Transfer Pricing: methodologies: Mutual Agreement Procedure: Eligibility for MAP
Making a MAP Request through the Tax Treaty
A MAP request can be made when a person considers that the actions of one or both countries’ tax administrations result or will result in taxation not in accordance with the relevant tax treaty. The person may request Competent Authority assistance under the MAP. Older treaties require that the taxpayer approaches the competent authority of their country of residence to request relief under the relevant tax treaty. Where the adjustment will affect related parties in both jurisdictions, it is advisable for each taxpayer to make a separate request for assistance to the Competent Authority of the country in which it is resident. Newer treaties contain a provision which provides that the taxpayer can make a request for MAP assistance to the Competent Authority of either country. Where the treaty permits a MAP request to be submitted to either country and the UK Competent Authority who has received the request considers that the taxpayer’s objection is not admissible or not justified, the UK Competent Authority will implement a bilateral consultation process which will allow the other Competent Authority to provide its views on the of the request for access to MAP.
In a transfer pricing case, a request for access to MAP might be presented by the enterprise which has had, or will have, an adjustment made to the price of goods or services transferred to or from a related party in another country. The person may request that the Competent Authority of the first country reduce or withdraw the adjustment and/or that the Competent Authority of the second country allow a corresponding adjustment to the income of the related party to prevent economic double taxation. The UK is ready to receive the presentation of a request whether it is the country which has made a transfer pricing adjustment or whether it is the country being asked to make a corresponding adjustment for a transfer pricing adjustment made by the other tax authority. In cases concerning profit attribution between an enterprise and a permanent establishment of that enterprise the request is usually presented to the country of enterprise’s residence first. Other tax authorities may have their own practice and/or regulations regarding which Competent Authority should receive presentation of a request first and taxpayers need to ensure compliance with those requirements.
On receipt of a request for access to MAP the UK CA will, without exception, notify the Competent Authority of the relevant overseas tax administration and exchange information relevant to the request. If the case is unable to be resolved unilaterally, the UK will inform the other Competent Authority and seek to resolve the issue through a bilateral process.
Making a MAP Request through the EUAC
The UK and other EU Member States subscribe to the ‘Code of Conduct for the effective administration of the EUAC’ (2009/C 322/01). (the Code of Conduct) [see INTM 423120] which, among other things, contains rules on the format and conduct of the process.
The scope of the EUAC is restricted to questions involving transfer pricing and attribution of profit to permanent establishments. To invoke MAP under the EUAC it is necessary to present a case showing that the arm’s length transfer pricing principles set out in Article 4 of the EUAC have not been observed. The UK will accept parallel requests under the EUAC and under the relevant MAP article of the relevant tax treaty.
Article 6(1) of the EUAC requires that at the same time an enterprise presents a case to the Competent Authority of the state of which it is resident or in which it has a permanent establishment, it must at the same time notify the Competent Authority of any other states which may be concerned in the case.