ITAD BIR Ruling No. 009-14

January 17, 2014 ITAD BIR RULING NO. 009-14 Article 10 (Dividends), Philippines-Japan tax treaty Fujitsu Ten Solutions Philippines, Inc. 24th-25th Floors Hanston Square Bldg. #17 San Miguel Avenue Ortigas Center Pasig City 1605 Attention: Vernon Valones Deputy Manager-Corporate Services Gentlemen : This refers to your tax treaty application ("TTRA") filed on September 11, 2013, requesting confirmation that dividends paid by Fujitsu Ten Solutions Philippines, Inc. ("Fujitsu Philippines") to Fujitsu Ten, Ltd. ("Fujitsu Japan") 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 Fujitsu Japan is a foreign corporation organized and existing under the laws of Japan; that it is a resident thereof within the meaning of the Convention to avoid double taxation between the Philippines and Japan per certificate of residence issued on June 4, 2013 with business address at 2-28 Goshi Dori, 1 Chome, Hyogo-Ku, Kobe, Japan; that 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 August 30, 2013; and that, on the other hand, Fujitsu Philippines is a corporation duly organized and existing in accordance with the laws of the Republic of the Philippines with principal address at 24th-25th Floor Hanston Square Bldg., #17 San Miguel Avenue, Ortigas Center, Pasig City. It is also represented that Fujitsu Japan is the registered owner of Two Hundred Forty Thousand (240,000) common shares as of March 31, 2013 acquired on August 10, 1999 by original subscription, constituting 80% of Fujitsu Philippines total prescribed and paid up capital stock; that on July 19, 2013, the Board of Directors of Fujitsu Philippines declared cash dividends amounting to Php18,054,000.00 out of the unappropriated retained earnings of the Corporation amounting to Php157,279,628.00 based on its Audited Financial Statements as of March 31, 2013 to be distributed on or before September 30, 2013 to all its stockholders of record as of March 31, 2013 at the rate of P60.18 per share; that on September 27, 2013, Fujitsu Philippines through Bank of the Philippine Islands paid the amount of US$300,569.87 to Fujitsu Japan. HcACST It is further represented, per sworn certification issued on August 15, 2013 by the Department Manager of Corporate Services of Fujitsu Philippines 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 Fujitsu Japan 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. CacHES (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 exceeding (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 Fujitsu Philippines to Fujitsu Japan are 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) Fujitsu Japan holds 240,000 common shares constituting 80 percent of the total shares of Fujitsu Philippines , which is more than ten percent (10%) of the capital of the said company ; and (2) Fujitsu Japan holds the said shares during the period of more than 6 months immediately preceding the date of payment of the dividends on September 27, 2013 or since August 10, 1999. 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. aHIEcS 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.