ITAD BIR Ruling No. 189-14

September 18, 2014 ITAD BIR RULING NO. 189-14 Article 10, Philippines-Netherlands tax treaty Sycip Gorres Velayo & Co. 6760 Ayala Avenue 1226 Makati City Attention: Romulo S. Danao, Jr. Partner, Tax Services Gentlemen : This refers to your Tax Treaty Relief Application ("TTRA") filed on July 31, 2013, on behalf of JOUVENIAL HOLLAND B.V. ("JOUVENIAL BV"), requesting confirmation that dividend paid by PFIZER, INC. ("PFIZER") to JOUVENIAL BV is subject to 10 percent preferential tax rate pursuant to Article 10 of the Convention between the Republic of the Philippines and the Kingdom of the Netherlands 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 JOUVENIAL BV, with principal address at Rivium Westlaan 142, 2909 LD Capelle aan den Ijssel, The Netherlands, is a resident of the Netherlands within the meaning of Article 4 of the Philippines-Netherlands tax treaty per Declaration of Residence issued by the Tax and Customs Administration of the Netherlands on December 4, 2013; that it is a corporation organized and existing under the laws of the Netherlands with authorized capital of five hundred thousand euro (EUR500,000) divided into ten thousand (10,000) shares with a nominal value of fifty euro (EUR50.00) each; that it is not registered either as a corporation or as a partnership in the Philippines per Certification of Non-Registration of Company issued by the Securities and Exchange Commission dated June 20, 2013; and that, on the other hand, PFIZER is a corporation organized and existing under the laws of the Philippines with principal address at 23rd Floor, Ayala Life-FGU Center, 6811 Ayala Avenue, Makati City. It is further represented that the Board of Directors of PFIZER declared cash dividends on July 30, 2013 in the aggregate amount of Fifty Million US Dollars (US$50,000,000.00) or the equivalent of Two Billion One Hundred Sixty Four Million Pesos (Php2,164,000,000.00) payable to all stockholders of record as of July 30, 2013, payable on August 15, 2013; that as of the date of record, JOUVENIAL BV holds 4,169,241 common shares which represent 22.722% ownership in PFIZER; and that, based on a certification issued by Standard Charter-Ayala Branch on November 28, 2013, such dividend was remitted to JOUVENIAL BV on August 15, 2013. cHAaCE In reply, please be informed that Section 28 (B) (1) of the National Internal Revenue Code (Tax Code) of 1997, as amended, applies, in general, to income derived in the Philippines by a nonresident foreign corporation. It provides: 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 interest, 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): Provided, That effective January 1, 2009, the rate of income tax shall be thirty percent (30%) . . . ." However, Section 32 (B) (5) of the Tax Code of 1997, as amended, provides: "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." In relation thereto, Article 10 of the Philippines-Netherlands tax treaty, which you invoked, may apply to the instant case. It provides: ACDIcS "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. 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. . . ." Based on the above-cited provision, the 10 percent preferential tax rate on dividend applies whenever the beneficial owner of the dividends is a company, the capital of which is divided into shares, and owns at least 10 percent of the capital of the paying company. In all other cases, 15 percent preferential tax rate applies. Such being the case and considering that the capital of PFIZER is wholly divided into shares, and that JOUVENIAL BV holds 22.722 percent of the capital of PFIZER, this Office is of the opinion and so holds that the dividend paid by PFIZER to JOUVENIAL BV shall be subject to the preferential tax rate of 10 percent of the gross amount of the dividends pursuant to Article 10 (2) (a) of the Philippines-Netherlands tax treaty. ATcaID This ruling is issued on the basis of the foregoing 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