CTA Case No. 6315 (Decision)

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY FLUOR DANIEL, INC. - PHILIPPINES, C.T.A. CASE NO. 6315 Petitioner, Promulgated: -versus- COMMISSIONER OF INTERNAL REVENUE, Respondent . X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X DECISION This case involves a claim for issuance of a tax credit certificate of the amount of P16,513 ,519.00, representing petitioner's alleged overpaid income tax as of taxable fiscal year ended October 31 , 2000. Petitioner is a corporation duly organized and existing under the laws of the Philippines, and is primarily engaged in the construction and design engineering business, with principal office at 3/F Asian Star Building, ASEAN Drive, Filinvest Corporate City, Muntinlupa City (Par. 1, Joint Stipulation ofFacts and Issues). On February 15, 2000, petitioner filed its Annual Income Tax Return (ITR) (Exhibit F) for the fiscal year ended October 31 , 1999, declaring the following data:

Decision CTA Case No. 6315 Page 2 Revenues p 891 ,772,566.00 Less: Cost of Sales Gross Income from Operation 618,112,451.00 Add: Non-Operating & Other Income p 273,660,115.00 Total Gross Income Less: Deductions 30,695,857.00 Taxable Income p 304,355,972.00 Minimum Corporate Income Tax 287 ,144,277.00 Prior Year's Excess Credit Tax Payments for the First Three Quarters p 17,211 ,695.00 Creditable Tax Withheld for the First Three Quarters Creditable Tax Withheld for the Fourth Quarter p 6,087,119.00 Total Tax Credits/Payments Tax Payablel(Overpayment) p 795,410.00 20,761 '139.00 1,133,901.00 1 ,291,324.00 p 23,981,774.00 p ~17 , 894, 655 . 00~ Petitioner decided to carry-over as tax credit for next year its supposed excess overpayment in the amount ofP17,894,655.00 (Exhibit "F-8") . On February 15, 2001, petitioner filed its ITR for the fiscal year ended October 31, 2000, reflecting an overpayment of income tax in the amount of P 16,776,328.00, which it chose "To be issued a Tax Credit Certificate" as shown by the "x" mark in the box provided in the same income tax return (l!.,xhibit "B "; Par. 4, Joint Stipulation ~~ Facts and Issues). The overpayment was computed as follows : Revenues p 185,245,536.00 Less: Cost of Sales Gross Income from Operation 136,237,749.00 Add: Non-Operating & Other Income Total Gross Income p 49,007 ,787 .00 Less: Deductions Taxable Income 36,160,578.00 p 85,168,365.00 211 ,086,290.00 p (125,917,925.00) Minimum Corporate Income Tax p 1,703,367.00 Prior Year's Excess Credit Creditable Tax Withheld for the First Three Quarters p 17,894,655.00 Creditable Tax Withheld for the Fourth Quarter Total Tax Credits/Payments 232,060.00 Tax Payable/(Overpayment) 352,980 .00 p 18,479,695.00 p (16,776,328.00)

Decision CTA Case No. 6315 Page 3 However, on April 18, 200 l, petitioner filed an Amended Annual ITR for the fiscal year ended October 31, 2000, showing instead an income tax overpayment in the amount of P16,513 ,519, after increasing its Minimum Corporate Income Tax (MCIT) from P1 ,703,3 67.00 toP 1,966,176.00 (Exhibit A; Par. 5, Joint Stipulation ofFacts and Issues). Petitioner again elected the option "To be issued a Tax Credit Certificate (Exhibit ''A - 7"). On May 25, 2001, petitioner filed with the respondent a request for the issuance of tax credit certificate for the subject amount of Pl6,513,519.00, representing the income tax overpayment and unutilized creditable withholding tax shown in the amended ITR for the taxable fiscal year ended October 31, 2000, pursuant to Sections 76 and 204(C) of the 1997 Tax Code (Par. 11, Joint Stipulation of Facts and Issues; Annex D. Petitionfor Review). On July 16, 2001, in order to suspend the running of the two-year prescriptive period under the law and to preserve its right to judicially claim for a refund or issuance of tax credit certificate, petitioner filed the instant Petition for Review. In his Answer, respondent countered by raising the following Special and Affirmative Defenses: "3 . Petitioner's alleged claim for refund/tax credit is subject to administrative routinary examination/investigation by the respondent' s Bureau; 4. Petitioner failed miserably to show that the total amount of Php 16,513,519.00, claimed as overpaid income tax and unutilized creditable withholding tax for taxable year 2000 was erroneously or illegally collected, or that the same was properly documented;

Decision CTA Case No. 6315 Page 4 5. Taxes paid and collected are presumed to have been paid in accordance with law; hence, not refundable; 6. In an action for tax refund/credit, the taxpayer has the burden to establish its right to refund, and failure to sustain the burden is fatal to the claim for refund; 7. It is incumbent upon petitioner to show that it has complied with the provisions of Sections 204 (C) and 229 ofthe Tax Code; 8. Well-established is the rule that refunds/tax credits are construed strictly against the taxpayer as they partake the nature of exemption from tax. The parties stipulated the issues to be resolved by this court, namely: 1. Whether or not the petitioner has overpaid income taxes for taxable year 2000; 2. Whether or not petitioner is entitled to refund/issuance of tax credit certificate for the amount of Pl6,513,519, representing the overpaid income tax and unutilized CWT for taxable year ended December 31, 2000; 3. Whether or not the income from which the Creditable Withholding Taxes withheld were made formed part of the gross income; 4. Whether or not the unutilized/excess Creditable Withholding Taxes for 2000, 1999 and 1998 are supported by Certificates of Tax Withheld at Source; 5. Whether or not the unutilized/excess Creditable Withholding Taxes for 2000 was carried over to the succeeding taxable year; and 6. Whether or not the claim for refund is properly substantiated by documentary evidence. In claiming for the issuance of a tax credit certificate, petitioner cited Sections 76 and 204 of the Tax Code of 1997, which we quote for easy reference, to wit:

(){'('1<;10f1 CTA Case No. 63 15 Page 5 ""Section 76. Final Ad!w;tmeJtt RetJir!!. - EYen cnrnora!ion l!ahle tol J -- t}l'< under Section 27 shall fi le a final adjustment return covering the total taxable income for the preceding calendar or fiscal year. If the sum of the q uartei ly la\. payments rnaue UU f ing i.he saiU laxaole yea! IS nul equal lO lhe wtai tax due on the em:ire raxable income of rhar year, the corporation shail either� (A) Pay the baiance of tax still due; or ( !3) Carr~, -over the excess crccl!t.. or (C) Be credited or refunded with the excess amou nt paid; as the case may be. In case the corporation is entitled to a tax credit or refl...md of the excess estimated qua1terly income taxes paid the e-xcess amount shown on its final adjustment return may be carried over and credited against t he estimated quarterly income tax iiabiiities for the taxable quarters of the Sllccccdinu ta,:ahlc vcars Once the ontion to carn�-over and annlv the "-' �� � .J �� ... excess quarterly income tax against income tax due for the taxa ble quarters of the succeeding taxable years has been made, such option shaii be consid ered irrevocabie fo r t hat t.axabie period and no a pplication for cash reiund or issuance of a tax credit certificate shaH be allowed therefor." (Emphmi:-. supplied) "~<>('. 204 ~uthorit]' t~( tlte Commiu;imter to t (nnpromi\�e, ~hate and Refund or Credit Taxe.... - ThP Cnm mi~~ioner may- x x x (C) Credil or refund ta �e" erwn.,ou-.~) or 1llegalh ret.el\ed or penalties imposed without authority. refund the value of internal revenue stamps when they are returned in good condition by the purchaser, and, in fllS discn.:tion, I eueern Of change UIJUSeU Stamps that ha\'e been renuei eu Ur!fir f0r use 1md reTI!r!d their v~lue up0n pro0f 0f desrmcri0n No cn�dir or refun of taxes or penalties shall e allo\ 'ed unless the taxpayer tiles is1 wl'iting with the Commis~ioner� a da!m for� e!�edit or� refu nd within two {.lj years after the payme nt of the tax or p enaity: Provu.ied, hom!l'er. That a return filed shcm ini! an m ernavment '-,hall he considered ' "'' l � ;-;-1� " ;-;1� wT--ittt.>:n c..l. !-'lim f.1r cr. f-'-d-i-t nr- rf-'f- im-d "lFm ,--- n1.-hti\1-\. '<- w� lmlh- '-dIl Tn the ease at bar the r~corJ:> indicate !hat petitioner clcctcJ it.-. 1C)9G excess income tax payment to be carried-over as tax credit to the succeeding year (Exhibit ''F- 8 ") The aforecited Secrion 76 ofrhe 1997 Tax Code; hmvever; snnes rh:n if a c0rporari0r1

Decision CTA Case No. 6315 Page6 exercises the option to cany over its excess tax credits to the succeeding years, the option becomes irrevocable for the taxable period and no application for cash refund or issuance of a tax credit certificate shall be allowed. It is a well-settled principle in statutory construction that "when the language of the law is clear and unequivocal, the law must be taken to mean exactly what it says" (Handbook on Statutory Construction by Ruperto G. Martin, 1972 edition, page 62) . Section 76 is clear and unambiguous leaving no room for any other interpretation than what it literally conveys, that is, when the option to carry-over has been exercised, the same shall be irrevocable for that taxable period. [CTA Resolution, The Philippine Banking Corporation, (now known as Global Business Bank, Inc.) vs. Commissioner ofInternal Revenue, CTA Case No. 6280, August 16, 2001). In fact, this court has already ruled in a number of cases that once the option to carry-over the excess credit has been made, that option shall be considered irrevocable for that period. (United International Pictures AB vs. Commissioner of Internal Revenue, CTA Case No. 6240, September 12, 2002; Cebu Holdings, Inc. vs. Commissioner ofInternal Revenue, CTA Case No. 6062, September 10, 2002; Pilipinas Hino, Inc. vs. Commissioner of Internal Revenue, CTA Case No. 6074, Apri/19, 2002 and Pilipinas Transport Industries, Inc. vs. Commissioner of Internal Revenue, CTA Case No.6073, March 1, 2002) . Hence, petitioner is only allowed to cany-over its 1999 excess income tax payment as an automatic tax credit until the same is fully utilized. With respect, however, to petitioner' s 2000 excess income tax payment, petitioner manifested in its ITR that the overpayment for the said fiscal year was "To be issued a

Decision CTA Case No. 6315 Page 7 Tax Credit Certificate". Thus, it can validly claim for the Issuance thereof upon compliance with the following requirements: (1) That the claim for refund is filed within the two-year reglementary period pursuant to Section 229 of the Tax Code; (2) That the income upon which the taxes were withheld were included as part of the gross income declared in the income tax return of the recipient; and (3) That the fact of withholding is established by a copy of the statement duly issued by the payor to the payee showing the amount paid and the amount of tax withheld therefrom. [Revenue Regulations No. 12-94 (amending Revenue Regulations No. 6-85); Citytrust Finance Corporation vs. The Commissioner of Internal Revenue, CTA Case No. 4134, November 11, 1991, affirmed by the Court of Appeals in Citytrust Finance Corporation vs. Court of Tax Appeals and The Commissioner of Internal Revenue, CA. G.R SP No. 28239, March 14, 1994; Citytrust Finance Corporation (formerly Investors Finance Corporation/FNCB Finance) vs. Commissioner of Internal Revenue, CTA Case No. 4046, February 24, 1993, affirmed by the Court of Appeals in Commissioner of Internal Revenue vs. Citytrust Finance Corporation (formerly Investors Finance Corp.IFNCB Finance) and the Court of Tax Appeals, CA. G.R. SP No. 31104, April 18, 1994; Ayala Life Assurance, Inc. vs. Commissioner of Internal Revenue, CTA Case No. 5631, dated May 11, 2000; Stock Transfer Service, Inc. vs. Commissioner of Internal Revenue, CTA Case No. 5796, dated May 3, 2000; Union Bank of the Philippines vs. Commissioner of Internal Revenue, CTA Case No. 5623, dated April 12, 2000; Citibank, N.A. vs. Court ofAppeals and Commissioner ofInternal Revenue, 280 SCRA 459; ACCRA Investments Corporation vs. Court of Appeals, 204 SCRA 957] . Records show that petitioner was able to comply with the first requirement. Its letter-claim for refund filed with the Bureau of Internal Revenue (BIR) on May 25, 2001 and the petition for review filed with this court on July 16, 2001 are both within the two-

Decision CTA Case No. 6315 Page 8 year period reckoned from the date of filing of the final adjustment return for fiscal year 2000, which is on February 15, 2001 (Exhibit "B "). As to the second requisite, petitioner alleged in its memorandum that the income corresponding to the 2000 creditable taxes withheld were included in the gross income declared in its 2000 ITR. An examination of the documents discloses that petitioner derived its income from two sources namely: (1) Contractor's fee and (2) Rental income. As reflected in the certificates of creditable tax withheld at source, petitioner has a total income from contractor' s fee in the amount of P78,153,676.90 which upon verification was indeed included as part of the gross revenue declared in its income tax return in the amount ofP231,556,920.00. Likewise, the rental income in the amount ofP132,949.29, as reflected in the certificates were also declared in the 2000 ITR under other income. Regarding the third requirement, petitioner presented the various certificates of creditable taxes withheld at source to prove the fact of withholding, to wit: WITHHOLDING AGENT EXHIBIT INCOME TAX PAYMENT WITHHELD (A) Rental income p p 40,693.12 p 2,034.66 Texaco Phils. , Inc. T 92 256.17 4612.81 Texaco Phils., Inc. Subtotal p 132.949.29 p 6 647.47 (B) Contractor's fee Procter & Gamble Phils. M p 39,896,194.90 p 195,817.56 Fluor Daniel Pacific, Inc. Fluor Daniel Pacific, Inc. N 1,369,477.00 13,694.77 Fluor Daniel Pacific, Inc. Procter & Gamble Phils. 0 1,088,048.00 10,880.48 Procter & Gamble Phils. Analog Devices Q 963,269.00 9,632.69 Subtotal Total R 10,826,023.00 108,260.23 s 13,830,558.00 138,305.58 u 10,180,107.00 101 801.07 p 78,153,676.90 p 578,392.38 E Z8 286 62619 E 585 Q39 85

Decision CTA Case No. 6315 Page 9 Finally, the creditable taxes withheld were not carried-over to the succeeding year 2001 , as evidenced by petitioner's 2001 ITR, wherein petitioner declared a "nil" prior year's excess credit (page 242, CTA Records) . WHEREFORE, petitioner' s 1999 claim for issuance of a tax credit certificate representing its alleged overpaid income tax in the amount of P15,935,126.62 is DENIED but its year 2000 claim for issuance of a tax credit certificate is hereby GRANTED in the amount ofP585,039.85 . SO ORDERED. P----10. C!'--Y0- ERNESTO D. ACOSTA Presiding Judge WE CONCUR: a~~c:,~~e&~~. 'fiJANITO C. CASTANEDA, JR Associate Judge CERTIFICATION I hereby certify that the above decision was reached after due consultation with the members of the Court of Tax Appeals in accordance with Section 13, Article VIII of the Constitution. ~.o~ ERNESTO D. ACOSTA Presiding Judge