CTA Case No. 5312 (Decision)

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QtJEZON CITY TROPICAL HUT FOOD MARKET, INC., Petitioner, -versus- C.T.A. CASE NO. 5312 C0~1MISSIONER OF INTE&l\l"AL Promulgated: HAY 28 1999 REVENUE. ~ <" Respondent. ---=x X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DECISION Before Us for consideration is petitioner's claim for refund of alleged overpaid income tax arising from its interpretation that the 20% sales discount granted to senior citizens under Republic Act (R.A.) 7432 should be treated as tax credit instead of a deduction from gross income as declared by the respondent in Revenue Regulations No. 2-94 and BIR Ruling No. 67-95, in the total amount ofP377,167.00 for the years 1993 and 1994. Petitiont:t is a domestic corporation duly organized and existing under the laws of the Philippines. It is engaged in the business of retaili11g pharmaceutical products and selli..'l.g of hamburger, beverages and other food items under the business style "TROPICAL HUT" (Exh. A). It is duly licensed by the Bureau of Food and Drugs to operate a drugstore and a fast food chain with proper permits and licenses from the local government units of the places where the drugstores and the fast food chain are located, and other government agencies (Fxhs. R to F, inclusive of suhmarkings).

DECISION- C:.TA CASE NO. 'i112 2 For the years 1993 and 1994, petitioner granted 20% sales discounts to qualified senior citizens on their purchases of medicines, and beverages and foods tor dine-in pursuant to R.A. 7432, othetwise known as "An Act 1'o Maximize The Contribution Of Senior Citizens 1'o Nation Building, Grant Benefits And Special Privileges And For Other Purposes". Petitioner treated these discounts as a deduction from its gross income in compliance with Revenue Regulations No. 2-94 issued by the respondent which implemented the aforesaid law. Unconvinced with the interpretation of the respondent regarding R.A. 7432, paiticularly Section 4(a) thereof, petitioner ftled two separate claims for refund or credit. The frrst letter was filed on June 26, 1995, in the amount of P27,801.00 covedng the year 1993 while the second letter was filed on December 20, 1995, in the amount ofP349,366.00 for the year 1994 (Exl1s. S and T, inclusive of sub-markings). Both claims represent alleged overpaid i.'l.come tax arising from respondent's erroneous i.n.terpretation that the 20% sales discounts given to serlior citizens on their purehases of medicines and food items should he treated hv netitioner as a deduction from itc;; QToss ... .1. '-' income for income tax purposes or from gross sales for value-added tax or other percentage tax purposes rather than as a tax credit. In the said letter-requests tor refund, petitioner treated the 20% sales discounts in complete disagreement with respondent's view, that is, as a tax credit rather than as a mere deduction. On December 29, 1995, petitioner lodged its appeal with this Court in order to toll the mmring of the two-year prescriptive period to ftle a claim for refund pursuant to Section 230 of the Tax Code. L.i its petition for review, petitioner argues that the 20% sales discount granted to senior citizens should be treated as tax credit because Section

DECISION- C.T A. C:ASF NO S~12 3 4 of R.A. 7432 provides in clear and unequivocal language that discounts granted to senior citizens may be claimed as TAX CREDIT. It further asseverates that Section 2(i) of Revenue Regulations No. 2-94 which is a mere administrative regulation, cannot modify or alter the clear mandate of said law. Petitioner believes that Section 2(i) of Revenue Regulations No. 2-94 is illegal, void and without effect for being inconsistent with the statute it seeks to implement. On July 25, 1997, upon written motion of petitioner, respondent was declared in default due to his failure to ftle the answer on time despite being given a second chance to do so (see l\1inutes of the Session, p. 152, CTA records). A corresponding confrrming resolution was then issued on .A.ugust 4, 1997. Thereafter this case was heard ex-parte. The issues to he resolved hy the Court are as follows: 1. The proper interpretation of Section 4(a) of Republic Act No. 7432, insotar as the treatment of the 20% sales discount on purchase of medicines and tood items afforded to senior citizens is concerned; 2. The validity of Revenue Regulations No. 2-94 implementing the aforesaid law which treats the 20% sales discounts as deduction from gross income for income tax purposes and from gross sales for value-added tax or other percentage tax purposes; and 3. \\'hether or not petitioner was able to prove with substantial evidence its claim for refund. We fmd all the legal issues in favor of petitioner. In fact, \Ve have already ruled on these similar issues in a number of cases (Eimas Drug Corporation vs. Commissioner of Internal Revenue, CTA Case NO. 5311, August 27, 1998;

DECISION- CT A C:ASF NO. '5312 4 Trinity Franchising & Management Corporation vs. The Commissioner of Internal Revenue, CTA Case No. 5313, August 18, 1998; ME. Holding Corporation vs. Commissioner of Internal Revenue, CTA Case No. 5314, August 17, 1998; Baliuag Drug Corporation vs. Commissioner of Internal Revenue, CTA Case No. 5365, May 13, 1998, Del Rosario Corporation vs. Commissioner of Internal Revenue, CTA Case No. 5357, April 6, 1998; and Sto. Rosario Drug Corporation vs. Commissioner of Internal Revenue, CTA Case No. 5367, February 16, 1998) wherein it was held: Aftt;r a painslaking scruliny of tht; aHt;nding fads, Lht; issut;s involved, the respective argumentation of the parties and the applicable jurisprudence, laws and regulations in point, this Court hereby mles in favor of the petitioner. For easy reference, the pertinent provisions of law and regulations in question are hereby reproduced, to wit: A) St;clion 4 ofRt;public Act No. 7432: "Sec. 4. Privileges for the Senior Citizens. - The Senior citizens shall be entitled to the following: a) the grant of nventy percent (20%) discount from all establishments relative to utilization of transportation setvices, hotels and similar lodging establish..rnents, restaurants and recreation centers and purchast; of mt;ui~.;int;s anywht;rt; in lht; wunlry; Provided, That private establishments may claim the cost ac;; tax credit. . .. "(emphac;;is supplied) B) Section 2 (i) ofRR No. 2-94 1. Tax Credit-refers to the amount representing the 20% discount granted to a qualified senior citizen by all establishments relative to their utilization of transportation services, hotels and similar lodging eslablishmenls, reslauranls, drugstores, re~,;reation ~,;enters, theaters, cinema houses, concert halls, circuses, carnivals and other similar places of culture, leisure and amusement, which discount shall be deducted by the said establishments from their gross income for income tax purposes and from their gross sales for value-added tax or other percentage tax purposes." (emphasis supplied) A cursory review of the wordings of Section 4 of Republic Act No. 7432 would reveal that the law literally intended the cost oftt~e 20% discount to be claimed as tax credit by private establishments. We could not see any plausible reason for the respondent to interpret the phrase in

DECISION - C' T A C'ASE NO S112 5 a different way. The discount being available for tax credit as stated in the law cannot be made incoherent to mean that such discount be utilized instead as a deduction from gross income and from gross sales as what is provided in RR No. 2-94. To be valid, an administrative regulation must not be in contravention but should conform to the standards that the law prescribes. (Tayug Rural Bank \ts. Central Bank, 146 SCRA 120) Its promulgation must be authorized by the legislature. (Philippine Administrative Law, Cruz, 1994 ed., p. 32) RR No. 2-94 which engraved a new meaning to the phrase "tax credit" as referring to the 2U% discount which is deductible from gross sales is patently incongruous and a deviation from the plain intendment of the law. It is even repugnant to the common dictionary acceptation of said phrase. Black's Law Dictionary, 6th ed., defmes tax credit in this �wise: An amount subtracted from an individual's or entity's tax liability to arrive at the total tax liability. A tax credit reduces the taxpayer;s liability dolbr for dollar, compared to a deduction which reduces taxable income upon which the tax liability is caiculated. A credit differs from deduction to the extent that the former is subtracted from the tax while the latter is subtracted from income before the tax is computed. (Emphasis supplied) Under RR No. 2-94, respondent has interpreted tax credit as synonymous to tax deduction in glaring contradiction to the above defmition. Undoubtedly there is a clear distinction, nay, difference between the two tenus. Under these circumstances, the law should reign supreme over subordinate niles and regulations where the provisions of the latter are not in accord with the fonner. It is clearly provided in Section 4(a) of RA 7432 that the cost of the 20% discount granted by private establishments may be claimed by the latter as tax credit and not as a deduction contrary to what has been declared in Revenue Regulations No. 2-94. In case of conflict between a statute and an administrative order, the former must prevail. (Kilusang Mayo Uno vs. Garcia, Jr., 239 SCRA 386) Furthermore, the legal issue in this petition has already been settled in the case entitled Sto. Rosario Drug vs. Commissioner of Internal Revenue, CTA Case No. 5357, dated February 16, 1998. In declaring that the provisions of RA 7432 prevail over Revenue Regulations No. 2-94, it is important to point out that the cost of the 20% discount shall not be treated as deduction from the gross income of the petitioner nor deducted from ito;; gross sales for VAT or other percentage tax purposes. The benefit that can be derived by !axpayt:rs is lht: privikgt: of claiming lht:st: uiswunls as lax ~o;rt:ilil and nu longer a'l deductions a'l what other taxpayers have done. They cannot avail of tax credit and claim said discounts as deductions at the same

DECISION- CT A _CASE NO _:'5112 6 time because this would be tantamount to granting them benefits that are already disproportionate to the obligations imposed upon them by virtue of said law. This is to make clear tor both the taxpayers and respondent that the tax credit privilege takes the place of claiming these discounts as deductions pursuant to this Court's stand that Section 2(i) of Revenue Regulations No. 2-94 is null and void and it is Section 4(a) ofRA 7432 that will apply in cases of this nature (Del Rosario Drug Corporation vs. Commissioner of Internal Revenue, C .T .A. Case No. 5357, dated April 6, 1998, supra). \XJe also find the conclusion in the aforequoted decision to be applicable to the petitioner's ac.t of extending 20% sales disc.ounts to dine-in qualified senior C-itizens on their purchases of food and beverage items rrom Tropical Hut food stores. Having settled the legal issues involved in the case at bar, We are now tasked to resolve the tactual issue of whether or not petitioner is entitled to the claim tor refund of overpaid income taxes for the years 1993 and 1994 based on the evidence submitted during triaL The records clearly show that the claim for refund was seasonably filed within the reglementaiy period of two years fi:om the date of payment of the tax pursuant to Section 230 of the Tax Code. Petitioner also presented in evidence the cash slips showing the 20% sales discounts given to qualified senior citizens. However, out of the total sales discounts for the years 1993 and 1994 in the total amount of P573,133.82 as clai.T.ed by petitioner i.11 its "Summary of Sales and Discounts Given to Senior Citizens", only the amount of P564,090.01(for taxable years 1993 and 1994) was verified by the independent CPA to have been supported by valid documentc;;, to wit: (Exhs. Y. Y-1 and Y-2) 19 93 19 94 Petitioner DRUGSTORE Petitioner CPA p 61,141.41 p CPA 238 .87 61,141.41 Panay p 238.87 p 970 .56 11 ,796.92 11 ,796.92 Taytay 235 ,570.14 235,570.14 SF Homes 970.56 2,599.56 2,599.56

DECISION- C.TA . CASE NO '):112 NovaiJches 2,065.03 7 10,875.59 10,875.59 Broadway 6,069.41 2,643.26 2,065.03 20,773 .63 Q. Plaza �1,5'16.93 42 ,3'10.2'1 20,773.63 Mala bon 243.86 3,401.38 Cavite 5 , 7 9 2 .6 8 �1,5'16.93 42 ,3'10.2 �1 19,664.35 Shaw Blvd. Sta. Quiteiia 468 .31 243 .8 6 3,401.38 3,118.13 Sue at 51 .70 963.15 Bagong llog 5 ,792 .6 8 19,664.35 Bagbag 8 ,372.60 19,092 .0 2 JRC Ar::n ,.. .. "0A,11An0".'1""0' Sub Total 7,435.05 5,626.23 'f;J0.0 I p 38.457.82 p 434.333.16 51.70 963.15 8 ,372 .6 0 19,092 02 4,604.23 7,435 .0 5 5,626.23 p 32.388.41 p 438.937.39 19 93 19 94 COFFEE SHOP Petitioner CPA Petitioner CPA EDSA Central 2 ,378 .7 0 Kalentong p p 101 .39 p ?- ,:.:.\.7A-�7�n- p 1,932.42 Cubao Romulo 692.70 7 ,7 4 4 . 6 5 Farmer's Plaza 101 .39 1,932.42 5,355 57 Robinson 692.70 26 80 1,282.66 Broadway 7,744.65 Shoppesville 2 6 .8 0 49i .45 5,827 .3 7 Panay 5355 57 8,868.03 iviarkina '">O fH 43.48 3,801.86 Alabang 114.45 1,282.66 BF Homes L.U . V I 139 06 916.50 Buendia 7,135.33 Sucat 49i .45 t:C::O "7":) 4,466.18 Ermita ...J...JU.I...J 4,665.96 Esco!ta 43.48 5,827 .37 Carriedo 114.45 663.28 8 ,868.03 583.24 Cavite 13906 18.04 3,801 .86 2,116.55 Greenbelt 3,559.70 Taytay c::c::o , , 223.54 916.50 5,105.67 Circle 117.48 7,13533 1,198.78 Congressional VVU.IV 4,466.18 1,444.66 Monumento 92.74 4,665 .9 6 4,802.71 Gotesco 663.28 107.Q1 2,891.59 Novaliches 18.04 102.72 5 8 3 .2 4 2,191.10 Sta Quiteria 91.06 2,116.55 3,48�1.70 Gotesco Man I 92.84 3,559.70 1,511 .86 Gotesco Mall II 223.54 54.73 5,105.67 Cainta I 117.48 1,198.78 483.58 Cainta II 7.31 1,444.66 1,017.80 Shaw Blvd BNT 9 .05 49.07 4,802.71 Buendia BNT 2,891.59 787.10 Pasig BNT :t":\1:"J"\L."I"1'A+ 486 .37 2,191.10 4,209 71 Sub Total 3,48�1.70 1,666.32 Total 107.01 4,183.19 1,511.86 102.72 36,571.60 325.50 483.58 1,330.50 92.84 1,017.80 54.73 101.95 787.10 93,185.25 7 .31 4 ,2 0 9 .71 5 2 7 ,5 1 8 .41 4 9 .0 7 1,666.32 4 8 6 .3 7 p 4,31 �1.31 p p 91,427.30 p p 42.769.13 p p 530,364.69 p

DECISION- C T A CASF NO '5112 8 Aside tfom the disallowances made by the independent CPA, We deemed it appropriate to exclude the following 20% sales discounts, for the following reasons: 1. Tne supporting cash slips were denied admission by the Court per Resoiution, dated January 16, 1998 (see pp. 326 to 354, CTA records); 2. No supporting cash slips were presented but included in the "Summaty of Sales and Discounts Given to Senior Citizens"(see Exhs. Y-1 and Y-2); 3. Erroneously entered nvice in the summary; and 4. Chrerstated sales discounts. These exclusions further reduced the 20% sales discounts to P415,923.56 for the taxable years 1993 and 1994. Since the amount of the total sales discount'! given to qualified senior citizens was further reduced from P564,090.01 to P415,923.56 as a result of this Court's own examination of the evidence presented, the total sum to be granted to petitioner has also been reduced to P270,351.41, computed as follows: For 1993: Net Sales P1 ,225,715,359.00 5 628.60 Add: 20% Discount to Senior Citizens (see Annex A) P1 ,225,720,987.60 Gross Sales Less: Cost of Sales Merchandise Inventory, beg. P 165,916,181.00 Add Purchases 988,518,017.00 Total Goods Available for Sales P1, 154,434,198.00 Less: Merchandise Inventory, End �150,9�1 9,458.00 ., ,003,514,740.00 Gross Income p 222,206,247.60 Less: Operating Expenses 261.678.430.00 Net Operating Loss p 39,472,182.40 Add: Miscellaneous Income 43,466,526.00 Net Taxable Income p 3 994 343 60 Tax Due (3,994,343 60 x 35%) p 1,398,020 26 Less: 1) Tax Credit p 5,628.60 1 401 679.60 2) Income Tax Payment for the Year 1,396,051.00 AMOUNT REFUNDABLE p 3 659.34

DECISION- C TA. CASE NO )~12 9 For 1994: Net Sales Pi ,601 ,304,516.00 410 294.96 Add: 20% Discount to Senior Citizens (see Annex B) P1,601 ,714,810 96 Gross Sales 1,296,207,942.00 Less: Cost of Sales p 305,506,868.96 Merchandise Inventory, beg . p 150,919,458.00 327,011,536.00 p 21,504,667.04 Add Purchases 1,322.~95, 753.00 59.142.901.00 Total Goods Available for Sales P1.473.315.211.00 p 37 638 233 96 Less: Merchandise Inventory, End 177.107,269.00 p 13,173,38-1.89 Gross Income 13 440 073.96 Less. Operating Expenses p 266 692 07 Net Operatmg Loss p 270.351,41 Add: Miscellaneous Income Net Taxable Income Tax Due (37,638,233.96 x 35%) p 410,294.96 Less: 1) Tax Credit 13,029.779.00 2) Income Tax Payment for the Year AMOUNT REFUNDABLE TOTAL AMOUNT REFUNDABLE \VHEREFORE, in view of the foregoing, the petition for review is partially granted. Respondent is hereby ORDERED to REF~TD in favor of petitioner the amount of P270,351.41, representing overpaid income tax for the years 1993 and 1994. SO ORDEP..ED. ~Q~~ ERNESTO D. ACOSTA Presiding Judge WECONC1JR: (On leave) RAM:ON 0. DE VEYRA Associate Judge

DECISION- ~ .T A ~ASF. NO '>112 10 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, i\rticle VIII of the Constitution. ~Q-0~ ER.t""\TESTO D. ACOSTA Presiding Judge

Sheet1 1 VALID 20% ioRUGSTORE ! DISALLOWANCES REMARKS i DISCOUNT �---+-1P--a--n--a-y--�-�-------�-����---r1-P~--1-�--------2-.3.-8-.8-7--: -Pt-! �!:_f---2-3-8.-8-7-1-C-a-sh~-sl-ip-s-d-e-nied ' +P 1 --------- 1. -J.!.a.Y!~y________________L __;________~I~~~j_____L ________~~Q.:_?_~j~~'!_~lips 9eni~_ _ _ _[___L_ i BF Homes , 1 2.599.56 i i 2.599.56 i Cash slips denied I ~-:~~~~~;,~;~--~~=-~-=f-- 2,Q_ss.og_-=_c_~==- 2.os~.o3~Lc;i~~iPs d~~~~--~:::=~== -~~- r--------���--���--�-����������� __ i 2,643.26 ! 2,643.26-JJ?~~~ps deni~------i---l-----------~ . Q. Plaza i L !- - I 414.30 -- I I 1 1,516.93 I � ___ . . . . .l__ IMalabon 1,102.63 1 Cash slips denied =1fa~te :-----~--~-----243-:86-T=: L~::~::=:~==?~~~~iisi~~:i!'~~-~~~i~�=::::=:::: ---r�Shaw mvd. ---�-~ -+�*--t--5��,�7-9-2-.-6.�8-��.��t---It-------------.7--8��3-�.�5�1--��~-tC-�a-�s�-h--s-�li-p-�s-��d-e-�n--ie--d-��-------�--- I �--- ----� � - - - - __j____ _______________/__L_____ __________ ..i_______j____________ l~Q~~-:.?.-!.J~~~t~te_d__ __ _ __3._970..:93 ..---�f1.S....t.a......__Q_..u....i.t..e....r..i.a........... -�-+,- -- i ...................4....5...8.......3...1..... I 1 458.31 1 Cash slips denied --- ------;-.................... "1" � - - - - � -----------~--------�----- -----~�~_<:~~------------- -----+--~---------~!_20~- -----~-----------?_l:!_?__t-E-a~h slips ~f!_l1i~- ____ _ -t-+� --�-~~-~~_11]_!~~ ---------L-'------ ~3 372.~Q_..:____....;______ --~~~?-~60 .� ca~~ siie~-den~~ ____________,__ ~---------------_:___ _ ,JRC 1 7,435.05 , 7,435.05 , Cash slips denied ' ~ p I 32,388.41 I p ' --=~Sl~~_!~~-- 28,003.18 ,- ------=-~=-~~~:.. ;I_- p r - - - 4 -.3-8-5.2--3-i ---~-------- --- ----��------�----���-�-���--PER CPA 1 -~----- -------------- I : VALID 20% �[------------- --- ----+------����--�����-����--��-�-���-�� �t-�--��-+�----�-�----�-----��-t-----t---�---�---�------f--------------�-------t---t--�----- COFFEE SHOP FINDINGS . . DISALLOWANCES REMARKS DISCOUNT _ ;KalentonQ 39.32 Cash slips d~nie_~ _ �--rI� P-'r-- ----------~-?.:9L Page 1

Sheet1 IA~NE?< e --- �r- r - I - �r --- ---- - --+----- -- -!----+ -- --- ---- ---1 II~=J99~~Valid~~-~ s~f~--~~~~~isj~o~~ifiedS~n~~-~~~t:n;~~ r -----------~~~~=-=--~==~J ! 1! !i I I DRUGSTORE ! FINDINGS ! ' DISALLOWANCES ! REMARKS DISCOUNT --~~~nay__ -------~~--~-~1:!_~~-~-~-f -~-------------?_!J_:?._~~-'?_~!~~~p_s_~_~_i!i_~!!-----------------l--~~----------?_Q~~!!:~-- i , 11 ,796.92 235.570.1-4 I - - -- ;Taytay : -� .. 11,796.92 ---~BF-Homes___ - - - -~- -~- ~- --7.2-1-7.21-lc;~t; ~u-p~-denied_____ ------ ------;---r-----nil'.-3-52~93 ---~-- ---------� ------- - .,.. --+--------- --r--------- ---------- ----t----� -------- -- ------ ---------r--r--- ----------- -~��-N9--:-o.--_-v-f-a!--l_-i-~c--z-ha--e-s--- .-...-..-..-...--��--_~_,-_--L+'-----------~1-9-0-,~.8~-7-~-5--.:-5~--9~--_-l-1-_��_--_--_---;'_-�-_---_-_--_--_--_--J--_-g--2--Z7---3---.--6--~--~-1t-~--e- _----!�--~- �r--e� -n-~--~--~-f- c~-~- Li-------~-- ! - - - - - - - - ! 10,875 .59 -----~-�------------- slips_ _ 1-}6;~;;~n____ _!-l--~i:~~Jit=~=:~~=~-�---~:~ii~~c:;~~~~~~~ji~~~:=:~:-_=:::~=:_:=1-=~r-:�_-::=::=;~�~~~~~~- I � - IShaw Blvd. - � � - � - " - � t -1 - - 19 ,664.35 1 7,877.90 Cash slips demed -,t--� +----1-1,-7-8-6.-4-5- -t----- ---- -- - . ---+- I _i_s~._ (~~-~!e!~~---�� __ L .J.-~l~J!_!_~ _l__________________ _: ____L ______________________ L___l _________~~-~ 'sucat ;i 963.15 1 1 ; 'i 963.15 ~~-~~-~~9]1~~:~----~~~---T -~�~--!~~o�~:~~c~~:~; ::~~-::~:::~-~~~j-~i~T:~~~~=~~P.-~~~-~T~~~=~~::~-=~-~=~:.r~:~l-:==~~=J~~~~-~~-?~ - ,JRC I 5,626.23 I 3,778.92 i --------------------- i: 1,847.31 !Sub To~~--______ i iP i 434,333.16 40,948.90 I ___ --------�------ i PI 393,384.26 !! ~ i --- -------+I ----Ir---- i , :�-------------------- Page 1

Sheet1 I 410,294.96 1 __ :_(?ainta II I I Ts-t1~w B~1d f -- BNT �>- --- -- ---� - - - 1 ---~!!ue~dia BNT I ,Pasig BNT II ---- Sub-. T--o-ta�l---- - --� t---:Tro-t-al-------- Page 1