Malta: Corporate Tax Comparative Guide

Last Updated: 13 August 2019
Article by Kenneth Camilleri
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1 Basic framework

1.1 Is there a single tax regime or is the regime multi-level (eg, federal, state, city)?

A single tax regime.

1.2 What taxes (and rates) apply to corporate entities which are tax resident in your jurisdiction?

The tax rate for corporate entities which are tax resident in Malta is a flat 35%, subject to shareholders receiving an imputation credit for tax at source which reduces the effective tax rate. Certain streams of income may benefit from the participation exemption and thus may not be subject to tax in Malta, resulting in no tax being due in Malta.

1.3 Is taxation based on revenue, profits, specific trade income, deemed profits or some other tax base?

Tax is levied on a company's chargeable income – that is, income less deductible expenses. Broadly speaking, expenses are deductible where they are incurred wholly and exclusively in the production of the company's income.

1.4 Is there a different treatment based on the nature of the taxable income (eg, gains on assets as opposed to trading income or dividend income)?

All income and capital gains are in principle subject to tax at the flat corporate income tax rate of 35%.

Participation exemption regime: Dividends or gains derived from qualifying investments may benefit from the participation exemption regime, resulting in no tax being due in Malta.

Rental income: A corporate taxpayer may opt for the gross rental income derived from immovable property to be subject to a final withholding tax of 15% instead of the corporate tax rate. In such case no deductions may be made and no set-off or refund is permitted against the tax paid.

Income from property transfers: Gains from property transfers are subject to a property transfer tax, calculated on the basis of the transfer value as opposed to gain. The tax applies to all transactions in which immovable property is transferred. However, by way of exception, the transferor may, in specific circumstances, opt out of the property transfer regime and pay tax on the capital gains realised on the transfer instead.

The default applicable rate for property transfers is 8% of the transfer value.

Different rates may apply in other scenarios, as follows:

  • a 5% final withholding tax rate if the property is transferred within five years of the acquisition date and does not form part of a project;
  • a 5% final withholding tax rate if the property is located in an urban conservation area, is acquired on or after 1 January 2016 and is subsequently restored and/or rehabilitated, where such works have been certified by a planning authority compliance permit; and
  • a 2% rate if the property was acquired as a sole ordinary residence and is transferred no later than three years from the date of acquisition.

    1.5 Is the regime a worldwide or territorial regime, or a mixture?

    The connecting factors which are taken into account for tax purposes in Malta are residence and domicile. The basis of taxation changes depending on the taxpayer's connections with Malta. A company registered in Malta is deemed to be resident and domiciled in Malta for tax purposes and is taxable in Malta on a worldwide basis on all income and capital gains, whether arising in Malta or outside Malta and whether remitted to Malta or not.

    Companies which are registered overseas but whose management and control are exercised in Malta are deemed to be resident, but not domiciled in Malta, and are taxed on a source and remittance basis – that is, on local source income and capital gains, as well as foreign source income which is remitted to Malta.

    Corporate entities which are neither resident nor domiciled in Malta are taxable on a source basis only.

    1.6 Can losses be utilised and/or carried forward for tax purposes, and must these all be intra-jurisdiction (ie, foreign losses cannot be utilised domestically and vice versa)?

    Trading losses may be offset against any income and capital gains, while capital losses may be offset against capital gains only. Any unutilised losses may be carried forward indefinitely. All losses must be intra-jurisdiction.

    Where a company with tax losses is sold, it must continue the same line of business in order for those losses to continue to be carried forward.

    1.7 Is there a concept of beneficial ownership of taxable income or is it only the named or legal owner of the income that is taxed?

    It is the named legal owner of the income that is taxed

    1.8 Do the rates change depending on the income or balance-sheet size of the taxpayer?

    No – the rate is a flat 35%, regardless of income level or balance-sheet size.

    1.9 Are entities other than companies subject to corporate taxes (eg, partnerships or trusts)?

    Yes – partnerships, foundations and trusts may all be subject to tax in Malta, with all these entities having an option as to how to be treated for tax purposes.

    Under Maltese tax law, partnerships are deemed to be tax transparent and although taxable income is calculated at the level of the partnership, each partner must declare its share of the profits in its own tax return and pay tax on the same at the tax rate applicable to it. Alternatively, partnerships may opt to be treated as companies, in which case all provisions of the Income Tax Acts applicable to companies will apply.

    In relation to trusts, the general principle is that a trust is taxable in Malta on income which is attributable to it where at least one of the trustees is resident in Malta. In certain instances, and depending on the tax-resident status of the beneficiaries and the type of income received by the trust, income may be deemed to have been received directly by the beneficiaries as opposed to the trust, and therefore will not be taxable in Malta. Where a trust has been set up in writing and income attributable to the trust comprises income in the form of royalties, dividends, capital gains, interest, rent or any other income from investments, the trust may also make an irrevocable election to be treated as a company.

    Foundations are taxed as companies by default; however, the administrators of a foundation may irrevocably elect for the foundation to be taxed under the provisions applicable to trusts.

    2 Special regimes

    2.1 What special regimes exist (eg, for fund entities, enterprise zones, free trade zones, investment in particular sectors such as oil and gas or other natural resources, shipping, insurance, securitisation, real estate or intellectual property)?

    Shipping – tonnage tax regime: Under this regime, any income, profits or gains derived from shipping activities carried out by a licensed shipping organisation may be exempt from tax under the Income Tax Act, provided that the registration fees and tonnage taxes have been duly paid. In order to benefit from this regime, a Maltese company must have a commercial vessel registered within the European Union. The requirements of this regime highlight the importance of keeping separate accounts for shipping and non-shipping activities in order to properly determine the net tonnage rate.

    The main benefit of this regime is that instead of calculating the tax due according to income, profits or gains derived from shipping activity, a flat rate will apply, in accordance with the net tonnage, which depends on the age of the ship. The standard rates are based on vessels which are 10 to 15 years old. For other vessels, the following apply:

    • If the vessel is older than 15 years, there is a surcharge of up to 50%;
    • If the vessel is up to five years old, there is a reduction of 30%; and
    • If the vessel is between five and 10 years old, there is a reduction of 15%.

    Real estate – income from property transfers: Gains from property transfers are subject to a property transfer tax, calculated on the basis of the transfer value as opposed to gain. The tax applies to all transactions in which immovable property is transferred. However, by way of exception, the transferor may, in specific circumstances, opt out of the property transfer regime and pay tax on the capital gain realised on the transfer instead.

    The default applicable rate for property transfers is 8% of the transfer value.

    Different rates may apply in other scenarios, as follows:

    • a 5% final withholding tax rate if the property is transferred within five years of the acquisition date and does not form part of a project;
    • a 5% final withholding tax rate if the property is located in an urban conservation area, is acquired on or after 1 January 2016 and is subsequently restored and/or rehabilitated, where such works have been certified by a planning authority compliance permit; and
    • a 2% rate if the property was acquired as a sole ordinary residence and is transferred no later than three years from the date of acquisition.

    Securitisation: A securitisation vehicle is subject to the standard Maltese corporate tax regime, whereby tax is charged on its worldwide income and gains. Chargeable income at the level of the securitisation vehicle may be reduced or completely eliminated by the application of the general rules relating to the deduction of expenses for tax purposes, as well as the special rules on the deduction of expenses under the Securitisation Transactions (Deductions) Rules. Once all permitted deductions have been made, the securitisation vehicle may make a residual profits deductions equal to the total of any remaining income, thus bringing the securitisation vehicle's chargeable income down to zero.

    Taxation of funds: The taxation of investment funds in Malta is determined based on whether the fund is classified as a prescribed or a non-prescribed fund. A fund is prescribed if at least 85% of the value of its assets is based within Malta, whereas a non-prescribed fund does not have at least 85% of the value of its assets based in Malta. A prescribed fund must also be acknowledged as such in writing by the commissioner for revenue.

    Non-prescribed funds are generally not subject to taxation under Maltese law. However, income derived from immovable property situated in Malta will be subject to taxation under the normal Maltese laws.

    The default tax rate applicable to a prescribed fund which is a company is 35%. However, other rates of tax may apply, depending on the fund's income streams.

    Bank interest is subject to a 15% withholding tax.

    Interest, discounts and premiums received from the Maltese government, corporations or authorities established by law in Malta, or any other company or legal entity in respect of a public issue are subject to a 10% final withholding tax.

    The normal rate of tax also applies to income derived from local immovable property.

    2.2 Is relief available for corporate reorganisations or intra-group transfers of companies and other assets? Please include details of any participation regime.

    Deferral of tax on restructuring: A deferral of capital gains tax applies in the case of an exchange of shares where there is a restructuring of holdings following a merger, demerger, division, amalgamation or reorganisation. No gain or loss shall be recognised at the restructuring stage; however, upon subsequent disposal, the cost of acquisition of the shares shall be deemed to be the original cost of acquisition.

    Participation exemption regime: Income and gains from qualifying investments may be eligible for exemption under the participation exemption regime. For income or capital gains from an investment held by a Malta company to be eligible under the participation exemption regime, such investment must qualify as a participating holding.

    An investment qualifies as a participating holding where one of the following conditions applies:

    • A company holds directly at least 5% of the equity shares of a company whose capital is wholly or partly divided into shares, which holding confers an entitlement to at least 5% of any two of the following (‘equity holding rights'):
      • voting rights;
      • profits available for distribution; and
      • assets available for distribution on winding up;
    • A company is an equity shareholder in a company and is entitled, at its option, to call for and acquire the entire balance of the outstanding equity shares to the extent permitted by the law of the country in which the equity shares are held;
    • A company is an equity shareholder in a company and is entitled to first refusal in the event of the proposed disposal, redemption or cancellation of all outstanding equity shares of that company;
    • A company is an equity shareholder in a company and is entitled either to sit on the board or to appoint a person to sit on the board of that company as a director;
    • A company is an equity shareholder which holds an investment representing a total value, as on the date or dates on which it was acquired, of a minimum of €1,164,000 (or the equivalent sum in a foreign currency) in a company and this holding is held for an uninterrupted period of not less than 183 days; or
    • A company is an equity shareholder in a company, where the holding of such shares is for the furtherance of its own business and the holding is not held as trading stock for the purpose of a trade.

    ‘Equity shareholding' refers to a holding of share capital which entitles the shareholder to at least any two of the following three rights:

    • the right to vote;
    • the right to profits available for distribution to shareholders; and
    • the right to assets available for distribution on winding up.

    Capital gains derived from the disposal of a participating holding may, at the option of the company, be exempt from tax in Malta.

    Where a Malta company receives dividend income from a participating holding, it may elect for such income to be exempt from tax in Malta, provided that the company in which the participating holding investment is held falls within one of the following safe harbours:

    • It is resident or incorporated in the European Union;
    • It is subject to foreign tax at a rate of at least 15%; or
    • Less than 50% of its income is derived from passive interest or royalties (interest or royalties are deemed to be passive when they are not derived directly or indirectly from a trade or business, and where such interest or royalties are subject to foreign tax at a rate of less than 5%).

    Where a participating holding does not fall within one of the safe harbours above, a company may still opt for such income to be exempt from tax in Malta if both of the following anti-abuse conditions are satisfied:

    • The equity shares held in the non-resident company do not represent a portfolio investment; and
    • The non-resident company or its passive interest or royalties have been subject to tax at a rate of at least 5%.

    2.3 Can a taxpayer elect for alternative taxation regimes (eg, different ways to calculate the taxable base, such as revenue-based versus profits based or cash basis versus accounts basis)?

    In the case of rental income, a landlord may opt to be taxed on a revenue basis at a flat rate of 15% on the gross rental income received, as opposed to being taxed at the applicable income tax rate on the net rental income after permissible deductions.

    Taxpayers may further elect for certain types of investment income to be taxed a final withholding tax at source at a rate of 15%.

    2.4 What are the rules for taxing corporates with different functional or reporting currency from that of the jurisdiction in which they are resident?

    In terms of the Companies Act, a company is permitted to denominate its share capital in any convertible currency and shall report its accounts in the same currency. Tax is reported and paid in that same currency.

    2.5 How are intangibles taxed?

    The mere holding of intangibles is not deemed to be a taxable event.

    2.6 Are corporate-level deductions available for contributions to pensions?

    Malta currently operates a first pillar pension scheme, whereby employers and employees both make equal contributions towards a state pension. The contributions made by corporate employers towards employee first pillar pensions are deductible for tax purposes.

    2.7 Are taxpayers from different sectors (eg, banking) subject to different or additional taxes or surtaxes?

    No additional taxes apply to taxpayers from different sectors.

    2.8 Are there other surtaxes (eg, solidarity surtax, education tax, corporate net wealth tax, remittance tax)?

    There are no other surtaxes. The remittance basis of taxation applies to entities which are resident but not domiciled in Malta.

    2.9 Are there any deemed deductions against corporate tax for equity?

    Malta recently introduced notional interest deduction rules intended to bring about neutrality between debt and equity financing of Malta resident entities, as well as permanent establishments of non-resident entities, to the extent that risk capital is attributable to such permanent establishments.

    With effect from year of assessment 2018, Malta companies and partnerships, and Malta permanent establishments of non-resident entities, may claim a deduction for a ‘notional interest on risk capital'. The deduction is optional and subject to the approval of shareholders or partners of the Malta entity.

    Pursuant to the notional interest deduction rules, the meaning of the term ‘risk capital' is as follows:

    • Where the undertaking is a company or partnership resident in Malta, the term refers to the share or partnership capital of the undertaking, any share premium, positive retained earnings, loans or other debt borrowed by the undertaking which do not bear interest, any other reserves resulting from a contribution to the undertaking and any other item which is shown as equity in the financial statements of the undertaking; and
    • Where the undertaking is a permanent establishment of a company or partnership that is not resident in Malta, the term refers to the risk capital of that undertaking, as defined in the first bullet above, which is attributable to the permanent establishment.

    The deduction which may be made is calculated by multiplying the company's risk capital at year end by the notional interest deduction reference rate equal to the risk-free interest rate identified as current yield to maturity on Maltese government stocks with a remaining term of approximately 20 years, plus a premium of 5%. The maximum deduction in any given year cannot exceed 90% of the entity's chargeable income, but the balance of notional interest deduction over that threshold can be carried forward.

    Where a Malta entity claims the notional interest deduction, its partners/shareholders will be considered to have received interest income in proportion to the nominal value of risk capital held by them. In the case of non-resident shareholders/partners, the deemed interest will be exempt from tax in Malta. Shareholders in receipt of dividends paid out of profits which have been relieved of tax through a notional interest deduction claim will not be subject to further tax on receipt.

    3 Investment in capital assets

    3.1 How is investment in capital assets treated – does tax treatment follow the accounts (eg, depreciation) or are there specific rules about the write-off for tax purposes of investment in capital assets?

    Capital allowance rates may differ from depreciation in accounts and the legislation specifies the minimum number of years over which an asset can be depreciated for tax purposes.

    A special regime applies for aircraft leasing, whereby depreciation recognises different useful lives for different parts of the aircraft.

    3.2 Are there research and development credits or other tax incentives for investment?

    Malta Enterprise is the national economic development agency tasked with attracting foreign direct investment to Malta and promoting the growth of existing operations. The agency rolls out incentives from time to time, particularly in areas where Malta wishes to encourage growth, such as manufacturing, information and communication technologies, call centres, healthcare, pharmaceuticals, biotechnology, aviation and maritime, education and training and logistics.

    These incentives allow enterprises to recover, through tax credits, part of the costs incurred for the secondment of highly qualified personnel from large undertakings and organisations involved in research and knowledge dissemination, or to benefit from tax deductions in relation to eligible investments in qualifying activities. Other schemes allow for tax credits against costs incurred directly or indirectly in carrying out an R&D project or projects relevant to the company's trade and aimed at achieving an advancement in a field of science or technology through the resolution of scientific or technological uncertainty.

    3.3 Are inventories subject to special tax or valuation rules?

    No.

    3.4 Are derivatives subject to any specific tax rules?

    No.

    4 Cross-border treatment

    4.1 On what basis are non-resident corporate entities subject to tax in your jurisdiction?

    Non-resident corporate entities are subject to tax on a source basis only.

    4.2 What withholding or excise taxes apply to payments by corporate taxpayers to non-residents?

    No withholding or excise taxes apply.

    4.3 Do double or multilateral tax treaties override domestic tax treatments?

    Yes, by virtue of a provision of domestic law which states that once a treaty is concluded, should there be any conflict with domestic law, the treaty shall prevail.

    4.4 In the absence of treaties, is there unilateral relief or credits for foreign taxes?

    Yes – Malta provides unilateral relief for foreign tax levied which is similar in nature to the tax levied in terms of the Maltese tax codes.

    4.5 Do inbound corporate entities obtain a step-up in asset basis for tax purposes?

    Yes – inbound entities can step up the value of their assets to market value on the date of re-domiciliation.

    4.6 Are there exit taxes (for disposed-of assets or companies changing residence)?

    Malta currently does not levy any exit taxes. However, with effect from 1 January 2020, it will start to apply exit taxes in compliance with the EU Anti-Tax Avoidance Directive.

    5 Anti-avoidance

    5.1 Are there anti-avoidance rules applicable to corporate taxpayers – if so, are these case law (jurisprudence) or statutory, or both?

    Yes – Malta has both statutory general and specific anti-avoidance rules.

    5.2 What are the main ‘general purpose' anti-avoidance rules or regimes, based on either statute or cases?

    The general anti-avoidance rule states that where any scheme which reduces the amount of tax payable by any person is artificial or fictitious, the commissioner for revenue may disregard such scheme and the person concerned will be assessed accordingly.

    5.3 What are the major anti-avoidance tax rules (eg, controlled foreign companies, transfer pricing (including thin capitalisation), anti-hybrid rules, limitations on losses or interest deductions)?

    Controlled foreign companies rules and limitations on interest deductions in terms of the implementation of the EU Anti-Tax Avoidance Directive.

    5.4 Is a ruling process available for specific corporate tax issues or desired domestic or cross-border tax treatments?

    There is a ruling process which may be used in very limited cases specifically laid down by law, with the aim of interpreting provisions of the law in relation to those specific cases.

    5.5 Is there a transfer pricing regime?

    No.

    5.6 Are there statutory limitation periods?

    Yes.

    6 Compliance

    6.1 What are the deadlines for filing company tax returns and paying the relevant tax?

    Tax returns must be submitted to the commissioner for revenue by the later of either nine months from the end of the company's financial year end or 31 March. An extension to the filing deadline of two or three months, depending on the filing date, is granted to taxpayers that submit their returns electronically.

    The tax payment deadline is the tax return date (any extensions granted on filing of the tax return do not apply to tax payments). Certain companies are authorised to pay tax within 18 months of the end of their financial year.

    6.2 What penalties exist for non-compliance, at corporate and executive level?

    Penalties are levied at the level of the company as follows:

    Additional tax due for late filing of tax return:
    Within six months of due date
    Later than six months but within 12 months
    Later than 12 months but within 18 months
    Later than 18 months but within 24 months
    Later than 24 months but within 36 months
    Later than 36 months but within 48 months
    Later than 48 months but within 60 months
    Later than 60 months
    50
    200
    400
    600
    800
    1,000
    1,200
    1,500

    Interest on late payment of tax is charged at 0.54% per month of delay.

    6.3 Is there a regime for reporting information at an international or other supranational level (eg, country-by-country reporting)?

    Yes – a country-by-country reporting regime applies in Malta.

    7 Consolidation

    7.1 Is tax consolidation permitted, on either a tax liability or payment basis, or both?

    No.

    8 Indirect taxes

    8.1 What indirect taxes (eg, goods or service tax, consumption tax, broadcasting tax, value added tax, excise tax) could a corporate taxpayer be exposed to?

    Value added tax (VAT) will typically not be an expense for companies, as they can generally recover input VAT. However, in cases where a company is exempt without credit, it will be exposed to VAT on its purchases.

    8.2 Are transfer or other taxes due in relation to the transfer of interests in corporate entities?

    The transfer of shares in companies typically attracts capital gains tax payable by the seller. Broadly speaking, this tax is levied at the seller's applicable tax rate on the difference between the sale price and the cost of acquisition of the shares being transferred.

    The transfer will also attract a duty on documents, payable by the buyer, at a rate of 2% or 5% if the shares are held in a property company. A ‘property company' is a company which owns immovable property situated in Malta or any real rights thereto; or which holds, directly or indirectly, shares or other interests in any entity or person which owns immovable property situated in Malta or any real rights thereto, where 5% or more of the total value of the shares or other interests so held is attributable to such immovable property or rights.

    The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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