By: Garry Pagaspas, CPA
As we are all aware, Republic Act No. 11534 (RA 11534) or Corporate Recovery and Tax Incentives for Enterprises (CREATE) in Philippines has been signed into law last March 26, 2021 with Vetoed Provisions and became effective last April 11, 2021.
One notable aspect of RA 11534 CREATE Philippines is the rationalization of incentives thereby harmonizing the available tax incentives that Investment Promotion Agencies could grant (e.g. income tax holiday (ITH), enhanced deductions (ED), and 5% special corporate income tax (SCIT) among others), creating a new set of standards for those who can avail in certain locations throughout the Philippines. Under this, the question is how would RA 11534 CREATE Philippines affect the tax incentives of existing registered business enterprises (RBE) with the fourteen (14) Investment Promotion Agencies (IPA) such as Philippine Economic Zones Authority (PEZA) and Board of Investments (BOI)?
To address the above question, RA 11534 provides in Sections 311 and Section 296 some transition rules for existing registered business enterprises with PEZA (those in economic zones/ IT parks/ IT buildings, etc.), with BOI, and other IPAs. Below is the summary of tax incentives of existing PEZA, BOI, etc. existing entities under RA 11534 CREATE Philippines:
Impact on those under ITH and 5% GIT;
As provided under RA 11534 CREATE Philippines, existing registered business enterprises with PEZA, BOI, and other IPAs will continue as follows:
On comment, the transition provisions under Section 311 of the RA 11534 CREATE Philippines is a bit silent about the impact on other incentives (e.g. such as VAT exemptions on importation, machineries, etc.) as provided in the respective charters of the IPAs. The author could just speculate that with the tenor of the law on extending the existing incentives, it could follow that the rest of the incentives would still continue to be enjoyed, unless otherwise, expressly provided. Hope this area would be clarified soon.
Eligibility for new incentives under RA 11534 CREATE Philippines
RA 11534 CREATE Philippines provides as well that existing registered business enterprises with PEZA, BOI, and other IPAs could be eligible for new incentives under RA 11534 CREATE, subject to the conditions and qualifications under Strategic Investments Priorities Plan (SIPP). The original text (enrolled bill forwarded to President for approval) actually provides for an extension of up to 10 years but was Vetoed by the President justifying among others that only new export enterprises should be allowed new incentives. As such, we will have to wait and see how the Strategic Investments Priorities Plan would deal with this.
Export enterprises’ option to apply for new incentives under RA 11534 CREATE Philippines
RA 11534 CREATE Philippines likewise provides that existing registered business enterprises with PEZA, BOI, and other IPAs may have the option to apply for new incentives under RA 11534 CREATE. This is something they would have to carefully evaluate as it seems they can still continue their existing incentives until expiration of the ITH granted to them and up to 10 years of 5% gross income taxation or until April 10, 2031.
Relocation to avail of ITH extension for 3 years under RA 11534 CREATE Philippines
Under RA 11534 CREATE Philippines, existing registered business enterprises with PEZA, BOI, and other IPAs may as well consider relocating their business from National Capital Region (NCR) to metropolitan areas or areas adjacent to NCR or to other areas within the Philippines to avail of an ITH extension for 3 years from completion of relocation. Notably, the rationalization of tax incentives under RA 11534 CREATE has put much consideration to developing other areas outside NCR so that relocating an existing registered enterprise with IPAs could be an option for avail of the new tax incentives based on qualification.
In summary, existing registered business enterprises under IPAs (e.g. PEZA BOI) would seem unaffected in short to mid-term as they could continue their ITH until expiration of the granted term and continue further their 5% gross income tax for 10 years from effectivity of RA 11534 CREATE Philippines on April 11, 2021 or until April 10, 2031.
Existing registered business enterprises under IPAs (e.g. PEZA BOI) could qualify for the incentives under RA 11534 CREATE subject to the conditions and qualifications under the Strategic Investments Priorities Plan (SIPP) that is yet to be promulgated and issued. For those export enterprises, they could have the option to apply for the new incentives under RA 11534 CREATE Philippines based on the SIPP guidelines. Finally, they may also consider relocating their business outside NCR should they wish to avail of the new incentives under RA 11534 CREATE.
The above rules are premised on Section 296 and 311 of RA 11534 CREATE Philippines supplemented by personal views of the author. These are further subject to guidelines under the SIPP that will hopefully be issued soon. Will make necessary updates as soon as SIPP becomes available.
Garry is a Certified Public Accountant (CPA) and a law degree holder in tax practice for almost two (2) decades now helping further taxpayers on securing BIR Rulings, appeal of BIR Ruling denials, company registrations in Philippines, tax compliance, tax savings, tax assessments, tax refunds, and other related professional tax services. He has likewise been helping out local and foreign investors/clients determine the most appropriate legal entity to register in the Philippines based on intended operations, the eventual registration of such legal business entity and other related professional services such as securing Ph Visa, payroll, and business consultancy. He was formerly with the academe and is presently a frequent speaker of Tax and Accounting Center, Inc. and other seminar entities.
Disclaimer: This is for purposes of academic discussions only as personally summarized by the author, not of Tax and Accounting Center, Inc. and is not a substitute for an expert opinion. Please consult your preferred tax and/or legal consultant for the specific details applicable to your circumstances.
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