CREATE: Tax reform response to COVID-19

Suits The C-Suite By Donna Frances G. Ylade-Torres

(First of two parts)

To recover from economic recession and to advance towards corporate healing, the Department of Finance (DoF) fine-tuned several provisions of the Tax Reform Package 2 bill. The Corporate Recovery and Tax Incentives for Enterprises Act (CREATE) is the latest incarnation of the TRABAHO and CITIRA bills and is now part of the COVID-19 stimulus package put together by the government’s economic team.

The DoF calls CREATE the largest tax stimulus program and the first ever revenue-eroding package in the country’s history. According to the DoF, CREATE is expected to free up almost P42 billion in capital over the second half of 2020 and P625 billion in the next five years, with the government assuming that businesses reinvest their tax savings to create sustainable economic opportunities.

In a nutshell, the CREATE bill proposes to (1) accelerate Corporate Income Tax (CIT) rate reduction; (2) extend the Net Operating Loss Carry Over (NOLCO) period; and, (3) rationalize fiscal incentives to adopt to the changing business needs brought about by the pandemic.

ACCELERATED CIT RATE REDUCTION
The CREATE proposes an outright CIT rate reduction from 30% to 25%, then a gradual 1 percentage point reduction every year starting from 2023 until it hits 20% by 2027.

The acceleration of the CIT reduction timetable will help restore confidence, especially among micro, small and medium enterprises (MSMEs) that have been battered by the effects of COVID-19. The tax savings can then be used for additional working capital and sustain a massive employment drive for displaced workers.

This will also attract potential multinational investors seeking to diversify their supply chains here. By 2027, our CIT rate will be comparable to Thailand and Vietnam, which are both currently at 20%. It will then be just a matter of time before our country matches the ASEAN average of 23%.

EXTENDED NOLCO PERIOD
Non-large taxpayers will be allowed to carry over net operating losses incurred in 2020 over a period of five years from the current three years. This is a practical incentive to help MSMEs and enterprises rebuild their business operations.

However, CREATE has not yet given details on whether the extended NOLCO may be claimed by an enterprise eventually classified as a large taxpayer by the BIR within the five-year period for losses incurred back in 2020. It also appears that qualified taxpayers will have to keep operating post-pandemic to fully maximize the benefit of NOLCO.

RATIONALIZATION OF FISCAL INCENTIVES
Instead of keeping several sets of incentives currently offered by various investment promotion agencies (IPAs), CREATE proposes to rationalize and tailor-fit fiscal incentives to qualified investments.

IPAs will continue to process applications for registration but these shall be placed under the oversight of the Fiscal Incentives Review Board (FIRB). The latter will determine the target performance metrics as conditions for availing tax incentives, and unless delegated to the President or a respective IPA in certain cases, shall grant or deny the incentives recommended by the IPAs. Together with IPAs, it will formulate a Strategic Investment Priority Plan (SIPP) itemizing the priority projects and industry-location tiers, among others.

Careful reading of this proposal reveals that the FIRB will technically absorb several key functions of the IPAs. Nevertheless, streamlining the fiscal incentives can definitely change the way investors perceive our investment programs as we compete internationally for high-value projects. Investors can no longer cherry-pick from the incentives menu and go forum-shopping among the 13 current IPAs.

OTHER SALIENT FEATURES
Other proposed features in CREATE worth noting are:

1.The tax exemption on income derived from foreign currency transactions by offshore banking units and the related 10% final tax on interest income from foreign currency loans will be removed.
2.Regional Operating Headquarters (ROHQs) will be subject to CIT after two years from the effectivity of the Act.
3.Branch profit remittance tax exemption of Philippine Economic Zone Authority (PEZA)-registered entities is retained, which the CITIRA initially proposed to be eliminated.
4.The final tax rate on capital gains from the sale of shares not listed and traded on the stock exchange by foreign (resident and non-resident) corporations, as well as on interest income from FCDUs by resident foreign corporations is increased to 15%.
5.The interest arbitrage rate will be lowered until it is completely removed once the CIT rate drops to 20%.
6.The optional standard deduction for individuals and corporations, which CITIRA initially proposed to restrict, will be retained.

PENDING SENATE DELIBERATION
Unfortunately, the first regular session of the 18th Congress ran out of time to take up the bill under the Senate’s deliberations before the session adjourned on June 5. Congress, however, can convene in a special session to tackle the bill even during the break if called on by the President.

Otherwise, this will be taken up in the second regular session of the 18th Congress, with the Senate to resume on July 27. Even with the tight schedule, hopes are high that CREATE will be passed and implemented by the second half of the year. After all, CREATE was certified by the President as urgent and it is supported by various organizations and industry leaders.

CREATE BILL AS A RESPONSE TO THE COVID-19 CRISIS
Nearly all countries have moved to cushion their respective economies against the impact of COVID-19. Wage subsidies, stimulus checks, payment concessions and various financial bailouts to enterprises, among others, were implemented at varying speeds, approaches and levels of effectiveness.

No country in the world has been spared from the sharp decline and contractions of economic growth.

Two years after the TRAIN Package 1 and several bill versions since, CREATE has been repurposed as a pandemic-responsive tax reform as well as a government’s intervention to stimulate recovery and avoid long-term economic damage. The US-China Trade War has also forced ASEAN countries into a race to cut taxes and offer more incentives to investors who are either shifting their supply chains from China or are planning to diversify within Asia.

The time is now ripe for legislators to pass a responsive tax reform at this critical period. However, caution must still be in place and pace should not be equated with haste. It behooves not just the legislators but also ourselves as taxpayers to understand the important duty of dissecting the proposed measures and their finer details to arrive at a truly effective tax reform that is adaptive to the challenging needs of our time.

In the second part of this article, we will discuss in detail the rationalization of fiscal incentives through a calibrated income tax holiday, special corporate income tax, enhanced deductions and other available incentives to existing registered entities under the transitory period, as well as strategies to capitalize the fiscal incentives under the CREATE bill.

Donna Frances G. Ylade-Torres is a Senior Manager from Private Client Services, a Tax Sub-Service Line of SGV & Co.