ITAD BIR Ruling No. 064-13

March 13, 2013 ITAD BIR RULING NO. 064-13 Article 10, Philippines-Japan tax treaty Sumidenso Automotive Technologies Asia Corporation N2835 J. Abad Santos Avenue corner Bayanihan Street Clark Freeport Zone, Pampanga Attention: Armi Pajarillo Treasurer/General Manager Gentlemen : This refers to your application for tax treaty relief dated August 15, 2012, requesting confirmation that the dividends paid by Sumidenso Automotive Technologies Asia Corporation ("Sumidenso PH") to Sumitomo Wiring Systems, Ltd. ("Sumitomo 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 Sumitomo Japan is a foreign corporation organized and existing under the laws of Japan with its principal office address at 1-14 Nishisuehiro-cho, Yokkaichi, Mie, Japan, based on its Residence Certificate issued by the tax authority of Japan on June 21, 2012; that Sumitomo Japan is not registered either as a corporation or as a partnership based on the Certification issued by the Securities and Exchange Commission on August 2, 2012; and that on the other hand, Sumidenso PH is a domestic corporation situated at N2835 J. Abad Santos Avenue corner Bayanihan Street, Clark Freeport Zone, Pampanga. It is further represented that during the organization meeting of the board of directors of Sumidenso PH held on June 27, 2012, Sumidenso PH declared cash dividends in the amount of US$305,336.71 in favor of its stockholders of record as of June 27, 2012 based on the Certificate issued by the Corporate Secretary of Sumidenso PH on July 11, 2012; that the said dividends were paid to Sumitomo Japan on August 28, 2012 based on the proof of bank remittance issued by the Bank of Tokyo-Mitsubishi UFJ, Manila Branch on September 3, 2012; and that as of July 25, 2012 and since October 5, 2001, Sumitomo Japan holds 1,507,000 common shares of stock or including five shares issued to its nominees to the Board of Directors of Sumidenso PH based on the Certification issued by the Corporate Secretary of Sumidenso PH on July 25, 2012. aHcACT 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 Certification issued by the President of Sumidenso PH on July 26, 2010. 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 a non-resident 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: 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. aEDCSI 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: 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. xxx xxx xxx " (underscoring supplied) DACTSH 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 Sumitomo Japan holds 100 percent of the total shares of Sumidenso PH 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 Sumidenso PH to Sumitomo 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. 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.