Facts Parties: PSPC - Pilipinas Shell Petroleum Corporation SGLPI - Shell Gas LPG Philippines, Inc. SGHBV - Shell Gas Holdings BV
PSPC assigned its LPG business, its fixed assets, and inventory to SGLPI. In exchange, PSPC receives shares of stock of SGLPI. The entire exchange was conducted through a tax-free exchange pursuant to Section 40(C)(2) of the NIRC. The exchange was integral of the reorganisation of the LPG business of PSPC worldwide. Pursuant to the reorganisation plan, PSPC intends to assign the SGLPI shares to SGHBV. It is envisioned the SGHBV will hold and own the shares of stock of all Shell entities worldwide which are engaged in the LPG business.
Issues 1. W/N the assignment by PSPC of its fixed assets and inventory of its LPG business to SGLPI in exchange for shares of stock is a tax-free exchange transaction under Section 40(C)(2)
2. W/N such transfer is subject to VAT
Held 1. YES, the assignment of fixed assets and inventory in exchange for shares of stock is a tax-free exchange transaction under Section 40(C)(2).
2. The transfer of FIXED ASSETS is NOT subject to VAT. The transfer or INVENTORY is subject to VAT.
Ratio VAT is imposed on the sale, barter or exchange in the course of trade or business, including transactions incidental thereto, as long as there is an actual change of ownership over such goods or properties.
The underlying assumption of tax-free exchange provisions generally is that the new property received is substantially a continuation of the old investment still unliquidated. Thus, the said transaction does not constitute a sale or exchange of property in the course of trade or business. Hence, the conveyance of assets, property and equipment used in business but not for sale in the ordinary course of trade or business is not subject to VAT.
The phrase "in the course of trade or business" connotes regularity of activity.
The phrase "in the course of trade or business" does not contemplate an activity that can no longer be repeated or carried on with regularity.
The word "incidental" contemplates an activity that necessarily follows the carrying out of the primary function.
The transfer by PSPC of the Fixed Assets of its LPG business to SGLPI in exchange for the latter's shares of stock pursuant to a tax-free exchange transaction under Section 40(C)(2) of the Tax Code of 1997 is by reason of a reorganization, a transaction which is not done with regularity and would no longer be repeated. The assignment of the Fixed Assets is not undertaken in the course of PSPC's regular conduct of trade or business or in pursuit of a commercial or an economic activity, nor is it incidental thereto. The Fixed Assets are not held by PSPC for sale or for lease in the ordinary course of trade or business. Furthermore, the Fixed Assets do not constitute PSPC's stock-in-trade or inventory. Consequently, the assignment of the Fixed Assets is not subject to VAT.
However, the assignment by PSPC of the Inventory of its LPG business to SGLPI, although it does not occur in the regular conduct by PSPC of its trade or business and is a transaction which is not done with regularity and would no longer be repeated is nevertheless subject to VAT pursuant to Revenue Regulations No. 16-2005. The transfer by PSPC of its Inventory which constitutes stock-in-trade and is deemed an ordinary asset is subject to VAT.
RevReg 16-2005 (B) Transactions Deemed Sale The following transactions shall be deemed sale: (1) Transfer, use or consumption not in the course of business of goods or properties originally intended for sale or for use in the course of business; (2) Distribution or transfer to: (a) Shareholders or investors as share in the profits of the VAT-registered persons; or (b) Creditors in payment of debt; (c) Consignment of goods if actual sale is not made within sixty (60) days following the date such goods were consigned; an (d) Retirement from or cessation of business, with respect to inventories of taxable goods existing as of such retirement or cessation.