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Gentlemen :
This refers to your tax treaty relief application ("TTRA") dated December
21, 2010, on behalf of your client, ORPAK SYSTEMS, LTD. ("ORPAK"),
requesting confirmation that income derived by ORPAK from the sale to
PETRON CORPORATION ("PETRON") of pump controllers is not subject to
Philippine income tax pursuant to the Convention between the Government of
the Republic of the Philippines and the Government of the State of Israel for the
Avoidance of Double Taxation and the Prevention of Fiscal Evasion with
Respect to Taxes on Income ("Philippines-Israel tax treaty"). TcDAHS
Facts
It is represented that ORPAK is a corporation organized and existing
under the laws of Israel and is a resident of Israel within the meaning of
the Philippines-Israel tax treaty, based on its Amended and Restated Articles
of Incorporation and on the Certificate of Fiscal Residence issued by the Israel
Tax Authority on September 21, 2010; that ORPAK is situated at 31 Lechi
Street, Bhei-Barak, Israel; that ORPAK is not registered as a corporation or as
a partnership in the Philippines based on the Certification of Non-Registration
of Company dated December 6, 2010 issued by the Securities and Exchange
Commission; and that, on the other hand, PETRON is a corporation organized
and existing under the laws of the Philippines with office address at SMC Head
Office Complex, 40 San Miguel Avenue, 1550 Mandaluyong City, Philippines.
It is further represented that on November 5, 2010, ORPAK and
PETRON entered into a Point of Sale/Back Office Systems Sale Agreement,
whereby ORPAK shall sell and deliver to PETRON hardware and software for
the implementation of PETRON's point-of-sale (POS), back office systems
(BOS), and head office systems (HOS) in its 350 service stations and
stores ("Sites"); that ORPAK shall also provide a Head Office Systems (HOS)
application to enable the seamless transfer of information to and from these
Sites; that ORPAK shall deliver the pump controllers and software for all the
350 Sites by March 8, 2011, provided, however, that PETRON may identify and
propose additional service stations in the list of Sites under such terms and
conditions as to be agreed upon by the parties; that the POS, BOS, and
HOS ("Application Software") shall meet all the functional requirements
required by PETRON, which shall be forwarded to ORPAK in writing; that the
Application Software is an integrated solution for point-of-sale transactions
including sales and payment processing for the forecourt and the store, as well
as back-office transactions, such inventory management, purchasing, and
goods receipting, as well as Head Office Component that enable its users to
centrally manage data transfer to and from the sites; that ORPAK shall provide
the necessary peripherals for the integration of PETRON's pumps with the
Application Software; that ORPAK shall undertake development,
implementation and adaptation of the pump controller and the Application
Software to fit the specific requirements of PETRON; that the development,
implementation and adaptation shall all be performed in Israel; that in the event
that any of ORPAK's personnel comes to the Philippines, they shall perform
their duties under ORPAK's control and supervision in accordance with the
standards set out by PETRON; that ORPAK's personnel shall stay in the
Philippines for an aggregate of not more than six months within any twelve-
month period; that in consideration of the products sold by ORPAK to PETRON,
PETRON shall pay ORPAK as follows:
The Contract Price shall be the Total Solution Cost, as shown in the
following table:
1. Solution Cost Summary — Tax Inclusive
Php Reference Amounts Fixed US$ Amounts
ITEM (Same or Mix A B1 A x B1 B2 A x B2
Pump Type) # of
Sites
3. PETRON may not copy or permit its employees or any third party to
copy the software or use it for a purpose other than the one
stipulated;
4. PETRON may neither modify nor authorize third parties to effect
modifications, enhancements or alterations of the software without
prior authority from ORPAK; and
5. PETRON may not make a public performance of the software nor
publicly display the computer program without prior consent from
ORPAK;
and that ORPAK shall complete the delivery of the pump controllers and
the Application Software by March 8, 2011; and that in case of termination,
PETRON shall give ORPAK at least sixty days written notice prior to the
effective date of termination.
It is finally represented that the transaction subject of the 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 the Certification issued by the concurrent Chief
Executive Officer and President of ORPAK on November 9, 2010.
Ruling
In reply, please be informed that under Section 28 (B) (1) of the National
Internal Revenue Code (Tax Code) of 1997, as amended, such payments made
to ORPAK, being a foreign corporation not engaged in trade or business in the
Philippines, are subject to income tax in the Philippines at the rate of 30 percent
based on the gross amount thereof, 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): Provided, That, effective January 1,
2009, the rate of income tax shall be thirty percent (30%).
xxx xxx xxx"
However, said income may be exempt or partially exempt if subject to a
reduced rate only pursuant to a treaty obligation to which the Philippine
government is bound. Thus, Section 32 (B) (5) of the Tax Code of 1997, as
amended, provides, viz.:
"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 (i.e., TITLE II — TAX ON INCOME):
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." aDICET