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,Determining whether the source ofincome is Malaysian or foreign canbe complicated and contentious asmany factors need to be considered, says Harvey & Associates' Harvindar Singh (pic)

GLOBALISATION is knitting separate national economies into a single world economy.

In the current pandemic, the heightened use of online platforms has given rise to increased borderless transactions.

Malaysian taxation is levied on income earned from Malaysia since Malaysian tax is imposed on a territorial basis.

Malaysian tax is not imposed on income earned overseas, except for Malaysian companies in the shipping and air transport, insurance and banking industries in which case Malaysian taxes are imposed on their worldwide income.

Also, where the income earned overseas is incidental to a Malaysian employment or it is attributable to a place of business in Malaysia, it is subject to Malaysian tax.

Cross-border transactions can be broadly categorised into inbound and outbound transactions.LHDN logo

Inbound transactions

The tax rules and treatment for different types of income earned by foreign enterprises from Malaysia can be quite complicated and each stream of income (business profits, interest, royalties, dividends etc) needs to be looked at separately.

A foreign company selling goods to Malaysian customers from overseas is not carrying on business in Malaysia and not subject to Malaysian income taxes.

Similarly, non-residents performing services from overseas for Malaysian parties would not be subject to Malaysian income taxes (service tax considerations need to be taken into account though).

However, if the non-resident party performs services in Malaysia, Malaysian income tax will apply by the imposition of withholding tax on such income (10% under the Malaysian Income Tax Act, 1967 but may be reduced under Double Tax Agreements (DTA) signed by Malaysia with various countries).

Further, if the foreign enterprise is deemed to be carrying on business in Malaysia by virtue of various rules (as found in the Double Tax Agreements for example), then the foreign enterprise would need to file its income tax returns in Malaysia (with the withholding tax mechanism in place in case the foreign enterprise does not file the income tax return).

Malaysian withholding tax is also imposed on other payments to non-residents like interest, royalties, commissions, public entertainers’ fees, rental of equipment or other moveable assets and contract payments.

With the widespread use of technology and digital services offered by foreign providers such as Google, Amazon, Facebook, Zoom etc, the question arises as to whether the payments made are for services or royalty.

If it is for services performed in Malaysia, then withholding tax applies.