FREE NOVEMBER 2019 Publication Permit PP19508/08/2019(035103) Company & Constitution: Updates Can companies with Muslim to Real Property Gains directors be subjected to Syariah Tax Act 1976 & Stamp Court’s jurisdiction? ~ Pg 3 Act 1949 ~ Pg 4&5 NOVEMBER 2019 2 Message from the Editor Dear readers, Welcome to Empower, the voice and message of Halim Hong & Quek. Empower is our publication that aims to empower readers with knowledge and updates of the latest law, particularly that is close to our legal practice. We are pleased to publish the fourth issue of this newsletter which discusses some of the more recent issues in the real estate practice, company law and constitutional law. The recent judicial review application by Sisters in Islam (SIS) attempting to quash a fatwa that has labelled its company as deviant has surely attracted much controversy in the nation. The least that can be be said about this ruling is it Editorial Board could have far-reaching effects on companies operating in Chong Lee Hui Malaysia. Kashmirjit Kaur Ankit Sanghvi Also featured in this issue is our update of the amendments Lim Yoke Wah to the Real Property Gains Tax Act 1976 through the Goh Li Fei Finance Bill 2019 which mainly expanded the categories of Tan Lin Hong persons which could be subjected to real property gains tax. William Lee Wei Lie Read too the amendment in Stamp Act 1949 which will take Koh Sze Jie effect soon on 1 January 2020. Though Empower has been considered “new” in circulation, we were humbled by the feedback and notes of Design & Layout encouragement from our readers. This shall serve to Tan Poh Yee reinforce our efforts to empower everybody with law. Maizatul Akmal Tan Poh Yee Editor-in-Chief NOVEMBER 2019 3 Companies & Constitution: Can companies with Muslim directors be subjected to Syariah Court’s jurisdiction? On 27 August 2019, the Kuala Lumpur High Court dismissed an application for judicial review by Sisters In Islam (SIS) to challenge the “The decision has decision of the Selangor Fatwa Committee who had issued a fatwa labelling SIS as a deviant organization. SIS was also labelled as aroused such a divergent from the true teachings of Islam. storm as it went against the The legal suit has been fought and has been the subject matter of discussion over the last five years by SIS represented by its founder fundamental and Zainah Mahfoozah Anwar and former minister in the Prime Minister’s general principle Department, Datuk Mohd Zaid Ibrahim. of a company The High Court has ruled that the civil courts have no jurisdiction over being treated as a issues related to Syariah state laws pursuant to Article 121(1A) of the Federal Constitution and therefore the fatwa is applicable to SIS, being separate legal a company with Muslim directors and its business affairs that relate to entity” Islamic law. Even though a challenge has been mounted by SIS as to the constitutionality and legality of the fatwa on the basis that it is an unlawful fetter on its freedom of expression, the High Court had ruled that there was no basis for such challenge as the issuance of the fatwa was not tainted with illegality and/or disproportionality. About the author The decision has aroused such a storm as it went against the fundamental and general principle of a company being treated as a separate legal entity and hence its members and directors exist separately and distinctly, legally speaking. This was the point raised by SIS which the High Court did not agree with. This decision may have far reaching effects on companies, especially companies with Muslim directors and activities which could be subjected to the Syariah law. Tan Lin Hong is an associate of Halim Hong & Whether the decision reflects an attempt by a state fatwa to override Quek practising in civil and an Act of Parliament or the Federal Constitution, we await the written commercial litigation. grounds of judgment before commenting any further. The dust has not T: 03-27103818 (Ext 156) settled just yet. E: [email protected] NOVEMBER 2019 4 Amendment Bill to the Real Property Gains Tax Act 1976 and Stamp Act 1949 This year’s Finance Bill contains amendments to the Real Property Gains Tax Act 1976 following the announcement in Budget 2020. Among others, the amendments are as follows: A. Real Property Gains Tax 1. Extension of category of disposer who are liable to pay 7% Real “The categories Property Gains Tax (RPGT) of disposers Pursuant to the proposed amendment to Section 218(1A) of the RPGT Act, the categories of disposers who are liable to pay RPGT who are liable of 7% includes companies not incorporated in Malaysia. Currently, to pay RPGT of the 7% rate of RPGT only applies to individual disposers who are neither citizens nor permanent residents in Malaysia. Under the 7% will include provision, the acquirer shall retain 7% of the purchase price to be companies not remitted to Director-General of Income Tax within 60 days from the date of sale and purchase agreement. incorporated in 2. Determining market value of properties first acquired by Malaysia” disposer prior to 1 January 2013 Under paragraph 2(A) of Schedule 2 and under paragraph 13(2) of Schedule 3 of the RPGT Act, the market value as at 1 January 2013 will be taken to ascertain the acquisition price for property acquired by the disposer before 1 January 2013.This was made following the announcement in Budget 2020. This amendment has taken effect from 12 October 2019. 3. Rate in Part II of Schedule 5 now applicable to companies incorporated in Malaysia or a trustee of a trust The rate in Part II of Schedule 5 refers to the rate of real property gains tax which are applicable where the disposer is a company. Under Part II, disposal within three years after the date of NOVEMBER 2019 5 continued from page 4 acquisition of a chargeable asset will attract a 30% rate of #HHQFacts tax. Disposal in the fourth year after the date of acquisition will attract a 20% rate of tax. Disposal in the fifth year after the date of acquisition of the property will attract a 15% tax while disposal in the sixth year after the date of acquisition will be subject to 10% tax. 4.. Rates in Part III of Schedule 5 applicable to foreigners The rates in Part III of Schedule 5 are rates applicable in cases where the disposer is not a citizen, not a permanent resident or is an executor of the estate of a deceased person who is not a citizen or permanent resident. Part III of Schedule 5 will be proposed to be applicable to companies not incorporated in Malaysia. Under Part III, disposal of property within five years after the date of acquisition will be subjected to a 30% tax while disposal of properties in the sixth year after the date of acquisition of the property will be subject to a 10% tax. Winding up is a term used to describe 5. Coming into force of the amendments the process in which the existence of a company is brought to an end, where Except for the provisions relating to the market value of assets of a company are collected and properties under paragraph 2(A) of Schedule 2 and paragraph 13(2) of Schedule 3 which has taken effect on realized. The proceeds collected are 12 October 2019, the amendments will take effect upon used to discharge the company’s debts the passing and gazette of a notification date. and liabilities and the remaining balance (if any) will be distributed B. Amendment to the Stamp Act 1949 amongst the contributories according to their entitlement. The maximum amount of stamp duty for a charge where the loan is in foreign currency or the finance made One of the effects of the winding up according to Syariah in currencies other than Ringgit is order is that no legal proceeding can now increased from RM500 to RM2000. This amendment will come into force on 1 January 2020. proceed unless leave of court is obtained. The application for leave of court shall be made in the court granting the winding up order and shall be served on the liquidator. About the author Tan Poh Yee has represented multi-national and government linked companies both in an advisory capacity as well as lead counsel at all levels of the Malaysian courts. T: 03-2710 3818 (Ext 104) E: [email protected] NOVEMBER 2019 6 Creating Memories Together at the Exotic Thailand As the end of the year is fast approaching, our firm organized a 3- day 2-night company trip to Hatyai, Thailand to reward all the staff for their hard work and great effort throughout the year. Hatyai is the largest city of the Songkhla province in Thailand. “Our company Once we set foot in there, the trip immediately begun with a visit to trip this year the very famous Klong Hoe floating market. We walked along the was fun & a riverside where hundreds of boat vendors sold delicious traditional memorable one Thai street food, drinks and souvenirs, all from their parked boats!. We followed our nose. The rain on the first day did not dampen our as it provided a venturing spirit. Looking down the floating market from a nearby great bridge, the market looked spectacular. After a long day at the opportunity for floating market, we enjoyed relaxing traditional foot massage provided in the quiet setting of the hotel we stayed in.