THIRD DIVISION
February 10, 2016
G.R. No. 180402
COMMISSIONER OF INTERNAL REVENUE, Petitioner,
vs.
PILIPINAS SHELL PETROLEUM CORPORATION, Respondent.
D E C I S I O N
REYES, J.:
Assailed in the present Petition for Review on Certiorari1under Rule 45 of the Rules of Court is the Decision2 dated July 13, 2007 rendered by the Court of Tax Appeals (CTA) en banc in CTA EB Case No. 279, which affirmed the Decision3 dated November 28, 2006 of the CTA Second Division in CTA Case No. 6554, ordering the refund or issuance of a tax credit certificate in favor of respondent Pilipinas Shell Petroleum Corporation (Pilipinas Shell) for the excise taxes it paid on petroleum products sold to international carriers. Petitioner Commissioner of Internal Revenue (CIR) also assailed the CTA Resolution4 dated October 18, 2007 denying its motion for reconsideration.
Antecedent Facts
Pilipinas Shell sold and delivered petroleum products to various international carriers of the Philippines or foreign registry for their use outside the Philippines for the period of November 2000 to March 2001. A portion of these sales and deliveries was sourced by Pilipinas Shell from Petron Corporation (Petron) by virtue of a "loan or borrow agreement" between them. The excise taxes paid by Petron were passed on to Pilipinas Shell and the latter, in turn, sold these to international carriers net of excise taxes. The other portion was sourced by Pilipinas Shell from its tax-paid inventories.5
Pilipinas Shell subsequently filed two separate claims for the refund or credit of the excise taxes paid on the foregoing sales, totaling P49,058,733.09. Due to the inaction of the Bureau of Internal Revenue (BIR) on its claims, Pilipinas Shell decided to file a petition for review with the CTA.6
On November 28, 2006, the CTA Second Division rendered its Decision granting Pilipinas Shell's claim but at a reduced amount of P39,305,4 l 9.49.7 Said amount was computed based on Pilipinas Shell's sales and deliveries of petroleum products to international carriers sourced from its own tax-paid inventories. The claim for refund/credit of the excise taxes from the sales and deliveries coming from the portion sourced from Petron was disallowed by the CTA on the ground that Pilipinas Shell is not the proper party to claim the same.
The CIR filed a motion for reconsideration of the CTA decision but it was denied by the CTA in its Resolution8 dated February 23, 2007. Hence, it filed a petition for review before the CTA en banc.9
On July 13, 2007, the CTA en banc rendered the assailed decision dismissing the BIR's petition for lack of merit and affirming the assailed CT A decision and resolution. Its motion for reconsideration having been denied per assailed Resolution10 dated October 18, 2007, the CIR now comes to this Court on petition for review.
The arguments raised by the CIR are basically the same as those raised before the CTA Second Division and en banc, that is, Pilipinas Shell is not entitled to a refund/credit of the excise taxes paid on its sales and deliveries to international carriers for the following reasons: (1) excise taxes are levied on the manufacturer/producer prior to sale and delivery to international carriers and, regardless of its purchaser, said taxes must be shouldered by the manufacturer/producer or in this case, Pilipinas Shell; (2) the excise taxes paid by Pilipinas Shell do not constitute taxes erroneously paid as they are rightfully due from Pilipinas Shell as manufacturer/producer of the petroleum products sold to international carriers; (3) the intent of the law - Section 135 of the National Internal Revenue Code (NIRC) - is to exempt the international carriers from paying the excise taxes but not the manufacturer/producer; and (4) BIR Ruling No. 051-99, Revenue Regulations No. 5-2000 and other BIR issuances allowing tax refund/credit of excise taxes paid on petroleum products sold to tax-exempt entities or agencies should be nullified for being contrary to Sections 129, 130 and 148 of the NIRC.11
For its part, Pilipinas Shell argued, among others, that the excise tax exemption on petroleum products sold to international carriers is based on principles of international comity and to insist on its payment under the circumstances and suggest that it be recovered by the manufacturer as part of its selling price would be to render meaningless its purpose.12
Ruling of the Court
The Court need not unnecessarily belabor the arguments posed by the parties as these have already been squarely dealt with recently in G.R. No. 188497 entitled "Commissioner of Internal Revenue v. Pilipinas Shell Petroleum Corporation."13
In said case, the same respondent in this case, Pilipinas Shell, sought a refund/credit of the excise taxes allegedly paid erroneously on sales and deliveries of gas and fuel oils to various international carriers during the period of October to December 2001. As in the present case, Pilipinas Shell alleged that it was exempt from payment of excise taxes levied on its petroleum products sold and delivered to international carriers of foreign registry. The same petitioner in this case, the CIR, as represented by the Office of the Solicitor General, objected to the tax refund/credit granted by the CTA, also on the same ground raised in the present case - that the excise tax on petroleum products is levied on the manufacturer of the petroleum product regardless of its purchaser or buyer and that the grant of exemption under Section 135 of the NIRC simply means that the manufacturer cannot pass on to the international carrier-buyer the excise taxes it paid on its petroleum products.
Initially, the Court sustained CIR's arguments, reversed the CTA ruling and denied Pilipinas Shell's claim for tax refund/credit. In a Decision14 dated April 25, 2012, the Court concluded that Pilipinas Shell's locally manufactured petroleum products are subject to excise tax under Section 148 of the NIRC. The Court also ruled that the exemption from excise tax payment on petroleum products under Section 135(a) "merely allows the international carriers to purchase petroleum products without the excise tax component as an added cost in the price fixed by the manufacturers or distributors/sellers. Consequently, the oil companies which sold such petroleum products to international carriers are not entitled to a refund of excise taxes previously paid on the goods."15
In a Resolution16 dated February 19, 2014, however, the Court addressed the argument of Pilipinas Shell in its motions for reconsideration that Section 135(a) intended the tax exemption to apply to petroleum products at the point of production, among others. The Co mi found merit in Pilipinas Shell's motions for reconsideration and consequently directed the CIR to issue a tax credit certificate to Pilipinas Shell. The dispositive portion of the resolution reads:
WHEREFORE, the Court hereby resolves to:
(1) GRANT the original and supplemental motions for reconsideration filed by respondent Pilipinas Shell Petroleum Corporation; and
(2) AFFIRM the Decision dated March 25, 2009 and Resolution dated June 24, 2009 of the Court of Tax Appeals En Banc in CTA EB No. 415; and DIRECT petitioner Commissioner of Internal Revenue to refund or to issue a tax credit certificate to Pilipinas Shell Petroleum Corporation in the amount of P95,014,283.00 representing the excise taxes it paid on petroleum products sold to international carriers from October 2001 to June 2002.
SO ORDERED.17
In granting Pilipinas Shell's motions for reconsideration, the Court ruled:
We maintain that Section 135 (a), in fulfillment of international agreement and practice to exempt aviation fuel from excise tax and other impositions, prohibits the passing of the excise tax to international carriers who buys petroleum products from local manufacturers/sellers such as respondent. However, we agree that there is a need to reexamine the effect of denying the domestic manufacturers/sellers' claim for refund of the excise taxes they already paid on petroleum products sold to international carriers, and its serious implications on our Government's commitment to the goals and objectives of the Chicago Convention.
The Chicago Convention, which established the legal framework for international civil aviation, did not deal comprehensively with tax matters.1âwphi1 Article 24 (a) of the Convention simply provides that fuel and lubricating oils on board an aircraft of a Contracting State, on arrival in the territory of another Contracting State and retained on board on leaving the territory of that State, shall be exempt from customs duty, inspection fees or similar national or local duties and charges. Subsequently, the exemption of airlines from national taxes and customs duties on spare parts and fuel has become a standard element of bilateral air service agreements (ASAs) between individual countries.
The importance of exemption from aviation fuel tax was underscored in the following observation made by a British author in a paper assessing the debate on using tax to control aviation emissions and the obstacles to introducing excise duty on aviation fuel, thus:
x x x x
With the prospect of declining sales of aviation jet fuel sales to international carriers on account of major domestic oil companies' unwillingness to shoulder the burden of excise tax, or of petroleum products being sold to said carriers by local manufacturers or sellers at still high prices, the practice of "tankering" would not be discouraged. This scenario does not augur well for the Philippines' growing economy and the booming tourism industry. Worse, our Government would be risking retaliatory action under several bilateral agreements with various countries. Evidently, construction of the tax exemption provision in question should give primary consideration to its broad implications on our commitment under international agreements.
In view of the foregoing reasons, we find merit in respondent's motion for reconsideration.1âwphi1 We therefore hold that respondent, as the statutory taxpayer who is directly liable to pay the excise tax on its petroleum products, is entitled to a refund or credit of the excise taxes it paid for petroleum products sold to international carriers, the latter having been granted exemption from the payment of said excise tax under Sec.135(a) of the NIRC.18 (Citation omitted and emphases ours)
Under the doctrine of stare decisis,19 the Court must adhere to the principle of law laid down in Pilipinas Shell and apply the same in the present case, especially since the facts, issues, and even the parties involved are exactly identical. Thus, the Court hereby holds that Pilipinas Shell's claim for refund/tax credit must be granted pursuant to Pilipinas Shell, as its petroleum products sold to international carriers for the period of November 2000 to March 2001 are exempt from excise tax, these international carriers being exempt from payment of excise tax under Section 135(a) of the NIRC.
The Court further notes that during the pendency of this case, the Court, sitting en bane, rendered a decision in Chevron Philippines, Inc. v. Commissioner of Internal Revenue,20which likewise involved the refund of excise taxes paid on the importation of petroleum products. Applying the principle enunciated in Pilipinas Shell, the Court granted therein petitioner Chevron Philippines, Inc. 's motion for reconsideration and directed therein respondent CIR to refund the excise taxes paid on the petroleum products sold to Clark Development Corporation in the period from August 2007 to December 2007, or to issue a tax credit certificate. The Court stated that while the claims in Pilipinas Shell and Chevron were premised on different subsections of Section 135 of the NIRC, "the basic tax principle applicable was the same in both cases - that excise tax is a tax on property; hence, the exemption from the excise tax expressly granted under Section 135 of the NIRC must be construed in favor of the petroleum products on which the excise tax was initially imposed."21
Lastly, the Court cannot grant CIR's prayer that BIR Ruling No. 051-99, Revenue Regulations No. 5-2000 and other BIR issuances allowing tax refund/credit of excise taxes paid on petroleum products sold to tax-exempt entities or agencies be declared invalid. What the CIR wants is a wholesale invalidation of these issuances, which the Comi will not allow.
For one, Pilipinas Shell already ruled that petroleum products sold by local manufacturers/sellers to international carriers are exempt from the imposition of excise taxes as these international carriers enjoy exemption from payment of excise taxes under Section 135(a) of the NIRC. For another, the CIR failed to state with specificity the tenor of these issuances, except that these relate to the BIR's alleged grant of excise tax exemption on petroleum products, without even making an effort to present an official copy of these issuances, much less its contents. Moreover, the Court took upon itself the task of looking into these issuances and discovered that BIR Ruling No. 051-9922 actually involves the petroleum product withdrawals by Petron who is not even party to the present case. On the other hand, Revenue Regulations No. 5-200023 does not pertain solely to refund/credit of excise taxes on petroleum products but prescribes general regulations on the manner of the issuance of tax credit certificates and the conditions for their use, revalidation and transfer. For these reasons, the Court cannot sanction the CIR's "shotgun approach" and sustain its bare arguments without more.
WHEREFORE, the petition is DENIED.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M. PERALTA
Associate Justice |
JOSE PORTUGAL PEREZ
Associate Justice |
I dissent consistent with my opinion
in G.R. No. 210836 Chevron v CIR (Sept 2015)
MARVIC M.V.F. LEONEN*
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.
MARIA LOURDES P.A. SERENO
Chief Justice
Footnotes
* Additional member per Raffle dated October 20, 2014 vice Associate Justice Francis H. Jardeleza.
1 Rollo, pp. 11-39.
2 Penned by Presiding Justice Ernesto D. Acosta, with Associate Justices Juanita C. Castaneda, Jr., Lovell R. Bautista, Erlinda P. Uy, Caesar A. Casanova and Olga Palanca-Enriquez, concurring; id. at 42-50.
3 Penned by Associate Justice Juanita C. Castaneda, Jr. with Associate Justices Erlinda P. Uy and Olga Palanca-Enriquez concurring; id. at 57-77.
4 Id. at 52-55.
5 Id. at43.
6 Id.
7 Id. at 75.
8 Id. at 81-85.
9 Id. at 44.
10 Id. at 52-55.
11 Id. at 17-34.
12 Id. at 125-130.
13 April 25, 2012, 671 SCRA 241.
14 Id.
15 Id. at 263.
16 Rollo, pp. 258-267.
17 Id. at 266.
18 Id. at 265-266.
19 J.R.A. Philippines, Inc. v. CIR, 647 Phil. 33 (2010).
20 G.R. No. 210836, September 1, 2015.
21 The CIR's motion for reconsideration of the Court's Decision dated September I, 2015 in Chevron case was denied with finality in a Resolution dated November 10, 2015.
22 <ftp://ftp.bir.gov.ph/webadmin/pdfs/rulings/rulings 1999 digest.pdf> (visited July 24, 2012). A summary of BIR Ruling No. 051-99 dated April 19, 1999 reads:
The petroleum product withdrawals by Petron Corporation are for use by entities or agencies exempt from excise tax under Section 135 of the Tax Code of 1997, and that the petroleum products are to be delivered to the tax-exempt entities within ten (10) days (for the period of January 1, 1998 to June 30, 1998); within five (5) days (for the period July 1, 1998 to December 31, 1998) from the date of removal of such products; and before removal from the place of production of such products (from January 1, 1999 and thereafter). Accordingly, Petron is allowed to claim a tax credit/refund of the excise taxes paid on petroleum products sold to tax-exempt entities or agencies, subject to the two-year prescriptive period under Section 229 of the Tax Code of 1997. (Emphasis ours)
23 <http://www.bir.gov.ph/lumangweb/rr2000.html#rr5-2000> (visited July 24, 2012). A summary of Revenue Regulations No. 5-2000 states:
REVENUE REGULATIONS No. 5-2000 issued August 15, 2000 prescribes the regulations governing the manner of the issuance of Tax Credit Certificates (TCCs) and the conditions for their use, revalidation and transfer. A TCC may be used by the grantee or his assignee in the payment of his direct internal revenue tax liability. However, in no case shall the TCC be used in the payment of the following: 1) payment or remittance for any kind of withholding tax; 2) payment arising from the availment of tax amnesty declared under a legislative enactment; 3) payment of deposits on withdrawal of excisable articles; 4) payment of taxes not administered or collected by the BIR; and 5) payment of compromise penalty. Moreover, in no case shall a tax refund or TCC be given resulting from availment of incentives granted pursuant to special laws for which no actual tax payment was made.
BIR-issued TCCs may be transferred in favor of an assignee subject only to the following conditions: I) the transfer of a valid TCC must be with prior approval of the Commissioner or his duly authorized representative; 2) the transfer should be limited to one transfer only; and 3) the transferee shall use the TCC assigned to him strictly in payment of his direct internal revenue tax liability and in no case shall the same be available for conversion to cash in his hands. Any TCC issued which remains unutilized after five (5) years from the date of issue shall, unless revalidated before the end of the fifth year, be considered invalid. This means that the TCC shall not be allowed for use in payment of any of the taxpayer's internal revenue tax liability nor allowed to be transferred and the unutilized amount thereof shall revert to the General Fund of the National Government. The revalidated TCC shall be valid for a period of five years from the date of issue. Any request for conversion into cash refund of unutilized tax credits may be allowed during the validity period of the TCC, subject to conditions specified in the Revenue Regulations. Any TCC issued prior to January 1, 1998, may be submitted for revalidation by the holder within six (6) months prior to the end of the fifth (5th) year. No revalidated TCC shall be issued unless the Commissioner's duly authorized representative has certified that the applicant taxpayer has no outstanding tax liability. If the holder has any outstanding tax liability, said liability should be applied first against the TCC sought to be revalidated through the issuance ofa Tax Debit Memo.
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