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INSIGHT: Finding Your Way Through MAP With New Dutch Guidance

July 29, 2020, 7:01 AM

On June 11, 2020, the Dutch Ministry of Finance issued a new Mutual Agreement Procedure (MAP) Decree, laying out what the process is to obtain competent authority assistance and in particular, updating the process to adapt to the minimum standard of OECD BEPS Action 14, integrating access to the new European Arbitration Directive as implemented in Dutch law into the Dutch MAP process, and integrating the OECD’s Multilateral Legal Instrument (MLI) MAP agreements and changes into the decree.

The previous MAP decree dated from 2008, and while the new decree added some procedures it also eliminated some of the instructions included in the previous one. The coordination between MAP and court filings is explained and elaborated on, situations where a statute has run and the tax authorities have discretionary authority to provide for a corresponding adjustment, and triangular cases are discussed. Explicit early or accelerated competent authority access has for all practical purposes been eliminated, however.

PROACTIVE ASSISTANCE

If anything, and while there is no user fee for MAP (or rulings and Advance Pricing Agreements (APAs) for that matter) in the Netherlands, the new decree promises (continued) pro-active assistance by the Dutch competent authority with respect to MAP requests. Relieving double taxation is considered an important service for the Dutch competent authority that it wants to provide swiftly, assuming that the treaty partner involved is willing to cooperate.

The decree makes clear that the process is and remains a government-to-government process, in which the Dutch authorities endeavor to resolve double taxation within a two-year period, but do not have an obligation to avoid double taxation. Whether that position can be sustained by EU Member States, is a relevant question considering that EU case law has hinted that double taxation is a violation of the basic principles underlying the common market. (For example in Lankhorst-Hohorst GmbH v. Finanzamt Steinfurt, Dec. 12, 2002, C-324-00.)

Internationally, there has been mounting pressure for competent authorities to accept taxpayers in the MAP process and to actually resolve double taxation. Some clear progress has been made in this respect. In 2015 the Italian Supreme Court held that a taxpayer could appeal a denial of access to MAP under the European Arbitration Convention. The 2015 OECD BEPS Action 14 Final Report focusing on making dispute resolution and avoidance of double taxation more effective, also emphasized allowing taxpayers into MAP and the good faith application of the MAP article. In The Netherlands, the Amsterdam lower court determined that a rejection by the competent authority to accept a MAP request filed by an individual constituted an administrative act, eligible for objection and judicial review. (Rechtbank Amsterdam July 25, 2017, ECLI:NL:RBAMS:2017:9099.) These developments do not lead to an instruction to resolve double taxation, but do clarify that taxpayers have a right to request access to the MAP process. In practice, it was not uncommon for tax inspectors to offer taxpayers (more favorable) audit settlements, provided the taxpayer would not proceed with MAP, discouraging or de facto blocking taxpayer access to MAP. That practice is addressed in the new decree and it is made explicitly clear that settlement agreements can be put aside in MAP.

The decree covers all MAP requests; those regarding transfer pricing matters and all other interpretative matters, including dual residence/tie-breaker cases. Under the MLI, which was signed (June 7, 2017) and ratified (March 29, 2019) by the Netherlands, a provision where dual residency of non-individuals is determined by way of mutual agreement was opted for. (Decree of Dec. 9, 2019, 2019-25404) This means that any dual residency cases not yet adjudicated or addressed earlier, as of Jan. 1, 2020, will be determined under a new MAP tie-breaker rule in those treaties where both treaty partners have signed and ratified the MLI and chosen that option.

In general, the decree and the discussed MAP processes distinguish transfer pricing cases from interpretative cases. The former address income allocation to permanent establishments and the arm’s-length conditions of transactions between associated enterprises. The decree also addresses the processes for bilateral advance pricing agreements (BAPAs) and multilateral advance pricing agreements (MAPAs), which are not discussed in this article.

The MAP process is intended to be used for taxation matters, and not for addressing social security levies. The decree also does not serve to expand, change, or reduce rights and obligations resulting from bilateral or multilateral arrangements.

Mention is made that entering MAP may very well be avoided. In a transfer pricing matter, this can be done by requesting the competent tax inspector for approval to implement a corresponding adjustment. This can be initiated by filing an amended return, by filing an objection against the relevant tax assessment, or by requesting discretionary relief. The Dutch tax inspector must obtain binding advice from the Coordination Group Transfer Pricing in such cases. A rejection by the tax inspector to approve a corresponding adjustment can be submitted for judicial review or can be submitted to MAP.

If the corresponding adjustment relates to a closed year for which the tax inspector has no discretionary authority to implement the adjustment, the Under Minister of Finance, in the decree, formally approves that the tax inspector can apply the corresponding adjustment regardless of the five-year statute of limitation for granting discretionary relief, provided the taxpayer in all reasonableness could not have implemented the corresponding adjustment earlier, the taxpayer would have qualified for access to MAP at the time of requesting a corresponding adjustment and a MAP request would have led to the same outcome, namely that a corresponding adjustment would have been made without pursuing full MAP discussions.

The MAP process is also available for any difficulties or doubts arising as to the interpretation or application of the relevant treaty, and the competent authorities explicitly may consult together for the elimination of taxation in cases not provided for in the treaty, if that relevant treaty has a provision along the lines of OECD Model Article 25 paragraph 3. The decree references two instances from 2018 where such consultations led to bilateral agreements, for example with respect to the tax treatment of Dutch pensions for Belgium residents and the tax treatment of Dutch and Swiss investment vehicles in, respectively, Switzerland and the Netherlands.

THE ‘MAP’ PROCESS

The MAP process commences with a request by the taxpayer. It can be commenced in addition to other national remedies. As a rule of thumb, a MAP request in general ought to be submitted to both the relevant competent authorities at the same time, regardless whether it is filed under (the Dutch law implementing) the EU Arbitration Directive (EUAD), a treaty for the avoidance of double taxation, or the EU Multilateral Arbitration Convention (EUMAC). Under a bilateral treaty, generally the instruction is to file in the country of residence, and individuals and small enterprises may file only in the country of residence under the EUAD, as the request will then be forwarded by the competent authority to the other EU Member State.

The decree summarizes in an Annex A and B, what information must be included in a MAP request. Annex A regards information required for a MAP request under the EUAD, and Annex B regards information required for a MAP request filed under a bilateral treaty for the avoidance of double taxation and under the EUMAC. In addition, the Ministry of Finance has made a website form available listing information needed for filing transfer pricing cases that can be downloaded and filled out. Without that information, the MAP request may be rejected, although a taxpayer will be granted the opportunity to cure any omissions before that decision is made definitive. It should be noted that it is recommended to prepare a MAP request with more consideration than just by merely ticking the information boxes, however. An objective and polite legal narrative will be much appreciated and can greatly assist the relevant competent authorities in addressing the issue at hand more swiftly and achieving an optimal result when seeking resolution of double taxation.

This will generally be the extent of taxpayer involvement in the MAP process, unless further information is requested by the respective competent authorities.The Dutch competent authority may involve and obtain advice and assistance during the MAP process from the Revenue Service and Coordination Group Transfer Pricing, however.

Time to submit a MAP request

As already stated above, the decree identifies access to MAP based on three instruments:

1. The Dutch law implementing the EUAD,

2. A treaty for the avoidance of double taxation, and

3. The EUMAC.

Under the implementation of the EUAD, a MAP request can be filed provided the case regards a dispute relating to income or assets in calendar years 2018 (on or after January 1,2018) or later. The EUAD offers access to arbitration in case the competent authorities have not resolved the case within two (or three) years. The taxpayer can initiate the arbitration process itself by going to court and if one of the States would deny access to MAP, the matter can be submitted to arbitration to determine if that denial was correct. If both States would reject access to MAP, the taxpayer can go to court to challenge that decision as well.

MAP based on a bilateral treaty for the avoidance of double taxation in the Netherlands is a common occurrence. In 2018, the Netherlands recorded an end-inventory of 321 MAP cases. At least 200 of those were other than transfer pricing cases, while for the transfer pricing cases, it may be that some of those include EU Multilateral Arbitration Convention-based cases. These bilateral treaties may also have bilaterally negotiated arbitration clauses, or may have an arbitration clause based on the MLI.

MAP based on the EUMAC is also available. This multilateral convention is available exclusively for transfer pricing matters, and specifically allows a permanent establishment located in an EU Member State to file for MAP regarding transfer pricing adjustments related to transaction with an associated enterprise in another EU Member State.

The time period within which a MAP request must be filed may differ under the respective available instruments. Under the EUAD, this is within three years of the day of first notification of an action that gives (or will give) rise to double taxation; under a bilateral treaty this tends to be at least three years after the date of first notification, although each and every bilateral treaty will need to be individually consulted to ascertain the exact time period, and under the EUMAC it is (also) three years from first notification of a measure that results in (or will result in) double taxation as described in the EUMAC. In the Netherlands, the “first notification” clause is clarified in a taxpayer favorable way, meaning that a MAP request will be timely if it is filed within three years after the date of the official tax assessment in which the adjustment is captured, or within three years of receipt of the motivation for that adjustment, provided such date is after the formal tax assessment.

The decree does not elaborate at great length on early MAP filings or extension of MAP agreements to later years, i.e. accelerated competent authority procedures, also referenced as “ACAP” in the U.S. competent authority revenue procedure. (Revenue Procedure 2015-40) Early filings regard the situation where based on an audit, it is expected that an adjustment causing double taxation will result and some form of protective MAP request is filed. While previously, the competent authority accepted early MAP requests, the new decree is more standoffish and provides that it will need to be considered if such a filing is sufficiently ripe to start MAP discussions. As regards extending MAP to later years, mention is made that a MAP decision has no precedential value, but continued application may be considered for transfer pricing purposes. It would not be considered for other matters. In that case, the MAP outcome would be captured in an APA or BAPA.

The very same way the taxpayer initiated the MAP process with a request, the taxpayer can retract a MAP request and halt the MAP process.

Review of the MAP request and Resulting Decisions

The competent authority will review the request and consider whether it can be accepted.

  • Communication re-acceptance/rejection

Under an EUAD-initiated MAP request, the competent authority must decide within a six-month period, whether the request is adequate to proceed. Without any response within that period, the MAP request can be deemed accepted. Rejection of the request is only possible if (i) the information provided is not adequate and the omission of not providing adequate information was not corrected timely by the taxpayer; (ii) if the dispute does not qualify under the EUAD; (iii) if the request is submitted outside the time within it should have been submitted, or (iv) if the request is not submitted in the Dutch or English language.

Under a treaty for the avoidance of double taxation and under the EUMAC, a MAP request must be reviewed and a rejection of a MAP request must be communicated within eight weeks of receipt of the submission. This term will be halted if the information required (Annex B) was not provided, as the taxpayer will be granted a reasonable time for the opportunity to add the requested information. If no such information is received, there will be one more reminder to submit missing information, and if there is no reaction to that second request, the MAP request will be rejected.

In case a request is rejected, a MAP request filed under the EUAD is not eligible for objection or appeal, unless the MAP request was rejected by both (or if more, all) competent authorities. In that latter case, there is room for objection and appeal against the rejection. The time period for submitting an objection commences the day after the taxpayer has received the rejection. There is no obligation to object and appeal in both (or all) jurisdictions. There is access to arbitration with respect to the denial of access to MAP, in case only one competent authority rejects the MAP request filed under the EUAD.

In the event of a MAP request filed under a treaty for the avoidance of double taxation or the EUMAC is rejected, that decision in and of itself is an administrative act, eligible for objection.

  • After acceptance of request: unilateral relief or bilateral discussions

Once a MAP request filed under the EUAD is accepted, usually a bilateral phase commences during which the Dutch competent authority enters into discussions with the other competent authority. Alternatively, the Dutch competent authority may also decide to grant unilateral relief for double taxation, within a six-month period after accepting the MAP request, or within six months after having received additionally requested information. The solution in that case will be implemented by way of a determination agreement, and the case closed.

A MAP request filed under a treaty for the avoidance of double taxation of under the EUMAC that if accepted, it will be determined if unilateral relief can be provided. If that is possible, no bilateral discussions commence and the matter will be handled and finalized through discussions with the competent tax inspector. If the case cannot be resolved unilaterally, the bilateral phase of the MAP commences.

  • Time period for invoking arbitration

The target time to finalize/complete a MAP request is two years, consistent with the OECD BEPS Action 14 minimum standard of 24 months. That said, experience shows that MAPs can take (significantly) longer than that. The relevant arbitration provisions provide at what time they may be invoked when MAP discussions do not lead to timely resolution of the matter.

In the EUAD, that time period is two years from the date that the MAP request was accepted by the competent authority, while a one-year extension of that time period may be requested. In case of a bilateral EUAD request, the two-year term starts to run on the date after the latest competent authority has accepted the MAP request.

Under a treaty for the avoidance of double taxation, the time after which arbitration may be involved to resolve the matter is generally determined in the arbitration provision itself, if the treaty has such an arbitration provision. In case arbitration is available based on the MLI, the time to invoke arbitration commences at the earliest of (i) the moment that both competent authorities have informed the taxpayer that the MAP request was received and is considered to provide sufficient information to be accepted; and (ii) when three months have passed after the competent authority has informed the other competent authority of the request. The MLI assumes that the time after which arbitration can be invoked is two years, although States may extend that to three years. The running of the time period is halted and commences later in case the competent authorities require and ask the taxpayer for additional information. In treaties that are not subject to the MLI and no time period is provided, the Netherlands aims to apply the two-year period of the MLI.

Under the EUMAC the time period for invoking arbitration commences once the request has been received and is complete (an after requested information has been received). The MAP phase is generally two years, but can be extended upon request and if the taxpayer agrees. In case the matter is also subject to a domestic procedure for relief, the two-year time period will only start to run once the domestic procedure has been completed at its highest level of review and is final.

  • The respective MAP phases

The respective MAP cases can be divided in a (1) pre-discussion phase (when unilateral decisions can be made, see (ii) above; (2) a bilateral MAP discussion phase; and (3) a post discussion phase. During the pre-discussion phase, the MAP request gets filed by the taxpayer and or his/her representative; the notification is provided regarding acceptance of the request or whether further information is required, the actual request is reviewed on its merits and a decision is made on whether the matter can be resolved unilaterally or should proceed to the next phase.

During the bilateral MAP discussion phase (which is not elaborated on in the respective MAP instruments, but usually agreed bilaterally between treaty partners), in case of a transfer pricing matter, a position paper is prepared by the country that made the primary adjustment. The position paper will lay out the technical analysis of why the adjustment/fiscal position is correct or inconsistent with the treaty, the suggested resolution of the matter, and reference to relevant underlying documentation and facts.

Subsequent to the position paper, a discussion and further communication may take place regarding the matter to seek a solution.

Once a solution has been found, it will be presented to the taxpayer for acceptance within a reasonable time period. If accepted, the solution will be implemented, if rejected, the MAP terminates without any solution and the taxpayer may be at liberty to proceed with timely filed—yet halted—domestic procedures (discussed further in ”Simultaneous Procedures” below).

If the competent authorities cannot find an agreement, the taxpayer will be informed of that outcome as well and depending on the instrument under which the MAP request was filed, the taxpayer may have access to arbitration.

  • MAP outcome and its implementation

Under the EUAD, the taxpayer will be presented a determination agreement that includes binding and enforceable conditions regarding the final decision on the matter in issue. By signing the determination agreement, the taxpayer indicates acceptance, waives or revokes rights under any other procedures in this regard, and is bound by the agreement. The determination agreement will be conditional upon any other procedures or remedies being terminated within 60 days after signing the determination agreement. Based on the determination agreement, the taxpayer’s tax return will be adjusted upwards or downwards without regard for applicable statutes of limitation.

Under a treaty for the avoidance of double taxation or the EUMAC, the taxpayer will also be requested to enter into a determination agreement, in which the taxpayer is required to waive rights to any other procedures and remedies. As MAP cases may take some time, it is not impossible that the statute has run for the tax inspector to adjust an older tax year and the year is legally closed for further (tax) adjustments. In the case that the MAP outcome is that the Netherlands will provide relief from taxation in violation of the applicable treaty, this can nevertheless take place under the discretionary authority of the tax inspector. While this authority is generally restricted to a five-year period, most of the treaties the Netherlands has entered into provide that the outcome of a MAP can be implemented regardless any national statutes of limitation. In the rare event that no such provision is included in the treaty and the five-year discretionary authority is not sufficient to cover the relevant taxable year, the Under Minister of Finance, in the decree, formally approves that the tax inspector can apply the outcome of the MAP process, regardless of the five-year statute of limitation for granting discretionary relief.

  • Arbitration

In case no timely resolution is obtained during MAP, the taxpayer may be eligible for arbitration.

In case of a MAP request filed under the EUAD, arbitration is available two years (possibly extended to three years) after acceptance of the MAP request provided no agreement has been obtained between the respective competent authorities. Arbitration is also available if one of the competent authorities definitively maintains there is no access to MAP. The arbitration request must be submitted by the taxpayer.In case the competent authorities neglect establishing an arbitration committee, the taxpayer can request such in a summary proceeding.

The arbitration committee renders advice within six months. In case the arbitration committee was established because one of the competent authorities rejected access to MAP, the arbitration committee may decide the case must be accepted in MAP. If the competent authorities do not proceed with MAP, the arbitration committee may render advise on resolution of the dispute. If the arbitration committee is established because no timely solution was obtained within MAP, the decision term of the arbitration committee may be extended with another six months, to 12 months in total. Once the arbitration committee renders advice, the competent authorities may deviate from such advice, but if they do not come to an agreement, the arbitration committee advice becomes final. The final advice or decision will be implemented by way of a determination agreement, signature whereof indicates the taxpayer’s agreement and acceptance and includes a waiver of any further remedies or procedures in this respect. The determination agreement does not present any precedent.

In case of a MAP request filed under a treaty for the avoidance of double taxation or the EUMAC, there is a two-year term before arbitration can be invoked. The advisory committee that is to be established for that purpose has six months to decide on the matter, after which the competent authorities have six months to accept that decision or suggest an alternative decision that resolves double taxation. If no alternative decision is made, the advisory committee decision becomes binding.

SIMULTANEOUS PROCEDURES

It has proven to be challenging whether a taxpayer can file simultaneous procedures. This regards simultaneous filings of MAP with domestic procedures (objection/appeal/litigation) and the filing of simultaneous international procedures (MAP based on a bilateral treaty, based on the EUAD and/or based on the EUMAC).

Domestic remedies and MAP

In many countries, taxpayers had to exhaust their remedies before MAP could be invoked. Considering the deadline for filing a MAP request, this did not make the processes compatible.

As regards simultaneous MAP filings with domestic remedies, the new decree provides that domestic remedies must be terminated to file a MAP request under the EUAD. In case a MAP request is filed based on a treaty for the avoidance of double taxation, next to a domestic remedy, the competent authority will consult with the other competent authority on how to proceed. As regards a MAP request filed under the EUMAC, the Dutch competent authority likewise will consult with the other competent authority, plus that the (two-year) term for arbitration becoming available will only start running once the domestic remedy has been decided at highest judicial level and become final.

In some countries, the competent authorities cannot deviate from final decisions by the judiciary. This means that if a MAP request is filed under the EUAD including one of such countries, the MAP process may terminate in case a highest court decision has been rendered and become final. The MAP will not be finalized in that case. If, during the earlier MAP discussions the Dutch competent authority had concluded that relief of double taxation would be appropriate, it may decide to grant unilateral relief in such a case on an entirely discretionary basis. In this specific situation the Under Minister of Finance, in the decree, formally approves that the tax inspector may apply unilateral relief, regardless of the five-year statute of limitation for granting discretionary relief.

Simultaneous MAP requests under different instruments

As regards simultaneously filed instruments, the new decree makes clear that a taxpayer must decide up front under what instrument the MAP request is filed. In case the choice is made for the EUAD, by law, a MAP request filed on the basis of another instrument will terminate. This instruction means that taxpayers must be very careful and strategic when considering under which instrument they file for relief of double taxation. In particular if they envisage needing to go to arbitration when no MAP agreement can be obtained. The arbitration procedures under the respective instruments differ, and ignoring the differences may—admittedly only in in a worst case scenario—have fatal impact with respect to obtaining full avoidance of double taxation.

Similarly, in case a matter involves both transfer pricing adjustments and non-transfer pricing adjustments, at least in EU Member States, the issue arises as to under what instrument a request for MAP relief can be filed. The new decree acknowledges that the issue whether a Permanent Establishment (PE) exists can be submitted for MAP review under a bilateral treaty, yet that the determination of income allocable to such a PE, could be submitted for MAP review under the EUMAC, allowing it to be resolved by arbitration under that other instrument, if there would not be an agreement between the respective competent authorities on the PE income allocation down the line.

To benefit from such bifurcated approach, a taxpayer must make it very explicit that it is requesting such relief, however. In the decree, the Dutch Ministry of Finance expresses the viewpoint that a taxpayer’s option to obtain relief of double taxation by arbitration is probably best warranted under the EUAD, since a taxpayer can gain access to arbitration through judicial review. The decree adds that each and every time the specific arbitration process, rights and obligations under the respective instruments must be reviewed and compared, since certain penalties—even administrative ones—can exclude access to arbitration.

AUDIT SETTLEMENT AGREEMENTS AND PENALTIES

While access to MAP can be considered a taxpayer right, there are conditions under which MAP can be rejected. These conditions are generally provided for in the respective instruments themselves, such as the existence of penalties in the EUMAC and in the EUAD. The Dutch competent authority policy generally is that a penalty should not necessarily serve to exclude a taxpayer from MAP. If and to the extent the other competent authority involved is also willing to accept and proceed with the MAP request despite the presence of penalties, the Dutch competent authority will accept the request and proceed with reviewing the merits of the request.

As indicated above, audit settlements similarly do not present a barrier for MAP, according to the decree. The competent authority is authorized to set aside an audit settlement in MAP and resolve the case on its merits.

TRIANGULAR CASES

As integrated international transactions are common, the concept of triangular cases in MAP is becoming more common. A Dutch taxpayer may very well have entered into related transactions with group companies in different States. If one of the States involved makes a transfer pricing adjustment, the impact thereof will likely be on several other associated enterprises of the group. This can happen for example in case the Dutch entity is the least complex entity in the group, remunerated on a return on total cost (ROTC) basis. If the Dutch entity sells products to an associated distributor, and the distributor margin is adjusted upwards by local tax authorities, that means that to avoid double taxation, the Dutch entity’s selling price ought to be reduced, leaving it a lower margin than it at arm’s-length should make.

To make sure the Dutch entity continues to operate at arm’s-length, the cost of inputs it received from associated enterprises will have to be adjusted downward to correspond to the upward adjusted profit margin of the associated distributor. In cases like this, both the distributor State as the State of the associated enterprise that sells the inputs need to be included in the MAP request. The decree provides that the Dutch authorities will only allow for a corresponding adjustment in such a situation, if the Dutch entity will continue to report an arm’s-length return. In cases like that, the taxpayer will be notified of this and that notification can serve to file a MAP request with the third country.

EXTENSION OF PAYMENT

In cases where a Dutch tax adjustment or fiscal interpretation causes the double taxation, the taxpayer will be granted an extension of payment of taxes due for that part of the taxes due that leads to double taxation. In case of a filed objection that is handled in MAP, an automatic extension of payment is granted. In other cases, an extension of payment can be requested. The extension will normally be granted until the domestic and international procedures to resolve the dispute have been finalized. The process is akin to that applied in case of an objection filed against a domestic tax assessment. While the extension will trigger collection interest, it should help avoid financial challenges for the taxpayer during the MAP and arbitration proceedings. In certain cases an extension of payment may even be granted if another State made the primary adjustment or caused the double taxation. The same applies with respect to any penalties that are the subject of a MAP proceeding.

When submitting a MAP request, taxpayers may also submit a request for reduction of the applicable collection interest provided it is well supported and quantified. If the taxpayer is not at fault with respect to the issue submitted under MAP, the collection interest may be reduced based on principles of reasonableness. The collection interest will usually be reduced to the level of the refund interest applicable in the foreign jurisdiction. If the outcome of the MAP leads to a foreign tax refund that is taxed substantially lower in the foreign jurisdiction than it would have in the Netherlands, the reduced collection interest will only be applied to the amount of the foreign refund. Often these calculations can only be conducted once the outcome of the MAP process is available. In those cases, the request for extension of payment and reduction of collection interest ought to be amended and updated within three weeks after the solution for the double taxation is presented for approval to the taxpayer.

CONCLUSION

All-in-all the new Dutch guidance is comprehensive and helpful. The takeaway is that filing a MAP request has become a far more surgical procedure than it previously was considered to be, however. While there is undisputedly more and easier access to MAP, taxpayers will need to carefully consider the routes through the MAP process offered by the different instruments up front, to not lose sight of the trees while in the woods. In addition, statutes of limitations and time to file need to be carefully monitored while domestic remedies, safeguarding access to arbitration, extension of tax payments and late payment interest will also need to be considered. Just throwing a request for relief of double taxation under MAP “over the fence” and letting the competent authorities deal with it may be attractive, but not necessarily in a taxpayer’s best interest.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Monique van Herksen is a tax partner with Simmons & Simmons, specialized in transfer pricing, contentious tax and obtaining avoidance of double taxation. She can be reached at monique.vanherksen@simmons-simmons.com.

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