Objetivos secundarios
III. MATERIAL Y MÉTODOS
III. 2. c. Metodología estadística: Estudio y test estadístico
Japan does not have an ADR process, except Advanced Pricing Agreements (APAs).
In Japan, entering into a written agreement with a tax authority regarding taxpayer’s tax liability is not permitted because tax law is recognized as the complete and ultimate provision. Consequently, the tax authority strongly recommends the taxpayer file an amended return, and if no amended return is filed, the tax authority will correct the original return. In a tax lawsuit, the court will not allow a settlement report to be made between the parties. Therefore, “virtual settlement” between the tax authority and taxpayer frequently occurs by combining cancellation or modification of assessment by the tax authority, and withdrawal of the action by the taxpayer.
That said, the Japanese tax authorities do provide for some form of Taxpayer Advance Inquiries. If a tax authority receives a written query from a taxpayer which satisfies certain conditions (eg tax treatment of a certain transaction is not made clear under the tax law), the tax authority will respond to the query in writing.
Unilateral and bilateral APAs are available, though the NTA prefers bilateral. APA guidelines are included in the Administrative Guidelines.
The NTA has recently shown a willingness to accept profit-based methods, such as the TNMM.
The NTA amended the filing deadline for APA applications on 22 October 2008.
Previous guidance required that the APA application be filed by the tax return filing deadline of the first year to be covered by the APA. The new NTA guidance sets the APA filing deadline as the day preceding the first day of the first fiscal year to be covered by the proposed APA.
However, the new guidance does allow for a transition period. If the first covered year starts between 1 November 2008 and 1 November 2009, the transition rule applies.
The transition rule indicates that the APA application is due eight months after the due date of the tax return for the last year before the covered period. In practice, this means the application is due eleven months after the first day of the covered period.
Advance Pricing Agreements
in Korea
Unilateral and bilateral APAs are available under the LCITA. In order to encourage the application of APAs, the NTS does not require an application fee, and the LCITA guarantees the confidentiality of the data submitted to the NTS with regard to an APA.In addition, the Korean tax authority is making all efforts to shorten the time being taken to process the APA. Furthermore, the Korean tax authority released its first Annual Report on APAs which includes information such as statistics on the type of APAs being concluded, the countries that are counterparties to APAs, time taken to process APA cases, etc.
South Korea
[email protected] +82 2 3770 0903Brief description of available Alternative Dispute Resolution processes
Recently the Korean tax authorities (National Tax Service, "NTS") introduced
"advanced tax ruling system" which is very similar to US IRS private letter rulings that apply to specific case and taxpayer.
Description of the processes Process 1
What is the process called? Advanced Tax Ruling System (“ATRS”)
When was it introduced? Effective from October 1, 2008
Is the process settled in law? Is the process fully documented? ATRS is documented not in tax law, but within NTS’s instruction (i.e., it is a directive).
Pre-filing or post-filing? The process may be followed for both pre-filing and post-filing issues.
Advanced tax rulings may be made on specific transactions that are either ongoing or planned in the near future.
How does the process work? A taxpayer submits a written advanced tax ruling request to NTS along with verified by supporting facts and documents and NTS provides its written opinion on the interpretation of tax laws to the taxpayer.
Is there a user fee to use the process? No
What types of tax issues does the process cover? (eg Valuation, timing, Transfer pricing, transactions, other)
There is no specific limitation.
Mexico
[email protected]+525 5528 31449 [email protected] +525 5528 31300
Brief description of available Alternative Dispute Resolution processes
Mexican Tax legislation provides for a range of Alternative Dispute Resolution processes including non-binding rulings, Administrative appeal, and the Advanced Pricing Agreements.
In addition to the above mentioned, treaties signed by Mexico provide the mutual agreement procedure as an alternative to dispute a resolution, as well as the arbitration method in case of the Mexico-Canada treaty. Furthermore, the Netherlands, treaty which has been recently renegotiated, provide that if a new tax treaty executed by Mexico contains any disposition related to the Arbitration Procedure, and if such provision is significantly similar to the one established by the OECD Model of Tax treaty, then such provision would be automatically applicable to the treaty. A Mexico-Switzerland treaty (signed, but not currently in force) provides a similar condition.
Advance Pricing Agreements
in Mexico
Unilateral and bilateral APAs are available under Article 34-A of the Federal Fiscal Code and Mexico’s tax treaties. Unilateral APAs can cover the fiscal year of the application, the three subsequent fiscal years and a one-year rollback.Description of the processes Process 1 Process 2 Process 3
What is the process called? Rulings/Administrative Appeals Advanced Pricing Agreements
(Transfer Pricing) Treaty’s Mutual Agreement Procedure/
Arbitration When was it introduced? Rulings and Administrative Appeals
exist in Mexican law at least since December 31st 1981.
December 30th 1996. Mutual agreements since April 8th 1991 (First treaty signed by Mexico), arbitration since/
Arbitration since September 12th, 2006.
Is the process settled in law? Is
the process fully documented? Yes Yes These processes are provided by treaties.
Pre-filing or post-filing? Pre-filing Pre-filing Pre-filing and/or post-filing
How does the process work? Ruling requests are filed at any time. The request should be made stating the background, facts and circumstances and should be made before the tax authorities start an audit on the topics contained in the ruling request. Rulings will cease to be valid if the circumstances change or if the law change. The tax authorities need to issue an answer within 3 months/
Administrative appeals should be filed within the 45 days following a notification or an assessment.
The appeal ruling should be issued within 3–5 months following the date of the filing.
The interested party requests an advanced pricing agreement filing for these purposes all the necessary documentation, data, and information. By this Advanced Pricing Agreement the taxpayer can agree and justify the prices that will correspond to operations with foreign related parties.
This process is regulated by the tax treaties agreed by Mexico and thus the process may differ depending on the treaty that is being applied. However typically in this process the tax authorities of the countries involved in the disputed resolution engage in negotiations to solve the referred dispute./Currently, arbitration has only been agreed and is in force on the Canada and the Mexico-Netherlands treaty, however some of the most recently negotiated or renegotiated treaties provide that when Mexico agrees an arbitration disposition in the future, this will automatically apply to these treaties as well.
Is there a user fee to use the
process? No Yes No
What types of tax issues does the process cover? (eg Valuation, timing, Transfer pricing, transactions, other)
Rulings can be requested only to the extent these refer to real facts and circumstances on any tax law matter/Administrative appeals cover any tax law and tax procedural issues.
Transfer Pricing These procedures are used for cases in which double taxation may be occurring.
The Netherlands
[email protected] +31 88 40 78411Brief description of available Alternative Dispute Resolution processes
The Netherlands has multiple Alternative Dispute Resolution processes, including
‘Horizontal Monitoring’ and ‘Mediation’. In April 2005 the Dutch Tax Authorities commenced a pilot named ‘Horizontal Monitoring’ involving 20 of the largest corporate taxpayers in the Netherlands after which it became official policy of the Dutch tax authorities.
Mediation has been introduced by means of a pilot in 2004 by the Dutch Tax
Authorities. In January 2005 the Dutch lower Chamber accepted mediation as part of the tax procedures. Since April 2007 every court offers parties the opportunity to solve tax disputes by means of mediation.
At the end of 2005 also the Dutch Tax Authorities offered mediation as a way of alternative dispute resolution. The mediators are employees of the Dutch Tax Authority, but they are in practice totally independent.
Description of the processes Process 1 Process 2
What is the process called? Horizontal Monitoring Mediation
When was it introduced? April 2005 January 2005
Is the process settled in law? Is the process fully documented?
Participating tax payers usually formalize their and the Tax Authorities’ responsibilities and obligations by entering into a so called Compliance Agreement (‘handhavingsconvenant’). This agreement is a voluntary agreement and either party can withdraw from it at any time.
In January 2005 the Dutch lower Courts accepted mediation as part of the tax procedures. Since April 2007 every court (not the Supreme Court) offers parties the opportunity to solve tax disputes by means of mediation. At the end of 2005 also the Dutch Tax Authorities offered mediation as a method of Alternative Dispute Resolution.
Pre-filing or post-filing? Pre-filing (Since the Compliance Agreement is forward-looking it generally applies as of the date of signing, however usually concluding a Compliance Agreement is combined with a settlement agreement covering previous fiscal years to allow a catch-up and a start with clean sights)
Post-filing
How does the process work? The Horizontal Monitoring regime can be characterized as a form of voluntary disclosure.
Under this regime the taxpayer promises to actively notify the Tax Authorities of any issues with a possible and significant tax risk and to disclose all facts and circumstances regarding these issues without hesitation or reservation. In turn, the Tax Authorities promise, having received such disclosure, to provide timely advice on disclosed significant reporting positions, taking into account real commercial deadlines when doing so. In addition, the tax payer files tax returns within an agreed time frame and the Tax Authorities impose tax assessments as soon as possible after receipt of the return and where possible in consultation with the tax payer. As such both tax payer and the Tax Authorities will focus on the present in stead of focusing on the past.
Mediation is a way of conflict mediation in which concerned parties try to solve their dispute their selves without judgment of a judge. A mediator will help with the conflict mediation but will not give a judgment on the tax content of the dispute.
If parties come to an agreement, this agreement will be documented in a settlement agreement which will be signed by both parties.
Description of the processes Process 1 Process 2
Is there a user fee to use the process? No No, however if a court refers the parties to
mediation the first two and a half hours are free.
After this time, the costs are split amongst the parties. Mediation is offered by the Dutch Tax Authorities without charge.
What types of tax issues does the process cover? (eg Valuation, timing, Transfer pricing, transactions, other)
The Compliance Agreement typically covers all tax
types. Mediation typically covers all tax types.