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MEMORANDUM FOR:
The Commissioner
This refers to the protest filed by Messrs. A.M. Sison, Jr. and Associates, on
behalf of NICOLAS KIWI PHILIPPINES, INC. against the deficiency tax
assessments covering the fiscal years ended June 30, 1988 and June 30, 1987
itemized as follows: LibLex
Records show that Letter of Authority No. 0020319 NA dated October 29,
1988 was issued to the examiners of the Intelligence and Investigation Office for
the examination of all the internal revenue tax liabilities of herein taxpayer
covering the fiscal years ended June 30, 1987 and 1988.
On the basis of said L/A, the said examiners submitted on September 10,
1990 their report of investigation wherein they recommended the issuance of the
following assessments:
Fiscal Year ended June 30, 1988
Deficiency Income Tax
Deficiency basic Income Tax P1,003,634.50
25% surcharge 250,908.63
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Sub-total P1,254,543.13
20% Interest (10-17-88 to 9-15-91) 480,836.38
Compromise penalty 25,000.00
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Total amount due & collectible P1,760,409.51
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Deficiency Withholding Tax
Deficiency basic withholding tax P498,888.87
25% Surcharge 124,722.28
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Sub-total P623,611.09
20% Interest (various dates to 9-15-90) 210,914.07
Compromise penalty 28,000.00
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Total amount due & collectible P862,525.16
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Deficiency Sales Tax
Deficiency basic Sales Tax P2,886,280.27
25% surcharge 716,570.07
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Sub-total 3,602,850.34
20% interest (fr. 1-20-88 to 9-15-90) 1,902,346.29
Compromise penalty 28,000.00
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Total amount due & collectible P5,510,196.63
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Deficiency Value Added Tax
Deficiency basic value added tax P557,514.71
25% surcharge 139,378.68
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Sub-total 696,893.39
20% interest (fr. 5-20-88 to 9-15-90) 300,523.33
Compromise penalty 20,000.00
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Total amount due & collectible P1,017,416.71
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Fiscal Year Ended June 30, 1987
Deficiency income tax
Deficiency basic income tax P2,186.20
25% surcharge 526.55
— amount shown per alpha list does not tally with the gross
amount appearing in the general ledger showing a
discrepancy of P2,297,004.01;
Verification of the taxpayer's records and its two (2) sales tax
return filed for the quarter ended December 31, 1987 however showed
a zero balance or no excess sales tax credit. Hence, the disallowance.
(pls. see memo report fr. FY 6-30-88 on pp. 361-365; also pp. 1000-1002 — re:
memo report fr. FY 6-30-87).
The aforesaid assessments were all timely protested by the taxpayer, thru
counsel, for being devoid of legal and factual basis.
DISCUSSION/EVALUATION :
This finding was however refuted by the taxpayer's counsel. As argued, the
questioned inventory losses were incurred from the normal business operation of
the taxpayer and not from write-off as alleged, hence there is no need of a
certification from the BIR District Office.
The issue to be resolved therefore is not whether the said expense was
supported by the required certification but whether said inventory losses were
incurred in the normal business operation of herein taxpayer.
As previously mentioned, this was disallowed based on the theory that this
amount was already absorbed or deducted against the examiner's findings for the
taxable year ended June 30, 1987.
Taxpayer, thru counsel, argued that the procedure used by the examiners in
comparing the amount of compensation payment per alpha list and the general
ledger is not entirely correct or accurate simply because the amount shown in the
general ledger included accruals of certain employees' benefits such as sick leave
and vacation leave pay, commissions and other benefits the withholding taxes of
which were paid on later dates. Hence, it is more of a question involving timing
difference. It is further argued that the amount in the general ledger also includes
general allocation of expenses by affiliate which herein taxpayer did not pay and
deduct for income tax purposes.
Again, in the conference hearing held on December 11, 1991, the above
issue was threshed out and the taxpayer, thru counsel, was able to refute the above
findings of the investigating examiners.
In the said hearing, the taxpayer was able to explain fully the alleged
discrepancy by testimonial evidence and supporting documents, notably a
reconciliatory schedule/worksheet showing in detail the commission income and
unused sick leave and vacation pay and other payments like 13th month pay etc.
that accrued in 1988 but were actually paid only in 1989. The taxpayer likewise
submitted supporting documents like numerous journal vouchers showing the cost
allocation of expenses by Regional Head Office, commissions & benefits earned
and accrued in 1988 by certain employees which were duly recorded in its 1988
ledger but were in fact actually paid to said employees in 1989. These
documentary evidences were eventually marked as evidence in its favor, to prove
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that the amounts listed in the reconciliatory statement were not fictitious but were
in fact supported by competent documentary evidence. (pls. see exhibits 5 to 5-12
on pp. 1161-1173; also Exhibits 8 to 8-6 on pp. 1139-1145).
The examiners assessed the taxpayer a deficiency sales tax for the first
fiscal semester (July to December 1987) of the taxable year with a basic tax of
P2,866,280.27 (at 10% for medicines and 20% for ordinary articles), or a total of
P5,510,196.63 inclusive of 25% surcharge, compromise penalty and interest (pls.
see "schedule B" on p. 349).
As for the fiscal year ended June 30, 1988, to simplify the issues involved,
the same are hereby itemized as follows:
Contractors tax and subsequent sales tax are percentage taxes paid on the
raw materials, part or accessory of the finished products sold by herein taxpayer.
They were incurred in contracting out services which are necessary in the
production of goods and for materials locally purchased which necessarily formed
part of the product manufactured and sold. The 4% contractor's tax and the 1.5%
subsequent sales tax are therefore creditable against the sales taxes due from
herein taxpayer pursuant to the aforementioned provision of the Tax Code.
The disallowance of the unused deferred sales tax credit is therefore without
any basis considering that the taxpayer was able to establish the existence of such
unused deferred sales tax credit. (pls. see list of materials inventory with unused
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Deferred Sales Tax Credit and the corresponding 8% transitional input tax credit
as of December 31, 1987 on pp. 411 to 425. The transitional 8% input tax of
P43,540.97 on physician's samples should likewise be allowed in consonance with
BIR VAT Ruling No. 104 (2) 000-00-129-89, wherein input taxes on raw
materials inputted on prizes or give aways to promote sales were held as
deductible from output taxes.
The sole issue involved in this assessment is whether or not the reversal of a
prior year's provision for employees retirement is deductible in 1987 for income
tax purposes.
At the start of the fiscal year 1987, the provision for employees' retirement
plan account had a balance of P1,069,180.00 (please refer to Attachment A —
Provision on Retirement plan schedule, p. 622). It was in 1987 that client's
retirement fund became funded. Inadvertently, the prior retirement pay provision
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as presented before was reversed, in fact resulting in overstatement of income for
that year, thus:
Dr. Provision for employees'
retirement plan . . . P1,069,180.00
Cr. Administrative expense P1,069,180.00
To correct the situation, said amount was included as one of the items of
deduction and presented the same as a reconciling item in the income tax return.
It is submitted that the position of the taxpayer on this matter is well taken
and must be considered.
1. The deficiency income tax for FY ended June 30, 1988 in the amount
of P1,760,409.51 covered by Assessment No. FAS-1-88-90-002059 be withdrawn
and cancelled for lack of legal and factual basis:
6. The deficiency expanded withholding tax for FY ended June 30, 1987
in the amount of P20,691.59 covered by Assessment Notice No.
FAS-1-87-90-002058 is hereby reiterated. aisadc
Respectfully submitted:
I CONCUR:
Recommendation-Approved:
(SGD.) LIWAYWAY
VINZONS-CHATO
Commissioner of Internal Revenue