The Unwise Double U-Turn Saves The Day, The Government Finally Recognized The Right Of The Labuan Entities Carrying “Other Trading” Under The Jurisdiction Of Labuan Business Activity Tax Act 1990

*This is an update to the recent article entitled “Offshore Labuan Entity Shall Not Be Forced To Re-submit Tax Return Under Federal Income Tax Law” published on 22nd February 2021. 

The directive issued by the Inland Revenue Board (“IRB”) dated 5.2.2021 has caused much confusion to the Labuan offshore industrial player. Fortunately, the Ministry of Finance has finally arrived at a realization that the root of the commotion caused by the IRB’s directive was due to the failure of Labuan Business Activity Tax (Requirements for Labuan Business Activity) Regulations 2018 (“2018 Regulations”) be drafted and gazetted to support and reflect the real intention of the existing Parent Act, i.e., Labuan Business Activity Tax Act 1990 (“LBATA”), in particular, Section 2B(1)(b) of the Act. Thus, a new Regulations (instead of amended) was made on 22.11.2021 namely the Labuan Business Activity Tax (Requirements for Labuan Business Activity) Regulations 2021 (“2021 Regulations”) to rectify, otherwise filling up the loopholes in the 2018 Regulations and its amended version i.e., the 2020 Regulations.

Regrettably, this revelation to enact the 2021 Regulations was not before the exhaustive and voluminous filing of two Judicial Review Applications by us on behalf of numerous Labuan offshore entities against IRB. The first Judicial Review Application was filed on 18.3.2021 in the Kuala Lumpur High Court with 71 Plaintiffs which was met with an attempt by the IRB to become the “Putative Respondent” in the Ex-Parte Leave Application stage. Thereafter, another 13 Labuan offshore companies approached us and instructed us to file their own Judicial Review Application, which we did so on 14.4.2021. IRB made the same attempt to become the Putative Respondent, however, IRB’s application in both of the Judicial Review Applications were rejected by the Court on the ground that the Court cannot see how IRB can assist the Court in deciding whether the Plaintiffs’ case is frivolous or otherwise at the leave stage; which is parallel to the principle laid out by Gopal Sri Ram JCA (as he then was) in the case of Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional Bhd & Ors [2006] 5 MLJ 60.

The Judicial Review Applications were met with another hurdle as the Attorney General in Chambers office has decided to object the Plaintiffs’ Ex-Parte Leave Application. After so many delays, the Application for Ex-Parte Leave for both of the Judicial Review Applications were set for Hearing on 20.9.2021. The Court was on our clients’ side and the Judicial Review Applications were allowed to be heard on merit on a date to be fixed during a Case Management before the Deputy Registrar. During a Case Management on 20.10.2021, IRB’s counsel informed the Court that the Ministry of Finance is working with relevant authorities to issue a new Regulations which the counsel contended would give “significant effect” to the parties’ dispute in the Judicial Review Applications, thus adjournment for the filing of Affidavit in Reply was sought by the IRB’s counsel for 2 months until 16.12.2021, which the Court allowed.

At last, on 22.11.2021, the 2021 Regulations was made, and true enough, it does give a significant effect on our clients’ Judicial Review Applications. First of all, the 2021 Regulations was deemed to have come into operation on 1.1.2019 (except for Regulation 3), in fact, the 2021 Regulations was enforced to the extent of revoking the 2018 Regulations, which in consequence revoked the 2020 Regulations considering the same was the amended version of the former.

Meanwhile, the most significant effect of the 2021 Regulations is all the Labuan offshore companies who used to file their tax return under the category of “other trading” but was compelled to file pursuant to Income Tax Act 1967 (“ITA”) due to the IRB’s directive dated 5.2.2021 can sigh in relief; because the 2021 Regulations has solidified their tax jurisdiction to be under LBATA, instead of the Federal Income Tax Act.

To put the matter in perspective, the directive dated 5.2.2021 issued by IRB has alleged that as a result of gazetting the 2020 Regulations (the amended version of 2018 Regulations), Labuan entity carrying on “other trading” activities was excluded from the meaning of “Labuan entity” and must submit their income tax pursuant to ITA, notwithstanding the fact that IRB has been receiving tax return submission from Labuan entities/companies carrying on “other trading” activities. Although these Labuan entities were never mentioned in the 2018 Regulations in the first place, thus, supposedly, the 2020 Regulations should not also change the status of the Labuan entities carrying on “other trading” activities. Regardless, IRB decided to issue the directive dated 5.2.2021 as if the 2020 Regulations could change the definition of “Labuan entity”.

Now, as the 2021 has included substance requirements to be complied with by Labuan entity carrying “other trading” activities, specifically in item 20 in the First Schedule of the Regulations, these Labuan entities can go back to filing their tax return pursuant to LBATA although supposedly the Regulations should not be able to re-define the meaning of “Labuan entity” pursuant to Section 2B of LBATA.  In such event, we can see that the government has been making a double U-turn, where:-

We trust that the unwise U-turn can be easily evitable and contentious litigation process can be avoided with full appreciation of the existing law where one must appreciate that you can’t define and re-define the meaning of “Labuan entity” haphazardly.

In conclusion, we applaud the Ministry of Finance for taking legal steps in resolving the confusion which has caused a major stir up to the Labuan offshore industry players due to IRB’s directive issued on 5.2.2021. We trust the written law will always be upheld in order to provide clarity in tax treatment for all.