Income Tax Management Act (Cap. 372), article 5

5. (1) Further to the provisions contained in Part IX of the Income Tax Act , a person not resident in Malta (hereinafter in this Act referred to as "a non-resident person") shall be assessable and chargeable in the name of his trustee, guardian, tutor, curator or committee, or of any attorney, fa ctor, agent, receiver, branch or manager, whether such attorney, factor, agent, receiver, branch or manager has the receipt of the income or not, in like manner an d to the like amount as such non-resident person would be assessed a nd charged to tax in Malta as if he were in the actual receipt of such income. A non-resident person shall be assessable and chargeable in respect of any income arising, whether directly or indirectly, through or from any attorneyship , factorship, agency, receivers hip, branch or management, and shall be so assessable and chargeable in the name of the attorney, factor , agent, receiver, branch or ma nager. (2) Where the registered holder of a share holds such share for the benefit of another person, th e Commissioner shall be entitl ed to treat such registered holder as beneficially entitled to such s hare except as provided in sub-article (3). INCOME TAX MANAGEMENT [CAP. 372. 5 Cap. 330. Cap. 331. Cap. 345. Cap. 370. ( 3 ) W h e r e t h e r e g i s t e r e d h o l d e r o f a s h a r e h a d b e e n l i c e n s e d under article 51A of the Malta F inancial Services Authority Act and until such time that he is so licensed or is authorised or otherwise permitted to act as a trustee under article 43 or 43A of the Trusts and Trustees Act , a central securities depository authorised under article 24 of the Financial Markets Act or is licensed un der the Investment Services Act , to carry out activities within paragraph 4 of the First Schedule to that Act and provides the Commissioner with a certificate in writing that he holds the share for the b enefit of a person or persons all of whom are not resident in Malta withi n the meaning of the Income Tax Acts, the Commissioner shall not trea t the registered holder of the share as beneficially entitled to it: Provided that this sub-article shall only apply where the certificate referred to herein includes the names and taxpayer identification numbers of the person or persons for the benefit of which the share is held and of their u ltimate beneficial owners, and any other details as the Commissioner may require. ( 4 ) A p e r s o n r e f e r r e d t o i n s u b -article (3) who issues a false certificate to the Commissioner shall be guilty of making a fal se statement within the mean ing of article 52(1)( b). Cap. 123. (5) The master of any ship owned or chartered by a non- resident person who is chargea ble under article 28 of the Income Tax Act shall (though not to the exclusion of any other agent) be deemed the agent of such non-resident person for all the purpos es of the Income Tax Acts. (6) Where a non-resident person carried on business with a resident person, and it appears to the Commissioner that, owing to the close connection between the resident person and the non- resident person and to the substantial control exercised by the non- resident person over the resident person, the course of busines s between those persons can be so arranged and is so arranged tha t the business done by the resident person in pursuance of his connection with the non-resident p erson produces to the residen t person either no profits or less than the ordinary profits whic h might be expected to arise from the business, the non-resident person shall be assessable and chargeable to tax in the name of the resident person as if the reside nt person were an agent of the non- resident person. (7) Where it appears to the Commissioner that the true amount of the gains or profits of any non-resident person chargeable t o tax in the name of a resident person cannot in any individual case be readily ascertained, the Commissioner may, if he thinks fit, as sess and charge the non-resident person on a fair and reasonable percentage of the turnover of the business done by the non-resi dent person through or with the resident person in whose name he is chargeable as aforesaid and in such case the provisions of the Income Tax Acts as to the delive ry of returns or particulars by persons acting on behalf of others shall extend so as to requir e returns or particulars to be furnished by the resident person o f the business so done by the non-resident person through or with the resident person, in the same manner as returns or particulars are to be delivered by persons acting for incapacitated or non-residen t 6 CAP. 372.] INCOME TAX MANAGEMENT persons in respect of income to be charged: Provided that the amount of the percentage shall in each case be determined having regard to the nature of the business and shall, when determined by the Commissioner, be subject to an appeal as provided by articles 35 and 37. (8) Nothing in this article shall render a non-resident person chargeable in the name of a brok er or general commission agent or other agent where such broker, general commission agent or agen t is not an authorised person carrying on the regular agency of t he non-resident person, or a person chargeable as if he were an ag ent in pursuance of sub-articles (5), (6) and (7), in respect of ga ins or profits arising from sales or transactions carried out through such a broker or agent. (9) The fact that a non-resident p erson executes s ales or carrie s out transactions with other non-re sidents in circumstances whic h would make him chargeable in pursuance of sub-articles (5) and (6) in the name of a resident person shall not of itself make him chargeable in respect of gains o r profits arising from those sa les or transactions. (10) Where a non-resident person is chargeable to tax in the name of any attorney, factor, ag ent, receiver, branch or manage r in respect of any gains or profits arising from the sale of goods or produce manufactured or produced out of Malta by the non-reside nt person, the person in whose name the non-resident person is so chargeable may, if he thinks fit , apply to the Commissioner to have the assessment to tax in respect o f those gains or profits made or amended on the basis of the profits which might reasonably be expected to have been earned by a merchant or, where the goods are retailed by or on behalf of the manufacturer or producer, by a retailer of the goods sold, who had bought from the manufacturer or producer direct, and, on the proof to the satisfaction of the Commissioner of the amount of the profits on the basis aforesai d, the assessment shall be mad e or amended accordingly. Cap. 370. (11) A non-resident person shall not, by virtue of this article, be assessable or chargeable to tax in the name of an agent or othe r representative in respect of gains or profits arising to the no n- resident person resulting from t he provision in Malta by the ag ent or such other representative of any of the services listed in t he First Schedule to the Investment Services Act , provided that: (a) the investment services concerned are carried out in the ordinary course of such business; and (b) the remuneration which the agent or other representative receives for the provision of investment services to the non-resident p erson is at a rate which is not less than that which is customary for that class of business, and in the case of an agent or other representative who provid es investment services as part only of a business, the provisions of paragraphs (a) and ( b) shall apply as if that part were a separate business. INCOME TAX MANAGEMENT [CAP. 372. 7 (12) For the purposes of sub-article (11) an agent or other representative shall be deemed to have carried out an investmen t service on behalf of his princi pal whether he undertakes the transaction himself or gives instructions to another person. (13) The activities of the agent o r other representative shall n ot affect the residence of the non-r esident person for tax purpose s. Acts to be done by trustees, etc.