Filpride Resources Incorporated

July 27, 2007 BIR RULING [DA-420-07] DA 516-06 Filpride Resources Incorporated 304 J.P. Rizal Street Mandaluyong City Attention: Ms. Aniebeth S. Dionzon Chief Finance Officer Gentlemen : This refers to your letter dated June 16, 2007 stating that Filpride Resources Incorporated (Filpride) is a domestic corporation registered with the Board of Investments (BOI) as a new industry participant for storage, marketing and distribution of petroleum products on a pioneer status; that as a BOI-registered enterprise, it was granted an income tax holiday (ITH) incentive on its registered project for five years commencing on July 27, 2001 or until July 27, 2006; that Filpride is an industrial customer of Meralco; that on April 9, 2003, the Supreme Court in GR 141314, ordered Meralco to refund its customers the excess utility payments that were collected since 1994; and that subsequently, Filpride received a letter from Meralco informing it that its electric consumption from February 10, 1994 to May 17, 2003 is qualified for refund under Phase IV B in the amount of P458,495.16. Based on the foregoing representations, you now request confirmation of your opinion that the refund to be given by MERALCO to Filpride, which at that time was enjoying an income tax holiday for a period of five (5) years, for excess utility payments is exempt from withholding tax. In reply thereto, please be informed that this Office had already occasion to rule on the matter, when it said in BIR Ruling No. DA097-2006 dated March 8, 2006 , that "Furthermore, the refund that pertains to the excess utility payments made during the period when SPC was on an ITH is not subject to the 5% gross income tax. SPC will not have any tax benefit from the refund of the excess utility payments. . . . This situation is analogous to the situation in BIR Ruling No. 076-89 dated April 17, 1989, where the BIR said that 'the waiver of interest by the banks on non-trade and trade related indebtedness of GMPI is not subject to income tax considering that the deduction of said interest as expense in prior years did not offset nor reduce the taxable income of GMPI since it was in a financial loss position even without the deduction. (Barnhart-Marrow Consolidated vs. Commissioner of Internal Revenue, 47 BTA 590) (Emphasis supplied). When a creditor cancels a debt as part of a business transaction, the debtor is enriched or its net assets has been increased and, therefore, he realized taxable income (Philippine Fiber Processing Co. vs. CIR, CTA Case No. 1407, December 29, 1966) . However, a transaction whereby nothing of exchangeable value comes to or is received by a taxpayer does not give rise to or create taxable income. (Dallas Transfer and Terminal Warehouse Co. vs. Commissioner of Internal Revenue 5 Cir. 70 F 2d 95, 13 AFTR 930) . Accordingly, the condonation of GMPI's indebtedness by GM-US is not subject to income tax since before and after the condonation GMPI remains insolvent, i.e., in a capital deficiency position. . . ." Thus, SPC is exempt also from the 5% gross income tax under R.A. No. 7916 since the refund of excess utility payments in its favor will not give rise to or create a taxable income ." (Emphasis supplied) CSAcTa Later, in BIR Ruling No. DA516-2006 dated August 25, 2006 , this Office in reiterating the above-cited ruling, likewise ruled that "Applying the foregoing in the instant case, and considering that BITCAI is an organization exempt from income tax and it has not been engaged in any profitable activities that would result in the imposition of taxes, thereby it has not claimed the above utility payments as deductions for income tax purposes, the refund of the excess utility payments in its favor, therefore, will not give rise to or create a taxable income. Consequently, said refund is not subject to the withholding tax prescribed under Revenue Regulations No. 8-2005. . . ." At this juncture, observation has to be made of the fact that since Filpride was on ITH from July 27, 2001 to July 27, 2006, it did not benefit from the utilities expense which it incurred during such period. The receipt of the refund from MERALCO will not give rise to a taxable transaction, as Filpride did not receive anything of exchangeable value from it. SUCH BEING THE CASE, this Office hereby confirms your opinion that the refund which Filpride will receive from MERALCO is not a taxable event and therefore NOT subject, to income tax, and consequently, to withholding tax. 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, (SGD.) JAMES H. ROLDAN Assistant Commissioner Legal Service