Taxation of partnerships : a Maltese perspective

Abstract

The tax treatment of partnerships, which are not treated as companies for Maltese income tax purposes, receives little attention and is rarely, if at all, the subject of disputes. The lack of comprehensive legislation, case law or official guidelines from the Maltese tax authorities gives rise to various gaps in partnership taxation which add to the complexity of partnerships, both in a domestic and, to a greater extent, in an international context. This creates an opportunity for an in-depth analysis of the various tax aspects of partnerships and their partners having a connection with Malta by virtue of their residence and/or domicile. This study reveals conflicting views among selected Maltese tax specialists and tax practitioners on various aspects of partnership taxation, particularly in relation to the extent to which partnerships should be considered as flow-through entities for income tax purposes. This study also identifies some of the current practices adopted which deviate from the requirements of the law, specifically in relation to the obligation of partnerships to furnish a return of income and the tax treatment of partnerships not established for the carrying on of a trade, business, profession or vocation. Ambiguities also exist in other areas of partnership taxation, such as the categorisation of foreign partnerships for income tax purposes and the inclusion, or otherwise, of partnerships set up under the Civil Code in the definition of a partnership. The limited use of partnerships as business vehicles in Malta, especially when compared to companies, cannot be solely attributable to these gaps in partnership taxation. Furthermore, it does not necessarily mean that uncertainties in partnership taxation are not resolved in practice. Nonetheless, it is felt that clear and comprehensive legislation would surely bring more certainty and predictability to the tax treatment of partnerships. This study therefore concludes with a number of recommendations on how partnership taxation could be better regulated.