Fundamental Principles in Taxation
· Taxation is the inherent power of the sovereign, exercised through the legislature, to impose burdens upon subjects and objects within its jurisdiction for the purpose of raising revenues to carry out the legitimate objects of government.
· It is also defined as the act of levying a tax, i.e. the process or means by which the sovereign, through its law-making body, raises income to defray the necessary expenses of government. It is a method of apportioning the cost of government among those who, in some measure, are privileged to enjoy its benefits and must therefore bear its burdens.
· Taxes are the enforced proportional contributions from persons and property levied by the law-making body of the State by virtue of its sovereignty for the support of the government and all public needs.
1. It is an enforced contribution.
2. It is generally payable in money.
3. It is proportionate in character.
4. It is levied on persons, property, or the exercise of a right or privilege.
5. It is levied by the State which has jurisdiction over the subject or object of taxation.
6. It is levied by the law-making body of the State.
7. It is levied for public purpose or purposes.
1. Revenue or fiscal: The primary purpose of taxation on the part of the government is to provide funds or property with which to promote the general welfare and the protection of its citizens and to enable it to finance its multifarious activities.
2. Non-revenue or regulatory: Taxation may also be employed for purposes of regulation or control.
a) Imposition of tariffs on imported goods to protect local industries.
b) The adoption of progressively higher tax rates to reduce inequalities in wealth and income.
c) The increase or decrease of taxes to prevent inflation or ward off depression.
PAL v. Edu, 164 SCRA 320
· The legislative intent and purpose behind the law requiring owners of vehicles to pay for their registration is mainly to raise funds for the construction and maintenance of highways and, to a much lesser degree, pay for the operating expenses of the administering agency. It is possible for an exaction to be both a tax and a regulation. License fees are charges, looked to as a source of revenue as well as a means of regulation. The fees may properly be regarded as taxes even though they also serve as an instrument of regulation. If the purpose is primarily revenue, or if revenue is at least one of the real and substantial purposes, then the exaction is properly called a tax.
Tio v. Videogram, 151 SCRA 208
· PD 1987 which created the Videogram Regulatory Board also imposed a 30% tax on the gross receipts payable to the local government. SC upheld the validity of the law ruling that the tax imposed is not only a regulatory, but also a revenue, measure prompted by the realization that earnings of videogram establishments of around P600 million annually have not been subjected to tax, thereby depriving the government of an additional source of revenue. It is a user tax imposed on retailers for every video they make available for public viewing. The 30% tax also served a regulatory purpose: to answer the need for regulating the video industry, particularly the rampant film piracy, the flagrant violation of intellectual property rights, and the proliferation of pornographic video tapes.
Caltex v. Commissioner, 208 SCRA 755
· Taxation is no longer a measure merely to raise revenue to support the existence of government. Taxes may be levied with a regulatory purpose to provide means for the rehabilitation and stabilization of a threatened industry which is affected with public interest as to be within the police power of the State. The oil industry is greatly imbued with public interest as it vitally affects the general welfare.
· More popularly known as the non-revenue or regulatory purpose of taxation. While the primary purpose of taxation is to raise revenue for the support of the government, taxation is often employed as a devise for regulation by means of which certain effects or conditions envisioned by the government may be achieved.
· For example, government may provide tax incentives to protect and promote new and pioneer industries. The imposition of special duties, like dumping duty, marking duty, retaliatory duty, and countervailing duty, promote the non-revenue or sumptuary purpose of taxation.
· The power of taxation proceeds upon the theory that the existence of government is a necessity; that it cannot continue without means to pay its expenses; and that for these means, it has a right to compel all its citizens and property within its limits to contribute.
· The basis of taxation is found in the reciprocal duties of protection and support between the State and its inhabitants. In return for his contribution, the taxpayer received benefits and protection from the government. This is the so-called “benefits received principle.”
· The life blood theory constitutes the theory of taxation, which provides that the existence of government is a necessity; that government cannot continue without means to pay its expenses; and that for these means it has a right to compel its citizens and property within its limits to contribute.
· In Commissioner v. Algue, the Supreme Court said that taxes are the lifeblood of the government and should be collected without unnecessary hindrance. They are what we pay for a civilized society. Without taxes, the government would be paralyzed for lack of motive power to activate and operate it. The government, for its part, is expected to respond in the form of tangible and intangible benefits intended to improve the lives of the people and enhance their moral and material values.
Illustrations of lifeblood theory
1. Collection of taxes cannot be enjoined by injunction.
2. Taxes could not be the subject of compensation or set off.
3. A valid tax may result in destruction of the taxpayer’s property.
4. Taxation is an unlimited and plenary power.
· This principle serves as the basis of taxation and is founded on the reciprocal duties of protection and support between the State and its inhabitants. Also called “symbiotic relation” between the State and its citizens.
· In return for his contribution, the taxpayer receives the general advantages and protection which the government affords the taxpayer and his property. One is compensation or consideration for the other; protection for support and support for protection.
· However, it does not mean that only those who are able to and do pay taxes can enjoy the privileges and protection given to a citizen by the government.
· In fact, from the contribution received, the government renders no special or commensurate benefit to any particular property or person. The only benefit to which the taxpayer is entitled is that derived from the enjoyment of the privileges of living in an organized society established and safeguarded by the devotion of taxes to public purpose. The government promises nothing to the person taxed beyond what may be anticipated from an administration of the laws for the general good. [Lorenzo v. Posadas]
· Taxes are essential to the existence of the government. The obligation to pay taxes rests not upon the privileges enjoyed by or the protection afforded to the citizen by the government, but upon the necessity of money for the support of the State. For this reason, no one is allowed to object to or resist payment of taxes solely because no personal benefit to him can be pointed out as arising from the tax. [Lorenzo v. Posadas]
· The term tariff and custom duties are used interchangeably in the Tariff and Customs Code or PD No. 1464.
· Customs duties, or simply duties, are taxes imposed on goods exported from or imported into a country. Custom duties are really taxes but the latter term is broader in scope.
· On the other hand, tariff may be used in one of three senses:
1. A book of rates drawn usually in alphabetical order containing the names of several kinds of merchandise with the corresponding duties to be paid for the same; or
2. The duties payable on goods imported or exported; or
3. The system or principle of imposing duties on the importation or exportation of goods.
1. License fee is legal compensation or reward of an officer for specific services while a tax is an enforced contribution from persons or property by the law-making body by virtue of its sovereignty and for the support of the government and all public needs.
2. License fee is imposed for regulation, while tax is levied for revenue.
3. License fee involves the exercise of police power, tax of the taxing power.
4. Amount of license fee should be limited to the necessary expenses of inspection and regulation, while there is generally no limit on the amount of the tax to be imposed.
5. License fee is imposed only on the right to exercise a privilege, while tax is imposed also on persons and property.
6. Failure to pay a license fee makes the act or business illegal, while failure to pay a tax does not necessarily make the act or business illegal.
· Examples: motor vehicle registration fee, sugar levy, coconut levy, regulation of non-useful occupations
· PAL v. Edu: This involves the imposition of motor vehicle registration fees which the Supreme Court ruled as taxes. Fees may be regarded as taxes even though they also serve as instruments of regulation because taxation may be made the implement of the State’s police power. But if the purpose is primarily revenue, or if revenue is, at least, one of the real and substantial purposes, then the exaction is properly called a tax.
Criteria for determining license fees
1. Imposition must relate to an occupation or activity which involves the health, morals, safety and development of the people and which needs regulation for the protection and promotion of the public interest.
2. Imposition must also bear a reasonable relation to the probable expenses of regulation, taking into account the costs of direct regulation as well as the incidental expenses.
Instances when license fees could exceed cost of regulation, control or administration
1. When the collection or the license fee is authorized under both the power of taxation and police power
2. When the license fee is collected to regulate a non-useful occupation
1. A special assessment is an enforced proportional contribution from owners of lands specially or peculiarly benefited by public improvements.
2. A special assessment is levied only on land.
3. A special assessment is not a personal liability of the person assessed; it is limited to the land.
4. A special assessment is based wholly on benefits, not necessity.
5. A special assessment is exceptional both as to time and place; a tax has general application.
Republic v. Bacolod Murcia, 17 SCRA 632
· A special assessment is a levy on property which derives some special benefit from the improvement. Its purpose is to finance such improvement. It is not a tax measure intended to raise revenues for the government. The proceeds thereof may be devoted to the specific purpose for which the assessment was authorized, thus accruing only to the owners thereof who, after all, pay the assessment.
· An exemption from taxation does not include exemption from a special assessment.
· The power to tax carries with it the power to levy a special assessment.
Toll v. tax
1. Toll is a sum of money for the use of something. It is the consideration which is paid for the use of a road, bridge, or the like, of a public nature. Taxes, on the other hand, are enforced proportional contributions from persons and property levied by the State by virtue of its sovereignty for the support of the government and all public needs.
2. Toll is a demand of proprietorship; tax is a demand of sovereignty.
3. Toll is paid for the use of another’s property; tax is paid for the support of government.
4. The amount paid as toll depends upon the cost of construction or maintenance of the public improvement used; while there is no limit on the amount collected as tax as long as it is not excessive, unreasonable, or confiscatory.
5. Toll may be imposed by the government or by private individuals or entities; tax may be imposed only by the government.
Tax v. penalty
1. Penalty is any sanction imposed as a punishment for violation of law or for acts deemed injurious; taxes are enforced proportional contributions from persons and property levied by the State by virtue of its sovereignty for the support of the government and all public needs.
2. Penalty is designed to regulate conduct; taxes are generally intended to generate revenue.
3. Penalty may be imposed by the government or by private individuals or entities; taxes only by the government.
1. A debt is generally based on contract, express or implied, while a tax is based on laws.
2. A debt is assignable, while a tax cannot generally be assigned.
3. A debt may be paid in kind, while a tax is generally paid in money.
4. A debt may be the subject of set off or compensation, a tax cannot.
5. A person cannot be imprisoned for non-payment of tax, except poll tax.
6. A debt is governed by the ordinary periods of prescription, while a tax is governed by the special prescriptive periods provided for in the NIRC.
7. A debt draws interest when it is so stipulated or where there is default, while a tax does not draw interest except only when delinquent.
Requisites of compensation
1. That each one of the obligor be bound principally, and that he be at the same time a principal creditor of the other.
2. That both debts consist in a sum of money, or if the things due are consumable, they be of the same kind and also of the same quality if the latter has been stated.
3. That the two debts be due.
4. That they be liquidated and demandable.
5. That over neither of them there be any retention or controversy, commenced by third persons and communicated in due time to the debtors.
Rules re: set off or compensation of debts
· General rule: A tax delinquency cannot be extinguished by legal compensation. This is so because the government and the tax delinquent are not mutually creditors and debtors. Neither is a tax obligation an ordinary debt. Moreover, the collection of a tax cannot await the results of a lawsuit against the government. Finally, taxes are not in the nature of contracts but grow out of a duty to, and are the positive acts of the, government to the making and enforcing of which the personal consent of the taxpayer is not required. [Francia v. IAC, 162 SCRA 754 and Republic v. Mambulao Lumber, 4 SCRA 622]
· Exception: SC allowed set off in the case of Domingo v. Garlitos [8 SCRA 443] re. claim for payment of unpaid services of a government employee vis-a-vis the estate taxes due from his estate. The fact that the court having jurisdiction of the estate had found that the claim of the estate against the government has been appropriated for the purpose by a corresponding law shows that both the claim of the government for inheritance taxes and the claim of the intestate for services rendered have already become overdue and demandable as well as fully liquidated. Compensation therefore takes place by operation of law.
Philex Mining Corporation v. Commissioner, 294 SCRA 687 (1998)
· Philex Mining Corporation wants to set off its claims for VAT input credit/refund for the excise taxes due from it. The Supreme Court disallowed such set off or compensation.
· Taxes cannot be subject to compensation for the simple reason that the government and the taxpayer are not creditors and debtors of each other. There is a material distinction between a tax and a debt. Debts are due to the government in its corporate capacity, while taxes are due to the government in its sovereign capacity.
Survey of Philippine Taxes
A. Internal revenue taxes imposed under the NIRC
1. Income tax
2. Transfer taxes
a. Estate Tax
b. Donor’s Tax
3. Percentage taxes
a. Value Added Tax
b. Other Percentage Taxes
4. Excise taxes
5. Documentary stamp tax
B. Local/Municipal Taxes
C. Tariff and Customs Duties
D. Taxes/Tax incentives under special laws
1. Personal, poll or capitation tax
Tax of a fixed amount imposed on persons residing within a specified territory, whether citizens or not, without regard to their property or the occupation or business in which they may be engaged, i.e. community tax.
2. Property tax
Tax imposed on property, real or personal, in proportion to its value or in accordance with some other reasonable method of apportionment.
3. Excise tax
A charge imposed upon the performance of an act, the enjoyment of a privilege, or the engaging in an occupation.
1. General/fiscal/revenue tax
A general/fiscal/revenue tax is that imposed for the purpose of raising public funds for the service of the government.
2. Special/regulatory tax
A special or regulatory tax is imposed primarily for the regulation of useful or non-useful occupation or enterprises and secondarily only for the purpose of raising public funds.
As to who bears the burden
1. Direct tax
A direct tax is demanded from the person who also shoulders the burden of the tax. It is a tax which the taxpayer is directly or primarily liable and which he or she cannot shift to another.
2. Indirect tax
An indirect tax is demanded from a person in the expectation and intention that he or she shall indemnify himself or herself at the expense of another, falling finally upon the ultimate purchaser or consumer. A tax which the taxpayer can shift to another.
1. National tax
A national tax is imposed by the national government.
2. Local tax
A local tax is imposed by municipal corporations or local government units (LGUs).
1. Specific tax
A specific tax is a tax of a fixed amount imposed by the head or number or by some other standard of weight or measurement. It requires no assessment other than the listing or classification of the objects to be taxed.
2. Ad valorem tax
An ad valorem tax is a tax of a fixed proportion of the value of the property with respect to which the tax is assessed. It requires the intervention of assessors or appraisers to estimate the value of such property before the amount due from each taxpayer can be determined.
1. Proportional tax
Tax based on a fixed percentage of the amount of the property receipts or other basis to be taxed. Example: real estate tax.
2. Progressive or graduated tax
Tax the rate of which increases as the tax base or bracket increases. Example: income tax.
Digressive tax rate: progressive rate stops at a certain point. Progression halts at a particular stage.
3. Regressive tax
Tax the rate of which decreases as the tax base or bracket increases. There is no such tax in the Philippines.
Aspects of Taxation
1. Levying or imposition of the tax which is a legislative act.
2. Collection of the tax levied which is essentially administrative in character.
The first is taxation, strictly speaking, while the second may be referred to as tax administration. The two processes together constitute the taxation system.
· The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. [Section 28(1), Article VI, Constitution]
· Tolentino v. Secretary of Finance: Regressivity is not a negative standard for courts to enforce. What Congress is required by the Constitution to do is to “evolve a progressive system of taxation.” This is a directive to Congress, just like the directive to it to give priority to the enactment of laws for the enhancement of human dignity. The provisions are put in the Constitution as moral incentives to legislation, not as judicially enforceable rights.
· A progressive system of taxation means that tax laws shall place emphasis on direct taxes rather than on indirect taxes, with ability to pay as the principal criterion.
· A regressive system of taxation exists when there are more indirect taxes imposed than direct taxes.
· Tax the rate of which decreases as the tax base or bracket increases. There are no regressive taxes in the Philippine jurisdiction.
· Regressive tax rates should be differentiated from a regressive system of taxation which exists when there are more indirect taxes imposed than direct taxes.
1. Fiscal adequacy
It means that the sources of revenue should be sufficient to meet the demands of public expenditures. [Chavez v. Ongpin, 186 SCRA 331]
2. Equality or theoretical justice
It means that the tax burden should be proportionate to the taxpayer’s ability to pay. This is the so-called “ability to pay principle.”
3. Administrative feasibility
It means that tax laws should be capable of convenient, just and effective administration.
Nature and Limitations of the Power of Taxation
1. It is inherent in sovereignty; hence, it may be exercised although it is not expressly granted by the Constitution.
2. It is legislative in character; hence, only the legislature can impose taxes (although the power may be delegated).
3. It is subject to Constitutional and inherent limitations; hence, it is not an absolute power that can be exercised by the legislature anyway it pleases.
Power to tax v. Police power v. Power of eminent domain
Power of the State to demand enforced contributions for public purposes
Power of the State to enact such laws in relation to persons and property as may promote public health, safety, morals, and the general welfare of the public
Power of the State to take private property for public use upon paying to the owner a just compensation to be ascertained according to law
Authority Exercising the Power
Only the government or its political subdivisions
Only the government or its political subdivisions
May be granted to public service companies of public utilities
Enforced contribution is demanded for the support of the government
Use of property is regulated for the purpose of promoting the general welfare
Property is taken for public use
Operates upon a community or class of individuals
Operates upon a community or class of individuals (usually)
Operates on an individual as the owner of a particular property
Money contributed in the concept of taxes becomes part of public funds
No transfer of title, at most, there is restraint on injurious use of the property
Transfer of the right to property whether it be ownership or a lesser right
Assumed that the individual receives the equivalent of the tax in the form of protection, and benefits received from the government as such
Person affected receives no direct and immediate benefit but only such as may arise from the maintenance of a healthy economic standard of society
Person affected receives the market value of the property taken from him
AMOUNT OF IMPOSITION
Generally no limit on the amount of tax that may be imposed
Amount imposed should not be more than that sufficient to cover the cost of the license and the necessary expenses of regulation
No amount imposed but rather the owner is paid the market value of the property taken
Relationship to the Constitution
Subject to certain Constitutional limitations
Relatively free from Constitutional limitations and is superior to the impairment provisions
Subject to certain Constitutional limitations (e.g. inferior to impairment of contracts clause)
Power to tax involves the power to destroy so it must be exercised with caution
· Chief Justice Marshall declared that the power to tax is also called the power to destroy. Therefore, it should be exercised with caution to minimize injury to the proprietary rights of the taxpayer. It must be exercised fairly, equally and uniformly, less the tax collector kills the “hen that lays the golden egg.” And in order to maintain the general public’s trust and confidence in the government, this power must be used justly and not treacherously. [Chief Justice Marshall in McCulloch v. Maryland, reiterated in Roxas v. CTA, 23 SCRA 276]
· Justice Holmes seemingly contradicted the Marshallian view by declaring in Panhandle Oil Company v. Mississippi that “the power to tax is not the power to destroy while this court sits.”
Domondon’s reconciliation of Marshall and Holmes
· The imposition of a valid tax could not be judicially restrained merely because it would prejudice taxpayer’s property.
· An illegal tax could be judicially declared invalid and should not work to prejudice a taxpayer’s property.
· Marshall’s view refers to a valid tax while Holmes’ view refers to an invalid tax.
Power to tax is exclusively legislative in nature
· The power to tax is peculiarly and exclusively legislative and cannot be exercised by the executive or judicial branches of the government. Hence, only Congress can impose taxes.
1. The subject or object to be taxed.
2. The purpose of the tax so long as it is a public purpose.
3. The amount or rate of the tax.
4. The manner, means, and agencies of collection of the tax.
Commissioner v. Santos, 277 SCRA 617 (1997)
· The Supreme Court held that it is within the province of the legislature whether to tax jewelry or not. With the legislature primarily lies the discretion to determine the nature (kind), object (purpose), extent (rate), coverage (subjects), and situs (place) of taxation.
· It is inherent in the power to tax that the State be free to select the subjects of taxation, and it has been repeatedly held that “inequalities which result from a singling out of one particular class for taxation, or exemption, infringe no Constitutional limitation.”
Power to tax cannot be delegated
· The power of taxation, being purely legislative, Congress cannot delegate such power. This limitation arises from the doctrine of separation of powers among the three branches of government.
Exceptions to the non-delegation rule
1. Delegation to the President
2. Delegation to local government units
3. Delegation to administrative agencies
· A case where the act complained of directly involves the illegal disbursement of public funds derived from taxation.
· Taxpayers have locus standi to question the validity of tax measures or illegal expenditures of public money. In such cases, they are parties in interest who will be prejudiced or benefited by the avails of the suit.
· On the other hand, public officials have locus standi because it is their duty to protect public interest.
· The general rule is that not only persons individually affected but also taxpayers have sufficient interest of preventing the illegal expenditures of money raised by taxation. They may, therefore, question in the proper court the constitutionality of statutes requiring the expenditure of public funds.
· But a taxpayer is not relieved from the obligation of paying a tax because of his belief that it is being misappropriated by certain officials, for otherwise, collection of taxes would be hampered and this may result in the paralyzation of important governmental functions.
Lozada v. COMELEC
· In this case, the petitioner filed a taxpayer’s suit to compel the COMELEC to schedule a special election for vacancies in the Batasang Pambansa. The Supreme Court held that this is not a taxpayer’s suit as nowhere is it alleged that tax is being illegally spent.
· SC reiterated that it is only when an act complained of, which may include a legislative enactment of a statute, involves the illegal expenditure of public money that the so-called taxpayer suit may be allowed.
1. Purpose must be public in nature
2. Prohibition against delegation of the taxing power
3. Exemption of government entities, agencies and instrumentalities
4. International comity
5. Limitation of territorial jurisdiction
· This is one of the inherent limitations of the power to tax and is synonymous to “governmental purpose.” A tax must always be imposed for a public purpose, otherwise, it will be declared as invalid.
· The term “public purpose” has no fixed connotation. The essential point is that the purpose of the tax affects the inhabitants as a community and not merely as inhabitants.
· It has been said that the best test of rightful taxation is that the proceeds of the tax must be used:
a) for the support of the government; or
b) some of the recognized objects of government; or
c) to promote the welfare of the community.
Effect of incidental benefit to private interest
· The purposes to be accomplished by taxation need not be exclusively public. Although private individuals are directly benefited, the tax would still be valid provided such benefit is only incidental.
· The test is not as to who receives the money, but the character of the purpose for which it is expended; not the immediate result of the expenditure, but rather the ultimate results.
· The appropriation of public money to construct a road on a private land is not a public purpose. [Pascual v. Secretary of Public Works, 110 Phil. 331]
Exceptions to the non-delegation rule
1. Delegation to the President
2. Delegation to local government units
3. Delegation to administrative agencies
Delegation to the President
· Congress may authorize, by law, the President to fix, within specified limits and subject to such limitations and restrictions as it may impose:
1. tariff rates;
2. import and export quotas;
3. tonnage and wharfage dues; and
4. other duties or imposts within the national development program of the government.
· This authorization is embodied in Section 401 of the Tariff and Customs Code which is also called the flexible tariff clause.
Flexible tariff clause
· In the interest of national economy, general welfare and/or national security, the President, upon recommendation of the National Economic and Development Authority, is empowered:
1. To increase, reduce, or remove existing protective rates of import duty, provided that the increase should not be higher than 100% ad valorem;
2. To establish import quota or to ban imports of any commodity; and
3. To impose additional duty on all imports not exceeding 10% ad valorem.
Delegation to local government units
· The power of local government units to impose taxes and fees is always subject to the limitations which Congress may provide, the former having no inherent power to tax. [Basco v. PAGCOR]
· Municipal corporations are mere creatures of Congress which has the power to create and abolish municipal corporations. Congress therefore has power of control over local government units. If Congress can grant to a municipal corporation the power to tax certain matters, it can also provide for exemptions or even to take back the power.
Delegation to administrative agencies
· With the growing complexities of modern life and the many technical fields of governmental functions, as in matters pertaining to tax exemptions, delegation of legislative powers has become the rule and non-delegation the exception. The legislature may not have the competence, let alone the interest and the time, to provide direct and efficacious solutions to many problems attendant upon present day undertakings. The legislature could not be expected to state all the detailed situations wherein the tax exemption privilege would be restored. The task may be assigned to an administrative body like the Fiscal Incentives Review Board (FIRB). [Maceda v. Macaraig, 196 SCRA 771]
· For delegation to be constitutionally valid, the law must be complete in itself and must set forth sufficient standards.
· Certain aspects of the taxing process that are not really legislative in nature are vested in administrative agencies. In these cases, there really is no delegation, to wit: a) power to value property; b) power to assess and collect taxes; c) power to perform details of computation, appraisement or adjustment; among others.
Reasons for exempting governmental entities
· Government will be taxing itself to raise money for itself.
· Immunity is necessary in order that governmental functions will not be impeded.
What government entities are exempt from income tax?
1. Government Service Insurance System (GSIS)
2. Social Security System (SSS)
3. Philippine Health Insurance Corporation (PHIC)
4. Philippine Charity Sweepstakes Office (PCSO)
5. Philippine Amusement and Gaming Corporation (PAGCOR)
· Courteous, friendly agreement and interaction between nations.
· Under international law, property of a foreign State may not be taxed by another State.
Reasons for exception
1. Sovereign equality of States
2. When one State enters the territory of another State, there is an implied understanding that the former does not intend to denigrate its dignity by placing itself under the jurisdiction of the other State
3. Immunity from suit of a State
Limitation of a territorial jurisdiction
· Tax laws cannot operate beyond a state’s territorial limits.
· Property outside one’s jurisdiction does not receive any protection from the state.
1. Due process of law
2. Equal protection of laws
3. Rule of uniformity and equity in taxation
4. Prohibition against imprisonment for non-payment of poll tax
5. Prohibition against impairment of obligation of contracts
6. Prohibition against infringement of religious freedom
7. Prohibition against appropriation of proceeds of taxation for the use, benefit, or support of any church
8. Prohibition against taxation of religious, charitable and educational entities
9. Prohibition against taxation of non-stock, non-profit educational institutions
a. Grant of tax exemption
b. Veto of appropriation, revenue, tariff bills by the President
c. Non-impairment of the SC jurisdiction
d. Revenue bills shall originate exclusively from the House of Representatives
e. Infringement of press freedom
f. Grant of franchise
Due process of law
· There must be a valid law.
· Tax measure should not be unconscionable and unjust as to amount to confiscation of property.
· Tax statute must not be arbitrary as to find no support in the Constitution.
Equal protection of laws
· All persons subject to legislation shall be treated alike under similar circumstances and conditions both in the privileges conferred and liabilities imposed.
· The doctrine does not require that persons or properties different in fact be treated in law as though they were the same. What it prohibits is class legislation which discriminates against some and favors others.
· As long as there are rational or reasonable grounds for so doing, Congress may group persons or properties to be taxed and it is sufficient if all members of the same class are subject to the same rate and the tax is administered impartially upon them.
Requisites of a valid classification
1. It must be based on substantial distinctions which make real differences.
2. The classification must be germane to the purpose of the law.
3. The classification must not be limited to existing conditions only but must also apply to future conditions substantially identical to those of the present.
4. The classification must apply equally to all members of the same class. [Tiu v. Court of Appeals, 301 SCRA 278 (1999)]
Tiu v. Court of Appeals, 301 SCRA 278 (1999)
· The Constitutional right to equal protection of the law is not violated by an executive order, issued pursuant to law, granting tax and duty incentives only to business within the “secured area” of the Subic Special Economic Zone and denying them to those who live within the Zone but outside such “fenced in” territory. The Constitution does not require absolute equality among residents. It is enough that all persons under like circumstances or conditions are given the same privileges and required to follow the same obligations. In short, a classification based on valid and reasonable standards does not violate the equal protection clause.
· We find real and substantial distinctions between the circumstances obtaining inside and those outside the Subic Naval Base, thereby justifying a valid and reasonable classification.
· Section 28 (c), Article VI of the Constitution provides that “the rule of taxation shall be uniform and equitable.”
· The concept of uniformity in taxation implies that all taxable articles or properties of the same class shall be taxed at the same rate. It requires the uniform application and operation, without discrimination, of the tax in every place where the subject of the tax is found. It does not, however, require absolute identity or equality under all circumstances, but subject to reasonable classification.
· The concept of equity in taxation requires that the apportionment of the tax burden be, more or less, just in the light of the taxpayer’s ability to shoulder the tax burden and, if warranted, on the basis of the benefits received from the government. Its cornerstone is the taxpayer’s ability to pay.
Prohibition against imprisonment for non-payment of poll tax
· No person shall be imprisoned for debt or non-payment of poll tax. [Section 20, Article III, Constitution]
· The non-imprisonment rule applies to non-payment of poll tax which is punishable only by a surcharge, but not to other violations like falsification of community tax certificate and non-payment of other taxes.
· Poll tax is a tax of fixed amount imposed on residents within a specific territory regardless of citizenship, business or profession. Example is community tax.
Prohibition against impairment of obligation of contracts
· No law impairing the obligation of contracts shall be passed. [Section 10, Article III, Constitution]
· The obligation of a contract is impaired when its terms or conditions are changed by law or by a party without the consent of the other, thereby weakening the position or rights of the latter.
· An example of impairment by law is when a later taxing statute revokes a tax exemption based on a contract. But this only applies when the tax exemption has been granted for a valid consideration.
· A later statute may revoke exemption from taxation provided for in a franchise because the Constitution provides that a franchise is subject to amendment, alteration or repeal.
Prohibition against infringement of religious freedom
· No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. [Section 5, Article III, Constitution]
· The payment of license fees for the distribution and sale of bibles suppresses the constitutional right of free exercise of religion. [American Bible Society v. Manila, 101 Phil. 386]
Prohibition against appropriation of proceeds of taxation for the use, benefit, or support of any church
Section 29, Article VI, Constitution
1. No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.
2. No public money or property shall be appropriated, applied, paid, or employed directly or indirectly, for the use, benefit, or support of any church, denomination, sectarian institution or system of religion, or of any priest, preacher, minister or other religious teacher, or dignitary as such except when such priest, preacher, minister or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.
3. All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the government.
Prohibition against taxation of real property actually, directly and exclusively used for religious, charitable and educational purposes
· Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. [Section 28 (3) , Article VI, Constitution]
· This is an exemption from real property tax only.
· The exemption in favor of property used exclusively for charitable or educational purposes is not limited to property actually indispensable therefore, but extends to facilities which are incidental to and reasonably necessary for the accomplishment of said purposes. [Abra Valley College v. Aquino, 162 SCRA 106]
Prohibition against taxation of the revenues and assets of non-stock, non-profit educational institutions
· All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law. [Section 4, Article XIV, Constitution]
· This exemption from corporate income tax is embodied in Section 30 of the NIRC which includes a non-stock, non-profit educational institution.
· Note however the last paragraph of Section 30 which states: “Notwithstanding the provisions in the preceding paragraphs, the income of whatever kind and character of the foregoing organizations from any of their property, real or personal, or from any of their activities conducted for profit, regardless of the disposition made of such income, shall be subject to tax imposed under this Code.”
· Non-stock, non-profit educational institutions are exempt from taxes on all their revenues and assets used actually, directly and exclusively for educational purposes.
· However, they shall be subject to internal revenue tax on income from trade, business or other activity, the conduct of which is not related to the exercise or performance by such educational institution of its educational purposes or functions.
· Interest income shall be exempt only when used directly and exclusively for educational purposes. To substantiate this claim, the institution must submit an annual information return and duly audited financial statement. A certification of actual utilization and the Board resolution or the proposed project to be funded out of the money deposited in banks shall also be submitted.
· An educational institution means a non-stock, non-profit corporation or association duly registered under Philippine law, and operated exclusively for educational purposes, maintained and administered by a private individual or group offering formal education, and with an issued permit to operate by the DECS.
· Revenues derived from and assets used in the operation of cafeteria/canteens, dormitories, and bookstores are exempt from taxation provided they are owned and operated by the educational institution as ancillary activities and the same are located within the school premises.
Commissioner of Internal Revenue v. Court of Appeals, et.al., 298 SCRA 83 (1998)
The Young Men’s Christian Association of the Philippines, Inc. (YMCA) was established as “a welfare, educational and charitable non-profit corporation.” It conducts various programs and activities that are beneficial to the public, especially the young people, pursuant to its religious, educational and charitable objectives.
In this case, the Supreme Court held that the income derived by YMCA from leasing out a portion of its premises to small shop owners, like restaurant and canteen operators, and from parking fees collected from non-members are taxable income.
First, the constitutional tax exemption granted to non-stock, non-profit educational institutions does not find application because YMCA is not an educational institution. The term “educational institution” or “institution of learning” has acquired a well known technical meaning. Under the Education Act of 1982, such term refers to schools. The school system is synonymous with formal education, which “refers to the hierarchically structured and chronologically graded learnings organized and provided by the formal school system and for which certification is required in order for the learner to progress through the grades or move to the higher levels. A perusal of the articles of incorporation of YMCA does not show that it established such a system.
Second, even if it be exempt under Section 30 of the NIRC as a non-profit, non-stock educational corporation, the income from the rent of its premises and parking fees is not covered by the exemption, according to the last paragraph of the same section. Section 30 provides that income of whatever kind and character from any of its properties, real or personal, or from any of its activities for profit are not exempt from income tax.
Finally, Section 28(3), Article VI of the Constitution does not apply as it extends exemption only from real property taxes – not from income taxes.
Taxation of proprietary educational institutions
· Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for investment. [Section 4 (3), Article XIV, Constitution]
· Under Section 27(B) of the NIRC, proprietary educational institutions and hospitals which are non-profit shall pay a tax of ten percent (10%) on their taxable income except for passive incomes which are subject to different tax rates.
Other constitutional limitations
1. Grant of tax exemption
No law granting any tax exemption shall be passed without the concurrence of a majority of all Members of Congress. [Section 28 (4), Article VI, Constitution]
2. Veto of appropriation, revenue, or tariff bills by the President
The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object. [Section 27 (2) Article VI, Constitution]
An item in a bill refers to particulars, details, the distinct and severable parts of a bill. In budgetary legislation, an item is an individual sum of money dedicated to a stated purpose. [Gonzales v. Macaraig, 191 SCRA 452]
3. Non-impairment of the jurisdiction of the Supreme Court
Congress cannot take away from the Supreme Court the power given to it by the Constitution as the final arbiter of tax cases.
The Supreme Court shall have the following powers:
Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. [Section 5 (2) (b), Article VIII, Constitution]
4. Revenue bills shall originate exclusively from the House of Representatives
All appropriation, revenue or tariff bills, bills authorizing an increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. [Section 24, Article VI, Constitution]
The Constitution simply means that the initiative for the filing of bills must come from the House of Representatives, on the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. It is not the law – but the revenue bill – which is required by the Constitution to originate exclusively in the House of Representatives, because a bill originating in the House may undergo such extensive changes in the Senate that the result may be a rewriting of the whole, and a distinct bill may be produced. [Tolentino v. Secretary of Finance]
The Constitution does not also prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, as long as action by the Senate is withheld until receipt of said bill. [Tolentino v. Secretary of Finance]
5. Infringement of press freedom
This limitation does not mean that the press is exempt from taxation. Taxation constitutes an infringement of press freedom when it operates as a prior restraint to the exercise of this constitutional right. When the tax is imposed on the receipts or the income of the press it is a valid exercise of the sovereign prerogative.
6. Grant of franchise
Tax exemptions included in the grant of a franchise may be revoked by another law as it is specifically provided in the Constitution that the grant of any franchise is always subject to amendment, alteration, or repeal by the Congress when the common good so requires.
Situs of taxation
· Literally, situs of taxation means place of taxation. It is the State or political unit which has jurisdiction to impose a particular tax.
· The determination of the situs of taxation depends on various factors including the:
1. Nature of the tax;
2. Subject matter thereof (i.e. person, property, act or activity;
3. Possible protection and benefit that may accrue both to the government and the taxpayer;
4. Residence or citizenship of the taxpayer; and
5. Source of the income.
Situs of tax on persons (poll tax)
· Poll tax may be properly levied upon persons who are inhabitants or residents of the State, whether or not they are citizens.
Situs of tax on real property
· Situs is where the property is located pursuant to the principle of lex rei sitae. This applies whether or not the owner is a resident of the place where the property is located.
· This is so because the taxing authority has control over the property which is of a fixed and stationary character.
· The place where the real property is located gives protection to the real property, hence, the owner must support the government of that place.
· This is a principle followed in fixing the situs of taxation of a property. This means that the property is taxable in the State where it has its actual situs, specifically in the place where it is located, even though the owner resides in another jurisdiction.
· With respect to property taxes, real property is subject to taxation in the State where it is located and taxable only there. Lex rei sitae has also been adopted for tangible personal property under Article 16 of the Civil Code. A different rule applies to intangible personal property, specifically, mobilia sequuntur personam.
Situs of tangible personal property
· It is taxable in the State where it has actual situs although the owner resides in another jurisdiction.
· As stated above, lex rei sitae has also been adopted for tangible personal property under Article 16 of the Civil Code.
Situs of taxation of intangible personal property
· General rule: Situs is the domicile of the owner pursuant to the principle of mobilia sequuntur personam. This rule is based on the fact that such property does not admit of any actual location and that such property receives the protection and benefits of the law where they are located.
1. When it is inconsistent with the express provisions of the statute
2. When the property has acquired a business situs in another jurisdiction
· This Latin maxim literally means that the property follows the person. Thus, the place where the owner is found is the situs of taxation under the rule that movables follow the person. This is generally where the owner resides.
· In taxation, this principle is applied to intangible personal property the situs of which is fixed by the domicile of the owner. The reason is that this type of property rarely admits of actual location.
· However, there are two exceptions to the rule. One is when it is inconsistent with the express provisions of a statute. Two, when the interests of justice demand that it should not be applied, i.e. where the property has in fact a situs elsewhere.
Wells Fargo v. Collector, 70 Phil 325
This case involves the collection of inheritance taxes on shares of stock issued by the Benguet Consolidated Mining Corporation and owned by Lillian Eye. Said shares were already subjected to inheritance taxes in California and are now being taxed by Philippine authorities.
Originally, the settled law in the United States is that intangibles have only one situs for the purpose of inheritance tax – the domicile of the decedent at the time of death. But this rule has, of late, been relaxed. The maxim mobilia sequuntur personam, upon which the rules rests, has been decried as a mere fiction of law having its origin in considerations of general convenience and public policy and cannot be applied to limit or control the right of the State to tax property within its jurisdiction. It must yield to established fact of legal ownership, actual presence and control elsewhere, and cannot be applied if to do so would result in inescapable and patent injustice.
The relaxation of the original rule rests on either of two fundamental considerations:
1. Upon the recognition of the inherent power of each government to tax persons, properties and rights within its jurisdiction and enjoying the protection of its laws; or
2. Upon the principle that as to intangibles, a single location in space is hardly possible, considering the multiple, distinct relationships which may be entered into with respect thereto.
The actual situs of the shares of stock is in the Philippines, the corporation being domiciled therein. And besides, the certificates of stock have remained in this country up to the time when the deceased died in California, and they were in the possession of the secretary of the Benguet Corporation. The secretary had the right to vote, collect dividends, among others. For all practical purposes, the secretary had legal title to the certificates of stock held in trust for Eye. Eye extended in the Philippines her activities re: her intangible personal property so as to avail herself of the protection and benefits of the Philippine laws.
Collector v. De Lara, 102 Phil 813
· The Supreme Court did not subject to estate and inheritance taxes the shares of stock issued by Philippine corporations which were left by a non-resident alien after his death. Considering that he is a resident of a foreign country, his estate is entitled to exemption from inheritance tax on the intangible personal property found in the Philippines. This exemption is granted to non-residents to reduce the burden of multiple taxation, which otherwise would subject a decedent’s intangible personal property to the inheritance tax both in his place of residence and domicile and the place where those properties are found.
· This is, therefore, an exception to the decision of the Supreme Court in Wells Fargo v. Collector. This has since been incorporated in Section 104 of the NIRC.
Theories re: situs of income tax
1. Domicilliary theory
The location where the income earner resides is the situs of taxation. This is where he is given protection, hence, he must support it.
2. Nationality theory
The country of citizenship is the situs of taxation. This is so because a citizen is given protection by his country no matter where he is found or no matter where he earns his income.
3. Source law
The country which is the source of the income or where the activity that produced the income is the situs of taxation.
Situs of income tax in the Philippines
· The situs is where the income is derived.
· The source of an income is the property, activity or service that produced the income. For the source of income to be considered as coming from the Philippines, it is sufficient that income is derived from an activity within the Philippines. In BOAC’s cases, the sale of tickets in the Philippines is the activity that produces the income. The tickets exchanged hands here and payments for fares were also made in the Philippines. The flow of wealth proceeded from and occurred in the Philippine territory, enjoying the protection accorded by the Philippine government; in consideration of such protection, the flow of wealth should share the burden of supporting the government.
The absence of flight operations to and from the Philippines is not determinative of the source of income or the situs of income taxation. The test of taxability is the source of the income and the source is that activity which produced the income. Even if the tickets sold covered the transport of passengers and cargo to and from foreign cities, it cannot alter the fact that income from the sale of the tickets was derived from the Philippines. The word “source” conveys one essential idea, that of origin, and the origin of the income is here in the Philippines. [Commissioner v. BOAC, 149 SCRA 395]
· Situs of tax on interest income is the residence of the borrower who pays the interest, irrespective of the place where the obligation was contracted. If the borrower is a resident of the Philippines, the interest payment paid by him can have no other source than within the Philippines.
Multiplicity of situs
· Multiplicity of situs, or the taxation of the same income or intangible subject in several taxing jurisdictions, arises from various factors:
1. The variance in the concept of domicile for tax purposes;
2. Multiple distinct relationships that may arise with respect to intangible personal property; or
3. The use to which the property may have been devoted all of which may receive the protection of the laws of jurisdictions other than the domicile of the owner thereto.
· The remedy to avoid or reduce the consequent burden in case of multiplicity of situs is either to:
1. Provide exemptions or allowance of deduction or tax credit for foreign taxes; or
2. Enter into tax treaties with other States.
Double taxation in the strict sense v. double taxation in the broad sense
· In its strict sense, referred to as direct duplicate taxation, double taxation means:
1. taxing twice;
2. by the same taxing authority;
3. within the same jurisdiction or taxing district;
4. for the same purpose;
5. in the same year or taxing period;
6. some of the property in the territory.
· In its broad sense, referred to as indirect double taxation, double taxation is taxation other than direct duplicate taxation. It extends to all cases in which there is a burden of two or more impositions.
Constitutionality of double taxation
· Unlike the United States Constitution, our Constitution does not prohibit double taxation.
· However, while it is not forbidden, it is something not favored. Such taxation should, whenever possible, be avoided and prevented.
· In addition, where there is direct double taxation, there may be a violation of the constitutional precepts of equal protection and uniformity in taxation.
· The argument against double taxation may not be invoked where one tax is imposed by the State and the other is imposed by the city, it being widely recognized that there is nothing inherently obnoxious in the requirement that license fees or taxes be exacted with respect to the same occupation, calling, or activity by both the State and a political subdivision thereof. And where the statute or ordinance in questions applies equally to all persons, firms and corporations placed in a similar situation, there is no infringement of the rule on equality. [City of Baguio v. De Leon, 25 SCRA 938]
Villanueva v. City of Iloilo, 265 SCRA 528
· An ordinance imposing a municipal tax on tenement houses was challenged because the owners already pay real estate taxes and also income taxes under the NIRC. The Supreme Court held that there was no double taxation. The same tax may be imposed by the National Government as well as the local government. There is nothing inherently obnoxious in the exaction of license fees or taxes with respect to the same occupation, calling, or activity by both the State and a political subdivision thereof. Further, a license tax may be levied upon a business or occupation although the land used in connection therewith is subject to property tax.
· In order to constitute double taxation in the objectionable or prohibited sense:
1. the same property must be taxed twice when it should be taxed once;
2. both taxes must be imposed on the same property or subject matter;
3. for the same purpose;
4. by the same State, Government, or taxing authority;
5. within the same jurisdiction or taxing district;
6. during the same taxing period; and
7. of the same kind or character of tax.
· At any rate, there is no constitutional prohibition against double taxation in the Philippines. It is something not favored but is permissible, provided that some other constitutional requirement is not thereby violated.
Means of Avoiding or Minimizing the Burden of Taxation
Six basic forms of escape from taxation
Note: With the exception of evasion, all are legal means of escape.
· Shifting is the transfer of the burden of a tax by the original payer or the one on whom the tax was assessed or imposed to someone else.
· It should be borne in mind that what is transferred is not the payment of the tax but the burden of the tax.
Taxes that can be shifted
· Only indirect taxes may be shifted; direct taxes cannot be shifted.
Ways of shifting the tax burden
1. Forward shifting
When the burden of the tax is transferred from a factor of production through factors of distribution until it finally settles on the ultimate purchaser or consumer.
Example: Manufacturer or producer may shift tax assessed to wholesaler, who in turn shifts it to the retailer, who also shifts it to the final purchaser or consumer.
2. Backward shifting
When the burden of the tax is transferred from the consumer or purchaser through the factors of distribution to the factor of production.
Example: Consumer or purchaser may shift tax imposed on him to retailer by purchasing only after the price is reduced, and from the latter to the wholesaler, and finally to the manufacturer or producer.
3. Onward shifting
When the tax is shifted two or more times either forward or backward.
Thus, a transfer from the seller to the purchaser involves one shift; from the producer to the wholesaler, then to retailer, we have two shifts; and if the tax is transferred again to the purchaser by the retailer, we have three shifts in all.
Impact and incidence of taxation
· Impact of taxation is the point on which a tax is originally imposed. In so far as the law is concerned, the taxpayer is the person who must pay the tax to the government. He is also termed as the statutory taxpayer – the one on whom the tax is formally assessed. He is the subject of the tax.
· Incidence of taxation is that point on which the tax burden finally rests or settle down. It takes place when shifting has been effected from the statutory taxpayer to another.
· The statutory taxpayer is the person required by law to pay the tax or the one on whom the tax is formally assessed. In short, he or she is the subject of the tax.
· In direct taxes, the statutory taxpayer is the one who shoulders the burden of the tax while in indirect taxes, the statutory taxpayer is the one who pay the tax to the government but the burden can be passed to another person or entity.
Relationship between impact, shifting, and incidence of a tax
· The impact is the initial phenomenon, the shifting is the intermediate process, and the incidence is the result. Thus, the impact in a sales tax (i.e. VAT) is on the seller (manufacturer) who shifts the burden to the customer who finally bears the incidence of the tax.
· Impact is the imposition of the tax; shifting is the transfer of the tax; while incidence is the setting or coming to rest of the tax.
· Tax evasion is the use by the taxpayer of illegal or fraudulent means to defeat or lessen the payment of a tax. It is also known as “tax dodging.” It is punishable by law.
· Tax evasion is a term that connotes fraud through the use of pretenses or forbidden devices to lessen or defeat taxes. [Yutivo v. Court of Tax Appeals, 1 SCRA 160]
· Example: Deliberate failure to report a taxable income or property; deliberate reduction of income that has been received.
Elements of tax evasion
· Tax evasion connotes the integration of three factors:
1. The end to be achieved. Example: the payment of less than that known by the taxpayer to be legally due, or in paying no tax when such is due.
2. An accompanying state of mind described as being “evil,” “in bad faith,” “willful” or “deliberate and not accidental.”
3. A course of action (or failure of action) which is unlawful.
Evidence to prove evasion
· Since fraud is a state of mind, it need not be proved by direct evidence but may be proved from the circumstances of the case.
· In Republic v. Gonzales [13 SCRA 633], the Supreme Court affirmed the assessment of a deficiency tax against Gonzales, a private concessionaire engaged in the manufacturer of furniture inside the Clark Air Base, for underdeclaration of his income. SC held that the failure of the taxpayer to declare for taxation purposes his true and actual income derived from his business for two (2) consecutive years is an indication of his fraudulent intent to cheat the government if its due taxes.
· Tax avoidance is the exploitation by the taxpayer of legally permissible alternative tax rates or methods of assessing taxable property or income in order to avoid or reduce tax liability. It is politely called “tax minimization” and is not punishable by law.
· In Delphers Traders Corp. v. Intermediate Appellate Court [157 SCRA 349], the Supreme Court upheld the estate planning scheme resorted to by the Pacheco family in converting their property to shares of stock in a corporation which they themselves owned and controlled. By virtue of the deed of exchange, the Pachecho co-owners saved on inheritance taxes. The Supreme Court said the records do not point to anything wrong and objectionable about this estate planning scheme resorted to. The legal right of the taxpayer to decreased the amount of what otherwise could be his taxes or altogether avoid them by means which the law permits cannot be doubted.
· It is the grant of immunity to particular persons or corporations or to persons or corporations of a particular class from a tax which persons and corporations generally within the same state or taxing district are obliged to pay. It is an immunity or privilege; it is freedom from a financial charge or burden to which others are subjected.
· Exemption is allowed only if there is a clear provision therefor.
· It is not necessarily discriminatory as long as there is a reasonable foundation or rational basis.
Rationale for granting tax exemptions
· Its avowed purpose is some public benefit or interest which the lawmaking body considers sufficient to offset the monetary loss entailed in the grant of the exemption.
· The theory behind the grant of tax exemptions is that such act will benefit the body of the people. It is not based on the idea of lessening the burden of the individual owners of property.
Grounds for granting tax exemptions
1. May be based on contract. In such a case, the public which is represented by the government is supposed to receive a full equivalent therefor, i.e. charter of a corporation.
2. May be based on some ground of public policy, i.e., to encourage new industries or to foster charitable institutions. Here, the government need not receive any consideration in return for the tax exemption.
3. May be based on grounds of reciprocity or to lessen the rigors of international double or multiple taxation
Note: Equity is not a ground for tax exemption. Exemption is allowed only if there is a clear provision therefor.
Nature of tax exemption
1. It is a mere personal privilege of the grantee.
2. It is generally revocable by the government unless the exemption is founded on a contract which is protected from impairment.
3. It implies a waiver on the part of the government of its right to collect what otherwise would be due to it, and so is prejudicial thereto.
4. It is not necessarily discriminatory so long as the exemption has a reasonable foundation or rational basis.
Kinds of tax exemption according to manner of creation
1. Express or affirmative exemption
When certain persons, property or transactions are, by express provision, exempted from all or certain taxes, either entirely or in part.
2. Implied exemption or exemption by omission
When a tax is levied on certain classes of persons, properties, or transactions without mentioning the other classes.
Every tax statute makes exemptions because of omissions.
Kinds of tax exemptions according to scope or extent
When certain persons, property or transactions are exempted, expressly or implied, from all taxes.
When certain persons, property or transactions are exempted, expressly or implied, from certain taxes, either entirely or in part.
Does provision in a statute granting exemption from “all taxes” include indirect taxes?
· NO. As a general rule, indirect taxes are not included in the grant of such exemption unless it is expressly stated.
Nature of power to grant tax exemption
1. National government
The power to grant tax exemptions is an attribute of sovereignty for the power to prescribe who or what persons or property shall be taxed implies the power to prescribe who or what persons or property shall not be taxed.
It is inherent in the exercise of the power to tax that the sovereign state be free to select the subjects of taxation and to grant exemptions therefrom.
Unless restricted by the Constitution, the legislative power to exempt is as broad as its power to tax.
2. Local governments
Municipal corporations are clothed with no inherent power to tax or to grant tax exemptions. But the moment the power to impose a particular tax is granted, they also have the power to grant exemption therefrom unless forbidden by some provision of the Constitution or the law.
The legislature may delegate its power to grant tax exemptions to the same extent that it may exercise the power to exempt.
Basco v. PAGCOR (196 SCRA 52): The power to tax municipal corporations must always yield to a legislative act which is superior, having been passed by the State itself. Municipal corporations are mere creatures of Congress which has the power to create and abolish municipal corporations due to its general legislative powers. If Congress can grant the power to tax, it can also provide for exemptions or even take back the power.
· In a compromise agreement between the Philippine Government, represented by the PCGG, and the Marcos heirs, the PCGG granted tax exemptions to the assets which will be apportioned to the Marcos heirs. The Supreme Court ruled that the PCGG has absolutely no power to grant tax exemptions, even under the cover of its authority to compromise ill gotten wealth cases. The grant of tax exemptions is the exclusive prerogative of Congress.
· In fact, the Supreme Court even stated that Congress itself cannot grant tax exemptions in the case at bar because it will violate the equal protection clause of the Constitution.
Interpretation of laws granting tax exemptions
· General rule
In the construction of tax statutes, exemptions are not favored and are construed strictissimi juris against the taxpayer. The fundamental theory is that all taxable property should bear its share in the cost and expense of the government.
Taxation is the rule and exemption is the exemption.
He who claims exemption must be able to justify his claim or right thereto by a grant express in terms “too plain to be mistaken and too categorical to be misinterpreted.” If not expressly mentioned in the law, it must be at least within its purview by clear legislative intent.
1. When the law itself expressly provides for a liberal construction thereof.
2. In cases of exemptions granted to religious, charitable and educational institutions or to the government or its agencies or to public property because the general rule is that they are exempt from tax.
· Petitioner cannot invoke the rule on stritissimi juris with respect to the interpretation of statutes granting tax exemptions to the NPC. The rule on strict interpretation does not apply in the case of exemptions in favor of a political subdivision or instrumentality of the government. [Maceda v. Macaraig]
Davao Gulf v. Commissioner, 293 SCRA 76 (1998)
· A tax cannot be imposed unless it is supported by the clear and express language of a statute; on the other hand, once the tax is unquestionably imposed, “a claim of exemption from tax payments must be clearly shown and based on language in the law too plain to be mistaken.” Since the partial refund authorized under Section 5, RA 1435, is in the nature of a tax exemption, it must be construed strictissimi juris against the grantee. Hence, petitioner’s claim of refund on the basis of the specific taxes it actually paid must expressly be granted in a statute stated in a language too clear to be mistaken.
Tax remission or tax condonation
· The word “remit” means to desist or refrain from exacting, inflicting or enforcing something as well as to restore what has already been taken. The remission of taxes due and payable to the exclusion of taxes already collected does not constitute unfair discrimination. Such a set of taxes is a class by itself and the law would be open to attack as class legislation only if all taxpayers belonging to one class were not treated alike. [Juan Luna Subd. V. Sarmiento, 91 Phil 370]
· The condonation of a tax liability is equivalent to and is in the nature of a tax exemption. Thus, it should be sustained only when expressly provided in the law. [Surigao Consolidated Mining v. Commissioner of Internal Revenue, 9 SCRA 728]
· Tax amnesty, being a general pardon or intentional overlooking by the State of its authority to impose penalties on persons otherwise guilty of evasion or violation of a revenue or tax law, partakes of an absolute forgiveness or waiver by the government of its right to collect what otherwise would be due it and, in this sense, prejudicial thereto. It is granted particularly to tax evaders who wish to relent and are willing to reform, thus giving them a chance to do so and thereby become a part of the new society with a clean slate. [Republic v. Intermediate Appellate Court, 196 SCRA 335]
· Like tax exemption, tax amnesty is never favored nor presumed in law. It is granted by statute. The terms of the amnesty must also be construed against the taxpayer and liberally in favor of the government.
· A tax amnesty, being a general pardon or intentional overlooking by the State of its authority to impose penalties on persons otherwise guilty of evasion or violation of a revenue or tax law, partakes of an absolute forgiveness or waiver by the Government of its right to collect what otherwise would be due it and, in this sense, prejudicial thereto, particularly to tax evaders who wish to relent and are willing to reform are given a chance to do so and therefore become a part of the society with a clean slate.
· Like a tax exemption, a tax amnesty is never favored nor presumed in law, and is granted by statute. The terms of the amnesty must be strictly construed against the taxpayer and liberally in favor of the government. Unlike a tax exemption, however, a tax amnesty has limited applicability as to cover a particular taxing period or transaction only.
· There is tax condonation or remission when the State desists or refrains from exacting, inflicting or enforcing something as well as to restore what has already been taken. The condonation of a tax liability is equivalent to and is in the nature of a tax exemption. Thus, it should be sustained only when expressed in the law.
· Tax exemption, on the other hand, is the grant of immunity to particular persons or corporations or to person or corporations of a particular class from a tax which persons and corporations generally within the same state or taxing district are obliged to pay. Tax exemption are not favored and are construed strictissimi juris against the taxpayer.
Sources of tax laws
2. National Internal Revenue Code
3. Tariff and Customs Code
4. Local Government Code (Book II)
5. Local tax ordinances/ City or municipal tax codes
6. Tax treaties and international agreements
7. Special laws
8. Decisions of the Supreme Court and the Court of Tax Appeals
9. Revenue rules and regulations and administrative rulings and opinions
· A tax treaty is one of the sources of our law on taxation. The Philippine Government usually enters into tax treaties in order to avoid or minimize the effects of double taxation. A treaty has the force and effect of law.
Revenue Rules and Regulations and Administrative Rulings and Opinions
Authority to promulgate rules and regulations and rulings and opinions
· The Secretary of Finance, upon recommendation of the Commissioner of Internal Revenue, shall promulgate needful rules and regulations for the effective enforcement of the provisions of the NIRC.
· This is without prejudice to the power of the Commissioner of Internal Revenue to make rulings or opinions in connection with the implementation of the provisions of internal revenue laws, including rulings on the classification of articles for sales tax and similar purposes.
Purpose of rules and regulations
1. To properly enforce and execute the laws
2. To clarify and explain the law
3. To carry into effect the law’s general provisions by providing details of administration and procedure
Requisites for validity of rules and regulations
1. They must not be contrary to law and the Constitution.
2. They must be published in the Official Gazette or a newspaper of general circulation.
Commissioner v. Court of Appeals, 240 SCRA 368
· The authority of the Minister of Finance, in conjunction with the Commissioner of Internal Revenue, to promulgate rules and regulations for the effective enforcement of internal revenue rules cannot be controverted. Neither can it be disputed that such rules and regulations, as well as administrative opinions and rulings, ordinarily should deserve weight and respect by the courts. Much more fundamental than either of the above, however, is that all such issuances must not override, but must remain consistent with, the law they seek to apply and implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law.
La Suerte v. Court of Tax Appeals, 134 SCRA 29
· When an administrative agency renders an opinion by means of a circular or memorandum, it merely interprets existing law and no publication is therefore necessary for its validity. Construction by an executive branch of the government of a particular law, although not binding upon courts, must be given weight as the construction came from the branch of the government which is called upon to implement the law.
Effectivity of revenue rules and regulations
· Revenue Memorandum Circular 20-86 was issued to govern the drafting, issuance, and implementation of revenue tax issuances, including:
1. Revenue Regulations;
2. Revenue Audit Memorandum Orders; and
3. Revenue Memorandum Circulars and Revenue Memorandum Orders.
· Except when the law otherwise expressly provides, the aforesaid revenue tax issuances shall not begin to be operative until after due notice thereof may be fairly assumed.
· Due notice of the said issuances may be fairly presumed only after the following procedures have been taken:
1. Copies of the tax issuance have been sent through registered mail to the following business and professional organizations:
a. Philippine Institute of Certified Public Accountants;
b. Integrated Bar of the Philippines;
c. Philippine Chamber of Commerce and Industry;
d. American Chamber of Commerce;
e. Federation of Filipino-Chinese Chamber of Commerce; and
f. Japanese Chamber of Commerce and Industry in the Philippines.
2. However, other persons or entities may request a copy of the said issuances.
3. The Bureau of Internal Revenue shall issue a press release covering the highlights and features of the new tax issuance in any newspaper of general circulation.
4. Effectivity date for enforcement of the new issuance shall take place thirty (30) days from the date the issuance has been sent to the above-enumerated organizations.
· Administrative rulings, known as BIR rulings, are the less general interpretation of tax laws being issued from time to time by the Commissioner of Internal Revenue. They are usually rendered on request of taxpayers to clarify certain provisions of a tax law. These rulings may be revoked by the Secretary of Finance if the latter finds them not in accordance with law.
· The Commissioner may revoke, repeal or abrogate the acts or previous rulings of his predecessors in office because the construction of the statute by those administering it is not binding on their successors if, thereafter, such successors are satisfied that a different construction of the law should be given.
· Rulings in the form of opinions are also given by the Secretary of Justice who is the chief legal officer of the Government.
Tuazon v. Court of Appeals, 212 SCRA 739
· If the resolution is to be considered as a tax ordinance, it must be shown to have been enacted in accordance with the requirements of the Local Government Code. These would include the holding of a public hearing on the measure and its subsequent approval by the Secretary of Finance, in addition to the usual requisites for publication of ordinances in general.
Interpretation and Application of Tax Laws
Nature of internal revenue laws
1. Internal revenue laws are not political in nature.
2. Tax laws are civil and not penal in nature.
Not political in nature
· Internal revenue laws are not political in nature. They are deemed to be the laws of the occupied territory and not of the occupying enemy.
· Thus, our tax laws continued in force during the Japanese occupation.
· Hilado v. Collector, 100 Phil 288: It is well known that our internal revenue laws are not political in nature and, as such, continued in force during the period of enemy occupation and in effect were actually enforced by the occupation government. Income tax returns that were filed during that period and income tax payments made were considered valid and legal. Such tax laws are deemed to be the laws of the occupied territory and not of the occupying enemy.
Civil, not penal, in nature
· Tax laws are civil and not penal in nature, although there are penalties provided for their violation.
· The purpose of tax laws in imposing penalties for delinquencies is to compel the timely payment of taxes or to punish evasion or neglect of duty in respect thereof.
· Republic v. Oasan, 99 Phil 934: The war profits tax is not subject to the prohibition on ex post facto laws as the latter applies only to criminal or penal matters. Tax laws are civil in nature.
Construction of tax laws
1. Rule when legislative intent is clear
Tax statutes are to receive a reasonable construction with a view to carrying out their purpose and intent.
They should not be construed as to permit the taxpayer easily to evade the payment of taxes.
2. Rule when there is doubt
No person or property is subject to taxation unless within the terms or plain import of a taxing statute. In every case of doubt, tax statutes are construed strictly against the government and liberally in favor of the taxpayer.
Taxes, being burdens, are not to be presumed beyond what the statute expressly and clearly declares.
3. Provisions granting tax exemptions
Such provisions are construed strictly against the taxpayer claiming tax exemption.
Application of tax laws
· General rule: Tax laws are prospective in operation because the nature and amount of the tax could not be foreseen and understood by the taxpayer at the time the transactions which the law seeks to tax was completed.
· Exception: While it is not favored, a statute may nevertheless operate retroactively provided it is expressly declared or is clearly the legislative intent. But a tax law should not be given retroactive application when it would be harsh and oppressive.
· Directory provisions are those designed merely for the information or direction of officers or to secure methodical and systematic modes of proceedings.
· Mandatory provisions are those intended for the security of the citizens or which are designed to ensure equality of taxation or certainty as to the nature and amount of each person’s tax.
· The omission to follow mandatory provisions renders invalid the act or proceeding to which it relates while the omission to follow directory provisions does not involve such consequence. [Roxas v. Rafferty, 37 Phil 958]