Filinvest Land, Inc.

February 22, 2010 BIR RULING [DA-(JV-009) 031-10] Sec. 22, Joint Venture; DA (JV-020) 537-2009 Filinvest Land, Inc. 173 P. Gomez Street San Juan, Metro Manila Attention: Atty. Juan R. Bernardino, Jr. Tax & Corporate Counsel Gentlemen : This refers to your letter dated November 27, 2009 requesting confirmation of the various tax consequences arising from a Joint Venture Agreement for construction purposes, between Filinvest Land, Inc. and Filrizsam Realty & Development Corp. The facts as represented are as follows: Filinvest Land, Inc. ("FLI'', for brevity), a corporation duly organized and existing under the laws of the Republic of the Philippines, is engaged in the business of acquiring, developing and selling real estate, including commercial buildings, residential subdivisions and condominium units. Filrizsam Realty & Development Corp. ("FRDC" for brevity) is a corporation duly organized and existing under the laws of the Republic of the Philippines, and is the registered owner of a parcel of land located in Santiago de Fuego, General Trias, Cavite, covered by Transfer Certificate of Title No. T-62244 of the Registry of Deeds of the Province of Cavite, with an area of 83,097 square meters, more or less, (hereinafter referred to as the "Property"). On September 7, 2005, FLI, as the developer, entered into a Development Agreement with FRDC for the horizontal development of the abovementioned Property. The salient portions of the Development Agreement are as follows: CAScIH 1. FLI shall undertake, cause, oversee, coordinate and manage the performance of all the necessary work for the purpose of constructing, developing, and completing the development of the subject real property, which development shall include improvements and facilities as agreed upon; 2. FLI will shoulder all the equipment, engineering, materials, supplies and labor expenses incurred relative to the construction, development, and completion of the development of the subject real property; 3. For and in consideration of the development obligations and undertakings assumed by the parties pursuant to the Development Agreement, FLI will receive sixty percent (60%) of the saleable lots within the projected area resulting from the development project. The remaining forty percent (40%) shall be for FRDC; and 4. Upon approval of the subdivision plan by the proper government agencies, the parties shall allocate the saleable lots in accordance with their aforesaid sharing. Based on the foregoing facts, you are requesting confirmation that: 1. The Development Agreement between FLI and FRDC for the development of the subject real property in Santiago de Fuego, General Trias, Cavite, into a residential subdivision will not give rise to a taxable joint venture as provided under Section 22 (B), in relation to Section 27 (A), both of the Tax Code of 1997, as amended; 2. The allocation of saleable lots, in accordance with the agreement between the parties (60% for FLI and 40% for FRDC) , in consideration of their respective contributions is not a taxable event and is not subject to income tax, and, consequently, withholding tax, and value-added tax (VAT), since said transfer/allocation is in fact a mere return of capital that each has contributed to the joint venture; and SEIaHT 3. The Partition Agreement whereby FLI and FRDC shall allocate unto each other their share in the saleable lots in consideration of their respective contributions, are not subject to the Documentary Stamp Tax (DST) imposed under Section 196 of the NIRC, as amended, nor to any income tax and, consequently, withholding tax, since the transfer of the Property and the allocation are made without monetary consideration and the same are not in connection with any sale. Rather, the transfer/partition is made merely to account for the respective shares of the parties in the Properties and to segregate the saleable lots between them, representing the return of capital which each contributed. However, it is understood that should FLI and/or FRDC sell any of the saleable lots/units respective allocated to them, to third parties, the gain that may be realized from said sale will be subject to regular corporate income tax at the rate of 30% in accordance with Section 27 (A) of the Tax Code of 1997, as amended, and consequently to withholding tax as implemented under Revenue Regulations No. 2-98, as amended. In reply thereto, please be informed as follows: Section 22 (B) of the Tax Code of 1997, as amended, states as follows: "Section 22. Definitions. When used in this Title: xxx xxx xxx. (B) The term 'corporation' shall include 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. . . . ." (underscoring supplied) The abovementioned exemption was initiated under Presidential Decree (PD) No. 929, dated May 4, 1976, which amended the definition of a "taxable" corporation in the NIRC, as amended, to specifically exclude joint ventures formed for the purpose of undertaking construction projects. Said PD instituted the amendment of the definition of the term "taxable" corporation in recognition of the following situations: (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 local contractors to enter into joint ventures to pool their limited resources in undertaking big construction projects. Hence, to assist the local contractors in achieving competitiveness with foreign contractors, the joint ventures formed by said local contractors were thus deemed as not falling under the definition of a "taxable" corporation, and thus not subject to income tax. This was, and still is, the intention of the legislature. AaITCH Such being the case, the Development Agreement entered into by and between FLI and FRDC is not subject to the income tax under Section 27 (A) of the Tax Code of 1997, as amended. (BIR Ruling No. DA-694-07 dated December 28, 2007; BIR Ruling No. 693-07 dated December 28, 2007) Moreover, the allocation of the saleable lots between FLI and FRDC, which is done effectively in consideration of the parties' respective contributions, does not constitute a taxable event, as no income is actually realized by either FLI or by FRDC. The Partition Agreement will be executed without consideration and it is not in connection with any sale between the said parties. As has been ruled by the Bureau of Internal Revenue (BIR) on numerous occasions, income, in a broad sense, means all wealth which flows into the taxpayer other than as a mere return of capital (Section 36, Revenue Regulations No. 2) . FLI and FRDC, both having contributed to the development of the property, will not realize any income upon the transfer of the property and allocation of the saleable lots. Hence, there is no income tax and, consequently, withholding tax due on said transfer/allocation. The said transfer/allocation, likewise, is not subject to VAT. Under Section 105 of the Tax Code of 1997, as amended, 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. However, by transferring the property and allocating the saleable lots, neither FLI nor FRDC sells, barters, exchanges goods or property, or renders services to be subject to VAT. (BIR Ruling Nos. DA-655-07 dated December 17, 2007; 240-01 dated November 16, 2001; BIR Ruling No. DA-115-01 dated September 5, 2001) Further, the Partition Agreement whereby FLI and FRDC will allocate unto each other their share in the saleable lots in consideration of their respective contributions, shall not be subject to the DST imposed under Section 196 of the Tax Code of 1997, as amended, considering that, as stated earlier, the transfer/allocation is made without monetary consideration and is not in connection with a sale. In this regard, Section 185 of the Revised Documentary Stamp Tax Regulations (Regulations No. 26) provides that "conveyances of realty not in connection with a sale, to trustees or other persons without consideration are not taxable." Accordingly, since the transfer of the property and the allocation of the saleable lots shall be made without consideration and they will not be in connection with any sale between FLI and FRDC, no DST is due and collectible on the Development Agreement and the planned Partition Agreement. However, the notarial acknowledgments to said Development Agreement and Partition Agreement shall be subject to the DST pursuant to Section 188 of the Tax Code of 1997, as amended, in the amount of Fifteen Pesos (P15.00). FLI and/or FRDC will only realize income upon their respective sales, to third parties, of the saleable units allocated to each of them. In this regard, said sales FLI and/or FRDC, would be subject to regular corporate income tax at 30% in accordance with Section 27 (A) of the Tax Code of 1997, as amended, and consequently to withholding tax as implemented under RR No. 2-98, as amended. Said sales by FLI and/or FRDC to third parties would also be subject to VAT at the rate of 12%, in accordance with Sections 106 of the Tax Code of 1997, as amended. However, the sale of said saleable lots/units may be exempted from VAT in accordance with Section 109 (P) of the same Tax Code. Further, said sales would be subject to the DST at the rate of fifteen pesos (P15.00) for each one thousand pesos (P1,000.00) of the consideration or value of the unit/s sold, in accordance with Section 196 of the same Code. ISADET On the other hand, since under the Development Agreement FLI undertakes to market the saleable lots allocated to FRDC, by virtue of an exclusive marketing agreement, the marketing fees derived by FLI thereof shall be subject to income tax imposed under Section 27 (A) of the Tax Code of 1997, as amended, and consequently, to the withholding tax imposed under Revenue Regulations No. 2-98, as amended, and to the VAT imposed under Section 108 of the same Tax Code. The sale by FLI of the lots allocated to FRDC to third parties by virtue of the Marketing Agreement, shall be subject to income tax and consequently, to the creditable withholding tax (CWT) and to VAT. The CWT attributable thereto shall be credited against the income tax liability of FRDC. Moreover, said sale is subject to the DST imposed under Section 196 of the same Tax Code at the rate above-mentioned. (BIR Ruling Nos. 660-2007 dated December 18, 2007; 621-07 dated December 7, 2007; and 620-07 dated December 7, 2007) Finally, this ruling authorizes the Revenue District Officer of the revenue district where the property is located to issue the corresponding Tax Clearance Certificate (TCL) with regard to the transfer of the titles to the lots to be received by FLI and FRDC based on their respective allocations pursuant to the partition without need of presentation of proof of payment of the capital gains tax or the creditable withholding tax, documentary stamp tax and value-added tax and/or donor's tax. Provided, however, that the parties to the joint venture shall cause the Register of Deeds to annotate on the TCT involved that a development project is being undertaken on the land and is the object of the joint venture between the parties, and that the afore-stated joint venture is held to be a tax-exempt entity pursuant to this Ruling issued by this Office. Provided further, that the parties to the joint venture shall inform the Bureau of Internal Revenue, through the Law Division, of the fulfillment of the requirement on the distribution of the lots in accordance with the allocation ratio in the Partition Agreement. For this purpose, a compliance report of the project indicating the number of lots developed, the respective TCTs and the party in whose name the corresponding title was issued. (BIR Ruling No. DA (JV-055) 557-2008 dated December 19, 2008; DA (JV-020) 537-2009 dated September 14, 2009) 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.) GREGORIO V. CABANTAC Deputy Commissioner