G.R. No. 169507. January 11, 2016.

*
 
AIR CANADA, petitioner, vs. COMMISSIONER OF
INTERNAL REVENUE, respondent.

Taxation; Air Transportation; Petitioner, as an offline

international carrier with no landing rights in the Philippines, is
not liable to tax on Gross Philippine Billings under Section 28(A)
(3) of the 1997 National Internal Revenue Code (NIRC).—At the
outset, we affirm the Court of Tax Appeals’ ruling that petitioner,
as an offline international carrier with no landing rights in the
Philippines, is not liable to tax on Gross Philippine Billings under
Section 28(A)(3) of the 1997 National Internal Revenue Code:
SEC. 28. Rates of Income Tax on Foreign Corporations.—(A)
Tax on Resident Foreign Corporations.—.  .  .  .  (3) International
Carrier.—An international carrier doing business in the
Philippines shall pay a tax of two and one-half percent (2 1/2%) on
its ‘Gross Philippine Billings’ as defined hereunder: (a)
International Air Carrier.—‘Gross Philippine Billings’ refers to the
amount of gross revenue derived from carriage of persons, excess
baggage, cargo and mail originating from the Philippines in a
continuous and uninterrupted flight, irrespective of the place of
sale or issue and the place of payment of the ticket or passage
document: Provided, That tickets revalidated, exchanged and/or
indorsed to another international airline form part of the Gross
Philippine Billings if the passenger boards a plane in a port or
point in the Philippines: Provided, further, That for a flight which
originates from the Philippines, but transshipment of passenger
takes place at any port outside the Philippines on another airline,
only the aliquot portion of the cost of the ticket corresponding to
the leg flown from the Philippines to the point of transshipment
shall form part of Gross Philippine Billings. (Emphasis supplied)
Under the foregoing provision, the tax attaches only when the
carriage of persons, excess baggage, cargo, and mail originated
from the Philippines in a continuous and uninterrupted flight,
regardless of where the passage documents were sold. Not having
flights to and from the Philippines, petitioner is clearly not liable
for the Gross Philippine Billings tax.

_______________
 *  SECOND DIVISION.

 
 
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132 SUPREME COURT REPORTS ANNOTATED

Air Canada vs. Commissioner of Internal Revenue

Same; Resident Foreign Corporation; Petitioner falls within

the definition of resident foreign corporation under Section 28(A)
(1) of the 1997 National Internal Revenue Code (NIRC), thus, it
may be subject to thirty-two percent (32%) tax on its taxable
income.—Petitioner, an offline carrier, is a resident foreign
corporation for income tax purposes. Petitioner falls within the
definition of resident foreign corporation under Section 28(A)(1) of
the 1997 National Internal Revenue Code, thus, it may be subject
to 32% tax on its taxable income. x x x The definition of “resident
foreign corporation” has not substantially changed throughout the
amendments of the National Internal Revenue Code. All versions
refer to “a foreign corporation engaged in trade or business within
the Philippines.” Commonwealth Act No. 466, known as the
National Internal Revenue Code and approved on June 15, 1939,
defined “resident foreign corporation” as applying to “a foreign
corporation engaged in trade or business within the Philippines or
having an office or place of business therein.” Section 24(b)(2) of
the National Internal Revenue Code, as amended by Republic Act
No. 6110, approved on August 4, 1969, reads: Sec. 24. Rates of tax
on corporations.—. . . (b) Tax on foreign corporations.—. . . (2)
Resident corporations.—A corporation organized, authorized, or
existing under the laws of any foreign country, except a foreign
life insurance company, engaged in trade or business within the
Philippines, shall be taxable as provided in subsection (a) of this
section upon the total net income received in the preceding
taxable year from all sources within the Philippines.
Same; Same; Doing Business; Words and Phrases; The
Implementing Rules and Regulations (IRR) of Republic Act (RA)
No. 7042 clarifies that “doing business” includes “appointing
representatives or distributors, operating under full control of the
foreign corporation, domiciled in the Philippines or who in any
calendar year stay in the country for a period or periods totaling
one hundred eighty (180) days or more.”—Republic Act No. 7042
or the Foreign Investments Act of 1991 also provides guidance
with its definition of “doing business” with regard to foreign
corporations. Section 3(d) of the law enumerates the activities
that constitute doing business: d. the phrase “doing business”
shall include soliciting orders, service contracts, opening offices,
whether called “liaison” offices or branches; appointing
representatives or distributors domiciled in the Philippines or
who in any calendar year stay in the country for a period or
periods totalling one hundred eighty (180) days or more;
participating in the

 
 
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Air Canada vs. Commissioner of Internal Revenue

management, supervision or control of any domestic business,

firm, entity or corporation in the Philippines; and any other act
or acts that imply a continuity of commercial dealings or
arrangements, and contemplate to that extent the
performance of acts or works, or the exercise of some of the
functions normally incident to, and in progressive
prosecution of, commercial gain or of the purpose and
object of the business organization: Provided, however, That
the phrase “doing business” shall not be deemed to include mere
investment as a shareholder by a foreign entity in domestic
corporations duly registered to do business, and/or the exercise of
rights as such investor; nor having a nominee director or officer to
represent its interests in such corporation; nor appointing a
representative or distributor domiciled in the Philippines which
transacts business in its own name and for its own account[.]
(Emphasis supplied) While Section 3(d) above states that
“appointing a representative or distributor domiciled in the
Philippines which transacts business in its own name and for its
own account” is not considered as “doing business,” the
Implementing Rules and Regulations of Republic Act No. 7042
clarifies that “doing business” includes “appointing representatives
or distributors, operating under full control of the foreign
corporation, domiciled in the Philippines or who in any calendar
year stay in the country for a period or periods totaling one
hundred eighty (180) days or more[.]”
Air Transportation; Offline Carrier; Words and Phrases; An
offline carrier is “any foreign air carrier not certificated by the
[Civil Aeronautics] Board, but who maintains office or who has
designated or appointed agents or employees in the Philippines,
who sells or offers for sale any air transportation in behalf of said
foreign air carrier and/or others, or negotiate for, or holds itself out
by solicitation, advertisement, or otherwise sells, provides,
furnishes, contracts, or arranges for such transportation.”—An
offline carrier is “any foreign air carrier not certificated by the
[Civil Aeronautics] Board, but who maintains office or who has
designated or appointed agents or employees in the Philippines,
who sells or offers for sale any air transportation in behalf of said
foreign air carrier and/or others, or negotiate for, or holds itself
out by solicitation, advertisement, or otherwise sells, provides,
furnishes, contracts, or arranges for such transportation.”
“Anyone desiring to engage in the activities of an offline carrier
[must] apply to the [Civil Aeronautics] Board for such authority.”
Each offline carrier must file with the Civil Aeronautics

 
 
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134 SUPREME COURT REPORTS ANNOTATED

Air Canada vs. Commissioner of Internal Revenue

Board a monthly report containing information on the tickets

sold, such as the origin and destination of the passengers, carriers
involved, and commissions received. Petitioner is undoubtedly
“doing business” or “engaged in trade or business” in the
Philippines.
Taxation; Resident Foreign Corporation; Petitioner is a
resident foreign corporation that is taxable on its income derived
from sources within the Philippines.—Aerotel performs acts or
works or exercises functions that are incidental and beneficial to
the purpose of petitioner’s business. The activities of Aerotel bring
direct receipts or profits to petitioner. There is nothing on record
to show that Aerotel solicited orders alone and for its own account
and without interference from, let alone direction of, petitioner.
On the contrary, Aerotel cannot “enter into any contract on behalf
of [petitioner Air Canada] without the express written consent of
[the latter,]” and it must perform its functions according to the
standards required by petitioner. Through Aerotel, petitioner is
able to engage in an economic activity in the Philippines. Further,
petitioner was issued by the Civil Aeronautics Board an authority
to operate as an offline carrier in the Philippines for a period of
five years, or from April 24, 2000 until April 24, 2005. Petitioner
is a resident foreign corporation that is taxable on its income
derived from sources within the Philippines. Petitioner’s income
from sale of airline tickets, through Aerotel, is income realized
from the pursuit of its business activities in the Philippines.
Same; Same; Air Transportation; International air carrier[s]
maintain[ing] flights to and from the Philippines . . . shall be
taxed at the rate of two and one-half percent (2 1⁄2%) of its Gross
Philippine Billings[;] while international air carriers that do not
have flights to and from the Philippines but nonetheless earn
income from other activities in the country [like sale of airline
tickets] will be taxed at the rate of thirty-two percent (32%) of such
[taxable] income.—In the earlier case of South African Airways v.
Commissioner of Internal Revenue, 612 SCRA 665 (2010), this
court held that Section 28(A)(3)(a) does not categorically exempt
all international air carriers from the coverage of Section 28(A)(1).
Thus, if Section 28(A)(3)(a) is applicable to a taxpayer, then the
general rule under Section 28(A)(1) does not apply. If, however,
Section 28(A)(3)(a) does not apply, an international air carrier
would be liable for the tax under Section 28(A)(1). This court in
South African Airways declared that the correct interpretation of

 
 
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Air Canada vs. Commissioner of Internal Revenue

these provisions is that: “international air carrier[s]

maintain[ing] flights to and from the Philippines . . . shall be
taxed at the rate of 2 1/2% of its Gross Philippine Billings[;] while
international air carriers that do not have flights to and from the
Philippines but nonetheless earn income from other activities in
the country [like sale of airline tickets] will be taxed at the rate of
32% of such [taxable] income.”
Same; Tax Treaties; Words and Phrases; A tax treaty is an
agreement entered into between sovereign states “for purposes of
eliminating double taxation on income and capital, preventing
fiscal evasion, promoting mutual trade and investment, and
according fair and equitable tax treatment to foreign residents or
nationals.”—A tax treaty is an agreement entered into between
sovereign states “for purposes of eliminating double taxation on
income and capital, preventing fiscal evasion, promoting mutual
trade and investment, and according fair and equitable tax
treatment to foreign residents or nationals.” Commissioner of
Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87
(1999), explained the purpose of a tax treaty: The purpose of these
international agreements is to reconcile the national fiscal
legislations of the contracting parties in order to help the
taxpayer avoid simultaneous taxation in two different
jurisdictions. More precisely, the tax conventions are drafted with
a view towards the elimination of international juridical double
taxation, which is defined as the imposition of comparable taxes
in two or more states on the same taxpayer in respect of the same
subject matter and for identical periods. The apparent rationale
for doing away with double taxation is to encourage the free flow
of goods and services and the movement of capital, technology and
persons between countries, conditions deemed vital in creating
robust and dynamic economies. Foreign investments will only
thrive in a fairly predictable and reasonable international
investment climate and the protection against double taxation is
crucial in creating such a climate.
Same; Same; Pacta Sunt Servanda; Words and Phrases;
Pacta sunt servanda is a fundamental international law principle
that requires agreeing parties to comply with their treaty
obligations in good faith.—Observance of any treaty obligation
binding upon the government of the Philippines is anchored on
the constitutional provision that the Philippines “adopts the
generally accepted princi-

 
 
136

136 SUPREME COURT REPORTS ANNOTATED

Air Canada vs. Commissioner of Internal Revenue

ples of international law as part of the law of the land[.]”

Pacta sunt servanda is a fundamental international law principle
that requires agreeing parties to comply with their treaty
obligations in good faith.
Same; Same; Same; The application of the provisions of the
National Internal Revenue Code (NIRC) must be subject to the
provisions of tax treaties entered into by the Philippines with
foreign countries.—The application of the provisions of the
National Internal Revenue Code must be subject to the provisions
of tax treaties entered into by the Philippines with foreign
countries. In Deutsche Bank AG Manila Branch v. Commissioner
of Internal Revenue, 704 SCRA 216 (2013), this court stressed the
binding effects of tax treaties. It dealt with the issue of “whether
the failure to strictly comply with [Revenue Memorandum Order]
RMO No. 1-2000 will deprive persons or corporations of the
benefit of a tax treaty.”
Air Transportation; General Sales Agent; Words and Phrases;
Section 3 of Republic Act (RA) No. 776, as amended, also known as
The Civil Aeronautics Act of the Philippines, defines a general
sales agent as “a person, not a bona fide employee of an air carrier,
who pursuant to an authority from an airline, by itself or through
an agent, sells or offers for sale any air transportation, or
negotiates for, or holds himself out by solicitation, advertisement
or otherwise as one who sells, provides, furnishes, contracts or
arranges for, such air transportation.”—Section 3 of Republic Act
No. 776, as amended, also known as The Civil Aeronautics Act of
the Philippines, defines a general sales agent as “a person, not a
bona fide employee of an air carrier, who pursuant to an authority
from an airline, by itself or through an agent, sells or offers for
sale any air transportation, or negotiates for, or holds himself out
by solicitation, advertisement or otherwise as one who sells,
provides, furnishes, contracts or arranges for, such air
transportation.” General sales agents and their property, property
rights, equipment, facilities, and franchise are subject to the
regulation and control of the Civil Aeronautics Board. A permit or
authorization issued by the Civil Aeronautics Board is required
before a general sales agent may engage in such an activity.
Same; Same; Aerotel is a dependent agent of petitioner
pursuant to the terms of the Passenger General Sales Agency
Agreement executed between the parties.—Aerotel is a dependent
agent of petitioner pursuant to the terms of the Passenger
General Sales Agency

 
 
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Agreement executed between the parties. It has the authority

or power to conclude contracts or bind petitioner to contracts
entered into in the Philippines. A third party liability on contracts
of Aerotel is to petitioner as the principal, and not to Aerotel, and
liability to such third party is enforceable against petitioner.
While Aerotel maintains a certain independence and its activities
may not be devoted wholly to petitioner, nonetheless, when
representing petitioner pursuant to the Agreement, it must carry
out its functions solely for the benefit of petitioner and according
to the latter’s Manual and written instructions. Aerotel is
required to submit its annual sales plan for petitioner’s approval.
In essence, Aerotel extends to the Philippines the transportation
business of petitioner. It is a conduit or outlet through which
petitioner’s airline tickets are sold.
Taxation; Income Taxation; Income attributable to Aerotel or
from business activities effected by petitioner through Aerotel may
be taxed in the Philippines.—Under Article VII (Business Profits)
of the Republic of the Philippines-Canada Tax Treaty, the
“business profits” of an enterprise of a Contracting State is
“taxable only in that State[,] unless the enterprise carries on
business in the other Contracting State through a permanent
establishment[.]” Thus, income attributable to Aerotel or from
business activities effected by petitioner through Aerotel may be
taxed in the Philippines. However, pursuant to the last paragraph
of Article VII in relation to Article VIII (Shipping and Air
Transport) of the same Treaty, the tax imposed on income derived
from the operation of ships or aircraft in international traffic
should not exceed 1 1/2% of gross revenues derived from
Philippine sources.
Same; Tax Treaties; Tax treaties form part of the law of the
land, and jurisprudence has applied the statutory construction
principle that specific laws prevail over general ones.—While
petitioner is taxable as a resident foreign corporation under
Section 28(A)(1) of the 1997 National Internal Revenue Code on
its taxable income from sale of airline tickets in the Philippines, it
could only be taxed at a maximum of 1 1/2% of gross revenues,
pursuant to Article VIII of the Republic of the Philippines-Canada
Tax Treaty that applies to petitioner as a “foreign corporation
organized and existing under the laws of Canada[.]” Tax treaties
form part of the law of the land, and jurisprudence has applied
the statutory construction principle that specific laws prevail over
general ones. The Republic of the Philip-

 
 
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138 SUPREME COURT REPORTS ANNOTATED

Air Canada vs. Commissioner of Internal Revenue

pines-Canada Tax Treaty was ratified on December 21, 1977

and became valid and effective on that date. On the other hand,
the applicable provisions relating to the taxability of resident
foreign corporations and the rate of such tax found in the
National Internal Revenue Code became effective on January 1,
1998. Ordinarily, the later provision governs over the earlier one.
In this case, however, the provisions of the Republic of the
Philippines-Canada Tax Treaty are more specific than the
provisions found in the National Internal Revenue Code.
Same; Tax Refund; In an action for the refund of taxes
allegedly erroneously paid, the Court of Tax Appeals (CTA) may
determine whether there are taxes that should have been paid in
lieu of the taxes paid.—In SMI-ED Philippines Technology, Inc. v.
Commissioner of Internal Revenue, 739 SCRA 691 (2014), we have
ruled that “[i]n an action for the refund of taxes allegedly
erroneously paid, the Court of Tax Appeals may determine
whether there are taxes that should have been paid in lieu of the
taxes paid.” The determination of the proper category of tax that
should have been paid is incidental and necessary to resolve the
issue of whether a refund should be granted.
Same; “Tax” and “Debt,” Distinguished.—Philex Mining
Corporation v. Commissioner of Internal Revenue, 294 SCRA 687
(1998), ruled that “[t]here is a material distinction between a tax
and debt. Debts are due to the Government in its corporate
capacity, while taxes are due to the Government in its sovereign
capacity.” Rejecting Philex Mining’s assertion that the imposition
of surcharge and interest was unjustified because it had no
obligation to pay the excise tax liabilities within the prescribed
period since, after all, it still had pending claims for VAT input
credit/refund with the Bureau of Internal Revenue.
Same; Offsetting; The taxpayer cannot simply refuse to pay tax
on the ground that the tax liabilities were offset against any
alleged claim the taxpayer may have against the government.—In
sum, the rulings in those cases were to the effect that the
taxpayer cannot simply refuse to pay tax on the ground that the
tax liabilities were offset against any alleged claim the taxpayer
may have against the government. Such would merely be in
keeping with the basic policy on prompt collection of taxes as the
lifeblood of the government. Here, what is involved is a denial of a
taxpayer’s refund claim on

 
 
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Air Canada vs. Commissioner of Internal Revenue

account of the Court of Tax Appeals’ finding of its liability for

another tax in lieu of the Gross Philippine Billings tax that was
allegedly erroneously paid.

PETITION for review on certiorari of the decision and

resolution of the Court of Tax Appeals.
The facts are stated in the opinion of the Court.
  Quisumbing, Torres for petitioner.
  The Solicitor General for respondent.

LEONEN, J.:
 
An offline international air carrier selling passage
tickets in the Philippines, through a general sales agent, is
a resident foreign corporation doing business in the
Philippines. As such, it is taxable under Section 28(A)(1),
and not Section 28(A)(3) of the 1997 National Internal
Revenue Code, subject to any applicable tax treaty to which
the Philippines is a signatory. Pursuant to Article 8 of the
Republic of the Philippines-Canada Tax Treaty, Air
Canada may only be imposed a maximum tax of 1 1/2% of
its gross revenues earned from the sale of its tickets in the
Philippines.
This is a Petition for Review1 appealing the August 26,
2005 Decision2 of the Court of Tax Appeals En Banc, which
in turn affirmed the December 22, 2004 Decision3 and April
8,

_______________

1   Rollo, pp. 9-40. The Petition was filed pursuant to Rule 45 of the
Rules of Court.
2  Id., at pp. 57-72. The Decision was penned by Associate Justice Olga
Palanca-Enriquez and concurred in by Presiding Justice Ernesto D.
Acosta and Associate Justices Lovell R. Bautista, Erlinda P. Uy, and
Caesar A. Casanova. Associate Justice Juanito C. Castañeda, Jr.
voluntarily inhibited himself.
3   Id., at pp. 41-51. The Decision was penned by Associate Justice
Lovell R. Bautista and concurred in by Presiding Justice Ernesto D.
Acosta and Associate Justice Caesar A. Casanova.

 
 
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140 SUPREME COURT REPORTS ANNOTATED

Air Canada vs. Commissioner of Internal Revenue

2005 Resolution4 of the Court of Tax Appeals First

Division denying Air Canada’s claim for refund.
Air Canada is a “foreign corporation organized and
existing under the laws of Canada[.]”5 On April 24, 2000, it
was granted an authority to operate as an offline carrier by
the Civil Aeronautics Board, subject to certain conditions,
which authority would expire on April 24, 2005.6 “As an
offline carrier, [Air Canada] does not have flights
originating from or coming to the Philippines [and does
not] operate any airplane [in] the Philippines[.]”7
 On July 1, 1999, Air Canada engaged the services of
Aerotel Ltd., Corp. (Aerotel) as its general sales agent in
the Philippines.8 Aerotel “sells [Air Canada’s] passage
documents in the Philippines.”9
For the period ranging from the third quarter of 2000 to
the second quarter of 2002, Air Canada, through Aerotel,
filed quarterly and annual income tax returns and paid the
income tax on Gross Philippine Billings in the total amount
of P5,185,676.77,10 detailed as follows:
 

Applicable
Date Filed/Paid Amount of Tax
Quarter[/]Year
3rd Qtr 2000 November 29, 2000 P395,165.00
Annual ITR 2000 April 16, 2001 381,893.59
1st Qtr 2001 May 30, 2001 522,465.39  
2nd Qtr 2001 August 29, 2001 1,033,423.34

_______________

4  Id., at pp. 52-56. The Resolution was signed by Presiding Justice

Ernesto D. Acosta and Associate Justices Lovell R. Bautista and Caesar A.
Casanova.
5  Id., at p. 59, Court of Tax Appeals En Banc Decision.
6  Id., at p. 78, Civil Aeronautics Board Executive Director’s Letter.
7  Id., at p. 300, Air Canada’s Memorandum.
8  Id., at pp. 118-140, Passenger General Sales Agency Agreement
Between Air Canada and Aerotel Ltd., Corp.
9  Id., at p. 300, Air Canada’s Memorandum.
10  Id., at pp. 59-60, Court of Tax Appeals En Banc Decision.

 
 
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Air Canada vs. Commissioner of Internal Revenue

3rd Qtr 2001 November 29, 2001 765,021.28

Annual ITR 2001 April 15, 2002 328,193.93
1st Qtr 2002 May 30, 2002 P594,850.13  
2nd Qtr 2002 August 29, 2002 1,164,664.11
TOTAL   P5,185,676.7711

 
 On November 28, 2002, Air Canada filed a written claim
for refund of alleged erroneously paid income taxes
amounting to P5,185,676.77 before the Bureau of Internal
Revenue,12 Revenue District Office No. 47-East Makati.13 It
found basis from the revised definition14 of Gross
Philippine Billings under Section 28(A)(3)(a) of the 1997
National Internal Revenue Code:

SEC. 28. Rates of Income Tax on Foreign

Corporations.—
(A) Tax on Resident Foreign Corporations.—
....

_______________

11  Id.
12  Id., at p. 60.
13  Id., at p. 13, Petition.
14   Pres. Decree No. 1355 (1978), Sec. 1 defines Gross Philippine
Billings as: “Gross Philippine billings” includes gross revenue realized
from uplifts anywhere in the world by any international carrier doing
business in the Philippines of passage documents sold therein, whether for
passenger, excess baggage or mail, provided the cargo or mail originates
from the Philippines. The gross revenue realized from the said cargo or
mail shall include the gross freight charge up to final destination. Gross
revenues from chartered flights originating from the Philippines shall
likewise form part of “gross Philippine billings” regardless of the place of
sale or payment of the passage documents. For purposes of determining
the taxability of revenues from chartered flights, the term “originating
from the Philippines” shall include flight of passengers who stay in the
Philippines for more than forty-eight (48) hours prior to embarkation.
(Emphasis supplied)

 
 
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142 SUPREME COURT REPORTS ANNOTATED

Air Canada vs. Commissioner of Internal Revenue

(3) International Carrier.—An international

carrier doing business in the Philippines shall pay a
tax of two and one-half percent (2 1/2%) on its ‘Gross
Philippine Billings’ as defined hereunder:
(a) International Air Carrier.—‘Gross Philippine
Billings’ refers to the amount of gross revenue
derived from carriage of persons, excess
 baggage, cargo and mail originating from the
Philippines in a continuous and uninterrupted
flight, irrespective of the place of sale or issue
and the place of payment of the ticket or
passage document: Provided, That tickets
revalidated, exchanged and/or indorsed to another
international airline form part of the Gross Philippine
Billings if the passenger boards a plane in a port or
point in the Philippines: Provided, further, That for a
flight which originates from the Philippines, but
transshipment of passenger takes place at any port
outside the Philippines on another airline, only the
aliquot portion of the cost of the ticket corresponding
to the leg flown from the Philippines to the point of
transshipment shall form part of Gross Philippine
Billings. (Emphasis supplied)
 
To prevent the running of the prescriptive period, Air
Canada filed a Petition for Review before the Court of Tax
Appeals on November 29, 2002.15 The case was docketed as
CTA Case No. 6572.16
On December 22, 2004, the Court of Tax Appeals First
Division rendered its Decision denying the Petition for
Review and, hence, the claim for refund.17 It found that Air
Canada was engaged in business in the Philippines
through a local agent that sells airline tickets on its behalf.
As such, it should be taxed as a resident foreign
corporation at the regular rate

_______________

15  Rollo, p. 60, Court of Tax Appeals En Banc Decision.

16  Id., at p. 41, Court of Tax Appeals First Division Decision.
17  Id., at p. 51.

 
 
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Air Canada vs. Commissioner of Internal Revenue

of 32%.18 Further, according to the Court of Tax Appeals

First Division, Air Canada was deemed to have established
a “permanent establishment”19 in the Philippines under
Article V(2)(i) of the Republic of the Philippines-Canada
Tax Treaty20 by the appointment of the local sales agent,
“in which [the] petitioner uses its premises as an outlet
where sales of [airline] tickets are made[.]”21
Air Canada seasonably filed a Motion for
Reconsideration, but the Motion was denied in the Court of
Tax Appeals First Division’s Resolution dated April 8, 2005
for lack of merit.22 The First Division held that while Air
Canada was not liable for tax on its Gross Philippine
Billings under Section 28(A)(3), it was nevertheless liable
to pay the 32% corporate income tax on income derived
from the sale of airline tickets within the Philippines
pursuant to Section 28(A)(1).23
On May 9, 2005, Air Canada appealed to the Court of
Tax Appeals En Banc.24 The appeal was docketed as C.T.A.
E.B. No. 86.25
In the Decision dated August 26, 2005, the Court of Tax
Appeals En Banc affirmed the findings of the First
Division.26 The En Banc ruled that Air Canada is subject to
tax as a resident foreign corporation doing business in the
Philippines since it sold airline tickets in the Philippines.27
The Court of Tax Appeals En Banc disposed thus:

_______________

18  Id., at pp. 47-48.

19  Id., at p. 51.
20  Id., at p. 50.
21  Id., at p. 51.
22   Id., at pp. 53 and 56, Court of Tax Appeals First Division
Resolution.
23  Id., at p. 54.
24  Id., at p. 16, Petition.
25  Id.
26  Id., at p. 71, Court of Tax Appeals En Banc Decision.
27  Id., at pp. 67-68.

 
 
144

144 SUPREME COURT REPORTS ANNOTATED

Air Canada vs. Commissioner of Internal Revenue

WHEREFORE, premises considered, the instant

petition is hereby DENIED DUE COURSE, and
accordingly, DISMISSED for lack of merit.28
 
Hence, this Petition for Review29 was filed.
 The issues for our consideration are:
First, whether petitioner Air Canada, as an offline
international carrier selling passage documents through a
general sales agent in the Philippines, is a resident foreign
corporation within the meaning of Section 28(A)(1) of the
1997 National Internal Revenue Code;
Second, whether petitioner Air Canada is subject to the
2 1/2% tax on Gross Philippine Billings pursuant to Section
28(A)(3). If not, whether an offline international carrier
selling passage documents through a general sales agent
can be subject to the regular corporate income tax of 32%30
on taxable income pursuant to Section 28(A)(1);
Third, whether the Republic of the Philippines-Canada
Tax Treaty applies, specifically:
a. Whether the Republic of the Philippines-Canada
Tax Treaty is enforceable;
b. Whether the appointment of a local general sales
agent in the Philippines falls under the definition of
“permanent establishment” under Article V(2)(i) of

_______________

28  Id., at p. 71.
29   The Petition was received by the court on October 20, 2005.
Respondent filed its Comment (id., at pp. 252-261) on August 6, 2007.
Subsequently, pursuant to the court’s Resolution (id., at pp. 282-283)
dated November 28, 2007, petitioner filed its Memorandum (id., at pp.
284-328) on February 21, 2008 and respondent filed its Manifestation (id.,
at pp. 349-350) on January 5, 2009, stating that it is adopting its
Comment as its Memorandum.
30   Pursuant to Rep. Act No. 9337 (2005), the rate is reduced to 30%
beginning January 1, 2009.

 
 
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the Republic of the Philippines-Canada Tax

Treaty; and
Lastly, whether petitioner Air Canada is entitled to the
refund of P5,185,676.77 pertaining allegedly to erroneously
paid tax on Gross Philippine Billings from the third
quarter of 2000 to the second quarter of 2002.
 Petitioner claims that the general provision imposing
the regular corporate income tax on resident foreign
corporations provided under Section 28(A)(1) of the 1997
National Internal Revenue Code does not apply to
“international carriers,”31 which are especially classified
and taxed under Section 28(A)(3).32 It adds that the fact
that it is no longer subject to Gross Philippine Billings tax
as ruled in the assailed Court of Tax Appeals Decision
“does not render it ipso facto subject to 32% income tax on
taxable income as a resident foreign corporation.”33
Petitioner argues that to impose the 32% regular corporate
income tax on its income would violate the Philippine
government’s covenant under Article VIII of the Republic of
the Philippines-Canada Tax Treaty not to impose a tax
higher than 1 1/2% of the carrier’s gross revenue derived
from sources within the Philippines.34 It would also
allegedly result in “inequitable tax treatment of online and
offline international air carriers[.]”35
Also, petitioner states that the income it derived from
the sale of airline tickets in the Philippines was income
from services and not income from sales of personal
property.36 Petitioner cites the deliberations of the
Bicameral Conference Committee on House Bill No. 9077
(which eventually became the 1997 National Internal
Revenue Code), particularly Sena-

_______________

31  Rollo, p. 22, Petition, and p. 307, Air Canada’s Memorandum.

32  Id.
33  Id., at p. 28, Petition.
34  Id., at pp. 23-24, Petition, and p. 315, Air Canada’s Memorandum.
35  Id., at p. 319, Air Canada’s Memorandum.
36  Id., at pp. 28-29, Petition.

 
 
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146 SUPREME COURT REPORTS ANNOTATED

Air Canada vs. Commissioner of Internal Revenue

tor Juan Ponce Enrile’s statement,37 to reveal the

“legislative intent to treat the revenue derived from air
carriage as income from services, and that the carriage of
passenger or cargo as the activity that generates the
income.”38 Accordingly, applying the principle on the situs
of taxation in taxation of services, petitioner claims that its
income derived “from services rendered outside the
Philippines [was] not subject to Philippine income
taxation.”39
Petitioner further contends that by the appointment of
Aerotel as its general sales agent, petitioner cannot be
considered to have a “permanent establishment”40 in the
Philippines pursuant to Article V(6) of the Republic of the
Philippines-Canada Tax Treaty.41 It points out that Aerotel
is an “independent general sales agent that acts as such for
. . . other international airline companies in the ordinary
course of its business.”42 Aerotel sells passage tickets on
behalf of petitioner and receives a commission for its
services.43 Petitioner states that even the Bureau of
Internal Revenue — through VAT Ruling No. 003-04 dated
February 14, 2004 — has conceded that an offline
international air carrier, having no flight operations to and
from the Philippines, is not deemed engaged in business in
the Philippines by merely appointing a

_______________

37   Id., at p. 29. According to Senator Juan Ponce Enrile, “the gross

Philippine billings of international air carriers must refer to flown
revenue because this is an income from services and this will make the
determination of the tax base a lot easier by following the same rule in
determining the liability of the carrier for common carrier’s tax.” (Minutes
of the Bicameral Conference Committee on House Bill No. 9077
[Comprehensive Tax Reform Program], 10 October 1997, pp. 19-20)
38  Id.
39  Id., at p. 313, Air Canada’s Memorandum.
40  Id., at p. 35, Petition.
41  Id., Petition, and p. 322, Air Canada’s Memorandum.
42  Id., at p. 321, Air Canada’s Memorandum.
43  Id., at p. 35, Petition.

 
 
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Air Canada vs. Commissioner of Internal Revenue

general sales agent.44 Finally, petitioner maintains that

its “claim for refund of erroneously paid Gross Philippine
Billings cannot be denied on the ground that [it] is subject
to income tax under Section 28(A)(1)”45 since it has not
been assessed at all by the Bureau of Internal Revenue for
any income tax liability.46
On the other hand, respondent maintains that petitioner
is subject to the 32% corporate income tax as a resident
foreign corporation doing business in the Philippines.
Petitioner’s total payment of P5,185,676.77 allegedly shows
that petitioner was earning a sizable income from the sale
of its plane tickets within the Philippines during the
relevant period.47 Respondent further points out that this
court in Commissioner of Internal Revenue v. American
Airlines, Inc.,48 which in turn cited the cases involving the
British Overseas Airways Corporation and Air India, had
already settled that “foreign airline companies which sold
tickets in the Philippines through their local agents .  .  .
[are] considered resident foreign corporations engaged in
trade or business in the country.”49 It also cites Revenue
Regulations No. 6-78 dated April 25, 1978, which defined
the phrase “doing business in the Philippines” as including
“regular sale of tickets in the Philippines by offline
international airlines either by themselves or through their
agents.”50
Respondent further contends that petitioner is not
entitled to its claim for refund because the amount of
P5,185,676.77 it paid as tax from the third quarter of 2000
to the second quar-

_______________

44   Id., at pp. 35-36, Petition, and pp. 322-323, Air Canada’s

Memorandum.
45  Id., at p. 37, Petition, and p. 325, Air Canada’s Memorandum.
46  Id., Petition, and pp. 325-326, Air Canada’s Memorandum.
47  Id., at p. 256, Commissioner of Internal Revenue’s Comment.
48   259 Phil. 757; 180 SCRA 274 (1989) [Per J. Regalado, Second
Division].
49  Rollo, p. 258, Commissioner of Internal Revenue’s Comment.
50  Id., at p. 257.

 
 
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148 SUPREME COURT REPORTS ANNOTATED

Air Canada vs. Commissioner of Internal Revenue

ter of 2001 was still short of the 32% income tax due for
the period.51 Petitioner cannot allegedly claim good faith in
its failure to pay the right amount of tax since the National
Internal Revenue Code became operative on January 1,
1998 and by 2000, petitioner should have already been
aware of the implications of Section 28(A)(3) and the
decided cases of this court’s ruling on the taxability of
offline international carriers selling passage tickets in the
Philippines.52
 
I
 
At the outset, we affirm the Court of Tax Appeals’ ruling
that petitioner, as an offline international carrier with no
landing rights in the Philippines, is not liable to tax on
Gross Philippine Billings under Section 28(A)(3) of the
1997 National Internal Revenue Code:
 
SEC. 28. Rates of Income Tax on Foreign
Corporations.—
(A) Tax on Resident Foreign Corporations.—
....
(3) International Carrier.—An international
carrier doing business in the Philippines shall
pay a tax of two and one-half percent (2 1/2%) on
its ‘Gross Philippine Billings’ as defined
hereunder:
(a) International Air Carrier.—‘Gross
Philippine Billings’ refers to the amount of gross
revenue derived from carriage of persons, excess
baggage, cargo and mail originating from the
Philippines in a continuous and uninterrupted
flight, irrespective of the place of sale or issue
and the place of payment of the ticket or passage
document: Provided, That tickets revalidated,
exchanged and/or indorsed to another
international airline form part of the Gross

_______________

51  Id., at p. 260.
52  Id., at pp. 260-261.

 
 
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Air Canada vs. Commissioner of Internal Revenue
 Philippine Billings if the passenger boards a
plane in a port or point in the Philippines:
Provided, further, That for a flight which
originates from the Philippines, but
transshipment of passenger takes place at any
port outside the Philippines on another airline,
only the aliquot portion of the cost of the ticket
corresponding to the leg flown from the
Philippines to the point of transshipment shall
form part of Gross Philippine Billings.
(Emphasis supplied)
 
Under the foregoing provision, the tax attaches only
when the carriage of persons, excess baggage, cargo, and
mail originated from the Philippines in a continuous and
uninterrupted flight, regardless of where the passage
documents were sold.
Not having flights to and from the Philippines,
petitioner is clearly not liable for the Gross Philippine
Billings tax.
 
II
 
Petitioner, an offline carrier, is a resident foreign
corporation for income tax purposes. Petitioner falls within
the definition of resident foreign corporation under Section
28(A)(1) of the 1997 National Internal Revenue Code, thus,
it may be subject to 32%53 tax on its taxable income:
 
SEC. 28. Rates of Income Tax on Foreign
Corporations.—
(A) Tax on Resident Foreign Corporations.—
(1) In General.—Except as otherwise
provided in this Code, a corporation
organized, authorized, or existing under
the laws of any foreign country, engaged in
trade or business within the Philippines,
shall be subject to an income tax equiva-

_______________

53   Pursuant to Rep. Act No. 9337 (2005), the rate is reduced to 30%
beginning January 1, 2009.

 
 
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150 SUPREME COURT REPORTS ANNOTATED
Air Canada vs. Commissioner of Internal Revenue

lent to thirty-five percent (35%) of the taxable

income derived in the preceding taxable year
from all sources within the Philippines: Provided,
That effective January 1, 1998, the rate of income tax
shall be thirty-four percent (34%); effective January 1,
1999, the rate shall be thirty-three percent (33%); and
effective January 1, 2000 and thereafter, the rate
shall be thirty-two percent (32%).54 (Emphasis
supplied)
 
The definition of “resident foreign corporation” has not
substantially changed throughout the amendments of the
National Internal Revenue Code. All versions refer to “a
foreign corporation engaged in trade or business within the
Philippines.”
Commonwealth Act No. 466, known as the National
Internal Revenue Code and approved on June 15, 1939,
defined “resident foreign corporation” as applying to “a
foreign corporation engaged in trade or business within the
Philippines or having an office or place of business
therein.”55
 
Section 24(b)(2) of the National Internal Revenue Code,
as amended by Republic Act No. 6110, approved on August
4, 1969, reads:
Sec. 24. Rates of tax on corporations.—. . .
(b) Tax on foreign corporations.—. . .
(2) Resident corporations.—A corporation
organized, authorized, or existing under the laws of
any foreign country, except a foreign life insurance
company, engaged in trade or business within the
Philippines, shall be taxable as provided in subsection
(a) of this section upon the total net income received
in the preceding taxable year

_______________

54  Id.
55  Com. Act No. 466 (1939), Sec. 84(g).

 
 
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Air Canada vs. Commissioner of Internal Revenue

from all sources within the Philippines.56

(Emphasis supplied)
 
Presidential Decree No. 1158-A took effect on June 3,
1977 amending certain sections of the 1939 National
Internal Revenue Code. Section 24(b)(2) on foreign resident
corporations was amended, but it still provides that “[a]
corporation organized, authorized, or existing under the
laws of any foreign country, engaged in trade or business
within the Philippines, shall be taxable as provided in
subsection (a) of this section upon the total net income
received in the preceding taxable year from all sources
within the Philippines[.]”57
As early as 1987, this court in Commissioner of Internal
Revenue v. British Overseas Airways Corporation58 declared
British Overseas Airways Corporation, an international air
carrier with no landing rights in the Philippines, as a
resident foreign corporation engaged in business in the
Philippines through its local sales agent that sold and
issued tickets for the airline company.59 This court
discussed that:

There is no specific criterion as to what constitutes

“doing” or “engaging in” or “transacting” business.
Each case must be judged in the light of its peculiar
environmental circumstances. The term implies a
continuity of commercial dealings and
arrangements, and contemplates, to that extent, the
performance of acts or works or the exercise of
some of the functions nor-
 

_______________

56   Commissioner of Internal Revenue v. British Overseas Airways

Corporation, 233 Phil. 406, 421; 149 SCRA 395, 406 (1987) [Per J.
Melencio-Herrera, En Banc], citing Tax Code, Sec. 24(b)(2), as amended by
Rep. Act No. 6110 (1969).
57  Pres. Decree No. 1158-A (1977), Sec. 1.
58   Commissioner of Internal Revenue v. British Overseas Airways
Corporation, supra, cited in Commissioner of Internal Revenue v. Air
India, 241 Phil. 689, 694-696; 157 SCRA 648, 652 (1988) [Per J. Gancayco,
First Division].
59  Id., at pp. 420-421; p. 404.
  
 
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152 SUPREME COURT REPORTS ANNOTATED

Air Canada vs. Commissioner of Internal Revenue

mally incident to, and in progressive

prosecution of commercial gain or for the
purpose and object of the business organization.
“In order that a foreign corporation may be regarded
as doing business within a State, there must be
continuity of conduct and intention to establish a
continuous business, such as the appointment of a
local agent, and not one of a temporary character.[”]
BOAC, during the periods covered by the subject-
assessments, maintained a general sales agent in the
Philippines. That general sales agent, from 1959 to
1971, “was engaged in (1) selling and issuing tickets;
(2) breaking down the whole trip into series of trips —
each trip in the series corresponding to a different
airline company; (3) receiving the fare from the whole
trip; and (4) consequently allocating to the various
airline companies on the basis of their participation in
the services rendered through the mode of interline
settlement as prescribed by Article VI of the
Resolution No. 850 of the IATA Agreement.” Those
activities were in exercise of the functions which are
normally incident to, and are in progressive pursuit
of, the purpose and object of its organization as an
international air carrier. In fact, the regular sale of
tickets, its main activity, is the very lifeblood of the
airline business, the generation of sales being the
paramount objective. There should be no doubt then
that BOAC was “engaged in” business in the
Philippines through a local agent during the period
covered by the assessments. Accordingly, it is a
resident foreign corporation subject to tax upon its
total net income received in the preceding taxable
year from all sources within the Philippines.60
(Emphasis supplied, citations omitted)
 
Republic Act No. 7042 or the Foreign Investments Act of
1991 also provides guidance with its definition of “doing
business” with regard to foreign corporations. Section 3(d)
of the law enumerates the activities that constitute doing
business:
_______________

60  Id.

 
 
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Air Canada vs. Commissioner of Internal Revenue

d. the phrase “doing business” shall include

soliciting orders, service contracts, opening offices,
whether called “liaison” offices or branches;
appointing representatives or distributors domiciled
in the Philippines or who in any calendar year stay in
the country for a period or periods totalling one
hundred eighty (180) days or more; participating in
the management, supervision or control of any
domestic business, firm, entity or corporation in the
Philippines; and any other act or acts that imply a
continuity of commercial dealings or
arrangements, and contemplate to that extent
the performance of acts or works, or the exercise
of some of the functions normally incident to,
and in progressive prosecution of, commercial
gain or of the purpose and object of the business
organization: Provided, however, That the phrase
“doing business” shall not be deemed to include mere
investment as a shareholder by a foreign entity in
domestic corporations duly registered to do business,
and/or the exercise of rights as such investor; nor
having a nominee director or officer to represent its
interests in such corporation; nor appointing a
representative or distributor domiciled in the
Philippines which transacts business in its own name
and for its own account[.]61 (Emphasis supplied)
 
While Section 3(d) above states that “appointing a
representative or distributor domiciled in the Philippines
which transacts business in its own name and for its own
account” is not considered as “doing business,” the
Implementing Rules and Regulations of Republic Act No.
7042 clarifies that “doing business” includes “