Government of Singapore Investment Corporation Pte Ltd. vs. Commissioner of Internal Revenue

DECISION

erA Case No. 8437

Page 3 of 15

PHY6972FAV23

23,500,000

PHY6972FAZ37

9,000,000

PHY6972FMZ09

9,920,853

PHY6972FAV23

329,000,000

PHY6972FAZ37

126,000,000

PHY6972FHT04

950,000,000

PHY6972FAV23

329,000,000

PHY6972FAZ37

126,000,000

PHY6972FBK58

700,000,000

PHY6972FKN96

1,300,000,000

PHY6972FHT04

950,000,000

PHY6972FMZ09

138,891,942

PHY6972FMZ09

1,559,250,300

PHY6972FKN96

3,200,000,000

PHY6972FJC50

11,270,000,000

PHY6972FHT04

950,000,000

PHY6972FAV23

117,500,000

PHY6972FAZ37

45,000,000

PHY6972FAV23

117,500,000

PHY6972FAZ37

45,000,000

PHY6972FMZ09

49,604,265 8.5 20 09/03/10 8.75 20 09/03/10 5.875 20 06/15111

Account Group C

8.5 20 03/03/10 8.75 20 03/03/10 7.875 20 08/19110 8.5 20 09/03/10 8.75 20 09/03/10 9.125 20 09/06/10 5.25 20 01/07/11 7.875 20 02/21/11 5.875 20 06/16/11 5.875 20 06/16/11 5.25 20 07/07/11 6.25 20 07/27/11 7.875 20 08/19/11

Account Group H

8.5 20 03/03/10 8.75 20 03/03110 8.5 20 09/03/10 8.75 20 09/03/10 5.875 20 06/16/11 998,750 199,750 799,000 393,750 78,750 315,000 291,425.06 58,285.01 233,140.05 13,982,500 2,796,500 11,186,000 5,512,500 1,102,500 4,410,000 37,406,250 7,481,250 29,925,000 13,982,500 2,796,500 11,186,000 5,512,500 1,102,500 4,410,000 31,937,700 6,387,500 25,550,000 34,125,000 6,825,000 27,300,000 37,406,250 7,481,250 29,925,000 4,079,950.80 815,990.16 3,263,960.64 45,802,977.56 9,160,595.51 36,642,382.05 84,000,000 16,800,000 67,200,000 352,187,500 70,437,500 281,750,000 37,406,250 7,481,250 29,925,000 4,993,750 998,750 3,995,000 1,968,750 393,750 1,575,000 4,993,750 998,750 3,995,000 1,968,750 393,750 1,575,000 1,457,125.28 291,425.06 I, 165,700.22 The final withholding taxes on petitioner's interest income from T-Bonds were withheld and remitted to the BIR by the Bureau ofTreasury.6 On January 16, 2012, petitioner filed with the BIR an administrative claim for refund or issuance of tax credit certificate in the amount of P148,910,045.74, representing the FWT erroneously withheld on the interest income derived by petitioner from its investments in T-Bonds from February 2010 to November 2011.7 Petitioner filed the instant Petition for Review on March 5, 2012, in order to preserve its right and to toll the running of the prescriptive period to file its judicial claim. s In her Answer9, respondent alleged the following special and affirmative defenses:

erA case No. 8437

"SPECIAL AND AFFIRMATIVE DEFENSES On the basis of the foregoing allegations and in further support of the Specific Denials herein set forth, respondent respectfully alleges as her affirmative defense that:

4. Taxes collected are presumed to be in accordance with laws and regulations.

5.

Petitioner's alleged claim for refund is subject to administrative routinary investigation/ examination by the Bureau of Internal Revenue. A claim for refund is not ipso facto granted because respondent CIR still has to investigate and ascertain the validity of the claim.

6. Taxes are essential to government's very existence; (CIR v.

Solidbank Corporation, G.R.

No.

148191, November 25, 2003) hence, the dictum that 'taxes are the lifeblood of the government.' For this reason, the right of taxation cannot easily be surrendered; statutes granting tax exemptions are considered as a derogation of the sovereign authority. (CIR v. Fortune Tobacco Corporation, G.R. Nos. 167274-75, July 21, 2008) Since tax refunds are regarded as tax exemptions therefore, these are to be construed strictissimi juris against the person or entity claiming the exemption. (Philippine Phosphate Fertilizer Corporation vs. Commissioner of Internal Revenue G.R. 141973, June 28, 2005)

7. In an action for refund, the burden of proof is on the taxpayer who claims the exemption and he must justify his claim by the clearest grant under the Constitution or statutory law and cannot be permitted by vague implications (BPI Leasing Corporation vs. Honorable Court of Appeals, G.R. 127624, November 18, 2003) The taxpayer is charged with the heavy burden of proving that he has complied with and satisfied all the statutory and administrative requirements to be entitled to the tax refund.

(Commissioner

of

Internal

Revenue

vs.

Eastern

Telecommunications Philippines, Inc., G.R. 163835, July 7, 2010).

8. The BIR Ruling DA 130-02 cited by petitioner is peculiar only to the requesting party. It is binding and applicable only between the BIR and the requesting party. Furthermore, a BIR Ruling is not a law and is more of an opinion given upon a taxpayer's request that may later on be revoked should the facts represented upon application prove to be contrary later on. The revocable character of a BIR Ruling is manifestly indicated in the usual caveat thereon to wit:

DEOSION

'This ruling is being issued on the basis of the foregoing facts as represented. However, if upon investigation, it will be disclosed that the facts are different, then this ruling shall be considered null and void.'

9. There must be proof of compliance with the rules on tax recovery under Section 204(c) and Section 229 of the NIRC of 1997. Petitioner must file its administrative and judicial claims for refund or issuance of tax credit certificate within two (2) years from the date of payment of the tax. 10.

The Petition for Review was filed on March 5, 2012 for the remittances made during the period of February 2010 to November 2011 from Treasury Bonds investments. Consequently, petitioner had until February 2012 within which to file the judicial claim for refund. Petitioner slept on tis right and allowed the period within which to file the present petition to lapse. Petitioner should therefore, suffer the consequence of its omission to exercise its rights. Based on the foregoing, petitioner's judicial claim for refund was filed out of time. Therefore, the instant petition should be dismissed.

11. Following the premise above-mentioned, petitioner has the burden of proving that the right to such tax refund indubitably exists and well-founded doubt is fatal to the claim."

Petitioner presented the following witnesses: Ms. Marites B. Masarap10 -

Chief of the National Government Debt

Accounting Division of the Bureau of Treasury; Atty. Alexander

0. Ner11 -Associate at Salvador and Associates Attorneys-at- Law ("S & A" for brevity); Atty. Mardomeo N. Raymundo, Jr. 12- Senior Associate at S & A; and Ms. Celeste Fe Guevarra-

Tanseco13 -

Vice President and Operations Head of the

Securities and Fund Services Department of Citibank. Moreover, petitioner presented and formally offered Exhibits "B" to "AAA-1", inclusive of their sub-markings.14

Exhibits

"B" to "0" and "Q" to "AAA" were admitted by the Court in its Resolutions dated October 23, 201315 and January 20, 201416, after petitioner filed a Motion for Reconsideration 17. However,

erA Case No. 8437 the Court denied the admission of Exhibit "P" for not being identified during trial.ts Respondent, on the other hand, waived her right to present evidence.t9 Thereafter, the Court ordered both parties to submit their respective memoranda. On February 24, 2014, petitioner filed an Urgent Omnibus Motion20 to reopen the case for the presentation of additional evidence and defer the submission of memoranda; which the Court, in the interest of justice, granted in the Resolution21 dated March 26, 2014.

Petitioner presented Atty. Gia Angeli R. Geraldez22 - Junior Associate at S & A, as an additional witness and

Exhibits "F-3" "H-21" "H-22" "J-23" "K-1" "BBB" "BBB-1"

' ' ' ' ' ' '

"CCC" "DDD" "EEE" "FFF" "GGG" "GGG-1" "HHH" and

' ' ' ' ' ' ' "HHH -1" as additional documentary evidence;23 which were admitted by the Court via Resolution24 dated July 4, 2014. Petitioner filed its Memorandum25 on August 28, 2014; while respondent filed her Memorandum26 through registered mail on October 3, 2014.27 Thereafter, the case was submitted for decision on October 20, 2014.28

ISSUES

The issues29 stipulated by the parties for this Court's resolution are as follows:

18 Resolution, docket, p. 636.

19 Resolution, docket, p. 641.

20 Docket, pp. 672 to 679.

21 Docket, pp. 690 to 692.

22 Minutes of the Hearing dated May 19,2014, docket, p. 742. 23 Supplemental Formal Offer of Evidence, docket, pp. 743 to 752. 24 Docket, pp. 809 to 810.

" Docket, pp. 821 to 850.

26 Docket, pp. 875 to 883.

27 Received by the Court on October 16, 2014.

1. Whether or not petitioner derived interest income in the gross amount of Php744,550,228.70 from its investments in Philippine T-Bonds for the period February 20 10 to November 2011;

2. Whether or not the interest income derived by petitioner from its investments in Philippine T-Bonds for the period February 2010 to November 2011 was made subject to FWT at the rate of 20%;

3. Whether or not the FWT on petitioner's interest income from Philippine T-Bonds for the period February 2010 to November 2011, amounting to Php148,910,045.74 was remitted and paid to the BIR;

4. Whether or not the interest income derived by petitioner from its investments in Philippine T-Bonds is exempt from income tax under Section 32(B)(7)(a), Tax Code and Section 2.57.5, Revenue Regulations No. 2-98; and

5. Whether or not petitioner filed its administrative and judicial claims for refund of or issuance of TCC in the amount of Php148,910,045.74, representing the FWT withheld on the interest income derived by petitioner during the period February 2010 to November 2011 from its investments in Philippine T-Bonds, within the two-year prescriptive period provided under Sections 204(C) and 229, Tax Code.

The foregoing issues can be summarized as follows: "Whether or not petitioner is entitled to a refund or issuance of tax credit certificate in the amount of 1"148,910,045.74, representing the FWT withheld on the interest income derived by petitioner from its investments in T- Bonds during the period of February 2010 to November 2011."

DEQSION

DISCUSSION /RULING

The principal issue raised in this case was also the issue in CTA Case No. 772630, CTA EB No. 68931, CTA Case No. 803032, and CTA EB No. 95833, which involved the same parties.

In those cases, the Court ruled in favor of herein petitioner. Similarly, the Court now rules for petitioner. It is a generally accepted principle in taxation that the burden of proof to establish the factual basis of a claim for tax credit or refund lies on the claimant. 34 Tax refunds are in the nature of tax exemptions. As such, they are to be construed strictissimi juris against the person or entity claiming the refund. 35 In order for petitioner to be entitled to a refund of erroneously paid taxes, it must comply with the requisites provided by law. Section 229 of the NIRC of 1997, as amended, provides:

"SEC. 229. Recovery of Tax Erroneously or fllegally 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: Provided, however, That the Commissioner may, even without claim therefor, refund or credit any tax, where on the face of the return upon which payment was made, such payment appears clearly to have been erroneously paid."

30 Promulgated on April29, 2010.

31 Promulgated on June 10, 2011.

32 Promulgated on September 5, 2012. 33 Promulgated on March 31,2014.

34 Citibank, N.A. vs. Court of Appeals and the Commissioner of Internal Revenue, G.R. No. 107434, October 10, 1997.

35 Commissioner of Internal Revenue vs. S.C. Johnson & Son, Inc., eta/., G.R. No. 127105, June 25, 1999.

DEOSION

erA case No. 8437

Page 9 of 15

Based on the afore-quoted prov1s10n, in order to be entitled to a refund, petitioner must be able to prove the following:

1. That the tax has been erroneously or illegally collected, or the penalty has been collected without authority, and/or any sum has been excessively or m any manner wrongfully collected; and

2. That the claim for refund or credit must have been filed within two (2) years from the date of payment of the tax or penalty, regardless of any supervenmg cause that may arise after payment.

First Requisite: Tax

erroneously or collected has been illegally Applicable to the resolution of this issue are Section 32(B)(7)(a) of the NIRC of 1997, as amended, and Section 2.57.5 of Revenue Regulations (RR) No. 2-98, as amended, which are quoted hereunder for ready reference: "SEC. 32. Gross Income. -

XXX

XXX

XXX

(B) Exclusions from Gross Income. - The following items shall not be included in gross income and shall be exempt from taxation under this Title:

XXX

XXX

XXX

(7) Miscellaneous Items. -

(a) Income Derived by Foreign Government. - Income derived from investments in the Philippines in loans, stocks, bonds or other domestic securities, or from interest on deposits in banks in the Philippines by (i) foreign governments, (ii) financing institutions owned, controlled, or enjoying refinancing from foreign governments, and (iii) international or regional financial institutions established by foreign governments."

"SECTION 2.57.5. Exemption from Withholding. - The withholding of creditable withholding tax prescribed in these Regulations shall not apply to income payments made to the following:

XXX

XXX

XXX

(B) Persons enjoying exemption from payment of income taxes pursuant to the provisions of any law, general or special, such as but not limited to the following:

XXX

XXX

xxx" Pursuant to the above-quoted provisions, in order for the interest income received by petitioner from its investments in T-Bonds to be exempt from income tax and consequently, from FWT, petitioner must be (1) a foreign government, or (2) a financing institution owned, controlled, or enjoying refinancing from foreign governments, or (3) an international or regional financial institution established by foreign governments. It has already been settled by this Court in CTA Case No. 674536 and in CTA Case No. 772637, wherein the same parties are involved, that petitioner is a financing institution wholly- owned and controlled by the Government of Singapore. As such, pursuant to Section 32(B)(7)(a) of the NIRC of 1997, as amended, petitioner 1s exempt from mcome tax and consequently, from FWT on income derived from its investments in T-Bonds.

Thus, the 20% final tax withheld from the interest mcome earned was erroneously or illegally collected.

Petitioner presented the following documentary evidence to prove that petitioner erroneously paid the final tax of 20% on its interest income from Philippine T-Bonds:

1. Exhibit "E" - Bureau of Treasury Certification dated February 22, 2012, confirming the amount of interest income derived by the T- Bonds recorded under Citibank's Registry of 36 Promulgated on June 6, 2008.

37 Promulgated on April29, 2010.

DEOSION

ITA Case No. 8437

Page 11 of 15

Scripless Securities (ROSS) Custodian Account

with the Bureau of Treasury for the calendar years 2010 to 2011;38

2. Exhibit "F-1" - Bureau of Treasury's Statement of Final Taxes Withheld on the Coupon Due on the T-Bond Holdings of Citibank for the period February 1, 2010 to December 31, 2010;39

3. Exhibit "F-2" - Bureau of Treasury's Statement of Final Taxes Withheld on the Coupon Due on the T-Bond Holdings of Citibank for the period January 1, 2011 to November 30, 2011;40

4. Exhibit "F-3" - Bureau of Treasury's Statement of Final Taxes Withheld on the Coupon Due on the T-Bond Holdings of Citibank for the period July 1, 2010 to December 31, 2010;41

5. Exhibit "G" - Bureau of Treasury's Schedule of Taxes Withheld on the Coupons due on T-Bond holdings of Citibank for the period 20 10 to 2011;42

6. Exhibits "H-1" to "H-22" -

Journal Entry

Vouchers covering the withholding of final tax on coupons and the remittance of the FWT to the BIR;43

7. Exhibits "J-1" to "J-23" - MT566 Confirmation Advice, covering the credit of the amount to petitioner's account with Citibank, representing the net coupons on petitioner's T-Bonds;44

8. Exhibit "K" - Citibank's Entitlement Report for petitioner's Custody Accounts (Accounts "B",

"C", and "H") for the period February 2010 to November 2011;45

9. Exhibit "K-1" - Citibank's Amended Entitlement

Report

for petitioner's

Custody

Accounts

(Accounts "B", "C", and "H") for the period February 2010 to November 2011;46

10. Exhibit

"ZZ"

BIR,

Revenue

Accounting

Division Certification No. RAD-13-09-004-Cert. dated September 4, 2013, confirming the receipt of the FWT due on the Bureau of Treasury's coupon payments to Citibank's ROSS Custodian Account for the period 2010 to 2011;47

11. Exhibit "CCC" -

Certificate of Final Tax

Withheld at Source (BIR Form No. 2306) issued by the Bureau of Treasury in favor of Citibank covering FWT in the amount of P7,005,308.95, representing the

FWT on Citibank ROSS

Custodian Account's coupon entitlement for T- Bond ISIN PIBD0716A488 on July 27, 2010;48

12. Exhibit "DDD" -

Certificate of Final Tax

Withheld at Source (BIR Form No. 2306) issued by the Bureau of Treasury in favor of Citibank covering FWT in the amount of P50,659,077.50, representing the

FWT on Citibank ROSS

Custodian Account's coupon entitlement for the period February 1, 2010 to December 31, 2010·49 '

13. Exhibit "EEE" -

Certificate of Final Tax

Withheld at Source (BIR Form No. 2306) issued by the Bureau of Treasury in favor of Citibank covering

FWT

in the amount of P132,823,360.48, representing the FWT on Citibank ROSS Custodian Account's coupon 45 Docket, pp. 569 to 570.

46 Docket, pp. 763 to 764.

47 Docket, p. 614.

48 k Doc et, p. 768.

49 Docket, p. 769.

DEOSION

entitlements for the period January 1, 2011 to November 30, 2011;50 and

14. Exhibit "FFF"

BIR Revenue Accounting

Division Certification No. RAD-14-05-045-Cert. dated May 9, 2014, confirming the receipt of the FWT due on the Bureau of Treasury's coupon payments to

Citibank's

ROSS

Custodian

Account on July 30, 2010.51 The Certification dated February 22, 2012 shows that the Bureau of Treasury certified that the FWT, in the total amount ofP183,482,437.98, was withheld from the coupons due to the T-Bond holdings, under Citibank's ROSS Custodian Account, for the period of February 2010 to November 2011. Also, the Certificates of Final Tax Withheld At Source or BIR Form No. 2306, issued by the Bureau of Treasury in favor of Citibank, show that the amounts of P7,005,308.9552, P50,659,077.5053, and 1"132,823,360.4854 have been withheld by the Bureau of Treasury in favor of Citibank. Moreover, BIR Revenue Accounting Division Certification Nos. RAD-13-09-004-Cert. dated September 4, 201355 and RAD-14-05-045-Cert. dated May 9, 20 1456 confirmed the receipt of the FWT due on Bureau of Treasury's coupon payments to Citibank's ROSS Custodian Account for the same period.

In the Sworn Statement of Ms. Celeste Fe Guevarra- Tanseco to Questions Propounded by Atty. Alexander 0. Ner,57 Ms. Guevarra-Tanseco attested to the fact that the amount of Pl48,910,045.74, which was part of the 1"183,482,437.98, withheld by the Bureau of Treasury from Citibank's ROSS Custodian Account, was petitioner's FWT on its gross coupon entitlement on its investments in T-Bonds for the period of February 2010 to November 2011.

Second

Requisite:

Claim

for refund filed within two years from the date of payment of the tax The Bureau of Treasury remitted and paid to the BIR the FWT on the first coupon payment on March 5, 2010,58 giving petitioner until March 5, 2012, within which to file its claim for refund or issuance of tax credit certificate, both administratively and judicially. Therefore, both petitioner's administrative claim for refund filed on January 16, 201259 and judicial claim filed on March 5, 201260 were filed within the two-year prescriptive period.

Evidently, the second requirement has been satisfied.

From all the foregoing, the Court finds that petitioner has sufficiently established its entitlement to a refund or issuance of tax credit certificate for its erroneously withheld final tax in the amount ofP148,910,045.74.

WHEREFORE, premises considered, the present Petition for Review is hereby GRANTED.

Accordingly, respondent is hereby ORDERED TO REFUND or TO ISSUE A TAX CREDIT CERTIFICATE in favor of petitioner in the amount of ONE

HUNDRED FORTY-EIGHT MILLION NINE HUNDRED TEN

THOUSAND

FORTY-FIVE

PESOS

AND

74/100 (P148,910,045.74), representing erroneously withheld final tax.

Associate Justice

WE CONCUR:

~c.~~~

SL_

JtJANITO C. CASTANE'IfA; JR.

(on official business) CAESAR A. CASANOVA

Associate Justice

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. ~~c.

a.r~'"'' Q JUANITO c. CASTANEOA, JR.

Associate Justice

Chairperson

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution and the Division Chairperson's Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

Presiding Justice