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Article 13 (Royalties),
Philippines-United States tax treaty;
Article 12 (Royalties),
Philippines-United Arab Emirates tax
treaty
Attention: AAA
Gentlemen :
This refers to your tax treaty relief application filed on July 6, 2011 requesting
confirmation that royalties paid by Magnifico Jeans, Inc. ("Magnifico") to
Wrangler Apparel Corporation ("Wrangler") are subject to income tax at the rate
of 10 percent pursuant to the Convention between the Government of the Republic
of the Philippines and the Government of the United States of America with
Respect to Taxes on Income ("Philippines-United States tax treaty").
FACTS
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On January 1, 2011, Magnifico and Wrangler entered into a License
Agreement ("Agreement") where Wrangler granted Magnifico a non-assignable
right and license to use the licensed trademarks in the Philippines in connection with
the manufacture, sale and distribution of jeanswear and casual wear. The licensed
trademarks pertains to the trademark 'Wrangler' and 'W' followed by the symbol ® or
TM, which are registered trademarks in the Philippines or are pending registration.
These marks are used in clothing (casual tops, casual bottoms, jackets, vests, coats,
belts for clothing, scarves, bandanas and gloves); headgear (hats, caps and earmuffs);
footwear (shoes, boots, sneakers and slippers); precious metals and their alloys and
goods in precious metals or coated therewith; backpacks; shoulder bags; handbags;
purses; wallets; coin purses; small cases. In consideration, Magnifico will pay
royalties to Wrangler amounting to 8 percent 1(1) of the net sales with minimum
royalties 2(2) for each calendar year. Magnifico desires to obtain on a continuing
basis the benefit of manufacturing techniques, know-how, and goodwill accumulated
by Wrangler and its related companies in the selling of licensed products; to receive
the aid and assistance of Wrangler and its related companies in learning methods of
operation and processes of manufacturing; and to apply such to the licensed products
made by Magnifico for sale by Magnifico and to apply such to the licensed products
under the licensed trademarks. The Agreement took effect on January 1, 2011 and
expired on December 31, 2013.
On January 1, 2014, the parties renewed the Agreement for the purpose of
extending its term until December 31, 2018, and increasing the minimum royalties
3(3) for subsequent calendar years. The renewed License Agreement complies with
the provisions of the Intellectual Property Code on voluntary licensing based on
Certificate issued by the Intellectual Property Office on March 31, 2011.
RULING
In reply, please be informed that under Section 28 (B) (1) of the National
Internal Revenue Code of 1997, as amended ("Tax Code"), income derived in the
Philippines by a foreign corporation not engaged in trade or business is subject to
income tax at the rate of 30 percent, to wit:
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xxx xxx xxx
However, under Section 32 (B) (5) of the Tax Code, the income is exempt or
partially exempt to the extent required by any treaty obligation on the Philippines, to
wit:
(B) Exclusions from Gross Income. — The following items shall not
be included in gross income and shall be exempt from taxation
under this Title:
"Article 13
ROYALTIES
Under Article 13, the royalties may be taxed in the Philippines at the lowest
rate that may be imposed on royalties of the same kind and paid to a resident of a
third State under similar circumstances. This is known as the most-favored-nation
("MFN") treatment on royalties.
"Article 12
ROYALTIES
"United States:
"UAE:
Finally, under Section 108 (A) of the Tax Code, said royalties for the use or
lease of properties are subject to value-added tax ("VAT"), to wit:
(A) Rate and Base of Tax. — There shall be levied, assessed and
collected, a value-added tax equivalent to ten percent (10%) of
gross receipts derived from the sale or exchange of services,
including the use or lease of properties: Provided, that the
President, upon the recommendation of the Secretary of Finance,
shall, effective January 1, 2006, 4(5) raise the rate of
value-added tax to twelve percent (12%). . ."
Relative thereto, Magnifico shall withhold VAT on the royalties at the rate of
12 percent before remitting them to Wrangler. Magnifico shall use BIR Form No.
1600 (Monthly Remittance Return of Value-Added Tax and Other Percentage Taxes
Withheld). The duly filed form and accompanying proof of payment shall serve as
documentary substantiation for Magnifico's claim of input VAT on the royalties;
otherwise, if not a VAT-registered taxpayer, Magnifico may treat the VAT as a cost
or expense, whichever is applicable. VAT withheld shall be remitted within 10 days
following the end of the month the withholding was made. 5(6)
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.
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5. Pursuant to Section 4.112-2 of Revenue Regulations No. 16-2005 (Consolidated
Value-Added Tax Regulations of 2005), as amended by Revenue Regulations No.
4-2007 (Amending Certain Provisions of Revenue Regulations No. 16-2005, as
Amended, Otherwise Known as the Consolidated Value-Added Tax Regulations
of 2005), which provides:
"SEC. 4.114-2. Withholding of VAT on Government Money Payments and
Payments to Non-Residents. —
xxx xxx xxx
(b) The government or any of its political subdivisions, instrumentalities or agencies
including GOCCs, as well as private corporations, individuals, estates and trusts,
whether large or non-large taxpayers, shall withhold twelve percent (12%) VAT,
starting February 1, 2006, with respect to the following payments:
(1) Lease or use of properties or property rights owned by non-residents; and
(2) Services rendered to local insurance companies with respect to reinsurance
premiums payable to non-residents; and
(3) Other services rendered in the Philippines by non-residents.
In remitting VAT withheld, the withholding agent shall use BIR Form No. 1600 —
Remittance Return of VAT and Other Percentage Taxes Withheld.
VAT withheld and paid for the non-resident recipient (remitted using BIR Form No.
1600), which VAT is passed on to the resident withholding agent by the non-resident
recipient of the income, may be claimed as input tax by said VAT-registered
withholding agent upon filing his own VAT Return, subject to the rule on allocation
of input tax among taxable sales, zero-rated sales and exempt sales. The duly filed
BIR Form No. 1600 is the proof or documentary substantiation for the claimed input
tax or input VAT.
Nonetheless, if the resident withholding agent is a non-VAT taxpayer, said passed-on
VAT by the non-resident recipient of the income, evidenced by the duly filed BIR
Form No. 1600, shall form part of the cost of purchased services, which may be
treated either as an 'asset' or 'expense,' whichever is applicable, of the resident
withholding agent.
VAT withheld under this Section shall be remitted within ten (10) days following the
end of the month the withholding was made."
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Endnotes
1 (Popup - Popup)
1. As defined in Section 5.1 of the License Agreement.
2 (Popup - Popup)
2. As provided under Section 5.2 of the License Agreement.
3 (Popup - Popup)
3. As provided under Section 5.2 of the Renewed License Agreement.
4 (Popup - Popup)
* Note from the Publisher: Copied verbatim from the official copy. The phrase "and (d)
above" no longer appears in RA 9337, the law amending this provision.
5 (Popup - Popup)
4. The VAT rate was increased to 12 percent beginning February 1, 2006, in accordance
with the Memorandum of the Executive Secretary to the Secretary of Finance dated
January 31, 2006, as circularized by Revenue Memorandum Circular No. 7-2006
(Publishing the Full Text of the Memorandum from Executive Secretary Eduardo R.
Ermita dated January 31, 2006 Approving the Recommendation of the Secretary of
Finance to Increase the Value Added Tax Rate from Ten Percent to Twelve Percent)
dated January 31, 2006.
6 (Popup - Popup)
5. Pursuant to Section 4.112-2 of Revenue Regulations No. 16-2005 (Consolidated
Value-Added Tax Regulations of 2005), as amended by Revenue Regulations No.
4-2007 (Amending Certain Provisions of Revenue Regulations No. 16-2005, as
Amended, Otherwise Known as the Consolidated Value-Added Tax Regulations of
2005), which provides:
"SEC. 4.114-2. Withholding of VAT on Government Money Payments and Payments
to Non-Residents. —
xxx xxx xxx
(b) The government or any of its political subdivisions, instrumentalities or agencies
including GOCCs, as well as private corporations, individuals, estates and trusts,
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whether large or non-large taxpayers, shall withhold twelve percent (12%) VAT,
starting February 1, 2006, with respect to the following payments:
(1) Lease or use of properties or property rights owned by non-residents; and
(2) Services rendered to local insurance companies with respect to reinsurance
premiums payable to non-residents; and
(3) Other services rendered in the Philippines by non-residents.
In remitting VAT withheld, the withholding agent shall use BIR Form No. 1600 —
Remittance Return of VAT and Other Percentage Taxes Withheld.
VAT withheld and paid for the non-resident recipient (remitted using BIR Form No.
1600), which VAT is passed on to the resident withholding agent by the non-resident
recipient of the income, may be claimed as input tax by said VAT-registered
withholding agent upon filing his own VAT Return, subject to the rule on allocation
of input tax among taxable sales, zero-rated sales and exempt sales. The duly filed
BIR Form No. 1600 is the proof or documentary substantiation for the claimed input
tax or input VAT.
Nonetheless, if the resident withholding agent is a non-VAT taxpayer, said passed-on
VAT by the non-resident recipient of the income, evidenced by the duly filed BIR
Form No. 1600, shall form part of the cost of purchased services, which may be
treated either as an 'asset' or 'expense,' whichever is applicable, of the resident
withholding agent.
VAT withheld under this Section shall be remitted within ten (10) days following the
end of the month the withholding was made."
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