Republic of the Philippines

COURT OF TAX APPEALS

Quezon City

SPECIAL SECOND DIVISION

OAKWOOD MANAGEMENT CTA Case No. 798 9

SERVICES (PHILIPPINES) , INC.,

Petitioner,
Members:
CASTANEDA, JR., Chairperson
-versus- CASANOVA, and
MINDARO -GRULLA, JL

COMMISSIONER OF INTERNAL Promulgated:

REVENU E,
Respondent. AUG 0 8 2013
/
t7 1.'11 ,.,...
x------------------------------------------------------------------------------------------x

DECISION

CASANOVA,.L.:

This is a Petition for Review, 1 filed by petitioner-Oakwood

Management Services (Philippines), Inc., seeking the cancellation of
respondent's Formal Assessment Notice (FAN) dated January 14, 2009,
assessing petitioner for: (a) deficiency income tax; (b) deficiency value-
added tax (VAT); (c) deficiency final withholding of VAT (Final VAT); (d)
deficiency expanded withholding tax (EWT); (e) deficiency final
withholding tax (FWT); (f) deficiency documentary stamp tax (DST) on
subscribed capital stock; (g) deficiency documentary stamp tax on
petitioner's "Due to Affiliates"; (h) compromise penalty for violation of
Section 255 of the National Internal Revenue Code (NIRC) of 1997, as
amended, in relation to petitioner's alleged failure to file certain tax
returns.#---

1
Docket, pp. 1-33 .
DEC ISION
CT A CASE NO . 7989
Page 2 of4 3

Petitioner is a corporation duly organized and existing under and

by virtue of the laws of the Republic of the Philippines, with principal
office located at 25th Floor, 88 Corporate Center, 141 Valero Street cor.
Sedefio Street, 1229 Makati City.z

Respondent is duly appointed to perform the duties of her office,

including, inter alia, the power to decide disputed assessments, subject
to the exclusive appellate jurisdiction of this Court, pursuant to Section
4 of the NIRC of 1997, as amended. She holds office at the 5th Floor,
Bureau of Internal Revenue (BIR), National Office Building, BIR Road,
Diliman, Quezon City. 3

Respondent issued a Letter of Authority (LOA) No. 00046254 4

dated November 28, 2006 duly authorizing Revenue Officer Emma L.
Pascual and Group Supervisor Crisanto Q. Calvarido, Jr. to examine the
books of accounts and other accounting records of petitioner for all
internal revenue taxes for taxable year ending December 31, 2005.
Attached to the said LOA is a Checklist of Requirements 5 dated
November 28, 2006, requiring petitioner to submit vital documents
needed in the examination of internal revenue taxes for taxable year
ending December 31, 2005.6

On February 20, 2007, respondent issued the Second Notice dated

February 1, 2007, requiring petitioner to submit for the second time the
required records for 2005 enumerated under the Checklist of
Requirements.?

On April 2, 2007, petitioner, in compliance with the LOA No.

00046254 dated November 28, 2006, Checklist of Requirements dated
November 28, 2006 and Second Notice dated February 1, 2007,
submitted certain documents enumerated in its Transmittal Letter
dated April 2, 2007, through its authorized representative, Alana Q.
Macinas of Pro books Outsourcing, Inc.s

Petitioner's Annual ITR (BIR Form No. 1702), Quarterly ITR (BIR
Form 1702Q), Quarterly VAT Returns (BIR Form 2550Q), Monthly VAT
Declarations (BIR Form 2550M), Monthly Remittance Return of Fina..k,_
2
Par. I, Facts Adm itted in Respondent's An swer and Pre-Trial Brief, (Facts Admitted), Joint Stipulation of
Facts and Issues (JSF I), Ib id, p. 269.
3
Pars. 3 and 4, Facts Admitted , JSFI, Id, 270.
4
Exhibit "2".
5
Exh ib it "3".
6
Par. 15, Facts Stipulated on at the Pre-Trial Conference, JSF I, Id, p. 273; Exhibits "2-B" and "3-B".
7
Par. 17, Facts Stipu lated on at the Pre-Trial Conference, JSF I, Id, p. 273; Ex hibits "4" to "4- B" .
8
Par. 18, Facts Stipu lated on at the Pre-Trial Conference, JSF I, Id, p. 273.
DECISION
CT A CASE NO. 7989
Page 3 of 43

Income Tax (BIR Form No. 1601-F), Monthly Remittance Return of

Creditable Income Taxes Withheld (BIR Form 1601-E) and Annual
Information Return of Creditable Taxes Withheld (BIR Form 1604-E) for
taxable year 2005 which were all filed with the BIR bear its BIR-
registered address located at 6/F Glorietta 4, Ayala Center, Makati City. 9

On January 6, 2009, petitioner received by mail the Preliminary

Assessment Notice (PAN) with attached Details of Discrepancies all
dated December 23, 2008, 10 assessing it of the following deficiency taxes
and penalties summarized below:

Assessment Notice Tax Due Surcharge (50%)/ Total Amount Due

for Deficiency Penalty Interest
Taxes/Penalties
(a) Income Tax p 3,639,894.95 p 1, 984,490.6 7 p 5,624,385.61
(b) VAT 16,000.00 9,275.62 25,275.62
(c) Final VAT 600,000.00 508,356.16 1,108,356.16
(d) EWT 58,487.74 34,772.16 93,259.90
(e) FWT 1,920,000.00 1,621,4 79.45 3,541,4 79.45
(f) DST on subscribed 39,600.00 40,907.34 80,507.34
capital stock
(g) DST on Due to 1,011.30 1,044.69 2,055.99
affiliates
(h) Penal ty for failure 59,400.00
to file returns
Total Amount Payable p 10,534,720.07

On January 16, 2009, or ten (10) days after the receipt of the said
PAN and before the lapse of the 15-day reglementary period for
petitioner to respond to the PAN, petitioner received the Final
Assessment Notice (FAN) dated January 14, 2009.1 1 The details 12 of the
taxes and penalties assessed and sought to be collected from petitioner
are as follows:

Assessment Tax Due 25% Interest Total Amount Due

Notice for Surcharge (up to 2.16.09)
Deficiency
Taxes/Penalties
(a) Income Tax p 3,639,894.95 p 2,068,258.11 P5,708,153.06
(b) VAT 16,000.00 9,792.88 25,792 .88
(c) Final VAT 600,000.00 P150,000 372,164.38 1,122,164.38
(d) EWT 58,487.74 36,118.18 94,605.92
_L~_ FWT 1,920,000.00 480,000.00 1,185,665.75 3,585,665.75
(f) DST on 39,600.00 9,900.00 31,918.68 81,418.68
subscribed
capital stock
(g) DST on 1,011.30 252.83 815.14 2,079.27
balance of due to
.-
9
Par. 19, Facts Stipu lated on at the Pre-Tria l Conference, JSFI , ld, pp. 273-274.
10
Par. 5, Facts Admitted, JSFI , Id, p. 270 .
11
Par. 15, Petition for Review, ld, p. 5.
12
Exhi bits "C" to "C-4".
DECISION
CT A CASE NO. 7989
Page 4 of43

affiliates
(h) Compromise 59,400.00
Penalty
Total Amount Payable p 10,679,279.94

On January 21, 2009, within the 15-day reglementary period,

petitioner filed its answer to the PAN, disputing the assessments stated
therein by submitting Reply Letters dated January 19, 2009 and January
21, 2009.1 3

On February 13, 2009, petitioner filed its protest to the FAN. 14 In a

transmittal letter dated April 7, 2009, petitioner submitted the relevant
documents in support of its protest to the FAN and the same was
received by respondent on April 8, 2009.15

Due to respondent's failure to make a decision within the

reglementary period provided for by law, petitioner filed the instant
petition before this Court.

In her Answer 16 filed on January 15, 2010, respondent raised the

following special and affirmative defenses:

"7. He reiterates and repleads the preceding

paragraphs of this Answer as part of his Special and
Affirmative Defenses;

8. Under Section 228 of the 1997 Tax Code, it is

partly provided that:

"Sec. 228. Protesting of Assessment. -

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." (Emphasis supplied)~

13
Par. 6, Facts Admitted , JSFI , Id, p. 270; Ex hibits "E" to "F- I".
14
Par. I 0, Petition for Review, Id, p. 4; Exhibits " H" and " H-I ".
15
Exhibits " I" and " I- I".
16
Docket, pp. 200-206.
DEC ISION
CT A CASE NO. 7989
Page 5 of 43

In the instant case, under paragraph 2 of the

Petition for Review filed by petitioner, the latter
categorically stated and admitted that: The Protest Letter
was filed to administrative{y protest the Formal Assessment
Notice issued by the respondent dated 14 January 2009 and
received by Petitioner on 16 February 2009 (hereinafter
referred to as 'FAN).

Premised from the foregoing, since petitioner

received the subject Formal Assessment Notice (FAN)
issued by the respondent dated 14 January 2009, on
February 16. 2009, (sic) 17 pursuant to Section 228 of the
1997 Tax Code, petitioner has thirty (30) days from
February 16. 2009 or until March 18. 2009, within which to
file an administrative protest. The fact, that petitioner failed
to file an administrative protest with the BIR within the 30-
day period, that is, from February 16, 2009 to March 18,
2009, therefore, the subject deficiency income tax, value-
added tax, final withholding of value-added tax, expanded
withholding tax, final withholding tax, documentary stamp
tax on subscribed capital stock, documentary stamp tax on
petitioner's due to affiliates account and compromise
penalties for taxable year 2005 has already become final,
executory and demandable. As such, this Honorable Court
has no jurisdiction to act on the instant Petition for Review.

9. The Supreme Court in the case of Ker & Company,

Ltd. vs. CTA, et al., L-12396, January 31, 1962 and
Commissioner of Internal Revenue vs. Joseph, et al., L-
14034, August 30, 1962, has ruled that:

'If a statutory remedy provides as

condition precedent that the action to enforce
must be commenced within a prescribed time,
such requirement is jurisdictional and failure to
comply therewith may be raised in a motion to
dismiss.'

10. The Letter of Authority issued by the respondent

to herein petitioner for examination of all its internal
revenue taxes for taxable year 2005 was validly served and
received by petitioner through its authorized6Z-

17
Should be January 16, 2009 based on the Re-Direct Examination of Ma. Richelle Aritalla by Atty.
Lovely E. Lim of Transcript of Stenographic Notes Taken During the Hearing on July 21, 20 I0, pp. 21
and 22.
DEC ISION
CT A CASE NO. 7989
Page 6 of43

representatives within thirty (30) days from the date it was

issued.

11. The Letter of Authority issued by the respondent

was valid and binding upon herein petitioner. Under BIR
Ruling No. DA-121-01 dated July 18, 2001, which
squarely answers the issues raised by herein petitioner, the
Commissioner of Internal Revenue, clearly states that:

"Nowhere from RMO No. 12-98. or any

other internal revenue issuances on audit
programs and policies. is it mentioned that the
lapse of 120-days from the date the revenue
examiner received the Letter of Authority and
the failure of the said examiner to secure a
revalidation within the said 120-days (sic)
period will give rise to the taxpayer's immunity
from audit for that particular period. The
requirement is merely directory and is
intended to enhance efficiency while at the
same time ensure quality audit. It does not in
any way affect the right of the government to
issue assessment notices for deficiency taxes
within the periodjs set forth by law.' Thus, at
any time within the regular three year
prescriptive period for issuing assessment
notices under Section 203 of the Tax Code, the
Commissioner or his duly authorized
representative, in this case the Regional
Director, may still issue an order revalidating
Letter of Authority No. 000015124.' [Emphasis
supplied]

Likewise, in the most recent Revenue Memorandum

Circular (RMC) No. 23-2009 dated 16 April 2009
(Reiteration of Policies and Procedures Relative to
Revalidation of Letters of Authority, Issuance of Subpoena
Duces Tecum, and Review of Cases by the Assessment
Division), the Commissioner of Internal Revenue clearly
stated that:

"The revalidation of LA shall give rise to

the extension of the period within which the
Revenue Officer (RO) assigned to the case shall
submit the report of investigation to the higher
authorities for review and approval. withou~
DEC ISION
CT A CASE NO. 7989
Page 7 of43

the imposition of applicable administrative

sanctions. Depending on the classification of the
pending tax case, said extension period shall be
equivalent to the original prescribed number of
days within which to report the case under
existing revenue issuances. Failure on the part
of the RO to request for the revalidation of LA
or the expiration of the 'revalidation period'
does not nullify the LA nor will it affect or
modify the rules on the reglementary period
within which an assessment may be validly
issued.'[Emphasis supplied]

12. Petitioner was assessed for deficiency income tax,

value-added tax, final withholding of value-added tax,
expanded withholding tax, final withholding tax,
documentary stamp tax on subscribed capital stock,
documentary stamp tax on petitioner's due to affiliates
account and compromise penalties for taxable year 2005,
for the reason that during the administrative investigation
of its tax case by the BIR, petitioner failed to substantiate or
controvert by concrete evidence the BIR findings, as shown
under the Details of Discrepancies attached to the Formal
Assessment Notice (FAN) dated January 14, 2009, and the
Preliminary Assessment Notice (PAN) dated December 23,
2008, which are briefly discussed hereunder, viz:

A.) Income Tax:

1. Petitioner failed to properly withhold and

remit the expanded withholding tax due on its income
payments pursuant to Section 57 and 58 of the 1997
Tax Code. Hence its claimed expenses in the amount
of P7,635,580.60 were disallowed pursuant to Section
34(K) of the same Code.

2. Petitioner failed to provide supporting

evidence on its claimed creditable withholding tax in
the amount of P2,425,703.00, hence, the same was
disallowed pursuant to Section 2.58.3 of Revenue
Regulations No. 2-98;

3. Petitioner's Annual Income Tax Return

reflected a tax credit in the amount of P2,364,787.00
to be carried over to the succeeding yearsjs.
Considering that the tax benefit of this amount h a~
DEC IS ION
CT A CASE NO. 7989
Page 8 of43

already been forwarded to the succeeding periods as

provided under Section 76(B) of the 1997 Tax Code
and Section 2.58(C) of Revenue Regulations No. 2-98,
the same has been disallowed for the current year to
recapture the tax benefit thereon.

B.) Value-Added Tax:

1. Petitioner failed to present any document to

support its claimed input taxes of P16,000.00, that the
same came from a VAT Registered Entity, hence, the
amount of P16,000.00 was disallowed pursuant to
Section 110 ofthe 1997 Tax Code.

C.) Final Withholding of Value-Added Tax:

1. Petitioner failed to subject to withholding tax

of value-added tax the income payments on
management services rendered by a parent non-
resident foreign corporation amounting to
P6,000,000.00, thus, it was assessed pursuant to
Section 4.114 of Revenue Regulations No. 2-98, as
amended by Section 7 of Revenue Regulations No. 14-
2002.

D.) Expanded Withholding Tax:

1. Petitioner failed to remit the corresponding

withholding tax on the income payments for
professional fees in the amount of P322,201.60 and
Marketing Expense in the amount of P1,313,379.00,
hence, it is liable to pay a deficiency EWT pursuant to
Section 2.57.2 of Revenue Regulations No. 2-98.

E.) Final Withholding Tax:

1. Petitioner failed to remit the corresponding

withholding tax on the income payments for
management services in the amount of
P6,000,000.00, hence, it is liable to pay a deficiency
FWT pursuant to Section 28(B) of the 1997 NIRC.

F.) Documentary Stamp Tax:

1. Petitioner failed to pay the documentary

stamp tax on subscribed and paid up capital stockt?-
DEC ISION
CT A CASE NO. 7989
Page 9 of43

amounting to P7,920,000.00, hence, it is assessed for

deficiency DST in the amount of P39,600.00, pursuant
to Section 175 of the 1997 NIRC.

2. Petitioner failed to remit the documentary

stamp tax on due to affiliated companies, hence, it is
assessed for deficiency DST in the amount of
Pl,011.08, pursuant to Section 180 of the 1997 NIRC.

G.) Compromise Penalty:

1. Petitioner was suggested to pay the

compromise penalties in the aggregate amount of
P59,400.00, in lieu of criminal prosecution since it
failed to file the withholding tax on compensation
returns and pay the corresponding withholding of
value-added tax, final withholding tax on
management fees rendered by non-resident
corporations and documentary stamp tax due on
subscribed capital stock and loans from affiliated
company pursuant to Section 255 of the 1997 Tax
Code.

13. Respondent fully complied with the due process

requirement mandated under Section 228 of the 1997 Tax
Code, as implemented by Revenue Regulations No. 12-99,
when the disputed Preliminary Assessment Notice (PAN)
dated December 23, 2008 and Formal Assessment Notice
(FAN) dated January 14, 2009 was issued to herein
petitioner. Records clearly show that petitioner was duly
afforded an opportunity to controvert the initial findings of
the respondent on its deficiency taxes for taxable year 2005
through the issuance of a Notice for Informal Conference
and Preliminary Assessment Notice (PAN) dated December
23, 2008. Likewise, petitioner was duly appraised by the
respondent of the factual and legal basis (sic) on how and
why he (respondent) arrived such (sic) a deficiency income
tax, value-added tax, final withholding of value-added tax,
expanded withholding tax, final withholding tax,
documentary stamp tax on subscribed capital stock,
documentary stamp tax on petitioner's due to affiliates
account and compromise penalties for taxable year 2005
through the issuance of the Details of Discrepancies
attached to the Formal Assessment Notice (FAN) dated
January 14, 2009, and the Preliminary Assessment Notice
(PAN) dated December 23, 2008, as well as other BI ~
DEC ISJON
CT A CASE NO . 7989
Page 10 of43

Correspondence to petitioner which are found in the BIR

records of this case.

14. The assessments issued against petitioner for

deficiency income tax, value-added tax, final withholding of
value-added tax, expanded withholding tax, final
withholding tax, do cumentary stamp tax on subscribed
capital stock, documentary stamp tax on petitioner's due to
affiliates account and compromise penalties for taxable
year 2005 were made in accordance with law and
regulations.

15. All presumptions are in favor of the correctness of

tax assessments issued by the respondent.

During trial, both parties submitted their respective testimonial

and documentary evidence. Thereafter, the case was submitted for
decision on August 17, 20 12, taking into consideration petitioner's
Memorandum, filed on August 2, 2012 and respondent's Manifestation
and Motion, filed on August 3, 2012, stating that she is adopting all her
arguments (factual and legal) and affirmative defense found in her
Answer dated January 14,2010 as part of her Memorandum.

The issues, as stated in the Joint Stipulation of Facts and Issues,

are as follow:

A.

1. WHETHER OR NOT PETITIONER FILED THE

ADMINISTRATIVE PROTEST AGAINST THE FORMAL
ASSESSMENT NOTICE DATED 14 JANUARY 2009
WITHIN THE THIRTY (30) -DAY PERIOD UNDER
SECTION 228 OF THE TAX CODE.

2 . WHETHER OR NOT THIS HONORABLE COURT HAS

JURISDICTION TO TAKE COGNIZANCE OF THIS
PETITION FOR REVIEW

B.

1. WHETHER OR NOT THE RIGHT OF PETITIONER TO

DUE PROCESS WAS VIOLATED BY RESPONDENT
WHEN -..6--
DEC ISION
CT A CASE NO . 7989
Page II of43

i. RESPONDENT ALLEGEDLY FAILED TO ISSUE A

NOTICE OF PRELIMINARY CONFERENCE TO
PETITIONER AND TO ACTUALLY HOLD SUCH
PRELIMINARY CONFERENCE; AND

ii. RESPONDENT ALLEGEDLY ISSUED THE FORMAL

ASSESSMENT NOTICE BEFORE THE LAPSE OF THE
15-DAY PERIOD FROM DATE OF RECEIPT OF
PRELIMINARY ASSESSMENT NOTICE GRANTED BY
LAW FOR PETITIONER TO RESPOND TO THE
PRELIMINARY ASSESSMENT NOTICE;

2. WHETHER OR NOT RESPONDENT HAS COMPLIED

WITH THE DUE PROCESS REQUIREMENTS
MANDATED UNDER SEC. 228 OF THE TAX CODE, AS
IMPLEMENTED BY REVENUE REGULATIONS NO. 12-
99, PRIOR TO THE ISSUANCE OF PRELIMINARY
ASSESSMENT NOTICE DATED 23 DECEMBER 2009 18
(sic) AND FORMAL ASSESSMENT NOTICE DATED 14
JANUARY 2009.

3. WHETHER OR NOT PETITIONER WAS FULLY

APPRAISED (sic) BY RESPONDENT ON THE FACTUAL
AND LEGAL BASIS HOW AND WHY RESPONDENT
ARRIVED AT SUCH A DEFICIENCY INCOME TAX,
VALUE ADDED TAX, FINAL WITHHOLDING OF VALUE
ADDED TAX, EXPANDED WITHHOLDING TAX, FINAL
WITHHOLDING TAX, DOCUMENTARY STAMP TAX ON
SUBSCRIBED CAPITAL STOCK, DOCUMENTARY
STAMP TAX ON PETITIONER'S DUE TO AFFILIATES
ACCOUNT AND COMPROMISE PENAL TIES ASSESSED
AGAINST PETITIONER FOR TAXABLE YEAR 2005;

c.
WHETHER OR NOT PETITIONER IS LIABLE TO PAY -

i. DEFICIENCY INCOME TAX AND RELATED

INTEREST THEREON, IN THE AGGREGATE
AMOUNT OF PHP5,708,153.06;

ii. DEFICIENCY VALUE-ADDED TAX AND RELATED

INTEREST THEREON, IN THE AGGREGATE
AMOUNT OF PHP25,792.88; ~

18
Should be 2008.
DEC ISION
CT A CASE NO. 7989
Page 12 of43

iii. DEFICIENCY FINAL WITHHOLDING VALUE-

ADDED TAX AND RELATED SURCHARGE AND
INTEREST THEREON, IN THE AGGREGATE
AMOUNT OF PHP1,122,164.38

iv. DEFICIENCY EXPANDED WITTHOLDING TAX

AND RELATED INTEREST THEREON IN THE
AGGREGATE AMOUNT OF P94,605.92, ON
SPECIFIC PAYMENTS MADE TO THIRD PARTIES;

v. DEFICIENCY FINAL WITHHOLDING TAX AND

RELATED SURCHARGE AND INTEREST THEREON,
IN THE AGGREGATE AMOUNT OF
PHP3,585,665. 75;

vi. DEFICIENCY DOCUMENTARY STAMP TAX ON

SUBSCRIBED CAPITAL STOCK AND RELATED
SURCHARGE AND INTEREST THEREON, IN THE
AGGREGATE AMOUNT OF PHP81,418.68;

vii. DEFICIENCY DOCUMENTARY STAMP TAX ON

BALANCE OF DUE TO AFFILIATES ACCOUNT AND
RELATED SURCHARGE AND INTEREST THEREON,
IN THE AGGREGATE AMOUNT OF PHP2,079.27;
AND

viii. COMPROMISE PENALTY OF P59,400.00 FOR

ALLEGED FAILURE TO FILE RETURNS IN
VIOLATION OF SECTION 255 OF THE TAX CODE.

The Court shall discuss the issues in seriatim.

Whether or not petitioner filed

the administrative protest
against the FAN within the 30-
day period

To resolve this issue, Section 228 of the NIRC of 1997, as

amended, is instructive, viz.:

"Such assessment may be protested

administratively by filing a request for
reconsideration or reinvestigation within thirty (30)~
DEC ISION
CT A CASE NO. 7989
Page 13 of43

days from receipt of the assessment in such form and

manner as may be prescribed by implementing rules
and regulations."

In conjunction therewith, Section 3.1.5 of Revenue Regulations

No. 12-99 provides:

"3.1.5 Disputed Assessment. - The taxpayer or

his duly authorized representative may protest
administratively against the aforesaid formal letter of
demand and assessment notice within thirty (30)
days from date of receipt thereof. If there are several
issues involved in the formal letter of demand and
assessment notice but the taxpayer only disputes or
protests against the validity of some of the issues
raised, the taxpayer shall be required to pay the
deficiency tax or taxes attributable to the undisputed
issues, in which case, a collection letter shall be
issued to the taxpayer calling for payment of the said
deficiency tax, inclusive of the applicable surcharge
and/or interest. No action shall be taken on the
taxpayer's disputed issues until the taxpayer has paid
the deficiency tax or taxes attributable to the said
undisputed issues. The prescriptive period for
assessment or collection of the tax or taxes
attributable to the disputed issues shall be
suspended.

The taxpayer shall state the facts, the applicable

law, rules and regulations, or jurisprudence on which
his protest is based, otherwise, his protest shall be
considered void and without force and effect. If there
are several issues involved in the disputed
assessment and the taxpayer fails to state the facts,
the applicable law, rules and regulations, or
jurisprudence in support of his protest against some
of the several issues on which the assessment is
based, the same shall be considered undisputed issue
or issues, in which case, the taxpayer shall be
required to pay the corresponding deficiency tax or
taxes attributable thereto. The taxpayer shall submit
the required documents in support of his protest
within sixty (60) days from date of filing of his letter
of protest, otherwise, the assessment shall become
final, executory and demandable. The phrase 'submi ~
DEC ISION
CT A CASE NO. 7989
Page 14 of43

the required documents' includes submission or

presentation of the pertinent documents for scrutiny
and evaluation by the Revenue Officer conducting the
audit. The said Revenue Officer shall state this fact in
his report of investigation.

If the taxpayer fails to file a valid protest against

the formal letter of demand and assessment notice
within thirty (30) days from date of receipt thereof,
the assessment shall become final, executory and
demandable."

In the instant case, it should be recalled that in respondent's

Answer dated January 15, 2010, which she adopted as part of her
Memorandum, she stated that "under paragraph 2 of the Petition for
Review filed by petitioner, the latter categorically stated and admitted
that: 'The Protest Letter was filed to administratively protest the Formal
Assessment Notice issued by the respondent dated 14 lanuary 2009 and
received by Petitioner on 16 February 2009 {hereinafter referred to as
"FAN'J Premised from the foregoing, since petitioner received the
subject Formal Assessment Notice (FAN) issued by the respondent
dated 14 January 2009, on February 16, 2009, pursuant to Section 228
of the 1997 Tax Code, petitioner has thirty (30) days from February 16.
2009 or until March 18. 2009, within which to file an administrative
protest. The fact, that petitioner failed to file an administrative protest
with the BIR within the 30-day period, that is, from February 16, 2009
to March 18, 2009, therefore, x x x this Honorable Court has no
jurisdiction to act on the instant Petition for Review."

However, after a careful perusal of the records of the case, this

Court finds that petitioner received the FAN on January 16, 2009 and
not on February 16, 2009, as shown in the the Re-Direct Examination of
Ma. Richelle Aritalla, by Atty. Lovely E. Lim, to wit:

"Atty. Lim

In the Petition for Review particularly paragraph 2 that

respondent's counsel had been identified, it was
stated that the protest letter was filed
administratively to protest the Formal Assessment
Notice of respondent dated January 14, 2009 and
received by petitioner on 16 February 2009 ~
DEC ISION
CT A CASE NO. 7989
Page 15 of43

Q Is this statement from your personal knowledge true

and correct?

MS. ARITALLA

A No, Ma'am.

ATTY. LIM

Q what should be the true statement?

MS. ARITALLA

A January 16, 2009

ATTY. LIM

Q Is the?

MS. ARITALLA

A Is the day that I received the formal Assessment

Notice". 19

As can be gleaned from the foregoing testimony, petitioner

received the FAN on January 16, 2009. Reckoned from January 16, 2009,
petitioner had 30 days or until February 15, 2009, within which to file
its administrative protest. Records show that petitioner filed its protest
to the FAN, thru a letter 2o dated February 11. 2009 addressed to Ms. Ma.
Nieva A. Guerrero, OIC-Regional Director of Revenue Region No.8 which
was received by respondent on February 13, 2009. Thus, pursuant to
Section 228 and Section 3.1.5 of Revenue Regulations No. 12-99,
petitioner's administrative protest was timely filed.

Whether or not this

Honorable Court has
jurisdiction to take
cognizance of this Petition
for Review

Section 228 of the NIRC of 1997, as amended, further states:E:P-

19
Re-Direct Examination of Ms. Ma. Richelle Aritalla (Petitioner' s Witness) by Atty. Lovely E. Lim
(Counsel for the Petitioner), Transcript of Stenographic Notes Taken During the Hearing on July 21 , 20 I 0,
pp. 21-22.
20
Exhibit " H".
DEC ISION
CT A CASE NO. 7989
Page 16 of43

"x x x 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."

Here, records reveal that on February 11, 2009, petitioner

seasonably filed its protest to the FAN and, subsequently, in a
transmittal letter 21 dated April 7, 2009, petitioner submitted the
relevant documents in support of its protest and said documents were
received by respondent on April 8, 2009. Applying Section 228,
respondent had 180 days or until October 5, 2009 to act on the said
protest. However, respondent failed to make a decision within the
reglementary period provided by law, thus, petitioner had thirty (30)
days from October 5, 2009 or until November 4, 2009 within which to
appeal respondent's inaction before this Court. Records show that
petitioner filed its Petition for Review on November 4, 2009. Thus, this
Court has jurisdiction to take cognizance of this Petition for Review.

Whether or not the right of petitioner

to due process was violated by
respondent when the latter allegedly
failed to issue a Notice of Preliminary
Conference to petitioner and to
actually hold such preliminary
conference

Section 3 of Revenue Regulations No. 12-99 provides:

"SECTION 3. Due Process Requirement in the

Issuance of a Deficiency Tax Assessment. -

3.1 Mode of procedures in the issuance of a deficiency

tax assessment: ~

21
Exhib its " I" and " 1-1 ".
DECISION
CTA CASE NO. 7989
Page 17 of43

3.1.1 Notice for informal conference. - The Revenue

Officer who audited the taxpayer's records shall, among
others, state in his report whether or not the taxpayer
agrees with his findings that the taxpayer is liable for
deficiency tax or taxes. If the taxpayer is not amenable,
based on the said Officer's submitted report of
investigation. the taxpayer shall be informed, in writing. by
the Revenue District Office or by the Special Investigation
Division, as the case may be (in the case of Revenue
Regional Offices) or by the Chief of Division concerned (in
the case of the BIR National Office) of the discrepancy or
discrepancies in the taxpayer's payment of his internal
revenue taxes, for the purpose of 'Informal Conference.' in
order to afford the taxpayer with an opportunity to present
his side of the case. If the taxpayer fails to respond within
fifteen (15) days from date of receipt of the notice for
informal conference, he shall be considered in default, in
which case, the Revenue District Officer or the Chief of the
Special Investigation Division of the Revenue Regional
Office, or the Chief of Division in the National Office, as the
case may be, shall endorse the case with the least possible
delay to the Assessment Division of the Revenue Regional
Office or to the Commissioner or his duly authorized
representative, as the case may be, for appropriate review
and issuance of a deficiency tax assessment, if warranted."
(Underscoring ours)

Based on the above-quoted Section 3.1.1 of Revenue Regulations

No. 12-99, what is important, to constitute a valid notice of informal
conference, is not the mere issuance of the "notice of informal
conference" but the (a) report of the BIR officer making the audit of the
taxpayer's records; and (b) written notice informing the taxpayer of the
discrepancy or discrepancies in the payment his income tax.

In the instant case, respondent complied with all the

requirements for a valid notice of informal conference. Respondent's
officer who conducted the audit of petitioner's records issued a
memorandum report 22 dated October 15, 2007 stating therein the
result of his investigation and attaching thereto the details of
discrepancies 2 3 showing the factual and legal bases of his findings.
Furthermore, petitioner also received a Post Reporting Notice from th ~

22
Exh ibits "6".
23
Exhibit "6- B".
DEC ISION
CT A CASE NO. 7989
Page 18 of43

respondent showing the discrepancies in the payment of its taxes. 24

Petitioner, therefore, was given the opportunity to refute respondent's
findings which, unfortunately it failed to do so. Hence, this Court cannot
accept petitioner's contention that it was not given a notice of informal
conference and that no informal conference was ever conducted.
Clearly, respondent has complied with the due process requirements
mandated by law prior to the issuance of the PAN dated December 23 ,
2009 and Formal Assessment Notice dated January 14, 2009.

Whether or not the right of petitioner

to due process was violated by
respondent when the latter allegedly
issued the FAN before the lapse of the
15-day period from the date of receipt
of the preliminary assessment notice
granted by law for petitioner to
respond to the Preliminary Assessment
Notice.

As previously stated, on January 16, 2009, or ten (10) days after

the receipt of the PAN on January 6, 2009, and before the lapse of the
15-day reglementary for petitioner to respond to the PAN, petitioner
received the Final Assessment Notice (FAN) dated January 14, 2009. 25
Thus, petitioner is of the view that the issuance of the FAN before the
lapse of the 15-day period violated its right to due process.

We do not agree.

The CTA En Bane has already ruled in the case of Commissioner of

Internal Revenue vs. Steelasia Manufacturing Corporation (CTA EB Case
No. 63t December 22, 2011). Steelasia Manufacturing Corporation vs. CIR
(CTA EB Case No. 632, December 22, 2011) that:

"On the allegation that the CIR failed to observe the

15-day period for any taxpayer to contest the PAN
before a FAN is issued mandated under RR No. 12-99
and Section 228 of the NIRC of 1997 in violation of its
right to due process, suffice it to say that due process
in our jurisdiction refers to the right of the taxpayer to
be informed of the legal and factual findings of the BIR~

24
Exhibi ts "8", "8-A" and "8-B".
25
Par. 15, Petition for Rev iew, Docket, p. 5.
DEC ISION
CT A CASE NO . 7989
Page 19 of 43

as regards its deficiency taxes, and the opportunity to

be heard through protest. 26

Nate that a preliminary assessment notice

preparatory to the issuance of a formal or final
assessment notice is not, legally speaking, an
assessment even if it contains a computation of the
tax liabilities of a taxpayer and a demand for
payment of the computed tax liabilities was made
in such preliminary assessment notice. 27 Section
228 of the NIRC of 1997 clearly refers to the Final
Assessment Notice that should be formally
protested to by SAMC; else, the same becomes final
and executory.zs

It cannot be denied that SAMC was duly informed

of the assessment issued against it as it was able to
intelligently contest the subject assessment via its
protest letter dated March 26, 2001. Thus, SAMC was
afforded due process." (Emphasis supplied)

Moreover, in the case of Keppels Fels Energy, Inc., vs. Commissioner

of Internal Revenue (CTA Case No. 6826, july 21, 2011), the Second
Division of the CT A held:

"Petitioner impugns the validity of the Assessment

Notice on the deficiency expanded withholding tax on
the ground that it was issued before the lapse of the
period given to the petitioner to file its Comment on
the Pre-Assessment Notice (PAN) . Records show that
petitioner received the PAN on January 28, 2003. Said
PAN stated that petitioner is given fifteen (15) days
from the receipt thereof within which to file its
Comment. On February 5, 2003, or eight (8) days after
the service of PAN, petitioner received two formal
letters of demand and five unnumbered Final
Assessment Notices (FAN), all dated January 24, 2003.
Petitioner alleges that respondent violated Section 228
of the NIRC and RR No. 12-99 in the issuance of the
assessments by disregarding the mandatory
procedural requirements provided therein. Petitione ~

26
Standard Chartered Bank vs . Comm iss ioner of Interna l Revenue, CTA Case No . 7253 , June 25 , 20 I0.
27
Tax Rights and Remedies by Victorino C. Mamalateo, p. 758.
28
Direct Conta iner Line Phil s. , Inc. vs. Commissioner of Internal Revenue, CTA Case No . 7616 ,
September 10,2009.
DEC ISION
CT A CASE NO. 7989
Page 20 of43

further alleges that respondent issued the FAN

without giving the petitioner the opportunity to
respond to the PAN, thus, effectively violating the
former's right to procedural due process.

Petitioner's contention has no merit.

Pursuant to Section 228 of the 1997 NIRC and

RR 12-85, a protest against the PAN, unlike the
protest against the FAN, is not indispensable. 'In
fact, a preliminary assessment notice may or may
not even be protested to by the taxpayer, and the
fact of non-protest shall not in any way make the
preliminary assessment notice final and
unappealable. xxx' 29

It is clear from the foregoing that what the law

requires is the filing of the protest against the FAN,
failure to do so will cause the same to become final and
executory.

In the instant Petition, it is undeniable that the

essential elements of due process which are notice and
opportunity to be heard, were aptly accorded to
petitioner. Although only a few days apart, both the
PAN and the FAN were served upon it. That petitioner
was not able to take advantage of the full fifteen (15)
days given for it to file its Comment on the FAN cannot
override the fact that petitioner was still given enough
opportunity to defend itself against the assessments.
To further bolster the fact that it has been given
adequate opportunity to refute the charges against it,
petitioner was able to timely file its administrative
protest before the respondent. It was able to
extensively discuss its position on the deficiencies
being assessed against it. In sum, it is evident that
petitioner's right to a hearing was sufficiently
observed and protected." (Emphasis supplied)

Based from the foregoing, it can be inferred that a protest against

the PAN, unlike the protest against the FAN, is not indispensable. A
preliminary assessment notice may or may not even be protested to by
the taxpayer, and the fact of non-protest shall not in any way make th~

29
Security Bank Corporation vs . Comm issioner of Interna l Reven ue, CTA Case No. 6564, November 28,
2006.
DECISION
CT A CAS E NO . 7989
Page 2 1 of 4 3

preliminary assessment notice final and unappealable. Thus, the

issuance of the FAN before the lapse of the fifteen (15) day period for
the taxpayer to file its protest to the PAN, inflicts no prejudice on the
taxpayer for as long as the latter is properly served a formal assessment
notice and that it was able to intelligently contest the FAN by filing a
protest letter within the period provided by law. Moreover, this Court
observed that petitioner was afforded the procedural due process
required by law when it was fully apprised of the legal and factual bases
of the assessment issued against it and that petitioner was given the
opportunity to substantially protest or dispute the assailed assessments
via its protest letter.

This Court will now determine whether or not petitioner is liable

to pay the assessed deficiency internal revenue taxes.

De_ficiencv Income Tax, Expanded Withholding Tax, Final

Withholding ofVATand Final Withholding Tax

Since the deficiency income tax, expanded withholding tax, final

withholding of VAT and final withholding tax arose from the same items
of expenses, they will be discussed together hereafter.

Respondent's deficiency income tax assessment was computed as

follows: 30

Taxable income per ITR p 3,751,530.00

Add : Disallowed Expenses due to non -withholding (Schedule 1) 7,635,580.60
Adjusted net income p 11,387,110.60
Tax due p 3, 700,810.95
Less : Tax credit/Payment
Prior year's excess credit p 2,425, 703.00
Creditable tax withheld per BIR Form 2307 1,158,331.00
Total p 3,584,034.00
Less : Unsupported Creditable tax withheld 1,158,331.00
Excess tax credit carried over to succeeding period 2,364,787.00 60,916.00
Deficiency income tax p 3,639,894.95
Add : Interest (4 .16 .06 to 2.16 .09) 2,068,258 .11
Total amount due p 5,708,153.06

Disallowed expenses due to non-withholding-P7,635,580.60

Upon comparison of the following expenses reflected in

petitioner's annual income tax return (ITR) and financial statementse-

30
Exhibit "C-2".
DECISION
CT A CASE NO . 7989
Page 22 of43

(FS) 31 vis-a-vis the amount shown in its alphalist, 32 respondent's

examiner found discrepancies, to wit:33

EWT Per FS/AITR Per Alphalist Difference

Professional fees p 536,747.00 p 214,545.40 p 322,201.60
Marketing expense 1,313,379 .00 - 1,313,379.00
Total (} 1,850,126.00 (} 214,545.40 (} 1,635,580.60
FWT
Management services 6,000,000 .00 - 6,000,000.00
Total p 7,850,126.00 p 214,545.40 p 7,635,580.60

The foregoing expenses were disallowed and petitioner was

assessed of deficiency income tax, deficiency expanded withholding tax
for failure to withhold from professional fees and marketing expenses
paid, and final withholding tax and final withholding of VAT for failure
to withhold from management service fees paid to non-resident foreign
corporation.

Professional Fees-P322,201.60

Examination of petitioner's audited financial statements, as

attached to its annual income tax return for the year 2005, shows that it
reported professional fees amounting to P536,7 4 7.00.34 In her Judicial
Affidavit, 35 Ms. Alana Q. Macinas, the accountant of Probooks
Outsourcing Services, Inc. (Probooks), formerly Professional
Outsourcing Services, Inc., which provides accounting services for
petitioner, gave a breakdown of the foregoing amount, to wit: 36

Payee Amount
Probooks Outsourcing Services, Inc. p 240,000 .00
Follosco Morallos & Herce 241,747.41
Diaz Murillo Dalupan & Co. 55,000.00
TOTAL p 536,747.41

On the other hand, petitioner's alphalist reveals that the

professional fees that were subjected to expanded withholding tax
amounted to P254,254.40 representing professional fees paid to
Probooks37 for the months of October 2004 to October 2005, as detailed
below: ~

31
Exh ibit " K" .
32
Exhibit "0-3".
33
Schedul e I, Exhibit "C-3" .
34
Exhibit " K", Section D, Line 79.
35
Exh ibit "N 6..
36
Exhibit "N 6", Item 34.
37
Exh ibit "0-3".
 DEC ISION
CT A CASE NO . 7989
Page 23 of43

Gross
Gross Amount
lnv Amount Not
Professional /Billing Exhibit Subject to Subject to Net Exhibit OR
Fee No. No. EWT EWT EWT VAT Payment No. No. OR Date
PF - Oct 2004 675 Ns P18,181.82 P1,818.18 P1,818.18 P18,181.82
PF - Nov 2004 669 OS 18,181.82 1,818.18 1,818.18 18,181.82
PF - Dec 2004 682 ps 18,181.82 1,818.18 1,818.18 18,181.82
PF - Jan 2005 13 HH 20,000.00 2,000.00 2,000 .00 20,000 .00
Out of Pocket
Cost 18 P20,586.62 - - 20,586 .62
P74,545.46 P20,586.62 P7,454.55 P7,454.55 p 95,132 .08 GG-1 027 4/12/2005
PF - Feb 2005 27 Qs 20,000 .00 2,000.00 2,000 .00 20,000.00
PF - Mar 2005 33 Rs 20,000 .00 2,000.00 2,000.00 20,000 .00
40,000.00 - 4,000.00 4,000.00 40,000.00 Il -l 034 5/16/2005
PF- Apr 2005 040 55 20,000.00 2,000.00 2,000.00 20,000.00 JJ-1 040 6/20/2005
PF - May 2005 56 Ts 20,000.00 2,000.00 2,000.00 20,000.00
PF- June 2005 62 us 20,000.00 2,000.00 2,000 .00 20,000.00
PF - July 2005 72 vs 20,000.00 2,000.00 2,000.00 20,000.00
60,000.00 - 6,000.00 6,000.00 60,000.00 KK-1 049 8/26/2005
PF - Aug 2005 80 ws 20,000 .00 2,000.00 2,000.00 20,000.00
PF - Sept 2005 86 xs 20,000.00 2,000.00 2,000.00 20,000.00
PF - Oct 2005 97 yS 20,000.00 2,000.00 2,000.00 20,000.00
60,000.00 - 6,000.00 6,000.00 60,000.00 LL-1 068 12/7/2005
TOTAL P254,545 .46 P20,586.62 P25,454.55 P25,454.55 P275,132 .08

The creditable withholding taxes at the rate of 1 0°/o of the

foregoing professional fees were remitted by petitioner as follows:

Income Withholding Date of

Exhibit P erio d Cove red P aym ents Tax Re mittan ce
S, T Oct 2004 to J an 2005 p 74,545.40 p 7,454.54 10-May-05
U,V Feb to Mar 2005 40,000.00 4,000.00 6-Jun-05
W,X Apr-05 20,000.00 2,000.00 6-Jul-05
Z,AA May to July 2005 60,000.00 6,000.00 7-Sep-05
EE,FF Aug to Oct 2005 60,000.00 6,000.00 10-Jan-06
TOTAL p 254,545.40 p 25,454.54

It should be noted that respondent's examiner used the amount

P214,545.40 in her computation of professional fees not subjected to
EWT, instead of the amount of P254,545.40. The discrepancy of
P40,000.00 is attributable to the professional fees for the months of
February and March 2005 of which the corresponding withholding tax
of P4,000.00 remitted on June 6, 2005 was not considered and included
by respondent's examiner in his computation 3B.

However, inasmuch as only the professional fees for the year

2005 was recognized by petitioner as expense in its annual ITR and
audited FS and to be able to make a reasonable comparison,
respondent's examiner should have excluded payments from thee-

38
BIR Records, p.99.
DEC ISION
CT A CASE NO. 7989
Page 24 of 43

alphalist pertaining to year 2004 in the amount of P54,545.46,

consisting of the following:

Exhibit lnvoice/SOA No. lnvoice/SOA Date Period Covered Amount

Ns 0675 11/12/2004 Oct-04 p 18,181.82
OS 0669 11/9/2004 Nov-04 18,181.8 2
ps 0682 12/8/2004 Dec-04 18,181.82
TOTAL p 54,545.46

Thus, the amount of professional fees per alphalist should be

P200,000.00. Using this amount, the discrepancy between the
professional fees reported per ITR/FS and per alphalist should be
P336,747.00, computed thus:

Per Financial Statements p 536,747.00

Per Alphalist 200,000.00
Difference p 336,747.00

In its protest to the FAN, petitioner avers that a portion of

disallowed professional fees refers to the following payments: 39

Payee Amount
Follosco Morallos & Herce {FMH) p 241,747.41
Diaz Murillo Dalupan & Co . {DMD) 55,000.00
TOTAL p 296,747.41

Petitioner argues that above professional fees incurred by

petitioner were for the services provided by its auditors and lawyers
which are general professional partnerships exempt from withholding
tax pursuant to Section 2.57.5 of Revenue Regulations No. 2-98, as
amended by Section 4 of Revenue Regulations No. 14-02, which
provides: 40

"Sec. 2.57.5. Exemption from Withholding - The

withholding of creditable withholding tax prescribed in
these Regulations shall not apply to income payments made
to the following:

(A) XXX XXX XXX

(B) Persons enjoying exemption from payment of

income taxes pursuant to the provisions of any law, general
or special, such as but not limited to the following:~

39
Exhibit " H", p. 8.
40
Exhibit " H", p. 8.
 DEC ISION
CT A CASE NO. 7989
Page 25 of 43

XXX XXX XXX

( 4) General professional partnerships

XXX XXX XXX"

It is a jointly stipulated fact that the said service providers, DMD

and FMH, are registered with the Securities and Exchange Commission
(SEC) as general professional partnerships engaged in the practice of
accounting and general practice of law, respectively. 41

Petitioner submitted statements of accounts and official receipts

to further support its allegation, summarized as follows:

Exhibit SOA Date OR Date Payee Gross Amount* Exclusive of VAT

QQ, RR 4/21/2006 5/23/2006 Diaz Murillo Dalupan & Co. f) 67,200.00 f) 60,000.00
TTI, SSS 2/28/2005 5/4/2005 Follosco Morallo s & Herce 121,017.24 121,017.24
WWW, VVV 10/31/2005 12/13/2005 Follosco Morallo s & Herc e 164,790.05 164,790.05
ZZZ, YYY 3/15/2006 5/23/2006 Follosco Morallos & Herce 132,558.61 118,355.90
TOTAL p 485,565.90 p 464,163.19
*Inclusive of 12% VAT

The Court notes that the foregoing amounts include cost and
expenses pertaining to years 2004, 2006 and 2007 which are already
outside the subject taxable year 2005. Thus, computing the professional
fees for the taxable year 2005 and excluding the costs and expenses
charged by FMH and DMD yields the amount of P296,889.02, as shown
below:

Statement Expense for 2005

of Account (Excluding Costs &
Exhibit Date Particulars Amount Expenses)
QQ 4/21/2006 Dec. 31, 2005 audit f) 60,000.00 f) 60,000.00
Monthly retainer (Nov .
2004 to Feb. 2005} SGD 1,200.00 SGD 600 .00
Directors fees (Feb . 2005 to
TTI 2/28/2005 Jan. 2006) 821.00 752 .58
Costs & expenses 193.00 -
Subtotal SGD 2,214.00 SGD1,352.58
Forex rate 54 .66 121,017.24 54 .66 73,932.02
Monthly retainer (Mar. to
Oct. 2005) SGD 2,400.00 SGD2,400.00
www 10/31/2005 Costs & expenses 597 .00 -
Subtotal SGD 2,997.00 SGD2,400.00
Forex rate 54.985 164,790.05 54.985 131,964.00
Monthly retainer (Nov .
zzz 3/15/2006
2005 to Feb. 2006) SGD 1,200.00 SGD 600 .00
,,....
....,

41
Paragraphs 12 and 13, Facts Stipu lated on at the Pre-Trial Conference, Joint Stipulations of Facts and
Issues, Docket, p. 272.
DECISION
CT A CASE NO. 7989
Page 26 of43

Directors fees (Feb . 2006 to

Jan. 2007) 880.00 -
Costs & expenses 211.27 -
Subtotal SGD 2,291.27 SGD 600.00
Forex rate 51.66 118,35 5.90 51.66 30,993 .00
TOTAL P464,163.19 P296,889.02

Thus, petitioner has sufficiently proven that its payments to

general professional partnerships in the year 2005 amounting to
P296,747.41 42 as reported in its audited financial statements are
properly substantiated. Accordingly, the same shall not be subjected to
expanded withholding taxes.

However, there still remains a discrepancy of P40,000.00,

computed as follows:

Difference of professional fees perFS and per Alpha li st (as adjusted) p 336,747.00
Payments to GPPs (rounded off) 296,747.00
Discrepancy p 40,000.00

This amount pertains to petitioner's payment to Probooks for the

months of November and December 2005, which are not in the alphalist
for the year 2005 because it was paid in the succeeding year, as
evidenced by statements of accounts 4 3 and official receipts 44 covering
the subject periods.

However, Section 2.57.4 of Revenue Regulations No. 2-98, as

amended by Revenue Regulations No. 12-01, provides when the
obligation to withhold the tax arises, thus:

"SECTION 2.57.4 Time of Withholding. - The

obligation of the payor to deduct and withhold the tax
under Section 2.57 of these Regulations arises at the
time an income payment is paid or payable, or the
income payment is accrued or recorded as an expense
.or asset, whichever is applicable, in the payor's books,
whichever comes first. The term "payable" refers to the date
the obligation becomes due, demandable or legally
enforceable.

Provided, however, that where income is not yet paid

or payable but the same has been recorded as an expense or~

42
With a difference of P 141.61 (P296,889.02 less P296 ,74 7.41) due to rounding off.
43
Exhibits " MM" and "00".
44
Exhibits "NN" and " PP".
 DEC ISION
CT A CASE NO. 7989
Page 27 of 43

asset, whichever is applicable, in the payor's books, the

obligation to withhold shall arise in the last month of the
return period in which the same is claimed as an expense or
amortized for tax purposes." (Emphasis supplied)

Based on the foregoing provision, the duty of petitioner to

withhold arises when the professional fees were paid, becomes payable,
or were accrued/recorded as expense in petitioner's books, whichever
comes first. After which, the corresponding return and remittances
must be made within 10 days after the end of each month, except for
taxes withheld for the month of December of each year, which shall be
filed on or before January 25 of the following year. 4 s

Thus, since the amount of P40,000.00 representing professional

fees for the months of November and December 2005 had been accrued
or recognized by petitioner as expense in its FS for the year ending
December 31, 2005, petitioner then is already obligated to withhold the
corresponding tax amounting to P4,000.00 which is due for payment on
January 25, 2006.

As can be gleaned from the records, petitioner remitted the

withholding taxes due thereon but only on February 10, 2006 and
March 1, 2006 for the amounts of P2,000.00 each. Thus, for being
belatedly remitted, the same shall be imputed with surcharges and
interest computed from January 25, 2006 until February 10 and March
1, 2006, pursuant to Sections 248(A)(4) and 249(A) of the NIRC of
1997, as herein computed:

Deficiency on Increments for Late Remittance of Withholding Taxes on Professional Fees

Withholding Taxes due on January 25, 2006 p 4,000.00
Add : 25% Surcharge p 1,000.00
Interest [(01-25-06 to 02-10-06)/(01-25-06 to 03-01-06)]
(P2,000 .00 X 20% X 16 days/365) 17.53
(P2,000 .00 X 20% X 35 days/365) 38.36 1,055 .89
Total p 5,055 .89
Less: Payments - 02-10-06 and 03-01-06 4,000.00
Total Amount Due p 1,055.89

45
Section 2 .58(A)(2) of Revenu e Regul ati ons 2-98, as amended by Reve nue Regulat ions No. 12-0 I, An nex
" 8 "(2).
 DECISION
CT A CASE NO . 7989
Page 28 of 43

Marketing Expense-P1,313,379.00

Respondent disallowed marketing fees amounting to

P1,313,379.00 on the ground that petitioner allegedly failed to withhold
the expanded withholding tax amounting to P26,267.58.

Petitioner avers that its marketing expenses for the year 2005 in
the amount ofP1,313,379.00 actually pertain to its share in the regional
public relations and marketing expenses incurred outside the
Philippines by Oakwood Asia Pacific Pte Ltd. (OAP), petitioner's parent
company, which are supported by invoices from OAP, as summarized
below: 46

Exhibit Date Invoice Particulars Amount

Share of public relation s and marketing expenses-
JJJ 7/31/2005 OM5P-050702 p
January to June 2005 735,017.05
Share of public relations and marketing expen ses-
KKK 11/30/2005 OMSP-051102
July to October 2005 276,787.72
Sales and services assessment incentives- June,
LLL 11/30/2005 OMSP-051103
August and September 2005 17,585.75
Share of public relation s and marketing expenses-
NNN 12/31/2005 OMSP-051203
November to December 2005 268,09 2. 59
Sales and services assess ment incentives -
000 12/31/2005 OMSP-051204
October and November 2005 15,895 .50
TOTAL p 1,313,378.61

Petitioner also submitted the allocation 47 and breakdown of the

public relations and marketing expenses and supporting invoices and
official receipts, 48 which were examined by the Court-commissioned
independent CP A.49

It should be noted that of the total marketing expense of

P1,313,379.00, only the amount Pl,279,897.36, as detailed below,
pertains to petitioner's share of regional public relations and marketing
expense:

Exhibit Date Invoice Amount

JJJ 7/31/2005 OMSP-050702 p 735,017 .05
KKK 11/30/2005 OMSP-05110 2 276,787 .72
NNN 12/31/2005 OMSP-051203 268,092 .59
TOTAL p 1,279,897.36

46
Exhibit " H6 -I ".
47
Exhibits " H6 -I -2", " H 6- I-106" and " H6-I - 155".
48
Exhibits " H6 -I-I " to " H6 -I-181 ".
49
Mr. Jerome Antonio B. Constantino of Constantino Guada lqui ver & Co.
DECISION
CT A CASE NO. 7989
Page 29 of43

The remammg P33,481.25 pertains to sales and services

assessment incentives for the months of June, August, September,
October and November 2005. The Court examined company-wide
reports on sales and services assessment scores for several evaluation
dates, summarized as follows:

Evaluation Employee Score

Exhibit Date Location Name Amount %
Ayala -Oakwood Premier Ayala
H6-1-151 6/23/2005
Center [NA PHI) Irene Ocapo US$ 125.00 97
Ayala -Oakwood Premier Ayala
H6-1- 152 8/25/2005
Center [NA PHI) Karen Jacobo 75.00 93
Ayala-Oakwood Premier Ayala
H6-1-153 9/15/2005
Center [NA PHI) Oliver Sabadilla 125.00 98
LLL Subtotal- Tax Invoice No. OMSP-051103 dated 11/30/2005 US$ 325 .00
Forex rate 54.11
p 17,585.75
Ayala -Oakwood Premier Ayala
H6-1-180 10/13/2005
Center [NA PHI) Miela Zemeles US$ 150.00 100
Ayala -Oakwood Premier Ayala
H6-1-181 11/23/2005
Center [NA PHI) Maile Ramirez 150.00 100
000 Subtotal- Tax Invoice No. OMSP-051204 dated 12/31/2005 US$ 300.00
Forex rate 52 .985
p 15,895.50
TOTAL p 33,481.25

Based on the foregoing, it can be surmised that sales and services

assessment incentives are given to employees who achieve high scores
in the evaluation conducted by the company. For the months of June,
August, September, October and November 2005, five (5) employees
received such monetary incentives and were recorded as marketing
expenses. The same amounts were billed to petitioner by OAP.

Citing BIR Ruling DA 058-08 dated February 1, 2008, petitioner

asserts that its share of the expenses with the parent company is
exempt from expanded withholding tax. However, a reading of the said
BIR Ruling tells that it was issued for San Miguel Corporation (SMC) and
not for herein petitioner. Albeit the subject matter of the ruling for SMC
is similar with petitioner's allegation, the Court cannot ascertain
whether or not said ruling is on all fours with the instant case.
Moreover, petitioner is assessed of deficiency income tax for the year
2005 while the BIR Ruling for SMC is in the year 2008.

Nevertheless, in another instance, respondent's Bureau ruled

thus: ~ 5

50
IT AD Ruling No. 129-03 dated August 18, 2003.
DECISION
CT A CASE NO. 7989
Page 30 of 43

"By its very nature, reimbursement of expenses is not

income but merely a return of capital. Accordingly, said
reimbursement is not subject to withholding tax. (BIR
Ruling No. DA-384-98 dated August 24, 1998) In the instant
case, therefore, the reimbursement by SKF Philippines of
the administration expenses incurred by AB SKF is not
subject to withholding tax." (Emphasis supplied)

The BIR recognizes interrelated group of companies sharing costs

in Revenue Audit Memorandum Order (RAMO) No. 1-98. However,
petitioner must prove that such arrangement exists between petitioner
and its parent company and that sharing should only involve
reimbursement of costs, without any mark-up or additional charges.

In an Affidavit,s1 OAP's Chief Financial Officer, Chai Soo Chiao,

stated that OAP billed petitioner for reimbursement of the cost of
marketing expenses incurred by OAP on behalf of petitioner pursuant to
the Service Agreement dated 15 January 200o.sz

Examination of the submitted documents shows that the shared

marketing expenses were mere reimbursements of costs without
additional charges or mark-up. Hence, the disallowance of petitioner's
marketing expenses in the amount ofP1,313,379.00 should be set aside.

As previously discussed, petitioner has proven that the difference

found by respondent's examiner pertain to a) professional fees paid to
general professional partnerships not subject to income and
withholding ; and, b) marketing expenses which are petitioner's share
of public relations and marketing expenses of its parent company and
were proven to be mere reimbursements of costs. Accordingly,
respondent's deficiency income tax and EWT assessments related to
these expenses should likewise be cancelled.

Management Services-P6,000,000.00

Respondent disallowed petitioner's marketing expenses in the

amount of P6,000,000.00 for its alleged failure to withhold the
corresponding final withholding tax and VAT therefrom. Petitioner
argues that the subject amount pertain to management fees it paid to
OAP, a non-resident foreign corporation, as evidenced by a Service..s:a-

51
Exh ibit " H6-4".
52
Exhibit " H6 -5''.
DEC ISION
CT A CAS E NO . 79 89
Page 3 I of 43

Agreement between petitioner and OAP. 53 Pursuant to the Agreement,

service fees are as follows: S4

''xxx XXX XXX

Starting 1 January 2001, Oakwood Philippines agrees to pay

a service fee to Oakwood Asia in a sum of Five Hundred
Thousand Pesos Philippine Currency (PhpSOO,OOO.OO)
per month or its equivalent in any other foreign currency
to be designated by Oakwood Asia. (emphasis supplied)

XXX XXX XXX"

Thus, for the year 2005, petitioner paid OAP the total amount of
P6,000,000.00 (P500,000.00 x 12 months). This is supported by tax
invoices issued by OAP to petitioner, summarized as follows:

Exhibit Date Invoice Amount

Bs 1/1/2005 OMSP-050101 ~ 500,000.00
cs 2/1/2005 OMSP-050201 500,000.00
OS 3/1/2005 OMSP-050301 500,000.00
Es 4/1/2005 OMSP-050401 500,000.00
Fs 5/1/2005 OMSP-050501 500,000.00
Gs 6/1/2005 OMSP-050601 500,000.00
Hs 7/1/2005 OMSP-050701 500,000.00
Is 8/1/2005 OMSP-050801 500,000.00
Js 9/1/2005 OMSP-050901 500,000.00
Ks 10/1/2005 OMSP-051001 500,000.00
Ls 11/1/2005 OMSP-051101 500,000.00
Ms 12/1/2005 OMSP-051 201 500,000.00
TOTAL PG,OOO,OOO.OO

The Agreement further provides, under the heading "Warranty":

"5.3 It is confirmed that, in performing its works and duties

under this Agreement, Oakwood Asia shall prepare
and provide the services to Oakwood Philippines
only from Malaysia or elsewhere where outside
[the] Philippines. Oakwood Asia shall at all times be an
independent contractor and any and all staff of
Oakwood Asia who are assigned to perform the services
under this Agreement shall not be considered
employees or staff of Oakwood Philippines. xxx"
(emphasis supplied) &-

53
Ibid .
54 6
Section 3 . 1, Exhibit " H -5".
DEC ISION
CT A CASE NO. 7989
Page 32 of 43

Petitioner asserts that its payments to OAP for management

services performed abroad are not subject to income tax and
withholding tax. In support thereto, petitioner submitted the following
documents:

1. Securities and Exchange Commission (SEC) Certificate of Non-

Registration of Oakwood Asia Pacific Ltd.- Exhibit H6 -2

2. Accounting & Corporate Regulatory Authority (ACRA)

Registration of OAP in Singapore- Exhibit H6 -3

Examination of the foregoing only proves that OAP is a non-

resident foreign corporation, but does not necessarily prove that the
services it rendered were actually performed abroad. To further
support its claim, petitioner presented the BIR Ruling DA-ITAD-145-02
dated August 21, 2002 it obtained from respondent's bureau, thus: 55

"2. Whether the Service Fees payable to Oakwood Asia

are exempt from Philippine income tax, hence Oakwood Phils.
is not required to withhold income tax upon its remittance of
such Service Fees.

Pursuant to Section 28(8)(1) of the Tax Code of 1997,

non-resident foreign corporations are subject to
income tax only on income derived from all sources
within the Philippines. Consequently, Oakwood Asia,
being a non-resident foreign corporation is not subject to
income tax on income derived from sources outside the
Philippines.

3. Whether the service fees and reimbursement are not

subject to value-added tax in view of the fact that the services
herein being remunerated are performed outside of the
Philippines and the reimbursements pertain to such services
so rendered.

Inasmuch as it has been the representation that the

abovementioned services will be performed by Oakwood
Asia in Malaysia or in some other jurisdiction outside the
Philippines and from time to time, Oakwood Asia may
have to send its personnel to the Philippines, for short
periods which should not, in aggregate, exceed 183 days in
any calendar year, the fees paid by Oakwood Phils. for~
55
Exhibit " H6 -9".
 DECISION
CT A CASE NO. 7989
Page 33 of 43

services rendered in the Philippines a re subject to the

10°/o value-added tax pursuant to Section 108 of the
Tax Code of 1997. Accordingly, Oakwood Phils. being
the payor in control of the payment shall be
responsible for the withholding of VAT on such fees on
behalf of Oakwood Asia xxx." (Emphasis and underscoring
supplied)

Relying on said ruling, petitioner argues that since the services

are generally performed outside the Philippines, said transaction is not
subject to income tax and VAT. Thus, it is not required to withhold FWT
and VAT from its payments to OAP.

Scrutiny of the following submitted documents, which were

examined by the Court-commissioned CPA, proved otherwise:

1. List of Officers of OAP providing management services to

petitioner in the year 2005 -Exhibit H6 -6

2. Bureau of Immigration Certification on the travel schedule of

the officers listed- Exhibit H6 -7 to H6 -7h(1)

3. Certificate of Employment of OAP employees- Exhibit H6 -8

As established, OAP sent the following employees to the

Philippines in the year 200 5 to perform management services: 56

Exhibit Nam e of St aff Period of Travel No. of Days Purpose

6
H -7c(1) to Puryan Karimbil George To review security arrangements
6 Feb. 22-23, 2005 2
H -7e(1) Mathew at Oakwood Premier Ayala Center
Property tour and meeting with
Mar. 18-20, 2005 3
property owner
May 10-11, 2005 2 Operations review
Jun . 20-21, 2005 2 Business development
Sep. 27-28, 2005 2 Budget meeting
Oct. 16, 2005 to Feb.
114 Operations review
7,2006
6
H -7g(1) and Cheong Cher Ling Training needs analysis and to
6 Aug. 17-19, 2005 3
H -7h(1) Jacqueline review training materials
H"-7a(1) and
6 Robert Alan Philips Feb. 20-24, 2005 5 Review marketing strategies
H -7b(1)
TOTA L 133

Considering that the foregoing personnel performed services

within the Philippines, the management services therefore, are subject~
56
Exhibit " H6-6".
DEC ISION
CT A CAS E NO. 7989
Page 34 of 43

to income tax and VAT and, petitioner is responsible to withhold the

same from its payment to OAP. Thus, respondent is correct in
disallowing said expense and in assessing petitioner for deficiency
income tax. Moreover, since it cannot be ascertained which portion of
the assessed amount of P6,000,000.00 pertain to services rendered
outside or within the Philippines, the Court is constrained to uphold
respondent's final withholding tax and final withholding of VAT
assessments in its entirety.

Unsupported Creditable Tax Withheld-P1,158,331.00

Respondent disallowed petitioner's creditable tax withheld for

the year 2005 in the amount of P1,158,33l.OOS7 for allegedly being
unsupported. However, petitioner submitted its Certificates of
Creditable Tax Withheld at Source (BIR Form No. 2307) to support
creditable withholding taxes amounting to P1,312,791.43, summarized
as follows:

Exhibit Period Covered Payor CWT

L4 1/1/2005 to 3/31/2005 Makati Property Ventures Inc. f) 286,034.97
M4 4/1/2005 to 6/30/2005 Makati Property Ventures Inc. 296,95 2. 61
N4 7/1/2005 to 9/30/2005 Makati Property Ventures Inc. 306,276 .88
04 10/1/2005 to 12/31/2005 Makati Property Ventures Inc. 423,526.97
TOTAL p 1,312,791.43

It should be noted that the total amount of creditable withholding

tax per BIR Form No. 2307 exceeds the amount claimed by petitioner in
its annual income tax return for 2005 by P154,460.43 (P1,312,791.43
less P1,158,331.00). Probooks' accountant assigned to keep petitioner's
books, Ms. Alona Q. Macinas, explained the difference, to wit: ss

"109) FMH: xxx. Can you explain the difference?

MS. MACINAS: When petitioner prepared its Annual

Income Tax Return for 2005, the creditable tax withheld
per BIR Form No. 2307 was computed based on total
payments actually collected by petitioner from Makati
Property Ventures Inc./Oakwood Premier Ayala Center
during the year. However, Makati Property Ventures
Inc./Oakwood Premier Ayala Center gave petitioner the
Certificates of Creditable Tax Withheld at Source (BIR;::a-

57
Exhibit "K", Lines 28C and 280.
58
Exhibit "N6", Item No. 109.
DECISION
CT A CASE NO . 7989
Page 35 of 43

Form 2307) based on revenue earned in 2005,

regardless of date of collection."

Based on the foregoing, considering that petitioner's claimed CWT

for the year 2005 is duly supported by Certificates of Creditable Tax
Withheld at Source (BIR Form No. 2307), the disallowance of said CWT
and assessment of deficiency income tax should be cancelled by
respondent.

Disallowed Excess Tax Credit Carried Over to Succeeding Period-

P2,364,787.00

Respondent disallowed petitioner's excess tax credits carried over

to the succeeding period reflected in petitioner's 2005 Annual Income
Tax Return in the amount of P2,364,787.00 59 to recapture the tax
benefit thereon, considering that the tax benefit of this amount has
already been forwarded to succeeding periods as provided by Section
76(B) of the NIRC and Section 2.58(C) of Revenue Regulations [No.] 2-
98.60

However, We find it improper for respondent to disallow the

excess tax credits because any tax benefit derived by petitioner from the
carry-over of the said amount redounds to the succeeding year 2006.
Since the tax benefit will be in the succeeding year, at most, petitioner
may only be assessed in the said succeeding year.

Considering that petitioner has enough tax credits for the year
2005 even when its income is adjusted to include the disallowed
management service fees, petitioner is not liable for deficiency income
tax, as determined below:

Taxable income per ITR p 3,751,530.00

Add : Disallowed Expenses due to non-withholding (Schedule 1) 6,000,000.00
Adjusted net income p 9,751,530.00
Tax due p 3,169,247.25
Less: Tax credit/Payment
Prior year's excess credit IP 2,425, 703 .00
Creditable tax withheld per BIR Form 2307 I 1,158,331.00 3,584,034.00
Deficiency income tax p (414,786.75)

On the other hand, petitioner is liable to pay the deficiency final

withholding of VAT and final withholding tax, as computed below: ~
59
Exhibit " K", Line 29.
60
Exhibit "C-3", Item VII.
DECISION
CT A CASE NO . 7989
Page 36 of43

Tax Type Tax Base Tax Rate Basic Tax Due

Final VAT p 6,000,000.00 10% p 600,000.00
FWT p 6,000,000.00 32% 1,920,000.00
Total f) 2,520,000.00

Deficiency Value-added Tax

Respondent's examiner contends that out of the petitioner's

claimed input taxes of P24,000.00, P16,000.00 was found to be
unsupported, thus assessed petitioner of deficiency VAT.

Petitioner avers that its claimed input taxes of P24,000.00 were

incurred on service fees paid to Probooks who performs accounting
services for petitioner and are properly supported by VAT invoices, to
wit: 61

Invoice/Bill Invoice/Bill
Exhibit No. Date Period Covered Amount VAT
HH 013 1/20/200S Jan-OS p 20,000.00 p 2,000.00
Qs 027 2/22/200S Feb-OS 20,000.00 2,000.00
Rs 033 3/17/200S Mar-OS 20,000.00 2,000.00
55 040 4/4/200S Apr-OS 20,000.00 2,000.00
Ts OS6 S/13/200S May-OS 20,000.00 2,000.00
us 062 6/14/200S Jun -OS 20,000.00 2,000.00
vs 072 7/11/200S Jui -OS 20,000.00 2,000.00
ws 080 8/19/200S Aug-OS 20,000.00 2,000.00
xs 086 9/20/200S Sep-OS 20,000.00 2,000.00
yS 097 10/14/200S Oct-OS 20,000.00 2,000.00
MM 106 11/3/200S Nov-OS 20,000.00 2,000.00
00 119 12/7/200S Dec-OS 20,000.00 2,000.00
TOTAL f) 240,000.00 f) 24,000.00

Petitioner also submitted the official receipts issued by Probooks

for petitioner's payments for accounting services rendered for the year
2005, summarized as follows:

Exhibit OR No. OR Date Period Covered Input Tax

GG 027 4/12/200S Jan OS p 2,000.00
II 034 S/16/200S Feb to Mar OS 4,000.00
JJ 040 6/20/200S Apr OS 2,000.00
KK 049 8/26/200S May to Jul OS 6,000.00
LL 068 12/7/200S Aug to Oct OS 6,000.00
NN 077 1/19/2006 Nov OS 2,000.00
pp 081 2/14/2006 Dec OS 2,000.00
TOTAL f) 24,000.00

61
Exhibit " H", p. II.
DEC IS ION
CT A CASE NO. 798 9
Page 37 of43

However, Section 110(A)(1)(b) in relation with Section 113(A)(2)

of the NIRC of 1997, as amended, respectively provides:

"SEC. 110. Tax Credits.-

(A) Creditable Input Tax.-

(1) Any input tax evidenced by a VAT invoice or

official receipt issued in accordance with Section 113
hereof on the following transactions shall be creditable
against the output tax:

XXX XXX XXX

(b) Purchase of services on which a value-added tax

has been actually paid."

"SEC. 113. Invoicing and Accounting Requirements

for VAT-Registered Persons.-

(A) Invoicing Requirements.-A VAT -registered

person shall issue:
XXX XXX XXX
(2) A VAT official receipt for every lease of goods or
properties, and for every sale, barter or exchange of
services." (emphasis supplied)

It is clear from the above-quoted provisions that for purchases of

services, the corresponding value-added tax is creditable to the
purchaser upon payment of compensation as evidenced by VAT official
receipts.

In the present case, since the payment made by petitioner to

Probooks for the following input taxes amounting to P4,000.00 were
made outside the taxable year 2005, the same should be disallowed:

Exhibit OR No. OR Date Period Covered Input Tax

NN 077 1/19/2006 Nov OS f) 2, 000.00
pp 081 2/14/2006 Dec OS 2, 000.00
TOTAL p 4,000.00

Hence, only the input taxes in the amount of P20,000.00

(P24,000.00 less P4,000.00) can be credited against petitioner's output
taxes for the subject taxable period ..er-
DECISION
CT A CASE NO. 7989
Page 38 of43

Accordingly, petitioner should be made liable to pay basic

deficiency VAT in the amount of P4,000.00, as computed below:

Gross receipts per return ~ 11,583,301 .32

Output VAT ~ 1,158,330.13
Less: Claimed input ta x I ~ 24, 000.00
Less : Di sa llowed input ta x I 4,000.00 20,000.00
VAT Payable ~ 1,138,330.13
VAT Paid 1,134,330.13
Basic tax due p 4,000.00

Documentary Stamp Tax

Respondent's examiner found that petitioner allegedly failed to

pay DST on the following: 62

Items Amount Rate DST

Subscribed Capital Stock ~ 7,920,000.00 ~1 on each ~ 200 ~ 39,600.00
63
Due to affiliated company 674,051.00 ~0.30 on each ~200 1,011.30
TOTAL p 40,611.30

Petitioner disagrees and submitted documentary evidence to

refute respondent's findings.

Subscribed capital stock-P7,920,000.00

The assessed capital stock in the amount of P7,920,000.00

represents petitioner's 79,200 shares at PlOO.OO par value subscribed
and paid-up capital.64

Petitioner avers that DST on the issuance of its subscribed capital

stock has been paid and submitted its Documentary Stamp Tax
Declaration/Return (BIR Form No. 2000) showing the following
information: 65

Particulars Amount
DST on original issue of shares of stock {~7,920,000 . 00 x 1%) ~ 79,200.00
Penalties {Surcharge, interest & compromise) 37,007.67
Total amount paid p 116,207.67

62
Exhibit "C-3", Item XII.
63
Exhibit " K-4".
64
Exhibit " K", Balance Sheet as of December 3 1, 2005 attached to the Annual Income Tax Return for
2005.
65
Exhibit " K6".
DEC ISION
CT A CASE NO . 7989
Page 39 of43

Together with the said DST return is the bank official receipt
pertaining to petitioner's payment of the foregoing. 66

Thus, petitioner proved that it is not liable for deficiency DST on

the issuance of its subscribed capital stock.

Due to affiliated company- P6 74, 051. 00

In its audited financial statements, petitioner reported a liability

"Due to an affiliated company" in the amount of P674,051.00.67 In
relation thereto, petitioner disclosed in Note 8 of its audited financial
statements the nature of its related party transactions, 68 to wit:

"The Company has a management service agreement with

OAP whereby the latter agreed to provide consultancy and
management services to the Company for a monthly fee of
PSOO,OOO. The Company's other transactions with OAP
consist of reimbursement of various expenses and advances
in the normal course of business."

Respondent assessed petitioner for its alleged failure to pay the

documentary stamp tax thereon pursuant to Section 180 of the NIRC of
1997, as amended by Republic Act No. 9243, which provides:

"SEC. 180. Stamp Tax on All Bills of Exchange or

Drafts.-On all bills of exchange (between points within the
Philippines) or drafts, there shall be collected a
documentary stamp tax of Thirty centavos (P0.30) on each
Two hundred pesos (P200), or fractional part thereof, of the
face value of any such bill of exchange or draft."

Petitioner asserts that the assessed amount consists of

reimbursements of various expenses and advances used in the normal
course of business with OAP and which are billed to Oakwood and, is
not evidenced by any of the instruments mentioned in the preceding
provision of law. 69~

66
Exhibit " L6" .
67
Exhibit " K-4".
68
Exhibit " K-6" .
69
Exhibit " H", p. 14.
DECISION
CT A CA SE N O. 7989
Page 40 of43

The independent CPA obtained a Schedule of Owing to OAP for

the taxable year 2005 amounting to P674,050.99, shown hereafter,7°
which is equal to the "Due to an affiliated company" liability reported in
the audited financial statements in the amount of P674,051.00
(rounded oft):

Date Particulars/Bill No. JV No. Amount

12/31/2005 To record lnv. No . OMSP-05120 2 251209 r> 110,038.65
12/31/2005 To record lnv. No . OMSP-051203 251210 268,092.59
12/31/2005 To record lnv. No . OMSP-051204 251 211 15,895.50
12/31/2005 To record lnv. No . OMSP-051205 251 212 280,024.25
TOTAL p 674,050.99

The Court found that the foregoing schedule is supported by the

following invoices and certified true copies of their attachments: 7 1

Exhibit Invoice Date Invoice No. Amount

MMM 12/31/2005 051 202 SGD 3,453.70 r> 110,038.65
ppp 12/31/2005 051205 8,788 .91 280,024.25
NNN 12/31/2005 051 203 8,414.42 268,09 2. 59
000 12/31/2005 051204 300.00 15,895.50
TOTAL SGD 20,957.03 p 674,050.99

Thus, petitioner has proven that the assessed amounts pertain to

reimbursements of various expenses and are not evidenced by any of
the instruments mentioned in Section 180 of the NIRC of 1997, as
amended. Hence, respondent's deficiency DST assessment on
petitioner's due to affiliates is without factual basis and should be
cancelled.

Penalty for failure to file returns-P59.400.00

Respondent imposed compromise penalties for petitioner's

failure to file the following returns in the total amount ofP59,400.00: 72

Suggested
Nature of Violation Violated Provision Compromise
Failure to File Withholding of VAT Return Sec. 4.114 of RR 2-98 r> 20,000.00
Failure to File Final Withholding Ta x Return Sec. 2.58 of RR 2-98 25,000.00
Failure to File Documentary Stamp Ta x Sec. 175/180 NIRC 12,000.00
Failure to File Withholding Tax on Compensation Return s 2,400.00
TOTAL p 59,400.00

70
Exhibit " H 6 - IO".
71
Exhibits " H 6- I-1 54" to " H 6- I - 18 1" and " H 6 -I 0- 1" to " H 6 -I 0-44".
72
Exhibit "C-4".
DECISION
CTA CASE NO. 7989
Page 41 of 43

Such imposition cannot be sustained. Under Revenue

Memorandum Order No. 01-90, "compromise penalties are only
amounts suggested in settlement of criminal liability, and may not
therefore be imposed or exacted on the taxpayer in the event that a
taxpayer refuses to pay the suggested compromise penalties. 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
which is so compromised, and the choice of paying or not paying it
distinctly belongs to the taxpayer.7 3 Absent a showing that herein
petitioner consented to the compromise penalty, its imposition should
be deleted. The imposition of the same without the conformity of the
taxpayer is illegal and unauthorized.7 4

In view of the foregoing, petitioner is liable for deficiency final

withholding of VAT, final withholding tax and VAT for the year 2005 in
the amount of P3,156,055.89, inclusive of the 25o/o surcharge imposed
under Section 248(A)(3) of the NIRC of 1997, computed as follows:

Tax Type Basic Tax Surcharge (25%) 20% Interest Total

Final VAT p 600,000.00 p 150,000.00 p 750,000.00
FWT 1,920,000.00 480,000.00 2,400,000.00
VAT 4,000.00 1,000.00 5,000.00
Sub-Total p 2,524,000.00 p 631,000.00 p 3,155,000.00
Deficiency Increments for Late
Remittance of EWT 1,000.00 p 55.89 1,055.89
TOTAL P2,524,000.00 p 632,000.00 p 55.89 P3,156,055.89

In addition, petitioner is likewise liable to pay:

(a) Deficiency interest at the rate of 20% per annum pursuant

to Section 249(B) of the NIRC of 1997:

1) On the deficiency final withholding tax computed from

January 15, 2006 until full payment thereof;

2) On the deficiency final withholding of VAT computed from

January 10, 2006 until full payment thereof; and~

73
The Phil. International Fair, Inc. vs. The Collector of Internal Revenue et al., G.R. Nos. L-12928 and L-
12932, March 3 I, 1962, 4 SCRA 781 .
74
Commissioner of Internal Revenue vs. Lianga Bay Logging Co., Inc., G.R. No. L- 35266, January 21,
1991 , 193 SCRA 92-93 .
DEC ISlON
CT A CASE NO. 7989
Page 42 of43

3) On the deficiency VAT computed from January 25, 2006

until full payment thereof.

(b) Delinquency interest at the rate of 20 °/o per annum on the

total amount due of P3,155,000.00 representing deficiency
final withholding tax, final withholding of VAT and deficiency
VAT and on the deficiency interest which have accrued as
aforestated in (a) computed from February 16, 2009 until full
payment thereof, pursuant to Section 249(C) of the NIRC of
1997, as amended; and

(c) Delinquency interest at the rate of 20°/o per annum on the

deficiency increments for late remittance of withholding taxes
in the amount of P1,055.89 computed from February 16, 2009
until full payment thereof pursuant to Section 249(C) of the
NIRC of 1997, as amended.

SO ORDERED.

_$-
CAESARA. CASANOVA
Associate Justice

WE CONCUR:

q~J4c_ ,~,
fUANITO C. CASTANEDA, JR.
Jz
Associate Justice

~ N , M~~. C~
CIELITO N. MINDARO-GRULLA
Associate Justice
DEC ISION
CTA CASE NO. 7989
Page 43 of 43

ATTESTATION

I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the opinion of
the Court's Division.

~¢UA~c . c:::A"Sf-~~ . CJ
tfUANITO -C. CAST'ANEDA,fJY.- ,
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution and the

Division Chairperson's Attestation, it is hereby certified that the
conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court's
Division.

Presiding Justice