OCEANAGOLD (PHILIPPINES), INC. v. COMMISSIONER OF INTERNAL REVENUE

REPUBLIC OF TH E PHILIPPINES COURT OFTAX APPEALS QUEZON CITY SPECIAL FIRST DIVISION OCEANAGOLD CTA Case No. 9736 (PHILIPPINES), INC., Members: Petitioner, - versus - DEL ROSARIO, P.]., Chairperson, MANAHAN, and COMMISSIONER OF REYES-FAJARDO lL INTERNAL REVENUE, Prom ulgated: Respondent. X------- - -- ------- - - - -- - - - ------ - - DECISION REYES-FAJARDO, J. : This Petition for Review 1 filed on Decen1ber 19, 2017, by petitioner Oceanagold (Philippines), Inc. prays for the can cellation of deficiency excise tax assessment issued by respond en t Comn1issioner of In ternal Revenue against Oceanagold (Philippines), Inc. for taxable year (TY) 2013, in the amount of P221,136,013.14, inclusive of interest and administrative penalties.2 PARTIES Petitioner Oceanagold (Philippines), Inc. is a corporation organized and existing under the laws of the Philippines, w ith principal office at the 2 nd Floor, CJV Bu ild in g, 108 Agu irre St., Legaspi Village, Makati City.3 Docket - Vol. I, pp. 10-44, with a nnexes. 2 Statement of the Case, Pre-Trial O rder dated October 2-1, 2019, Docket - Vol. III, p. 1254. 3 Exhibit " P-1," Docke t - Vol. IV, p. 13-15 to 1355.

DECISION CTA Case No. 9736 On the other hand, respondent is the duly appointed Commissioner of Internal Revenue who is tasked to assess and collect all national internal revenue taxes, fees and charges, and enforce all forfeitures, penalties, and fines connected therewith. H e holds office at the Bureau of Internal Revenue (BIR) National Office Building, Agham Road , Diliman, Quezon City.4 FACTS Petitioner received a Letter of Authority (LOA) No. 121-2014- 00000158 d ated November 24, 2014, issued by Nestor S. Valeroso, OIC- Assistant Commissioner Large Taxpayers Service, authorizing Revenue Officers Thelma Pilar, Rona Marcellano, and Dalisay Umlas and Group Supervisor Hermania Cercado to exam ine its books of accounts and other accounting records for all in ternal revenue taxes including d ocumentary stamp tax and other taxes, for the period from January 1, 2013 to December 31, 2013.5 On December 13, 2016, petitioner received respondent's undated Preliminary Assessment Notice (PAN), w ith Details of Discre p ancies.6 On December 28, 2016, petitioner filed its protest to the PAN, refuting the findings of d eficiency income tax (IT), value-added tax (VAT), expanded w ithholding tax (EWT), fringe benefit tax (FBT), withholding tax compensation (WTC), excise tax (ET), documentary stamp tax (DST), an d administrative penalties.? On February 1, 2017, petitioner received respondent's Formal Letter of Demand (FLD) with Details of Discrepancies, assessin g it for deficiency IT, VAT, EWT, FBT, WTC, ET, DST, and administrative penalties in the amount of !>816,484,285.75, inclusive of interest s Par. 1, Stipulation of Facts, joint Stipulntion of Fncts nnrl /ssnes (JSFI), Doc ke t - Vol. III, p. 1111. 5 Pa r. 2, Sti pulation of Facts, JSFI, Docket- Vol. III, p. 1111; Exhibit " P-51," Docke t - Vol. IV, p . 1877. 6 Exhibit " P-52," Docke t- Vol. IV, pp. 1879 to 1888. 7 Exhibit " P-53," Docke t - Vol. IV, pp. 1889 to 1902. 8 Pa r. 3, Stip ulation of Facts, JSFI, Docke t - Vol. III, p. 1112; Exhi bit " P-54," Docket - Vol. IV, pp. 1903 to 1924.

DECISION CTA Case No. 9736 On March 2, 2017, petitioner filed its Protest to the FLD.9 On November 20, 2017, petitioner received respondent's Final Decision on Disputed Assessment (FDDA) dated October 16, 2017, assessing it for deficiency taxes, surcharge, and interest in the reduced amount of P262,678,770.49, computed as follows:1D Tax Basic Surcharge Interest Total Type Income 4,255,439.55 3,870,569.75 3,059,188.20 7,314,627.75 tax P3�870�569.75 VAT 266,442.94 200,598.00 467,041.45 EWT 32,647.99 27,030.75 59,678.74 FBT Excise 1,434,660 .73 1,087,983.81 2,522,644.54 tax 125,1 77,799 .00 95,958,214.14 221,136,013.14 DST 15,482,279.00 11,825,916.12 31,178,764.87 Total P146�649�269.21 P112�158�931.53 P262�678�770.49 On November 29, 2017, petitioner paid the foregoing deficiency tax assessments, save for the ET assessment.11 On December 19, 2017, petitioner filed a Petition for Review,12 docketed as CTA Case No. 9736, initially raffled to the Third Division of the Court. On March 22, 2018, respondent filed his Answer,13 within the extended period granted by the Court.14 On June 21, 2018, the Pre-Trial Brief for Petitioner was filed,1s while on May 20, 2019, Respondent's Pre-Trial Brief was submitted.16 9 Exhibit "P-55," Docket- Vol. IV, pp. 1925 to 1941. 10 Par. 4, Stipulation of Facts, JSFI, Docket- Vol. III, p. 1112. Exhibit " P-57," Docket - Vol. IV, pp. 1945 to 1948. 11 Exhibits "P-58" to " P-62," Docket- Vol. IV, pp. 1950 to 1964. 12 Docket- Vol. I, pp. 10 to 52. 13 Docket - Vol. I, pp. 248 to 257. H Docket- Vol. I, p. 240 and p. 246. 1s Docket - Vol. 2, pp. 820 to 845. 16 Docket- Vol. 2, pp. 987 to 991.

DECISION CTA Case No. 9736 Page 4 of21 The Pre-Trial Conference was initially set on June 26, 2018.17 Under Resolution dated July 4, 2018, the Court reset the Pre-Trial Conference to October 2, 2018.18 By Order d ated September 25, 2018, this case was transferred to the First Division of the Court, and the Pre-Trial Conference was cancelled and reset until further notice.19 Through Resolution d ated January 15, 2019, the Court referred the case to m ediation in the Philippine Mediation Center - Court of Tax Appeals. 20 H owever, the parties failed to reach an agreement.21 Thus, in the Resolution d ated April 10, 2019, the Court set this case for Pre-Trial Conferen ce on May 30, 2019.22 On May 29, 2019, petitioner filed an Omnibus Motion A. To Take Judicial N otice of CTA 3rd Division's Resolution in Oceanagold (Philip pines), Inc. v. C01nm issioner of Internal Revenue Code, CTA Case N os. 8995 & 9034 dated July 20, 2018; B. To Defer Pre-trial Conference, 23 to w hich respondent filed an Opposition (Re: Petitioner's Motion to Take Jud icial Notice of CTA 3rd Division's Resolution in Oceanagold (Philippines), Inc. vs . Commissioner of Internal Revenue, CTA Case Nos. 8995 & 9034 dated July 20, 2018) on June 7, 2019.24 In the Resolution d ated July 24, 2019, the Court denied petitioner's Omnibus Motion. 2:; On July 25, 2019, the Pre-Trial Conference was held.26 O n A u gus t 9, 2019, the p arties file d the ir Joint Stipulation of Facts and Issues,27 on the basis of which, the Court issued The Pre-Trial Order dated October 24, 2019.28 17 Notice of Pre-Trinl Colljerwce da ted March 27, 2018, Docke t - Vo l. I, pp. 261 to 263. 18 Docket - Vol. 2, p. 969. 19 Docke t - Vol. 2, p . 970. 20 Docke t - Vo l. 2, pp. 973 to 974. 21 Mediator's Report, Docke t - Vol. 2, pp. 975 to 982. 22 Docket - Vol. 2, p. 984. 23 Docket - Vo l. III, pp. 1012 to 1020. 24 Docket- Vol. III, pp. 1079 to 1084. 25 Docke t - Vol. III, pp. 1088 to 1093. 26 Minutes of the hea ring he ld on, a nd O rd er dated, July 25, 2018, Docket - Vol. III, pp. 1094 to 1096, and 1098 to 1099, respectively. 27 Docke t - Vol. III, pp. 1111 to 1126. 28 Docke t - Vol. III, pp. 1254 to 1269.

DECISION CTA Case No. 9736 Trial ensued. Petitioner presented: (1) Atty. Joan D. Adaci- Cattiling, 29 petitioner's Senior Legal Counsel and Corporate Secretary; (2) Ms. Hesther Bahiwag, 30 petitioner's Financial Accounting Superintendent; and (3) Ms. Elaine E. De Guzman,31 the Court-commissioned Independent Certified Public Accountant (ICPA), as its witnesses.32 On November 25, 2019, the ICPA Report was submitted to the Court. On December 27, 2019, petitioner filed its Formal Offer of Evidence,33to which respondent filed his Comment/ Opposition (On Petitioner's Formal Offer of Evidence) on January 16, 2020.3-t By Resolution dated June 10, 2020, 35 the Court admitted petitioner's offered exhibits, except for the following: 1. Exhibits " P-26/' " P-26-A," "P-28," and " P-55," for failure to present their originals for comparison; 2. Exhibits "P-79-A," " P-394," "P-3015-A," "P-3080-A," "P-3321," "P-3321-A/' "P-3321-B/' " P-3322," "P-3322-A/' "P-3322-B/' "P- 3322-C," "P-3322-D," "P-3322-E," "P-3349," "P-3349-A," "P- 3350/' "P-3350-A," "P-3350-B," "P-3351," "P-3351-A," "P-3351- B," " P-3352," " P-3552-B/' "P-3352-C/' "P-3352-D," "P-3353," "P- 3353-A," " P-3354," "P-3354-A," "P-3354-B," "P-3355," "P-3355- A/' "P-3354-B," "P-3355," "P-3355-A," "P-3355-B," "P-3355-C," "P-3356," "P-3356-A," "P-3356-B," "P-3356-C," "P-3556-D," "P- 3356-E," " P-7557" to "P-7558," "P-8617," "P-15853," " P-19365" to " P-19367," "P-19657" to "P-19659," "P-22360," " P-27240" to " P-27241," " P-27308" to " P-27311," " P-29871 " to " P-29881," " P- 36322" to "P-36324," "P-36804" to " P-36805," "P-38035" to "P- 38038," "P-48107" to "P-48109," "P-51601" to " P-51786," "P- 51791" to "P-52235," "P-52238" to "P-52774," "P-52776" to "P- 52781," "P-52783" to "P-52893," "P-52895" to " P-53349," and "P- 29 Exhibit "65," Docket - Vol. I, pp. 274 to 297; Minutes of the hearing held on, and Order dated, October 1, 2019, Docket - Vol. III, pp. 1233 to 1236. 30 Exhibit " P-66," Docket - Vol. III, pp. 85'1 to 857; Mi nutes of the hearing held on, a nd Order dated, October 29,2019, Docket- Vol. 2, p p. 1270 to 1273. 31 Exh ibit " P-68," Docket - Vol. III, p p. 1282 to 1288; Minu tes of the hearing held on, and Order da ted, December 3, 2019, Docket - Vol. IV, pp. 1289 to 1293. 32 Onth oJCo111111ission dated October 15, 2019, Docket- Vol. III, pp. 1241 and 1245; Minu tes of the hearing he ld on, a nd Order dated , October 15, 2019, Docket- Vol. III, pp. 1242 to 1244, a nd 1246 to 1247, res pectively. 33 Docket- Vol. IV, pp. 1298 to 1344. 34 Docket- Vol. IV, pp. 1969 to 1972. 35 Docket- Vol. V, pp.1979 to 1984.

DECISION CTA Case No. 9736 53590" to "P-53592," for not being found in the records of the case; and 3. Exhibits "P-2569" to "P-2576," and "P-23695," for not being found in the records of the case and for failure to identify. On July 13, 2020, petitioner filed a Motion for Reconsideration (of the Resolution dated June 10, 2020)36 praying for the admission of Exhibits " P-26/' "P-26-A/' "P-28/' "P-55/' "P-3321/' " P-3321-A/' "P- 3321-B/' " P-3322/' " P-3322-A/' "P-3322-B/' "P-3322-C/' " P-3322-D/' "P-3322-E/' "P-3349/' "P-3349-A/' "P-3350/' "P-3350-A/' "P-3350-B/' "P-3351/' "P-3351-A/' "P-3351-B/' "P-3352," "P-3552-A/' "P-3552-B/' "P-3352-C/' "P-3352-D/' "P-3353/' "P-3353-A/' "P-3354/' "P-3354-A," "P-3354-B/' "P-3355/' "P-3355-A/' " P-3355-B/' "P-3355-C/' "P-3356," "P-3356-A/' "P-3356-B," "P-3356-C/' "P-3556-D/' "P-3356-E/' "P- 29871" to "P-29881/' and "P-53590" to " P-53592". Respondent failed to file his comment thereto. 37 Through Resolution dated January 12, 2021?8 the Court granted petitioner's Motion for Reconsideration, and admitted said Exhibits. In the Hearing held on March 22, 2022, respondent presented his sole wih1.ess RO Rona B. Marcellano.39 On March 31, 2022, respondent filed his Formal Offer of Evidence,4oto which petitioner filed its Comment [on Respondent's Formal Offer of Evidence dated March 31, 2022] on April 8, 2022.41 Throu gh Resolution dated June 6, 2022,42 the Court admitted all of respondent's exhibits. In the Resolution dated August 10, 2022, this case was submitted for decision,43 considering respondent's Memorandum44 36 Docket- Vol. V, pp. 1994 to 2005. 37 Records Verification dated November 9, 2020 issued by this Cou rt's Judicia l Records Div ision, Docket- Vol. V, p. 2012. 38 Docket - Vol. V, pp. 2015 to 2021 . 39 Exhibit " R-12," Docket - Vol. 2, pp. 993 to 1007; Minutes of the hearing held on, and Order dated, March 22, 2022, Docket- Vol. V, pp. 2032 to 2036. 40 Docket- Vol. V, pp. 2041 to 2046. 41 Docket- Vol. V, pp. 2048 to 2051. 42 Docket- Vol. V, pp. 2054 to 2055. n Minute Resolution dated August 10, 2022, Docket- Vol. V, unpaged. -l4 Docket- Vol. V, pp. 2056 to 2081.

DECISION CfA Case No. 9736 and Memorandum for Petitioner,-1s respectively filed on July 11, 2022 and July 29, 2022. ISSUES The issues to be resolved are as follows: -16 1. Whether the Honorable Court has jurisdiction over the instant petition. 2. Whether petitioner is liable for deficiency excise tax in the amount of P262,678,770.49, plus interest and surcharges thereon, forTY 2013. 3. Whether Revenue Memorandum Circular (RMC) No. 17-201347 which among others, revoked BIR Ruling No 10-2007, d ated May 4, 2007 is valid. ARGUMENTS Petitioner argues that the Court has jurisdiction over its appeal of respondent's FDDA under Section 7(a)(1) of Republic Act No. (RA) 1125, as amended by RA 9282, and Section 3(a)(1), Rule 4 of the Revised Rules of the Court of Tax Appeals (RRCTA) . Petitioner also cites Banco De Oro, et al., v. Republic of the Philippines, et al. (B D0),4B in arguing that the Court of Tax Appeals has jurisdiction to pass upon the constitutionality or validity of RMC No. 17-2013, w hich it raised as a defense in disputing the deficiency ET assessment issued against it. Petitioner maintains that it is exempt from excise tax fr01n the date of approval of its Mining Project Feasibility Study up to the end of the recovery period pursuant to the Financial or Technical Assistance Agreement (FTAA), Section 81 of RA N o. 7942, otherwise known as the "Philippine Mining Act of 1995," and Section 236 of Department of Environment and Natural Resources Administrative ~5 Docket- Vol. V, pp. 2083 to 2130. 46 Stipulation of Issues, JSFl, Docket- Vol. III, pp. 1112 to 111 3. 47 SUBJECT: C la rify ing the Taxes Due from Financial o r Technical Ass ista nce Ag reement (FTAA) Conh�acts during "Recovery Periods" ~8 Resolu tion, G.R. No.l98756, August16, 2016.

DECISION CfA Case No. 9736 Order (DAO) No. 95-23. It adds that BIR Ruling No. 10-200749 confirmed its excise tax exemption during the recovery period. Petitioner further contends that respondent failed to observe due process of law in issuing RMC No. 17-2013, as there was no prior notice and hearing required by the Book VII, Chapter 2, Section 9 of the Administrative Code of 1987 so and notice and publication required by RMC No. 20-86.51 For these reasons, petitioner concludes that it is exempt from payment of excise tax forTY 2013. Respondent counters that the Court has no jurisdiction to rule on the validity or constitutionality of RMC No. 17-2013. Assuming that the Court has jurisdiction over the case, respondent points out that the deficiency excise tax in the amount of !>221,136,013.14, issued against petitioner must be upheld. 49 Exhibit P-25. 50 SECTION 9. Public PcHliripcltion.- ( I ) If no t o tlwm�i<;t' required b\ law, Clll clgency shc1ll. as tcH as prcKlicabil', publi'>h o r t irculatc nolin'-. o f pro po'>l'd rull':-. ,1nd alford interested parl i(''> tlw o pporlunil .\' tn '> ubmil tlw ir \ ll'\\.., p i l U I lll tlw cldo pllllll of clll \ rule. 51 SUBJECf Notice, Publicatio n and Effectivity of Interna l Reve nue Tax Rules and Regu la tion 1. This circu lar s hall app ly o nly to (a) Revenue Regu lations; (b) Revenue A udit Memorandum Orders; and (c) Revenue Memora ndum Circulars and Revenue Memorandum O rders bearing o n internal revenue tax rules and regulatio ns. 2. Except when the law otherwise exp ressly prov ides, the aforesaid inte rnal revenue tax issuances shall no t begin to be operative unti l a fte r due no tice the reof may be fairl y presumed. Due notice of the said issuances may be fairly presu med o nl y after the following procedures have been taken : 2.1 The Records D ivision of the Natio nal Office s ha ll furnis h, thru registered ma il, all of the following bus iness and profess ional organizations w ith the correspo nding revenue tax issuance: a. Philippine Ins titute of Certified Public Accounta nts; b. Integrated Bar of the P hil ippines; c. Philippine C hambe r of Commerce a nd Industry; d . A m erican Chamber of Commerce; e . Federatio n of Filip ino-C hinese Cha mbe r of Co mme rce a nd Indus lTy; and f. The Japa nese Chamber of Commerce & Industry of the Philippines, Inc.

DECISION CTA Case No. 9736 RULING The Petition for Review is denied . The Court has jurisdiction over the Petition for Review. Section 7(a)(1), in relation to Section 11 of Republic Act (RA) No. 1125,52 as amended by RA No. 928253 provides among others, that respondent's decisions in cases involvin g disputed assessments are appealable to the Court. In addition, an aggrieved party must appeal respondent's decision to the Court, within thirty (30) days from receipt thereof. These provisions respectively read: Sec. 7. Jurisdiction.- The CTA shall exercise: a. Exclusive appellate jurisdiction to review by appeaC 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 or other laws administered by the Bureau of Internal Revenue; SEC. 11. Who May Appeal; Mode of Appeal; Effect of Appeal. - Any party adversely affected by a decision, ruling or inaction of the Commissioner of Internal Revenue, ... 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 fi xed by law for action as referred to in Section 7(a)(2) herein. 54 52 An Act Creating the Court of Tax Appeals. 53 An Act Expanding the Jurisdiction of the Cou rt of Tax Ap pea ls (CTA), Elevating its Rank to the Level of A Collegiate Court w ith Special Jurisdiction and Enlarging its Membership, Amending fo r the Purpose Certain Sections of Re public Act No. 1125, As Amended, Otherwise Known as The Law Creating The Co urt of Tax Appea ls, and For Other Purposes. Boldfacing supplied.

DECISION CfA Case No. 9736 On November 20, 2017, petitioner received respondent's FDDA dated October 16, 2017, ordering the payment of deficiency taxes amounting to P262,678,770.49, inclusive of interest and administrative penalties. 55 Counting thirty (30) days from November 20, 2017, p etitioner h ad until December 20, 2017, to seek judicial redress. Therefore, the timely filing of the Petition for Review on December 19, 201756 clothed the Court w ith jurisdiction over this case. The Court has jurisdiction over challenges to the validity of tax Issuances. This case is not confined to p etitioner's appeal against respondent's decision. Petitioner also challenges the constitutionality or validity of RMC No. 17-2013 issued on February 15, 2013. RMC No. 17-2013 revoked BIR Ru ling No. 10-2007 earlier issued to petitioner confirming its exemption from payment of excise tax on minerals from the date of approval of its Mining Project Feasibility Study (MPFS) up to the end of the recovery period in accordance with the FTAA and RA No. 7942, otherwise known as the "Philippine Mining Act of 1995." As a backgrounder: On June 20, 1994, Arimco Mining Corporation (AMC) entered into a FTAA57 with the Republic of the Philippines, for the large-scale exploration, subsequent development, and commercial utilization of mineral deposits, over a conh�act area spanning the Provinces of Nueva Vizcaya and Qu irino. AMC, later changed its corporate name to Climax-Arimco Mining Corporation (CAMC). Thereafter, CAMC transferred all its rights under the FTAA to petitioner, Australasian Philippines Mining, Inc. (Petitioner's former corporate name).5SCAMC's assignment of all its rights and obligations to petitioner was approved by the Department of Environment and Natural Resources (DENR).59 The FTAA allows peti tioner to explore mining claims and areas in Nueva Vizcaya province on the condition that the commercial rewards for exh�acting minerals and mineral products shall be shared with the Philippine government in accordance with the sharing scheme provided in the FTAA. 60 After 55 Suprn at note 10. 56 Suprn at note 1. 57 Exhibi t "P-2," Docket- Vol. IV, pp. 1356 to 1409. 58 Exhibit "P-4," Docket- Vol. IV, pp. 1420 to 1427. 59 Exhibit " P-5," Docket- Vol. IV, pp. 1428 to 1430. 60 Item 4.3, Petition for Review, Docket- Volume 1, p. 3.

DECISION CTA Case No. 9736 conducting mineral ex ploration activities, petitioner identified a portion of the Exploration Contract Area as suitable for the Didipio Gold-Copper Project (Didipio Project) and filed a Partial Declaration of Mining Feasibility (PDMF). On, October 11, 2005, the DENR approved the PDMF, which is petitioner's permit to operate the Didipio Project.61 On the basis of the FTAA, Section 81 of RA 7942, and Section 236 of DAO 95-23, implementing RA 7942, petitioner requested a ruling to confirm that it is exempted from the payment of excise tax on minerals during the recovery period. On May 4, 2007, respondent issued BIR Ruling No. 10- 200762 confirming that petitioner is exempt from the payment of excise tax. Said tax shall not be collected from APMI upon the date of approval of the Mining Project Feasibility Study up to the end of the recovery period which shall be reckoned from the d ate of commercial operation but not exceeding five (5) years or until the date of actual recovery of its pre-operating, exploration and development expenses, whichever comes earlier. On February 15, 2013, respondent issued Revenue Memorandum Circular (RMC) No. 17-2013 which, among others, revoked BIR Ruling No. 10-2007.63 Relevantly, in BDQ,6-1 the Supreme Court En Bnnc categorically declared that the CTA has undoubted jurisdiction to pass upon the constitutionality or validity of a tax law or regulation w hen raised by the taxpayer as a defense in disputing or contesting an assessment or claiming a refund. It is only in the lawful exercise of its power to pass upon all matters brought before it, as sanction ed by Section 7 of Republic Act No. 1125, as amended. Consistent w ith BOO, the Court has jurisdiction to rule on the issu e of constitutionality or validity of RMC No. 17-2013, upon which the deficiency excise tax assessment is based. 61 Exhibit " P-8," Docket - Vo l. IV, pp. 1442 to 1443. 62 Exhibit " P-25," Docket - Vol. IV, pp. 1483 to 1488. 63 Suprn at N ote 10. 6-1 G.R. N o. 198756, Augu st 16, 2016.

DECISION CTA Case No. 9736 Petitioner IS liable for the deficiency ET assessment covering TY 2013. The BIR assessed petitioner for ET covering TY 2013 because of its sale of dore gold and metal concentrates are subject to 2% ET, pursuant to Section 151(A)(2) of the 1997 National Internal Revenue Code (N IRC), as amended, and RMC No. 17-2013.65 According to petitioner, it is exempt from paying ET on minerals because it was being assessed during the recovery period. The Court upholds the BIR assessment. Sections 81, 84, and 97 of RA No. 7942,66 otherw ise known as the "Philippine Mining Act of 1995," provide: SEC. 81. Governmen t Shnre in Other Mineml Agreements. - ... The Government share in financial or technical assistance agreement shall consist of, among other things, the conh�actor1S corporate income tax, excise tax, special allowance, withholding tax due from the contractor1s foreign stockholders arising from dividend or interest payments to the said foreign stockholder in case of a foreign national and all such other taxes, duties and fees as provided for under existing laws. The collection of Government share in financial or technical assistance agreement shall commence after the financial or te chnical assistance agreement contractor h as fully recovered its pre-operating expenses, exploration, and development expenditures, inclusive. SEC. 84. Excise Tnx on Mineml Products. - The contractor shall be liable to pay the excise tax on mineral products as provided for under Section 151 of the National Internal Revenue Code: Provided, however, That w ith respect to a mineral production sharing agreement, the excise tax on mineral products shall be the government share under said agr eem.ent. 65 Ex hibit "P-29," Docket - Vol. IV, pp . 1518 to 1520. 66 An Ac t Instituting a New System of Minera l Resources Exploration, Development, Utilization And Conservation.

DECISION CTA Case No. 9736 SEC. 97. No n-pnyment of Tnxes nnd Fees. - Failure to pay taxes and fees due the Government for two (2) consecutive years shall cause the cancellation of the exploration permit, mineral agreement, financial or technical assistance agreement and other agreements and the re-opening of the area subject thereof to new applicants. Indeed, the mineral products of a concerned contractor,67 under an FTAA68 with the government, is subject to ET under Section 151 of the NIRC,69 as amended. By way of exception, Section 81 of RA No. 7942 provides that the government's share, including said ET, may not be collected by the latter from an FTAA contractor, if it has not fully recovered its pre-operating expenses, exploration, and development expenditures. The recovery period, or the period in 67 Under Section 3(g) of Rep ublic Act (RA) No. 7942, a "[c]ontrnctor" means "a qualified persoll actiug aloue or iu cousortiu111 wilo is a parhJ to a 111iuernl agree111wt or to a fi nallcial or tee/mica/ assistance agree111eut." 68 Under Section 3(r) of RA No. 7942, a "[f]inancial or tecllllical assistance" means "a contract illvolving fiuaucial or tecllllical assistauce for large-scale explorntiou, rfevelop111e11 t, a11d 11 tilization of 111inernl resources." 69 SEC. 151. Mineral Products. -(A) Rntes of Tnx.- There s ha ll be levied, assessed and collected on minerals, mine ra l products a nd quarry reso urces, excise tax as fo llows: (1) On coal and coke, a tax of Ten Pesos (PlO.OO) per me h�ic ton; (2) On all nonme tallic minerals and qua rry reso urces, a tax of two pe rcent (2 %) based on the actua l marke t value of the g ross output the reof at the time of re moval, in the case of those locally extracted or produced; or the value used by the Burea u of Cus toms in d ete rmi.ning tariff a nd customs duties, ne t of excise tax a nd va lu e-added tax, in the case of importation. No twithstanding the prov ision of paragraph (4) of Subsectio n (A) of Section 151, locally extracte d natura l gas and liq ue fied na tural gas sha ll be ta xed at the rate of two percent (2 %); (3) On a ll meta llic minera ls, a tax based on the actual ma rke t value of the gross output thereof at the time of remova l, in the case of those loca lly ex h�acted o r produced; or the value used by the Bu reau of C ustoms in d e te rmining tariff and cus toms duties, net of excise tax and value-added tax, in the case of importatio n, in accordance with the following schedule: (a) Copper and other meta llic minerals; (i) On the first three (3) years upon the e ffectiv ity of Re public Act No. 7729, one pe rcent (1 %) ; (ii) O n the fo urth and the fifth years, one and a ha lf pe rcent (1 112% ); a nd (iii) On the sixth yea r a nd thereafter, two percent (2%); (b) Gold and chromite, two percent (2%) . (4) On indigenous pe troleum, a tax of three pe rcent (3%) of the fair internationa l market price thereof, on the firs t ta xable sa le, ba rter, exchange o r such similar transaction, such tax to be paid by the buye r or purchase r befo re re mova l fro m the place of production. The phrase "first taxable sale, barter, exclu111ge or si111ilar transaction" mea ns the h�a nsfer of indige nous pe troleu m in its ori gina l s tate to a first taxable transfe ree. T he fair inte rnational marke t price s ha ll be d ete rm ined in consultation w ith a n app ropria te government agency. For the purpose of this Subsection, "indigenous petroleu111 " s ha ll include locally-extracted mineral oil, hydrocarbon gas, bitumen, crude asphalt, mine ra l gas a nd all othe r similar or natura lly associa ted substances w ith the exception of coal, pea t, bituminous s ha le a nd/o r sh'atified mine ral d eposits....

DECISIO. CTA Case No. 9736 which petitioner n1ay recover its pre-operating and property expenses is provided in Section XI, paragraph 11.2 of the FTAA dated June 20, 1994/ oas follows: 11.2 Recovery of Preoperating Expenses, Proper ty Expenses and Tax Paid During the Recovery Period. The CONTRACTOR shall have a period of up to five (5) Contract Years, counted from the Date of Commencement of Commercial Production within which to recover its: (a) Preoperating Expenses; and (b) Property expenses incurred during the period in which Preoperating Expenses are recovered, after which period only shall the right of the GOVERNMENT to share in the Net Reve nu e, as hereinafter defined, accrue. 71 Meanwhile, Section 11272 of RA No. 7942 recognizes valid and existing FTAAs. Yet, the same provision contained a proviso that said FTAAs shall comply with the applicable provisions of said law and its implementing rules and regulations. In the penultimate paragraph of its Partial Declaration of Mining Feasibility dated March 15, 2005, petitioner declared " [t]hat [it] is committed to complying with all the requirements of the FTAA and the rules and regulations of the Philippine Mining Act and other related laws;"73 Among these rules and regulations is Section 7 of DAO No. 12-2007, which defines the term recovery period, as follows:7.J Section 7. Recovery of Pre-Operating Expenses 70 Exhibit " P-2," Docke t- Vol. IV, pp. 1356 to 1409. 71 Boldfacing supplied. 72 Section 112 Non-Impairment of Existing MininyQuarrying Rig hts All va lid and ex isting mining lease contrac ts, permits/licenses, leases pend ing renewal, minera l production-s ha ring agreeme nts granted under Executive O rder No. 279, a t the d a te of effecti vity of th is Act, shall re ma in va lid, sha ll not be im pa ired , a nd shall be recognized by the Gove rnme nt: Provided , That the prov isions of C ha pte r XIV on government share in minera l production-sharing ag ree ment and of Chap te r XVI on incentives of this Act shall immediate ly govern and apply to a mining lessee or conh�actor unless the mining lessee or contractor ind icates his intention to the secreta ry, in w riting, not to avail of said prov is ions: Provided , further, That no renewal of mining lease contracts shall be made afte r the expira tion of its term: Prov ided, fina lly, T ha t such leases, production-sharing ag reements, fina ncia l or technical assis tance agreements sha ll comply with the applicable provisions of this Ac t and its im p lemen ti ng rules and reg ul a t i o n s. 73 Exhibit " P-7," Docket- Vo l. IV, pp. 1440 to 1443. 74 Subject: Revised G uidelines Esta blishing the Fiscal Reg ime of Financial or Technica l Assista nce Agreements (FTAA).

DECISION CfA Case No. 9736 a. Recovery Period. Considering the high risk, high cost and long term nature of an FTAA Mining Operation, the Contractor shall be given an opportunity to recover the expenses incurred during its pre-operating period. After this period, the Government shall receive its rightful share from the national patrimony. Recovery Period, as used in this Order, shall be a maximum of five (5) years or at a date when the aggregate of the Net Cash Flows from the Mining Operations is equal to the aggregate of its Pre-Operating Expenses, reckoned from the Date of Commencement of Commercial Production, whichever comes first. For this purpose, the above Net Cash Flows and Pre-Operating Expenses refer to the actual Net Cash Flows from Mining Operations and the actual Pre-Operating Expenses incurred by the Contractor, respectively, converted into its United States dollar equivalent at the time the expenditure was incurred . Section 7 of DAO No. 12-2007, provides that the recovery period, or the period within which the government m ay not collect its share, including the ET, is a maximum period of five (5) years, counted from the date of commencement of commercial production (first circumstance), or the date when the aggregate of the Net Cash Flows from the Mining Operations is equal to the aggregate of its Pre- Operating Expenses (second circumstance), whichever comes first. In this regard, DAO No. 96-40 defined the term "commercial production," as follows: Section 5. Definition of Terms. - As used in and for purposes of these regulations, the following terms shall mean: i. "Commercial Production" refers to the production of sufficient quantity of minerals of sustained economic viability of mining operations reckoned from the date of commercial operation as declared by the Contractor or as stated in the feasibility study, whichever comes first _75 75 Boldfacing supplied .

DECISION CTA Case No. 9736 On March 27, 2013, petitioner advised the Secretary of DENR that 110n February 2, 2013, the Didipio Project was able to mill 301,903 tonnes and achieve the 15 % production capacity. 1176 Also, " the Date of Commencement of Commercial Production in accordance with Section 2.14 of the FTAA is April1, 2013, which is the first day of the second calendar quarter." Thus, per petitioner's declaration, it allegedly commenced commercial production only on April1, 2013. On the other hand, petitioner submitted a Partial Declaration of Mining Feasibility on March 15, 2005, stating that it found 11Sufficient ore reserves and diluted resource of 23.7 million tonnes of 1.8g/ t Au and 0.64 % Cu . .. and such ore reserves have been delineated to sustain the mining operation of the corporation for some 14 years/ and that " mining operation ... will process gold and copper at 2 million tonnes per a1u1um ...."77 Through Order d ated October 11, 2005, Mines and Geosciences Bureau (MGB) approved petitioner's Partial Declaration of Mining Feasibility.78 Petitioner's Partial Declaration of Mining Feasibility was approved by the MGB on October 11, 2005, which is way earlier than its declaration that its alleged d ate of commencen1ent of commercial production on April1, 2013. Following Section 5(i) of DAO No. 96-40, the date of commencement of petitioner's commercial production is on October 11, 2005. Counting five (5) years from October 11, 2005, petitioner's recovery period ended on October 11, 2010. Thus, the deficiency ET assessment issued against it for TY 2013 is in order. Assuming, the second circun1stance, i.e., date when the aggregate of petitioner's net cash flows from the 1nining operations is equal to the aggregate of its pre-operating expenses, occurred, prior to the happening of the first circumstance, the same result would en sue. Section 7(b) of DAO No. 12-2007 commands that all recoverable pre-operating expenses must be approved by the Secretary of the DENR, upon recmnmendation of the Director of the MGB. Additionally, these expenses must be subjected to verification by the governm ent or its representative or auditor: 76 Exhibit "P-27," Docket- Vol. IV, pp. 1515 to 1516. i7 Exhibit "P-7," Docket- Vol. IV, pp . 1440 to 1441. 78 Exhibit "P-8," Docket - Vol. IV, pp. 1442 to 1443.

DECISION crA Case No. 9736 a. Recoverable Pre-Operating Expenses. All Pre-Operating Expenses allowed for recovery under this Order shall be approved by the Secretary upon recommendation of the Director. It shall be limited to actual expenses and capital expenditures relating to the following: All Pre-O perating Expenses reported for recovery shall be subject to verification by Government or its designated representative or auditor. All expenses to be incurred in the verification of Pre-Operating Expenses shall be chargeable against the Contractor. To shore up its stance, petitioner simply relied on the ICPA Elaine E. De Guzman's examination of its su pporting docu1nents, pertaining to its "Pre-Operating Expenses" and " Net Cash Flows," along with her findings, condensed below: A. The Company has incurred US$310,519,081 as valid pre-operating expenses as of March 31, 2013. B. As of December 31, 2013, the Company is still under the recovery period as neither fi ve (5) yea rs have elapsed from the commencement of commercial operations on April 1, 2013 nor has the Company' s actual net cash flows from mining opera tions exceeded the valid pre-operating expenses it incurred . Yet, there is dearth of proof that the recoverable pre-operating expenses was duly approved by the Secretary of the DENR, as recommended by the Director of the MGB; n or, is it show n that these expenses w ere validated by the government or its designated representative or auditor. Sans such approval and validation, we cannot compare said unapproved recoverable pre-operating expenses with petitioner's net cash flows. Therefore, the date w hen the second circumstance occu rred may not be d etermined with certainty. Further, petitioner invokes BIR Rulin g No. 10-2007, 79 confirming its exemption from the paymen t of ET during the recovery period, stating as follows: 79 Exhibit "P-25," Docket - Vol. IV, pp. 1483 to 1488.

DECISION CTA Case No. 9736 "WHEREFORE, in view of the foregoing, this Office confirms your opinion that APMJBO is exempt from the paym ent of excise tax. Excise tax shall not be collected from AP MI upon the date of approval of the Mining Project Feasibility Study up to the end of the recovery period . The recovery period shall be reckoned from the date of commercial operation and shall be for a maximum of five (5) years or until the date of actual recovery of its pre- operating, exploration and development expenses, whichever comes earlier, as provided under Section 81 of the P hilippine Mining Act, its implementing rules and regulations particularly DAO 96-40; and the FTAA between the Philippine Government and APMI. It is understood that after the expiration of the said recovery period or un til the da te of aforesaid actual recovery, whichever com es earlier, APMI shall become subject to excise tax.81 Again, the date of commencement of commercial operation started on October 11, 2005, or the d ate the MGB approved petitioner's partial feasibility study. Counting five (5) years therefrmn, the recovery period ended on October 11, 2010. As such, there is no legal impediment for the BIR assess petitioner ET covering TY 2013. Finally, the Court rejects petitioner's challen ge on the constitutionality of RMC No. 17-2013. In La�wyers against Monopoly and Poverty (LAMP), represented by its Chairman and counsel, Ceferino Padua vs. The Secretary of Budget and Managemen t,82 the Supreme Court En Bane spelled out the conditions sine qua non for a court to exercise its power of judicial review in the following fashion: Like almost all powers conferred by the Constitu tion, the power of judicial review is subjec t to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of jud ic ia l p ower; (2) the person ch a llenging the act must have the s tanding to q uestion the valid ity of the subject act or issuance; otherw ise sta ted, he must have a personal and substan tial interest in the case such that he has sustained, or will sustain, d irect injury as a result of its enforcement; (3) the question of cons titu tionali ty must be raised a t the earliest opportu nity; and (4) the issue of constitutionality must be the very lis motn of the case. Of the four (4) rudiments just mentioned, only fourth is to be considered here. Specifically, lis mota means that the court will not pass upon a question of unconstitutionality, although properly so Petitioner's fo rmer name. Refer to Exhibit "P-6', Docket - Vol. 4, pp. 1431 to 1439. 81 Boldfacing supplied. 82 G.R. No . 164987, Ap ril 24, 2012.

DECISION CTA Case No. 9736 presented, if the case can be disposed of on some other ground, such as the application of the statute or the general law. The petitioner must be able to show that the case cannot be legally resolved unless the constitutional question raised is detennined.s3If there is some other ground upon which the court may rest its judgment that course will be adopted and the question of constitutionality should be avoided.84 Adverting to our earlier discussion, the five (5) year recovery period granted by law commenced on October 11, 2005 and ended on October 11, 2010. The merits of this case can be fully addressed without the need to touch on the issue of constitutionality of RMC No. 13-2007 raised by petitioner. For not being the lis mota in this case, the challenge on the constitutionality thereof must be rejected. WHEREFORE, the Petition for Review dated December 18, 2017, filed by Oceanagold (Philippines), Inc. is DENIED for lack of m e rit. Accordingly, petitioner is ORDERED TO PAY respondent the amount of TWO HUNDRED SIXTY-TWO MILLION THREE HUNDRED EIGHTY-SIX THOUSAND FOUR HUNDRED SEVENTY-EIGHT PESOS AND SEVENTY-EIGHT CENTAVOS (P262,386A78.78), inclusive of surcharge and deficiency and delinquency interests imposed under Sections 248(A) and 249(B) of the N IRC of 1997, as amended, computed as follows: Basic Excise Tax Due p 125,177,799.00 Add: 25% Surcharge 31,294,449. 75 20 % Deficiency Interest from January 1, 2014 to 97,398,616.21 November 20, 2017 P253,870,864.96 {P125,177,799.00 x 20 % x 1,420/365 dnvs] Total Amount Due as of November 20,2017 2,812,213.57 Add: 20 % Deficiency Interest from November 21, 2017 to December 31, 2017 5'703,400.25 [?125,177,799.00 x 20% x 41/ 365 dnys] P262,386,478.78 20% Delinquency Interest from November 21, 2017 to December 31, 2017 {P253,870,864.96 x 20% x 41/3 65 dnvs] Total Amount Due as of December 31,2017 Congressmall En rique T. Garcia of the 21111 District of Bataan v. The Exew tive Secretary, G.R. No. 157584, April 2, 2009, italics in the orig inal. 84 Kalipwwn ng Oa111ayang Mahihirnp, Inc., et a!. v. Robrerlo, G.R. No. 200903, July 22, 2014; Ge11ernl v . Uro, G.R. No. 191560, Ma rch 29, 2011; and Libau v. Gordon, G.R. No. 175353, January 18, 2011.

DECISION CTA Case No. 9736 In addition, petitioner should be ORDERED TO PAY respondent delinquency interest at the rate of twelve percent (12 %) per annum on the f>253,870,864.96 total amount due as of November 20, 2017, or an amount of P83A64.39 Bs per day computed from January 1, 2018 until full paym ent thereof pursuant to Section 249(C) of the NIRC of 1997, as am ended by Republic Act (RA) No. 10963, also known as Tax Reform for Acceleration and Inclusion (TRAIN), as implemented by Revenue Regulations No. 21-2018. Lastly, pursuant to Section 13 of RA No. 9282, this Court authorizes respondent to seize and distraint any goods, chattels, or effects, and the personal property, including stocks and other securities, debts, credits, bank accounts, and interests in and rights to personal property, and/ or to levy the real property, of petitioner, in sufficient quantity to satisfy the taxes herein ordered to be paid, and the increments thereto incident to delinquency. SO ORDERED. ~~r.~-F~ MARIAN pfy F. REYES-FAJARDO Associate Justice We Concur: Presiding Justice ~~'/. ~ CATHERINE T. MANAHAN Associate Justice ss P253,870,864.96 x 12% / 365 days.

DECISION CTA Case No. 9736 CERTIFICATION Pursuant to Section 13 of Article VIII 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's Division. Presiding Justice