Foreign Corporations in the Philippines

With the good business potentials in the Philippines, it is unsurprising that foreign corporations and entities are doing business in the Philippines in a way or another. A foreign corporation in the Philippines could either be a resident foreign corporation (RFC) or a non-resident foreign corporation (NRFC). A non-resident foreign corporation is one which does not have any presence in the Philippines but derives income in the Philippines such as extending foreign loans earning interest income, investing in shares of stocks of domestic corporations earning dividends, or leasing out assets in the country for a fee – aircrafts,sea vessels, cinimatographic films. A resident foreign corporation is one which establishes its physical presence in the Philippines – e.g. through an office,a branch or a sales office.

Foreign corporations or entities could do business in the Philippines as a domestic corporation or as a resident foreign corporation. As a domestic corporation or a local corporation registered with the Securities and Exchange Commission (SEC) and other government agencies in the Philippines, they can own equity of up to 100% depending on the type of industry, target market, and capitalization. A resident foreign corporation is a foreign corporate entity is being brought to the Philippines and secured a licensed to do business in the Philippines with the Securities and Exchange Commission in the Philippines. Hereunder are the common forms of resident foreign corporations qualified for a license to do business:

Philippine branch of foreign corporation

A philippine branch is a foreign corporation in the Philippines that is allowed by the SEC to do business in the Philippines in such activities it normally does in its home country. It is normally required a capitalization of US$200,000, unless its activities involve advance technology or employ at least fifty (50) direct employees where it could be capitalized at US$100,000.  A resident agent in the Philippines is required for formal communications and legal processes, and an initial investment of P100,000.00 actual worth of securities in the Philippines subject to incremental adjustment of 2% of its gross income. It is normally taxable in like manner as a local corporation – 12% value added tax in the Philippines, 30% corporate income tax in the Philippines, and such other applicable internal revenue taxes. Repatriation of its operational income in the Philippines is subject to 15% branch profit remittance tax.

It could be allowed to register with Philippine Economic Zone Authority (PEZA) for certain tax incentives – e.g. Income tax holiday, 5% special tax regime based on gross income. This entity is commonly used by business process outsourcing in the Philippines (BPO), call centers, and other outsourcing companies in the Philippines.

Philippine Regional operating headquarters (ROHQ)

A regional operationg headquarter in the Philippines is a special type of income producing foreign corporation in the Philippines. Income to be generated is limited to specific services rendered to its affiliates, branches, and subsidiaries within the Asia-Pacific region. It is required an inward remittance of capitalization amounting to US$200,000.00 and a resident agent in the Philippines. It is subject to special income tax rate of 10% and a 12% value added tax in the Philippines. Repatriation of its operational income in the Philippines is subject to 15% branch profit remittance tax. Managerial and technical expatriate employees are only taxed at 15% tax on gross compensation instead of the 5% – 32% proportionate rate to normal employees. This previlege also applies to Filipino employees under certain conditions. Read more…Tax Savings on Regional Operating Headquarters in the Philippines.

Philippine regional or area headquarters (RHQ)

A regional area headquarters is a non-income generating foreign corporation in the Philippines. Its main operation in the Philippines is to act as a supervisory, communications, or coordinating center for its subsidiaries, affiliates, and branches in the Asia-Pacific region. It is only a cost center that is not allowed to earn income and required to annually remit at least US$50,000.00 to cover the operational expenses. It is also not allowed to partake in any manner in the management of any subsidiary or branch office, or to solicit or market goods and services whether on behalf of its mother company or its branches, affiliates, subsidiaries or any other company.

Managerial and technical expatriate employees are only taxed at 15% tax on gross compensation instead of the 5% – 32% proportionate rate to normal employees. This previlege also applies to Filipino employees under certain conditions. A resident agent in the Philippines is likewise required.

Philippine representative office (PRO)

The representative in the Philippines is a foreign corporation licensed to do business in the Philippines to deal directly with the clients of its parent company abroad on information dissemination, as communication center, product promotion, and quality control of products for export. It is not allowed to earn income in the Philippines and is fully subsidized by the parent company as a cost center in the Philippines being required to make an annual inward remittance of at least US$30,000 to cover operating expenses.

Summary

The above discussions would illustrate the options available to a foreign investor intending to do business in the Philippines. Proper structure would depend on the nature of intended operations in the Philippines and a good structure would be a good tax savings. Securities and Exchange Commission (SEC) is a friendly government agency for securing a license to do business in the Philippines as a mandatory requirement for a foreign corporation to do business in the Philippines.

By: Garry S. Pagaspas

Under Section 2(3) of Republic Act  No. 8756, Regional Operating Headquarters (ROHQ)  is defined as a foreign business entity which is allowed to derive income in the Philippines by performing the following qualifying services to its affiliates, subsidiaries or branches in the Philippines, in the Asia-Pacific Region and in other foreign markets:

1. general administration and planning
2. business planning and coordination
3. sourcing and procurement of raw materials and components
4. corporate finance advisory services
5. marketing control and sales promotion
6. training and personnel management
7. logistic services
8. research and development services and product development
9. technical support and maintenance
10. data processing and communication, and,
11. business development

An ROHQ is actually a foreign corporation that is licensed to do business in the Philippines to strictly engage in the above specific and limited services. It shall offer its services only to its affiliates, branches or subsidiaries, as declared in its registration with the SEC. It shall not directly and indirectly solicit or market goods and services whether on behalf of their mother company, branches, affiliates, subsidiaries or any other company. In same manner, it cannot directly or indirectly engage in the sale and distribution of goods and services of its mother company, branches, affiliates, subsidiaries or any other company.

How Tax Savings Operates

The above strict and limited operations of an ROHQ has a tax purpose. To my mind, tax savings is the end view of the restrictions and hereunder are the material tax considerations for the use of ROHQ:

• Special income tax rate of 10% of their taxable income. As compared to a Philippine branch tax at 30%, ROHQ structure is a 20% advantage.
• Special alien employee tax of 15% based on gross compensation applicable to managerial or technical alien employees of ROHQ.  An employee is normally taxed at 5-32% of taxable net income after deducting personal exemptions allowed under certain conditions (p50,000.00 basic personal exemptions, and P25,000.00 personal exemptions for every qualified dependent child up to four or maximum of P100,000.00 in a year). This is a final withholding tax and the expatriate employee may no longer need to file annual income tax return.
• 15% special alien tax applies to Filipinos holding similar managerial or technical positions as that of expat employees. For the purpose, the tax authorities – Bureau of Internal Revenue (BIR) provides the following requirements under Revenue Regulations No. 11-2010 issued on October 26, 2010 (Click to view regulation):

1. Position and function test as a managerial or technical employee by actual exercise of such nature of work and not simply by designation of position in ROHQ
2. Compensation threshold test where gross annual taxable income of at least P975,000.00 (US$22,674.42@P43/US$) or approximately P81,250 (US$1,889.53@P43/US$) a month.
3. Exclusivity test or that the employee must be exclusively an employee servicing a single ROHQ.
4. Filing of BIR Form No. 1947 for declaration. (Click to view Form)

• 15% branch profit remittance tax upon remittance of the operational income derived from Philippine sources by the ROHQ to its head office abroad. While this may be of similar rate to inter-corporate dividend tax of non-resident foreign corporation, this, does not require a tax treaty relief (TTRA) from the International Tax Affairs Division (ITAD) Ruling from the BIR.

Other tax implications of ROHQ would be similar to the rest. It is subject to 12% VAT for services rendered in the Philippines, and zero-rating for services to related party clients abroad under certain conditions.

ROHQ Registration in the Philippines

After having learned of the above tax savings and advantages, your next move is to make a complete registration of an ROHQ in the Philippines. Since ROHQ is a foreign corporation licensed to do business in the Philippines, you need to choose a parent company with affiliates, subsidiaries or branch office in the Asia pacific region. Some uses a Hong Kong company, or a Singaporean company for ease of set-up perhaps. But you can use one from other foreign countries of choice. Hereunder are the common registration requirements:

1. Name verification slip with the name of the foreign corporation hyphenated with – Philippine regional operating headquarters. P40.00 for every 30 day reservation up to ninety (90) days, subject to extension;
2. Endorsement from the Board of Investments;
3. Certification from the Philippine Consulate/Embassy or from Philippine Commercial Office, or from the equivalent office of the DTI in the foreign country that said applicant is an entity engaged in the international trade with affiliates, subsidiaries or branch offices in the Asia Pacific region and other foreign markets; and
4. Authenticated certification from the principal officer (e.g. secretary’s Certificate) of the foreign company to the effect that the foreign company had been authorized by its Board of Directors or governing body to establish ROHQ in the Philippines, appointing a resident agent, and authorizing opening a treasurer-in-trust account (TITF) account in the Philippines and appointing an authorized representative for the purpose;
5. Initial capitalization and remittance of US$200,000 or its Peso equivalent evidenced by Certificate of Inward Remittance and Certificate of Bank Deposit from the bank where the TITF account has been opened;
6. Appointment of resident agent to act as the point person for formal communications in the Philippines.

Upon approval and release of the License to Do Business in the Philippines by the SEC, registration with the following agencies would follow:

• Bureau of Internal Revenue (BIR) for tax compliance registration;
• Business Permits and Licenses from the Local Government Unit (LGU) of location;
• Social Security System registration for mandatory social security benefits of its employees;
• Philippine Health Insurance Corporation (PHIC or PhilHealth) for mandatory health benefits of its employees;
• Home Development Mutual Fund (HDMF) for mandatory housing benefits of its employees
• Foreign investments registration with the Central Bank of the Philippines, if applicable

Summary

The above discussion would mean that if the intended market of services of the proposed entity are related parties abroad, ROHQ is a good choice because of its income producing nature from its services and the tax perks attached to it. Process may take a while, approximately thirty (30) days from date of SEC approval and release of License to do Business.

(Garry S. Pagaspas is a Resource Speaker with Tax and Accounting Center, Inc. He is a Certified Public Accountant and a degree holder in Bachelor of Laws engaged in active tax practice for almost two (2) decades now and a professor of taxation for more than four (5) years. He had assisted various taxpayers in ensuring tax compliance and tax management resulting to tax savings rendering tax studies, opinions, consultancies and other related services. He has likewise assisted a number of investors in the Philippine structure and in the complete registration of the same with the various government agencies in the Philippines. For comments, you may please send mail at garry.pagaspas(@)taxacctgcenter.ph.

Disclaimer: This article is for general conceptual guidance only and is not a substitute for an expert opinion. Please consult your preferred tax and/or legal consultant for the specific details applicable to your circumstances. For comments, you may also please send mail at info(@)taxacctgcenter.ph, or you may post a question at Tax and Accounting Center Forum and participate therein.

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