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Tan Hooi Beng of International Tax Leader of Deloitte Malaysia: "It is thus a matter of time before Malaysia moves to the white list. As such, there is no need for anyone to push the panic button."

KUALA LUMPUR: Malaysia inclusion into EU tax watch list is nothing to panic about, says Tan Hooi Beng, International Tax Leader of Deloitte Malaysia.

In a statement on Friday, he explained Malaysia adopts a territorial tax regime, where only Malaysian-sourced income is within the ambit of its tax net.

That said, banking, insurance, or sea and air transport sectors are taxed on a worldwide basis.

On Oct 5, 2021, the European Commission officially announced updates to the European Union (EU) grey list.

“Malaysia, together with Hong Kong, Costa Rica, Qatar, and Uruguay are in the list. In reference to Annex II, the grey list are countries that have yet to comply with international tax standards but have made the commitment to reform tax policies,” he pointed out.

As a result of the foreign source income exemption regimes review, the EU considers Malaysia's territorial sourced tax regime harmful.

The EU has granted Malaysia a deadline of 31 December 2022 to amend its regime, and it is understood that Malaysia has agreed to do so.

As a result of Malaysia's willingness to respond to the EU's concerns, defensive measures by the EU will be suspended, subject to the passing of those amendments.

Certain defensive measures that may be applied by EU member states includes non-deductibility of costs, controlled foreign company rules, withholding tax measures, among others.

Review of territorial source regime

Based on the EU's guidance, foreign source income exemption regimes that apply on a territorial basis are not inherently problematic.

However, the EU is concerned where such regimes create situations of double non-taxation. In particular, they are concerned with the non-taxation of passive income in the form of interest or royalties where the income recipient has no substantial economic activity.

Deloitte’s observation

Malaysia should not be hasty in amending its tax regime and should continue its good practice of consulting relevant stakeholders.

A robust review is essential including analysing the regimes of countries that are not on the list or have moved out from the list.

Take for example Singapore’s territorial and remittance basis regimes, and Hong Kong’s proposed legislative amendments targeting corporations with no substantial local economic activity who are receiving passive income that is not chargeable to tax in Hong Kong, are something for Malaysia to ponder.

It was reported that Hong Kong will continue to adopt the territorial source principle.

If Malaysia decides to amend its territorial source tax regime, it is interesting to note that the timing coincides with that of the BEPS 2.0 Pillar Two project (Global Minimum Tax) i.e. Jan 1, 2023.