Professional Documents
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TRANSFER TAX - tax imposed upon the gratuitous transfer of property ownership. It is also a
privilege tax imposed on the act of passing ownership of property.
ESTATE TAX - tax on the right of the deceased person to transmit his/her estate to his or her
lawful heirs and beneficiaries at the time of death.
levied upon the transfer of the net estate of a decedent to his heirs
an excise tax because it is imposed on the exercise of the right to transfer ownership
over the property
accrues at the moment of death of the decedent
ELEMENTS OF SUCCESSION
Decedent- a person who dies and left a property
Estate- refers to the property, rights and obligations left by the decedent
Heirs- beneficiary of the estate
KINDS OF SUCCESSION
TESTAMENTARY SUCCESSION-designation of heirs; executed through a last will
and testament
LEGAL OR INTESTATE- transmission of properties where there is no will, or if there
is a will, the same is void or nobody succeeds in the will
MIXED- transmission of properties which is affected partly by will and partly by
operation of law.
KINDS OF SUCCESSORS
LEGATEE – an heir to a particular personal property given by virtue of a will
DEVISEE – an heir to a particular real property given by virtue of a will
EXTRAJUDICIAL SETTLEMENT - the heirs themselves settled the distribution of the property
without using the rule of legitime
COMPULSORY HEIRS
Legitimate children and descendants with respect to their legitimate parents and
ascendants
In default of the foregoing, legitimate parents and ascendants, with respect to
legitimate children and descendants
Spouse
Illegitimate children(child of unmarried couple)
RULE OF LEGITIME
The share of legitimate child is 50% of the estate.
The share of wife is 25% or ¼ of the entire hereditary estate. (25%-free portion- can
be distribute through last will and testament or proportionately to forced heirs)
The share of the wife is equivalent to the share of legitimate child. (If several children)
The share of one illegitimate child is ½ of the share of a legitimate child
If the decedent is married, the gross estate shall also include all common properties (conjugal or
community) of the spouses.
The gross estate of a resident or citizen of the Philippines consists of the following, regardless
of location:
Real property
The gross estate of a non-resident, who at the time of his death was not a citizen of the
Philippines, consists of real estate located in the Philippines, tangible personal property in the
Philippines, and as a general rule or when the reciprocity rule does not apply, intangible personal
property in the Philippines.
The following among others, are intangible personal property located in the Philippines (statutory
enumeration):
If the laws of the foreign country of which the decedent was a citizen and resident
at the time of death allows similar exception from transfer taxes or death taxes of
every character in respect of intangible personal property owned by citizens of
the Philippines not residing in that foreign country.
1. Real or immovable
property situated:
2. Tangible personal
property acquired:
3. Intangible personal
property with situs:
Shares or rights in
partnership business or industry
established in the Philippines
NOTE: Intangible personal property located within the Philippines of a non-resident alien is subject to
the rule of reciprocity. If there is reciprocity, it is not subject to estate tax in the Philippines.
Notes or other claims held by the decedent should be included in the gross estate even though
they are cancelled by the decedent’s will.
Various statutory provisions which exempt bonds, notes, bills and the certificates of indebtedness
of the government from taxation are not applicable to the estate tax since this tax is an excise tax
on the rights to transfer properties and not on the property transferred.
As a general rule, the situs of a property is the domicile or residence of the owner. However,
such general rule is not applicable when a property has a situs other than the domicile or
residence of the owner, or when the rule is not consistent with the express provisions of the
estate. For example, bonds, mortgages and certificates of stock are taxable at the place where
they are physically located.
The gross estate of the decedent shall be appraised or valued at the time of his death.
In general, the gross estate shall be valued at its fair market value at the time of
decedent’s death.
REAL PROPERTIES: should be valued at the current fair market value (FMV) as shown
in the schedule of values fixed by the Provincial/City Assessors, or the fair market as
determined by the Commissioner of Internal Revenue, whichever is higher.
PERSONAL PROPERTIES: should be reported t the acquisition cost for the recently
acquired properties, or the current market price for the previously acquired properties.
STOCKS, BONDS, AND OTHER SECURITIES if listed in the local stock exchange, the
value is the mean between the highest and the lowest quoted selling prices on the date of
death or the nearest date when there was sale.
If not listed on an exchange, the value should be the book value at the date of death.
[(Par value + Retained Earnings)/ Outstanding shares issued] * the number of shares
included in the estate.
a. Revocable transfers
2. Others:
REVOCABLE TRANSFER
The donor retains the option to relinquish such power in contemplation of death.
Exceptions:
b. If the decedent’s power could be exercised only with the consent of all
parties having an interest in the transferred property, and if the power
does not affect the rights of all parties.
c. Where the decedent has been completely stripped of the power at the
time of his death.
The main reason behind this provision is to reach schemes to evade the estate
tax liability, by the use of other forms of conveyances rather than by succession
or transfer mortis causa.
Where a donation was made concurrently with the execution of will, or where the
time between the making of a gift and the death of the donor was relatively close,
the transfer were held to be in contemplation of death.
b. The decedent transferred title to the property but retained for his lifetime
the right to possess or enjoy the property or the income therefrom, or the
rights to designate whom shall possess or enjoy the same.
If the power to consume, or appropriate property and/or income for the benefit of
the decedent is limited to an ascertainable standard of living pertinent to his
health, education support or maintenance, such favour is not general power of
appointment but if a power to use property for the comfort, welfare, or happiness
of the holder of the power is not considered limited by an ascertainable standard
ad therefore, constitutes a general power of appointment.
The value to be included in the gross estate shall be determined under the
following rules:
a. If the transfer was in the nature of a bona-fide sale for an adequate and
full consideration in money or money’s worth, no value shall be included
in the gross estate.
DECEDENT’S INTEREST
It also refers to the value of any interest in property or rights accrued in favor of
the decedent on or before his death which have been received only after his death
such as:
c. Accrued interest and rents on or before the time of death, but collected until
after death.
As a rule, the interest to be included as part of the gross estate must exist at the time
of the decedent’s death. It is not sufficient that the decedent at some time during his
life had an interest. It is not sufficient that an interest might be transferred to the
decedent’s estate after his death.
Proceeds of life insurance under policies taken out by the decedent upon his life shall
constitute part of the gross estate if the beneficiary is:
b. A third person (ex. person other than estate, executor, or administrator), and
the designation of the beneficiary is revocable.
If the premiums were paid partly with paraphernal and partly conjugal funds, the
proceeds are in like portion paraphernal in part and conjugal part.
Where the insured transfers a life insurance policy in contemplation of death, the
amount included in the gross estate is the face value of the policy and not the cash
surrender value.
4 Irrevocable No No
5 Silent No Yes
These refer to receivables left by the decedent but the court consequently found the
related debtor insolvent.
A claim against insolvent person must be reported as part of the gross estate in the full
amount of the receivable. The fact it is uncollectible in whole or in part will be recognized
as a deduction from the gross estate for uncollectible portion.
The amount received by the heirs from the decedent’s employer as a consequence of
the death of the decedent-employee shall be included in the gross estate of the
decedent. This amount is also allowed as a deduction from gross estate.
The following items refer to the amount received by the heirs which are not subject to any
tax under R.A.4917:
The retiring officials or employee has been in the service of the same
employer for at least 10 yrs. and not less than 50 yrs. at the time of his
retirement.
Refers to the properties, rights or transfers that are specifically declared by the law as FREE from
the burden of the estate tax.
As a rule, properties or transfers exempt from estate tax by law, are NOT considered in the
determination of the amount of the gross estate.
The transmission or delivery of the inheritance or legacy of the fiduciary heir or legatee to the
fideicommissary;
a. The transfers from fiduciary heir to the fedeicommissary
b. LEGACY – a gift or bequest by WILL of a person.
c. DEVISE – a TESTAMENTARY disposition of real estate.
d. LEGATEE – the person to whom a legacy in a will is given.
e. FIDUCIARY HEIR – the FIRST HEIR of the property.
f. FIDEICOMMISSARY – the SECOND HEIR whose relationship to the fiduciary
heir must be one degree of generation (a parent and a child)
The transmission from the first heir , legatee or done in favor of another beneficiary, in
accordance with the desire of the predecessor;
The second transfer as desired by the predecessor
There is only one transfer from the testator
All bequests, devise, legacies or transfers to social welfare, cultural, and charitable
institutions provided:
a. No part of the income of such institution inures to the benefit of any
individual
b. Not more than 30% of said bequests, devises, legacies or transfers shall
be used by the such institutions for administration purposes.
Bequests to be used actually, directly and exclusively for educational purposes.
ORDINARY DEDUCTIONS
Expenses, loses indebtedness and taxes (ELIT)
a. FUNERAL EXPENSES – the amount deductible shall be whichever is
the lowest among the following; the actual funeral expenses incurred, 5%
of gross estate, and the P200,000.
b. JUDICIAL EXPENSES – It includes those actually and necessarily
incurred during settlement of the state but not beyond six (6) months, or
the extension thereof for the filing of the estate tax return. Expenses not
essential the proper settlement of the estate but not incurred for the
individual benefit of the heirs legatees, or devisees are not allowed as
deductions.
c. CLAIMS AGAINST THE ESTATE – this represents personal obligation of
the deceased existing at the time of his death except unpaid funeral
expenses and unpaid medical expenses. The claims may arise out of
contract, tort or operation of law. The requisites for deductibility are the
following:
Must have been contracted in good faith and for an
adequate and full consideration in money or money’s worth;
The debt instrument must be duly notarized except loans
granted by financial institutions where notarization is not part
of the business practice/policy of the financial institution-
lender;
It must not have been condoned by the creditor;
The action to collect from the decedent must not have been
prescribed.
d. UNPAID MORTGAGES – upon the properly left by the decedent. The
requisites for deductibility are the following:
The mortgage indebtedness was contracted in good faith
and for an adequate and full consideration in money or
money’s worth; and
The fair market value of the property mortgaged without
deducting the mortgage indebtedness has been included
in the gross estate.
VANISHING RATES:
1 year 100%
5 years ** 0%
SPECIAL DEDUCTIONS
AMOUNTS RECEIVED BY HEIRS FROM EMPLOYER UNDER RA 4917 – Amounts
received by the heirs from the decedent’s employer as a consequence of the death of
the decedent-employee. Provided, that such amount is included in the gross estate of
the decedent.
P 200,00.00 Exempt
Family home(1/2) xx
Medical exp xx
RA 4917 xx
Standard deduction xx xx
Net taxable estate xx
PAYMENT OF TAX
TIME OF PAYMENT
The estate tax imposed by Section 84 shall be paid at the time the return is
filed by the executor, administrator or the heirs.
EXTENSION OF TIME
When the Commissioner finds that the payment on the due date of the estate tax
or of any part thereof would impose undue hardship upon the estate or any of the heirs,
he may extend the time for payment of such tax or any part thereof not to exceed five
(5) years, in case the estate is settled through the courts, or two (2) years in case the
estate is settled extrajudicially. In such case, the amount in respect of which the
extension is granted shall be paid on or before the date of the expiration of the period
of the extension, and the running of the Statute of Limitations for assessment as
provided in Section 203 of this Code shall be suspended for the period of any such
extension.
Where the taxes are assessed by reason of negligence, intentional disregard of
rules and regulations, or fraud on the part of the taxpayer, no extension will be granted by
the Commissioner.
If an extension is granted, the Commissioner may require the executor, or
administrator, or beneficiary, as the case may be, to furnish a bond in such amount, not
exceeding double the amount of the tax and with such sureties as the Commissioner
deems necessary, conditioned upon the payment of the said tax in accordance with the
terms of the extension.
Surcharges
SURCHARGE OF 25%:
There shall be imposed, in addition to the tax required o be paid. A penalty of surcharge
equivalent to 25% of the amount due, in any of the following:
a. Failure to file any tax return and pay the tax due thereon as required on the date
prescribed.
b. Unless otherwise authorized by the BIR Commissioner, filing a tax return with an
internal revenue officer other than those with whom the return is required to be
filed.
c. Failure to pay the deficiency tax within the time prescribed for its payment in the
notice of assessment and demand.
d. Failure to pay the full or part of the amount of tax shown on any tax return
required to be filed on the full amount of tax due for which no tax return ie
required to be filed on or before the date prescribed for its payments
SURCHARGE OF 50%:
There shall be imposed in addition to the tax required to be paid, a penalty and surcharge
equivalent to 50% of the amount due in any of the following cases:
c. In General – There shall be assessed and collected on any unpaid amount of tax
interest of 20% per annum or such higher rate as may be prescribed by rules and
regulation from the date prescribed for payment until the amount is fully paid.
DEFICIENCY INTEREST
Any deficiency in tax due, as the term I defined in the NIRC, shall be subject to the interest
therein prescribed, which interest shall assessed and collected from the date prescribed for its
payment until the full payment thereof.
DELINQUENCY INTEREST
There shall be assessed and collected on the unpaid amount of taxes interest at the
rate prescribed hereof until the amount is fully paid which interest shall form part of the tax.
INTEREST EXTENDED PAYMENT
There shall be assessed and collected interest at the rate herein above prescribed on
the tax or deficiency tax or any par thereof unpaid from the date of notice and demand until it
is paid in the following cases.
If the person elects to pay the estate tax on installment payments but fails to pay the
required tax to the payment date.
Where the commissioner has authorized a taxpayer an extension of time within which to
pay tax or a deficiency tax or any part thereof, but fails to pay said tax within the
prescribed extension periods.