PSALM CORPORATION - v - CIR
EN BANC, G.R. No. 198146, August 08, 2017, CARPIO, J.
Facts:
1. Petitioner Power Sector Assets and
Liabilities Management Corporation (PSALM) is a government-owned and controlled
corporation created under Republic Act No. 9136 (RA 9136), also known as the
Electric Power Industry Reform Act of 2001 (EPIRA). The principal purpose
of PSALM is to manage the orderly sale, disposition, and privatization of the
National Power Corporation (NPC) generation assets, real estate and other
disposable assets, and Independent Power Producer (IPP) contracts with the
objective of liquidating all NPC financial obligations and stranded contract
costs in an optimal manner.
2. PSALM conducted public biddings for the privatization of the Pantabangan-Masiway Plant and Magat Plant, respectively. Consequently, NPC received a letter from the BIR demanding immediate payment of P3,813,080,472 deficiency VAT for the sale of the Pantabangan-Masiway Plant and Magat Plant. The NPC indorsed BIR's demand letter to PSALM.
2. PSALM conducted public biddings for the privatization of the Pantabangan-Masiway Plant and Magat Plant, respectively. Consequently, NPC received a letter from the BIR demanding immediate payment of P3,813,080,472 deficiency VAT for the sale of the Pantabangan-Masiway Plant and Magat Plant. The NPC indorsed BIR's demand letter to PSALM.
3. The BIR, NPC, and PSALM executed a
Memorandum of Agreement (MOA). PSALM filed
with the DOJ a petition for the adjudication of the dispute with the BIR to
resolve the issue of whether the sale of the power plants should be subject to
VAT. The DOJ ruled in favor of PSALM.
4. The BIR moved for reconsideration,
alleging that:
a.
DOJ
had no jurisdiction since the dispute involved tax laws administered by the BIR
and therefore within the jurisdiction of the CTA.
b.
The
sale of the subject power plants by PSALM to private entities is in the course
of trade or business, as contemplated under Section 105 of the NIRC of 1997,
which covers incidental transactions and thus, subject to VAT.
DOJ denied BIR's Motion for Reconsideration.
5. CIR filed with the CA a petition for
certiorari, seeking to set aside the DOJ's decision for lack of jurisdiction.
CA dismissed the petition for failure to attach the relevant pleadings and
documents.
6. Upon motion for reconsideration, the CA
reinstated the petition and held that the petition filed by PSALM with the DOJ
was really a protest against the assessment of deficiency VAT, which under
Section 204 of the NIRC of 1997 is within the authority of the CIR to
resolve. PSALM's objective in filing the petition was to recover the
P3,813,080,472 VAT which was allegedly assessed erroneously and which PSALM
paid under protest to the BIR.
7. PSALM moved for reconsideration, which
the CA denied. Hence, this petition.
Issues:
1. Whether or not
the Secretary of Justice has jurisdiction over the case.
2. Whether or not
the sale of the power plants is subject to VAT.
Ruling:
1. Yes, DOJ is vested by law with
jurisdiction over this case. This case involves a dispute between PSALM and
NPC, which are both wholly government- owned corporations, and the BIR,
a government office, over the imposition of VAT on the sale of the two power
plants. There is no question that original jurisdiction is with
the CIR, who issues the preliminary and the final tax assessments. However, if
the government entity disputes the tax assessment, the dispute is already
between the BIR (represented by the CIR) and another government entity, in this
case, the petitioner PSALM.
- Under Presidential Decree No. 242 (PD 242), all disputes and claims solely between
government agencies and offices, including government-owned or controlled
corporations, shall be administratively
settled or adjudicated by the Secretary of Justice, the Solicitor General,
or the Government Corporate Counsel, depending on the issues and government
agencies involved. As
regards cases involving only questions of law, it is the Secretary of Justice
who has jurisdiction. Sections 1, 2, and 3 of PD 242 use of the word
"shall" in a statute connotes a
mandatory order or an imperative obligation.
- The first paragraph of Section 4 of the
1997 NIRC provides that the power of the CIR to interpret the NIRC provisions
and other tax laws is subject to review by the Secretary of Finance, who is
the alter ego of the President. The second paragraph of Section 4 of the
1997 NIRC, providing for the exclusive appellate jurisdiction of the CTA as
regards the CIR's decisions on matters involving disputed assessments, refunds
in internal revenue taxes, fees or other charges, penalties imposed in relation
thereto, or other matters arising under NIRC, is in conflict with PD 242. To
harmonize Section 4 of the 1997 NIRC with PD 242, the following interpretation
should be adopted:
(1) As regards private
entities and the BIR, the power to decide disputed assessments, refunds of
internal revenue taxes, fees or other charges, penalties in relation thereto,
or other matters arising under the NIRC or other laws administered by the BIR
is vested in the CIR subject to the exclusive appellate jurisdiction of the
CTA, in accordance with Section 4 of the NIRC; and
(2) Where the disputing
parties are all public entities (covers disputes between the BIR
and other government entities), the case shall be governed by PD 242.
- 1997 NIRC is a general law governing the
imposition of national internal revenue taxes, fees, and charges. On the
other hand, PD 242 is a special law that applies only to disputes involving
solely government offices, agencies, or instrumentalities. Even if
the 1997 NIRC, a general statute, is a later act, PD 242, which is a special
law, will still prevail and is treated as an exception to the terms of the 1997
NIRC with regard solely to intra-governmental disputes.
2. No, since the disposition or sale of the
assets is a consequence of PSALM's mandate to ensure the orderly sale or
disposition of the property and thereafter to liquidate the outstanding loans and
obligations of NPC, utilizing the proceeds from sales and other property
contributed to it, including the proceeds from the Universal Charge, and not
conducted in pursuit of any commercial or profitable activity, including
transactions incidental thereto, the same will be considered an
isolated transaction, which will therefore not be subject to VAT.
- PSALM, a government-owned and controlled
corporation, was created under the EPIRA law to manage the orderly sale and
privatization of NPC assets with the objective of liquidating all of NPC's
financial obligations in an optimal manner. Clearly, NPC and PSALM have
different functions. Since PSALM is not a successor-in-interest of NPC, the
repeal by RA 9337 of NPC's VAT exemption does not affect PSALM.
- PSALM is limited to selling only NPC
assets and IPP contracts of NPC. The sale of NPC assets by PSALM is not
"in the course of trade or business" but purely for the specific
purpose of privatizing NPC assets in order to liquidate all NPC financial
obligations. It is very clear that the sale of the power plants was an exercise of a
governmental function mandated by law for the primary purpose of privatizing
NPC assets in accordance with the guidelines imposed by the EPIRA law.
- Unlike the Mindanao II case,
the power plants in this case were not previously used in PSALM's business. The
power plants, which were previously owned by NPC were transferred to PSALM for
the specific purpose of privatizing such assets. The sale of the power plants
cannot be considered as an incidental transaction made in the course of NPC's
or PSALM's business. Therefore, the sale of the power plants should not be
subject to VAT.
