Private Client 2019 The International Comparative Legal Guide to: WH Partners
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ICLG The International Comparative Legal Guide to: Private Client 2019 8th Edition A practical cross-border insight into private client work Published by Global Legal Group with contributions from: Aird & Berlis LLP Matheson Arcagna B.V. Miller Thomson LLP AZB & Partners Miyetti Law BDB Pitmans LLP Mori Hamada & Matsumoto Bryan Cave Leighton Paisner LLP MWE China Law Offices Cadwalader, Wickersham & Taft LLP NijsDraye | Attorneys at Law Cases & Lacambra Ospelt & Partner Attorneys at Law Ltd. Collas Crill Ozog Tomczykowski DORDA Rechtsanwälte GmbH P+P Pöllath + Partners Elias Neocleous & Co LLC Rovsing & Gammeljord Griffiths & Partners / Coriats Trust Company Limited Society of Trust and Estate Practitioners (STEP) Hassans International Law Firm SRS Advogados Higgs & Johnson Tirard, Naudin Société d’avocats Holland & Knight LLP Utumi Advogados Jonathan Mok Legal in Association with Charles Russell Speechlys LLP Walder Wyss Ltd Katten Muchin Rosenman LLP WH Partners L&P – Ludovici Piccone & Partners Withersworldwide Lebenberg Advokatbyrå AB WongPartnership LLP Macfarlanes LLP Zepos & Yannopoulos Maples and Calder
The International Comparative Legal Guide to: Private Client 2019
General Chapters:
1 Tech Entrepreneurs: Is the UK Still an Attractive Place to Establish Your Business? –
Isobel Morton, Macfarlanes LLP 1
2 Is Privacy a Chimera? – Helen Ratcliffe & Carolyn O’Sullivan, BDB Pitmans LLP 6
3 Pre-Immigration Planning Considerations for the HNW Client – Think Before You Leap –
Contributing Editors Joshua S. Rubenstein, Katten Muchin Rosenman LLP 12
Jon Conder & Robin Vos,
Macfarlanes LLP 4 Essential Points to Consider when Drafting an International Pre-Marital Agreement –
Sales Director Elizabeth Hicks & Alexie Bonavia, Bryan Cave Leighton Paisner LLP 18
Florjan Osmani 5 Navigating Complex US Immigration Laws: US Visas & Taxation –
Account Director Mark E. Haranzo, Holland & Knight LLP & Reaz H. Jafri, Withersworldwide 23
Oliver Smith
6 Canada’s New Tax on Split Income Regime is Here to Stay – Robert Santia &
Sales Support Manager
Rachel L. Blumenfeld, Aird & Berlis LLP 28
Toni Hayward
Senior Editors 7 The Limits to Transparency – Emily Deane TEP, Society of Trust and Estate Practitioners (STEP) 32
Caroline Collingwood
Rachel Williams Country Question and Answer Chapters:
CEO
Dror Levy 8 Andorra Cases & Lacambra: Jose María Alfín & Marc Urgell 35
Group Consulting Editor
Alan Falach 9 Austria DORDA Rechtsanwälte GmbH: Paul Doralt & Katharina Binder 42
Publisher 10 Bahamas Higgs & Johnson: Heather L. Thompson & Kamala M. Richardson 49
Rory Smith
Published by 11 Belgium NijsDraye | Attorneys at Law: Alain Nijs & Joris Draye 55
Global Legal Group Ltd.
59 Tanner Street 12 Brazil Utumi Advogados: Ana Claudia Akie Utumi 64
London SE1 3PL, UK
Tel: +44 20 7367 0720 13 British Virgin Islands Maples and Calder: Ray Davern & Alex Way 71
Fax: +44 20 7407 5255
Email: info@glgroup.co.uk 14 Canada Miller Thomson LLP: Nathalie Marchand & Rahul Sharma 76
URL: www.glgroup.co.uk
GLG Cover Design 15 Cayman Islands Maples and Calder: Morven McMillan 85
F&F Studio Design
16 China MWE China Law Offices: Jacqueline Z. Cai & Robbie H. R. Chen 90
GLG Cover Image Source
iStockphoto
17 Cyprus Elias Neocleous & Co LLC: Elias Neocleous & Elina Kollatou 96
Printed by
Stephens & George 18 Denmark Rovsing & Gammeljord: Mette Sheraz Rovsing & Troels Rovsing Koch 103
Print Group
January 2019 19 France Tirard, Naudin Société d’avocats: Maryse Naudin 109
Copyright © 2019
20 Germany P+P Pöllath + Partners: Dr. Andreas Richter & Dr. Katharina Hemmen 118
Global Legal Group Ltd.
All rights reserved
No photocopying
21 Gibraltar Hassans International Law Firm: Peter Montegriffo QC & Louise Lugaro 126
ISBN 978-1-912509-52-2 22 Greece Zepos & Yannopoulos: Costas Kallideris & Anna Paraskeva 134
ISSN 2048-6863
23 Guernsey Collas Crill: Joanne Seal & Angela Calnan 140
Strategic Partners
24 Hong Kong Jonathan Mok Legal in Association with Charles Russell Speechlys LLP:
Jonathan Mok & Jessica Leung 146
25 India AZB & Partners: Anand Shah & Khushboo Damakia 153
26 Ireland Matheson: John Gill & Lydia McCormack 161
27 Italy L&P – Ludovici Piccone & Partners: Paolo Ludovici & Andrea Gallizioli 169
PEFC Certified
This product is
28 Japan Mori Hamada & Matsumoto: Atsushi Oishi & Makoto Sakai 177
from sustainably
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29 Jersey
controlled sources
Collas Crill: Kellyann Ozouf & Dionne Gilbert 184
PEFC/16-33-254 www.pefc.org
30 Liechtenstein Ospelt & Partner Attorneys at Law Ltd.: Alexander Ospelt & Sascha Brunner 190
Continued Overleaf
Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720
Disclaimer
This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.
Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.
This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified
professional when dealing with specific situations.
WWW.ICLG.COMThe International Comparative Legal Guide to: Private Client 2019
Country Question and Answer Chapters:
31 Malta WH Partners: Ramona Azzopardi & Sonia Brahmi 198
32 Netherlands Arcagna B.V.: Nathalie Idsinga & Arnold van der Smeede 204
33 Nigeria Miyetti Law: Dr. Jennifer Douglas-Abubakar & Maryam Muhammad 210
34 Poland Ozog Tomczykowski: Paweł Tomczykowski & Katarzyna Karpiuk 216
35 Portugal SRS Advogados: José Pedroso de Melo 222
36 Singapore WongPartnership LLP: Sim Bock Eng & Tan Shao Tong 229
37 Spain Cases & Lacambra: Ernesto Lacambra & Marc Urgell 235
38 Sweden Lebenberg Advokatbyrå AB: Torgny Lebenberg & Peder Lundgren 241
39 Switzerland Walder Wyss Ltd: Philippe Pulfer & Olivier Sigg 247
40 Turks and Caicos Islands Griffiths & Partners / Coriats Trust Company Limited: David Stewart &
Conrad Griffiths QC 257
41 United Kingdom Macfarlanes LLP: Jon Conder & Robin Vos 262
42 USA Cadwalader, Wickersham & Taft LLP: William Schaaf & Sasha Grinberg 278
FOREWORD
Welcome to the 2019 edition of The International Comparative Legal Guide to
Private Client which I am delighted to introduce this year. The Guide covers a
comprehensive and diverse range of articles that would pique the interest of any
domestic or international practice client adviser. The publication is designed to
provide readers with a comprehensive overview of key issues affecting private
client work, particularly from the perspective of a multi-jurisdictional transaction.
The Guide is divided into two sections and the first section contains seven general
chapters. Each topical chapter is written by a different firm which will be most
helpful for advisers with international clients.
The second section contains insightful country question and answer chapters.
These provide a broad overview of common issues in private client laws and
regulations in 35 jurisdictions.
As an overview, the Guide provides corporate counsel and international
practitioners with a comprehensive worldwide legal analysis of the laws and
regulations of private client work. The articles are provided by some of the most
authoritative and respected advisers in the private client industry and I trust that
you will find them just as valuable.
George Hodgson, CEO, STEP (Society of Trust & Estate Practitioners)Chapter 31
Malta Ramona Azzopardi
WH Partners Sonia Brahmi
he is subject to tax on the income and capital gains that arise in
1 Connection Factors
Malta and income which is remitted to Malta.
Third country nationals who opt for long-term residence status
1.1 To what extent is domicile or habitual residence and EU nationals who opt for permanence residence status will be
relevant in determining liability to taxation in your subject to tax in Malta in their worldwide income.
jurisdiction?
1.4 If residence is relevant, how is it defined for taxation
Individuals are subject to tax in Malta on the basis of territoriality,
purposes?
ordinary residence and domicile and, to some extent, remittance as
follows:
The Maltese Income Tax Act defines the term “resident in Malta”
■ individuals who are ordinarily resident and domiciled in
as an individual who resides in Malta except for such temporary
Malta are subject to tax in Malta on their worldwide income;
absences that are deemed reasonable and in conformity with the
■ individuals who are either ordinarily resident or domiciled in
residence in Malta.
Malta are subject to tax in Malta on income arising in Malta
and income (not capital gains) arising outside Malta and
remitted to Malta; and 1.5 To what extent is nationality relevant in determining
■ income or chargeable gains arising in Malta are subject to tax liability to taxation in your jurisdiction?
in Malta irrespective of the status of the individual.
A minimum tax of €5,000 must be paid annually in Malta by The nationality of a person alone does not give rise to tax
individuals who are ordinarily resident in Malta but not domiciled. implications in Malta.
This applies to individuals who derive income outside Malta of at
least €35,000 which is not remitted to Malta. 1.6 If nationality is relevant, how is it defined for taxation
purposes?
1.2 If domicile or habitual residence is relevant, how is it
defined for taxation purposes? Nationality is not relevant for tax purposes in Malta.
Malta follows the British model on domicile, in that a person 1.7 What other connecting factors (if any) are relevant
acquires a domicile of origin at birth. Domicile is the place where an in determining a person’s liability to tax in your
individual has his permanent home or intends to settle permanently. jurisdiction?
The domicile of origin may change to domicile of choice if a person
proves to the satisfaction of the Commissioner for Inland Revenue There are no other connecting factors to determine a person’s tax
that he or she intends to reside permanently in a state other than the liability in Malta.
state of the domicile of origin.
An individual may generally be considered ordinarily resident in
2 General Taxation Regime
Malta if he or she spends more than 183 days in a calendar year in
the country. However, an individual who does not spend 183 days in
a calendar year in Malta may nonetheless be considered as ordinary 2.1 What gift or estate taxes apply that are relevant to
resident on the basis of his or her frequent and regular visits, family persons becoming established in your jurisdiction?
or business ties in Malta.
No gift tax applies in Malta. However, stamp duty may apply on
1.3 To what extent is residence relevant in determining certain donations of immoveable property. Transfers of immoveable
liability to taxation in your jurisdiction? property or real right to it, are subject to 5% duty, with exceptions in
case of donations linked to the sole ordinary residence. Capital gain
If a person is both resident and domiciled in Malta, he is subject to tax may also apply to gifts, as a donation is considered as a deemed
tax on the worldwide income. If a person is only resident in Malta, sale made at the market value of the property at the time of transfer.
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(b) Where a scheme solely or mainly aimed at obtaining an
2.2 How and to what extent are persons who become advantage which has the effect of avoiding, reducing or
established in your jurisdiction liable to income and postponing liability to tax a person, the person who has
capital gains tax? obtained (or is in the position to obtain) such an advantage,
may be assessed to tax by the Commissioner of revenue on
Persons who are ordinarily resident and domiciled in Malta are such tax advantage.
subject to income tax in Malta on their worldwide income. Persons
who are either ordinarily resident or domiciled in Malta are subject 2.7 Are there any arrangements in place in your
Malta
to tax in Malta on income arising in Malta and income (not capital jurisdiction for the disclosure of aggressive tax
gains) arising outside Malta and remitted to Malta. Income or planning schemes?
chargeable gains arising in Malta are subject to income tax in Malta
irrespective of the status of the individual. To date, there is no such a requirement. However, in the view if the
Tax on capital gains is charged on gains derived from the transfer implementation of the Directive on administrative cooperation in
of the ownership, usufruct, assignment or cession over any rights the field of taxation (DAC 6) – by 1 January 2019 – certain persons
on immoveable property, securities, business, goodwill, business including intermediaries will be required to disclose any potential
permits and intellectual property; or from the transfer of the aggressive tax planning arrangements.
beneficial interest in a trust whose property includes any of the said
assets; or from the rights over any interest in a partnership, which
may be subject to capital gain tax in Malta. Some exemptions and
3 Pre-entry Tax Planning
exceptions to the rule apply.
3.1 In your jurisdiction, what pre-entry estate and gift tax
2.3 What other direct taxes (if any) apply to persons who planning can be undertaken?
become established in your jurisdiction?
There is no estate or gift tax applicable in Malta.
There are no other direct taxes to persons becoming established in
Malta. There is no wealth tax in Malta. 3.2 In your jurisdiction, what pre-entry income and capital
gains tax planning can be undertaken?
2.4 What indirect taxes (sales taxes/VAT and customs &
excise duties) apply to persons becoming established EU, EEA and Swiss Nationals under the Residence Programme
in your jurisdiction? Rules, and non-EU nationals under the Global Programme Rules –
who are ordinarily resident but not domiciled in Malta – may choose
VAT applies on taxable supplies at a standard rate of 18%. A to apply for a special tax status. An individual qualifying under
reduced rate of 5% applies to certain type of supplies such as these Rules will benefit from a fixed 15% tax on any foreign income
supplies of electricity, medical accessories. A 7% rate applies to remitted to Malta subject to a minimum tax charge of €15,000 per
licenced tourism accommodations. A 0% rate applies to food and annum. EU nationals may also opt to become residents of Malta
pharmaceuticals amongst others. Exemptions for VAT include the where the progressive tax rates ranging from 0% to 35% would apply.
sale and leasing of certain immoveable properties, financial services, In view of the fact that Malta asserts its right to tax to a certain
education and some online gaming activities. extent on a remittance basis, planning for income tax purposes can
Stamp duty would also apply on certain legal documents and take place either pre-entry or not.
transfers, such as share transfers (with some exceptions).
Most goods imported from another EU Member State are admitted 3.3 In your jurisdiction, can pre-entry planning be
free of import duties, except for the alcoholic products, tobacco and undertaken for any other taxes?
tobacco products, commercial means of transport and articles used
in the exercise of a trade or profession. On the other hand, imports or There are no other relevant taxes for pre-entry planning.
exports from outside the EU are subject to customs duty depending
on the type of goods. Excise duty applies to certain categories of
products, such as tobacco, cement and other specific goods. 4 Taxation Issues on Inward Investment
2.5 Are there any anti-avoidance taxation provisions that 4.1 What liabilities are there to tax on the acquisition,
apply to the offshore arrangements of persons who holding or disposal of, or receipt of income from
have become established in your jurisdiction? investments in your jurisdiction?
General anti-abuse rules would apply as outlined in question 2.6. In Malta, there are no tax liabilities on the acquisition or on the
holding of investments. However, stamp duty would be payable on
the acquisitions or the disposals of marketable securities, unless an
2.6 Is there any general anti-avoidance or anti-abuse rule
to counteract tax advantages?
exemption is available.
Disposal of marketable securities would be subject to capital gains.
The Income Tax Act caters for two anti-avoidance or anti-abuse However, capital gains derived by a person who is not resident in
rules: Malta on the transfer of shares in a Malta company, which is not
a property company, would be exempt from taxation in Malta if
(a) Artificial or fictitious schemes which reduce the amount of
tax payable may be disregarded and the persons concerned the beneficial owner of the gain is not resident in Malta and is not
would be assessable accordingly. owned and controlled by an individual who is ordinarily resident
and domiciled in Malta.
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Maltese individuals receiving a dividend from a Malta company are other countries in the future. The treaties prevent a resident from
eligible to receive a credit of the Malta tax paid at source on income one territory from being taxed twice on income or gains which he
out of which the dividend is being distributed by operation of the makes in another territory.
full imputation system. Once a treaty is concluded, it becomes law by Ministerial order and
overrides any provisions to the contrary under Maltese domestic tax
4.2 What taxes are there on the importation of assets into legislation.
your jurisdiction, including excise taxes?
Malta
6.2 Do the income tax and capital gains tax treaties
Malta imposes an import duty on imports from non-EU countries. generally follow the OECD or another model?
The import duty varies according to the type of product imported.
An excise duty is paid on certain specific goods (e.g. alcoholic The majority of Malta’s double tax treaties are based on the OECD
beverages and tobacco products) imported or produced in Malta and model.
sold in Malta.
6.3 Has your jurisdiction entered into estate and gift tax
4.3 Are there any particular tax issues in relation to the treaties and, if so, what is their impact?
purchase of residential properties?
Malta has not entered into estate and gift tax treaties.
There is no specific property purchase tax in Malta or an annual
property tax; however, stamp duty tax is payable on the purchase
6.4 Do the estate or gift tax treaties generally follow the
of immovable property with certain exceptions relating to primary OECD or another model?
residence.
Estate and gift taxes are not applicable in Malta.
5 Taxation of Corporate Vehicles
7 Succession Planning
5.1 What is the test for a corporation to be taxable in your
jurisdiction?
7.1 What are the relevant private international law
(conflict of law) rules on succession and wills,
A company incorporated in Malta is automatically deemed to be including tests of essential validity and formal validity
ordinarily resident and domiciled in Malta and so is liable to in your jurisdiction?
corporate income tax on its worldwide income and capital gains.
Foreign companies which are incorporated outside Malta, but are The Civil Code regulates the essential validity and formal validity
managed and controlled from Malta, and/or have their business of wills. There is no conflict of law rule on succession and wills
activities carried out in Malta, are subject to tax in Malta on the within the Civil Code.
income and capital gains that arise in Malta and on the foreign
An individual of a sound mind and who is not subject to incapacity
income which they receive in Malta (except foreign capital gains).
under Maltese law may dispose of his/her property by a will. There
are certain prohibitions related to certain persons incapable of
5.2 What are the main tax liabilities payable by making a will, including minors and individuals interdicted on the
a corporation which is subject to tax in your ground of insanity or of mental disorder. In terms of Maltese law,
jurisdiction? any will made by a person subject to incapacity is null, even though
the incapacity of the testator may have ceased before his/her death.
A corporation in Malta is subject to a standard corporate tax rate of
Wills may be public or secret and they are published by a Notary.
35% on chargeable income and capital gains.
7.2 Are there particular rules that apply to real estate held
5.3 How are branches of foreign corporations taxed in in your jurisdiction or elsewhere?
your jurisdiction?
Under Maltese law, real estate, is referred to as immovable property
A Malta branch of a foreign company would be taxable in Malta on
and any other right attached to immovable property. Any transfer of
the profits attributable to the Malta branch at the rate of 35%. The
immovable property, whether this is by inter vivos or causa mortis,
shareholder would then be entitled to a refund on the distribution of
under pain of nullity, take place by means by a public deed. In
dividends in relation to profits of the branch in the same manner as
addition, if a testator wishes to bequeath an immovable property by
a company.
means of a will, the owner of the immovable property may opt to
grant the said property by donation as long as the donation is made
6 Tax Treaties by means of a public deed.
7.3 What rules exist in your jurisdiction which restrict
6.1 Has your jurisdiction entered into income tax and testamentary freedom?
capital gains tax treaties and, if so, what is their
impact?
An individual may not dispose of his/her estate on death as s/he
deems fit, as there are certain restrictions outlined by law, related to
To date, Malta has concluded double tax treaties with over 70
reserved portion which shall be discussed below.
counties and is expected to continue entering into agreements with
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The Civil Code provides for a reserved portion due to all children, or set up for charitable purposes. Private foundations are set up for
whether conceived and born in wedlock or conceived and born out the benefit of named persons or for a class of persons and may be
of wedlock or adopted, as well as to the surviving spouse. created for numerous reasons such as for estate planning or as part
of a tax-planning exercise. Unlike a purpose foundation, a private
foundation does not solicit funds from the public.
8 Trusts and Foundations
8.5 How are foundations/founders/beneficiaries taxed in
Malta
8.1 Are trusts recognised/permitted in your jurisdiction? your jurisdiction?
The Trust and Trustess Act permits the creation of trusts and Foundations may be elected to be treated as trusts or as companies
regulates trusts and the conduct of Maltese trustees. for tax purposes. When foundations elect to be treated as a company,
The Act caters for various types of trusts: discretionary trusts and the foundation would be subject to a 35% tax on its profits. Upon
fixed interest trusts as well as purpose trusts which are generally set a dividend distribution to its beneficiaries, the beneficiaries will
up for a charitable purpose. Maltese trusts may also have the office be entitled to a tax refund of the Malta tax paid by the foundation.
of the protector of the supervisory council to safeguard the wishes Maltese tax legislation specifically provides that founders and
of the settlor. beneficiaries in a foundation are to be treated in the same manner
as a settlor and beneficiaries under a trust respectively. Similar to
trusts, when the foundation does not opt to be treated as a company,
8.2 How are trusts/settlors/beneficiaries taxed in your it will be a transparent entity for tax purposes. The foundation’s
jurisdiction?
profits will therefore be taxed within the hands of the beneficiaries.
Trusts may be treated either as a see-through entity or taxed as a
company in Malta. 8.6 How are foundations affected by succession and
forced heirship rules in your jurisdiction?
The settlement of a trust would be treated as a chargeable transfer
realised by the settlor unless the settlor is the sole beneficiary.
Any rights arising out of mandatory rules, such as succession rights,
The deemed transfer would have no tax implications in Malta if the testate and intestate, and the indefeasible share of spouses, ascendants
settlors are not ordinarily resident and domiciled in Malta, when and descendants (i.e. reserved portion) cannot be derogated from by
setting assets situated outside Malta. voluntary acts. The law of succession, however, prevails that of
Additionally, the settlement of assets into a trust may have trusts and foundations to a certain extent as the mandatory rules are
implications in terms of stamp duty. protected only where there is a connection to Malta by reason of
Trusts may be elected to be treated as trusts or as companies for domicile of the settlor at the time of the settlement and the place of
tax purposes. When a trust elects to be treated as a company, the the property, if such property is immovable. Foundations and trusts
trust is subject to a 35% tax on its profits. Upon a distribution to its are not affected by the rules of succession and forced heirship where
beneficiaries, the beneficiaries would be entitled to a tax refund of the settlor is not domiciled in Malta at the time of the settlement,
the Malta tax paid by a company. even if he subsequently becomes domiciled in Malta.
Should the transparency model be opted for, the income realised by
the trust would not be attributable to the trust, and will be deemed to 9 Matrimonial Issues
be derived directly by the beneficiaries instead, provided the income
is arising or is received in Malta.
9.1 Are civil partnerships/same-sex marriages permitted/
recognised in your jurisdiction?
8.3 How are trusts affected by succession and forced
heirship rules in your jurisdiction?
A same-sex couple can opt for a civil union or civil marriage.
Once a civil union is registered it has the equivalent effects and
Due to the existence of forced heirship rules in Malta, where a testator consequences in law of a civil marriage.
has descendants or a spouse, its testamentary powers will be somewhat
limited, because of mandatory rules regulating the ‘non-disposable
portion’ of the estate, to which a testator’s spouse or children are 9.2 What matrimonial property regimes are permitted/
recognised in your jurisdiction?
legally entitled. Forced heirship rules and the reserved portion are part
of the ‘mandatory rules’ to which all terms of Maltese law trusts are
subject. However, this rule has been flexibly applied by the Maltese The Civil code recognises the division of the community of acquests
legislator, so that such mandatory rules on forced heirship will only and the community of residue under separate administration.
override the terms of a trust where there is substantial connection to Marriages celebrated in Malta are, in the absence of an agreement to
Malta, either by reason of the domicile of the settlor at the time of the the contrary by public deed, produced ipso jure between the spouses
settlement and the situs of a real property that is settled on trust. the community of acquests.
Alternatively, the future spouses may stipulate in a marriage
8.4 Are private foundations recognised/permitted in your contract that the property acquired by them during marriage will
jurisdiction? be governed by the system of community of residue under separate
administration. If so, the acquisitions made by each spouse will be
The Second Schedule to the Civil Code (Chapter 16 of the Laws of held and administered by the spouse by whom such acquisitions are
Malta) recognise foundations in Malta. Foundations may be private made.
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9.3 Are pre-/post-marital agreements/marriage contracts 10.3 What are the requirements in your jurisdiction in order
permitted/recognised in your jurisdiction? to qualify for nationality?
Property being the subject of matrimonial contracts may be settled Individuals may become citizens of Malta by naturalisation if
in trust only by means of a written instrument. they satisfy the relevant conditions listed in the laws of Malta. An
Property forming part of the community of acquests or governed by application for citizenship by naturalisation is normally considered
the system of the community of residue under separate administration favourably if the individuals are former citizens of Malta, if they were
Malta
may only be settled in trust with the consent of both spouses. born to Maltese parents who are returned migrants, they were born in
Malta but hold a foreign citizenship and at least one of their parents is
a citizen of Malta, if they were born to parents who were non-Maltese
9.4 What are the main principles which will apply in but one of whom or both subsequently acquired Maltese citizenship or
your jurisdiction in relation to financial provision on
they were born abroad and they are of Maltese decedent.
divorce?
Applications for citizenship in Malta are granted provided that the
Divorce would not be granted by the Court if the spouses and all of required documents are presented to the authorities and, where
their children are receiving adequate maintenance, where this is due, applicable, two persons are found to act as sponsors for the applicant.
according to their particular circumstances. Maintenance ordered
by the court by a judgment of separation or agreed to between the 10.4 Are there any taxation implications in obtaining
spouses in a contract of separation, shall be deemed to be adequate nationality in your jurisdiction?
maintenance.
Spouses may, at any time, renounce their right to maintenance. The obtaining of nationality in Malta does not carry with it any tax
Provided further that a divorce pronounced between spouses who implications. If an individual initially moves his primary residence to
were separated by a contract or by a judgment shall not bring about Malta, he may retain his status of non-domiciliary of Malta and thus
any change in what was ordered or agreed to between them, except will only be subject to tax on their income and capital gains which
for the effects of divorce resulting from the law. arise in Malta and the foreign income which is remitted in Malta.
When the party receiving maintenance, whether by virtue of an order Additionally, Malta does not have any municipal, wealth, estate,
of the court or by virtue of a contract of separation, remarries or death or inheritance taxes.
enters into a personal relationship which brings about an obligation
of maintenance by a third party in favour of that party, the same 10.5 Are there any special tax/immigration/citizenship
party shall forfeit the right to receive maintenance payable in respect programmes designed to attract foreigners to become
of that party by the other party in the divorce. resident in your jurisdiction?
Malta offers several programmes which are designed to attract
10 Immigration Issues
foreigners to become residents or citizens in Malta:
■ The Malta Residence Programme for EU, EEA or Swiss
10.1 What restrictions or qualifications does your nationals.
jurisdiction impose for entry into the country? ■ The Global Residence Programme for individuals who are
not long-term residents in Malta and who are not EU, EEA or
EU nationals travelling from a border-free Schengen EU country to Swiss nationals.
Malta may freely enter in Malta without the need of a national ID ■ The Malta Individual Investor Programme for individuals
card or passport. When travelling from a non-Schengen EU country who contribute to the economic development of Malta.
a valid ID card or passport is required. Foreign individuals will be granted Maltese citizenship by
naturalisation.
With respect to non-EU nationals, admission in Malta is permitted if
the individuals are in possession of a valid passport or an equivalent ■ The Malta Residence and Visa Programme for non-EU, EEA
or Swiss nationals who wish to reside indefinitely in Malta
recognised travel document which permits them to cross the border,
and consequently also travel and move freely within the
are in possession of documents sustaining the purpose and conditions
Schengen Area.
of the planned visit, have sufficient means of support for the planned
■ The Malta Retirement Programme for EU, EEA or Swiss
visit and their return to their country of origin, are in possession of an
nationals who intend to retire in Malta.
entry or transit visa (if required), have not been prohibited to enter in
through a Schengen Information System alert and are not considered
a threat to public policy and international relations. 11 Reporting Requirements/Privacy
10.2 Does your jurisdiction have any investor and/or other
11.1 What automatic exchange of information agreements
special categories for entry?
has your jurisdiction entered into with other
countries?
Malta offers the Individual Investor Programme, where individuals
can obtain Maltese citizenship of naturalisation on the basis that they Malta has entered into an Intergovernmental agreement with the
can contribute to the economic development of Malta through their US and is participating in FATCA. Malta is also an early adopter
talent, expertise and business connections. Once an individual is of the Common Reporting Standard (CRS) launched by the OECD
granted citizenship under the Malta Individual Investor Programme, and started exchanging information with its counterparts in 2017.
he is entitled to establish residence status in Malta, the right to live in Country-by-country reporting was also implemented in Malta in
all EU countries and to travel freely within the Schengen Area. The accordance with BEPS Action 13.
family members of the applicant can also benefit from the programme.
202 WWW.ICLG.COM ICLG TO: PRIVATE CLIENT 2019
© Published and reproduced with kind permission by Global Legal Group Ltd, LondonWH Partners Malta
11.2 What reporting requirements are imposed by 11.3 Are there any public registers of owners/beneficial
domestic law in your jurisdiction in respect of owners/trustees/board members of, or of other
structures outside your jurisdiction with which a persons with significant control or influence over
person in your jurisdiction is involved? companies, foundations or trusts established or
resident in your jurisdiction?
FATCA, CRS and the country-by-country reporting were
implemented in domestic law in the Cooperation with Other In 2017, Malta implemented the relevant provisions on beneficial
Malta
Jurisdiction on Tax Matters Regulations. ownership information of Directive (EU) 2015/849 of the European
Parliament and of the Council of 20 May 2015. Effective from
1 January 2018, Maltese companies are required to identify and
maintain a register of their ultimate beneficial owners as well as to
provide information on their beneficial owners to the Malta Registry
of Companies which will be keeping its own beneficial owners
register.
Ramona Azzopardi Sonia Brahmi
WH Partners WH Partners
Quantum House Quantum House
75 Abate Rigord Street 75 Abate Rigord Street
Ta’ Xbiex XBX1120 Ta’ Xbiex XBX1120
Malta Malta
Tel: +356 7988 5605 Tel: +356 7958 7400
Email: ramona.azzopardi@whpartners.eu Email: sonia.brahmi@whpartners.eu
URL: www.whpartners.eu URL: www.whpartners.eu
Ramona Azzopardi is recognised as one of the leading taxation Sonia Brahmi is a Senior Associate at WH Partners where she
lawyers in Malta. She is headings the Tax and Private Client primarily practises tax law. She specialises in tax transparency,
Department. She regularly advises corporate clients in the gaming advising financial institutions on the implementation of the FATCA-IGA
and gambling, financial services, and digital services industries, on regulations, and international groups with on their country-by-country
their cross-border tax implications. She also assists HNWI families in reporting obligations. She also assists clients with the implementation
estate and tax planning. Ramona holds a Doctor of Laws Degree and of the Common Reporting Standard, providing staff training, advising
Master’s in Financial Services from the University of Malta. Ramona on due diligence and reporting rules, and providing health-check
is a regular speaker at tax conferences and often contributes articles services.
to prominent publications. She is also a Council Member at the Malta
In addition, Sonia provides corporate tax advice, focusing on the
Institute of Taxation.
implementation of tax- efficient structures for cross-border transactions.
WH Partners is a Malta-based leading law firm, with consulting rooms in London, Prague, Livorno and Warsaw. The firm has a well-established,
internationally recognised practice advising clients on regulation and licensing of gaming & gambling, blockchain applications and financial services,
tax, private clients, on the sale, purchase and merger of companies, on banking and finance matters, intellectual property, data protection, real estate
and employment law. Both the firms and the lawyers are highly ranked by the foremost legal directories, including World Tax, Chambers & Partners,
The Legal 500 and IFLR 1000. WH Partners is the exclusive member for Malta of Ally Law. More information on www.whpartners.eu.
ICLG TO: PRIVATE CLIENT 2019 WWW.ICLG.COM 203
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