BIR Ruling No. 331-14

August 14, 2014 BIR RULING NO. 331-14 E.O. 226; Secs. 57 (B); 106 (A) (1) (a); 196 NIRC; BIR Ruling No. 334-2011 Axeia Development Corp. Asiatic Building, Phoenix Sun Business Park E. Rodriguez Jr., Ave., Bagumbayan (Libis) 1 Quezon City Attention: Geoffrey T. Quiec VP-Operations Gentlemen : This refers to your letter dated May 30, 2011 requesting, on behalf of Axeia Development Corp. ("Axeia") ,a certificate of tax exemption from income and expanded withholding taxes for its low-cost mass housing project, Zuri Residences-Brgy. Dolores, Taytay, Rizal, on account of its registration with the Board of Investments (BOI) under Executive Order No. 226, otherwise known as the "Omnibus Investments Code of 1987". It is represented that Axeia, with Tax Identification No. (TIN) 000-436-566-000, is a domestic corporation duly organized under the Philippine laws; that the Corporation is registered with the Securities and Exchange Commission (SEC) bearing SEC Certificate of Registration No. 41642; that the Corporation is primarily engaged in the real estate business; that at present, it has a low-cost mass housing project, Zuri Residences located at Brgy. Dolores, Taytay, Rizal; that the said project is registered with the Board of Investments per Certificate of Registration No. 2013-085 dated April 1, 2013 under the Omnibus Investments Code of 1987 (E.O. 226); that the Corporation shall be entitled to income tax holiday (ITH) for the above-project for a period of four (4) years beginning from April 2013 or actual start of commercial operations/selling, whichever is earlier, but in no case earlier than the date of registration; that the ITH of the Corporation shall be limited only to the revenue generated from the registered housing project, Zuri Residences-Brgy. Dolores, Taytay, Rizal: and that the aforesaid project is duly registered with the Housing and Land Use Regulatory Board (HLURB) under Certificate of Registration No. 24046 and License to Sell No. 26143 pursuant to Batas Pambansa 220. Axeia, under the Specific Terms and Conditions of its BOI Registration for Zuri Residences-Brgy. Dolores, Taytay, Rizal housing project, is obligated to construct and sell Two Hundred Fifty One (251) low-cost mass housing units based on the following schedule: Year Volume (No. of Value (P'000) Units) 1 62 166,350 2 64 174,127 3 63 174,850 4 62 174,675 Total 251 690,002 ==== ======= 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. ( BIR Ruling No. 334-2011 dated September 7, 2011 ) Accordingly, since Zuri Residences-Brgy. Dolores, Taytay, Rizal, is a BOI registered housing project, this Office is of the opinion as it hereby holds, that income payments received by Axeia in connection with the aforementioned housing project, 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 (4) years beginning from April 2013 or actual start of commercial operations/selling, whichever is earlier, but in no case earlier than the date of registration. ITDHcA It must be emphasized, however, that the above exemption from the creditable withholding tax covers only the revenues generated from Axeia's registered housing project, Zuri Residences-Brgy. Dolores, Taytay, Rizal. 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 ). In the computation of ITH, interest income from in-house financing shall not be considered as part of the revenues generated from the registered activity. Moreover, Axeia's entitlement to ITH for its housing project, Zuri Residences-Brgy. Dolores, Taytay, Rizal, is not automatic as it has still to comply with the provisions 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) In the grant of incentives, the extent of the project's ITH entitlement shall be based on the project's ability to contribute to the economy's development based on the following parameters: (1) net value added, (2) job generation, (3) multiplier effect, and (4) measured capacity. The Board may reduce the ITH if the project does not materialize the extent of economic benefits represented by the proponent at the time of its application. The enterprise shall comply with the following representations: a. Net Value Added should be at least 25% Year 1 Year 2 Year 3 Year 4 NVA 97% 98% 98% 98% b. Job Generation Number of Employees Y1 Y2 Y3 Y4 Total Employees 49 49 49 49 c. Investments and Timetable Activity Schedule Related Cost (Month/Year) Expenses (Php'000) 1. Land Acquisition May 2011 Land Cost 78,917 2. Secure necessary June 2012 Pre- 3,950 license/permit/registration Operating from the Expenses government/training costs 3. Site Preparation and January 2012 Land/Site 32,392 Development to December Development 2016 Cost 4. House Construction July 2012 to Building 271,183 June 2016 Construction Cost 5. Start of Commercial April 2013 Working 2,000 Operations Capital Total Project Cost 389,442 ====== d. Sales Revenues ICcaST Year Volume (No. of Value (P'000) Units) 1 62 166,350 2 64 174,127 3 63 174,850 4 62 174,675 Total 251 690,002 ==== ====== Net income that exceeds 10% of the revenue represented at the time of application shall not be eligible to ITH unless the Board is informed in writing by the proponent in advance before the revenue is expected to exceed the projections in the application for registration submitted to the Board; (3) The enterprise shall maintain a book of account for the registered project separate from all its other operation/s and/or activity/ies; (4) File an application with the BOI Incentive 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; (5) 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; (6) In the event the enterprise fails to maintain the 75:25 debt-equity ratio requirement, it shall show proof that the construction of housing units have been completed and delivered to buyers prior to availment of ITH. Otherwise, the enterprise shall not be entitled to ITH and shall be required to refund any capital equipment incentives availed of. (7) The Corporation shall submit a proof of compliance that, at least twenty percent (20%) of the total subdivision area (estimated at 9,832 sq.m.) or total subdivision project cost (estimated at P77.888M) has been developed and allocated for socialized housing within one year from date of registration or prior to availment of ITH, whichever is earlier. Otherwise, the ITH for that particular taxable year shall be deemed forfeited; (8) The enterprise shall ensure (a) that its contractors are duly licensed by the Philippine Contractors Accreditation Board (PCAB) as required under Republic Act 4566 ("Contractors License Law") and (b) that any construction activity, under its project and supervision shall be undertaken in accordance with the rules and regulations prescribed by PCAB as well as all applicable laws; and (9) The enterprise shall submit to the BOI Supervision and Monitoring Department, on a quarterly basis within fifteen (15) days from the end of each quarter, a report on Actual Investments, Employment, Sales and other information that the Board may require at anytime with respect to the registered project starting on date of registration. 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, Axeia was clearly granted a 4-year ITH for its project, Zuri Residences-Brgy. Dolores, Taytay, Rizal, but such terms and conditions do not provide for any exemption from other taxes that the Corporation may be subject to on its business transactions. Thus, Axeia 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) IaDTES 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) 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) and below is VAT-exempt. 1 Thus, only the sales by Axeia of housing units with selling price of not more than the aforementioned price ceiling shall be exempt from VAT. It should be understood that Axeia 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 (RR) No. 2-98 ,as amended. Likewise, Axeia 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, Axeia'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 is 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 Bureau of Internal Revenue Footnotes 1. The increase in the threshold amounts 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 .