CASE NO. 2011-0086: NATIONWIDE SECURITY AND ALLIED SERVICES, INC. VS. RONALD P. VALDERAMA (G.R. NO. 186614, 23 FEBRUARY 2011, NACHURA, J.) SUBJECTS: CONSTRUCTIVE DISMISSAL UPHELD; ABANDONMENT OF WORK REBUTTED; VOLUNTARY RESIGNATION DISREGARDED; TEMPORARY OFF-DETAIL MUST NOT EXCEED 6 MONTHS. (BRIEF TITLE: NATIONWIDE SECURITY VS. VALDERAMA).

SECOND DIVISION

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RESOLUTION

NACHURA, J.:

Petitioner Nationwide Security and Allied Services, Inc. (petitioner) appeals by certiorari under Rule 45 of the Rules of Court the December 9, 2008 Decision^[1] of the Court of Appeals (CA) in CA-G.R. SP No. 104966, and the February 24, 2009 Resolution^[2] denying its reconsideration.

Respondent Ronald Valderama (Valderama) was hired by petitioner as security guard on April 18, 2002.  He was assigned at the Philippine Heart Center (PHC), Quezon City, until his relief on January 30, 2006.  Valderama was not given any assignment thereafter.  Thus, on August 2, 2006, he filed a complaint for constructive dismissal and nonpayment of 13^th month pay, with prayer for damages against petitioner and Romeo Nolasco.   

Petitioner presented a different version.  It alleged that respondent was not constructively or illegally dismissed, but had voluntarily resigned.  Its version of the facts was summarized by the National Labor Relations Commission (NLRC) in this wise:

[Petitioner] x x x averred that [respondent] has committed serious violations of the security rules in the workplace.  On January 31, 2004, he was charged with conduct unbecoming for which he was required to explain.  Months after, he and four (4) other co-security guards failed to attend a mandatory seminar.  For this, he was suspended for seven (7) days.  On June 5, 2004, [respondent] displayed his discourteous and rude attitude upon his superior. He said to him in a high pitch of (sic) voice, “ano ba sir, personalan ba ito, sabihin mo lang kung ano gusto mo.” On June 8, 2004, [petitioner] required him to explain why no disciplinary action should be meted against him.

Again, on January 22, 2005, seven security guards, including [respondent], were made to explain their failure to report for duty without informing the office despite the instruction during their formation day which was held a day before. On January 31, 2006, Roy Datiles, Detachment Commander, reported that [respondent] confronted and challenged him in a high pitch and on top of his voice rudely showing discourtesy and rudeness.  Being his superior, Datiles recommended the relief of [respondent] in the detachment effective January 31, 2006.  By order of the Operations Manager, he was relieved from his post at the Philippine Heart Center.  He was directed to report to the office.  On February 10, 2006, he got his cash bond and firearm deposit.  Despite his voluntary resignation, [petitioner] sent him a letter through registered mail to report for the office and give information on whether or not he was still interested for report for duty or not. [Respondent] did not bother to reply.  Neither did he report to the office.^[3]  

After due proceedings, the Labor Arbiter (LA) rendered a decision, viz.:

          This office is of the view that [respondent] was constructively dismissed.  [Petitioner’s] defense that [respondent] voluntarily resigned on February 10, 2006 is unsubstantiated (Annex “G”). What appears on record is the pro-forma resignation dated 04 October 2004 (Annex “D”) long before this complaint was filed.  It is a basic rule in evidence that the burden of proof is on the part of the party who makes the allegation. [Petitioner] failed to discharge the burden.

            The general rule is that the filing of a complaint for illegal dismissal is inconsistent with resignation.  The Supreme Court in Shie Jie Corp. vs. National Federation of Labor, G.R. No. 153148, July 15, 2005, held:

“By vigorously pursuing the litigation of his action against petitioner, private respondent clearly manifested that he has no intention of relinquishing his employment which is, wholly incompatible [with] petitioner[’]s assertion, that he voluntarily resigned.”

In Great Southern Maritime Services Corp. vs. Acuña, G.R. No. 140189, Feb. 28, 2005, it was ruled that the execution of the alleged “resignation letters cum release and quitclaim” to support the employer’s claim that respondents voluntarily resigned is unavailing as the filing of the complaint for illegal dismissal is inconsistent with resignation.

Further it is significant to note that [respondent] was even required by [petitioner] to undergo a “Re-Training Course” conducted from February 20, 2006 to March 1, 2006 (Annex “F”).  It is not only absurd but unbelievable that [respondent] who according to [petitioner] voluntarily resigned on February 10, 2006 and yet participated in the said “Re-Training Course” after his alleged resignation.

In this case, [respondent] was not posted since he was relieved from his post on January 30, 2006 until the filing of the instant complaint on August 2, 2006 or for a period of more than six (6) months. In Valdez vs. NLRC, 286 SCRA 87, the Supreme Court held that, “However, it must be emphasized that such temporary activity should continue for six months.  Otherwise, the security agency concerned could be held liable for constructive dismissal.

This office is in accord with [respondent’s] argument that the letter sent to the latter to report for work is an absurdity considering [petitioner’s] claim that [respondent] voluntarily resigned.  x x x.^[4]

The LA disposed thus:

WHEREFORE, the foregoing considered, judgment is hereby rendered declaring [respondent] to have been constructively dismissed. [Petitioner is] ordered to reinstate [respondent] to his former position without loss of seniority rights and other benefits.  Further, [petitioner] Nationwide Security & Allied Services, Inc. is ordered to pay [respondent] the following monetary awards[:]

1.  Backwages (see computation)                   148, 125.00

2.  Prop. 13^th Month Pay

     1/06 – 1/30/06 = 97 mo.

     P450 x 30 x 1/12 x .97                                   1,091.25

     TOTAL AWARD                                       149,216.25

x x x x

SO ORDERED.^[5]

          On appeal, the NLRC modified the LA decision.  It declared that respondent was neither constructively terminated nor did he voluntarily resign.  As such, respondent remained an employee of petitioner.  The NLRC thus ordered respondent to immediately report to petitioner and assume his duty.  It also deleted the award of backwages and the order of reinstatement by the LA for lack of basis.^[6] 

          The NLRC decreed that:

            WHEREFORE, the foregoing considered, the instant appeal is PARTIALLY GRANTED deleting the award of backwages and order of reinstatement.  [Respondent] is directed to report immediately and [petitioner is] ordered to accept him.  [Petitioner is] also ordered to pay his 13^thmonth pay in the amount of P1,091.25 as ordered in the Decision.

            SO ORDERED.^[7]

Respondent filed a motion for reconsideration, but the NLRC denied it on June 11, 2008.

Respondent went to the CA via certiorari.  On December 9, 2008, the CA rendered a Decision^[8] setting aside the resolutions of the NLRC and reinstating that of the LA.  In gist, the CA sustained respondent’s claim of constructive dismissal.  It pointed out that respondent remained on floating status for more than six (6) months, and petitioner offered no credible explanation why it failed to provide a new assignment to respondent after he was relieved from PHC.  It likewise rejected petitioner’s claim that respondent voluntarily resigned, holding that no convincing evidence was offered to prove it.  The CA found it odd that respondent attended the re-training course conducted by petitioner from February 20, 2006 to March 1, 2006, if respondent indeed resigned on February 10, 2006.  The CA, therefore, ruled against the legality of respondent’s dismissal and sustained the LA’s award of backwages and order of reinstatement in favor of respondent.

The CA decreed, thus:

WHEREFORE, premises considered, the Petition is GRANTED.  The Resolutions dated 27 March 2008 and 11 June 2008 of the National Labor Relations Commission (Third Division) in NLRC NCR CASE NO. 00-08-06365-06; NLRC CA NO. 051626-07 areREVERSED and SET ASIDE.  The Decision dated 29 November 2006 of Labor Arbiter Enrique L. Flores, Jr. is hereby REINSTATED. Costs against [petitioner].

SO ORDERED.^[9]

Petitioner filed a motion for reconsideration, but the CA denied it on February 24, 2009.^[10]

Hence, this appeal by petitioner faulting the CA for sustaining respondent’s claim of constructive dismissal.

The appeal lacks merit.

In cases involving security guards, a relief and transfer order in itself does not sever employment relationship between a security guard and his agency. An employee has the right to security of tenure, but this does not give him a vested right to his position as would deprive the company of its prerogative to change his assignment or transfer him where his service, as security guard, will be most beneficial to the client. Temporary “off-detail” or the period of time security guards are made to wait until they are transferred or assigned to a new post or client does not constitute constructive dismissal, so long as such status does not continue beyond six months.^[11]

The onus of proving that there is no post available to which the security guard can be assigned rests on the employer, viz.:

When a security guard is placed on a “floating status,” he does not receive any salary or financial benefit provided by law. Due to the grim economic consequences to the employee, the employer should bear the burden of proving that there are no posts available to which the employee temporarily out of work can be assigned.^[12]

Respondent claims that he was relieved from PHC on January 30, 2006; thereafter, he was not given a new assignment. Petitioner, on the other hand, asserts that respondent refused to report to petitioner for his reassignment. Otherwise stated, petitioner claims that respondent abandoned his job. 

The jurisprudential rule on abandonment is constant.  It is a matter of intention and cannot lightly be presumed from certain equivocal acts. To constitute abandonment, two elements must concur:  (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intent, manifested through overt acts, to sever the employer-employee relationship.^[13] 

In this case, petitioner failed to establish clear evidence of respondent’s intention to abandon his employment.  Except for petitioner’s bare assertion that respondent did not report to the office for reassignment, no proof was offered to prove that respondent intended to sever the employer-employee relationship.

 Besides, the fact that respondent filed the instant complaint negates any intention on his part to forsake his work. It is a settled doctrine that the filing of a complaint for illegal dismissal is inconsistent with the charge of abandonment, for an employee who takes steps to protest his dismissal cannot by logic be said to have abandoned his work.^[14]

Similarly, we cannot accept petitioner’s argument that respondent voluntarily resigned.  

Resignation is the voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and one has no other choice but to dissociate oneself from employment. It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. As the intent to relinquish must concur with the overt act of relinquishment, the acts of the employee before and after the alleged resignation must be considered in determining whether, he or she, in fact, intended to sever his or her employment.^[15]

In Mobile Protective & Detective Agency v. Ompad^[16] and Mora v. Avesco Marketing Corporation,^[17] we ruled that should the employer interpose the defense of resignation, it is incumbent upon the employer to prove that the employee voluntarily resigned.  On this point, petitioner failed to discharge the burden.

Petitioner was also firm in asserting that respondent voluntarily resigned.  Oddly, it failed to present the alleged resignation letter of respondent.  We also note that, in its March 24, 2006 letter,^[18] petitioner required respondent to report at its office for reassignment.  It strains credulity that petitioner would require respondent to report for reassignment if the latter already tendered his resignation effective February 10, 2006.   

Petitioner capitalizes on the withdrawal of the cash and firearm bonds by respondent.  It contends that the withdrawal of bonds sufficiently proved respondent’s intention to terminate his employment contract with petitioner.  In support of its argument, petitioner cited Roberta Gaa v. Nationwide Security and Allied Services, Inc. and Romeo Nolasco,^[19] which declared that cash bond and firearm bond are never withdrawable for as long as the security guard intends to remain an employee of the security agency.

Petitioner’s reliance on Gaa is misplaced. We note that the declaration that cash bond and firearm bond are never withdrawable for as long as the security guard intends to remain an employee of the security agency was made by the NLRC.^[20]  Although this Court affirmed the NLRC in a Minute Resolution dated September 26, 2007,^[21] still, the said NLRC ruling cannot be considered a binding precedent that can be invoked by petitioner in its favor.

As explained by this Court in Philippine Health Care Providers, Inc. v.  Commissioner of Internal Revenue:^[22]

It is true that, although contained in a minute resolution, our dismissal of the petition was a disposition of the merits of the case. When we dismissed the petition, we effectively affirmed the CA ruling being questioned. As a result, our ruling in that case has already become final.  When a minute resolution denies or dismisses a petition for failure to comply with formal and substantive requirements, the challenged decision, together with its findings of fact and legal conclusions, are deemed sustained. But what is its effect on other cases?

With respect to the same subject matter and the same issues concerning the same parties, it constitutes res judicata. However, if other parties or another subject matter (even with the same parties and issues) is involved, the minute resolution is not binding precedent. Thus, in CIR v. Baier-Nickel, the Court noted that a previous case, CIR v. Baier-Nickel involving the same parties and the same issues, was previously disposed of by the Court thru a minute resolution dated February 17, 2003 sustaining the ruling of the CA. Nonetheless, the Court ruled that the previous case “ha(d) no bearing” on the latter case because the two cases involved different subject matters as they were concerned with the taxable income of different taxable years.

Besides, there are substantial, not simply formal, distinctions between a minute resolution and a decision. The constitutional requirement under the first paragraph of Section 14, Article VIII of the Constitution that the facts and the law on which the judgment is based must be expressed clearly and distinctly applies only to decisions, not to minute resolutions. A minute resolution is signed only by the clerk of court by authority of the justices, unlike a decision. It does not require the certification of the Chief Justice. Moreover, unlike decisions, minute resolutions are not published in the Philippine Reports. Finally, the proviso of Section 4(3) of Article VIII speaks of a decision. Indeed, as a rule, this Court lays down doctrines or principles of law which constitute binding precedent in a decision duly signed by the members of the Court and certified by the Chief Justice.

Accordingly, since petitioner was not a party in G.R. No. 148680 and since petitioner’s liability for DST on its health care agreement was not the subject matter of G.R. No. 148680, petitioner cannot successfully invoke the minute resolution in that case (which is not even binding precedent) in its favor.

Furthermore, the filing of the complaint belies petitioner’s claim that respondent voluntarily resigned.  As held by this Court in Valdez v. NLRC:^[23]

It would have been illogical for herein petitioner to resign and then file a complaint for illegal dismissal. Resignation is inconsistent with the filing of the said complaint.

Indubitably, respondent remained on “floating status” for more than six months.  He was relieved on January 30, 2006, and was not given a new assignment at the time he filed the complaint on August 2, 2006.  Jurisprudence is trite with pronouncements that the temporary inactivity or “floating status” of security guards should continue only for six months.  Otherwise, the security agency concerned could be liable for constructive dismissal.^[24]   The failure of petitioner to give respondent a work assignment beyond the reasonable six-month period makes it liable for constructive dismissal.  The CA was correct in sustaining respondent’s claim.

          If there is a surplus of security guards caused by lack of clients or projects, the security agency may resort to retrenchment upon compliance with the requirements set forth in the Labor Code.  In this way, the security agency will not to be held liable for constructive dismissal and be burdened with the payment of backwages.

Under Article 279^[25] of the Labor Code, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges; to his full backwages, inclusive of allowances; and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.^[26]  Therefore, the CA committed no reversible error in sustaining the LA’s award of backwages and ordering respondent’s reinstatement.

          WHEREFORE, the petition is DENIED.  The Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 104966 are AFFIRMED.

SO ORDERED.

                                      ANTONIO EDUARDO B. NACHURA

                                      Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

JOSE CATRAL MENDOZA

Associate Justice

A T T E S T A T I O N

          I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                                 ANTONIO T. CARPIO

                                              Associate Justice

                                              Chairperson, Second Division

C E R T I F I C A T I O N

          Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                     RENATO C. CORONA

                                                      Chief Justice

^[1]               Penned by Associate Justice Celia C. Librea-Leagogo, with Associate Justices Mario L. Guariña III and Sesinando E. Villon, concurring; rollo, pp. 46-63.            

^[2]               Id. at 68-69.

^[3]               Id. at 156-157.

^[4]               Id. at 110-112.

^[5]               Id. at 114-115.

^[6]               Id. at 155-159.

^[7]               Id. at 158.

^[8]               Supra note 1.

^[9]               Id. at 63.

^[10]             Supra note 2.

^[11]             Megaforce Security and Allied Services, Inc. v. Lactao, G.R. No. 160940, July 21, 2008, 559 SCRA 110, 116-117.

^[12]             Pido v. National Labor Relations Commission, G.R. No. 169812, February 23, 2007, 516 SCRA 609, 616-617.

^[13]             CRC Agricultural Trading v. National Labor Relations Commission, G.R. No. 177664, December 23, 2009, 609 SCRA 138, 148.

^[14]             Samarca v. Arc-Men Industries, Inc., 459 Phil. 506, 515 (2003).

^[15]             BMG Records (Phils.), Inc. v. Aparecio, G.R. No. 153290, September 5, 2007, 532 SCRA 300, 313-314.

^[16]             497 Phil. 621 (2005).

^[17]             G.R. No. 177414, November 14, 2008, 571 SCRA 226.

^[18]             Rollo, p. 221.

^[19]             NLRC NCR 00-08-09249-04 (CA No. 046155-05); rollo, pp. 142-153.

^[20]             Id. at 153.

^[21]             G.R. No. 179206, September 26, 2007.

^[22]             G.R. No. 167330, September 18, 2009, 600 SCRA 413, 446-447.

^[23]             349 Phil. 760, 767 (1998).

^[24]             Soliman Security Services, Inc. v. Court of Appeals, 433 Phil. 902, 910 (2002); Valdez v. NLRC, supra, at 765-766; Superstar Security Agency, Inc. v. NLRC,  G.R. No. 81493, April 3, 1990, 184 SCRA 74, 77.

^[25]             ART. 279. Security of Tenure. — In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

^[26]             Megaforce Security and Allied Services, Inc. v. Lactao, supra note 11, at 118-119.

CASE NO. 2011-0085: PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR) VS. THE BUREAU OF INTERNAL REVENUE (BIR),  REPRESENTED HEREIN BY HON. JOSE MARIO BUÑAG, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF INTERNAL REVENUE, PUBLIC RESPONDENT; JOHN DOE AND JANE DOE, WHO ARE PERSONS ACTING FOR, IN BEHALF, OR UNDER THE AUTHORITY OF RESPONDENT. PUBLIC AND PRIVATE RESPONDENTS. (G.R. NO. 172087, 15 MARCH 2011, PERALTA, J.) SUBJECTS: PAGCOR NOT EXEMPT FROM CORPORATE INCOME TAX BUT EXEMPT FROM VAT; EQUAL PROTECTION CLAUSE; NON-IMPAIRMENT OF CONTRACT CLAUSE. (BRIEF TITLE: PAGCOR VS. BIR)        

Republic of the Philippines

Supreme Court

Manila

EN BANC

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D E C I S I O N

PERALTA, J.:

 For resolution of this Court is the Petition for Certiorari and Prohibition^[1] with prayer for the issuance of a Temporary Restraining Order and/or Preliminary Injunction, dated April 17, 2006, of petitioner Philippine Amusement and Gaming Corporation (PAGCOR), seeking the declaration of nullity of Section 1 of Republic Act (R.A.) No. 9337 insofar as it amends Section 27 (c) of the National Internal Revenue Code of 1997, by excluding petitioner from exemption from corporate income tax for being repugnant to Sections 1 and 10 of Article III of the Constitution.  Petitioner further seeks to prohibit the implementation of Bureau of Internal Revenue (BIR) Revenue Regulations No. 16-2005 for being contrary to law.

The undisputed facts follow.

PAGCOR was created pursuant to Presidential Decree (P.D.) No. 1067-A^[2] on January 1, 1977.  Simultaneous to its creation, P.D. No. 1067-B^[3] (supplementing P.D. No. 1067-A) was issued exempting PAGCOR from the payment of any type of tax, except a franchise tax of five percent (5%) of the gross revenue.^[4] Thereafter, on June 2, 1978, P.D. No. 1399 was issued expanding the scope of PAGCOR’s exemption.^[5]

To consolidate the laws pertaining to the franchise and powers of PAGCOR, P.D. No. 1869^[6] was issued.  Section 13 thereof reads as follows:

Sec. 13. Exemptions. — x x x

(1) Customs Duties, taxes and other imposts on importations. – All importations of equipment, vehicles, automobiles, boats, ships, barges, aircraft and such other gambling paraphernalia, including accessories or related facilities, for the sole and exclusive use of the casinos, the proper and efficient management and administration thereof and such other clubs, recreation or amusement places to be established under and by virtue of this Franchise shall be exempt from the payment of duties, taxes and other imposts, including all kinds of fees, levies, or charges of any kind or nature.

Vessels and/or accessory ferry boats imported or to be imported by any corporation having existing contractual arrangements with the Corporation, for the sole and exclusive use of the casino or to be used to service the operations and requirements of the casino, shall likewise be totally exempt from the payment of all customs duties, taxes and other imposts, including all kinds of fees, levies, assessments or charges of any kind or nature, whether National or Local.

(2) Income and other taxes. – (a) Franchise Holder: No tax of any kind or form, income or otherwise, as well as fees, charges, or levies of whatever nature, whether National or Local, shall be assessed and collected under this Franchise from the Corporation; nor shall any form of tax or charge attach in any way to the earnings of the Corporation, except a Franchise Tax of five percent (5%)of the gross revenue or earnings derived by the Corporation from its operation under this Franchise. Such tax shall be due and payable quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or description, levied, established, or collected by any municipal, provincial or national government authority.

(b) Others: The exemption herein granted for earnings derived from the operations conducted under the franchise, specifically from the payment of any tax, income or otherwise, as well as any form of charges, fees or levies, shall inure to the benefit of and extend to corporation(s), association(s), agency(ies), or individual(s) with whom the Corporation or operator has any contractual relationship in connection with the operations of the casino(s) authorized to be conducted under this Franchise and to those receiving compensation or other remuneration from the Corporation as a result of essential facilities furnished and/or technical services rendered to the Corporation or operator.

The fee or remuneration of foreign entertainers contracted by the Corporation or operator in pursuance of this provision shall be free of any tax.

(3) Dividend Income. − Notwithstanding any provision of law to the contrary, in the event the Corporation should declare a cash dividend income corresponding to the participation of the private sector shall, as an incentive to the beneficiaries, be subject only to a final flat income rate of ten percent (10%) of the regular income tax rates. The dividend income shall not in such case be considered as part of the beneficiaries’ taxable income; provided, however, that such dividend income shall be totally exempted from income or other form of taxes if invested within six (6) months from the date the dividend income is received in the following:

(a) operation of the casino(s) or investments in any affiliate activity that will ultimately redound to the benefit of the Corporation; or any other corporation with whom the Corporation has any existing arrangements in connection with or related to the operations of the casino(s);

(b) Government bonds, securities, treasury notes, or government debentures; or

(c) BOI-registered or export-oriented corporation(s).^[7]

PAGCOR’s tax exemption was removed in June 1984 through P.D. No. 1931, but it was later restored by Letter of Instruction No. 1430, which was issued in September 1984.

On January 1, 1998, R.A. No. 8424,^[8] otherwise known as the National Internal Revenue Code of 1997, took effect. Section 27 (c) of  R.A. No. 8424 provides that government-owned and controlled corporations (GOCCs) shall pay corporate income tax, except petitioner PAGCOR, the Government Service and Insurance Corporation, the Social Security System, the Philippine Health Insurance Corporation, and the Philippine Charity Sweepstakes Office, thus:

(c) Government-owned or Controlled Corporations, Agencies or Instrumentalities. – The provisions of existing special general laws to the contrary notwithstanding, all corporations, agencies or instrumentalities owned and controlled by the Government, except the Government Service and Insurance Corporation (GSIS), the Social Security System (SSS), the Philippine Health Insurance Corporation (PHIC), the Philippine Charity Sweepstakes Office (PCSO), and the Philippine Amusement and Gaming Corporation (PAGCOR), shall pay such rate of tax upon their taxable income as are imposed by this Section upon corporations or associations engaged in similar business, industry, or activity.^[9]

With the enactment of R.A. No. 9337^[10] on May 24, 2005, certain sections of the National Internal Revenue Code of 1997 were amended.  The particular amendment that is at issue in this case is Section 1 of R.A. No. 9337, which amended Section 27 (c) of the National Internal Revenue Code of 1997 by excluding PAGCOR from the enumeration of GOCCs that are exempt from payment of corporate income tax, thus:

(c) Government-owned or Controlled Corporations, Agencies or Instrumentalities. – The provisions of existing special general laws to the contrary notwithstanding, all corporations, agencies, or instrumentalities owned and controlled by the Government, except the Government Service and Insurance Corporation (GSIS), the Social Security System (SSS), the Philippine Health Insurance Corporation (PHIC), and the Philippine Charity Sweepstakes Office (PCSO), shall pay such rate of tax upon their taxable income as are imposed by this Section upon corporations or associations engaged in similar business, industry, or activity.

Different groups came to this Court via petitions for certiorari and prohibition^[11] assailing the validity and constitutionality of R.A. No. 9337, in particular:

 1) Section 4, which imposes a 10% Value Added Tax (VAT) on sale of goods and properties; Section 5, which imposes a 10% VAT on importation of goods; and Section 6, which imposes a 10% VAT on sale of services and use or lease of properties, all contain a uniform proviso authorizing the President, upon the recommendation of the Secretary of Finance, to raise the VAT rate to 12%.  The said provisions were alleged to be violative of Section 28 (2), Article VI of the Constitution, which section vests in Congress the exclusive authority to fix the rate of taxes, and of Section 1, Article III of the Constitution on due process, as well as of Section 26 (2), Article VI of the Constitution, which section provides for the “no amendment rule” upon the last reading of a bill;

 2) Sections 8 and 12  were alleged to be violative of  Section 1, Article III of the Constitution, or the guarantee of equal protection of the laws, and Section  28 (1), Article VI of the Constitution; and

 3) other technical aspects of the passage of the law, questioning the manner  it was passed.

 On September 1, 2005, the Court dismissed all the petitions and upheld the constitutionality of R.A. No. 9337.^[12]

On the same date, respondent BIR issued Revenue Regulations (RR) No. 16-­2005,^[13]  specifically identifying PAGCOR as one of the franchisees subject to 10% VAT imposed under Section 108 of the National Internal Revenue Code of 1997, as amended by R.A. No. 9337.  The said revenue regulation, in part, reads:

Sec. 4. 108-3. Definitions and Specific Rules on Selected Services. —

x x x x

(h)  x x x

Gross Receipts of all other franchisees, other than those covered by Sec. 119 of the Tax Code, regardless of how their franchisees may have been granted, shall be subject to the 10% VAT imposed under Sec.108 of the Tax Code. This includes, among others, the Philippine Amusement and Gaming Corporation (PAGCOR), and its licensees or franchisees.

Hence, the present petition for certiorari.

PAGCOR raises the following issues:

I

WHETHER OR NOT RA 9337, SECTION 1 (C) IS NULL AND VOID AB INITIO FOR BEING REPUGNANT TO THE EQUAL PROTECTION [CLAUSE] EMBODIED IN SECTION 1, ARTICLE III OF THE 1987 CONSTITUTION.

II

WHETHER OR NOT RA 9337, SECTION 1 (C) IS NULL AND VOID AB INITIO FOR BEING REPUGNANT TO THE NON-IMPAIRMENT [CLAUSE] EMBODIED IN SECTION 10, ARTICLE III OF THE 1987 CONSTITUTION.

III

WHETHER OR NOT RR 16-2005, SECTION 4.108-3, PARAGRAPH (H) IS NULL AND VOID AB INITIO FOR BEING BEYOND THE SCOPE OF THE BASIC LAW, RA 8424, SECTION 108, INSOFAR AS THE SAID REGULATION IMPOSED VAT ON THE SERVICES OF THE PETITIONER AS WELL AS PETITIONER’S LICENSEES OR FRANCHISEES WHEN THE BASIC LAW, AS INTERPRETED BY APPLICABLE JURISPRUDENCE, DOES NOT IMPOSE VAT ON PETITIONER OR ON PETITIONER’S LICENSEES OR FRANCHISEES.^[14]

The BIR, in its Comment^[15] dated December 29, 2006, counters:

          I

SECTION 1 OF R.A. NO. 9337 AND SECTION 13 (2) OF P.D. 1869 ARE BOTH VALID AND CONSTITUTIONAL PROVISIONS OF LAWS THAT SHOULD BE HARMONIOUSLY CONSTRUED TOGETHER SO AS TO GIVE EFFECT TO ALL OF THEIR PROVISIONS WHENEVER POSSIBLE.

II

SECTION 1 OF R.A. NO. 9337 IS NOT VIOLATIVE OF SECTION 1 AND SECTION 10, ARTICLE III OF THE 1987 CONSTITUTION.

III

BIR REVENUE REGULATIONS ARE PRESUMED VALID AND CONSTITUTIONAL UNTIL STRICKEN DOWN BY LAWFUL AUTHORITIES.

The Office of the Solicitor General (OSG), by way of Manifestation In Lieu of Comment,^[16] concurred with the arguments of the petitioner. It added that although the State is free to select the subjects of taxation and that the inequity resulting from singling out a particular class for taxation or exemption is not an infringement of the constitutional limitation, a tax law must operate with the same force and effect to all persons, firms and corporations placed in a similar situation. Furthermore, according to the OSG, public respondent BIR exceeded its statutory authority when it enacted RR No. 16-2005, because the latter’s provisions are contrary to the mandates of P.D. No. 1869 in relation to R.A. No. 9337.

The main issue is whether or not PAGCOR is still exempt from corporate income tax and VAT with the enactment of R.A. No. 9337.

After a careful study of the positions presented by the parties, this Court finds the petition partly meritorious.

Under Section 1 of R.A. No. 9337, amending  Section  27 (c) of the National Internal Revenue Code of 1977,  petitioner is no longer exempt from corporate income tax as it has been effectively omitted from the list of GOCCs that are exempt from it. Petitioner argues that such omission is unconstitutional, as it is violative of its right to equal protection of the laws under Section 1, Article III of the Constitution:

Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

.

In City of Manila v. Laguio, Jr.,^[17] this Court expounded the meaning and scope of equal protection, thus:

Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances. The “equal protection of the laws is a pledge of the protection of equal laws.” It limits governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their property is concerned.

x x x x

Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause. The classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements:

  1) It must be based on substantial distinctions.

2)  It must be germane to the purposes of the law.

3)  It must not be limited to existing conditions only.

4)  It must apply equally to all members of the class.^[18]

It is not contested that before the enactment of R.A. No. 9337, petitioner was one of the five GOCCs exempted from payment of corporate income tax as  shown in  R.A. No. 8424, Section 27 (c) of which, reads:

(c) Government-owned or Controlled Corporations, Agencies or Instrumentalities. – The provisions of existing special or general laws to the contrary notwithstanding, all corporations, agencies or instrumentalities owned and controlled by the Government, except the Government Service and Insurance Corporation (GSIS), the Social Security System (SSS), the Philippine Health Insurance Corporation (PHIC), the Philippine Charity Sweepstakes Office (PCSO), and the Philippine Amusement and Gaming Corporation (PAGCOR), shall pay such rate of tax upon their taxable income as are imposed by this Section upon corporations or associations engaged in similar business, industry, or activity.^[19]

A perusal of the legislative records of the Bicameral Conference Meeting of the Committee on Ways on Means dated October 27, 1997 would show that the exemption of PAGCOR from the payment of corporate income tax was due to the acquiescence of the Committee on Ways on Means to the request of PAGCOR that it be exempt from such tax.^[20]  The records of the Bicameral Conference Meeting reveal:

HON. R. DIAZ.  The other thing, sir, is we — I noticed we imposed a tax on lotto winnings.

CHAIRMAN ENRILE.  Wala na, tinanggal na namin yon.

HON. R. DIAZ.  Tinanggal na ba natin yon?

CHAIRMAN ENRILE. Oo.

HON. R. DIAZ.  Because I was wondering whether we covered the tax on — Whether on a universal basis, we included a tax on cockfighting winnings.

CHAIRMAN ENRILE.  No, we removed the —

HON. R. DIAZ.  I . . . (inaudible) natin yong lotto?

CHAIRMAN ENRILE.  Pati PAGCOR tinanggal upon request.

CHAIRMAN JAVIER.  Yeah, Philippine Insurance Commission.

CHAIRMAN ENRILE.  Philippine Insurance — Health, health ba.  Yon ang request ng Chairman, I will accept.  (laughter)  Pag-Pag-ibig yon, maliliit na sa tao yon.

HON. ROXAS.  Mr. Chairman, I wonder if in the revenue gainers if we factored in an amount that would reflect the VAT and other sales taxes—

CHAIRMAN ENRILE.  No, we’re talking of this measure only.  We will not — (discontinued)

HON. ROXAS.  No, no, no, no, from the — arising from the exemption.  Assuming that when we release the money into the hands of the public, they will not use that to — for wallpaper.  They will spend that eh, Mr. Chairman.  So when they spend that—

CHAIRMAN ENRILE.  There’s a VAT.

HON. ROXAS.  There will be a VAT and there will be other sales taxes no.  Is there a quantification?  Is there an approximation?

CHAIRMAN JAVIER.  Not anything.

HON. ROXAS.  So, in effect, we have sterilized that entire seven billion. In effect, it is not circulating in the economy which is unrealistic.

CHAIRMAN ENRILE.  It does, it does, because this is taken and spent by government, somebody receives it in the form of wages and supplies and other services and other goods.  They are not being taken from the public and stored in a vault.

CHAIRMAN JAVIER.  That 7.7 loss because of tax exemption.  That will be extra income for the taxpayers.

HON. ROXAS.  Precisely, so they will be spending it.^[21]  

The discussion above bears out that under R.A. No. 8424, the exemption of PAGCOR from paying corporate income tax was not based on a classification showing substantial distinctions which make for real differences, but to reiterate, the exemption was granted upon the request of PAGCOR that it be exempt from the payment of corporate income tax.

With the subsequent enactment of R.A. No. 9337, amending R.A. No. 8424, PAGCOR has been excluded from the enumeration of GOCCs that are exempt from paying corporate income tax. The records of the Bicameral Conference Meeting dated April 18, 2005, of the Committee on the Disagreeing Provisions of Senate Bill No. 1950 and House Bill No. 3555, show that it is the legislative intent that PAGCOR be subject to the payment of corporate income tax, thus: 

                        THE CHAIRMAN (SEN. RECTO).  Yes, Osmeña, the proponent of the amendment.

                        SEN. OSMEÑA.  Yeah. Mr. Chairman, one of the reasons why we’re even considering this VAT bill is we want to show the world who our creditors, that we are increasing official revenues that go to the national budget. Unfortunately today, Pagcor is unofficial.

                        Now, in 2003, I took a quick look this morning, Pagcor had a net income of 9.7 billion after paying some small taxes that they are subjected to.  Of the 9.7 billion, they claim they remitted to national government seven billion.  Pagkatapos, there are other specific remittances like to the Philippine Sports Commission, etc., as mandated by various laws, and then about 400 million to the President’s Social Fund.  But all in all, their net profit today should be about 12 billion.  That’s why I am questioning this two billion.  Because while essentially they claim that the money goes to government, and I will accept that just for the sake of argument.  It does not pass through the appropriation process. And I think that at least if we can capture 35 percent or 32 percent through the budgetary process, first, it is reflected in our official income of government which is applied to the national budget, and secondly, it goes through what is constitutionally mandated as Congress appropriating and defining where the money is spent and not through a board of directors that has absolutely no accountability.

                        REP. PUENTEBELLA.  Well, with all due respect, Mr. Chairman, follow up lang.

                        There is wisdom in the comments of my good friend from Cebu, Senator Osmeña.

                        SEN. OSMEÑA.  And Negros.

                        REP. PUENTEBELLA.  And Negros at the same time ay Kasimanwa.  But I would not want to put my friends from the Department of Finance in a difficult position, but may we know your comments on this knowing that as Senator Osmeña just mentioned, he said, “I accept that that a lot of it is going to spending for basic services,”  you know, going to most, I think, supposedly a lot or most of it should go to government spending, social services and the like.  What is your comment on this?  This is going to affect a lot of services on the government side.

                        THE CHAIRMAN (REP. LAPUS).  Mr. Chair, Mr. Chair.

                        SEN. OSMEÑA.  It goes from pocket to the other, Monico.

                        REP. PUENTEBELLA.  I know that.  But I wanted to ask them, Mr. Senator, because you may have your own pre-judgment on this and I don’t blame you.  I don’t blame you.  And I know you have your own research.  But will this not affect a lot, the disbursements on social services and other?

                        REP. LOCSIN.  Mr. Chairman.  Mr. Chairman, if I can add to that question also.  Wouldn’t it be easier for you to explain to, say, foreign  creditors, how do you explain to them that if there is a fiscal gap some of our richest corporations has [been] spared [from] taxation by the government which is one rich source of revenues.  Now, why do you save, why do you spare certain government corporations on that, like Pagcor?  So, would it be easier for you to make an argument if everything was exposed to taxation?

                        REP. TEVES.  Mr. Chair, please.

                        THE CHAIRMAN (REP. LAPUS).  Can we ask the DOF to respond to those before we call Congressman Teves?

                        MR. PURISIMA.  Thank you, Mr. Chair.

                        Yes, from definitely improving the collection, it will help us because it will then enter as an official revenue although when dividends declare it also goes in as other income. (sic)

            x x x x

                        REP. TEVES.  Mr. Chairman.

x x x x

                        THE CHAIRMAN (REP. LAPUS).  Congressman Teves.

                        REP. TEVES.  Yeah.  Pagcor is controlled under Section 27, that is on income tax.  Now, we are talking here on value-added tax.  Do you mean to say we are going to amend it from income tax to value-added tax, as far as Pagcor is concerned?

                        THE CHAIRMAN (SEN. RECTO).  No. We are just amending that section with regard to the exemption from income tax of Pagcor.

                        x x x x

                        REP. NOGRALES.  Mr. Chairman, Mr. Chairman.  Mr. Chairman.

                        THE CHAIRMAN (REP. LAPUS).  Congressman Nograles.

                        REP. NOGRALES.  Just a point of inquiry from the Chair.  What exactly are the functions of Pagcor that are VATable?  What will we VAT in Pagcor?

                        THE CHAIRMAN (REP. LAPUS).  This is on own income tax.  This is Pagcor income tax.

                        REP. NOGRALES.  No, that’s why.  Anong i-va-Vat natin sa kanya. Sale of what?

x x x x

                        REP. VILLAFUERTE.  Mr. Chairman, my question is, what are we VATing Pagcor with, is it the . . .

                        REP. NOGRALES.  Mr. Chairman, this is a secret agreement or the way they craft their contract, which basis?

                        THE CHAIRMAN (SEN. RECTO).  Congressman Nograles, the Senate version does not discuss a VAT on Pagcor but it just takes away their exemption from non-payment of income tax.^[22]

Taxation is the rule and exemption is the exception.^[23] The burden of proof rests upon the party claiming exemption to prove that it is, in fact, covered by the exemption so claimed.^[24] As a rule, tax exemptions are construed strongly against the claimant.^[25]Exemptions must be shown to exist clearly and categorically, and supported by clear legal provision.^[26]

In this case, PAGCOR failed to prove that it is still exempt from the payment of corporate income tax, considering that Section 1 of R.A. No. 9337 amended Section 27 (c) of the National Internal Revenue Code of 1997 by omitting PAGCOR from the exemption.  The legislative intent, as shown by the discussions in the Bicameral Conference Meeting, is to require PAGCOR to pay corporate income tax; hence, the omission or removal of PAGCOR from exemption from the payment of corporate income tax.  It is a basic precept of statutory construction that the express mention of one person, thing, act, or consequence excludes all others as expressed in the familiar maxim expressio unius est exclusio alterius.^[27]  Thus, the express mention of the GOCCs exempted from payment of corporate income tax excludes all others.  Not being excepted, petitioner PAGCOR must be regarded as coming within the purview of the general rule that GOCCs shall pay corporate income tax, expressed in the maxim: exceptio firmat regulam in casibus non exceptis.^[28]

PAGCOR cannot find support in the equal protection clause of the Constitution, as the legislative records of the Bicameral Conference Meeting dated October 27, 1997, of the Committee on Ways and Means, show that PAGCOR’s exemption from payment of corporate income tax, as provided in Section 27 (c) of R.A. No. 8424, or the National Internal Revenue Code of 1997, was not made pursuant to a valid classification based on substantial distinctions and the other requirements of  a reasonable classification by  legislative bodies, so that the law may operate only on some, and not all, without violating the equal protection clause.  The legislative records show that the basis of the grant of exemption to PAGCOR from corporate income tax was PAGCOR’s own request to be exempted.

Petitioner further contends that Section 1 (c) of R.A. No. 9337 is null and void ab initio for violating the non-impairment clause of the Constitution.  Petitioner avers that laws form part of, and is read into, the contract even without the parties expressly saying so.  Petitioner states that the private parties/investors transacting with it considered the tax exemptions, which inure to their benefit, as the main consideration and inducement for their decision to transact/invest with it.  Petitioner argues that the withdrawal of its exemption from corporate income tax by R.A. No. 9337 has the effect of changing the main consideration and inducement for the transactions of private parties with it; thus, the amendatory provision is violative of the non-impairment clause of the Constitution.

Petitioner’s contention lacks merit.

The non-impairment clause is contained in Section 10, Article III of the Constitution, which provides that no law impairing the obligation of contracts shall be passed. The non-impairment clause is limited in application to laws that derogate from prior acts orcontracts by enlarging, abridging or in any manner changing the intention of the parties.^[29]  There is impairment if a subsequent law changes the terms of a contract between the parties, imposes new conditions, dispenses with those agreed upon or withdraws remedies for the enforcement of the rights of the parties.^[30]

As regards franchises,  Section 11, Article XII of the  Constitution^[31] provides that no franchise or right shall be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires.^[32]

In Manila Electric Company v. Province of Laguna,^[33] the Court held that a franchise partakes the nature of a grant, which is beyond the purview of the non-impairment clause of the Constitution.^[34]  The pertinent portion of the case states:

While the Court has, not too infrequently, referred to tax exemptions contained in special franchises as being in the nature of contracts and a part of the inducement for carrying on the franchise, these exemptions, nevertheless, are far from being strictly contractual in nature. Contractual tax exemptions, in the real sense of the term and where the non-impairment clause of the Constitution can rightly be invoked, are those agreed to by the taxing authority in contracts, such as those contained in government bonds or debentures, lawfully entered into by them under enabling laws in which the government, acting in its private capacity, sheds its cloak of authority and waives its governmental immunity. Truly, tax exemptions of this kind may not be revoked without impairing the obligations of contracts. These contractual tax exemptions, however, are not to be confused with tax exemptions granted under franchises.  A franchise partakes the nature of a grant which is beyond the purview of the non-impairment clause of the Constitution. Indeed, Article XII, Section 11, of the 1987 Constitution, like its precursor provisions in the 1935 and the 1973 Constitutions, is explicit that no franchise for the operation of a public utility shall be granted except under the condition that such privilege shall be subject to amendment, alteration or repeal by Congress as and when the common good so requires.^[35]

In this case, PAGCOR was granted a franchise to operate and maintain gambling casinos, clubs and other recreation or amusement places, sports, gaming pools, i.e., basketball, football, lotteries, etc., whether on land or sea, within the territorial jurisdiction of the Republic of the Philippines.^[36]  Under Section 11, Article XII of the Constitution, PAGCOR’s franchise is subject to amendment, alteration or repeal by Congress such as the amendment under Section 1 of R.A. No. 9377.   Hence, the provision in Section 1 of R.A. No. 9337, amending Section 27 (c) of R.A. No. 8424 by withdrawing the exemption of PAGCOR from corporate income tax, which may affect any benefits to PAGCOR’s transactions with private parties, is not violative of the non-impairment clause of the Constitution.

Anent the validity of RR No. 16-2005, the Court holds that the provision subjecting PAGCOR to 10% VAT is invalid for being contrary to R.A. No. 9337.  Nowhere in R.A. No. 9337 is it provided that petitioner can be subjected to VAT.  R.A. No. 9337 is clear only as to the removal of petitioner’s exemption from the payment of corporate income tax, which was already addressed above by this Court.

As pointed out by the OSG, R.A. No. 9337 itself exempts petitioner from VAT pursuant to Section 7 (k) thereof, which reads:

Sec. 7. Section 109 of the same Code, as amended, is hereby further amended to read as follows:

Section 109. Exempt Transactions. – (1) Subject to the provisions of Subsection (2) hereof, the following transactions shall be exempt from the value-added tax:

x x x x

(k) Transactions which are exempt under international agreements to which the Philippines is a signatory or under special laws, except Presidential Decree No. 529.^[37]

Petitioner is exempt from the payment of VAT, because PAGCOR’s charter, P.D. No. 1869, is a special law that grants petitioner exemption from taxes.

Moreover, the exemption of PAGCOR from VAT is supported by Section 6 of R.A. No. 9337, which retained Section 108 (B) (3) of R.A. No. 8424, thus:

[R.A. No. 9337], SEC. 6.   Section 108 of the same Code (R.A. No. 8424), as amended, is hereby further amended to read as follows:

SEC. 108.  Value-Added Tax on Sale of Services and Use or Lease of Properties. —

(A) Rate and Base of Tax. — There shall be levied, assessed and collected, a value-added tax equivalent to ten percent (10%) of gross receipts derived from the sale or exchange of services, including the use or lease of properties: x x x

x x x x

(B)  Transactions Subject to Zero Percent (0%) Rate. — The following services performed in the Philippines by VAT-registered persons shall be subject to zero percent (0%) rate;

                        x x x x

(3)  Services rendered to persons or entities whose exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects the supply of such services to zero percent (0%) rate;

                        x x x x^[38]

 As pointed out by petitioner, although R.A. No. 9337 introduced amendments to Section 108 of R.A. No. 8424 by imposing VAT on other services not previously covered, it did not amend the portion of Section 108 (B) (3) that subjects to zero percent rate services performed by VAT-registered persons to persons or entities whose exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects the supply of such services to 0% rate. 

 Petitioner’s exemption from VAT under Section 108 (B) (3) of R.A. No. 8424 has been thoroughly and extensively discussed in Commissioner of Internal Revenue v. Acesite (Philippines) Hotel Corporation.^[39]   Acesite was the owner and operator of the Holiday Inn Manila Pavilion Hotel.  It leased a portion of the hotel’s premises to PAGCOR.  It incurred VAT amounting toP30,152,892.02 from its rental income and sale of food and beverages to PAGCOR  from January 1996 to April 1997.  Acesite tried to shift the said taxes to PAGCOR by incorporating it in the amount assessed to PAGCOR.  However, PAGCOR refused to pay the taxes because of its tax-exempt status.  PAGCOR paid only the amount due to Acesite minus VAT in the sum of P30,152,892.02. Acesite paid VAT in the amount of P30,152,892.02 to the Commissioner of Internal Revenue, fearing the legal consequences of its non-payment.  In May 1998, Acesite sought the refund of the amount it paid  as VAT on the ground that its transaction with PAGCOR was subject to zero rate as it was rendered to a tax-exempt entity.  The Court ruled that PAGCOR and Acesite were both exempt from paying VAT, thus:

x x x x

PAGCOR is exempt from payment of indirect taxes

It is undisputed that P.D. 1869, the charter creating PAGCOR, grants the latter an exemption from the payment of taxes. Section 13 of P.D. 1869 pertinently provides:

Sec. 13. Exemptions. —

x x x x

(2) Income and other taxes. – (a) Franchise Holder: No tax of any kind or form, income or otherwise, as well as fees, charges or levies of whatever nature, whether National or Local, shall be assessed and collected under this Franchise from the Corporation; nor shall any form of tax or charge attach in any way to the earnings of the Corporation, except a Franchise Tax of five (5%) percent of the gross revenue or earnings derived by the Corporation from its operation under this Franchise. Such tax shall be due and payable quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or description, levied, established or collected by any municipal, provincial, or national government authority.

(b) Others: The exemptions herein granted for earnings derived from the operations conducted under the franchise specifically from the payment of any tax, income or otherwise, as well as any form of charges, fees or levies, shall inure to the benefit of and extend to corporation(s), association(s), agency(ies), or individual(s) with whom the Corporation or operator has any contractual relationship in connection with the operations of the casino(s) authorized to be conducted under this Franchise and to those receiving compensation or other remuneration from the Corporation or operator as a result of essential facilities furnished and/or technical services rendered to the Corporation or operator.

Petitioner contends that the above tax exemption refers only to PAGCOR’s direct tax liability and not to indirect taxes, like the VAT.

We disagree.

A close scrutiny of the above provisos clearly gives PAGCOR a blanket exemption to taxes with no distinction on whether the taxes are direct or indirect. We are one with the CA ruling that PAGCOR is also exempt from indirect taxes, like VAT, as follows:

Under the above provision [Section 13 (2) (b) of P.D. 1869], the term “Corporation” or operator refers to PAGCOR. Although the law does not specifically mention PAGCOR’s exemption from indirect taxes, PAGCOR is undoubtedly exempt from such taxes because the law exempts from taxes persons or entities contracting with PAGCOR in casino operations. Although, differently worded, the provision clearly exempts PAGCOR from indirect taxes. In fact, it goes one step further by granting tax exempt status to persons dealing with PAGCOR in casino operations. The unmistakable conclusion is that PAGCOR is not liable for the P30, 152,892.02 VAT and neither is Acesite as the latter is effectively subject to zero percent rate under Sec. 108 B (3), R.A. 8424. (Emphasis supplied.)

Indeed, by extending the exemption to entities or individuals dealing with PAGCOR, the legislature clearly granted exemption also from indirect taxes. It must be noted that the indirect tax of VAT, as in the instant case, can be shifted or passed to the buyer, transferee, or lessee of the goods, properties, or services subject to VAT. Thus, by extending the tax exemption to entities or individuals dealing with PAGCOR in casino operations, it is exempting PAGCOR from being liable to indirect taxes.

The manner of charging VAT does not make PAGCOR liable to said tax.

It is true that VAT can either be incorporated in the value of the goods, properties, or services sold or leased, in which case it is computed as 1/11 of such value, or charged as an additional 10% to the value. Verily, the seller or lessor has the option to follow either way in charging its clients and customer. In the instant case, Acesite followed the latter method, that is, charging an additional 10% of the gross sales and rentals. Be that as it may, the use of either method, and in particular, the first method, does not denigrate the fact that PAGCOR is exempt from an indirect tax, like VAT.

VAT exemption extends to Acesite

Thus, while it was proper for PAGCOR not to pay the 10% VAT charged by Acesite, the latter is not liable for the payment of it as it is exempt in this particular transaction by operation of law to pay the indirect tax. Such exemption falls within the former Section 102 (b) (3) of the 1977 Tax Code, as amended (now Sec. 108 [b] [3] of R.A. 8424), which provides:

Section 102. Value-added tax on sale of services.– (a) Rate and base of tax – There shall be levied, assessed and collected, a value-added tax equivalent to 10% of gross receipts derived by any person engaged in the sale of services x x x; Provided, that the following services performed in the Philippines by VAT­ registered persons shall be subject to 0%.

x x x x

(3) Services rendered to persons or entities whose exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects the supply of such services to zero (0%) rate (emphasis supplied).

The rationale for the exemption from indirect taxes provided for in P.D. 1869 and the extension of such exemption to entities or individuals dealing with PAGCOR in casino operations are best elucidated from the 1987 case of Commissioner of Internal Revenue v. John Gotamco &Sons, Inc., where the absolute tax exemption of the World Health Organization (WHO) upon an international agreement was upheld. We held in said case that the exemption of contractee WHO should be implemented to mean that the entity or person exempt is the contractor itself who constructed the building owned by contractee WHO, and such does not violate the rule that tax exemptions are personal because the manifest intention of the agreement is to exempt the contractor so that no contractor’s tax may be shifted to the contractee WHO. Thus, the proviso in P.D. 1869, extending the exemption to entities or individuals dealing with PAGCOR in casino operations, is clearly to proscribe any indirect tax, like VAT, that may be shifted to PAGCOR.^[40]

Although the basis of the exemption of PAGCOR and Acesite from VAT in the case of The Commissioner of Internal Revenue v. Acesite (Philippines) Hotel Corporation was Section 102 (b) of the 1977 Tax Code, as amended, which section was retained as Section 108 (B) (3) in R.A. No. 8424,^[41]  it is still applicable to this case, since the provision relied upon has been retained in R.A. No. 9337.^[42]

It is settled rule that in case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails, because the said rule or regulation cannot go beyond the terms and provisions of the basic law.^[43]    RR No. 16-2005, therefore, cannot go beyond the provisions of R.A. No. 9337.  Since PAGCOR is exempt from VAT under R.A. No. 9337, the BIR exceeded its authority in subjecting PAGCOR to 10% VAT under RR No. 16-2005; hence, the said regulatory provision is hereby nullified.

WHEREFORE, the petition is PARTLY GRANTED.   Section 1 of Republic Act No. 9337, amending Section 27 (c)  of the National Internal Revenue Code of 1997, by excluding petitioner Philippine Amusement and Gaming Corporation from the enumeration of government-owned and controlled corporations exempted from corporate income tax is valid and constitutional, while BIR Revenue Regulations No. 16-2005 insofar as it subjects PAGCOR to 10% VAT is null and void for being contrary to the National Internal Revenue Code of 1997, as amended by Republic Act No. 9337.

No costs.

SO ORDERED.

                                                        DIOSDADO M. PERALTA

                                                                   Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

^*              On official leave.

^[1]               Under Rule 65 of the Rules of Court.

^[2]              CREATING THE PHILIPPINE AMUSEMENTS AND GAMING CORPORATION, DEFINING ITS POWERS AND FUNCTIONS, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES.

^[3]              GRANTING THE PAGCOR A FRANCHISE TO ESTABLISH, OPERATE AND MAINTAIN GAMBLING CASINOS ON LAND OR WATER WITHIN THE TERRITORIAL JURISDICTION OF THE REPUBLIC OF THE PHILIPPINES. 

^[4]                      Section 4 of P.D. No. 1067-B, provides:

                Section 4. Exemptions. —

                (1) Duties, taxes and other imposts on importations. – All importations of equipment, vehicles, boats, ships, barges, aircraft and other gambling paraphernalia or facilities for the sale and exclusive use of the casinos, clubs and other recreation or amusement places to be established under and by virtue of this Franchise shall be exempt from the payment of duties, taxes and other imports.

(2) Income and other taxes. – No income or any other form shall be assessed and collected under this Franchise from the franchise holder; nor shall any form of tax or charge attach in any way to the earnings of the franchise holder, EXCEPT a Franchise Tax of five percent (5%) of the gross revenue or earnings derived by the franchise holder from its operation under this Franchise. Such tax shall be due and payable quarterly to the National Government and shall be in lieu of all taxes of any kind, nature or description, levied, established, or collected by any municipal, provincial or National authority.  (Emphasis supplied.)

^[5]              Section 3, P.D. No. 1399, in part, reads:

                Section 3. Section 4 of Presidential Decree No. 1067-B is hereby amended to read as follows:

Section 4. Exemptions. — x x x

(1)                 Duties, taxes and other imposts on importation. – x x x

(2)                 Income and other taxes. —

(a) Franchise Holder: No tax of any kind or form, income or otherwise, as well as fees, charges, or levies of whatever nature, shall be assessed and collected under this Franchise from the Franchise Holder; nor shall any form of tax or charge attach in any way to the earnings of the Franchise Holder, except a Franchise Tax of five percent (5 %) of the gross revenue or earnings derived by the Franchise Holder form  its operation under this Franchise. Such tax shall be due and payable to the National Government and shall be in lieu of all taxes, levies, fees or assessments of any kind, nature or description, levied, established, or collected by any municipal, provincial or national authority.

(b) Others: The exemption herein granted for earnings derived from the operations conducted under the franchise, specifically from the payment of any tax, income or otherwise, as well as any form of charges, fees or levies, shall inure to the benefit of and extend to corporation/s, association/s, agency/ies, or individual/s with whom the Franchise has any contractual relationship in connection with the operations of the casino/s authorized to be conducted under the franchise and to those receiving compensation or other remuneration from the Franchise Holder as a result of essential facilities furnished and/or technical services rendered to the Franchise Holder. (Emphasis supplied.)

^[6]              CONSOLIDATING AND AMENDING PRESIDENTIAL DECREE NOS. 1067-A, 1067-B, 1067-C, 1399 AND 1632, RELATIVE TO THE FRANCHISE AND POWERS OF THE PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR).

^[7]              Emphasis supplied.

^[8]                      AN ACT AMENDING THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES.

^[9]              Emphasis supplied.

^[10]                    AN ACT AMENDING SECTIONS 27, 28, 34, 106. 107, 108, 109, 110, 111, 112, 113, 114, 116, 117, 119, 121, 148, 151, 236, 237, AND  288  OF THE NATIONAL INTERNAL REVENUE CODE OF  1997, AS AMENDED, AND FOR OTHER PURPOSES.

^[11]                    G.R. Nos. 168056, 168207, 168461, 168463 and 168730.

^[12]                    See Abakada Guro Party List v. Ermita, 506 Phil. 1 (2005).

^[13]           Revenue Regulations No. 16-2005 states: “Pursuant to the provisions of Secs. 244 and 245 of the National Internal Revenue Code of 1997, as last amended by Republic Act No. 9337 (Tax Code), in relation to Sec. 23 of the said Republic  Act, these Regulations are hereby promulgated to implement Title IV of the Tax Code, as well as other provisions pertaining to Value-Added Tax (VAT).  These Regulations supersedes Revenue Regulations No. 14-2005 dated June 22, 2005.”          

^[14]             Rollo,  pp. 18-19; 318-319.

^[15]              Id. at 230-260.

^[16]              Id. at 190-222.

^[17]              495 Phil. 289 (2005).

^[18]            Id. at 326, citing Ichong v. Hernandez, 101 Phil. 1155 (1957), 16B Am Jur. 2d § 779 299, citing State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208 (1938), reh’g denied, 305 U.S. 676, 59 S. Ct. 356, 83 L. Ed. 437 (1939) and mandate conformed to, 344 Mo. 1238, 131 S.W. 2d 217 (1939), Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855, 109 Ed. Law Rep. 539, 70 Fair Empl. Prac. Cas. (BNA) 1180, 68 Empl. Prac. Dec. (CCH) 44013 (1996), Walker v. Board of Supervisors of Monroe County, 224 Miss. 801, 81 So. 2d 225 (1955), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955); Preisler v. Calcaterra, 362 Mo. 662, 243 S.W. 2d 62 (1951); Smith, Bell & Co. v. Natividad, 40 Phil. 136, 145 (1919):Nuñez v. Sandiganbayan, 197 Phil. 407 (1982); Cruz, Isagani A., Constitutional Law 125 (1998) and People v. Cayat,  68 Phil. 12 (1939).

^[19]             Emphasis supplied.

^[20]              Emphasis supplied.

^[21]              Emphasis supplied.

^[22]             Emphasis supplied.

^[23]              National Power Corporation  v. Province of Isabela, G.R. No. 165827, June 16, 2006, 491 SCRA 169, 180.

^[24]              Id.

^[25]              National Power Corporation v. City of Cabanatuan, 449 Phil. 233, 259 (2003).

^[26]              Id.

^[27]              Id.; Ruben E. Agpalo, Statutory Construction, Fifth Edition, © 2003, p. 222.

^[28]              C.N. Hodges v. Municipal Board, Iloilo City,  et al.,125 Phil. 442, 449 (1967); Ruben E. Agpalo, Statutory Construction, Fifth Edition, © 2003, pp. 222-223.

^[29]       BANAT Party-list v. COMELEC, G.R. No. 177508, August 7, 2009, 595 SCRA 477, 498, citing Serrano v. Gallant Maritime  Services, Inc., 582 SCRA 254 (2009).

^[30]                    Id., citing Clemons v. Nolting, 42 Phil. 702 (1922).

^[31]              The Constitution, Art. XII, Sec. 11.  No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate or authorization be exclusive in character or for a longer period than fifty years.  Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires.  The State shall encourage equity participation in public utilities by the general public.   The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines. (Emphasis supplied.)

^[32]              Emphasis supplied.

^[33]              366 Phil. 428 (1999).

^[34]              Id. at 438. (Emphasis supplied.)

^[35]              Id. at 438-439. (Emphasis supplied.)

^[36]              See P.D. No. 1869, Sec. 10.

^[37]                    Emphasis supplied.

^[38]             Emphasis supplied.

^[39]                    G.R. No. 147295, February 16, 2007, 516 SCRA 93, 101, citing Commissioner of Internal Revenue v. John Gotamco & Sons, Inc., 148 SCRA 36 (1987).

^[40]              Id. at 98-101. (Emphasis supplied.)

^[41]             R.A. No. 8424, SEC. 108.  Value-Added Tax on Sale of Services and Use or Lease of Properties. — x x x

                 Rate and Base of Tax. — There shall be levied, assessed and collected, a value-added tax equivalent to ten percent (10%) of gross receipts derived from the sale or exchange of services, including the use or lease of properties.

The phrase “sale or exchange of services” means the performance of all kinds of services in the Philippines for others for a fee, remuneration or consideration, including those performed or rendered by xxx services of franchise grantees of telephone and telegraph, radio and television broadcasting and all other franchise grantees except those under Section 119 of this Code; x x x

x x x x

(B)  Transactions Subject to Zero Percent (0%) Rate.—The following services performed in the Philippines by VAT-registered persons shall be subject to zero percent (0%) rate;

x x x x

(3)  Services rendered to persons or entities whose exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects the supply of such services to zero percent (0%) rate;

x x x x (Emphasis supplied.)

^[42]             Section 6  of R.A. No. 9337states:

                SEC. 6.   Section 108 of the same Code, as amended, is hereby further amended to read as follows:

SEC. 108.  Value-Added Tax on Sale of Services and Use or Lease of Properties. —

(A) Rate and Base of Tax— There shall be levied, assessed and collected, a value-added tax equivalent to ten percent (10%) of gross receipts derived from the sale or exchange of services, including the use or lease of properties x x x

  x x x x

(B)  Transactions Subject to Zero percent (0%) Rate.—The following services performed in the Philippines by VAT-registered persons shall be subject to zero percent (0%) rate;

  x x x x

(3)  Services rendered to persons or entities whose exemption under special laws or international agreements to which the Philippines is a signatory effectively subjects the supply of such services to zero percent (0%) rate;

x x x x (Emphasis supplied.)

^[43]             Hijo Plantation, Inc.  v. Central Bank, 247 Phil. 154, 162 (1988), citing People v. Lim, 108 Phil. 1091 (1960).