The Ministry of Finance in Norway published mutual agreement procedure (MAP) guidelines that apply under Norway’s network of income tax treaties.
A mutual agreement procedure (MAP) is a dispute resolution arrangement that is based on measures pursuant to an income tax treaty—one that a taxpayer may invoke in specific cases. A principal condition for invoking the MAP rules is that the taxpayer considers that the actions of one or both of the countries or states involved result (or will result) in taxation that is not in accordance with the provisions of the applicable income tax treaty. Hence, MAP is an instrument that helps determine that the countries’ tax authorities are applying the measures of the tax treaties correctly.
The MAP is an intergovernmental arrangement whereby the competent authorities in both countries will try to agree on how to avoid taxation that is not in accordance with the tax treaty. The taxpayer is not directly involved in the process, but often is the party responsible for supplying the factual background and thus contributes to the MAP process by providing factual information so that the MAP process can run effectively. Another feature of the MAP rules is that the countries are not obliged to resolve the case. They are only obliged to endeavour to find a solution.
The Norwegian MAP guidelines provides guidance regarding the use of MAP rules in specific taxpayer cases. The guidance is general in nature, but on certain points, it provides specific guidance relevant for cases related to transfer pricing.
The taxpayer may make a request for MAP and, at the same time, make use of domestic judicial remedies (such as appeals and lawsuits). To avoid a situation that the same issues are handled in parallel by the tax authorities, the MAP process and the handling of an appeal or legal case must be coordinated.
Particularly relevant for transfer pricing cases, the Norwegian MAP guidelines state that the Norwegian competent authority will not refuse a case for MAP on the grounds that the tax treaty does not contain a provision regarding corresponding adjustment (cf. Article 9 (2) of the OECD’s Model Tax Convention). It is further stated that in transfer pricing cases, it is a good practice to send identical MAP applications to both countries’ competent authorities.
The guidelines provide:
Most of Norway’s income tax treaties include a time limit for requesting a MAP (cf. Article 25 (1), final sentence, of the OECD Model Tax Convention). In most tax treaties, the time limit is three years from the date of first notification of the action resulting in taxation that is not in accordance with the treaty. In the Nordic tax treaty, the time limit is five years. If the taxpayer submits an application for a MAP after the expiry of the time limit, the application will be rejected. Thus, it is important to verify the time limit in the applicable tax treaty.
When the competent authorities have reached agreement on a solution in the MAP case, this will be presented to the taxpayer. The taxpayer can choose to accept or reject the agreed solution. If the taxpayer accepts the solution, the Norwegian competent authority will set as a condition, for implementing an agreed MAP solution, that the taxpayer must withdraw any appeal or lawsuit in the case.
The Norwegian competent authority can, at the taxpayer’s request and following a specific assessment, also agree to address or include subsequent income years in the MAP process, provided that the competent authority of the other country agrees to this process.
In transfer pricing cases, the taxpayer can also ask the Norwegian competent authority to enter into an advance pricing agreement (APA) with a competent authority in the other country. The Norwegian competent authority will only enter into APAs on a bilateral basis.
For more information, contact a tax professional with the KPMG member firm in Norway:
Per Daniel Nyberg | + 47 40 63 92 65 | firstname.lastname@example.org
Thor Leegaard | +47 40 63 91 83 | email@example.com
Pål-Martin Schreiner | +47 40 63 45 26 | firstname.lastname@example.org
Marius Aanstad | +47 40 63 95 51 | email@example.com
Fredrik Klebo-Espe | +47 47 64 07 70 | firstname.lastname@example.org
The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation. For more information, contact KPMG's Federal Tax Legislative and Regulatory Services Group at: + 1 202 533 4366, 1801 K Street NW, Washington, DC 20006.