BIR Ruling No. 309-15

September 15, 2015 BIR RULING NO. 309-15 Section 30 (E) of the Tax Code of 1997; BIR Ruling No. 174-11; BIR Ruling No. 172-11; BIR Ruling No. 165-11 Get with D' Act Philippines, Inc. 54-A J. Leido St.,Brgy. BF Homes Sector 10, Paraaque 1718 Attention: Christian David Galdo Aguilar President Gentlemen : This refers to your letter dated August 14, 2013 requesting for the issuance of a certificate of tax exemption enjoyed by non-stock corporation or association organized and operated exclusively for scientific purposes under Section 30 (E) of the Tax Code of 1997, as amended. It is represented that GET WITH D' ACT PHILIPPINES, INC. with Taxpayer's Identification No. 008-575-830-000, is a non-stock, non-profit corporation duly organized under the laws of the Philippines; that it is registered with the Securities and Exchange Commission (SEC) under Company Registration No. CN201313586 dated July 17, 2013; and that the purposes for which it was incorporated are: (1) To fund the research and development of appropriate technologies, specifically urban agriculture, providing local sources of fresh and organic produce and building sustainable communities; and (2) To provide and facilitate affordable and holistic early childhood education and promote English language education in the Philippines . In reply, please be informed that this Office cannot as yet issue the requested ruling/certificate of tax exemption because GET WITH D' ACT PHILIPPINES, INC. has to prove by actual operation for at least three (3) years that it is really a corporation/association exempt from income tax under Section 30 (E) of the Tax Code of 1997, as amended. (BIR Ruling No. 174-11 dated May 27, 2011) GET WITH D' ACT PHILIPPINES, INC. shall file the necessary annual information return instead of an income tax return on or before the 15th day of the fourth month following the end of its taxable year as required under Section 24 of Revenue Regulations No. 2-40 dated February 10, 1940 (Collector vs. Sinco, G.R. L-9276 dated October 23, 1956) .Based on such information return, we shall conduct the necessary investigation on the activities undertaken during the period. The letter of exemption shall thereafter be issued depending upon the result of our investigation. Hence, GET WITH D' ACT PHILIPPINES, INC. is subject to the corresponding internal revenue taxes imposed under the National Internal Revenue Code 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 benefits 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. 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. 165-11 dated May 23, 2011) It should be understood that GET WITH D' ACT PHILIPPINES, INC. shall be constituted as withholding agent of the government if it acts as an employer and its employee receives 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 expanded withholding tax provided for in Section 57 (B) of the Tax Code of 1997, also as implemented by Revenue Regulations No. 2-98, as amended. (BIR Ruling No. 172-11 dated May 25, 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. GET WITH D' ACT PHILIPPINES, INC. 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]. SDHTEC Value-Added Tax 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. Accordingly, if GET WITH D' ACT PHILIPPINES, 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. Notwithstanding that it is incorporated as 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 Sections 106 to 108 of the said Code. 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. 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. (BIR Ruling No. 150-13 dated April 17, 2013) Finally, for purposes of securing a certificate of tax exemption after the three (3)-year period, GET WITH D' ACT PHILIPPINES, INC. is required to submit the following documents pursuant to Revenue Memorandum Order No. 20-2013: a) Original copy of application letter for issuance of Tax Exemption Ruling. The letter shall cite the particular paragraph of Section 30 of the NIRC, as amended, under which the application for exemption/revalidation is being based; b) Certified true copy of the Certificate of Incorporation, latest Articles of Incorporation and By-Laws issued by the Securities and Exchange Commission; c) Original copy of Certification under Oath by an executive officer of the corporation or association as to: i) all previous amendments/changes in the Articles of Incorporation and By-Laws; ii) manner of activities; and iii) the sources and disposition of income, if any, of the subject corporation or association. If there are no amendments/changes, the Certification shall state this fact. d) Certified true copy of the Certificate of Registration with the BIR; e) Original copy of the Certification under Oath by the Treasurer of the corporation or association as to the amount of income, compensation, salaries or any emoluments paid by the corporation or association to its trustees, officers and other executive officers. f) Original copy of the Certification issued by the RDO where the corporation or association is registered that the corporation or association is not the subject of any pending investigation, on-going audit, pending tax assessments, administrative protest, claim for refund or issuance of tax credit certificate, collection proceedings, or judicial appeal; or if thereby any, the Original copy of the Certification issued by the RDO on the status thereof; g) Certified true copies of the Income Tax Returns or Annual Information Returns and Financial Statements of the corporation or association for the last three (3) years; and h) Original copy of a statement under Oath by an executive officer of the corporation or association as to its modus operandi which shall include: i) A full description of the past, present, and proposed activities of the corporation or association; ii) A narrative description of anticipated receipts and contemplated expenditures; and iii) A detailed description of all revenues which it seeks to be exempted from income tax. All other revenues which are not included in the statement/application shall be subject to income tax. AScHCD This ruling is being issued on the basis of the foregoing facts as represented. However, if upon investigation, it will be ascertained 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