2012 Taxation Law, Q2

Foster Corporation (FC) is a Singapore-based foreign corporation engaged in construction and installation projects. In 2010, Global Oil Corporation (GOC), a domestic corpoartion engaged in the refinery of petroleum products, awarded an anti-pollution project to Foster Corporation, whereby FC shall design, supply machinery and equipment, and install an anti-pollution device for GOC’s refinery in the Philippines, provided that the installation part of the project may be sub-contracted to a local construction company. Pursuant to the contract, the design and supply contracts were done in Singapore by FC, while the installation works were sub-contracted by the FC with the Philippine Construction Corporation (PCC), a domestic corporation. The project with a total cost of P100 Million was completed in 2011 at the following cost components: (design – P20Million; machinery and equipment – P50 Million; and installation –P30 Million). Assume that the project was 40% complete in 2010 and 100% complete in 2011, based on the certificates issued by the certificates issued by the architects and engineers working on the project. GOC paid FC as follows: P60 Million in 2010 and P40 Million in 2011, and FC paid PCC ion foreign currency through a Philippine bank as follows: P10 Million in 2010 and P20 Million in 2011.
a) Is FC liable to Philippines income tax, and if so, how much revenue shall be reported by it in 2010 and in 2011? Explain your answer. (5%)
b) Is PCC, which adopted the percentage of completion method of reporting income and expenses, liable to value added tax in 2010 and in 2011. Explain your answer. (5%)

Quick check

How is a non-resident foreign corporation taxed on its income under Section 42 of the NIRC?

What is the VAT rate on local installation services rendered to a non-resident foreign corporation and paid in inwardly remitted foreign currency?

Where is the income source located for engineering design contracts performed entirely outside the Philippines by a foreign entity?

Under tax treaties, what condition must exist for a foreign corporation's business profits to be taxable in the Philippines?

How is a domestic subcontractor taxed on payments received in foreign currency for local construction work from a foreign prime contractor?

Learn more about these topics

1. NRFC Income Taxability
Under Section 42 of the National Internal Revenue Code and international tax treaties, a non-resident foreign corporation is subject to Philippine income tax only on income derived from sources within the Philippines. Business profits earned by a foreign entity without a permanent establishment in the Philippines are exempt from domestic corporate income taxation. When design work and machinery manufacturing occur entirely offshore abroad, the resulting revenues constitute foreign-source income beyond the territorial jurisdiction of Philippine tax authorities.

2. Zero-Rated Subcontracted Services
Under Section 108(B)(2) of the Tax Code, services rendered by a domestic contractor to a non-resident foreign corporation doing business outside the Philippines qualify for zero percent Value-Added Tax. To qualify for zero-rating, the consideration for services performed within the Philippines must be paid in acceptable foreign currency inwardly remitted through the domestic banking system. Subcontracted construction and installation services rendered locally satisfy statutory zero-rating requirements when settled via qualifying foreign exchange remittances.

3. Permanent Establishment Rule
Under double taxation agreements, such as the Philippines-Singapore Tax Treaty, business profits of a foreign enterprise are taxable in the host country only if attributable to a local permanent establishment. Where a foreign prime contractor subcontracts all physical installation and construction activities within the host country to an independent domestic corporation, the foreign entity does not create a permanent establishment. Consequently, the foreign prime contractor remains completely immune from host-country income tax liability.

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The questions reproduced here are the official texts of the Philippine Bar Examinations, published by the Supreme Court. They are reproduced for study purposes.The suggested answers are the author’s own.

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