Citytrust Banking Corp. v. Commissioner of Internal Revenue

[C.T.A. CASE NO. 5519. May 10, 2000.] CITYTRUST BANKING CORPORATION , petitioner , vs . COMMISSIONER OF INTERNAL REVENUE , respondent . D E C I S I O N Before Us for consideration is a Petition for Review filed by the Petitioner on April 18, 1997 seeking for a refund or the issuance of a tax credit certificate in the amount of P4,576,429.72 allegedly representing overpaid gross receipts taxes for 1995. As represented, Petitioner is a domestic banking corporation, duly registered with the Securities and Exchange Commission, with principal office located at 379 Sen. Gil J. Puyat Ave., Makati City. For the four quarters of 1995, herein Petitioner filed with Respondent its quarterly percentage tax returns and paid the corresponding gross receipts tax (GRT) -for each of the said quarters, hereunder summarized as follows: PERIOD COVERED GRT DATE PAID EXH. 1st Qtr. (Jan. to March) P24,421,495.70 April 20, 1995 A 2nd Qtr. (April to June) 27,619,936.95 July 20, 1995 B 3rd Qtr. (July to Sept.) 28,671,506.35 October 20, 1995 C 4th Qtr. (Oct. to Dec.) 28,203,675.42 January 22, 1996 D Total P108,916,614.42 ============= From the total gross receipts tax of P108,916,614.42, Petitioner allege that it erroneously included in the tax base, gross receipts derived from passive income which were already subjected to final withholding tax in the amount of P98,547,311.10. Thus, Petitioner further allege that it has a refundable amount of P4,576,429.72, the breakdown of which are as follows: 5% 3% 1% 0% TOTAL Income per GRT return 1,827,875,633.79 521,535,791.51 187,675,898.05 122,654,688.82 2,659,742,012.17 Less FWT on Income subject to 20% 86,726,146.68 6,183,295.77 5,462,351.18 175,517.48 98,547,311.10 Net Taxable Base 1,741,149,487.11 515,352,495.74 182,213,546.87 122,479,171.34 2,561,194,701.07 Tax Rate 5% 3% 1% 0% Should be Tax Due 87,057,474.36 15,460,574.87 1,822,135.47 0.00 104,340,184.70 Less: Tax due per return 91,393,781.70 15,646,073.74 1,876,758.98 0.00 108,916,614.42 Over remittance (4.336,307.34) (185,498.87) (54,623.51) 0.00 (4,576,429.72) ============= ============= ============= ============= ============ After taking into consideration the Decision of this Court in the case of Asian Bank Corporation vs. Commissioner of Internal Revenue, CTA Case No. 4720, January 30, 1996 , which ruled that the 20% final withholding tax on interest income should not form part of the taxable gross receipts, Petitioner filed with the Respondent on April 17, 1997 an application for a tax refund/tax credit of its alleged overpaid GRT for the taxable year 1995 in the total amount of P4,576,429.72 (Exh. F). The aforesaid claim for refund was not acted upon by Respondent. Thus, a day after, or on April 18, 1997, Petitioner filed with this Court the instant Petition for Review. Petitioner reiterate its proposition that the 20% final withholding tax on the interest and other income remitted to the government were erroneously included in its taxable gross receipts, thus, it stressed that on the strength of the aforementioned ruling of this Court in the Asian Bank case, supra it has actually overpaid the amount legally due from it, insofar as its gross receipts' tax obligations are concerned, hence, a refund is in order. Respondent, on the other hand, by way of Special and Affirmative Defenses, alleges that: (8) Petitioner's claim for refund is still undergoing administrative routinary investigation/examination by Respondent's Bureau considering that the claim for refund with the Bureau was filed two days earlier on the date the instant case was filed with this Honorable Court; (9) The total amount of P4,576,429.72 claimed by Petitioner as alleged overpaid GRT for the year 1994 is not properly documented; (10) The alleged refundable GRT was collected and paid pursuant to law and pertinent BIR implementing rules and regulations, hence, the same is not refundable; (11) Petitioner's allegations that it excessively paid its GRT during the year under review does not ipso facto warrant the refund. Petitioner must prove that the exclusions claimed by it from its gross receipts must be an allowable exclusion under the Tax Code and its pertinent implementing rules and regulations; (12) Claims for refund are construed in strictissimi juris against the taxpayer, as it partakes the nature of an exemption from tax and it is incumbent upon the Petitioner to prove that it is entitled thereto under the law. Failure on the part of the Petitioner to prove the same is fatal to its claim for refund. In order to support its claim for refund, Petitioner presented the following evidence, to wit: Exhibits Description A, B, C, D Quarterly percentage tax returns for taxable year 1995 E and E-1 Computation of GRT overpayment for 1995 F Letter-claim for refund with the BIR G and G-1 Certification of final taxes withheld from Central Bank to prove that petitioner's interest income on treasury bills was subjected to the 20% final withholding H, H-1 to H-8 Certification issued by the SGV and Co. stating the agreed upon procedures with the Petitioner and the outcome of the audit I-1 to I-14 Financial Statements for taxable year 1995 J 1995 Annual Income Tax Return The Court directed both parties to submit their respective memorandum after which, the case was submitted for decision. The issues posed for adjudication in this case are: (1) Whether or not Petitioner is entitled to the refund of gross receipts tax corresponding to the 20% final withholding tax on its passive income; and (2) Whether or not Petitioner has proven its claim by sufficient and substantial evidence. As regards the first issue, this Court has already ruled in numerous cases involving claims for refund of overpaid gross receipts tax that "the 20% final withholding tax on its passive income should no longer form part of the taxable gross receipts for purposes of computing the gross receipts tax." As aptly cited by Petitioner in Asian Bank Corporation vs. Commissioner of Internal Revenue (CTA Case No. 4720, January 30, 1996) , this Court ruled: " We agree with the petitioner that the 20% final withholding tax on its interest income should not form part of its taxable gross receipts . xxx xxx xxx This conclusion is in accord with the interpretation of the Supreme Court in the case entitled Collector of Internal Revenue vs. Manila Jockey Club, 108 Phil. 821, as quoted by this Court in disposing of a similar issue in the case entitled Compaia Maritima vs. Acting Commissioner of Internal Revenue, CTA Case No. 1426 dated November 14, 1996, thus: In the second place, the highest tribunal of the land interpreted the term: "gross receipts" to mean all receipts of a taxpayer excluding those which have been especially earmarked by law or regulation for the government or some person other than the taxpayer. Thus, it was held: ". . . The Government could not have meant to tax as gross receipt of the Manila Jockey Club the % which it directs same Club to turn over to the Board of Races. The latter being a Government institution, there would be double taxation, which should be avoided unless the statute admits of no other interpretation. In the same manner, the Government could not have intended to consider as gross receipt the portion of the funds which it directed the Club to give, or know the Club would give, to winning horses and Jockeys admitted 5%. It is true that the law says that out of the total wager funds 12 shall be set aside as the 'commission' of the track owners but the law itself takes official notice, and virtually approves or directs payment of the portion that goes to owners of horses as prized and bonuses of jockeys, which portion is admittedly 5% out of the 12% commission. As it did not at that time contemplate the application of 'gross receipts' revenue principle, the law in making a distribution of the total wager funds, took no trouble of separating one item from the other; and for convenience, grouped three items under one common denomination. prcd "Needless to say, gross receipts of the proprietor of the amusement place should not include any money which although delivered to the amusement place has been especially earmarked by law or regulation for some person other than the proprietor." (The Commissioner of Internal Revenue vs. Manila Jockey Club, Inc. G.R. Nos. L-13890 and L-13887, June 30, 1960) It is to be noted that, under Section 260 of the Tax Code, a race-track; is subject to an amusement tax of 20% of its gross receipts and the term 'gross receipts' embraces all the receipts of the proprietor, lessee, or operator of the amusement place." Notwithstanding the broad and all-embracing definition of the term "gross receipts" found in our amusement tax law, our Supreme Court did not adopt a literal interpretation of the said term in the case of the Manila Jockey Club, Inc., supra ." Recently the Court of Appeals affirmed the wisdom of this Court's ruling in a case involving a similar cause of action, thus: Accordingly the 20% final tax withheld against the Respondent's passive income was already remitted to the Bureau of Internal Revenue, for the corresponding year that the same was actually withheld and considered final withholding taxes under Section 50 of the same Code. Indubitably, to include the same to Respondent's (Citytrust) gross receipts for the year 1994 would be to tax twice the passive income derived by the Respondent for the said year, which would constitute double taxation anathema to our taxation laws." ( Commissioner of Internal Revenue vs . Citytrust Philippines, CA G . R . SP No . 52707, August 17, 1999 ). Having settled the legal issue in the affirmative, what remains to be resolved are factual matters, more particularly, as to whether or not Petitioner has established by clear and substantial evidence its claim for refund. LexLib Section 230 of the Tax Code, as amended, provides that a claim for refund, both with the Bureau of Internal Revenue and with this Court, must be filed within two years from the date of payment of the tax. In counting for the two-year prescriptive period, the filing of the quarterly percentage tax return should be considered as the date of payment of the tax" ( Solid Bank Corporation vs. Commissioner of Internal Revenue, CTA Case No. 5408, April 14, 1999 ; and Citytrust Investment Philippines, Inc. vs. Commissioner of Internal Revenue , CTA Case No. 5403, April 19, 1999 ). Applying the above ruling in the case at bar reveals that Petitioner was able to file its claim for refund with the Bureau of Internal Revenue on April 17, 1997 and the Petition for Review with this Court on April 18, 1997 both within the two-year reglementary period, considering that the 1995 first quarterly percentage tax return was filed on April 20, 1995. Equally important in the granting of the instant case is Petitioner's compliance with the following requisites: 1. that it paid the gross receipts tax; 2. that it erroneously overpaid its gross receipts tax by including the 20% final withholding tax on its passive income as part of the gross receipts declared in the quarterly percentage tax returns for the year 1995; and 3. that the withholding agent certifies that there is 20% final withholding tax on such passive income. ( Bank of the Philippine Islands vs. Commissioner of Internal Revenue, CTA Case No. 5458, February 15, 1999 ; and BPI Capital vs. Commissioner of Internal Revenue, CTA Case No. 5457, March 1, 1999 ; cited in Solid Bank Corporation vs. Commissioner of Internal Revenue, CTA Case No. 5408, April 14, 1999 .) A meticulous examination of all the evidence on record reveals that Petitioner was able to show that it paid gross receipts tax for the year 1995 as evidenced by the machine validations appearing on the lower portion of its quarterly percentage tax returns (Exhs. A, B, C, and D, inclusive of sub-markings). The evidence also established that the alleged 20% final withholding taxes on interest income on passive investments were included in the gross receipts reflected in Petitioner's quarterly percentage tax returns. This was attested to by Mr. Renato Galve, the commissioned independent CPA by the Court (TSN, August 17, 1998, p.14). However, from among the passive income which was allegedly subjected to final tax, only interest income from treasury bills were supported by certifications of withholding and remittance. The rest of the passive investments which is composed of deposits with banks, interbank call loan receivables, trading gain, and from other sources have no such certifications. The certification of withholding and remittance of final tax is important for the Court to verify, if indeed the final tax on passive income was paid and remitted to the Bureau of Internal Revenue. This is the rationale behind the Asian Bank case, CTA Case No. 4720, quoted earlier. It would appear then that Petitioner is only entitled to a partial refund of overpaid gross receipts tax pertaining to the 20% final tax on interest income of treasury bills. However, even after a further painstaking scrutiny of the documents presented as evidence, the Court cannot compute with accuracy how much refund can be granted to Petitioner. Nowhere in the evidence on record can We verify the exact amount of final tax on treasury bills. We cannot solely rely on the certification issued by Bangko Sentral ng Pilipinas because the amount of final tax stated therein is huge and in its original value. We would like to emphasize that treasury bills are bearer securities and can be transferred by mere physical delivery. Thus, whenever Petitioner sells some of its treasury bills to the secondary market, the withholding tax originally paid by it is also shifted (TSN, October 6, 1997, pp. 16 to 19). The only figure appearing in the record of the case is the amount of P76,417,833.00 representing trading accounts securities (TAS, for brevity) and government securities (GS, for brevity) (Exh. H-8). But again, the Court cannot base the refund on this amount. It is to be pointed out that TAS and GS are not all treasury bills. TAS may include commercial papers while GS may include treasury notes (TSN, October 6, 1997, pp. 7 and 8). In sum, We find the procedures supposedly agreed upon by the Petitioner and the independent auditor to be insufficient to come-up with the desired result in ascertaining the correctness of Petitioner's claim for refund. The procedures merely limited the examination on the verification of the amounts of passive income and the provision for final tax. It failed to scrutinize the accuracy of the composition of the passive income accounts and the corresponding computation for gross receipts tax and the supporting documents for final taxes. To the Court's mind, a more detailed and better procedure, such as tracing, test computation, and analysis of individual transaction pertaining to the passive income accounts should have been conducted and by checking, if the final taxes on these passive income are duly supported. Further, Petitioner's failure to present in evidence vital documents such as trading orders, outright purchase confirmation, outright sale confirmation and accrual ledger proved fatal to its claim for refund. It is worth stressing that under CTA Circular 1-95, as amended, the "voluminous" documents supporting the claim for refund, should have been pre-marked and submitted to the Court after the independent auditor shall have examined and compared them with the originals. Without these pre-marked documents, the Court cannot verify the correctness of the independent auditor s conclusion. LexLib In fact, We have already denied a petition with a similar cause of action, wherein We ruled: "In earning its income, Petitioner is of course expected to have in its possession documents and computerized records of each and every transaction it has entered into from which the aggregate amount of gross receipts as declared in the quarterly returns were based. In this regard, Petitioner should have endeavored to prove that the alleged receipts of interest and passive income were the ones duly reported as such in each of the quarterly percentage tax returns. Inasmuch as the gross receipts reported in said return pertain to a conglomeration of various income subjected to final and creditable withholding taxes, there was therefore a need for the Petitioner to show that the particular portion of reported passive income tallies with its proof of individual transactions ( Bank of the Philippine Islands vs. Commissioner of Internal Revenue, CTA Case No. 5458, February 15, 1999 ). Petitioner's failure to present the pertinent documents and individual transactions which would support the certification of the independent auditor as well as the schedule contained therein proved fatal to its claim for refund. Well-settled is the rule in this jurisdiction that a claim for refund is in the nature of a claim for exemption, hence should be construed in strictissimi juris against the taxpayer ( Commissioner of Internal Revenue vs. Tokyo Shipping Co., Ltd ., 244 SCRA 332 ). WHEREFORE, in the light of the foregoing, the instant Petition for Review is hereby DENIED due to insufficiency of evidence. SO ORDERED. (SGD.) RAMON O. DE VEYRA Associate Judge I CONCUR: (SGD.) ERNESTO D. ACOSTA Presiding Judge Separate Opinions The majority opinion denied the claim for refund due to insufficiency of evidence but upheld the ruling that the final withholding tax on certain passive income of a bank should be excluded from its gross receipts for purposes of computing the gross receipts tax. I humbly disagree with the aforementioned ruling primarily because this is based on this Court's decision in the case of Asian Bank Corporation vs . Commissioner of Internal Revenue, CTA Case No . 4720 promulgated on January 30, 1996 . The decision in the Asian Bank case which established a precedent for cases having a similar issue, has as its legal basis Section 4(e) of Revenue Regulations No. 12-80 dated November 7, 1980 which states, thus. "Section 4. . . . (e). Gross receipts tax on banks, non-bank financial intermediaries, financing companies, and other non-bank financial intermediaries not performing quasi-banking activities . The rates of taxes to be imposed on the gross receipts of such financial institutions shall be based on all items of income actually received. Mere accrual shall not be considered, but once payment is received on such accrual or in cases of overpayment then the amount actually received shall be included in the tax base of such financial institutions, as provided hereunder." (Emphasis supplied) cdll Note that in the Asian Bank case, said bank was being assessed for deficiency gross receipts tax of 5% for taxable year 1986 which at that time the aforequoted Section 4(e) of Revenue Regulations No. 12-80 had already been amended, superseded and omitted in the amendatory Revenue Regulations No. 17-84 dated October 12, 1984. In other words, the citation of Section 4(e) of Revenue Regulations No. 12-80 by Petitioner's counsel was erroneous in the sense that it misled this Court to adopt Petitioner's legal basis. The legal basis that should have been cited is Section 8(c) of Revenue Regulations 12-80 which became Section 7(c) of Revenue Regulations No. 17-84 which provides, thus: "Section 8. . . . (c) If the recipient of the above-mentioned items of income are financial institutions, the same shall be included as part of the tax base upon which the gross receipts tax is imposed." Petitioner's counsel purposely did not cite said section because certainly it won't be able to get a refund or tax credit for the alleged overpaid gross receipts tax for obvious reasons. Section 4(e) of Revenue Regulations No. 12-80, as worded, is not a computation which is determinative of the amount to be used as basis of the 5% gross receipts tax. Rather, said Section is reflective of the method of accounting being adopted by the taxpayer, such as the cash receipts and disbursement method or the accrual method of accounting. Said methods of accounting comprise a set of rules for determining when and how to report income and deduction ( Consolidated Mines, Inc . vs . Court of Tax Appeals, L-18843, August 29, 1974 ). Thus, under the cash receipts and disbursements method, income earned by the taxpayer is not included in gross income until received and expenses are not deducted until paid within the taxable year. And in the case of the accrual method, income is included in gross income when earned, whether received or not, and expenses are allowed as deductions when incurred although not paid (BIR Ruling No. 35-98, April 13, 1998). The 5% gross receipts tax under Section 120 of the Tax Code is collectible from all finance companies doing business in the Philippines from interests, discounts and all other items treated as gross income under the Tax Code. Accordingly, its income derived from investing the excess funds in short-term market placements through commercial banks constitute income, hence, subject to the 5% gross receipts tax under said section. The fact that it has been subjected to the 20% final withholding tax under Section 50(a) is immaterial. Besides, the withholding tax is imposed under Title II of the Tax Code while the finance tax is provided under Title V thereof (BIR Ruling No. 223, November 2, 1989). The fact that the same income is subjected to two (2) different kinds of taxes would not make such payments a case of double taxation. LibLex By quoting a superseded revenue regulation, Petitioner in the Asian Bank case, led this Court to believe that indeed the basis of the gross receipts tax is total gross receipts exclusive of the 20% final withholding tax deducted and withheld under Section 50(a) of the Tax Code. Section 7(c) of Revenue Regulations No. 17-84 clearly and categorically provides that the basis of such tax is inclusive of the final withholding tax. The High Court's decision in the case of Commissioner of Internal Revenue vs . The Manila Jockey Club, Inc ., 108 Phils. 821, June 30, 1960 , which was reaffirmed by the said Court in the case of Visayan-Cebu Terminal Co ., Inc . vs . Commissioner of Internal Revenue, 13 SCRA 357, February 27, 1965 cannot be considered as precedent cases, hence, inapplicable to the two cases decided by this Honorable Court in the cases of Compaia Maritima vs . Acting Commissioner of Internal Revenue, CTA Case No . 1426 dated November 14, 1966 and Asian Bank Corporation vs . Commissioner of Internal Revenue, CTA Case No . 4720 dated January 30, 1996 , for the following reasons: In the Manila Jockey Club, Inc. case, the Club was authorized to operate horse races in which betting was made through the sale of tickets to the public. The total amount of bets called "wager fund" were distributed pursuant to Executive Order No. 320 and Republic Act No. 309, as follows: 87% as dividends to holders of winning tickets 12 as "commissions" of the Manila Jockey Club, of which % was assigned to the Board on Races and 5% was distributed as prizes for owners of winning horses and authorized bonus for jockeys. According to the above-mentioned distribution of the "wager fund", the then Collector of Internal Revenue assessed the Club on the whole amount of its "commission" of 12. But since the Club had already paid the amusement tax based on its 7% share of the "commission", the amount assessable pertains only to the 5% for the period from November 1946 to October 1950. On various instances, the Club protested the proposed assessments and was sustained by the opinions of the Secretary of Justice rendered on three different occasions (Opinion No. 345, series of 1941; Opinion No. 249, series of 1952 and Opinion No. 340, series of 1955). Notwithstanding the opinions of the Secretary of Justice to the effect that the amount corresponding to the 5% was held only by the Club in trust for the owners of winning horses and authorized bonuses of jockeys, the then Collector of Internal Revenue demanded payment of amusement taxes for the period November 1946 to October 1950. Said demand letter was timely appealed to the Court of Appeals wherein a unanimous judgment was obtained reversing the Collector's stand on the matter. In the High Court, the position of the Secretary of Justice was sustained thereby upholding the Court of Tax Appeals' decision. Accordingly, gross receipts of the proprietor of the amusement place should not include any money which, although delivered to the amusement place was "especially earmarked" by law or legal rule and regulations for some persons other than the proprietor. Undeniably, they are money received by the racing club but they are moneys earmarked by law or regulations for winning horse owners and jockeys and never for a minute become the property of the race track. The same is true in the case of the % which the law directs the club to deliver to the Board on Races. The High Court therefore agrees with the stand of the Court of Tax Appeals that such funds representing 5% of the 12% "commissions" of the race track do not form part of the gross receipts, hence not subject to the amusement tax of 20%. The above-mentioned decision of the High Court was also applied in the case of Visayan Cebu Terminal Co ., Inc . vs . Commissioner of Internal Revenue, 13 SCRA 357, Nos . L-19530 and L-19444, February 27, 1965 . The legal issue involved in this case is the interpretation of the management contract entered into by and between the Bureau of Customs and Visayan Cebu Terminal Co., Inc. whereby the latter as contractor was appointed the sole manager of the Arrastre Service at the Port of Cebu City. In the said Management Contract, it was further agreed and understood that in consideration of the rights and privileges granted the Contractor for the management of the Arrastre Service, the Bureau of Customs shall receive twenty eight (28%) percent of the total monthly gross income derived from whatever source in connection with the operations of the Arrastre Service, payable within ten (10) days of the succeeding month. The main legal issue involved in this case is whether or not the gross receipts corresponding to the 28% of the total gross income of the Service Contractor delivered to the Bureau of Customs within ten (10) days of the following month should form part of the gross receipts subject to 3% contractor's tax under Section 191 of the Tax Code. The Court of Tax Appeals ruled in favor of the petitioner, holding the view that the said 28% payment by the Arrastre Contractor based on its monthly gross income should not form part of the gross receipts subject to 3% contractors tax and that paragraph 23 of the said Management Contract can legally be construed as a " regulation ". As the learned trial court has aptly observed: ". . . the government could not have intended to consider as gross receipts the 28% that went to one of its institutions, the Bureau of Customs, and thereby collect percentage tax on it from petitioner. To hold petitioner liable for the payment of percentage tax is unquestionably unjust and not contemplated by Section 191 of the Tax Code." All the above-mentioned decisions of the High Court made specific reference to gross receipts which are especially " earmarked by law or legal rule or regulation " as not forming part of the taxable gross receipts for purposes of the gross receipts tax under the Tax Code. For this purpose, it is pertinent to define the word "earmark" as a mark put upon a thing to distinguish it from another. Originally and literally, a mark upon the ear, a mode of marking sheep and other animals. Property is said to be earmarked when it can be identified or distinguished from other property of the same nature. To set apart from others (Black's Law Dictionary, 6th Edition, p. 508). In the case of the Manila Jockey Club, Inc. Executive Order No. 320 and Republic Act No. 309 made the specific "earmarking" for distribution of the total wager fund to different persons other than the proprietor. The same is true in the case of Visayan Cebu Terminal Co., Inc. where the specific earmarking of the 28% of the total monthly gross income to be delivered to the Bureau of Customs by the Contractor was provided in paragraph 23 of the Management Contract. Such specific earmarking of the twenty percent (20%) final income tax as not includible in the gross receipts for purposes of the gross receipts tax was not provided by any law or legal rule or regulation, hence the non-applicability of the above-cited High Court decisions to the Asian Bank Corporation case. This legal observation is also in point in the case of Compaia Maritima case where the non-inclusion of the 10% reserve from the total cash collection to avoid claim for refund on freight and passengers tickets not taken is not provided by any law or legal rule or regulation. In the Asian Bank Corporation case, petitioner bank alleges that subjecting the gross receipts to the 20% final withholding income tax and later to the 5% gross receipts tax is not only oppressive and obnoxious but even a confiscatory form of double taxation. Double taxation. has been defined "as the taxing of the same item or piece of property twice to the same person, or taxing it as the property of one person and again as the property of another, but this does not include the imposition of different taxes concurrently on the same property or income (e.g. federal and state income taxes), nor the taxation of the same piece of property to different persons when they hold different interests in it or when it represents different values in their hands, as when both the mortgagor and mortgagee of property are taxed in respect to their interests in it, or when a tax is laid upon the profits of the corporation and also upon the dividends paid to its stockholders" (Black's Law Dictionary, 6th Edition, p. 491). This acceptable form of double taxation is reflected in BIR Ruling No. 223 dated November 2, 1989, thus: "The 5% gross receipts tax under Section 120 of the Tax Code is collectible on all finance companies doing business in the Philippines from interests, discounts, and all other items treated as gross income under the Tax Code. Accordingly, your income derived from investing the excess funds in short-term market placements through commercial banks constitutes income hence, subject to the 5% gross receipts tax under said Section. The fact that it has been subjected to the 20% final withholding income tax under Section 50(a) is immaterial. Besides, the withholding tax is imposed under Title II of the Tax Code while the finance tax is provided under Title V thereof." (BIR Ruling No. 223, November 2, 1989) For as long as the basis for the claim for refund or tax credit certificate is based on the non-inclusion of the amount representing the final withholding income tax under Section 50(a) as part of the gross income subject to gross receipts tax, this dissenting opinion will stand. For purposes of the amusement tax under Section 260 of the Tax Code, the term 'gross receipts' embraces 'all the receipts' of the proprietor, lessee, or operator of the amusement place. The words all the receipts' refer to the total amount of cash received which becomes part of the funds of the taxpayer and does not include any money which has been specially earmarked by any law or legal rule or regulation for some other person other than the proprietor, lessee or operator of the amusement place. Receipts means actually received ( Philippine Long Distance Telephone Co . vs . Collector of Internal Revenue, G . R . No . L-3222, January 21, 1952 ) for itself and not for others, for otherwise they would not be receipts ( Manila Jockey Club, Inc . vs . Collector of Internal Revenue, CTA Case No . 205, April 15, 1958 ; Jai Alai Corporation of the Philippines vs . Araneta, CTA Case No . 108, July 31, 1956 [ Annotated, NIRC by Commissioner Jose Araas, 1988 Edition, p . 687 ). WHEREFORE, in view of the foregoing, I hereby register my dissent to the majority opinion and vote for the denial of the claim for refund for lack of legal basis. (SGD.) AMANCIO Q. SAGA Associate Judge