1. Where a person considers that the actions of one or both
of the Contracting States result or will result for him in taxation
not in accordance with the provisions of this Convention, he
may, irrespective of the remedies provided by the domestic law
of those States, present his case to the competent authority of
the Contracting State of which he is a resident or, if his case
comes under paragraph 1 of Article 24 (Non-discrimination), to
that of the Contracting State of which he is a national. The case
must be presented within four years from the notification of the
assessment giving rise to double taxation or to taxation not in
accordance with the provisions of this Convention.
2. The competent authority shall endeavor, if the objection
appears to it to be justified and if it is not itself able to arrive at
a satisfactory solution, to resolve the case by mutual agreement
with the competent authority of the other Contracting State,
with a view to the avoidance of taxation which is not in
accordance with this Convention. Any agreement reached shall
be implemented notwithstanding any time limits or other
procedural limitations in the domestic law of the Contracting
States.
3. The competent authorities of the Contracting States shall
endeavor to resolve by mutual agreement any difficulties or
doubts arising as to the interpretation or application of this
Convention. In particular the competent authorities of the
Contracting States may agree
a) to the same attribution of income, deductions, credits, or
allowances of an enterprise of a Contracting State to its
permanent establishment situated in the other Contracting
State;
b) to the same allocation of income, deductions, credits, or
allowances between associated enterprises and other
persons in accordance with the principles of Article 9
(Associated Enterprises);
c) to the settlement of conflicting application of this
Convention, including conflicts regarding
aa) the characterization of particular items of income;
bb) the characterization of persons;
cc) the application of source rules with respect to
particular items of income, and
dd) to the treatment of income that is assimilated to income
from shares by the taxation law of the State of source
and that is treated as a different class of income in the
other State;
d) to a common meaning of a term;
e) to the application of the procedural provisions of domestic
law including those regarding penalties, fines, and interest,
in a manner consistent with the purposes of this
Convention; and
f) to increase the amounts referred to in Articles 17 (Artistes
and Athletes) and 20 (Visiting Professors and Teachers;
Students and Trainees) to reflect economic or monetary
developments.
They may also consult together for the elimination of double
taxation in cases not provided for in this Convention.
4. The competent authorities of the Contracting States may
communicate with each other directly for purposes of reaching
an agreement in the sense of the preceding paragraphs. Where
the procedure relates to a particular case, the persons
concerned shall be permitted to present their views to the
competent authority of either or both of the Contracting States.
When it seems advisable in order to reach agreement to have an
oral exchange of opinions, such exchange may take place
through a Commission consisting of representatives of the
competent authorities of the Contracting States.
5. Where, pursuant to a mutual agreement procedure under
this Article, the competent authorities have endeavored but are
unable to reach a complete agreement in a case, the case shall
be resolved through arbitration conducted in the manner
prescribed by, and subject to, the requirements of paragraph 6
and any rules or procedures agreed upon by the Contracting
States, if:
a) tax returns have been filed with at least one of the Contracting
States with respect to the taxable years at issue in the case;
b) the case
aa) is a case that
A) involves the application of one or more Articles that
the Contracting States have agreed shall be the
subject of arbitration, and
B) is not a particular case that the competent
authorities agree, before the date on which
arbitration proceedings would otherwise have
begun, is not suitable for determination by
arbitration, or
bb) is a particular case that the competent authorities
agree is suitable for determination by arbitration; and
c) all concerned persons agree according to the provisions of
subparagraph d) of paragraph 6.
6. For the purposes of paragraph 5 and this paragraph, the
following rules and definitions shall apply:
a) The term “concerned person” means the presenter of a
case to a competent authority for consideration under this
Article and all other persons, if any, whose tax liability to
either Contracting State may be directly affected by a
mutual agreement arising from that consideration;
b) The “commencement date” for a case is the earliest date on
which the information necessary to undertake substantive
consideration for a mutual agreement has been received by
both competent authorities;
c) Arbitration proceedings in a case shall begin on the later of:
aa) Two years after the commencement date of that case,
unless both competent authorities have previously
agreed to a different date, and
bb) The earliest date upon which the agreement required
by subparagraph d) has been received by both
competent authorities;
d) The concerned person(s), and their authorized representatives
or agents, must agree prior to the beginning of arbitration
proceedings not to disclose to any other person any
information received during the course of the arbitration
proceeding from either Contracting State or the arbitration
board, other than the determination of such board;
e) Unless any concerned person does not accept the
determination of an arbitration board, the determination
shall constitute a resolution by mutual agreement under this
Article and shall be binding on both Contracting States with
respect to that case; and
f) For purposes of an arbitration proceeding under
paragraph 5 and this paragraph, the members of the
arbitration board and their staffs shall be considered
“persons or authorities” to whom information may be
disclosed under Article 26 (Exchange of Information and
Administrative Assistance) of the Convention.