BIR Ruling [DA-432-05]

October 20, 2005 BIR RULING [DA-432-05] SGV & Co . 6760 Ayala Avenue 1226 Makati City Attention: Atty. Luis Jose P. Ferrer Gentlemen : This refers to your letter dated May 24, 2005 requesting for confirmation of your opinion that the infusion by Tupperware Asia Pacific Holdings Pte. Ltd. ("TAPH") of additional paid-in capital ("APIC") into Dart (Philippines), Inc. ("DPI"), in the amount of One Hundred Forty Million Five Hundred and Fifty Thousand Pesos (Php140,550,000.00), without the issuance of additional shares of stock, is deemed a capital investment, which is not included within the purview of the term "taxable income" under the 1997 Tax Code, as amended, and is not subject to income, donor's and documentary stamp taxes. It is represented that DPI is a corporation organized and existing under the laws of the Philippines with principal office address at 19th Floor Multinational Bancorporation Building, 6805 Ayala Avenue, Makati City; that DPI is primarily engaged in the business of manufacturing and selling (locally or for export) of plastic wares, kitchen and household effects and other products allied or related thereto; that TAPH is a non-resident corporation organized and existing under the laws of Mauritius with principal office address at c/o Multiconsult Ltd. Les Jamalacs Building, Vieux Conseil St., Port-Lois, Mauritius; that TAPH owns 99.99% of the shares of stocks of DPI; that, on November 18, 2004, DPI's board of directors, through a resolution, called for the infusion of additional capital by its stockholder in order to augment the working capital and cash requirements of the Company; that pursuant to this cash call by DPI, TAPH agreed to infuse additional cash in the amount of US$2,500,000.00 equivalent to Php140,550,000.00; that DPI has an authorized capital of 1,000,000 common shares of stock with a par value of Php100, out of which 62,500 shares have been subscribed and paid-up; that notwithstanding the additional capital contribution by TAPH, the authorized capital stock ("ACS") of DPI would not be increased and neither would the Company issue additional shares of stock from the un-issued portion of its ACS; that there will be no increase in the outstanding shares of stock held by TAPH in DPI as a result of the former's payment of additional premium for shares already issued to it; that, on April 11, 2005, the Company obtained from the Securities and Exchange Commission ("SEC") a Certificate of Approval converting the advances extended by TAPH in the amount of Php140,550,000.00 (equivalent to US$2,500,000.00) into Additional Paid-In Capital ("APIC") of DPI. DCScaT In reply thereto, please be informed as follows: 1) The infusion by Tupperware Asia Pacific Holdings Pte. Ltd. ("TAPH") of additional paid-in capital ("APIC") into DPI, in the amount of One Hundred Forty Million Five Hundred and Fifty Thousand Pesos (Php140,550,000.00), without the issuance of additional shares of stock, is deemed a capital investment, which is not included within the purview of the term "taxable income" under the 1997 Tax Code, as amended, therefore, not subject to income tax ( BIR Ruling Nos. DA-560-04 dated November 8, 2004, DA-046-04 dated February 5, 2004, DA-117-03 dated April 14, 2003, DA-221-02 dated November 25, 2002, 127-89 dated June 13, 1989, 586-88 dated December 19, 198, and 270-87 dated September 8, 1987 citing Sec. 56, Rev. Regs. No. 2, otherwise known as the "Income Tax Regulations "); 2) The remittance by TAPH to DPI of the amount of Php140,550,000.00 intended as an additional capital contribution by the former, to augment the working capital and cash requirements of DPI, and without the issuance of shares of stock, is not subject to donor's tax, there being no intention to donate on the part of TAPH and that the transaction is effected purely for business reasons ( BIR Ruling No. DA-001-03 dated January 7, 2003 ); and lastly, 3) Considering that the cash contribution by TAPH to DPI will not involve the issuance of shares of stock by DPI, the same shall not be subject to DST under Section 174 of the 1997 Tax Code, as amended ( BIR Ruling Nos. DA-046-04 dated February 5, 2004; DA-139-04 dated March 26, 2004; DA-046-04 dated February 5, 2004; DA-221-02 dated November 25, 2002 ). This ruling is being issued on the basis of the foregoing facts as represented. However, if upon investigation, it will be disclosed that the facts are different, then this ruling shall be considered null and void. Very truly yours, (SGD.) JOSE MARIO C. BUAG OIC, Commissioner of Internal Revenue