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Publicly Owned Companies Notification Form

Last Updated: 09/01/2018

​Introduction

The Commissioner of Inland Revenue 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 4) of the Notification Form 
 
a. 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:
 
i. The stock exchange on which the listing has been made; and
ii.The date of the original / first listing.
 
b. Document(s) showing evidence that the relevant stock exchange is a Qualifying Stock Exchange. For this purpose the following documentation would be required:
 
i. In relation to Part 2, Point 1) of the Notification form, a copy of the list published under Art.47 of EU Directive 2004/39/EC - Markets in Financial Instruments Directive (MIFID)1;
 
OR

ii.In relation to Part 2, Point 2) of the Notification form, a copy of the list of members of the World Federation of Exchanges2.

2. Where the Determination is applicable through the satifaction of the conditions listed in Section B of the Determination the following documentation would be required in relation to Part 2, Points 5) to 7) of the Notification Form-:
 
i). In relation to Part 2, Point 5) 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 6) 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: United States)
b. S&P Europe (Region: Europe)
c. S&P/TOPIX 150 (Region: Japan)
d. S&P/TSX 60 (Region: Canada)
e. S&P/ASX All Australian 50 (Region: Australia)
f. S&P Asia 50 (Region: Asia Ex-Japan)
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 Index3.
 
 OR

iiii) In relation to Part 2, Point 7) 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:  
 
i.  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

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

3. In all cases, 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 reulatory 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.
 
1 The EU Commission is required to publish a list of all regulated markets in the Official Journal of the European Union and update it at least once a year. The EU Commission is also required to publish and update the list on its website, each time the Member States communicate changes to their lists.
 
 
 
 
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 a) 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 a) or b) above, to sign and submit the Notification Form on their behalf of the said shareholder or officer.
  
The person signing the Notification Form needs to clearly indicate in which category he or she falls when filling Part 2, Points 9) to 11) of the said Form.
  
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 International Tax Unit, c/o MFSA, Notabile Road, Attard 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 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.