19. Final decision

(1) Subject to paragraph (2), the Commissioners shall agree with the competent authority of each relevant Member State on how to resolve the question in dispute not later than 6 months from the date on which the opinion of the Advisory Commission or ADRC, as the case may be, is notified to them.

(2) The Commissioners may, with the competent authority of each Member State, make a decision which deviates from the opinion of the Advisory Commission or the ADRC, as the case may be.

(3) Where the Commissioners fail to reach an agreement with the competent authority of each Member State as to how to resolve the question in dispute before the end of the period specified in paragraph (1), the Commissioners shall be bound by the opinion of the Advisory Commission or the ADRC, as the case may be.

(4) The Commissioners shall give notice in writing to the affected person of the final decision on the resolution of the question in dispute (in these Regulations referred to as the “final decision”), being -

(a) the agreement referred to in paragraph (1), or

(b) in a case where no agreement is reached, the opinion of the Advisory Commission or the ADRC, as the case may be,

as soon as practicable, but in any case not later than 30 days from the date of the final decision.

(5) Where an affected person does not receive notice of the final decision before the end of the period specified in paragraph (4), the affected person may apply to the Court to obtain the final decision.

(6) (a) The final decision shall be binding on the Commissioners and shall not constitute a precedent.

(b) Subject to the affected person accepting the final decision and renouncing any right to seek any remedy that may be available under the law of the State not later than 60 days from the date on which notice of the final decision is given to the affected person under paragraph (4), the final decision shall be implemented by the Commissioners, subject to subparagraph (e), within the period specified in clause (i) or (ii), as the case may be, of subparagraph (d), irrespective of any time limits provided by or under the Act of 1997.

(c) The Act of 1997 and any instrument made thereunder shall apply with any necessary modifications for the purpose of giving effect to subparagraph (b).

(d) Where the implementation of a final decision -

(i) involves a claim by the affected person for a repayment of tax for a chargeable period or chargeable periods, the Commissioners shall make a repayment of tax for a chargeable period or chargeable periods not later than 60 days from the date on which the claim to the repayment of tax, if it were a repayment of tax due under section 865(2) of the Act of 1997, would become a valid claim (within the meaning of section 865(1) of the Act of 1997), or

(ii) does not involve a claim by the affected person for a repayment of tax but requires the Commissioners to amend an assessment to tax for a chargeable period or chargeable periods, the Commissioners shall amend the assessment for a chargeable period or chargeable periods not later than 60 days from the date on which the affected person has provided the Commissioners with all information reasonably required for the purposes of amending the assessment for the chargeable period.

(e) In the case of a final decision referred to in paragraph (4)(b), the Commissioners shall not be obliged to implement the final decision where the Court in its application of the criteria under Regulation 13 or, in the case of a relevant Member State, a judicial body in its application of Article 8 of the Directive, decides that there was a lack of independence in the case of any member of the Advisory Commission or ADRC, as the case may be.

(f) Where the Commissioners fail to implement the final decision within the period specified in clause (i) or (ii), as the case may be, of subparagraph (d), the affected person may apply to the Court for an order requiring the Commissioners to implement the final decision in accordance with its terms.

(7) In this Regulation “chargeable period” has the meaning given to it by section 321(2) of the Act of 1997.