BIR Ruling No. 448-14

October 30, 2014 BIR RULING NO. 448-14 Section 30 (G), of the Tax Code of 1997, as amended; BIR Ruling No. 535-2012; BIR Ruling No. 108-2011; BIR Ruling No. 080-2011; BIR Ruling No. 060-2011; BIR Ruling No. 052-2011 Tany Foundation, Inc. 191 Katipunan Avenue, Brgy. Bayanihan, Proj. 4, Quezon City Attention: Joselito E. Mape President Gentlemen : This refers to your letter dated March 25, 2014, as indorsed by the Regional Director of Revenue Region No. 7, Quezon City, relative to your request for the issuance of a Certificate of Tax Exemption on behalf of TANY FOUNDATION, INC. pursuant to Section 30 (G) of the National Internal Revenue Code (NIRC) of 1997, as amended. It is represented that TANY FOUNDATION, INC.,with BIR Certificate of Registration No. OCN3RC0000518608 and Taxpayer's Identification No. (TIN) 006-606-663-000, is a civic league or organization not organized for profit but operated exclusively for the promotion of social welfare; that it is duly organized and existing under the laws of the Republic of the Philippines, registered with the Securities and Exchange Commission (SEC) under Company Registration No. CN200700858 dated January 22, 2007; and that among the purposes for which it was incorporated are the following: 1) To provide assistance and promote the overall general welfare through charitable, socio-cultural, economic, educational and other benevolent activities especially for the less privileged families/communities and cultural minority groups for the attainment of their physical, moral, spiritual, and educational well-being and to assist, grant and support individuals and entities (social welfare groups/institutions, associations, foundations) that provide similar support and assistance as mentioned in no. 1 hereof; 2) To establish, offer and extend financial aid and/or scholarship grants and other incentives to support the education of but deserving youths, their qualifications to be determined by a committee to be created for the purpose; DIESHT 3) To sponsor, promote, support, encourage and finance educational activities and projects and infrastructure, repairs, reconstruction, development, improvement of buildings, facilities and other structures and provide fixtures and other facilities for the benefit of the institution and its students, faculty, employees and guests; 4) To conduct and provide ways and means to give educational and/or travel grants, seminars, lectures, conferences, meetings and exhibitions calculated to attain desired objectives and to this end, to print, publish and distribute books, pamphlets, papers and other literature necessary for the purpose; 5) To assist victims of calamities (typhoons, floods, fires) by providing them with some of their basic needs; 6) To assist institutions in their fund raising activities to enable them to pursue their goals which are in line with the objective of Tany Foundation, Inc.; 7) To accept and receive assistance, gifts, donations, bequest, legacies, devices or endowments from natural and/or juridical persons, domestic or foreign; 8) To acquire, purchase, own, hold, operate, develop, lease, mortgage, pledge, exchange, sell, transfer or otherwise, in any manner permitted by law, real and personal property of every kind and description or any interest therein as may be necessary or conducive to carry out its purpose; 9) To raise money or funds from time to time without limit as to the amount to meet the financial requirements of the Foundation, to borrow money, make, draw, accept, endorse, guarantee, execute and issue promissory notes, drafts, bills of exchange, warrants, debentures, and other negotiable or non-negotiable instruments and evidences of indebtedness, and to secure the payment thereof and the interest thereon, by mortgage on, pledge, conveyance or assignment in trust of, the whole or any part of the assets of the Foundation, real or personal, mixed including contract rights whether at the time owned or thereafter acquired, and to sell, pledge or otherwise dispose of such securities; CDEaAI 10) To invest, deposit or put in money placements or time deposits in any reputable and/or duly authorized banking institutions or investment houses doing business in the Philippines such money or funds received or collected from donors, contributors, and members to generate earnings in the form of interest income, from which may be drawn expenses or disbursement for supplies, cost of printing or publication and wages/salaries of personnel; and 11) In general, to carry on an activity, to do and to perform all acts and things necessary, suitable or proper for the accomplishment of any of the purpose herein enumerated or which shall at any time appear to be for the best interest and benefit of the Foundation in the furtherance of its objectives, including all powers, authorities and attributes confined by law to any juridical person as principal, factor, agent or otherwise in conjunction with any person, association, entity domestic or foreign and to establish and maintain branch offices or agencies within or outside the territory of the Republic of the Philippines. In support of its request, TANY FOUNDATION, INC. submitted the following documentary requirements: 1) Letter-application for tax exemption; 2) SEC certified true copy of the Foundation's Certificate of Incorporation; 3) SEC certified true copy of the Foundation's Amended Articles of Incorporation which contains the following provisions: a) That the Foundation is non-stock and non-profit; b) No part of its property or income shall inure to the benefit of any member, trustee, or officer, or any private individual, corporation or association; ISaCTE c) No dividends, pecuniary profits or compensation shall ever be declared or paid to any member or trustee; and d) That in case of dissolution, the remaining assets of the Foundation shall be distributed, donated or disposed of in trust to a successor Foundation to be organized by the members of this Foundation or to another accredited NGO organized for the same purpose, or to the Government, or to the best accomplishment of the general purposes for which the dissolved Foundation was organized. 4) SEC certified true copy of the Foundation's Amended By-Laws; 5) Original copy of the Certification under Oath by an Executive Officer of the Foundation as to (I) all previous amendments or changes in the Articles of Incorporation and the By-laws; (II) manner of activities of the Association; and (III) the sources and disposition of income; 6) BIR certified true copy of the Foundation's Certificate of Registration; 7) Original copy of the Certification under Oath by the Treasurer of the Foundation that the Foundation paid Php442,000 for the year 2012 in salaries and wages to its Executive Director for facilitation of the Foundation's program activities; 8) Certification issued by the Revenue District Officer of RDO No. 40, Cubao, Quezon City, that TANY FOUNDATION, INC. has no pending audit/investigation nor claim for refund or issuance of tax credit certificate as of 26th March, 2014; 9) BIR certified true copies of the Foundation's Annual Income Tax Returns and Annual Information Return and Financial Statements for the years 2010-2012; CHIaTc 10) Verification and Certification of Non-forum Shopping; and 11) Original copy of the Statement under Oath by an Executive Officer of the Foundation as to its Modus Operandi w hich includes the following: a. A full description of the past, present, and proposed activities of the Association; b. Narrative description of its anticipated receipts and contemplated expenditures; and c. Revenues which it seeks to be exempted from income tax. In reply, please be informed as follows: Income Tax Section 30 (G) of the 1997 Tax Code, as amended, provides, viz. : "Sec. 30. Exemptions from Tax on Corporations. The following organizations shall not be taxed under this Title in respect to income received by them as such: xxx xxx xxx (G) Civic league or organization not organized for profit but operated exclusively for the promotion of social welfare; ..." The Supreme Court, in the case of Commissioner of Internal Revenue vs. St. Luke's Medical Center, Inc. [G.R. No. 195909 and G.R. No. 195960, September 26, 2012], declared: ". . . [T]o be exempt from taxes, Section 30 (G) of the NIRC requires that the institution be "operated exclusively" for social welfare. However, the last paragraph of Section 30 of the NIRC qualifies the words "organized and operated exclusively" by providing that: Notwithstanding the provisions in the preceding paragraphs, the income of whatever kind and character of the foregoing organizations from any of their properties, real or personal, or from any of their activities conducted for profit regardless of the disposition made of such income, shall be subject to tax imposed under this Code. In short, the last paragraph of Section 30 provides that if a tax exempt charitable institution conducts "any activity for profit, such activity is not tax exempt even as its not-for-profit activities remain tax exempt. This paragraph qualifies the requirements in Section 30 (E) that the "[n]on-stock corporation or association [must be] organized and operated exclusively for ...charitable ...purposes ...."It likewise qualifies the requirement in Section 30 (G) that the civic organization must be "operated exclusively" for the promotion of social welfare." HDATSI In interpreting the term "exclusive" as used in the provision, the Supreme Court, citing the case of Lung Center of the Philippines vs. Quezon City (G.R. No. 144104, June 29, 2004), held: "[e]xclusive" is defined as possessed and enjoyed to the exclusion of others; debarred from participation or enjoyment; and "exclusively" is defined, "in a manner to exclude; as enjoying a privilege exclusively." ...The words "dominant use" or "principal use" cannot be substituted for the words "used exclusively" without doing violence to the Constitution and the Law. Solely is synonymous with exclusively." TANY FOUNDATION, INC. falls within the purview of an organization/association contemplated under the above cited provision of law. Accordingly, it is exempt from the payment of income tax received by it as such organization. However, it 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. (BIR Ruling No. 535-12 dated August 29, 2012) 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 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, as amended. It should be understood that the said exempt corporation/association shall be constituted as a withholding agent for the government if it acts as an employer and its employees receive 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 (RR) No. 2-98, as amended, or if it makes income payments to individuals or corporations subject to the withholding tax pursuant to Section 57 of the Tax Code of 1997, also as implemented by Revenue Regulations No. 2-98, as amended. (BIR Ruling No. 080-11 dated March 15, 2011) IDTSEH Value-Added Tax Moreover, the tax exemption granted to it as a non-stock, non-profit corporation under Section 30 of the Tax Code of 1997 covers only income taxes for which it is directly liable. Section 105 of the Tax Code of 1997 provides that any person who, in the course of trade or business, sells, barters, exchanges, leases goods or properties, renders services, and any person who imports goods shall be subject to the value-added tax (VAT) imposed in Sections 106 to 108 of the same Code. The phrase "in the course of trade or business" means the regular conduct or pursuit of a commercial or an economic activity, including transactions incidental thereto, by any person regardless of whether or not the person engaged therein is a non-stock, non-profit private organization (irrespective of the disposition of its net income and whether or not it sells exclusively to members or their guests),or government entity. Accordingly, if TANY FOUNDATION, INC. is engaged in the sale of goods or services in the course of a business pursuit, including transactions incidental thereto, in general, it shall be liable for VAT. (BIR Ruling No. 060-11 dated March 4, 2011) Notwithstanding that it is a non-stock, non-profit corporation, its purchase of goods or properties or services and importation of goods shall nevertheless be subject to the 12% VAT pursuant to Sections 106 to 108 of the said Code. (BIR Ruling No. 052-11 dated February 25, 2011) It should be noted that VAT is an indirect tax payable by the seller and not by the purchaser of goods. However, being an indirect tax, it can be shifted or passed on to the buyer/purchaser, transferee or lessee of the goods, properties or services. Once shifted to the buyer/customer as an addition to the cost of goods or services sold, it is no longer a tax but an additional cost which the buyer/customer has to pay in order to obtain the goods or services. Thus, the shifting of the VAT to it does not make it the person directly liable and therefore, it cannot invoke its tax exemption privilege under Section 30 of the Tax Code of 1997 to avoid the passing on or shifting of the VAT. DCcHIS Revenue from contributions and donations, not being derived from sale of services or sale of goods made in the course of business but rather in connection with its non-stock, non-profit activities, is exempt from the 12% VAT. Donor's Tax In as much as TANY FOUNDATION, INC. is a social welfare organization, donations to it are exempt from the payment of donor's tax pursuant to Section 101 (A) (3) of the Tax Code of 1997, as amended, subject to the condition that not more than thirty percent (30%) of said gift shall be used for administration purposes. Deductibility of Donation Section 3 of RR 13-98 provides: SEC. 3. Donations to Accredited Non-stock, Non-profit Corporations/NGOs. Donations to accredited non-stock, non-profit corporations/NGOs shall be entitled to the following benefits: (1) Limited Deductibility. Donations, contributions or gifts actually paid or made within the taxable year to accredited non-stock, non-profit corporations shall be allowed limited deductibility in an amount not in excess of ten percent (10%) for an individual donor, and five percent (5%) for a corporate donor, of the donor's income derived from trade, business or profession as computed without the benefit of this deduction. (2) Full Deductibility. Donations, contributions or gifts actually paid or made within the taxable year to accredited NGOs shall be allowed full deductibility, subject to the following conditions: (i) The accredited NGO shall make utilization directly for the active conduct of the activities constituting the purpose or function for which it is organized and operated, not later than the fifteenth (15th) day of the third month after the close of the accredited NGOs taxable year in which contributions are received, unless an extended period is granted by the Secretary of Finance, upon recommendation of the Commissioner. IEHaSc For this purpose, the term "utilization" shall have the meaning as defined under Sec. 1 (c) of these Regulations. (ii) The level of administrative expenses of the accredited NGO, shall, on an annual basis, not exceed thirty percent (30%) of the total expenses for the taxable year. (iii) In the event of dissolution, the assets of the accredited NGO, would be distributed to another accredited NGO organized for similar purpose or purposes, or to the State for public purpose, or purposes, or would be distributed by a competent court of justice to another accredited NGO to be used in such manner as in the judgment of said court shall best accomplish the general purpose for which the dissolved organization was organized. (iv) The amount of any charitable contribution of property other than money shall be based on the acquisition cost of said property. (v) All the members of the Board of Trustees of the non-stock, non-profit corporation, organization or NGO do not receive compensation or remuneration for their service to the afore-mentioned organization. Furthermore, Section 1 (a) of Revenue Regulations No. 13-98 provides that: a) "Non-stock, non-profit corporation or organization" shall refer to a corporation or association/organization referred to under Section 30 (E) and (G) of the Tax Code created or organized under Philippine laws exclusively for one or more of the following purposes: HcaATE 1. religious; 2. charitable; 3. scientific; 4. athletic; 5. cultural; 6. rehabilitation of veterans; and 7. social welfare no part of the net income or asset of which shall belong to or inure to the benefit of any member, organizer, officer or any specific person. b) "Non-government Organization (NGO)" shall refer to a non-stock, non-profit domestic corporation or organization as defined under Section 34 (H) (2) (c) of the Tax Code organized and operated exclusively for scientific, research, educational, character-building and youth and sports development, health, social welfare, cultural or charitable purposes, or a combination thereof, no part of the net income of which inures to the benefit of any private individual. Foregoing considered, donors can avail of the full deductibility only for donations, contributions or gifts actually paid or made within the taxable year to accredited NGOs. Accordingly, for purposes of full deductibility from the taxable business income of its donor, TANY FOUNDATION, INC. must first be accredited with the Philippine Council for NGO Certification, Inc. (PCNC) which has been duly designated by the Secretary of Finance as the Accrediting Entity pursuant to Memorandum of Agreement dated January 29, 1998 executed by and between the Secretary of Finance and PCNC's Interim Chairman. TCASIH For further inquiries on the accreditation and certification process, please visit PCNC at 6/F, SCC Building, CFA-MA Compound, 4427 Interior Old Sta. Mesa, 1016 Manila or call their office at 715-9594, 715-2756, 782-1568 and 715-2783 (telefax).You may also visit their website: http://www.pcnc.com.ph or email them at [emailprotected]. Moreover, TANY FOUNDATION, INC. is required to file on or before the fifteenth (15th) day of the fourth (4th) 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. (BIR Ruling No. 108-11 dated April 7, 2011) Under Section 235 of the Tax Code of 1997, as amended, 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 has been granted tax exemptions or tax incentives, and its tax liabilities, if any. 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 Foundation is registered. [Revenue Memorandum Circular (RMC) No. 76-2003] It is requested that a copy of this Letter of Exemption be attached to the Annual Information Return. Please note that this tax exemption ruling shall be valid for a period of three (3) years from the date of issue, unless sooner revoked or cancelled. The Tax Exemption Ruling may be renewed upon filing of a subsequent Application for Tax Exemption/Revalidation, under the same requirements and procedures provided under Revenue Memorandum Order (RMO) No. 20-2013 dated July 22, 2013. Failure to renew the Tax Exemption Ruling shall be deemed a revocation thereof upon the expiration of the three (3)-year period .The new Tax Exemption Ruling shall be valid for another period of three (3) years, unless sooner revoked or cancelled. IcSHTA 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