BIR issues regulation on spontaneous exchange of taxpayer-specific rulings

Introduction
Scope of exchange
Potential exchange jurisdictions
Procedure for spontaneous exchange of taxpayer-specific rulings
Confidentiality
Further developments
Comment

Introduction

The Philippines is party to double taxation agreements (DTAs) with 43 countries. These DTAs contain exchange of information (EOI) provisions, which oblige contracting parties to exchange details that are needed to carry out the provisions of the DTAs or the domestic laws that concern the taxes applicable to the DTAs.

To this end, the Bureau of Internal Revenue (BIR) consistently develops its EOI programme and has, in the past decade, circulated administrative issuances to facilitate EOI. It first issued Revenue Regulation No. 10-2010, which implemented Republic Act No. 10021 (ie, the Exchange of Information on Tax Matters Act of 2009). The latest of these issuances, Revenue Regulation No. 11-2022 (RR 11-2022), prescribed the guidelines and procedures for the spontaneous exchange of taxpayer-specific rulings pursuant to DTAs. It took effect on 23 July 2022.

Spontaneous exchange of relevant information on taxpayer-specific rulings (the transparency framework) is so named because it takes place without prompting or prior request. The transparency framework provides tax authorities "with access to timely information on rulings that have been [issued] to a foreign related party or a permanent establishment (PE) of their resident taxpayer". It may be used to conduct risk assessments and mitigate base erosion and profit shifting (BEPS) concerns.

Scope of exchange

The transparency framework in the Philippines covers:

• past rulings — PE rulings or rulings concerning the existence or absence of a PE of a foreign enterprise in the Philippines that were issued during the following periods:
  • 1 January 2015 to 31 August 2017; and
  • 1 January 2012 to 31 December 2014, provided the rulings were still in effect as of 1 January 2015; and

• future rulings — rulings issued beginning 1 September 2017 and regarding:
  • rulings related to a preferential regime;
  • cross-border unilateral advance pricing arrangements (APAs) and any other cross-border unilateral tax ruling (eg, an advance tax ruling) covering transfer pricing or the application of transfer pricing principles;
  • cross-border rulings giving a unilateral downward adjustment to the taxpayer's taxable profits in the country giving the ruling;
  • PE rulings; and
  • related party conduit rulings.

Potential exchange jurisdictions

The rulings may be exchanged with the country of residence of the ultimate parent company, the country of residence of the immediate parent company and, depending on the type of ruling, the jurisdictions in the below table.

Procedure for spontaneous exchange of taxpayer-specific rulings

The BIR's International Tax Affairs Division (ITAD), through its EOI Section, is responsible for exchanging the rulings with the foreign tax authorities of the potential exchange jurisdictions.

For past rulings, the Rulings and Mutual Agreement Procedure (RMAP) Section of ITAD makes the determination of the potential exchange jurisdictions based on the rulings. If the past ruling does not contain sufficient information to enable identification of the exchange jurisdictions, the RMAP Section will apply the "best efforts" approach, which may include:

• checking of information included in the file supporting the tax treaty relief application, BIR Form No. 1709 (information return on transactions with related party), or any relevant transfer pricing documentation;
• obtaining information from domestic withholding agent, foreign taxpayer or its representative in the Philippines, the Securities and Exchange Commission or other possible information holders; and
• any other way of determining the necessary information.

For future rulings, the issuing office shall take necessary measures to ensure that all potential exchange jurisdictions are promptly identified. The BIR may request other relevant documents from the domestic and foreign taxpayers to obtain information on the potential exchange jurisdictions. The request for information related to exchange of future rulings must be signed by the respective heads of the BIR's offices.

Once the exchange jurisdictions have been identified, the issuing office shall transmit the ruling file to the EOI Section of the ITAD, which transmits the information through registered mail or encrypted electronic email using the template designed by the forum on harmful tax practices (FHTP) and the inclusive framework on BEPS within the following timelines:

• for past rulings, as soon as possible; and
• for future rulings, no later than three months after the issuance of the rulings.

The EOI Section of the ITAD is also tasked to receive rulings spontaneously exchanged by the treaty partners. If the ruling will assist tax examiners in the tax investigation, a copy of the ruling will be forwarded to the Revenue District Office, which has jurisdiction over the domestic taxpayer.

Confidentiality

The exchange shall be governed by the rules on confidentiality provided for in:

• the EOI provisions of DTAs, which typically state that the information shall be treated as secret and disclosed only to persons or authorities concerned with:
  • the assessment or collection of taxes;
  • enforcement or prosecution in respect of taxes; and
  • the determination of appeals in relation to taxes.
• section 270 of the National Internal Revenue Code, which penalises unlawful divulgence of trade secrets;
• Republic Act No. 10173 or the Data Privacy Act of 2012; and
• existing revenue issuances.

Further developments

Given the information necessary to identify potential exchange jurisdictions, the BIR may amend:

• the ruling process;
• the BIR forms to be submitted by taxpayers when requesting for confirmatory rulings; and
• the documentary requirements for such requests.

Comment

RR 11-2022 is the first regulation of its kind. The BIR's EOI Program previously dealt with requests for exchange of information only.

The issuance of RR 11-2022 is a response to the following observation made by the Organisation for Economic Co-operation and Development in its Harmful Tax Practices – 2020 Peer Review Reports on the Exchange of Information on Tax Rulings, Inclusive Framework on BEPS: Action 5:

[t]he Philippines does not have the necessary domestic legal basis to exchange information on rulings spontaneously. This is because the Philippines is legally prohibited from sharing information on, or copies of, rulings other than to the applicant taxpayer.

RR 11-2022 bridges this gap by providing the procedure and guidelines for the spontaneous exchange of taxpayer-specific rulings.

For further information on this topic please contact Leah C Abutan at SyCip Salazar Hernandez & Gatmaitan (SyCipLaw) by telephone (+632 8982 3500, +632 8982 3600, +632 8982 3700) or email ([email protected]). The SyCipLaw website can be accessed at www.syciplaw.com.

Carina C Laforteza, partner and head of the tax department, and Patrick Edward L Balisong, associate, assisted in the preparation of this article.