Income Taxation

UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW Tax 1: Income Taxation Professor Serafin Salvador Semester, June 2012 PM Ambion Room Course Requirements: Recitation Final Exam First Thursdays, 2:00 5:00

PART I
A. INTRODUCTION 1. General Principles Sources of Tax Laws (Section 21, NIRC) 2. Constitution / Inherent Limitations (Sison vs. Commissioner, GR L-59 431 June 25, 1984) 3. History of the Philippine Income Tax Law Definition /Distinctions 4. Classification of Income Taxpayers B. TAX ON INDIVIDUALS 1. Kinds of Individual Tax Payers (Section 24, Section 25) 2. Definition of Each Kind of Tax Payer 3. Kinds of Income and Income Tax of Individuals a. Tax Formula b. Final Income Tax Interests, dividends, royalties, awards, capital gains on sale of shares, realty (RR 10-98, RR 8-98, - August 25, 1988) 4. Personal Additional and Special Exemptions; Amounts (Sec.35) a. Resident Citizens and Resident Aliens (Sec. 5, Sec.6 RR-2, RR 2-98, April 17,1998) b. Non Resident Citizens (RR 1-79 and RR 9-99, April 19, 1999 definition and requirements for information return) c. Non Resident Aliens Engaged in Business in the Philippines d. Personal and Additional Exemptions increased to P50,000.00 (regardless of marital status) and P25,000.00 per dependent child (maximum of 4)

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introduced by RA 9504 (July 6, 2008) implemented by RR 10 2008 (September 25, 2008) and RR 16-2008 (November 26, 2008) e. Senior Citizen Law, RA 7432, as amended by RA 9257 and implemented by RR 4-2006 (December 2, 2006) and RR 1-2007 (December 22, 2006) i. Constitutionality of Expanded Senior Citizen Act of 2003, as amended by RA 9994, Expanded Senior Citizen Act of 2010, implemented by RR 8-201, September 3, 2010 - Carlos Superdrug Corp vs. DSWD GR No. 166494, June 29, 2007

5. Definition of: a. Head of the Family (Sec 11 RR-2, RR 2-98) b. Dependent 6. Change of Status and Personal Exemptions 7. Premium Payments on Health and/or Hospitalization Insurance 8. Attrition Act of 2005 (RA 9355) Constitutionality questioned in Abakada Guro vs. Honorable Cesar Purisima (GR No. 166715, August 14, 2008)

PART II
C. TAX ON CORPORATIONS 1. Definition of Corporations a. Sec 22: b. Commissioner vs. Batangas Tayabas Bus. Co., 102 Phil 822 c. Ona vs. Commissioner, 45 SCRA 78 d. BIR Ruling 317-92, October 28, 1992 e. Obilles vs. CIR, L-681185, October 20, 1985
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2. Classification of Corporations and Taxes a. In general (Section 27 -28) as amended by RA 9337, effective July 1, 2005, implemented by RR 16-2005 (November 1, 2005), increase to 35% Corporate Income Tax i. ii. iii. Domestic Resident Non-Resident

b. Special Corporations
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Income Taxation

i.

Private Educational Institutions and Non-Profit Hospitals a. Constitution, Article XIV Section 4 (3) b. Finance Department Order 137-87 c. Department Order 149-95, November 24, 2995: Non-profit/ Non Stock Educational Institutions regarding exemption of interest from deposits and deposit substitute

ii. iii.

Non Resident Cinematographic Film Owner, Lessor or Distributor International Carriers: a. BOAC vs. Commissioner, L-65773-4 April 30, 1987 b. RR 15-2002, May 20, 2002, implements gross Philippine Billings Tax on International Carriers c. Air Canada vs. CIR, CTA EB No. 86, August 26, 2005 d. United Airline Inc. vs. CIR CTA EB No 297, January 15, 2008 e. South African Airways vs. CIR SC GR. No. 180356 February 16, 2010

iv. v. vi.

Non Resident Owner of Vessels Non Resident Lessor of Aircraft, Machineries, and other Equipment Foreign Currency Deposit System / Offshore Banking Units a. RR 10-76 b. RR 14-77 c. RR 10-98 August 25, 1998 d. RA 9294 Restores Tax Exemption of OBUs and FCDUs (approved April 28, 2004, effective May 21, 2004)

vii. viii.

Petroleum Service Contractor and Sub Contractor (PD 1334, PD 87) Enterprises Registered under Bases Convention and Development Act of 1992 and Philippine Economic Zone Act of 1995 a. Clarification of coverage of 5% Preferential Rate by RR 20-2002 October 14, 2002, as amended by RR 2-2005, February 8, 2005 amending RR 1-95 and RR 16-99

ix. x.

John Hay Peoples Alternative Coalition vs. Victor Lim Clark Development Tax Exemption: a. Coconut Oil Refiners Association, et. Al v. Ruben Torres, BCDA, et. Al., GR No. 132527, July 29, 2005
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xi.

RA 9400, Restores Privileges to Clark and John Hay; RA 9399 Grants Tax Amnesty to locators of Clark and John Hay

3. Kinds of Taxes (Domestic, Resident, Non-Resident) a. Final Income Tax b. Income Tax at the end of the year, quarterly income tax i. ii. CIR vs. Procter and Gamble, GR No. 66838 April 15, 1988 and en banc reconsideration GR No 66838 December 2, 1991 CIR vs. Wander Philippines GR No 68375 April 15, 1988

4. Branch Profit Remittance Tax Revised Memo Circular 55-80, Section 28 Par. A (5) 5. Minimum Corporate Income Tax - Section 27 (e) and Section 28 (A) [2], RR 998, August 25, 1998 6. Improperly Accumulated Earnings Tax a. Section 29, Rev. Regs. 2-2001 dated February 12, 2001, published March 11, 2001) b. Cyanamid Philippines, Inc. vs. CA, GR 108067, January 20, 2000) 7. Fringe Benefits Tax a. Section. 33 & RR 3-98, May 21, 1998 (RR 8- 2000, August 21, 2000, RR 102000, December 14, 2000, de minimis benefits, ACA, RATA) b. As amended by RR 5-2008, April 17, 2008 increases rice subsidy to P1,500 per month; clothing allowance to P4,000 as amended by RA 5-2011)

PART III
D. TAX ON CORPORATIONS (Section 28) 1. The Taxpayer 2. Exemption from Tax (Section 30) E. EXEMPT ENTITIES GENERAL CONSTRUED 1. Partnership (Section 26) PRACTICE EXEMPTION STRICTLY

Professional Partnership of Real Estate Brokers exempt from Income Tax (Ruling 294-88, July 5, 1988) 2. Co-ownership (Obillos, Jr. vs. Commissioner GR No. L-68118, October 29. 1985) 3. Section 30 Corporations

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a. Sections 23-35, RR 2 b. Sinco vs. Collector of Internal Revenue, No. 2229, May 20, 1955 100 Phil 127 4. RP US Income Tax Treaty (Signed October 1, 1976, effective January 1, 1983) 5. Omnibus Investment Code Income Tax Holiday Incentive, as amended by EO 226 6. Special Economic Zone Act of 1995 (RA 7916) 7. CIR vs. CA, CTA, & YMCA, GR No. 124043, October 14, 1998 8. Jewellery Industry Development Act of 1998 (RA 8502) as implemented by Revenue Regulations No. 1-99, January 6, 1999 9. Cooperative Code of the Philippines (RA 6983), as implemented by RR 202001, November 12, 2001 10. RA 9178, Barangay Micro Business Enterprises (BMBEs), Implemented by Department Order 17-04, April 20, 2004 11. Tourism Act of 2009 (RA 9593, June 2009) F. INCLUSIONS AND EXCLUSIONS FROM GROSS INCOME (Section 32, Section 39-60, RR 2) 1. Definition of Gross Income 2. Exclusions from Gross Income a. Sections 61-64, RR 2 b. RA 4917 c. RA 7641 An Act Granting Retirement Benefits to Private Sector Employees in Absence of Qualified Plan 3. Exclusion of 13th Month Pay a. RA 7833, January 1994 b. Rev. Reg. 2-95 c. Rev. Memo. Cir 36-94, December 14, 1994 d. RR 2-98 e. RA 7459 Inventors and Inventions Incentives Act of the Philippines 4. Exemption of Minimum Wage Earners a. RA 9504, July 6, 2008

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Income Taxation

b. RR 10-2008, Sept 25, 2008 G. ITEMS OF GROSS INCOME (Section 32) 1. Compensation for Personal Service a. In Money b. In Kind i. 649 Convenience of the Employer Rule Henderson vs. Collector 1 SCRA

ii. RR 2-98 and RR 3-98 H. INTEREST INCOME 1. Taxable 2. Not Taxable 3. Imputed Interest in Inter Company Loans / Advances (Section 59, Tax Code, ROM 63-99, July 1999) 4. See CIR vs. Filinvest GR No. 163653 and 167689, July 19, 2011 - No computation of interest increase on intercompany advances I. INCOME UNDER LEASE AGREEMENT (Section 49, RR 2) 1. Rent 2. Obligation of Lessor to Third Parties Assumed and Paid by Lessee 3. Advance Rental 4. Leasehold Improvements Options to Report Income for Right of Reversion of Improvements to Lessor: a. Option 1 Report Fair Market Value Upon Completion b. Option 2 Report Over Remaining Life of Lease Depreciated Value after Expiration of Lease Period

PART IV
J. DIVIDEND INCOME (Section 73, 250-256, RR 2) 1. Kinds of Dividends Recognized in Law a. Cash b. Property (BIR Ruling 108-93, May 7, 1993) c. Stock

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i. Comm vs. Manning GR No. L-28398, August 6, 1975, 66 SCRA 14 ii. Fischer vs. Trinidad, 43 Phil 973 2. Measure of Income in Cash and Property Dividend 3. Stock Dividend a. When Taxable i. Measure of Income

b. When Not Taxable 4. Liquidating Dividend a. BIR Ruling 322-87, October 19, 1987 b. Wise & Co., Incorporated vs. Meer GR No. L-48321, June 30, 1947 4. Essentially Equivalent to Distribution of Taxable Dividends a. CIR vs. CA & CTA & Anscor, GR No. 108576, January 20, 1999 K. INCOME FROM ANY SOURCE WHATEVER 1. Bad Debt Recovery (Section 50, RR 2) 2. Forgiveness of Indebtedness (Section 50, RR 2) 3. Tax Refunds (RMC 13-80, April 10, 1980) 4. Damage Recovery 5. Prizes and Winnings 6. Income from any Source whatever Gutierrez vs. Collector, 101 Phil 743

DEDUCTIONS
A. CLASSES OF DEDUCTIONS (Section 34) 1. Optional Standard Deduction for Individuals and Corporations 2. RA 9504 (July 6, 2008) implemented by RR 16-208 (November 26, 2008) initial year of implementation 3. Itemized Deductions B. EXPENSES IN GENERAL (Section 65-76, RR2) 1. Requisites for Deductibility a. Ordinary and Necessary

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b.

Visayan Cebu Terminal Co vs. Collector, CTA Case 128, June 29, 1957 affirmed by GR No. L-12798 May 30, 1960 108 Phil 320

2. Compensation for Personal Services a. Kuenzle & Streif, Inc v. CIR, L-12010, October 20, 1959) 3. Travelling / Transportation Expenses (RR 3-98) 4. Cost of Materials (Section 67. RR 2) 5. Repairs (Section 68. RR 2) 6. Expenses under Lease Agreements (Section 74. RR 2) 7. Expenses for Professionals (Section 69. RR 2) 8. Expenses for Farmers (Section 75. RR 2) 9. Entertainment Expenses (RR 3-98) 10. Expenses for Private Educational Institutions 11. Alhambra Cigar and Cigarette Manufacturing, Co. vs. Collector, GR No. L12026, May 29, 1959 12. Expense for Police Protection is Illegal Calanoc vs. Collector GR No. L-15922, November 29, 1961 13. Constructive Dividends (Section 70. RR 2) 14. Ceiling for Entertainment, Amusement and Recreational Expenses (RR 102002, July 10, 2002) 15. Types of Advertising Expenses: a. Expenses for Current Sale (Deductible) b. Expenses for Future Sale (To be amortized) c. CIR vs. General Foods, GR No L- 143672 April 24, 2003

PART V
C. INTEREST 1. Interest Deductible from Gross Income 2. Interest not Deductible from Gross Income 3. Prepaid Interest of Individual on Cash Method of Accounting a. Commissioner vs. Vda de Prieto, GR No. L-13912 September 30, 1960, 109 Phil 592

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4. Reduction of Interest Expense on Interest Income subjected to Final Tax under TRA of 1997 5. RR 13-2000, November 20, 2000 (requirement for deductibility of interest expense) D. TAXES (Section 80-82, RR2) 1. Deductible from Gross Income 2. Not Deductible from Gross Income 3. Meaning of the term Taxes 4. Tax Credits vs. Tax Deduction a. CIR vs. Lednicky, et al., GR No. L-18169 July 31, 1964 b. Discounts on Tax Credits - CIR vs. Bicolandia Drug Corp, GR No. 148083, July 21, 2006 5. Fines and Penalties a. Gutierrez vs. Collector, 14 SCRA 33 E. LOSSES (Section 93-101, RR2) 1. Kinds of Tax Payers and their losses 2. Completed transactions a. Fernandez Hermanos vs. CIR 29 SCRA 552 3. Special Rules on Losses a. Voluntary Removal of Buildings (Section 97, RR2)

b. Lose of Useful Value of Assets (Section 98, RR2) c. Shrinkage in Value of Stocks (Section 99, RR2) 4. Wagering Losses 5. Substantiation of Losses, Rev. Regs. 12-77 6. Foreign Exchange Losses, BIR Ruling 144-85 August 26, 1985, Inter-Bank Guiding Rate, Rev. Memo Circular 26-85 July 15, 1985 7. Abandonment Losses 8. Net-operating Loss Carry-Over (As Implemented by RR 14-2001, August 27, 2001) a. Three-Year Period

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b. No Substantial Change in Ownership (75% Rule) F. BAD DEBTS (Section 102-104, RR2) 1. Requirement for Deductibility Collector vs. Goodrich, 21 SCRA 1336 December 26, 1967 2. Tax Benefit Rule RR 5-99, March 10, 1999 3. Bad Debts between Related Parties - Section 30[b], NIRC 4. Requirements for Deductibility of Bad Debts Including Banks RR 5-99, March 10, 1999 5. Debt or Equity Philex Mining vs. CIR, GR No. 148187 April 16, 2008 G. DEPRECIATION (Section 105-115, RR2) 1. Depreciation Base Zamora vs. Collector, 8 SCRA 163 2. Methods of Depreciation a. Straight Line b. Declining Balance c. Sum of the Digits 3. Depreciation Rates 4. Bulletin F 5. Rev Regs, 19-86, Annex A H. I. DEPLETION (Rev. Regs. 5-76, April 2, 1976) PENSION TRUST (Section 118, RR2) 1. Two Kinds of Deductions for Employer 2. RA 9505, Personal Equity / Retirement Fund Act of 2008 (PERA) 3. RR V7-2011 (Effective January 1, 2o12) J. CHARITABLE AND OTHER CONTRIBUTIONS (BIR-NEDA Regs. 1-82) 1. Fully Deductible 2. Deductible, Subject to Limitations a. Corporation b. Individuals 3. Deductibility by Actually Paid or Made to Accredited Donee Institution RR 13-98 December 8, 1988, implementing Section 34(H), RA 8424
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K.

RESEARCH AND DEVELOPMENT EXPENSES (Section 34) a. When Paid or Incurred b. Amortized for 60 months

L.

IMPOSITION OF CEILINGS ON DEDUCTIONS BY THE SECRETARY OF FINANCE Section 34, last paragraph

M.

ADDITIONAL REQUIREMENT FOR DEDUCTIBILITY Section 34 [k], RMO 38-83, November 14, 1983 on Deficiency Withholding

N.

ITEMS NOT DEDUCTIBLE (Section 36, Section 119-122, RR2) Atlas Consolidated vs. CIR GR No. L- 26911, January 27, 1981

PART VI
SALE OR EXCHANGE OF PROPERTY A. CAPITAL ASSETS (Sections 39, 132-155, RR2)

1. Definition of Capital Asset (RR 7- 2003, December 27, 2002) Guidelines in Determining whether a real property is capital or ordinary asset 2. Definition of Ordinary Income a. Section 22 (2) b. Calasanz vs. Comm L-26284, October 10, 1986 3. Net Capital Gain, Net Capital loss 4. Ordinary Loss 5. Percentage Taken into account (Long Term Short Term) by Taxpayers other than a Corporation B. DETERMINATION OF GAIN OR LOSS FROM TRANSFER OF PROPERTY (Section 40, Section 136-143, RR 2) 1. Computation of Gain or Loss 2. Cost or basis for income tax purposes 3. Exchange of Property Tax Free Exchange a. Merger or Consolidation

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BIR Ruling 383-387 November 25, 1987, Commissioner vs. Vicente Rufino GR No. L-33665-68 _____27, 1987 b. Transfer of Substantially All the assets c. Transfer of Property for Shares of Stocks RMR 1-2001 dated November 29. 2001, prescribing the new conditions and requirements of tax-free exchange d. Administrative requirements in case of tax-free exchanges, RMO 32-201, November 29, 2001, prescribing the new conditions and requirement s of tax free exchange. e. De facto merger, RMR 1-2002, April 25, 2002 on tax consequences thereof under Section 40 (c)(2) and (6)(b) 4. Cost of basis in tax-free exchanges RR 18-2001, November 13, 2001 Guidelines on Monitoring, Basis of Property in Tax Free Exchanges; RMO 32-2001, November 28, 2001- Revised and Updated Requirements for Tax Free Exchanges. 5. Assumption of liability in Tax-Free Exchanges 6. Business Purpose Gregory vs. Helvering 293 US 465, 55 SCT 266 7. Rev. Regs 4-99 March 9, 1999- Payment of Capital Gains Tax and DST on an extra-judicial foreclosure of banks, etc C. D. LOSSES FROM WASH SALES OF STOCKS (Section 32, 131, RR2) EXEMPTION FROM CAPITAL GAINS TAX OF CERTAIN INDIVIDUALS FROM THE SALE OR EXCHANGE OF PRINCIPAL RESIDENCE Section 24 D(2) RR 13-99 as amended by RR 14-2000 dated November 20, 2000 E. TAX AMNESTY RA 9480 effective June 16, 2007, Implemented by Dept Order 29-07, August 15, 2007 (Expired May 5, 2008) TAXATION OF SHARES OF STOCKS RR 6-2008, April 22, 2008

F.

PART VII
A. SITUS OF TAXATION SITUS OF TAXATION (Section 42, Section 152-165, RR 2)

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1. Gross income from Sources within the Philippines BOAC vs. Commissioner GR No. 65773-74, April 20, 1987, 149 SCRA 395 2. Taxable Income from Sources within the Philippines (Comm vs. CTA and Smith Kline & Fresh Overseas L-54108, January 17, 1984 127 SCRA 9) Rev. Audit Memo Order 1-86 (income from constructive trading of multinationals) Rev. Regs. 16-86 RAMO 4-86 (allocation of head office expenses) RAMO 1-95 (audit guidelines on determination of income tax of branches of multinationals) 3. Gross Income from Sources without the Philippines 4. 5. 6. Income from sources partly within or without the Philippines Situs of Sales of Stocks in a domestic corporation Definition of Royalties (Philamlife, CA GR SP 31283 April 25, 1995, includes services as to investment, training and education accounting)

7. Effect of Turn Key Projects - Commissioner vs. Marubeni Corp, GR No. 137377M December 18, 2001 8. Guidelines for Computer Software Payment, Royalty, Services or Business Income Rev Memo Circular No. 44-2005 (September 1, 2005) B. ACCOUNTING PERIODS AND METHODS (Sections 43-50, 166-179, RR-2, Section 51-53 RR2) 1. General Rule 2. Accounting Period 3. Accounting Method (Cash Actual/Constructive or Accrual) a. Hybrid Method Consolidated Mines Inc. vs. CTA L -18844 August 29, 1974 b. Percentage by Completion Method Section 44 RR2, Section 48 of the Tax Code as amended by Tax Reform Act 4. Change of Accounting Period 5. Instalment Basis

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6. Allocation of Income and Deductions Yutivo Sons Hardware Co. vs. CIR, GR No. L-13203 January 28, 1961 1 SCRA 160 7. Net worth Method a. Perez vs. CTA, GR No. L-10507, May 30, 1958; 103 Phil 1167 b. CIR vs. Reyes GR No. L-11534, November 25, 1958 8. Tax Evasion vs. Tax Avoidance a. CIR vs. Benigno, GR No. 147188, September 14, 2004 C. ESTATES AND TRUSTS (Sections 60-66, Section 207-213, RR 2) 1. General Rule on Taxability Fiduciary or Beneficiary 2. Personal Exemption Allowed 3. Decedents estate administration Revocable Trusts 4. Income for Benefit of Guarantor

PART VIII
D. RETURNS AND PAYMENTS OF TAX 1. Individual Return (Section 51, 56) a. Who are required to file b. Those not required to file c. Where to file d. Where to Pay f. Capital Gains on Shares of Stocks and Real Estate

g. Quarterly Declaration of Income Tax (Section 74) h. RR 3-2002 March 22, 2002 (Substituted Filing of ITR of Salaried Individuals, as amended by RR 19-2002 October 11, 2002) i. RR 16-2002, October 11, 2002 Modes of Payment of Taxes through Banks 2. Corporate Regular Returns (Section 52, Section 53, Section 56) a. Quarterly Income Tax (Section 75) b. Final Adjustment Return (Section 76) c. When to File
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d. Where to File (Section 77) e. When to Pay f. Capital Gains on Shares of Stock

g. Return of Corporations Contemplating Dissolution/Reorganization i. Section 244, RR 2

2. BPI vs. Commissioner of Internal Revenue (CA GR SP 38304, April 14, 2000) E. WITHOLDING TAX 1. Final Withholding Tax at Source (Sec. 57) 2. Withholding of Creditable Tax: a. RR 2-98, RR 12-98 as amended by RR 6-2001 b. RR 12-2001 September 15, 2001, c. RR 14-2002 September 9, 2002, d. Fislyn vs. CA, CTA and CIR GR. No. 118498 & 124377 October 12, 1999 e. RR 30-2003, December 12, 2003 f. RR 3- 2004, March 12, 2004

g. RR 1-2006, Exemption of WHT of Minimum Wage Earners h. RR 4-2006, Implements RA 9257 New Senior Citizens Act i. RA 9504 Exempts Minimum Wage Earners

3. Return and Payment of Tax (Sec.58) 4. Tax Deemed Paid on Dividends a. CIR vs. PG [PMC], 160 SCRA 560 b. ^reversed in CIR vs PG[PMC] GR No. 66838 December 2, 1991, 204 SCRA 377 5. Withholding agent can file claim for refund a. CIR vs. Procter and Gamble, GR No. 66838 December 2, 1991, 204 SCRA 377 6. Withholding Tax on Dividends

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a. Marubeni Corp vs. CIR, L-76573 September 15, 2989 177 SCRA 501, reaffirmed March 7, 1990 Resolution 7. Withholding Tax on Royalties a. CIR vs. CA and SC Johnson & Sons, Inc. GR 127015, June 25, 1999 b. ^Motion for Reconsideration August 30, 1999 8. Rev. Memo Circular 46-2002, tax on royalty payments to US entity adopts most favored nation clause under RP-China Treaty effective January 1, 2002 9. Golden Arches Devt Corporation vs. CIR, CTA Case No. 6862 July 13, 2007Affirms Rev. Memo Circular 46-2002 on MFN Clause of 10% on royalties paid to US based on RP-China Treaty F. WITHHOLDING TAX ON WAGES Section 78-81, RR 2-98 as amended by RR 1-2006 December 29, 2005 compensation income of minimum wage earners exempt from withholding tax (but still exempted) WITHHOLDING TAX BY GOVERNMENT RR 2-98 E-COMMERCE TAXATION RMC No. 44-2005 September 1, 2005 Taxation of Software Payments RA 10021 dated March 5, 2010 Exchange of Information on Bank Deposit of Tax Evaders, Implemented by RR 10-2010 October 6, 2010 TAX TREATY (US-RP Tax Treaty)

G. H.

I. J.

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