Private Wealth 2021 Comparisons

Last Updated August 12, 2021

Law and Practice

Authors



Fenech & Fenech Advocates was established in 1891 and is a multidisciplinary full-service law firm with a predominantly international clientele providing tailored, value-driven legal services across a wide range of practice areas. The firm's tax and immigration law department is a leading tax law practice in Malta, advising generally on direct and indirect tax, personal tax and immigration issues. The firm's in-house corporate group, the Fenlex Group, includes a team of experienced tax accountants providing tax advisory, payroll and tax/VAT compliance services, as well as personal tax services, to the firm’s private clients. The firm offers a comprehensive, personalised service to its private clients, providing legal advice and assistance covering all relevant aspects – eg, taxation, residence (including tax residence), citizenship applications, immigration, real estate conveyancing, advice on succession law and family law, and banking – and provides support with respect to the practical aspects of relocating to Malta.

The Income Tax Act (ITA) brings to charge income tax and capital gains on a limited number of chargeable assets, with respect to inter alia individuals, companies, trusts, foundations and partnerships.

Malta does not currently have any wealth tax, gift tax or inheritance tax in force, but the Duty on Documents and Transfers Act (DDTA) levies transfer duty (stamp duty) on the transfer of a limited number of assets, both during one’s lifetime and on death.

Individuals

Individuals may become tax resident in Malta in one of two ways:

  • by spending 183 days or more in Malta over a 12-month period; or
  • by moving to Malta with the intention of residing there indefinitely, basing themselves in Malta and only spending as much time away for business or leisure purposes as would be in line with a claim that one is residing in Malta.

The ITA applies the British concepts of "residence" and "domicile", as well as that of "ordinary residence" (Malta’s tax laws date back to when it was a British colony). In fact, Malta also operates a similar remittance-based system of taxation for individuals (and other persons alike). Accordingly, individuals who are resident but not domiciled in Malta (so-called "res non-doms") for tax purposes are subject to tax in Malta on:

  • foreign-sourced income, but only to the extent it is remitted to Malta;
  • income arising in Malta; and
  • capital gains arising in Malta.

These principles, and supplementary interpretative guidance on a number of practical issues that apply to individuals who are resident in Malta and benefit from the remittance basis of taxation, are now set out in a Revenue Guideline entitled "The Remittance Basis of Taxation for Individuals under the Income Tax Act" (the Guideline), supplemented by a Guideline entitled “Tax Residence” and, more recently, one entitled “Foreign Workers”, timed to coincide with Malta’s offering of a visa or residence permit to digital nomads interested in spending time there. The Guideline provides guidance on several key issues, such as the principle that an individual who moves to Malta to establish his or her residence there becomes tax resident there as of the date of his or her arrival, regardless of the duration of their stay in Malta in any particular year, and on issues surrounding remittances used to cover "ordinary expenses" and so on. Individuals who are "res non-dom" (ie, not beneficiaries under any one of the tax programmes discussed below) are now subject to a minimum annual tax charge of EUR5,000, assuming said individual has been in receipt of at least EUR35,000 of foreign-sourced income in the tax year concerned.

Self-assessment

Malta operates a self-assessment system of taxation. Individuals who are tax residents in Malta are taxed at progressive rates of tax, with the maximum tax band reaching 35%. Individuals may opt to apply "single", "married" or "parent" tax rates, the latter two where applicable and subject to statutory conditions.

The tax year for individuals is the calendar year, with said individuals being obliged to submit a tax return, where applicable, by 30 June of the following year. Tax payable on certain forms of income, such as employment income, is deducted at source. Where tax on a particular source of income is not deducted at source, the taxpayer shall become subject to the payment of provisional tax thereon (payable in three instalments throughout the tax year on account of the estimated current tax year liability).

Tax programmes

Malta has several attractive tax programmes in place, open to both EU/EEA/Swiss and non-EU/EEA/Swiss nationals, with the most commonly utilised programmes being the Residence Programme (TRP) and the Global Residence Programme (GRP). A key benefit of both programmes is that beneficiaries benefit from a flat 15% rate of tax on any foreign-sourced income remitted to Malta, subject to a minimum annual tax payment of EUR15,000. In light of the fact that the funds remitted to Malta to cover ordinary expenses are now deemed to be income in nature, as per the Guideline, the tax programmes may also be attractive to individuals who may not necessarily remit large amounts of foreign-sourced income to Malta, opting to remit capital or capital gains to Malta instead, the amounts of which would thus be taxed in Malta at this reduced rate. Beneficiaries under the GRP are also issued with a residence card, which also acts as a Schengen visa.

Companies

A Maltese company, as defined, is deemed to be resident and domiciled in Malta by reason of its incorporation in terms of Maltese law and, accordingly, is taxable in Malta on a worldwide basis, subject to any applicable double tax treaties. A foreign company that is effectively managed and controlled in Malta is tax resident in Malta and, accordingly, is taxable on a remittance basis. For income tax purposes, the term "company" includes other entities, such as partnerships and foundations, either by operation of the law or upon registration by the entity concerned to be taxed as such.

The standard corporate tax rate applied to taxable income (ie, income minus a generous range of tax deductions, including the recently introduced notional interest deduction that intends to provide for equivalent tax treatment of debt and equity financing, by allowing an additional deduction for the amount of return on equity financing – eg, retained earnings, etc) is 35%. When a company distributes dividends out of profits on which it has paid tax at 35%, no further tax is due by the shareholders and a credit for the tax paid by the distributing company is available to the shareholders against their tax liability in terms of the full imputation system of taxation applicable to companies. Subject to statutory conditions, a dividend payment may trigger a right in the shareholder’s hands to a tax-exempt refund of part or all of the Maltese tax paid by the company on the distributed profits. The standard tax refund is 6/7.

Participation exemption

The ITA also includes an attractive participation exemption, covering holdings of as little as 5% of equity, subject to various other conditions. The exemption applies inter alia to any gains or profits that a resident corporate taxpayer may derive from a holding (covering shareholdings, partnership interests, interests in investment funds, etc) that qualifies as a "participating holding", subject as always to statutory conditions.

Tax grouping

More recently, Malta has introduced tax grouping rules applying to companies, as defined, and allowing a group to be treated as a "fiscal unit" for income tax purposes. Where a group exercises this option, the parent company (which may be non-resident) shall become the "principal taxpayer", with the underlying subsidiaries being treated as "transparent subsidiaries". The Rules regulate inter alia the manner of computation of the group’s chargeable income. Intra-group transactions are generally to be ignored; the same goes for dividends, the payment of tax by subsidiaries and any resulting right to a tax refund at the level of the parent, with the resulting net tax charge being payable.

Foundations

Foundations are regulated in terms of the Civil Code, which includes a full set of rules covering all aspects of foundations, including the creation, administration and termination thereof. Four types of foundations are catered for:

  • the social/purpose foundation;
  • the public benefit foundation;
  • the private benefit foundation; and
  • the private interest foundation (any reference herein to a foundation should be construed as a reference to a private interest foundation), which is commonly availed of by families.

By default, a foundation is taxed as a company (see above). However, a foundation may opt to be taxed as a trust for tax purposes (see below) – eg, where the assets are located outside of Malta and beneficiaries are not resident and domiciled in Malta; this option, once exercised, is irrevocable. If so taxed, the principle of tax transparency shall apply.

Trusts

Malta has a fully fledged trust law, largely modelled on Anglo-Saxon trust law. In addition to the succession planning benefits associated with trusts (and foundations alike), trusts (and foundations that opt to be treated as trusts for tax purposes) may be interesting from a tax perspective for individuals who are non-residents or, being tax resident in Malta, are not domiciled there.

From a tax perspective:

  • a trust falls within the scope of Maltese tax where one of its trustees is resident in Malta for tax purposes and tax shall be payable on any income attributable to said trust, subject to the application of tax transparency. In addition, a trust is always taxable on income and capital gains arising in Malta;
  • income attributable to a trust means the aggregate of any relevant income that has accrued to, or is derived by, a trustee/s of a trust from property that was settled in such trust and from property that was acquired in the administration of such trust, including any income from the employment of such property; and
  • a trust may also opt to be taxed as a company for income tax purposes. This option is only available to trusts where the income attributable to the trust is comprised solely of income in the form of royalties, dividends, capital gains, interest, rents or any other income from investments.

Where a trust does not elect to be treated as a company for tax purposes, then the principles of tax transparency may apply to the trust in specific cases, such as where:

  • all the income attributable to a trust consists of income arising outside of Malta or income that benefits from exemptions in terms of Article 12(1)(c) of the ITA; and
  • all the beneficiaries of the trust are persons who are either not ordinarily resident in Malta or not domiciled in Malta, where said trust’s income might fall outside the scope of Maltese tax altogether should it, for instance, be comprised solely of foreign-sourced income deemed to have thus been derived directly by beneficiaries who are resident but not domiciled in Malta, where said income has not been remitted to Malta.

Capital Gains Tax

Article 5 of the ITA brings to charge any gains realised upon the transfer of a very limited number of assets, including securities, Maltese real estate (unless subject to Property Transfer Tax), a business, intellectual property, and the beneficial interest in a trust. Assets such as cash, jewellery, artwork, cars and vessels are excluded, amongst others. As will be detailed below, these "personal" assets are also not subject to any form of capital or wealth tax, nor to any form of inheritance tax.

The ITA caters for several exemptions from capital gains tax. One such exemption relates to a transfer of shares in a Maltese company that is not a "property company", where the shareholder is not tax resident in Malta, and where the company is not owned or controlled directly or indirectly by individuals who are resident and domiciled in Malta. Other exemptions cover the sale of one’s residence, donations of chargeable assets to family members, and so forth.

Transfer Duty

The DDTA brings to charge transfers of marketable securities and partnership interests, if the relevant document is executed in Malta or, if executed outside Malta, when said document is made use of in Malta, subject to certain exceptions, and transfers of immovable property in Malta, amongst others.

The default rate of transfer duty on transfers of marketable securities and partnership interests is 2%, going up to 5% if the company/partnership owns or has real rights over immovable property in Malta.

A company/partnership may, however, be entitled to a duty exemption covering acquisitions or disposals of marketable securities issued by companies locally as well as acquisitions or disposals by said company/partnership of marketable securities.

Transfers of immovable property in Malta are subject to duty at the rate of 5%, applying to transfers inter vivos and causa mortis alike. Having said that, the DDTA caters for reduced rates of transfer duty and several exemptions, such as the first time buyers scheme, which is applicable to individuals purchasing their residential home for the first time in Malta, and exemption upon the transfer of one’s home to one’s heirs upon death, subject to statutory conditions.

Property Tax

Malta does not currently impose any taxes on property on the basis of ownership. In addition to transfer duty (as indicated above), income tax is charged in the form of a property transfer tax under the ITA upon transfers (widely defined) of property or, in certain instances, alternatively with respect to any capital gains realised upon transfers of property inter vivos.

Maltese estate and transfer tax laws offer a significant level of stability, having been subject to relatively few changes over the last few decades and, when made, these changes have typically benefitted the taxpayer. This has also been the case with the laws affecting the tax rules applicable to high net worth individuals, trusts, foundations and estates generally.

The recent COVID-19 pandemic has not changed the government’s approach in this regard. Whilst the government has thrown significant amounts at the economy to date, in terms of relief for struggling businesses, it has stated that it does not currently intend to raise taxes to cover this.

Malta has transposed the EU Administrative Cooperation in the field of Taxation Directive (DAC) and all amendments thereto, including the Common Reporting Standard and the Tax Intermediaries Directive (DAC 6), into domestic law.

Likewise, the US Foreign Account Tax Compliance Act has also been transposed into Maltese law, with intermediaries being required to report financial account information to the US authorities.

Over the past few years, there has been an increase in families wishing to plan the succession of their family business, which in turn led to the introduction of the Family Business Act. This Act introduced a regulatory framework for registered family businesses, as defined, catering inter alia for several fiscal incentives linked to facilitating a successful business transfer during the lifetime of the owners, and for support measures post-transfer.

It is often the case that older generations may intend to plan for a transfer of wealth, but are psychologically less prepared to do so than they think and the plan in question is rarely executed. This being said, it is quite common for older generations to donate shares in family businesses to their children during their lifetime (as such a donation may be subject to a capital gains tax exemption in the hands of the transferor), with the older generation retaining the right of usufruct over those shares for a period of time or, at times, for their lifetime. It is also common for older generations to retain a minority percentage shareholding with quasi full control over the business, through the introduction of weighted voting rights at board level or veto powers.

Traditionally, British private international law rules have been applied by Maltese courts when faced with cross-border property and succession law matters. Thus, Maltese courts opted for the system of scission, whereby immovable property is regulated by the lex situs and movable property is regulated by the lex domicilii at the time of death.

These rules are now subject to Regulation 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions, and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (the Regulation), which applies to persons who died on or after 17 August 2015. The Regulation is binding throughout the European Union, with the exception of Denmark, the UK (at the time when it was an EU Member State) and Ireland (which has opted out of its application). The participating remaining EU Member States will apply the rules of the Regulation even in cases involving citizens or residents of third countries (eg, Switzerland or the USA), particularly if they own assets such as immovable property and real estate within the EU. The Regulation achieves a degree of harmonisation of private international law rules, enabling individuals to organise more efficiently and more rapidly their successions within the area of freedom, security and justice.

Although only EU Member States and EU residents are technically bound by the Regulation, it is intended to apply to estates on a worldwide basis. The law applicable to the succession of the deceased as a whole shall be that of the deceased’s country of habitual residence at the time of death, unless the deceased has opted to apply the succession laws of his or her country of nationality. In more recent times, the availability to high net worth individuals of second passports may have an impact on this aspect of their lives, in terms of giving them more options in the choice of applicable succession laws.

The Civil Code provides for a form of forced heirship, whereby a portion of the deceased’s property is reserved by law in favour of the descendants and the surviving spouse of the deceased.

Accordingly, the descendants and/or the surviving spouse of the deceased are generally entitled to a credit of the value of the reserved portion against the deceased’s estate. Said credit is due with interest at the rate of 8% accruing to such credit from the date of the opening of succession if the reserved portion is claimed within two years from such date, or from the date of service of a judicial order if the claim is made after the expiration of said two-year period.

The actual amount reserved is regulated by law and depends on the existence of surviving descendants and/or spouse, if any. In terms of the Civil Code, it is unlawful for the testator to encumber the reserved portion with any burden or condition and, therefore, the reserved portion is calculated on the whole estate, after deducting the debts due by the estate and any funeral expenses incurred. To this end, the estate is deemed to include the property disposed of by the testator under a gratuitous title, even in contemplation of marriage, in favour of any person whomsoever, with the exception of such expenses as may have been incurred for the education of any of the children or other descendants.

Deprived/Reserved Inheritance

Besides the grounds on which a person may become unworthy to inherit generally (as defined in the Civil Code), the persons entitled by law to a reserved portion may also be deprived of the reserved portion if the testator makes a specific declaration to this effect based on special grounds specified in the Civil Code. This declaration must be stated in a will of the testator.

In relation to the reserved portion, the law provides that testamentary dispositions exceeding the disposable portion shall be liable to abatement and limited to that portion at the time of the opening of the succession, provided that a demand for abatement is made within the time established by law. For the purposes of calculating the abatement, the property of the deceased shall be deemed to include all their property at the time of death, including property disposed of by donation (calculated at the value at the time of the donation).

It is legally possible to renounce one’s right to the reserved portion.

Matrimonial Regimes

The Civil Code caters for the following three types of marriage contracts, more commonly referred to as matrimonial regimes:

  • community of acquests;
  • separation of estates; and
  • community of residue and separate administration.

Community of Acquests

In terms of the Civil Code, the community of acquests shall apply by default to a marriage celebrated in Malta, in the absence of an agreement to the contrary. Accordingly, the spouses are free to choose a matrimonial regime other than the community of acquests to regulate their marriage; should they fail to do so, this is the default regime.

Furthermore, it is important to note that a marriage celebrated outside Malta by persons who subsequently establish themselves in Malta shall also result in the application of the community of acquests between the spouses. However, the spouses may take steps locally to opt for an alternative matrimonial regime to apply to their assets.

These rules are now subject to the application of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced co-operation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, which seeks to harmonise the applicable law with respect to matrimonial regimes across EU Member States.

The community of acquests generally comprises all property acquired by each spouse after marriage, excluding paraphernal property. "Paraphernal property" refers to property acquired by either spouse before the marriage, donations received, and property inherited by either spouse.

The community of acquests is jointly administered by both spouses. Having said that, the Civil Code also caters for extraordinary acts, which require the consent of both spouses. Such extraordinary acts include acts of administration whereby an immovable property or real rights thereon are acquired, constituted or alienated, the borrowing or lending of money (excluding deposits in a bank account) and the settlement of community property on trust, including the variation and revocation of such property settled.

The community of acquests is jointly administered by both spouses. In terms of the Civil Code, either of the spouses may nullify the effect of an act carried out by their spouse with which they do not agree. If one spouse deems there to be maladministration of community property, said spouse may bring about an action to bring the other spouse back into a normative routine. This is possible if there is agreement between the spouses. In the case of disagreement, the spouses have two options:

  • mutually requesting the court to mediate a solution; or
  • instituting an action against the other spouse.

Separation of Estates

Another marriage contract contemplated by the Civil Code is that of the separation of estates, which is a system whereby each spouse retains their part of the estate, with full control and administration thereover. If a couple wishes to apply the separation of estates as their matrimonial regime, they are to appear before a notary to enter into a marriage contract to this effect; such contract is to be registered in the Public Registry.

Community of Residue and Separate Administration

Under the community of residue system, the property that a spouse has and/or acquires prior to marriage remains their own, whereas the property acquired during marriage by each spouse will be held and administered by the spouse who made the acquisition as a sole owner. In practice, this system is rarely applied by couples.

Prenuptial, Antenuptial and Postnuptial Agreements

The Civil Code caters for prenuptial, antenuptial and postnuptial agreements, subject to such agreements following the formalities catered for by law.

With reference to prenuptial agreements specifically, spouses may enter into a prenuptial agreement with other stipulations as to which system of property (matrimonial regime) will prevail during the marriage. It is to be noted that certain clauses (primarily relating to inheritance) may be included in this agreement and are deemed to be valid on the basis that they are included in a prenuptial agreement; their inclusion in a contract other than a prenuptial agreement would be null.

Foreign Marriages

A marriage, whether celebrated in Malta or abroad, shall be valid for all purposes in Malta if:

  • the formalities required for its validity by the law of the country where the marriage is celebrated are observed; and
  • each of the persons to be married is, by the law of the country of their respective domicile, capable of contracting a marriage.

A decision of a foreign court on the status of a married person, or affecting such status, shall be recognised in Malta. The decision must have been handed down by a competent court of the country in which either of the parties to the proceedings is domiciled, or of which either of the parties is a citizen.

The donation of immovable property to one’s spouse, descendants in the direct line or ascendants in the direct line, or to one’s siblings or their descendants in the absence of ascendants and descendants in the direct line, is exempt from capital gains tax in the hands of the transferor in Malta. However, transfer duty is still payable on any such donation.

On a subsequent transfer of that property, the donee is deemed to have acquired the property on the date it was originally acquired by the donor.

If the transfer is made more than five years after the date of donation, the transferor may either:

  • opt to be taxed at 12% of the excess, if any, of the transfer value over the market value; or
  • pay Property Transfer Tax (ranging from 8% to 10%) on the transfer value of the property.

These conditions apply solely where the property does not form part of a project, as defined.

If the transfer is made less than five years after the date of donation, the transfer is not subject to capital gains tax but the transferor is to pay Property Transfer Tax. Accordingly, the transferor shall pay a final withholding tax (again ranging from 5% to 10%) on the transfer value of the property so transferred.

Capital gains tax and transfer duty are both levied on a very limited number of assets (see 1.1 Tax Regimes). In addition, the ITA provides a number of generous exemptions from capital gains tax that act as incentives for asset owners to transfer their wealth to the younger generations tax free – one such exemption covers donations of all chargeable assets to one’s children and grandchildren, including donations of immovable property and securities.

On similar lines, the DDTA provides for a number of exemptions and reduced rates of transfer duty applying to transfers of assets during one’s lifetime and upon death.

Since the exemptions and reduced rates of capital gains tax and transfer duty are already quite generous, this may make the need for complicated succession plans slightly redundant, unless for example an estate is comprised of significant illiquid assets, such as immovable property, the inheritance of which on the owner’s death will trigger a high transfer duty bill that the heirs would need to not only pay but also potentially finance. In such instances, succession planning that achieves a measure of tax deferral may be useful, if only from a cash flow point of view.

This is where trusts and foundations may come into play, keeping in mind that a foundation may also be set up with a number of cells, each of which constitutes a separate patrimony of assets and liabilities, and to which individual asset(s) may be allocated in order to be administered for one or more specific beneficiaries of the foundation to the exclusion of the others. The ITA caters for a number of exemptions from capital gains tax on the settlement of chargeable assets on trust, and likewise on the endowment of such upon a foundation, in either instance when such is set up for the benefit of, inter alia, the settlor/founder’s children and grandchildren.

There is no hard and fast rule regarding the manner in which digital assets are to be treated for succession purposes, as the matter is not currently regulated in Malta.

When considering digital assets such as email accounts or cloud accounts, the starting point should be the terms and conditions the deceased would have accepted with reference to the particular digital asset concerned. Each such set of terms and conditions is to be considered on a case-by-case basis, in order to take a view as to whether or not heirs have acquired a right to access that particular account. It is most often the case that accounts are non-transferable and, accordingly, the service provider would be expected to refuse to provide access to any such account to the account holder’s heirs.

As far as other digital assets such as financial tokens and cryptocurrency are concerned, the same principle applies if there is no private key involved in the ownership thereof. If there is a private key, the heirs may only benefit if they have access to or hold that private key in practice. If financial tokens transferred upon death have the same characteristics as “marketable securities” as defined in the DDTA, transfer duty shall be levied on the transfer thereof to the deceased’s legatees or heirs inheriting such.

Maltese law caters for a wide range of both trusts and foundations. In the case of trusts, in addition to the typical discretionary trust, the law also caters for the settlement of spendthrift trusts, disability trusts and charitable trusts, as well as the concept of a private trust company that can go a long way to granting a number of settlors/a family office stronger controls over the family’s assets. Where foundations are concerned, one can set up a social/purpose foundation where the focus is charitable or social objectives or similar, a public benefit foundation set up for the benefit of public interest beneficiaries such as religious or public organisations, a private benefit foundation that essentially caters for a public purpose vehicle with an element of private benefit included therein, or a private interest foundation, which is the vehicle of choice for a founder wishing to set up a vehicle that will hold and administer assets for his or her benefit and that of his or her family and future generations.

Whilst the foundation is firmly rooted in civil law principles, being a separate legal person to the founder and the beneficiaries, the law has introduced some elements that are akin to the eco environment of the trust, with concepts such as the beneficiary statement that may take the place of a letter of wishes or the role of a protector, amongst others. This may make the Maltese private interest foundation in particular more attractive to a family that is drawn to the trust world but that would be more comfortable with a vehicle they can see, touch and be involved in, to the degree required.

As far as trusts are concerned, the private trust company is subject to a light regulatory regime administered by the financial services authority, and provides a further option to families wishing to structure their wealth. A private trust company may be set up if:

  • its objects and activities are limited to acting as trustee in relation to a specific settlor or settlors and providing administrative services in respect of a specific family trust or trusts;
  • it does not otherwise hold itself out as a trustee to the public; and
  • it does not act habitually as a trustee, in any case in relation to more than five settlors at a time.

The private trust company is interesting for individuals who wish to settle assets on a trust for the benefit of their family, yet retain a level of control over such through their family office or otherwise.

Malta has a fully fledged trust law, introduced in the late 1980s and largely modelled on Jersey trust law. Malta has also adopted the Hague Convention on the Law Applicable to Trusts and on their Recognition, with foreign trusts being recognised thereunder. The validity of a foreign trust and its construction and administration shall be governed by said foreign law and recognised in Malta in terms of the Hague Convention.

A trust falls within the scope of Maltese tax if one of the trustees is resident in Malta for tax purposes, and also when a trust has any income or capital gains arising in Malta. If a foreign trust has Maltese resident beneficiaries but no Malta resident trustees, and no income or capital gains chargeable to tax in Malta, that trust should fall outside the scope of Maltese tax.

However, a trust that falls within the scope of tax may be tax transparent in particular instances – for instance, if all trust assets are located outside of Malta and the trust beneficiaries are individuals who are resident or domiciled in Malta for tax purposes.

If a beneficiary is resident but not domiciled in Malta, where the principle of tax transparency is applicable, the remittance regime will apply and accordingly the foreign-sourced income of the trust that is attributable to that particular beneficiary shall only be brought to charge to tax in Malta if and to the extent that said income is remitted to Malta.

The law caters for irrevocable trusts and for foundations where the right of the founder to terminate the foundation may be limited by the foundation deed.

Both laws provide opportunities to settlors and founders alike to maintain a level of control and/or involvement in the administration of the assets and, in the case of foundations, in the management of the foundation itself. This may be achieved in a number of ways:

  • the client may act as trustee or administrator respectively;
  • both sets of laws cater for the appointment of a protector; and/or
  • the founder may reserve the right to amend the trust or foundation deed, to appoint or remove trustees or administrators respectively, to receive information concerning the management of the assets, and so forth.

The laws in question are drafted so as to provide asset owners considering either type of arrangement a significant amount of flexibility in deciding the level of involvement and/or the extent of powers over the management of same that they wish to retain.

When dealing with asset planning, there is no one vehicle that suits every family’s requirements, and the choice of vehicle typically depends on the asset owner’s needs and plans for the future, whether he or she wishes to retain a measure of control over the manner in which the assets are administered, the extent to which he/she and/or the beneficiaries wish to be involved in the ongoing management thereof same, and the type of regime that best suits from a legal perspective.

As Malta is a civil law jurisdiction, the company has been the vehicle of choice for generations. Given the changing dynamic in family structures over the years, the use of trusts and foundations has relatively increased as they provide a level of flexibility in planning for future generations, particularly where the family dynamic is "non-traditional".

Family businesses – both large and small – have been and remain the key driver of Malta’s economy. In this context, the company has traditionally been the vehicle of choice. More recently, families are increasingly considering trusts and foundations as a means for facilitating the transfer of wealth to future generations and, perhaps more importantly at times, a means to ensure the proper management of long-established businesses for the benefit of all moving forward.

The Family Business Act was introduced fairly recently, and made a significant contribution on the local front to facilitating the transfer of family businesses to the younger generations in a tax-efficient manner, through various tax incentives, thereby increasing the chances of said businesses remaining viable for the future. In most cases, however, the key issue remains control, which the older generations are less than willing at times to relinquish.

A robust shareholders agreement may go a long way to regulating key concerns such as what happens in the case of the marriage of family members (which is crucial in Malta when considering that the default matrimonial regime is the community of acquests) or the manner in which a family member may exit the family business, including rules regulating transfers of shares in the business. Other steps families are taking of late in terms of future-proofing their businesses include the inclusion of independent non-executive directors at board level; said directors may make a significant contribution in terms of offering expert advice on key areas of the business, improving corporate governance standards, and acting as mediators in situations of conflict.

In the case of a transfer of shares in a Maltese company, the local capital gains tax rules distinguish between a transfer of a controlling interest and that of a smaller holding. A transfer of a controlling interest shall be deemed to have been made at the higher of the consideration and the market value of the shares. However, when dealing with the transfer of a non-controlling interest, the transfer value is determined depending on several factors, such as the date of acquisition of the shares in question.

The DDTA applies both in the case of transfers inter vivos and in the case of a transmission of shares on death, but makes no such distinction.

Disputes relating to succession matters are quite common in Malta and very much in line with trends pertaining to such in the rest of Western Europe. Most disputes relate to cases of a spouse or child that has been excluded from the deceased’s will, or been left merely the reserved portion catered for by law, challenging said deceased’s will. Other cases refer to instances of alleged manipulation of elderly people by their spouse or child or carers, with the deceased having been driven to leave significant assets to such individuals or having had their assets depleted by them.

In more recent years, there are cases of allegations of trusts or foundations having been used by the deceased to hide assets from family members, or to provide for second families/partners of which the deceased's family has no knowledge.

The courts do not typically award damages to aggrieved parties in wealth disputes or disputes involving trusts, foundations or similar entities. The thrust of the judgment in said cases is on ensuring that the party in question gets what is rightfully theirs – for instance, where a child is excluded from its parent’s inheritance, said child is awarded assets equivalent to the reserved portion to which it is entitled in terms of law.

The Trust and Trustees Act regulates both corporate and private trustees, as defined. Corporate trustees, typically regulated by the local financial services authority, regularly act as trustees of trusts locally. The Act also caters for private trustees, providing that it is only an individual that may act as a private trustee, and then only if they are related to the settlor, by consanguinity or affinity in the direct line up to any degree or in the collateral line up to the fourth degree inclusively, or if he or she has known the settlor for at least ten years, and in either case provided the individual is not remunerated for their role as trustee (except as permitted by the financial services authority) and does not habitually hold himself or herself out to be a trustee.

On similar lines, in terms of the Civil Code, administrators of foundations may be both corporate (if operating locally, regulated by the local financial services authority) and natural persons.

In terms of standards, whilst the Civil Code specifically regulates the rights and obligations of fiduciaries generally, both sets of laws specifically regulating trusts and foundations specifically regulate the rights and obligations of trustees and administrators respectively, setting high standards of behaviour for either type of fiduciary.

Both the local trusts law and the law regulating foundations include provisions to the effect that trustees and administrators respectively cannot negotiate their way out of liability for a breach of trust arising from their own fraud, wilful misconduct or gross negligence in the case of trustees, or arising from wilful misconduct, gross negligence or breach of duty in the case of administrators of foundations.

Maltese law does not set any particular investment approach that trustees or administrators are obliged to take in investing and administering trust and foundation assets respectively. Both sets of laws require these fiduciaries to act, in matters of investment, like a bonus paterfamilias, meaning to act as a responsible head of a family would in investing that family’s wealth. In the absence of provisions to the contrary in the trust or foundation documentation concerned, it follows that the fiduciary is obliged to invest the assets of the trust or foundation prudently.

As indicated in 6.3 Fiduciary Regulation, Maltese law does not set any particular investment approach that trustees or administrators are obliged to take in investing and administering trust and foundation assets respectively. Both sets of laws require these fiduciaries to act, in matters of investment, like a bonus paterfamilias, meaning to act as a responsible head of a family would in investing that family’s wealth.

It would therefore be prudent to ensure diversification in terms of investment on principle. It is, however, permissible for a settlor or founder to allow the trustees/administrators to administer the trust or foundation funds without ensuring diversification if, eg, the key/sole significant asset of the trust or foundation is to be the family business.

Following up on the duty imposed on the fiduciaries to act as a bonus paterfamilias, it would be prudent for the fiduciary to source the required expertise, in the form of an engagement of a qualified investment manager or adviser in the fulfilment of said duties.

In terms of the law, both trusts and private interest foundations may be used as commercial vehicles, although in the latter case certain restrictions apply. Having said that, neither is used very often, with the trust or foundation concerned typically setting up a special purpose vehicle (SPV) through which to undertake activity. The family business may be so held, with the settlor/founder and/or their children normally retaining positions at management level thereafter.

Domicile

Domicile is a private international law principle based on the concept of a permanent home – ie, the place where a person has strong ties. An individual acquires a domicile of origin at birth, which is typically the domicile of one’s father at birth, but one may also acquire a domicile of choice during one’s life. An individual may only have one domicile at a given time, and cannot be without a domicile at any point in time.

Residence

EU/EEA/Swiss nationals

EU/EEA/Swiss nationals may take up residence in Malta in the exercise of their EU Treaty rights, taking up residence there based on economic self-sufficiency, employment or study. Whilst EU/EEA/Swiss nationals may freely move to Malta at any time, they are obliged to apply for registration with the Department of Citizenship and Expatriates (DCEA) on arrival, through an application for a residence permit.

They may also apply to benefit from one of Malta’s tax programmes, such as the Residence Programme (modelled on much the same lines as the GRP). Like the GRP, beneficiaries of the Residence Programme benefit from a flat 15% rate applying to any foreign-sourced income remitted to Malta, subject to a minimum annual tax payment of EUR15,000 per annum.

Non-EU/EEA/Swiss nationals

Whilst also being entitled to relocate to Malta based on economic self-sufficiency, employment or study, non-EU/EEA/Swiss nationals (TCNs) will be required to satisfy more stringent conditions in doing so.

Where a TCN relocates to Malta on the basis of employment, their Single Permit Application submitted to the DCEA is typically subject to labour market considerations, whereby the employer is to provide justifications as to why he or she is employing a TCN rather than an EU/EEA/Swiss national. Certain exceptions to said labour market considerations do apply, with the most popular being the Key Employee Initiative Scheme, which exempts TCNs holding a managerial position and earning at least EUR30,000 per annum from labour market considerations; in addition, said employees’ applications are fast tracked from a processing time perspective.

On the other hand, a TCN wishing to relocate to Malta on the basis of economic self-sufficiency may only do so, in practice, once they benefit from one of the available tax or immigration programmes, such as the GRP or the Malta Permanent Residence Programme (MPRP).

Global Residence Programme

The GRP is a tax programme open to TCNs, further to which the beneficiary benefits from a flat 15% rate applying to any foreign-sourced income remitted to Malta, subject to a minimum annual tax payment of EUR15,000 per annum. The GRP is very popular with TCNs who wish to relocate to Malta and set up a home here, as processing time is relatively short. Once the applicant becomes a beneficiary of the programme, they can move on to apply for a residence card allowing them to reside, settle and stay in Malta; this also doubles as a Schengen visa.

The TCN may opt to include their dependants, as defined under their GRP application, as they would be entitled to apply for a residence card.

Malta Permanent Residence Programme

On the other hand, the MPRP is an immigration programme, modelled on its predecessor, the Malta Residence and Visa Programme. The MPRP is more onerous than the GRP on several fronts, as the fees payable to the authorities, the quantum of the donation to be made to a voluntary organisation and the rental/purchase qualifying amounts involved therein are significantly higher than the GRP. It is, however, based on a different premise altogether, with taxation playing no part therein. Beneficiaries under the MPRP may apply for residence in Malta on the basis of economic self-sufficiency, with the added benefit that one may apply for a residence card issued for a five-year period (as opposed to for a one-year period when applied for by a beneficiary of the GRP), subject to ongoing compliance obligations.

Tax residence

Individuals may become tax resident in Malta in one of two ways:

  • by spending 183 days or more in Malta over a 12-month period; or
  • by moving to Malta with the intention to reside in Malta indefinitely, basing themselves in Malta and only spending as much time away for business or leisure purposes as would be in line with a claim that one is residing in Malta.

Citizenship

Individuals may become a citizen of Malta by birth, registration or naturalisation.

Individuals born in Malta to a Maltese parent are automatically considered a citizen of Malta by birth.

Individuals married to and living with a citizen of Malta for at least five years may apply for Maltese citizenship, as can a widow or widower of a citizen of Malta. In addition, a direct descendant or second or subsequent generation descendant born abroad to a parent born in Malta, whose own parent was also born in Malta, may also apply for Maltese citizenship.

An individual may apply for citizenship by naturalisation if he or she has physically resided in Malta for an aggregate period of five years in the previous six-year period. In practice, however, it is understood that the authorities have not been as forthcoming as one might wish in this context, with residents having at times only managed to secure citizenship after significantly longer periods of residence.

If citizenship by naturalisation is not an option, an individual may consider following a path from residence to citizenship in terms of the Granting of Citizenship for Exceptional Services Regulations.

The Regulations form part of a wider reform of local laws to clearly cater for a regulatory framework leading from residence to citizenship. The Regulations require a basic period of residence (two routes are available: a 12-month residence period and a 36-month residence period). Applicants need to undergo an "eligibility test", focusing inter alia on due diligence reviews and checks on source of wealth and source of funds. Upon completion of the residence period and passing the eligibility test, an application for citizenship is to be lodged by the applicant.

On approval, the new citizens are required to rent or purchase a residential property in Malta for a minimum period of five years, and to donate to philanthropic entities approved by the Commissioner of Voluntary Organisations.

The Trust and Trustees (Protected Disability Trusts) Regulations establishes "protected disability trusts", which must adhere to the following conditions:

  • they must be set up by a family member, as defined, of the person having a disability;
  • they must be for the benefit of a person who has a disability, where the person is entitled to benefit in an exclusive manner, save for certain exceptions, such as the parents being beneficiaries during their lifetime, with the person with a disability becoming a beneficiary on the parents’ death; and
  • the authorities must be notified of the existence of the trust.

The ITA and DDTA both cater for certain exceptions and exemptions for income and capital gains derived by the trustees of a protected disability trust, subject to statutory conditions.

In terms of the Civil Code, the appointment of a tutor for minors is made by court order on the demand of any person. However, the appointment of a guardian over a person who has attained the age of majority need not be made before the courts.

An application to appoint a guardian is to be made to the Guardianship Board, with said application being supported by evidence as to the individual’s medical condition, being such that they are not in a position to manage their personal affairs. On application, the reason for guardianship must be indicated and, in the cases of a general guardianship, the particular case is re-assessed every six months to a year.

Around 18% of Malta’s population are aged 65 of over; this number has steadily increased over the last decade or so, much in line with the rest of Western Europe.

In the past few years, several fiscal incentives have been granted to incentivise individuals to plan for their future from a private pension perspective. The Personal Retirement Scheme Rules and the Voluntary Occupational Pension Scheme Rules contain said fiscal incentives in the form of several tax deductions and tax credits. There is admittedly more to be done locally, in the context of pensions, public and private alike, to prepare the population for the future from a financial perspective.

The Civil Code does not distinguish between children born in and out of wedlock, nor does it distinguish adopted children.

The Civil Code does provide that individuals who were not yet conceived at the time of the testator’s death are incapable of receiving by will. Accordingly, children born posthumously may not inherit.

Surrogate pregnancy arrangements are not recognised by Maltese law; accordingly, a surrogacy pregnancy contract may arguably be in breach of public policy rules locally. As a result, there is no clarity as to how the local authorities may be expected to act if faced with a case involving a child born to a surrogate, locally or overseas. From a succession perspective, it appears that such a child would not have any succession rights pertaining to a child of the deceased in terms of present law.

The Civil Unions Act was published in 2014 and introduced same-sex civil unions. Following the introduction of the Civil Unions Act, other laws, including the ITA, were amended to accord rights to same-sex partners in a civil union that are equivalent to the rights of spouses in a heterosexual marriage.

The Marriage Act and other Laws (Amendment) of 2017 – supplemented by the Conversion of Civil Unions into Marriage Regulations, 2017 (Legal Notice 382 of 2017) – amended various laws so as to eventually grant same-sex partners the right to effectively convert their civil union into a marriage. As spouses for all purposes of the law, same-sex spouses now enjoy equality of treatment to heterosexual spouses across a range of laws, including taxation.

The ITA makes limited provision for tax-deductible donations to charities and organisations of a public and/or philanthropic character.

In addition to the particular arrangements to be found therein, the ITA provides for a general exemption from the payment of income with respect to the income (and, therefore, including chargeable capital gains) derived by any institution, trust, bequest or foundation having a public character and engaged in philanthropic work, should it be so declared for the purposes of said exemption by the relevant Minister. There is in fact a Legal Notice, updated from time to time, with a list of qualifying organisations.

Typically, local charities take the form of a public benefit foundation. Such foundations are to be registered with the Registrar for Voluntary Organisations inter alia to be entitled to receive donations from the public.

Fenech & Fenech Advocates

198, Old Bakery Street
Valletta VLT 1455
Malta

+356 21 241 232

+356 25 990 641

rosanne.bonnici@fenechlaw.com www.fenechlaw.com
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Law and Practice in Malta

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Fenech & Fenech Advocates was established in 1891 and is a multidisciplinary full-service law firm with a predominantly international clientele providing tailored, value-driven legal services across a wide range of practice areas. The firm's tax and immigration law department is a leading tax law practice in Malta, advising generally on direct and indirect tax, personal tax and immigration issues. The firm's in-house corporate group, the Fenlex Group, includes a team of experienced tax accountants providing tax advisory, payroll and tax/VAT compliance services, as well as personal tax services, to the firm’s private clients. The firm offers a comprehensive, personalised service to its private clients, providing legal advice and assistance covering all relevant aspects – eg, taxation, residence (including tax residence), citizenship applications, immigration, real estate conveyancing, advice on succession law and family law, and banking – and provides support with respect to the practical aspects of relocating to Malta.