Terminal Leave Pay of a Retired Bank Employee Shall be Subject to Withholding Tax

November 5, 1991 BIR RULING NO. 223-91 21(e) 72 074-91 128-91 223-91 S i r : This refers to your letter dated July 4, 1991 requesting for an opinion on whether or not the cash equivalent of your accumulated vacation and sick leave credits as a retired employee of the Republic Planters' Bank, a government-owned or controlled bank, are exempt from the withholding tax in view of the Supreme Court's En Banc Resolution dated October 18, 1990. In reply, please be informed that in reiterating the exemption from the withholding tax of the terminal leave pay of its retiree-employee, Atty. Bernardo F. Zialcita, the Supreme Court, in another En Banc Resolution dated October 18, 1990, denying the motion for clarification and/or reconsideration of the Bureau of Internal Revenue, specifically stated that the August 23, 1990 resolution (Adm. Matter No. 90-6-015-SC) exempting terminal leave pay from withholding tax " applies only to employees and officers of the Judiciary who retire, resign or are separated through no fault of their own ". (Emphasis ours). Accordingly, since you are not a retired employee of the Judiciary, the August 23, 1990 and October 18, 1990 En Banc Resolutions of the Supreme Court do not apply to you. However, in the case of Commissioner of Internal Revenue vs. the Court of Tax Appeals and Efren P. Castaeda (CA-G.R. Sp. No. 20482), which involves a retired officer of the Bureau of Internal Revenue, the Court of Appeals on September 26, 1990 affirmed the decision of the Court of Tax Appeals ordering the refund to Mr. Castaeda of the sum which was deducted from his terminal leave pay as withholding tax. In support of its decision, the Court of Appeals cited the above-mentioned En Banc Resolution of the Supreme Court in the Zialcita case. Due to the apparent modification by the Court of Appeals of the Zialcita resolution which is specifically limited to retirees of the Judiciary, the Bureau filed a petition for Review with the Supreme Court requesting the latter for a clarification, among other things, of the issue of whether the resolution is applicable to other government offices and employees considering that Castaeda was not a retired officer of the Judiciary. In view of the foregoing, this Office is of the opinion as it hereby holds that until the above issue raised by the BIR in the Castaeda case is decided by the Supreme Court in favor of government officers and employees other than those of the Judiciary, your terminal leave pay as a retired employee of the Republic Planters' Bank shall be subject to the withholding tax prescribed under Section 72, Chapter 10, Title II of the Tax Code, as amended by B.P. 135 and implemented by Revenue Regulations No. 6-82, as amended. Very truly yours, (SGD.) JOSE U. ONG Commissioner