Corporate Tax 2010 - BMR Advisors

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Elvinger, Hoss & Prussen Luxembourg Pierre Elvinger Elvinger, Hoss & Prussen 2, place Winston Churchill B.P. 425 L-2014 Luxembourg Dirk Richter Elvinger, Hoss & Prussen 2, place Winston Churchill B.P. 425 L-2014 Luxembourg Tel: +352 44 6644 2112 Fax: +352 44 2255 Email: PierreElvinger@EHP.LU URL: www.ehp.lu Pierre Elvinger is “maître en droit”. He became a member of the Luxembourg Bar in 1991 and joined Elvinger Hoss and Prussen the same year. He studied tax law with the “Institut für Steuerrecht” of the “Cologne University”. His activities concentrate on litigation, tax law and employment law. He is fluent in English, French, German and Luxembourgish. Tel: +352 44 66 44 2440 Fax: +352 44 22 55 Email: DirkRichter@EHP.LU URL: www.ehp.lu Dirk Richter concentrates on tax matters with a focus on corporate and international taxation for institutional and corporate investors as well as transactional advice for regulated and unregulated private equity and real estate clients. He is a member of the “International Bar Association”, the “International Fiscal Association” and the “Luxembourg Association of Fiscal Law” and has co-authored the national report to the 2008 Brussels Congress on non-discrimination at the crossroads of international taxation. He is fluent in English, French and German and speaks Japanese. Luxembourg Elvinger, Hoss & Prussen is a leading Luxembourg law firm with recognised expertise in commercial, business and tax law. Established in 1964, the firm has chosen to remain an independent non-affiliated Luxembourg based firm, acting in close collaboration with selected correspondent law firms in other jurisdictions. Individual lawyers and pools of lawyers are highly specialised in determined areas of practice but Elvinger, Hoss & Prussen requires its lawyers to be multi-specialists rather than narrowly focused to efficiently service its local and international client base of banks, corporations and investment funds. Areas of practice: Elvinger, Hoss & Prussen has a strong experience across a wide range of areas of practice including Corporate, Corporate Finance and M&A, Private Equity, Tax, Banking and Finance, Capital Markets, Structured Finance, Securitisation, Aircraft Financing, Insurance, Investment Funds and Asset Management, General Commercial, Insolvency, Litigation, and Arbitration, IT/IP and Competition Law, General Administrative Law, Construction and Property Law, Real Estate Financing and Labour Law. Languages spoken: English, French, German, Luxemburgish, Dutch and Italian. ICLG TO: CORPORATE TAX 2010 © Published and reproduced with kind permission by Global Legal Group Ltd, London WWW.ICLG.CO.UK 167
Chapter 32 Malta Walter Cutajar Avanzia Taxand Limited Mary Anne Inguanez 1 General: Treaties 1.1 How many income tax treaties are currently in force in Malta Malta has an extensive treaty network with over 50 income tax treaties in force and another 10 treaties or so that are in the pipeline awaiting signature, ratification or both. Malta’s tax treaties are mainly with European countries although it also has treaties with countries in North America, Africa, Middle East and Asia. Moreover, as a Member of the European Union, dividends, interest and royalties may also benefit from the EU Parent Subsidiary Directive or the Interest and Royalties Directive. Apart from treaty relief, Malta also gives double taxation relief through legislative provisions in the form of unilateral relief or a Flat Rate Foreign Tax Credit (FRFTC) on foreign source income and capital gains. Unilateral relief provides relief from double taxation on a unilateral basis where the tax is charged in a country with which Malta does not have a double tax treaty. It may also be claimed in respect of underlying tax. The overseas tax is allowed as a credit against the Malta tax up to a level which does not exceed the total tax charge in Malta. The FRFTC is available to entities in receipt of income or capital gains from overseas and are therefore allocated, for income tax purposes, to the Foreign Income Account (FIA). A certificate from an auditor stating that the income stands to be allocated to the FIA is sufficient to claim FRFTC and no proof is necessary as to any foreign taxes suffered. The FRFTC is calculated at 25% of the amount of the net overseas income or gain received by the Maltese company before any allowable expenses. The income plus the credit, less allowable expenses, is subject to income tax at the standard rate of 35% with relief for the deemed credit up to a maximum of 85% of the Malta Tax payable. Upon a distribution of profits, the shareholders are entitled to tax credits and tax refunds and this results in an effective tax rate of up to 6.25%. 1.2 Do they generally follow the OECD or another model 1.3 Do treaties have to be incorporated into domestic law before they take effect A treaty needs to be incorporated into domestic law. Treaties are given force of law by means of publication in the Government Gazette as a legal notice under the Income Tax Act. A treaty will enter into force from the date determined by the treaty and will have effect from the date determined by the treaty. 1.4 Do they generally incorporate anti-treaty shopping rules (or “limitation of benefits” articles) Very few treaties have an article on Limitation of Benefits although protocols often exclude persons who are entitled to a special tax regime such as offshore companies, Freeport companies and shipping companies registered under the Merchant Shipping Act. Most of these companies are now defunct. However, the tax treaty with the United States of America (which, at the time of writing, has been signed but is not yet in force) contains a detailed limitation of benefits clause. 1.5 Are treaties overridden by any rules of domestic law (whether existing when the treaty takes effect or introduced subsequently) The Income Tax Act provides that once a tax treaty enters into force, this shall have effect in relation to income tax notwithstanding anything in the Act or any other enactment. Therefore, should there be a conflict between a treaty provision and domestic law it is the treaty which prevails. Needless to say, if the treaty provision is less attractive than the normal provisions contained in the Income Tax Act then the latter prevails. This may happen in withholding taxes since Malta does not impose any withholding tax on dividends, interest and royalties. The only limitation is that treaties made after 1 October 1968 do not apply with respect to income tax upon the chargeable income of any person engaged in the production of petroleum produced in Malta. 168 Malta’s double tax treaties are mainly based on the OECD model convention. Many of the older treaties contain a tax-sparing provision which makes the treaty even more attractive. In all tax treaties, the dividends article caters for Malta’s full imputation system. 2 Transaction Taxes 2.1 Are there any documentary taxes in Malta Malta levies a stamp duty which is known as a ‘duty on documents and transfers’. This is payable on transfers of immovable property situated in Malta, certain marketable securities, insurance contracts and certain other transactions. Duty on the acquisition of WWW.ICLG.CO.UK ICLG TO: CORPORATE TAX 2010 © Published and reproduced with kind permission by Global Legal Group Ltd, London
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