JADUAL KEDUA
[Subperaturan 7(1)]
(1)
Butiran
(2)
Peruntukan Standard
(3)
Tarikh berkaitan 1.
Subperenggan C(6) Seksyen III
30 Jun 2017
2.
Perenggan D Seksyen III:
(a)
berhubung dengan suatu Akaun Individu Sedia Ada yang merupakan suatu Akaun Nilai Tinggi
(b)
berhubung dengan suatu Akaun Individu Sedia Ada yang merupakan suatu Akaun Nilai Rendah
30 Jun 2018
30 Jun 2019
3.
Perenggan A Seksyen V
30 Jun 2017 4.
Perenggan B Seksyen V:
(a)
berhubung dengan suatu Akaun Entiti Sedia Ada yang mempunyai agregat baki akaun atau nilai akaun yang melebihi USD250,000.00
(b)
berhubung dengan suatu Akaun Entiti Sedia Ada yang tidak melebihi USD250,000.00
30 Jun 2017
30 Jun 2017
5.
Subperenggan E(1) Seksyen V
(a)
berhubung dengan suatu Akaun Entiti Sedia Ada dengan agregat baki akaun atau nilai akaun yang
30 Jun 2017
P.U. (A) 20 21
(1)
Butiran
(2)
Peruntukan Standard
(3)
Tarikh berkaitan melebihi USD250,000.00
(b)
tarikh siap kajian semula
30 Jun 2019 6.
Subperenggan E(2) Seksyen V
30 Jun 2017 7.
Subperenggan B(9)(a) Seksyen VIII
1 Januari 2017 8.
Subperenggan B(9)(d) Seksyen VIII
1 Januari 2018 9.
Subperenggan C(17)(f)(ii) Seksyen VIII
1 Julai 2017
Dibuat 5 Februari 2018
[Perb. 0.6869/47(SJ.14)(SK.6); LHDN.01/10.5-1/64-28; PN(PU2)491/III]
DATUK SERI JOHARI BIN ABDUL GHANI
Menteri Kewangan Kedua
P.U. (A) 20 22
LABUAN BUSINESS ACTIVITY TAX ACT 1990
LABUAN BUSINESS ACTIVITY TAX (AUTOMATIC EXCHANGE OF FINANCIAL
ACCOUNT INFORMATION) REGULATIONS 2018
IN exercise of the powers conferred by paragraph 21(1)(b) of the Labuan Business
Activity Tax Act 1990 [Act 445], the Minister makes the following regulations:
Citation and commencement 1.
(1)
These regulations may be cited as the Labuan Business Activity Tax
(Automatic Exchange of Financial Account Information) Regulations 2018.
(2)
These Regulations are deemed to have come into operation on 1 July 2017.
Interpretation 2.
(1) In these Regulations—
“New Account” means a Financial Account maintained by a Reporting Financial
Institution opened on or after 1 July 2017, unless it is treated as a Preexisting Account under paragraph (b) of the definition of “Preexisting Account”;
“Lower Value Account” means a Preexisting Individual Account, which is not a
High Value Account, with an aggregate balance or value that does not exceed
USD1,000,000.00 as of 30 June 2017;
“High Value Account” means a Preexisting Individual Account with an aggregate balance or value that exceeds USD1,000,000.00 as of 30 June 2017, 31 December 2017
or 31 December of any subsequent year;
“Preexisting Account” means—
(a)
a Financial Account maintained by a Reporting Financial Institution as of 30 June 2017; or
P.U. (A) 20 23
(b) any Financial Account of an account holder, regardless of the date such
Financial Account was opened, if—
(i)
the account holder also holds a Financial Account that is a
Preexisting Account with the Reporting Financial Institution (or with a Related Entity within the same jurisdiction as the
Reporting Financial Institution) under paragraph (a) of this definition;
(ii)
the Reporting Financial Institution (and, if applicable, the Related
Entity within the same jurisdiction as the Reporting Financial
Institution) treats both the Financial Accounts referred to in paragraph (a) and subparagraph (b)(i) , and any other Financial
Accounts of the account holder that are treated as Preexisting
Accounts under this paragraph as a single Financial Account for the purposes of satisfying the standards of knowledge requirements set forth in paragraph A of Section VII of the
Standard, and for purposes of determining the balance or value of any of the Financial Accounts when applying any of the account thresholds;
(iii)
in respect of a Financial Account that is subject to AML/KYC procedures, the Reporting Financial Institution is permitted to satisfy such AML/KYC procedures for the Financial Account by relying upon the AML/KYC procedures performed for the
Preexisting Account described in paragraph (a) of this definition;
and
(iv)
the opening of the Financial Account does not require the provision of new, additional or amended customer information by the account holder other than for purposes of the Standard;
P.U. (A) 20 24
“Reporting Financial Institution” means any Labuan entity which is a Financial
Institution;
“Arrangements” means—
(a)
the Convention on Mutual Administrative Assistance in Tax Matters;
(b)
the Multilateral Competent Authority Agreement on Automatic Exchange of Financial Account Information; and
(c)
any arrangements with participating jurisdictions to improve international tax compliance through—
(i)
any bilateral or multilateral tax convention;
(ii)
any bilateral or multilateral competent authority agreements; or
(iii)
any tax information exchange agreement;
“Standard” means the Common Reporting Standard set out in the Standard for
Automatic Exchange of Financial Account Information in Tax Matters approved by the
Council of the Organisation for Economic Co-Operation and Development as amended from time to time.
(2) Words and expressions which are not defined in these Regulations shall have the same meaning as assigned to them in the Standard.
Application 3.
(1)
These Regulations shall have effect for and in connection with the implementation of the Standard for the purpose of giving effect to the Arrangements.
(2) These Regulations shall apply to any Labuan entity which is a Financial
Institution as defined in Section VIII of the Standard.
P.U. (A) 20 25
(3)
For the purposes of clarity, the following are Non-Reporting Financial
Institutions:
(a)
a Governmental Entity, an International Organisation or a Central
Bank, other than with respect to a payment that is derived from an obligation held in connection with a commercial financial activity of a type engaged in by a Specified Insurance Company, Custodial
Institution, or Depository Institution;
(b)
a Broad Participation Retirement Fund, a Narrow Participation
Retirement Fund, a Pension Fund of a Governmental Entity, an
International Organisation or a Central Bank;
(c)
a Qualified Credit Card Issuer which satisfies the following requirements:
(i)
the Financial Institution is a Financial Institution solely because it is an issuer of credit cards that accepts deposits only when a customer makes a payment in excess of a balance due with respect to the card and the overpayment is not immediately returned to the customer; and
(ii)
beginning on or before 1 July 2017, the Financial
Institution implements policies and procedures either to prevent a customer from making an overpayment in excess of USD50,000.00, or to ensure that any customer overpayment in excess of USD50,000.00 is refunded to the customer within sixty days, in each case applying the rules set forth in paragraph C of Section VII of the Standard for account aggregation and currency translation. For this purpose, a customer overpayment does not refer to credit balances to the extent of disputed charges but does include credit balances resulting from merchandise returns;
P.U. (A) 20 26
(d)
any other Entity that presents a low risk of being used to evade tax, has substantially similar characteristics to any of the Entities described in paragraphs (a), (b) and (c), and is defined in domestic law as a Non-Reporting Financial Institution, provided that the status of such Entity as a Non-Reporting Financial Institution does not frustrate the purposes of the Standard;
(e)
an Exempt Collective Investment Vehicle; and
(f)
a trust to the extent that the trustee of the trust is a Reporting
Financial Institution and reports all information required to be reported pursuant to Section I of the Standard with respect to all
Reportable Accounts of the trust.
Application of Standard 4.
For the purposes of these Regulations, the Standard shall be applied consistently with the Commentaries on the Standard.
Due diligence obligation 5.
(1)
Every Reporting Financial Institution which is not a Non-Reporting
Financial Institution shall identify the Reportable Account from the Financial Account maintained by the Reporting Financial Institution by applying the due diligence procedure as specified in Sections II to VII of the Standard.
(2)
Every Reporting Financial Institution shall establish, maintain and document the due diligence procedure referred to in subregulation (1).
(3)
The Financial Account referred to in subregulation (1) shall not include any Excluded Account—
(a)
as defined in subparagraphs C(17)(a) to (f) of Section VIII of the
Standard; and
P.U. (A) 20 27
(b)
as defined in subparagraph C(17)(g) of Section VIII of the
Standard and listed as an Excluded Account in the First Schedule.
(4)
An account is treated as a Reportable Account beginning as of the date it is identified as a Reportable Account pursuant to the due diligence procedures described in Sections II to VII of the Standard and, information in respect of a
Reportable Account shall be reported annually in the calendar year following the year to which the information relates.
Financial
Account treated as other than Reportable Account or not
Reportable Account 6.
(1)
For the purposes of regulation 5, a Reporting Financial Institution may—
(a)
treat a Financial Account held by individual beneficiaries of a
Cash Value Insurance Contract or an Annuity Contract as other than a Reportable Account in the circumstances described in paragraph B of Section VII of the Standard; and
(b)
treat a Financial Account that is a member's interest in a Group
Cash Value Insurance Contract or Group Annuity Contract as a
Financial Account that is not a Reportable Account until the date on which an amount is payable to the employee, certificate holder or beneficiary, if the Financial Account meets the following requirements:
(i)
the Group Cash Value Insurance Contract or Group Annuity
Contract is issued to an employer and covers twenty-five or more employees or certificate holders;
(ii)
the employees or certificate holders are entitled to receive any contract value related to their interest and to name beneficiaries for the benefit payable upon the employee's death; and
P.U. (A) 20 28
(iii)
the aggregate amount payable to any employee, certificate holder or beneficiary does not exceed USD1,000,000.00.
(2)
In this regulation—
“Group Annuity Contract” means an Annuity Contract under which the obligees are individuals who are affiliated through an employer, a trade association or labour union, or other association or group;
“Group Cash Value Insurance Contract” means a Cash Value Insurance Contract that—
(a)
provides coverage on individuals who are affiliated through an employer, a trade association or labour union, or other association or group; and
(b)
charges a premium for each member of the group (or member of a class within the group) that is determined without regard to the individual health characteristics other than age, gender and smoking habits of the member (or class of members) of the group.
Determination of date and calendar year 7.
(1)
In applying the due diligence procedures, the relevant dates for the purposes of the provisions of the Standard specified in column (2) of the Second
Schedule shall be the dates corresponding against it as specified in column (3).
(2)
For the purposes of subparagraph C(6) Section III of the Standard and paragraphs A and B and subparagraph E(2) Section V of the Standard the following periods shall be treated as separate calendar years:
(a) 1 January 2017 to 30 June 2017; and
(b) 1 July 2017 to 31 December 2017.
P.U. (A) 20 29
Balance or value of account 8.
(1)
An account with a balance or value that is negative is deemed to have a balance or value equal to nil.
(2)
In determining the balance or value of an account denominated in a currency other than United States dollars, the institution shall translate the relevant
United States dollars threshold amount described in the Standard or in these
Regulations into the other currency by reference to the spot rate of exchange on the date for which the institution is determining the threshold amounts.
Entity account 9.
A Financial Account held by an individual as a partner of a partnership is deemed to be an entity account.
Modification of due diligence procedure 10.
(1)
A Reporting Financial Institution may apply, for a calendar year—
(a)
the residence address procedure, as described in subparagraph B(1) of Section III of the Standard, to a Lower Value
Account;
(b)
the due diligence procedures for a High Value Account as described in paragraph C of Section III of the Standard, to a Lower
Value Account; or
(c)
paragraphs A to C of Section V of the Standard to determine whether a Preexisting Entity Account is subject to the due diligence procedures described in Section V of the Standard.
(2)
Subject to regulation 11, a Reporting Financial Institution may apply, for a calendar year, the due diligence procedures for a New Account described in Section IV or VI of the Standard, to a Preexisting Account.
P.U. (A) 20 30
(3)
Subject to regulation 11, for the period beginning 1 July 2017
until 4 February 2018 a Reporting Financial Institution may apply the due diligence procedures for a Preexisting Account described in paragraph C of Section I and,
Section III or Section V, of the Standard to a New Account.
(4)
In relation to New Entity Account, for the purposes of determining whether a controlling person of a Passive NFE is a Reportable Person, a Reporting
Financial Institution may only rely on a self-certification by either the account holder or the controlling person.
Condition for modification of due diligence procedure 11.
(1)
Where a Reporting Financial Institution applies the due diligence procedures for
New
Account to
Preexisting
Account in accordance with subregulation 10(2), the procedures described in paragraph C of Section I, paragraph A of Section III, subparagraph B(1) of Section III and paragraph A of Section V of the
Standard shall apply to the Preexisting Account.
(2)
Where a Reporting Financial Institution applies the due diligence procedures for
Preexisting
Account to
New
Account in accordance with subregulation 10(3), the provisions of these Regulations and the Standard applicable to a New Account shall continue to apply to the New Account.
(3)
A Reporting Financial Institution shall not—
(a)
apply the due diligence procedures for New Account to Preexisting
Account unless the institution applies the procedures to all
Preexisting Accounts it maintains or a clearly identifiable group of
Preexisting Accounts; and
(b)
apply the due diligence procedures for Preexisting Account to a
New Account unless the institution applies the procedures to all
New Accounts it maintains or a clearly identifiable group of New
Accounts.
P.U. (A) 20 31
Related Entity 12.
(1)
For the purposes of the general reporting requirements in Section I of the
Standard and application of the due diligence procedures described in Sections II to VII of the Standard, an Entity is a “Related Entity” of another Entity if—
(a)
either Entity controls the other Entity;
(b)
the two Entities are under common control; or
(c)
the two
Entities are
Investment
Entities described in subparagraph A(6)(b) of Section VIII of the Standard which are under common management and such management fulfils the due diligence obligations of such Investment Entities.
(2)
The control referred to in paragraphs (1)(a) and (b) includes direct or indirect ownership of more than fifty percent of the vote and value in an Entity.
Reporting obligation 13.
(1)
A Reporting Financial Institution shall, in respect of the calendar year 2017 and every following calendar year, furnish an information return to the Director
General on or before 30 June of the year following the calendar year to which the return relates setting out the information required to be reported as described in paragraphs A and B of Section I of the Standard, subject to paragraphs C to E in Section I of the
Standard, in relation to every Financial Account identified as a Reportable Account that is maintained by the Reporting Financial Institution at any time during a calendar year.
(2)
For the purposes of subregulation (1), each Reporting Financial
Institution shall report the account balance or value, including in the case of a Cash
Value Insurance Contract or Annuity Contract, the Cash Value or surrender value, as at the end of the relevant calendar year or, if the account was closed during such year, the closure of the account with respect to each Reportable Account maintained by such
Reporting Financial Institution.
P.U. (A) 20 32
(3)
If a Reporting Financial Institution applies the due diligence procedures described in regulation 5 for a calendar year and no account is identified as a
Reportable Account, the Reporting Financial Institution shall furnish to the Director
General an information return which provides that the Reporting Financial Institution maintains no such Reportable Accounts in respect of that year.
(4)
A Reporting Financial Institution is not exempt from furnishing the information as required under these Regulations by the reason that the Reporting
Financial Institutions has the duty to not collect, use or disclose such information, whether such duty is imposed by the written law, the rules of law, any contract or any rules of professional disciplinary procedure.
Special provision for reporting of Preexisting Individual Accounts 14.
For the purposes of subregulation 13(1), a Reporting Financial Institution shall furnish an information return to the Director General in relation to every Preexisting
Individual Account identified by the Reporting Financial Institution as a Reportable
Account that is maintained by the Reporting Financial Institution on or before the following dates:
(a)
31 July 2018 for a High Value Account; and
(b)
31 July 2019 for a Low Value Account.
Furnishing of information return 15.
An information return shall be furnished on an electronic medium or by way of electronic transmission in the format as may be determined by the Director General.
Use of information by Director General 16.
For the avoidance of doubt, all information provided or obtained under these
Regulations may be used by the Director General for any purposes related to the administration of the Act and the Income Tax Act 1967 [Act 53].
P.U. (A) 20 33
Reportable jurisdiction 17.
“Reportable Jurisdiction” stated in subparagraph D(4) of Section VIII of the
Standard shall be—
(a)
for the purposes of applying the due diligence procedure specified in
Sections II to VII of the Standard, any jurisdiction other than Malaysia;
and
(b)
for the purposes of the reporting obligation as specified in Section I of the
Standard, those jurisdictions contained in a list of Reportable Jurisdictions determined and published by the Director General.
Records 18.
(1)
Every Reporting Financial Institution shall keep and retain in safe custody records that the Reporting Financial Institution obtains or creates for the purpose of complying with these Regulations, including self-certifications and records of documentary evidence.
(2)
Every Reporting Financial Institution required by these Regulations to keep and retain in safe custody records who does so electronically shall retain them in an electronically readable format for the retention period referred to in subregulation (4).
(3)
Every Reporting Financial Institution that obtains or creates records in a language other than English shall, upon request of the Director General, provide an
English translation.
(4)
Every Reporting Financial Institution that is required to keep and retain in safe custody records that the Reporting Financial Institution obtains or creates under these Regulations shall retain those records for a period of at least seven years following—
(a)
in the case of a self-certification, the last day on which a related
Financial Account is opened; and
P.U. (A) 20 34
(b)
in any other case, the end of the last calendar year in respect of which the record is relevant.
Service providers 19.
(1)
A Reporting Financial Institution may appoint a third party as its agent to carry out the duties and obligations imposed on it under these Regulations.
(2)
Where a third party is appointed by a Reporting Financial Institution in accordance with subregulation (1)—
(a)
the Reporting Financial Institution shall, at all times, have access to and be able to produce, where so requested by the Director
General, the records and documentary evidence used to identify and report on Reportable Accounts; and
(b)
the Reporting Financial Institution is responsible for any failure of that third party to carry out the duties and obligations of the
Reporting Financial Institution and regulations 20 and 23 shall apply to the Reporting Financial Institution notwithstanding that—
(i)
the actions were the action of that third party; or
(ii)
the failure to act was the failure by that third party to act.
Powers of Director General 20.
(1)
The Director General may exercise all the powers vested in him under the
Act to administer and enforce compliance with the provisions of the Arrangements and these Regulations.
(2)
The Director General may, by notice, require a Financial Institution to furnish to him within a time specified in the notice with such information including copies of any relevant books, records or other documents as the Director General may
P.U. (A) 20 35
reasonably require for any purpose relating to the administration or enforcement of these Regulations.
(3)
The Director General may at all times have full and free access to enter any premises or place of business of a Financial Institution for the purposes of—
(a)
administrating and implementing compliance with the provisions of the Arrangements and these Regulations; and
(b)
examining the procedures put in place by the Financial Institution for the purposes of ensuring compliance with that Financial
Institution's obligations under these Regulations.
(4)
The Director General may make extracts from or copies of all or any part of the books, records or other documents or other material made available to him or require that copies of books, records or other documents or other material be made available to him for any purpose relating to the administration or enforcement of these Regulations.
Incorrect information return 21.
Any person who—
(a)
makes an incorrect information return by omitting the information required to be provided in accordance with these Regulations, on behalf of himself or another person; or
(b)
gives any incorrect information in relation to any information required to be provided in accordance with these Regulations, on behalf of himself or another person, shall, unless he satisfies the court that the incorrect information return or incorrect information was made or given in good faith, be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a
P.U. (A) 20 36
term not exceeding two years or to both.
Failure to comply with Regulations 22.
(1)
Any person who fails to comply with these Regulations shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding two years or to both.
(2)
Where a person has been convicted of an offence under subregulation (1), the court may make a further order that the person shall comply with the relevant provision of these Regulations under which the offence has been committed within thirty days or such other period as the court deems fit, from the date the order is made.
Anti-avoidance 23.
If the Director General has reason to believe that any person has entered into any arrangements or engages in a practice which has the direct or indirect effect of—
(a)
relieving any person from any liability which has arisen or which would otherwise have arisen to furnish to the Director General an information return;
(b)
evading or avoiding any obligation which is imposed or would otherwise have been imposed on any person under these Regulations; or
(c)
hindering or preventing the operation of these Regulations in any respect, the Director General may, without prejudice to such validity as it may have in any other respect for any other purpose, disregard or vary the arrangement or the practice and make such adjustments as he thinks fit with a view to counteracting the whole or any part of any such direct or indirect effect of the arrangement or the practice.
Special provision for Passive NFE
24.
(1)
Subject to subregulation (3), for the purposes of determining that an
Entity is a Passive NFE with one or more Controlling Persons who are Reportable
P.U. (A) 20 37
Persons under subparagraph D(2) of Section V and subparagraph A(2) of Section VI of the Standard, a Financial Institution is taken not to be a Passive NFE if—
(a)
the Financial Institution is an Investment Entity under subparagraph A(6)(b) of Section VIII of the Standard;
(b)
the Financial Institution is not a Participating Jurisdiction Financial
Institution; and
(c)
the Financial Institution would be a Participating Jurisdiction
Financial Institution if the jurisdictions declared to be committed jurisdictions under subregulation
(2)
were
Participating
Jurisdictions.
(2)
The Director General may declare one or more jurisdictions to be committed jurisdictions in a published list or in any other manner as he deems appropriate.
(3)
For the purposes of subregulation (1), a Financial Institution shall be taken not to be a Passive NFE for the years 2017 to 2019.
FIRST SCHEDULE
[Paragraph 5(3)(b)]
EXCLUDED ACCOUNTS
For the purposes of the Standard, Excluded Accounts are as follows:
(a)
a depository account which is a dormant account (other than an Annuity
Contract)—
(i)
with a balance that does not exceed USD1,000.00;
P.U. (A) 20 38
(ii)
where the account holder has not initiated a transaction with regard to the account or any other account held by the account holder with the
Reporting Financial Institution in the previous three years;
(iii)
where the account holder has not communicated with the Reporting
Financial Institution regarding the account or any other account held by the account holder with the Reporting Financial Institution in the previous six years; and
(iv)
in relation to a Cash Value Insurance Contract, where the Reporting
Financial Institution has not communicated with the account holder regarding the account or any other account held by the account holder with the Reporting Financial Institution in the previous six years; or
(b)
a securities account which is a dormant account under rule 26.10 of the Rules of
Bursa Malaysia Depository Sdn Bhd.
SECOND SCHEDULE
[Subregulation 7(1)]
(1)
Item
(2)
Provisions of the Standard
(3)
Relevant date 1.
Subparagraph C(6) of Section III
30 June 2017 2.
Paragraph D of Section III:
(a)
in relation to a Preexisting Individual Account that is a High Value Account
(b)
in relation to a Preexisting Individual Account that is a Lower Value Account
30 June 2018
30 June 2019 3.
Paragraph A of Section V
30 June 2017
4.
Paragraph B of Section V:
P.U. (A) 20 39
(1)
Item
(2)
Provisions of the Standard
(3)
Relevant date
(a)
in relation to a Preexisting Entity Account that has an aggregate account balance or value that exceeds
USD250,000.00
(b) in relation to a Preexisting Entity Account that does not exceed USD250,000.00 30 June 2017
30 June 2017
5.
Subparagraph E(1) of Section V
(a)
in relation to a Preexisting Entity Account with an aggregate account balance or value that exceeds USD250,000.00
(b)
the completion date for review
30 June 2017
30 June 2019 6.
Subparagraph E(2) of Section V
30 June 2017 7.
Subparagraph B(9)(a) of Section VIII
1 January 2017 8.
Subparagraph B(9)(d) of Section VIII
1 January 2018 9.
Subparagraph C(17)(f)(ii) of Section VIII
1 July 2017
Made 5 February 2018
[Perb. 0.6869/47(SJ.14)(SK.6); LHDN.01/10.5-1/64-28; PN(PU2)491/III]
DATUK SERI JOHARI BIN ABDUL GHANI
Second Minister of Finance