ITAD BIR Ruling No. 331-14

December 18, 2014 ITAD BIR RULING NO. 331-14 Article 10, Philippines-Singapore tax treaty Rohm Semiconductor Philippines Corporation Unit 4B Citibank-Frabelle Bldg. Madrigal, Alabang Muntinlupa City 1770 Attention: Yuichi Matsukuma Director Gentlemen : This refers to your tax treaty relief application filed on December 5, 2013, on behalf of Rohm Electronics Asia Pte. Ltd. ("Rohm Singapore"), requesting confirmation that the dividends paid by Rohm Semiconductor Philippines Corporation ("Rohm Phil") to Rohm Singapore are subject to 15 percent preferential tax rate pursuant to Article 10 of 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 Rohm Singapore is a corporation organized and existing under the laws of Singapore and is a resident thereof, having its registered address at 9 Temasek Boulevard, #21-01 Suntec Tower Two, Singapore based on the Certificate of Residence issued by the Assistant Commissioner of the Corporate Tax Division for Comptroller of Income Tax of the Inland Revenue Authority of Singapore based on request dated November 12, 2013; 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 November 18, 2013; and that, on the other hand, Rohm Phil is a corporation organized and existing under the laws of the Philippines with principal address at Unit 4B Citibank-Frabelle Bldg., Madrigal, Alabang, Muntinlupa City. It is further represented that on August 19, 2013 the Board of Directors of Rohm Phil declared cash dividends in the amount of One Million Thirty One Thousand Three Hundred Eighty Pesos (Php1,031,380.00) payable to stockholders of record as of March 31, 2013, payable on January 31, 2014; that as of the date of record, Rohm Singapore holds 26,495 shares of stock with a par value of Php500.00 per share, which represents 99.99% of the outstanding capital stock of Rohm Phil; and that, based on the Certification issued by Citibank, such dividends was remitted to Rohm Singapore on January 28, 2014. AcISTE It is finally represented 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 based on a Certification issued by the Director of Rohm Phil on December 4, 2013. In reply, please be informed that Section 28 (B) (1) of the National Internal Revenue Code (Tax Code) of 1997, 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. (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%)." IcHSCT 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 this particular case, you invoked Article 10 of the Philippines-Singapore tax treaty. It provides: "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: 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 IDTSEH b) in all other cases, 25 per cent of the gross amount of the dividends. The competent authorities of the Contracting States shall by mutual agreement settle the mode of application of this limitation. 3. The term 'dividends' as used in this Article means income from shares, 'jouissance' shares or 'jouissance' rights, mining shares, founder's shares or other rights, not being debt-claims, participating in profits, as well as income assimilated to 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 aforequoted provisions, the 15 percent preferential tax rate on dividends applies whenever the recipient of the dividends owns at least 15 percent of the outstanding voting shares of the paying company, which 15 percent shareholdings should have existed during the part of the paying company's taxable year immediately preceding the date of payment of the dividends and during the whole of its prior taxable year, if any. Otherwise, the preferential tax rate of 25 percent of the gross amount of dividends is applicable. Considering that Rohm Singapore holds 99.99% of the outstanding capital stock of Rohm Phil during the part of the taxable year which precedes the payment of the dividends and the whole of its prior taxable year or since February 15, 1996, the dividends received by Rohm Singapore from Rohm Phil are subject to the preferential tax rate of 15 percent, pursuant to Article 10 (2) (a) 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. HIaAED Very truly yours, (SGD.) KIM S. JACINTO-HENARES Commissioner Bureau of Internal Revenue