BIR Ruling No. 039-11

February 9, 2011 BIR RULING NO. 039-11 Tax Code, Sections 27 (D) (1), 30 (H); 101 (A) (3); 105; 109 (H); BIR Ruling No. 237-87; BIR Ruling No. 248-88; BIR Ruling No. 017-05; BIR Ruling No. S30-27-2003; BIR Ruling No. DA-043-2004; BIR Ruling NSNP-(S30H-001) 007-09; BIR Ruling NSNP-(S30H-136) 811-09 Our Lady of Peace Academy, Inc. Calingasan St., Tuy, 4214 Batangas Attention: Fr. Bernard A. Aguila Director Gentlemen : This refers to your letter dated December 1, 2009 received by this Office on July 15, 2010 via 1st Indorsement from Revenue Region No. 9-San Pablo City dated June 8, 2010, requesting tax exemption of OUR LADY OF PEACE ACADEMY, INC. pursuant to Section 30 (H) of the Tax Code of the Philippines, as amended. Documents submitted disclose that OUR LADY OF PEACE ACADEMY, INC. with Taxpayer Identification No. 003-376-068-000, is a non-stock, non-profit educational institution registered with the Securities and Exchange Commission (SEC) under SEC Reg. No. 18974 in 1961; that it is recognized by the government and permitted by the Department of Education (DepEd) granted in accordance with Government Recognitions/Permit: 1. Government Permit No. K-134 s. 2008 (Renewal)/E-152 S. 2008 (Renewal: Grades I-VI) dated August 29, 2008 to operate N-K-P and Grades I-VI of the Pre-Elementary and Elementary Course valid for SY 2008-2009 only; and 2. Government Recognition No. 162, s. 1955 dated April 14, 1955 for the Complete Academic Secondary Course with Vocational Subjects (Day) effective June 1, 1955. that among the primary purposes for which it was incorporated are as follows: "1. To establish and maintain a Catholic school as an institution of learning dedicated to the development of the moral, academic, cultural, technical needs of the youth of the Philippines as complete and adequate as possible a system of education, to carry out faithfully the missions and commitments of Catholic educational objectives provided for in the con stitution of the Phi lippines and the Education Act of 1982. EIDATc 2. To provide courses of study in the primary, intermediate, secondary, technical and vocational levels for which the usual certificates or diplomas may be awarded. 3. Incidental to the principal purposes hereof, to receive gifts, bequests, legacies, donations, devises and to own, possess and hold and/or acquire real properties, either in trust or otherwise, as the necessities of the corporation may require, for the purpose of carrying out the aims and objectives of the corporation. xxx xxx xxx" that the institution derives fund to sustain its operations from tuition fees, matriculation fees, gifts and donations; and that in support of its request, the following documents were completely submitted on September 7, 2010: 1) SEC Registration; 2) Amended Articles of Incorporation and By-laws; 3) Government Permit/Recognition Certificates; 4) Certified true copies of the Audited Financial Statements and Annual Income Tax Returns for the years 2007, 2008 and 2009; 5) Affidavit of Non-forum Shopping; and 6) BIR Certificate of Registration. In reply, please be informed that paragraph 3, Section 4, Article XIV of the 1987 Constitution provides, viz. : "All revenues and assets of non-stock, non-profit educational institutions used actually, directly and exclusively for educational purposes shall be exempt from taxes and duties." Likewise, Section 30 (H) of the 1997 Tax Code, as amended, provides, viz. : "Sec. 30. Exemptions from Tax on Corporations. The following organizations shall not be taxed under this Title in respect to income received by them as such: . . . xxx xxx xxx (H) A non-stock and non-profit educational institution; . . . ." A non-stock, non-profit educational institution is exempt from tax on all revenues derived in pursuance of its purpose as an educational institution and used actually, directly and exclusively for educational purposes. The exemption contemplated herein refers to internal revenue taxes imposed by the National Government on all revenues and assets of non-stock, non-profit educational institutions used actually, directly and exclusively for educational purposes. (BIR Ruling No. 248-88 dated June 6, 1988) From the foregoing, and since OUR LADY OF PEACE ACADEMY, INC. is a non-stock and non-profit educational institution as contemplated under the said provisions, it is exempt from the payment of taxes and duties on all its revenues and assets used actually, directly and exclusively for educational purposes. (BIR Ruling No. 237-87 dated August 11, 1987) However, OUR LADY OF PEACE ACADEMY, INC. shall be subject to internal revenue taxes on income from trade, business or other activity, the conduct of which is not related to the exercise or performance by such educational institutions of their educational purposes or functions (Sec. 2, Finance Department Order No. 137-87, as amended by Finance Department Order No. 92-88) . Likewise, OUR LADY OF PEACE ACADEMY, INC.'s gross receipts from operations as a non-stock, non-profit educational institution are exempt from value-added tax (VAT) pursuant to Section 109 (H) of the 1997 Tax Code, as amended. aHTCIc However, other activities involving sale of goods and services not in connection with its primary purposes are subject to the 12% VAT imposed under Sections 106 and 108 of the Tax Code of 1997, as amended, or 3% percentage tax imposed under Section 116 in relation to Section 109 (V) of the same Code if the gross sales or receipts from such sale of goods and services do not exceed One Million Five Hundred Thousand Pesos (P1,500,000.00) which tax payment may legitimately be passed on to buyers of such goods and services. (BIR Ruling No. S30-27-2003 dated November 21, 2003) Hence, as long as OUR LADY OF PEACE ACADEMY, INC. will not engage in the regular conduct or pursuit of a commercial or economic activity, including transactions incidental thereto, it will remain exempt from VAT. (BIR Ruling No. DA-043-2004 dated February 4, 2004) Moreover, the tax exemption granted to it as a non-stock, non-profit corporation under Section 30 of the Tax Code of 1997 covers only income taxes for which it is directly liable. It should be noted that VAT is an indirect tax payable by the seller and not by the purchaser of goods. However, being an indirect tax, it can be shifted or passed on to the buyer/purchaser, transferee or lessee of the goods, properties or services. Once shifted to the buyer/customer as an addition to the cost of goods or services sold, it is no longer a tax but an additional cost which the buyer/customer has to pay in order to obtain the goods or services. Thus, the shifting of the VAT to it does not make it the person directly liable and therefore, it cannot invoke its tax exemption privilege under Section 30 of the Tax Code of 1997 to avoid the passing on or shifting of the VAT. (BIR Ruling NSNP-(S30H-136) 811-09) Under Department Order No. 149-95 dated November 24, 1995 amending Department Order No. 137-87, interest income from currency bank deposits and yield from deposit substitute instruments used actually, directly and exclusively in pursuance of its purpose as an educational institution, are exempt from the 20% final tax and 7 1/2% tax on interest income under the expanded foreign currency deposit system imposed under Section 27 (D) (1) of the Tax Code of 1997, subject to compliance with the conditions that as a tax-exempt educational institution it shall on an annual basis submit to the Revenue District Office concerned an annual information return and duly audited financial statement together with the following: (a) Certification from their depository banks as to the amount of interest income earned from passive investment not subject to the 20% final withholding tax and 7 1/2% tax on interest income under the expanded foreign currency deposit system imposed by Section 27 (D) (1) of the Tax Code of 1997; (b) Certification of actual utilization of the said income; and (c) Board Resolution by the school administration on proposed projects ( i.e. , construction and/or improvement of school buildings and facilities, acquisition of equipment, books and the like) to be funded out of the money deposited in banks or placed in money markets, on or before the 15th day of the fourth month following the end of its taxable year (Sec. 4, Fin ance Department Order No. 13 7-87) . Moreover, revenues derived from assets used in the operation of cafeterias/canteens, and bookstores exclusively for its students are exempt from taxation provided they are owned and operated by OUR LADY OF PEACE ACADEMY, INC. as ancillary activities and the same are located within its premises. DaHSIT In addition, gifts, donations, and other contributions received by OUR LADY OF PEACE ACADEMY, INC. as an educational institution, are exempt from the payment of donor's tax pursuant to Section 101 (A) (3) of the Tax Code of 1997, as amended, subject to the condition that not more than 30% of said gift shall be used for administration purposes. Donors cannot avail of full deductibility for purposes of computing taxable income under Revenue Regulations No. 13-98 without the accreditation of OUR LADY OF PEACE ACADEMY, INC. as a donee institution with the Philippine Council for NGO Certification (PCNC). Organizations seeking certification shall file with the PCNC Secretariat a letter of intent to apply for certification and submit the necessary documents. If the applicant NGO has met the minimum criteria for certification, the Board gives a 3-year or 5-year certification to the organization and informs this Office which then issues to said organization a certification of Donee Institution Status. OUR LADY OF PEACE ACADEMY, INC. is advised to contact the Secretariat, Philippine Council for NGO Certification (PCNC), tel. nos. 7821-568; 7159-594; 7152-756 or telefax 7152-783. It must be emphasized that its tax exemption does not cover withholding taxes. As an educational institution, OUR LADY OF PEACE ACADEMY, INC. is constituted as withholding agent for the government required to withhold tax on compensation income of its employees, or the withholding tax on income payments to persons subject to tax pursuant to Section 57 of the Tax Code of 1997, as amended. Moreover, OUR LADY OF PEACE ACADEMY, INC. is also subject to the payment of the annual registration fee of PhP500.00 as prescribed in Section 236 (B) of the Tax Code of 1997, as amended. It is also required under Section 6 (C) in relation to Section 237 of the same Code to issue duly registered receipts or sales or commercial invoices for each sale or transfer of merchandise or for services rendered which are not directly related to the activities for which they are registered. (RMC No. 76-2003) Under Section 235 of the Tax Code of 1997, as amended, any provision of existing general or special law to the contrary notwithstanding, the Revenue District Officer shall conduct an audit of annual information return filed, the books of accounts and other pertinent records of OUR LADY OF PEACE ACADEMY, INC. to determine compliance with the conditions set forth in the certificate of tax exemption and tax liabilities, if any. (BIR Ruling No. NSNP-(S30H-001) 007-09 dated January 8, 2009) 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 null and void. CSEHIa Very truly yours, (SGD.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue