BIR: 10-year jailtime for tax evading vloggers
According to the BIR, the classification of vloggers for tax purposes is
"self-employed" and they are subject to 12 percent value-added tax if annual
income is P3 million and more, eight percentage tax if less than the amount
and tax exempt if not more than P250,000.
From this press release, it can be inferred that BIR has a reasonable ground
to believe that the vloggers alluded to in the article have the intent to
evade the payment of taxes. This conclusion can be drawn from the fact that
BIR seems to be focusing on the fact of deletion of the channel. According to
the Manila Bulletin, "[T]he BIR said it will still run after the couple,
saying deleting the social media channel will not excuse them from paying
taxes." (Ramirez, 2021)
According to the reporting of Rappler, "[T]he JaMill page, at the time of its deletion, had 12.5 million followers, good for top 9 in the Philippines in terms of follower count. It had a total of 1.3 billion views spread across a total of 567 videos." (Rappler.com. August 2021. "Popular vlogger pair JaMill deletes YouTube channel." https://www.rappler.com/technology/internet-culture/popular-vlogger-pair-jamill-deletes-youtube-channel. Last accessed: August 24, 2021) Hence, it was estimated that, at best, the couple, at the time of channel deletion, could earn as much as Php70,000 per day.
If the BIR decides to press criminal charges against the couple, the basis may be tax evasion. According to the Supreme Court, "[T]ax evasion connotes the integration of three factors: (1) payment of tax less than legally due; (2) a state of mind being evil, in bad faith, willful, or deliberate and not accidental; and (3) unlawful course of action."[1]
Under Sections 254 and 255 of the NIRC, the government can file a criminal case for tax evasion against any taxpayer who willfully attempts in any manner to evade or defeat any tax imposed in the tax code or the payment thereof.[2]
Regarding the couple who deleted their YouTube channel, if it can be proved that no payment of tax has been made, the element of "defeating the payment of tax" would be established. The best proof contrary to this would be BIR documents showing payment. Secondly, the element of bad faith can be established from the fact that the couple immediately deleted their YouTube channel after government notice to the public that BIR would start cracking down on vloggers who earn via online platforms. Third and finally, the element of "unlawful course of action" can be deduced from the non-payment of tax itself or failure to file return.
The pertinent statutory provisions are:
SEC. 254. Attempt to Evade or Defeat Tax. - Any person who willfully attempts in any manner to evade or defeat any tax imposed under this Code or the payment thereof shall, in addition to other penalties provided by law, upon conviction thereof, be punished by a fine not less than Five hundred thousand pesos (P500,000) but not more than Ten million pesos (P10,000,000) and suffer imprisonment of not less than six (6) years but not more than Ten (10) years: Provided, That the conviction or acquittal obtained under this Section shall not be a bar to the filing of a civil suit for the collection of taxes.
SEC. 255. Failure to File Return, Supply Correct and Accurate Information, Pay Tax Withhold and Remit Tax and Refund Excess Taxes Withheld on Compensation. - Any person required under this Code or by rules and regulations promulgated thereunder to pay any tax, make a return, keep any record, or supply correct the accurate information, who willfully fails to pay such tax, make such return, keep such record, or supply correct and accurate information, or withhold or remit taxes withheld, or refund excess taxes withheld on compensation, at the time or times required by law or rules and regulations shall, in addition to other penalties provided by law, upon conviction thereof, be punished by a fine of not less than Ten thousand pesos (P10,000) and suffer imprisonment of not less than one (1) year but not more than ten (10) years.
Any person who attempts to make it appear for any reason that he or another has in fact filed a return or statement, or actually files a return or statement and subsequently withdraws the same return or statement after securing the official receiving seal or stamp of receipt of internal revenue office wherein the same was actually filed shall, upon conviction therefore, be punished by a fine of not less than Ten thousand pesos (P10,000) but not more than Twenty thousand pesos (P20,000) and suffer imprisonment of not less than one (1) year but not more than three (3) years.
[2] https://www.projectjurisprudence.com/2020/01/lim-gaw-jr-v-cir-case-digest-gr-no-222837.html.
