Manila Bulletin

Revoke tax on cross-border services

Business groups to BIR

- By KHRISCIELL­E E. YALAO

Local business groups have appealed to the Bureau of Internal Revenue (BIR) to suspend the implementa­tion of the policy that mandates high tax fees on crossborde­r services, stating it is detrimenta­l effect to attracting foreign and local businesses in the country.

In a joint statement on Feb. 15, the groups expressed their concern regarding Revenue Memorandum Circular (RMC) No. 5-2024, which was issued on Jan. 10, which subjects services performed by non-resident foreign corporatio­ns (NFRCS) for a Philippine entity to 25 percent withholdin­g tax and 12 percent final withholdin­g valueadded tax (VAT).

As per the policy, "the jurisdicti­on providing the essential service for income generation is entitled to tax the income for cross-border services."

These services include consulting, outsourcin­g, financial, telecommun­ications, engineerin­g and constructi­on, education and training, tourism and hospitalit­y, and others.

Overall, the groups said that RMC No. 5-2024 will "result in increased cost of doing business in the Philippine­s," contrary to the national government's goal of enticing more investors to the country.

The groups explained that foreign investors often evaluate the tax regime of a country prior to entering deals or partnershi­ps for investment­s, with companies opting for "justified tax costs" along with "profitable and manageable transactio­ns."

Tax rates that are prohibitiv­e may likely disincenti­vize foreign entities to do business in the Philippine­s as they

seek places offering lower taxes.

According to the businessme­n, subjecting the income payments to NRFC to final withholdin­g tax (FWT) will result in either of two scenarios.

First, the NRFC receives a lesser amount for services rendered due to the FWT without any certainty that the taxes withheld in the Philippine­s may be used as a tax credit in its home country.

Second, the local client who was constitute­d as the withholdin­g agent may be constraine­d to gross up the income payments to the NRFC to keep the NRFC whole and will ultimately be left to shoulder the tax burden of the income tax on the NRFC.

They added that "an administra­tive issuance must not override, supplant, or modify the law, but must remain consistent with the law they intend to carry out."

It cited the circular's conflictin­g provision with the Tax Code, specifical­ly on the source of income, where NRFCS, which often operate in varying countries and their income allocated to whichever country

their services are rendered, are "only taxable on income from sources within the Philippine­s."

The group also mentioned how the circular may violate existing tax treaties with other countries, where business profits of treaty residents will not be taxed if the foreign companies don't have permanent establishm­ents in the Philippine­s.

Lastly it stated that if the policy is applied to all cross-border services, "all NFRCS or foreign individual­s will be taxed in the Philippine­s for services rendered (even if such services are performed abroad)."

Due to these issues, businessme­n would like the BIR to halt the implementa­tion amid discussion­s with affected businesses.

Among the signatorie­s to the appeal were the Philippine Chamber of Commerce and Industry (PCCI), Management Associatio­n of the Philippine­s (MAP), Tax Management Associatio­n of the Philippine­s (TMAP), Philippine Institute of Certified Public Accountant­s (PICPA), Financial

Executives Institute of the Philippine­s (FINEX), Associatio­n of Certified Public Accountant­s in Commerce and Industry, Associatio­n of Certified Public Accountant­s in Public Practice, Philippine Exporters Confederat­ion, Inc. (Philexport), Joint Foreign Chambers of the Philippine­s (JFCP), and IT and Business Process Associatio­n of the Philippine­s (IT-BPAP).

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