Jimco Development Corporation

October 16, 2008 BIR RULING [DA-(JV-035) 301-08] 22 (B); DA-373-2008; DA-126-2001 Jimco Development Corporation D. Fandio St., Poblacion Alaminos, Laguna Attention: Ms. Mely P. Bejasa Vice-President Gentlemen : This refers to your letter dated July 18, 2008 requesting for exemption from income tax and/or expanded withholding tax, value-added tax and documentary stamp tax on the development of a property in Bo. San Miguel, San Pablo City, Laguna into a socialized and low-cost economic residential subdivision under a joint venture arrangement by and between Jimco Development Corporation (Jimco for brevity) and Mr. Pablito C. Banayo. Documents submitted show that Mr. Pablito C. Banayo is the registered owner of a parcel of land with an area of sixty seven thousand three hundred eighty (67,380) sq.m. covered by Transfer Certificate of Title (TCT) No. 42121, which will be developed into a residential housing to be known as "Coco Villa Subdivision" (the Project) by Jimco, a domestic corporation engaged in the business of developing similarly situated lands for sale to the general public by virtue of a MOA entered into by and between the above-mentioned parties. As a return of their respective contributions, the subdivision's saleable lots in said Project shall be allocated to Jimco and Mr. Pablito C. Banayo on 60%-40% basis, correspondingly, pursuant to a Decision of the Arbitration Committee of the City of San Pablo dated September 1, 1999, amending the Memorandum of Agreement (MOA) which was earlier executed. In reply, please be informed as follows: Pursuant to Section 22 (B) of the Tax Code of 1997, the term corporation includes partnership, 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. TCIEcH 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 an additional income tax lien. Considering the clear provision of Sec. 22 (B) which manifests the intention of the legislature to exclude from the definition of taxable corporation joint venture/s (or consortium) formed for the purpose of undertaking construction projects, this Office hereby confirms your opinion that the joint venture of Jimco and Mr. Pablito C. Banayo is not a corporation subject to corporate income tax. However, for VAT purposes, the joint venture (or consortium) is by itself a taxable entity. (BIR Ruling No. DA-373-2008 dated June 19, 2008) The allocation of the lots in the Project between Jimco and Mr. Pablito C. Banayo, in consideration of their respective contributions, as stipulated in the Decision of the Arbitration Committee is not a taxable event and is not subject to income tax or any withholding tax because the allocation is a mere return of capital that each has contributed. (BIR Ruling No. DA-192-2001 dated October 17, 2001) 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 service and any person who imports goods shall be subject to VAT imposed in Sections 106 to 108 of the same Tax Code, as amended. Hence, by contributing its parcel of land, Mr. Pablito C. Banayo, neither sells, barters, exchanges goods, property nor renders service to be subject to VAT. (BIR Ruling No. DA-240-2001 dated November 16, 2001) cSATDC The Deed of Partition whereby Jimco and Mr. Pablito C. Banayo will allocate unto each other their shares in consideration of their respective contributions is not subject to the documentary stamp tax imposed under Section 196 of the Tax Code of 1997, as amended, income tax and any withholding tax because the allocation is made without monetary consideration and is not in connection with a sale. The partition is made merely to segregate the saleable area between the parties, as the return of the capital which each has contributed. However, the acknowledgment to said Deed of Partition is subject to the documentary stamp tax pursuant to Section 188 of the Tax Code of 1997, as amended. It is understood however, that upon 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 expanded withholding tax under RR No. 2-98, as amended by RR No. 6-2001 or capital gains tax under Sections 24 (D) (1) or 27 (D) (5), 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, as amended, based on the gross selling price or fair market value of the properties, whichever is higher. Furthermore, the said sale shall likewise be subject to VAT. This will authorize the Revenue District Officer (RDO) of the revenue district where the property is located to issue the corresponding Certificate Authorizing Registration (CAR) and Tax Clearance Certificate (TCL) involving the transfer of the titles to the parties based on their respective allocations pursuant to the Deed of Partition, without need of the presentation of proof of payment of the expanded withholding tax, value-added tax and the corresponding documentary stamp tax. Provided, that the parties to the joint venture shall cause the Register of Deeds to annotate on the TCT that a development project is being undertaken on the land and is the object of the joint venture between the parties, and that the aforestated joint venture is held to be a tax-exempt entity pursuant to this Ruling issued by this Office. Provided further, that 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 Decision of the Arbitration Committee which was an amendment to the MOA. For this purpose, a compliance report of the project indicating the number of lots developed/built, the respective TCTs and the party in whose name the corresponding title was issued. (BIR Ruling No. DA-373-2008 dated June 19, 2008) aHDTAI 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. Very truly yours, Commissioner of Internal Revenue By: (SGD.) JAMES H. ROLDAN Assistant Commissioner Legal Service