87-National Development Company v CIR GR No L-53961, June 30, 1987

FACTS:

The National Development Company (NDC) entered into contracts in Tokyo with several Japanese shipbuilding
companies for the construction of 12 ocean-going vessels. Initial payments were made in cash and through irrevocable
letters of credit. When the vessels were completed and delivered to the NDC in Tokyo, the latter remitted to the
shipbuilders the amount of US$ 4,066,580.70 as interest on the balance of the purchase price. No tax was withheld. The
Commissioner then held the NDC liable on such tax in the total sum of P5,115,234.74. Negotiations followed but failed.
NDC went to CTA. BIR was sustained by CTA. BIR was sustained by CTA. Hence, this petition for certiorari.

ISSUE:

Is NDC liable for the tax?

RULING:

Yes.

Although NDC is not the one taxed since it was the Japanese shipbuilders who were liable on the interest remitted to
them under Section 37 of the Tax Code, still, the imposition is valid.

The imposition of the deficiency taxes on NDC is a penalty for its failure to withhold the same from the Japanese
shipbuilders. Such liability is imposed by Section 53c of the Tax Code. NDC was remiss in the discharge of its obligation as
the withholding agent of the government and so should be liable for the omission.

88-COMMISSIONER OF INTERNAL REVENUE VS. SMART COMMUNICATION, INC.-

Tax Refund
FACTS:

Smart entered into an Agreement with Prism, a nonresident foreign corporation domiciled in Malaysia, whereby Prism
will provide programming and consultancy services to Smart. Thinking that the payments to Prism were royalties, Smart
withheld 25% under the RP-Malaysia Tax Treaty. Smart then filed a refund with the BIR alleging that the payments were
not subject to Philippine withholding taxes given that they constituted business profits paid to an entity without a
permanent establishment in the Philippines.

ISSUE:

Does Smart have the right to file the claim for refund?

HELD:

YES. The Court reiterated the ruling in Procter & Gamble stating that a person “liable for tax” has sufficient legal interest
to bring a suit for refund of taxes he believes were illegally collected from him. Since the withholding agent is an agent
of the beneficial owner of the payments (i.e., nonresident), the authority as agent is held to include the filing of a claim
for refund. The Silkair case was held inapplicable as it involved excise taxes and not withholding taxes.

Smart was granted a refund given that only a portion of its payments represented royalties since it is only that portion
over which Prism maintained intellectual property rights and the rest involved full transfer of proprietary rights to Smart
and were thus treated as business profits of Prism.

89-revenue memorandum circular 44-2005

REVENUE MEMORANDUM CIRCULAR NO. 44-2005 issued on September 8, 2005 provides guidelines for the taxation of
payments for computer software.
The Circular covers the tax treatment of payments involving the sale of computer
hardware bundled with software, where the software is bundled in the Philippines. On the other hand, computer
hardware bundled with software, where the software is bundled abroad will be dealt with in another revenue issuance.
Payments made to a local copyright owner for a full or partial transfer of a copyright will be subject to Income Tax as
follows:
a. Transfer by a resident individual owner of copyright - A resident individual
owner of a copyright is subject to the graduated income tax rates (5% -
32%).The amount paid in consideration of the copyright or portions
transferred shall form part of the copyright owner’s gross income, from which
his taxable income shall be computed.
b. Transfer by a domestic corporation owner - The amount paid in consideration
of the copyright or portions thereof transferred shall form part of the copyright
owner’s gross income, from which his taxable income, subject to 32% Income
Tax, shall be computed.
Payments made to a foreign copyright owner for a full or partial transfer of a copyright shall be subject to Income Tax as
follows:
a. Transfer by a non-resident alien individual - A non-resident alien individual
engaged in trade or business in the Philippines shall be taxed in the same
manner as a resident individual owner of a copyright.
b. Transfer by a foreign corporation - The amount paid in consideration of the
copyright or portions thereof transferred by a resident foreign corporation
engaged in trade or business within the Philippines shall form part of the
copyright owner’s gross income from which his taxable income, which is
subject to 32% Income Tax, shall be computed.
The amount paid in consideration of the copyright or portions transferred by a non-resident foreign corporation shall be
subject to a final tax of 32%, based on the gross income. However, if the foreign owner of the copyright is a resident of a
country, which has an existing tax treaty with the Philippines, royalties paid to such owner are subject to the reduced tax
rates on royalties under the relevant tax treaty, provided the conditions prescribed therein are complied with by the
owner.
The payments made by a local subsidiary/reseller/distributor/retailer to a domestic
corporation owner of a copyright or a reseller/distributor licensee of a copyright shall be
subject to a final income tax of 20%, based on the gross amount of royalties, to be
withheld by the local subsidiary/reseller/distributor/ retailer making the payments.
Payments made by the local subsidiaries/resellers/distributors/retailers to a nonresident foreign licensor/owner of the
software are royalties subject to 32% final income tax, based on the gross amount thereof, the full amount of which
shall be withheld and collected by the subsidiary/reseller/distributor/retailer making the payments.
However, if the foreign licensor/owner is a resident of a country which has an existing tax treaty with the Philippines,
royalties paid to such licensor/owner are subject to the reduced tax rates on royalties under the relevant tax treaty,
provided that the conditions prescribed therein are complied with by the licensor/owner.

Payments made by the end-user to the local subsidiaries, resellers, distributors of resellers for the purchase of
copyrighted articles are business income which is subject to 32% Income Tax, based on the net taxable income of a
domestic corporation.
When making payments to the local subsidiaries, resellers, distributors of
resellers, the end-user shall withhold 2% Income Tax of the gross amount of the
payments creditable against the taxable income of the local subsidiaries, reseller or distributors, provided that the end-
user is any of the following persons required to withhold such tax:
(a) A juridical person, whether or not engaged in trade or business;
(b) An individual, with respect to payments made in connection
with his trade or business; or
(c) A government office including a government-owned or
controlled corporation, a provincial, city, or municipal
government.
A local end-user may acquire license to use software directly from the foreign licensor/owner of the software. The
payments made by the end-user are royalties subject to 32% Income Tax, based on the gross amount thereof, imposed
on royalties derived by a non-resident foreign corporation, which amount shall be withheld and collected by the end-
user making the payments.
However, if the foreign licensor/owner is a resident of a country which has an existing tax treaty with the Philippines,
royalties paid thereto are subject to the reduced tax rates on royalties under the relevant tax treaty, provided the
condition prescribed therein are complied with by the licensor/owner.
The following payments for software transactions shall be subject to the 10% Value-Added Tax (VAT):
(a) Royalty payments for the use of a copyright over a software;
(b) Payments made to resellers/distributors/retailers who are engaged in the trade
or business of distributing or selling software; and
(c) Payments for services rendered in the Philippines in connection with software
purchased.
The payor in control of the payment of VAT in the software transactions shall be
responsible for the withholding of VAT on such fees on behalf of the non-resident payee,
by filing a separate VAT return for and on behalf of such payee using BIR Form No.
1600 (Monthly Remittance Return of Value-Added Tax and Other Percentage Taxes
Withheld).
The duly filed BIR Form No. 1600 and proof of payment shall serve as sufficient basis for the claim of input tax to be
applied against the output tax that may be due from the payor.
In addition, the payor is required to issue the Certificate of Creditable Tax Withheld at Source (BIR Form No. 2307) in
quadruplicate upon the request of the nonresident payee, the first three (3) copies to be given to the payee and the
fourth copy to be retained as payor’s file copy.