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Taxation is an inherent power of the sovereign exercised through the legislature to impose burdens upon subjects and objects within its jurisdiction for raising revenues to carry out the legitimate objects of the government. Purposes and Objectives 1. For Revenue funds or property to enable the State to promote the general welfare and protection of its citizens. 2. Non-Revenue/Sumptuary Purposes: a. Promotion of general welfare. b. Regulation. c. Reduction of social inequality. d. Encourage economic growth. e. Protectionism. (In case of foreign importation, protective tariffs and customs are imposed for the benefit of local industries.) Basis of the Theory of Taxation 1. Necessity Theory the existence of the government is a necessity. It cannot continue without a means to pay its expenses and therefore has a right to compel all citizens and property within its power to contribute. 2. Reciprocity Theory/Benefits-Protection (Doctrine of Symbiotic Relationship) Every person who is able must contribute his share in the burden of running the government. Characteristics of a sound tax system: 1. Fiscal Adequacy sources of government revenue must be sufficient to meet government expenditures and other public needs. 2. Administrative Feasibility tax laws must be capable of being effectively enforced with the lease inconvenience to the taxpayer. 3. Theoretical Justice a sound tax system must be based on the taxpayers ability to pay. (Ability to pay theory.) Our laws mandate that taxes must be reasonable, fair, just and conscionable. Taxation must be uniform and equitable and that the State must evolve a progressive system of taxation. NATURE OF THE TAXING POWER 1. Inherent Attribute of Sovereignty the moment the State exists, the power to tax automatically exists. BASIS: The Lifeblood Theory Without taxes, the government would be paralyzed for lack of motive power to activate and operate it. 2. Legislative in Character BASIS: Taxes are a grant of the people who are taxed, and the grant
must be made by the immediate representatives of the people. > Power to tax includes the power to destroy. Taxation is a destructive power which interferes with the personal property rights of the people and takes from them a portion of their property for the support of the government. Taxes are the enforced proportional contributions from persons and property levied by the law-making body of the State by virtue of its sovereignty for the support of the government and for public needs. Essential Characteristics of Taxes 1. It is levied by the State which has jurisdiction over the person or property; 2. It is levied by the Law-making (legislative) body of the state; 3. It is an enforced contribution; 4. It is generally payable in money; 5. It is proportionate in character it must be based on the ability to pay in accordance with the constitutional mandate to Congress to evolve a progressive system of taxation; 6. It is levied on persons and property; 7. It is levied for public purpose/s. Requisites of a Valid Tax 1. That either the person or property taxed be within the jurisdiction of the taxing authority; 2. That the assessment and collection of certain kinds of taxes guarantee against injustice to individuals, especially by providing notice and opportunity for hearing; 3. Should be for a public purpose; 4. The rule of taxation shall be uniform; 5. The tax must not impinge on the inherent and constitutional limitations on the power of taxation. Classification of Taxes 1. As to subject matter a. Personal, poll or capitation (Ex: Community Tax) b. Property (Ex: Stocks, Capital Gains Tax) c. Excise or Privilege (Ex: Donors Tax, Estate Tax, VAT, Income Tax) 2. As to who bears the burden and incidence a. Direct tax which is exacted from the very persons who are primarily liable to pay them. (Ex: Income tax, Community Tax) b. Indirect tax wherein the incidence or liability for the payment falls on one person but the burden can be shifted or passed on to another. (Ex: VAT, Percentage Tax) 3. As to purpose a. General, Fiscal or Revenue to raise revenue for government needs. (Income Tax) b. Special, regulatory or sumptuary tax imposed for a special purpose, to achieve some
4. As to how amount is determined a. Specific tax of a fixed amount imposed by the head or number or by some standard of weight or measurement. b. Ad Valorem (Value) tax of a fixed portion of the value of the property with respect to which the tax is assessed. 5. As to taxing authority a. National levied by the National Government. (Ex: NIRC taxes, customs duties.) b. Local or Municipal levied by the local government. (Ex: Real property tax, occupation tax) 6. As to rate a. Progressive or graduated the tax rate increases as the tax base or bracket increases. (Ex: income tax on individuals, estate tax and donors tax) b. Regressive the tax rate decreases as the tax base increases. c. Proportionate tax rate is based on a fixed percentage of the amount of the property, receipts or other bases to be taxed. (Ex: real property tax, VAT and 3% percentage tax) Doctrine of Equitable Doctrine of Set-Off Recoupment vs.
> The Government is not estopped by the mistakes by the mistakes and errors of its agents; erroneous application and enforcement of law by public officers do not bar the subsequent correct application of statutes. Exception: In the interest of justice and fair play, as where injustice will result to the taxpayer.
LIMITATIONS OF TAXATION 1. Inherent Limitations they proceed from the very nature of the taxing power itself. They are otherwise known as elements or characteristics of taxation. a. Territoriality or Situs Situs of Taxation is the place or authority that has the right to impose and collect taxes. Reason: 1. Taxation is an act of sovereignty which could only be exercised within a countrys territorial limits. 2. This is the result if the concept that taxes are paid for the protection and services provided by the taxing authority which could not be provided outside the territorial boundaries of the taxing state. Exception: 1. Where tax laws operate outside territorial jurisdiction. (Ex: Taxation of resident citizens and domestic corporations on their income from sources without the Philippines.) 2. Where tax laws do not operate within the territorial jurisdiction of the state. a. When exempted by treaty obligations; b. When exempted by international comity. Factors that Determine Situs 1. Kind or classification of the tax being levied; 2. Situs of the thing or Property taxed; 3. Citizenship of the taxpayer; 4. Residence of the taxpayer; 5. Source of the income taxed; 6. Situs of the Excise, privilege, business or occupation being taxed. Situs of Subjects of Tax 1. Persons poll, capitation or community taxes are based upon the residence of the taxpayer, regardless of the source of income or location of the property of the taxpayer. 2. Property a. Real property lex rei sitei or lex situs (Where the property is located.) b. Tangible personal property where the property is physically located although the owner resides in another jurisdiction.
Doctrine of Equitable Recoupment Where the refund of a tax illegally or erroneously collected or overpaid by a taxpayer is barred by prescription, a tax presently being assessed against a taxpayer may be recouped or set-off against the tax whose refund is not barred by prescription. (Not allowed in the Philippines) Compensation or Set-Off Compensation shall take place when two persons, in their own right, are creditors and debtors of each other. General Rule: No set-off is admissible against the demands for taxes levied for general or local governmental purpose. Reason: Taxes are not in the nature of contracts between the parties but grow out of duty to, and are positive acts of the government to the making and enforcing of which, the personal consent of the individual taxpayer is not required. Requisites of a Taxpayers Suit 1. That the tax money is being extracted and spent in violation of specific Constitutional protections against abuses of legislative power; 2. That public money is being deflected to any improper purpose; and 3. That the petitioner seeks to restrain respondents from wasting public funds through the enforcement of an invalid or unconstitutional law.
c. Intangible personal property The situs is the domicile of the owner. (Mobilia sequuuntur personam) (Ex: Stocks)
Exception: 1. When the property has acquired a business situs in another jurisdiction, or 2. When the law provides for the situs of the subject of tax d. Income Factors that determine the situs of income tax: 1. Nationality or citizenship of the taxpayer; 2. Residence or domicile of the taxpayer; and 3. Source of the income. e. Excise or Privilege (upon the performance of an act or the engaging in an occupation) depends upon the place where the act is performed or occupation is engaged in (not upon the domicile of the person subject to the excise nor upon the physical location of the property and in connection with the act or occupation taxed.) b. Public Purpose The proceeds of the tax must be used for: 1. The support of the State; or 2. Some recognized object of government or directly to promote the welfare of the community. > It is essential character of the direct object of the expenditure which must determine its validity. (not merely incidental advantage to the public or the State which results fro the promotion of private interests) Tests to determine public purpose: 1. Duty test 2. Promotion or General Welfare test c. International Comity BASIS: The Philippines adopts the generallyaccepted principle of international law as part of the law of the land. (Art. II, Sec. 2, 1987
Constitution)
a. Substantive Due Process Under the authority of a law that is valid or under the Constitution itself, and that it must be reasonable, fair and just. b. Procedural due Process After compliance with fair and reasonable methods of procedure prescribed by law, with notice of hearing, or at least an opportunity to be heard whenever necessary. Due process in taxation does not require: 1. Determination through judicial inquiry of the property subject to tax or the amount of tax to be imposed; 2. Notice and hearing as of amount of the tax or the manner of apportionment. 2. Equal Protection Clause (Sec. 1, Art. III,
Constitution)
Comity the respect accorded by nations to each other because they are sovereign equals. d. Non-delegability of the taxing power General Rule: Delegata potestas non potest delegari (A delegated power cannot be further delegated.) (Power of taxation - Congress cannot re-delegate this delegated power.) Exceptions: 1. Tariff Powers (President); 2. Emergency Powers (President); 3. Executive Agreements and ratify treaties containing tax exemption (President); 4. Delegation to the People at Large (Initiative and Referendum); 5. Delegation to Administrative bodies (power of subordinate legislation)
1987 Constitution)
Equal protection merely requires that all persons (or property, of the same class) subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. (inequality must not be based upon arbitrary classification.) 3. Freedom of the Press (sec. 4, Art. III, 1987
Constitution)
Constitution)
a. The non-establishment clause covers the prohibition to establish a national or official religion since in that case, there would be an appropriation from taxes paid by the people. b. The non-impairment clause basis of tax exemptions granted to religious institutions. Rules on Income of Religious Organizations General Rule: Income Exempt from Taxation if: a. Non-stock corporation; b. Organized and operated exclusively for religious charitable, scientific, athletic or cultural, and social welfare purposes; c. No part of the income inures to the benefit of any member, organizer or any specific person. Exception: Income of such organizations taxable if realized from: a. Productive use of property, real or personal (Ex: Rents, Dividends, Interests) b. Profitable Business Pursuit. 5. No taking of private property without just compensation (Sec. 9, Art. III, 1987
a. Uniformity all taxable articles or properties of the same class shall be taxed at the same rate. b. Different articles or other subjects may be taxed at different rates provided that the rate is uniform on the same class everywhere. c. Equitability requires that the apportionment of the tax should consider the taxpayers ability to shoulder the tax burden, usually measured in terms of wealth, and, if warranted, on the basis of the benefits he receives from the government. d. Taxation may be uniform but inequitable where the amount is excessive or unreasonable. 2. Progressive System of Taxation (Encouraged) as the resources of the taxpayer become higher, his tax rate likewise increases. > It is based on the ability to pay and in implementation of the social justice principle that the more affluent should contribute more for the communitys benefit, and is best exemplified by the increase of income tax rate as net taxable income increases. > The Constitution does not really prohibit regressive taxes. What it simply provides is that Congress shall evolve a progressive system of taxation. This is a mere directive upon Congress not a justiciable right. > In case of VAT, it is an antithesis of progressive taxation being by nature is a regressive one. The principle of progressive system of taxation has no relation with the VAT System inasmuch as the VAT paid by the consumer or business for every goods bought or services enjoyed is the same regardless of income. 3. Non-imprisonment for non-payment of poll tax. (Community Tax) payment thereof not mandatory. (Sec. 20, Art. III, 1987
Constitution.
6. Non-impairment Clause Reason for the rule: When the State grants an exemption on the basis of a contract, consideration is presumed to be paid to the State, and the public is supposed to receive the whole equivalent therefrom. > The non-impairment clause applies to the power of taxation only and not to police power and eminent domain. > It applies only where one party is the Government and the other is a private individual. 7. Law-making Process > Bill should embrace only one subject expressed in the title thereof/ > Three readings on three separate days; > Printed copies in final form distributed three days before passage. 8. Presidential power to grant reprieves, commutations and pardons and remit fines and forfeitures after conviction by final judgment. b. Specific or Direct Constitutional Limitation 1. Taxation shall be uniform and equitable.
Constitution)
> It is not the law but the revenue bill which is required by the Constitution to originate exclusively in the HR. A bill originating in the HR may undergo such extensive changes in the Senate that the result may be a rewriting of the whole. 5. Veto power of the President (Sec. 27[2],
> Any particular item or items in an: Appropriation bill, Revenue bill, tariff bill shall NOT affect item(s) to which he does not object. 6. Delegated authority of President to impose tariff rates, import and export quotas, tonnage and wharfage dues (Sec. 28
7. Tax exemption of charitable institutions, churches, parsonages, convents, all lands, buildings and improvements ACTUALLY,
TAXATION General Principles DIRECTLY or EXCLUSIVELY used. (Art. VI, Sec. MAY, which gives Congress discretion to grant tax 28 [3] 1987 Constitution) exemption.)
8. Voting Requirement for Tax Exemption Reason for the Rule: To prevent indiscriminate grant of tax exemptions. > In granting tax exemptions, an absolute majority of the members of Congress is required, while in cases of withdrawal of such tax exemption, a relative majority is sufficient. (Majority of all the members at least plus 1 of all the members voting separately.) 9. No use of public money or property for religious purposes. (Sec. 28[3], 1987 Constitution) Except: If a priest is assigned to armed forces, penal institutions, government orphanages or leprosarium. 10. Prohibition on use of tax levied for special purpose or special assessments. (Sec.
c. Grants, Endowments, Donations or Contributions used actually, directly and exclusively for educational purposes to: 1. Non-stock, Non-Profit Educational Institution EXEMPT 2. Proprietary Educational Institution TAXABLE DOUBLE TAXATION Double Taxation taxing the same person [same subject or object] twice by the same jurisdiction over the same thing. > Not constitutionally prohibited. It is something not favored in the Philippines but is nevertheless permissible. Kinds of Double Taxation a. Direct Duplicate Taxation/Obnoxious (Strict Sense) The objectionable kind or double taxation in its prohibited sense. This violates the equal protection clause of the Constitution, and is prohibited. Elements: 1. The same property or subject matter is taxed twice when it should be taxed only once. 2. Both taxes are levied for the same purpose. 3. Imposed by the same taxing authority. a. Within the same jurisdiction; b. During the same taxing period; c. Covering the same kind or character of tax. b. Indirect Duplicate Taxation (Broad Sense) The permissible kind of double taxation, this arises in the absence of one or more of the abovementioned elements of direct double taxation. > There is no double taxation if the tax is levied by the LGU and another by the national government. The two are different taxing Authorities. International Juridical Double Taxation The imposition of comparable taxes in two or more states on the same taxpayer in respect of the same subject matter and for identical periods. Methods of reducing the rigors of double taxation: 1. Tax Credits an amount subtracted from an individuals or entitys tax liability to arrive at the total tax liability. 2. Tax Deductions tax write-off or reduction in the gross amount on which a tax is calculated. 3. Reduction of the Philippine income tax rate 4. Tax exemptions grant of immunity to particular persons or corporations from the obligation to pay taxes.
> Money collected on tax levied for special purpose to be used only for such purpose and the balance, if any, shall accrue to the general fund. 11. Supreme Courts power to review judgments or orders of lower courts. (Sec.
Cases involving: The legality of any tax, impost, assessment, or toll; The legality of any penalty imposed in relation to the above. > Only when there is a violation of constitutional limitations or restrictions in a taxing act may judicial interference be had. (Principle of Judicial Non-interference.) 12. Grant of Authority to LGUs > The power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such shall accrue exclusively to the local government. > Automatic release of LGUs just share in the national taxes. > Entitlement to an equitable share in the proceeds of the utilization and development of the national wealth, within their respective areas, in the manner provided by law. 13. Tax exemption granted to non-stock, non-profit educational institutions Summary of Rules on Exemption of Assets and Revenues a. Non-stock, non-profit educational institution actually, directly and exclusively used for educational purposes -EXEMPT (Constitutional provision is self-executing) b. Proprietary Educational Institution TAXABLE (Constitutional provision used permissive term
5. Tax treaties agreement between two countries specifying what items of income will be taxed by the authorities of the country where the income is earned. Methods resorted to by a tax treaty in order to eliminate double taxation: First method An exclusive right to tax is conferred in one of the contracting states; however, for other items of income tax or capital, both states are given the right to tax although the amount of tax that may be imposed by the state of source is limited.
3. Onward shifting when the tax is shifted two or more times either forward or backward. b. Tax Evasion A term that connotes fraud through the use of pretenses and forbidden devices to lessen or defeat taxes. > A scheme used outside of those lawful means and when availed of, it usually subjects the taxpayer to further or additional civil or criminal liabilities. Factors of Tax Evasion: 1. The end to be achieved, i.e. payment of less than that known by the taxpayer to be legally due, or paying no tax when it is shown that the tax is due. 2. An accompanying state of mind which is described as being evil, in bad faith, wilful, or deliberate and not coincidental. 3. a course of action which is unlawful. Proof of Tax Evasion: 1. Failure to declare for taxation purposes true and actual income derived from business for 2 consecutive years. 2. Substantial under-declaration of income in the tax returns of the taxpayer for 4 consecutive years coupled with intentional overstatement of deductions. c. Tax Avoidance The exploitation by the taxpayer of legally permissible alternative tax rates or methods of assessing taxable property or income, in order to avoid or reduce tax liability. (Tax Planning which is encouraged to determine what will be beneficial to the taxpayer.) > This method must be used by the taxpayer in good faith and at arms length. > A taxpayer has legal right to decrease the amount of what would otherwise be his taxes or altogether avoid them by means which the law permits. Ex: Availing of all deductions allowed by law or refraining from engaging in activities subject to tax. d. Capitalization The reduction in the price of the taxed object equal to the capitalized value of future taxes which the purchaser expects to be called upon to pay. e. Transformation The manufacturer or producer upon whom the tax has been imposed, fearing the loss of his market if he should add the tax to the price, pays the tax and endeavors to recoup himself by improving his process of production, thereby producing his units at a lower cost. (Manufacturer pays the tax instead of adding the tax to the price of his product.) f. Tax exemption is the grant of immunity to particular persons or corporations or to persons or
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Second method The state of source is given a full or limited right to tax together with the state of residence. In this case, the treaty makes it incumbent upon the state of residence to allow relief in order to avoid double taxation. Most Favored Nation Clause in Tax Treaties The purpose of the most favored nation clause is to grant to the contracting party treatment not less favourable than that which has been or may be granted to the MOST FAVORE among other countries. It is intended to establish the principle of equality of international treatment by providing that the citizens or subjects of the contracting nations may enjoy the privileges accorded by either party to those of the most favored nation. FORMS OF ESCAPE FROM TAXATION Six forms of basic escape from taxation: a. Shifting The transfer of the burden of tax by the original payer or the one on whom the tax was assessed (impact of taxation/statutory taxpayer) or imposed to another or someone else (incidence of taxation). > Direct tax cannot be shifted when it is purely personal or when it has no relation to any business dealings of the taxpayer. > Impact of Taxation point on which tax is originally imposed or the one on whom the tax is formally assessed. > Incidence of Taxation point on which the tax burden finally rests or settles down. Illustration: VAT Seller required by law to pay tax. Buyer to whom the burden is actually shifted or passed on. Kinds of Shifting: 1. Forward shifting when the burden or tax is transferred from a factor of production through the factors of distribution until it finally settles on the ultimate purchaser or consumer. 2. Backward shifting when the burden is transferred from the consumer through the factors of distribution to the factors of production.
corporations of a particular class from a tax which persons or corporations generally within the same state or taxing district are obliged to pay. Principle of Strictissimi Juris
Strictissimi Juris The most strict right or law. In general, when a person receives an advantage, as the grant of a license, he is bound to conform strictly to the exercise of the rights given him by it, and in case of a dispute, it will be strictly construed. Laws granting tax exemption are construed in strictissimi juris against the taxpayer and liberally in favour of the taxing power. > Taxation is the rule and exemption is the exception. > The law does not look with favour on tax exemptions and that he who would seek to be thus privileged must justify it by words too plain to be mistaken and too categorical to be misinterpreted. Reasons for the Application of Strictissimi Juris 1. Lifeblood Theory - Without taxes, the government would be paralyzed for lack of motive power to activate and operate it. 2. To minimize differential treatment and foster impartiality, fairness and equality or treatment among taxpayers. 3. Taxation is a high prerogative of sovereignty whose relinquishment is never presumed. Exceptions to the application of Strictissimi Juris 1. When the statute granting exemption provides for liberal construction thereof. 2. In case of special taxes relating to special cases and affecting only special classes of persons. 3. If exemptions refer to the public property. 4. in cases of exemptions granted to religious, charitable and educational institutions or their property. 5. In cases of exemptions in favour of the government, its political subdivisions or instrumentalities. Kinds of Tax Exemption 1. Express expressly granted by organic or statute law. 2. Implied Whenever particular persons properties or excises are deemed exempt as they fall outside the scope of the taxing provision itself. 3. Contractual tax exemption in consideration of a contractual agreement with the government. Revocation of Tax Exemption Since taxation is the rule and exemption is the exception, the exemption may thus be withdrawn at the pleasure of the taxing authority. Restrictions on Revocation
1. Tax laws are prospective in operation (subject to exceptions). 2. Legislative intention must be considered Tax statutes are to receive a reasonable construction with a view to carrying out their purpose and intent. 3. Where there is doubt in every case of doubt, in tax statutes imposing payment of tax, laws are construed strictly against the government and liberally in favour of the taxpayer. Taxes, being burdens, are not to be presumed beyond what the statue expressly and clearly declares. 4. Where language is plain Rule of strict construction against the government does not apply where the language of the tax is plain and there is no doubt as to the legislative intent. The words employed are to be given their ordinary meaning. 5. Where taxpayer claims exemption Exemptions are construed strictly against the one who asserts the claim of exemption. Public purpose is always presumed. 6. Provisions of the taxing act are not to be extended by implication. 7. Tax laws are special laws and prevail over general laws. Application of Tax Laws General Rule: Tax laws are prospective in operation. Exception: While it is not favored, a statute may nevertheless operate retroactively provided it is expressly declared or is clearly the legislative intent. Exceptions to non-retroactive application of tax rulings to taxpayers: 1. While the taxpayer deliberately misstates or omits material facts from his return or any document required of him by the BIR; 2. Where the facts subsequently gathered by the BIR are materially different from the facts on which the ruling is based, or 3. Where the taxpayer acted in bad faith. KINDS OF PROVISIONS OF TAX LAWS 1. Mandatory those provisions intended for the security of the citizens or which are designed to insure equality of taxation or certainty as to the nature and amount of each persons tax. 2. Directory those provisions designed merely for the information or direction of officers or to secure methodical and systematic modes of proceedings. Importance of Distinction The omission to follow mandatory provisions renders invalid the act or proceeding to which it relates while the omission to follow directory provisions does not involve such consequence. Sources of Tax Laws
Taxation
Taxation is the inherent power of the sovereign, exercised through the legislature, to impose
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Taxes
Taxes are the enforced proportional contributions from persons and property levied by the lawmaking body of the State by virtue of its sovereignty for the support of the government and all public needs.
Purposes of taxation
1. Revenue or fiscal: The primary purpose of taxation on the part of the government is to provide funds or property with which to promote the general welfare and the protection of its citizens and to enable it to finance its multifarious activities. 2. Non-revenue or regulatory: Taxation may also be employed for purposes of regulation or control. a) Imposition of tariffs on imported goods to protect local industries. b) The adoption of progressively higher tax rates to reduce inequalities in wealth and income. c) The increase or decrease of taxes to prevent inflation or ward off depression.
Tariff / Duties
The term tariff and custom duties are used interchangeably in the Tariff and Customs Code or PD No. 1464. Customs duties, or simply duties, are taxes imposed on goods exported from or imported into a country. Custom duties are really taxes but the latter term is broader in scope. On the other hand, tariff may be used in one of three senses: 1. A book of rates drawn usually in alphabetical order containing the names of several kinds of merchandise with the corresponding duties to be paid for the same; or
Benefit-received principle
This principle serves as the basis of taxation and is founded on the reciprocal duties of protection and
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Regulatory tax
Examples: motor vehicle registration fee, sugar levy, coconut levy, regulation of non-useful occupations
Toll v. tax
1. Toll is a sum of money for the use of something. It is the consideration which is paid for the use of a road, bridge, or the like, of a public nature. Taxes, on the other hand, are enforced proportional contributions from persons and property levied by the State by virtue of its sovereignty for the support of the government and all public needs. 2. Toll is a demand of proprietorship; tax is a demand of sovereignty.
Instances when license fees could exceed cost of regulation, control or administration
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Tax v. penalty
1. Penalty is any sanction imposed as a punishment for violation of law or for acts deemed injurious; taxes are enforced proportional contributions from persons and property levied by the State by virtue of its sovereignty for the support of the government and all public needs. 2. Penalty is designed to regulate conduct; taxes are generally intended to generate revenue. 3. Penalty may be imposed by the government or by private individuals or entities; taxes only by the government.
Requisites of compensation
1. That each one of the obligor be bound principally, and that he be at the same time a principal creditor of the other. 2. That both debts consist in a sum of money, or if the things due are consumable, they be of the same kind and also of the same quality if the latter has been stated.
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3.
A direct tax is demanded from the person who also shoulders the burden of the tax. It is a tax which the taxpayer is directly or primarily liable and which he or she cannot shift to another. 2. Indirect tax
4. 5. B. C.
An indirect tax is demanded from a person in the expectation and intention that he or she shall indemnify himself or herself at the expense of another, falling finally upon the ultimate purchaser or consumer. A tax which the taxpayer can shift to another. AS TO SCOPE OF THE TAX 1. National tax national
D. Taxes/Tax incentives under special laws CLASSIFICATION OF TAXES AS TO SUBJECT MATTER OR OBJECT 1. Personal, poll or capitation tax
Tax of a fixed amount imposed on persons residing within a specified territory, whether citizens or not, without regard to their property or the occupation or business in which they may be engaged, i.e. community tax. 2. Property tax
A local tax is imposed by municipal corporations or local government units (LGUs). AS TO THE DETERMINATION OF AMOUNT 1. Specific tax
Tax imposed on property, real or personal, in proportion to its value or in accordance with some other reasonable method of apportionment. 3. Excise tax
A charge imposed upon the performance of an act, the enjoyment of a privilege, or the engaging in an occupation. AS TO PURPOSE 1. General/fiscal/revenue tax
A specific tax is a tax of a fixed amount imposed by the head or number or by some other standard of weight or measurement. It requires no assessment other than the listing or classification of the objects to be taxed.
2.
Ad valorem tax
A general/fiscal/revenue tax is that imposed for the purpose of raising public funds for the service of the government. 2. Special/regulatory tax
An ad valorem tax is a tax of a fixed proportion of the value of the property with respect to which the tax is assessed. It requires the intervention of assessors or appraisers to estimate the value of such property before the amount due from each taxpayer can be determined. AS TO GRADATION OR RATE
A special or regulatory tax is imposed primarily for the regulation of useful or non-useful occupation or enterprises and secondarily only for the purpose of raising public funds.
1.
Proportional tax
Tax based on a fixed percentage of the amount of the property receipts or other basis to be taxed. Example: real estate tax.
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Tax the rate of which increases as the tax base or bracket increases. Example: income tax. Digressive tax rate: progressive rate stops at a certain point. Progression halts at a particular stage. 3. Regressive tax
Tax the rate of which decreases as the tax base or bracket increases. There is no such tax in the Philippines. ASPECTS OF TAXATION
It means that the sources of revenue should be sufficient to meet the demands of public expenditures. [Chavez v. Ongpin, 186 SCRA 331] 2. Equality or theoretical justice
It means that the tax burden should be proportionate to the taxpayers ability to pay. This is the so-called ability to pay principle. 3. Administrative feasibility
It means that tax laws should be capable of convenient, just and effective administration.
Constitutional mandate
The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. [Section 28(1), Article VI, Constitution] NATURE AND LIMITATIONS OF THE POWER OF TAXATION NATURE OF THE POWER OF TAXATION
DEFINITI ON
Only the governme nt or its political subdivision s Enforced contributio n is demanded for the support of the governme nt Operates upon a community or class of individuals Money contribute d in the concept of taxes becomes part of public funds Assumed that the individual
AMOUNT OF IMPOSITI ON
No amount imposed but rather the owner is paid the market value of the property taken
PURPOSE
Persons Affected
Operates on an individual as the owner of a particular property Transfer of the right to property whether it be ownership or a lesser right Person affected receives
Subject to certain Constitutio nal limitations (e.g. inferior to impairment of contracts clause)
Power to tax involves the power to destroy so it must be exercised with caution
Chief Justice Marshall declared that the power to tax is also called the power to destroy. Therefore, it should be exercised with caution to minimize injury to the proprietary rights of the taxpayer. It must be exercised fairly, equally and uniformly, less the tax collector kills the hen that lays the golden egg. And in order to maintain the general publics trust and confidence in the government, this power must be used justly and not treacherously. [Chief Justice Marshall in McCulloch v. Maryland, reiterated in Roxas v. CTA, 23 SCRA 276] Justice Holmes seemingly contradicted the Marshallian view by declaring in Panhandle Oil
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EFFECT
BENEFITS RECEIVED
TAXATION General Principles Company v. Mississippi that the power to tax is The power of taxation, being purely legislative, not the power to destroy while this court sits. Congress cannot delegate such power. This
limitation arises from the doctrine of separation of powers among the three branches of government.
TAXPAYERS SUIT
Taxpayers suit
A case where the act complained of directly involves the illegal disbursement of public funds derived from taxation. Taxpayers have locus standi to question the validity of tax measures or illegal expenditures of public money. In such cases, they are parties in interest who will be prejudiced or benefited by the avails of the suit. On the other hand, public officials have locus standi because it is their duty to protect public interest. The general rule is that not only persons individually affected but also taxpayers have sufficient interest of preventing the illegal expenditures of money raised by taxation. They may, therefore, question in the proper court the constitutionality of statutes requiring the expenditure of public funds. But a taxpayer is not relieved from the obligation of paying a tax because of his belief that it is being misappropriated by certain officials, for otherwise, collection of taxes would be hampered and this may result in the paralyzation of important governmental functions.
the
competence of
the
1. The subject or object to be taxed. 2. The purpose of the tax so long as it is a public purpose. 3. The amount or rate of the tax. 4. The manner, means, and agencies of collection of the tax.
Lozada v. COMELEC
In this case, the petitioner filed a taxpayers suit to compel the COMELEC to schedule a special election for vacancies in the Batasang Pambansa. The Supreme Court held that this is not a taxpayers suit as nowhere is it alleged that tax is being illegally spent. SC reiterated that it is only when an act complained of, which may include a legislative enactment of a statute, involves the illegal expenditure of public money that the so-called taxpayer suit may be allowed.
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from a singling out of one particular class for taxation, or exemption, infringe no Constitutional limitation. Power to tax cannot be delegated
3. tonnage and wharfage dues; and 4. other duties or imposts within the national development program of the government. This authorization is embodied in Section 401 of the Tariff and Customs Code which is also called the flexible tariff clause.
It has been said that the best test of rightful taxation is that the proceeds of the tax must be used: a) for the support of the government; or b) some of the recognized objects of government; or c) to promote the welfare of the community.
Property outside ones jurisdiction does not receive any protection from the state. CONSTITUTIONAL LIMITATIONS
Constitutional limitations
1. Due process of law 2. Equal protection of laws 3. Rule of uniformity and equity in taxation 4. Prohibition against imprisonment for nonpayment of poll tax 5. Prohibition against impairment of obligation of contracts 6. Prohibition against infringement of religious freedom 7. Prohibition against appropriation of proceeds of taxation for the use, benefit, or support of any church 8. Prohibition against taxation of religious, charitable and educational entities 9. Prohibition against taxation of non-stock, non-profit educational institutions 10. Others a. Grant of tax exemption b. Veto of appropriation, revenue, tariff bills by the President c. Non-impairment of the SC jurisdiction d. Revenue bills shall originate exclusively from the House of Representatives e. Infringement of press freedom f. Grant of franchise
Reasons entities
for
exempting
governmental
Government will be taxing itself to raise money for itself. Immunity is necessary in order that governmental functions will not be impeded.
Poll tax
Poll tax is a tax of fixed amount imposed on residents within a specific territory regardless of citizenship, business or profession. Example is community tax.
and equitable.
The exemption in favor of property used exclusively for charitable or educational purposes is not limited to property actually indispensable therefore, but extends to facilities which are incidental to and reasonably necessary for the accomplishment of said purposes. [Abra Valley College v. Aquino, 162 SCRA 106]
Prohibition against taxation of the revenues and assets of non-stock, non-profit educational institutions
All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law. [Section 4, Article XIV, Constitution] This exemption from corporate income tax is embodied in Section 30 of the NIRC which includes a non-stock, non-profit educational institution. Note however the last paragraph of Section 30 which states: Notwithstanding the provisions in
Prohibition against appropriation of proceeds of taxation for the use, benefit, or support of any church Section 29, Article VI, Constitution
1. No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. 2. No public money or property shall be appropriated, applied, paid, or employed directly or indirectly, for the use, benefit, or support of any church, denomination, sectarian institution or system of religion, or of any priest, preacher, minister or other religious teacher, or dignitary as such except when such priest, preacher, minister or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. 3. All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the government.
the preceding paragraphs, the income of whatever kind and character of the foregoing organizations from any of their property, real or personal, or from any of their activities conducted for profit, regardless of the disposition made of such income, shall be subject to tax imposed under this Code. Department of Finance Order 145-85
Non-stock, non-profit educational institutions are exempt from taxes on all their revenues and assets used actually, directly and exclusively for educational purposes. However, they shall be subject to internal revenue tax on income from trade, business or other activity, the conduct of which is not related to the exercise or performance by such educational institution of its educational purposes or functions. Interest income shall be exempt only when used directly and exclusively for educational purposes. To substantiate this claim, the institution must submit an annual information return and duly audited financial statement. A certification of actual utilization and the Board resolution or the proposed project to be funded out of the money deposited in banks shall also be submitted.
Prohibition against taxation of real property actually, directly and exclusively used for religious, charitable and educational purposes
Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. [Section 28 (3) , Article VI, Constitution]
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Taxation of institutions
proprietary
educational
Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for investment. [Section 4 (3), Article XIV, Constitution] Under Section 27(B) of the NIRC, proprietary educational institutions and hospitals which are non-profit shall pay a tax of ten percent (10%) on their taxable income except for passive incomes which are subject to different tax rates.
welfare, educational and charitable non-profit corporation. It conducts various programs and
activities that are beneficial to the public, especially the young people, pursuant to its religious, educational and charitable objectives. In this case, the Supreme Court held that the income derived by YMCA from leasing out a portion of its premises to small shop owners, like restaurant and canteen operators, and from parking fees collected from non-members are taxable income. First, the constitutional tax exemption granted to non-stock, non-profit educational institutions does not find application because YMCA is not an educational institution. The term educational institution or institution of learning has acquired a well known technical meaning. Under the Education Act of 1982, such term refers to schools. The school system is synonymous with formal education, which refers to the hierarchically structured and chronologically graded learnings organized and provided by the formal school system and for which certification is required in order for the learner to progress through the grades or move to the higher levels. A perusal of the articles of incorporation of YMCA does not show that it established such a system. Second, even if it be exempt under Section 30 of the NIRC as a non-profit, non-stock educational corporation, the income from the rent of its premises and parking fees is not covered by the exemption, according to the last paragraph of the same section. Section 30 provides that income of
No law granting any tax exemption shall be passed without the concurrence of a majority of all Members of Congress. [Section 28 (4), Article VI, Constitution] 2. Veto of appropriation, revenue, or tariff bills by the President The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object. [Section 27 (2) Article VI, Constitution] An item in a bill refers to particulars, details, the distinct and severable parts of a bill. In budgetary legislation, an item is an individual sum of money dedicated to a stated purpose. [Gonzales v. Macaraig, 191 SCRA 452] 3. Non-impairment of the jurisdiction of the Supreme Court Congress cannot take away from the Supreme Court the power given to it by the Constitution as the final arbiter of tax cases. The Supreme Court shall have the following powers:
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Situs of taxation
Literally, situs of taxation means place of taxation. It is the State or political unit which has jurisdiction to impose a particular tax. The determination of the situs of taxation depends on various factors including the: 1. Nature of the tax; 2. Subject matter property, act or activity);
thereof
(i.e.
person,
3. Possible protection and benefit that may accrue both to the government and the taxpayer; 4. Residence or citizenship of the taxpayer; and 5. Source of the income.
Situs of tax on real property Situs is where the property is located pursuant to the principle of lex rei sitae. This applies whether
or not the owner is a resident of the place where the property is located. This is so because the taxing authority has control over the property which is of a fixed and stationary character. The place where the real property is located gives protection to the real property, hence, the owner must support the government of that place.
This limitation does not mean that the press is exempt from taxation. Taxation constitutes an infringement of press freedom when it operates as a prior restraint to the exercise of this constitutional right. When the tax is imposed on the receipts or the income of the press it is a valid exercise of the sovereign prerogative. 6. Grant of franchise
Tax exemptions included in the grant of a franchise may be revoked by another law as it is specifically provided in the Constitution that the grant of any franchise is always subject to
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Multiplicity of situs
Multiplicity of situs, or the taxation of the same income or intangible subject in several taxing jurisdictions, arises from various factors: 1. The variance in the concept of domicile for tax purposes; 2. Multiple distinct relationships that may arise with respect to intangible personal property; or 3. The use to which the property may have been devoted all of which may receive the protection of the laws of jurisdictions other than the domicile of the owner thereto. The remedy to avoid or reduce the consequent burden in case of multiplicity of situs is either to: 1. Provide exemptions or allowance deduction or tax credit for foreign taxes; or 2. Enter into tax treaties with other States. DOUBLE TAXATION of
Double taxation in the strict sense v. double taxation in the broad sense
In its strict sense, referred to as direct duplicate taxation, double taxation means: 1. taxing twice; 2. by the same taxing authority; 3. within the same jurisdiction or taxing district; 4. for the same purpose; 5. in the same year or taxing period; 6. some of the property in the territory. In its broad sense, referred to as indirect double taxation, double taxation is taxation other than direct duplicate taxation. It extends to all cases in which there is a burden of two or more impositions.
Note: With the exception of evasion, all are legal means of escape. SHIFTING
Shifting
Shifting is the transfer of the burden of a tax by the original payer or the one on whom the tax was assessed or imposed to someone else. It should be borne in mind that what is transferred is not the payment of the tax but the burden of the tax.
TAXATION General Principles wholesaler, and finally to the manufacturer or Tax evasion
producer. 3. Onward shifting When the tax is shifted two or more times either forward or backward. Thus, a transfer from the seller to the purchaser involves one shift; from the producer to the wholesaler, then to retailer, we have two shifts; and if the tax is transferred again to the purchaser by the retailer, we have three shifts in all. Tax evasion is the use by the taxpayer of illegal or fraudulent means to defeat or lessen the payment of a tax. It is also known as tax dodging. It is punishable by law. Tax evasion is a term that connotes fraud through the use of pretenses or forbidden devices to lessen or defeat taxes. [Yutivo v. Court of Tax Appeals, 1 SCRA 160] Example: Deliberate failure to report a taxable income or property; deliberate reduction of income that has been received.
Statutory taxpayer
The statutory taxpayer is the person required by law to pay the tax or the one on whom the tax is formally assessed. In short, he or she is the subject of the tax. In direct taxes, the statutory taxpayer is the one who shoulders the burden of the tax while in indirect taxes, the statutory taxpayer is the one who pay the tax to the government but the burden can be passed to another person or entity.
Tax avoidance
Tax avoidance is the exploitation by the taxpayer of legally permissible alternative tax rates or methods of assessing taxable property or income in order to avoid or reduce tax liability. It is politely
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TAX EXEMPTION
Tax exemption
It is the grant of immunity to particular persons or corporations or to persons or corporations of a particular class from a tax which persons and corporations generally within the same state or taxing district are obliged to pay. It is an immunity or privilege; it is freedom from a financial charge or burden to which others are subjected. Exemption is allowed only if there is a clear provision therefor. It is not necessarily discriminatory as long as there is a reasonable foundation or rational basis.
Does provision in a statute granting exemption from all taxes include indirect taxes?
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Interpretation exemptions
General rule
of
laws
granting
tax
In the construction of tax statutes, exemptions are not favored and are construed strictissimi juris against the taxpayer. The fundamental theory is that all taxable property should bear its share in the cost and expense of the government. Taxation is the rule and exemption is the exemption. He who claims exemption must be able to justify his claim or right thereto by a grant express in terms too plain to be mistaken and too categorical to be misinterpreted. If not expressly mentioned in the law, it must be at least within its purview by clear legislative intent. Exceptions 1. When the law itself expressly provides for a liberal construction thereof. 2. In cases of exemptions granted to religious, charitable and educational institutions or to the government or its agencies or to public property because the general rule is that they are exempt from tax.
Municipal corporations are clothed with no inherent power to tax or to grant tax exemptions. But the moment the power to impose a particular tax is granted, they also have the power to grant exemption therefrom unless forbidden by some provision of the Constitution or the law. The legislature may delegate its power to grant tax exemptions to the same extent that it may exercise the power to exempt.
Strict interpretation does not apply to the government and its agencies
Petitioner cannot invoke the rule on stritissimi juris with respect to the interpretation of statutes granting tax exemptions to the NPC. The rule on strict interpretation does not apply in the case of exemptions in favor of a political subdivision or instrumentality of the government. [Maceda v. Macaraig]
Tax amnesty
Tax amnesty, being a general pardon or intentional overlooking by the State of its authority to impose penalties on persons otherwise guilty of evasion or violation of a revenue or tax law, partakes of an absolute forgiveness or waiver by the government of its right to collect what otherwise would be due it and, in this sense, prejudicial thereto. It is granted particularly to tax evaders who wish to relent and are willing to reform, thus giving them a chance to do so and thereby become a part of the new society with a clean slate. [ Republic v. Intermediate Appellate Court, 196 SCRA 335] Like tax exemption, tax amnesty is never favored nor presumed in law. It is granted by statute. The terms of the amnesty must also be construed against the taxpayer and liberally in favor of the government.
AND
Tax treaty
A tax treaty is one of the sources of our law on taxation. The Philippine Government usually enters into tax treaties in order to avoid or minimize the effects of double taxation. A treaty has the force and effect of law.
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and
an executive branch of the government of a particular law, although not binding upon courts, must be given weight as the construction came from the branch of the government which is called upon to implement the law.
The Secretary of Finance, upon recommendation of the Commissioner of Internal Revenue, shall promulgate needful rules and regulations for the effective enforcement of the provisions of the NIRC. This is without prejudice to the power of the Commissioner of Internal Revenue to make rulings or opinions in connection with the implementation of the provisions of internal revenue laws, including rulings on the classification of articles for sales tax and similar purposes.
validity
of
rules
and
1. They must not be contrary to law and the Constitution. 2. They must be published in the Official Gazette or a newspaper of general circulation.
BIR rulings
Administrative rulings, known as BIR rulings, are the less general interpretation of tax laws being issued from time to time by the Commissioner of
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Exception: While it is not favored, a statute may nevertheless operate retroactively provided it is expressly declared or is clearly the legislative intent. But a tax law should not be given retroactive application when it would be harsh and oppressive.
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