BELGIUM Law and Practice Contributed by: Robin Minjauw and Anouk Van der Mast, Tiberghien
8. Mutual Agreement Procedures and Arbitration 8.1 Availability and Legal Basis Belgium has a mutual agreement procedure (MAP) programme, which is regulated by: • a special provision included in each Belgian tax treaty (generally Article 25); • Convention No 90/436/EEC on the elimination of double taxation in connection with the adjustment of profits of associated enterprises (the “EU Arbi - tration Convention”); and • the EU Directive on Tax Dispute Resolution Mecha - nisms (Directive 2017/1852) (the “Act of 2 May 2019”). Where the EU Arbitration Convention only applies to transfer pricing disputes between associated enter - prises that are established in an EU member state, the Tax Dispute Resolution Mechanisms Directive also covers disputes over the interpretation and applica - tion of tax treaties. The MAP included in tax treaties also allows taxpayers to resolve incorrect applications of the treaty. Certain older tax treaties require, for the MAP to apply, that measures taken by Belgium or the other contracting state have resulted, or will result, in double taxation contrary to the tax treaty. Double taxation is also a prerequisite for the MAP to apply under the EU Arbi - tration Convention. 8.2 Application Deadlines With regard to the MAP provided in tax treaties, the request for a MAP should be filed within the limit pro - vided in the relevant tax treaty. Each tax treaty speci - fies its own time limit for the MAP application. The MAP request under the EU Arbitration Convention and the Act of 2 May 2019 must be filed within three years from the first notification of the action which results or is likely to result in double taxation. 8.3 Mandatory Binding Arbitration Mandatory binding arbitration is not generally included in all Belgian tax treaties – even though a mandatory arbitration clause is included in the Belgian Model Tax Convention. Where included, the mandatory arbitra -
In addition to the general multilateral instruments, Bel - gium enhances administrative co-operation through more specific instruments such as the Benelux Agree - ment on Cooperation between Administrative and Judicial Authorities. The latter agreement enables the exchange of information relating to customs, excise and consumption taxes between the Benelux states. Belgium has also entered into several co-operation agreements Moreover, Belgian bilateral tax treaties generally include an exchange of information provision based on the OECD Model (Article 26). This provision pro - vides that the competent authorities shall exchange any information that is foreseeably relevant for the application of the treaty or for the enforcement of domestic tax laws, as long as it does not conflict with the tax treaty (Article 8.2). Belgium has also concluded Tax Information Exchange Agreements (TIEAs) with countries with which it has no tax treaty (generally low or no tax jurisdictions). 7.2 Exchange of Information Clauses in Tax Agreements The exchange of information under tax treaties can be “spontaneous”, “automatic” or “on-request”, depend - ing on the text of the tax treaty (and protocols to the tax treaty). The competent authorities are responsible for exchanging information and must keep all informa - tion received strictly confidential. 7.3 Other Forms of International Tax Collaboration Belgium participates in the OECD’s International Com - pliance Assurance Programme (ICAP), which enables MNEs and tax administrations to collaborate in a co- operative risk‑assessment process. A new legal framework for joint tax audits – as intro - duced under DAC7 – has also been implemented in Belgian domestic law. It creates a legal basis for co- ordinated tax audits involving revenue authorities from two or more member states.
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