Lepanto Consolidated Mining Company vs. Commissioner of Internal Revenue

DECISION

BAUTISTA, J.:

The Case

Before the Court is a Petition for Review¹ filed by petitioner Lepanto Consolidated Mining Company on November 17, 2014, pursuant to Section 7(a)(²)2 of Republic Act ("RA'') No. 11253, as amended by RA No. 92824 and RA No. 95035, which seeks for the

Court to render judgment declaring petitioner entitled to a tax credit certificate ("TCC") in the amount of Fifteen Million Seven Hundred and Eight Thousand Seven Hundred Ninety-Five and 39/100 Pesos (Php15,708,795.39), representing unutilized input value added tax ("VAT") attributed to petitioner's zero-rated export sales in the second half of 2012, and ordering respondent Commissioner of Internal Revenue ("CIR") to issue to petitioner a TCC in the said amount.6

The Parties

Petitioner is a duly organized and existing domestic corporation engaged in mining of gold and other precious metals, with principal place of business at 21/F Lepanto Bldg., 8747 Paseo de Roxas St., Barangay Bel Air, Makati City? Petitioner registered with, and authorized by, the Board of Investments ("BOI'') as a new export producer/ non-pioneer for gold bullions8 under BOI Certificate of Registration No. EP 2004-0019, issued on January 5, 2004. Petitioner is a duly registered VAT taxpayer with Taxpayer's Identification No. 000-160-247-000 since 1994 continuously up to the present.lO Respondent is the duly appointed CIR, who has authority to grant tax credits under the law, and holds office at the 5th Floor, BIR National Office Building, Agham Road, Diliman, Quezon City.11

The Facts

Petitioner filed its Quarterly VAT Return (BIR Form No. 2550- Q) for the third and fourth quarters of 2012 on October 17, 201212 and January 23, 201313. It then filed two (2) amended returns for the third quarter on January 23, 201314 and April10, 201315; and one (1) for the fourth quarter on April10, 201316.

5 An Act Enlarging the Organizational Structure of the Court of Tax Appeals, Amending for the Purpose Certain Sections of the Law Creating the Court of Tax Appeals, and for Other Purposes. 6 Records, Vol. 1, PFR, Prayer, p. 13.

7 Id., Vol. 2, Joint Stipulation of Facts and Issue ("JSFI"), Stipulation of Facts, par. 1, p. 1033. s Id., Exhibit "P-9-A, "Certification from BOI, p. 1173. 9 Id., Exhibit "P-3," BOI Certificate of Registration No. EP 2004-001, p. 1162. 10 Id., JSFI, Stipulation of Facts, par. 3, p. 1033. n Id., par. 2, p. 1033.

12 Box 1 of1, Exhibits "P-12-C," Quarterly VAT Return (BIR Form No. 2550-Q), Third Quarter 2012. 13 Id., Exhibits "P-13-B," Quarterly VAT Return (BIR Form No. 2550-Q), Fourth Quarter 2012. 14 Id., Exhibits "P-12-B," Quarterly VAT Return (BIR Form No. 2550-Q), Third Quarter 2012, First Amended.

(

On June 20, 2014, the BIR VAT Credit Audit Division received petitioner's Applications for Tax Credits/Refunds (BIR Form No. 1914) for the periods July 1 to September 30, 201217 and October 1 to December 31, 201218, claiming for TCCs in the amounts of Php9,821,453.32 and Php5,887,342.07, respectively, representing unutilized or unapplied creditable input VAT. Petitioner likewise submitted documents in support of its applications for tax credits.19 On account of the BIR' s inaction, petitioner filed the present Petition for Review2o on November 17, 2014. On December 4, 2014, the Court issued a Summons21, requiring respondent to file his Answer to the Petition for Review. After being granted an extension,22 on January 23, 2015, respondent filed an Answer23, wherein he raised the following special and affirmative defenses: (1) the power of taxation is an inherent attribute of sovereignty, hence, the right to taxation cannot easily be surrendered; (2) the law frowns upon exemptions from taxation, and statutes granting tax exemptions are construed strictissimi juris against the taxpayer and liberally in favor of the taxing authority; (³) the taxpayer is charged with a heavy burden of proving that he has complied with and satisfied all the statutory and administrative requirements to be entitled to the tax refund, and that it is incumbent upon petitioner to establish its right to a tax refund or TCC; and (⁴) that petitioner's claim for refund is not properly documented. On February 27, 201524 and March 6, 201525, respondent and petitioner filed their respective Pre-Trial Briefs. 15 Box 1 of 1, Exhibits 11P-12-A, II Quarterly VAT Return (BIR Form No. 2550-Q), Third Quarter 2012, Second Amended.

16 Id., Exhibits 11P-13-A, 11 Quarterly VAT Return (BIR Form No. 2550-Q), Fourth Quarter 2012, Amended.

17 Records, Vol. 2, Exhibit ~~P-6," Applications for Tax Credits/Refunds (BIR Form No. 1914), July to September 2012, p. 1169 18 Id., Exhibit 11P-7," Applications for Tax Credits/Refunds (BIR Form No. 1914), October to December 2012, p. 1170.

19 I d., Exhibit 11 P-8," Checklist of Mandatory Requirements for Claims for VAT Credit/Refund, p. 1171. 2o Id., Vol. 1, PFR, pp. 6-46, with annexes. 21 Id., Summons, p. 47.

22 Records, Vol. 1, Motion for Extension of Time to File Answer, pp. 48-51; Records, Vol. 1, Order, p. 52. 23 Id., Answer, pp. 59-65.

24 Id., Respondent's Pre Trial Brief, pp. 70-74. 25 I d., Pre-Trial Brief pp. 78-83.

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On March 19, 2015, the parties filed their Joint Stipulation of Facts and Issues26 ("JSFI"). Thereafter, the Court issued a Pre-Trial Order27 on April1, 2015.

During trial, petitioner presented the following witnesses: (1) the Court-commissioned28 Independent Certified Public Accountant ("ICPA") Mr. Glenn Ian D. Villanueva ("Mr. Villanueva")29; (2) Mr. Teofilo Sacpa3o ("Mr. Sacpa"), petitioner's Chief Accountant; and (3) Ms. Angeline Mendoza Bangloy31 ("Ms. Bangloy"), petitioner's Clearing Staff under its Purchasing Department. Mr. Villanueva testified via judicial affidavit32 that as the Court- commissioned ICP A, he was tasked to evaluate the merits of petitioner's claim for tax refund or TCC of its input VAT paid in the second semester of 2012, to review and audit petitioner's documents and/ or evidence supporting such claim, and to submit a report thereon; and that he submitted his report to the Court. Mr. Villanueva stated that based on his findings, petitioner is entitled to a tax refund or TCC of its third and fourth quarters 2012; and that his findings were based on the original and/ or certified true copies that were given to him by petitioner.

Mr. Sacpa testified via judicial affidavit33 that as petitioner's Chief Accountant, it is his duty to oversee and manage all the accounting and tax concerns of petitioner, including its claims for tax refund and/ or TCC. Mr. Sacpa stated that he caused the filing of two

(2) applications for tax refund/TCC, specifically, for the third and fourth quarters of 2012, amounting to Php9,821,453.32 and Php5,887,342.07, respectively, on June 20, 2014; that on the day the applications for refund were filed, the BIR checked for all the required documents in support of the applications based on the BIR

Checklist of Mandatory Requirements for Claims for VAT

26 Records, Vol. 2, JSFI, pp. 1033-1039.

27 Id., Pre-Trial Order ("PTO"), pp. 1041-1046. 28 Id., Minutes of Hearing on March 10, 2015, p. 1026. 29 I d., Minutes of Hearing on May 5, 2015, p. 1120. 30 I d., Minutes of Hearing on July 7, 2015, p. 1123. 31 Id., Minutes of Hearing on September 1, 2015, p. 1142. 32 Records, Vol. 2, Exhibit "P-40," Judicial Affidavit [Of Commissioned [ICPA], Glenn Ian D. Villanueva], pp. 1181-1188.

Credit/Refund; and that the BIR stamped "Complete as to Requirements" on the said applications.

Ms. Bangloy testified via judicial affidavit34 that petitioner imported inventory, equipment, materials, products, and goods necessary in its mining operations in Mankayan, Benguet; and that after the items were imported to the Philippines, petitioner would withdraw the same from the Bureau of Customs, after full payment of all the duties and taxes due, and the items are ultimately brought to the Inventory Management Department ("IMD"). Ms. Bangloy stated that they have documents to prove that all the duties and taxes on the importations were paid, i.e., the import entry and internal revenue documents ("IEIRD"), Statements of Settlement of Duties

and Taxes

("SSDT"), and Single Administrative Documents ("SAD"s), and that these documents formed part of the ICPA Report. According to Ms. Bangloy' s statement, the IMD is in charge of the management and custody of all the inventory needs of the company for its mining operations in Mankayan, Benguet; that after the imported inventory, equipment, materials, goods, and products were brought to the IMD, the end-users of petitioner retrieve them and use them in the mining operations of the company- either in the underground mining of gold ores or in the milling/ processing of such gold ores into gold bars, which were then eventually exported by petitioner.

On September 11, 2015, petitioner filed its Offer of Exhibits35 submitting Exhibits "P-1," "P-2," "P-3-A" to "P-3-C," "P-4-A," "P-5," "P-6," "P-7," "P-8," "P-9," "P-9-A," "P-10-A" to "P-10-C," "P-11" to "P-11-C," "P-12-A" to "P-12-C," "P-13-A" to "P-13-B," "P-14-A" to "P-14-B," "P-15-A" to "P-15-D," "P-16-A" to "P-16-AH," "P-17-A" to "P-17-AG," "P-18-A" to "P-18-AE," "P-19-A" to "P-19-AE," "P-20-A" to "P-20-AJ," "P-21-A" to "P-21-D," "P-22-A" to "P-22-L," "P-23-A" to "P-23-Y," "P-24-A" to "P-24-CF," "P-25-A" to "P-25-DW," "P-26- A" to "P-26-AQ," "P-27-A" to "P-27-B," "P-28-A," "P-29-A" to "P-29- N," "P-30-A" to "P-30-C," "P-31," "P-32," "P-33 series," "P-34-A" to "P-34-H," "P-35-A" "P-36-A" to "P-36-E," "P-37-A" to "P-37-BO," "P- 38-A," "P-39," "P-40," and "P-41," for the purposes indicated. 34 Records, Vol. 2, Exhibit "P-42," Judicial Affidavit of Ms. Angeline Mendoza Bangloy, pp. 1124-1141, with annexes.

35 Id., Offer of Exhibits, pp. 1143-1149.

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On October 6, 2015, the Court resolved36 to admit only Exhibits "P-39," "P-40," and "P-41;" but rejected most of the other exhibits for not being found on the records, for failure to identify in open court, for failure to correspond with the marked document on record, and for failure to bear the proper markings.

On October 23, 2015, petitioner filed an Omnibus Motion [For Reconsideration of the Honorable Court's Resolution Dated 6 October 2015; and to Re-Open Petitioner's Presentation of Evidence and Recall its Witness [Mr. Sacpa] and to Re-Mark Exhibits)37 ("Motion for Reconsideration"). This was partially granted38 by the Court on November 16, 2015, hence, admitting Exhibits "P-1," "P-2," "P-5," "P-6," "P-7," "P-8," "P-9," "P-11," and "P-31;" ordering petitioner to submit a Supplemental Judicial Affidavit of ICPA

Villanueva

to incorporate

Exhibit

"P-32;"

and setting a commissioner's hearing for the re-marking of the other exhibits. After being granted an extension, petitioner submitted its Supplemental Judicial Affidavit [Of Commissioned Independent Certified Public Accountant, Glenn Ian D. Villanueva)39 on December 7, 2015 via registered mail.

On April 19, 2016, petitioner filed a Manifestation and Motion40 requesting that it be clarified as to the reason why majority of its evidence were denied for failure to bear the proper markings, despite the fact that said evidence were marked and filed with the Court by the ICP A; and that the only defect it found in the Offer of Evidence is with respect to the Exhibit "P-23 series," which was done by oversight and honest mistake; that what was offered as evidence is only up to Exhibit "P-23-Y," while what was marked was only up to Exhibit "P- 23-DY;" that the pieces of evidence are already part of the case records as they were already submitted as part of the ICPA Report; and that it prays that it be allowed to offer in evidence Exhibits "P-23- AA" to "P-23-DY."

36 Records, Vol. 2, Resolution, pp. 1196-1197. 37 Id., Vol. 3, Omnibus Motion [For Reconsideration of the Honorable Court's Resolution Dated 6 October 2015; and to Re-Open Petitioner's Presentation of Evidence and Recall its Witness [Mr. Sacpa] and toRe- Mark Exhibits], pp. 1198-1265, with annexes. 38 Id., Resolution, pp. 1272-1275.

39 I d., Supplemental Judicial Affidavit [Of Commissioned Independent Certified Public Accountant, Glenn Ian D. Villanueva pp. 1289-1296, with annexes.

On June 20, 2016, the Court promulgated a Resolution41 granting petitioner's Manifestation and Motion, and admitting Exhibits "P-3-A" to "P-3-C," "P-4," "P-10-A" to "P-10-C," "P-12-A" to "P-12-C," "P-13-A" to "P-13-B," "P-14-A" to "P-14-B," "P-15-A" to "P-15-D," "P-16-A" to "P-16-AH," "P-17-A" to "P-17-AG," "P-18-A" to "P-18-AE," "P-19-A" to "P-19-AE," "P-20-A" to "P-20-AJ," "P-21- A" to "P-21-D," "P-22-A" to "P-22-L," "P-23-A" to "P-23-Y," "P-24- A" to "P-24-CF," "P-25-A" to "P-25-DW," "P-26-A" to "P-26-AQ," "P- 27-A" to "P-27-B," "P-28-A," "P-29-A" to "P-29-N," "P-30-A" to "P- 30-C," "P-32," "P-33," "P-34-A" to "P-34-H," "P-35-A," "P-36-A" to "P-36-E," "P-37-A" to "P-37-BO," and "P-38-A." Petitioner then filed a Supplemental Offer of Evidence42 offering Exhibits "P-23-AA" to "P-23-DY" on July 4, 2016; which were all ultimately admitted43 on November 9, 2016. During the hearing on November 14, 2016, respondent manifested that no report of investigation was submitted by the Revenue Officers, hence, he has no evidence to present.44 The Court then granted the parties thirty (30) days or until December 14, 2016 to submit their respective memoranda, which was confirmed by the Court in its Order4s of even date.

With petitioner's

Memorandum46

and respondent's Manifestation47 that he is adopting his Answer to the Petition for Review as his memorandum, both filed on December 14, 2016, the Court resolved48 to submit the case for decision on December 20, 2016; hence this Decision.

The Issue49

WHETHER PETITIONER IS ENTITLED TO A TAX

CREDIT

OF

INPUT

VAT

AMOUNTING

TO

PHP15,708,795.39 REPRESENTING INPUT VAT IN THE SECOND HALF OF 2012.

41 Records, Vol. 3, Resolution, pp. 1330-1332. 42 I d., Supplemental Offer of Evidence, pp. 1334-1336. 43 Id., Resolution, p. 1346.

44 I d., Minutes of Hearing on November 14, 2016, p. 1348. 45 Id., Order, p. 1349.

46 Id., Memorandum, pp. 1354-1382.

47 Records, Vol. 3, Manifestation, pp. 1350-1353. 48 Id., Resolution, p. 1384.

49 Id., Vol. 2, PTO, Issue, p. 1042.

(

Petitioner's Argumentsso

Petitioner alleges that it is entitled to a tax refund or TCC of its input VAT paid for the second half of 2012, as it satisfied all the legal requirements provided under Section 112(A) of the 1997 National Internal Revenue Code, as amended ("1997 NIRC"), as well as the requisites laid down in San Roque Power Corporation v. CIR. Petitioner avers that it is a VAT -registered taxpayer; that it is engaged in zero- rated or effectively zero-rated sales; that the input taxes are due or paid; that the input taxes are not transitional input taxes; that the input taxes has not been applied against output taxes during and in the succeeding quarters; that the input taxes are attributable to zero- rated or effectively zero-rated sales; that for zero-rated sales under Sections 106(A)(2)(1) and (2), 106(B) and 108(B)(l) and (2) of the 1997 NIRC, the acceptable foreign currency exchange proceeds have been duly accounted for in accordance with Bangko Sentral ng Pilipinas ("BSP")' s rules and regulations; and that the claim for refund was timely filed within two (2) years after the close of the taxable quarter when such sales were made.

Respondent's Counter-Arguments51

On the other hand, respondent counters that the power of taxation is an inherent attribute of sovereignty; that the government chiefly relies on taxation to obtain the means to carry on its operations; that taxes are the lifeblood of the nation, hence the law frowns upon exemptions from taxation; that statues granting tax exemptions are to be construed strictissimi juris against the taxpayer and liberally in favor of the taxing authority; and that tax refunds partake the nature of tax exemptions, which are construed strictly against the taxpayer.

Respondent avers that 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; that taxes paid and collected are presumed to have been made in accordance with the laws and regulations; that petitioner's alleged claim for tax credit is subject to administrative routinary investigation or examination by the BIR; that petitioner must 5o Records, Vol. 3, Memorandum, Discussion, pp. 1360-1381. 51 Id., Vol. 1, Answer, Special and Affirmative Defenses, pp. 60-62. ( establish, by sufficient and competent evidence, that it is entitled to a tax refund or issuance of a TCC; that it is incumbent upon the taxpayer to prove its compliance with the registration requirements of a VAT taxpayer in compliance with Revenue Regulations ("RR") No. 7-2012 in relation to Section 236(A), (B), (C) and (D) of the 1997 NIRC; that petitioner should also prove compliance with the invoicing and accounting requirements for VAT-registered persons, pursuant to Sections 112, 113, and 114 of the 1997 NIRC, to validly claim for a tax refund or issuance of a TCC; that is incumbent upon petitioner to establish the factual and legal bases of its claim for tax credit; and that petitioner failed to present clear and convincing evidence to merit a tax credit.

The Ruling of the Court

The Court has jurisdiction over the instant case.

The Court must first determine whether it has jurisdiction over the case at bar.

Anent the timeliness of filing the administrative and judicial claims for refund, Section 112(A) of the 1997 NIRC, provides as follows:52 SEC. 112. Refunds or Tax Credits of Input Tax.- (A) Zero-Rated or Effectively Zero-Rated Sales.- any VAT- registered person, whose sales are zero-rated or effectively zero-rated may, within two (2) years after the close of the taxable quarter when the sales were made, apply for the issuance of a tax credit certificate or refund of creditable input tax due or paid attributable to such sales, except transitional input tax, to the extent that such input tax has not been applied against output tax: Provided, however, That in the case of zero-rated sales under Section 106(A)(2)(a)(1), (2) and (B) and Section 108 (B)(1) and (2), the acceptable foreign currency exchange proceeds thereof had been duly accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP): Provided, further, That where the taxpayer is engaged in zero-rated or effectively zero-rated sale 52 Underscoring ours.

I

and also in taxable or exempt sale of goods of properties or services, and the amount of creditable input tax due or paid cannot be directly and entirely attributed to any one of the transactions, it shall be allocated proportionately on the basis of the volume of sales.

XXX

XXX

XXX

(C) Period within which Refund or Tax Credit of Input Taxes shall be Made.- In proper cases, the Commissioner shall grant a refund or issue the tax credit certificate for creditable input taxes within one hundred twenty (120) days from the date of submission of complete documents in support of the application filed in accordance with Subsections (A) and (B) hereof.

In case of full or partial denial of the claim for tax refund or tax credit, or the failure on the part of the Commissioner to act on the application within the period prescribed above, the taxpayer affected may, within thirty (30) days from the receipt of the decision denying the claim or after the expiration of the one hundred twenty day-period, appeal the decision or the unacted claim with the Court of Tax Appeals.

XXX

XXX

xxx53 Corollary, Section 4.112-1(d) of RR No. 16-200554 states the following:

Sec. 4.112-1. Claims for Refund/Tax Credit Certificate of Input Tax.

XXX

XXX

XXX

(d)

Period

within which refund or tax credit certificate/refund of input taxes shall be made In proper cases, the Commissioner of Internal Revenue shall grant a tax credit certificate/ refund for creditable input taxes within one hundred twenty (120) days from the date of submission of complete documents in support of the application filed in accordance with subparagraph (a) above. 53 Underscoring ours.

54 Consolidated Value-Added Tax Regulations of 2005, effective November 1, 2005.

In case of full or partial denial of the claim for tax credit certificate/refund as decided by the Commissioner of Internal Revenue, the taxpayer may appeal to the Court of Tax Appeals (CT A) within thirty (30) days from the receipt of said denial, otherwise the decision shall become final. However, if no action on the claim for tax credit certificate/refund has been taken by the Commissioner of Internal Revenue after the one hundred twenty (120) day period from the date of submission of the application with complete documents, the taxpayer may appeal to the CT A within 30 days from the lapse of the 120-day period. 55 Based on Section 112(A) of the 1997 NIRC, petitioner has two (2) years from the close of the taxable quarter when the sales were made to file its administrative claim. Further, Section 112(C) of the 1997 NIRC, in relation to RR No. 16-2005, states that if no action was taken by the CIR after the one hundred and twenty (120) day period from the date of submission of the application with complete documents, the taxpayer may appeal to the CTA within thirty (30) days therefrom.

The taxable quarters involved in the case at bar are July 1 to September 30, 2012, and October 1 to December 31, 2012, with the ends of the periods serving as the dates when the respective quarters close. Therefore, the administrative c;laim is due two (2) years from September 30, 2012 and December 31, 2012, or September 30, 2014 and December 31, 2014, respectively. Records disclose that petitioner timely filed its Application for Tax Credits/Refunds on June 20, 2014, together with the documents necessary to support its claim, for the third and fourth quarters of 2012.

Thereafter, petitioner had one hundred and twenty (120) days or until October 18, 2014 to await the CIR's decision. To elaborate as to the running of the periods, in the recent case of Silicon Philippines, Inc. (Formerly Intel Philippines Manufacturing, Inc.) v. Commissioner of Internal Revenues6, the Supreme Court ruled that: Upon the filing of an administrative claim, respondent is given a period of 120 days within which to (1) grant a refund or issue the tax credit certificate for creditable input taxes; or (2) make a full or partial denial of the claim for a tax 55 Underscoring ours.

56 G.R. No. 182737, March 2, 2016.

( refund or tax credit. Failure on the part of respondent to act on the application within the 120-day period shall be deemed a denial.

Note that the 120-day period begins to run from the date of submission of complete documents supporting the administrative claim. If there is no evidence showing that the taxpayer was required to submit - or actually submitted - additional documents after the filing of the administrative claim, it is presumed that the complete · documents accompanied the claim when it was filed. 57 In Rohm Apollo Semiconductor Philippines v. Commissioner of Internal Revenue58, the Supreme Court reminded taxpayers that when the one hundred and twenty (120)-day period lapses and there is inaction on the part of the CIR, they must no longer await for a decision thereafter. The CIR's inaction is the decision itself. It is already a denial of the refund claim. Thus, the taxpayer must file an appeal within thirty (30) days from the lapse of the one hundred and twenty (120)-day waiting period, this period is mandatory and jurisdictional.

As enunciated by the Supreme Court in Commissioner of Internal Revenue v. San Roque Power Corporation, et al.s9, strict compliance with the mandatory 120+30-day period is necessary for a claim for tax refund or credit.

Applying the foregoing to the instant case, the one hundred and twenty (120)-day period began to run from June 20, 2014, the date when petitioner filed its administrative claim. Thus, respondent had until October 18, 2014 within which to decide the administrative claim.

However, the CIR did nothing after petitioner filed its administrative claim. Consequently, petitioner had thirty (30) days from October 18, 2014 or until November 17, 2014 to file its judicial claim with the CTA. Therefore, on November 17, 2014, petitioner timely filed the instant Petition for Review, for reference: 57 Underscoring ours.

58 G.R. No. 168950, January 14, 2015, 745 SCRA 669. 59 G.R. Nos. 187485,196113, and 197156, October 8, 2013,690 SCRA 336. r

ADMIN DUE DATE

QUARTER

(2 YRS. FROM CLOSE

OFQTR)

Close of 3rd Qtr.:

September 30, 2012 September 30, 2014 Close of 41h Qtr.:

December 31, 2012 December 31,2014

ADMIN

END OF120

+ 30 DAYS FROM

JUDICIAL CLAIM

THE EXPIRATION

CLAIM FILED

DAYS

OF120DAYS

FILED

June 20, 2014 October 18,2014 November 17, 2014 November17,2014 June 20, 2014 October 18,2014 November17,2014 November17,2014 Having found that both administrative and judicial claims for refund were filed on time, the Court has jurisdiction over the case at bar. The Court shall now proceed to determine whether petitioner is entitled to the issuance of a TCC.

Petitioner is entitled to the claim for issuance of a TCC, albeit, at a reduced amount.

Petitioner anchors its claim on Section 112(A) of the 1997 NIRC. Pursuant to the said provision and as laid down by the Supreme Court in a number of cases6o, a taxpayer may claim a refund or the issuance of a TCC for input taxes paid on purchases of goods and services attributable to zero-rated sales upon compliance with the following requisites:

1.

that the taxpayer must be VAT-registered;

2.

that the claim for refund must be filed within the two (2)- year prescriptive period;

3.

that there must be zero-rated or effectively zero-rated sales;

4.

that input taxes were incurred or paid;

6°Commissioner of Internal Revenue v. Toledo Pawer Company, G.R. Nos. 195175 & 199645, August 10, 2015, 765 SCRA 511; Luzon Hydro Corporation v. Commissioner of Internal Revenue, G.R. No. 188260, November 13, 2013, 709 SCRA 462; Southern Philippines Pawer Corporation v. Commissioner of Internal Revenue, G.R. No. 179632, October 19, 2011, 659 SCRA 658; Silicon Philippines, Inc. (Formerly Intel Philippines Manufacturing, Inc.) v. Commissioner of Internal Revenue, G.R. No. 172378, January 17, 2011, 639 SCRA 521; AT&T Communications Services Philippines, Inc. v. Commissioner of Internal Revenue, G.R. No. 182364, August 3, 2010, 626 SCRA 567; San Roque Power Corporation v. Commissioner of Internal Revenue, G.R. No. 180345, November 25, 2009, 605 SCRA 536; Intel Technology Philippines, Inc. v. Commissioner of Internal Revenue, G.R. No. 166732, April27, 2007, 522 SCRA657.

5.

that such input taxes are attributable to zero-rated or effectively zero-rated sales; and 6.

that the input taxes were not applied against any output VAT liability.

Petitioner complied with the first requisite by presenting its Certificate of Registration61 issued by the BIR, with Taxpayer's Identification No. 000-160-247-000, indicating that it is subject to VAT.

As discussed above, petitioner was able to prove compliance with the second requisite.

Anent the third requisite, petitioner claims that its entire gold bullion and copper concentrate products are exported and sold directly to foreign commodities traders abroad. For this purpose, petitioner was certified by the BOI as an entity engaged in export sales.62 By virtue thereof, petitioner maintains that its export sales are subject to VAT at zero (0%) percent, pursuant to Section 106(A)(2)(a)(1)63 of the 1997 NIRC.

Relative thereto, Section 113(A)(1), (B)(l) and (2)(c) of the 1997 NIRC, as implemented by Sections 4.113- 1(A)(1), B(l) and (2)(c) of RR No. 16-2005, as amended, requires that a VAT taxpayer shall, for every sale, issue a VAT invoice which must contain the following information:

1997 NIRC

61 Box 1 ofl, Exhibit "P-4-A," BIR Certificate of Registration. 62 Id., Exhibits "P-3-A," "P-3-B," and "P-3-C," BOI Cover Letter and Certification. 63 SEC. 106. Value-added Tax on Sale of Goods or Properties.-

(A)

Rate and Base of Tax.-

XXX

XXX

XXX

(2) The following sales by VAT -registered persons shall be subject to zero percent (0%) rate:

(a) Export Sales.- The term 'export sales' means: (l)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);" t SEC. 113. Invoicing and Accounting Requirements for VAT- Registered Persons. - (A) Invoicing Requirements. - A VAT -registered person shall issue:

(1) A VAT invoice for every sale, barter or exchange of goods or properties; and

XXX

XXX

XXX

(B) Information Contained in the VAT Invoice or VAT Official Receipt. - The following information shall be indicated in the VAT invoice or VAT official receipt:

(1) A statement that the seller is a VAT- registered person, followed by his Taxpayer's Identification Number (TIN);

(2) The total amount which the purchaser pays or is obligated to pay to the seller with the indication that such amount includes the value-added tax: Provided, That:

XXX

XXX

XXX

(c) If the sale is subject to zero percent (0%) value-added tax, the term 'zero-rated sale' shall be written or printed prominently on the invoice or receipt;

RR No. 16-2005 SEC. 4.113-1. Invoicing Requirements.- (A) A VAT -registered person shall issue:- (1) A VAT invoice for every sale, barter or exchange of goods or properties; and

XXX

XXX

XXX

Only VAT -registered persons are required to print their TIN followed by the word 'VAT' in their invoice or official receipts. Said documents shall be considered as a 'VAT Invoice' or VAT official receipt. All purchases covered by invoices/receipts other than VAT Invoice/VAT Official Receipt shall not give rise to any input tax.

VAT invoice/ official receipt shall be prepared at least in duplicate, the original to be given to the buyer and the duplicate to be retained by the seller as part of his accounting records.

(B) Information contained in VAT invoice or VAT official receipt. - The following information shall be indicated in VAT invoice or VAT official receipt:

(1) A statement that the seller is a VAT -registered person, followed by his TIN;

(2) The total amount which the purchaser pays or is obligated to pay to the seller with the indication that such amount includes the VAT; Provided, That:

XXX

XXX

XXX

(c) If the sale is subject to zero percent (0%) VAT, the term 'zero-rated sale' shall be written or printed prominently on the invoice or receipt;

In addition, the invoice or receipt must be duly registered with the BIR, as prescribed under Sections 237 and 238 of the 1997 NIRC, to wit:

SEC. 237. Issuance of Receipts or Sales or Commercial Invoices. - All persons subject to an internal revenue tax shall, for each sale and transfer of merchandise or for services rendered valued at Twenty-five pesos (P25.00) or more, issue duly registered receipts or sales or commercial invoices, prepared at least in duplicate, showing the date of transaction, quantity, unit cost and description of merchandise or nature of service. xxx SEC. 238. Printing of Receipts or Sales or Commercial Invoices. - 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.

No authority to print receipts or sales or commercial invoices shall be granted unless the receipts or invoices to be printed are serially numbered and shall show, among other things, the name, business style, Taxpayer Identification Number (TIN) and business address of the person or entity to use the same, and such other information that may be required by rules and regulations to be promulgated by the

Secretary

of Finance, upon recommendation of the Commissioner.

Pursuant to afore-quoted provisions, any VAT -registered person claiming VAT zero-rated direct export sales may present the following documents to prove its claim, to wit: 1.

Sales Invoice, as proof of sale of goods;

2.

Export Declaration and Bill of Lading or Airway Bill, as proof of actual shipment of goods from the Philippines to a foreign country; and 3.

Bank Credit Advice, Certificate of Bank Remittance or any other document proving payment for the goods in acceptable foreign currency or its equivalent in goods and services. In its Quarterly VAT Returns for the third64 and fourth65 quarters of 2012, petitioner declared total zero-rated sales of Php1,084,234,088.00, broken down as follows:

ZERO-RATED

TAXABLE YEAR 2012

SALES

3rd Quarter

Php

587,219,661.55 4th Quarter 497,014,426.45

TOTAL

PHP 1,084,234,088.00 To substantiate the foregoing, petitioner presented the Summary List of Sales66, Schedule of Exportations67, Zero-Rated

Provisional Invoices®’, Zero-Rated Final Invoices®, Export Declarations”, Air Waybills7!, UCPB Credit Memos”, and UCPB Certificate of Inward Remittances.”3 As ascertained by the ICPA, out of the Php1,084,234,088.00 zero-rated sales reported by petitioner for the third and the fourth quarters of 2012, only the amount of Php951,219,589.89% qualify as properly supported zero-rated export sales of goods. The valid zero- rated sales can be broken down, as follows:

3RD QUARTER

EXHIBIT INVOICE | INVOICE AMOUNT | FOREX AMOUNT BOX

REFERENCE | NUMBER DATE USD RATE PHP

“P-17-A” 8/1/2012 758,523.06 31,770,738.37 | 1 of 1 “P-17-B” 8/1/2012 666,371.06 27,910,951.85 | 1 of 1 “P-17-C” 8/1/2012 1,043,901.99 43,723,834.85 | lof1 “P-17-F” 8/21/2012 936,729.29 39,401,644.13 | lof1 “P-17-H” 9/3/2012 581,121.21 24,443,701.46 | 1 of 1 “P-17-1” 9/3/2012 569,841.40 23,969,238.81 | 1 of 1 “P-17-J" 9/24/2012 885,864.87 37,262,134.03 | 1 of 1 “P-17-K” 9/24/2012 965,136.12 40,596,520.62 | 1 of 1 “P-17-L” 9/24/2012 610,231.15 25,668,152.86 | 1 of 1 “P-17-M” 9/24/2012 692,290.02 28,887,185.66 | 1 of 1 “P-17-N” 9/24/2012 553,070.75 23,077,983.19 | 1 of 1 Total for 3rd Quarter Php 346,712,085.82

4TH QUARTER

“P-17-O” 5144 10/12/2012 663,909.48 41.727 27,702,950.87 1of1 “P-17-P” 5145 10/12/2012 651,922.33 41.727 27,202,763.06 1of1 “P-17-Q” 5146 10/12/2012 807,544.55 41.727 33,696,411.44 1lof1 “P-17-R” 5147 10/12/2012 = 1,500,356.29 41.727 62,605,366.91 1lof1 “P-17-S” 5148 10/29/2012 694,693.93 41.428 28,779,780.13 1of1 “P-17-T” 5149 10/29/2012 578,974.58 41.428 23,985,758.90 1lof1l “P-17-U” 5150 10/29/2012 674,063.78 41.428 27,925,114.28 1lof1 “P-17-V” 5169 11/5/2012 759,425.03 41.428 31,461,460.14 lofl “P-17-W” 5170 11/5/2012 677,225.15 41.428 28,056,083.51 1o0f1 “P-17-X” 5171 11/5/2015 1,130,046.71 41.428 46,815,575.10 lofl “P-17-Y" 5172 11/27/2012 864,311.96 41.105 35,527,543.12 lofl “P-17-Z" 5173 11/27/2012 845,309.12 41.105 34,746,431.38 lof1 “P-17-AA” 5174 12/27/2012 = 1,147,207.80 41.105 47,155,976.62 lofl “P-17-AB” 5175 12/27/2012 926,110.06 41.105 38,067,754.02 lofl “P-17-AC” 5176 12/27/2012 693,245.78 41.105 28,495,867.79 1of1 “P-17-AD” 5177 12/27/2012 827,604.06 41.017 33,945,835.73 lofl “P-17-AE” 5178 12/31/2012 932,980.84 41.017 38,268,075.11 1lof1 “P-17-AG” 5182 12/31/2012 245,477 63 41.017 10,068,755.95 1lof1 6 Id., Exhibits “P-14-A” to “P-14-B.”

67 Id., Exhibits “P-15-A” to “P-15-B.”

68 Box 1 of 1, Exhibits “P-16-A” to “P-16-AH.”

69 Id., Exhibits “P-17-A” to “P-17-AG.”

7 Id., Exhibits “P-18-A” to “P-18-AE.”

71 Id., Exhibits “P-19-A” to “P-19-AE.”

72 Id., Exhibits “P-20-A” to “P-20-A].”

73 Id., Exhibits “P-21-A” to “P-21-D.”

Records, Vol. 2, Exhibit “P-33,” ICPA Report, Annex 7, p. 1086.

I GRAND TOTAL

PHP951,219,589.89 The remaining Php133,014,498.11 shall be denied VAT zero- rating for being supported with incomplete documents and/ or for being company adjustments with no supporting documents, broken down, viz.:

PARTICULARS

REFERENCE

AMOUNT

Zero-rated sales supported by

Exhibit "P-33"

final sales invoices, bank credit memo,

Annex 8 of ICP A Report

export declaration but not supported Records, Vol. 2, p. 1065 by air waybill Php 80,408,769.38 Zero-rated sales supported by

Exhibit "P-33"

final sales invoices, bank credit memo,

Annex 8 of ICP A Report

air waybill but not supported Records, Vol. 2, p. 1065 by export declarations 51,531,124.98 Company adjustments on zero-rated

Exhibit "P-33"

sales not supported by any document

Annex 9 of ICP A Report

Records, Vol. 2, p. 1065 1,074,603.75

TOTAL

PHP 133,014,498.11 Anent the fourth and fifth requirements, based on the Quarterly VAT Returns for the third and fourth quarters of 2012, the unutilized input VAT on purchases or importation of goods claimed for tax credit is Php15,708,795.39, computed as follows:

PARTICULARS

3RDQUARTER

4TH QUARTER

TOTAL

(Exhibit "P-12")

(Exhibit "P-13")

Input tax deferred on Cap. Goods exceeding 1M from previous quarter

Php

225,043.60

Php

314,418.39

Php

539,461.99 Input tax on cap. Goods exceeding 1M from this quarter 120,132.00 945,591.00 1,065,723.00

Total

Php

345,175.60

Php

1,260,009.39

Php

1,605,184.99

Less:

Input tax Cap. Goods exceeding 1M deferred for the succeeding period

Php

96,105.60

Php

756,472.80

Php

852,578.40 Amortization of input tax on cap. goods 249,070 503,536.59 752,606.59 exceeding 1M Importation of goods other than cap. goods 10,778,245.00 11,189,885.00 21,968,130.00

Total Input Tax

Php

11,027,315.00

Php

11,693,421.59

Php

22,720,736.59

Less: Output Tax

Php

1,205,861.68

Php

5,806,079.52

Php

7,011,941.20

TOTAL UNUTILIZED INPUT TAX PER CLAIM

PHP

9,821,453.32

PHP

5,887,342.07

PHP

15,708,795.39 To support its claim, petitioner presented as evidence IEIRDs75, SSDTs76, SADs77, Bank Certifications7s, VAT Sales Invoices/Official Receipts79, Schedule of Importation of Capital Goods exceeding 1

Million80, Schedule of Input VAT Amortizations1, and Subsidiary Ledger of Mine Machineries and Equipment82, which were examined by the ICPA. The ICPA findings83 can be summarized in the following manner:

REFERENCE

NATURE

Annex 12-

Input VAT on importations duly supported by

A(3Q)

original copy of Import Entry and Internal Revenue Declarations (IEIRDs) with machine validation and/ or BOC receipt dated within the period July to September 2012, or in case of importations under electronic to mobile customs system (e2m customs), supported by single administrative documents (SADs), statement of settlement of duties and taxes (SSDTs) and certification from authorized agent bank (AAB)

Annex 12-

Input VAT on importations duly supported by

A(4Q)

original copy of Import Entry and Internal Revenue Declarations (IEIRDs) with machine validation and/ or BOC receipt dated within the period October to December 2012, or in case of importations under electronic to mobile customs system (e2m customs), supported by single administrative documents (SADs), statement of settlement of duties and taxes (SSDTs) and certification from authorized agent bank (AAB)

Annex 12-

Input VAT on importations under electronic to

B(4Q)

mobile customs system (e2m Customs), supported by single administrative documents (SADs), statement of settlement of duties and taxes (SSDTs) and certification from authorized agent bank (AAB) not dated within the period July to December 2012 but within the taxable year 2012

Annex 15

Amortization of input VAT on importation of capital goods exceeding 1 million under electronic to mobile customs system (e2m Customs), supported by single administrative documents (SADs), statement of settlement and duties (SSDTs) and certification from authorized agent bank (AAB)

TOTAL

Exceptions:

Annex 12-C

Input VAT

on importations supported by

(3Q)

photocopied informal import declaration and entry and BOC ORs dated within the period July

to September 2012

Annex 12-C

Input VAT

on importations supported by

(4Q)

photocopied informal import declaration and entry and BOC ORs dated within the period

October to December 2012

Annex 12-D

Input on importations under electronic to customs

(4Q)

mobile system (e2m Customs) supported only by single administrative document (SAD) not dated within the period July to December 2012 but 8o Id., Exhibits "P-27-A'' to "P-27-B."

81 Records, Exhibit "P-28-A."

82 Box 1 ofl, Exhibits "P-29-A" to "P-29-N." 83 Records, Vol. 2, Exhibit "P-33," ICPA Report, pp. 1068-1069.

AMOUNT

Php 10,777,434.00 11,088,512.00 8,193.00 13,161.85 Php I 21,887,300.85

I

Php

811.00 21,333.00 23,226.00 (

Annex 12-E

(4Q)

Annex 15

Annex 16

Total

Exceptions

TOTAL

within the taxable year 2012

Input VAT

on importations supported by photocopied informal import declaration and entry and BOC ORs not dated within the period July to December 2012 but within the taxable year 2012 48,621.00 Amortization of input VAT overclaimed on supported importation of capital goods with an aggregate amount exceeding 1 million 108,421.95 Amortization of input VAT on importation of capital goods not supported by any documents 631,022.79

Php

833,435.74 PHP 22,720,736.59 From the above findings, the Court notes that aside from the input VAT disallowed by the ICPA, in the amount of Php833,435.74, input VAT amounting to Php8,193.00 under Annex 12B(4Q) should also be disallowed for being an out of period claim. Therefore, out of petitioner's reported input VAT of Php22,720,736.59 for the third and fourth quarters of CY 2012, only the amount of Php21,879,107.85 represents petitioner's valid input VAT, computed as follows:

3RDQUARTER

4TH QUARTER

TOTAL

Total Input Tax

Php 11,027,315.00 Php 11,693,421.59 Php 22,720,736.59

Less: Exceptions

ICP A Exception

141,459.05 691,976.69 833,435.74

Additional Exception

- 8,193.00 8,193.00

Total Exceptions

Php

141,459.05 Php 700,169.69 Php 841,628.74

TOTAL VALID INPUT TAX

PHP 10,885,855.95 PHP 10,993,251.90 PHP 21,879,107.85 However, considering that petitioner declared taxable sales subject to both zero percent (0%) and twelve percent (12%) rates, and its input VAT cannot be directly or entirely attributed to any of the transactions, the Court shall allocate the valid input VAT proportionately on the basis of volume of its sales. Thus:

3RDQUARTER

4TH QUARTER

Vatable Sales ( A )

Php

10,048,847.35

Php

48,383,996.00

Zero-rated Sales (B)

587,219,661.55 497,014,426.45

Total Sales ( C )

Php

597,268,508.90 Php 545,398,422.45

Allocation of Valid Input VAT:

Valid Input VAT (D)

Php

10,885,855.95

Php

10,993,251.90 Vatable Sales [(A/C) x D] 183,150.97 975,245.68 Zero-rated Sales [(B/C) x D) 10,702,704.98 10,018,006.22

TOTAL

PHP

10,885,855.95

PHP

10,993,251.90

Since petitioner's input VAT allocated to vatable sales in the respective amounts of Php183,150.97 and Php975,245.68 for the third and fourth quarters of CY 2012 is not enough to cover its output VAT liability in the amounts of Php1,205,861.6684 and Php5,806,076.5285 for the third and fourth quarters of CY 2012, respectively; the valid input VAT attributable to zero-rated sales shall be utilized against the remaining output VAT of Php1,022,710.69 and Php4,830,830.34 for the third and fourth quarters of CY 2012, respectively, to wit:

3RDQUARTER

4TH QUARTER

Output VAT

Php

1,205,861.66

Php

5,806,076.52 Less: Valid input VAT Allocated to Vatable sales 183,150.97 975,245.68 Remaining output VAT

Php

1,022,710.69

Php

4,830,830.84 Less: Valid input VAT Allocated to zero-rated sales 10,702,704.98 10,018,006.22

EXCESS INPUT VAT

PHP

9,679,994.29

PHP

5,187,175.38 Based on the foregoing, petitioner has excess input VAT of Php9,679,994.29 and Php5,187,175.38 for the third and fourth quarters, respectively, which can be attributed to the entire amount of Php1,084,234,088.0086 zero-rated sales declared by petitioner in its Quarterly VAT Return for the third and fourth quarters of the same year. However, only the input VAT of Php3,095,430.27 and Php2,892,075.13 are attributable to the valid zero-rated sales of Php346,712,085.82 and Php604,507,504.07 for the third and fourth quarters of CY 2012, respectively, as computed below:

3RDQUARTER

4TH QUARTER

Excess input VAT Attributable to Zero-rated Sales Php 9,679,994.29 Php 5,187,175.38

Multiplied by:

Valid Zero-Rated Sales

346,712,085.82 604,507,504.07

Total Zero-Rated Sales

1,084,234,088.00 1,084,234,088.00

Percentage of Valid Zero-Rated Sales

31.97760% 55.7543%

REFUNDABLE EXCESS INPUT VAT

PHP 3,095,430.27 PHP 2,892,075.13 As previously discussed, petitioner's excess input VAT is more than enough to apply it against its output VAT liability for the third 84 Box 1 of1, Exhibit "P-12-A," line 15B.

85 I d., Exhibit "P-13-A," line 15B.

86 Php587,219,661.55 plus Php497,014,426.45.

I

Since petitioner's input VAT allocated to vatable sales in the respective amounts of Php183,150.97 and Php975,245.68 for the third and fourth quarters of CY 2012 is not enough to cover its output VAT liability in the amounts of Php1,205,861.6684 and Php5,806,076.5285 for the third and fourth quarters of CY 2012, respectively; the valid input VAT attributable to zero-rated sales shall be utilized against the remaining output VAT of Php1,022,710.69 and Php4,830,830.34 for the third and fourth quarters of CY 2012, respectively, to wit:

3RDQUARTER

4TH QUARTER

Output VAT

Php

1,205,861.66

Php

5,806,076.52 Less: Valid input VAT Allocated to Vatable sales 183,150.97 975,245.68 Remaining output VAT

Php

1,022,710.69

Php

4,830,830.84 Less: Valid input VAT Allocated to zero-rated sales 10,702,704.98 10,018,006.22

EXCESS INPUT VAT

PHP

9,679,994.29

PHP

5,187,175.38 Based on the foregoing, petitioner has excess input VAT of Php9,679,994.29 and Php5,187,175.38 for the third and fourth quarters, respectively, which can be attributed to the entire amount of Php1,084,234,088.0086 zero-rated s-ales declared by petitioner in its Quarterly VAT Return for the third and fourth quarters of the same year. However, only the input VAT of Php3,095,430.27 and Php2,892,075.13 are attributable to the valid zero-rated sales of Php346,712,085.82 and Php604,507,504.07 for the third and fourth quarters of CY 2012, respectively, as computed below:

3RDQUARTER

4TH QUARTER

Excess input VAT Attributable to Zero-rated Sales Php 9,679,994.29 Php 5,187,175.38

Multiplied by:

Valid Zero-Rated Sales

346,712,085.82 604,507,504.07

Total Zero-Rated Sales

1,084,234,088.00 1,084,234,088.00

Percentage of Valid Zero-Rated Sales

31.97760% 55.7543%

REFUNDABLE EXCESS INPUT VAT

PHP 3,095,430.27 PHP 2,892,075.13 As previously discussed, petitioner's excess input VAT is more than enough to apply it against its output VAT liability for the third 84 Box 1 of1, Exhibit "P-12-A," line 15B.

85 Id., Exhibit "P-13-A," line 15B.

86 Php587,219,661.55 plus Php497,014,426.45.

and fourth quarters of CY 2012 in the amounts of Php1,205,861.6687 and Php5,806,076.52,ss respectively.

Anent the sixth requisite, although the claimed input VAT was carried-over by petitioner in its Quarterly VAT Return for the first quarter of 2013 until the second quarter of 2014, the same remained unutilized since it was deducted in the second amended Quarterly VAT Return of 2012,89 as "VAT Refund/TCC claimed"9o from the total available input tax of Php51,897,873.00.91 Thus, the claimed input taxes for the third and fourth quarters of CY 2012 could not have been carried-over or utilized in the succeeding third quarter of 2014.

WHEREFORE, premises considered, the instant Petition for Review is hereby PARTIALLY GRANTED. Respondent is hereby ORDERED to ISSUE A TAX CREDIT CERTIFICATE in favor of petitioner in the reduced amount of FIVE MILLION NINE

HUNDRED EIGHTY SEVEN THOUSAND FIVE HUNDRED FIVE

AND 40/100 PESOS (PHP5,987,505.40) representing excess and unutilized input VAT for the third and fourth quarters of CY 2012.

WE CONCUR:

ABON-VICTORINO

87 Box 1 of1, Exhibit "P-12-A," line 15B.

88 Id., Exhibit "P-13-A," line 15B.

89 Box 1 of1, Exhibit "P-36-A, line 15B.

90 Id., line 230.

91 Id., line 22.

LOVE~ R. BAUTISTA

Associate Justice

.,j' .

C/Ar. ~ '---- MA. BELEN M. RINGPIS-LIBAN

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.

LOVEL~R. BAUTISTA

Associate Justice

Chairperson

CERTIFICATION

Pursuant to Section 13 of Article VIII 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.

OSARIO

Presiding Justice