Ayala Westgrove Heights

July 17, 2019 BIR RULING NO. 385-19 R.A. No. 9904; R.A. No. 8424; RMC No. 09-2013; BIR Ruling No. 105-14 Ayala Westgrove Heights Homeowners' Association, Inc. The Clubhouse, Pili Road, Ayala Westgrove Heights, Silang, Cavite 4118 Attention: AAA _______________ Gentlemen : This refers to your letter dated January 15, 2019, requesting for a ruling confirming the exemption from income tax and value-added tax/percentage tax of AYALA WESTGROVE HEIGHTS HOMEOWNERS' ASSOCIATION, INC. , pursuant to Republic Act No. 9904 otherwise known as the "Magna Carta for Homeowners and Homeowners' Associations," as enunciated in Revenue Memorandum Circular No. 9-2013 which clarifies the taxability of association dues, membership fees, and other assessments/charges collected by Homeowners' Associations. AaCTcI Documents submitted disclosed that AYALA WESTGROVE HEIGHTS HOMEOWNERS' ASSOCIATION, INC. , is a non-stock and non-profit residential homeowners' association, with Taxpayers Identification No. 000-000-000-000 and duly registered with the Housing and Land Use Regulatory Board under Certificate of Registration No. 04-4780; that it is situated and within the jurisdiction of Silang, Cavite; and that among the purposes for which the Association was incorporated are the following: 1. To promote and advance the best interest, general welfare, prosperity and safeguard the well-being of the homeowners or long-term lessees at Ayala Westgrove Heights, a residential subdivision registered with the Housing and Land Use Regulatory Board (HLURB), the territorial boundaries of which are the areas within the following parcel of land: A parcel of land, with the improvements existing thereon, situated in the Bo. of Inchican (formerly Bo. of Carmen), Municipality of Silang, Province of Cavite, Island of Luzon, containing an area of ONE MILLION ONE HUNDRED AND TWENTY-THREE THOUSAND ONE HUNDRED AND SEVENTY-TWO (1,123,172) square meters, more or less; As such parcel is identified and delineated in the sketch plan hereto attached as Annex "A" with technical description hereto attached as Annex "A-1", all annexes made an integral part hereof, and such other areas or parcels which may be annexed to and made part of Ayala Westgrove Heights as registered with the HLURB or its successor agency/agencies, such areas or parcels hereby being deemed part of the territorial boundaries of Ayala Westgrove Heights without need for any corporate action or further amendments of this Second Article and that for the purpose of determining the extent of the territorial boundaries of Ayala Westgrove Heights, the subdivision plans for other phases submitted and approved by the HLURB or its successor agency/agencies shall be controlling. Ayala Westgrove Heights is envisioned as a planned community, and an integral part of Ayala Land, Inc.'s master planned development called Ayala South. Consequently, the association shall automatically become a member of the federation of Associations of Ayala South, upon formation of the latter, an alliance of associations of the communities and developments within Ayala South, which is intended to be formed by Ayala Land, Inc., the developer of Ayala Westgrove Heights, for the purpose of maintaining, administering, equipping, supplying and providing the Association and other members with the common facilities, utilities and services for Ayala South, and binds itself to pay all dues and assessments duly imposed by said federation of associations of Ayala South, and to comply with the by-laws and reasonable rules and regulations thereof; 2. To construct, manage, maintain and operate adequate facilities and services for the members of the Association; 3. To initiate and organize socio-cultural projects and activities which will awaken community consciousness and belonging; 4. To promote, enhance and foster the development and improvement of the quality of life of the members of the Association through livelihood projects and other economic activities; EcTCAD 5. To acquire, accept donations, purchase, own, hold, develop, lease, mortgage, pledge, exchange, sell, transfer or otherwise invest, deal in or trade in any manner permitted by law, real and personal property of every kind and description, or any interest therein, as may be necessary for the accomplishment of the purposes of the Association; 6. To borrow and otherwise contract indebtedness and issue notes, bonds and other evidence of indebtedness and to secure payment therefor by mortgage, pledge or deed of trust of, or through encumbrance on any or all of its then-owned or after-acquired real or personal properties and assets; 7. To enter into, make, perform and carry out, or cancel and rescind contracts of very kind and for any lawful purpose with any person, firm, association, corporation, syndicate, domestic or foreign, or others; and 8. To do and perform any other acts and things, and to have and exercise any other powers which may be necessary, convenient and appropriate to accomplish the purposes for which the Association is organized. and that the Municipal Mayor of Silang, Cavite, Hon. Emilia Lourdes F. Poblete, on January 7, 2019 certified that: "Ayala Westgrove Heights Homeowners Association, Inc. renders basic community services and provides facilities that redound to the benefit of all its homeowners, lessees and occupants in general, and which by reason of practicality, no homeowner, lessee or occupant may be excluded therefrom, such as but not limited to: safety and security, lighting of streets and vicinity, maintenance, repairs and cleaning of streets and facilities, garbage collection and disposal, and other similar services and facilities. This is to certify further that the Municipal Government of Silang, Cavite, which has territorial jurisdiction over Ayala Westgrove Heights, lacks sufficient resources to provide the foregoing basic services to its constituents in general." AYALA WESTGROVE HEIGHTS HOMEOWNERS' ASSOCIATION, INC. bases its claim for tax exemption on Section 18 of R.A. No. 9904, which provides: " SECTION 18. Relationship with LGUs . Homeowners' associations shall complement, support and strengthen LGUs in providing vital services to their members and help implement local government policies, programs, ordinances, and rules. Associations are encouraged to actively cooperate with LGUs in furtherance of their common goals and activities for the benefit of the residents of the subdivisions/villages and their environments. Where the LGUs lack resources to provide for basic services, the associations shall endeavor to tap the means to provide for the same. In recognition of the associations' efforts to assist the LGUs in providing such basic services, association dues and income derived from rentals of their facilities shall be tax-exempt: Provided, That such income and dues shall be used for the cleanliness, safety, security and other basic services needed by the members, including the maintenance of the facilities of their respective subdivisions or villages . x x x" In reply thereto, considering that AYALA WESTGROVE HEIGHTS HOMEOWNERS' ASSOCIATION, INC. is a duly registered Homeowners Association with the HLURB; that its financial statements show the delivery of basic community services defined under Sec. 3 (d) of R.A. 9904; and that the Local Government Unit covering the jurisdiction of the Homeowners Association has issued a Certificate that it lacks the resources to provide these services to the Association, this Office hereby holds that the income derived from association dues, membership fees, other assessments and charges collected in a purely reimbursement basis and rentals of facilities of AYALA WESTGROVE HEIGHTS HOMEOWNERS' ASSOCIATION, INC. is exempt from income tax, value-added tax 1 or percentage tax, whichever is applicable. Provided, that such income and dues shall be used for the cleanliness, safety, security and other basic services needed by the members, including the maintenance of the facilities of their respective subdivisions or villages. HSAcaE However, AYALA WESTGROVE HEIGHTS HOMEOWNERS' ASSOCIATION, INC. shall be subject to the applicable internal revenue taxes on its other income from trade, business or other activities. Specifically: Income Tax It shall be subject to the corresponding internal revenue taxes imposed under the Tax Code of 1997, as amended, on its income derived from sources other than rental of its facilities, association dues, membership fees, other assessments and charges collected on a purely reimbursement basis which income should be returned for taxation. Likewise, interest income from currency bank deposits and yield or any other monetary benefit 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 from it from a depository bank under the expanded foreign currency deposit system shall be subject to 15% 2 final withholding tax pursuant to Section 27 (D) (1) in relation to Section 57 (A), both of the Tax Code of 1997, as amended. Moreover, it is required to file on or before April 15 of each year a profit and loss statement and balance sheet with the annual information return under oath, stating its gross income and expenses incurred during the year 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 resources and disposition of income. Value-Added Tax or Percentage Tax Likewise, AYALA WESTGROVE HEIGHTS HOMEOWNERS' ASSOCIATION, INC. 's gross receipts from operations not derived from rental of its facilities, association dues, membership fees, other assessment and charges collected in a purely reimbursement basis shall be subject to the 12% VAT as imposed under Section 108 of the Tax Code of 1997, as amended, which tax payment may legitimately be passed on to buyers of such goods and services; or 3% percentage tax imposed under Section 116 in relation to Section 109 (BB) of the same Code if the gross sales or receipts from such sale of goods and services do not exceed Three Million Pesos (P3,000,000.00). 3 It is requested that a copy of this letter of exemption be attached to the annual information return which AYALA WESTGROVE HEIGHTS HOMEOWNERS' ASSOCIATION, INC. will file on or before the 15th day of the fourth month of each year. Under Section 235 of the Tax Code of 1997, as amended, any provision of existing general or special law to the contrary notwithstanding, the Revenue District Officer shall conduct an audit of annual information return filed, the books of accounts and other pertinent records of AYALA WESTGROVE HEIGHTS HOMEOWNERS' ASSOCIATION, INC. to determine compliance with the conditions set forth in this letter of tax exemption and tax liabilities, if any. It should be understood that AYALA WESTGROVE HEIGHTS HOMEOWNERS' ASSOCIATION, INC. shall be constituted as withholding agent of the government if it acts as an employer and its employees receive compensation income subject to the withholding tax under Section 57 of the Tax Code of 1997, as amended. HESIcT Finally, AYALA WESTGROVE HEIGHTS HOMEOWNERS' ASSOCIATION, INC. is also 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 for services rendered which do not comprise income from association dues and rentals of their facilities. 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.) CAESAR R. DULAY Commissioner of Internal Revenue Footnotes 1. Section 4.109-1 (B) (1) (y) of the RR No. 13-2018. 2. Republic Act No. 10963 increased the tax rate from 7.5% to 15% effective January 1, 2018. 3. Republic Act No. 10963 increased the VAT threshold from P1,919,500.00 to P3,000,000.00 effective January 1, 2018.