Executive summary

The Protocol (the Protocol) amending the DTA between Germany and Mauritius, signed in Berlin on 29 October 2021, is effective in Mauritius on the date prescribed by the Minister of Finance, Economic Planning and Development in a notice published in the Official Gazette. In that respect, General Notice No. 2 of 2023 provides that the Protocol shall be deemed to have come into operation on 16 December 2022. Mauritius has a tax year of 30 June so the Protocol will be in force as from 1 July 2023.

The Protocol essentially changes the preamble to the DTA and provides the possibility for an arbitration process under the Mutual Agreement Procedure.

Detailed discussion

The changes addressed in the Protocol are:

Preamble

Article 1 of the Protocol amended the preamble of the DTA and now specifically provides that it is not the objective of the DTA to create opportunities for non-taxation or reduced taxation through tax evasion or avoidance. This provision is consistent with Article 6 of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI).

Mutual Agreement Procedure

Article 2 of the Protocol added a new paragraph to Article 25 of the DTA on the Mutual Agreement Procedure. The new paragraph provides that any unresolved issues may be submitted to arbitration by a person if a request is made in writing. The new paragraph applies if the competent authorities have not been able to reach an agreement within three years from the date when all the required information has been provided to the two competent authorities. Where a final decision on those unresolved issues has already been given by a court or administrative tribunal of either State, it is not possible to seek redress through an arbitration. The decision is binding on the two States, unless the person who is directly affected by the case does not accept the mutual agreement that implements the arbitration decision. The mode of application of this new paragraph shall be mutually agreed by Germany and Mauritius.

Article 3 of the Protocol provides that the following cases are excluded from the arbitration process introduced by Article 2 of the Protocol:

Any case of anti-abuse provided in a domestic tax law or a tax treaty

Any case of tax offense under a revenue law by a taxpayer by a related person or a person acting on his behalf

Any case of untaxed income or capital

Any case that is within the application of the Convention of the Elimination of Double Taxation in Connection with the Adjustment of Profits of Associated Enterprises (90/436)

Any case where double taxation was avoided using the credit method under either the domestic law or a tax treaty

Any facts determined as part of a mutual agreement of facts as defined in the German Federal Ministry of Finance circular of 30 July 2008

Implications

The DTA is not a covered tax agreement and the change in the protocol is the appropriate step to align the treaty with Action 6 of the MLI. The introduction of an arbitration process should enhance the resolution procedure. The specific exclusion of certain cases imply that this process will only apply to genuine cases.

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

Ernst & Young (Mauritius), Ebene

• Ryaad Owodally | ryaad.owodally@mu.ey.com

Ernst & Young Société d’Avocats, Pan African Tax – Transfer Pricing Desk, Paris

• Bruno Messerschmitt | bruno.messerschmitt@ey-avocats.com

Ernst & Young LLP (United Kingdom), Pan African Tax Desk, London

• Kwasi Owiredu | kwasi.owiredu@uk.ey.com

Ernst & Young LLP (United States), Pan African Tax Desk, New York

Brigitte Keirby-Smith | brigitte.f.keirby-smith1@ey.com

Dele A. Olagun-Samuel | dele.olaogun@ey.com