Denial to initiate the mutual agreement procedure
Within one month of the day following notification of the decision denying the initiation of the mutual agreement procedure, the following appeals may be lodged against that decision:
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an appeal for reconsideration of the decision by the body which made it; or,
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an economic-administrative claim in the Central Economic-Administrative Tribunal, by means of a document addressed to the competent authority that made the decision refusing initiation, which will send it to the court, together with the relevant file.
Both appeals may not be lodged at the same time.
Where the amount in question is less than 6,000 euros, or 72,000 euros in the case of claims against bases or valuations, the economic-administrative claim will be conducted under the fast-track procedure in the Central Economic-Administrative Tribunal and the arguments made must be included in the document used to bring the claim.
Where the Spanish competent authority denies a request for initiation and that decision is confirmed or denied by a Spanish court in a final ruling, that decision is always definitive as the court’s decision is binding on the Spanish competent authority, in accordance with Article 118 of the Spanish Constitution.
Where the Spanish competent authority denies the initiation of a mutual agreement procedure and an appeal is not lodged against that decision within the required time limit or the decision is confirmed by the Central Economic-Administrative Tribunal in a final ruling, only where the request for initiation of the mutual agreement procedure was submitted under the mechanism established in Directive (EU) 2017/1852 and at least one of the Member States concerned has accepted it, may the taxpayer request that the competent authorities of the Member States concerned set up an advisory commission to decide whether or not to allow the initiation of the procedure.
Where the Spanish competent authority has accepted the initiation of a mutual agreement procedure and the competent authority of at least one other Member State concerned has denied the initiation, the taxpayer may also request that the above-mentioned advisory commission be set up.
For the purposes of setting up the advisory commission to decide whether or not to accept the request for i a mutual agreement procedure, initiation will be deemed to have been refused where there is no right of appeal against the decision rejecting the request or where that decision has been confirmed in a final administrative or judicial ruling.
It is only possible to request that an advisory commission be set up to decide regarding the initiation of a mutual agreement procedure under the Directive where, the request for initiation having been denied by one or more of the competent authorities concerned, at least one of them has accepted it and, moreover, the following conditions are satisfied:
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it is not possible to bring an appeal because the relevant time limit has expired;
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there is no appeal pending;
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the taxpayer has formally waived their right to appeal; and
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where initiation has been denied in a final administrative or judicial decision confirming the competent authority’s decision refusing initiation, that decision is not binding on the competent authority.
The request for the advisory commission to be set up must be submitted, in writing, within fifty calendar days of the day following notification of the latest decision granting access to the advisory commission in accordance with Article 40.1 of the Regulation on Mutual Agreement Procedures.
The request for the advisory commission to be set up must be submitted to the competent authorities of the Member States concerned. However, where the taxpayer is resident in Spain for tax purposes and:
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is an individual; or
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is not a large undertaking and does not form part of a large group, in accordance with Article 3(4) and (7) of Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013,
they may submit the request for the advisory commission to be set up solely to the Spanish competent authority, which will send a notification, simultaneously, to the competent authorities of the other Member States concerned, within two months of the receipt of the request by its register. The taxpayer will be deemed to have submitted the request to all Member States concerned on the date of that notification.
The advisory commission to decide regarding the initiation of a mutual agreement procedure under the Directive will be set up within 120 calendar days of receipt of the relevant request by the register of the competent authority and, once set up, its chair must inform the taxpayer of that fact without delay.
The advisory commission referred to in this article will, within six months of the date on which it is set up, make a decision regarding whether or not to allow the initiation of the mechanism and will notify its decision to the competent authorities within thirty calendar days of making it.
Where the advisory commission confirms that all requirements established for allowing initiation have been satisfied, the mechanism will be initiated at the request of any of the competent authorities. The competent authority requesting initiation will notify the advisory commission, the other competent authorities concerned and the taxpayer of that request. The two-year period established for arbitration will start from the date of notification of the decision made by the advisory commission to allow the initiation of the mutual agreement procedure.
Where none of the competent authorities has requested the initiation of the mutual agreement procedure within sixty calendar days of the date of notification of the decision of the advisory commission, the advisory commission will issue an opinion on how to resolve the question to which the procedure relates.