Malaysia

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Find legal, tax and practice information for Malaysia, and search for branches, firms and members in the jurisdiction. If you have any comments on the report please contact [email protected]
*Updated July 2020*
Editorial Board
- Chua Wei Min TEP (lead editor), ZICO Trust
- Farah Deba Sofian, Wong Lu Peen & Tunku Alina
New developments
On 11 October 2019, the 2020 Budget 2020, themed ‘Shared prosperity: Sustainable and inclusive growth towards a high-income economy’ was tabled in Parliament. Some of the key highlights and initiatives of the Budget include:
- the definitive abolishment of goods and services tax and prevalence of the sales and services tax;
- the introduction of a rent-to-own scheme, open to purchases of a first home worth up to MYR500,000 whereby, after a rental period of up to five years, the applicant has the option to purchase the relevant house at a fixed price when the rental agreement is signed;
- the introduction of a 5G Ecosystem Development grant worth MYR50 million; and
- the introduction and extension of incentives with a focus on foreign direct investment (FDI) and green technology to further one of the four main thrusts in the Budget: 'to drive economic growth in the new economy and digital era'.
The Budget has brought about a number of legislative changes. Reforms in law have been or are being carried out and these include:
- Amendments to the Stamp Act 1949:
- Stamp duty rates on transfer of property exceeding MYR1 million have been increased from three per cent to four per cent.
- 100 per cent stamp duty exemption on the instrument of transfer and loan agreement for the purchase of a first residential home from housing developers priced up to MYR300,000.
- Amendments to the Labuan Business Activity Tax Act 1990:
- Labuan entities will no longer be entitled to a flat MYR20,000 tax rate.
- All Labuan entities are allowed to carry on activities in Malaysian ringgit and/or with Malaysian residents and will still fall under the scope of the Labuan tax regime.
- New substance requirements for licensed and holding companies in Labuan.
- The list of substantial activity requirements has been updated to include Labuan entities that carry out administrative, accounting and legal services.
- Changes have been made to the minimum requirements for full-time employees and annual operating expenditure (OPEX) for relevant Labuan entities.
- The Non-Deductibility Rules for relevant Labuan entities have been revised, effective 1 January 2019.
- Amendments to the Malaysian Anti-Corruption Commission Act 2009:
- Corporate liability introduced for corruption offences with severe penalties imposed upon conviction. The penalties that directors, officers and management will be exposed to, upon conviction, include a maximum fine of 10 times the sum of gratification involved, or MYR1 million, whichever is higher, a maximum jail term of 20 years or both.
- If the commercial organisation could prove that it had adequate procedures in place to prevent the corrupt conduct of its associated persons, it will amount to an absolute defence similar to the UK Bribery Act 2010. To assist commercial organisations to employ fundamental measures to minimise the risk of corruption, the Guidelines on Adequate Procedures was launched on 10 December 2018.
- Amendments to the Service Tax Act 2018:
- Effective 1 January 2020, service tax shall be charged and levied on any digital service provided by foreign registered person (FRP) to any consumer in Malaysia.
- The service tax rate is now 6 per cent.
- It is mandatory for any foreign service provider who provide a total value of digital service to a consumer in Malaysia exceeding MYR50,000 per year to be registered as a FRP.
- ‘Digital service’, as defined under the Service Tax (Amendment) Act 2019 means any service that is delivered or subscribed over the internet or other electronic network and which cannot be obtained without the use of information technology and where the delivery of the service is essentially automated.
- Amendments to Income Tax Act 1967:
- Resident individuals who have chargeable income exceeding MYR2 million will be taxed at 30 per cent;
- The fixed rate for non-resident individuals is increased from 28 per cent to 30 per cent;
- Individuals and companies are allowed to donate up to 10 per cent of their aggregate income (previously 7 per cent for individuals) and be eligible for tax deductions.
- Amendments to Real Property Gains Tax 1976:
- For real property gain tax (RPGT) treatment, the base year for asset acquisition has been revised to 1 January 2013 for assets acquired before 1 January 2013, as compared to the previous base year of 1 January 2000.
- RPGT for disposals of Malaysian real property in the sixth year and thereafter by all disposers has increased by 5 per cent.
- Disposals by trustees are presently chargeable for RPGT.
- Exposure Draft on Licensing Framework for Digital Banks issued by Bank Negara Malaysia (the central bank of Malaysia):
- The draft outlines the proposed framework for the licensing of five digital banks to offer conventional and Islamic banking products and services in Malaysia.
- Digital banks would be required to comply with the requirements under the Financial Services Act 2013 or Islamic Financial Services Act 2013, including relevant requirements that comprise, among others, standards on prudential, business conduct and consumer protection, as well as on anti-money laundering and terrorism financing.
Quick links
- Legal system
- Inheritance and succession
- Estate planning
- Taxation
- Residence and domicile
- Other relevant information
Legal system
The supreme law of the country is the Federal Constitution of Malaysia, a written document. The judiciary is composed of the Federal Court, the Court of Appeal, the High Courts, Sessions Courts and Magistrates’ Courts. Malaysia’s judiciary is independent, with judicial power vested in the High Court in Malaya and the High Court in Sabah and Sarawak, which are headed by their respective chief judges. The Federal Court and Court of Appeal have exclusive jurisdiction to determine appeals. The Chief Justice is the head of the judiciary.
In Sabah and Sarawak, native courts exist to regulate native law or custom. At state level, Syariah (Malay spelling for Shari’a) courts regulate Islamic law among Muslims.
Inheritance and succession
Succession
Key legislative statutes with regard to succession planning include:
- Small Estates (Distribution) Act 1955.
- Distribution Act 1958.
- Intestate Succession Ordinance 1960.
- Inheritance (Family Provision) Act 1971.
- Probate and Administration Act 1959.
- Wills Act 1959.
- Trustee Act 1949.
- Public Trust Corporation Act 1995.
- Islamic Family Law (Federal Territories) Act 1984.
Additionally, there are various Islamic family law enactments for the other states in Malaysia.
Family law and defined inheritance rules
If a deceased person left a will, on death, the distribution of their estate will follow testacy laws, and the appointed executor will just need to obtain a Grant of Probate from the relevant high court.
Whereas if a deceased person dies without leaving a will, their assets are distributed according to the rules of intestacy as laid down in the Distribution Act 1958 for West Malaysia and Sarawak and the Intestate Succession Ordinance 1968 for Sabah, provided the estate is valued at less than MYR2 million only. The intestacy laws enable property to pass to survivors according to the rules of intestacy but these rules do not operate as thriftily as a proper will. Both Muslims and non-Muslims must appoint an administrator for the estate by applying to the court to issue letters of administration authorising the person or persons named to administer the deceased person’s estate in accordance with the relevant statutes.
i) Non-Muslim
Generally, the estate will be distributed among the deceased’s immediate family: surviving parents(s), spouse, and issue(s). A person’s issue includes their children and any descendants of children who predecease them. The distribution among the family is shown below:
- If the deceased dies leaving parents only, but no spouse and issue, the parents receive the whole estate.
- If the deceased dies leaving spouse only, but no parent and issue, the spouse receives the whole estate.
- If the deceased dies leaving issue only,but no spouse and parents, the issue receive the whole estate.
- If the deceased dies leaving parents and spouse, but no issue, the parents and spouse receive one-half each.
- If the deceased dies leaving spouse and issue, but no parents, the spouse receives one-third and the issue receive two-thirds.
- If the deceased dies leaving parents and issue, but no spouse, the parents receive one-third and the issue receive two-thirds.
- If the deceased dies leaving parents, spouse and issue, the parents and spouse each receive one-quarter, and the issue receive one-half.
- If a person dies leaving no parents, spouse and issue, their estate will be held on trust for the following persons in order of priority (in equal shares:)
- Brothers and sisters.
- Grandparents.
- Uncles and aunts.
- Great grandparents.
- Great grand uncles and grand aunts.
- Where a person dies leaving no parents, spouse, issue, and any of the above family members, the whole estate goes to the government.
ii) Muslim
Whether or not a Muslim left a will prior to their death, their estate must be distributed according to the Shari'a rule of distribution, Faraid Law, unless express consent of the legal heirs has been obtained. The rule of bequest in Islam is that a Muslim can only bequeath up to one-third of the estate to non-legal heirs.
If the will purports to bequeath more than one-third of the estate, the bequests may be reduced proportionally such that the aggregate will not exceed one-third. That said, if all the legal heirs voluntarily agree, a testator’s will that bequests more than one-third of the estate will be valid.
Probate process
Grant of Probate (with a will):
- Obtain original death certificate, original will, a copy of the executor’s NRIC and residential address of executor.
- Executor applies from the court for probate with list of assets and beneficiaries.
- Probate obtained within three to six months (depending on locality).
- Executor distributes assets, after payment of debts and other statutory obligations according to the will.
Letter of administration (without a will):
- Obtain original death certificate.
- All lawful beneficiaries under intestacy choose administrator(s).
- Other lawful beneficiaries renounce their rights.
- Administrator finds two sureties who provide security equivalent to the value of the deceased’s gross estate.
- Administrator applies to the court for letters of administration with list of assets and lawful beneficiaries.
- Letters of administration usually obtained within six to 12 months.
- Administrators pay debts and distribute assets, according to Distribution Act 1958. Distribution of immovable assets however, is subject to court's approval.
Mental capacity
The Malaysian court has certain powers over the properties and affairs of a person who is considered mentally incapacitated under the Mental Health Act 2001, including the disposal of properties for the purposes of, among others, payment of the mentally incapacitated person's debts, and expenses for future maintenance of the mentally incapacitated person and their family.
Estate planning
Use of trusts in estate planning
Discretionary trusts and fixed trusts are widely used for estate planning and succession planning.
The living trust concept is also being used to carve out an individual’s assets from their estate to achieve certain objectives. The living trust is a civil-law instrument for wealth planning. It is a type of gift created during the lifetime of the settlor that remains active thereafter. Essentially, the settlor appoints a trustee or declares himself as a trustee to hold the property in trust for the beneficiaries. This instrument permits the settlor to retain complete control of the trust property during his lifetime, and enables the beneficiary to fully benefit from the trust property as stipulated in the Trust Deed. The validity of a living trust under civil law has also been legally recognised to be applicable to Muslims (such as in the case of TM Feroze Khan & Ors v Meera Hussain TM Mohamed Mydin [2006] 3 CLJ 616) as one of the estate planning instruments in Malaysia.
Use of foundations in estate planning
Foundations are recognised in Malaysia in the form of a company limited by guarantee or an incorporated trustee under the Trustees (Incorporation) Act 1952. Of note is the Labuan Foundation, which is a statutory creature under the Labuan Foundations Act 2010 . These are generally no different from foundations found in other jurisdictions: it is a separate legal entity that holds assets with the objective of managing the assets for the benefit of a class of persons on a contractual basis. Labuan Foundations are also typically used for private-wealth management and charitable purposes.
Types of entities
- Company limited by shares.
- Company limited by guarantee.
- Unlimited company.
- Partnership.
- Limited partnership.
- Limited liability partnership.
Taxation
Income tax system
The Malaysian system of taxation is territorial in nature. Income of any person, including a company, accruing in or derived from Malaysia, or received in Malaysia from outside Malaysia, is subject to income tax. However, income received in Malaysia by any person (other than a resident company carrying on business of banking, insurance or sea or air transport) for a year of assessment derived from sources outside Malaysia is exempt from tax.
To modernise and streamline the tax administration system, the self-assessment system was implemented for companies, sole proprietor, partnerships, cooperatives and salaried groups and the assessment of income tax is based on a current-year basis.
Personal income tax rates
See table below on rates for the year of assessment 2020.
CHARGEABLE INCOME |
CALCULATIONS (MYR) |
RATES (%) |
TAX (MYR) |
0-5,000 |
On the first 2,500 |
0 |
0 |
5,001 to 20,000 |
On the first 5,000 |
1 |
0 |
20,001 to 35,000 |
On the first 20,000 |
3 |
150 |
35,001 to 50,000 |
On the first 35,000 |
8 |
600 |
50,001 to 70,000 |
On the first 50,000 |
14 |
1,800 |
70,001 to 100,000 |
On the first 70,000 |
21 |
4,600 |
100,001 to 250,000 |
On the first 100,000 |
24 |
10,900 |
250,001 to 400,000 |
On the first 250,000 |
24.5 |
46,900 |
400,001 to 600,000 |
On the first 400,000 |
25 |
83,650 |
600,001 to 1,000,000 |
On the first 600,000 |
26 |
133,650 |
1,000,001 to 2,000,000 |
On the first 1,000,000 |
28 |
237,650 |
Exceeding 2,000,000 |
On the first 2,000,000 Next MYR |
30 |
517,650 ............ |
Corporate income tax rates
For the year of assessment 2020:
Company with paid-up capital not more than MYR2.5 million and deriving gross business income of not more than MYR50 million in the year of assessment:
- On first MYR600,000 – 17 per cent.
- Subsequent balance – 24 per cent.
Company with paid-up capital more than MYR2.5 million: – 24 per cent
Real property gains tax (RGPT)
RPGT for disposals of Malaysian real property in the sixth year and thereafter by all disposers has increased by 5 per cent. Disposals by trustees is chargeable within Part II as well. The present chargeable RPGT, as provided by the Real Property Gains Tax Act 1976 (the Property Act), is as detailed below.
PART I
Except where Parts II and III are applicable, the following rates of tax shall apply:
Category of disposal |
Disposal within three years after the date of acquisition of the chargeable asset |
Disposal in the fourth year after the date of acquisition of the chargeable asset |
Disposal in the fifth year after the date of acquisition of the chargeable asset |
Disposal in the sixth year after the date of acquisition of the chargeable asset or thereafter |
PART II
Where the transferor is a company, the following rates of tax are applicable:
Category of disposal |
Disposal within three years after the date of acquisition of the chargeable asset |
Disposal in the fourth year after the date of acquisition of the chargeable asset |
Disposal in the fifth year after the date of acquisition of the chargeable asset or thereafter |
Disposal in the sixth year after the date of acquisition of the chargeable asset or thereafter |
PART III
In the case of an individual who is not a citizen and not a permanent resident, or an executor of the estate of a deceased person who is not a citizen and not a permanent resident, the following rates of tax shall apply:
Category of disposal |
Rate of tax (%) |
Disposal within five years after the date of acquisition of the chargeable asset |
30 |
Disposal in the sixth year after the date of acquisition of the chargeable asset or thereafter |
10 |
Pursuant to exemption orders made by the minister of finance, certain classes of persons, or certain types of disposals, may be exempted from the provisions of the Property Act. As of February 2020, such exemptions include the disposal of any chargeable asset pursuant to a restructuring scheme of a licensed person or its corporate group (Real Property Gains Tax (Exemption) Order 2015). Disposals of chargeable asset made in the sixth year after the date of acquisition and thereafter, and valued at not more than MYR200,000 is also exempted from RPGT.
Gains made from disposal of real properties may be subjected to income tax, if they are of a revenue nature.
RPGT chargeable on trust
The exemption for the disposal of any chargeable asset to a trustee-manager on behalf of a business trust (Real Property Gains Tax (Exemption) Order 2013) has been repealed.
An acquisition or disposal of an asset of a trust or partnership is assessed at the price at which the asset was in fact acquired or disposed of. Any gain or loss in respect of a disposal shall be assessed on or attributed to the trustee or the partnership. The executor of the estate of a deceased person, trustees (other than the trustee of an unincapacitated person), and any person specified as assessable and chargeable with the tax in respect of any chargeable gains are included as ‘chargeable persons’.
Where two or more persons act in the capacity of trustees of a trust or executors of the estate of a deceased person, they shall be jointly and severally liable for the payment of the tax payable on any chargeable gains accruing to the trust or estate.
For an asset that is disposed by way of gift between husband and wife, parent and child, or grandparent and grandchild, the donor shall be deemed to have received no gain and suffered no loss on the disposal if the donor is a citizen, and the disposal will not be charged for RPGT.
Non-residents
Non-residents taxable on
TYPES OF INCOME (NON-RESIDENTS) |
RATE (%) |
Business, trade or profession |
26 (Year of assessment 2016-2019); 30 (With effect from year of assessment 2020) |
Employment |
|
Dividends |
|
Rents |
|
Public entertainer |
15 |
Interest |
|
Royalty |
10 |
Payments for services in connection with the use of property or installation, operation of any plant or machinery purchased from a non-resident |
|
Payments for technical advice, assistance or services rendered in connection with technical management or administration of any scientific, industrial or commercial undertaking, venture, project or scheme |
|
Rent or other payments for the use of any movable property |
Withholding tax rate (non-treaty)
The Income Tax Act 1967 provides that where a person (referred herein as ‘payer’) is liable to make payment as listed below (other than income of non-resident public entertainers) to a non-resident person (NR payee), they shall deduct withholding tax at the prescribed rate from such payment and (whether such tax has been deducted or not) pay that tax to the Director General of Inland Revenue within one month after such payment has been paid or credited to the NR payee.
All withholding tax payments (other than for non-resident public entertainers) must be made with the relevant payment forms, duly completed, together with copy of invoices issued by the NR payee and copy of payment documents as proof of date of payment/crediting the NR payee.
More information on the withholding tax applicable to different types of income can be found in the table below.
PAYMENT TYPE |
INCOME TAX ACT 1967 |
WITHHOLDING TAX RATE (%) |
|
Contract payment |
Sections 107A (1) (a) |
10, 3 |
CP 37A |
Interest |
Section 109 |
15 |
CP 37 |
Royalty |
Section 109 |
10 |
CP 37 |
Special classes of income: |
Section 109B |
10 |
CP 37D |
Interest (except exempt interest) paid by approved financial institutions |
Section 109C |
5 |
CP 37C |
Income of non-resident public entertainers |
Section 109A |
15 |
Payment memo issued |
Real Estate Investment Trust (REIT) |
Section 109D |
10 |
CP 37E |
Family fund / Takaful family |
Section 109E |
8 |
CP 37E(T) |
Income under s.4(f) of the Income Tax Act 1967 |
Section 109F |
10 |
CP 37F |
Withholding tax rate (treaty)
NOT APPLICABLE
Taxation at death
NOT APPLICABLE
Other taxes
NOT APPLICABLE
Tax treaties
As of 8 April 2019, Malaysia has signed 74 double taxation agreements (DTAs). Further, there are six DTAs that have been gazetted, but which have not yet come into force, and 25 DTAs that are currently being negotiated. The full list of the countries with which Malaysia has signed such DTAs can be found at the following website:
Tax information exchange agreements (TIEAs)
Malaysia has signed a TIEA with Bermuda, while TIEAs with the Bahamas, Guernsey and Liberia are currently under negotiation.
Residence and domicile
Special rules on becoming resident
Pursuant to the Income Tax 1967 an individual is considered a Malaysian tax resident if they are:
- Section 7 (a): In Malaysia for 182 days or more in that basis year.
- Section 7 (b): In Malaysia for less than 182 days in that basis year, but this period is linked to either the preceding or subsequent basis year of assessment, in which they were in Malaysia for 182 or more consecutive days; provided that any temporary absence from Malaysia:
- connected with their service in Malaysia and owing to service matters or attending conferences or seminars or study abroad;
- owing to ill-health involving themselves or a member of their immediate family; and
- in respect of social visits not exceeding 14 days in the aggregate, shall be taken to form part of such period or that period, as the case may be, if he is in Malaysia immediately prior to and after that temporary absence.
- Section 7 (c): In Malaysia for 90 days or more in that basis year, and in three out of four basis years before the year assessment, was either:
- a tax resident; or
- in Malaysia for 90 days or more; and
- Section 7(d): A tax resident in Malaysia within the meaning of the Income Tax Act 1967 for the basis year following that particular year of assessment, having been a resident for each of the three basis years immediately preceding that particular year of assessment.
Special rules on ceasing residence
NOT APPLICABLE.
Domicile concept for gifts and inheritance
NOT APPLICABLE.
Taxation of holdings by non-residents on death and of gifts
- Gifts: nil.
- Death: nil.
Reporting/auditing requirements
No.
Incentives
In an effort to attract FDI, the Budget has introduced, increased and extended various incentives, including:
Customised packaged investment incentives
The government will make available up to MYR1 billion worth of customised packaged investment incentives annually over a span of five years, targeted at “Fortune 500 companies and global unicorns in high technology, manufacturing, creative and new economic sectors”. These companies must invest at least MYR5 billion in Malaysia for economic activities.
Electrical and electronics (E&E) industry incentives
To propel the 5G digital economy and Industry 4.0, incentives in the E&E industry include income tax exemption of up to ten years for E&E companies, and special income tax exemption equivalent to investment tax allowance of 50 per cent on qualifying capital expenditure incurred within a period of five years for E&E companies that have exhausted the 15-year eligibility period to claim investment expenditure.
Invest KL’s China special channel (CSC)
In tandem with the CSC announcements in the Budget, Invest KL has signed a memorandum of agreement in January 2020 with Chinese Business Chambers, targeting to achieve at least MYR5 billion in investments from China to Malaysia. This initiative aims to attract Chinese investors operating in key sectors including consumer technology, renewable energy, medical technology, E&E, mechanical engineering and aerospace.
Green technology incentives
The Green Investment Tax Allowance and Green Income Tax Exemption has been extended from 2020 to 2023. A ten-year masterplan was approved in September 2019. The key reform initiative includes allowing generators to source their own fuel from providers other than Tenaga Nasional Berhad (the Malaysian government-linked electricity company) and establish third-party access framework and network charges for the grid, which could encourage power purchase from other ASEAN countries. The government’s vision is to increase its green energy generation mix to 20 per cent by 2025.
Other relevant information
Asset protection laws
No specific asset protection laws.
Foreign currency restrictions
No.
Foreign ownership restrictions
No restrictions on foreign ownership of equity except as set out in specific laws, like the National Land Code.
AML/due diligence and other requirements and regulatory procedures for advisors
- To establish a trust.
- For incorporation.
- To open a bank account.
Generally, as part of its international obligations and commitments, Malaysia enacted its Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (the AMLATFA), which came into force on 1 September 2014 and 1 October 2014 for provisions relating to Part IVA of the AMLATFA. The AMLATFA complies with nearly all of the Financial Action Task Force (FATF) 40 Recommendations (original) and recent amendments have been enacted to the AMLATFA pursuant to the Anti-Money Laundering (Amendment) Act 2003 that extend its application to cover the offence of terrorist financing. The AMLATFA is therefore Malaysia’s primary legislative framework on anti-money laundering and anti-terrorist financing and these legislations applicable to the reporting institutions including branches and subsidiaries outside Malaysia carrying on any activity listed in the First Schedule of AMLATFA.
The definition of money laundering is now broader under the AMLATFA and includes the act of a person who:
- engages, directly or indirectly, in a transaction that involves proceeds of any unlawful activity;
- acquires, receives, possesses, disguises, transfers, converts, exchanges, carries, disposes, uses, removes from or brings into Malaysia proceeds of any unlawful activity; or
- conceals, disguises or impedes the establishment of the true nature, origin, location, movement, disposition, title of, rights with respect to, or ownership of proceeds of any unlawful activity.
The key phrase here is ‘proceeds of any unlawful activity’ and the AMLATFA has defined it as ‘any property derived or obtained, directly or indirectly, by any person as a result of any unlawful activity'.
Key resources for further information
WEBSITES
- Bank Negara Malaysia: www.bnm.gov.my
- Malaysian Investment Development Authority: www.mida.gov.my
- Inland Revenue Board of Malaysia: www.hasil.gov.my
- Securities Commission Malaysia: www.sc.com.my
LEGISLATION
- Income Tax Act 1967.
- Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.
- Stamp Duty Act 1949.
- Real Property Gains Tax Act 1976.
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