Next Mobile submits DOJ report on ownership issue

Next Mobile (formerly Nextel Communications Phils. Inc. or NCPI) submitted yesterday to the congressional committee on transportation and communications a copy of the Department of Justice resolution dated June 27, 2003 which finally settled the controversy regarding NCPI’s shareholding structure.

During yesterday’s hearing, Catherine Laurel, Next Mobile director for legal affairs, advised the committee of the DOJ’s clear and categorical findings that foreign ownership in NCPI did not exceed the 40 percent legally allowed in public utilities.

Earlier, Rep. Prospero Nograles filed House Resolution No. 1076 which seeks to look into allegations that foreigners have more than 40-percent ownership in NCPI.

The DOJ earlier dismissed for lack of evidence the complaint filed by one Paquito Sta. Maria de Jesus that NCPI’s corporate shareholders, namely Top Mega, Joyce Link, Gamboa Holdings, and Emerald Investments violated the constitutional limitations on foreign equity.

It explained that the "grandfather rule" on foreign equity upon which the complaint is based has long been abandoned. It has been superseded by the "control test" citing the department’s earlier opinion rendered Jan. 19, 1989 and is now embodied in the Foreign Investments Act of 1991.

Under the control test, NCPI’s corporate shareholders qualify as Philippine nationals and the entirety of their respective shares of stocks in NCPI is accordingly computed as forming part of the 60-percent Filipino equity therein, irrespective of whether 40 percent of their respective outstanding capital stocks are owned by foreign nationals.

The DOJ further ruled in June that the evidence does not support the allegation that Gamboa Holdings and Emerald Investments are dummies of Nextel International Inc. (NII), the US-based telecommunications giant.

According to the DOJ, false simulation of the minimum 60- percent Filipino equity in NCPI cannot be inferred from the fact that it was NII who put up the security collateral for the loaned amount used in buying the NCPI shares. Funds used by purchasing shareholders as payments for shares of stock bought need not come from their personal pockets or savings but may be either proceeds of loans or donated amount, the ruling said. It added that donees or borrowers then became owners of the money donated or loaned to them and if they invest it into shares of stocks, they themselves legally become absolute owners thereof.

Likewise the DOJ stated that the false simulation of Filipino ownership cannot be inferred from the fact that it was a foreign shareholder who shared most of the funds which Gamboa and Emerald used in buying NCPI shares. Ownership or equity in a corporation is determined not by the actual amount paid or invested but by the number of outstanding shares held by the particular shareholder.