Tax Treaties with Binding Arbitration Go into Effect
Kelley, Justin, Dispute Resolution Journal
The U.S. Senate recently ratified a new tax treaty with Belgium and a protocol to an existing tax treaty with Germany, both of which include provisions for baseball-style arbitration to resolve tax disputes that the two countries cannot settle themselves. The Senate approved the U.S.-Belgian tax treaty and the protocol to the U.S.-German tax treaty on Dec. 14, 2007. They went into effect on Jan. 1, 2008.
In transmitting these treaties to the Senate and recommending favorable consideration, President George W. Bush said these arbitration provisions are the first of their kind in a U.S. tax treaty. A State Department report accompanying the president's message suggested the business community would welcome these provisions.
Carol P. Tello, an attorney specializing in taxation with Sutherland Asbill & Brennan in Washington, D.C., suggested that providing for baseball arbitration should encourage the parties to submit reasonable proposals.
The arbitration provision in the tax treaty with Belgium calls for binding arbitration when the competent authorities have tried but are unable to reach an agreement regarding the application of the treaty.
The arbitration provision in the protocol to the German tax treaty limits mandatory arbitration to certain treaty articles. However, it gives the competent authorities discretion, on an ad hoc basis, to agree that binding arbitration shall be used for other matters subject to the "mutual agreement procedure" in Article 25. …