Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-24248 July 31, 1974
ANTONIO TUASON, JR., petitioner,
vs.
JOSE B. LINGAD, as Commissioner of Internal Revenue, respondent.
Araneta, Mendoza & Papa for petitioner.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Felicisimo R. Rosete and
Special Attorney Antonio H. Garces for respondent.
CASTRO, J.:p
In this petition for review of the decision of the Court of Tax Appeals in CTA Case 1398, the petitioner Antonio Tuason, Jr. (hereinafter
referred to as the petitioner) assails the Tax Court's conclusion that the gains he realized from the sale of residential lots (inherited from his
mother) were ordinary gains and not gains from the sale of capital assets under section 34(1) of the National Internal Revenue Code.
The essential facts are not in dispute.
In 1948 the petitioner inherited from his mother several tracts of land, among which were two
contiguous parcels situated on Pureza and Sta. Mesa streets in Manila, with an area of 318 and
67,684 square meters, respectively.
When the petitioner's mother was yet alive she had these two parcels subdivided into twenty-nine
lots. Twenty-eight were allocated to their then occupants who had lease contracts with the
petitioner's predecessor at various times from 1900 to 1903, which contracts expired on December
31, 1953. The 29th lot (hereinafter referred to as Lot 29), with an area of 48,000 square meters,
more or less, was not leased to any person. It needed filling because of its very low elevation, and
was planted to kangkong and other crops.
After the petitioner took possession of the mentioned parcels in 1950, he instructed his attorney-in-
fact, J. Antonio Araneta, to sell them.
There was no difficulty encountered in selling the 28 small lots as their respective occupants bought
them on a 10-year installment basis. Lot 29 could not however be sold immediately due to its low
elevation.
Sometime in 1952 the petitioner's attorney-in-fact had Lot 29 filled, then subdivided into small lots
and paved with macadam roads. The small lots were then sold over the years on a uniform 10-year
annual amortization basis. J. Antonio Araneta, the petitioner's attorney-in-fact, did not employ any
broker nor did he put up advertisements in the matter of the sale thereof.
In 1953 and 1954 the petitioner reported his income from the sale of the small lots (P102,050.79 and
P103,468.56, respectively) as long-term capital gains. On May 17, 1957 the Collector of Internal
Revenue upheld the petitioner's treatment of his gains from the said sale of small lots, against a
contrary ruling of a revenue examiner.
In his 1957 tax return the petitioner as before treated his income from the sale of the small lots
(P119,072.18) as capital gains and included only ½ thereof as taxable income. In this return, the
petitioner deducted the real estate dealer's tax he paid for 1957. It was explained, however, that the
payment of the dealer's tax was on account of rentals received from the mentioned 28 lots and other
properties of the petitioner. On the basis of the 1957 opinion of the Collector of Internal Revenue, the
revenue examiner approved the petitioner's treatment of his income from the sale of the lots in
question. In a memorandum dated July 16, 1962 to the Commissioner of Internal Revenue, the chief
of the BIR Assessment Department advanced the same opinion, which was concurred in by the
Commissioner of Internal Revenue.
On January 9, 1963, however, the Commissioner reversed himself and considered the petitioner's
profits from the sales of the mentioned lots as ordinary gains. On January 28, 1963 the petitioner
received a letter from the Bureau of Internal Revenue advising him to pay deficiency income tax for
1957, as follows:
Net income per orig. investigation ............... P211,095.36
Add:
56% of realized profit on sale
of lots which was deducted in the
income tax return and allowed in
the original report of examination ................. 59,539.09 Net income per final investigation .................
P270,824.70
Less: Personal exemption ..................................... 1,800.00
Amount subject to tax ................................. P269,024.70 Tax due thereon ..........................................
P98,551.00
Less: Amount already assessed .................... 72,199.00 Balance ......... P26,352.00
Add:
½% monthly interest from
6-20-59 to 6-29-62 .................................... 4,742.36
TOTAL AMOUNT DUE AND
COLLECTIBLE ......................................... P31,095.36
The petitioner's motion for reconsideration of the foregoing deficiency assessment was denied, and
so he went up to the Court of Tax Appeals, which however rejected his posture in a decision dated
January 16, 1965, and ordered him, in addition, to pay a 5% Surcharge and 1% monthly interest
"pursuant to Sec. 51(e) of the Revenue Code."
Hence, the present petition.
The petitioner assails the correctness of the opinion below that as he was engaged in the business
of leasing the lots he inherited from his mother as well other real properties, his subsequent sales of
the mentioned lots cannot be recognized as sales of capital assets but of "real property used in trade
or business of the taxpayer." The petitioner argues that (1) he is not the one who leased the lots in
question; (2) the lots were residential, not commercial lots; and (3) the leases on the 28 small lots
were to last until 1953, before which date he was powerless to eject the lessees therefrom.
The basic issue thus raised is whether the properties in question which the petitioner had inherited
and subsequently sold in small lots to other persons should be regarded as capital assets.
1. The National Internal Revenue Code (C.A. 466, as amended) defines the term "capital assets" as
follows:
(1) Capital assets. — The term "capital assets" means property held by the taxpayer
(whether or not connected with his trade or business), but does not include stock in
trade of the taxpayer or other property of a kind which would properly be included in
the inventory of the taxpayer if on hand at the close of the taxable year, or property
held by the taxpayer primarily for sale to customers in the ordinary course of his
trade or business, or property, used in the trade or business, of a character which is
subject to the allowance for depreciation provided in subsection (f) of section thirty;
or real property used in the trade or business of the taxpayer.
As thus defined by law, the term "capital assets" includes all the properties of a taxpayer whether or
not connected with his trade or business, except: (1) stock in trade or other property included in the
taxpayer's inventory; (2) property primarily for sale to customers in the ordinary course of his trade or
business; (3) property used in the trade or business of the taxpayer and subject to depreciation
allowance; and (4) real property used in trade or business.1 If the taxpayer sells or exchanges any of
the properties above-enumerated, any gain or loss relative thereto is an ordinary gain or an ordinary
loss; the gain or loss from the sale or exchange of all other properties of the taxpayer is a capital
gain or a capital loss.2
Under section 34(b) (2) of the Tax Code, if a gain is realized by a taxpayer (other than a corporation)
from the sale or exchange of capital assets held for more than twelve months, only 50% of the net
capital gain shall be taken into account in computing the net income.
The Tax Code's provision on so-called long-term capital gains constitutes a statute of partial
exemption. In view of the familiar and settled rule that tax exemptions are construed in strictissimi
juris against the taxpayer and liberally in favor of the taxing authority,3 the field of application of the
term it "capital assets" is necessarily narrow, while its exclusions must be interpreted
broadly.4 Consequently, it is the taxpayer's burden to bring himself clearly and squarely within the
terms of a tax-exempting statutory provision, otherwise, all fair doubts will be resolved against
him.5 It bears emphasis nonetheless that in the determination of whether a piece of property is a
capital asset or an ordinary asset, a careful examination and weighing of all circumstances revealed
in each case must be made.6
In the case at bar, after a thoroughgoing study of all the circumstances relevant to the resolution of
the issue raised, this Court is of the view, and so holds, that the petitioner's thesis is bereft of merit.
When the petitioner obtained by inheritance the parcels in question, transferred to him was not
merely the duty to respect the terms of any contract thereon, but as well the correlative right to
receive and enjoy the fruits of the business and property which the decedent had established and
maintained.7 Moreover, the record discloses that the petitioner owned other real properties which he
was putting out for rent, from which he periodically derived a substantial income, and for which he
had to pay the real estate dealer's tax (which he used to deduct from his gross income).8 In fact, as
far back as 1957 the petitioner was receiving rental payments from the mentioned 28 small lots,
even if the leases executed by his deceased mother thereon expired in 1953. Under the
circumstances, the petitioner's sales of the several lots forming part of his rental business cannot be
characterized as other than sales of non-capital assets.
The sales concluded on installment basis of the subdivided lots comprising Lot 29 do not deserve a
different characterization for tax purposes. The following circumstances in combination show
unequivocally that the petitioner was, at the time material to this case, engaged in the real estate
business: (1) the parcels of land involved have in totality a substantially large area, nearly seven (7)
hectares, big enough to be transformed into a subdivision, and in the case at bar, the said properties
are located in the heart of Metropolitan Manila; (2) they were subdivided into small lots and then sold
on installment basis (this manner of selling residential lots is one of the basic earmarks of a real
estate business); (3) comparatively valuable improvements were introduced in the subdivided lots for
the unmistakable purpose of not simply liquidating the estate but of making the lots more saleable to
the general public; (4) the employment of J. Antonio Araneta, the petitioner's attorney-in-fact, for the
purpose of developing, managing, administering and selling the lots in question indicates the
existence of owner-realty broker relationship; (5) the sales were made with frequency and continuity,
and from these the petitioner consequently received substantial income periodically; (6) the annual
sales volume of the petitioner from the said lots was considerable, e.g., P102,050.79 in 1953;
P103,468.56 in 1954; and P119,072.18 in 1957; and (7) the petitioner, by his own tax returns, was
not a person who can be indubitably adjudged as a stranger to the real estate business. Under the
circumstances, this Court finds no error in the holding below that the income of the petitioner from
the sales of the lots in question should be considered as ordinary income.
2. This Court notes, however, that in ordering the petitioner to pay the deficiency income tax, the Tax
Court also required him to pay a 5% surcharge plus 1% monthly interest. In our opinion this
additional requirement should be eliminated because the petitioner relied in good faith upon opinions
rendered by no less than the highest officials of the Bureau of Internal Revenue, including the
Commissioner himself. The following ruling in Connell Bros. Co. (Phil.) vs. Collector of Internal
Revenue9 applies with reason to the case at bar:
We do not think Section 183(a) of the National Internal Revenue Code is applicable.
The same imposes the penalty of 25% when the percentage tax is not paid on time,
and contemplates a case where the liability for the tax is undisputed or indisputable.
In the present case the taxes were paid, the delay being with reference to the
deficiency, owing to a controversy as to the proper interpretation if Circulars Nos. 431
and 440 of the office of respondent-appellee. The controversy was generated in good
faith, since that office itself appears to have formerly taken the view that the inclusion
of the words "tax included" on invoices issued by the taxpayer was sufficient
compliance with the requirements of said circulars. 10
ACCORDINGLY, the judgment of the Court of Tax Appeals is affirmed, except the portion thereof
that imposes 5% surcharge and 1% monthly interest, which is hereby set aside. No costs.
Makalintal, C.J., Makasiar, Esguerra and Muñoz Palma, JJ., concur.
Teehankee, J., took no part.
Footnotes
1 Jose P. Alejandro, Law on Taxation. (2nd edition), p. 228.
2 Ibid.
3 Esso Standard Eastern, Inc. vs. Acting Commissioner of Customs, 18 SCRA 488;
Philippine Acetylene Co., Inc. vs. Commissioner of Internal Revenue, 20 SCRA
1056; Philippine Guaranty Co., Inc. vs. Commissioner of Internal Revenue, 15 SCRA
1 citing La Carlota Sugar Central vs. Jimenez, L-12436, May 31, 1961. See also
Cooley on Taxation, 4th edition, Vol. 2, pp. 1403-1404.
4 See Corn Products Refining Co. vs. Commissioner, 350 U.S. 46, 100 L. Ed. 29, 76
S. Ct. 20.
5 See Sloane vs. Commissioner; 188 F (2d) 254 (CA-6, 1951).
6 See Klarkowski, TCM 1965-328. Aff'd 385 F (2d) 398 (CA-7, 1967) which held that
in determining the correct boundary between these two types of assets the following
must be considered: "(1) the purpose for which the property was initially acquired; (2)
the purpose for which the property was subsequently held; (3) the extent to which
improvements, if any, were made to the property by the taxpayer; (4) the frequency,
number, and continuity of sales; (5) the extent and nature of the transactions
involved; (6) the ordinary business of the taxpayer; (7) the extent of advertising,
promotion, or other activities used in soliciting buyers for the sale of the property; (8)
the listing of property with brokers; and (9) the purpose for which the property was
held at the time of sale."
7 See Article 781, New Civil Code. "The inheritance of a person includes not only the
property and the transmissible rights and obligations existing at the time of his death,
but also those which have accrued thereto since the opening of the succession."
8 Section 182(3) (aa) of the National Internal Revenue Code prescribes an annual
fixed tax on real estate dealers. Section 194(s) defines a "real estate dealer" as
including "any person engaged in the business of buying, selling, exchanging,
leasing, or renting property as principal and holding himself out as a full or part-time
dealer in real estate or as an owner of rental property or properties rented or offered
to rent for an aggregate amount of four thousand pesos or more a year. Any person
shall be considered as engaged in business as real estate dealer by the mere fact
that he is the owner or sublessor of property rented or offered to rent for an
aggregate amount of four thousand pesos or more a year. ..."
9 10 SCRA 470; see also Republic vs. Heras, 32 SCRA 507.
10 R.A. 6110 (approved on August 9, 1969) which substantially amended the
National Internal Revenue Code seems to support the principle of good faith. Sec.
338-A thus provides: "Non-retroactivity of rulings.-Any revocation, modification, or
reversal of any of the rules and regulations promulgated in accordance with the
preceding section or any of the rulings or circulars promulgated by the Commissioner
of Internal Revenue shall not be given retroactive application if the revocation,
modification, or reversal will be prejudicial to the taxpayers, except in the following
cases; (a) where the taxpayer deliberately mis-states or omits material facts from his
return or any document required of him by the Bureau of Internal Revenue; (b) where
the facts subsequently gathered by the Bureau of Internal Revenue are materially
different from the facts on which the ruling is based; or (c) where the taxpayer acted
in bad faith."
