Cap. 364 Art. 35Special rules applicable to declarations.

(1) Saving the provisions of article 34 in assessing the duty chargeable on declarations in accordance with this Act no account shall be taken of:

(a) (i) The first thirty-five thousand euro (35,000) or such other greater amount as may be prescribed of the value of a dwelling house, being an ordinary residence of the person from whom the transfer originates, in any transfer causa mortis causa mortis of the ownership or usufruct or of any real right over the said dwelling house:

Provided that where such dwelling house is not fully owned or otherwise held by the person from whom the transfer causa mortis originates, the amount of the value that shall not be taken into account shall be such amount as is proportionate to thirty-five thousand euro (35,000) or such other greater amount as may be prescribed as aforesaid or the value of the dwelling house (whichever is the less) as the proportion of the share of the ownership or other title under which the dwelling house is held by such person is to the whole: Provided further that where such dwelling house is transferred to more than one transferee causa mortis, the amount of the value that shall not be taken into account shall be such proportion of the amount arrived at in accordance with the first proviso hereof as is equal to the proportion of the share held by the person from whom the transfer causa mortis originates that is transferred to the transferee causa mortis.

(ii) Where in respect of the dwelling house to which this sub-article refers, relief has also been granted in terms of article 6 of the Home Ownership (Encouragement) Act, the relief granted under this sub-article and under the said article 6 of the said Act, shall not be compounded, but the person otherwise liable to pay duty shall have the right to opt for the relief which is more advantageous to him.

(b) The value of the usufruct of any property chargeable under this Act bequeathed by the person from whom the transfer originates in favour of his causa mortis surviving spouse or cohabitant.

(2) Saving the exemptions granted in sub-article (1):

(i) where such property consists of a dwelling house, being the ordinary residence of the person from whom the transfer originates, and where such dwelling house is also occupied at the time of such transfer by any causa mortis one or more of the transferees duty causa mortis, shall be charged at the rate of three euro and fifty cents (€3.50) for every one hundred euro (€100) or part thereof of such share transferred to each transferee causa mortis occupying such dwelling house as his ordinary residence as represents that part of the value of such dwelling house which exceeds thirty-five thousand euro (€35,000) but not two hundred thousand euro (€200,000), or such greater amounts as may be prescribed; and where such dwelling house was not fully owned or otherwise held by the person from whom the transfer originated, the amount of causa mortis the value chargeable at the said rate shall be such amount as is proportionate to thirty-five thousand euro (€35,000) or that part of its value which exceeds thirty-five thousand euro (€35,000) but not two hundred thousand euro (€200,000) or such greater amounts as may be prescribed as aforesaid, and the value of such house (whichever is the less) as the proportion of the share of the ownership or other title under which the dwelling house was held by such person was to the whole;

(ii) where such property consists of a dwelling house not being a dwelling house to which sub-paragraph (i) refers, but being the ordinary residence occupied by any one or more of the transferees in a transfer causa mortis causa of the ownership or usufruct of any real mortis right over the said dwelling house, duty shall be charged at the rate of three euro and fifty cents for every one hundred euro or part thereof in respect of such share transferred to each transferee causa mortis occupying such dwelling house as his ordinary residence as represents the first two hundred thousand euro (€200,000) or such greater amount as may be prescribed as aforesaid, of the value of such dwelling house; and where such dwelling house was not fully owned or otherwise held by the person from whom the transfer originated, the causa mortis amount of the value chargeable at the said rate shall be such amount as is proportionate to two hundred thousand euro (€200,000) or such greater amount as may be prescribed as aforesaid, or the value of the dwelling house (whichever is the less) as the proportion of the share of the ownership or other title under which the dwelling house was held by such person was to the whole;

(iii) where such property consists of a dwelling house, being the ordinary residence of the person from whom the transfer originates, and the beneficiary of such residence is the surviving spouse or cohabitant, no duty shall be levied at the time of the transfer;

(iv) where all the following conditions are satisfied, that is -

(a) the property transferred causa mortis consists of any immovable or any real right over an immovable;

(b) the transferee is a person who is causa mortis on the Register of Persons with Disability kept by the National Commission Persons with Disability set up in terms of the Equal Opportunities (Persons with Disability) Act, and identifies himself as such on the declaration of the relative transfer causa by means of an identity card issued by mortis the said Commission;

(c) the person from whom the transfer causa originates is the parent or the legal mortis guardian of the said transferee causa mortis, no duty shall be levied at the time of the transfer of that property; causa mortis

(v) where all the following conditions are satisfied, that is -

(a) the property transferred causa mortis consists of a dwelling house or a part thereof, or of any real right over a dwelling house;

(b) the property is transferred by the person from whom the transfer causa mortis originates to his descendants in the direct line;

(c) the said dwelling house was the ordinary residence of the person from whom the transfer originates, no duty shall be levied at the time of the transfer of that property. causa mortis

(3) For the purpose of determining the applicability of the benefits referred to in sub-articles (1)(a) and (2) whenever the dwelling house is transferred to a trustee, reference causa mortis shall be made to the beneficiaries of the trust as indicated in the declaration, and the trustee shall be ignored for such purpose. No reference to the beneficiaries of a trust shall be made for the purpose of sub-article (1)(b).

(4) (i) Any exemption or relief granted under sub-articles (2)(iv) and (2)(v) of this article shall only be available where the deed of the transfer is made causa mortis within one year from the relative succession and if notice thereof is given to the Commissioner in accordance with article 33 by not later than either fifteen working days after the date of the publication of the deed or the expiration of the said period of one year, whichever is the later:

Provided that for the purposes of a claim for the exemption on a transfer granted in accordance with sub-article causa mortis (2)(v), where:

(a) the right of the person making the declaration of the transfer to acquire the dwelling house in causa mortis question, or a part thereof, or a real right thereon, has been the subject of litigation in a court of law which has been concluded by a judgment which has become res judicata; and

(b) a copy of the said judgment is attached to the notice required to be given to the Commissioner in accordance with article 33, the said period of one (1) year shall be reckoned to run from the date on which the said judgment became res judicata.

(ii) Where the declaration is made more than one year after the happening of the transfer there causa mortis shall be payable together with the duty assessed in accordance with this Act interest at a rate as prescribed by the Minister on any duty remaining unpaid in respect of each year or part thereof that elapses between the first anniversary of the date of the transfer and the date of the making of the causa mortis declaration:

Provided that in all cases the said interest shall not exceed the duty due.

(5) Where a declaration refers to a usufruct that is transferred to several persons jointly or successively, or jointly causa mortis and successively, the duty on the said declaration in respect of such transfer causa mortis shall be levied only at the commencement of the usufruct.

(6) Notwithstanding any other provision of this Act, the following provisions of this article shall apply to a declaration in respect of a transfer subject to a suspensive condition causa mortis which is not merely potestative or of a transfer causa mortis upon trust:

(a) the declaration shall be made and the duty shall be due and paid by the administrator of the inheritance, or in the absence of an administrator by the heirs, in accordance with the provisions of this Act, notwithstanding the contingent nature of the transfer subject to any right of reimbursement causa mortis, against the person benefiting under the said transfer causa mortis;

(b) the duty chargeable under this Part shall be assessed as if the transfer was one in favour of the person standing to benefit from the transfer, failing the contingency.

(7) When the contingency referred to in sub-article (6) happens, or where effect is given to the transfer of property before the happening of the contingency -

(a) a declaration making a statement of the happening of the contingency, or that effect has been given to the transfer shall be given by the transferee causa mortis, causa mortis benefiting thereunder; and such transferee shall, in addition to any causa mortis reimbursement of duty, be also liable for the payment of any duty assessed in virtue of the provisions of this sub-article; and

(b) the happening of the contingency or the earlier transfer as aforesaid shall be deemed to be a transfer causa mortis and the transferee causa mortis benefiting thereunder shall reimburse to any person having made a declaration and paid duty in accordance with sub-article (6) hereof the duty so paid, and shall where the duty payable pursuant to this sub-article is more than the duty paid pursuant to sub-article (6) only the difference between such duties shall be payable, and where the duty payable is less he shall be entitled to a refund paid in excess.

(8) When the person from whom the transfer causa mortis originates is hospitalized or residing in an old people’s home at the time of the transfer, the ordinary residence occupied by that person before being hospitalized or going to reside in an old people’s home shall be considered as that person’s ordinary residence for the purposes of this article.

(9) Notwithstanding the provisions of article 32, but without prejudice to sub-articles (10) to (13), no duty shall be levied on the transfer causa mortis of qualifying agricultural land.

(10) For the purposes of sub-articles (9) to (13), "qualifying agricultural land" means immovable property situated in Malta which is certified by the competent authority responsible for the agriculture land lease and ownership register within the Ministry responsible for agriculture as land which, at the time of the transfer in question:

(a) is an agricultural activity as defined in the Agriculture Act, is being undertaken by the heir or one (1) of the heirs who classifies as a professional farmer and, or is being inherited by an heir who is himself a professional farmer as shall be established by the Minister responsible for agriculture by means of the publication of a notice in the Gazette; or

(b) is leased in accordance with the provisions of the Agricultural Leases (Reletting) Act and is registered with the competent authority responsible for the agricultural land lease and ownership register.

(11) A certificate issued in accordance with sub-article (10) shall be attached to the declaration of the transfer of the property causa mortis in question drawn up in accordance with article 33 together with such details and documents as the Commissioner may require.

(12) An exemption requested in terms of sub-article (9) shall be granted on condition that before the lapse of five (5) years from the date of the transfer no transfer is made of the causa mortis inter vivos property in question or of a part of it:

Provided that, where the qualifying agricultural land is assigned to any of the co-owners who is himself a professional farmer by deed of partition, such shall not be considered as a transfer in terms of this sub-article.

(13) A claim for an exemption in accordance with sub-article (9) may be withdrawn by means of a declaration of a transfer causa mortis made in accordance with article 33 that modifies the declaration in which the exemption had been requested and the payment of the duty on that transfer, with interest at the prescribed rate which shall run as from the date of the first anniversary of the transfer causa mortis.