Airbnb, Hotels.com, Booking.com – Deadline for operators of online reservations of accommodation premises to register for the recovery of the tourist tax
The Tourism Tax Act 2017 (“the main act‘) was enacted by the Government of Malaysia to provide a framework for the imposition and collection of a tourist tax on any tourist staying at accommodation premises in Malaysia.
The main law was later amended by the Tourism Tax (Amendment) Act 2021 (‘the amending law‘) which entered into force on April 1, 2021, with the exception of a new Part VA to be added to the main law from July 1, 2021. Part VA, among others, imposes an obligation on any person who operates an online booking service for local accommodation within or outside Malaysia (“digital platform service provider‘) to collect and pay the tourist tax to the Government of Malaysia for accommodation premises in Malaysia booked by a tourist.
The rate of the tourist tax, as prescribed by the Tourism Tax (Digital Platform Service Provider Tax Rate) Order 2021, is RM10 per room per night. This tax will be invoiced from July 1, 2021 as part of the Appointment of the effective date for invoicing and collection of tourist tax.
Who is a tourist?
The Main Act prescribes that the expression “touristichas the meaning defined in section 2(1) of the Tourism Industry Act 1992, which refers to any person, whether a Malaysian national or not, visiting any place in Malaysia to any of the following purposes: (a) pleasure, recreation or vacation; (b) cultural; (c) religion; (d) visiting friends or relatives; (e) sports; (f) business; (g) meetings, conferences, seminars or conventions; (h) studies or research; or (i) any other purpose that is not related to a remunerated occupation by the place visited.
In view of the above, a “tourist” would be, for the purposes of the main law and the amending law. include a person who visits any place in Malaysia, even for business purposes or for study or research.
However, it should be noted that the Minister of Finance issued the Tourism Tax (Digital Platform Service Provider) (Exemption) Order 2021 which exempts a tourist who is a Malaysian citizen or permanent resident of Malaysia from paying the tourist tax charged by a digital platform service provider.
The amending law
Some key changes made to the main law under the amending law are as follows:
- A tourist tax will now be charged and levied on a tourist staying at any accommodation in Malaysia that is made available through the services provided by a digital platform service provider;
- Various obligations are imposed on a digital platform service provider, including the following:
- collect the tourist tax from a tourist who books accommodation via its online booking platform;
- to provide declarations relating to the tourist tax collected and to pay this tax to the Director General of Customs and Excise of Malaysia (‘General director‘) on a quarterly basis (or such other period as may be extended by the Director-General upon request in a particular case); and
- to register with the Managing Director – in this regard, the new Section 20C(3) of the Principal Act obliges a digital platform service provider who has provided online booking services for accommodation premises in Malaysia before April 1, 2021 to register with the Director General no later than three months before July 1, 2021.
- To avoid that the tourist tax is imposed twice on a tourist, the main law is amended to provide that the operator of the place of accommodation is exempt from collecting the tourist tax from a tourist who has paid tourist tax to a digital platform service provider.
- As the obligation to collect and account for tourist tax is imposed on a digital platform service provider operating inside or outside Malaysia, new provisions are introduced to give extraterritorial effect to the main law and its subsidiary legislation. In other words, they apply beyond the geographical limits and territorial waters of Malaysia and to everyone, regardless of their nationality or citizenship.
To solve the transitional problems, article 21 of the amending law provides that the tourist tax will not be charged to a tourist who stays in a place of accommodation from July 1, 2021 if the online reservation has been made. from a digital platform service provider before the above date. .
Tourist Tax (Digital Platform Service Provider) Regulations 2021
To give effect to the provisions which impose on digital platform service providers the obligation to collect and account for tourist tax, the Tourist Tax (Digital Platform Service Provider) Regulations 2021 (‘the rule‘) were published in the Official Journal on March 31, 2021 and entered into force the following day.
Among other things, the Regulations provide for the following:
- the procedure for registering a digital platform service provider;
- the terms and conditions for issuing credit notes and debit notes by a digital platform service provider, the time limit for doing so and the particulars to be included in a credit note or debit note;
- the method of payment of the tourist tax or penalty due under the principal law;
- the procedure for requesting a refund; and
- the forms or declarations to be used for the matters set out in paragraphs (1), (3) and (4) above.
In addition, the Regulations require a digital platform service provider to notify the senior customs officer in writing of any changes:
- in the name of the company;
- at the address of any place of business;
- in the statute of the company; or
- of the authorized person or their contact details.
Pursuant to the provisions of Article 62 of the Principal Law, the Regulations set out the rules governing the use of an electronic service to be provided by the Director General for the filing or provision of any application, declaration or other document and the service of any notice, instruction, receipt or other document.
A Digital Platform Service Provider operating outside Malaysia should note that the Regulations state that Malaysian Standard Time (UTC/GMT +8 hours) is the applicable reference time for the purpose of receiving reports and payment of tourist tax or penalty. Thus, filing deadlines should be determined by reference to Malaysian Standard Time and not the local time of the place where an overseas service provider conducts business.
The changes introduced under the amending law recognize the important role played by digital platforms in the booking of accommodation premises by tourists. Since payment for accommodation premises will in most cases be made at the time a tourist makes an online reservation on a digital platform, the Malaysian government has taken steps to impose an obligation to collect tourist tax to the service provider of the digital platform in place of the operator of the accommodation premises.
In view of the obligation imposed on foreign digital platform service providers to collect and account to the Malaysian government for the tourist tax owed by tourists who book accommodation in Malaysia through their platforms, the operators of these platforms, such as that Airbnb, Hotels.com and Booking.com, will need to register with the Chief Executive and fine-tune their online reservation systems to comply with the requirements introduced by the amending law and regulation before July 1, 2021.