EU Commission vs Ireland Apple tax case judgment

Chips Lovell · 16-07-2020 8:13am #1

The much anticipated judgement from the EU General Court arrived yesterday and, while most observers seemed to think it could either way, the ruling came down squarely on the side of Ireland.

As Cliff Taylor in the Irish Times today pointed out, the court ruled against both planks of the Commission's case:

This is a big blow for the European Commission. The court threw out not only its argument that Ireland offered illegal state aid to Apple, but also a subsidiary argument that the tax rulings from the Irish Revenue Commissioners made methodological errors.

This throws up an interesting question, namely is this the end of this saga? Whatever way the ruling went, I think most people may have expected it to be appealed to the ECJ. But after such a comprehensive defeat, is the Commission going to bother appealing? It seems that the thrust of the judgement was less about interpretation of points of law and more that the Commission hadn't successfully made a case.

As the FT highlighted this morning, this is the second time in two years the Commission has had state aid rulings shot down, after a similar judgement involving the Netherlands and Starbucks:

As with the Starbucks case, legal experts warned that the EU would struggle to win an appeal on the points of law, since the commission largely lost the case on not being able to meet the burden of proof.

At this stage, you'd have to question the approach of EU competition commissioner Margrethe Vestager in dealing with these issues.

Having said all that, while this battle could be over, it looks like another front is going to be opened up:

Among proposals is a plan to use a never-before triggered clause in EU treaty law – known as article 116 – that would allow the commission to act against member states whose tax policies are deemed to be distorting competition in the single market. Such a move would require only a qualified majority of EU member states and backing from European Parliament, and get around normal national vetoes on tax matters.

Retr0gamer · 16-07-2020 12:43pm

Isn't the fact that our taxation is protected constitutionally the big factor shooting these attempts by the EU? They can try to change are taxation but that would require going against our constitution which the EU can't touch?

VinLieger · 16-07-2020 2:27pm

The commission really need to reign themselves in after the last 2 days they've had. Going down the article 116 route after badly losing 2 cases in 2 days would not do the EU as a whole any good at all.

That kind of draconian reaction might very well push the Netherlands towards their own exit referendum. I don't believe it would trigger something of that level here but it would definitely severely reduce the high levels of pro EU polling we regularly see and start a slippery slope towards the potential for one eventually.

Peregrinus · 17-07-2020 3:00am

Retr0gamer wrote: »

Isn't the fact that our taxation is protected constitutionally the big factor shooting these attempts by the EU? They can try to change are taxation but that would require going against our constitution which the EU can't touch?

Even the Constitution gives way to the EU treaties; the Constitution itself says so. The reason the Commission (NB: not the EU; the Commission) lost here is not because of anything the Constitution says about tax but because of what the EU Treaties say.

Essentially, the Commission was attempting to regulate a member state's tax policy through the powers the Treaties give it to regulate state aid. The Court regards this an an overreach; if you want to regulate tax policy, you have to find powers in the Treaties that allow you to do that, and the state aid power doesn't.

As Chips suggests, the focus may now shift to the Art 116 power. The problem for the Commission is that Art 116 depends on the initiative being taken not by the Commission but by the Council. The Commission can suggest it to the Council; that's all.

Chips Lovell · 17-07-2020 7:46am

VinLieger wrote: »

The commission really need to reign themselves in after the last 2 days they've had. Going down the article 116 route after badly losing 2 cases in 2 days would not do the EU as a whole any good at all.

That kind of draconian reaction might very well push the Netherlands towards their own exit referendum. I don't believe it would trigger something of that level here but it would definitely severely reduce the high levels of pro EU polling we regularly see and start a slippery slope towards the potential for one eventually.

As Peregrinus says, it's the Council rather than the Commission who can decide to go down the Article 116 route

As for the Dutch, they aren't going anywhere. Despite their hardline reputation on financial matters, support for EU membership remains incredibly high, far higher than the likes of Italy in fact.

If Article 116 happens, the Dutch will do what the Irish will do, form a bloc big enough enough to steer things a little more in a direction of their own liking.

paul71 · 18-07-2020 12:24pm

Chips Lovell wrote: »

As Peregrinus says, it's the Council rather than the Commission who can decide to go down the Article 116 route

As for the Dutch, they aren't going anywhere. Despite their hardline reputation on financial matters, support for EU membership remains incredibly high, far higher than the likes of Italy in fact.

If Article 116 happens, the Dutch will do what the Irish will do, form a bloc big enough enough to steer things a little more in a direction of their own liking.

The council is Qualified majority and some people have missed one of the biggest implications of Brexit, the fact that the UK and Ireland were pretty much always of a single mind. We do need new allies and the Dutch will probably be one. I think the qualified majority works in 2 ways, 1 being a certain % of countries, the second being a lower majority of countries but a higher proportion of the total population of the EU those countries the EU represents.

Infini · 19-07-2020 5:46pm

Think the real mistake the commission made is that they're basing their cases as if the Irish Authorities were deliberately helping Apple dodge taxes when they weren't. In part by making such an accusation they end up forcing Ireland to join up with Apple as they have to defend the integrity of the tax system.

Pretty much all of us know the root problem's of this whole debate is Creative Corporate Accounting that uses various loophole's in different juristictions to reduce tax liabilities. It's partially why Ireland is opposed to levying reactive solutions like Digital Taxes as the likely concern is that it'll just end up being the same merry-go-round routine where the pretax profits get washed through some other tax loophole and we end up with the problem shifting somewhere else or the corporations are able to react quicker and move their profits out of reach of authorities before they can implement such measures.

Geuze · 19-07-2020 11:26pm

Infini wrote: »

Pretty much all of us know the root problem's of this whole debate is Creative Corporate Accounting that uses various loophole's in different juristictions to reduce tax liabilities. It's partially why Ireland is opposed to levying reactive solutions like Digital Taxes as the likely concern is that it'll just end up being the same merry-go-round routine where the pretax profits get washed through some other tax loophole and we end up with the problem shifting somewhere else or the corporations are able to react quicker and move their profits out of reach of authorities before they can implement such measures.

AFAIK, this did not reduce tax liabilities.

It merely deferred them.

The tax was always to be paid to the USA Govt.

[Deleted User] · 23-07-2020 7:05pm

Infini wrote: »

Think the real mistake the commission made is that they're basing their cases as if the Irish Authorities were deliberately helping Apple dodge taxes when they weren't. In part by making such an accusation they end up forcing Ireland to join up with Apple as they have to defend the integrity of the tax system.

Pretty much all of us know the root problem's of this whole debate is Creative Corporate Accounting that uses various loophole's in different juristictions to reduce tax liabilities. It's partially why Ireland is opposed to levying reactive solutions like Digital Taxes as the likely concern is that it'll just end up being the same merry-go-round routine where the pretax profits get washed through some other tax loophole and we end up with the problem shifting somewhere else or the corporations are able to react quicker and move their profits out of reach of authorities before they can implement such measures.

My understanding is that they were helping Apple to avoid paying tax and this wasn’t in doubt. The argument was that it was not offered to all companies and was therefore akin to state aid.

blackwhite · 24-07-2020 1:17pm

Aegir wrote: »

My understanding is that they were helping Apple to avoid paying tax and this wasn’t in doubt. The argument was that it was not offered to all companies and was therefore akin to state aid.

The Irish Government weren't "helping" Apple do anything with regard to taxes.

Apple (guided by their own legal and tax advisors) structured their companies in a particular way, and asked Revenue to give a judgement as to how that structure would be taxed under Irish tax legislation (just as any other company is free to ask).

Revenue issued a judgement based on Irish law, and then levied Irish taxes in line with that judgement. The same as they will do for any company that requested a judgement on their company tax structures.

Sam Russell · 24-07-2020 1:39pm

blackwhite wrote: »

The Irish Government weren't "helping" Apple do anything with regard to taxes.

Apple (guided by their own legal and tax advisors) structured their companies in a particular way, and asked Revenue to give a judgement as to how that structure would be taxed under Irish tax legislation (just as any other company is free to ask).

Revenue issued a judgement based on Irish law, and then levied Irish taxes in line with that judgement. The same as they will do for any company that requested a judgement on their company tax structures.

Which was the judgement of the EU court. Nothing to see here.

blackwhite · 24-07-2020 2:23pm

Sam Russell wrote: »

Which was the judgement of the EU court. Nothing to see here.

Exactly - and yet we still get people trying to push the narrative that the Government or Revenue were involved in helping set up these structures.

[Deleted User] · 24-07-2020 6:10pm

blackwhite wrote: »

Exactly - and yet we still get people trying to push the narrative that the Government or Revenue were involved in helping set up these structures.

Of course not. The fact that the 2014 finance act created a massive loop hole for billions in tax to disappear through was a complete accident.

Nothing to see here.

Robert McGrath · 24-07-2020 11:24pm

Aegir wrote: »

Of course not. The fact that the 2014 finance act created a massive loop hole for billions in tax to disappear through was a complete accident.

Nothing to see here.

You’re going to have to explain that. I don’t think that’s true. What’s the loophole created in the 2014 Finance Act?

blackwhite · 24-07-2020 11:55pm

Aegir wrote: »

Of course not. The fact that the 2014 finance act created a massive loop hole for billions in tax to disappear through was a complete accident.

Nothing to see here.

I’d be interested to hear how the 2014 Finance Act assisted Apple between 2004-2014, which is the period the EU’s failed charges related to?

[Deleted User] · 25-07-2020 10:19am

blackwhite wrote: »

I’d be interested to hear how the 2014 Finance Act assisted Apple between 2004-2014, which is the period the EU’s failed charges related to?

It’s what the government does. It creates loopholes specifically for the multinationals to exploit.

They close one to comply with OECD guidelines and open another up.

Sam Russell · 25-07-2020 11:04am

Aegir wrote: »

It’s what the government does. It creates loopholes specifically for the multinationals to exploit.

They close one to comply with OECD guidelines and open another up.

Whatever they did, the Corporation Tax revenue has greatly increased. So much so, there is concern it is distorting our fiscal performance such that if CT were to disappear, we would be in serious trouble.

So which loopholes are you talking about?

[Deleted User] · 25-07-2020 11:19am

Sam Russell wrote: »

Whatever they did, the Corporation Tax revenue has greatly increased. So much so, there is concern it is distorting our fiscal performance such that if CT were to disappear, we would be in serious trouble.

So which loopholes are you talking about?

Do you mean Corporation Tax, or GDP?

Ireland’s GDP has gone through the roof, thanks to schemes like the Dutch Irish sandwich, the double Irish and the Green Jersey.

relax carry on · 25-07-2020 11:34am

Aegir wrote: »

Of course not. The fact that the 2014 finance act created a massive loop hole for billions in tax to disappear through was a complete accident.

Nothing to see here.

What tax loophole specifically did the 2014 Finance Act create? And considering our CT tax receipts have increased quite a bit since 2014, could you expand on what exactly the loophole does?

Sam Russell · 25-07-2020 12:03pm

Aegir wrote: »

Do you mean Corporation Tax, or GDP?

Ireland’s GDP has gone through the roof, thanks to schemes like the Dutch Irish sandwich, the double Irish and the Green Jersey.

Corporation Tax receipts have gone through the roof - particularly from a few multinationals.

The GDP is irrelevant.

[Deleted User] · 25-07-2020 1:18pm

Sam Russell wrote: »

Corporation Tax receipts have gone through the roof - particularly from a few multinationals.

The GDP is irrelevant.

Yes, but a massive rise in Irish tax receipts doesn’t mean those corporations aren’t avoiding paying far higher taxes elsewhere. They will still have to pay some tax in Ireland, but could well be avoiding paying taxes in Germany.

If you look up Round Island One for example, you will find examples of how Microsoft uses this Irish company (one of the biggest and most profitable companies in Ireland, yet has no employees) to do just this.

Sam Russell · 25-07-2020 1:29pm

Aegir wrote: »

Yes, but a massive rise in Irish tax receipts doesn’t mean those corporations aren’t avoiding paying far higher taxes elsewhere. They will still have to pay some tax in Ireland, but could well be avoiding paying taxes in Germany.

If you look up Round Island One for example, you will find examples of how Microsoft uses this Irish company (one of the biggest and most profitable companies in Ireland, yet has no employees) to do just this.

American companies are liable for American tax on their worldwide profits when those profits are repatriated to America. By using these tax avoidance measures they are delaying paying these taxes - perhaps for ever.

The idea that taxes are due, say to Germany, is nonsense. If taxes were due to such countries they would collect them. German, and other countries, corporations avoid taxes too.

I am sure that you as an individual, like most of us, would take account of all tax breaks open to you when you file your tax returns.

[Deleted User] · 25-07-2020 1:58pm

Sam Russell wrote: »

American companies are liable for American tax on their worldwide profits when those profits are repatriated to America. By using these tax avoidance measures they are delaying paying these taxes - perhaps for ever.

The idea that taxes are due, say to Germany, is nonsense. If taxes were due to such countries they would collect them. German, and other countries, corporations avoid taxes too.

I am sure that you as an individual, like most of us, would take account of all tax breaks open to you when you file your tax returns.

That was why Ireland wouldn’t have kept all €13bn if the Eu commission won the case, because those taxes weren’t on Irish profits, they were profits made elsewhere in Europe. They all pay the appropriate 12% tax on Irish profits, but in comparison to what they make elsewhere, it is relatively minor.

This is what the Eu and in particular France are pissed off about, hence the proposed digital tax.

Have you never wondered why the products we buy from Amazon in the UK are actually sold by Amazon s.a.r.l.?

Sam Russell · 25-07-2020 2:10pm

Aegir wrote: »

That was why Ireland wouldn’t have kept all €13bn if the Eu commission won the case, because those taxes weren’t on Irish profits, they were profits made elsewhere in Europe. They all pay the appropriate 12% tax on Irish profits, but in comparison to what they make elsewhere, it is relatively minor.

This is what the Eu and in particular France are pissed off about, hence the proposed digital tax.

Have you never wondered why the products we buy from Amazon in the UK are actually sold by Amazon s.a.r.l.?

The EU court rejected the claims made by the Commission.

The idea that other EU countries could claim tax due to Ireland was nonsense and that was upheld by the court. The EU has no competence of taxation, only state aid. If taxation was due in those countries, they would get it through their own laws - they collect VAT on sales as it is.

If that was so, could we claim taxation on the share of profits made by VW and Mercedes, paid in Germany, but made on the cars sold here?

A better issue to follow is the application of Intellectual Property as a tax avoidance measure. That is much more fertile ground to plough.

Wanderer78 · 25-07-2020 2:33pm

theres clearly something fundamental going wrong in relation to wealth accumulation and its lack of redistribution globally, and large corporations are playing a critical role in this, we cant keep playing this game, it will more than likely cause further destabilization of our most critical of needs. i accept mnc's have played a critical role in advancing our society and economy, and still do, but its clearly obvious, these plutocratic elements in society, are not very well designed to redistribute this wealth, maximizing share holder value is slowly failing, globally. i think redistributing share ownership is probably the best way to try solve this, this can be done both internally and externally for all of the large corporations operating here, if the will was there. i fear our political and legal systems and institutions are defaulting in relation to these issues, which is leading us further down a potentially dangerous road, without truly resolving these issues.

blackwhite · 25-07-2020 2:57pm

Aegir wrote: »

It’s what the government does. It creates loopholes specifically for the multinationals to exploit.

They close one to comply with OECD guidelines and open another up.

Again - how did the 2014 Finance Act - enacted in late 2014 - help Apple avoid taxes between 2004-2014?

blackwhite · 25-07-2020 3:00pm

Aegir wrote: »

That was why Ireland wouldn’t have kept all €13bn if the Eu commission won the case, because those taxes weren’t on Irish profits, they were profits made elsewhere in Europe. They all pay the appropriate 12% tax on Irish profits, but in comparison to what they make elsewhere, it is relatively minor.

This is what the Eu and in particular France are pissed off about, hence the proposed digital tax.

Have you never wondered why the products we buy from Amazon in the UK are actually sold by Amazon s.a.r.l.?

Are you now trying to argue that if an Irish craft distillery sells products through their website to someone in the UK, then they should pay UK corporation tax on the profit from that sale?

That’s the logical basis that France have been trying to argue in favour of

CrabRevolution · 25-07-2020 3:21pm

blackwhite wrote: »

Again - how did the 2014 Finance Act - enacted in late 2014 - help Apple avoid taxes between 2004-2014?

I notice how he has answered questions asked both before and after yours, but conspicuously avoided answering this one!

Sam Russell · 25-07-2020 4:04pm

blackwhite wrote: »

Are you now trying to argue that if an Irish craft distillery sells products through their website to someone in the UK, then they should pay UK corporation tax on the profit from that sale?

That’s the logical basis that France have been trying to argue in favour of

France have a history of this.

They used to insist video recorders imported into France could only come through a single entry customs post to delay them all (on the Swiss border, I believe). (This was before the single market).

This was to protect the French company Thomson who made an inferior recorder. [Thomson 'invented' the SCART connector - another inferior product].

They are protectionist supremos.

Wanderer78 · 25-07-2020 4:05pm

Sam Russell wrote: »

France have a history of this.

They used to insist video recorders imported into France could only come through a single entry customs post to delay them all (on the Swiss border, I believe). (This was before the single market).

This was to protect the French company Thomson who made an inferior recorder. [Thomson 'invented' the SCART connector - another inferior product].

They are protectionist supremos.

protectionism is a fundamental element of the so called free market

Sam Russell · 25-07-2020 4:09pm

Wanderer78 wrote: »

protectionism is a fundamental element of the so called free market

But not the single market.

EU Commission vs Ireland Apple tax case judgment

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