• Malta Transfer Pricing Rules published

Malta Transfer Pricing Rules published

18 November 2022

On the 18th November 2022, the long awaited Transfer Pricing Rules were published as Legal Notice 284 of 2022.

Key Points

The key take aways from the rules (TPR) are as follows:

  • Transfer pricing is being introduced in Malta with effect from basis years commencing on or after 1st January 2024 in relation to any arrangement entered into on or after that date, and for those arrangements entered into before that date, to arrangements that are materially altered on or after that date.
  • Possibility of entering into unilateral transfer pricing rules and advance pricing arrangements.
  • The TPRs apply to cross border arrangements between associated enterprises. For the purpose of the TPRs associated enterprises are defined as bodies of persons where one of the bodies of persons controls the other body of persons or the same person or persons controls two or more bodies of persons, whether as a result of the fact that it holds, directly or indirectly, a participation of more than 75% in  the  voting  rights,  or  the ordinary capital, of the other body of persons or by virtue of any powers conferred by the articles of association or other document regulating the other (or two as applicable) body / bodies of persons. Provided that where such bodies of persons are constituent entities of a MNE group as defined in item 3 of Section I of Annex III of the Cooperation with Other Jurisdictions on Tax Matters Regulations the percentage interest in the voting rights or the ordinary capital referred to therein shall be fifty per cent (50%).
  • The Rules shall not apply to micro, small or medium-sized enterprises (as per definition in Annex I of Commission regulation (EU) 651/2014, being enterprises which employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not exceeding EUR 43 million).
  • The TPRs apply exclusively to cross border arrangements, defined as an arrangement between associated enterprises where any one of the following conditions is satisfied and the arrangement is relevant in ascertaining the total income of that company:
    • a) at least one party to the arrangement is not resident in Malta and at least one party to the arrangement is a company resident in Malta;
    • b) at least one party to the arrangement maintains a permanent establishment situated outside Malta to which the arrangement is effectively connected and at least one party to the arrangement is a company resident in Malta;
    • c) at least one party to the arrangement is not resident in Malta and at least one other party, not being resident in Malta, is a company which maintains a permanent establishment situated in Malta to which the arrangement is effectively connected, or otherwise derives income or gains arising in Malta.
  • As expected the rules contain the main deeming provision that where any amount incurred, accrued, due or derived in the year preceding the year of assessment under any cross-border arrangement to which these rules apply differs from the arm’s length amount, it shall be deemed that the arm’s length amount was incurred or due instead of the actual amount incurred accrued, due or derived. The "arm’s length amount" is defined as the amount that independent parties would have agreed to in relation to the arrangement had those independent parties entered into that arrangement in comparable circumstances, and which shall be determined on the basis of such methodologies as shall be designated by the Commissioner in guidelines (to be published).
  • Any TPR adjustment is effective only for income tax purposes (and not VAT).
  • The TPRs shall not apply (unless the parties to the transaction specifically request the Commissioner for Revenue not to apply the exclusion) to:
    • a) Securitisation transactions; and
    • b) Where the aggregate arm’s length value of all items of income and expenditure of a revenue nature forming part of cross-border arrangements in the year preceding the year of assessment, does not exceed €6,000,000; and (ii) the aggregate arm’s length value of all items of income and expenditure of a capital nature forming part of cross-border arrangements in the year preceding the year of assessment,  does not exceed €20,000,000.
  • TPRs apply in an equivalent manner to arrangements between a) a permanent establishments of a foreign company in Malta and the foreign company and b) a permanent establishment of a Malta company outside of Malta and the Malta company.

 

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