s business or non-retail customers. There is only partial relief because the purchase is not allowed any tax refund or credit for input taxes paid. Zero Rated Sales (Zero Rating) These are sales by VAT-registered persons which are subject to 0% rate, meaning the tax burden is not passed on to the purchaser. A zero-rated sale or transaction by a VATregistered person, which is a taxable transaction for VAT purposes, does not result in any output tax (still a taxable transaction) The input VAT on the purchases of a VAT-registered person with zero-rated sales may be allowed as tax credits or refunded Under zero-rating, all VAT is removed from the zero-rated goods, activity or firm [In] zero rating, there is total relief for the purchaser from the burden of the tax Q: Distinguish between zero-rated transactions and effectively zero-rated transactions. The case of CIR v. Seagate Technology (Philippines) addressed this issue. It stated that the difference is primarily as to their source. The case of Contex Corporation v. CIR enumerated two ways by which a transaction could have preferential treatment under the VAT system, namely: (1) VAT exemption; and (2) zero-rating. Zero-Rated Zero-rated transactions generally refer to the export sale of goods and supply of services. Effectively Zero-Rated Effectively zero-rated transactions refer to the sale of goods or supply of services to persons or entities whose 5

6 The tax rate is set at zero. When applied to the tax base, such rate obviously results in no tax chargeable against the purchaser. The seller of such transactions charges no output tax, but can claim a refund of or a tax credit certificate for the VAT previously charged by suppliers Applying the destination principle to the exportation of goods, automatic zero rating is primarily intended to be enjoyed by the seller who is directly and legally liable for the VAT, making such seller internationally competitive by allowing the refund or credit of input taxes that are attributable to export sales. exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects such transactions to a zero rate. Again, as applied to the tax base, such rate does not yield any tax chargeable against the purchaser. The seller who charges zero output tax on such transactions can also claim a refund of or a tax credit certificate for the VAT previously charged by suppliers. Effective zero rating, on the contrary, is intended to benefit the purchaser who, not being directly and legally liable for the payment of the VAT, will ultimately bear the burden of the tax shifted by the suppliers upon which may influence or determine the transfer of ownership of the goods so exported and 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)]] Q: Give examples of export sales in the form of actual shipment of goods from the Philippines to a foreign country. * Toshiba Information Equipment (Phils.), Inc. v. CIR is a claim for tax refund/credit of alleged unutilized input VAT on local purchases of goods and services which are attributable to export sales for the first and second quarters of [NOTE: This is different from the Toshiba Case previously cited.] In the case at bar, the CIR, in the Joint Stipulation of Facts and Issues, admitted that Toshiba was a registered VAT entity and that it was subject to 0% VAT on its export sales. Later, in his Motion for Reconsideration of the adverse Court of Tax Appeals decision, the CIR would argue that Toshiba was not entitled to its claim for tax refund/credit because it was VAT-exempt and its export sales were VATexempt transactions (CIR argued this way because if the export sales were VAT exempt, then it would be entitled to claim any credit from input tax) The Supreme Court ruled that Toshiba was a registered VAT entity and its export sales were subject to 0% VAT. 106(A)(2)(a) Export Sales Q: What is the cross-border doctrine? * According to CIR v. Toshiba Information Equipment (Phils.), Inc., the Philippines adheres to the cross-border doctrine which means that no VAT shall be imposed to form part of the cost of goods destined for consumption outside of the territorial border of the taxing authority. Hence: actual export of goods and services from the Philippines to a foreign country must be free of VAT; On the other hand, those destined for use or consumption within the Philippines shall be imposed with ten percent (10%) [now 12%] VAT. Additionally, sales made by an enterprise within a non-ecozone territory, i.e., Customs Territory, to an enterprise within an ECOZONE territory shall be free of VAT. [CIR v. Toshiba Information Equipment (Phils.), Inc., GR No , 9 Aug ] [[106(A)(2)(a)(1) Actual Shipment of Goods from the Philippines to a Foreign Country (ZRT): The sale and actual shipment of goods from the Philippines to a foreign country, irrespective of any shipping arrangement that may be agreed Note: Remember, a zero-rated sale by a VAT-registered person, which is a taxable transaction for VAT purposes, shall not result in any output tax. However, the input tax on his purchases of goods, properties or services related to such zero-rated sale shall be available as tax credit or refund in accordance with these regulations [Toshiba Information Equipment (Phils.), Inc. v. CIR, GR No , 9 Mar ] The case of Intel Technology Philippines, Inc. v. CIR is a claim for tax refund/credit of alleged unutilized input VAT on local purchases of goods and services which are attributable to export sales for the second quarter of To prove that it was engaged in the sale and actual shipment of goods from the Philippines to a foreign country and therefore entitled to tax credit of input VAT, Intel Technology presented documentary evidence such as summary of export sales, sales invoices, official receipts, airway bills, and export declarations. And, to prove that payment was made 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), a certification of inward remittances was presented by Intel Technology The Supreme Court found that Intel Technology s evidence sufficiently established that it was engaged in export sales. Note: Based on Sec 106, export sales, or sales outside the Philippines, are subject to VAT at 0% rate if made by a VAT-registered person. When applied to the tax base, the 0% rate obviously results in no tax chargeable against the purchaser. The seller 6

7 of such transactions charges no output tax, but can claim a refund or tax credit certificate for the VAT previously charged by suppliers. Additionally, Under Sections 106 (A)(2)(a)(1) in relation to 112(A) of the Tax Code, a taxpayer engaged in zero-rated or effectively zero-rated transactions may apply for a refund or issuance of a tax credit certificate for input taxes paid attributable to such sales upon complying with the following requisites: (1) the taxpayer is engaged in sales which are zero-rated (like export sales) or effectively zero-rated; (2) the taxpayer is VAT-registered; (3) the claim must be filed within two years after the close of the taxable quarter when such sales were made; (4) the creditable input tax due or paid must be attributable to such sales, except the transitional input tax, to the extent that such input tax has not been applied against the output tax; and (5) in case of zero-rated sales under Section 106(A)(2)(a)(1) and (2), Section 106(B), and Section 108(B)(1) and (2), the acceptable foreign currency exchange proceeds thereof had been duly accounted for in accordance with BSP rules and regulations. It is added that, "where the taxpayer is engaged in zero-rated or effectively zero-rated sale and also in taxable or exempt sale of goods or properties or services, and the amount of creditable input tax due or paid cannot be directly or entirely attributed to any one of the transactions, it shall be allocated proportionately on the basis of the volume of the sales [Intel Technology Philippines, Inc. v. CIR, GR No , 27 Apr ] 106(A)(2)(a)(2) Sale of Raw Materials to a Nonresident Buyer for Delivery to a Resident Local Export-Oriented Enterprise: Sale of raw materials or packaging materials to a nonresident buyer for delivery to a resident local exportoriented enterprise to be used in manufacturing, processing, packing or repacking in the Philippines of the said buyer's goods and paid for in acceptable foreign currency and accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP); 106(A)(2)(a)(3) Sale of Raw Materials to Export-Oriented Enterprise: Sale of raw materials or packaging materials to export-oriented enterprise whose export sales exceed seventy percent (70%) of total annual production; Q: Give an example of a sale of raw materials to an export-oriented enterprise. * Section 106(A)(2)(a)(3) of the 1997 Tax Code pertains to the sale of raw materials or packaging materials to an export-oriented enterprise whose export sales exceed 70% of total annual production. With respect to the extent of the relief, the Supreme Court held that: Thus, the 0% rate applies to the total sale of raw materials or packaging materials to an export-oriented enterprise and not just the percentage of the sale in proportion to the actual exports of the enterprise. [Atlas Consolidated Mining and Development Corporation v. CIR, GR No , 25 Sept ] 106(A)(2)(a)(4) Sale of Gold to the BSP Q: Give an example of a sale of gold to the BSP. CIR v. Benguet Corporation is a claim for tax refund/credit of alleged unutilized input VAT on Benguet Corporation s sale of gold to the Bangko Sentral ng Pilipinas for the period 1 August 1989 to 31 July [NOTE: At the time the subject transaction was made, the treatment of sale of gold to the BSP as export sales was merely based on BIR issuances. Today, such treatment is already contained in the 1997 Tax Code.] [CIR v. Benguet Corporation, GR Nos & , 8 July 2005.] 106(A)(2)(a)(5) Export Sales under the Omnibus Investment Code of 1987 and Other Special Laws Q: Give an example of export sales under the Omnibus Investment Code of 1987 and other special laws. In Panasonic Communications Imaging Corporation of the Philippines v. CIR, Panasonic produced and exported paper copiers and their sub-assemblies, parts, and components. It was registered with the Board of Investments as a preferred pioneer enterprise under the Omnibus Investment Code of 1987; it was a registered VAT enterprise; and its export sales were zero-rated. [Panasonic Communications Imaging Corporation of the Philippines v. CIR, GR No , 8 Feb ] 106(A)(2)(a)(6) Sale of Goods to Persons Engaged in International Shipping or Air Transport Operations 106(A)(2)(b) Foreign Currency Denominated Sale: The phrase 'foreign currency denominated sale' means sale to a nonresident of goods, except those mentioned in Sections 149 and 150, assembled or manufactured in the Philippines for delivery to a resident in the Philippines, paid for in acceptable foreign currency and accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP). 106(A)(2)(c) Zero-Rated Sales pursuant to Special Laws or International Agreements 106(B) Transactions Deemed Sale: 106(B)(1) Transfer Not in the Course of Trade or Business of Goods/Services Originally Intended for Sale/Use in the Course of 7

8 Trade or Business 106(B)(2) Other Transactions: These are: (1) transfer to shareholders/investors as share in the profits of a VAT-registered person/entity; (2) transfer to creditors in payment of debt; (3) consignment of goods, if actual sale is not made within 60 days following the date such goods were consigned; and (4) retirement from or cessation of business, with respect to inventories of taxable goods existing as of such retirement or cessation. Q: Give an example of a transaction deemed sale under this provision. * In San Roque Power Corporation v. CIR, San Roque Power Corporation was engaged in the supply of electricity to the National Power Corporation. Such sale of service qualified as a zero-rated transaction under Section 108(B)(3) of the 1997 Tax Code. A portion of SRPC s claim for tax refund/credit for alleged unutilized input VAT was attributable to a sale of electricity to NPC that was made during the testing period sometime in 2002, for which SRPC was paid an amount of Php 42.5 million. The issue was whether such sale qualified for zero-rating. The Supreme Court held that although the sale was not a commercial sale or in the normal course of business, it was a transaction deemed sale under Section 106(B)(1) of the 1997 Tax Code. It thus qualified for zero-rating. [San Roque Power Corporation v. CIR, GR No , 25 Nov ] 106(C) Changes in or Cessation of Status of a VAT-Registered Person 106(D) Sales Returns, Allowances, and Sales Discounts 106(E) Authority of the Commissioner to Determine the Appropriate Tax Base Sec. 107, Value-Added Tax on Importation of Goods Q: Does VAT apply on every importation of goods? * In explaining value-added tax, CIR v. Seagate Technology (Philippines) stated that VAT shall be imposed on every importation of goods, whether or not in the course of trade or business. This is unlike VAT on sale of goods or properties which must be in the course of trade or business. Otherwise, the person/transaction shall not be liable to pay VAT. Pertinent portion of the decision read: Viewed broadly, the VAT is a uniform tax ranging, at present, from 0 percent to 10 percent [now 12 percent] levied on every importation of goods, whether or not in the course of trade or business, or imposed on each sale, barter, exchange or lease of goods or properties or on each rendition of services in the course of trade or business as they pass along the production and distribution chain, the tax being limited only to the value added to such goods, properties or services by the seller, transferor or lessor. [CIR v. Seagate Technology (Philippines), GR No , 11 Feb ] Sec. 108, Value-Added Tax on Sale of Services and Use or Lease of Properties 108(A) Rate and Base of Tax Q: What is a sale of services? * In CIR v. Sony Philippines, Inc., Sony Philippines engaged the services of several advertising companies. Due to Sony Philippines dire economic conditions, Sony International Singapore handed Sony Philippines a dole-out to answer for the expenses payable to the advertising companies. Sony Philippines was thereafter assessed deficiency VAT for the transaction, i.e., dole-out, between Sony International Singapore and Sony Philippines. The Supreme Court ruled that the dole-out or subsidy from the Singaporean company to the Philippine company neither constituted a sale of goods or properties, nor a sale of services. Hence, Sony Philippines was not liable to pay VAT on the same. [CIR v. Sony Philippines, Inc., GR No , 17 Nov ] ** Quezon City v. ABS-CBN Broadcasting Corporation dealt with VAT-able sales of services of franchise grantees of electric utilities, telephone and telegraph, radio and television broadcasting and all other franchise grantees except those under Section 119 of this Code. [NOTE: Section 119 of the Tax Code imposes a percentage tax, in the form of a 3% franchise tax, on radio and television broadcasting companies whose annual gross receipts do not exceed Php 10 million. Such franchise holders, however, has the option of paying 3% franchise tax or 12% VAT. On the other hand, radio and television broadcasting companies whose annual gross receipts exceed Php 10 million are governed by Section 108 of the 1997 Tax Code. They are liable to pay VAT, and do not have the option to choose between paying franchise tax or VAT.] ABS-CBN, being a broadcasting company with yearly gross receipts exceeding Php 10 million, was found liable to pay VAT. [Quezon City v. ABS-CBN Broadcasting Corporation, GR No , 6 Oct ] *** Section 108 of the 1997 Tax Code defines sale of services as the performance of all kinds of services in the Philippines for others for a fee, remuneration or consideration, including supply of technical advice, assistance or services rendered in connection with technical management or administration of any scientific, industrial or commercial undertaking, venture, 8

9 project or scheme. In the case of CIR v. CA, COMASERCO was a non-stock non-profit organization engaged in the sale of services of such nature. However, COMASERCO argued that its sales of services were not subject to VAT because although it charged a fee for such sales, the organization was operating on a reimbursement-of-cost basis and hence, did not derive profit from such sales. The Supreme Court held that any sale of services for a fee, remuneration or consideration is subject to VAT, regardless of any profit derived therefrom. [CIR v. CA, GR No , 30 Mar ] **** Sale of services includes lease of motion picture films, films, tapes and discs. In CIR v. SM Prime Holdings, Inc., SM Prime and First Asia were engaged in the business of operating cinema houses. At issue was whether cinema operators/proprietors were liable to pay VAT, on top of the amusement tax imposed by the 1991 LGC. The Supreme Court conceded that the enumeration of services subject to VAT under Section 108 of the 1997 Tax Code was not exhaustive. However, lease of motion picture films, films, tapes and discs did not equate to showing or exhibition of motion pictures or films. SM Prime and First Asia were not liable to pay VAT. [CIR v. SM Prime Holdings, Inc., GR No , 26 Feb ] ***** Sonza v. ABS-CBN Broadcasting Corporation differentiated between services rendered pursuant to an employer-employee relationship and services rendered by an independent contractor pursuant to a contractual relationship. Subsumed under the latter, professionals such as talent and television and radio broadcasters are liable to pay VAT. [Sonza v. ABS-CBN Broadcasting Corporation, GR No , 10 June 2004.] 108(B) Zero-Rated Sales of Services 108(B)(2) Services Other than Those Mentioned in the Preceding Paragraph Q: Cite examples of services other than processing, manufacturing, or repacking of goods. * In CIR v. American Express International, Inc., Amex Phils. facilitated in the Philippines the collection and payment of receivables belonging to its Hong Kong-based foreign client, Amex HK, and getting paid for it in acceptable foreign currency and accounted for in accordance with the rules and regulations of the BSP. The Supreme Court ruled that the facilitation services Amex Phils. rendered in the Philippines fell under Section 108(B)(2) of the 1997 Tax Code. [CIR v. American Express International, Inc., GR No , 29 June 2005.] ** In CIR v. Placer Dome Technical Services (Phils.) Inc., Placer Dome Canada engaged the services of Placer Dome Phils. to perform the clean-up and rehabilitation of the Makalupnit and Boac Rivers in Marinduque. Placer Dome Phils. argued that its sale of services to Placer Dome Canada was a zero-rated transaction under Section 108(B)(2) of the 1997 Tax Code. Citing CIR v. American Express International, Inc., the Supreme Court upheld Placer Dome Phils. argument. [CIR v. Placer Dome Technical Services (Philippines), Inc., GR No , 8 June 2007.] Q: What is the destination principle? Are there exceptions to the rule? * According to CIR v. American Express International, Inc.: As a general rule, the VAT system uses the destination principle as a basis for the jurisdictional reach of the tax. Goods and services are taxed only in the country where they are consumed. Thus, exports are zero-rated, while imports are taxed. The decision proceeded to define consumption as the use of a thing in a way that thereby exhausts it. Applied to services, it means the performance or successful completion of a contractual duty, usually resulting in the performer s release from any past or future liability. Exceptions to the destination principle are found in Section 108(B) of the 1997 Tax Code. They are deemed exceptions because although the services are performed in the Philippines, upon compliance with certain requirements, the sales of such services are zero-rated. [CIR v. American Express International, Inc. (Philippine Branch), GR No , 29 June 2005.] 108(B)(1) Processing, Manufacturing, or Repacking Goods for Other Persons Doing Business outside the Philippines *** In CIR v. Burmeister and Wain Scandinavian Contractor Mindanao, Inc., Burmeister was engaged in the actual operation and management of two power barges in Mindanao. It claimed that its transactions were subject to zero-rating under Section 108(B)(2) of the 1997 Tax Code. The Supreme Court denied Burmeister s claim on the ground that Section 108(B)(2) of the 1997 Tax Code additionally required that the payer-recipient of the services must be doing business outside the Philippines. It ruled in this manner: The Tax Code not only requires that the services be other than processing, manufacturing or repacking of goods and that payment for such services be in acceptable foreign currency accounted for in accordance with BSP rules. Another essential condition for qualification to zero-rating under Section 102(b)(2) is that the recipient of such services is doing business outside the Philippines. While this requirement is not expressly stated in the second paragraph of Section 102(b), this is clearly provided in the first paragraph of Section 102(b) where the listed services must be for other persons doing business outside the Philippines. The phrase for other persons doing 9

10 business outside the Philippines not only refers to the services enumerated in the first paragraph of Section 102(b), but also pertains to the general term services appearing in the second paragraph of Section 102(b). In short, services other than processing, manufacturing, or repacking of goods must likewise be performed for persons doing business outside the Philippines. [NOTE: In relation to CIR v. American Express International, Inc. and CIR v. Placer Dome Technical Services (Philippines), Inc. discussed above, said cases stated that consumption of the services abroad is not a requirement for zero-rating. However, on the basis of CIR v. Burmeister & Wain Contractor Mindanao, Inc., the payer-recipient of the services must be doing business outside of the Philippines.] [CIR v. Burmeister & Wain Scandinavian Contractor Mindanao, Inc., GR No , 22 Jan ] 108(B)(3) Zero-Rated Sales pursuant to Special Laws or International Agreements Q: Distinguish between zero-rated transactions [e.g., Sec. 108(B)(1)-(2)] and effectively zero-rated transactions [e.g., Sec. 108(B)(3)]. * The case of CIR v. Seagate Technology (Philippines) addressed this issue. It stated that: Although both are taxable and similar in effect, zero-rated transactions differ from effectively zero-rated transactions as to their source. Zero-rated transactions generally refer to the export sale of goods and supply of services. The tax rate is set at zero. When applied to the tax base, such rate obviously results in no tax chargeable against the purchaser. The seller of such transactions charges no output tax, but can claim a refund of or a tax credit certificate for the VAT previously charged by suppliers. Effectively zero-rated transactions, however, refer to the sale of goods or supply of services to persons or entities whose exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects such transactions to a zero rate. Again, as applied to the tax base, such rate does not yield any tax chargeable against the purchaser. The seller who charges zero output tax on such transactions can also claim a refund of or a tax credit certificate for the VAT previously charged by suppliers. The decision went on to say (under the subheading Zero Rating and Exemption): Applying the destination principle to the exportation of goods, automatic zero rating is primarily intended to be enjoyed by the seller who is directly and legally liable for the VAT, making such seller internationally competitive by allowing the refund or credit of input taxes that are attributable to export sales. Effective zero rating, on the contrary, is intended to benefit the purchaser who, not being directly and legally liable for the payment of the VAT, will ultimately bear the burden of the tax shifted by the suppliers. (Emphasis supplied.) [CIR v. Seagate Technology (Philippines), GR No , 11 Feb ] Q: Give examples of effectively zero-rated sales of services pursuant to special laws. * In CIR v. Acesite (Philippines) Hotel Corporation, Acesite was the operator of Holiday Inn Manila Pavilion Hotel. It leased a portion of its premises to PAGCOR for casino operations. It also catered food and beverages to PAGCOR s casino patrons. The issue was whether Acesite could refund the VAT it paid on its rental income and sale of food and beverages to PAGCOR. The Supreme Court, pursuant to PAGCOR s charter (PD No and all amendments thereto), found that Acesite s sale of services to PAGCOR was zero-rated under Section 108(B)(3) of the 1997 Tax Code. [CIR v. Acesite (Philippines) Hotel Corporation, GR No , 16 Feb ] ** In the case of San Roque Power Corporation v. CIR, San Roque Power Corporation was engaged in the sale of electricity to NPC. The Supreme Court ruled that SRPC s sale of service to NPC was zero-rated, pursuant to NPC s charter and under Section 108(B)(3) of the 1997 Tax Code. It explained the rationale for the effective zero-rating of NPC in this manner: It bears emphasis that effective zero-rating is not intended as a benefit to the person legally liable to pay the tax, such as petitioner, but to relieve certain exempt entities, such as the NPC, from the burden of indirect tax so as to encourage the development of particular industries. Before, as well as after, the adoption of the VAT, certain special laws were enacted for the benefit of various entities and international agreements were entered into by the Philippines with foreign governments and institutions exempting sale of goods or supply of services from indirect taxes at the level of their suppliers. Effective zero-rating was intended to relieve the exempt entity from being burdened with the indirect tax which is or which will be shifted to it had there been no exemption. In this case, petitioner is being exempted from paying VAT on its purchases to relieve NPC of the burden of additional costs that petitioner may shift to NPC by adding to the cost of the electricity sold to the latter. [San Roque Power Corporation v. CIR, GR No , 25 Nov ] 108(B)(4) Sale of Services to Persons Engaged in International Shipping or Air Transport Operations 108(B)(5) Sale of Services for Export-Oriented Enterprise 108(B)(6) Transport of Passengers and Cargo by Air or Seal Vessels from the Philippines to a Foreign Country 108(B)(7) Sale of Power Generated through Renewable Sources of Energy Sec. 109, Exempt Transactions 1 0

11 Q: Distinguish between an exempt transaction and an exempt party. * CIR v. Seagate Technology (Philippines) made a distinction between exempt transaction exempt party in this wise: An exempt transaction, on the one hand, involves goods or services which, by their nature, are specifically listed in and expressly exempted from the VAT under the Tax Code, without regard to the tax status -- VAT-exempt or not -- of the party to the transaction. Indeed, such transaction is not subject to the VAT, but the seller is not allowed any tax refund of or credit for any input taxes paid. An exempt party, on the other hand, is a person or entity granted VAT exemption under the Tax Code, a special law or an international agreement to which the Philippines is a signatory, and by virtue of which its taxable transactions become exempt from the VAT. Such party is also not subject to the VAT, but may be allowed a tax refund of or credit for input taxes paid, depending on its registration as a VAT or non-vat taxpayer. (Emphasis supplied.) [CIR v. Seagate Technology (Philippines), GR No , 11 Feb ] Q: Give examples of exempt transactions. 109(A) Sale or Importation of Agricultural and Marine Food Products in Their Original State * Misamis Oriental Association of Coco Traders, Inc. v. DOF interpreted the provisions of the 1977 Tax Code. However, it is instructive as to the issue of who determines or classifies a certain product, i.e., whether it is food or nonfood. According to the decision, as between the Bureau of Food and Drug and the Bureau of Internal Revenue, the classification made by the latter would prevail. [Misamis Oriental Association of Coco Traders, Inc. v. DOF, GR No , 10 Nov ] 109(G) Medical, Dental, Hospital, and Veterinary Services, except Those Rendered by Professionals * Section 109(G) of the Tax Code provides that transactions involving medical, dental, hospital, and veterinary services are VAT-exempt transactions. In the case of CIR v. Philippine Health Care Providers, Inc., it was found that Philippine Health Care Providers, Inc. did not render medical, dental, hospital, and veterinary services, but merely arranged for the same. Hence, its services were not VAT-exempt. [CIR v. Philippine Health Care Providers, Inc., GR No , 24 Apr ] 109(I) Services Rendered by Individuals pursuant to an Employer-Employee Relationship * Sonza v. ABS-CBN Broadcasting Corporation differentiated between services rendered pursuant to an employer-employee relationship (which is an exempt transaction) and services rendered by an independent contractor pursuant to a contractual relationship (which is subject to VAT). The Supreme Court ruled that Sonza was an independent contractor. As such, he was subject to VAT on the services that he rendered. [Sonza v. ABS-CBN Broadcasting Corporation, GR No , 10 June 2004.] 109(K) Transactions Which are Exempt under International Agreements to Which the Philippines is a Signatory or under Special Laws, except Those under PD No. 529 * In Philippine Amusement & Gaming Corporation v. CIR, the Supreme Court held that PAGCOR was exempt from payment of VAT. It cited, among others, the VAT exemption of PAGCOR s transactions by virtue of its charter (PD No and all amendments thereto) in relation to Section 109(K) of the 1997 Tax Code. [Philippine Amusement & Gaming Corporation v. CIR, GR No , 15 Mar ] 109(U) Services of Banks, Non-Bank Financial Intermediaries Performing Quasi- Banking Functions, and Other Non-Bank Financial Intermediaries * Section 109(U) of the 1997 Tax Code provides that transactions involving services rendered by banks, non-bank financial intermediaries performing quasi-banking functions, and other non-bank financial intermediaries shall be VAT-exempt. The case of First Planters Pawnshop, Inc. v. CIR pertained to a taxable period prior to the adoption of the present wording of Section 109(U) of the 1997 Tax Code. However, the decision is relevant in that it discussed the tax treatment of a pawnshop business. The Supreme Court held that pawnshops are non-bank financial intermediaries. [First Planters Pawnshop, Inc. v. CIR, GR No , 30 July 2008.] Sec. 110, Tax Credits 110(A) Creditable Input Tax Q: Distinguish between input tax and output tax. * The case of CIR v. Benguet Corporation defined input tax and output tax. Input VAT or input tax represents the actual payments, costs and expenses incurred by a VAT-registered taxpayer in connection with his purchase of goods and services. Thus, "input tax" means the value-added tax paid by a VAT-registered person/entity in the course of his/its trade or business on the importation of goods or local purchases of goods or services from a VAT-registered person. 11