BIR Ruling [DA-310-03]

September 23, 2003 BIR RULING [DA-310-03] 108; P.D. 1869 VAT Ruling No. 30-99; DA-036-2002 Perlas, De Guzman, Antonio & Herbosa Unit 2603, 26/F Antel Global Corporate Center, Doa Julia Vargas Avenue, near cor. Meralco Ave. Ortigas Centre, Pasig City Attention: Atty. Rodolfo P. De Guzman, Jr. Counsel Gentlemen : This refers to your letter dated September 4, 2003, requesting on behalf of your client, Palmgold Corporation ("Palmgold"), for a confirmation of your opinion that Palmgold, by virtue of its contractual relationships with the Philippine Amusement and Gaming Corporation (PAGCOR) is exempt from income tax and consequently to the withholding tax. It is represented that Palmgold is a foreign corporation duly organized, existing and registered at the Republic of Malaysia and duly represented in the Philippines by Pacific Palm Corporation, a corporation duly organized under the Philippine Laws with SEC Registration No. A200113704; that PAGCOR, on the other hand, is a government-owned and-controlled corporation which has the exclusive franchise to operate gambling casinos and conduct other games of chance pursuant to its charter, Presidential Decree No. 1869 dated July 11, 1983; that on February 15, 2002, PAGCOR and Palmgold entered into a contract whereby Palmgold undertook to establish slot machine arcades at the 2nd, 3rd, and 5th levels of Pan Pacific Hotel in Malate, Manila and at the basement level of Networld Hotel in Pasay City, providing the same structure for slot machines, including the software and hardware necessary for their computerized operation and networking; that in consideration, Palmgold will receive a certain percentage of the gross revenue after taxes; and that PAGCOR, on the other hand, will directly operate and manage the arcades and as such, will be responsible for operational expenses, including marketing and promotion, as well as salaries and other benefit of PAGCOR employees in the arcade. In reply, please be informed of the following pertinent provisions of Section 13(2)(a) and (b) of P.D. No. 1869, which provide, viz. : (2) Income and other taxes (a) Franchise Holder: No tax of any kind or form, income or otherwise, as well as fees, charges or levies of whatever nature, whether National or Local, shall be assessed and collected under this Franchise from the Corporation, nor shall any form of tax or charge attach in any way to the earnings of the Corporation, except a Franchise Tax of five (5%) percent of the gross revenue or earnings derived by the Corporation from its operation under this Franchise. Such tax shall be due and payable quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or description, levied, established or collected by any municipal, provincial, or national government authority. CScaDH (b) Others: The exemption herein granted for earnings derived from the operations conducted under the franchise, specifically from the payment of any tax, income or otherwise, as well as any form of charges, fees or levies, shall inure to the benefit of and extend to corporation(s), association(s), agency(ies), or individual(s) with whom the Corporation or operator has any contractual relationship in connection with the operations of the casino(s) authorized to be conducted under this Franchise and to these receiving compensation or other remuneration from the Corporation or operator as a result of essential facilities furnished and/or technical services rendered to the Corporation or operator." In VAT Review Committee Ruling No. 030-99 dated March 18, 1999, it has been ruled that all legislative franchise grantees, except only "electric, gas and water utilities" have been expressly subjected to the 10% VAT pursuant to Section 102, old NIRC, as amended by R.A. No. 7716 (now Sec. 108, Tax Code of 1997). It is equally clear that R.A. No. 8241 did not restore the old tax exemption privilege of PAGCOR under its legislative franchise because its amendment as far as franchise grantees are concerned is limited only to "radio and/or television broadcasting." Therefore, upon effectivity of Section 102 (now Sec. 108) of the NIRC, as amended by R.A. No. 7716, PAGCOR ceased to be embraced by the franchise tax. Instead, it became subject to the 10% VAT, in lieu of all other taxes, pursuant to Sec. 13 of P.D. No. 1869 ( i.e., PAGCOR's Charter), as amended by Sections 3 and 12 of R.A. No. 7716. Since Palmgold is under contractual relationship with PAGCOR by virtue of the aforesaid contract, this Office is of the opinion as it hereby holds that the exemption from taxes, fees and charges enjoyed by PAGCOR is extended to Palmgold pursuant to Section 14(2)(b) of PD 1869. (BIR Ruling No. DA-36-2002 dated August 26, 2002) Therefore, Palmgold is exempt from income tax and consequently to the withholding tax but shall be subject to 10% VAT pursuant to Section 13(2)(b) of Presidential Decree No. 1869 in relation to Section 108 of the Tax Code of 1997. This ruling is being issued on the basis of the foregoing facts as represented. However, if upon investigation, it shall be disclosed that the facts are different, then this ruling shall be considered null and void. AEScHa Very truly yours, Commissioner of Internal Revenue By: (SGD.) JOSE MARIO C. BUAG Deputy Commissioner Legal and Inspection Group