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  • When you can request a MAP

    You may request a MAP when you consider the actions of one or both jurisdictions results (or will result) in taxation not in accordance with a tax treaty. The risk of such taxation must be probable (not merely possible). This can arise from a variety of actions by a jurisdiction, including:

    • a notice of assessment or amended assessment
    • a statement of audit position
    • a private ruling
    • a certificate of withholding.

    Also, you may request a MAP when you have initiated an adjustment in good faith. For example, if you lodge a self-amendment request or a request under the domestic laws of a treaty partner country to amend a tax return to adjust the price of your related party transactions, or the profits attributable to a permanent establishment, to reflect arm's length conditions.

    We will consider your self-initiated adjustment to be made in good faith if:

    • it reflects a good faith effort on your part to ensure that you are reporting your income or profits correctly
    • you have fulfilled properly and in a timely manner all your taxation obligations related to the income or profits under the domestic tax laws of both jurisdictions.

    See also:

    Time limit for requesting a MAP

    Most of Australia’s tax treaties require you to request your case be reviewed in a MAP within three years of you first being advised that you are to be (or likely to be) taxed not in accordance with a treaty. However, the time limit specified in the article dealing with MAP in each of Australia’s tax treaties varies.

    We will apply this limit in a way that is most favourable to you. The time limit for submitting a MAP request will usually start from the day the notice of assessment or amended assessment issues.

    We cannot accept your MAP request after the time limit expires.

    MAP and the general anti-avoidance rules

    You are able to request MAP for tax that results from the application of the general anti-avoidance rules in Part IVA of the ITAA 1936.

    This includes the multinational anti-avoidance law and the diverted profits tax rules both of which are a part of Part IVA.

    Importantly, however, Part IVA is not restricted by the application of Australia’s tax treaties (see subsection 177B(1) of the ITAA 1936 and subsection 4(2) of the Agreements Act 1953) and therefore it prevails regardless of whether the resultant tax is contrary to the provisions of a treaty. As a result, we cannot resolve a case under MAP to the extent that it involves the application of Part IVA.

    See also:

    MAP and settlements

    You are able to request MAP for matters which are the subject of a settlement agreement with the ATO. However, settlement agreements are intended to resolve the matters in dispute for both parties and there may be consequences under the settlement deed for continuing the dispute through the MAP process. We recommend you consider possible double taxation, and whether you intend to request MAP, prior to entering into a settlement agreement.

      Last modified: 22 Mar 2021QC 56904