CTA Case No. 5434 (Decision)

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY CITIBANK N.A.-Philippine C.T.A. CASE NO. 5434 Branch, Petitioner, versus - COMMISSIONER OF INTERNAL REVENUE, Respondent. x----- DECISION Before Us for consideration is a Petition for Review filed by the Petitioner on October 18, 1996 seeking for a refund or issuance of tax credit certificates in the amount of P2,319, 130.36 representing allegedly overpaid gross receipts tax for the second semester of 1994. The antecedent facts of this case are undisputed. Petitioner is a resident foreign corporation duly organized and registered under the laws of the State of USA and authorized by the Securities and Exchange Commission to engage in business in the Philippines with principal office at 8741 Paseo de Roxas, Makati City. Records show that Petitioner filed on October 20, 1994 and January 20, 1995 its Quarterly Percentage Tax Return for the third and fourth quarter, respectively, of taxable year 1994 <Exhs. A and B>. Petitioner alleges that in its computation of its total gross receipts for each of the last two quat~t et~s of the yeat~ 1994, it included the final withholding tax on its passive income in the amounts of P31,836,718.24 and P14,545,888.96.

DECISION C.T.A. CASE NO. 5434 - 2- Claiming that it had overpaid its gross receipts tax for the second semester of 1994 to the extent of the gross receipts tax imposed on its final withholding tax on its passive income, Petitioner, through its counsel, filed on October 17, 1996, with the Bureau of I nt et~na 1 Revenue an administrative claim for refund <Exhibit "E") of overpaid GRT for the second semester of 1994 in the total amount of P2,319,130.36 computed as follows: Final Withholding Tax P31,836,718.24 3t~d Quat~t et~, 1994 14,545,888.96 4th Quat~ter~, 1994 46,382,607.20 Total 5'1- Gross Receipts Tax Rate p 2,319,130.36 On October~ 18, 1996, Petitioner filed the instant Petition for Review before this Court lest it be barred by the mandatory two (2) year prescriptive period under Section 230 of the Tax Code (now Section 229 of the NIRC of 1997). In his Answer filed through registered mail on December~ 13., 1996, the Respondent maintained the following Special and Affirmative Defenses: 8.) The application for tax credit/refund was filed only a day prior to the filing of the instant petition for review, thus depriving Respondent sufficient time to examine the Quarterly Percentage Tax Return of Petitioner for the second semester, which is a standard procedure before any grant of refund/tax credit is still under investigation. 9.) The tax in question was collected in accordance with law.

DECISION C.T.A. CASE NO. 5434 - 3- 10. ) In an action fot~ t~efund, i t is is incumbent upon Petit i onet~ to show that it the its entitled thet~eto. Failtwe on the pa~~t of Petit i onet~ to prove the same is fatal to claim for t~efund. 11. ) The allegations t~egard i ng met~it the refundability does not ipso facto refund claimed. 12. ) Claims for refund of taxes strictly against the claimant, const~~ued exemption in the nature of an same being taxation. Upon the other hand, its entitlement fot~ refund, Petitioner anchored its argument on the decision of this Court in the case of Asian Bank Corporation vs. Commissioner of Internal Revenue, CTA Case No. 4720, dated Januat~y 30, 1':3'36 wher~e We declat~ed that the final withholding tax on certain passive income of a bank is excluded from receipts for purposes of computing its gross receipts tax CGRT). To substantiate its claim, Petitioner formally offered the following evidence: 1.) Quarterly Percentage Tax Return of Petitioner for the third Quarter of 1'394 <Exh. II A") ; 2.) Rubber Stamp Received dated October 20, 1'3'34 of the authot~i zed agent bank of the Bureau of Internal Revenue and portion of Exhibit "A" <Ex h. A-1) ; 3.) Machine validation reflecting the payment of the percentage tax liability of Percentage for the period in the amount of P46,855,272.62 and pot~tion of Exhibit "A" <Exh. A-2>;

DECISION C.T.A. CASE NO. 5434 - 4- 4.) Quarterly Percentage Tax Ret tn~n of Petitioner for the Fourth Quarter of 1994 <Exh. B) ; 5.) Rubber Stamp Received dated January 20, 1995 of the authot~ized agent bank of the Bureau of Internal Revenue <Exh. B-1); 6.) Machine validation reflecting the payment of the percentage tax liability of Petitioner for the period in the amount of P48,832,415.91 and pOl�~tion of Exhibit "B" <Exh. B-e::> ; 7. ) Gt~oss Receipts Tax Computation of Petitionet~ fm~ the Quat~t er~ ended Sept ember 30, 1994 <Exh. c, C-2>; 8. ) Gt~o s s Receipts Tax Computation of Petition et~ fot~ the Quat~t et~ ended Decem bet~ 31' 1994 <Exh. D, D-2>; 9. ) SGV letter dated October 17, 1996 addressed to the Bureau of Internal Revenue, ROO No. 50-South Makati <Exh. E, E-1, E-2, E-3, E-4>; 10.) Rubber Stamp Received dated October 17, 1996 of the Bm~eau of Internal Revenue and Portion of Exhibit "E" <Exh. E-5). On June 16, 1998, the Respondent filed through registered mail, its Comment to the Formal Offer of Evidence stating that he interposed no objection to the admission in evidence of the exhibits but took exception to the veracity and purpose for which the said exhibits were offered for being erroneous conclusions of fact and law. The sole issue to be resolved in this case is whether or not Petitioner is entitled to a refund or issuance of tax credit certificates in the amount of

DECISION C. T. A. CASE NO. 5434 - 5- P2,319,130.36 representing gross receipts taxes alleged to have been paid erroneously by Petitioner for the period covering the 3rd and 4th Quarters of 1994. In focus once again is the decision of this Court in the case of Asian Bank Corporation vs. Commissioner of Internal Revenue, CTA Case No. 4720, Januat~y 30, 1996 from which the Petitioner heavily relied, and we quote, thus: X X X "We agt~ee with the Petitioner~ that the 201- final withholding tax on its interest income should not form part of its taxable gross t~eceipts. Revenue Regulations No. 12-80, dated Novembet~ 7, 1980, on taxation of Cet~tain Income Derived from Banking Activities provides that the rates of tax to be imposed on the gross receipts of such financial institutions shall be based on all items of income actually t~eceived; thus: "SEC. 4. XXX XXX XXX (e) Gross receipts or tax on banks, non- bank financial intermediaries not performing quasi-banking activities, the rates of taxes to be imposed on the gross receipts of such financial institutions shall be based on all items of income actually received. Mere acct~ual shall not be considet~ed, but once payment is received on such accrual or in cases of prepayments, then the amount actually received shall be included in the tax base of such financial institutions, as provided hereunder. (Underscoring supplied) Ft~om the fot~egoing, it is but logical to infet~ that the final tax, not having been received by the Petitioner but instead went to the coffers of the government, should no longer form part of its gross receipts for the purpose

DECISION C. T.A. CASE NO. 5434 6 of computing the GRT. This conclusion is in accord with the interpretation of the Supreme Court in the case entitled Collector of Intet~nal Revenue vs. Manila Jockey Club, 108 Phil. 821, as quoted by this Court in disposing similar issue in the case entitled Campania Maritima vs. Acting Commissioner of Internal Revenue, CTA Case No. 1426, dated Novembet~ 14, 1'366, thus: "In the second place, the highest tribunal of the land interpreted the tet~m "gt~oss receipts" to mean all receipts of a taxpayer excluding those which have been especially earmarked by law or regulation �fot~ the govet~nment at~ some person other than that of the taxpayer. <Underlining Ours) x x x. The govet~nment could not have meant to tax as gross receipt of the Manila Jockey Club the 1/2 % which it directs same club to turn over to the Boat~d of Investment. The latter being a government institution, there would be double taxation which should be considered unless the statute admits of no other interpretation. x x x "Needless to say, gt~oss receipts of the proprietor of the amusement place should not include any money which although delivered to the amusement place has been earmarked by law or regulation for some person other than the pt~oprietm~." <The Commissioner of Internal Revenue vs. Manila Jockey Club, Inc. G.R. Nos. L- 138'30 and L-13887, June 30, 1'360). In i t s memot~andum filed on October 26, 1 '3'38, Respondent stresses that the exclusion of the final withholding tax from the gross receipts in computing the GRT has no legal basis. To buttress his stance, Respondent cites the gist of the Dissenting opinion in

DECISION C.T.A. CASE NO. 5434 - 7- the case of China banking Corporation vs. CIR, CTA Case No. 5405 (September~ 30, 1'3'38), thus: "With due r~espect to the Opinion of the Majority, I hereby express my dissent to the exclusion of the 20% final withholding tax on certain passive income as no longer forming part of the taxable base of the bank's gross receipts for purposes of the 5~ gross receipts tax under~ Section 11'3 of the Tax Code, as ber~eft of any legal bases. It is tt~ue, however, that all passive gross income of corporations which are subject to the final withholding tax at source under Section 50 (a) of the Tax Code, as amended by Executive Order No. 37 on July 31, 1 '385, should no 1 anger~ for~m part of the gross income under Section 28 (a) of the same Code. Inasmuch as the enumer~ation of gross income under the aforestated Section of the Tax Code is global in concept, the corporate income tax is computed on the basis of its taxable income consisting of the pertinent items of gross income specified in the Tax Code less deductions, if any, authorized by such types of income by said Code or other special laws. There is no provision in the Tax Code or any special laws which excludes the 20% final income tax withholding under Section 50 (a), as no longer forming part of the gross receipts fat~ purpose of the 5~ gross receipts tax. On the other hand, Section 8 (c) of Revenue Regulations No. u::-80, dated November~ 7, 1'380, as amended by Section 7 (c) of Revenue Regulations No. 17-84, dated October~ 12, 1'384 have the same provisions, thus: 'If the recipient of the above- mentioned items of income are financial institutions, the same shall be included as part of the tax base upon which the gross receipts tax is imposed.' (Underscoring supplied) Clear~ly, ther~e is no doubt that the 20~ final withholding tax is legally includible as

DECISION C.T.A. CASE NO. 5434 - 8- part of the gross receipts for purposes of computing the gt~oss t~eceipts tax." Additionally, Respondent contends that the Petitioner failed to prove that the final tax on its passive income was actually withheld and remitted to the Bureau of Internal Revenue. Thus, Respondent claims that there is no basis for such exclusion. The issue in the case at bar as to whether or not Final Income Tax Withheld forms part of the gt~oss receipts of the taxpayer for GRT purposes has already been resolved in the negative by this Court. In the cases of China Banking Corporation vs. Commissioner of Internal Revenue, CTA Case No. and Equitable Banking Corporation vs. CIR, CTA Case No. 4720, this Court confronted with an identical issue held that the 20% Final Income Tax Withheld no longer forms part of the gross receipts for purposes of the 5% gross receipts tax ptn~suant to the construction of the tet~m "gt~oss t~eceipts" enunciated in the cases of Collector of Internal Revenue vs. Manila Jockey Club and Campania Maritima vs. Acting Commissionet~ of Internal Revenue, as "all r~ece.ipts oF a taxpa,ver�� excluding those ~vhich have been especially earmarked by law or regulation For the government or some Thus, the 20'Y- final taxes withheld on the bank's interest income should no longer form part of its gross receipts since it was not

DECISION C.T.A. CASE NO. 5434 - 9- actually received by the bank, having been specially earmarked for the government. At this point, We do not see that this case should compel a different ruling. However, after a careful perusal of the evidence on record, this Court finds no cogent reason to grant the petition on the ground of Petitioner's failure to substantiate its claim for refund. As correctly pointed out by the Respondent, Petitioner failed to prove that the said 20% final withholding taxes were actually paid and remitted to the Bureau of Internal Revenue. To substantially its entitlement to the refund/credit sought, Petitioner should have pt~e sent ed, aside from the quarterly returns, copies of Certificates of Final Income Tax Withheld issued by its withholding agents at~ any proof whatsoever sufficient enough to show payment of the 20% Final Withholding Tax and which would justify its exclusion from Petitioner's gross receipts. Having fallen short in its obligation to submit a vital document which would have wot~ked t o Petitione..-~' s advantage, We cannot sustain its claim following the time tested doctrine that claims for refund are in the nature of tax exemptions and as such, it must be construed in strictissimi juris against the claimant <Commissioner of Internal Revenue vs. Ledesma, January 30, 1970, 31 SCRA 95).

DECISION C.T.A. CASE NO. 5434 - 10 - WHEREFORE, in view of all the fot~egoing, Petitioner's claim for issuance of tax credit certificate or refund of overpaid gross receipts tax for the second semester of 1994 in the aggregate amount of P2,319,130.36 is hereby DENIED. SO ORDERED. GQo~ ERNESTO D. ACOSTA Pt~ e siding Judge WE ;:~ foW. RAMON 0. DE V RA Associate Ju ge II ( Dissenting ) / AMANCIO Q. SAGA Associate Judge CERTIFICATION I hereby certify that this 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. ~o.O~ ERNESTO D. ACOSTA Pt~esiding Judge Court of Tax Appeals

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY CITIBANK N. A. Petit i onet~, - - vet~sus C.T.A. CASE NO. 5434 COMMISSIONER OF INTERNAL REVENUE, Respondent. X- - DISSENTING OPINION The Petition fat~ Review was denied due to insufficiency of evidence. The conclusion of the majority however, agreed with the theory of Petitioner that the 20~ final withholding tax on certain passive income should no longer form part of the gross receipts for purposes of computing the 5~ gross receipts tax based on the ruling enunciated by this Court in the case of Asian Bank Corp. vs. Co��issioner of Internal Revenue, CTA Case No. 4720, dated January 30, 1996. I humbly submit that the aforesaid ruling in the Asian Bank case As I have reiterated in several cases involving refund of gross receipts taxes, is no provision in the Tax Code or any special law which excludes the 20~ final withholding tax from the total gross receipts for purposes of computing the 5~ gross receipts tax.

DISSENTING OPINION - C.T.A. CASE NO. 5434 c.-.. Let me quote my disse n ting opinion in the case of China Banking Corporati on vs. Commissioner of Internal Re v e nue, CTA Case No. 540 5 , dated S epte mbe r 30, 1998, where I stated: "Section 8(c) of Revenue Regulations No. 12-80, dated Novembe~~ 7, 1980, as amended by Section 7<c> of Revenue Regulations No; 17-84, dated October 12, 1984 have the same p~~ovisions, thus: "If the l"~ecipient of the above- mentioned items of income are financial institutions, t he same shall be included as part of the tax base upon which the gross receipts tax is imposed. " <Unde~~scol"~i ng supplied) Clear~ly, the~~e i s no doubt that the 20':1. final withholding tax is legally includible as part of the gross receipts for computing the gross receipts tax. pur~po s e s of The petitioner cited the case of Asian Bank Corporation v s . Commissioner of I nterna l Revenue , CTA Case No. 4720, dated Januar y 30, 1996, whe~~e this Cour~t has upheld the petitioner's contention that the interest income included as part of such gross receipts should be computed minus the 20':1. final tax already withheld and deducted by various withholding agents for the reason that the amount did not go to its funds, hence, was not actually received by them. And the Court approved the petitioner's citation of Section 4(e) of Revenue Regulations No. 12-80, dated Novembe1�~ 7, 1980, thus: "Gl-~oss r~eceipts tax on banks, non-bank financial intermediaries, financing companies, and other non- bank financial intermediaries not performing quasi-banking activities. The rates of taxes to be imposed on the gross receipts of such financial institutions shall be based on all items of income actually

DISSENTING OPINION - C.T.A. CASE NO. 5434 received. Mere accrual shall not be considet~ed, but once payment is received on such accrual or in cases of overpayment then the amount actually received shall be included in the tax base of such financial institutions, as pt~ovided het~eundet~." This Court concluded in said case that from the aforestated provisions it can logically be inferred that the amount representing the final tax, not having been received by the petitioner but instead went to the coffers of the government, should no longer form part of its gross receipts for purposes of computing the gross receipts tax. Such conclusion in law is legally objectionable for two (2) r~easons, to wit: 1 ) Section 4(e) of Revenue Regulations No. 12-80 is not a computation determinative of the amount of gross receipts as basis of the gross receipts tax under Section 119 of the Tax Code. Said r~evenue regulations merely authorize the determination of the amount of gross receipts on the basis of the method of accounting being used by the taxpayer under Section 37 of the Tax Code. Such accounting methods for tax purposes comprise a set of rules for determining when and how to report income and deductions <Co nsoli d a t ed Mines , Inc. vs. CTA, L- 18843, August 29, 1974 ). The two principal accounting methods expressly and impliedly recognized by the Tax Code and the Income Tax Regulations at~e: <a) Cash r~ece i pt s and d i sbtwsement method or cash basis. Income earned by the taxpayer~ is not included in gross income until received and expenses at~e not deducted until paid within the taxable year; and (b) Accrual basis. Income is included in gross income when earned, whether

DISSENTING OPINION - C.T.A. CASE NO. 5434 4- r~eceived at~ nat, and expenses are allowed as deductions when incurred although not yet paid within the year. 2) That the non-inclusion of the 20% final wi t hholding income tax from the gross interest income for purposes of the gross receipts tax operates as an exemption from tax. Being an exemption from tax, the same must be construed strictly not against the government but against the one who asserts the claim of exemption. Tax exemption can only be given effect when the grant is clear and categorical inasmuch as taxation is the rule and exemption is the except i on, Section 26, Tax Code. The holding therefore in the Asian Bank Corporation to the effect that the non-inclusion of the 20% final withholding income tax from the gross receipts can logically be inferred from the wordings of said Section 4(e) of Revenue Regulations No. 12�- 80, is misplaced. Tax statutes are to receive a reasonable construction with a view to carryi n g out their purpose and intent ( 51 Am J ur 361 ). It should not be construed as to permit the taxpayer to easily evade the payment of the tax <Caban S t eel Co. v s . Le we lyn, 251 U.S. 5 01). Thus, the good faith of the taxpayer is not sufficient justification for exemption from the payment of surcharges imposed by law <Commissioner vs. Royal Interocean L i n es and CTA, L-2650 6 , J u l y 30 , 1970). A tax statute should be construed to avoid the possibilities of tax evasion (Lorenzo vs. Posadas, 6 4 Phi ls . 353 ) .. The High Court's decision in the case of Commissioner of Internal Revenue vs. The Manila Jockey Club, Inc. 108 Phils. 821, ~Tune 30, 1960, which was reaffirmed by the said Court in the case of Visayan-Cebu Terminal Co., Inc. vs. Co mmission e r of Int ernal Re v en ue , 13 SCRA 357,

DISSENTING OPINION - C.T.A. CASE NO. 5434 5 February 27, 1965 cannot be conside~�ed as p~�ecedent cases, hence, inapplicable to the two cases decided by this Honorable Court in the cases of Campania Maritima vs. Acting Commissioner of Internal Revenue, CTA Case No. 1426 dated Novembe~' 14, 1966 and Asian Bank Corporation vs. Commissioner of Internal Revenue, CTA Case No. 4720 dated January 30, 1996, for the following reasons: 1) In the Manila Jockey Club, Inc. case, the Club was autho~'ized to operate horse races in which betting was made through the sale of tickets to the public. The total amount of bets ca 11 ed "wage~� fund" we~'e distributed pursuant to Executive Order No. 320 and Republic Act No. 309, as follows: 87~~ as dividends to holders of winning tickets 1.2Ya1- as "commissions" of the Manila Jockey Club, of which ~~ was assigned to the Board on Races and 5~ was distributed as prizes for owners of winning horses and authorized bonus for� jockeys. According to the above-mentioned distr-ibution of the "wager� fund", the then Collector of Internal Revenue assessed the Club on the whole amount of its "commission" of 12~1-. But since the Club had already paid the amusement tax based on its 7~ share of the "commission", the amount assessable pe~��tains only to the 5~~ for the period from November 1946 to October 1950. On various instances, the Club protested the proposed assessments and was sustained by the opinions of the Secretary of Justice rendered on three different occasions <Opinion No. 345, series of 1941; Opinion No. 249, series of 1952 and Opinion No. 340, se~�ies of 1955). Notwithstanding the opinions of the Secretary of Justice to the effect that the amount corresponding to the 5~1- was held only by the Club in trust for the owners of winning horses and authorized bonuses of jockeys, the

DISSENTING OPINION - C.T.A. CASE NO. 5434 - 5- then Collector of Internal Revenue demanded payment of amusement taxes for the period November 1945 to October 1950. Said demand letter was timely appealed to the Court of Appeals wherein a unanimous judgment was obtained reversing the Collector's stand on the matter. In the High Court, the position of the Secretary of Justice was sustained thereby upholding the Court of Tax Appeals' decision. Accordingly, gross receipts of the proprietor of the amusement place should not include any money which, although delivered to the amusement place was "especially eat~mat~ked" by law or legal rule or regulations for some pet~sons othet~ than the pt~opt~ietot~. Undeniably, they are money received by the racing club but they are moneys earmarked by law or regulations for winning horse owners and jockeys and never for a minute become the property of the race tr��ack. The same is tt�~ue in the case of the V2'Yu which the law directs the club to deliver to the Boat~d on Races. The High Cotwt thet~efot~e agrees with the stand of the Court of Tax Appeals that such funds representing 5~'Yu of the 12Vz'1. "commissions" of the t~ace tt�ack do not fm~m pat~t of the gt~oss t~eceipts, hence not subject to the amusement tax of 20'1.. The above-mentioned decision of the High Court was also applied in the case of Visayan Cebu Terminal Co., Inc. vs. Commissioner of Internal Revenue, 13 SCRA 357, Nos. L-19530 and L-19444, Febn.tat~y 27, 1955. The legal issue involved in this case is the interpretation of the management contract entered into by and between the Bureau of Customs and Visayan Cebu Tet~minal Co., Inc. whet~eby the lattet~ as contractor was appointed the sole manager of the Arrastre Service at the Port of Cebu City. In the said Management Conb~act, it was fr..n~thet' agreed and understood that in consideration of the rights and privileges granted the Contractor for the management of the Arrastre Service, the Bureau of Customs shall receive twenty eight (28'1.) percent of the total monthly gross income derived from whatever source in connection with the operations of the Arrastre Set~vice, payable within ten (10) days of the succeeding month. The main legal issue involved in this case is whether or not the gross receipts corresponding to the 28'1. of the total gross income of the Service Contractor

DISSENTING OPINION - C.T.A. CASE NO. 5434 - 7- delivered to the Bureau of Customs within ten (10) days of the following month should form part of the gross receipts subject to 3% contractor's tax under Section 191 of the Tax Code. The Court of Tax Appeals ruled in favor of the petitioner, holding the view that the said 28% payment by the Arrastre Contractor based on its monthly gross income should not form part of the gross receipts subject to 3% contractors tax and that paragraph 23 of the said Management Contract can legally be constt~ued as a "t~egulation". As the leat~ned tt~ial com~t has aptly observed: "x x x the government could not have intended to consider as gross receipts the 28% that went to one of its institutions, the Bureau of Customs, and thereby collect percentage tax on it from petitioner. To hold petitioner liable for the payment of percentage tax is unquestionably unjust and not contemplated by Section 191 of the Tax Code. " All the above-mentioned decisions of the High Court made specific reference to gross t~eceipts which at~e especially "eat~mat~ked by law o1�~ legal t~ule ot~ t~egulation" as not fot~ming part of the taxable gross receipts for purposes of the gross receipts tax under the Tax Code. Fat~ this put~pose, i t is pet~tinent to define the wot~d "eat~mal�~k" as a ma1�~k put upon a thing to distinguish it from another. Originally and litet~ally, a mat~k upon the eat~, a mode of marking sheep and other animals. Property is said to be earmarked when it can be identified or distinguished from other property of the same natr.we. To set apat~t ft~om othet~s <Black's Law Dictionat~y, 6th Edition, p. 508). In the case of the Manila Jockey Club, Inc. Executive Order No. 320 and Republic Act No. 309 made the specific "eat~mat~king" fat~ distribution of the total wager fund to different persons other than the proprietor. The same is true in the case of Visayan Cebu Tet~minal Co., Inc. whet~e the specific earmarking of the 28% of the total monthly gross income to be delivered to the Bureau of Customs by the Contractor was provided in paragraph 23 of the Management Contract. Such specific earmarking of the twenty <20%) percent final income tax as not includible in the gross receipts for purposes of the gross receipts tax was not provided by any law or legal rule or regulations, hence the non-applicability of the above-cited High Court

DISSENTING OPINION - C.T.A. CASE NO. 5434 -8 decisions to the Asian Bank Corporation case. This legal observation is also in point in the case of Campania Maritima case where the non- inclusion of the 10~ reserve from the total cash collection to avoid claim for refund on freight and passengers tickets not taken is not provided by any law or legal rule or t~egulations. In the Asian Bank Corporation case, petitioner bank alleges that subjecting the gross receipts to the 20~ final withholding income tax and later to the 5~ gross receipts tax is not only oppressive and obnoxious but even a confiscatory form of double taxation. Double taxation has been defined "as the taxing of the same item or piece of property twice to the same person, or taxing it as the property of one person and again as the property of another, but this does not include the imposition of different taxes concurrently on the same property or income (e.g. federal and state income taxes), not~ the taxation of the same piece of property to different persons when they hold different interests in it or when it represents different values in their hands, as when both the mortgagor and mortgagee of property are taxed in respect to their intet~ests in it, ot~ when a tax is laid upon the profits of the corporation and also upon the dividends paid to its stockholdet~s" <Black's Law Dictionat~y, 6th Edition, p. 4'31>. This acceptable form of double taxation is reflected in BIR Ruling No. 223 dated Novembet~ 2, 1'389, thus: "The 51- gt~oss t~eceipts tax undet~ Section 120 of the Tax Code is collectible on all finance companies doing business in the Philippines ft~om intet~ests, discounts, and a l l other items treated as gross income under the Tax Code. Accordingly, your income derived from investing the excess funds in short-term market placements through commercial banks constitutes income hence, subject to the 5~ gross receipts tax under said Section. The fact that it has been subjected to the 20~ final withholding income tax under Section 50 (a) is immatet~ial. Besides, the withholding tax is imposed under

DISSENTING OPINION - C.T.A. CASE NO. 5434 9- Title II of the Tax Code while the finance tax is provided under Title V the~~eof." <BIR Ruling No. 223, Novembet~ 2, 1989) For as long as the basis for the claim for refund or tax credit certificate is based on the non-inclusion of the amount representing the final withholding income tax under Section 50(a) as part of the gross income subject to gross receipts tax, this dissenting opinion will stand. The fact that petitioner-claimant is able to establish by competent documentary and testimonial evidence is of no moment. For purposes of the amusement tax under Section 260 of the Tax Code, the tet~m gt~oss t~eceipts' embraces 'all the receipts' of the proprietor, lessee, or operator of the amusement place. The words 'all the receipts' refer to the total amount of cash received which becomes part of the funds of the taxpayer and does not include any money which has been specially earmarked by any law or legal rule or regulation for some othe~~ pe~~son othet~ than the pt~opt~ietot~, lessee or operator of the amusement place. Receipts means actually received <Philippine Long Distance Telephone Co. vs. Collector of Internal Revenue, G.R. No. L-3222, January 21, 1952) fat~ i t s e l f and not fo~~ othe~~s, fa~~ otherwise they would not be receipts <Manila Jockey Club, Inc. vs. Collectot~ of Intet~nal Revenue, CTA Case No. 205, April 15, 1958; Jai Alai Corporation of the Philippines vs. At~aneta, CTA Case No. 108, July 31, 1956 <Annotated, NIRC by Commissionet~ Jose At~anas, 1988 Edition, p. 687). I N VIEW OF ALL THE FOREGOING , I het~eby register my dissent to the majority opinion and vote for the denial of the entire claim for refund for lack of legal bases. WHEREFORE , I vote to DENY the petition for lack of legal bases.