Revenue Memorandum Order 14-2021: Streamlining of Procedures and Documents for the Availment of Treaty Benefits

The Bureau of Internal Revenue issued on 31 March 2021 Revenue Memorandum Order (“RMO”) No. 14-2021 streamlining the procedures and documents for the availment of treaty benefits.

Procedure

The BIR distinguishes between a Request for Confirmation and a Tax Treaty Relief Application (“TTRA”):

• If the withholding agent/income payor outright applies the exemption or preferential rate based on the documents provided by the payee (BIR Form 0901, Tax Residency Certificate, and copy of the Tax Treaty indicating the applicable preferential rate or exemption), the withholding agent shall file a Request for Confirmation with supporting documents on the propriety of the withholding tax rate applied.
• If the withholding agent/income payor uses the regular rate, the non-resident shall file a TTRA with supporting documents.

Timing of Filing

The Request for Confirmation may be done at any time after the payment of income subjected to withholding tax but in no case later than the last day of the fourth month from the close of the taxable year.

The non-resident may at any time after receiving the income/paying the tax due file the TTRA. As mentioned above, the TTRA is applicable when the withholding agent used the regular tax rate on the transaction.

Previously, under RMO 1-2000, the TTRA must be submitted beforethe occurrence of the first taxable event. Failure to file before the first taxable event would disqualify the taxpayer from availing itself of the treaty benefits. In the Deutsche Bank Ruling (G.R. No. 188550 dated 19 August 2013), the Supreme Court invalidated this requirement but the BIR has been inconsistent in its application of the regulations until RMO 14-2021.

Generally, only one Request for Confirmation or TTRA shall be filed for each transaction, except for contracts that are effective for more than one (1) year when an annual updating shall be made until the termination of the contract. A new Tax Residency Certificate, if already expired, and an updated BIR Form 0901 with relevant documents must be filed every year.

Requirements

The requirements in RMO 14-2021 are divided into two categories, namely: (1) General Requirements and (2) Specific Requirements. The General Requirements shall be submitted by all filers plus the Specific Requirements based on their specific transaction.

Administrative Refund

For TTRA applications, RMO 14-2021 allows the filing of the request for refund independently of the TTRA or simultaneously therewith.

If the refund claim was not filed simultaneously with the TTRA, the office where it was filed shall coordinate with, and defer to, the BIR’s International Tax Affairs Division (ITAD) for the resolution of the nonresident’s entitlement to treaty benefit. If, on the other hand, the claim was filed simultaneously with the TTRA, it shall be the responsibility of ITAD to endorse the claim for refund to the proper office that handles the processing of tax refunds after the resolution of the TTRA. At any rate, all issues relating to the application and implementation of treaty provisions shall fall within the exclusive jurisdiction of ITAD.

In either case, the claim for refund must be filed within the 2-year period under Section 229 of the Tax Code, as amended.

Certification

In lieu of a BIR Ruling and a Compliance Check Report, the BIR shall instead issue a certification duly signed by the Assistant Commissioner for Legal Service confirming the request for ruling or TTRA.

In cases of denial or a ruling of first impression, the BIR shall instead issue a BIR Ruling signed by the Commissioner or his/her authorized representative containing the factual and legal bases.

In either case, it shall be issued only to the filer or his authorized representatives indicated in the BIR Form 0901, otherwise, a notarized SPA is required.

An adverse BIR Ruling may be appealed before the Philippine Department of Finance within 30 days from receipt.

This above procedure shall also be applied to pending TTRAs as of effectivity of RMO 14-2021.

For dividends, interest and royalties, the submission of Certificate of Residence for Treaty Relief (“CORTT”) Form shall be discontinued. Nevertheless, previously submitted CORTT Forms shall still be forwarded to the concerned Revenue District Offices (RDOs) for compliance check.

Penalties

In case of late or non-filing of Request for Confirmation, the withholding agent will be liable for the penalties under the Tax Code, as amended by the TRAIN Law, including interest and compromise penalties.

Click here to read the entire text of RMO 14-2020.