TAX-CREBA VS Executive Secretary Romulo

CREBA VS. EXEC. SEC.
ROMULO
G.R. No. 160756 March 9, 2010
Facts
Petitioner assails the validity of the imposition of minimum corporate income tax (MCIT) on corporations and
creditable withholding tax (CWT) on sales of real properties classified as ordinary assets. Section 27(E) of RA 8424
provides for MCIT on domestic corporations and is implemented by RR 9-98.
 Petitioner argues that the MCIT violates the due process clause because it levies income tax even if there is
no realized gain.
 Petitioner also seeks to nullify Sections 2.57.2(J) and 2.58.2 of RR 2-98, and Section 4(a)(ii) and (c)(ii) of RR
7-2003, all of which prescribe the rules and procedures for the collection of CWT on the sale of real
properties categorized as ordinary assets.
o Petitioner contends that these revenue regulations are contrary to law for two reasons:
1. They ignore the different treatment by RA 8424 of ordinary assets and capital assets and
2. The respondent Secretary of Finance has no authority to collect CWT, much less, to base
the CWT on the gross selling price or fair market value of the real properties classified as
ordinary assets.
 Petitioner also asserts that the enumerated provisions of the subject revenue regulations violate the due
process clause because, like the MCIT, the government collects income tax even when the net income has
not yet been determined. They contravene the equal protection clause as well because the CWT is being
levied upon real estate enterprises but not on other business enterprises, more particularly those in the
manufacturing sector.
ISSUES:
1. W/N the imposition of the MCIT on domestic corporations is unconstitutional (NO).
Firstly, what is minimum corporate income tax (MCIT)?
Concept and Rationale of the MCIT

The MCIT on domestic corporations is a new concept introduced by RA 8424 to the Philippine taxation system. It
came about as a result of the perceived inadequacy of the self-assessment system in capturing the true income of
corporations. Tax Reform Act introduces for the first time a new concept called the [MCIT] so as to minimize tax
evasion, tax avoidance, tax manipulation in the country and for administrative convenience. Congress
intended to put a stop to the practice of corporations which, while having large turn-overs, report minimal or negative
net income resulting in minimal or zero income taxes year in and year out, through under-declaration of income or
over-deduction of expenses otherwise called tax shelters.
To further emphasize the corrective nature of the MCIT, the following safeguards were incorporated into the law:
1. First, recognizing the birth pangs of businesses and the reality of the need to recoup initial major capital
expenditures, the imposition of the MCIT commences only on the fourth taxable year immediately following
the year in which the corporation commenced its operations.
 This grace period allows a new business to stabilize first and make its ventures viable before it is
subjected to the MCIT.
2. Second, the law allows the carrying forward of any excess of the MCIT paid over the normal income tax
which shall be credited against the normal income tax for the three immediately succeeding years.
3. Third, since certain businesses may be incurring genuine repeated losses, the law authorizes the Secretary
of Finance to suspend the imposition of MCIT if a corporation suffers losses due to prolonged labor
dispute, force majeure and legitimate business reverses.
The claim
Petitioner claims that the MCIT under Section 27(E) of RA 8424 is unconstitutional because it is highly oppressive,
arbitrary and confiscatory which amounts to deprivation of property without due process of law.
 It explains that gross income as defined under said provision only considers the cost of goods sold and other
direct expenses; other major expenditures, such as administrative and interest expenses which are equally
necessary to produce gross income, were not taken into account. Thus, pegging the tax base of the MCIT to
a corporation’s gross income is tantamount to a confiscation of capital because gross income, unlike net
income, is not "realized gain."
ISSUE 1: W/N the imposition of the MCIT on domestic corporations is unconstitutional.

HELD: NO.
Taxation is an inherent attribute of sovereignty. It is a power that is purely legislative. The legislature wields the power
to define what tax shall be imposed, why it should be imposed, how much tax shall be imposed, against whom (or
what) it shall be imposed and where it shall be imposed.
As a general rule, the power to tax is plenary and unlimited in its range, acknowledging in its very nature no limits, so
that the principal check against its abuse is to be found only in the responsibility of the legislature (which imposes the
tax) to its constituency who are to pay it. 37 Nevertheless, it is circumscribed by constitutional limitations. At the same
time, like any other statute, tax legislation carries a presumption of constitutionality.
For income to be taxable, the following requisites must exist:

(1) there must be gain;
(2) the gain must be realized or received and
(3) the gain must not be excluded by law or treaty from taxation.
Petitioner is correct in saying that income is distinct from capital. Income means all the wealth which flows into the
taxpayer other than a mere return on capital. Capital is a fund or property existing at one distinct point in time while
income denotes a flow of wealth during a definite period of time. Certainly, an income tax is arbitrary and
confiscatory if it taxes capital because capital is not income. In other words, it is income, not capital, which is subject
to income tax.
However, the MCIT is not a tax on capital.
 The MCIT is imposed on gross income which is arrived at by deducting the capital spent by a corporation in
the sale of its goods, i.e., the cost of goods and other direct expenses from gross sales. Clearly, the capital
is not being taxed.
 Furthermore, the MCIT is not an additional tax imposition. It is imposed in lieu of the normal net income tax,
and only if the normal income tax is suspiciously low.
Absent any other valid objection, the assignment of gross income, instead of net income, as the tax base of the
MCIT, taken with the reduction of the tax rate from 32% to 2%, is not constitutionally objectionable.
Moreover, petitioner does not cite any actual, specific and concrete negative experiences of its members nor does it
present empirical data to show that the implementation of the MCIT resulted in the confiscation of their property.
In sum, petitioner failed to support, by any factual or legal basis, its allegation that the MCIT is arbitrary and
confiscatory. The Court cannot strike down a law as unconstitutional simply because of its yokes. Taxation is
necessarily burdensome because, by its nature, it adversely affects property rights. The party alleging the laws
unconstitutionality has the burden to demonstrate the supposed violations in understandable terms.

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TAX-CREBA VS Executive Secretary Romulo

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CREBA VS. EXEC. SEC.

Firstly, what is minimum corporate income tax (MCIT)?

Concept and Rationale of the MCIT

ISSUE 1: W/N the imposition of the MCIT on domestic corporations is unconstitutional.

For income to be taxable, the following requisites must exist:

However, the MCIT is not a tax on capital.

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