IRELAND Law and Practice Contributed by: Amelia O’Beirne and Trevor Glavey, A&L Goodbody
enterprises and tax administrations in the jurisdictions in which they operate. Similar to joint audits, while participation in such initiatives in Ireland has been limited to date, it is expected that engagement with such initiatives by multinationals may increase going forward as experience with them grows. 8. Mutual Agreement Procedures and Arbitration 8.1 Availability and Legal Basis Ireland has a mutual agreement procedure (MAP) pro - gramme. Although Ireland only formally established its international transfer pricing branch and formalised its MAP programme in 2015, it did engage in MAPs prior to this. In terms of legal basis, all of Ireland’s tax treaties pro - vide for MAPs, typically under Article 25 of its DTAs. In its most recent peer review report on Ireland, the OECD confirmed that Ireland meets all the minimum standard requirements regarding availability of and access to MAPs. Taxpayers may also present a MAP request pursuant to the following mechanisms (although these avenues are limited to intra-EU disputes only): • Article 6 of the EU Arbitration Convention in rela - tion to transfer pricing-related adjustments or mat - ters pertaining to allocation of profit to permanent establishments; and • the EU Tax Dispute Resolution Mechanism (EU TDRM) where a dispute arises from the interpreta - tion/application of a DTA or the EU Arbitration Con - vention in respect of income or capital earned in a tax year commencing on or after 1 January 2018. 8.2 Application Deadlines The deadline for submitting a MAP request is deter - mined by the relevant DTA. Ireland’s tax treaties typi - cally follow Article 25 of the MTC, which provides that a request for a MAP must be submitted within three years from the first notification of the event that results or is likely to result in taxation not in accordance with the DTA. The relevant DTA should always be consulted to confirm the applicable time limit in each case.
For applications that are made under the EU Arbitra - tion Convention or the EU TDRM, the deadline is three years from the date of the first notification of the action resulting or likely to result in double taxation. Revenue is also clear in their MAP guidance that any request submitted outside the time limit set forth in the relevant double tax treaty will not be accepted. 8.3 Mandatory Binding Arbitration Mandatory binding arbitration may apply in connec - tion with MAPs, depending on the avenue pursued. DTAs Certain of Ireland’s DTAs contain mandatory binding arbitration clauses committing the contracting states to a process of arbitration in the event of no agree - ment being reached via a MAP. Ireland has opted into the mandatory binding arbitration clause in the MLI such that mandatory binding arbitration will apply to Irish DTAs where the treaty partner has also imple - mented the relevant provisions of the MLI. Regard must therefore be had to the particular DTA partner’s status under the MLI. EU Arbitration Convention If resolution is not achieved within 24 months, an advisory committee is set up to decide the case and deliver a decision within six months (unless both competent authorities, by mutual agreement and with the agreement of the taxpayer concerned, waive the 24-month time limit). The competent authorities must then act within six months in accordance with that decision, unless they reach an alternative agreement to eliminate double taxation. EU TDRM If resolution is not achieved within 24 months (36 months where extended), the taxpayer can request that an advisory committee be set up to decide the case and deliver a decision within six months (or by extension nine months). The competent authorities must then act within the period unless they reach an alternative agreement to eliminate double taxation.
203 CHAMBERS.COM
Powered by FlippingBook