BIR Ruling No. 353-15

October 8, 2015 BIR RULING NO. 353-15 E.O. 226; RR 16-2011; Secs. 57 (B); 106 (A) (1) (a); 196 NIRC; BIR Ruling No. 334-11 Communities Iloilo, 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 August 14, 2014 stating that Communities Iloilo, Inc. ('Communities Iloilo' for brevity) with Tax Identification No. 004-741-841-000 is a domestic corporation duly registered with the Securities and Exchange Commission (SEC) under Company Reg. No. CS095-000241. It is registered with the Board of Investments (BOI) as an Expanding Developer of Low-Cost Mass Housing Project (The Orchard B @ Savannah Brgy. Abilay Norte, Oton, Iloilo) on a Non-Pioneer status under Certificate of Registration No. 2014-123 dated August 13, 2014. Communities Iloilo has been granted Income Tax Holiday (ITH) by the BOI for a period of three (3) years from August 2014 or actual start of commercial operations/selling, whichever is earlier but in no case earlier than the date of registration. Communities Iloilo's The Orchard B @ Savannah Brgy. Abilay Norte, Oton, Iloilo Project is registered with Housing and Land Use Regulatory Board (HLURB) under Certificate of Registration No. 24866 and holds HLURB License to Sell No. 26637; 1 and under the Specific Terms and Conditions of its BOI Registration, Communities Iloilo shall construct and sell two hundred sixty eight (268) units of low-cost mass housing for The Orchard B @ Savannah Brgy. Abilay Norte, Oton, Iloilo Project based on the following schedule: Year Volume (No. of Units) 1 70 2 105 3 93 Total 268 ==== 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 Iloilo, 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. HSAcaE 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 Iloilo's The Orchard B @ Savannah Brgy. Abilay Norte, Oton, Iloilo Project is a BOI registered project, this Office is of the opinion as it hereby holds, that income payments received by Communities Iloilo in connection with its housing project, The Orchard B @ Savannah Brgy. Abilay Norte, Oton, Iloilo (on the 268 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 August 2014 or actual start of commercial operations/selling, whichever is earlier but in no case earlier than the date of registration. 2 It must be emphasized, however, that the above exemption from CWT covers only income directly attributable to revenues generated from its registered activity, Communities Iloilo's The Orchard B @ Savannah Brgy. Abilay Norte, Oton, Iloilo Project involving 268 low-cost mass housing unit as mentioned in the Specific Terms and Conditions of its BOI Registration. Furthermore, such exemption shall not cover revenues from units with selling price exceeding Three Million Pesos (P3,000,000.00). 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 Iloilo's The Orchard B @ Savannah Brgy. Abilay Norte, Oton, Iloilo Project is not automatic as it still has to comply with the following provisions of the Specific Terms and Conditions of their BOI Registration, viz. : 1. The enterprise shall submit proof of verified compliance with the 20% socialized housing requirement for its existing projects under C.R. No. 2011-151 dated July 15, 2011 before availment of ITH. Compliance with 20% socialized housing requirement should be proportionate to the number of low-cost housing units being applied for ITH for the taxable year. 2. 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: (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 realize the extent of economic benefits represented by the proponent at the time of its application. 3. The enterprise shall comply with the following representations: a. Net Value Added (NVA) should be at least 25% Y1 Y2 Y3 NVA 97.66% 97.66% 97.67% b. Job Generation Number of Employees Total Pre-operating Y1 Y2 Y3 Employees 2 106 159 142 c. Investments and Timetable Activity Schedule Related Cost Expense/s (In Php'000) Land acquisition February 2008 Land Cost 13,732 to December 2013 Secure necessary April 2008 to Pre-operating 11,508 license/permit/ November 2016 Expenses registration from the government/ training costs Site preparation and August 2013 to Land/Site 63,073 development February 2016 Development Building Construction September 2013 Building 209,926 to July 2016 Construction Start of Commercial August 2014 Working 5,000 Operations Capital Total Project Cost 303,239 (TPC) ======= d. Sales Revenues Year Volume (No. of Units) Value (PhP) 1 70 153,007 2 105 228,281 3 93 203,063 Total 268 584,351 === ====== Net income qualified for ITH availment shall not be a result of gross revenues exceeding 10% of the projected gross revenue represented by the firm in its application. In cases where the project's actual revenues exceed the projections in its application due to new markets/orders; additional employment/shifts, additional investments, the Board may increase the project's ITH availment proportionately. Request/s for adjustment of projected revenue must be filed before the filing of application for ITH. HESIcT 4. The enterprise shall submit a list of common cost items and cost allocation methodology for its other projects/activities (whether BOI-registered or non-BOI-registered) and the methodology adopted in allocating the common costs between the registered activity/ies and non-registered activity/ies. 5. Secure from the HLURB an endorsement that it has faithfully complied with the approved development plan and a "Certificate of Good Housekeeping". 6. File an application with the BOI Incentives Service 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. 7. Secure a Certificate of ITH Entitlement (CoE) from the BOI Legal Service (LS) prior to filing of ITR with the BIR; otherwise, ITH for that particular year without CoE shall be forfeited. 8. 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. 9. The enterprise shall submit proof of compliance that at least twenty percent (20%) of the total subdivision area (estimated at 9,223 sq.m.) or total subdivision project cost (estimated at PhP60,647,800.00M) has been developed and allocated for socialized housing within one year from date of registration or prior to availment of ITH, whichever is earlier. This may be done through any of the following modes: The investment scheme may be complied with through any of the following modes: (1) Development of new settlement directly undertaken by registered activity; (2) Slum Upgrading; and (3) Development of a new settlement through joint venture arrangements with either: a Local Government Unit, the National Housing Authority, a subsidiary of the BOI-registered entity, or a developer accredited by the HLURB. Compliance with the twenty (20%) percent housing requirement must be completed within the ITH availment period and should be proportionate to the number of low-cost housing units being applied for ITH for the taxable year. 10. The enterprise must commit to the tenets of Good Governance. 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 Iloilo's The Orchard B @ Savannah Brgy. Abilay Norte, Oton, Iloilo Project was clearly granted a 3-year ITH but such terms and conditions do not provide for any exemption from other taxes that Communities Iloilo may be subject to on its business transactions. Thus, Communities Iloilo's The Orchard B @ Savannah Brgy. Abilay Norte, Oton, Iloilo 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. 3 Thus, only the sales by Communities Iloilo's The Orchard B @ Savannah Brgy. Abilay Norte, Oton, Iloilo Project of housing units with selling price of not more than the aforementioned price ceilings shall be exempt from VAT. It should be understood that Communities Iloilo shall be constituted as a withholding agent for the government if it acts as employer and any of its employees receive 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 Iloilo 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 Iloilo'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 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. HLURB License to Sell No. 26637 issued to Communities Iloilo for The Orchard B @ Savannah Brgy. Abilay Norte, Oton, Iloilo Project covers 274 saleable lots with housing units. 2. Movement of ITH period is subject to Art. 7 of E.O. 226 per BOI Specific Terms and Conditions No. 1. 3. 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.