SECOND DIVISION

G.R. No. 153205             January 22, 2007

COMMISSIONER OF INTERNAL REVENUE, Petitioner,

vs.
BURMEISTER AND WAIN SCANDINAVIAN CONTRACTOR MINDANAO, INC., Respondent.

DECISION

CARPIO, J.:

The Antecedents

The CTA summarized the facts, which the Court of Appeals adopted, as follows:

[Respondent] is a domestic corporation duly organized and existing under and by virtue of the laws
of the Philippines with principal address located at Daruma Building, Jose P. Laurel Avenue,
Lanang, Davao City.

It is represented that a foreign consortium composed of Burmeister and Wain Scandinavian

Contractor A/S (BWSC-Denmark), Mitsui Engineering and Shipbuilding, Ltd., and Mitsui and
Co., Ltd. entered into a contract with the National Power Corporation (NAPOCOR) for the
operation and maintenance of [NAPOCOR’s] two power barges. The Consortium appointed
BWSC-Denmark as its coordination manager.

BWSC-Denmark established [respondent] which subcontracted the actual operation and

maintenance of NAPOCOR’s two power barges as well as the performance of other duties
and acts which necessarily have to be done in the Philippines.

NAPOCOR paid capacity and energy fees to the Consortium in a mixture of currencies (Mark,
Yen, and Peso). The freely convertible non-Peso component is deposited directly to the
Consortium’s bank accounts in Denmark and Japan, while the Peso-denominated component is
deposited in a separate and special designated bank account in the Philippines. On the other hand,
the Consortium pays [respondent] in foreign currency inwardly remitted to the Philippines
through the banking system.

In order to ascertain the tax implications of the above transactions, [respondent] sought a ruling from
the BIR which responded with BIR Ruling No. 023-95 dated February 14, 1995, declaring therein
that if [respondent] chooses to register as a VAT person and the consideration for its services is paid
for in acceptable foreign currency and accounted for in accordance with the rules and regulations of
the Bangko Sentral ng Pilipinas, the aforesaid services shall be subject to VAT at zero-rate.

[Respondent] chose to register as a VAT taxpayer. On May 26, 1995, the Certificate of
Registration bearing RDO Control No. 95-113-007556 was issued in favor of [respondent] by the
Revenue District Office No. 113 of Davao City.

For the year 1996, [respondent] seasonably filed its quarterly Value-Added Tax Returns reflecting,
among others, a total zero-rated sales of P147,317,189.62 with VAT input taxes of P3,361,174.14,
detailed as follows:
 Qtr. Exh. Date Filed Zero-Rated Sales VAT Input Tax

1st E 04-18-96 P 33,019,651.07 P608,953.48

2nd F 07-16-96 37,108,863.33 756,802.66
3rd G 10-14-96 34,196,372.35 930,279.14
4th H 01-20-97 42,992,302.87 1,065,138.86

Totals P147,317,189.62 P3,361,174.14

On December 29, 1997, [respondent] availed of the Voluntary Assessment Program (VAP) of the
BIR. It allegedly misinterpreted Revenue Regulations No. 5-96 dated February 20, 1996 to be
applicable to its case. Revenue Regulations No. 5-96 provides in part thus:

SECTIONS 4.102-2(b)(2) and 4.103-1(B)(c) of Revenue Regulations No. 7-95 are hereby amended
to read as follows:

Section 4.102-2(b)(2) – "Services other than processing, manufacturing or repacking for other
persons doing business outside the Philippines for goods which are subsequently exported, as well
as services by a resident to a non-resident foreign client such as project studies, information
services, engineering and architectural designs and other similar services, the consideration for
which is paid for in acceptable foreign currency and accounted for in accordance with the rules and
regulations of the BSP."

x x x x x x x x x x.

In [conformity] with the aforecited Revenue Regulations, [respondent] subjected its sale of
services to the Consortium to the 10% VAT in the total amount of P103,558,338.11
representing April to December 1996 sales since said Revenue Regulations No. 5-96 became
effective only on April 1996. The sum of P43,893,951.07, representing January to March 1996
sales was subjected to zero rate. Consequently, [respondent] filed its 1996 amended VAT return
consolidating therein the VAT output and input taxes for the four calendar quarters of 1996. It paid
the amount of P6,994,659.67 through BIR’s collecting agent, PCIBank, as its output tax liability for
the year 1996, computed as follows:

Amount subject to 10% VAT P103,558,338.11

Multiply by 10%

VAT Output Tax P 10,355,833.81

Less: 1996 Input VAT P 3,361,174.14

VAT Output Tax Payable P 6,994,659.67

On January 7,1999, [respondent] was able to secure VAT Ruling No. 003-99 from the VAT Review
Committee which reconfirmed BIR Ruling No. 023-95 "insofar as it held that the services being
rendered by BWSCMI is subject to VAT at zero percent (0%)."

On the strength of the aforementioned rulings, [respondent] on April 22,1999, filed a claim for
the issuance of a tax credit certificate with Revenue District No. 113 of the BIR. [Respondent]
believed that it erroneously paid the output VAT for 1996 due to its availment of the Voluntary
Assessment Program (VAP) of the BIR.4

On 27 December 1999, respondent filed a petition for review with the CTA in order to toll the running
of the two-year prescriptive period under the Tax Code.

The Ruling of the Court of Tax Appeals

In its 8 August 2001 Decision, the CTA ordered petitioner to issue a tax credit certificate
for P6,994,659.67 in favor of respondent.

The Court of Appeals’ Ruling

In affirming the CTA, the Court of Appeals rejected petitioner’s view that since respondent’s services
are not destined for consumption abroad, they are not of the same nature as project studies,
information services, engineering and architectural designs, and other similar services mentioned in
Section 4.102-2(b)(2) of Revenue Regulations No. 5-96 7 as subject to 0% VAT. Thus, according to
petitioner, respondent’s services cannot legally qualify for 0% VAT but are subject to the regular
10% VAT.8

The Issue

The lone issue for resolution is whether respondent is entitled to the refund of P6,994,659.67 as
erroneously paid output VAT for the year 1996. 16

The Ruling of the Court

We deny the petition.

At the outset, the Court declares that the denial of the instant petition is not on the ground
that respondent’s services are subject to 0% VAT. Rather, it is based on the non-retroactivity
of the prejudicial revocation of BIR Ruling No. 023-9517 and VAT Ruling No. 003-99,18 which
held that respondent’s services are subject to 0% VAT and which respondent invoked in
applying for refund of the output VAT.

Section 102(b) of the Tax Code,19 the applicable provision in 1996 when respondent rendered the
services and paid the VAT in question, enumerates which services are zero-rated, thus:

(b) Transactions subject to zero-rate. ― The following services performed in the Philippines by VAT-
registered persons shall be subject to 0%:

(1) Processing, manufacturing or repacking goods for other persons doing business

outside the Philippines which goods are subsequently exported, where the services are
paid for in acceptable foreign currency and accounted for in accordance with the rules and
regulations of the Bangko Sentral ng Pilipinas (BSP);
 (2) Services other than those mentioned in the preceding sub-paragraph, the
consideration for which is paid for in acceptable foreign currency and accounted for in
accordance with the rules and regulations of the Bangko Sentral ng Pilipinas (BSP);

(3) Services rendered to persons or entities whose exemption under special laws or
international agreements to which the Philippines is a signatory effectively subjects the
supply of such services to zero rate;

(4) Services rendered to vessels engaged exclusively in international shipping; and

(5) Services performed by subcontractors and/or contractors in processing, converting, or

manufacturing goods for an enterprise whose export sales exceed seventy percent (70%) of
total annual production. (Emphasis supplied)

In insisting that its services should be zero-rated, respondent claims that it complied with the
requirements of the Tax Code for zero rating under the second paragraph of Section 102(b).
Respondent asserts that (1) the payment of its service fees was in acceptable foreign currency, (2)
there was inward remittance of the foreign currency into the Philippines, and (3) accounting of such
remittance was in accordance with BSP rules. Moreover, respondent contends that its services
which "constitute the actual operation and management of two (2) power barges in Mindanao" are
not "even remotely similar to project studies, information services and engineering and architectural
designs under Section 4.102-2(b)(2) of Revenue Regulations No. 5-96." As such, respondent’s
services need not be "destined to be consumed abroad in order to be VAT zero-rated."

Respondent is mistaken.

The Tax Code not only requires that the services be other than "processing, manufacturing
or repacking of goods" and that payment for such services be in acceptable foreign currency
accounted for in accordance with BSP rules. Another essential condition for qualification to zero-
rating under Section 102(b)(2) is that the recipient of such services is doing business outside the
Philippines. While this requirement is not expressly stated in the second paragraph of Section
102(b), this is clearly provided in the first paragraph of Section 102(b) where the listed
services must be "for other persons doing business outside the Philippines." The phrase "for
other persons doing business outside the Philippines" not only refers to the services enumerated in
the first paragraph of Section 102(b), but also pertains to the general term "services" appearing in
the second paragraph of Section 102(b). In short, services other than processing,
manufacturing, or repacking of goods must likewise be performed for persons doing
business outside the Philippines.

This can only be the logical interpretation of Section 102(b)(2). If the provider and recipient of the
"other services" are both doing business in the Philippines, the payment of foreign currency is
irrelevant. Otherwise, those subject to the regular VAT under Section 102(a) can avoid paying the
VAT by simply stipulating payment in foreign currency inwardly remitted by the recipient of services.
To interpret Section 102(b)(2) to apply to a payer-recipient of services doing business in the
Philippines is to make the payment of the regular VAT under Section 102(a) dependent on the
generosity of the taxpayer. The provider of services can choose to pay the regular VAT or avoid it by
stipulating payment in foreign currency inwardly remitted by the payer-recipient. Such interpretation
removes Section 102(a) as a tax measure in the Tax Code, an interpretation this Court cannot
sanction. A tax is a mandatory exaction, not a voluntary contribution.

When Section 102(b)(2) stipulates payment in "acceptable foreign currency" under BSP rules, the
law clearly envisions the payer-recipient of services to be doing business outside the Philippines.
Only those not doing business in the Philippines can be required under BSP rules20 to pay in
acceptable foreign currency for their purchase of goods or services from the Philippines. In a
domestic transaction, where the provider and recipient of services are both doing business in the
Philippines, the BSP cannot require any party to make payment in foreign currency.

Services covered by Section 102(b) (1) and (2) are in the nature of export sales since the payer-
recipient of services is doing business outside the Philippines. Under BSP rules,21 the proceeds of
export sales must be reported to the Bangko Sentral ng Pilipinas. Thus, there is reason to
require the provider of services under Section 102(b) (1) and (2) to account for the foreign
currency proceeds to the BSP. The same rationale does not apply if the provider and recipient of
the services are both doing business in the Philippines since their transaction is not in the nature of
an export sale even if payment is denominated in foreign currency.

Further, when the provider and recipient of services are both doing business in the
Philippines, their transaction falls squarely under Section 102(a) governing domestic sale or
exchange of services. Indeed, this is a purely local sale or exchange of services subject to
the regular VAT, unless of course the transaction falls under the other provisions of Section 102(b).

Thus, when Section 102(b)(2) speaks of "[s]ervices other than those mentioned in the preceding
subparagraph," the legislative intent is that only the services are different between subparagraphs
1 and 2. The requirements for zero-rating, including the essential condition that the recipient of
services is doing business outside the Philippines, remain the same under both subparagraphs.

Significantly, the amended Section 108(b)22 [previously Section 102(b)] of the present Tax Code
clarifies this legislative intent. Expressly included among the transactions subject to 0% VAT are
"[s]ervices other than those mentioned in the [first] paragraph [of Section 108(b)] rendered to a
person engaged in business conducted outside the Philippines or to a nonresident person not
engaged in business who is outside the Philippines when the services are performed, the
consideration for which is paid for in acceptable foreign currency and accounted for in accordance
with the rules and regulations of the BSP."

In this case, the payer-recipient of respondent’s services is the Consortium which is a joint-
venture doing business in the Philippines. While the Consortium’s principal members are non-
resident foreign corporations, the Consortium itself is doing business in the Philippines. This is
shown clearly in BIR Ruling No. 023-95 which states that the contract between the Consortium and
NAPOCOR is for a 15-year term, thus:

This refers to your letter dated January 14, 1994 requesting for a clarification of the tax implications
of a contract between a consortium composed of Burmeister & Wain Scandinavian Contractor A/S
("BWSC"), Mitsui Engineering & Shipbuilding, Ltd. (MES), and Mitsui & Co., Ltd. ("MITSUI"), all
referred to hereinafter as the "Consortium", and the National Power Corporation ("NAPOCOR") for
the operation and maintenance of two 100-Megawatt power barges ("Power Barges")
acquired by NAPOCOR for a 15-year term.23 (Emphasis supplied)

Considering this length of time, the Consortium’s operation and maintenance of NAPOCOR’s
power barges cannot be classified as a single or isolated transaction. The Consortium does not
fall under Section 102(b)(2) which requires that the recipient of the services must be a person doing
business outside the Philippines. Therefore, respondent’s services to the Consortium, not being
supplied to a person doing business outside the Philippines, cannot legally qualify for 0% VAT.

Respondent, as subcontractor of the Consortium, operates and maintains NAPOCOR’s power

barges in the Philippines. NAPOCOR pays the Consortium, through its non-resident partners,
partly in foreign currency outwardly remitted. In turn, the Consortium pays respondent also in
foreign currency inwardly remitted and accounted for in accordance with BSP rules. This
payment scheme does not entitle respondent to 0% VAT. As the Court held in Commissioner of
Internal Revenue v. American Express International, Inc. (Philippine Branch), 24 the place of
payment is immaterial, much less is the place where the output of the service is ultimately
used. An essential condition for entitlement to 0% VAT under Section 102(b)(1) and (2) is that
the recipient of the services is a person doing business outside the Philippines. In this case,
the recipient of the services is the Consortium, which is doing business not outside, but within the
Philippines because it has a 15-year contract to operate and maintain NAPOCOR’s two 100-
megawatt power barges in Mindanao.

The Court recognizes the rule that the VAT system generally follows the "destination principle"
(exports are zero-rated whereas imports are taxed). However, as the Court stated in American
Express, there is an exception to this rule.25 This exception refers to the 0% VAT on services
enumerated in Section 102 and performed in the Philippines. For services covered by Section 102(b)
(1) and (2), the recipient of the services must be a person doing business outside the Philippines.
Thus, to be exempt from the destination principle under Section 102(b)(1) and (2), the
services must be (a) performed in the Philippines; (b) for a person doing business outside the
Philippines; and (c) paid in acceptable foreign currency accounted for in accordance with BSP rules.

Respondent’s reliance on the ruling in American Express26 is misplaced. That case involved a
recipient of services, specifically American Express International, Inc. (Hongkong Branch),
doing business outside the Philippines. There, the Court stated:

Respondent [American Express International, Inc. (Philippine Branch)] is a VAT-registered person

that facilitates the collection and payment of receivables belonging to its non-resident foreign client
[American Express International, Inc. (Hongkong Branch)], for which it gets paid in acceptable
foreign currency inwardly remitted and accounted for in accordance with BSP rules and regulations.
x x x x27 (Emphasis supplied)

In contrast, this case involves a recipient of services – the Consortium – which is doing
business in the Philippines. Hence, American Express’ services were subject to 0% VAT,
while respondent’s services should be subject to 10% VAT.

Nevertheless, in seeking a refund of its excess output tax, respondent relied on VAT Ruling No. 003-
99,28 which reconfirmed BIR Ruling No. 023-9529 "insofar as it held that the services being rendered
by BWSCMI is subject to VAT at zero percent (0%)." Respondent’s reliance on these BIR rulings
binds petitioner.

Petitioner’s filing of his Answer before the CTA challenging respondent’s claim for refund
effectively serves as a revocation of VAT Ruling No. 003-99 and BIR Ruling No. 023-95.
However, such revocation cannot be given retroactive effect since it will prejudice respondent.
Changing respondent’s status will deprive respondent of a refund of a substantial amount
representing excess output tax.30 Section 246 of the Tax Code provides that any revocation of a
ruling by the Commissioner of Internal Revenue shall not be given retroactive application if the
revocation will prejudice the taxpayer. Further, there is no showing of the existence of any of the
exceptions enumerated in Section 246 of the Tax Code for the retroactive application of such
revocation.

However, upon the filing of petitioner’s Answer dated 2 March 2000 before the CTA contesting
respondent’s claim for refund, respondent’s services shall be subject to the regular 10% VAT. 31 Such
filing is deemed a revocation of VAT Ruling No. 003-99 and BIR Ruling No. 023-95.