SECTION 13. PROTECTIVE CLAIMS

.01 In General . Most U.S. tax treaties provide that MAP resolutions are to be implemented by the United States and the treaty country notwithstanding any time limits or other procedural limitations under domestic law. A minority of U.S. tax treaties may not allow the U.S. competent authority to waive such limitations. In particular cases, domestic barriers may be waived only if a MAP request is accepted and a MAP resolution is reached. In addition, because there are circumstances that may not be under the control of the taxpayer or of the U.S. or foreign competent authority, it is advisable as a general matter for the taxpayer or a related person to take protective measures under applicable domestic law to increase the likelihood that a MAP resolution in its MAP case can be implemented in both treaty countries and to protect any rights of access to alternative remedies outside of the MAP process from being barred by administrative, legal, or procedural barriers. This section sets forth procedures and guidelines for taking such protective measures.

.02 Protective Claims Generally . (1) In General. A protective claim is made to ensure that time limits or administrative, legal, or procedural barriers under the Code or regulations are satisfied to protect the taxpayer’s right to a potential credit or refund in the event that a MAP resolution is reached and to retain the taxpayer’s rights of access to any alternative remedies available to it outside of the MAP process under the Code or regulations. A protective claim is distinct from a treaty notification ( see section 14) and does not affect the notification deadline under a given treaty, even though a protective claim and treaty notification may initially be made in the same submission and may be updated annually in the same notification ( see section 14.05).

(2) Timing of Protective Claims. Generally, a taxpayer should consider making a protective claim when it has reason to believe that any action of a tax authority has resulted or is likely to result in a MAP issue. However, it may be advisable to make a protective claim at earlier times, for example, when the claim concerns a recurring MAP issue or when the taxpayer is otherwise aware that an adjustment is likely for a given taxable year. A taxpayer may consult with the U.S. competent authority to determine when and in what manner it is advisable to make a protective claim.

(3) IRC § 6402 Requirements. To be a valid protective claim for credit or refund for purposes of this revenue procedure, the claim must be in writing and meet the requirements of section 6402 of the Code and the regulations thereunder other than the requirement in Treas. Reg. §301.6402–3 to file the claim on the appropriate form. Accordingly, a protective claim must, at a minimum: (a) fully advise the IRS of the grounds on which the credit or refund is claimed; (b) contain sufficient facts to apprise the IRS of the exact basis of the claim; (c) describe and identify the contingencies affecting the claim; (d) state the year for which the claim is being made; (e) be verified by written declaration made under penalties of perjury; and (f) be filed before the expiration of the applicable period of limitation to which the claim relates.

(4) Methods for Making Protective Claims . For purposes of this revenue procedure only, a protective claim for credit or refund may be made in any of the following ways: (a) including the claim in a pre-filing memorandum; (b) including the claim in a MAP request; or (c) filing a letter specifically stating that a protective claim is being made. In conjunction with any of these methods, the taxpayer may, but is not required to, file the form specified in Treas. Reg. §301.6402–3.

.03 Making Protective Claim in Pre- Filing Memorandum or MAP Request. For the placement of a protective claim within a MAP request, see the appendix. If the protective claim is made in a pre-filing memorandum, the memorandum must contain a separate section captioned ”Protective Claim Pursuant to Section 13 of Rev. Proc. 2014–XX”. In that section, the

taxpayer must declare that it is making a protective claim prior to filing a potential MAP request regarding the MAP issues set forth in the memorandum. The section must also contain the information described in section 13.02(3). Any pre-filing memorandum or MAP request submitted after a protective claim is made in the form of a letter ( see section 13.04) should refer to such letter. The U.S. competent authority will notify the taxpayer it has received the protective claim or that the claim made by the taxpayer does not constitute a valid protective claim and give instructions as to whether, and how, the claim can be remedied to be valid.

.04 Making Protective Claim by Letter . (1) In General. There may be situations in which a taxpayer will be unable to submit a pre-filing memorandum or file a MAP request before the applicable period of limitations expires. In such situations, a separate protective claim in the form of a letter should be filed. For example, a letter would be appropriate when a foreign tax authority is considering, but has not yet proposed, an adjustment; a foreign tax authority has proposed an adjustment and administrative or judicial remedies are expected to be pursued in the treaty country before a MAP request is filed; or the terms of the applicable treaty require that notification of a claim be made within a certain time, independent of any action by a tax authority.

(2) Filing of Letter. The protective claim letter must be filed in the same place and manner as a pre-filing memorandum or MAP request. If a taxpayer filing a protective claim letter is under examination by the IRS, or if an examination begins after the letter is filed, the taxpayer must send a copy of the letter to the IRS office conducting the examination. A template of a letter suitable for making a protective claim is provided on the APMA website [link to be included when available].

.05 Effect of Protective Claim . A protective claim made in the form of a letter, a pre-filing memorandum, or a MAP request that complies with the provisions of this revenue procedure will meet the filing requirements for a valid claim for credit or refund under section 6402 of the Code and the regulations thereunder with respect to the MAP issues set forth in the claim, so

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long as it is filed before the expiration of the applicable statutory period of limitations for filing claims for credit or refund under the Code.

.06 Annual Notification Requirement . After initially filing a protective claim letter or after making a protective claim in a pre-filing memorandum and before filing its MAP request, the taxpayer must annually notify the U.S. competent authority as to whether it may still file a MAP request. The annual notification must be filed no later than the date on which the taxpayer timely files its tax return for each taxable year ending after the taxable year in which it filed the protective claim ( see section 1.03 for the rule applicable to deadlines). The annual notification must: (1) be titled “Annual Notification of Protective Claim”; (2) reference the initial protective claim; (3) contain a declaration that the taxpayer is providing its annual notice of protective claim pursuant to this section 13 and that it is requesting that its protective claim remain active; and (4) where appropriate, update or otherwise correct the information set forth in the protective claim or any subsequent annual notifications. The annual notification must be filed in the same place and manner as a pre-filing memorandum or MAP request. The U.S. competent authority may deny assistance to a taxpayer that fails to provide the annual notification.