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Friday, June 16, 2017

AGAINST REPEAL OF COOPERATIVE TAX PRIVILEGE

Taxation is an inherent power of the state not only for purposes of raising revenues but also to distribute equally the wealth of the nation and protect certain industries by granting exemptions. This is so because it is the primordial duty of the State to alleviate the lives of the people from poverty. The 1987 Constitution itself provides that the goals of the national economy are a more equitable distribution of opportunities, income, and wealth to raise the quality of life for all, especially the underprivileged. Accordingly, the Constitution further requires the promotion of the viability and growth of cooperatives as instruments for social justice and economic development.

Pursuant to the Constitutional mandate, the Philippine Cooperative Code was created and declared the policy of the State to foster the creation and growth of cooperatives as a practical vehicle for promoting self-reliance and harnessing people power towards the attainment of economic development and social justice. One of the ways to attain such policy is to grant cooperatives the privilege to be exempted from tax. And this has been proven to be the most effective way.

The grant of this privilege to cooperatives may not literally help the government raise revenue, but it fulfills the mandate of alleviating the lives of the people form poverty, which is the ultimate goal of raising revenue. The Code requires the cooperatives to set aside thirty percent (30%) of their profit to be reserved for specific purposes. They cannot spend anything from their money until and unless the requirement on statutory reserves is complied with. These reserves will redound back to the members themselves and the community as a whole, through certain projects specifically required by law. Only the excess of which may be returned back to the members or finance the operations of the coop.

The primary purpose of cooperatives is to provide service to their members. The purpose of gaining profit is only a consequence thereto in order to meet the need to serve the members. Being community based, the services that their members expect from the government are given directly to them by their cooperative through easiest, fastest and most accessible way. Hence, cooperatives are but partner-instruments of the State in promoting equity, social justice and economic development.

Again, cooperatives are created by mostly poor individuals who contributed small amount to the organization on one collective purpose which is to alleviate them from poverty, with less financial support from the Government but the tax exemption. This tax exemption is a social justice measure and can never be considered as fiscal incentive to business. It is clearly provided under the Cooperative Code which is a legislative measure.

Although the general rule is that tax exemptions are not favored and are construed strictissimi juris against the taxpayer, this, however, does not apply when the exemption is in favor of cooperatives. The general when dealing with cooperatives is that they are exempted from tax. In a case it decided, the Supreme Court opined that “if there is an express mention or if the taxpayer falls within the purview of the exemption by clear legislative intent, the rule on strict construction does not apply (Comm. Vs. Arnoldus Carpentry Shop, Inc., 159 SCRA 19)”. The tax exemption privilege under the Code was made to enable the cooperatives develop into viable and responsive economic enterprises and thereby fulfill its purpose of serving the need of the members.

Cooperatives conduct their business activities not for profit but for the sustenance of its members. The sound construction of the principles outlined in the Code must be that the powers the law confers are to be carried into execution which will enable the cooperative to perform the high duties assigned to them in the manner most beneficial to their members and to the community as a whole.

Wherefore, removing tax exemptions of cooperatives will deprive poor people the only organization that knows their conditions and which provides them what they need; hence it is heretofore strongly and unyieldingly opposed.


(Sgd) USEC. ORLANDO R. RAVANERA
Chairman. CDA


CDA POSITION PAPER ON UPHOLDING  THE TAX   EXEMPTION OF COOPERATIVES

Good afternoon to the Honorable Chairman, my highest respect to the deputy speaker, Hon. Gloria Macapagal-Arroyo who had visited us in Mindanao when her Excellency was President to advance Peace in Mindanao through Cooperativism in 2009. Esteemed members of Congress, my colleagues in government, my countrymen who like me believe that the Philippines is the bastion of freedom, where justice roll on like a river, and righteousness like a never-failing stream, I have never been as fired up as today as I stand firm on Upholding the Tax Exemption of Cooperatives, a position and conviction shared by more than 14 million cooperative members from all walks of life.


PREFATORY

Salus Populi Est Suprema Lex. The welfare of the people is the supreme law. Nothing can best express the primacy and importance of the welfare of the people and the government’s existence is best justified in the exercise of its police power. On the other hand, the power to tax is an incident of sovereignty, its use emanates from necessity because without taxes, the government cannot carry out its mandate of promoting the welfare of the people. Two inherent powers of the state that rationalize the government’s relevance, but somehow need to be balanced as one may result in abuse and oppression of a segment of society whose welfare it is tasked to protect and promote.

House Bill 4774, also known as the Tax Reform for Acceleration and Inclusion (TRAIN) Bill seeks to reduce poverty from 21.6% to 14%, which means some 6 million Filipinos will no longer wallow in poverty by 2022 and that by 2040, extreme poverty is eradicated and high income status is achieved, attaining a per capita GNI increase of US$12,000 in today’s money. It envisions the presence of inclusive economic and political institutions where everyone has equal opportunities. Redesigning the country’s tax system, making it simpler, fairer and more efficient for all is a welcome change. The cooperative movement fully supports this laudable targets as they are aligned with the Ten Point Socio-Economic Agenda of the Duterte Administration.

The proposed bill determines the financial implications of the foregoing targets in the amount of P366-B per year between 2016-2022 to fund programs in infrastructure, education and training, health and social protection programs. Towards this end, HB 4774 seeks to lift the tax exemption of cooperatives to raise the amount.


COOPERATIVES ARE VEHICLES OF SOCIAL JUSTICE 

The world has acknowledged the role of cooperatives. Their gargantuan task consists of improving the lives of marginalized members of society, their uniqueness and distinctiveness seen in their very mandate of achieving the economic, social and cultural needs and aspirations of their members. Cooperatives are special aggrupations of people because they are saddled with a social task and a calling to unite people, harness their productive capacity, and let them rise past poverty level. With the formation of the Rochdale Cooperative founded in England in 1844 by 28 textile weavers who operated a retail store to protect themselves from capitalists who were out to squeeze them dry, the adoption of the cooperative form of organization by countries including the United States, has resulted in significant economic gains and social development. Countries in Asia such as South Korea, Singapore, Indonesia, Nepal, Thailand, Hongkong, Taiwan, Bangladesh, and Mongolia, among others, have reaped the benefits of the collective economic and social gains that cooperatives provide.

The Philippines on its own can boast that the cooperatives do have an impact on the lives of millions, who normally would not be able to have access to opportunities that would take them out of the quagmire of poverty. They operate in an environment conscious that they, together with other sectors in the economy, are responsible in bringing about an equitably progressive future for Filipinos. To date, there are more than 14 million individuals who are members of 26,600 cooperatives, spread all over Luzon, Visayas and Mindanao. Of this number, 82.5% or 21,945 are micro cooperatives or those whose capitalization is below P3 million; 10.2% or 2,713 are small with a capital base of P3 million to P15 million; and only 7.3% are medium and large coops with capitalization of P15 million to P100 million for medium, and above P100 million for large.

In addition, these 26,600 cooperatives have directly employed some 530,000 individuals contributing a total amount of about P6.4 Billion in withholding taxes. Correspondingly, the cooperatives have generated indirect employment at the tune of 1,950,000.

Cooperatives continue to reach more people, particularly those in the vulnerable sectors to help them in the attainment of their economic and social goals.

Currently, there are 25 types of cooperatives including the reformed combatants, persons with disability and most recently, the drug victims. Giving them another chance in life through cooperativism has become a priority and taxing these cooperatives may not be in order.

LEGAL BASIS FOR EXEMPTING COOPERATIVES

Section 15, Article XII of the 1987 Constitution, on National Economy and Patrimony mandates Congress to create “an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development”. Thus, the Cooperative Development Authority (CDA) was created in 1990 by virtue of Republic Act No. 6939. There can be no other explanation of this explicit provision of the fundamental law of the land than to recognize the need to ensure the sustainability and development of cooperatives so they can be true to, and meet their reason for existence – to serve as tools for allowing everyone access to opportunities in order to live a decent life. Quite a tall order for cooperatives, but one need only to appreciate the over 14 million Filipinos whose membership in cooperatives speak for their belief that social justice is after all, attainable. And this is possible when they become members of cooperatives.

Republic Act No. 9520 otherwise known as the Philippine Cooperative Code of 2008 was enacted in pursuance of the constitutional mandate, explicitly declaring that it is the policy of the State to foster the creation and growth of cooperatives as practical vehicles for promoting selfreliance and harnessing people power towards the attainment of economic development and social justice” and that Government “shall create an atmosphere that is conducive to the growth and development of cooperatives”. Articles 60 and 61 of the Philippine Cooperative Code of 2008 provide tax exemptions of cooperatives in all its transactions with members, as a recognition that cooperatives are partners of the Government in community-building, and consequently, in nation-building.

Moreover, Article 86 mandates all cooperatives to allot 10% of their Net Surplus to the Reserve Fund, not more than 10% for Education & Training Fund, and 3% for Community Development Fund, to improve their lives and build better communities. From this provision, it is evident that the mechanism has been put in place to make sure that cooperatives can function according to its constitutional and legal mandate, to be instruments of economic development and social justice. Their existence is not premised or centered on profit-making activities, because they are mandated to develop human resources through education and training, make good their commitment to be the government’s partners in building resilient communities and a better Philippines.

Article 86 further provides that the Remaining Net Surplus shall be made available to the members in the form of interest on share capital and patronage refunds, not as realized income but rather as savings obtained by members in availing of services from their respective cooperatives. What is therefore clear is the fact that for putting their hardearned money, patronizing the products and services and taking the risks, cooperative members receive a portion of what they paid. Thus, the patronage refund is a refund that is based on use, and not a dividend because the latter is a return based on investment.

Ensuring that cooperatives stay viable and their growth promoted require no less than the support of the government, which begins with the correct appreciation of their existence. To reiterate, they are not organized for profit. Rather, they are established by people to provide them with products and services, or produce and dispose the fruits of their labor. They own the means of production and the distribution facilities in common. Their existence is one of service to their members. Whatever is earned, the same revert to the members.

As defined, a cooperative is an autonomous and duly registered association of persons, with a common bond of interest, who have voluntarily joined together to achieve their social economic and cultural needs and aspirations by making equitable contributions to the capital required, patronizing their products and services and accepting a fair share of the risks and benefits of the undertaking in accordance with universally accepted cooperative principles. That common bond of interest is the very impetus for people to find a rallying point, a motivation to take the risk because of the belief that cooperatives provide the answer to their quest for a better life. The law puts social responsibility as a must on cooperatives, the very heart of their existence. Businesses and other commercial organizations are not given such express mandate. It is because their existence is deeply rooted in amassing wealth for the suppliers of capital, such that profit becomes their overarching goal.

COOPERATIVES ARE NOT-PROFIT MAKING ENTITIES

All told, cooperatives are different from businesses and other organizations that are profit-seeking. Removing the tax exemption as clearly enshrined in the law that gives life to the cooperatives is tantamount to treating them just like business entities that exist primarily for profit and to make a few and the select, rich. Lifting the tax exemption of cooperatives runs counter to the thrust of the Duterte Administration which is to invest heavily on people. The cooperatives have been instrumental in developing the human resources of this country. The required Cooperative Education and Training Fund (CETF) which is 10% of the Net Surplus, not to mention the Community Development Fund of up to a maximum of 3%, are indicative of the importance that cooperatives put in the enhancement of people’s skills and abilities. In short, the mechanism to address human development concerns is already part of the cooperative structure.

Cooperatives are engines of economic growth. They have created products and services that have produced benefits to millions of Filipinos, employing 462,364 to date, thus helping address the unemployment problem of the country, engaged in community projects, allocating P432,930,570.46 for this purpose. These projects range from health to education, even infrastructure, as cooperatives help build farm-to-market roads, repaired school buildings, and made available storage facilities for private-for-profit entities.

The activities that cooperatives undertake result in gainful employment to many, allowed members to take part in, or commence productive activities, and enhance their purchasing power. All of these redound to increase in tax revenues. At the end of 2016, total taxes withheld and which became part of total tax revenues remitted to the national government reached the P6,339,005,746. This amount is expected to grow as cooperatives expand under the present legal and political framework, offering more products and services to their members, thereby enhancing the productive capacity and capital formation of society. There is therefore truth to the statement that the exemption of cooperatives from paying taxes has resulted in the creation of more tax payers as more value added activities are undertaken in their respective community.

Treating cooperatives as profit-oriented enterprises and imposing taxes on them, is not only unconstitutional, it is also anti-people as it is counter-productive in the long-run. The viability and sustainability of cooperatives that have long been serving millions of members are now put in a serious bind. The social and economic benefits provided by cooperatives have far reaching impact, and they need support from the government to reach their potential as a dynamic people centered enterprise committed to total human development. They make major contributions to the sustainable development goals. While it is true that they do could not eradicate poverty and economic injustice on their own, they are certainly a part of the solution.

I therefore appeal to the distinguished gentlemen and ladies of this august house, to respect and honor the tax exemption of cooperatives laid down in the Constitution and its enabling law, Republic Act 9520.

(Sgd) USEC. ORLANDO R. RAVANERA
Chairman. CDA



WAYS AND MEANS
COMMENT

“We have chosen the cooperative approach that begins and ends with us, the people. One where we are both the owners and customers of development. One that derives its strength from the pooling of our human and financial resources to solve our problems. One that enables people to work with people as the price for the space we occupy in this world.” --GUILLERMO P. CUA MASS-SPECC Cagayan De Oro

It has always been and will continue to be the mandate of the Cooperative Development Authority to adhere to the declared policy of the State to foster the creation and growth of the cooperatives as a practical vehicle for promoting self-reliance and harnessing people power towards the attainment of economic development and social justice. As of December 2016 data of the Authority, there are already 25,997 cooperatives registered with the different CDA Extension Offices all over the country.
The Cooperative Development Authority (CDA) wishes to express its gratitude for allowing us to COMMENT to the House Bill 4774 on the  Proposed Measure on Lowering the Personal Income Tax and Consumption Tax with Offsetting Measures.

As a backgrounder, the 1987 Philippine Constitution recognizes the important role of cooperatives in the development of the nation.  The significant provisions are to wit:
Sec. 1,   par. 3, 2nd sentence of Article XII which provides:

“Private enterprises including corporation, cooperatives and similar collective organizations shall be encouraged to broaden their base of membership.” (Underscoring supplied)

Sec. 6, 2nd sentence of the same article which further states that:

 “ Individuals and private groups including corporations, cooperatives and similar collective organizations shall have the right to own establish, and operate economic enterprises subject to the duty of the state to promote distributive justice and to intervene when the common good so demands.”

Sec. 15 of the same article which states that:

“The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development.

While Section 5 of Article XIII which holds that:

“ The state shall recognize the right of farmers, farm workers, and land owners, as well as cooperatives, and other independent farmer’s organization to participate in the planning, organization and management of the program, and shall provide support to agriculture through appropriate technology and research, and adequate financial, production, marketing and other support services.”

Pursuant to these Constitutional mandate, Republic Act No. 6938 otherwise known as the “Cooperative Code of the Philippines” was enacted and approved on  March 10, 1990 and was further amended by RA 9520, otherwise known as the  “Philippine Code of 2008 on  February 17, 2009.

To implement the provisions of the Code and to see to it that the cooperatives be properly organized and managed by the members and assisted by the government, the  COOPERATIVE DEVELOPMENT AUTHORITY was likewise created and approved on the same day under Republic Act No. 6939. The agency as the lead government agency on cooperative is charged to promote the viability and growth of cooperatives as instruments of equity, social justice and economic development, defining its powers, functions and responsibilities, rationalizing government policies and agencies with cooperative functions, supporting cooperative development, transferring the registration and regulations functions of existing government agencies on cooperatives as such and consolidating the same with the agency, appropriating funds therefore and for other purposes.

Cooperative is a  self-help organization . Through which, the people are doing what the Government shall be doing for them. This is the reason why Tax exemptions are granted to cooperatives. 

In determining if a cooperative is exempted or not, the following provisions of RA No. 9520 or Philippine Cooperative Code of 2008 shall be controlling:

 “ART.61. Tax and Other Exemptions. Cooperatives transacting business with both members and nonmembers shall not be subjected to tax on their transactions with members. In relation to this, the transactions of members with the cooperative shall not be subject to any taxes and fees, including not limited to final taxes on members’ deposits and documentary tax. Notwithstanding the provisions of any law or regulation to the contrary, such cooperatives dealing with nonmembers shall enjoy the following tax exemptions:

"(1) Cooperatives with accumulated reserves and undivided net savings of not more than Ten million pesos (P10,000,000.00) shall be exempt from all national, city, provincial, municipal or barangay taxes of whatever name and nature. Such cooperatives shall be exempt from customs duties, advance sales or compensating taxes on their importation of machineries, equipment and spare parts used by them and which are not available locally a certified by the department of trade and industry (DTI). All tax free importations shall not be sold nor the beneficial ownership thereof be transferred to any person until after five (5) years, otherwise, the cooperative and the transferee or assignee shall be solidarily liable to pay twice the amount of the imposed tax and / or duties.

"(2) Cooperatives with accumulated reserves and undivided net savings of more than Ten million pesos (P10,000,000.00) shall pay the following taxes at the full rate:
"xx.

"(b) Value-Added Tax On transactions with non-members: Provided, however, That cooperatives duly registered with the Authority; are exempt from the payment of value-added tax; subject to Sec. 109, sub-sections L, M and N of Republic Act No. 9337, the National Internal Revenue Code, as amended: Provided, That the exempt transaction under Sec. 109 (L) shall include sales made by cooperatives duly registered with the Authority organized and operated by its member to undertake the production and processing of raw materials or of goods produced by its members into finished or process products for sale by the cooperative to its members and non-members: Provided, further, That any processed product or its derivative arising from the raw materials produced by its members, sold in then name and for the account of the cooperative: Provided , finally, That at least twenty-five per centum (25%) of the net income of the cooperatives is returned to the members in the form of interest and/or patronage refunds.(Emphasis Supplied); xxx.”

Cooperatives duly registered with the Authority is exempt from VAT on the following transactions with members and non-members irrespective whether the cooperative’s accumulated reserves and undivided net savings exceeds 10 million pesos (P10,000,000.00), to wit:
  1. Sales by agricultural cooperatives duly registered with the Cooperative Development Authority to their members as well as sale of their produce, whether in its original state or processed form, to non-members; their importation of direct farm inputs, machineries and equipment, including spare parts thereof, to be used directly and exclusively in the production and/or processing of their produce;
  2. Gross receipts from lending activities by credit or multi-purpose cooperatives duly registered with the Cooperative Development Authority;
  3. Sales by non-agricultural, non- electric and non-credit cooperatives duly registered with the Cooperative Development Authority: Provided, That the share capital contribution of each member does not exceed Fifteen thousand pesos (P15,000) and regardless of the aggregate capital and net surplus ratably distributed among the members;
The accumulated reserves and undivided net surplus can be found in the Statement of Operation.

The law says: “Cooperatives with accumulated reserves and undivided net savings of not more than Ten million pesos (P10,000,000.00) shall be exemptxxx.”The basis then of the P10,000,000.00 threshold is the accumulated reserves and undivided net savings. The tax base for all cooperatives liable to income tax shall be the net surplus arising from the business transactions with non-members after deducting the amounts for the statutory reserve funds as provided for in the Cooperative Code and other laws.[1]

Clearly, for taxation purposes or for the tax exemption to apply, distinction is to be made as with whom the cooperative transacts business whether member or non-member. RA 9520, Article 61 on Tax and other exemptions is explicit on the enjoyment of tax exemptions for cooperatives dealing with non-members when such cooperative is with accumulated reserves and undivided net savings of not more than 10 million pesos (P10,000,000.00) .

In actuality, the intention is not to free cooperatives forever from paying their just share of taxes due the government. However, to totally abdicate this not so absolute tax exemption of cooperatives, will defeat the very intent of no less than the 1987 Philippine Constitution. Cooperatives should be treated as a distinct enterprise. The basic reason is that cooperatives are voluntary organizations of people who want to improve their economic lives by their own initiatives and using their own resources. Cooperatives are considered, among other things, as instruments of equity, social justice and economic development.[2] They are associations organized for the economic and social betterment of their members, operating business enterprises based on mutual aid, and founded upon internationally accepted principles and practices. Cooperatives are tools of empowerment of the people, specially when both the social and economic ends are achieved. [3]

The argument that exempting Cooperatives from VAT because cooperatives will be selling their goods with  higher prices to recover the Input Tax that they paid when they bought their supplies from a VAT-registered entity is not correct . There would be no effect for whatever are the benefits of the cooperative, it must be divided among the members who are also the buyers themselves in accordance to their patronage.

While there is no direct payment of taxes, in actuality, cooperatives contribute to the very essence of taxation as the lifeblood of the nation. RA 9520 in the distribution of net surplus mandates that an amount for the community development fund, which shall not be less than 3% of the net surplus. The community development fund shall be used for projects or activities that will benefit the community where the cooperatives operates. This has the effect of giving back to the community whatever privileges are granted to a cooperative, one of which is its exemption from tax. Community development involves increasing the number or quality of jobs so that individual and aggregate income expands, with this, cooperatives have the potential to foster economic growth. 

The cooperative’s privilege or tax exemption is a social justice measure. As a social justice measure, it is meant, to borrow the words of Justice Laurel, “for the equalization of social and economic forces.”

We invoke jurisprudence in Dumaguete Cathedral Credit Cooperative vs. Commissioner, Bureau of Internal Revenue that:

“In closing, cooperatives, including their members, deserve a preferential tax treatment because of the vital role they play in the attainment of economic development and social justice. Thus, although taxes are the lifeblood of the government, the States power to tax must give way to foster the creation and growth of cooperatives. To borrow the words of Justice Isagani A. Cruz. The power of taxation, while indispensable, is not absolute and may be subordinated to the demands of social justice.”

No less than our Constitution guarantees the protection of cooperatives. Section 15, Article XII of the Constitution considers cooperatives as instruments for social justice and economic development. At the same time, Section 10 of Article II of the Constitution declares that it is a policy of the State to promote social justice in all phases of national development.

In relation thereto, Section 2 of Article XIII of the Constitution states that the promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.[4]

Policy makers should inreasingly be interested in alternative form of business that will both be responsive to community needs and economic growth. The cooperative form of business is the obvious choice.

We hope that in the drafting of  the proposed legislation , the  foregoing premises be taken into consideration.

[1] Section 8, b.2.1.1,DOF Joint Rules and Regulations Implementing Articles 60, 61 and 144 of RA No. 9520 in Relation to RA No. 8424 or the National Internal Revenue Code, as Amended.
[2] CDA Charter
[3] Aqulino Q. Pimentel, Jr., and Mordino R. Cua
[4] DUMAGUETE CATHEDRAL CREDIT COOPERATIVE [DCCCO], vs. vs.
COMMISSIONER OF INTERNAL REVENUE, G.R. No. 182722


(Sgd) USEC. ORLANDO R. RAVANERA
Chairman. CDA

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