COMMISSIONER OF G.R. No.

160949
INTERNAL REVENUE,
Petitioner, Present:

CARPIO MORALES, Chairperson,

BRION,
- versus - BERSAMIN,
VILLARAMA, JR., and
SERENO, JJ.
PL MANAGEMENT
INTERNATIONAL Promulgated:
PHILIPPINES, INC.,
Respondent. April 4, 2011
x-----------------------------------------------------------------------------------------x

DECISION

BERSAMIN, J.:

How may the respondent taxpayer still recover its unutilized creditable
withholding tax for taxable year 1997 after its written claim for refund was not acted
upon by the petitioner, whose inaction was upheld by the Court of Tax Appeals
(CTA) on the ground of the claim for tax refund being already barred by
prescription?

Nature of the Case

The inaction of petitioner Commissioner of Internal Revenue (Commissioner)

on the respondents written claim for tax refund or tax credit impelled the latter to
commence judicial action for that purpose in the CTA. However, the CTA denied
the claim on December 10, 2001 for being brought beyond two years from the
accrual of the claim.

On appeal, the Court of Appeals (CA) reversed the CTAs denial through the
decision promulgated in C.A.-G.R. Sp. No. 68461 on November 28, 2002, and
directed the petitioner to refund the unutilized creditable withholding tax to the
respondent.[1]
 Hence, the petitioner appeals.

Antecedents

In 1997, the respondent, a Philippine corporation, earned an income

of P24,000,000.00 from its professional services rendered to UEM-MARA
Philippines Corporation (UMPC), from which income UMPC
[2]
withheld P1,200,000.00 as the respondents withholding agent.

In its 1997 income tax return (ITR) filed on April 13, 1998, the respondent
reported a net loss of P983,037.00, but expressly signified that it had a creditable
withholding tax of P1,200,000.00 for taxable year 1997 to be claimed as tax credit
in taxable year 1998.[3]

On April 13, 1999, the respondent submitted its ITR for taxable year 1998, in
which it declared a net loss of P2,772,043.00. Due to its net-loss position, the
respondent was unable to claim the P1,200,000.00 as tax credit.

On April 12, 2000, the respondent filed with the petitioner a written claim for
the refund of the P1,200,000.00 unutilized creditable withholding tax for taxable
year 1997.[4] However, the petitioner did not act on the claim.

Ruling of the CTA

Due to the petitioners inaction, the respondent filed a petition for review in
the CTA (CTA Case No. 6107) on April 14, 2000, thereby commencing its judicial
action.

On December 10, 2001, the CTA denied the respondents claim on the ground
of prescription,[5] to wit:

Records reveal that Petitioner filed its Annual Income Tax Return for
taxable year 1997 on April 13, 1998 (Exhibit A) and its claim for refund
 with the BIR on April 12, 2000 (Exhibit D and No. 2 of the Statement of
Admitted Facts and Issues). Several days thereafter, or on April 14, 2000,
Petitioner filed an appeal with this Court.

The aforementioned facts clearly show that the judicial claim for
refund via this Petition for Review was already filed beyond the two-year
prescriptive period mandated by Sections 204 (C) and 229 of the Tax Code
xxx
xxx

As earlier mentioned, Petitioner filed its Annual ITR on April 13,

1998 and filed its judicial claim for refund only on April 14, 2000 which
is beyond the two-year period earlier discussed. The aforequoted Sections
204 (C) and 229 of the Tax Code mandates that both the administrative
and judicial claims for refund must be filed within the two-year period,
otherwise the taxpayer's cause of action shall be barred by
prescription. Unfortunately, this lapse on the part of Petitioner proved
fatal to its claim.
xxx

WHEREFORE, in view of the foregoing the Petition for Review is

hereby DENIED due to prescription.

Ruling of the CA

Aggrieved, the respondent appealed to the CA, assailing the correctness of the
CTAs denial of its judicial claim for refund on the ground of bar by prescription.

As earlier mentioned, the CA promulgated its decision on November 28,

2002, holding that the two-year prescriptive period, which was not jurisdictional
(citing Oral and Dental College v. Court of Tax Appeal[6]and Commissioner of
Internal Revenue v. Philippine American Life Insurance Company[7]), might be
suspended for reasons of equity.[8]The CA thus disposed as follows:

WHEREFORE, the petition is partly GRANTED and the assailed

CTA Decision partly ANNULLED. Respondent Commissioner of
Internal Revenue is hereby ordered to refund to petitioner PL Management
International Phils., Inc., the amount of P1,200,000.00 representing its
unutilized creditable withholding tax in taxable year 1997.[9]
 The CA rejected the petitioners motion for reconsideration.[10]

Issues

In this appeal, the petitioner insists that:

I. THE COURT OF APPEALS ERRED IN HOLDING THAT THE

TWO-YEAR PRESCRIPTIVE PERIOD UNDER SECTION 229
OF THE TAX CODE IS NOT JURISDICTIONAL, THUS THE
CLAIM FOR REFUND OF RESPONDENT IS SUSPENDED
FOR REASONS OF EQUITY.

II. THE COURT OF APPEALS ERRED IN HOLDING THAT

RESPONDENTS JUDICIAL RIGHT TO CLAIM FOR REFUND
BROUGHT BEFORE THE COURT OF APPEALS ON APRIL
14, 2000 WAS ONE DAY LATE ONLY.[11]

The petitioner argues that the decision of the CA suspending the running of the two-
year period set by Section 229 of the National Internal Revenue Code of 1997 (NIRC
of 1997) on ground of equity was erroneous and had no legal basis; that equity could
not supplant or replace a clear mandate of a law that was still in force and effect; that
a claim for a tax refund or tax credit, being in the nature of a tax exemption to be
treated as in derogation of sovereign authority, must be construed in strictissimi
juris against the taxpayer; that the respondents two-year prescriptive period under
Section 229 of the NIRC of 1997 commenced to run on April 13, 1998, the date it
filed its ITR for taxable year 1997; that by reckoning the period from April 13, 1998,
the respondent had only until April 12, 2000 within which to commence its judicial
action for refund with the CTA, the year 2000 being a leap year; that its filing of the
judicial action on April 14, 2000 was already tardy; and that the factual findings of
the CTA, being supported by substantial evidence, should be accorded the highest
respect.
In its comment, the respondent counters that it filed its judicial action for refund
within the statutory two-year period because the correct reckoning started from April
15, 1998, the last day for the filing of the ITR for taxable year 1997; that the two-
year prescriptive period was also not jurisdictional and might be relaxed on equitable
reasons; and that a disallowance of its claim for refund would result in the unjust
enrichment of the Government at its expense.
Ruling of the Court

We reverse and set aside the decision of the CA to the extent that it orders the
petitioner to refund to the respondent the P1,200,000.00 representing the unutilized
creditable withholding tax in taxable year 1997, but permit the respondent to apply
that amount as tax credit in succeeding taxable years until fully exhausted.

Section 76 of the NIRC of 1997 provides:

Section 76. Final Adjustment Return. - Every corporation liable to

tax under Section 27 shall file a final adjustment return covering the total
taxable income for the preceding calendar or fiscal year. If the sum of the
quarterly tax payments made during the said taxable year is not equal to
the total tax due on the entire taxable income of that year the corporation
shall either:

(A) Pay the balance of tax still due; or

(B) Carry over the excess credit; or

(C) Be credited or refunded with the excess amount paid, as the case
may be.

In case the corporation is entitled to a refund of the excess estimated

quarterly income taxes paid, the refundable amount shown on its final
adjustment return may be credited against the estimated quarterly income
tax liabilities for the taxable quarters of the succeeding taxable
years. Once the option to carry-over and apply the excess quarterly
income tax against income tax due for the taxable quarters of the
succeeding taxable years has been made, such option shall be
considered irrevocable for that taxable period and no application for
tax refund or issuance of a tax credit certificate shall be allowed
therefor.
The predecessor provision of Section 76 of the NIRC of 1997 is Section 79 of the
NIRC of 1985, which provides:

Section 79. Final Adjustment Return. Every corporation liable to tax

under Section 24 shall file a final adjustment return covering the total net
income for the preceding calendar or fiscal year. If the sum of the quarterly
tax payments made during the said taxable year is not equal to the total
tax due on the entire taxable net income of that year the corporation shall
either:

(a) Pay the excess tax still due; or

(b) Be refunded the excess amount paid, as the case may be.

In case the corporation is entitled to a refund of the excess estimated

quarterly income taxes-paid, the refundable amount shown on its final
adjustment return may be credited against the estimated quarterly income
tax liabilities for the taxable quarters of the succeeding taxable year.

As can be seen, Congress added a sentence to Section 76 of the NIRC of 1997

in order to lay down the irrevocability rule, to wit:

xxx Once the option to carry-over and apply the excess quarterly
income tax against income tax due for the taxable quarters of the
succeeding taxable years has been made, such option shall be considered
irrevocable for that taxable period and no application for tax refund or
issuance of a tax credit certificate shall be allowed therefor.

In Philam Asset Management, Inc. v. Commissioner of Internal Revenue,[12] the

Court expounds on the two alternative options of a corporate taxpayer whose total
quarterly income tax payments exceed its tax liability, and on how the choice of one
option precludes the other, viz:

The first option is relatively simple. Any tax on income that is paid
in excess of the amount due the government may be refunded, provided
that a taxpayer properly applies for the refund.
 The second option works by applying the refundable amount, as
shown on the FAR of a given taxable year, against the estimated quarterly
income tax liabilities of the succeeding taxable year.

These two options under Section 76 are alternative in

nature. The choice of one precludes the other. Indeed, in Philippine
Bank of Communications v. Commissioner of Internal Revenue, the
Court ruled that a corporation must signify its intention whether to
request a tax refund or claim a tax credit by marking the
corresponding option box provided in the FAR. While a taxpayer is
required to mark its choice in the form provided by the BIR, this
requirement is only for the purpose of facilitating tax collection.

One cannot get a tax refund and a tax credit at the same time for
the same excess income taxes paid. xxx

In Commissioner of Internal Revenue v. Bank of the Philippine Islands,[13] the

Court, citing the aforequoted pronouncement in Philam Asset Management,
Inc., points out that Section 76 of the NIRC of 1997 is clear and unequivocal in
providing that the carry-over option, once actually or constructively chosen by a
corporate taxpayer, becomes irrevocable. The Court explains:

Hence, the controlling factor for the operation of the irrevocability

rule is that the taxpayer chose an option; and once it had already done so,
it could no longer make another one. Consequently, after the taxpayer opts
to carry-over its excess tax credit to the following taxable period, the
question of whether or not it actually gets to apply said tax credit is
irrelevant. Section 76 of the NIRC of 1997 is explicit in stating that once
the option to carry over has been made, no application for tax refund or
issuance of a tax credit certificate shall be allowed therefor.
The last sentence of Section 76 of the NIRC of 1997 reads: Once the
option to carry-over and apply the excess quarterly income tax against
income tax due for the taxable quarters of the succeeding taxable years
has been made, such option shall be considered irrevocable for that taxable
period and no application for tax refund or issuance of a tax credit
certificate shall be allowed therefor. The phrase for that taxable period
merely identifies the excess income tax, subject of the option, by referring
to the taxable period when it was acquired by the taxpayer. In the present
case, the excess income tax credit, which BPI opted to carry over, was
 acquired by the said bank during the taxable year 1998. The option of BPI
to carry over its 1998 excess income tax credit is irrevocable; it cannot
later on opt to apply for a refund of the very same 1998 excess income tax
credit.

The Court of Appeals mistakenly understood the phrase for that taxable
period as a prescriptive period for the irrevocability rule. This would mean
that since the tax credit in this case was acquired in 1998, and BPI opted
to carry it over to 1999, then the irrevocability of the option to carry over
expired by the end of 1999, leaving BPI free to again take another option
as regards its 1998 excess income tax credit. This construal effectively
renders nugatory the irrevocability rule. The evident intent of the
legislature, in adding the last sentence to Section 76 of the NIRC of 1997,
is to keep the taxpayer from flip-flopping on its options, and avoid
confusion and complication as regards said taxpayer's excess tax credit.
The interpretation of the Court of Appeals only delays the flip-flopping to
the end of each succeeding taxable period.

The Court similarly disagrees in the declaration of the Court of

Appeals that to deny the claim for refund of BPI, because of the
irrevocability rule, would be tantamount to unjust enrichment on the part
of the government. The Court addressed the very same argument
in Philam, where it elucidated that there would be no unjust enrichment in
the event of denial of the claim for refund under such circumstances,
because there would be no forfeiture of any amount in favor of the
government. The amount being claimed as a refund would remain in
the account of the taxpayer until utilized in succeeding taxable years,
as provided in Section 76 of the NIRC of 1997. It is worthy to note
that unlike the option for refund of excess income tax, which
prescribes after two years from the filing of the FAR, there is no
prescriptive period for the carrying over of the same. Therefore, the
excess income tax credit of BPI, which it acquired in 1998 and opted
to carry over, may be repeatedly carried over to succeeding taxable
years, i.e., to 1999, 2000, 2001, and so on and so forth, until actually
applied or credited to a tax liability of BPI.

Inasmuch as the respondent already opted to carry over its unutilized

creditable withholding tax of P1,200,000.00 to taxable year 1998, the carry-over
could no longer be converted into a claim for tax refund because of the irrevocability
rule provided in Section 76 of the NIRC of 1997. Thereby, the respondent became
barred from claiming the refund.
However, in view of it irrevocable choice, the respondent remained entitled
to utilize that amount of P1,200,000.00 as tax credit in succeeding taxable years
until fully exhausted. In this regard, prescription did not bar it from applying the
amount as tax credit considering that there was no prescriptive period for the
carrying over of the amount as tax credit in subsequent taxable years.[14]

The foregoing result has rendered unnecessary any discussion of the assigned
errors committed by the CA.

WHEREFORE, we reverse and set aside the decision dated November 28,
2002 promulgated in C.A.-G.R. Sp. No. 68461 by the Court of Appeals, and declare
that PL Management International Phils., Inc. is not entitled to the refund of the
unutilized creditable withholding tax of P1,200,000.00 on account of the
irrevocability rule provided in Section 76 of the National Internal Revenue Code of
1997.

We rule that PL Management International Phils., Inc. may still use the
creditable withholding tax of P1,200,000.00 as tax credit in succeeding taxable years
until fully exhausted.

No pronouncement on costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:
 CONCHITA CARPIO MORALES
Associate Justice
Chairperson

ARTURO D. BRION MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

MARIA LOURDES P.A. SERENO

Associate Justice

ATTESTATION

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 Courts Division.

CONCHITA CARPIO MORALES

Associate Justice
Chairperson
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons 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 Courts Division.

RENATO C. CORONA
Chief Justice