Malaysia Permits a taxpayer to secure an advance tax ruling in many fact patterns. The advance ruling process is important to U.S. businesses doing business in Malaysia as well as for Malaysian businesses doing business in the United States because the two countries have no income tax treaty except for a shipping and air transportation treaty signed April 18, 1989. The Malaysian prime minister announced the advance tax ruling concept as part of the 2007 budget, effective January 1, 2007. The Inland Revenue Board Malaysia (IRBM) promulgated the specific advance rulings guideline procedure on February 14, 2008.1
As we shall see, Malaysia’s advance tax ruling process puts taxpayers in an uncertain position from a transfer pricing standpoint. At the outset, Malaysia’s advance process does not encompass bilateral advance pricing agreements. Further, Malaysia’s advance pricing process possibly might not encompass unilateral advance pricing agreements. Nevertheless, a matched unilateral advance pricing agreement, if permitted by the Malaysian tax authorities, would be an appropriate transfer pricing alternative for Malaysian businesses doing business in the United States and for U.S. businesses doing business in Malaysia.
As a general matter, Malaysia’s advance ruling procedure is designed to interpret and apply the income tax provisions pursuant to Malaysia’s primary tax law, the Income Tax Act 1967.2 Any taxpayer can request such an advance ruling. A foreign party can request such a ruling if the party is represented by local counsel.3 The IRBM intends that the issuance of an advance ruling will achieve these objectives:4
The Income Tax Act 1967 empowers the Director General Inland Revenue (DGIR) to provide an advance ruling on behalf of the taxpayer.5 Upon the taxpayer’s request, the DGIR can rule as to how the provisions of the act would apply to the person and to the arrangement for which the taxpayer seeks a ruling. The Income Tax Act 1967 empowers the minister of finance to provide for the scope and procedure as to the advance ruling and to provide fees associated with the advance ruling.6 The advanced ruling procedure is retroactive to January 1, 2007.7
The DGIR issues the advance ruling to the taxpayer interpreting how the IRBM is to apply a proposed arrangement pursuant to the Income Tax Act 1967. The scope of the advance ruling procedure in Malaysia is narrow, limited only to the class of activities that constitute “proposed arrangements.”8 This chapter examines the scope of “proposed arrangement” factors.
As a general matter, an advance ruling is binding on the taxpayer.9 In contrast, the DGIR can withdraw the ruling under specific circumstances.10 The advance ruling comprises these facets:11
The advance ruling does not serve as a precedent for other cases. The ruling automatically lapses if the taxpayer fails to carry out the arrangement stipulated in the ruling by the end of the ruling’s time period. The ruling is subject to any qualifications stated in the ruling, but otherwise the ruling is binding on the DGIR.12 The guidelines enumerate four situations in which the advance ruling will not be binding in the DGIR:13
The advance ruling guideline provides specific terms that apply through the guideline in various contexts.18 The guideline defines the term “arrangement” in a broad manner to include “any scheme, contract, agreement, plan, or undertaking,” whether such an arrangement is enforceable or not.19 Such an arrangement includes all the steps and transactions that carry the arrangement into effect. The guideline requires, for the DGIR to approve the ruling, that the taxpayer propose an arrangement that the taxpayer seriously contemplates.20 The guideline defines the term “seriously contemplated” to mean a “concerted effort” and a defined course of action, whether this action is unilateral or otherwise, to undertake the arrangement in the near future. The guideline fails to define the term “near future.”
The prerequisite for requesting an advance ruling is that the issues that would be addressed in the ruling require a determination of the income tax laws. The advance ruling guideline cautions that an advance ruling request is not to seek information as to what the law already provides or a question of fact.21 For example, an advance ruling request is not designed to render a decision as to whether a person is a resident.
The prerequisite for requesting an advance ruling is that the taxpayer “seriously contemplates” the proposed arrangement for implementation in the near future.22 The taxpayer is precluded from requesting the advance ruling on a whim or before the taxpayer has adequate documentation concerning the transaction contemplated. The taxpayer must put forward relevant documentation as evidence to indicate that the taxpayer seriously contemplated the arrangement.
Malaysia basic income tax law itself permits a taxpayer to obtain an advance ruling, indicating how any provision in the tax law would apply to the taxpayer’s proposed arrangement.23 The DGIR will issue an advance ruling only if the taxpayer seriously contemplates the arrangement and the arrangement exists in fact.
The DGIR can provide other restrictions of the advance ruling procedure. The DGIR will not provide an advance ruling if the matter sought by the taxpayer pertains to a provision in the Income Tax Act 1967 that would authorize or require the DGIR or the Minister of Finance to undertake these activities:
The DGIR has no obligation to respond favorably to each advance ruling. The DGIR will reject requests to provide an advance ruling in these ten circumstances:24
In addition to the preceding ten situations in which the DGIR will reject requests to provide an advance ruling, the DGIR may generally decline an application for an advance ruling in these four circumstances:35
The DGIR has the power to decline to make an advance ruling or not make an advance ruling. In such a case, the DGIR is to notify the applicant in writing at the earliest possible time. The DGIR is to provide the reasons why the DGIR did not make an advance ruling or declined to make an advance ruling.40
The advance ruling application procedure addresses these specific processes:41
As a general matter, any person may apply for an advance ruling as to how a provision of the Income Tax Act 1967 would apply to the person, or the prospective person, as the case may be.42 In general, any person may apply for an advance ruling as to any particular arrangement that falls under the purview of the advance ruling. The advance ruling process is available to both companies already in existence and companies that are not yet in existence, but the application process differs between them to some extent.
A taxpayer that is already in existence must apply for the advance ruling on its own behalf.43 For example, the taxpayer includes a company that has already been incorporated in Malaysia. The taxpayer, at its option, may employ the services of an approved tax agent or a certified revenue lawyer, both of whom practice their profession in Malaysia. Such an approved tax agent or a certified revenue lawyer can complete the advance ruling application form and prepare the advance ruling application for submission to the DGIR on behalf of the client. The person responsible for the advance ruling application form must sign the form. The responsible person includes, by way of example, a company director or a partner in a partnership. Note that this process is optional on the part of a business incorporated in Malaysia but mandatory on the part of the foreign enterprise.
Two or more persons can jointly make an advance ruling application. The joint application, by way of example, includes a group of companies in the same group, and includes partners in a partnership.44 The “person responsible” for each participant to the joint ruling application must sign the return before the entity submits its return to the DGIR.
Two scenarios limit the taxpayer’s application for the advance ruling:
In either of these two scenarios, the representative of the taxpayer must be an approved tax agent or a certified revenue lawyer where such person practices its profession in Malaysia.45 A representative acting on behalf of the taxpayer must forward a letter of authority that authorizes the representative to act on the taxpayer’s behalf. The representative must fill out the details in the application.
The taxpayer applying for an advance ruling must furnish the next information to the DGIR:46
The DGIR needs to receive sufficient information from the applicant to complete its review in granting an advance ruling. The DGIR has the right to request further relevant information or to carry out an on-site inspection in instances where the applicant provided insufficient information.55 The DGIR also has the right to waive any requirements it would otherwise need in filling out the application. The DGIR can waive these requirements if it is the DGIR’s opinion that it would be unreasonable to request information for which the applicant has no means of providing or information for which the applicant has no access.56
A person who has submitted an advance ruling application can withdraw the application before the DGIR issues its advance ruling. A person seeking to withdraw its advance ruling application can do so by forwarding such a notice to the DGIR in writing.57 A person who withdraws its application for an advance ruling remains liable to pay all fees incurred up to the time the DGIR receives a notice of withdrawal.58 A person seeking to withdraw its advance ruling application must acknowledge this requirement in filing the withdrawal request.59
The guideline on advance rulings provides that the DGIR is to notify the applicant for the advance ruling that the DGIR has in fact issued such a ruling. In addition, the DGIR is to notify the applicant as to the additional fees the applicant must pay in relation to the advance ruling. The DGIR will issue the advance ruling to the applicant only when the applicant pays all fees payable.60
The guideline on advance rulings provides that the DGIR will issue an advance ruling to the applicant that specifies:61
The DGIR, in developing the advance ruling, might request additional information from the applicant. The DGIR, at its option, can issue an advance ruling based on assumptions it makes if the applicant cannot provide the necessary information. The DGIR is to make such assumptions that are appropriate, but the DGIR can decline to make an advance ruling if the applicant provides insufficient information.68
The advance ruling process expects that the applicant and the IRBM will undertake prior consultations. The purpose of the collaborative process is to clarify that the applicant provides an advance ruling application.69 The IRBM is not obligated to disclose the decisions it makes within the applicant’s advance ruling process at any time before the DGIR issues the advance ruling.
The recipient of an advance ruling may apply in writing to extend the application of the ruling beyond the taxable year indicated in the advance ruling.70 The taxpayer must file a request to extend the period for which the advance ruling is applicable, doing so within three months prior to the end of the period or taxable year specified in the advance ruling or at any other period the DGIR approves. The arrangement might be essentially the same as the arrangement specified in the advance ruling. In the event that the arrangement is essentially the same, the applicant may request to the DGIR that it apply the same interpretation of the Income Tax Act 1967 prospectively to another period or to another taxable year.
The guideline on advance rulings contains an exculpation clause for typographical errors and/or other minor errors. Such errors, if they were to occur in the DGIR’s advance ruling issued to the applicant, do not adversely affect the advance ruling or make the advance ruling void if these errors do not in any way alter the way the provision of the Income Tax Act 1967 applies in the advance ruling.71
A taxpayer that files an advance ruling application is still obligated to comply with the obligations under the Income Tax Act 1967. For example, the taxpayer is obligated to file its tax return within the stipulated tax frame for compliance before the taxpayer filed its advance ruling application.72 The DGIR’s issuance of an advance ruling to an applicant does not change any powers the DGIR has to make or amend tax assessments under the Income Tax Act 1967.
When the DGIR issues an advance ruling, that advance ruling is final. The advance ruling is final, whether it is applicable to the taxpayer or not. The DGIR will not entertain any correspondence or inquiry after it issues the advance ruling.73 The taxpayer cannot appeal the ruling. However, the taxpayer has the choice not to carry out the proposed arrangement if an advance ruling is disadvantageous to the taxpayer. The taxpayer must comply with the advance ruling if the taxpayer chooses to effectuate the proposed arrangement. Although the advance ruling is final, the taxpayer can object to the tax treatment under the normal Income Tax Act 1967 procedures.74
A taxpayer that receives an advance ruling has an obligation to disclose the following information in the preparation of its annual tax return:75
The advance ruling guideline fails to address certain timing issues. For example, the disclosure provisions fail to address issues such as the fact that the taxpayer must reflect the existence of the ruling in the taxable year in which the DGIR issues the ruling, but the provision does not indicate whether the taxpayer must reflect advance rulings in prior years. The DGIR can enforce the disclosure provision by penalties that it can impose for noncompliance with the advance ruling.
The DGIR retains the right to withdraw an advance ruling at a time after it issues the ruling to the applicant. The DGIR can withdraw the advance ruling request because of changes in the tax laws based on differing court decisions.79 Nevertheless, the withdrawal provisions are open-ended, permitting the taxpayer to withdraw the request under a wide variety of circumstances independent of court decisions.
The DGIR is to effectuate the withdrawal of an advance ruling issued to an applicant by means of issuing a notice of withdrawal to the applicant. The DGIR is prohibited from withdrawing the advance ruling on a prospective basis and beyond a date at which the taxpayer is reasonably expected to receive a notice of withdrawal.80
A taxpayer might have effectuated the arrangement provided for in the advance ruling before the DGIR withdraws the ruling. In the event that the taxpayer has proceeded accordingly, the taxpayer can follow the advance ruling until the end of the period stated in the ruling. However, the taxpayer might not have effectuated the arrangement at the time that the DGIR issues the taxpayer a notice of withdrawal. The arrangement then is prospective, and the taxpayer cannot obtain a tax advantage from the advance ruling.81 The proceeding withdrawal process enables an applicant that undertakes an arrangement in reliance of an advance ruling may bind the DGIR for the reminder of the period. However, the DGIR will not be bound by the advance ruling if the DGIR withdraws an advance ruling before the applicant enters into the arrangement.
When the DGIR issues an advance ruling to an applicant, this ruling will be binding on the applicant and on the DGIR,82 subject to the provisions subject to the binding nature of an advance ruling83 and the withdrawal of an advance ruling by the DGIR.84 An advance ruling ceases to apply in situations in which any provision of the Income Tax Act 1967 repeals or amends the subject of the ruling. This cessation takes place if the repeal or amendment of that provision in the Income Tax Act 1967 alters the way in which the tax law applies. The cessation of the advance ruling takes place from the date of repeal or the amendment becomes effective.
An applicant must pay a fee to secure an advance ruling from the DGIR. The fees will be based on each applicant’s requesting an advance ruling, including for each applicant requesting the advance ruling.85 The DGIR imposes these fees on the applicant as a debt due to the government of Malaysia.
The fee structure begins with an application fee of RM500 ($150 USD) upon application and is nonrefundable. This fee takes into account the amount of time the DGIR would need to accede to the request.86 In addition, the DGIR imposes a further fee of RM150 ($45) per hour or part thereof after the first four hours, including the time that DGIR spends in consulting with the applicant.87 Moreover, the taxpayer must reimburse the DGIR for its professional advice the DGIR obtains with consent of the applicant88 and for any other reasonable costs the DGIR incurs.89 In any event, the DGIR will at all times ensure that it makes every effort to minimize the fees payable.
An applicant that withdraws its application for an advance ruling remains liable for all fees incurred on behalf of the applicant up to the time in which the applicant receives a letter from the DGIR acknowledging the withdrawal.90 The DGIR may waive any fees payable by an applicant for an advance ruling request, except for the nonrefundable application fee of RM500.91 The DGIR can provide the waiver at its own discretion.
The DGIR will normally address an advance ruling request in the order in which the request is received. The DGIR intends that it will issue the advance ruling within a stipulated time frame of 60 days from the date the applicant submits the application. The DGIR expects to meet this 60-day time period provided the applicant submits the relevant information together with the request and that the DGIR does not need further consultations with the applicant.92 The DGIR is to advise the applicant if any unusual delay is foreseen.
All information in the advance ruling is confidential. The DGIR will not publish the advance ruling in any form.93 There may be situations in which there are similarities of common concern including the applicant and other taxpayers. The DGIR may produce a public ruling to address these issues in the event that there are issues of common concern.
Notes
1. LHDN.01/35/42/51/122/3, February 14, 2008.
2. Guideline on Advance Rulings, section 1.
3. Guideline on Advance Rulings, section 10.4; Guideline on Advance Rulings, section 1.
4. Guideline on Advance Rulings, section 1.
5. Guideline on Advance Rulings, section 2.1.
6. Guideline on Advance Rulings, section 2.2.
7. Guideline on Advance Rulings, section 1, section 2.3.
8. Guideline on Advance Rulings, section 5.2, section 6.2.
9. Guideline on Advance Rulings, section 4.1.
10. Guideline on Advance Rulings, section 13.
11. Guideline on Advance Rulings, section 1.
12. Guideline on Advance Rulings, section 4.1.
13. Guideline on Advance Rulings, section 4.2.
14. Guideline on Advance Rulings, section 4.2a.
15. Guideline on Advance Rulings, section 4.2b.
16. Guideline on Advance Rulings, section 4.2c.
17. Guideline on Advance Rulings, section 4.2d.
18. Guideline on Advance Rulings, section 5.
19. Guideline on Advance Rulings, section 5.1.
20. Guideline on Advance Rulings, section 5.2.
21. Guideline on Advance Rulings, section 6.1.
22. Guideline on Advance Rulings, section 6.2.
23. Income Tax Act 1967, section 138B; Guideline on Advance Rulings, section 6.3.
24. Guideline on Advance Rulings, section 7.
25. Guideline on Advance Rulings, section 7a.
26. Guideline on Advance Rulings, section 7b.
27. Guideline on Advance Rulings, section 7c.
28. Guideline on Advance Rulings, section 7d.
29. Guideline on Advance Rulings, section 7e.
30. Guideline on Advance Rulings, section 7f.
31. Guideline on Advance Rulings, section 7g.
32. Guideline on Advance Rulings, section 7h.
33. Guideline on Advance Rulings, section 7i.
34. Guideline on Advance Rulings, section 7j.
35. Guideline on Advance Rulings, section 8.
36. Guideline on Advance Rulings, section 8a.
37. Guideline on Advance Rulings, section 8b.
38. Guideline on Advance Rulings, section 8c.
39. Guideline on Advance Rulings, section 8d.
40. Guideline on Advance Rulings, section 9.
41. Guideline on Advance Rulings, section 10.
42. Guideline on Advance Rulings, section 10.1.
43. Guideline on Advance Rulings, section 10.2.
44. Guideline on Advance Rulings, section 10.3.
45. Guideline on Advance Rulings, section 10.4.
46. Guideline on Advance Rulings, section 10.5.
47. Guideline on Advance Rulings, section 10.5a.
48. Guideline on Advance Rulings, section 10.5b.
49. Guideline on Advance Rulings, section 10.5c.
50. Guideline on Advance Rulings, section 10.5d.
51. Guideline on Advance Rulings, section 10.5e.
52. Guideline on Advance Rulings, section 10.5f.
53. Guideline on Advance Rulings, section 10.5g.
54. Guideline on Advance Rulings, section 10.5h.
55. Guideline on Advance Rulings, section 10.6.
56. Guideline on Advance Rulings, section 10.7.
57. Guideline on Advance Rulings, section 10.8.
58. Guideline on Advance Rulings, section 15.2.
59. Guideline on Advance Rulings, section 10.8.
60. Guideline on Advance Rulings, section 11.1.
61. Guideline on Advance Rulings, section 11.2.
62. Guideline on Advance Rulings, section 11.2a.
63. Guideline on Advance Rulings, section 11.2b.
64. Guideline on Advance Rulings, section 11.2c.
65. Guideline on Advance Rulings, section 11.2d.
66. Guideline on Advance Rulings, section 11.2e.
67. Guideline on Advance Rulings, section 11.2f.
68. Guideline on Advance Rulings, section 11.3.
69. Guideline on Advance Rulings, section 11.4.
70. Guideline on Advance Rulings, section 11.5.
71. Guideline on Advance Rulings, section 11.6.
72. Guideline on Advance Rulings, section 11.7.
73. Guideline on Advance Rulings, section 12.1.
74. Income Tax Act 1967, section 99.
75. Guideline on Advance Rulings, section 12.2.
76. Guideline on Advance Rulings, section 12.2a.
77. Guideline on Advance Rulings, section 12.2b.
78. Guideline on Advance Rulings, section 12.2c.
79. Guideline on Advance Rulings, section 13.1.
80. Guideline on Advance Rulings, section 13.2.
81. Guideline on Advance Rulings, section 13.3.
82. Guideline on Advance Rulings, section 14.
83. Guideline on Advance Rulings, section 4.
84. Guideline on Advance Rulings, section 13.
85. Guideline on Advance Rulings, section 15.1.
86. Guideline on Advance Rulings, section 15.1a.
87. Guideline on Advance Rulings, section 15.1b.
88. Guideline on Advance Rulings, section 15.1ci.
89. Guideline on Advance Rulings, section 15.1cii.
90. Guideline on Advance Rulings, section 15.2.
91. Guideline on Advance Rulings, section 15.3.
92. Guideline on Advance Rulings, section 16.
93. Guideline on Advance Rulings, section 17.
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