ITAD BIR Ruling No. 106-14

July 21, 2014 ITAD BIR RULING NO. 106-14 Article 10, Philippines-Japan tax treaty Angara Abello Concepcion Regala & Cruz Law Offices 22nd Floor, ACCRALAW Tower, 2nd Ave. cor. 30th Street Crescent Park West, Bonifacio Global City Taguig City Attention: Ruby Rose J. Yusi Authorized Representative Gentlemen : This refers to your tax treaty relief application dated August 9, 2012 requesting for confirmation that dividends paid by Ajinomoto Philippines Corporation ("Ajinomoto Philippines") to Ajinomoto Co., Inc. ("Ajinomoto Japan") are subject to a preferential tax 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 Ajinomoto Japan is a foreign corporation organized and existing under the laws of Japan with its principal office address at 15-1, Kyobashi 1-Chome, Chuo-ku, Tokyo 104-8315, Japan; that Ajinomoto Japan is not registered as a corporation or partnership in the Philippines based on the Certification issued by the Securities and Exchange Commission on July 10, 2012; and that on the other hand, Ajinomoto Philippines is a domestic corporation with principal address at the AJINOMOTO Bldg., 331 Sen. Gil J. Puyat Avenue, Makati City, Metro Manila. It is further represented that on July 2, 2012 the Board of Directors of Ajinomoto Philippines declared cash dividends in the amount of Five Hundred Eighty Nine Thousand Four Twenty Three Pesos (PhP589,423.00) out of the unrestricted retained earnings of the Corporation as of March 31, 2012, based on the Certificate issued by the Corporate Secretary of Ajinomoto Philippines on August 10, 2012; that Ajinomoto Japan owns Six Million Three Hundred Twenty One Thousand Seven Hundred Seventeen (6,321,717) shares of stock or 95% of the entire stockholdings of Ajinomoto Philippines with a total par value of Six Hundred Thirty Two Million One Hundred Seventy One Thousand Seven Hundred Pesos (PhP632,171,700.00) computed at One Hundred Pesos (PhP100.00) per share, acquired since December 29, 1967 up to July 31, 2007 based on the Certification issued by the Corporate Secretary of Ajinomoto Philippines on August 6, 2012; and that based on the Cable Communication Form of Rizal Commercial Banking Corporation, such dividends was remitted to Ajinomoto Japan on August 29, 2012. cDCSTA 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 Ajinomoto 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 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. TcIAHS xxx xxx xxx" In this particular case, you invoke the Philippines-Japan tax treaty. 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 25 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) 25 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. ECSHAD 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. xxx xxx xxx" Based on the aforequoted provisions, 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 25 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) 25 percent in all other cases. This being the case, and considering that Ajinomoto Japan holds 95 percent of the total shares of Ajinomoto Philippines during a period of six months immediately preceding the date of payment of the dividends or since July 31, 2007, this Office is of the opinion and so holds that such dividend paid by Ajinomoto Philippines to Ajinomoto Japan is 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. 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.