[C.T.A. CASE NO. 6268. September 12, 2002.

]
DONALD L. SMITH, petitioner, vs. COMMISSIONER OF INTERNAL REVENUE, respondent.
DECISION
This Petition for Review involves a claim for refund in the amount of One Million Five Hundred Thirty Three Thousand Six
Hundred and Sixty Pesos & 70/100 (P1,533,660.70) allegedly representing the income tax erroneously paid by herein
petitioner for taxable year 1998. cTESIa
The antecedent facts of the case are as follows:
Petitioner is a citizen of the United States, of legal age, single, and is an employee of Coastal Subic Bay Terminal, Inc., with
address at 42A Grayling Street, West Kalayaan, Subic Bay Freeport Zone, Philippines. He was employed as Controller of
Coastal Subic Bay Terminal Inc. in 1998 (pars. 1 and 3, Joint Stipulation of Facts).
Coastal Subic Bay Terminal Inc. is a business entity located within the Subic Special Economic Zone, as created by Republic
Act 7227, and was issued by the Subic Bay Metropolitan Authority a Certificate of Registration and Tax Exemption No. 93-
0019 on December 4, 1997, valid until December 4, 1998 (par. 5 Joint Stipulation of Facts).
On April 15, 1999, petitioner, with tax identification number 170-302-240, filed his annual income tax return and paid
P1,533,660.70 in compensation income taxes for the income he derived from his employment with Coastal Subic Bay
Terminal, Inc. (Annexes A, B and C, Petition for Review).
Claiming that the payment of tax on his compensation income was erroneous, petitioner filed a written claim for refund
with the Bureau of Internal Revenue (BIR) on April 5, 2001 (par. 7, Joint Stipulation of Facts). As there was no immediate
action on his claim for refund and the two-year prescriptive period was about to lapse, petitioner elevated his case to this
court by way of Petition for Review on April 6, 2001.
On May 10, 2001, petitioner filed a Manifestation and Motion to Correct Petition for Review. As alleged, said errors were due
to some typographical errors committed in the finalization of the draft-petition. The motion was granted in open court on
May 25, 2001 and confirmed in a resolution dated May 31, 2001.
On August 14, 2001, herein respondent filed his Answer, raising the following Special and Affirmative Defenses:
1. Petitioner's alleged claim for refund is still subject to administrative routinary investigation/examination by
respondent's bureau.
2. Section 12(c) of RA 7227, otherwise known as the Bases Conversion and Development Act of 1992", relied upon by
petitioner in claiming the refund provides:
Section 12. Subic Special Economic Zones.
xxx xxx xxx
(c) The provision of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and national,
shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross income
earned by all businesses and enterprises within the Subic Special Economic Zone shall be remitted to the National
Government, one percent (1%) each to the local government units affected by the declaration of the zone in proportion to
their population area, and other factors. In addition, there is hereby established a development fund of one percent (1%) of
the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be utilized for the
development of municipalities outside the City of Olongapo and the Municipality of Subic, and other municipalities
contiguous to the base areas.
In case of conflict between national and local laws with respect to tax exemption privileges in the Subic Special Economic
Zone, the same shall be resolved in favor of the latter. (Emphasis Supplied)
Under the foregoing provisions, only business establishments operating within the Subic Special Economic Zone are exempt
from national and local taxes. Petitioner is not covered by the exemption granted under Section 12 (c) of Republic Act 7227,
as implemented by Section 4 of Revenue Regulations No. 1-95.
3. Petitioner's claim for refund lacks any basis in law.
4. In an action for refund/credit, the burden of proof is upon the taxpayer to establish its right to refund and failure to
sustain the burden is fatal to the action for refund.
Upon approval of their Joint Stipulation of Facts and Issues, the parties agreed to dispense with the trial and submit this
case for decision, considering that the issues involved are purely legal.
The issues to be resolved by this court in the case at bar are as follows:
1. Whether or not aliens working within the Subic Special Economic Zone are subject to Philippine income taxes on
income earned from such employment;
2. Whether or not petitioner is entitled to a refund or tax credit for income taxes paid on compensation earned from
working within the Subic Special Economic Zone;
3. Whether or not Section 12 (c) of Republic Act No. 7227 applies to petitioner.
With respect to the first issue, petitioner posits the view that the entire territory known as Subic Special Economic Zone
(SSEZ, for brevity) is a tax-free territory and as such, all income derived within the zone, including that of an alien
individual, is exempt from income tax and other taxes. Consequently, according to petitioner, SSEZ is beyond the coverage
of RA 8424, otherwise known as the National Internal Revenue Code and the Tariff and Customs Code, as well as other
Philippine tax laws.
Said contention deserves scant consideration.
The law in point is RA 7227, particularly Section 12 (c), to quote:
Section 12. Subic Special Economic Zones.
(c) The provision of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and national,
shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross income
earned by all businesses and enterprises within the Subic Special Economic Zone shall be remitted to the National
Government, one percent (1%) each to the local government units affected by the declaration of the zone in proportion to
their population area, and other factors. In addition, there is hereby established a development fund of one percent (1%) of
the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be utilized for the
development of the municipalities outside the City of Olongapo and the Municipality of Subic, and other municipalities
contiguous to the base areas.
In case of conflict between national and local laws with respect to tax exemption privileges in the Subic Special Economic
Zone, the same shall be resolved in favor of the latter (Emphasis ours).
In interpreting the aforequoted section of RA 7227, fundamental rules of construction shall accordingly be applied. The
phrase "no taxes, local and national shall be imposed within the SSEZ" shall not be treated in isolation with the other
subsequent phrases as it might convey a meaning different from that of its context taken as a whole. It is important that
every section, provision or clause of the statute be expounded by reference to each other in order to arrive at the effect
contemplated by the legislature (page 61, Agpalo, Statutory Construction, 1995 ed.). Thus, the phrase "no taxes, local and
national, shall be imposed within the SSEZ" must be read together with the following sentence "In lieu of paying taxes, 3%
of the gross income earned by all businesses and enterprises within the SSEZ shall be remitted to the National
Government, one percent (1%) each to the local government units affected by the declaration of the zone in proportion to
their population area, and other factors. In addition, there is hereby established a development fund of one percent (1%) of
the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be utilized for the
development of the municipalities outside the City of Olongapo and the Municipality of Subic, and other municipalities
contiguous to the base areas." This phrase belies petitioner's assertion that SSEZ is indeed a tax-free territory. The term "in
lieu of paying taxes" as used in the law does not constitute an absolute exemption from taxation. While spared from
national and local taxes, businesses and enterprises within the SSEZ are subjected to the said tax base on gross income.
No matter what legal jargon is used, the said taxes are in fact taxes imposed on businesses or enterprises operating within
the SSEZ. Thus, it is incorrect to say that SSEZ is actually a tax-free territory.
Individual aliens employed within the Subic Special Economic Zone (SSEZ) are not exempt from the awesome power of
Philippine taxation especially so that they sourced out their earnings from within the Philippines. The secured area of SSEZ,
which is virtually delineated in metes and bounds by Proclamation No. 532, issued by the then President Fidel Ramos on
February 1, 1995, is in reality part of the territorial jurisdiction of the Philippines. To buttress the point that SSEZ is indeed
within the Philippine jurisdiction, Section 12 (h) of RA 7227, actually placed the fenced-off area of SSEZ under the
responsibility of the Philippine National Government, thus,
"The defense of the zone and the security of its perimeters shall be the responsibility of the National Government in
coordination with the Subic Bay Metropolitan Authority. The Subic Bay Metropolitan Authority shall provide and establish its
own internal security and fire-fighting forces."
Such being the case, all subjects over which the Philippines can exercise dominion are necessarily objects of taxation. As
such, all subjects of taxation within its jurisdiction are required to pay tax in exchange of the protection that the state gives
(Commissioner of Internal Revenue vs. Algue, Inc., et al., L-28896, February 17, 1988). Thus, the SSEZ, being within the
territorial boundaries of the Philippines, the aliens residing therein, who enjoy the benefits and protection from the said
state are not exempt from contributing their share in the running of the government. They have the bounden duty to
surrender part of their hard-earned income to the taxing authorities. SAHaTc
Contrary to petitioner's assertion, the National Internal Revenue Code operates with equal force and effect to all subjects
within the territorial boundary of the Philippines. Being a general law, it covers all persons, properties and privileges, which
are found within its jurisdictional limit. With the enactment of RA 7227, there came an exception to the general rule. Being
a special law, it prevails over the general law but only in so far as a certain group of persons or things is concerned. Since
the law, in granting tax incentives, only made mention of businesses and enterprises within the SSEZ, it follows then that
said RA 7227 operates only on the said group. As no mention was made to individual taxpayers being tax-exempt, it follows
that they still fall within the ambit of the general law pursuant to the maxim excepto firmat regulam in casibus non
exceptis, a thing not being excepted must be regarded as coming within the purview of the general rule.
Parenthetically, there is not much of a substantial difference between individual citizen and an individual resident alien
working in the Philippines as far as income taxation is concerned. In fact, under the National Internal Revenue Code (NIRC)
of 1997, both classes of individual taxpayers are similarly taxed under Section 24(A). The distinction lies only on the source
of income to be taxed: While a resident citizen is taxed on all income from within and without the Philippines, the resident
alien is taxed only on income from within the Philippines.
Proceeding now to the issue of whether herein petitioner is entitled to a refund of income taxes paid on compensation
earned from working within the SSEZ, we answer in the negative. As previously discussed, resident aliens within the SSEZ
are still subject to the NIRC as far as their income from within the Philippines is concerned. Accordingly, no refund of the
said tax can be granted to petitioner as the said tax due the petitioner in the amount of P1,533,660.70 was correctly
remitted to the BIR.
Anent the last issue of whether Section 12(c) of RA 7227 applies to petitioner, again, we rule in the negative. A close
reading of Section 12 (c) would reveal that the exemption from taxes, local or national, is actually intended to benefit only
those registered businesses and establishments operating within the territory and not to individual taxpayers working
within its parameters. The grant of said incentive is premised on the fact that the influx of new investments in our economy
could very well meet the country's avowed policy of accelerating economic growth and development.
As held by the Supreme Court in the case of Tiu vs. Court of Appeals, 301 SCRA 278, January 20, 1999, thus:
"From the above provisions of the law, it can easily be deduced that the real concern of RA 7227 is to convert the lands
formerly occupied by the US military bases into economic or industrial areas. In furtherance of such objective, Congress
deemed it necessary to extend economic incentives to attract and encourage investors, both local and foreign. Among such
enticements are: (1) a separate customs territory within the zone, (2) tax-and duty free importations, (3) restructured
income tax rates on business enterprises within the zone, (4) no foreign exchange control, (5) liberalized regulations on
banking and finance, and (6) the grant of resident status to certain investors and of working visas to certain foreign
executives and workers" (emphasis supplied).
It is clear from the foregoing that the purpose of the law is to attract and encourage investors who could spur economic
growth and resultantly could generate employment opportunities for the Filipinos. Nothing has been said about the
employees and personnel working thereat to be likewise tax-exempt on their compensation income as no objective of
national magnitude is actually realized if the law intends to exempt them from tax. Except for the privilege of granting a
working visa for said alien workers, the law is silent with regards to their taxability. To likewise exempt them from payment
of taxes would be stretching the coverage of the law a little bit too far. This court cannot indulge in expansive construction
and write into the law an exemption not therein set forth.
If the law intended to exempt individuals employed within the SSEZ from taxes, it could have expressly stated it in clear
and unequivocal language. The exemption from the common burden cannot be permitted to exist upon vague implication
nor can it be made out of inference. Settled is the rule that he who claims an exemption from his share of the common
burden in taxation must justify his claim by showing that the legislature intended to exempt him by words too plain to be
mistaken (Surigao Consolidated Mining Co., Inc. vs. Collector of Internal Revenue, et al., L-14878, December 26, 1963).
Since RA 7227 does not specifically mention the granting of tax exemptions to individuals working within the SSEZ, then no
tax refund should be accorded to herein petitioner.
The oft-repeated rule that "a refund partakes of the nature of a tax exemption and so it must be construed in strictissimi
juris against the grantee and liberally in favor of the taxing power" deserves reiteration in this case.
WHEREFORE, in view of the foregoing, the instant Petition for Review is hereby DENIED for lack of merit. TEAaDC
SO ORDERED.
(SGD.) ERNESTO D. ACOSTA
Presiding Judge
I CONCUR:
(SGD.) JUANITO C. CASTAEDA, JR.
Associate Judge
[C.T.A. CASE NO. 6139. December 17, 2003.]
MITSUBISHI CORPORATION MANILA BRANCH, petitioner, vs. COMMISSIONER OF INTERNAL REVENUE, respondent.
DECISION
This case involves a claim for refund of erroneously paid income tax and branch profit remittance tax for the fiscal year
ended March 31, 1998 amounting to P44,288,712 and P8,324,100, respectively, arising from petitioner's Overseas
Economic Cooperation Fund funded Batangas Coal-Fired Thermal Power Plant Project. cEHSTC
Petitioner is the Philippine Branch of Mitsubishi Corporation, a corporation duly organized and existing under the laws of
Japan and duly licensed to engage in business in the Philippines, with office address at the 14th Floor, L.V. Locsin, Building,
6752 Ayala Avenue, Makati City, Metro Manila (par. 1, Joint Stipulation of Facts and Issues).
Through an Exchange of Notes between the Government of Japan and the Government of the Philippines dated June 11,
1987 (Exhibit "J"), it was agreed that a loan amounting to Forty Billion Four Hundred Million Japanese Yen (Y40,400,000,000)
will be extended to the Republic of the Philippines by the then Overseas Economic Cooperation Fund (hereinafter, "OECF"),
(now the Japan Bank for International Cooperation or "JIBC" for the implementation of the Calaca II Coal-Fired Thermal
Power Plant Project (hereinafter, Calaca II Project).
In paragraph 5(2) of the said Exchange of Notes, it was stated that:
"The Government of the Republic of the Philippines, will, itself or through its instrumentalities, assume all fiscal levies or
taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as suppliers, contractors or
consultants on and /or in connection with any income that may accrue from the supply of products of Japan and services of
Japanese nationals to be provided under the Loan" (Exhibit "J").
Subsequently, the OECF and the Government of the Republic of the Philippines entered into a Loan Agreement (Loan
Agreement No. PH-P76) dated September 25, 1987 for Forty Billion Four Hundred Million Japanese Yen (Y40,400,000,000)
for the implementation of the Calaca II Project (Exhibit "O").
On June 21, 1991, the National Power Corporation (hereinafter, "NPC") and Mitsubishi Corporation, petitioner's head office
in Japan, entered into a contract for the engineering, supply, construction, installation, testing and commissioning of one
(1) x 300 MW Batangas Coal-Fired Thermal Power Project II at Calaca, Batangas (Calaca II Coal-Fired Thermal Power Project)
(hereinafter, "Contract") (Exhibit "I").
Article VI of the Contract provided that "The Foreign Currency Portion of the Contract Price for Phase I is funded by OECF
Loan No. PH-P76. Any Foreign Currency Portion of the Contract which is not covered by OECF Loan No. PH-P76 shall
constitute as Phase II of the Contract. Corporation (NPC) shall secure additional financing from OECF for Phase II within one
(1) year after the date of Contract effectivity (Exhibit "I"). IAcTaC
Thus, a second loan agreement (Loan Agreement No. PH-P141) dated December 20, 1994 for the amount of Five Billion Five
Hundred Thirteen Million Japanese Yen (Y5,513,000,000.00) was entered into between the OECF and the Government of the
Republic of the Philippines for the additional funding of the Calaca II Project (Exhibit "P").
The Calaca II Project was completed by the petitioner on December 2, 1995 but was only accepted by NPC on January 31,
1998 through a Certificate of Completion and Final Acceptance dated February 4, 1998 (Exhibit "D").
On July 15, 1998, petitioner filed its Income Tax Return for the fiscal year ended March 31, 1998 with the Bureau of Internal
Revenue (par. 3, Joint Stipulation of Facts and Issues; Exhibits "B", "B-1" and "B-2"). In the return, petitioner (being the
Manila Branch of Mitsubishi Corporation) reported an income tax due of P90,481,711.00 computed in accordance with the
provisions of Revenue Memorandum Order ("RAMO") No. 1-95, as follows:
Solicitation and Trading Activities
Worldwide Operating Income P6,421,609,029.00
Sales to the Philippines 15,342,816,283.00

Worldwide Sales 3,281,557,773,404.00 .004675467

Taxable Income from

Solicitation Activities 30,024,023.00
Attribution Rate 75%

22,518,017.00

Taxable Income April-December 1997 16,888,513.00

Tax Rate 35% 5,910,980.00

Taxable Income January-March 1998 5,629,504.00
Tax Rate 34% 1,914,031.00

Tax Due from solicitation and
trading activities P7,825,011.00

Construction and Other Activities

Taxable Income April-December 1997 236,162,001.00
Tax Rate 35%

Tax due from construction and other activities P82,656,700.00

Total Tax Due P90,481,711.00

==============
(Exhibits "B-3", "B-6" and "B-7")
In computing the P90,481,711.00 income tax due for fiscal year ended March 31, 1998, petitioner included as part of its
taxable income, all revenues earned and cost incurred for its Calaca II Project, in accordance with the completed contract
method of reporting income (Exhibit "B").
The net income from the Calaca II Project amounted to P151,997,705, computed below:
Revenue P1,416,829,241
Less: Project Cost 1,111,706,964

Gross Profit 305,122,277
Less: Operating Expenses 74,162,777

Income from Operations 230,959,500
Add: Other Income 3,482,413

Income Before Income Tax234,441,913
Provision for Income Tax 82,444,208

Net Income P151,997,705
============
(Exhibit "B-16")
Likewise, on July 15, 1998, petitioner filed its Monthly Remittance Return of Income Taxes Withheld (Exhibit "C") and
remitted the amount of P8,324,100 representing its branch profit remittance tax (BPRT) for branch profits remitted to the
Head Office (in Japan) out of its income for the fiscal year ended March 31, 1998. The tax rate used was 10% in accordance
with the Philippines-Japan Tax Treaty. HCSDca
On September 7, 1998, the respondent issued Bureau of Internal Revenue Ruling No. DA-407-98 (Exhibit K) where it held
that "Mitsubishi has no liability for income tax and other taxes and fiscal levies, including VAT, . . . on the 100% of its
foreign currency portion of the Calaca II Project since the said taxes were assumed by the Philippine Government." (par. 5,
Stipulation of Facts, Joint Stipulation of Facts and Issues).
Of the P1,416,829,241.00 (Exhibit "B-16") total revenue from the Calaca II Project, P640,907,792 or 45.24% represents that
portion which was not OECF-funded considering that this amount represents the Philippine Peso component of the project,
while P775,921,449 or 54.76% represents the OECF funded portion (Exhibit N).
Since petitioner paid P82,444,208.00 income tax for its income from the entire Calaca II Project (inclusive of the OECF-
funded and non-OECF funded portions) and P8,324,100.00 BPRT for the remittance of its income (inclusive of the income on
the OECF-funded portion of the Calaca II Project), petitioner now seeks a tax refund/credit of the P44,288,712 erroneously
paid income tax and the P8,324,100.00 erroneously paid BPRT computed hereunder as follows:
Erroneously Paid Income Tax on Calaca II Project
Explanation

Income Taxes Paid P82,444,208 for income attributable to the

========== Calaca II Project
Sales P640,907,792 non-OECF funded portion
Less: Project Cost502,936,230 P1,111,706,964 (Total Project Cost)
x 45.24% (non-OECF funded portion)
Gross Profit 137,971,562
Less: Operating Expenses 33,551,240 P74,162,777(total operating expenses)
x 45.24% (non-OECF funded portion)
Income from Operation 104,420,322 pertaining to the non-OECF funded
portion
Add: Other Income 3,482,413

Income before tax 107,902,735
Add: 1,112,967

Taxable Income 109,015,702 pertaining to the non-OECF funded
portion
Income tax due 38,155,496 pertaining to the non-OECF funded
========== portion
Income taxes paid for
the entire project 82,444,208
Income tax due 38,155,496

Erroneously paid
Income taxes P44,288,712 pertaining to the OECF funded
========== portion and, therefor, should not
have been paid by Mitsubishi
(Exhibit "A")
Erroneously Paid Branch Profit Remittance Tax Pertaining to Branch Profits from OECF Funded Portion of Calaca II Project
Net Income from Calaca II Project 151,997,705
Divided by: Total Revenue 1,416,829,241

Ratio of Net Income to Total Revenue 10.728%
==========
OECF Funded portion of Calaca II Project 775,921,449
x Ratio of Net Income to Total Revenue 10.728%

Net income from OECF-funded Portion 83,240,998
Multiply by BPRT Rate 10%

Erroneously paid BPRT P8,324,100*
===========
*pertaining to the income from the OECF funded portion and, therefore, should not have been paid by Mitsubishi
(Exhibit "A")
On June 30, 2000, petitioner filed an administrative claim for refund and/or tax credit with respondent in the amount of
P52,612,812.00, representing its erroneously paid income taxes in the amount of P44,288,712 and erroneously paid branch
profit remittance tax in the amount of P8,324,100.00 corresponding to the OECF-funded portion of its Calaca II Project as
computed above (par. 6, Stipulation of Facts, Joints Stipulation of Facts and Issues; Exhibits "A" and "A-1").
On July 13, 2000, petitioner, in order to suspend the running of the two-year period within which to file a judicial claim for
refund, filed the instant petition for review pursuant to Section 229 of the Tax Code.
Respondent, on September 12, 2000, filed his answer raising the following Special and Affirmative Defenses, to wit:
"7. Petitioner's alleged claim for refund is subject to administrative routinary investigation/examination by
respondent's bureau.
8. Since BIR Ruling No. DA-407-98 is based merely on petitioner's self-serving representations and not on actual
investigation by respondent, petitioner must prove with evidence its applicability to the instant case.
9. Taxes are presumed to have been collected in accordance with law.
10. In action for refund/credit, the burden of proof is on the taxpayer to establish its right to refund and its failure to
sustain the burden is fatal to the claim for refund/credit.
11. Petitioner must show that it has complied with the provisions of Sections 204(c) and 229 of the Tax Code."
On April 6, 2001, petitioner, by leave of court, moved for the adoption of the procedure under CTA Circular No. 1-95, as
amended by CTA Circular No. 10-97 which was granted by this court on April 23, 2001. Mr. Ruben R. Rubio, a partner of
Sycip Gorres Velayo & Co. was commissioned to examine and verify the voluminous documents supporting petitioner's
claim. Thereafter, on August 28, 2001, Mr. Ruben R. Rubio submitted his report (Exhibit "S") relative to his verification of
petitioner's claim for refund. The report reveals an erroneously paid income tax and erroneously paid branch profit
remittance tax amounting to P44,288,712 and P8,324,100, respectively. This court noted that there is no discrepancy
between the amount cited in the report and the amount being claimed by petitioner. cEAIHa
In support of its claim for refund petitioner, presented documentary and testimonial evidence. On the contrary, respondent
did not present any testimonial or documentary evidence to dispute the claim of petitioner.
On May 23, 2003, petitioner filed its memorandum. On the other hand, respondent, despite the extension given by this
court for him to file his memorandum, failed to file the same. And so, this court, in its resolution dated July 15, 2003,
submitted this case for decision.
The issues to be resolved by this court as stipulated by the parties are as follows:
1. Whether petitioner has erroneously paid income and branch profit remittance taxes for the fiscal year ended
March 31, 1998, which is a proper claim for refund pursuant to Sections 204 and 229 of the Tax Code; and
2. Whether the erroneously paid income and branch profit remittance taxes for the fiscal year ended March 31, 1998
are substantiated by documentary evidence.
We are now going to discuss the first issue.
Records reveal that petitioner anchored its claim for refund on BIR Ruling No. DA-407-98, dated September 7, 1998 (Exhibit
K) interpreting Item 5, paragraph 2 of the Exchange of Notes, which we herein quote for easy reference, to wit:
DA-407-98
9-7-98
Sycip Gorres Velayo & Co.
6760 Ayala Avenue
Makati City
Attn.: Atty. C. P. Noel
Tax Division
Gentlemen:
This refers to your letter dated May 15, 1998 requesting on behalf of your client, Mitsubishi Corporation-Manila Branch, for
a ruling regarding the tax consequences of its OECF-funded NAIA II and Calaca II Projects.
It is represented that your client, Mitsubishi Corporation (Mitsubishi), is a private corporation duly organized and existing
under and by virtue of the laws of Japan; that Mitsubishi was duly authorized by the Securities and Exchange Commission
to operate a branch in the Philippines; that Mitsubishi is a member of the MTOB Consortium, the consortium which was
granted the NAIA II Project is 75% foreign-funded by the government of Japan through the OECF and 25% as counterpart
fund of the Philippine Government; the funding of this project was made pursuant to an Exchange of Notes (Notes-NAIA)
between the Government of Japan and the Philippines; that under Notes NAIA, a loan in Japanese Yen up to the amount of
Y47,036,000,000.00 was extended to the Philippine Government to fund, among other projects stated therein, the Ninoy
Aquino International Airport Terminal 2 or the NAIA II project; that the NAIA II Project was allocated Y18,120,000,000.00;
that item 7, paragraph 2 of Notes-NAIA states:
"7. ...
(2) The Government of the Republic of the Philippines will, itself or through its executing agencies or instrumentalities,
assume all fiscal levies or taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as
suppliers, contractors or consultants on and/or in connection with any income that may accrue from the supply of products
of Japan and/or services of Japanese nationals to be provided under the Loan.
It is likewise represented that on June 21, 1991, Mitsubishi entered into a contract with the National Power Corporation
(NPC) for the supply of equipment and services, engineering, construction, testing and commissioning of equipment in
connection with the Calaca II Project; that funding of the project is made through a grant from the Japanese Government
through the OECF and pursuant to an Exchange of Notes dated June 11, 1987 (Notes-Calaca); that under the Notes-Calaca,
a loan up to Y40,400,000,000.00 was extended expressly to implement the Calaca II Project; that Item 5, paragraph 2
Notes-Calaca provides;
"5. ...
(2) The Government of the Republic of the Philippines will, itself or through its executing agencies or instrumentalities,
assume all fiscal levies or taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as
suppliers, contractors or consultants on and/or in connection with any income that may accrue from the supply of products
of Japan and services of Japanese nationals to be provided under the Loan." (Emphasis supplied.)
It is further represented that the above contributions of the Japanese Government through the OECF represents 75% of the
NAIA II Projects and 100% of the foreign currency portion of the Calaca II project both of which will benefit not Japan but the
Philippines; and that under Notes-NAIA and Notes-Calaca, any income, value added tax or the other fiscal levies that may
arise therefrom should not be made the obligation of Japanese firms engaged in the Projects.
In reply, please be informed that the aforequoted provisions of Notes-NAIA and Notes-Calaca are not grants of direct tax
exemption privilege to the Japanese firms, Mitsubishi in this case, and Japanese nationals operating as suppliers,
contractors or consultants involved in either of the two projects because the said provisions state that it is the Government
of the Republic of the Philippines that is obligated to pay whatever fiscal levies or taxes they may be liable to. Thus there is
no tax exemption to speak of because the said taxes shall be assumed by the Philippine Government; hence the said
provision is not violative of the Constitutional prohibition against grants of tax exemption without the concurrence of the
majority of the members of Congress (BIR Ruling No. 071-97 citing Sec. 28(4), Art. VI, 1987 Philippine Constitution).
In view thereof, and considering that the estimated contribution of the Government of Japan is Y18,120,000,000.00 in the
NAIA II Project and Y40,400,000,000.00 in the Calaca II Project and that the beneficiary is the Philippine Government, this
office is of the opinion and hereby holds that Mitsubishi has no liability for income tax and other taxes and fiscal levies,
including VAT, on the 75% of the NAIA II Project and on the 100% of the foreign currency portion of the Calaca II Project
since the said taxes were assumed by the Philippine Government.
This ruling is being issued based on the foregoing representation. If upon investigation, it will be discovered that the facts
are different, then this ruling shall be considered null and void.
Very truly yours,
SIXTO S ESQUIVAS IV
Deputy Commissioner
(Legal and Enforcement Group)
Based on the above-stated BIR Ruling DA 407-98 and the Exchange of Notes, petitioner now claims that its payment of the
subject taxes was erroneous pursuant to Section 229 of the Tax Code, to wit:
Section 229. Recovery of Tax Erroneously or Illegally Collected. No suit or proceeding shall be maintained in any
court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed
or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been
excessively or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the
Commissioner; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid
under protest or duress.
In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of the
tax or penalty regardless on any supervening cause that may arise after payment: Provided, however, That the
Commissioner may, even without a written claim therefor, refund or credit any tax, where on the face of the return upon
which payment was made, such payment appears clearly to have been erroneously paid. (Emphasis supplied.)
We agree with petitioner. IaSCTE
Notably, there was an erroneous payment of the subject taxes by petitioner for the reason that said taxes are to be
assumed by the Government of the Philippines through its executing agency, the NPC, in connection with Item 5(2) of the
Exchange of notes. As defined in Black's Law Dictionary, 6th Edition, the word "assume" means "to take on, become bound,
or put oneself in place of another as to an obligation or liability". As can be gleaned from the definition, the Government of
the Philippines, through NPC, binds itself to shoulder the tax obligations and liabilities of petitioner. This finds support under
the provision of Article VII (B) (1) of the Contract (Exhibit "I") executed between petitioner and NPC, to wit:
Article VII (B) (1)
"B. FOR ONSHORE PORTION
1.) CORPORATION (NPC) shall, subject to the provisions under the Contract Documents on Taxes, pay any and all
forms of taxes which are directly imposable under the Contract including VAT, that may be imposed by the Philippine
Government, or any of its agencies and political subdivisions." (Exhibit "I-1")
In addition, the testimony of petitioner's witness on the matter on which between the parties shall shoulder the subject
taxes further strengthened petitioner's claim, thus:
xxx xxx xxx
Atty. Manalo:
Now, based on the amendment to the contract between National Power Corporation and Mitsubishi Corporation,
who will pay the taxes for the onshore portion of the Contract?
Witness:
Under Article VII (B) of the original contract, the National Power Corporation shall pay the taxes for the onshore
portion of the contract.
Atty. Manalo:
I would like to request again for the submarking of Article VIII (B) of the original contract as Exhibit "I-1".
xxx xxx xxx
Therefore, the income tax and BPRT payments made by petitioner to respondent when such payments should have been
made by the NPC, undoubtedly, put petitioner's case in the operation of Section 229 of the Tax Code as one involving
erroneous payment.
A careful reading of the provisions of the Exchange of Notes will show that it is the intention of the two governments not to
use the proceeds of the loan in the payment of all fiscal levies or taxes imposed by the Philippines. In view thereof, we
believe that to deny petitioner's claim for refund would violate the covenant that the funded amount should not be subject
to any taxes. This statement finds support under item 8(a) of the Exchange of Notes, to wit:
"8. The Government of the Republic of the Philippines will take necessary measures to ensure that:
(a) The Loan be used properly and exclusively for the Project.
This is not the first time that this court has upheld the validity of the Exchange of Notes as a basis for the refund of
erroneously collected taxes. In the case of P & N Corporation (Manila Branch Office) vs. Commissioner of Internal Revenue,
CTA Case Nos. 4163 and 4293 (July 24, 1991), which involved a claim for refund of erroneously collected contractors' and
withholding taxes, this court in granting the petition on the ground that the subject provision of the Exchange of Notes
partakes the nature of a tax exemption, stated that: DaTHAc
"It must be remembered that "tax exemption is founded on public policy . . . are granted on the ground that they will
benefit the public generally, or as a reward or compensation for services rendered in the performance of some function
deemed socially desirable . . . are favored on the theory that the concession is due to quid pro quo for the performance of
services essentially public by which the State is relieved pro tanto from performing (84 C.J.S. No. 215, pp. 413414). Thus it
is important to note that the exchange of notes in this case was entered into in pursuance of a loan agreement with Japan.
Under the Constitution, in force at that time, the President may contract and guarantee foreign and domestic loans on
behalf of the Republic of the Philippines subject to such limitations as may be provided by law (Art. II, Section 12, 1973
Constitution, as amended). Therefore, having validly entered into a loan agreement through the exchange of notes, the
terms therein necessarily govern the execution of the loan agreement. The contract, involved in this case which was
entered into pursuant to the loan merely embodies the exemption provision in said exchange of notes."
Moreover, in Mitsubishi Corporation, Tokyu Construction Co., Ltd., A. M. Oreta and Co., Inc. and BF Corporation, Operating as
MTOB Consortium, CTA Case No. 5757, January 15, 2002, and in Mitsubishi Corporation, Tokyu Construction Co., Ltd., A. M.
Oreta and Co., Inc. and BF Corporation, Operating as MTOB Consortium, CTA Case No. 6037, November 11, 2002, this court,
again pursuant to the Exchange of Notes, granted the claim of petitioners for the refund of unutilized creditable withholding
value-added tax (VAT) in recognition of the validity of the Exchange of Notes. This court has noted that in these decisions,
the subject claim for refund was based on the Notes-NAIA mentioned in BIR Ruling DA 407-98 in which herein petitioner was
one of the claimants. Thus, in consideration of the above-stated pronouncements of this court affirming the validity of the
Exchange of Notes as a valid ground for refund of erroneously paid taxes, this court finds no valid reason to disturb the
wisdom of said rulings.
Likewise, this court is aware of Revenue Memorandum Circular (RMC) No. 42-99, dated June 2, 1999, amending Revenue
Memorandum Circular No. 32-99, which has for its subject the standard clauses (referring to Item 5 paragraphs 1 and 2 of
said Exchange of Notes) pertaining to the tax treatment of participating Japanese contractors and nationals under the
exchange of notes between the Japanese Government and the Republic of the Philippines, providing for the proper
procedure for petitioner in case where it already paid the taxes subject of this case to the BIR. Pertinent portions of which
read as follows:
The foregoing provisions of the Exchange of Notes mean that the Japanese contractors or nationals engaged in OECF-
funded projects in the Philippines shall not be required to shoulder all fiscal levies or taxes associated with the project.
Instead, the taxes shall be shouldered and borne by the executing government agencies. Hence, for the comprehensive
treatment of the tax implications arising therefrom, the following rulings are hereby promulgated:
A) ...
B) INCOME TAX
1. Japanese firms or nationals operating as suppliers, contractors or consultants on and/or in connection with any
income that may accrue from the supply of products and/or services to be provided under the Project Loan, shall file the
prescribed income tax returns. Since the executing government agencies are mandated to assume the payment thereof
under the Exchange of Notes, the said Japanese firms or nationals need not pay the taxes due thereunder.
2. The concerned Revenue District Officer shall, in turn, collect the said income taxes from the concerned executing
government agencies.
3. In cases where income taxes were previously paid directly by the Japanese contractors or nationals, the
corresponding cash refund shall be recovered from the government executing agencies upon the presentation of proof of
payment thereof by the Japanese contractors or nationals. (Emphasis supplied).
C) ...
Indubitably, under the RMC as regards income taxes, petitioner is only required to file its ITR but need not pay the taxes
due thereunder. The Commissioner of the BIR has mandated the District Officer to collect the income taxes from the
government executing agency. But in cases where income taxes were previously paid directly by petitioner to the BIR, as
what petitioner did in this case, the cash refund shall be recovered from the NPC. However, the RMD dated June 2, 1999
only took effect after its publication in the National Administrative Register, July-September 1999 issue while the ITR of
petitioner was filed on July 15, 1998 or almost a year before the issuance of the RMC. Therefore, we hold that said refund
must be claimed directly by petitioner from the respondent for it would be unfair on the part of the petitioner that said RMC
be given retroactive effect.
Anent the second issue, this court finds that petitioner has properly presented sufficient evidence to substantiate its claim
for erroneously paid income and branch profit remittance taxes for the fiscal year ended March 31, 1998.
WHEREFORE, in the light of the foregoing, petitioner's claim for refund is GRANTED. Respondent Commissioner of Internal
Revenue is hereby ORDERED to REFUND to petitioner the amount of P44,288,712.00 and P8,324,100.00 representing
erroneously paid income tax and branch profit remittance tax, respectively. CEcaTH
No pronouncement as to cost.
SO ORDERED.
(SGD.) ERNESTO D. ACOSTA
Presiding Judge
I CONCUR:
(SGD.) LOVELL R. BAUTISTA
Associate Judge
Separate Opinions
DISSENTING OPINION
With due respect to my colleagues, I beg to disagree with the majority's conclusion that petitioner is exempt from income
tax and branch profit remittance tax pursuant to the Exchange of Notes between the Government of Japan and the
Government of the Philippines (Exhibit "J") and BIR Ruling DA-407-98 dated September 7, 1998 (Exhibit "K") based on the
following legal grounds: TSIDEa
1. There are constitutional grounds to prohibit the grant of tax exemption under such Exchange of Notes.
2. Section 32(B)(5) of the 1997 Tax Code provides that only treaties can grant income tax exemption.
3. The Exchange of Notes only provides for the assumption of tax liabilities by the Philippine Government. It does not
provide for tax exemption.
4. BIR Ruling DA-407-98 dated September 7, 1998 does not entitle petitioner to a refund of income taxes paid by it.
Section 28(4), Article VI (Legislative Department) of the 1987 Constitution of the Philippines expressly provides: "No law
granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress." The
requirement of an absolutely majority of all the Members of Congress in the grant of tax exemption clearly manifests the
intent of the framers of our Constitution that tax exemptions are not to be frivolously granted.
On the other hand, Section 21, Article VII (Executive Department) of the Constitution states: "No treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate."
Related thereto is Section 32(B)(5) of the 1997 Tax Code, which provides:
Sec. 32. Gross Income.
xxx xxx xxx
(B) Exclusions from Gross Income. The following items shall not be included in gross income and shall be exempt
from fixation under this Title:
xxx xxx xxx
(5) Income Exempt under Treaty. Income of any kind, to the extent required by any treaty obligation binding upon
the Government of the Philippines.
In this regard, there is no showing that the Exchange of Notes involved here was approved by at least two-thirds of the
entire Senate membership. Consequently, such Exchange of Notes cannot validly grant tax exemption and in fact, it did
not.
As stated in the Majority Decision, records reveal that petitioner anchored its claim for refund on BIR Ruling No. DA-407-98
dated September 7, 1998 (Exhibit "K"), issued by Deputy Commissioner Sixto S. Esquivias IV, interpreting Item 5,
paragraph 2 of the aforementioned Exchange of Notes, which we herein quote for in pertinent part: HScAEC
. . . that item 7, paragraph 2 of Notes-NAIA states:
"7. ...
(2) The Government of the Republic of the Philippines will, itself or through its executing agencies or instrumentalities,
assume all fiscal levies or taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as
suppliers, contractors or consultants on and/or in connection with any income that may accrue from the supply of products
of Japan and/or services of Japanese nationals to be provided under the Loan.
It is likewise represented that on June 21, 1991, Mitsubishi entered into a contract with the National Power Corporation
(NPC) for the supply of equipment and services, engineering, construction, testing and commissioning of equipment in
connection with the Calaca II Project; that funding of the project is made through a grant from the Japanese Government
through the OECF and pursuant to an Exchange of Notes dated June 11, 1987 (Notes-Calaca); that under the Notes-Calaca,
a loan up to Y40,400,000,000.00 was extended expressly to implement the Calaca II Project; that Item 5, paragraph 2
Notes-Calaca provides;
"5. ...
(2) The Government of the Republic of the Philippines will, itself or through its executing agencies or instrumentalities,
assume all fiscal levies or taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as
suppliers, contractors or consultants on and/or in connection with any income that may accrue from the supply of products
of Japan and services of Japanese nationals to be provided under the Loan." (Emphasis supplied.)
In reply, please be informed that the aforequoted provisions of Notes-NAIA and Notes-Calaca are not grants of direct tax
exemption privilege to the Japanese firms, . . . because the said provisions state that it is the Government of the Republic of
the Philippines that is obligated to pay whatever fiscal levies or taxes they may be liable to. Thus there is no tax exemption
to speak of because the said taxes shall be assumed by the Philippine Government; hence the said provision is not violative
of the Constitutional prohibition against grants of tax exemption without the concurrence of the majority of the members of
Congress (BIR Ruling No. 071-97 citing Sec. 28(4), Art. VI, 1987 Philippine Constitution). aHECST
In view thereof, and considering that the estimated contribution of the Government of Japan is Y18,120,000,000.00 in the
NAIA II Project and Y40,400,000,000.00 in the Calaca II Project and that the beneficiary is the Philippine Government, this
office is of the opinion and hereby holds that Mitsubishi has no liability for income tax and other taxes and fiscal levies,
including VAT, on the 75% of the NAIA II Project and on the 100% of the foreign currency portion of the Calaca II Project
since the said taxes were assumed by the Philippine Government.
The aforequoted ruling clearly states that the Exchange of Notes grants no tax exemption and merely provides that the
Philippine Government assumes all tax liabilities. Hence, there is no violation of "the Constitutional prohibition against
grants of tax exemption without the concurrence of the majority of the members of Congress (BIR Ruling No. 071-97 citing
Sec. 28(4) Art. VI, 1987 Philippine Constitution)."
It must be noted that the Exchange of Notes is merely an agreement between the two governments (Philippines and Japan)
involved. The Exchange of Notes is not a source of tax exemption as correctly pointed out by respondent in its ruling by
stating that "there is no tax exemption to speak of because the said taxes shall be assumed by the Philippine Government."
Undoubtedly, a tax assumption is not equivalent to tax exemption. The former arises from contract while the latter is
granted by law through the legislative branch of the government. As a rule, "the claim of tax exemption must expressly be
granted in a statute stated in a language too clear to be mistaken'' (Commissioner of Internal Revenue vs. Court of Appeals,
298 SCRA 83).
The Exchange of Notes is just a preparatory agreement or a mere understanding between the two governments in which
the government of Japan will grant a loan in favor of the Philippine government to be used in the latter's economic
development program. This is evident from the opening statements of the Exchange of Notes wherein it provided that:
"Excellency,
I have the honour to confirm the following understanding recently reached between the representatives of the Government
of Japan and of the Government of the Republic of the Philippines concerning a Japanese loan to be extended with a view to
promoting economic development efforts of the Republic of the Philippines: . . . " (p. 1, Exhibit "J")
Clearly, the Exchange of Notes is not a "self-executing" agreement. This was the reason why the two loan agreements, Loan
Agreement No. PH-P76 (Exhibit "O") dated September 25, 1987 and Loan Agreement No. PH-P141 (Exhibit "P") dated
December 20, 1994, were executed providing the Philippine government enough funds to implement the Calaca II Project.
Accordingly, in order to realize this project, the NPC, the executing agency of the Philippine government entered into a
contract with herein petitioner and in said Contract the provision of Article VIII (B) (1) (Exhibit "I") was included in order to
carry-out the undertaking assumed by the Philippine government (through the NPC), to wit: HAICTD
Article VIII (B) (1)
"B. FOR ONSHORE PORTION
1.) CORPORATION (NPC) shall, subject to the provisions under the Contract Documents on Taxes, pay any and all
forms of taxes which are directly imposable under the Contract including VAT, that may be imposed by the Philippine
Government, or any of its agencies and political subdivisions."
(Exhibit "I-1")
This provision not only realized the intent of the two governments under Item 5, paragraph 2 of the Exchange of Notes but
it also recognized the covenant of the two governments not to use the proceeds of the loan in the payment of all fiscal
levies or taxes imposed by the Philippines. This statement finds support under Item 8(a) of the Exchange of Notes, to wit:
"8. The Government of the Republic of the Philippines will take necessary measures to ensure that:
(a) The Loan be used properly and exclusively for the Project, . . ."
However, despite the provision in the Contract that NPC shall assume the tax liabilities of petitioner, the latter still made
payments of the subject taxes to respondent. And now, petitioner, believing that it has made erroneous payments of the
subject taxes, is before us invoking the provision of Section 229 in relation to Section 204 of the Tax Code. cIECTH
The petition is without merit.
Petitioner has no basis in law. The provision of Section 229 is not applicable to petitioner, to wit:
Section 229. Recovery of Tax Erroneously or Illegally Collected. No suit or proceeding, shall be maintained in any
court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed
or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been
excessively or in any manner wrongfully collected, until a claim for refund or credit has been duty filed with the
Commissioner; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid
under protest or duress.
In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of the
tax or penalty regardless on any supervening cause that may arise after payment: Provided, however, That the
Commissioner may, even without a written claim therefor, refund or credit any tax, where on the face of the return upon
which payment was made, such payment appears clearly to have been erroneously paid. (Emphasis supplied)
The above-cited section speaks of taxes erroneously or illegally assessed or collected, or of any penalty claimed to have
been collected without authority, or of any sum alleged to have been excessively or in any manner wrongfully collected.
Undeniably, it is not proper for us to allow a claim for refund in favor of petitioner who, by law, is legally mandated to pay
the taxes due from it. The allegation of petitioner that the subject taxes it paid comes within the purview of an erroneous
payment merely because said taxes, by virtue of a contract, are to be assumed by NPC is unavailing.
It is a basic principle in civil law that with certain exceptions not obtaining in this case, a contract can only bind the parties
who had entered into it or their successors who assumed their personalities or their juridical positions, and that, as a
consequence, such contract can neither favor nor prejudice a third person (Ouano vs. Court of Appeals, G.R. No. 95900, July
23, 1992). Article 1311 of the Civil Code of the Philippines provides that "Contracts take effect only between the parties,
their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by
their nature, or by stipulation or by provision of law." This is the principle of relativity of contracts. CDHcaS
In the case at bar, it is undisputed that the contract was entered into only by and between the parties (NPC and herein
petitioner) and the herein respondent was neither a party thereto nor was he aware of the provision thereof. Thus,
respondent should not be made to observe the term of the contract between the parties, otherwise, the principle of
relativity of contracts, long enshrined in our substantive laws, will be violated.
The "assumption of taxes" clause in the Contract between the petitioner and NPC is not enough to put petitioner's case
within the operation of Section 229 of the Tax Code. The payments of petitioner to respondent of the income taxes and the
BPRT were made legally by it and the Contract is not enough ground to grant petitioner's claim for refund. A contract is, as
always, subordinate to the law.
However, petitioner remedy, if any, is to seek a cash refund from NPC for the equivalent amount of the income taxes and
branch profit remittance taxes it paid to the BIR. This remedy is recognized by the respondent himself when he issued
Revenue Memorandum Circular (RMC) No. 32-99, as amended by Revenue Memorandum Circular 42-99 dated June 2, 1999,
which provides that "In cases where income taxes were previously paid directly by the Japanese contractors or nationals,
the corresponding cash refund shall be recovered from the government executing agencies upon the presentation of proof
of payment thereof by the Japanese contractors or nationals".
International comity may not be invoked to evade our tax laws. Thus, the Supreme Court held:
"It is too settled a rule in this jurisdiction, as to dispense with the need for citations, that laws granting exemption from tax
are construed strictissimi juris against the taxpayer and liberally in favor of the taxing power. Taxation is the rule and
exemption is the exception. The burden of proof rests upon the party claiming exemption to prove that it is in fact covered
by the exemption so claimed, which onus petitioners have failed to discharge. Significantly, private respondents are not
even among the entities which, under Section 29(b)(7)(A) of the tax code, are entitled to exemption and which should
indispensably be the party in interest in this case. AaDSTH
Definitely, the taxability of a party cannot be blandly glossed over on the basis of a supposed "broad, pragmatic analysis"
alone without substantial supportive evidence, lest governmental operations suffer due to diminution of much needed
funds. Nor can we close this discussion without taking cognizance of petitioner's warning, of pervasive relevance at this
time, that while international comity is invoked in this case on the nebulous representation that the funds involved in the
loans are those of a foreign government, scrupulous care must be taken to avoid opening the floodgates to the violation of
our tax laws. Otherwise, the mere expedient of having a Philippine corporation enter into a contract for loans or other
domestic securities with private foreign entities, which in turn will negotiate independently with their governments, could
be availed of to take advantage of the tax exemption law under discussion." Commissioner of Internal Revenue vs.
Mitsubishi Metal Corporation, G.R. No. 54908, January 22, 1990, 181 SCRA 82.
Tax exemptions must be strictly construed such that the exemption will not be held to be conferred unless the terms under
which it is granted clearly and distinctly show that such was the intention of the parties (Philippine Acetylene Co., Inc. v.
Commissioner of Internal Revenue, G.R. No. L-19707, Aug. 17, 1967; Manila Electric Company vs. Vera, etc., G.R. No. L-
29987, Oct. 22,1975; Surigao Consolidated Mining Co., Inc. v. Collector of Internal Revenue, et al., G.R. No. L-14878,
December 26, 1963, all cited in Aban, Law of Basic Taxation of the Philippines, p. 119). Tax exemptions are not presumed
(Lealda Electric Co., Inc. v. Collector of Internal Revenue, G.R. No. L-16428, April 30, 1963). Tax refunds are in the nature of
tax exemptions. As such, they are regarded as in derogation of sovereign authority and to be construed strictissimi juris
against the person claiming the exemption (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87
[1999]).
In the light of the foregoing, we cannot conclude that the Exchange of Notes grants tax exemption to petitioner. Hence,
petitioner's claim for refund should be denied for lack of merit. ScTCIE
(SGD.) JUANITO C. CASTAEDA, JR.
Associate Judge[C.T.A. CASE NO. 6139. December 17, 2003.]
MITSUBISHI CORPORATION MANILA BRANCH, petitioner, vs. COMMISSIONER OF INTERNAL REVENUE, respondent.
DECISION
This case involves a claim for refund of erroneously paid income tax and branch profit remittance tax for the fiscal year
ended March 31, 1998 amounting to P44,288,712 and P8,324,100, respectively, arising from petitioner's Overseas
Economic Cooperation Fund funded Batangas Coal-Fired Thermal Power Plant Project. cEHSTC
Petitioner is the Philippine Branch of Mitsubishi Corporation, a corporation duly organized and existing under the laws of
Japan and duly licensed to engage in business in the Philippines, with office address at the 14th Floor, L.V. Locsin, Building,
6752 Ayala Avenue, Makati City, Metro Manila (par. 1, Joint Stipulation of Facts and Issues).
Through an Exchange of Notes between the Government of Japan and the Government of the Philippines dated June 11,
1987 (Exhibit "J"), it was agreed that a loan amounting to Forty Billion Four Hundred Million Japanese Yen (Y40,400,000,000)
will be extended to the Republic of the Philippines by the then Overseas Economic Cooperation Fund (hereinafter, "OECF"),
(now the Japan Bank for International Cooperation or "JIBC" for the implementation of the Calaca II Coal-Fired Thermal
Power Plant Project (hereinafter, Calaca II Project).
In paragraph 5(2) of the said Exchange of Notes, it was stated that:
"The Government of the Republic of the Philippines, will, itself or through its instrumentalities, assume all fiscal levies or
taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as suppliers, contractors or
consultants on and /or in connection with any income that may accrue from the supply of products of Japan and services of
Japanese nationals to be provided under the Loan" (Exhibit "J").
Subsequently, the OECF and the Government of the Republic of the Philippines entered into a Loan Agreement (Loan
Agreement No. PH-P76) dated September 25, 1987 for Forty Billion Four Hundred Million Japanese Yen (Y40,400,000,000)
for the implementation of the Calaca II Project (Exhibit "O").
On June 21, 1991, the National Power Corporation (hereinafter, "NPC") and Mitsubishi Corporation, petitioner's head office
in Japan, entered into a contract for the engineering, supply, construction, installation, testing and commissioning of one
(1) x 300 MW Batangas Coal-Fired Thermal Power Project II at Calaca, Batangas (Calaca II Coal-Fired Thermal Power Project)
(hereinafter, "Contract") (Exhibit "I").
Article VI of the Contract provided that "The Foreign Currency Portion of the Contract Price for Phase I is funded by OECF
Loan No. PH-P76. Any Foreign Currency Portion of the Contract which is not covered by OECF Loan No. PH-P76 shall
constitute as Phase II of the Contract. Corporation (NPC) shall secure additional financing from OECF for Phase II within one
(1) year after the date of Contract effectivity (Exhibit "I"). IAcTaC
Thus, a second loan agreement (Loan Agreement No. PH-P141) dated December 20, 1994 for the amount of Five Billion Five
Hundred Thirteen Million Japanese Yen (Y5,513,000,000.00) was entered into between the OECF and the Government of the
Republic of the Philippines for the additional funding of the Calaca II Project (Exhibit "P").
The Calaca II Project was completed by the petitioner on December 2, 1995 but was only accepted by NPC on January 31,
1998 through a Certificate of Completion and Final Acceptance dated February 4, 1998 (Exhibit "D").
On July 15, 1998, petitioner filed its Income Tax Return for the fiscal year ended March 31, 1998 with the Bureau of Internal
Revenue (par. 3, Joint Stipulation of Facts and Issues; Exhibits "B", "B-1" and "B-2"). In the return, petitioner (being the
Manila Branch of Mitsubishi Corporation) reported an income tax due of P90,481,711.00 computed in accordance with the
provisions of Revenue Memorandum Order ("RAMO") No. 1-95, as follows:
Solicitation and Trading Activities
Worldwide Operating Income P6,421,609,029.00
Sales to the Philippines 15,342,816,283.00

Worldwide Sales 3,281,557,773,404.00 .004675467

Taxable Income from

Solicitation Activities 30,024,023.00
Attribution Rate 75%

22,518,017.00

Taxable Income April-December 1997 16,888,513.00

Tax Rate 35% 5,910,980.00

Taxable Income January-March 1998 5,629,504.00
Tax Rate 34% 1,914,031.00

Tax Due from solicitation and
trading activities P7,825,011.00
Construction and Other Activities
Taxable Income April-December 1997 236,162,001.00
Tax Rate 35%

Tax due from construction and other activities P82,656,700.00

Total Tax Due P90,481,711.00

==============
(Exhibits "B-3", "B-6" and "B-7")
In computing the P90,481,711.00 income tax due for fiscal year ended March 31, 1998, petitioner included as part of its
taxable income, all revenues earned and cost incurred for its Calaca II Project, in accordance with the completed contract
method of reporting income (Exhibit "B").
The net income from the Calaca II Project amounted to P151,997,705, computed below:
Revenue P1,416,829,241
Less: Project Cost 1,111,706,964

Gross Profit 305,122,277
Less: Operating Expenses 74,162,777

Income from Operations 230,959,500
Add: Other Income 3,482,413

Income Before Income Tax234,441,913
Provision for Income Tax 82,444,208

Net Income P151,997,705
============
(Exhibit "B-16")
Likewise, on July 15, 1998, petitioner filed its Monthly Remittance Return of Income Taxes Withheld (Exhibit "C") and
remitted the amount of P8,324,100 representing its branch profit remittance tax (BPRT) for branch profits remitted to the
Head Office (in Japan) out of its income for the fiscal year ended March 31, 1998. The tax rate used was 10% in accordance
with the Philippines-Japan Tax Treaty. HCSDca
On September 7, 1998, the respondent issued Bureau of Internal Revenue Ruling No. DA-407-98 (Exhibit K) where it held
that "Mitsubishi has no liability for income tax and other taxes and fiscal levies, including VAT, . . . on the 100% of its
foreign currency portion of the Calaca II Project since the said taxes were assumed by the Philippine Government." (par. 5,
Stipulation of Facts, Joint Stipulation of Facts and Issues).
Of the P1,416,829,241.00 (Exhibit "B-16") total revenue from the Calaca II Project, P640,907,792 or 45.24% represents that
portion which was not OECF-funded considering that this amount represents the Philippine Peso component of the project,
while P775,921,449 or 54.76% represents the OECF funded portion (Exhibit N).
Since petitioner paid P82,444,208.00 income tax for its income from the entire Calaca II Project (inclusive of the OECF-
funded and non-OECF funded portions) and P8,324,100.00 BPRT for the remittance of its income (inclusive of the income on
the OECF-funded portion of the Calaca II Project), petitioner now seeks a tax refund/credit of the P44,288,712 erroneously
paid income tax and the P8,324,100.00 erroneously paid BPRT computed hereunder as follows:
Erroneously Paid Income Tax on Calaca II Project
Explanation

Income Taxes Paid P82,444,208 for income attributable to the

========== Calaca II Project
Sales P640,907,792 non-OECF funded portion
Less: Project Cost502,936,230 P1,111,706,964 (Total Project Cost)
x 45.24% (non-OECF funded portion)
Gross Profit 137,971,562
Less: Operating Expenses 33,551,240 P74,162,777(total operating expenses)
x 45.24% (non-OECF funded portion)
Income from Operation 104,420,322 pertaining to the non-OECF funded
portion
Add: Other Income 3,482,413

Income before tax 107,902,735
Add: 1,112,967

Taxable Income 109,015,702 pertaining to the non-OECF funded
portion
Income tax due 38,155,496 pertaining to the non-OECF funded
========== portion
Income taxes paid for
the entire project 82,444,208
Income tax due 38,155,496

Erroneously paid
Income taxes P44,288,712 pertaining to the OECF funded
 ========== portion and, therefor, should not
have been paid by Mitsubishi
(Exhibit "A")
Erroneously Paid Branch Profit Remittance Tax Pertaining to Branch Profits from OECF Funded Portion of Calaca II Project
Net Income from Calaca II Project 151,997,705
Divided by: Total Revenue 1,416,829,241

Ratio of Net Income to Total Revenue 10.728%
==========
OECF Funded portion of Calaca II Project 775,921,449
x Ratio of Net Income to Total Revenue 10.728%

Net income from OECF-funded Portion 83,240,998
Multiply by BPRT Rate 10%

Erroneously paid BPRT P8,324,100*
===========
*pertaining to the income from the OECF funded portion and, therefore, should not have been paid by Mitsubishi
(Exhibit "A")
On June 30, 2000, petitioner filed an administrative claim for refund and/or tax credit with respondent in the amount of
P52,612,812.00, representing its erroneously paid income taxes in the amount of P44,288,712 and erroneously paid branch
profit remittance tax in the amount of P8,324,100.00 corresponding to the OECF-funded portion of its Calaca II Project as
computed above (par. 6, Stipulation of Facts, Joints Stipulation of Facts and Issues; Exhibits "A" and "A-1").
On July 13, 2000, petitioner, in order to suspend the running of the two-year period within which to file a judicial claim for
refund, filed the instant petition for review pursuant to Section 229 of the Tax Code.
Respondent, on September 12, 2000, filed his answer raising the following Special and Affirmative Defenses, to wit:
"7. Petitioner's alleged claim for refund is subject to administrative routinary investigation/examination by
respondent's bureau.
8. Since BIR Ruling No. DA-407-98 is based merely on petitioner's self-serving representations and not on actual
investigation by respondent, petitioner must prove with evidence its applicability to the instant case.
9. Taxes are presumed to have been collected in accordance with law.
10. In action for refund/credit, the burden of proof is on the taxpayer to establish its right to refund and its failure to
sustain the burden is fatal to the claim for refund/credit.
11. Petitioner must show that it has complied with the provisions of Sections 204(c) and 229 of the Tax Code."
On April 6, 2001, petitioner, by leave of court, moved for the adoption of the procedure under CTA Circular No. 1-95, as
amended by CTA Circular No. 10-97 which was granted by this court on April 23, 2001. Mr. Ruben R. Rubio, a partner of
Sycip Gorres Velayo & Co. was commissioned to examine and verify the voluminous documents supporting petitioner's
claim. Thereafter, on August 28, 2001, Mr. Ruben R. Rubio submitted his report (Exhibit "S") relative to his verification of
petitioner's claim for refund. The report reveals an erroneously paid income tax and erroneously paid branch profit
remittance tax amounting to P44,288,712 and P8,324,100, respectively. This court noted that there is no discrepancy
between the amount cited in the report and the amount being claimed by petitioner. cEAIHa
In support of its claim for refund petitioner, presented documentary and testimonial evidence. On the contrary, respondent
did not present any testimonial or documentary evidence to dispute the claim of petitioner.
On May 23, 2003, petitioner filed its memorandum. On the other hand, respondent, despite the extension given by this
court for him to file his memorandum, failed to file the same. And so, this court, in its resolution dated July 15, 2003,
submitted this case for decision.
The issues to be resolved by this court as stipulated by the parties are as follows:
1. Whether petitioner has erroneously paid income and branch profit remittance taxes for the fiscal year ended
March 31, 1998, which is a proper claim for refund pursuant to Sections 204 and 229 of the Tax Code; and
2. Whether the erroneously paid income and branch profit remittance taxes for the fiscal year ended March 31, 1998
are substantiated by documentary evidence.
We are now going to discuss the first issue.
Records reveal that petitioner anchored its claim for refund on BIR Ruling No. DA-407-98, dated September 7, 1998 (Exhibit
K) interpreting Item 5, paragraph 2 of the Exchange of Notes, which we herein quote for easy reference, to wit:
DA-407-98
9-7-98
Sycip Gorres Velayo & Co.
6760 Ayala Avenue
Makati City
Attn.: Atty. C. P. Noel
Tax Division
Gentlemen:
This refers to your letter dated May 15, 1998 requesting on behalf of your client, Mitsubishi Corporation-Manila Branch, for
a ruling regarding the tax consequences of its OECF-funded NAIA II and Calaca II Projects.
It is represented that your client, Mitsubishi Corporation (Mitsubishi), is a private corporation duly organized and existing
under and by virtue of the laws of Japan; that Mitsubishi was duly authorized by the Securities and Exchange Commission
to operate a branch in the Philippines; that Mitsubishi is a member of the MTOB Consortium, the consortium which was
granted the NAIA II Project is 75% foreign-funded by the government of Japan through the OECF and 25% as counterpart
fund of the Philippine Government; the funding of this project was made pursuant to an Exchange of Notes (Notes-NAIA)
between the Government of Japan and the Philippines; that under Notes NAIA, a loan in Japanese Yen up to the amount of
Y47,036,000,000.00 was extended to the Philippine Government to fund, among other projects stated therein, the Ninoy
Aquino International Airport Terminal 2 or the NAIA II project; that the NAIA II Project was allocated Y18,120,000,000.00;
that item 7, paragraph 2 of Notes-NAIA states:
"7. ...
(2) The Government of the Republic of the Philippines will, itself or through its executing agencies or instrumentalities,
assume all fiscal levies or taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as
suppliers, contractors or consultants on and/or in connection with any income that may accrue from the supply of products
of Japan and/or services of Japanese nationals to be provided under the Loan.
It is likewise represented that on June 21, 1991, Mitsubishi entered into a contract with the National Power Corporation
(NPC) for the supply of equipment and services, engineering, construction, testing and commissioning of equipment in
connection with the Calaca II Project; that funding of the project is made through a grant from the Japanese Government
through the OECF and pursuant to an Exchange of Notes dated June 11, 1987 (Notes-Calaca); that under the Notes-Calaca,
a loan up to Y40,400,000,000.00 was extended expressly to implement the Calaca II Project; that Item 5, paragraph 2
Notes-Calaca provides;
"5. ...
(2) The Government of the Republic of the Philippines will, itself or through its executing agencies or instrumentalities,
assume all fiscal levies or taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as
suppliers, contractors or consultants on and/or in connection with any income that may accrue from the supply of products
of Japan and services of Japanese nationals to be provided under the Loan." (Emphasis supplied.)
It is further represented that the above contributions of the Japanese Government through the OECF represents 75% of the
NAIA II Projects and 100% of the foreign currency portion of the Calaca II project both of which will benefit not Japan but the
Philippines; and that under Notes-NAIA and Notes-Calaca, any income, value added tax or the other fiscal levies that may
arise therefrom should not be made the obligation of Japanese firms engaged in the Projects.
In reply, please be informed that the aforequoted provisions of Notes-NAIA and Notes-Calaca are not grants of direct tax
exemption privilege to the Japanese firms, Mitsubishi in this case, and Japanese nationals operating as suppliers,
contractors or consultants involved in either of the two projects because the said provisions state that it is the Government
of the Republic of the Philippines that is obligated to pay whatever fiscal levies or taxes they may be liable to. Thus there is
no tax exemption to speak of because the said taxes shall be assumed by the Philippine Government; hence the said
provision is not violative of the Constitutional prohibition against grants of tax exemption without the concurrence of the
majority of the members of Congress (BIR Ruling No. 071-97 citing Sec. 28(4), Art. VI, 1987 Philippine Constitution).
In view thereof, and considering that the estimated contribution of the Government of Japan is Y18,120,000,000.00 in the
NAIA II Project and Y40,400,000,000.00 in the Calaca II Project and that the beneficiary is the Philippine Government, this
office is of the opinion and hereby holds that Mitsubishi has no liability for income tax and other taxes and fiscal levies,
including VAT, on the 75% of the NAIA II Project and on the 100% of the foreign currency portion of the Calaca II Project
since the said taxes were assumed by the Philippine Government.
This ruling is being issued based on the foregoing representation. If upon investigation, it will be discovered that the facts
are different, then this ruling shall be considered null and void.
Very truly yours,
SIXTO S ESQUIVAS IV
Deputy Commissioner
(Legal and Enforcement Group)
Based on the above-stated BIR Ruling DA 407-98 and the Exchange of Notes, petitioner now claims that its payment of the
subject taxes was erroneous pursuant to Section 229 of the Tax Code, to wit:
Section 229. Recovery of Tax Erroneously or Illegally Collected. No suit or proceeding shall be maintained in any
court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed
or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been
excessively or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the
Commissioner; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid
under protest or duress.
In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of the
tax or penalty regardless on any supervening cause that may arise after payment: Provided, however, That the
Commissioner may, even without a written claim therefor, refund or credit any tax, where on the face of the return upon
which payment was made, such payment appears clearly to have been erroneously paid. (Emphasis supplied.)
We agree with petitioner. IaSCTE
Notably, there was an erroneous payment of the subject taxes by petitioner for the reason that said taxes are to be
assumed by the Government of the Philippines through its executing agency, the NPC, in connection with Item 5(2) of the
Exchange of notes. As defined in Black's Law Dictionary, 6th Edition, the word "assume" means "to take on, become bound,
or put oneself in place of another as to an obligation or liability". As can be gleaned from the definition, the Government of
the Philippines, through NPC, binds itself to shoulder the tax obligations and liabilities of petitioner. This finds support under
the provision of Article VII (B) (1) of the Contract (Exhibit "I") executed between petitioner and NPC, to wit:
Article VII (B) (1)
"B. FOR ONSHORE PORTION
1.) CORPORATION (NPC) shall, subject to the provisions under the Contract Documents on Taxes, pay any and all
forms of taxes which are directly imposable under the Contract including VAT, that may be imposed by the Philippine
Government, or any of its agencies and political subdivisions." (Exhibit "I-1")
In addition, the testimony of petitioner's witness on the matter on which between the parties shall shoulder the subject
taxes further strengthened petitioner's claim, thus:
xxx xxx xxx
Atty. Manalo:
Now, based on the amendment to the contract between National Power Corporation and Mitsubishi Corporation,
who will pay the taxes for the onshore portion of the Contract?
Witness:
Under Article VII (B) of the original contract, the National Power Corporation shall pay the taxes for the onshore
portion of the contract.
Atty. Manalo:
I would like to request again for the submarking of Article VIII (B) of the original contract as Exhibit "I-1".
xxx xxx xxx
Therefore, the income tax and BPRT payments made by petitioner to respondent when such payments should have been
made by the NPC, undoubtedly, put petitioner's case in the operation of Section 229 of the Tax Code as one involving
erroneous payment.
A careful reading of the provisions of the Exchange of Notes will show that it is the intention of the two governments not to
use the proceeds of the loan in the payment of all fiscal levies or taxes imposed by the Philippines. In view thereof, we
believe that to deny petitioner's claim for refund would violate the covenant that the funded amount should not be subject
to any taxes. This statement finds support under item 8(a) of the Exchange of Notes, to wit:
"8. The Government of the Republic of the Philippines will take necessary measures to ensure that:
(a) The Loan be used properly and exclusively for the Project.
This is not the first time that this court has upheld the validity of the Exchange of Notes as a basis for the refund of
erroneously collected taxes. In the case of P & N Corporation (Manila Branch Office) vs. Commissioner of Internal Revenue,
CTA Case Nos. 4163 and 4293 (July 24, 1991), which involved a claim for refund of erroneously collected contractors' and
withholding taxes, this court in granting the petition on the ground that the subject provision of the Exchange of Notes
partakes the nature of a tax exemption, stated that: DaTHAc
"It must be remembered that "tax exemption is founded on public policy . . . are granted on the ground that they will
benefit the public generally, or as a reward or compensation for services rendered in the performance of some function
deemed socially desirable . . . are favored on the theory that the concession is due to quid pro quo for the performance of
services essentially public by which the State is relieved pro tanto from performing (84 C.J.S. No. 215, pp. 413414). Thus it
is important to note that the exchange of notes in this case was entered into in pursuance of a loan agreement with Japan.
Under the Constitution, in force at that time, the President may contract and guarantee foreign and domestic loans on
behalf of the Republic of the Philippines subject to such limitations as may be provided by law (Art. II, Section 12, 1973
Constitution, as amended). Therefore, having validly entered into a loan agreement through the exchange of notes, the
terms therein necessarily govern the execution of the loan agreement. The contract, involved in this case which was
entered into pursuant to the loan merely embodies the exemption provision in said exchange of notes."
Moreover, in Mitsubishi Corporation, Tokyu Construction Co., Ltd., A. M. Oreta and Co., Inc. and BF Corporation, Operating as
MTOB Consortium, CTA Case No. 5757, January 15, 2002, and in Mitsubishi Corporation, Tokyu Construction Co., Ltd., A. M.
Oreta and Co., Inc. and BF Corporation, Operating as MTOB Consortium, CTA Case No. 6037, November 11, 2002, this court,
again pursuant to the Exchange of Notes, granted the claim of petitioners for the refund of unutilized creditable withholding
value-added tax (VAT) in recognition of the validity of the Exchange of Notes. This court has noted that in these decisions,
the subject claim for refund was based on the Notes-NAIA mentioned in BIR Ruling DA 407-98 in which herein petitioner was
one of the claimants. Thus, in consideration of the above-stated pronouncements of this court affirming the validity of the
Exchange of Notes as a valid ground for refund of erroneously paid taxes, this court finds no valid reason to disturb the
wisdom of said rulings.
Likewise, this court is aware of Revenue Memorandum Circular (RMC) No. 42-99, dated June 2, 1999, amending Revenue
Memorandum Circular No. 32-99, which has for its subject the standard clauses (referring to Item 5 paragraphs 1 and 2 of
said Exchange of Notes) pertaining to the tax treatment of participating Japanese contractors and nationals under the
exchange of notes between the Japanese Government and the Republic of the Philippines, providing for the proper
procedure for petitioner in case where it already paid the taxes subject of this case to the BIR. Pertinent portions of which
read as follows:
The foregoing provisions of the Exchange of Notes mean that the Japanese contractors or nationals engaged in OECF-
funded projects in the Philippines shall not be required to shoulder all fiscal levies or taxes associated with the project.
Instead, the taxes shall be shouldered and borne by the executing government agencies. Hence, for the comprehensive
treatment of the tax implications arising therefrom, the following rulings are hereby promulgated:
A) ...
B) INCOME TAX
1. Japanese firms or nationals operating as suppliers, contractors or consultants on and/or in connection with any
income that may accrue from the supply of products and/or services to be provided under the Project Loan, shall file the
prescribed income tax returns. Since the executing government agencies are mandated to assume the payment thereof
under the Exchange of Notes, the said Japanese firms or nationals need not pay the taxes due thereunder.
2. The concerned Revenue District Officer shall, in turn, collect the said income taxes from the concerned executing
government agencies.
3. In cases where income taxes were previously paid directly by the Japanese contractors or nationals, the
corresponding cash refund shall be recovered from the government executing agencies upon the presentation of proof of
payment thereof by the Japanese contractors or nationals. (Emphasis supplied).
C) ...
Indubitably, under the RMC as regards income taxes, petitioner is only required to file its ITR but need not pay the taxes
due thereunder. The Commissioner of the BIR has mandated the District Officer to collect the income taxes from the
government executing agency. But in cases where income taxes were previously paid directly by petitioner to the BIR, as
what petitioner did in this case, the cash refund shall be recovered from the NPC. However, the RMD dated June 2, 1999
only took effect after its publication in the National Administrative Register, July-September 1999 issue while the ITR of
petitioner was filed on July 15, 1998 or almost a year before the issuance of the RMC. Therefore, we hold that said refund
must be claimed directly by petitioner from the respondent for it would be unfair on the part of the petitioner that said RMC
be given retroactive effect.
Anent the second issue, this court finds that petitioner has properly presented sufficient evidence to substantiate its claim
for erroneously paid income and branch profit remittance taxes for the fiscal year ended March 31, 1998.
WHEREFORE, in the light of the foregoing, petitioner's claim for refund is GRANTED. Respondent Commissioner of Internal
Revenue is hereby ORDERED to REFUND to petitioner the amount of P44,288,712.00 and P8,324,100.00 representing
erroneously paid income tax and branch profit remittance tax, respectively. CEcaTH
No pronouncement as to cost.
SO ORDERED.
(SGD.) ERNESTO D. ACOSTA
Presiding Judge
I CONCUR:
(SGD.) LOVELL R. BAUTISTA
Associate Judge
Separate Opinions
DISSENTING OPINION
With due respect to my colleagues, I beg to disagree with the majority's conclusion that petitioner is exempt from income
tax and branch profit remittance tax pursuant to the Exchange of Notes between the Government of Japan and the
Government of the Philippines (Exhibit "J") and BIR Ruling DA-407-98 dated September 7, 1998 (Exhibit "K") based on the
following legal grounds: TSIDEa
1. There are constitutional grounds to prohibit the grant of tax exemption under such Exchange of Notes.
2. Section 32(B)(5) of the 1997 Tax Code provides that only treaties can grant income tax exemption.
3. The Exchange of Notes only provides for the assumption of tax liabilities by the Philippine Government. It does not
provide for tax exemption.
4. BIR Ruling DA-407-98 dated September 7, 1998 does not entitle petitioner to a refund of income taxes paid by it.
Section 28(4), Article VI (Legislative Department) of the 1987 Constitution of the Philippines expressly provides: "No law
granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress." The
requirement of an absolutely majority of all the Members of Congress in the grant of tax exemption clearly manifests the
intent of the framers of our Constitution that tax exemptions are not to be frivolously granted.
On the other hand, Section 21, Article VII (Executive Department) of the Constitution states: "No treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate."
Related thereto is Section 32(B)(5) of the 1997 Tax Code, which provides:
Sec. 32. Gross Income.
xxx xxx xxx
(B) Exclusions from Gross Income. The following items shall not be included in gross income and shall be exempt
from fixation under this Title:
xxx xxx xxx
(5) Income Exempt under Treaty. Income of any kind, to the extent required by any treaty obligation binding upon
the Government of the Philippines.
In this regard, there is no showing that the Exchange of Notes involved here was approved by at least two-thirds of the
entire Senate membership. Consequently, such Exchange of Notes cannot validly grant tax exemption and in fact, it did
not.
As stated in the Majority Decision, records reveal that petitioner anchored its claim for refund on BIR Ruling No. DA-407-98
dated September 7, 1998 (Exhibit "K"), issued by Deputy Commissioner Sixto S. Esquivias IV, interpreting Item 5,
paragraph 2 of the aforementioned Exchange of Notes, which we herein quote for in pertinent part: HScAEC
. . . that item 7, paragraph 2 of Notes-NAIA states:
"7. ...
(2) The Government of the Republic of the Philippines will, itself or through its executing agencies or instrumentalities,
assume all fiscal levies or taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as
suppliers, contractors or consultants on and/or in connection with any income that may accrue from the supply of products
of Japan and/or services of Japanese nationals to be provided under the Loan.
It is likewise represented that on June 21, 1991, Mitsubishi entered into a contract with the National Power Corporation
(NPC) for the supply of equipment and services, engineering, construction, testing and commissioning of equipment in
connection with the Calaca II Project; that funding of the project is made through a grant from the Japanese Government
through the OECF and pursuant to an Exchange of Notes dated June 11, 1987 (Notes-Calaca); that under the Notes-Calaca,
a loan up to Y40,400,000,000.00 was extended expressly to implement the Calaca II Project; that Item 5, paragraph 2
Notes-Calaca provides;
"5. ...
(2) The Government of the Republic of the Philippines will, itself or through its executing agencies or instrumentalities,
assume all fiscal levies or taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as
suppliers, contractors or consultants on and/or in connection with any income that may accrue from the supply of products
of Japan and services of Japanese nationals to be provided under the Loan." (Emphasis supplied.)
In reply, please be informed that the aforequoted provisions of Notes-NAIA and Notes-Calaca are not grants of direct tax
exemption privilege to the Japanese firms, . . . because the said provisions state that it is the Government of the Republic of
the Philippines that is obligated to pay whatever fiscal levies or taxes they may be liable to. Thus there is no tax exemption
to speak of because the said taxes shall be assumed by the Philippine Government; hence the said provision is not violative
of the Constitutional prohibition against grants of tax exemption without the concurrence of the majority of the members of
Congress (BIR Ruling No. 071-97 citing Sec. 28(4), Art. VI, 1987 Philippine Constitution). aHECST
In view thereof, and considering that the estimated contribution of the Government of Japan is Y18,120,000,000.00 in the
NAIA II Project and Y40,400,000,000.00 in the Calaca II Project and that the beneficiary is the Philippine Government, this
office is of the opinion and hereby holds that Mitsubishi has no liability for income tax and other taxes and fiscal levies,
including VAT, on the 75% of the NAIA II Project and on the 100% of the foreign currency portion of the Calaca II Project
since the said taxes were assumed by the Philippine Government.
The aforequoted ruling clearly states that the Exchange of Notes grants no tax exemption and merely provides that the
Philippine Government assumes all tax liabilities. Hence, there is no violation of "the Constitutional prohibition against
grants of tax exemption without the concurrence of the majority of the members of Congress (BIR Ruling No. 071-97 citing
Sec. 28(4) Art. VI, 1987 Philippine Constitution)."
It must be noted that the Exchange of Notes is merely an agreement between the two governments (Philippines and Japan)
involved. The Exchange of Notes is not a source of tax exemption as correctly pointed out by respondent in its ruling by
stating that "there is no tax exemption to speak of because the said taxes shall be assumed by the Philippine Government."
Undoubtedly, a tax assumption is not equivalent to tax exemption. The former arises from contract while the latter is
granted by law through the legislative branch of the government. As a rule, "the claim of tax exemption must expressly be
granted in a statute stated in a language too clear to be mistaken'' (Commissioner of Internal Revenue vs. Court of Appeals,
298 SCRA 83).
The Exchange of Notes is just a preparatory agreement or a mere understanding between the two governments in which
the government of Japan will grant a loan in favor of the Philippine government to be used in the latter's economic
development program. This is evident from the opening statements of the Exchange of Notes wherein it provided that:
"Excellency,
I have the honour to confirm the following understanding recently reached between the representatives of the Government
of Japan and of the Government of the Republic of the Philippines concerning a Japanese loan to be extended with a view to
promoting economic development efforts of the Republic of the Philippines: . . . " (p. 1, Exhibit "J")
Clearly, the Exchange of Notes is not a "self-executing" agreement. This was the reason why the two loan agreements, Loan
Agreement No. PH-P76 (Exhibit "O") dated September 25, 1987 and Loan Agreement No. PH-P141 (Exhibit "P") dated
December 20, 1994, were executed providing the Philippine government enough funds to implement the Calaca II Project.
Accordingly, in order to realize this project, the NPC, the executing agency of the Philippine government entered into a
contract with herein petitioner and in said Contract the provision of Article VIII (B) (1) (Exhibit "I") was included in order to
carry-out the undertaking assumed by the Philippine government (through the NPC), to wit: HAICTD
Article VIII (B) (1)
"B. FOR ONSHORE PORTION
1.) CORPORATION (NPC) shall, subject to the provisions under the Contract Documents on Taxes, pay any and all
forms of taxes which are directly imposable under the Contract including VAT, that may be imposed by the Philippine
Government, or any of its agencies and political subdivisions."
(Exhibit "I-1")
This provision not only realized the intent of the two governments under Item 5, paragraph 2 of the Exchange of Notes but
it also recognized the covenant of the two governments not to use the proceeds of the loan in the payment of all fiscal
levies or taxes imposed by the Philippines. This statement finds support under Item 8(a) of the Exchange of Notes, to wit:
"8. The Government of the Republic of the Philippines will take necessary measures to ensure that:
(a) The Loan be used properly and exclusively for the Project, . . ."
However, despite the provision in the Contract that NPC shall assume the tax liabilities of petitioner, the latter still made
payments of the subject taxes to respondent. And now, petitioner, believing that it has made erroneous payments of the
subject taxes, is before us invoking the provision of Section 229 in relation to Section 204 of the Tax Code. cIECTH
The petition is without merit.
Petitioner has no basis in law. The provision of Section 229 is not applicable to petitioner, to wit:
Section 229. Recovery of Tax Erroneously or Illegally Collected. No suit or proceeding, shall be maintained in any
court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed
or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been
excessively or in any manner wrongfully collected, until a claim for refund or credit has been duty filed with the
Commissioner; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid
under protest or duress.
In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of the
tax or penalty regardless on any supervening cause that may arise after payment: Provided, however, That the
Commissioner may, even without a written claim therefor, refund or credit any tax, where on the face of the return upon
which payment was made, such payment appears clearly to have been erroneously paid. (Emphasis supplied)
The above-cited section speaks of taxes erroneously or illegally assessed or collected, or of any penalty claimed to have
been collected without authority, or of any sum alleged to have been excessively or in any manner wrongfully collected.
Undeniably, it is not proper for us to allow a claim for refund in favor of petitioner who, by law, is legally mandated to pay
the taxes due from it. The allegation of petitioner that the subject taxes it paid comes within the purview of an erroneous
payment merely because said taxes, by virtue of a contract, are to be assumed by NPC is unavailing.
It is a basic principle in civil law that with certain exceptions not obtaining in this case, a contract can only bind the parties
who had entered into it or their successors who assumed their personalities or their juridical positions, and that, as a
consequence, such contract can neither favor nor prejudice a third person (Ouano vs. Court of Appeals, G.R. No. 95900, July
23, 1992). Article 1311 of the Civil Code of the Philippines provides that "Contracts take effect only between the parties,
their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by
their nature, or by stipulation or by provision of law." This is the principle of relativity of contracts. CDHcaS
In the case at bar, it is undisputed that the contract was entered into only by and between the parties (NPC and herein
petitioner) and the herein respondent was neither a party thereto nor was he aware of the provision thereof. Thus,
respondent should not be made to observe the term of the contract between the parties, otherwise, the principle of
relativity of contracts, long enshrined in our substantive laws, will be violated.
The "assumption of taxes" clause in the Contract between the petitioner and NPC is not enough to put petitioner's case
within the operation of Section 229 of the Tax Code. The payments of petitioner to respondent of the income taxes and the
BPRT were made legally by it and the Contract is not enough ground to grant petitioner's claim for refund. A contract is, as
always, subordinate to the law.
However, petitioner remedy, if any, is to seek a cash refund from NPC for the equivalent amount of the income taxes and
branch profit remittance taxes it paid to the BIR. This remedy is recognized by the respondent himself when he issued
Revenue Memorandum Circular (RMC) No. 32-99, as amended by Revenue Memorandum Circular 42-99 dated June 2, 1999,
which provides that "In cases where income taxes were previously paid directly by the Japanese contractors or nationals,
the corresponding cash refund shall be recovered from the government executing agencies upon the presentation of proof
of payment thereof by the Japanese contractors or nationals".
International comity may not be invoked to evade our tax laws. Thus, the Supreme Court held:
"It is too settled a rule in this jurisdiction, as to dispense with the need for citations, that laws granting exemption from tax
are construed strictissimi juris against the taxpayer and liberally in favor of the taxing power. Taxation is the rule and
exemption is the exception. The burden of proof rests upon the party claiming exemption to prove that it is in fact covered
by the exemption so claimed, which onus petitioners have failed to discharge. Significantly, private respondents are not
even among the entities which, under Section 29(b)(7)(A) of the tax code, are entitled to exemption and which should
indispensably be the party in interest in this case. AaDSTH
Definitely, the taxability of a party cannot be blandly glossed over on the basis of a supposed "broad, pragmatic analysis"
alone without substantial supportive evidence, lest governmental operations suffer due to diminution of much needed
funds. Nor can we close this discussion without taking cognizance of petitioner's warning, of pervasive relevance at this
time, that while international comity is invoked in this case on the nebulous representation that the funds involved in the
loans are those of a foreign government, scrupulous care must be taken to avoid opening the floodgates to the violation of
our tax laws. Otherwise, the mere expedient of having a Philippine corporation enter into a contract for loans or other
domestic securities with private foreign entities, which in turn will negotiate independently with their governments, could
be availed of to take advantage of the tax exemption law under discussion." Commissioner of Internal Revenue vs.
Mitsubishi Metal Corporation, G.R. No. 54908, January 22, 1990, 181 SCRA 82.
Tax exemptions must be strictly construed such that the exemption will not be held to be conferred unless the terms under
which it is granted clearly and distinctly show that such was the intention of the parties (Philippine Acetylene Co., Inc. v.
Commissioner of Internal Revenue, G.R. No. L-19707, Aug. 17, 1967; Manila Electric Company vs. Vera, etc., G.R. No. L-
29987, Oct. 22,1975; Surigao Consolidated Mining Co., Inc. v. Collector of Internal Revenue, et al., G.R. No. L-14878,
December 26, 1963, all cited in Aban, Law of Basic Taxation of the Philippines, p. 119). Tax exemptions are not presumed
(Lealda Electric Co., Inc. v. Collector of Internal Revenue, G.R. No. L-16428, April 30, 1963). Tax refunds are in the nature of
tax exemptions. As such, they are regarded as in derogation of sovereign authority and to be construed strictissimi juris
against the person claiming the exemption (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87
[1999]).
In the light of the foregoing, we cannot conclude that the Exchange of Notes grants tax exemption to petitioner. Hence,
petitioner's claim for refund should be denied for lack of merit. ScTCIE
(SGD.) JUANITO C. CASTAEDA, JR.
Associate Judge
Donald L. Smith, petitioner vs. Commissioner of Internal Revenue
C.T.A Case no. 6268 September 12, 2002.
Facts:
This petition for review involves a claim for refund in the amount of One MillionFive Hundred Thirty Three Thousand Six
Hundred and Sixty pesos & 70/100
(1533,660.70) allegedly representing the income tax erroneously paid by hereinpetitioner for taxable year 1998.Petitioner
is a citizen of the United States and is employed as Controller of Coastal Subic Bay Terminal, Inc. , a business entity located
within the Subic SpecialEconomic Zone as created by Republic Act 7227. On April 15, 1999, petitioner filed hisannual
income tax return and paid P1,533,660.70 in compensation income taxes for theincome he derived from his employment.
Claiming that the payment of income tax onhis compensation was erroneous, petitioner filed a written claim for refund with
the BIRon April 5, 2001. Petitioner alleged that he is covered by Ra 7227 or otherwise knownas the Bases Conversion and
Development Act of 1992, thus he is tax exempt. Asthere was no immediate action and the two year prescriptive period
was about to lapse,petitioner elevated his case to the CTA by way of petition for review on April 6, 2001.
Issues:
(1) Whether or not Section 12 (c) of Republic Act No. 7227 applies to petitioner.(2) Whether or not aliens working within the
Subic Special Economic Zone are withinPhilippine jurisdiction to be subjected from income taxes on income earned from
suchemployment;
RULING:(1)
No. RA 7227 applies only to business establishments within the SubicSpecial Economic Zone. It only operates on the said
group.Petitioner relying upon RA 7227 otherwise known as the Bases Conversion adDevelopment Act of 1992 which states
that: Sec. 12.Subic Special Economic Zones.

xxx xxx xxx (c) The Provision of existing laws, rules and regulations to the contrarynotwithstanding, no taxes, local and
national, shall be imposed within the Subic SpecialEconomic Zone shall be remitted to the National Government, one
percent (1%) eachto the local government units affected by the declaration of the zone in proportion totheir population
area, and other factors. In addition, there is hereby established adevelopment fund of one percent (1%) of the gross income
earned by all businessesand enterprises within the Subic Special Economic Zone to be utilized for thedevelopment of
municipalities outside the City of Olongapo and the Municipality of Subic, and other municipalities contiguous to the
base areas. In case of conflictbetween national and local laws with respect to tax exemption privileges in the SubicSpecial
Economic Zone, the same shall be resolved in favor of the latter.
(2)
Individual aliens employed within the Subic Special Economic Zone (SSEZ)are not exempt from the awesome power of
Philippine taxation especially so that theysourced out their earnings from within the Philippines. The secured area of
SSEZ,which is virtually delineated in metes and bounds by Proclamation No. 532, issued bythe then President Fidel Ramos
on February 1, 1995, is in reality part of the territorial
jurisdiction of the Philippines. To buttress the point that SSEZ is indeed within thePhilippine jurisdiction, Section 12 (h) of
RA 7227, actually placed the fenced-off area of SSEZ under the responsibility of the Philippine National Government, thus,
"Thedefense of the zone and the security of its perimeters shall be the responsibility of theNational Government in
coordination with the Subic Bay Metropolitan Authority. TheSubic Bay Metropolitan Authority shall provide and establish its
own internal securityand fire-fighting forces."Such being the case, all subjects over which the Philippinescan exercise
dominion are necessarily objects of taxation. As such, all subjects of taxation within its jurisdiction are required to pay tax
in exchange of the protection thatthe state gives. Thus, the SSEZ, being within the territorial boundaries of thePhilippines,
the aliens residing therein, who enjoy the benefits and protection from thesaid state are not exempt from contributing
their share in the running of thegovernment. They have the bounden duty to surrender part of their hard-earnedincome to
the taxing authorities.

Sison vs Ancheta (1984)

February 15, 2013 markerwins Tax Law
Facts: Batas Pambansa 135 was enacted. Sison, as taxpayer, alleged that its provision (Section 1) unduly discriminated
against him by the imposition of higher rates upon his income as a professional, that it amounts to class legislation, and
that it transgresses against the equal protection and due process clauses of the Constitution as well as the rule requiring
uniformity in taxation.
Issue: Whether BP 135 violates the due process and equal protection clauses, and the rule on uniformity in taxation.
Held: There is a need for proof of such persuasive character as would lead to a conclusion that there was a violation of the
due process and equal protection clauses. Absent such showing, the presumption of validity must prevail. Equality and
uniformity in taxation means that all taxable articles or kinds of property of the same class shall be taxed at the same rate.
The taxing power has the authority to make reasonable and natural classifications for purposes of taxation. Where the
differentitation conforms to the practical dictates of justice and equity, similar to the standards of equal protection, it is not
discriminatory within the meaning of the clause and is therefore uniform. Taxpayers may be classified into different
categories, such as recipients of compensation income as against professionals. Recipients of compensation income are not
entitled to make deductions for income tax purposes as there is no practically no overhead expense, while professionals
and businessmen have no uniform costs or expenses necessaryh to produce their income. There is ample justification to
adopt the gross system of income taxation to compensation income, while continuing the system of net income taxation as
regards professional and business income.