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Donors Tax
Donors Tax
Donors Tax
DONOR’S TAX
Atty. C. Llamado
Notes:
Contract of Donation
When perfected? At the moment the donor knows of the acceptance of the gift by the done.2
Who can be donors? All persons who may contract and dispose of their property may make a
donation.3
Who can be donees? All those who are not specially disqualified by law may accept donations.4
Minors and others who cannot enter into a contract may become donees,
but acceptance shall be done through their parents or legal representatives.5
1
Since there is no donation, there is also no Documentary Stamp Tax (“DST”) due (RMC No. 102-2019).
2
Art. 734, Civil Code.
3
Art. 735, Civil Code.
4
Art. 738, Civil Code.
5
Art. 741, Civil Code.
6
Art. 742, Civil Code.
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1) Between spouses, whether direct or indirect, during the marriage, except moderate gifts
which the spouses may give each other on the occasion of any family rejoicing;7
Note: Indirect donations to a spouse are void, and include the following donations
of a spouse:8
a) To a stepchild who has no compulsory heirs other than the other spouse at the
time of the donation;
b) To a common child who has no compulsory heirs other than the other spouse at
the time of the donation;
c) To the parents of the other spouse;
d) To the other spouse’s adopted child in cases when, at the time of the donation,
the only surviving relatives of the adopted is the adopter-spouse, the illegitimate
children of the adopted, and the surviving spouse of the adopted;
e) To a common adopted child who has no other surviving heirs.
2) Between persons living together as husband and wife without a valid marriage;9
4) Between persons found guilty of the same criminal offense, in consideration thereof;11
5) Those made to a public officer or his/her spouse, descendants, and ascendants, by reason
of his or her office;12
Donation of Movables
7
Art. 87, Family Code.
8
Art. 190. Family Code.
9
Art. 87, Family Code.
10
Art. 739, Civil Code.
11
Ibid.
12
Ibid.
13
Arts. 740 and 1027, Civil Code.
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May 2021
If value of the movable does not exceed ₱5,000, the donation may be oral or in writing,
and the acceptance may be oral, in writing, or tacit.
If the value of the movable is exceeds ₱5,000, the donation and the acceptance must be
in writing, otherwise the donation is void. Without such writing, the donation would be
void, even if there is simultaneous delivery.14
Donation of Immovables
Acceptance may be made in the same deed of donation or in a separate public instrument.
The acceptance must be done during the lifetime of the donor, and the latter must be
notified of the acceptance.
14
Art. 748, Civil Code.
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Requisites:
(a) The property transferred is real or personal property, except real property classified
as a capital asset subject to the 6% CGT upon its sale or transfer;
(b) The transfer is for less than a full price;
(c) The transfer is inter vivos; and
(d) The transaction is not an arm’s length transaction or bona fide transaction. The party
transferring the property for less than a full price has an intention to donate the same.
Purpose: To prevent escape from the income tax by accepting a lower price for the
property.
Tax Consequences:
(1) If the shares are listed, but are sold, bartered, or exchanged outside the local
stock exchange, the FMV shall be:
(a) The closing price on the day the shares are sold, bartered, or exchanged; or
(b) The closing price on the day nearest to the date of sale, barter, or exchange
if there is no sales transaction of the shares in the local stock exchange on
the day it was sold, bartered, or exchanged.
(2) If the shares of stock are not listed and traded in the local stock exchange, the
FMV shall be:
(a) For common shares – the book value based on the latest available financial
statements duly certified by an independent public accountant prior to the
date of sale, but not earlier than the immediately preceding taxable year.16
(b) For preferred shares – the liquidation value which is equal to the
redemption price of the preferred shares as of the balance sheet date
nearest to the transaction date, including any premium and cumulative
preferred dividends in arrears.
15
Sec. 100, NIRC, as amended by R.A. No. 10963.
16
In case there are both common and preferred shares, the book value per common share shall be computed
by deducting the liquidation value of the preferred shares from the total equity of the corporation, and
dividing the result by the number of outstanding common shares as of the balance sheet date nearest to the
transaction date.
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EXCEPTION: When the sale/exchange is bona fide, at arm’s length, and free from any
donative intent, the same will be considered as made for an adequate and
full consideration in money or money’s worth.17 In such cases, there is
no insufficient consideration, and therefore no gift.
GROSS GIFT
- Depends upon the citizenship and/or residence of the donor:
(if there is
reciprocity)
Intangible personal property means incorporeal property which do not have any physical form,
but represent rights and privileges. Examples include bank deposits, trademarks, shares of stock,
patents, copyrights, bonds, notes, interest in a partnership, etc.
17
Sec. 100, NIRC, as amended by R.A. No. 10963.
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(a) The conjugal or community properties. Each spouse shall be considered a separate
donor of his or her interest in the property: ½ of the conjugal property donated being
a gift of the husband, and the other half that of the wife.
VALUATION OF GIFTS
- Properties shall be valued at the time the gift is made.
Property Valuation
Real Property FMV which is the higher of the zonal value or the assessor’s value
Personal Property FMV at the time of the gift
Stocks listed in the stock Average of the lowest and highest quotes on the valuation date
exchange (date of gift) or day nearest to the valuation date.
Stocks not listed in any For common shares: Book Value18
local exchange For preferred shares, par value.
Notes; accounts FMV is the discounted amount of the unpaid principal plus interest.
receivable
Stock options (1) At the time of donation, the FMV of the stock option
(2) Upon exercise of the option, the difference between the higher
of the BV or FMV of the underlying shares at the time of
exercise, and the exercise price.
Units of participation in Bid price nearest the date of the gift published in any newspaper or
any association, publication of general circulation.
recreation, or amusement
club
18
In determining the book value, appraisal surplus and the value assigned to preferred shares shall not be
considered.
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Provided:
Notes:
(1) Only those donations or contributions that have been utilized or spent during the
campaign period as set by the COMELEC are exempt from the donor’s tax. Therefore,
any donation utilized before or after the said campaign period shall be subject to the
donor’s tax.20
(2) Section 35(i) of R.A. No. 11232 (the Revised Corporation Code of the Philippines)
provides that no foreign corporation shall give donations in aid of any political party
or candidate or for purposes of partisan political activity. Accordingly, because the
provision only refers to foreign corporations, domestic corporations are now allowed
to give such donations to any political party or candidate, and the same shall be exempt
from the donor’s tax.
D) Other donations which are exempted from the donor’s tax under special laws:
(1) Donation made for the operation of the Dual Training System under R.A. No. 7686.
(2) Donations of cooperatives to duly accredited charitable, research, and educational
institutions, and to socio-economic projects within their area of operations;
(3) Donations of lands certified by the LGU to have been donated for socialized housing
purposes;
(4) Donation to the Philippine Red Cross;
(5) Donations to state universities and colleges.
19
R.A. No. 7166.
20
RMC No. 3-2016; RMC No. 38-2018; RMC No. 31-2019.
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Note: The exemption of abovementioned donations started on March 16, 2020 upon
the issuance of Presidential Proclamation No. 929, and shall be available until
the end of the three (3) month effectivity of R.A. No. 11469,23 unless extended
or withdrawn by Congress, or ended by Presidential Proclamation.24
21
This shall include personal protective equipment (gloves, masks, goggles, face shields, surgical
equipment and supplies); laboratory equipment and its reagents; medical equipment and devices; support
and maintenance for laboratory and medical equipment, surgical equipment and supplies; medical
supplies, tools, and consumables (alcohol, sanitizers, tissue, thermometers, hand soap, detergent, sodium
hydrochloride, cleaning materials, povidone iodine, common medicines); testing kits, and such other
supplies or equipment as may be determined by the DOH and other relevant government agencies. (Rev.
Reg. No. 6-2020).
22
Rev. Reg. No. 9-2020.
23
R.A. No. 11469 became effective March 25, 2020.
24
Rev. Reg. No. 9-2020.
25
Rev. Reg. No. 2-2003.
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May 2021
Beginning January 1, 2018, the tax shall be six percent (6%) computed on the basis of the total
gifts in excess of Two Hundred Fifty Thousand Pesos (₱250,000) exempt gift made during the
calendar year.26
The computation of the donor’s tax is on a cumulative basis over a period of one (1) calendar
year.27
The donor’s or gift tax is computed on the net gift of the first donation. In case there are subsequent
donations in the same calendar year, the tax is computed on a cumulative basis, i.e., the prior gross
gifts in the same calendar year are added to the current gross gift to arrive at the total gross gifts.
The total exemptions or deductions shall be subtracted from the total gross gifts. The donor’s tax
shall be based on the total net gifts.
26
Sec. 99(A), NIRC; Rev. Reg. No. 12-2018.
27
Rev. Reg. No. 12-2018.
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Limits:
(B) Net Gifts (in all Foreign Countries) x Philippine Donor’s Tax
Total Net Gifts
Rules:
1) If there is only one (1) foreign country, only Limit (A) is used.
2) If there are ≥ two (2) foreign countries, use both Limits
Formula:
Lower = Credit
Sum of donor’s taxes paid in
Countries 1 and 2 Lower = Limit (B)
Limit B
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May 2021
Who files?
Any donor who makes any transfer by gift.
Notes:
(a) No return is required if the transfer is exempt from donor’s tax, like donations to
the National Government or to non-profit institutions.
(b) A separate return shall be filed by each donor for each gift or donation made on
different dates during the year. Any previous gifts made in the same calendar year shall
be reflected in each return.
(c) Only one return shall be filed for several gifts or donations by a donor made on the
same date to different donees.
(d) If the gift or donation involves conjugal/community property, each spouse shall file a
separate return corresponding to his/her respective share in the conjugal/community
property. This rule shall likewise apply in the case of co-ownership over the property
being donated.28
Time of filing?
Within thirty (30) days from the date the gift is made.
Where filed?
(a) If donor is a resident donor (i.e., citizen or resident alien) – with the Authorized Agent
Bank (AAB), RDO, collection officer or duly authorized treasurer of the city or
municipality where donor is domiciled at the time of transfer, or with the Office of the
Commissioner if donor has no legal residence.
(b) If donor is a non-resident donor (i.e., non-resident alien) – with the Philippine
Embassy or Consulate in the country where he is domiciled at the time of transfer; or
directly with the Office of Commissioner (RDO No. 39).
(c) In cases of “No Payment Return” – The returns shall be filed with the Revenue District
Office having jurisdiction over the place of domicile of the donor at the time of the
donation, or if there is no legal residence in the Philippines, with the Office of the
Commissioner (RDO No. 39 – South Quezon City).29
28
Guidelines and Instructions (BIR Form No. 1800 – Donor’s Tax Return).
29
RMC No. 54-2019.
30
Sec. 103(A), NIRC.
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Notice of Donation.31
In order to be exempt from the donor’s tax and to claim full deduction of the donation given
to qualified donee institutions, the donor engaged in business shall give a Notice of
Donation on every donation worth at least Fifty Thousand Pesos (₱50,000) to the RDO
which has jurisdiction over his place of business.
The aforementioned notice shall be given to the RDO within thirty (30) days after receipt
of the donee’s duly issued Certificate of Donation (BIR Form No. 2322). The same
certificate shall be attached to the Notice of Donation, and shall state that not more than
30% of the donations for the taxable year shall be used by such accredited non-stock, non-
profit, NGO-donee institution for administration purposes pursuant to Section 101(A)(3)
and B(2) of the Tax Code.
31
Rev. Reg. Nos. 2-2003, 12-2018.
12