BIR Ruling No. 107-14

April 16, 2014 BIR RULING NO. 107-14 Section 30 (E) of the Tax Code of 1997; BIR Ruling No. 158-11; BIR Ruling No. 156-11; BIR Ruling No. 153-11 Congregation of Benedictine Sisters of the Eucharistic King, Inc. 30 Ignacio Santos Diaz St. Araneta Center, Cubao, Quezon City Attention: Mother Ma. Araceli Escurzon, OSB Prioress General/Executive Officer Gentlemen : This refers to your letters dated August 7, 2013 duly indorsed by Revenue Region (RR) No. 7-Quezon City, requesting for the issuance of a certificate of tax exemption enjoyed by non-stock corporation or association organized and operated exclusively for religious purposes under Section 30 (E) of the Tax Code of 1997, as amended. It is represented that Congregation of Benedictine Sisters of the Eucharistic King, Inc. with Taxpayer's Identification No. 001-440-328-000, is a religious corporation duly organized under the laws of the Philippines; that it is registered with the Securities and Exchange Commission (SEC) under Registration No. 136684 dated November 25, 1986; and that the purpose for which it was incorporated is for the administration of its temporalities and the management of its properties or estates of the Church. In support of its request, Congregation of Benedictine Sisters of the Eucharistic King, Inc. has completely submitted on January 3, 2014 the following documents: 1) Letter application for tax exemption; 2) Certified true copy of the Certificate of Registration with the SEC; DSETcC 3) Certified true copy of the Articles of Incorporation; 4) Certified true copy of the By-Laws; 5) Original Copy of the Certification under Oath of the Executive Officer stating that there are no amendments/changes in the Articles of Incorporation and By-Laws, manner of activities as well as the sources and disposition of income; 6) BIR Certificate of Registration; 7) Original Certification under Oath of the Treasurer certifying that no compensation, salaries or any emoluments being paid to each trustees, officers and other executive officers; 8) Original Copy of Delinquency Verification Slip issued by RR No. 7-Quezon City-Collection Division stating "has no record of delinquent accounts in the Collection Division, RR No. 7-Q.C."; 9) Certified true copies of the Annual Income Tax Returns and Financial Statements for the last three (3) years of operation; and 10) Original Copy of the Statement under Oath as to its Modus Operandi. In reply, please be informed as follows: Income Tax Section 30 (E) of the 1997 Tax Code, as amended, provides, viz. : TSHcIa "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 (E) Nonstock corporation or association organized and operated exclusively for religious, charitable, scientific, athletic, or cultural purposes, or for the rehabilitation of veterans, no part of its net income or asset shall belong to or inure to the benefit of any member, organizer, officer or any specific person; . . ." Under the above-quoted provision, a non-stock corporation or association organized and operated exclusively for religious, charitable, scientific, athletic, or cultural purposes, or for the rehabilitation of veterans, no part of its net income or asset shall belong to or inure to the benefit of any member, organizer, officer or any specific person is exempt from income taxation. (BIR Ruling No. 158-11 dated May 19, 2011, BIR Ruling No. 156-11 dated May 19, 2011 and BIR Ruling No. 153-11 dated May 17, 2011) Corporations or associations which apply for tax exemption ruling under Section 30 (E) of the Tax Code of 1997, as amended, must meet the following requirements in accordance with Revenue Memorandum Order No. 20-2013 dated July 22, 2013, to wit: a. It must be a non-stock corporation or association organized and operated exclusively for religious, charitable, scientific, athletic, or cultural purposes, or for the rehabilitation of veterans. b. It should meet the following tests: i. Organizational Test requires that the corporation or association's constitutive documents exclusively limit its purposes to one or more of those described in paragraph (E) of Section 30 of the NIRC, as amended. cAEaSC ii. Operational Test mandates that the regular activities of the corporation or association be exclusively devoted to the accomplishment of the purposes specified in paragraph (E) of Section 30 of the NIRC, as amended. A corporation or association fails to meet this test if a substantial part of its operations may be considered "activities conducted for profit". c. All the net income or assets of the corporation or association must be devoted to its purpose/s and no part of its net income or asset accrues to or benefits any member or specific person. Any profit must be plowed back and must be devoted or used altogether for the furtherance of the purpose for which the corporation or association was organized. d. It must not be a branch of a foreign non-stock, non-profit corporation. Wherefore, Congregation of Benedictine Sisters of the Eucharistic King, Inc., is a non-stock, non-profit religious corporation contemplated under Section 30 (E) of the Tax Code of 1997, as amended. Accordingly, it is exempt from the payment of tax on income received by it as such organization, provided, that no part of its net income or asset shall belong to, or inure to the benefit of any member, organizer, officer or any specific person. Furthermore, it is subject to the corresponding internal revenue taxes imposed under the Tax Code of 1997 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. Likewise, interest income from currency bank deposits and yield or any other monetary benefit 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. (BIR Ruling No. 158-11 dated May 19, 2011, BIR Ruling No. 156-11 dated May 19, 2011 and BIR Ruling No. 153-11 dated May 17, 2011) EDSHcT It should be understood that the said exempt corporation/association shall be constituted as withholding agent for 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 No. 2-98, as amended, or if it makes income payments to individuals or corporations subject to the withholding tax pursuant to Section 57 of the Tax Code of 1997, also as implemented by Revenue Regulations No. 2-98, as amended. (BIR Ruling No. 158-11 dated May 19, 2011, BIR Ruling No. 156-11 dated May 19, 2011 and BIR Ruling No. 153-11 dated May 17, 2011) Value-Added Tax 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. 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. SaITHC Accordingly, if Congregation of Benedictine Sisters of the Eucharistic King, Inc. is engaged in the sale of goods or services in the course of a business pursuit, including transactions incidental thereto, in general, it shall be liable for VAT. (BIR Ruling No. 158-11 dated May 19, 2011, BIR Ruling No. 156-11 dated May 19, 2011 and BIR Ruling No. 153-11 dated May 17, 2011) 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. 158-11 dated May 19, 2011, BIR Ruling No. 156-11 dated May 19, 2011 and BIR Ruling No. 153-11 dated May 17, 2011) 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. CDTSEI Revenue from contributions and donations, not being derived from sale of services or sale of goods made in the course of business but rather in connection with its non-stock, non-profit activities, is exempt from the 12% VAT. Donor's Tax In as much as Congregation of Benedictine Sisters of the Eucharistic King, Inc. is a religious organization, donations to it 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 thirty percent (30%) of said gift shall be used for administration purposes. (BIR Ruling No. 158-11 dated May 19, 2011, BIR Ruling No. 156-11 dated May 19, 2011 and BIR Ruling No. 153-11 dated May 17, 2011) Deductibility of Donation Section 34 (H) (1) of the Tax Code of 1997, as amended, provides that for contributions or gifts actually paid or made within the taxable year to, or for the use of corporations or associations organized and operated exclusively, among others, for religious purposes, their donors shall be entitled to the limited deductions in an amount not in excess of 10% in the case of an individual and 5% in the case of a corporation, of the donor's taxable income derived from trade, business or profession as computed without the benefit of this deduction and the subparagraphs of Section 34 (H) (1) of the Tax Code of 1997, as amended. SAHIaD 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. (BIR Ruling No. 158-11 dated May 19, 2011, BIR Ruling No. 156-11 dated May 19, 2011 and BIR Ruling No. 153-11 dated May 17, 2011) 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. 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 Association is registered [Revenue Memorandum Circular (RMC) No. 76-2003]. It is requested that a copy of this letter of exemption be attached to the aforementioned Annual Information Return. Please note that this tax exemption ruling shall be valid for a period of three (3) years from the date of issue, unless sooner revoked or cancelled. TSIDaH The tax exemption ruling may be renewed upon filing of a subsequent application for Tax Exemption/Revalidation provided under the same requirements and procedures provided under Revenue Memorandum Order (RMO) No. 20-2013. Failure to renew the Tax Exemption Ruling shall be deemed a revocation thereof upon the expiration of the three (3)-year period. The new Tax Exemption ruling shall be valid for another period of three (3) years unless sooner revoked or cancelled. 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