BIR Ruling No. 406-13

November 8, 2013 BIR RULING NO. 406-13 E.O. 226; RR 16-2011; Secs. 57 (B): 106 (A) (1) (a); 196 NIRC; BIR Ruling No. 334-11 Communities Palawan, 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 November 20, 2012 stating that Communities Palawan, Inc. (Communities Palawan for brevity) with Tax Identification No. 008-157-894-000 is a domestic corporation duly registered with the Securities and Exchange Commission (SEC) under Company Reg. No. CS201119535. It is registered with the Board of Investments (BOI) as a New Developer of Low-Cost Mass Housing Project (Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan) on a Non-Pioneer status under Certificate of Registration No. 2012-241 dated November 19, 2012. Communities Palawan has been granted Income Tax Holiday (ITH) by the BOI for a period of four (4) years from November 2012 or actual start of commercial operations/selling, whichever is earlier but in no case earlier than the date of registration. Communities Palawan's Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan Project is registered with Housing and Land Use Regulatory Board (HLURB) under Certificate of Registration Nos. 24346 and 24347, and holds HLURB License to Sell Nos. 26109 and 26110; and under the Specific Terms and Conditions of its BOI Registration, Communities Palawan shall construct and sell three hundred twenty eight (328) units of low-cost mass housing for Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan Project based on the following schedule: HCITAS Year Volume (No. of Units) 1 62 2 157 3 76 4 33 Total 328 === 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 Palawan, 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. 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 Palawan's Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan Project is a BOI registered project, this Office is of the opinion as it hereby holds, that income payments received by Communities Palawan in connection with its housing project, Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan Project (on the 328 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 4 years from November 2012 or actual start of commercial operations/selling, whichever is earlier but in no case earlier than the date of registration. 1 It must be emphasized, however, that the above exemption from CWT covers only income directly attributable to revenues generated from its registered activity, Communities Palawan's Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan Project. Furthermore, such exemption shall not cover revenues from units with selling price exceeding Three Million Pesos (P3,000,000.00). (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 Palawan's Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan 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. : DITEAc 1. The enterprise shall increase its Stockholders' Equity by at least PhP47,300,545.00 equivalent to 25% of the total project cost and shall submit proof of compliance before availment of ITH. Equity shall include paid-up capital stock, additional paid-in capital and unrestricted retained earnings, and restricted retained earnings provided that such is intended for the project. Appraisal surplus and treasury stock should not be included as part of stockholders equity for this purpose. 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 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% Average Year 1 Year 2 Year 3 Year 4 NVA 97.82% 97.81% 97.82% 97.82% 97.82% b. Job Generation Pre-op Year 1 Year 2 Year 3 Year 4 Total 2 90 225 105 45 Employees c. Investments and Timetable cTDaEH Activity Schedule Related Cost Expense/s (In Php'000) Land acquisition November Land cost 37,312 2011 Secure necessary May 2012 Pre- 6,870 license/permit/ to operating registration from the December expenses government/training 2012 costs Site preparation and September Land/site 50,745 development 2012 to development December 2015 House construction October Building 188,226 2012 to construction September 2016 Start of commercial November Working 5,000 operation 2012 capital Total Project Cost 288,153 ====== d. Sales Revenues Year Volume Value (No. of Units) (Php'000) 1 62 104,370 2 157 264,557 3 76 128,181 4 33 55,118 Total 328 552,226 === ====== Net income qualified for ITH availment shall not be a result of gross revenues exceeding 10% of the projected gross revenue represented by the enterprise in its application provided the project's actual investments and employment match the enterprise's representations in its application. 3. 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). 4. Secure from the HLURB an endorsement that it has faithfully complied with the approved development plan and a "Certificate of Good housekeeping". cHaICD 5. 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. 6. 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. 7. 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. 8. Submit proof of compliance that at least twenty percent (20%) of the total subdivision area or total subdivision project cost 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 year shall be deemed forfeited. Compliance with the 20% socialized 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. 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 Palawan's Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan Project was clearly granted a 4-year ITH but such terms and conditions do not provide for any exemption from other taxes that Communities Palawan may be subject to on its business transactions. Thus, Communities Palawan's Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan 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. 2 Thus, only the sales by Communities Palawan's Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan Project of housing units with selling price of not more than the aforementioned price ceilings shall be exempt from VAT. DcICEa It should be understood that Communities Palawan's Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan 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 Palawan's Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan 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 Palawan's Camella Puerto Princesa Gabinete Road, Brgy. Bancao-Bancao, Puerto Princesa City, Palawan 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 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. Movement of ITH period is subject to Art. 7 of E.O. 226 per BOI Specific Terms and Conditions No. 1. 2. 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.