Miriam Gonzaga-Daway

December 13, 2007 BIR RULING [DA-645-07] Sec. 22 (B), NIRC; BIR Ruling No. DA-755-2006 Miriam Gonzaga-Daway Attorney-at-Law Unit 1505 OMM Bldg., San Miguel Ave. Ortigas Center, Pasig City M a d a m : This refers to your letter dated November 28, 2007, in behalf of your client, LANDCO NE Resources, Inc. (LANDCO, for short), requesting legal opinion on the possible tax consequences as a result of the consummation of the Joint Venture Agreement your client had entered into with ARCINUE ACUNA CONSTRUCTION VENTURES, INC. (Landowner) for the development of the latter's property located at Calasiao, Pangasinan. DaEATc It is represented that on November 19, 2007, LANDCO entered into a Memorandum of Agreement (MOA) with Arcinue Acuna Construction Ventures, Inc. (Landowner), for the development of the latter's property located at Calasiao, Pangasinan, covering an area of 31.6 hectares into a residential subdivision; that the said agreement provides that LANDCO shall provide the expertise and manpower and shall assume all expenses in the planning and construction/development of the subdivision and in return, the parties agree that the Developer, LANDCO shall receive 50% of the resultant subdivided/developed lots and the remaining 50% shall be for the Landowner. Hence, you request for opinion, to quote: "1. What would be the taxes involved when Arcinue Acuna Construction Ventures, Inc. transfer to LANDCO NE Resource Ventures, Inc., fifty percent (50%) of the resultant subdivided lots in return for LANDCO's development? "2. Would this be subject to capital gains tax and documentary stamp tax (and if there is, how much) when the parties eventually execute and register a Memorandum of Sharing of Subdivided lots or a Deed of Assignment in favor of LANDCO NE Resource Ventures, Inc., for the transfer of titles covering the developer's share in the project? CAaDSI "3. What would be the taxes involved when the parties eventually sell their respective shares of saleable lots to third party?" In reply, please be informed that pursuant to Section 22 (B) of the Tax Code of 1997, the term "corporation" includes partnerships, no matter how created or organized, joint stock companies, joint accounts ( cuentas en participacion ), 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. P.D. No. 929 amended the definition of the taxable corporation so as not to include joint venture formed for the purpose of undertaking construction projects. The reasons for such amendment are: (1) Local contractors contribute substantially to the development program of the country; (2) Local contractors are at a disadvantage in competitive bidding with foreign contractors in view of limited capital and financial resources; (3) In order to be able to compete with big foreign contractors, it may be necessary for them to enter into joint ventures to pool their limited resources in undertaking big construction projects; (4) To assist them in achieving competitiveness with foreign contractors, the joint ventures formed by them should not be considered as additional income tax lien. Considering therefore, that it is the intention of the legislature to exclude joint venture or consortium formed for the purpose of undertaking construction projects from the definition of taxable corporation, this Office hereby opines that the joint venture by and between the Owner and the Developer is not subject to income tax under Section 27 of the Tax Code of 1997. aEcDTC The assignment by the Owners to the Developer of its corresponding share of the resultant subdivision lots in the aforesaid project is not a taxable event that will give rise to the payment of regular income tax/creditable withholding tax, because the aforestated assignment is a mere return of capital contribution, and therefore not a taxable event. (BIR Ruling No. DA-192-2001 dated October 17, 2001) The Memorandum of Sharing whereby the Owners and the Developer will allocate unto each other their shares in the saleable area, in consideration of their respective contributions is not subject to the documentary stamp tax imposed under Section 196 of the Tax Code of 1997, because the allocation is made without monetary consideration and is not in connection with a sale. The allocation is made merely to segregate the saleable area between the parties, as the return of the capital which each has contributed. However, the acknowledgement to said Memorandum of Sharing is subject to the documentary stamp tax pursuant to Section 188 of the Tax Code of 1997. (BIR Ruling No. DA-240-2001 dated November 16, 2001) EADCHS The transfer is also not subject to VAT since under Section 105 of the Tax Code of 1997, any person who, in the course of trade or business, sells, barters, exchanges, leases goods or properties, renders services and any person who imports goods shall be subject to VAT imposed in Sections 106 to 108 of the same Tax Code. Hence, by contributing their parcels of land, the Owners, neither sell, barter, exchange goods, properties nor render services to be subject to VAT. (BIR Ruling No. DA-240-2001 dated November 16, 2001; BIR Ruling No. DA-115-2001 dated September 5, 2001) It is understood however, that upon the subsequent disposition by the co-venturers of the areas allocated to them, the gain that may be realized by them from such sale will be subject to the creditable withholding tax under Revenue Regulations (RR) No. 2-98, as amended by RR No. 6-2001 or capital gains tax under Section 24 (D) (1), as the case may be. Moreover, such sale shall be subject to the documentary stamp tax imposed under Section 196 of the Tax Code of 1997, based on the gross selling price or fair market value of the property, whichever is higher. Furthermore, the said sale shall likewise be subject to VAT. Finally, the joint venture or the party who undertakes the development of the project shall file an annual Information Return and other returns required to be filed with the RDO where it is registered or required to be registered. This ruling is being issued on the basis of the foregoing facts as represented. However, if upon investigation, it will be ascertained that the facts are different, then this ruling shall be considered as null and void. SHIcDT Very truly yours, Commissioner of Internal Revenue By: (SGD.) JAMES H. ROLDAN Assistant Commissioner Legal Service