2009 Pre-Week Material - Taxation
2009 Pre-Week Material - Taxation
2009 Pre-Week Material - Taxation
(A pre‐week material for 2009 Bar Candidates)
by Atty. CLIFFORD P. TORRALBA, C.P.A. 2
“…whatever you do, whether in word or deed, do it all in the name
of the Lord JESUS, giving thanks to GOD the Father through HIM.”
(Colossians 3:17)
GENERAL CONSIDERATION
Q1: How are statutes granting tax exemptions construed?
A: Taxes are what civilized people pay for civilized society. They are the lifeblood of the
nation. Thus, statutes granting tax exemptions are construed stricissimi juris against the
taxpayer and liberally in favor of the taxing authority. A claim of tax exemption must be
clearly shown and based on language in law too plain to be mistaken. Otherwise stated,
taxation is the rule, exemption is the exception. The burden of proof rests upon the party
claiming the exemption to prove that it is in fact covered by the exemption so claimed.
The basis for the rule on strict construction to statutory provisions granting tax
exemptions or deductions is to minimize differential treatment and foster impartiality,
fairness and equality of treatment among taxpayers. He who claims an exemption from his
share of common burden must justify his claim that the legislature intended to exempt him
by unmistakable terms. For exemptions from taxation are not favored in law, nor are they
presumed. They must be expressed in the clearest and most unambiguous language and not
left to mere implications. It has been held that exemptions are never presumed, the burden
is on the claimant to establish clearly his right to exemption and cannot be made out of
inference or implications but must be laid beyond reasonable doubt. In other words, since
taxation is the rule and exemption the exception, the intention to make an exemption
ought to be expressed in clear and unambiguous terms. (Quezon City, et al. vs. ABS‐CBN
Broadcasting Corporation, G.R. No. 166408, 6 October 2008)
A tax exemption cannot arise from vague inference. (Digital Telecommunications
Phils., Inc. vs. City Government of Batangas, et al., G.R. No. 156040, 11 December 2008)
Q2: Discuss the distinction between tax exemptions and tax refunds.
1
It has been observed that, for a number of years, some of the questions in the Bar Examinations are taken from
or answerable with recent jurisprudence. In this connection, to aid the Bar Candidate to be updated and/or be
informed thereof, as regards the subject of taxation, this humble work was prepared. It must be emphasized,
however, that the coverage of this work was limited merely to pronouncements made by the Supreme Court
which are noteworthy for a Bar Candidate.
2
Court Attorney, Court of Tax Appeals; Formerly, OIC-Assistant Division Chief, Bureau of Internal Revenue.
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A: Tax exemption is a result of legislative grace. And he who claims an exemption from
the burden of taxation must justify his claim by showing that the legislature intended to
exempt him by words too plain to be mistaken. The rule is that tax exemptions must be
strictly construed such that the exemption will not be held to be conferred unless the terms
under which it is granted clearly and distinctly show that such was the intention.
A claim for tax refund may be based on statutes granting tax exemption or tax
refund. In such case, the rule of strict interpretation against the taxpayer is applicable as
the claim for refund partakes of the nature of an exemption, a legislative grace, which
cannot be allowed unless granted in the most explicit and categorical language. The
taxpayer must show that the legislature intended to exempt him from the tax by words too
plain to be mistaken.
Tax refunds (or tax credits), on the other hand, are not founded principally on
legislative grace but on the legal principle which underlies all quasi‐contracts abhorring a
person’s unjust enrichment at the expense of another. The dynamic of erroneous payment
of tax fits to a tee the prototypic quasi‐contract, solutio indebiti, which covers not only
mistake of fact but also mistake of law.
The Government is not exempt from the application of solutio indebiti. Indeed, the
taxpayer expects fair dealing from the Government, and the latter has the duty to refund
without any unreasonable delay what it has erroneously collected. If the State expects its
taxpayers to observe fairness and honesty in paying their taxes, it must hold itself against
the same standard in refunding excess or erroneous payments of such taxes. It should not
unjustly enrich itself at the expense of taxpayers. And so, given its essence, a claim for tax
refund necessitates only preponderance of evidence for its approbation like in any other
ordinary civil case. (Commissioner of Internal Revenue vs. Fortune Tobacco Corporation, G.R.
No. 167274‐75, 21 July 2008)
Q3: What is a tax amnesty?
A: A tax amnesty is a general pardon or the intentional overlooking by the State of its
authority to impose penalties on persons otherwise guilty of violation of a tax law. It
partakes of an absolute waiver by the government of its right to collect what is due it and
to give tax evaders who wish to relent a chance to start with a clean slate. A tax amnesty,
much like a tax exemption, is never favored or presumed in law. The grant of a tax amnesty,
similar to a tax exemption, must be construed strictly against the taxpayer and liberally in
favor of the taxing authority. [Metropolitan Bank and Trust Co. vs. Commissioner of Internal
Revenue, G.R. No. 178797, 4 August 2009; Philippine Banking Corporation (Now: Global
Business Bank, Inc.) vs. Commissioner of Internal Revenue, G.R. No. 170574, 30 January 2009]
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INCOME TAXATION
Q4: Define the term “taxable income” in the context in which it is used in the NIRC.
A: Taxable income is defined under Section 31 of the NIRC of 1997 as the pertinent
items of gross income specified in the said Code, less the deductions and/or personal and
additional exemptions, if any, authorized for such types of income by the same Code or
other special laws. The gross income, referred to in Section 31, is described in Section 32 of
the NIRC of 1997 as income from whatever source, including compensation for services; the
conduct of trade or business or the exercise of profession; dealings in property; interests;
rents; royalties; dividends; annuities; prizes and winnings; pensions; and a partner’s
distributive share in the net income of a general professional partnership. (Commissioner of
Internal Revenue vs. Philippine Airlines, Inc., G.R. No. 180066, 7 July 2009)
Q5: Is there any exception or qualification to the irrevocability rule under Section 76 3 of
the NIRC of 1997?
A: There is none. Section 76 remains clear and unequivocal. Once the carry‐over
option is taken, actually or constructively, it becomes irrevocable. It mentioned no
exception or qualification to the irrevocability rule.
Hence, the controlling factor for the operation of the irrevocability rule is that the
taxpayer chose an option; and once it had already done so, it could no longer make another
one. Consequently, after the taxpayer opts to carry‐over its excess tax credit to the
following taxable period, the question of whether or not it actually gets to apply said tax
credit is irrelevant. Section 76 of the NIRC of 1997 is explicit in stating that once the option
to carry over has been made, “no application for tax refund or issuance of a tax credit
certificate shall be allowed therefor.” (Commissioner of Internal Revenue vs. Bank of the
Philippine Islands, G.R. No. 178490, 7 July 2009)
3
Section 76. Final Adjustment Return.- Every corporation liable to tax under Section 27 shall file a final
adjustment return 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.
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Q6: Does the failure of the taxpayer to make an appropriate marking of its option in the
Annual Income Tax Return or Final Adjustment Return automatically mean that the taxpayer
has opted for a tax credit?
A: No. One cannot get a tax refund and a tax credit at the same time for the same
excess income taxes paid. Failure to signify one’s intention in the Final Adjustment Return
(FAR) does not mean outright barring of a valid request for a refund, should one still choose
this option later on. A tax credit should be construed merely as an alternative remedy to a
tax refund under Section 76, subject to prior verification and approval of the Commissioner
of Internal Revenue.
The reason for requiring that a choice be made in the FAR upon its filing is to ease
tax administration, particularly the self‐assessment and collection aspects. A taxpayer that
makes a choice expresses certainty or preference and thus demonstrates clear diligence.
Conversely, a taxpayer that makes no choice expresses uncertainty or lack of preference
and hence shows simple negligence or plain oversight.
Despite the failure of the taxpayer to make the appropriate marking in the BIR form,
the filing of its written claim effectively serves as an expression of its choice to request a tax
refund, instead of a tax credit. To assert that any future claim for a tax refund will be
instantly hindered by a failure to signify one’s intention in the FAR is to render nugatory the
clear provision that allows for a two‐year prescriptive period. (Commissioner of Internal
Revenue vs. Bank of the Philippine Islands, G.R. No. 178490, 7 July 2009)
VALUE‐ADDED TAX
Q7: Distinguish the value‐added tax from the franchise tax.
A: The value‐added tax (VAT) is a percentage tax imposed on any person whether or
not a franchise grantee, who in the course of trade or business, sells, barters, exchanges,
leases, goods or properties, renders services. It is also levied on every importation of goods
whether or not in the course of trade or business. The tax base of the VAT is limited only to
the value added to such goods, properties, or services by the seller, transferor or lessor.
Further, the VAT is an indirect tax and can be passed on to the buyer.
The franchise tax, on the other hand, is a percentage tax imposed only on franchise
holders. It is imposed under Section 119 4 of the NIRC of 1997 and is a direct liability of the
4
SEC. 119. Tax on Franchises.- Any provision of general or special law to the contrary notwithstanding, there
shall be levied, assessed and collected in respect to all franchises on radio and/or television broadcasting
companies whose annual gross receipts of the preceding year do not exceed Ten million pesos (P10,000,000),
subject to Section 236 of this Code, a tax of three percent (3%) and on gas and water utilities, a tax of two
percent (2%) on the gross receipts derived from the business covered by the law granting the franchise:
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franchise grantee. (Quezon City, et al. vs. ABS‐CBN Broadcasting Corporation, G.R. No.
166408, 6 October 2008)
NOTES:
To the foregoing, another distinction may be added, to wit: the rates of the VAT is
generally at 12% and in some transactions, 0%; while the rates of the franchise tax is 3% for
radio and/or television broadcasting companies, and 2% for gas and water utilities.
The franchise tax on domestic airlines has been abolished. (Section 22, RA 9337)
PROTESTING AN ASSESSMENT UNDER THE NIRC OF 1997
Q8: Define the term “assessment” in the context in which it is used in the NIRC of 1997.
A: In the context in which it is used in the NIRC, an assessment is a written notice and
demand made by the Bureau of Internal Revenue (BIR) on the taxpayer for the settlement
of a due tax liability that is there definitely set and fixed. A written communication
containing a computation by a revenue officer of the tax liability of a taxpayer and giving
him an opportunity to contest or disprove the BIR examiner’s findings is not an assessment
since it is yet indefinite. (Adamson, et al. vs. Court of Appeals, et al., G.R. Nos. 120935 and
124557, 22 May 2009)
To be considered an assessment, the following must be present: (1) it must be
addressed to the taxpayer concerned; (2) demand must be made on the taxpayer to pay the
tax liability; (3) a period for payment of said tax liability; and (4) the same must be mailed or
sent to the taxpayer by the Commissioner. (Refer to Adamson, et al. vs. Court of Appeals, et
al., G.R. Nos. 120935 and 124557, 22 May 2009)
Q9: What is the importance of the issuance of a valid formal assessment notice and the
service thereof on the taxpayer?
A: The issuance of a valid formal assessment is a substantive prerequisite to tax
collection, for it contains not only a computation of tax liabilities but also a demand for
payment within a prescribed period, thereby signaling the time when penalties and
interests begin to accrue against the taxpayer and enabling the latter to determine his
remedies therefor. Due process requires that it must be served on and received by the
taxpayer. (Commissioner of Internal Revenue vs. Menguito, G.R. No. 167560, 17 September
2008)
Provided, however, That radio and television broadcasting companies referred to in this Section shall have an
option to be registered as a value-added taxpayer and pay the tax due thereon: Provided, further, That once the
option is exercised, said option shall be irrevocable. (As amended by RA 9337)
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Q10: Should a post‐reporting notice and pre‐assessment notice be accorded the same
treatment as a formal assessment notice?
A: No. The stringent requirement that an assessment notice be satisfactorily proven to
have been issued and released or, if receipt thereof is denied, that said assessment notice
have been served on the taxpayer, applies only to formal assessments prescribed under
Section 228 of the NIRC of 1997, but not to post‐reporting notices or pre‐assessment
notices.
A post‐reporting notice and pre‐assessment notice do not bear the gravity of a
formal assessment notice. The post‐reporting notice and pre‐assessment notice merely hint
at the initial findings of the BIR against a taxpayer and invites the latter to an “informal”
conference or clarificatory meeting. Neither notice contains a declaration of the tax liability
of the taxpayer or a demand for payment thereof. Hence, the lack of such notices inflicts no
prejudice on the taxpayer for as long as the latter is properly served a formal assessment
notice. (Commissioner of Internal Revenue vs. Menguito, G.R. No. 167560, 17 September
2008)
Q11: Enron, a domestic corporation registered with the Subic Bay Metropolitan Authority
as a freeport enterprise, filed its annual income tax return for the year 1996 on April 12,
1997. It indicated a net loss of P = 7,684,948.
During the pre‐assessment stage, the Commissioner of Internal Revenue (CIR)
advised Enron’s representative of the tax deficiency, informed it of the proposed tax
deficiency assessment through a preliminary five‐day letter and furnished Enron a copy of
the audit working paper allegedly showing in detail the legal and factual bases of the
assessment. The CIR argues that these steps sufficed to inform Enron of the laws and facts
on which the deficiency tax assessment was based.
Is the CIR correct?
A: No. In Commissioner of Internal Revenue vs. Enron Subic Power Corporation (G.R. No.
166387, 19 January 2009), the Supreme Court said:
The advice of tax deficiency, given by the CIR to an employee of Enron, as
well as the preliminary five‐day letter, were not valid substitutes for the
mandatory notice in writing of the legal and factual bases of the assessment.
These steps were mere perfunctory discharges of the CIR’s duties in correctly
assessing a taxpayer. The requirement for issuing a preliminary or final
notice, as the case may be, informing a taxpayer of the existence of a
deficiency tax assessment is markedly different from the requirement of
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what such notice must contain. Just because the CIR issued an advice, a
preliminary letter during the pre‐assessment stage and a final notice, in the
order required by law, does not necessarily mean that Enron was informed of
the law and facts on which the deficiency tax assessment was made.
The law requires that the legal and factual bases of the assessment be
stated in the formal letter of demand and assessment notice. Thus, such
cannot be presumed. Otherwise, the express provisions of Article 228 of the
NIRC and Revenue Regulations No. 12‐99 would be rendered nugatory. The
alleged “factual bases” in the advice, preliminary letter and “audit working
papers” did not suffice. There was no going around the mandate of the law
that the legal and factual bases of the assessment be stated in writing in the
formal letter of demand accompanying the assessment notice.
We note that the old law merely required that the taxpayer be notified of
the assessment made by the CIR. This was changed in 1998 and the taxpayer
must now be informed not only of the law but also of the facts on which the
assessment is made. Such amendment is in keeping with the constitutional
principle that no person shall be deprived of property without due process.
In view of the absence of a fair opportunity for Enron to be informed of the
legal and factual bases of the assessment against it, the assessment in
question was void. We reiterate our ruling in Reyes v. Almanzor, et al. 5 :
Verily, taxes are the lifeblood of the Government and so
should be collected without unnecessary hindrance. However,
such collection should be made in accordance with law as any
arbitrariness will negate the very reason for the Government itself.
Q12: When and how may an assessment be protested under Section 228 of the NIRC of
1997? How should the term “relevant supporting documents” under the same provision be
understood? Can the Bureau of Internal Revenue (BIR) demand what type of supporting
documents should be submitted?
A: Section 228 of the NIRC of 1997 provides the remedy to dispute a tax assessment
within a certain period of time. It states that an assessment may be protested by filing a
request for reconsideration or reinvestigation within 30 days from receipt of the
assessment by the taxpayer. Within 60 days from filing of the protest, all relevant
supporting documents shall have been submitted; otherwise, the assessment shall become
final.
5
G.R. Nos. 49839-46, 26 April 1991.
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The term “relevant supporting documents” should be understood as those
documents necessary to support the legal basis in disputing a tax assessment as determined
by the taxpayer. The BIR can only inform the taxpayer to submit additional documents. The
BIR cannot demand what type of supporting documents should be submitted. Otherwise, a
taxpayer will be at the mercy of the BIR, which may require the production of documents
that a taxpayer cannot submit. (Commissioner of Internal Revenue vs. First Express
Pawnshop Co., Inc., G.R. Nos. 172045‐46, 16 June 2009)
CRIMINAL OFFENSES AND LIABILITIES UNDER THE NIRC OF 1997
Q13: Are the filing of a “fraudulent return with intent to evade tax” and “failure to file a
return” crimes involving moral turpitude?
A: As a general rule, all crimes of which fraud is an element are looked on as involving
moral turpitude. Thus, the filing of a “fraudulent return with intent to evade tax” is a crime
involving moral turpitude as it entails wilfulness and fraudulent intent on the part of the
individual. The same, however, cannot be said for “failure to file a return” where the
omission already constitutes a violation of the law. (Republic of the Philippines vs. Marcos II,
et al., G.R. No. 130371, 4 August 2009)
Q14: Is a formal assessment necessary before the filing of a criminal complaint for tax
evasion against a taxpayer by the Department of Justice?
A: An assessment of a deficiency is not necessary to a criminal prosecution for willful
attempt to defeat and evade the income tax. A crime is complete when the violator has
knowingly and willfully filed a fraudulent return, with intent to evade and defeat the
tax. The perpetration of the crime is grounded upon knowledge on the part of the taxpayer
that he has made an inaccurate return, and the government’s failure to discover the error
and promptly to assess has no connections with the commission of the crime. (Adamson, et
al. vs. Court of Appeals, et al., G.R. Nos. 120935 and 124557, 22 May 2009; Ungab vs. Cusi,
Nos. L‐41919‐24, 30 May 1980, citing Merten’s Law of Federal Income Taxation, Vol. 10, Sec.
55A.05, p. 21)
CUSTOMS
Q15: When may seized articles not be released under bond?
A: Section 2301 of the Tariff and Customs Code of the Philippines (TCCP) states that
seized articles may not be released under bond if there is prima facie evidence of fraud in
their importation. Apropos, fraud is a generic term embracing all multifarious means which
human ingenuity can devise and which are resorted to by one individual to secure an
advantage and includes all surprise, trick, cunning, dissembling and any unfair way by which
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another is cheated. Since fraud is a state of mind, its presence can only be determined by
examining the attendant circumstances. (Commissioner of Customs vs. Court of Tax Appeals,
et al., G.R. No. 171516‐17, 13 February 2009)
Q16: When does importation take place?
A: Under Section 1202 of the TCCP, importation takes place when merchandise is
brought into the customs territory of the Philippines with the intention of unloading the
same at port.
An exception to this rule is transit cargo 6 entered for immediate exportation, under
Section 2103 of the TCCP. For an entry for immediate exportation to be allowed under said
provision, the following must concur:
(a) there is a clear intent to export the article as shown in the bill of
lading, invoice, cargo manifest or other satisfactory evidence;
(b) the Collector must designate the vessel or aircraft wherein the
articles are laden as a constructive warehouse to facilitate the
direct transfer of the articles to the exporting vessel or aircraft;
(c) the imported articles are directly transferred from the vessel or
aircraft designated as a constructive warehouse to the exporting
vessel or aircraft; and
(d) an irrevocable domestic letter of credit, bank guaranty or bond in
an amount equal to the ascertained duties, taxes and other
charges is submitted to the Collector (unless it appears in the bill
of lading, invoice, manifest or satisfactory evidence that the
articles are destined for transshipment). (Commissioner of
Customs vs. Court of Tax Appeals, et al., G.R. No. 171516‐17, 13
February 2009)
Q17: Define the term “liquidation” in the context in which it is used in the TCCP.
A: A liquidation is the final computation and ascertainment by the collector of duties
on imported merchandise, based on official reports as to the quantity, character, and value
thereof, and the collector’s own finding as to the applicable rate of duty; it is akin to an
assessment of internal revenue taxes under the NIRC where the tax liability of the taxpayer
is definitely determined. 7 (Pilipinas Shell Petroleum Corporation vs. Commissioner of
Internal Revenue, G.R. No. 176380, 18 June 2009)
6
“Transit cargo” is article arriving at any port from another port or place noted in the carrier’s manifest and
destined for transshipment to another local or foreign port. (Section 3519, TCCP)
7
Read Q8, page 5 of this work.
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NOTE: Section 7 of Republic Act No. 1125, as amended, states:
Sec. 7. Jurisdiction. – The CTA shall exercise:
(a) Exclusive appellate jurisdiction to review by appeal xxx;
xxx xxx xxx
4. Decisions of the Commissioner of Customs in
cases involving liability for customs duties, fees or other
money charges, seizure, detention, or release or property
affected, fines, forfeitures or other penalties in relation
thereto, or other matters arising under the Customs Law or
other laws administered by the Bureau of Customs;
These decisions of the Commissioner of Customs involving customs
duties specifically refer to his decisions on administrative tax protest cases,
as stated in Section 2402 of the Tariff and Customs Code of the Philippines
(TCCP):
Section 2402. Review by Court of Tax Appeals. – The party
aggrieved by a ruling of the Commissioner in any matter brought
before him upon protest or by his action or ruling in any case of
seizure may appeal to the Court of Tax Appeals, in the manner and
within the period prescribed by law and regulations.
Unless an appeal is made to the Court of Tax Appeals in the
manner and within the period prescribed by laws and regulations, the
action or ruling of the Commissioner shall be final and conclusive.
[Emphasis supplied.]
A tax protest case, under the TCCP, involves a protest of the liquidation of
import entries. (Pilipinas Shell Petroleum Corporation vs. Commissioner of Internal
Revenue, G.R. No. 176380, 18 June 2009)
LOCAL TAXATION
Q18: Who are vested with the personality to contest a local tax assessment before the
Local Board of Assessment Appeals?
A: Section 226 of the Local Government Code (LGC) lists down the two entities vested
with the personality to contest an assessment: the owner and the person with legal
interest in the property.
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A person legally burdened with the obligation to pay for the tax imposed on a
property has legal interest in the property and the personality to protest a tax assessment
on the property. This is the logical and legal conclusion when Section 226, on the rules
governing an assessment protest, is placed side by side with Section 250 on the payment of
real property tax; both provisions refer to the same parties who may protest and pay the
tax:
SECTION 226. Local Board of SECTION 250. Payment of Real
Assessment Appeals. ‐ Any Property Taxes in Instalments. ‐
owner or person having legal The owner of the real property
interest in the property who is or the person having legal
not satisfied with the action of interest therein may pay the
the provincial, city or municipal basic real property tax xxx due
assessor in the assessment of thereon without interest in four
his property may, within sixty (4) equal instalments xxx.
(60) days from the date of
receipt of the written notice of
assessment, appeal to the
Board of Assessment Appeals of
the province or city xxx.
The liability for taxes generally rests on the owner of the real property at the time
the tax accrues. This is a necessary consequence that proceeds from the fact of ownership.
However, personal liability for realty taxes may also expressly rest on the entity with the
beneficial use of the real property, such as the tax on property owned by the government
but leased to private persons or entities, or when the tax assessment is made on the basis
of the actual use of the property. In either case, the unpaid realty tax attaches to the
property but is directly chargeable against the taxable person who has actual and beneficial
use and possession of the property regardless of whether or not that person is the owner.
Legal interest should be an interest that is actual and material, direct and immediate,
not simply contingent or expectant. The concept of the directness and immediacy involved
is no different from that required in motions for intervention under Rule 19 of the Rules of
Court that allow one who is not a party to the case to participate because of his or her
direct and immediate interest, characterized by either gain or loss from the judgment that
the court may render. (National Power Corporation vs. Province of Quezon, et al., G.R. No.
171586, 15 July 2009)
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Q19: To which do the exemptions from real property taxation under Section 234 8 of the
LGC based?
A: The said exemptions are based on the ownership, character, and use of the property.
Thus:
1. Ownership Exemptions. Exemptions from real property taxes on the basis of
ownership are real properties owned by: (i) the Republic, (ii) a province, (iii) a city,
(iv) a municipality, (v) a barangay, and (vi) registered cooperatives.
2. Character Exemptions. Exempted from real property taxes on the basis of their
character are (i) charitable institutions, (ii) houses and temples of prayer like
churches, parsonages or convents appurtenant thereto, mosques, and (iii) non‐profit
or religious cemeteries.
3. Usage exemptions. Exempted from real property taxes on the basis of the actual,
direct and exclusive use to which they are devoted are: (i) all lands, buildings and
improvements which are actually, directly and exclusively used for religious,
charitable or educational purposes; (ii) all machineries and equipment actually,
directly and exclusively used by local water districts or by government‐owned or
controlled corporations engaged in the supply and distribution of water and/or
generation and transmission of electric power; and (iii) all machinery and equipment
used for pollution control and environmental protection. (The Provincial Assessor of
Marinduque vs. Court of Appeals, et al., G.R. No. 170532, 30 April 2009, citing
Mactan Cebu International Airport Authority vs. Marcos, G.R. No. 120082, 11
September 1996)
NOTES:
To help provide a healthy environment in the midst of the modernization
of the country, all machinery and equipment for pollution control and
environmental protection may not be taxed by local governments (The
Provincial Assessor of Marinduque vs. Court of Appeals, et al., G.R. No.
8
SEC. 234. Exemptions from Real Property Tax .- The following are exempted from payment of the real
property tax:
(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when
the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person;
(b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, nonprofit or
religious cemeteries and all lands, buildings, and improvements actually, directly, and exclusively used for
religious, charitable or education purposes;
(c) All machineries and equipment that are actually, directly and exclusively used by local water districts
and government-owned or controlled corporations engaged in the supply and distribution of water and/or
generation and transmission of electric power;
(d) All real property owned by duly registered cooperatives as provided for under R.A. No. 6938; and
(e) Machinery and equipment used for pollution control and environment protection.
Except as provided herein, any exemption from payment of real property tax previously granted to, or
presently enjoyed by, all persons, whether natural or juridical, including all government-owned or controlled
corporations are hereby withdrawn upon the effectivity of this Code.
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170532, 30 April 2009, citing Mactan Cebu International Airport Authority vs.
Marcos, G.R. No. 120082, 11 September 1996). As above‐stated, such
exemption is based on usage. The term “usage” means direct, immediate
and actual application of the property itself to the exempting purpose.
Section 199 of the LGC defines “actual use” as “the purpose for which the
property is principally or predominantly utilized by the person in possession
thereof.” It contemplates concrete, as distinguished from mere potential,
use. (The Provincial Assessor of Marinduque vs. Court of Appeals, et al., G.R.
No. 170532, 30 April 2009)
To successfully claim exemption under no. 3(ii) above, the claimant must
prove two (2) elements:
a) the machineries and equipment are actually, directly, and exclusively used by
local water districts and government‐owned or controlled corporations; and
b) the local water districts and government‐owned and controlled corporations
claiming exemption must be engaged in the supply and distribution of water
and/or the generation and transmission of electric power. (National Power
Corporation vs. Province of Quezon, et al., G.R. No. 171586, 15 July 2009)
COURT OF TAX APPEALS (CTA)
Q20: Is the CTA now allowed to sit en banc or in Division?
A: The amendments introduced by Republic Act No. (RA) 9282 9 to RA 1125 elevated
the rank of the CTA to a collegiate court, with the same rank as the Court of Appeals, and
increased the number of its members to one (1) Presiding Justice and five (5) Associate
Justices. The CTA is now allowed to sit en banc or in two Divisions with each Division
consisting of three Justices. Four (4) Justices shall constitute a quorum for sessions en banc,
and the affirmative votes of four (4) members of the Court en banc are necessary for the
rendition of a decision or resolution; while two (2) Justices shall constitute a quorum for
sessions of a Division and the affirmative votes of two (2) members of the Division shall be
necessary for the rendition of a decision or resolution. (Judy Anne L. Santos vs. People, et al.
G.R. No. 173176, 26 August 2008)
NOTE: RA 9503, which was signed into law on 12 June 2008, further
amended RA 1125 and RA 9282. Under RA 9503, the CTA may now sit en
banc or in three (3) Divisions, each Division consisting of three (3) Justices.
Also, five (5) Justices shall now constitute a quorum for sessions en banc, and
two (2) Justices for sessions of a Division. Furthermore, the affirmative votes
9
This law took effect on April 23, 2004.
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RECENT JURISPRUDENCE-TAXATION
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of five (5) members of the Court en banc shall be necessary to reverse a
decision of a Division but a simple majority of the Justices present necessary
to promulgate a resolution or decision in all other cases or two (2) members
of Division, as the case may be, shall be necessary for the rendition of a
decision or resolution in the Division level.
Q21: Is the Supreme Court vested with jurisdiction to review decisions of a Division of the
CTA?
A: No. Section 2, Rule 4 of the Revised Rules of the Court of Tax Appeals reiterates the
exclusive appellate jurisdiction of the CTA en banc relative to the review of decisions or
resolutions on motion for reconsideration or new trial of the court’s two (2) divisions [now
three (3) divisions] in cases arising from administrative agencies. Hence, the Supreme Court
is without jurisdiction to review decisions rendered by a division of the CTA, exclusive
appellate jurisdiction over which is vested in the CTA en banc. (Commissioner of Customs vs.
Gelmart Industries Philippines, Inc., G.R. No. 169352, 13 February 2009)
NOTES:
A party adversely affected by a ruling, order or decision of a Division of
the CTA may file a motion for reconsideration or new trial before the same
Division of the CTA within fifteen (15) days from notice thereof [Section 11
(third paragraph), RA 1125, as amended by RA 9282].
A party adversely affected by a resolution of a Division of the CTA on a
motion for reconsideration or new trial, may file a petition for review with
the CTA en banc [Section 18 (second paragraph), RA 1125, as amended by RA
9282].
A party adversely affected by a decision or ruling of the CTA en banc may
file with the Supreme Court a verified petition for review on certiorari
pursuant to Rule 45 of the 1997 Rules of Civil Procedure (Section 19, RA 1125,
as amended by RA 9282).
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GOOD LUCK TO ALL! GOD BLESS.