Revenue Memorandum Order (RMO) No.14-2021 and Revenue Memorandum Circular (RMC) No.77-2021
The BIR reverts back to a single form of application for the application of tax treaty benefits. These issuances cover the rules, procedures, documentary requirements, refund, denials and penalty, and clarifications for the availment of Tax Treaty Benefits. The issuances abolished the use of the CORTT Form and introduced a request for confirmation on returns which already utilized treaty benefits.
- To settle at once all issues related to the availment of treaty benefits, to deliver efficient service to the taxpayers in compliance with the Ease of Doing Business Act and to clarify certain provisions of RMO 14-2020.
The general and specific documentary requirements were enumerated in the RMO No. 14-2021.It must be in the original or certified true copy and shall be pass to ITAD. These are some of the following documentary requirements:
Tax Resident Certificate (TRC)
- Withholding agent may rely on TRC to be submitted to the Bureau of Internal Revenue International Tax Affairs Division (BIR-ITAD)
Tax Treaty Relief Applications (TRRA)
- Only one TTRA shall be filed for each transaction except for long-term contracts where an annual updating shall be made until the termination of the contract.
- Taxpayers with pending TTRA for income earned in 2020 and prior years are given three (3) months from the receipt of a Final Notice to Submit Additional Documents or from the effectivity of this Order, whichever is later.
- Those who have been notified that their applications have been archived will no longer receive a Final Notice but are obliged to submit the lacking documents within four (4) months from the effectivity of RMO 14-2021.
- New TTRAs shall be processed within four (4) months from the submission of complete documents.
- Annual updating is not mandatory for the long-term contracts involving the payment of interests and royalties and other types of income where the condition for entitlement to treaty benefits is not dependent on time threshold
- Annual updating is mandatoryin the case of long-term contract of services where the existence of a PE (Permanent Establishment) in the Philippines is dependent on time threshold.
Request for Confirmation (RFC)
- The withholding agent shall file a RFC with ITAD at any time after payment of withholding tax but in no case be later than the last day of the fourth month, roughly 120 days following the close of each taxable year.
- The withholding agent is also required to file the RFC even if nonresident’s income was not subjected to tax in the Philippines in accordance with the relevant tax treaty.
- The withholding agent is not prevented from authorizing the nonresident or any other person to file such request for and on its behalf, provided that the latter is equipped with a Special Power of Attorney (SPA).
Audited Financial Statement (AFS)
- The audited AFS may be submitted by the foreign enterprise to prove that the income is not effectively connected with its PE in the Philippines, or Sworn Certification signed by a principal officer of the PE, if the AFS is not yet available at the time of filing.
- Dividend and capital gains are incomes that requires AFS.
- The BIR prefers the audited interim FS for capital gains transactions, in the alternative, the unaudited interim FS and lapsing schedule as of the date of transfer or alienation of property may be submitted.
Transfer pricing documentation (TPD)
- TPD may be submitted if nonresident needs to prove that the interest rate in loans or debt-claims transactions where the debtor and creditor are related parties imposed is at arm’s, length.
- All documents executed in a foreign country must either be authenticated by the Philippine Embassy stationed therein or apostilled, when applicable, to be acceptable in the Philippines.
- In processing RFCs and TTRAs, the BIR may likewise determine whether the subject transaction is subject to other internal revenue taxes under the Tax Code, as amended, including, but not limited to Value-Added Tax (VAT), Other Percentage Taxes, Documentary Stamp Tax (DST), and Donor’s Tax.
- Capital Gains should be filed at any time after the transaction, but shall not be later than the last day of the fourth month following the close of the taxable year when the income is paid or when the transaction is consummated.
- Other types of income should be filed at any time after the close of the taxable year, but not later than the last day of the fourth month following the close of such taxable year when the income is paid or becomes payable, or when the expense/asset is accrued or recorded in the books whichever comes first.
- If the RFC or TTRA is approved, the BIR will issue a Certificate of Entitlement to Treaty Benefit (COE) instead of the usual BIR Ruling.
- The COE will still contain the material facts of the case and a ruling confirming the non-resident’s entitlement to treaty benefit.
- The RMO rescind previous issuances on TTRAs. Thus, the simpler requirement of submitting CORTT forms for royalties, dividends and interest income will no longer apply. However, the BIR may still issue a Compliance Check Report to be consistent with the manner of approving similar applications prior to the effectivity of RMO 14-2021.
- To claim a refund, non-resident tax payer needs to file a duly accomplished BIR Form No. 1913 together with the letter-request within the two-year prescriptive period provided under Section 229 of the Tax Code, as amended.
DENIALS & PENALTY
- There are no automatic denials for failure to file the TTRA or RFC within the prescribed period, however, the penalty for late filing shall be imposed.
- Denials will be based on whether or not the nonresident has established and proved its entitlement to treaty benefit.
- Any violation of the provisions of RMO 14-2021 and failure to file a request for confirmation within the period herein prescribed shall be subject to penalties provided in Sections 250 and 255, and other pertinent provisions, of the Tax Code, as amended.
- The taxpayer may also likewise be charged with the crime of perjury under Article 183 of the Revised Penal Code for failure to supply correct and accurate information in the Application Form and other documents submitted in support of such application.
All adverse rulings are appealable to the Department of Finance within thirty (30) days from receipt thereof pursuant to existing rules and regulations.
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