SM Development Corp. v. Commissioner of Internal Revenue

SPECIAL SECOND DIVISION [C.T.A. CASE NO. 9396. April 8, 2019.] SM DEVELOPMENT CORPORATION , petitioner , vs. COMMISSIONER OF INTERNAL REVENUE , respondent . DECISION CASTAEDA, JR. , J p : This case involves a Petition for Review 1 filed on July 27, 2016 by SM Development Corporation to seek the cancellation of the alleged deficiency income tax, value-added tax (VAT), withholding tax on compensation (WTC), expanded withholding tax (EWT), fringe benefits tax (FBT), and documentary stamp tax (DST) in the aggregate amount of P2,079,673,845.35 2 for taxable year 2009. HTcADC THE FACTS Petitioner SM Development Corporation is a corporation duly organized and existing under the laws of the Philippines, with principal business address at 15F Two E-Com Center, Harbor Drive, MOA Complex, Pasay City. 3 It is also registered with the Bureau of Internal Revenue (BIR), with Taxpayer Identification No. 000-601-470-000 4 and Permit to Use Computerized Accounting System or Components thereof via its Permit No. 051-CAS-122807-000012 5 dated December 28, 2007. 6 On the other hand, respondent is the duly appointed Commissioner of the Bureau of Internal Revenue who has the power to decide on disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties imposed in relation thereto or other matters arising under the National Internal Revenue Code (NIRC) or other laws or portions thereof administered by the BIR. He holds office at the BIR National Office Building, BIR Road, Diliman, Quezon City. CAIHTE Pursuant to BIR Letter of Authority (LOA) No. LOA-125-2010-00000111 7 dated May 14, 2010, which was served to petitioner on May 20, 2010, revenue examiners from LT Regular Audit Division 2 of the Large Taxpayers Service Regular of the BIR conducted a tax examination/audit of petitioner's books of accounts and other accounting records for all internal revenue taxes for taxable year 2009 pursuant to Revenue Memorandum Order (RMO) No. 36-2010 (Conglomerate Audit Program). 8 Petitioner, through Ms. Cecilia R. Patricio, Senior Vice President-Corporate Tax Division, executed the following Waivers of the Statute of Limitation under the National Internal Revenue Code, extending the BIR's period to assess: 9 aScITE Waiver Date of Execution Last day of Period to Assess 1st April 25, 2012 10 December 31, 2012 2nd August 22, 2012 11 March 31, 2013 3rd January 19, 2013 12 December 31, 2013 4th August 29, 2013 13 April 30, 2014 5th January 27, 2014 14 September 30, 2014 6th August 6, 2014 15 December 31, 2014 7th November 14, 2014 16 April 30, 2015 8th March 3, 2015 17 August 31, 2015 On July 10, 2014, petitioner received from the BIR a copy of the Preliminary Assessment Notice 18 (PAN) covering various assessments for deficiency income tax, VAT, WTC, EWT, FBT, and DST for taxable year 2009 in the total amount of P1,724,540,187.98, inclusive of surcharge, interest, and compromise penalty. 19 Petitioner filed with the BIR its protest letter 20 against the PAN on July 25, 2014. 21 On March 17, 2015, petitioner received from the BIR the Formal Letter of Demand/Formal Assessment Notice 22 (FLD/FAN) dated March 13, 2015, together with the Details of Discrepancies, for deficiency income tax, VAT, WTC, EWT, FBT, and DST in the aggregate amount of P1,848,309,206.42, inclusive of surcharge, interest, and compromise penalty for taxable year of 2009. 23 DETACa The BIR received petitioner's protest letter 24 with request for reinvestigation on April 16, 2015. 25 On June 15, 2015, petitioner filed its letter 26 with the BIR submitting the relevant supporting documents to its protest letter. Petitioner received a copy of the Final Decision on Disputed Assessment 27 (FDDA) on June 27, 2016, which denied petitioner's protest letter by reiterating the demand for payment of the aggregate amount of P2,079,673,845.35, inclusive of increments, for deficiency income tax, VAT, WTC, EWT, FBT, and DST for taxable year 2009, broken down as follows: 28 Basic Tax Surcharge Interest Compromise Total Income Tax P808,765,458.34 P- P1,005,084,964.12 P50,000.00 P1,813,900,422.46 VAT 96,742,570.95 - 124,466,606.34 50,000.00 221,259,177.29 WTC 2,494,288.32 - 3,222,757.18 25,000.00 5,742,045.50 EWT 7,616,053.41 - 9,840,358.32 50,000.00 17,506,411.73 FBT 1,498,580.71 374,645.18 1,936,248.39 25,000.00 3,834,474.28 DST 6,822,798.99 1,705,699.75 8,852,815.35 50,000.00 17,431,314.09 Total P923,939,750.72 P2,080,344.93 P1,153,403,749.70 P250,000.00 P2,079,673,845.35 Hence, the instant petition. On November 7, 2016, respondent filed his Answer, 29 interposing the following special and affirmative defenses: HEITAD " SPECIAL AND AFFIRMATIVE DEFENSES 4. Respondent re-pleads and adopts the preceding paragraphs of this Answer as part of his Special and Affirmative Defenses. RESPONDENT ISSUED THE ASSESSMENT AND SERVED IT TO PETITIONER WITHIN THE PERIOD PRESCRIBED BY LAW . A. RESPONDENT'S RIGHT TO ASSESS PETITIONER FOR TAXABLE YEAR 2009 DID NOT PRESCRIBE AS THE THREE (3)-YEAR PERIOD WITHIN WHICH TO MAKE THE ASSESSMENT FINDS NO APPLICATION TO THE INSTANT CASE. 5. Petitioner contends that the assessment was issued beyond the prescriptive period provided by law. 6. Respondent respectfully disagrees. Petitioner failed to consider that the applicable prescriptive period to assess in this case is ten (10) years from discovery of false or fraudulent return. 7. Section 222 (a) of the Tax Code specifically provides: xxx xxx xxx 8. In the instant case, preliminary review disclosed that petitioner failed to declare its correct Taxable Income subject to Income Tax. Perusal of the Final Decision on Disputed Assessment (FDDA) revealed that petitioner only declared in its Income Tax return the amount of P575,145,486.00. However, result of the audit investigation revealed that the taxable income per audit should have been P981,309,104.14. This result to a substantial under declaration of around 41% of the supposed taxable income of petitioner. aDSIHc 9. In addition, perusal of the same FDDA revealed that petitioner declared the amount of P1,206,850,730.07 as taxable sales in its VAT returns. However, after audit, the correct amount of sales should have been P2,013,038,821.28. This means, there was under declaration of sales in the amount of P806,188,091.21 or around 40%. 10. The foregoing only concludes that petitioner committed substantial underdeclaration of its taxable income and sales, therefore, clearly falls under false or fraudulent return. 11. The Honorable Supreme Court in the case of Aznar vs. CTA , had the occasion to define false or fraudulent return in this wise: ATICcS That there is a difference between 'false return' and 'fraudulent return' cannot be denied. While the first merely implies deviation from the truth, whether intentional or not , the second implies intentional or deceitful entry with intent to evade the taxes due. (Emphasis ours) 12. Since the correct sales of petitioner did not appear in its VAT returns and the correct taxable income in its Income Tax return, there can only be one inevitable conclusion that there was a substantial under-declaration in its VAT and Income Tax returns. 13. To reiterate, a false return implies deviation from the truth, whether intentional or not . Although the Aznar case distinguishes what constitute 'false returns' referring to mistake, carelessness or ignorance, from that of 'fraudulent returns' referring to intent to evade taxes, the same case does not make a distinction as regards the prescriptive period of 10 years. Indeed, in the same case of Aznar , the Supreme Court ruled in favor of the Commissioner of Internal Revenue (CIR) for an extension of 10-year to assess the taxpayer, thus: xxx xxx xxx 14. It is clear from the statutory provision in Section 222 of the Tax Code that in the three different cases of (1) false return, (2) fraudulent return with intent to evade tax, or (3) failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may begin without assessment, at any time within 10 years after the discovery of the (1) falsity, (2) fraud, (3) omission. The discrepancy in petitioner's return manifests an evident substantial underdeclaration which eloquently demonstrates the falsity or fraudulence of the VAT and Income Tax returns with an intent to evade the payment of tax. Respondent, could therefore, rightfully invoke Section 222 because his right to assess has not yet prescribed. ETHIDa B. EVEN ASSUMING BUT WITHOUT CONCEDING THAT THE ORDINARY PERIOD OF PRESCRIPTION WITHIN WHICH TO ASSESS TAX LIABILITIES IS APPLICABLE, RESPONDENT'S RIGHT TO ASSESS PETITIONER FOR TAXABLE YEAR 2009 STILL DID NOT PRESCRIBE. 15. Section 203 of the Tax Code provides the period within which assessment should be made, to wit: xxx xxx xxx 16. Since internal revenue taxes shall be assessed within three (3) years after the last day prescribed by law for the filing of the return, applying the foregoing provision, the last day for filing of return for taxable year 2009 is 15 April 2010, hence, petitioner's internal revenue taxes can be assessed three (3) years therefrom, or until 15 April 2013. TIADCc 17. As an exception to the ordinary three (3)-year prescriptive period, Section 222 (b) of the Tax Code allows extension of the period to assess provided there is valid waiver of the statute of limitation. 18. A perusal of the BIR records revealed that, before the expiration of the three (3)-year prescriptive period, petitioner executed waivers which validly extended the period to assess, to wit: xxx xxx xxx 19. From the foregoing, considering that petitioner executed valid waivers extending the period to assess until 30 April 2015 , the Formal Letter of Demand (FLD) dated 13 March 2015 and Final Assessment Notices (FAN) that were received by petitioner on 17 March 2015 did not prescribe . 20. Moreover, as regards the withholding taxes involved, petitioner, being a withholding agent, has the obligation to withhold the tax as agent of the government and to remit the same to the government. The taxes it withholds are held in trust for the government. 21. While Section 203 of the Tax Code states that '[e]xcept as provided in Section 222, internal revenue taxes shall be assessed within three (3) years after the last day prescribed by law for the filing of the return x x x,' a cursory reading of the said provision would reveal that the period of limitation to conduct an assessment extends only to assessment of ' all internal revenue taxes ' as distinguished from assessment of ' penalties ' on the withholding agent for its failure to remit to the government the proper amount of tax withheld. cSEDTC 22. To point out, a withholding tax is not an internal revenue tax but is only a system used to collect income tax in advance. Withholding is a system, the actual tax is income tax . This ensures that taxes will be paid first, and will be paid on time as the government needs the funding to meet its obligations. The system is used to equal or at least approximate or collect in full the tax due from the payor on certain income payments. 23. In Commissioner of Internal Revenue vs. The Court of Appeals, Court of Tax Appeals and A. Soriano Corp., G.R. No. 108576, January 20, 1999 , it was provided: 'In the operation of the withholding tax system, the withholding agent is the payor, a separate entity acting no more than an agent of the government for the collection of the tax in order to ensure its payments; the payer is the taxpayer he is the person subject to tax imposed by law; and the payee is the taxing authority. In other words, the withholding agent is merely a tax collector, not a taxpayer . Under the Withholding system, however, the agent-payor becomes a payee by fiction of law. His (agent) liability is direct and independent from the taxpayer, because the income tax is still impose on and due from the latter. The agent is not liable for the tax as no wealth flowed into him he earned no income . x x x.' (Emphasis Supplied) AIDSTE 24. Clearly, in case of breach by the agent of his legal duty, he is assessed not for the collection of income tax . He is merely penalized for failure to comply with the withholding tax provision. Therefore, in case of such breach, and no income taxes were withheld or remitted by the agent, the agent is penalized. The tax cannot be collected from the agent because as stated in the above case, '(t)he agent is not liable for the tax as no wealth flowed into him he earned no income.' The cause of action against the withholding agent is not for the collection of the tax but for the enforcement of the withholding tax provision of the Tax Code. 25. The fact that the amount sought to be collected from the withholding agent is not a tax , despite the nomenclature 'deficiency tax,' but rather a penalty has long been emphasized by the Honorable Supreme Court in NATIONAL DEVELOPMENT COMPANY vs. COMMISSIONER OF INTERNAL REVENUE, G.R. No. L-53961, June 30, 1987 , stating: xxx xxx xxx 26. Prescinding from the foregoing circumstances, respondent humbly posits that the period of limitation upon assessment provided in Section 203 of the Tax Code finds no application. The said provision prescribes a limitation only as to the assessment and collection of taxes but not of penalties . Simply put, the provision protects statutory taxpayers, but not agents who are remiss on their obligations. SDAaTC 27. Considering the foregoing discussion, respondent's right to assess petitioner for the deficiency taxes has not prescribed, thus, the assessment is valid and lawful. THE WAIVERS EXECUTED BY PETITIONER ARE VALID . 28. The waivers executed by petitioner validly extended the period to assess until 30 April 2015. 29. Petitioner even alleged that it executed the eighth waiver on 3 March 2015 that stretched the right to assess of the BIR until 31 August 2015. 30. Petitioner unreasonably challenges its own waivers by stating that the same are invalid and defective. It unjustly questions the validity of the waivers executed by interposing that the formalities and requisites of a valid waiver have not been complied with. AaCTcI 31. Respondent submits that the waivers are in the form prescribed by law, duly notarized, and executed by petitioner's duly authorized representative, therefore, valid and binding upon petitioner. 32. Petitioner erroneously alleged that the signature of Cecilia R. Patricio in the waivers should not be given credence since she was not required by the BIR to present Board Resolution to the effect that she is empowered to sign the Waivers of Statute of Limitation in behalf of petitioner. However, such allegation is misleading and contradicting the actual facts. 33. Respondent notes that the Secretary's Certificate certifying the resolution of the Board of Directors of petitioner was issued which appoints Cecilia R. Patricio as its authorized representative in handling tax cases in connection with the conglomerate tax audit examination of the BIR and authorizes her to sign, execute and deliver waiver and other pertinent documents which may be necessary under the premises for and behalf of petitioner. 34. Clearly, there was substantial compliance with the requirement of presentation of board resolution. Petitioner cannot just execute seven (7) different waivers (or eight waivers as alleged by petitioner), and thereafter contend that all the waivers it executed are mere scrap of paper. 35. The authority of petitioner's representative, Cecilia R. Patricio to sign the waivers of the statute of limitation cannot be impugned by petitioner considering that the requirements for the issuance of a valid waiver were faithfully complied with and respondent acted in good faith and relied on the waivers in delaying the issuance of the Formal Letter of Demand and Final Assessment Notice (FLD/FAN). acEHCD 36. Revenue Memorandum Order No. 20-90 (RMO 20-90) which implements Sections 203 and 222 (b) of the Tax Code provides that the waiver shall be signed by the taxpayer himself or his duly authorized representative, and that in case of a corporation, it must be signed by any of its responsible officials. 37. It is undisputed that Cecilia R. Patricio, SVP-Corporate Tax Division, is one of the responsible officials who can represent petitioner in its transactions with the Bureau of Internal Revenue (BIR). 38. A perusal of petitioner's reply to the Preliminary Assessment Notice dated 25 July 2014 shows that it was signed by Cecilia R. Patricio for and in behalf of petitioner. Also, petitioner's protest to the Formal Letter of Demand/Final Assessment Notice (FLD/FAN) dated 16 April 2015 was signed for Cecilia R. Patricio. 39. Such representation clearly shows that Cecilia R. Patricio was indeed authorized by petitioner to sign and execute necessary documents in its behalf for its transactions with the BIR relative to the tax audit/investigation. Petitioner, in executing and filing such protests to the PAN and FLD/FAN, is estopped from challenging Cecilia R. Patricio's authority. EcTCAD 40. The Honorable Supreme Court held in RIZAL COMMERCIAL BANKING CORPORATION vs. COMMISSIONER OF INTERNAL REVENUE, G.R. No. 170257, September 7, 2011 : xxx xxx xxx 41. Moreover, even assuming but without admitting that respondent was not able to strictly comply with Revenue Memorandum Order No. 20-1990 (RMO 20-1990) and Revenue Delegation Authority Order No. 05-2001 (RDAO 05-2001), the waivers remain valid as upheld by the Honorable Supreme Court in the recent case of COMMISSIONER OF INTERNAL REVENUE VS. NEXT MOBILE, INC. (formerly Nextel Communications Phils., Inc.), G.R. No. 212825, December 7, 2015 , to wit: xxx xxx xxx 42. Petitioner cannot insist on the invalidity of the waivers. Such waivers are clearly valid and effectively extend the period to assess. 43. Therefore, the assessment was issued and served to petitioner within the period of prescribed by law. THE ASSESSMENT ISSUED AGAINST PETITIONER HAS BASES IN FACTS AND LAW 44. Petitioner's contentions in its petition are bereft of merit. The assessment issued against it has bases in fact and in law. 45. After the conduct of investigation, records reveal that there is due from petitioner deficiency income tax, value-added tax, withholding tax on compensation, expanded withholding tax, fringe benefit tax, and documentary stamp tax for taxable year 2009. SDHTEC A. INCOME TAX 46. Respondent assessed deficiency income tax of petitioner based on, among others, gross profit on undeclared sales not subjected to income tax, disallowed expenses for nonwithholding of tax, and disallowed per allocation of expense. a. Gross profit on undeclared sales not subjected to income tax P2,164,465,567.65 47. Verification disclosed that various sales of real property during the year with initial payment of more than 25%, deferred sales, were not reported for the purpose of computation of income tax due in violation of Sec. 49 (B) of the Tax Code. HSAcaE xxx xxx xxx b. Disallowed expenses for non-withholding of tax P513,571,489.48 49. Comparison of expenses claimed as deduction per income tax return as against those subjected to withholding taxes per Alphalist disclosed that petitioner failed to withhold and remit fully to the government the corresponding taxes from income payment/expenses. 50. Clearly, petitioner violated Section 34 (K) of the Tax Code which provides: (K) Additional Requirements for Deductibility of Certain Payments. Any amount paid or payable which is otherwise deductible from, or taken into account in computing gross income or for which depreciation or amortization may be allowed under this Section, shall be allowed as a deduction only if it is shown that the tax required to be deducted and withheld therefrom has been paid to the Bureau of Internal Revenue in accordance with this Sections 58 and 81 of this Code. c. Disallowed per allocation of expense P17,847,804 51. Verification disclosed that per allocation of expense schedule, it was disclosed that operating expense attributable to taxable activity was overcharged by the amount P17,847,804, hence, disallowed pursuant to Section 50 of the Tax Code which states: AScHCD xxx xxx xxx 52. In light of the foregoing, petitioner is correctly assessed of deficiency income tax for taxable year 2009. B. VALUE ADDED TAX a. Undeclared sales not subjected to VAT P447,351,295.21 53. Verification disclosed that petitioner's collections on taxable cash, deferred and installment sales of all its projects amounted to P1,654,202,025.28 while its VAT returns filed reflected P1,206,850,730.07 only. As a result, petitioner failed to include in its return sale of real property amounting to P447,351,295.21 pursuant to Sec. 4.106-3 of Revenue Regulations No. 16-2005, as amended. b. Other income P358,836,796 54. Verification disclosed that petitioner failed to include in its return its other income amounting to P358,836,796.00 (Rent income, Management fee, Commission income and Miscellaneous income), pursuant to Sec. 108 of the Tax Code as implemented by Sec. 4.108-1 of the RR 16-2005, as amended. HESIcT C. WITHHOLDING TAX ON COMPENSATION 55. The assessment represents the tax on the discrepancy in the amount of Salaries and Wages per Books and the amount reflected in the Alphalist amounting to P10,858,895.61 which was not subjected to withholding tax per Revenue Regulations No. 2-98. Withholding tax due of P2,494,288.32 was computed using the composite rate of 22.97% arrived at after factoring the tax due per alphalist of P17,114,673.09 divided by the total taxable salaries of P74,504,065.87 also per alphalist. 56. Also, Section 80 (A) of the Tax Code provides: (A) Employer . The employer shall be liable for the withholding and remittance of the correct amount of tax required to be deducted and withheld under this Chapter. If the employer fails to withhold and remit the correct amount of tax as required to be withheld under the provision of this Chapter, such tax shall be collected from the employer together with the penalties or additions to the tax otherwise applicable in respect to such failure to withhold and remit. D. EXPANDED WITHHOLDING TAX 57. Verification disclosed that petitioner failed to remit in full the expanded withholding tax of its income payments in violation of provisions of RR 2-98, as amended. 58. As previously discussed, petitioner failed to withhold and remit fully to the government the corresponding taxes from income payment. Thus, petitioner violated Section 34 (K) of the Tax Code. AcICHD E. FRINGE BENEFIT TAX 59. Payment of allowances to executives and managers was not subjected to fringe benefit tax pursuant to the provisions of Section 33 of the Tax Code, as implemented by Revenue Regulations No. 3-98, as amended. F. DOCUMENTARY STAMP TAX a. DST on Rental Income P211,672.00 60. Petitioner is liable to pay documentary stamp tax on rental income. As Section 194 of the Tax Code provides: xxx xxx xxx b. Documentary Stamp Tax on advances P6,507,555.00 61. Advances for project development to related parties amounting to P1,301,510,831.00 was subjected to documentary stamp tax at the rate of P1.00 for each P200.00 pursuant to Section 179 of the Tax Code. caITAC 62. Such advances to related parties are covered by debt instruments on which DST is imposed. Section 179 of the Tax Code states: xxx xxx xxx c. DST on sale of treasury shares P103,572.00 63. Sale of 27,619,146 treasury shares was subjected to DST at the rate of P.75 for each P200.00 pursuant to Sec. 175 of the Tax Code. It is stated in Section 175 of the Code: xxx xxx xxx THE ASSESSMENT ISSUED IS VALID AND LAWFUL PETITIONER IS LIABLE FOR THE ASSESSED DEFICIENCY TAXES. 64. In light of the foregoing, petitioner was well informed in writing of the law and facts on which the assessment was made; he clarified the assessment in the Preliminary Assessment Notice (PAN), Formal Letter of Demand (FLD), and Final Decision on Disputed Assessments (FDDA). 65. It can be gleaned from the BIR Records of this case that petitioner filed its protest to the Formal Letter of Demand and submitted supporting documents. However, evaluation thereof disclosed that they are not sufficient to warrant reduction or cancellation of the deficiency tax assessments. Petitioner failed to substantiate its allegations to prove irregularities in the assessment. 66. 'The basic rule is that mere allegation is not evidence, and is not equivalent to proof.' TAIaHE 67. Considering that the assessments are prima facie correct, respondent need not prove the presumption of regularity of the assessment. 68. Section 3, Rule 131 of the Rules of Court provides: xxx xxx xxx 69. Assessments are presumed correct and made in good faith. The taxpayer has the duty of proving otherwise. In the absence of proof of any irregularities in the performance of official duties, an assessment will not be disturbed. Even an assessment based on estimates is prima facie valid and lawful where it does not appear to have been arrived at arbitrarily or capriciously. (Marcos II vs. Court of Appeals, G.R. No. 120880, June 5, 1997.) 70. The burden of proof is on the taxpayer contesting the validity or correctness of an assessment to prove not only that the Commissioner of Internal Revenue is wrong but the taxpayer is right. Otherwise the presumption of correctness of tax assessment stands. (Commissioner of Internal Revenue vs. Hantex Trading Co., Inc., G.R. No. 136975, March 31, 2005.) 71. All told, petitioner's assertions that the assessment issued to it by respondent has no basis in fact and law are mere fallacy. Above discussion disproves petitioner's claim. Thus, it is reiterated that petitioner is liable for the assessed deficiency income tax, value-added tax, withholding tax on compensation, expanded withholding tax, fringe benefit tax, and documentary stamp tax for taxable year 2009." ICHDca A Notice of Pre-Trial Conference 30 was issued by the Court, setting the case for pre-trial conference on January 19, 2017, which was cancelled and reset to February 16, 2017. 31 Accordingly, respondent's Pre-Trial Brief 32 was filed on January 10, 2017, while petitioner's Pre-Trial Brief 33 was filed on February 10, 2017. The pre-trial conference ensued. 34 The parties submitted their Joint Stipulation of Facts and Issues 35 on March 8, 2017. Subsequently, the Court issued a Pre-Trial Order 36 on March 16, 2017 and the pre-trial was deemed terminated. Upon petitioner's motion, 37 Atty. Adan T. Delamide was commissioned by the Court as Independent Certified Public Accountant (ICPA) on May 29, 2017 and to render a report on the voluminous documents and long accounts of petitioner. 38 On September 8, 2017, the ICPA issued a report. 39 Petitioner presented the testimonies of the following witnesses by way of Judicial Affidavits in lieu of direct examination: Gemma L. Mangaliman 40 and ICPA Adan T. Delamide. 41 TCAScE Petitioner's Formal Offer of Evidence 42 was filed on October 3, 2017. In the Resolution 43 issued on November 3, 2017, the Court admitted Exhibits "P-1", "P-2", "P-2-A", "P-3", "P-4", "P-5", "P-6", "P-7", "P-8", "P-9", "P-10", "P-11", "P-12", "P-13", "P-14", "P-15", "P-16", "P-17", "P-18", "P-19", "P-20", "P-21", "P-22", "P-23", "P-24", "P-25", "P-26", "P-27", "P-28", "P-29", "P-30", "P-31", "P-32", "P-33", "P-34", "P-35", "P-36", "P-37", "P-38", "P-39", "P-40", "P-41", "P-42", "P-43", "P-44", "P-45", "P-46", "P-47", "P-49", "P-50", "P-51", "P-52", "P-53", "P-54", "P-55", "P-56", "P-57", "P-58", "P-59", "P-60", "P-60-A", "P-61", "P-61-A", "P-62", "P-62-A", "P-63", "P-64", "P-64-A", "P-65", "P-65-A", "P-66", "P-66-A", "P-67", "P-67-A", "P-68", "P-69", "P-69-A", "P-70", "P-70-A", "P-71" to "P-63024", "P-63025" to "P-70912", "P-70913" to "P-70947", "P-70948" to "P-70963", "P-70964" to "P-70983", "P-70984" to "P-71018", "P-71019" to "P-71025", "P-71026" to "P-71028", "P-71029", "P-71030" to "P-71034", "P-71035", "P-71036", "P-71037", "P-71038" to "P-71041", "P-71042" to "P-71052", "P-71053", "P-71053-A", "P-71054", "P-71054-A", and "P-71055-A" to "P-71055-C". However, the Court denied Exhibit "P-48" for failure to submit the duly marked document/exhibit. On the other hand, respondent presented Revenue Officer Manuel T. Tasarra as his witness, who testified by way of Judicial Affidavit 44 in lieu of direct examination. ASEcHI Respondent filed his Formal Offer of Evidence 45 on December 11, 2017. Subsequently, the Court admitted Exhibits "R-1", "R-1-A", "R-2", "R-3", "R-4", "R-5", "R-6", "R-7", "R-8", "R-9", "R-10", "R-11", "R-12", "R-13", "R-14", "R-15", "R-15-A", "R-16", "R-17", "R-18", and "R-19" through a Resolution 46 dated January 17, 2018. The Court declared the case deemed submitted for decision on April 13, 2018, 47 considering respondent's Memorandum 48 filed on February 26, 2018 and petitioner's Memorandum 49 filed on April 10, 2018. THE ISSUE Per parties' stipulation, the lone issue 50 for the Court's determination is: "Whether petitioner is liable to pay the assessed deficiency Income Tax, Value-Added Tax, Withholding Tax on Compensation, Expanded Withholding Tax, Fringe Benefit Tax, and Documentary Stamp Tax for taxable year 2009, plus surcharge, 20% deficiency and delinquency interest pursuant to Sections 248 and 249 of the Tax Code." Petitioner's Arguments 51 Petitioner argues that the Waivers executed by Ms. Cecilia R. Patricio which purport to extend the prescriptive period are invalid and ineffective for the following reasons: (a) the date of receipt by petitioner of the duly signed Waivers specifically the 2nd, 4th and 6th Waivers is not indicated therein; (b) the 2nd, 3rd, 4th, 5th, 6th, and 7th Waivers do not show the date when respondent accepted such Waivers; and (c) the acknowledgment in the 4th, 5th, 6th, and 7th Waivers indicates that Cecilia R. Patricio was acting as the authorized representative of Supplies Station, Inc. and not of SM Development Corporation. cTDaEH Petitioner points out that since the said Waivers were not in accordance with the provisions of Section 222 (B) of the National Internal Revenue Code of 1997, as amended, Revenue Memorandum Order (RMO) No. 20-90, and Revenue Delegation Authority Order (RDAO) No. 5-2001, the same should not be given any force and effect and should be disregarded. Thus, it is clear that respondent's right to assess petitioner for deficiency taxes for taxable year 2009 has lapsed since the FLD/FAN was belatedly issued on March 13, 2015, which is beyond the three-year prescriptive period provided by law. Granting without conceding that the assessment for deficiency taxes has not prescribed, petitioner avers that the assessment is void for lack of factual and legal bases. Respondent's Arguments 52 Respondent counters that the assessments have not prescribed. He claims that petitioner failed to consider that the applicable prescriptive period to assess in this case is ten (10) years from discovery of a false return, pursuant to Section 222 (a) of the NIRC of 1997, as amended. Perusal of the FDDA revealed that there is a substantial underdeclaration of around 41% of the supposed taxable income and underdeclaration of around 40% of taxable sales. From the foregoing, it clearly falls under false or fraudulent return. ITAaHc Even assuming but without conceding that the ordinary three (3)-year prescriptive period within which to assess tax liabilities is applicable, respondent maintains that the period to assess still did not prescribe. Section 222 (b) of the NIRC of 1997 allows extension of the period to assess, provided there is a valid waiver of the statute of limitation. Respondent claims that contrary to the allegation of petitioner, a perusal of the BIR Records revealed that, before the expiration of the three-year prescriptive period, petitioner executed seven (7) Waivers consecutively which validly extended the period to assess until April 30, 2015. Petitioner even alleged that there was an eighth (8th) Waiver executed on March 3, 2015 that stretched the right to assess until August 31, 2015. From the foregoing, the FLD/FAN dated March 13, 2015 which was received by petitioner on March 17, 2015 was timely issued. Further, respondent posits that a withholding tax is not an internal revenue tax but is only a system used to collect income tax in advance. In case of breach by the withholding agent of his legal duty, he is assessed not for the collection of income tax but he is merely penalized for failure to comply with the withholding tax provision. From the foregoing circumstances, the prescriptive period to assess has no application since Section 203 of the NIRC of 1997 only applies to assessment and collection of taxes, but not to penalties. On the claim of petitioner that the Waivers are invalid, respondent submits that the Waivers are in the form prescribed by law, duly notarized, and executed by petitioner's duly authorized representative as shown in the Secretary's Certificate certifying the resolution of the Board of Directors appointing Cecilia R. Patricio as its authorized representative. Moreover, respondent avers that petitioner was fully aware of the execution of the Waiver and had every opportunity to deny it but failed to do so. Thus, petitioner should be estopped from assailing the existence and due execution of the Waiver. cSaATC Respondent further asserts that the assessment issued against petitioner has bases in fact and law. Hence, petitioner is liable for the assessed deficiency income tax, VAT, WTC, EWT, FBT, and DST for taxable year 2009. THE COURT'S RULING The Court has jurisdiction over the petition The Court shall first determine whether it has jurisdiction over the Petition for Review in relation to the assessment issued by respondent against petitioner. Jurisdiction over the subject matter or nature of an action is fundamental for a court to act on a given controversy, and is conferred only by law and not by the consent or waiver upon a court which, otherwise, would have no jurisdiction over the subject matter or nature of an action. Lack of jurisdiction of the court over an action or the subject matter of an action cannot be cured by the silence, acquiescence, or even by express consent of the parties. If the court has no jurisdiction over the nature of an action, its only jurisdiction is to dismiss the case. The court could not decide the case on the merits. 53 CHTAIc Section 228 of the National Internal Revenue Code of 1997, as amended, provides: "SEC. 228. Protesting of Assessment . When the Commissioner or his duly authorized representative finds that proper taxes should be assessed, he shall first notify the taxpayer of his findings: Provided, however , That a preassessment notice shall not be required in the following cases: xxx xxx xxx The taxpayers shall be informed in writing of the law and the facts on which the assessment is made; otherwise, the assessment shall be void. Within a period to be prescribed by implementing rules and regulations, the taxpayer shall be required to respond to said notice. If the taxpayer fails to respond, the Commissioner or his duly authorized representative shall issue an assessment based on his findings. Such assessment may be protested administratively by filing a request for reconsideration or reinvestigation within thirty (30) days from receipt of the assessment in such form and manner as may be prescribed by implementing rules and regulations. Within sixty (60) days from filing of the protest, all relevant supporting documents shall have been submitted; otherwise, the assessment shall become final. If the protest is denied in whole or in part, or is not acted upon within one hundred eighty (180) days from submission of documents, the taxpayer adversely affected by the decision or inaction may appeal to the Court of Tax Appeals within thirty (30) days from receipt of the said decision, or from the lapse of the one hundred eighty (180)-day period ; otherwise, the decision shall become final, executory and demandable." (Emphasis supplied) In relation thereto, Section 11 of Republic Act (RA) No. 1125, as amended, provides: "SEC. 11. Who May Appeal; Mode of Appeal; Effect of Appeal . Any party adversely affected by a decision, ruling or inaction of the Commissioner of Internal Revenue, the Commissioner of Customs, the Secretary of Finance, the Secretary of Trade and Industry or the Secretary of Agriculture or the Central Board of Assessment Appeals or the Regional Trial Courts may file an appeal with the CTA within thirty (30) days after the receipt of such decision or ruling or after the expiration of the period fixed by law for action as referred to in Section 7(a)(2) herein. ISHCcT Appeal shall be made by filing a petition for review under a procedure analogous to that provided for under Rule 42 of the 1997 Rules of Civil Procedure with the CTA within thirty (30) days from the receipt of the decision or ruling or in the case of inaction as herein provided, from the expiration of the period fixed by law to act thereon . A Division of the CTA shall hear the appeal: Provided, however, That with respect to decisions or rulings of the Central Board of Assessment Appeals and the Regional Trial Court in the exercise of its appellate jurisdiction appeal shall be made by filing a petition for review under a procedure analogous to that provided for under Rule 43 of the 1997 Rules of Civil Procedure with the CTA, which shall hear the case en banc ." (Emphasis supplied) Based on the foregoing provisions, petitioner has thirty (30) days either (1) from receipt of denial of the protest or (2) from the lapse of 180-day period fixed by law for the CIR to act upon the protest, within which to file an appeal before this Court. In the case of Lascona Land Co., Inc. vs. Commissioner of Internal Revenue , 54 the Supreme Court held that in case the CIR failed to act on the disputed assessment within the 180-day period from date of submission of documents, a taxpayer can either: (1) file a petition for review with the CTA within 30 days after the expiration of the 180-day period; or (2) await the final decision of the CIR on the disputed assessments and appeal such final decision to the CTA within 30 days after receipt of a copy of such decision, to wit: DHITCc "Therefore, as in Section 228, when the law provided for the remedy to appeal the inaction of the CIR, it did not intend to limit it to a single remedy of filing of an appeal after the lapse of the 180-day prescribed period. Precisely, when a taxpayer protested an assessment, he naturally expects the CIR to decide either positively or negatively. A taxpayer cannot be prejudiced if he chooses to wait for the final decision of the CIR on the protested assessment. More so, because the law and jurisprudence have always contemplated a scenario where the CIR will decide on the protested assessment. It must be emphasized, however, that in case of the inaction of the CIR on the protested assessment, while we reiterate the taxpayer has two options, either: (1) file a petition for review with the CTA within 30 days after the expiration of the 180-day period; or (2) await the final decision of the Commissioner on the disputed assessment and appeal such final decision to the CTA within 30 days after the receipt of a copy of such decision, these options are mutually exclusive and resort to one bars the application of the other ." (Emphasis supplied) In this regard, a taxpayer can opt to wait for the final decision of the CIR on the protested assessment. The taxpayer has the right to appeal such final decision to the CTA by filing a Petition for Review within 30 days after receipt of a copy of such decision or ruling, even if the 180-day period fixed by law for the CIR to act on the disputed assessments has already expired. CAacTH In the case at bar, petitioner opted to wait for the decision of the CIR. Petitioner received the FLD/FAN on March 17, 2015 and filed a protest on April 16, 2015. On June 15, 2015, petitioner filed its letter with the BIR submitting the relevant supporting documents to its protest letter. A year after, on June 27, 2016, petitioner received the FDDA 55 denying its protest letter dated April 16, 2015. Counting 30 days from June 27, 2016, petitioner had until July 27, 2016 within which to file its appeal before this Court. Petitioner filed its petition on July 27, 2016. Since the Petition for Review was filed on time, this Court has jurisdiction to take cognizance of the same. Waivers of the Defense of Prescription executed by petitioner are valid and binding Petitioner argues that the assessment issued by respondent has already prescribed on the ground that the Waivers executed, extending the period to assess, are invalid and ineffective for failure to strictly comply with requirements in accordance with the provisions of Section 222 (B) of the National Internal Revenue Code of 1997, as amended, RMO No. 20-90 and RDAO No. 5-2001. cEaSHC Section 203 of the NIRC of 1997, as amended, mandates the government to assess internal revenue taxes within three years from the last day prescribed by law for the filing of the tax return or the actual date of filing of such return, whichever comes later. Hence, an assessment notice issued after the three-year prescriptive period is no longer valid and effective. 56 The said provision states: "SEC. 203. Period of Limitation upon Assessment and Collection . Except as provided in Section 222, internal revenue taxes shall be assessed within three (3) years after the last day prescribed by law for the filing of the return, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of such period: Provided , That in a case where a return is filed beyond the period prescribed by law, the three (3)-year period shall be counted from the day the return was filed. For purposes of this Section, a return filed before the last day prescribed by law for the filing thereof shall be considered as filed on such last day." However, Section 222 (b) of the NIRC of 1997 provides an exception to this rule, allowing the extension of the period to assess and collect taxes through an execution of a written agreement before the expiration of the three-year period: "SEC. 222. Exceptions as to Period of Limitation of Assessment and Collection of Taxes . IAETDc xxx xxx xxx (b) If before the expiration of the time prescribed in Section 203 for the assessment of the tax, both the Commissioner and the taxpayer have agreed in writing to its assessment after such time, the tax may be assessed within the period agreed upon. The period so agreed upon may be extended by subsequent written agreement made before the expiration of the period previously agreed upon." In relation thereto, in the case of Commissioner of Internal Revenue vs. Standard Chartered Bank , 57 the Supreme Court outlined the procedure for the proper execution of a waiver under RMO No. 20-90 and RDAO No. 05-01, to wit: "1. The waiver must be in the proper form prescribed by RMO 20-90. The phrase 'but not after ________ 19____,' which indicates the expiry date of the period agreed upon to assess/collect the tax after the regular three-year period of prescription, should be filled up. 2. The waiver must be signed by the taxpayer himself or his duly authorized representative. In the case of a corporation, the waiver must be signed by any of its responsible officials. In case the authority is delegated by the taxpayer to a representative, such delegation should be in writing and duly notarized. 3. The waiver should be duly notarized. CTIEac 4. The CIR or the revenue official authorized by him must sign the waiver indicating that the BIR has accepted and agreed to the waiver. The date of such acceptance by the BIR should be indicated. However, before signing the waiver, the CIR or the revenue official authorized by him must make sure that the waiver is in the prescribed form, duly notarized, and executed by the taxpayer or his duly authorized representative. 5. Both the date of execution by the taxpayer and date of acceptance by the Bureau should be before the expiration of the period of prescription or before the lapse of the period agreed upon in case a subsequent agreement is executed. 6. The waiver must be executed in three copies, the original copy to be attached to the docket of the case, the second copy for the taxpayer and the third copy for the Office accepting the waiver. The fact of receipt by the taxpayer of his/her file copy must be indicated in the original copy to show that the taxpayer was notified of the acceptance of the BIR and the perfection of the agreement." The provisions of the RMO and RDAO explicitly show their mandatory nature, requiring strict compliance. Hence, failure to comply with any of the requisites renders a waiver defective and ineffectual. 58 DcHSEa Petitioner argues that the Waivers executed by Ms. Cecilia R. Patricio are invalid and ineffective for the following reasons: 1. the date of receipt by petitioner of the duly signed Waivers specifically the 2nd, 4th, and 6th Waivers is not indicated therein; 2. the 2nd, 3rd, 4th, 5th, 6th, and 7th Waivers do not show the date when respondent accepted such Waivers; and 3. the acknowledgment in the 4th, 5th, 6th, and 7th Waivers indicates that Cecilia R. Patricio was acting as the authorized representative of Supplies Station, Inc. and not of SM Development Corporation. The dates of receipt are indicated on the 2nd, 4th and 6th Waivers Petitioner claims that in its copy of the 2nd, 4th, and 6th Waivers, the date of receipt by petitioner of the signed Waivers are not indicated therein. As earlier stated in the case of Commissioner of Internal Revenue vs. Standard Chartered Bank , 59 the Supreme Court mentioned that, based on RMO No. 20-90 and RDAO No. 05-01, the waiver must be executed in three copies, the original copy to be attached to the docket of the case, the second copy for the taxpayer and the third copy for the Office accepting the waiver. The fact of receipt by the taxpayer of his/her file copy must be indicated in the original copy to show that the taxpayer was notified of the acceptance of the BIR and the perfection of the agreement . SaCIDT Based on the foregoing, the fact of receipt by the taxpayer of his copy of the signed and accepted waiver should be indicated in the original copy, which is attached to the docket of the case . Contrary to petitioner's claim, an examination of the original copy of the 2nd, 4th and 6th Waivers 60 attached to the BIR Records shows that the Waivers were received by petitioner on September 3, 2012, on September 12, 2013, and on August 27, 2014, respectively. Waivers show the date of acceptance by respondent Petitioner asserts that the 2nd, 3rd, 4th, 5th, 6th, and 7th Waivers do not show the date when respondent accepted such Waivers. A perusal of the said Waivers shows that respondent properly indicated the date of acceptance when OIC-Assistant Commissioners of the Large Taxpayers Service, Alfredo V. Misajon and Nestor S. Valeroso, signed the Waivers. The dates of acceptance, which were indicated beside the signatures of the authorized signatories of respondent, are summarized as follows: SCaITA Waiver Date of Execution Last day of Period to Assess Date of Acceptance by the BIR BIR's Authorized Representative 2nd August 22, 2012 61 March 31, 2013 August 31, 2012 Alfredo V. Misajon, OIC-Assistant Commissioner, Large Taxpayers Service 3rd January 19, 2013 62 December 31, 2013 January 25, 2013 Alfredo V. Misajon, OIC-Assistant Commissioner, Large Taxpayers Service 4th August 29, 2013 63 April 30, 2014 September 6, 2013 Alfredo V. Misajon, OIC-Assistant Commissioner, Large Taxpayers Service 5th January 27, 2014 64 September 30, 2014 February 7, 2014 Alfredo V. Misajon, OIC-Assistant Commissioner, Large Taxpayers Service 6th August 6, 2014 65 December 31, 2014 August 18, 2014 Nestor S. Valeroso, OIC-Assistant Commissioner, Large Taxpayers Service 7th November 14, 2014 66 April 30, 2015 November 21, 2014 Nestor S. Valeroso, OIC-Assistant Commissioner, Large Taxpayers Service Thus, the contention of petitioner on the non-indication of date of acceptance on the said Waivers is without merit. Waivers executed by petitioner's authorized representative are valid Petitioner contends that the acknowledgment in the 4th, 5th, 6th, and 7th Waivers indicate that Cecilia R. Patricio was acting as the authorized representative of Supplies Station, Inc. and not of SM Development Corporation, rendering the Waiver invalid. cHECAS The Court has consistently held that a waiver of the statute of limitations must faithfully comply with the provisions of RMO No. 20-90 and RDAO No. 05-01 in order to be valid and binding. However, an exception to this rule is when the circumstances warrant the application of the doctrine of estoppel. In Commissioner of Internal Revenue vs. Next Mobile, Inc. (formerly Nextel Communications Phils., Inc.) , 67 the taxpayer executed five (5) waivers and assailed the validity of the waivers on the basis that the signatory had no authority to sign such waivers. The Supreme Court ruled that the waivers were valid on the ground that both parties are in pari delicto or "in equal fault." The High Court further held that while the application of estoppel should be applied sparingly as an exception to the statute of limitation for assessment of taxes, the doctrine will be applied should the Court finds that it would promote the administration of the law, prevent injustice and avert the accomplishment of a wrong and undue advantage, particularly on highly suspicious situations where both parties are at fault: "Both parties knew the infirmities of the Waivers yet they continued dealing with each other on the strength of these documents without bothering to rectify these infirmities. In fact, in its Letter Protest to the BIR, respondent did not even question the validity of the Waivers or call attention to their alleged defects. aTHCSE In this case, respondent, after deliberately executing defective waivers, raised the very same deficiencies it caused to avoid the tax liability determined by the BIR during the extended assessment period. It must be remembered that by virtue of these Waivers, respondent was given the opportunity to gather and submit documents to substantiate its claims before the CIR during investigation. It was able to postpone the payment of taxes, as well as contest and negotiate the assessment against it. Yet, after enjoying these benefits, respondent challenged the validity of the Waivers when the consequences thereof were not in its favor. In other words, respondent's act of impugning these Waivers after benefiting therefrom and allowing petitioner to rely on the same is an act of bad faith. On the other hand, the stringent requirements in RMO 20-90 and RDAO 05-01 are in place precisely because the BIR put them there. Yet, instead of strictly enforcing its provisions, the BIR defied the mandates of its very own issuances. Verily, if the BIR was truly determined to validly assess and collect taxes from respondent after the prescriptive period, it should have been prudent enough to make sure that all the requirements for the effectivity of the Waivers were followed not only by its revenue officers but also by respondent. The BIR stood to lose millions of pesos in case the Waivers were declared void, as they eventually were by the CTA, but it appears that it was too negligent to even comply with its most basic requirements. AHDacC xxx xxx xxx The general rule is that when a waiver does not comply with the requisites for its validity specified under RMO No. 20-90 and RDAO 01-05, it is invalid and ineffective to extend the prescriptive period to assess taxes. However, due to its peculiar circumstances, We shall treat this case as an exception to this rule and find the Waivers valid for the reasons discussed below. First , the parties in this case are in pari delicto or 'in equal fault.' In pari delicto connotes that the two parties to a controversy are equally culpable or guilty and they shall have no action against each other. However, although the parties are in pari delicto , the Court may interfere and grant relief at the suit of one of them, where public policy requires its intervention, even though the result may be that a benefit will be derived by one party who is in equal guilt with the other. cAaDHT Here, to uphold the validity of the Waivers would be consistent with the public policy embodied in the principle that taxes are the lifeblood of the government, and their prompt and certain availability is an imperious need. Taxes are the nation's lifeblood through which government agencies continue to operate and which the State discharges its functions for the welfare of its constituents. As between the parties, it would be more equitable if petitioner's lapses were allowed to pass and consequently uphold the Waivers in order to support this principle and public policy. Second , the Court has repeatedly pronounced that parties must come to court with clean hands. Parties who do not come to court with clean hands cannot be allowed to benefit from their own wrongdoing. Following the foregoing principle, respondent should not be allowed to benefit from the flaws in its own Waivers and successfully insist on their invalidity in order to evade its responsibility to pay taxes. Third , respondent is estopped from questioning the validity of its Waivers. While it is true that the Court has repeatedly held that the doctrine of estoppel must be sparingly applied as an exception to the statute of limitations for assessment of taxes, the Court finds that the application of the doctrine is justified in this case. Verily, the application of estoppel in this case would promote the administration of the law, prevent injustice and avert the accomplishment of a wrong and undue advantage. Respondent executed five Waivers and delivered them to petitioner, one after the other. It allowed petitioner to rely on them and did not raise any objection against their validity until petitioner assessed taxes and penalties against it. Moreover, the application of estoppel is necessary to prevent the undue injury that the government would suffer because of the cancellation of petitioner's assessment of respondent's tax liabilities . IDSEAH Finally , the Court cannot tolerate this highly suspicious situation. In this case, the taxpayer, on the one hand, after voluntarily executing waivers, insisted on their invalidity by raising the very same defects it caused. On the other hand, the BIR miserably failed to exact from respondent compliance with its rules. The BIR's negligence in the performance of its duties was so gross that it amounted to malice and bad faith. Moreover, the BIR was so lax such that it seemed that it consented to the mistakes in the Waivers. Such a situation is dangerous and open to abuse by unscrupulous taxpayers who intend to escape their responsibility to pay taxes by mere expedient of hiding behind technicalities." (Emphasis supplied) In the instant case, petitioner executed eight (8) Waivers, with the last Waiver extending the period to assess until August 31, 2015. After benefiting from the extended period to assess, allowing it to submit documents to substantiate its position and postpone the issuance of assessment notices, petitioner now assails the validity of the Waivers, specifically the 4th, 5th, 6th, and 7th Waivers on the basis that Ms. Cecilia R. Patricio was acting as the authorized representative of Supplies Station, Inc. and not of SM Development Corporation. HCaDIS The Court finds that the doctrine of estoppel is applicable in this case. Upon examination of the contested Waivers, it is undisputed that in the Acknowledgement portion, Ms. Cecilia R. Patricio appeared before the notary public in her capacity as the authorized representative of Supplies Station, Inc. However, the Court finds it worthy to emphasize that this detail was supplied by petitioner. Hence, petitioner cannot now assail the validity of the said Waivers, as the defect was attributable to its own fault. On the part of the BIR, the same is also at fault when it failed to point out to petitioner the defect in the acknowledgment. Further, the validity of the Waivers was only raised by petitioner in its Petition for Review. It did not raise the issue at the earliest possible opportunity in its protest to the PAN and protest to the FLD/FAN. As a result, petitioner impliedly recognized the validity of the Waivers and the authority of its representative to execute them. In the case Commissioner of Internal Revenue vs. Transitions Optical Philippines, Inc. , 68 the Supreme Court held that the issue on the validity of the Waivers should be raised at the earliest possible opportunity. Otherwise, the taxpayer would impliedly recognize the Waivers' validity and its representatives' authority to execute them: " Estoppel similarly applies in this case . Indeed, the Bureau of Internal Revenue was at fault when it accepted respondent's Waivers despite their non-compliance with the requirements of RMO No. 20-90 and RDAO No. 05-01. aCIHcD Nonetheless, respondent's acts also show its implied admission of the validity of the waivers. First , respondent never raised the invalidity of the Waivers at the earliest opportunity, either in its Protest to the PAN, Protest to the FAN, or Supplemental Protest to the FAN. It thereby impliedly recognized these Waivers' validity and its representatives' authority to execute them. Respondent only raised the issue of these Waivers' validity in its Petition for Review filed with the Court of Tax Appeals . x x x xxx xxx xxx Second , respondent does not dispute petitioner's assertion that respondent repeatedly failed to comply with petitioner's notices, directing it to submit its books of accounts and related records for examination by the Bureau of Internal Revenue. Respondent also ignored the Bureau of Internal Revenue's request for an Informal Conference to discuss other 'discrepancies' found in the partial documents submitted. The Waivers were necessary to give respondent time to fully comply with the Bureau of Internal Revenue notices for audit examination and to respond to its Informal Conference request to discuss the discrepancies. Thus, having benefitted from the Waivers executed at its instance, respondent is estopped from claiming that they were invalid and that prescription had set in." (Emphasis supplied) Considering that both parties are at fault, the Court finds the Waivers valid and binding, thereby, extending the period to assess until August 31, 2015. 69 Since the FLD/FAN was issued on March 17, 2015, the tax assessment was issued well within the extended period to assess. AHCETa Though the Court has ruled that the Waivers executed by petitioner are valid, upon examination of the evidence presented, the following taxes have already prescribed as the 1st Waiver was only executed on April 25, 2012 and was accepted by respondent on May 3, 2012: Tax Type Period Due Date As Prescribed by Filing Date 3-Year Prescriptive Period VAT 1st Quarter 2009 04/27/2009 70 Section 4.114.1 (A) of Revenue Regulations (RR) No. 16-05, as amended by RR No. 04-07 04/22/2009 71 04/27/2012 WTC January 2009 2/13/2009 Section 7 of RR No. 09-01 as amended by RR No. 26-02 2/13/2009 72 2/13/2012 February 2009 3/13/2009 3/10/2009 73 3/13/2012 March 2009 4/13/2009 4/8/2009 74 4/13/2012 EWT January 2009 2/13/2009 2/12/2009 75 2/13/2012 February 2009 3/13/2009 3/10/2009 76 3/13/2012 March 2009 4/13/2009 4/8/2009 77 4/13/2012 However, petitioner failed to specify which portion of said deficiency tax assessments pertain to the prescribed quarter/months. In the absence of proof, the Court has no alternative but to consider the entire assessments as pertaining to the unprescribed portion of taxable year 2009. 78 cHaCAS Period to assess for FBT and DST is ten (10) years As regards the deficiency FBT and DST assessments, since the records are bereft of any evidence that petitioner filed FBT and DST returns for the subject period or for the subject transactions, the ten-year prescriptive period under Section 222 (a) of the NIRC of 1997 applies, reckoned from the discovery of the omission or failure to file returns, viz. : "SEC. 222. Exceptions as to Period of Limitation of Assessment and Collection of Taxes . ScHADI (a) In the case of a false or fraudulent return with intent to evade tax or of failure to file a return, the tax may be assessed , or a proceeding in court for the collection of such tax may be filed without assessment, at any time within ten (10) years after the discovery of the falsity, fraud or omission : Provided , That in a fraud assessment which has become final and executory, the fact of fraud shall be judicially taken cognizance of in the civil or criminal action for the collection thereof." (Emphasis supplied) Such being the case, the date of issuance of the Preliminary Assessment Notice (PAN) which was on July 10, 2014 79 shall be considered as the date of discovery of the omission. Considering that the FLD/FAN assessing petitioner for deficiency FBT and DST, among others, for taxable year 2009 was issued on March 17, 2015, 80 then the deficiency FBT and DST assessments were issued within the ten-year period to assess. Further, petitioner already settled the deficiency WTC, EWT, FBT, and DST on various dates after the issuance of the FDDA, with details shown below: 81 DACcIH Tax Type Payment Date Basic Tax Surcharge Interest Compromise Total Deficiency WTC 7/26/2016 645,273.49 - 842,568.07 20,000.00 1,507,841.56 Deficiency EWT 7/26/2016 399,987.81 - 522,285.46 16,000.00 938,273.27 1/12/2017 7,216,065.59 - 10,102,491.83 25,000.00 17,343,557.42 Total 7,616,053.40 - 10,624,777.29 41,000.00 18,281,830.69 Deficiency FBT 7/26/2016 1,498,580.71 374,645.18 1,956,776.89 25,000.00 3,855,002.78 Deficiency DST 1/12/2017 211,671.37 - 297,499.76 20,000.00 529,171.13 7/26/2016 5,454,454.00 1,363,613.50 7,152,059.41 50,000.00 14,020,126.91 Total 5,666,125.37 1,363,613.50 7,449,559.17 70,000.00 14,549,298.04 With the above payments, it can be surmised that petitioner already waived the defense of prescription insofar as the deficiency WTC and EWT assessments for the months of January to March 2009 are concerned. Withholding Tax is not imprescriptible Even though the Court has ruled that the period to assess has not yet prescribed when the tax assessment was issued, it is worthy to discuss the contention of respondent on the alleged imprescriptibility of the withholding tax. Respondent argues that the prescriptive period under Section 203 of the NIRC of 1997 is not applicable to withholding tax as it is not an internal revenue tax, but rather it is a penalty imposed against the withholding agent for failure to comply with the withholding tax provision, citing the case of National Development Company vs. Commissioner of Internal Revenue . 82 aICcHA Respondent's argument is misplaced. In the case of Commissioner of Internal Revenue vs. Systems Technology Institute, Inc. , 83 the Court of Tax Appeals En Banc made the following ruling: "Closer scrutiny of petitioner's cited case, NDC vs. CIR , will show that it dealt neither with prescription nor a tax assessment, but with a warrant of distraint and levy for failure to withhold tax on interest remitted to Japanese shipbuilders. Moreover, NDC vs. CIR was decided under a much older version of the NIRC, which was as amended by R.A. 2343 of June 20, 1959. More significantly, the CIR's key excerpt from NDC vs. CIR 'In effect, therefore, the imposition of the deficiency taxes on the NDC is a penalty for its failure to withhold the same from the Japanese shipbuilders.' is clearly obiter dictum . xxx xxx xxx As withholding agent of the Government who failed to withhold, Section 80 mandates that an employer shall be liable to pay the tax together with the penalties or additions to the tax otherwise applicable in respect to such failure to withhold and remit. As agent of the taxpayer, the withholding agent is responsible for filing the necessary withholding tax return and remittance of the tax withheld. This dual role of a withholding agent is sui generis . Petitioner is splitting hairs when it seeks remedies under the umbrella of one role to the exclusion of the other. The deficiency payment the Government seeks is an internal revenue tax. As such, as with any taxpayer, Section 203 applies. The Government must issue an assessment in an effort to collect the tax within three (3) years after the last day prescribed by law for filing of the return, or in cases where the return is filed beyond the period prescribed by law, from the day the return was filed. The rationale for this is further explained in Bank of the Philippine Islands vs. Commissioner of Internal Revenue , which states that 'The statute of limitations on assessment and collection of taxes is for the protection of the taxpayer and, thus, shall be construed liberally in his favor.' HSCATc Section 203 was instituted to benefit the taxpayer, the principal of the withholding agent. This Court sees no reason why a rule that applies to the principal should not apply to the agent as well. xxx xxx xxx It is noteworthy that Sec. 223 uses the clause 'any deficiency,' rather than 'any tax deficiency.' 'Any deficiency' is broad enough to encompass deficiency EWT, even if the deficiency is in the process of withholding by the agent rather than in the amount withheld from the taxpayer . The legal maxim that 'when the law does not distinguish, neither should the court,' applies in this case. However, it can also readily be seen that Sec. 223 applies to the assessment of 'any deficiency,' rather than a penalty , which the petitioner considers deficiency EWT to be." (Emphasis supplied) In view of the afore-quoted case, since withholding tax is covered under "any deficiency," the said tax is subject to prescription under Section 203 of the NIRC of 1997. EHaASD Determination of whether or not the assessment has factual and legal bases The Court shall now proceed to resolve the issue on the propriety of the assessments issued by respondent against petitioner. I. Deficiency Expanded Withholding Tax P17,506,411.73 II. Deficiency Fringe Benefits Tax P3,834,474.28 Respondent's verification disclosed that petitioner failed to remit in full the expanded withholding tax on the latter's income payments in violation of various provisions of RR No. 02-98, as amended. 84 Hence, respondent assessed petitioner of deficiency EWT in the amount of P17,506,411.73, computed as follows: 85 Basic tax due P7,616,053.41 Add: 20% interest p.a. (Sec. 248, NIRC) (01/16/10-06/30/16) P9,840,358.32 Compromise penalty (RMO No. 19-2007) 50,000.00 9,890,358.32 Total amount due P17,506,411.73 On the other hand, respondent found that petitioner's payment of allowances to executives and managers was not subjected to fringe benefits tax pursuant to Section 33 86 of the NIRC of 1997, as implemented by RR No. 03-98, 87 as amended. 88 Thus, respondent assessed petitioner of deficiency FBT in the amount of P3,834,474.28, computed as follows: 89 IDTSEH Fringe benefits P3,184,484.00 Monetary value P3,184,484.00 Divide by 68% Grossed-up monetary value P4,683,064.71 Multiply by rate 32% Basic tax due P1,498,580.71 Add: Surcharge P374,645.18 20% Interest p.a. (Sec. 248, NIRC) (01/16/10-06/30/16) 1,936,248.39 Compromise penalty (RMO 19-2007) 25,000.00 2,335,893.57 Total Amount Due P3,834,474.28 As mentioned earlier, petitioner already settled both the deficiency EWT and FBT on the following dates as evidenced by BIR Form No. 0605, with details of payment as follows: DaIAcC EWT 90 FBT 91 Basic tax P7,616,053.40 P1,498,580.71 Surcharge - 374,645.18 Interest (computed up to July 26, 2016) 522,285.46 1,956,776.89 Interest (computed up to January 12, 2017) 10,102,491.83 - Subtotal P18,240,830.69 P3,830,002.78 Compromise 41,000.00 25,000.00 Total P18,281,830.69 P3,855,002.78 However, the foregoing do not represent full payment of the deficiency taxes due. Pursuant to Sections 248 (A) (3), 92 249 (B) and (C) 93 of the NIRC of 1997, petitioner is still liable to pay the corresponding 25% surcharge for the deficiency EWT and delinquency interest for both deficiency EWT and FBT. SICDAa III. Deficiency Withholding Tax on Compensation P5,742,045.50 Respondent found that the discrepancy between the amount of salaries and wages reflected per petitioner's books and that of petitioner's Alphalist amounting to P10,858,895.61 was not subjected to WTC per Revenue Regulations No. 02-98. 94 Thus, respondent computed the withholding tax due of P2,494,288.32 using the composite rate of 22.97% which was arrived at after factoring the tax due per Alphalist of P17,114,673.09 divided by the total taxable salaries of P74,504,065.87 also per Alphalist, citing as basis thereof CTA Case No. 6195, Jardine Pacific Finance, Inc. vs. Commissioner of Internal Revenue . Further, respondent invokes Section 80 (A) 95 of the NIRC of 1997. 96 A detailed computation of respondent's assessment is shown below: 97 Salaries and wages per ITR P97,528,452.00 Less: Salaries exempt from withholding tax on compensation Retirement cost P3,248,923.44 Employee benefits 2,400,486.11 SSS, PhilHealth and HDMF contributions 2,145,994.67 7,795,404.22 Taxable salaries and wages P89,733,047.78 Salaries and wages per returns Sched. 7.1 Taxable P3,302,407.11 Non taxable 230,745.26 P3,533,152.37 Sched. 7.3 Taxable P69,779,626.74 Non taxable 4,064,211.65 73,843,838.39 Sched. 7.3 Taxable P1,422,032.02 Non taxable 75,129.39 1,497,161.41 78,874,152.17 Discrepancy P10,858,895.61 x Composite rate Tax due Taxable compensation 22.97% Basic WTC Tax Still Due P2,494,288.32 Add: 20% Interest p.a. (Sec. 248, NIRC) (1/16/2010-06/30/16) P3,222,757.18 Compromise Penalty (RMO 19-2007) 25,000.00 3,247,757.18 Total Amount Due P5,742,045.50 Petitioner paid a portion of the assessment based on its own re-computation of the deficiency WTC as follows: 98 TAacHE Salaries and wages per ITR P97,528,452.00 Less: Adjustments Retirement cost P4,579,292.00 Mandatory contributions 2,145,994.67 6,725,286.67 Taxable salaries and wages P90,803,165.33 Salaries and wages per return 78,874,152.17 Salaries and wages not subjected to WTC P11,929,013.16 Less: Reconciling items a) Expenses subjected to 2% EWT P2,349,597.76 b) Services from GPPs 2,425,688.36 c) Salaries to employees in Italy 4,270,908.26 d) De minimis 14,212.50 e) Others 59,405.17 9,119,812.05 Salaries and wages not subjected to WTC P2,809,201.11 Multiplied by: Composite rate 22.97% Deficiency withholding tax P645,273.49 Based on the foregoing re-computation, petitioner admitted its deficiency WTC liability on salaries and wages of only P2,809,201.11, and indicated the following adjustments and reconciling items as not subject to WTC: (a) retirement cost of P4,579,292.00; (b) mandatory contributions of P2,145,994.67; (c) expenses subject to 2% EWT of P2,349,597.76; (d) Services from GPPs of P2,425,688.36, (e) salaries to employees in Italy of P4,270,908.26, and (f) de minimis of P14,212.50. The Court partially upholds the assessment. DHIcET First, petitioner did not present the general ledger of its Salaries and Wages account to prove that the reconciling items presented are indeed included as part of Salaries and Wages. Second, the Court examined the merits of each adjustment and reconciling item made by respondent and/or petitioner. Retirement cost P4,579,292.00 . The ICPA noted that per petitioner's Audited Financial Statements (AFS), Note 21, page 30, petitioner's pension contribution for the year amounted to P7,828,215.00. Its net pension expense for the year amounted to P3,248,923.00. Thus, there remains an amount of P4,579,292.00 in the Salaries and Allowances account pertaining to pension contribution. Since the BIR did not impose a withholding tax on pension contribution as can be shown in BIR's computation, the ICPA recommended that this amount should be allowed as an adjustment. 99 The Court agrees with the ICPA. In petitioner's 2009 Audited Financial Statements, the total salaries and wages amounted to P92,949,160.00. However, petitioner claimed a higher deduction for salaries and wages amounting to P97,528,452.00 in its 2009 Annual Income Tax Return (AITR). The difference amounted to P4,579,292.00, which was claimed as an additional deduction for income tax purposes as reflected in the Reconciliation of Net Income per Books against Taxable Income in petitioner's 2009 AITR, 100 is computed below: HDICSa Salaries and wages per AFS 101 P92,949,160.00 Salaries and wages per ITR 102 97,528,452.00 Difference P4,579,292.00 The said amount can be accounted for as the difference between the pension contribution during 2009 amounting to P7,828,215.00 and the pension expense amounting to P3,248,923.00. 103 Only the pension expense amounting to P3,248,923.00 was included in the Salaries and Wages account in petitioner's 2009 AFS. Hence, it claimed the difference of P4,579,292.00 as an additional deduction for income tax purposes as explained above. Effectively, petitioner claimed the total pension contribution of P7,828,215.00 as a deduction for income tax purposes. Indeed, petitioner is entitled to claim as deduction the pension contributions during the year as provided in Section 34 (J) of the NIRC of 1997, to wit: "SEC. 34. Deductions from Gross Income . x x x HcDSaT xxx xxx xxx (J) Pension Trusts . An employer establishing or maintaining a pension trust to provide for the payment of reasonable pensions to his employees shall be allowed as a deduction (in addition to the contributions to such trust during the taxable year to cover the pension liability accruing during the year, allowed as a deduction under Subsection (A)(1) of this Section) a reasonable amount transferred or paid into such trust during the taxable year in excess of such contributions, but only if such amount (1) has not theretofore been allowed as a deduction, and (2) is apportioned in equal parts over a period of ten (10) consecutive years beginning with the year in which the transfer or payment is made." (Emphasis supplied) Since it was the entire pension contribution of P7,828,215.00 that was claimed as deduction in the AITR and the same did not form part of the salaries and wages per Alphalist, it is but proper to remove the amount of P7,828,215.00 from the salaries and wages per ITR in respondent's assessment computation, and not merely the pension expense of P3,248,923.00 or the reconciling item of P4,579,292.00. Employee benefits P2,400,486.11 . This amount was removed by respondent from the P97,528,452.00 salaries and wages per ITR for purposes of comparing it with the salaries and wages per alphalist. However, such removal is erroneous because the salaries and wages per alphalist included both taxable and nontaxable employees' compensation and benefits. Mandatory contributions P2,145,994.67 . Petitioner and respondent erroneously removed this amount from the salaries and wages per ITR. Said amount is a separate Line Item No. 100 in the 2009 AITR as SSS, GSIS, PhilHealth, HDMF and Other Contributions in Section 7, Schedule of Itemized Deductions. 104 Thus, said amount is not included in the P97,528,452.00 Salaries and Wages per 2009 AITR under Line Item No. 82 of the same Schedule 7. IDaEHC Since the amount of mandatory contributions amounting to P2,145,994.67 is not included in the salaries and wages per ITR amounting to P97,528,452.00, the former cannot be removed from the latter in computing the assessment. With regard to the following reconciling items, the ICPA noted the following findings: 105 Expenses subjected to 2% EWT P2,349,597.76 . This pertains to share of petitioner in the computer services, as well as the services of a manpower service provider. Supporting documents to prove that these expenses were incurred and paid not to employees but to suppliers but charged under the salaries and allowances account were presented as Exhibits P-70913 to P-70963 and the details thereof were summarized in Annexes DD to FF of the ICPA report. Services from GPPs P2,425,688.36 . This pertains to the retainer services of an accounting firm. The documents in support thereof were presented as Exhibits P-70964 to P-70983; P-71042 to P-71052 and summarized in Annex GG of the ICPA report. Salaries to employees in Italy P4,270,908.26 . These were payments of salaries to persons who worked in Italy which are not subject to withholding tax because employment was exercised abroad. Proof of payment to these persons were shown as Exhibits P-70984 to P-71018 and summarized in Annex HH of the ICPA report. ASTcaE De minimis P14,212.50 . This pertains to uniforms given to employees which are not subject to WTC. Proof of provision of uniforms to employees were presented as Exhibits P-71019 to P-71025 and summarized in Annex II of the ICPA report. Others P59,405.17 . This pertain to payments to BPO services. Proof of payments were presented as Exhibits P-71026 to P-71028 and the details thereof were presented in Annex JJ of the ICPA report. 106 The Court sustains the assessment on these items. First, petitioner did not explain why the expenses subjected to 2% EWT, services from GPPs, and others were lodged under the salaries and allowances account since payments made pursuant to these transactions are not in the nature of compensation to employees. Second, petitioner did not present the salaries and allowances general ledger to prove that the above expenditures were indeed included in the salaries and allowances. Finally, save for the amount of P94,431.39 107 representing payment for computer services, the pieces of evidence presented by petitioner to support the expenses subjected to 2% EWT, salaries to employees in Italy, de minimis , and others were merely screenshots of journal entries (JEs) in petitioner's accounting system. These JEs merely prove how the transactions were entered in petitioner's books but do not in any way prove the existence or occurrence of the transaction. Absent the source documents to support the JEs, the Court cannot ascertain the nature of the transactions involved to properly assess their tax implications. DTCSHA As for the services from the general professional partnership (GPP), petitioner presented the official receipts (ORs) and Statement of Accounts (SOA) issued by Diaz Murillo Dalupan and Company (Certified Public Accountants). However, petitioner failed to present the Articles of Partnership (Articles) of the alleged GPP to prove that it was indeed formed and organized for the purpose of practicing a profession. The Articles ultimately prove the status of an entity as a GPP to be exempted from income tax, and consequently, withholding taxes. The ORs and SOAs are merely corroborative to support the amount of transactions with such GPP for a particular period. Considering the foregoing, petitioner is liable for basic deficiency WTC in the reduced amount of P2,486,751.69 as computed below: cDSAEI Salaries and wages per ITR P97,528,452.00 Less: Salaries exempt from withholding tax on compensation Pension contribution P7,828,215.00 Employee benefits - SSS, PhilHealth and HDMF contributions - 7,828,215.00 Taxable salaries and wages P89,700,237.00 Salaries and wages per returns Sched. 7.1 P3,533,152.37 Sched. 7.3 73,843,838.39 Sched. 7.3 1,497,161.41 78,874,152.17 Discrepancy P10,826,084.83 x Composite rate 22.97% Basic Deficiency WTC P2,486,751.69 IV. Deficiency Income Tax P1,813,900,422.46 Respondent's computation of the deficiency income tax assessment is reproduced hereunder: 108 CScTED Taxable income per return P575,145,486.00 Add: Discrepancies per audit Unreported gross profit on undeclared sales (Sch. 1) P2,164,465,567.65 Disallowed expenses due to non-withholding (Sch. 2) 513,571,489.48 Disallowed per allocation of expense (Sch. 3, Annex A.3) 17,847,804.00 2,695,884,861.13 Adjusted taxable income P3,271,030,347.13 Income tax due P981,309,104.14 Less: Tax paid/Tax credits Tax paid P87,892,038.80 Current year's creditable withholding tax 84,651,607.00 Total tax paid/tax credits 172,543,645.80 Less: Carried over to succeeding period Disallowed prior year's CWT Disallowed unsubstantiated CWT - 172,543,645.80 Basic tax due P808,765,458.34 Add: 20% interest p.a. (Sec. 248, NIRC) (04/16/10-06/30/16) P1,005,084,964.12 Compromise penalty (RMO 19-2007) 50,000.00 1,005,134,964.12 Total amount due P1,813,900,422.46 To determine whether or not the assessment is sustainable, it is necessary to determine the propriety of the following items comprising the assessment: EDCcaS A. Unreported gross profit on undeclared sales P2,164,465,567.65 B. Disallowed expenses due to non-withholding 513,571,489.48 C. Disallowed per allocation of expense 17,847,804.00 A. Unreported gross profit on undeclared sales P2,164,465,567.65 Undeclared sales (Deficiency VAT) P447,351,295.21 Respondent's verification disclosed that various sales of real property during the year with initial payments of more than 25%, deferred sales, were not reported for the purpose of computation of income tax due, in violation of Section 49 (B) of the NIRC of 1997. Further, respondent's verification disclosed that for 2009, petitioner's collections on taxable cash, deferred, and installment sales of all its projects amounted to P1,654,202,025.28, while the VAT returns filed reflected P1,206,850,730.07 only. Allegedly, as a result, petitioner failed to include in its return the sale of real property amounting to P447,351,295.21 pursuant to Section 4.106-3 of RR No. 16-05, as amended. 109 As a result, respondent derived the assessed amounts from the following computation: 110 cDCEIA Taxable Sales Sea Residences P1,008,764,647.56 Breeze 125,163,292.00 Field Residences 18,407,319.82 Field Residences Bldg. 2 399,656.23 Grass Residences 319,523,153.12 Grass Residences Tower 3 96,197,828.76 Mezza Residences Tower 1 128,068,646.54 Mezza Residences Tower 2 85,983,238.46 Mezza Residences Towers 1 & 2 10,559,373.55 Mezza Residences Tower 3 24,512,722.31 Mezza Residences Tower 4 33,614,636.59 Princeton 1,511,753.38 Total taxable sales per audit P1,852,706,268.32 Less: VAT 198,504,243.03 Taxable sales per audit P1,654,202,025.28 Taxable sales per VAT return 1,206,850,730.07 Undeclared sales P447,351,295.21 VATable sales P1,654,202,025.28 Exempt sales 6,821,443,653.66 Total sales P8,475,645,678.94 Per IT return 3,966,342,413.00 Difference P4,509,303,265.94 Gross profit rate 48% Unreported gross profit on undeclared sales P2,164,465,567.65 Since the two assessment items, namely, the P447,351,295.21 undeclared sales (included in the deficiency VAT assessment) and the P2,164,465,567.65 unreported gross profit on undeclared sales (included in the deficiency income tax assessment), came from the same computation, these shall be discussed simultaneously. ISHaCD In the Judicial Affidavit of petitioner's Assistant Vice-President for Accounting and Controllership, Ms. Gemma L. Mangaliman, she explained that: 111 "The alleged undeclared sales of the Company of P4,509,303,265.94 lacks basis as shown in the computation below: Total sales per VAT Return 8,475,645,678.95 Less: Sales per ITR 3,966,342,413.00 Difference 4,509,303,265.95 Erroneous inclusion of SM Synergy's VAT Exempt Collections from its project in VAT Return of SMDC (35,539,600.00) Erroneous recording of VAT Exempt Installment sales as VAT Exempt Deferred sales (5,107,125,305.38) Sales which were included in the ITR but were excluded in the VAT Returns 1,583,035,021.96 VAT Exempt Sales included in the VAT Return but excluded in the ITR (117,676,919.60) Cancelled sales (28,151,693.09) VAT component for VATable sales 198,504,243.03 VAT Exempt Sales erroneously included in the BIR's computation (705,617,339.46) Cost of Sales erroneously included in the BIR's computation (97,202,256.71) VAT component erroneously included in the BIR's computation (98,410,712.39) Other charges erroneously included in the BIR's computation (30,317,819.27) Erroneous treatment by the BIR of the current year deferred sale as installment sale 78,351,577.53 Erroneous treatment by the BIR of the deferred sale from prior years as installment sale (26,676,910.48) Failure to include by the BIR of installment sales 860,146.31 Erroneous treatment by the BIR of the installment sales as deferred sales for the current year (118,236,489.22) Erroneous treatment by the BIR of the installment sales as deferred sales for the prior year 24,253,874.14 Difference in ITR and VAT return recognized in succeeding years (41,333,609.63) (4,521,283,792.27) Remaining balance (11,980,526.32) Erroneous inclusion of SM Synergy's VAT Exempt Collections from its project in the VAT return of SMDC SMDC mistakenly included in its VAT returns filed with the BIR the VAT exempt sales of SM Synergy from the latter's projects in the total amount of P35,539,600.00. Thus, this should be excluded from the computation of the discrepancy between the Sales per VAT returns and Sales per ITR since such sales are not the sales of SMDC. DHESca Erroneous recording of VAT Exempt Installment sales as VAT Exempt Deferred Sales SMDC's sales amounting to P5,107,125,305.38 were erroneously recorded as VAT Exempt deferred sales instead of VAT Exempt Installment sales. Thus, the sales per VAT return is overstated by P5,107,125,305.38 since the contract price of the sales was recorded during the year of sale instead of recording only the instalment collections as sales for the year. Sales which were included in the ITR but were excluded in the VAT returns Collections amounting to P1,583,035,021.96 were included as part of the sales per ITR. However, such collections were not reported as part of the sales per VAT return. Nevertheless, such sales are VAT exempt. And thus, there should be no deficiency for VAT. VAT Exempt Sales Included in the VA T return but excluded in the ITR Sales amounting to P117,676,919.60 were reported as VAT exempt sales in the VAT return but were not included in the ITR. Notwithstanding, such sales should not be subject to regular corporate tax since the same are under the Income Tax Holiday. cDTACE Cancelled Sales The difference in the sales per ITR and sales per VAT return amounting to P28,151,693.09 is due to the cancellation of the sales. Sales during the year and from prior years were eventually cancelled in succeeding periods. Thus, such sales should be removed from the discrepancy since the amount recognized in either the VAT return or ITR were reversed during the year of cancellation. Erroneous inclusion of the VAT Component, VAT exempt sales, cost of sales and other charges in the BIR computation The BIR came up with his own computation of the Company's VATable sales. However, the BIR included VAT exempt sales, cost of sales and other charges. Thus, we recomputed the same by adding back the VAT component per the computation by the BIR, viz. : TEHIaD VATable sales per audit 1,654,202,025.29 VAT component 198,504,243.03 Gross receipts subject to VAT 1,852,706,268.32 The BIR should not have included VAT exempt sales, cost of sales and other charges amounting to P705,617,339.46, P97,202,256.71 and P30,317,819.27, respectively, in order to arrive at the total VATable sales. Nevertheless, the gross receipts subject to VAT amounting to P1,852,706,268.32 is gross of VAT. Thus, we deducted the actual VAT of the VATable sales in the amount of P98,410,712.39 to compute for the Net VATable sales and subsequently, to compare the same with the VATable sales reported in the VAT return. Erroneous treatment by the BIR of the current year deferred sale as installment sale The BIR also classified sales amounting to P78,351,577.53 as installment and thus, included the collection for the current year in the computation of VATable sales. However, the whole contract price of such sale should be treated as current year deferred sale since the initial payments thereof in the year of sale exceed 25% of the gross selling price. Erroneous treatment by the BIR of the deferred sale from prior years as installment sale The discrepancy also arose due to the erroneous inclusion in the BIR computation of the installment collections amounting to P26,676,910.48 as sales during the year although the same is a deferred sale from prior years. Thus, the whole contract price was already subjected to VAT and income tax during the year of sale ( i.e. , prior year). cCHITA Failure to include by the BIR of installment sales The BIR failed to include in his computation of VATable sales units that are under installment payment amounting to P860,146.31. Thus, said amount should be added back. Erroneous treatment by the BIR of the installment sales as deferred sales for the current year The BIR also classified sales in the amount of P118,236,489.22 as current year deferred and thus, included the whole contract price in the computation of the VATable sales. However, as per the Buyer Subsidiary Ledger of the Company, such sales are on installment payment scheme since initial payments during the year of sale did not exceed 25% of the gross selling price. DETACa Erroneous treatment by the BIR of the installment sales as deferred sales for the prior year The VATable sales in the FDDA are understated as to the amount of the collections in the current year since the BIR classified sales amounting to P24,253,874.14 as prior year deferred sales. However, based on the Buyer's Subsidiary Ledger, such sales are under installment because the collection on the year of sales ( i.e. , prior year) did not exceed 25% of the contract price. Difference in ITR and VAT return recognized in succeeding years Difference in the sales per ITR and VAT return amounting to P41,333,609.63 were recognized in the succeeding years. There were sales in the ITR which were not reported in the VAT return for the current taxable year but were subsequently reported in the VAT return in the succeeding years. Conversely, there were sales in the VAT return for the current taxable year which were not part of the ITR but were eventually reported as sales in the ITR for the succeeding period." 112 The Court finds the inclusion of these assessment items improper for lack of factual and legal bases. Section 49 (B) of the NIRC of 1997 provides for the taxation of income on installment basis, to wit: "SEC. 49. Installment Basis . xxx xxx xxx (B) Sales of Realty and Casual Sales of Personality . In the case (1) of a casual sale or other casual disposition of personal property (other than property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year), for a price exceeding One thousand pesos (P1,000), or (2) of a sale or other disposition of real property, if in either case the initial payments do not exceed twenty-five percent (25%) of the selling price, the income may, under rules and regulations prescribed by the Secretary of Finance, upon recommendation of the Commissioner, be returned on the basis and in the manner above prescribed in this Section. As used in this Section, the term 'initial payments' means the payments received in cash or property other than evidences of indebtedness of the purchaser during the taxable period in which the sale or other disposition is made." CScaDH The above provision which was formerly Section 43 (b) of Commonwealth Act No. 466 (Old Tax Code) has not been amended since then and is implemented by Sections 175 to 177 of RR No. 02-40, 113 the relevant provisions of which are as follows: "SECTION 175. Sale of Real Property Involving Deferred Payments . Under Section 43 deferred-payment sales of real property include (a) agreements to purchase and sale which contemplate that a conveyance is not to be made at the outset, but only after all or a substantial portion of the selling price has been paid, and (b) sales in which there is an immediate transfer of title, the vendor being protected by a mortgage or other lien as to deferred payments. Such sales either under (a) or (b), fall into two classes when considered with respect to the terms of sale, as follows: (1) Sales of property on the installment plan , that is, sales in which the payments received in cash or property other than evidences of indebtedness of the purchaser during the taxable year in which the sale is made do not exceed 25 per cent of the selling price . TaDCEc (2) Deferred-payment sales not on the installment plan , that is, sales in which the payments received in cash or property other than evidences of indebtedness of the purchaser during the taxable year in which the sale is made exceed 25 per cent of the selling price . In the sale of mortgaged property the amount of the mortgage, whether the property is merely taken subject to the mortgage or whether the mortgage is assumed by the purchaser, shall be included as a part of the 'selling price' but the amount of the mortgage, to the extent that it does not exceed the basis to the vendor of the property sold , shall not be considered as a part of the 'initial payments' or of the 'total contract price,' as those terms are used in Section 43 of the Code, in Sections 174 and 176 of these regulations, and in this section. The term "initial payments" does not include amounts received by the vendor in the year of sale from the disposition to a third person of notes given by the vendee as part of the purchase price which are due and payable in subsequent years. Commissions and other selling expenses paid or incurred by the vendor are not to be deducted or taken into account in determining the amount of the 'initial payments,' the 'total contract price,' or 'the selling price.' The term 'initial payments' contemplates at least one other payment in addition to the initial payment. If the entire purchase price is to be paid in a lump sum in a later year, there being no payment during the first year, the income may not be returned on the installment basis. Income may not be returned on the installment basis where no payment in cash or property, other than evidences of indebtedness of the purchaser, is received during the first year, the purchaser having promised to make two or more payments, in later years. aHSTID SECTION 176. Sale of Real Property on Installment Plan . In transactions included in class (1) in the preceding section the vendor may return as income from such transactions in any taxable year that proportion of the installment payments actually received in that year which the total profit realized or to be realized when the property is paid for bears to the total contract price . xxx xxx xxx If the vendor chooses as a matter of consistent practice to turn the income from installment sales on the straight accrual or cash receipts and disbursements basis, such a course is permissible, and the sales will be treated as deferred-payment sales not on the installment plan. cDEHIC SECTION 177. Deferred-Payment Sale of Real Property Not on Installment Plan . In transactions included in class (2) in Section 175 of these regulations, the obligations of the purchaser received by the vendor are to be considered as the equivalent of cash ." (Emphasis supplied) From the foregoing, there are two types of sales of real estate on installment basis, namely: (1) Sales of property on the installment plan , that is, sales in which the payments received in cash or property other than evidences of indebtedness of the purchaser during the taxable year in which the sale is made do not exceed 25 per cent of the selling price. (2) Deferred-payment sales not on the installment plan , that is, sales in which the payments received in cash or property other than evidences of indebtedness of the purchaser during the taxable year in which the sale is made exceed 25 per cent of the selling price. For income tax purposes, the taxpayer selling real estate on installment plan may return as income from such transactions in any taxable year that proportion of the installment payments actually received in that year, which the total profit realized or to be realized when the property is paid for bears to the total contract price. Whereas for sale of real property not on installment plan, the whole selling price must already be declared as income during the taxable year, being equivalent to cash. Conversely stated, for sales of real property where the initial payments during the year of sale did not exceed 25% of the total selling price, the seller is required to declare as income only the payments received during the taxable year and not the whole selling price. Whereas if the initial payments during the year of sale exceeded 25% of the total selling price, the seller is already required to declare the whole selling price as gross income in its tax returns in the same year of sale. The latter is treated the same way as a cash sale. CDHaET The same approach is adopted for VAT purposes as elaborated and implemented in Sections 4.106-3 and 4.106-4 of RR No. 16-05, as amended by RR No. 04-07, the relevant provisions of which state: "SEC. 4.106-3. Sale of Real Properties . Sale of real properties held primarily for sale to customers or held for lease in the ordinary course of trade or business of the seller shall be subject to VAT. xxx xxx xxx Sale of real property on installment plan means sale of real property by a real estate dealer, the initial payments of which in the year of sale do not exceed twenty-five (25%) of the gross selling price. In case of installment sale, the seller shall be subject to output VAT on the installment payments received , including the interests and penalties for late payment, actually and/or constructively received, subject to the provisions of Sec. 4.106-4 hereof . Correspondingly, the buyer of the property can claim the input tax in the same period as the seller recognized the output tax. ISCDEA Installment payments, including interests and penalties, actually and/or constructively received starting February 1, 2006 shall be subject to twelve percent (12%) output VAT. Sale of real property by a real estate dealer on a deferred payment basis not on the installment plan means sale of real property, the initial payments of which in the year of sale exceed twenty-five percent (25%) of the gross selling price. 'Initial payments' means payment or payments which the seller receives before or upon execution of the instrument of sale and payments which he expects or is scheduled to receive in cash or property (other than evidence of indebtedness of the purchaser) during the taxable year when the sale or disposition of the real property was made. It covers any down payment made and includes all payments actually or constructively received during the year of sale, the aggregate of which determines the limit set by law. Initial payments do not include the amount of mortgage on the real property sold except when such mortgage exceeds the cost or other basis of the property to the seller, in which case the excess shall be considered part of the initial payments. Also excluded from the initial payments are notes or other evidence of indebtedness issued by the purchaser to the seller at the time of the sale. In the case of sale of real properties on a deferred-payment basis not on the installment plan, the transaction shall be treated as cash sale which makes the entire selling price taxable in the month of sale. Output tax shall be recognized by the seller and input tax shall accrue to the buyer at the time of the execution of the instrument of sale. TaCEHA Payments subsequent to 'initial payments' shall no longer be subject to output VAT, in the case of sale on a deferred payment basis. xxx xxx xxx SEC. 4.106-4. Meaning of the Term 'Gross Selling Price' . The term 'gross selling price' means the total amount of money or its equivalent which the purchaser pays or is obligated to pay to the seller in consideration of the sale, barter or exchange of the goods or properties, excluding VAT. The excise tax, if any, on such goods or properties shall form part of the gross selling price. acHTIC xxx xxx xxx If the sale of real property is on installment plan where the zonal value/fair market value is higher than the consideration/selling price, exclusive of the VAT, the VAT shall be based on the ratio of actual collection of the consideration, exclusive of the VAT, against the agreed consideration, exclusive of the VAT, appearing in the Contract to Sell/Contract of Sale applied to the zonal value/fair market value of the property at the time of the execution of the Contract to Sell/Contract of Sale at the inception of the contract. Thus, since the output VAT is based on the market value of the property which is higher than the consideration/selling price in the sales document, exclusive of the VAT, the input VAT that can be claimed by the buyer shall be the separately-billed output VAT in the sales document issued by the seller. Therefore, the output VAT which is based on the market value must be billed separately by the seller in the sales document with specific mention that the VAT billed separately is based on the market value of the property." (Emphases supplied) Conversely stated, for sales of real property where the initial payments during the year of sale did not exceed 25% of the gross selling price, the seller is required to pay output VAT corresponding only to the payments received during the taxable quarter and not the output VAT corresponding to the whole gross selling price. Whereas if the initial payments during the year of sale exceeded 25% of the gross selling price, the seller is already required to subject the whole gross selling price to output VAT in the quarter when the sale was made and payment of the balance of the gross selling price in the subsequent quarters therefrom is no longer subject to output VAT. EDCTIa Given that installment sales are treated in the same manner for both income tax and VAT purposes, it is thus expected that the gross income declared in the income tax returns is equal to the gross selling price declared in the VAT returns during the taxable year. In addition, petitioner enjoys two types of tax exemptions: 1. Income tax holiday (ITH) granted by the Board of Investments (BOI) for specific projects as hereunder summarized, for the sale of residential units where the selling price of each does not exceed P3 Million; and, 2. VAT exemption on sales of residential dwellings with selling price not exceeding P2.5 Million as provided in Section 109 (P) of the NIRC of 1997, as implemented by Section 4.109-1 (B) (1) (p) (4) of RR No. 16-05. Based on the certifications issued by the BOI, only the following projects of petitioner are covered by ITH and their respective effectivity dates: ADCIca Housing Project BOI Certificate of Registration Date of Registration Effectivity of ITH Exhibit No. Sea Residences 2008-222 August 14, 2008 four (4) years from December 2008 or actual start of commercial operations/selling, whichever is earlier but in no case earlier than the date of registration P-71030 Berkeley Residences 2008-170 July 24, 2008 P-71031 Field Residences 2008-221 August 14, 2008 P-71032 Grass Residences 2008-168 July 23, 2008 P-71033 Mezza Residences 2008-169 July 23, 2008 three (3) years from July 2008 or actual start of commercial operations/selling, whichever is earlier but in no case earlier than the date of registration P-71034 Accordingly, for income tax purposes, the earliest period when petitioner may enjoy ITH incentives for sale of units with selling price not exceeding P3.0 Million begins (1) on July 23, 2008 as for the sales of real estate units from Grass Residences and Mezza Residences, (2) on July 24, 2008 for sales from Berkeley Residences, and (3) on August 14, 2008 for sales from Sea Residences and Field Residences. Prior to these dates, petitioner is not entitled to any tax exemption. However, for VAT purposes, petitioner's sales of residential dwellings not exceeding P2.5 Million per unit is entitled to VAT exemption from the date of effectivity of RR No. 16-05, providing guidelines for the exemption, which was on November 1, 2005. ScaCEH Based on the evidence presented, the gross income declared by petitioner in its 2009 AITR amounted to P3,966,342,413.00. However, the gross sales declared by petitioner in its 2009 Amended Quarterly VAT Returns amounted to P8,075,077,592.08. As a result, there arose a difference amounting to P4,108,735,179.08, which is computed as follows: Exempt Sales Taxable Sales Total 2009 AITR (Line 17) 114 P1,859,596,273.00 P2,106,746,140.00 P3,966,342,413.00 2009 Amended Quarterly VAT Returns (Lines 15 and 18) 115 6,821,443,653.56 1,253,633,938.52 8,075,077,592.08 Difference P(4,961,847,380.56) P853,112,201.48 P(4,108,735,179.08) It must be noted, however, that the total taxable sales from real estate in the Amended Quarterly VAT Returns as found by the ICPA only amounted to P883,185,456.75. The difference allegedly pertains to Other Income amounting to P370,448,481.51. 116 As petitioner failed to submit its Summary List of Sales (SLS) for taxable year 2009, the Court cannot verify whether or not there were items in Other Income declared as VATable sales. Thus, the whole amount of VATable sales in the 2009 Amended Quarterly VAT Returns amounting to P1,253,633,938.52 shall be considered as pertaining to sales from real estate. ACTIHa As found by the ICPA in his audit, majority of the difference between the gross income per AITR and gross sales per VAT returns was due to petitioner's declaration of the whole gross selling price for VAT exempt transactions in the VAT returns even if the initial payments did not exceed 25% during 2009. In contrast, the gross income per ITR only reported the payments received during 2009 for tax-exempt sales of real estate with initial payments not exceeding 25% of the selling price. The Court finds petitioner's manner of reporting the VAT exempt sales erroneous. The guidelines provided in Sections 4.106-3 and 4.106-4 of RR No. 16-05, as amended by RR No. 04-07, did not make any qualification as to which type of sale shall the VAT reporting guidelines apply. The reporting guidelines for sale of real property on installment basis as provided in the RR is thus applicable to all types of sales, even to those which are VAT exempt. Further, there is nothing in the RR which specifies that VAT exempt sales of real property with initial payments not exceeding 25% of the gross selling price shall nevertheless be reported at 100% gross selling price during the quarter when the sale was made. On this point, it was erroneous for respondent to make a straightforward comparison between the sales per VAT returns and gross income per AITR without considering the error made by petitioner in reporting VAT exempt sales. TIEHDC Nevertheless, petitioner's error in reporting VAT exempt sales will be set aside for purposes of computing whether or not there were indeed undeclared sales subject to deficiency VAT. To correct the amounts which should have been reported by petitioner in its VAT returns would result in a lower amount of sales and eventually lead to cancellation of the assessment since petitioner obviously overstated its sales. With this, the objective of determining whether or not there were undeclared sales subject to deficiency VAT assessment would be defeated. As such, separate computations for the purpose of determining undeclared sales subject to deficiency income tax and deficiency VAT. Petitioner's total selling price of real estate sales from the years 2006 to 2009 for the following projects per Buyers Subsidiary Ledger (BSL) 117 amounted to P14,667,577,294.77. However, based on the ICPA's audit of petitioner's Contracts to Sell (CTS), Deeds of Absolute Sale (DOAS), and Account Summaries, 118 the total selling price only amounted to P14,648,623,005.56. There results a difference amounting to P18,954,289.21, as computed below: 119 Project Selling Price per BSL Selling Price per ICPA Audit Difference Berkeley Residences P2,029,068,222.30 P2,032,959,455.82 P(3,891,233.52) Chateau Elysee Residences 35,539,600.00 - 35,539,600.00 Field Residences 792,997,793.20 797,950,391.43 (4,952,598.23) Grass Residences 4,900,295,040.81 4,898,180,860.82 2,114,179.99 Mezza Residences 3,054,115,550.07 3,066,800,193.70 (12,684,643.63) Princeton Residences 520,992,492.77 520,285,993.70 706,499.07 Sea Residences 3,334,568,595.62 3,332,446,110.10 2,122,485.52 P14,667,577,294.77 P14,648,623,005.56 P18,954,289.21 The ICPA explained that a significant portion of the above difference is due to the sales contracts amounting to P35,539,600.00 pertaining to the Chateau Elysee Residences project that was erroneously included in the BSL. The project is not owned by petitioner but is owned by another corporation, SM Synergy Corporation. This was already excluded by the BIR in its computation in FDDA. Thus, additional procedures will no longer be performed to verify this item. HCSAIa Excluding the sales to Chateau Elysee Residences, the remaining difference only amounts to P16,585,310.80, as computed below: Project Selling Price per BSL Selling Price per ICPA Audit Difference Berkeley Residences P2,029,068,222.30 P2,032,959,455.82 P(3,891,233.52) Field Residences 792,997,793.20 797,950,391.43 (4,952,598.23) Grass Residences 4,900,295,040.81 4,898,180,860.82 2,114,179.99 Mezza Residences 3,054,115,550.07 3,066,800,193.70 (12,684,643.63) Princeton Residences 520,992,492.77 520,285,993.70 706,499.07 Sea Residences 3,334,568,595.62 3,332,446,110.10 2,122,485.52 P14,632,037,694.77 P14,648,623,005.57 P(16,585,310.80) This difference noted by the ICPA was generally due to differences in the amounts indicated in the supporting documents and the amounts entered in the BSL. 120 Nevertheless, the examination shall be confined to the amount as audited by the ICPA amounting to P14,648,623,005.57. The above sales amounting to P14,648,623,005.57 as audited by the ICPA were made by petitioner in the following years: ACcaET Year of Sale Amount 2009 P9,311,986,056.67 2008 3,025,198,215.23 2007 1,769,899,629.84 2006 541,539,103.82 Total P14,648,623,005.56 121 As discussed earlier, petitioner's entitlement to ITH only began on July 23 and 24, 2008 and August 14, 2008, and such entitlement is only limited to certain projects. Hence, sale of real estate during 2006, 2007, and January to July 22 and 23, 2008 and January to August 13, 2008, and the corresponding 2009 collections arising from the installment sales made in these years are not entitled to ITH. CaSAcH The ICPA's audit of petitioner's sale of real estate from 2006 to 2009 and the corresponding yearly collections is summarized in Annex A of his ICPA Report. Computation of Gross Income for Income Tax Purposes An examination and verification of the ICPA's audit of the documents supporting the sales of real estate from 2006 to 2009 for income tax purposes is summarized as follows: 122 Selling Price Initial Payments Exceeding 25% Initial Payments Not Exceeding 25% 2009 Collections from Sales with Initial Payments Not Exceeding 25% Year 2009 : Sales of units from projects not covered by ITH P520,285,993.70 P24,391,299.20 P495,894,694.50 P15,827,730.84 Sales of parking units (not residential dwellings subject to exemption) 316,890,288.25 122,334,300.00 194,555,988.25 19,143,535.35 Sales of units from projects covered by ITH but exceeds P3.0M 1,416,298,211.76 365,769,917.23 1,050,528,294.53 85,284,972.99 Sales of units from projects covered by ITH not exceeding P3.0M 7,058,511,562.96 1,306,807,784.55 5,751,703,778.41 416,427,007.79 Total 2009 9,311,986,056.67 1,819,303,300.98 7,492,682,755.69 536,683,246.97 Year 2008 : Sales of units from projects not covered by ITH 1,851,451,523.83 107,025,921.15 1,744,425,602.68 391,115,316.77 Sales of parking units (not residential dwellings subject to exemption) 125,812,000.00 32,023,000.00 93,789,000.00 22,613,973.16 Sales of units from projects covered by ITH but exceeds P3.0M 243,261,877.49 15,349,736.55 227,912,140.94 42,757,747.96 Sales of units from projects covered by ITH not exceeding P3.0M 804,672,813.91 3,823,428.93 800,849,384.98 140,232,925.90 Total 2008 3,025,198,215.23 158,222,086.63 2,866,976,128.60 596,719,963.79 Year 2007 : Sales of units from projects not covered by ITH 1,735,909,629.84 45,054,085.56 1,690,855,544.28 794,533,273.98 Sales of parking units (not residential dwellings subject to exemption) 33,990,000.00 3,366,000.00 30,624,000.00 12,024,426.26 Total 2007 1,769,899,629.84 48,420,085.56 1,721,479,544.28 806,557,700.24 Year 2006 : Sales of units from projects not covered by ITH 532,123,103.82 - 532,123,103.82 175,832,587.71 Sales of parking units (not residential dwellings subject to exemption) 9,416,000.00 - 9,416,000.00 2,254,242.58 Total 2006 541,539,103.82 - 541,539,103.82 178,086,830.29 Grand Total P14,648,623,005.56 P2,025,945,473.17 P12,622,677,532.38 P2,118,047,741.29 Proceeding from the above information, petitioner's total gross income from real estate sales should have been P3,937,351,042.27, as shown below: SaIEcA Initial Payments Exceeding 25% 2009 Collections from Sales with Initial Payments Not Exceeding 25% Gross Income to be Declared in AITR Exempt Taxable Year 2009 : Sales of units from projects not covered by ITH P24,391,299.20 P15,827,730.84 P- P40,219,030.04 Sales of parking units (not residential dwellings subject to exemption) 122,334,300.00 19,143,535.35 - 141,477,835.35 Sales of units from projects covered by ITH but exceeds P3.0M 365,769,917.23 85,284,972.99 - 451,054,890.22 Sales of units from projects covered by ITH not exceeding P3.0M 1,306,807,784.55 416,427,007.79 1,723,234,792.34 - Total 2009 1,819,303,300.98 536,683,246.97 1,723,234,792.34 632,751,755.61 Year 2008 : Sales of units from projects not covered by ITH 391,115,316.77 - 391,115,316.77 Sales of parking units (not residential dwellings subject to exemption) 22,613,973.16 - 22,613,973.16 Sales of units from projects covered by ITH but exceeds P3.0M 42,757,747.96 - 42,757,747.96 Sales of units from projects covered by ITH not exceeding P3.0M 140,232,925.90 140,232,925.90 - Total 2008 596,719,963.79 140,232,925.90 456,487,037.89 Year 2007 : Sales of units from projects not covered by ITH 794,533,273.98 - 794,533,273.98 Sales of parking units (not residential dwellings subject to exemption) 12,024,426.26 - 12,024,426.26 Total 2007 806,557,700.24 - 806,557,700.24 Year 2006 : Sales of units from projects not covered by ITH 175,832,587.71 - 175,832,587.71 Sales of parking units (not residential dwellings subject to exemption) 2,254,242.58 - 2,254,242.58 Total 2006 178,086,830.29 - 178,086,830.29 Grand Total P1,819,303,300.98 P2,118,047,741.29 P1,863,467,718.24 P2,073,883,324.03 Total Gross Income for 2009 P3,937,351,042.27 The audited total gross income for 2009 amounting to P3,937,351,042.27 is lower than the total gross income declared per 2009 AITR amounting to P3,966,342,413.00. As such, petitioner had no undeclared sales, and even overstated its gross income in the 2009 AITR. The following shows our comparison of the amounts determined per audit and the amounts declared in the AITR: IaHDcT Exempt Taxable Total Gross income per audit P1,863,467,718.24 P2,073,883,324.03 P3,937,351,042.27 Gross income per 2009 AITR 1,859,596,273.00 2,106,746,140.00 3,966,342,413.00 Under(over)statement of gross income P3,871,445.24 P(32,862,815.97) P(28,991,370.73) Computation of Gross Sales for VAT Purposes On the other hand, for VAT purposes, the following summarizes the Court's examination and verification of the ICPA's audit of the documents supporting the sales of real estate from 2006 to 2009: 123 CcSTHI Selling Price Initial Payments Exceeding 25% Initial Payments Not Exceeding 25% 2009 Collections from Sales with Initial Payments Not Exceeding 25% Year 2009 : Sales of residential units with value exceeding P2.5 million P1,737,753,686.03 P399,189,272.61 P1,338,564,413.42 P106,004,756.19 Sales of residential units with value not exceeding P2.5 million 7,257,342,082.39 1,297,779,728.37 5,959,562,354.02 411,534,955.43 Sales of parking units 316,890,288.25 122,334,300.00 194,555,988.25 19,143,535.35 Total 2009 9,311,986,056.67 1,819,303,300.98 7,492,682,755.69 536,683,246.97 Year 2008 : Sales of residential units with value exceeding P2.5 million 451,191,833.01 82,092,879.73 369,098,953.28 72,884,381.14 Sales of residential units with value not exceeding P2.5 million 2,448,194,382.22 44,106,206.90 2,404,088,175.32 501,221,609.49 Sales of parking units 125,812,000.00 32,023,000.00 93,789,000.00 22,613,973.16 Total 2008 3,025,198,215.23 158,222,086.63 2,866,976,128.60 596,719,963.79 Year 2007 : Sales of residential units with value exceeding P2.5 million 197,798,827.92 - 197,798,827.92 74,663,116.82 Sales of residential units with value not exceeding P2.5 million 1,538,110,801.92 45,054,085.56 1,493,056,716.36 719,870,157.16 Sales of parking units 33,990,000.00 3,366,000.00 30,624,000.00 12,024,426.26 Total 2007 1,769,899,629.84 48,420,085.56 1,721,479,544.28 806,557,700.24 Year 2006 : Sales of residential units with value exceeding P2.5 million 87,484,937.04 - 87,484,937.04 9,379,608.16 Sales of residential units with value not exceeding P2.5 million 444,638,166.78 - 444,638,166.78 166,452,979.55 Sales of parking units 9,416,000.00 - 9,416,000.00 2,254,242.58 Total 2006 541,539,103.82 - 541,539,103.82 178,086,830.29 Grand Total P14,648,623,005.56 P2,025,945,473.17 P12,622,677,532.39 P2,118,047,741.29 Proceeding therefrom, petitioner's total gross sales from real estate should have been P6,736,665,567.10, as shown below: DEIHAa Initial Payments Exceeding 25% 2009 Collections from Sales with Initial Payments Not Exceeding 25% Gross Sales to be Declared in VAT Returns Exempt VATable Year 2009 : Sales of residential units with value exceeding P2.5 million P399,189,272.61 P106,004,756.19 P- P505,194,028.80 Sales of residential units with value not exceeding P2.5 million: Erroneously reported at 100% of selling price even if initial payments did not exceed 25% - 3,016,213,091.53 3,016,213,091.53 - Correctly reported 1,297,779,728.37 194,636,388.73 1,492,416,117.10 - Sales of parking units 122,334,300.00 19,143,535.35 - 141,477,835.35 Total 2009 1,819,303,300.98 3,335,997,771.80 4,508,629,208.63 646,671,864.15 Year 2008 : Sales of residential units with value exceeding P2.5 million 72,884,381.14 - 72,884,381.14 Sales of residential units with value not exceeding P2.5 million 501,221,609.49 501,221,609.49 - Sales of parking units 22,613,973.16 - 22,613,973.16 Total 2008 596,719,963.79 501,221,609.49 95,498,354.30 Year 2007 : Sales of residential units with value exceeding P2.5 million 74,663,116.82 - 74,663,116.82 Sales of residential units with value not exceeding P2.5 million 719,870,157.16 719,870,157.16 - Sales of parking units 12,024,426.26 - 12,024,426.26 Total 2007 806,557,700.24 719,870,157.16 86,687,543.08 Year 2006 : Sales of residential units with value exceeding P2.5 million 9,379,608.16 - 9,379,608.16 Sales of residential units with value not exceeding P2.5 million 166,452,979.55 166,452,979.55 - Sales of parking units 2,254,242.58 - 2,254,242.58 Total 2006 178,086,830.29 166,452,979.55 11,633,850.74 Grand Total P1,819,303,300.98 P4,917,362,266.12 P5,896,173,954.83 P840,491,612.27 Total Gross Sales for 2009 P6,736,665,567.10 The audited total gross sales for 2009 amounting to P6,736,665,567.10 is lower than the total gross sales declared per 2009 Quarterly VAT Returns amounting to P8,075,077,592.08. As such, petitioner had no undeclared sales as there is overstatement of gross sales in the 2009 Quarterly VAT Returns. The following shows our comparison of the amounts determined per audit and the amounts declared in the VAT Returns: SDTIaE Exempt VATable Total Gross sales per audit P5,896,173,954.83 P840,491,612.27 P6,736,665,567.10 Gross sales per 2009 VAT Returns 6,821,443,653.56 1,253,633,938.52 8,075,077,592.08 Overstatement of gross sales P(925,269,698.73) P(413,142,326.25) P(1,338,412,024.98) In summary, petitioner had no undeclared sales both for income tax and VAT purposes, and the corresponding deficiency income tax and VAT assessments arising therefrom must be cancelled. B. Disallowed expenses due to non-withholding P513,571,489.48 Respondent's comparison of expenses claimed as deduction per Income Tax Returns as against those subjected to withholding taxes per Alphalist disclosed that petitioner failed to withhold and remit fully to the government the corresponding taxes from income payments/expenses shown hereunder, hence, disallowed pursuant to Section 34 (K) 124 of the NIRC. 125 DcHSEa Particulars Per FS Per Alphalist Discrepancy Rate EWT Due Subject to: 1% P527,595,479.14 P137,895,959.14 P389,699,520.00 1% P3,896,995.20 2% 1,866,893,602.82 1,771,250,551.09 95,643,051.73 2% 1,912,861.03 15% 239,521,942.00 222,151,919.86 1,383,899.14 15% 207,584.87 15,986,123.00 10% 1,598,612.30 TOTAL P2,634,011,023.96 P2,131,298,430.09 P502,712,593.87 P7,616,053.41 Add: Salaries not subjected to WTC 10,858,895.61 Disallowed expenses due to non-withholding P513,571,489.48 Petitioner posits that since the deficiency WTC and EWT has already been paid, 126 the corresponding income payments should be allowed as deduction from the taxable income. Section 2.58.5 of Revenue Regulations No. 02-1998, as amended, states that deduction will also be allowed in (certain cases) where no withholding of tax was made. 127 The Court agrees with respondent with regard to this assessment item. Section 2.58.5 of RR No. 02-98, as amended by Section 6 of RR No. 14-02, states: "Sec. 2.58.5. Requirements for Deductibility . Any income payment which is otherwise deductible under the Code shall be allowed as a deduction from the payor's gross income only if it is shown that the income tax required to be withheld has been paid to the Bureau in accordance with Secs. 57 and 58 of the Code. A deduction will also be allowed in the following cases where no withholding of tax was made: AacCIT (A) The payee reported the income and pays the tax due thereon and the withholding agent pays the tax including the interest incident to the failure to withhold the tax, and surcharges, if applicable, at the time of the audit investigation or reinvestigation/reconsideration . (B) The recipient/payee failed to report the income on the due date thereof, but the withholding agent/taxpayer pays the tax, including the interest incident to the failure to withhold the tax, and surcharges, if applicable, at the time of the audit/investigation or reinvestigation/reconsideration. (C) The withholding agent erroneously underwithheld the tax but pays the difference between the correct amount and the amount of tax withheld, including the interest, incident to such error, and surcharges, if applicable, at the time of the audit/investigation or reinvestigation/reconsideration." (Emphasis supplied) Petitioner paid the deficiency WTC and EWT with its penalties on July 26, 2016 and January 1, 2017, both of which were already after the audit investigation or reinvestigation/reconsideration, considering that the FDDA was issued by respondent on June 23, 2016 and was received by petitioner on June 27, 2016. Thus, pursuant to the above-mentioned provision, petitioner can no longer claim as deduction from gross income the disallowed expenses due to non-withholding amounting to P513,571,489.48 even after settling the corresponding deficiency WTC and EWT. Consequently, the assessment must be retained. CTHaSD C. Disallowed per allocation of expense P17,847,804.00 Respondent's verification disclosed that per allocation of expense schedule it was revealed that operating expense attributable to taxable activity was overcharged by the amount of P17,847,804, hence, disallowed pursuant to Section 50 of the NIRC of 1997. 128 Per Allocation Schedule Per ITR Difference Registered Non-registered Registered Non-registered Registered Non-registered Direct cost Marketing and selling 111,667,853.00 122,094,818.00 103,986,663.00 129,776,008.00 7,681,190.00 (7,681,190.00) Brokerage fees and commission 114,692,454.00 120,832,429.00 108,893,942.00 126,630,941.00 5,798,512.00 (5,798,512.00) 226,360,307.00 242,927,247.00 212,880,605.00 256,406,949.00 13,479,702.00 (13,479,702.00) Allocated Salaries and wages 46,489,234.00 46,459,926.00 44,323,904.00 53,204,548.00 - - Taxes and licenses 29,790,918.00 41,223,255.00 27,953,920.00 43,060,252.00 1,836,998.00 (1,836,997.00) Depreciation 4,978,545.00 33,449,783.00 3,255,627.00 35,172,701.00 1,722,918.00 (1,722,918.00) Rental utilities 9,796,960.00 29,621,602.00 9,651,507.00 29,767,055.00 145,453.00 (145,453.00) Entertainment, amusement and recreation 10,023,601.00 9,491,269.00 9,554,139.00 9,960,731.00 469,462.00 (469,462.00) Transportation 1,745,538.00 1,638,454.00 1,625,247.00 1,758,745.00 120,291.00 (120,291.00) Management and professional fees 1,584,347.00 1,204,928.00 1,511,366.00 1,277,909.00 72,981.00 (72,981.00) 104,409,143.00 163,089,217.00 97,875,710.00 174,201,941.00 4,368,103.00 (4,368,102.00) Disallowed expense 17,847,805.00 (17,847,804.00) Petitioner explains that the allocation schedule used by the BIR was the allocation schedule submitted to the BOI. 129 According to petitioner, the figures shown in the said schedule were the same amounts reported in the audited financial statements, which were based on the percentage of completion method. However, for tax purposes, the allocation of operating expense was based on the ratio of the net list price of the units sold per project under ITH and regular tax rate. Thus, petitioner maintains there is no basis for respondent to deny its claimed deductions. 130 TIEHSA The Court finds petitioner's argument untenable. There is no express legal basis in the NIRC of 1997 or any tax regulations which is applicable to petitioner's industry as to the method of allocation of operating expenses for tax purposes. What is clear on the other hand is Section 43 131 of the NIRC of 1997 which provides that the taxable income shall be computed upon the basis of the taxpayer's annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer. Hence, when there are no other tax rules or regulations which apply to a particular transaction, the NIRC of 1997 allows the taxpayer's accounting method employed in determining its income and in keeping its books be also employed in determining its taxable income for tax purposes. In the instant case, since there are no specific tax rules or regulations which provide for the manner of allocation of expenses between exempt and taxable sales, it is but proper to adopt the accounting method employed by petitioner in keeping its books. As stated by petitioner, the method of allocation of expenses used in the schedule submitted to the BOI were the same amounts reported in the AFS, which were based on the percentage of completion method. This allocation method, as employed in petitioner's books and eventually reported in the AFS, shall thus likewise be the proper basis of allocating operating expenses for tax purposes in accordance with Section 43 of the NIRC of 1997. TacSAE Based on the schedule submitted by petitioner to the BOI, the expenses allocated to registered activities amounted to P284,280,216.00, in contrast with the P266,432,411.00 of expenses allocated to exempt sales per its 2009 AITR. Petitioner indeed overstated its operating expenses claimed under taxable sales by P17,847,805.00, as shown below: Per Schedule Submitted to BOI 132 Per 2009 AITR 133 Difference Direct cost Marketing and selling P111,667,853.00 P103,986,663.00 P7,681,190.00 Brokerage fees and Commission 114,692,454.00 108,893,942.00 5,798,512.00 Allocated Taxes and licenses 29,790,918.00 27,953,920.00 1,836,998.00 Depreciation 4,978,545.00 3,255,627.00 1,722,918.00 Rental utilities 9,796,960.00 9,651,507.00 145,453.00 Entertainment, amusement and recreation 10,023,601.00 9,554,139.00 469,462.00 Transportation 1,745,538.00 1,625,247.00 120,291.00 Management and professional fees 1,584,347.00 1,511,366.00 72,981.00 Total P284,280,216.00 P266,432,411.00 P17,847,805.00 Considering the foregoing disposition of disputed assessment items, petitioner's basic deficiency income tax must be reduced to P159,425,788.04, as computed below: TDAcCa Taxable Income per return P575,145,486.00 Add: Discrepancies per audit Unreported gross profit on undeclared sales - Disallowed expenses due to non-withholding P513,571,489.48 Disallowed per allocation of expense 17,847,804.00 531,419,293.48 Adjusted Taxable Income P1,106,564,779.48 Income Tax Due P331,969,433.84 Less: Tax paid/Tax credits Tax paid P87,892,038.80 Current year's creditable withholding tax 84,651,607.00 Total tax paid/tax credits 172,543,645.80 Less: Carried over to succeeding period Disallowed prior year's CWT Disallowed unsubstantiated CWT - 172,543,645.80 Basic Deficiency Income Tax P159,425,788.04 V. Deficiency Value-Added Tax P951,851.65 Respondent computed the deficiency VAT assessment as follows: 134 SDHacT Taxable sales per return P1,206,850,730.07 Add: Other income Undeclared sales P447,351,295.21 Rent income 211,670,368.00 Management income 31,674,939.00 Interest income 29,869,930.00 Commission income 14,269,701.00 Miscellaneous income 71,351,858.00 806,188,091.21 Total taxable income 2,013,038,821.28 VAT rate 12% Output tax P241,564,658.55 Less: Input tax Carried over from previous period Excess input tax carried over P97,883,996.02 On current purchases 312,529,090.71 Total input available 410,413,086.73 Less: Carried over to succeeding period Excess input tax carried over P67,572,567.26 Capital goods exceeding P1M - Input tax allocable to exempt sales 198,018,431.87 265,590,999.13 144,822,087.60 VAT payable P96,742,570.95 Less: Tax paid per returns - Basic tax due P96,742,570.95 Add: 20% interest p.a. (Sec. 248, NIRC) (01/26/10-06/30/16) 124,466,606.34 Compromise penalty (RMO 19-2007) 50,000.00 124,516,606.34 Total amount due P221,259,177.29 Based on the foregoing, the following items comprise the deficiency VAT assessment of petitioner: EDATSI A. Undeclared sales P447,351,295.21 B. Rent income 211,670,368.00 C. Management income 31,674,939.00 D. Interest income 29,869,930.00 E. Commission income 14,269,701.00 F. Miscellaneous income 71,351,858.00 G. Excess input tax carried over 67,572,567.26 H. Input tax on current purchases 312,529,090.71 I. Input tax allocable to exempt sales P198,018,431.87 A. Undeclared sales P447,351,295.21 The assessment must be cancelled as discussed under the deficiency income tax assessment (see item IV.A) . ACETID B. Rent income P211,670,368.00 C. Management income P31,674,939.00 D. Interest income P29,869,930.00 E. Commission income P14,269,701.00 F. Miscellaneous income P71,351,858.00 Respondent's verification disclosed that petitioner failed to include in its VAT returns the above items of Other Income amounting to P358,836,796.00, pursuant to Section 108 135 of the NIRC of 1997 as implemented by Section 4.108-1 136 of RR No. 16-05, as amended. 137 Rent income P211,670,368.00 Management income 31,674,939.00 Interest income 29,869,930.00 Commission income 14,269,701.00 Miscellaneous income 71,351,858.00 P358,836,796.00 Petitioner asserts that it duly reported the above income for VAT purposes as part of the total VATable Revenue per VAT returns in the amount of P1,253,633,938.52. TaDSCA On the other hand, the ICPA reported that the above income formed part of petitioner's taxable income per its annual ITR. For VAT purposes, petitioner reported VATable receipts of P370,448,481.51 in addition to its real estate sales of P7,704,629,110.57. The details and nature of the other income are presented in Exhibit "P-71036", which is an extract of petitioner's GL accounts on Other Income. 138 The assessment must be upheld. The best evidence to verify the breakdown of the reported sales in the VAT returns is the SLS, being a prescribed attachment to VAT returns. As mentioned earlier, petitioner failed to present its SLS for the four (4) quarters of 2009. Hence, the Court cannot verify if it indeed reported the amount of P370,448,481.51 as Other Income, which was eventually included in the VATable sales reported in the 2009 Quarterly VAT Returns. An extract of the GL accounts on Other Income merely provides the summary of the transactions for a certain period but it does not translate to declaration in the VAT returns. Further, assuming that petitioner did declare as Other Income amounting to P370,448,481.51 in its 2009 VAT returns, the same does not reckon with the assessed amount of P358,836,796.00. Hence, it cannot be ascertained if the amount being assessed is indeed part of the amount allegedly declared in the 2009 VAT returns. SDHCac Considering petitioner failed to sufficiently refute respondent's assessment, the same shall not be disturbed. G. Disallowed excess input tax carried over P67,572,567.26 Petitioner has excess input tax credits for the year 2009 amounting to P64,078,349.66 as reflected in its Amended 4th Quarterly VAT Return, 139 as opposed to the amount of P67,572,567.26 noted by respondent which was based on the Original 4th Quarterly VAT Return. 140 The amount of P67,572,567.26 was deducted by respondent from the available input tax credits, thus, effectively disallowing the same. However, he did not provide factual and legal bases for such disallowance in the FLD or in the FDDA. Despite petitioner's failure to refute the same, the Court finds it improper to uphold this assessment item which is already void on its face. Failure to inform petitioner of the factual and legal bases for disallowing the input tax credits is in violation of petitioner's right to due process as accorded by Section 228 of the NIRC of 1997, as amended, which provides that the taxpayers shall be informed in writing of the law and the facts on which the assessment is made; otherwise, the assessment shall be void. Hence, this assessment item should be cancelled. EADSIa H. Input tax on current purchases P312,529,090.71 I. Input tax allocable to exempt sales P198,018,431.87 It was noted that respondent only credited petitioner with input tax in the amount of P312,529,090.71 arising from current purchases and deducted therefrom input tax allocable to exempt sales only in the amount of P198,018,431.87. These amounts were all based on the Original 2009 Quarterly VAT Returns. However, respondent failed to consider that petitioner amended its 4th Quarterly VAT Return, thereby changing the total amount for taxable year 2009 as demonstrated below: Original VAT Returns 141 Amended VAT Returns 142 Input tax on current purchases (Lines 21F and 21J) 1st Quarter P51,313,878.90 P51,313,878.90 2nd Quarter 66,620,259.49 66,620,259.49 3rd Quarter 78,522,082.78 78,522,082.78 4th Quarter 116,072,869.53 143 121,858,260.97 Total P312,529,090.70 P318,314,482.14 Input tax allocable to exempt sales (Line 23C) 1st Quarter P32,512,473.67 P32,512,473.67 2nd Quarter 42,210,596.41 42,210,596.41 3rd Quarter 49,751,591.65 49,751,591.65 4th Quarter 73,543,770.14 77,209,394.15 Total P198,018,431.87 P201,684,055.88 Summarizing all the foregoing findings, the Court holds that petitioner is not liable for any deficiency VAT for taxable year 2009, as determined below: SETAcC Taxable sales per return P1,206,850,730.07 Add: Other income Undeclared sales P- Rent income 211,670,368.00 Management income 31,674,939.00 Interest income 29,869,930.00 Commission income 14,269,701.00 Miscellaneous income 71,351,858.00 358,836,796.00 Total taxable income P1,565,687,526.07 VAT rate 12% Output tax P187,882,503.13 Less: Input tax Excess input tax carried over from previous period P97,883,996.02 On current purchases 318,314,482.14 Total available input tax P416,198,478.16 Less: Input tax allocable to exempt sales 201,684,055.88 214,514,422.28 VAT payable P(26,631,919.15) Less: Tax paid per returns - VAT Overpayment P(26,631,919.15) VI. Deficiency Documentary Stamp Tax P17,431,314.09 The following shows the computation of respondent's assessment for deficiency DST: 144 SEDICa Basic tax due P6,822,798.99 Add: Surcharge P1,705,699.75 20% interest p.a. (Sec. 248, NIRC) (01/06/10-06/30/16) 8,852,815.35 Compromise penalty (RMO 19-2007) 50,000.00 10,608,515.10 Total amount due P17,431,314.09 The basic tax due of P6,822,798.99 was computed by respondent as follows: Amount Rate Tax due Rent income P211,670,368.00 1/1000 + 1 P211,672.00 Advances for project development 1,301,510,831.00 1/200 6,507,555.00 Sale of treasury shares 27,619,200.00 .75/200 103,572.00 P6,822,799.99 DST on Rental Income (Lease Contracts) P211,672.00 Section 194 On each lease, agreement, memorandum, or contract for hire, use or rent of any lands or tenements, or portions thereof, there shall be collected a documentary stamp tax of Three pesos (P3.00) for the first Two thousand pesos (P2,000), or fractional part thereof, and an additional One peso (P1.00) for every One Thousand pesos (P1,000) or fractional part thereof, in excess of the first Two Thousand pesos (P2,000) for each year of the term of said contract or agreement. ITCcAD Documentary Stamp Tax on Advances, P6,507,555.00 Advances for Project Development to related parties amounting to P1,301,510,831.00 was subjected to documentary stamp tax at the rate of P1.00 for each P200.00 pursuant to Section 179 of the NIRC of 1997. DST on Sale of Treasury Shares P103,572.00 Sale of 27,619,146 treasury shares was subjected to DST at the rate of P0.75 for each P200.00 pursuant to Section 175 of the NIRC of 1997. 145 Petitioner, through its witness Ms. Mangaliman, asserts that the DST on the sale of treasury shares amounting to P103,572.00 pertains to shares which are listed in the Philippine Stock Exchange. TIEHSA Republic Act 9648 146 exempts the sale, barter or exchange of shares of stocks listed and traded through the local stock exchange from DST. To quote: "Section 1. Section 199 of the National Internal Revenue Code of 1997, as amended by Republic Act No. 9243, is hereby further amended to read as follows: 'SEC. 199. Documents and Papers Not Subject to Stamp Tax . The provisions of Section 173 to the contrary notwithstanding, the following instruments, documents and papers shall be exempt from the documentary stamp tax: xxx xxx xxx (e) Sale, barter or exchange of shares of stock listed and traded through the local stock exchange.'" As regards the advances, petitioner contends that respondent should not impose DST on the beginning balance considering that such is beyond the scope of their authority. The current tax investigation of respondent refers to internal revenue taxes for taxable year 2009. However, contrary to the authority given by LOA No. 125-2010-000121, 147 respondent assessed petitioner for DST on the beginning balance of the advances which is a balance clearly representing the prior year. Thus, if respondent would want to subject petitioner to assessment prior to taxable year 2009, it should have issued another LOA covering taxable period 2008. Further, petitioner claims that it paid the DST due on rent income and advances for project development amounting to P14,549,298.04 with interest and penalty, computed as follows: 148 149 aHECST Base Deficiency Tax Penalties Total Payment Rent income P211,670,368.00 P211,671.37 P317,499.76 P529,171.13 Advances for Project Development 1,090,890,779.49 5,454,453.90 8,565,672.91 14,020,126.81 P1,302,561,147.49 P5,666,125.27 P8,883,172.67 P14,549,297.94 The Court finds petitioner's arguments meritorious. Sale of Treasury Shares P103,572.00 . Petitioner's shares of stock are listed in the Philippine Stocks Exchange. 150 Hence, the sale, barter, or trade of its shares of stocks are exempted from the imposition of DST pursuant to Section 199 (e) of the NIRC of 1997, as amended by RA No. 9648. With this, the deficiency DST assessed on the Sale of Treasury Shares for taxable year 2009 must be cancelled. ADTEaI Advances for Project Development P6,507,555.00 . As correctly argued by petitioner, respondent's power to assess the former only covers taxable year 2009 as clearly indicated in the LOA from which the current assessment is issued. Hence, respondent's assessment must not fully cover the 2009 ending balance of Advances for Project Development amounting to P1,301,510,831.00 as presented in the 2009 AFS 151 since this amount still includes the outstanding balance in 2008. What should be assessed must only be the advances made during taxable year 2009. Based on the Court's analysis of petitioner's 2009 AFS, the total amount of advances during 2009 amounted only to P1,060,845,552.00, computed as follows: 2008 Balance, Advances for Project Development 152 P880,425,671.00 Add: Increase in advances per Statement of Cash Flows 153 1,060,845,552.00 Less: Liquidated advances 154 639,760,392.00 2009 Balance, Advances for Project Development P1,301,510,831.00 As stated earlier, petitioner already paid the corresponding deficiency DST over these advances on July 26, 2016, as summarized below: 155 Basic tax P5,454,454.00 Surcharge 1,363,613.50 Interest (computed up to July 26, 2016) 7,152,059.41 Compromise 50,000.00 Total P14,020,126.91 However, the base amount of P1,090,890,779.49, as presented by petitioner above, is higher than the advances made during 2009 amounting to P1,060,845,552.00. The difference of P30,045,227.49 was not explained by petitioner. EHACcT Since petitioner used a higher base amount in computing its deficiency DST, the resulting DST is expectedly higher than the final assessed amount. Nevertheless, the amount so paid by petitioner shall be credited to the total final assessed deficiency DST. Rent income P211,672.00 . Petitioner had no objection over the matter and voluntarily settled the assessed deficiency DST amounting to P529,171.13 on January 12, 2017, 156 as broken down below: EacHCD Basic tax P211,671.37 Surcharge - Interest (computed up to January 12, 2017) 297,499.76 Compromise 20,000.00 Total P529,171.13 The Court also noted that petitioner paid other penalties imposed by law, such as the 25% surcharge under Section 248 (A) (3) 157 of the NIRC of 1997 for the deficiency DST on Rent Income and 20% delinquency interest under Section 249 (C) 158 of the NIRC of 1997 for both deficiency DST on Advances for Project Development and Rent Income. The payments made by petitioner on the deficiency DST are summarized as follows: acADIT Assessed Amount Less: Payment on 07/26/2016 Balance as of 07/26/2016 Less: Payment on 01/12/2017 Balance Basic deficiency DST P5,515,900.00 P5,454,454.00 P61,446.00 P61,446.00 P- Surcharge 1,378,975.00 1,363,613.50 15,361.50 15,361.50 - Deficiency interest (1/06/2010 to 06/30/2016) (P5,515,900.00 x 20% x 2,368/365 days) 7,157,069.15 7,152,059.41 5,009.74 - 5,009.74 Amount due as of June 30, 2016 P14,051,944.15 P13,970,126.91 P81,817.24 P76,807.50 P5,009.74 Deficiency interest (7/1/2016 to 7/26/2016) (P5,515,900.00 x 20% x 26/365 days) 78,582.68 - 78,582.68 78,582.68 - Deficiency interest on balance as of 7/26/2016 (7/27/2016 to 1/12/2017) (P61,446.00 x 20% x 170/365 days) 5,723.74 - 5,723.74 5,723.74 - Delinquency interest (7/1/2016 to 7/26/2016) (P14,051,944.15 x 20% x 26 365 days) 200,192.08 - 200,192.08 348,057.21 (147,865.13) Delinquency interest on balance as of 7/26/2016 (7/27/2016 to 1/12/2017) (P81,817.24 x 20% x 170/365 days) 7,621.33 - 7,621.33 - 7,621.33 Total amount due as of December 31, 2017 P14,344,063.99 P13,970,126.91 P373,937.08 P509,171.13 P(135,234.05) Based on the computation above, there was an overpayment of the total amount due by petitioner in the amount of P13 5,234.05. Hence, with this payment, the assessment on DST is thus cancelled. DaCTcA VII. Compromise Penalties P250,000.00 Respondent assessed petitioner of compromise penalties in the amount of P250,000.00 which the latter partially paid in the amount of P156,000.00, leaving an unpaid compromise penalty of P94,000.00, detailed below: Compromise Penalties Per FDDA Less: Payment 159 Remaining Balance Deficiency Income Tax P50,000.00 P50,000.00 Deficiency VAT 50,000.00 50,000.00 Deficiency WTC 25,000.00 P20,000.00 5,000.00 Deficiency EWT 50,000.00 41,000.00 9,000.00 Deficiency FBT 25,000.00 25,000.00 - Deficiency DST 50,000.00 70,000.00 (20,000.00) P250,000.00 P156,000.00 P94,000.00 Nevertheless, the unpaid amount of P94,000.00 should no longer be enforced against petitioner. It must be stressed that a compromise penalty is imposed to avoid prosecution for violation of the provisions of the NIRC of 1997. It is well-settled that the Court has no jurisdiction to compel a taxpayer to pay the compromise penalty because by its very nature, it implies a mutual agreement between the parties in respect to the thing or subject matter that is so compromised, and the choice of paying or not paying it distinctly belongs to the taxpayer. 160 The imposition of the same without the conformity of the taxpayer is illegal and unauthorized. 161 Hence, absent the consent of herein petitioner to the compromise penalty, its imposition should not be allowed. cIECaS WHEREFORE , premises considered, the Petition for Review is PARTIALLY GRANTED . Accordingly, the assessment issued by respondent against petitioner for taxable year 2009 covering deficiency VAT is CANCELLED and SET ASIDE for lack of merit. Likewise, the deficiency DST assessment for taxable year 2009 is CANCELLED and SET ASIDE in view of petitioner's payment on July 26, 2016 and January 12, 2017. On the other hand, the deficiency income tax, WTC, EWT, and FBT assessments for taxable year 2009 are AFFIRMED but with MODIFICATIONS . Accordingly, petitioner is ORDERED TO PAY respondent the amount of FIVE HUNDRED SEVENTY-SIX MILLION ONE HUNDRED SEVEN THOUSAND SIX HUNDRED EIGHTY-EIGHT PESOS AND THIRTY-ONE CENTAVOS (P576,107,688.31) , representing basic deficiency tax, twenty-five percent (25%) surcharge, twenty percent (20%) deficiency interest and 20% delinquency interest imposed on the basic deficiency income tax, WTC, EWT, and FBT, pursuant to Sections 248 (A) (3), 249 (B) and (C) of the NIRC of 1997, respectively, computed until December 31, 2017, as summarized below: ACIEaH Deficiency Income tax P564,914,500.97 Deficiency WTC 6,872,022.15 Deficiency EWT 4,261,907.88 Deficiency FBT 59,257.30 Total P576,107,688.30 The above amounts are computed in detail as follows: Income Tax (IT) WTC EWT FBT Total Basic deficiency tax P159,425,788.04 P2,486,751.69 P7,616,053.41 P1,498,580.71 P171,027,173.85 Surcharge (25%) 39,856,447.01 621,687.92 1,904,013.35 374,645.18 42,756,793.46 Deficiency Interest (20%) until June 30, 2016 IT 4/16/2010 to 06/30/2016 (P159,425,788.04 x 20% x 2,268/365 days) 198,124,760.16 198,124,760.16 WTC 1/16/2010 to 06/30/2016 (P2,486,751.69 x 20% x 2,358/365 days) 3,213,019.44 3,213,019.44 EWT 1/16/2010 to 06/30/2016 (P7,616,053.41 x 20% x 2,358/365 days) 9,840,358.32 9,840,358.32 FBT 1/11/2010 to 06/30/2016 (P1,498,580.71 x 20% x 2,363/365 days) 1,940,354.09 1,940,354.09 Total Amount Due, June 30, 2016 397,406,995.21 6,321,459.05 19,360,425.08 3,813,579.98 426,902,459.32 Deficiency Interest (20%) from June 30, 2016 until December 31, 2017/July 26, 2016/January 12, 2017 IT 7/1/2016 to 12/31/2017 (P159,425,788.04 x 20% x 549/365 days) 47,958,771.31 47,958,771.31 WTC 7/1/2016 to 7/26/2016 and 12/31/2017 (P2,486,751.69 x 20% x 26/365 days) 35,427.70 [(P2,486,751.69 P645,273.49) x 20% x 523/365 days] 527,722.25 563,149.95 EWT 7/1/2016 to 7/26/2016 and 1/12/2017 (P7,616,053.41 x 20% x 26/365 days) 108,502.68 [(P7,616,053.41 P399,987.81) x 20% x 170/365 days] 672,181.45 780,684.13 FBT 7/1/2016 to 7/26/2016 (P1,498,580.71 x 20% x 26/365 days) 21,349.64 21,349.64 Delinquency Interest (20%) from June 30, 2016 until December 31, 2017/July 26, 2016/January 12, 2017 IT 7/1/2016 to 12/31/2017 (P397,406,985.21 x 20% x 549/365 days) 119,548,734.45 119,548,734.45 WTC, excluding surcharge 7/1/2016 to 7/26/2016 and 12/31/2017 (P6,321,459.05 P621,687.92 x 20% x 26/365 days) 81,202.22 [(P6,321,459.05 P621,687.92 P645,273.49 P842,568.07) x 20% x 523/365 days] 1,207,035.16 EWT, excluding surcharge 7/1/2016 to 7/26/2016, 1/12/2017 and 12/31/2017 1,288,237.38 [(P19,360,425.08 P1,904,013.35) x 20% x 26/365 days] 248,694.08 [(P19,360,425.08 P1,904,013.35 P399,987.81 P522,285.36) x 20% x 170/365 days] 1,540,166.33 1,788,860.41 FBT 7/1/2016 to 7/26/2016 (P3,813,579.98 x 20% x 26/365 days) 54,330.45 54,330.45 Delinquency Interest (20%) on Surcharge from June 30, 2016 until December 31, 2017/July 26, 2016 WTC 7/1/2016 to 12/31/2017 (P621,687.92 x 20% x 549/365 days 187,017.35 187,017.35 EWT 7/1/2016 to 12/31/2017 (P1,904,013.35 x 20% x 549/365 days) 572,768.95 572,768.95 Total 564,914,500.97 8,359,863.73 22,502,738.57 3,889,260.07 599,666,363.34 Less: Payments on July 26, 2016 Basic Tax 645,273.49 399,987.81 1,498,580.71 2,543,842.01 Surcharge - - 374,645.18 374,645.18 Interest 842,568.07 522,285.46 1,956,776.89 3,321,630.42 Payments on January 12, 2017 Basic Tax 7,216,065.59 7,216,065.59 Surcharge - - Interest 10,102,491.83 10,102,491.83 Total P564,914,500.97 P6,872,022.17 P4,261,907.88 P59,257.29 P576,107,688.31 In addition, petitioner is ORDERED TO PAY delinquency interest at the rate of twelve percent (12%) computed from January 1, 2018 until full payment thereof, pursuant to Section 249 (C) of the NIRC of 1997, as amended by Republic Act No. 10963, also known as Tax Reform for Acceleration and Inclusion (TRAIN) and as implemented by RR No. 21-2018, on the following amounts due as of June 30, 2016, as determined above: SAHITC Income tax P397,406,995.21 WTC 6,321,459.05 EWT 19,360,425.08 FBT P3,813,579.98 SO ORDERED. (SGD.) JUANITO C. CASTAEDA, JR. Associate Justice Catherine T. Manahan, J. , concurs. ANNEX A Computation of Gross Income for Income Tax Purposes ANNEX B Computation of Gross Sales for VAT Purposes Footnotes 1. Docket, Vol. I, pp. 10-52. 2. Exhibit "59", docket, Vol. III, pp. 963-964. 3. Exhibit "P-1", docket, Vol. III, p. 816; Exhibit "P-70", Q/A 6, Judicial Affidavit (JA) of Gemma L. Mangaliman dated February 10, 2017, docket, Vol. II, p. 338; Joint Stipulation of Facts and Issues (JSFI), docket, Vol. II, p. 670. 4. Exhibit "P-3", docket, Vol. III, p. 830. 5. Exhibit "P-4", docket, Vol. III, p. 831. 6. Par. 1, JSFI, docket, Vol. II, p. 670. 7. Exhibit "P-45", docket, Vol. III, p. 900. 8. Par. 2, JSFI, docket, Vol. II, pp. 667-668. 9. Pars. 3, 4, 5, 6, and 7, JSFI, docket, Vol. II, p. 668. 10. Exhibit "P-46", docket, Vol. III, p. 903. 11. Exhibit "P-47", docket, Vol. III, p. 904. 12. Exhibit "R-5", BIR Records, p. 198. 13. Exhibit "P-49", docket, Vol. III, p. 905. 14. Exhibit "P-50", docket, Vol. III, p. 906. 15. Exhibit "P-51", docket, Vol. III, p. 907. 16. Exhibit "P-52", docket, Vol. III, p. 908. 17. Exhibit "P-53", docket, Vol. III. p. 909. 18. Exhibit "P-54", docket, Vol. III, pp. 910-912. 19. Par. 8, JSFI, docket, Vol. II, p. 668. 20. Exhibit "P-55", docket, Vol. III, pp. 920-926. 21. Par. 9, JSFI, docket, Vol. II, p. 668. 22. Exhibit "P-56", docket, Vol. III, pp. 937-951. 23. Par. 12, JSFI, docket, Vol. II, p. 669. 24. Exhibit "P-57", docket, Vol. III, pp. 952-960. 25. Par. 13, JSFI, docket, Vol. II, p. 669. 26. Exhibit "P-58" docket, Vol. III, pp. 961-962. 27. Exhibit "P-59", docket, Vol. III, pp. 963-964. 28. Par. 14, JSFI, docket, Vol. II, p. 669. 29. Docket, Vol. I, pp. 252-275. 30. Docket, Vol. I, pp. 277-278. 31. Order dated January 10, 2017, docket, Vol. I, p. 330. 32. Docket, Vol. I, pp. 300-307. 33. Docket, Vol. II, pp. 607-634. 34. Minutes of the Hearing, February 16, 2017, docket, Vol. II, p. 637. 35. Docket, Vol. II, pp. 667-691. 36. Docket, Vol. II, pp. 693-703. 37. Docket, Vol. II, pp. 657-661. 38. Minutes of the Hearing, May 29, 2017, docket, Vol. II, p. 723. 39. Exhibit "P-71,053", ICPA Report. 40. Exhibit "P-70", docket, Vol. II, pp. 336-367. 41. Exhibit "P-71,054", docket, Vol. II, pp. 755-786. 42. Docket, Vol. III, pp. 789-814. 43. Docket, Vol. III, pp. 1131-1132. 44. Exhibit "R-20", docket, Vol. I, pp. 316-329. 45. Docket, Vol. III, pp. 1142-1148. 46. Docket, Vol. III, pp. 1155-1156. 47. Resolution dated April 13, 2018, docket, Vol. III, p. 1250. 48. Docket, Vol. III, pp. 1162-1183. 49. Docket, Vol. III, pp. 1190-1248. 50. JSFI, docket, Vol. II, p. 671. 51. Docket, Vol. III, pp. 1190-1248. 52. Docket, Vol. III, pp. 1162-1183. 53. Nippon Express (Philippines) Corp. vs. Commissioner of Internal Revenue , G.R. No. 185666, February 4, 2015. 54. G.R. No. 171251, March 5, 2012. 55. Exhibit "P-59", docket, Vol. III, p. 963. 56. Commissioner of Internal Revenue vs. Kudos Metal Corporation , G.R. No. 178087, May 5, 2010. 57. G.R. No. 192173, July 29, 2015. 58. Commissioner of Internal Revenue vs. Standard Chartered Bank , G.R. No. 192173, July 29, 2015. 59. G.R. No. 192173, July 29, 2015. 60. Exhibits "R-4", "R-6", and "R-8", BIR Records, pp. 197, 201, and 429, respectively. 61. Exhibit "P-47", docket, Vol. III, p. 904. 62. Exhibit "R-5", BIR Records, p. 198. 63. Exhibit "P-49", docket, Vol. III, p. 905. 64. Exhibit "P-50", docket, Vol. III, p. 906. 65. Exhibit "P-51", docket, Vol. III, p. 907. 66. Exhibit "P-52", docket, Vol. III, p. 908. 67. G.R. No. 212825, December 7, 2015. 68. G.R. No. 227544, November 22, 2017. 69. 8th Waiver, Exhibit "P-53", docket, Vol. III, p. 909. 70. April 25, 2009 fell on a Saturday. 71. Exhibit "P-17", docket, Vol. III, p. 856. 72. Exhibit "P-33", docket, Vol. III, p. 876. 73. Exhibit "P-34", docket, Vol. III, p. 878. 74. Exhibit "P-35", docket, Vol. III, p. 880. 75. Exhibit "P-21", docket, Vol. III, p. 864. 76. Exhibit "P-22", docket, Vol. III, p. 865. 77. Exhibit "P-23", docket, Vol. III, p. 866. 78. Liquigaz Philippines Corporation vs. Commissioner of Internal Revenue , CTA EB Nos. 1117 and 1119 (CTA Case No. 8149), September 21, 2015. 79. Par. 8, JSFI, docket, Vol. II, p. 668. 80. Par. 12, JSFI, docket, Vol. II, p. 669. 81. Exhibits "P-60" to "P-62" and "P-64" to "P-66", docket, Vol. III, pp. 978 to 991. 82. G.R. No. L-53961, June 30, 1987. 83. CTA EB No. 1050, March 24, 2015. 84. Details of Discrepancy (DOD), FFDA, Exhibit "P-59", docket, Vol. III, p. 966. 85. FDDA, Exhibit "P-59", docket, Vol. III, p. 964. 86. SEC. 33. Special Treatment of Fringe Benefit . (A) Imposition of Tax . A final tax of thirty-four percent (34%) effective January 1, 1998; thirty-three percent (33%) effective January 1, 1999; and thirty-two percent (32%) effective January 1, 2000 and thereafter, is hereby imposed on the grossed-up monetary value of fringe benefit furnished or granted to the employee (except rank and file employees as defined herein) by the employer, whether an individual or a corporation (unless the fringe benefit is required by the nature of, or necessary to the trade, business or profession of the employer, or when the fringe benefit is for the convenience or advantage of the employer). x x x 87. Implementing Section 33 of the National Internal Revenue Code, as Amended by Republic Act No. 8424 Relative to the Special Treatment of Fringe Benefits. 88. DOD, FFDA, Exhibit "P-59", docket, Vol. III, p. 966. 89. FDDA, Exhibit "P-59", docket, Vol. III, pp. 964 and 966. 90. Exhibits "P-60" to "P-61", docket, Vol. III, pp. 978 to 982. 91. Exhibit "P-64", docket, Vol. III, pp. 986 to 987. 92. SEC. 248. Civil Penalties . (A) There shall be imposed, in addition to the tax required to be paid, a penalty equivalent to twenty-five percent (25%) of the amount due, in the following cases: xxx xxx xxx (3) Failure to pay the deficiency tax within the time prescribed for its payment in the notice of assessment; x x x 93. SEC. 249. Interest . xxx xxx xxx (B) Deficiency Interest . Any deficiency in the tax due, as the term is defined in this Code, shall be subject to the interest prescribed in Subsection (A) hereof, which interest shall be assessed and collected from the date prescribed for its payment until the full payment thereof. (C) Delinquency Interest . In case of failure to pay: (1) The amount of the tax due on any return to be filed, or (2) The amount of the tax due for which no return is required, or (3) A deficiency tax, or any surcharge or interest thereon on the due date appearing in the notice and demand of the Commissioner, there shall be assessed and collected on the unpaid amount, interest at the rate prescribed in Subsection (A) hereof until the amount is fully paid, which interest shall form part of the tax. 94. Implementing Republic Act No. 8424, "An Act Amending the National Internal Revenue Code, as Amended" Relative to the Withholding on Income Subject to the Expanded Withholding Tax and Final Withholding Tax, Withholding of Income Tax on Compensation, Withholding of Creditable Value-Added Tax and Other Percentage Taxes. 95. SEC. 80. Liability for Tax . (A) Employer . The employer shall be liable for the withholding and remittance of the correct amount of tax required to be deducted and withheld under this Chapter. If the employer fails to withhold and remit the correct amount of tax as required to be withheld under the provision of this Chapter, such tax shall be collected from the employer together with the penalties or additions to the tax otherwise applicable in respect to such failure to withhold and remit. 96. DOD, FFDA, Exhibit "P-59", docket, Vol. III, p. 966. 97. Schedule 5, Annex A.4, DOD, FDDA, Exhibit "P-59", docket, Vol. III, pp. 964 and 971. 98. Par. 4.73, Petitioner's Memorandum, docket, Vol. III, pp. 1235-1236. 99. ICPA Report, Exhibit "P-71.053", p. 25. 100. Line 123, Section E, Exhibit "P-8", docket, Vol. III, p. 839. 101. Exhibit "P-67", docket, Vol. III, p. 997. 102. Exhibit "R-19", BIR Records, p. 132. 103. Note 21, 2009 AFS, Exhibit "P-67", docket, Vol. III, pp. 1029 to 1030. 104. Exhibit "R-19", BIR Records, p. 132. 105. Exhibit "P-71.053", ICPA Report, p. 25. 106. Exhibit "P-71.053", ICPA Report, pp. 25 to 26. 107. Exhibits "P-70913" to "P-70947". 108. FDDA, Exhibit "P-59", docket, Vol. III, p. 963. 109. DOD, FDDA, Exhibit "P-59", docket, Vol. III, pp. 965 to 966. 110. Annex A.1, Formal Letter of Demand, Exhibit "P-56", docket, Vol. III, p. 942. 111. Exhibit "P-70", Q & A No. 41, JA of Mangaliman, docket, Vol. II, pp. 350 to 354. 112. Pars. 4.17 to 4.33, Petitioner's Memorandum, docket, Vol. III, pp. 1205 to 1209. 113. Income Tax Regulations. 114. Exhibit "P-8", docket, Vol. III, p. 838. 115. Exhibits "P-17" to "P-20", docket, Vol. III, pp. 856 to 863. 116. Exhibit "P-71.053", ICPA Report, Annexes E and F. 117. Exhibit "P-71035". 118. Exhibits "P-63025" to "P-70912". 119. ICPA Report, Exhibit "P-71.035", p. 13. 120. ICPA Report, Exhibit "P-71-035", Annex D. 121. Difference of P0.01 due to rounding off. 122. See details per Annex A of this Decision. 123. See details per Annex B of this Decision. 124. SEC. 34. Deductions from Gross Income . Except for taxpayers earning compensation income arising from personal services rendered under an employer-employee relationship where no deductions shall be allowed under this Section other than under subsection (M) hereof, in computing taxable income subject to income tax under Sections 24 (A); 25 (A); 26; 27 (A), (B) and (C); and 28 (A) (1), there shall be allowed the following deductions from gross income; xxx xxx xxx (K) Additional Requirements for Deductibility of Certain Payments . Any amount paid or payable which is otherwise deductible from, or taken into account in computing gross income or for which depreciation or amortization may be allowed under this Section, shall be allowed as a deduction only if it is shown that the tax required to be deducted and withheld therefrom has been paid to the Bureau of Internal Revenue in accordance with this Section, Sections 58 and 81 of this Code. 125. DOD, FFDA, Exhibit "P-59", docket, Vol. III, p. 965. 126. Exhibits "P-60" to "P-62", docket, Vol. III, pp. 978 to 984. 127. Par. 4.44, Petitioner's Memorandum, docket, Vol. III, p. 1225. 128. DOD, FDDA, Exhibit "P-59", docket, Vol. III, pp. 965 and 970. 129. Exhibit "P-63", docket, Vol. III, p. 985. 130. Pars. 4.53 to 4.54, Petitioner's memorandum, docket, Vol. III, p. 1228. 131. SEC. 43. General Rule . The taxable income shall be computed upon the basis of the taxpayer's annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer, but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner clearly reflects the income. If the taxpayer's annual accounting period is other than a fiscal year, as defined in Section 22 (Q), or if the taxpayer has no annual accounting period, or does not keep books, or if the taxpayer is an individual, the taxable income shall be computed on the basis of the calendar year. 132. Exhibit "P-63", docket, Vol. III, p. 985. 133. Exhibit "R-19", BIR Records, p. 132. 134. FDDA, Exhibit "P-59", docket, Vol. III, pp. 963 to 964. 135. SEC. 108. Value-Added Tax on Sale of Services and Use or Lease of Properties . (A) Rate and Base of Tax . There shall be levied, assessed and collected, a value-added tax equivalent to ten percent (10%) [now 12%] of gross receipts derived from the sale or exchange of services, including the use or lease of properties. 136. SEC. 4.108-1. VAT on the Sales of Services and Use or Lease of Properties . Sale or exchange of services, as well as the use or lease of properties, as defined in Sec. 108 (A) of the Tax Code shall be subject to VAT, equivalent to twelve percent (12%) of the gross receipts (excluding VAT) starting February 1, 2006. 137. DOD, FDDA, Exhibit "P-59", docket, Vol. III, p. 966. 138. Exhibit "P-71.053", ICPA Report, p. 23. 139. Line 29, Exhibit "P-20", docket, Vol. III, p. 863. 140. Line 29, Exhibit "P-71029". 141. Exhibits "P-17" to "P-19", docket, Vol. III, pp. 856 to 861; Exhibit "P-71029". 142. Exhibits "P-17" to "P-20", docket, Vol. III, pp. 856 to 863. 143. Exhibit "P-71029". 144. FDDA, Exhibit "P-59", docket, Vol. III, p. 964. 145. DOD, FFDA, Exhibit "P-59", docket, Vol. III, p. 967. 146. An Act Exempting from Documentary Stamp Tax Any Sale, Barter or Exchange of Shares of Stock Listed and Traded through the Stock Exchange, Further Amending for the Purpose Section 199 of the National Internal Revenue Code of 1997, as Amended by Republic Act No. 9243, and for Other Purposes. 147. Exhibit "P-45", docket, Vol. III, p. 900. 148. Exhibits "P-65" to "P-66", docket, Vol. III, pp. 988 to 991. 149. Pars. 4.94 to 4.98, Petitioner's Memorandum, docket, Vol. III, pp. 1243 to 1245. 150. Note 1, 2009 AFS, Exhibit "P-67", docket, Vol. III, p. 1001. 151. Exhibit "P-67", docket, Vol. III, p. 996. 152. Id. 153. Id. at p. 1000. 154. Note 20 (e), Id. at p. 1028. 155. Exhibit "P-66", docket, Vol. III, pp. 990 to 991. 156. Exhibit "P-65", docket, Vol. III, pp. 988 to 989. 157. SEC. 248. Civil Penalties . (A) There shall be imposed, in addition to the tax required to be paid, a penalty equivalent to twenty-five percent (25%) of the amount due, in the following cases: xxx xxx xxx (3) Failure to pay the deficiency tax within the time prescribed for its payment in the notice of assessment; x x x 158. SEC. 249. Interest . xxx xxx xxx (C) Delinquency Interest . In case of failure to pay: (1) The amount of the tax due on any return to be filed, or (2) The amount of the tax due for which no return is required, or (3) A deficiency tax, or any surcharge or interest thereon on the due date appearing in the notice and demand of the Commissioner, there shall be assessed and collected on the unpaid amount, interest at the rate prescribed in Subsection (A) hereof until the amount is fully paid, which interest shall form part of the tax. 159. Exhibits "P-60" to "P-62" and "P-64" to "P-66", docket, Vol. III, pp. 978 to 991. 160. The Philippines International Fair, Inc. vs. The Collector of Internal Revenue, et al. , G.R. Nos. L-12928 and L-12932, March 31, 1962. 161. Commissioner of Internal Revenue vs. Lianga Bay Logging Co., Inc., et al. , G.R. No. L-35266, January 21, 1991.