New Zealand has 40 double taxation agreements (DTAs), each with an article establishing a mutual agreement procedure (MAP) for resolving difficulties arising out of the application of the particular DTA. New Zealand has 11 tax information exchange agreements (TIEAs) in force which also contain a MAP article, as well as 6 supplementary agreements to these TIEAs which include a MAP article. In addition, the DTAs with Australia and Japan contain arbitration clauses for resolving disputes.
New Zealand's DTAs generally follow the OECD Model Tax Convention (OECD MTC). New Zealand has made no observations or reservations on Article 25 of the OECD MTC which covers the MAP.
Under the MAP article, the competent authorities of the contracting states engage with each other and endeavour to resolve disputes that arise from the way one or both contracting states are interpreting or applying the particular DTA. Article 25 effectively equips the tax administrations with the practical means to ensure that cross-border income earning activity is taxed correctly in accordance with DTAs.
The New Zealand competent authority role falls in the first instance on the Commissioner of Inland Revenue, but in practice is delegated to John Nash (Strategic Advisor, International) who leads on double taxation cases arising from audit/compliance activities, and Carmel Peters (Strategic Policy Advisor) who leads on treaty interpretation issues. These 2 competent authorities work closely together and interact with other divisions of Inland Revenue as needed to resolve MAP cases. The competent authorities act independently of others, forming their own view of issues in dispute.
Our overall aim is to complete MAP cases within 12 months of receiving a request for assistance. The time taken to resolve MAP cases will vary depending largely on the complexity of the matter in dispute.
For the 2021 calendar year, 13 MAP cases were completed, with an average cycle time to completion of 7 months.
For the 2022 calendar year, there were 26 completions, with an average cycle time of 7 months.
For the 2023 calendar year, there were 24 completions, with an average cycle time of 8 months.
Scope of MAP
Our general position is to support the availability of the MAP in a wide range of double taxation cases, including those arising from:
- transfer pricing adjustments
- attributing profits to permanent establishments
- determining residence for individuals and companies
- withholding taxes deducted incorrectly
- the application of anti-abuse provisions in DTAs or the general anti-abuse doctrine applicable to the interpretation of DTAs
- the application of domestic anti-avoidance provisions
- bona fide taxpayer-initiated foreign adjustments.
The OECD MTC allows for competent authorities to consult together for the elimination of double taxation in cases not provided for by a particular DTA. Our general approach is to allow taxpayers the benefit of the MAP where possible, so the terms of individual DTAs should be read broadly. If the terms of a DTA are unclear, New Zealand will allow access to the MAP.
Domestic disputes process
Part 4A of the Tax Administration Act 1994 contains the domestic administrative procedures for resolving tax disputes. Taxpayers can initiate the MAP and the domestic disputes process simultaneously. Access to MAP is not limited with respect to matters resolved through the Disputes Review Unit. Requesting assistance to resolve a dispute under the MAP does not preclude any domestic action. A request for assistance under the MAP can be made even if an audit settlement has been agreed domestically.
The competent authority is legally bound to follow a domestic court decision in MAP cases but is willing to enter into dialogue with other competent authorities to explain the New Zealand position in any case where double taxation may have arisen as a consequence.
Suspension of Collection Procedures
We apply the same conditions to collection for cases in progress under MAP as we apply to a person pursuing a domestic administrative or judicial remedy. Collection procedures are suspended during the period in which a valid MAP case is proceeding, unless there is a significant risk that the tax in dispute will not be paid.
Filing a MAP request
We generally follow the 3-year time limit in the OECD MTC. However, there are variations across our DTA network so please read the relevant DTA article in this regard.
No fees are charged for a MAP request.
We have found that pre-filing conferences produce a well-informed understanding by all concerned of both the substantive and procedural issues that could arise in considering a proposed MAP case. They lead to a more focused approach and a marked reduction in the information required from the taxpayer to initiate the MAP case. Early engagement with 'all cards on the table' is the most effective means to fast-track dispute resolution.
MAP requests should be submitted to:
John Nash
Strategic Advisor (International)
Inland Revenue
PO Box 2198
Wellington 6140
In any case where it appears that a MAP request may be inadmissible or not justified, we will write to the competent authority of the other contracting state setting out the reasons why we consider the request to be invalid and invite the other competent authority to provide their views before making a final decision on whether to accept or reject the request.
In an appropriate case, where the relevant DTAs allow, we will engage with other competent authorities to resolve the matter multilaterally. If the relevant treaty network does not provide a mechanism to work multilateral cases, we will engage bilaterally but in a coordinated manner, making use of exchange of information provisions to resolve the matter as efficiently as possible. Other jurisdictions may follow different approaches due to their own legal requirements, so we work to coordinate early with their competent authorities on practical measures that can be taken to consider the case multilaterally.
Information required in a MAP request
Taxpayers can facilitate the MAP by ensuring the competent authorities of both contracting states receive complete, accurate and timely information. Depending on what may be determined as a result of a pre-filing conference, the following information should be included in a taxpayer's MAP submission.
| Question | Checklist |
|---|---|
|
1 |
Name, address and IRD number of the taxpayer. |
|
2 |
The provision of the specific article of the DTA which the taxpayer considers is not being applied correctly by either one or both contracting states. |
|
3 |
The relevant facts of the case including any documentation substantiating these facts, the period involved and the amounts involved. |
|
4 |
An analysis of the issues involved supported by relevant documentation. |
|
5 |
Where a request has also been made to the competent authority of the other contracting state, a copy of that submission. |
|
6 |
If the issue has been previously dealt with by some other means (such as an advance ruling, advance pricing agreement (APA) or settlement agreement), then a copy of any relevant ruling or agreement. |
|
7 |
If the MAP request has been submitted to another authority under another instrument that provides for a mechanism to resolve treaty-related disputes, then a copy of that submission (including all related documentation) unless the content of both MAP submissions are exactly the same. |
|
8 |
If the MAP request is 'protective' (that is, submitted to ensure compliance with a time frame provided under the relevant tax treaty but not to be examined until further notification from the taxpayer to do so), then a clear statement to this effect. |
|
9 |
A final statement confirming that all information provided in the MAP request is accurate and additional information will be provided in a timely manner if required by the competent authority. |
In multilateral cases, so that competent authorities can discuss and find a resolution, taxpayers should identify the following:
- details of all associated parties and connected jurisdictions involved in the relevant transactions
- details of all relevant transactions, including diagrammatical representation where possible
- details of all treaties that are relevant to the MAP case
- details of action(s) that create taxation, or the possibility of taxation, not in accordance with such treaties
- an analysis of the issue(s) to be resolved in all jurisdictions and related documentation (particularly for transfer pricing issues)
- details of other MAP requests being submitted simultaneously on the same issue
- details of pending audits, domestic remedies initiated or decisions from such remedies in any of the jurisdictions in connection with the transactions.
Implementation of MAP agreements
Assessments for additional tax or refunds are processed as soon as possible and generally within 1 month of concluding a MAP case.
Where the correctness of a taxpayer's underlying tax position is disputed under the MAP, the imposition of penalties and interest are not generally deferred until that dispute is resolved. Penalties and interest can only be deferred if the Commissioner's assessment is challenged through either the domestic disputes process in the TAA or the New Zealand courts.
Taxpayers may request multi-year resolution of recurring issues through the MAP. Transfer pricing disputes may be resolved through the conclusion of APAs. Unilateral APAs can be rolled back without restriction for at least 4 income years. If the APA has been made pursuant to a DTA that contains a specific time limit override then there is no restriction on rolling back the agreed transfer pricing methodology.
Downward adjustments, primarily arising from transfer pricing disputes, will only be made after notification to the competent authority of the other contracting state. This is to prevent an outcome that leads to non-taxation of all or part of the adjustment made.
From time to time, agreements are also reached between competent authorities resolving difficulties or doubts arising as to the interpretation or application of a tax treaty in relation to issues of a general nature which concern or which may concern a category of taxpayers. Provided the competent authority of the other contracting state consents, we will publish such agreements on the Tax treaties section of our Tax Policy website.