Directive Implementation Regulations, 2019

L.N. 159 of 2019

INCOME TAX ACT

(CAP. 123)

European Union Tax Dispute Resolution Mechanisms

Directive Implementation Regulations, 2019

IN EXERCISE of the powers conferred by articles 52B and 96 of

the Income Tax Act, the Minister for Finance, has made the following

regulations:-

(1) The title of these regulations is the European Union Citation and

Tax Dispute Resolution Mechanisms Directive Implementation commencement.

Regulations, 2019.

(2) These regulations shall come into force on the 1 July 2019.

They shall apply to any complaint submitted on or after 1 July 2019

relating to questions in dispute relating to income or capital earned in

or after the year immediately preceding the year of assessment 2019.

(1) The scope of these regulations is the implementation Scope.

of Council Directive (EU) 2017/1852 of 10 October 2017 on tax

dispute resolution mechanisms in the European Union.

(2) These regulations lay down rules on a mechanism to

resolve disputes between Malta and other Member States when those

disputes arise from the interpretation and application of agreements

and conventions that provide for the elimination of double taxation of

income and, where applicable, capital. It also lays down the rights and

obligations of the affected persons when such disputes arise.

(1)

In these regulations, unless the context requires Interpretation.

otherwise

"affected person" means any person, including an

individual, that is a resident of a Member State for tax purposes,

and whose taxation is directly affected by a question in dispute;

"Commission" means the Commission of the European

Union;

"Commissioner" means that it also includes his authorised

representative;

"competent authority" in respect of Malta means the

Commissioner and in respect of any other Member State it means

the authority of that Member State which has been designated as

such by that Member State concerned;

"competent court" in respect of Malta means the Civil

Court, First Hall and in respect of any other Member State it

means the court, tribunal or other body of a Member State which

has been designated as such by that Member State concerned;

"double taxation" means the imposition by two or more

Member States of taxes covered by an agreement or convention

referred to in regulation 2(2) in respect of the same taxable

income or capital when it gives rise to either

(a)

the imposition of an additional tax charge;

(b)

an increase in tax liabilities; or

(c) the cancellation or reduction of losses that

could be used to offset taxable profits;

"Member State" means a member of the European Union;

"Member State concerned" means a Member State involved

in the question in dispute;

"other Member State" means a Member State other than

Malta;

"question in dispute" means the matter giving rise to a

dispute referred to in regulation 2(2).

(2) Any term not defined in these regulations shall, unless the

context requires otherwise, have the meaning that it has at that time

under the relevant agreement or convention referred to in regulation

2(2) that applies on the date of receipt of the first notification of the

action that resulted in, or that will result in, a question in dispute. In

the absence of a definition under such agreement or convention, an

undefined term shall have the meaning that it had at that time under the

law of the Member State concerned for the purposes of the taxes to

which the said agreement or convention applies, any meaning under

the applicable tax laws of that Member State prevailing over a

meaning given to the term under other laws of that Member State.

(1) An affected person shall be entitled to submit a

complaint to the Commissioner on a question in dispute requesting the

resolution thereof.

(2) An affected person shall have the right to submit a

complaint to the Commissioner in accordance with these regulations

regardless of whether he has recourse to remedies available under any

other provisions of Maltese law or the law of any one (1) of the other

Member States concerned.

(3) A complaint shall be submitted to the Commissioner in the

Maltese or the English language within three (3) years from the receipt

by the affected person of the first notification of the action resulting in,

or that will result in, the question in dispute.

(4) The affected person shall indicate in the complaint made to

the Commissioner which other Member States are concerned and shall

simultaneously submit the complaint with the same information to the

competent authority of each of the other Member States concerned.

(1) A complaint shall only be accepted by the Information that

Commissioner if, as a first step, the affected person making the shall

submitted by the

complaint provides the Commissioner and the competent authorities of affected person.

each of the other Member States concerned with the following

information

(a) the name(s), address(es), tax identification number(s)

and any other information necessary for identification of the

affected person(s) who presented the complaint to the competent

authorities and of any other person concerned;

(b)

the tax periods concerned;

(c) details of the relevant facts and circumstances of the

case (including details of structure of the transaction and of the

relationship between the affected person and the other parties to

the relevant transactions, as well as any facts determined in good

faith in a mutual binding agreement between the affected person

and the tax administration, where applicable) and more

specifically, the nature and the date of the actions giving rise to

the question in dispute (including, where applicable, details of

same income received in the other Member State and of

inclusion of such income in the taxable income in the other

Member State, and details of the tax charged or that will be

charged in relation to such income in the other Member State), as

well as the related amounts in the currencies of the Member

States concerned, with a copy of any supporting documents;

(d) reference to the applicable national rules and to the

agreement or convention referred to in regulation 2(2); where

more than one (1) agreement or convention is applicable, the

affected person making the complaint shall specify which

agreement or convention is being interpreted in relation to the

relevant question in dispute. Such agreement or convention shall

be the applicable agreement or convention for the purposes of

these regulations;

(e) the following information, together with copies of

any supporting documents

(i) an explanation of why the affected person

considers that there is a question in dispute;

(ii) the details of any appeals and litigation initiated

by the affected person regarding the relevant transactions

and of any court decisions concerning the question in

dispute;

(iii) a commitment by the affected person to respond

as completely and quickly as possible to all appropriate

requests made by a competent authority and to provide any

documentation at the request of the competent authorities;

(iv) a copy of the final tax assessment decision in

the form of a final tax assessment notice, tax audit report or

other equivalent document leading to the question in

dispute and a copy of any other documents issued by the

tax authorities with regard to the question in dispute where

relevant;

(v) information on any complaint submitted by the

affected person under another mutual agreement procedure

or under another dispute resolution procedure as defined in

regulation 21(5) and an express commitment by the

affected person that he will abide by the provisions of

regulation 21(5), if applicable;

(f) any specific additional information requested by the

competent authorities that is considered necessary to undertake

the substantive consideration of the particular case.

(2) The Commissioner may request additional information

referred to in paragraph (f) of sub-regulation (1) within three (3)

months from the receipt of the complaint. The Commissioner may

make further requests for information during the mutual agreement

procedure under regulation 10 when he considers this to be necessary,

without prejudice to the applicability of the laws of Malta and of the

national laws of the other Member States concerned regarding the

protection of information and the protection of trade, business,

industrial or professional secret or trade processes.

(3) The affected person shall reply to any request made to him

by the Commissioner in accordance with paragraph (f) of sub-

regulation (1) within three (3) months from the receipt of the request

and shall send a copy of the reply simultaneously to the competent

authorities of the other Member States concerned.

The Commissioner shall acknowledge receipt of the Acknowledg-

complaint within two (2) months from the date on which he receives ment

of the

it. He shall also within that period inform the competent authorities of complaint.

the other Member States concerned of the receipt of the complaint and

about the language or languages he intends to use for communications

during the relevant proceedings.

(1) The Commissioner shall take a decision on the Acceptance or

acceptance or rejection of the complaint within six (6) months of the rejection

complaint.

receipt thereof or within six (6) months of the receipt of the

information referred to in regulation 5(1)(f), whichever is later. The

Commissioner shall inform the affected person and the competent

authorities of the other Member States concerned of his decision

without delay.

(2) The Commissioner may decide to reject a complaint within

the period provided for in sub-regulation (1) if

(a) the complaint lacks information required under

regulation 5, (including any information requested under

regulation 5(1)(f) that was not submitted within the deadline

specified in regulation 5(3));

(b)

there is no question in dispute; or

(c) the complaint was not submitted within the three (3)

year period set out in regulation 4(3).

(3) When informing the affected person of a decision to reject

a complaint in accordance with the provisions of sub-regulation (1),

the Commissioner shall provide the general reasons for the rejection.

(4) Where the competent authorities of all the Member States

concerned have rejected the complaint, the affected person shall have

the same right to appeal from the decision of the Commissioner

rejecting the complaint as if the Commissioner’s decision were an

assessment issued under the Income Tax Management Act and as if the Cap. 372.

Commissioner has refused an objection to an assessment duly filed by

the affected person, and the relevant provisions of the Income Tax Cap. 372.

Management Act relating to appeals shall apply mutatis mutandis

Provided that the time within which an appeal may be made

in accordance with article 35(1) of the Income Tax Management Act

shall run from the date on which the affected person has been notified

of the decision to reject the complaint by the competent authorities of

all the Member States concerned.

(5) An affected person who exercises the appeal right referred

to in sub-regulation (4) or an appeal right under the national law of any

other Member State concerned shall be barred from making a request

under regulation 11(1)(a)

(a) while the decision is still under appeal according to

the provisions of the national law of any of the Member States

concerned;

(b) where the rejection decision can still be further

appealed under the appeal procedure of any of the Member

States concerned; or

(c) when a rejection decision has been confirmed under

the appeal procedure in sub-paragraph (5)(a) but it is not possible

to derogate from the decision of the relevant court or other

judicial bodies in any one (1) of the Member States concerned.

(6) Where an appeal right referred to in sub-regulation (4) has

been exercised, the decision of the relevant court or other judicial body

shall be considered for the purposes of regulation 11(1)(a).

(7) Where the Commissioner has not taken a decision on the

complaint within the time provided for in sub-regulation (1), the

complaint shall be deemed to be accepted by the Commissioner.

(1) Within the period of six (6) months from the receipt

of a complaint, or within six (6) months of the receipt of the

information referred to in regulation 5(1)(f), whichever is later, the

Commissioner may decide to resolve the question in dispute on a

unilateral basis, without involving the competent authorities of the

other Member States concerned. In such case, he shall notify the

affected person and the competent authorities of the other Member

States concerned without delay.

(2) Following a resolution of the question in dispute by the

Commissioner or by the competent authority of any of the other

Member States concerned, the proceedings under these regulations

shall be terminated.

(1) An affected person that wishes to withdraw a Termination of

complaint shall simultaneously submit a written notification of proceedings

when complaint

withdrawal to the competent authorities of each one (1) of the Member is when

States concerned. Such notification shall terminate all proceedings in dispute

ceases to exist.

under these regulations with immediate effect.

(2) When the Commissioner receives such a notification he

shall inform the competent authorities of the other Member States

concerned of the termination of proceedings without delay.

(3) If for any reason a question in dispute ceases to exist, all

proceedings under these regulations shall terminate with immediate

effect and the Commissioner shall inform the affected person of this

state of affairs and of the general reasons therefore without delay.

(1) (a) Where the Commissioner and the competent Mutual

authorities of the other Member States concerned accept a complaint, agreement

procedure.

the Commissioner shall seek to resolve the question in dispute by

mutual agreement with the competent authorities of the other Member

States concerned within two (2) years starting from the last notification

of a decision of the competent authority of one (1) of the Member

States on the acceptance of the complaint.

(b) The said period of two (2) years may be

extended by up to one (1) year at the request of the competent

authority of another Member State concerned to the

Commissioner

Provided that such request is received by the

competent authorities of all the Member States concerned, and

the requesting competent authority provides written justification;

(c) The Commissioner may request an extension

referred to in paragraph (b) where he considers that the

circumstances of the case make such an extension necessary. In

making such a request, the Commissioner shall send a written

request with appropriate justification to all the competent

authorities of the other Member States concerned.

(2) Once the Commissioner has reached an agreement with the

competent authorities of the other Member States concerned as to how

to resolve the question in dispute within the period provided for in sub-

regulation (1), he shall, without delay, notify this agreement to the

affected person, as a decision that is binding on the Commissioner and

enforceable by the affected person, subject to the affected person

accepting the decision and renouncing the right to any other remedy,

where applicable

Provided that where proceedings regarding such other

remedies have already commenced, the decision shall only become

binding and enforceable once the affected person has provided

evidence to the Commissioner and to the competent authorities of the

other Member States concerned that action has been taken to terminate

those proceedings. Such evidence shall be provided not later than sixty

(60) days from the date on which such decision was notified to the

affected person. The Commissioner shall then implement the decision

without delay, irrespective of any time limits prescribed by Maltese

law.

(3) Where the competent authorities of the Member States

concerned have not reached an agreement on how to resolve the

question in dispute within the period provided for in sub-regulation

(1), the Commissioner shall inform the affected person indicating the

general reasons for the failure to reach an agreement.

(1) Upon a request made by the affected person, the

Commissioner shall take the necessary action for the setting up of an

Advisory Commission in accordance with regulation 13 where

(a) the complaint submitted by such affected person was

rejected by the Commissioner under regulation 7(2) or, where the

Commissioner has not rejected the complaint, the complaint was

rejected by the competent authority of at least one (1) of the

other Member States concerned under provisions of the national

law of that Member State corresponding to regulation 7(2); or

(b) the Commissioner and the competent authorities of

the other Member States concerned had accepted the complaint

that was submitted by the affected person but failed to reach an

agreement on how to resolve the question in dispute by mutual

agreement within the time limit provided for in regulation 10(1).

The functions and obligations of an Advisory Commission and

its members as provided for in these regulations shall be deemed to

form part of its terms of reference.

(2) The affected person may only make a request under

paragraph (a) of sub-regulation (1) if, in accordance with the laws of

Malta or any applicable national rules of the Member State whose

competent authority rejected the complaint in accordance with

provisions in the national law of that Member State that correspond to

regulation 7(2)

(a)

no appeal can be made;

(b)

no appeal is pending; or

(c) the affected person has formally renounced his right

of appeal.

The request shall include a declaration to this effect.

(3) The affected person shall make the request to the

Commissioner to set up an Advisory Commission in writing, not later

than fifty (50) days from the date of receipt of the notification under

regulation 7(1) or 10(3) or fifty (50) days from the date of delivery of

the decision by the relevant court or judicial body under regulation

7(4), as the case may be.

(4) The Commissioner shall take the necessary steps for the

setting up of the Advisory Commission by not later than one hundred

and twenty (120) days from the receipt of the request referred to in the

foregoing sub-regulations, and once the Advisory Commission is set

up, its Chairperson shall inform the affected person thereof without

delay.

(5) The Advisory Commission set up in the case of sub-

regulation (1)(a) shall adopt a decision on the acceptance of the

complaint within six (6) months from the date of its establishment. It

shall notify the competent authorities of its decision within thirty (30)

days of the adoption thereof.

(6) (a) Where the Advisory Commission set up in the case of

sub-regulation (1)(a) has confirmed that all of the requirements under

regulations 4 and 5 have been satisfied, the mutual agreement

procedure provided for in regulation 10 shall be initiated at the request

of the Commissioner or of the competent authority of any one (1) of

the other Member States concerned. Where the request is made by the

Commissioner, he shall notify the Advisory Commission, the

competent authorities of the other Member States concerned and the

affected person thereof. The period provided for in regulation 10(1)

shall start from the date of the notification of the decision taken by the

Advisory Commission of the acceptance of the complaint.

(b) Where none of the competent authorities of the

Member States concerned has requested the initiation of the

mutual agreement procedure as per paragraph (a) within sixty (60)

days of the date of the notification of the decision of the Advisory

Commission, the Advisory Commission shall provide an opinion

on how to resolve the question in dispute as provided for in

regulation 19(1). In such a case, for the purposes of regulation

19(1), the Advisory Commission shall be deemed to have been set

up on the date on which that sixty (60) day period expired.

(7) In the case of paragraph (b) of sub-regulation (1), the

Advisory Commission shall deliver an opinion on how to resolve the

question in dispute in accordance with regulation 19(1).

(1) If an Advisory Commission is not set up within the

period provided for in regulation 11(4), the relevant affected person

may apply to the Administrative Review Tribunal (national appointing

body) to set up the Advisory Commission.

(2) Where the Commissioner has failed to appoint at least one

(1) independent person of standing and a substitute, the affected

person may request the national appointing body to appoint an

independent person of standing and a substitute from the list referred

to in regulation 14

Provided that if more than one (1) affected person is

involved in the proceedings, a request to the Commissioner for the

appointment of at least one (1) independent person of standing and a

substitute may only be made by an affected person who is resident in

Malta.

(3) The appointment of the independent persons and their

substitutes under sub-regulations (1) or (2) shall be referred to the

national appointing body only after the end of the one hundred and

twenty (120) day period referred to in regulation 11(4), and within

thirty (30) days after the end of that period.

(1) The Advisory Commission set up in accordance with

regulation 11 shall have the following composition

(a)

one (1) Chairperson;

(b) one (1) representative of the competent authority of

each of the Member States concerned

Provided that on agreement between the competent

authorities, the number of such representatives may be increased

to two (2) for each competent authority; and

(c) one (1) independent person of standing, who shall be

appointed by the competent authority of each of the Member

States concerned from the list of independent persons of standing

nominated by the Member States

Provided that on agreement between the competent

authorities, the number of such persons appointed may be

increased to two (2) for each competent authority.

(2) The rules for the appointment of the independent persons of

standing shall be agreed by the Commissioner together with the

competent authorities of the other Member States concerned.

Following the appointment of the independent persons of standing, a

substitute shall be appointed for each of them according to the rules for

the appointment of the independent persons in cases where the

independent persons are prevented from carrying out their duties.

(3) Where the rules for the appointment of independent persons

of standing have not been agreed to in accordance with sub-regulation

(2), the appointment of such persons shall be carried out by drawing

lots.

(4) Except where the independent persons of standing have

been appointed by the national appointing body as provided in

regulation 12, or by the competent court or national appointing body of

another Member State as provided in the law of that other Member

State by means of provisions corresponding to regulation 12, the

Commissioner may object to the appointment of any particular

independent person of standing for any reason agreed in advance

between the competent authorities concerned or for any one (1) of the

following reasons

(a) that person belongs to or is working on behalf of one

of the tax administrations concerned or was in such a situation at

any time during the previous three (3) years;

(b) that person has, or has had, a material holding in or

voting right in, or is or has been an employee of or adviser to any

affected person concerned, at any time during the last five (5)

years prior to the date of his appointment;

(c) that person does not offer a sufficient guarantee of

objectivity for the settlement of the dispute or disputes to be

decided;

(d) that person is an employee with an enterprise that

provides tax advice or otherwise gives tax advice on a

professional basis, or was in such a situation at any time during a

period of at least three (3) years prior to the date of his

appointment.

(5) The Commissioner may request that a person of standing

who has been appointed in accordance with sub-regulation (2) or (3),

or his substitute, shall disclose any interest, relationship or any other

matter that is likely to affect that person's independence or impartiality

or that might reasonably create an appearance of bias in the

proceedings. For a period of twelve (12) months after the opinion of the

Advisory Commission was delivered, an independent person of standing

who is part of the Advisory Commission shall not be in a situation that

would have given cause to a competent authority to object to his

appointment as provided for in sub-regulation (4) had he been in that

situation at the time of appointment to that Advisory Commission.

(6) The representatives of the competent authorities and the

independent persons of standing appointed in accordance with sub-

regulation (1) shall elect a Chairperson from the list of persons

referred to in regulation 14. Unless the representatives of the

competent authority of each of the Member States concerned and the

independent persons of standing agree otherwise, the Chairperson

shall be a judge.

(1) For the purpose of the list of independent persons of

standing referred to in regulation 13, the Commissioner shall nominate

at least three (3) individuals who are competent and independent, and

who can act with impartiality and integrity.

(2) The Commissioner shall notify the Commission of the

names of the independent persons of standing whom he has nominated.

The Commissioner shall also provide the Commission with complete

and up-to-date information regarding those persons' professional and

academic background, their competence, their expertise and any

conflicts of interest that they may have. The Commissioner may

specify in the notification which of those persons may be appointed as

a Chairperson.

(3) The Commissioner shall inform the Commission of any

changes to the list of independent persons without delay.

(4) The Commissioner shall put in place procedures for

removing any person whom he has appointed from the list of

independent persons of standing if that person ceases to be

independent.

(5) Where, taking into consideration the relevant provisions of

this regulation, the Commissioner has reasonable cause to object to an

independent person of standing appointed by the competent authority

of a Member State remaining in the above mentioned list for reasons of

lack of independence, he shall inform the Commission and provide

appropriate evidence to support its concern.

(6) Where the Commissioner is informed by the Commission

of an objection to an independent person of standing appointed by him

and of supporting evidence, he shall within six (6) months take the

necessary steps to investigate the complaint, and shall decide whether

to retain or remove that person from the list. The Commissioner shall

then notify the Commission accordingly without delay.

(7) The list of independent persons of standing referred to in

regulation 13 shall consist of the independent persons of standing

nominated by the Commissioner in accordance with this regulation and

of all the other independent persons of standing nominated by the other

Member States concerned in accordance with their respective national

laws.

(1) The Commissioner may agree with the competent The Alternative

authorities of the other Member States concerned to set up an Dispute

Resolution

Alternative Dispute Resolution Commission instead of an Advisory Commission.

Commission to deliver an opinion on how to resolve the question in

dispute. The Commissioner may also agree with the competent

authorities of the other Member States concerned to set up an

Alternative Dispute Resolution Commission in the form of a

committee that is of a permanent nature, known as a "Standing

Committee".

(2) Except for the rules regarding the independence of its

members set out in regulations 13(4) and (5), the Alternative Dispute

Resolution Commission may differ regarding its composition and form

from the Advisory Commission. An Alternative Dispute Resolution

Commission may apply, where appropriate, any dispute resolution

processes or technique to solve the question in dispute in a binding

manner. As an alternative to the type of dispute resolution process

applied by the Advisory Commission, i.e. the independent opinion

process, any other type of dispute resolution process, including the

"final offer" arbitration process (otherwise known as "last best offer"

arbitration), can be agreed by the Commissioner under this regulation

together with the competent authorities of the other Member States

concerned and applied by the Alternative Dispute Resolution

Commission.

(3) The Commissioner shall agree on the Rules of Functioning

in accordance with regulation 16, together with the competent

authorities of the other Member States concerned.

(4) Regulations 17 and 18 shall apply to the Alternative

Dispute Resolution Commission unless otherwise agreed to in the

Rules of Functioning referred to in regulation 16.

(1) Within the one hundred and twenty (120) day period Rules of

provided for in regulation 11(4), the Commissioner shall notify the Functioning.

affected person with the following

(a) the Rules of Functioning for the Advisory

Commission or the Alternative Dispute Resolution Commission;

(b) the date by which the opinion on the resolution of the

question in dispute shall be adopted;

(c) references to any applicable legal provisions in

Maltese law and to any applicable agreements or conventions.

(2) The Rules of Functioning shall be signed by the

Commissioner together with the competent authorities of the other

Member States concerned. The Rules of Functioning shall provide in

particular

(a) the description and the characteristics of the question

in dispute;

(b) the terms of reference on which the competent

authorities of the Member States concerned agree as regards the

legal and factual questions to be resolved;

(c) the form of the dispute resolution body, which shall

be either an Advisory Commission or an Alternative Dispute

Resolution Commission, as well as the type of process for any

Alternative Dispute Resolution, if the process differs from the

independent opinion process applied by an Advisory

Commission;

(d)

the time frame for the dispute resolution procedure;

(e) the composition of the Advisory Commission or

Alternative Dispute Resolution Commission (including the

number and names of the members, details of their competence

and qualifications, and disclosing any conflicts of interest of the

members);

(f) the rules governing the participation of the affected

person(s) and third parties in the proceedings, exchanges of

memoranda, information and evidence, the costs, the type of

dispute resolution process to be used, and any other relevant

procedural or organisational matters;

(g) the logistical arrangements for the Advisory

Commission's proceedings and delivery of its opinion

Provided that if an Advisory Commission is set up to

deliver an opinion under regulation 11(1)(a), only the

information referred to in paragraphs (a), (d), (e) and (f) of this

sub-regulation shall be set out in the Rules of Functioning.

(3) Where the Rules of Functioning are incomplete or were not

notified to the affected person, Standard Rules of Functioning

established by the Commission in accordance with Council Directive

(EU) 2017/1852 of 10 October 2017 on tax dispute resolution

mechanisms in the European Union shall apply.

(4) Where the Commissioner has not notified the Rules of

Functioning to the affected person in accordance with sub-regulations

(1) and (2), or where the competent authorities of any one (1) of the

other Member States concerned have not notified the Rules of

Functioning to the affected person, the independent persons of standing

and the Chairperson shall complete the Rules of Functioning on the

basis of the standard rules referred to in sub-regulation (3) and shall send

them to the affected person within two (2) weeks from the date that the

Advisory Commission or Alternative Dispute Resolution Commission

was set up.

(5) Where the independent persons and the Chairperson have

not agreed on the Rules of Functioning or have not notified them to the

affected person, the affected person or affected persons may submit an

application to the Civil Court, First Hall, or to the competent court in

one (1) of the other Member States concerned in order to obtain an

order for the implementation of the Rules of Functioning.

(1) Except as provided in sub-regulation (2), and unless Costs of

the Commissioner has agreed otherwise with the competent authorities proceedings.

of the other Member States concerned, the following costs shall be

shared equally among the Member States concerned

(a) the expenses of the independent persons of standing,

which are to be an amount equivalent to the average of the usual

amount reimbursed to high ranking civil servants of the Member

States concerned; and

(b) the fees of the independent persons, where applicable,

which are to be limited to one thousand euro (€1,000) per person

per day for every day on which the Advisory Commission or

Alternative Dispute Resolution Commission meets.

(2) The Commissioner shall not bear any costs that are

incurred by the affected person.

(3)

Where the affected person has made

(a) a notification of withdrawal of complaint under

regulation 9 or under corresponding provisions of the national

law of any other Member State concerned; or

(b) a request under the provisions of regulation 11(1) or

under corresponding provisions of the national law of any other

Member State concerned following a rejection made under

regulation 10(1) or under corresponding provisions of the

national law of any other Member State concerned, and the

Advisory Commission has decided that the relevant competent

authorities were correct in rejecting the complaint,

and the competent authorities of the Member States concerned so

agree, all the costs referred to in sub-regulation (1)(a) and (b) shall

be borne by the affected person.

(1) For the purposes of the procedure referred to in

regulation 11, where the Commissioner so agrees with the competent

authorities of the other Member States concerned, the affected

person(s) may provide the Advisory Commission or Alternative

Dispute Resolution Commission with any information, evidence or

documents that may be relevant for the decision.

(2) The affected person(s) and the Commissioner shall provide

any information, evidence or documents upon request by the Advisory

Commission or Alternative Dispute Resolution Commission.

However, the Commissioner may refuse to provide information to the

Advisory Commission in any one (1) of the following cases, where

(a) obtaining the information requires carrying out

administrative measures that are against Maltese national law;

(b) the information cannot be obtained under Maltese

national law;

(c) the information concerns trade secrets, business

secrets, industrial secrets, professional secrets or trade processes;

(d)

the disclosure of the information is contrary to public

policy.

(3) Affected persons may, at their request and with the consent

of the Commissioner and the competent authorities of the other

Member States concerned, appear or be represented before an

Advisory Commission or Alternative Dispute Resolution Commission.

Affected persons shall appear or be represented before it upon request

by the Advisory Commission or Alternative Dispute Resolution

Commission.

(4)

The independent persons of standing or any other member

shall be subject to obligations of professional secrecy in relation to

information they receive in their capacity as members of an Advisory

Commission or Alternative Dispute Resolution Commission.

(5) Affected persons, and where applicable, their

representatives, shall undertake to treat any information (including

knowledge of documents) that they receive during such proceedings as

secret. The affected person and his representatives shall make a

declaration to this effect to the Commissioner and the competent

authorities of the other Member States concerned when so requested

during the proceedings.

(6) The provisions of the Professional Secrecy Act and of Cap. 377.

article 257 of the Criminal Code shall apply in respect of any breach of Cap. 9.

the secrecy obligations imposed under this regulation.

(7) The Commissioner shall inform the Commission of any

measures taken in order to penalise any breach of secrecy obligation

provided for in this regulation.

(1) An Advisory Commission or Alternative Dispute The opinion of

Resolution Commission shall deliver its opinion to the Commissioner the

Commission or

and to the competent authorities of the other Member States concerned Alternative

Dispute

no later than six (6) months after the date on which it was set up. Resolution

Where the Advisory Commission or Alternative Dispute Resolution Commission.

Commission considers that the question in dispute is such that it would

need more than six (6) months to deliver an opinion, this period may

be extended by three (3) months. The Advisory Commission or

Alternative Dispute Resolution Commission shall inform the

Commissioner, the competent authorities of the other Member States

concerned and the affected persons of any such extension.

(2) The Advisory Commission or Alternative Dispute

Resolution Commission shall base its opinion on the provisions of the

applicable agreement or convention referred to in regulation 2(2) as

well as on any applicable national rules.

(3) The Advisory Commission or Alternative Dispute

Resolution Commission shall adopt its opinion by a simple majority of

its members. Where a majority cannot be reached, the vote of the

Chairperson shall determine the final opinion. The Chairperson shall

communicate the opinion of the Advisory Commission or Alternative

Dispute Resolution Commission to the Commissioner and to the

competent authorities of the other Member States concerned.

(1) The Commissioner shall agree with the competent Final decision.

authorities of the other Member States concerned on how to resolve

the question in dispute within six (6) months of the notification of the

opinion of the Advisory Commission or Alternative Dispute

Resolution Commission.

(2) The Commissioner together with the competent authorities

of the other Member States concerned may take a decision which

deviates from the opinion of the Advisory Commission or Alternative

Dispute Resolution Commission. However, if the Commissioner fails

to reach an agreement as to how to resolve the question in dispute, the

Commissioner shall be bound by that opinion.

(3) The Commissioner shall notify the final decision on the

resolution of the question in dispute to the affected person without

delay. In the absence of such notification within thirty (30) days of the

decision having been taken, the affected person shall be entitled to file

an application in the Civil Court, First Hall requesting the Court to

order the Commissioner to provide a copy of the final decision without

further delay.

(4) The final decision shall be binding on the Commissioner

and shall not constitute a precedent.

(5) The final decision shall be implemented subject to the

affected person(s) accepting the final decision and renouncing the right

to any domestic law remedy within sixty (60) days from the date when

the final decision was notified, where applicable.

(6) Except where the relevant court or other judicial body of a

Member State concerned decides according to its applicable national

rules on remedies and applying the criteria under regulation 13 that

there was lack of independence, the final decision shall, where

applicable, be implemented under the Income Tax Acts and the

taxation under those Acts shall be amended accordingly, irrespective

of any time limits prescribed by Maltese law.

(7) Where the Commissioner fails to implement the final

decision, the affected person shall be entitled to present an application

to appeal as if the Commissioner’s failure were an assessment issued

under the Income Tax Management Act and as if the Commissioner

has refused an objection to an assessment duly filed by the affected

person, and the relevant provisions of that Act relating to appeals shall

apply mutatis mutandis

Provided that the time within which an appeal may be made

in accordance with article 35(1) of the Income Tax Management Act

shall run from the expiration of six (6) months from the date on which

the affected person is served with a copy of the final decision.

(1) The fact that the action that gave rise to a question in Interaction with

dispute has become final under the Income Tax Acts shall not prevent national

proceedings and

the affected persons from having recourse to the procedures provided derogations.

for in these regulations.

(2) The submission of the question in dispute to the mutual

agreement procedure or to the dispute resolution procedure under

regulations 10 and 11 respectively shall not prevent the Commissioner

from initiating or continuing judicial proceedings or proceedings for

administrative and criminal penalties in relation to the same matters.

(3) Affected persons may have recourse to the remedies

available to them under the national law of the Member States

concerned. However, where the affected person has commenced

proceedings to seek such a remedy, the terms of periods referred to in

regulations 8 and 10(1) respectively shall commence from the date on

which a judgement delivered in those proceedings has become final or

on which those proceedings have otherwise been definitively

concluded or where the proceedings have been suspended.

(4) Where a decision on a question in dispute delivered by the

Administrative Review Tribunal or the Court of Appeal has been

rendered final and conclusive in terms of article 38 of the Income Tax Cap. 372.

Management Act

(a) before an agreement has been reached by the

competent authorities of the Member States concerned under the

mutual agreement procedure under regulation 10 on that question

in dispute, the Commissioner shall notify the competent

authorities of the other Member States concerned of that decision

and that the procedure is to be terminated as from the date of

such notification;

(b) before the affected person has made a request under

regulation 11(1), the provisions of regulation 11(1) do not apply

if the question in dispute had remained unresolved during the

whole of the mutual agreement procedure under regulation 10, in

which case the Commissioner shall inform the other competent

authorities of the Member States concerned of the effect of that

decision;

(c) the dispute resolution process under regulation 11 is

to be terminated if the decision was rendered at any time after an

affected person has made a request under regulation 11(1) but

before the Advisory Commission or the Alternative Dispute

Resolution Commission has delivered its opinion to the

competent authorities of the other Member States concerned, in

conformity with regulation 19, in which case the Commissioner

is to inform the competent authorities of the other Member States

concerned and the Advisory Commission or the Alternative

Dispute Resolution Commission of the effect of that decision.

(5) The submission of a complaint as provided under

regulation 4 shall put an end to any other ongoing proceedings under

the mutual agreement procedure or dispute resolution procedure under

an agreement or convention that is being interpreted or applied in

relation to the relevant question in dispute. Such other ongoing

proceedings concerning the relevant question in dispute shall come to

an end with effect from the date of the first receipt of the complaint by

any one (1) of the competent authorities of the Member States

concerned.

(6) By way of derogation from regulation 11, the

Commissioner may deny access to the dispute resolution procedure

under that regulation in cases where penalties were imposed under the

Income Tax Acts in relation to the adjusted income or capital for tax

fraud, wilful default and gross negligence. Where judicial or

administrative proceedings were commenced that could potentially

lead to such penalties, and these proceedings are being conducted

simultaneously with any of the proceedings referred to in these

regulations, the Commissioner may stay the proceedings under these

regulations as from the date of acceptance of the complaint until the

date of the final outcome of those proceedings.

(7) The Commissioner may deny access to the dispute

resolution procedure under regulation 11 on a case-by-case basis

where a question in dispute does not involve double taxation. In such a

case, the Commissioner shall inform the affected person and the

competent authorities of the other Member States concerned without

delay.

(1)

Where the affected person is either

(a)

an individual; or

(b) not a large undertaking and does not form part of a

large group (both as defined in Directive 2013/34/EU of the

European Parliament and of the Council),

the affected person may submit the complaints, replies to a request

for additional information, withdrawals and requests specified in

regulations 4, 5(2), 9 and 11(1), respectively or in provisions of the

law of any Member State concerned that correspond to those

regulations ("communications"), by way of derogation from those

provisions, only to the competent authority of the Member State in

which the affected person is resident.

(2) When the Commissioner receives any such communication,

he shall, within two (2) months, notify the competent authorities of all

the other Member States concerned at the same time.

(3) Once a notification of any such communication has been

made by the competent authority that receives it to the other competent

authorities of the Member States concerned, the affected person shall

be deemed to have submitted the communication to all the Member

States concerned as of the date of such notification.

(4) When the Commissioner receives from an affected person

referred to in sub-regulation (1) additional information requested

under regulation 5(2), he shall transmit a copy to the competent

authorities of all the other Member States concerned at the same time.

(5) Once a submission has been made to the competent

authorities of all Member States of a copy of additional information

received by the Commissioner as aforesaid or received by the

competent authority of any other Member State concerned in terms of

provisions of the law of that Member State corresponding to regulation

5(2), it shall be deemed that additional information has been received

by all Member States concerned as at the date of such receipt of

information.

(1) The Commissioner may agree with the competent Publicity.

authorities of the other Member States concerned to publish the final

decisions referred to in regulation 20 in their entirety, subject to the

consent of each one (1) of the affected persons concerned.

(2) Where the competent authorities or affected person

concerned do not consent to publishing the final decision in its

entirety, the Commissioner shall publish an abstract of the final

decision. That abstract shall contain a description of the issue and the

subject matter, the date, the tax periods involved, the legal basis, the

industry sector, and a short description of the final outcome. It shall

also include a description of the method of arbitration used. The

Commissioner shall send the information to be published in

accordance with this sub-regulation to the affected person before its

publication. The affected person may, no later than 60 days from the

receipt of such information, request the Commissioner not to publish

information that concerns any trade, business, industrial or professional

secret, information that concerns a trade process, or information that is

contrary to public policy.

(3) The Commissioner shall notify the information to be

published in accordance with sub-regulation (2) to the Commission

without delay.

(4) The final decision, whether in its entirety or an abstract

thereof, shall be published on the website of the Office of the

Commissioner for Revenue.

€1.98