ITAD BIR Ruling No. 062-13

March 13, 2013 ITAD BIR RULING NO. 062-13 Article 10, Philippines-Japan tax treaty Transnational Diversified Corporation Penthouse Net Quad Building, 30th Street E-Square Crescent Bonifacio Global City, Taguig Attention: Socorro Z. Niro Chief Finance Officer Gentlemen : This refers to your application for tax treaty relief dated September 13, 2012, requesting confirmation that the dividends to be paid by NCT Transnational Corporation (" NCT Phil ") to Nippon Container Terminal Co.,Ltd. (" Nippon Japan ") are subject to the preferential rate of 10 percent pursuant to the Convention between the Republic of the Philippines and Japan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income as amended by a Protocol 1 (" Philippines-Japan tax treaty "). It is represented that Nippon Japan is a foreign corporation organized and existing under the laws of Japan with its principal office address at 4-28 Mita 1-Chome, Minato-Ku, Tokyo, Japan, based on its Residence Certificate dated July 27, 2012; that Nippon Japan is not registered as a corporation or as a partnership based on the Certification issued by the Securities and Exchange Commission on September 7, 2012; and that on the other hand, NCT Phil is a domestic corporation situated at Ground Floor TDG-NYK Harbor Center Building I, corner 23rd and 24th Streets, Port Area, Manila. It is further represented that during a joint annual stockholders and regular board of directors and stockholders owning at least two-thirds of the outstanding capital stock of the corporation at a joint annual stockholders and regular board of directors meeting held on August 24, 2012, it was resolved that NCT Phil declared stock dividends of 7 percent of the total stockholders' equity and 23 percent of the company's unappropriated retained earnings or equivalent to five million as of December 31, 2011 and that the same be distributed to its stockholders of record in accordance with their respective shareholdings based on the Certificate issued by the Corporate Secretary of NCT Phil on September 10, 2012; that the said dividends were paid to Nippon Japan on September 17, 2012 based on the telegraphic transfer issued by Banco de Oro, Luneta-Kalaw branch on even date; and that as of December 31, 2011, Nippon Japan holds 1,375,000 common shares of stock, including nominees at PhP10.00 per share, out of the total outstanding shares of NCT Phil amounting to 5,000,000, as of December 31, 2011 based on the Certificate issued by the Corporate Secretary of NCT Phil on September 10, 2012. IDCHTE It is finally represented that the dividends subject of this ruling are not under investigation, on-going audit, administrative protest, claim for refund or issuance of a tax credit certificate, collection proceedings, or judicial appeal, based on the Certificate of No Pending Case issued by the Corporate Secretary of NCT Phil on August 27, 2012. In reply, please be informed that Section 28 (B) (1) of the National Internal Revenue Code of 1997 (" Tax Code "),as amended, provides that dividends paid to Nippon Japan, being a foreign corporation not engaged in trade or business in the Philippines, are subject to income tax at the rate 30 percent, thus: "Section 28. Rates of Income Tax on Foreign Corporations. xxx xxx xxx (B) Tax on Nonresident 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 . . ., dividends, . . .: Provided, That effective January 1, 2009, the rate of income tax shall be thirty percent (30%). xxx xxx xxx" However, Section 32 (B) (5) of the Tax Code provides that such 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: "Section 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: CcAITa 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. xxx xxx xxx" In this particular case, you invoke the Philippines-Japan tax treaty, as amended. Paragraphs 1, 2 and 3, 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. 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: SIDTCa 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. aDHCAE xxx xxx xxx" (underscoring supplied) Based on the aforequoted provisions, dividends arising in the Philippines and paid to a resident of Japan may be taxed in the Philippines, beginning January 1, 2009, 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 for a 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 incentive laws of the Philippines; and (c) 15 percent in all other cases. This being the case, and considering that Nippon Japan holds more than 10 percent of the total shares of NCT Phil during a period of six months immediately preceding the date of payment of the dividends, this Office is of the opinion and so holds that such dividends paid by NCT Phil to Nippon Japan are subject to income tax at a preferential rate of 10 percent based on the gross amount thereof, pursuant to paragraph 2 (a), Article 10 of the Philippines-Japan tax treaty, as amended. 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. aCTcDS Very truly yours, (SGD.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue Footnotes 1. Protocol Amending the Convention Between the Republic of the Philippines and Japan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income effective January 1, 2009.