As cross-border business and international labour mobility continues to be commonplace in a 21st century global economy, disputes relating to which jurisdictions can tax what types of income inevitably arise on occasion.
Many tax treaties between jurisdictions contain a MAP provision providing for a process used to resolve such disputes. Article 25 of the OECD Model Tax Convention provides a mechanism, independent from the ordinary legal remedies available under domestic law, through which the competent authorities of the Contracting States may resolve differences or difficulties regarding the interpretation or application of the Convention on a mutually-agreed basis. This mechanism – the mutual agreement procedure – is of fundamental importance to the proper application and interpretation of tax treaties, notably to ensure that taxpayers entitled to the benefits of the treaty are not subject to taxation by either of the Contracting States which is not in accordance with the terms of the treaty.
Despite the widespread existence of this provision in tax treaties, further effort is needed to ensure that access to MAP is available and that MAP cases are resolved within a reasonable timeframe and implemented quickly.
As novel challenges relating to international taxation surface, the necessity of having robust dispute resolution processes in place becomes increasingly apparent.
Recent statistics show that tax administrations are closing more cases than ever before. However, new MAP cases as from 2016 are increasing significantly, thus putting upward pressure on countries' MAP inventories. Therefore, the total inventory of MAP cases keeps increasing every year since the number of cases closed has not been able to keep up with the number of new cases.
While anecdotal evidence suggests that the increase in new cases is due to a range of factors, it is clear that facilitating the effectiveness and efficiency of MAP between countries is necessary in order to resolve such cases in a timely manner.
The final report on Action 14: Making Dispute Resolution Mechanisms More Effective, which contains a BEPS minimum standard, was adopted in October 2015. The Action 14 Minimum Standard consists of 21 elements and 12 best practices, which assess a jurisdiction’s legal and administrative framework in the following four key areas:
- preventing disputes;
- availability and access to MAP;
- resolution of MAP cases;
- implementation of MAP agreements.
Along with the adoption of this minimum standard, the BEPS Inclusive Framework members agreed on:
- a peer review process to evaluate the implementation of this standard and
- to report MAP statistics under a newly developed reporting framework (“MAP Statistics Reporting Framework”).
The Action 14 peer review process was launched at the end of 2016, with 82 jurisdictions to be reviewed from 2016 onwards. The process consists of two stages. In stage 1, jurisdictions’ implementation of the Action 14 Minimum Standard is evaluated and recommendations are made where jurisdictions have to improve in order to be fully compliant with the requirements under this standard. The follow-up of the recommendations is measured in stage 2 of the process.
In February 2021, the final batch of Action 14 stage 1 mutual agreement procedures (MAP) peer review reports were published. Of the more than 1750 recommendations made, about 66% (+/- 1150) relate to deficiencies in tax treaties with respect to the MAP article. Around 34% (+/- 600) of the recommendations relate to MAP practices and policies that are not in line with the minimum standard. In addition, there are almost 400 recommendations for jurisdictions to continue practices that were already in line with the minimum standard.
The Action 14 minimum standard has had a broader impact on MAP and tax certainty more broadly, and many countries are working to address deficiencies identified in their respective reports. For example:
- The peer review process has spurred on changes regarding the structure and organisation of competent authorities to streamline better their processes for resolving MAP cases in a timely manner.
- There has been a significant increase in the number of closed cases in almost all jurisdictions under review. This is likely the result of an increase in resources or of a more efficient use of resources by competent authorities due to (or in anticipation of) the peer review process.
- The number of Inclusive Framework MAP profiles continues to increase, and now covers over 100 jurisdictions. This central repository of easily accessible information for taxpayers will facilitate their use of MAP.
- An increasing number of jurisdictions have introduced or updated comprehensive MAP guidance to provide taxpayers with clear rules and guidelines on MAP.
- Access to MAP is now granted for transfer pricing cases even where the treaty does not contain Article 9(2) of the OECD Model Tax Convention, especially in those jurisdictions that did not provide access to MAP in such cases in the past.
In addition to these broader changes, the monitoring process under stage 2 is underway. Stage 2 reports for 45 jurisdictions that were peer reviewed in batches 1-6 have been published from August 2019 onwards as of July 2021. These stage 2 reports offer a first glimpse into how well jurisdictions are implementing the specific recommendations issued to them during stage 1 of the peer review process.
To date, the results of this stage 2 monitoring process show that jurisdictions are making tangible progress. For the 45 jurisdictions reviewed so far in stage 2, many have improved their performance with respect to the prevention of disputes, the availability of and access to MAP, the resolution of MAP cases and the implementation of MAP agreements. This progress is also reflected in the developments set out below:
- In addition to bilateral treaty changes, the MLI was signed and ratified by most of the jurisdictions, which brings a substantial number of their treaties in line with the standard.
- Almost all jurisdictions have either introduced or updated publicly available MAP guidance to provide more clarity and details to taxpayers.
- Most of the jurisdictions decreased the amount of time needed to close MAP cases and a majority of these jurisdictions met or were close to the sought-after 24-month average timeframe to close MAP cases.
- Following legislative or policy related changes or the impact of the Multilateral Instrument since stage 1, several of these jurisdictions are now able to implement MAP agreements notwithstanding their domestic time limits.
There is still work to be done to bring the tax treaties of reviewed jurisdictions in line with the Action 14 minimum standard. Many of the assessed jurisdictions have, however, made substantial progress in updating their treaty networks, including through the prioritisation of tax treaty negotiations when treaties are not expected to be modified by the MLI. Further insight into the progress made can be expected from the release of future stage 2 monitoring reports that follow up on any stage 1 recommendations.
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Action specific content
In October 2016, the OECD released key documents, approved by the Inclusive Framework on BEPS, that form the basis of the MAP peer review and monitoring process under Action 14 of the BEPS Action Plan. The peer review and monitoring process is conducted by the Forum on Tax Administration MAP Forum in accordance with the Terms of Reference and Assessment Methodology, with all members participating on an equal footing.
The peer review process is conducted in two stages. Stage 1 assesses countries against the terms of reference of the minimum standard according to an agreed schedule of review. Stage 2 focuses on monitoring the follow-up of any recommendations resulting from jurisdictions' stage 1 peer review report.Schedule of reviews
The peer review reports for Stage 1, as well as the optional reports on the adoption of best practices, if chosen by the assessed jurisdiction, can be accessed here:
The peer review reports for Stage 2, as well as the optional reports on the adoption of best practices, if chosen by the assessed jurisdiction, can be accessed here:
- Czech Republic
- The Netherlands
- New Zealand
- Slovak Republic
- South Africa
- United Kingdom
- United States