ITAD BIR Ruling No. 254-13

August 22, 2013 ITAD BIR RULING NO. 254-13 Article 10, Philippines-Singapore tax treaty Deutsche Regis 23rd Floor Tower One Ayala Triangle, Makati City Gentlemen : This refers to your tax treaty relief application (TTRA) filed on April 30, 2013 requesting for confirmation that the dividends paid by Deutsche Regis Partners, Inc. ("Deutsche PH") to Deutsche Asia Pacific Holdings Pte. Ltd. ("Deutsche SG") are subject to preferential income tax rate of 15 percent pursuant to 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") . HCaDIS It is represented that Deutsche SG is a foreign corporation and is a resident of Singapore with principal address at 1 Raffles Quay, #17-10, Singapore based on the Certificate of Residence issued by the Inland Revenue Authority of Singapore on March 30, 2013; that Deutsche SG is not registered as corporation or partnership in the Philippines based on the Certification of Non-Registration of Company issued by the Securities and Exchange Commission on April 29, 2013; that, on the other hand, Deutsche PH is a domestic corporation with principal business address at the 23rd Floor Tower One, Ayala Triangle, Makati City. It is further represented that on January 10, 2013, Deutsche PH declared cash dividends amounting to PhP323,000,000.00, to be distributed to all stockholders of record as of December 31, 2012 based on the Certificate of the corporate secretary of Deutsche PH issued on April 22, 2013; that Deutsche holds 490,000 common shares in Deutsche PH, constituting 49 percent ownership in Deutsche PH since 2007 based on the same Certificate of the corporate secretary of Deutsche PH issued on April 22, 2013; and that, said dividends were paid to Deutsche SG by Deutsche PH on May 3, 2013 based on the Sworn Statement issued by Deutsche Bank Group on May 27, 2013. In reply, please be informed that Section 28 (B) (1) of the National Internal Revenue Code of 1997, as amended, provides that dividends derived by non-resident foreign corporations not engaged in trade or business in the Philippines, are subject to income tax at the rate of 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 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): Provided, That effective January 1, 2009, the rate of income tax shall be thirty percent (30%). DHIcET xxx xxx xxx" However, Section 32 (B) (5) of the same Code provides that such dividends may be exempt from income tax or partially exempt (if subject to a reduced rate only) 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. xxx xxx xxx" For this purpose, you invoke the Philippines-Singapore tax treaty. Paragraphs 1 and 2, Article 10 thereof 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 State. 2. However, such dividends may 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: ASTcEa 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. xxx xxx xxx" (emphasis supplied) Based on the aforequoted provisions, dividends arising in the Philippines and paid to a resident of Singapore may be taxed in the Philippines at a rate not to exceed (a) 15 percent of the gross amount of the dividends if the company or recipient of the dividends owns at least 15 percent of the outstanding voting stock of the company paying the dividends during the part of the latter's taxable year immediately preceding the date of payment of the dividends and during the whole of its prior taxable year, if any, and (b) 25 percent of the gross amount of the dividends in all other cases. Accordingly, since Deutsche SG owns 49 percent of the shareholdings of Deutsche PH during the part of Deutsche PH's taxable year immediately preceding the date of payment of the dividends, and during the whole prior taxable year, in fact since 2007, such dividends paid by Deutsche PH to Deutsche SG are subject to a preferential tax 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. TIHCcA Very truly yours, (SGD.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue