For a MAP case to go to an arbitration panel, United States tax treaties require that the relevant taxpayers agree to arbitration and the release of their information to the arbitrators. They also require that both the taxpayers and their authorized representatives make certain agreements regarding confidentiality of the arbitration process. IRS has developed three documents for taxpayers and representatives to sign to indicate these agreements.
By signing this document, the U.S. taxpayer and members of its consolidated group along with other concerned persons (domestic and foreign) clearly establish their consent to the competent authorities using MAP arbitration to resolve their case. In signing the document, the taxpayer and other concerned persons agree they will not disclose information received in connection with the arbitration proceeding, other than the final arbitrated determination. The taxpayer also uses this document to identify its authorized representatives and transmit the nondisclosure agreements of those individuals. Foreign taxpayers that are “concerned persons” under the treaty will generally need to execute a separate copy (or copies) of this document.
Treaty arbitration provisions, e.g., Article 25(5)(c) and 25(6)(d) of the US-Germany treaty, require each representative of each of the taxpayers involved to agree to not disclose information about an arbitration, which is indicated when they execute this document. This applies to both US and to foreign representatives.
This document is a critical requirement under section 6103 of the Internal Revenue Code (I.R.C.). By signing this document, the U.S. taxpayer and members of its consolidated group clearly consent to the disclosure of taxpayer information to non-governmental employees or organizations which may or will be involved in the arbitration proceeding, most importantly the arbitrators themselves. U.S. taxpayers who are concerned persons and not members of a consolidated group must provide separate consents. Unlike documents 1 and 2, this document need only be submitted by U.S taxpayers (i.e., concerned persons for whom the IRS has returns or return information).
IRS is using the services of an external dispute resolution organization, the International Centre for Dispute Resolution (ICDR), to expedite some of the administrative tasks of MAP arbitration. The contract with IRS requires ICDR to provide confidentiality to taxpayer information under I.R.C. § 6103(n). By signing this document, the taxpayer also consents to IRS’ use of the services of ICDR, as provided for in I.R.C. § 6103(c), and disclosure by ICDR to arbitrators and potential arbitrators, as necessary, to obtain and use their services. The treaty partners involved in MAP arbitration may also use the services of ICDR or a similar organization.