TAKASAGO PHILIPPINES, INC. v. COMMISSIONER OF INTERNAL REVENUE

REP UBUC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY FIRST DIVISION TAKASAGO PHILIP PI NES, C.T.A. CASE NO. 7924 INC., Petit ioner, Members: - versus - ACOSTA, Chairperson UY, and COMMISSION ER OF INTER NAL FASON-VICTORINO, JJ. REVENUE, Promulgated: Responde nt. ----X x- - - - - - - - - - - - - - - - - - - - - RE SO LUTION Fabon-Victorino, J . : For resoluti o n is res pondent 's Motion to Dismiss dated March 23, 20 11, praying for the dismissal of the instant petition for refund of unutili zed inp ut VAT attributable to zero - rated sales for the fou r (4) quarters of taxable year 2007 for want of jurisdiction . Respon dent cla ims t hat petitioner filed its application for refund with Bu rea u of Inte rnal Revenue (BIR) ROO 47, East Makati on Ap ril 14, 2008. Applying the periods provided in Section 1 12 of the NJ RC , as amended, respondent had 120 days or until Au g ust 12, 2008 t o rule on the claim. Counting 30 days/

Resolution C. T.A. Ca se No . 7924 from the receipt of th e adverse decision, or from the lapse of 120 days, petitio ner had unti l Se ptember 11, 2008 to appeal with the Court of Tax Appeal s (CTA). However, the instant Petition was filed only on April 24 , 20 09 or 225 days beyond the 30 -day reglementary pe r iod to appea l prescribed in Section 112 of the NIRC, effectively depriving the Court of jurisdiction justifying the dismissal of the case . Cons idering fu rt her that subject motion is assailing the jurisdiction of th e Cou rt, such defense may be invoked at any stage in the pro cee di ngs . Despite th e opportunity granted, petitioner did not file any comment or regi ster any objection to respondent's motion, hence, this resolution. There is no deny ing that the subject Motion to Dismiss was filed after respond ent 's Answer and soon after petitioner rested its case. Und er Sectio n 1, Ru le 16 of the Revised Rules of Civil Procedure, a mo t io n to dism iss should be filed within the time for j but befo re fili ng the answe r to the complaint or pleading

Resolution C. T.A. Case No. 7924 asserting a claim 1 and where an answer has been filed, the defendant is estopped fro m fili ng a motion to dismiss. 2 The rule is however not absolute. Even after the answer has been filed, a defendant or respondent can still file a motion to dismiss on the fol lowing grounds: (1) lack of jurisdiction, (2) litis pendentia (3) lack of ca use of action, and (4) discovery during trial of evidence th at constitutes a ground for dismissal. 3 Obv iously, the iss ue of belated filing of the petition involves th e jurisdiction of the Court to entertain the same. Th e Suprem e Court in a myria d of cases has invariably ruled that perfection of an appea l within the statutory or reglementary period is not only man datory but also jurisdictional. 1 Therefore, lack of juri sdiction which respo nd ent invokes in his motion to dismiss falls wi th in t he exceptions and therefore may be filed even after th e filing of respo ndent's Answer or after petitioner conclud ed its presen tati on of evi dence. On the timeliness of the instant Petition for Review, the relevan t provi sion is Section 112 of the NIRC, as amended, whic/ reads as follow s: 1 Co vs . Court of Appeals, G.R. No. 147999. February 27, 2004. 2 Phil -Vill e Deve lopmen t vs. Javie r, G.R. No. 147738, December 13, 2 005 . 3 Panganiban vs. Pil1p1nas 91 c ll , G. R. No. 131471. January 22, 2003. 4 Sehwani, In co rp orated vs. In - N-Out Burger, Inc., G.R . No . 171053, October 15, 2007 .

Resolution C. T.A . Case No. 7924 "Section 112. Refunds or Tax Credits of Input Tax. (A) Zero-rated or Effectively Zero- rated Sales. - Any VAT- registered person, whose sales are zero-rated or effectively zero-rated may, within two (2) years after th e clos e of the taxa bl e quarter when the sales were ma de, apply for the issuance of a tax credit. certificate or refund of creditable input. Lax due or paid attributable to such sales, except tra nsitional input tax, to the extent that such input tax has not been app lied against. output tax x x x (C) Perio d within which Refund or Tax Credit. of Input Taxes shall be Made. - In proper cases, the Commissioner shall gran t a refund or issue the tax credit certificate for creditabl e inp ut. t axes within one hundred twenty ( 120) days from the date of submissi on of com pl ete documents in support of the ap plication fi led in accordance w ith Subsection (A) hereof. In case of fu ll or partial denial of the claim for Lax refu nd or tax credit, or t he failure on the part of the Commissioner to act on the applica tion within the period prescrib ed abo ve, the tax payer affected may, within thirly (30) days from the receipt of the decision denying the claim or after the exp iration of the one hundred twenty-day perio d, appe al t he decision or t he unacte d claim with the Co urt o f Ta x Appeals. x x x" Pursuant to th e fo reg oing provision, any VAT- registered person, w hose sales are zero-rated or effectively zero-rated, may apply for th e issuance of a tax credit certificate or refund of creditable input tax. Howeve r, the claim for refund of unutilized input VAT payments not otherwise used for any internal revenue/

Resolution C. T.A. Ca se No. 7924 tax due the taxpayer must be made within two years reckoned from th e close of the taxable quarter when the relevant sales were mad e pertaining to the input VAT regardless of whether said tax was paid or not ..., It is a matter of reco rd petitioner's administrative claim for refund for the four quarte rs of the year 2007 was seasonably filed on Ap ril 14, 200 8, or withi n two years from the close of the relevant ta xable quarter . From the said date, respondent had 120 days to act on the ad ministrative claim or until August 12, 2008. The reafter, petitioner had 30 days or until September 11, 2008, with in which to imp ugn an adverse decision or respond ent's inaction via a petitio n for review with the CTA. However, for reas on only known to it, petitioner sought refuge fro m this Court by assa iling respondent's inaction only on April 24, 2009 or a significa nt delay of 225 days. Obviously, the Court can no longer act on the petition without violating the rules. The CTA is a court of special jurisdiction and can only take cognizance of such matters as are clearly within its jurisdiction. 6 / 5 CIR vs. Miranl, C.1.R. No. 172 129, September 1 2, 2008. 6 RCBC v s. CIR , G.R.. No. l6 8t'Jg8, April 24, 2007.

Resolution C. T.A. Ca se No. 79)1 Secti on 11 of Rep ublic Act (R.A.) No. 1125, as amended R.A. No. 9 282 and R.A. No . 9503 further clarified the period to appeal in this wise: SEC. 11. Who May Appeal; Mode of Appeal; Effect of Appeal. - Any party adverse ly affected by a decision , ruling or inaction of the Commissioner of Internal Revenue, the Co mmissioner of Customs, the Secretary of Fina nce, the Secretary of Trade and Industry or the Secretary of Agriculture or the Central Board of Assessment Appeals or the Regional Tria l Courts may file an ap peal with the CTA within thirty (30) days after the receipt of such decision or ruling or after the expiration of the period fixed by law for action as referred to in Section 7(a)(2) herein. x x x Section 3(a), Rule 8 of t he Revised Rules of the Court of Tax Appeal s further states t hat: "SEC. 3. Who may appeal; period to file petition. - A party adversely affected by a decision, ruli ng or th e inaction of the Comm issioner of Internal Revenue on disputed assessments or claims for refund of internal revenue taxes, or by a decision or ruling of the Co mm issioner of Customs, the Secre tary of" Fina nce, the Secretary of Trade and [ndustry, the Secretary of Agriculture, or a Regio nal Trial Co urt in the exercise of its Ol'iginal JUrisdiction may appeal to the Court IJy petition for revie w filed within thirty days after receipt of a co py of such decision or j rul ing, or exp iratio n of the period fixed by law for the Commissioner of Internal

Resolution C. T.A. Case No . 7924 Revenue to act on the disputed assessments. X X x" WHEREFORE, the Motion to Dismiss dated March 23, 2011, filed by respondent Comm issioner of Internal Revenue, is hereby GRANTED. Consequently, the Petition for Review dated April 23, 2009, filed by petitioner Takasago Philippines, Inc. is hereby DISMISSED, for lack of jurisdiction . SO ORDERED. We concur: L-k ~ e;__,_ ERNESTO D. ACOSTA Presiding Justice ER~. UY Associate Justice