June 7, 2006

VAT RULING NO. 007-06

Baniqued & Baniqued

Suite 803, 8/F Jollibee Centre
San Miguel Avenue
Ortigas Center
Pasig City

Attention: Atty. Carlos G. Baniqued

and
Atty. Terence Conrad H. Bello

Gentlemen :

This refers to your letter dated December 20, 2005 stating that your clients,
SHELL PHILIPPINES EXPLORATION B.V. (SPEX), SHELL PHILIPPINES LLC (SPL),
CHEVRON MALAMPAYA LLC (CHEVRON) and PNOC EXPLORATION CORPORATION
(PNOC-EC) (collectively referred to as the Service Contractor or Consortium) are
service contractors of the Government of the Republic of the Philippines, through the
Department of Energy (DOE) under Service Contract 38 (SC 38) for the exploration,
development and utilization of petroleum in the Camago-Malampaya eld located in
offshore Northwest Palawan (the Malampaya Project) executed by the parties on
December 11, 1990, where SC 38 was signed by then President Corazon C. Aquino for
and on behalf of the Republic of the Philippines; that on April 30, 1998 following the
discovery and appraisal of natural gas reserves in the San Martin and Malampaya
reservoirs, the Service Contractor entered into a Joint Declaration of Commerciality
with the Government of the Republic of the Philippines establishing production areas
under the Service Contract covering these reservoirs (the Joint Declaration):
(1) On the basis of (i) the Joint Declaration, (ii) the gas sale and purchase
agreements entered into with various buyers, i.e., First Gas Power
Corporation (FGPC), FGP Corp. (FGP) and National Power Corporation
(NPC), in the course of 1997 and 1998, and (iii) certain other agreements
with the Government of the Republic of the Philippines, such buyers and
other third parties relating to such agreements, the Service Contractor
undertook to develop the Malampaya reservoir for the supply of natural
gas to the Santa Rita power project (for FGPC), the San Lorenzo power
project (for FGP) and the Iligan power project (for NPC), all located on the
island of Luzon.
(2) Currently, the natural gas produced by the Service Contractor under SC 38
supplies approximately greater than 40 percent of the energy requirement
of the Luzon power grid.
that SC 38 was entered into by the Service Contractor and the Republic of the
Philippines pursuant to Presidential Decree (PD) No. 87; that in accordance with the
terms of a PD 87 service contract, such as SC 38 the service contractor furnishes
services, technology, and nancing for the conduct of petroleum operations; that the
proceeds of the sale of the petroleum produced under the contract shall then be the
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 source of funds for payment of a stipulated service fee and the operating expenses and
other costs due the service contractor; that pursuant to the terms and provisions of SC
38, the Service Contractor undertakes and executes petroleum operations under the full
control and supervision of the DOE; that as de ned under SC 38, petroleum operations
include the handling and sale, whether for export or domestic consumption, of
petroleum so obtained from the contract area; that one of the rights of the Service
Contractor, as stipulated under Section 6.2. of SC 38, is exemption from all taxes,
except income tax; that the tax exemption under Section 6.2. of SC 38 is based on
Section 12 (a) of PD 87, which was, and continues to be, the governing law when the
parties entered into SC 38; that as expressly provided in Section 12 (a) of PD 87, one of
the rights granted to a petroleum service contractor is exemption from all taxes except
income tax; that on December 1, 2005, PNOC-EC received a letter dated November 30,
2005 from the Revenue District O cer of Revenue District O ce (RDO) No. 44; that the
following day, SPEX, SPL and Chevron received identical letters dated December 2,
2005 from the Revenue District O cer of RDO No. 53 (the December 1 and 2, 2005
letters are collectively referred to as the Letter-Notices); that on the basis of a letter-
opinion dated November 25, 2005 from the Regional Director of Revenue Region No. 8,
Makati, the Letter-Notices informed the Consortium that their "sale of natural gas in
whatever form or state from the Malampaya Project is now subject to value-added tax
pursuant to R.A. No. 9337, as implemented by Revenue Regulations No. 16-2005; and
thus, the Letter-Notices advised the Consortium to commence ling and paying VAT on
or before December 20, 2005 to avoid the imposition of penalties and interests.
In connection therewith, you now respectfully submit that the Service
Contractor's sales of natural gas remain exempt from VAT pursuant to Section 12(a) of
PD No. 87 and Section 6.2 of SC 38.
In reply thereto, please be informed that this O ce has previously con rmed in
BIR Ruling No. 036-01 dated August 20, 2001 that, except for income tax, a service
contractor under SC 38 is exempt from all taxes for which it is directly liable, including
exemption from VAT, pursuant to Section 2(a) of PD No. 87 and Section 6.2. of SC 38.
CcaDHT

On the other hand, Section 24 of R.A. No. 9337 provides —

"Sec. 24. Repealing Clause. — The following laws or provisions of laws
are hereby repealed and the persons and/or transactions affected herein are
made subject to the value-added tax subject to the provisions of Title IV of the
National Internal Revenue Code of 1997, as amended:
"(a) Section 13 of R.A. No. 6395 on the exemption from
value-added tax of National Power Corporation (NPC);
"(b) Section 6, fth paragraph of R.A. No. 9136 on the zero
VAT rate imposed on the sales of generated power by generation
companies; and
"(c) All other laws, acts, decrees, executive orders, issuances
and rules and regulations or parts thereof which are contrary to
and inconsistent with any provisions of this Act are hereby
repealed, amended or modified accordingly."
On the other hand, Section 12 of PD No. 87 provides —
"Sec. 12. Privileges of Contractor. — The provisions of any law to the
contrary notwithstanding, a contract executed under this Act may provide that
the contractor shall have the following privileges:
"(a) Exemption from all taxes except income tax.
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 xxx xxx xxx"
Prescinding from the above-cited provisions of laws, it is clear that R.A. No. 9337
explicitly identi es the laws which have been repealed, i.e., R.A. No. 6395 and R.A. No.
9136. It is a principle in statutory construction that the express mention of one person,
thing, act, or consequence excludes all others, as expressed in the familiar maxim
expressio unius est exclusion alterius. Thus, the absence of PD No. 87 in Section 24 of
R.A. No. 9337 clearly evinces the legislature's intent not to repeal PD No. 87. This is so
because, had it been the intent of Congress to repeal PD No. 87, it would have simply
included PD No. 87 in the specific enumeration of the laws repealed by R.A. No. 9337.
Moreover, R.A. No. 9337 being a general repealing clause, it cannot operate to
repeal the provisions of PD No. 87 as it fails to designate the speci c act or acts,
identi ed by number or title, that are intended to be repealed. In the case of City
Government of San Pablo, Laguna v. Reyes, the Supreme Court held that:
"We are mindful of the established rule that repeals by implication are not
favored as laws are presumed to be passed with deliberation and full
knowledge of all laws existing on the subject. A general law cannot be
construed to have repeated a special law by mere implication unless the intent
to repeal or alter is manifest and it must be convincingly demonstrated that the
two are so clearly repugnant and patently inconsistent that they cannot co-
exist."
Repeals by implication are not favored and will not be so declared unless it be
manifest that the legislature so intended. (Villegas v. Subido, 41 SCRA 190 )
Thus, in BIR Ruling No. DA409-2005 dated October 4, 2005 , this O ce ruled that
—
". . . upon a close examination of the above-cited Sections of the Tax
Code which is a general law vis-à-vis R.A. Nos. 7279 and 6657 which are special
laws, this O ce holds that the former did not repeal the latter, notwithstanding
the Tax Code has a repealing clause as above-mentioned. This is so because of
the following: (1) were it the intention of the legislature to repeal R.A. Nos. 7279
and 6657, it could have easily stated so in the repealing clause of the Tax Code;
and (2) it is settled that a general law cannot repeal a special law by
implication. The repeal must be express and speci c ( People vs. Palma, 76
SCRA 243). Repeals by implication are not favored (Valdez vs. Tuazon, 40 Phil.
943; Bocobo vs. Estanislao, 72 SCRA 520) for the legislature is presumed to
know all the existing laws on the subject. (US vs. Palacio, 33 Phil. 208)
That PD No. 87 is a special law and should be regarded as an exception to the
general provisions of R.A. No. 9337, and therefore petroleum service contractors
remain exempt from all taxes including VAT, except income tax, is further strengthened
in Section 109(k) of the Tax Code of 1997, as amended by R.A. No. 9337, which
provides that —
"Sec. 109. Exempt Transactions . — (1) Subject to the provisions of
Subsection (2) hereof, the following transactions shall be exempt from the
value-added tax:
"(k) Transactions which are exempt under international
agreements to which the Philippines is a signatory or under
special laws, except those under Presidential Decree No. 529.
It can readily be seen in the aforesaid section that it expressly identi es the law,
i.e., PD No. 529, which is excepted from the exemption privilege. Therefore, petroleum
operations under PD No. 87, which fall within the class of transactions which are
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 exempt under special laws, are exempt from VAT pursuant to Section 109(k), supra.
Finally, the principle of non-impairment of contracts is enshrined under Section
10, Article III of the 1987 Philippine Constitution which states that —
"No law impairing the obligation of contracts shall be passed."
The tax exemption privilege of the Service Contractor under SC 38 is a
contractual tax exemption granted by the government in exchange for a valid and
material consideration, the valid and material consideration obtained by the
government in exchange for granting the Service Contractor the right to be exempt
from all taxes (except income tax) under SC 38 consists of the Service Contractor's
obligation (i) to furnish services, technology, and financing for, and (ii) to assume all risk
relating to, the conduct of petroleum operations. Accordingly, said contractual tax
exemption is protected by the non-impairment clause of the 1987 Philippine
Constitution. In the instant case, the government expressly acknowledged that the tax
exemption privilege of the Service Contractor under SC 38 is a contractual tax
exemption granted by the government in exchange for a valid and material
consideration as when the parties stipulated in Section 6.2(g) of SC 38 that the rights
and obligations in the Contract shall be deemed an essential consideration for the
conclusion thereof and shall not be unilaterally changed or impaired. TSIDaH

In the case of Manila Electric Co. v. Province of Laguna, 306 SCRA 750 , the
Supreme Court distinguished between tax exemptions agreed to by the government in
contracts and tax exemptions contained in special franchises. It was ruled that
contractual tax exemptions, however, are not to be confused with tax exemptions
granted under franchises. A franchise partake the nature of a grant which is beyond the
purview of the non-impairment clause of the Constitution. Thus, contractual tax
exemptions are subject to the non-impairment clause of the Constitution while tax
exemptions granted under legislative franchises are not.
In ne, the tax exemption being enjoyed by the Service Contractor arises not out
of legislative franchises but out of SC 38, a contract lawfully entered into between the
Service Contractor and the Government of the Philippine represented by then President
Corazon C. Aquino. Inasmuch as the tax exemption privilege of the Service Contractor is
a contractual tax exemption granted by the government in exchange for a valid and
material consideration, said tax exemption may not be unilaterally withdrawn without
violating the non-impairment clause of the 1987 Philippine Constitution.
WHEREFORE, in view of the foregoing , this O ce holds that the Service
Contractor's sales of natural gas remain exempt from VAT pursuant to Section 12(a) of
PD No. 87 in relation to Section 6.2. of SC 38.
This ruling is being issued on the basis of the foregoing facts as represented.
However, if upon investigation, it will be disclosed that the facts are different, then this
ruling shall be considered null and void.

Very truly yours,

(SGD.) JOSE MARIO C. BUÑAG

Commissioner of Internal Revenue

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