BIR Ruling No. 544-12

August 30, 2012 BIR RULING NO. 544-12 Sec. 4, RR 5-11; Sec. 2.78.1 (A) (3) (c), RR 2-98, as amended Monde Nissin Corporation 22/F 6750 Tower, Ayala Avenue Makati City, Philippines 1226 Attention: Ms. Corazon Sy Gonzales Personnel & Admin. Manager Gentlemen : This refers to your letter dated April 2, 2012 requesting for the retention of BIR Ruling No. DA-364-03 dated July 23, 2009 n which provides that "even if the meal allowance is not given on occasion of overtime work, it may still be considered as " de minimis " meal allowance not subject to withholding tax on compensation." In reply, we regret to inform you that daily meal allowance which is not granted for overtime work and night/graveyard shift and not exceeding twenty five percent (25%) of the basic minimum wage, is not included in the term "DE MINIMIS" benefit anymore in view of Section 1 (j) and Section 4 of RR No. 5-2011 provides, viz. : Section 1. Section 2.78.1 (A) (3) (c) and (d) of RR 2-98, as last amended by RR 5-2008, is hereby amended as follows: "Sec. 2.78.1 Withholding of Income Tax on Compensation Income . (B) . . . (3) . . . xxx xxx xxx (4) Facilities and privileges of relatively small value xxx xxx xxx The following shall be considered as " de minimis " benefits not subject to income tax as well as withholding tax on compensation income of both managerial and rank and file employees: SEDaAH j) Daily meal allowance for overtime work and night/graveyard shift not exceeding twenty five percent (25%) of the basic minimum wage on a per region basis. All other benefits given by employers which are not included in the above enumeration shall not be considered as " de minimis " benefits, and hence, shall be subject to income tax as well as withholding tax on compensation income. Section 4. Repealing Clause . All existing rules and regulations or parts thereof which are inconsistent with the provisions of these regulations are hereby revoked, repealed or modified accordingly. It is a basic precept of statutory construction that the express mention of one person, thing, act, or consequence excludes all others as expressed in the familiar maxim expressio unius est exclusio alterius . 1 In this regard, all other benefits given by employers which are not included in the Revenue Regulations No. 5-2011 shall not be considered as " de minimis " benefits, and hence, shall be subject to income tax as well as withholding tax on compensation income. In view of the foregoing, we sustain our earlier view in BIR Ruling No. 379-2011 dated October 20, 2011 that your requests for the retention of the BIR Ruling No. DA-364-03 which states that the meal and food benefits granted, although not intended for overtime work, be considered " de minimis " and therefore not subject to withholding tax on compensation cannot be granted for lack of factual and legal basis. Insofar as this Office is concerned, this denial is final. You are advised to request for review of the said ruling by the Secretary of Finance pursuant to Department Order No. 7-02. Very truly yours, (SGD.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue Footnotes 1. PAGCOR vs. BIR [G.R. No. 172087. March 15, 2011.] n Note from the Publisher: Copied verbatim from the official document. "July 23, 2009" should read as "October 13, 2003".