COMMISSIONER FOR TAX AND CUSTOMS ACT

CHAPTER 517

COMMISSIONER FOR TAX AND CUSTOMS ACT

To make provision for the constitution of the office of Commissioner for Tax

and Customs.

20th January, 2012 *

ACT XXII of 2011 , as amended by Acts XXIII of 2014 and XIII of

2015 and VII of 2019, VIII of 2020 and VII of 2021 † and XXVII of 2023.

PART I

Preliminary provisions

The short title of this Act is the Commissioner for Tax and

Customs Act.

(Article 4F)

COMMISSIONER FOR TAX AND CUSTOMS ACT

Declaration in terms of article 4F

I,......................................................................................

…................................................................................................

..do solemnly and sincerely declare that I shall deal with and

regard all information, data and documents, and copies thereof,

that may come to my knowledge or in my possession in my

capacity as, or in the exercise of my duties as, a member / the

secretary (delete as necessary) of the Board of Governance

established in terms of the Commissioner for Tax and Customs

Act as secret and confidential and that I shall not at any time

communicate such information or data, or the contents of such

documents, or copies thereof to any person except as may be

necessary for the purpose of duly executing my duties as

member / the secretary (delete as necessary) of the said Board

of Governance.

Signature

Declared on oath before the Court of Appeal, this ................

day of ...............................

Registrar

In this Act, unless the context otherwise requires

"the Commissioner" means the Commissioner for Tax and

Customs appointed under article 3;

"the Minister" means the Minister responsible for finance;

"revenue acts" means the Income Tax Act, the Income Tax

Management Act, the Duty on Documents and Transfers Act, the

Monte di Pietà Act, the Immovable Property (Acquisition by Non-

Residents) Act, the Value Added Tax Act, the Eco-Contribution

Act, the Customs Ordinance, the Import Duties Act, the Excise

Duty Act, and any regulations made thereunder;

"revenue departments" means the Inland Revenue Department,

the Value Added Tax Department and the Department of Customs.

PART II

Establishment of Commissioner for Tax and Customs

(1) There shall be a Commissioner for Tax and Customs

who shall be head of the revenue departments and who shall be

appointed by the Prime Minister.

(2) In exercising his functions in relation to the determination of a

person’s tax affairs under the revenue Acts the Commissioner shall act

independently and shall not be subject to the direction or control of

any board established under this Act or of any Minister, Government

official, agency or authority.

(3) On the coming into force of this Act and notwithstanding

any other law, all functions vested in the Commissioner of Inland

R e v e n u e , t h e C o m m i s s i o n e r o f Va l u e A d d e d Ta x a n d t h e

Comptroller of Customs under the revenue acts shall be transferred

to and shall be exercised by the Commissioner.

(3A) In any law, statutory form and judicial act, all references to

the Commissioner of Inland Revenue, the Commissioner of Value

*see article 1(2) of this Act as originally enacted, and Legal Notice 16 of 2012.

†See Legal Notice 270 of 2021.

Added Tax, the Comptroller of Customs and the Commissioner for

Revenue shall be read and construed as references to the

Commissioner for Tax and Customs and all references to the Office of

the Commissioner for Revenue shall be read and construed as

references to the Malta Tax and Customs Administration.

(4)

(a) The Commissioner may, with the concurrence in

writing of the Minister, delegate any of the functions

under this Act or under the revenue acts to any official

of the revenue departments.

(b) Any delegation made under this sub-article shall be

published by the Minister by order in the Gazette.

(c) Repealed by Act XXVII.2023.5.

(d) The Commissioner may, at any time, with the

concurrence of the Minister, resume any or all of the

functions delegated under this sub-article. A notice of

any such resumption of functions shall be published in

the Gazette.

(e) When the Commissioner resumes any functions that

were delegated to another person under this sub-

article, he shall also assume, in lieu of that person, the

legal and judicial representation of the Government on

all documents, judicial acts and actions that were

drawn, sent, filed, instituted or taken by or in the name

of or against that person in virtue of the said

delegation.

(5) The Commissioner shall have the legal and judicial

representation of the Government on all documents, judicial acts

and actions relating to revenue collection and any other matter in

which the revenue departments have an interest, unless such

representation has been delegated in accordance with sub-article

(4).

(6) The Commissioner shall be responsible for the

organisational restructuring, supervision and overall administration

of the revenue departments.

(7) In addition to the duties assigned to a head of department

under article 18(1) of the Public Administration Act and under any

revenue act, the Commissioner shall

(a) when any of his functions have been delegated in

terms of sub-article (4), provide direction to the person

to whom such functions have been delegated;

(b) issue guidelines aimed at upholding and ensuring

compliance with the directions given under paragraph

(a);

(c) take measures to ensure coordination between the

revenue departments and execute his functions under

sub-article (6);

(d) assume overall responsibility for the management and

restructuring of human resources within the revenue

departments;

(e) advise the Minister on matters relating to the

management and administration of the revenue

departments;

(f)

recommend amendments to the revenue acts; and

(g) perform such other functions as may from time to time

be assigned to him by the Minister.

(8)

Repealed by Act XXVII.2023.5.

(9) The provisions of this article shall be without prejudice to

the powers of the Commissioner to assign duties and delegate

functions to officials within the revenue departments and, where

allowed by law, to other persons, as may be necessary for the

proper exercise of his functions

Provided that -

(a) an assignment or delegation as aforesaid shall not in

any way limit the powers, duties, rights and functions

of the Commissioner under any revenue act or under

this Act;

(b) the Commissioner may assign or delegate to the same

person functions that are related to more than one

revenue act or to the revenue acts in general.

(10) Notwithstanding anything contained in any provision of the

revenue acts or of any other law, the officials to whom the

Commissioner has delegated functions in accordance with sub-

article (4) shall furnish to the Commissioner such information,

being information obtained for any of the purposes of a revenue

act, as may be directed by the Commissioner and the Commissioner

may use or authorise the use of such information and of any other

information that he may obtain in the course of the performance of

his functions for the purposes of any other revenue act.

(11) Repealed by Act XXVII.2023.5.

The Minister may make regulations for the purpose of

making any delegation under this Act and for stipulating the

conditions under which such delegation is made and to give better

effect to any of the provisions of this Act, and for the better

enforcement thereof.

PART IIA

Board of Governance

(1)

There shall be a board, to be known as the Board of

Governance, and in this Part referred to as "the Board", that shall be

accountable to the Minister and that shall have the following

functions

(a)

to develop, review, update and submit for the

Minister’s approval proposals for

(i)

the vision of the Malta Tax and Customs

Administration;

(ii)

the strategic document for the Malta Tax

and Customs Administration;

(b)

to review and report upon the performance of the

key functions of the Commissioner;

(c)

to review, and to advise and make

recommendations on, reports and proposals that may be

forwarded to it.

(2)

It shall not be the function of the Board to deal with,

consider, review or make any determination on matters that are

specific to particular persons or that require access to or an

investigation into the tax affairs of particular persons.

(3)

The Board shall prepare and submit such annual and other

reports on the performance of its functions as the Minister may

request.

(1)

The Board shall consist of not less than five (5) and

not more than seven (7) members appointed by the Minister.

(2)

The Minister shall appoint the members of the Board from

amongst persons with proven experience in areas relevant to the

functions of the Board, such as tax management, economic analysis,

financial analysis, risk analysis and fiscal law.

(3)

The members of the Board shall be appointed for a term of

three (3) years against such remuneration as the Minister may

determine and may be re-appointed in the manner provided for in this

article on the expiration of their term of office.

(4)

The members of the Board shall discharge their duties in

their own individual judgement and shall not be subject to the

direction or control of any other person or authority.

(5)

A person shall not be qualified to be appointed, or to hold

office, as a member of the Board if he

(a)

is a member of the House of Representatives or of

the European Parliament;

(b)

is a serving judge or magistrate;

(c)

is legally interdicted or incapacitated;

(d)

has been declared bankrupt or has made a

composition or scheme of arrangement with his creditors;

(e)

has been convicted of an offence against a

revenue Act, or of an offence affecting public trust, or of theft

or fraud, or of knowingly receiving property obtained by theft

or fraud, or of bribery or of money laundering, or has been

sentenced to a term of imprisonment for any other reason;

(f)

has any conflict of interest.

(6)

A member of the Board may be relieved of office by the

Minister on the ground of a conflict of interest or inability to perform

the functions of his office, whether due to infirmity of mind or of body

or to any other cause, or of misbehaviour.For the purposes of this sub-

article, repeated unjustified non-attendance of Board meetings may be

deemed to amount to misbehaviour.

(7)

A member of the Board may resign from office by letter

addressed to the Minister.

(8)

Where any vacancy occurs in the Board for any reason other

than the lapse of the term of office, that vacancy shall, for the

remainder of the term of office which has become vacant, be filled by

another person appointed by the Minister.

(9)

The Minister shall appoint a person to act as secretary of the

Board and shall determine his duties and terms of engagement.

(10) A person shall not be eligible for appointment as secretary

of the Board if he has a conflict of interest.

A chairperson and deputy chairperson of the Board shall be

appointed by the Prime Minister after consultation with the Minister

from among the members of the Board. The deputy chairperson shall

have all the powers of the chairperson and perform all the functions of

the chairperson during the chairperson’s absence or inability to act as

chairperson or while the chairperson is on vacation or during any

vacancy in the office of chairperson.

(1)

For the purpose of sub-articles (5) and (10) of article

4B, but without prejudice to the generality thereof, a person shall be

deemed to have a conflict of interest where the impartial and objective

exercise of his functions is compromised for reasons involving family,

emotional life, political affinity, economic interest or any other direct

or indirect personal interest.

(2)

If a member of the Board or the secretary of the Board has a

conflict of interest, he shall, as soon as may be after becoming aware

of that conflict, declare that interest to the chairperson.

(3)

When a conflict of interest of a person is relevant to a

particular matter that is not central to the functions of the Board, and is

not likely to affect his impartiality and objectivity in relation to the

general functions of the Board, that person shall refrain from

participating in any discussion or decision on that matter.

(4)

When a conflict of interest of a person is central to the

functions of the Board, or is likely to affect his impartiality and

objectivity in relation to the general functions of the Board, he shall

tender his resignation.

(5)

Any question on the existence of a conflict of interest, or on

whether a matter is central to the functions of the Board or is likely to

affect a person’s impartiality and objectivity in relation to the general

functions of the Board, shall be decided by the chairperson of the

Board or, if the person in question is the chairperson, by the deputy

chairperson of the Board.

(6)

The provisions of this article are without prejudice to the

powers of the Minister under article 4B(6).

(1)

The Commissioner shall provide to the Board such

information that he may possess in virtue of his office as the Board

may reasonably request for the proper execution of its functions.

Requests for such information shall be made by the chairperson of the

Board.

(2)

Notwithstanding sub-article (1), the Commissioner shall not

furnish the Board with information that is specific to particular persons

and any information compiled from records relating to particular

persons shall be given in a format that does not reveal, directly or

indirectly, the identity of those persons.

(1)

Except as necessary for the purposes of the revenue

Acts, every member of the Board and the secretary of the Board shall

regard and deal with all documents and information that may come to

his knowledge or in his possession in his capacity, or in the exercise of

his duties, as a member of the Board or as the secretary of the Board,

as secret and confidential and shall make and subscribe before the

Court of Appeal a declaration on oath to that effect in the form set out

in the Schedule.

(2)

Any person who, except as provided for or allowed under

the revenue Acts or for the purposes thereof, communicates or

attempts to communicate to any other person any matter or thing

coming to his notice or being in his possession in the performance of

his duties as a member of the Board or as secretary of the Board shall

be guilty of an offence and shall, on conviction, be liable to a fine

(multa) of not less than two hundred and thirty-two euro (€232) and

not more than two thousand and three hundred and twenty-five euro

(€2,325) or to imprisonment for a period not exceeding six (6) months,

or to both such fine and imprisonment.

(1)

The Board shall meet within one (1) month from its

constitution and as often as may be necessary or expedient thereafter

Provided that it shall meet at least once every two (2)

months.

(2)

The meetings of the Board shall be called by the chairperson

of the Board on his own initiative, or at the request of any two (2) of

the other members or at the request of the Commissioner.

(3)

The Board shall not act unless a quorum of three (3)

members, which shall include the chairperson or the deputy

chairperson, is present.

(4)

The meetings of the Board shall be chaired by its

chairperson, or in his absence, by its deputy chairperson.

(5)

The decisions of the Board shall be adopted by a simple

majority of the votes of the members present and voting and in the

event of an equality of votes, the member presiding at the meeting

shall have and shall exercise a second or casting vote.

(6)

The Commissioner shall be entitled to attend the meetings

of the Board and to take part in the discussions but shall have no vote.

The absence of the Commissioner from any meeting shall not

invalidate the proceedings of such meeting.

(7)

The Board may delegate to its chairman, to a sub-committee

of its members or to the Commissioner responsibilities for such

specific matters or for such areas of its functions as it may consider

necessary. When such a delegation has been made, the chairman, the

sub-committee or the Commissioner, as the case may be, shall report

their findings and conclusions to the Board and no such findings and

conclusions shall be considered as final unless they have been ratified

by the Board.

(8)

Any vacancy among the members of the Board, and any

participation therein by a person not entitled so to do, shall not

invalidate the proceedings of the Board.

(9)

The Board shall have at its disposal such place or places for

its meetings and such equipment for the performance of its functions

as the Minister may direct. The Commissioner shall provide the Board

with all secretarial support that the Board may reasonably require.

(10) The Commissioner shall keep a record of the proceedings of

the Board and of its sub-committees.

(11) Subject to the provisions of this Act, the Board may regulate

its own procedure.

(12) All acts done by any person acting in good faith as a member

of the Board shall be valid as if he were a member notwithstanding

that some defect in his appointment or qualification be afterwards

discovered.

PART III

Remission of Revenue

(1) There shall be set up in accordance with the provisions

of this Part, a Board to be known as the Revenue Remissions

Supervisory Board (hereinafter in this Part referred to as the

''Board'') for the purpose of providing oversight on the remission of

amounts due to revenue departments under the revenue acts.

(2) The Board shall consist of a Chairperson to be appointed by

the Minister who shall preside over the Board and of such number

of members not being less than two or more than six as the Minister

may from time to time appoint.

(3) The Chairperson and the members of the Board shall be

appointed by the Minister in the following manner from amongst

persons who, in the Minister’s opinion, have previous experience

and special qualifications in a particular field of expertise falling

within the competence of the Board

(a) the Chairperson shall be appointed from amongst

persons who are not public officers; and

(b) the members of the Board shall be appointed after

being approved by the Minister from a list which may

only include public officers and public service

employees submitted to the Minister by the

Commissioner for Tax and Customs.

(4) The Chairperson and the members of the Board shall be

appointed for a term of three years and shall vacate their office at

the expiration of the term of their appointment unless the

appointment is extended or renewed.

(5) Upon their appointment, the Chairperson and the members

of the Board shall take an oath to carry out their functions and

duties with impartiality, fairness and according to law and not to

disclose any matter that comes to their knowledge in the exercise of

their functions except as may be necessary for the purpose of

carrying out such functions or in relation to matters connected

therewith or for the purpose of complying with an order of a court

or of another competent body exercising judicial or investigative

functions under any law. The oath shall be taken before the

Attorney General.

(6) The Board shall as much as possible seek to adopt its

conclusions by unanimous decision but when such a decision is not

achievable it shall act by a majority of votes from amongst the

Chairperson and the members.

(7) The reports on the conclusions of the Board on individual

cases or on exercises of a general nature shall be signed by the

Chairperson and shall be sent to the Commissioner for Tax and

Customs as soon as possible after being adopted. In the said reports

the Board may also make recommendations of a general or of a

specific nature.

(8) The Commissioner for Tax and Customs shall, after having

examined a recommendation of the Board, report to the

Chairperson of the Board within a period of two months informing

him about any final decision taken upon the recommendation.

(9) The Board shall, by the 30th April of every year following

the year when it is appointed issue a general report on its activities

during the previous year. The report shall include statistical

information on the cases examined during the reporting period.

(10) The Chairperson shall receive such remuneration as the

Minister may from time to time determine.

(11) The Minister may by order establish sections of the

Revenue Remissions Supervisory Board and may designate the

categories of particular oversight or exercises to be assigned to

each section. The Minister may by subsequent order amend, revoke

or substitute such order.

(12) When the Chairperson or a member of the Board has

abstained from sitting, or is otherwise unable to act, another

Chairperson or member shall be appointed by the Minister to the

Board or to a section thereof and shall be surrogated in his or her

stead.

(1) The Commissioner may remit in whole or in part any

penalties and interest imposed under the revenue acts in such

circumstances and subject to such conditions as the Minister may

prescribe by means of rules.

(2) The Minister may delegate to the Commissioner the power

to prescribe the circumstances in which and the conditions under

which penalties and interest may be remitted and may at any time

amend or revoke any such delegation. To the extent that they fall

within the terms of any such delegation, guidelines published by

the Commissioner for the purposes of this article shall have the

same effect as rules prescribed in terms of sub-article (1).

(3) In this article "penalties" means additional tax, additional duty

and administrative penalties that are imposed under the revenue acts.

PART IV

Miscellaneous

(1) Without prejudice to the generality of article 4, and

subject to sub-article (2), the Minister may direct that provisions

relating to the administration of a revenue Act shall apply in such

manner and to such extent as may be prescribed for the purpose of

the administration of another revenue Act and shall accordingly be

read and construed and shall be binding and have effect, mutatis

mutandis, as if they were provisions contained in that other revenue

Act.

(2) Regulations under sub-article (1) may be made with respect

to provisions relating to the keeping, production, collection and

inspection of any information, books and records.

(3) The Minister responsible for finance may from time to time

make rules generally for carrying out the provisions of the revenue

acts.

(4)

Any guidelines, explanations or instructions relating to the

revenue acts or of the rules referred to in sub-article (3) contained

i n a p u bl icat io n pu b l ish e d b y o r u n der t he au t h or i t y of t he

Commissioner and distributed or made available to taxpayers in

general, shall be read and construed as one with such rules and shall

have the same effect as the rules to the extent that such guidelines,

explanations or instructions are not in conflict with the revenue acts

on the said rules or with guidelines, explanations or instructions

published at a later date and to the extent that -

(a) they give a definition of any term or an interpretation of

any provision contained in the revenue acts or the rules;

(b) they determine the manner in which any provision of

the revenue acts or the rules is to be applied;

(c) they determine any matter which in accordance with the

revenue acts or the rules may be determined by or is

subject to the approval or the discretion of the

Commissioner;

(d) they provide for the use of electronic communications.

Notwithstanding any provision contained in any Act, except

for any arrangement under article 76 of the Income Tax Act, any

information available to the Commissioner through any one of the

revenue departments may be forwarded to and used by any other

revenue department.''.

Any notice, receipt or other document given by the

Commissioner under this Act or any of the revenue acts shall be signed

by the Commissioner or by a person or persons authorized by the

Commissioner and every such notice shall be valid if the signature is

printed, stamped or written thereon.

A document that is certified by the Commissioner, or by a

person authorised by him for this purpose, as being a true reproduction

of an electronic copy, prepared by or under the authority of the

Commissioner, of a document that was furnished to or issued by the

Commissioner, shall be deemed for all purposes of the law as an

authentic copy of the original document and shall constitute and be

admissible as evidence in any proceedings to the same extent as the

original.

The Commissioner, the members of the boards established

under this Act and the persons having any official duty or being

employed in the administration of the revenue acts shall not be held

liable in damages for anything done or omitted to be done in the

discharge or purported discharge of any function under this Act, unless

the act is shown to have been done or omitted to be done, as the case

may be, in bad faith.

Any judicial act filed by the Commissioner and any judicial

act filed by any person to be served upon the Commissioner or in

proceedings against the Commissioner in terms or for the purposes of

any revenue Act, shall clearly indicate in the heading, below the name

of the court or tribunal in which it is filed, the revenue Act in question.

A default of compliance with this provision shall not constitute

grounds for the nullity of the judicial act or judicial proceedings in

question provided that the defect is rectified by the party filing that act

as soon as may be after it has been requested to do so by that court or

by that tribunal.

Notwithstanding the provisions of articles 1196 to 1204 of

the Civil Code, both inclusive, no set-off may be made of any debt due

in terms of a revenue Act to or by the Commissioner or any official to

whom the Commissioner has delegated functions in accordance with

sub-article (4) of article 3 against any debt due in terms of any other

revenue Act by or to the Commissioner or such other official as

aforesaid

Provided that a set-off as aforesaid may be made and shall

have effect to such extent and in such manner as may be approved by

the Commissioner or as may be prescribed.