Fact check: Is it illegal for ABS-CBN to avail of tax perks?
In this photo taken Feb. 14, 2020, ABS-CBN employees, supporters and various rights group gather in front of the ABS-CBN main office in Quezon City to join in the Black Friday protest calling for the renewal of the network’s franchise.
The STAR/Miguel De Guzman

Fact check: Is it illegal for ABS-CBN to avail of tax perks?

Ian Nicolas Cigaral (Philstar.com) - July 3, 2020 - 4:21pm

MANILA, Philippines — Lawmakers on Thursday recycled anew allegations that embattled media giant ABS-CBN Corp. is not paying the correct taxes, this time hurling allegations that the company is engaged in tax avoidance scheme by availing fiscal perks.

At the center of the accusations is Big Dipper Digital Content and Design Inc., a subsidiary of ABS-CBN that processes films and TV shows for export to other countries and various digital platforms. 

The company is registered with Philippine Economic Zone Authority (PEZA), the country's largest economic zone operator that offers fiscal perks such as waiving of income tax payments and levy-free imports for certain shipments, to attract investors.

The allegation against Big Dipper was first raised by Deputy Speaker Rodante Marcoleta, who has led attacks against the Lopez-led network since legislators was forced to tackle ABS-CBN’s franchise renewal, following its shutdown last May 5. According to Marcoleta, ABS-CBN is allegedly using Big Dipper as a “tax shield.”

Meanwhile, Cavite Rep. Boying Remulla, who sits as senior deputy majority leader, in the same hearing also faulted ABS-CBN for availing incentives to boost their tax savings.

Lahat ng pinag-uusapan dito kapag sa buwis, sinasabi niyong nabayaran niyo lahat at sinasabi niyong di kayo gumawa ng paraan para bumaba ang buwis niyo (Whenever we talk about taxes, you always say you settled all your dues but you don’t want to admit that you looked for ways to reduce your taxes),” Remulla told ABS-CBN officials.

“Is that what ABS-CBN is saying? You don’t have tax avoidance mechanisms? ... Tax avoidance is legal, tax evasion is illegal. Tax incentive is a tax avoidance measure,” he added.

Is availing of tax incentives illegal?

But if current laws will be considered, legislators were wrong to castigate ABS-CBN for using tax incentives, which are valid deductions and tax avoidance measures meant to reduce a taxpayer’s liabilities. Tax avoidance, as it is, is different from the illegal tax evasion.

“Conceptually, under our rules, tax avoidance is allowed as long as it is not abused. Using those exemptions allows us to avoid paying higher taxes... When we say not abused, there isn't really any fraud,” said Eleanor Roque, tax advisory head at P&A Grant Thornton, an auditing firm.

“Tax evasion is illegal per se... There is fraud and you did not declare your taxable income,” she said in a phone interview.

What’s more, tax incentives themselves were typically laws enacted no less than by Congress itself. Under the Constitution, all tax measures emanate from the House of Representatives, the same chamber where some members on Thursday questioned ABS-CBN’s availment of tax perks.

If the lawmakers were right on one thing, it is that availing tax incentives reduces potential revenues the government can collect. In 2018, the latest period on which data is available, P471 billion in tax perks were granted to 3,150 eligible companies, according to budget data. This was up from P441.1 billion in 2017 and just P380.7 billion in 2016.

For the finance department, in charge of collecting revenues, the amount represented “huge inequity” between companies which are able to enjoy the perks for years, and those which cannot. But that does not make availment of tax incentives illegal.

In fact, the finance agency tallied that currently, there are 342 investment and non-investment laws that offer different fiscal perks including income tax holidays (ITH), exemption from customs duties when importing, or simply just lower tax rates than what is typically paid by a regular taxpayer. The latter happens, for instance, when an ITH expires and replaced by a flat rate of 5% for firms in ecozones like Big Dipper since 2009.

Ecozones, where Big Dipper is located, offer tax incentives to companies to encourage them hire more people and generate jobs.
Department of Finance tax reform presentation (October 2019)

In 2018, there were 549 ecozones that gave out these perks to investors, including PEZA. Applications for incentives are consistently being reviewed by government, Charito Plaza, PEZA director-general, told lawmakers.

“There is no such thing as making PEZA as a tax shield because these incentives are being evaluated by these agencies of government,” she said.

If not illegal, what’s the problem with incentives?

There is a tough balancing act between offering incentives and generating revenues, and for decades, the government has had a difficult time achieving it. Efforts since the Ramos administration to remove some tax perks failed to hurdle Congress because of fears by legislators themselves that doing so would result into investment flight.

This should be pointed out: any incentive reform would have to be enacted since most, if not all, tax perks are granted by law.

Investments are important because they generate jobs. In fact, the country’s booming business process outsourcing sector, which employed more than 1.3 million people as of last year and contribute over $20 billion annually, enjoys these perks. At the same time however, government would need to continuously raise revenues to fund the country’s rising needs.

Under the Duterte administration, the finance agency renewed the push to remove some fiscal incentives through Corporate Income Tax and Incentives Reform Act (CITIRA) in exchange for lower corporate taxes. 

But that all changed when the coronavirus pandemic struck. The CITIRA bill was repackaged into what is now known as the Corporate Recovery and Tax Incentives for Enterprises (CREATE) bill, which now lengthens fiscal incentives for companies, among others. — with Prinz Magtulis

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