Imposing Creditable Withholding Tax on Certain Income Payments by Joint Ventures/Consortiums

The bureau has issued Revenue Regulations (RR) No. 14-2023 to further implement Section 57 (B) of the provisions of Sections 244 and 245 of the National Internal Revenue Code of 1997, as amended, and subsequently amend RR No. 2-98 by adding items (V) and (W) imposing creditable withholding tax on certain income payments by joint ventures/consortiums.

The amendments stated in RR No. 14-2023 are as follows:

SECTION 2. AMENDMENTS. - The pertinent provisions of Section 2.57.2 of RR No. 2-98, as amended, is hereby further amended to read as follows:

"Sec. 2.57.2. Income Payments Subject to Creditable Withholding Tax and Rates Prescribed Thereon. Except as herein otherwise provided, there shall be withheld a creditable income tax at the rates herein specified for each class of payee from the following items of income payments to persons residing in the Philippines:

xxx    xxx    xxx

(V) Income payment made by joint ventures/consortiums. - Income payments made by joint ventures, whether incorporated or not, taxable or non-taxable, to their local/resident supplier of goods and services, shall be subjected to the following withholding tax rates:

Supplier of goods - One percent (1%)

Supplier of services - Two percent (2%)

(W) Distributive share of co-ventures/members from the net income of the joint venture/consortium not taxable as corporation. - On the share of each co-venturer/member from the net income of the joint venture/consortium not taxable as corporation prior to actual or constructive distribution thereof - Fifteen percent (15%)

xxx     xxx     xxx"

 Please refer RR No. 14-2023 dated October 2, 2023 of the full text of the said regulations.

Corporation

·         The term “Corporation” shall include partnerships, no matter how created or organized, joint stock companies, joint accounts (ceuntas en participacion), associations, or insurance companies. It also includes mutual fund companies, regional operating headquarters of multinational corporations, and joint accounts.

The term “Corporation” does not include the following:

1.       A general professional partnership – a partnership formed by persons for the sole purpose of exercising their common profession.

2.       A joint venture or consortium formed for the purpose of undertaking construction projects.

3.       A joint or consortium for engaging in petroleum, coal, geothermal and other energy operations pursuant to an operating consortium agreement under a service contract with the government.

Joint venture	Is a commercial undertaking by two or more persons, differing from a partnership in that it relates to the disposition of a single lot of goods or the completion of a single project.
	Generally, joint ventures are subject to tax (taxable joint ventures) Exempt joint ventures presented in A2 and A3 above
	The share in a taxable joint venture’s net income is treated as inter-corporate dividend which is generally exempt from income tax.  In case of individual venturer, it is subject to 10% final tax.
	The share in a non-taxable joint venture’s net income is subject to corporate income tax or Sec. 24A, in case of individual co-venturer.
Under Section 3 of RR 20-2012, Effective June 2012, a joint venture or consortium formed for the purpose of undertaking construction projects not considered as corporation under Sec 22 of the NIRC of 1997 as amended, should be: -  For the undertaking of a construction project; and -  Should involve joining or pooling of resources by licensed local contracts; that is, licensed as general contractor by the Philippine Contractors Accreditation Board (PCAB) of the Department of Trade and Industry (DTI); -  These local contractors are engaged in construction business; and -  The Joint Venture itself must likewise be duly licensed as such by the Philippine Contractors Accreditation Board (PCAB) of the Department of Trade and Industry (DTI) Mandatory Enrollment to the BIR’s EFPS All licensed local contractors are required to enroll themselves to the Bureau of Internal Revenue’s Electronic Filing and Payment System (EFPS). The enrollment should be done at the Revenue District Office (RDO) where the local contractors are registered as taxpayers. Joint ventures involving foreign contractors may also be treated as a non-taxable corporation provided: -  The member foreign contractor is covered by a special license as contractor by the Philippine Contractors Accreditation Board (PCAB) of the Department of Trade and Industry (DTI); and -  The construction project is certified by the appropriate Tendering Agency (government office) that the project is a foreign financed/ internationally-funded project and that international bidding is allowed under the Bilateral Agreement entered into by and between the Philippine Government and the foreign / international financing institution pursuant to the implementing rules and regulations of Republic Act No. 4566 otherwise known as Contractor’s License Law. Absent any one the aforesaid requirements, the joint venture or consortium formed for the purpose of undertaking construction projects shall be considered as taxable corporations. In addition, the tax-exempt joint venture or consortium as herein defined shall not include those who are mere suppliers of goods, services or capital to a construction project. The member to a Joint Venture not taxable as corporation shall each be responsible in reporting and paying appropriate income taxes on their respective share to the joint ventures profit.
Joint stock companies	Are constituted when a group of individuals, acting jointly, establish and operate business enterprise under an artificial name, with an invested capital divided into transferable shares, an elected board of directors, and other corporate characteristics , but operating without formal government authority.
Joint accounts (cuentas en participacion)	Is constituted when one interests himself in the business of another by contributing capital thereto, and sharing in the profits or losses in the proportion agreed upon.  They are not subject to any formality and may be privately contracted orally or in writing.