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PCX to join global policy meeting

GLOBAL plastic credit platform PCX revealed on Monday that it will join the Intergovernmental Negotiating Committee (INC) meeting as an official observer set on Nov. 13-19 in Nairobi, Kenya.

Nanette Medved-Po, PCX chairperson and founder, who will be part of the Philippine delegation, will be providing inputs on designing and implementing financing mechanisms to reduce plastic pollution, especially in the marine environment.

The INC is the high-level group directed by the United Nations to forge a landmark international law against plastic pollution.   

In this third meeting, the INC is expected to cover the circular economy with the aim of establishing a legally binding instrument on plastic pollution, including the marine environment, by 2025.

“We actually could be the generation that solves the plastic pollution crisis. Even in a very imperfect world, we have proven that plastic waste can be cleaned up at scale. That signals that there is hope,” Ms. Medved-Po said.

She said PCX also aims to provide feedback and share insights during the meeting on how the Extended Producer Responsibility (EPR) mechanism could be “effectively executed” given the group’s experience in dealing with compliance to the EPR Act in the Philippines.   

Under the EPR Act, large corporations are directed to recover or divert at least 20% of their plastic packaging footprint by the end of 2023; then up to 40% by next year, and by another 10% every year until at least 80% is recovered or diverted by 2028.   

Founded in 2019, PCX partners with companies and local governments to clean up plastic waste and divert it from nature by supporting accredited project partners that collect and responsibly process the waste in a fully traceable platform.

At present, PCX has diverted more than 55 million kilograms of plastic waste from nature and driven 67,000 tons of carbon reduction from coal replacement. — Revin Mikhael D. Ochave

TUCP bats for agro-industrial hubs

THE GOVERNMENT should set up more agricultural and industrial hubs in rural areas to provide more local opportunities for workers and, at the same time, decongest urban metropolises, the Trade Union Congress of the Philippines (TUCP) said.

Carlos Miguel S. Oñate, TUCP legislative officer, said the state’s employment plan should also include a national railway system that would connect agricultural and industrial hubs which would promote rural development and job generation.

“Particularly, in the near term, it will generate millions of construction jobs with significant multiplier effects of creating jobs throughout their supply chains,” he told BusinessWorld in an e-mail.

Mr. Oñate also said the government needs to boost its efforts to provide more environmental jobs or green jobs that would create more sustainable businesses.

Last Sept. 27, President Ferdinand R. Marcos, Jr. signed into law the creation of a national employment roadmap and an inter-agency body to draft a national strategy for job generation.

The recently signed law aims to boost the competitiveness of the workforce through upskilling and reskilling programs.

The interagency council, which will be headed by the National Economic and Development Authority (NEDA), Trade and Labor secretaries, will be tasked to assist local government units in implementing job recovery programs.

Last week, the Philippine Chamber of Commerce and Industry (PCCI) said the government should develop the agriculture and aquatic sectors to provide more job opportunities for Filipinos.

Echoing this sentiment, the TUCP believes that boosting employment through agro-industrial hubs also “ensures food security by significantly reducing the time and distance between agricultural production and the markets.”

“Philippine agriculture will then grow into a highly productive industry,” it said. — John Victor D. Ordoñez

5 NCR road repairs ongoing

MMDA

MOTORISTS are advised to take alternate routes as five roads in Metro Manila are scheduled for repair and reblocking from Oct. 31, 11 p.m. to Nov. 6, 5 a.m., the Metro Manila Development Authority (MMDA) announced on Monday.

According to an MMDA traffic advisory, the Department of Public Works and Highways is set to conduct repairs and reblocking on the following roads: C-5 Road (SB), Lane 2 (Fronting Shell), Pasig City; EDSA (SB), Annapolis to Connecticut (Intermittent, Outer Lane), San Juan City; EDSA (SB), After Malibay Bridge (Outer Lane), Pasay City; EDSA (NB), Between G. De Jesus St. to Gen. Tirona St., Caloocan City; and Rizal Ave. Exit. (NB), Between 11th Ave. and Bustamante St. (1st lane), Caloocan City.

MMDA said affected roads will be fully passable by 5 a.m. on Nov. 6, depending on prevailing weather conditions. — Jomel R. Paguian

‘Holiday’ belongs to CDO hams

FOODSPHERE, INC., the manufacturing company behind the brand CDO, warned other companies against using its “Holiday” trademark, citing that it is a form of infringement and unfair competition.

“Usage of the said trademark amounts to infringement of the company’s intellectual property rights, as well as unfair competition, as defined under Sections 147 and 168, respectively of Republic Act No. 8293 or the Intellectual Property (IP) Code of the Philippines,” Foodsphere said in a statement on Monday.

Foodsphere said that it is the registered owner of the trademark which the company has been using in its food products, particularly on Christmas hams, since the 1970s.

The company demanded “all food manufacturers, distributors, retailers, restaurants and other establishments to immediately cease and desist from using ‘Holiday Ham.’”

“We’ve built trust around the ‘Holiday’ brand for decades, and we are committed to safeguarding it not just for our company, but for the consumers who have trusted us throughout the years,” said Patricia M. Magbanua, corporate affairs and communications head of Foodsphere.

Foodsphere cited that under Section 147 of R.A. 8293, the owner of a registered mark shall have the exclusive right to prevent all third parties not having the owner’s consent from using it in the course of trade as a likelihood of confusion shall be presumed.

Furthermore, under Section 168, any person may be deemed guilty of unfair competition if they are selling their goods which have a feature that would likely influence purchasers to believe that the goods offered are those of the trademark owner.

Foodsphere, Inc. warned that it “would be compelled to take appropriate civil, criminal, and administrative actions in court against violators of its Intellectual Property (IP) rights and hold them liable for damages and attorney’s fees.” — Justine Irish D. Tabile

Promote PHL to top foreign visitors — congressman

A CONGRESSMAN called on the tourism industry on Monday to promote the Philippines to its top visitors to ensure more visits until next year.

“We would urge the DoT (Department of Tourism) to consider shifting to rifle marketing — as opposed to shotgun marketing — and to concentrate on our top five suppliers of foreign visitors, namely South Korea, the United States, Japan, China, and Australia,” Quezon City Rep. Marvin D. Rillo, also the vice chairperson of the House tourism panel, said in a statement.

Mr. Rillo said “rifle marketing” targets specific markets and ensures more visitors compared to “shotgun marketing” or promotions catered to a wider market.

The Philippines received about 4.01 million visitors from Jan. 1 to Sept. 29 this year, closing in on the department’s target of 4.8 million visitors for the year.

Out of the total number, 91.58% or 3.67 million are foreign visitors and 8.42% or 337,426 are overseas Filipinos.

The visits contributed P316 billion to the economy and resulted in 5.35 million tourism-related jobs, Tourism Secretary Christina G. Frasco said in September.

Based on DoT data, topping the country’s visitors are the 1.04 million from South Korea, followed by 679,090 from the United States, and 221,671 are from Japan.

Visitors from China were at 194,258, while there 187,143 were from Australia, 164,168 from Canada, 146,396 from Taiwan, 114,096 from the United Kingdom, 107,674 from Singapore, and 72,008 from Malaysia.

“Their spending here contributes in a big way to creating new employment opportunities for Filipinos in accommodation, transport, food and beverage services, entertainment, and other economic activities,” Mr. Rillo said.

The Tourism Promotions Fund has been allocated a P1.26-billion budget for next year, he added. — Beatriz Marie D. Cruz

PHL can attract EV manufacturers if market is strong, AmCham says

STOCK IMAGE | Image by Sabine Kroschel from Pixabay

THE American Chamber of Commerce of the Philippines, Inc. (AmCham) said a strong domestic market may persuade electric vehicle (EV) manufacturers to set up operations here.

“You need to have the right investment climate (and) you need to have the right incentives. We gave them the incentives, now then we’ve got to give them the market,” Ebb Hinchliffe, executive director of AmCham, told reporters last week.

“Nobody is going into the market if they don’t have somebody buying the product. So, the big thing is to push the market,” he added.

Incentives for EVs are laid out in Republic Act No. 11697, also known as the Electric Vehicle Industry Development Act (EVIDA).

Chapter VI of the EVIDA law requires the government to providing fiscal incentives, non-fiscal incentives, and financial assistance to help the industry and market develop.

The law authorizes incentives under the Tax Reform For Acceleration and Inclusion to eligible parties, including eight years of duty exemptions for registered participants importing charging stations in completely built unit form.

An Executive Order also modified tariffs on EVs, temporarily reducing tariffs on completely built-up EV units to 0 for five years and on certain parts and components of EVs to 1%.

“We advocated for the passing of the EV bill and we were thrilled when we got it. (However), we wanted motorcycles and other areas included and we also wanted hybrid EVs (HEVs) in it, which I think still should be in there,” he said.

He said that inclusion of HEVs will push the development of the Philippine EV market.

“Right now… you’ll see a lot of EV charging stations and not enough EVs. So, we really need to push now to get more and I’d love to see manufacturing of EVs here in the Philippines. We passed the bill, so we should take advantage of it,” he added.

Asked about the government’s plans to subsidize EV buyers, he said: “Most of the time AmCham doesn’t… support subsidies because once you take them away, it hurts. Once you give them, it’s hard to take them away.”

“But that kind of incentive will be helpful… anything we can do to get air polluting cars off the street or air polluting jeepneys off the streets is a plus. And those subsidies will help,” he added.

On Oct. 20, the Department of Trade Industry (DTI) launched the Electric Vehicle Incentives Scheme (EVIS) whichhas a target of four million locally manufactured EVs on the roads within 10 years.

The EVIS will provide incentives to both the supply side through fiscal incentives under the Corporate Recovery and Tax Incentives for Enterprises Law, and on the demand side through a consumer subsidy program.

The government will provide consumers direct financial rebates or discounts ranging from P10,000 to P500,000 when they purchase EVs.

Currently, EVIDA allows owners of battery electric vehicles, or those powered solely by an electric battery, to enjoy a 30% discount on the motor vehicle user’s charge imposed by the Land Transportation Office, while owners of HEVs enjoy a 15% discount. — Justine Irish D. Tabile

Devolution dialogue with NG has stalled, city official says

PHILSTAR FILE PHOTO/ RELEASE JBROS CONSTRUCTION CORP.

By Luisa Maria Jacinta C. Jocson, Reporter

The National Government (NG) needs to open up more avenues for discussion with local government units (LGUs) in order to efficiently devolve its functions, a city official said.

“The main challenge there is we’re not able to talk with the national agencies on the (functions that) will be given to us. There is a certain part of the Mandanas-Garcia ruling (where) certain functions will be devolved to the cities, but we haven’t heard from the NG,” Tagbilaran City Administrator Cathelyn O. Torremocha told BusinessWorld on the sidelines of a forum last week.

“It would have been better if there was also coordination and collaboration and meetings with these national agencies (whose) functions will be devolved to us,” she added.

The Supreme Court’s Mandanas-Garcia ruling granted LGUs a larger share of national taxes. In response, the NG sought to push some of its functions to the local level, to reflect the greater level of funding that the ruling placed in the hands of LGUs.

The devolution process was initially expected to be completed by 2024. Early this year, President Ferdinand R. Marcos, Jr. ordered officials to study prolonging the devolution timetable to give LGUs more time to transition.

The Department of Budget and Management (DBM) said it is studying the possibility of extending the devolution to 2027.

Ms. Torremocha said that fully devolving by 2027 would be feasible if the devolution process was “properly coordinated and the transition is smooth.”

She said the readiness of LGUs must be taken into account. “Many will be affected. We have employees that will be affected by those positions the NG will devolve. Where will they go? Are they going to be in the local government? It’s difficult. (The process) should be smooth,” she said.

Ms. Torremocha said Tagbilaran City is continuing to prepare for the devolution.

“We prepared the offices and also the budget of these positions we have to create in order to address the functions that will be devolved to us. That was (sometime) during 2022. In 2023, we have the budget for all those devolved (functions), especially those in the health sector, engineering, and agriculture,” she said.

USAID Urban Connect Activity Chief of Party Alex B. Brillantes, Jr. said that the timetable for devolution should be reviewed.

“It should be recalibrated. We cannot rush the local government units. It takes a mindset change. The NG is willing to give, but having said that, we have to look at the absorptive capacity of the LGUs,” he said at the sidelines of a forum last week.

Bienvenido S. Oplas, Jr., president of a research consultancy and of the Minimal Government Thinkers think tank, said that the NG should encourage more competition to better capacitate LGUs.

“Encourage more LGUs competition. Infrastructure competition, peace and order competition, power generation and distribution competition, tax competition, etc. to attract more tourism and investments,” Mr. Oplas said in a Viber message.

“When there is no LGU competition, there is no self reliance. LGUs are dependent on the NG for more funding yearly. If there is competition, it’s up to them, so that national government funding will only complement their local revenue mobilization because they want to do more,” he added.

Mr. Oplas also said the devolution process should be done as early as 2025.

“For me, the problem is that many national agencies, the departments of Health, Education, and Social Welfare and Development, still want more national central planning and implementation of socio-economic projects and do not want their powers and funding to be reduced via devolution,” he said.

The DBM has announced that the National Tax Allotment (NTA) to be set aside for LGUs next year is pegged at P871.38 billion.

The NTA is an automatic allocation and is equivalent to 40% of the national taxes collected three years prior.

This is 6.23% higher than this year’s NTA. The number of LGUs is at 43,670, consisting of 83 provinces, 148 cities, 1,486 municipalities and 41,953 barangays.

Municipalities are entitled to an NTA of P295.47 billion. The correspondng amounts for cities, provinces, and barangays are P201.22 billion, P200.42 billion, and P174.28 billion, respectively.

According to the DBM,  LGUs are required to appropriate at least 20% of their NTA on development projects and at least 5% of their estimated revenue from regular sources to their Local Disaster Risk Reduction and Management Fund.

Meanwhile, the Department of Finance (DoF) said that the recently signed law updating the income classification of LGUs will help boost local revenue and improve fiscal management.

“This law is a significant milestone that resolves the long-standing issue of outdated LGU income classification. It paves the way for a more responsive approach to foster local autonomy and empower LGUs to unleash their full economic potential,” Finance Secretary Benjamin E. Diokno said in a statement.

It will also help the DoF “efficiently and systematically determine LGUs’ financial capabilities and fiscal positions in line with the economy and local development.”

Last week, President Ferdinand R. Marcos, Jr. signed into law Republic Act (RA) No. 11964 or the “Automatic Income Classification of Local Government Units Act.”

The law sets guidelines for an “equitable and rational system of income classification to effectively accelerate and improve the quality of economic growth and distribute national resources based on the needs of communities.”

Under the law, provinces, cities, and municipalities are classified into five classes based on their average annual regular income.

“The Secretary of Finance, in consultation with the National Economic and Development Authority and the concerned LGU League, will have the authority to adjust the income brackets according to the actual growth rate of the annual regular income from the last income reclassification,” according to the law.

The reclassification is conducted every three years to “conform with the prevailing economic conditions and overall financial status of local governments.”

The first general income reclassification is to be carried out within six months of the law becoming effective.

The Bureau of Local Government Finance has reported that the operating income of LGUs rose 26% to P1.1 trillion last year.

Orica expanding PHL operations on bullish outlook for mining

ORICA.COM

By Adrian H. Halili, Reporter

Australian-owned mining services company Orica Philippines, Inc. is placing a bullish bet on the mining industry by expanding its operations here, an official said.

“Going forward I think there is a lot to be optimistic about. There are some world class deposits here in the Philippines. As they get developed the technology that Orica offers is going to be relevant,” Gordon Wallace, country head for Orica in the Philippines, told BusinessWorld in an interview.

Mr. Wallace said that the expected growth of the mining industry has encouraged the company to invest in its Philippine operations.

“We are eagerly awaiting the re-emergence of the mining industry growth here is the Philippines… and we are resourcing ourselves (for) the future,” he said.

“As an organization we have a lot to offer to the Philippines. We have made very large technology investments and we have a portfolio of products and services that would be applicable here,” he added.

Orica provides commercial explosives and blasting systems to the mining, quarrying, oil and gas, and construction markets. Its parent firm is Australia Stock Exchange-listed Orica Ltd.

“The industry is starting to recover and build some momentum; construction activity is back from the pandemic lows and mine sites are expanding. So that leads to a positive growth outlook for us,” he said.

He said, however, that the company does not expect any immediate changes to the market due to the slow process of mining approvals.

“It does take a very long time to get a significant mining project off the ground… the wholesale change of the industry (will) take time,” he added.

Mr. Wallace added that the company’s electronic blasting systems and environment monitoring technologies will help miners navigate a regulatory environment that expects them to operate more safely and responsibly.

“As mines get closer and closer to communities, that aspect of the mining cycle gets more sensitive and important. Going forward (these technologies) are going to be a big focus for the Philippines,” he added.

He said that Orica’s wireless blasting system WebGen allows the use of less risky mining methods.

“Particularly with a focus on risk reduction and safety, it allows the mining method to fundamentally change so that we can (remove) people from the dangerous areas of the mine and use mechanization instead,” he added.

He said that as mineral deposits get deeper the company’s proprietary technology allows more companies to manage risk.

NDC targeting five more co-investment partners

The National Development Co. (NDC), the investment arm of the Department of Trade and Industry (DTI), said it is looking to sign up five more co-investment partners next year.

“If we get the word out, I think before the middle of next year, we can get five more co-investment partners (to bring the total to) ten,” Alewijn Aidan K. Ong, NDC assistant general manager for business development, said. 

NDC’s current slate of accredited co-investment partners are Idea-Space, Investment & Capital Corp. of the Philippines, Gobi-Core Philippine Fund, Foxmont Capital Partners, and Real Tech Holdings Co., Ltd.

“We currently have five accredited partners… (but) the more the co-investment partners, the easier for us to reach out to more companies (to invest in),” Mr. Ong said.

He said prospective partners are venture capital firms like Kaya Founders and Investree Philippines. “And then we have another one that we want to have discussions with to increase the pool of our co-investment partners,” he added.

The DTI, under Republic Act 11337 or the Innovative Startup Act, is authorized to operate the Startup Venture Fund via the NDC.

“The SVF allows the NDC to invest in Philippine-based and registered startups with the goal of jump-starting the startup ecosystem,” the NDC said.

The SVF uses a co-investment model dor investing, requiring the NDC to partner with an accredited private entity before investing.

Mr. Ong said that increasing the pool will be vital in reaching its target of investing in 10 more startups in 2024.

“This year we will try to complete the SVF process for one more company. But if we are not able to complete it this year, we will go full blast next year,” he said.

“Next year, we made a promise that six to 10 startup companies will be funded through SVF,” he added, citing that it will be focused on investing in innovative companies that promote food, water, and power security, among others.

Tech startup SolX Technologies, Inc. received a P22-million investment from NDC and Japanese co-investment partner Real Tech after signing a memorandum of understanding last week.

The event marked the first deployment of the SVF through NDC and Real Tech’s first investment in a Philippine company.

“Right now, since the investment in SolX is the first, the balance of P489 million is still available,” Mr. Ong said, referring to NDC’s available SVF funding.

“Next year, if all goes well and we will be able to disburse, maybe we can add around P250 million or P500 million,” he added.

The single investment limit is 15% of the  SVF for each company, which is not to exceed 40-50% of the company’s equity. — Justine Irish D. Tabile

RE share should be 80% if PHL serious about meeting Paris promises — think tank

STOCK PHOTO | Image by PublicDomainPictures from Pixabay

The share of renewable energy (RE) in the Philippines’ power mix should be at laest 80% by 2030 to meet the country’s Paris climate commitments, an energy think tank said, citing a German study.

“We should be measuring our ambition based on whether it (aligns with) our commitment of 1.5° centigrade (maximum temperature rise) under the Paris agreement,” Avril de Torres, deputy executive director of the Center for Energy, Ecology, and Development, said.

The Paris agreement is al treaty that aims to keep the rise in global temperatures rise below 2°C. The Philippines is a signatory. 

Ms. de Torres said that the Philippine Energy Plan only expresses the country’s action plans in comparison to neighboring countries, which allows the Department of Energy (DoE) to say that the Philippines is ambitious.

Citing a study from German-based nonprofit organization Climate Analytics, Ms. de Torres said that meeting the Paris commitment would require a renewable energy share target of 80-83% by 2030 and 100% by 2040.

“Our ambition of 35% is not even half that is required if we are to align with the 1.5 degree Centigrade target,” she said.

As of the end of 2022, RE accounted for about 22% of the Philippine energy mix, with coal-fired power plants acconting for almost 60%. The government wants to boost the RE share to 35% by 2030 and to 50% by 2040.

“It’s good that the (plan) to retire (coal-fired power plants) has started but where is the  plan to meet the 1.5 degree target?,” she said.

Ms. de Torres made her remarks during the anniversary of the moratorium for approving greenfield coal-fired power projects.

As of July, the Philippines had coal-fired installed capacity of 12,472 megawatts (MW), according to the DoE.

To date, coal power projects with a total capacity of 2,405 MW are in the “committed” stage, with 1,520 MW in the “indicative” stage.

Committed projects are those that are already in the construction phase or have a financial close in place, whereas indicative projects are those that are currently in the predevelopment stage.

The DoE said in August that its plan to retire or repurpose power plants will involve up to 5,000 MW.

Ms. de Torres said that the projected capacity “is not enough” as there is still “no phaseout plan” for coal, gas, and oil. — Sheldeen Joy Talavera

DA opens hog demonstration farm in Pangasinan

REUTERS

THE Department of Agriculture (DA) said that it opened a swine multiplier and technology demonstration (SMTD) farm in Pangasinan, which will serve the hog repopulation needs of the Ilocos Region.

“We will repopulate our hog sector through these swine technology centers,” Agriculture Undersecretary Deogracias Victor B. Savellano said.

The DA opened the facility in Natividad, Pangasinan in response to the losses in the hog herd caused by African Swine Fever (ASF).

“We have put in place biosecurity measures that use a standard shelter design for hogs to keep small farms safe from ASF,” he added.

He said that the facility makes breeders available to hog farmers in the region.

“The facility will provide support to local raisers… by (also) producing adequate and quality stock to supply DA and other agencies’ needs for sustainability in production,” he added.

The DA has allocated about P40 million to build four SMTDs in the region. The three other facilities will be in Manaoag, Pangasinan and Candon and Vigan, Ilocos Sur. The other facilities are also set to be launched this year.

The cost of each facility is about P10 million,  including tunnel vent equipment, 30 breeder sows, and feed.

“The technology centers will be sites through which good swine genetics will be disseminated to far-flung provinces,” Mr. Savellano said.

“By training farmers in biosecurity measures, Philippines will be able to raise hog the inventory and pork supply,” he added. — Adrian H. Halili

Transfer pricing and business restructuring

Bloomberg reports that business restructuring, specifically global mergers and acquisitions (M&A) activity, hit $5.9 trillion in 2021, crushing the previous record of $4.2 trillion set in 2015. Grant Thornton (GT) LLP has since estimated that global M&A activity slowed in 2022 to $3.7 trillion. Most analysts are predicting that we could see a return to pre-2021 levels of activity.

However, a new GT survey of M&A professionals found that, after a lengthy respite, M&A activity is expected to rebound in the second half of this year.  In fact, the survey showed that 99% of respondents expect deal volume to increase over the coming months, with 11% forecasting a significant increase.

WHAT IS BUSINESS RESTRUCTURING?
In the context of this article, business restructuring refers to the cross-border reorganization of commercial or financial relations between associated enterprises.

Business restructuring may often involve the centralization of intangibles, risks, or functions with the “profit potential” attached to them. As an example, consider the conversion of full-fledged distributors (that is, enterprises with a relatively higher level of functions and risks) into limited-risk distributors, marketers, sales agents, or commissionaires (that is, enterprises with a relatively lower level of functions and risks) for a foreign associated enterprise that may operate as a principal.

According to the Organization for Economic Cooperation and Development (OECD) Transfer Pricing Guidelines, relationships with third parties (e.g., suppliers, subcontractors, customers) may be one reason behind a restructuring. Some of the reasons reported by businesses pursuing restructuring include the wish to maximize synergies and economies of scale, to streamline the management of business lines and to improve the efficiency of the supply chain, taking advantage of the development of web-based technologies that have facilitated the emergence of global organizations.

Furthermore, business restructuring may be needed to preserve profitability or limit losses, e.g., in the event of an overcapacity situation or in a downturn economy.

BUSINESS RESTRUCTURING AND TAXES
Multinational enterprises (MNEs) are free to organize their business operations as they see fit. Tax authorities cannot dictate how MNEs design their structure or where they should locate their operations. Business restructuring arrangements, though, may be motivated by the desire to obtain tax benefits. However, this does not in itself warrant a conclusion that it is a non-arm’s length arrangement.

Tax authorities, on the other hand, have the right to determine the tax consequences of the structure put in place by an MNE. This means that the pricing for restructured transactions should be determined according to the arm’s length principle. The arm’s length principle requires that the prices charged for transactions between related parties be the same as those charged for similar transactions between unrelated parties. This is important because transfer pricing can have a significant impact on the tax liabilities of the related parties and the tax revenue of the countries in which they operate.

In view of business restructuring, the Bureau of Internal Revenue (BIR) in Revenue Audit Memorandum Order (RAMO) No. 1-2019 states that a reduction of profits in a business restructuring is acceptable when the functions performed, assets employed, and risk assumed are actually transferred to an associate. It is viewed as commercially rational for a multinational group to restructure in order to obtain tax savings.

However, if, despite the reduction of profit, it is found that the local entity continues to perform the same functions and bears the same risks, the BIR will make the necessary adjustments. This is because, in an arm’s length situation, an independent party will not restructure its business if it results in a negative outcome, where it has a realistic option available not to do so.

TP considerations in business restructuring:

1. Identifying the transactions that make up the business restructuring with precision.

There can be group-level business reasons for an MNE group to restructure. However, it is worth emphasizing that the arm’s length principle treats the members of an MNE group as separate entities rather than as inseparable parts of a single unified business. As a consequence, it is not sufficient from a transfer pricing perspective that a restructuring arrangement makes commercial sense for the group as a whole; it must be at arm’s length at the level of each individual taxpayer. Accordingly, there should be an accurate delineation of the transactions comprising the business restructuring and the functions, assets, and risks before and after the restructuring.

2. Reallocation of profit potential as a result of a business restructuring.

When a change in business arrangements results in a reduction in profit potential or expected future profits, an independent enterprise does not necessarily receive compensation. The arm’s length principle does not require compensation for a mere decrease in the expectation of an entity’s future profits. When applying the arm’s length principle to business restructurings, it is important to determine whether there is a transfer of something of value (an asset or an ongoing concern) or a termination or substantial renegotiation of existing arrangements that warrant compensation between independent parties in comparable circumstances.

3. Indemnification of the restructured entity for the termination or substantial renegotiation of existing arrangements.

The termination or renegotiation of contractual relationships in the context of a business restructuring might cause the restructured entity to suffer detriments such as restructuring costs (e.g., write-off of assets, termination of employment contracts), re-conversion costs (e.g., to adapt its existing operation to other customer needs), and/or a loss of profit potential. In these situations, it is important to evaluate whether, at arm’s length, indemnification should be paid to the restructured entity, and if so, how to determine such indemnification.

MNES AND TRANSFER PRICING AUDITS
Benjamin Franklin once said, “By failing to prepare, you are preparing to fail.” To ensure a high-quality transfer pricing risk assessment, MNE groups should structure themselves in a way that accurately reflects the economic substance of their transactions and operations to comply with transfer pricing rules. It is equally important to prepare transfer pricing documentation that provides useful information to the tax authority. Tax audit cases tend to be fact-intensive, so the availability of adequate information during the audit is critical.

Well-prepared documentation will give tax authorities some assurance that the taxpayer has analyzed the positions it reports on and has made a good-faith effort to comply with the transfer pricing rules. The documentation should include an overview of the MNE group business, including the nature of its global business operations, overall transfer pricing policies, and global allocation of income and economic activity.

Additionally, MNE groups are recommended to document their decisions and intentions regarding business restructurings, especially as regards their decisions to assume or transfer significant risks, before the relevant transactions occur. Taxpayers should be prepared to provide additional information and documentation to tax authorities upon request.

By carefully evaluating their compliance with transfer pricing rules and maintaining well-prepared documentation, taxpayers can help ensure that they are in compliance with applicable regulations and avoid potential penalties and other adverse consequences.

Let’s Talk TP is an offshoot of Let’s Talk Tax, a weekly newspaper column of P&A Grant Thornton that aims to keep the public informed of various developments in taxation. This article is not intended to be a substitute for competent professional advice.

 

Marie Fe F. Dangiwan is a partner of the Tax Advisory & Compliance of P&A Grant Thornton. P&A Grant Thornton is one of the leading audits, tax, advisory, and outsourcing firms in the Philippines, with 29 Partners and more than 1,000 staff members.

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