A business in Malaysia can exist in various forms, namely:
Each form differs on the level of ownership and extent of the owner’s liability. Nevertheless, it is more common for businesses to adopt a corporate form (as opposed to a sole proprietorship or conventional partnership) when setting up a business in the country.
Companies and LLPs acquire the characteristics of a separate legal entity and are treated as a separate “person” in law. Given this, the owners or shareholders of a company or LLP will not be personally liable for the company’s or partnership’s debts, save for the amount which they have paid or agreed to contribute.
Conventional partnerships and sole proprietorships, however, do not acquire the characteristics of a separate legal entity under the law. The owners of a partnership (or sole proprietorship) may therefore be personally liable without any limit for the partnership’s debts and be sued in their personal capacity in respect of the partnership’s obligations.
Financial and Compliance Requirements
Another key difference between the various forms of business entities is the financial and compliance requirements. For instance, a company is legally required to prepare audited accounts and circulate the same to its shareholders every year. Such requirement does not exist for conventional partnerships or sole proprietorships. It is also not mandatory for LLPs to prepare annual audited accounts unless stated otherwise in the partnership agreement.
Companies and LLPs, being separate legal entities, will file their own tax returns and be taxed as corporate entities. Conversely, while conventional partnerships and sole proprietorships are also required to file their own tax returns, their business profits will be taxed as the owners’ chargeable income.
In the case of a conventional partnership, the business profit will be apportioned among the partners according to their rights in the partnership.
The commonly used transparent entities in Malaysia are conventional partnerships (if there are two or more partners) and sole proprietorships (if there is only one partner). As discussed in 1.1 Corporate Structures and Tax Treatment, both entities are not regarded as separate legal entities and do not have to pay their own taxes.
The business profits will be taxed as the owners’ chargeable income and be subject to the graduated tax rates applicable to individuals. Nevertheless, conventional partnerships and sole proprietorships are required to file their own tax returns on an annual basis.
A business entity will be regarded as a tax resident in Malaysia if, at any time during an assessment year, the management and control of its affairs are exercised in Malaysia. Management and control are generally regarded as exercised in Malaysia if the board of directors (or partners) holds a meeting in Malaysia to conduct the business affairs of the company (or partnership). Management and control may also be established if the entity has a fixed place of business in Malaysia.
Companies and LLPs are generally subject to a corporate tax rate of 24%. However, companies or LLPs with paid-up ordinary share capital of MYR2.5 million or less and gross income of not more than MYR50 million will be subject to a two-tier tax rate of 17% and 24%. Transparent entities such as conventional partnerships or sole proprietorships, conversely, will be taxed at the owners’ level at the graduated rates applicable to individuals, which range from 0% to 30%.
In general, taxable profits are calculated by deducting allowable expenses incurred in the production of gross income and certain other allowances provided under the law from the said income. Taxable profits are computed based on accounting profits subject to the necessary adjustments provided under the Income Tax Act 1967 (ITA).
Such adjustments include the deduction of non-taxable income and exempt income, capital or reinvestment allowances, current year or carried forward losses, and other expenses allowed under the ITA. Disallowable expenses and any balancing charges will also be added back into the computation of the taxable profit. Profits are taxed on an accrual basis.
Other than those provided under the ITA, tax incentives are provided under the Promotion of Investments Act 1986 (PIA), which is a statute specifically enacted to promote investments via the provision of tax incentives.
Companies intending to participate in promoted activities or produce promoted products in areas of new and emerging technologies (“High Technology Companies”) are qualified to apply for incentives in the form of a Pioneer Status or Investment Tax Allowance under the PIA. Upon receiving Pioneer Status, the High Technology Companies would enjoy a 100% exemption of their statutory income for a period of five years. Under the Investment Tax Allowance, up to 60% of such company’s qualifying capital expenditure can be utilised to offset against 100% of its statutory income.
Research and Development
Companies engaged in research and development (R&D) activities or the provision of R&D services in Malaysia can apply for similar incentives, depending on the nature and recipient of the R&D activities. Through the Finance Act 2020, the special deductions provided for R&D expenditure has been restricted to persons resident in Malaysia, and double deduction is only allowed if the R&D expenditure incurred outside of Malaysia is equal to or less than 30%. Applications for such incentives should be submitted to the Malaysian Investment Development Authority and would be subject to the approval of the Minister of International Trade and Industry. During the tabling of the country’s budget for 2021, the government also proposed to reintroduce the tax incentive for the commercialisation of non-resource-based R&D findings which had expired on 31 December 2017.
Malaysian companies which operate as principal hubs and undertake research, development, and innovation activities in addition to business unit management activities (which is compulsory) for their network companies are also given tax exemption in respect of their value-added income and intellectual property income. The government has proposed to relax the conditions for renewal of this tax incentive, relating to the number of high value jobs, annual operating expenditure, and the number of key posts.
Further, special incentives are given to companies involved in green technology activities, such as Green Investment Tax Allowance (GITA) and Green Income Tax Exemption (GITE). Companies incurring capital expenditure in green technology projects and in acquiring green technology assets will qualify for such GITA and companies providing green technology services can claim GITE up to 100% of their statutory income.
The ITA allows additional incentives in the form of double deduction of revenue expenditure and industrial building allowance. For example, companies can enjoy double deduction on revenue expenditure incurred for research that is approved by the Minister of Finance. Double deductions are also available for contributions and donations to approved research institutes, and payments for the services of approved research institutes and companies, R&D companies, or contract R&D companies.
Upon fulfilment of certain criteria, local and foreign companies involved in ICT related businesses can apply for Multimedia Super Corridor (MSC) Malaysia Status which entails, amongst other incentives, 70% to 100% exemption from income tax. From 1 January 2019 onwards, the number of promoted activities for income tax exemption has been revised to 16 activities, including big data analytics, artificial intelligence, financial technology, cybersecurity, and robotics.
Generally, Malaysia provides a broad range of tax incentives for the promotion of investments in selected industry sectors. Examples of such tax incentives include:
Different incentives are applicable to each specific industry and the industries include manufacturing, agriculture, ICT, education, tourism, healthcare, financial services, biotechnology, communications, utilities, transportation, green technology, waste recycling, real estate investment trust (REIT), Islamic financing, venture capital industry, shipping, and integrated logistics services.
In the Pelan Jana Semula Ekonomi Negara (PENJANA), ie, a stimulus package introduced by the government in response to the COVID-19 pandemic, additional tax incentives have been proposed for companies relocating their operations to Malaysia and undertaking new investments:
Corporate loss relief can be claimed in the current year or carried forward to subsequent years. Carry back losses are not allowed.
In computing a company’s chargeable income (ie, income that will be charged to tax) for a current year, the cumulative losses of the company from all of its sources of income (business or otherwise) can be set-off against income from any of its sources of income.
Any unutilised business losses can be carried forward to the subsequent years and be utilised against income from any business source. From the year of assessment (YA) 2019 onwards, unutilised business losses can only be carried forward for a maximum period of seven consecutive YAs. This time limitation applies to all unutilised business losses accumulated up to YA 2018 which must be fully utilised by YA 2025 and will be disregarded in YA 2026.
For dormant companies, the accumulated tax losses cannot be carried forward if there was a substantial change in the shareholding of the company, ie, more than 50%.
Further, the ITA allows a group of Malaysian companies to claim group relief whereby companies are allowed to surrender up to 70% of their adjusted losses to one or more of its related companies. From YA 2019 onwards, this relief has been restricted to only allow losses of new companies to be surrendered for three consecutive YAs following the company’s first 12-month fiscal year operations. Prior to this, there was no time limitation.
If the claiming company has unutilised investment tax allowances or adjusted losses from a pioneer business, it will not be entitled to the group relief.
The definition of “related companies” for group relief has been further restricted. Previously, when the surrendering company and claimant company are indirectly held by another company resident and incorporated in Malaysia through a medium company, there is no requirement for the medium company to also be resident and incorporated in Malaysia. With the amendment introduced in the year 2020, such medium companies must also be resident and incorporated in Malaysia from YA 2022 onwards.
purposes are deductible under the ITA, whereas other expenses are not deductible if they are capital in nature. However, if borrowings made for business purposes are partly used for non-business purposes such as the provision of loans or investments which are not part of the company’s business, the interest relating to the portion used for the non-business purposes are restricted and would not be deductible. The portion of the interest expenditure restricted can be deducted against the company’s other sources of income, wherever relevant.
However, there is a restriction on the deduction of interest expenses incurred for payments made to all Labuan entities, regardless of whether such Labuan entity satisfies the substance requirement or not. Under the ITA, only 75% of interest payments made to Labuan entities can be deducted.
Earning Stripping Rules
With effect from 1 July 2019, a new provision was inserted into the ITA to provide for the application of Earning Stripping Rules (ESR) in Malaysia. This initiative reflects Malaysia’s commitment to adhere to the recommendations in the BEPS Action 4 Final Report. Essentially, ESR restricts the interest deductible by a company for any financial assistance granted in a controlled transaction, ie, transactions between parties controlled by the same person, or where one party has control of the other party.
The details of the ESR as contained in the Income Tax (Restriction on Deductibility of Interest) Rules 2019 (“ESR Rules”) are as follows:
The ESR does not apply to the following:
It is stated in the Restriction of Deductibility of Interest Guidelines issued by the Malaysian tax authority, name the Inland Revenue Board of Malaysia (IRB), that the ESR will only apply to cross-border financial transactions. However, this concession by the IRB does not have any force of law as the ESR Rules do not make such distinction and adopts a blanket approach to apply to all financial transactions.
Consolidated tax grouping is not permitted in Malaysia and each company is required to file separate tax returns. However, locally incorporated companies with paid-up capital of ordinary shares exceeding MYR2.5 million at the beginning of the basis period can claim for group relief to utilise separate company losses, subject to the requirements provided in Section 44A of the ITA (see 2.4 Basic Rules on Loss Relief).
Capital gains are not taxed in Malaysia save for gains derived from the disposal of real property or shares in a real property company (RPC) which will be taxed in the form of a real property gains tax (RPGT).
The amount of RPGT payable is dependent on the period between the acquisition date of the real property and the date of disposal. The rate for disposals made within three years from the acquisition date is 30% and is 20% for disposals in the fourth year, 15% for disposals in the fifth year, and 10% for disposals in the sixth year and thereafter. Disposals by foreign companies within five years are subject to a flat rate of 30% and 10% thereafter.
The scope of RPGT is fairly wide as "real property" is defined to include any interest, option, or other right in or over land. Further, once a taxpayer obtains RPC shares, the gains derived from the disposal of the RPC shares would still be chargeable to RPGT even after the company ceases to be an RPC. An RPC is a company in which the value of its real properties or RPC shares is at least 75% of its total tangible assets.
In computing, the gains from the disposal of a real property, taxpayers can deduct all expenditures incurred to enhance or preserve the value of the asset as well as incidental costs relating to the disposal. It is highlighted that transactions between related parties are deemed to not be at arm’s length and the consideration for the transaction would be based on the asset’s market value.
However, certain transactions are deemed to have no gain, ie, the disposal price is deemed to be the same as the acquisition price, and no RPGT would be payable. Such transactions include conveyance of an asset by way of security, disposal due to compulsory acquisitions, and disposals due to a financing scheme approved by the Central Bank or Securities Commission which is in line with the principles of Syariah (Islamic Law).
The Minister of Finance is also able to provide RPGT exemptions. Examples of such exemptions given by the Minister include disposal of assets to a REIT or property trust fund (PTF), restructuring scheme of a licensed insurer or takaful operator which is approved by the Central Bank, and disposal of assets to a trustee manager on behalf of a business trust.
If a transaction involves the execution of instruments, such instruments would be liable to stamp duty and the amount chargeable is dependent on the type of instruments. Certain instruments such as agreements for conveyances, services, loans, and charges would be charged to stamp duty at ad valorem rate. The stamp duty for other instruments would be at a nominal rate of MYR10.
A transaction may also attract indirect tax, ie, sales tax and service tax.
Sales tax is a single-stage tax imposed on taxable goods manufactured locally by a registered manufacturer or goods imported into Malaysia. All goods are taxable unless specifically exempted by the Minister of Finance. The standard rates for sales tax are 5% and 10%, depending on the class of goods.
Service tax is a consumption tax levied on taxable services provided in Malaysia including, amongst others, the provision of accommodation and foods and beverages, certain professional services, certain telecommunication services, domestic flight services, and management services. With effect from 1 January 2020, digital services are also included as a taxable service. However, certain intra-group services would not be taxable subject to the fulfilment of certain criteria. Service tax is levied at a rate of 6%.
There is no value-added tax in Malaysia since the abolishment of the goods and service tax (GST) regime.
Other notable taxes include custom duties (import and export duties) and excise duties.
Import duties are levied on goods imported into the country on an ad valorem basis or on a specific basis. The current ad valorem rate ranges from 2% to 60%, depending on the type of goods imported. Export duties are generally imposed on Malaysia’s main export commodities, such as petroleum and palm oil.
Excise duties are levied on a selected range of goods manufactured in or imported into Malaysia. Examples of such goods are alcoholic beverages/spirits, tobacco products, and motor vehicles. Similarly, the excise duty rates are either specific or ad valorem.
Employers and Property
Employers in Malaysia are also required to deduct and withhold tax from their employees’ salaries each month and remit such taxes to the revenue authorities. Employers are also required to make social security contributions on behalf of their employees to the Employees’ Provident Fund (12% or 13%) and Social Security Organisation (up to MYR69.06).
Each state also levies “quit” rent on real properties at varying rates each year.
Most of the closely held local businesses operate in a corporate form.
The highest corporate tax rate is 24%, whereas the tax rate of the highest tax bracket for individuals is 30%. There is no tax rule which prevents professionals from earning income in a corporate form. Subject to the respective code of conduct, professionals are allowed to form any business entity which they deem fit. For instance, accounting firms can operate as LLPs whereas law firms are still confined to conventional partnerships only.
There are no rules in place to prevent closely-held corporations from accumulating earnings for investment purposes. There are, however, mechanisms in place which encourage distribution of earnings to the investors. For instance, REITs and PTFs are exempted from paying income tax if they distribute at least 90% of their income to the unit holders.
Malaysia has a single-tier system whereby shareholders are exempted from paying taxes on dividends which they receive. Individuals (or shareholders) are also not required to pay capital gains tax for the sale of shares in a company, unless the company is an RPC, see 2.7 Capital Gains Taxation.
Similar to 3.4 Sales of Shares by Individuals in Closely Held Corporations, individuals are exempted from paying taxes on dividends which they receive. They are also not required to pay capital gains tax on the sale of shares in a company, unless the company is an RPC. This is the position notwithstanding the fact that the company is a public listed company.
However, individuals who actively engage in the buying and selling of shares in publicly traded companies for the purposes of earning profit (or income) may be regarded as being in the business of trading in publicly listed shares. In such cases, the gains received by the individual will be subject to income tax.
Ordinarily, payment of royalty and interest by a Malaysian tax resident to a non-resident is subject to withholding tax at the rate of 10% and 15% respectively. Payment of dividends, however, is not subject to withholding tax.
Apart from payment of royalty and interest, there are other types of payment which are subject to withholding tax in Malaysia, for example, payment for services or advice, rental of movable property, and contract payments. The withholding tax rate imposed by the ITA would apply unless reduced under a double taxation treaty.
The Minister of Finance can also grant certain exemptions or reliefs for withholding tax. For example, companies are exempted from their withholding tax obligations in respect of payments made for advice given or services rendered outside of Malaysia.
Malaysia has executed double taxation treaties with various countries to minimise (or prevent) double taxation of the same income in two countries in an international trade or cross-border transaction. Nevertheless, the majority of foreign direct investments in Malaysia are from Asian countries, with the most common being China, Japan and Singapore.
On 24 January 2018, Malaysia became a signatory to the OECD Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) and has committed to implement a number of the OECD’s BEPS recommendations, including BEPS Action 6, which is aimed at tackling treaty shopping or treaty abuse practices. This will see Malaysia adopting the “principal purpose test” for all its double taxation treaties upon ratification, whereby treaty benefits will be denied if it is reasonable to conclude that obtaining the treaty benefit is one of the principal purposes of a particular transaction.
On 18 February 2021, Malaysia has deposited their instrument of ratification for the MLI. The MLI will enter into force on 1 June 2021. In effect, the Malaysian government may now modify the application of its double taxation treaties with other signatories of the MLI in accordance with the MLI without making any change to the treaties.
Generally, the IRB will not challenge the use of double taxation treaties by non-treaty country residents, unless there are instances of tax avoidance.
One of the biggest transfer pricing issues in Malaysia is arguably the IRB’s selection of comparables for benchmarking analysis. The revenue authority tends to limit the selection of comparables to local companies and at times, fails to appreciate that the selected comparables have radically different business plans or are in a different market group.
There are also instances where the IRB may have inadvertently misused transfer pricing principles to adjust related parties’ transactions which are profitable or beneficial to the Malaysian company but detrimental to the overseas counterpart.
There is a disagreement between the IRB and taxpayers on the appropriate method for benchmarking analysis. The IRB generally prefers the Transactional Net Margin Method (TNMM) as opposed to other traditional methodologies, such as the Comparable Uncontrolled Pricing Method (CUP).
Arrangements and transactions between related companies (one of which could be a limited risk company) for the sale of goods or provision of services locally are subject to transfer pricing rules. Any transaction which has a direct or indirect effect of altering the incidence of tax which is payable by one party to a transaction or relieving any tax liability may be varied and adjusted by the IRB. The test is whether the related companies engaged in the arrangement or transaction at arm’s length.
The transfer pricing rules in Malaysia are largely based on the OECD Transfer Pricing Guidelines. Companies in Malaysia are generally advised to follow the OECD standards in respect of its transfer pricing documentation. The local transfer pricing guidelines issued by the IRB are also based on the arm’s length principle as set out under the OECD Transfer Pricing Guidelines.
Other than cross-border transactions, Malaysia’s transfer pricing rules also apply in a domestic context, that is resident companies within the same group would also need to adhere to all transfer pricing rules and regulations.
International tax disputes involving double taxation treaties and inconsistencies in the interpretation or application of the treaties may be resolved through the domestic appeal process (ie, an appeal to the Malaysian tax tribunal) or in accordance with the provisions of the Mutual Agreement Procedure (MAP) in the respective treaties. Both mechanisms are not mutually exclusive. An aggrieved taxpayer may resort to both the MAP process and domestic appeal concurrently. However, the domestic appeal will not be heard until the MAP process is concluded. The MAP process is also not applicable to aggrieved taxpayers who have completed their domestic appeal and obtained an order from the Malaysian tax tribunal.
The IRB first introduced MAP Guidelines in January 2015 in line with BEPS Action 14. The guidelines were subsequently updated in December 2017, signifying the IRB’s acceptance of the MAP process. Nevertheless, the majority of the transfer pricing disputes (international or domestic) in Malaysia are resolved through the domestic appeals process.
If a transfer pricing adjustment is made on one of the parties to a transaction, the law allows the other party to request for an offsetting adjustment to be made on the tax assessment of the other party.
A local branch of a non-resident company and a local subsidiary of the non-resident company are taxed similarly, where all income of both entities derived in Malaysia is subjected to corporate tax at a rate of 24%.
However, if the management and control of a branch are exercised outside of Malaysia, the local branches will be treated as non-residents in Malaysia.
Thus, the key difference between a local branch and local subsidiary of non-resident companies lies in the ineligibility of the local branch to claim for tax incentives provided under the ITA and PIA which would otherwise be available to local subsidiaries. Further, certain payments (for example, royalties, interest, and services fees) made to a local branch would be subject to withholding tax.
As there is no capital gains tax in Malaysia, capital gains earned by non-residents would similarly not be taxed, save for gains derived from the sale of real property or shares in an RPC (see 2.7 Capital Gains Taxation).
Hence, capital gains of non-residents from the disposal of shares in a company will not be taxed unless the shares in question are shares of an RPC.
There are no change of control provisions in Malaysia which will trigger tax or duty charges. However, if there is a major change in the shareholding of a dormant company, any unutilised losses of the company cannot be carried forward to subsequent years. Certain tax incentives relating to transactions between related parties would also be revoked if there is a change in control which renders the parties to cease being related parties.
There are no special formulas used to determine the income of foreign-owned local affiliates in Malaysia. Local affiliates of foreign companies will be taxed on all income accrued or derived in Malaysia and the chargeable income (income which is taxable) will be computed in the same manner as local companies.
Payments made by a local affiliate to its foreign affiliate for management and administrative expenses incurred by the foreign affiliate will be allowed as a deduction if the payments are made at arm’s length, and services rendered by the non-local affiliate has conferred economic benefit or value to the local affiliate’s business. Further, such services cannot be duplicative or involve shareholder activities.
All related-party borrowings are required to comply with transfer pricing laws, ie, the interest rates must be charged at arm’s length. Further, the deductibility of interest expenses by the borrowing company is subject to the ESR, see 2.5 Imposed Limits on Deduction of Interest.
Interest paid by a local subsidiary to a non-resident would also be subject to withholding tax at 15% (or any other rate stipulated in the applicable double taxation treaty).
The income of local corporations derived from outside Malaysia but received in Malaysia is exempted from income tax, except for companies engaged in the business of banking, insurance, sea transport or air transport.
Generally, only expenses incurred wholly and exclusively in the production of gross income is deductible. As foreign income is exempted from tax and would be disregarded for the purpose of the ITA, all expenses attributable to such foreign income correspondingly cannot be deducted.
Dividends received by resident companies from foreign companies are still generally regarded as foreign-sourced income. Thus, these dividends would also be exempted from tax unless the resident company is engaged in the business of banking, insurance, sea transport, or air transport.
If a foreign related company is licensed to use intangibles developed by a local Malaysian company, such transactions would be subject to transfer pricing laws. If the ownership of the intangible property does not vest with the developer of the property, the developer shall receive an arm’s length consideration for the development of the property.
Malaysia does not have controlled foreign corporation (CFC) rules.
There are no rules relating to substance requirements of non-local affiliates.
As there is no capital gains tax in Malaysia, gains from the sale of shares in non-local affiliates will not be taxed. However, gains received from the disposal of shares in a non-local affiliate will be subject to RPGT if the non-local affiliate is an RPC. See 2.7 Capital Gains Taxation for the definition of an RPC.
Section 140 of the ITA is a general anti-avoidance provision which provides wide powers to the IRB to disregard or vary a transaction and to recompute the tax liability of a taxpayer. The revenue authority may do so where there is reason to believe that any transaction alters the incidence of tax, relieves a person from tax liability, evades or avoids any duty or tax liability, or hinders or prevents the operation of the ITA. There are procedural safeguards that must be complied with before the anti-avoidance provision can be invoked, namely that the revenue authority must identify the purported effect of the taxpayer’s transaction and provide grounds for recomputing the tax payable.
In determining whether a transaction constitutes tax avoidance, regard must be had to the dominant purpose of a transaction. While taxpayers have the freedom to structure their transactions to their best tax advantage, there must be genuine commercial purpose to the transaction apart from tax savings in order for the transaction to not be caught within the meaning of tax avoidance.
The ITA contains a specific transfer pricing provision (Section 140A) which empowers the IRB to substitute an arm’s length price of a transaction between related parties. Further, the IRB can disregard any transaction structure if its economic substance differs from its form or if the arrangement is not one that would be adopted by independent persons behaving in a commercially rational manner.
The IRB does not have fixed audit cycle for each taxpayer and taxpayers can be audited at any time. Businesses are selected for audit through a computerised system based on various risk assessment criteria and information, including the taxpayer’s own tax returns and information from third parties. The revenue authority may also select companies based on their participation in targeted industries or their locality.
In general, the IRB will audit businesses on their returns for the past three to five years. However, the IRB can raise tax assessments going as far back as five years and if evidence shows that there is any element of fraud, negligence, or wilful default, there is no limitation period.
There are two types of audits carried out: desk audits and field audits.
Desk audits are typically used for simpler and straightforward issues which can be resolved via correspondence, ie, letters and email. The IRB will review documents and information submitted by taxpayers and may require taxpayers to attend interviews at the IRB’s office if necessary.
Field audits involve a review of the taxpayer’s business records at the taxpayer’s premises. Taxpayers will usually be given prior notice of a field audit.
The IRB has resolved to complete all tax audits within 90 days.
Malaysia has implemented a number of reforms arising from OECD’s BEPS recommendations. Malaysia has introduced transfer pricing legislation in 2012 (BEPS Actions 8-10), and subsequently country-by-country reporting and automatic exchange of information between tax authorities (BEPS Action 13) in 2016. Recently, Malaysia has also implemented ESR (BEPS Action 4), which is explained in further detail in 2.5 Imposed Limits on Deduction of Interest.
In addition, a comprehensive review of both IP and non-IP tax incentives (including principal hub, Multimedia Super Corridor (MSC) Malaysia, and pioneer status incentives) was carried out to eliminate harmful tax practices identified by the Forum on Harmful Tax Practices (FHTP) (BEPS Action 5). For IP incentives, Malaysia has amended its existing incentives so that tax exemption is only given where R&D expenditures is incurred and carried out in Malaysia. For non-IP incentives, legislation was passed to enable the incentive regimes to comply with the substantial activities requirement and to remove ring-fencing.
Malaysia also became a signatory to the MLI (BEPS Action 15) and has recently ratified the convention, which will come into effect on 1 June 2021 (see 4.7 International Transfer Pricing Disputes). Significantly, Malaysia has introduced a tax on digital services in a bid to address the taxation of the digital economy (BEPS Action 1) (see 9.13 Digital Taxation).
Although Malaysia is not a member of the OECD, the Malaysian government remains committed in implementing the BEPS Action Plan and adhering to the OECD Inclusive Framework on BEPS’ (IF) minimum standards, as evident from the reforms undertaken over the past years following the country’s entry as an Associate Member to the IF in 2017. Malaysia is focused on countering harmful tax practices in preferential regimes; preventing the granting of treaty benefits in inappropriate circumstances; complying with OECD standards for transfer pricing documentation and country-by-country reporting; and increasing the efficacy of dispute resolution mechanisms under double taxation agreements.
From an enforcement perspective, the IRB has increasingly been conducting transfer pricing audits on multinational enterprises and has introduced new transfer pricing penal provisions. The failure to furnish contemporaneous transfer pricing document is now an offence and the IRB has the power to impose a penalty between RM20,000 and RM100,000. Additionally, a surcharge of 5% can now be imposed on any transfer pricing adjustment made.
While some of the BEPS reforms introduced in Malaysia are at their infancy and thus far, there has yet to be any indication of BEPS centred audits apart from transfer pricing ones, the IRB will typically scrutinise compliance with new legalisation such as the ESR when carrying out its routine audits.
In Malaysia, international tax does not generally have a high public profile beyond multinational corporations and tax practitioners. However, there is certainly growing awareness amongst taxpayers in light of recent BEPS measures introduced by the government as well as increased cross-border economic activities by businesses.
The Malaysian government has made clear its intention to revamp and create a more competitive, transparent, and attractive tax incentive framework and has been actively conducting a comprehensive study of the existing structure. Malaysia’s economic objectives for 2021 include making Malaysia a destination for high-value service activities. New measures introduced include the extension of principal hub incentives to 31 December 2022 and relaxation of the conditions for the five-year extension of the incentive (see 2.2 Special Incentives for Technology Investments).
Additionally, the government has also introduced a new Global Trading Centre tax incentive which grants eligible taxpayers a concessionary tax rate of 10% for a period of five years with an additional five years on renewal. Eligible manufacturing companies that have relocated their operations to Malaysia are also afforded special tax rates (see 2.3 Other Special Incentives).
Nevertheless, as discussed above at 9.2 Government Attitudes, Malaysia has undertaken to implement the OECD BEPS standards and to review its legislation and tax regime for compliance. Thus, Malaysia will likely ensure that any incentives it offers or introduces will meet the OECD requirements. Further, as more and more jurisdictions in the region also implement BEPS-related measures, there will be less concerns of needing to reduce or limit the introduction of BEPS reforms to maintain Malaysia’s competitiveness.
Malaysia’s preferential regimes that offered incentives in respect of mobile geographical services activities related to IP and non-IP services are a key attribute of the country’s competitive tax policy. However, as discussed in 9.1 Recommended Changes, these regimes were identified by the FHTP as having features that would facilitate BEPS and Malaysia has subsequently addressed these vulnerabilities through various regulations, orders, and guidelines.
Unlike other jurisdictions, Malaysia has not enacted any rule specifically addressing the tax treatment of hybrid instruments and whether such hybrid instruments are debts or equities for income tax purposes. Further, notably, although Malaysia is a signatory to the MLI, Malaysia has reserved its right to opt-out of most of the treaty-based measures aimed at neutralising the effects of hybrid mismatch arrangements, including Article 5 which deals with double non-taxation that may arise from cross-border hybrid instruments.
This may indicate that Malaysia is still contemplating the appropriate methods of addressing hybrid mismatches which would require considerations of domestic legislation (such as the use of general anti-avoidance provisions in the ITA) as well as national treaty policies. It remains to be seen whether Malaysia would adopt the approach taken in other jurisdictions of denying or restricting deductions for cross border payments made to related entities on hybrid instruments if such payments are not correspondingly taxed in the recipient country.
Malaysia has territorial tax regime where income tax is levied on any income accruing in or derived from Malaysia. As discussed in 2.5 Imposed Limits on Deduction of Interest, Malaysia recently introduced ESR to restrict the deductibility of interest expenses paid between related parties in cross-border transactions. Companies are only allowed to deduct a maximum interest expenditure of 20% of the taxpayer’s tax EBITDA. However, the ESR only applies where the total interest expense of a taxpayer is more than MYR500,000 a year.
Malaysia currently does not have any CFC rules. Given that Malaysia has a territorial tax system, CFC rules that require taxation of offshore subsidiaries regardless whether any substantial activity or economic nexus has been established in Malaysia or not would appear to be fundamentally at odds with the tax regime. Hence, if any CFC rules were to be implemented, these rules may likely be designed narrowly to only apply to income that should have been subject to tax in Malaysia and would also necessarily be limited to targeting profit shifting.
Further, given that there are considerations such as double taxation, overlap with existing transfer pricing legislation, maintaining competitiveness with jurisdictions without CFC rules, and administrative and compliance burdens that will need to be taken into account, this may give Malaysia pause in introducing CFC rules any time soon.
Consequent to the signing of the MLI by Malaysia, an anti-abuse provision will be incorporated into all of Malaysia’s double taxation treaties. Malaysia has chosen to adopt the principal purpose test as opposed to a limitation on benefits provision, see 4.2 Primary Tax Treaty Countries.
In respect of anti-avoidance rules, Malaysia’s tax legislation contains general anti-avoidance provisions (see 7.1 Overarching Anti-avoidance Provisions). Given that many jurisdictions are similarly adopting anti-abuse provisions in respect of their double taxation treaties, it is difficult to envisage any significant impact that the provisions or rules may have on inbound and outbound investors.
Malaysia’s existing transfer pricing regime is largely based on governing OECD standards and the general arm’s length principle. Thus, it is unlikely that the proposed transfer pricing changes by the OECD, including the revisions to its Guidelines, will radically alter the structure of the transfer pricing framework in Malaysia. For example, the Malaysian Transfer Pricing Guidelines 2012 have been amended to adopt the recommendations on BEPS Actions 8-10 relating to intangibles without causing any major upheaval to the current system or controversy.
Malaysia has introduced legislation on country-by-country reporting and automatic exchange of information indicating Malaysia’s approval of enhancing transparency in combatting BEPS. In line with OECD recommendations on BEPS Action 13, country-by-country reporting only applies to multinational corporation groups which have their ultimate holding company in Malaysia and have a consolidated minimum group revenue of MYR3 billion. Local subsidiaries are generally not required to file a country-by-country report (CbCR) as Malaysia will obtain the CbCR via automatic exchange of information with the jurisdiction of the parent companies.
However, in a situation where a CbCR has been filed in another jurisdiction and that jurisdiction does not have a tax treaty or a multilateral competent authority agreement with Malaysia, local subsidiaries are not compelled to file the CbCR locally. This means that Malaysia will not have access to this information, giving rise to a potential for any BEPS to remain undetected.
Malaysia has recently introduced a tax on digital services by widening the scope of its existing service tax. With effect from 1 January 2020, foreign service providers of digital services must now register with the Royal Malaysian Customs Department and charge 6% service tax on all digital services provided to consumers in Malaysia.
"Digital service" has been defined broadly under the Service Tax Act 2018 and according to Customs, includes services such as providing software, applications, and music; streaming services; digital advertising services; and offering online platforms to sell products and services. Thus, companies such as Netflix, Spotify and Google are expected to register and remit service tax to Customs. Foreign service providers must be registered if the value of the digital services provided by it to consumers in Malaysia exceeds RM500,000 over a period of 12 months.
As discussed above, Malaysia’s current approach to taxing the digital economy is to expand the scope and application of its service tax to digital services rendered by foreign service providers. There has yet to be any indication so far of Malaysia’s position in respect of the proposals by the OECD on digital taxation, namely the allocation of taxing rights in favour of market and user jurisdictions and implementing a global minimum tax. Given Malaysia’s commitment in principal to implementing the OECD BEPS actions, Malaysia could in the future adopt the consensus-based solution by the IF which is expected to be finalised by mid-2021.
Malaysia’s tax regime generally imposes a 10% withholding tax on all royalties paid to non-residents and makes no distinction where the IP owner is resident in a tax haven. However, IP owners who are resident in jurisdictions which have a double taxation treaty with Malaysia could avail themselves to any preferential withholding tax rate in the treaty.
In late 2020, three of the main objectives in the Malaysian government’s 2021 budget were supporting business continuity, combating the COVID-19 outbreak and safeguarding the welfare of the people.
Whilst some quarters may dismiss these objectives as lofty platitudes and mere rhetoric, Budget 2021 must be recognised for its well-intended efforts in paving the path back to economic recovery for the country. Amongst others, a total of MYR4.09 billion has been allocated to combat the COVID-19 pandemic (vaccination programmes, medical equipment, and one-off grants to medical front liners), whilst tax breaks and reliefs were also made available to individuals (eg, for vaccinations, medical expenses and reskilling courses). Notably, the income tax rate for individuals resident in Malaysia has also been reduced by 1% (for the chargeable income band between MYR50,001 and MYR70,000).
However, it remains to be seen whether the key tax measures which would affect corporate taxpayers under the Finance Act 2020 gazetted on 31 December 2020, is truly a force for “business continuity” as pledged, or otherwise. Amongst the key concerns are restrictions to claims for capital allowance, increased powers for the tax authorities in transfer pricing matters, and apparent attempts to limit the courts’ ability to grant a stay of payment in tax matters.
On indirect tax matters, taxing the digital economy continues to be at the forefront of the government’s efforts in increasing its revenue stream. With the current trend of increasing tax collection, there is potential for the government to widen the scope of the current digital tax to also apply to digital currencies and digital tokens.
Capital Allowance – Restrictive Definition for "Plant" Introduced into the Income Tax Act 1967 (ITA)
Capital allowance affords relief to taxpayers for the wear and tear of their fixed assets, by allowing for the depreciation suffered on such assets to be used to reduce the tax payable by the taxpayer.
Under the ITA, taxpayers who incur qualifying capital expenditure on ‘plant’ or machinery used for the purposes of their business are entitled to claim capital allowances.
Prior to 1 January 2021, the ITA did not provide for the definition of "plant" and guidance had to be derived from case law. Amongst others, the courts have decided that "plant" includes buildings and other intangible assets. The leading decision on this issue is the 1887 decision by the English Court of Appeal in Yarmouth v France that "plant": “in its ordinary sense, it includes whatever apparatus is used by a business man for carrying on his business – not his stock in trade which he buys or makes for sale, but all goods and chattels, fixed or moveable, live or dead, which he keeps for permanent employment in his business”.
Such interpretation has been accepted and applied by the Malaysian courts in, amongst others, Director General of Inland Revenue (DGIR) v Tropiland Sdn Bhd and DGIR v CIMB Bank Berhad. The courts allowed the taxpayers’ claim for capital allowance on qualifying expenditure in respect of a multi-storey car park in Tropiland (ie, a building), and core deposits and customers’ credit card databases in CIMB Bank (ie, an intangible asset).
In Tropiland, the Court of Appeal held that the phrase "plant and machinery" should be interpreted widely, giving due consideration to the taxpayer’s particular industry and taking into account the specific circumstances of the taxpayer’s business. In CIMB Bank, the Court accepted that the Databases were important apparatuses for the taxpayer’s banking business by applying the principles established in Yarmouth v France, despite the Databases being virtual and intangible.
The recent insertion of paragraph 70A into Schedule 3 ITA by Section 28(a) of the Finance Act 2020 appears intended to sweep away 134 years of legal precedents on the definition of "plant", by providing that: “In this Schedule, 'plant' means an apparatus used by a person for carrying on his business but does not include a building, an intangible asset, or any asset used and that functions as a place within which a business is carried on.”
The insertion of paragraph 70A, Schedule 3 ITA would certainly be unsettling for businesses, by discouraging investment in capital assets that could otherwise be used to increase local production capacity. One cannot help but wonder whether the full implications of such a restriction on the decision-making process of businesses to invest have been fully considered.
Transfer Pricing – Penalties, Surcharges, Powers to Disregard, and Recent Decisions by the Special Commissioners of Income Tax
Three key changes to transfer pricing were introduced in Malaysia effective 1 January 2021. Firstly, Section 113B ITA provides an offence for taxpayers who fail to furnish contemporaneous transfer pricing documentation, punishable with a fine of between MYR20,000 to MYR100,000 on conviction. Where no prosecution is instituted, a penalty of an amount in the same range can be imposed.
Secondly, Section 140A(3C) ITA allows the DGIR to impose a surcharge of up to 5% on all transfer pricing adjustments, regardless of whether there is tax payable in the adjustments. Thirdly, Section 140A(3A) and Section 140A(3B) ITA has been introduced to give the DGIR the power to disregard and re-characterise the structure in a controlled transaction. This power can be invoked if the economic substance of the transaction differs from its form, or if the arrangement is not commercially rational.
Multinational companies for which transfer pricing issues are of great importance to would certainly factor the recent changes into account in their investment decisions, changes which, it must be said, does not appear to augur well for the objective of “supporting business continuity”. Questions also arise as to the wisdom of essentially allowing the DGIR the power to decide on whether a particular transaction is commercially sound. After all, the courts have held that “the cases are replete in that regard in that it is never the province of either the DGIR or even the courts to tell people how to conduct their business” (Port Dickson Power Sdn Bhd v DGIR).
On the judicial front, the Special Commissioners of Income Tax (SCIT) recently issued its decisions in two landmark appeals in P&G Sdn Bhd v DGIR and SEO Sdn Bhd v DGIR. In both cases, the DGIR raised additional tax assessments after conducting transfer pricing adjustments pursuant to Sections 140 and 140A ITA respectively. The adjustments were made using the transactional net margin method, where the taxpayers’ profits were adjusted to the median of the profits yielded by benchmarked companies despite their profits falling within the inter-quartile range. The SCIT quashed the assessments and ruled that such adjustments were invalid as the OECD Transfer Pricing Guidelines prescribes that no adjustment should be made when a taxpayer’s profits fall within the arm’s length range, ie, the inter-quartile range.
Section 103B ITA – Power of the Courts to Grant a Stay?
Over the years, our courts have in judicial review applications granted stay of payment of taxes to taxpayers seeking to quash tax assessments.
Widespread concerns arose when Section 103B ITA was introduced in 2021, which reads: “Tax payable notwithstanding institution of proceedings under any other written law. The institution of any proceedings under any other written law against the Government or the Director General shall not relieve any person from liability for the payment of any tax, debt or other sum for which he is or may be liable to pay under this Part.”
Read together with the recent changes to claims for capital allowance and transfer pricing matters as highlighted above, one must surely be tempted to question whether “Ensuring Revenue Collection” is in fact the fourth unwritten objective of Budget 2021.
While the provision has not received judicial interpretation, suffice to state at this juncture that Section 103B ITA does not take away the power of the courts to grant a stay in appropriate circumstances.
Noteworthy Tax Decision at the Federal Court: Advance Rulings by the IRB not Subject to Judicial Review
The recent decision by the Federal Court in IBM Malaysia Sdn Bhd v DGIR would be of interest to corporate taxpayers who are considering applying for an Advance Ruling from the DGIR.
Under Section 138B ITA, taxpayers can apply for an Advance Ruling from the DGIR to seek the DGIR’s position on the application of any provisions of the ITA to a particular arrangement for which the ruling is sought. An Advance Ruling is regarded as final and binding once issued, subject to the relevant conditions being met.
In IBM, the taxpayer was dissatisfied with the Advance Ruling issued by the DGIR and succeeded, initially, in quashing it by way of judicial review at the High Court. However, the Court of Appeal reversed the High Court’s decision on the basis that the judicial review application is premature. The Court of Appeal took the view that judicial review is not available, as the taxpayer would only be ‘adversely affected’ after having filed its tax returns and assessed to tax by the DGIR, and held that “the Advance Ruling is a decision that does not have any tax implication as there is no assessment made”. The taxpayer’s appeal to the Federal Court was dismissed.
Corporate taxpayers evaluating the option of applying for an Advance Ruling must surely be forgiven for wondering: “What is the point?” If an Advance Ruling is unfavourable, the taxpayer must still comply with it, before filing an appeal to the SCIT, or risk being slapped with penalties. Considering the Court of Appeal’s apparent views on the limited usefulness of an Advance Ruling, seeking independent professional advice from tax consultants and/or tax counsel may perhaps be a better alternative.
Taxing the Digital Economy
In respect of indirect tax developments, there remains lingering uncertainty as to the scope of digital services tax in the Malaysian government’s efforts to tax the digital economy. The government had begun to impose service tax on the consumption of digital services with effect from 1.1.2020. With this, relevant provisions have been incorporated to impose tax on digital services provided by local service providers as well as foreign service providers, such as those supplied by Facebook and Google.
The Service Tax Act 2018 (STA 2018) defines digital service broadly as “any service that is delivered or subscribed over the internet and other electronic network and which cannot be obtained without the use of information technology and where the delivery of the service is essentially automated”. When tabling the STA 2018 in Parliament, the Deputy Finance Minister commented that under this definition, digital services would include online music and movie subscriptions, e-book subscriptions, cloud storage subscriptions, online purchases of computer software, and the use of an online marketplace platform.
Examples of digital services given in the Customs’ Guide on Digital Services by Foreign Service Providers (as of 1 February 2021) are software, applications, video games, music, e-books, films, search engines, social networks, online training, database and hosting, cloud, subscription to online newspapers and journals (online newspapers and journals have been given exemption by Minister of Finance). However, Customs’ Guide is silent on whether digital currencies and digital tokens are treated as digital services.
Although digital currencies are not legal tender in Malaysia, digital currencies and digital tokens have been classified as securities under the Capital Markets and Services (Prescription of Securities) (Digital Currency and Digital Token) Order 2019 with effect from 15 January 2019. The mere fact that digital currencies are not legal tender does not prevent these digital currencies and digital tokens from being accepted as consideration in a transaction.
At first sight, the use of these digital currencies and digital tokens may seem to fall within the definition of digital service, however, arguably no service has been delivered given that digital currencies and digital tokens have been classified as securities. That said, it remains to be seen whether Customs will follow the lead of the Securities Commission Malaysia and afford digital currencies and digital tokens the same tax treatment as securities or separately classify them as digital services for service tax purposes.
Another term defined under the STA 2018 which has the potential of creating practical issues for tax purposes is “consumer”. Pursuant to the Act, a consumer is any person who fulfils any two of the following:
It would appear that the best method of determining whether a consumer resides in Malaysia is the billing address supplied by the consumer when making the online payment. If the consumer is not a Malaysian resident, he or she would most likely be making payments using a foreign debit or credit card with an overseas billing address. Conversely, a Malaysian resident would most likely make online payments using a local credit or debit card with a local billing address.