Understanding Tax Domicile in Malta

The concept of domicile remains a cornerstone of Maltese law, influencing various legal domains, particularly taxation and succession.

While often discussed in conjunction with residence and ordinary residence, domicile carries its own distinct meaning and is determined through a complex assessment of an individual’s connections and intentions. The case law discussed in the provided sources offers valuable insights into how Maltese courts interpret and apply this crucial legal concept.

According to the excerpts, for non-Maltese persons, the concept of domicile is broadly defined as a person’s chief residence worldwide, a person’s permanent home, or a country to which the individual feels most attached.

This definition highlights the subjective and deeply personal nature of domicile, going beyond mere physical presence.

Every individual acquires a domicile of origin at birth, typically the domicile of their parents. This initial domicile can be changed later in life by acquiring a domicile of choice.

However, the legal threshold for proving a change in domicile is significant.

To establish a domicile of choice, two elements must be present:

• animus manendi: the intention to reside permanently or indefinitely in the new domicile; and
• cessation of animus revertendi: the intention to return to the domicile of origin.

The burden of proving a change in domicile rests on the person asserting it, and the evidence must be clear and conclusive.

Maltese courts place considerable reliance on the textbook Cheshire and North on Private International Law when interpreting the concept of domicile. This text serves as a key reference point for understanding the nuances of domicile under Maltese law.

Maltese case law demonstrates that domicile is determined by examining an individual’s circumstances, connections and intentions rather than physical presence alone.

Corinthia Construction Limited versus Christopher Rizzo

This case, though not primarily a tax case, hinged on the domicile of Mr Rizzo, who was benefiting from a special tax scheme for individuals working mainly outside Malta.

The court concluded that Mr Rizzo was both ordinarily resident and domiciled in Malta.

In reaching this decision, the court considered various indicators, including:

• a declaration made in a separation agreement where he reserved rights over Maltese property;
• his neighbour’s testimony of seeing him living in Malta;
• the fact that his salary was received in euros in a Maltese bank account; and
• his registration as a Maltese employee availing himself of the special tax scheme.

This case underscores that merely living abroad is not conclusive proof of a change in domicile.

Maltese Citizen Who Emigrated to Australia

Another, this time succession kind of case, involved a Maltese citizen born in Gozo who emigrated to Australia for 20 years without returning permanently.

Despite his long residence in Australia, the court had to determine his domicile to ascertain the validity of his will. The court reiterated that immigration, even for a lengthy period, does not automatically imply a change in domicile.

Factors considered included:

• his retention of Maltese citizenship;
• a share in Maltese property;
• the fact that two of his sons remained in Malta; and
• his expressed desire to return to Malta if his wife had not prevented it.

Ultimately, the court concluded that he remained domiciled in Malta because, despite his physical presence in Australia, he lacked the unequivocal intention to abandon his Maltese domicile permanently.

This case highlights the complex assessment of an individual’s intentions and affections in determining domicile. The fact that the first court and the Court of Appeal reached different conclusions initially demonstrates the inherent subjectivity and complexity in domicile cases.

Italian Couple Living in Gozo

A different case of the Italian couple in Gozo involved an Italian husband who lived and worked in Gozo with his wife, integrating into the local community.

Despite his wife’s ashes being buried in Italy and his stated wish to be buried with her there, the court held that his domicile was in Gozo.

The court reasoned that his occasional visits to Italy were insufficient to displace his Gozitan domicile. There was clear evidence of his intention to establish his permanent home in Gozo, evidenced by:

• his work permits;
• tax payments in Malta;
• his declaration as a resident of Malta for double tax treaty purposes;
• ownership of a car in Malta; and
• his and his late wife’s significant contributions to the Gozitan community.

This case demonstrates that even strong emotional ties and intentions related to burial in another country do not necessarily override other concrete indicators of domicile.

Ordinary Residence and Domicile

One of the most recent cases involved a multi-citizen employed as cabin crew with Ryanair who contended that he was not ordinarily resident in Malta.

While the primary issue was ordinary residence, the court also considered his domicile, finding that he was domiciled in Malta.

The case underscores the distinct nature of ordinary residence, which requires a degree of continuity of residence as part of a person’s everyday life, whereas domicile is a more fundamental and enduring connection to a particular jurisdiction.

It is crucial to distinguish between domicile and residence.

While residence is generally determined by a physical presence test, domicile involves a more profound connection and the intention to make a place one’s permanent home.

A person can have multiple residences but, under British common law principles followed in Malta, can only have one domicile at any given time.

The concept of ordinary residence further adds a layer of complexity, requiring more than mere residence and connoting residence with a degree of continuity and as part of one’s normal life.

The concept of domicile has significant implications, particularly in the realm of taxation.

The remittance basis of taxation, a feature of the Maltese tax system for many years, applies to individuals who are either not resident or not domiciled in Malta. Such individuals are generally not taxed on foreign-source capital gains and foreign-source income unless that income is received in Malta.

This highlights how domicile status directly impacts an individual’s tax liability in Malta.

Domicile also plays a vital role in matters of succession, determining which jurisdiction’s laws govern the inheritance of an individual’s estate.

The proper interpretation of a will often hinges on the domicile of the deceased at the time of their death.

[question]What is domicile in Malta?[/question]

[answer]Domicile concerns an individual’s fundamental and enduring connection to a jurisdiction and their intention to make it their permanent home. It goes beyond mere physical presence.[/answer]

[question]Is domicile the same as residence in Malta?[/question]

[answer]No. Residence is generally determined by physical presence, while domicile involves a more profound connection with a jurisdiction and an intention to make it one’s permanent home.[/answer]

[question]What is a domicile of origin?[/question]

[answer]Every individual acquires a domicile of origin at birth, typically the domicile of their parents.[/answer]

[question]Can a person change their domicile?[/question]

[answer]Yes. A domicile of origin can be changed by acquiring a domicile of choice. This requires animus manendi and the cessation of animus revertendi, with clear and conclusive evidence required to establish the change.[/answer]

[question]Can someone have more than one domicile?[/question]

[answer]A person can have multiple residences but, under the British common law principles followed in Malta described in this article, can only have one domicile at any given time.[/answer]

[question]Does living outside Malta automatically change a person’s domicile?[/question]

[answer]No. The cases discussed above demonstrate that living abroad, even for a lengthy period, does not in itself conclusively establish a change of domicile.[/answer]

[question]Why is domicile relevant to taxation in Malta?[/question]

[answer]Domicile can affect the basis on which an individual’s foreign income and capital gains are taxed in Malta, including the application of the remittance basis described above.[/answer]

[question]Why is domicile important for succession?[/question]

[answer]Domicile can be relevant in determining which jurisdiction’s laws govern the inheritance of an individual’s estate and the interpretation of a deceased person’s will.[/answer]