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Table of Contents
Cover
Title
Copyright
Acknowledgements
Foreword
Part One: Paragraph 1 of Article 25 of the OECD Model
Chapter 1: Paragraph 1 of Article 25 of the OECD Model - Persons Entitled to MAP
1.1. Introduction
1.2. Persons entitled to make the MAP request in transfer pricing situations where two separate taxpayers are involved
1.3. To which competent authority should the request be made, considering the difference between the wording of article 25(1) under the OECD Model (2017) and the UN Model (2017)?
Chapter 2: Actions of One or Both Contracting States
2.1. Introduction
2.2. Historical evolution of the term "action"
2.2.1. The 1920s works of the League of Nations and the Rome Double Tax Convention
2.2.2. The Mexico and London Draft Conventions
2.2.3. The work of the OECD
2.3. The guidance included in the Commentary
2.3.1. Change to a contracting state's tax law
2.3.2. Return in a self-assessment system
2.3.3. Audit
2.3.4. Transfer pricing and amended tax return
2.3.5. Judicial decisions
2.3.6. Other examples: APAs and audit settlements
Chapter 3: The Meaning of "Result or Will Result inTaxation Not in Accordance with the Provisions of This Convention"
3.1. Introduction
3.2. From an objective to a subjective condition
3.3. The phrase "result or will result"
3.4. The phrase "in taxation not in accordance with the provisions of this Convention"
3.5. Conclusion
Chapter 4: Time Limits for Submitting the Case
4.1. Introduction
4.2. Historical evolution of the provision
4.2.1. The Draft OECD Model (1963)
4.2.2. The OECD Model (1977)
4.2.3. The 2008 Update to the OECD Model
4.3. Overview of current treaty practice
4.4. The computation of the 3-year time limit
Chapter 5: Acceptance and Denial of MAP Requests and Related Remedies
5.1. Introduction.
5.2. Why is access/denial of MAPs an issue? The special nature of MAPs and arbitration in tax treaties
5.3. Judicial control of the decision of denial of access to the MAP
5.4. Access/denial of access to MAP in the MEMAP, BEPS Action 14 Minimum Standard and article 25 of the OECD Model
5.4.1. Preliminary remarks
5.4.2. The MEMAP (2007)
5.4.3. BEPS Action 14 (2015): An overview
5.4.4. MLI (2016)
5.4.5. Article 25 of the OECD Model: Access and exceptions to access to the MAP
5.4.5.1. Facilitating access to MAP (new drafting of article 25(1) of the OECD Model) and communications of "denials of access" to the other competent authorities
5.4.5.2. Good faith creates a presumption in favour of MAP access
5.4.5.3. Exceptions to MAP and the presumption of MAP access
5.4.6. A final reflection on the Commentary on Article 25 of the OECD Model and access to MAP
5.5. The 2021 public consultation on BEPS Action 14 and some countries' position: Remaining obstacles to MAP access
5.5.1. The OECD public consultation in 2021: Defining MAP access, common documentation and suspension of collection of tax debts during the MAP
5.5.2. The input received by the OECD in the public consultation
5.5.3. The position on access to MAP in some countries and its connection with arbitration
5.5.4. Conclusion
5.6. The remedies against denial of access (including the interaction of MAP access and bilateral investment treaties)
5.6.1. Introduction
5.6.2. Consultation with the other competent authorities on admission of MAP requests
5.6.3. Corresponding adjustments
5.6.4. Domestic courts and the solution in the Dispute Resolution Directive
5.6.5. Mediation/ombudsman intervention for access to MAP
5.6.6. Bilateral investment treaties.
5.7. Access/denial of access to MAP: An assessment of the current situation and the need for a fresh approach
5.8. Annex 1: BEPS Action 14: Minimum standard and access to MAP
5.8.1. Minimum standard
5.8.2. Best practices
Part Two: Paragraph 2 of Article 25 of the OECD Model
Chapter 6: Judicial Control of the MAP Process
6.1. Introduction
6.2. MAP issues within tax litigation
6.2.1. Would the alleged mismanagement of a MAP procedure affect the legality of taxation?
6.2.2. Is a MAP agreement binding for tax courts?
6.2.2.1. If the taxpayer refuses the MAP agreement
6.2.2.2. If the taxpayer accepts the MAP agreement
6.3. MAP issues outside tax litigation
6.3.1. Direct litigation against MAP procedures
6.3.1.1. Is court action possible against decisions denying access to a MAP?
6.3.1.1.1. Admissibility of applications
6.3.1.1.2. Reasons for the denial of a MAP request
6.3.1.1.3. Margin of appreciation by tax administration
6.3.1.1.4. Efficiency of litigation
6.3.1.2. Is court action possible against a lengthy MAP or a failure to reach an agreement?
6.3.1.3. Is court action possible for the taxpayer against a MAP agreement on the grounds that it violates the tax treaty?
6.3.2. Court action claiming compensation for the mismanagement of the MAP process by the tax administration
6.4. Conclusion
Chapter 7: A Judicial Experience on MAPs in the Context of the Domestic Legal System
7.1. Introduction
7.2. The MAP and domestic proceedings in the Netherlands - Some general aspects
7.3. Interaction between MAPs and domestic legal proceedings in the Netherlands
7.4. Judicial control of the MAP process in the Netherlands
7.5. Personal judicial experience with MAPs
7.6. Final remarks
Part Three: Paragraphs 3 and 4 of Article 25 of the OECD Model.
Chapter 8: The Resolution of "Difficulties" or "Doubts" Related to the Interpretation and Application of a Tax Treaty and Consultation in Cases Not Provided for in the Treaty
8.1. Introduction
8.2. Historical background on article 25 of the OECD Model and in particular on article 25(3)
8.2.1. The 1928 League of Nations Draft Conventions
8.2.2. The Mexico (1943) and London (1946) Draft Conventions
8.2.3. The 1963 OECD Model and beyond
8.3. The first sentence of article 25(3) of the OECD Model: Resolving difficulties or doubts in the interpretation or application of the tax treaty through the MAP
8.3.1. General
8.3.2. The competent authorities are not allowed to change the treaty
8.3.3. Cases in which the competent authorities can conclude an interpretative mutual agreement
8.3.3.1. General
8.3.3.2. Doubts and difficulties regarding the application or interpretation of the treaty
8.3.4. The Commentary on Article 25 of the OECD Model
8.3.4.1. General
8.3.4.2. The phrase "difficulties arising from the application"
8.3.4.3. Difficulties of interpretation
8.3.4.4. Commentaries on other articles of the OECD Model
8.3.4.5. Difficulties and doubts according to the 2016 US Model
8.3.4.6. Double taxation and double exemption: Difficulty regarding the application or interpretation of a treaty
8.3.5. The relationship between the first sentence of article 25(3) of the OECD Model and article 3(2) of the OECD Model
8.3.5.1. General
8.3.5.2. Qualification conflicts
8.3.5.3. Interpretative mutual agreement is part of the treaty context
8.3.6. Testing by the judge
8.3.6.1. Marginal test
8.3.6.2. Relationship with former supreme judge decisions.
8.3.6.3. Further illustrations of a judge independently interpreting the tax treaty and declaring a MAP reaching another result as not binding (no difficulty)
8.3.6.4. Supreme judges' diverging views in contracting states
8.3.7. Qualification of an interpretative MAP under international law
8.3.7.1. Treaty under international law?
8.3.7.2. German Federal Tax Court case law and internal effect
8.3.7.3. Some other jurisdictions
8.4. The second sentence of article 25(3) of the OECD Model: Joint consultation by the competent authorities for the elimination of double taxation in cases not provided for
8.4.1. General
8.4.2. Cases not provided for in a tax treaty
8.4.2.1. Commentary on the OECD Model
8.4.2.2. The role of articles 21 and 22 of the OECD Model
8.4.3. No duty
Chapter 9: Dangerous Transplantation: Importing Big Government into Article 3(2) of the 2017 OECD Model Tax Convention
9.1. Introduction
9.2. Article 3(2) of the 2017 OECD Model
9.2.1. A poorly conceived and drafted addition
9.2.2. The Commentary on the changes to the Model clause
9.3. Where did the idea originate?
9.3.1. Relevant US tax treaty history
9.3.2. US administrative law and big government
9.4. The positions of others on deference to the administrative interpretation of law
9.4.1. Reticence among European courts about interpretive mutual agreements
9.4.2. Deference to the administrative interpretation of law further afield: South Africa
9.5. The apparent clarification of article 3(2) in 2017
9.6. Post-2017 adoption in tax treaty practices beyond the United States
9.7. Publicity and interpretive mutual agreements
9.8. Conclusion
Chapter 10: Scope of Arbitration under the OECD and UN Model Provisions
10.1. Introduction
10.2. Preconditions for arbitration.
10.2.1. Presentation of a case under article 25(1).
Title
Copyright
Acknowledgements
Foreword
Part One: Paragraph 1 of Article 25 of the OECD Model
Chapter 1: Paragraph 1 of Article 25 of the OECD Model - Persons Entitled to MAP
1.1. Introduction
1.2. Persons entitled to make the MAP request in transfer pricing situations where two separate taxpayers are involved
1.3. To which competent authority should the request be made, considering the difference between the wording of article 25(1) under the OECD Model (2017) and the UN Model (2017)?
Chapter 2: Actions of One or Both Contracting States
2.1. Introduction
2.2. Historical evolution of the term "action"
2.2.1. The 1920s works of the League of Nations and the Rome Double Tax Convention
2.2.2. The Mexico and London Draft Conventions
2.2.3. The work of the OECD
2.3. The guidance included in the Commentary
2.3.1. Change to a contracting state's tax law
2.3.2. Return in a self-assessment system
2.3.3. Audit
2.3.4. Transfer pricing and amended tax return
2.3.5. Judicial decisions
2.3.6. Other examples: APAs and audit settlements
Chapter 3: The Meaning of "Result or Will Result inTaxation Not in Accordance with the Provisions of This Convention"
3.1. Introduction
3.2. From an objective to a subjective condition
3.3. The phrase "result or will result"
3.4. The phrase "in taxation not in accordance with the provisions of this Convention"
3.5. Conclusion
Chapter 4: Time Limits for Submitting the Case
4.1. Introduction
4.2. Historical evolution of the provision
4.2.1. The Draft OECD Model (1963)
4.2.2. The OECD Model (1977)
4.2.3. The 2008 Update to the OECD Model
4.3. Overview of current treaty practice
4.4. The computation of the 3-year time limit
Chapter 5: Acceptance and Denial of MAP Requests and Related Remedies
5.1. Introduction.
5.2. Why is access/denial of MAPs an issue? The special nature of MAPs and arbitration in tax treaties
5.3. Judicial control of the decision of denial of access to the MAP
5.4. Access/denial of access to MAP in the MEMAP, BEPS Action 14 Minimum Standard and article 25 of the OECD Model
5.4.1. Preliminary remarks
5.4.2. The MEMAP (2007)
5.4.3. BEPS Action 14 (2015): An overview
5.4.4. MLI (2016)
5.4.5. Article 25 of the OECD Model: Access and exceptions to access to the MAP
5.4.5.1. Facilitating access to MAP (new drafting of article 25(1) of the OECD Model) and communications of "denials of access" to the other competent authorities
5.4.5.2. Good faith creates a presumption in favour of MAP access
5.4.5.3. Exceptions to MAP and the presumption of MAP access
5.4.6. A final reflection on the Commentary on Article 25 of the OECD Model and access to MAP
5.5. The 2021 public consultation on BEPS Action 14 and some countries' position: Remaining obstacles to MAP access
5.5.1. The OECD public consultation in 2021: Defining MAP access, common documentation and suspension of collection of tax debts during the MAP
5.5.2. The input received by the OECD in the public consultation
5.5.3. The position on access to MAP in some countries and its connection with arbitration
5.5.4. Conclusion
5.6. The remedies against denial of access (including the interaction of MAP access and bilateral investment treaties)
5.6.1. Introduction
5.6.2. Consultation with the other competent authorities on admission of MAP requests
5.6.3. Corresponding adjustments
5.6.4. Domestic courts and the solution in the Dispute Resolution Directive
5.6.5. Mediation/ombudsman intervention for access to MAP
5.6.6. Bilateral investment treaties.
5.7. Access/denial of access to MAP: An assessment of the current situation and the need for a fresh approach
5.8. Annex 1: BEPS Action 14: Minimum standard and access to MAP
5.8.1. Minimum standard
5.8.2. Best practices
Part Two: Paragraph 2 of Article 25 of the OECD Model
Chapter 6: Judicial Control of the MAP Process
6.1. Introduction
6.2. MAP issues within tax litigation
6.2.1. Would the alleged mismanagement of a MAP procedure affect the legality of taxation?
6.2.2. Is a MAP agreement binding for tax courts?
6.2.2.1. If the taxpayer refuses the MAP agreement
6.2.2.2. If the taxpayer accepts the MAP agreement
6.3. MAP issues outside tax litigation
6.3.1. Direct litigation against MAP procedures
6.3.1.1. Is court action possible against decisions denying access to a MAP?
6.3.1.1.1. Admissibility of applications
6.3.1.1.2. Reasons for the denial of a MAP request
6.3.1.1.3. Margin of appreciation by tax administration
6.3.1.1.4. Efficiency of litigation
6.3.1.2. Is court action possible against a lengthy MAP or a failure to reach an agreement?
6.3.1.3. Is court action possible for the taxpayer against a MAP agreement on the grounds that it violates the tax treaty?
6.3.2. Court action claiming compensation for the mismanagement of the MAP process by the tax administration
6.4. Conclusion
Chapter 7: A Judicial Experience on MAPs in the Context of the Domestic Legal System
7.1. Introduction
7.2. The MAP and domestic proceedings in the Netherlands - Some general aspects
7.3. Interaction between MAPs and domestic legal proceedings in the Netherlands
7.4. Judicial control of the MAP process in the Netherlands
7.5. Personal judicial experience with MAPs
7.6. Final remarks
Part Three: Paragraphs 3 and 4 of Article 25 of the OECD Model.
Chapter 8: The Resolution of "Difficulties" or "Doubts" Related to the Interpretation and Application of a Tax Treaty and Consultation in Cases Not Provided for in the Treaty
8.1. Introduction
8.2. Historical background on article 25 of the OECD Model and in particular on article 25(3)
8.2.1. The 1928 League of Nations Draft Conventions
8.2.2. The Mexico (1943) and London (1946) Draft Conventions
8.2.3. The 1963 OECD Model and beyond
8.3. The first sentence of article 25(3) of the OECD Model: Resolving difficulties or doubts in the interpretation or application of the tax treaty through the MAP
8.3.1. General
8.3.2. The competent authorities are not allowed to change the treaty
8.3.3. Cases in which the competent authorities can conclude an interpretative mutual agreement
8.3.3.1. General
8.3.3.2. Doubts and difficulties regarding the application or interpretation of the treaty
8.3.4. The Commentary on Article 25 of the OECD Model
8.3.4.1. General
8.3.4.2. The phrase "difficulties arising from the application"
8.3.4.3. Difficulties of interpretation
8.3.4.4. Commentaries on other articles of the OECD Model
8.3.4.5. Difficulties and doubts according to the 2016 US Model
8.3.4.6. Double taxation and double exemption: Difficulty regarding the application or interpretation of a treaty
8.3.5. The relationship between the first sentence of article 25(3) of the OECD Model and article 3(2) of the OECD Model
8.3.5.1. General
8.3.5.2. Qualification conflicts
8.3.5.3. Interpretative mutual agreement is part of the treaty context
8.3.6. Testing by the judge
8.3.6.1. Marginal test
8.3.6.2. Relationship with former supreme judge decisions.
8.3.6.3. Further illustrations of a judge independently interpreting the tax treaty and declaring a MAP reaching another result as not binding (no difficulty)
8.3.6.4. Supreme judges' diverging views in contracting states
8.3.7. Qualification of an interpretative MAP under international law
8.3.7.1. Treaty under international law?
8.3.7.2. German Federal Tax Court case law and internal effect
8.3.7.3. Some other jurisdictions
8.4. The second sentence of article 25(3) of the OECD Model: Joint consultation by the competent authorities for the elimination of double taxation in cases not provided for
8.4.1. General
8.4.2. Cases not provided for in a tax treaty
8.4.2.1. Commentary on the OECD Model
8.4.2.2. The role of articles 21 and 22 of the OECD Model
8.4.3. No duty
Chapter 9: Dangerous Transplantation: Importing Big Government into Article 3(2) of the 2017 OECD Model Tax Convention
9.1. Introduction
9.2. Article 3(2) of the 2017 OECD Model
9.2.1. A poorly conceived and drafted addition
9.2.2. The Commentary on the changes to the Model clause
9.3. Where did the idea originate?
9.3.1. Relevant US tax treaty history
9.3.2. US administrative law and big government
9.4. The positions of others on deference to the administrative interpretation of law
9.4.1. Reticence among European courts about interpretive mutual agreements
9.4.2. Deference to the administrative interpretation of law further afield: South Africa
9.5. The apparent clarification of article 3(2) in 2017
9.6. Post-2017 adoption in tax treaty practices beyond the United States
9.7. Publicity and interpretive mutual agreements
9.8. Conclusion
Chapter 10: Scope of Arbitration under the OECD and UN Model Provisions
10.1. Introduction
10.2. Preconditions for arbitration.
10.2.1. Presentation of a case under article 25(1).