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PHILIPPINES THE OF REPUBLIC
Tax Appeals of Court
CITY QUEZON
ENBANC MINING TAGANITO CORPORATION, N0.1039 EB CTA
7884) NO. CASE (CTA
Petitioner,
-versus-
esent: Pr
J,P , ROSARIO DEL JR., CASTANEDA, BAUTISTA,
, UY
CASANOVA, , FABON-VICTORINO , MINDARO-GRULLA and COTANGCO-MANALASTAS,
. JJ , RINGPIS-LIBAN INTERNAL OF COMMISSIONER REVENUE,
Respondent.
..... ·L~ Promulgated:
. ~ &..s--ec. , tJ/,r',,r x~ - _ 2014 01 JUN - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X- DECISION PJ.: ROSARIO, DEL
This is a Petition for Review filed by Taganito Mining Corporation on
and the 2012 appealing the Decision dated November 13, 2013 July 22,
then First the by respectively, rendered 2013 5, June dated Resolution
Division
1
First Division Special and the
2
this Court in CTA Case No. of
Internal of Commissioner vs. Mining Corporation "Taganito 7884 entitled
which denied Taganito Mining Corporation's claim for refund or Revenue,"
of a tax credit certificate representing the un-refunded portion of issuance
capital goods from of excess input value-added tax (VAT) on its importation
~ SEVEN of in the total amount 2007 to December 31, 2007 1, January
1 Acosta as Chairperson, Associate Justice D. Justice Emesto Presiding of Composed Fabon-Victorino. R. and Associate Justice Esperanza Uy P. Erlinda 2 as Acting Chairperson and Associate Uy P. Associate Justice Erlinda of Composed Justice Esperanza R. Fabon-Victorino.
Internal Revenueof Taganito Mining Corporation vs. Commissioner (CTA Case No. 7884) 1039 NO. CTA EB of20 2 Page FIVE THOUSAND SEVENTY-TWO HUNDRED FIVE MILLION (Php7,572,550.29). 29/100 AND PESOS FIFTY HUNDRED FACTS THE Petitioner is a duly organized and existing domestic corporation, with Street, Mills (now BMMC) Building, Dela Rosa Solid address at 4th Floor, Legaspi Village, Makati City. 3 of primarily engaged in the business is It exploring, extracting, mining, selling, and exporting precious metals and all the with registered is It by-products. their and metals, ores, of kinds as indicated in the Certificate (SEC), Securities and Exchange Commission
- 4, Registration No. 138682 issued on March of 4 As a VAT-registered Registration (BIR Form No. 2303) No. of entity, it was issued a Certificate 8RC0000017494. OCN 5 Internal Revenue of the Bureau of the Commissioner is Respondent of (BIR), with power and authority, among others, to grant claims for refund holds office at the BIR National Office Building, She internal revenue taxes. BIR Road, Diliman, Quezon City. 6 it 2007, to December 31, 2007 Petitioner claims that from January 1, Php4,248,232,289.08. to amounting sales export zero-rated generated During the same period, it incurred and paid input VAT on its domestic capital and non- of taxable goods and services and importation of purchases capital goods amounting to Php22,795,033.33 , detailed as follows: 7 Input VAT Total on VAT Input on VAT Input Period Covered Taxes Domestic Domestic and Purchases and Purchases of Importation of Importation Non-Capital Goods Capital and Goods Taxable Services 4,348,049.79 p 555,858.08 p 3,792,191.71 p 07 /311 01101107-
.?~. 79~19~3_ 22, p 13,633,930.40 p 9,161,102.93 p TOTAL
- p. Division Docket, , oflssues Facts and Simplification of 1, Joint Stipulation Par. 3 4
- pp. 49 to , Jd 2, Par. 5
- p. , Jd 3, Par.
- p. Rollo, 2012, , 13 Decision promulgated on November 6 to 36. 35 Rollo, pp. , Jd. 7 ()4)
Internal Revenueof Taganito Mining Corporation vs. Commissioner (CTA Case No. 7884) 1039 NO. CTA EB of20 Page 4 the to relating Php7,572,550.29 of balance remaining the to respect disallowed deferred input VAT on capital goods. 13 for Motion Court granted petitioner's the 12, 2010, February On of claim approved the of extent the Petition to of Withdrawal Partial Php15,023,736.12 and the disallowed input tax ofPhp198,746.93. 14 April 20, 2010, petitioner filed a Motion to Clarify the Issues. On 15 In a Resolution 16 dated June 18, 2010, the Court in Division clarified that the entitled is or not petitioner "whether remaining issue for its resolution was ofPhp7,572,550.29". the amount of to the refund Meanwhile, on May 13, 2010, petitioner re-submitted its application tax credit certificate with the BIR and requested for the of for issuance May 13, 2010. of the deferred portion which is due as of refund 17 both parties presented their respective ensued during which Trial December 12, 2011, the case was On testimonial and documentary evidence. submitted for decision after respondent filed her Memorandum on October
- 2, 25, 2011 and petitioner filed its Memorandum on December 18 2012, the Court in Division issued the assailed 13, November On Decision 19 dismissing the petition for review. Reconsideration for Motion a filed petitioner Aggrieved, 20 on in Division in December 10, 2012 which was, however, denied by the Court the assailed Resolution 2 1
- 5, dated June July 22, 2013, petitioner filed the present Petition for Review with On reverse the assailed En Bane praying that the Court En Bane the Court the Court in Division. Petitioner likewise prays of Decision and Resolution render judgment declaring petitioner to be entitled to En Bane that the Court (r'\FIV MILLION SEVEN of amount the in credit refund/tax the to 41. 40 pp. Id, Rollo, 13
- p. Id, Rollo, 14 15
- pp. 118 to Division Docket, 16 pp. 125 to 127. Division Docket, pp. 428 to 429. Division Docket, Exhibit KK, 17 !d. 18 pp. 34 to 53. Rollo, 19 20 . 691 pp. 663 to Division Docket, pp. 699 to 721. Division Docket, 2 1
Internal Revenueof Commissioner vs. Taganito Mining Corporation (CTA Case No. 7884) 1039 NO. CTA EB of20 5 Page FIFTY HUNDRED FIVE THOUSAND SEVENTY-TWO HUNDRED un-refunded the representing (PHP7,572,550.29), PESOS 29/100 AND of excess input VAT paid by the petitioner on its importation of portion order and 2007; December 31, to 2007 1, January from goods capital respondent to issue to petitioner the corresponding tax credit certificate or to of refund the aforesaid amount; or in the alternative, to rule that the amount be can petitioner of VAT input excess un-refunded and un-amortized its accumulated input VAT. of reverted as part Resolution a issued Bane En Court the 2013, 22, August On 22 ordering respondent to file her comment on the Petition for Review within 2013, September 26, On the resolution. of days from the receipt (10) ten respondent filed her Comment/Opposition (Re: Petition for Review). In a Resolution 23 gave due En Bane the Court 2013, dated October 14, their file to ordered the parties Review and for Petition the course to days from notice. (30) respective memoranda within thirty respondent's Manifestation of With the filing 24 2013 5, on November the to comment/opposition her adopting is respondent the that stating as her memorandum in the 2013 petition for review filed on September 26, its file to failure petitioner's considering and case; above-titled memorandum, 25 for petition present the submitted Bane En Court the decision through its Resolution 26
- issued on February 12, ERRORS OF ASSIGNMENT errors (I and II) and of Petitioner submits the following assignment raises the following issue (III): The Honorable Court in Division committed reversible error in I. 00% ruling that input VAT being claimed for refund by a 1 zero-rated taxpayer on depreciable goods amounting to more amortization.{11 Million is subject to P1 than 22 pp. 82 to 83. Rollo, 23 to 91. 90 pp. Rollo, p. 92. Rollo, 24 25 unpaginated. Rollo, Records Verification dated January 23, 2014, 26 to 172. 171 pp. Rollo,
Internal Revenueof Commissioner vs. Taganito Mining Corporation (CTA Case No. 7884) 1039 NO. CTA EB of20 Page 7 -registered person can apply the input VAT on capital amortization. A VAT the capital goods, as credit of acquisition of the cost of goods, regardless a tax credit of may also apply for the issuance It against its output VAT. input VAT paid on capital goods of the entire amount of certificate or refund to the extent that such input taxes have not been applied against output VAT. a tax credit certificate or refund may be made of The application for issuance the when quarter taxable the of close the after years (2) two within 28 e.d^ h or pure ase was rna^..^ ImportatiOn The foregoing rule, however, was modified when the 1997 NIRC was Under 2005. 1, amended by RA No. 9337 which took effect on November 1997 NIRC, as amended by RA No. 9337, a VAT- the of 110 Section registered taxpayer is required to amortize its input VAT paid on capital component VAT excluding the acquisition cost, aggregate the if goods does not provide that a VAT-registered It Php1,000,000.00. thereof, exceeds of a tax credit certificate or refund of taxpayer may apply for the issuance the input VAT paid on capital goods. RA No. of 8 Section the 1997 NIRC, as amended by of 110 Section 9337 (RA) states: same Code, as amended, ofthe 110 Section 8. TION "SEC is hereby further amended to read as follows: Credits.- Tax 110. SEC.
- Creditable input Tax. (A) Any input tax evidenced by a VAT invoice or 1) ( on hereof 113 Section official receipt issued in accordance with the following transactions shall be creditable against the output tax: goods: of Purchase or importation (a) or For sale; (1) of For conversion into or intended to form part (ii) a finished product for sale including packaging materials; or business; or of For use as supplies in the course (iii) of sale in the supplied materials as For use (iv) _CJ!_ or service; the 1997 NIRC, prior to its amendment by RA No. 9337. of 112 Section 28
Internal Revenue of Commissioner vs. Taganito Mining Corporation (CTA Case No. 7884) 1039 NO. EB CTA of20 8 Page For use in trade or business for which deduction (v) for depreciation or amortization is allowed under this Code. services on which a value-added of Purchase (b) tax has actually been paid. or purchase domestic on tax input The (2) -registered person goods or properties by a VAT of importation shall be creditable: sale of To the purchaser upon consummation (a) goods or properties; and of and on importation e- the valu of To the importer upon payment (b) the of the goods from the custody of lease re added tax prior to the Customs. of Bureau or purchased tax on goods input the That Provided, for business or trade use in for month calendar in a imported this Code, under allowed is depreciation for which deduction the and acquisition of evenly over the month spread shall be the aggregate acquisition if succeeding months (59) fifty-nine thereof, component such goods, excluding the VAT for cost Provided, however, (Pl,OOO,OOO.OO): million pesos One exceeds than less is the capital good of the estimated useful life if That the then purposes, depreciation for used as years, (5) five period: shorter a such over spread be shall VAT input services, lease or of purchase of That in the case Provided, finally, the to creditable be shall tax input the properties, of use the compensation, of purchaser, lessee or licensee upon payment rental, royalty or fee. xxx." XXX Xxx (Emphasis supplied) by the 1997 NIRC, as amended of the other hand, Section 112 (A) On No. 9337, states: ofRA 10 Section same Code, as amended, ofthe 112 Section 10. "SECTION follows: as is hereby further amended to read
. - Tax Input of Credits Tax or 112. Refunds SEC. Any - Zero-Rated or Effectively Zero-Rated Sales. (A) or zero-rated are sales whose person, -registered VAT the close after may, within two (2) years zero-rated effectively made, apply for were when the sales quarter the taxable of creditable of refund or credit certificate tax a of the issuance except sales, such to attributable paid or due tax input the extent that such input tax has not to transitional input tax, _r:f_ That in the Provided, however, been applied against output tax:
Internal Revenueof Taganito Mining Corporation vs. Commissioner (CTA Case No. 7884) 1039 NO. EB CTA of20 10 Page a tax credit of do not apply to claims for refund or applications for issuance certificate. Revenue Regulations of Sections 4.110-3 and 4.110-4 of A perusal the 1997 NIRC, as of (RR) No. 16-05, implementing the VAT provisions input of amended by RA No. 9337, reveals that, insofar as the amortization is no distinction between there VAT paid on capital goods is concerned, of subject VAT input and VAT output against creditable VAT input the certificate. credit tax a of issuance for application or refund for a claim Where the law "Ubi lex non distinguit, nee nos distinguere debemus. distinguish." does not distinguish, we ought not to 29 Thus, the law being input VAT necessarily applies to of silent, the same rule on amortization claims for refund. Internal of. Commissioner vs Inc. Gas, Pilipinas Total Petitioner cites Revenue 30 refund. tax a claiming for requirements the enumerating in input VAT on capital goods is not of Petitioner argues that amortization input VAT of the requirements in a claim for refund of included as one attributable to zero-rated sales. input VAT paid on capital goods of true that amortization is While it not among the requirements for claiming a tax refund, it is nevertheless a is -registered taxpayer engaged in that must be complied with by a VAT rule of zero-rated sales when claiming input VAT arising from its purchases capital goods where its acquisition cost, excluding the VAT component Php1,000,000.00. thereof, exceeds Court in Division that agrees with the En Bane Court the Thus, Php8,850, 141.45 paid on its capital goods with of petitioner's input VAT shall be spread over sixty (60) Phpl,OOO,OOO.OO acquisition cost that exceeds of amount the in VAT input amortized the only and months; The 2007. December 31, of Php1,277,591.16 is creditable or refundable as quotes with approval the exhaustive discussion by the Court En Bane Court Division on this matter in the assailed Resolution: in 1997, as amended, of the NIRC of (A) 112 Section that "Note the input tax allowable as i.e., creditable input tax due or paid, of speaks _c;l_ the same of (A) 110 Section to tax credit in a taxable quarter pursuant 29 Central Drug Luzon Corporation, G.R. No. vs. Internal Revenue of Commissioner
- 159647, April 15, 3 20, 2011. September 7550, CTA Case No.°
Internal Revenue of Commissioner s. ganito Mining Corporation v Ta (CTA Case No. 7884) 1039 NO. CTA EB of20 11 Page Code including the amortized input tax on capital goods purchases with 1 million. This is also recognized Php of an aggregate cost in excess 2-07 No. 16-05, as amended by RR Nos. ofRR under Section 4.110- which provides: 4-07, and on Depreciable Tax Input for Claim 4.110-3. SEC. x Xx Goods. - a capital good is five (5) of the estimated useful life If (a) The input tax shall be spread evenly over a years or more - months and the claim for input tax credit will (60) sixty of period is good capital the when month calendar the in commence of acquired. The total input taxes on purchases or importations and the quotient 60 by capital goods shall be divided of this type be claimed monthly. to will be the amount a capital good is less than of the estimated useful life If (b) The input tax shall be spread evenly on a years - (5) five of monthly basis by dividing the input tax by the actual number a capital good. The of months comprising the estimated useful life claim for input tax credit shall commence in the month that the capital goods were acquired. VAT) of Where the aggregate acquisition cost (exclusive the existing or finished depreciable capital goods purchased or of imported during any calendar month does not exceed one million the total input taxes will be allowable as ,000,000.00), (P1 pesos acquisition. of credit against output tax in the month properties refers to goods or properties or goods Capital year and which are 1) e greater than one (lif with estimated useful the Tax Code, of 34(F) Sec. depreciable assets under as treated taxable of used directly or indirectly in the production or sale goods or services. depreciable assets in any of The aggregate acquisition cost VAT, price, excluding the the total calendar month refers to agreed upon for one or more assets acquired and not on the Thus, an calendar month. payments actually made during the more than of asset acquired on installment for an acquisition cost the to subject be will VAT, the excluding ,000,000.00, P monthly the that fact the despite tax input of amortization ,000,000.00. P1 payments/installments may not exceed XXX XXX X XX of cost the is (CIP) progress in Construction not is CIP completed. yet not is which work construction depreciated until the asset is placed in service. Normally, upon reclassified and the reclassified asset is is completion, a CIP item ~ depreciated. capitalized and
Internal Revenueof Commissioner vs. Taganito Mining Corporation (CTA Case No. 7884) 1039 NO. CTA EB of20 13 Page to govt. subjected to Sale 100,000.00 5% final VAT Withholding P400,000.00 for the month Sales Total The following input taxes were passed on by its VAT suppliers: Input tax on taxable goods 12% Input tax on zero-rated sales
- exempt goods of Input tax on sale Input tax on sale to government Input tax on depreciable capital good not attributable to any specific activity (monthly months) 60 amortization for P5,000.
P20.000.
A. The input tax attributable to sales to private entities subj ect to 12%, for the month, shall be computed as follows: ,000.00 P5 12%- Input tax directly attributable to sale subject to the input tax not of Ratable portion directly attributable to any activity: x Taxable sales (12%) Sales Total
X P100,000.
of Amount input tax not directly attributable to any activity
P5,000.00 - P20,000.
Total input tax attributable to sales to private entities P10,000.00 for the month B. The input tax attributable to zero-rated sales for the month shall be computed as follows:
- sale zero-rated to attributable directly tax Input
,000.00 P
the input tax not of Ratable portion directly attributable to any activity: x (0%) Taxable sales Sales Total of Amount input tax not directly attributable to <
Internal Revenue of Commissioner s. Taganito Mining Corporation v (CTA Case No. 7884) 1039 NO. CTA EB of20 14 Page any activity
P5,000.00 - P20,000.00 X P100,000.
Total input tax attributable to zero-rated sales for ,000.00 P8 - the month -exempt sales forVAT to x attributable ta C. The input the month shall be computed as follows: -exempt sales -VAT Input tax directly attributable to
P2,000.
the input tax not of Ratable portion directly attributable to any activity: of Amount x VAT-exempt sales input tax Sales Total X OO. OOO , PlOO
not directly attributable to any activity
OO. OOO, PS P20,000.
P7.000.00 Total input tax attributable to VAT-exempt sales - sales to government to D. The input tax attributable for the month shall be computed as follows: Input tax directly attributable to sale to govt.
P4,000.
the input tax not of Ratable portion directly attributable to any activity: Taxable sales to government Sales Total of Amount X input tax not directly attributable to any activity
,000.00 P5 - P20,000.00 X P100,000.
P9,000.00 Total input tax attributable to sale to gov't. -
Internal Revenueof Commissioner vs. Taganito Mining Corporation (CTA Case No. 7884) 1039 NO. CTA EB of20 16 Page VAT Input Allowable Month hased Purc March April May June July November Total Remaining of Month Estimated of s Month Acquisition Life of Name (^2007) (in mos.) Tax Input Amount er Suppli 567,510.86 63,056.76 60 3,783,405.74 31,528,381.18 of Bureau Customs 60 1,373,615.51 1,446,795.89 of Bureau Customs ,758.93 149 1,247,991.07 Kubota Agro- Industrial Machinery Phils. Inc. 203,116.59 25,389.57 60 ,523,374.44I ,694,786.96 12 ,986,090.28 I ,550,752.37 16 of Bureau Customs ,678.57 176 72,321.43,4 I trade Man Development Corporation 149,464.29 ,258,535.7 1 I Toyota Pasong Tamo, Inc. ,464.29 143 1,207,535.7 1 Toyota Pasong Tamo, Inc. 286,498.03 40,928 .29^60 2,455,697.43 20,489,145. ,945.56 19 3,324.26 60 199,455 .55 1,662,129.60 of Bureau Customs 337,500.00 2,812,500.00 lsuzu Philippines Corporation 235,714.29 71 ,964,285 .I lsuzu Philippines Corporation 47,767.86 9,553.57 60 573 ,214.29 4,776,785. 5,249.90 5,249.90 60 314,994.00 2,624,950.00 of Bureau Customs 1,130,088.80 147,502.36 8,850,141.45 6,178.67 73, of amount the only granted correctly respondent Thus, input VAT of the monthly amortization to 77,59 1.16 pertaining,2 1 Php 1Million for the Php on petitioner's capital goods purchases exceeding 72,550.29 ,5 Php7 of amount remaining The 2007. year unamortized representing ,591.16) 77 ,2 Php1 less (Php8,850,141. input VAT may be claimed by petitioner as input tax credit or as refund (provided it has zero-rated sales to which the said input VAT can be quarter(s)." attributed) in the subsequent Total 630,567. 228,506. 327,426. ,269.81 23 57,321. ,449.80 10 1,277,591. argues that any ruling from this Court subjecting the claim Petitioner taxpayer()"' -registered input VAT on capital goods by a VAT of for refund
Internal Revenueof Commissioner vs. Taganito Mining Corporation (CTA Case No. 7884) 1039 NO. CTA EB of20 17 Page engaged in zero-rated sales to the rule on amortization would amount to a as the 1997 NIRC, of Section 112(A) of the express provision of violation amended, pertaining to prescription. According to petitioner, when a claim on capital goods with an aggregate acquisition cost in excess VAT for input is being subjected to the rule on amortization, then the Php1,000,000.00 of a claim beyond the two-year prescriptive of Court is requiring the filing the 1997 NIRC, as amended. of period under Section 112(A) the 1997 of Section 112 (A) of misunderstands the import Petitioner VAT- "[A]ny the 1997 NIRC, as amended, of Section 112 (A) Under NIRC. registered person, whose sales are zero-rated or effectively zero-rated may,
sales the when quarter taxable the of close the after years within two (2)
of a tax credit certificate or refund of apply for the issuance made, were In .".. sale such to attributable paid or due tax input creditable Mirant Pagbilao Corporation, vs. Internal Revenue of Commissioner 31 the the administrative claim for of Supreme Court emphasized that the filing the from reckoned tax credit certificate should be of refund or issuance
the when not and made were sales the when quarter taxable the of close
viz.: paid, or incurred was VAT input above proviso clearly provides in no uncertain terms that "The unutilized input VAT payments not otherwise used for any internal two years be claimed within must taxpayer revenue tax due the the relevant when quarter the taxable of reckoned from the close whether of VAT regardless input to the pertaining made were sales said tax was paid or not. As the CA aptly puts it, albeit it erroneously period "[P]rescriptive (A), 112 Sec. aforequoted the applied the taxable quarter when the sales were of commences from the close made and not from the time the input VAT was paid nor from the time VAT zero-rated a when Thus, issued". was receipt official the transaction, pertinent the after year VAT a input pays its taxpayer credit tax or refund for to file a claim year only has a taxpayer said would frame reckoning The VAT. input the unutilized creditable of or sales pertinent the when quarter the of end the be always VAT was paid. Be input the when was made, regardless transaction it may, and given that the last creditable input VAT due for the as that September 6, 1996 is the third of period covering the progress billing 1996, any claim for unutilized 30, 1996 ending on September of quarter creditable input VAT refund or tax credit for said quarter prescribed 30, 1996 or, to be precise, on September 30, two years after September on claim for refund or tax credit filed MPC's 1998. Consequently, (Emphases supplied) prescribed." 1999 had already , 10 December Thus, the Court in Division correctly ruled that petitioner is incorrect aggregateD"l the on taxes input of amortization the that interpreting m , 2008. 12 G.R. No. 172129, September 3 1
Internal Revenue of Commissioner vs. ganito Mining Corporation Ta (CTA Case No. 7884) 1039 NO. CTA EB of20 19 Page enforceable. 32 Therefore, the Court cannot resolve petitioner's request for petitioner' s input of the reversion of a ruling on the propriety of issuance VAT. is Petition for Review the foregoing, the of in light WHEREFORE, dated Decision the Accordingly, merit. of lack for DENIED hereby rendered by the 2013 and the Resolution dated June 5, 2012 , 13 November this Court and this Court's Special First Division, of then First Division "Taganito Mining Corporation respectively, in CTA Case No. 7884 entitled Mining Taganito denied which Revenue " Internal of. Commissioner vs certificate credit tax a of issuance or refund for claim Corporation's excess input VAT on its importation of representing the un-refunded portion in the total 2007 to December 31, 2007 1, capital goods from January of SEVENTY-TWO HUNDRED FIVE MILLION SEVEN of amount 29/100 AND PESOS FIFTY HUNDRED FIVE THOUSAND AFFIRMED. are hereby (Php7,572,550.29) ORDERED. SO CONCUR: WE Q I a.A-~-c& C - ~~
Jit. C. CASTANEDA, .mANITO
Associate Justice .UY Justice Presiding
CAES~SANOVA
Associate Justice
G~ l\1~- .. N ~
MINDARO-GRULLA N. CIELITO Associate Justice Constitution. Philippine the 1987 of Section 1, Article VIII 32
Internal Revenue of Taganito Mining Corporation vs. Commissioner A Case No. 7884) 1039 (CT NO. CTA EB of20 20 Page ;/~--./#- ~u COTANGCO-MANALASTAS AMELIA R. · Associate Justice '"', - ~ ~ ~- MA. BELEN M. RINGPIS-LIBAN Associate Justice CERTIFICATION the Constitution, it is hereby of Article VIII of 13 Pursuant to Section in reached were Decision above the in conclusions the that certified the of the opinion of consultation before the case was assigned to the writer En Bane. Court Presiding Justice
