Moriroku Philippines, Inc.

October 23, 2007 BIR RULING [DA-551-07] DA 516-06 Moriroku Philippines, Inc. 115 North Science Avenue Laguna Technopark, Bian Laguna Attention: Fumiaki Sato President & General Manager Gentlemen : This refers to your letter dated March 9, 2007 stating that your company is a Philippine Export Processing Zone (PEZA) registered enterprise and from 1996-2001 or six (6) years to be exact, was enjoying an income tax holiday (ITH); that currently it is enjoying 5% preferential tax rate; that it is likewise registered with the Securities and Exchange Commission (SEC) under SEC Registration No. ASO94-004445 dated May 18, 1994; and that it is primarily organized "To design, manufacture, assemble, construct, fabricate, install, repair, process, develop, sell on wholesale basis, import, export, buy and generally to deal in components and spare parts of whatever kind and variety, such as, but not limited to, automobiles and motorcycles, electric appliances and others; to install, construct, erect, build plants, factories, buildings and shops for industrial use; and to acquire, lease or deal generally in property, building, machineries, equipment, machinery parts and materials necessary or useful in the construction, installation, repair and maintenance of such service parts." Based on the foregoing representations, you now request confirmation of your opinion that the refund to be given by MERALCO to Moriroku Philippines, Inc., which at that time was enjoying an income tax holiday for a period of six (6) 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) AcaEDC 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 Moriroku Philippines, Inc. is exempt from income tax, it did not benefit from the utilities expense which it incurred. The receipt of the refund from MERALCO will not give rise to a taxable transaction, as Moriroku Philippines, Inc. did not receive anything of exchangeable value from it. SUCH BEING THE CASE, this Office hereby confirms your opinion that the refund which Moriroku Philippines, Inc. 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. SCIAaT Very truly yours, (SGD.) JAMES H. ROLDAN Assistant Commissioner Legal Service