ITAD BIR Ruling No. 287-15

October 16, 2015 ITAD BIR RULING NO. 287-15 Article 10, Philippines-Japan tax treaty, as amended Tan Venturanza Valdez 2704 East Tower Philippine Stock Exchange Centre, Ortigas Center, Pasig City Attention: Anna Francesca C. Respicio Authorized Representative Gentlemen : This refers to your tax treaty relief application filed on October 20, 2014, requesting confirmation that dividends paid by TOYOTA TSUSHO PHILIPPINES CORPORATION ("Toyota Tsusho-PH") to TOYOTA TSUSHO CORPORATION ("Toyota Tsusho-Japan") are subject to the preferential rate of 10 percent pursuant to Article 10 of the amended Convention between the Republic of the Philippines and Japan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income ("Philippines-Japan tax treaty, as amended") . IAETDc It is represented that Toyota Tsusho-Japan is a corporation organized and existing under the laws of Japan, and is a resident of Japan for tax purposes based on the Certificate of Residence issued by the District Director of Nagoya Nakamura Tax Office dated August 28, 2014; that Toyota Tsusho-Japan is a company with authorized capital stock divided into 500,000 shares with nominal value of one hundred pesos (Php100.00) per share; 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 October 20, 2014; and that, on the other hand, Toyota Tsusho-PH is a corporation organized and existing under the laws of the Philippines. It is further represented, that on October 8, 2014, at the special meeting of the Board of Directors of Toyota Tsusho-PH , the Board of Directors of Toyota Tsusho-PH declared cash dividends in the amount of One Hundred Two Million One Hundred Forty Four Thousand Pesos (Php102,144,000.00) to be taken out of its unrestricted retained earnings in favor of all the stockholders of record as of close of business on September 1, 2014; that as of September 1, 2014, Toyota Tsusho-Japan is the beneficial owner of 500,000 common shares of Toyota Tsusho-PH , including seven (7) shares held by its Nominee-Directors, constituting of 100.00% of the total outstanding capital stock of Toyota Tsusho-PH since September 28, 2007. It is finally represented, per Sworn Statement dated October 8, 2014 issued by Toyota Tsusho-PH , 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. It 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%)." DcHSEa 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. xxx xxx xxx" Thus, Article 10 of the Philippines-Japan tax treaty, as amended, which you invoke, may apply to the instant case. It provides: "Article 10 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. 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 laws of that Contracting 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 beneficial owner is a company which holds directly at least 10 percent either of the voting shares of the company paying the dividends or of the total shares issued by that company during the period of six months immediately preceding the date of payment of the dividends; SCaITA b) 15 per cent of the gross amount of the dividends in all other cases. xxx xxx xxx 3. Notwithstanding the provisions of paragraph 2, the amount of tax imposed by the Philippines on the dividends paid by a company, being a resident of the Philippines, registered with the Board of Investments and engaged in preferred pioneer areas of investment under the investment incentives laws of the Philippines to a resident of Japan, who is the beneficial owner of the dividends, shall not exceed 10 per cent of the gross amount of the dividends. 4. The term 'dividends' as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income from other corporate rights assimilated to income from shares by the taxation laws of the Contracting State of which the company making the distribution is a resident. 5. The provisions of paragraphs 1, 2 and 3 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other Contracting State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. xxx xxx xxx" Based on the aforequoted provisions, dividends arising in the Philippines and paid to a resident of Japan may be taxed in the Philippines at a rate not to exceed (a) 10 percent of the gross amount of the dividends if (i) the beneficial owner is a company which holds directly at least 10 percent of the voting shares of the company paying the dividends or of the total shares issued by that company during the period of six months immediately preceding the date of payment of the dividends, or (ii) the dividends are paid by a company, being a resident of the Philippines, which is registered with the Board of Investments and engaged in preferred pioneer areas of investment under the investment incentives laws of the Philippines; and (b) 15 percent of the gross amount of the dividends, in all other cases. aTHCSE In view thereof and considering that Toyota Tsusho-Japan , a resident of Japan with no fixed place of business in the Philippines, holds 100 percent ownership of the capital of Toyota Tsusho-PH for more than six months immediately preceding the date of payment of the dividends or since September 28, 2007, such dividends paid by Toyota Tsusho-PH to Toyota Tsusho-Japan are subject to the preferential tax rate of 10 percent of the gross amount thereof, pursuant to paragraph 2 (a), Article 10 of the Philippines-Japan tax treaty, as amended. 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