REPUBLIC ACT NO. 10881 Lending Investor Financing Companies Foreign Ownership

1.No. 3023
2. No. 6395

Republic of the Philippines

Congress of the Philippines

Metro Manila

Sixteenth Congress

Third Regular Session

Begun and held in Metro Manila, on Monday, the twenty – seventh day of July, two thousand fifteen.

[REPUBLIC ACT NO. 10881]

AN ACT AMENDING INVESTMENT RESTRICTIONS IN SPECIFIC LAWS GOVERNING ADJUSTMENT COMPANIES, LENDING COMPANIES, FINANCING COMPANIES AND INVESTMENT HOUSES CITED IN THE FOREIGN INVESTMENT NEGATIVE LIST AND FOR OTHER PURPOSES.

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Declaration of Policy. – It is the policy of the State to attract and promote investments from foreign individuals, partnerships, corporations and governments, including their political subdivisions, in activities that significantly contribute to industrialization, socioeconomic development and sustainable inclusive growth.

Given the country’s development objectives and the need to increase investments to achieve these, amending the limitations on foreign investments or participation in certain activities listed in the Foreign Investment Negative List as provided for in specific laws, becomes necessary.

SEC. 2. Definition of Investment. – As used in this Act, investment shall refer to equity participation in any enterprise organized or existing under the laws of the Philippines and duly recorded in the Stock Transfer Book, or its equivalent, of the enterprise.

SEC. 3. Lifting of Nationality Requirements. – The nationality requirements for adjustment companies as provided in Presidential Decree No. 612, investment houses as provided in Presidential Decree No. 129, lending companies as provided in Republic Act No. 9474 and financing companies as provided in Republic Act No. 8556 are hereby repealed, subject to the provisions of this Act and the Constitution.

SEC. 4. Adjustment Companies. – Section 332 of Presidential Decree No. 612, otherwise known as “The Insurance Code”, as amended by Republic Act No. 10607, is hereby amended to read as follows:

“SEC. 332. No person, partnership, association, or corporation shall act as an adjuster, as herein earlier defined, unless authorized so to act by virtue of a license issued or renewed by the Commissioner pursuant to the provisions of this Code.”

SEC. 5. Lending Companies. –  Section 6 of Republic Act No. 9474, otherwise known as the “ Lending Company Regulation Act of 2007”, is hereby amended to read as follows:

SEC. 6. Citizenship Requirements. – A lending company may be owned up to one hundred percent ( 100% ) by foreign nationals: Provided, however, That where the loan is secured by land, a lending company more than forty percent ( 40% ) of whose capital is owned by foreign nationals, may bid and take part in any sale of such land as a consequence of such mortgage, avail of enforcement proceedings, take possession, and transfer their rights to qualified Philippine nationals for a period not exceeding five (5) years from actual possession: Provided, further,  That title to said land shall not be transferred to such lending companies: Provided, finally, That investments of a lending company shall be in accordance with the provisions of the Constitution.”

“SEC. 6. Financing Companies. – Section 6 of Republic Act No. 8556, otherwise known as the “Financing Company Act of 1998”, is hereby amended to read as follows:

“SEC. 6. Form of Organization and Capital Requirements. – Financing companies shall be organized in the form of stock corporations, may be owned -up to one hundred percent (100%) by foreign nationals, and shall have a paid – up capital of not less than ten million pesos (P10,000,000.00) in case the financing company is located in Metro Manila and other first class cities, five million pesos (P5,000,000.00) in other classes of cities and two million five hundred thousand pesos (P2,500,000.00) in municipalities: Provided, That the Securities and Exchange Commission may adjust said minimum paid – up levels as it deems warranted by its prudential oversight requirements and consistent with the objectives of this Act: Provided, however, That financing companies duly existing and in operation before the effectivity of this Act shall comply with the minimum capital requirement within one (1) year from the date of the said effectivity: and Provided, further, That where land is concerned, the financing company shall comply with the constitutional provision on foreign ownership of land.”

SEC. 7. Investment Houses. – Section 5 of Presidential Decree No. 129, as amended by Republic Act No. 8366, otherwise known as “The Investment Houses Law”, is hereby amended to read as follows:

“SEC. 5. Citizenship Requirements. – An Investment House may be owned up to one hundred percent (100%) by foreign nationals. Foreign nationals may become members of the board of directors to the extent of the foreign participation in the equity of said enterprise.”

SEC. 8. Regulatory Powers of the Bangko Sentral ng Pilipinas. – Nothing in this Act shall preclude the Bangko Sentral ng Pilipinas from Exercising its powers and authorities over financing companies, lending companies and investment houses pursuant to existing laws.

SEC. 9. Separability Clause. – If any of the provisions of this Act is declared invalid, the other provisions not affected thereby shall remain in full force and effect.

SEC. 10. Repealing Clause. – All statutory laws, orders, issuances, rules and regulations and / or parts thereof which are inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

SEC. 11. Effectivity. – This Act shall take effect fifteen (15) days after its publication in the Official Gazette or in a newspaper of general circulation.

Approved,

 

FELICIANO BELMONTE JR.                                  FRANKLIN M. DRILON
   Speaker of the House                                         President of the Senate
of Representatives

This Act which is a consolidation of Senate Bill No. 3023 and House Bill No. 6395 was finally passed by the Senate and the House of Representatives on February 3, 2016 and May 23, 2016, respectively.

MARILYN B. BARUA – YAP                                                                           OSCAR G. YABES
      Secretary General                                                                               Secretary of the Senate
House of Representatives

Approved:

 

BENIGNO S. AQUINO III

President of the Philippines
Lapsed into law on July 17, 2016. Without the signature of the President. In accordance with Article VI, Section 27.(1)

Doing Business in the Philippines

Philippines Business Registration
Ayala Avenue Makati City Central Business District

Dayanan Business Consultancy assists individuals and foreign companies of all sizes in setting up their business operations in the Philippines. Doing business in the Philippines has many advantages as well as a large amount red tape.

Once we know your goals and the kind of business you want to launch in the Philippines,  DBC will recommend the best structure for your KPO, Call Center, IT or Web Development Outsourcing, Back Office Operation or Import and Export. DBC will advise you how to register your investment with PEZA or BOI to obtain tax incentives.

Get the Leading Business Process Outsourcing in the Philippines

We will also ensure that you will get the best Business Process Outsourcing in the Philippines. BPO is a cost-saving measure which is a method of subcontracting business-operations to a third party. One category of BPO is outsourcing of back office services, and Dayanan can help you starting from your business registration in the country.

DBC’s knowledge of the Philippine’s business environment and government agencies allows DBC’s clients to reach their objectives quickly. Personalized service is our commitment, whether your intention is to establish a:

Once the SEC has issued your License to Transact or Certificate of Incorporation, DBC will still be there to help get local business permits and licenses and register with other government agencies when necessary.

Other services DBC provides Business Development and Marketing, Business Plans, Visa Processing, Bookkeeping and Payroll.

Your Business Registration in the Philippines will be done quickly and professionally through Dayanan Business Consulting services.

Contact the DBC Team now for a free consultation.

Ways around Philippines Foreign Investment Act

Many people ask how they may circumvent the Philippines laws on foreign ownership as stated in the foreign investment negative list.

Most inquires pertain to foreign ownership of land and foreign ownership of corporations engaged in retail business or where the foreign equity is restricted to 40% or less.

No legal solutions exist for a foreigner to own land in their own name or to own more than the legal percentage of a business allowed to him by law. The use of nominees with side agreements is illegal and is a violation of the Anti-Dummy Law.

The Department of Justice Opinion No. 165, Series of 1984 indicates what may determine that the Anti-Dummy Law is being violated:

•    That the foreign investor provides practically all the funds for the joint investment undertaken by Filipino businessmen and their foreign partner.
•    That the foreign investors undertake to provide practically all the technological support for the joint venture.
•    That the foreign investors, while being minority stockholders, manage the company and prepare all economic viability studies.

Foreign investors may think they are protected by side agreements naming them the beneficial owners, however when the time comes to use the agreement in court, they will discover that the agreement has no value being a document that violates the law.  Another common occurrence is for the foreign investor to find that the nominee has taken over the business or has sold all the business’s assets.

No matter what people may tell you, the best way to do business in the Philippines is to obey the foreign investment act regulations regarding foreign ownership. Shortcuts only equal unnecessary risks.

Tax Identification Number for Foreign Investors

Tax Identification Number for Foreign InvestorsForeign corporations and individuals whether resident or non-resident, who have opened/invested in a domestic corporation, branch office, representative office or any other legal entity licensed to transact business in the Philippines are now required to obtain a Tax Identification Number (TIN) from the Bureau of Internal Revenue (BIR).

SEC Filings

All documents to be filed with the SEC by corporations and partnerships after their incorporation (i.e. General Information Sheets, application for amendments) will not be accepted by the SEC unless the TIN of all its foreign investors natural or judicial, resident or non resident are indicated therein no matter their percentage of foreign ownership.

Foreigners are not required to obtain a TIN for incorporation but must instead indicate their nationality, passport number and date of issue in the registration documents (i.e Articles of Incorporation, etc…).

These new rules are to be found in Memorandum Circular No. 1, Series of 2013, issued by the Securities and Exchange Commission (SEC) which requires the mandatory inclusion of the Tax Identification Number (TIN) of foreign investors in all forms, papers and documents filed with the SEC.

The above memo was issued to comply with Revenue Regulation 7-2012 dated April 2, 2012, known as the “Amended Consolidated Revenue Regulations on Primary Registration, Updates and Cancellation”, which provides –

“Section 4(I)(V)– Non-resident Aliens Not engaged in Trade or Business (NRANETB) or Non-Resident Foreign Corporations (NRFC) shall be issued TIN’s for purposes of whithholding Taxes on their income from sources in the Philippines. The withholding Agent shall apply for the TIN in behalf of the NRANETB or NRFC prior to or at the time of the filing of thier monthly withholding tax return”

and in relation to E.O. 98, Series of 1998 signed by President Joseph Ejercito Estrada directing all persons whether natural or juridical having dealings with any government agencies and instrumentalities, including Government owned and/or Controlled Corporations (GOCCS), and all Local Government Units (LGUs) to include their TIN in all forms, permits, licenses, clearances, official papers and documents which they secure from these government agencies, instrumentalities, including GOCCs and LGUs by corporations/partnerships with foreign investors.

This is part of the government campaign to enforce tax compliance of foreign investors in the Philippines.

Philippines Sole Proprietorship

The definition of a Sole Proprietorship or “single proprietorship”in the Philippines – is a business structure owned by an sole individual who has full control/authority of its own and owns all the assets, personally owes and answers to all liabilities and losses. A sole proprietorship must apply for a business name and be registered with the DTI-National Capital Region (NCR). In the provinces, application may be filed with the DTI regional/provincial offices.

The major disadvantage of a sole proprietorship is the unlimited liability of the owner. Creditors will not only try to obtain the assets of the business but also the personal property of the owner as payment for debts.

The sole proprietorship uses the TIN of its owner and must apply for all the usual business permits required by a business in the Philippines.

There are minimal capital requirements for Filipino citizens.

Some types of business may need other endorsements from various government agencies.

General information needed to apply for a sole proprietorship.

A. Business Details

1. Location. Indicate the barangay, city/municipality, and region where business is/will be located.

2. Tax Identification Number (TIN). Indicate TIN duly issued by BIR to you as individual taxpayer.

B. Owner’s Details

– First Name, Middle Name, Last Name, Suffix (if applicable).

– Date of Birth. Owner must be of legal age (at least eighteen [18] years old).

– Citizenship. For Filipino applicants, present two (2) primary ID or a combination of one (1) primary and one (1) secondary ID. Foreign Nationals must present the original and submit clear certified copy of the following, if applicable, namely: Certificate of Authority to Engage Business in the Philippines pursuant to Foreign Investment Act (Republic Act No. 7042 as amended); Certificate of Authority to Engage in Retail Trade per Republic Act No. 8762 (Retail Trade Liberalization Law), or such other applicable laws, as the case may be.

C. Owner’s Address

– House/Building No. This information include building name and floor number, Lot, Phase and Block numbers, and Subdivision, among others. Street, Barangay and Town/City, Province.

– Zip Code. Check the Philippine Postal Service Web site for proper Zip Code

DBC will assist you in obtaining all the necessary documents needed to apply for a Philippines sole proprietorship business registration and acquire all the necessary business permits. Contact DBC for a free assessment.

A sole proprietorship is only recommended for very small business due to the unlimited liability of the owner. We recommend setting up a corporation for most business and for foreign investors.

 

Philippines sole proprietorship

Republic Act No. 8179

AN ACT TO FURTHER LIBERALIZE FOREIGN INVESTMENTS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 7042, AND FOR OTHER PURPOSES

SECTION 1. Section 3, paragraph (a), of Republic Act No. 7042, otherwise known as the “Foreign Investments Act of 1991″, is hereby amended to read as follows:

“Section 3. Definitions. – As used in this Act:

[a] the term “Philippine national” shall mean a citizen of the Philippines, or a domestic partnership or association wholly owned by citizens of the Philippines; or a corporation organized under the laws of the Philippines of which at least sixty percent [60%] of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines; or a corporation organized abroad and registered as doing business in the Philippines under the Corporation Code of which one hundred percent [100%] of the capital stock outstanding and entitled to vote is wholly owned by Filipinos or a trustee of funds for pension or other employee retirement or separation benefits, where the trustee is a Philippine national and at least sixty percent [60%] of the fund will accrue to the benefit of Philippine nationals: Provided, That where a corporation and its non-Filipino stockholders own stocks in a Securities and Exchange Commission [SEC] registered enterprise, at least sixty percent [60%] of the capital stock outstanding and entitled to vote of each of both corporations must be owned and held by citizens of the Philippines, in order that the corporation shall be considered a Philippine national.”

SEC. 2. Sec. 7 of Republic Act No. 7042 is hereby amended to read as follows:

“Sec. 7. Foreign investments in domestic market enterprises. – Non-Philippine nationals may own up to one hundred percent [100%] of domestic market enterprises unless foreign ownership therein is prohibited or limited by the Constitution and existing laws or the Foreign Investment Negative List under Section 8 hereof.”

SEC. 3. Section 8 of the Foreign Investments Act of 1991 is hereby amended to read as follows:

“Sec. 8. List of investment areas reserved to Philippine nationals [Foreign Investment Negative List]. – The Foreign Investment Negative List shall have two [2] component lists: A and B:

[a] List A shall enumerate the areas of activities reserved to Philippine nationals by mandate of the Constitution and specific laws.

[b] List B shall contain the areas of activities and enterprises regulated pursuant to law:

1. which are defense-related activities, requiring prior clearance and authorization from the Department of National Defense [DND] to engage in such activity, such as the manufacture, repair, storage and/or distribution of firearms, ammunition, lethal weapons, military ordnance, explosives, pyrotechnics and similar materials; unless such manufacturing or repair activity is specifically authorized, with a substantial export component, to a non-Philippine national by the Secretary of National Defense; or

2. which have implications on public health and morals, such as the manufacture and distribution of dangerous drugs; all forms of gambling; nightclubs, bars, beer houses, dance halls, sauna and steam bathhouses and massage clinics.

“Small and medium-sized domestic market enterprises with paid-in equity capital less than the equivalent of Two hundred thousand US dollars [US$200,000.00], are reserved to Philippine nationals: Provided, That if [1] they involve advance technology as determined by the Department of Science and Technology, or [2] they employ at least fifty [50] direct employees, then a minimum paid-in capital of One hundred thousand US dollars (US$100,000.00) shall be allowed to non-Philippine nationals.

“Amendments to List B may be made upon recommendation of the Secretary of National Defense, or the Secretary of Health, or the Secretary of Education, Culture and Sports, endorsed by the NEDA, or upon recommendation motu proprio, of NEDA, approved by the President, and promulgated by a Presidential Proclamation.
“The transitory Foreign Investment Negative List established in Section 15 hereof shall be replaced at the end of the transitory period by the First Regular Negative Lists to be formulated and recommended by NEDA following the process and criteria provided in Sections 8 and 9 of this Act. The First Regular Negative List shall be published not later than sixty [60] days before the end of the transitory period. Subsequent Foreign Investment Negative List shall become effective fifteen [15] days after publication in a newspaper of general circulation in the Philippines: Provided, however, That each Foreign Investment Negative List shall be prospective in operation and shall in no way affect foreign investments existing on the date of its publication.

“Amendments to List B after promulgation and publication of the First Regular Foreign Investment Negative List at the end of the transitory period shall not be made more often than once very two [2] years.”

SEC. 4. Section 9 of the Foreign Investments Act of 1991 is hereby amended to read as follows:

“SEC. 9. Investment rights of former natural-born Filipinos. – For purposes of this Act, former natural-born citizens of the Philippines shall have the same investment rights of Philippine citizens in Cooperatives under Republic Act No. 6938, Rural Banks under Republic Act No. 7353, Thrift Banks and Private Development Banks under Republic Act No. 7906, and Financing Companies under Republic Act No. 5980. These rights shall not extend to activities reserved by the Constitution including [1] the exercise of profession; [2] in defense-related activities under Section 8 (b) hereof, unless specifically authorized by the Secretary of National Defense; and [3] activities covered by Republic Act No. 1180 [Retail Trade Act], Republic Act No. 5487 [Security Agency Act], Republic Act No. 7076 [Small Scale Mining Act], Republic Act No. 3018, as amended [Rice and Corn Industry Act], and P.D. 449 [Cockpits Operation and Management]“.

SEC. 5. The Foreign Investments Act is further amended by inserting a new section designated as Section 10 to read as follows:

“SEC. 10. Other rights of natural-born citizen pursuant to the provisions of Article XII, Section 8 of the Constitution. – Any natural-born citizen who has lost his Philippine citizenship and who has the legal capacity to enter into a contract under Philippine Laws may be a transferee of a private land up to a maximum area of five thousand [5,000] square meters in the case of urban land or three [3] hectares in the case of rural land to be used by him for business or other purposes. In the case of married couples, one of them may avail of the privilege herein granted: Provided, That If both shall avail of the same, the total area acquired shall not exceed the maximum herein fixed.

“In case the transferee already owns urban or rural land for business or other purposes, he shall be entitled to be a transferee of additional urban or rural land for business or other purposes which when added to those already owned by him shall not exceed the maximum areas herein authorized.

“A transferee under this Act may acquire not more than two [2] lots which should be situated in different municipalities or cities anywhere in the Philippines: Provided, That the total land area thereof shall not exceed five thousand [5,000] square meters in the case of urban land or three [3] hectares in the case of rural land for use by him for business or other purposes. A transferee who has already acquired urban land shall be disqualified form acquiring rural land and vice versa.”

SEC. 6. The National Economic and Development Authority, in consultation with the Board of Investments, the Department of Trade and Industry and Securities and Exchange Commission, shall prepare and issue the necessary primer and other information campaign materials regarding the Foreign Investments Act and the amendments introduced thereto, with copies of said materials furnished all the Philippine embassies, consulates and other diplomatic offices abroad and disseminated to Filipino nationals, former natural-born Filipino citizens, and foreign investors, within sixty [60] days after the effectivity hereof.

SEC. 7. The NEDA is hereby directed to make the necessary amendments to the implementing rules and regulations of Republic Act No. 7042 in order to reflect the changes embodied in the Act.

SEC. 8. Sections 9 and 10 of Republic Act No. 7042 and all references thereto in said law are hereby repealed or modified accordingly. All other laws, rules and regulation and/or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

SEC. 9. If any part or section of this Act is declared unconstitutional for any reason whatsoever, such declaration shall not in any way affect the other parts or sections of this Act.

SEC. 10. This Act shall take effect fifteen [15] days after publication in two [2] newspapers of general circulation in the Philippines.
Approved: March 28, 1996
_____________
Republic Act No. 7042 was amended by Republic Act No. 8179 which was approved on March 28, 1996. The date of effectivity thereof was on April 15, 1996.

SECTION 1. Section 3, paragraph (a), of Republic Act No. 7042, otherwise known as the “Foreign Investments Act of 1991″, is hereby amended to read as follows:

Philippines Foreign Investment Law

Setting up a business in the Philippines requires the investor to know the investment laws.
There are many ways for foreign investors to setup a business in the Philippines.
100% foreign ownership of a branch office, corporation, RHQ, ROHQ or representative office is allowed depending on the kind of business they intend to operate in the Philippines.

If you have questions on starting or doing business in the Philippines contact our business consultants for a free consultation.

Republic Act 7042 Foreign Investment Act of 1991

Republic Act 8179 Liberalize Foreign Investments, Amending for the purpose Republic Act No. 7042

Implementing Rules & regulations of the Foreign Investments Act of 1991 Republic Act No. 7042

Philippines Regular Foreign Investment Negative List

Ninth Regular Foreign Investment Negative List E O 98

Republic Act No. 8762 – Retail Trade Liberalization Act of 2000

Implementing Rules and Regulations of Republic Act No. 8762

Laws pertaining to the leasing of land and purchase of real estate and condominiums by foreigners.

Republic Act No. 4726 The Condominium Act

Presidential Decree No. 471 fixing a maximum period for the duration of leases or private lands to aliens

Republic Act No. 7652 Investors’ Lease Act

Tax Incentives

BOI Board of Investments

PEZA Philippine Economic Zone Authority

Republic Act No. 8756 An Act Providing For The Terms, Conditions And Licensing Requirements Of Regional Or Area Headquarters, Regional Operating Headquarters, And Regional Warehouses Of Multinational Companies, Amending For The Purpose Certain Provisions Of Executive Order No. 226, Otherwise Known As The Omnibus Investments Code Of 1987

Philippines Economic Zones

The Special Economic Zone Act of 1995 – Republic Act No. 7916

The Corporation Code of the Philippines

Philippines Foreign Investment Law