U.S., Japan Reach Agreement on Treaty Arbitration Process
Announcement 2021-5; 2021-13 IRB 1
- Institutional AuthorsInternal Revenue Service
- Cross-Reference
- Subject Area/Tax Topics
- Jurisdictions
- Tax Analysts Document Number2021-12823
- Tax Analysts Electronic Citation2021 TNTI 59-172021 TNTG 59-222021 TNTF 59-34
U.S.-Japan Competent Authority Arrangement Regarding Treaty Arbitration Clause
The following is a copy of the Competent Authority Arrangement entered into by the competent authorities of the United States of America and Japan, with respect to the implementation of the arbitration process provided for in paragraphs 5, 6, and 7 of Article 25 of the Convention between the Government of Japan and the Government of the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income signed at Washington on November 6, 2003, as amended by the Protocol signed at Washington on January 24, 2013 (the “Convention”) and paragraph 14 of the Protocol signed at Washington on November 6, 2003, as amended by the Protocol signed at Washington on January 24, 2013 (the “Protocol of 2003”).
The text of the Competent Authority Arrangement is as follows:
Implementing Arrangement regarding Paragraphs 5, 6 and 7 of Article 25 of the Convention between the Government of Japan and the Government of the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income
The competent authorities of Japan and the United States of America have established this arrangement (hereinafter referred to as the “Arrangement”) to implement the arbitration process provided for in paragraphs 5, 6 and 7 of Article 25 of the Convention between the Government of Japan and the Government of the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income signed at Washington on 6 November 2003 as amended by the Protocol signed at Washington on 24 January 2013 (hereinafter referred to as “the Convention”) and paragraph 14 of the Protocol signed at Washington on 6 November 2003 as amended by the Protocol signed at Washington on 24 January 2013 (hereinafter referred to as “the Protocol of 2003”).
Subject to certain exceptions described in paragraph III, this arbitration process applies to cases that the competent authorities of Japan and the United States have determined are suitable for assistance under the mutual agreement procedure of paragraphs 1, 2, 3 and 4 of Article 25 of the Convention in accordance with published guidance, in the case of Japan, the Commissioner's Directive on the Mutual Agreement Procedure issued on 25 June 2001 or any amendment or successor provisions thereof, and in the case of the United States, Revenue Procedure 2015-40 or any amendment or successor provisions thereof.
This Arrangement is adopted in accordance with subparagraph (i) of paragraph 7 of Article 25 of the Convention.
Both competent authorities will follow the procedures in this Arrangement in good faith, and will ensure that the presenter of the case and the arbitrators will follow the procedures in this Arrangement in good faith.
I. Definitions and General Matters
A. “MAP” is the abbreviation for the Mutual Agreement Procedure, which are proceedings of the competent authorities under Article 25 of the Convention.
B. The term “Concerned Person” means the presenter of a case to a competent authority for consideration under Article 25 of the Convention and all other persons, if any, whose tax liability to either Contracting State may be directly affected by a mutual agreement arising from that consideration.
C. The “Commencement Date” for a case is the earliest date on which the information necessary to undertake substantive consideration for a mutual agreement has been received by both competent authorities. The Commencement Date will be determined in accordance with paragraph IV.
D. Each competent authority will identify an individual or individuals within the competent authority's office to carry on administrative coordination of arbitration matters. Actions identified in this Arrangement which are to be taken by a competent authority may be accomplished by these individuals on behalf of the competent authority.
E. If a competent authority does not accept a MAP request for assistance from a taxpayer, or ceases providing MAP assistance, the competent authority will notify, and consult, with the other competent authority whether the case is not suitable for assistance.
II. Cases Eligible for Arbitration
A. According to paragraphs 5, 6, and 7 of Article 25 of the Convention, arbitration will be available where:
1. the case was presented to the competent authority of the Contracting State of which the presenter is a resident or, if his case comes under paragraph 1 of Article 24 of the Convention, to that of the Contracting State of which he is a national, on the basis that the actions of one or both of the Contracting States have resulted for him in taxation not in accordance with the provisions of the Convention, and the competent authorities are unable to reach an agreement to resolve the case; and
2. a request for arbitration was presented in accordance with subparagraphs B and C of paragraph V.
B. In determining whether arbitration is available for a case, it is understood that:
1. taxation will be considered to have resulted for the purpose of paragraph 5 of Article 25 of the Convention from the actions of one or both of the Contracting States as soon as tax has been paid, assessed or otherwise determined (for example, a notification of correction, determination or deficiency of a tax liability has been issued), or in cases where the taxpayer is officially notified by the tax authorities that they intend to tax him on a certain element of income (for example, a notice of proposed adjustment has been issued).
2. the fact that tax collection procedures may have been suspended will not affect a determination that taxation has resulted from the actions of one or both Contracting States.
C. An unresolved case that is the subject of a request for an advance pricing arrangement (hereinafter referred to as “APA”) will be subject to arbitration procedures in accordance with paragraph XVII.
III. Cases Not Eligible for Arbitration
Notwithstanding paragraph II, as provided in paragraphs 5, 6 and 7 of Article 25 of the Convention, arbitration will not be available, for example:
1. for non-taxpayer-specific cases;
2. for a case if a decision with respect to such case has already been rendered by a court or administrative tribunal of either Contracting State;
3. for a case for which both competent authorities have decided that the case is not suitable for resolution through arbitration and have notified the presenter of the case of such decision no later than two years after the Commencement Date; or
4. for a case that is the subject only of the provisions set forth in the final sentence of paragraph 3 of Article 25 of the Convention (i.e., for the elimination of double taxation in cases not provided for in the Convention).
IV. Commencement Date
A. The term “information necessary to undertake substantive consideration for a mutual agreement” in subparagraph (b) of paragraph 7 of Article 25 of the Convention, except as described in subparagraph C of paragraph XVII with respect to a case that is the subject of request for an APA, means:
1. the full name and address of the presenter of the case for consideration by both competent authorities;
2. the full name and address of any other Concerned Person than the presenter of the case;
3. the taxable years of the Concerned Person which are the subject of the case;
4. the nature and date of the actions giving rise to the case, including any amounts of income, expense or tax in dispute in the currencies of both Contracting States;
5. an explanation of the reason for the MAP request, and the nature of the relief sought or the action requested in the Contracting States with respect to the issues raised in the case;
6. the relationship, situation or structure of the transactions and related parties involved in the case;
7. a statement indicating whether a Concerned Person has filed a notice of objection, notice of appeal, or comparable documentation with respect to the case in either of the Contracting States;
8. a copy of any documents issued by the tax authority of either or both Contracting States with regard to the actions giving rise to the case; and
9. any specific additional information necessary for initial consideration of the case and requested by the competent authority within 45 days after the receipt (from either a Concerned Person or the other competent authority) of the MAP request. This period may be extended up to 90 days with the concurrence of the other competent authority. Where the MAP request is provided to only one competent authority by the Concerned Person(s), that competent authority will inform the Concerned Person of the date on which it transmits the MAP request to the other competent authority.
B. Both competent authorities will confirm to each other the date on which all the information described in subparagraph A was received by both competent authorities, i.e., the Commencement Date of a case.
C. Once the Commencement Date of a case has been confirmed by both competent authorities under subparagraph B, the competent authority to whom that case has been presented under paragraph 1 of Article 25 of the Convention will notify the presenter of the case of that date.
V. Request for Submission of Case to Arbitration
A. An arbitration proceeding with respect to a case will begin on a date (hereinafter referred to as the “Date Arbitration Proceedings Begin”) as identified according to subparagraph (c) or (d) of paragraph 7 of Article 25 of the Convention. Except as otherwise described in paragraph XVII with respect to a case that is the subject of a request for an APA, according to subparagraph (c) of paragraph 7 of Article 25 of the Convention, the Date Arbitration Proceedings Begin with respect to a case is the later of:
1. two years after the Commencement Date of that case, unless both competent authorities have decided on a different date and notified the presenter of the case of such agreement (as provided in subparagraphs E and F); and
2. where there is at least one Concerned Person involved in the case in each Contracting State, the earliest date on which both competent authorities have received, and where there is only one Concerned Person involved in the case, the date on which the competent authority has received, a request for arbitration as described in subparagraph B accompanied with all necessary attachments as described in subparagraph C regarding a case eligible for arbitration.
B. A request for arbitration will be made in writing, and sent to the competent authority of which the presenter of the case is a resident or, if his or her case comes under paragraph 1 of Article 24 of the Convention, to that of the Contracting State of which he or she is a national through:
(in Japan): Office of Mutual Agreement Procedures, National Tax Agency; and
(in the United States): the United States Competent Authority, according to section 10 (Arbitration) of Revenue Procedure 2015-40 (or any applicable subsequent guidance).
C. A request for arbitration will be accompanied with:
1. sufficient information to identify the case;
2. a written statement that no decision with respect to such case has already been rendered by a court or administrative tribunal of either Contracting State; and
3. a written statement regarding confidentiality in subparagraph A of paragraph VI from all the Concerned Persons and their authorized representatives or agents according to formats specified by both competent authorities.
D. After the receipt of a request for arbitration, the competent authority who received it will immediately inform the other competent authority of the fact that the request was submitted, and send a copy of the request and the accompanying information and statements within 10 days to the other competent authority.
E. According to clause (i) of subparagraph (c) or clause (i) of subparagraph (d) of paragraph 7 of Article 25 of the Convention, both competent authorities may decide in appropriate situations that the Date Arbitration Proceedings Begin with respect to a MAP case will be later than what it would have been without such decision. Such appropriate situations could be, for example, where the competent authorities are close to reaching a mutual agreement to resolve the case, where there has been a delay by a Concerned Person in providing information in the MAP case, where MAP is suspended by a request from the presenter of the case, or where a Concerned Person has provided significant new information after the Commencement Date of the case. Unless otherwise agreed between the competent authorities and the relevant Concerned Person, the competent authorities will make the decision by the later date of:
1. two years after the Commencement Date of the MAP case; or
2. the date when the request for arbitration is submitted.
F. If both competent authorities decide the Date Arbitration Proceedings Begin with respect to a case under subparagraph E, then the competent authority to whom that case has been presented will immediately notify the presenter of the case of the date so decided.
G. If both competent authorities determine that the case is not suitable for resolution through arbitration, the competent authority to whom that case has been presented will immediately notify the presenter of the case of that determination.
VI. Confidentiality
According to subparagraph (b) of paragraph 5 and subparagraphs (f), (g) and (h) of paragraph 7 of Article 25 of the Convention, the confidentiality of a case will be maintained in the following manner:
A. All Concerned Persons and their authorized representatives or agents will agree, when the request for arbitration is submitted, not to disclose to any person (except other Concerned Persons) any information received during the course of the arbitration proceeding from either competent authority or the arbitration panel, other than the determination of the panel.
B. No information relating to an arbitration proceeding (including the determination of the arbitration panel) will be disclosed by the competent authorities, except as permitted by the Convention and the laws of the Contracting States. In addition, all material prepared in the course of, or relating to, an arbitration proceeding will be considered to be information exchanged between the competent authorities pursuant to Article 26 of the Convention.
C. For the purposes of an arbitration proceeding under paragraphs 5 and 7 of Article 25 of the Convention, the members of the arbitration panel (hereinafter referred to as “arbitrators”) and their staff will be considered to be “persons or authorities” to whom information may be disclosed under Article 26 of the Convention.
D. Both competent authorities will ensure that all arbitrators (and any of their staff which will assist them in carrying on the arbitration), prior to their acting in an arbitration proceeding, agree in the forms specified by both competent authorities not to disclose any information relating to an arbitration proceeding (including the determination of the arbitration panel), and to abide by and be subject to the confidentiality and nondisclosure provisions of Article 26 of the Convention and similar provisions of relevant laws of the Contracting States. However, the arbitrators or their staff will disclose the determination of the arbitration panel to the competent authorities.
VII. Eligibility of Arbitrators
A. According to subparagraph (b) of paragraph 14 of the Protocol of 2003, in order for an individual to be eligible as an arbitrator:
1. the individual is not an employee nor has been an employee within the twelve-month period prior to the Date Arbitration Proceedings Begin of the tax administration, the Treasury Department, or the Ministry of Finance of the Contracting State which identifies him or her;
2. the individual does not have any prior involvement with the specific matters at issue in the arbitration proceeding for which he or she is being considered as an arbitrator; and
3. in addition, the individual who will serve as the chair of the arbitration panel (hereinafter referred to as “the Chair”) is not a national or lawful permanent resident of either Contracting State.
B. Both competent authorities will each prepare and exchange a list of individuals who may be eligible and are willing to serve as the Chair. The competent authorities will prepare and exchange such list every two years, or more often as necessary.
C. Both competent authorities will ensure that the staff of an arbitrator will meet the same requirements described in subparagraph A.
VIII. Appointment of Arbitrators
A. According to subparagraph (b) of paragraph 14 of the Protocol of 2003, the arbitration panel will consist of three individual members.
B. Each competent authority will select one arbitrator to the arbitration panel by sending a copy of the forms identified in subparagraph D of paragraph VI, signed by the arbitrator, to the other competent authority within 60 days after the Date Arbitration Proceedings Begin.
C. In the event that the competent authority fails to make such selection in the manner and within the time period in subparagraph B, the other competent authority will select a second arbitrator within 90 days after the Date Arbitration Proceedings Begin.
D. The procedure in subparagraph C will not apply, where the failure of such selection within the time period in subparagraph B is due to the fact that an individual who had agreed to serve as an arbitrator becomes unable to serve because of circumstances outside of his or her control (for example, death, serious illness or natural disaster). Both competent authorities will determine the appropriate time period for the selection of an arbitrator in such a case.
E. Within 60 days after the latter selection of the two initial arbitrators who were selected by the competent authorities under subparagraphs B, C and D (hereinafter referred to as “ two initial arbitrators”), the two initial arbitrators so selected will select a third arbitrator, who will serve as the Chair. The third arbitrator so selected will inform both competent authorities of his or her appointment as soon as possible. In order to help the two initial arbitrators make that selection, the competent authorities will provide the two initial arbitrators with a consensus list of individuals derived from the list described in subparagraph B of paragraph VII (that is, candidates to be the Chair) who appear to be best qualified to decide the case under consideration.
F. If the two initial arbitrators fail to select the third arbitrator in the manner and within the time period in subparagraph E, the two initial arbitrators will be dismissed, and each competent authority will select a new arbitrator of the arbitration panel.
G. The procedure in subparagraph F will not apply, where the failure of such selection within the time period in subparagraph E is due to the fact that the individual selected to serve as the Chair becomes unable to serve because of circumstances outside of his or her control (for example, death, serious illness or natural disaster). In such a case, unless otherwise decided, both competent authorities will provide the two initial arbitrators with a revised consensus list of candidates to be the Chair within 20 days after the end of the period in subparagraph E. The two initial arbitrators will select a third arbitrator from among the candidates so proposed within 10 days after the receipt of the list of candidates.
H. The arbitrators will be selected from individuals who:
1. satisfy the eligibility requirements identified in subparagraph A of paragraph VII at the time of accepting an appointment to serve, and are reasonably expected to remain so during the entire Arbitration Proceeding and for a reasonable time thereafter; and
2. have significant experience in international tax matters (he or she need not, however, have experience as either a judge or arbitrator).
I. An arbitrator will be deemed selected on the date on which he or she signs the agreements (Statement, Declaration) required by subparagraph D of paragraph VI.
J. Where one of the two initial arbitrators becomes ineligible for service as an arbitrator or for any other reasons it is necessary to replace an arbitrator after the arbitrator was selected, the competent authority who had selected that individual will select a replacement as soon as possible and no later than 60 days after the position becomes vacant.
K. Where the Chair becomes ineligible for service as an arbitrator or for any other reasons it is necessary to replace the Chair after the arbitrator was selected, the two initial arbitrators will select a replacement as soon as possible and no later than 30 days after the position becomes vacant.
L. If any arbitrator is unable to fulfill his or her duties, the competent authorities will consult with the remaining panel members to determine a new timetable, if necessary.
M. The arbitrators will undertake to promptly disclose to both competent authorities, in writing, any new facts or circumstances that arise during or following the arbitration proceedings that might give rise to doubts with respect to their impartiality or independence.
IX. Procedures and Terms of Reference
A. As soon as possible after the Date Arbitration Proceedings Begin, both competent authorities will develop a brief Statement of Information which will identify the Concerned Persons and contain a general description of the proposed adjustments or similar issues to be resolved in a case. The competent authority, or an arbitrator selected by the competent authority, may disclose the Statement of Information, if the confidentiality of the information is ensured and such disclosure is permitted by the law of the Contracting State, to a candidate to be an arbitrator of the case to check whether that candidate satisfies the eligibility requirements identified in subparagraph A of paragraph VII.
B. Both competent authorities undertake to develop, within 30 days after the Date Arbitration Proceedings Begin, an agreed “Terms of Reference” for a case to include:
1. a description of the relevant business activities of the Concerned Persons;
2. a description of the adjustments or similar issues in dispute in the case;
3. a description of the matters to be considered for the resolution of the case; including identification of all matters in the case previously agreed between the competent authorities; and
4. a description of the final position taken by each competent authority in the negotiation of the unresolved matters which prevent the mutual agreement between the competent authorities.
The competent authorities may also provide logistical or procedural information in the Terms of Reference.
C. The Terms of Reference will be communicated to the Chair on the date of his or her appointment, or as soon thereafter as possible.
D. If the Terms of Reference has not been completed by the date for submission of the proposed resolutions and position papers, both competent authorities will send to each other and to the Chair their most recent written proposals for the Terms of Reference along with their proposed resolutions and position papers. All the matters identified as unresolved in these draft Terms of References are treated as unresolved for the purpose of the subsequent proceedings.
E. According to subparagraph (d) of paragraph 14 of the Protocol of 2003, each of the competent authorities will be permitted to submit a proposed resolution, not to exceed five pages, addressing each adjustment or similar issue raised in a case. Such proposed resolution will be a resolution of the entire case, and will reflect, without modification, all matters in the case previously agreed between both competent authorities. Such proposed resolution will be limited to a disposition of specific monetary amounts (for example, of income, profit, gain or expense) or, where specified, the maximum rate of tax charged pursuant to the Convention, for each adjustment or similar issue in the case, based on the application of the Convention to the case. Each of the competent authorities will also be permitted to submit a supporting position paper, not to exceed 30 pages plus annexes, for consideration by the arbitration panel.
F. The submission of a proposed resolution and supporting position paper by the competent authority will be made by posting it (or similarly sending it via express delivery service) to the Chair within 60 days after the appointment of the Chair. Unless alternative arrangements are made, the Chair will in turn send a copy of each competent authority's proposed resolution and supporting position paper to the other panel members and the other competent authority within 5 days after the receipt of the later submission.
G. In the event that only one of the competent authorities submits a proposed resolution within the allotted time, then that proposed resolution will be deemed to be the determination of the arbitration panel in that case.
H. According to subparagraph (g) of paragraph 14 of the Protocol of 2003, each of the competent authorities will be permitted to submit a reply submission, not to exceed 10 pages excluding annexes, to the arbitration panel in order to address any points raised by the proposed resolution or supporting position paper submitted by the other competent authority. In this reply submission, the competent authority may also comment upon any papers setting forth its analysis and views of the case (hereinafter referred to as a “Presenter Position Paper”) submitted under the provisions of paragraph X. If the competent authority exercises its option to also comment upon a Presenter Position Paper, its reply submission will not exceed 20 pages excluding annexes. The submission of a reply submission by the competent authority will be made by posting it (or similarly sending it via express delivery service) to the Chair within 120 days after the appointment of the Chair. Unless alternative arrangements are made, the Chair will send a copy of each competent authority's reply submission to the other panel members and the other competent authority within 5 days after the receipt of the reply submission.
I. In a particular case, both competent authorities may decide to use a different presentation or page limitation for the proposed resolutions, supporting position papers or reply submissions, such as is provided in paragraphs XV and XVI.
J. Any annex to a supporting position paper or reply submission will be a document previously made available for both competent authorities to use in negotiation. Any factual information used in a supporting position paper or reply submission will be what was contained in a document previously made available for both competent authorities to use in negotiation, or otherwise reflect information widely available to the general public.
K. Except with respect to the final position taken by the other competent authority as described above in clause 4 of subparagraph B of paragraph IX, the competent authority will only be permitted to refer to a proposal for resolution made by either competent authority during negotiations if that proposal is submitted to the arbitration panel for consideration as a proposed resolution.
L. Within 120 days after the receipt of the proposed resolutions from both competent authorities, the arbitration panel may ask both competent authorities in writing for additional information. Such additional information may be submitted to the arbitration panel only at its request, and will be provided within 30 days after the request. Copies of the arbitration panel's request and the competent authority's response will be provided to the other competent authority on the date on which the request or the response is submitted. If the panel requests information or analyses that have not previously been available or considered for purposes of the negotiation, the competent authorities will consult to determine how to respond to the panel's request. The panel will not request additional information from the presenter of the case.
M. Unless otherwise decided between both competent authorities and the Chair, the competent authorities will send to the Chair four copies of each document submitted to the arbitration panel, for distribution to the other arbitrators and the other competent authority.
N. Unless otherwise decided between both competent authorities, any information (including any information provided by the presenter of the case or his or her authorized representatives or agents in writing or orally) that was not available to both competent authorities before the Date Arbitration Proceedings Begin will not be taken into account for purposes of the arbitration decision. Furthermore, any reply submission or any additional information that was provided to the panel after the deadlines specified in subparagraphs H and L respectively will not be taken into account for purposes of the arbitration decision.
O. To the extent needed, the arbitration panel may adopt any additional procedures necessary for the conduct of its business, provided that the procedures are not inconsistent with any provision of Article 25 of the Convention, paragraph 14 of the Protocol of 2003, or this Arrangement or any other procedural rules decided between both competent authorities. If the arbitration panel adopts any additional procedures, the Chair will provide a written copy of them to the competent authorities.
X. Participation of the Person Who Requested the Arbitration
A. According to subparagraph (h) of paragraph 14 of the Protocol of 2003, the presenter of the case is permitted to submit for consideration by the arbitration panel Presenter Position Paper by transmitting it to the competent authority of which the presenter is resident or, if his or her case comes under paragraph 1 of Article 24 of the Convention, to that of the Contracting State of which he or she is a national within 30 days after a request for arbitration made in conformance with the provisions of paragraph V.
B. Both competent authorities will advise the presenter of the case that the Presenter Position Paper does not exceed 30 pages excluding annexes, and the Presenter Position Paper and annexes do not include any information (including positions, arguments, analyses and documents) not previously provided to the competent authorities during their negotiation. The competent authorities may decide a specific format, on a case by case basis, for the Presenter Position Paper.
C. The competent authority which receives the Presenter Position Paper will send a copy of the Presenter Position Paper to the Chair (if the Chair has not been appointed on the date on which the receipt of the Presenter Position Paper, immediately after the appointment of the Chair) and the other competent authority immediately (no later than 5 days after the receipt of the original Presenter Position Paper). That competent authority may ask the presenter of the case to submit additional copies as necessary.
XI. Communication
A. Before the Chair is selected, both competent authorities will send any correspondence concurrently to both arbitrators. After the Chair is selected, unless otherwise decided between the Chair and the competent authorities, the competent authorities will send any correspondence to the Chair. Similarly, the Chair will send any correspondence concurrently to the competent authorities.
B. Except for administrative or logistical matters, no competent authority will have any ex parte communications with an arbitrator.
C. All communication, except for logistical matters, between both competent authorities and the arbitration panel will be in writing. Written communication by facsimile or email is allowed, however, no information that may identify the taxpayer(s) may be included in an email unless other security precautions to protect taxpayer information are agreed upon by both competent authorities. Express mail or air mail will be used for all correspondence other than that sent via facsimile or email.
D. The arbitrators will communicate by telephone, facsimile or face-to-face meetings. Arbitrators will communicate by email; however they will not include any taxpayer information in the email.
E. No substantive discussion will be done, unless all arbitrators are present (physically or remotely).
F. No arbitrator will have communications regarding the issues or matters before the arbitration panel with the presenter of the case, the taxpayers involved in the case, or their representatives during or subsequent to the arbitration process.
XII. Costs and Logistical Arrangements
A. According to subparagraph (k) of paragraph 14 of the Protocol of 2003, the fees and expenses of the arbitrators, as well as any costs incurred in connection with the proceeding by the Contracting States, will be borne equitably by the Contracting States in the following manner:
1. each competent authority will bear the cost of its selected arbitrator and its own expenses; and
2. the cost of the Chair and other expenses associated with the conduct of the proceedings will be borne by the competent authorities in equal shares. The term “other expenses associated with the conduct of the proceedings” does not include indirect costs incurred for the logistical arrangements described in subparagraph D.
B. The compensation of the arbitrators will be set as follows:
1. The fees and expenses of an arbitrator selected by the competent authority in accordance with paragraph VIII will be set at the amounts generally payable in the Contracting State on the Date Arbitration Proceedings Begin, provided that they do not exceed the amounts set by the International Centre for Settlement of Investment Disputes Schedule of Fees for arbitrators in effect on the same date. The competent authority may use this Schedule of Fees (subject to any necessary modifications as may relate to the maximum amount to be paid, payment methods or currency exchange) to determine the fees and expenses of its selected arbitrator. This applies in particular for hotel, meals, travel expenses, and incidental costs.
2. The fees and expenses of the Chair will be the amounts set by the International Centre for Settlement of Investment Disputes Schedule of Fees for arbitrators in effect on the Date Arbitration Proceedings Begin (subject to any necessary modifications as may relate to the maximum amount to be paid, payment methods or currency exchange).
C. Neither competent authority will charge any Concerned Person for costs associated with arbitration.
D. Unless otherwise decided by both competent authorities, the competent authority to which a case giving rise to the arbitration was initially presented will be responsible for the logistical arrangements for any face-to-face meetings of the arbitration panel and will provide the administrative personnel necessary for the support of such meetings. The administrative personnel so provided will report only to the Chair concerning any matter related to that process. In the event that both competent authorities have received a MAP request, the competent authority the actions of which resulted in taxation not in accordance with the provisions of the Convention will carry out the logistical arrangements described in this subparagraph. The competent authority responsible for the logistical arrangements may arrange meeting facilities in a location that minimizes the panel's travel time and expenses. The competent authority may arrange a meeting in the other's meeting facilities, as needed.
E. In general, each arbitrator will be compensated for no more than seven days of work on the arbitration (e.g., five days of preparation and for two meeting days). If the arbitrators feel they require additional time to properly consider the case, the Chair will contact both competent authorities to request additional time. Both competent authorities anticipate that panel members will be able to perform their duties without the use of their staff. Both competent authorities will not compensate a staff member of an arbitrator.
F. As a general rule, both competent authorities will encourage the arbitration panel to complete their joint consideration of the case through telecommunications. The Chair will obtain approval from both competent authorities prior to incurring any expenses relating to a face-to-face meeting.
XIII. Arbitration Panel Determination
A. Within 180 days after the appointment of the Chair (or, where subparagraph J or K of paragraph VIII applies, unless otherwise decided by both competent authorities, within 180 days after the selection of the new arbitrator), the Chair will transmit the written determination of the arbitration panel, concurrently to each competent authority. This period may be extended up to 270 days where subparagraph L of paragraph IX applies. Within 10 days after the receipt of the determination, the competent authority to which the request for arbitration was submitted will write to the presenter of the case to request whether that person accepts the determination.
B. In the event that the determination has not been communicated to both competent authorities within the period provided for in subparagraph A, the competent authorities will consult to determine whether to extend the period for the arbitration panel to transmit a determination, or to dismiss the panel and select new arbitrators in accordance with paragraph VIII.
C. Issues will be decided by the arbitrators in accordance with the Convention and applicable rules of international law.
D. According to subparagraph (e) of paragraph 7 of Article 25 of the Convention, unless the presenter of the case does not accept the determination of the arbitration panel, such determination will constitute a resolution by mutual agreement of the entire case under Article 25 of the Convention at the time it is timely accepted by the presenter and be binding on both Contracting States.
E. The resolution resulting from the determination of the arbitration panel will be implemented notwithstanding any time limits or procedural limitations in the law of the Contracting States, except such limitations as apply for the purposes of giving effect to such a resolution.
F. The determination of the arbitration panel will be decided on the basis of a majority vote.
G. The arbitration panel will not determine the treatment of any associated interest or penalties; rather that treatment will be determined under the respective taxation laws of the Contracting States.
H. According to subparagraph (i) of paragraph 14 of the Protocol of 2003:
1. The arbitration panel will deliver a determination in writing to both competent authorities.
2. The determination of the arbitration panel will be limited to one of the proposed resolutions submitted by the competent authorities for each adjustment or similar issue and any threshold questions, and will not include a rationale or any other explanation of the determination.
3. The determination of the arbitration panel has no precedential value with respect to the application of the Convention in any other case.
I. According to subparagraph (j) of paragraph 14 of the Protocol of 2003:
1. Unless both competent authorities decide to provide a longer time period, the presenter of the case will have 45 days after receiving the determination of the arbitration panel to notify, in writing, the competent authority to whom the case was presented, of his or her acceptance of the determination.
2. If the presenter of the case fails to so advise the relevant competent authority, the determination will be considered not to be accepted.
3. In the event the case is pending in litigation or appeal, the determination of the arbitration panel will be considered not to be accepted by the presenter of the case if any Concerned Person who is a party to the litigation or appeal does not advise, within the same time frame described above in clause 1, the relevant court or administrative tribunal of its intention to withdraw from consideration all issues resolved in the arbitration proceeding.
4. Where the determination of the arbitration panel is not accepted, the case will be closed and will not be eligible for any further consideration by the competent authorities.
XIV. Terminating Proceedings
A. According to subparagraph (c) of paragraph 14 of the Protocol of 2003, MAP, including the arbitration proceeding, with respect to a case will terminate if at any time before the arbitration panel delivers a determination to the competent authorities:
1. the competent authorities have reached a mutual agreement to resolve the case pursuant to paragraph 2 of Article 25 of the Convention;
2. the presenter of the case has withdrawn its request for arbitration;
3. a decision concerning the case is rendered by a court or administrative tribunal of one of the Contracting States during the arbitration proceeding; or
4. if any Concerned Person or their authorized representatives or agents willfully violates the written nondisclosure statement required by subparagraph (b) of paragraph 5 of Article 25 of the Convention, and both competent authorities decide that such violation will result in the termination of the arbitration proceeding.
B. If MAP, including the arbitration proceeding, with respect to the case is terminated under clause 2, 3 or 4 of subparagraph A, both competent authorities will exchange letters to close the case unagreed.
C. At the termination of any proceeding each arbitrator will immediately destroy all documents or other information received from either competent authority, or that otherwise reflect the considerations or discussions of the arbitration panel, and delete all information that may be stored on any computer, personal data assistant or other electronic device or media.
XV. Multiple Adjustments
A. According to subparagraph (f) of paragraph 14 of the Protocol of 2003, where an arbitration proceeding concerns a case comprising multiple adjustments or similar issues each requiring a disposition of specific monetary amounts (for example, of income, profit, gains or expense) or where specified, the maximum rate of tax charged pursuant to the Convention, the proposed resolution may propose a separate disposition for each adjustment or similar issue.
B. Unless both competent authorities decide upon a different presentation to the arbitration panel, the proposed resolution and supporting position paper in such a case will address each adjustment separately, within the overall page limitation.
C. The arbitration panel will make a determination on each adjustment or similar issue separately. Thus, the final determination of the arbitration panel may be comprised of a proposed resolution from the competent authority on one adjustment and a proposed resolution from the other competent authority on another adjustment.
XVI. Permanent Establishment, Residency, and Other Threshold Questions
A. According to subparagraph (e) of paragraph 14 of the Protocol of 2003, in the case of an arbitration proceeding concerning:
1. the taxation of an individual with respect to whom the competent authorities have been unable to reach an agreement regarding the Contracting State of which the individual is a resident;
2. the taxation of the business profits of an enterprise with respect to which the competent authorities have been unable to reach an agreement on whether a permanent establishment exists; or
3. such other issues the determination of which are contingent on resolution of similar threshold questions;
then the competent authorities may submit proposed resolutions separately addressing the relevant threshold questions as described in clause 1, 2 or 3 above (for example, the question of whether a permanent establishment exists), and the contingent determinations (for example, the determination of the amount of profit attributable to such permanent establishment).
B. In such a case, the competent authority is allowed to submit a proposed resolution and supporting position paper which will address each issue separately, taking alternative positions as appropriate. For example, the competent authority is allowed to take a position that no permanent establishment exists in one proposed resolution, and to propose an amount of business profit to be attributable to a permanent establishment in another proposed resolution in case the arbitration panel determines that a permanent establishment exists.
C. The arbitration panel will make a determination on the threshold question and the contingent determination separately.
XVII. Date Arbitration Proceedings Begin for Advance Pricing Arrangement (“APA”) Case
A. According to subparagraph (d) of paragraph 7 of Article 25 of the Convention, the Date Arbitration Proceedings Begin with respect to a case that is the subject of a request for an APA is the later of:
1. six months after an official notification has been issued by the tax authority of either Contracting State of a correction of, or an intent to adjust, the pricing of a transaction or transfer covered by a request for an APA regarding a Concerned Person, unless both competent authorities have decided on a different date and notified the presenter of the case of such decision; and
2. the earliest date on which both competent authorities have received a request for arbitration in subparagraph B of paragraph V accompanied with all necessary attachments as described in subparagraph C of that paragraph.
B. However, the arbitration proceeding will not begin any earlier than two years after the date on which the information necessary to undertake substantive consideration for a mutual agreement on the APA has been received by both competent authorities.
C. The “date on which the information necessary to undertake substantive consideration for a mutual agreement on the APA has been received by both competent authorities” in subparagraph B means the date on which the first position papers regarding the APA case have been exchanged between the competent authorities.
XVIII. Timeframes
A. Notwithstanding the above paragraphs, in an exceptional case both competent authorities may decide to utilize different procedural periods.
B. Both competent authorities will confirm the period so extended and notify the Concerned Person in each Contracting States of that extended period in writing.
XIX. Miscellaneous
In computing the days necessary for an action in this Arrangement, the day when the event beginning this computation occurred will not be counted.
XX. Coordination with Protocol Entry into Force
A. This Arrangement applies to any request for arbitration made pursuant to paragraph 5 of Article 25 of the Convention on or after August 30, 2019.
B. Notwithstanding subparagraphs A and B of paragraph IV, the Commencement Date for a MAP case that was already under consideration by the competent authorities as of August 30, 2019 will be August 30, 2019 (See paragraph 3 of Article XV of the Protocol amending the Convention signed at Washington on 24 January 2013).
C. Both competent authorities may modify or supplement this Arrangement by an exchange of letters between them.
For the Competent Authority of Japan
KOMIYA Atsushi
Deputy Commissioner
International Affairs
National Tax Agency
Date:
For the Competent Authority of the United States of America
Douglas W. O'Donnell
Commissioner,
Large Business and International Division
Internal Revenue Service
Date:
- Institutional AuthorsInternal Revenue Service
- Cross-Reference
- Subject Area/Tax Topics
- Jurisdictions
- Tax Analysts Document Number2021-12823
- Tax Analysts Electronic Citation2021 TNTI 59-172021 TNTG 59-222021 TNTF 59-34
