12/21/22, 11:25 AM [ G.R. No. 143672.

April 24, 2003 ]

449 Phil. 576

THIRD DIVISION
[ G.R. No. 143672. April 24, 2003 ]
COMMISSIONER OF INTERNAL REVENUE, PETITIONER, VS.
GENERAL FOODS (PHILS.), INC., RESPONDENT.
DECISION

CORONA, J.:

Petitioner Commissioner of Internal Revenue (Commissioner) assails the resolution[1] of the

Court of Appeals reversing the decision[2] of the Court of Tax Appeals which in turn denied
the protest filed by respondent General Foods (Phils.), Inc., regarding the assessment made
against the latter for deficiency taxes.

The records reveal that, on June 14, 1985, respondent corporation, which is engaged in the
manufacture of beverages such as “Tang,” “Calumet” and “Kool-Aid,” filed its income tax
return for the fiscal year ending February 28, 1985. In said tax return, respondent corporation
claimed as deduction, among other business expenses, the amount of P9,461,246 for media
advertising for “Tang.”

On May 31, 1988, the Commissioner disallowed 50% or P4,730,623 of the deduction
claimed by respondent corporation. Consequently, respondent corporation was assessed
deficiency income taxes in the amount of P2,635,141.42. The latter filed a motion for
reconsideration but the same was denied.

On September 29, 1989, respondent corporation appealed to the Court of Tax Appeals but
the appeal was dismissed:

With such a gargantuan expense for the advertisement of a singular product,

which even excludes “other advertising and promotions” expenses, we are not
prepared to accept that such amount is reasonable “to stimulate the current sale of
merchandise” regardless of Petitioner’s explanation that such expense “does not
connote unreasonableness considering the grave economic situation taking place
after the Aquino assassination characterized by capital fight, strong deterioration
of the purchasing power of the Philippine peso and the slacking demand for
consumer products” (Petitioner’s Memorandum, CTA Records, p. 273). We are
not convinced with such an explanation. The staggering expense led us to believe
that such expenditure was incurred “to create or maintain some form of good will
for the taxpayer’s trade or business or for the industry or profession of which the
taxpayer is a member.” The term “good will” can hardly be said to have any
precise signification; it is generally used to denote the benefit arising from
connection and reputation (Words and Phrases, Vol. 18, p. 556 citing Douhart vs.
Loagan, 86 III. App. 294). As held in the case of Welch vs. Helvering, efforts to
establish reputation are akin to acquisition of capital assets and, therefore,
expenses related thereto are not business expenses but capital expenditures.
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(Atlas Mining and Development Corp. vs. Commissioner of Internal Revenue,

supra). For sure such expenditure was meant not only to generate present sales
but more for future and prospective benefits. Hence, “abnormally large
expenditures for advertising are usually to be spread over the period of years
during which the benefits of the expenditures are received” (Mertens, supra,
citing Colonial Ice Cream Co., 7 BTA 154).

WHEREFORE, in all the foregoing, and finding no error in the case appealed
from, we hereby RESOLVE to DISMISS the instant petition for lack of merit and
ORDER the Petitioner to pay the respondent Commissioner the assessed amount
of P2,635,141.42 representing its deficiency income tax liability for the fiscal
year ended February 28, 1985.”[3]

Aggrieved, respondent corporation filed a petition for review at the Court of Appeals which
rendered a decision reversing and setting aside the decision of the Court of Tax Appeals:

Since it has not been sufficiently established that the item it claimed as a
deduction is excessive, the same should be allowed.

WHEREFORE, the petition of petitioner General Foods (Philippines), Inc. is

hereby GRANTED. Accordingly, the Decision, dated 8 February 1994 of
respondent Court of Tax Appeals is REVERSED and SET ASIDE and the letter,
dated 31 May 1988 of respondent Commissioner of Internal Revenue is
CANCELLED.

SO ORDERED.[4]

Thus, the instant petition, wherein the Commissioner presents for the Court’s consideration a
lone issue: whether or not the subject media advertising expense for “Tang” incurred by
respondent corporation was an ordinary and necessary expense fully deductible under the
National Internal Revenue Code (NIRC).

It is a governing principle in taxation that tax exemptions must be construed in strictissimi

juris against the taxpayer and liberally in favor of the taxing authority;[5] and he who claims
an exemption must be able to justify his claim by the clearest grant of organic or statute law.
An exemption from the common burden cannot be permitted to exist upon vague
implications.[6]

Deductions for income tax purposes partake of the nature of tax exemptions; hence, if tax
exemptions are strictly construed, then deductions must also be strictly construed.

We then proceed to resolve the singular issue in the case at bar. Was the media advertising
expense for “Tang” paid or incurred by respondent corporation for the fiscal year ending
February 28, 1985 “necessary and ordinary,” hence, fully deductible under the NIRC? Or
was it a capital expenditure, paid in order to create “goodwill and reputation” for respondent
corporation and/or its products, which should have been amortized over a reasonable period?

Section 34 (A) (1), formerly Section 29 (a) (1) (A), of the NIRC provides:

(A) Expenses.-

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(1) Ordinary and necessary trade, business or professional
expenses.-

       
(a) In general.- There shall be allowed as deduction from
gross income all ordinary and necessary expenses paid or
incurred during the taxable year in carrying on, or which
are directly attributable to, the development, management,
operation and/or conduct of the trade, business or exercise
of a profession.

Simply put, to be deductible from gross income, the subject advertising expense must
comply with the following requisites: (a) the expense must be ordinary and necessary; (b) it
must have been paid or incurred during the taxable year; (c) it must have been paid or
incurred in carrying on the trade or business of the taxpayer; and (d) it must be supported by
receipts, records or other pertinent papers.[7]

The parties are in agreement that the subject advertising expense was paid or incurred within
the corresponding taxable year and was incurred in carrying on a trade or business. Hence, it
was necessary. However, their views conflict as to whether or not it was ordinary. To be
deductible, an advertising expense should not only be necessary but also ordinary. These two
requirements must be met.

The Commissioner maintains that the subject advertising expense was not ordinary on the
ground that it failed the two conditions set by U.S. jurisprudence: first, “reasonableness” of
the amount incurred and second, the amount incurred must not be a capital outlay to create
“goodwill” for the product and/or private respondent’s business. Otherwise, the expense
must be considered a capital expenditure to be spread out over a reasonable time.

We agree.

There is yet to be a clear-cut criteria or fixed test for determining the reasonableness of an
advertising expense. There being no hard and fast rule on the matter, the right to a deduction
depends on a number of factors such as but not limited to: the type and size of business in
which the taxpayer is engaged; the volume and amount of its net earnings; the nature of the
expenditure itself; the intention of the taxpayer and the general economic conditions. It is the
interplay of these, among other factors and properly weighed, that will yield a proper
evaluation.

In the case at bar, the P9,461,246 claimed as media advertising expense for “Tang” alone
was almost one-half of its total claim for “marketing expenses.” Aside from that, respondent-
corporation also claimed P2,678,328 as “other advertising and promotions expense” and
another P1,548,614, for consumer promotion.

Furthermore, the subject P9,461,246 media advertising expense for “Tang” was almost
double the amount of respondent corporation’s P4,640,636 general and administrative
expenses.

We find the subject expense for the advertisement of a single product to be inordinately
large. Therefore, even if it is necessary, it cannot be considered an ordinary expense
deductible under then Section 29 (a) (1) (A) of the NIRC.
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Advertising is generally of two kinds: (1) advertising to stimulate the current sale of
merchandise or use of services and (2) advertising designed to stimulate the future sale of
merchandise or use of services. The second type involves expenditures incurred, in whole or
in part, to create or maintain some form of goodwill for the taxpayer’s trade or business or
for the industry or profession of which the taxpayer is a member. If the expenditures are for
the advertising of the first kind, then, except as to the question of the reasonableness of
amount, there is no doubt such expenditures are deductible as business expenses. If,
however, the expenditures are for advertising of the second kind, then normally they should
be spread out over a reasonable period of time.

We agree with the Court of Tax Appeals that the subject advertising expense was of the
second kind. Not only was the amount staggering; the respondent corporation itself also
admitted, in its letter protest[8] to the Commissioner of Internal Revenue’s assessment, that
the subject media expense was incurred in order to protect respondent corporation’s brand
franchise, a critical point during the period under review.

The protection of brand franchise is analogous to the maintenance of goodwill or title to

one’s property. This is a capital expenditure which should be spread out over a reasonable
period of time.[9]

Respondent corporation’s venture to protect its brand franchise was tantamount to efforts to
establish a reputation. This was akin to the acquisition of capital assets and therefore
expenses related thereto were not to be considered as business expenses but as capital
expenditures.[10]

True, it is the taxpayer’s prerogative to determine the amount of advertising expenses it will
incur and where to apply them.[11] Said prerogative, however, is subject to certain
considerations. The first relates to the extent to which the expenditures are actually capital
outlays; this necessitates an inquiry into the nature or purpose of such expenditures.[12] The
second, which must be applied in harmony with the first, relates to whether the expenditures
are ordinary and necessary. Concomitantly, for an expense to be considered ordinary, it must
be reasonable in amount. The Court of Tax Appeals ruled that respondent corporation failed
to meet the two foregoing limitations.

We find said ruling to be well founded. Respondent corporation incurred the subject
advertising expense in order to protect its brand franchise. We consider this as a capital
outlay since it created goodwill for its business and/or product. The P9,461,246 media
advertising expense for the promotion of a single product, almost one-half of petitioner
corporation’s entire claim for marketing expenses for that year under review, inclusive of
other advertising and promotion expenses of P2,678,328 and P1,548,614 for consumer
promotion, is doubtlessly unreasonable.

It has been a long standing policy and practice of the Court to respect the conclusions of
quasi-judicial agencies such as the Court of Tax Appeals, a highly specialized body
specifically created for the purpose of reviewing tax cases. The CTA, by the nature of its
functions, is dedicated exclusively to the study and consideration of tax problems. It has
necessarily developed an expertise on the subject. We extend due consideration to its opinion
unless there is an abuse or improvident exercise of authority.[13] Since there is none in the
case at bar, the Court adheres to the findings of the CTA.
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Accordingly, we find that the Court of Appeals committed reversible error when it declared
the subject media advertising expense to be deductible as an ordinary and necessary expense
on the ground that “it has not been established that the item being claimed as deduction is
excessive.” It is not incumbent upon the taxing authority to prove that the amount of items
being claimed is unreasonable. The burden of proof to establish the validity of claimed
deductions is on the taxpayer.[14] In the present case, that burden was not discharged
satisfactorily.

WHEREFORE, premises considered, the instant petition is GRANTED. The assailed

decision of the Court of Appeals is hereby REVERSED and SET ASIDE. Pursuant to Sections
248 and 249 of the Tax Code, respondent General Foods (Phils.), Inc. is hereby ordered to
pay its deficiency income tax in the amount of P 2,635,141.42, plus 25% surcharge for late
payment and 20% annual interest computed from August 25, 1989, the date of the denial of
its protest, until the same is fully paid.

SO ORDERED.

Puno (Chairman), Panganiban, Sandoval-Gutierrez, and Carpio Morales, JJ., concur.

[1]Penned by Associate Justice Andres B. Reyes and concurred in by Associate Justices

Quirino D. Abad Santos, Jr. and Romeo A. Brawner of the Third Division.

[2]
Penned by Associate Judge Manuel K. Gruba and concurred in by Associate Judge
Ramon O. de Veyra.

[3] Rollo, pp. 22-23.

[4] Id., p. 24.

[5] Commissioner of Internal Revenue vs. Visayan Electric Co., 23 SCRA 715 [1968].

[6] Asiatic Petrolium Co. vs. Llanas, 49 Phil 466 [1926] cited in Davao Light & Power Co.
vs. Commissioner of Customs, 44 SCRA 122 [1972].

[7] Zamora vs. Collector, 8 SCRA 163 [1963].

[8]Dated June 14, 1988; Petition for Review, p. 8 citing BIR Records, pp. 198-199; Rollo, p.
15.

[9] Mertens, Vol. 4A 25.38 p. 190 citing Colonial Ice Cream Co., 7 BTA 154.

[10] Welch vs. Helvering, 290 US 111 [1933].

[11] Revenue Audit Memorandum Order No. 1-87.

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[12] Mertens, Vol. 4A 25.38 p.190, citing E.H. Sheldon & Co., 19 TC 481 [1952].

[13]Commissioner vs. Court of Tax Appeals & Atlas Consolidated Mining and Development
Co., 204 SCRA 182 [1991].

[14] Commissioner vs. Algue, Inc., 158 SCRA 9 [1988].

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