ITAD BIR Ruling No. 403-12

December 20, 2012 ITAD BIR RULING NO. 403-12 Article 10 (Dividend), Philippines-Netherlands tax treaty; BIR Ruling No. ITAD 103-11 Sycip Gorres Velayo & Company 6760 Ayala Avenue Makati City Attention: Luis Jose P. Ferrer Principal, Tax Advisory and Advocacy Group Gentlemen : This refers to your tax treaty relief application filed on December 14, 2011, on behalf of your client, ROCHE PHARMHOLDING B.V. ("ROCHE"), requesting confirmation that dividends paid by ROCHE PHILIPPINES, INC. ("ROCHE-PHILIPPINES") to ROCHE ("ROCHE") are subject to income tax at a preferential rate of 10 percent pursuant to the Convention between the Kingdom of the Netherlands and the Republic of the Philippines 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 ROCHE is a foreign corporation organized and existing under the laws of the Netherlands and is a resident of the Netherlands, based on its Articles of Association, and on the Declaration of Residence issued by the Tax and Customs Administration of Rivierenland of The Netherlands on June 7, 2012; that ROCHE has an authorized capital of EUR1,361,340,648.27 which is divided into shares, with EUR467,847,856.57 of which has been issued and fully subscribed by its sole shareholder Roche Finance Limited; that ROCHE is situated at Beneluxlaan 2A Woerden, 3446 GR, The Netherlands; that ROCHE is not registered as a corporation or partnership in the Philippines based on the Certification of Non-Registration of Company issued by the Securities and Exchange Commission on June 1, 2012; and that, on the other hand, ROCHE-PHILIPPINES is a domestic corporation situated at Unit 1804 & 19th Floor, One Global Place Building, 5th Avenue corner 25th Street, Bonifacio Global City, Taguig City, Philippines. On June 25, 2012, the Board of Directors of ROCHE-PHILIPPINES, at its special meeting, declared cash dividends in the amount of Three Hundred Eight Million Pesos (P380,000,000.00) * to its stockholders of record of ROCHE-PHILIPPINES as of May 30, 2012, and paid on July 5, 2012 per Certification issued by Citibank Philippines dated July 26, 2012; and that ROCHE holds 30,000,000 common shares of stock issued and outstanding with a par value of P10.00 per share or Php300,000,000.00 which represent almost 100 percent of the total shares of ROCHE-PHILIPPINES. It is finally represented that the dividends subject of this ruling are not under investigation, on-going audit, administrative protest, claim for refund or issuance of a tax credit certificate, collection proceedings, or judicial appeal, based on the Sworn Statement issued by the Finance Director of ROCHE-PHILIPPINES on June 29, 2012. DTAHSI In reply, please be informed that Section 28 (B) (1) of the National Internal Revenue Code of 1997 (" Tax Code "), as amended, provides that dividends payable to ROCHE, a foreign corporation 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 . . ., dividends, . . .: Provided, That effective January 1, 2009, the rate of income tax shall be thirty percent (30%). xxx xxx xxx" However, Section 32 (B) (5) of the Tax Code provides that such dividends may be exempt from income tax or subject to reduced rate to the extent required by any treaty obligation on the Philippines, viz. : "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" With respect to a treaty, you invoke the Philippines-Netherlands tax treaty. Paragraphs 1 and 2, Article 10 thereof provide: '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. CTIDcA 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" Based on the aforequoted provisions, dividends arising in the Philippines and paid to a resident of the Netherlands may be taxed in the Philippines at a rate not to exceed: (a) 10 percent of the gross amount of dividends if the recipient of the dividends is a company the capital of which is wholly or partly divided into shares and which holds directly at least 10 percent of the capital of the company paying the dividends; and (b) 15 percent of the gross amount of the dividends in all other cases. Accordingly, inasmuch as ROCHE, the recipient of the dividends from ROCHE-PHILIPPINES, is a company in the Netherlands whose capital is wholly divided into shares, and since ROCHE holds directly 100 percent of the capital of ROCHE-PHILIPPINES, such dividends paid by ROCHE-PHILIPPINES to ROCHE are subject to income tax at the rate of 10 percent of the gross amount thereof, pursuant to paragraph 2 (a), Article 10 of the Philippines-Netherlands tax treaty. (BIR Ruling No. ITAD-103-11 dated April 4, 2011) 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