Practitioners

Taxpayer choice of mechanisms

Taxpayers, and practioners who represent them as clients alike, may have an interest in an effective resolution of international tax disputes in two different capacities. Either, they are themselves party in a dispute. Or, it is their case, and their taxpayer money, that is at stake.

Often, taxpayers have a choice from various out-of-court dispute resolution mechanisms, at domestic level as well as at international level.

Domestic level

Domestically, taxpayers may have mediation or technical advice available as means to reach a settlement, and in some countries arbitration as well.

International level: ISDS and tax treaties

Internationally, where applicable legal frameworks are in place, taxpayers may claim arbitration. For example, under investment treaties applying the ISDS (investor-state dispute settlement) mechanism, taxpayers may claim arbitration as a party in its own right. Under tax treaties, while only authorities are parties to a dispute, taxpayers may nevertheless claim mandatory arbitration if authorities fail to mutually agree a timely settlement. Taxpayers may also suggest using mediation or facilitation or technical advice to authorities, in order to achieve such timely settlement, but that use is not mandatory.

EU Council Directive (2017/1852) and MLI

Moreover, under tax treaties taxpayers may even have various arbitration mechanisms they can opt from. Within the EU, for instance, there may simultaneously apply Council Directive (2017/1852) on tax dispute resolution mechanisms, next to bilateral tax treaties providing own arbitration provisions or supplemented by the arbitration piece under the Multilateral Convention to implement tax treaty related measures to prevent base erosion and profit shifting (MLI), and, specifically where it concerns disputes over transfer pricing issues, also the Union Arbitration Convention (90/436/EEC).

These domestic and international mechanisms tend to each apply different terms and conditions, timelines, procedures, and allow different extents of taxpayer participation or taxpayer rights, if any at all. At the same time, a choice a taxpayer has once made, is often final, prohibiting other choices. Any choice therefore requires careful consideration first.

Advice and training

Tribute is available for general presentations as well as individual, tailored advice on the availability and application of these various domestic and international mechanisms, and on what makes the best choice from taxpayer perspective, given the particulars of a dispute in hand.

Also, Tribute can provide training in how taxpayer interests and views may effectively be presented in tax treaty mutual agreement (MAP) procedures and arbitration processes, where taxpayers are not party and their role at best is that of fact witness.

Clauses, procedures and practical facilities

Occasionally, taxpayers may be faced with issues of agreeing clauses or procedures providing for tax dispute resolution, for instance under tax concession or tax stability agreements with governments, or under indemnity clauses in contracts with other private, commercial parties.

Occasionally also, taxpayers may have to agree with other parties in dispute such logistical matters as venue and modes for hearings, or the provision of case administration.

Tribute can advice and assist taxpayers or practitioners in the drafting of clauses or procedures for any mechanisms of international tax dispute resolution. Also, Tribute can support any dispute resolution processes with whatever practical facilities needed, either from Tribute’s own resources or through established arbitration institutes which Tribute maintains relations with for this purpose.

Selection of arbitrators, mediators, technical advisors, or expert witnesses

More often, taxpayers may be seeking independent experts for appointment as either arbitrators, mediators or facilitators, or technical advisers in dispute resolution processes. This will usually concern procedures to which taxpayers are themselves party, such as on domestic tax disputes or in investor-state (ISDS) arbitrations. But it may also be to suggest to authorities, for purposes of advancing resolution of their disputes in tax treaty MAP procedures which concern the taxpayers’ interests.

Specifically under the EU Council Directive (2017/1852), taxpayers may suggest experts for appointment as arbitrators by local courts, in cases where disputing authorities have failed to appoint in time.

Further, taxpayers may be seeking independent experts for purposes of presenting expert written or oral witness testimonies in dispute resolution processes.

Tribute, through its diverse Tribute list of experts, can assist taxpayers or practitioners in selecting qualified experts for appointment in any of these capacities as either arbitrator, mediator or facilitator, technical adviser, or expert witness.

Specifics of services and fees

The Tribute secretariat can be contacted for further guidance on specifics of available services, including applicable fees.

It must be noted, however, that Tribute is not available for any advice on disputed substance matters, like a tax adviser or attorney of law. This is outside the Tribute aims and competences.

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