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The Apple of Discord

What’s at stake: On August 30th, following the results of an in-depth state aid investigation started in 2014, the European Commission concluded that Ireland granted undue tax benefits of up to €13 billion to Apple. The decision is based on state aid grounds: the Commission argues that two tax rulings issued by Ireland effectively granted Apple preferential treatment, which amounted to state aid. The Commission ordered Ireland to recover up to €13 billion (plus interest) from Apple, but the decision is controversial and opinion differ as to the effects it will have. We summarize reactions.

By: Date: September 12, 2016 Innovation & Competition Policy Tags & Topics

“The Apple of Discord” is a reference to a famous episode in Greek mythology, i.e. the so-called Judgement of Paris. It is an interesting account of how a Golden Apple spurred a fight among three goddesses to establish which one of them should be declared the most beautiful, and of how this quarrel eventually led to the outbreak of the Trojan War.

One of the heaviest criticisms to the decision is perhaps that of Neelie Kroes, former EU commissioner for competition from 2004 to 2010 and commissioner for digital agenda from 2010 to 2014. Kroes argues that State Aid is not the right tool to deal with tax avoidance or to rewrite tax laws that Member States have the sovereign right to design. The state aid investigations into tax rulings appear to do exactly that, by suggesting a radical new approach to so-called transfer-pricing rules that determine where profits shall be allocated. Kroes argues that by doing this, Commission risks undermining the important work carried out within the OECD through its “Base Erosion and Profit Shifting” (BEPS) project.

Kroes makes also another important point, related to the inherently different degree of retroactivity that tax policy and state aid policy have. Contrary to tax law – which rests on the principle that changes will not apply retroactively – State aid rules allow the Commission to order the retroactive recovery of any illegal state aid, as far as 10 years back in time. This state aid investigation risks blurring the line and introducing uncertainty about corporate taxation.

Edward Kleinbard writing on the FT disagrees. He says the argument that the Commission is transcending its competences and acting like a “supranational tax bully” is false. The heart of the case is simply that Ireland gave Apple hidden subsidies in exchange for jobs. The only tax connection is that Ireland harnessed its tax system as the instrument to deliver these subsidies. What makes this a state aid case rather than a tax one is that there is no plausible explanation for Ireland ceding its tax authority other than its understanding that jobs would follow.

Massimiliano Trovato and Alberto Mingardi, from the Italian IBL Institute, argue on Politico that Ireland has a right to appeal the Commission’s decision, which is an attempt to forbid smaller jurisdictions from using more attractive tax regimes to compete for foreign investment with larger rivals. In stepping into tax issue by means of competition policy, the Commission has not only blurred the boundaries of its mandate, but also contradicted the rationale for its own competition policy. Trovato and Mingardi argue that the Commission appears to have forgotten about the consumers it is supposed to be helping: it is hard to contend that higher taxes would have prompted Apple to charge cheaper prices or produce better, newer products. Apple was also not the only beneficiary of such taxation arrangements, which weakens the argument that the company benefited unfairly from preferential treatment.

Brian M. Lucey says that Apple highlights the broader issue of Ireland’s over reliance on (tax driven)  FDI, and that the time has come for a rethink of this model. He argues that FDI should not be considered the only game in town. Estimates suggest that there are approximately 180,000 FDI-supported direct jobs, which is less than 10% of total employment. It is unclear what the employment multiplier is, through direct and indirect linkages. Lucey quotes data from the IDA and from the Department of Finance which would locate the multiplier between 1.7 and 3. This is not abnormally big compared to other sectors.

Lucey says this should be taken as evidence that while FDI is an important jobs engine, it is not clear nor obvious that it is the best or even the largest one for Ireland. FDI played a large part in the catch-up to European income levels, but it is not clear that it is wholly responsible for that either.

Taking the money would show the world that the Irish government is confident and has the best interests of the population at heart. Not doing so suggests a government in thrall to its own interpretation of an outdated policy. The IDA should continue to seek worthwhile real, as opposed to financial, investment, shifting the emphasis towards the development of a strong, indigenous, technically advanced domestic industrial and services base.

Seamus Coffey has a couple of posts on the Apple ruling. He explains that the Commission has the arithmetic behind the 13€ billion right, but that this does not imply the logic is right, and promises a more detailed assessment of the legal arguments used to justify the claim that the entire profit of Apple Sales International (ASI) should be considered taxable in Ireland.

Seamus Coffey also says that tax campaigners should be aghast at the Apple tax ruling, because it effectively suggests to companies that want to have their profits taxed at low rate in Ireland, that there is an effective way to achieve this. Companies all over the world could set up a central subsidiary that hoovers up as much of their profit as possible (within the confines of transfer pricing regulations). This subsidiary would maintain its board of directors in the home country but sets up a branch in Ireland that has the subsidiary’s only employees. As long as this is the only “operating capacity” of the subsidiary then the EC ruling implies that all of the profits will be allocated to the Irish branch and taxed in Ireland. Coffey argues that this would lead to huge profit shifting (particularly from companies headquartered in countries with territorial systems) and significant exploitation of Ireland’s 12.5 per cent Corporation Tax rate. The home countries to these companies would say to Ireland to look at the branch operating there and collect tax based on the risks, functions and assets in the branch and leave the residual profit with the “head office” for the home country to tax. But this would put Ireland in contradiction to the EC ruling, which essentially opens the possibility of Ireland becoming a tax haven of grand proportions.

Aidan Regan at The Irish Economy writes that the European Commission have sparked a revolution against corporate tax avoidance. Regan argues that globalization has made it much easier for footloose capital and international firms to move across borders, and avoid paying tax. This means it’s increasingly difficult to apply the principle that tax should be paid in the country where profits are made. It is a massive collective action problem that requires an assertive Commission, willing to confront rogue member-states, challenge capital interests, and be open to legal challenge. The EU Commission has therefore acted in the general interest of European citizens and business, and shown that it can act as a supranational counterweight to the untrammelled forces of globalization.

Sebastian Dullien at Social Europe says the Apple bill is not protectionism, as others have been arguing. Apple has used a complicated tax structure that takes advantage of idiosyncratic characteristics of the US and Irish tax systems, which leaves parts of their profits basically untaxed in either jurisdiction. Closing this loophole and clawing pack unpaid taxes is not specifically aimed at hurting US companies. Moreover, it is not clear which domestic competitor might be protected: In Apple’s line of business, there simply is no European supplier.

Sebastian Dullien also argues that Apple might have had ‘legitimate expectations’ that its tax engineering was legal (after receiving assurances from the Irish government about the legality of its tax structure), but legitimate expectations have a limit. If a structure was chosen under which the company paid less than one percent in effective taxes on their profits while statutory rates (which are paid by most European companies) run in the double digits, Apple managers should have known that something was wrong. For Dullien, this case demonstrates that international conflicts are inevitable whenever governments challenge the excesses of multinational corporations, as any of these attempts will impact on other countries. It is an illusion to drive forward the international trade in goods, services, capital and intellectual property without also integrating the structures overseeing, regulating and taxing multinationals.


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