[Congressional Record Volume 155, Number 176 (Tuesday, December 1, 2009)]
[Senate]
[Pages S12069-S12070]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 EXECUTIVE REPORT OF COMMITTEE--TREATY

  The following executive report of committee was submitted:

       By Mr. KERRY, from the Committee on Foreign Relations:

[Treaty Doc. 111-4: Protocol Amending Tax Convention with France with 1 
             declaration and 1 condition (Ex. Rept. 111-1)]

       The text of the committee-recommended resolution of advice 
     and consent to ratification is as follows:

         VIII. Resolution of Advice and Consent to Ratification

       Resolved (two-thirds of the Senators present concurring 
     therein),
       Section 1. Senate Advice and Consent subject to a 
     declaration and a condition.
       The Senate advises and consents to the ratification of the 
     Protocol Amending the Convention between the Government of 
     the United States of America and the Government of the French 
     Republic for the Avoidance of Double Taxation and the 
     Prevention of Fiscal Evasion with Respect to Taxes on Income 
     and Capital, signed at Paris on August 31, 1994, as Amended 
     by the Protocol signed on December 8, 2004, signed on January 
     13, 2009, at Paris, together with a related Memorandum of 
     Understanding, signed January 13, 2009 (the ``Protocol'') 
     (Treaty Doc. 111-4), subject to the declaration of section 2 
     and the condition of section 3.
       Section 2. Declaration. The advice and consent of the 
     Senate under section 1 is subject to the following 
     declaration:

[[Page S12070]]

       The Protocol is self-executing.
       Section 3. Condition. The advice and consent of the Senate 
     under section 1 is subject to the following condition:
       1. Not later than two years from the date on which this 
     Protocol enters into force and prior to the first arbitration 
     conducted pursuant to the binding arbitration mechanism 
     provided for in this Protocol, the Secretary of Treasury 
     shall transmit the text of the rules of procedure applicable 
     to arbitration panels, including conflict of interest rules 
     to be applied to members of the arbitration panel, to the 
     committees on Finance and Foreign Relations of the Senate and 
     the Joint Committee on Taxation.
       2. Sixty days after a determination has been reached by an 
     arbitration panel in the tenth arbitration proceeding 
     conducted pursuant to this Protocol, the 2006 Protocol 
     Amending the Convention between the United States of America 
     and the Federal Republic of Germany for the Avoidance of 
     Double Taxation and the Prevention of Fiscal Evasion with 
     Respect to Taxes on Income and Capital and to Certain Other 
     Taxes (the ``2006 German Protocol'') (Treaty Doc. 109-20), 
     the Convention between the Government of the United States of 
     America and the Government of the Kingdom of Belgium for the 
     Avoidance of Double Taxation and the Prevention of Fiscal 
     Evasion with Respect to Taxes on Income, and accompanying 
     protocol (the ``Belgium Convention'') (Treaty Doc. 110-3), or 
     the Protocol Amending the Convention between the United 
     States of America and Canada with Respect to Taxes on Income 
     and on Capital (the ``2007 Canada Protocol'') (Treaty Doc. 
     110-15), the Secretary of Treasury shall prepare and submit a 
     detailed report to the Joint Committee on Taxation and the 
     Committee on Finance of the Senate, subject to law relating 
     to taxpayer confidentiality, regarding the operation and 
     application of the arbitration mechanism contained in the 
     aforementioned treaties. The report shall include the 
     following information:
       I. The aggregate number, for each treaty, of cases pending 
     on the respective dates of entry into force of this Protocol, 
     the 2006 German Protocol, the Belgium Convention, and the 
     2007 Canada Protocol, along with the following additional 
     information regarding these cases:
       a. The number of such cases by treaty article(s) at issue;
       b. The number of such cases that have been resolved by the 
     competent authorities through a mutual agreement as of the 
     date of the report; and
       c. The number of such cases for which arbitration 
     proceedings have commenced as of the date of the report.
       II. A list of every case presented to the competent 
     authorities after the entry into force of this Protocol, the 
     2006 German Protocol, the Belgium Convention, and the 2007 
     Canada Protocol, with the following information regarding 
     each case:
       a. The commencement date of the case for purposes of 
     determining when arbitration is available;
       b. Whether the adjustment triggering the case, if any, was 
     made by the United States or the relevant treaty partner;
       c. Which treaty the case relates to;
       d. The treaty article(s) at issue in the case;
       e. The date the case was resolved by the competent 
     authorities through a mutual agreement, if so resolved;
       f. The date on which an arbitration proceeding commenced, 
     if an arbitration proceeding commenced; and
       g. The date on which a determination was reached by the 
     arbitration panel, if a determination was reached, and an 
     indication as to whether the panel found in favor of the 
     United States or the relevant treaty partner.
       III. With respect to each dispute submitted to arbitration 
     and for which a determination was reached by the arbitration 
     panel pursuant to this Protocol, the 2006 German Protocol, 
     the Belgium Convention, and the 2007 Canada Protocol, the 
     following information shall be included:
       a. In the case of a dispute submitted under this Protocol, 
     an indication as to whether the presenter of the case to the 
     competent authority of a Contracting State submitted a 
     Position Paper for consideration by the arbitration panel;
       b. An indication as to whether the determination of the 
     arbitration panel was accepted by each concerned person;
       c. The amount of income, expense, or taxation at issue in 
     the case as determined by reference to the filings that were 
     sufficient to set the commencement date of the case for 
     purposes of determining when arbitration is available; and
       d. The proposed resolutions (income, expense, or taxation) 
     submitted by each competent authority to the arbitration 
     panel.
       3. The Secretary of Treasury shall, in addition, prepare 
     and submit the detailed report described in paragraph (2) on 
     March 1 of the year following the year in which the first 
     report is submitted to the Joint Committee on Taxation and 
     the Committee on Finance of the Senate, and on an annual 
     basis thereafter for a period of five years. In each such 
     report, disputes that were resolved, either by a mutual 
     agreement between the relevant competent authorities or by a 
     determination of an arbitration panel, and noted as such in 
     prior reports may be omitted.
       4. The reporting requirements referred to in paragraphs (2) 
     and (3) supersede the reporting requirements contained in 
     paragraphs (2) and (3) of Section 3 of the resolution of 
     advice and consent to the 2007 Canada Protocol, approved by 
     the Senate on September 23, 2008.

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