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Clarification on the Presumption of Deduction - Article 38, ITA

  1. Where a payor that is liable to make or makes a payment of investment income that falls under the provisions of article 41(a)(iv)(1) is not a person that is resident in Malta, and the relevant public issue was not made on a stock exchange that is situated in Malta, then it cannot be reasonably expected that such a payor is aware of the said Investment Income Provisions and is not expected to make a deduction in terms of article 33 of the Income Tax Act in relation to such investment income. Consequently, the presumption concerning the deduction that ought to have been made as per article 38 of the Income Tax Act does not apply.

  2. Where a payor that is liable to make or makes a payment of investment income that falls under the provisions of article 41(a)(iv)(1) is resident in Malta, but was not so resident at the time when the relevant public issue was made, and such an issue was not made on a stock exchange that is situated in Malta, then the said payor is expected to take all those reasonable measures so as to determine if payments of such investment income are made to recipients for the purposes of the Investment Income Provisions. What constitutes a reasonable measure will depend on the circumstances of the case. However, it is expected that a payor is able to produce evidence of at least two attempts at contacting the relevant persons in order to determine whether they are recipients for the purposes of the Investment Income Provisions. Where such measures fail, then it is not expected that the payor makes a deduction in terms of article 33 of the Income Tax Act in relation to such investment income. Consequently, the presumption concerning the deduction that ought to have been made as per article 38 of the Income Tax Act does not apply.

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