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Tax relief from net operating losses: Useful or futile?

The prolonged community quarantines during the pandemic have caused a significant reduction in economic activity. Sectors and industries deemed non-essential experienced closures or resorted to reducing their staff, which resulted in low productivity. Various establishments were challenged with low demand for their products and services, ultimately leading to a decrease in net operating income — or worse — to net operating losses.

From a tax perspective, can businesses still recover their net operating losses arising from the effects of the pandemic?

To address the impact of COVID-19, the Senate and the House of Representatives enacted Republic Act (RA) No. 11494 or the Bayanihan to Recover as One Act (Bayanihan II) effective Sept. 15, 2020 with an original expiry date of Dec. 19, which has since been extended to mid-2021. Bayanihan II provides for COVID-19 response and recovery interventions and mechanisms to accelerate the recovery and to bolster the resiliency of the economy.

The extension of Bayanihan II to June 30 was signed on Dec. 29, in the form of RA 11519.

Among the response and recovery interventions provided under Bayanihan II are the carry-over of net operating losses incurred by the business or enterprise for taxable years 2020 and 2021 as deductions from gross income (for purposes of computing net taxable income subject to regular corporate income tax) over the next five consecutive taxable years immediately following the year of such loss [Section 4 (bbbb) of the Bayanihan II].

One of the features of Bayanihan II was a provision that Section 4 (bbbb) would remain in effect even after the expiration of the Act, provided that the deductions are claimed within the next five consecutive taxable years.

In the implementing regulations [Revenue Regulations (RR) No. 25-2020 dated Sept. 30] of Bayanihan II, net operating loss is defined as the excess of allowable deductions or expenses (as enumerated in the Tax Code) over the taxable gross income of the business in a taxable year, whether calendar or fiscal year.

Recently, the Bureau of Internal Revenue (BIR) clarified, through Revenue Memorandum Circular (RMC) No. 138-2020 dated Dec. 22, that the net operating loss carry-over (NOLCO) may be availed of under RR No. 25-2020 for taxpayers operating on fiscal-year reporting. The RMC enumerated fiscal years ending between July 31 and Nov. 30, 2020 and Jan. 31 to June 30, 2021 as falling within the taxable year 2020. Meanwhile, fiscal years ending between July 31 to Nov. 30, 2021 and Jan. 31 to June 30, 2022 fall within the taxable year 2021. Thus, net losses incurred by businesses or taxpayers during these fiscal years can be carried over as deductions from gross income for the next five consecutive taxable years.

It should be noted that generally, under existing rules (Section 34 of the Tax Code and RR No. 14-01), the accumulated net operating loss of a business by individuals engaged in trade or business or practice of profession and domestic and resident foreign corporations can be carried over as a deduction from gross income only for the next three consecutive taxable years.

The benefit granted under the Bayanihan II extending NOLCO for an additional two years is welcome relief for businesses that have been significantly affected by the pandemic and have suffered operating losses in 2020, as well as those still recovering and expecting negative results from operations in 2021.

However, while a business may incur a net operating loss and is allowed NOLCO deductions in subsequent years, the corporation is still liable to pay the 2% minimum corporate income tax (MCIT). The MCIT is based on gross income if the same is higher than the 30% regular corporate income tax (RCIT) based on net taxable income. Accordingly, the extended NOLCO deduction may have no impact or relevance if the corporation pays MCIT.

Another related development is the reconciled version of the Corporate Recovery and Tax Incentives for Enterprises Act (CREATE), which was ratified by the House of Representatives and the Senate on Feb. 1 and 3, respectively. It covers package 2 of the tax reform program, which proposes amendments to the corporate income tax system, among others, and provides for a reduction in the MCIT rate to 1% effective July 1, 2020 until June 30, 2023.

However, this reduction in MCIT rate appears to provide temporary tax relief only during the period when businesses may possibly incur net operating losses due to the pandemic. For the enhanced or extended NOLCO to have significant impact during the period when businesses are supposed to have recovered and claimed NOLCO deductions, the effectivity period of the MCIT relief should ideally be consistent with the extended period of the NOLCO.

It is hoped that, as legislators move forward with the CREATE Bill, the possibility of extending the period of MCIT relief is considered to better align the bill with NOLCO provisions of Bayanihan II. Otherwise, between 2023 and 2026, when net operating losses from 2020 and 2021 are allowed to be claimed as deductions, businesses may end up paying the 2% MCIT instead of taking full advantage of the extended NOLCO. Harmonizing these areas is believed to allow taxpayers to enjoy full tax relief and support.

This article is for general information only and is not a substitute for professional advice where the facts and circumstances warrant. The views and opinions expressed above are those of the author and do not necessarily represent the views of SGV & Co.


Judy J. Castroverde is a Tax Senior Director from the Global Compliance Reporting Service Line of SGV & Co.

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