ITAD BIR Ruling No. 190-14

September 18, 2014 ITAD BIR RULING NO. 190-14 Article 10, Philippines-Netherlands tax treaty Manabat Sanagustin & Co., CPAs The KPMG Center 9/F 6787 Ayala Avenue Makati City 1226 Attention: Maria Carmela M. Peralta Principal, Tax Gentlemen : This refers to your Tax Treaty Relief Application ("TTRA") filed on May 29, 2013, on behalf of Unilever Philippines, Inc. ("Unilever") , requesting confirmation that the dividends paid to New Asia B.V. ("New Asia") by Unilever are subject to the preferential tax rate of 10 percent 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 New Asia is a resident of the Netherlands within the meaning of Article 4 of the Philippines-Netherlands tax treaty with address at WEENA 455, 3013 AL ROTTERDAM, The Netherlands per Declaration of Residence issued by the Tax and Customs Administration of the Netherlands dated September 25, 2012; that it is a corporation organized and existing under the laws of the Netherlands with an authorized share capital of one hundred thousand euro (EUR100,000), divided into one hundred thousand (100,000) shares of one euro (EUR1) each as shown in its Deed of Incorporation; 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 May 24, 2013; and that, on the other hand, Unilever is a corporation organized and existing under the laws of the Philippines with business address at 1351 United Nations Avenue, Manila. It is further represented that at the special meeting of the Board of Directors Unilever held on May 23, 2013, the Board of Directors of Unilever approved the distribution of unrestricted retained earnings of Unilever in the aggregate amount of One Billion Two Hundred Six Million Twenty-Four Thousand Nine Hundred Forty-Four Pesos (PHP1,206,024,944.00) in the form of cash dividends to its stockholders of record as of December 31, 2012, to be paid on or before May 31, 2013; that based on the Secretary's Certificate issued by Unilever dated May 24, 2013, as of the date of declaration and payment of the dividends, New Asia is the registered shareholder of Unilever with Four Million Nine Hundred Eighteen Thousand Five Hundred Twelve (4,918,512) subscribed common shares at a par value per share of Fifty Pesos (PHP50.00) or a total of Two Hundred Forty-Five Million Nine Hundred Twenty-Five Thousand Six Hundred Pesos (PHP245,925,600.00); that the shareholdings of New Asia (including its eleven nominee shares) represents 100% of the outstanding stock of Unilever. CTDHSE It is finally represented, per the Certificate of No Pending case issued on May 30, 2013 issued by Unilever , that the issue or transaction subject of this request for ruling is not under investigation, on-going audit, administrative protest, claims for refund or issuance of a tax credit certificate, collection proceedings, or judicial appeal. 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 dividends derived in the Philippines by a nonresident foreign corporation which 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 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 obligation binding upon the Government of the Philippines. xxx xxx xxx" Thus, the provisions of Article 10 of the Philippines-Netherlands tax treaty, which you invoke, may apply to the instant case. It provides: DCcTHa "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. xxx xxx xxx" Based on the above-cited provision, the 10 percent preferential tax rate on dividends 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 New Asia is wholly divided into shares, and that New Asia holds more than 10 percent of the capital of Unilever , this Office is of the opinion and so holds that the dividend paid by Unilever to New Asia 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. SDTIHA 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