Published — June 22, 2017
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
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The State recognizes that thriving businesses are indispensable to a healthy economy. As businesses succeed in their respective domains, more job opportunities are created, and more investors are attracted. This leads to a more robust ground for fiscal growth, which makes life more prosperous for both the country and its citizens. Therefore, in order to encourage those who have entrepreneurial inclinations who only have relatively small available resources to start an enterprise of their own, R.A. No. 9178, also known as the Barangay Micro Business Enterprise (“BMBE”) Act of 2002, was passed.
Many of our country’s micro businesses are in the informal sector, and the BMBE Law seeks to integrate them into the mainstream of economy. Under the said law, a Barangay Micro Business is defined as “any business entity or enterprise engaged in the production, processing or manufacturing of products or commodities, including agro-processing, trading and services, whose total assets including those arising from loans but exclusive of the land on which the particular business entity’s office, plant and equipment are situated, shall not be more than Three Million Pesos (P3,000,000.00).”
Most entrepreneurs in the informal sector who operate micro enterprises would not bother to go out of their way just to formalize their businesses through registration. However, the problem lies in the fact that even if an entrepreneur becomes very successful, if his business is not registered, then his enterprise does not exist in the eyes of the law. For being legally “inexistent”, the business cannot enjoy certain legal rights and protections such the right to own a trademark, among others. Many financial institutions also deal only with registered businesses, making it easier for those who are registered to avail of loans and other financial assistance that may prove valuable in running an enterprise, especially for start-up businesses.
In encouraging micro enterprises to formalize their businesses under the BMBE Law, certain benefits are granted by law to BMBEs, such as:
(1) Exemption from taxes on income arising from the operations of the enterprise. The local government units are likewise encouraged to either reduce the amount of local taxes, fees and charges, or to exempt BMBEs from such;
(2) Exemption from the coverage of the Minimum Wage Law. BMBEs, however, should still provide social security and health care benefits to their employees;
(3) Priority to a special credit window set up specifically for the financing requirements of BMBEs by certain financial institutions such as the Land Bank of the Philippines, Development Bank of the Philippines, Small Business Guarantee and Finance Corporation, People’s Credit and Finance Corporation and the Quedan and Rural Credit Guaranty Corporation. Even the Government Service Insurance System (“GSIS”) and the Social Security System (“SSS”) are likewise required by law to set up such special credit window to serve the financing needs of its respective members who wish to set up BMBEs.
(4) Technology transfer, production and management training, and marketing assistance programs for BMBE beneficiaries.
All the benefits mentioned may be availed of only by business enterprises that have been issued a Certificate of Authority, authorizing them to operate as BMBE. This, therefore, brings us to the question: How do we register our enterprise as BMBE?
Based on the guidelines issued by the Department of Trade and Industry (DAO No. 01-03) and the Department of Finance (D.O. No. 17-04), any person, cooperative or association owning an enterprise that fits the definition of a BMBE may register for the first time, or renew its registration, with the Office of the Treasurer of the city or municipality where the business is located. The Local Government Unit where the application was filed shall issue the Certificate of Authority, which shall be valid for 2 years (and may be renewed, which shall be valid for another 2 years for every renewal).
The law requires that applications shall be processed within 15 working days upon submission of complete documents. In the event that the application was not acted upon after the lapse of said 15-day processing period, the business shall be deemed registered.
Though BMBEs are exempt from the Minimum Wage Law, such exemption shall be applied only with respect to new employees hired after the business is registered as a BMBE. Existing employees at the time the Certificate of Authority was issued shall continue to receive their wages, allowances and other benefits, pursuant to the provisions of the Labor Code on non-diminution of benefits.
Exemption from the coverage of the Minimum Wage Law is automatic for BMBEs. However, exemption from income tax may be availed of only upon registration as BMBE with the Bureau of Internal Revenue (“BIR”), Revenue District Office having jurisdiction over the territory where the principal place of business is located. For purposes of BIR registration, the following documents shall be submitted:
(1) Copy of the BMBE’s Certificate of Authority;
(2) Sworn Statement of Assets of the BMBE, and/or its affiliates, supported by pertinent documents;
(3) Certified list of branches, sales outlets, places of production, warehouses and storage facilities;
(4) Certified list of affiliates;
(5) Latest audited Financial Statement or Account Information Form, or its equivalent.
Once registered with the BIR, exemption from income tax shall be granted. Tax-exempt BMBEs, however, should still submit an Annual Information Return in lieu of an Income Tax Return.
Tax-exempt BMBEs must also be aware that their exemption from income tax may be revoked on any of the following grounds:
(1) Transfer of place of business;
(2) Value of total assets exceeds P3,000,000.00;
(3) Voluntary surrender of the Certificate of Authority;
(4) Death of the registered individual owner of the BMBE; violation or non-compliance with the provisions of the BMBE Law;
(5) Merger or consolidation with an entity not eligible to be a BMBE;
(6) Sale or transfer of the BMBE (if it is a sole proprietorship) without prejudice to the transferee applying for registration;
(7) Submission of fake or falsified documents;
(8) Retirement from business, or cessation/suspension of operations for one year; and
(9) Making false, or omitting required declarations or statements.
Since it is the policy of the State to hasten the country’s economic development, the BMBE Law had been passed to encourage the formation and growth of BMBEs, and integrate those in the informal sector with the mainstream economy by rationalizing bureaucratic restrictions. Through the active intervention of the government, especially in the local level, and through the granting of incentives and benefits to generate much-needed employment, the proliferation of BMBEs may hopefully help in the alleviation of poverty.
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding the legal aspects of establishing micro businesses, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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Many kudos for sharing!
This is incredibly captivating, however, this is definitely very important that will computer mouse click on the interconnection:
Is BMBE EXEMPTED IN Is
13th month pay, separation pay, sick leave AND holiday pay atty?
Atty,
Ilang percent po ang OT pay ng empleyado under BMBE?
Atty,
Pwede po bang makahingi ng sample format ng employment contract para sa mga nagtatrabaho sa Micro Business.
Salamat po.
Hi po Atty.,
Salaried employee po ako who regularly pay my taxes by substituted filing through my employer. I want to start a sole proprietorship sana, will my being a salaried personnel preclude me po to register as a BMBE? (Presuming the proposed business can meet all the requirements sa asset and number of employees)
Further, if pwede ko naman iregister ang business as BMBE, how do I file my taxes po? Do I need to consolidate my compensation income and my income arising from operating a BMBE kahit na income-tax exempt yung income ng BMBE? (Presuming my taxes are correctly withheld by my employer and wala na akong other source of income aside from the 2?)
Good day po Atty…ung company pong pinapasukan ko..wala pong kinakaltas na SSS benefits at philhealth..with BMEB Certificate po..less than ten employees…wala po b silang na violate na law..kase wala po kming benefits na nkukuha…mandatory po b ung mga benefits para sa employee.? Tnx po
Good day Sir Is BMBE affect the employees who is already in 10 years tenure in the business?
If ever the business will be close what would be the rights of the employees? I will appreciate your reply.
Dear Catherine carlos,
BMBEs are exempt by law from the minimum wage requirements, but not as far as other labor standards are concerned. Thus, except from receiving minimum wage rates, employees rights in BMBEs are the same as those in other establishments. Therefore, once the business closes, you will be entitled to separation pay equivalent to 1/2 month salary for every year of service (unless the closure of the business is due to financial losses, in which case you will not be entitled to separation pay despite having served for 10 years already).
-Atty. Arjay
Good day Atty. Arjay
Thank you for you advices, they are very helpful in many ways. Somehow, i felt something is wrong with the findings of the inspector. I have already advised my friend with regards to signing in the notice of results. Thanks again Atty. God bless you and your family…
good day sir/madam,
i have a friend who is also a bmbes, with regards to the exemption to minimum wage, she encountered a dole inspector, who allowed her to be exempted from the payment of minimum wage to her employees, but insisted that my friend should pay the employees with regards to overtime pays, holiday pays, 13th mo. pays based on the minimum wage. Is the dole inspector right on this? example : my friend pay an employee 200.00 daily (the daily minimum wage being 280.00). My friend based the OT pays, holiday pays, 13th mo. pay on 200.00. The dole inspector insisted that it should be based on 280.00. Which is right? please help me out sir/madam…Thanks, God bless…
Dear Jensen Allen Co,
The DOLE inspector would not have basis for insisting that the overtime, holiday pay and 13th month pay shall be based on the minimum wage. It is so because the said benefits are based on the regular/basic wage, which is not necessarily the minimum, especially for exempt establishments. Your friend should have contested the inspector’s findings. Instead of readily signing his conforme on the Notice of Results, he should have written the words “with reservations” or “under protest” when he signed it.
-Atty. Arjay