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Memorandum of Understanding between the Competent Authorities of the Kingdom of Belgium and the United States of America

The competent authorities of the Kingdom of Belgium and of the United States of America hereby enter into the following agreement (the “Agreement”) regarding the application of the arbitration procedure under paragraph 7 and 8 of Article 24 (Mutual Agreement Procedure) of the Convention Between the Kingdom of Belgium and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income signed on 27 November 2006. The Agreement is entered into under paragraph 6(q) of the Protocol to the Convention signed the same date (“the Protocol”). The purpose of this Agreement is to provide guidance under which the U.S.-Belgian arbitration procedure will operate.

  1.  Cases Eligible for Arbitration
    • According to paragraph 7 of Article 24 of the Convention, arbitration is available in respect of any case where the competent authorities have endeavored but are unable to reach an agreement under Article 24 regarding the application of the Convention.
    • An unresolved competent authority request which originated with a bilateral advance pricing agreement (APA) request will be subject to arbitration procedures.  (For procedures regarding APAs, see paragraph 19 below.)
    • Once a case is accepted into the mutual agreement procedure, neither competent authority will cease unilaterally to consider a case, except for the circumstances described in paragraph 2.

  2.  Cases Ineligible for Arbitration
    • Arbitration is not available for cases which a competent authority has not accepted for competent authority consideration or in which a competent authority ceases to provide assistance, in accordance with the Convention, the Protocol or published guidance.
    • The U.S. competent authority generally will not accept a request for competent authority assistance or will cease providing assistance to a taxpayer, and thus not provide for arbitration in the circumstances described in section 12.02 (Denial of Assistance) of Revenue Procedure 2006-54 (or any applicable subsequent guidance).  In addition the U.S. competent authority will not provide for arbitration for a case in which the taxpayer has reached a settlement on the issue with IRS Appeals (including an Appeals settlement through the Appeals arbitration process) or with Chief Counsel pursuant to an executed closing agreement or other written agreement such as Form 870-AD. 
    • The Belgian competent authority generally will cease providing mutual agreement procedure assistance to a taxpayer, and thus not provide relief through arbitration if the case presented for mutual agreement procedure involves improper use of the Convention or a violation of the Belgian domestic law committed with fraudulent intention.
    • In the event a Concerned Person begins an administrative appeals or judicial litigation proceedings in a case for which competent authority assistance is requested, the case will be considered not suitable for arbitration as long as the appeal or litigation proceedings have not been suspended until such time as a competent authority resolution has been reached.
    • Arbitration is not available for a case that has been accepted for competent authority consideration, but for which the competent authorities agree that the particular case is not suitable for determination by arbitration pursuant to paragraph 7 of Article 24 of the Convention.  This agreement may, depending on the circumstances of the particular case, be either a final decision, or a temporary deferral as is contemplated in paragraph 4.a.i below. 

  3.  Commencement Date
    • Within 45 days of receipt of a MAP request for assistance each competent authority will review the request and verify whether it contains the information necessary to undertake substantive consideration for a mutual agreement.
    • If a competent authority determines that the request for assistance is not complete, that competent authority will inform the taxpayer in writing within 45 days of what information is necessary consistent with Rev. Proc. 2006-54 (or any applicable subsequent guidance) or the information required by the Belgian Federal Public Service Finance in its circular relating to Article 24 of the Convention.
    • Once complete information is provided, pursuant to paragraph 22 (p) of the Protocol, each competent authority will inform the other competent authority of the date it received the information necessary to undertake substantive consideration for a mutual agreement.  The latter of these dates will be the Commencement Date.
    • Simultaneously, the competent authorities will confirm with each other that each has received the same information.
    • When the Commencement Date is established,
      • the competent authorities will exchange correspondence with each other confirming the Commencement Date and the date the arbitration proceedings shall begin for any subsequently necessary arbitration and
      • each competent authority will inform its taxpayer(s) in writing of the Commencement Date and the date the arbitration proceedings potentially shall begin for any subsequently necessary arbitration.

  4.  Date Arbitration Proceedings Begin
    • Arbitration proceedings in a case shall begin on the later of:
      • Two years after the Commencement Date of that case, unless both competent authorities have previously agreed to a different date, and 
      • The earliest date upon which the nondisclosure agreements have been received by both competent authorities.
    • The competent authorities may agree that it is appropriate to arbitrate a case either before or after two years from the Commencement Date.
    • If the competent authorities agree to begin arbitration proceedings on a date different from that generally required, then the competent authorities will confirm that date in writing to each other and to the Concerned Person resident in their territory.

  5.  Board Member Appointment
    • Each competent authority will appoint a member to the arbitration board by sending a written communication indicating their appointment to the other competent authority within 60 days of the date on which the arbitration proceedings begin.
    • If either competent authority fails to appoint a member, or if the members appointed by the competent authorities fail to agree upon the third member, the remaining member(s) will be appointed by the highest-ranking member of the Secretariat at the Centre for Tax Policy and Administration of the Organisation for Economic Co-operation and Development (OECD) who is not a citizen of either Belgium or the United States, by written notice to both countries within 60 days of the date of such failure.
    • If the chair is unable to fulfill his or her duties, the remaining two board members will jointly inform both competent authorities and select a new chair within 14 days.
    • If a board member is unable to fulfill his or her duties the chair will notify the competent authorities.  The competent authority that selected the board member who is unable to fulfill his or her duties will select a substitute board member within 14 days.
    • If any board member is unable to fulfill his or her duties the competent authorities will consult with the remaining board members to determine whether a new timetable is necessary.
    • The competent authorities will not appoint current government employees or former career government employees within two years from their last employment in the government.
    • The competent authorities will appoint members who have significant international tax experience. They need not, however, have experience as either a judge or arbitrator. Every member of an arbitration board shall be impartial and independent of the contracting states and the Concerned Persons at the time of accepting an appointment to serve, and shall remain so during the entire arbitration proceeding.

  6. Nondisclosure Issues
    • Each Concerned Person and their authorized representatives or agents must agree in writing 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 competent authority or the arbitration board, other than the determination of the board.

  7.  List of Chairs
    • The competent authorities will identify and jointly agree on up to 10 persons who are qualified and willing to serve as a Chair for an arbitration board.
    • The competent authorities will review or revise this list every third year.
    • Persons to be identified for this list will have significant international tax experience.  They need not, however, have experience as either a judge or arbitrator.  Like every member of an arbitration board, the Chair shall be impartial and independent of the contracting states and the Concerned Persons at the time of accepting an appointment to serve, and shall remain so during the entire arbitration proceeding.

  8.  Proposed Resolution, Position Papers, Supporting Papers and Reply  
     Submissions
    • Each competent authority will be permitted to submit, within 60 days of the appointment of the Chair of the arbitration board, a Proposed Resolution paper, limited to five pages, describing the proposed disposition of the specific monetary amounts of income, expense or taxation at issue in the case, and a supporting Position Paper, limited to 30 pages, plus annexes, for consideration by the arbitration board.
    • The Proposed Resolution should be drafted in a form that provides a resolution for each specific amount of income, expense or tax at issue in the case.  The Proposed Resolution may also address any related issues identified by a taxpayer’s request for competent authority assistance, that are required to be resolved to determine the specific amount of income, expense or tax, for example, the threshold existence of a permanent establishment (see paragraph 12 below). Thus, as may be appropriate in a particular case, the competent authorities may agree that a Proposed Resolution (or portion thereof) need not be “an amount of income, expense or tax”.
    • In the event that only one competent authority submits a Proposed Resolution within the allotted time, then that Proposed Resolution will be deemed to be the determination of the board in that case and the Proceeding will be terminated.
    • Each competent authority may, if it so desires, submit a Reply Submission, limited to 10 pages, to the board within 120 days of the appointment of the Chair, to address any points raised by the Proposed Resolution or Position Paper submitted by the other competent authority.
    • In a particular case, the competent authorities may agree on different page limitations for the Proposed Resolutions, Position Papers or Reply Submissions.
    • Any annex to a Position Paper must be a document previously made available for the competent authorities to use in negotiation.
    • The competent authorities will send to the Chair four copies of each document submitted to the board, for distribution to the board members and other competent authority.

  9.  Requests for Additional Information
    • Additional information may be submitted to the board only at its request, and copies of the board’s request and the competent authority’s response shall be provided to the other competent authority on the date on which the request or the response is submitted.
    • The board may request additional information that consists only of existing documents and may not request new or additional analyses.
    • The board may establish a deadline for responding to the request.

  10. Multiple Issues
    • A case may consist of multiple issues.  The existence of multiple issues in a case will ordinarily be identified by the assertion of multiple discrete proposed adjustments arising from an audit (or if there is no adjustment, multiple discrete denied credits or claims).  The Proposed Resolution and Position Paper should address each issue separately.  However, in an appropriate case, the competent authorities may agree to a different presentation of issues to the board, for example, where interrelated adjustments have been proposed.
    • The board will make a determination on each issue separately.   Thus, the final decision of the board may be comprised of portions of each of the Proposed Resolutions submitted by the competent authorities.

  11. Permanent Establishment Cases
    • Position Papers and Supporting Papers may take alternative positions.  Thus, for example, a competent authority may take the position that no permanent establishment exists and, nevertheless, propose an amount of income to be attributed to a permanent establishment, in the event that the board determines that a permanent establishment exists.

  12. Competent Authority Initiating Proceedings
    • For requests for competent authority assistance concerning an adjustment raised in either Belgium or the United States, the competent authority of the country initiating the adjustment is considered the competent authority initiating the Mutual Agreement Procedure.
    • For requests originally submitted as an APA, the competent authority of the country in which the parent company is located is considered the competent authority initiating the Mutual Agreement Procedure.  If the parent company is a resident of a 3rd state, the competent authorities will determine the competent authority serving as the one initiating the MAP.
    • Meeting facilities, related resources, financial management, other logistical support, and general administrative coordination of the Proceeding will be provided, at its own cost, by the competent authority that initiated the Mutual Agreement Proceeding.

  13.  Board Member Nondisclosure
    • Upon confirmation of appointment of the arbitration board, each board member must agree in a statement to abide by and be subject to the confidentiality and nondisclosure provisions of Article 25 of the Convention and the applicable domestic laws of the Contracting States, as well as to this Agreement and the Arbitration Board Operation Guidelines. 

  14.  Communication between the Board and the Competent Authorities
    • Before the chair is appointed, the competent authorities will send any correspondence concurrently to both board members.  The chair and the competent authorities shall use express mail for all correspondence other than that sent via facsimile or email.
    • After the chair is appointed, the competent authorities will send any correspondence to the chair.  Similarly, the chair will send any correspondence concurrently to the competent authorities.
    • No competent authority will have any ex parte communications, except for administrative or logistical matters, with a board member.
    • All communication, except for logistical matters, between the competent authorities and the board must be in writing.  Written communication by fax or email is allowed, however, no information that may identify the taxpayer(s) may be included in an email.

  15.  Fees and Expenses
    • The fees and expenses will be borne equally by the Contracting States.
    • Neither Contracting State will charge a taxpayer for costs associated with arbitration.
    • The fees of members of the arbitration board will be set at the fixed amount of $2000 (two thousand United States dollars) or the equivalent in euro per day, subject to modification by the competent authorities.
    • For one case, each board member will be compensated for no more than three days of preparation, for two meeting days (including through video-conference) and for the travel days necessary to attend the meetings. If the board members feel, however, they require additional time to properly consider the case; the board members may be compensated for additional time, with prior approval of the competent authorities. 
    • In general, the expenses of members of the arbitration board will be set in accordance with the International Centre for Settlement of Investment Disputes (ICSID) Schedule of Fees for arbitrators (as in effect on the date on which the arbitration proceedings begin, subject to modification by the competent authorities.
    • Any fees for language translation will be borne equally by the competent authorities.

  16.  Board Determination
    • The determination of the board will constitute a resolution by mutual agreement under Article 24 (Mutual Agreement Procedure) of the Convention and will be binding on both competent authorities with respect to that case.
    • Within 45 days of receiving the determination each Concerned Person must accept the determination in writing sent to the Contracting State of which the Concerned Person is a resident.  If one Concerned Person fails to accept the determination within 45 days, the determination is considered rejected and the case will be closed.  (See also paragraph 2(c)(iv).)
    • If a Concerned Person has not renounced domestic legal remedies with respect to all of the issues covered by the arbitration decision by the time that person accepts the board's determination, the determination is considered rejected and the case will be closed.
    • The treatment of any interest or penalties will be determined by applicable domestic law of Belgium or the United States.

  17.  Terminating Proceedings
    • If a taxpayer terminates by withdrawing its request for assistance, then the competent authorities will exchange letters to close the case.
    • If a taxpayer terminates an arbitration proceeding by withdrawing its request for assistance, the taxpayer will not ordinarily be allowed access to the competent authority procedures for the same matter and same years.

  18.  Advance Pricing Agreements (APA)
    • A case initially submitted to the competent authorities as a request for an APA is eligible for arbitration, but only to the extent tax returns have been filed with respect to the taxable years at issue, including any years for which the taxpayer has requested a rollback. Tax years prior to those covered by the APA will be covered by the arbitration determination only if both competent authorities have agreed to cover those years in their position papers and only to the extent the tax years are still open to assessment according to the time limits in the domestic law of both Contracting States.
    • For APA years for which tax returns have not been filed, the competent authorities agree to apply the transfer pricing method used in the position paper of the competent authority whose result the board determined was the better result, provided the transfer pricing method is sufficiently described in the supporting position paper.
    • For purposes of establishing a Commencement Date for a case initially submitted as a request for an APA, paragraph 6(p) of the Protocol provides that the information necessary to undertake substantive consideration for a mutual agreement in the United States is the information required to be submitted to the Internal Revenue Service under Revenue Procedure 2006-9, section 4 (or any applicable successor provisions).  In Belgium, the information is that which would be required under instructions or commentaries published by the Federal Public Service Finance. 
    • Once complete information is provided, the Commencement Date of the case, for purposes of any subsequently necessary arbitration, will be the earlier of i) the date on which the competent authorities have exchanged position papers setting forth their initial negotiating positions or ii) two years from the earliest date on which the information necessary to undertake substantive consideration for a mutual agreement has been received by both competent authorities.  However, the arbitration proceedings will in no event commence before one year after the submission of the tax return for the later of the corresponding tax years covered by the APA request (including any amendments) has elapsed
    • For requests originally submitted as an APA, the competent authority of the country in which the parent company is located is considered the competent authority initiating the Mutual Agreement Procedure.  If the parent company is a resident of a 3rd state, the competent authorities will determine the competent authority serving as the one initiating the MAP.
    • The provisions of paragraphs 1 through 18 apply as appropriate.


Agreed:

For the Kingdom of Belgium                           For the United States of America

 

Sandra Knaepen                                             Barry B. Shott
Belgian Competent Authority                          United States Competent Authority
1st Attache of Finance                                     Deputy Commissioner (International)
International Relations Department              Large and Mid-sized  Business Division  
Administration of Corporate
and Income Tax
  
Date:  May 5, 2009                                           Date:  May 5, 2009

Page Last Reviewed or Updated: 31-Oct-2014