BIR Ruling No. 366-12

May 31, 2012 BIR RULING NO. 366-12 Sections 27 (D) (1), 30 (C); 105 of the Tax Code of 1997, as amended; BIR Ruling No. 173-11; BIR Ruling No. 046-11; BIR Ruling No. 044-11; BIR Ruling No. 041-11 Cebu Hanin Hue, Inc. 2F Office 5, First Cebu Building Matumbo Road Pusok, Lapu-Lapu City Attention: HWY Chang Park President Gentlemen : This refers to your letter dated September 28, 2010 duly indorsed by Revenue Region No. 13-Cebu City, requesting for tax exemption pursuant to Section 30 (C) of the Tax Code of 1997, as amended. aSTECA It is represented that Cebu Hanin Hue, Inc. with Taxpayer's Identification No. 297-249-352-000, 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 Registration No. CN201025794 and with SEC Certificate of Incorporation dated July 7, 2010; and that the purposes for which it was incorporated are the following: 1) To promote, encourage and foster stronger and more active fellowship, cooperation, helpfulness and friendly relations among the members; 2) To minimize and adjust differences and controversies among the members; 3) To contribute to the general welfare of the members as well as the citizens of the Philippines; 4) To advance and promote the commercial, economic, educational, social interest and well-being of the members; 5) To perform all incidental and everything necessary and proper for the attainment of the purposes or the furtherance of any of the powers above set forth, either alone or in association with other juridical or natural persons. In reply, please be informed that this Office cannot as yet issue the requested ruling/certificate of tax exemption because Cebu Hanin Hue, Inc. has to prove by actual operation for at least three (3) years that it is really an organization/association exempt from income tax under Section 30 (C) of the Tax Code of 1997, as amended. Cebu Hanin Hue, Inc. can file the necessary annual information return instead of an income tax return on or before the 15th day of the fourth month of the preceding accounting period following the start of its operation as an exempt organization 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. However, Cebu Hanin Hue, 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. CDAcIT It should be understood that Cebu Hanin Hue, 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. 173-11 dated May 25, 2011 and BIR Ruling No. 046-11 dated February 16, 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. (BIR Ruling No. 044-11 dated February 14, 2011 and BIR Ruling No. 041-11 dated February 10, 2011) Finally, it 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]. For purposes of securing a permanent exemption after the three (3)-year period, Cebu Hanin Hue, Inc. is required to submit the following documents pursuant to Revenue Memorandum Circular No. 14-2001: 1) Certified true copy of the Certificate of Registration with the SEC; 2) Certified true copy of the Articles of Incorporation which includes the following provisions: a. That the corporation is non-stock, non-profit; b. That the primary purpose for which it was created is one of those enumerated under Sec. 30 of the Tax Code of 1997, as amended; c. That no part of the net income shall inure to the benefit of any of its members; STIHaE d. That the trustees do not receive any compensation; and e. In case of dissolution, assets of the corporation shall be transferred to similar institution or to the government. 3) Certified true copy of the By-Laws; 4) Certification under oath that there has not been any change in the Articles of Incorporation and/or By-laws; 5) Certified true copy of the Annual Information Returns and Financial Statements for the last three (3) years of operation; 6) BIR Certificate of Registration. 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