ITAD BIR Ruling No. 003-14

January 16, 2014 ITAD BIR RULING NO. 003-14 Article 10 (Dividends); Philippines-Japan tax treaty Panasonic Manufacturing Philippines Corporation Ortigas Avenue Extension Taytay, Rizal Attention: Marlon M. Molano Assistant Director Gentlemen : This refers to your tax treaty application ("TTRA") filed on April 15, 2013, requesting confirmation that dividends paid by Panasonic Manufacturing Philippines Corporation ("PMPC") to Panasonic Corporation-Japan ("Panasonic") are subject to income tax at the rate of 10 percent pursuant to the Convention between the Government of the Republic of the Philippines and the Government of Japan with respect to Taxes on Income ("Philippines-Japan tax treaty"), as amended by the 2009 Protocol. It is represented that Panasonic is a foreign corporation organized and existing under the laws of Japan. It is a resident thereof within the meaning of the Convention to avoid double taxation between the Philippines and Japan per certificate of status of taxable person issued on May 13, 2013 with business address at 1006 Oaza Kadoma, Kadoma City, Osaka, Japan. It is not registered as a corporation or a partnership in the Philippines per certification of non-registration issued by the Securities and Exchange Commission on April 23, 2013; and that, on the other hand, PMPC is a corporation duly organized and existing in accordance with the laws of the Republic of the Philippines with principal address at Ortigas Avenue Extension, Taytay, Rizal. It is represented that Panasonic is the registered owner of Three Hundred Thirty Seven Million Nine Hundred Ninety-Four Thousand Five Hundred Eighty-Two (337,994,582) common shares and 6 nominee shares as of April 12, 2013 constituting 79.96% of PMPC's issued and outstanding shares; that these shares were acquired in 1968 onwards, while the stockholdings of the other Japanese stockholders were qualifying shares for directorship acquired from Panasonic in various dates; that on March 21, 2013 PMPC's Board of Directors had adopted and approved a 10% cash dividend declaration in favor of all its stockholders as of April 12, 2013 payable on May 8, 2013; that Panasonic is the holder of the said shares during the period of six (6) months immediately preceding the date of payment of the dividends as declared by the Board of Directors; and that on May 8, 2013 PMPC through the Bank of Tokyo-Mitsubishi UFJ, Manila Branch paid the amount of US$739,145.01 to Panasonic through Sumitomo Mitsui Banking Corporation. acCTSE It is further represented, per sworn certification issued on April 4, 2013 by the Treasurer and Executive Director of PMPC that the issue subject of the above request is not under any investigation or on-going audit, administrative protest, claim for refund or issuance of tax credit certificate, collection proceedings, or a judicial appeal. In reply, please be informed that under Section 28 (B) (1) of the National Internal Revenue Code of 1997 ("Tax Code"), as amended, dividends paid to Panasonic are subject to income tax at the rate of 30 percent, thus: "SEC. 28. Rates of Income Tax on Foreign Corporations. xxx xxx xxx (B) Tax on Non-resident Foreign Corporation. (1) In General. Except as otherwise provided in this Code, a foreign corporation not engaged in trade or business in the Philippines shall pay a tax equal to thirty-five percent (35%) of the gross income received during each taxable year from all sources within the Philippines, such as interests, dividends . . . subject to tax under subparagraph 5(c) and (d) above: n Provided, That effective January 1, 2009, the rate of income tax shall be thirty percent (30%)." However, under Section 32 (B) (5) of the Tax Code, these dividends may be exempt from income tax or subject to a reduced rate to the extent required by any treaty obligation on the Philippines, thus: "SEC. 32. Gross Income. xxx xxx xxx (B) Exclusions from Gross Income. The following items shall not be included in gross income and shall be exempt from taxation under this Title: xxx xxx xxx (5) Income Exempt under Treaty. Income of any kind, to the extent required by any treaty obligation binding upon the Government of the Philippines." For this purpose, you invoke the Philippines-Japan tax treaty as amended. Paragraphs 1, 2, & 3 of Article 10 thereof provide: "Article 10 "(1) Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other Contracting State. TCEaDI (2) However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident, and according to the laws of that Contracting State, but if the recipient is the beneficial owner of the dividends the tax so charged shall not exceed: a) 10 per cent of the gross amount of the dividends if the beneficial owner is a company which holds directly at least 10 per cent either of the voting shares of the company paying the dividends or of the total shares issued by that company during the period of six months immediately preceding the date of payment of the dividends; b) 15 per cent of the gross amount of the dividends in all other cases. The provisions of this paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid. (3) Notwithstanding the provisions of paragraph 2, the amount of tax imposed by the Philippines on the dividends paid by a company, being a resident of the Philippines, registered with the Board of Investments and engaged in preferred pioneer areas of investment under the investment incentives laws of the Philippines to a resident of Japan, who is the beneficial owner of the dividends, shall not exceed 10 per cent of the gross amount of the dividends." Under paragraphs 2 and 3 of Article 10, dividends arising in the Philippines and paid to a resident of Japan may be taxed in the Philippines at a rate not to exceed (a) 10 percent if the company recipient of the dividends holds directly at least 10 percent of the voting shares or the total shares of the company paying the dividends during the period of six months immediately preceding the date of payment of the dividends; (b) 10 percent if the dividends are paid by a domestic company registered with the Board of Investments and engaged in preferred pioneer areas of investment under the investment incentives laws of the Philippines; and (c) 15 percent in all other cases. Accordingly, the dividend paid by PMPC to Panasonic is subject to income tax at the rate of ten percent (10%) of the gross amount thereof, pursuant to Article 10 (2) (a) of the Philippines-Japan tax treaty as (1) Panasonic holds 337,994,588 common shares constituting 79.96 percent of the total shares of PMPC, which is more than ten percent (10%) of the capital of the said company; and (2) Panasonic holds the said shares during the period of 6 months immediately preceding the date of payment of the dividends on May 8, 2013. This ruling is issued on the basis of the facts as represented. However, if upon investigation, it shall be disclosed that the actual facts are different, then this ruling shall be without force and effect insofar as the herein parties are concerned. STcAIa Very truly yours, (SGD.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue Footnotes n Note from the Publisher: The phrase "and (d) above" no longer appears in RA 9337, the law amending this provision.