Court of Tax Appeals · First Division

First Division Smi-Ed Philippines Technology, Inc. vs. Commissioner of Internal Revenue

CTA Case No. 6556 May 16, 2005

REPUBLIC OF THE PHILIPPINES

COURT OF TAX APPEALS

QUEZON CITY

FIRST DIVISION

**************

SMI-ED PHILIPPINES TECHNOLOGY, INC.,

Petitioner,

-versus-

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

C.T.A. CASE NO. 6556

Members:

A COST A, Chairman

BAUTISTA, and

CASANOVA, JJ.

Promulgated:

MAY 16 200

mo~z;~

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

BAUTISTA, L., l,.:

This case involves a claim for refund or issuance of a tax credit certificate in the amount of P2,283,902.17 allegedly representing petitioner's unutilized/excess input VAT due to its cessation of business. The antecedent facts of the case are as follows: Petitioner is a corporation duly organized and existing under Philippine laws with its principal office located at First Philippine Industrial Park, Barangay Sta. Anastacia, Sto. Tomas, Batangas and is registered with the Securities and Exchange Commission (Paragraph 1, Joint Stipulation of Facts and Issues).

On June 29, 1998, petitioner was registered to engage in the manufacture of ultra high-density microprocessor unit package with the Philippine Economic Zone Authority (PEZA) as an Ecozone Export Enterprise under Republic Act No. 7916 under a non-pioneer status entitled to income tax holiday (ITH) incentive of four ( 4) years and thereafter would be subject to the 5% final tax in lieu of any and all national and local taxes (Exhibits C & C-1; Paragraphs 3 and 4, Joint Stipulation of Facts and Issues).

Likewise, petitioner was registered with the BIR as a value-added tax (VAT)- registered taxpayer under VAT Registration No. 005-650-040 (Paragraph 5, Joint Stipulation of Facts and Issues).

However, due to the negative and poor business climate brought about by the 1997 Asian financial crisis, petitioner allegedly failed to commence its business operations.

Petitioner's Board of Directors then approved the dissolution of the petitioner effective November 30, 2000 on November 29, 2000 (Exhibit E; TSN, April 29, 2003, pp. 12-13, CTA case No. 6532; Paragraph 7, Petition for Review). Consequently, petitioner filed with the Bureau of Internal Revenue (BIR) a request for tax clearance in connection with the cancellation of its tax identification/value-added tax number On January 15, 2001. On January 18, 2001, petitioner filed with the SEC an application to amend its Articles of Incorporation to shorten its corporate term (Paragraphs 6 & 7, Joint Stipulation of Facts and Issues). On March 28, 2001, petitioner filed with the Large Taxpayers District Office of the BIR a formal letter requesting for refund/issuance of tax credit certificate for 1WO MILLION 1WO HUNDRED EIGHTY THREE THOUSAND NINE HUNDRED 1WO AND 17/100 PESOS (P2,283,902.17) representing petitioner's unused/excess input taxes as reflected in the petitioner's Monthly VAT Declaration return for the period ending November 30, 2000 (Paragraph 8, Joint Stipulation of Facts and Issues). Unable to find any response from the respondent and in order to stop the running of the two-year prescriptive period, petitioner elevated the case through a Petition for Review with this Court on October 29, 2002 (Paragraph 11, Joint Stipulation of Facts and Issues; Records, p. 1). By way of an Answer filed on December 4, 2002, respondent raised the following Special and Affirmative Defenses: 3.

Petitioner's alleged claim for refund/tax credit is subject to administrative routinary examination/investigation by the respondent's Bureau;

Petitioner failed miserably to show that the total amount of Php:2.283,902.17.00 (sic), claimed as unutilized/excess input VAT for taxable year 2000 was erroneously or illegally collected, or that the same was properly documented; 5.

Taxes paid and collected are presumed to have been paid in accordance with law; hence, not refundable; 6.

In an action for tax refund/credit, the taxpayer has the burden to establish its right to refund, and failure to sustain the burden is fatal to the claim for refund;

It is incumbent upon petitioner to show that it has complied with the provisions of Section 204(c) in relation to Section 229 of the Tax Code;

Well-established is the rule that refunds/tax credits are construed strictly against the taxpayer as they partake the nature of exemption from tax.

On March 26, 2003, petitioner moved to avail of the services of the commissioned auditing firm pursuant to CTA Circular 10-97. The same was aptly acted upon by this Court during the hearing conducted on June 6, 2003. In due time, the commissioned auditor submitted his report and the same formed part of the evidence of petitioner (Exhibit A). In addition, a Motion to Adopt Evidences Presented in Court of Tax Appeals Case No. 6532 was filed by petitioner on June 17, 2003, and consequently was granted by this Court during the July 4, 2003 hearing, there being no objection on the part of respondent. To support its claim, petitioner submitted numerous documents and likewise presented witnesses to identify the same. Respondent, on the other hand, submitted the case for decision based on the pleadings. Therefore, on January 6, 2005, the Court issued a resolution and considered the case submitted for decision sans memorandum of respondent.

The parties jointly submitted the following factual and legal issues for this Court's resolution:

Whether petitioner has permanently closed its operation in the Philippines?

Whether petitioner has input VAT in the amount of TWO

MILUON TWO HUNDRED EIGTHY THREE THOUSAND NINE

HUNDRED TWO AND 17/100 PESOS (PHP2,283,902.17)? 3.

Whether petitioner failed to utilize the above-mentioned input VAT?

Whether petitioner is factually and legally entitled to claim a refund in the amount of TWO MILUON TWO HUNDRED EIGHTY

THREE THOUSAND NINE HUNDRED TWO AND 17/100 PESOS

(PHP2,283,902.17)?

Anent the first issue of whether there was a permanent closure of petitioner's operation in the Philippines on November 30, 2000, petitioner alleges that due to negative and poor business climate brought about by the 1997 Asian financial crisis, it failed to commence its business operations. As a consequence, it did not incur any output tax.

Petitioner adopts the testimony of Atty. Marcus Laurel (the corporate secretary of petitioner) on April 29, 2003 hearing of CTA Case No. 6532, that: (1) prior to the actual commencement of manufacturing operations, petitioner was constrained to cease operations and eventually close down the factory due to prevailing market conditions at that time; and (2) after the closure of the factory, petitioner actually adopted a board resolution to prove dissolution as evidenced by the Secretary's Certificate showing the board resolution adopting corporate resolution dissolving the corporation as of November 30, 2000. Accordingly, petitioner's board of directors approved the shortening of its corporate term to November 30, 2000.

Petitioner asserts that the testimony of Atty. Laurel and the fact of petitioner's filing on January 18, 2001 with the Securities and Exchange Commission of an application to amend its Articles of Incorporation to shorten its corporate term firmly support its contention that indeed it had permanently closed its operation in the Philippines on November 30, 2000.

We find for the petitioner.

Petitioner's business closure is supported by its actual cessation from operation and the same is strengthened by: (1) petitioner's board resolution dissolving its existence (TSN dated Apri/29, 2003, pp. 11-14, CTA case No. 6532);

(2) petitioner's application with the SEC amending its Articles of Incorporation to shorten its corporate term (Paragraph 7, Joint Stipulation of Facts and Issues); and

(3) petitioner's request for tax clearance in connection with the cancellation of its tax identification/VAT number because of dissolution {Annex E, Petition for Review). Furthermore, respondent presented no evidence to refute petitioner's allegations.

As regards the remaining stipulated issues in this case, the Court notes that they are interrelated and intertwined; hence, the same will be tackled jointly. Petitioner basically anchors its claim on Section 112(C) of the National Internal Revenue Code of 1997 in relation to Section 4.112-2(b) [should be Section 4.106-l(b)] of Revenue Regulations No. 7-95, and Section 229 of the NIRC of 1997, to wit;

SEC. 112. Refunds or Tax Credits of Input Tax.-

XXX

(C) Cancellation of VAT Registration - A person whose VAT registration has been cancelled due to retirement from or cessation of business, or due to changes in or cessation of status under Section 106 (C) of this Code may within two (2) years from the date of cancellation apply for the issuance of a tax credit certificate for any unused input tax which may be used in payment of his other internal revenue taxes.

SEC. 4.106-2. Procedures for claiming refunds or tax credits of input tax.- (a) xxx

(b) Cancellation of VAT registration- A person whose VAT registration has been cancelled due to retirement from or cessation of business, or due to changes in or cessation of status under Section 100(c) of the Code may, within two (2) years from the date of cancellation apply for the issuance of a tax credit certificate for any unused input tax which may be used in payment of his other internal revenue taxes. However, he shall be entitled to a refund if he has no pending internal revenue tax liabilities. SEC. 229.

Recovery of Tax Erroneously or Illegally

Collected. -- No suit or proceeding shall be maintained in any court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessively or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Commissioner; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress.

In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of the tax or penalty regardless of any supervening cause that may arise after payment: x x x (Underscoring Ours) As above stated, the parties jointly stipulated that petitioner timely filed on December 13, 2000 its monthly VAT return for the month of November 2000. The said monthly value-added tax declaration shows that petitioner has a total excess creditable input tax of P2,283,902.17. However, after a careful review of the evidence presented by the petitioner and as shown in the report of the commissioned auditor, petitioner's unutilized input VAT amounts to only P1,209,032.78 not P2,283,902.17. To quote: "Our examination disclosed that based on the reasons enumerated below, the amount of the Company's claim for TCC for unutilized input VAT requires adjustments aggregating to P1,074,869.39, details of which are shown in Appendix II:

Particulars

Recorded in the books but not properly supported

by VAT

Documents

Adjustments recorded by the Company but not properly supported Properly supported by VAT documents but not recorded in the

Books

Amount

p 933,223.82 ./ 140,120.76 1,524.81 Pl 074 869.39 / After effecting the above adjustments. claim for TCC for unutilized input VAT should amount to P1.209,032.78 (Exhibit A-4-1)."

(Underscoring Ours)

Petitioner in its memorandum has accepted the aforesaid findings of the commissioned auditor and in fact prayed for the issuance of a tax credit certificate in the same amount of P1,209,032.78. Clearly, petitioner adopted the conclusion of the commissioned auditor. Therefore, this Court shall limit itself in determining the merits of petitioner's claim for refund/tax credit certificate in the reduced amount of P1,209,032.78.

A meticulous review of the report of the commissioned auditor as well as the supporting documents of petitioner's claim, such as the various invoices, statements of accounts, bills and receipts (Exhibit 8, inclusive of sub-markings), readily shows that the adjustments of the commissioned independent CPA is in order. However, this Court noticed that, aside from the aforesaid adjustments, a total input VAT of P810,324.01 was not considered by the commissioned independent CPA.

After a

proper verification of the same, We rule that the unconsidered amount of P810,324.01 should be deducted from petitioner's claim, summarized as follows:

DISALLOWANCES

(a) Input VAT supported by an official receipt without BIR Permit

(b) Input VAT on purchases of services supported Only by invoices without the required official receipt

EXHIBITS

839 811, 813, 820 to 822, 844 to 850, 852 to 855, 858, 859, 862 to 866, 876, 894 to 896, 8156, 8181, 8199 to 8201, 8211 &8212 81 to 83, 87, 816, 817, 819, 828 to 830, only by various invoices, statement of accounts, 833, 834, 836, 837, 841 to 843, 856, 857, or monthly bills which per schedule of input VAT 860, 861, 883, 884, 898 to 8117, 8119, applied for refund as well as the schedule of 8121 to 8123, 8125 to 8128, 8132 to 8137, verified unutilized input VAT, said purchases were 8139, 8140, 8159 to 8168, 8182 to 8187, allegedly supported by official receipts having 8189, 8190, 8192, 8193, 8204 to 8209, Contained the lists of the O.R. numbers but 8213 to 8219, 8224 to 8226 & 8231

INPUT VAT

p 2,615.00 58,372.69 466,388.00 upon verification, the same were not found

(d) Input VAT on "treatment fee"' which partakes of the nature of purchases of services, supported Only by invoices not by an official receipts.

(e) Input VAT supported by a pre-printed Non-VAT official receipt stamped with the word VAT

Registered

(f) Input VAT on purchases of services which are covered by rental agreements but not supported by an invoices and official receipts.

(g) Input VAT on purchases of services which are covered by rental agreements not in the name of petitioner.

(h) Overstated amounts of input VAT

TOTAL

B77 to B79

B27

B210

B68 to B75, B85 to B92, B124, B141 to B155, B176 to B180

B31 & B81

(See also Annex A for more details of the above disallowed claim) 27,735.28 60,364.80 1,843.82 / 104,098.83 / 88,905.59 P810,324.01 We disallow Item (a) because it violates Section 238 of the 1997 National Internal Revenue Code which provides that "all persons who are engaged in business shall secure from the Bureau of Internal Revenue an authority to print receipts or sales or commercial invoices before a printer can print the same." Non- compliance with such requirement would mean that such official receipt cannot be admitted as a valid supporting document for purposes of petitioner's claim for VAT refund.

In the case of Taganito Mining Corporation vs. Commissioner of Internal Revenue, CTA Case No. 621.4, promulgated on April 22, 2002, this Court held:

Hence, out of the total claim for refund in the amount of P11,338,246.64, the sum of P162,566.30 is to be disallowed for the following reasons:

a.xxx

b. Invoices and/or official receipts have no BIR permit.

c. xxx (Emphasis supplied) Items (b), (c) and (d) are being disallowed from petitioner's claim in line with Our consistent stand on the matter as categorically enunciated in Our resolution in the case of Telecommunications Technologies Philippines, Inc. vs. Commissioner of Internal Revenue, CTA Case No. 6168, promulgated on :July 28,2004. We quote:

Indeed, at first glance, the word "or" in the statement "(1) Any input tax evidenced by a VAT invoice or official receipt xxx shall be creditable against the output tax" indicates an alternative. However, a further reading of the provisions of Section llO(A) particularly paragraph (2) (a) thereof reveals otherwise, to wit: "(2) The input tax on domestic purchases of goods or properties shall be creditable:

"(a) To the purchaser upon consummation of sale and on importation of goods or properties; and

XXX

"However, in the case of purchase of services, lease or use of properties, the input tax shall be creditable to the purchaser, lessee or licensee upon payment of the compensation, rental, or fee." (Emphasis supplied) Based on the foregoing, the input VAT on domestic purchases of goods or properties shall be allowed as tax credit to the purchaser upon consummation of sale, which means upon issuance by the seller of the VAT sales invoice evidencing the sale of goods/properties. On the other hand, the input VAT on purchases of services shall be available as tax credit to the purchaser only upon payment of the compensation or fee, i.e., upon issuance by the seller of the VAT official receipt evidencing receipt of the payment for services performed or yet to be performed.

XXX

The law is clear that in order to be allowed as tax credit or refund, the input VAT on purchase of goods or properties must be supported by a VAT invoice while the input VAT on purchase of services must be supported by a VAT official receipt. (Underscoring

Ours)

Item (e) is disallowed because it violates paragraph 3 of Section 4.108-1 of Revenue Regulation No. 7-95 which provides, that "[o]nly VAT-registered persons are required to print their TIN followed by the word 'VAT' in their invoices or receipts and this shall be considered as a 'VAT Invoice'. All purchases covered by invoices other than 'VAT Invoice' shall not give rise to any input tax". Moreover, paragraph (c) of the Transitory Provisions provided for under the aforesaid regulations, states:

(c) Unused invoices or receipts. -Taxpayers who changed status from NON-VAT to VAT or from VAT to NON-VAT as a result of the implementation of RA 7716 should submit on or before January 31, 1996 an inventory of unused invoices or receipts as of December 31, 1995 indicating the number of booklets and the corresponding serial numbers. Unused non-VAT invoices/receipts shall be allowed for use in transactions subject to VAT provided the phrase "VAT-registered as of __ " is stamped on all copies thereof. Likewise, unused VAT invoices/receipts shall be allowed in VAT-exempt transactions provided the phrase "Non-VAT registered as of __ " is stamped on all copies thereof. These unused invoices or receipts with the proper stamp shall be allowed for use in transactions subject to VAT/NON-VAT up to June 30, 1996.

Thus, the unused non-VAT invoices or receipts shall be allowed for use in transactions subject to VAT provided the phrase "VAT-registered as of __ " is stamped on all copies thereof. However, such unused non-VAT invoices or receipts bearing the proper stamp shall be allowed for use in transactions subject to VAT only up to June 30, 1996.

Since the unused non-VAT official receipt of this case (Exhibit 827) was issued only on July 10, 1999, indubitably, the same is beyond the limitation provided in the subject transitory provision and could no longer be admitted as a valid evidence to support petitioner's claim for tax refund. As to Items (f) and (g), the same are disallowed because both violated Section 4.104-5 of Revenue Regulation No. 7-95 which provides: Section 4-104-5. Substantiation of claims for input tax credit. - (a) Input taxes shall be allowed only if the domestic purchase of goods, properties or services is made in the course of trade or business. The input tax should be supported by an invoice or receipt showing the information as required under Section 108(a) and 238 of the Code.

Input tax on purchases of real property should be supported by a copy of the public instrument i.e. deed of absolute sale, deed of conditional sale, contract/agreement to sell, etc., together with the VAT receipt issued by the seller. (Underscoring Ours) Furthermore, Item (g) violated Section 4.108-1 of the said Revenue Regulations which provides, viz :

Section 4.108-1. Invoicing Requirements -

All VAT-

registered persons shall, for every sale or lease of goods or properties or services, issue duly registered receipts or sales or commercial invoices which must show:

1. the name, TIN and address of seller;

2. date of transaction;

3. quantity, unit cost and description of merchandise or nature of service;

4. the name, TIN, business style, if any, and address of the VAT-registered purchaser, customer or client;

5. the word "zero-rated" imprinted on the invoice covering zero-rated sales; and

6. the invoice value or consideration. (Underscoring ours) Finally, Item (h) which undoubtedly pertains to the P88,905.59 overstated amount of input VAT, is disallowed because petitioner is only entitled to an actual amount of input VAT it paid to the government.

It bears stressing once again that tax refunds are in the nature of tax exemptions. As such, they are regarded as in derogation of sovereign authority and to be construed in strictissimi juris against the person or entity claiming the exemption (Commissioner of Internal Revenue vs. Procter and Gamble Phil. Mfg. Corp., 204 SCRA 377; Commissioner of Internal Revenue vs. S.C. Johnson & Son, Inc., 309 SCRA 87).

In sum, We find petitioner to have sufficiently proven its claim for refund or the issuance of a tax credit certificate representing its unutilized/excess input VAT but only in the reduced amount of P398,708.77 (see Annex A), computed as follows: Amount recommended by the commissioned auditor P1,209,032.78 Less: Disallowances per Court's verification 810,324.01 Amount to be claimed for refund/tax credit P 398,708.77

WHEREFORE, the instant petition is PARTIALLY GRANTED. Accordingly, respondent is hereby ORDERED to REFUND or ISSUE a TAX CREDIT CERTIFICATE in favor of the petitioner in the amount of P398,708.77 representing unutilized/excess input VAT at the time petitioner permanently ceased operations in the Philippines on November 30, 2000.

SO ORDERED.

L R. BAUTISTA

WE CONCUR:

(With Concurring and Dissenting Opinion)

ERNESTO D. ACOSTA

Presiding Justice

~ CAESAR A. CASANOVA

Associate Justice

CERTIFICATION

I hereby certify that the above decision was reached after due consultation with the members of the Division of the Court of Tax Appeals in accordance with Section 13, Article VIII of the Constitution. ~~-~ ERNESTO D. ACOSTA Chairman, First Division

Presiding Justice

AnnexA

EXHIBIT PAYEE

INPUT VAT

TOTAL

COMMENTS

B39

Autofix Repair Shop

2,615.00 2,615.00 No SIR permit to print

B44

725.24 OR was stated in the sununary but not offered as evidence

B140

Black Yield Security Serv

609.14 OR was stated in the summary but not offered as ~:vidence __ --- -- ®

B159

Masigasig Security & Ma

16,824.96 OR was stated in the summary but not offered as evidence

B16

Globe Telecom

2 118.91 OR was stated in the summary but not offered as evidence

B160

Masigasig Security & Ma

17,876.52 OR was stated in the summary but not offered as evidence

B161

Nippon Express Philippin

1,915.18 OR was stated in the summary but not offered as evidence B l62

[Operation and Maintenan

2,722.50 OR was stated in the summary but not offered as evidence

B17

lnfocom Technologies Inc 68.41 OR was stated in the summary but not offered as evidence

B182

Masigasig Security & Ma

B208

Black Yield SecurityServ

1,055.40 OR was stated in the summary but not offered as evidence

B209

Black Yield Security Serv

Black Yield Security Serv

B178

Filcar Transport Services

B179

Filcar Transport Services

B180

Filcar Transport Services

B68

Filcar Transport Services

B69

Filcar Transport Services

B70

Filcar Transport Services

B71

Filcar Transport Services

B72

Filcar Transport Services

B73

Filcar Transport Services

B74

Filcar Transport Services

B75

Filcar Transport Services

B85

Filcar Transport Services

B86

Filcar Transport Services

B87

Filcar Transport Services

B88

Filcar Transport Services

B89

Filcar Transport Services

B90

Filcar Transport Services

B91

Filcar Transport Services

B92

Filcar Transport Services

B31

Harmony Homes Inc

B81

Masigasig_ Security & Ma

B77

Inchem Environmental, Ir

B78

Inchem Environmental, lr

B79

Inchem Environmental, lr PER REPORT 1,209,032.78 Amount to be Refunded

B10

B118

B12

GDA International Corpo1

43,652.10

B97

Masigasig Security & Ma

20,574.00