Beruflich Dokumente
Kultur Dokumente
Issue:
W/N the subject media advertising expense for Tang was ordinary
and necessary expense fully deductible under the NIRC
Held:
No. Tax exemptions must be construed in stricissimi juris against the
taxpayer and liberally in favor of the taxing authority, and he who
in the law of taxation that the taxpayer must show that its claimed
deductions clearly come within the language of the law since
allowances, like exemptions, are matters of legislative grace.
Moreover, petitioner cannot now claim that the profit from the sale is
tax exempt. At the administrative level, the petitioner implicitly
admitted that the profit it derived from the sale of its Muntinlupa land,
a capital asset, was a taxable gain which was precisely the reason
why for tax purposes the petitioner deducted therefrom the questioned
bonus to its corporate officers as a supposed item of expense incurred
for the sale of the said land, apart from the P51, 723.72 commission
paid by the petitioner to the real estate agent who indeed effected the
sale. The BIR therefore had no occasion to pass upon the issue.
To allow a litigant to assume a different posture when he comes before
the court and challenge the position he had accepted at the
administrative level, would be to sanction a procedure whereby the
court which is supposed to review administrative determinations
would not review, but determine and decide for the first time, a
question not raised at the administrative forum. The requirement of
prior exhaustion of administrative remedies gives administrative
authorities the prior opportunity to decide controversies within its
competence, and in much the same way that, on the judicial level,
issues not raised in the lower court cannot be raised for the first time
on appeal. Up to the time the questioned decision of the respondent
Court was rendered, the petitioner had always implicitly admitted that
the disputed capital gain was taxable, although subject to the deduction
of the bonus paid to its corporate officers. It was only after the said
decision had been rendered and on a motion for reconsideration
thereof, that the issue of tax exemption was raised by the petitioner for
the first time. It was thus not one of the issues raised by petitioner in
his petition and supporting memorandum in the CTA.
or business. In addition, not only must the taxpayer meet the business
test, he must substantially prove by evidence or records the deductions
claimed under the law, otherwise, the same will be disallowed. The
mere allegation of the taxpayer that an item of expense is ordinary and
necessary does not justify its deduction.
The SC has never attempted to define with precision the terms
"ordinary and necessary." As a guiding principle, ordinarily, an
expense will be considered "necessary" where the expenditure is
appropriate and helpful in the development of the taxpayer's business.
It is "ordinary" when it connotes a payment which is normal in relation
to the business of the taxpayer and the surrounding circumstances. The
term "ordinary" does not require that the payments be habitual or
normal in the sense that the same taxpayer will have to make them
often; the payment may be unique or non-recurring to the particular
taxpayer affected.
There is thus no hard and fast rule on the matter. The right to a
deduction depends in each case on the particular facts and the relation
of the payment to the type of business in which the taxpayer is
engaged. The intention of the taxpayer often may be the controlling
fact in making the determination. Assuming that the expenditure is
ordinary and necessary in the operation of the taxpayer's business, the
answer to the question as to whether the expenditure is an allowable
deduction as a business expense must be determined from the nature of
the expenditure itself, which in turn depends on the extent and
permanency of the work accomplished by the expenditure.
It appears that on December 1957, Atlas increased its capital stock. It
claimed that its shares of stock were sold in the United States because
of the services rendered by the public relations firm. The information
about Atlas given out and played up in the mass communication media
resulted in full subscription of the additional shares issued by Atlas;
consequently, the stockholders relation service fee, the compensation
for services carrying on the selling campaign, was in effect spent for
the acquisition of additional capital, ergo, a capital expenditure, and
not an ordinary expense. It is not deductible from Atlas gross income
in 1958 because expenses relating to recapitalization and
reorganization of the corporation, the cost of obtaining stock
subscription, promotion expenses, and commission or fees paid for the
sale of stock reorganization are capital expenditures. That the expense
in question was incurred to create a favorable image of the corporation
in order to gain or maintain the publics and its stockholders'
patronage, does not make it deductible as business expense. As held in
a US case, efforts to establish reputation are akin to acquisition of
capital assets and, therefore, expenses related thereto are not business
expense but capital expenditures.
Note: The burden of proof that the expenses incurred are ordinary and
necessary is on the taxpayer and does not rest upon the Government.
To avail of the claimed deduction, it is incumbent upon the taxpayer to
adduce substantial evidence to establish a reasonably proximate
relation petition between the expenses to the ordinary conduct of the
business of the taxpayer. A logical link or nexus between the expense
and the taxpayer's business must be established by the taxpayer.
ZAMORA v CIR
FACTS:
Mariano Zamora, owner of the Bay View Hotel and Farmacia Zamora,
filed his income tax returns. The CIR found that he failed to file his
return of the capital gains derived from the sale of certain real
properties and claimed deductions which were not allowable. The
collector required him to pay deficiency income tax. On appeal by
Zamora, the CTA reduced the amount of deficiency income tax.
HELD:
Section 30, of the Tax Code, provides that in computing net income,
and there shall be allowed as deductions all the ordinary and necessary
expenses paid or incurred during the taxable year, in carrying on any
trade or business. Since promotion expenses constitute one of the
deductions in conducting a business, same must satisfy these
requirements. Claim for the deduction of promotion expenses or
entertainment expenses must also be substantiated or supported by
record showing in detail the amount and nature of the expenses
incurred.
Considering, as heretofore stated, that the application of Mrs. Zamora
for dollar allocation shows that she went abroad on a combined
medical and business trip, not all of her expenses came under the
category of ordinary and necessary expenses; part thereof constituted
her personal expenses. There having been no means by which to
conceived and planned the project" cannot change the picture. There
could be no question that as Chairman of the board and practically an
absolutely controlling stockholder of petitioner, Hoskins wielded
tremendous power and influence in the formulation and making of the
company's policies and decisions. Even just as board chairman, going
by petitioner's own enumeration of the powers of the office, Hoskins,
could exercise great power and influence within the corporation, such
as directing the policy of the corporation, delegating powers to the
president and advising the corporation in determining executive
salaries, bonus plans and pensions, dividend policies, etc.
It is a general rule that 'Bonuses to employees made in good faith and
as additional compensation for the services actually rendered by the
employees are deductible, provided such payments, when added to the
stipulated salaries, do not exceed a reasonable compensation for the
services rendered. The conditions precedent to the deduction of
bonuses to employees are: (1) the payment of the bonuses is in fact
compensation; (2) it must be for personal services actually rendered;
and (3) the bonuses, when added to the salaries, are reasonable when
measured by the amount and quality of the services performed with
relation to the business of the particular taxpayer.
There is no fixed test for determining the reasonableness of a given
bonus as compensation. This depends upon many factors, one of them
being the amount and quality of the services performed with relation to
the business.' Other tests suggested are: payment must be 'made in
good faith'; 'the character of the taxpayer's business, the volume and
amount of its net earnings, its locality, the type and extent of the
services rendered, the salary policy of the corporation'; 'the size of the
particular business'; 'the employees' qualifications and contributions to
the business venture'; and 'general economic conditions. However, 'in
determining whether the particular salary or compensation payment is
reasonable, the situation must be considered as whole. Ordinarily, no
single factor is decisive. . . . it is important to keep in mind that it
seldom happens that the application of one test can give satisfactory
answer, and that ordinarily it is the interplay of several factors,
properly weighted for the particular case, which must furnish the final
answer."
Petitioner's case fails to pass the test. On the right of the employer as
against respondent Commissioner to fix the compensation of its
officers and employees, we there held further that while the employer's
right may be conceded, the question of the allowance or disallowance
thereof as deductible expenses for income tax purposes is subject to
determination by CIR. As far as petitioner's contention that as
employer it has the right to fix the compensation of its officers and
employees and that it was in the exercise of such right that it deemed
proper to pay the bonuses in question, all that We need say is this: that
right may be conceded, but for income tax purposes the employer
cannot legally claim such bonuses as deductible expenses unless they
are shown to be reasonable. To hold otherwise would open the gate of
rampant tax evasion.
Lastly, we must not lose sight of the fact that the question of allowing
or disallowing as deductible expenses the amounts paid to corporate
officers by way of bonus is determined by respondent exclusively for
income tax purposes. Concededly, he has no authority to fix the
amounts to be paid to corporate officers by way of basic salary, bonus
or additional remuneration a matter that lies more or less
exclusively within the sound discretion of the corporation itself. But
this right of the corporation is, of course, not absolute. It cannot
exercise it for the purpose of evading payment of taxes legitimately
due to the State."
CALANOC v. CIR
Kind of tax involved: AMUSEMENT TAX:
FACTS:
This case is a petition to review CTA decision which affirmed the
assessment of CIR of amusement tax and surcharge against a boxing
HELD:
AMUSEMENT TAX IS VALID. You cannot pay for services that are
required by law to be performed by government officers. Also, the
expenditures are excessive!
Evidence showed that while Calanoc did not pay for the stadium fee,
said amount was paid by the O-SO Beverages directly to the stadium
for advertisement privileges during the exhibition.
Since the stadium fee was paid by the concessionaire, Calanoc had no
right to include the stadium fee among the items of his expenses. Such
amount was unaccounted, and it went into the petitioners pocket.
Also, Calanoc cannot justify the other expenses, such as
police protection and gifts. SC HELD that most of the items of
expenditures are either EXORBITANT or were NOT SUPPORTED
by receipts.
Payment for police protection given by Calanoc to the police is
ILLEGAL since it is a consideration given by the petitioner to the
police for the performance by the latter of functions required of them
to be rendered by law. The expenditures were rather EXCESSIVE,
considering that the purpose of the law was for a charitable cause.
exports. When Petitioner filed its Income Tax Return, it deducted from
its gross income the following items:
1. salaries, directors' fees and bonuses of its non-resident
president and vice-president;
2. bonuses of its resident officers and employees; and
3. Interests on earned but unpaid salaries and bonuses of its
officers and employees.
The CIR disallowed the deductions and assessed Petitioner for
deficiency income taxes. Petitioner requested for re-examination of the
assessment. CIR modified the same by allowing as deductible all items
comprising directors' fees and salaries of the non-resident president
and vice-president, but disallowing the bonuses insofar as they exceed
the salaries of the recipients, as well as the interests on earned but
unpaid salaries and bonuses.
The CTA modified the assessment and ruled that while the bonuses
given to the non-resident officers are reasonable, bonuses given to the
resident officers and employees are quite excessive.
ISSUES:
W/N the CTA erred in allowing the deduction of the bonuses in excess
of the yearly salaries of the employees?
RULING: NO. The deductible amount of said bonuses cannot be only
equal to their respective yearly salaries considering the post-war
policy of the corporation in giving salaries at low levels because of the
unsettled conditions resulting from war and the imposition of
government controls on imports and exports and on the use of foreign
exchange which resulted in the diminution of the amount of business
and the consequent loss of profits on the part of the corporation. The
payment of bonuses in amounts a little more than the yearly salaries
received considering the prevailing circumstances is in our opinion
reasonable.
Under the law, in order that interest may be deductible, it must be paid
"on indebtedness." It is therefore imperative to show that there is
an existing indebtedness which may be subjected to the payment of
interest. Here the items involved are unclaimed salaries and bonus
participation which cannot constitute indebtedness within the meaning
of the law because while they constitute an obligation on the part of
the corporation, it is not the latter's fault if they remained unclaimed.
Whatever an employee may fail to collect cannot be considered an
indebtedness for it is the concern of the employee to collect it in due
time. The willingness of the corporation to pay interest thereon cannot
be considered a justification to warrant deduction.
HELD:
YES. Interest payments on loans incurred by a taxpayer (whether BOIregistered or not) are allowed by the NIRC as deductions against the
taxpayer's gross income. The basis is 1977 Tax Code Sec. 30 (b). Thus,
the general rule is that interest expenses are deductible against gross
income and this certainly includes interest paid under loans incurred in
connection with the carrying on of the business of the taxpayer. In the
instant case, the CIR does not dispute that the interest payments were
made by Picop on loans incurred in connection with the carrying on of
the registered operations of Picop, i.e., the financing of the purchase
of machinery and equipment actually used in the registered operations
of Picop. Neither does the CIR deny that such interest payments
were legally due and demandable under the terms of such loans, and in
fact paid by Picop during the tax year 1977.
497.50. After the filing of the gift tax returns on or about February 1,
1954, the petitioner Commissioner of Internal Revenue appraised the
real property donated for gift tax purposes at P1, 231,268.00, and
assessed the total sum of P117, 706.50 as donor's gift tax, interest and
compromises due thereon. Of the total sum of P117, 706.50 paid by
respondent on April 29, 1954, the sum of P55, 978.65 represents the
total interest on account of delinquency. This sum of P55, 978.65 was
claimed as deduction, among others, by respondent in her 1954 income
tax return. Petitioner, however, disallowed the claim and as a
consequence of such disallowance assessed respondent for 1954 the
total sum of P21, 410.38 as deficiency income tax due on the aforesaid
P55, 978.65, including interest up to March 31, 1957, surcharge and
compromise for the late payment.
Under the law, for interest to be deductible, it must be shown that there
be an indebtedness, that there should be interest upon it, and that what
is claimed as an interest deduction should have been paid or accrued
within the year. It is here conceded that the interest paid by respondent
was in consequence of the late payment of her donor's tax, and the
same was paid within the year it is sought to be declared.
ISSUE:
Whether or not such interest was paid upon an indebtedness within the
contemplation of section 30 (b) (1) of the Tax Code.
RULING:
Yes. According to the Supreme Court, although interest payment for
delinquent taxes is not deductible as tax under Section 30(c) of the Tax
Code and section 80 of the Income Tax Regulations, the taxpayer is
not precluded thereby from claiming said interest payment as
deduction under section 30(b) of the same Code.
SEC. 30 Deductions from gross income. In computing net income
there shall be allowed as deductions
(b) Interest:
(1) In general. The amount of interest paid within the taxable year
on indebtedness, except on indebtedness incurred or continued to
purchase or carry obligations the interest upon which is exempt from
taxation as income under this Title.
The term "indebtedness" as used in the Tax Code of the United States
containing similar provisions as in the above-quoted section has been
defined as an unconditional and legally enforceable obligation for the
payment of money.
To give to the quoted portion of section 80 of our Income Tax
Regulations the meaning that the petitioner gives it would run counter
to the provision of section 30(b) of the Tax Code and the construction
given to it by courts in the United States. Such effect would thus make
the regulation invalid for a "regulation which operates to create a rule
out of harmony with the statute, is a mere nullity." As already stated,
section 80 implements only section 30(c) of the Tax Code, or the
provision allowing deduction of taxes, while herein respondent seeks
to be allowed deduction under section 30(b), which provides for
deduction of interest on indebtedness.
and have derived all their income from Philippine sources for the
taxable years in question. In compliance with Phil tax law, they filed
their income tax return for 1955 and 1956. In 1956, they filed an
amended income tax return claiming a tax deduction for federal
income taxes which they paid to the United States in the year 1955. In
1959, they likewise claimed a similar tax deduction for the 1956
return. Comm of IR failed to answer the claim for refund, thus they
filed
a
petition
with
the
Tax
Court.
Issue:
whether a US citizen residing in the Philippines who derives income
wholly from sources within the Republic of the Philippines, may
deduct from his gross income the income taxes he has paid to the US
government for the taxable year on the strength of sec 30 (c-1) of the
Phil Internal Revenue Code?
Held:
CIR v. Lednicky,
Facts:
The respondents, V.E. Lednicky and Maria Valero Lednicky, are
husband and wife, both American citizens residing in the Philippines,
The wording of Sec 30 shows the code's intent that the right to deduct
income taxes paid to foreign government from the taxpayer's gross
income is given only as an ALTERNATIVE to his right to claim a tax
credit for such foreign income taxes under Sec 30 so that unless the
alien resident has a right to claim such tax credit if he so chooses, he is
precluded from deducting the foreign income taxes from his gross
income. The law provides that the deduction shall be allowed if the
taxpayer in his return does not signify his desire to have the benefits of
tax credits for taxes paid to foreign countries. Thus, the statutes
assumes that the taxpayer in question may also signify his desire to
claim
a
tax
credit
and
waive
the
deduction.
No double credit (i.e, for claiming twice the benefits of his payment of
foreign taxes, by deduction from gross income and by tax credit) exists
here. This danger cannot exist if the taxpayer cannot claim benefit
under either of these headings at his option, so that he must be entitled
to a tax credit (respondent here are NOT entitled to tax credit because
all their income is derived from Phil sources), or the option to deduct
from
gross
income
disappears
altogether.
No double taxation exists. Double taxation becomes obnoxious only
when the taxpayer is taxed twice for the benefit of the same
governmental entity. In the present case, although the taxpayer would
have to pay two taxes on the same income but the Philippine
government only receives the proceeds of one tax, there is no
obnoxious double taxation.
PICOP v. CA
were legally due and demandable under the terms of such loans, and in
fact paid by Picop during the tax year 1977.
Facts:
The contention of CIR does not spring of the 1977 Tax Code
but from Revenue Regulations 2 Sec. 79. However, the Court said that
the term interest here should be construed as the so-called
"theoretical interest," that is to say, interest "calculated" or
computed (and not incurred or paid) for the purpose of determining
the "opportunity cost" of investing funds in a given business. Such
"theoretical" or imputed interest does not arise from a legally
demandable interest-bearing obligation incurred by the taxpayer
who however wishes to find out, e.g., whether he would have been
better off by lending out his funds and earning interest rather than
investing such funds in his business. One thing that Section 79 quoted
above makes clear is that interest which does constitute a charge
arising under an interest-bearing obligation is an allowable deduction
from gross income.
On various years (1969, 1972 and 1977), Picop obtained loans from
foreign creditors in order to finance the purchase of machinery and
equipment needed for its operations. In its 1977 Income Tax Return,
Picop claimed interest payments made in 1977, amounting to P42,
840,131.00, on these loans as a deduction from its 1977 gross income.
The CIR disallowed this deduction upon the ground that, because the
loans had been incurred for the purchase of machinery and equipment,
the interest payments on those loans should have been capitalized
instead and claimed as a depreciation deduction taking into account the
adjusted basis of the machinery and equipment (original acquisition
cost plus interest charges) over the useful life of such assets.
Both the CTA and the Court of Appeals sustained the position of Picop
and held that the interest deduction claimed by Picop was proper and
allowable. In the instant Petition, the CIR insists on its original
position.
ISSUE: Whether Picop is entitled to deductions against income of
interest payments on loans for the purchase of machinery and
equipment.
HELD:
YES. Interest payments on loans incurred by a taxpayer (whether BOIregistered or not) are allowed by the NIRC as deductions against the
taxpayer's gross income. The basis is 1977 Tax Code Sec. 30 (b). Thus,
the general rule is that interest expenses are deductible against gross
income and this certainly includes interest paid under loans incurred in
connection with the carrying on of the business of the taxpayer. In the
instant case, the CIR does not dispute that the interest payments were
made by Picop on loans incurred in connection with the carrying on of
the registered operations of Picop, i.e., the financing of the purchase
of machinery and equipment actually used in the registered operations
of Picop. Neither does the CIR deny that such interest payments
words, the taxpayer is not entitled to both the deduction from gross
income and the adjusted (increased) basis for determining gain or loss
and the allowable depreciation charge. The U.S. Internal Revenue
Code does not prohibit the deduction of interest on a loan obtained for
purchasing machinery and equipment against gross income, unless the
taxpayer has also or previously capitalized the same interest
payments and thereby adjusted the cost basis of such assets.
Held:
Facts:
No. For a deduction for bad debts to be allowed, all requisites must be
satisfied, to wit: (a) there was a valid and existing debt; (b) the debt
was ascertained to be worthless; and (c) it was charged off within the
taxable year when it was determined to be worthless.
There was no valid and existing debt. The nature of agreement
between Philex Mining and Baguio Gold is that of a partnership or
joint venture. Under a contract of partnership, two or more persons
bind themselves to contribute money, property, or industry to a
common fund, with the intention of dividing the profits among
themselves.
Perusal of the agreement denominated as the "Power of
Attorney" indicates that the parties had intended to create a partnership
and establish a common fund for the purpose. They also had a joint
interest in the profits of the business as shown by a 50-50 sharing in
the income of the mine.
Viewed from this light, the advances can be characterized as
petitioners investment in a partnership with Baguio Gold for the
development and exploitation of the Sto. Nino mine. Since the
advanced amount partook of the nature of an investment, it could not
be deducted as a bad debt from petitioner's gross income.
PHILIPPINE REFINING CO v CA
FACTS:
Philippine Refining Corp (PRC) was assessed deficiency tax payments
for the year 1985 in the amount of around 1.8M. This figure was
computed based on the disallowance of the claim of bad debts by PRC.
PRC duly protested the assessment claiming that under the law, bad
debts and interest expense are allowable deductions.
When the BIR subsequently garnished some of PRCs properties, the
latter considered the protest as being denied and filed an appeal to the
CTA which set aside the disallowance of the interest expense and
modified the disallowance of the bad debts by allowing 3 accounts to
be claimed as deductions. However, 13 supposed bad debts were
disallowed as the CTA claimed that these were not substantiated and
did not satisfy the jurisprudential requirement of worthlessness of a
debt The CA denied the petition for review.
RULING:
YES. Both the CTA and CA relied on the case of Collector vs.
Goodrich International, which laid down the requisites for
worthlessness of a debt to wit:
In said case, we held that for debts to be considered as "worthless,"
and thereby qualify as "bad debts" making them deductible, the
taxpayer should show that (1) there is a valid and subsisting debt.
Facts:
Facts:
Issue:
Whether or not the depreciation shall be determined on the acquisition
cost rather than the reappraised value of the assets
Held:
Yes. The following tax law provision allows a deduction from gross
income for depreciation but limits the recovery to the capital invested
in the asset being depreciated:
(1)In general. A reasonable allowance for deterioration of property
arising out of its use or employment in the business or trade, or out of
its not being used: Provided, that when the allowance authorized under
this subsection shall equal the capital invested by the taxpayer . . . no
further allowance shall be made. . . .
The income tax law does not authorize the depreciation of an asset
beyond its acquisition cost. Hence, a deduction over and above such
cost cannot be claimed and allowed. The reason is that deductions
from gross income are privileges, not matters of right. They are not
created by implication but upon clear expression in the law [Gutierrez
v. Collector of Internal Revenue, L-19537, May 20, 1965].
FACTS:
BIR assessed deficiency taxes on Limpan Corp, a company that leases
real property, for under declaring its rental income for years 1956-57
by around P20K and P81K respectively. Petitioner appeals on the
ground that portions of these under declared rents are yet to be
collected by the previous owners and turned over or received by the
corporation. Petitioner cited that some rents were deposited with the
court, such that the corporation does not have actual nor constructive
control over them. The sole witness for the petitioner, Solis (Corporate
Secretary-Treasurer) admitted to some undeclared rents in 1956
and1957, and that some balances were not collected by the corporation
in 1956 because the lessees refused to recognize and pay rent to the
new owners and that the corporations president Isabelo Lim collected
some rent and reported it in his personal income statement, but did not
turn over the rent to the corporation. He also cites lack of actual or
constructive control over rents deposited with the court.
ISSUE:
WON the BIR was correct in assessing deficiency
against Limpan Corp. for undeclared rental income
taxes
HELD:
Yes. Petitioner admitted that it indeed had undeclared income
(although only a part and not the full amount assessed by BIR). Thus,
it has become incumbent upon them to prove their excuses by clear
and convincing evidence, which it has failed to do.
With regard to 1957 rents deposited with the court, and withdrawn
only in 1958, the court viewed the corporation as having
Both the Company and the Commissioner appealed to this Court. The
Company questions the rate of mine depletion adopted by the Court of
Tax Appeals and the disallowance of depreciation charges and certain
miscellaneous.
Issue: Whether the Court of Tax Appeals erred with respect to the rate
of mine depletion.
Held:
The Tax Code provides that in computing net income there shall be
allowed as deduction, in the case of mines, a reasonable allowance for
depletion thereof not to exceed the market value in the mine of the
product thereof which has been mined and sold during the year for
which the return is made [Sec. 30(g) (1) (B)].
The formula for computing the rate of depletion is:
Cost
of
Mine
Property
---------------------- = Rate of Depletion per Unit Estimated ore Deposit
of Product Mined and sold.
The Commissioner and the Company do not agree as to the figures
corresponding to either factor that affects the rate of depletion per unit.
They agree, however, that the "cost of the mine property" consists of
(1) mine cost; and (2) expenses of development before production.
As an income tax concept, depletion is wholly a creation of the statute
"solely a matter of legislative grace."
Hence, the taxpayer has the burden of justifying the allowance of any
deduction claimed. As in connection with all other tax controversies,
the burden of proof to show that a disallowance of depletion by the
Commissioner is incorrect or that an allowance made is inadequate is
upon the taxpayer, and this is true with respect to the value of the
3M PHILIPPINES v CIR
Facts:
3M Philippines, Inc. is a subsidiary of the Minnesota Mining and
Manufacturing Company (or "3M-St. Paul") a non-resident foreign
corporation with principal office in St. Paul, Minnesota, U.S.A. It is
the exclusive importer, manufacturer, wholesaler, and distributor in the
Philippines of all products of 3M-St. Paul. To enable it to manufacture,
package, promote, market, sell and install the highly specialized
products of its parent company, and render the necessary post-sales
service and maintenance to its customers, 3M Phil entered into a
"Service Information and Technical Assistance Agreement" and a
"Patent and Trademark License Agreement" with the latter under
which the 3m Phils agreed to pay to 3M-St. Paul a technical service
fee of 3% and a royalty of 2% of its net sales. Both agreements were
submitted to, and approved by, the Central Bank of the Philippines.
The petitioner claimed the following deductions as business expenses:
(a) Royalties and technical service fees of P 3,050,646.00; and
(b) Pre-operational cost of tape coater of P97, 485.08.
As to (a), the Commissioner of Internal Revenue allowed a deduction
of P797, 046.09 only as technical service fee and royalty for locally
manufactured products, but disallowed the sum of P2, 323,599.02
alleged to have been paid by the petitioner to 3M-St. Paul as technical
service fee and royalty on P46, 471,998.00 worth of finished products
imported by the petitioner from the parent company, on the ground that
the fee and royalty should be based only on locally manufactured
goods. While as to (b), the CIR only allowed P19,544.77 or one-fifth
(1/5) of 3M Phils. capital expenditure of P97,046.09 for its tape coater
which was installed in 1973 because such expenditure should be
amortized for a period of five (5) years, hence, payment of the
disallowed balance of P77,740.38 should be spread over the next four
(4) years. The CIR ordered 3M Phil. to pay P840, 540 as deficiency
income tax on its 1974 return, plus P353,026.80 as 14% interest per
annum from February 15, 1975 to February 15, 1976, or a total of
P1,193,566.80.
3M Phils protested the CIRs assessment but it did not answer the
protest, instead issuing a warrant of levy. The CTA affirmed the
assessment on appeal.
Issue:
Whether or not 3M Phils is entitled to the deductions due to royalties?
Ruling:
No. CB Circular No. 393 (Regulations Governing Royalties/Rentals)
dated December 7, 1973 was promulgated by the Central Bank as an
exchange control regulation to conserve foreign exchange and avoid
unnecessary drain on the country's international reserves (69 O.G. No.
51, pp. 11737-38). Section 3-C of the circular provides that royalties
shall be paid only on commodities manufactured by the licensee under
the royalty agreement:
Section 3. Requirements for Approval and Registration. The
requirements for approval and registration as provided for in Section 2
above include, but are not limited to the following:
c. The royalty/rental contracts involving manufacturing'
royalty, e.g., actual transfers of technological services such
as secret formula/processes, technical know-how and the
like shall not exceed five (5) per cent of the wholesale price
of the commodity/ties manufactured under the royalty
agreement. For contracts involving 'marketing' services
such as the use of foreign brands or trade names or
trademarks, the royalty/rental rate shall not exceed two (2)
per cent of the wholesale price of the commodity/ties
2. NO.
To be deductible as a business expense, three conditions are imposed,
namely:
(1) The expense must be ordinary and necessary,
(2) It must be paid or incurred within the taxable year, and
(3) It must be paid or incurred in carrying on a trade or business.
In addition, not only must the taxpayer meet the business test, he must
substantially prove by evidence or records the deductions claimed
under the law, otherwise, the same will be disallowed. The mere
allegation of the taxpayer that an item of expense is ordinary and
necessary does not justify its deduction.
Ordinarily, an expense will be considered 'necessary' where the
expenditure is appropriate and helpful in the development of the
taxpayer's business. It is 'ordinary' when it connotes a payment which
is normal in relation to the business of the taxpayer and the
surrounding circumstances. The term 'ordinary' does not require that
the payments be habitual or normal in the sense that the same taxpayer
will have to make them often; the payment may be unique or nonrecurring to the particular taxpayer affected. There is thus no hard and
fast rule on the matter. The right to a deduction depends in each case
on the particular facts and the relation of the payment to the type of
business in which the taxpayer is engaged. The intention of the
taxpayer often may be the controlling fact in making the
determination. Assuming that the expenditure is ordinary and
necessary in the operation of the taxpayer's business, the answer to the
question as to whether the expenditure is an allowable deduction as a
business expense must be determined from the nature of the
expenditure itself, which in turn depends on the extent and
permanency of the work accomplished by the expenditure.
Since the margin fees in question were incurred for the remittance of
funds to petitioner's Head Office in New York, which is a separate and
distinct income taxpayer from the branch in the Philippines, for its
disposal abroad, it can never be said therefore that the margin fees
were appropriate and helpful in the development of petitioner's
business in the Philippines exclusively. ESSO has not shown that the
remittance to the head office of part of its profits was made in
furtherance of its own trade or business and therefore cannot be
claimed as an ordinary and necessary expense paid or incurred in
carrying on its own trade or business.