2016 (Taxation) Bar Exam Questions: Question 16

[Answer/discuss the question below, or see 2016 bar exam Taxation Instructions; 2016 Labor Law Questions:   123456789101112131415171819, and 20; See also 2016 Bar Exam: Information, Discussions, Tips, Questions and Results]

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Amor Powers, Inc. (API) is a domestic corporation registered with the BIR as a value-addedtaxpayer. API incurred excess input VAT in the amount of P500,000,000.00 on August 3, 2008. Hence, it filed with the BIR an administrative claim for the refund or credit ofthese input taxes on August 15, 2010. Without waiting for the CIR to act on its claim, API filed a Petition for Review with the CTA on September 15, 2010 before the lapse oftwo years after the close ofthe taxable quarter concerned.

In its Comment on the Petition, the CIR argues that API’s Petition should be dismissed as it was filed before the lapse of the 120-day period given to the CIR by Sec. 112(D) ofthe NIRC, which became effective on January 1, 1998. For the CIR, the 120- day period is mandatory and jurisdictional so that any suit filed before its expiration is premature and, therefore, dismissible.

API, on the other hand, invokes BIR Ruling No. DA-489-03 issued by the CIR on December 10, 2003 in answer to a query posed by the Department of Finance regarding the propriety ofthe actions taken by Lazi Bay Resources Development, Inc., which filed an administrative claim for refund with the CIR and, before the lapse of the 120-day period from its filing, filed a judicial claim with the CTA. BIR Ruling No. DA-489-03 stated that the taxpayer-claimant need not wait for the lapse ofthe 120-day period before it could seek judicial relief with the CTA.

Will API’s Petition for Review prosper? Decide with reasons. (5%)

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