GHD Pty Ltd. vs. Commissioner of Internal Revenue

DECISION

DEL ROSARIO, P.J.:

Before this Court is a Petition for Review1 filed on October 15, 2018 by petitioner GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) against respondent Commissioner of Internal Revenue, praying that judgment be rendered ordering respondent to refund or issue in favor of petitioner a Tax Credit Certificate (TCC) in the amount of P34, 112,873.00, allegedly representing its excess and unutilized creditable withholding taxes (CWTs) for fiscal year ending June 30, 2016 (FY 2016).

THE PARTIES

Petitioner GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) is the Philippine Branch Office of GHD Pty Ltd. , a foreign corporation organized and existing under the laws of Australia, with registered address at 11/F Alphaland Southgate Tower, 2258 Chino Roces Avenue corner EDSA, Makati City.2 It is a registered taxpayer 1 CTA Docket vol. 1, pp. 12-20.

2 Par. 1, Admitted Facts, Joint Stipulation of Facts and Issues (JSFI), CTA Docket vol. I,

p. 288; Exhibits "P-1-1 " and "P -1-2", CT A Docket val. I, pp. 384-394 and 395-4 7 ~

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR of the Bureau of Internal Revenue (BIR), Revenue Region No. 8, Revenue District Office (RDO) No. 048, with Taxpayer Identification No. 203-471-895-000. 3 Petitioner was granted by the Securities and Exchange Commission (SEC) a License to Transact Business as a branch office in the Philippines to engage in technical management consultancy in mining, defense, and water industry and public works, urban planning and developments, geotechnical and dams and power technology. 4 Respondent is the duly-appointed Commissioner of Internal Revenue (CIR) empowered to perform the duties of said office, including, among others, the power to decide, approve and grant claims for refund or tax credits of erroneously paid or overpaid taxes, as provided by law. He may be served summons, pleadings, and other processes of this Court at his office at the Legal Division of Revenue Region No.8, 2nd Fir., BIR Building, 313 Gil Puyat Ave., Makati City. 5

THE FACTS

On October 15, 2016, petitioner filed with the BIR, through the electronic Filing and Payment System (eFPS), its Annual Income Tax Return (ITR) for FY 2016.6 Petitioner indicated on the face of its Annual ITR for FY 2016 its option to be refunded its income tax overpayment for FY 2016.7 On September 27, 2018, petitioner filed with the BIR RDO No. 048 an administrative claim for tax refund of its excess and unutilized CWTs for FY 2016 in the amount ofP34, 112,873.00.8 Due to the inaction of respondent and in order to preserve its right to judicially claim for refund its alleged excess and unutilized CWTs for FY 2016 within the prescribed two (2)-year period, petitioner filed the present Petition for Review before this Court on October 15, 2018.9 3 Par. 2, Admitted Facts, JSFI, CTA Docket vol. I, p. 288; Exhibit "P-2", CTA Docket vol. I,

p. 475.

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

On December 28, 2018, within the extended period, 10 respondent filed his Answer (with Motion to Dismiss), 11 raising the following special and affirmative defenses: (i) the Petition for Review states no cause of action; (ii) petitioner's claim for refund or issuance of TCC in the amount of P34, 112,873.00 representing alleged excess and unutilized CWTs was inaccurate or erroneous since the same is still subject to investigation by the BIR; (iii) petitioner must show that it did not carry over its 2016 alleged unutilized CWTs to the succeeding taxable years; and, (iv) petitioner must show that it has complied with the provisions of Section 76, in relation to Sections 204 and 229, of the National Internal Revenue Code (NIRC) of 1997, as amended. In his Motion to Dismiss, respondent avers that: (1) he interposes opposition to petitioner's manifestation that only a notarized copy of the Secretary's Certificate was attached to the Petition for Review and that the Secretary's Certificate authenticated by the Philippine Embassy in Australia will be submitted once its counsel receives it; (2) he moves for the dismissal of the petition on the ground that petitioner has no legal capacity to sue when it filed a defective Petition for Review; and, (3) the Court has no jurisdiction over the judicial claim for refund that was filed beyond the two (2)-year prescriptive period. Respondent's Pre-Trial Brief12 and Petitioner's Pre-Trial Brief13 were both filed on May 27, 2019. The Pre-Trial Conference was held on May 30, 2019. 14 During the Pre-Trial Conference, petitioner's counsel submitted the Philippine Consular Authentication of the Special Power of Attorney attached to the Petition for Review. 15 On July 1, 2019, the parties filed their Joint Stipulation of Facts and lssues. 16 In the Resolution dated July 8, 2019, the Court approved the parties' Joint Stipulation of Facts and Issues and terminated the Pre-TriaiY On July 30, 2019, the Court issued the Pre-Trial Order. 18 1° CTA Docket vel. I, p. 79.

11 CTA Docket vel. I, pp. 81-86.

12 CTA Docket vel.

pp. 224-227.

13 CTA Docket vel.

pp. 229-243.

14 CTA Docket vel.

pp. 251-253 and 260-261.

15 CTA Docket vel.

pp. 260-261.

16 CTA Docket vel.

pp. 288-293.

17 CTA Docket vel.

p. 295. 18 CTA Docket vel.

pp. 310-317. ~

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

Upon motion19 of petitioner, the Court commissioned Mr. Emmanuel Y. Mendoza as Independent Certified Public Accountant (ICPA) on July 25, 2019.20 During trial, petitioner presented testimonial and documentary evidence.

It presented the following witnesses: Ms. Katrina S. Maninang, 21 petitioner's Tax Manager; and Mr. Emmanuel Y. Mendoza,22 the Court-commissioned ICPA.

On November 4, 2019, petitioner filed its Formal Offer of Evidence.23 Petitioner's exhibits were admitted in evidence in the Resolution dated February 11, 2020, 24 save for Exhibit "P-1-2" for failure of the exhibit formally offered and identified to correspond with the document actually marked; and, Exhibit "P-24-31-A", for not being found in the records of the case.

Petitioner filed a Motion for Reconsideration (Re: Resolution dated February 11, 2020) on March 4, 2020 moving for the reconsideration of the denial of its Exhibit "P-1-2".25 This was granted by the Court in the Resolution dated September 21, 2020. 26 Considering that respondent manifested during the Pre-Trial Conference that he will not present any evidence,27 the Court directed the parties to file their respective memoranda within twenty (20) days from receipt of the September 21, 2020 Resolution. Petitioner filed its Memorandum28 on October 20, 2020 while respondent filed a Motion for Extension of Time to File Memorandum29 on October 21, 2020. Respondent's Motion was expunged from the records for being a prohibited motion; and, the case was submitted for decision in the Resolution dated November 4, 2020. 30 19 CTA Docket vol. I, pp. 270-273.

2° CTA Docket vol. I, pp. 297-302.

21 Exhibit "P-13", CTA Docket vol. I, pp. 110-122; and Minutes of Hearing dated July 30, 2019, CTA Docket vol. I, pp. 304-305.

22 Exhibit "P-60", CTA Docket vol. I, pp. 329-341; and Minutes of Hearing dated September 24, 2019, CTA Docket vol. I, pp. 342-346. 23 CTA Docket vol. I, pp. 363-382.

24 CTA Docket vol. II, pp. 590-593.

25 CTA Docket vol. II, pp. 598-603.

26 CTA Docket vol. II, pp. 612-614.

27 CT A Docket vol. I, pp. 253 and 260-261. 28 CTA Docket vol. II, pp. 615-637.

29 CTA Docket vol. II, pp. 638-641 .

3° CTA Docket vol. II, p. 644. ()')

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

On November 10, 2020, the Memorandum (for Respondent) was filed through registered mail and received by the Court on November 24, 2020. 31 This was, however, expunged by the Court in the Resolution dated December 2, 2020.32

ISSUE

The parties stipulated the following issue for the Court's resolution:

Whether or not petitioner is entitled to its claim for refund or issuance of a TCC in the amount of P34, 112,873.00, representing petitioner's excess and unutilized CWTs for the FY ending June 30, 2016.33

PARTIES' ARGUMENTS

Petitioner argues that: (i) it is entitled to the refund of its excess and unutilized input CWTs for FY 2016 in the amount of P34, 112,873.00 pursuant to Sections 58(0) and 76 of the NIRC of 1997, as amended; (ii) its administrative and judicial claims for refund were filed within the two (2)-year prescriptive period provided in Sections 204(C) and 229 of the NIRC of 1997, as amended; (iii) its excess and unutilized CWTs for FY 2016 are duly substantiated by documentary evidence; (iv) the income upon which the withholding was made was reported as part of the revenues declared in its ITR; (v) it did not exercise the option to carry over its excess and unutilized CWTs for FY 2016 to succeeding taxable periods; and, (vi) it applied its "prior year's excess credits" from FY ending June 30, 2015 (FY 2015) as payment for its Regular Corporate Income Tax (RCIT) for FY 2016.

Respondent, in his Answer, counter-argues that: (i) the Petition for Review states no cause of action; (ii) petitioner's claim for refund or issuance of TCC in the amount of P34, 112,873.00 representing alleged excess and unutilized CWTs was inaccurate or erroneous since the same is still subject to investigation by the BIR; (iii) petitioner must show that it did not carry over its 2016 alleged unutilized CWTs to the succeeding taxable years; and, (iv) petitioner must prove that it has complied with the provisions of Section 76, in relation to Sections 204 and 229, of the NIRC of 1997, as amended.

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

THE COURT'S RULING

In its AnnuaiiTR for FY 2016, petitioner had total tax credits of P132,297,352.00, broken down as follows: 34

Item

Amount

Prior Year's Excess Credits other than MCIT p 97,201,828.00 Creditable Tax Withheld from Previous 17,987,460.00 Quarter/s per SIR Form No. 2307 Creditable Tax Withheld per SIR Form No.

17,108,064.00 2307 for the 4th Quarter

Total Tax Credits/Payments

p 132,297,352.00 Petitioner claims that its RCIT for the period amounting to P14,819,027.00 was paid for using its Prior Year's Excess Credits other than MCIT in the amount of P97,201 ,828.00. This left a balance of P82,382,801.00 in its prior year's excess credits. Petitioner alleges that its CWTs in the total amount of P35,095,524.00 incurred during the current period were not utilized to cover its current income tax liability. Petitioner's own verification likewise revealed that CWTs in the amount of P982,651.00 were covered by duplicate CWT Certificates. Thus, there remained CWTs in the total amount of P34,112,873.00 which petitioner claims for refund, as follows:

Item

Amount

CWTs from previous quarters p 17,987,460.00 CWTs for the fourth quarter 17,108,064.00 Total CWTs for FY ending June 30, 2016 p 35,095,524.00

Less: Adjustment on Duplicate CWT

982,651.00

Certificates

CWTs claimed for refund p 34,112,873.00 In support of its claim for refund, petitioner offered in evidence the following documents: Quarterly35 and Annual36 ITRs for FY 2016, Audited Financial Statements (AFS) for FY 2016, 37 Quarterly ITRs for FY ending June 30, 2017 (FY 2017),38 Original39 and Amended40

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

Annual ITRs for FY 2017, Schedule of CWTs for FY 2016,*1 Summary Alphalist of Creditable Withholding Tax (SAWT) for FY 2016,*? General Ledger (GL) of Revenue for FY 2016,*° GL of CWTs for FY 2016, Annual ITRs for taxable years 2007 to 2015,*° Prior Year’s Certificates of CWTs at Source for FY 2015,4° BIR Form 2307 supporting CWTs claims for revenue reported in the Annual ITR for FY 2016,*’ BIR Form 2307 supporting CWTs claims for revenue reported in Annual ITR for FY 2015 but collected in FY 2016,*8 official receipts (ORs) supporting CWTs claims for revenue reported in Annual ITR for FY 2016,4° ORs supporting CWTs claims for revenue reported in Annual ITR for FY 2015 but collected in FY 2016,°° billing statements (BS) supporting CWTs claims for revenue reported in ITRs for FY 2016,°' Quarterly SAWT for FY 2015,5* and Schedule of Reconciliation.** Petitioner chose the option to be refunded in _ its

Annual ITR

Pertinent to the resolution of the present case is Section 76 of the NIRC of 1997, as amended, which states:

“SEC. 76. Final Adjustment Return. — Every corporation liable to tax under Section 27 shall file a final adjustment return “ Exhibit “P-16”.

42 Exhibits “P-18-1” to “P-18-4”.

“3 Exhibits “P-19-1” to “P-19-2”.

4 Exhibit “P-21”.

45 Exhibits “P-23-1" to “P-23-9”.

48 Exhibits “P-24-1-A” to “P-24-200-A’, “P-24-201-A” to “P-24-207-A” and “P-24-208-A’ to “P-24-223-A”.

47 Exhibits “P-25-1-A” to “P-25-44-A”, “P-25-47-A” to “P-25-47-A” to “P-25-151-A’, “P-26- 1-A" to “P-26-14-A”, “P-27-1-A”, “P-28-1-A” to “P-28-3-A’, “P-29-1-A” to “P-29-4-A”, “P-30- 1-A” to “P-30-4-A”, “P-31-1-A”, “P-32-1-A” to “P-32-16-A”, “P-33-1-A”, “34-1-A” to “P-34-4- A’, “P-36-1-A” to “P-36-23-A”, “P-37-1-A” to “P-37-8-A”, “P-38-1-A” to “P-38-2-A”, “P-39- 1-A” and “P-40-1-A” to “P-40-40-2-A”.

48 Exhibits “P-25-67-A’, “P-26-8-A”, “P-26-9-A”, “P-26-11-A”, “P-36-12-A’, “P-38-1-A” to “P-38-2-A”, “P-41-1-A” to “P-41-5-A”, “P-42-1-A” to “P-42-23-A”, “P-43-1-A” to “P-43-2-A", “P-44-1-A”, “P-46-1-A” to “P-46-4-A”, “P-47-1-A” to “P-47-2-A”, and “P-48-1-A" to “P-48-2- 4° Exhibits “P-25-1-B” to “P-25-44-B”, “P-25-47-B” to “P-25-151-B”, “P-26-1-B” to “P-26- 14-B’, “P-28-1-B” to “P-28-3-B”, “P-31-1-B”, “P-32-1-B” to “P-32-16-B”, “P-33-1-B”, “P-34- 1-B” to “P-34-2-B”, “P-34-4-B”, “P-35-1-B” to “P-35-2-B”, “P-36-1-B” to “P-36-23-B”, “P-37- 1-B” to “P-37-8-B”, “P-38-1-B” to “P-38-2-B”, and “P-39-1-B”.

°° Exhibits “P-26-8-B”, “P-26-9-B”, “P-26-11-B”, “P-36-12-B”, “P-38-1-B”, “P-41-1-B’ to “P- 41-5-B”, “P-42-1-B” to “P-42-24-B”, “P-44-1-B”, “P-45-1-B”, “P-46-1-B” to “P-46-4-B’, “P- 47-1-B’ to “P-47-2-B”, and “P-48-1-B” to “P-48-4-B’, 5* Exhibits “P-25-1-C” to “P-25-44-C”, “P-25-47-C’ to “P-25-151-C”, “P-28-1-C” to “P-28-3- C”, “P-31-1-C’, “P-32-1-C” to “P-32-16-C”, “P-33-1-C”, “P-34-1-C” to “P-34-4-C’”, “P-35-1- C” to “P-35-2-C”, “P-36-1-C” to “P-36-23-C’, “P-27-1-C”, and “P-37-1-C” to “P-37-8-C”.

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR covering the total taxable income for the preceding calendar or fiscal year. If the sum of the quarterly tax payments made during the said taxable year is not equal to the total tax due on the entire taxable income of that year, the corporation shall either:

(A)

Pay the balance of tax still due; or

(B)

Carry-over the excess credit; or

(C)

Be credited or refunded with the excess amount paid, as the case may be.

In case the corporation is entitled to a tax credit or refund of the excess estimated quarterly income taxes paid, the excess amount shown on its final adjustment return may be carried over and credited against the estimated quarterly income tax liabilities for the taxable quarters of the succeeding taxable years. Once the option to carry-over and apply the excess quarterly income tax against income tax due for the taxable quarters of the succeeding taxable years has been made, such option shall be considered irrevocable for that taxable period and no application for cash refund or issuance of a tax credit certificate shall be allowed therefor." Pursuant to the above-mentioned provision, a corporation entitled to a tax credit or refund of the excess estimated quarterly income taxes paid essentially has two (2) options, either: (a) to carry- over the excess credit and apply the same against the estimated quarterly income tax liabilities for the taxable quarters of the succeeding taxable year; or (2) to apply for a cash refund or issuance of a TCC within the prescribed period. If the carry-over option is selected, such is irrevocable for that taxable period and no application for cash refund or issuance of tax credit certificate shall be allowed therefor. 54 In exercising its option, the corporation must signify in its Annual ITR (by marking the option box provided therein) its intention, either to carry over the excess credit or to claim a refund. 55 To facilitate tax collection, these remedies are in the alternative and the choice of one precludes the other.

In this case, petitioner marked the box corresponding to the option "To be refunded" in its Annual ITR for FY 2016.56 Evidently, petitioner chose the option to be refunded under Section 76 of the NIRC of 1997, as amended.

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

Likewise, a perusal of petitioner's Annual ITR for FY 2017 shows that the amount of P34,112,873.00 representing its excess and unutilized CWTs requested to be refunded has not been carried over to the succeeding taxable periods. The presentation of the Annual ITR for the succeeding taxable year would suffice in proving that prior year's excess credits were not utilized for the succeeding taxable year in order to make a final determination of the total tax dueY The "Prior Year's Excess Credits Other Than MCIT" found in petitioner's Original58 and Amended59 Annual ITR for FY 2017 shows the amount ofP82,382,801.00. This amount is the exact balance of the prior year's excess credits of petitioner for FY 2016, which means that the amount prayed to be refunded in this case has not been carried over to the succeeding FY 2017. What was used as "Prior Year's Excess Credits Other Than MCIT" in the AnnuaiiTR for FY 2017 was only the balance of the prior year's excess credits that was carried over to the succeeding taxable period. Thus, the unutilized CWTs for FY 2016 in the amount of P34, 112,873.00 may accordingly be the subject of a claim for refund under Section 76 of the NIRC of 1997, as amended.

Petitioner's

compliance with the other requisites to claim a tax credit or refund of excess and unutilized

CWTs

Sections 204(C) and 229 of the NIRC of 1997, as amended, provide for the prescriptive period in the filing of administrative and judicial claims for refund or recovery of tax erroneously or illegally collected, respectively, to wit:

"SEC.

204.

Authority of the

Commissioner

to Compromise, Abate and Refund or Credit Taxes. - The Commissioner may -

XXX

XXX

XXX

(C) Credit or refund taxes erroneously or illegally received or penalties imposed without authority, refund the value of internal revenue stamps when they are returned in good condition by the

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR purchaser, and, in his discretion, redeem or change unused stamps that have been rendered unfit for use and refund their value upon proof of destruction. No credit or refund of taxes or penalties shall be allowed unless the taxpayer files in writing with the Commissioner a claim for credit or refund within two (2) years after the payment of the tax or penalty: Provided, however, That a return filed showing an overpayment shall be considered as a written claim for credit or refund.

XXX

XXX

XXX

SEC. 229. Recovery of Tax Erroneously or 11/ega//y Collected. - No suit or proceeding shall be maintained in any court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessively or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Commissioner; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress.

In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of the tax or penalty regardless of any supervening cause that may arise after payment: Provided, however, That the Commissioner may, even without a written claim therefor, refund or credit any tax, where on the face of the return upon which payment was made, such payment appears clearly to have been erroneously paid." Based on the foregoing provisions, a claimant for refund must first file an administrative claim for refund before the respondent, prior to filing a judicial claim before the Court. Notably, both the administrative and judicial claims for refund should be filed within the two (2)-year prescriptive period indicated therein, and that the claimant is allowed to file the latter even without waiting for the resolution of the former in order to prevent the forfeiture of its claim through prescription. 60 While the law provides that the two (2)-year period is counted from the date of payment of the tax, jurisprudence, however, clarified that the two (2)-year prescriptive period to claim a refund actually commences to run, at the earliest, on the date of the filing of the adjusted final tax return because this is where the figures of the gross receipts and deductions have been audited and adjusted, thus, reflecting the results of the operations of a business enterprise.61 60 Metropolitan Bank & Trust Company vs. Commissioner of Internal Revenue, G.R. No. 182582, April 17, 2017.

61 Commissioner of Internal Revenue vs. Univation Motor Philippines, Inc., G.R. No. 231581, April10, 2019. ~

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

In addition to the foregoing, Section 2.58.3(8) of Revenue Regulations (RR) No. 2-98, as amended, provides: "Sec. 2.58.3. Claim for tax credit or refund.-

(A)

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. xxx" (Boldfacing supplied) In fine, petitioner must satisfy the following three (3) essential requisites for the grant of a claim for refund of excess and unutilized CWTs, to wit:

(1) The claim must be filed within the two (2)-year period from the date of payment of the tax, and/or the filing of the AnnuaiiTR;

(2) The fact of withholding is established by a copy of a statement duly issued by the payor to the payee showing the amount paid and the amount of tax withheld; and, (3) It must be shown on the return of the recipient that the income received was declared as part of the gross income.62

First

requisite:

The administrative and judicial claims for refund were filed on time In this case, petitioner electronically filed its Annual ITR for FY 2016 on October 15, 2016.63 Thus, petitioner had until October 15, 2018 within which to file both its administrative and judicial claims for refund. The administrative claim was filed by petitioner on September 27, 2018 as evidenced by its Application for Tax Credits/Refunds64 with attached Letter dated September 25, 2018 addressed to BIR Revenue 62 Commissioner of Internal Revenue vs. Team (Philippines) Operations Corporation, G.R. No. 185728, October 16, 2013.

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

District Office No. 48. 65 Without waiting for the decision of the respondent on its application, petitioner filed the present Petition for Review on October 15, 2018.66 Both the administrative and judicial claims were filed within the two (2)-year prescriptive period in accordance with Sections 204(C) and 229 of the NIRC of 1997, as amended.

Second Requisite: Fact of

withholding is established by copies of withholding statements duly issued by the payor The second requisite mandates petitioner to prove the fact of withholding of the claimed CWTs by a copy of the statement duly issued by the payor, acting as the withholding agent, to the payee, showing the names of the payor and payee, the income payment, the amount of tax withheld, and the nature of the tax paid. Records show that the Court-commissioned ICPA was able to trace the total revenue recorded, reported and collected in 2016 in the amount of P232,407, 198.95, which was subjected by petitioner's customers to CWTs in the amount of P28,304,239.99, broken down as follows:67

Findings

Exhibit

Transactions in Philippine Peso

CWTs were properly supported

P-25-1-A to P-25-44-A

by BIR Form 2307 issued by

P-25-4 7 -A to P-25-151-A

the petitioner's customers while

P-25-1-B to P-25-44-B

the revenues were properly

P-25-47-B to P-25-151-B

supported by official receipts

P-25-1-C to P-25-44-C

and billinQ statements

P-25-47-C to P-25-151-C

CWTs were properly supported by BIR Form 2307 issued by the petitioner's customers while the revenues were supported by official receipts but without

P-26-1-A to P-26-14-A

billing statements

P-26-1-B to P-26-14-B

CWTs were properly supported

by BIR Form 2307 and

revenues were supported only

P-29-1-A to P-29-4-A

by billing statement and without

P-29-1-C to P-29-4-C

or with incomplete official

P-28-1-A to P-28-3-A

receipt but reported in the FY

P-28-1-B to P-28-3-B

2016 Income Tax Return

P-28-1-C to P-28-3-C

65 Exhibit "P-8-1", CTA Docket val. I, pp. 539-543. 66 CTA Docket val. I, p. 12.

67 Exhibit "P-61", ICPA Report, pp. 9-10{)fl

Income

Pavment

CWTs

p 125,456,258.33 p 15,039,783.75 20,164,645.81 1 ,999, 775.03 5,517,019.42 827,552.92

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR cwrs were properly supported

by SIR Form 2307 and

revenues were reported in the

FY 2016 Income Tax Return

P-30-1-A to P-30-4-A

3,056,788.00 Declared revenues were properly supported by Official

Receipts and Billing

Statements while the CWfs were supported by SIR Form

P-31-1-A

2307 but dated outside the

P-31-1-B

period of claim

P-31-1-C

530,317.14 cwrs supported only by photocopied SIR Form 2307 while the revenues were

P-32-1-A to P-32-16-A

properly supported by official

P-32-1-B to P-32-16-8

receipts and billing statements

P-32-1-C to P-32-16-C

8,494,650.08 cwrs were supported by SIR

P-33-1-A

Form 2307 but the payor's TIN

P-33-1-B

indicated in the SIR Form 2307

P-33-1-C

is incorrect

P-51-1

1 ,215,000.00 cwrs were supported by SIR

P-34-1-A to P-34-4-A

Form 2307 but the petitioner's

P-34-1-B to P-34-2-8

TIN is not indicated nor

P-34-4-B

incorrect

P-34-1-C to P-34-4-C

5,442,352.00 Declared revenues were properly supported by official receipts and billing statements but without supporting SIR

P-35-1-B to P-35-2-B

Form 2307

P-35-1-C to P-35-2-C

902,468.00 cwrs were supported by duplicate cwr Certificates

(SIR Form 2307) and

inadvertently included in the FY

2016 Income Tax Return

2,754,688.00 Claimed cwrs were supported

by SIR Form 2307 with

electronic signature while revenues were supported by

P-36-1-A to P-36-23-A

official receipt and billing

P-36-1-B to P-36-23-8

statement

P-36-1-C to P-36-23-C

17,238,121.77 cwrs were supported by SIR Form 2307 with electronic signature and revenues were supported only by billing statement and without official receipt but reported in the FY

P-27-1-A

2016 Income Tax Return

P-27-1-C

1 ,339,285. 71 189,972.91 79,547.57 929,527.46 182,250.00 426,742.80 135,370.20 413,203.20 2,491 '123. 78 200,892.86

Subtotal

p 192,111,594.26 I" 22,915,742.49 Transactions in foreign currency Declared revenues were properly supported by Official Receipts and billing statements

P-37 -1-A to P-37 -8-A

and the cwrs were supported

P-37-1-B to P-37-8-B by SIR Form 2307

P-37-1-C to P-37-8-C

25,078,551.19 3,472,639.21 Revenues were properly supported by Official Receipts but without billing statements and the cwrs were supported

P-38-1-A to P-38-2-A by SIR Form 2307

P-38-1-B to P-38-2-B

13,367,752.55 1,638,463.33 {!!

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

Claimed CWTs were supported by BIR Form 2307 and official receipt but revenue declared in BIR Form 2307 is more than the revenue in the official receipt. The revenue declared in the BIR Form 2307 is reported in the FY 2016

P-39-1-A

Income Tax Return

P-39-1-B

627,980.47 Claimed CWTs were supported

by BIR Form 2307 and

revenues were reported in the

P-40-1-A

FY 2016 Income Tax Return

P-40-2-A

1,221,319.25

Subtotal

,. 40,295,603.46 ,..

Unaccounted difference ,.

1.23 94,197.07 183,197.89 5,388,497.49

Total

,. 232,407,198.95 ,. 28,304,239.99 The ICPA noted that the following items in the above-mentioned breakdown were not properly substantiated, viz.: 68

Findings

Exhibit

Income Payment

CWT

Declared revenues were

P-31-1-A

I"

530,317.14 ,.

79,547.57 properly supported by Official

P-31-1-B

Receipts and Billing

P-31-1-C

Statements while CWTs were supported by BIR Form 2307 but dated outside the period of claim CWTs were supported only by

P-32-1-A to P-32-16-A

8,494,650.08 929,527.46 photocopied BIR Form 2307

P-32-1-B to P-32-16-B

while revenues were properly

P-32-1-C to P-32-16-C

supported by official receipts and billing statements CWTs were supported by BIR

P-33-1-A

1,215,000.00 182,250.00 Form 2307 but the payor's TIN

P-33-1-B

indicated in the BIR Form 2307

P-33-1-C

is incorrect

P-51-1

CWTs were supported by BIR

P-34-1-A to P-34-4-A

5,442,352.00 426,742.80 Form 2307 but the petitioner's

P-34-1-B to P-34-2-B

TIN is not indicated nor

P-34-4-B

incorrect

P-34-1-C to P-34-4-C

Declared revenues were

P-35-1-B to P-35-2-B

902,468.00 135,370.20 properly supported by official

P-35-1-C to P-35-2-C

receipts and billing statements but without supporting BIR

Form 2307

CWTs were supported by 2,754,688.00 413,203.20 duplicate CWT Certificates

(BIR Form 2307) and

inadvertently included in the FY

2016 Income Tax Return

Total

,.

19,339,475.22

I"

2,166,641.23

Anent

the income payment of P5,442,352.00 and its corresponding CWTs of P426,742.80 covered by CWT Certificates (BIR Form 2307) where petitioner's Tax Identification Number (TIN) is

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR not indicated or incorrect, further verification by the Court of the said CWT Certificates69 yielded the following:

Name of

Customer's

Exhibit

Date

Income

Tax

Customer

TIN

No.

Declared

Withheld

From

To Petitioner's TIN is incorrect but name and address match with 8/R Certificate of Registration

JG Summit

Petrochemical

003-676-

Corporation

075-000

P-34-1-A

15-0ct-15 15-0ct-15 470,640.00 70,596.00

JG Summit

Petrochemical

003-676-

Corporation

075-000

P-34-2-A

19-Apr-16

19-Apr-16

1,457,600.00 218,640.00

JG Summit

Petrochemical

003-676-

Corporation

075-000

P-34-3-A

29-Jun-16

29-Jun-16

517,112.00 77,566.80

Subtotal

~ 2,445,352.00 ~ 366,802.80 CWT Certificate does not indicate petitioner's TIN and address J.V. Angeles

Construction

000-282-

Corporation

265-000

P-34-4-A

18-Sep-15

18-Sep-15

2,997,000.00 59,940.00

Subtotal

~ 2,997,000.00 ~ 59,940.00

Total

~ 5,442,352.00 ~ 426,742.80 The Court finds that the withholding tax certificates which indicate petitioner's name and address, and the amount of CWTs withheld by the payor, albeit without petitioner's TIN, are complete in relevant details necessary to aid the Court in evaluating the subject refund claim. Petitioner's name and address appearing on said certificates may be cross-referenced with petitioner's BIR Certificate of Registration. 70 Therefore, even with an incorrect TIN, it can be reasonably inferred that the CWT Certificates pertain to petitioner as the same recipient of such income subjected to withholding tax because the name and address appearing on the CWT Certificates match with the details appearing on petitioner's SIR Certificate of Registration. Thus, it is proper to allow the CWT Certificates with reported income of P2,445,352.00 and corresponding CWTs of P366,802.80.

Considering the foregoing adjustments, the total CWTs disallowances amounts to P1, 799,838.59, computed below:

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

Findings

Income Payment

CWT

Disallowances made by ICPA f" 19,339,475.22 p 2,166,641.23 Less: Allowed by the Court upon verification 2,445,352.00 366,802.80

Total

p 16,894,123.22 f" 1 '799,838.59 The Court also notes the finding of the ICPA, that there are revenues recorded and reported in the FY 2015 ITR in the total amount of P49,023, 111.37 but the corresponding CWT Certificates were dated and received by petitioner in FY 2016. The breakdown of the revenues and corresponding CWTs is as follows: 71

Findings

Exhibits

Revenue per

CWT

Schedule of

CWT

Transactions in Philippine Peso

cwrs were properly supported by BIR

P-41-1-A to P-41-5-A

Form 2307 issued by the Petitioner's

P-26-8-A

Customers while revenues were properly

P-41-1-B to P-41-5-B

supported by Official Receipts and Billing

P-26-8-B

Statements

P-41-1-C to P-41-6-C

I" 4,339,286.40 p 646,180.46 cwrs were properly supported by SIR

P-42-1-A to P-42-23-

Form 2307 issued by the Petitioner's

A

Customers while revenues were properly

P-25-67-A

supported by Official Receipts but

P-26-11-A

without Billing Statements

P-26-9-A

P-42-1-B to P-42-24-

B

P-26-11-B

P-26-9-B

26,717,700.19 2,631,042.39 Claimed cwrs were properly supported

P-43-1-A to P-43-2-A

by BIR Form 2307 but without supporting

Official Receipts and Billing Statements

4,309,130.32 646,369.55 cwrs were supported by BIR Form

P-44-1-A

2307, billing statements and official

P-44-1-B

receipts but amount withheld per SIR

P-44-1-C

Form 2307 is more than claimed cwrs per official receipt 407,150.00 61,072.50 cwrs were not supported by SIR Form

P-45-1-B

2307 while revenues were supported by official receipt but without billing statement 103,840.00 10,384.00 Claimed cwrs were supported by BIR

P-46-1-A to P-46-4-A

Form 2307 with electronic signature

P-36-12-A

while revenues were supported only by

P-46-1-B to P-46-4-B

official receipt and without billing

P-36-12-B

statement 5,559, 160.71 811,384.11 cwrs were supported only by

P-47-1-A to P-47-2-A

photocopied BIR Form 2307

P-47-1-B to P-47-2-B

P-47-1-C

1 ,936,483.00 290,472.45

Subtotal

~ 43,372,750.62 1'"5,096,905.46

Transactions in Foreign Currency

CWfs were properly supported by BIR

P-48-1-A to P-48-2-A

Form 2307 issued by the Petitioner's

P-38-1-A to P-38-2-A

Customers while revenues were properly

P-48-1-B to P-48-4-B

P-38-1-B

I" 5,650,361.86 ~ 711,727.10

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR supported by Official Receipts but without Billing Statements

Subtotal

,. 5,650,361.86 ,. 711,727.10 Unaccounted difference ,.

(1.11)

Total

p 49,023,111.37 P5,808,632.56 The foregoing resulted to a discrepancy between gross sales subject to withholding tax per schedule of CWTs and sales per GL. Notwithstanding the timing difference, the ICPA found that the income was still recorded and reported by petitioner as part of its gross income, albeit during a different taxable period. In Commissioner of Internal Revenue vs. Univation Motor Philippines, lnc., 72 the Supreme Court elucidated that the delay in the receipt of CWT Certificates is not fatal as what is important is that the income per CWT Certificates were reported in the ITRs, albeit for prior years, VIZ.:

"It must be noted that while the income payments from which the CWTs which were declared in its return covered the years 2006, 2008, 2009 and 2010, there was nothing wrong with it as what is important is that the respondent complied with the third requisite, that is, the income which the taxes were withheld was inc I uded in the returns of the respondent. The CTA En Bane correctly appreciated the explanation of the independent CPA (I CPA) why the income payments from which the CWT amounting to P12,729,617.90 were withheld, were declared in its returns covering the years 2006, 2008, 2009 and 2010. In gist, the I CPA suggests that there were delays in collection of certain income payments to respondent. For one, certain sales made by respondent to its dealers in 2008 and 2009 were only paid in 2010. In other words, there were certain income payments which, although respondent expected to receive in 2006, 2008 and 2009, were only remitted to it in 2010. As concluded by the CTA En Bane, the delay in collection of certain income payments of respondent caused the timing difference between the actual reporting of the income by respondent and the actual withholding of the corresponding creditable income tax by respondent's customers. What is important is that the creditable withholding taxes corresponding to the related income in the respondent's books for CY's 2006, 2008 and 2009 were not yet claimed as income tax credits in respondent's annual ITRs corresponding to the said years. Hence, it is just proper that these income payments should form part of respondent's tax credit for 2010." (Boldfacing supplied) In this case, however, petitioner failed to present the AFS, GL, journal entries, reconciliation schedules, and other related documents

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR that would aid the Court in verifying whether the income of P49,023, 111.37 as declared in the CWT Certificates received by petitioner in 2016 was actually reported and declared as part of the gross income in the Annual ITR for FY 2015. Without such pieces of evidence, the Court is unable to properly trace whether the said amount was included in petitioner's AnnuaiiTR for FY 2015. As such, it is appropriate for the Court to disallow said CWT Certificates. Of the remaining CWT Certificates offered by petitioner in evidence, verification by the Court shows that the following CWT Certificates, in the total amount of P215,029.86, shall likewise be denied based on the following grounds:

Name of

Customer's

Exhibit I

Date

I

Income

Tax

Customer

TIN

No.

I

From

To

I

Declared

Withheld

No name of payor's authorized representative

Degremont-

008-642-

Philippine Branch

753-000

P-25-21-A

1-0ct-15

31-Dec-15

p 1,300,000.00 ,. 26,000.00

Subtotal

,.

1 300,000.00 ,. 26,000.00 Unreadable CWTs amount

FCF Minerals

238-154-

Corporation

069-000

P-25-26-A

1-May-16

31-May-16 ,.

905,246.00 ,. 135,786.90

Subtotal

,.

905,246.00 ,. 135,786.90 No income amount reported in CWT Certificate

Laguna AAA Water

218-595-

CoiJloration

528-000

P-25-151-A

12-Apr-16

12-Apr-16

p 783,540.00 ,.

7,835.40

Subtotal

,.

785 540.00 ,.

7 835.40 Different signature of payor's authorized representative

SN Aboitiz Power-

242-224- Maqat Inc.

593-000

P-26-10-A

1-Nov-15

30-Nov-15 ,.

155,608.00 ,. 22,749.31

SN Aboitiz Power-

242-224- Magat Inc.

593-000

P-30-3-A

1-Nov-15

30-Nov-15

151,055.00 22,658.25

Subtotal

,.

306,663.00 ,. 45 407.56

Total

,.

3,297,449.00 ,. 215,029.86 In summary, the total disallowances found by the ICPA and the Court amounts to P7,823,501.01, thus, leaving a balance of P26,289,374.54 on petitioner's refund claim, as follows:

Findinas

Amount

Petitioner's claim p 34,112,875.55

Less:

Disallowances made by ICPA, as adiusted p 1 '799,838.59 CWTs with revenue recorded and reported in FY 2015 Income Tax Return and collected in FY 2016 5,808,632.56 Disallowances upon further verification by the Court 215,029.86 p 7,823,501.01

Total Valid Claim

p 26.289.374.54

C1J

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. C/R

Third

requisite:

The income received was declared as part of the gross income The third requisite mandates petitioner to prove that the income payments that were subjected to CWTs were reported or declared as part of its gross income in its AnnuaiiTR for FY 2016. In the Report of the Court-commissioned ICPA/3 the latter traced the income payments appearing in each of the Certificates of Creditable Tax Withheld at Source (BIR Form No. 2307) to the Schedule of CWTs for FY 2016 prepared by petitionerJ4 The Schedule of CWTs was then compared with the sales per GL, 75 which showed a total variance of P76,474,533.97, as follows: 76

Period

Gross Sales Subject

Sales per General

Difference

Covered to Withholding Tax per

Ledger

Schedule

1"1 Quarter

p 46,292,022.44 p 71,023,019.44 p (24,730,997.00) 2nd Quarter 114,361,838.94 123,850,202.06 (9,488,363.12) 3'd Quarter 55,468,148.00 73,873,561.57 (18,405,413.57)

41" Quarter

65,308,300.94 89,158,061.22 (23,849,760.28)

Total

p 281,430,310.32 p 357,904,844.29 p (76,474,533.97) The ICPA was able to reconcile the difference in sales between the withholding taxes per schedule and per GL amounting to P76,474,533.97, as follows: 77

Description

Difference between gross sales subject to withholding tax per schedule against sales per general ledg_er

Reconciling Items

a. Revenue recorded and reported in FY

2015 Income Tax Return and

collected in FY 2016

b. Revenue not subjected to withholding tax by petitioner's clients

c. Foreign exchange difference per petitioner's books and cwr

Certificates

73 Exhibit "P-61 ".

74 Exhibit "P-16".

75 Exhibits "P-19-1" and "P-19-2".

76 Exhibit "P-61", ICPA Report, p. 5.

77 Exhibit "P-61", ICPA Report, p. 6.L'l

Reference (in

Amount

ICPA Report)

p (76,474,533.97)

Annex B-1 to B-8

p 49,023,111.37

Annex C

(126,347,038.18)

Annex A-14 to A-17

290,483.05

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR d. Petitioner's reimbursable expenses

Annex A-1

(506,876.00) recorded as part of revenue but was not sub,iected to withholding taxes

e. Petitioner's retention fees not Annex A-1, A-5 and (2,080,630.00) subjected to withholding_ taxes

A-9

f.

Revenue declared in the CWTs was

Annex A-1 and A-5

391,730.00 erroneous

g. Revenue reported in the FY 2016

Annex A-11

2, 754,688.00 general ledger that were inadvertently included twice in the revenue per schedule of CWT Unaccounted difference ~ (2.21) Total reconciling items p (76,474,533.97) Balance after reconciliation p - Further reconciliation by the ICPA shows that of the total revenue per GL of P357,904,844.29, the amount of P232,407, 198.95 represents the total revenue that were recorded, reported and collected in FY 2016 that were subjected to CWTs, as follows: 78

Reference

Tax Base

Tax Withheld

(in !CPA

Report)

Revenue per General Ledger

~ 357,904,844.29 p 28,304,239.99 Less: Revenue not yet subjected to (126,347,038.18) withholding tax by the petitioner's clients Total income recorded and

AnnexA

p 231,557,806.11 reported in 2016 and collected in 2016 Add: Foreign exchange difference

Annex A-14

290,483.05 per petitioner's books and to A-17

CWT Certificates

Less: Petitioner's reimbursable

Annex A-1

(506,876.00) expenses recorded as part of revenue but were not subjected by petitioner's customers to withholding taxes Less: Petitioner's retention fees not Annex A-1, (2,080,630.00) subjected to withholdinq taxes A-5 and A-9 Add: Revenue declared in the

Annex A-1

391,730.00 CWTs was erroneous and A-5 Add: Revenue reported in the FY

Annex A-11

2,754,688.00 2016 general ledger that were inadvertently included in the revenue per schedule of CWT Less: Unaccounted difference (2 21) Total revenue recorded, reported ~ 232,407,198.95 ~ 28,304,239.99 and collected in 2016 subjected by petitioner's customer to creditable withholding tax 7B Exhibit "P-61", !CPA Report, p. 9(:tt/

I

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

For FY 2016, petitioner reported in its Annual ITR the amount of P459,801 ,346.00 as net sales/revenues/receipts/fees. 79 Comparing the same to the total revenues per GL in the amount of P357,904,844.29, there is a variance of P1 01,896,501.71, reconciled by the ICPA below:

Amount

Revenue per Annual Income Tax Return for FY 2016 P459,801 ,346.00 **Revenue subjected to CWTs per General Ledger

Fees (528-71-0-114001) (Exhibit P-19-1)

P350,051 ,657.64

Fees (528-55-0-114001) (Exhibit P-19-2)

7,853,186.65 357,904,844.29

Difference

101 ,896,501. 71 Sales not subjected to CWT

1. International Sales: (53,979,562.00)

2. Unbilled work: (51 ,302,371.00)

3. International Sales subjected to Foreign Taxes 3,385,432.00 {101 ,896,501.001 Unaccounted difference P0.71 However, the difference of P1 01,896,501.71 between the amount of revenues reflected in the Annual ITR for FY 2016 (P459,801 ,346.00) and the GL (P357,904,844.29) is not supported by any evidence on record. Perusal of the Judicial Affidavits of Ms. Katrina S. Maninang, petitioner's tax manager,80 and the ICPA81 shows that the said reconciling items were not discussed nor explained. Moreover, no supporting documentary evidence as to the supposed "International Sales", "Unbilled work", and "International Sales subjected to Foreign Taxes" were submitted to corroborate such reconciliation made by the ICPA. Thus, the Court cannot reasonably verify if the amounts recorded in the GL would tally with the amounts reported in the Annual ITR for FY 2016.

Sans any supporting evidence, the veracity of the amounts reflected in the GL vis-a-vis those declared and reported in the Annual ITR for FY 2016 becomes doubtful. Such doubt is compounded when the amount of revenue reported in petitioner's AFS does not also match with the amount of revenue declared in the Annual ITR for FY 2016, and for which petitioner was likewise unable to explain, as follows:

Service Fees revenue per AFS Sale of Services er Annual ITR Unaccounted difference 79 Exhibit "P-3", CTA Docket vol. I, pp. 477-478. 80 Exhibit "P-13", CTA Docket vol. I, pp.11 0-122. 81 Exhibit "P-60", CTA Docket vol. I, pp. 329-341""

Amount

P463, 186,778.00 459,801,346.00 p 3,385,432.00

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

Considering that the amount of revenue reported in the GL of petitioner does not tally with those reported in the AFS and Annual ITR for FY 2016, the Court finds that petitioner failed to comply with the third requisite. Petitioner's non-compliance therewith is fatal to its claim.

Tax refunds, being in the nature of tax exemptions, are construed in strictissimi juris against the taxpayer and liberally in favor of the government.82 The burden in claiming tax refund rests upon the taxpayer which petitioner has failed to discharge. For failing to prove its entitlement to a tax refund, petitioner's claim must perforce be denied.

WHEREFORE, premises considered, the present Petition for Review is DENIED for lack of merit.

Presiding Justice

/CONCUR:

' /'~7· CAtHERINE T. MANAHAN

Associate Justice

GHD Pty Ltd. (Formerly Gutteridge Haskins & Davey Pty Ltd.) vs. CIR

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, 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.

Presiding Justice