e.1 General matters

As a general rule, the obligation imposed on the competent authorities to do everything possible to resolve the matter by means of a mutual agreement, in order to avoid taxation that is not in accordance with the applicable convention, is not an obligation to achieve a particular outcome. Nevertheless, the situation changes when the instrument under which the mutual agreement procedure is conducted provides for an arbitration stage.

For the time being, only Title IV of the Regulation on Mutual Agreement Procedures (which regulates the mechanism established in the Directive), the Arbitration Convention and the current Tax Treaties signed by Spain with Switzerland, Japan, the United States and the United Kingdom provide for an arbitration stage to the mutual agreement procedure regulated in them. However, the entry into force in Spain of the Multilateral Convention under project BEPS will, give rise to the introduction of arbitration into other Tax Treaties signed by Spain.

In any event, it should be borne in mind that the applicability of the arbitration stage provided for in the Tax Treaties may require the competent authorities of the contracting states to establish, by mutual agreement, how the arbitration is to be implemented.