USAID Project — "Health Sector Development Program-LGU Systems Strengthening Component"

November 4, 2008 DA ITAD BIR RULING NO. 089-08 Section 34, Vienna Convention on Diplomatic Relations; Revenue Memorandum Circular No. 40-2007; BIR Ruling No. ITAD 47-08 Embassy of the United States of America 1201 Roxas Boulevard Manila Attention: Mr. Henri G. Roovers Chief of Party, Lower Penthouse 3203-3204 Research Triangle Institute SUBJECT : USAID Project "Health Sector Development Program-LGU Systems Strengthening Component" Gentlemen : This refers to your Diplomatic Note No. 0627 dated May 27, 2008, forwarded to this Office by the Department of Foreign Affairs, requesting for a tax-free purchase of two (2) locally assembled motor vehicles specifically described hereunder, for the official use of the Research Triangle Institute (RTI), as implementing agent of the United States Agency for International Development (USAID) for the project "Health Sector Development Program-LGU Systems Strengthening Component", pursuant to the 1951 Economic and Technical Cooperation Agreement between the Government of the United States of America and the Government of the Republic of the Philippines (1951 Agreement). Make Model Color Chassis Number Engine Year Number Ford Escape XLT 2008 Black PE2EV66181GG00261 L3103611331 2.3L 4X4 A/T Ford Explorer 4X2 2008 Black Clearcoat 1FMEU64EX8UA22526 8UA22526 Eddie Bauer A/T In reply, please be informed as follows. Value-added tax Exemption of the United States Diplomatic Mission Article 34 of the Vienna Convention on Diplomatic Relations reads: "ARTICLE 34 A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except: (a) indirect taxes of a kind which are normally incorporated in the price of the goods and services; TcHCIS xxx xxx xxx" Thus, the tax exemption privilege of a diplomatic mission and its diplomatic agents does not include exemption from value-added tax (VAT) on their local purchases of goods and services. In other words, purchases by a diplomatic mission, in this case the Diplomatic Mission of the United States of America (US Embassy), of goods and services shall, in general, be subject to the VAT prescribed under Sections 106 and 108, both of the National Internal Revenue Code (Tax Code) of 1997. However, applying the principle of reciprocity, the Bureau of Internal Revenue (BIR) may confirm exemption to the US Embassy on its local purchases of goods and services it appearing from the list submitted by the Department of Foreign Affairs that the Government of the United States of America allows similar exemption to the Philippine Embassy and its personnel on their purchases of goods and services in the United States. Value-added tax Exemption of USAID In relation to the foregoing, Article IV, paragraph 1 of the 1951 Agreement provides for the basis and lays down the conditions for USAID's exemption from VAT. It states: "Article IV Missions 1. The Government of the Philippines agrees to receive a Special Technical and Economic Mission which will discharge the responsibilities of the Government of the United States of America in the Philippines under this agreement and the Government of the Philippines will, upon appropriate notification from the Ambassador of the United States of America in the Philippines, consider this Mission and its personnel as part of the Diplomatic Mission of the United States of America for the purpose of enjoying privileges and immunities accorded to that Mission and its personnel of comparable rank. Such Mission shall include but not be limited to experts whose services are made available to implement Article II of this agreement." (Emphasis supplied) SCADIT In view of this, tax privileges accorded to the US Embassy and its personnel shall be extended by the Philippine Government to the Special Technical and Economic Mission of the United States of America (Mission) tasked to discharge the responsibilities of the Government of the United States of America (USA) in the Philippines under the 1951 Agreement and its personnel of comparable rank, including experts to implement USAID development assistance activities, upon appropriate Notification from the Ambassador of the USA in the Philippines, in accordance with the 1951 Agreement. 1 Pursuant to the Notification from the Ambassador of the USA to the Philippines dated December 18, 2006, the USAID is recognized as the Mission of the USA for discharging the responsibilities of the Government of the USA in the Philippines under the 1951 Agreement. For purposes of enjoying the tax privileges, the USAID, its personnel of comparable rank and its Implementing Agents recognized by the US Embassy, under Section 6 of Revenue Memorandum Circular (RMC) No. 40-2007 dated June 14, 2007, as part of USAID for purposes of implementing development assistance activities pursuant to the 1951 Agreement, shall be considered as part of the diplomatic mission entitled to direct tax exemption pursuant to the Vienna Convention on Diplomatic Relations and indirect tax exemption pursuant to the Tax Code of 1997, as amended and its implementing rules and regulations. 2 For each of USAID's activities, the USA Department of State, through USAID, will select a Contractor to serve as its Implementing Agent. The BIR shall recognize the selected Implementing Agent, excluding its personnel and staff, as part of the USAID for purposes of implementing USAID development assistance activities and shall be accorded the appropriate tax treatment under the 1951 Agreement upon receipt of a Note Verbal from the Ambassador of the US Embassy in the Philippines, duly indorsed by the DFA, with information as to the name of such person or entity, and the start and end dates for which the agency relationship is in effect. 3 Hence, under Notification from the Ambassador of the USA dated May 27, 2008, the Research Triangle Institute (RTI) is recognized as an Implementing Agent of the USAID in the Philippines, and in whose favor the BIR has issued Certification No. 2007-0008 dated September 24, 2007 confirming its status as such. As a recognized Implementing Agent, it is authorized to make local purchases of goods and services for and on behalf of the USAID and in connection with the USAID development assistance activity "Health Sector Development Program-LGU Systems Strengthening Component". Accordingly, sale of goods and services by VAT-registered suppliers to Research Triangle Institute (RTI), to be used exclusively for the "Health Sector Development Program-LGU Systems Strengthening Component", of the USAID, shall be subject to value-added tax (VAT) at zero percent (0%) rate pursuant to RMC No. 40-2007. CSTEHI Therefore, pursuant to RMC No. 40-2007, the herein purchase of locally assembled 2008 Ford Escape XLT 2.3L 4X4 A/T and 2008 Ford Explorer 4X2 Eddie Bauer A/T by the above Implementing Agent of the USAID, Research Triangle Institute (RTI), for and in behalf of the USAID and in connection with the "Health Sector Development Program-LGU Systems Strengthening Component", is subject to VAT at zero percent, provided that: the subject vehicle shall be registered in the name of USAID for the "Health Sector Development Program-LGU Systems Strengthening Component". (BIR Ruling No. ITAD-47-08 dated June 30, 2008) Furthermore, please note that all sales to the USAID's Implementing Agents in connection with the programs covered by RMC No. 40-2007 must be issued a VAT invoice/an official receipt for each sale by the VAT-registered sellers containing the following information: a. Name of seller and a statement that such seller is a VAT-registered person, followed by his Tax Identification Number (TIN); b. Name and address of the USAID implementing agent, together with the words, "USAID, by X Co., the Implementing Agent for (Name of Program/Project)"; caCEDA c. Current and valid VAT Exemption Certificate Number of USAID; d. The total amount which the purchaser pays or is obligated to pay to the seller, Provided, that (i) The amount of the VAT shall be shown as a separate item in the invoice or receipt; or (ii) The term "ZERO RATED SALE" or "EXEMPT SALE", as appropriate, is written or printed prominently on the face of the invoice/receipt; e. The date of transaction, quantity, unit cost and description of the goods or properties or nature of the services. 4 This ruling is being issued on the basis of the foregoing facts as presented. However, if upon investigation, it will be disclosed that the actual facts are different, then this ruling shall be without force and effect insofar as the herein parties are concerned. Very truly yours, (SGD.) JAMES H. ROLDAN Assistant Commissioner Legal Service Footnotes 1. Section 4, Revenue Memorandum Circular No. 40-2007. 2. Section 5, ibid. 3. Section 6, ibid. 4. Section 9, ibid.