REVENUE MEMORANDUM ORDER NO. 24-2016 issued on June 8, 2016 prescribes the guidelines and procedures in the conduct of investigation of parties in transactions involving the transfer/assignment/sale of properties. Such transactions covered by the Order are, but not limited to, those subject to: (1) Final Capital Gains Tax (CGT) on sale of real properties considered as capital assets; (2) CGT on sale, transfer or assignment of stocks not traded in the stock exchange; (3) Expanded Withholding Tax (EWT) on the sale of real properties considered as ordinary assets; (4) Donor’s Tax; (5) Estate Tax; (6) other taxes including Documentary Stamp Tax related to the sale/transfer of properties and (7) those covered by tax-free transfer under Section 40 of the National Internal Revenue Code (NIRC).
The application for the issuance of Certificate Authorizing Registrations (CARs) and Tax Clearance (TCLs) covering sale/transfer/assignment of properties under Revenue Memorandum Order (RMO) No. 15-2003 and other related issuances, including all supporting documents required under existing BIR issuances and may be required thereafter as necessary, shall be evaluated for possible audit or investigation.
Parties to the said transactions may be subjected to an audit or investigation to determine their capacity to hold and/or acquire properties. If it is determined that the seller/transferor has no capacity to acquire the Subject Property he/she/it is selling/assigning/transferring and/or the buyer/transferee has no capacity to acquire the Subject Property, the Revenue District Officer (RDO) may recommend the issuance of electronic Letter of Authority (eLA), for approval by the Regional Director (RD) having jurisdiction over the parties concerned.
The One–Time Transactions (ONETT) Team shall verify with the Integrated Tax System that the parties (seller/assignor/transferor and buyer/assignee/transferee) regularly files returns and report income sufficient to establish financial capacity. For individuals not required to file an Income Tax Return, they will be asked by the ONETT Team to submit an affidavit stating therein (1) why they are not required to file an Income Tax Return; (2) total annual income; and (3) source of their income.
Presentation of documents, such as but not limited to Income Tax Return, Certificate of Creditable Tax Withheld at Source, Certificate of Final Tax Withheld at Source or loan documents as the source of the consideration for the acquisition of the Subject Property, may be used to establish financial capacity.
The financial capacity of the buyer to acquire the Subject Property shall be determined during the application for CARs and TCLs. If the buyer/transferee is proven to have no financial capacity to acquire the property, the transaction is considered not a sale but donation, which shall be imposed Donor’s Tax and not Capital Gains Tax, and shall be required to present a duly executed Deed of Donation.
The lack of financial capacity of the seller/assignor/transferor shall not stop the processing and issuance of the CARs and TCLs relating to the Subject Property. The processing and issuance of the CARs and TCLs shall proceed in accordance to RMO No. 15-2003 and any amendment thereto, notwithstanding the impending audit or investigation.
For application of BIR Certification Ruling on the consequence of a tax-free exchange transactions, the taxpayers shall submit all supporting documents required under existing rules and regulations, in quadruplicate, to the BIR Law Division. If it is determined that the transferor/assignor does not have the capacity to acquire the property subject of the tax-free exchange, the Law Division shall forward the application to the National Investigation Division (NID), for investigation.
To initiate an audit/investigation, the NID shall submit a memorandum-request directly to the Office of the Commissioner indicating the following:
? Parties to be audited (the transferor/s and the transferee/s);
? Brief background of the tax-free exchange transaction;
? Tax compliance history of the parties based on internal revenue information;
? Justifications for the conduct of an audit/investigation; and
? Such other information as may be required by the Commissioner of Internal Revenue.
The processing of BIR Certification Ruling and issuance of CARs and TCLs on the transfer of properly in exchange for shares of stock shall proceed notwithstanding the impending audit or investigation.
The procedures and requirements contained in this issuance shall be mandatory on sale/transfer/assignment of stocks not traded in the Stocks Exchange and other ONETT transactions involving tax payments of at least One Million (P1,000,000) and transactions exempted from Capital Gains Tax/Expanded Withholding Tax (e.g. tax-free exchange under Section 40 (c)(2) of the NIRC of 1997).
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Robert G. Sarmiento Properties
Professional Affiliation :
Real Estate Broker’s Association of the Philippines
President, Greenhills Chapter 2008, 2009
Philippine Association of Real Estate Brokers
San Juan Mandaluyong Chapter 1998, 1999
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