Imputation systems for relieving double taxation : an EU perspective : the Maltese imputation system

Abstract

This study was prompted by the fact that developments in the case law of the European Court of Justice have occurred in relation to the E.C Treaty fundamental freedoms which have led to the virtual disappearance of full imputation systems within the European Community. This prompted the question: Is the same to happen in Malta, despite the recent restructuring of the Maltese tax system? The First chapter of the thesis therefore necessarily examines the general position under EC Law with regard to the general order of EC law, an overview of the application of the treaty provisions in respect of state aid to direct tax matters and the evolving concept of 'harmful tax competition'. Mention is also made of the pre-2007 preferential tax regimes which Malta operated before the Commission requested their termination in August 2003. The next step was to examine the underlying theory informing the full imputation system and its alternatives with a view to providing an insight as to why the imputation system has increasingly been viewed as incompatible with an increasingly globalised economy, a view which is of heightened importance within the European bloc's single market. The case law of the ECJ is then examined with particular reference to the cases which have been viewed as constituting direct attacks upon imputation systems and which led to many Member States abandoning their imputation systems in favour of split-rate or exemption systems. Once the context within which the Maltese full imputation system continues to operate had been adequately set, the current Maltese system is then examined in the light of the above as relevant to the specific issue of double taxation in relation to the taxation of dividends - as the central issue of concern from the national perspective of inward investment and from the 'European' perspectives of the Treaty freedoms, state aid and harmful tax competition. The thesis argues that the Maltese system is overall beneficial to Malta in key respects and also largely compatible with EC law as it stands. However, some aspects of our systemare open to use by detractors who point to Malta as an unfair player in the investment attraction stakes. It is argued that some relatively minor changes might be considered in order to allay such attacks, while preserving the essence of our system barring any major revision, not currently or forseeably contemplated, of the Treaties.