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Guide to mutual agreement procedures

4.Unilateral stage

Mutual agreement procedures initiated under any of the three legal instruments (Tax Treaty, Arbitration Convention and Directive) can be concluded unilaterally when, the request for initiation having been accepted, the competent administratireceiving the request considers it to be well-founded and believes that it can find a solution acting by itself.In cases of transfer pricing, that solution may consist in the competent authority that receives the request withdrawing the adjustment made by the tax administration of that same state or agreeing to make the corresponding adjustment when the adjustment has been made by the tax administration of the other state.

Where the initiation of the mutual agreement procedure is requested in Spain and the Spanish competent authority considers that the request is well-founded and that it can find a solution acting by itself, the Spanish competent authority will make a decision resolving the matter, without involving the competent authorities of the other states concerned.Nevertheless, it will remain obliged to notify those other competent authorities of its decision.

The bilateral stage of the mutual agreement procedure would, therefore, not be initiated.

The decision will be notified to the taxpayer.The time limit for that notification in the case of procedures initiated under the Directive is thirty calendar days from the date on which the decision is made.

The decision will apply, provided that the taxpayer accepts it and withdraws any pending appeals, where applicable.

The decision concluding the procedure unilaterally will not constitute a precedent (Articles 16.7 and 54.5 of the Regulation on Mutual Agreement Procedures).

Furthermore, it will not be possible to lodge any kind of appeal against the above decision, without prejudice to the avenues of appeal available against the administrative decision or decisions issued to implement the decision (Article 14.2 of the Regulation on Mutual Agreement Procedures).

Equally, when the competent authority of the other state is able to find a solution to the problem in question acting by itself, it will make the relevant decision unilaterally (whether it be to withdraw the adjustment made by its tax administration or to make the corresponding adjustment for the adjustment made by the Spanish tax administration).

If the request for the mutual agreement procedure has been submitted to the competent authority of the other state and that authority decides to withdraw the adjustment made by its tax administration, acceptance of the decision by the Spanish taxpayer shall not be necessary, although the taxpayer will be notified of the conclusion of the mutual agreement procedure.

If the request has been submitted to the competent authority of the other state in relation to an adjustment made by the Spanish tax administration and the competent authority receiving the request decides unilaterally to make the corresponding adjustment, acceptance of the decision by the Spanish taxpayer will be required.

Finally, if the request has been submitted to the Spanish competent authority, in relation to an adjustment made by the Spanish tax administration or by the tax administration of the other state, acceptance by the Spanish taxpayer will be requested.

In conclusion, acceptance by the taxpayer will always be requested when the request for a mutual agreement procedure has been submitted to the Spanish competent authority.