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Slovenia signs Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS

Executive summary

On 7 June 2017, Slovenia and other 67 jurisdictions signed the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS (the MLI) during a signing ceremony hosted by the Organisation for Economic
Co-operation and Development (OECD) in Paris.1

At the time of signature, Slovenia submitted a list of 58 tax treaties entered into by Slovenia and other jurisdictions that Slovenia would like to designate as Covered Tax Agreements (CTAs), i.e., tax treaties to be amended through the MLI. Together with the list of CTAs, Slovenia also submitted a provisional list of reservations and notifications (MLI positions) in respect of the various provisions of the MLI. The definitive MLI positions will be provided upon the deposit of its instrument of ratification, acceptance or approval of the MLI.

Detailed discussion

Background

On 5 October 2015, the OECD released its final report on developing a multilateral instrument to modify bilateral tax treaties under its BEPS Action Plan (Action 15). This report was released in a package that included final reports on all 15 Base Erosion Profit Shifting (BEPS) Actions.

On 24 November 2016, the OECD released the text of the MLI and explanatory notes.2

On 7 June 2017, 68 jurisdictions3 signed the MLI during a signing ceremony hosted by the OECD in Paris. Nine other jurisdictions expressed their intent to sign the MLI in the near future.4

Together with the list of CTAs, signatories also submitted a preliminary list of their MLI positions in respect of the various provisions of the MLI. The definitive MLI positions for each jurisdiction will be provided upon the deposit of its instrument of ratification, acceptance or approval of the MLI.

Structure of the MLI

Recognizing the complexity of designing a general instrument that applies to the CTAs and to the specific provisions included in bilateral tax treaties, the MLI provides flexibility for Contracting Jurisdictions to implement (parts of) the MLI based on their needs.

Many of the provisions of the MLI overlap with provisions found in CTAs. Where the provisions of the MLI may conflict with existing provisions covering the same subject matter, this conflict is addressed through one or more compatibility clauses which may, for example, describe the existing provisions which the MLI is intended to supersede, as well as the effect on CTAs that do not contain a provision of the same type.

Countries have the right to reserve certain parts of the MLI (opt-out) and to have these specific articles not apply to their tax treaties.

The different types of provisions

The MLI contains four types of provisions. Depending on the type of provision, the interaction with CTAs varies. A provision can have one of the following formulations: (i) ”in place of”; (ii) ”applies to”; (iii) ”in the absence of”; and (iv) ”in place of or in the absence of.”

A provision that applies ”in place of” an existing provision is intended ”to replace an existing provision” if one exists, and is not intended to apply if no existing provision exists. Parties shall include in their MLI positions a section on notifications wherein they will list all CTAs that contain a provision within the scope of the relevant MLI provision, indicating the article and paragraph number of each of such provision. A provision of the MLI that applies ”in place of” shall replace a provision of a CTA only where all Contracting Jurisdictions have made a notification with respect to that provision.

A provision that ”applies to” provisions of a CTA is intended ”to change the application of an existing provision without replacing it,” and therefore may only apply if there is an existing provision. Parties shall include in their MLI positions a section on notifications wherein they will list all CTAs that contain a provision within the scope of the relevant MLI provision, indicating the article and paragraph number of each of such provision. A provision of the MLI that ”applies to” provisions shall change the application of a provision of a CTA only where all Contracting Jurisdictions have made a notification with respect to that provision.

A provision that applies ”in the absence of” provisions of a CTA is intended ”to add a provision” if one does not already exist. Parties shall include in their MLI positions a section on notifications wherein they will list all CTAs that do not contain a provision within the scope of the relevant MLI provision. A provision of the MLI that applies ”in the absence of” provisions shall apply only in cases where all Contracting Jurisdictions notify the absence of an existing provision of the CTA.

A provision that applies ”in place of or in the absence of” provisions of a CTA is intended ”to replace an existing provision or to add a provision.” This type of provision will apply in all cases in which all the parties to a CTA have not reserved their right for the entirety of an article to apply to its CTAs. If all Contracting Jurisdictions notify the existence of an existing provision, that provision will be replaced by the provision of the MLI to the extent described in the relevant compatibility clause. Where the Contracting Jurisdictions do not notify the existence of a provision, the provision of the MLI will still apply. If there is a relevant existing provision which has not been notified by all Contracting Jurisdictions, the provision of the MLI will prevail over that existing provision, superseding it to the extent that it is incompatible with the relevant provision of the MLI (according to the explanatory statement of the MLI, an existing provision of a CTA is considered “incompatible” with a provision of the MLI if there is a conflict between the two provisions). Lastly, if there is no existing provision, the provision of the MLI will, in effect, be added to the CTA.

Slovenia’s Covered Tax Agreements

Slovenia has submitted a list of 58 tax treaties that it wishes to designate as CTAs, i.e., to be amended through the MLI.

Accordingly, Slovenia has chosen to include the vast majority of the jurisdictions that form part of the Slovenian tax treaty network (tax treaties with Isle of Man and Sweden were excluded).

MLI provisions

Hybrid mismatches

Part II of the MLI (Articles 3 to 5) introduces provisions which aim to neutralize certain of the effects of hybrid mismatch arrangements based on the recommendations made in the BEPS Actions 2 and 6 final reports released in October 2015. The provisions cover hybrid mismatches related to transparent entities, dual resident entities and elimination of double taxation. These provisions are all not minimum standard provisions and therefore Contracting Jurisdictions have the right to opt to not apply these provisions to their CTAs.

Article 3 – Transparent entities

This provision addresses the situation of hybrid mismatches as a result of entities that one or both Contracting Jurisdictions treat as wholly or partly transparent for tax purposes.

Under Article 3(1), “for the purposes of a CTA, income derived by or through an entity that is treated as wholly or partly transparent under the tax law of either Contacting Jurisdiction shall only be considered income of a resident to the extent that the income is treated, for purposes of taxation by that Contracting Jurisdiction, as the income of a resident of that Contracting Jurisdiction.”

Article 3 of the MLI applies “in place of or in the absence of” an existing provision. Article 3 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely.

Slovenia has reserved the right for the entirety of Article 3 not to apply to its CTAs.

Article 4 – Dual resident entities

Article 4 modifies the rules for determining the treaty residency of a person other than an individual that is a resident of more than one Contracting Jurisdiction (dual resident entity). Under this provision, treaty residency of a dual resident entity shall be determined by a mutual agreement procedure (MAP) between Contracting Jurisdictions. Under the MAP in Article 4, Contracting Jurisdictions are not obligated to successfully reach an agreement and in absence of a successful mutual agreement, a dual resident entity is not entitled to any relief or exemption from tax provided by the CTA except as may be agreed upon by the Contracting Jurisdictions.

Article 4 of the MLI applies “in place of or in the absence of” an existing provision. Article 4 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely.

Slovenia has not reserved the right for the entirety of Article 4 not to apply to its CTAs and notified the Depository of CTAs already containing the provision of Article 4(1).

This article will only apply when neither Contracting Jurisdiction has reserved the right for the entirety of Article 4 not to apply to its CTAs. Where all Contracting Jurisdictions have made a notification with respect to a provision in the existing CTA, that provision shall be replaced by the provisions of Article 4(1). In case of notification mismatch, the provision of the MLI should still apply and prevail over that existing provision, superseding it only to the extent that this provision is incompatible with Article 4(1). Lastly, if there is no provision in the existing CTA, the provision of the MLI will be added to the CTA.

Article 5 – Application of methods for elimination of double taxation

Article 5 includes three options for Contracting Jurisdictions for the methods of eliminating double taxation. Option A provides that provisions of a CTA that would otherwise exempt income derived or capital owned by a resident of a Contracting Jurisdiction would not apply where the other Contracting Jurisdiction applies the provisions of the CTA to exempt such income or capital from tax or to limit the rate at which such income or capital may be taxed (switch over clause). Instead, a deduction from tax is allowed subject to certain limitations. Under option B, Contracting Jurisdictions would not apply the exemption method with respect to dividends if those dividends are deductible in the other Contracting Jurisdiction. Option C includes that the credit method should be restricted to the net taxable income. Contracting Jurisdictions may choose different options resulting in an asymmetrical application of this provision. Contracting Jurisdictions may also opt not to apply Article 5 to one or more of its CTAs.

Article 5 of the MLI is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this option entirely.

Slovenia has chosen not to apply any of the options available in Article 5 (i.e., opted out of this option entirely). However, as no reservation has been made, the options chosen by the other Contracting Jurisdictions (if any) will apply asymmetrically (i.e., the other Contracting Jurisdiction would be permitted to apply its chosen option with respect to its own residents).

Treaty abuse

Part III of the MLI (Articles 6 to 13) contains six provisions related to the prevention of treaty abuse, which correspond to changes proposed in the Action 6 final report (Preventing the Granting of Treaty Benefits in Inappropriate Circumstances). In particular, the final report contains provisions relating to the so-called “minimum standard” aimed at ensuring a minimum level of protection against treaty shopping (Article 6 and Article 7 of the MLI).

Article 6 – Purpose of a CTA

Article 6 contains the proposal described in the Action 6 final report to change the preamble language of a CTA to ensure compliance with one of the requirements of the minimum standard consisting of expressing the common intention to eliminate double taxation without creating opportunities for non-taxation or reduced taxation through tax evasion or avoidance, including through treaty shopping arrangements. Article 6 also includes optional wording that may be added to the preamble of a CTA referring to the desire to develop an economic relationship or to enhance cooperation in tax matters.

Article 6 of the MLI applies “in place of or in the absence of” an existing provision. Article 6 is a provision required to meet a minimum standard and therefore jurisdictions cannot opt out of this article, unless they reserve the right for this article not to apply to its CTAs that already contain preamble language within the scope of the reservation.

Slovenia has not reserved the right for this article not to apply to its CTAs that already contain preamble language within the scope of the reservation and notified the Depository of CTAs already containing the preamble language of Article 6(1). Where all Contracting Jurisdictions have made such a notification, such preamble language shall be replaced by the provisions of Article 6(1). In other cases, the text described in Article 6(1) shall be included in addition to the existing preamble language.

Additionally, Slovenia has chosen to apply the optional wording of Article 6(3) and notified the Depository of CTAs that do not contain such preamble language. The text described in Article 6(3) shall be included in a CTA only where all Contracting Jurisdictions have chosen to apply that paragraph and have made such a notification.

Article 7 – Prevention of treaty abuse

This article contains the provisions to be included in a CTA to prevent treaty abuse. As concluded in the Action 6 final report, the prevention of treaty abuse should be addressed in one of the following ways: (i) a combined approach consisting of a limitation on benefits (LOB) provision and a principal purpose test (PPT); (ii) a PPT alone; or (iii) an LOB provision, supplemented by specific rules targeting conduit financing arrangements. With respect to the LOB provision, the Action 6 final report provided for the option of including a detailed or a simplified version.

Given that a PPT is the only way that a Contracting Jurisdiction can satisfy the minimum standard on its own, it is presented as the default option in Article 7. Parties are allowed to supplement the PPT by electing to also apply a simplified LOB provision.

Specifically, Article 7 articulates the PPT which denies treaty benefits when, having regard to all relevant facts and circumstances, obtaining that benefit is one of the principal purposes for entering into a specific transaction or arrangement that resulted directly or indirectly in that benefit, unless if granting that benefit is not contrary to the object and purpose of the relevant provisions of the CTA.

Slovenia has opted to apply the PPT alone and notified the Depository of CTAs already containing the provision of Article 7(1). Where all Contracting Jurisdictions have made a notification with respect to a provision in the existing CTA, that provision shall be replaced by the provisions of Article 7(1). In the case of notification mismatch, the provision of the MLI should still apply and prevail over that existing provision, superseding it only to the extent that this provision is incompatible with Article 7(1). Lastly, if there is no provision in the existing CTA, the provision of the MLI will be added to the CTA.

A simplified LOB provision would apply if all Contracting Jurisdictions agree for its inclusion or when one jurisdiction chooses to apply the simplified LOB and the other jurisdiction agrees to its asymmetrical or symmetrical application. Slovenia did not elect to apply the simplified LOB provision and also did not choose to allow the asymmetrical nor the symmetrical application.

Article 8 – Dividend transfer transactions

Article 8 of the MLI specifies anti-abuse rules for benefits provided to dividend transfer transactions consisting of exempting or limiting the tax rate on dividends paid by a company resident of a Contracting Jurisdiction to a beneficial owner or recipient that is resident of the other Contracting Jurisdiction, provided certain ownership requirements which need to be met throughout a 365 day period that includes the day of payment of the dividend are met. The 365 day holding period will apply in place or in the absence of a minimum holding period contained in the provisions described above.

Article 8 of the MLI applies “in place of or in the absence of” an existing provision. Article 8 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely.

Slovenia has not reserved the right for the entirety of Article 8 not to apply to its CTAs and notified the Depository of CTAs already containing the provision of Article 8(1).

This article will only apply when neither Contracting Jurisdiction has reserved the right for the entirety of Article 8 not to apply to its CTAs. Article 8(1) shall apply only where all Contracting Jurisdictions have made such a notification with respect to that provision. Where all Contracting Jurisdictions have made such a notification, that provision shall be replaced by the provisions of Article 8(1).

Article 9 – Capital gains from alienation of shares or interests of entities deriving their value principally from immovable property

Article 9 incorporates an anti-abuse rule with respect to capital gains realized from the sale of shares of entities deriving their value principally from immovable property. In this respect, Article 9(1) provides two conditions to be incorporated into a CTA. Such conditions would require meeting a relevant value threshold at any time during the 365 days preceding the sale, and would require that the rule is expanded to apply to shares or comparable interests such as interests in a partnership or trust. The article provides that the 365 day period will replace or add such minimum period in CTAs, unless a Party wishes to preserve the minimum period specified in its CTAs.

In addition, Article 9(4) allows Parties to apply Article 13(4) of the OECD Model Tax Convention as included in the Action 6 final report that provides a 365 day holding period prior to the alienation of shares, and requires that the shares or comparable interests derive more than 50% of their value directly or indirectly from immovable property.

Article 9 of the MLI contains two substantial provisions (Article 9(1) and Article 9(4) which is an optional addition) and both apply “in place of or in the absence of” an existing provision. Article 9 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely.

Slovenia has not reserved the right for the entirety of Article 9 not to apply to its CTAs, but has reserved the right for Article 9(1)(b) not to apply to its CTAs that already contain a provision described in Article 9(1) that applies to the alienation of interests other than shares.

Slovenia also chose to apply optional Article 9(4).This optional article shall apply only where all Contracting Jurisdictions notified to apply optional Article 9(4). In such case, Article 9(1) shall not apply with respect to that CTA. Where all Contracting Jurisdictions have made a notification, that provision shall be replaced by the provision of Article 9(4). In other cases, Article 9(4) shall supersede the provisions of the CTA only to the extent that those provisions are incompatible with Article 9(4).

In contrast, if one Contracting Jurisdiction chooses to apply Article 9(4) and the other Contracting Jurisdiction has not chosen to apply it, then Article 9(4) would not apply to that CTA, and Article 9(1) would apply.

Article 10 – Anti-abuse rule for permanent establishments situated in third jurisdictions

Article 10 contains the anti-abuse rule for permanent establishments (PEs) situated in third jurisdictions, the so-called “triangular provision.” The article provides that treaty benefits will be denied if an item of income derived by a treaty resident and attributable to a PE in a third jurisdiction, is exempt from tax in the residence state and the tax in the PE jurisdiction is less than 60% of the tax that would be imposed in the residence state if the PE were located there. The article makes an exception for cases where the income is derived in connection to or incidental to an active trade or business carried out through the PE, and allows discretionary relief to be requested when treaty benefits are denied under this article.

Article 10 of the MLI applies “in place of or in the absence of” an existing provision. Article 10 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely.

Slovenia has not reserved the right for the entirety of Article 10 not to apply to its CTAs and did not notify the Depository of CTAs already containing the provision of Article 10(1-3).

This article will only apply when neither Contracting Jurisdiction has reserved the right for the entirety of Article 10 not to apply to its CTAs. In the case of notification mismatch, the provision of the MLI should still apply and prevail over that existing provision, superseding it only to the extent that this provision is incompatible with Article 10(1-3). Lastly, if there is no provision in the existing CTA, the provision of the MLI will be added to the CTA.

Article 11 – Application of tax agreements to restrict a party’s right to tax its own residents

Article 11 contains a so-called “saving clause” rule that preserves a Party’s right to tax its own residents.

Article 11 of the MLI applies “in place of or in the absence of” an existing provision. Article 11 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely.

Slovenia has reserved the right for the entirety of Article 11 not to apply to its CTAs.

Avoidance of PE status

Part IV of the MLI (Articles 12 to 15) describes the mechanism by which the PE definition in existing tax treaties may choose to be amended pursuant to the BEPS Action 7 final report to prevent the artificial avoidance of PE status through: (i) commissionaire arrangements and similar strategies (Article 12); (ii) the specific activity exemptions (Article 13); and (iii) the splitting-up of contracts (Article 14). Article 15 of the MLI provides the definition of the term “closely related to an enterprise,” which is used in Articles 12 through 14.

Article 12 – Artificial avoidance of PE status through commissionaire arrangements and similar strategies

This article sets out how the changes to the wording of Article 5 of the OECD Model Tax Convention to address the artificial avoidance of PE status through commissionaire arrangements and similar strategies can be incorporated in the CTAs specified by the parties. In particular:

  • In Article 12(1), the concept of Dependent Agent PE is broadened so as to include situations where a person is acting in a Contracting Jurisdiction on behalf of an enterprise and, in doing so, habitually concludes contracts, or habitually exercises the principal role leading to the conclusion of contracts that are routinely concluded without material modification by the enterprise.
  • In Article 12(2), the concept of Independent Agent is restricted to exclude persons acting exclusively or almost exclusively on behalf of one or more enterprises to which it is “closely related,” e.g., certain situations of control, such as an enterprise that possesses directly or indirectly more than 50% of the interest in the agent.

Article 12 of the MLI applies “in place of” an existing provision. This article is intended to replace an existing provision if one exists, and is not intended to apply if an existing provision does not exist. Article 12 has two notification clauses. One for the definition of dependent agent and another for the definition of independent agent. Further, Article 12 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely.

Slovenia has not reserved the right for the entirety of Article 12 not to apply to its CTAs and notified the Depository of CTAs already containing the provision of Article 12(1) and Article 12(2).

This article will only apply when neither Contracting Jurisdiction has reserved the right for the entirety of Article 12 not to apply to its CTAs and where all Contracting Jurisdictions made a notification with respect to the existing provision of the CTA. Where all Contracting Jurisdictions have made such notification, that provision shall be replaced by the provisions of Article 12(1) or/and Article 12(2).

Article 13 – Artificial avoidance of PE status through the specific activity exemptions

This article addresses the artificial avoidance of PE status through the specific activity exemptions included in Article 5(4) of the OECD Model Tax Convention. Action 7 recommended that this exemption should only be available if the specific activity listed is of a preparatory or auxiliary character. The MLI provides two options for implementing the changes. Option A is based on the proposed wording in Action 7 (i.e., this exemption should only be available if the specific activity listed is of a preparatory or auxiliary character), while option B allows the Contracting Jurisdiction to preserve the existing exemption for certain specified activities.

This articles applies “in place of” an existing provision and therefore this first part of this article is intended to replace an existing provision if one exists, and is not intended to apply if an existing provision does not exist.

Slovenia has chosen to apply option A and provided the Depository with the list of CTAs already containing the provision of Article 13(2).

This article will only apply when neither Contracting Jurisdiction has reserved the right for the entirety of Article 13 not to apply to its CTAs and where all Contracting Jurisdictions made a notification with respect to the existing provision of the CTA (i.e., an option shall apply only where all Contracting Jurisdictions have chosen to apply the same option). Where all Contracting Jurisdictions have made such notification, that provision shall be replaced by the provisions of Article 13(2).

Article 13(4) contains a second substantial provision: the anti-fragmentation clause, pursuant to which exemptions included in Article 5(4) will not apply in situation where the business activities may constitute complementary functions that are part of a cohesive business operation.

Article 13(4) “applies to” provisions of a CTAs. This type of provision is intended to change the application of an existing provision without replacing it, and therefore can only apply if there is an existing provision. For this reason, the notification provision of Article 13 states that the provision of the Convention will apply only in cases where all Contracting Jurisdictions make a notification with respect to the existing provision of the CTA. The anti-fragmentation clause is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this option entirely.

Slovenia has not reserved the right for the entirety of Article 13 not to apply to its CTAs and notified the Depository of CTAs already containing the provision of Article 13(2). This article will only apply when neither Contracting Jurisdiction has reserved the right for the entirety of Article 13 not to apply to its CTAs and where all Contracting Jurisdictions made a notification with respect to the existing provision of the CTA.

Where all Contracting Jurisdictions have made such notification, that provision shall change the application of an existing provision without replacing it.

Article 14 – Splitting-up of contracts

Under the BEPS Action 7 final report recommendations on “Preventing the Artificial Avoidance of PE Status,” the splitting-up of contracts is a potential strategy for the avoidance of permanent PE status through abuse of the exception in Article 5(3) of the OECD Model Tax Convention, governing the situations where building sites, construction or installation projects may constitute a PE.

The Action 7 final report further noted, however, that the PPT provision could still address BEPS concerns related to the abusive splitting-up of contracts in these types of cases.

Article 14 of the MLI applies “in place of or in the absence of” an existing provision. Article 14 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely.

Slovenia has reserved the right for the entirety of Article 14 not to apply to its CTAs.

Article 15 – Definition of a person closely related to an enterprise

Article 15 describes the conditions under which a person will be considered to be “closely related” to an enterprise for the purposes of Articles 12, 13 and 14 of the MLI. Therefore, only jurisdictions that have made the reservations under Article 12(4), Article 13(6)(a), Article 13(6)(c) and Article 14(3)(a), may reserve their right for the entirety of Article 15 to apply.

Slovenia has not made any reservation under the above mentioned articles. The definition of Article 15(1) should apply the CTAs.

Dispute resolution

Article 16 – Mutual Agreement Procedure

Part V of the MLI (Articles 16 and 17) introduces provisions which aim to introduce the minimum standards for improving dispute resolution (the Action 14 minimum standards) and a number of complementing best practices.

Article 16 of the MLI 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.

Slovenia has reserved the right for the first sentence of Article 16(1) not to apply to its CTAs on the basis that it intends to meet the minimum standard for improving dispute resolution under the OECD/G20 BEPS Package. Further, Slovenia has made a number of notifications with respect to this article.

The second sentence of Article 16(1) would apply in place of the provisions of CTAs that were included in the respective notification, provided that the other Contracting Jurisdiction notifies the same provision. Lastly, the first and second sentences in Articles 16(2) and 16(3) would apply in the absence of a similar provision in CTAs. Slovenia has notified the CTAs that do not have a similar sentence and thus the MLI would add the respective sentences to Slovenian CTAs, provided that the other Contracting Jurisdiction has also notified a CTA as not containing a provision within the scope of the relevant paragraph of Article 16.

Article 17 – Corresponding adjustments

This provision is meant to apply in the absence of provisions in CTAs that require a corresponding adjustment where the other treaty party makes a transfer pricing adjustment.

Article 17 of the MLI applies “in place of or in the absence of” an existing provision. Article 17 is not a provision required to meet a minimum standard and therefore jurisdictions can opt out of this article entirely. However, BEPS Action 14 minimum standard requires that jurisdictions provide access to the MAP in transfer pricing cases and implement the resulting mutual agreements regardless of whether the tax treaty contains a provision dealing with corresponding adjustments. In light of this, a Party may reserve the right not to apply Article 17 of the MLI on the basis that in the absence of a corresponding adjustments provision, either (i) the Party making the reservation will make the corresponding adjustment as described in Article 17 of the MLI or (ii) its competent authority will endeavor to resolve a transfer pricing case under the MAP provision of its tax treaty.

Where one Contracting Jurisdiction to a CTA makes such a reservation and the other Contracting Jurisdiction does not, Article 17 of the MLI will not apply to the CTA, and there is no expectation created under the MLI that the Contracting Jurisdiction that has not made the reservation will make a corresponding adjustment.

Slovenia has not reserved the right for the entirety of Article 17 not to apply to its CTAs, but has reserved the right for the entirety of Article 17 not to apply to its CTAs that already contain the provision of Article 17(1) and notified the Depository of CTAs already containing such provision.

Where there is no provision in the existing CTA, the provision of the MLI will be added to the CTA. In the case of a notification mismatch, the provision of the MLI may still apply to the extent that the CTA is incompatible with Article 17(1).

Mandatory binding arbitration

Part VI of the MLI (Articles 18 to 26) enables countries to include mandatory binding treaty arbitration (MBTA) in their CTAs in accordance with the special procedures provided by the MLI.

Unlike the other articles of the MLI, Part VI applies only between countries that expressly choose to apply Part VI with respect to their tax treaties. Currently, 25 countries, including Slovenia, have committed to adopting and implementing MBTA in their CTAs.

The MBTA provision will apply to all cases of taxation contrary to the relevant CTA, unless a country has made a reservation specifying a more limited scope. The MLI provides flexibility for countries to bilaterally agree on the mode of application of the MBTA, including the form of arbitration. However, the default rules defined in the MLI will apply if countries do not reach such an agreement before a case materializes that is eligible for arbitration. For those countries that choose to implement MBTA through the MLI, the MLI provisions would apply to all CTAs that do not have such a provision, or instead of existing provisions that provide for MBTA.

Nevertheless, countries may reserve the right not to apply the MBTA provision of the MLI to some or all of its CTAs that already have an MBTA provision.

Slovenia made the following reservations:

  • To replace the two-year period set forth in Article 19(1)(b) with a three-year period
  • For the following rules to apply with respect to its CTAs notwithstanding the other provisions of Article 19:
    • Any unresolved issue arising from a MAP case otherwise within the scope of the arbitration process provided for by the Convention shall not be submitted to arbitration, if a decision on this issue has already been rendered by a court or administrative tribunal of either Contracting Jurisdiction
    • If, at any time after a request for arbitration has been made and before the arbitration panel has delivered its decision to the competent authorities of the Contracting Jurisdictions, a decision concerning the issue is rendered by a court or administrative tribunal of one of the Contracting Jurisdictions, the arbitration process shall terminate

Slovenia has reserved the right for Article 23(1) not to apply to its CTAs (final offer approach), which means that Article 23(2) would apply instead (independent opinion approach).

Additionally, Slovenia has chosen to apply the optional provision of Article 23(5), according to which each taxpayer involved in the case should agree in writing not to disclose any of the information received during the course of the arbitration proceedings from either competent authority or from the arbitration panel. A material breach of this agreement between the time at which the request for arbitration was made and before the arbitration panel has delivered its decision will result in the termination of the MAP and the arbitration proceedings with respect to the case.

Article 23(5) shall apply with respect to a CTAs where either of the Contracting Jurisdictions has chosen to apply Article 23(5). However, if the other Contracting Jurisdiction reserves the right not to apply this article and notifies the CTA with Slovenia as being within the scope of such reservation, then Article 23(5) would not apply.

Lastly, Slovenia has formulated the following reservations with respect to the scope of cases that are be eligible for arbitration:

  • Cases concerning items of income or capital that are not taxed by a Contracting Jurisdiction because they are not included in the taxable base in that Contracting Jurisdiction or because they are subject to an exemption or zero tax rate provided only under the domestic tax law of that Contracting Jurisdiction and that is specific to such item of income or capital shall not be eligible for arbitration under the provisions of Part VI (penalized conduct).
  • Cases connected with actions for which the taxpayer, related person or a person acting for them have been found guilty by a court or have been subject to substantial penalties due to tax fraud, evasion or avoidance shall not be eligible for arbitration under the provisions of Part VI.
  • Cases involving the residence of companies and other entities shall not be eligible for arbitration under the provisions of Part VI.
  • Cases involving application of domestic anti-avoidance provisions shall not be eligible for arbitration under the provisions of Part VI.

Implications

Slovenia wishes to apply MLI provisions to 58 tax treaties, i.e., the vast majority of those which make up its tax treaty network. This certainly constitutes an unprecedented moment for Slovenian international taxation and the implementation of the treaty-based BEPS recommendations in Slovenia.

The provisional reservations and notifications made by Slovenia at the MLI signing ceremony seems quite balanced and consistent with the double tax treaty negotiation policies followed by Slovenia during the last years. The fact that Slovenia, together with another 24 jurisdictions, has also opted in for the mandatory binding tax arbitration, reinforces the role of Slovenia as a jurisdiction willing to adopt BEPS recommendations and to use its best efforts to resolve disputes involving other Contracting Jurisdictions as efficiently as possible.

The MLI will enter into force after five jurisdictions have deposited their instrument of ratification, acceptance or approval of the MLI. During the ratification process the choices made by jurisdictions may still change. With respect to a specific bilateral tax treaty, the measures will only enter into effect after both parties to the treaty have deposited their instrument of ratification, acceptance or approval of the MLI and a specified time has passed. The specified time differs for different provisions. For example, for provisions relating to withholding taxes, the entry into force date is 1 January of the following year after the last party has notified of its ratification. It is possible that the changes made as a result of being a party to the MLI would be effective in 2019, though some tax treaties may be affected as early as sometime in 2018.

Endnotes

1. For more background on the global significance of the MLI signature, see EY Global Tax Alert, 68 jurisdictions sign the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS, dated 7 June 2017.

2. 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, for a more detailed analysis of the MLI related BEPS measures.

3. Andorra, Argentina, Armenia, Australia, Austria, Belgium, Bulgaria, Burkina Faso, Canada, Chile, China, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Fiji, Finland, France, Gabon, Georgia, Germany, Greece, Guernsey, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, Isle of Man, Israel, Italy, Japan, Jersey, Korea, Kuwait, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Monaco, Netherlands, New Zealand, Norway, Pakistan, Poland, Portugal, Romania, Russia, San Marino, Senegal, Serbia, Seychelles, Singapore, Slovak Republic, Slovenia, South Africa, Sweden, Switzerland, Turkey, United Kingdom and Uruguay.

4. See EY Global Tax Alert, Signing by 68 jurisdictions of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS highlights impacts for business to consider, dated 14 June 2017.

EYG no. 04212-171Gbl

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