BIR Ruling No. 113-14

April 30, 2014 BIR RULING NO. 113-14 E.O. 226; RR 16-2011; Secs. 57 (B); 106 (A) (1) (a); 196 NIRC; BIR Ruling No. 334-11 Johndorf Ventures Corporation Unit 7, Jofelmar Bldg. Mortola St., Cagayan de Oro City Attention: Gladeys Jill A. Santos-Cua Practitioner Gentlemen : This refers to your letter dated February 19, 2013 stating that Johndorf Ventures Corporation ( "Johndorf" for brevity) with Tax Identification No. 000-555-949-003 is a domestic corporation duly registered with the Securities and Exchange Commission (SEC) under Company Reg. No. 137388. It is registered with the Board of Investments (BOI) as a New Developer of Low-Cost Mass Housing Project (148 Residences Pelaez St., Kalubihan, Cebu City) on a Non-Pioneer status under Certificate of Registration No. 2012-277 dated December 21, 2012 in accordance with the Omnibus Investments Code of 1987 or Executive Order (EO) No. 226. Johndorf has been granted Income Tax Holiday (ITH) by the BOI for a period of three (3) years from December 2012 or actual start of commercial operations/selling, whichever is earlier but in no case earlier than the date of registration. Johndorf's 148 Residences Pelaez St., Kalubihan, Cebu City Project is registered with Housing and Land Use Regulatory Board (HLURB) under Certificate of Registration No. 20879 and holds HLURB License to Sell No. 25435; and under the Specific Terms and Conditions of its BOI Registration, Johndorf shall construct and sell one hundred forty eight (148) units of low-cost mass housing for 148 Residences Pelaez St., Kalubihan, Cebu City Project based on the following schedule: Year Volume (No. of Units) Value (P'000) 1 60 75,000,000 2 50 62,500,000 3 38 47,500,000 Total 148 185,000,000 ==== ========== On the basis of the foregoing, you now request for an opinion on the tax consequences of the said ITH granted by BOI. Specifically, if Johndorf, being a BOI-registered enterprise, is exempt from the payment of the creditable withholding tax (CWT) imposed under Revenue Regulations No. 2-98 on income payments received during the aforementioned period with respect to its registered activity. In reply, please be informed that under Section 2.57.5 (B) (2) of Revenue Regulations (RR) No. 2-98, as amended by RR No. 6-2001 implementing Section 57 (B) of the Tax Code of 1997, as amended, the withholding tax prescribed in the said Regulations shall not apply to income payments to persons enjoying exemption from the income tax provided by Republic Act No. 7916 and the Omnibus Investments Code of 1987. DIETHS Accordingly, since Johndorf's 148 Residences Pelaez St., Kalubihan, Cebu City Project is a BOI registered project, this Office is of the opinion as it hereby holds, that income payments received by Johndorf in connection with its housing project, 148 Residences-Pelaez St., Kalubihan, Cebu City (on the 148 low-cost mass housing units as mentioned in the Specific Terms and Conditions of its BOI Registration) , is exempt from CWT under RR No. 2-98, as amended by RR No. 6-2001, for a period of three (3) years from December 2012 or actual start of commercial operations/selling, whichever is earlier but in no case earlier than the date of registration. 1 It must be emphasized, however, that the above exemption from CWT covers only income directly attributable to revenues generated from its registered activity, Johndorf's 148 Residences-Pelaez St., Kalubihan, Cebu City Project . Furthermore, such exemption shall not cover revenues from units with selling price exceeding Three Million Pesos (P3,000,000.00). In the computation of ITH, interest income from in-house financing shall not be considered as revenues generated from the registered activity. Moreover, the entitlement to ITH of Johndorf's 148 Residences Pelaez St., Kalubihan, Cebu City Project is not automatic as it still has to comply with the following provisions of the Specific Terms and Conditions of its BOI Registration, viz. : 1. In the grant of incentives, the extent of the project's ITH entitlement shall be based in the project's ability to contribute to the economy's development based on the following parameters: (1) project's net value added, (2) job generation, (3) multiplier effect, and (4) measured capacity. The Board may reduce the project's ITH entitlement if the project does not realize the extent of economic benefits represented by the proponent at the time of its application. The enterprise shall comply with the following representations: a. Net Value Added (NVA) should be at least 25% Pre-op NVA 82.82% b. Job Generation Number of Employees Pre-op Year 2 Year 3 Year 4 Total 139 39 39 39 Employees c. Investments and Timetable DSATCI Activity Schedule Related Cost Expense/s (In Php'000) Land acquisition January Land cost 24,000,000 2011 Secure necessary June 2011 Pre-operating 600,000 appropriate to Sept Expenses license/permit/ 2012 registration from the government Site preparation and July to Land/site 500,000 development Sept 2011 development Cost Building construction Sept 2011 Building 103,472,652 to Construction December Cost 2012 Capital Equipment July 2011 Capital 9,832,542 Operations to Sept Equipment 2012 Start of commercial December Working 1,500,000 operation 2012 capital Total Project 139,905,194 Cost ========== d. Sales Revenues Year Volume (No. of Units) Value (Php'000) 1 60 75,000,000 2 50 62,500,000 3 38 47,500,000 Total 148 185,000,000 ==== ========== Net income that exceeds 10% of the revenue represented at the time of application shall not be eligible to ITH unless, the Board is informed in writing by the proponent in advance before the revenue is expected to exceed the projections in the application for registration submitted to the Board. 2. The enterprise shall submit a list of common cost items and cost allocation methodology for its other projects/activities (whether BOI-registered or non-registered). 3. Secure from the HLURB an endorsement that it has faithfully complied with the approved development plan and a "Certificate of Good Housekeeping". CDAHaE 4. File an application with the BOI Incentives Department within one (1) month from filing of the final Income Tax Return (ITR) with the Bureau of Internal Revenue (BIR) in order to validate the claim for income tax exemption. The application shall be accompanied by a certification from the Social Security System (SSS) that the enterprise is in good standing in the remittance of SSS contributions of its employees. 5. Secure a Certificate of ITH Entitlement (CoE) from the BOI Supervision and Monitoring Department prior to filing of ITR with the BIR; otherwise, ITH for that particular year without CoE shall be forfeited. 6. In the event the enterprise fails to maintain the 75:25 debt-equity ratio requirement, it shall show proof that the construction of housing units have been completed and delivered to buyers prior to availment of ITH; otherwise, the enterprise shall not be entitled to ITH and shall be required to refund any capital equipment incentives availed of. 7. The enterprise shall submit proof of compliance that it has developed socialized housing project using either of the following schemes, otherwise, the ITH for that particular taxable year shall be deemed forfeited: a. Investment: 20% of total saleable area (estimated at 592 sq.m.); or b. Direct Participation Scheme (at the option of the registered developer): i. 30% x (20% of the Building Construction Cost) (estimated at P3.208M; or ii. 40% of ITH. The investment scheme may be complied with through any of the following modes: (1) Development of new settlement directly undertaken by registered activity; (2) Slum Upgrading; and (3) Development of a new settlement through joint venture arrangements with either: a Local Government Unit, the National Housing Authority, a subsidiary of the BOI-registered entity, or a developer accredited by the HLURB. Compliance with the twenty (20%) percent housing requirement must be completed within the ITH availment period and should be proportionate to the number of low-cost housing units being applied for ITH for the taxable year. DCESaI Furthermore, BOI-registered enterprises enjoy no tax exemption/privileges other than those granted under E.O. 226. In this regard, under the terms and conditions of its BOI registration, Johndorf's 148 Residences Pelaez St., Kalubihan, Cebu City Project was clearly granted a 3-year ITH but such terms and conditions do not provide for any exemption from other taxes that Johndorf may be subject to on its business transactions. Thus, Johndorf's 148 Residences Pelaez St., Kalubihan, Cebu City Project will remain subject to Value-Added Tax (VAT) and Documentary Stamp Tax (DST) on its sales of house and lot units pursuant to Sections 106 (A) (1) (a) and 196 of the Tax Code of 1997, as amended. ( BIR Ruling No. 334-11 dated September 7, 2011 ) In relation thereto, Section 109 (1) (P) of the Tax Code of 1997 provides, that the sale of residential lot valued at One Million Nine Hundred Nineteen Thousand Five Hundred Pesos (P1,919,500.00) and below, or house and lot and other residential dwellings valued at Three Million One Hundred Ninety Nine Thousand Two Hundred Pesos (P3,199,200.00) and below is VAT-exempt. 2 Thus, only the sales by Johndorf's 148 Residences Pelaez St., Kalubihan, Cebu City Project of housing units with selling price of not more than the aforementioned price ceilings shall be exempt from VAT. It should be understood that Johndorf's 148 Residences Pelaez St., Kalubihan, Cebu City Project shall be constituted as a withholding agent for the government if it acts as employer and any of its employees received compensation income subject to compensation withholding tax, or if it makes payments to individuals or corporations subject to the withholding taxes at source as required under Chapter XIII and Section 57 of the Tax Code of 1997, as amended and implemented by Revenue Regulations No. 2-98, as amended. Likewise, Johndorf's 148 Residences Pelaez St., Kalubihan, Cebu City Project is required to file on or before the 15th day of the fourth month following the close of its 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 taxable year. Finally, Johndorf's 148 Residences Pelaez St., Kalubihan, Cebu City Project's books of accounts and other pertinent records shall be subject to periodic examination by revenue enforcement officers of this Bureau for the purpose of ascertaining whether it has been complying with the conditions under which it has been granted tax exemption or tax incentives and its tax liability, if any, pursuant to Section 235 of the Tax Code of 1997, as amended. 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. aDATHC Very truly yours, (SGD.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue Footnotes 1. Movement of ITH period is subject to Art. 7 of E.O. 226 per BOI Specific Terms and Conditions No. 1. 2. The increase in the threshold amount for the sale or lease of goods or properties or the performance of services covered by Section 109 (P), (Q) and (V) of the 1997 Tax Code took effect on January 1, 2012, pursuant to Revenue Regulations No. 16-2011 dated October 27, 2011.