Equitable Banking Corp. v. Commissioner of Internal Revenue

[C.T.A. CASE NO. 5823. September 8, 2000.] EQUITABLE BANKING CORPORATION , petitioner , vs . COMMISSIONER OF INTERNAL REVENUE , respondent . D E C I S I O N This is a Petition for Review which seeks for the refund or issuance of a tax credit certificate in the amount of P2,266,391.36 representing overpaid gross receipts tax for the quarter ended March 31,1997. The facts as adduced from the "Joint Stipulation of Facts and Issues" entered into by the parties on July 26, 1999 (pages 36 to 37, CTA records), are as follows: 1. That Petitioner is a banking institution duly organized and existing under the laws of the Philippines with principle office at 262 Juan Luna Street, Binondo, Manila; 2. That in C.T.A. Case no. 4720 entitled Asian Bank Corporation vs. Commissioner of Internal Revenue, the Honorable Court of Tax Appeals ruled that the twenty percent (20%) final withholding tax on a bank's passive income should not form part of the bank's taxable gross receipts for the purpose of computing the bank's gross receipts tax. 3. That the decision in Asian Bank Corporation vs. Commissioner of Internal Revenue under C.T.A. Case No. 4720 was appealed to the Court of Appeals; 4. That on March 25,1999, on the strength of said decision, EBC through a letter of even date (Annexes "C" and "C-1" of Petition) requested of the Respondent through the Revenue District Office No. 30, Revenue Region No. 6, Binondo, Manila (the office having area jurisdiction over the Petitioner) the refund or issuance of a tax credit certificate for the March 31,1997 Quarter in the amount of PHILIPPINE PESOS: TWO MILLION TWO HUNDRED SIXTY SIX THOUSAND THREE HUNDRED NINETY ONE PESOS and 36/100 (P2,266,391.36); 5. That the Petition for tax refund was filed within the two-year prescriptive period as the Petitioner's GRT tax for the quarter ended March 31, 1997 was paid on April 21,1997 and the present petition was filed on April 21,1999; 6. That the claim for refund is pending administrative investigation; 7. That the Petitioner and the authorized agent bank is one and the same person. Records of the case show that on April 21,1997, Petitioner seasonably filed with the Bureau of Internal Revenue (BIR) its various quarterly percentage tax returns, covering those of its Head Office and branches, and paid the BIR a total amount a total amount of P57,804,954.75 as gross receipts tax. Of the said amount, the Gross Receipts Tax (GRT) paid by EBC Head Office was P32,334,361.88 as shown by the Transmittal Sheet of Quarterly Withholding Tax Returns for the quarter ended March 31, 1997 (Exh. A-1). The GRT was computed based on the accumulated total gross receipts of P769,902,611.00 (Exh. C-3). On the strength of the ruling of this Court in the case of Asian Bank Corporation vs. CIR, CTA Case No. 4720 dated January 30, 1996, where we held that the 20% final withholding tax on a bank as financial institution's passive income should not form part of its gross receipts tax base, Petitioner filed with the BIR on March 25, 1999 an administrative claim for refund or issuance of a tax credit certificate for, among other sums, P2,266,391.36 corresponding to the difference between the Gross Receipts Tax paid of P32,334,361.88 pertaining to EBC Head Office and the Adjusted Gross Receipts Tax in the amount of P30.067.970.52. computed as follows: Gross Receipts Subjected to Tax P769,902,611.98 Less: 20% Portion of Tax Paid Income (Annex Bl of 2) 5,037,709.09 Investment Income subject to 20% final tax booked at gross (Annex B2 of 2) 40,290,118.10 Adjusted Gross Receipts Tax Base P724,574,784.79 Computation of Adjusted Gross Receipt Tax: Gross Receipts Tax Due 0% P104,229,864.45 P0.00 1% 9,919,192.26 99,191.92 3% 27,625,390.10 828,761.70 5% 582,800,337.98 29,140,016.90 P724,574,784.79 P30,067,970.52 Gross Receipts Tax Paid P32,334,361.88 Adjusted Gross Receipts Tax 30,067,970.52 Tax Refund P2,266,391.36 ========== Petitioner alleged that in arriving at the adjusted gross receipts tax base of P724,574,784.79, it deducted from the original gross receipts of P769,902,611.98 the amount of P5,037,709.09 representing the 20% tax withheld on income received and booked net of final tax and P40,290,118.10 representing the 20% final tax withheld on tax paid income booked at gross. Petitioner is now claiming the excess GRT paid amounting to P2,266,391.36. As there was no action on the part of herein Respondent, the instant Petition was filed on April 21, 1999 to toll the running of the two-year prescriptive period. In his Answer filed on February 20, 1998, Respondent raised the following Special and Affirmative Defenses, to wit: xxx xxx xxx 11. The decision in Asian Bank Corporation vs. Commissioner of Internal Revenue (CTA Case No. 4720) is pending appeal with the Court of Tax Appeals. Hence, invocation thereof at this point in time is premature. 12. There is no provision in the Tax Code or any Special Law which excludes the 20% final income tax withholding under Section 50(a) of the Tax Code, as no longer forming part of the gross receipts for the purpose of the computation of gross receipt tax under Section 119 of the Tax Code. 13. The petition does not state a cause of action as there is no allegation that the tax sought to be refunded was actually paid to the Bureau of Internal Revenue and that the 20% final withholding tax on income was actually remitted by its withholding agents in accordance with the provisions of the Tax Code. 14. The claim for refund is pending administrative investigation. 15. Taxes are presumed to have been collected in accordance with law. Hence, petitioner must prove that taxes sought to be refunded were erroneously or illegally collected. 16. The non-inclusion of the 20% final withholding tax on income from the gross income for purposes of the gross receipts tax operates as an exemption from tax Hence, the same must be construed strictly against the one who asserts the claim of exemption, considering that tax exemption can only be given effect when the grant is clear and categorical inasmuch as taxation is the rule and exemption is the exception. 17. Claims for refund of taxes are to be construed strictly against the claimants, the same being in the nature of an exemption from taxation (Manila Electric Co. vs. Commissioner of Internal Revenue, 67 SCRA 351). 18. Petitioner must show that it has complied with the provisions of Sections 204(3) and Section 230 of the Tax Code, as amended. In order to substantiate its claim for refund, Petitioner presented the following documentary evidence, to wit: Exhibits Description A Petitioner's Transmittal of Quarterly Withholding Tax Returns for Quarter Ended March 31, 1997 B Petitioner's Head Office Quarterly Percentage Tax Return C Written claim for refund dated December 29, 1997 D Petitioner's Head Office Income and Expense Statement E to F-2 Petitioner's Subsidiary Ledger Transactions on Expense Account In the Joint Stipulation of Facts and Issues approved of July 28, 1999, the parties agreed to limit the issues to be resolved on the following: 1. Whether or not EBC Head Office actually included in the computation of its GRT Base for the quarter ended March 31, 1997 the amounts of [a] P5,037,709.09 (representing 20% tax withheld booked net of 20% final tax during the quarter ended March 31, 1997), and [b] P40,290,118.10 (representing 20% final tax withheld on tax paid income booked at gross [100%] subjected to gross receipts tax for the quarter ended March 31, 1997). 2. Whether or not the said amounts represented the twenty percent (20%) final tax on certain passive income of EBC for the said quarter. 3. Whether or not the said amounts were received by EBC as part of its gross receipts for the said quarter. 4. Whether or not the respective withholding agents of EBC have paid the aid amounts to the BIR 5. Whether or not EBC is entitled to its claim for refund covering the said quarter and for how much. As the aforementioned issues are interrelated, We deem it best to streamline and simplify them to one main issue: whether or not Petitioner is entitled to the refund of the amount of P2,266,391.00 allegedly representing the excess gross receipts tax paid. To begin with, the legal controversy at bar is not one of first impression. This Court has already settled the legal aspect of this case Asian Bank Corporation vs. Revenue, CTA Case No. 4720 promulgated on January 30, 1996 wherein it ruled that the 20% final withhold tax on a bank or a financial institution's passive income should not form part of its gross receipts tax base for purposes of computing the gross receipts tax. However, even if the law entitles Petitioner to a refund of overpaid gross receipts taxes, it does not necessarily follow that there shall be an automatic grant of the claim in the absence of sufficient and convincing factual evidence to prove its entitlement thereto. Thus, in order to be entitled to the refund of overpaid gross receipts tax based on the Asian Bank decision ( supra ), Petitioner must sufficiently prove the following: 1. That it actually paid the 20% final withholding taxes on its gross receipts from passive income; 2. That the 20% final withholding tax on passive income formed part of its gross receipts subjected to the gross receipts tax; and 3. That it actually paid the GRT due on its gross receipts from passive income inclusive of the 20% final withholding taxes ( see Equitable Banking Corporation vs. CIR, CTA Case No. 5661, March 30, 2000; Bank of the Philippine Islands vs. Commissioner of Internal Revenue, CTA Case No. 5458, February 15, 1999; Solid Bank Corporation vs. Commissioner of Internal Avenue, CTA Case No. 5408, April 14, 1999 ) After a thorough examination of the evidence adduced Petitioner, this Court finds that the above requirements were not satisfactorily met. Petitioner's Quarterly Percentage Tax Return and the Transmittal Sheet of percentage Tax of Head Office and Branches/Units of Large Taxpayers showed that Petitioner's head office paid a gross receipts tax of P32,334,361.88 on taxable gross receipts of P769,902,611.98 (Exh. C-3). Petitioner allegedly included in its taxable gross receipts of P769,902,611.98 the amounts of P5,037,709.09 (Exh. C-4) representing 20% final tax withheld on income received and booked net of 20% final tax and P40,290,118.10 (Exh. C-5) representing 20% final tax withheld on tax paid income booked at gross for which 5% gross receipts tax of P2,266,391.36 (Exh. C-8) was allegedly paid. Based on the evidence on record, Petitioner failed to present proof of actual withholding of the 20% final taxes of P5,037,709.09 and P40,290,118.10. The certificates of final taxes withheld issued by the withholding agents or issuers of the investment securities showing the amount of interest income payment and the corresponding final withholding tax were not presented. Nowhere from among the documents presented would show that the alleged 20% final tax on its interest income was actually withheld and remitted so the BIR In the case entitled China Banking Corporation vs. Commissioner of Internal Revenue,C.T.A. Case No. 5433, dated October 7, 1998, this Court has the occasion to rule on the importance of presenting the certificates of final income tax withheld in cases where the Petitioner is claiming refund of gross receipts tax. In this case, the Court found Petitioner legally entitled to the refund but denied the petition for review for failure of Petitioner to produce the said document, thus: A thorough and careful examination of all the documentary evidence presented by the Petitioner reveals that Petitioner has failed to substantially prove its entitlement to the refund/credit sought. Even though, Petitioner in-the case at bar had satisfactorily proved through various documentary evidence that it actually paid its gross receipts taxes which was computed based on its gross receipts inclusive of the 20% final withholding tax on the bank's interest income, it however failed to prove that the said 20% final withholding taxes were actually paid and remitted to the Bureau of Internal Revenue, thus entitling the same to be excluded from the computation of Petitioner's gross receipt's tax. Petitioner is reminded that in the case of Asian Bank Corporation ( supra ) from which it based its claim for refund, a disputable presumption exists that the final tax excluded from the computation of gross receipts tax already "went to the coffers of the government", and therefore, should no longer form part of its gross receipts for the purpose of computing the GRT. This Court in deciding on the Asian Bank case sought to avoid the unfavored existence of double taxation. In the instant case, Petitioner showed no convincing proof that it suffered from being erroneously taxed twice thus entitling it to the refund sought. It is our opinion that for the Petitioner to substantially prove its entitlement to the refund/credit sought, it should have presented as evidence copies of Certificates of Final Tax Withheld issued by the withholding agents, . . . or any proof whatsoever that would show payment of the 20% final withholding tax and which would necessarily justify its exclusion from Petitioner's gross receipts. Petitioner likewise failed to substantiate that the 20% final withholding taxes formed part of its gross receipts subjected to the gross receipts tax. While Petitioner's 1997 first quarter taxable gross receipts (passive and non-passive) and the corresponding gross receipts tax appearing in its 1997 first quarterly percentage tax return (Exh. B.) tally with those appearing in its computation sheet and subsidiary ledger (Exhs. C-3 to C-8; E to I-8-a), however the amounts of passive income shown in the computation sheet and subsidiary ledger cannot be verified as to whether these were recorded at gross or net of the 20% withholding taxes. The amount indicated therein could only be ascertained through the source documents which could support and establish the accuracy of the figures as declared by the Petitioner. Petitioner should have adduced as evidence supporting documents such as detailed transaction records, confirmation of purchase, confirmation of sale, trading sheets, credit/debit advises accounting tickets, certificates of final taxes withheld, etc., to show the actual receipt of income and the withholding of the corresponding 20% final tax. The contention of the Petitioner that the entries in the general and subsidiary ledgers should be given highest probative value, pursuant to Section 43 of Rule 130 of the Rules of Court, holds no water. While it is true that entries in the ledger are made by a bank personnel in his professional capacity or in the performance of a duty in the ordinary or regular course of business, it is still necessary that the source document be presented to verify the contents. Absent this pertinent document, a serious doubt would be created as to the veracity, accuracy and truthfulness of the entries made. Contrary to Petitioner's assertion, the ledger balances and the working papers bearing the data of each of the transaction are not sufficient proof of Petitioner's claim for refund. Entries in the general ledger are already the results or summation of Petitioner's detailed transaction on passive investments. Thus, the raw data entered in the ledger should be corroborated by the production of the best evidence obtainable, such as the above-mentioned source documents. As public interest is involved in tax refunds, this Court should be cautious of litigants presenting its case without any supporting documents that would attest to the accuracy of the amount it claimed for refund ( Equitable Banking Corporation vs. CIR CTA Case No. 5914, June 28,2000) . As tax refunds are in the nature of tax exemption and regarded as in derogation of sovereign authority, it should be construed strictissimi juris against the claimant ( CIR vs. Procter and Gamble Phils., Mfg., Corp., 204 SCRA 337) . This strict construction of tax refunds necessitates upon the claimant to create a prima facie in his favor. Thus, he must justify his claim by showing covering proofs and introducing strong evidence to satisfactorily sustain his point of contention. Failure on his part to adduce pertinent and substantial to his case is fatal to his claim (ibid.) . Finally, we are not swayed by Petitioner's ratiocination that in the Asian Bank case what is essential to prove is that a financial institution did not receive the amount of 20% final tax for it not to include the same in the computation of gross receipts tax. Petitioner failed to analyze that the Asian Bank case involves an assessment case that presupposes an audit from Respondent's examiners and requires only a ruling from the Court regarding exclusion of final taxes in the base of gross receipts. It does not involve a refund case wherein petitioner should adduce evidence to show payment of final tax in order to be entitled to a refund ( Equitable Banking Corporation vs. CIR, CTA Case No. 5640, June 7, 2000 ). Inasmuch as Petitioner failed to prove the inclusion of the 20% final withholding of taxes of P5,037,709.09 and P40,290,118.10 in its 1997 quarterly gross receipts from passive income subjected to 5% GRT, it then follows that it failed to show that the corresponding 5% GRT of P2,266,391.36 was included in its 1997 total quarterly GRT payment of P32,334,361.88. WHEREFORE, in view of the foregoing, the instant Petition for Review is hereby DENIED for 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) Note that in the Asian Bank case, said bank was being assessed for deficiency gross receipts 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 be 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 disbursement 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) 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. By quoting a superseded revenue regulation, Petitioner in the Asian Bank case, led this Court to believe that indeed the basis of the 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 N D. 17-84 clearly and categorically provides that the basis of such tax is inclusive of the final withholding tax. Section 2.57 of Revenue Regulations No. 2-98 implementing Republic Act No. 8424 also provides that the bases of the 5% gross receipts tax includes the 20% final withholding income tax deducted at source, to wit: Sec. 2.57. Withholding of Tax at Source. (A) Final Withholding Tax. Under the final withholding tax system the amount of income tax withheld by the withholding agent is constituted as a full and final payment of the income tax due from the payee on the said income. The liability for payment of the tax rests primarily on the payor as a withholding agent. Thus, in case of his failure to withhold or in case of under withholding, the deficiency tax shall be collected from the payor/withholding agent. The payee is not required to file an income tax return for the particular income. The finality of the withholding tax is limited only to the payee's income tax liability on the particular income. It does not extend to the payee's other tax liability on said income, such as when the said income is further subject to a percentage tax. For example, if a bank receives income subject to final withholding tax, the same shall be subject to a percentage 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 affirmed 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 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 money 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 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 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 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 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 Compania Maritima case where the non-inclusion of the 10% reserve from the total cash collection to avoid claim for refund or freight and passengers tickets not taken is not provided by any law or legal rule or regulation. In the Asian Bank Corporation case, petitioner 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, 6'n Edition, I ). 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. Beside, 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). ACaTIc 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