Alternative tax dispute resolution techniques: Is litigation the only option?

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1 Alternative tax dispute resolution techniques: Is litigation the only option? Moderator: Milan 6 February 2014 Ulrich Raensch (Baker & McKenzie, Frankfurt) Pedro Aguaron (Baker & McKenzie, Barcelona) Richard Fletcher (Baker & McKenzie, London) Paul Halprin (Baker & McKenzie, Amsterdam) David Jamieson (Baker & McKenzie, London) Giuliana Polacco (Baker & McKenzie, Milan) Baker & McKenzie LLP is a member firm of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a "partner" means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an "office" means an office of any such law firm.

2 Alternative tax dispute resolution techniques in the UK

3 Alternative tax dispute resolution in the UK What is ADR? In its widest sense, ADR is any process that resolves disputes outside of court e.g. arbitration or mediation Common feature of commercial litigation in most jurisdictions where ADR has been very effective in resolving disputes and reducing costs Most common form of ADR is mediation. The approach of the UK tax authority is to use mediation, in particular facilitated discussions or facilitative mediation 3

4 Alternative tax dispute resolution in the UK How can ADR be applied to tax matters? ADR can uncover the right amount of tax The challenge tax disputes are not the same as commercial disputes which presents challenges: For tax authorities they need to settle cases only on the basis of their understanding of the law and are unlikely to trade off one issue with another For taxpayers they need to be prepared to be open and transparent on all of the material facts 4

5 Alternative tax dispute resolution in the UK What are the benefits of ADR? A third party changes the dynamics and brings a fresh perspective which should increase prospects of a settlement Can improve/repair relationships Any settlement may be a better outcome than litigation a win for both sides Clarifies facts and issues (and may narrow issues in dispute) so relevant for case preparation generally so little downside in the event there is no settlement 5

6 Alternative tax dispute resolution in the UK UK experience ADR pilot successful Pilot finished in March 2013 and ADR has now been adopted by HMRC and managed by a small dedicated team Approx. 50% of the applications for ADR were accepted (45% in phase 1 and 67% in phase II). Biggest reason for rejection was that the case was stayed behind a lead case Success rate approx. 75% (half of which result from the first meeting, and the other half from further discussions) 6

7 Alternative tax dispute resolution in the UK UK experience ADR pilot successful Surprise success of using mediation-trained tax authority officers to facilitate discussions Highest number of applications VAT, followed by corporate tax and then personal tax 7

8 Alternative tax dispute resolution techniques in the Netherlands: Mediation 8

9 Alternative tax dispute resolution in the Netherlands: mediation Procedural steps under Dutch law: Objection against tax assessment with Dutch tax authorities Appeal against decision of tax authorities with District Court Appeal against District Court decision with Court of Appeal Cassation by the Netherlands Supreme Court 9

10 Alternative tax dispute resolution in the Netherlands: mediation Alternative dispute resolution: Arbitration Mutual agreement procedures Mediation 10

11 Alternative tax dispute resolution in the Netherlands: mediation Mediation can be applied: during an audit; during an objection procedure; during an appeal procedure; during a complaint procedure Not suitable for cases involving penalties/criminal cases 11

12 Alternative tax dispute resolution in the Netherlands: mediation Legislative proposal in the Netherlands in 2013 to embed mediation in the Dutch legal system Goal is to position mediation as equivalent alternative form of dispute resolution No obligation for taxpayers to make use of mediation 12

13 Alternative tax dispute resolution in the Netherlands: mediation Dutch tax authorities have their own mediators Also possible to use external mediator Goal: settlement agreement 13

14 Alternative tax dispute resolution in the Netherlands: mediation Pros: May offer quick and effective solution Bespoke solution without losing control over the case Relatively cheap Cons: Voluntary (parties cannot be forced to enter into mediation) Not without obligation 14

15 Alternative tax dispute resolution techniques in Spain: Mutual Agreement Procedures 15

16 Alternative tax dispute resolution in Spain: mutual agreement procedures General aspects of the MAP: Reason for the MAP: a) taxation not in accordance with the tax convention; b) difficulties or doubts as to the interpretation or application of the convention; c) avoidance of double taxation When the MAP can be initiated; dies ad quo Compatibility of the MAP procedure with the domestic remedies. Limitations When to use the alternative of a MAP instead of domestic litigation 16

17 Alternative tax dispute resolution in Spain: mutual agreement procedures Problems which may arise under the MAP procedure; arbitration Frequent cases where the initiation of a MAP may be encouraged: Qualification conflicts such as software characterization as royalty or as business profit Permanent establishment interpretation especially where a country deviates from the OECD Commentaries Initiation of a MAP may be rejected by some of the States; penalties, tax fraud 17

18 Alternative tax dispute resolution in Spain: mutual agreement procedures MAP procedure phases: Phases of a MAP: Initiation; who, when and where Procedure itself; flexibility of the procedure Termination: with a final agreement or without agreement: Is arbitration still possible? Execution of the agreement Is it possible the reformatio in peius in a MAP process? 18

19 Alternative tax dispute resolution in Spain: mutual agreement procedures Different alternatives of MAP/ arbitration in Spain depending on where a tax action is initiated Action initiated by the Spanish Tax Administration Action initiated by the Tax Administration of a foreign state Double Tax Treaties Initiated before Spanish Competent Authority Initiated before foreign Competent Authority European Arbitration Convention Initiated before Spanish Competent Authority Initiated before foreign Competent Authority

20 Alternative tax dispute resolution techniques in Italy: Mutual Agreement Procedures and APAs

21 Alternative tax dispute resolution in Italy: mutual agreement procedures and APAs Settlement options during audit phase or after the audit is concluded Alternative dispute resolution: MAP APA 21

22 Alternative tax dispute resolution in Italy: mutual agreement procedures and APAs Why alternative dispute resolution is appealing: Attitude of tax courts toward large TP disputes Public perception of the company in case of tax disputes Litigation is time consuming Settlement entitles reduction of penalties to 1/3 (1/6) Reduction of criminal law sanctions Elimination of double taxation in case of transfer pricing under the Arbitration Convention (in case of compliant TP documentation) 22

23 Alternative tax dispute resolution techniques in Germany: The Formal Agreement on Facts 23

24 Alternative tax dispute resolution in Germany: the formal agreement on facts Federal Tax Court confirmed that tax administration and taxpayer can settle tax disputes on the basis of a formal agreement on the underlying facts Disputes about the interpretation of the law cannot be settled by agreement Can legal issues be converted into factual issues? 24

25 Alternative tax dispute resolution in Germany: the formal agreement on facts A settlement by a formal agreement on facts can be concluded: During an ongoing audit Prior to, or after the release of the tax assessment notices (e.g., to settle an administrative appeal) At court level Even during criminal tax proceedings 25

26 Alternative tax dispute resolution in Germany: the formal agreement on facts A settlement by a formal agreement on facts can only be concluded in respect of past periods but: after a tax audit, it can be combined with a binding commitment on the part of the tax office as to how certain facts and circumstances will be treated for taxation purposes in the future 26

27 Alternative tax dispute resolution in Germany: the formal agreement on facts Residual relevance of litigation: If a settlement at court level is expected to be more favorable than at the administration level If questions of principal importance for the taxpayer are at stake If certain practices may be, or have been, qualified by officials as tax fraud 27

28 Questions? Thank you! Baker & McKenzie LLP is a member firm of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a "partner" means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an "office" means an office of any such law firm.

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