Clarification on BIR Ruling No. 020-2001 Relative to Proposed Issuance of 10-Year Coupon Bonds

August 16, 2001 BIR RULING NO. 035-01 BIR Ruling No. 020-2001 Hon . Eduardo Sergio G . Edeza Treasurer of the Philippines Bureau of the Treasury Intramuros, Manila S i r : This refers to your letter dated August 8, 2001 seeking further clarification on BIR Ruling No. 020-2001 dated May 31, 2001 addressed to Caucus of Development-NGO ("CODE-NGO") Network relative to its proposed issuance of 10-year coupon bonds a k.a. PEACe Bonds. The following is our clarification on the matter taking solely into account the particular features of this proposed bond issuance: I. In connection with your query as to the meaning of the word "public", particularly on the interpretation of the phrase "at any one time", Section 22(Y) of the 1997 Tax Code defines the term "public" in relation to "deposit substitutes", as "borrowing from twenty (20) or more individual or corporate lenders at any one time". It should be noted that at the time of issuance or origination of the PEACe Bonds, there is no borrowing from the public, since the bonds are-being issued only to one entity, that is, RCBC. It has been the practice of the BSP that debt instruments and certificates are being issued only to banks and/or financial institutions. The required issuance to more than 20 individual or corporate lenders in order that the transaction be considered a borrowing from the 'public' is not present in the instant case. You also wish to know whether the phrase 'at any one time' in respect to borrowing from the 'public' may refer to single borrowing only, e.g., time of origination only, or one series or tranch, i.e., sale to secondary market; and that in any case, whether the number of would-be holders shall be the factor in determining whether or not the bonds or certificates of indebtedness are to be considered "deposit substitutes". In this particular instance, the phrase 'at any one time' covers only the origination or original issuance of the bonds regardless of whether sale or trading is made in the secondary market. Thus, in the case of PEACe Bonds, the determining factor in ascertaining whether such bonds are 'deposit substitutes', is the fact of their original issuance to a single entity, RCBC. The flowchart attached to your letter shows that RCBC will sell the bonds to CODE-NGO, which will then sell bonds to RCBC Capital as underwriter. In this regard, it should be noted that CODE-NGO cannot acquire the bonds directly, not being an accredited government securities dealer, hence, the original purchase by RCBC, and subsequent sale of the same bonds to CODE-NGO. RCBC Capital, on the other hand, purchases the bonds for its own account, and not for the account, or as agent of, any other buyer. Under these circumstances, it is clear that the bonds are issued to a single entity, whether such entity be RCBC, CODE-NGO or RCBC Capital. In this regard, a representation or warranty should be made to the effect that the bonds are acquired upon their original issuance by the original purchaser thereof, for and on its own behalf, or on behalf of a single purchaser only, and in the latter case, that the purchaser is acquiring such bonds for its own account and not for the account of other entities. IaTSED II. With respect to the second issue you raised, we wish to advise you that Section 32(B)(7)(g) of the 1997 Tax Code exempts from income tax "(G)ains realized from the sale or exchange or retirement" of the bonds with maturity of more than 5 years. In this particular case, the term "gain" refers to the gain, if any, from secondary trading, which is the difference between the selling price of the bonds in the secondary market and the price at which such bonds were purchased by the seller. The term "gain" likewise includes the gain (that is, the difference between the proceeds from the retirement of the bonds and the price at which such last holder acquired the bonds) realized by the last holder of the bonds when such bonds are surrendered for retirement upon their maturity. This ruling is being issued on the basis of the facts as represented. However, if upon investigation, it shall be discovered that the facts are different, then this ruling shall be considered null and void. Very truly yours, (SGD.) REN G. BAEZ Commissioner of Internal Revenue