The Philippines' claims under Article III of the GATT 1994
The Philippines also challenged a number of measures imposed on imported cigarettes under the Thai VAT regime. It argued that Thailand determined the tax base (MRSP) for VAT on imported cigarettes in such a way that the VAT on imported cigarettes is in excess of that imposed on like domestic cigarettes, in violation of the first sentence of Article III:2 of the GATT1994. The Philippines further claimed that imported cigarettes are also subject to VAT liability in excess of that applied to like domestic cigarettes, in violation of the first sentence of Article III:2, as the VAT exemption is only given to domestic cigarette resellers. According to the Philippines, the excessive tax liability imposed on the imported cigarette resellers also results in additional administrative requirements for these resellers.
Thailand argued that in deciding the tax base for VAT, it had applied a general methodology in the same manner to both imported and domestic cigarettes. Further, under Thai law, resellers of domestic cigarettes are exempt from a VAT liability and the related administrative requirements. Thailand argued that this exemption given only to resellers of domestic cigarettes did not result in an excess tax as resellers of imported cigarettes receive tax credits for the potential liabilities.
In the specific instances that were at issue in this case, the Panel concluded that Thai Excise had deviated from its general methodology in determining the tax base for VAT for imported cigarettes, while at the same time applying this methodology to domestic cigarettes. This resulted in excess taxation for imported cigarettes in a manner contrary to Article III:2, first sentence of the GATT 1994. Moreover, given the strict standard under Article III:2, first sentence of the GATT 1994, the Panel found that even the mere possibility of imported cigarettes being subject to an internal tax in excess of that which is applied to domestic cigarettes was inconsistent with Thailand's obligations under Article III:2, first sentence. The Panel found therefore that these specific aspects of the Thai VAT regime violated Thailand's obligations under Articles III:2 and III:4 of the GATT 1994.