Upholding the tax privileges of cooperatives

Home Press Room Let's Talk Tax Upholding the tax privileges of cooperatives

Upholding the tax privileges of cooperatives by: Oliver Gil M. Beltran

The power to tax is the power to destroy. Those were the strong words of Chief Justice Marshall in McCulloch vs. The State of Maryland, 4 Law Ed. 579. However, as elucidated in J.B.L. Reyes vs. Almanzor, et al., G.R. Nos. L-49839-46, April 26, 1991, the web or unreality spun from Marshall's famous dictum was brushed away by one stroke of Mr. Justice Holmes' pen, thus: "The power to tax is not the power to destroy while this Court sitsSo it is in the Philippines." Considered as the last bastion of justice, the Supreme Court (SC) is often tasked to rule on conflicting claims and rights of party litigants. A case in point is the recent landmark decision promulgated by the Court on January 22, 2010 (G.R. No. 182722) involving a credit cooperative from the south, in which two noble, albeit incompatible, policies of the State were in issue. In the abovementioned case, the long standing principle that tax exemptions are highly disfavored and construed strictissimi juris against the taxpayer and liberally in favor of the taxing power is set in opposition against the similarly avowed policy of the State of fostering the creation and growth of cooperatives as instruments of the social justice provision enshrined in the Constitution. Previously, the First Division of the Court of Tax Appeals (CTA) held that the subject credit cooperative is liable for deficiency withholding taxes on interest from savings and time deposits of its members for taxable years 1999 and 2000, including delinquency annual interest of 20 percent. The CTA En Banc went on to subsequently affirm the credit cooperatives supposed deficiency withholding tax liability. The CTA En Banc held that the cooperatives conduct of business constitutes activities under the phrase 'similar arrangements' contained in Section 2.57.1 of Revenue Regulations No. 02-98 which expressly requires the withholding of 20 percent final tax therefrom. The CTA En Banc further said that being a withholding agent, the cooperative is therefore obliged to file withholding tax returns on all income payments subject to withholding. On appeal, the SC reversed the aforementioned ruling and declared that the spirit of the law mandates that cooperatives and all their members are entitled to a preferential tax treatment.

According to the SC, Bureau of Internal Revenue (BIR) Ruling Nos. 551-88 dated November 16, 1988, and DA-591-2006 dated October 5, 2006, being in perfect harmony with the Constitution and the laws that they seek to implement, apply in the instant case. The SC upheld the two BIR rulings which confirm that interest from any Philippine currency bank deposit and yield or any monetary benefit from deposit substitutes subject to the 20 percent final tax pertain to those paid by banks. Hence, cooperatives are not required to withhold said 20 percent final tax on the savings account and time deposits of their members. These pronouncements by the Court underscore the importance for taxpayers to secure BIR rulings concerning the taxability of transactions affecting their daily operations for the reason that BIR rulings serve as an assurance of the correctness and accuracy of the interpretation of gray areas in taxation. It is noteworthy that the SC has time and again accorded great weight to the interpretations of administrative agencies in charge of enforcing a law, so long as these are not in sharp conflict with the Constitution and the law. The respect given to such interpretations is further manifested through the principle of legislative approval of administrative interpretation by reenactment, which provides that the reenactment of a statute substantially unchanged is persuasive indication of the adoption by Congress of a prior executive construction. In other words, (w)hen a statute is susceptible of the meaning placed upon it by a ruling of the government agency charged w ith its enforcement and the Legislature thereafter re-enacts the provisions with substantial charge, such action is to some extent confirmatory that the ruling carries out the legislative purpose. (Laxamana vs. Baltazar, 92 Phil. 32; Mead Corporation vs. Commissioner of Internal Revenue, 116 F (2d) 187). The aforesaid principle was applied in the instant case since the subject section of the old Cooperative Code was re-enacted under Section 61 of Republic Act (RA) No. 9520 (also known as Philippine Cooperative Code of 2008), with an additional sentence that effectively affirmed the previous interpretation of the BIR that Section 24(B)(1) of the Tax Code does not apply to cooperatives. Hence, Section 61 of RA 9520 specifically provided that, the transactions of members with cooperatives shall not be subject to any taxes and fees, including but not limited to final taxes on members deposits and documentary tax. The Court stressed that Section 24(B)(1) of the Tax Code must be read in relation to RA 6938, as amended by RA 9520. Section 61 of RA 6938 provides that cooperatives that do not transact any business with nonmembers or the general public shall not be subject to any government taxes or fees imposed under the internal revenue laws and other tax laws.

Section 126, on the other hand, requires that in case of doubt as to the meaning of any provision of the Cooperative Code or the implementing regulations, the same shall be resolved liberally in favor of the cooperatives and their members. Clearly, the legislative intent is for cooperatives to be given preferential tax treatment, which extends to all the members of such cooperatives, in accordance with Section 126 of RA 6938. The SC held that cooperatives, including their members, deserve a preferential tax treatment because of the vital role they play in the attainment of economic development and social justice. Thus, although taxes are the lifeblood of the government, the States power to tax must give way to foster the creation and growth of cooperatives. To borrow the words of Justice Isagani A. Cruz: The power of taxation, while indispensable, is not absolute and may be subordinated to the demands of social justice. Truly, in a democracy like ours, the exercise of a great power is neither absolute nor unyielding. It bows down to the calls of justice, equality, and to the primacy of the common good. In case of doubt as to the meaning of any provision of this Code or the regulations issued in pursuance thereof, the same shall be resolved liberally in favor of the cooperatives and their members. This article is not intended to be a substitute for professional advice. For comments and inquiries, you may e-mail the author at OliverGil.Beltran@ph.gt.com. For other tax concerns, please check out our other tax services.

BIR TAX INVESTIGATION PROCEDURES FOR COOPERATIVES, ETC.

The BIR has resumed the tax investigation of cooperatives, following its issuance of Revenue Memorandum Circular No. 19-2010, dated March 5, 2010. It is might as well that we have a run-down on the BIRs GENERAL AUDIT PROCEDURES AND DOCUMENTATION. This set of procedures, of course, applies to all of BIRs clients, including cooperatives, among others.

We are reprinting in this space the said procedures, to guide cooperatives when they come under tax audit by the BIR:

1. WHEN DOES THE AUDIT PROCESS BEGIN?

The audit process commences with the issuance of a Letter of Authority to a taxpayer who

has been selected for tax audit.

2. WHAT IS A LETTER OF AUTHORITY?

The Letter of Authority, is an official document that empowers a BIR Revenue Officer to examine and scrutinize a Taxpayers books of accounts and other accounting records, in order to determine the Taxpayers correct internal revenue tax liabilities.

3. WHO ISSUES THE LETTER OF AUTHORITY?

Letter of Authority, for audit/investigation of taxpayers under the jurisdiction of National Office, shall be issued and approved by the Commissioner of Internal Revenue, while, for taxpayers under the jurisdiction of Regional Offices, it shall be issued by the Regional Director.

4. WHEN MUST A LETTER OF AUTHORITY BE SERVED?

A Letter of Authority must be served to the concerned Taxpayer within thirty (30) days from its date of issuance, otherwise, it shall become null and void. The Taxpayer shall then have the right to refuse the service of this Letter of Authority, unless the Letter of Authority is revalidated.

5. HOW OFTEN CAN A LETTER OF AUTHORITY BE REVALIDATED?

A Letter of Authority is revalidated through the issuance of a new Letter of Authority. However, a Letter of Authority can be revalidated only once, for Letters of Authority issued in the Revenue Regional Offices or the Revenue District Offices; or twice, in the case of Letters of Authority issued by the National Office. Any suspended Letters of Authority must be attached to the new Letter of Authority issued.

6. HOW MUCH TIME DOES A REVENUE OFFICER HAVE TO CONDUCT AN AUDIT?

A Revenue Officer is allowed only one hundred twenty (120) days from the date of receipt of

a Letter of Authority by the Taxpayer to conduct the audit and submit the required report of investigation. If the Revenue Officer is unable to submit his final report of investigation within the 120-day period, he must then submit a Progress Report to his Head of Office, and surrender the Letter of Authority for revalidation.

7. HOW IS A PARTICULAR TAXPAYER SELECTED FOR AUDIT?

Officers of the Bureau (Revenue District Officers; Chief, Large Taxpayers Assessment Division; Chief, Excise Taxpayer Operations Division; Chief, Policy Cases and Tax Fraud Division) responsible for the conduct of audit/investigation shall prepare a list of all taxpayers who fall within the selection criteria prescribed in a Revenue Memorandum Order issued by the CIR to establish guidelines for the audit program of a particular year.

The list of taxpayers shall then be submitted to their respective Assistant Commissioner for pre-approval and to the Commissioner of Internal Revenue for final approval. This list submitted by RDO shall be pre-approved by the Regional Director and finally approved by the Assistant Commissioner, Assessment Service (RMO 64-99, 67-99, 18-2000 and 192000).

8. HOW MANY TIMES CAN A TAXPAYER BE SUBJECTED TO EXAMINATION AND INSPECTION FOR THE SAME TAXABLE YEAR?

A taxpayers book of accounts shall be subjected to examination and inspection only once for a taxable year, except in the following cases:

When the Commissioner determines that fraud, irregularities, or mistakes were committed by Taxpayer;

When the Taxpayer himself requests a re-investigation or re-examination of his book of accounts;

When there is need to verify the Taxpayers compliance with withholding and other internal revenue taxes as prescribed in a Revenue Memorandum Order issued by the Commissioner

of Internal Revenue;

When the Taxpayers capital gains tax liabilities must be verified; and

When the Commissioner chooses to exercise his power to obtain information relative to the examination of other Taxpayers (Secs. 5 & 235 NIRC).

9. WHAT ARE SOME OF THE POWERS OF THE COMMISSIONER RELATIVE TO THE AUDIT PROCESS?

In addition to the authority of the Commissioner to examine and inspect the books of accounts of a Taxpayer who is being audited, the Commissioner may also;

Obtain data and information from private parties other than the Taxpayer himself (Sec. 5, NIRC); and

Conduct inventory and surveillance, and prescribe presumptive gross sales and receipts (Sec. 6, NIRC).

10. WHAT IS A NOTICE FOR INFORMAL CONFERENCE?

A Notice for Informal Conference is a written notice informing a Taxpayer that the findings of the audit conducted on his books of accounts and accounting records indicate that additional taxes or deficiency assessments have to be paid.

If, after the culmination of an audit, a Revenue Officer recommends the imposition of deficiency assessments, this recommendation is communicated by the Bureau to the Taxpayer concerned during an informal conference call for this purpose. The Taxpayer shall then have fifteen (15) days from the date of receipt of the Notice for Informal Conference to explain his side.

11. WITHIN WHAT TIME PERIOD MUST AN ASSESSMENT BE MADE?

An assessment must be made within three (3) years from the last day prescribed by law for the filing of the tax return for the tax that is being subjected to assessment or from the day the return was filed if filed late.

However, in cases involving tax fraud, the Bureau has ten (10) years from the date of discovery of such fraud within which to make the assessment. Any assessments issued after the applicable period are deemed to have prescribed, and can no longer be collected from the Taxpayer, unless the Taxpayer has previously executed a Waiver of Statute of Limitations.

12. WHAT IS JEOPARDY ASSESSMENT?

A Jeopardy Assessment is a tax assessment made by an authorized Revenue Officer without the benefit of complete or partial audit, in light of the ROs belief that the assessment and collection of a deficiency tax will be jeopardized by delay caused by the Taxpayers failure to:

Comply with audit and investigation requirements to present his books of accounts and/or pertinent records, or

Substantiate all or any of the deductions, exemptions or credits claimed in his return.

13. WHAT IS A PRE-ASSESSMENT NOTICE (PAN)?

The Pre-Assessment Notice (PAN) is a communication issued by the Regional Assessment Division, or any other concerned BIR Office, informing the Taxpayer who has been audited of the findings of the Revenue Officer, following the review of these findings.

If the Taxpayer disagrees with the findings stated in the PAN, he shall then have fifteen (15) days from receipt of the PAN to file a written reply contesting the proposed assessment.

14. UNDER WHAT INSTANCE IS PAN NO LONGER REQUIRED?

A Preliminary Assessment Notice shall not be required in any of the following cases, in which case, issuance of the formal assessment notice for the payment of the taxpayers deficiency tax liability shall be sufficient:

When the finding for any deficiency tax is the result of mathematical error in the computation of the tax appearing on the face of the tax return filed by the taxpayer; or

When a taxpayer who opted to claim a refund or a tax credit of excess creditable withholding tax for a taxable period was determined to have carried over and automatically applied the same amount claimed against the estimated tax liabilities for the taxable quarter or quarters of the succeeding taxable year; or

When the excise tax due on excisable articles has not been paid; or

When an article locally purchased or imported by an exempt person, such as, but not limited to, vehicles, capital equipment, machineries and spare parts, has been sold, traded or transferred to non-exempt persons.

15. WHAT IS A NOTICE OF ASSESSMENT/FORMAL LETTER OF DEMAND?

A Notice of Assessment is a declaration of deficiency taxes issued to a Taxpayer who fails to respond to a Pre-Assessment Notice within the prescribed period of time, or whose reply to the PAN was found to be without merit. The Notice of Assessment shall inform the Taxpayer of this fact, and that the report of investigation submitted by the Revenue Officer conducting the audit shall be given due course.

The formal letter of demand calling for payment of the taxpayers deficiency tax or taxes shall state the facts, the law, rules and regulations, or jurisprudence on which the assessment is based, otherwise, the formal letter of demand and the notice of assessment shall be void.

16. WHAT IS REQUIRED OF A TAXPAYER WHO IS BEING AUDITED?

A taxpayer who is being audited is obliged to:

Duly acknowledge his receipt of the appropriate Letter of Authority upon its presentation by the Revenue Officer authorized to conduct the audit by affixing in the Letter of Authority the name of the recipient and the date of receipt.

Present within a reasonable period of time, his books of accounts and other related accounting records that may be required by the Revenue Officer; and

Submit the necessary schedules as may be requested by the Revenue Officer within a reasonable amount of time from his (Taxpayers) receipt of the Letter of Authority.

17. WHAT IS THE RECOURSE OF THE TAXPAYER WHO CANNOT SUBMIT THE DOCUMENTS BEING REQUIRED OF HIM WITHIN THE PRESCRIBED PERIOD OF TIME?

If a taxpayer, believing that he cannot present his books of accounts and/or other accounting records, intends to request for more time to present these documents in order to avoid the Issuance of a Jeopardy Assessment, the Taxpayer may execute what is referred to as a Waiver of the Statute of Limitations.

18. WHAT IS A WAIVER OF THE STATUTE OF LIMITATIONS?

The Waiver of the Statute of Limitations is a signed statement whereby the taxpayer conveys his agreement to extend the period within which the Bureau may validly issue an assessment for deficiency taxes. If a Taxpayer opts to execute a Waiver of the Statute of Limitations, he shall likewise be, in effect, waiving his right to invoke the defense of prescription for assessments issued after the reglementary period.

No Waiver of the Statute of Limitations shall be considered valid unless it is accepted by a duly authorized Bureau official.

19. IF A TAXPAYER DOES NOT AGREE WITH THE ASSESSMENT MADE FOLLOWING AN AUDIT, CAN HE PROTEST THIS ASSESSMENT?

Yes, he can. A Taxpayer has the right to contest an assessment, and may do so by filing a letter of protest stating in detail his reasons for contesting the assessment.

20. WHAT ARE SOME CHARACTERISTICS OF A VALID PROTEST?

A protest is considered valid if it satisfies the following conditions:

It is made in writing, and addressed to the Commissioner of Internal Revenue; It contains the information, and complies with the conditions required by Sec. 6 of Revenue Regulations No. 12-85, to wit:

a) Name of the taxpayer and address for the immediate past three (3) taxable years;

b) Nature of request whether reinvestigation or reconsideration specifying newly discovered evidence he intends to present if it is a request for investigation;

c) The taxable periods covered;

d) Assessment number;

e) Date of receipt of assessment notice or letter of demand;

f) Itemized statement of findings to which the taxpayer agrees as a basis for computing the tax due, which amount should be paid immediately upon the filing of the protest. For this purpose, the protest shall not be deemed validly filed unless payment of the agreed portion of the tax is paid first.

g) The itemized schedule of adjustments with which the taxpayer does not agree;

h) A statement of facts and/or law in support of the protest.

The taxpayer shall state the facts, applicable law, rules and regulations or jurisprudence on

which his protest is based, otherwise, his protest shall be considered void and without force and effect on the event the letter of protest submitted by the taxpayer is accepted. The taxpayer shall submit the required documents in support of his protest within sixty (60) days from date of filing of his letter of protest, otherwise, the assessment shall become final, executory and demandable.

It is filed within thirty (30) days from the Taxpayers receipt of the Notice of Assessment and formal Letter of Demand.

21. IN THE EVENT THE COMMISSIONERS DULY AUTHORIZED REPRESENTATIVE DENIES A TAXPAYERS PROTEST, WHAT ALTERNATIVE COURSE OF ACTION IS OPEN TO THE TAXPAYER?

If a protest filed by a Taxpayer be denied by the Commissioners duly authorized representative, the Taxpayer may request the Commissioner for a reconsideration of such denial and that his tax case be referred to the Bureaus Appellate Division. The Appellate Division serves as a Court, where both parties, i.e., the Revenue Officer on one hand, and the Taxpayer on the other, can present testimony and evidence before a Hearing Officer, to support their respective claims.

22. WHAT RECOURSE IS OPEN TO A TAXPAYER IF HIS REQUEST IS DENIED OR HIS PROTEST IS NOT ACTED UPON?

Should the Taxpayers request for reconsideration is denied or his protest is not acted upon within 180 days from submission of documents by the Commissioner, the Taxpayer has the right to appeal with the Court of Tax Appeals (CTA).

Any appeal must be done within thirty (30) days from the date of the Taxpayers receipt of the Commissioners decision denying the request for reconsideration or from the lapse of the 180 day period counted from the submission of the documents. (Sec. 228 of the Tax Code, as amended).

23. IF THE TAXPAYER IS NOT SATISFIED WITH THE CTAS DECISION, CAN HE APPEAL THE DECISION TO A HIGHER COURT?

Yes, he can. Decisions of the Court of Tax Appeals may be appealed with the Court of Appeals within fifteen (15) days from the Taxpayers receipt of the CTAs decision. In the event that the Taxpayer is likewise unsatisfied with the decision of the Court of Appeals, he may appeal this decision with the Supreme Court.

24. CAN A TAXPAYER CLAIM A REFUND OR TAX CREDIT FOR ERRONEOUSLY OR ILLEGALLY COLLECTED TAXES?

Yes, he can. The Taxpayer may file such a claim with the Commissioner of Internal Revenue (Sec. 229, NIRC) within two (2) years from the payment of the tax penalty sought to be refunded. Failure of the taxpayer to file within the prescribed period shall result in the forfeiture of his right to the refund or tax claim.

25. IF A TAXPAYER HAS FILED A CLAIM FOR REFUND AND THE BUREAU HAS YET TO RENDER A DECISION ON THE CLAIM, CAN THE TAXPAYER ELEVATE HIS CLAIM TO THE CTA?

Yes, he can. If the two (2) year period stated above is about to end, and the Commissioner has yet to render a decision on the claim. (Gibbs v. Collector, L-13453, February 29, l960).

(Cooperatives-Philippines Note: We may recall the case filed by the DUMAGUETE CATHEDRAL CREDIT COOPERATIVE vs. BIR, which brought the case from the BIR, to the lower courts, up to the Supreme Court, with the latter finding in favor of the cooperative the merit of exempting the cooperative and its members from the payment of the final 20% tax on the interest earned on the members deposits with the cooperative.) You might also like:

TAX EXEMPTION RULES FOR COOPERATIVES UNDER ''PHILIPPINE COOPERATIVE CODE OF 2008'' PHILIPPINE SUPREME COURT UPHOLDS TAX EXEMPTION OF COOPERATIVES IT'S ON WITH THE BIR TAX AUDIT OF BIG COOPERATIVES; BUT DOES CDA AUTHORIZATION COME BEFORE OR AFTER BIR'S SERVICE OF ITS LETTER OF AUTHORIZATION ?

TAX EXEMPTION RULES FOR COOPERATIVES UNDER ''PHILIPPINE COOPERATIVE CODE OF 2008''
REPUBLIC OF THE PHILIPPINES DEPARTMENT OF FINANCE BUREAU OF INTERNAL REVENUE Quezon City

February 11, 2010

REVENUE MEMORANDUM CIRCULAR NO. 12-2010

Subject : Circularizing the Full Text of JOINT RULES AND REGULATIONS

IMPLEMENTING ARTICLES 60, 61 AND 144 OF REPUBLIC ACT

NO. 9520, OTHERWISE KNOWN AS THE PHILIPPINE

COOPERATIVE CODE OF 2008 IN RELATION TO RA 8424 OR

THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED

To : All Internal Revenue Officials, Employees and Others Concerned

For the information and guidance of all internal revenue officials, employees and others concerned, attached is the full text of JOINT RULES AND REGULATIONS IMPLEMENTING ARTICLES 60, 61 AND 144 OF REPUBLIC ACT NO. 9520, OTHERWISE KNOWN AS THE PHILIPPINE COOPERATIVE CODE OF 2008 IN RELATION TO RA NO. 8424 OR THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED signed by the Department of Finance, the Bureau of Internal Revenue, and the Cooperative Development Authority last February 5, 2010.

All officials and employees are enjoined to give this Circular as wide a publicity as possible.

(Original Signed)

JOEL L. TAN-TORRES

Commissioner of Internal Revenue

B-4

***

Republic of the Philippines

DEPARTMENT OF FINANCE

Roxas Boulevard Corner Pablo Ocampo Street

Manila 1004

5 February 2010

JOINT RULES AND REGULATIONS IMPLEMENTING ARTICLES 60, 61 AND 144 OF REPUBLIC ACT NO. 9520, OTHERWISE KNOWN AS THE PHILIPPINE COOPERATIVE CODE OF 2008 IN RELATION TO RA NO. 8424 OR THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED

SECTION 1. SCOPE. Pursuant to the provisions of Sections 4 and 244 of the National Internal Revenue Code of 1997 (NIRC), as Amended, and Article 144 of RA 9520, this Joint Rules and Regulations are hereby promulgated to implement Articles 6o,61 of RA 9520 granting tax exemption to cooperatives, prescribe the guidelines for the availment thereof and for other purposes.

SECTION 2. CONSTRUCTION - The provisions of this Joint Rules and Regulations shall be construed and applied in accordance with and in furtherance of the declared policy, concepts, and principles enunciated under Articles 2, 3, and 4 of RA 9520, without prejudice to the provisions of Section 4 of the NIRC, as Amended.

In case of conflict or ambiguity which may arise in the implementation of this Joint Regulations or in case there is any doubt as to the meaning of any provision of this regulation or any regulation issued in pursuance to RA 9520, the same shall be resolved and construed liberally in favor of the cooperatives and their members as provided for in Article 142 of RA 9520.

SECTION 3. DEFINITION OF TERMS.

a) ACCUMULATED RESERVES refers to the accumulated amount of money Annually deducted from the net surplus, which shall be less than fifty per centum (50%) for the first five years of operations after registration and at least ten per centum of the net surplus thereafter, intended not for the allocation or distribution to the members but for the protection and stability of the cooperative, commonly referred to as the Reserve Fund.

b) BUREAU OF INTERNAL REVENUE refers to the government agency entrusted with the power to, assess and collect all national internal revenue taxes, fees and charges, and the enforcement of all forfeitures, penalties and fines connected therewith, hereinafter referred to as the BIR.

c) BUSINESS TRANSACTION refers to any business activity or livelihood engaged in by the cooperative where such cooperative generates savings.

d) CAPITAL ASSETS refers to the property held by the taxpayer (whether or not connected with trade or business), but does not include stock in trade of the taxpayer or other

property of a kind which would properly be included in inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business, or property, used in the trade or business, of a character which is subject to the allowance for depreciation.

e) CERTIFICATE OF GOOD STANDING refers to the certificate issued annually by the CDA to cooperatives which comply with the requirements provided in CDA-Memorandum Circular No. 2008-03, and any subsequent amendments thereto.

For internal revenue tax purposes, said Certificate of Good Standing is one of the essential requirements for the grant of the Certificate of Tax Exemption/Ruling provided for in the next paragraph.

f) CERTIFICATE OF TAX EXEMPTION/RULING refers to the certificate/ruling issued by BIR granting exemption to a cooperative, which is valid for a period of five (5) years from the date of issue.

g) COOPERATIVE refers to an autonomous and duly registered association of persons, with a common bond of interest, who have voluntarily joined together-to achieve their social, economic, and cultural needs and aspirations by making equitable contributions to the capital required, patronizing their products and services and accepting a fair share of the risks and benefits, of the undertaking in accordance with universally accepted cooperative principles.

h) COOPERATIVE DEVELOPMENT AUTHORITY refers to the government agency created under R.A. 6939 mandated to register, regulate and develop cooperatives, hereinafter referred to as the CDA.

i) INTEREST ON SHARE CAPITAL refers to the interest earned by the members paid-up to the capitalization of the cooperative. It is based on the average share capital contribution of members computed on a per month basis against the pre-set amount earmarked by the board of directors for interest on share capital.

j) PATRONAGE REFUND refers to the refund or return to the members of net savings generated from the operations of the cooperative.

k) REGISTRATION refers to the operative act granting juridical personality to a proposed cooperative as evidenced by a Certificate of Registration issued by the CDA.

l) RELATED OPERATIONS/TRANSACTIONS refers to transactions of cooperatives which are part of the objectives and purposes, as enumerated in the Articles of Cooperation.

m) TRANSACTION WITH MEMBERS refers to the cooperative activity that provides goods and services to members where the cooperative generates net savings/surplus.

n) TRANSACTION WITH NON-MEMBERS refers to the cooperative activity that provides goods and services to non-members where the cooperative generates savings/surplus.

o) INDIVIDED NET SURPLUS/UNDIVIDED NET SAVINGS refers to the new amount arising from the operations of the cooperative after deducting the operational expenses from revenue generated, not construed as profits, but as excess of payments made by the members for the loans borrowed or the goods and services bought from the cooperative including other inflows of assets resulting from its other operating activities and which shall be deemed to have been returned tothem if the same is distributed as prescribed in accordance with Article 86 of RA 9520 and the by-laws of the cooperative.

p) UNRELATED TRANSACTIONS refers to transactions of cooperatives which are not part of the objectives and purposes as enumerated in the Articles of Cooperation.

SECTION 4. TYPES OF COOPERATIVES. A cooperative may fall under any of the Following types:

a) CREDIT COOPERATIVE is one that promotes and undertakes savaings and Lending services among its members. It generates a pool of funds in order to provide financial assistance and other related financial services to its members for productive and

provident purposes;

b) CONSUMER COOPERATIVE is one the primary purpose of which is to procure and distribute commodities to members and non-members;

c) PRODUCERS COOPERATIVE is one that undertakes a joint production whether agricultural or industrial. It is formed and operated by its members to undertake the production and processing of raw materials or goods produced by its members into finished or processed products for sale by the cooperative to its members and non-members. Any end product or its derivative arising from the raw materials produced by its members, sold in the name and for the account of the cooperative, shall be deemed a product of the cooperative and its members;

d) MARKETING COOPERATIVE is one which engages in the supply of production inputs to members and markets their products;

e) SERVICE COOPERATIVE is one which engages in medical and dental care, hospitalization, transportation, insurance, housing, labor, electric, light and power, communication, professional and other services;

f) MULTIPURPOSE COOPERATIVE is one which combines two (2) or more of the business activities of these different types of cooperatives;

g) ADVOCACY COOPERATIVE is a primary cooperative which promotes and advocates cooperativism among its members and the public through socially-oriented projects, education and training, research and communication, and other similar activities to reach out to its intended beneficiaries;

h) AGRARIAN REFORM COOPERATIVE is one organized by marginal farmers majority of which are agrarian reform beneficiaries for the purpose of developing an appropriate system of land tenure, land development, land consolidation or land management in areas covered by agrarian reform;

i) COOPERATIVE BANK is one organized for the primary purpose of providing a wide range of financial services to cooperatives and their members;

j) DAIRY COOPERATIVE - is one whose members are engaged in the production of fresh milk which may be processed and/or marketed as dairy products;

k) EDUCATION COOPERATIVE is one organized for the primary purpose of owning and operating licensed education institutions, notwithstanding the provisions of Republic Act No. 9155, otherwise known as the Governance of Basic Education Act of 2001;

l) ELECTRIC COOPERATIVE is one organized for the primary purpose of undertaking power generation, utilizing renewable energy sources, including hybrid systems, acquisition and operation of sub-transmission or distribution to its household members;

m) FINANCIAL SERVICE COOPERATIVE is one organized for the primary purpose of engaging in savings and credit services and other financial services;

n) FISHERMEN COOPERATIVE is one organized by marginalized fishermen in localities whose products are marketed either as fresh or processed products;

o) HEALTH SERVICES COOPERATIVE is one organized for the primary purpose of providing medical, dental and other health services;

p) HOUSING COOPERATIVE is one organized to assist or provide access to housing for the benefit of its regular members who actively participate in the saving program for housing. It is co-owned and controlled by its members;

q) INSURANCE COOPERATIVE is one engaged in the business of insuring life and property of cooperatives and their members;

r) TRANSPORT COOPERATIVE is one which includes land and sea transportation, limited to small vessels, as defined or classified under the Philippine maritime laws, organized under the provisions of this Code;

s) WATER SERVICE COOPERATIVE is one organized to own, operate and manage water systems for the provision and distribution of potable water for its members and their households;

t) WORKERS COOPERATIVE is one organized by workers, including the self-employed, who are at the same time the members and owners of the enterprise. Its principal purpose is to provide employment and business opportunities to its members and manage it in accordance with cooperative principles; and

u) OTHER TYPES OF COOPERATIVES as may be determined by the CDA.

SECTION 5. CATEGORIES OF COOPERATIVES. Cooperatives shall be categorized according to membership and territorial considerations as follows:

a) In terms of Membership-Cooperatives shall be categorized into:

a.1) Primary The members of which are natural persons;

b.2) Secondary The members of which are primaries; and

c.3) Tertiary The members of which are secondary cooperatives;

b) In terms of Territory Cooperatives shall be categorized according to areas of operations which may or may not coincide with the political subdivisions of the country.

SECTION 6. CLASSIFICATION OF COOPERATIVES ACCORDING TO THE EXTENT OF THE TAX EXEMPTIONS GRANTED.

a) Those duly registered cooperatives which transact business with members only; and

b) Those duly registered cooperative which transact business with both members and non-

members which are further sub-classified according to the following:

b.1) Cooperatives with accumulated reserves and undivided net savings of

\ not more than Ten Million Pesos (Php 10,000,000.00); and

b.2) Cooperatives with accumulated reserves and undivided net savings of

more than Ten Million Pesos (Php 10,000,000.00).

SECTION 7. TAX EXEMPTION OF DULY REGISTERED COOPERATIVE WHICH TRANSACT BUSINESS WITH MEMBERS ONLY. - Duly registered cooperatives dealing /transacting business with members only shall be exempt from paying any taxes and fees, including but not limited to:

a) Income Tax imposed by Title II of the NIRC, as amended;

b) Value-added Tax (VAT) imposed under Title IV of the NIRC, as amended

c) Percentage Tax imposed under Title V of the NIRC, as amended;

d) Donors Tax imposed under Title III of the NIRC, as amended, on donations to duly accredited charitable research and educational institutions and reinvestment to socioeconomic projects within the area of operation of the cooperatives;

e) Excise Tax under Title VI of the NIRC, as amended, for which it is directly liable;

f) Documentary Stamp Tax imposed under Title VII of the NIRC, as amended, provided, however, that the other party to the taxable document/transaction who is not exempt shall be the one directly liable for the tax;

g) Annual Registration Fee of P500.00 under Section 236(B) of the NIRC, as amended;

h) All taxes on transactions with insurance companies and banks, including but not limited to 20% final tax on interest and7.5% final income tax on interest income derived from a depository bank under the expanded foreign currency deposit system; and

i) Electric cooperatives duly registered with the Authority shall be exempt from VAT on revenues on systems loss and VAT on revenues and distribution, supply, metering and lifeline subsidy of electricity to their members.

SECTION 8. TAXABILITY/EXEMPTION OF DULY REGISTERED COOPERATIVES WHICH TRANSACT BUSINESS WITH MEMBERS AND NON-MEMBERS.

a) Cooperatives with accumulated reserves and undivided net savings of not more

Than Ten Million (Php 10,000,000.00) - -Exemption from all national internal revenue taxes for which these cooperatives are liable as enumerated under Section 7 of this Joint Rules and Regulations.

b) Cooperatives with accumulated reserves and undivided net savings of more than Ten Million Pesos (Php 10,000,000.00)

b.1) Business transactions with members Business activities engaged in by such cooperatives with its members where said cooperatives generates revenues shall be exempt from all national internal revenue taxes for which it is liable as enumerated in Section 7 of this Joint Rules and Regulations;

b.2) Business transactions with non-members Cooperatives with accumulated reserves and undivided net savings of more than Php 10,000,000.00 which transact with non-

members shall:

b.2.1.1 ) Income Tax - On the amount allocated for interest on capitals: Provided, That the same tax is not consequently imposed on interest individually received by the members. The tax base for all cooperatives liable to income tax shall be the net surplus arising from the business transactions with non-members after deducting the amounts for the statutory reserve funds as provided for in the Cooperative Code and other laws.

b.2.1.2) Value-Added Tax (VAT) - On transactions with non-members: Provided, however, That cooperatives, pursuant to Section 109, par. (L), (M) and (N) of the NIRC, as amended by RA 9337, shall be exempt from the imposition of VAT, namely the following:

i. Sales by agricultural cooperatives duly registered and in good standing with the CDA to their members, as well as sale of their produce, whether in its original state or processed form, to non-members, their importation of direct farm inputs, machineries and equipment, including spare parts thereof, to be used directly and exclusively in the production and/or processing of their produce (Sec. 109 (1) (L) of the NIRC, as amended).

Provided, further, That the exempt transactions pursuant to the above shall include sales made by a duly registered agricultural cooperative organized and operated by its members to undertake the production and processing of raw materials or of goods produced by its members into finished or processed products for sale by said cooperative to its members and non-members: Provided, finally, That any processed product or its derivative arising from the raw materials produced by its members, sold in the name and for the account of the cooperative, shall be deemed the product of the cooperative.

Sale by agricultural cooperatives to non-members can only be exempted from VAT if the producer of the agricultural products sold is the cooperative itself. If the cooperative is not the producer (e.g., trader), only those sales to its members shall be exempted from VAT.

Exempt transactions shall include sales made by a duly registered agricultural cooperative organized and operated by its members to undertake the production and processing of raw materials or of goods produced by its members into finished or processed products for sale

by said cooperative to its members and non-members.

Products produced/processed by non-members or production not related to the purposes for which a cooperative is created as stated in its Articles of Cooperation even if sold in the name of said cooperative shall not be considered as produced/processed by said cooperative. To illustrate, raw materials produced by the members and processed by the cooperative shall be exempt from VAT.

It is to be reiterated, however, that sale or importation of agricultural food products in their original state is exempt form VAT irrespective of the seller and buyer thereof, pursuant to Sec. 4.109-1 (B) (a) of Revenue Regulations No. 16-05, as amended.

ii. Gross receipts from lending activities by credit or multipurpose cooperatives duly registered with the CDA (Sec. 109 (1) (M) of the NIRC, as amended); or

iii. Sales by non-agricultural, non-electric and non-credit cooperatives duly registered with the CDA: Provided, That the share capital contribution of each member does not exceed fifteen thousand pesos (P15,000) and regardless of the aggregate capital and net surplus ratably distributed among members (Sec. 109 (1) (N) of the NIRC, as amended; or

iv. Transactions of cooperative as may be deemed VAT exempt under the NIRC.

b.2.1.3) Percentage Tax - all sales of goods and/or services rendered to non-members shall be subject to the applicable percentage taxes imposed by Title V of the NIRC, as amended, except sales made by producers, marketing, or service cooperatives;

b.2.1.4) All other Internal Revenue Taxes unless otherwise provided by the law; and

b.2.2) Be entitled to limited or full deductibility of donations to duly accredited charitable, research and educational institutions and reinvestment to socio-economic projects within the area of operation of such cooperative.

b.2.3) Pursuant to Article 61 (3) be entitled to an exemption on taxes on transactions with

insurance companies and banks, including but not limited to 20% final tax on interest deposits and 7.5% final income tax on interest income derived from a depository bank under the expanded foreign currency deposit system.

SECTION 9. TAXABILITY OF UNRELATED INCOME OF COOPERATIVE.

--Notwithstanding the foregoing, all income of cooperative not related to the main/principal business/es under its Articles of Cooperation shall be subject to all the appropriate taxes under the NIRC, as amended. This is applicable to all types of cooperatives whether dealing purely with members or both members and non-members.

SECTION 10. TAXABILITY OF COOPERATIVESTO OTHER INTERNAL REVENUE TAXES. - All cooperatives, regardless of classification shall be subject to:

a.) Capital Gains Tax from sale of shares of stock or sale, exchange or other disposition of real property classified as capital assets;

b.) Documentary stamp taxes on transactions of cooperatives dealing with non-members, except transactions with banks and insurance companies, Provided that whenever one party to the taxable document enjoys the exemption from DST, the other party who is not exempt shall be the one directly liable for the tax;

c.) VAT billed on purchases of goods and services, except the VAT on the importation by agricultural cooperative of direct farm inputs, machineries and equipment, including spare parts thereof, to be used directly and exclusively in the production and/or processing of their produce, pursuant to Section 109 (L) of the NIRC, as amended. All tax free importations shall not be transferred to any person until five (5) years, otherwise, the cooperative and the transferee or assignee shall be solidarily liable to pay twice the amount of the tax and/or the duties thereon;

d.) Withholding tax on compensation/wages, except in the case where an employee is a minimum wage earner; and creditable and final withholding taxes, if applicable. All cooperatives, regardless of classification, are considered as withholding agents on all income

payments that are subject to withholding pursuant to the provisions of Revenue Regulations No. 2-98, as amended; and

e.) All other taxes for which cooperatives are directly liable and not otherwise expressly exempted by any law.

SECTION 11. TAXABILITY OF MEMBERS/SHARE HOLDERS OF COOPERATIVES. - All members of cooperatives shall be liable to pay all the necessary internal revenue taxes under the NIRC, as amended, except for the following:

a) Any tax and fee, including but not limited to final, tax on members

deposits or fixed deposits (otherwise known as share capital) with cooperatives, and documentary tax on transactions of members with the cooperative; and

b) Patronage refund which includes all refunds, returns or rebates of the net savings generated from the operation of the cooperative.

SECTION 12. CERTIFICATE OF TAX EXEMPTION/RULING. - All cooperatives which were issued a new certificate of registration by the CDA in compliance to Article 144 (1) of RA 9520 and subsequently new cooperatives to be registered under the same Act shall secure their certificate of tax exemption from the BIR by the way of confirmatory ruling to be issued by the Regional Director or by the Assistance Commissioner of Internal Revenue (ACIR), Legal Service, as the case may be, in accordance with the delegated authority granted to them by RDAO No. 3-2009.

However, the application for Certificate of Tax Exemption of cooperatives whose accumulated reserves and undivided net savings do not exceed Ten Million Pesos (P 10,000,000.00) shall be acted upon within forty-five (45) days upon submission of all the required documents. Otherwise, the BIR officer/employee concerned may be held liable under Article 140 of RA 9520.

Such cooperatives are required to be registered with the BIR, but shall be exempt from the

payment of the annual registration fee of P500.00.

SECTION 13. DOCUMENTS TO BE ATTACHED TO THE LETTER - APPLICATION FOR THE ISSUANCE OF A CERTIFICATE OF TAX EXEMPTION/RULING. - A letter-application signed by the Chairman/General Manager of a cooperative, or his duly authorized representative shall be submitted to the Revenue District Office which has jurisdiction over the principal place of business of the cooperative. Such Revenue District Office shall transmit the application for tax exemption within five (5) working days from the filing of the said letter-request accompanied by the required documentary requirements to the Legal Division of the Regional Office or The Assistant Commissioner, Legal Service, as the case may be. The letter-application shall state the type of the cooperative and the transactions engaged in with members/non-members. The following documents shall be attached to said application:

a) A certified true copy of the Certificate of Registration issued by the CDA under the new Cooperative Code;

b) A certified true copy of the Articles of Cooperation and By-laws of the Cooperative;

c) A certified true copy of the current Certificate of Good Standing from CDA, effective on the date of application. No application for exemption will be processed in the absence thereof;

d) A copy of the BIR Certificate of Registration of the Cooperative.

The application for exemption by a qualified cooperative is a pre-requisite for availment of tax exemption by said cooperative. The Certificate of Tax Exemption/Ruling shall be issued only after the determination by the BIR that the cooperative has complied with all the necessary documentary requirements for entitlement under RA 9520, as enumerated above.

The Certificate of Tax Exemption/Ruling must be signed by the BIR Regional Director/Assistant Commissioner, Legal Service, as the case may be, and shall be acted upon within forty-five (45) days from the date of submission of the complete documentary requirements, otherwise the BIR officer/employee concerned may be held liable under

Article 140 of RA 9520.

All duly registered cooperatives under RA 9520 shall apply for a Certificate of Tax Exemption/Ruling within sixty (60) days counted from the date of issuance of certificate of registration.

Exemption from taxes herein shall apply to the duly-registered cooperatives on the year the certificate of tax exemption/ruling was issued. However, for the initial issuance of the Certificate of Tax Exemption/Ruling under RA 9520, the effectivity of such Certificate of Tax Exemption/Ruling issued shall commence from the year RA 9520 took effect: Provided, That the cooperative has registered with the CDA as provided under Article 144 of RA 9520.

For applications for tax exemption not filed within the prescribed period, the late applicants shall be subjected to internal revenue taxes prior to the issuance of the Certificate of Tax Exemption/Ruling; however, they can apply for tax credit/refund of taxes previously paid from the date of registration with the CDA up to the issuance of the Certificate of Tax Exemption/Ruling, subject to the rules and procedures for processing tax credit/refund. The BIR shall act on the request for tax refund of taxes previously paid within one hundred twenty (120) days from submission of the complete documents in support of the application filed.

SECTION 14. VALIDITY OF CERTIFICATE OF TAX EXEMPTION/RULING. - The Certificate of Tax Exemption/Ruling shall be valid for a period of five (5) years from the date of issue or date of effectivity as provided under Section 13 hereof, and during such period that the Cooperative is in good standing as ascertained by the CDA on an annual basis.

A copy of the Certificate of Good Standing issued by the CDA to the cooperative shall, together with the Income Tax Return and Audited Financial Statements, be submitted to the BIR on or before the 15th day of the fourth month (April 15) following the close of the calendar year.

SECTION 15. RENEWAL OF CERTIFICATE OF TAX EXEMPTION/RULING. An application for renewal of Certificate of Tax Exemption shall be filed at least two (2) months prior to the

date of expiration of the existing Certificate of Tax Exemption/Ruling, and should be acted upon within the period prescribed inn Section 13 of this Joint Rules and Regulations. Such renewal of the Certificate of Tax Exemption/Ruling shall be for a period of five (5) years unless sooner revoked for cause.

The application for renewal of Certificate of Tax Exemption shall be accompanied by the following documents:

a) A certified true copy of the Certificate of Registration issued by the CDA under the new Cooperative Code;

b) A certified true copy of the Articles of Cooperation and By-laws of the Cooperative;

c) A certified true copy of the current Certificate of Good Standing from CDA, effective on the date of application. No application for exemption will be processed in the absence thereof or submission of an expired Certificate of Good Standing;

d) Certificate under oath by the Chairperson/General Manager whether the cooperative is transacting business with members only or both members and non-members, whichever is applicable;

e) In case the cooperative deals with members and non-members, records of transactions clearly showing which transactions correspond to members and non-members shall be submitted in the next renewal of the said tax certificate and not in the year of registration;

f) Certification under oath by the Chairperson or General Manager of the cooperative as to the amount of the accumulated reserves and that at least 25% of the net surplus is returned to the members in the form of interest on share capital and/or patronage refund;

g) Certification under oath of the list of members and the share capital contribution of each member; and

h) Latest financial statements of the immediately preceding year duly audited by an

independent certified public accountant.

Should any of the above requirements involve submission of voluminous documents and/or records on the part of the cooperative, soft copies of such documents/records may be submitted in lieu of printed material. Said soft copies shall be submitted in two (2) CD-R or DVD-R disks, using a format such as an Adobe Acrobat (pdf) file. The Revenue District Office shall check if the copies are identical, make distinguishing marks on both copies upon submission to ensure that the records are not tampered with/substituted, and return 1 copy to the submitting cooperative. In cases where the Revenue District Office has no CD-R/DVDR optical drives, the copies may be submitted on floppy disks/other media subject to the distinguishing marks as stated above.

SECTION 16. EXAMINATION OF BOOKS OF ACCOUNTS AND OTHER ACCOUNTING RECORDS OF THE COOPERATIVE. The books of accounts and accounting records of the cooperatives can be examined by the BIR for purposes of ascertaining compliance with the conditions under which they have been granted tax exemptions and their tax liabilities, if any, only after previous authorization by the CDA, which shall be released by the CDA or its Extension Office having jurisdiction over the cooperative, copy furnished the concerned cooperative, within twenty (20) days from receipt of the request from BIR.

The formal investigation shall commence upon the issuance of the letter of Authority/Letternotice by the Commissioner or his authorized representative and the authorization from the, CDA within the period prescribed above.

SECTION 17. COMPROMISE SETTLEMENT OF ANY TAX LIABILITY UNPAID BY COOPERATIVES. Pursuant to Article 144 (2) of RA 9520, all cooperatives previously registered under RA 6938 with unpaid/unsettled assessments as of the effectivity of RA 9520 shall be qualified to avail of the compromise settlement with BIR at a compromise rate equivalent to twenty percent (20%) of the basic tax assessed. Provided, That if the financial position of a cooperative demonstrates a clear inability to pay the assessed tax, Section 204 (A) (2) of the NIRC, as amended, shall apply and such shall be determined after having deducted all statutory funds required under RA 9520, such as the Reserve Fund, Education Fund, Community Development Fund and Optional Fund. Provided, further, That such

compromised amount may be paid in installments favorable to duly registered cooperative in cases of financial incapacity.

SECTION 18. TRANSITORY PROVISIONS. All duly-registered cooperatives pursuant to RA 6938 are deemed registered provided that said cooperatives must submit to the nearest CDA office a copy of their valid and effective Certificate of Registration, Articles of Cooperation, By-laws, and Audited Financial Statements within one (1) year from the effectivity of RA 9520. If a cooperative fails to follow this procedure, its registration will be cancelled motu propio.

After a cooperative complies with the requirements provided in the immediately preceding paragraph, and has been given a new certificate of registration, it can proceed with securing a Certificate of Tax Exemption/Ruling from the Revenue District Office having jurisdiction over the same following the procedure provided therein.

Applications for Tax Exemption pending with the BIR shall be acted upon by the concerned Regional Director having jurisdiction over the cooperative within forty-five (45) days from the effectivity of this Joint Rules and Regulations.

SECTION 19. REPEALING CLAUSE. - Revenue Regulations 13-2008, Revenue Regulations 62007 and Section 4.114-1 (B) and Section 4.109 (B) (1) of Revenue Regulations 16-2005 are hereby repealed.

All other revenue rulings, regulations, and other issuances, which are inconsistent with the provisions of this Joint Rules and Regulations, are hereby repealed or modified accordingly.

SECTION 20. SEPARABILITY CLAUSE. - Should any part of this Joint Rules and Regulations be held unconstitutional or invalid, the validity of the remaining provisions not affected thereby shall remain in force and effect.

SECTION 21. EFFECTIVITY. - This Joint Rules and Regulations shall take effect upon its approval.

(Original Signed ) MARGARITO B. TEVES Secretary of Finance

Recommending Approval:

(Original Signed ) HON. JOEL L. TAN-TORRES Commissioner of Internal Revenue

(Original Signed ) HON. LECIRA V. JUAREZ Chair, Cooperative Development Authority You might also like: BIR RMO NO. 76-2010: CERTIFICATE OF TAX EXEMPTION OF COOPERATIVES AND MONITORING THEREOF PHILIPPINE SUPREME COURT UPHOLDS TAX EXEMPTION OF COOPERATIVES COOPERATIVES TO SUBMIT LIST OF MEMBERS, THEIR AMOUNT OF CAPITAL CONTRIBUTION AND T.I.N. NUMBERS FOR BIR TAX EXEMPTION