RR 12-2013 on Mandatory Withholding in Philippines

Bureau of Internal Revenue (BIR) issued Revenue Regulations No. 12-2013 dated July 12, 2013 (RR No. 12-2013) amending Section 2.85.5 of Revenue Regulations No. 2-98 (RR No.2-98), as amended, relative to the requirements for deductibility of certain income payments.

Under RR No. 12-2013, no deduction shall be allowed on income payments if it is shown that the applicable withholding taxes required by  the rules had not been withheld. No deduction will also be allowed even if during tax assessment on deficiency withholding taxes for alleged failure to withhold, the taxpayer paid the withholding taxes.

In effect RR No. 12-2013 makes it mandatory for taxpayers to withhold on expenses required to be withheld for purposes of expense deduction for income tax purposes in the Philippines. For easy reference, please refer below to the copy of Revenue Regulations No. 12-2013 from the BIR website.

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RR No. 9-2013 on Tax Compromise Fee in Philippines

The Bureau of Internal Revenue (BIR) issued Revenue Regulations No. 9-2013 dated May 10, 2013 (RR No. 9-2013) amending Revenue Regulations No. 30-2002 (RR No. 30-2002) relative to the amount of compromise payment of deficiency internal revenue taxes.

In the past under RR No. 30-2002, the rule was to apply for compromise of deficiency taxes under any of the following and upon approval, the compromise amount shall then be paid:

• Minimum amount of 40% of basic tax due based on doubtful validity; or
• Minimum amount of 10% of basic tax due based on financial incapacity.

Under RR No. 9-2013, the compromise offer shall be paid by the taxpayer upon filing of the application for compromise settlement and the application for compromise shall not be processed unless the compromise amount is paid. In case of disapproval of the application, the amount paid shall be deducted from the total outstanding tax liabilities.

Please see below Revenue Regulations No. 9-2013 for easy reference.

 

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BIR RR No. 1-2013 mandated EFPS of Government Agencies

REVENUE REGULATIONS NO. 1-2013 (RR No. 1-2013) issued on January 23, 2013 further expanded the coverage of taxpayers required to file tax returns and pay taxes through the Electronic Filing and Payment System (eFPS) to include National Government Agencies (NGAs) mandatorily required to use the Electronic Tax Remittance Advice (eTRA).

Accordingly, the following taxpayers are already mandated to make use of the eFPS:

a. Large Taxpayers duly notified by the Bureau of Internal Revenue (BIR);

b. Top 20,000 Private Corporations duly notified by the BIR;

c. Top 5,000 Individual Taxpayers duly notified by the BIR;

d. Taxpayers who wishes to enter into contract with government offices;

e. Corporations with paid-up capital stock of Ten Million Pesos;

f. PEZA-registered entities and those located within Special Economic Zones; and

g. Government Offices, in so far as remittance of withheld VAT and business tax is

concerned.

RR No. 1-2013 is issued to further regulate the electronic filing of Tax Remittance Advice (TRA) of the National Government Agencies (NGAs) through the Electronic Tax Remittance Advice (eTRA), a sub-system of the eFPS. 

• The Bureau of Internal Revenue (BIR) shall issue a Notification Letter to all Government Agencies, including their branches and extension offices located nationwide which have their own disbursement functions to inform them about the mandatory requirements. For the purpose, the Head Office of the National Government Agency shall provide the list of its branches/ field or extension offices which have their own reimbursement function.
• Those NGAs notified shall enroll with the eFPS facility and enroll with the Authorized Agent Bank.
• Upon successful enrollment, file and pay taxes through the eFPS.

As to other taxpayers not listed above, they may register for electronic filing and payment system at their option. Please refer below for the copy of RR No. 1-2013 for easy reference.

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New Requirement for ALL VAT-registered taxpayers

Revenue Regulations No. 1-2012 dated December 14, 2012 and effective January 1, 2012 amended Section4.114-3 and (e)(7) of Revenue Regulations No. 16-2005 now requiring ALL VAT-registered taxpayers to submit the following:

a. Quarterly Summary List of Sales, and,
b. Quarterly Summary List of Purchases.

The said summary list of sales and purchases shall be submitted through Compact Disk Reader (CDR). This is required to be submitted not later than 25th day of the month following the close of the quarter. Failure to file the same is subject to penalty of P1,000 for each such failure, unless such failure is due to reasonable cause and not to willful neglect. For the purpose, failure to report each buyer or supplier is a single act or omission punishable but not to exceed P25,000 for the taxable year.


Comments:

This requirements used to be required only for those with sales exceeding P2,500 in a quarter and those with purchases exceeding P1,500,00 in a quarter. With the advent of the Letter Notice and Third-Party matching of the sales and purchases, tax authorities may have found it hard to verify sales and purchases of small and medium entrepreneurs. Thus, this new requirement to patch up the loophole.

Notably, this new requirement is aimed at developing a more reliant database for counter checking reciprocal sales and purchases accounts of buyers and sellers. Those attempting to under state its sales in at risk of discovery as its VAT-registered buyers will point at is as seller so tax authorities will ultimately discover its understatement. Vice-versa, the same concept applies to those buyers attempting to understate its purchases.

Read the FULL TEXT of the Regulations HERE.

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Penalty for failure to segreggate VAT

Under Revenue Regulations No. 18-2011 dated September 21, 2011, VAT-registered taxpayers who shall fail to separate the value-added tax (VAT) component in the sales invoice (for goods), or official receipts (for services) shall be penalized upon conviction as follows:

a. Fine of not less than P1,000 but not more than P50,000, and,
b. Suffer imprisonment of not less than two (2) years but not more than ten (10) years.


Comment:

This is not actually a new requirement to separate the VAT component in the invoice or receipt for transparency purposes, but only to penalize those who do not comply the same. Problem may arise if the seller does not indicate the VAT passed on because if a VAT receipt/invoice is issued, it presupposes that a VAT is imposed so the tendency of the business buyer is to divide by 112% and multiply to get the 12% VAT. As such, in mixed transactions where there are non-VATable sales, the buyer would claim VAT where there is none and the government will be deprived.

With the VAT specifically indicated in the VAT-registered invoice/receipt, the business buyer could easily determine how much input VAT was passed on and will rightfully claim what is allowed.

I encourage VAT-registered taxpayers to simply comply and separate the VAT component. Why waste your hard-earned money in penalties? Notably, the penalty imposed in the regulation is on every invoice/receipt issued.



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Income Taxation of Proprietary Educational Institutions

For tax income tax purposes, educational institutions are classified as follows:

• Proprietary educational institution;
• Non-stock, non-profit educational institution; or,
  
• Government educational institution.

In this Article, let us uncover how a proprietary educational institution is being subjected to income tax.

Definition

Under the Tax Code, 'proprietary educational institution' is any private school maintained and administered by private individuals or groups with an issued permit to operate from the Department of Education, Culture and Sports (DECS), or the Commission on Higher Education (CHED), or the Technical Education and Skills Development Authority (TESDA), as the case may be, in accordance with existing laws and regulations.

Income tax rates

As a rule, it is subject to a special income tax rate of ten percent (10%) on their taxable income except on certain passive income. Notably, this is much lower than the regular corporate income tax rate of 30% of taxable net income. However, they must dedicate their operations to providing educational services because if they does not, then, they will cease to enjoy the benefit of 10%. If the gross income from unrelated trade, business or other activity exceeds fifty percent (50%) of the total gross income derived from all sources, they shall be taxed at 30% on the entire taxable income. 'Unrelated trade, business or other activity' means any trade, business or other activity, the conduct of which is not substantially related to the exercise or performance by such educational institution of its primary purpose or function.

Allowable deductions

It is allowed to claim from its gross income, allowable deductions in like manner as an ordinary taxpayer engaged in trade or business. In addition to the expenses allowable as deductions, it may at its option elect either:

(a) to deduct expenditures otherwise considered as capital outlays of depreciable assets incurred during the taxable year for the expansion of school facilities, or

(b) to deduct allowance for depreciation thereof.

In other words, capital outlays which would have been normally considered as an asset subject to depreciation maybe claimed by proprietary educational institutions as an outright deduction from its gross income.

Passive income

Finally, passive income of proprietary educational institutions is taxed in the same manner as ordinary corporations. Examples of passive income are interest income from Philippine bank deposits and royalties.

Resources:

Tax Code of the Philippines

• Section 27(B)

• Section 34 (A)(2)

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BIR Tax Agent Practitioner (TAP) Accreditation

Tax practitioner/Agent – The following shall be deemed to be in tax practice and required to apply for accreditation

• those who are engaged in the regular preparation, certification, audit and filing of tax returns, information returns and other statements or reports required by the Code or Regulations;
• those who are engaged in the regular preparation requests for rulings, requests for reinvestigations, protests, requests for refunds or tax credit certificates, compromise settlement and/or abatement of tax liabilities, and other official papers and correspondence with the Bureau of Internal Revenue (BIR), and other similar related activities; or
• those who regularly appears in meetings, conferences, or hearings before any office of the Bureau of Internal Revenue officially in behalf of the taxpayer or client in all matters relating to client’s rights, privileges, or liabilities under the laws or regulations administered by the Bureau of Internal Revenue. (Section 2(e), Revenue Regulations No. 11-2006)

Only those Tax Agents/Practitioners, Partners or officers of General Professional Partnerships, or Officers or Directors of corporate entities engaged in tax practice who have been issued Certificate of Accreditation or ID card shall be allowed to represent a taxpayer or transact business with the Bureau of Internal Revenue in representation of a taxpayer for the purposes defined in Revenue Regulations NO. 11-2006. The BIR can refuse to transact official business with tax practitioners who are not accredited and shall require that certain official documents filed with the BIR on behalf of the taxpayers shall bear the TIN number and accreditation details. (Section 9, Revenue Regulations No. 11-2006)

Who are required to register:

a. Individual tax practitioners

b. Partners of GPPs engaged in tax practice;

c. GPPs engaged in tax practice, accounting, or auditing;

d. Officers or authorized representatives of incorporated business entities engaged in accounting, auditing or tax consultancies.

Application for accreditation of practitioners who are duly accredited by the BOA and SEC, as evidenced by a copy of the BOA Certificate of Registration and SEC Certificate of Accreditation shall, upon payment of the processing fee, be automatically issued a BIR Certificate of Accreditation by the RNAB (Revenue National Accreditation Board)

Related BIR Issuances:

• Revenue Regulations No. 15-99;
• Revenue Regulations No. 11-2006 superseding RR 15-99 - Accreditation requirements
• Revenue Regulations No. 4-2010 – CPE requirements
• Revenue Memorandum Order No. 29-2010 – CPE guidelines

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Change in Accounting Period under RR No. 3-11

Revenue Regulations No. 3-2011 dated March 7, 2011 - "Regulations Providing for Policies, Guidelines and Procedures on the Application for Change in Accounting Period under Section 46 of the National Internal Revenue Code (NIRC) of 1997, as amended"

Under Section 46 of the Tax Code, as amended, it provides and hereunder quoted:

SEC. 46. Change of Accounting Period. If a taxpayer, other than an individual, changes his accounting period from fiscal year to calendar year, from calendar year to fiscal year, or from one fiscal year to another, the net income shall, with the approval of the Commissioner, be computed on the basis of such new accounting period, subject to the provisions of Section 47.

Implementing the above provision, requirements of RR No. 3-11 may be summarized as follows:

a. While a choice of accounting period is a management discretion, change thereof must be approved by the Commissioner of Internal Revenue through the Revenue District Office of registration;
b. The reason for change must be duly stated in the application;
c. Submission of the final adjustment return; and,
d. Duly approved amended By-laws for corporate taxpayers with the new accounting period.

Accordingly, hereunder are the documentary requirements for the application to be filed at anytime not less than sixty (60) days prior to the beginning of the proposed new accounting period:

1. Letter request addressed to the Revenue District Officer of registration indicating the (a) original accounting period and the new accounting period to be adopted, and (b) the reason for desiring to change the accounting period;
2. Duly filled-up BIR Form No. 1905;
3. Certified True Copy of the Amended By-laws with the new accounting period duly approved by the Securities and Exchange Commission (SEC);
4. Sworn certification of "non-forum shopping" stating that the request has not been filed or previously acted upon by the BIR National Office, signed by the taxpayer or authorized representative; and,
5. Sword undertaking by a responsible officer of the taxpayer to file a separate final or adjustment return for the period between the close of the original accounting period and the date designated as the close of the new accounting period on or before the 15th day of the fourth month following the end of the period covered by the final/adjustment return.
   

Under Section 6 of RR 3-11, the Certification approving the adoption of a new accounting period must be released within thirty (30) working days from the date of receipt of the complete documentary requirements.

Procedure wise, the first thing to do is to secure SEC amendment of By-laws, then, file the application with the BIR.

Resources:

Revenue Regulations No. 3-2011
BIR Form No. 1905


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Overseas Communication Tax Under RR 11 - 2011

Revenue Regulations No. 11-2011 entitled "Revenue Regulations Defining Gross Receipts for Common Carrier's Tax for International Carriers pursuant to Section 118 of the Tax Code amending Section 10 of Revenue Regulations No. 15-2011" finally came up with a formal definition of Gross Receipts for International Carriers under Section 118 of the Tax Code as follows:

"Gross receipts" shall include, but shall not be limited to, the total amount of money or its equivalent representing the contract or ticket prize, excess baggage fees, freight/cargo fees, mail fees, rental, penalties, deposit applied as payments, advance payments and other service charges and fees actually or constructively received during the taxable quarter from the passage of persons, excess baggage, cargo and/or mail, originating from the Philippines in a continuous and uninterrupted flight, irrespective of the place of sale or issue and the place of payment of the passage documents.

Provided, that ticket revalidated, exchanged and/or endorsed to another international airline shall likewise form part of the gross receipts if the passenger boards a plane in a port or point in the Philippines.

Provided, further, that for a flight which originates from the Philippines, but where transshipment of passenger takes place at any port outside the Philippines on another airline, only the aliquot portion of the cost of the ticket corresponding to the leg flown from the Philippines to the point of transshipment shall form part of the Gross Receipts.

Said definition amended Section 10 of Revenue Regulations No. 15-2002. Notably, Section 118 of the Tax Code simply provides as follows:

SEC. 118 Percentage Tax on International Carriers. -

(A) International air carriers doing business in the Philippines shall pay a tax of three percent (3%) of their quarterly gross receipts.

(B) International shipping carriers doing business in the Philippines shall pay a tax equivalent to three percent (3%) of their quarterly gross receipts.

Thus, the above definition under Revenue Regulations No. 11-2011 amending Section 10 of Revenue Regulations No. 15-2002 would serve as a guide for international carriers in determining their gross receipts for percentage tax purposes.

This may not have much impact for passengers of international flights because percentage tax imposed by the Bureau of Internal Revenue (BIR) is a direct tax where the airline company is the one directly liable. It is not like with the Value Added Tax (VAT) that could be passed on to the buyer.

Resources:

Revenue Regulations No. 11-2011
Revenue Regulations No. 15-2001



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VAT on tax-free transfer under RR No. 10-2011

Revenue Regulations No. 10-2011 dated July 1, 2011 entitled "Amending Certain Provisions of Revenue Regulations No. 16-2005, as amended by Revenue Regulations No. 4-2007, Otherwise Known as the Consolidated Value Added Tax Regulations of 2005, as amended" finally settled the issue of VAT on tax-free transfers of real property used in trade or business of a taxpayer.

Section 2 of RR No. 10-2011 reworded part of Section 4.106-8 of RR No. 16-05, as last amended by RR No. 4-07, as follows:

"X x x

However, the exchange of goods or properties including the real estate properties used in business or held for sale or for lease by the transferor, for shares of stocks, whether resulting in corporate control or not, is subject to VAT"

X x x"

Based on the above provision, a real property that is used in trade or business or held for lease in the ordinary course of trade or business of the owner-transferor, shall be subject to 12% Value Added Tax (VAT) if transferred to a corporation in exchange for shares of stocks, irregardless of whether or not the owner-transferor acquired control in accordance with Section 40 of the Tax Code of the Philippines, as amended.

Reference:

Revenue Regulations No. 10-2011


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