Worldwide: Multilateral Instrument: Analysis On The Application Of The Entry-Into-Force And The Entry-Into-Effect Articles To Covered Tax Agreements (Part 2)

Last Updated: 4 September 2019
Article by Alfred Chan

[4] Article 35(4): Provision to which Article 16 - Mutual Agreement Procedure applies

a) Entry into effect with respect to Mutual Agreement Procedure

Article 35(4) provides that Article 16 (MAP) shall have effect with respect to a CTA for a case presented to the competent authority of a contracting jurisdiction on or after the latest of the dates on which the MLI comes into force for each of the contracting jurisdictions to the CTAs, except for cases that were not eligible to be presented as of that date under the CTA prior to its modification by the MLI. Article 35(4) shall apply without regard to the taxable period to which the case relates.

b) Early access to MAP by taxpayers

As the Explanatory Statement to the MLI clarifies, paragraph 4 of Article 35 is intended to ensure that the provision of the MLI apply as soon as possible after the entry into force date, regardless of the taxable period to which a specific case shall apply. The exception as mentioned above is intended to ensure that the MLI would not "revive" cases that had been ineligible for MAP prior to the entry into force of the MLI.

[5] Article 35(5): New CTA(s) resulting from an extension under Article 29(5) of the list of covered tax agreements under Article 2(1)(a)

a) Extension of the list of CTAs [after the MLI came into force]

Article 35(5) provides that the provisions of this Convention shall have effect in each Contracting Jurisdiction:

  1. with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after the first day of the next calendar year that begins on or after 30 days after the date of the communication by the Depositary of the notification of the extension of the list of agreements; and
  2. with respect to all other taxes levied by that Contracting Jurisdiction, for taxes levied with respect to taxable periods beginning on or after the expiration of a period of nine calendar months (or a shorter period, if all Contracting Jurisdictions notify the Depositary that they intend to apply such shorter period) from the date of the communication by the Depositary of the notification of the extension of the list of agreements.

b) Provision providing for the asymmetric application of Article 35(1) and Article 35(5)

Article 35(2) provides that "[s]olely for the purpose of its own application of subparagraph a) of paragraph 1 and subparagraph a) of paragraph 5, a Party may choose to substitute "taxable period" for "calendar year", and shall notify the Depositary accordingly.

Article 35(3) provides that "[s]olely for the purpose of its own application of subparagraph b) of paragraph 1 and subparagraph b) of paragraph 5, a Party may choose to replace the reference to "taxable periods beginning on or after the expiration of a period" with a reference to "taxable periods beginning on or after 1 January of the next year beginning on or after the expiration of a period", and shall notify the Depositary accordingly."

[6] Article 35(6): Reservation relating to the application of Article 35(4) to the Mutual Agreement Article

Article 35(6) provides that a contracting jurisdiction may reserve the right for Article 35(4) not to apply to its CTAs.

Where a contracting jurisdiction makes a reservation under Article 35(4), it chooses not to use the fast track to make a MAP request to the competent authority of either contracting jurisdiction. If so, the normal procedure under article 35(1) shall apply.

[7] Article 35(7): Reservations relating to the application of Article 35(7)(a)(i) and (ii) to articles 35(1), (4), and (5)

Article 35(7)(a) provides that a contracting jurisdiction may reserve the right to replace

  1. the references in paragraphs 1 and 4 to "the latest of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement"; and
  2. the references in paragraph 5 to "the date of the communication by the Depositary of the notification of the extension of the list of agreements";

with reference to "30 days after the date of receipt by the Depositary of the latest notification by each Contracting Jurisdiction making the reservation described in paragraph 7 of Article 35 (Entry into Effect) that it has completed its internal procedures for the entry into effect of the provisions of this Convention with respect to that specific Covered Tax Agreement".

Table E1: Reservations that a contracting jurisdiction may choose to make with respect to the covered tax agreements, pursuant to Articles 35(7)(a)(i) to 35(7)(a)(vi)

Provisions Provisions Replaceable under Article 35(7)(a)
Article 35 Article 35(7)

(a) A Party may reserve the right to replace:
1. The provisions of this Convention shall have effect in each Contracting Jurisdiction with respect to a Covered Tax Agreement:

a) with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after the first day of the next calendar year that begins on or after the latest of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement; and

b) with respect to all other taxes levied by that Contracting Jurisdiction, for taxes levied with respect to taxable periods beginning on or after the expiration of a period of six calendar months (or a shorter period, if all Contracting Jurisdictions notify the Depositary that they intend to apply such shorter period) from the latest of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement.

4. Notwithstanding the preceding provisions of this Article, Article 16 (Mutual Agreement Procedure) shall have effect with respect to a Covered Tax Agreement for a case presented to the competent authority of a Contracting Jurisdiction on or after the latest of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement, except for cases that were not eligible to be presented as of that date under the Covered Tax Agreement prior to its modification by the Convention, without regard to the taxable period to which the case relates.

5. For a new Covered Tax Agreement resulting from an extension pursuant to paragraph 5 of Article 29 (Notifications) of the list of agreements notified under clause ii) of subparagraph a) of paragraph 1 of Article 2 (Interpretation of Terms), the provisions of this Convention shall have effect in each Contracting Jurisdiction:

a) with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after the first day of the next calendar year that begins on or after 30 days after the date of the communication by the Depositary of the notification of the extension of the list of agreements; and

b) with respect to all other taxes levied by that Contracting Jurisdiction, for taxes levied with respect to taxable periods beginning on or after the expiration of a period of nine calendar months (or a shorter period, if all Contracting Jurisdictions notify the Depositary that they intend to apply such shorter period) from the date of the communication by the Depositary of the notification of the extension of the list of agreements
i) the references in Articles 35(1) and (4) to "the latest of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement"; and

ii) the references in Article 35(5) to "the date of the communication by the Depositary of the notification of the extension of the list of agreements";

with references to "30 days after the date of receipt by the Depositary of the latest notification by each Contracting Jurisdiction making the reservation described in paragraph 7 of Article 35 (Entry into Effect) that it has completed its internal procedures for the entry into effect of the provisions of this Convention with respect to that specific Covered Tax Agreement";
Article 28 (Reservations), paragraphs (9)(a) and (b)
9. Any Party which has made a reservation in accordance with paragraph 1 or 2 may at any time withdraw it or replace it with a more limited reservation by means of a notification addressed to the Depositary. Such Party shall make any additional notifications pursuant to paragraph 6 of Article 29 (Notifications) which may be required as a result of the withdrawal or replacement of the reservation. Subject to paragraph 7 of Article 35 (Entry into Effect), the withdrawal or replacement shall take effect:

a) with respect to a Covered Tax Agreement solely with States or jurisdictions that are Parties to the Convention when the notification of withdrawal or replacement of the reservation is received by the Depositary:

i) for reservations in respect of provisions relating to taxes withheld at source, where the event giving rise to such taxes occurs on or after 1 January of the year next following the expiration of a period of six calendar months beginning on the date of the communication by the Depositary of the notification of withdrawal or replacement of the reservation; and

ii) for reservations in respect of all other provisions, for taxes levied with respect to taxable periods beginning on or after 1 January of the year next following the expiration of a period of six calendar months beginning on the date of the communication by the Depositary of the notification of withdrawal or replacement of the reservation; and

b) with respect to a Covered Tax Agreement for which one or more Contracting Jurisdictions becomes a Party to this Convention after the date of receipt by the Depositary of the notification of withdrawal or replacement: on the latest of the dates on which the Convention enters into force for those Contracting Jurisdictions.
iii) the references in Article 28(9)(a) to "on the date of the communication by the Depositary of the notification of withdrawal or replacement of the reservation"; and

iv) the reference in Article 28(9)(b) to "on the latest of the dates on which the Convention enters into force for those Contracting Jurisdictions";

with references to "30 days after the date of receipt by the Depositary of the latest notification by each Contracting Jurisdiction making the reservation described in paragraph 7 of Article 35 (Entry into Effect) that it has completed its internal procedures for the entry into effect of the withdrawal or replacement of the reservation with respect to that specific Covered Tax Agreement";
Article 29 (Notifications), paragraphs (6)(a) and (b)
6. A Party may make additional notifications pursuant to subparagraphs b) through s) of paragraph 1 by means of a notification addressed to the Depositary. These notifications shall take effect:

a) with respect to Covered Tax Agreements solely with States or jurisdictions that are Parties to the Convention when the additional notification is received by the Depositary:

i) for notifications in respect of provisions relating to taxes withheld at source, where the event giving rise to such taxes occurs on or after 1 January of the year next following the expiration of a period of six calendar months beginning on the date of the communication by the Depositary of the additional notification; and

ii) for notifications in respect of all other provisions, for taxes levied with respect to taxable periods beginning on or after 1 January of the year next following the expiration of a period of six calendar months beginning on the date of the communication by the Depositary of the additional notification; and

b) with respect to a Covered Tax Agreement for which one or more Contracting Jurisdictions becomes a Party to this Convention after the date of receipt by the Depositary of the additional notification: on the latest of the dates on which the Convention enters into force for those Contracting Jurisdictions.
v) the references in subparagraph a) of paragraph 6 of Article 29 (Notifications) to "on the date of the communication by the Depositary of the additional notification"; and vi) the reference in subparagraph b) of paragraph 6 of Article 29 (Notifications) to "on the latest of the dates on which the Convention enters into force for those Contracting Jurisdictions";

with references to "30 days after the date of receipt by the Depositary of the latest notification by each Contracting Jurisdiction making the reservation described in paragraph 7 of Article 35 (Entry into Effect) that it has completed its internal procedures for the entry into effect of the additional notification with respect to that specific Covered Tax Agreement";

Sub-paragraphs vii), viii), ix), and x) of Article 35(7)(a) shall apply to the provisions of Article 36 (Arbitration) in the same way as above.

Table E2: Reservations that a contracting jurisdiction may choose to make with respect to the covered tax agreements, pursuant to Articles 35(7)(a)(vii) to 35(7)(a)(x)

Provisions Provisions Replaceable under Article 35(7)(a)
Article 36 Article 35(7)

(a) A Party may reserve the right to replace:
1. Notwithstanding paragraph 9 of Article 28 (Reservations), paragraph 6 of Article 29 (Notifications), and paragraphs 1 through 6 of Article 35 (Entry into Effect), with respect to two Contracting Jurisdictions to a Covered Tax Agreement, the provisions of Part VI (Arbitration) shall have effect:

a) with respect to cases presented to the competent authority of a Contracting Jurisdiction (as described in subparagraph a) of paragraph 1 of Article 19 (Mandatory Binding Arbitration)), on or after the later of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement; and

b) with respect to cases presented to the competent authority of a Contracting Jurisdiction prior to the later of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement, on the date when both Contracting Jurisdictions have notified the Depositary that they have reached mutual agreement pursuant to paragraph 10 of Article 19 (Mandatory Binding Arbitration), along with information regarding the date or dates on which such cases shall be considered to have been presented to the competent authority of a Contracting Jurisdiction (as described in subparagraph a) of paragraph 1 of Article 19 (Mandatory Binding Arbitration)) according to the terms of that mutual agreement.

2. A Party may reserve the right for Part VI (Arbitration) to apply to a case presented to the competent authority of a Contracting Jurisdiction prior to the later of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement only to the extent that the competent authorities of both Contracting Jurisdictions agree that it will apply to that specific case.
vii) the references in paragraphs 1 and 2 of Article 36 (Entry into Effect of Part VI) to "the later of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement";

with references to "30 days after the date of receipt by the Depositary of the latest notification by each Contracting Jurisdiction making the reservation described in paragraph 7 of Article 35 (Entry into Effect) that it has completed its internal procedures for the entry into effect of the provisions of this Convention with respect to that specific Covered Tax Agreement"; and
3. In the case of a new Covered Tax Agreement resulting from an extension pursuant to paragraph 5 of Article 29 (Notifications) of the list of agreements notified under clause ii) of subparagraph a) of paragraph 1 of Article 2 (Interpretation of Terms), the references in paragraphs 1 and 2 of this Article to "the later of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement" shall be replaced with references to "the date of the communication by the Depositary of the notification of the extension of the list of agreements".

4. A withdrawal or replacement of a reservation made under paragraph 4 of Article 26 (Compatibility) pursuant to paragraph 9 of Article 28 (Reservations), or the withdrawal of an objection to a reservation made under paragraph 2 of Article 28 (Reservations) which results in the application of Part VI 47 (Arbitration) between two Contracting Jurisdictions to a Covered Tax Agreement, shall have effect according to subparagraphs a) and b) of paragraph 1 of this Article, except that the references to "the later of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement" shall be replaced with references to "the date of the communication by the Depositary of the notification of withdrawal of the reservation", "the date of the communication by the Depositary of the notification of replacement of the reservation" or "the date of the communication by the Depositary of the notification of withdrawal of the objection to the reservation", respectively.

5. An additional notification made pursuant to subparagraph p) of paragraph 1 of Article 29 (Notifications) shall have effect according to subparagraphs a) and b) of paragraph 1, except that the references in paragraphs 1 and 2 of this Article to "the later of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement" shall be replaced with references to "the date of the communication by the Depositary of the additional notification".
viii) the reference in Article 36(3) (Entry into Effect of Part VI) to "the date of the communication by the Depositary of the notification of the extension of the list of agreements";

ix) the references in Article 36(4) (Entry into Effect of Part VI) to "the date of the communication by the Depositary of the notification of withdrawal of the reservation", "the date of the communication by the Depositary of the notification of replacement of the reservation" and "the date of the communication by the Depositary of the notification of withdrawal of the objection to the reservation"; and

x) the reference in Article 36(5) (Entry into Effect of Part VI) to "the date of the communication by the Depositary of the additional notification";

with references to "30 days after the date of receipt by the Depositary of the latest notification by each Contracting Jurisdiction making the reservation described in paragraph 7 of Article 35 (Entry into Effect) that it has completed its internal procedures for the entry into effect of the provisions of Part VI (Arbitration) with respect to that specific Covered Tax Agreement".

[8] Concluding Comments

Article 35 of the MLI contains three types of options: opt-out (reservations) provisions, opt-in provisions, and alternative provisions. Article 35(4) contains an opt-in provision in which the taxpayer is allowed to present a MAP request on a case that occurs on or after the entry-into-force date. Article 35(6) contains an out-out provision providing that a contracting jurisdiction may choose not to apply the opt-in provision under Article 35(4) that provides early access to a taxpayer who is eligible for a MAP request.

Article 35(2) and (3) respectively contains two opt-in provisions that a contracting jurisdiction is free to apply to its CTAs for the purpose of the practical administration of domestic tax rules and entry-into-effect provision of the MLI. Opt-in provisions are also contained in other articles of the MLI such as paragraph 3 of Article 6 (Purpose of Tax Treaties), and paragraph 1 of Article 7 (Prevention of Treaty Abuse). There is a distinction between articles 6(3) and 7(1). Article 6(3) is a non-default option for which a contracting jurisdiction is free to choose while article 7(1) is a default option for which a contracting jurisdiction has no freedom to choose for the purpose of meeting the minimum standards in line with BEPS action.

Article 21(1) of the Vienna Convention on the Law of Treaties provides the reciprocity principle. It provides that "a reservation established with regard to another party ..: (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State." For purpose of the application of entry-into-effect provision under article 35(1), if a contracting jurisdiction adopts an alternative provision either under Articles 35(2) or (3) and the other contracting jurisdiction does not do so, the entry-into-effect provision of that CTA shall apply asymmetrically. The provision of the two alternative provisions is an exception to the reciprocity principle under Article 21(1) of the Vienna Convention on the Law of Treaties. Both Articles 35(2) and (3) are types of an alternative provision that is a non-default opt-in provision. The design of an alternative option serves the purpose that the alternative provision is provided as another way of doing things leading to the same result for flexibility sake.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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