ITAD BIR Ruling No. 096-15

March 25, 2015 ITAD BIR RULING NO. 096-15 Article 10, Philippines-Netherlands Tax Treaty Punongbayan & Araullo 20th Floor, Tower 1 The Enterprise Center 6766 Ayala Avenue 1200 Makati City Attention: Ms. Lina P. Figueroa Principal, Tax Advisory & Compliance Gentlemen : This refers to your tax treaty relief application filed on November 19, 2012, on behalf of DUTCH CONTACT CENTERS (DCC) B.V. ("Dutch Contact") , requesting confirmation that the dividends paid by TELEPHILIPPINES INCORPORATED ("TELEPHILIPPINES") to Dutch Contact are subject to 10 percent preferential tax rate pursuant to the Convention between the Kingdom of the Netherlands and the Republic of the Philippines for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income ("Philippines-Netherlands tax treaty") . It is represented that Dutch Contact , with address at Orfeaoshouw 70, 2726 JH Zoetermeer, the Netherlands, is a resident of the Netherlands within the meaning of Article 4 of the Philippines-Netherlands tax treaty based on the Declaration of Residence issued by the Director General of the Tax and Customs Administration of the Netherlands dated June 5, 2012; that based on its Articles of Association, Dutch Contact is company incorporated under the laws of the Netherlands with authorized capital of ninety thousand euros (EUR90,000), divided into nine thousand (9,000) shares, each having a nominal value of ten euros (EUR10); that Dutch Contact is not registered as a corporation or as a partnership in the Philippines, as shown in the Certification of Non-Registration of Company issued by the Securities and Exchange Commission on May 8, 2012; and that, on the other hand, Telephilippines is a domestic corporation duly organized and existing under Philippine laws, located at the 12/F Octagon Center Building, Ortigas Center, San Miguel Avenue, Pasig City. It is also represented, based on the Secretary's Certificate issued by Telephilippines dated November 8, 2012, that on May 9, 2012 the Board of Directors of Telephilippines declared cash dividends in the amount of Php496,560,000.00 at Php45.22 per share in favor of all stockholders of record as of September 25, 2012; that as of November 20, 2012, Dutch Contact is the owner of 10,979,982 shares of stocks of Telephilippines which constitutes 99.99984% of the total shareholdings of Telephilippines ; that said shares were acquired by Dutch Contact from Teleperformance International and Philippine Integrated Network Services, Inc. on November 2010; and that the dividends were remitted by Telephilippines to Dutch Contact thru Banco de Oro on November 20, 2012. HSTaEC It is finally represented, based on the Certification by Telephilippines on November 15, 2012 that the transaction subject of the request for ruling is not under investigation, on-going audit, administrative protest, claim for refund or issuance of a tax credit certificate, collection proceedings, or judicial appeal of the taxpayer/s involved. In reply, please be informed that Section 28 (B) (1) of the National Internal Revenue Code of 1997 ("Tax Code of 1997"), as amended, applies, in general, to dividends derived in the Philippines by a nonresident foreign corporation. It provides: "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 of 1997, as amended, provides that any income may be exempt from income tax to the extent required by any treaty obligation binding upon the Philippine Government, 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. xxx xxx xxx" Thus, Article 10 of the Philippines-Netherlands tax treaty which you invoke, may apply to the instant case. It provides: "Article 10 Dividends 1. Dividends paid by a company which is a resident of one of the States to a resident of the other State may be taxed in that other State. 2. However, such dividends may also be taxed in the State of which the company paying the dividends is a resident and according to the laws of that State, but if the recipient is the beneficial owner of the dividends the tax so charged shall not exceed: ETaHCD a) 10 per cent of the gross amount of the dividends if the recipient is a company the capital of which is wholly or partly divided into shares and which holds directly at least 10 per cent of the capital of the company paying the dividends; b) 15 per cent of the gross amount of the dividends in all other cases. xxx xxx xxx 5. The term 'dividends' as used in this Article means income from shares, 'jouissance' shares or 'jouissance' rights, mining shares, founders' shares or other rights participating in profits, as well as income from debt-claims participating in profits and income from other corporate rights which is subjected to the same taxation treatment as income from shares by the taxation law of the State of which the company making the distribution is a resident. 6. The provisions of paragraphs 1 and 2 shall not apply if the recipient of the dividends, being a resident of one of the States, carries on business in the other State, of which the company paying the dividends is a resident, through a permanent establishment situated therein or performs in that other State professional services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply. xxx xxx xxx" Based on the aforequoted provisions, dividends arising in the Philippines and paid to a resident of the Netherlands may be subject to income tax in the Philippines, but the rate of tax that may be imposed thereon shall not exceed: (a) 10 percent of the gross amount of dividends if the recipient of the dividends is a company, the capital of which is wholly or partly divided into shares, and which holds directly at least 10 percent of the capital of the company paying the dividends; and (b) 15 percent of the gross amount of the dividends in all other cases. Accordingly, inasmuch as Dutch Contact is a private company in the Netherlands, the capital of which is wholly divided into shares, and since Dutch Contact holds directly 99.9984 percent of the capital of Telephilippines (which is actually more than the required minimum shareholding of 10 percent), such dividends to be paid by Telephilippines to Dutch Contact are subject to Philippine income tax at the rate of 10 percent of the gross amount thereof pursuant to Article 10 (2) (a) of the Philippines-Netherlands tax treaty. 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