January 5, 2007

BIR RULING [DA-005-07]

VAT & EWT DA-511-06

Isla Lipana & Co.

29th Floor, Philamlife Tower
8767 Paseo de Roxas
Makati City

Attention: Atty. Malou P. Lim

Partner

Gentlemen :

This refers to your letter dated October 23, 2006 stating that Ortigas &
Company Ltd. Partnership (OCLP) is a limited partnership duly organized and
existing under the laws of the Philippines; that it is engaged in the real estate
business which includes the leasing out of store and office spaces to various
tenants; that as an incident to the leasing out of store and office spaces, OCLP
incurs expenses for the Common Usage and Service Area (CUSA) which is for the
common benefit of the tenants, and for the costs of utilities such as electricity and
water which are directly consumed by the tenants; that the expenses for the CUSA
include electricity, water, repairs and maintenance and other costs necessary for
the maintenance and safekeeping of the common areas; that the expenses for the
CUSA incurred by OCLP are reimbursed from the tenants in proportion to the area
leased using an amount-per-square-meter basis; that regarding utility costs which
are directly consumed by the tenants, each of them has a separate sub-meter
connecting to the mother meter of OCLP; and that this becomes the basis of OCLP
in periodically billing the tenants of their respective utility consumptions.

Based on the foregoing representations, you now request confirmation of

your opinion that:

1. All monies received by OCLP from its tenants as reimbursements for

expenses incurred for the CUSA are not subject to value-added tax
(VAT) and expanded withholding tax (EWT); and

Copyright 2017 CD Technologies Asia, Inc. and Accesslaw, Inc. Philippine Taxation Encyclopedia (2017.1) 1
 2. All monies received by OCLP for utilities and services (water,
electricity, etc.) costs directly attributable to the tenants are not
subject to VAT and EWT.

In reply thereto, please be informed that this Office, in BIR Ruling No.
DA-511-06 dated August 25, 2006 citing BIR Ruling No. DA-76-06 dated March
3, 2006, already ruled on the matter, to wit:

". . . monies received by TPI from its tenants as payments for direct utilities
and services are not subject to VAT and EWT.

"Reimbursement of expenses, by its very nature, is not income but merely a

return of capital. As a return of capital, it is not income payment per se.
Such being the case, it is not subject to income tax.

"In the case at bar, the expenses directly and indirectly attributable to TPI's
tenants are billed to its various tenants depending on their levels of
consumption. These amounts are actually payments for such direct and
indirect expenses. As such, they are not income payments subject to income
and withholding tax. IcHSCT

Further, in BIR Ruling No. 384-98, the BIR ruled as follows:

'In reply, please be informed that your opinion is hereby confirmed. By its
very nature, reimbursements of costs are not income for they are mere
returns of capital. Accordingly, said reimbursements are not subject to
withholding tax prescribed under Revenue Regulations No. 2-98. (BIR
Rulings Nos. UN262-95 dated July 11, 1995; UN245-95 dated July 5,
1995; 1-90 dated January 4, 1990; 345-88 dated July 20, 1988; 202-81
dated October 22, 1981 and 061-79 dated July 23, 1979)'

"Accordingly, and on the basis of the foregoing, your opinion that monies
received by TPI from its tenants for payments of direct utilities and services
are not subject to VAT and EWT is hereby confirmed. cIADaC

"Furthermore, in the case of Commissioner of Internal Revenue vs. Manila

Jockey Club, Inc., 108 Phil. 821, no less than the Supreme Court
categorically ruled that monies received by the Manila Jockey Club in trust
for the account of the owners of winning horses do not form part of the
gross receipts of the club since the same never belonged to it. Thus, the
Court held: ICHDca

'There is no question that the Manila Jockey, Inc., owns only 7-1/2% of the
total bets registered by the Totalizer. This portion represents its share or
commission in the total amount of money it handles and goes to the funds
thereof as its own property which it may legally disburse for its own
Copyright 2017 CD Technologies Asia, Inc. and Accesslaw, Inc. Philippine Taxation Encyclopedia (2017.1) 2
 purposes. The 5% does not belong to the club. It is merely held in trust for
distribution as prizes to the owners of winning horses. It is destined for no
other object than the payment of prizes and the club cannot otherwise
appropriate this portion without incurring liability to the owners of winning
horses. It cannot be considered as an item of expense because the sum used
for the payment of prizes is not taken from the funds of the club but from a
certain portion of the total bets especially earmarked for the purpose. DISTcH

'In view of all the foregoing, I am of the opinion that in the submission of
the returns for the amusement tax of 10% (now it is 20% of the gross
receipts', provided for in Section 260 of the National Internal Revenue
Code), the 5% of the total bets that is set aside for prizes to owners of
winning horses should not be included by the Manila Jockey Club, Inc.'

"The same view was reiterated by the Supreme Court in the case of
Commissioner of Internal Revenue vs. Tours Specialists, Inc., 183 SCRA
402, when it ruled that monies or receipts entrusted to the taxpayer which
do not belong to them or do not redound to the taxpayer's benefit do not
form part of gross receipts subject to the 3% independent contractor's tax
under the National Internal Revenue Code of 1977. Thus, the court held:
IEDaAc

'Parenthetically, the room charges entrusted by the foreign travel agencies

to the private respondent do not form part of its gross receipts within the
definition of the Tax Code. The said receipts never belonged to the private
respondent. The private respondent never benefited from their payment to
the local hotels. As stated earlier, this arrangement was only to
accommodate the foreign travel agencies.'

Likewise in BIR Ruling No. DA316-03, the Bureau, applying the

abovementioned court pronouncements, ruled that the amounts received by a
domestic corporation to be held in trust for a foreign corporation do not form part
of the taxable gross receipts even for purposes of the value-added tax. Thus, the
Bureau held:

"Inasmuch as being an agent, you only represent your principal your

collections from tickets and airway bills sold do not form part of your
taxable gross receipts as the same are collected and held in trust for and in
its behalf. In short, the same is not your revenue but rather that of your
principal. Hence, your taxable gross receipts (is) limited to 3%
compensation for services rendered. Furthermore, it appears that you
deduct your compensation from the sales proceeds of tickets and airway
bills sold and remit to your principal on monthly basis. Thus, said
compensation is taxable as your receipts during the taxable quarter in which
collections of sales proceeds were made. SCEDAI

Copyright 2017 CD Technologies Asia, Inc. and Accesslaw, Inc. Philippine Taxation Encyclopedia (2017.1) 3
 "Such being the case, considering that ASPAC merely holds the freight
service charges for and in behalf of its principal, UPS Yamato, the same
should not be included in its gross receipts for purposes of value-added tax
and income tax. It is only the collection fee of 5% based on the freight
charges that should be recognized as revenue for ASPAC includible in its
gross receipts.

"In the case at bar, TPI never benefited from the monies received from its
tenants as these are ultimately payments to utility companies. The monies
received by TPI exclusively pertained payments for the direct utilities and
services incurred. In short, TPI never received any income from the
transaction which can be subject of any tax. HAEIac

"Accordingly, your opinion that the monies received by TPI from its
tenants as payment for Common Usage and Service Area (CUSA) expenses
are not subject to VAT and EWT is hereby confirmed." DIECTc

In view of the foregoing, this Office hereby confirms your opinion that:

1. All monies received by OCLP from its tenants as reimbursements for

expenses incurred for the CUSA are not subject to VAT and EWT;
and

2. All monies received by OCLP for utilities and services (water,

electricity, etc.) costs directly attributable to the tenants are not
subject to VAT and EWT.

This ruling is being issued on the basis of the foregoing facts as

represented. However, if upon investigation, it will be disclosed that the facts are
different, then this ruling shall be considered null and void.

Very truly yours,

(SGD.) JAMES H. ROLDAN

Assistant Commissioner
Legal Service
Bureau of Internal Revenue

Copyright 2017 CD Technologies Asia, Inc. and Accesslaw, Inc. Philippine Taxation Encyclopedia (2017.1) 4