Tax Avoidance vs Tax Evasion 2009_4_Kho-Sy

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    ________________________

    * Assistant Professor of Accounting, College of Business Administration, University of the Philippines,

    Diliman, Quezon City. (Email: [email protected]).

    THE LEGALITY OF THE ASSAULT ON TAX AVOIDANCE PRACTICES

    IN THE PHILIPPINES

    Evelyn Kho-Sy*

    The distinction between tax avoidance and tax evasion is very clear in the

    academe. Tax books have often defined tax avoidance as an attempt to minimize

    the payment or altogether eliminate tax liability by lawful means, while tax

    evasion refers to the elimination or reductions of one's correct and proper tax

    by fraudulent means. The consequence of each case is also clear. The former is

    not criminally punishable while the latter is criminally punishable. However, the

    distinction between the two cases seems to have been blurred by the inconsistent

    practice of the government in its treatment of the subject matter.

    Very often, the Bureau of Internal Revenue (BIR) asks for a valid business

    purpose whenever a taxpayer enters into a transaction which has the effect of

    reducing tax liability. For instance, when a father sells a parcel of land to his

    son, the BIR looks into the financial capability of the son to buy the subject land,

    in order to ensure that the sale was not for the sole purpose of saving on the

    payment of estate taxes. The taxpayer has to come up with a valid reason for

    selling his land to his son. An honest answer from the taxpayer that the

    transaction was for purposes of tax avoidance will not be acceptable to the BIR.

    The BIR will impose the higher tax rate in its assessment, as well as the

    corresponding interests and penalties. This situation leads one to wonder-

    whether tax avoidance is legal or not in the Philippines.

    This paper aims to show that the attack on tax avoidance transactions in the

    Philippines has no legal basis. It urges consistency and certainty on the part of

    the government in its response towards tax avoidance. To eliminate further

    injustice and inefficiencies, it is imperative that a law be passed to inform the

    taxpayers as to what constitutes "permissible" and "impermissible" tax

    avoidance. In the absence of such law, tax avoidance transactions entered into

    by the taxpayers must be respected.

    Keywords: tax avoidance; tax evasion

    I. INTRODUCTION

    Tax Avoidance vs. Tax Evasion

    Distinctions and Similarities

    The distinction between tax avoidance

    and tax evasion seems to be very clear.

    Assume for instance that Corporation "A" is

    engaged in real estate business. It owns a

    parcel of land which it would like to transfer

    Philippine Management Review

    2009, Vol. 16, pp. 58-92.

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    EVELYNKHO-SY 59

    to buyer "B". An outright sale of the land

    from corporation "A" to buyer "B" will

    result to an income tax liability on the partof corporation "A" at the rate of thirty

    percent (30%) of taxable income.1

    However, if corporation "A" creates a

    subsidiary by transferring the parcel of land

    to subsidiary "C" in exchange for the shares

    of stocks of subsidiary C, the transfer is

    not subject to any tax liabilities.2

    Corporation "A" can subsequently transfer

    the shares of stocks of subsidiary "C" to

    buyer "B". Stock transfers are subject to a

    maximum tax rate of only ten percent (10%)based on net capital gain.3 As can be seen

    from this illustration, by creating a subsidiary

    and selling the shares of stocks, corporation

    "A" was able to achieve its purpose of

    transferring a parcel of land to buyer "B", butat a reduced tax rate of ten percent (10%)

    instead of thirty percent (30%). This is an

    example of tax avoidance, whereby a

    taxpayer lawfully arranges its affairs to

    minimize taxes by utilizing the loopholes in

    the tax law.

    Using the same example given in the

    preceding paragraph, if corporation "A" sellsa parcel of land worth ten million pesos

    (P10,000,000.00) and intentionally

    understated the selling price to-reduce its

    income tax liability, then it has committed a

    clear case of tax fraud. Tax fraud or evasion

    refers to the elimination or reduction of one's

    correct and proper tax by fraudulent means.4The fraud contemplated by law is actual and

    not constructive. It must be intentional,

    consisting of deception wilfully and

    deliberately done or resorted to in order to

    induce another to give some legal right.5

    Tax

    evasion typically involves failing to report

    income, or improperly claiming deductions

    that are not authorized.

    Clearly, "avoidance" is distinguishable

    from "evasion" which means avoidance by

    artifice as distinguished from an avoidancepermitted by law.6 Authors have often

    defined tax avoidance as the tax saving

    device within the means sanctioned by law.

    Tax evasion, upon the other hand, is a

    scheme used outside of those lawful meansand, when availed of, it usually subjects the

    taxpayer to further or additional civil or

    criminal liabilities.7 In practice, however, the

    dividing line between the two is unclear. As

    will be shown in this paper, the three

    branches of the government respond

    differently towards tax avoidance/tax

    planning schemes. This trend is troubling -because it lays the foundation for making

    criminals out of those who are otherwise

    innocently and legally engaged in

    minimizing their tax burden.8

    II. BACKGROUND OF THE STUDY

    Taxes are imposed on the theory that

    they are necessary for the government to

    supply the services needed by its citizens.However, no matter how useful taxes are to

    society, one cannot change the fact that it is

    unpleasant for the individuals to pay them.

    As such, it is just human nature for

    individuals to act on their own interests to

    avoid paying more taxes than they need to.

    There are two ways of doing so: one is to

    evade taxes and the other is to avoid them.

    In the Philippines, tax evasion is clearly

    made illegal by our laws. The legality of tax

    avoidance, however, is a gray area. There

    seems to be no categorical prohibition on taxavoidance under Philippine laws. However,

    the Bureau of Internal Revenue (BIR) rules

    and decides as if there is. This creates an

    unjust environment and leads to

    inefficiencies.

    An unjust environment is created when

    some taxpayers are caught and levied fines

    for acts that other taxpayers can get away

    with. Since there are no clear-cut rules, in

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    THELEGALITY OF THE ASSAULT ONTAXAVOIDANCEPRACTICES IN THEPHILIPPINES60

    practice, the liability of a taxpayer to pay

    additional taxes largely depends on the BIR

    personnel assigned to interpret the nature ofa taxpayer's transaction. The bigger

    companies, which the BIR usually focuses

    their resources on, are more likely to receive

    assessments for tax avoidance practices

    compared to smaller companies doing

    almost the same act.The inefficiencies are borne out of the

    taxpayer's desire to decrease his tax

    payments. For instance, he will enlist

    himself, his employees if any, and use his

    resources towards the goal of avoiding taxes.The BIR, on the other hand, will enlist its

    personnel to weed out "sham" transactions

    entered into for the sole purpose of avoiding

    taxes. Certain business decisions are also

    unnecessarily made more complicated and

    even altered because the decision makers

    need to provide allowances for risks. Theyneed to make allowances just in case the BIR

    treats some of their valid business

    transactions as "sham" transactions.

    To avoid further injustice and

    inefficiencies, a law should be passed

    defining what constitutes permissible andimpermissible tax avoidance. Foreign

    countries like the United States, Australia,

    Germany and France have adopted anti-

    avoidance laws. For a country like the

    Philippines, whose budget deficit andforeign debts have been on a constant rise,

    the need for an anti-avoidance law to prevent

    further tax leakages cannot be

    overemphasized.

    III.OBJECTIVES AND METHODOLOGY OF THE STUDY

    The main objective of this paper is to

    present the current legal status of tax

    avoidance/tax planning schemes in the

    Philippines. This will be done by examiningthe response of the three branches of the

    government towards tax planning. The

    discussion will emphasize on the undesirable

    consequences of the present system wherein

    what constitutes permissible and

    impermissible tax avoidance practices cannot

    be traced to the Tax Code, but is a matter that

    is left entirely to the discretion of the BIR.

    Delimitations of the Study

    1. Tax avoidance mechanisms can beinternational or domestic in nature. The

    discussion of this paper shall be limited

    to domestic tax avoidance schemes.

    2. It is not the objective of this paper toeliminate tax avoidance/tax planning

    schemes completely. It is not feasible to

    do so. However, this paper operates on

    the assumption that it is important to

    keep the level of tax avoidance/abusive

    tax planning under control.

    3. In determining the legality of taxavoidanc