BIR Ruling No. 291-13

July 29, 2013 BIR RULING NO. 291-13 RA 7279; BIR Ruling No. 129-12 Remberland Realty & Development Corporation 75 Gen. Ordoez St. Marikina Heights, Marikina City Attention: Jessie A. Cario CEO Gentlemen : This refers to your letter dated July 19, 2012, requesting for an exemption from paying expanded withholding tax pursuant to the provisions of Republic Act (RA) No. 7279 or the "Urban Development and Housing Act of 1992". Documents submitted show that Remberland Realty and Development Corporation with Taxpayer's Identification No. 235-428-473-000 is corporation duly organized and existing under Philippine laws; that it is registered with the Securities and Exchange Commission (SEC) under Registration No. CS200419033; that it is the owner and developer of a housing project known as Remberland East Phase 1 & Phase 2 located at Barangay Dalig, Teresa, Rizal; and that the projects are duly registered with the Housing and Land Use Regulatory Board (HLURB),to wit; Remberland East Phase 1 HLURB Certificate of Registration No. 21480 License to Sell No. 22777 (102 Lots with Housing Units [56 Economic and 46 Socialized]) "A. The following lots shall be sold as Economic Housing with maximum selling price of P1,250,000 per house and lot package: Block 1, Lots 1 to 18; Block 2, Lots 1 to 18; B[l]ock 3, Lots 1, 3, 5, 7, 9 and 10; Block 5 Lot 1; Block 6, Lots 1, 2 and 3; Block 7, Lots 1, 2, 3; Block 8, Lots 1, 3, 5, 7, 9, 10 and Block 9 Lot 1. B. The following are to be sold as Socialized Housing with maximum selling price of P400,000.00 per house and lot package: Block 1, Lots 19 to 34; Block 3, Lots 2, 4, 6, 8; Block 4, Lots 1 to 10; Block 5, Lots 2 and 3; Block 6, Lots 4 to 7; Block 7, Lots 4 to 7; Block 8, Lots 2, 4, 6, 8 and Block 9, Lots 2 and 3." TECIHD Remberland East Phase 2 HLURB Certificate of Registration No. 22858 License to Sell No. 24169 (75 Lots /Units) "Additional condition(s) Compliance to Section 18 of R.A. 7279: REMBERLAND EAST PHASE 1, Brgy. Dalig, Teresa, Rizal (16 lots/units) Block 5: Lots 2 and 3 Block 8: Lots 2, 4, 6 and 8 Block 6: Lots 4 to 7 Block 9: Lots 2 and 3 Block 7: Lots 4 to 7" In reply, please be informed that Section 20 of RA No. 7279, reads: "Sec. 20. Incentives for the Private Sector Participating in Socialized Housing . To encourage greater private sector participation in socialized housing and further reduce the cost of housing units for the benefit of the underprivileged and homeless, the following incentives shall be extended to the private sector: xxx xxx xxx "(d) Exemption from the payment of the following: "(1) Project-related income taxes; "(2) Capital gains tax on raw lands used for the project; "(3) Value-added tax for the project contractor concerned." Only the sale of socialized housing units to qualified beneficiaries shall be exempt from income taxes, and consequently, from creditable expanded withholding tax prescribed under Revenue Regulations (R.R.) No. 2-98, as amended. Thus, a buyer of a socialized housing unit shall be required by the developer/owner/seller to execute a sworn statement that he is eligible as a socialized housing beneficiary provided under Section 5 (A) of R.R. No. 11-97. Section 5 (A) of R.R. No. 11-97 provides that: STIcaE SEC. 5. Requirements/Conditions for the Availment of Tax Incentives/Exemptions . A. To qualify for socialized housing program, a beneficiary (a) must be a Filipino citizen; (b) must be an underprivileged and homeless citizen, as defined in Section 3(t) of the Act and Section 2(r) of these Regulations; (c) must not own any real property, whether in the urban or rural areas; and (d) must not be a professional squatter or a member of squatting syndicates. In this connection, any sale made by the owner and developer to interested parties other than the principal target beneficiaries under Sections 3 (t) and 16 of RA No. 7279, shall not be entitled to the foregoing tax exemption should there be non-compliance with any of the aforestated sine qua non terms and conditions. (BIR Ruling No. 129-12 dated February 23, 2012) It is, however, understood that the Certificate Authorizing Registration (CAR) shall only be issued after it is established upon proper verification by the Revenue District Officer (RDO) concerned that, considering the rules on valuation of real property, the actual selling price per sale transaction of the house and lot packages in this case does not really exceed P400,000.00 and P160,000.00 for lot only. Thus, sale of a house and lot or lot only above the maximum amount shall be subject to the corresponding internal revenue taxes. Nonetheless, it is observed that documentary stamp tax is not one of the taxes covered by the tax exemption clause in Section 20 of RA No. 7279. Such being the case, the owner/project developer/seller shall be liable to pay the documentary stamp tax on the documents conveying the properties imposed under Section 196 of the Tax Code of 1997, as amended, based on the consideration contracted to be paid for such realties or on their fair market value determined in accordance with Section 6 (E) of the said Code, whichever is higher. Pursuant to Section 20 of RA 7279, a project contractor of a socialized housing project shall also be exempt from the payment of value-added tax (VAT) on the project concerned. Relative thereto, Section 4.109-1 (B) (1) (p) (3) of RR No. 16-2005 states that: IAEcaH "Section 4.109-1. VAT-Exempt Transactions . (A) In general. "VAT-exempt transactions" refer to the sale of goods or properties and/or services and the use or lease of properties that is not subject to VAT (output tax) and the seller is not allowed any tax credit of VAT (input tax) on purchases. xxx xxx xxx (B) Exempt transactions . (1) Subject to the provisions of Subsection (2) hereof, the following transactions shall be exempt from VAT: xxx xxx xxx (p) The following sales of real properties are exempt from VAT, namely: xxx xxx xxx (3) Sale of real properties utilized for socialized housing as defined under RA No. 7279, and other related laws, such as RA No. 7835 and RA No. 8763, wherein the price ceiling per unit is P225,000.00 or as may from time to time be determined by the HUDCC and the NEDA and other related laws. . . . ." Furthermore, pursuant to HUDCC Resolution No. 1, Series of 2008, dated December 11, 2008, and as circularized by Revenue Memorandum Circular No. 30-2009, pertinent portion of which reads: "THEREFORE BE IT RESOLVED, AS IT IS HEREBY RESOLVED that the adjustment of the Low Cost Level 1-A socialized housing loan ceiling from P300,000.00 to P400,000.00 be APPROVED, as the same is hereby APPROVED." the newly adjusted price ceiling of P400,000.00 for socialized housing shall apply to sale of real properties utilized for socialized housing, as defined under R.A. No. 7279 otherwise known as "Urban Development and Housing Act", and other related laws such as R.A. No. 7835 otherwise known as the "Comprehensive and Integrated Shelter Financing Act of 1994" and R.A. No. 8763 otherwise known as the "Home Guaranty Act of 2000", beginning January 1, 2009. Moreover, Section 2 of Revenue Regulations No. 17-2001 provides; Section 2. Definition of Terms. As used in these Regulations, the following terms shall have the following meaning: DHECac xxx xxx xxx "A socialized housing unit shall not exceed P150,000.00 (now P400,000.00) for a house and lot package, subject to periodic adjustment or increase as the Housing and Land Use Regulatory Board (HLURB) may effect from time to time. In the case of sale of homelots only, the price shall not exceed forty percent (40%) of the maximum limit prescribed for the house and lot package ." (Emphasis supplied) The developer of the socialized housing units under RA No. 7279 is exempt from the payment of value-added tax pursuant to the aforecited provision. However, purchases of goods/articles by the project contractor shall be subject to value-added tax, even if the said purchases are to be used for the socialized housing project. Moreover, it shall be understood that it must issue non-VAT official receipts on its gross receipts from the said socialized housing project. Accordingly, sale of the House and Lot/Units in Remberland East Phase 1 covered by HLURB License to Sell No. 22777 (for 46 1 lots & units-socialized housing) covering Block 1, Lots 19 to 34; Block 3, Lots 2, 4, 6, 8; Block 4, Lots 1 to 10; Block 5, Lots 2 and 3; Block 6, Lots 4 to 7; Block 7, Lots 4 to 7; Block 8, Lots 2, 4, 6, 8 and Block 9, Lots 2 and 3 to qualified beneficiaries should be exempt from income taxes and, consequently, from creditable expanded withholding tax and from VAT pursuant to RA 7279. However, sale of the houses and lots covered by HLURB License No. 22777 (for 56 lots & units economic housing) and HLURB License No. 24169 (for 75 lots & units economic housing) are subject to the payment of appropriate taxes. 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. DEICHc Very truly yours, (SGD.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue Footnotes 1. 16 lots/units (Block 5: Lots 2 and 3; Block 8: Lots 2, 4, 6 and 8; Block 6: Lots 4 to 7; Block 9: Lots 2 and 3 and Block 7: Lots 4 to 7) covered by HLURB License to Sell No. 24169 is a compliance to Section 18 of RA No. 7279 in the development of Remberland East Phase 2.