Recommendations not Implemented: Addressing the failure of Notaries to transfer property duties and taxes received to the Commissioner for Revenue

Pursuant to Article 22(4) of the Ombudsman Act, the Parliamentary Ombudsman Judge Emeritus Joseph Zammit McKeon submitted a report to the House of Representatives concerning cases where notaries public, having received payments for duties and taxes due on property transfers, failed to transfer these amounts to the Commissioner for Revenue (CFR).

The Case

Complaints were lodged against the Office of the Commissioner for Revenue following instances where notaries failed to transfer stamp duty and capital transfer taxes due on published deeds to the CFR. Complainants, having already paid these taxes, felt aggrieved by the CFR’s policy to request repayment of said dues, as they considered this request to be in violation of their human rights, and sought an exemption from repayment.

The Investigation

The investigation involved various ministries and entities amongst which the Public Registry that highlighted its inability to register deeds without confirmation from the CFR that tax payments had in fact been effected. The CFR maintained that it is not responsible for the notaries’ failures to notify and pay taxes and that existing legislation provides a remedy to those in complainants’ situation.

Observations by the Ombudsman

The Ombudsman observed that parties acting in good faith were being unfairly prejudiced due to the notaries’ failures, affecting their property registration rights and enjoyment of the said property. The Administration’s approach to redirect them to court for resolution, thereby forcing them to incur additional expenses, was criticised. The Ombudsman considered the government’s refusal of responsibility illogical, given that in this instance notaries are considered by law to be acting as public officers.

Conclusions and Recommendations

While acknowledging the current legal constraints, the Ombudsman criticised the Public Administration for neglecting the plight of those in complainants’ situation The CFR’s position resulted in double payments, adding financial burdens on purchasers. Recommendations included prompt redress for affected parties, discussions for legal and policy reforms to protect service users, and enhancing the Notarial Council’s resources for improved oversight.

Outcome

Following the Final Opinion issued on 25th January 2023, which included various recommendations to address the situation and provide adequate redress to complainants and others similarly affected, the involved Ministries informed the Ombudsman that the Opinion was under consideration, with consultations ongoing for potential solutions to be created. However, as no progress was evident by July 2023, the matter was escalated to the Prime Minister. On 17th October 2023, the Ombudsman sought a definitive response by the end of the month to avoid the need for further action in terms of Article 22(4) of the Ombudsman Act. The Office of the Prime Minister reported coordination with the main concerned ministries, but no further update was provided.

The Ombudsman considered the response to the Final Opinion unsatisfactory, as it failed to address the grievances highlighted. Consequently, in accordance with Article 22(4) of the Ombudsman Act (Chapter 385, Laws of Malta), the Final Opinion and relevant documentation were brought to the attention of the House of Representatives on 28th November 2023.

Documents:

  1. 25.01.23 – Final Opinion U0123
  2. 25.01.23 – Final Opinion U0098
  3. 24.02.23 – Reply from the Ministry for Justice
  4. 14.07.23 – Letter to the Prime Minister
  5. 17.10.23 – Email to OPM Governance Action Directorate
  6. 171023 – Email from OPM – Coordination and Implementation
  7. 28.11.23 – Letter to the Speaker of the House
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