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June 17, 2021
2021-5681

OECD releases Greece Stage 2 peer review report on implementation of Action 14 minimum standard

Executive summary

On 25 May 2021, the Organisation for Economic Co-operation and Development (OECD) released the Stage 2 peer review report of Greece relating to the outcome of the peer monitoring of the implementation of the Base Erosion and Profit Shifting (BEPS) minimum standard under Action 14 on improving tax dispute resolution mechanisms. Stage 2 focuses on monitoring the follow-up of any recommendations resulting from Greece’s Stage 1 peer review report.1

Overall, Greece meets the majority of the elements of the Action 14 minimum standard and worked to address most of the deficiencies monitored.

Detailed discussion

Background

In October 2016, the OECD released the peer review documents (i.e., the Terms of Reference and Assessment Methodology) on Action 14 which form the basis of the Mutual Agreement Procedure (MAP) peer review and monitoring process under BEPS Action 14.2

The Terms of Reference translate the minimum standard approved into a basis for peer review, consisting of 21 elements complemented by 12 best practices. The Terms of Reference assess a Member’s legal and administrative framework, including the practical implementation of this framework to determine how its MAP regime performs relative to the 21 elements in four key areas: (i) preventing disputes; (ii) availability and access to MAP; (iii) resolution of MAP cases; and (iv) implementation of MAP agreements.

The Assessment Methodology establishes detailed procedures and guidelines for a two-stage approach to the peer review and monitoring process. Stage 1 involves the review of a Member’s implementation of the minimum standard based on its legal framework for MAP and the application of this framework in practice. Stage 2 involves the review of the measures taken by the Member States to address any shortcomings identified in its Stage 1 peer review.

Minimum standard peer review reports

The report is divided into four parts, namely:

  1. Preventing disputes

  2. Availability and access to MAP

  3. Resolution of MAP cases

  4. Implementation of MAP agreements

Each part addresses a different component of the minimum standard.

Overall, Greece addressed most of the shortcomings identified in its Stage 1 peer review report.

In order to be fully compliant with all four key areas of an effective dispute resolution mechanism under the Action 14 minimum standard, the OECD peer review report recommended to Greece that it amend and update a certain number of its tax treaties. Accordingly, Greece signed the Multilateral Instrument (MLI),3 which was ratified in Greece by Law 4768/2021, through which a number of its tax treaties will potentially be modified to fulfil the requirements under the Action 14 minimum standard. The consolidated versions of Greece’s tax treaties (57 double tax treaties, 56 in force) are expected to be issued by the competent tax authority (Directorate of International Economic Relations) in the near future. Where treaties will not be modified, upon entry into force of the MLI for the treaties concerned, Greece reported that it intends to update all of its tax treaties to be compliant with the requirements under the Action 14 minimum standard via bilateral negotiations.

Preventing disputes

In general, Greece meets the BEPS Action 14 minimum standard concerning the prevention of disputes. It has in place a bilateral Advance Pricing Agreement (APA) program.4 This APA program also enables taxpayers to now request rollbacks of bilateral APAs. In fact, Greece implemented the roll-back effect of both bilateral and multilateral APAs. Specifically, the possibility of roll-back implementation of bilateral or multilateral APAs in appropriate cases was established on and after 31 July 2020 through Article 17 of L. 4714/2020 (Government Gazette Α' 148/31-07-2020), covering both new APA requests as well as for those pending at the time of entry into force of the respective Law.

Availability and access to MAP

Greece meets most of the requirements regarding the availability and access to MAP under the Action 14 minimum standard. Specifically, all but one of Greece’s tax treaties contain a provision relating to MAP. Those treaties generally follow paragraphs 1 through 3 of Article 25 of the OECD Model Tax Convention.5 Its treaty network is largely consistent with the requirements of the Action 14 minimum standard, except for the fact that:

  • Approximately 28% of its tax treaties neither contain a provision stating that mutual agreements shall be implemented notwithstanding any time limits in domestic law (Article 25(2), 2nd sentence), nor set a time limit for making transfer pricing adjustments (Article 9.1 & Article 7.2).

  • Approximately 18% of its tax treaties do not state that the competent authorities may consult together for the elimination of double taxation for cases not provided for in the tax treaty (Article 25(3), 2nd sentence).

  • Approximately 16% of its tax treaties do not contain the equivalent of Article 25(1) to the OECD Model Tax Convention, whereby the majority of these treaties do not contain the equivalent of Article 25(1), first sentence, as it read prior to the adoption of the Action 14 final report.

Greece’s policy is to provide access to MAP in all eligible cases. However, it does not have in place a documented bilateral consultation or notification process for those situations in which its competent authority considers the objection raised by taxpayers in a MAP request as not justified.

Greece published a comprehensive MAP Guidance in 2018, including detailed information both on the substantial as well as on the procedural aspects of the process. Greece indicated that it is in the process of updating its MAP guidance to include information on whether MAP is available in cases of: (i) the application of anti-abuse provisions; (ii) multilateral disputes; and (iii) bona fide foreign-initiated self-adjustments and whether taxpayers can request for the multi-year resolution of recurring issues through MAP.

Greece also indicated that it has amended its policy and it intends to include the clarification that access to MAP will be provided for cases where an audit settlement was already entered into.

Resolution of MAP cases

Greece meets all the other requirements under the Action 14 minimum standard in relation to the resolution of MAP cases. Greece’s competent authority operates fully independently from the audit function of the tax authorities. Its organization is adequate and the performance indicators used are appropriate to perform the MAP function.

From the statistics provided in the report, it follows that Greece has not closed its MAP cases within the pursued average of 24 months for the period of 2016 to 2018. Furthermore, its MAP inventory has increased by 26% since 1 January 2016. Specifically, MAP cases were resolved in 35.57 months on average, which is above the 24-month average (which is the pursued average for resolving MAP cases received on or after 1 January 2016). While the average completion time has decreased in 2018 as compared to the period of 2016 to 2017, it is still above the 24-month average. There is therefore a risk that post-2015 cases are not resolved within the average of 24 months, which may indicate that the competent authority is not adequately resourced.

Furthermore, the MAP caseload has increased 27% since 1 January 2016, for both attribution/allocation and other MAP cases. This may also indicate that the competent authority is not adequately resourced to cope with this increase.

Overall, while Greece has taken some action to resolve cases in a timely manner, further actions should be taken to ensure a timely resolution of MAP cases. In that regard, Greece should devote additional resources to its competent authority to handle these cases and also to be able to address the increase in the number of MAP cases.

Implementation of MAP agreements

Greece also meets the Action 14 minimum standard as regards the implementation of MAP agreements. In addition, Greece monitors the implementation of MAP agreements.

When a MAP agreement is reached, the taxpayer is notified in writing of the outcome of the MAP within one month. The taxpayer is requested to indicate whether it accepts the implementation of such a MAP agreement within 60 days after being notified hereof.

Further the local tax offices are responsible for the implementation of MAP agreements and the competent authority ensures that they are effectively implemented by: (i) giving clear instructions to the local offices; and (ii) often contacting the local tax offices to ask for confirmation of the relevant implementation.

In addition, the competent authority intends to issue a decision regarding the monitoring of the implementation of the MAP agreement, in which the local tax authority will be asked to inform the competent authority about the specific actions taken regarding the implementation of MAP agreements.

Implications

In a post-BEPS world, where multinational enterprises (MNEs) face tremendous pressures and scrutiny from tax authorities, the release of Greece’s Stage 2 peer review report represents the continued recognition and importance of the need to achieve tax certainty for cross-border transactions for MNEs. While increased scrutiny is expected to significantly increase the risk of double taxation, the fact that tax authorities may be subject to review by their peers should be seen by MNEs as a positive step to best ensure access to an effective and timely mutual agreement process.

_____________________________________

For additional information with respect to this Alert, please contact the following:

Ernst & Young Business Advisory Solutions SA, Athens

Endnotes

  1. Making Dispute Resolution More Effective - MAP Peer Review Report, Greece (Stage 1)
  2. See EY Global Tax Alert, OECD releases BEPS Action 14 on More Effective Dispute Resolution Mechanisms, Peer Review, dated 31 October 2016.
  3. The Multilateral Instrument was the result of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting, which took place in 2016. The Parties of the Convention, recognizing the need for an effective mechanism to implement agreed changes, in a synchronized and efficient manner, across the network of existing agreements for the avoidance of double taxation on income without the need to bilaterally renegotiate each such agreement agreed MLI instrument to modify all existing Double Taxation Treaties concluded between them.
  4. An APA is an arrangement that determines, in advance of controlled transactions, an appropriate set of criteria (e.g., method, comparables and appropriate adjustment thereto, critical assumptions as to future events) for the determination of the transfer pricing for those transactions over a fixed period of time. The methodology to be applied prospectively under a bilateral or multilateral APA may be relevant in determining the treatment of comparable controlled transactions in previous filed years. The “roll-back” of an APA to these previous filed years may be helpful to prevent or resolve potential transfer pricing disputes.
  5. As determined by Article 25 of the OECD Model Tax Convention under the title “Mutual Agreement Procedure” which provides for the following: 1. Where a person considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Convention, he may, irrespective of the remedies provided by the domestic law of those States, present his case to the competent authority of either Contracting State. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Convention. 2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the Convention. Any agreement reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States. 3. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. They may also consult together for the elimination of double taxation in cases not provided for in the Convention. […]
 
 

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