CTA Case No. 3039 (Decision)

f(}lji(JflLIC OF ; BE \' l ~ lL!PPINi'' ~OURT OF TAX AF'f'f..:Al-'-' Q\J1.:Z.ON (;l 'r7 THE OVERSEAS BANK OF MANILA, Petitioner, - versus - C .T . A. CASE NO. 3039 THE COMMISSIONER OF INTERNAL REVENUE, Respondent . X- - - - - -- - -X DEC I S I 0 N Petitioner, Overseas Bank ot Manila, a banking corporation organized under the laws of the Philippines paid 5% specific taxes (bank tax) in the tota l sum of ~114,194.47 during the periods from April 19 , 1974 to January 19, 1976 on its gross receipts under then Section 249 (Section 260,, 1977 Tax Code) of the National Internal Revenue Code itemized as follows: O.R . No. Date Paid Amount Paid 335837 4-19-74 ~ 8,625.81 369445 7-19-74 4,660.84 370427 10-16-74 7,280.50 427072 3,613.50 443265 1-21-7~ 7,026.66 479550 212 2631 4-16-75 20,298 . 16 4515684 7-16-75 37,323.90 10-17-75 25,364.80 T o t a 1 --- 1-19-76 ~114,194.47 84

DECISION - CTA CASE NO. 3039 - 2- It subsequently obtained from the respondent Cornmis- sioner of Interna l Revenue the refund of this allegedly erron eo usly paid 5% specific t axes in the total sum of ~114, 19 4.47 on the ground that its suspension by th e Central Bank during the time the aforesaid specific taxes (bank taxes) wer e paid were not subject to the said '5% bank tax under Section 249 of the NIRC, as it was merely collecting or liquidating t he bank ' s receivabl es, under which cir cumstances, it asserted that it was not e ngaged i n s uch �ba nking activities to be subject to the 5% bank tax. (See Annex A, Petition fo r Review and Claim for Refund of Taxes Paid, pp. 8-9, CTA rec . ) On December 13, 1978, respondent Commissioner of Internal Revenue de nied the claim for refund on the ground that during the period in which the bank tax was paid, pet itioner had "xxx continued its other banking activi- / ties such as t he right to receive interest, rentals of proper ty , dividends, etc., transactions normally engaged in by banks" and that ''Accordingly, and considering that ;! . during the period of its suspension it continued to t r ansa ct othe r banking act ivities, all amounts received or realized therefrom constitute its gross receipts subject to the 5% bank tax under Section 260 (forme rly 85

DECISION - CTA CASE NO. 3039 - 3- Section 249) of the National Internal Revenue Code of 1977. For having transacted such banking activities, the Overseas Ba~k of Manila (herein petitioner) there- fore did not err in its payment of the bank tax in t he amo unt o f �'11 1 4 , 194 . 4/ for 1974 and 1975." (Annex A, Ibid, pp.B-9, CTA rec. ) From this denial of the claim for refund, petitioner filed on October 31, 1979 its petition for review and judicial claim for refund. In his "Answer" thereto, respondent Commissioner denied petitione r's allegation which is conformably on the grounds for his administrative denial of petit ioner 's claim for refund, and in the special and affitmative defenses in his answer, among others, asserted that the rig ht to refund has already prescribed. We are in full agreement with res pondent Commissioner � of Internal Revenue who stood pat on his assertion to the effect that it is incumbent upon petitioner to show that it had brought its appeal to this Court with i n the sta t utory period provided by law and jur i sprudence. In a claims for refund, formal writte n claim for refund must have to be filed with the Commissioner of Internal Revenue wi thin two (2) years from the payment of the tax and sa

DECISION - CTA CASE NO. 3039 - 4 -- concomitantl y, in order that the Court of Tax Appeals shall have jurisdiction over the judicial claim for refund, the petitioner must have to equally file the same with said Court within two (2) years from the pay~ent of the tax. (Gibbs vs. Coll., GR L-13453 1 Feb. 29, 1960; Guagua Electric Light Plant, In c . v s . Co11., l SCRA 1221). In other words, in this particular case, the petition for review and judicial claim for refund of petitioner should ( have been filed within 2 years from eac h o f the separate I payments of the specifi c taxes, or particularly from the last payment of the specific tax on January 19, 1976 , not later than January 19, 1978, with or without, or otherwise without waiting for the decision of the respondent Commissioner of Internal Revenue denying the claim for refund. (P.J. Kiener vs. Comm . Of Int. Rev., CTA Case ( No.�ll43, February 19 , 1972; Co l l. v. Sweeney, 106 Phil. 59; Gibbs v. Coll. 10/ Phil. 232; Comm. v. National Power Corp., G.R. L-18874, Jan. 30, 1970.) The "Petition for Review and Claim for Refund of Taxes Pai<i" ot petitioner, r having been filed with this Court only on October 31, 1979, was filed out of time or beyond the two-year period from payment is non-compliance of the provisions of Section 306 and 309 of the Tax Code (now Sees. 292 and 295 of the 1977 NIRC, as amended). Consequently, we 87

-T I DECISION - CTA CASE NO . 303 9 - 5- hold that this judicial claim for refund is time barred. WHEREFORE, the instant petit ion tor review and judicial cl aim for re fun d of petit i oner Overseas Bank of Man ila is hereby dismissed with costs aga in st pe titioner. With costs. SO ORDERED . Quezon City, February 20, 1987. /A...~~rr-- c . ROAQUIN ssociate Judge WE CONCUR: AMANTE F ILLER . Pres iding Judge ~ ~-- ~ ( -- REYES te Judge 88