On May 21, 2018 the South African Revenue Service (SARS) released a Draft Guide on Mutual Agreement Procedures for comments. Interested parties have until June 15, 2018 to submit comments on the draft guide.


The draft guide discusses a.o. the following topics:

·       Background

o   What is a mutual agreement procedure?

o   Legal basis for mutual agreement procedure

o   Multilateral Instrument

o   The role of a competent authority

o   South Africa mutual agreement procedure profile and website

·       In what instances would mutual agreement procedure apply?

o   Taxation not in accordance with the Convention

§  Dual residence

(a) Place of effective management

(b) Mutual agreement

§  Withholding taxes withheld not in accordance with the relevant double taxation agreement

§  Transfer pricing mutual agreement procedure cases

o   Difficulties or doubts arising as to the interpretation or application of the Convention

·       Circumstances in which a mutual agreement procedure request may be accepted or denied

o   No action by one or both of the jurisdictions results or will result in taxation not accordance with the Convention

o   Time limits for requesting a mutual agreement procedure

§  Time limitation in double taxation agreements

§  Domestic tax law (prescription – three-year period)

§  Extension of time under prescription

o   Objection, alternative dispute resolutions and audit settlements

o   Right to access the mutual agreement procedure when domestic or treaty-based antiabuse rules have been applied

·       Making a mutual agreement procedure request

o   General mutual agreement procedure process

o   Format of a mutual agreement procedure request

o   Minimum information requirements

o   Mutual agreement procedure request for multiple tax years and recurring issues

o   Checklist before submitting a mutual agreement procedure request

o   How to submit a mutual agreement procedure request

o   Withdrawal of a mutual agreement procedure request

o   Use of information within a mutual agreement procedure process

·       Concluding a mutual agreement procedure request

o   Objections not considered to be justified

o   Notifying the taxpayer

o   Providing relief

o   Secondary adjustments, withholding tax and repatriation on transfer pricing adjustments

o   Penalties and interest

·       Interaction with domestic law

o   Suspension of payment pending mutual agreement procedure outcome

o   Mutual agreement procedure and assistance in collection of taxes

·       Miscellaneous issues

o   Advance pricing arrangement programmes

o   Issues related to self-initiated foreign adjustments

o   Protective mutual agreement procedure filing

o   South Africa’s position on mutual agreement procedure arbitration

o   Pension and annuities (RST01 and RST02 application forms)

o   Multilateral mutual agreement procedures

Click here to be forwarded to the Draft Guide on Mutual Agreement Procedures as released for comments by SARS on May 21, 2018.


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