January 20, 2023
Mauritius Protocol amending Double Taxation Avoidance Agreement with Germany will be in force as of 1 July 2023
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.
The changes addressed in the Protocol are:
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:
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.
For additional information with respect to this Alert, please contact the following:
Ernst & Young (Mauritius), Ebene
Ernst & Young Société d'Avocats, Pan African Tax — Transfer Pricing Desk, Paris
Ernst & Young LLP (United Kingdom), Pan African Tax Desk, London
Ernst & Young LLP (United States), Pan African Tax Desk, New York