R.G. Manabat & Co.

December 9, 2019 BIR RULING NO. 766-19 Sec. 28 (B) (5) (b); BIR Ruling No. 467-14; BIR Ruling No. 428-14; BIR Ruling No. 378-13; BIR Ruling No. 374-13; BIR Ruling No. 304-11 R.G. Manabat & Co. The KMPG Center, 9/F 6787 Ayala Avenue, Makati City 1226 Attention: AAA _______________ Gentlemen : This refers to your letter dated 27 August 2015, requesting on behalf of LAPRAIRIE GROUP CONTRACTORS INTERNATIONAL LTD. (LGCI) ,for confirmation that cash dividends received by LGCI from CE CASECNAN WATER AND ENERGY COMPANY, INC. (CECWEC) are subject to the fifteen percent (15%) preferential final withholding tax rate under Section 28 (B) (5) (b) of the Tax Code of 1997, as amended, otherwise known as "tax sparing credit." It is represented that LGCI is a non-resident foreign corporation organized and existing under the laws of Barbados with registered business address at 2nd Floor, Building 2, Chelston Park, Collymore Rock, St. Michael, Barbados; that LGCI is not registered with the Securities and Exchange Commission (SEC) as a foreign corporation engaged in trade or business in the Philippines as evidenced by a Certificate of Non-Registration issued by the latter on 5 February 2015; that LGCI holds a total of 115,074 common shares, with par value of Php_____ each or a total Php__________ in CECWEC, a domestic corporation with business address at 24th Floor, 6750 Building, Ayala Avenue, Makati City, Philippines; that LGCI has an equivalent to fifteen percent (15%) shareholding in CECWEC; that in a special meeting of the Board of Directors of CECWEC held on 13 August 2015, the Board resolved that of the cash dividends in the amount of USD _______________ to be distributed, the equivalent of 15% thereof or USD _______________ will be distributed and paid to LGCI on or before 31 August 2015; and that the Department of Inland Revenue of the Government of Barbados has issued a certification confirming that the dividends received by LGCI from the non-resident Philippine Company will not be included in the assessable income of the Company. HEITAD Based on the foregoing representations, you now request confirmation that cash dividends to be received by LGCI from CECWEC are subject to the fifteen percent (15%) preferential final withholding tax rate prescribed in 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, as amended provides that "SEC. 28. Rates of Income Tax on Foreign Corporation. xxx xxx xxx (B) Tax on Nonresident Foreign Corporation. xxx xxx xxx (b) Inter-corporate Dividends. A final withholding tax at 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 conditions 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." xxx xxx xxx In stressing the rationale of the above provisions, the Supreme Court in the case of Commissioner of Internal Revenue v. Wander Philippines, Inc. (G.R. No. L-68375 dated April 15, 1988) ,ruled that " ...since the Swiss Government does not impose any tax on the dividends to be received by the said corporation in the Philippines, the condition imposed under the abovementioned section is satisfied. Accordingly, the withholding tax rate of fifteen percent (15%) is hereby affirmed." Thus in BIR Ruling No. 304-11 dated August 15, 2011 ,this Office ruled that: "In this case, the Department of Inland Revenue of the Government of Barbados has issued a Certification that LGCI will not be subject to tax on dividends from its non-resident affiliate in accordance with the provisions of the Income Tax Act Cap 73 Section 9 (1) (l) (iii),which stresses that: "Calculation of Assessable Income: Amounts Not Included 9.(1) In calculating the assessable income of a person for an income year, the following amounts shall not be included namely; (a) x x x xxx xxx xxx (l) (i) x x x (ii) x x x (iii) in respect of income year 2007 and subsequent income years, amounts received by a resident company registered in Barbados as dividends, other than preference dividends from a non-resident company when the Barbados resident is a shareholder representing at least ten percent (10%) of the capital of the non-resident company and such shareholding is not held solely for the purpose of portfolio investments." Hence, considering that LGCI holds more than ten percent (10%) of the capital of the non-resident company, the dividends received by it, as a company registered in Barbados, shall not be included in calculating the assessable income under the Income Tax Act of Barbados. ATICcS Based on the foregoing and in view of the fact that LGCI has been certified by the Barbadian Department of Inland Revenue that it will not be subject to tax on the cash dividends received from its non-resident affiliate in accordance with the provisions of the Income Tax Act Cap 73 Section 9 (1) (l) (iii),this Office hereby confirms your opinion that cash dividends in the amount of USD _______________ declared by CECWEC on 13 August 2015 to be received by LGCI on or before 31 August 2015 are subject to fifteen percent (15%) final withholding tax imposed under Section 28 (B) (5) (b) of the Tax Code of 1997, as amended. (BIR Ruling No. 378-13 dated October 11, 2013; BIR Ruling No. 374-13 dated October 10, 2013; BIR Ruling No. 304-11 dated August 15, 2011; BIR Ruling No. 428-2014 dated October 27, 2014; and BIR Ruling No. 467-2014 dated November 19, 2014) 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.) CAESAR R. DULAY Commissioner of Internal Revenue