2015 Bar Exam Suggested Answers in Taxation by the UP Law Complex

Explain the principles of a sound tax system. (3%)

SUGGESTED ANSWER

The principles of a sound tax system and their respective explanations, are as follows:

a) Fiscal adequacy which means that the sources of revenue should be sufficient to meet the demands of public expenditures (Chavez v. Ongpin, G.R. No. 76778, June 6, 1990);

b) Equality or theoretical justice which means that the tax burden should be proportionate to the taxpayer’s ability to pay (Sec. 28(1), Art. VI, 1987 Constitution); and

c) Administrative feasibility which means that the tax law should be capable of convenient, just and effective administration, as well as, easy compliance by taxpayer.

Mr. A, a citizen and resident of the Philippines, is a professional boxer. In a professional boxing match held in 2013, he won prize money in United States (US) dollars equivalent to P300,000,000.

(A) Is the prize money paid to and received by Mr. A in the US taxable in the Philippines? Why? (2%)

(B) May Mr. A’s prize money qualify as an exclusion from his gross income? Why? (2%)

(C) The US already imposed and withheld income taxes from Mr. A’s prize money. How may Mr. A use or apply the income taxes he paid on his prize money to the US when he computes his income tax liability in the Philippines for 2013? (4%)

SUGGESTED ANSWER

(A) Yes. Under the Tax Code, the income within and without of a resident citizen is taxable. Since Mr. A is a resident Filipino citizen, his income worldwide is taxable in the Philippines (Sec. 23 A, NIRC).

(B) No. Under the law, all prizes and awards granted to athletes in local and international sports competitions and tournaments whether held in the Philippines or abroad and sanctioned by their national sports associations are excluded from gross income. The exclusion find application only to amateur athletes where the prize was given in an event sanctioned by the appropriate national sports association affiliated with the Philippine Olympic Committee and not to professional athletes like Mr. A. Therefore, the prize money would not qualify as an exclusion from Mr. A’s gross income (Sec. 32 B [7] [d], NIRC).

(C) The income taxes withheld and paid to the U.S. government maybe claimed by Mr. A, either as a deduction from his gross income or as a tax credit from the income tax due, when he computes his Philippine income tax liability for taxable year 2013 (Sec. 34(C)(1)(b), NIRC).

SUGGESTED ANSWER

(A) Yes, the income of Ms. B from the sale of ready-to-wear goods to C is taxable. A nonresident citizen is taxable only on incorne derived from sources within the Philippines (Sec. 23(B), NIRC). In line with the source rule of income taxation, since the goods are produced and sold within the Philippines, Ms. B’s Philippine-sourced income is taxable in the Philippines.

(B) Yes, but only a proportionate part of the income. Gains, profits and income from the sale of personal property produced by the taxpayer without and sold within the Philippines, shall be treated as derived partly from sources within and partly from sources without the Philippines (Sec. 42E, NIRC).

Note: The problem does not indicate where the sale took place. The suggested answers in a and b above assume that the sale took place in the Philippines. A non-resident alien is to be taxed by the Philippine government only on her income derived from an activity conducted in the Philippines such as the sale of goods irrespective where produced.

III.

Ms. C, a resident citizen, bought ready-to-wear goods from Ms. B, a non-resident citizen.

(A) If the goods were produced from Ms. B’s factory in the Philippines, is Ms. B’s income from the sale to Ms. C taxable in the Philippines? Explain. (2%)

(B) If Ms. B is an alien individual and the goods were produced in her factory in China, is Ms. B’s income from the sale of the goods to Ms. C taxable in the Philippines? Explain. (2%)

SUGGESTED ANSWER

(A) Yes, the income of Ms. B from the sale of ready-to-wear goods to C is taxable. A nonresident citizen is taxable only on income derived from sources within the Philippines (Sec. 23(B), NIRC). In line with the source rule of income taxation, since the goods are produced and sold within the Philippines, Ms. B’s Philippine-sourced income is taxable in the Philippines.

IV.

Mr. E and Ms. Fare both employees of AAA Corp. They got married on February 14, 2011. On December 29, 2011, the couple gave birth to triplets. On June 25, 2013, they had twins. What were the personal exemptions or deductions which Mr. E and Ms. F could claim in the following taxable years:

(A) For 2010 (2%)

(B) For 2011 (3%)

SUGGESTED ANSWER

(A) For 2010, Mr. E and Ms. Fare each entitled to personal exemptions of P50,000.00 (Sec. 35A, NIRC).

(B) For 2011, Mr. E and Ms. Fare each entitled to basic personal exemption of P50,000.00. In addition to his basic personal exemption, Mr. E could claim additional personal exemptions for three (3) qualified dependent children in the amount of P25,000.00 for each child (Sec. 35B, NIRC).

(C) For 2013, Mr. E and Ms. Fare each entitled basic personal exemptions of P50,000.00. Mr. E could claim additional personal exemptions for four (4) qualified dependent children in the amount of P25,000.00 for each child (Sec. 35B, NIRC).

BBB, Inc., a domestic corporation, enjoyed a particularly profitable year in 2014. In June 2015, its Board of Directors approved the distribution or cash dividends to its stockholders. BBB, Inc. has individual and corporate stockholders. What is the tax treatment of the cash dividends received from BBB, Inc. by the following stockholders:

(A) A resident citizen (1%)

(B) Non-resident alien engaged in trade or business (1%)

(D) Domestic corporation (1%)

(E) Non-resident foreign corporation (1%)

SUGGESTED ANSWER

(A) A final withholding tax for ten percent (10%) shall be imposed upon the cash dividends actually or constructively received by a resident citizen from BBB, Inc. (Sec. 24 (b)(2), NIRC).

(B) A final withholding tax of twenty percent (20%) shall be imposed upon the cash dividends actually or constructively received by a non-resident alien engaged in trade or business from BBB, Inc. (Sec. 25(a)(2), NIRC).

(C) A final withholding tax equal to twenty-five percent (25%) of the entire income received from all sources within the Philippines, including the cash dividends received from BBB, Inc. (Sec. 25(b), NIRC).

(D) Dividends received by a domestic corporation from another domestic corporation, such as BBB, Inc., shall not be subject to tax (Sec. 27(d) (4), NIRC).

(E) Dividends received by a non-resident foreign corporation from a domestic corporation are generally subject to an income tax of 30% to be withheld at source (Sec. 28(b)(1), NIRC). However, a final withholding tax of fifteen percent (15%) is imposed on the amount of cash dividends received from a domestic corporation like BBB, Inc. if the tax sparing rule applies (Sec. 28(B) (5)(b), NIRC). Pursuant to this rule, the lower rate of tax would apply if the country in which the non-resident foreign corporation is domiciled would allow as tax credit against the tax due from it, taxes deemed paid in the Philippines of 15% representing the difference between the regular income tax rate and the preferential rate.

VI.

Differentiate between double taxation in the strict sense and in a bro sense and give an example of each. (4%)

SUGGESTED ANSWER

Double taxation in the strict sense pertains to the direct double taxation. This means that the taxpayer is taxed twice by the same taxing authority, within the same taxing jurisdiction, for the same property and same purpose., Example: Imposition of final withholding tax on cash dividend and requiring the taxpayer to declare this tax-paid income in his income tax returns..

On the other hand, double taxation in the broad sense pertains to indirect double taxation. This extends to all cases in which there is a burden of two or more impositions. It is the double taxation other than those covered by direct double taxation (CIR v. Solidbank Corp., G.R. No. 148191, November 25, 2003, 436 SCRA 416). Example: Subjecting the interest income of banks on their deposits with other banks to the 5% Gross Receipts Tax (GRT) despite of the same income having been subjected to 20% Final Withholding Tax (FWT), is only a case of indirect double taxation. The GRT is a tax on the privilege of engaging in business, while the FWT is a tax on the privilege of earning income (CIR v. Bank of Commerce, G.R. NO. 149636, June 8, 2005, 459 SCRA 638).

VII.

On May 15, 2013, CCC, Inc., received the Final Decision on Disputed Assessment issued by the Commissioner of Internal Revenue (CIR) dismissing the protest of CCC, Inc. and affirming the assessment against said corporation. On June 10, 2013, CCC, Inc., filed a Petition for Review with the Court of Tax Appeals (CTA) division. On July 31, 2015, CCC, Inc. received a copy of the Decision dated July 22, 2015 of the CTA division dismissing its Petition. CCC, Inc. immediately filed a Petition for Review with the CTA en banc on August 6, 2015. Is the immediate appeal by CCC, Inc. to the CTA en banc of the adverse Decision of the CTA division the proper remedy? (3%)

SUGGESTED ANSWER

No, CCC, Inc. should first file a motion for reconsideration or motion for new trial with the CTA Division. Before the CTA en banc could take cognizance of the petition for review concerning a case falling under its exclusive appellate jurisdiction, the litigant must sufficiently show that it sought prior reconsideration or moved for a new trial with the concerned CTA Division (Commissioner of Customs v. Marina Sale, G.R. No. 183868, November 22, 2010, 635 SCRA 606; Rule 8, Sec. 1 of the Revised Rules of Court of Tax Appeals).

VIII

In June 2013, DDD Corp., a domestic corporation engaged in the business of leasing real properties in the Philippines, entered into a lease agreement of a residential house and lot with EEE, Inc., a non-resident foreign corporation. The residential house and lot will be used by officials of EEE, Inc. during the visit to the Philippines. The lease agreement was signed by representatives from DDD Corp. and EEE, Inc. in Singapore. DDD Corp. did not subject the said lease to VAT believing that it was not a domestic service contract. Was DDD Corp. correct? Explain. (3%)

SUGGESTED ANSWER

DDD Corp. is not correct. Lease of properties shall be subject to VAT irrespective of the place where the contract of lease was executed if the property is leased or used in the Philippines (Sec. 108(A), NIRC)

For calendar year 2011, FFF, Inc., a VAT-registered corporation, reported unutilized excess input VAT in the amount of P1,000,000.00 attributable to its zero-rated sales. Hoping to impress his boss, Mr. G, the accountant of FFF, Inc., filed with the Bureau of Internal Revenue (BIR) on January 31, 2013 a claim for tax refund/credit of the P1,000,000.00 unutilized excess input VAT of FFF, Inc. for 2011. Not having received any communication from the BIR, Mr. G. filed a Petition for Review with the CTA on March 15, 2013, praying for the tax refund/credit of the P1,000,000.00 unutilized excess input VAT of FFF, Inc. for 2011. –

(A) Did the CTA acquire jurisdiction over the Petition of FFF, Inc.? (2%)

(B) Discuss the proper procedure and applicable time periods for administrative and judicial claims for refund/credit of unutilized excess input VAT. (4%)

SUGGESTED ANSWER

(A) The CTA has not acquired jurisdiction over the Petition of FFF, Inc. because the judicial claim has been prematurely filed on March 15, 2013. The Supreme Court ruled that the 30-day period after the expiration of the 120-day period fixed by law for the Commissioner of Internal Revenue to act on the claim for refund is jurisdictional and failure to comply would bar the appeal and deprive the Court of Tax Appeals of its jurisdiction to entertain the appeal (CIR v. Aichi Forging Company of Asia Inc.. G.R. No. 183421, October 22, 2014, 632 SCRA 422). in this case, Mr. G filed the administrative claim on January 31, 2013. The petition for relief should have been filed on June 30, 2013. Filing the indicial claim on March 15, 2013 is premature, thus the CTA did not acquire jurisdiction.

(B) The administrative claim must be filed with the Commissioner of Internal Revenue (CIR) within two years from the close of the taxable quarter when the zero-rated sales were made. The CIR has 120 days from the date of submission of complete documents in support of the claim to decide. If the CIR decides within the 120-day period or the 120-day period expires without the CIR rendering a decision, the taxpayer has 30 days to file a petition for review with the CTA reckoned from the receipt of adverse decision or from the lapse of the 120-day period.

As a general rule, the 30-day period to appeal is both mandatory and jurisdictional. As an exception to the general rule, premature filing is allowed only if filed between December 10, 2003 and October 5, 2010, when BIR Ruling No. DA-489-03 was still in force prior to the reversal of the aforesaid ruling by the CTA in the Aichi case on October 6, 2010 (Mindanao Il Geothermal Partnership v. CIR, G.R. No. 204745, December 8, 2014, 713 SCRA 645).

Indicate whether each of the following individuals is required or not required to file an income tax return;

(A) Filipino citizen residing outside the Philippines on his income from sources outside the Philippines. (1%)

(B) Resident alien on income derived from sources within the Philippines. (1%)

(C) Resident citizen earning purely compensation income from two employers within the Philippines, whose income taxes have been correctly withheld. (1%)

(D) Resident citizen who falls under the classification of minimum wage earners. (1%)

(E) An individual whose sole income has been subjected to final with holding tax. (1%)

SUGGESTED ANSWER

(A) Not required. The income of a non-resident Filipino citizen are taxable only on income sourced within the Philippines. Accordingly, his income from sources outside the Philippines is exempt from income tax (Sec. 51A (1)(b), NIRC).

(B) Required. A resident alien is taxable only for income derived from sources within the Philippines (Sec. 51A (1)(c), NIRC).

(C) Required. A resident citizen who is earning purely compensation income from two employers should file income tax return. If the compensation income is received concurrently from two employers during the taxable year, the employee is not qualified for substituted filing (Sec. 51A (2)(b), NIRC).

(D) Not required. Under the law, all minimum wage earners in the private and public sector shall be exempt from payment of income tax (Sec. 51A (2)(d), NIRC in relation to Republic Act No. 9504).

(E) Not required. Under the law, an individual whose sole income has been subjected of final withholding tax pursuant to Sec. 57(A), NIRC, need not file a return. What he received is a tax-paid income (Sec. 51A (2)(c) NIRC).

XI.

What are de minimis benefits and how are these taxed? Give three (3) examples of de minimis benefits. (4%)

SUGGESTED ANSWER

De minimis benefits are facilities and privileges furnished or offered by an employer to his employees, which are not considered as compensation subject to income tax and consequently to withholding tax, if such facilities or privileges are of relatively small value and are offered or furnished by the employer merely as means of promoting the health, goodwill, contentment, or efficiency of his employees. If received by rank-and-file employees, they are exempt from income tax on wages; if received by supervisory or managerial employees, they are exempt from the fringe benefits tax (RR No. 2-98, as amended by RR No. 8-2000). The following shall be considered as de minimis benefits: (Note: The examinee may choose any three)

Monetized unused vacation leave credits of private employees not

exceeding 10 days during the year;

Monetized value of vacation and sick leave credits paid to government officials and employees;
Medical cash allowance to dependents of employees, not exceeding P750 per employee per semester or P125 per month;
Rice subsidy of P1,500 or 1 sack of 50 kg rice per month amounting to not more than P1,500;

Uniform and clothing allowance not exceeding P5,000 per annum;
Actual medical assistance not exceeding P10,000 per annum;
Laundry allowance not exceeding P300 per month;
Employees achievement awards, e.g., for length of service or safety achievement, which must be in the form of a tangible personal property other than cash or gift certificate, with an annual monetary value not exceeding P10,000 received by the employee under an established written plan which does not discriminate in favor of highly paid employees;
Gifts given during Christmas and major anniversary celebrations not exceeding P5,000 per employee per annum;
Daily meal allowance for overtime work and night/graveyard shift not exceeding 25% of the basic minimum wage on a per region basis;
Benefits received by an employee by virtue of a collective bargaining agreement (CBA) and productivity incentive schemes, provided that the total annual monetary value received from both CBA and productivity incentive schemes combined do not exceed P10,000 per employee per taxable year (Rev. Regs. 2-98, as amended).

XII.

Mr. H decided to sell the house and lot wherein he and his family have lived for the past 10 years, hoping to buy and move to a new house and lot closer to his children’s school. Concerned about the capital gains tax that will be due on the sale of their house, Mr. H approaches you as a friend for advice, if it is possible for the sale of their house to be exempted from capital gains tax and the conditions they must comply with to avail themselves of said exemption. How will you respond?(4%)

SUGGESTED ANSWER

I would advise Mr. H, that he may be exempted from the payment of the capital gains tax on the sale or disposition of the house and lot where his family lives because the sale of principal residence by a natural person is exempt, provided the following conditions are complied with, viz: 1. The proceeds of the sale is fully utilized in acquiring or constructing new principal residence within 18 calendar months from the date of sale or disposition;

2. The historical cost or adjusted basis of the real property sold or disposed will be carried over to the new principal residence built or acquired;

3. The Commissioner has been duly notified, through a prescribed return, within 30 days from the date of sale or disposition of the person’s intention to avail of the tax exemption; and The exemption was availed only once every 10 years (Sec. 24(d)(2), NIRC).

XIII

GGG, Inc. offered to sell through competitive bidding its shares in HAH Corp., equivalent to 40% of the total outstanding capital stock of the latter. JJJ, Inc. acquired the said shares in HHH Corp. as the highest bidder. Before it could secure a certificate authorizing registration/tax clearance for the transfer of the shares of stock to JIJ, Inc., GGG, Inc. had to request a ruling from the BIR confirming that its sale of the said shares was at fair market value and was thus not subject to donor’s tax. In BIR Ruling No. 012-14, the CIR held that the selling price for the shares of stock of HHH Corp, was lower than their book value, so the difference between the selling price and the book value of said shares was a taxable donation. GGG, Inc. requested the Secretary of Finance to review BIR Ruling No. 012-14, but the Secretary affirmed said ruling. GGG, Inc. filed with the Court of Appeals a Petition for Review under Rule 43 of the Revised Rules of Court. The Court of Appeals, however, dismissed the Petition for lack of jurisdiction declaring that it is the CTA which has jurisdiction over the issues raised. Before which Court should GGG, Inc. seek recourse from the adverse ruling of the Secretary of Finance in the exercise of the latter’s power of review? (3%)

SUGGESTED ANSWER

GGG, Inc., should seek recourse with the Court of Tax Appeals (CTA) which has jurisdiction. There is no provision in law that expressly provides where exactly the adverse ruling of the Secretary of Finance under Section 4 of the NIRC is appealable. However, RA No. 1125, as amended, addresses the seeming gap in the law as it vests upon the CTA, albeit impliedly, with jurisdiction over the case as “other matters” arising under the NIRC or other laws administered by the BIR. Furthermore, the Supreme Court held that the jurisdiction to review the rulings of the Secretary of Finance on the issues raised against a ruling of the Commissioner of Internal Revenue, pertains to the Court of Tax Appeals in the exercise of its appellate jurisdiction (Philamlife v. The Sec. of Finance and CIR, G.R. No. 210987, November 24, 2014).

XIV

KKK Corp. secured its Certificate of Incorporation from the Securities and Exchange Commission on June 3, 2013. It commenced business operations on August 12, 2013. In April 2014, Ms. J, an employee of KKK Corp. in charge of preparing the annual income tax return of the corporation for 2013, got confused on whether she should prepare payment for the regular corporate income tax or the minimum corporate income tax.

(A) Ás Ms. J’s supervisor, what will be your advice? (2%),

(B) What are the distinctions between regular corporate income tax and minimum corporate income tax? (3%)

SUGGESTED ANSWER

(A) As Ms. J’s supervisor, I will advise that KKK Corp. should prepare payment for the regular corporate income tax and not the minimum corporate income tax. Under the Tax Code, minimum corporate income tax is only applicable beginning on the fourth taxable year following the commencement of business operation (Sec. 27(e)(1), NIRC).

(B) The distinctions between regular corporate income tax and the minimum corporate income tax are the following:

As to taxpayer: Regular corporate income tax applies to all corporate taxpayers; while minimum corporate income tax applies to domestic corporations and resident foreign corporations.
As to tax rate: Regular corporate income tax is 30%; while minimum corporate income tax is 2%.
As to tax base: Regular corporate income tax is based on the net taxable income; while minimum corporate income tax is based on gross income.
As to period of applicability: Regular corporate income tax is applicable once the corporation commenced its business operation, while minimum corporate income tax is applicable beginning on the fourth taxable year following the commencement of business operation.
As to imposition: The minimum corporate income tax is imposed whenever it is greater than the regular corporate income tax of the corporation (Sec. 27(A) and (E), NIRC; RR No. 9-98).

XV.

In 2012, Dr. K decided to return to his hometown to start his own practice. At the end of 2012, Dr. K found that he earned gross professional income in the amount P1,000,000.00, while he incurred expenses amounting to P560,000.00 constituting mostly of his office space rent, utilities, and miscellaneous expenses related to his medical practice. However, to Dr. K’s dismay, only P320,000.00 of his expenses were duly covered by receipts. What are the options available for Dr. K, so he could maximize the deductions from his gross income? (3%)

SUGGESTED ANSWER

In order to maximize his deductions, Dr. K may avail of the optional standard deduction (OSD) which is an amount not exceeding forty percent (40%) of his gross sales or gross receipts. The OSD can be claimed without being required to present proof or evidence of expenses paid or incurred by him (Sec. 34(L), NIRC; Rev. Regs. 16-08, as amended).

XVI

LLL is a government instrumentality created by Executive Order to be primarily responsible for integrating and directing all reclamation projects for the National Government. It was not organized as a stock or a non-stock corporation, nor was it intended to operate commercially and compete in the private market. By virtue of its mandate, LLL reclaimed several portions of the foreshore and offshore areas of the Manila Bay, some of which were within the territorial jurisdiction of Q City. Certificates of title to the reclaimed properties in Q City were issued in the name of LLL in 2008. In 2014, Q City issued Warrants of Levy on said reclaimed properties of LLL based on the assessment for delinquent property taxes for the years 2010 to 2013.

(A) Are the reclaimed properties registered in the name of LLL subject to real property tax? (4%)

(B) Will your answer be the same in (A) if from 2010 to the present time, LLL is leasing portions of the reclaimed properties for the establishment and use of popular fastfood restaurants J Burgers, G Pizza, and K Chicken? (2%)

SUGGESTED ANSWER

(A) The reclaimed properties are not subject to real property tax because LLL is a government instrumentality. Under the law, real property owned by the Republic of the Philippines is exempt from real property tax unless the beneficial use thereof has been granted to a taxable person (Sec. 234, Local Government Code). When the title of the real property is transferred to LLL, the Republic remains the owner of the real property. Thus, such arrangement does not result in the loss of the tax exemption (Republic of the Philippines, represented by The Philippine Reclamation Authority (PRA) v. City of Paranaque, G.R. No. 191109, July 8, 2012, 677 SCRA 246):

ALTERNATIVE ANSWER

(A) No. LLL is an instrumentality of the national government which cannot be taxed by local government units. LLL is not a government-owned or controlled corporation taxable for real property taxes (City of LapuLapu v. PEZA, G.R. No. 184203, November 26, 2014).

(B) No. As a rule, properties owned by the Republic of the Philippines are exempt from real property tax except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person. When LLL leased out portions of the reclaimed properties to taxable entities, such as the popular fast food restaurants, the reclaimed properties are subject to real property tax (Sec. 234(a), Local Government Code; GSIS v. City Treasurer and City Assessor of the City of Manila, G.R. No. 186242, December 23, 2009).

XVII

Mr. L owned several parcels of land and he donated a parcel each to his two children. Mr. Lacquired both parcels of land in 1975 for P200,000.00. At the time of donation, the fair market value of the two parcels of land, as determined by the CIR, was P2,300,000.00; while the fair market value of the same properties as shown in the schedule of values prepared by the City Assessors was P2,500,000.00. What is the proper valuation of Mr. L’s gifts to his children for the purpose of computing donor’s tax? (3%)

SUGGESTED ANSWER

The valuation of Mr. L’s gift to his children is the fair market value (FMV) the property at the time of donation. The FMV is the higher of the EMV as determined by the Commissioner, or the FMV as shown in the schedule of values fixed by the provincial and city assessors. In this case, for the purpose of computing donor’s tax, the proper valuation is the value prepared by the City Assessors amounting to P2,500,000.00, because it is higher than the FMV determined by the CIR (Sec. 102 in relation to Sec. 88(B), NIRC).

XVIII

Under the Tariff and Customs Code, as amended:

(A) When does importation begin and when is it deemed terminated? (2%)

(B) In what case/s is the decision of the Collector automatically reviewed by the Commissioner of Customs? In what instance/s is the decision of the Commissioner automatically appealed to the Secretary of Finance? (4%)

SUGGESTED ANSWER

(A) Importation begins when the carrying vessel or aircraft enters the jurisdiction of the Philippines with intention to unlade therein. Importation is deemed terminated upon payment of the duties, taxes, and other charges due upon the articles, or secured to be paid, at a port of entry and the legal permit for withdrawal shall have been granted, or in case said articles are free of duties, taxes and other charges, until they have legally left the jurisdiction of Customs (Sec. 1202 of the Tariff and Customs Code).

(B) Whenever the decision of the Collector of Customs in any seizure proceedings is adverse to the government, the said decision is automatically elevated to the Commissioner of Customs for review, and if such decision is affirmed by the Commissioner of Customs, the same shall be automatically elevated to and be finally reviewed by the Secretary of Finance (Sec. 2315 of the Tariff and Customs Code):

XIX

In 2014, M City approved an ordinance levying customs duties and fees on goods coming into the territorial jurisdiction of the city. Said city ordinance was duly published on February 15, 2014 with effectivity date on March 1, 2014.

(A) Is there a ground for opposing said ordinance? (2%)

(B) What is the proper procedural remedy and applicable time periods for challenging the ordinance? (4%)

SUGGESTED ANSWER

(A) Yes, on the ground that the ordinance is ultra vires. The taxing powers of local government units, such as M City, cannot extend to the levy of taxes, fees and charges already imposed by the national government, and this includes, among others, the levy of customs duties under the Tariff and Customs Code (Sec. 133(e), Local Government Code).

(B) Any question on the constitutionality or legality of tax ordinances may be raised on appeal within 30 days from the effectivity to the Secretary of Justice. The Secretary of Justice shall render a decision within 60 days from the date of receipt of the appeal. Thereafter. within 20 days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file the appropriate proceedings with the Red Court (Sec. 187, Local Government Code).

After filing an Information for violation of Section 254 of the National Internal Revenue Code (Attempt to Evade or Defeat Tax) with the CTA, the Public Prosecutor manifested that the People is reserving the right to file the corresponding civil action for the recovery of the civil liability for taxes. As counsel for the accused, comment on the People’s manifestation. (3%)

SUGGESTED ANSWER

The manifestation is not proper. The criminal action and the corresponding civil action for the recovery of the civil liability for taxes and penalties shall at all times be simultaneously instituted with, and jointly determined in the same proceeding before the Court of Tax Appeal (CTA). The filing of the criminal action is deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized (Sec. 7(b)(1) of Republic Act. No. 9282: Judy Anne Santos v. People, G.R. No. 173176, August 26, 2008, 563 SCRA 341).

XXI

MMM, Inc., a domestic telecommunications company, handles incoming telecommunications services for non-resident foreign companies by relaying international calls within the Philippines. To broaden the coverage of its telecommunications services throughout the country, MMM, Inc. entered into various interconnection agreements with local carriers. The non-resident foreign corporations pay MMM, Inc. in US dollars inwardly remitted through Philippine banks, in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas. MMM, Inc. filed its Quarterly VAT Returns for 2000. Subsequently, MMM, Inc. timely filed with the BIR an administrative claim for the refund of the amount of P6,321,486.50, representing excess input VAT attributable to its effectively zero-rated sales in 2000. The BIR ruled to deny the claim for refund of MMM, Inc. because the VAT official receipts submitted by MMM, Inc. to substantiate said claim did not bear the words “zero-rated” as required under Section 4.108-1 of Revenue Regulations (RR) No. 7-95. On appeal, the CTA division and the CTA en banc affirmed the BIR ruling. MMM, Inc. appealed to the Supreme Court arguing that the NIRC itself did not provide for such a requirement. RR No. 7-95 should not prevail over a taxpayer’s substantive right to claim tax refund or credit.

(A) Rule on the appeal of MMM, Inc. (3%)

(B) Will your answer in (A) be any different if MMM, Inc. was claiming refund of excess input VAT attributable to its effectively zero-rated sales in 2012? (2%) ;

SUGGESTED ANSWER

(A) The appeal of MMM, Inc. must be denied. MMM, Inc.’s position that the requirements under RR No. 7-95 should not prevail over a taxpayer’s substantive right to claim tax refund or credit is unmeritorious. The Secretary of Finance has the authority to promulgate the necessary rules and regulations for the effective enforcement of the provisions of the National Internal Revenue Code (NIRC). Such rules and regulations are given weight and respect by the courts in view of the rule-making authority given to those who formulate them and their specific expertise in their respective fields. An applicant for a claim for tax refund or tax credit must not only prove entitlement to the claim, but also compliance with all the documentary and evidentiary requirements. Consequently, the Court of Tax Appeal (CTA), and the CTA en banc correctly ruled that the failure to indicate the words “zero-rated” on the invoices and receipts issued by a taxpayer, would result in the denial of the claim for refund or tax credit (Eastern Telecommunications Philippines, Inc. v. CIR, G.R. No. 183531, March 25, 2015).

(B) No, my answer will not be different if the claim for refund is for effectively zero-rated sales in 2012. The requirement to print the word “zero-rated” is no longer by mere regulations, but is now clearly provided by law as follows — “If the sale is subject to žero percent (0%) value-added tax, the term “zero-rated sale” shall be written or printed prominently on the invoice or receipt. Failure to comply with this invoicing requirement is fatal to a claim for refund of input taxes attributable to the zero-rated sale (Sec. 113(B)(2)(c), NIRC). Moreover, as recently ruled by the Supreme Court, the subsequent incorporation of Sec. 4.108-1 of RR 7-95 in Sec. 113 of the NIRC as introduced in R.A. No. 9337, actually confirmed the validity of the imprinting requirement on VAT invoices or official receipts-a case falling under the principle of legislative approval of administrative interpretation by reenactment (Northern Mindanao Power Corp. v. CIR, G.R. No. 185115, February 18, 2015).

XXII

State the conditions for allowing allowing the following as deductions from the gross estate of a citizen or resident alien for the purpose of imposing estate tax:

(A) Claims against the estate (2%) (B) Medical expenses (2%)

SUGGESTED ANSWER

(A) In order that claims against the estate may be allowed as deductions from the gross estate of a citizen or resident alien for purposes of imposing the estate tax, the law requires that at the time the indebtedness was incurred, the debt instrument was duly notarized. In addition, if the loan was contracted within three (3) years before the death of the decedent, the executor or administrator shall submit a statement showing the disposition of the proceeds of the loan (Sec. 86(a)(1)(c), NIRC).

(B) The conditions for the allowance of medical expenses as deductions from the gross estate of a citizen or resident alien are: (1) the medical expenses must have been incurred within one (1) year before the death of the decedent; (2) that the medical expenses are duly substantiated with receipts; and (3) the total amount thereof, whether paid or unpaid, does not exceed P500,000.00 (Sec. 86A(6), NIRC).

PINAY JURIST

Bar Exam Reviewers and Case Digests

2015 Bar Exam Suggested Answers in Taxation by the UP Law Complex

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