Ark Phil Information Technology Solutions, Inc.

July 30, 2008 BIR RULING [DA-(IL-007) 086-08] R.A. 7916; DA698-06 Ark Phil Information Technology Solutions, Inc. 28th Floor Tower 2 The Enterprise Center 6766 Ayala Avenue Makati City Attention: Mr. Vladimir C. de Ramos President and Chief Operating Officer Gentlemen : This refers to your letter dated June 26, 2008 requesting for a confirmation that as a PEZA-registered Ecozone IT (Export) Enterprise, you are entitled to all the incentives granted to non-pioneer projects under R.A. 7916. It is represented that the Ark-Phil Information Technology Solutions, Inc. (Ark-Phil) is a corporation duly registered with the Securities and Exchange Commission (SEC) under SEC Registration No. 18618 dated December 2, 2007; that it is organized primarily to conduct and carry on business in the field of information technology by providing solutions, technical and professional consulting services, application development and maintenance services, supplemental technical staffing services and technical training both in the local and foreign market, with full emphasis on the export of above services; that it is likewise registered with the Philippine Economic Zone Authority (PEZA) under Certificate of Registration No. 08-10-IT dated February 28, 2008; and that it seeks clarification on the following incentives granted to PEZA registered enterprises: 1. Corporate income tax holiday for four (4) years for original projects effective on the committed start of commercial operations, or the actual start of commercial operations, whichever is earlier; Income tax holiday entitlement for the original project can also be extended for another three (3) years provide specific criteria are met for each additional year and prior PEZA approval is obtained; duly approved and registered "Expansion" and "New" projects are entitled to a three-year, and four-year ITH, respectively; AHcaDC 2. Tax and duty free importation of merchandise which includes raw materials, capital equipment, machinery and spare parts; 3. Exemption from wharfage dues and export tax, impost and fees; 4. VAT zero-rating of local purchases subject to compliance with BIR and PEZA requirements; and 5. Exemption from the payment of any and all local government imposts, fees, licenses or taxes except real estate tax; however, machinery installed and operated in the ecozone for manufacturing, processing or for industrial purposes shall not be subject to payment of real estate taxes for the first three (3) years of operation of such machinery, production equipment not attached to real estate shall be exempt from such real property taxes. In reply, please be informed that Section 2.57.5 (B) of Revenue Regulations No. 2-98, as amended, is explicit in its provisions that the expanded withholding tax does not apply to income payments to persons enjoying exemption from payment of income taxes pursuant to the provisions of any law, general or applied. PEZA registered enterprises enjoy exemption from payment of income taxes pursuant to the provisions of Section 39 (a) (1) of Executive Order No. 226, otherwise known as the Omnibus Investments Code of 1987, such as the income tax holiday. In particular, Section 2.57.5 (B) (2) of Revenue Regulations No. 2-98, as amended by Section 4 of Revenue Regulations No. 14-02, provides as follows: SEC. 4. Exemption from Withholding. The withholding of creditable withholding tax prescribed in these Regulations shall not apply to income payments made to the following: DaIACS xxx xxx xxx (B) Persons enjoying exemption from payment of income taxes pursuant to the provisions of any law, general or special, such as but not limited to the following: xxx xxx xxx (2) Corporations duly registered with the Board of Investments, Philippine Export Processing Zones and Subic Bay Metropolitan Authority enjoying exemption from income tax pursuant to E.O. 226, as amended, R.A.7916, the Omnibus Investment Code of 1997, and R.A. 7227, as amended, respectively; xxx xxx xxx Such being the case, Ark-Phil is exempt from the 1% withholding tax on income payments made by the top 10,000 corporations. Accordingly, since it is a PEZA registered enterprise still enjoying ITH incentive under a special law and the 5% preferential tax incentive from the PEZA, all payments received by it from its customers, whether ECOZONE registered or customs territory enterprises are exempt from the withholding tax. (BIR Ruling No. DA-381-2000 dated November 7, 2000) Further, Section 2 (nn), Rule I of the implementing Rules of R.A. No. 7916 defines the term "gross income" as follows: "(nn) "Gross Income" for purposes of computing the special tax due under Section 24 of the Act refers to gross sales and gross revenues derived from business activity within the ECOZONE, net of sales discounts, sales returns and allowances and minus costs of sales or direct costs but before any deduction is made for administrative expenses or incidental losses during a given taxable period. The allowable deductions from "gross income" are specifically enumerated under Section 2, Rule XX of these Rules." The definition of "gross income" limits the application of the preferential tax rate of 5% to income derived from the registered activity by an ECOZONE enterprise. Thus, any income derived by a registered enterprise that is not related to its registered activity is not entitled to the preferential tax rate of 5%. Instead, such income derived from an unregistered activity shall be subject to regular internal revenue tax as provided under Section 1 (1st par.) of Revenue Regulations No. 20-02. Further still, Section 4.108-5 (b) (3) of Revenue Regulations No. 16-2005, as amended by Revenue Regulations No. 4-2007, provides that "(b) Transactions Subject to Zero Percent (0%) VAT Rate. The following services performed in the Philippines by a VAT-registered person shall be subject to zero percent (0%) VAT rate: TDCcAE xxx xxx xxx (3) Services rendered to persons or entities whose exemption under special laws or internal agreements to which the Philippines is a signatory effectively subjects the supply of such services to zero percent (0%) rate;" Accordingly, any sale of goods or services to Ark-Phil, a PEZA registered enterprise, is legally entitled to zero percent (0%) VAT. Finally, with respect to item no. 5, this Office cannot give its opinion on the matter since the same is beyond the ambit of its jurisdiction. This ruling is being issued on the basis of the foregoing facts as represented. If upon investigation, it will be discovered 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