As a fast-paced business country in Asia, the Philippines offer diverse business opportunities to individuals who wish to engage in business, whether locally, internationally, or even at home.
During and after the effects of the pandemic, business owners had to minimize face-to-face interactions following strict government restrictions. With the recent lifting of interaction bans and the resurgence of normal social protocol, the government is paving the way to forge ahead and integrate new protocols with what the pandemic has left the economy. Consequently, with business comes taxes.
One of the government bodies responsible for overlooking the delicate flow of tax incentives for industries in the country is the Philippine Economic Zone Authority (PEZA). This government agency can provide specific tax incentives if they operate within a PEZA zone.
However, being a PEZA-registered entity requires being consistently within the PEZA zone. This may not be doable if the employees no longer wish to work within the PEZA zone and instead wish to continue working from home. To bridge this gap whereby the PEZA entity risks losing its staff vs. risk losing its tax incentives, the Philippine Economic Zone Authority (PEZA) released a memorandum allowing the transfer of registered information technology and business process management (IT- BPM) registrations from PEZA to the Board of Investments (BOI) until December 31 of this year (2022). This is in line with the decision of the Fiscal Incentive Interview Board (FIRB) on allowing full work-from-home (WFH) arrangements for IT-BPM firms located in PEZA Zones, so long as they transfer their PEZA registration properly to the BOI.
The transfer hopes to institutionalize hybrid workplaces for ecozone IT locators as the economy starts to move forward.
Following MC. No. 2022 – Guidelines on Registration
Pursuant to PEZA’s Memorandum Circular No. 2022 – 067, addresses that all registered business enterprises (RBEs) in the IT-BPM sector, zone administrators, managers, and officers-in-charge follow the Guidelines on the Registration with the BOI.
In addition to the transfer, PEZA would still retain its authority and jurisdiction over transferee RBE, including its monitoring and reporting of the performance of the said transferees – since there will be no cancellation of registration, only its transfer.
Furthermore, IT-BPM firms wishing to transfer can still keep their offices within PEZA-registered centers and buildings.
Guidelines on the Registration with the BOI of existing RBE’s in the IT-BPM Sector under DTI MC No. 22-19
In accordance with Memorandum Circular (MC) No. 22-19 dated October 18 2022, the Department of Trade and Industry (DTI) issued procedures regarding the registration of RBEs in the IT-BPM sector with the BOI – this is to properly introduce and adopt the 100% WFH arrangement, to wit –
“… the Fiscal Incentives Review Board (FIRB), pursuant to Section 297(A) of the National Internal Revenue Code of 1997, as amended by the CREATE Act, issued FIRB Resolution No. 026-22 dated 14 September 2022 allowing the affected registered Business enterprises (RBEs) in the Information Technology-Business Process Management (IT_BPM) sector to transfer their registration to the BOARD of Investments (BOI) until 31 December 2022 and to adopt up to 100% WFH arrangement, Provided that: “affected RBES” shall cover those affected RBEs that have remaining tax incentives under Section 311 of the NIRC of 1997, as amended, or those with approved incentives on or before 14 September 2022 under the CREATE Act with the concerned IPA; …
… the monitoring of the affected RBEs compliance and the availment of their remaining incentives shall remain with the Investment Promotion Agency (IPA) administering such economic zones …” (MC No. 22-19)
The following protocol is expected from companies who want to transfer registration:
Covered RBEs shall be obligated to submit to the Philippines Economic Zone Authority (PEZA), through email at [email protected], an accomplished Request to Register with the Board of Investments (BOI) Form (Annex A). It is important to note that PEZA-registered IT Enterprises have until December 31, 2022 – transferees must process their registration with the BOI under DTI MS No. 22-19 within this period.
If the IT Enterprise’s validation is still in process, it is best advised to follow up on its status within the given time period.
Aside from the attachment of Annex A, the RBE shall duly attach scanned copies of its Certificate of Registration (COR) and its Registration, and Supplemental Agreements (RSA) acquired from PEZA.
Please take note of the completeness of all submitted SAs and RAs, since its existence shall form part of the terms and conditions of registration with the BOI.
Once these aforementioned forms are ensured, PEZA shall now endorse the RBEs request for transfer and registration to the BOI – as the aforementioned forms will exhibit and prove that the RBEs are compliant with the conditions of registration and its good standing with PEZA.
Significantly, PEZA will still continue to administer the fiscal and non-fiscal incentives of RBEs as well as the applicability of PEZAs Rules and Regulations regarding business operations, despite the said RBEs transfer of registration to the BOI –
- This includes, for fiscal incentives, the validation of ITH incentives as well as the issuance of CETI, VAT Certifications and other applicable certificates. For non-fiscal incentives, this includes the PEZA Visa, the issuance of business permits, automated importation, and other applicable documents.
- The approval of SCO, submission of reportorial requirements, movement of equipment, application of Letters of Authority (LOA) including local sales, importation of equipment, transfer of operations, reduction of the lease, and disposal of assets etc., shall still be covered by PEZA.
- No bond in whatever form, however, shall be imposed on the movement of capital equipment within and outside the PEZA economic zones for the purpose of the RBEs registration with the BOI.
This is in accordance with Section 5 of MC No. 22-19, stating –
“ …. The covered RBE shall ensure that the number of laptops/other equipment of the covered RBE outside the ecozone or freeport does not exceed the number of its employees under the WFH arrangement. Upon approval of the concerned IPA, additional laptops/other equipment may be allowed if reasonably needed to perform the registered project of activity.
Within 30 days from the issuance of the BOI Certificate of Registration, covered RBEs shall submit to the concerned IPA the following:
- List of equipment and/or other assets brought out of the economic or freeport zones, including the quantity if laptops, desktops, or other assets;
- Acquisition cost, book value and year of acquisition of the equipment and/or other assets; and
- Total number of employees and number of employees under the WFH arrangement. …” (Sec. 5, MC No. 22-19)
Concerning the availment of incentives, pursuant to Section 3 of MC No. 22-19 –
“… the concerned IPA shall continue to administer the remaining tax incentives of the covered RBEs within the corresponding period of entitlement as indicated in the issued BOI Certificate of Registration. To avail of the remaining tax incentives, the covered RBEs shall file their applications for availment with the concerned IPA.
Nothing herein shall affect the other incentives and non-fiscal incentives that the covered RBEs are enjoying under their original registration with the concerned IPA, or under the NIRC or other laws, provided that the registration with the concerned IPA is maintained by the covered RBE.
After the lapse of the period of the remaining tax incentives, the existing registered project of the covered RBEs shall not be entitled to additional incentives, unless the activity qualifies as a new investment or qualified expansion under the Strategic Investment Priority Pan, which shall be subject to a separate application for registration…”
Predominantly, the covered RBEs are still obligated to maintain an office inside PEZA-registered IT centers and/or buildings. Failure to do so shall result in the cancellation of the RBEs registration with PEZA as an IT Enterprise and its transfer registration with the BOI. At the event of necessity, the BOI may require the concerned IPA to provide a detailed report regarding the compliance of the covered RBEs and their attached tax incentives availment.
Following this Memorandum Circular of 2022, the Philippine Economic Zone Authority (PEZA) is authorized to issue subsequent and additional guidelines that would supplement circular no. 22-19.
General Procedure in Accordance with Section 2 of MC No. 22-19
1) Filing of Request
- The affected RBE shall file with the concerned IPA using the prescribed Request to Register with BOI Form (Annex A).
2) IPA Endorsement to BOI
- Affected IPA shall then endorse to BOI Infrastructure and Services Industries Service (ISIS) the request from the covered RBEs using IPA List of Endorsed RBEs (Annex B) Template with the following documents:
- Scanned copy of covered RBEs original and authenticated Certificate of Registration (COR) along with the Terms and Conditions.
- Scanned copy of “Request to Register with BOI Form” duly accomplished by the covered RBE.
3) Issuance of BOI Certificate of Registration
After complying with the required endorsement and payment of the applicable fee (P2,250.00) with the BOI, the Infrastructure and Services Industries Service (ISIS) will then issue a certificate stating the registration, the remaining incentives and the period of entitlement of the concerned RBEs.
Need further information and assistance regarding the application? Talk to our Legal team at Duran & Duran-Schulze Law to know more about the requirements and process. Call us today at (+632) 478 5826 or send an email to [email protected] for more information.