BIR Ruling No. 093-13

March 8, 2013 BIR RULING NO. 093-13 Sections 27 (D) (1), 30 (C) and 105 of the Tax Code of 1997, as amended; BIR Ruling No. 140-11; BIR Ruling No. 108-11; and BIR Ruling No. 080-11 Kidney Transplant Association of the Philippines, Incorporated 150 Matatag Street, Diliman Quezon City Attention: Teresita V. Prima President Gentlemen : This refers to your letters dated March 7, 2011 dated June 27, 2011 requesting on behalf of Kidney Transplant Association of the Philippines, Incorporated (KITAP) for tax exemption pursuant to Section 30 (C) of the Tax Code of 1997, as amended. DTAaCE It is represented that KITAP with Taxpayer's Identification No. 200-338-454-000, is a non-stock, non-profit corporation duly organized under the laws of the Philippines; that it is registered with the Securities and Exchange Commission (SEC) under Registration No. 132470; and that the purposes for which it was incorporated are the following: "To establish an institutional medium for the promotion and enhancement of good health among kidney transplants, kidney donors, and those afflicted with chronic kidney disease and various kinds of kidney ailments. To accomplish this principal purpose the Association shall, do among others, but not limited to the following: (as ratified on March 26, 2010) 1. To strengthen the management through competent and skilled leaders. 2. To empower members towards quality of life. 3. To establish and organize chapters for advocacy of kidney transplantation and organ donation. 4. To sustain the growth through drugstore and giftshop." In support of its request, KITAP has completely submitted on March 5, 2012 the following documents: 1) Letter application for tax exemption; 2) Certified true copy of the Certificate of Registration with the SEC; 3) Certified true copy of the Amended Articles of Incorporation as of September 28, 2011, which includes the following provisions: a. That the corporation is non-stock, non-profit; b. That the primary purpose for which it was created is one of those enumerated under Sec. 30 of the Tax Code of 1997, as amended; c. That no part of the net income shall inure to the benefit of any of its members; and d. In case of dissolution, assets of the corporation shall be transferred to similar institution or to the government. 4) Certified true copy of the Amended By-Laws as of February 10, 2012, which includes the provision that the trustees shall not receive any compensation; 5) Certified true copy of the Annual Information Return and Financial Statements for the last three (3) years of operation; and 6) BIR Certificate of Registration. In reply, please be informed as follows: Income Tax Section 30 (C) of the Tax Code of 1997, 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: cISDHE xxx xxx xxx (C) A beneficiary society, order or association, operating for the exclusive benefit of the members such as a fraternal organization operating under the lodge system, or a mutual aid association or a non-stock corporation organized by employees providing for the payment of life, sickness, accident, or other benefits exclusively to the members of such society, order, or association, or non-stock corporation or their dependents; . . . ." Based on the foregoing, this Office is of the opinion and so holds that KITAP falls within the purview of an association contemplated under the above cited provision. Accordingly, it is exempt from the payment of income tax on income received by it as such organization. However, it is subject to the corresponding internal revenue taxes imposed under the National Internal Revenue Code on its income derived from any of its properties, real or personal, or any activity conducted for profit regardless of the disposition thereof, which income should be returned for taxation, such as operation of drugstore and giftshop as well as sale of its publication. Likewise, interest income from currency bank deposits and yield or any other monetary benefits from deposit substitute instruments and from trust funds and similar arrangements, and royalties derived from sources within the Philippines are subject to the 20% final withholding tax: provided, however, that interest income derived by it from a depository bank under the expanded foreign currency deposit system shall be subject to 7-1/2% final withholding tax pursuant to Section 27 (D) (1), in relation to Section 57 (A), both of the Tax Code of 1997. IEcDCa Moreover, it is required to file on or before the 15th day of the fourth month following the end of the accounting period a Profit and Loss Statement and Balance Sheet with the Annual Information Return under oath, stating its gross income and expenses incurred during the preceding period and a certificate showing that there has not been any change in its By-laws, Articles of Incorporation, manner of operation and activities as well as sources and disposition of income. It is requested that a copy of this letter of exemption be attached to the annual information return which KITAP will file on or before the 15th day of the fourth month of each year. Under Section 235 of the Tax Code of 1997, any provision of existing general and special law to the contrary notwithstanding, the books of accounts and other pertinent records of tax-exempt organizations or grantees of tax incentives shall be subject to examination by the BIR for purposes of ascertaining compliance with the conditions under which it has been granted tax exemptions or tax incentives, and its tax liabilities, if any. It should be understood that the said exempt organization shall be constituted as withholding agent of the government if it acts as an employer and its employees receive compensation income subject to the withholding tax under Section 79 (A), Chapter XIII, Title II of the Tax Code of 1997, as implemented by Revenue Regulations (Rev. Regs.) No. 2-98, as amended, or if it makes income payments to individuals or corporations subject to the expanded withholding tax provided for in Section 57 (B) of the Tax Code of 1997, also as implemented by Rev. Regs. No. 2-98, as amended. (BIR Ruling No. 140-11 dated April 29, 2011) Finally, it is 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 the KITAP is registered [Revenue Memorandum Circular (RMC) No. 76-2003] . Value Added Tax Moreover, the tax exemption granted to it as a non-stock, non-profit corporation under Section 30 (C) of the Tax Code of 1997 covers only income taxes for which it is directly liable. Section 105 of the Tax Code of 1997 provides that 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 the value-added tax (VAT) imposed in Sections 106 to 108 of the same Code. The phrase "in the course of trade or business" means the regular conduct or pursuit of a commercial or an economic activity, including transactions incidental thereto, by any person regardless of whether or not the person engaged therein is a non-stock, non-profit private organization (irrespective of the disposition of its net income and whether or not it sells exclusively to members or their guests), or government entity. IAETDc 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. Notwithstanding that it is a non-stock, non-profit corporation, its purchase of goods or properties or services and importation of goods shall nevertheless be subject to the 12% VAT pursuant to Section 107 of the said Code. (BIR Ruling No. 108-11 dated April 7, 2011) Accordingly, if KITAP is engaged in the sale of goods or services in the course of a business pursuit, including transactions incidental thereto, in general, it shall also be liable for VAT. (BIR Ruling No. 080-11 dated March 15, 2011) 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, (SGD.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue