HERNANDO, J.:[**]
In the present case, it is clear that petitioner failed to comply with the "120-30" day period. Records of the case show that petitioner filed its administrative claim for refund on March 23, 2010 and thereafter filed its Petition for Review on June 29, 2010 or before the lapse of the 120-day period on July 21, 2010. Consequently, the instant Petition for Review was prematurely filed and this Court lacks jurisdiction.On July 27, 2011, the CTA Second Division denied petitioner's motion for reconsideration for lack of merit.[14]
x x x . As the Court has no jurisdiction to decide the present case on the merits for petitioner's failure to comply with Section 112 (C) of the NIRC of 1997, the Court has no other alternative but to GRANT respondent's Motion to Dismiss.
WHEREFORE, premises considered, the petition for review is hereby DENIED for being prematurely filed.
SO ORDERED.[13]
The petition has no merit.In its Resolution[17] dated December 11, 2012, the CTA En Banc held that the motion for reconsideration of petitioner raised the same issues and arguments which have already been discussed by the Court, thus:
The issues raised by petitioner are not novel, as the same had already been settled by the Supreme Court in the case of Commissioner of Internal Revenue v. Aichi Forging Company of Asia, Inc., 632 SCRA 422 x x x.
x x x x
Under the above-quoted ruling, the Supreme Court clarified that Section 112 (A) of the NIRC of 1997, as amended, provides a 2-year prescriptive period to file an administrative claim for refund/credit with the CIR, while Section 112 (D) [now Section 112 (C)] of the same Code provides a period within which to file a judicial claim for refund/credit with the CTA, which is, within thirty (30) days from receipt of the decision of the CIR, or from the expiration of the 120-day period when no decision was made by the CIR within the 120-day period. The premature filing of the claim for refund or credit with the CTA warrants a dismissal of the claim, inasmuch as no jurisdiction was acquired by the CTA.
x x x x
WHEREFORE, premises considered, the instant petition is hereby DISMISSED for lack of merit.
SO ORDERED.[16]
x x x . The arguments stated therein constitute neither compelling nor cogent reason to modify, much less reverse our Decision dated August 16, 2012.Thus, this petition for review on certiorari.
WHEREFORE, premises considered, petitioner's "Motion for Reconsideration" is hereby DENIED for lack of merit.
SO ORDERED.[18]
1. The premature filing of the judicial claim for refund is not jurisdictional but merely constitutes a failure to state a cause of action.
2. The [CIR] waived [its] right to raise the defense of failure to state a cause of action in [its] Answer.
3. Since the provisions of the 1977 and the 1997 Tax Code are substantially the same, the Aichi case cannot overturn the ruling of this Court in the Atlas case, where it was held that Section 229 of the Tax Code applies to claims for refunds of VAT;
4. Sections 112 and 229, Tax Code should be reconciled;
5. Even the [CIR's] own issuances show that judicial claims for VAT refunds must be filed within the [two]-year prescriptive period; and
6. Assuming arguendo that Aichi is applicable, the same should be applied prospectively.
Section 112 (D) [now Section 112 (C)] of the NIRC clearly provides that the CIR has "120 days, from the date of the submission of the complete documents in support of the application [for tax refund/credit],” within which to grant or deny the claim. In case of full or partial denial by the CIR, the taxpayer's recourse is to file an appeal before the CTA within 30 days from receipt of the decision of the CIR. However, if after the 120-day period the CIR fails to act on the application for tax refund/credit, the remedy of the taxpayer is to appeal the inaction of the CIR to CTA within 30 days.[20]There is an exception to this general rule, however. BIR Ruling No. DA-489-03, a general interpretative rule issued by the CIR pursuant to its power under Section 4[21] of the Tax Code, expressly states that the "taxpayer-claimant need not wait for the lapse of the 120-day period before it could seek judicial relief with the CTA by way of petition for review." The landmark case of Commissioner of Internal Revenue v. San Roque Power Corporation[22] consolidated with Taganito Mining Corporation v. Commissioner of Internal Revenue[23] (Taganito), and Philex Mining Corporation v. Commissioner of Internal Revenue[24] (Philex) clearly explained the exception in this wise:
BIR Ruling No. DA-489-03 is a general interpretative rule because it was a response to a query made, not by a particular taxpayer, but by a government agency tasked with processing tax refunds and credits, that is, the One Stop Shop Inter-Agency Tax Credit and Drawback Center of the Department of Finance. This government agency is also the addressee, or the entity responded to, in BIR Ruling No. DA-489-03. x x x [T]he agency was in fact questioning the Commissioner what to do in cases x x x where the taxpayer did not wait for the lapse of the 120-day period.Citing Taganito, the Court further elaborated on this exception in the recent case of San Roque Power Corporation v. Commissioner of Internal Revenue[26] (San Roque), to wit:
Clearly, BIR Ruling No. DA-489-03 is a general interpretative rule. Thus, all taxpayers can rely on BIR Ruling No. DA-489-03 from the time of its issuance on 10 December 2003 up to its reversal by this Court in Aichi on 6 October 2010, where this Court held that the 120+30 day periods are mandatory and jurisdictional.[25]
[T]he Court further clarified the doctrines in Aichi and San Roque explaining that during the window period from 10 December 2003, upon the issuance of BIR Ruling No. DA-489-03 up to 6 October 2010, or date of promulgation of Aichi, taxpayers need not observe the stringent 120-day period.In San Roque, the claims filed by petitioner were well within the window period. The written application for tax refund/credit was filed with the CIR on March 23, 2010. When it was left unacted upon by the CIR, 98 days later or on June 29, 2010, petitioner filed a judicial claim with the CTA Second Division.
In other words, the 120+30-day period is generally mandatory and jurisdictional from the effectivity of the 1997 NIRC on 1 January 1998, up to the present. By way of an exception, judicial claims filed during the window period from 10 December 2003 to 6 October 2010, need not wait for the exhaustion of the 120-day period. The exception in San Roque has been applied consistently in numerous decisions of this Court. (Emphasis supplied)
The Court agrees with ALPI in its survey of cases which shows that BIR Ruling No. DA-489-03 was applied even though the taxpayer did not specifically invoke the same. As long as the judicial claim was filed between December 10, 2003 and October 6, 2010, then the taxpayer would not be required to wait for the lapse of the 120-day period. This doctrine has been consistently upheld in the recent decisions of the Court. x x xThe CTA, therefore, has jurisdiction over the judicial claim filed by petitioner. Taking judicial notice of the BIR Ruling and the consistent application of the same to past Court rulings, the Court holds that both the CTA Second Division and En Banc erred in denying petitioner's petition for review.
Indeed, BIR Ruling No. DA-489-03 is a general interpretative law and it applies to each and every taxpayer. To subscribe to the contention of the CIR would alter the Court's ruling in San Roque. It will lead to an unreasonable classification of the beneficiaries of BIR Ruling No. DA-489-03 and further complicate the doctrine. ALPI cannot be faulted for not specifically invoking BIR Ruling No. DA-489-03 as the rules tor its application were not definite until the San Roque case was promulgated.
In the furtherance of the doctrinal pronouncements in San Roque, the better approach would be to apply BIR Ruling No. DA-489-03 to all taxpayers who filed their judicial claim for VAT refund within the period of exception from December 10, 2003 to October 6, 2010 x x x.[29]
(A) x x x | |
(B) x x x | |
(C) | Period within which refund of input taxes shall be made. - In proper cases, the Commissioner shall grant a refund of creditable input taxes within ninety (90) days from the date of submission of the official receipts or invoices and other documents in support of the application filed in accordance with Subsections (A) and (B) hereof: Provided, That should the Commissioner find the grant of refund is not proper, the Commissioner must state in writing the legal and factual basis for the denial. |
In case of full or partial denial of the claim for tax refund, the taxpayer affected may, within thirty (30) days from the receipt of the decision denying the claim, appeal the decision with the Court of Tax Appeals: Provided, however, That failure on the part of any official, agent or employee of the BIR to act on the application within the ninety (90)-day period shall be punishable under Section 269 of this Code. x x x |