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Aitor Navarro
Intertax
Volume 49, Issue 10 (2021) pp. 803 – 817
https://doi.org/10.54648/taxi2021086
Abstract
The Multilateral Instrument (MLI) has a relevant impact on tax treaty measures concerning transfer pricing and the arm’s length principle (ALP). This article examines the incidence of five MLI provisions on transfer pricing that pose significantly interrelated issues, specifically, the saving clause of Article 11(1), the preamble enclosed in Article 6(1) expressing the will to eliminate double taxation without creating opportunities for reduced taxation through tax evasion or avoidance enshrined in the principal purpose test of Article 7(1), the corresponding adjustment provision of Article 17(1), and the mutual agreement provisions envisaged in Article 16.
Keywords
MLI, multilateral instrument, tax treaties, transfer pricing, arm’s length principle, abuse, corresponding adjustments, MAP.
Extract
This article focuses on the Base Erosion Profit Shifting (BEPS) Project and more specifically on the peer review of the four BEPS minimum standards. The first part of this contribution introduces the analysis of this process in the context of a case study of seven countries participating in the BEPS Inclusive Framework: Cameroon, Congo, Costa Rica, Jamaica, Peru, Sri Lanka, and Viet Nam. Thereafter, this article will provide the analysis of the peer review process by using the concept of throughput legitimacy developed by Schmidt (in other areas than tax law) that includes accountability, transparency, inclusiveness and openness. Its use can contribute to enhancing the governance of the peer review process and increasing legitimacy at the same time and thereby strengthening countries’ compliance with the four BEPS minimum standards. Its use can also facilitate helping countries that are part of the BEPS Inclusive Framework to build trust in the peer review process. In light of the findings of the case study, this article concludes that there are throughput legitimacy deficits and that these should be addressed by the OECD and countries participating in the BEPS Inclusive Framework. This article’s preliminary findings can be used for further research by the OECD, regional organizations, scholars, civil society, and think tanks to improve countries’ compliance with the four BEPS minimum standards.