LAW ON TAXATION
2014
G
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N
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U
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The UST GOLDEN NOTES is the annual student-‐edited bar review material of the University of Santo Tomas, Faculty of Civil Law, thoroughly reviewed by notable and distinct professors in the field. Communications regarding the NOTES should be addressed to the Academics Committee of the Team: Bar-‐Ops. ADDRESS: TEL. NO.: Academics Committee Faculty of Civil Law University of Santo Tomas España, Manila 1008
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2014 Edition
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ACADEMIC
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COVERAGE
LAW ON TAXATION
2014 BAR EXAMINATIONS
I. General Principles of Taxation 1
A. Definition and concept of taxation 1
B. Nature of taxation 1
C. Characteristics of taxation 2
D. Power of taxation compared with other powers 3
1. Police power 3
2. Power of eminent domain 3
E. Purpose of taxation 3
1. Revenue-‐raising 3
2. Non-‐revenue/special or regulatory 3
F. Principles of sound tax system 4
1. Fiscal adequacy 4
2. Administrative feasibility 4
3. Theoretical justice 4
G. Theory and basis of taxation 4
1. Lifeblood theory 4
2. Necessity theory 5
3. Benefits-‐protection theory (Symbiotic relationship) 5
4. Jurisdiction over subject and objects
H. Doctrines in taxation 5
1. Prospectivity of tax laws 5
2. Imprescriptibility 5
3. Double taxation 6
a. Strict sense 6
b. Broad sense 6
c. Constitutionality of double taxation 6
d. Modes of eliminating double taxation 6
4. Escape from taxation 7
a. Shifting of tax burden 8
i. Ways of shifting the tax burden 8
ii. Taxes that can be shifted 8
iii. Meaning of impact and incidence of taxation 8
b. Tax avoidance 8
c. Tax evasion 8
5. Exemption from taxation 9
a. Meaning of exemption from taxation 9
b. Nature of tax exemption 9
c. Kinds of tax exemption 9
iii. Contractual
d. Rationale/grounds for exemption 9
e. Revocation of tax exemption 10
6. Compensation and set-‐off 10
7. Compromise 10
8. Tax amnesty 11
a. Definition 11
b. Distinguished from tax exemption 11
9. Construction and interpretation of: 11
a. Tax laws 11
i. General rule ii. Exception
b. Tax exemption and exclusion 12
i. General rule ii. Exception
c. Tax rules and regulations 12
i. General rule only
d. Penal provisions of tax laws 12
e. Non-‐retroactive application to taxpayers 12
i. Exceptions
I. Scope and Limitation of Taxation 12
1. Inherent Limitations 13
a. Public purpose 13
b. Inherently legislative 14
i. General rule 14
ii. Exceptions 14
a) Delegation to local governments 14
b) Delegation to the President 14
c) Delegation to administrative agencies 14
c. Territorial 15
i. Situs of Taxation 15
a) Meaning 15
b) Situs of Income Tax 15
(1) From sources within the Philippines (2) From sources without the Philippines
(3) Income partly within and partly without the Philippines
c) Situs of Property Taxes 15
(1) Taxes on Real Property (2) Taxes on Personal Property
d) Situs of Excise Tax 16
(1) Excise Tax (2) Donor’s Tax
e) Situs of Business Tax 16
(1) Sale of Real Property (2) Sale of Personal Property (3) Value-‐Added Tax (VAT)
d. International Comity 17
e. Exemption of government entities, agencies and instrumentalities 17
2. Constitutional Limitations 18
a. Provisions directly affecting taxation 18
i. Prohibition against imprisonment for non-‐payment of poll tax 18
ii. Uniformity and equality of taxation 18
iii. Grant by Congress of authority to the president to impose tariff rates 19 iv. Prohibition against taxation of religious, charitable entities, and educational entities 19 v. Prohibition against taxation of non-‐stock, non-‐profit institutions 21 vi. Majority vote of Congress for grant of tax exemption 21
viii. President’s veto power on appropriation, revenue, tariff bills 22 ix. Non-‐impairment of jurisdiction of the Supreme Court 22 x. Grant of power to the local government units to create its own sources of revenue 22
xi. Flexible tariff clause 22
xii. Exemption from real property taxes 22
xiii. No appropriation or use of public money for religious purposes 22
b. Provisions indirectly affecting taxation 23
i. Due process 23
ii. Equal protection 24
iii. Religious freedom 25
iv. Non-‐impairment of obligations of contracts 25
J. Stages of taxation 26
1. Levy 26
2. Assessment and collection 26
3. Payment 27
4. Refund 27
K. Definition, nature, and characteristics of taxes 27
L. Requisites of a valid tax 27
M. Tax as distinguished from other forms of exactions 27
1. Tariff 27
2. Toll 28
3. License fee 28
4. Special assessment 28
5. Debt 28
N. Kinds of taxes 29
1. As to object 29
a. Personal, capitation, or poll tax b. Property tax
c. Privilege tax
2. As to burden or incidence 29
a. Direct b. Indirect
3. As to tax rates 29
a. Specific b. Ad valorem c. Mixed
4. As to purposes 29
a. General or fiscal
b. Special, regulatory, or sumptuary
5. As to scope or authority to impose 29
a. National – internal revenue taxes b. Local – real property tax, municipal tax
6. As to graduation 29
a. Progressive b. Regressive c. Proportionate
II. National Internal Revenue Code (NIRC) of 1997, as amended 30
A. Income Taxation 30
1. Income Tax systems 30
a. Global tax system 30
b. Schedular tax system 30
c. Semi-‐schedular or semi-‐global tax system 30
2. Features of the Philippine income tax law 30
a. Direct tax 30
b. Progressive 30
c. Comprehensive 30
d. Semi-‐schedular or semi-‐global tax system 30
3. Criteria in imposing Philippine income tax 30
a. Citizenship principle 30
b. Residence principle 30
c. Source principle 30
4. Types of Philippine income tax 30
5. Taxable period 30
a. Calendar period 31
b. Fiscal period 31
c. Short period 31
6. Kinds of taxpayers 31
a. Individual taxpayers 31 i. Citizens 31 a) Resident citizens b) Non-‐resident citizens ii. Aliens 32 a) Resident aliens 32 b) Non-‐resident aliens 32
(1) Engaged in trade or business (2) Not engaged in trade or business
iii. Special class of individual employees 32
a) Minimum wage earner
b. Corporations 32
i. Domestic corporations 32
ii. Foreign corporations 32
a) Resident foreign corporations b) Non-‐resident foreign corporations
iii. Joint venture and consortium 32
c. Partnerships 33
d. General professional partnerships 33
e. Estates and trusts 34
f. Co-‐ownerships 35 7. Income taxation 36 a. Definition 36 b. Nature 36 c. General principles 36 8. Income 36 a. Definition b. Nature
c. When income is taxable 37
i. Existence of income 37
ii. Realization of income 37
iii. Recognition of income 38
iv. Methods of accounting 38
a) Cash method vis-‐à-‐vis accrual method 38 b) Installment payment vis-‐à-‐vis deferred payment vis-‐à-‐vis percentage 38
Completion (in long term contracts
d. Tests in determining whether income is earned for tax purposes 39
i. Realization test 39
ii. Claim of right doctrine or doctrine of ownership, comman, or control 39 iii. Economic benefit test, doctrine of proprietary interest 39
iv. Severance test 39
v. All events test 39
9. Gross Income 39
a. Definition 39
b. Concept of income from whatever source derived 39
c. Gross income vis-‐à-‐vis net income vis-‐à-‐vis taxable income 40
d. Classification of income as to source 42
i. Gross income and taxable income from sources within the Philippines ii. Gross income and taxable income from sources without the Philippines iii. Income partly within or partly without the Philippines
e. Sources of income subject to tax 42
f. Compensation income 42
g. Fringe benefits 42
h. Special treatment of fringe benefits 42
a) Definition
b) Taxable and non-‐taxable fringe benefits 43
i. Professional income 43
ii. Income from business 43
iii. Income from dealings in property 43
iv. Types of properties 43
(1) Ordinary assets 44
(2) Capital assets 44
a) Types of gains from dealings in property 45 (1) Ordinary income vis-‐à-‐vis capital gain 45
(2) Actual gain vis-‐à-‐vis presumed gain 45
(3) Long term capital gain vis-‐à-‐vis short-‐term capital gain 45 (4) Net capital gain, net capital loss 45 (5) Computation of the amount of gain or loss 46
(6) Income tax treatment of capital loss 47
(a) Capital loss limitation rule (applicable to both
corporations and individuals 47
(b) Net loss carry-‐over rule (applicable only to
Individuals 47
(7) Dealings in real property situated in the Philippines 48 (8) Dealings in shares of stock of Philippine corporations 49 (a) Shares traded in the stock exchange 49 (b) Shares not listed and traded in the stock exchange 49
(9) Sale of principal residence 50
v. Passive income 51 a) Interest income 52 b) Dividend income 53 (1) Cash dividend 53 (2) Stock dividend 53 (3) Property dividend 54 (4) Liquidating dividend 54 c) Royalty income 54 d) Rental income 55
(1) Lease of personal property 55
(a) Leasehold improvements by lessee 56 (b) VAT added to rental/paid by the lessee 56
(c) Advance rental/long term lease 56
vi. Annuities, proceeds from life insurance or other types of insurance 57
vii. Prizes and awards 58
viii. Pensions, retirement benefit, or separation pay 58
ix. Income from any source whatever 58
a) Forgiveness of indebtedness 58
b) Recovery of accounts previously written-‐off – when taxable 59
/ when not taxable 59
c) Receipt of tax refunds or credit 59
d) Income from any source whatever 59
e) Source rules in determining income from within and without 60
(1) Interests 60
(2) Dividends 60
(3) Services 60
(4) Rentals 60
(5) Royalties 60
(6) Sale of real property 60
(7) Sale of personal property 60
(8) Shares of stock of domestic corporation 60
f) Situs of income taxation 60
g) Exclusions from gross income 60
(1) Rationale for the exclusions 60
(2) Taxpayers who may avail of the exclusions 60 (3) Exclusions distinguished from deductions and tax credit 61
(4) Under the Constitution 61
(a) Income derived by the government or its political 61 subdivisions from the exercise of any essential governmental function
(5) Under the Tax Code 61
(a) Proceeds of life insurance policies 61
(b) Return of premium paid 62
(c) Amounts received under life insurance, endowment or annuity contracts 63 (d) Value of property acquired by gift, bequest, devise or descent 63 (e) Amount received through accident or health insurance 64
(f) Income exempt under tax treaty 65
(g) Retirement benefits, pensions, gratuities, etc. 65 (h) Winnings, prizes, and awards, including those in sports competition 68
(6) Under special laws 68
(a) Personal Equity and Retirement Account 69
h) Deductions from gross income 69
(1) General rules 70
(a) Deductions must be paid or incurred in connection 71 with the taxpayer’s trade, business or profession
(b) Deductions must be supported by adequate receipts or invoices (except standard deduction) (c) Additional requirement relating to withholding
(2) Return of capital (cost of sales or services) 71 (a) Sale of inventory of goods by manufacturers and dealers of properties
(b) Sale of stock in trade by a real estate dealer and dealer in securities (c) Sale of services
(3) Itemized deductions 72
(a) Expenses
1. Requisites for deductibility 72
a. Nature: ordinary and necessary b. Paid and incurred during taxable year
2. Salaries, wages and other forms of compensation for 73 personal services actually rendered, including the
grossed-‐up monetary value of the fringe benefit subjected to fringe benefit tax which tax should have been paid
3. Travelling / transportation expenses 74
4. Cost of materials 74
7. Expenses under lease agreements 75
8. Expenses for professionals 75
9. Entertainment / representation expenses 75
10. Political campaign expenses 76
11. Training expenses 76
(b) Interest 77
1. Requisites for deductibility 77
2. Non-‐deductible interest expense 77
3. Interest subject to special rules 77
a. Interest paid in advance 77
b. Interest periodically amortized 78
c. Interest expense incurred to acquire property for use in 78 trade / business / profession
d. Reduction of interest expense / interest arbitrage 78
(c) Taxes 78
(d) Requisites for deductibility 78
1. Non-‐deductible taxes 78
2. Treatments of surcharges / interest / fines for delinquency 78
3. Treatment of special assessment 78
4. Tax credit vis-‐à-‐vis deduction 78
(e) Losses 79
1. Requisites for deductibility 79
2. Other types of losses
a. Capital losses 80
b. Securities becoming worthless 80
c. Losses on wash sales of stocks or securities 80
d. Wagering losses 80
e. Net Operating Loss Carry-‐Over (NOLCO) 80
(f) Bad debts 80
1. Requisites for deductibility 81
2. Effect of recovery of bad debts 81
(g) Depreciation 81
1. Requisites for deductibility 82
2. Methods of computing depreciation allowance 82 a. Straight-‐line method
b. Declining-‐balance method c. Sum-‐of-‐the-‐years method
(h) Charitable and other contributions 83
1. Requisites for deductibility 83
2. Amount that may be deducted 83
(i) Contributions to pension trusts 85
1. Requisites for deductibility
(4) Optional standard deduction 85
(a) Individuals, except non-‐resident aliens
(b) Corporations, except non-‐resident foreign corporations (c) Partnerships
(5) Personal and additional exemption (R.A. No. 9504, Minimum Wage Earner Law) 87
(a) Basic personal exemptions 87
(b) Additional exemptions for taxpayer with dependents 87 (c) Status-‐at-‐the-‐end-‐of-‐the-‐year rule 88 (d) Exemptions claimed by non-‐resident aliens 89
(6) Items not deductible 90
(a) General rules 90
(b) Personal, living or family expenses 90 (c) Amount paid for new buildings or for permanent improvements 90
(capital expenditures)
(d) Amount expended in restoring property (major repairs) 90 (e) Premiums paid on life insurance policy covering life or any 90
other officer or employee financially interested
(f) Interest expense, bad debts, and losses from sales of property
between related parties 90
(h) Non-‐deductible interest 90
(i) Non–deductible taxes 90
(j) Non-‐deductible losses 90
(k) Losses from wash sales of stock or securities 90
(7) Exempt corporations 90
(a) Propriety educational institutions and hospitals 90 (b) Government-‐owned or controlled corporations 90
(c) Others 90
10. Taxation of resident citizens, non-‐resident citizens, and resident aliens 90
a. General rule that resident citizens are taxable on income from all sources within and withoutthe Philippines
i. Non-‐resident citizens
b. Taxation on compensation income 91
i. Inclusions 91
a) Monetary compensation 91
(1) Regular salary / wage
(2) Separation pay / retirement benefit not otherwise exempt (3) Bonuses, 13th month pay, and other benefits not exempt (4) Director’s fees
b) Non-‐monetary compensation 91
(1) Fringe benefit not subject to tax
ii. Exclusions 92
a) Fringe benefit subject to tax b) De minimis benefits
c) 13th month pay and other benefits, and payments specifically exclusded from taxable compensation income
iii. Deductions 100
a) Personal exemptions and additional exemptions 100
b) Health and hospitalization insurance 100
c) Taxation of compensation income of a minimum wage earner 100
(1) Definition of statutory minimum wage 100
(2) Definition of minimum wage earner 100
(3) Income also subject to tax exemption: holiday pay, overtime 100 pay, night-‐shift differential, and hazard pay 100
c. Taxation of business income/income from practice of profession 101
d. Taxation of passive income 101
i. Passive income subject to final tax a) Interest income
1. Treatment of income from long-‐term deposits b) Royalties
c) Dividends from domestic corporations d) Prizes and other winnings
ii. Passive income not subject to final tax
e. Taxation of capital gains 101
i. Income from sale of shares of stock of a Philippine corporation a) Shares traded and listed in the stock exchange
b) Shares not listed and traded in the stock exchange ii. Income from the sale of real property situated in the Philippines
iii. Income from the sale, exchange, or other disposition of other capital assets
11. Taxation of non-‐resident aliens engaged in trade or business 101
a. General rules 101
b. Cash and/or property dividends 101
c. Capital gains 101
Exclude: non-‐resident aliens not engaged in trade or business
12. Individual taxpayers exempt from income tax 101
a. Senior citizens 101
b. Minimum wage earners 101
c. Exemptions granted under international agreements
i. Regular tax 104
ii. Minimum Corporate Income Tax (MCIT) 105
a) Imposition of MCIT 106
b) Carry forward of excess minimum tax 106 c) Relief from the MCIT under certain conditions 107
d) Corporations exempt from the MCIT 107
e) Applicability of the MCIT where a corporation is governed both 107 under the regular tax system and a special income tax system
b. Allowable deductions 107
i. Itemized deductions 107
ii. Optional standard deduction 108
c. Taxation of passive income 109
i. Passive income subject to tax 109
a) Interest from deposits and yield, or any other monetary benefit from
deposit substitutes and from trust funds and similar arrangements and royalties 109 b) Capital gains from the sale of shares of stock not traded in the stockexchange 111 c) Income derived under the expanded foreign currency deposit system 111
d) Inter-‐corporate dividends 111
e) Capital gains realized from the sale, exchange, or disposition of lands and/or buildings 112
ii. Passive income not subject to tax 112
d. Taxation of capital gains 112
i. Income from sale of shares of stock 112
ii. Income from the sale of real property situated in the Philippines 112 iii. Income from the sale, exchange, or other disposition of other capital assets 112
e. Tax on proprietary educational institutions and hospitals 112
f. Tax on government-‐owned or controlled corporations, agencies or instrumentalities 114
14. Taxation of resident foreign corporations 114
a. General rule 114
b. With respect to their income from sources within the Philippines 114
c. Minimum Corporate Income Tax 114
d. Tax on certain income 115
i. Interest from deposits and yield, or any other monetary benefit from deposit 115 substitutes, trust funds and similar arrangements and royalties 115 ii. Income derived under the expanded foreign currency deposit system 115 iii. Capital gains from sale of shares of stock not traded in the stock exchange 115
iv. Inter-‐corporate dividends 115
Exclude
i. International carrier ii. Offshore banking units iii. Branch profits remittances
iv. Regional or area headquarters and regional operating headquarters of multinational companies
15. Taxation of non-‐resident foreign corporations 115
a. General rule 116
b. Tax on certain income 116
i. Interest on foreign loans 116
ii. Inter-‐corporate dividends 116
iii. Capital gains from sale of shares of stock not traded in the stock exchange 116
Exclude
i. Non-‐resident cinematographic film-‐owner, lessor or distributor
ii. Non-‐resident owner or lessor of vessels chartered by Philippine nationals iii. Non-‐resident owner or lessor of aircraft machineries and other equipment
16. Improperly accumulated earnings of corporations 118
17. Exemption from tax on corporations 118
18. Taxation of partnerships 119
19. Taxation of general professional partnerships 122
a. Concept 122
b. Kinds 122
i. Withholding of final tax on certain incomes ii. Withholding of creditable tax at source
c. Withholding of VAT 123
d. Filing of return and payment of taxes withheld 124
i. Return and payment in case of government employees ii. Statements and returns
e. Final withholding tax at source 125
f. Creditable withholding tax 127
i. Expanded withholding tax ii. Withholding tax on compensation
g. Timing of withholding 130
B. Estate tax 130
1. Basic principles 132
2. Definition 133
3. Nature 133
4. Purpose or object 134
5. Time and transfer of properties 134
6. Classification of decedent 134
7. Gross estate vis-‐à-‐vis net estate 134
8. Determination of gross estate and net estate 135
9. Composition of gross estate 135
10. Items to be included in gross estate 136
11. Deductions from estate 141
12. Exclusions from estate 146
13. Tax credit for estate taxes paid in a foreign country 146
14. Exemption of certain acquisitions and transmissions 146
15. Filing of notice of death 147
16. Estate tax return 147
C. Donor’s tax 149
1. Basic principles 151
2. Definition 151
3. Nature 152
4. Purpose or object 152
5. Requisites of valid donation 152
6. Transfers which may be constituted as donation 153
a. Sale/exchange/transfer of property for insufficient consideration
b. Condonation/remission of debt
7. Transfer for less than adequate and full consideration
8. Classification of donor 153
9. Determination of gross gift 153
10. Composition of gross gift 154