CTA Case No. 5590 (Decision)

. REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY LAZl BAY RESOURCES DEVELOPMENT, INC., Petitioner, - ver:n15 �� C.T.A. CASE NO. 5590 COMMl.S~IONER Oft lNtEllNAl. REVENUE, a Promulgated: JAN 0 ~-� 200J1~j?~~ ll r. ~ Respondel1t. X - X ~ ~ ~ ~1 a - - - - ..... :o:. ,... r. !.. - .,. �iJ --- - - - ....... "' - - - - ..:. .: - - """ :" - - - - - - - - - - - - - -: :. - - - - - - -� DECISI()N This i~ tll'Jetition seeking for the issuance of a tax credit certificate in the amount '... . of Pl2,i 72,688.95 allegedly representitig unutilized input tax credits for the quarters ended M::irch 31, 1996, June 30, 1996, September 30, 1996 and December 31, 1996. The antecedent facts follow. Petitioner is a domestic corporation existing under and by virtue of Philippine laws, with principal office located at Rm. 107, FCC Building, 119 Rada Street, Makati City. It is engaged in the mining business which includes the exploration, development and operation of mining properties for purposes of commercial production of limestone for export sale. On January. 26, 1996, Petitioner was duly registered with the Board of Investments (BOI) as a 'new producer of limestone with a non-pioneer status and was issued Certificate of Registration No. EP 95-369 (Exh. LLL). Petitioner likewise registered with the Bureau of Internal Revenue (BIR) as a value-added tax (VAT) 7t1

DECISION- CTA CASE NO. 5590 PAGE2 taxpayer on February I, 1996 and was issued Certificate of Registration RDO Control No. 96-047-005989 (Exh. A). For the year 1996, Petitioner filed its quarterly VAT returns, all of which showed that it did not engage in commercial operations (Exhs. B, D, F, H). On March 19, 1998, however, Petitioner filed amended VAT returns likewise covering the four quarters of 1996, this time reflecting its input tax payments on local purchases of taxable goods and services as well as on its importation of capital goods, detailed as follows: QTR. LOCAL IMPORTATION TOTAL INVOLVED EXH. PURCHASES INPUT TAX P2,820, 160.0 I 151 Qtr. c p 3,517,016.22 1,983,393 .93 p 3,517,016.22 K 2"d Qtr. 5. I06.805.86 4,438,706.66 3'd Qtr. E 1,618,546.65 3,867,840.81 4'h Qtr. �2,210,352.80 8.852.179.59 G .I ,684,446.88 �20,615,143.28 I 3.745.373 .73 Tot a I �10,165,383.48 On March 27, 1998, pursuant to BIR Revenue Audit Memorandum Order No. 2- 93, Petitioner filed with the One-Stop Inter-Agency Tax Credit and Duty Drawback Center of the Department of Finance separate applications for tax credit of input taxes paid for the four quarters of 1996 in the aggregate amount ofP20,675,761 .28 (Exhs. J, K, L, M). It was observed that the total inp4t tax for the four quarters of 1996 as shown in the VAT returns in the total amount ()f P>2'0,6' 7~'5,743.28 is lesser as compared to the total ~ input tax as shown iQ. the separate applications Jor tax credit (P20,675,761.28). Petitioner cites Section 100, in relation to Section 106, of the Tax Code, as the basis for its claim for refund, the pertinent provisions of which are as follows: "SEC. 100. Value-added lax on sale ofgoods. -(a) Rate and base oflax. - There shall be levied, assessed and collected on every sale, barter or exchange of goods, a value-added tax equivalent to 10% of the gross selling price or gross value in money of the goods sold, bartered or

DECISION- CTA CASE NO. 5590 PAGE3 exchanged, such tax to be paid by the seller or transferor: Provided, That the following sales by VAT-registered persons shall be subject to 0%: (1) Export sales; and (2) XXX "Export Sales" means the sale and shipment or exportation of goods from the Philippines to a foreign country, irrespective of any �hipping arrangement that may be agreed upon which may influence or determine the transfer of ownership of the goods so exported, or foreign currency denominated sales. "Foreign currency denominated sales" means sales to nonresidents of goods assembled or manufactured in the Philippines, for delivery to residents in the Phi.lippines and paid for in convertible foreign currency remitted through the banking system in the Philippines. SEC. 106. Rej!{njls or lax credits ofinput tax.- (a) Export Sales. - An exporter who is a VAT-registered person may within two years from the date of exportation, apply for the issuance of a tax credit certificate or refund ofthe input tax attributable to the goods exported, to the extent that such input tax has not been applied to output tax and upon presentation of proof that the foreign exchange proceeds has been accounted for in accordance with the regulations of the Central Bank of the Philippines." XXX As there was no action on the part of Respondent and the two-year prescriptive period was about to expire, the instant P e t i t i. o n _was filed on March 31, 1998. Petitioner : ' .-.) .,�,, prayed for the issuance of a tax credit ~ertifi~~t~ in the total amount ofP20,675,743.28. .� � Respondent then filed his Answer on May 4, 1998 and raised the following Special and Affirmative Defenses: "5. Pursuant to Section 106 (now Section 112 of the NIRC of 1997) a VAT-registered person may apply for the issuance of a tax credit certificate or refund of input taxes paid on capital goods imported or locally purchased, to the extent that such input taxes have not been applied against output taxes. The application may be made only within two (2) years after the close of the taxable quarter when the importation or purchase was made;

DECISION- CTA CASE NO. 5590 PAGE4 6. It is therefore, the burden of herein petitioner to prove by convincing evidence that it is entitled to the issuance of a tax credit cettificate or refund of the alleged input taxes paid on capital goods locally purchased in accordance with the aforestated Section 112 of the NIRC of 1997; 7. Well-settled is the jurisprudence that claims for refund are construed strictly against the claimant, the same being in the nature of exemption from taxes (Commissioner of Internal Revenue vs. Ledesma, 31 SCRA 95,� Manila Electric Co. vs. Commissioner of Internal Revenue, 67 SCRA 35); 8. It is incumbent upon petitioner to show compliance with provisions of Sections 204, 112 and 229 of the NIRC of 1997." _. On July 5, 2000, Petitioner filed an "Urgent Motion for Leave of Court to Amend , Petition for Review and Manift';.s;ation" on the ground that on June 5, 2000, Petitioner received from the Department of Finance Tax Credit Certificate No. SN 023132 in the amount of P22,496,039.39 representing Petitioner's unutilized input VAT for local purchases of goods and services for the calendar years ended December 31, 1996 and December 31, 1997 (p. 246, CTA Records), broken down as follows: 1996: p 8,500,072.33 1997: . 13.995,967..06 � P~~A96.039.39 On the other hand, the Department of F~ i'.nance, through a letter dated March 16, . 2000, granted authori. ty to the Bureau of. Cust' oms to issue a tax credit certificate on . . value-added tax payments�111ade Oil Petitioner'~ importation for the period Jariuary 199l '. ~ .�:.;:: . .; ' to December 1997 in the amount ofP17,491,879.49 (p. 247, CTA Records) . the Bureau of Customs, however, failed to act on the said letter. �'�

DECISION- CTA CASE NO. 5590 PAGE5 During the hearing on July 10, 2000, the Court denied Petitioner's Moticn for Leave of Court to Amend Petition for Review but required the latter to submit the Tax CreJit Memo. On A �gust 101 2000--,.. Respondent's counsel manifested that since the Department PS,500!072.:;3 for taxab ~!.( 1996, leaving a balance in the amount of P12,171,68S.95, tl:i.e ortl; !mw i:'emainint; to be resolved. ie whether or not Petitioner is entitled to the bala11ce, RespOI1d�nt then submitted his case for decision as he has no records of this _. T!Uit Petitioner timely .flied its claim for refund, both in the administrative and judici~\i 1cv~1. is not. disputed. Moreover, the VAT returns submitted by Petitioner clearly ;;l"1o\V that during the year 1996,.-J( did-~:O~~g~ge in commercial operations although it pu~ paid input taxes on its local of-taxable goods and services and importation of capital goods. Being a VAT-registered entity engaged in export selling, therefore, Petitioner may rightfully apply for the issuance of a tax credit certificate of input taxes paid, to the extent that such input taX: has not ~H~en applied against output tax, on the basi ~ of Section 106, now Section 112 of the N(l~ional Internal Revenue Code, to state: "SEC. 112. Refunds or Tax <;redits ofInput Tax. - (A) Zero-rated or Effectively Zero-rated Sales. - Any VAT- regi'stered 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 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, however, That in the case of zero-rated sales under Section 106(A)(2)(a)(l ), (2) 80

DECISION- CTA CASE NO. 5590 PAGE6 and (B) and Section 108 (B)(l) and (2), the acceptable foreign currency exchange prdceeds thereof had been duly accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP): 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 of the transactions, it shall be allocated proportionately on the basis of the volume of sales. (B) Capital Goods.- A VAT-registered person may apply for the issuance of a tax credit certificate or refund of input taxes paid on capital goods imported or locally purchased, to the extent that such input taxes have not been applied against -' output taxes. The application may be made only within two (2) years after the close of the taxable quarter when the importation or purchase was made. - r~ (C) X X X (D) Period within which Refund or Tax Credit of Input Taxes shall be Made. - In proper cases, the Commissioner shall grant a refund or issue the tax credit certificate for creditable input taxes within one hundred twenty (120) days from the date of submission of complete documents in support of the application filed in accordance with Subsections (A) and (B) hereof. In case of full or partial denial of the claim for tax refund or tax 'ciedit! or the failure on the part of the Commissioner to �aci. �q!1' the application within the period prescribed above, tl}e taxpayer affected may, within thirty (30) days from the receipt of the decision denying the claim or after the expiration of the one hundred twenty day-period, appeal the decision or the unacted claim with the Court of .Tax Appeals." XXX Thus, the sole issue We are tasked to resolve is factual: whether or not Petitioner was able to substantiate the balance ofP12,175,688.95. 8 J.

DECISION- CTA CASE NO. 5590 PAGE? After a careful examination of the invoices, receipts, and import entry declarations adduced by Petitioner, We rule in its favor but in a reduced amount. It is to be noted that insofar as Petitioner's claim for refund of input taxes on its local purchases of goods and services is concerned, the Department of Finance disallowed a total of P2,265,311.15, arrived at as follows: Petitioner's Claim Pl0,765,383.48 Less: Amount granted per TCC 8,500,072.33 No. SN 023132 P2.265.3ll.l5 Amount disallowed :. While We concur with the disallowances made by Respondent, this Court finds, however, that the disallowed amount of P243 ,884.21 should be granted, the same having . r� been substantiated by a valid invoice and official receipt. While the official receipt was dated April 16, 1997, the invoice, nonetheless, falls within the period claimed, December 31, 1996 (Exhs. P-170 and P-171). With reference to the input taxes paid by Petitioner on its importation of capital goods, this Court adheres to the findings of the independent CPA that the amount of P l ,983,329.40 must be disallowed as they were not properly documented. WHEREFORE, in the light of the foregoing, the Court finds the instant Petition .-: meritorious and in accordance with law: ~~spq~dent is hereby ORDERED to ISSUE A . ' :~ TAX CREDIT CERTIFICATE iq f'lv~r of Petitioner in the amount of P8,170,914.61 representing unutilized input VAT for 'local purchases of goods and servtces and � �� l �� importation of capital goods for the year 1996, computed as follows: Allowable amount of 1996 input tax on local purchases p 243,884.21 Per Court's Verification Allowable amount of 1996 input tax on importations 82

D.:.<:CIS!ON- P9,910,359 .80 CTA CASE NO. 5590 _1,983 ,329.4Q 7,927,030.40 l>AGE 8 P 8 . 1 7 0 . 9 '14.61 Amount of 1996 claim for refund on importation Less: Disallowance per SGV's verification J Total Refundable Amount SO ORDERED. ~LQ~~ ERNESTO D. ACOSTA Presiding Judge WE CONCUR: 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. Q__~_z:- ~. o~ ERNESTO D. ACOSTA Presiding Judge