cta_decision CTA Case No. EB 3198EB 3198 2026-06-17

FMC Switzerland II GMBH doing business under the name FMC Switzerland II GMBH, Manila, ROHQ v. COMMISSIONER OF INTERNAL REVENUE

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY ENBANC FMC SWITZERLAND II GMBH, doing CTA EB NO. 3198 business under the name FMC (CTA CASE NO. 10727) SWITZERLAND II GMBH, MANILA ROHQ, Members: Petitioner, Present: -versus- Ringpis-Uban, P.j., Bacorro-Villena, Modesto-San Pedro, Reyes -Fajardo, Cui-David, Ferrer-Flores, and Angeles, ]]. COMMISSIONER OF INTERNAL Promulgated: REVENUE, Respondent. X------------------------------------------------------------------------------------------ -------X DECISION RINGPIS-LIBAN, P.J.: Before this Court is the Petition for Review flied by petitioner "'vithin the extended period on August 27, 20251 assailing the Decision dated April 3, 20252 and Resolution dated July 30, 2025,3 promulgated by the T hird Division of this Court in CTA Case No. 10727 entitled FMC Switzerland II GMBH, doing business under the name FMC Switzedand II GMBH, Manila ROHQ vs. Commissioner ofInternal Revenue. The dispositive portion of the Decision reads: "WHEREFORE, premises considered, the present Petition for Review is DISMISSED for lack of jurisdiction. ;V 1 Rollo, CT t\ EH 'o. 3198, pp.9-50, with Annexes. 2 Ibid. , pp. 52-67. 3 Ibid., pp. 70-75.

DECISIO~ CT\ EB 1'0. 3198 (CT.\ Case :\o. 10727) SO ORDERED." The dispositive portion of the Resolution dated July 30, 2025 reads: "WHEREFORE, premises considered, petitioner's Motion for Reconsideration [on the Decision promulgated on April 3, 2025} is DENIED for lack of merit. SO ORDERED." THE PARTIES Petitioner is the regional operating headquarters in the Philippines of FMC Switzerland II GMBH, a foreign corporation duly registered and existing under the laws of Switzerland. It was issued a License to Transact Business in the Philippines by the Securities and Exchange Commission (SEC) under Company Registration No. FS201735590 on October 20, 2017. It is also registered with the Bureau of Internal Revenue (BIR), as a VAT taxpayer, under Taxpayer's Identification Number (TIN) 009-862-335-000, with address at 10/F Net Lima, The Net Metropolis, 5'h Ave. cor. 26'h St., Bonifacio Global City, Fort Bonifacio, Taguig City. Respondent Commissioner of Internal Revenue (CIR) is empowered to perform the duties of his office, including acting upon protests and approval of claims for refund or tax credit as provided by law and implementing regulations" THE FACTS The facts of the case as found by the Court in Division are as follows: 5 "On June 30,2021, petitioner filed before the BIR- VAT Credit Audit Division (VCAD), an administrative claim for VAT refund in the total amount of !'1 0,497,680.23, representing the unutilized input taxes that are allocable and direcdy attributable to its VAT zero-rated transactions as declared in its Quarterly VAT Returns for the period .April1, 2019 to December 31, 2019. A Tax Verification Notice No. TVN 201800143186 dated June 30,2021 was issued to petitioner, authorizing Revenue Officer (RO) Jonathan G. Simon to verify petitioner's supporting documents and/or pertinent records relative to the claim for VAT ,--1 ~ Dt'cision, pp. 1-2. _;Decision, pp. 53-56. citation:; omittcJ.

Page 3 of13 DECISIO:-J CT.\ EB NO. 3198 (CL\ Case No. 10727) refund covering the taxable period Aptil 1, 2019 to December 31, 2019. On October 20, 2021, petitioner received a letter from the BIR signed by Ms. Maria Luisa I. Belen, Assistant Commissioner - "\ssessment Service, denying its adrninistrative claim for refund in the amount of 1'1 0,497,680.26. On February 2, 2022, petitioner filed the present Petition for Review. On May 4, 2022, respondent filed his Answer to the Petition for Review. On July 25, 2022, respondent transmitted to this Court the BIR Records of this case, consisting of 551 pages in one (1) folder. The Pre-Trial Conference was set and held on July 28, 2022. Prior thereto, petitioner's Pre-Ttial Btief was filed on June 27, 2022, while Respondent's Pre-Ttial Brief was submitted on July 25, 2022. On August 16, 2022, the parties submitted their Joint Stipulation of Facts and Issues, which was approved by the Court in its resolution dated September 7, 2022, thereby deeming the termination of the Pre-TriaL The Pre-Trial Order was then issued on October 4, 2022. Trial then ensued, \vith the parties presenting and offering their respective testimonial and documentary evidence. Petitioner offered the testimonies of the following individuals, namely: (1) i'vls. Zhyra Mae I. Sabado, petitioner's Finance and Accounting Lead; and (2) Ms. Elaine E. De Guzman, the Court-commissioned Independent Certified Public Accountant. The Report of the ICPA was submitted on October 28, 2022. On November 25, 2022, petitioner filed its Formal Offer of Evidence, to which respondent filed his Comment (to Petitioner's Formal Offer of Evidence) on December 5, 2022. In the Resolution dated February 10, 2023, the Court admitted petitioner's offered exhibits, except the following: ../ /

Page 4 of13 DECISIO'-i CT.\ EB NO. 3198 (CL\ Case No. 10727) 1. Exhibit "P-18", for failure to present the original for comparison; 2. Exhibit "P-20", for failure of the exhibit f01mally offered and identified to correspond with the document actually marked; 3. Exhibits "P-43.2", "P-43.6", "P-43.11", "P-43.13" and "P-43.17", for being written in an unofficial language not accompanied with a translation in to English or Filipino, pursuant to Section 33, Rule 132 of the Rules of Court; and 4. Exhibits "P-49.2.74" to "P-49.2.75", for not being found in the records of the case. On March 6, 2023, petitioner filed its Motion for Partial Reconsideration to the Resolution dated February 10, 2023 with Motion to Set Commissioner's Hearing. Respondent failed to file its comment thereto. In the Resolution dated May 23, 2023, the Court granted petitioner's J\Iotion to Set Commissioner's Hearing for the purpose of comparison and marking of Exhibits "P-43.2", "P-43.6", "P-43.11", "P-43.11", "P-43.13" and "P-43.17", while holding in abeyance the resolution of the said Motion for Partial Reconsideration. However, it is noted that no additional documents were marked for the petitioner during the scheduled commissioner's hearing. For his part, respondent offered the testimony of RO Jonathan G. Simon. On August 17, 2023, respondent flied his Formal Offer of Evidence, to which petitioner filed its Comment/Opposition (To the Respondent's Formal Offer of Evidence) on August 22, 2023. In the Resolution dated October 13, 2023, the Court admitted all of respondent's exhibits; and partially granted petitioner's Motion for Partial Reconsideration to the Resolution dated February 10, 2023. The Court admitted Exhibits "P-49.2.74 to "P-49.2. 75", but still denied Exhibits "P-43.2", "P-43.17", for being written in an unofficial language not accompanied with a translation into English or Filipino, pursuant to Section 33, Rule 132 of the Rules of Court.(""

Page 5 of13 DECISIO;-.j CT.\ EB NO. 3198 (CT.\ Case No. 10727) On November 14, 2023, petitioner flied its Motion to Admit Documentary Exhibits, to which respondent filed his Manifestation (in lieu of Comment) on December 11, 2023. In the Resolution dated February 15, 2024, the Court admitted Exhibits "P-43.2", "P-43.11", "P-43.13" and "P-43.17", but still denied the admission of Exhibit "P-43.6". XXX XXX XXX The case was submitted for decision on April 12, 2024." On April 3, 2025, the Court in Division issued the assailed Decision. On April 14, 2025, petitioner ftled its Motion for Reconsideration [on the Decision promulgated on April 3, 2025)" seeking reconsideration of the Decision dated April 3, 2025. On May 6, 2025, respondent filed its Motion to Admit (Attached Comment dated iVIay 5, 2025 Re: Petitioner's Motion for ReconsiderationJ-1 On May 16, 2025, the Court in Division issued a Minute Resolution8 granting the Motion to Admit, and ordered the same submitted for resolution. On April 30, 2025, the Court in Division issued the assailed Resolution. On May 15, 2025, the Court En Bane received petitioner's "Motion for Extension of Time to File Petition for Review,"9 praying for an extension of fifteen (15) days from August 16, 2025 or until September 1, 2025, within which to file the Petition for Review. On August 27, 2025, petitioner flied the instant Petition for Review.10 On September 17, 2025, the Court En Bane issued a Minute Resolution11 ordering respondent to file Comment on the Petition for Review, not a Motion to Dismiss, within ten (1 0) days from notice. On October 3, 2025, the Court En Bane received respondent's "Comment (Re: Petitioner's Petition for Review dated 20 August 2025)." 1~ ' (,Docket, Cl'.\ C:a~c :'-Jo. 10727, pp. 70-75. 7 Ibid.. rr� 656-667. 1\ Ibid., p. 669. ') CL\ EH ~CJ. 31 Yti, pp. 1-5. 111 lbiJ., pp. 9-50, with .\nnr:xc:->. II Ibid., p. 18. ~~Ibid., pp. 79-88.

Page 6 of13 DECISION CT.\ EB NO. 3198 (CT.\ Case :\o. 10727) On October 16, 2025, the Court En Bane issued a Minute Resolution13 which noted respondent's "Comment (Re: Petitioner's Petition for Review dated 20 August 2025), and ordered the case submitted for Decision. THE ISSUE "Whether or not the Court in Division erred in dismissing the case for lack ofjurisdiction." THE ARGUMENTS Petitioner states that it filed its refund claim on June 30, 2021 after the TRAIN Law took effect on January 1, 2018. Thus, the relevant provisions of the TRAIN Law on VAT refund should govern in the determination of the timeliness of the judicial claim. Petitioner claims that the BIR issued its decision on the administrative claim on October 20, 2021 or ninety-five (95) days from the filing of the VAT refund application on June 30,2021. The said decision was received by petitioner on December 14, 2021. Petitioner has until January 13, 2022 within which to file an appeal before this Court. Petitioner submits that Section 7(a)(2) of Republic Act (RA.) No. 1125, as amended, is a general provision on modes of appeal which must give way to Section 112(c), a special law. Hence, petitioner insists that taxpayers are allowed to wait for the decision of the BIR on its VAT refund claims, and in case of an adverse decision by the BIR, the taxpayer is accorded with the 30-day period within which to file its appeal with this Court. Conversely, respondent states that upon the filing of the administrative claim, petitioner is given a period of 90 days within which to (1) grant to refund or issue the tax credit certificate for creditable input taxes; or (2) make a full or partial denial of the claim for a tax refund or tax credit. The failure on the part of respondent to act on the application within the ninety (90)-day period shall be deemed a denial of the protest. Respondents asserts that judicial claim shall be filed within a period of thirty (30) days after receipt of respondent's decision or after the expiration of the ninety (90)-day period, whichever is sooner. v / 11 Ibid., p. 7 8.

DECISIO!' CT\ EB NO. 3198 (CT.\ Case No. 10727) Thus, any claim filed less than or beyond the 90+30 days period provided by the Tax Code is outside the jurisdiction of this Court. THE RULING OF THE COURT ENBANC Timeliness ofthe Petition for Review On April 8, 2025, the petitioner received the Decision of the Court in Division. On April14, 2025, petitioner filed a Motion for Reconsideration of the said Decision. On July 30, 2025, the Court in Division issued the assailed Resolution denying petitioner's motion. Said Resolution was received by petitioner on August 1, 2025. From receipt of the said Resolution on August 1, 2025, petitioner had until August 16, 2025 within which to file the Petition for Review before the Court En Bane. On August 15, 2025, petitioner filed a "Motion for Extension of Time to File Petition for Review," praying that petitioner be given an additional period of fifteen (15) days from August 16, 2025, or until September 1, 2025 within which to file its Petition for Review. The Motion was granted in the Minute Resolution dated August 20, 2025l4 Hence, petitioner was granted until August 31, 2025, within which to file its Petition for Review. The "Petition for Review" was filed on August 27, 2025. Hence, this Petition for Review was timely filed. The Court in Division correctly ruled that it has no jurisdiction to entertain petitioner's appeal. After due consideration of the facts, issues and arguments raised by the parties, the Court En Bane finds no reason to reverse the assailed Decision and Resolution of the Court in Division. The Court En Bane notes that the arguments presented herein are a mere rehash of the arguments offered by petitioner in its Motion for Reconsideration before the Court in Division. Nonetheless, the Court En Bane shall pass upon petitioner's arguments. Sections 7 and 11 of R.i\ No. 1125,15 as amended by R.i\. No. 9282,16 provide, in part, as follows, to wit: /V 1 ~ Rollo, CT.\ EB ~o. 3151, p. 6. IS .. \N .\CT CH.J�:.\T!N<_; Tl fL C()Ul\T ( )]" T.\X ;\PPE.\l.S. "'.IN .\CT 1�:Xl'.INDINC; T1 JJo: JUR1S1J1C:T10N 01� Tl II�: C:OL'IU 01� T.IX .ll'l'l�:.ILS (CT. I). 1�:1.1�:\'.ITINC; ITS R. INK TO Tl II�: Ll �:\'1-:L C11' .\ C:C lLI.l '.(;!.IT I'� C:CJLJI('] WIT I I S1'1 �:CJ. IL JL:JUSlJ IC:T!Oi': ,INlJ J�:NI "IRC INC; ITS ~IEi\fBJ.:RSI flP, .\,\IJ�:~DlNC I�'OR 'J'J TE PURP< )SJ�: C:ERT.\IN SH:'J'H )NS CW REJlllHLJC: .\CT NO. 1125,

DECISIO"J CT~\ EB NO. 3198 (CT~\ Case No. 10727) "SEC. 7. Jurisdiction. - The CTA shall exercise: (a) Exclusive appellate jurisdiction to review by appeal, as herein provided: (1) Decisions of the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the National Internal Revenue Code or other laws administered by the Bureau of Internal Revenue; (2) Inaction by the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the National Internal Revenue Code or other laws administered by the Bureau of Internal Revenue, where the National Internal Revenue Code provides a specific period for action, in which case the inaction shall be deemed a denial; XXX XXX XXX SEC. 11. Wbo Mqy Appeal,� ivfode ofAppeal,� Ejfed ofAppeal. - Any party adversely affected by a decision, ruling or inaction of the Commissioner of Internal Revenue, the Commissioner of Customs xxx may file an appeal with the CTA within thirty (30) days after the receipt of such decision or ruling or after the expiration of the period fixed by law for action as referred to in Section 7(a)(2) herein. XXX XXX xxx." (Empbases and tmderscoring added) Section 112 of the National Internal Revenue Code (NIRC) of 1997, as last amended by Republic Act No. 10963,17 provides, in part, as follows: "SEC. 112. Refunds or Tax Credits ofInput Tax.- (A) Zero-Rated or Effectively Zero~Rated Sales. - Any VAT- registered person, whose sales are zero-rated or effectively zero/ ern .\S .\~IFNDLD, IERWISL K~O\\'N .\S TJ IE L-\\\' C:RI�:.\TINC TilE CUURT <W T.\X .\PPE.\LS, .\ND l'l lR CHill]( l'L:JU'OSJ�:S. ".IN .IC:'J .1\IJ�:NDING SJ�:CJ'llll'S 5, 6. 2"'. 25. 27. 31, 32, 33, 3"'. 51, 52. 56, 57, 58. 7+, 79, 84, 86, 90. 91, 97, 99,100, 101,106,107,108,109,110,112,11-1-,116,121.128,129, HS. 1-1-8,1-1-9,151.155,171, 17--J., 175,177,178,179,180,181. 182, 183, 186, 188, 189, 190, 19 L 192, 193, 19-1-, 195, 196, 191, 232, 236, 237, 249, 25-+, 26-+, 269, . \ND 288; CH.L \TJ~( i �:CJ N I�:W SJ�:C' J'l( lNS 51~. I, 148~. I. 150~. I, !50~H, 237-. I, 26~~. I, 264~H .. I~ IJ 265~. I;. INIJ J(J�:l'J�: ll.INC; Sl IONS 35. 6:2, .\ND 39; ,\LL Lll\DJ�:H. REPUBLIC .\C:T 8-1-:2-1-, ()'l'J IER\\'JSE KN0\'\1\ .\S '1'1 IE N,\TJON.\L INTERN.\], IU�:\'I�:N U1�: C:CJIJJ�: ()Ji !997, .IS .l~li�:Nili�:JJ, .IND 1�()1( Cl'I'I II-:R I'UH I'CJSI �:S

DECISION CT,\ EB ).10. 3198 (CT\ Case No. 10727) 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)(1), (2) and (b) and Section 108(B)(1) and (2), the acceptable foreign currency exchange proceeds thereof had been duly accounted for in accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP): Provided, jitrthn~ That where the taxpayer is engaged in zero-rated or effectively zero-rated sale and also in taxable or exempt sale of goods of properties or services, and the amount of creditable input tax due or paid cannot be directly and entirely attributed to any one of the transactions, it shall be allocated proportionately on the basis of the volume of sales: Provided,finai!JI, That for a person making sales that are zero-rated under Section 108(B)(6), the input taxes shall be allocated ratably between his zero-rated and non-zero-rated sales. XXX XXX XXX (C) Period within whidJ Refund ofInput Taxes shall be Made. -In proper cases, the Commissioner shall grant a refund for creditable input taxes within ninety (90) days from the date of submission of the official receipts or invoices and other documents in support of the application filed in accordance with Subsections (A) and (B) hereof: Provided, That should the Commissioner find that the grant of refund is not proper, the Commissioner must state in writing the legal and factual basis for the denial. In case of full or partial denial of the claim for tax refund, the taxpayer affected may, within thirty (30) days from the receipt of the decision denying the claim, appeal the decision with the Court of Tax Appeals: Provided, however, That failure on the part of any official, agent, or employee of the BIR to act on the application within the ninety (90)-day period shall be punishable under Section 269 of this Code." Jurisdiction over the subject matter or nature of an action is fundamental for a court to act on a given controversy, and is conferred only by law and not by the consent or waiver upon a court which, otherwise, would have no jurisdiction over the subject matter or nature of an action. Lack of jurisdiction of the court over an action or the subject matter of an action cannot be cured by the silence, acquiescence, or even by express consent of the parties. If the court rY

DECISIO~ CT~\ EB NO. 3198 (CT~\ Case No. 10727) has no jurisdiction over the nature of an action, its only jurisdiction is to dismiss the case. The court could not decide the case on the merits. 18 A review of the records of the case discloses that petitioner timely filed its administrative claim for VAT refund in the amount of P1 0,497,680.23, for the period :\pril1, 2019 to December 31,2019, with the BIR's VCAD on June 30, 2021. Then, from the filing of the administrative claim on June 30, 2021, respondent had ninety (90) days or until September 28, 2021 to act on the administrative claim. In the interim, respondent issued Revenue Memorandum Circular (RMC) No. 101-2021 dated September 17, 2021, 19 in relation to Revenue Regulations (RR) No. 27-2020,20 which suspended the ninety (90)-day period of processing of all VAT refund claims pending with VCAD during temporary closure until October 3, 2021. Accordingly, the period from September 17, 2021 to October 3, 2021 shall be excluded from the counting of the ninety (90)-day period for the processing of refund claim. The remaining days from September 17, 2021 to the original deadline of September 28, 2021 is twelve (12) days. Thus, respondent still had twelve (12) days from October 4, 2021 or until October 15, 2021 to act on the refund claim. However, respondent issued the denial letter on October 20, 2021. There is already an inaction on the part of respondent to act on the administrative claim within the ninety (90)-day period. Thus, petitioner should have filed the petition before the Court in Division within a period of thirty (30) days from October 15, 2021, or until November 15, 2021. Meanwhile, the Supreme Court issued several administrative circulars21 ordering the physical closure of courts and suspending the time for filing of petitions and appeals, motion, pleadings or other court submissions in the National Capital Region (NCR) and nearby provinces due to the surge of Covid-19 cases from September 16, 2021 and shall resume seven (7) days from October 20, 2021 or until October 27, 2021. Based on the foregoing incidents, the thirty (30)-day reglementary period to file an appeal on respondent's inaction before the Court in Division was suspended from September 16,2021 and resumed on October 27, 2021. Thus, the counting of the thirty (30)-day period within which to appeal the refund claim was reckoned from October 27, 2021 or until November 26, 2021. Considering that petitioner's judicial claim22 was filed before the Court in Division only on February 2, 2022, the same was already filed out of time. (11' !H j"Vippon E:-.:pres.� (Pbilippim.�) Co!p. I'J. CoJJJmi.lsiom:r oflntemal Re!NI!Ift', c; .R. No. 185666, ]."cbruary ..J., 2015. l'J (Extension of the DcaJiinc for the hling of .\pplication:-; and Su:-;pcn:-;ion of thl' Ninety (90) Day Processing of \'aluc .\ddcd Tax (\' .-\'1) Refund Claims Pur:-;uant to Section 112 of the Tax Code of 1997, ,\:-; .\mended by the R.. \. No. 10963 (l'R.\1:\1 l.aw) with the \',\T CrcJit .\udir Di\�i~ion (\'C.\D) 2o (Regulation~ Su~pending the hling and Ninety (90)-Day Proce~~ing of\' alue-. \dded Tax (\�.\'I) Refund Claim~ .\nchored Under Section 112 of the T. \X Code of !997, a,; amended, in Relation to Section 4(tt) of Republic .\ct (R.. \.) No. 11-l-9-t, Utlu;nvi,;c Kmnvu a:< the "'liayanilmn to lkcon:r a:< One .\c('�. 21 .\C: 1\:o. 71-2021 i~~ued on September 15,2021, .\C ~o. 75-2021 i,;~uet.l on October 1, 2021, .\C: :\o. 83-2021 October 18,2021, and .\C No. 85-2021 i~:<ueJ on October 27,2021. 22 Petition for H.evie\\', Docket, CT.\ C:a:<c l'.:o. 10727, pp. 6-38.

Page 11 of13 DECISIO'J CT.\ EB ?-JO. 3198 (CT.\ Case No. 10727) The ruling of the Supreme Court in Taihei Allteth Constmction (PhiL) Im: vs. Commissioner of Internal Revenui'3 with regard to the mandatory and jurisdictional periods is relevant to the instant case, viz: In Applied Food Ingredients Company, Im: v. Commissioner of Internal Revenm, the Court ruled that a claim for tax refund or credit, like a claim for tax exemption, is construed stricdy against the taxpayer. One of the conditions for a judicial claim of refund or credit under the VAT System is with the 120+30-day24 mandatory and jurisdictional periods. Thus, strict compliance with the 120+30-day periods is necessary for such a claim to prosper. Moreover, this Court En Bant agrees with the findings of the Court in Division that the TRAIN Law did not repeal the provisions of RA No. 1125 as regards the jurisdiction of the CTA over the "inaction of the CIR as being deemed a denial", thus appealable to the Court of Tax Appeals. We quote with approval the pertinent portions of the assailed Resolution: 25 The amendments introduced by the TRA.JN law should be read in conjunction with the provisions of R\ No. 1125, as amended by RA No. 9282 specifically defining the jurisdiction of the CTA The Supreme Court had the occasion to rule on the nature of RA No. 1125 as a special law in the case of Philippine National Oil Company vs. The Honorable Comt ofAppeals, and we quote, to wit: Republic Act No. 1125 is a special law dealing with a specific subject matter- the creation of the CTA, which shall exercise exclusive appellate jurisdiction over the tax disputes and controversies enumerated therein. (EmphaJis supplied) Being a special law, R\ No. 11125 as amended by RA No. 9282, could not have been repealed by the TR-\IN Law (which is a general law), unless there is an express provision to that effect. Basic in statutory construction is the rule that the enactment of a later legislation which is a general law cannot be construed to have repealed a special law unless expressly so stated. As a rule, repeal by implication is frowned upon, unless there is a clear showing that the latter statute is so irreconcilably inconsistent and repugnant to the existing law that they cannot be reconciled and made to stand ft" 2_, G.R. l\'o. 258791, December 07,2022. 24 Now 90+30-Uay. 2-' Rc~olution, pp. -1--5, citations omitted.

Page 12 of13 DECISIO" CT.\ EB NO. 3198 (CL\ Case No. 10727) together. The provisions of Section 112 (C), as amended by the TR/\IN Law, can stand together with the provisions of RA No. 1125, as amended by RA. NO. 9282, and there is nothing inconsistent and repugnant in both laws. Be it noted that the T~\IN Law did not expressly repeal the provisions of RA No. 1125 as regards the jurisdiction of the CTA over the "inaction" of the CIR as being "deemed a denial", hence appealable to this Court. The Repealing Clause of Section 86 of the T~\IN Law contains laws/transactions that were expressly repealed upon its enactment and readily reveals that Section 7(a)(2) of RA No. 1125 is not included in the list. The jurisdiction of the CTA over inaction of the BIR in the matter of claims for refund remains amidst changes introduced by the T~\IN Law especially when it comes to judicial appeal. Significant is the provision found in Section 7(a)(2) of~\ No. 1125, as amended by ~\ No. 9282, which specifically states that "where the NIRC provides a specific period of action, in which case the inaction shall be deemed a denial". The TRAIN Law reduced the period of action by revenue officials on VAT refund claims from one hundred twenty (120) days to ninety (90) days, deeming it a denial if no action is done within the said period, in which case, judicial appeal is already available and necessary. (Emphasis supplied) Therefore, petitioner's failure to timely ftle the Petition for Review before the Court in Division within the thirty (30)-day period, that is from Oitober 27, 2021 or llntil November 26, 2021, rendered the "deemed a denial" decision of respondent, final and unappealable. The Court in Division correctly dismissed the case for lack of jurisdiction. In view of the foregoing, since there are no new matters or issues raised in the Petition for Review before the Court En Bane and there being no reversible error committed by the Court in Division, the Court En Bane finds no cogent reason to disturb the assailed Decision and Resolution. ACCORDINGLY, the Petition for Review is DENIED for lack of merit. SO ORDERED. ~�~)~ MA. BELEN M. RINGPIS-LIBAN Presiding Justice

DECIS!O'< CT~\ EB '<0. 3198 (CT~\ Case No. 10727) WE CONCUR: issent) STO-SAN PEDRO ~~r~~~~~ MARIAN 1~. REYES-FAJARDO Associate Justice th~~parate (I concur in Opinion) LANEE S. CUI-DAVID Associate Justice HENRY ~!GELES Associate Justice CERTIFICATION Pursuant to Article VIII, Section 13 of the 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. ~. ~ J-- MA. BELEN M. RINGPIS-LIBAN Presiding Justice

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY En Bane FMC SWITZERLAND II CTA EB NO. 3198 GMBH, doing business under the {CTA Case No. 10727) name FMC SWITZERLAND II GMBH, MANILA ROHQ, Present: Petitioner, RINGPIS-LIBAN, PJ, BACORRO-VILLENA, -versus- MODESTO-SAN PEDRO, REYES-FAJARDO, COMMISSIONER OF CUI-DAVID, INTERNAL REVENUE, FERRER-FLORES, ANGELES, JJ. Respondent. Promulgated: x------------------------------------ --- ------------x DISSENTING OPINION MODESTO-SAN PEDRO, J.: With due respect, I dissent with the majority opinion that the Court in Division lacked jurisdiction over this case. I am of the opinion that under the amendments made by Republic Act No. 10963 ("TRA IN') to the National Internal Revenue Code of 1997, as amended ("NIR C'), taxpayers were not allowed to elevate a judicial claim for refund from the inaction of the Commi ssioner of Internal Revenue ("CIR"). My reasons for such have been elucidated in detail elsewhere.1 Here, however, I simply observe that the present Decision is silent on the Petition's quotation of the transcripts for ( 1) the December 1, 201 7 meeting of the Bicameral See, for example, Citco International Support Services Limited - Philippines ROHQ v. Commissioner ofInternal Revenue, CTA EB No. 2900, August 7, 2025.

DISSEYIT\G OPI~dO:\ CTA EB 1\o. 3!98 (CTA Case No. 10727) Page 2 of2 Conference Committee; (2) the December 5, 20 I7 meeting of said committee; and (3) the November 27, 2017 Second Reading for TRAIN. To my mind, these clearly show that the removal of the "deemed denied" provision was part and parcel ofthe legislative intent behind TRAIN's amendments to Section 112(c) of the NIRC. The legislators behind TRAIN explicitly identified the parts about inaction as portions of the law to be deleted. Put another way, the provision on inaction was deliberately removed by the framers of the law. To rule that taxpayers could still elevate appeals from inaction while TRAIN was in effect, then, is to ignore the stated intent of the legislation and their deliberate act on exclusion. Considering that petitioner could not have raised an appeal from the CIR's inaction on its administrative claim, considering that neither the text of TRAIN itself nor the statements of the legislators behind the law supports treating inaction as a claim "deemed denied," I believe the Court in Division properly acquired jurisdiction over the judicial claim before it and should have ruled on the case's merits, rather than dismiss it. All told, I vote to, at the very least, PARTIALLY GRANT the instant Petition and either remand it to the Court in Division or directly rule on the refund claim's merits. stice

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY ENBANC FMC SWITZERLAND II CTA EB No. 3198 GMBH. , doing business (CTA Case No. 10727) under the name FMC SWITZERLAND II GMBH, Members: MANILA ROHQ, RINGPIS-LIBAN, P.J., Petitione r, BACORRO-VILLENA, MODESTO-SAN PEDRO, -versus- REYES-FAJARDO , CUI-DAVID, FERRER-FLORES, and ANGELES, JJ. COMMISSIONER OF Promulgated: INTERNAL REVENUE, R e s p o n de nt. ]{- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ]{ SEPARATE OPINION CUI-DAVID, J.: I concur in the d enial of the present Petition for Review for lack of merit. I likewise agree with the ponencia's view that, under the TRAIN Law, a taxpayer m ay file a judicial claim b efore the CTA based on the CIR's inaction after the la pse of the 90- day period. Despite the amendments introduced by the TRAIN Law, the CTA's appellate jurisdiction over the CIR's inaction remains valid under Section 7(a)(2),1 in relation to Section 112 " SEC. 7. Jurisdiction. -The CTA shall exercise: a. Exclusive appellate j urisdiction to review by appeal. as herein provided: 2. Inaction by the Commissioner of Internal Revenue in cases invol ving di sputed a ses ments. refunds of internal revenue taxes. fees or other charges, penalties in relations thereto. or other matters arising under the National Internal Revenue Code or other laws administered by the Bureau of Internal Revenue. where the National Internal Revenue Code provides a specific period of action. in which case the inaction shall be deemed a denial[.) SEC. I I. Who May Appeal: Mode ofAppeal: Effect ofAppeal. - Any party adversely affected by a decision. ruling or inaction of the Commissioner of Internal Revenue ... may fil e an appeal with the CTA within thirty (30) days after the receipt of such decision or ruling or afier the expiration of the period fixed by law for action as referred to in Section 7(a)(2) herein .

SEPARATE CONCURRING OPINION CTA EB No. 3198 (CTA Case No. 10727) FMC Switzerland II GMBH., doing business under the name FMC Switzerland II GMBH, Manila ROHQ v. Commissioner of Internal Revenue X------------------------------------------------------------------------------------------X of Republic Act (RA) No. 1125,3 as amended by RA No. 9282.4 These provisions expressly grant the CTA jurisdiction not only over decisions of the CIR but also over his inaction m cases where the law prescribes a specific period for action. However, with due respect, I take a different view regarding the CTA'sjurisdiction over judicial claims for VAT refund under Section 112 of the NIRC of 1997, as amended, particularly with respect to decisions of the CIR rendered beyond the 90-day period. In my view, the law does not require that the CIR's decision be received within the 90-day period. Thus, a judicial claim filed within thirty (30) days from receipt of the CIR's decision remains valid, even if such decision was issued after the expiration of the 90-day period. A timeline of the relevant events is as follows: Date Event Petitioner filed its administrative claim for VAT June 30, 2021 refund with the BIR VAT Credit Audit Division September 16, 2021 (VCAD). September 28, 2021 Court Operations suspended due to COVID-19 October 15, 2021 surge.s October 20, 2021 Original date of expiration of the 90-day period for the BIR to act. October 27, 2021 December 14, 2021 Extended date of expiration of the 90-day period.6 February 2, 2022 Petitioner received a denial from the BIR.7 Court operations resumed (e.g. filing and service of pleadings and motions in courts) in the National Capital Region8 Petitioner received a denial from the BIR.9 Petitioner filed its Petition for Review before the Court in Division. AN ACT CREATI:\Ci THE COURT OF TAX API'b\LS. AN ACT EXPANDING TilE JURISDICTION OF TilE COLRT OF TAX APPEALS (CTA). ELEVATI'JG ITS RANK TO THE LEVEL OF A COLLEGIATE COLR I WITH SPECIAL JL:RISDICTION AND ENLARGING ITS MEMBERSHIP. AMENDING FOR TilE PURPOSE CERTAIN SECTIONS OR REPUJLIC ACT NO. 1125. AS AMENDED. OTIIERWISE KNOWN AS TilE LAW CRFAEI'JG THE COURT OF TAX APPEALS. AND FOR OTIIER PURPOSES. SC Administrative: Circular (AC) No. 71-2021 dated September 15. 2021. On S~pl~mbcr 17. 202 I. the BIR issued RMC 1\o. 101-2021. \\ hich suspended the 90-da) period of processing of all VAT refund claims pending \Yith VC:\0 during temporary closure until October 3. 2021. Accordingly. the period from September 17. 2021 to October 3. 2021 is C\.Ciudcd from the counting of the 90-day period. The remaining days from September 17. 2021 to the original deadline of September 28. 2021 is 12 days: thus. the BIR had 12 days from October -L 2021. or until October 15. 2021 to act on the refund claim. En Bane (EB) Docket. p. 53. Decision dated April 3. 2025. The Facts. par. 3. SC AC 1'\o. 85-2021 Jat..::J October 27. 1021 EB Docket. p. 17. Petition for Revie\Y. IV. Statement otT acts. par. 33.

SEPARATE CONCURRING OPINION CTA EB No. 3198 (CTA Case No. 10727) FMC Switzerland II GMBH., doing business under the name FMC Switzerland II GMBH, Manila ROHQ v. Commissioner of Internal Revenue ){------------------------------------------------------------------------------------------X As the records show, the Petition for Review was filed on February 2, 2022, beyond the 90+30-day period. The extended 90-day period for respondent to act on the refund claim expired on October 15, 2021. Petitioner neither received a decision by that date nor filed a judicial claim within the subsequent 30- day period, which ended on November 26, 2021. 1o Consequently, the Court in Division dismissed the Petition for Review for lack of jurisdiction. Under the pre-TRAIN version of Section 112 (C) ofthe NIRC of 1997, as amended, the filing of a judicial claim for refund or tax credit of input VAT states: SEC. 112. Refunds or Tax Credits of Input Tax. - ... (C) 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 Subsection (A). In case of full or partial denial of the claim for tax refund or tax credit, or the failure on the part of the Commissioner to act on the application within the 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) In construing the afore-quoted prov1s10n, the Supreme Court, in Taihei Alltech Construction (Phil.), Inc. v. Commissioner ofInternal Revenuell (Taiher), opined that a taxpayer can file an appeal in one of two (2) ways: (1) file the judicial claim within 30 days after the Commissioner denies the claim within the 120- day period, or (2) file the judicial claim within 30 days from the expiration of the 120-day period if the Commissioner does not act within the 120 days. tu 30 days from the resumption or court operations on October 27. 2021. as per SC AC 1\o. 85-2021. 11 G.R. No. 258791. December 7. 2022 [Per J. Lazaro-.hn icr. Second DiYision ].

SEPARATE CONCURRING OPINION CTA EB No. 3198 (CTA Case No. 10727) FMC Switzerland 11 GMBH., doing business under the name FMC Switzerland 11 GMBH, Manila ROHQ v. Commissioner of Internal Revenue X------------------------------------------------------------------------------------------X In other words, a taxpayer whose claim for VAT refund is either denied or left unresolved by the Commissioner of Internal Revenue (CIR) may pursue judicial remedies under either of the two (2) scenarios: 1. If the CIR issues a decision within 120 days denying the claim, the taxpayer has 30 days from receipt of the decision to file ajudicial claim with the CTA; or 2. If the CIR fails to act within the 120-day period, such inaction is deemed a denial, and the taxpayer must file a judicial claim within 30 days from the expiration of the 120-day period. In Taihei, taxpayers were reminded that once the 120-day period lapses without any action from the CIR, they should no longer wait for a decision. The CIR's inaction within this period is deemed a denial of the administrative claim for refund. If the taxpayer fails to file a timely appeal, this "deemed denial" becomes final and unappealable. 12 Thus, the taxpayer must file an appeal within 30 days from the lapse of the 120-day waiting period. 13 In the case of Silicon Philippines, Inc. v. Commissioner of Internal Revenue14 (Silicon) cited in the Taihei case, the Supreme Court emphasized that the judicial claim for refund must be filed within thirty (30) days after receipt of the CIR's decision or after the expiration of the 120-day period, "whichever is sooner." 15 After the enactment of the TRAIN Law, Section 112(C) of the NIRC was amended to read as follows: SEC. 112. Refunds or Tax Credits ofInput Tax.- .... (C) Period within which Refund of Input Taxes shall be Made. - In proper cases, the Commissioner shall grant ~ a refund for creditable input taxes within ninety (90) days I: /d. 1' Taihei .�/!!tech Construction (Phil. J. Inc. ,._ ( �ammissioner o{"fn!anal !?ewnue. (J.R. 1\o. 258791. December 7. 2022 IP~r .!. Lazaro-Jmicr. Second DiYision]. citing Rohm .-!polio .\'emiconductor Phils. ,._Commissioner of Internal Re,�enue Cl.R. No. 168950. January 14. 2015 rPer C.J. S~reno. first Di\"ision]. 1_. G.R. "\Jo. 182737. March 2. 2016 fP~;;:rC.J. Sereno. First Di\ision]. 1.' l"aihei .--11/tech Conslruclion (flhi/.). Inc. r. Commissimlt'r o(/mana! Rnenue. G.R. No.25879L December 7. 2022 lPer .1. Lazaro-Ja\"ier. Second Oi\�ision ]. citing 5Jilicon Fhillj!pillt'S, Inc. r. Commission~:r (?( fn!emal Rerenue, G. R. "No. 182737. March 2.2016 [Per C.J. Sereno. First DiYision].

SEPARATE CONCURRING OPINION CTA EB No. 3198 (CTA Case No. 10727) FMC Switzerland 11 GMBH., doing business under the name FMC Switzerland 11 GMBH, Manila ROHQ v. Commissioner of Internal Revenue X------------------------------------------------------------------------------------------X from the date of submission of the official receipts or invoices and other documents in support of the application filed in accordance with Subsections (A) and (B) hereof: Provided, That should the Commissioner find that the grant of refund is not proper, the Commissioner must state in writing the legal and factual basis for the denial. In case of full or partial denial of the claim for tax refund, the taxpayer affected may, within thirty (30) days from the receipt of the decision denying the claim, appeal the decision with the Court of Tax Appeals: Provided, however, That failure on the part of any official, agent, or employee of the SIR to act on the application within the ninety (90)-day period shall be punishable under Section 269 of this Code. (Emphasis supplied) By way of comparison, the phraseology of Section 112(C) of the NIRC of 1997, as amended, before and after the effectivity of TRAIN Law, is presented below: NIRC TRAIN In case of full or partial denial of the In case of full or partial denial of the claim for tax refund or tax credit, or claim for tax refund, the taxpayer the failure on the part of the affected may, within thirty (30) Commissioner to act on the days from the receipt of the application within the period decision denying the claim, appeal prescribed above, the taxpayer the decision with the Court of Tax affected may, within thirty (30) Appeals: Provided, however, That days from the receipt of the failure on the part of any official, decision denying the claim or after agent, or employee of the BIR to the expiration of the one act on the application within the hundred twenty day-period, ninety (90)-day period shall be appeal the decision or the punishable under Section 269 of unacted claim with the Court of this Code. Tax Appeals. With the enactment of the TRAIN Law, Section 112(C) was amended to shorten the CIR's period to act on VAT refund claims from 120 days to 90 days. Notably, the amended provision no longer includes specific phrases recognizing the CIR's inaction as a "deemed denial" that could be appealed within a 30-day period, such as "or the failure on the part of the Commissioner to act on the application within the period prescribed above'' and "or after the expiration ofthe one hundred twenty day-period." The deletion of these phrases suggests a departure from the previous "deemed denial" doctrine.

SEPARATE CONCURRING OPINION CTA EB No. 3198 (CTA Case No. 10727) FMC Switzerland II GMBH., doing business under the name FMC Switzerland II GMBH, Manila ROHQ v. Commissioner of Internal Revenue X------------------------------------------------------------------------------------------X Instead, the amended Section 112(C) appears to contemplate that the judicial recourse or appeal to the CTA, pursuant to the TRAIN Law, may be availed of in only one scenario: within 30 days after the receipt of the CIR's decision/ruling denying the refund claim-whether the receipt was before or after the lapse of the 90-day waiting period. The implementing rules support this reading. Section 4.112-1(d) of Revenue Regulations (RR) No. 16-2005, 16 as amended by RR No. 26-2018, 17 explicitly provides that a taxpayer may appeal to the CTA within 30 days from receipt of the decision denying the refund claim. The regulation also allows the BIR to continue processing claims beyond the 90- day period, implicitly recognizing that a decision may be rendered even after the lapse of said period. The pertinent provision of Section 4.112-1 (d) states: SEC. 4.112-1. Claims for Refund/ Credit of Input Tax. - (d) Period within which refund/ credit of input taxes shall be made The 90-day period to process and decide shall start from the filing of the claim up to the release of the payment of the VAT refund: Provided, That, the claim/application is considered to have been filed only upon submission of the official receipts or invoices and other documents in support of the application as prescribed under pertinent revenue Issuances. In case of full or partial denial of the claim for tax refund, the taxpayer affected, may, within thirty (30) days from the receipt of the decision denying the claim, appeal the decision with the Court ofTaxAppeals (CTA): Provided, that failure on the part of any official, agent or employee of the BIR to act on the application within the ninety (90)-day period shall be punishable under Section 269 of the Tax Code, as amended. Provided, further, That, in the event that the 90- day period has lapsed without having the refund released to the taxpayer-claimant, the VAT refund claim may still 16 ConsolidutcLI Valul.':-1\ddcd Tax Regulation:::. of 2:005. or 17 Amends Certain Prmisions of RR ._No. 13-2018 to Jrnph:rnl!nt the 90-Day Processing Claim for VAT Refund under Section 112 (C) of the Tax Code of 1997. a::> Amemkd h: Republic Act {R.A.) No. 10963. Otherwise Known as the !"a., Reform for Acceleration and Inclusion or TRAIN.

SEPARATE CONCURRING OPINION CTA EB No. 3198 (CTA Case No. 10727) FMC Switzerland 11 GMBH., doing business under the name FMC Switzerland 11 GMBH, Manila ROHQ v. Commissioner of Internal Revenue )(------------------------------------------------------------------------------------------}( continue to be processed administratively. Provided however, That the BIR official, agent or employee who was found to have deliberately caused the delay in the processing of the VAT refund claim may be subjected to penalties imposed under said section. (Emphasis supplied) The Court must therefore recognize that a judicial claim filed within 30 days from receipt of a denial-regardless of whether the decision was rendered before or after the lapse of the 90-day period-is valid. To hold otherwise would unduly prejudice taxpayers by depriving them of one of the judicial remedies available under existing law. The failure of the BIR to act within the prescribed period should not operate to the taxpayer's detriment. It is the BIR officials responsible for the delay-not the taxpayer-who are subject to the penalties imposed by law. Taxpayers should not be penalized for relying on the provisions of the law that establish and expand the jurisdiction of the very court to which they seek recourse. Applying the foregoing, even assuming that petitioner received the CIR's denial only on December 14, 2021, the Petition for Review filed on February 2, 2022, was nevertheless filed out of time, as the 30-day period expired on January 13, 2022. In fine, under Section 112(C) of the NIRC of 1997, as amended by the TRAIN Law, in relation to Sections 7(a)(2) and 11 of RA No. 1125, as amended by RA No. 9282, and as reiterated in the Revised Rules of the Court of Tax Appeals (RRCTA), a taxpayer adversely affected by a decision, ruling or inaction of the CIR may appeal to the CTA as follows: 1. If the CIR denies the claim within the 90-day period, the affected taxpayer may appeal to the CTA within 30 days from receipt of the decision denying the claim. 2. If the CIR fails to act within the 90-day period, the affected taxpayer may, under Section 7(a)(2) of RA No. 1125, as amended by RA No. 9282, treat the inaction as a denial and may appeal to the CTA within 30 days from the lapse of the 90-day "specific period of action." 3. If the taxpayer chooses to wait and receives a denial after the 90-day period, the affected taxpayer may still appeal to the CTA within 30 days from receipt of the

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