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Maltese Laws |
AN ACT to implement various budget measures and other administrative measures.
BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled,
and by the authority of the same, as follows:
Implementation Act, 2010.
Short title.
Coming into force of this Part.
Interpretation. Cap. 174.
Authority to raise loan.
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Cap. 161.
(2) For the purpose of raising the aforesaid loan the Minister responsible for finance is hereby authorised to issue stock in Malta under the provisions of the Local Loans (Registered Stock and Securities) Ordinance on such terms and conditions as the said Minister may approve.
Purpose. 5. Any money borrowed under the authority of this Part shall be appropriated and applied for the purpose of:
(a) meeting excess expenditure over revenue incurred in the Consolidated Fund for year 2010 and, or subsequent years;
(b) redeeming registered stocks which are due for redemption during 2010; and
(c) effecting portfolio changes in relation to amounts raised through Treasury Bills, amounts raised through Government Stocks,
and in respect of loans raised outside Malta as and when required in line with Government’s debt management policies.
Amendment to the Pensions Ordinance. Cap. 93.
Amendment of article 8C of the principal law.
Amendment of article 12 of the principal law.
(2) The provisions of this Part shall be deemed to have come into force on the 1st January, 2010.
(a) the present article shall be renumbered as subarticle (1) thereof and the said subarticle (1) as renumbered shall be amended
as follows:
(i) immediately after the words "office in the service of Malta" there shall be added the words ", or is or
was after his retirement appointed to an office established by the Constitution also being a pensionable office under this Ordinance,";
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(ii) immediately after the words "retires in circumstances in which he may be granted a pension," there shall be
added the words "or leaves office at the end of his appointment or re-appointment as the case may be,";
(iii) immediately after the words "on his previous or final retirement from the service of Malta," there shall
be added the words "or from the said office established by the Constitution,"; and
(iv) in the proviso thereto, the words "the gratuity already paid." shall be substituted with the words "the
gratuity already paid:" and immediately thereafter there shall be added the following new proviso:
"Provided further that in the case of an officer who has retired for the first time from one of the offices, posts or positions
mentioned in paragraphs (a), (b) or (c), excluding the proviso, of subarticle (2) of article 2 of the Public Administration Act,
the provisions of this subarticle shall only apply if the final retirement from the service of Malta or from the office established
by the Constitution took place before the 1st January, 2010."; and
(b) immediately after subarticle (1) as renumbered there shall be added the following new subarticle:
"(2) Notwithstanding the other provisions of this Ordinance or of any other law or other regulations, when a person is the
holder of one of the offices, posts or positions mentioned in paragraphs (a), (b) or (c), excluding the proviso, of subarticle (2)
of article 2 of the Public Administration Act, such person may, on being re- employed in the service of Malta after his retirement
from the service of Malta or on being retained in employment in the service of Malta beyond the age of sixty-one years, during such
period in employment after the age of sixty- one years receive and continue to receive any pension, including any gratuity or commuted
pension, without any reduction except as specified under this Ordinance, provided that the said period of re-employment or of retention
in employment shall not be taken into consideration for any other purposes of this Ordinance.".
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Amendments to the Income Tax Act.
Cap. 123.
Amendment of article 2 of the principal Act.
(2) (a) Articles 13(a)(i) and 13(b)(iv) shall be deemed to have come into force as from the 10th November, 2009.
(b) Articles 15(b), 16, 17, 18, 19, 20 and 27(a) shall come into force as from the year of assessment 2011.
(c) Article 10(a) shall be deemed to have come into force as from the 1st May 2004.
(d) Articles 10(b), 10(c), 10(d), 10(e), 15(a), 15(c) and
23 shall be deemed to have come into force as from the year of assessment 2009.
(e) Articles 11, 14, 24, 28, 29 and 30 shall be deemed to have come into force as from the 1st January 2009.
(a) in the definition "company", for the words "or a partnership anonyme:" there shall be substituted the
words "or a limited liability company or any company constituted as such under any other law in force in Malta:";
(b) in the definition "equity holding", for the words "a holding of the share capital in a company when the shareholding
entitles the shareholder to a right to votes, to profits available for distribution to shareholders and to assets available for distribution
on a winding up of that company, and "equity shares", "equity shareholder" and "equity shareholding"
shall be construed accordingly;" there shall be substituted the words "a holding of the share capital in a company
which is not a property company, when the shareholding entitles the shareholder to at least any two of the following rights (hereinafter
referred to as "equity holding rights"):
(i) a right to votes;
(ii) a right to profits available for distribution to shareholders; and
(iii) a right to assets available for distribution on a winding up of that company,
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and "equity shares", "equity shareholder" and "equity shareholding" shall be construed accordingly:
Provided that the Commissioner shall be entitled to determine that an equity holding exists even where such holding is not a holding
of the share capital in a company or does not consist solely of such a holding of share capital, but where it can be demonstrated
that in substance there is at any time an entitlement to at least two of the equity holding rights;";
(c) in paragraph (a) of the definition "foreign income account", for the words "derived from a participating holding
or from the disposal of such holding" there shall be substituted the words "derived from a participating holding in a company
not resident in Malta or from the disposal of such holding";
(d) the definition "participating holding" shall be amended as follows:
(i) paragraph (a) shall be substituted by the following:
"(a) a company holds directly at least ten percent of the equity shares of a company whose capital is wholly or
partly divided into shares, which holding confers an entitlement to at least ten percent of any two of the following:
(i) right to vote;
(ii) profits available for distribution; and
(iii) assets available for distribution on a winding up:
Provided that the Commissioner shall be entitled to determine that the provisions of this paragraph are satisfied even where the said
minimum level of entitlement exists in the circumstances referred to in the proviso to the definition of "equity holding";";
(ii) in paragraphs (b), (c), (d), and (f) thereof, the words "not resident in Malta" wherever they appear shall be
deleted;
(iii) in paragraph (e) thereof, for the words "an equity shareholder which invests a minimum sum of one million, one
hundred and sixty-four thousand euro
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(1,164,000) (or the equivalent sum in a foreign currency) in a company not resident in Malta and that investment in the company not
resident in Malta is held for an uninterrupted period of not less than 183 days" there shall be substituted the words "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 one million, one hundred and sixty-four thousand euro (€1,164,000) (or the equivalent sum in a foreign currency)
in a company and that holding in the company is held for an uninterrupted period of not less than 183 days";
(iv) in the proviso to the definition, for the words "entitles the holder to a right to votes, to profits available
for distribution and to assets available for distribution on a winding up of the said body of persons, and the term "equity
shareholder" shall be construed accordingly;" there shall be substituted the words "entitles the holder to at least
two of the following rights:
(a) a right to vote;
and
(b) a right to profits available for distribution;
(c) a right to assets available for distribution on a winding up of the said body of persons,
and the term "equity shareholder" shall be construed accordingly:
Provided that the Commissioner shall be entitled to determine that an equity holding exists even where the particular company does
not have a holding in the share capital in a company or does not consist solely of such a holding of share capital, but it can demonstrate
that in substance it holds an entitlement to at least two of the equity holding rights:
Provided further that in the case of a holding falling within the purport of paragraph (a) above, the provisions of the said
paragraph shall be deemed to be satisfied even where the minimum level of entitlement referred to in that paragraph exists at any
time by reference to the circumstances referred to in the proviso to the definition of "equity holding";"; and
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(e) immediately after the definition "prescribed" there shall be added the following new definition:
" "property company" shall mean a company which owns immovable property situated in Malta, or any rights over such
property, or a company which holds, directly or indirectly, shares or interests in a body of persons which owns immovable property
situated in Malta or any rights over such property:
Provided that where a company or body of persons carrying on a trade or business owns immovable property situated in Malta or any
rights over such property, consisting only of a factory, warehouse or office used solely for the purpose of carrying
on such trade or business, such company or body of persons shall, for the purpose of this definition, be treated as not owning
immovable property or any rights over such property if not more than fifty percent of its assets consist of immovable property situated
in Malta and it does not carry on any activity the income from which is derived directly or indirectly from immovable property situated
in Malta;".
Addition of new article 4A to the principal Act.
" P r o f i t s o r income prior to a c h a n g e i n r e s i d e n c e o r domicile.
4A. When a person:
(i) changes his residence and becomes resident in Malta and he was at no time domiciled or resident in Malta prior to such
change in residence; or
(ii) changes his domicile and becomes domiciled in Malta and he was at no time domiciled or resident in Malta prior to such
change in domicile; or
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L.N. 415 of 2007
(iii) is "a company resulting from the merger" which is registered in Malta as set out in sub-regulation (2) of
regulation 3 of the Cross-border Mergers of Limited Liability Companies Regulations (hereinafter referred to as "Cross-border
Mergers Regulations") and none of the assets owned by the company on the day of the merger was owned by any merging company
which is domiciled and, or resident in Malta at any time prior to the date of the particular merger,
and has made an election for the purpose of this paragraph by notice in writing to the Commissioner, all assets which are situated
outside Malta and which were acquired by him, or in the case of a company resulting from the merger, by any non-resident
merging company, prior to the above- mentioned change in domicile or residence or prior to the entry into force of the merger (each
of which shall hereinafter be referred to as "occurrence"), shall be deemed, for the purpose of calculating any income
that would not have been subject to tax had it arisen before the particular occurrence would have taken place, to be assets acquired
on the date of the particular occurrence, at a cost which is proved to the satisfaction of the Commissioner to be the market value
which it had on the date of the said occurrence:
Provided that such an election shall not be available unless the particular person exercises the election by not later than the end
of the year of assessment immediately following the basis year in which the occurrence takes place.".
Amendment of article 5 of the principal Act.
(a) paragraph (a) of subarticle (1) thereof shall be amended as follows:
(i) in sub-paragraph (ii) thereof, for the words "business, goodwill," there shall be substituted the words "business,
goodwill, business permits,";
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(ii) in sub-paragraph (iii) thereof, for the words "of such trust.", there shall be substituted the words "of
such trust; and" and
(iii) immediately after sub-paragraph (iii), as amended, there shall be added the following new sub- paragraph:
"(iv) gains or profits arising from a transfer of securities as provided for in subarticle (9A) and from a transfer of value
in securities as provided for in subarticle (13)(b)(ii).";
(b) in paragraph (b) of subarticle (1) thereof, in the definition of "transfer", for the words "long term policies
of insurance," there shall be substituted the words "long term policies of insurance, and any occurrence that is deemed
to be a transfer in accordance with the provisions of subarticles (9A) and (13)(b),";
(c) (i) in the proviso to paragraph (c) of subarticle (3) thereof, for the words "Minister responsible for finance;"
there shall be substituted the words "Minister responsible for finance:" and immediately thereafter there
shall be added the following new proviso:
"Provided further that where an amount standing to the credit of any of a company’s reserve accounts, other than a capital
redemption reserve and profits available for distribution, is applied in paying up to any extent any shares allotted by the
company, the cost of acquisition of such shares shall be zero;";
(ii) immediately after paragraph (f) of subarticle
(3), there shall be inserted the following new paragraph:
"(g) in the case of a transfer of shares listed on a stock exchange recognised under the Financial Markets Act, not being
securities in a collective investment scheme and not being exempt from tax under the provisions of paragraph (b) of article 5(6):
(i) the transfer value shall in no case exceed the market value of the said shares immediately upon being admitted to listing,
and
(ii) the cost of acquisition taken into account
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shall be the cost of acquisition of the original shares:
For the purpose of this paragraph "original shares" shall have the same meaning assigned in paragraph (b) of article 5(6).";
(d) in paragraph (b) of subarticle (6) thereof, the words "in a company" shall be deleted and for the words "collective
investment scheme;" there shall be substituted the words "collective investment scheme:" and immediately thereafter
there shall be added the following new provisos:
"Provided that the exemption provided for in this paragraph shall not apply where the transfer is made by a person who held the
said shares or the original shares, immediately before the said shares or the original shares were admitted to listing: For the purpose
of this paragraph "original shares" means the shares held by a person which have been admitted to listing and which
represent the shares being transferred:
Provided further that where such person held shares in a company immediately prior to their listing and also acquired further
listed shares in the said company after the initial listing of shares in the company, any transfer of shares made
by such person shall first be deemed to be a transfer of the shares acquired after the initial listing:
Provided also that the provisions of the immediately preceding provisos shall only apply where the shares transferred were admitted
to listing on or after the
1st January, 2010.";
(e) immediately after paragraph (ii) of subarticle (9)
thereof, there shall be added the following new paragraph:
"(iii) Where the asset referred to in paragraph (i) consists of immovable property situated in Malta or shares in a property
company, the provisions of this subarticle shall only apply where the individual direct or indirect beneficial owners of the
companies referred to in paragraph (i) are the same and each such individual holds, directly or indirectly, substantially
the same percentage interest in the nominal share capital and voting rights in each of the said companies. For the purpose of this
paragraph "property company" shall mean a company
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which owns immovable property situated in Malta, or any rights over such property, or a company which holds, directly or indirectly,
shares or interests in a body of persons which owns immovable property situated in Malta, or any rights over such property:
Provided that for the purpose of this paragraph an individual is deemed to hold substantially the same percentage interest in the
nominal share capital and voting rights in each of the said companies where the difference between the percentage interest held in
each company does not exceed twenty percent:
Provided further that where an individual holds, directly or indirectly, less than twenty percent of the nominal share capital and
voting rights in only one of the said companies, such individual shall, for the purpose of this paragraph, not be taken into account
in determining whether the individual direct or indirect beneficial owners of the said companies are the same:
Provided also that if more than one individual holds, directly or indirectly, less than twenty percent of the nominal share
capital and voting rights in only one of the said companies, the previous proviso shall not apply where together such individuals
hold, directly or indirectly, twenty percent or more of the nominal share capital and voting rights in that company:
Provided also that the whole of this paragraph shall not apply, where the companies referred to in paragraph (i) of this subarticle
are directly or indirectly owned as to eighty percent or more by a company whose securities are listed on a stock exchange recognised
under the Financial Markets Act.";
(f) immediately after subarticle (9) as amended, there shall be added the following new subarticle:
"(9A) (a) If a company ("the chargeable company") holds shares in a company, which had been acquired from another
company, and such acquisition was exempt from tax under article 5(9), this subarticle shall apply if the chargeable company ceases
to be a member of the original group before the lapse of six years from the date of the said acquisition. References in this subarticle
to a company ceasing to be a member of a group do not apply
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to cases where a company ceases to be a member of the original group by being wound up or dissolved or in consequence of another
member of the original group being wound up or dissolved:
Provided that where a company ceases to be a member of the original group by being wound up or dissolved, for the purpose of determining
whether the chargeable company ceases to be a member of the original group under paragraph (b), such company shall be deemed to have
remained in existence.
(b) The chargeable company shall cease to be a member of the original group, if such company and the company from which it had
acquired the shares referred to in paragraph (a) no longer satisfy the provisions of paragraphs (i) and (iii) of article 5(9) and
such determination shall be made by reference to the same individuals referred to in paragraph (iii) of the said article taken into
account in determining whether the two companies referred to in this paragraph satisfied the provisions of paragraphs (i) and (iii)
of article 5(9) on the date of the acquisition referred to in paragraph (a) above:
Provided that where the acquisition referred to in paragraph (a) of this subarticle took place before the 1st January 2010, paragraph
(iii) of article 5(9) shall be disregarded for the purpose of determining whether a company ceases to be a member of a group.
(c) For the purpose of this subarticle the term "original group" shall mean the two companies referred to in paragraph
(b) above, and the individual direct or indirect beneficial owners of the said companies who were taken into account in determining
whether the provisions of paragraphs (i) and (iii) of article 5(9) had been satisfied on the date of the acquisition referred
to in paragraph (a) above:
Provided that where the two companies referred to in this paragraph are directly or indirectly owned as to eighty percent or more
by a company whose securities are listed on a stock exchange recognised under the Financial Markets Act, the term "original
group" shall mean the two companies referred to above and the company whose securities are listed on the said stock exchange
as existing on the date of the acquisition referred to in the paragraph
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(a) above:
Provided further that where an individual acquires shares in terms of a donation exempt from tax under the provisions of article 5(2)(e),
or a transfer causa mortis, such individual shall be deemed for all the purposes of this subarticle to have held such shares from the date such shares were
previously acquired in an acquisition preceding the date of the donation or the transfer causa mortis.
(d) When the chargeable company ceases to be a member of the group it shall be treated for all the purposes of this
article as if, immediately after its acquisition of the shares referred to in paragraph (a) of this subarticle, it had transferred
and immediately re-acquired the shares at that time.
(e) The base cost and the date of acquisition of the shares that is taken into account for the purpose of determining any gain
or loss shall be the original cost and the date when the shares had previously last been acquired by a company by means of a transfer
that did not qualify for an exemption in terms of subarticle (9) or by means of an allotment, which ever is the later.
(f) (i) For the purpose of ascertaining the gains or profits arising under this subarticle, the acquisition
cost of shares acquired before the 25th November, 1992 shall be valued either on the Equity method of share valuation (net asset
value) based on the last accounts submitted to the Commissioner by the 18th December, 1992 or on the actual purchase price, whichever
is the higher.
(ii) Shares acquired on or after the 25th
November 1992, shall be valued on the cost of acquisition:
Provided that where an amount standing to the credit of any of a company’s reserve accounts other than a capital redemption reserve
and profits available for distribution, is applied in paying up to any extent any shares allotted by the company, the cost
of acquisition of such shares shall be zero.
(g) Any gain or loss on the transfer referred to in paragraph (d) above shall be treated as accruing to the
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chargeable company immediately before the company ceases to be a member of the group in accordance with paragraph (b).
(h) For the purpose of paragraph (a) of this subarticle the term "shares in a company" shall mean shares in
a company which, on the date of the acquisition referred to in the said paragraph owned, directly or indirectly, any immovable property
situated in Malta and the said property or any part thereof is still, directly or indirectly, owned by such company on the date it
ceases to be a member of the group in accordance with the provisions of paragraph (b) of this subarticle. For the purpose
of this paragraph a company is treated as indirectly owning immovable property if it holds, directly or indirectly, shares
or interests in a body of persons which owns any immovable property situated in Malta.
(i) Where in accordance with paragraph (d) of this subarticle the chargeable company is treated as having transferred and immediately
reacquired the shares, and a chargeable gain or a capital loss accrues to the chargeable company on the deemed transfer, the chargeable
gain or capital loss accruing on the deemed transfer shall be treated as accruing not to the chargeable company but to a
related company (“company A”) if -
(i) at the time of accrual, company A was incorporated in Malta, and
(ii) a joint election under this paragraph is made by the chargeable company and company A to treat the chargeable gain or capital
loss as accruing to company A, and
(iii) such joint election is made by notice given to the Commissioner not later than twelve months after the end of the accounting
period of the chargeable company or company A (whichever is the earlier) in which the time of accrual fell, and
(iv) provisional tax payable in accordance with article 43 of the Income Tax Management Act, is paid by company A at a rate of
thirty-five percent of the market value of the shares deemed transferred within the period prescribed in the said article.
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For the purpose of this paragraph company A is related to the chargeable company if both companies form a group for the purposes
of article 5(9) at the time of accrual and "time of accrual" means the time at which, by virtue of paragraph (d), the
gain or loss is treated as accruing to the chargeable company.";
(g) subarticle (13) thereof shall be amended as follows: (i) the present provisions of paragraph (b)
thereof shall be renumbered as sub-paragraph (i) of the
said paragraph (b) and for the words "such reduction is effected." there shall be substituted the words "such reduction
is effected:"; and immediately thereafter there shall be added the following proviso:
"Provided that where there is a proportionate reduction in the shareholding of all the shareholders, such that the proportion
of the shareholding of each shareholder with respect to number, type, class, voting rights and value of shares is equal before and
after the reduction is effected, it shall be deemed that no loss or gain has arisen from the transfer.";
(ii) immediately after paragraph (b)(i) thereof, as amended, there shall be added the following new sub- paragraph:
"(ii) Where the market value of shares held by a person ("the transferor") in a company has been reduced as a result
of a change in the issued share capital of such company, or a change in voting rights attached to such shares, and
such value passes into other shares in or rights over the company held by any other person ("the transferee"), the transferor
shall be deemed to have made a transfer of such value so reduced to the transferee. Any gains or profits shall be calculated by taking
into account the difference between the market value of the shares held immediately before and after the said change:
Provided that this paragraph shall not apply where the change in the issued share capital or change in voting rights does
not produce any change in the individual direct or indirect
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beneficial owners of the said company or in the proportion in the value of the said company represented by the shares owned beneficially
directly or indirectly by each such individual:
Provided further that this paragraph shall not apply where the change in the issued share capital consists of an allotment of shares
in a company as a result of an exchange of shares on a restructuring of holdings exempt from tax under the provisions of article
5(14):
Provided also that this paragraph shall not apply where the said company is a company whose securities are listed on a stock exchange
recognised under the Financial Markets Act:
Provided also that this paragraph shall not apply where the transfer of value is made by the transferor to a person referred to
in paragraph (i) of article 5(2)(e):
Provided also that this paragraph shall not apply where the said company is not a "property company" and it can be shown
to the satisfaction of the Commissioner that the said change is effected for bona fide commercial reasons and does not form part of a scheme or arrangements of which the main purpose, or one of the main purposes is
avoidance of liability to tax. For the purpose of this paragraph "property company" shall mean a company which owns immovable
property situated in Malta, or any rights over such property, or a company which holds, directly or indirectly, shares or interests
in a body of persons which owns immovable property situated in Malta, or any rights over such property."; and
(iii) in paragraph (c) thereof, for the words "in question" there shall be substituted the words "referred to in
paragraph (b)(i)"; and
(h) in the second proviso to subarticle (15) thereof, for the words "had this subarticle not been applied." there shall
be substituted the words "had this subarticle and article 5A not been applied.".
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(a) subarticle (3) thereof shall be amended as follows:
(i) in paragraph (b) thereof, for the words "five years", wherever they occur, there shall be substituted the words
"seven years"; and
(ii) in paragraph (h) thereof, for the words "as may be prescribed;" there shall be substituted the words "as
may be prescribed:" and immediately thereafter there shall be added the following proviso:
"Provided that such person is not owned or controlled by, directly or indirectly, nor acts on behalf of, an individual or individuals
who is or are resident in Malta;";
(b) subarticle (4) thereof shall be amended as follows:
(i) in paragraph (c) thereof, for the words "vacating the premises:" there shall be substituted the words "vacating
the premises and provided further that this paragraph shall only apply where the transfer would not have been chargeable under
the provisions of article
4(1)(a) but for the provisions of this article:";
(ii) in paragraph (f) thereof, for the words "if it were a transfer to which article 5 applied, would qualify for tax relief
under article 5(9):" there shall be substituted the words "would qualify for tax relief under article 5(9) but for the
provisions of this article:";
(iii) in the proviso to paragraph (f) thereof, for the words "to the said transfer;" there shall be substituted the
words "to the said transfer:" and immediately thereafter, there shall be added the following new proviso:
"Provided further that if such transfer does not qualify for tax relief under article 5(9) solely for the reason that it is not
a transfer of a capital asset, such transfer shall be exempt from tax under the provisions of this paragraph if the said transfer
is part of a restructuring, involving the transfer of the whole or part of a company’s business to another company and
the said property has been
Amendment of article 5A of the principal Act.
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owned by the transferring company for a period exceeding seven years:
Provided also that on a subsequent transfer of the said property made within a period of seven years after the date of the acquisition
thereof as determined in accordance with the second proviso to paragraph (b) of subarticle (3), the cost and date of acquisition
of the said property shall, where the transferor elects to exclude the transfer from the scope of this article, be the original cost
and the date referred to in article 5(9)(i)."; and
(iv) in the second proviso to paragraph (g) thereof, for the words "five years", there shall
be substituted the words "seven years";
(c) subarticle (10) thereof shall be amended as follows: (i) in paragraph (b) thereof, for the words "to
the extent that those gains or profits are correctly declared
in the deed of the transfer" there shall be substituted the words "to the extent that they are attributable to a transfer
whose transfer value has been correctly declared in the deed of the transfer or a transfer which has been correctly declared to be
exempt or out of the scope of this article,"; and
(ii) in paragraph (d) thereof, for the words "to which this article applies to the final taxed account." there shall
be substituted the words "to which this article applies, and on which tax is payable in accordance with this article, to the
final tax account.";
(d) subarticle (12A) thereof shall be amended as follows:
(i) in paragraph (a) thereof, for the words "ceases to be a member of the group" there shall be substituted
the words "ceases to be a member of the original group", and for the words "five years" there shall
be substituted the words "six years", and for the words "of the group being wound up or dissolved." there shall
be substituted the words "of the group being wound up or dissolved:", and immediately after paragraph (a) the following
proviso shall be added:
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"Provided that where a company ceases to be a member of the original group by being wound up or dissolved, for the purpose
of determining whether the chargeable company ceases to be a member of the original group under paragraph (b), such company
shall be deemed to have remained in existence.";
(ii) paragraph (b) thereof shall be deleted and substituted by the following:
"(b) The chargeable company shall cease to be a member of the original group, if such company and the company from which it
had acquired the property referred to in paragraph (a) no longer satisfy the provisions of paragraphs (i) and (iii) of article 5(9)
and such determination shall be made by reference to the same individuals referred to in paragraph (iii) of the said article
taken into account in determining whether the two companies referred to in this paragraph satisfied the provisions of paragraphs
(i) and (iii) of article
5(9) on the date of the acquisition referred to in
paragraph (a) above:
Provided that where the acquisition referred to in paragraph (a) of this subarticle took place before the 1st January 2010, paragraph
(iii) of article 5(9) shall be disregarded for the purpose of determining whether a company ceases to be a member of a group.";
(iii) the present paragraphs (c), (d), and (e) shall be renumbered as paragraphs (d), (e), and (f) respectively and in paragraph
(d) as renumbered for the words "acquisition of the property" there shall be substituted the words "acquisition of
the property referred to in paragraph (a) of this subarticle";
(iv) immediately after paragraph (b), there shall be added the following new paragraph:
"(c) For the purpose of this subarticle the term "original group" shall mean the two companies referred
to in paragraph (b) above, and the individual direct or indirect beneficial owners of the said companies who were taken into account
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in determining whether the provisions of paragraphs (i) and (iii) of article 5(9) had been satisfied on the date of the acquisition
referred to in paragraph (a) above:
Provided that where the two companies referred to in paragraph (b) above are directly or indirectly owned as to eighty percent
or more by a company whose securities are listed on a stock exchange recognised under the Financial Markets Act, the term “original
group” shall mean the two companies referred to above and the company whose securities are listed on the said stock exchange as
existing on the date of the acquisition referred to in paragraph (a) above:
Provided also that where an individual acquires shares in terms of a donation, exempt from tax under the provisions of article
5(2)(e), or a transfer causa mortis such individual shall be deemed for all the purposes of this subarticle to have held such shares from the date such shares were previously
acquired in an acquisition preceding the date of the donation or the transfer causa mortis."; and
(v) immediately after paragraph (f) as renumbered, there shall be added the following new paragraph:
"(g) Where in accordance with paragraph (d) of this subarticle the chargeable company is treated as having transferred and
immediately reacquired the property, the tax chargeable on the deemed transfer in accordance with paragraph (f) shall be treated
as being due not by the chargeable company but by a related company ("company A") if:
(i) company A is incorporated in
Malta;
(ii) a joint election under this paragraph is made by the chargeable company and company A to treat the tax chargeable on the deemed
transfer as being due by company A;
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(iii) such joint election is made by notice given to the Commissioner not later than fifteen working days from the date on which
the chargeable company ceases to be a member of the group as provided in paragraph (b); and
(iv) the tax chargeable referred to in paragraph (f) is paid by company A within the period referred to in the said paragraph.
For the purpose of this paragraph company A is related to the chargeable company if both companies form a group for the purposes of
article
5(9) at the time the original group ceases to exist.".
word "disposal" (in the English version only) shall be
substituted with the word "transfer" and for the words "and of any shares or securities in a company (which for the
avoidance of doubt includes redemption, liquidation or cancellation) which is not a company the assets of which consist wholly or
principally of immovable property situated in Malta:" there shall be substituted the words "and of any shares or
securities in a company (which for the avoidance of doubt includes redemption, liquidation or cancellation) which is not a property
company and for the purpose of this paragraph the word "transfer" shall have the same meaning assigned to it under article
5(1)(b):";
(b) in paragraph (t) of subarticle (1) thereof, for the words "the Courts of Malta" wherever they occur there shall
be substituted the words "the Courts of Malta or the Courts of
Amendment of article 6 of the principal Act.
Amendment of article 12 of the principal Act.
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another country as the Commissioner may approve";
(c) in paragraph (u) of subarticle (1) thereof, the word "disposal" shall be substituted with the word "transfer"
and immediately after the second proviso thereof, there shall be added the following new provisos:
"Provided also that in respect of participating holdings in companies resident in Malta, the provisions of this paragraph shall
only apply to gains or profits derived from the transfer of such holdings:
Provided further that for the purpose of this paragraph the word "transfer" shall have the same meaning assigned to it under
article 5(1)(b);"; and
(d) immediately after paragraph (u) of subarticle (1) as amended, there shall be added the following new paragraph:
"(v) Royalties and similar income derived from patents in respect of inventions, whether in the course of a trade, business,
profession or vocation or otherwise, subject to the satisfaction of such terms and conditions (including any limits on the maximum
amount of the exempt income) and obtaining such determinations as may be prescribed:
Provided that where any income which is exempt from tax in terms of this paragraph is derived by a company, the distribution
of the particular profits by way of dividend by such company shall also be exempt from tax in the hands of the shareholders, so however
that where the person in receipt of such dividend is itself a company (hereinafter referred to as "the second company"),
any dividend paid to the members of the second company shall, to the extent that such dividend is paid out of profits which are exempt
in terms of this paragraph, not be charged to tax under this Act, and where a member of the second company is again a company,
the provisions of this proviso shall apply mutatis mutandis as though references to the second company were references to that member, and the principle set out in this proviso shall continue
to be applied for as long as the exempt profits referred to in this paragraph are distributed by way of dividends:
Provided further that where such royalties or similar income are derived by a company, this exemption
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shall not apply where the company has shown such income as part of its chargeable income in the return made pursuant to
article 10 of the Income Tax Management Act.".
"(4) Where a person derives income from work carried out on or in relation to immovable property situated in Malta, consisting
of brokerage and professional services, construction work, project management of construction work and work of tradesmen, or from
the granting of loans or from any form of credit to finance the acquisition, development, construction, refurbishment, renovation
of immovable property or any right thereon and any other matter which increases or enhances the value of such immovable property
or any right thereon, and such property is owned by a related person, the following shall have effect:
(a) the income derived from the work, loans or credit, or from the transfer of such immovable property or any right thereon
to which such work, loans, or credit is related, shall be deemed to constitute separate chargeable income for the purpose of this
subarticle;
(b) in determining the chargeable income derived from the said work, the total deductions allowable under this article
shall not exceed the amount of the consideration received or receivable for the said work; and
(c) in determining the chargeable income derived from the transfer of such immovable property or any right thereon,
the total deductions allowable under this article shall not exceed the consideration received or receivable for the said immovable
property or right thereon, in so far that such excess consists of any amounts paid or payable in respect of the work, loans, or
credit referred to in this subarticle.
For the purpose of this paragraph any amounts paid or payable in respect of the said work, loans, or credit shall for the purpose
of determining the chargeable income to be taken into account only after all other allowable deductions have been taken into account:
Provided that paragraph (c) shall not apply with respect to
Amendment of article 14 of the principal Act.
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income derived from loans or credit, where it can be proved to the satisfaction of the Commissioner that the amount paid or payable
in respect of the loans or credit referred to in this subarticle reflects the amount that would have been paid or payable if the
persons referred to in this subarticle were not related.
For the purpose of this subarticle -
(i) an individual is deemed to be related to another person if that other person is a body of persons of which the said
individual is, directly or indirectly, a shareholder, partner or member; and
Amendment of article 14A of the principal Act.
Amendment of article 14C of the principal Act.
Addition of new article 14F to
the principal
Act.
(ii) two bodies of persons are deemed to be related persons if they are, directly or indirectly, controlled or beneficially owned as to more than twenty-five percent by the same persons.".
18. In article 14C of the principal Act, for the words "children to a licensed or registered" there shall be substituted the
words "children who were below the age of 12 years to a bona fide”, and immediately after article 14C, the following new proviso shall be added:
"Provided that the Minister may by rules prescribe the conditions under which this deduction shall be allowed.".
"Proof of payment of fees.
14F. If an individual proves to the satisfaction of the Commissioner that he has paid fees in respect of his studies at a recognised
tertiary education institution, whether locally or abroad, he shall be allowed a deduction against his income in respect
of such fees in such manner and subject to such conditions as may be prescribed.".
Amendment of article 29 of the principal Act.
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(1);
(a) the existing wording shall be numbered as subarticle
(b) in subarticle (1) as renumbered, the words "the business or air transport or" shall be deleted; and
(c) immediately after subarticle (1) as renumbered, the following new subarticle shall be added:
"(2) Where a person owns, leases, or operates any one or more aircraft or aircraft engine (irrespective of the country of
registration of the said aircraft or aircraft engine) which is used for or employed in the international transport of passengers
or goods, any income of such person which is derived or otherwise arises from the ownership, leasing, or operation of such
aircraft or aircraft engine shall, for the purposes of the Income Tax Acts, be deemed to have arisen outside Malta regardless of
whether the aircraft may have called at, or operated from, any airport in Malta.".
(a) the first proviso to subarticle (1) thereof shall be substituted by the following:
"Provided that where the recipient derives investment income referred to in article 41(a)(viii), tax shall be deducted at
the rate specified in article 56(6) or such other rate as may be prescribed and rules may also be prescribed on how the investment
income provisions are to be applied in particular circumstances."; and
(b) the second proviso to subarticle (1) thereof shall be deleted.
"(3) Where an account is not rendered to the Commissioner in the manner required under this article, the payor shall become liable to a penalty of not more than twenty- three thousand euro (€23,000) as may be prescribedby the Minister.".
Amendment of article 33 of the principal Act.
Amendment of article 34 of the principal Act.
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Amendment of article 41 of the principal Act.
Amendment of article 43 of the principal Act.
"(i) a person who is resident in Malta during the year in which investment income is payable to him or which is payable to a person under sub-paragraphs (ii) or (iii) of this paragraph (other than a person who during that year carried on banking business under the Banking Act, or a person carrying on the business of insurance or any other company (hereinafter "owned and controlled company") which is owned and controlled, directly or indirectly, by such persons, excluding an owned and controlled company not carrying on the business of banking or insurance which is listed on a stock exchange recognised under the Financial Markets Act and in respect of which the Commissioner, at his discretion, has issued a determination that such company falls within the purport of this definition, or a company which is registered under article 24 of the Malta Financial Services Authority Act), or".
(a) paragraph (c) thereof shall be substituted by the following:
"(c) Where an individual resident in Malta is beneficially entitled, directly or indirectly, to the profits (whether
or not distributed) of a company which has applied the provisions of article 12(1)(u) to any of its income or gains, such
individual shall be deemed to have received, at the time that the said company has submitted its tax return in which the said income
or gains would have been charged to tax but for the fact that it applied the said exemption or the last date on which such a tax
return is due to be submitted, whichever is the earlier, so much of that income or gains as corresponds to his, direct or indirect,
entitlement to receive that income or gains by way of dividend or other means through or from any person or entity in any manner
whatsoever and for the purpose of this paragraph if the company would have already distributed such income or gains or part thereof
it shall be deemed that no such distribution has been made.";and
(b) paragraph (f) thereof shall be amended as follows:
(i) in sub-paragraph (i), for the words
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"recognised under the Financial Markets Act" there shall be substituted the words "determined by the Commissioner for
the purpose of this provision"; and
(ii) in sub-paragraph (ii), for the words "not listed on such a stock exchange and not frequently traded" there
shall be substituted the words "not listed on such a recognised stock exchange or not frequently traded".
(a) in subarticle (2) thereof, immediately after the words "the said scheme and the consequent advantage." there
shall be added the following words "A person who disagrees with an order served upon him as aforesaid shall have the same rights
to object to that order and to appeal from a decision of the Commissioner refusing that objection as if that order were an assessment
issued under the Income Tax Management Act and the relevant provisions of that Act relating to objections and appeals shall apply
mutatis mutandis.";
(b) in paragraph (a) of subarticle (4) thereof, for the words "article 14(1)(g)" there shall be substituted the words
"articles 5(10)(b) and 14(1)(g)"; and
(c) in subarticle (5) thereof, in the definition of "scheme", for the words "transfer of assets"
there shall be substituted the words "transfer of assets, increase in the share capital of a company".
(a) in subarticle (12) thereof, immediately after paragraph (c), there shall be added the following
new paragraph:
"(d) Where a person has taken action under a Mutual Agreement Procedure in terms of an arrangement referred to in article
76 of this Act including Convention
90/436/EEC of 23 July 1990 on the elimination of double
taxation in connection with the adjustment of profits of
Amendment of article 47 of the principal Act.
Amendment of article 51 of the principal Act.
Amendment of article 56 of the principal Act.
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associated enterprises, any additional tax chargeable in terms of paragraph (c) of this subarticle shall not apply for the period
between the date when the said action under the Mutual Agreement Procedure is initiated and the date when the issue is concluded
under the said procedure:";
(b) in subarticle (17), for the words "the last part of that individual’s total income" there shall be substituted
the words "the first part of that individual’s total income";
(c) immediately after subarticle (20) there shall be added the following new subarticle:
"(21) Where, during the year immediately preceding the year of assessment 2011 or any subsequent year of assessment, an individual
who for the purposes of this subarticle, is not deemed to be ordinarily resident in Malta derives income subject to tax under article
4(1)(b), being emoluments payable under a qualifying contract of employment, and received in respect of work or duties carried out
in Malta, or in respect of any period spent outside Malta in connection with such work or duties, or on leave during the carrying
out of such work or duties, then, notwithstanding anything to the contrary contained in this Act, that individual may opt to have
the said income charged to tax at the rate of 15 cents on every euro:
Provided that:
(a) where the said option is exercised, the income that is charged to tax at the said rate shall be deemed to constitute the first
part of that individual’s total income for the year of assessment in question and the tax on the remaining income shall be calculated
at the rate or rates that would have been applicable to that remaining income had the option not been exercised;
(b) where the said option is exercised, the minimum amount of income which shall be chargeable to tax at the said rate in respect
of the year of assessment in question shall be deemed to be such amount as may be prescribed and the tax thereon shall not be less
than the tax which results from applying the said rate on the deemed minimum amount;
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(c) the applicability of this subarticle shall be subject to such conditions and restrictions as may be prescribed, including:
(i) the conditions under which an individual is to be deemed as being not ordinarily resident in Malta and under which a contract
of employment is to be deemed as a qualifying contract of employment for the purposes of this subarticle;
(ii) the maximum period or number of years for which, the said option may be exercised;
(iii) the procedure to be used for the exercise of the said option;
(iv) such other conditions and restrictions as the Minister may deem fit."; and
(d) immediately after the new subarticle (21) there shall be added the following new subarticle:
"(22) In the case of capital gains derived by a person from the transfer of shares listed on a stock exchange recognised under
the Financial Markets Act, not being securities in a collective investment scheme, and not being exempt from tax under the provisions
of paragraph (b) of article 5(6), such income shall be deemed to constitute separate chargeable income to be taxed separately at
the rate of 15 cents (€0.15) on everyeuro.".
Amendment of article 59 of the principal Act.
Amendment of article 80 of the principal Act.
Amendment of article 81 of the principal Act.
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Amendments to the Duty on Documents and Transfers Act. Cap. 364.
Amendment of article 2 of the principal Act.
(2) The provisions of this Part, other than article 43 hereof, shall come into force on such date as the Minister responsible for
finance may, by notice in the Gazette, establish, and different dates may be so established for different provisions or different
purposes of this Part.
(3) Article 43 shall be deemed to have come into force on 1st
January, 2010.
"transfer" there shall be substituted the following:
" " t r a n s f e r " i n c l u d e s a n y a s s i g n m e n t , c o n v e y a n c e , s a l e , p a r t i t i o n
, d o n a t i o n , s e tt le me n t of do w r y, s a le by i ns t a lm e nt s , redemption of ground rent and any acquisition under
any other title, including a declaratory public deed as is referred to in article 371(4)
Cap. 386.
and 354(3) of the Companies Act, and any occurrence that is deemed to be a transfer in accordance with the provisions of article 42B of this Act, but, except where specifically provided in this Act, does not include any transfer causa mortis;".
Substitution of article 4 of the principal Act.
Amendment of article 6 of the principal Act.
"4. Subject to the provisions of Part III, Title I of this Act, a document subject to duty under this Act, shall become so subject either from its origin if it is executed in Malta or by reason of its use if it is executed outside Malta.".
"(1) Subject to the provisions of Part III, Title I of this Act, a document executed outside Malta shall be chargeable with
duty when use thereof is made in Malta, if such document would have been so chargeable according to the provisions of this Act, had
it been executed in Malta.".
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"25. Notwithstanding the provisions of any other article in this Act, including articles 4 and 6, there shall be charged on
any policy of life insurance which is not renewable every year, wherever such policy is executed or used, a duty of ten cents for
every one hundred euro or part thereof of the sum assured:
Provided that duty under this article shall only be chargeable on policies where the policyholder is resident in Malta, or in the
case where the policy holder is a legal person, where such policy holder is incorporated or otherwise created in Malta:
Provided further that persons referred to in article 47(3) shall in no case be deemed to constitute persons referred to in the first
proviso of this article.".
Substitution of article 25 of the principal Act.
Substitution of article 27 of the principal Act.
"Duty on policies of insurance.
"27. Notwithstanding the provisions of any other article in this Act, including articles
4 and 6, there shall be charged on every policy
of insurance, wherever such policy is executed or used and in respect of which article 25 does not make specific provision, a duty
of ten
ce nts for every euro or pa rt thereof of the agreed yearly premium, or, if a compounded p r e m i u m i s a g r e e d u p o n a s
a l u m p s u m
payment, or a once only premium is otherwise payable, then of that agreed consideration:
Provided that -
(a) the minimum duty chargeable under this article shall be eleven euro and sixty-five cents (€11.65);
(b) where the premium payable is less than eleven euro and sixty-five cents (€11.65), the minimum duty chargeable shall be reduced
to ten per centum of the amount of premium so payable;
(c) no duty shall be chargeable on any policies of insurance in respect of Aviation, Marine Cargo, Marine Hull or Boat, Credit and
Suretyship, and Medical Cover;
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Cap. 403.
Cap. 403.
(d) duty under this article shall only be chargeable on policies relating to risks referred to in the definition of the term "
r i s k s i t u a t e d i n M a l t a " c o n t a i n e d i n article 2(1) of the Insurance Business Act;
(e) persons referred to in article
4 7 ( 3 ) s h a l l i n n o c a s e b e d e e m e d t o c o n s t i t u t e p e r s o n s a s r e f e r r e d t o i n paragraph (d)
of the definition of "risk
situated in Malta" in the said article 2(1)
of the Insurance Business Act.".
Amendment of article 32 of the principal Act.
(a) the whole subarticle shall be renumbered as paragraph (a) thereof; and
(b) immediately after paragraph (a) thereof, as renumbered, there shall be added the following new paragraph:
"(b) The provisions of paragraph (a) shall only apply where the individual, direct or indirect, beneficial owners of the
companies referred to in the said paragraph are the same and each such individual holds, directly or indirectly, substantially the
same percentage interest in the nominal share capital and voting rights in each of the said companies.
For the purpose of this paragraph an individual is deemed to hold substantially the same percentage interest in the nominal share
capital and voting rights in each of the said companies where the difference between the percentage interest held in each company
does not exceed twenty percent:
Provided that where an individual holds, directly or indirectly, less than twenty percent of the nominal share capital and voting
rights in only one of the companies referred to in paragraph (a), such individual shall not be taken into account in determining
whether the individual direct or indirect beneficial owners of the companies referred to in paragraph (a) are the same:
Provided further that if more than one individual holds, directly or indirectly, less than twenty percent of the nominal share capital
and voting rights in one of the said companies, the preceding proviso shall not apply where
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together such individuals hold, directly or indirectly, twenty percent or more of the nominal share capital and voting rights
in that company:
Provided also that the whole of this paragraph shall not apply, where the companies referred to in paragraph (a) of this subarticle
are directly or indirectly owned as to eighty percent or more by a company whose securities are listed on a stock exchange recognised
under the Financial Markets Act.".
(a) in the proviso to paragraph (b) of subarticle (1) thereof, the words "which do not own any immovable property
other than such premises as may be prescribed" shall be deleted;
(b) immediately after sub-paragraph (iii) of the proviso to paragraph (b) of subarticle (1) thereof, there shall be added the
following new provisos:
"Provided further that where the companies referred to in the immediately preceding proviso own, directly or indirectly,
any immovable property or rights over an immovable, the immediately preceding proviso shall only apply where the individual,
direct or indirect, beneficial owners of the companies referred to in the said proviso are the same and each such individual holds,
directly or indirectly, substantially the same percentage interest in the nominal share capital and voting rights in each of the
said companies both before and after the transfer or exchange, as the case may be. The provisions of paragraph (b) of article 32(6)
shall apply mutatis mutandis for the purpose of making such determination. For the purpose of this proviso a company is treated as indirectly owning immovable
property or any rights over an immovable if it holds, directly or indirectly, any shares or interests in a body of persons which
owns immovable property or any rights over an immovable:
Provided also that the immediately preceding proviso shall not apply, where the said companies are, directly or indirectly,
owned as to eighty percent or more by a company whose securities are listed on a stock exchange recognised under the Financial Markets
Act.";
Amendment of article 42 of the principal Act.
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(c) immediately after paragraph (c) of subarticle (1)
thereof, there shall be added the following new paragraph (d):
"(d) on a transfer of real value in marketable securities as provided for in article 42B.";
(d) subarticle (2) thereof shall be substituted by the following:
"(2) (a) Where it results that seventy-five percent or more of the assets, excluding all current assets other than
immovable property, of the company referred to in article 42B or of the company whose marketable securities are transferred inter vivos or are transmitted causa mortis in respect of persons from whom the transfer causa mortis originates who died on or after the 1st January 2000, consists of any immovable property or any right over an immovable, the
duty chargeable in virtue of subarticle (1) shall be increased by three euro for every one hundred euro or part thereof of the amount
or value of the consideration or the real value of the marketable security, whichever is the higher.
(b) Where the company referred to in article
42B, or whose marketable securities are transferred holds, directly or indirectly, shares in a company having seventy- five percent
or more of its assets, excluding all current assets other than immovable property, consisting of any immovable property or any right
over an immovable, hereinafter referred to as the "property company", the duty chargeable in virtue of subarticle (1) shall
be increased by three euro for every one hundred euro or part thereof of the amount or value of the consideration or the real value
of the marketable security, whichever is the higher:
Provided that paragraph (b) above shall only apply where the aggregate value of:
(i) immovable property or any right over an immovable owned by a property company or companies (as represented by the
percentage interest held in such company or companies), and
(ii) immovable property or any right over an immovable owned by the company referred to in article 42B or whose marketable securities
are transferred,
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is equal to or exceeds seventy-five percent of the total non- current assets of the property company or companies (as represented
by the percentage interest held in such company or companies) and of the company referred to in article 42B or whose marketable
securities are transferred, disregarding the book value of shares held, directly or indirectly, in the property company
or companies and taking into account total current assets consisting of immovable property:
Provided further that paragraph (b) shall not apply where the duty chargeable in virtue of subarticle (1) has been increased by three
euro for every one hundred euro or part thereof in accordance with paragraph (a) of this subarticle.
(c) For the determining of the amount or value of the consideration or the real value of the marketable security or of the real
value of the company referred to in article 42B, there shall not be deducted any liability in excess of the value of all assets excluding
the value of any such immovable property or any real right thereon other than -
(i) a bank loan relating to the cost of acquisition and improvements of the immovable property or real right thereon; or
(ii) a debt registered at the Public Registry relating to the acquisition cost of the aforesaid immovable, where such debt is
registered within three months from the date of acquisition of the said immovable,
proved in each case by the production of such documents to the satisfaction of the Commissioner, as the Commissioner may require.";
and
(e) immediately after subarticle (2) as substituted, there shall be added the following new subarticles:
"(3) The real value of shares in a company is a percentage of the real value of the company corresponding to the higher of
-
(a) the percentage of the issued share capital represented by the nominal value of those
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shares, and
(b) the percentage of the total voting rights in the company represented by the total voting rights attached to those shares.
(4) The Minister responsible for finance may make rules under this Act or the Income Tax Act for the implementation of the provisions
of this article and article
42B and, without prejudice to the generality of the foregoing, such rules may provide for:
(a) the manner in which the real value of a company is to be determined;
(b) the manner in which the real value of marketable securities is to be determined;
(c) the manner in which a transfer of real value in marketable securities as provided for in article 42B is to be determined;
and
Addition of new article 42B to the principal Act.
(d) any matter that may be prescribed under this article.".
"Reduction of real value of shares.
42B. Where the real value of shares held by a person (hereinafter referred to as the "transferor") in a company, has been
reduced as a result of a change in the issued share capital of such company, or a change in voting rights attached to such shares,
and such value so reduced passes into other shares in or rights over the company, held by any other person (hereinafter referred
to as the "transferee"), the transferor shall be deemed to have made a transfer of such value so reduced to the transferee,
calculated by taking into account the difference between the real value of the shares held immediately before and after the said
change and duty shall be chargeable in accordance with article 42:
Provided that this article shall not apply where:
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(i) the change in the issued share capital or change in voting rights does not produce any change in the individual, direct or
indirect, beneficial owners of the said company or in the proportion in the real value of the said company represented by the shares
owned beneficially, directly or indirectly, by each such individual; or
(ii) the change in the issued share capital consists of an allotment of shares in a company, as a result of an exchange of shares
from one company to another exempt from duty under the provisions of article 42(1); or
(iii) the transfer of value is the result of a change in voting rights and such transfer is made by the transferor to a person
referred to in paragraph (i) of article 5(2)(e) of the Income Tax Act; or
(iv) the said company is a company whose securities are listed on a stock exchange recognised under the Financial Markets Act;
or
(v) the said company is not a "property company" and it can be shown to the satisfaction of the Commissioner that the
said change is effected for bona fide commercial reasons and does not form part of a scheme or arrangements of which the main purpose, or one of the main purposes is avoidance
of liability to duty. For the purpose of this paragraph "property company" shall mean a company which owns any immovable
property situated in Malta, or any rights over such property, or a company which holds, directly or indirectly, shares or interests
in a body of persons which owns any immovable property situated in Malta, or any rights over such property.".
Act shall be substituted by the following two provisos:
"Provided that a notice given as aforesaid may stipulate
Amendment of article 43 of the principal Act.
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that it will apply also to other transfers of marketable securities executed outside Malta that may be made in the future by the same
person, in which case that person will not be required to give notice of such further transfers:
Amendment of article 47 of the principal Act.
Provided further that notice shall not be given where duty is not chargeable under any of the provisions of this Act.".
(a) immediately after subarticle (2) thereof, there shall be added the following new paragraph:
"For the purpose of this article acquisitions or disposals of marketable securities shall include a transfer of real value
in marketable securities as referred to in article 42(1)(d)."; and
(b) immediately after paragraph (e) of subarticle (3)
thereof, there shall be added the following new provisos:
"Provided that the holding of marketable securities in, and the carrying on of business activities with, a company or companies
referred to in paragraphs (c), (d) or (e) shall be deemed to constitute business interests outside Malta:
Amendment of article 49 of the principal Act.
Deletion of article 52A of the principal Act.
Provided further that for the purpose of determining whether a company referred to in article 384 of the Companies Act satisfies the provisions of this paragraph, only such company’s operations in Malta shall be taken into consideration.".
"(2) Duty as provided in article 42B shall be paid to the Commissioner by the transferee acquiring value within fifteen working days from the date of the change referred to in the said article. Such shareholder shall submit together with the payment referred to above any other documents, forms and details as may be prescribed.".
(2) Notwithstanding the repeal of article 52A of the principal
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Act, no payment made and which was due prior to the said repeal shall be held to have been made without being due or invalidly as
a consequence of the said repeal and any payment still due under the said article 52A in respect of any period prior to the repeal
of the said article shall remain due.
"(1) No person or authority shall, where a transfer is subject to duty under this Act, register any transfer, reduction, or allotment of company shares whether in the name of a transferee or any other person claiming through or under him or otherwise before ascertaining that a notice of such transfer has been lodged with the Registrar of Companies in accordance with this Act.".
"Provided that where such notice is not made because the taxpayer could not be found or for other reasons attributable to him and the Commissioner publishes a notice in the Gazette and in one or more daily newspapers stating that a notice has been made and inviting the taxpayer to call for it at the Department, then such notice shall also be deemed to have been duly notified.".
"Provided that if there is evidence that, after being requested by the Commissioner by means of a notice in writing, such person failed to produce without any reasonable excuse any records, documents, accounts and electronic data within thirty days from the date of service of such notice and an order in writing by the Commissioner referred to in article 33(5) has been issued, such person shall not be allowed to produce such
Amendment of article 64 of the principal Act.
Amendments to the Income Tax Management Act.
Cap. 372.
Amendment of article 29 of the principal Act.
Amendment of article 31 of the principal Act.
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Amendment of article 36 of the principal Act.
Amendment of article 38 of the principal Act.
Amendment of article 40 of the principal Act.
records, documents, accounts and electronic data before the
Board of Special Commissioners or in any Court of law.".
"(b) notwithstanding the provisions of article 34(7), where the assessment complained of has been raised by the Commissioner
in accordance with the provisions of article
30(1)(b) or (2) or (3), or of article 31(5), no evidence shall be
considered by the Board as sufficient to warrant any change in the assessment concerning that income if the person appealing against
the Commissioner’s decision has failed to provide without any reasonable excuse the records, documents, accounts and electronic
data in accordance with the proviso to article
31(5);".
(a) in subarticle (1) thereof:
(i) in paragraph (c) thereof, for the words "final and conclusive assessment" there shall be substituted the
words "final and conclusive assessment or order"; and
(ii) in the proviso thereto, for the words "in article 44(1)(b)" there shall be substituted the words "in
articles 44(1)(b) or 44(2A)(c)"; and
Amendment of article 43 of the principal Act.
(b) in subarticle (2) thereof, for the words "of article
44(1)(b)," there shall be substituted the words "of articles
44(1)(b) or 44(2A)(c),".
(a) in subarticle (1) thereof, for the words "article
5(1)(a)(i) and (ii)" there shall be substituted the words "article
5(1)(a)";
(b) in the proviso to paragraph (b) of subarticle (1), for
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the words "according to the deed." there shall be substituted the words "according to the deed:" and immediately
thereafter the following new provisos shall be added:
"Provided further that in the case of a transfer of securities, as defined in article 5 of the Income Tax Act, involving a transfer
of a controlling interest in accordance with prescribed rules, the provisional tax payment shall be equivalent to seven percent of
the higher of the market value and the consideration, and in the case of a transfer to which article 5(9A) of the Income Tax Act
applies, such payment shall be made within fifteen days from the date the chargeable company ceases to be a member of the group:
Provided also that in the case of a transfer of value in securities, as provided for in subarticle (13)(b)(ii) of article 5 of
the Income Tax Act, the provisional tax payment shall be equivalent to seven percent of the gains or profits referred to in
the said subarticle.";
(c) in paragraph (a) of subarticle (2) thereof, for the words "any transfer of assets not subject to tax on capital gains,
or to tax under the provisions of article 4 of the Income Tax Act;" there shall be substituted the words "any transfer
of assets not subject to tax under the provisions of articles 5 and 12 of the Income Tax Act where the transferor submits to the
Commissioner the prescribed form, stating which provision is applicable, and any other relevant documents which the Commissioner
may deem necessary:
Provided that provisional tax shall in any case be paid if article 33 of the Income Tax Act is applicable as a result of claiming
the exemption provided for under article 12(1)(u) of the said Act;"; and
(d) in subarticle (3) thereof, for the words "as the case maybe." there shall be substituted the words "as the
case may be:" and immediately thereafter there shall be added the following new proviso:
"Provided that in the case of a transfer of securities, as defined in article 5 of the Income Tax Act, involving a transfer of
a controlling interest in accordance with prescribed rules, the twenty percent shall be calculated on the higher of the market value
and the consideration.".
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Amendment of article 44 of the principal Act.
(a) in subarticle (2B) thereof, immediately after paragraph (b), there shall be added the following
new paragraph:
"(c) no interest shall run on any tax payable in circumstances where a person has taken action under a Mutual Agreement Procedure
in terms of an arrangement referred to in article 76 of this Act including Convention
90/436/EEC of 23 July 1990 on the elimination of double taxation in connection with the adjustment of profits of associated enterprises,
for the period between the date when the said action under the Mutual Agreement Procedure is initiated and the date when the
issue is concluded under the said procedure."; and
(b) subarticle (3) shall be substituted by the following:
Amendment of article 48 of the principal Act.
"(3) No opposition other than that specifically provided for in this Act shall stay the issue or execution of any executive act obtained thereunder or the paying out of the proceeds of any warrant or sale by auction carried out in pursuance thereof.".
(a) immediately after subarticle (1) thereof, there shall be added the following new subarticles:
"(1A) Notwithstanding the provisions of subarticle (1), in no case shall any refund be made to any person in respect of the year
of assessment 1999 or any subsequent year of assessment unless and until such person has filed all tax returns, which are required
to be furnished under this Act, in respect of the years of assessment 1999 up to and including the year of assessment preceding the
year in which the refund would have been payable but for the application of this subarticle.
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Cap. 406.
(1B) Notwithstanding the provisions of subarticle (1) of this article, in no case shall a ny r efund be made unde r this Act to
a ny person registered for the purpose of the Value Added Tax Act, unless and until such person h a s f i l e d a l l t a x r e t
u r n s o r d e c l a r a t i o n s required to be furnished for the purpose of the Value Added Tax Act in respect of tax periods
u p to a nd i nc l u di ng t h e la s t c o mp le t e t a x period in the year preceding that in which the refund would have been
payable but for the application of this subarticle.";
(b) the present provisions of subarticle (2B) thereof shall be renumbered as paragraph (i) of subarticle (2B), and immediately
thereafter there shall be added the following new paragraph:
"(ii) In the case of a person to whom subarticles (1A) or (1B) apply, any refund which would have been payable but for the
provisions of the said subarticles, shall become due or shall be deemed to have become due, as the case may be, on the last day of
the twelfth month following that in which the tax returns referred to in the said subarticles were furnished.";
(c) (i) immediately after paragraph (a) of subarticle
(4) thereof, there shall be inserted the following new proviso:
"Provided that the conditions set out in paragraphs (i) and (ii) above shall not apply in respect of dividends paid by any company
registered in Malta to any recipient shareholder who is registered for the purpose of this article
48(4) or article 48(4A) of this Act.";
(ii) paragraph (ii) of the last proviso to subarticle (4)
thereof shall be substituted the following:
"(ii) a person resident in Malta, registered for the purpose of making a claim in terms of this subarticle in such manner
as may be prescribed, may also claim a tax refund contemplated by this subarticle with respect to dividends paid from profits allocated
to the foreign income account when such dividend is paid:
1. by a company which was a company registered in Malta on or after 1 January 2007 but was not resident in Malta before that
date; and
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2. by any company which has exercised its option in terms of paragraph (i) of the proviso to article 48(4A)(b) of
this Act; and
3. by any other company registered in Malta out of profits derived by the said company in respect of accounting periods which
commenced on or after 1 January 2011.";
(d) in subarticle (4A) thereof, for paragraph (bb) of the sub-proviso to paragraph 2 of proviso (i) to paragraph (b) thereof,
there shall be substituted the following:
"(bb) The Commissioner may, in his discretion, determine that paragraph 2 above applies to a company if he is of the opinion
that it is likely that in the foreseeable future more than half of the distributable profits of the company will consist of any or
all of the following categories of income:
- profits that will be allocated to the foreign income account;
- profits which are not subject to tax but which would otherwise be allocated to the foreign income account;
- dividends received from an international trading company, including, where applicable, dividends paid after that company has
exercised the option under paragraph 1 of proviso (i);
- income derived from the ownership and, or chartering of any tonnage tax ship as defined in the Merchant Shipping (Taxation
and Other Matters Relating to Shipping Organisations) Regulations, 2004;
- income derived from the ownership and, or chartering of any ship, yacht, boat and any other vessel (in each case not being
a tonnage tax ship as defined in the Merchant Shipping (Taxation and Other Matters Relating to Shipping Organisations) Regulations,
2004) provided that the aforesaid income is derived by a company which was originally incorporated in terms of and
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subject to the Merchant Shipping (Shipping
Organisations - Private Companies) Regulations,
2004 and whose objects were restricted as required under such Regulations;
- income of any company qualifying for benefits in terms of regulation 4, 5 or 6 of the Business Promotion Regulations, 2001:";
and
(e) in subarticle (8) thereof, for the words "following the end of the month in which the refund becomes due" there
shall be substituted the words "following the day on which the refund becomes due".
(2) Articles 55, 56, 57, 58 and 59 to 63 shall come into force on such date as the Minister responsible for finance may, by notice
in the Gazette, establish.
(3) Articles 64 and 65 shall be deemed to have come into force on the 10th November 2009.
(a) in subarticle (2) thereof, for the words "eleven thousand and six hundred and forty-six euro and eighty-seven cents (11,646.87)"
there shall be substituted the words "twenty- five thousand euro (€25,000)"; and
(b) in subarticle (3) thereof, for the words "four hundred and sixty-five euro and eighty-seven cents (465.87)" there
shall be substituted the words "twenty-five thousand euro (€25,000) or an amount equal to three times the duty payable on
any goods in respect of which the offence is committed, whichever shall be the higher".
(a) in subarticle (1) thereof, for the words "shall be guilty of an offence and shall for every such offence be liable, on conviction, to a fine (multa) not exceeding eleven thousand
Amendments to the Excise Duty Act.
Cap. 382.
Amendment of article 13 of the principal Act.
Amendment of article 16 of the principal Act.
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and six hundred and forty-six euro and eighty-seven cents (11,646.87).", there shall be substituted the words "shall
be guilty of an offence and shall for every such offence be liable on conviction to a fine (multa) of not less than five hundred euro (€500) and not more than twenty-five thousand euro (€25,000):"; and immediately
thereafter there shallbe added the following proviso:
"Provided that in the case of a conviction relating to the evasion or attempted evasion of excise duty, the offender shall be
liable to a fine (multa) of not less than three times the excise duty on such excise goods, which fine may exceed twenty-five thousand euro (€25,000:)
Provided further that one-third of this amount shall be deemed as a civil debt owed and payable to the Department of Customs.";
and
Addition of new article 16A to the principal Act.
(b) subarticle (2) thereof shall be deleted.
"Penalty instead of proceedings in terms of this Act.
16A. Notwithstanding any other provision of this Act relating to forfeiture of goods in favour of the Government, in the case of
an irregularity committed by an offender which, if undetected, would involve loss of excise d u t y o n e x c i s e g o o d s n o
t e x c e e d i n g o n e
t h o u s a n d e u r o ( € 1 0 0 0 ) , t h e C o m p t r o l l e r, w h i l s t h e f o r f e i t s t h e g o o d s m a y
, o n acknowledgement of the committed offence
b y t h e o ff e n d e r, r e f r a i n f r o m i n s t i t u t i n g proceedings in terms of this Act and impose a penalty equivalent
to three times the excise
duty endangered, which penalty shall not be less than two hundred and fifty euro (€250).".
Substitution of article 17 of the principal Act.
"17. (1) If any excise goods -
(a) are deposited or concealed in any place with intent to defraud the Government of the excise duty leviable under
this Act; or
(b) are clandestinely or illegally removed from or out of any tax warehouse or place of security in which
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such excise goods have been duly deposited; or
(c) after having been delivered from any tax warehouse or other place of security without payment of duty for removal to any
place authorised by the Comptroller, are not duly delivered at such place; or
(d) are brought into Malta and the payment of excise duty has been evaded or an attempt has been made to evade the payment thereof,
in every such case, such excise goods shall be forfeited, and the offender shall moreover be liable to the penalties laid down in
the last preceding article.
(2) Furthermore, all vehicles, vessels and other means of transport, used or intended to be used for the importation, landing,
removal, keeping, concealing or conveyance of any uncustomed or other goods liable to forfeiture under this Act together with the
property, whether movable or immovable, within which the uncustomed or goods liable to forfeiture are found, shall be forfeited:
Provided that no vessel shall be liable to forfeiture under the provisions of this article unless such vessel is under two hundred
and fifty tons net registered tonnage.
(3) With regard to any vessel of or exceeding two hundred and fifty tons net registered tonnage, it shall be lawful for
the Comptroller, in any case in which in his opinion a responsible officer of such vessel is implicated either actually or by neglect,
to take proceedings in the manner prescribed by article 36 and subject to appeal as laid down in that article, for condemnation
of the said vessel in a sum of twenty-five thousand euro (€25,000). And for this purpose the Comptroller may require, as
to any vessel referred to in this subarticle, the deposit in his hands of a sum of twenty-five thousand euro (€25,000) to abide
by the decision of the court, and in default of payment of such deposit, the Comptroller may detain such vessel.
(4) No claim for damages shall lie against the Comptroller in respect of the payment of any deposit or the detention
of any vessel, vehicle or other goods under this article.
(5) The expression "responsible officer" in this article means and includes the master, mates and engineers of any
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vessel, and in the case of a vessel carrying a passenger certificate, the purser or chief steward.
Amendment of article 18 of the principal Act.
Amendment of article 25 of the principal Act.
Amendment of article 26 of the principal Act.
Addition of new article 29A to the principal Act.
(6) The expression "neglect" includes cases where goods unowned by any of the crew are discovered in a place or places in which they could not reasonably have been put if the responsible officers having supervision of such place or places had exercised proper care, at the time of the loading of the ship or subsequently.".
"Power to grant, refuse or withdraw authorization.
29A. (1) The Comptroller may grant to, refuse to grant or withdraw an authorization from a person to act as a registered excise
trader or authorized warehouse keeper.
(2) The Comptroller may refuse to grant or withdraw an authorization according to subarticle (1) if in the opinion of the Comptroller:
(a) where the applicant is a natural person, the applicant is not a fit and proper person;
(b) where the applicant is a partnership, any of the partners are not fit and proper persons;
(c) where the applicant is a company, any director, shareholder or officer of the company who would be involved in the direction
or control of the company is not a fit and proper person.
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(3) A natural person, partnership or company shall be deemed to be unfit and proper, if amongst others:
(a) they lack honesty, integrity or competence in their dealings with the Comptroller of Customs; or
(b) they lack financial soundness; or
(c) such person has contravened any of the dispositions of this Act or any other Act relating to customs; or
(d) such person has been found guilty of committing a criminal offence or any other offence relating to property and public security,
public trust, government revenue or financial services.
(4) Any person who feels aggrieved by a decision taken by the Comptroller according to subarticle (3), may appeal under article
31 to the Excise Duty Appeals Board.".
63. In subarticle (1) of article 31 of the principal Act, for the words "under article 30" there shall be substituted
the words "under articles 29A and 30".
(a) for the words in the "Rates of Excise Duty" column thereof in respect of the item "Cigarettes", there
shall be substituted the following:
"50.0% of the retail price plus 22.00 Euro per 1000 cigarettes but not less than 117.00 Euro per 1000 cigarettes";
(b) for the words in the "Rates of Excise Duty" column thereof in respect of the item "Cigars and Cigarillos",
there shall be substituted the following:
"16.25 Euro per 1000 units";
(c) for the words in the "Rates of Excise Duty" column thereof in respect of the item "Hand-Rolling Tobacco",
there shall be substituted the following:
Amendment of article 31 of the principal Act.
Amendment of the Third Schedule to the principal Act.
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"72.50 Euro per kg.";
(d) for the words in the "Rates of Excise Duty" column thereof in respect of the item "Other Smoking Tobacco",
there shall be substituted the following:
"72.50 Euro per kg.";
(e) for the words in the "Rates of Excise Duty" column thereof in respect of the item "Pipe Tobacco", there
shall be substituted the following:
"23.40 Euro per kg."; and
(f) for the words in the "Rates of Excise Duty" column thereof in respect of the item "Chewing Tobacco and Snuff",
there shall be substituted the following:
Amendment to the Fourth Schedule to the principal Act.
Amendment to the Value Added Tax Act.
Cap. 406.
Amendment of article 24 of the principal Act.
"31.56 Euro per kg.".
(a) for the words in the "Rates of Excise Duty" column thereof in respect of the item "Electricity falling under
CN Code
2716", there shall be substituted the following: "1.00 Euro per MWh"; and
(b) for the words in the "Rates of Excise Duty" column thereof in respect of the item "Coal and Coke falling within
CN Codes 2701, 2702 and 2704", there shall be substituted the following:
"0.30 Euro per 1 gigajoule, gross calorific value".
(2) The provisions of this Part shall come into force on such date as the Minister responsible for finance may, by notice in the Gazette, establish, and different dates may be so established for different provisions or different purposes of this Part.
"whichever is the later." there shall be substituted the words
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"whichever is the later:" and immediately thereafter there shall be added the following proviso:
"Provided that where a person to whom a refund is payable in terms of this subarticle has, by the date the refund claim is made,
failed to submit a return of income in respect of the year of assessment 1999 or any subsequent years of assessment by the date required
to be submitted in terms of the provisions of the Income Tax Management Act and such failure persists until the date such refund
becomes payable, any such refund shall not be paid to such person and shall be withheld by the Commissioner until such time as the
said return of income is submitted; and provided further that notwithstanding any other provisions of this Act, no interest shall
be due by the Commissioner in respect of the period during which the said refund was withheld on account of failure to submit a return
of income for the purposes of the Income Tax Management Act.".
68. In subarticle (2) of article 30 of the principal Act, immediately after the words "intra-Community acquisitions" there
shall be inserted the words "and purchases made for which the customer is liable for the payment of the tax pursuant to articles
20(2)(b) and 20(2)(c) of the Act".
Amendment of article 30 of the principal Act.
Amendment to the Eco- Contribution Act.
Cap. 473.
Addition of new articles 13C and
13D to the
principal Act.
"Statements and assessments to constitute executive title.
Cap. 12.
13C. Any statement issued by the c o m p e t e n t a u t h o r i t y a n d a n y a s s e s s m e n t issued in terms
of article 13A showing any amount of eco-contribution due by a person s h a l l , u n l e s s t h e c o n t r a r y i s p r o v e
d , b e sufficient evidence that that amount is due to the competent authority by that person and shall constitute an executive title
within the meaning and for the purposes of Title VII of P a r t I o f B o o k S e c o n d o f t h e C o d e o f Organization
and Civil Procedure.
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Validity of statements, etc.
13D. (1) Any statement, assessment, warrant or other proceeding purporting to be made in accordance with the provisions
of this Act shall not be deemed to be void or voidable for want of form or be affected by the reason of a mistake, defect or omission
therein, if the same is in substance and effect in conformity with or according to the intent and meaning of this Act.
(2) In the case of a body of persons it shall be sufficient if only the name of the body of persons a ppears on any notice, wa
rrant or proceeding, including any proceeding in the Court of Appeal, issued or made under or for the purposes of this Act.".
Amendment of article 16 of the principal Act.
"(3) No criminal proceedings under this Act shall be taken except at the instance or with the sanction of the competent
authority, and proceedings that have been so taken may, a t a n y t i m e b e f o r e f i n a l j u d g m e n t , b e withdrawn
at the request of the competent authority.
(4) Notwithstanding the provisions of the
Cap. 9.
Criminal Code, the Attorney General shall have a right of appeal to the Court of Criminal Appeal from any judgment given by the Court
o f M a g i s t r a t e s i n r e s p e c t o f c r i m i n a l proceedings under this Act.
(5) The institution of proceedings or the imposition of a penalty for any offence under this Act shall not relieve any person from
p r o s e c u t i o n u n d e r a n y o t h e r l a w o r f r o m liability to the payment of any tax for which he is or may be liable
under this Act, and the institution of proceedings or the imposition of a penalty for any offence under any other law or the payment
of any tax under this Act shall not relieve any person from any prosecution or penalty under this Act in respect of an offence committed
against this Act.
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(6) In any criminal proceedings under this A c t th e c o m p e te n t a u th o r i t y o r a ny o th e r officer designated by
the competent authority may, notwithstanding the provisions of any other law, produce the evidence, plead and otherwise conduct the
prosecution instead of or jointly with the police.
(7) Should the evidence of the competent authority or of the officer designated by the competent authority as aforesaid be required
as part of the case for the prosecution, he shall b e h e a r d b e f o r e a s s u m i n g t h e d u t i e s o f a prosecuting officer
unless the necessity of his g i v i n g e v i d e n c e a r i s e s a t a l a t e r s t a g e : p r o v i d e d t h a t t h e C o
m m i s s i o n e r o r o t h e r o f f i c e r a s a f o r e s a i d m a y s t a t e t h e f a c t s c o n s t i t u t i n g t h
e o f f e n c e b e f o r e g i v i n g evidence.".
(a) article 44(c) of the Budget Measures
Implementation Act, 2003 - Act II of 2003;
(b) articles 15 and 16 of the Various Laws
(Amendment) Act, 2003 - Act IX of 2003; and
(c) article 48 of the Budget Measures Implementation
Act, 2004 - Act II of 2004.
Repeal of certain obsolete articles in various Acts.
Passed by the House of Representatives at Sitting No. 205 of the
24th March, 2010.
LOUIS GALEA
Speaker
PAULINE ABELA
Clerk to the House of Representatives
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