On the 27 November 2018, it was announced that an agreement was reached between Malta and Ireland which ends the Single Malt structures. These were being used through the transfer of the management and control of Irish incorporated entities to Malta. Through a Competent Authority Agreement, Malta and Ireland agreed that the purpose of the Double Taxation Convention (DTC) is to eliminate double taxation and not create the opportunity for double non-taxation. Thus, deeming a company incorporated in Ireland but managed and controlled in Malta to be tax resident only in Malta, does not serve the purposes of the Double Taxation Convention as income was not being brought to charge in neither Malta nor Ireland when the income was not remitted to Malta. Accordingly, such an Irish-incorporated company will be tax resident in Ireland and the relevant payments to it will come within the charge to Irish corporation tax.
The agreement will come into force with effect from taxable periods beginning on or after the expiration of a period of six months from the later of the dates on which the Multilateral Instrument (MLI) enters into force in Ireland and Malta. Malta endorsed its agreement with reservations to the MLI through Subsidiary Legislation 123.183 however, to date, the effective date marking the date when such legislation will come into force is yet to be announced.
The Agreement provides the following:
From the coming into effect of the MLI with respect to the DTC between Ireland and Malta (the “Contracting States” in relation to that DTC), where –
- for the purpose of avoiding double taxation, under paragraph 3 of Article 4 of the Ireland-Malta DTC a company would be deemed to be only resident in one of the Contracting States, but
- in the circumstances concerned –
- there is no double taxation to be avoided, and
- it is reasonable to conclude that an opportunity for double non-taxation would otherwise arise,
then any such deeming of the company to be resident only in one of the Contracting States shall not be for the purposes of the Ireland-Malta DTC – as it would serve no such purposes. It would be superfluous to, and redundant for, those purposes.
The Competent Authorities shall notify each other in a timely manner where they become aware of circumstances to which this Competent Authority Agreement refers.