S.L. 123.191 Art. 21Interaction with national proceedings and derogations. Cap. 372.

(1) The fact that the action that gave rise to a question in dispute has become final under the Income Tax Acts shall not prevent the affected persons from having recourse to the procedures provided for in these regulations.

(2) The submission of the question in dispute to the mutual agreement procedure or to the dispute resolution procedure under regulations 10 and 11 respectively shall not prevent the Commissioner from initiating or continuing judicial proceedings or proceedings for administrative and criminal penalties in relation to the same matters.

(3) Affected persons may have recourse to the remedies available to them under the national law of the Member States concerned. However, where the affected person has commenced proceedings to seek such a remedy, the terms of periods referred to in regulations 8 and 10(1) respectively shall commence from the date on which a judgement delivered in those proceedings has become final or on which those proceedings have otherwise been definitively concluded or where the proceedings have been suspended.

(4) Where a decision on a question in dispute delivered by the Administrative Review Tribunal or the Court of Appeal has been rendered final and conclusive in terms of article 38 of the Income Tax

Management Act:

(a) before an agreement has been reached by the competent authorities of the Member States concerned under the mutual agreement procedure under regulation 10 on that question in dispute, the Commissioner shall notify the competent authorities of the other Member States concerned of that decision and that the procedure is to be terminated as from the date of such notification;

(b) before the affected person has made a request under regulation 11(1), the provisions of regulation 11(1) do not apply if the question in dispute had remained unresolved during the whole of the mutual agreement procedure under regulation 10, in which case the Commissioner shall inform the other competent authorities of the Member States concerned of the effect of that decision;

(c) the dispute resolution process under regulation 11 is to be terminated if the decision was rendered at any time after an affected person has made a request under regulation 11(1) but before the Advisory Commission or the Alternative Dispute Resolution Commission has delivered its opinion to the competent authorities of the other Member States concerned, in conformity with regulation 19, in which case the Commissioner is to inform the competent authorities of the other Member States concerned and the Advisory Commission or the Alternative Dispute Resolution Commission of the effect of that decision.

(5) The submission of a complaint as provided under regulation 4 shall put an end to any other ongoing proceedings under the mutual agreement procedure or dispute resolution procedure under an agreement or convention that is being interpreted or applied in relation to the relevant question in dispute. Such other ongoing proceedings concerning the relevant question in dispute shall come to an end with effect from the date of the first receipt of the complaint by any one (1) of the competent authorities of the Member States concerned. MECHANISMS DIRECTIVE IMPLEMENTATION

(6) By way of derogation from regulation 11, the Commissioner may deny access to the dispute resolution procedure under that regulation in cases where penalties were imposed under the Income Tax Acts in relation to the adjusted income or capital for tax fraud, wilful default and gross negligence. Where judicial or administrative proceedings were commenced that could potentially lead to such penalties, and these proceedings are being conducted simultaneously with any of the proceedings referred to in these regulations, the Commissioner may stay the proceedings under these regulations as from the date of acceptance of the complaint until the date of the final outcome of those proceedings.

(7) The Commissioner may deny access to the dispute resolution procedure under regulation 11 on a case-by-case basis where a question in dispute does not involve double taxation. In such a case, the Commissioner shall inform the affected person and the competent authorities of the other Member States concerned without delay.