This is a publication about developments in Philippine taxation. The contents usually include latest Republic Acts, Bureau of Internal Revenue issuances, Customs regulations, Court decisions, BSP circulars, SEC circulars, Department of Justice opinions and Executive Orders relevant to Tax practice.
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Club membership fees, assessment dues are not subject to income tax and VAT
Membership fees and assessment dues collected by recreational clubs from their members as an inherent consequence of their membership and intended for the maintenance, preservation, and upkeep of the clubs’ general operations and facilities are not subject to income tax.
They are likewise not subject to VAT because in collecting such fees, the club is not selling its services to its members. Conversely, in paying such fees, the members are not purchasing services from the club.
(GR No. 228539, promulgated 26 June 2019)
When proof of remittance of withholding taxes is not required
A taxpayer claiming a refund of or issuance of tax credit certificate for unutilized CWT is not required to prove actual remittance of CWT by withholding agents.
The taxpayer-claimant only needs to prove the fact of withholding by presenting the BIR Form No. 2307 which shows the income payments made by the withholding agent, and the amount of the tax deducted and withheld therefrom. Since the BIR Form No. 2307 is duly signed and prepared under the penalties of perjury, the figures appearing therein are presumed to be true and correct, and may be taken at face value.
(CTA EB No. 1789, promulgated 5 July 2019)
The exercise of governmental functions are not subject to VAT
The sale of generating assets by the Power Sector Assets and Liabilities Management Corporation (PSALM) is not subject to VAT because such sale was made pursuant to the mandate of PSALM under the Republic Act No. 9136[1] to privatize assets of the National Power Corporation (NPC). In other words, the sale is not in pursuit of a commercial or economic activity, but a governmental function mandated by law.
Gross receipts from the lease of NPC assets, and collections of certain income and receivables are also not subject to VAT because these are within the powers of PSALM necessary to discharge its legal mandate and are undertaken in the exercise of governmental functions.
(GR No. 226556, promulgated 3 June 2019)
Transfer of land for shares in a new corporation is not subject to VAT
A real estate company entered into a pre-incorporation subscription agreement. In consideration for its subscription of shares in the new corporation, the real estate company transferred two parcels of land instead of paying cash.
According to the CTA, the transfer of land is not a deemed sale transaction subject to VAT because, although the transferor was engaged in the real estate business, there was no proof or hint that the parcels of land were properties held for sale or originally intended for sale or for use in the ordinary course of business.
Further, since the transaction is in the nature of a pre-incorporation subscription pursuant to Sections 61 and 62 of the Corporation Code, the transfer is not a disposition or exchange in the ordinary course of trade or business subject to VAT.
(CTA EB No. 1776, promulgated 5 July 2019)
New documentary evidence may be submitted to the CTA
In deficiency tax assessments, the failure of the taxpayer to submit documents at the administrative (i.e., BIR) level is not fatal to the petition for review at the judicial (i.e., CTA) level because the case is litigated anew and decided based on what will be presented and formally offered by the parties during the trial.
(CTA EB No. 1881, promulgated 5 July 2019)
How to prove that a supplier is a non-regular supplier
A top ten thousand (10,000) private corporation is required to withhold a 2% EWT from its purchase of services from local/resident suppliers not otherwise covered by specific EWT rates.
However, one-time purchases below PHP10,000.00 from non-regular suppliers are not subject to deficiency 2% EWT, provided, that such fact is supported by the relevant Semestral Lists of Regular Suppliers.
(CTA Case No. 8141, promulgated 26 June 2019)
Authority of OIC-Assistant Regional Director to sign and issue an LOA
Under the Tax Code and RMO No. 43-1990, only the Commissioner, Deputy Commissioners and Regional Directors are authorized to sign and issue LOAs. An OIC-Assistant Regional Director is not included.
Hence, a deficiency tax assessment arising from a tax investigation covered by a LOA that was signed and issued by an OIC-Assistant Regional Director without delegated authority is void.
The subsequent appointment of said OIC as a Regional Director does not cure the defect because the validity of the LOA should be reckoned from its date of issuance.
(CTA Case No. 9387, promulgated 28 June 2019)
Documents supporting the deductibility of travel and transportation expenses
In order to be deductible, the taxpayer should establish that the expense was incurred in connection with its business.
Expenses for foreign travels can be proven to be business-related if the taxpayer is able to submit documents such as certificates of attendance to conferences abroad or copies of minutes of meetings held abroad.
On the other hand, transportation expenses can be proven as business-related if corroborated by expense reports accompanied by receipts, invoices, tickets, and a document indicating the kind of work completed by the employee and signed off by the taxpayer’s client.
(CTA Case No. 8141, promulgated 26 June 2019)
Clarifying issues and concerns in the estate tax amnesty implementation
The BIR issued clarifications regarding the estate tax amnesty. These include the following:
(Revenue Memorandum Circular No. 68-2019, issued 5 July 2019)
Availability of newly enhanced withholding tax certificates
The following enhanced BIR Forms are already available:
BIR Form No. |
Description |
2306 |
Certificate of Final Tax Withheld at Source |
2307 |
Certificate of Creditable Tax Withheld at Source |
(Revenue Memorandum Order No. 74-2019, issued 24 July 2019)
Availability of BIR Form Nos. 0620 and 0621
All concerned banks are informed that BIR Form No. 0620 (Monthly Remittance of Taxes Withheld on the Amount Withdrawn from the Decedent’s Deposit Account) and BIR Form No. 0621 (Quarterly Remittance of Taxes Withheld on the Amount Withdrawn from the Decedent’s Deposit Account) are not yet available in pre-printed form, in the eFPS and in the eBIRForms. However, these can be downloaded from the BIR website under BIR Forms-Payment/Remittance Form section.
Banks availing the Philippine Payment Settlement System are advised to manually file the above forms and remit the corresponding tax until further notice.
(Revenue Memorandum Order No. 76-2019, issued 31 July 2019)
Availability of newly revised annual information returns
All withholding agents are informed of the availability of the following revised BIR Forms (January 2018 ENCS):
BIR Form No. |
Description |
1604-C |
Annual Information Return of Income Taxes Withheld on Compensation |
1604-E |
Annual Information Return of Creditable Income Taxes Withheld (Expanded)/ Income Payments Exempt from Withholding Tax |
1604-F |
Annual Information Return of Income Payments Subjected to Final Withholding Taxes |
The revised manual returns are available in the BIR website under the BIR Forms-Payment/Remittance Forms section. However, they are not yet available in the eFPS and eBIRForms.
(Revenue Memorandum Order No. 73-2019, issued 24 July 2019)
Lifting of collection remedies exercised by the BIR
A Warrant of Garnishment, Notice of Tax Lien, Notice of Tax Levy and Notice of Encumbrance may be extinguished under any of the following instances:
However, the taxpayer should request for the issuance of a Notice of Lifting and comply with the procedure and requirements.
(Revenue Memorandum Order No. 41-2019, issued 31 July 2019)
Prescribing the newly revised BIR Form No. 1914 for tax refund/credit applications
Taxpayers applying for tax credits or refunds should accomplish and file the newly revised BIR Form No. 1914 (Application for Tax Credits/Refunds) April 2019 (ENCS).
(Revenue Memorandum Order No. 75-2019, issued 29 July 2019)
Procedures for serving assessment notices to taxpayers
The BIR prescribed guidelines and procedures when serving assessment notices such as the Preliminary Assessment Notice, Final Assessment Notice/Formal Letter of Demand and Final Decision on Disputed Assessment (FDDA).
The guidelines and procedures include the following:
(Revenue Memorandum Order No. 40-2019, issued 30 July 2019)
Policies, guidelines and procedures on employee registration
The amended policies and guidelines on employee registration include the following:
(Revenue Memorandum Order No. 37-2019, issued 23 July 2019)
Clarifying the nature, character and tax treatment of exempt organizations
The BIR clarified the nature, character and tax treatment of organizations exempt from income tax under Section 30 of the Tax Code. However, the clarifications do not cover the processing of CTEs of non-stock, non-profit educational institutions.
The clarifications include the following:
(Revenue Memorandum Order No. 38-2019, issued 24 July 2019)
Civil remedies for the collection of accounts receivable/delinquent accounts
The BIR offices responsible for the enforcement of collection remedies shall immediately pursue the civil remedies for collection (e.g., issuance Warrant of Distraint and/or Levy) upon receipt of the “Form 40-Collectible” reports relative to the following:
Thus, Preliminary Collection Letters and Final Notices Before Seizure shall no longer be sent to delinquent taxpayers before collection remedies are pursued.
(Revenue Memorandum Order No. 35-2019, issued 18 July 2019)
Modification of ATCs for certain percentage taxes
The following Alphanumeric Tax Codes (ATCs) for percentage taxes under RA No. 10001 have been modified:
Existing (per ATC Handbook) |
New |
|||
ATC |
Description |
Tax Rate |
BIR Form No. |
Tax Rate |
PT120 |
Life insurance premium |
5% |
2551M/ 2551Q |
2% |
PT130 |
Agents of Foreign Insurance Companies
Insurance agents |
10% |
4% |
(Revenue Memorandum Order No. 36-2019, issued 18 July 2019)
Signatory of certificate of tax exemption for qualified retirement plans
The authority to act on and approve Qualified Reasonable Benefit Retirement Plans, and issue the appropriate CTE has been delegated to Assistant Commissioner Larry M. Barcelo, Legal Service.
(Revenue Delegation Authority Order No. 3-2019, dated 24 July 2019)
Clarifying the transitory provisions and requirements for VAT refund claims
The BIR clarified the transitory provisions and requirements in Annex A.1 of RMC No. 47-2019 as follows:
(BIR Tax Advisory, dated 28 June 2019)
Non-acceptance of BIR Form Nos. 1901 and 1903
All Authorized Agent Banks (AABs) are advised not to accept the following BIR Forms:
Taxpayers should use the BIR Form No. 0605 (Payment Form) in the business registration fee made thru AABs.
In encoding payments using BIR Form No. 0605 in the Limited Bank Data Entry System, AABs should select BIR Form 0605 in the Form Code List of Values (LOVs) and select the appropriate tax type code LOVs as indicated in the BIR Form No. 0605 under the tax type field.
(Bank Bulletin No. 2019-13, dated 17 June 2019)
Issuance of Pre-Lodgement Control Orders (PLCO) and Alert Orders (AO)
The CoC issued orders regarding the issuance of a PLCO and an AO from the entry of imported goods in customs jurisdiction as well as in the exportation of goods. The orders include the following:
(Customs Administrative Order No. 7-2019, filed 7 June 2019)
Guidelines and procedure for the monitoring and control of containers
The CoC issued guidelines and procedure for the monitoring and control of the movement of all types, categories or classification of containers at the seaports. The guidelines provide for the following:
(Customs Administrative Order No. 8-2019, filed 11 June 2019)
Supervision and regulation of certain persons transacting with the BOC
The following ‘Third Parties' shall be supervised and regulated by the BOC, in relation to the import, export, movement, storage and clearance of goods for, and in behalf of, another person:
The foregoing shall be registered with the BOC if they submit a Permit to Operate, and apply for registration with the Account Management Office and submit the required documents. The registration may be cancelled or revoked on certain grounds.
Third Parties are obligated to submit true and authentic documents, cooperate in customs investigations, report violations, provide access to records, and comply with customs and other laws, rules and regulations.
(Customs Administrative Order No. 6-2019, filed 7 June 2019)
Cargo clearance procedure for the movement of goods within the BIMP-EAGA
The CoC issued implementing guidelines for the special cargo clearance procedure for Qualified Enterprises in the import and export of goods within the Brunei, Indonesia, Malaysia, Philippines – East Asia Growth Area (BIMP-EAGA).
The implementing guidelines provide for, among others, registration of Qualified Enterprises, responsibilities of the District/Subport collectors, cargo clearance process for imported goods, export processing, One Stop Shop Office for BIMP-EAGA, and cross-border transport of local and foreign currencies. These guidelines took effect on 15 July 2019.
(Customs Memorandum Order No. 32-2019, filed 8 July 2019)
Revised Guidelines for Accreditation of Importers and Customs Brokers
The Revised Guidelines for Accreditation of Importers and Customs Brokers were amended with respect to the documentary requirements for accreditation of new importers, renewal of importer’s application, new customs broker, and renewal of customs broker application. The amendments took effect on 8 July 2019.
(Customs Memorandum Order No. 31-2019, filed 5 July 2019)
Requiring the Certificate of Accreditation as Declarant
The CoC issued interim guidelines for the accreditation and registration of persons, other than Customs Brokers, entitled to act as Declarant and sign the goods declaration for consumption, warehousing or transit.
The interim guidelines provide for the following:
(Customs Memorandum Order No. 34-2019, dated 9 July 2019)
Implementation of international agreements between the ASEAN and China
The Protocol to Amend the Framework Agreement on Comprehensive Economic Co-Operation and certain Agreements between the ASEAN and the People’s Republic of China, the ASEAN-China Free Trade Agreement Rules of Origin upgraded protocol shall be implemented on 1 August 2019. There will be a transition period of two (2) weeks from the date of implementation wherein Preferential Tariff shall be granted for importers submitting the Old CO Form E.
(Customs Memorandum Circular No. 176-2019, dated 18 July 2019)
Local taxes, fees and charges on individual professionals
The Department of Finance issued guidelines governing the taxing powers of provinces, cities and municipalities (collectively, LGUs) relative to the practice of profession.
The following taxes shall be paid by an individual legally authorized to practice his/her profession:
(Department of Finance Local Finance Circular No. 1-2019, dated 12 June 2019)
Implementing the Fuel Marking Program
The Department of Finance, upon recommendation of the BIR and the BOC, issued guidelines implementing the mandatory testing and marking of petroleum products under the Fuel Marking Program. Said guidelines provide for the following:
(Department of Finance Joint Circular No. 1-2019, dated 5 July 2019)
Rules on Digital Asset Exchange
Exchanges, broker-dealers, investment houses, the investing public and other interested parties are invited by the SEC to submit their views, comments and inputs to the draft Rules on Digital Asset Exchange posted on the SEC website.
Comments may be sent to the Market and Securities Regulation Department, G/F Secretariat Bldg., PICC Complex, Roxas Blvd., Pasay City c/o Ms. Jessa Patilleros and Ms. Varelle Vargas, or sent via email to jfbpatilleros@sec.gov.ph and vcvargas@sec.gov.ph not later than 14 August 2019.
(SEC Market and Securities Regulation Department Notice, posted 15 July 2019)
Guidelines on the number and qualifications of incorporators
The SEC issued guidelines regarding incorporators of domestic corporations under the Revised Corporation Code. The salient provisions include:
(SEC Memorandum Circular No. 16-2019, dated 30 July 2019)
Research Report under the ASEAN Capital Market Professional Mobility Framework
Broker-dealers, investment houses, the investing public and other interested parties are invited by the SEC to submit their views, comments and inputs to the draft Guidelines on the Implementation of Cross-Border Publication of Research Report Under the ASEAN Capital Market Professional Mobility Framework posted on the SEC website.
Comments may be sent to the Market and Securities Regulation Department, G/F Secretariat Bldg., PICC Complex, Roxas Blvd., Pasay City c/o Ms. Melita Pasagui and Ms. Lea Avellanosa or sent via email to mdpasagui@sec.gov.ph and jmavellanosa@sec.gov.ph not later than 16 July 2019.
(SEC Market and Securities Regulation Department Notice, posted 5 July 2019)
Beneficial ownership information in the General Information Sheet (GIS)
The SEC issued amended rules regarding the requirement for stock and non-stock corporations to disclose beneficial ownership in the GIS. Here are the salient provisions:
Stock Corporations |
http://www.sec.gov.ph/wp-content/uploads/2019/09/2019Form_RevGIS_Stock_updated.xlsx |
Non-Stock Corporations |
http://www.sec.gov.ph/wp-content/uploads/2019/09/2019Form_RevGIS_NonStock_updated.xlsx |
(SEC Memorandum Circular No. 15-2019, published 27 July 2019; and SEC Notice, posted 26 July 2019)
One-Stop-Shop accreditation of external auditors
The SEC issued proposed Guidelines on the Adoption of a Centralized Framework for Accreditation/Selection of External Auditors. These aim to streamline the accreditation/selection process and promote the ease of doing business.
All interested parties are invited to submit their comments thereon not later than 5 August 2019 to the Office of the General Accountant at the 3rd Floor, Secretariat Bldg., PICC, or via electronic mail to secoga@sec.gov.ph.
(SEC Notice, posted 19 July 2019)
Foreign ownership of a corporation engaged in digital media activities
Mass media has been defined as “any medium of communication designed to reach a mass of people” which includes the use of “electronic media such as but not limited to internet”. The ownership and management of mass media is limited to Filipino citizens or entities wholly owned and managed by Filipino citizens.
According to the SEC, if the Articles of Incorporation of a corporation do not qualify or limit the business purpose of engaging in “digital media”, or do not provide a specific type of “digital media” to be marketed, the “digital media” activities of said corporation will still fall within the ambit of mass media – notwithstanding the insertion of the excluding phrase “except mass media.” In such case, no foreign ownership is allowed in the corporation.
(SEC-OGC Opinion No. 19-27, dated 22 July 2019)
Clarifying the penalties on late filing of applications for ITH incentive
All new and expanding enterprises, registered with the BOI that were issued Certificates of Entitlement and that claimed income tax exemptions in their ITRs, are required to file applications for ITH incentive with the BOI. Applications must be filed within thirty (30) days from the date of filing of the annual ITR with the BIR, or from the last day prescribed by law for the ITR filing, whichever comes later.
Late applications for ITH incentive shall be penalized as follows:
Late filing |
Penalty |
If filed within the 31st and 180th day from the date of annual ITR filing, or from the last day prescribed by law for the ITR filing, whichever comes later |
Amount of ITH x 1% (but not less than PHP500.00 or more than PHP2m |
After the 180th day from the date of annual ITR filing, or from the last day prescribed by law for the ITR filing, whichever comes later |
Forfeiture of the ITH for the taxable year |
(Board of Investments Memorandum Circular No. 2019-2, dated 24 May 2019)
Extension of zero percent duty effective until 6 July 2019
Importations of capital equipment, spare parts and accessories classified under the CMTA shall be subject to the zero percent duty if:
Within five (5) years from the date of importation, the BOI-registered enterprise is not allowed to sell, transfer or dispose the imported equipment, parts and accessories without prior BOI approval. Otherwise, penalties will be imposed.
The zero percent duty takes effect immediately after complete publication of Executive Order (EO) No. 85 in a newspaper of general circulation, and shall be valid for three (3) years or upon amendment of EO No. 226, whichever comes earlier.
(Executive Order No. 85, dated 19 July 2019)
Strengthening, promotion and development of startups
Republic Act No. 11337, otherwise known as the “Innovative Startup Act”, has been enacted to provide benefits and programs to strengthen, promote and develop the Philippine startup ecosystem. It provides for the following, among others:
(Republic Act No. 11337, approved 26 April 2019)
Sustaining modern agriculture and food security
The “Sagip Saka Act” has been enacted to establish the Farmers and Fisherfolk Enterprise Development Program. This Program refers to the comprehensive set of objectives, targets, and holistic approach in promoting the establishment of enterprises involving agricultural and fishery products.
It provides the following tax incentives and exemptions:
(Republic Act No. 11321, approved 17 April 2019)
Lifting the moratorium on automated teller machine fees
The Monetary Board lifted the moratorium on ATM fees subject to the following conditions:
(Bangko Sentral ng Pilipinas Memorandum No. M-2019-20 dated 19 July 2019)
Ease of Doing Business and Efficient Government Service Delivery
The Anti-Red Tape Authority with the Civil Service Commission and the Department of Trade and Industry, in coordination with various government departments and agencies, promulgated the implementing rules and regulations (IRR) for the Ease of Doing Business and Efficient Government Service Delivery Act of 2018.[1]
The IRR provides for the following:
(CSC, ARTA, DTI Joint Memorandum Circular No. 2019-001, published 20 July 2019)
Requirements for the merger or consolidation of insurance companies
Insurance companies must secure the favorable recommendation of the Insurance Commissioner before submitting articles of merger or consolidation with the SEC. To secure said recommendation, the following must be submitted with respect to the constituent corporations:
(Insurance Commission Circular Letter No. 2019-34, dated 18 July 2019)
Conservatorship of Health Maintenance Organizations (HMOs)
The Insurance Commissioner issued Guidelines for the Conservatorship of HMOs and Appointment of Conservators. The Guidelines provide for:
(Insurance Commission Circular Letter No. 2019-35, dated 18 July 2019)
Amended rules regarding the number of independent directors
The Board of Directors of insurance companies, insurance and reinsurance brokers, mutual benefit associations, pre-need companies and health maintenance organizations shall have independent directors constituting at least twenty percent (20%) of such Board, consistent with the Revised Corporation Code. The original requirement was two (2) independent directors or 20% of the Board, whichever was higher.
(Insurance Commission Circular Letter No. 2019-36, dated 23 July 2019)
Mandatory submission of TINs to the Bureau of Immigration (BI)
All applicants for the following visas must submit a copy of their TIN cards or any proof of TIN to the BI:
The BI shall include the TIN requirement in all consolidated general application forms and checklists of documentary requirements for work-related visas and permits.
(Bureau of Immigration Operations Order No. JHM-2019-9, dated 27 June 2019)
Implementing rules on Special Work Permits and Provisional Work Permits
The Bureau of Immigration issued implementing rules regarding the issuance of Special Work Permits (SWPs) and Provisional Work Permits (PWPs). The rules provide for the following:
(Bureau of Immigration Operations Order No. JHM-2019-8, dated 27 June 2019)