BIR Ruling [DA-338-05]

August 5, 2005 BIR RULING [DA-338-05] 22 (B); DA-247-2001; DA-149-2005 Moldex Realty Inc . Moldex Bldg., Ligaya St., Corner West Avenue, Quezon City Attention: Mr. Maurito C. Tarobal AVP-Finance Gentlemen : This refers to your letter dated July 14, 2005 requesting for confirmation of your opinion that: 1. The Memorandum of Agreement ("MOA"), copy of which will be annotated at the back of the title to the PROPERTY, executed by Moldex Realty, Inc. (hereinafter referred, to as the "DEVELOPER") and Octavio Ramon L. Lijauco, married to Susan H. Lijauco; and Ursula Consuelo L. Lijauco, single, both of legal age, Filipinos, and with common address at Rizal Street, Bgy. Labas, Sta. Rosa, Laguna, and Jose M. League, of legal age, married to Julia Laserna, Filipino, and with address at St. Francis Subdivision, Bgy. Balibago, Sta. Rosa, Laguna, collectively referred to herein as the OWNERS, does not give rise to a taxable joint venture within the meaning of Section 22(B) of the Tax Code, as amended. The MOA is subject only to the documentary stamp tax of P15.00 imposed on the notarial acknowledgment of the MOA under Section 188 of the Tax Code, as amended. 2. The allocation of the residential lots out of the PROJECT to the DEVELOPER commensurate to and in consideration of its respective contribution by way of the development of the PROPERTY referred to in the MOA, is not a taxable event, and thus, not subject to income/expanded withholding tax and/or capital gains tax, the allocation being a mere return of the capital that each has contributed to the PROJECT. 3. The contribution of the OWNERS to the PROJECT in the form of real property and the allocation of the subdivided lots among the DEVELOPER and the OWNERS in exchange for their respective contributions to the PROJECT, are not subject to the capital gains tax imposed under Section 24(D) of the Tax Code, as amended but only to the documentary stamp tax of P15.00 imposed on the notarial acknowledgment under Section 188 of the same Code. aSIETH The facts, as represented, are as follows: 1. The OWNERS are the legitimate and registered owners of that certain parcel of land, referred to herein as the "PROPERTY", identified as Lot 1409 of the Sta. Rosa Friar Lands Estates, situated in Bo. Macabling, Sta. Rosa, Province of Laguna, containing an area of Twenty-Nine Thousand Three Hundred Ninety-Nine (29,399) square meters, more or less, covered by Transfer Certificate of Title No. 23425, of the Registry of Deeds for Laguna, which property is more particularly described as follows: Lot 1409 (Sta. Rosa Friar Lands Estates) Transfer Certificate of Title No. 23425 "A parcel of land situated in the Municipality of Sta. Rosa, Province of Laguna; Bounded on the North by Lot 1400; on the East by Lot Nos. 1399 and 1398; on the South by Lot No. 1410; and on the West by Lot No. 1406, containing a total area of TWENTY-NINE THOUSAND THREE HUNDRED NINETY-NINE (29,399) SQUARE METERS; more or less" 2. The OWNERS wish to cause the development of the PROPERTY as an expansion phase of Metrogate Santa Rosa, a subdivision owned by the DEVELOPER and herein referred to as the SUBDIVISION; 3. The DEVELOPER, being confident of the feasibility and viability of the PROJECT, has proposed to the OWNERS to undertake the development of the PROPERTY with all the improvements in accordance with the concept and master development plan of the SUBDIVISION, and the marketing and selling of the individual saleable units of inventory that will be derived therefrom; 4. Moldex Realty Marketing, Inc. ("MARKETING AGENT"), being likewise confident of the over-all marketability and saleability of the PROJECT, has likewise proposed to the OWNERS to undertake the marketing and selling of all saleable inventories that will be generated from the PROPERTY; 5. The OWNERS, having evaluated the proposals, and being cognizant of the track record and performance of both DEVELOPER and MARKETING AGENT, and having full trust and confidence in their capacity and capability, have accepted the respective proposals for the development of the PROPERTY as an integral part of the PROJECT and the marketing and sale of the individual lots therein, subject to payment of compensation as spelled out in the MOA; 6. For and in consideration of the foregoing premises, the OWNERS have granted unto the DEVELOPER full and irrevocable rights and authority to subdivide and develop the PROPERTY as an additional phase and integral part of the PROJECT, and likewise unto the MARKETING AGENT full and irrevocable rights and authority to market and sell all the individual lots therein on an exclusive basis; 7. Based on the joint venture agreement, which has been annotated in the title to the PROPERTY, it is the intention of the parties that to cause the development of the PROPERTY, the OWNERS will be contributing in the joint venture the PROPERTY and the DEVELOPER the required development works. The parties agree to share in the net saleable area by assigning and transferring 50% of individual saleable lots to the OWNERS and 50% to the DEVELOPER; DcIHSa 8. After approval of the subdivision plan and verified survey report for the PROPERTY, each individual and saleable lot shall be registered and titled under the name of its corresponding lotholder. All roadlots and open spaces shall be titled under the joint ownership of the OWNERS and DEVELOPER. The annotation on the mother title regarding the joint venture agreement shall be cancelled automatically with the generation of the titles to the individual lots resulting from the subdivision of the PROPERTY; 9. The allocation and distribution of the individual subdivided lots to the co-venturers are mere return/distribution of their investment in the joint venture project and said transaction is not in the nature of sales, barters, exchanges and leases of goods and properties, rendering of services as defined under Section 105 of the 1997 Tax Code, as amended. Therefore, said transactions are not covered by VAT. However, the subsequent sale of the subdivided lots by the co-venturers to their customers are subject to VAT. 10. The contribution of land by the OWNERS to the PROJECT is likewise not subject to capital gains tax presumed to have been realized from the sale, exchange or other disposition of real property because the transfer is not made in the course of business but only as capital contribution to the PROJECT; and 11. The subsequent disposition by the parties under the MOA of the lots allocated to them, the gain that may be realized by them from such sale will be subject to the regular income tax (in the case of the DEVELOPER) and the capital gains tax (in the case of the OWNERS). In reply, please be informed of the following: 1. The MOA executed between Moldex Realty, Inc. and the OWNERS described above is an agreement between the parties to construct and fund the cost of construction of a residential subdivision project which is neither a contract of sale over real property nor an instrument which conveys title to real property. Hence, no income tax or documentary stamp tax (DST) is due upon the execution of the MOA (Section 186 of Revenue Regulations No. 26). However, the notarial acknowledgment on the MOA is subject to the DST on certification pursuant to Section 188 of the 1997 Tax Code. (BIR Ruling No. DA-247-2001 dated November 27, 2001) Section 22(B) of the 1997 Tax Code, provides: "(B) The term corporation shall include partnerships, no matter how created or organized, joint-stock companies, joint accounts (cuentas en participation), associations, or insurance companies, but does not include general professional partnerships and a joint venture or consortium formed for the purpose of undertaking construction projects or engaging in petroleum, coal, geothermal and other energy operations pursuant to an operating or consortium agreement under a service contract with the government. "General professional partnership" are partnerships formed by persons for the sole purpose of exercising their common profession, no part of the income of which is derived from engaging in any trade or business." From the foregoing definition of a corporation, we confirm your opinion that the MOA executed between the parties does not give rise to a taxable joint venture. The parties to a joint venture agreement may file separate income tax returns for their net revenue for the above-mentioned project less their respective proportionate share in the joint venture expenses since the joint venture is not embraced within the meaning of the term "Corporation", hence, not subject to the corporate income tax imposed under Section 27(A) of the 1997 Tax Code. ( BIR Ruling No. 002-97 dated January 14, 1997 ) EACTSH 2. The allocation and distribution of the residential lots to the DEVELOPER and the OWNERS in accordance with their respective equity contributions as stipulated in the MOA is not subject to income tax, withholding tax or capital gains tax, since the allocation/distribution is without consideration, not in connection with a sale and constitutes mere return of capital. It is to be understood, however, that upon subsequent disposition by the parties under the MOA of the individual/subdivided lots allocated to them, the gain that may be, realized by them from such sale will be subject to the regular income tax rate provided under Section 27(A) of the 1997 Tax Code, capital gains tax imposed under Section 24(D) of the same Code, and to the creditable withholding tax under Revenue Regulations No. 2-98, as last amended by Revenue Regulations No. 30-2003. Moreover, said sale shall be subject to the documentary stamp tax imposed under Section 196 of the 1997 Tax Code based on the gross selling price or fair market value of the properties whichever is higher. Furthermore, the said sale shall likewise be subject to VAT. ( BIR Ruling No. DA-262-2001 dated December 18, 2001 ) 3. The contribution of the OWNERS to the PROJECT in the form of real property and the allocation of the subdivided lots among the DEVELOPER and the OWNERS in exchange for their respective contributions, pursuant to the MOA/joint venture agreement are not subject to the capital gains tax imposed under Section 24(D) of the 1997 Tax Code. The OWNERS did not convey or transfer their ownership or interest over their real property when they contributed the aforesaid parcel of land to the joint venture but merely pooled their resources into a common fund. The said contribution constituted their capital contribution to the joint venture project, therefore, such contribution is not a taxable event that will give rise to the payment of regular income tax, creditable withholding tax and capital gains tax because the transfer or conveyance is not in the course of business but a capital contribution. (BIR Ruling No. DA-262-2001 dated November 18, 2001) This ruling is being issued on the basis of the foregoing facts as represented. However, if upon investigation, it will be disclosed that the facts are different, then this ruling shall be considered null and void. Very truly yours, Commissioner of Internal Revenue By: (SGD.) JAMES H. ROLDAN Assistant Commissioner Legal Service