BIR Ruling No. 147-12

February 28, 2012 BIR RULING NO. 147-12 E.O. 226; RR 2-98; RR 16-11; BIR Ruling No. 334-2011 Prohomes Development, Inc. 14th Flr., Ayala Life FGU Building Cebu Business, Cebu City Attention: Beverly M. Dayanan President & CEO Gentlemen : This refers to your letter dated March 18, 2010 requesting tax exemption as New Developer of Low-Cost Mass Housing Project (Earnestine Homes Subdivision, Barangay Bagbag, Lapu-Lapu City, Cebu) pursuant to the provisions of the Omnibus Investments Code of 1987. Documents submitted disclosed that Prohomes Development, Inc. with Taxpayer's Identification No. 235-410-503-000, is a domestic corporation engaged in real estate business and registered with the Securities and Exchange Commission (SEC) under SEC Registration No. CS200430279 dated December 2, 2004; that Prohomes Development, Inc. is registered with the Board of Investments (BOI) as a New Developer of Low-Cost Mass Housing Project on a Non-Pioneer status per BOI Registration No. 2010-032 dated January 29, 2010; that its BOI registration particularly covers the project: Project Name Location Start of Commercial No. of Operation/ITH Units Earnestine Homes Barangay Bagbag, June 2010 72 Subdivision Lapu-Lapu City, Cebu that according to the Terms and Conditions of its BOI Registration, Prohomes Development, Inc. is entitled to ITH for a period of four (4) years from June 2010 or the actual start of commercial operations/selling whichever is earlier, but in no case earlier than the date of registration; and that Prohomes Development, Inc.'s ITH shall be limited only to the revenue generated from the registered projects; and that revenues from units with selling price exceeding PhP3.0M shall not be covered by ITH; and that the project is duly registered with the Housing and Land Use Regulatory Board under Certificate of Registration No. 20729, with License to Sell No. 21761 involving 72 lots/units. HcaDIA 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 the Omnibus Investments Code of 1987. Accordingly, since Prohomes Development, Inc.-Earnestine Homes Subdivision Housing Project, is a BOI registered project, this Office is of the opinion as it hereby holds, that income payments received by Prohomes Development, Inc. in connection with the aforementioned housing project, Prohomes Development, Inc.-Earnestine Homes Subdivision, are exempt from the creditable withholding tax imposed under RR No. 2-98, as amended by RR No. 6-2001, for a period of four years starting from June 2010. It must be emphasized, however, that the above exemption from the creditable withholding tax covers only revenues generated from the registered activity, Prohomes Development, Inc.-Earnestine Homes Subdivision Housing Project. Furthermore, such exemption shall not cover revenues from units with selling price exceeding Three Million pesos (P3,000,000.00). (BIR Ruling No. 334-2011 dated September 7, 2011) Moreover, Prohomes Development, Inc.-Earnestine Homes Subdivision Housing Project's entitlement to ITH is not automatic as it has still to comply with Section 9 (a) of the Specific Terms and Conditions of the BOI Registration, viz.: (1) Secure from the Housing and Land Use Regulatory Board (HLURB) an endorsement that it has faithfully complied with the approved development plan and a "certificate of good housekeeping"; (2) File an application with the BOI Incentives Department within one (1) month from the 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; and (3) 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 taxable year without CoE shall be forfeited. ScTCIE 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, Prohomes Development, Inc.-Earnestine Homes Subdivision Housing Project was clearly granted a 4-year ITH but such terms and conditions do not provide for any exemption from other taxes that it may be subject to on its business transactions. Thus, Prohomes Development, Inc.-Earnestine Homes Subdivision Housing Project will remain subject to Value-Added Tax (VAT) and Documentary Stamp Tax (DST) on its sales of housing units pursuant to Sections 106 (A) (1) (a) and 196 of the Tax Code of 1997, as amended. (BIR Ruling No. 334-2011 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 five hundred thousand pesos (P1,500,000) 1 and below or house and lot, and other residential dwellings valued at two million five hundred thousand pesos (P2,500,000) 2 and below is VAT-exempt. Thus, only the sales by Prohomes Development, Inc.-Earnestine Homes Subdivision Housing Project of housing units with selling price of not more than the aforementioned price ceiling shall be exempt from VAT. It should be understood that Prohomes Development, Inc.-Earnestine Homes Subdivision Housing Project shall be constituted as a withholding agent for the government if it acts as employer and any of its employees receive compensation income subject to compensation withholding tax, or if it makes payments to individuals or corporations subject to the withholding taxes as 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, Prohomes Development, Inc.-Earnestine Homes Subdivision Housing Project is required to file on or before the 15th day of the fourth month following the close of your accounting period a Profit and Loss Statement and Balance Sheet with the Annual information Return under oath, stating your gross income and expenses incurred during the taxable year. Finally, Prohomes Development, Inc.-Earnestine Homes Subdivision Housing 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 you have been complying with the conditions under which you have been granted tax exemption or tax incentives and your tax liability, if any, pursuant to Section 235 of the Tax Code of 1997, as amended. THCSAE 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 as represented are different, then this ruling shall be considered null and void. Very truly yours, (SGD.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue Footnotes 1. P1,919,500.00 starting January 1, 2012. 2. P3,199,200.00 starting January 1, 2012.