Philex Mining Corp. v. Commissioner of Internal Revenue

FIRST DIVISION [C.T.A. CASE NOS. 7528 & 7564. August 10, 2009.] PHILEX MINING CORPORATION , petitioner , vs . COMMISSIONER OF INTERNAL REVENUE , respondent . DECISION CASANOVA , J p : Before this Court are these consolidated cases seeking the refund or issuance of a tax credit certificate allegedly representing the value-added input taxes petitioner had paid for the purchase of capital goods and/or non-capital goods and services relative to the zero-rated sale of: a) its copper concentrates to Philippine Associated Smelting and Refining Corporation (PASAR); and b) its export sales of gold bars/dore and copper concentrate to foreign buyers. for the 3rd and 4th quarters of 2004 in the total amount of P13,665,856.60 broken down as follows: CTA Case No. Period Covered Amount 7528 3rd Quarter 2004 P11,572,208.81 7564 4th Quarter 2004 2,093,647.79 TOTAL P13,665,856.60 ============ Petitioner is a corporation organized under Philippine laws with principal office at 27 Brixton St., Pasig City. It is engaged in the mining business including the exploration and operation of mine properties and the commercial production and marketing of mine products. 1 DSHcTC Respondent is the government official charged with the administration and enforcement of the national internal revenue laws, including the granting of refund or the credit of taxes erroneously or illegally collected, other refundable or creditable taxes under the Tax Code, with address at the BIR National Office, Diliman, Quezon City, where they may be served with summons. 2 Petitioner is VAT-registered with VAT Registration Certificate No. 35-6-000731 effective October 29, 1997 (under BIR Form No. 2303 as of January 31, 1997). Petitioner, likewise, had its Application for Zero-Rate, pursuant to Sec. 4, 100-3 of Revenue Regulations No. 7-95, approved effective April 12, 1998. 3 The facts of the case, as culled from the records, are as follows: Petitioner entered into Contract No. 7002 on October 29, 2001 with Johnson Mathey Public Limited Company (Johnson Mathey) of Orchard Road, Royston, Herts, SG 8 5HE England, for the delivery by petitioner to Johnson Mathey of "gold dore" in the form of bars for refining at Johnson Mathey's refinery at Royston, England and the subsequent sales of the refined gold to Johnson Mathey. Petitioner made one (1) shipment of gold bars to Johnson Mathey during the 3rd quarter of 2004 with a dollar value of US$45,061. 4 EScaIT On March 11, 2004, petitioner entered into a Long Term Gold and Copper Concentrates Sales Agreement 5 with Pan Pacific Copper Co., Ltd. of Tokyo, Japan for the sale of copper concentrate by petitioner to Pan Pacific starting April 1, 2004. Petitioner made two (2) shipments of copper concentrates to Pan Pacific during the 3rd quarter of 2004 with a gross value of US$10,685,784. 6 By virtue of a letter agreement 7 entered into on April 25, 2003, whereby petitioner shall sell and Philippine Associated Smelting and Refining Corporation (PASAR) shall buy copper concentrates for the period from April 1, 2003 to March 31, 2004 and April 1, 2004 to March 31, 2005, petitioner made three (3) shipments of copper concentrates to PASAR during the 3rd quarter of 2004 with a gross value of US$4,518,716 and six (6) shipments for the 4th quarter of 2004 with a gross value of US$22,378,248. 8 HCaDET Petitioner filed its original and amended VAT returns for the 3rd quarter of 2004 on October 25, 2004 and February 21, 2005, 9 respectively, which reflected the following: Total zero-rated sales P857,716,670.95 Domestic purchases of goods 5,212,078.10 Input Tax P521,207.81 Importation of goods 110,510,010.00 Input Tax 11,051,001.00 Petitioner filed its original and amended VAT returns for the 4th quarter of 2004 on January 21, 2005 and April 6, 2005, respectively, reflecting the following information: 10 Total zero-rated sales P1,308,488,112.74 Domestic purchases of goods 235,707.90 Input Tax P23,570.79 Importation of goods 20,700,770.00 Input Tax 2,070,077.00 Petitioner filed its administrative claim for refund/tax credit for the 3rd quarter of 2004 on November 25, 2005 with the One Stop Shop Center of the Department of Finance in the amount of P11,572,208.81 per Application No. 52488 11 and, on March 2, 2006 for the 4th quarter of 2004 in the amount of P2,093,647.79 per Application No. 52740. 12 Due to respondent's inaction on petitioner's claims for refund/tax credit certificates and, in order to protect its rights and interest, petitioner filed these two petitions on October 3, 2006, for the claim covering the 3rd quarter of 2004 in the amount of P11,572,208.81 docketed as CTA Case No. 7528 and, on January 9, 2007, covering the 4th quarter of 2004 in the amount of P2,093,647.79 docketed as CTA Case No. 7564. cSEaDA Respondent, in the Answers, interposed the following Special and Affirmative defenses: FOR CTA CASE NO. 7528: 13 "6. The claim for refund is still under examination by the Respondent's Bureau; 7. Claims for refund are strictly construed against the taxpayer as the same partake the nature of a tax exemption. The grant of the claim for refund is tantamount to an exemption; 8. The taxpayer has the burden to show that the taxes were erroneously or illegally paid. Failure on the part of the Petitioner to prove the same is fatal to its cause of action; EHSCcT 9. The taxes sought to be refunded were paid in accordance with law; 10. The Petitioner should prove that its legal basis for claiming for the amount being refunded. FOR CTA CASE NO. 7564: 14 "6. The claim for refund is still under examination by the respondent's Bureau; 7. The burden of proof is upon the petitioner to prove that it is entitled to the claim for refund or issuance of tax credit certificate; 8. The grant of claim for refund tantamount to an exemption from taxation which is construed strictly against the claimant and in favor of the taxing authority; 9. The taxes sought to be refunded were paid in accordance with law; the burden of proof to the contrary is upon petitioner-claimant to show with clear and unambiguous provision of law supporting the same. cDAITS On September 28, 2007, petitioner filed a Motion to Consolidate 15 CTA Case Nos. 7528 and 7564 as the issues to be tried and resolved in both cases are similar; the same witnesses will testify on similar facts and issues; and the same documentary evidence will be presented as exhibits. On October 9, 2007, the Court promulgated a Resolution 16 granting petitioner's Motion to Consolidate. After presentation of its testimonial and documentary evidence, petitioner filed its Formal Offer of Evidence 17 on April 11, 2008, which was admitted by the Court per Resolution 18 dated June 5, 2008. On August 26, 2008, petitioner filed its Memorandum 19 and, thereafter, the case was submitted for resolution on September 22, 2008, sans respondent's memorandum. The parties have jointly stipulated on the following issues for resolution of this Court: CTA Case No. 7528 20 1. Whether or not petitioner's importation of capital goods, and domestic purchases and importation of goods which are attributable to its export sales for the 3rd quarter of 2004, are supported by documentary evidence. 2. Whether or not the accumulated or excess input VAT was not utilized or applied by petitioner against output VAT in the 3rd quarter of 2004 or in the succeeding quarters or taxable years. 3. Whether or not the export sales were paid for in acceptable foreign currency and accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas. EHSTDA 4. Whether or not petitioner is entitled to the refund of the excess input taxes in the total amount of P11,572,208.81 for the 3rd quarter of 2004 paid for the purchase of capital goods and/or non-capital goods and services due to petitioner being a producer and exporter of mineral products. CTA Case No. 7564 21 1. Whether or not petitioner's importation of capital goods, and domestic purchases and importation of goods which are attributable to its export sales for the 4th quarter of 2004, are duly supported by documentary evidence. 2. Whether petitioner made direct and indirect exports of mineral products during the same period. 3. Whether or not the accumulated or excess input VAT was not utilized or applied by petitioner against output VAT in the 4th quarter of 2004 or in the succeeding quarters or taxable years. 4. Whether or not the export sales were paid for in acceptable foreign currency and accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas. 5. Whether or not petitioner is entitled to the refund of the excess input taxes in the total amount of P2,093,647.79 for the 4th quarter of 2004 paid for the purchase of capital goods and/or non-capital goods and services due to petitioner being a producer and exporter of mineral products. The issues may be simplified as follows: "Whether or not petitioner is entitled to its claim for refund/tax credit certificate of excess input taxes attributable to its export/zero-rated sales for the 3rd and 4th quarters of 2004 in the amount of P11,572,208.81 and P2,093,647.79, respectively." Petitioner's claim is anchored on Section 112 (A) of the Tax Code of 1997 which allows the tax refund/credit of unutilized input VAT attributable to zero-rated or effectively zero-rated sales. Section 112 (A) reads: " Sec. 112. Refundable n or Tax Credits of Input Tax . (A) Zero-rated or Effectively Zero-rated Sales. Any VAT-registered person whose sales are zero-rated or effectively zero-rated may, within two (2) years after the close of the taxable quarter when the sales were made, apply for the issuance of a tax credit certificate or input tax due or paid attributable to such sales, except transitional input tax to the extent that such input tax has not been applied against output tax: Provided, however, That in the case of zero-rated sales under Section 106(A)(2)(a)(1), (2) and B and Section 108(B) (1) and (2), the acceptable foreign currency exchange proceeds thereof had been duly accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP). Provided, further, That where the taxpayer is engaged in zero-rated sale and also in taxable or exempt sale of goods or properties or services, and the amount of creditable input tax due or paid cannot be directly and entirely attributable to anyone of the transactions, it shall be allocated proportionately on the basis of the volume of sales." SDEITC Based on the afore-quoted provision and, as laid down by the Supreme Court in the case of Intel Technology Philippines vs. CIR , 22 a taxpayer engaged in zero-rated or effectively zero-rated transactions may claim a refund/tax credit certificate for input taxes attributable to such sales upon compliance with the following requisites: (1) the taxpayer is engaged in sales which are zero-rated or effectively zero-rated; (2) the taxpayer is VAT registered; (3) the claim must be filed within two years after the close of the taxable quarters when such sales were made; IaAHCE (4) the creditable input tax due or paid must be attributable to such sales and were not applied against output VAT liability; (5) the foreign currency exchange proceeds thereof had been duly accounted for in accordance with BSP rules and regulations. Petitioner contends that it has been able to satisfy the above requisites/conditions. As to its zero-rated sales, petitioner presented in evidence final sales invoices covering its direct and indirect export sales of gold and copper concentrates, export declarations, 23 bills of lading and airway bills. 24 It was, likewise, stipulated by the parties in their Stipulation of Facts and Issues, 25 approved by the Court, that petitioner's sales of its mine products are all zero-rated pursuant to Sec. 106 (A) (2) (a) (1) and (5) of the Tax Code. TCIDSa Anent the second and third requisite, the same were also part of the admitted facts in the Stipulation of Facts and Issues. 26 Regarding the fourth requisite of non-utilization, the Audit Report 27 of the Independent Certified Public Accountant (ICPA), Mr. Albert Alba, was presented and admitted in evidence and reported thus: " Value-Added Tax Returns Exhibit N 22. Petitioner's value-added tax returns from the 1st quarter of 2002 to the 2nd quarter of 2006 (Exhibits N-1 to N-18) were reviewed to determine whether or not the excess input tax for the 3rd and 4th quarters of 2004 which are the subject matter of the claims in CTA Case 7528 and 7564 were subsequently utilized to pay Petitioner's output tax liabilities. DIESaC 23. As shown in the table on page 8, the excess input taxes paid for the 3rd and 4th quarters of 2004 totaling P11,572,208.81 and P2,093,647.79, respectively, were carried over to the subsequent quarters (up to the 2nd quarter of 2005 for excess input taxes paid in the 3rd quarter of 2004 and up to the 2nd quarter of 2006 for excess input tax paid in the 4th quarter of 2004) but that during these periods the said excess input taxes were not sued to pay Petitioner's output tax liabilities. . . ." 28 The tabulation 29 mentioned in Item #23 of the Audit Report shows the following: Output Tax Input Tax Excess Input Tax From/To Quarter Due Paid Prior Quarter Next Quarter 2002 First quarter P63,884.28 P2,880,805.37 P - P2,816,921.09 Second quarter 129,390.91 4,238,224.13 2,816,921.09 6,925,754.31 Third quarter 144,768.38 9,322,964.05 6,925,754.31 16,103,949.98 Fourth quarter 171,745.04 4,206,812.85 16,103,949.98 20,139,017.79 2003 First quarter 216,649.51 5,766,462.11 20,139,017.79 25,688,830.39 Sub-total 26,415,268.51 Second quarter 74,349.73 5,328,392.64 25,688,830.39 30,942,873.30 Third quarter 52,413.13 3,022,281.79 30,942,873.30 33,912,741.96 Fourth quarter 35,228.90 7,594,657.61 33,912,741.96 41,472,170.67 2004 First quarter 213,975.00 9,411,327.74 41,472,170.67 50,669,523.41 Second quarter 23,182.00 14,479,595.41 50,669,523.41 65,125,936.82 Sub-total 39,836,255.19 Total 1,125,586.88 66,251,523.70 65,125,936.82 VAT refund/ TCC Claimed (1,125,586.88) (26,415,268.51) (25,289,681.63) For carry over - 3rd quarter 2004 - 39,836,255.19 39,836,255.19 Third quarter 1,302.76 11,572,208.81 39,836,255.19 51,407,161.24 Sub-total 51,408,464.00 Fourth quarter 469,115.08 2,093,647.79 51,407,161.24 53,031,693.95 2005 First quarter 540,087.49 9,403,417.40 53,031,693.95 61,895,023.86 Second quarter - 6,332,598.23 61,895,023.86 68,227,622.09 Sub-total 17,829,663.42 Total 1,010,505.33 69,238,127.42 68,227,622.09 VAT Refund/ TCC Claimed (1,010,505.33) (51,408,464.00) (50,397,958.67) For carry over - 3rd quarter 2005 - 17,829,663.42 17,829,663.42 Third quarter - 23,956,732.44 17,829,663.42 41,786,395.86 Sub-total 41,786,395.86 Fourth quarter - 10,591,686.58 41,786,395.86 52,378,395.86 2006 First quarter - 10,188,692.14 52,378,082.44 62,566,774.58 Second quarter - 11,970,602.23 62,566,774.58 74,537,376.81 Sub-total 32,750,980.95 74,537,376.81 VAT Refund/ TCC Claimed - (41,786,395.87) (41,786,395.87) For carry over - 3rd quarter 2006 - P32,750,980.95 P32,750,980.95 ========= ========== ========== And lastly, on the requisite of due accounting of foreign exchange proceeds of the sale in accordance with BSP rules and regulations, the Audit Report presented the following: AEIcSa " Summaries of Sales and Remittances Exhibits H and I 9. . . . 10. The export sales shown in the summaries are paid in US dollars or its equivalent in Philippine peso thru the banking system in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP) as shown on page 4. Particulars 3rd Quarter 4th Quarter Gross Sales per Summary US$15,334,755 US$23,240,404 Adjustment for marketing charges (1,636,234) (2,293,936) Net Sales 13,698,521 20,946,468 Receivables: At beginning of quarter 6,021,870 2,568,661 At end of quarter (2,568,661) (3,373,080) Gross Remittances 17,151,730 20,142,049 Withholding taxes and bank charges (115,247) (39,775) Net Remittances 17,036,483 20,102,274 Difference 24 7 Actual Remittances Received US$17,036,507 US$20,102,281 ============ =========== Petitioner, likewise, offered in evidence documents to comply with the fifth requisite such as certification of bank remittances 30 and entries in its passbooks. 31 EACIaT DISCUSSION Despite the petitioner's arguments, the instant Petition for Review must still fail. Petitioner's claims for refund or tax credit for its unutilized input value-added tax, relative to its zero-rated direct and indirect sales of gold and/or copper concentrate, covering the third and fourth quarters of 2004 in the total amount of P13,665,856.60, were filed beyond the prescriptive period provided under Section 112 (A) of the NIRC, the provisions of which were herein earlier quoted. The Supreme Court had, in the case of Commissioner of Internal Revenue vs. Mirant Pagbilao Corporation , 32 ruled as follows: CaDATc "The above proviso clearly provides in no uncertain terms that unutilized input VAT payments not otherwise used for any internal revenue tax due the taxpayer must be claimed within two years reckoned from the close of the taxable quarter when the relevant sales were made pertaining to the input VAT regardless of whether said tax was paid or not ." (Underscoring supplied) The periods involved in the claims subject of these consolidated cases are the third and fourth quarters ending September 30, 2004 and December 31, 2004, respectively. Petitioner's claims (both in the administrative and judicial levels) should have been filed on or before October 2, 2006 33 and January 2, 2007. 34 While the original administrative claims were filed within the two-year prescriptive period on November 25, 2005 35 and March 2, 2006, 36 respectively, the Petitions for Review (Case Nos. 7528 and 7564) filed with this Court on October 3, 2006 and January 9, 2007, for the 3rd and 4th quarters of 2004, respectively, fall beyond the period prescribed by law. Thus, petitioner's entire claim/s must necessarily fail due to prescription. EAICTS WHEREFORE , premises considered, the Petitions for Review are hereby DENIED and DISMISSED on the ground that the claim/s had prescribed. SO ORDERED . (SGD.) CAESAR A. CASANOVA Associate Justice Lovell R. Bautista, J., concurs. Ernesto D. Acosta, P.J., concurring and dissenting. Separate Opinions ACOSTA , P.J., concurring and dissenting opinion : The majority denied the instant consolidated Petitions on the ground of prescription. They recognized the applicability of Section 112 (A) of the National Internal Revenue Code (NIRC) of 1997 and the recent decision of the Supreme Court in Commissioner of Internal Revenue vs. Mirant Pagbilao Corporation 1 in the instant case, thus, the two-year period is reckoned from the close of the taxable quarter when the relevant sales were made pertaining to the input VAT. Accordingly, September 30, 2004 and December 31, 2004, being the close of the third and fourth quarters involved in the case, were used as the focal point in counting the two-year prescriptive period. The majority concluded that petitioner's claims (both administrative and judicial levels) should have been filed on or before October 2, 2006 and January 2, 2007. Petitioner's administrative claims filed on November 25, 2005 and March 2, 2006 were considered within the two-year period but the filing of the Petitions for Review on October 3, 2006 and January 9, 2007 were beyond the prescriptive period, thus the dismissal of the petitions. Concisely stated, it is the majority's opinion that the two-year period provided under Section 112 (A) of the NIRC of 1997 includes the filing of both the administrative and judicial claims. DCAHcT With due respect, I am in accord with the denial of the petitions on the ground of prescription, nonetheless, I am traversing a different line of reasoning. I differ on the majority's opinion that the two-year period includes the period for filing a judicial claim before this Court. Section 112 (A) of the NIRC of 1997 2 merely sets a limitation on the period on when to file an administrative claim. It excludes the time of recourse before this Court. First, a reading of the Section 112 (A) suggests a different interpretation. The said section reads: AIaHES " SEC. 112. Refunds or Tax Credits of Input Tax . (A) Zero-rated or Effectively Zero-rated Sales . Any VAT-registered person, whose sales are zero-rated or effectively zero-rated, within two (2) years after the close of the taxable quarter when the sales were made, apply for the issuance of a tax credit certificate or refund of creditable input tax due or paid attributable to such sales . . . ." (Emphasis supplied.) Apparently, the afore-quoted section uses the word "apply" which connotes the filing of an administrative claim. A taxpayer does not apply a claim for refund before this Court but rather files an "appeal" on the decision or inaction of the Commissioner. If Congress intends the two-year period to include both the administrative and judicial recourse, then the word "files" should have been used. HEIcDT Second, the two-year prescriptive period in Section 112 (A) of the NIRC of 1997 is a mere prologue to the complete procedure of filing a claim of refund of input tax. If we read through Section 112, the following are the procedures laid down: a. A taxpayer who wishes to file a claim for refund of unutilized or excess input Value-Added Tax (VAT) should file an administrative claim within two years from the close of the taxable quarter [Section 112 (A) and (B) of the NIRC of 1997]; b. Upon the filing of the claim, the Commissioner of Internal Revenue has 120 days from the submission of relevant supporting documents to decide the claim [Section 112 (D), first paragraph]; IDSaAH c. Upon denial, or upon expiration of the 120 days, with no action on the part of the Commissioner, the taxpayer has 30 days to file an appeal before this Court; otherwise the taxpayer will lose its chance to file the said appeal [Section 112 (D), second paragraph]. If we adhere to the majority's interpretation that the two year period includes the judicial appeal before this Court, the periods of 120 days for the Commissioner to decide a claim and the 30 days within which to file an appeal before this Court provided under Section 112 (D), can be rendered inutile. It is possible that taxpayers will file their administrative and judicial claim at a time when the two-year period is about to prescribe, as what have been actually happening in some cases, even without awaiting the expiration of the 120 days, justifying their action on the ground that the two-year period is about to prescribe. Worth emphasizing is the legal fiat that we should avoid, if possible, a construction that renders any part of the statute meaningless or extraneous. A law should be interpreted with a view to upholding rather than destroying it. 3 aSIETH On the other hand, limiting the two-year period under Section 112 (A) to the filing of administrative claims will promote the concerns of all the parties. Taxpayers will be given a longer time of two years to file their administrative claim sans the fear of losing their right to seek judicial relief, the Bureau of Internal Revenue (BIR) will be given 120 days to study the taxpayers claim, and the Court will be limited to reviewing the decisions of the BIR on claims for refund of input taxes rather than be bombarded with cases that should have been decided administratively. Furthermore, Section 112 (A) does not contain a limitation that a taxpayer can no longer have a judicial recourse if the two-year period have already expired, unlike Section 229 of the NIRC of 1997 which clearly sets forth that "no suit or proceeding shall be filed after the expiration of two years from the date of payment". The obvious reason is because Section 112 provides for its own limitation. Section 112 (D) gives taxpayers 30 days within which to file their appeals before this Court. Between the limitations found in Section 112, a provision specifically dealing with input taxes, and Section 229 which generally covers refunds of erroneously or illegally collected taxes; logic dictates that we should follow Section 112. Thus, I see no reason behind the rationale that even in cases of claims of refund of input taxes, a taxpayer should file both its administrative and judicial claim within the two year period. ACETIa While it is true that this Court had been consistent in ruling that taxpayers should file their administrative and judicial recourse within the two year period, however, I believe that such ruling can no longer be applied indiscriminately under the NIRC of 1997. It is beyond cavil that Section 106 (now, 112) of the 1977 Tax Code [prior to its amendments by Republic Act (RA) No. 7716 otherwise known as "The Expanded Value Added Tax Law" which became effective on May 28, 1994, and later on by Republic Act (RA) No. 8424 otherwise known as "The Tax Reform Act of 1997" which took effect on January 1, 2008 * ] , failed to provide a period when a taxpayer may file its appeal before this Court. Then Section 106 merely provides for the period when a taxpayer may file its administrative claim and the period for the Commissioner to act on the claim. This is the reason why the period of limitation in Section 230 (now, 229) of the same Code that " no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of the tax or penalty regardless of any supervening cause that may arise after payment " is applied to cases of refund of input taxes. As an example is the case of Atlas Consolidated Mining and Development Corporation vs. Commissioner of Internal Revenue , 4 where the Supreme Court applied the interpretation accorded to the prescriptive periods under Section 230 (now, Section 229) of the 1977 Tax Code to therein case, involving refund of input taxes and held that: " The very same reasons set forth in the afore-cited cases concerning the two-year prescriptive period for claims for refund of illegally or erroneously collected income tax may also apply to the Petitions at bar involving the same prescriptive period for claims for refund/credit of input VAT on zero-rated sales ." (Emphasis supplied.) Consequently, even in refunds of input taxes, taxpayers are mandated not to await the decision of the Commissioner before elevating their cases to this Court if the two-year period is about to prescribe. Such rule is intended for the benefit of taxpayers who can be deprived of availing judicial recourse if they failed to do so within the two-year period. However, under Section 112 (D), the probability of losing one's judicial recourse is not too high-flying because a taxpayer is given two years to file its claim, the Commissioner is given another 120 days to study the claim and the taxpayer has 30 days to appeal the Commissioner's adverse action or inaction. Thus, I do not think that there is still a need to extend the application and rationale of the two-year prescriptive period under Section 229 to refund of input taxes. Taxpayers are already afforded with the protection that they need. Therefore, I find no justification why Section 112 (D) was not applied in the instant case in considering whether the claim has prescribed or not. We cannot consider the second paragraph of Section 112 a mere perfunctory aftermath of the amendments to the 1977 NIRC. It was placed there to fill up the absence of a rule on when to appeal a refund case of input VAT before this Court. We cannot simply ignore this. In the instant case, petitioner's administrative claim on November 25, 2005 and March 2, 2006 for the third and fourth quarters, respectively are well within the two-year prescriptive period. From said dates, respondent has 120 days to act on petitioner's claim. The 120th day is on March 25, 2006 and July 30, 2006. If the claim is unacted, such as the instant case, petitioner has 30 days to appeal before this Court. Petitioner should have filed its petitions before this Court on April 25, 2006 and August 5, 2006 for the third and fourth quarters, respectively. Petitioner filed its judicial claim only on October 3, 2006 and January 9, 2007, way beyond the prescriptive period of 30 days. Petitioner's claim is therefore prescribed. FOR ALL THE FOREGOING, it is my stand that in accordance with Section 112 (A) of the NIRC of 1997, a taxpayer has two years to file its administrative claim, counted from the close of the taxable quarter involved. However, pursuant to Section 112 (D) of the same code, the Commissioner has 120 days to decide on a taxpayer's claim, and within 30 days upon the expiration thereof in case of inaction or upon receipt of the adverse decision of the Commissioner, a taxpayer can appeal before this Court. Considering so, filing judicial claims beyond the 30-day period will be a futile action for the same will be denied or dismissed on the ground of prescription. HDTSCc Footnotes 1. Petition for Review, par. 2 Docket, p. 1; Stipulation of Facts and Issues (SFI), Docket, p. 43 (Case No. 7528). 2. Ibid. , par. 3, Docket, p. 1 (Case No. 7528). 3. Id. , par. 3, SFI, Docket, p. 43 (Case No. 7528). 4. Memorandum for the Petitioner, par. 8-9, Docket, p. 157-158 (Case No. 7528). 5. Exhibit "B". 6. Ibid. , par. 1, Docket, p. 158 (Case No. 7528). 7. Exhibit "A". 8. Id. , par. 2 & 3, Docket, p. 158 (Case No. 7528). 9. Stipulation of Facts and Issues (SFI), par. 5, Docket, p. 43 (Case No. 7528). 10. Stipulation of Facts and Issues (SFI), par. 1, Docket, p. 43 (Case No. 7564). 11. SFI, par. 1, Docket, p. 44 (Case No. 7528). 12. SFI, par. 2, Docket, p. 43 (Case No. 7564). 13. Docket, p. 26 (Case No. 7528). 14. Docket, p. 30 (Case No. 7564). 15. Docket, pp. 125-126 (Case No. 7528). 16. Ibid. , p. 129. 17. Ibid. , pp. 142-147. 18. Ibid. , pp. 150-151. 19. Ibid. , pp. 156-183. 20. Stipulation of Facts and Issues (SFI), Docket, pp. 43-45 (Case No. 7528). 21. SFI, Docket, pp. 42-45 (Case No. 7564). 22. Intel Technology Philippines vs. CIR , G.R. No. 166732, April 27, 2007. 23. Exhibit "F-1a" to "F-3-a". 24. Exhibit "F-1-b" to "F-6-b" (for the 3rd quarter); Exhibit "G-1-a" to "G-6-a" (for the 4th quarter). 25. SFI, Docket, pp. 43-45 (Case No. 7528); SFI, Docket, pp. 42-45 (Case No. 7564). 26. Summary of Facts Admitted, pars. 2 & 7, SFI, Docket, pp. 43-44 (Case No. 7528). 27. Exhibit "E". 28. Ibid. , p. 7. 29. Id. , p. 8. 30. Exhibits "H-1", "H-2", "H-3" and "H-4" (for the 3rd quarter); Exhibits "I-1" to "I-6" (for the 4th quarter). 31. Exhibits "H-1-a" to "H-1-h"; "H-3-a" to "H-3-d" and "H-4-a" to "H-4-c" (for the 3rd quarter) and "I-1-a" to "I-3-a"; "I-5-a" to "I-5-b"; and "I-6-a" to "I-6-a" * (for the 4th quarter). 32. Commissioner of Internal Revenue vs. Mirant Pagbilao Corp ., G.R. No. 172129, Sept. 12, 2008. 33. September 30, 2006 fell on a Saturday. 34. October 31, 2006 and January 1, 2007 were non-working holidays. 35. Summary of Facts Admitted, Par. 5, Docket, p. 44 (Case No. 7528); Annexes "C" & "C-1", Petition for Review. 36. Summary of Facts Admitted, Par. 5, Docket, p. 43 (Case No. 7564); Annexes "C" & "C-1", Petition for Review. ACOSTA, P.J., concurring and dissenting opinion: 1. G.R. No. 172129, September 12, 2008 (Supreme Court Third Division). Respondent's Motion for Partial Reconsideration was denied in a Resolution dated November 26, 2008 by the Supreme Court Second Division. 2. Prior to its amendment by Republic Act No. 9337, "AN ACT AMENDING SECTIONS 27, 28, 34, 106, 107, 108, 109, 110, 111, 112, 113, 114, 116, 117, 119, 121, 148, 151, 236, 237 AND 288 OF THE NATIONAL INTERNAL REVENUE CODE OF 1997, AS AMENDED, AND FOR OTHER PURPOSES"; effective July 1, 2005. 3. Ruben E. Agpalo, Statutory Construction, Fifth Edition (2003), Pages 256-257. 4. G.R. Nos. 141104 & 148763; June 8, 2007. n Note from the Publisher: The term "Refundable" should read as "Refunds".