How-to: Tax Filing For Retrenched Employees In Malaysia

How-to: Tax Filing For Retrenched Employees In Malaysia

There has been a wave of retrenchments in Malaysia, which started last year, and signs are pointing that it will continue through 2016.

According to the Malaysian Employers’ Federation (MEF), more than 20,000 employees in Malaysia were laid off in 2015. These lay-offs came from across the board, covering key sectors like oil and gas, banking, retail and manufacturing, the MEF reported.

Its president Datuk Shamsuddin Bardan explained that this was due to numerous factors, including the depreciating value of the Ringgit, escalating cost of living and the lack of new job openings.

He pointed out that in 2015, the Federal Government also imposed a hiring freeze on the civil service sector, and this has cost Malaysians some 15,000 jobs.

Comparatively, the figure for retrenchment for the entire 2014 was 10,000 employees.

What is retrenchment?

It is a strategy adopted by companies or corporations to reduce the diversity or the overall size of its operations. This strategy is often used to cut expenses with the goal of becoming more financially stable.

Typically, the strategy involves withdrawing from certain markets or reducing manpower as part of a cost restructuring plan. In a retrenchment exercise, companies can lay off workers due to cost, business or operational factors.

According to a Forbes report in October 2015, the “great depression” in the oil market has claimed over 200,000 jobs worldwide, with 2% of the casualties from Malaysia.

The sudden loss or lack of income isn’t just a terrifying prospect, it also means an increase in non-performing loan (NPL) in the country, resulting in higher debts for individuals, especially for people with financial obligations such as a home loan or a car loan.

What happens when you get retrenched?

One of the first things to ask after you’ve been laid off is whether you are entitled to any termination benefits after the end of the employment relationship.

As an employee, your right to a termination benefit upon retrenchment depends on whether or not you are covered by the Employment Act (EA).

In general, an employee is only covered by the EA if their wages do not exceed RM2,000 a month, or if their occupation is a manual one, irrespective of how much they earn.

If an employee falls within the scope of the EA, he is entitled to termination benefits if he has been employed for at least 12 months. The termination benefits payable are as follows (or the amount in the employment contract if it is higher):

  • 10 days’ wages for every year of employment if he has been employed for less than two years
  • 15 days’ wages for every year of employment if he has been employed for two years or more but less than five years.
  • 20 days’ wages for every year of employment if he has been employed for five years or more.

Meanwhile, an employee who is not covered by the EA is only entitled to termination benefits if it is provided in the employment contract. If it is not stipulated in the contract, then it is up to the employer’s discretion on how much termination benefits to pay, or whether or not to pay.

According to the Inland Revenue Board Malaysia (LHDN), when an employment ceases, the employer may make a lump sum payment to the employee. The lump sum payment may be described by the employer as compensation for loss of employment, ex-gratia, contractual payment, retrenchment payments or gratuity, etc.

However, one should note that gratuity is not the same as “loss of employment” in this context, SIMways Formulation’s consultant Choong Hui Yan points out.

For one, gratuity is normally referred to as a fixed amount that is presented in recognition of an employee’s services. As such, gratuity is normally paid upon an employee’s resignation or retirement after serving for a long period of time.

“It is to recognise the past services rendered by an employee,” said Choong.

Meanwhile, retrenchment is linked to a loss of employment as the employee is being laid off prior to the end of the contract of service, Choong added.

She explained, “Under Malaysia’s taxation system, gratuity would be taxed under s13(1)(a) while the loss of employment would be taxed under s13(1)(e) of the Income Tax Act 1967. Both come with different types of tax exemption.

In any case, the circumstances and nature of the payment must be reviewed to determine the real character of the payment. The amount paid on the termination of an employment may consist of the following two elements: (a) it is attributable to the loss of employment such as redundancy (compensation); and (b) it is attributable to the past services of the employee (gratuity).

The purpose of the lump sum payment has to be established in order to determine the tax treatment of the payment received by the employee.

However, it is important to note that some employers may carry out termination disguised as retrenchment as a way of dismissing unwanted employees. If you feel that you have been unfairly retrenched, you can bring a claim against the employer by making a complaint or claim to the Department of Industrial Relations Malaysia, Industrial Court, Civil Courts or Labour Court.

Meanwhile, employers who are carrying out retrenchment due to serious financial difficulties may be excused from paying retrenchment benefits.

How to file your taxes when you get retrenched?

According to LHDN on their website, compensation for the loss of employment is a payment made by an employer to his employee before or after the date of termination, and a certain amount of this payment is exempted from tax.

This compensation is exempted from tax if compensation received is due to ill health, and the other cases:

  • Termination before July 1, 2008 – exemption of RM6,000 for every completed year of service with the same employer or with companies in the same group.
  • Termination on or after July 1, 2008 – exemption of RM10,000 for every completed year of service with the same employer or with companies in the same group.

Adam was working in his previous oil-and-gas company for five years, and was recently retrenched. He received RM60,000 in compensation in 2015.

Under local tax laws, he is entitled to RM10,000 exemption for each completed year of service. So if he serviced the company for five completed years, RM50,000 out of the RM60,000 he received is entitled for tax exemption (RM10,000 x 5).

However, compensation received by a director (not service director) of a Control Company is fully taxable.

Should complications occur when you get retrenched, SIMways Formulation’s consultant Choong Hui Yan advises you to collect ALL the documents that you can get your hands on to prove that the lump sum payment you receive is a compensation for loss of employment. For example, you will be required to show a letter of dismissal, contract, or even the description of the payment voucher, then discuss the matter with LHDN.

Further, you will be required to present your pay slip and EA form to prove that you have completed your said tenure of services to the LHDN.

“Sometimes, our interpretation of “termination benefits” may differ from the LHDN. Thus, should any complication occur, you must try to explain the issue with LHDN. If necessary, you may even need to engage a tax specialist to talk to LHDN,” advised Choong.

income tax guide malaysia 2016

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