Introduction
What is a MAP?
Where to file MAP requests
When to file MAP requests
How MAP requests are filed and resolved
Why file a MAP request?
Comment
The Philippines is currently a party to 43 double taxation agreements (DTAs), all of which contain a mutual agreement procedure (MAP) provision.
The Department of Finance recently issued Revenue Regulations (RR) No. 10-2022, which took effect on 23 July 2022. RR No. 10-2022 prescribes the guidelines for filing a MAP request for assistance in resolving DTA disputes.
The MAP article in DTAs allows the competent authority or authorities of the contracting state or states to resolve disputes arising from action by one or both of the contracting states that results or will result in taxation that is not in accordance with a relevant DTA.
If a competent authority of a contracting state is not itself able to arrive at a satisfactory solution, the competent authorities of both contracting states must endeavour (but are not obliged) to resolve, by mutual agreement, any difficulties or doubts as to the interpretation or application of the DTA.
RR No. 10-2022 provides that the competent authority for the Philippines is the commissioner of internal revenue, who may delegate their functions to other competent officials of the Bureau of Internal Revenue (BIR) via a revenue delegated authority order (RDAO). As of writing, no such RDAO has been issued in relation to MAP cases.
Examples of scenarios where MAP assistance may be sought are those involving:
- the DTA tax rate – when the withholding tax rate imposed is beyond the maximum rate fixed under the DTA;
- tax residence – when a taxpayer is deemed to be a resident of both the Philippines and the other contracting state based on domestic laws, in which case the tiebreaker rules under the applicable DTA apply;
- permanent establishment – when a domestic corporation or a resident citizen is taxed in the other country on the business profit or income from independent services despite not having a permanent establishment in that country under the DTA;
- profit attribution – where taxation is not in accordance with a DTA regarding the amount of profit attributable to a permanent establishment;
- income characterisation – when a taxpayer is uncertain as to whether a DTA covers a specific item of income or of the classification of the item related to a cross-border issue; and
- transfer pricing – when a taxpayer is subjected to additional tax in one country because of a transfer pricing adjustment to the price of the goods or services transferred to or from a related party in the other country.
Generally, the Philippines' DTAs require that a MAP request be presented to the competent authority of the contracting state of which the taxpayer is a resident (or a citizen, under the DTA with the United States) or, in cases involving the non-discrimination article of the DTA, to the competent authority of the contracting state of which the taxpayer is a national.
Where the MAP request relates to attribution of profits and transfer pricing adjustments, taxpayers are strongly encouraged to ensure that the associated enterprise in the other contracting state also contacts its competent authority.
The MAP request must be filed within the time limit specified in the relevant DTA. If the DTA does not specify a time limit, the MAP request must be filed within three years from the first notification of the action resulting in taxation not in accordance with the DTA.
The filing period is reckoned from the date of receipt of the final assessment notice or of a ruling denying the claim for treaty benefit, or any equivalent document which contains the action that results from double taxation.
RR No. 10-2022 provides that the receipt of a valid MAP request will determine the start date for a MAP request for purposes of determining whether it was filed in a timely manner. A MAP request will not be regarded as initiated until all the relevant information requested has been provided.
How MAP requests are filed and resolved
A MAP request is filed, manually or electronically via an encrypted email, with the International Tax Affairs Division (ITAD).
A MAP request should contain the minimum information and certified true copies of the relevant documents required under section 5(3) of RR No. 10-2022.
The ITAD is responsible for the receipt, detailed analysis and initial review of MAP cases. The proposed resolution or action of the ITAD is subject to review by the assistant commissioner for legal service, the deputy commissioner for legal group, and finally, by the commissioner of internal revenue or their representative.
The possible outcomes of a MAP request include, among others:
- a MAP denial;
- a grant of unilateral relief;
- a MAP agreement (for elimination of double taxation or stating that there is no taxation not in accordance with the DTA); or
- a failure to reach a MAP agreement (including an agreement to disagree).
RR No. 10-2022 provides that a MAP case must be resolved within an average of 24 months from receipt of a complete MAP request, subject to the complexity of the case and the cooperation of the taxpayer and the competent authorities.
When a MAP agreement is reached and is accepted by the taxpayer, it may be implemented within the time limit specified in the relevant DTA, notwithstanding any time limit under the National Internal Revenue Code 1997, as amended (the Tax Code). However, if the relevant DTA is silent on the period of implementation of the MAP agreement, implementation is subject to the statute of limitations under the Tax Code.
When the taxpayer is notified that no MAP agreement is reached, the taxpayer may pursue any available domestic remedies.
MAP assistance may be requested irrespective of domestic remedies. Thus, RR No. 10-2022 provides that a taxpayer may file a MAP request even in situations where a decision, ruling or final assessment has already been rendered by the competent officials of the BIR.
However, a MAP case cannot proceed simultaneously with judicial or administrative appeals. Thus, if a judicial or administrative proceeding is ongoing, the taxpayer must notify the competent authority of such fact and of its decision to suspend either the resolution of the MAP case or the judicial or administrative proceeding. Further, the commissioner of internal revenue is bound by and cannot deviate from a final domestic court decision on a taxpayer's liability. Only issues not decided by the court with finality will be discussed in MAP proceedings.
The issuance of RR No. 10-2022 is a step forward in ensuring the Philippines' compliance with its tax treaty obligations. Hopefully, as envisioned by RR No. 10-2022, the ITAD will be provided with adequate resources (such as staff augmentation, training, funding for travelling expenses and a subscription to a commercial database for determining external comparables) to enable it to resolve MAP cases in a timely and effective manner.
As the MAP may be availed of irrespective of domestic remedies, a taxpayer must consider the merit of filing a MAP request based on the particular issues involved and considering, among other things, any available domestic remedies and the relevant time limits both under the applicable DTA and the Tax Code. In terms of cost, RR No. 10-2022 provides that fees associated with the negotiation of bilateral or multilateral advance pricing arrangements or with the hiring of independent experts or mediators shall be shouldered by the party initiating the MAP request.
Prior to filing a MAP request, a taxpayer may request a pre-filing consultation with the chief of the ITAD. If the ITAD chief believes that the issues may be resolved through MAP, the taxpayer will be advised to submit a formal request for MAP assistance. Assuming it will be resolved expeditiously, a pre-filing consultation may be useful for a taxpayer that is considering filing a MAP request.
For further information on this topic please contact Maria Viola B.Vista at SyCip Salazar Hernandez & Gatmaitan (SyCipLaw) by telephone (+632 8982 3500, +632 8982 3600, +632 8982 3700) or email ([email protected]). The SyCipLaw website can be accessed at www.syciplaw.com.
Carina C Laforteza, partner and head of the tax department, assisted in the preparation of this article.