ITAD BIR Ruling No. 348-13

December 9, 2013 ITAD BIR RULING NO. 348-13 Article 10, Philippines-Japan tax treaty Team Energy Corporation CTC Building 2232 Roxas Boulevard Pasay City Attention: Mr. Kazunobu Takijima Vice President Controller Ms. Taryn F. Uberita Senior Tax Manager Gentlemen : This refers to your tax treaty relief application filed on June 20, 2013 requesting confirmation that dividends paid by TeaM Energy Corporation ("TeaM Energy") to Marubeni Corporation ("Marubeni") are subject to a preferential tax rate of 10 percent pursuant to the 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 by a Protocol . 1 It is represented that Marubeni is a corporation organized and existing under the laws of Japan based on its amended Articles of Incorporation and Certification of Residence issued by the Kojimachi Tax Office in Japan on May 17, 2013; that Marubeni has principal office at 4-2, Ohtemachi 1-Chome, Chiyoda-ku, Tokyo, Japan; that Marubeni has a permanent establishment in the Philippines in the nature of a branch , namely, Marubeni Corporation Manila Branch ("Marubeni Philippine Branch") , which is registered with and licensed by the Securities and Exchange Commission under SEC Registration No. F000000493 since March 20, 1967, and to which no petition for withdrawal or cancellation of license has been filed to date; that Marubeni Philippine Branch has principal office at 8th and 9th Floors, Locsin Building, Ayala Avenue, Makati, Philippines; and that on the other hand, TeaM Energy is a domestic corporation with principal office at CTC Building, 2232 Roxas Boulevard, Pasay, Philippines. cCaDSA It is also represented, based on the two Secretary's Certificate issued on June 20, 2013, that the Board of Directors of TeaM Energy , in a special meeting on that date, approved the declaration of cash dividends amounting to US$30,300,000.00 in favor of the stockholders of record of TeaM Energy as of June 20, 2013, and payable on or before June 25, 2013; that as of record date on June 20, 2013, Marubeni holds 50 percent of the outstanding shares of stock issued of TeaM Energy as described below: Stockholder Number and Mode of Acquisition Percentage of Value of Shares Acquisition Date Ownership Marubeni 16,534,176 Pursuant Aug. 24, 2007 50 percent (P165,341,760.00) to a merger 2 It is further represented, based on another Secretary's Certificate issued on June 24, 2013, and on the electronically generated document issued by Mizuho Bank Ltd. Manila Branch 3 on the same date, that TeaM Energy remitted such dividends to Marubeni as follows: Date of Reference Gross Net Amount After Remittance Number Amount Withholding Tax June 21, 2013 OTT749838328 US$15,150,000.00 US$13,635,000.00 (P663,324,013.66) (P596,991,612.29) It is finally represented, based on the Certification issued by Marubeni Philippine Branch on July 10, 2013, that Marubeni Philippine Branch has no participation (direct or indirect) in the acquisition by Marubeni of its shares in TeaM Energy ; that income derived by Marubeni from such shares is neither attributable to Marubeni Philippine Branch nor paid or coursed through it since any dividend income derived is directly recorded in the books of Marubeni ; that any dividend income is neither connected with, nor resulting from the ordinary course of trade or business of Marubeni Philippine Branch ; that Marubeni Philippine Branch has no investment nor own shares in TeaM Energy , and, accordingly, Marubeni Philippine Branch does not use or hold for use in the conduct of its trade or business any shares in TeaM Energy ; that all gains inure to the sole benefit of Marubeni and that Marubeni-Manila does not receive any such gains; and that Marubeni-Manila is not a material factor in the realization of any gain received by Marubeni . TIDaCE In reply, please be informed that under Section 42 (A) (2) (a) of the National Internal Revenue Code of 1997 ("Tax Code") , as amended, dividends are considered derived in the Philippines if paid by a domestic corporation, to wit: "SEC. 42. Income from Sources within the Philippines . (A) Gross Income from Sources within the Philippines . The following items of gross income shall be treated as gross income from sources within the Philippines: xxx xxx xxx (2) Dividends . The amount received as dividends: (a) From a domestic corporation; and" Moreover, under Section 28 (B) (1) of the Tax Code, dividends paid to a foreign corporation not engaged in trade or business in the Philippines are subject to income tax at the rate of 30 percent, to wit: "SEC. 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) and (d) above: n Provided, That effective January 1, 2009, the rate of income tax shall be thirty percent (30%)." aATHIE However, under Section 32 (B) (5) of the Tax Code, such dividends are exempt or partially exempt to the extent required by any treaty obligation on the Philippines, to wit: "SEC. 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 invoke the Philippines-Japan tax treaty, as amended. Article 10 thereof 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. AcTDaH 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 per cent 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; b) 15 per cent of the gross amount of the dividends in all other cases. xxx xxx xxx 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." SaETCI Based on the above 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 if the company recipient of the dividends holds directly at least 10 percent of the voting shares or the total shares of the company paying the dividends for a period of six months immediately preceding the date of payment of the dividends, and (b) 15 percent in all other cases (paragraphs 1 and 2) . However, the preferential rates do not apply if the recipient of dividends carries on business in the Philippines through a permanent establishment situated therein and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment (paragraph 5) . On the question of dividends effectively connected with a permanent establishment, the following commentaries of the Organisation for Economic Co-operation and Development Model Tax Convention on Income and on Capital (Condensed Version, July 22, 2010 p. 193) mention that this is the case if the dividends are paid in respect of holdings forming part of the assets of the permanent establishment or otherwise effectively connected with that establishment, thus: " 31. Certain States consider that dividends, interest and royalties arising from sources in their territory and payable to individuals or legal persons who are residents of other States fall outside the scope of the arrangement made to prevent them from being taxed both in the State of beneficiary's residence when the beneficiary has a permanent establishment in the former State. Paragraph 4 is not based on such a conception which is sometimes referred to as 'the force of attraction of the permanent establishment'. It does not stipulate that dividends flowing to a resident of a Contracting State from a source situated in the other State must, by a kind of legal presumption, or fiction even, be related to a permanent establishment which that resident may have in the latter State, so that the said State would not be obliged to limit its taxation in such a case. The paragraph merely provides that in the State of source the dividends are taxable as part of the profits of the permanent establishment there owned by the beneficiary which is a resident of the other State, if they are paid in respect of holdings forming part of the assets of the permanent establishment or otherwise effectively connected with that establishment . . ." (Underscoring supplied) TcCDIS Similarly, in Marubeni Corporation vs. Commissioner of Internal Revenue and the Court of Tax Appeals (G.R. No. 76573 dated September 14, 1989), the Supreme Court ruled that dividends derived by a foreign corporation which has a branch office in the Philippines are effectively connected with the branch office only if the business activities that give rise to the dividends are conducted through the branch office, following the principal-agent relationship theory, thus: " The general rule that a foreign corporation is the same juridical entity as its branch office in the Philippines cannot apply here. This rule is based on the premise that the business of the foreign corporation is conducted through its branch office, following the principal-agent relationship theory . It is understood that the branch becomes its agent here. So that when the foreign corporation transacts business in the Philippines independently of its branch, the principal-agent relationship is set aside. The transaction becomes one of the foreign corporation, not the branch or the resident foreign corporation. Corollarily, if the business transaction is conducted through the branch office, the latter becomes the taxpayer, and not the foreign corporation ." (Underscoring supplied) Accordingly, dividends paid by TeaM Energy to Marubeni are not effectively with Marubeni Philippine Branch since Marubeni Philippine Branch has no participation in the acquisition of these shares in TeaM Energy ; the dividends are not attributable to Marubeni Philippine Branch nor paid or coursed through it since such income is directly recorded in the books of Marubeni ; the dividends are not connected with, nor resulting from the ordinary course of trade or business of Marubeni Philippine Branch; Marubeni Philippine Branch has no investment or shares in TeaM Energy , use or hold for use in the conduct of its trade or business any shares in TeaM Energy ; all gains inure to the sole benefit of Marubeni and Marubeni-Manila does not receive any such gains; and Marubeni-Manila is not a material factor in the realization of any gain received by Marubeni . DCTSEA Moreover, since Marubeni holds directly at least 10 percent of the total shares issued by TeaM Energy for a period of six months immediately preceding the date of payment of the dividends on June 24, 2013, where Marubeni actually holds 50 percent of these shares since August 24, 2007 , such dividends paid by TeaM Energy to Marubeni shall be subject to income tax at the rate of 10 percent pursuant to paragraph 2 (a), Article 10 of the Philippines-Japan tax treaty, as amended. 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 Footnotes 1. Protocol Amending the 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 effective January 1, 2009 . 2. By and among TeaM Energy (formerly, Mirant Pagbilao Corporation ) as the surviving corporation and Crimson Power Holdings Company, Inc., Team Sual Investments Corporation (formerly, Mirant Sual Investments Corporation ) and Team Energy Power Holdings Corporation (formerly, Mirant (Philippines) Corporation ) as the corporations ceasing to exist . 3. Located at 26th Floor, Citibank Tower, Valero Street corner Villar Street, Salcedo Village, Makati, Philippines.