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Administrative Tribunal disagrees with board’s interpretation of documentary evidence

The Administrative Review Tribunal held on November 17, 2014 that the Transfer of Residence Exemption Board misinterpreted clear documentary evidence that an applicant’s vehicle was in Italy for more than two years and therefore, entitled to an exemption on tax.

malcolm_mifsud
Malcolm Mifsud
28 November 2014, 8:00am
Katia Borg had appealed from a decision of Transport Malta (TM), which refused an exemption on registration in Malta of a car with Italian number plates.

The transport authority held that it was not it that took this decision but the Minister of Finance. In view of this Ms Borg asked the tribunal to call into suit the Minister of Finance, Economy and Investment, which request was upheld. The minister held that Ms Borg failed to prove that the vehicle in question was being used in the previous two years. In fact the evidence showed the contrary. 

"Although it was proved that Ms Borg followed a course in Malta between 2006 and 2008, this did not mean that the vehicle was in Malta for three years "
Magistrate Charmaine Galea examined the evidence which was brought before the board and the tribunal. On 19 June, 2009 Ms Borg was informed that her application for an exemption under Article 19 of the Motor Vehicle Registration and Licensing Act was being turned down because the vehicle was in Malta for the previous three years.

With regard to TM’s plea that it was not involved in the decision, the tribunal held that TM and the minister are two different entities and the Transfer of Residence Exemption Board falls under the latter’s competence. TM cannot influence the decision one way or another and therefore, the tribunal upheld this plea.

With regard to the merits of the appeal, Magistrate Galea held that Ms Borg followed a course on jewellery in 2006 and as a consequence she had asked Transport Malta (TM) to allow her to import her car into Malta to be able to follow this course. This request was consented to for two years.

In 2008 she reapplied for an extension explaining that she was to follow another course. This time TM turned down the application. In 2009 she decided to relocate to Malta permanently and asked for an exemption from the registration tax of the vehicle. It resulted that the 2006 course was a correspondence course and travelled occasionally to Malta from Italy.

The Ministry of Finance had refused the application on the ground that from the data forwarded by TM she had used her car in Malta for the previous three years. Ms Borg claims that her letter to TM was misinterpreted because it was presumed that she was in Malta for the whole time. Magistrate Galea viewed the documents the ministry had in hand which included receipts of payment of rent of a premises in Italy, receipts from a mechanic in Italy and parking receipts in Italy also.

The Tribunal observed that the applicable legislation was Legal Notice 196 of 2009, which commenced on January 1, 2009. Article 4(1) of this Legal Notice states:

“4. (1) The exemption under sub-article (3) (i) of article 19 of the Act shall be granted to a motor vehicle which is the personal property of a private individual and is being brought or imported permanently into Malta by the individual when he is transferring his residence from a place outside Malta to a place in Malta:

Provided that –

(a) that person has been residing outside Malta for a continuous period of more than twenty-four months before his transfer of residence to Malta;

Motor vehicle brought over for demonstration purposes.

(b) the motor vehicle has been in his possession and used by him outside Malta for at least twenty-four months before the date on which he ceased to have his residence outside Malta;

(c) the vehicle is registered in his name or in the name of his or her spouse where applicable;

(d) that person holds a valid driving licence;

(e) the vehicle shall be imported or brought into

Malta within twelve months of the individual’s transfer of residence;

(f) the motor vehicle shall not be sold, given away, disposed of, hired out or lent following its importation or its bringing into Malta unless the vehicle registration tax to which the exemption aforesaid relates is paid thereon in accordance with the provisions of the First or Second Schedule to the Act.”

The tribunal held that it did not agree how the board interpreted the facts of the case. Although it was proved that Ms Borg followed a course in Malta between 2006 and 2008 and came to Malta from Italy occasionally, this did not mean that the vehicle was in Malta for three years. This was not challenged by the authorities. When she visited Malta with the car she asked for permission from TM. 

The tribunal concluded by reversing the ministry’s decision and ordered it to re-evaluate its decision under this interpretation.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

malcolm_mifsud
Malcolm Mifsud is a partner at Mifsud & Associates.
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