The UK Tax Tribunal (the first judicial level in the UK) has recently looked at the procedure in relation to domestic litigation when an application for a Mutual Agreement Procedure has also been made by a taxpayer. In this case, Glencore International AG (& others) v HMRC, the Tribunal found for the taxpayer and has allowed a stay of the domestic appeals in order for the MAP to proceed. While this decision is not binding on other cases, it provides useful insight as at how the UK Tribunal views coterminous MAP and domestic litigation.
The taxpayers, Glencore International AG and Glencore Energy UK Ltd, made a MAP application to the Swiss Competent Authority under the UK / Swiss double tax treaty claiming that HMRC’s actions had resulted in double taxation and discrimination contrary to the provisions of the treaty. The UK/Swiss double tax treaty also provides for arbitration in MAP cases if the two sides cannot reach resolution. Following the UK’s domestic appeals procedure, the taxpayers had also submitted a number of appeals to the Tribunal relating to Diverted Profits Tax charges and transfer pricing adjustments made by HMRC, as well as Corporation Tax charges arising from the application of anti-avoidance provisions.
Whilst the Swiss Competent Authority had admitted the claims into MAP, the UK Competent Authority had taken the view that they would not be willing to engage in bilateral discussions with their Swiss counterparts until the domestic appeals had been withdrawn, suspended or finally determined.
The Tribunal proceedings