This issuance clarifies the taxability of income derived by LGUs engaging proprietary functions.
LGUs, being political subdivisions, shall enjoy local autonomy, including full autonomy in the exercise of their proprietary functions and in the management of their economic enterprises stated under Section 2, Article X of the 1987 Philippine Constitution and Section 22 of RA No. 7160.
Under Section 5 of the Constitution and Section 18 of RA No. 7160 LGU shall have the power to:
- Create its own source of revenue and to levy taxes, fees and charges subject to guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy.
- Acquire, develop, lease, encumber, alienate, or otherwise dispose of real or personal property held by them in their property capacity and to apply their resources and assets for productive, developmental, or welfare purposes, in the exercise of furtherance of their governmental or proprietary powers and functions and thereby ensure their development into self – reliant communities and active participants in the attainment of national goals.
LGUs (which are considered as government agency) are liable to pay tax imposed upon their taxable income under Section 27 (C) of the National Internal Revenue Code of 1997, as amended (“Tax Code”).
However, Section 32 (B) (7) (b) of the Tax Code clarified that income derived from the exercise of essential government functions accruing to LGUs are exempt from tax.
(B) Exclusions from gross income. – The following items shall not be included in gross income and shall be exempt from taxation under this Title:
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(7) Miscellaneous Items.
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(b) Income Derived by the Government or its Political Subdivisions, - Income derived from any public utility or from the exercise of essential governmental function accruing to the Government of the Philippines or to any political subdivision thereof.”
Thus, only the income derived by the LGUs from the performance of its proprietary functions shall be subject to Philippine taxes as are imposed upon corporations or associations engaged in similar business, industry or activity.
II. FUNCTIONS OF LOCAL GOVERNMENT UNIT
LGUs’ powers are two-fold in character: (i) governmental, legislative, public, or political; and (ii) proprietary, corporate or private under Section 15 of RA No. 7160.
- Governmental Function
An LGU exercising its governmental power when it administers the powers of the State and promoting public welfare which includes the legislative, judicial, public and political aspects. In its public capacity, a responsibility exists in the performance of acts for the public benefit, and in this respect, it is merely a part of the machinery of government of the sovereignty creating them, and the authority of the state supreme.
- Proprietary Functions
Proprietary function refers to those that are undertaken only by way of advancing the general interest of society, and merely optional on the government. Proprietary powers are exercised for the special benefit and advantage of the community which include those: (1) that are ministerial, private, and corporate in nature, and not necessary to its existence; and (2) which inure to the advantage of its inhabitants.
Section 2 (5) of RR No. 18-2012, qualified the acts that are considered performance of proprietary functions of the LGUs:
“SECTION 2. Definition of Terms, -
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5. Government Proprietary Function – for purposes of these Regulations, when a public corporation or a local government unit act in its proprietary character, it is regarded as having the rights and obligations of a private corporation. For government entities to be taxable, the following requisites must concur: (1) the government entity concerned must not be performing an essential governmental function; and (2) it must be engaged in similar business, industry, or activity as performed by other ordinary taxable corporations. All income realized from or received in the exercise of its proprietary functions shall be subject to income tax and business taxes in the same manner as other private corporations similarly situated.”
For a specific act of LGU to be considered as proprietary in nature the following must be present:
- The LGU concerned must not be performing an essential governmental function; and
- The LGU must be engaged in similar business, industry, or activity as performed by other ordinary taxable corporations.
III. TAX TREATMENT OF INCOME DERIVED FROM THE PERFORMANCE OF PROPRIETARY FUNCTION OF LGUs
When LGU acts in its proprietary character, it is regarded as having the rights and obligations of a private corporation. Based on Section 30 of the Tax Code, the income of whatever kind and character of corporations from any of their activities conducted for profit regardless of the disposition made of such income, shall be subject to tax imposed under the Tax Code.
To emphasize tax exemption privileges, including preferential tax treatment of all government units, including, for the avoidance of doubt, LGUs, were withdrawn by Presidential Decree No. 1931(1984) and Executive Order No. 93 (1987).
As such, the Proprietary Income derived by LGUs shall be subject to the following internal revenue taxes:
A. Income Tax
Income derived by LGUs from the performance of proprietary activities are subject to income tax under Section 27 (C) of the Tax Code.
It must be noted that this includes income taxes imposed on passive income under Section 27(D) of the Tax Code such as, but not limited to, royalties, interests, dividends, sale of shares of stocks, income derived under the expanded foreign currency deposit system, and capital gain realized from sale, exchange, or other dispositions of lands and/or buildings which are not actually used in the performance of such LGU’s governmental functions.
B. Withholding tax
Under Section 2.57.5 (A) of RR No. 2-98, withholding of creditable withholding tax shall not apply to income payments made to the national government and its instrumentalities, including provincial, city or municipal governments, this rule only applies to income payments received by the LGU in the performance of its governmental functions.
Proprietary Income shall be taxed the same just like any other private or government corporation. Hence, income payments to LGUs by reason of performance of proprietary functions shall be subject to withholding tax pursuant RR No. 2 -98.
C. VAT
Section 105 of the Tax Code provides for the persons liable to VAT, to wit:
“SEC. 105. Person Liable, - Any person who, in the course of trade or business, sells, barters, exchange, leases goods or properties, renders services, and any person who imports goods shall be subject to the value-added tax (VAT) imposed in Section 106 to 108 of this Code.”
Section 108 of the Tax Code provides for the tax rate and tax base of VAT on sale of services:
“SEC. 108. Value- added Tax on Sale of Services and Use or Lease of Properties.
- Rate and Base of Tax. – There shall be levied, assessed and collected, a value- added tax equivalent to twelve percent (12%) of the gross sales derived from the sale or exchange of services, including the use or lease of properties:
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The phrase’ sale or exchange or services’ means the performance of all kinds of services in the Philippines, for others for a fee, remuneration or consideration, x x x”
When LGUs perform corporate or private function that is proprietary in nature, it shall be held liable to 12% VAT on the total gross sales derived from such activity.
D. Other Percentage Taxes
Income derived by LGUs from the performance of its proprietary function that falls under Title V of the Tax Code shall be subject to percentage tax based on the percentage tax rates provided therein.
E. DST
LGUs entering into private contracts/agreements relating to its performance of corporate or private function that is proprietary in nature, similar with private corporations, shall be held liable for DST under the Tax Code.
For transactions subject to the above internal revenue taxes, LGU shall issue the appropriate invoice/s complying with the requirements under Section 237 of the Tax Code, as amended by RA No. 11976, otherwise known as the “Ease of Paying Taxes Act”, and as implemented by RR No. 7-2024 and other existing rules and regulations. Hence, they shall apply for Authority to Print in the printing of the principal and supplementary invoices following the procedure under RR No.7-2024 and other relevant revenue issuances.
IV. APPLICATION OF TAXES
A. Sale of properties that are no longer intended for governmental use
Under Section 27 (D) (5) of the Tax Code, it is provided that in the case of sale, exchange, or other disposition of lands and/ or buildings which are not actually used in business and are treated as capital assets by domestic corporations, a final tax of six percent (6%) based on the gross selling price or current fair market value as determined in accordance with Section 6 (E) of the Tax Code, whichever is higher, is imposed upon capital gains presumed to have been realized therefrom. It must be noted that the said Capital Gains Tax (CGT) is an income tax, the burden of which rests upon the seller which, in this case, is the LGU.
B. Leasing of properties
Leasing of property to a private person and/or entity for it to construct, develop and operate a commercial activity is primarily an economic activity with a view to obtaining profit. The LGU in this case acts in its proprietary or private character since no governmental or public policy of the state is involved.
C. Exchange of properties
An exchange of properties between two (2) parties is subject to CGT and the corresponding DST based on the fair market value of their respective properties as determined in accordance with Section 6 (E) of the Tax Code. If the exchange of properties between the LGU and the private person/entity relating to a commercial activity partakes the nature of voluntary exchange, it Is subject to the aforesaid taxes.
D. Interest from deposits and yield or any other monetary benefit from deposit substitutes and from trust funds and similar arrangements and royalties
The obligation of LGU to maintain depository accounts for its funds may not be construed as part of its essential governmental functions since this is not exercised in “administering the powers of the state and promoting the public welfare” nor is it included among the “legislative, judicial, public or political” powers of the LGU. It is in the nature of a function “for the special benefit and advantage of the city or municipality” and, hence, proprietary in character The LGU is subject to 20% final tax on interest income derived from its deposit accounts and yield and other monetary benefit from its investments in government securities, commercial papers and similar arrangements.
E. Forfeiture of or purchase by the LGU in the public auction of properties due to delinquency in real property taxes
The transaction shall be subject to CGT based on the bid price in the auction sale or the zonal value of the foreclosed property, whichever is higher. The declaration of forfeiture is subject to DST under Section 196 of the Tax Code.