Malta launches patents exemption

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1 Malta launches patents exemption Background The Maltese government published regulations for the application of an exemption from corporate tax on royalties (and similar income) derived from qualifying patents on inventions, whether registered in Malta or elsewhere. The exemption applies regardless of where the underlying R&D was carried out thereby allowing for the tax efficient structuring of intellectual property holding and licensing activities via Malta. Royalties receivable in respect of qualifying patents EXEMPT Royalties and similar income (including any amounts paid for the grant of a licence to exercise rights) received in respect of licensing of qualifying patents, whether registered in Malta or elsewhere, are exempt from tax in Malta as from 1 January The exemption is subject to a number of conditions being satisfied, these being: a. The person in Malta, being a company established in Malta, a Malta branch of an overseas company, foundation, or trustee, must own the patent b. A patent is qualifying where it relates to an invention that is patentable under Maltese and/or EU law or is the result of fundamental research, industrial research or experimental development wherever the patent is registered and wherever the research and development relating to the patent was carried out c. The owner of the patent is to submit an application to the corporation, Malta Enterprise, for a determination that the patent is qualifying under the applicable rules d. The licensee/s is/are using the patent rights in a productive economic activity, such as but not limited to a manufacturing activity, software development and data processing e. Where the patent owner and licensee are related, the royalty or licence fees payable are to be established on an arm s length basis Royalties receivable in respect of non-qualifying patents 0% to 10% Royalties received in respect of nonqualifying (non patented) inventions are fully taxable in Malta and where received by a Malta company, are subject to the standard corporate tax rate of 35%, subject to tax refunds which the shareholders may claim upon the distribution of dividends. Where the number of licensees are at least 6, the effective tax rate is reduced to 5%, which increases to 10% where the number of licensees is less than 6. This rate falls to 0% where the Malta resident entity is not incorporated under the laws of Malta but is resident for tax purposes in Malta (the so-called nondomiciled company) and the income is not physically received in Malta. Malta tax bulletin: August

2 Costs of a capital nature incurred on patents and rights, scientific research and intellectual property rights are deductible for tax purposes in the following manner: a. Patents and patent rights over their useful life as agreed with the Commissioner of Inland Revenue on a case by case basis b. Scientific research (basic, advanced and development work) written off on a straight line basis over 6 years c. Intellectual property rights written off on a straight line basis over 3 years Uplift in base cost for tax purposes - where a company or other entity migrates its residency or domicile to Malta, the base cost of any assets owned by the said entity may be restated from historic cost to their market value as at the date of their migration. Any gains on a subsequent sale of these assets are calculated by deducting from the proceeds the revised value. The uplift is also available where a foreign company is merged with a Malta company in terms of the EU cross border merger directive. Ideal exit route - With the newly introduced extension of the participation exemption provisions to purely domestic situations, such as the sale of shares by a Malta holding company in another Malta company, an investor may dispose of the patent by selling the Maltese subsidiary owning the said patent. Gains will be exempt from tax in terms of the domestic participation exemption provisions. Repatriation of the funds will be by way of dividends which are not subject to any withholding taxes or other form of taxation in Malta. Another possible exit route is by the migration of the Maltese intellectual property company to another jurisdiction. The above is complemented by certain basic aspects of Malta s tax system: A possible exemption from capital gains ( Exit route ) No withholding taxes on outbound dividends, interest or royalties paid from Malta Possible mitigation of source country withholding taxes on royalties paid to Malta under the EC Interest and Royalties Directive or one of Malta s 60 tax treaties Malta tax bulletin: August

3 Malta tax facts The taxable profits of companies are subject to the standard 35% corporate tax. However, upon certain conditions being met, the shareholder of a Maltese company could be entitled to certain tax credits and refunds of all or part of the tax paid by the company on its profits which can reduce the overall tax burden to between 0% and 10%. Economic double taxation is relieved through the full imputation system. Malta also applies the participation exemption in respect of dividend income or capital gains received from a qualifying subsidiary and any overseas tax suffered by a Malta company would generally be eligible for relief against the Malta tax liability arising on the corresponding source of income. Through the application of this refund mechanism, the combined overall effective tax rate in Malta can be reduced: Holding companies 0% / exempt Participation exemption All dividends received exempt from tax in Malta Capital gains always exempt Also applies to simple partnerships (known as en commandite or limited partnerships with one general partner which can be a limited company) NOTE exemption ALSO applies to domestic capital gains ideal exit route Trading companies 5% International trade IP and royalty trade Treasury company Debt factoring Fund and insurance managers Finance leasing Online gaming Yacht chartering Passive income 10% Royalties Cash interest Non-dom companies special tax status negotiated at around 1.5% foreign branches royalty box cash box aircraft / engine leasing Regulated business Captive insurance 5% Hedge funds 0% / exempt Trusts - 0% net tax when certain conditions are satisfied. Foundations - profits are taxed in Malta as if the foundation is a company and hence distributions to beneficiaries are treated as dividends. Alternatively foundation may elect to be taxed as a trust resulting in a 0% net tax when certain conditions are satisfied. Flat rate foreign tax credit a credit of tax of 25% which is deemed to have been paid outside Malta calculated on the net foreign income received and allocated to the Foreign Income Account, restricted to 85% of the Maltese tax payable on the relevant foreign source income. Malta tax bulletin: August

4 Treaty network and EC directives Malta has an extensive tax treaty network with many major countries enabling tax efficient structures and relief from double taxation on cross-border transactions. Additionally, by virtue of its membership with the European Union, Malta has access to the EC Parent-Subsidiary directive, Interest & Royalties directive and Mergers directive, and the fundamentally important freedoms within the European Union. Albania Iceland Pakistan Australia India Poland Austria Ireland Portugal Barbados Isle of Man Romania Belgium Italy San Marino Bulgaria Jersey Serbia Canada Jordan Singapore China Korea (rep) Slovak Republic Croatia Kuwait Slovenia Cyprus Latvia South Africa Czech Republic Lebanon Spain Denmark Libya Sweden Egypt Lithuania Syria Estonia Luxembourg Tunisia Finland Malaysia UAE France Montenegro UK Germany Morocco USA Greece Netherlands Hungary Norway Treaties have been signed with Bahrain, Georgia, Israel, Palestine, Qatar, Russia, Switzerland, Turkey and Uruguay and are awaiting ratification. Malta tax bulletin: August

5 Contact 2011 Grant Thornton. All rights reserved. Grant Thornton Malta is a member firm within Grant Thornton International Ltd ( Grant Thornton International ). Grant Thornton International and the member firms are not a worldwide partnership. Services are delivered by the member firms independently. This publication has been prepared only as a guide and should not be construed as advice. It is recommended that ad hoc advice is sought prior to taking any action or decision in reliance upon the information contained in this document. No responsibility can be accepted by us for loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Austin Demajo Tax partner T: E: Wayne Pisani Director head corporate & financial services T: E: Malta tax bulletin: August

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