GENERAL TAX AMNESTY: TO AVAIL OR NOT TO AVAIL?
By: Euney Marie J. Mata-Perez on January 10, 2019
It is now clear that the proposed Tax Amnesty Act (TAA) will be passed soon. The report of the Bicameral Conference Committee which harmonized the provisions of the tax amnesty bills (House Bill Nos. 4814 and 8554 and Senate Bill No. 2059 [SB 2059]) has gotten the nod of both the Senate and the House of Representatives. Thus, the bill is in the final stages of enrollment and signature.
The question to many taxpayers now is whether or not they should avail of the general tax amnesty (GTA). Prudence dictates that any decision to avail of the GTA should be based on a thorough and well-thought-out cost-benefit analysis. As a guide, we discuss these major costs and benefits of the GTA.
Cost of the GTA tax – The proposed and harmonized TAA adopted the general amnesty tax calculation proposed by both the Senate and the Lower House. It thus gives the taxpayers the option of paying a general amnesty tax calculated at 2 percent of total assets or 5 percent of net worth (with a minimum fixed amount which does not go below P100,000 for corporations and P75,000 for individuals and other juridical entities like foundations and cooperatives, depending on the amount of its subscribed capital stock).
The above calculation method may result in the payment of high amnesty taxes for taxpayers which have high net worth or asset values. It also differs from the calculation under Republic Act No. 9480, the Tax Amnesty Act of 2007, pursuant to which the 5 percent amnesty tax was based on the “increase” in net worth only.
Declaration of assets or net worth – The availment of the GTA requires taxpayers to submit sworn Statements of Total Assets (STA), if the 2 percent tax is selected, or Statements of Assets, Liabilities and Net worth (SALN), if the 5 percent amnesty tax is paid. Both STA and SALN must be accompanied by a declaration of total assets, which for real properties should include description of classification, exact location and acquisition cost, if acquired by purchase, or fair market value or zonal value, if acquired by inheritance or donation. Personal properties shall also be described, and their cost less accumulated depreciation, if acquired by purchase, or fair market value or zonal value, if acquired by gift or inheritance, should be indicated. In addition, the SALN should include all existing liabilities, which are legitimate and enforceable, secured or unsecured, indicating clearly the names and addresses of the creditors and the amount of the liability.
It should be noted that the GTA can be availed of only within one year from the passage of its implementing rules and regulations or IRR, which we understand are already being prepared by the Bureau of Internal Revenue (BIR). Thus, the taxpayer availing of the GTA must be ready and quick to submit its STA or SALN, as the case may be. Also, discounts to the 5 percent amnesty tax are granted for taxpayers who avail of the amnesty within nine months from the IRR passage.
Immunity from payment of taxes –The availment of the GTA shall give the taxpayers immunity from the payment of taxes, including additions thereto (surcharges and interests), as well as from all appurtenant civil, criminal and civil penalties under the Tax Code for failure to pay all internal revenue taxes for taxable year 2017 and prior years.
Immunity from investigations – The taxpayers shall likewise be immune from such other investigations or suits insofar as they relate to the assets, liabilities, net worth and internal revenue taxes that are subject of the tax amnesty. These national internal revenue taxes include income tax, withholding tax capital gains tax, donor’s tax, value-added tax (VAT), other percentage taxes, excise taxes and donor’s tax collected by the BIR, as well as VAT and excise taxes collected by the Bureau of Customs (BOC) for the year 2017 and prior years.
Confidentiality – Any information or data contained in the Tax Amnesty Return, STA or SALN, and appurtenant documents shall be confidential in nature and shall not be used in any investigation or prosecution before any judicial, quasi-judicial and administrative bodies.
No audit — The books of accounts and other records of the taxpayer for the years covered by the tax amnesty availed of shall not be examined by the BIR (although the BIR may still examine such books or records to verify claims for any tax refund, tax credit, tax incentives or exemptions).
Presumption of correctness – The STA and SALN shall be conclusively presumed as true, correct and final upon filing thereof.
Similar to the estate tax amnesty which we discussed in our December 20, 2018 column, the GTA availment requires taxpayers to obtain from the BIR an Acceptance Payment Form before paying the GTA tax and a Certificate of Availment after such payment. Obtaining such documents will force the taxpayers to deal with BIR officers, which may give opportunity for corruption or harassment.
The availment of the GTA, like any business decision, requires that taxpayers do a cost-benefit analysis. For many, the cost of the amnesty tax will be critical. However, it should be weighed against the benefits—a new lease in “life” as a taxpayer, since it gives them an opportunity to settle old tax issues and liabilities and come out clean for tax purposes. These benefits may outweigh the costs for many.
Another aspect of the TAA though is the amnesty on delinquents, a new feature in this current proposed act. We will write on this aspect of the TAA in another article.
Euney Marie J. Mata-Perez is a CPA-Lawyer and the Managing Partner of Mata-Perez, Tamayo & Francisco (MTF Counsel). She is a corporate, M&A and tax lawyer. She is the newly-elected President of the Asia-Oceana Tax Consultants’ Association. This article is for general information only and is not a substitute for professional advice where the facts and circumstances warrant. If you have any question or comment regarding this article, you may email the author at email@example.com or visit MTF website at www.mtfcounsel.com.
From The Manila Times website on January 10, 2019