"THE key to boosting our economy and creating more jobs is inviting more investors in. And the key to inviting more investors in? Taking care of the ones who are already here. With the Create More Act now signed into law, we can look forward to new investors entering the country, and old ones expanding their investments even further." – Sen. Juan Miguel Zubiri, principal author of Republic Act 12066, also known as the Corporate Recovery and Tax Incentives for Enterprises to Maximize Opportunities for Reinvigorating the Economy.
In my article titled "Enhance Create Act to Create More," published in December last year, I discussed several issues that emerged during the implementation of Republic Act (RA) 11534, also known as the Corporate Recovery and Tax Incentives for Enterprises Act (Create Act) of 2021, and explored potential areas for improvement.
On Nov. 11, 2024, President Ferdinand Marcos Jr. signed RA 12066, also known as the Create More Act, aimed at positioning the Philippines as a leading investment hub. Many believe that the amendments to the Create Act significantly strengthened the law, making it more globally competitive, investment-friendly, transparent and reliable.
I am thrilled to see that the Create More Act has addressed several issues that I highlighted in my previous article, such as: There is ambiguity in the eligibility criteria for VAT exemption and zero-rating due to conflicting provisions between the original Create Act and its implementing rules.
The Create Act states that only local purchases directly and exclusively used in the registered project or activity of registered business enterprises (RBEs) are subject to VAT zero-rating. However, the revenue regulation issued by the Bureau of Internal Revenue (BIR) specifically refers to local purchases made by registered export enterprises, not RBEs, leading to issues in interpretation and implementation.
The Create More Act resolves this issue by clarifying that the following goods and services, when used directly in the registered activity, will be eligible for VAT exemptions or zero-rating: janitorial services, security services, financial services, consultancy services, marketing and promotional services, and administrative operations, including human resources, legal and accounting services.
Therefore, it seems that the Create More Act has changed the requirement for availing VAT zero-rating on the purchase of goods and services by RBEs from "direct and exclusive use" to "directly attributable." This amendment aims to assist companies in identifying which services qualify for VAT exemption and zero-rating, while preventing misuse of the incentive, ensuring that only activities directly related to a business' core operations benefit from these VAT exemptions or zero-rating.
The VAT refund provisions in the original Create Act are complex, and the regulations issued by the BIR are frequently revised. Moreover, RBEs seeking VAT refunds are subjected to audits by the BIR without a clear, risk-based audit framework, making them susceptible to various audit findings.
Sen. Juan Miguel Zubiri, the principal author of RA 12066, highlighted that the new law also aims to reduce bureaucratic red tape, which has impeded business growth in the country. The senator believes that the Create More Act will streamline and simplify the VAT refund process, addressing a long-standing issue for many major investors. Often, these investors wait for years without receiving the refunds they are entitled to, resulting in billions of pesos in losses.
Under the original version of the Create Act, RBEs are subject to varying local taxes, depending on the local government units that have jurisdiction over them. To address this issue, the Create More Act stipulates that companies eligible for tax incentives, including those benefiting from income tax holidays or enhanced deduction regimes (EDR), will only be subject to a local tax of up to 2 percent of their gross income, in lieu of all other local taxes and fees.
Other significant amendments under Create More Act were also introduced, such as:
– A reduction in the corporate income tax rate for RBEs under the EDR has been implemented, lowering the rate on taxable income derived from registered projects or activities during the taxable year from 25 percent to 20 percent. This adjustment aligns with the Organization for Economic Cooperation and Development's Pillar Two Global Minimum Tax rate requirement of 15 percent. By implementing a 20-percent tax rate under the EDR, the Philippines establishes a transparent tax framework that enables businesses to comply with global standards while continuing to benefit from substantial deductions on R&D, training and other eligible expenses.
– The percentage of deductible expense items under the EDR has been increased, including raising the additional deduction for power expenses from 50 percent to 100 percent. This change enhances the Philippines' attractiveness for businesses in energy-intensive sectors, such as manufacturing and logistics. By offering larger deductions for power expenses, the measure helps lower costs and addresses concerns over the country's high electricity rates, a key consideration for businesses looking to invest in these industries.
– Deductible expense items for trade fairs and exhibitions have been introduced, enabling businesses to broaden their market reach and promote their products both domestically and internationally.
– Carry-over of net operating losses as a deduction within the next five consecutive taxable years following the end of the income tax holiday period, rather than within the five years following the year of the loss. These changes aim to offer businesses greater tax relief, encouraging investment in R&D, employee development and market expansion, while also supporting industries vital to the country's economic growth.
– The maximum period for tax incentives has been extended to 27 years, up from the 17 years provided under the original Create Act. This extended time frame gives businesses more opportunity to recover their investments and generate profits, enhancing the Philippines' appeal as a premier investment destination and supporting the law's objective of positioning the country as a leading investment hub.
As a tax practitioner and professor with over two decades of experience teaching taxation, I have observed the frequent changes in the provisions of the Tax Code, along with the sometimes unclear and conflicting aspects of its related implementing revenue regulations, including those of the original version of the Create Act.
However, I am confident that if the implementing rules and regulations of the new law, Create More Act, establish clear provisions that simplify investment incentives, it has the potential to restore the trust of foreign investors, attract greater foreign investment and drive stronger economic growth in the country.
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Enrico D. Tabag is the managing partner of EDT & Co., CPAs and an assistant professor at the University of Santo Tomas Alfredo M. Velayo College of Accountancy. The views and opinions expressed in this article are the author's and do not necessarily reflect the views of the said institutions.
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