Publicly Owned Companies Notification Form

The Commissioner for Tax and Customs has published a Determination in terms of Art.43(6)(f) of the Income Tax Act.

The Determination is only relevant where a public company or other entity (hereinafter referred to as "The Public Entity"), which is a direct or indirect shareholder of a company registered in Malta (hereinafter referred to as "The Company Registered in Malta"), has shares, or other similar securities, issued by it or on its behalf, listed for trading on a stock exchange referred to in Section C of the Determination (hereinafter referred to as "Qualifying Stock Exchange").

In order for the Determination to apply, a correctly and completely filled-in Notification Form needs to be submitted to the Commissioner. 

Supporting Documentation

The Determination requires that a Notification Form needs to be supported by such documentation as may be appropriate.

The following is a (non-exhaustive) list of the type of supporting documentation one would typically require when making a submission of the Notification Form to the Commissioner. The required documentation may of course vary depending on whether the public company or entity qualifies under Section A or Section B of the Determination: 

1.     In all cases the applicant must provide evidence that the Public Entity is listed on a Qualifying Stock Exchange. Thus the following documentation would be required in relation to Part 2, Points 1) to 6) of the Notification Form:

i.      Document(s) evidencing the fact that shares or other securities have been listed by, or on behalf of, the Public Entity. In this regard, any publicly available evidence of this fact should suffice. The document(s), however, must clearly evidence:
 

a. The stock exchange on which the listing has been made; and
b. The date of the original / first listing.
 

ii.     Document(s) showing evidence that the relevant stock exchange is a Qualifying Stock Exchange. For this purpose the following documentation would be required:
 

a. In relation to Part 2, Point 1) of the Notification form, an extract from the register of regulated markets maintained by the European Securities and Markets Authority (ESMA) indicating the relative Qualifying Stock Exchange¹;

OR

b. In relation to Part 2, Point 2) of the Notification form, a copy of the list of members of the World Federation of Exchanges indicating the relative Qualifying Stock Exchange²;

OR

c. In relation to Part 2, Point 4) of the Notification form, a copy of the Guidance Note – Recognised Stock Exchange – United Kingdom issued by the MTCA indicating the relative Qualifying Stock Exchange³.
 

2.     Where the Determination is applicable through the satisfaction of the conditions listed in Section B of the Determination the following documentation would be required in relation to Part 2, Points 7) to 9) of the Notification Form-:
 

i.      In relation to Part 2, Point 7) of the Notification Form, documentation showing evidence that the market capitalization of the Public Entity is equal to, or exceeds, EUR 1 billion. Any publicly available evidence would suffice for this purpose.

OR

ii.     In relation to Part 2, Point 8) of the Notification Form, documentation showing evidence that the Public Entity is a constituent of the Standard and Poor’s (S&P) Global 1200 Index. The S&P Global 1200 is a composite of seven headline indices:
 

a. S&P 500 (Region: North America)
b. S&P Europe 350 (Region: Europe)
c. S&P/TOPIX 150 (Region: Asia/Pacific)
d. S&P/TSX 60 (Region: North America)
e. S&P/ASX All Australian 50 (Region: Asia/Pacific)
f. S&P Asia 50 (Region: Asia/Pacific)
g. S&P Latin America 40 (Region: Latin America)
  

As a result, reference must be made to the constituents of the relevant underlying index. Any publicly available evidence would suffice for this purpose provided that it evidences that the company is a constituent of one of the indices underlying the S&P Global 1200 Index⁴.
 

OR

iii.   In relation to Part 2, Point 9) of the Notification Form, documentation showing evidence that no registration of an interest equal to or in excess of 5% of the total has at the end of the previous financial period of the relevant Public Entity been made on the register of members, or other equivalent documentation, of the said Public Entity, in favour of any person whose residence results, from the face of the said register or document (as it stands on the last day of the Public Entity’s previous financial period), to be in Malta.

In this case, one of two alternative documents will suffice:  
 

a.  A certified copy of the register of members of the Public Entity as it stands on the last day of the Public Entity’s previous financial period (this document must be updated and resubmitted annually). 

OR

b. A signed declaration to that effect signed by an officer of the Public Entity (this declaration must be updated and resubmitted annually).
 

3.     Where the Determination is applicable through the satisfaction of the conditions listed in Section B of the Determination, the following documentation is also required in order to provide evidence that an officer of The Company Registered in Malta has formally communicated to an officer of the Public Entity that the officers of the said Public Entity are required to, immediately and without delay, notify the officers of The Company Registered in Malta if:
 

i.       any individual ordinarily resident and domiciled in Malta declares to the Public Entity that he holds an interest of 5% or more in the Public Entity.
 

OR

ii.     The Public Entity has been notified that such a declaration has been made to:

a. The Qualifying Stock Exchange; or
b. Any regulatory authority; or
c. Any oversight authority.
 

Note: This formal communication needs to be repeated by an officer of The Company Registered in Malta to an officer of the Public Entity every three years from the date of the original formal communication and evidence thereof needs to be duly provided to the Inland Revenue Department.
 

4.     In all cases, where the application is submitted by a tax professional on behalf of the applicant, a copy of the express authorization must be attached.
 

5.     In all cases, a copy of the Group organisation structure showing, clearly identifying The Company Registered in Malta, any intermediary parent entities where applicable, and the Public Entity.

¹ Available from https://registers.esma.europa.eu/publication/searchRegister?core=esma_registers_upreg 

² Available from https://www.world-exchanges.org/membership-events#member-list 

³ Available from https://cfr.gov.mt/en/inlandrevenue/legal-technical/Documents/MTCA%20GUIDANCE%20NOTE%20ON%20RECOGNIZED%20STOCK%20EXCHANGES%20-%20UNITED%20KINGDOM.pdf 

⁴ Refer to https://www.spglobal.com/spdji/en/documents/methodologies/methodology-sp-global-1200.pdf

Who May Submit the Notification Form 

The following persons may submit the Notification Form:
 

i.       The direct shareholder of The Company Registered in Malta who is registered for the purposes of article 48(4) or article 48(4A) of the Income Tax Management Act;
  

OR
 

ii.     An officer of The Company Registered in Malta with respect to which the direct shareholder referred to in i) above is so registered for the purposes of article 48(4) or article 48(4A) of the Income Tax Management Act;
  

OR
 

iii.    A tax professional, as defined in item 1 of the Schedule to the Income Tax Act, expressly authorized, in writing, by the direct shareholder or the officer respectively referred to in i) or ii) above, to sign and submit the Notification Form on their behalf of the said shareholder or officer. 

The person signing Part 3 of the Notification Form needs to clearly indicate in which category he or she falls when filling Part 2, Points 11) to 13) of the said Form. 

Contact Details 

Part 4 of the Notification Form should include the details of the person to whom the MTCA may contact in relation to the application. 

Date by Which the Notification Form and Supporting Documentation is to be Submitted  

The Notification Form and supporting documentation need to be submitted either within 90 days from the date of issuance of the Determination (i.e. by 30 November 2010), or prior to the date on which the provisions of Article 43(6) of the Act would have otherwise first found application with regard to a particular case, whichever is the later. 

Where to Submit the Notification Form and Supporting Documentation 

The Notification Form and supporting documentation need to be submitted to the MTCA, AM Business Centre, Labour Road, Zejtun ZTN 2401 and the envelope needs to be clearly marked as “Art. 43(6)(f) ITA Determination Notification Form”. 

Additional Documentation 

The Commissioner has 21 days from the date of receipt of the Notification Form that is duly completed in all respects within which to make a first request for additional documentation. The Commissioner may make further requests to the contact person detailed in Part 4 of the Notification Form for information/documentation should it be considered necessary. It is only once the Commissioner is satisfied that the information/documentation provided is good and sufficient (or where the Commissioner does not request information/ documentation within the said 21-day period) that the Determination will apply. 

Note: Where the Public Entity is listed on the Malta Stock Exchange, the express consent of the Commissioner is required for the Determination to apply. 

Penalties  

The provisions of Article 52 of the Income Tax Management Act may be pertinent in the case of incorrect information which has a material effect on the applicability or otherwise of the Determination.

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