Tax Case Digest: South African Airways V.

CIR
(2010)
South African Airways v. CIR
G.R. No. 180356 February 16, 2010
VELASCO, JR., J.

Lessons Applicable: Taxes can be offset if intimately related, unless exempted assumed within the
purview of general rule, liabilities and tax credit must first be determined before offset can take place

Laws Applicable:

Facts:

 South African Airways, a foreign corporation with no license to do business in the Philippines, sells passage
documents for off-line flights through Aerotel Limited, general sales agent in the Philippines
 Feb 5, 2003: Petitioner filed a claim for refund erroneously paid tax on Gross Philippine Billing (GPB) for the
year 2010.
 CTA: denied - petitioner is a resident foreign corp. engaged in trade or business in the Philippines and therefore
is NOT liable to pay tax on GPB under the Sec. 28 (A) (3) (a) of the 1997 NIRC but cannot be allowed refund
because liable for the 32% income tax from its sales of passage documents.
 This is upheld by the CTA and CTA En Banc
Issue:
1. W/N petitioner is engaged in trade or business in the Philippines is subject to 32% income tax.
2. W/N petitioner is entitled to refund

HELD: CTA En Banc decision is set side

1. Yes. Since it does not maintain flights to or from the Philippines, it is not taxable under Sec.
28(A)(3)(a) of the 1997 NIRC. This much was also found by the CTA. But petitioner further posits the view
that due to the non-applicability of Sec. 28(A)(3)(a) to it, it is precluded from paying any other income tax
for its sale of passage documents in the Philippines. But, Sec. 28 (A)(1) of the 1997 NIRC does not
exempt all international air carriers from the coverage of Sec. 28 (A) (1) of the 1997 NIRC being a general
rule. Petitioner, being an international carrier with no flights originating from the Philippines, does not fall
under the exception. As such, petitioner must fall under the general rule. This principle is embodied in the
Latin maxim, exception firmat regulam in casibus non exceptis, which means, a thing not being excepted
must be regarded as coming within the purview of the general rule.

2. Underterminable. Although offsetting of tax refund with tax deficiency is unavailing under Art. 1279 of
the Civil Code, in CIR v. CTA it granted when deficiency assessment is intimately related and inextricably
intertwined with the right to claim for a tax refund. Sec. 72 Chapter XI of 1997 NIRC is not applicable
where petitioner's tax refund claim assumes that the tax return that it filed were correct because petitioner
is liable under Sec. 28 (A)(1), the correctness is now put in doubt and refund cannot be granted. It cannot
be assumed that the liabilities for two different provisions would be the same. There is a necessity for the
CTA to receive evidence and establish the correct amount before a refund can be granted.