[ , January 24, 1995 ]
RULES AND REGULATIONS TO IMPLEMENT THE TAX INCENTIVES PROVISIONS UNDER PARAGRAPHS (B) & (C) OF SECTION 12, REPUBLIC ACT NO. 7227 OTHERWISE KNOWN AS THE BASES CONVERSION AND DEVELOPMENT ACT OF 1992
SECTION 2. Declaration of Policy - Within the framework and subject to the mandate of the Constitution and the pertinent provisions of the Local Government Code of 1991, it is hereby declared the policy of the State to develop the Subic Special Economic Zone into a self-sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the Zone, and to attract and promote productive foreign investments.
SECTION 3. Definitions - For purposes of these Regulations, the terms used herein shall be construed to have the following meanings:
a. Act- refers to RA 7227 otherwise known as the Bases Conversion and Development Act of 1992.
b. SBMA - refers to the Subic Bay Metropolitan Authority, established and created pursuant to Section 13 of the Act.
c. Zone - refers to the Subic Special Economic and Freeport Zone (SSEFZ), outside the Customs Territory and the authority of the customs laws, consisting of the City of Olongapo and the municipality of Subic, Province of Zambales, the lands occupied by the Subic Bay Naval Base and its contiguous extensions, embraced, covered, and defined by the 1947 Philippine U.S. Military Base Agreement, whose metes and bounds shall be delineated in a Proclamation to be issued by the President of the Republic of the Philippines, (or any portion of the foregoing designated by the Subic Bay Metropolitan Authority as an area to which duty and tax-free benefits are limited pending the establishment of a secured perimeter around the entire Zone.)
d. Secured Area - refers to the presently fenced-in former Subic Naval Base which shall be the only completely tax and duty-free area in the Zone and within which there shall be a free and unimpeded flow of goods and merchandise from one registered enterprise to another or to residents and along the boundaries of the area shall be set up a Customs checkpoint through which goods authorized to leave or enter the Secured Area for some destination inside or outside the Zone must pass. The boundaries of the secured area may be readjusted from time to time jointly by the SBMA and the Department of Finance as the requirements of the business in the Zone may demand or permit.
e. Customs - means the Philippine Bureau of Customs
f. Customs Territory - refers to the portion of the Republic of the Philippines where the customs laws are in force and effect, which is separate from the Zone.
g. Articles - refers to any goods, wares, merchandise and in general, anything that may, under the Tariff and Customs Code of the Philippines, as amended, be made the subject of importation or exportation.
h. Domestic Articles - refers to articles which are the growth, product, or manufacture of the Philippines on which all national internal revenue taxes have been paid, if subject thereto, and upon which no drawback or bounty has been allowed; and articles of foreign origin on which all duties and taxes have been paid and upon which no drawback or bounty has been allowed, or which have previously been entered into Customs Territory free of duties or taxes.
i. Foreign Articles - refers to articles of foreign origin on which duties and taxes have not been paid, or if paid, upon which drawback or a bounty has been allowed, or which have not previously been entered into Customs Territory; or articles which are the growth, product, or manufacture of the Philippines on which not all national internal revenue taxes have been paid, if subject thereto, or if paid, upon which drawback or a bounty has been allowed.
j. Resident - refers to any individual who is registered and authorized by the SBMA to establish and maintain a personal residence in the Secured Area of the Zone.
k. Registered Enterprise - refers to any corporation registered with the SBMA to do business in the Secured Area of the Zone.
l. Transshipment - refers to transshipment of articles discharged at ports or airports of entry located in Customs territory destined for delivery to the Zone, and articles coming from the latter intended for export thru a Philippine Customs port/airport of entry may be transported under bond, upon examination, and consigned to the Collector at the port of destination/export who will allow the consignor or consignee, as the case may be, to make entry for exportation.
m. Retail Sale - refers to the sale of articles in the Secured Area of the Zone, in small quantities to an individual for his or her own personal use and account and not for resale.
n. Foreign Exchange - shall mean any currency other than the Philippine Peso acceptable for international reserve or authorized for international transaction by the Central Bank of the Philippines.
o. Gross Income Earned - refers to gross sales or gross revenues derived from the business activity within the zone, net of sales discounts and sales returns and allowances and minus costs of sales or direct costs but before any deduction for administrative expenses or incidental losses during a given taxable period. For financial enterprises, gross income shall include interest income, gains from sales, and other income, net of allowable deductions. The following deductions shall be allowable for the calculation of gross income earned for specific types of enterprises:
1. Trading and manufacturing enterprises
Direct salaries, wages or labor expenses
Production supervision salaries
Raw materials used in the manufacture of products
Goods in process (Intermediate goods)
Finished goods
Supplies and fuels used in productionDepreciation of machineries and equipment used in Rent and utility charges associated with building, equipment and warehouses, or handling of goods Financing charges associated with fixed assets 2. Service enterprises Direct salaries, wages or labor expense
Service supervision salariesDirect materials, supplies used or resold to another SBMA registered enterprise Depreciation of machineries, equipment and buildings owned and/or constructed Financing charges associated with fixed Assets Rent and utility charges for buildings and capital equipment 3. Financial Institutions Depreciation Financing Charges associated with fixed assets Rent and utility charges
SECTION 4. Exemptions and Incentives-
A. All SBMA registered enterprises doing business within the Secured Area in the Zone shall enjoy the following:
a. Exemption from customs and import duties and national internal revenue taxes on importations of raw materials for manufacture into finished products and capital goods and equipment needed for their business operation within the Secured Area. Consumption items, however, must be consumed within the Secured Area. Removal of raw materials, capital goods, equipment and consumer items out of the Secured Area for sale to non-SBMA registered enterprises shall be subject to the usual taxes and duties, except as may be provided herein:
a.1 Residents of the ZONE living outside the Secured Area can enter the Secured Area and consume any quantity of consumption items in hotels and restaurants within the Secured Areas. However, these residents can purchase and bring out of the Secured Area to other parts of Philippine territory tax and duty free, consumer items worth not exceeding US$100 per month per person. Only residents age 15 and over are entitled to this privilege.
a.2 Filipinos not residing within the ZONE can enter the Secured Area and consume any quantity of consumption items in hotels and restaurants within the Secured Area. However, they can purchase and bring out of the Secured Area to other parts of the Philippine territory tax and duty free consumer items worth not exceeding US$200 per year per person. Only Filipinos age 15 and over are entitled to this privilege.
a.3 There shall be no pooling, tacking, or advance use of the US$100 or US$200 entitlement which is a privilege similar to the entitlement enjoyed by returning residents who shop at existing government-owned tourist duty-free shops.
a.4 The sale of tax and duty-free consumer items in the Secured Area shall only be allowed in duly authorized duty-free shops. Duty-free shops shall be subject to the joint regulations of the Bureau of Customs and the SBMA to insure proper accounting of imports and sales.
a.5 Foreign tourists, balikbayans and returning residents (from abroad) passing through the Secured Area shall be entitled to the same prevailing tax and duty-free privileges they presently enjoy. However, the selling of duty and tax free goods to individuals and returning residents shall be held in abeyance pursuant to E.O. 97-A until a control system shall have been approved by the SBMA and Customs authorities as a condition precedent to a duty free outlet being allowed to operate.
a.6 A control system shall be set up by duty-free shop operators at their own expense. This system shall be approved by the SBMA and Customs authorities before any duty-free outlet is permitted to operate.
In the meantime that control measures have not been defined and set in place, the SBMA shall order duty free shops located within the Secured Area to desist from further selling duty and tax free goods to individuals other than tourist balikbayans and returning residents.
a.7 The SBMA shall install a computerized identification system to insure compliance with the guidelines governing the SSEFPZ particularly the Secured Area.
b. Exemption from the internal revenue taxes, such as gross receipts tax, VAT, ad valorem and excise taxes on their sales of goods and services for which they shall otherwise have been directly liable.
c. Exemption from franchise, common carrier or value added taxes and other percentage taxes on public and service utilities and enterprises within the Secured Area in the Zone.
d. Preferential income tax treatment on income earned/derived from business operations within the Secured Area or from foreign sources. However, in the case of telecommunications service, the income of the enterprise within the Secured Area shall be net of the share of the foreign telecommunications company, and in the case of common carriers by land, air or water, only that portion of the income and expenses for the transport of cargoes and passengers within the Secured Area shall be covered by the preferential income tax treatment and what is not covered shall be subject to the regular corporate income tax.
e. Purchases of raw materials, capital goods and equipment and services by the SBMA and SBF accredited enterprises from enterprises in the Customs Territory shall be considered effectively zero-rated for VAT purposes. However, the VAT registered enterprises in the Customs Territory shall apply for effective zero-rating of their sales of goods and services to SBMA and to SBF enterprises pursuant to Revenue Regulations No. 5-87 as amended.
f. Registered Enterprises may generate income from sources within the Customs Territory of up to Thirty Percent (30%) of its total income from all sources; provided, that should the registered Enterprise s income from sources within the Customs Territory exceed Thirty Percent (30%) of its total income from all sources, then the entire income from within the Customs Territory and the Secured Area shall be subject to the internal revenue laws of the Customs Territory.
g. Carriers who undertake the transshipment of articles to and/or from the Secured Area to a Customs Bonded warehouse within the Customs Territory shall be bonded in an amount to be determined by the SBMA and Bureau of Customs which shall not be less than fifty thousand (P 50,000) pesos conditioned that the carrier shall transport and deliver without delay, and in accordance with rules and regulations in effect in the Customs Territory, to the Collector of Customs at the port of destination/export. The provisions of the Tariff and Customs Code, as amended, on transshipment, and its implementing regulations shall govern cases of transshipment for foreign articles to and/or from the Secured Area.
h. Articles which are manufactured in the Secured Area and exported therefrom to a foreign country shall, upon subsequent importation into customs territory, be subject to the import laws applicable to like articles manufactured in a foreign country.
B. Business enterprises operating within the Secured Area, but which are not registered by or accredited with SBMA, shall not be entitled to the preferential income tax treatment provided for in the Act.
SECTION 5. Notwithstanding the above-mentioned tax and duty exemptions, foreign articles removed, withdrawn or otherwise disposed to the customs territory, shall be subject to the payment of customs duties and internal revenue taxes as ordinary importations in accordance with the provisions of the Tariff and Customs Code of the Philippines, as amended and National Internal Revenue Code and other applicable laws. Articles removed to Customs territory will be presumed to be foreign unless there is sufficient evidence presented to satisfy Customs officials that they are domestic articles, as defined in these regulations.
a. Articles which are admitted to the Secured Area from the Customs territory under proper permit shall be considered to be effectively zero-rated. Articles which under proper permit are returned to the Customs territory from the Secured Area shall be considered imported.
b. Foreign articles to be used in the production, manufacture, processing of finished products may be brought from the Secured Area to designated Special Economic Zones, Bonded Warehouses, Export Processing zones, or under other duty or tax-exempt treatment in the Customs Territory by accredited subcontractors under bond acceptable to the SBMA and the Bureau of Customs which shall not be less than fifty thousand pesos (P 50,000) to guaranty the return of the finished goods to the Secured Area, for export or for sale within the Secured Area and to protect government revenues.
c. Foreign articles sold by enterprises established within the Secured Area to residents of the Secured Area and to travelers, tourists, and investors under Section 12 (g) of the Act shall be exempt from duties and taxes provided that they are actually exported to a foreign country upon their departure or are actually consumed within the Secured Area.
d. Foreign articles purchased within the Secured Area worth not exceeding US$200, and brought out of the Secured Area and entered into the Customs Territory for personal use shall not be subject to customs duties and taxes as ordinary importations, provided that this privilege shall be availed of only once a year.
e. Foreign articles withdrawn, transported or taken in commercial quantities from the Secured Area to the Customs Territory without payment of duties and taxes shall be subject to seizure and forfeiture pursuant to the pertinent provisions of the Tariff and Customs Code and the National Internal Revenue Code, without prejudice to the criminal/administrative actions that may be instituted against the person/persons liable/responsible therefor.
SECTION 6. Taxes and Fiscal Obligations - Obligations and Liabilities.
a. Pursuant to Section 12 (c) of the Act, registered enterprises within the Secured Area in the Zone shall, in lieu of local and national taxes, be liable to the payment of the following, based on gross income earned.
1. To the National Government....................................
2. To the Local Government units affected by the declaration of the Zone.............................................
3. To the Special Development Fund to be utilized for the development of municipalities outside the City of Olongapo and the Municipality of Subic and other municipalities contiguous to the base area ........................................
b. The equivalent amount of 3% of gross income earned as defined in Section 3(o) of these Regulations, paid/payable to the National Government of the Philippines, shall be considered for purposes of any claim for credit against taxes paid to foreign government by the foreign corporation accredited by the SBMA to operate within the Secured Area.
c. Registered enterprises operating within the Secured Area shall be responsible for the safekeeping and accounting of all articles received by them and shall be relieved from responsibility for the articles upon removal under proper permit from the Secured Area, transfer to another registered enterprise or to a Secured Area resident, destruction in the Secured Area or abandonment to the SBMA in the Secured Area.
Articles which are missing or cannot be accounted for in the Secured Area shall be presumed to have been transferred to the Customs Territory without permit and therefor subject to taxes and duties. Articles which are found in the Secured Area but cannot be accounted for in the records of a registered enterprise shall be treated as having been received in the Secured Area without permit and therefore should be reported to the SBMA and the Bureau of Customs.
d. Registered enterprises operating in the Secured Area and registered residents are responsible for compliance with the provisions of any Operations Manual issued by the SBMA or Customs Authority, and any such Manual shall have the same force and effect as these regulations.
e. A registered enterprise operating within the Secured Area shall be constituted as withholding agent for the government (i) if it acts as an employer and its employees received compensation income subject to the withholding tax under Sec. 72(a), Chapter X, Title II of the NIRC as implemented by Revenue Regulations No. 12-86 as amended, or (ii) if it makes income payments to individuals or corporations subject to the expanded withholding tax pursuant to Sec. 50 (b) of the NIRC, as amended, and as implemented by Revenue Regulations No. 6-85 as amended; or (iii) if it makes payment/remittance of certain income subject to the final withholding tax under Sec. 50 (a) in relation to Sec. 51 of the NIRC.
f. Interest from any Philippine currency bank deposits and yield or any other monetary benefit from deposit substitutes, and from trust fund and similar arrangements received by a registered enterprise engaged in business within the Secured Area shall be subject to the preferential tax rate. All other interest, yield or monetary benefit from deposit substitutes, trust funds and other similar arrangements and royalties derived from sources within the Philippines by a person other than a registered enterprise operating within the Secured Area in the Zone shall be subject to the appropriate tax law rates of the Customs Territory.
SECTION 7. Returns and Payment of Tax - The total amount representing 5% of the gross income earned by the registered enterprise from the operation of its business activity within the Secured Area in the Zone shall be paid and remitted to the Commissioner of Internal Revenue or his duly authorized agent on or before the 15th day of the fourth month following the close of its taxable year.
a. Requirements - Every registered enterprise operating within the Secured Area subject to the 5% on gross income earned prescribed in Section 12(c) of the Act, shall render in duplicate a true and accurate quarterly return and final or adjustment return in accordance with the provisions of Sections 68 and 69, Chapter IX, Title II of the National Internal Revenue Code (NIRC), as amended. The return shall be filed by the President, Vice-President or other responsible officer of the enterprise and shall be sworn to by such officer and by the treasurer or assistant treasurer.
b. Place of Filing - The quarterly return and the final adjustment return required in the preceding paragraph (a) shall be filed with the Revenue District Officer or the collection agent/accredited bank located within the zone.
c. Time for Filing the Return/Payment of Tax - The provisions of Sections 68 and 69 of the NIRC, as amended, and existing regulations regarding the time for filing of quarterly and final or adjustment returns and payment of the tax imposed herein, as well as the requirement of withholding and remittance of the tax under Sections 50 (a) and (b) and 51, Chapter VI of Title II of the NIRC and the implementing Regulations shall apply to registered enterprises operating within Secured Area in the Zone.
SECTION 8. Disposition of Funds - The amount representing 5% of gross income earned by registered enterprises operating within the Secured Area and collected by the BIR shall be remitted to the National Treasury; the proceeds from the 3% shall form part of the general fund; proceeds from the 1% shall be allocated to the local governments units affected by the declaration of the Zone; and the balance of 1% for the special development fund to be utilized for the development of municipalities outside the City of Olongapo and the Municipality of Subic, and other municipalities contiguous to the base areas.
SECTION 9. Bookkeeping and Reportorial Requirements - All registered and enterprises operating within the Secured Area in the Zone shall keep regular and accurate records of their transactions, and maintain books of accounts and allied documents in accordance with the bookkeeping rules and regulations prescribed by the Bureau of Internal Revenue and/or the SBMA, which shall be open to inspection and verification by authorized officers of the SBMA or of the Bureau of Internal Revenue. For this purpose, the Bureau of Internal Revenue is authorized to conduct at any time during office hours an audit, check, or inventory count for verification and reconciliation of the records with the inventory of articles in the Secured Area.
SECTION 10. Applicability of Existing Laws, Rules and Regulations - For the effective implementation of the Act, pertinent provisions of the National Internal Revenue Code, as amended, including Title IX on the Requirements of Keeping of Books of Accounts and Records, Title X on Statutory Penalties and Offenses as well as their implementing rules and regulations shall apply to registered enterprises operating within the Secured Area in the Zone.
SECTION 11. Effectivity - These regulations shall take effect fifteen days after its complete publication in the Official Gazette or any newspaper of general circulation, whichever comes first.
Adopted: 24 Jan. 1995
(SGD.) ROBERTO F. DE OCAMPO
Secretary of Finance
Recommended by:
(SGD.) LIWAYWAY VINZONS-CHATO
Commissioner of Internal Revenue