Double taxation; request for mutual agreement and arbitration under the EU Arbitration Commission

If you believe that a transaction between your company and an associated company is being taxed twice in another EU Member State, you can make a claim under the EU Arbitration Convention.

Description

Prerequisites

Applications for a mutual agreement procedure may be submitted by:

  • companies and, where applicable, their permanent establishments (natural and legal persons),
    • who are resident in Germany and
    • Income (insofar as it relates to transfer prices) Member States of the European Union,
      • for whom double taxation is imminent or has occurred

Procedure

You must submit the application to initiate a mutual agreement procedure in writing to the Federal Central Tax Office (BZSt).

  • Compile the necessary documents and records. Send the signed application in triplicate by post to the BZSt.
  • The BZSt will confirm receipt of your application in writing. The BZSt will first check whether the conditions for carrying out a mutual agreement procedure are met. If your application
    • is admissible and justified and
    • the double taxation cannot be eliminated unilaterally,

the intergovernmental part of the mutual agreement procedure will be initiated.

  • As the applicant, you are not involved in the procedure yourself. However, you will receive regular information on the status and progress of the procedure.
  • As soon as a mutual agreement has been reached between Germany and the other EU country involved, you will be informed of the result.
  • You must confirm in writing that
    • you agree to the mutual agreement solution and waive your right to appeal against its correct implementation, and
    • that you withdraw any legal remedies or appeals you may have lodged independently of the request to initiate the mutual agreement procedure, insofar as they relate to the subject matter of the mutual agreement procedure.
  • The negotiated settlement can now be implemented.

If the mutual agreement procedure has not produced a result even after 2 years from the expiry of the arbitration period and no extension of the period has been agreed:

  • Arbitration proceedings will be initiated upon request and an Advisory Committee will be formed.
  • You have the opportunity to comment on the factual and legal situation vis-à-vis the Advisory Committee.
  • Upon completion of its work, the Advisory Committee shall issue an opinion.
  • The competent authorities of the Contracting States involved in the case may now agree on a solution (which may differ from the opinion of the Advisory Committee). If the competent authorities involved do not agree, the procedure will be closed in accordance with the opinion of the Advisory Committee after six months have elapsed since the opinion was communicated.
  • As soon as a solution has been reached between Germany and the other EU member state involved, you will be informed of the outcome.
  • You must confirm in writing that
    • that you agree to the outcome of the arbitration and waive your right to appeal against the correct implementation of the arbitration, and
    • that you withdraw any remedies or appeals you may have submitted independently of the request for arbitration to the extent that they relate to the subject matter of the arbitration.
  • The result of the arbitration may now be implemented.

Deadlines

  • Application: within 3 years of the first notification of the measure, the
    • causes or is likely to cause double taxation
    • could give rise to double taxation

Processing time

  • for processing the request: 24 months
  • for the initiation of arbitration: 2 years after the start of the mutual agreement procedure (upon request, if the latter has remained without result and no extension of the mutual agreement procedure is agreed)
  • for the award of the advisory commission: 6 months after submission of all necessary documents
  • agreement between the competent authorities involved or and notification of the result: within 6 months after the award of the advisory commission

Required documents

  • Required Documents

    When submitting an application for a mutual agreement procedure, you must submit

    • the name, address, tax identification number and local tax office of the person(s) entitled to the agreement
      • of the applicant company
      • the contracting state and
      • the other parties to the transactions in question
    • details of the facts and circumstances relevant to the case (including details of the relationship between the company and the other parties to the relevant transactions)
    • details of the relevant tax periods
    • Copies
      • the tax assessment notices
      • the tax audit report or
      • comparable documents which gave rise to the alleged double taxation
      • other relevant documents (e.g. contracts, applications for refund/reduction of foreign withholding tax)
    • details of any out-of-court or judicial redress procedures,
      • any legal proceedings initiated by the company or the other parties involved in the relevant transactions
      • any court decisions relating to the case
    • a statement by the enterprise as to how it considers that the principles set out in Article 4 of the Arbitration Convention have not been complied with
    • an undertaking by the company that it will
      • as fully and
      • as soon as possible

    respond to all reasonable and appropriate enquiries from a competent authority and provide documentation to the competent authorities

Fees

    • none

    Notes:
    Fees may be charged for pre-appraisal procedures.
    Costs incurred by the applicant (for example, for the compilation of documents or for legal advice) will not be reimbursed.

Remedy

  • Objection in case of leaning of the application
  • Tax court action

Status:18.02.2023

Responsible for editing:Bundesministerium der Finanzen

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