ITAD BIR Ruling No. 145-14

August 14, 2014 ITAD BIR RULING NO. 145-14 Article 10 (Dividends), Philippines-Singapore tax treaty Sycip Gorres Velayo & Co. 6760 Ayala Avenue 1226 Makati City Attention: Luis Jose P. Ferrer Partner, Tax Advisory and Advocacy Group Gentlemen : This refers to your tax treaty relief application filed on April 11, 2014 requesting confirmation that dividends paid by Fujitsu Philippines, Inc. ("Fujitsu-Philippines") to Fujitsu Asia Pte. Ltd. ("Fujitsu Asia") are subject to a preferential rate of 15 percent pursuant to the Convention between the Republic of the Philippines and the Republic of Singapore for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income ("Philippines-Singapore tax treaty") . It is represented that Fujitsu Asia is a corporation organized and existing under the laws of Singapore based on its Memorandum and Articles of Association, and with principal office at 20 Science Park Road, #03-01, Tele Tech Park, Singapore Science Park II, Singapore. Fujitsu Asia is a resident of Singapore for income tax purposes based on its Certificate of Residence issued by the Inland Revenue Authority of Singapore on March 21, 2014. It is not registered as a corporation or partnership in the Philippines based on the Certification of Non-Registration issued by the Securities and Exchange Commission on March 28, 2014. On the other hand, Fujitsu-Philippines is a domestic corporation with principal office at 2nd Floor, United Life Building, 837 A. Arnaiz Avenue, Legaspi Village, Makati City, Philippines. It is also represented based on the Corporate Secretary's Certificate issued on April 4, 2014 that, as of March 31, 2014, Fujitsu Asia holds 17,478,317 common shares or an aggregate par value of P174,783,170.00 which constitute 99.99% ownership in Fujitsu-Philippines . Fujitsu Asia holds these shares since July 2009. cIECTH It is further represented based on the same Corporate Secretary's Certificate that in a special meeting of the Board of Directors of Fujitsu-Philippines on March 31, 2014, the Board approved a resolution declaring cash dividends amounting to P350,000,000.00 to all stockholders of record as of March 31, 2014 and payable in two installments on April 30, 2014 and September 30, 2014. It is finally represented that the issue or transaction subject of the above application is 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 Sworn Statement issued by the President and Chief Executive Officer of Fujitsu-Philippines on March 31, 2014. In reply, please be informed that under Section 42 (A) (2) of the National Internal Revenue Code of 1997 (" Tax Code "), as amended, dividends are considered derived within the Philippines if paid by a domestic corporation, to wit: "SEC. 42. Income from Sources within the Philippines. (A) Gross Income from Sources within the Philippines. The following items of gross income shall be treated as gross income from sources within the Philippines: xxx xxx xxx (2) Dividends. From a domestic corporation; and" Moreover, under Section 28 (B) (1) of the Tax Code, dividends paid to a foreign corporation not engaged in trade or business in the Philippines are subject to income tax at the rate of 30 percent, to wit: "SEC. 28. Rates of Income Tax on Foreign Corporations. xxx xxx xxx (B) Tax on Nonresident Foreign Corporation. cHCIDE (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: n 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 exempt or partially exempt to the extent required by any treaty obligation on the Philippines, to wit: "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." In this regard, paragraphs 1 and 2, Article 10 of the Philippines-Singapore tax treaty provide: "Article 10 Dividends 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. ESCacI 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 law of that State, but if the recipient is the beneficial owner of the dividends the tax so charged shall not exceed: a) 15 per cent of the gross amount of the dividends if the recipient is a company (including partnership) and during the part of the paying company's taxable year which precedes the date of payment of the dividend and during the whole of its prior taxable year (if any), at least 15 per cent of the outstanding shares of the voting stock of the paying company was owned by the recipient company; and b) in all other cases, 25 per cent of the gross amount of the dividends." Under Article 10, dividends arising in the Philippines and paid to a resident of Singapore may be taxed in the Philippines at a rate not to exceed 15 percent if the recipient is a company or a partnership which owns at least 15 percent of the outstanding shares of the voting stock of the company paying the dividends, and during the part of that company's taxable year which precedes the date of payment and during the whole of its prior taxable year (if any). Otherwise, the dividends are subject to 25 percent. Accordingly, considering that Fujitsu Asia owns at least 15 percent of the outstanding shares of the voting stock of Fujitsu-Philippines during the part of the company's taxable year which precedes the date of payment and during the whole of its prior taxable year, where Fujitsu Asia owns 99.99 percent of the outstanding shares of Fujitsu-Philippines since July 2009 up to present, such dividends paid by Fujitsu-Philippines to Fujitsu Asia shall be subject to income tax at the rate of 15 percent pursuant to paragraph 2 (a), Article 10 of the Philippines-Singapore 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 n Note from the Publisher: The phrase "and (d) above" no longer appears in RA 9337, the law amending this provision.