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OECD releases 2015 Mutual Agreement Procedure statistics

Executive summary

On 5 December 2016, the Organisation for Economic Co-operation and Development (OECD) released its annual statistical publication on the Mutual Agreement Procedure (MAP) caseloads of all OECD member countries and partner economies (i.e., non-OECD member countries) for the 2015 reporting period.1 The report covers opening and ending inventory of MAP cases for 2015, the number of new MAP cases initiated, the number of MAP cases completed, cases closed or withdrawn, and the average cycle time for cases completed, closed or withdrawn cases.

Detailed discussion

Overall 2015 inventory

The statistics show that at the end of the 2015 reporting period, there were 6,176 open cases reported by OECD member countries, a 14% increase over 2014 data and a 163% increase when compared to the 2006 reporting period. MAP cases involving two OECD member countries are double-counted in this total. Germany (1,147), the United States (998), Belgium (632) and France (566) had the largest ending inventories of MAP cases in 2015. In the aggregate, MAP inventories in OECD member countries at the end of the reporting periods show a continuous increase from 2006 to 2015, with a slight decrease in 2010.

The separation of reported MAP cases into cases between OECD member countries and cases between OECD and partner economies continues to show, in general, that more than 90% of OECD member countries’ MAP inventories are cases with other OECD member countries.

MAP cases initiated during 2015

According to the OECD data, member countries saw an 11% increase in new MAP cases initiated in 2015, rising to 2,509 cases from 2,259 in 2014. Belgium experienced the largest overall number of new MAP cases of all member countries (from 205 in 2014 to 428 in 2015). Of the top 10 member countries based on number of new cases, Belgium had the highest growth of 109%, followed by Luxembourg at 83% (from 116 in 2014 to 212 in 2015), the Netherlands at 47% (from 87 in 2014 to 128 in 2015) and Switzerland at 36% (from 109 in 2014 to 148 in 2015). Table 1 below presents the 10 OECD member countries with the highest number of MAP cases initiated in 2015:

Table 1: Countries with the highest number of new MAP cases in 2015

Country

Number of new cases

Belgium

428

Germany

363

United States

289

Luxembourg

212

France

173

Switzerland

148

Canada

130

Netherlands

128

United Kingdom

115

Sweden

92

Source: OECD

MAP cases completed in 2015

While 2,509 new MAP cases were initiated in 2015, 809 cases (including those with partner countries) were reported to have been completed in 2015. This represents an increase in completion rates of approximately 67% from the 484 cases reported completed in 2014.

The five countries completing the most MAP cases in 2015 were the United States (215), Belgium (185), Luxembourg (149), France (39), and Sweden (38).

Average cycle time for cases completed, closed or withdrawn

For the OECD countries for which data was provided, the average time for the completion of MAP cases with other OECD member countries in 2015 was 20.47 months, a slight decrease of the 2014 average cycle time of 23.79 months.

New reporting framework in 2016

The OECD noted that 2015 is the last reporting period for which statistics will be provided in this particular format. Starting in 2016, members of the inclusive framework on the OECD’s Base Erosion and Profit Shifting (BEPS) Action Plan will use a substantially revised reporting framework that has been developed for use in monitoring the implementation of the BEPS Action 14 minimum standard, which calls for improving the effectiveness of treaty dispute resolution mechanisms.

As part of the Action 14 minimum standard, members of the inclusive framework on BEPS will report MAP statistics pursuant to an agreed reporting framework designed to provide a tangible measure of the effects of implementing the minimum standard.2 The MAP statistics that will be made available for 2016 and subsequent years will contain additional information and include reports from a significant group of non-OECD economies, most of which do not currently report MAP statistics to the OECD.

Implications

The rapid introduction of BEPS-related measures by governments may lead to two jurisdictions disagreeing on the interpretation or application of a treaty provision and therefore to more tax disputes. The Mutual Agreement Procedure is one of the tools for multinational enterprises to consider using to address such issues.

The release of this data by the OECD is part of its effort to improve dispute resolution processes, in line with Action 14 of the BEPS project and the recent launch of the OECD Multilateral Instrument (MLI).3 The OECD continues to increase efforts to drive transparency on the availability and quality of MAP processes, as well as to try and improve the MAP process itself. This includes, inter alia:

  • Introducing a Minimum Standard for improving dispute resolution with BEPS Action 14, as well as a number of complementing best practices. This Minimum Standard is also included in Article 16 of the MLI4 and requires countries to include in their tax treaties the provisions regarding the MAP of article 25 paragraph 1 through paragraph 3 of the OECD Model Tax Convention, including certain modifications of those provisions.
  • A peer review5 of the various OECD member and partner MAP processes under BEPS Action 14.
  • The availability of a number of jurisdiction-specific MAP profiles which have been published on the OECD website.6
  • A new methodology for the preparation of MAP statistics, which will be utilized for 2016 reporting and onwards.

Readers may also be interested to access the EY Global Tax Alert of 2 December 2016, titled Mandatory Binding Treaty Arbitration under OECD’s Multilateral Instrument.

As noted by Pascal Saint-Amans (Director of the OECD’s Centre for Tax Policy and Administration) in a webcast on 5 December 2016,7 while there is no legal obligation for governments to reduce double taxation, concerted action in this area – including public reporting on the efficiency and efficacy of MAP processes – will increase the pressure on decision-makers.

Endnotes

1. http://www.oecd.org/ctp/dispute/oecd-releases-mutual-agreement-procedure-map-statistics-for-2015.htm.

2. http://www.oecd.org/tax/beps/beps-action-14-peer-review-and-monitoring.htm.

3. See EY Global Tax Alert, Mandatory Binding Treaty Arbitration under OECD’s Multilateral Instrument, dated 2 December 2016.

4. See EY Global Tax Alert, OECD releases multilateral instrument to implement treaty related BEPS measures on hybrid mismatch arrangements, treaty abuse, permanent establishment status and dispute resolution, dated 2 December 2016.

5. http://www.oecd.org/tax/dispute/beps-action-14-on-more-effective-dispute-resolution-peer-review-documents.pdf .

6. http://www.oecd.org/tax/dispute/country-map-profiles.htm.

EYG no. 04198-161Gbl

Download this Tax Alert as a PDF file

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