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BIR Issuances

Taxpayers required to file returns through eBIRForms

Revenue Regulations No. 4 – 2023
Issued on May 4, 2023

This amends Section 2 of Revenue Regulations No. 9-2016, further expanding the coverage of taxpayers mandated to file tax returns through Electronic Bureau of Internal Revenue Forms (eBlRForms). The mandatory coverage applies to the following non-Electronic Filing System (eFPS) filers:

1. Accredited Tax Agents/Practitioners and all its client-taxpayers;
2. Accredited Printers of Principal and Supplementary Receipts/Invoices;
3. One-Time Transaction (ONETT) taxpayers who are classified as real estate dealers/developers; those who are considered as habitually engaged in the sale of real property and regular taxpayers already covered by eBIRForms. Thus, taxpayers who are filing BIR Form No. 1706, 1707, 1800, 1801 and 2000-0T (for BIR Form No. 1706 only) are excluded in the mandatory coverage from using the eBIRForms;
4. Those who shall file a “No Payment Return”;
5. Government-Owned-or-Controlled Corporations (GOCCs);
6. Local Government Units (LGUs), including Barangays; and
7. Cooperatives registered with National Electrification Administration (NEA) and Local Water Utilities Administration (LWUA).

Requirements in Availing the Income Tax Exemption of Foreign-sourced Dividends received by a Domestic Corporation

Revenue Regulations No. 5- 2023
Issued on May 5, 2023

This updated the requirements for the availment of the income tax exemption of foreign-sourced dividends received by domestic corporations provided for by Section 5 of Revenue Regulations No. 5-2021.

In general, foreign-sourced dividends received by domestic corporations are subject to Income Tax. However, the same shall be exempt if all of the following conditions concur:

1. The dividends actually received or remitted into the Philippines are reinvested in the business operations of the domestic corporation within the next taxable year from the time the foreign-sourced dividends were received or remitted;
2. The dividends received shall be used to fund the working capital requirements, capital expenditures, dividend payments, investment in domestic subsidiaries and infrastructure project; and
3. The domestic corporation holds directly at least 20% in value of the outstanding shares of the foreign corporation and has held the shareholdings uninterruptedly for a minimum of 2 years at the time of the dividends distribution, or during the entire existence of the corporation in case the foreign corporation has been in existence for less than 2 years at the time of dividends distribution.

Absent any one of the above conditions, the foreign-sourced dividends shall be considered as taxable income of the Domestic Corporation in the year of actual receipt or remittance, subject to surcharge, interest, and penalties, as applicable.

For this purpose, in order to avail of the income tax exemption, the Domestic Corporation shall:

1. Attach a “Sworn Statement”, following the template provided in Annex A of RR No. 5-2023, to the Annual Income Tax Return (AITR) pertaining to the taxable year in which the foreign-sourced dividends were received; and
2. Attach to the AITR pertaining to the year immediately following the year of receipt of the foreign-sourced dividends a “Sworn Declaration” using template provided in Annex B of RR No. 5-2023.

Compliance with the above requirements is sufficient in order to avail of the Income Tax exemption. However, in case of partial or non-utilization of the foreign-sourced dividends, the domestic corporation shall pay the corresponding Income Tax due thereon, inclusive of surcharge, interest and penalties, by amending the AITR filed for the particular period. In the event that the amendment is already prohibited due to existence of audit, the Income Tax shall be paid using a payment form (BIR Form 0605).

No credit or deduction under Section 34(C) of the Tax Code shall be allowed for any taxes of foreign countries paid or incurred by the domestic corporation in relation to the exempt foreign-sourced dividends. Any taxes of foreign countries paid or incurred by the domestic corporation in relation to the exempt foreign-sourced dividends shall be disregarded in computing the limitations under Section 34(C)(4) of the Tax Code.

Optional Filing and Payment of Monthly VAT Returns

Revenue Memorandum Circular No. 52-2023
Issued on May 10, 2023

VAT-registered persons may continue to file and pay their VAT returns and taxes on a monthly basis and still use BIR Form No.2550M. There shall be no prescribed deadline for the monthly filing of BIR Form No. 2550M.

Availability of Revised BIR Form No. 2550Q [Quarterly Value-Added Tax (VAT) Return] January 2023 (ENCS)

Revenue Memorandum Circular No. 59-2023
Issued on May 19, 2023

This Circular is issued to prescribe the newly revised BIR Form No. 2550Q (Quarterly VAT Return) January 2023 (ENCS) version, and the corresponding guidelines thereon in line with the provisions of the TRAIN Law. However, the Form is not yet available in the eFPS and eBIRForms. Thus, eFPS/eBIRForms filers shall continue to use BIR Form No. 2550Q in the eFPS and in Offline eBIRForms Package v7.9.4. in filing and paying the VAT payable/due. Once the return is available in the eFPS and in the Offline eBIRForms Package, a separate revenue issuance shall be released to announce its availability.

Manual filers shall download and print the PDF version of the revised BIR Form 2550Q which is available in the BIR website (www.bir.gov.ph) under the BIR Forms – VAT/Percentage Tax Returns Section.

Procedures in the Processing of Taxpayer’s request for Stamping of Electronically filed ITRs/AITRs thru eBIRForms

Revenue Memorandum Circular No. 61-2023
Issued on May 24, 2023

Pursuant to RMC No. 61-2023, which provides guidelines in the filing of annual income tax returns (AITRs) for calendar year 2022 as well as payment of taxes due thereon until April 17, 2023, “No Payment AITRs” shall be filed electronically through eBIRForms. Thus, taxpayers no longer need to file “No Payment AITRs” manually. However, the RDOs may still manually stamp printed electronically filed AITRs for requesting taxpayers who can provide a letter request, with attached supporting documents, stating the need for their respective returns to be manually stamped “Received” by the BIR, as a requirement or proof of filing and payment of their taxes here in the Philippines, or for whatever legal purpose it may serve.

Proper Time of Remittance of Withholding Taxes by National Government Agencies and Instrumentalities, LGUs, and GOCCs

Revenue Memorandum Circular No. 47-2023
Issued on May 3, 2023

As provided by RR No. 12-2001, amending Section 2.57.4 of RR No. 2-98, the obligation of the payor to deduct and withhold the tax arises at the time an income payment is paid or payable (meaning, the obligation became due, demandable or legally enforceable), or the income payment is accrued or recorded as an expense or asset, whichever is applicable, in the payor’s books, whichever comes first. Provided however, that where income is not yet paid or payable but the same has been recorded as an expense or asset, whichever is applicable, in the payor’s books, the obligation to withhold shall arise in the last month of the return period in which the same is claimed as an expense or amortized for tax purposes.

This RMC reiterates the above proper time of remittance of Withholding Taxes by National Government Agencies (NGAs) and instrumentalities, Local Government Units (LGUs), and Government Owned and Controlled Corporations (GOCCs) due to reports of the continued practice of deduction and subsequent remittance of corresponding withholding taxes due from expenditures when it was actually paid, despite earlier recognition and recording in the books of accounts of such expenditures as accruals.

It was noted that accrual basis of accounting was already prescribed by the Commission on Audit in the Government Accounting Manuals for NGAs and LGUs since 2002, pursuant to the Philippine Public Sector Accounting Standards that are harmonized with the International Public Sector Accounting Standards. Hence, there has been a departure from the cash basis of accounting on which the withholding and remittance of tax is erroneously grounded.

Use of the Electronic One-Time Transactions (eONETT) System in the filing and payment of ONETT related returns and taxes

Revenue Memorandum Circular No. 56-2023
Issued on May 19, 2023

The BIR encourages all taxpayers to use the Electronic One-Time Transaction (eONETT) System. This system allows taxpayers to apply for ONETT Computation Sheet (OCS) and electronic Certificate Authorizing Registration (eCar) as well as filing of returns and payment of taxes, online. Taxpayers who intend to transact their ONETT online thru the eONETT System shall be required to register or sign up for an account. The Taxpayer User Guide/ Job Aid is also available and can be downloaded in the log-in page of the System, which is accessible through eServices in the BIR website: https://eonett.bir.gov.ph/.

Additional Features and Functionalities of Online Application for Registration Information Updates and other Registration-related Transactions through Online Registration and Update System

Revenue Memorandum Circular No. 48-2023
Issued on May 5, 2023

The following are the additional features and functionalities related to registration information available through Online Registration and Update System (ORUS) starting April 28, 2023:

Taxpayers who already have an existing ORUS account may access and avail the online registration updates and other functionalities by logging-in to the system. Taxpayers who do not have an ORUS account and opt to use the said online registration-related facilities are required to enroll or create an account in ORUS following the guidelines prescribed under RMC No. 122-2022.

Clarifications on the Policies and Guidelines on the Issuance and Validity of TIN Card and COR

Revenue Memorandum Circular No. 58-2023
Issued on May 19, 2023

This circular was issued to prescribe and clarify the policies and guidelines on the issuance of Taxpayer Identification Number (TIN) Card and Certificate of Registration (COR).

1. TIN CARD
   • The old TIN card (yellow-orange in color) is no longer being issued by the BIR. It was replaced with a new design TIN card (green), which is an accountable form of the BIR. In spite of the new TIN card, previously issued old TIN cards are still VALID and do not expire.
   • The request for TIN card issuance shall be submitted to the Revenue District Office (RDO) where the taxpayer is registered. The generation of TIN cards can be made only in the RDO where the taxpayer is registered.
   • Application for TIN card requires the personal appearance of the concerned taxpayer. No Authorized representative shall be allowed to secure a TIN card on behalf of the taxpayer. In emergency or valid cases, a Special Power of Attorney (SPA) including a government-issued ID of the representative and taxpayer, stating the reason for non-appearance and relationship with the authorized representative (e.g. related within the first degree of consanguinity and affinity, with proof presented) shall be presented to the Revenue District Officer or Assistant Revenue District Officer, for approval.
2. Certificate of Registration
   • COR printed in old template/yellow-orange color is still valid and does not expire, as long as the information printed therein are still up to date. Replacement of COR shall only be made if there are updates or changes in the information printed on the face of COR.
   • The electronic COR generated by the Philippine Business Hub (PBH) and ORUS printed by the taxpayers is valid and does not require signature. The electronic COR bears a QR Code that can be validated online when scanned.
   • The COR or electronic COR issued by the ORUS or PBH is required to be posted conspicuously in the place of business.

Availability of the enhanced BIR Registration Forms relative to the implementation of Ease of Doing Business and Efficient Government Service Delivery Act of 2018

Revenue Memorandum Circular No. 60-2023
Issued on May 23, 2023

This Circular is issued to inform taxpayers and others concerned on the availability of the following enhanced BIR Registration Forms (July 2021 Version):

1. BIR Form No. 1901 – Application for Registration for Self-Employed (Single Proprietor/ Professional), Mixed Income Individuals, Non-Resident Alien Engaged in Trade/Business, Estate and Trust;
2. BIR Form No. 1902 – Application for Registration for Individuals Earning Purely Compensation Income (Local and Alien Employee);
3. BIR Form No. 1903 – Application for Registration For Corporations, Partnerships (Taxable/ Non-Taxable), Including Government Agencies, Cooperatives and Associations;
4. BIR Form No. 1904 – Application for Registration for Taxpayer and Person Registering under E.O.98 (Securing a TIN to be able to transact with any government office) and Others; and
5. BIR Form No. 1905 – Application for Registration Information Update/Correction/Cancellation.

Availability of BIR Form Nos. 1604-C, 1604-E, 1604-F and 0620 in eFPS

Revenue Memorandum Circular No. 62-2023
Issued on May 29, 2023

This Circular is issued to announce the availability of the following forms in eFPS that are mandated to be used by eFPS filers effective immediately:

Revocation of BIR Ruling Nos. 038-2001 and 046-1995 on Clark Development Corporation’s status as a Registered Business Enterprise entitled to Fiscal and Non-Fiscal Incentives

Revenue Memorandum Circular No. 63-2023
Issued on May 31, 2023

The Circular notifies the revocation of BIR Ruling Nos. 038-2001 dated September 10, 2001, and 046-1995 dated March 3, 1995, which ruled that CDC is considered as a registered business enterprise (RBE) entitled to the same privileges as other enterprises operating within the Clark Special Economic Zone (CSEZ) such as the 5% preferential tax rate based on gross income earned, in lieu of local and national internal revenue taxes.

While it is true that CDC is a private corporation registered and performing activities that are proprietary in nature, the fact still remains that it is a GOCC entrusted with the responsibility of carrying out regulatory functions.

As such, it does not stand on equal footing with RBEs operating within CSEZ, thereby precluding it from claiming the same privileges available to them. Unless there is a law that expressly states otherwise, CDC must be treated on par with other GOCCs regardless of its formation or the nature of its operations. Consequently, its income shall be subject to income tax provided in Section 27(C) of the Tax Code.

Assuming arguendo that CDC is correctly treated as an RBE, the BIR’s position remains unchanged. Under the Corporate Recovery and Tax Incentives for Enterprises (CREATE) Act, an entity may either be classified as an investment promotion agency (IPA) (a government entity in charge of promoting investments, granting and administering fiscal and/or non-fiscal incentives, and overseeing the operation of the different economic zones and freeports in accordance with their respective special laws), or a RBE (those organized and existing under Philippines laws and registered with an IPA and granted incentives to the extent of their approved registered project or activity under the Strategic Investment Priority Plan (SIPP), but never both.

Thus, since CDC is classified as an IPA as explicitly stated in Section 293(H) of the Tax Code, as amended by the CREATE Act, CDC cannot avail of the fiscal and non-fiscal incentives exclusively granted to RBEs.

Entitlement of Economic Zone Developers and Operators to VAT Zero-rating on Local Purchases of Goods and Services directly and exclusively used in the Registered Project or Activity

Revenue Memorandum Circular No. 53-2023
Issued on May 11, 2023

The Circular clarified that those engaged in development and operation of economic zones, and industrial parks and buildings for exporters, being activities in support of exporters, may be classified as export enterprises pursuant to Board of Investments (BOI) Memorandum Circular (MC) No. 2022-003 dated June 1, 2022, and therefore, also entitled to VAT incentives under the CREATE Act.

Per the BOI MC, this covers development and operation of economic zones, and industrial parks within export or Freeport zones with integrated facilities for export-oriented enterprises. Economic zones and industrial parks shall have infrastructure such as paved roads, power system, water supply, drainage system, sewerage treatment facilities, pollution control systems, communication facilities, and other infrastructure/ facilities needed for the operation of exporter located therein.

This also covers the development and management of new buildings located outside NCR, declared as economic zone or within export or Freeport zones, with a minimum contiguous land area of 10,000 square meters with the following features:

• High-speed fiber-optic communication backbone and high speed international gateway facility or wide-area network (WAN); or any high-speed data telecommunication system that may become available in the future;
• Clean, uninterruptible power supply;
• Computer security and building monitoring and maintenance systems (e.g. computer firewalls, encryption technology, fluctuation controls, etc.); and
• Any other equipment as may be determined by the Board of the concerned IPAs.

At least 70% of the leasable/ saleable areas should be dedicated to exporters which means exporting at least 70% of its total production/ services for IPA RBEs, or 60% of its outputs for non-IPA RBEs.

Revenue arising from clients/ tenants engaged in activities that are not allowed pursuant to the definition of a RBE under Section 293(M) of the CREATE Act will not be entitled to the ITH incentive.

Phased Development of an economic zone or an industrial park may be allowed, provided the whole project is completed within five (5) years unless otherwise approved by the concerned IPA.

Supplemental Guidelines and Procedures in the Conduct of Enforcement Operations, Forfeiture and Prosecution of cases relative to Unlicensed/ Unregistered articles subject to Excise Tax

Revenue Memorandum Circular No. 16-2023
Issued on May 17, 2023

This provides supplemental procedures and guidelines on the implementation of RMO No. 40-2022 to ensure effective conduct of apprehension/ seizure and detention of unlicensed/ unregistered articles. It is issued (1) to provide clarification and prescribe additional procedures and guidelines to be observed in the conduct of enforcement operations, forfeiture and prosecution of cases; (2) prescribe uniform documentation and reportorial requirements necessary in the conduct of enforcement operations; and (3) amend certain provisions of RMO No. 40-2022.

This RMO specifically discusses the following:

 

• Conduct of Surveillance Activity
• Conduct of Enforcement Action Based on Surveillance Activity
• Inventory Stock-Taking/Physical Count
• Issuance of Apprehension Slip
• Procedures after Inventory Count and Issuance of Apprehension Slip
• Turnover of Apprehended Items to the BIR Storage Facility
• Issuance of Collection Letter
• Issuance of Subpoena Duces Tecum
• Guidelines in Handling Payment / Offer of Payment
• Filing of Criminal Complaint
• Disposition of Evidence/ Apprehended Items
• Documentation of Destruction Activity
• Storage Retention Preservation of Reports, Photos and Videos of all the activities

Availability of the Revised BIR Form No. 2200-T [Excise Tax Return for Tobacco, Heated Tobacco, Vapor and Novel Tobacco Products] August 2022 (ENCS)

Revenue Memorandum Circular No. 54-2023
Issued on May 16, 2023

This Circular was issued to prescribe the newly revised BIR Form No. 2200-T (Excise Tax Return for Tobacco, Heated Tobacco, Vapor and Novel Tobacco Products). The revised manual return is already available in the BIR website (www.bir.gov.ph) under the BIR Forms – Excise Tax Return Section. However, the Form is not yet available in eFPS and eBIRForms. Thus, eFPS/ eBIRForms filers shall continue to use BIR Form No. 2200-T in the eFPS and in Offline eBIRForms Package v7.9.4. in filing and paying the Excise Tax due. Once the return is available in the eFPS and in the Offline eBIRForms Package, a separate revenue issuance shall be released to announce its availability.

Updates on the Floor Price of Cigarettes, Heated Tobacco, Vaporized Nicotine and Non-Nicotine Products and Reiteration on the Imposition of Penalties, Sanctions and Liabilities for Noncompliance

Revenue Memorandum Circular No. 49-2023
Issued on May 5, 2023

Below are the updated floor prices for the following tobacco products:

1. 1. Cigarettes

      Packaging	Content per Packaging	Production Cost/ Total Landed Cost	Excise Tax	VAT	Total Tax	Floor Price
      Pack	20 sticks	₱ 42.32	₱ 60.00	₱ 12.28	₱ 72.28	₱ 114.60
      Ream	10 packs	₱ 423.20	₱ 600.00	₱ 122.80	₱ 722.80	₱ 1,146.00

   2. Heated Tobacco Products

      Packaging	Content per Packaging	Production Cost/ Total Landed Cost	Excise Tax	VAT	Total Tax	Floor Price
      Pack	20 sticks	₱ 75.00	₱ 32.50	₱ 12.90	₱ 45.40	₱ 120.40

   3. Vapor Products
      C.1. Nicotine Salt or Salt Nicotine

      Packaging	Pack/Fill	Content per Packaging	Production Cost/Total Landed Cost	Excise Tax	VAT	Total Tax	Floor Price
      Pod	1	2ml	₱ 74.57	₱ 104.00	₱ 21.43	₱ 125.43	₱ 200.00
      Pod	1	4ml	₱ 108.94	₱ 208.00	₱ 38.03	₱ 246.03	₱ 354.97

      C.2. Conventional ‘Freebase’ or ‘Classic’ Nicotine

      Packaging	Pack/Fill	Content per Packaging	Production Cost/Total Landed Cost	Excise Tax	VAT	Total Tax	Floor Price
      Bottle	1	10ml	₱ 100.00	₱ 60.00	₱ 19.20	₱ 79.20	₱ 179.20
      Bottle	1	30ml	₱ 180.00	₱ 180.00	₱ 43.20	₱ 223.20	₱ 403.20

Selling of tobacco products at a price lower than the combined Excise Tax and Value-Added Taxes imposed under the law shall be prohibited. The seller of such products shall be punished with the corresponding fine under the pertinent provisions of the Tax Code, to wit:

In addition to the above penalties, provisions of Sections 263 and 265 of the Tax Code, as amended, providing the penalties for unlawful possession or removal of articles subject to excise tax without payment of the tax, and offenses relating to stamps, respectively, shall likewise apply.

Pursuant to the Joint Administrative Order (JAO) No. 21-01, Series of 2022, E-Commerce platforms, e-marketplaces, and the like, shall be treated, and shall be held liable, in the same manner as online sellers, merchants, and e-retailers, when the latter commits any violation of the laws implemented by these rules.

Updated List of Registered Manufacturers/ Importers/ Exporters with the corresponding Product Brands/ Variants of Cigarettes, Heated Tobacco Products, Vapor Products and Novel Tobacco Products and Integration of the Requirements for Compliance Purposes

Revenue Memorandum Circular No. 57-2023
Issued on May 19, 2023

 

The BIR published the updated list of registered manufacturers/ importers/ exporters with corresponding product brands/ variants of cigarettes, heated tobacco products, vapor products and novel tobacco as of May 15, 2023, arranged per the following categories:

1. Manufacturers of Locally Produced Cigarettes (Domestic);
2. Manufacturers of Locally Produced Cigarettes (Export) ;
3. PEZA-Registered Manufacturers of Cigarettes;
4. Importers of Cigarettes;
5. Manufacturers of Vapor Products;
6. Importers of Vapor Products;
7. Importers of Heated Tobacco Products; and
8. Importers of Novel Tobacco Products.

Newly registered manufacturer/ importer of cigarettes, heated tobacco products, vapor products, and novel tobacco products after May 15, 2023, shall be included in the updated list of such entities in the BIR Website. As required under RR Nos. 7-2021 and 14-2022, manufacturers/ importers/ exporters of mentioned products must comply with the requisite registration of brands and variants thereof within six (6) months from the date of release of this Circular to avoid penalties for noncompliance.

Furthermore, the products must comply with the requirements on Graphic Health Warning and the affixing of the BIR Tax Stamps except for vapor products and novel tobacco products for which Internal Revenue Stamps Integrated System (IRSIS) stamps are not yet available in the system.

SEC ISSUANCES

UGuidelines on the Application for Allocation of Securities Identifiers for Financial Instruments

SEC Memorandum Circular No. 7-2023
Issued on May 2, 2023

 

The SEC, being the sole issuer of International Securities Identification Number (ISIN), Classification of Financial Instruments (CFI) and Financial Instrument Short Name (FISN) codes in the Philippines, acting in its capacity as the National Numbering Agency (NNA) for the Republic of the Philippines and a partner affiliate of Association of National Numbering Agencies (ANNA), issued guidelines on the application for allocation of ISIN, CFI, and FISN. These are forms of securities identifiers developed by the industry, for the industry, under rigorous processes established by the ISO that has quickly become the common language of financial instruments and processing around the world. The ISO-identifiers have had a significant impact in reducing the time, cost, and risk of cross-border transactions.

The financial instruments covered by the Guidelines on security identifiers include, among others, those provided under the Securities Regulation Code (SRC) Rule 3.1.20:

1. Shares of stocks, bonds, government securities, commercial papers, debentures, notes evidences of indebtedness, asset-backed securities;
2. Investment contracts, certificates of interest or participation in a profit-sharing agreement, certifies of deposit for a future subscription;
3. Fractional undivided interest in oil, gas or other mineral rights;
4. Derivatives like option and warrants;
5. Certificates of assignments, certificates of participation, trust certificates, voting trust certificates or similar instruments;
6. Other instruments as may in the future be determined by the SEC; and
7. Tokenized or digital form of any of the foregoing.

The securities registered pursuant to Section 8 and 12 of the SRC are qualified for allocation of the security identifiers once the Registration Statements are rendered effective by the SEC. Those securities which are exempt from registration under Sections 9 and 10 of the SRC are also qualified for allocation of securities identifiers. In such case, the issuer or financial intermediary may submit the request for allocation of securities identifiers together with the pertinent Offering Circular or Offering Memorandum.

The filing fee per set of securities identifiers is ₱1,500.

FIRB ISSUANCES

Clarifications on the Submission of the Annual Tax Incentives Report (ATIR) and Annual Benefits Report (ABR) for the Taxable Year 2022

FIRB Advisory 010A -2023
Issued on May 10, 2023

 

The following are the noteworthy matters clarified in relation to the submission of the ATIR and ABR:

• The submission of the ATIR and ABR through the online submission module of the Fiscal Incentives Registration and Monitoring (“FIRMS”) is strongly encouraged but is not mandatory. The IPAs/ other government agencies (OGAs) and the FIRB (through the FIRB Secretariat) will continue to accept ATIR and ABR submissions via email.
• Once the IPA has downloaded or reviewed the submitted ATIR and ABR through the online of FIRMS, the RBE’s re-upload function will be disabled. RBEs that intend to resubmit their ATIR and ABR, but with a disabled re-upload function, should contact their respective IPAs/OGAs and request for a renewed upload access.
• The deadline for submission of ATIR and ABR is on May 17, 2023. The CREATE IRR is clear that the deadline for the filing of ATIR and ABR is from the statutory deadline for filing tax returns and payment of taxes. If the company is still under audit by May 17, 2023, then the submission of an initial ATIR and ABR by the deadline will be accepted and recognized as compliance. Following the completion of the audit, the company may submit amended reports, without incurring the penalty for late submission.
• The CREATE Act does not impose any deadlines on amendments to the ATIR and ABR beyond the deadline. Nonetheless, it should be the responsibility of the RBE/ other registered entities (ORE) to update their respective IPA/OGA in case there are changes in their ATIR and ABR. These datasets may be matched against the records of the BIR, SEC, and other relevant regulatory bodies, for validation purposes.

Clarificatory guidance on the applicability of the Certificate of Entitlement to Tax Incentives (CETI) template for projects registered under the Renewable Energy (RE) Act of 2008

FIRB Advisory 009 -2023
Issued on May 8, 2023

This Advisory clarifies the applicability of the CETI for projects registered under RA No. 9513 or the RE Act of 2008.

The CETI template for RE projects shall be deemed equivalent to the Certificate of ITH Entitlement (CoE) issued by the Board of Investments (BOI), evidencing the registered RE project’s entitlement to the income tax holiday (ITH) incentive, pursuant to BIR Revenue Regulations No. 7-2022 and Revenue Memorandum Circular No. 17-2023.

For RE projects entitled to the preferential 10% corporate income tax rate, the existing documentary requirements pursuant to the rules and regulations issued by the BIR, the DOE, and the BOI, among other relevant government stakeholders, shall continue to apply.

This advisory also clarifies that the CETI shall not be required to support the RE projects’ eligibility for the preferential corporate income tax rate of 10%

This Advisory reiterates that only the FIRB has the exclusive power to grant incentives to qualified projects or activities with investment capital of more than PhP 1 Billion.

IPAs, under a delegated authority, are only authorized to approve tax incentives to qualified projects or activities with investment capital of PhP 1 Billion and below.

IPA’s approval of tax incentives to projects or activities beyond its delegated authority will subject the said RBEs to assessment of all tax incentives availed including interest and penalties by the BIR and/or BOC.

Guidelines for the Suspension or Withdrawal of Tax Incentives and Cancellation of COR of RBEs pursuant to the Tax Code, as amended by the CREATE Act

FIRB Administrative Order No. 004-2023
Issued on May 2, 2023

 

Supplementary guidelines were issued for the suspension or withdrawal of tax incentives or cancellation of the COR granted by IPAs or the FIRB for registered projects or activities of RBEs found to have committed material violations.

A violation, whether individually or in aggregate with all other violations, shall be considered “material” when the act/s or omission/s of the RBE would render the project or activity unqualified vis-à-vis the requirements under the SIPP, the terms and conditions of its registration, or the requirements for the availment or grant of incentives, and requirements under relevant laws.

Grounds for suspension or withdrawal of tax incentives, or cancellation of COR

The violations that may be ground for suspension or withdrawal of tax incentives may include, but not limited to, the following:

1. Non-compliance with the agreed performance target commitments or violation of any of the conditions imposed in the grant of fiscal or tax incentives;
2. Misrepresentation of information or false statement made by the RBE in any document submitted in connection with its registration with the concerned IPA or for the purpose of availing incentives under the Tax Code, as amended by the CREATE Act;
3. Non-submission by the RBE of reportorial requirements such as, but not limited to, annual financial statements or the ATIR/ ABR under Section 305 of the Tax Code, as amended, or Rule 11, Section 2 of the CREATE Act IRR;
4. Violation of any provisions under Titles VI (Excise Taxes on Certain Goods) and X (Statutory Offenses and Penalties) of the Tax Code, as amended, or any statute, or a finding of a violation of the relevant issuances of the BIR or BOC, as recommended by them to the FIRB;
5. Violation of the relevant rules and/or issuances of the concerned IPA, as recommended by the concerned IPA to the FIRB; and
6. Any such violation deemed material by the concerned IPA or the FIRB.

The COR of an RBE may, after due process, be cancelled involuntarily by the concerned IPA or by the FIRB for any of the following violations:

1. Material misrepresentation or false statements made by the RBE in any documents submitted in connection with its registration with the concerned IPA. Misrepresentation shall be material if such misrepresentation refers to a false statement to which the concerned IPA would attach importance in deciding whether or not the misrepresenting RBE would be eligible for registration;
2. Unjustified noncompliance, for the third time, with the filing and reportorial requirements under these Guidelines; and
3. Any other circumstance that warrants the cancellation of a COR as may be deemed proper and necessary by the concerned IPA or the FIRB; Provided, that the concerned IPA may also cancel the COR based on same grounds for the suspension or withdrawal of tax incentives.

The Proceedings

Upon the initiation of proceedings, a Show Cause Order shall be issued requiring the RBE to file its Justification within fifteen (15) calendar days from receipt of the order. The RBE may also file its Justification with the concerned IPA in case the RBE anticipates that any such performance commitment stated in its COR and terms and conditions may be violated for circumstances beyond its control.

The decision of the IPA or FIRB, as the case may be, on the suspension or withdrawal of incentives or cancellation of the COR shall be without prejudice to the payment of fines under Section 308 of the Tax Code, as amended.

Remedy

An RBE adversely affected by the decision of the FIRB may file a Motion for Reconsideration or appeal following and subject to the rules and terms under FIRB Memorandum Circular No. 001-22 or the Guidelines of Motions for Reconsideration under Title XIII of the Tax Code, as amended by the CREATE Act.

Effect of suspension or withdrawal of tax incentives

In case of a suspension or withdrawal order which has become final and executory, the

IPA or FIRB, as the case may be, shall endorse to the BIR or BOC such order for the assessment of the appropriate amount of taxes and duties that need to be paid by the RBE whose incentives have been suspended or withdrawn, reckoned from the first day of the taxable period in which the RBE committed the violation.

The suspension of tax incentives shall cover only the taxable period/s within which the violation was committed, and does not automatically disqualify an RBE’s registered project or activity from the issuance, in its favor, of the Certificate of Entitlement to Incentives (CETI), VAT certification, or Certificate of Authority to Import (CAI) pertaining to a taxable period prior to or subsequent to the period covered by such suspension.

An RBE whose tax incentives have been withdrawn shall have its fiscal incentives revoked corresponding to the taxable period the RBE committed the violation and to subsequent taxable periods therefrom, but shall not affect the availment of non–fiscal incentives, if any, corresponding to the project/ activity.

Effect of cancellation of COR

In case of cancellation of COR, the project or activity of the RBE shall cease to be registered and shall be required to pay all appropriate and necessary taxes, fees, and penalties, if applicable, from the time the cancellation order has become final and executory.

The deregistered project or activity shall not be allowed to register for a new set of incentives unless the same is for a new project or activity or a qualified expansion.

Prima Facie Validity of the CETI, VAT Certification, or CAI issued in favor of an RBE

In the absence of a final order of withdrawal or suspension of tax incentives or the cancellation of the COR, the BOC or BIR shall recognize the validity of the CETI, VAT certification/endorsement, or CAI issued in favor of an RBE as evidence that the RBE has complied with all the imposed performance target metrics and terms and conditions.

An order issued by the IPA or FIRB, as the case may be, suspending or withdrawing the tax incentives, or cancelling the COR of an RBE shall be final and executory upon the lapse of the period to file a Motion for Reconsideration or appeal and no Motion for Reconsideration is filed or no appeal is perfected within such period.

BOC ISSUANCES

Guidelines on the issuance of Proof of Origin, granting of Preferential Tariff Treatment, and verification procedures under the Regional Comprehensive Economic (RCEP) Agreement

Customs Memorandum Order No. 12 – 2023
Dated May 26, 2023

Originating goods shall be eligible for RCEP preferential tariff treatment at the time of importation, pursuant to Executive Order No. 25, series of 2023. The applicable RCEP preferential tariff rate shall be determined based on the RCEP Country of Origin of the originating goods.

The BOC shall only accept Certificate of Origin (CO) Form RCEP and Declaration of Origin (DO) issued by an approved exporter as proof of origin upon effectivity of this order. The DO issued by an exporter or producer shall only be accepted when the Philippines implements subparagraph 1(c), Article 3.16 of the RCEP Agreement. The back-to-back Proof of Origin issued by the intermediate party shall only be accepted by BOC if it was based on a CO Form RCEP or DO issued by an approved exporter.

If the RCEP preferential tariff rate is higher than the applied rate at the time of importation, the importer shall be allowed to apply for refund of any excess duties and taxes paid for originating goods covered by a proof of origin in accordance with CMO No. 25-2020.

If the importer did not make a claim for preferential tariff treatment under the RCEP Agreement at the time of importation, the importer shall be allowed to apply for a refund of any excess duties and taxes paid as the result of a good not having been granted preferential tariff treatment upon submission of the necessary documents.

This Order took effect on June 2, 2023.