DOF studying Mighty Corp’s offer to settle P25-B tax liability

July 12, 2017 - 6:07 PM
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File photo from the DOF shows boxes of cigarettes stored in one of Mighty Corp.’s warehouses in the Philippines. Fake Mighty cigarettes, unearthed in recent NBI raids, are eating into the government's revenues and the bottomline of the real Mighty cigarette makers, Japan Tobacco Inc. Philippines. FILE PHOTO FROM D.O.F.

MANILA, Philippines — The Department of Finance (DOF) is looking at the offer of cigarette manufacturer Mighty Corporation to settle its tax liabilities worth P25 billion.

“We are studying the offer,” DOF Secretary Carlos Dominguez III said in response to the settlement proposal sent by the company to Bureau of Internal Revenue (BIR) Commissioner Caesar Dulay dated July 10, 2017.

The letter signed by Mighty president and director Oscar Barrientos, said that it was confirming “the Company’s willingness to settle all such excise and tax issues and respectfully offer as settlement of the Company’s shareholders’ and its officers’ liability in this regard the total sum of P25 billion.”

The amount would cover the deficiency excise taxes and internal revenue taxes of the company and its shareholders.

Dominguez pointed out, however, that the settlement offer tax deficiencies was separate from the criminal charges that might be filed in court by the BIR against the company.

The three tax complaints filed by the BIR against Mighty Corp. are now pending before the Department of Justice. These cover the firm’s non-payment of excise taxes due its cigarette products and use of counterfeit tax stamps on its cigarette packs, which correspond to excise taxes valued at P37.88 billion.

In his letter, Barrientos said the settlement sum would be funded by means of an “interim loan” from JT International Philippines (JTI) and the sale by Mighty and its affiliates of its manufacturing and distribution business and assets, along with the intellectual property rights associated with these assets, “including those owned by the company, Wong Chu King Holdings Inc., and other affiliates to JTI or any of its affiliates for a total purchase price of P45 billion exclusive of VAT.”

Based on its settlement offer, the total amount that Mighty Corp. would remit to the government include the following:

1) P3.5 billion in deficiency excise taxes on its cigarette products that are now the subject of the three tax cases pending before the DOJ; and,

2) P21.5 billion representing the liabilities of the company and its shareholders, as well as the company officers for all internal revenue taxes, including income tax from 2010 to 2016 and the tax period up to the closing of the proposed transaction with JTI, and all transaction taxes related to the agreement with JTI.

“The initial payment of P3.5 billion will be paid by the company on the company’s behalf on or before July 20, 2017. A binding Memorandum of Agreement in relation to the Proposed Transaction (with JTI) will be concluded shortly (and prior to July 20, 2017) subject to finalizing terms with JTI and JTI completing its due diligence,” the letter said.

The balance of P21.5 billion will be paid on or after the closing of the proposed deal with JTI, it added.

Barrientos also requested the BIR for a reinvestigation of its pending criminal complaints before the DOJ following the initial payment of the P3.5 billion, along with a certificate of payment.

“We also respectfully request the BIR to issue to the Company and its shareholders and officers following closing of the proposed transaction (with JTI) and the payment of the P21.5 billion the relevant Certificate of Availment of Compromise, a final tax assessment for all the Company’s excise and other tax issues described above, and relevant tax clearances to the Company, its shareholders and officers,” the letter said.

Barrientos committed to retire the operations of Mighty Corp. following the conclusion of its deal with JTI.

Attached to the letter was a certification issued by Ernesto Andrade, Mighty’s corporate secretary, showing that the settlement offer was authorized by Mighty’s Board of Directors and designating Barrientos as the authorized representative of the tobacco manufacturing firm.