SM Investments Corporation vs. Commissioner of Internal Revenue

AMENDED DECISION

CASTANEDA, JR., } .:

For resolution of the Court are the following:

1. Motion for Partial Reconsideration (Re: Decision Promulgated 4 March 2019) filed by respondent on March 18, 2019, 1 with petitioner's Comment/Opposition filed on April 5, 2019; 2 and

2. Omnibus Motion 1. For the Partial Reconsideration of t he Decision Dated 04 March 2019, and 2. For Leave of Court to Recall Witness filed by petitioner on March 20, 2019 through registered mail and received by this Court ~

on March 26, 20193, with respondent's Opposition filed on April 24, 2019.4 For easy reference, the dispositive portion of the assailed Decision promulgated on March 4, 2019 reads: "WHEREFORE, the instant Petition for Review is PARTIALLY GRANTED. Accordingly, let a tax refund or a tax credit certificate be issued in favor of petitioner in the total amount of P179,295,580.72, representing petitioner's excess and unutilized Creditable Withholding Tax for calendar year ended December 31, 2013.

Court

resolves to deny respondent's

Motion

for

Partial

Reconsideration and to partially grant petitioner's Motion for Partial Reconsideration.

DISCUSSION

SMIC's

Motion

for

Partial

Reconsideration

<p- 3 Docket, Vol. IV, pp. 1685-1704.

4 Docket, Vol. IV, pp. 1736-1742.

5 Docket, Vol. IV, p. 1635.

6 Docket, Vol. IV, pp. 1637-1638.

7 Docket, Vol. IV, pp. 1686 & 1696.

AMENDED DEGSION

SMIC contends that it was able to comply with all the essential basic conditions set forth under pertinent provisions of law and existing jurisprudential declarations and prove its entitlement to its claim for refund or, in the alternative, the issuance of a TCC for its excess and unutilized ONT for the calendar year ended 31 December 2013.8 In the assailed Decision, the Court considered SMIC's cwr for taxable year 2013 in the amount of P¹,156,578,400.97 as properly supported by BIR Form No. 2307/ but the total refundable ONT amounted only to P209,071,035.06, after the Court disallowed the following amounts:

a. The claimed ONT amounting to P943,656,142.68 was disallowed for failure to prove that the income payments pertaining thereto were not properly reported in SMIC's books. Hence, it may not be reported as revenue in its Income Tax Return {ITR).

b. The claimed cwr amounting to P17,567,246.73 was disallowed. The Court noted that the income to which said cwr relates to in the amount of P383,246,997.60 was not properly recorded in SMIC's books. Thus, it may not be reported as revenue in its ITR. Further, the Court observed that the P17,567,246.73 was not fully supported by original copies of BIR Form No. 2307, as found by the ICPA.

c. The claimed ONT in the amount of P239,208.99 was disallowed for being supported by photocopies of BIR Form No. 2307.10 SMIC's compliance with the requisites to prove its entitlement to its claim for refund SMIC avers that contrary to the observation of the Court, the income related to the disallowed cwr were duly reported as income;.-

in its 2013 ITR and recorded in its books. Further, it argues that it offered its explanation/reconciliation of its recording/entry in its books of accounts and ITR.11 SMIC notes that the !CPA provided a comparative table12 summarizing the total amount of income payments per CWT and taxable gross income per FS and per ITR, with corresponding explanation regarding the discrepancy in the amounts reflected in the report.

SMIC also asserts that the Court disregarded the categorical finding of the duly commissioned !CPA that the pertinent gross income upon which the claimed CWT relates to was reported as taxable income in its ITR. Further, petitioner avers that the Court overlooked the explanations offered by the !CPA and petitioner pertaining to the reporting of its income in its books and ITR.13 A second look at the !CPA report shows, among others, the following: 14 "12. We wish to note that the amount in the CWT Return are not broken down into specific transaction for it to be traced to the books. Moreover, the amount in the CWT are usually consolidated for the month or quarter, such that it is difficult to trace it to the books. Nevertheless, we have provided a comparative analysis where we mapped the CWT per customer against the income per FS/ITR per customer. This procedure reveals the amount of income per customer subjected to withholding tax.

13. The results of the above procedure is shown in Annex-!.

14. Our review of Petitioner's ITR, particularly, Schedule 9 thereof, audited financial statements, and our interview with Petitioner's personnel, the following summarizes the total amount of gross income per CWT reported as taxable gross income:

XXX

XXX

XXX 'f't.-

Below are the explanation for the foregoing items:

XXX

XXX

XXX

(b) The amount of rent income reported in the ITR is higher by Php20,747,184. Since the income per ITR is higher, it is reasonable to assume that all gross income covered by CWT were all reported as taxable income. However, it could be possible that some tenants did not withhold or failed to issue the related CWT in 2013. (Emphasis supplied)

XXX

XXX

XXX"

The Court scrutinized the findings contained in the said report to verify the categorical statement made by the ICPA. Considering that this case involves a claim for refund in a substantial amount, the Court cannot just rely on the "reasonable assumption" that the gross income covered by CWT was reported as taxable income. Likewise, the unclear explanation of the "possibility" that some tenants did not withhold or failed to issue the related CWT in 2013 is unacceptable. Further, mere statements of "timing differences" and "different rules for accounting and tax purposes"15 are inadequate to reconcile the discrepancy between the income payments per CWT certificates and petitioner's books/AFS/ITR. The same must be supported by documents and other appropriate evidence. SMIC contends that the source of the CWT subject of refund was primarily from the disposal of properties to SM Prime Holdings, Inc.16 In its Omnibus Motion, petitioner points out the following income payments which allegedly pertain to its disposal of properties. However, scrutiny of Annex I of the ICPA report17 reveals that the subject transactions were recorded in its books differently:

Reference

Per SAWT /BIR Form 2307

Per ITR/FS

Docket, Vol. II

p. 831

p. 836 o.844

Tax

Registered Name

Rate

Tax Base

Tax Withheld

Amount

Account

Disposal of

Hotel Specialist Davao Inc.

1% p 82 527 459.00 p 825 274.59 p 106 526 882.28 assets

Reimbursable

SM Prime Holdings Inc.

2% 1 018 663 024.50 20 373 260.49 37 960 266.12 charaes Rent income and SM Prime Holdinqs Inc.

5% 16141413 000.00 807 070 650.00 63 564 924.44

Miscellaneous

15 Q&A No. 27, Judicial Affidavit of Helen Grace D. DeJa Cruz, Docket, Vol. IV, pp. 1716-1718. 16 Omnibus Motion, Docket, Vol. IV, p. 1691. 17 Exhibit "P-2279", Docket, Vol. II, pp. 831-849. ~

Income-Parking

Terminal

TOTAL

P17,242,603,483.50 P828,269,185.08 P208,052,072.84 It is noted that from the foregoing, the largest amount of cwr in the amount of P807,070,650.00 with related income payment of P16,141,413,000.00 was recorded by SMIC as Rent Income and Miscellaneous Income-Parking Terminal per the ICPA report and not as disposal of assets. Moreover, in the income mapping made by the ICPA, of the P16,141,413,000.00 income payment, only P63,564,924.44 was recorded in SMIC's books. If the P63,564,924.44 does not pertain to the transfer of properties with SM Prime Holdings, Inc., it would be erroneous to place such amount adjacent to P16, 141,413,000.00.

Further, the ICPA report shows gain on sale of properties in the amount of P17,266,997,914.00. 18 However, Annex I of the same report shows a total of P17,355,065,752.31 detailed as follows: 19

Per SAWT /BIR Form 2307

Tax

Registered Name

Rate

Tax Base

Tax Withheld

Per ITR/FS

Difference

Consolidated Prime

1°/o p 49,SS4.00 p 49S.54 p 49,SS3.S7 p

Development

0.43 Desserts Plus Inc.

1°/o 2 874 120.00 28 741.20 43,283.87 2,830,836.13 Highlands Prime Inc.

1% 106 966.00 1 069.66 - 106,966.00

Hotel Specialist Davao

1% 82,S27,4S9.00 82S,274.S9 106,S26,882.28 (23,999,423.28) Inc.

Sanford Marketing Corp.

1% 10 072 441.00 100 724.41 13,141,931.11 (1.11) Sanford Marketing Corp.

1% 3 069 489.00 30 694.89

SM Arena Complex

Corp.

1% 4 22S 720.00 42,2S7.20

SM Arena Complex

Corp.

1°/o 2 213 287.00 22 132.87 8,SS4,363.3S (847,322.3S)

SM Arena Complex

Corp.

1°/o S11 674.00 s 116.74

SM Arena Complex

Corp.

1% 7S6 360.00 7 S63.60 SM Prime Holdinqs Inc.

1% 27 024.00 270.24 SM Prime Holdings Inc.

1% 23 673.00 236.73 17,226,749,738.13 (17,226,186,441.13) SM Prime Holdings Inc.

1% S12 600.00 s 126.00

TOTAL

P106,970,367.00 P1,069,703.67 P17,3SS,06S,7S².31 P(17,248,095,385.31) Thus, SMIC or the ICPA failed to reconcile the difference in gross income/income payment of P88,067,838.31 (P17,355,065,752.31 per ITR/FS in Annex I less P17,266,997,914.00 per ICPA findings). The ICPA did not account for the discrepancy ~

between his findings of income payments per CWT certificates of P17,266,997,914.00 and the total income payments per Annex I of P106,970,053.00. There was no explanation either as to the discrepancy of P17,248,095,385.31 between the gross income/income payment per SAWT/BIR Form No. 2307 and per SMIC's books/ITR.

To proceed, the corresponding gain on the alleged sale of properties was mentioned by the Court-commissioned ICPA in his report and was quoted by the Court in the assailed decision.20 An excerpt of the said report is reproduced as follows:

Type of Income I

PerFS

I

Per ITR

I

PerCWT

I Reference

XXX

XXX

XXX

Gain on sale of I properties 6,103,551 1 5,607,579,580 1 17,266,997,9141

XXX

XXX

XXX

Net Income

I P12 395 315 779 I P1 780 685 061 I P22 714 250 410 I -- ----------

XXX

XXX

XXX

(e) The gain on sale of properties pertain to the sale of various properties to one of Petitioner's affiliates. However, due to accounting rules, no gain was recognized in the Petitioner's books. Nevertheless, Petitioner was subjected to withholding tax based on the gross selling price of the transaction, the capital gain of which were reported as taxable income. Note that while the CWT shows the gross income, the amount reported in the ITR is only the gain on sale. This proves that the total amount of gross selling price Php17,266,997,914, which was subjected to withholding tax and covered by CWT, were fully reported as taxable income in the ITR with the return of taxable gain of Php5,607,579,580. Proof of gross selling price and supporting deeds of sale are presented as Exhibits P-2265 to P-2272. How the gain was computed is presented as Exhibit P- 2277."

(e) However, neither the ICPA nor SMIC explained the details of such transaction so that the Court can better appreciate the~

documentary evidence submitted. Further, SMIC or the !CPA failed to determine which CWT certificates support the said sale/disposal or exchange of properties.

The ICPA referred to several documents that prove the gross selling price related to the gain on sale of properties. Upon verification, the Deeds of Exchange entered into by petitioner and SM Prime Holdings, Inc. in relation to the transfer of properties amount to Pl6,141,413,000.00, to wit:

Exhibit

Date

Property I Development

Transfer Value

P-2265

5/31/2013

Raddison Cebu Hotel

1"2,375,000 000.00

P-2266

5/31/2013

Pica Sands Hotel

704 098 000.00

SMX Convention Center

1 608 000 000.00

P-2267

5/31/2013

MOAArena

3 369 320 000.00

MOA Arena Annex

1 673 000 000.00

Corporate Office

895 000 000.00

P-2268

5/31/2013 Taal Vista Hotel

2 014 324 000.00

P-2269

5/31/2013 Taqavtav

1 839 000 000.00

P-2270

5/31/2013 Casino & Waste Water

861,000,000.00

Treatment Plant

P-2271

5/31/2013

EDSA West

209 000 000.00

P-2272

5/31/2013

Park Inn Davao

593 671 000.00

TOTAL

P16.141.413.000.00 ------- When the transactions refer to disposal or transfer of properties, the Court evaluated the corresponding schedule of Disposal of Assets as reported by the ICPA (Annex I) to check whether they have been properly recorded in the books and consequently reported in the ITR. It is noteworthy that the total amount of P16,141,413,000.00 or any of the amounts in the foregoing list does not tally with any of the amounts in the !CPA's list of income payments received from disposal of assets as shown in Annex 1.21 Moreover, the computation of the gain on disposal of properties shows essentially the following: 22

COST

Other

Asset Description

Land & Land Impvt

Property

Project Century

XXX

743,628,157

Building & Building Impvt

Building Equipment, Furniture & Others 21 Exhibit "P-2279", Annex I, Docket, Vol. II, pp. 831 & 849. 22 Exhibit "P-2277".

11,385,957,228 758,341,216 •

Total

XXX

~

Construction in progress

Land & Land Impvt

Building & Building Impvt

Building Equipment, Furniture & Others Construction in progress

Land & Land Impvt

Building & Building Impvt

Building Equipment, Furniture & Others Construction in progress Net book value before impairment loss

XXX

XXX

XXX

Selling price of properties (DOAS) Less Net Book Value of properties Gain on sale of properties to SM Prime 12,887,926,601

ACCUMULATED DEPRECIATION

)()()( )()()(

XXX

41,294 2,097,562,794 250,385,542 2,347,989,630

NET BOOK VALUE

743,586,863 9,288,394,434 507,955,674 10,539,936,971 16,141,413,000 10,539,936,971 5,601,476,029 )()()( )()()(

XXX

Except for the Deeds of Exchange, SMIC did not mention the documents supporting this computation or even the exhibit pertaining to the CWT certificate substantiating the CWT that arose from this transaction.

In its attempt to prove that the foregoing gain of P5,601,476,029.00 was reported in its 2013 ITR, SMIC stated in its Memorandum that while the gross income on sale of properties per CWT amounted to P17,266,997,914.00, the ITR only showed gross income of P5,607,579,580.00. The discrepancy was not shown in the ITR because the amount presented as gross income in the ITR constitutes only the gain on sale pursuant to Section 32(A)(3) of the NIRC, as amended, while the amounts in the CWT certificates represent the gross selling price upon which the withholding tax was based. 23 The difference between the gross selling price and gain on sale mentioned above should equal to the net book value of the properties sold, as found in the computation of gain previously shown. However, the Court notes the following discrepancies:

Gross Income/

Reference

Selling Price

Gain on Sale

Net Book Value

!CPA I ITR fi'17 26~997,914.00 fi'5,607,579~80.00 fi'11,659,418,334.00 ,._

Exh. P-2277 I 16.141.413.000.00 Difference I P1.125.584.914.00 10,539.936.971.00 P1.119.481,363.00 Again, no explanation was offered by SMIC or the ICPA concerning these discrepancies.

It may be said that the Court disregarded the categorical statement of the ICPA that the pertinent gross income upon which the claimed cwr relates to was reported as taxable income in its ITR, simply because his actual findings do not support his statement. Section 3 of Rule 13 of the Revised Rules of the Court of Tax Appeals, as amended, provides:

"SEC. 3. Findings of independent CPA. - The submission by the independent CPA of pre-marked documentary exhibits shall be subject to verification and comparison with the original documents, the availability of which shall be primary responsibility of the party possessing such documents and, secondarily, by the independent CPA. The findings and conclusions of the independent CPA may be challenged by the parties and shall not be conclusive upon the Court, which may, in whole or in part, adopt such findings and conclusions subject to verification." (Emphasis supplied) In relation thereto, the Court did not overlook the explanations offered by the ICPA and petitioner pertaining to the reporting of the income payments in its books and ITR. The explanation, if any was given, was insufficient to convince the Court of SMIC's assertions. After submitting documentary evidence, albeit with inadequate explanation, the Court cannot be expected to sufficiently evaluate the related income payments of its claimed cwr vis-a-vis the proper recording in its books and subsequent declaration in its income tax. On this score, it is worth stressing that claims for refund are considered tax exemptions which are construed strictly against the taxpayer.

SMIC's

explanation of the reporting of its income in its books and ITR ~

AMENDED DEOSION

a. Disallowance of claimed

CWT

amounting to P943,656,142.68 An excerpt of the disallowed

CWT

P943,656,142.6824, which allegedly arose from properties, is reproduced below for easy reference: amounting to the disposal of

Registered

Tax

Name

Rate

Tax Base

CWT

Per FS/ITR

Difference

SM Prime

Holdings, Inc.

5% P16 215 214 349.2025 P810 760 717.46 P63 564 924.44 P16 151 649 424.76

SM Prime

Holdings, Inc.

2°/o 1 247 452 513.4026 24 949 050.27 37 960 266.12 1 209 492 247.28

Hotel

Specialist

Davao Inc.

1% 82 527 459.0027 825 274.59 106 526 882.28 (23 999 423.28)

Total

P17,S4S,194,321.60 P836,S35,042.32 P208,052,072.84 P17,337,142,248.76 The foregoing is further broken down as follows: Sched~lefCfrorh Anriex I of the ICPA Reilori:l28 ··•···.·• .· .•. ··• ' ·.·.

Tax

Exhibit

Registered Name

Rate

Tax Base

CWT

P-229 P-230 P-231

SM Prime Holdinqs Inc.

5% p 15 260 794.20 p 763 039.71

P-327 P-510 P-511

SM Prime Holdings Inc.

5°/o 16 900 167.60 845 008.38

P-620 P-790 P-791

SM Prime Holdings Inc.

5% 15 418 470.80 770 923.54

P-1080 P-1082 P-1083

SM Prime Holdinqs Inc.

5% 26 221 916.60 1 311 095.83

P-1081

SM Prime Holdings Inc.

5% 16141,413 000.00 807 070 650.00

Total

P16 215 214,349.20 P810 760 717.46 5cl1ecluJe 2 !from Annex I of the ICPA ReJM)rtl29- . ._'_ • · · ·. · ' ·• ·.

.

Tax

Exhibit

Registered Name

Rate

Tax Base

CWT

P-229 P-231

SM Prime Holdings Inc.

2% p 2 383 180.50 p 47 663.61

P-327 P-511

SM Prime Holdinqs Inc.

2% 44 139 904.50 882 798.09

P-620 P-790

SM Prime Holdings Inc.

2% 2 516 393.50 50 327.87

P-1080 P-1082 P-1083

SM Prime Holdinqs Inc.

2% 6 188 764.50 123 775.29

P-1083

SM Prime Holdinos Inc

2% 1 018.663 024.50 20 373 260.49 No BIR Form No. 2307 SM Prime Holdings Inc.

2% 173 561 245.90 3 471 224.92

Total

P1 247 452 513.40 p 24 949 050.27 ~h~illltii(;rl;)ffi/,\nllex 1 ~~the Ici>A rteportl3B· ·. •. . .

Exhibit

Registered Name

Tax

Rate

Tax Base

I

CWT

P-703

Hotel Specialist Davao, Inc.

24 Decision, Docket, Vol. IV, pp. 1624-1628. 25 Decision, Docket, Vol. IV, p. 1627. 26 Decision, Docket, Vol. IV, p. 1625. 27 Decision, Docket, Vol. IV, p. 1624. 28 Exhibit "P-2279", Docket, Vol. II, p. 844. 29 Exhibit "P-2279", Docket, Vol. II, p. 836. 30 Exhibit "P-2279", Docket, Vol. II, p. 831. 1% ,.

82,527,459.00 I ,.

825,274.59 I ~

] Total

I P

82,527,459.oo I P 825,274.59 I Meanwhile, SMIC moved for leave of court to recall its witnesses to explain in detail the discrepancy of its reported income in its books and ITR from the income payments/gross income per SAWT/BIR Form No. 2307.

In the interest of justice, the Court allowed the testimony of its Senior Assistant Vice President for Controllership, Ms. Helen Grace D. Dela Cruz, who explained in detail the particulars of the disposal of properties transactions. Thus: 31 "12. Q: In the 2013 ITR, petitioner reported a gain of Php5,607,579,580. How was the gain arrived at? A: The gain reported in the 2013 ITR can be broken down as follows:

Reference

Amount

Gain on exchange of Schedule 3, 2013 5,601,476,029 properties

ITR

Gain on sale of investments

Parent Company

6,103,551 in shares of stock of

Statements of

subsidiaries and associates,

Comprehensive

investment properties, Income, 2013 AFS property and equipment and others

Total

5,607,579,580 The gain amounting to Php5,601,476,029 relates to the transfer of properties under pooling of interest method and the transfer of construction-related costs of Conrad Hotel and the furniture and fixtures of Park Inn Davao. The gain of Php5,601,476,029 is computed as follows:

Transferee

Property

Selling Price

Net Book Value

Gain

SM Prime

Property

16,141,413,000 10,539,936,971 5,601,476,029 Holdings, swap Inc.

SM Prime

Conrad

1,018,606,310 1,018,606,310 - Holdings,

Hotel

Inc.

Hotel

Park Inn

106,978,604 106,978,604 -

Specialist

Davao

Davao

Total

17 266,997,914 11.665.521.885 5.601.476,029 31 Q&A No. 12, Judicial Affidavit of Helen Grace D. DelaCruz, Docket, Vol. IV, pp. 1711-1712. (i!:-

CfA Case No. 9322

The amount of Php17,266,997,914 above is the total gross selling price subjected to withholding tax as referred to by the !CPA in his report and quoted by the Court on pages 11-12 of the Decision." As per said statements, it has become clear that of the P5,607,579,580.00 gain on sale and exchange of properties, only PS,601,476,029.00 pertain to the transfer of properties/property swap with SM Prime Holdings, Inc. The remaining gain on sale of investments in shares of stock of subsidiaries and associates, investment properties, property and equipment and others in the amount of P6,103,551.00 is explained as follows: 32 "14.

Q: The gain of Php6,103,551 was reported both in the 2013 ITR and in the 2013 AFS. How was the gain of Php5,601,476,029 reported in the 2013 ITR and 2013 AFS?

A:

The transactions involve dealings in property. Under the Tax Code, in the case of gross income from dealings in property, only the gains on the exchange is reported as part of the gross income and not the gross selling price. Hence, only the gains were reported in the 2013 ITR. However, in the 2013 AFS, the accounting reporting standards, as I have mentioned, require a different treatment for transfer of assets under common control. As explained, no gain or loss is recognized under a pooling of interest method. Thus, no gain was not reported in the 2013 AFS. This is not [the] case with respect to the gain of Php6,103,551, which does not qualify under the pooling of interest method because the related transfer was not part of the corporate restructuring of SM Group. Finally, the assets acquired (cash and shares), and the consideration paid for such acquisition (properties and shares), were all reported in the 2013 AFS.~

erA case No. 9322

XXX

XXX

XXX

18. Q: Annex I of the ICPA Report stated that the total disposal of assets subjected to withholding tax and reported in the 2013 ITR/AFS amounted to Php17,355,065,752. Do these disposals include the transfer of properties under the pooling of interest as well as the transfer of Conrad Hotel and Park Inn Davao?

A:

These were reported as part of the properties transferred as noted by the ICPA in Annex I of his report.

The breakdown of the Php17,355,065,752 reported by the ICPA in Annex I of his report is as follows:

Transferee

Description

Amount

SM Prime Holdings Inc.

Property swap 16 141 413 000 SM Prime Holdings Inc.

Conrad Hotel

1 018 606 310

Hotel Specialist Davao

Park Inn Davao

106 978 604

Sub-total

17 266 997 914 SM Prime Holdinqs Inc.

MAAX and Coroorate office - FFE 64 808 119

Sanford Marketing Corooration

Imoort Letters of Credit Charqes

13 141 931

SM Arena Complex Corporation

Furniture and fixtures CFFE) 8 554 363 SM Prime Holdings Inc.

Bay Arena Project

964 645 SM Prime Holdings Inc.

MOA Arena excess materials 505 942

Consolidated Prime

MOA Arena excess materials 49,554

Development Group

Desserts Plus Inc.

Import Letters of Credit Charges

43 284

Sub-total

88,067,838

Grand Total

17,355,065,752 The gain resulting from the other disposal of Php88,067,838 forms part of the Php6,103,551 gain reported in the 2013 AFS and 2013 ITR. The breakdown is as follows:

Property

Selling Price

Net Book

Gain

Value

MAAX FFE and other Charqes 88 067 838 87 934 031 133 807

Land - Susana Heiqhts

8 136 000 3 658 940 4 477 060 Software costs - SAP Licenses 8 141 910 6 649 226

1492 684

Total

104,345,748 98,242,197

6103 551

An examination of petitioner's 2013 ITR confirms that it reported Other Taxable Income in the amount of P6,591,927,228.33 Schedule 3 breaks down the amount into the following, including the 'F-

gain on sale and exchange of properties in the amount of P5,607,579,580.00: 34 Interest income not subject to final tax p 251 158 856.00 Realized foreign exchange gain 474 126,816.00

Others:

Other income p 43 243 574.00 Gain on sale & exchange of properties 5 607 579,580.00 Gain on sale & maturity of AFS 215,818,402.00 5,866,641,556.00

Total Other Taxable Income

P6,591,927,228.00 As previously discussed, the total selling price of P16,141,413,000.00 is supported by Deeds of Exchange.35 The corresponding CWT in the amount of P807,070,650.00 was found to be properly supported by BIR Form No. 2307. 36 Although SMIC recognized a gain of P5,601,476,029.00 on the transfer of properties to SM Prime Holdings, Inc. for tax purposes, it recorded no gain or loss in its books. Ms. Dela Cruz, explained: 37 "5.

Q:

Why was there no gain or loss if you transferred assets in exchange for shares?

A: Since

the corporate restructuring involved companies under the common control of the Sy Family, and considering that the transactions involved the transfer of assets (i.e., properties and shares) in exchange for shares, petitioner adopted the pooling of interest method to record the transaction in its books.

Using this method, petitioner recorded the value of the shares received at the carrying value of the assets given up to acquire the same. Since the amount of asset given up has the same value as the asset received, no gain or loss was recognized.

XXX

XXX

XXX

8. Q: If no gain or loss was recognized in the books, what was reported in your books? ~

A: We have reported the acquisition of the additional investment in shares in SM Prime and the reduction of assets transferred to acquire the same. The transaction was disclosed in the 2013 AFS.

9. Q: Can you point to the relevant portion of the 2013 AFS and notes the proof your statement? A: You can refer to Notes 3, 5, 11, and 13 of the AFS. Note 3, page 9 of the AFS, disclosed the petitioner's accounting policy with respect to common control transactions. Note 5, pages 27-28, disclosed the various transactions involved, and Note 11, pages 33-34, showed the movement of the assets, reflecting the disposal and acquisition." The foregoing accounting treatment of the subject transactions is based on Q&A No. 2011-02 on PFRS 3.2 -

Common Control

Business Combinations issued by the Philippine Interpretations Committee (PIC), which provides that the most relevant and reliable accounting policies for common control business combination would either be a) the pooling of interests method, or b) the acquisition method in accordance with PFRS 3, and states that when there is an absence of specific guidance in PFRS, the management shall use its judgment in developing and applying an accounting policy that is relevant and reliable.

Further examination of the 2013 ITR and supporting schedules reveals that the subject gain of P5,601,476,029.00 appears as a reconciling item in Schedule 9 Reconciliation of Net Income per Books Against Taxable Income.38 Analysis of 2013 AFS Note 11 -Investments in Shares of Stock of Subsidiaries39 shows petitioner's investments in subsidiaries and associates, which includes the following:

Note 11

I

2013

I

SM Prime

I

P2h221 947 649.00 I 38 Exhibit P-2263-32 to 33.

39 Exhibit P-2255-44.

2012

I Increase(Decrease)

P5,354 517,804.00 I P15,867,429,845.00 Jk-

Ms. Dela Cruz explained that the P15,867,429,845.00 increase in investment in SM Prime was paid through the transfer of properties amounting to P9,939,936,971.00 and the remaining amount of P5,927,492,873.00 was paid through the transfer of shares in real estate subsidiaries of SMIC.40 Details are shown hereafter:

Amount

Total

Tender Offer

SM Development Coro.

p 36 801 633.00 Highlands Prime, Inc.

969 383 603.00 p 1 006 185 236.00

Merger

SM Land Inc.

1,343 093,336.00 1,343,093,336.00

Share Swap

Taqaytay Resort Development Corp.

2S 028 560.00 SM Hotels and Conventions Corp.

1 099 999 500.00 SM Arena Complex CorP.

399 999 500.00 Prime Metroestate, Inc.

707,673 709.00 Rappel Holdings, Inc.

1,345 513,032.00 3,578,214,301.00

Total Value of Shares Transferred

p 5,927,492,873.00

Property Swap

Radisson Cebu Hotel

P2 012 389 799.00

Pico Sands Hotel

392 515 679.00

SMX Convention Center

1,026,036 361.00

Taal Vista Hotel

673,666 273.00

MOAArena

2,967,384 549.00

MOA Arena Annex

1 371,139 638.00

Taqaytay Lot

679 267 113.00

Corporate Office

23 013 571.00

Casino and WWTP

177 137 316.00

EDSA West

11,913 329.00

Park Inn Davao

605,473 344.00

Total Value of Property Transferred

p 9,939,936,971.0041

Grand Total

P15,867,429,84S.OO On the other hand, Note 13 - Investment Properties42 disclosed the changes in investment and property account, including the net book value of the disposals/retirements of assets as follows:

Note 13:

Total

Cost

Disposals/Retirements

P13 848,052,887.00 Less: Accumulated Depreciation 8r. Impairment Loss

Disposals/Retirements

P2,993,642 013.00

Net Book Value

P10,854,410,874.00 40 Q&A No. 10, Judicial Affidavit of Helen Grace D. DelaCruz, Docket, Vol. IV, p. 1710. 41 Should be P9,939,936,972.00.

42 Exhibit P-2255-46.

pc-

As can be gleaned from the tables above, there is a difference between the total value of property transferred of P9,939,936,971.00 as explained by Ms. Dela Cruz and the Net Book Value of transferred properties of P10,854,410,874.00 per Note 13 of the AFS. Ms. Dela Cruz explained that Note 13 of AFS includes all asset disposals, including the P9,939,936,971.00 related to the transfer of assets to SM Prime reported under pooling of interest method, while the difference of P914,473,903.00 (P10,854,410,874.00 less P9,939,936,971.00) pertains to other properties not reported under the pooling of interest method.43 Further, regarding the difference between the Net Book Value used in the computation of gain on transfer of properties amounting to P10,539,936,971.0044 and the Net book Value as shown in the table above amounting to P9,939,936,971.00, Ms. Dela Cruz explained that the difference of P600,000,000.00 (P10,539,936,971.00 less P9,939,936,971.00) pertains to the impairment loss recognized for the year.45 Thus, petitioner has completely explained and proven that the corresponding income payment/gain of the CWT amounting to P807,070,650.00 was reported in its Annual ITR for 2013. With regard to the transfer of Conrad Hotel amounting to P1,018,606,310.00 and

Park

Inn

Davao

amounting to P106,978,604.00, petitioner treated the transfer of properties similar to reimbursement at cost by transferring the carrying value of the construction-related costs of Conrad Hotel to SM Prime and the carrying value of the furniture and fixtures of Park Inn Davao to Hotel Specialist Davao, Inc. in exchange for cash reimbursements. Thus, no gain or loss was recognized. 46 Ms. Dela Cruz further explained:47

19. Q:How much taxes were withheld on the transfer of Conrad Hotel? 1"-- 43 Q&A No. 11, Judicial Affidavit of Helen Grace D. Dela Cruz, Docket, Vol. IV, p. 1711. 44 Exhibit P-2277.

45 Q&A No. 13, Judicial Affidavit of Helen Grace D. Dela Cruz, Docket, Vol. IV, p. 1712 and Exhibit P-2255-47.

46 Q&A No. 26, Judicial Affidavit of Helen Grace D. DelaCruz, Docket, Vol. IV, pp. 1715-1716. 47 Q&A Nos. 19, 21 to 23 & 25, Judicial Affidavit of Helen Grace D. Dela Cruz, Docket, Vol. IV, pp. 1714-1715.

CfA Case No. 9322

A: SM Prime withheld Php20,372,126.20 from the transfer value of Php1,018,606,310.15 for Conrad Hotel.

XXX

XXX

XXX

21. Q:Can you explain why there is a difference between the amount shown in the certificate and the value of the transfer of Conrad Hotel you previously mentioned?

A: Exhibit P-1083, the creditable withholding tax certificate issued by SM Prime Holdings, Inc. included the transfer of Conrad Hotel as well as other charges to SM Prime Holdings, Inc. as follows:

Amount

2%EWT

Conrad Hotel

1,018,606 310.15 20 372,126.20 Gasoline charges 39 371.84 787.43 Office supplies 14 451.96 289.04 Payroll processing 2 891.07 57.82

Total

1,018,663,025.02 20,373,260.49

These

other charges were centralized with Petitioner and then charged to SM Prime Holdings, Inc.

Petitioner treated the reimbursement as reduction in the related expense and not as income.

22. Q:Exhibit P-1083 shows that a 2% withholding tax rate was used. Can you tell us if you know why the withholding agent used 2% withholding tax rate rather than 5%?

A: The 2% rate was used because the transfer did not involve a real property but only the total value of the construction costs of the hotel. At the time of transfer, Conrad Hotel was still under construction. It also included other charges that fall under the category of services.

23. Q:How much taxes were withheld on the transfer of Park Inn Davao?

A: Hotel Specialist Davao

Php825,274.59 from Php82,527,459.~ Inc. withheld 1% tax of the transfer value of

XXX

XXX

XXX

25. Q: Can you explain why only the amount of Php82,527,459 was subjected to withholding tax? A: We did not receive the certificate for the remaining amount. Hence, we did not claim any tax credit corresponding to the balance.

While SMIC presented the corresponding Certificates of Taxes Withheld (BIR Form No. 2307) in relation to the transfer of properties of Conrad Hotel48 and Park Inn Davao,49 it failed to fully explain and substantiate the said transaction as it did with the property swap transaction with SM Prime Holdings, Inc. From the documents submitted, the Court cannot ascertain whether it was proper not to recognize any gain or loss on the transactions resulting to the absence of the corresponding gain on disposal from SMIC's ITR. Thus, for these transactions, the third requisite set forth in Section 2.58.3 of Revenue Regulations No. 2-98, as amended, is not sufficiently complied.

Clearly from the foregoing, SMIC established compliance with the requisite that the income upon which the taxes were withheld should be included in the return of the recipient, but only up to the extent of P807,070,650.0050 with related gross income of P16,141,413,000.00, representing the property swap with SM Prime Holdings, Inc. which was accounted for using the pooling of interest method.

b. Disallowance of P17,567,246.7351, P114,592,822.0753 claimed

CWT

amounting to P239,208.9952, and The CWT amounting to P17,567,246.73 was disallowed due to improper recording of the corresponding income of P383,246,997.60 in the petitioner's books and for failure to substantiate the same with original copies of BIR Form No. 2307. Cjt-

Similarly, the CWT amounting to P239,208.99, with the corresponding gross income amounting to P4,142,473.82, were disallowed due to failure to submit original Certificates of Taxes Withheld (BIR Form No. 2307).

Perusal of SMIC's motion shows that the arguments raised were already discussed in the assailed Decision. 54 With regard to the disallowed CWT for the taxable year 2007 in the amount of P114,592,822.07, the same pertains to the CWT carried over from the taxable year 2007, together with the CWT for the year 2012 of P296,840,444.23, which were offset against SMIC's income tax due for taxable year 2013.55 The Court ruled that for failure to offer supporting evidence, the same is not considered in offsetting SMIC's income tax due for the year 2013. 56 SMIC argues that the Annual ITR for the year 2007 with the copy of the SAWT for the 1st to 4th quarters of 2007, are enough to establish that the excess credits reflected in the 2013 ITR and used to pay the tax due in 2013 are valid, existing and duly supported by necessary documents. 57 Moreover, SMIC contends that pursuant to Section 235, in relation to Section 203 of the NIRC, it is mandated to keep its record for only three (3) years. 58 SMIC cites Section 2.58.3(C) of Revenue Regulations No. 2-98, which states:

"SECTION 2.58.3. Claim for Tax Credit or Refund.

XXX

XXX

XXX

(C)

Excess Credits- An individual or corporate taxpayer's excess expanded withholding tax credits for the taxable quarter/year shall automatically be allowed as a credit against his income tax due for '?c- 54 Decision, Docket, Vol. IV, pp. 1624-1634. 55 Decision, Docket, Vol. IV, p. 1634. 56 Decision, Docket, Vol. IV, p. 1634. 57 Q&A Nos. 50 to 51, Amended Judicial Affidavit of Helen Grace Dela Cruz, Exhibit "P-2278", Docket, Vol. II, p. 577.

58 Omnibus Motion, Docket, Vol. IV, p. 1699.

AMENDED DEOSION

the taxable quarters/years immediately succeeding the taxable quarters/years in which the excess credit arose, provided he submits with his income tax return, a copy of the first page of his income tax return for the previous taxable period showing the amount of his excess withholding tax credits, and on which return he has not opted for a cash refund or tax credit certificate." (Emphasis supplied) It should be noted that the foregoing applies to the automatic crediting of excess CWT against the income tax due for the taxable quarters/year immediately succeeding the taxable quarters/year in which the excess credit arose. In this case, SMIC seeks to be allowed to automatically credit its 2007 excess CWT to its 2013 income tax liability so that its refundable CWT will not be reduced. Further, this case involves a claim for refund of excess CWT. The well-settled rule is that tax refunds are in the nature of tax exemptions and as such, are regarded as in derogation of sovereign authority and to be construed in strictissimi juris against the person or entity claiming it. 59 To reiterate, case law dictates that in a claim for tax refund or tax credit, the applicant must prove not only entitlement to the claim but also compliance with all the documentary and evidentiary requirements therefor.60 The Supreme Court ruled on the importance of submitting supporting documents in a claim for refund, thus: 61 "xxx First, a judicial claim for refund or tax credit in the CTA is by no means an original action but rather an appeal by way of petition for review of a previous, unsuccessful administrative claim. Therefore, as in every appeal or petition for review, a petitioner has to convince the appellate court that the quasi-judicial agency a quo did not have any reason to deny its claims.

In this case, it was necessary for ~ 59 Commissioner of Internal Revenue v. S.C Johnson and Son, Inc., G.R. No. 127105, June 25, 1999, 309 SCRA 87; Commissioner of Internal Revenue v. Tokyo Shipping Co., Ltd., G.R. No. L- 68252, May 26, 1995, 244 5CRA 332; Commissioner of Customs v. Court of Tax Appeals, 328 5CRA 822.

60 JRA Philippines, Inc. v. Commissioner of Internal Revenue, G.R. No. 171307, August 28, 2013 citing the case of Western Mindanao Power Corporation v. Commissioner of Internal Revenue, G.R. No. 181136, June 13, 2012.

61 Atlas Consolidated Mining and Development Corporation v. Commissioner of Internal Revenue, G.R. No. 145526, March 16, 2007.

petitioner to show the CTA not only that it was entitled under substantive law to the grant of its claims but also that it satisfied all the documentary and evidentiary requirements for an administrative claim for refund or tax credit. Second, cases filed in the CTA are litigated de novo. Thus, a petitioner should prove every minute aspect of its case by presenting, formally offering and submitting its evidence to the CTA. Since it is crucial for a petitioner in a judicial claim for refund or tax credit to show that its administrative claim should have been granted in the first place, part of the evidence to be submitted to the CTA must necessarily include whatever is required for the successful prosecution of an administrative claim." (Emphasis supplied.) Thus, the Court aptly ruled that the CWT in the amount of P17,567,246.73, P239,208.99, and P114,592,822.07 should be disallowed for failure to properly substantiate the same.

Respondent's

Motion

for

Partial Reconsideration

Respondent avers that it is incumbent upon the claimant to prove actual remittance of the alleged withheld taxes to the BIR. Also, respondent points out that the fact of withholding of taxes is one thing, while the fact of remittance is another. Thus, petitioner should have presented evidence to prove actual remittance of the alleged taxes to the BIR. Finally, respondent posits that he is not obliged to prove before the Court the non-remittance of the alleged withheld taxes. It is the duty of petitioner to prove otherwise.62 Citing Revenue Regulations (RR) No. 2-98 and Section 2 of Revenue Regulations (RR) No. 2-2006, respondent asserts that proof of actual remittance of the taxes withheld to the BIR is indispensable in a claim for refund of excess CWTs. Considering that SMIC failed to prove that the alleged withheld taxes came to the hands of the BIR, it is unquestionably not entitled to any refund.63 SMIC counters that proof of withholding is not its responsibility and that the CIR cannot invoke RR No. 2-2006 and RR No. 2-98 tole-

justify the imposition of additional requirement on the refund claimant beyond what is being asked for under the law and established in relevant jurisprudence to unduly burden it.64 The Court finds CIR's motion bereft of merit. Section 58(8) of NIRC, as amended, provides that: "(B) Statement of Income Payments Made and Taxes Withheld. - Every withholding agent required to deduct and withhold taxes under Section 57 shall furnish each recipient, in respect to his or its receipts during the calendar quarter or year, a written statement showing the income or other payments made by the withholding agent during such quarter or year, and the amount of the tax deducted and withheld therefrom, simultaneously upon payment at the request of the payee, but not late than the twentieth (20th) day following the close of the quarter in the case of corporate payee, or not later than March 1 of the following year in the case of individual payee for creditable withholding taxes.

For final withholding taxes, the statement should be given to the payee on or before January 31 of the succeeding year." Pursuant to Section 58(8) of NIRC, as amended, and as implemented by Section 2.58(8) of Revenue Regulations No. 2-98, every payor/withholding agent is required to furnish each payee/income recipient with a written statement showing the amount of income payments made by payor/withholding agent and the corresponding tax deducted and withheld therefrom. Said statement refers to SIR Form No. 2307 (Certificate of Creditable Tax Withheld at Source) which is a proof of the fact of withholding. Subsequently, Section 2.58.3(8) of RR No. 2-98, as amended, clearly provides:

"SECTION 2.58.3.

Claim for Tax Credit or

Refund.-

XXX

XXX

XXX ~

(B)

Claims for tax credit or refund of any creditable income tax which was deducted and withheld on income payments shall be given due course only when it is shown that the income payment has been declared as part of the gross income and the fact of withholding is established by a copy of the withholding tax statement duly issued by the payor to the payee showing the amount paid and the amount of tax withheld therefrom. Proof of remittance is the responsibility of the withholding agent." (Emphasis supplied.) Thus, SMIC is correct in holding that it is not responsible for the proof of remittance of the creditable taxes withheld. Further, the Supreme Court consistently held that the certificate of creditable tax withheld at source is the competent proof to establish the fact that taxes are withheld, to wit: 65 "Thus, upon presentation of a withholding tax certificate complete in its relevant details and with a written statement that it was made under the penalties of perjury, the burden of evidence then shifts to the Commissioner of Internal Revenue to prove that (1) the certificate is not complete; (2) it is false; or (3) it was not issued regularly. Petitioner's posture that respondent is required to establish actual remittance to the Bureau of Internal Revenue deserves scant consideration. Proof of actual remittance is not a condition to claim for a refund of unutilized tax credits. Under Sections 57 and 58 of the 1997 National Internal Revenue Code, as amended, it is the payor-withholding agent, and not the payee-refund claimant such as respondent, who is vested with the responsibility of withholding and remitting income taxes." (Emphasis supplied) As extensively discussed in Commissioner of Internal Revenue

v. Asian Transmission Corporation}6 the Supreme Court, citing the fo-

ruling of the Court of Tax Appeals (CTA) En Bane, held that proof of actual remittance of the taxes withheld is not necessary: "xxx proof of actual remittance by the respondent is not needed in order to prove withholding and remittance of taxes to petitioner. Section 2.58.3 (B) of Revenue Regulations No. 2- 98 clearly provides that proof of remittance is the responsibility of the withholding agent and not of the taxpayer-refund claimant. It should be borne in mind by the petitioner that payors of withholding taxes are by themselves constituted as withholding agents of the BIR. The taxes they withhold are held in trust for the government. In the event that the withholding agents commit fraud against the government by not remitting the taxes so withheld, such act should prejudice herein respondent who has been duly withheld taxes by the withholding agents acting under government authority. Moreover, pursuant to Section 57 and 58 of the NIRC of 1997, as amended, the withholding of income tax and the remittance thereof to the BIR is the responsibility of the payor and not the payee. Therefore, respondent, xxx has no control over the remittance of the taxes withheld from its income by the withholding agent or payor who is the agent of the petitioner. The

Certificates of Creditable Tax Withheld at Source

issued by the withholding agents of the government are prima facie proof of actual payment by herein respondent-payee to the government itself through said agents. We stress that the pertinent provisions of law and the established jurisprudence evidently demonstrate that there is no need for the claimant, respondent in this case, to prove actual remittance by the withholding agent (payor) to the BIR." (Emphasis supplied) Thus, based on the foregoing, the denial of respondent's motion is in order.

To conclude, SMIC was able to convince the Court that it is partially entitled to its claim. However, respondent failed to discharge /<--- his burden to warrant the partial reconsideration of the assailed Decision in his favor.

WHEREFORE, respondent's Motion for Partial Reconsideration (Re: Decision Promulgated 4 March 2019) is DENIED, for lack of merit.

On the other hand, petitioner's

Motion

for

Partial

Reconsideration

is

PARTIALLY

GRANTED.

Accordingly, the Decision promulgated on March 4, 2019 is MODIFIED as follows: "WHEREFORE, instant

Petition

for

Review

is PARTIALLY GRANTED. Accordingly, let a tax refund or a tax credit certificate be issued in favor of petitioner in the total amount of P986,366,230.72, representing petitioner's excess and unutilized Creditable Withholding Tax for the calendar year ended December 31, 2013, computed as follows:

Claimed CWT

Less: Disallowed CWf

Not properly reported in FS (P943,656, 142.68 less P807 070 650.00) Not properly reported in FS and not fully substantiated Reported in FS but supported by photocopy

Refundable CWT

Less: Balance of 2013 Income Tax

Due

Net Refundable CWT

I CONCUR:

Pl,l70,533,633.46 P136,585 492.68 17,567 246.73 239,208.99 154,391,948.40 P1,016,141,685.06 29,775,454.34 p 986,366,230.72 a~o.a..r-.._..~1~' JtrANITO C. CASTANEDA', JR.

Associate Justice

~·/:~ CATHERINET.MANAHAN

Associate Justice

ATTESTATION

I attest that the conclusions in the above Amended Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. ~CC-G..:Y"a.-.-~-' 9 .fuANITO C. CASTANED( 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 Amended Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

Presiding Justice