Monday, October 21, 2013

Ten years of solitary retention (of Books)

THE BUREAU of Internal Revenue (BIR) recently issued Revenue Regulations No. (RR) 17-2013, dated Sept. 27, 2013, to clarify the retention period and prescribe the guidelines on the preservation of books of accounts and other accounting records of taxpayers.

Under the said regulations, all taxpayers are required to preserve their books of accounts, including subsidiary books and other accounting records for a period of 10 years reckoned from the day after the deadline for filing a return or if filed after the deadline, from the date of filing of the return, for the taxable year when the last entry was made in the books of accounts. It also provides that, if the taxpayer has any pending protest or claim for tax credit/refund of taxes, and the books and records concerned are material to the case, the taxpayer is required to preserve his/its books of accounts and other accounting records until the case is finally resolved.

In addition to the responsibility of the taxpayer to retain the books for ten years, the independent CPA who audited the records and certified the financial statements of the taxpayer also has the responsibility to maintain and preserve copies of the audited and certified financial statements for a period of 10 years from the due date of filing the annual income tax return (ITR) or the actual date of filing thereof, whichever comes later.

All books, registers and other records, and vouchers and other supporting papers required by the BIR shall be kept at all times at the taxpayer’s place of business, subject to inspection by any internal revenue officer, and upon demand, the same must be immediately produced and submitted for inspection. They may be examined and inspected for purposes of regular audit or extraordinary audit, requests for exchange of information by a foreign tax authority under Sections 6 and 71 of the National Internal Revenue Code of 1997 (NIRC), and in the exercise of the Commissioner’s power to obtain information under Section 5 of the NIRC, among others. Examination and inspection of books of accounts and other accounting records shall be done in the taxpayer’s office or place of business or in the BIR office.

More importantly, failure to observe the new retention requirements will subject the errant taxpayer to penalties provided in Sections 266, 275, and other pertinent provisions of the Tax Code and Section 6 of Republic Act No. (RA) 10021, otherwise known as the “Exchange of Information on Tax Matters Act of 2009”.

Obviously, this particular issuance creates more burden than ease for the taxpayer. Yes, keeping accurate and orderly books of accounts and other accounting records has its benefits, but such obligation should not be painstakingly overstressed. From the tax audit perspective, organized documentary system makes audit investigations more tolerable and defensible. It seems that the BIR failed to take into consideration the expenses that the taxpayer would have to shoulder to retain these records for ten years, as this would entail cost for maintenance and storage.

Section 232 of the Tax Code mandates all corporations, companies, partnerships or persons required by law to pay internal revenue taxes to keep a journal and a ledger or their equivalents. The reason for requiring books of accounts, while stated in the law itself, was also clarified by the Courts in a plethora of cases, and that is in order that all taxes due the Government may readily and accurately be ascertained and determined any time of the year, not only by the taxpayer but also by the different tax collection agencies of the government (Reyes vs. Collector, 1956).

However, by issuing RR 17-2013, the BIR has once again exercised its sweeping authority to interpret the provisions of the Tax Code. The new regulation is quite contrary to Section 203 of the Tax Code, which provides that “internal revenue taxes shall be assessed within three years after the last day prescribed by law for the filing of the return, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of such period.” The above provision implies that the records of the taxpayer must be preserved for a period of three years from the date of the last entry made thereon.

On the other hand, the Tax Code recognizes several exceptions to this general rule. Under Section 222 of the Tax Code, the right of the BIR to examine and/or inspect books of accounts and other accounting records of taxpayers may extend beyond the three-year period of limitation of assessment, and that is in the case of a false or fraudulent return with intent to evade tax or of failure to file a return. Under the said provision, the tax may be assessed, or a proceeding in court for the collection of such tax may be filed without assessment, at any time within 10 years after the discovery of the falsity, fraud or omission. Also, the three-year period may be waived if both the BIR Commissioner and the taxpayer agree in writing that the period to assess be extended.

While it is in the best interest of both the government and the taxpayers that books of accounts and accounting records are retained for a longer period, this should not be an excuse to expand the provisions of the Tax Code by mandating the retention of accounting records for an unreasonable time. This is a very dangerous regulation as it no longer distinguishes whether the taxpayer has filed a fraudulent return or not. From its plain reading, the regulation plainly assumes that all taxpayers are filing fraudulent returns and are thereby bound to be assessed by the BIR for a period of 10 years. More importantly, the 10-year period in fraud cases is counted from the date of discovery. Hence, requiring the taxpayer to retain records for 10 years from filing of return will still not cover or address cases involving fraud.

Typically, in the absence of a BIR tax audit or findings of fraud, taxpayers should be able to dispose of accounting records after the three-year assessment period has passed. However, with this regulation, all taxpayers will have to deviate from keeping their documents and books for three years, as each and every taxpayer must now comply with the BIR requirement under the pain of penalties, to retain records for 10 years.

Time and time again, we say that one of the characteristics of a sound tax system is that tax laws must be capable of being effectively enforced with the least inconvenience to the taxpayer. It assumes that the rules and procedures for the payment of taxes, audit policies, and availing of remedies are easily understood by the taxpayer. Clearly, this is not the case under RR 17-2013, which fearlessly announces 10 years of solitary retention of records for all taxpayers.

The author is a tax associate with the Tax Advisory & Compliance Division of Punongbayan & Araullo. P&A is a member firm within Grant Thornton International Ltd.


source:  Businessworld

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