cta_decision CTA Case No. EB 2314EB 2314 2022-05-17

TRANS-ASIA RENEWABLE ENERGY CORPORATION (NOW KNOWN AS :GUIMARAS WIND CORPORATION v. COMMISSIONER OF INTERNAL REVENUE

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY ENBANC TRANS-ASIA RENEWABLE CTA EB NO. 2314 ENERGY CORPORATION (NOW (CTA Case No. 9516) KNOWN AS " GUIMARAS WIND CORPORATION" ), Petitioner, -versus- COMMISSIONER OF INTERNAL REVENUE, R e sp o n d e n t . X------- ------------- -----------------X COMMISSIONER OF INTERNAL CTA EB NO. 2347 REVENUE, (CTA Case No. 9516) Petitioner, Present: -versus- DEL ROSARIO, PJ, CASTANEDA, JR., UY, RINGPIS-LIBAN, MANAHAN, BACORRO-VILLENA, MODESTO-SAN PEDRO, REYES-FAJARDO, and CUI-DAVID, JJ. TRANS-ASIA RENEWABLE Promulgated: ENERGY CORPORATION (NOW KNOWN AS " GUIMARAS WIND CORPORATION"), Respondent. X- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - L - - - - - - -X

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation x------------------------------------------------------------------------------------------x DECISION CUI-DAVID, J.: Before the Court En Bane are two (2) consolidated Petitions for Review1 filed under Rule 8, Section 3(b) of the Revised Rules of the Court of Tax Appeals2 (RRCTA) by Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") (Trans-Asia) and the Commissioner of Internal Revenue (CIR) assailing the Decision dated 3 January 20203 (assailed Decision) and the subsequent Resolutions dated 1 July 20204 and 23 September 2020s (assailed Resolutions), respectively, of the Court's Third Division6 in CTA Case No. 9516, entitled Trans-Asia Renewable Energy Corporation vs. Commissioner ofInternal Revenue. THE PARTIES Trans-Asia is a corporation duly organized and existing under the laws of the Philippines with office address at Barangay Suclaran, Municipality of San Lorenzo, Province of Guimaras. 7 It is registered with the Department of Energy (DOE) as an "RE Developer of Wind Energy Resources"8 and with the Board of Investments (BOI) as a "New Renewable Energy Developer of a 54 MW San Lorenzo Wind Farm Energy Power Project"9. It is a registered taxpayer with the Bureau of Internal Revenue (BIR), as evidenced by its Certificate of Registration I dated 01 January 1996 and Taxpayer Identification No. (TIN) 004-500-956-000.10 1 Fikd by Trans-Asia Renewable Energy Corporation (Trans-Asia) on 20 August 2020, Rollo (CTA EB No. 2314), pp. 1-64. with annexes, and by the Commissioner oflnternal Revenue (CIR) on 14 October 2020, Rollo (CTA EB No. 2347), pp. 1-50. with annexes. 2Rule 8- Procedure in Civil Cases, Section 3(b), Revised Rules of the Court of Tax Appeals. Section 3. Who may appeal: period to file petition. - (b) Any party adversely affected by a decision or resolution of a Division of the Court on a motion for reconsideration or new trial may appeal to the Court by tiling before it a petition for review within fifteen days from receipt of a copy of the questioned decision or resolution. Upon proper motion and the payment of the full amount of the docket and other lawful fees and deposit for costs before the expiration ofthe reglementary period herein tixed, the Court may grant an additional period not exceeding tifteen days from the expiration of the original period within which to file the petition for review. 3 Division Docket, Volume II, pp. 1081-1106. ' !d.. Volume Ill. pp. 1172-1177. ; !d. pp. 1279-1284. 6 Penned by Associate Justice Ma. Belen M. Ringpis-Liban and concurred in by Associate .Justice Erlinda P. Uy and Associate Justice Maria Rowena Modesto-San Pedro. 7 Exhibits �'P-1'' and ''P-1-a". Division Docket, Volume II, pp. 674-696. 8 Exhibit ��P-2"". id.. p. 697. 'Exhibit ��P-3"". id.. pp. 698-705. 10 Exhibit .. P-6��. id. p. 712.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation X------------------------------------------------------------------------------------------X alleged excess and unutilized input VAT attributable to its zero- rated sales for the period 1 July 2014 to 30 June 2015 in the aggregate amount of P335,759,253.00, and the Sworn Certification of Mariejo P. Bautista (Bautista), Trans-Asia's SVP- Finance and Controller, stating that Trans-Asia submitted complete documents for purposes of processing its claim for refund. Thereafter, the BIR issued Letters of Authority (LOAs) dated 21 October 201621 and 07 November 2016,22 authorizing the examination of Trans-Asia's books of accounts and other accounting records for VAT for the period from 01 July 2014 to 31 December 2014 and from 1 January 2015 to 30 June 2015, respectively. On 19 December 2016, Trans-Asia received the Letter dated 15 December 201623 (Denial Letter) signed by the BIR's Deputy Commissioner for Operations Group, Nestor S. Valeroso (Deputy Commissioner Valeroso), denying Trans-Asia's administrative claim for refund covering the period from 1 July 2014 to 31 December 2014 for lack of factual basis. On 11 January 2017 and within thirty (30) days from receipt of the Denial Letter, Trans-Asia filed its prior Petition for Review before the Court in Division to appeal the denial of its administrative claim.24 The same was raffled to the First Division and docketed as CTA Case No. 9516.25 On 10 February 2017, CIR filed its Motion for Extension to File Answer via registered mail. Such was received by the Court in Division on 13 February 2017. Despite being granted an extension of time by the First Division,26 the CIR still failed to file its answer within the extended period. Thus, the CIR was declared in default in the Resolution dated 4 April 20 17. 27~ 21 Exhibit --P-36"'. id. p. 935: Received by Trans-Asia on 26 October 2016. ~2 Exhibit ��P-JT. id. p. 936: Received by Trans-Asia on 10 November 2016. 2-' Exhibit "P-38'', id.. pp. 937-938; Received by Trans-Asia on 19 November 2016. 24 Division Docket, Volume I, pp. 10-90, with annexes. 25 The First Division is composed of Hon. Presiding Justice Roman G. Del Rosario, as Chairperson, Hun. Associate Justice Erlinda P. Uy and Hon. Associate Justice Cielito N. Mindaro-Grulla (Ret.), as Members. 26 See Order dated 15 February 2017, Division Docket, Volume I, p. 99. 27 /d.p.\\0.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation x------------------------------------------------------------------------------------------x On 25 April 2017, the CIR filed an "Omnibus Motion A. To Lift Order of Default; B. To Admit Attached Answer; and C. Defer [Trans-Asia's] Ex-Parte Presentation of Evidence Pending Resolution of the Instant Motion",28 with Trans-Asia's "Opposition (To the Omnibus Motion dated 21 April 201 7)"29 filed on 19 May 2017. In the Resolution dated 31 May 2017,30 the First Division granted the CIR's Omnibus Motion, admitted his Answer and cancelled the ex-parte presentation of Trans- Asia's evidence. In his Answer,31 the CIR alleged, inter alia, that no zero- rated sales have been declared in Trans-Asia's VAT returns covering the period July to December 2014. As such, it cannot, therefore, claim any unutilized input taxes attributable to zero- rated sales. Furthermore, Trans-Asia did not submit copies of the official receipts (ORs) to prove the existence of zero-rated sales. Having failed to show that it has strictly complied with the conditions for the grant of a VAT refund/credit, Trans-Asia is thus not entitled to the claimed VAT refund/ credit. In the same Resolution, the Court set the case for Pre-Trial Conference on 10 August 2017.32 Accordingly, Trans-Asia filed its Pre-Trial Brief33 on 4 August 20 17, while the CIR filed his Pre-Trial Brief34 on 31 August 20 17. On 4 August 2017, the CIR filed an "Urgent Motion to Reset Pre-Trial Conference (Set on 10 August 20 17)",35 which the First Division granted.36 Accordingly, the Pre-Trial Conference was reset to 7 September 2017.37 On 5 September 2017, the CIR forwarded to the First Division the entire BIR Records of the present case consisting of two (2) folders: Folder No. One (1) has 1,024 pages while Folder No. Two (2) has 836 pages.38 The First Division noted the same in the Order dated 7 September 2017.39 ~ 28/d..pp. 115�121. 29/d.. pp. 132-141. 30/d. pp. 144-145. 31 /d.. pp. 122-128. 32Supra at note 29. 33 Division Docket, Volume I, pp. 146-176. "Jd.. pp. 462-467. 15/d.. pp. 441-445. 36 See Order dated 08 August 2017. id.. p. 446. 37Jd. 38 Sec Compliance dated 31 Augu~t 2017, id., pp. 469-472. 39 See Order dated 07 September 2017. id.. pp. 479-481.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation x------------------------------------------------------------------------------------------x During the 7 September 2017 Pre-Trial Conference, the First Division granted both parties twenty (20) days, or until 27 September 2017, within which to submit their Joint Stipulation of Facts and Issues (JSFI). 4D After being granted two (2) extensions of time by the First Division41, the parties posted their JSFI on 23 October 2017.42 In compliance with the First Division's order,43 on 7 November 2017, Trans-Asia filed a motion for the commissioning of Katherine 0. Constantino (Constantino) of Constantino Guadalquiver & Co., as the Independent Certified Public Accountant (ICPA). 44 In the Order dated 16 November 201745 , the First Division commissioned Constantino as the ICPA and directed her to submit her report within 30 days therefrom. ICPA Constantino filed her Report46 on 18 December 2017. On 4 December 2017, the First Division issued a Pre-Trial Order47 approving the parties' JSFI and terminating the pre- trial. In the trial that ensued, Trans-Asia presented its testimonial and documentary evidence. It offered the testimonies of its witnesses, namely: (1) Danilo L. Panes (Panes), Trans-Asia's Vice-President; (2) Sheila Mozenda M. Barce (Barce), Trans-Asia's Finance Manager and, (3) Constantino, the Court-commissioned ICPA. On the witness stand, Panes identified his Judicial Affidavit4B where he declared that: (1) As Vice-President, he is primarily responsible for Trans-Asia's growth in renewable energy by finding opportunities where Trans-Asia can put investments in wind energy as well as other renewable energy sources and directly responsible for � overseeing the operation and management of its 54 MW San Lorenzo Wind Farm; 40/d_ 41 See Order dated 02 October 2017 and Resolution dated 03 November 2017, id., pp. 495 and 527. respectively. 42 /d, pp. 512-521. 43 Supra at note 38. 44 See Motion for Commissioning of Independent Certified Public Accountant dated 7 November 2017. Division Docket, Volume L pp. 528-531. "!d.. pp. 557-558. 46 Exhibit '�P-70", Separate Folder and CD. 47 Division Docket. Volume I, pp. 567-575. "Dated 03 August 2017, Exhibit "P-39", id., pp. 180-234.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation X------------------------------------------------------------------------------------------X (2) Trans-Asia is registered with the DOE as a renewable energy developer (RE Developer) of wind energy resources, as evidenced by DOE Certificate of Registration No. WESC 2009- 10-009 dated 23 October 2009;49 (3) Trans-Asia is registered with the BOI as a new RE Developer, as evidenced by BOI Certificate of Registration No. 2011-122 dated 15 June 20 11 ;so (4) The Energy Regulatory Commission (ERC) has certified that Trans-Asia owns and operates a wind farm located in Brgy. Suclaran, San Lorenzo, Guimaras, as evidenced by Certiftcate of Compliance (COC) No. 15-06-M-11 V dated 01 June 20 15;51 (5) The ERC has also certified that Trans-Asia's project is qualified to collect the Feed-In-Tariff (FIT) rate for every energy delivered to the grid, as evidenced by COC No. 15-12-M- 00029V dated 01 December 2015;52 (6) Trans-Asia's Wind Farm achieved its commercial operations on 27 December 2014, as evidenced by DOE Certificate of Endorsement for FIT Eligibility COE-FIT No. W-2015-05-004 dated 10 June 2015;53 (7) Trans-Asia generated power from its wind power plant which it then exclusively sold through the Wholesale Electricity Spot Market (WESM) pursuant to its Market Participation Agreement54 with the Philippine Electricity Market Corporation (PEMC); and, (8) As a Direct WESM Member and Trading Participant, Trans- Asia is required to sell its electricity through the WESM. During cross-examination, Panes confirmed that Trans- Asia sells energy purely from renewable sources. 55 Next to take the witness stand was Barce who identified her Judicial Affidavit dated 03 August 20 1756 and declared therein that: (1) As Finance Manager, she is primarily responsible for handling and overseeing Trans-Asia's financial and tax operations and ~ functions; 49 Exhibit "P-2". supra at note 7. 50 Exhibit "P-3", supra at note 8. 51 Exhibit "P-4'', Division Docket, Volume IL p. 706. 52 Exhibit "P-5", id.. pp. 707-711. ~.1 Exhibit "P-10". id., p. 720. " Exhibit "P-11 ". id., pp. 721� 728. "TSN dated 23 January 2018. %Exhibit ��P-40", Division Docket, Volume I, pp. 238-440.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation Page 8 of33 X------------------------------------------------------------------------------------------X (2) In the latter's Amended Quarterly VAT Returns for the 3rd quarter of TY 2014 until the 2nd quarter of TY 2015, Trans- Asia reported zero-rated sales in the aggregate amount of P355,536,412.32; (3) During the period of claim, Trans-Asia accumulated input taxes arising from its importation of non-capital goods and domestic purchases of goods and services; (4) Out of the total input tax credits amounting to P423,981,646.46, P335,759,253.00 remained unutilized as of the close of the 2nd quarter of TY 2015; (5) Trans-Asia's input VAT remained unutilized since they were not applied against any output VAT liability during and in the succeeding quarters and they were not carried forward to the succeeding taxable periods; (6) On 15 August 2016, Trans-Asia filed its administrative claim for refund or issuance of a TCC for its excess and unutilized input VAT for the 3rct and 4th quarters ofTY 2014 and the 1st and 2nd quarters of TY 2015 in the aggregate amount of P335,759,253.00 attributable to zero-rated sales; (7) Thereafter, Trans-Asia received on separate dates two (2) LOAs: one authorized the examination of its books of accounts and other accounting records for the 3rd and 4th quarters of TY 2014 and the other, authorized the examination of its books of accounts and other accounting records for the 1st and 2nd quarters ofTY 2015; and, (8) On 15 December 2016, the BIR issued the Denial Letters?, which Trans-Asia received on 19 December 2016. No cross-examination was conducted.sB Lastly, when called to the witness stand, ICPA Constantino identified: (1) her Judicial Affidavit dated 5 March 2018;59 (2) ICPA Report dated 18 December 2017;6o and, (3) two (2) CDs61 containing scanned copies of the ICPA Report and its annexes (marked as Exhibit "P-70-2") and the exhibits she examined (marked as Exhibit "P-70-2-1 "). lW q Supra at note 22. "TSN dated 13 February 2018. 59 Exhibit"P-48", Division Docket, Volume I, pp. 598-615. 60 Exhibit ''P-70'', supra at note 45. 61 Exhibit ''P-21-2".

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation x------------------------------------------------------------------------------------------x On 2 May 2018, after completing the presentation of its testimonial evidence and after being granted an extension of time by the First Division,62 Trans-Asia filed its Formal Offer of Evidence63 (FOE) consisting of Exhibits "P-1" to "P-699", inclusive of sub-markings (but sans Exhibits "P-49" to "P-69", which were not offered in evidence). The CIR, however, failed to file his comment thereto despite notice.64 In the Resolution dated 30 July 2018,65 the First Division admitted all of Trans-Asia's exhibits. During the 7 August 2018 hearing, the CIR offered the testimony of his lone witness, Revenue Officer Jun-Jun B. Andallo (RO Andallo). In his Judicial Affidavit dated 31 August 2017,66 RO Andallo declared that: (1) He holds the position of RO IV/Group Supervisor; (2) He was tasked to review and evaluate Trans-Asia's claim for refund or issuance of a TCC for the alleged excess and unutilized input VAT for the 3rct and 4th quarters of TY 2014 in the aggregate amount of P335,759,253.00; (3) His group recommended the denial of Trans-Asia's claim for refund; (4) Based on their evaluation of Trans-Asia's claim, they found that it did not declare zero-rated sales in its Quarterly VAT Returns covering the period from July to December 20 14; and, (5) As such, Trans-Asia cannot claim any unutilized input VAT attributable to zero-rated sales. During the cross-examination, RO Andallo was asked to clarify the period of the claim for refund to which he confirmed that it covers the 3rct and 4th quarters of TY 20 14 and the 1st and 2nd quarters ofTY 2015.67 However, he likewise admitted that his group only examined Trans-Asia's documents pertaining~ 62 See Resolution dated 30 Apri12018. Division Docket, Volume I. p. 633. ,., /d., Volume II. pp. 634-673. 64Per Records Verification Report dated 07 June 2018, id., p. 981. 65 /d., pp. 988-989. "'ld.. Volume I, pp. 453-457. 67 TSN dated 7 August 2018.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation x------------------------------------------------------------------------------------------x the 3rct and 4th quarters ofTY 2014 and not the entire period of the claim.68 In the interim, the case was transferred to the Court's Third Division.69 On 15 August 2018, the CIR filed his FOE,7� consisting of Exhibits "R-1" to "R-4". Trans-Asia filed its CommenF1 thereto on 24 August 2018. In the Resolution dated 09 October 2018,72 the Third Division admitted all of the CIR's exhibits and gave the parties a period of 30 days within which to submit their respective memoranda. The CIR filed his Memorandum73 on 13 November 2018. On the other hand, after being granted two (2) extensions of time by the Third Division,74 Trans-Asia filed its Memorandum75 on 3 January 2019. Accordingly, on 8 January 2019, the Third Division considered the case submitted for decision.76 On 3 January 2020, the Third Division rendered the assailed Decision, partially granting the Petition for Review.77 Its dispositive portion reads: WHEREFORE, in light of the foregoing considerations, the instant Petition for Review is PARTIALLY GRANTED. Accordingly, Respondent is ORDERED TO REFUND OR ISSUE A TAX CREDIT CERTIFICATE in favor of Petitioner in the amount of P16,149,514.98, representing the latter's unutilized excess input VAT it paid on its importations of goods for the 3rd and 4th quarters of TY 2014 and the 1st and 2nd quarters of TY 2015, attributable to its zero-rated sales for the month of June 2015. SO ORDERED. ~ 68/d. 69See Order dated 24 September 2018. Division Docket, Volume II, p. 1008. The Third Division is composed of Han. Associate Justice Erlinda P. Uy. as Chairperson. and Han. Associate Justice Ma. Belen M. Ringpis-Liban, as Member. 70 /d. pp. 994-998. 71 /d. pp. 999-1005. "/d. pp. 1010-1011. 73 !d. pp. 1012-1021. 74 See Resolution dated 16 November 2018 and Resolution dated 20 December 2018, id., pp. 1026 and I031, respectively. 75 /d. pp. 1032-1072. 76 See Resolution dated 8 January 2019. id.. p. 1074. 77 Supra at note 2.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation X------------------------------------------------------------------------------------------X Both Trans-Asia and the CIR sought reconsideration of the assailed Decision.78 Subsequently, on 1 July 202079 and 23 September 2020,80 the Third Division rendered the assailed Resolutions on Trans-Asia's Motion for Reconsideration (MR) and the CIR's Motion for Partial Reconsideration (MPR), respectively, the dispositive portions of which are reproduced below: WHEREFORE, premises considered, petitioner's Motion for Reconsideration (Re: Decision dated January 3, 2020) is DENIED for lack of merit. SO ORDERED. WHEREFORE, premises considered, [r]espondent's Motion for Partial Reconsideration (Re: Decision promulgated on January 3, 2020) is DENIED for lack of merit. SO ORDERED. Both unsatisfied with the Third Division's rulings, Trans- Asia and the CIR filed their respective Petitions for Review before the Court En Bane, docketed as CTA EB Nos. 2314 and 2347, respectively. 81 In the Resolution dated 16 September 2020,82 the Court En Bane ordered the CIR to file his comment to Trans-Asia's petition in CTA EB No. 2314. However, despite due notice, the CIR failed to file the same.83 In the Resolution dated 5 November 202084, the Court En Bane ordered Trans-Asia to file its comment to the CIR's petition in CTA EB No. 2347. In compliance therewith, Trans-Asia filed its Comment85 on 1 December 2020. On 23 February 2021, the Court En Bane submitted these consolidated cases for decision. 86 ~ 78 Sec Motion for Reconsideration tiled by Trans-Asia and Motion for Partial Reconsideration filed by the CIR, Division Docket. Volume 11. pp. 1109-1128 and 1129-1142, respectively. 79 Supra at note 3. 80 Supra at note 4. 81 Supra at note I. "'Rollo (CTA E\3 No. 2314), pp. 95-96. 83 Per Records Veritication dated 21 January 2021, id, p. 157. "!d.. pp. 140-141. 85/d., pp. 142-156. 86 See Resolution dated 23 February 2021, id., pp. 159-160.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation x------------------------------------------------------------------------------------------x previously raised in its Motion for Reconsideration on the assailed Decision: I. Section 108(8)(7)89 of the National Internal Revenue Code (NIRC) of 1997, as amended, as well as Section 15(g)90 of Republic Act No. (RA) 9513 or the Renewable Energy Act of 2008 (RE Law) clearly provide that the sale of power through renewable sources of energy by VAT-registered persons shall be subject to zero percent (0%) VAT; II. The requirements under RA 9136 or the Electric Power Industry Refonn Act of2001 (EPIRA) must be complied with only if the claim for refund is based on the EPIRA. Since the subject claim for refund is anchored on Section 15(g) of RA 9513, in relation to Section 108(8)(7) of the NIRC of 1997, as amended, the requirement under the EPIRA (that a generation company should secure a COC before its sales of power or fuel generated from renewable energy sources can be qualified for VAT zero-rating) does not apply to Trans- Asia; Ill. The COC issued by the ERC is a procedural requirement that merely confirms the status of Trans-Asia as a "generation company" and does not affect the VAT zero-rating status of Trans-Asia's sales under the NIRC of 1997, as amended, and RA 9513; IV. Even assuming that a COC is required before a generation company's sales be accorded VAT zero-rating, Trans-Asia's application for the issuance of a COC was already deemed approved by the ERC as of 22 September 2014, and the CIR himself has recognized Trans-Asia as a generation company; V. The Government is duty-bound to grant the refund on the equitable ground of unjust enrichment; and, VI. The improper application of the EPIRA (in requiring all generation companies to present a COC regardless of the basis for the claim for refund) deprives generation companies of their right to the refund of unutilized input VAT, which is granted by law. Unless reversed, the assailed Decision will cause irreparable economic injury not only to Trans-Asia but to the power generation industry in general. 89 SEC. I08. Value-Added Tax on Sale ofServices and Use or Lease of Properties.-. ~ (B) Transactions Sllbject to Zero Percent (0%) Rate.- ... (7) Sale of power or fuel generated through renewable sources of energy such as, but not limited to, biomass, solar, wind, hydropower. geothermaL ocean energy, and other emerging energy sources using technologies such as fuel cells and hydrogen fuels. 90 Sec. IS. Incentives for Renewable Energy Projects and Activities.-. (g) Zero Percent r'alue-Added Tax Rate.-.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation X------------------------------------------------------------------------------------------X Respondent CIR did not file his comment to Trans-Asia's petition. 91 The CIR's Arguments However, in his Petition for Review in CTA EB No. 2347, the CIR argues that the law requires that only "creditable input taxes" that are "directly attributable" may be refunded. Relying on the European VAT system, he argues that only the VAT paid for supplies in the business is creditable as input tax of a VAT- registered person, and thus, purchases must in turn relate to the supplies (goods/ services). The CIR adds that to be creditable, the input tax must come from purchases of goods that form part of the finished product of the taxpayer or it must be directly used in the chain of production. Further, there must be a showing of the direct attributability of the purchases or input tax to the finished product whose sale is zero-rated. Having failed to establish direct attributability between the input tax on purchases vis-a-vis its zero-rated sales, the CIR insists that Trans-Asia fell short of proving the veracity of its claim for refund. In its comment to the CIR's Petition for Review, Trans-Asia points out that the ground relied upon by the CIR is a mere reiteration of his arguments in his Motion for Reconsideration on the assailed Decision. Trans-Asia then counters that the law does not require a claimant for refund or tax credit of input tax to prove which of its purchases are directly attributable to its zero-rated transactions and which are directly attributable to its taxable transactions. Even assuming that the law requires proof that purchases are directly attributable to its zero-rated transactions, Trans- Asia maintains that it was able to substantiate its importations of non-capital goods that are attributable to zero-rated sales of power generated through renewable sources of energy during ~ the period of claim. 91 Supra at note 83.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation Page 15 of33 X------------------------------------------------------------------------------------------X THE RULING OF THE COURT EN BANC Before going into the merits of the case, We shall first rule on the timeliness of the Petitions for Review filed by Trans-Asia and the CIR. The instant Petitions for Review are timely filed. Trans-Asia filed its Petition for Review before this Court En Bane on 20 August 2020 after having received the Resolution of the Court's Third Division denying its motion for reconsideration on 24 July 2020.92 Meanwhile, the CIR filed his Petition for Review on 14 October 2020 after having received the Resolution of the Court's Third Division denying his motion for partial reconsideration on 2 October 2020. Having been timely filed within the reglementary periods provided under Rule 8, Section 3(b) of the RRCTA,93 the Court En Bane validly acquired jurisdiction over the present Petitions. We now proceed to determine the merits of the petitions. At the outset, it must be underscored that the issues raised by Trans-Asia and the CIR in their respective petitions are mere reiterations of the issues which had already been considered, passed upon and resolved by the Third Division in the assailed Decision and Resolutions. Nonetheless, We shall re-emphasize and elucidate on the conclusions reached by the Court in Division. wl 92 On 3 August 2020, the Supreme Court issued Administrative Circular 43A-2020 suspending the reglementary period for liling of petitions and appeals and other court submissions that fall between 4 to 18 August 2020, and ordering the resumption of the period for filing on 19 August 2020. Trans-Asia still had five (5) days from the resumption of the period for tiling. i.e., 19 August 2020 or unti\23 August 2020 within which to tile an appeal. Considering that 19 August 2020 is a special non-working holiday in Quezon City (birth anniversary of former President Manuel L. Quezon), Trans- Asia timely tiled its petition for review the next working day on 20 August 2020. 93 SEC 3. Who ,\4ay Appeal; Period to File Petition.- ... (b) A party adversely affected by a decision or resolution of a Division of the Court on a motion for reconsideration or new trial may appeal to the Court by filing before it a petition for review within fifteen days from receipt of a copy of the questioned decision or resolution. Upon proper motion and the payment of the full amount of the docket and other lawful fees and deposit for costs before the expiration of the reglementary period herein fixed. the Court may grant an additional period not exceeding lifteen days from the expiration of the original period within which to lile the petition for review.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation }{------------------------------------------------------------------------------------------}{ CTA EB No. 2314 Petitioner Trans-Asia failed to establish that it is engaged in zero- rated or effectively zero-rated sales for the entire period of claim for refund or tax credit. Petitioner Trans-Asia claims that it is entitled to the entire claim for refund in the amount ofP335,759,253.00 representing excess and unutilized input VAT paid or incurred on its importation of non-capital goods, which are attributable to its zero-rated sales of power generated from renewable sources of energy during the period of claim. Petitioner anchored its entitlement to zero-rate on Section 15(g) of RA 9513 (RE Law), in relation to Section 108(8)(7) of the NIRC of 1997, as amended. Section 15(g) of theRE Law pertinently reads as follows: SEC. 15. Incentives for Renewable Energy Projects and Activities. - RE developers of renewable energy facilities, including hybrid systems, in proportion to and to the extent of the RE component, for both power and non-power applications, as duly certified by the DOE, in consultation with the BOI, shall be entitled to the following incentives: (g) Zero Percent Value-Added Tax Rate. - The sale of fuel or power generated from renewable sources of energy such as, but not limited to, biomass, solar, wind, hydropower, geothermal, ocean energy and other emerging energy sources using technologies such as fuel cells and hydrogen fuels, shall be subject to zero percent (0%) value-added tax (VAT), pursuant to the National Internal Revenue Code (NIRC) of 1997, as amended by Republic Act No. 9337. All RE Developers shall be entitled to zero-rated value added tax on its purchases of local supply of goods, properties and services needed for the development, construction and installation of its plant facilities. This provision shall also apply to the whole process of exploring and developing renewable energy sources up to its conversion into power, including but not limited to the services performed by subcontractors and/ or contractors. [Emphasis and underscoring supplied] ~

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation X------------------------------------------------------------------------------------------X (7) Sale of power or fuel generated through renewable sources of energy such as, but not limited to, biomass, solar, wind, hydropower, geothermal, ocean energy, and other emerging energy sources using technologies such as fuel cells and hydrogen fuels. [Emphasis and underscoring supplied] Given the foregoing, We agree with Trans-Asia's submission that the sale of renewable sources of energy may be subject to zero-rate under the RE Law and under the NIRC of 1997, as amended. Furthermore, REDevelopers are entitled to zero-rated VAT on their purchases of local supply of goods, properties, and services needed for the development, construction, and installation of plant facilities. However, the registration as RE Developer and the issuance of the corresponding DOE Certification to that effect are not enough to enjoy the incentive of VAT zero-rating on sales of renewable sources of energy under Section 15(g) of the RE Law, in relation to Section 108(B)(7) of the NIRC of 1997, as amended. Section 2695 of the RE Law requires RE Developers to comply with the requirements that may be imposed by the government agencies tasked with the administration of the fiscal incentives under Section 15 thereof. Additionally, RE Developers must comply with the conditions laid down under Section 18(A), (B) and (C), Rule 5, Part III of the Implementing Rules and Regulations (IRR) of the RE Law to avail of the incentives, to wit: SEC. 18. Conditions for Availment of Incentives and Other Privileges. - A. Registration/Accreditation with the DOE For purposes of entitlement to the incentives and privileges under the Act, existing and new RE Developers, and manufacturers, fabricators, and suppliers of locally- produced RE equipment shall register with the DOE, through the Renewable Energy Management Bureau (REMB). The following certifications shall be issued: ~ 95 SEC. 26. Certification from the Department ofEnergy (DOE).- All certifications required to qualify REdevelopers to avail of the incentives provided for under this Act shall be issued by the DOE through the Renewable Energy Management Bureau . . Provided. That the certification issued by the DOE shall be without prejudice to any further requirements that may be imposed by the concerned agencies of the government charged with the administration of the fiscal incentives abovementioned.l�mphasis m1d underscoring supplied/

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy- Corporation x------------------------------------------------------------------------------------------x (1) DOE Certificate of Registration- issued to an RE Developer holding a valid RE Service/Operating Contract. (2) DOE Certificate of Accreditation - issued to RE manufacturers, fabricators, and suppliers of locally-produced RE equipment, upon submission of necessary requirements to be determined by the DOE, in coordination with the DTI. B. Registration with the Board of Investments (BOI) To qualify for the availment of the incentives under Sections 13 and 15 of this IRR, RE Developers and manufacturers, fabricators, and suppliers of locally-produced RE equipment, shall register with the 801. C. Certificate of Endorsement by the DOE RE Developers, and manufacturers, fabricators, and suppliers of locally-produced RE equipment shall be qualified to avail of the incentives provided for in the Act only after securing a Certificate of Endorsement from the DOE, through the REMB, on a per transaction basis. The DOE, through the REMB, shall issue said certification within fifteen (15) days upon request of the RE Developer or manufacturer, fabricator, and supplier; Provided, That the certification issued by the DOE shall be without prejudice to any further requirements that may be imposed by the government agencies tasked with the administration of the fiscal incentives mentioned under Rule 5 of this IRR. [Emphasis and underscoring supplied] The above legal pronouncements are clear and admit no exception to the requirement that to avail of the fiscal incentives including the benefit of VAT zero-rating, an RE Developer like Trans-Asia must secure the following documents, to wit: 1. DOE Certificate of Registration; 2. Registration with the BOI; and 3. Certificate of Endorsement by the DOE. Indeed, this Court has been consistent in ruling that all three requirements are needed.96 In Halliburton Worldwide Limited-Philippine Branch vs. Commissioner of Internal Revenue,97 We held that the DOE Certificate of Registration, ~ %Maibarara Geothermal, Inc. vs. Commissioner ofInternal Revenue. CTA EB No. 2111. Resolution, 2 June 2021. "/d.. citing CTA EB Case No. 2022 and 2042 (CTA Case No. 9449). 29 October 2020.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation X------------------------------------------------------------------------------------------X Registration with the BOI, and the DOE Certificate of Endorsement of theRE Developer must all be presented to prove that the purchases of the RE Developer are VAT zero-rated pursuant to Section 15(g) of the RE Law and its IRR and, consequently, for the purchaser's claim for refund to prosper.98 Similarly, in North Luzon Renewable Energy, Corp. vs. Commissioner of Internal Revenue99 and in Philippine Geothermal Production Company, Inc. vs. Commissioner of Internal Revenue, 100 it was also held that all three (3) documents must be presented, otherwise the sale could not qualify for VAT zero-rating pursuant to Section 15(g) ofRA 9513 and its IRR. The use of the word "shall" in the IRR indicates mandatory submission of the requirements in order to qualify for VAT zero- rating.lDl In this case, records reveal that Trans-Asia offered the following documentary exhibits, among others, to prove that it is a power generation company under theRE Law,1o2 to wit: a. Certificate of Registration No. WESC 2009-10-009 issued by the DOE on October 23, 2009 to Petitioner; b. Certificate of Registration No. 2011-122 issued by the 801 on June 15, 2011 to Petitioner; c. Certificate of Compliance (COC) No. 15-06-M-11V issued by the ERC to the Petitioner on 1 June 2015; d. Certificate of Compliance (COC) No. 15-12-M-0029V issued by the ERC to the Petitioner on 1 December 2015; e. Provisional Certificate of Approval to Connect NetAccess-KAP- RRA-20 14-09-302 issued by National Grid Corporation of the Philippines dated September 17, 20 14; and f. Certification issued by the ERC dated August 1, 2014 granting the Company provisional authority to conduct testing and commission of units 1 to 27 between the period August 30, 2014 to January 30, 2015. ~ 98Jd 99/d.. citing Cl"A Case No. 9886. 19 February 2021. 100/d.. citing CTA Case Nos. 9208 and 9274. 24 July 2020. IUI[J. 102 CTA Case No. 9516, par. 55 of the Memorandum of the Petitioner, Division Docket p. 1049; Fonnal Offer of Evidence. pp. 635-636; Resolution dated 30 July 2018. pp. 988-989.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation X------------------------------------------------------------------------------------------X However, there is no showing that Trans-Asia was issued a Certificate of Endorsement by the DOE on a per transaction basis, relative to its sales of renewable energy covering the period 1 July 2014 to 30 June 2015, as mandated by Section 18(C), Rule 5, Part III of the IRR of the RE Law. Hence, for failure to comply with the RE Law and its IRR, it is not entitled to VAT zero-rating and perforce, its refund claim must fail. Nonetheless, even if Trans-Asia has failed to comply with the requirements for VAT zero-rating under the RE Law, the Court in Division correctly ruled that its sales for the month of June 2015 still qualify for VAT zero-rating under RA 9136 or the EPIRA. While Trans-Asia insists that its claim for refund or issuance of tax credit is based on Section 15(g) ofthe RE Law, 103 the records show that it presented to the Court in Division a COC issued by ERC on 1 June 2015 to prove that it is a generation company and it is engaged in zero-rated sales of power generated from renewable sources of energy.l04 Clearly, Trans-Asia's claim for refund is not based only on the RE Law and Section 108(B)(7) of the NIRC of 1997, as amended, but also on the EPIRA. Under the EPIRA, a generation company must secure a COC before its sale of power or fuel generated from renewable energy sources can qualify for VAT zero-rating. Section 4.108-3(f) of Revenue Regulations (RR) No. 16- 2005105 provides the definition of generation companies and states that their sale of power generated through renewable sources of energy shall be zero-rated, if authorized by the ERC, to wit: SEC. 4.108-3. Definitions and Specific Rules on Selected Services.- ... (f) Sale of electricity by generation, transmission, and distribution companies shall be subject to 10% 106 VAT on their gross receipts; Provided, That sale of power or fuel generated through renewable sources of energy such as, ~ 101 in relation to Section 108 (8)(7). of the NIRC of 1997, as amended. 104 CTA Case No. 9516. formal OtTer of Evidence, pp. 635-636. 10~ Prescribes the Consolidated Value-Added Tax Regulations of 2005, superseding RR No. 14-2005 (November I. 2005). issued to implement Section 108(B)(7) of the NIRC of 1997, as amended. 106 Now 12% under Revenue Memorandum Circular No. 7-2006.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation x------------------------------------------------------------------------------------------x but not limited to, biomass, solar, wind, hydropower, geothermal, ocean energy, and other emerging energy sources using technologies such as fuel cells and hydrogen fuels shall be subject to 0% VAT. "Generation companies" refer to persons or entities authorized by the Energy Regulatory Commission (ERC) to operate facilities used in the generation of electricity. For this purpose, generation of electricity refers to the production of electricity by a generation company or a co-generation facility pursuant to the provisions of the RA No. 9136 (EPIRA). They shall include all Independent Power Producers (IPPs) and NPC I Power Sector Assets and Liabilities Management Corporation (PSALM)-owned generation facilities. [Emphasis and underscoring supplied] Correlatively, Section 4(x) of the EPIRA defines a generation company as follows: SEC. 4. Definition of Terms.- (x) "Generation Company" refers to any person or entity authorized by the ERC to operate facilities used in the generation of electricity; Similarly, Section 4(o) of the RE Law defines a generation company as follows: SEC. 4. Definition ofTerms. -As used in this Act, the following terms are herein defined: XXX XXX (o) "Generation Company" refers to any person or entity authorized by the ERC to operate facilities used in the generation of electricity; In relation to the foregoing, Section 6 of the EPIRA provides that a COC is a prerequisite before a generation company could operate, and henceforth avail of 0% VAT, to wit: SEC. 6. Generation Sector. - Generation of electric power, a business affected with public interest, shall be competitive and open. Upon the effectivity of this Act, any new generation company shall, before it operates, secure from the Energy Regulatory Commission (ERC) a certificate of compliance pursuant to the standards set forth in this Act, as well as health, safety and environmental clearances from the ~ appropriate government agencies under existing laws.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation X------------------------------------------------------------------------------------------X Pursuant to the objective of lowering electricity rates to end-users, sales of generated power by generation companies shall be value added tax zero-rated. [Emphasis and underscoring supplied} Moreover, Rule 5, Section 4 of the IRR of the EPIRA107 provides: RULE 5. GENERATION SECTOR SEC. 4. Obligations ofa Generation Company.- (a) A COC shall be secured from the ERC before commercial operation of a new Generation Facility. The COC shall stipulate all obligations of a Generation Company consistent with this Section and such other operating guidelines as ERC may establish. The ERC shall establish and publish the standards and requirements for issuance of a COC. A COC shall be issued upon compliance with such standards and requirements. (i) A Person owning an existing Generation Facility or a Generation Facility under construction, shall submit within ninety (90) days from effectivity of these Rules to ERC, when applicable, a certificate of DOE/NPC accreditation, a three (3) year operational history, a general company profile and other information that ERC may require. Upon making a complete submission to the ERC, such Person shall be issued a COC by the ERC to operate such existing Generation Facility. [Emphasis and underscoring supplied] Indeed, it is only upon the issuance of the prerequisite COC that a generation company, like Trans-Asia, may be regarded as authorized by the ERC to operate a generation facility, and thus, entitled to VAT zero-rating of its sale of power or electricity. Contrary to Trans-Asia's supposition, a COC is not simply confirmatory of the status of Trans-Asia as a generation company nor a mere procedural requirement imposed by the EPIRA and its IRR. It is a prerequisite before one can be considered as a generation company entitled to tax incentives. vi 107 Rules and Regulations to Implement Republic Act No. 9136, entitled "Electric Power Industry Reform Act of2001'', 27 February 2002.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation X------------------------------------------------------------------------------------------X To reiterate, the use of the word "shall" indicates the mandatory character of the COC as a requirement in order to qualify for VAT zero-rating. It is axiomatic that the Court, in reviewing the merits of the case shall only consider evidences which were presented before it. 1os In the present case, Trans-Asia was able to prove that it is a generation company armed with the requisite COC conferred by ERC on 1 June 2015. In Commissioner of Internal Revenue vs. Toledo Power Company,Io9 the Supreme Court ruled that Toledo Power Company was not a generation company until 23 June 2005, when the ERC issued a COC in its favor: ... [A]t the time the sales of electricity to CEBECO, ACMDC, and AFC were made in 2002, TPC was not yet a generation company under EPIRA. Although it filed an application for a COC on June 20, 2002, it did not automatically become a generation company. It was only on June 23, 2005, when the ERC issued a COC in favor of TPC, that it became a generation company under EPIRA. Consequently, TPC's sales of electricity to CEBECO, ACMDC, and AFC cannot qualify for VAT zero-rating under the EPIRA. [Emphasis and underscoring supplied} Accordingly, Trans-Asia's sale of power generated from renewable energy sources like wind has qualified for VAT zero- rating under the EPIRA but only starting 1 June 2015, when the ERC issued a COC in its favor. We quote with approval the pertinent ruling of the Court in Division, viz.: Given this factual milieu, Petitioner's generated sales from its power generation activities which are subject to the zero percent (0%) VAT would only refer to its sales during the period of June I, 2015 to June 30, 2015. In its Quarterly VAT Return for the 2nd quarter of TY 2015, Petitioner reported zero-rated sales in the total amount of P148,007,419.15. Out of this amount, only P17,119,466.49 were duly supported by zero-rated VAT official receipts during the month of June 2015, to wit: ... ~ 108Augusto vs. Dy, G.R. No. 218731. 13 February 2019. 109 G.R. No. 1964\5,2 December2015.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation X------------------------------------------------------------------------------------------X Hence, as far as the fourth requisite is concerned, out of the reported zero-rated sales in its Quarterly VAT Returns for the 1st and 2nd quarters of TY 2015 in the total amount of P355,536,412.32 (P207,528,993.17 + P148,007,419.15), only the sales made during the month of June 2015 in the total amount of P17,119,466.49 qualify for VAT zero-rating. ... [Emphasis and underscoring supplied] CTA EB No. 2347 The Court's Third Division did not err in partially granting petitioner's claim for refund. The CIR posits that only "creditable input taxes" that are "directly attributable" may be refunded. Relying on the European VAT system, he argues that only the VAT paid for supplies in the business is creditable as input tax of a VAT- registered person. According to the CIR, since Trans-Asia failed to establish direct attributability between the input tax on purchases vis-a-vis its zero-rated sales, its claim for refund must fail. Trans-Asia counters that the ground relied upon by the CIR is a mere reiteration of his arguments in his Motion for Reconsideration on the assailed Decision, and that the law does not require a claimant for refund or tax credit of input tax to prove which of its purchases are directly attributable to its zero- rated transactions and which are directly attributable to its taxable transactions. While this Court agrees with Trans-Asia that the CIR failed to raise any new or substantial matter in his petition, nonetheless, if only to put the CIR's mind to rest, the Court will address the matter herein raised. Section 112(A) of the NIRC of 1997, as amended, states: SEC. 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 the close of the ~ taxable quarter when the sales were made, apply for the issuance of a tax credit certificate or refund of creditable

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation x------------------------------------------------------------------------------------------x input tax due or paid attributable to such sales, except transitional input tax, to the extent that such input tax has not been applied against output tax: ... Provided, further, That where the taxpayer is engaged in zero-rated or effectively zero-rated sale and also in taxable or exempt sale of goods or properties or services, and the amount of creditable input tax due or paid cannot be directly and entirely attributed to any one of the transactions, it shall be allocated proportionately on the basis of the volume of sales: ... [Emphasis and underscoring supplied] Contrary to the CIR's position, there is nothing in the afore-quoted Section 112(A) of the NIRC of 1997, as amended, which requires that the input taxes subject of a claim for refund be directly attributable to zero-rated sales or effectively zero- rated sales. The law merely states that the creditable input VAT should be attributable to zero-rated or effectively zero-rated sales. The use of the phrase "directly attributable" strictly relates to a situation involving taxpayers having both zero-rated or effectively zero-rated sale as well as taxable or exempt sale of goods, properties or services and the creditable input VAT cannot be directly attributed to any of such transactions. In such cases, the input taxes shall be allocated proportionately on the basis of the volume of sales. Input taxes that bear a direct or indirect connection with a taxpayer's zero-rated sales satisfy the requirement of the law. 11 o It is a well-recognized rule that where the law does not distinguish, courts should not distinguish. Ill Moreover, Philippine courts do not take judicial notice of foreign judgments and laws. They must be proven as fact under our rules on evidence. 112 This also applies to the European VAT system mentioned by the CIR. Equally untenable is the CIR's position that to be creditable, the input tax must come from the purchases of goods that form part of the finished product of the taxpayer or the same must be directly used in the chain of production. Such position is contrary to Section 110 of the 1997 NIRC, �a~/ amended, which, in relevant part, states: ~" �11 Commissioner ofInternal Revenue vs. Maersk Global Service Centres (Philippines) Ltd.. CTA EB No. 2260,29 July 2021. 111 ..\landanas vs. Ochoa. Jr.. G. R. Nos. 199802 and 208488. July 3. 2018. 112 Genevit>ve Rosa/ Arre::a vs. Tetsushi Toyo. Local Civil Registrar of Q.C.. et a/.. G.R. No. 213198. I July 2019.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation X------------------------------------------------------------------------------------------X Furthermore, the CIR's reliance on Commissioner of Internal Revenue vs. Coral Bay Nickel Corporation113 is inaccurate. There is nothing in the said decision that states or implies that only those attributable to Coral Bay's zero-rated sales are allowed as valid input VAT. From the foregoing, We find the CIR's assertions bereft of merit. Thus, the Third Division did not err in partially granting Trans-Asia's claim for refund or issuance ofTCC, viz.: Since there are Both Zero-Rated or Effectively Zero-Rated Sales and Taxable Sales, the Said Amount of P335,412,034.00 Shall be Proportionately Allocated on the Basis of Sales Volume To reiterate, the eighth requisite is to the effect that the input taxes claimed are attributable to zero-rated or effectively zero-rated sales. However, where there are both zero-rated or effectively zero-rated sales and taxable or exempt sales, and the input taxes cannot be directly and entirely attributable to any of these sales, the input taxes shall be proportionately allocated on the basis of sales volume. In this case, for the subject periods of the claim, there exists a zero-rated or effectively zero-rated sales and taxable sales. Specifically, for the 1st quarter of TY 2015, Petitioner reported total sales in the amount of 1"207,534,322.34; while for the 2nd quarter ofTY 2015, Petitioner declared its sales in the total amount of P148,022,800.15. In other words, Petitioner had sales for the said periods in the aggregate amount ofP355,557,122.49. Considering that this Court finds that only the amount of P17,119,466.49 represents Petitioner's valid zero-rated sales vis-a-vis the aggregate sales amount of !"355,557,122.49, the said amounts shall be used as basis for the allocation of the valid input VAT in the amount of P335,412,034.00, determined as follows: Valid Zero-Rated or Effectively f'17, 119,466.49 Zero-Rated Sales Divide by Aggregate Sales for the 7 355,557,122.49 Subject Periods Multiply by the Valid Input VAT X 335,412,034.00 Substantiated Input VAT Pl6,149,514.98 attributable to Valid Zero-Rated Sales v 11 'CTAEBNos.l735and 1737(CTACaseNo.8905).18July2019.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation X------------------------------------------------------------------------------------------X Thus, for purposes of the eighth requisite, the input VAT attributable to the valid zero-rated or effectively zero-rated sales is only in the amount of P16,149,514.98. [Emphasis and underscoring supplied] The denial of Trans-Asia's claim for refund does not constitute unjust enrichment. Trans-Asia argues that the Government is duty-bound to grant the refund on the equitable ground of unjust enrichment. This Court differs. The statutory basis for unjust enrichment is found m Article 22 of the Civil Code, which provides: Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. Under the foregoing provision, there is unjust enrichment when (1) a person is unjustly benefited; and {2) such benefit is derived at the expense of or with damages to another.114 In Car Cool Philippines, Inc. us. Ushio Realty & Development Corporation, 11 5 the Supreme Court said that there is unjust enrichment when a person unjustly retains a benefit to the loss of another, or when a person retains money or property of another against the fundamental principles of justice, equity and good conscience. There is no unjust enrichment when the person who will benefit has a valid claim to such benefit.116 In Team Energy Corporation us. Commissioner of Internal Revenue, 117 the Supreme Court made a pronouncement regarding unjust v enrichment vis-a-vis Team Energy Corporation's claim for refund of input VAT, vrz; 114Government 5iervice Insurance System vs. Commission on Audit. G.R. No. 162372 (Resolution), II September 2012. 694 SCRA SI8-S28, citing Tamio vs. Ticson. 48S Phil. 434. 443 (2004). '" G.R. No. 138088. 23 Janoary 2006. SIS SCRA 376-386. III>Jd. "'G.R. Nos. 197663 and 197770. 14 March 2018.

DECISION CTA EB Nos. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation vs. Commissioner of Internal Revenue and Commissioner of Internal Revenue vs. Trans-Asia Renewable Energy Corporation x------------------------------------------------------------------------------------------x Team Energy's contention that denial of its duly proven refund claim would constitute unjust enrichment on the part of the government is misplaced. "Excess input tax is not an excessively, erroneously, or illegally collected tax." A claim for refund of this tax is in the nature of a tax exemption, which is based on Sections 110 (B) and 112 (A) of 1997 NlRC, allowing VAT-registered persons to recover the excess input taxes they have paid in relation to their zero-rated sales. "The term 'excess' input VAT simply means that the input VAT available as [refund] credit exceeds the output VAT, not that the input VAT is excessively collected because it is more than what is legally due." Accordingly, claims for tax refund/ credit of excess input tax are governed not by Section 229 but only by Section 112 of the NIRC. A claim for input VAT refund or credit is construed strictly against the taxpayer. Accordingly, there must be strict compliance with the prescriptive periods and substantive requirements set by law before a claim for tax refund or credit may prosper. The mere fact that Team Energy has proved its excess input VAT does not entitle it as a matter of right to a tax refund or credit.... [Emphasis and underscoring supplied] In view of the foregoing, the denial of Trans-Asia's claim for full refund of its unutilized excess input VAT does not equate to unjust enrichment. Finally, Trans-Asia avers that the assailed Decision will cause irreparable economic injury not only to Trans-Asia but to the power generation industry in general. This Court finds Trans-Asia's argument specious. Injury is considered irreparable if there is no standard by which its amount can be measured with reasonable accuracy. 118 The injury must be such that its pecuniary value cannot be estimated, and thus, cannot fairly compensate for the loss.ll9 Here, Trans-Asia has not proven such a case of irreparable injury. Aside from its bare allegations that the assailed Decision will adversely affect its business and the power generatio~ j R No L-13555, May 30, 1962. \"' 119Republic vs. Regional Trial Court ofMandaluyong City-Branch 208, CTA AC No. 177 (Civil Case No. MCOS-2882), 18 September 2018.

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY ENBANC TRANS-ASIA RENEWABLE CTA EB NO. 2314 ENERGY CORPORATION (CTA Case No. 9516) (NOW KNOWN AS "GUIMARAS WIND CORPORATION"), Petitioner, - v e rs u s - COMMISSIONER OF INTERNAL REVENUE, Respondent. x-------------------------------------x COMMISSIONER OF CTA EB NO. 2347 INTERNAL REVENUE, (CTA Case No. 9516) Petitioner, Pr es e n t: - versus- DEL ROSARIO, �L, TRANS-ASIA RENEWABLE CASTANEDA, JR., ENERGY CORPORATION UY, (NOW KNOWN AS RINGPIS-LIBAN, "GUIMARAS WIND MANAHAN, CORPORATION"), BACORRO-VILLENA, MODESTO-SAN PEDRO, Respondent. REYES-FAJARDO, and, CUI-DAVID, J1. Promulgated: X- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - J - - - - - - - - - - X

DISSENTING OPINION CTA EB NOS. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") v. CIR and CIR v. Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") x------------------------------------------------------------------x DISSENTING OPINION BACORRO-VILLENA, L.: With all due respect to my esteemed colleague, Associate Justice Lanee S. Cui-David, I register my dissent to the ponencia as it affirms the partial grant of Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation")'s (Trans-Asia's) claim for refund in the amount of 1"16,149.514.98 on the ground that Trans-Asia failed to establish that it is engaged in zero-rated sales for the entire period of the claim for refund or tax credit (i.e., from 01 July 2014 to 30 June 2015). The ponencia ruled that registration as a Renewable Energy (RE) Developer and the issuance of the corresponding Department of Energy (DOE) Certification to that effect are not enough to enjoy the incentive of Value-Added Tax (VAT) zero-rating on sales of renewable sources of energy under Section 15(g)' of Republic Act (RA) No. 9513 or the Renewable Energy Act of 2008, in relation to Section w8(B)(7)2 of the National Internal Revenue Code (NIRC) of 1997, as amended. Since Trans-Asia did not procure and submit a DOE Certificate of Endorsement on a per transaction basis, relative to its sales of renewable energy covering the period of claim, as required under Section 18(C)3, Rule 5. Part III of the implementing rules and regulations4 (IRR) of RA 9513, it is not entitled to VAT zero-rating, perforce, its refund claim under RA 9513 must fail. Nonetheless, the ponencia went on to state that, even if Trans-Asia has failed to comply with the requirements for VAT zero-rating under RA/ Sec. 15. Incentives for Renewable Energy Projects and Activities.- ... (g) Zero Percent Value-Added Tax Rate.- ... 2 Sec. 108. Value-Added Tax on Sale ofServices and Use or Lease ofProperties.- ... (B) Transactions Subject to Zero Percent {0%) Rate.- ... (7) Sale of power or fuel generated through renewable sources of energy such as, but not limited to, biomass, solar, wind, hydropower, geothermal, ocean energy, and other emerging energy sources using technologies such as fuel cells and hydrogen fuels. Sec. 18. Conditions for Availment ofIncentives and Other Privileges.- C. Certificate ofEndorsement by the DOE RE Developers, and manufacturers, fabricators, and suppliers of locally-produced RE equipme,nt shall be qualified to avail of the incentives provided for in the Act only after securing a Certificate of Endorsement from the DOE, through the REMB, on a per transaction basis. (Italics in the original text; emphasis supplied.) 4 Department of Energy (DOE) Department Circular No. DC2009-05-0008.

DISSENTING OPINION CTA EB NOS. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") v. CIR and CIR v. Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") X----------------------------------------------------------------- -X 9513, its sales for the month of June 2015 still qualify for VAT zero-rating under RA 9136 or the Electric Power Industry Reform Act of2001 (EPIRA) as it presented to the Court in Division a Certificate of Compliance (COC), which was conferred by the Energy Regulatory Commission (ERC) on 01 June 20155, to prove that it is a generation company and it is engaged in zero-rated sales of power generated from renewable sources of energy. On this score, the ponencia held that Trans-Asia's claim for refund is not only based on RA 9513, but also on the EPIRA. I respectfully beg to differ. For the reasons essayed below, I submit that Trans-Asia is entitled to the refund of input VAT attributable to its zero-rated sales for the entire period of claim under RA 9153 and its IRR. A DEPARTMENT OF ENERGY (DOE) CERTIFICATE OF ENDORSEMENT (COE) IS NOT REQUIRED FOR VALUE-ADDED TAX (VAT) ZERO- RATING PURPOSES. It is undisputed that Trans-Asia is a Renewable Energy (RE) Developer. As shown in its Amended Articles of Incorporation (AOI), Trans- Asia's primary purpose is to develop and utilize renewable sources of energy and pursue new, clean and energy efficient projects.6 Section 4(pp) of RA 9513 defines an REDeveloper as "individualis or a group of individuals formed in accordance with existing Philippine Laws engaged in the exploration, development and utilization of RE resources and actual operation of RE systems/facilities." Under Section 15(g) of the same law, REDevelopers are entitled to the VAT zero-rating treatment of its sale of fuel or power generated from renewable sources of energy and its purchases of local supply of goods, properties and services related to the development, construction and � installation of its power facilities. The pertinent provision of RA 9513 states/ Energy Regulatory Commission (ERC) Certificate of Compliance (COC) No. I5-06-M- I IV dated OJ June 2015, Exhibit "P-4", Division Docket, Volume II, p. 706. 6 Exhibit "P-1-a", id., p. 675.

DISSENTING OPINION CTA EB NOS. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") v. CIR and CIR v. Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") X------------------------------------------------------------------ X CHAPTER VII GENERAL INCENTIVES Sec. 15. Incentives for Renewable Energy Projects and Activities. - RE Developers of renewable energy facilities, including hybrid systems, in proportion to and to the extent of the RE component, for both power and non-power applications, as duly certified by the DOE, in consultation with the BOI, shall be entitled to the following incentives: (g) Zero Percent Value-Added Tax Rate. - The sale of fuel or power generated from renewable sources of energy such as, but not limited to, biomass, solar, wind, hydropower, geothermal, ocean energy and other emerging energy sources using technologies such as fuel cells and hydrogen fuels, shall be subject to zero percent (o%) value-added tax (VAT), pursuant to the Nationallnternal Revenue Code (NIRC) of 1997, as amended by Republic Act No. 9337� All RE Developers shall be entitled to zero-rated value added tax on its purchases of local supply of goods, properties and services needed for the development, construction and installation of its plant facilities. This provision shall also apply to the whole process of exploring and developing renewable energy sources up to its conversion into power, including but not limited to the services performed by subcontractors and/or contractors.' To avail of the zero-rated VAT incentive, a taxpayer must, however, comply with the conditions laid down under Section 18 of the lRR of RA 9513, vzz: Sec. 18. Conditions for Availment of Incentives and Other Privileges.- A. Registration/Accreditation with the DOE For purposes of entitlement to the incentives and privileges under the Act, existing and new RE Developers, and manufacturers, fabricators, and suppliers of locally-produced RE equipment shall register with the DOE, through the Renewable Energy Management Bureau (REMB). The following certifications shall be issuey' 7 Emphasis supplied.

DISSENTING OPINION CTA EB NOS. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") v. CIR and CIR v. Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") X----------------------------------------------------------------- -X incentive prior to filing of application for issuance of the certificate of ITH entitlement with the BOI; and b) Duty-Free Importation of RE Machinery, Equipment and Materials including control and communication equipment, within the first ten (10) years from the issuance of the BOI certificate of registration. The enterprise shall secure from the DOE-REMB a Certificate of Endorsement that the enterprise is in good standing for the availment of this incentive. The Endorsement shall be on a per transaction basis. "Per transaction" means per application for incentives. 9� The enterprise shall also be entitled to the following incentives under R.A. 9513 to be administered by appropriate government agencies subject to the Rules and Regulations of the respective administering government agencies. e) Zero-Percent Value-Added Tax Rate The sale of power generated by the enterprise as well as its purchases of local supply of goods, properties and services needed for the development, construction and installation of its plant facilities and the whole process of exploration and development of RE sources up to its conversion into power shall be subject to zero percent value-added tax pursuant to the NIRC." It is clear from the foregoing that the DOE Certificate of Endorsement is only required in order for Trans-Asia to enjoy the Income Tax Holiday (ITH) and the duty-free incentives. Such requirement is not needed for VAT zero-rating purposes. Hence, the non-presentation of the same should not bar Trans-Asia from applying for a refund of its excess and unutilized input VAT attributable to its zero-rated sales under RA 9513. To my mind, absent a categorical provision in the IRR of RA 9513 requiring the submission ofa DOE Certificate of Endorsement to avail of all the incentives provided for in RA 9513, practical considerations dictate that such requirement should apply only when relevant to the incentive availed of by the RE Developer. Although there is nothing in RA 9513 that prohibits the DOE from prescribing additional requirements , ) I from RE Developers to avail of the incentives pursuant to the said law, II Emphasis and underscoring supplied.

DISSENTING OPINION CTA EB NOS. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") v. CIR and CIR v. Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") X------------------------------------------------------------------ X must also be considered that requiring an RE Developer, such as Trans-Asia, to submit a DOE Certificate of Endorsement on a per transaction basis (i.e., for VAT zero-rating purposes) would be impractical and imposes an unnecessary burden upon the RE Developer. It is also worth mentioning that the DOE has recently issued Department Circular (DC) No_ DC2021-12-oo.p'\ which amended Section 18(C) of the IRR of RA 9513 to state that, as a rule, RE Developers are automatically qualified to avail of the incentives provided for in RA 9513 after securing a DOE Certificate of Registration, viz: Sec. 18. Conditions for Availment of Incentives and Other Privileges. - C. DOE ENDORSEMENT FOR AVAILMENT OF INCENTIVES AND DUTY-FREE IMPORTATIONS OF MACHINERY, EQUIPMENT, AND MATERIALS RE Developers and manufacturers, fabricators, and suppliers oflocally- produced RE equipment shall be AUTOMATICALLY qualified to avail of the incentives provided for in the Act, OTHER THAN THE INCENTIVE OF DUTY-FREE IMPORTATION OF QUALIFIED MACHINERY, EQUIPMENT, MATERIALS, PARTS AND COMPONENTS, after securing a Certificate of Registration from the DOE. RE DEVELOPERS THAT IMPORT RE EQUIPMENT, EQUIPMENT, MATERIALS. PARTS AND COMPONENTS SHALL SECURE A CERTIFICATE OF ENDORSEMENT FROM THE POE, THROUGH THE REMB. ON A PER IMPORTATION BASIS.'' The foregoing amendment bolsters the position that an RE Developer is not required to submit a DOE Certificate of Endorsement to avail the VAT zero-rating incentive_ There being no categorical provision in Section 18(C), as originally worded, that the submission of a DOE Certificate of Endorsement applies to all the incentives provided under RA 9513, the implication therefore of th/" 12 PRESCRIBING AMENDMENTS TO SECTIONS 13(E) AND IS(C) OF DEPARTMENT CIRCULAR NO. DC2009-05-0008, ENTITLED RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9513, OTHERWISE KNOWN AS "THE RENEWABLE ENERGY ACT OF 2008". 13 Underscoring supplied.

DISSENTING OPINION CTA EB NOS. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") v. CIR and CIR v. Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") X------------------------------------------------------------------ X said amendment is not to remove such requirement but instead to clarify and confirm the lack of intention to prescribe the same. Furthermore, based on the DOE 2021 Citizen's Charter (2nd Edition)'\ the Renewable Energy Management Bureau (REMB) of the DOE has no existing mechanism for the issuance of a Certificate of Endorsement for VAT zero-rating. The REMB only issues three (3) types of certifications, namely: (1) Endorsement to other Concerned National Government Agencies and Local Government Units; (2) Endorsement to Purchase or Transfer or Move Explosives; and, (3) Certificate of Endorsement for Duty-Free Importation Certification.'5 Given that Section 18(C) of the IRR of RA 9513 specifically states that it is the REMB which shall issue the Certificate of Endorsement and that the REMB does not issue such a certification for VAT zero-rating, Trans-Asia and all other RE Developers cannot be expected to secure the said requirement because the law does not require the impossible.'6 TRANS-ASIA'S CLAIM FOR REFUND IS BASED ON REPUBLIC ACT (RA) NO. 9513, AND NOT ON RA 9136 OR THEEPIRA. I likewise submit that Trans-Asia cannot be required to comply with the requirements under the EPIRA and the related provisions of RR No. 16- 2005'7, particularly to secure a COC from the ERC, to be entitled to VAT zero-rating on its sale of energy generated from renewable sources because, as the records confirm, its VAT refund claim is anchored on Section 15(g) of RA 9513, in relation to Section w8(B)(7) of the NIRC of 1997, as amended, and not on the EPIRA. In fact, in its administrative claim filed with the BIR and judicial claim before this Court, Trans-Asia makes no reference to any provision of the EPIRA in invoking its entitlement to VAT zero-rating. In the cases of Team Energy Corporation (formerly: Mirant Pagbilao Corporation and Southern Energy Quezon, Inc.) v. Commissioner of Internal Revenue'8 (Team Energy 2018) and Commissioner of Internal Revenue v. Team Energy Corporation (formerly Mirant Pagbilao Corporation)'9 (Teaj/ 14 <https://www.doe.gov.ph/sites/default/files/pdf/citizen charter/2021-citizen-charter-2nd- edition.pdf> (Last accessed on 02 May 2022). " Id. 16 Biraogo v. The Philippine Truth Commission o/2010, G.R. No. 192935,07 December 2010. 17 Supra at note 9. 18 G.R. No. 197663, 14March2018. 19 G.R. No. 230412,27 March 2019.

DISSENTING OPINION CTA EB NOS. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") v. CIR and CIR v. Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") X------------------------------------------------------------------ X Energy 2019), Trans-Asia correctly pointed out that the Supreme Court has made a distinction between a claim for refund of input VAT under the EPIRA and that made under the NIRC of 1997, as amended, insofar as the EPIRA requirement of securing a COC from the ERC is concerned, viz: Team Energy 2018 Indeed, the requirements of the EPIRA law would apply to claims for refund filed under the EPIRA. In such case, the taxpayer must prove that it has been duly authorized by the ERC to operate a generation facility and that it derives its sales from power generation. This was the thrust of this Court's ruling in Commissioner of Internal Revenue v. Toledo Power Company (TPC). In Toledo, the Court of Tax Appeals granted Toledo Power Company's (TPC) claim for refund of unutilized input VAT attributable to sales of electricity to NPC, but denied refund of input VAT related to sales of electricity to other entities for failure of TPC to prove that it was a generation company under the EPIRA. This Court held that TPC's failure to submit its ERC Certificate of Compliance renders its sales of generated power not qualified for VAT zero-rating. This Court, in affirming the Court of Tax Appeals, held: Section 6 of the EPIRA provides that the sale of generated power by generation companies shall be zero-rated. Section 4 (x) of the same law states that a generation company "refers to any person or entity authorized by the ERC to operate facilities used in the generation of electricity." Corollarily, to be entitled to a refund or credit of unutilized input VAT attributable to the sale of electricity under the EPlRA, a taxpayer must establish: (1) that it is a generation company, and (2) that it derived sales from power generation. In this case, when the EPIRA took effect in 2001, TPC was an existing generation facility. And at the time the sales of electricity to CEBECO, ACMDC, and AFC were made in 2002, TPC was not yet a generation company under EPlRA. Although it filed an application for a COC on june 20, 2002, it did not automatically become a generation company. It was only on june 23, 2005, when the ERC issued a COC in favor ofTPC, that it became a generation company under EPIRA. Consequently, TPC's sales of electricity to CEBECO, ACMDC, and AFC cannot qualify for VAT zero-rating under the EPIRA. (Emphasis supplied) Here, considering that Team Energy's refund claim is premised on Section w8rBH3l of the 1997 NIRC. in relation to NPC's charter. the requirements under the EPIRA are inapplicable. To qualify its electricity sale to NPC as zero-rated, Team Energy needs only to show that it is a VAT-registered entity and that it has complied with the invoiciny

DISSENTING OPINION CTA EB NOS. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") v. CIR and CIR v. Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") X------------------------------------------------------------------ X requirements under Section w8(B\(J\ of the 1997 NIRC. in conjunction with Section 4.108-1 of Revenue Regulations No. 7-95.'0 Team Energy 2019 Petitioner's argument against the grant of tax refund or tax credit in favor of the respondent is mainly hinged on respondent's lack of COC from the ERC. Petitioner insisted that without a COC, respondent may not be considered a generation company under the EPIRA, and therefore, its sales of generated power to the NPC may not be subject to zero percent VAT rate and enjoy the benefits under Section w8(B)(3) of the Tax Code as would entitle it to claim a tax refund or tax credit of its unutilized input VAT attributable to its sale of electricity to NPC. According to the petitioner, its assertion that COC is indispensable to a claim for refund finds support in the case decided by the CIA entitled, Toledo Power Company v. Commissioner ofInternal Revenue. Petitioner's contention lacks merit. Petitioner was less than truthful when he lifted only portions of the CIA Decision in Toledo that were favorable to him. In the said case, while it may be true that the CIA ruled that the failure of Toledo to submit its approved COC from the ERC cannot qualify its sales of generated power for VAT zero-rating under the EPIRA, the same decision likewise granted Toledo's claim for refund ofunutilized input VAT attributable to its sales of electricity to NPC under Section w8(B)(3) of the Tax Code. In short, the decision differentiated the requirements for a claim for refund under the EPIRA, and a claim for refund based on Section w8(B){3) of the Tax Code. In Commissioner of Internal Revenue v. Toledo Power Company which affirmed the said CIA decision, this Court essentially held that the requirements of the EPIRA must be complied with only if the claim for refund is based on EPIRA.... Given that respondent in this case likewise anchors its claim for tax refund or tax credit under Section wSIB\(3\ of the Tax Code, it cannot be required to comply with the requirements under the EPIRA before its sale of generated power to NPC should qualify for VAT zero-rating. Section w8(B)(3) of the Tax Code in relation to Section 13 of the NPC Charter, clearly provide that sale of electricity to NPC is effectively zero-rated for ~~T purposes...~ 20 Supra at note 18; Citations omitted, emphasis and italics in the original text, and underscoring supplied. 21 Supra at note 19; Citations omitted and underscoring supplied.

DISSENTING OPINION CTA EB NOS. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") v. CIR and CIR v. Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") X------------------------------------------------------------------ X Based on the foregoing pronouncements, where the zero-rated VAT incentive invoked is not based on the EPIRA, the taxpayer- claimant cannot be required to comply with the requirements under the EPIRA and the related provisions of RR No. 16-2oo5", particularly to secure a COC from the ERC, to be entitled to VAT zero-rating on the sale of power or fuel generated through renewable sources of energy. Accordingly, since the subject claim for refund of input VAT attributable to zero-rated sales is based on Section 15(g) of RA 9513, in relation to Section w8(B)(7) of the NIRC of1997, as amended, Trans-Asia, as an RE Developer, needs only to show that it has complied with the conditions laid down under RA 9513 and its IRR23 in order to avail of the VAT zero-rating incentive, irrespective of the requirements under the EPIRA. Clearly, the Supreme Court's ruling in Commissioner of Internal Revenue v. Toledo Power Compan/4 (Toledo Power), cited in the ponencia, that a taxpayer-claimaint's failure to submit its approved COC from the ERC cannot qualify its sales of generated power for VAT zero-rating under the EPIRA is not applicable to the present case because, in the first place, Trans- Asia's claim for refund is not based on the EPIRA. Instead, Trans-Asia's entitlement to the VAT zero-rating incentive is based principally on RA 9513 and its IRR. Again, applying by analogy Team Energy 2018 and Team Energy 2019, Trans-Asia need not submit its COC from the ERC as a condition for availing the VAT zero-rating incentive as its claim for refund is based on RA 9513 and not on the EPIRA. EVEN ASSUMING ARGUENDO THAT TRANS-ASIA IS NOT ENTITLED TO VALUE-ADDED TAX (VAT) ZERO- RATING UNDER REPUBLIC ACT (RA) NO. 9513, IT IS NEVERTHELESS ENTITLED TO VAT-ZERO RATING UNDER RA 9136 OR THE EPIRA FOR THE ENTIRE PERIOD OF CLAIM/ 22 Supra at note 9. 23 Supra at note 4. 24 G.R. No. 196415, 02 December 2015.

DISSENTING OPINION CTA EB NOS. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") v. CIR and CIR v. Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") X------------------------------------------------------------------ X In any event, even assuming that a taxpayer-claimant (that is both an RE Developer and a generation company) is required to prove that it is so authorized by the ERC to operate facilities used in the generation of electricity (in accordance with the EPIRA) for VAT zero-rating purposes, I also submit that Trans-Asia has nevertheless complied with such requirement as its COC application should be considered as "deemed approved" by the ERC as of 22 September 2014 even if the ERC issued its COC only on 01 June 2015. Section 1, Article III of the Revised COC Rules provides that a duly filed COC application shall be deemed provisionally approved if the ERC does not issue a COC within the 6o-calendar day period, viz: ARTICLE III Requirements and Procedures Sec. 1. In General. - All entities owning or if applicable, operating Generation Facilities shall apply for the issuance of a COC with the ERC. Provided all the requirements shall have been complied with including the technical inspection on the facilities, the ERC shall notify the entities with Generation Facilities of its action within sixty {6o} calendar days from the conduct of the said technical inspection. In the event the ERC requires the submission of additional information, or orders the postponement of final action on an application on reasonable grounds, the 6o-day period shall be reckoned from the date of complete submission of the required information or the lifting of the suspension of the final action on the application. The ERC shall deny the application should the applicant fail to submit all the information and other requirements within the period allowed, without prejudice to the re-filing of such application. Ifan applicant has filed its application in accordance with the preceding paragraph but has not been issued a COC within the 6o- calendar day period, its application shall be deemed provisionally approved.' 5 As stated in the ERC's Certification dated 01 August 2014 26 Trans-Asia , filed its application for the issuance of a COC with the ERC for its 54 MW San Lorenzo Wind Farm Energy Power Project on 24 July 2014. However, it took almost a year 0fo1r 5th�./e ERC to issue Trans-Asia's COC No. 15-06-M-nV, that is, on 01 June 2 25 Emphasis supplied. 26 Exhibit "P-8", Division Docket, Volume II, p. 717.

DISSENTING OPINION CTA EB NOS. 2314 and 2347 (CTA Case No. 9516) Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") v. CIR and CIR v. Trans-Asia Renewable Energy Corporation (now known as "Guimaras Wind Corporation") x------------------------------------------------------------------x Given that there is nothing on record that will show that the ERC required Trans-Asia to submit additional documents or information and that the former did not serve any written notification to postpone its final action on the latter's application, Trans-Asia must have duly filed its COC application but has not been issued a COC within the aforesaid the 6o- calendar day period. As such, Trans-Asia's COC application may be deemed provisionally approved as of 22 September 2014. that is, on the 6o1h day from the ERC's receipt thereof. Thus, even as Trans-Asia was able to secure a COC from the ERC in its favor, only on 01 June 2015, or after the commencement of its commercial operations on 27 December 2014 27 the provisional approval of its COC , application as of 22 September 2014 served to cover the period prior to the COC's issuance for VAT zero-rating purposes. TRANS-ASIA HAS ESTABLISHED THAT ITS DECLARED SALES FOR THE ENTIRE PERIOD OF CLAIM QUALIFY FOR VAT ZERO-RATING UNDER REPUBLIC ACT (RA) NO. 9513. As to whether Trans-Asia has complied with the requirements under RA 9513 and its IRR for its sales of power or fuel generated from a renewable of energy, such as wind, to be treated as VAT zero-rated, the records confirm that Trans-Asia has done so because, as established earlier, it only needs to submit the first two (2) documentary requirements enumerated in Section 18 of the IRR of RA 9513. First, Trans-Asia complied with the requirement to present proof of registration with the DOE, as evidenced by its DOE Certificate of Registration No. WESC 2009-10-oo9 dated 23 October 2009 28 certifying that , it is an REDeveloper of Wind Energy Resources located in the Municipality of San Lorenzo, Guimaras. The said DOE Certificate of Registration provides that Trans-Asia's registration as an RE Developer took effect on 23 October 2009. Second, Trans-Asia satisfied the requirement to submit proof of � registration with the BOI, as evidenced by its BOI Certificate of Registratio/ 27 Exhibit "P-10", id., p. 720. 28 Exhibit "P-2", id., p. 697.

Want an analysis of this document?

Ask ASG Legal AI to summarize it, compare it with other rulings, or explain how it applies to your situation — it researches from this same library.