ITAD BIR Ruling No. 406-12

December 20, 2012 ITAD BIR RULING NO. 406-12 Article 10, Philippines-Switzerland tax treaty Philip Morris Philippines Manufacturing, Inc. 27th Floor, Tower 1, The Enterprise Center Ayala Avenue, Makati City Attention: Mitchell Gault Finance Director Gentlemen : This refers to your Tax Treaty Relief Application filed on December 13, 2010, requesting confirmation that the dividends paid by PHILIP MORRIS PHILIPPINES MANUFACTURING, INC. ("PMPMI") to PHILIP MORRIS BRANDS SARL ("PMBS") are subject to the preferential tax rate of 10 percent pursuant to Article 10 of the Convention between the Republic of the Philippines and the Swiss Federation for the Avoidance of Double Taxation with Respect to Taxes on Income ("Philippines-Switzerland tax treaty") . It is represented that PMBS, with address at Quai Jeanrenaud 3 CH-2000, Switzerland, is a corporation duly organized and existing under the laws of Switzerland, and is a resident of Switzerland within the meaning of the Philippines-Switzerland tax treaty per the Statement on the Tax Status of the Business issued by the Service des Contributions De La Securite et Des Finances on September 20, 2010; that it is not registered either as a corporation or partnership in the Philippines per Certification of Non-Registration of Company issued by the Securities and Exchange Commission dated December 08, 2010; and that, on the other hand, PMPMI is a corporation organized and existing under the laws of the Philippines with office address at 27th Floor, The Enterprise, Paseo de Roxas corner Ayala Avenue, Makati City. It is further represented, per Secretary's Certificate issued by PMPMI on December 08, 2010, that as of December 01, 2010, PMBS holds 297,995 common shares in PMBS equivalent to PHP279,995,000.00 and which constitute 52.8292% ownership in PMPMI; that on December 03, 2010, the Board of Directors of PMPMI unanimously approved a resolution declaring cash dividends of Three Billion Pesos (PHP3,000,000,000.00) out of PMPMI's retained earnings as of November 30, 2010, in favor of its stockholders as of December 01, 2010, to be distributed on or before December 31, 2010. TAaHIE It is further 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 per the sworn statement of PMPMI dated December 13, 2010. It is finally represented, per the Citibank Manila bank payment advice on PMPMI's account submitted on May 11, 2012, that dividends in various amounts were remitted by PMPMI to PMBS on December 15 and December 16, 2010. 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%). xxx xxx xxx" However, Section 32 (B) (5) of the Tax Code of 1997, as amended, provides: cDHAES "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. . . ." Thus, the provisions of Article 10 of the Philippines-Switzerland tax treaty, 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 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 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 (excluding partnerships) which holds directly at least 10 per cent of the capital of the paying company; b) 15 per cent of the gross amount of the dividends in all other cases. 3. 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 which is subjected to the same taxation treatment as income from shares by the taxation law of that State of which the company making the distribution is a resident. . . ." aAHDIc Based on the aforequoted provisions of Article 10, dividends paid by a Philippine corporation to a resident of Switzerland may be taxed at a rate not exceeding 10 percent of the gross amount of dividends if the recipient is a company which holds directly at least 10 percent of the capital of the Philippine corporation; and 15 percent if the shareholdings of the recipient company is below 10 percent of the capital of the paying company. In view thereof, since PMBS directly owns more than 10 percent of the capital stock of PMPMI, this Office is of the opinion and so holds that the dividend payments by PMPMI to PMBS are subject to 10 percent preferential tax rate pursuant to Article 10 (2) (a) of the Philippines-Switzerland tax treaty. 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