MIRANT SUAL CORPORATION v. COMMISSIONER OF INTERNAL REVENUE

'' REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY SPECIAL FIRST DIVISION ******************* TEAM SUAL CORPORATION C.T .A. CASE NOS. 6630 (formerly: MIRANT SUA L and 6733 CORPORATION), Petitioner, Members: ACOST A, Chairperson - versus - BAUTISTA, and CASANOVA, JJ. COMMISSIONER OF INTERNAL Promulgated: REVENUE, Respondent. 2010; 3·..n rVo'l AMENDED DECISION BAUTISTA, J.: The Court resolves the fol lowing: 1. respondent's Motion for Partial Reconsideration filed on July 3, 2009, with petitioner's Comment/Opposition (To Respondents Motion for Partial Reconsideration) filed on Ju ly 20, 2009; and 2. petitioner's Motion for Partial Reconsideration fi led on Ju ly 7, 2009 and Supplemental Motion for Partial Reconsideration fi led on July 31, 2009. In respondent's Motion for Partial Reconsideration, he argued that: "THE HONORABLE CO URT ERRE D IN GRANTING PETITIONER'S CLAIM FOR REFUND IN THE RED UCED AMOUNT OF P117,330,550.62 ALLEGEDLY REPRESE NTI NG UNUTILIZED INPUT VAT FROM ITS DOM ESTI C PU RCHASES OF GOODS AND SERVICES AND I MPO RTATION OF GOODS ATTRIBUTABLE TO ITS EFFECTIVELY ZERO-RATED SALES TO THE NATIO NAL POWER CORPORATION FOR THE FIRST, T HIRD AND FOURTH QUARTERS OF TAXABLE YEAR 2001, BECAU SE PETITI ONER HAS NOT SU FFICIENTLY PROVEN ITS ENTITLEMENT TO REFU ND AND THJ I 91 7

AMENDED DECISION C. T.A. Case Nos. 6630 and 6733 THE CLAIM WAS NOT FILED IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED BY LAW ." In th e Comment/ Opposition ( To Respondent's Motion for Partial Reconsideration) filed on July 20, 2009, petition er opposed respond ent's Motion in thi s w ise : 1. Petition er had compli ed with th e requirement s of Section 112(D) of the 1997 Ta x Code, as am ended, in th e fil ing of its admini strati ve and judicial claim s for refund within th e period provid ed und er th e law; t and 2. Petitioner wa s able to prove that it is entitl ed to th e claim for refund or issuance of ta x credit certifica te. 2 On th e oth er hand, petition er's Motion for Partial Reconsideration fil ed on July 7, 2009, raised the following grounds : " I. THE HONORABLE COURT ERRED IN DISALLOWING PETITIONER'S INPUT VAT FOR THE SECOND QUARTER AMOUNTING TO P29, 298,556.12 BASED ON PRESCRIPTI ON BECAUSE: A. PETITIONER FILED ITS JUDICIAL CLAIM FOR REFUND WELL WITHIN THE TWO -YEAR PRESCRIPTIVE PERIOD RECKONED FROM THE DATE OF FILING OF THE QUARTERLY VAT RETURN PURSUANT TO LONG STANDING JURISPRUDENCE, WHICH THE SUPREME COURT EXPRESSLY RECOGNIZED IN ATLAS CONSOLIDATED MINING AND DEVELOPMENT CORPORATION V. COMMISSIONER OF INTERNAL REVENUE, G.R. NOS. 141104 & 1148763, JUNE 8, 2007 ('ATLAS SC CASE') B. THE HONORABLE COURT SHOULD NOT HAVE HASTILY RELIED ON THE CONTRARY HOLDING OF THE SUPREME COURT IN COMMISSIONER OF INTERNAL REVENUE V. MIRANT PAGBILAO CORPORATION, G.R. No. 172129, SEPTEMBER 12, 2008 ('MIRANT PAGBILAO SC CASE') AS IT IS OF DOUBTFUL VALIDITY IN THE LIGHT OF ARTICLE VIII, SECTION 4(3) OF THE CONSTITUTION C. ASSUMING BUT WITHOUT CONCEDING THE VALIDITY OF THE RULING IN THE MIRANT PAGBILAO SC CASE, THE SAME SHOULD BE APPLIED PROSPECTIVELY AND NOT RETROACTIVELY TO THE PREJUDICE OF PETITIONER WHO RELIED IN GOOD FAITH ON PREVAILING JURISPRUDENCE AT THE TIME OF FILING OF ITS JUDICIAL CLAIM FOR REFUND 1 Docket, p. 708 2 Docket, p. 718 91

AMENDED DECISION C.T .A. Case Nos. 6630 and 673 3 II. THE HONORABLE COURT ERRED IN DISALLOWING PETITIONER'S INPUT TAXES OF P6,282,199.10 AND P1,354,580.25 ON LOCAL PURCHASES OF GOODS AND SERVICES, RESPECTIVELY, AND POSSIBLY OF P6,393,027.00 (OR A PORTION THEREOF) ON IMPORTATIONS ON THE GROUND THAT THE SUPPORTING DOCUMENTS ARE ISSUED UNDER PETITIONER'S FORMER NAME BECAUSE THE CHANGE OF NAME OF PETITIONER DOES NOT AFFECT ITS IDENTITY NOR ITS PROPERTY, RIGHTS, OR LIABILITIES" In petitioner's Supplemental Motion for Partial Reconsideration fil ed on July 31, 2009, petition er interpo sed th e following ground : "THE HONORABLE COURT ERRED IN DISALLOWING PETITIONER'S INPUT TAXES OF P1 2,761,224 .50 ON LOCAL PURCHASES OF GOODS AND SERVICES AND ON IMPORTATIONS ON THE GROUND THAT THE SUPPORTING DOCUMENTS ARE ISSUED UNDER PETITIONER'S FORMER NAME BECAUSE THE CHANGE OF NAME OF PETITIONER DOES NOT AFFECT ITS IDENTITY NOR ITS PROPERTY, RIGHTS, OR LIABILITIES." Respond ent's Motion for Partial Reconsideration is bereft of merit. Respond ent's argum ents merely reiterated hi s an swer to th e Petition for Review and which had already bee n passed upon in th e assail ed Decision. At any rate, this Court would oblig e to address respond ent's co ntention s. In support of his all egation s, respondent cited Section 11 2( D) of th e National Internal Revenu e Cod e (NIRC) of 1997, to w it: " SEC. 112. Refunds or Tax Credits of I nput Tax - XXX XXX XXX (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 a ta x cre dit certificate for creditable input t axes within one hundred twe nty ( 120) days from th e date of submission of compl ete docum ents in support of th e application fil ed in accordance with Subsections (A) and (B) hereof. 91 9

AMENDED DECISION C.T.A. Case Nos. 6630 and 6733 In case of f ull or partia l denial of the claim for ta x refu nd or ta x credit, or the fai lure on th e part of the Commissioner to act on the app lication within th e period prescribed above, the 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 ." (Emphasis supplied) Respondent asserted that for failure of petitioner to submit the complete documents in support of its administrative claim for refund within 120 days from March 20, 2003, t he date when petit ioner fi led its claim for refund, the Petitions for Review were prematurely fi led before this Court on March 31, 2003 3 and on July 23, 2003 4 . In other words, this Court had no jurisdiction to act on the subject Petitions for Review. The argument is untenable. I n t he case of E.C. De luna Construction Corporation vs. Hon. Afable E. Cajigal, In His Capacity As The Presiding Judge Of The Regional Trial Court Of Quezon City, Branch 96, et a/.5 , the Court of Appeals held that: "It should be noted that the rule provides that the execution may be stayed, it did not use the word shall. As in the case of Republic Planters Bank v Agana/ Sr./ et a/. (269 SCRA 1 [1997]) the use of the word may denotes discretion, to wit: 'xxx It is a settled doctrine in statutory construction that the word 'may' denotes discretion, and cannot be construed as having a mandatory effect.' (269 SCRA at 12)" (Emphasis supplied) The judicial recourse after the lapse of the 120-day period, as provided in Section 112(0) of the NIRC, is merely directory and permissive and not mandatory nor j urisdictiona l so long as the administrative and judicial claims are fi led within the two- yea r prescriptive period under Sections 112 and 229 of the NIRC of 1997. This was the 3 4 5 C.T .A. Case No. 6630 C.T.A. Case No. 6733 CA-G.R. SP No . 91135, August 8, 2006 I 920

AMENDED DECISION C.T.A. Case Nos. 6630 and 6733 ruling of this Court in th e case of Commissioner of Internal Revenue vs. San Roque Power Corporation 6 . Clearly, th ere is no merit in respond ent's contention. Meanwhil e, petition e(s Motion for Partial Reconsideration involved the issue which was earli er pa ssed upon by thi s Court in th e Decision dated Jun e 9, 2009. To recall, this Court in th e said Decision partially granted petitioner's claim for refund in the amount of Pll7,330,550.62, representing unutilized input VAT for th e first, third, and fourth quarters of 2001. This Court, applying th e cas e of Commissioner of Internal Revenue vs. Mirant Pagbilao Corporation (Formerly Southern Energy Quezon 1 Inc.f, denied however petition er's refund claim with respect to its input VAT for the second quarter of 2001, in th e amount of P29, 298,5 56.12, due to prescription . After a careful evaluation of petition er's arguments, this Court reconsiders the assailed Decision. In several ca ses, thi s Court had occasions to rul e that th e two-year prescriptive period is reckon ed from th e filing of th e Quarterly VAT Return, such as in th e cases of Mirant (Navotas II) Corporation (formerly: Southern Energy Navotas II Power1 Inc.) vs. Commissioner of Internal Revenue 8 and CE Luzon Geothermal Power Co. 1 Inc. vs. Commissioner of Internal Revenue 9 . The two-year prescriptive period for filing a claim for refund/credit of input VAT on zero-rated sales is counted from th e date of filing of the return and payment of th e ta x due. In the case of Atlas Consolidated Mining and Development Corporation vs. Commissioner of Internal Revenue 10 (Atlas case), th e Suprem e Court held: "Lastly, although th e ta xpayer's refundabl e or creditable input VAT may not be consid ered as ill egally or erron eously coll ected, its I 6 C.T.A. EB No. 408, Ma rch 25, 2009 7 G. R. No . 172129, Septem ber 12, 2008 8 C.T.A. Case Nos. 7234 and 7295, October 24, 2008 9 CTA Case Nos. 6792 and 6837, November 25, 2008 10 G.R. Nos. 141104 and 148763 , June 8, 2007 92 '

AMENDED DECISION C.T.A. Case Nos. 6630 and 6733 refund/credit is a privilege extended to qualified and registered ta xpayers by the very VAT system adopted by the Legislature. Such input VAT, the same as any illega lly or erroneously collected national internal revenue tax, consists of monetary amounts which are currently in the hands of the government but must rightfully be returned to the ta xpayer. Therefore, whether claiming refund/credit of illegally or erroneously collected national internal revenue ta x, or input VAT, the ta xpayer must be given equal opportunity for filing and pursuing its claim . For the foregoing reasons, it is more practical and reasonable to c:;ount the two-year prescriptive period for filing a claim for refund/credit of input VAT on zero-rated sales from the date of filing of the return and payment of the tax due which, according to the law then existing, should be made within 20 days from the end of each quarter. xxx" (Emphasis supplied) In the instant case, it is undisputed that petitioner filed its Quarterly VAT Return for the second quarter of 2001 on July 24, 2001 11 . Petitioner filed on March 20, 2003 its administrative claim for refu nd 12 of unutilized input VAT for ta xable year 2001 before the Bureau of Internal Revenue. Petitioner filed on July 23, 2003 the Petition for Review covering the judicial claim for refund of its input VAT for the second, third, and fourth quarters of 2001, docketed as C.T.A. Case No. 6733. Applying the above-quoted rule on the counting of the prescriptive period of two years, the last day to file the administrative and the judicial claims for refund with respect to the second quarter of 2001, should be on July 24, 2003 . Clearly, th e filing of the administrative claim on March 20, 2003 and the judicial claim on July 23, 2003, for the unutilized input VAT for the second quarter of 2001 fell within the two-year prescriptive period, pursuant to the foregoing jurisprud ence. Moreover, as correctly argued by petitioner, the ruling in the Mirant Pagbilao case13 , which states that the reckoning of the prescriptive period of two years shall commence from the close of the taxable quarter when the relevant sales pertaining 11 Exhibit "G" 12 Exhibit " E"; par. 10, Stipul ation of Facts, Joint Stipul ation of Facts and I ssues (JSFl ), docket, p. 144 13 G.R. No. 172129, September 12, 2008

AMENDED DECISION C.T.A. Case Nos. 6630 and 6733 to the input VAT were made, regardless of whether said ta x was paid or not, should be appli ed prospective ly and not retroactively so as not to prejudice the right of petitioner who re lied in good faith on the prevailing jurisprudence at the time of its filing of judicial cla im for refund. The Supreme Court in the case of Co vs. Court of Appeals, et a/. 14 ru led on the prospective application of statutes, as well as administrative ru lings, circulars, and judicial decisions, in the following manner: "The principle of prospectivity has also been applied to judicial decisions which, 'although in themselves not laws, are nevertheless evidence of what the laws mean, ... (this being) the reason why under Article 8 of the New Civil Code, 'Judicia l decisions applying or interpreting the laws or the Constitution shall form a part of the legal system." In the case of Spouses Gauvain and Bernardita Benzonan vs. Court of Appeals, Benito Salvani Pe and Development Bank of the Philippines 15 , the High Court declared the following: "At that time, the prevai ling jurisprudence interpreting section 119 of R.A. 141 as amended was that enunciated in Monge and Tupas cited above. The petitioners Benzonan and respondent Pe and the DBP are bound by these decisions for pursuant to Article 8 of the Civil Code 'judicial decisions applying or interpreting the laws or the Constitution shall form a part of the lega l system of the Phi lippines.' But while our decisions form part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that 'laws shall have no retroactive effect unless the contrary is provided.' This is expressed in the familiar lega l maxim lex prospici0 non respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The retroactive application of a law usually divests rights that have already become vested or impairs the obligations of contract and hence, is unconstitutional. (Francisco v. Certeza, 3 SCRA 565 [1961]). The same consideration underlies our rulings g1vmg on ly prospective effect to decisions enunciating new doctrines. Thus, we emphasized in People v. Jabina~ 55 SCRA 607 [1974] ' . . . when a 14 G.R. No. 100776, October 28, 1993 15 Spouses Gauvain and Bernardita Benzonan vs. Court of Appeals, Benito Salvani Pe and Development Bank of the Philippines, G.R. No. 97973, January 27, 1992 and Development Bank of the Philippines vs. Court of Appeals and Benito Salvani Pe, G.R. No. 97998, January 27, 1992 ! (l .... ') V:...J

AMENDED DECISION C.T.A. Case Nos. 6630 and 6733 doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith thereof. ' (T)he right of petition ers over th e subject lot had already become vested as of that ti me and ca nnot be impaired by the retroactive application of the Belisario ruling ." (Emphasis supplied) Since the instant Petition for Review was fi led on July 23, 2003, th e applicable ru le is th e on e enunciated in t he Atlas case, which mea ns that the refund claim perta ining to the second quarter of ta xable year 2001 was timely filed . The Court-commissioned Independent Certified Pu blic Acco untant (CPA) 16 examined and verifi ed petitioner's supporting documents and reported his fi ndi ngs as followsY Fin~in~---- Input Taxes __ I. Input taxes on purchases of goods: _ l Reference (2nd Quarter) 1. Erron eously .computed Annex 4 - 1 p 11 3.64 2. Supported by VAT invoices without BIR Permit number - Annex 4 -2 16 009 .35 --· 3. Supported by photocopi ed VAT invo ices Annex 4-3 572.83 4. Supported by documents other than VAT invoice Annex 4 -4 11, 797.30 Subtotal p 28493.12 - II. Input taxes on eurchases of services : - 1. Erroneously computed Annex 5- 1 44,801.67 2. Supported by VAT ORs without BIR Permit number Annex 5-2 4 460.32 3. Supported by photoco pi ed VAT ORs Annex 5-3 24 172.18 4. Supported by an OR with pre-printed VAT number only Annex 5-4 1 353 .50 5. Supported by ORs issued not in the name of the Company ------ - - - - - - - - - - - - ----An nex 5-7 --- - 4 780 .80 Subtotal p 79568.47 III. Input taxes claimed on purchases of goods and services without supporting documents Annex 6 1, 526 214.93 IV. Input taxes claimed on imeortations: - 1. Erroneou sly co mputed Annex 7- 1 345.00 2. Supported only by Certifi ed True Copi es of I nformal IEDs (b~u s to m s brokers) Annex 7-2 8,722. 00 16 Mr. Ruben R. Rubio of SGV & Co . 17 Exhi bit "Z", pages 4 to 9 924

AMENDED DECISION C.T.A. Case Nos. 6630 and 6733 ·~-~ - -- - - -- - --·- - - - --- ----- - ~ --- · 3. Supported by Certified True Copies of IEDs (by customs broker) without the input ta x amount Annex 7-3 1 716 .00 - 4. Supported only by_BOC and/or bank ORs Annex 7-4 85 572.00 5. Without sup12orting documents Annex 7-7 55 191.00 Subtotal p 151, 546.00 V. Additional findings : 1. Input ta xes on loca l purchases of goods supported by VAT invoices issued in the name of Southern Energy Panqa sinan, Inc. Annex 8 2 301 551.03 2. Input ta xes on loca l purchases of services supported by VAT ORs issued in the name of Southern Energy Pangasinan, Inc. Annex 9 2 100 680.00 3. I nput ta xes on local purchases of goods supported by undated invoices Annex 10 3 502.14 4. Input ta xes on loca l purchases of services supported by undated ORs Annex 11 1 035.46 5. Input ta xes on loca l purchases of goods supported by VAT invoices with different TIN compared with that in the Schedule of VAT Input Ta x Annex 12 214,059.48 6. Input ta xes on loca l purchases of services supported by VAT ORs with different TIN compared with that in the Schedule of VAT Input Tax Annex 13 3 320 .00 7. Input ta xes on local purchases of goods supported by certified true copies of VAT invoices Annex 14 9.10 8. I nput ta xes on local purchases of services supported by ORs with different supplier's name compared with that in the Schedule of VAT Input Ta x Annex 15 246.08 9. Input ta xes on local purchases of goods supported by invoices dated outside the period of cla im Annex 16 186 185.43 10. Input ta xes on local purchases of services supported by ORs dated outside the period of claim Annex 17 8 545.46 11. Input ta xes on importation of good s supported by certified true copies of IEDs (by BOC and/or Customs Broker) and/or bank debit advice and/or bank ORs issued in the name of Southern Energy Pangasinan, Inc. - Annex 19 3,055,440.00 12. Input ta xes on importation of goods supported by certified true copies of IEDs (by the BOC and/or customs broker and/or COA auditor) Annex 21 687 807.00 13 . Input ta xes on importation of goods supported by certifi ed true copies of IEDs (by the BOC and/or customs broker and/or COA auditor) and BOC and/or bank ORs Annex 22 11 746.00 Subtotal p 8574127.18 TOTAL p 10,359,949.70 I

AMENDED DECISION C.T.A. Case Nos. 6630 and 6733 Input ta xes classified under items I and II in the amounts of P28,493.12 and P79,568.47, respectively, should be disallowed for failure to meet the substantiation requirements under Sections llO(A) and 113(A) of the NIRC of 1997, as implemented by Sections 4.104-1, 4.104-5, and 4.108- 1 of Revenue Regulations No. 7-95. As regards the input ta xes under item III, petitioner presented the following to rebut the Independent CPA's findings: -- Exhibit Supplier OR No. OR Date In put VAT n ,w Le Price International Corp. 800 - - -- -- 4/ 6/ 2001 p 144,811.93 TI XX Servicio Filipino Inc. 61968 4/ 6/ 2001 50 978 .34 EEE GGG Meralco Industrial Eng. Services 31981 6/ 1/2001 33 11597.29 CCC Tadchem Marketing 1464 5/ 23/ 2001 6 321.00 TOTAL p 533,708.5 6 This Court finds the foregoing documents valid. Consequently, the P1,526,214.93 input ta xes found to be without supporting documents should be reduced by P533,708.56. Anent the input ta xes on importation under item IV in the amount of P151,546.00, the sam e should be disallowed for failure to meet the substantiation requirements except for number 4 amounting to P85,572 .00, which represents petitioner's valid claim. Certified true copies or certified photocopied documents cannot be given credence and probative value as the Court cannot ascertain whether the certifier named therein is actually the custodian of th e said documents. Also, some of the Import Entry and Internal Revenue Declarations (IEIRDs) do not show any machine validation as to the payment of the customs duties and ta xes indicated therein . It is noteworthy that petitioner's name was changed from "Southern Energy Pangasinan, Inc." to "Mirant Sual Corporation" on June 28, 2001; 18 hence, all documents in support of its claimed input VAT for the second quarter of 2001 may still be issued 18 Par. 4, Stipulation of Facts, JSFI, docket, p. 143 92G

AMENDED DECISION C.T.A. Case Nos. 6630 and 673 3 under its former name, but supporting documents for its input VAT for the third and fourth quarters of taxable year 2001 should be under its new name. Accordingly, input taxes under numbers 1 and 2 of item V in the amounts of P2,301,551.03 and P2,100,680.00, respectively, are allowable. Input ta xes in the amounts of P214,059.48, P3,320.00, and P246.08 under numbers 5, 6, and 8, respectively, are likewise allowable notwithstanding the discrepancies in the Ta xpayer Identification Number (TIN) and supplier's name, because the serial numbers of the invoices or official receipts and the amounts indicated therein are the same as those appearing in the Schedule of VAT Input Tax. Input taxes under numbers 7 and 12 in item V in the aggregate amount of P687,816.10, should be disallowed for being supported merely by certified true copies or certified photocopied documents. Those under numbers 3, 4, 9, and 10, in the total amount of P199,268.49, should be likewise disallowed for being supported by undated documents or dated outside the period of claim. Finally, as to the claimed input ta xes on importations under numbers 11 and 13 in item V, totaling P3,067,186.00, the Court finds that input taxes in the amount of P3,055,818.00 represent petitioner's valid claim as these are duly supported by Bureau of Customs (BOC)/bank official receipts and/or bank debit advices issued in the name of petitioner within the period of claim. The remaining amount of P11,368.00 19 shall be denied for being merely stamped with "certified true copy". In sum, petitioner's valid input VAT amounts to P27,233,561.57, computed as follows: 19 Exhibits " GG-2361 " and " GG-2362" I

AMENDED DECISION C.T.A. Case Nos. 6630 and 6733 .---------- Input tax claim for the 2"d quarter of 2001 p 29 298 556.12 Less: Disallowances a. Input taxes on local purchases of goods under item I p 28,493.12 b. Input taxes on local purchase of service under item II 79 568.47 c. Input taxes without supporting documents under item III p 1 526 214.93 Less: Valid claim per Court's verification 533,708.56 992,506 .37 d. Input taxes on importation under item IV p 151 546 .00 Less: Valid claim per Court's verification 85 572.00 65 974 .000 e. Input ta xes supported by certified true copies or certified photocopied documents under item V numbers 7 and 12 687 816.10 f. Input taxes supported by undated documents or dated outside the period of claim under item V numbers 3 4 9 and 10 199 268.49 q. Input taxes under item V nufl:!be_r:s 11 anQ_~~--- _p ___ 3,o6z, 186.oo ---- Less: Valid claim per Court's verification ·------· 3,055,818.00 11 368.00 2 064 994.55 Valid Input Taxes- 2"d Quarter 200 1 p 2 7 233, 561.57 Considering that the valid/substantiated input VAT of P27,233,561.57 is net of petitioner's output ta x liabi lity for the second quarter of 2001, the same is entirely attributable to petitioner's effectively zero-rated sales for the same period. Further, while petitioner carried over the va lid input VAT of P27,233,561.57 to the succeeding quarters until the second quarter of 2003, 20 the same was not applied against any output tax liability and it was fully deducted as "Any VAT Refund/TCC Claimed" in the second quarter of 2003. 21 As to the issues raised by petitioner in the Supplemental Motion for Partial Reconsideration with respect to the disallowance of petitioner's input taxes of P12,761,224.50, covering the first, third, and fourth quarters of 2001, the same were already substantially passed upon and resolved by this Court in the Decision dated June 9, 2009. Therefore, there is no cogent reason to disturb the same. 20 Exhibits "N" "0" " P" "Q" "T" and "U" 2 1 Exhibit " U- 1,1"' ' ' ' 92

AMENDED DECISION C.T.A. Case Nos. 6630 and 6733 WH EREFORE, respondent's Motion for Partial Reconsideration filed on July 3, 2009 and petitioner's Supplemental Motion for Partial Reconsideration filed on July 31, 2009 are hereby D ENI ED for lack of merit. Petitioner's Motion for Partial Reconsideration filed on July 7, 2009 is hereby PARTIALLY GRANTED and this Court's Decision dated June 9, 2009 denying petitioner's claim for refund of unutilized input VAT for the second quarter of 2001 is hereby MODI FI ED. Accordingly, respondent Commissioner of Internal Revenue is hereby ORD ERED to REFUND or to ISSUE A TAX CREDIT CERTIFI CATE in the amount of ON E HUNDRED FORTY FOUR MILLION FIVE HUNDRED SIXTY FOUR THOU SAND ONE HUNDRED TWELVE PESOS AND 19/100 ( P144, 564, 11 2. 19) to petitioner Team Sual Corporation (formerly: Mirant Sual Corporation), representing unutilized input VAT from its domestic purchases of goods and services and importation of goods attributable to its effectively zero-rated sales to the National Power Corporation for the first, second, third, and fourth quarters of taxable year 2001. SO ORDERED . WE CONCUR: t-~lc. o~ ( With Concurring and Dissenting Opinion ) ERNESTO D. ACOSTA Presiding Justice CAESAR A. CASANOVA Associate Justice 92 9

AMENDED DECISION C.T.A. Case Nos. 6630 and 6733 CERTIFICATION Pursuant to Article VIII, Section 13 of th e Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. ERNESTO D. ACOSTA Presiding Justice Chairperson, First Division 930