BIR Ruling No. 319-14

August 11, 2014 BIR RULING NO. 319-14 E.O. 226; RR 16-2011; Secs. 57 (B); 106 (A) (1) (a); 196 NIRC; BIR Ruling No. 334-11 Communities Davao, Inc. Mezzanine Floor, Starmall Complex EDSA cor. Shaw Blvd. Mandaluyong City Attention: Atty. Cecilia A. Ramilo Tax Department Head Gentlemen : This refers to your letter dated January 05, 2012 stating that Communities Davao, Inc. (Communities Davao for brevity),with Tax Identification No. 004-740-210-000 is a domestic corporation duly registered with the Securities and Exchange Commission (SEC) under Company Reg. No. ASO95-09116. It is registered with the Board of Investments (BOI) as an Expanding Developer of Low-Cost Mass Housing Project (Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao City) on a Non-Pioneer status under Certificate of Registration No. 2011-281 dated December 27, 2011 in accordance with the Omnibus Investments Code of 1987 or Executive Order (EO) 226. Communities Davao has been granted Income Tax Holiday (ITH) by the BOI for a period of three (3) years from December 2011 or actual start of commercial operations/selling, whichever is earlier but in no case earlier than the date of registration. Communities Davao's Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao City Project is registered with Housing and Land Use Regulatory Board (HLURB) under Certificate of Registration No. 19155 and holds HLURB License to Sell No. 24819; and under the Specific Terms and Conditions of its BOI Registration, Communities Davao shall construct and sell two hundred fifty (252) * units of low-cost mass housing for Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao City Project based on the following schedule: Year Volume (No. of Units) Value (Php'000) 1 85 173,551 2 92 168,230 3 75 145,090 Total 252 486,871 === ====== 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 Communities Davao, 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. EcHTCD 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. Accordingly, since Communities Davao's Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao City Project is a BOI registered project, this Office is of the opinion as it hereby holds, that income payments received by Communities Davao in connection with its housing project, Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao City (on the 252 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 3 years from December 2011 or actual start of commercial operations/selling, whichever is earlier but in no case earlier than the date of registration. It must be emphasized, however, that the above exemption from CWT covers only income directly attributable to revenues generated from its registered activity, Communities Davao's Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao City Project. Furthermore, such exemption shall not cover revenues from units with selling price exceeding Two Million Five Hundred Pesos (P2,500,000.00). * (BIR Ruling No. 334-11 dated September 7, 2011). 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 Communities Davao's Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao 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. 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). 2. Secure from the HLURB an endorsement that it has faithfully complied with the approved development plan and a "Certificate of Good Housekeeping"; 3. 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; cTSDAH 4. 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. 5. 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 in this order of importance: (1) project's net value added, (2) job generation, (3) multiplier effect, and (4) measured capacity. In the event that the registered enterprise fails to implement the project as represented in its project application, the Board may reduce the project's ITH entitlement proportionate to the actual performance of the enterprise. The project's entitlement to incentives shall be based on the following: a. Net Value Added (NVA) should be at least 25% Year 1 Year 2 Year 3 NVA 97% 97% 97% b. Job Generation Year 1 Year 2 Year 3 Total Employees 170 167 137 c. Investments and Timetable Activity Schedule Related Cost Expense/s (In Php'000) Site acquisition Completed Raw land 14,559 Obtained DA, DENR, 2,000 appropriate On-going EMB, DAR, license/Agreement/ HLURB permit from the government Site preparation and March Site 8,604 development 2011 to preparation Nov. 2014 House construction March 209,901 2011 to Nov. 2014 Capital Equipment May 2014 Elevator set 2,400 Acquisition Start of commercial December Working 5,000 operation 2011 capital Total Project Cost 242,464 ====== d. Sales Revenues aAEIHC Year Volume (No. of Units) Value (Php'000) 1 85 173,551 2 92 168,230 3 75 145,090 Total 252 486,871 === ====== Income qualified for ITH availment shall not exceed by more than 10% of the projected income represented by the enterprise in its application provided the projects's actual investments and employment match the enterprise's representation in its application. In cases where the project's actual revenues exceed the projections in its application by more than 10%,the Board may increase the project's ITH availment proportionately for reasons such as but not limited to (a) additional investments; (b) new markets/orders; (c) additional employment and/or increase in number of working shifts. Request for adjustment of projected income may be submitted to the Board within the ITH entitlement period. 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, Communities Davao's Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao City Project was clearly granted a 3-year ITH but such terms and conditions do not provide for any exemption from other taxes that Communities Davao may be subject to on its business transactions. Thus, Communities Davao's Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao 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. 1 Thus, only the sales by Communities Davao's Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao City Project of housing units with selling price of not more than the aforementioned price ceilings shall be exempt from VAT. SDEITC It should be understood that Communities Davao's Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao 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 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, Communities Davao's Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao 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, Communities Davao's Camella Northpoint Nottingham Building JP Laurel Avenue corner Dakudao Road, Davao 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. Very truly yours, (SGD.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue Footnotes 1. 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 .