USA Law and Practice Contributed by: Devon M. Bodoh, Joseph M. Pari and Blake D. Bitter, Weil, Gotshal & Manges LLP
to the Department of Justice for prosecution, the pros - ecutors manage any further investigation and the trial. The trial generally follows the typical judicial proce - dures (eg, jury versus bench trial, rules of evidence, etc) that apply to any federal criminal prosecution in the US. 7. Administrative Co-Operation 7.1 Legal Framework for Administrative Co- Operation The US generally uses bilateral treaties, eg, income tax treaties and tax information exchange agree - ments, as the basis for administrative co-operation for tax matters. 7.2 Exchange of Information Clauses in Tax Agreements The US does exchange information under its income tax treaties and tax information exchange agreements. Whether such information is exchanged automatically, spontaneously or upon request depends on the spe - cific terms of an applicable treaty or agreement and may vary based on the specific type of information being exchanged. 7.3 Other Forms of International Tax Collaboration The USA participates in the OECD’s International Compliance Assurance Programme (ICAP). Accord - ingly, the procedures the US takes to handle any international transfer pricing disputes are generally consistent with those set forth in ICAP. 8. Mutual Agreement Procedures and Arbitration 8.1 Availability and Legal Basis Mutual agreement procedure (MAP) arbitration is available under most US tax treaties. A taxpayer should consult the MAP article under the applicable US income tax treaty to determine whether it is an arbitration treaty and the extent to which mandatory arbitration applies under such treaty. US income tax treaties generally contain a provision which would oblige the US to make corresponding adjustments or
grant access to the MAP with respect to economic double taxation that may otherwise result from a pri - mary transfer pricing adjustment. While US income tax treaties do not generally require the competent authorities to reach an agreement elim - inating double taxation, such treaties do require that the competent authority makes a good faith effort to reach such an agreement. Accordingly, while there is no guarantee that competent authority assistance will result in the elimination of double taxation, a signifi - cant majority of cases conclude with such an agree - ment. 8.2 Application Deadlines Relevant deadlines for submitting a MAP request depend on the relevant income tax treaty under which a MAP request is filed. Some treaties provide a spe - cific timeframe, while others do not (in which case, domestic filing timelines may govern). Accordingly, taxpayers should consult the relevant tax treaty and should generally submit such a request as soon as possible once the taxpayer becomes aware that MAP assistance is required. 8.3 Mandatory Binding Arbitration While not generally available, the US is supportive of mandatory binding arbitration to strengthen MAP pro - grammes. The 2016 Model Treaty and some active US income tax treaties (eg, with Belgium, Canada, France, Germany, Japan, Spain and Switzerland) include a provision for mandatory binding arbitration. The US established an advance pricing agree - ment programme in 1991 (currently referred to as the Advance Pricing and Mutual Agreement or the “APMA” programme). Unilateral, bilateral and multi - lateral advance pricing agreements may be obtained through the APMA programme. The APMA programme also allows taxpayers to enter into an agreement with the IRS regarding transfer pricing methodology. The APMA programme is designed to promote certainty between taxpayers and the IRS and to save resources by preventing potential disputes. In addition, when 9. Dispute Prevention 9.1 Advance Pricing Agreements
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