ITAD BIR Ruling No. 135-13

May 14, 2013 ITAD BIR RULING NO. 135-13 Article 10, Philippines-Netherlands tax treaty Sycip Gorres Velayo and Co. 6760 Ayala Avenue 1226 Makati City Attention: Wilfredo U. Villanueva Principal, Tax Services Gentlemen : This refers to your tax treaty relief application filed on August 23, 2012, requesting confirmation that dividends received by MJN Holding (Asia) B.V. ("MJN Holdings") formerly BMS Pharmaceuticals Asia Holdings B.V. from Mead Johnson Nutrition (Philippines),Inc. ("MJN Philippines") are subject to income tax of 10 percent preferential 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 . Facts It is represented that MJN Holdings is a foreign corporation organized and existing under the laws of Netherlands and a resident thereof based on its Articles of Association and on the Certificate of Residence issued by Tax Administration Rivierenland, The Netherlands on July 5, 2012; that MJN Holdings is a company the authorized capital of which is divided into 90,000 shares of stock, each share with a par value of 1.00; that MJN Holdings is situated at Vijzelmolenlaan 9,3447 GX Woerden, the Netherlands; that MJN Holdings is not registered as corporation in the Philippines per certification issued by the Securities and Exchange Commission; and that, on the other hand, MJN Philippines is a corporation organized and existing under the laws of the Philippines with principal address at 2309 Chino Roces Avenue Extension, Makati City, Philippines. It is further represented based on the Certificates issued by the Corporate Secretary of MJN Philippines on August 6, 2012, through its Board of Directors declared cash dividends of P1,345,600,000.00 in favor of MJN Philippines stockholders of record as of August 8, 2012 and will be paid on August 27, 2012; and that as of August 6, 2012, MJN Holdings is a stockholder with 1,397,495 common shares with a par value of P100.00 equivalent to 99.99 percent of the total shares of MJN Philippines ;and that per Certification issued by Citibank Manila dated September 20, 2012, the dividends were paid on September 4 and 13, 2012. HSCATc Ruling 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 MJN Holdings 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 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 interests, dividends, rents, royalties, salaries, premiums (except reinsurance premiums), annuities, emoluments or other fixed or determinable annual, periodic or casual gains, profits and income, and capital gains, except capital gains subject to tax under subparagraph 5(c) and (d) above: * 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, 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: "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." SACHcD With respect to a treaty, you invoke the Philippines-Netherlands tax treaty. Paragraphs 1 and 2, Article 10 thereof provide: "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: 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." Under paragraph 2 of Article 10, dividends arising in the Philippines and paid to a resident of the Netherlands may be taxed in the Philippines at a rate not to exceed (a) 10 percent if the recipient 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 in all other cases. Accordingly, since MJN Holdings is a company the capital of which is divided into shares and which holds directly at least 10 percent (in fact 99.99 percent) of the capital of MJN Philippines ,such dividends paid by MJN Philippines to MJN Holdings are subject to income tax at the rate of 10 percent of the gross amount thereof, pursuant to paragraph 2 (a), Article 10 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. EASIHa Very truly yours, (SGD.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue