b. Acceptance of the agreement by the Spanish taxpayer (and withdrawal of any pending appeals)
The agreement by which the competent authorities eliminate the double taxation or taxation not in accordance with the convention (whether by mutual agreement or unilaterally by the competent authority of the state where the mutual agreement procedure was requested) will apply, provided that, within sixty calendar days from the day following notification of the agreement, the taxpayer or taxpayers:
- accept the content of the agreement; and
- waive their right to appeal, or withdraw any pending appeals which they may have brought in relation to the elements of the tax obligation which have been the subject of the mutual agreement procedure.
Where an appeal has already been brought in relation to the matters which are the subject of the mutual agreement procedure, the taxpayer must provide evidence of waiver or withdrawal within the period of sixty calendar days referred to in the preceding paragraph.For this purpose, a copy of the acknowledgement of submission issued by the register of the body where the appeal was lodged, together with a copy of the letter of waiver/withdrawal submitted, is usually submitted.
It is not possible to accept part of the agreement reached between the competent authorities.Partial acceptance will be treated as a rejection by the taxpayer.
The taxpayer shall be deemed to have rejected the agreement where, after the agreement has been notified, the taxpayer:
- formalises their rejection in a document stating their dissatisfaction with the content of the agreement;or
- does not expressly accept the content of the agreement within the period of sixty calendar days starting from the day following notification of the agreement;or
- does not waive their right to appeal in relation to the matters resolved by the mutual agreement procedure or, where applicable, does not withdraw from any pending appeals within the period of sixty calendar days starting from the day following notification of the agreement.
If the taxpayer rejects the agreement:
- The competent authority will communicate that rejection to the competent authorities of the other states concerned and will consider the case closed.
- Under Article 11.2.d) of the Regulation on Mutual Agreement Procedures, the initiation of a subsequent mutual agreement procedure regarding the same question may be refused.
- The taxpayer may continue with any appeals lodged with the domestic courts and tribunals. Given that, under Articles 16.7 and 54.5 of the Regulation on Mutual Agreement Procedures, the mutual agreement (rejected by the taxpayer) does not constitute a precedent, that agreement will not bind either the economic-administrative tribunal or courts. Nor will it bind the review body in the case of an appeal for reconsideration of the original decision.
In the event that the mutual agreement procedure is decided at the unilateral stage, 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 will 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, when the request for a mutual agreement procedure has been submitted to the Spanish competent authority, both in relation to an adjustment made by the Spanish tax administration and an adjustment made by the tax administration of another state, acceptance by the Spanish taxpayer will be sought
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.