BIR Ruling No. 427-12

June 25, 2012 BIR RULING NO. 427-12 Sec. 28 (B) (5) (b); 111-88; 057-12; 368-11 CE Casecnan II, Inc. 24th Floor, 6750 Ayala Avenue Makati City Attention: Ms. Trinity S. Gatuz Director Gentlemen : This refers to your letter dated September 1, 2011 stating that CE Casecnan II, Inc. (CE II) is a corporation organized and existing under the laws of the Philippines; that the Company is formed on January 7, 2003 primarily to acquire, hold, own and use for investment, or otherwise, sell or dispose of properties of every kind and description and whenever situated, as to the extent permitted by law; that on the other hand, CE Casecnan Ltd. (CEL) is a company organized and existing under the laws of Bermuda with address at Clarendon House, 2 Church Street, Hamilton, HM 11 Bermuda; that it is an exempt company as certified by the Registrar of Companies in its August 15, 1994 Certificate of Incorporation pursuant to section 14 of the Bermuda Companies Act of 1981; that it owns 99.99% of the total issued and outstanding shares of stock of CE II; that CEL is a non-resident company as evidenced by a Certificate of Non-Registration issued by the Securities and Exchange Commission (SEC) dated April 8, 2011; that pursuant to its internal corporate policies, CE II regularly declares dividends to its stockholders; that the remittance of dividends by CE II and its receipt by CEL is therefore a recurring transaction between the companies; that on September 1, 2011, CE II declared dividends to CEL as evidenced by a resolution of the Board of Directors authorizing the same, to be paid out no later than September 30, 2011; and that in a Certification dated September 28, 2010, from the Office of the Tax Commissioner, Ministry of Finance, Government of Bermuda, Joelene Lindsay, Senior Tax Auditor, declared that the Bermuda is not an income tax jurisdiction, as such persons residing in Bermuda are not subject to income tax. In support of its request, you have submitted the following documents, to wit: 1. Original Consularized Certificate of Incorporation issued by the Registrar of Companies in Bermuda certifying CEL as an exempt company pursuant to section 14 of the Companies Act of 1981 and the Exempted Undertaking Tax Protection Act of 1966 dated August 15, 1994; 2. Certificate of Compliance of CEL issued by the Registrar of Companies in Bermuda dated September 9, 2010; 3. Original Consularized Assurance issued by the Minister of Finance of Bermuda to CEL that imposition of taxes shall not be applicable to CEL under the Exempted Undertakings Tax Protection Act dated November 29, 1994; 4. Original Consularized Letter from the Office of the Tax Commissioner advising that Bermuda does not impose income tax; 5. Original Certificate of Non-registration of CEL issued by the SEC; 6. Original Board Resolution of CE II dated September 1, 2011 declaring the distribution of dividends to its stockholders, which includes the share of CEL; 7. Special Power of Attorney (SPA) authorizing CE II to prepare and file this request for ruling on behalf of CEL and SPA authorizing Trinity S. Gatuz to file this request for ruling for CE II; 8. Copy of Certificate of Incorporation, Articles of Incorporation and By-Laws of CE II; and 9. Copy of BIR Certificate of Registration of CE II. Based on the foregoing representations, you now request confirmation of your opinion that the dividends to be remitted by CE II to CEL are subject to the 15% final withholding tax pursuant to Section 28 (B) (5) (b) of the Tax Code of 1997, as amended. In reply thereto, please be informed that Section 28 (B) (5) (b) of the Tax Code of 1997 provides that "SEC. 28. Rates of Income Tax on Foreign Corporations. xxx xxx xxx (B) Tax on Nonresident Foreign Corporation. xxx xxx xxx (5) Tax on Certain Incomes Received by a Nonresident Foreign Corporation. xxx xxx xxx (b) Intercorporate Dividends. A final withholding tax the rate of fifteen percent (15%) is hereby imposed on the amount of cash and/or property dividends received from a domestic corporation, which shall be collected and paid as provided in Section 57 (A) of this Code, subject to the condition that the country in which the non-resident foreign corporation is domiciled, shall allow a credit against the tax due from the non-resident foreign corporation taxes deemed to have been paid in the Philippines equivalent to twenty percent (20%), which represents the difference between the regular income tax of thirty-five percent (35%) and the fifteen percent (15%) tax on dividends as provided in this subparagraph: Provided, that effective January 1, 2009 the credit against the tax due shall be equivalent to fifteen percent (15%), which represents the difference between the regular income tax of thirty percent (30%) and the fifteen percent (15%) tax on dividends;" Prescinding from the above-cited provisions, it is undisputed that a final withholding tax at the lower rate of fifteen percent (15%) is imposed on cash dividends received by a non-resident foreign corporation from a domestic corporation, subject to the condition that the country in which the non-resident foreign corporation is domiciled shall allow a credit against the tax due from the non-resident foreign corporation taxes deemed to have been paid in the Philippines equivalent to fifteen percent (15%). In stressing the rationale of the above principle, the Supreme Court in the case of Commissioner of Internal Revenue vs. Procter & Gamble Philippine Manufacturing Corporation, 204 SCRA 377, and later reiterated in Singapore Telecom International Pte. Ltd. vs. Commissioner of Internal Revenue, CTA Case No. 7406, that the preferential tax treatment of 15% of the final withholding tax on dividends received by a non-resident foreign corporation from a domestic corporation applies if the domiciliary law of the non-resident foreign corporation allows [a similar] tax credit for the taxes deemed paid in the Philippines. In the instant case, Bermuda does not impose any income tax as held in BIR Ruling No. 111-88 dated March 18, 1988. The Supreme Court, in the case of Commissioner of Internal Revenue vs. Wander Philippines, Inc., has ruled that "While it may be true that claims for refund are construed strictly against the claimant, nevertheless, the fact that Switzerland did not impose any tax on the dividends received . . . from the Philippines should be considered as a full satisfaction of the given condition. For, as aptly stated by respondent court, to deny private respondent the privilege to withhold only 15% tax provided under Presidential Decree No. 369 amending Section 24 (b) (1) of the Tax Code, would run counter to the very spirit and intent of said law and definitely will adversely affect foreign corporation's interest here and discourage them from investing capital in our country." Thus, the exemption from taxes of the dividends received by the country of domicile of the non-resident corporate stockholder is sufficient for the applicability of the 15% tax rate. In this case, CEL has received a written undertaking from the Minister of Finance of Bermuda under The Exempted Undertaking Tax Protection Act of 1966 that, in the event that any legislation is enacted in Bermuda imposing any tax computed on profits, income, gain or appreciation on any capital assets, or any tax in the nature of estate duty or inheritance tax, such tax will not be applicable to CEL until March 26, 2016. Moreover, the Ministry of Finance of the Government of Bermuda issued a Certification that Bermuda is not an income tax jurisdiction and persons residing therein are not subject to income tax. SUCH BEING THE CASE, this Office holds that dividends to be paid by CE II to a non-resident foreign corporation domiciled in Bermuda, CEL, are subject to the 15% final withholding tax as prescribed in Section 28 (B) (5) (b) of the Tax Code of 1997. It must be emphasized, however, that in line with Revenue Memorandum Circular (RMC) No. 80-91, the preferential tax rate of 15% imposed under the said Section 28 (B) (5) (b) may be availed of only when the following documentation requirements are punctiliously complied with within a reasonable time: a) to show that the dividends received by CEL from CE II were not among the items considered in arriving at the income tax due from CEL; b) to present the income tax return of CEL, for the taxable year when the subject dividends were received; and c) to submit any authenticated document showing that the Government of Bermuda did not impose any tax on the subject dividends. Otherwise, the general tax rate of 35% shall be applied. (BIR Ruling No. 368-11 dated October 5, 2011) . 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.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue