Double Irish arrangement

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International Financial Services Centre ("IFSC") centre of US multinational tax planning in Ireland
Finance Minister Michael Noonan closed the Double Irish to new schemes in October 2014 (existing schemes to close in 2020), and expanded the Capital Allowances for Intangibles scheme as a replacement

Double Irish arrangement is a tax scheme used by some U.S. corporations in Ireland (including Apple,[1][2][3][4] Google[5][6] and Facebook[7][8][9] amongst others[10]),[11] to shield non-U.S. income from the pre Tax Cuts and Jobs Act of 2017 (TCJA) U.S. worldwide 35% tax system,[12][13] and almost all Irish taxes.[14] As the conduit by which U.S. corporations built up offshore reserves of approximately $1trn,[15][16] the double Irish is the largest corporate tax avoidance structure in modern history.[17]

Feargal O'Rourke of the IFSC and a partner in PwC (son of Minister Mary O'Rourke, cousin of the 2008-2011 Irish Finance Minister Brian Lenihan Jnr) is regarded as its "grand architect".[18][19][20][21] Alongside other Irish multinational tax tools, it has contributed to Ireland's rise to the top in many global lists of corporate tax havens.[22][23]

In the double Irish, one Irish subsidiary (IRL1) sells Intellectual Property-based products globally via royalty schemes (known as IP-based BEPS tools). The other Irish subsidiary (IRL2) is also incorporated in Ireland, but "managed" from a tax haven like Bermuda. The Irish tax code considers IRL2 a Bermuda company, but the U.S. tax code considers IRL2 an Irish company. Neither taxes it. A further Dutch sandwich avoids Irish withholding tax on moving money from IRL1 to IRL2. A Bermuda company (BER1), or Bermuda black hole, will often own IRL2.[24]

Using the double Irish requires intellectual property ("IP").[25][26] This limits use to technology, pharmaceutical, medical device and industrials with patents. In addition, non-U.S. firms tend to have territorial tax systems in their home country and do not need Irish tax structuring. This is why 14 of Ireland's top 20 firms are U.S. IP-heavy multinationals,[27] and why there are no non-US/non-UK foreign multinationals in Ireland's top 50 firms (by revenue).[27] U.S. IP-heavy multinationals now employ a quarter of Ireland's private sector workforce,[28] pay 80% of Irish business tax,[29] pay 50% of Irish salary tax and VAT,[30] and create 57% of economic value-add.[28]

In 2015, after EU pressure,[31] the Irish Government closed the double Irish, preventing an Irish company to be tax resident elsewhere. Existing schemes could continue to 2020.[32] Despite this, U.S. corporate activity in Ireland increased,[33] and Ireland became the most popular location for U.S. corporate tax inversions.[34]

It has emerged that new Irish BEPS tools, with corporate effective tax rates (ETRs) of 0-3%, had been developed before the closure of the double Irish:[35]

  1. Single malt arrangement leverages specific wording in some Irish tax treaties that can replicate the double Irish (IRL2 is re-located to Malta or the UAE).[36][37] Thus the same <1% ETRs of the double Irish can be achieved. Single malt has been confirmed in use by Microsoft and Allergan in Ireland.[33][38]
  2. Capital allowances for intangibles arrangement allows a broad range of internal intangible assets to be acquired by an Irish subsidiary, and the acquisition written off against Irish tax (a quasi-tax inversion).[39] Apple restructured its double Irish into a capital allowances scheme (leprechaun economics).[40][41]

The U.S. move to a territorial tax system with the TCJA may materially affect the use of these Irish tax schemes by U.S. multinationals.[42][43][44][45] The UK's similar changes in 2009-12 effectively stopped UK multinational use of Irish tax schemes.[46][47] The TCJA's FDII and GILTI "carrot and stick" tax regimes[48] makes U.S. effective tax rates very similar to Irish effective tax rates (even net of Irish tax schemes), for IP-heavy U.S. multinationals (11-12%).[49][50] If the U.S. multinational cannot avail of any Irish BEPS scheme (i.e. single malt via Malta), and pays the full Irish 12.5% headline rate, then the net effective rate of over 14% makes Ireland unattractive from a tax perspective, versus relocating to the U.S, and availing of FDII.[51] However, other technical issues (i.e. the EU's GDPR for Facebook[52][53], or Apple's pre-2020 clawbacks on its massive Irish capital allowances for intangible assets scheme[54]) could influence the direction and timing of ultimate outcomes.

Explanation of double Irish[edit]

U.S. corporations with intellectual property ("IP") can turn this into an intangible asset ("IA") and charge it out as a royalty payment.[26][25] Royalty payments have been described as the raw material[55] of global tax planning as they move profit streams between jurisdictions. The technical term for such use of IP is base erosion and profit shifting, or BEPS, which the OECD has been trying unsuccessfully to curtail (see IP-based BEPS tools). Corporations without large amounts of IP (which can be recorded as an IA on their balance sheet under GAAP rules), struggle to use these BEPS tax schemes.

The double Irish arrangement, in its simplified form, takes the following royalty payment structure (shown in reverse-order in the graphic):[24][14][56]

  1. A US corporate (CORP) develops new software in the US costing $1 to build;
  2. CORP sells it to its wholly owned Bermuda company (BER1) for $1 (at cost, ideally);
  3. BER1 revalues it to $100 (as an IA under GAAP), and books gain in Bermuda (tax-free);
  4. BER1 licenses it to its wholly owned Irish subsidiary (IRL1) for $100;
  5. IRL1 then sells it in Germany to a customer for $100;
  6. IRL1 uses the $100 from Germany to pay the $100 royalty to BER1 (no profit in Ireland);
  7. BER1 holds the $100 cash in perpetuity, thus avoiding US 35% tax;
  8. BER1 lends the $100 cash back to CORP (and other subsidiaries).
Double Irish with a Dutch Sandwich:
  1. German customer pays $100 for online ad.
  2. The $100 is sent to booking base in Ireland, IRL1 (leases the IP from IRL2).
  3. No tax paid in Ireland as IRL1 pays a $100 royalty to a Dutch subsidiary (DUT1), for which it gets an Irish tax deduction.
  4. DUT1 pays the $100 to another subsidiary in Ireland (IRL2), with no withholding tax on inter-EU transactions.
  5. IRL2, although incorporated in Ireland, pays no Irish tax because it is controlled from a tax haven.
  6. IRL2, pays no US tax because it is incorporated in Ireland and linked to IRL1 (a "check-the-box" foreign company).
  7. IRL2 is owned by a company in Bermuda, BER1 (who bought the IP from the US parent, and then revalued it higher).
  8. IRL2, licenses its IP from BER1, and therefore pays BER1 the $100, who builds up the cash reserves.

This structure has a problem. The pre-TCJA tax code allows foreign income to be left in foreign subsidiaries (deferring US taxes), but it will consider BER1 to be a controlled foreign corporation (or "CFC"), sheltering income from a related party transaction (i.e. IRL1). It will apply full US taxes to BER1 at 35%.

To get around this, the US corporation needs to create a second Irish company (IRL2), legally incorporated in Ireland (so under the US tax code it is Irish), but which is "managed and controlled" from Bermuda (so under the Irish tax code it is from Bermuda). IRL2 will be placed between BER1 and IRL1 (i.e. owned by BER1, and owning IRL1). Up until the 2015 shut-down of the double Irish, the Irish tax code was one of the few that allowed a company be legally incorporated in its jurisdiction, but not be subject to its taxes (if managed and controlled elsewhere).

The US corporation will "check-the-box" for IRL1 as it is clearly a foreign subsidiary selling to non-US locations. The US tax code will rightly ignore IRL1 from US tax calculations. However, because the US tax code also views IRL2 as foreign (i.e. Irish), it also ignores the transactions between IRL1 and IRL2 (even though they are related parties). This is the essence of the double Irish arrangement.[32]

Note that in some explanations and diagrams BER1 is omitted (the Bermuda black hole however, it is rare for a US corporation to "own" IRL2 directly).

Dutch sandwich requirement[edit]

The Irish tax code levies a 20% withholding tax on transfers from an Irish company like IRL1, to companies in tax havens like BER1.[57]

However, if IRL1 sends the money to a new Dutch company DUT1, via another royalty payment scheme, no Irish withholding tax is payable as Ireland does not levy withholding tax on transfers within EU states. In addition, under the Dutch tax code DUT1 can send money to IRL2 under another royalty scheme without incurring Dutch withholding tax, as the Dutch do not charge withholding tax on royalty payment schemes.[24][58]

This is called the dutch sandwich and DUT1 is described as the "dutch slice" (sitting between IRL1 and IRL2).[59][60]

Thus, with the addition of IRL2 and DUT1, we have the "double Irish dutch sandwich" tax structure.[5]

In 2010, the Irish Government, on lobbying from PwC's Feargal O'Rourke,[20] relaxed the rules for making royalty payments to non-EU countries without incurring Irish withholding tax (effectively ending the dutch sandwich), but they are subject to conditions that will not suit all double Irish arrangements.[61][62][63]

O'Rourke set out to simplify those structures, eliminating the need for a Dutch intermediary. In October 2007, he met at Google's Dublin headquarters on Barrow Street with Tadhg O'Connell, the head of the Revenue division that audits tech companies. O'Connell is understood to have rejected O'Rourke's request that royalties like Google's should be able to flow directly to units in Bermuda and Cayman without being taxed. In 2008, O'Rourke's cousin Brian Lenihan became finance minister, setting much of the Revenue's policy. Two years later, after continued entreaties by O'Rourke, the Revenue's office announced that it would no longer impose withholding taxes on such transactions.

— Jesse Drucker, Bloomberg, "Man Making Ireland Tax Avoidance Hub Proves Local Hero", 28 October 2013[18][20]

Closure of double Irish[edit]

In 2010, the Obama administration was said to propose to tax excessive profits of offshore subsidiaries to curb tax avoidance in the United States.[64] A 2010 Irish law brought Irish transfer pricing rules into line with most of its trading partners requiring companies' intra-group transfer prices to be similar to those that would be charged to (or from) independent entities. The first deadline for corporate tax submissions under the new rules was September 2012. However, companies such as Google, Oracle and FedEx are declaring fewer of their ongoing offshore subsidiaries in their public financial filings, which has the effect of reducing visibility of entities declared in known tax havens.[65]

In 2014, the Irish government announced that companies would no longer be able to incorporate in Ireland without also being tax resident there, a measure intended to counter arrangements similar to the double Irish. Irish Finance Minister Michael Noonan addressed the "Double Irish" during the presentation of his 2015 budget. Under the new rules, companies not already operating in the country may not pursue the "Double Irish" scheme as of 1 January 2015; and those already engaging in the tax avoidance scheme have a five-year window until the end of 2020 to find another arrangement.[66]

Under Finance Act 2015, a new system has been introduced whereby innovative companies who choose to incorporate in Ireland can now benefit from the introduction of the Knowledge Development Box (the "KDB") in Ireland, the scheme is seen as a replacement for the "double-Irish" tax system which was recently closed. An effective tax rate of 6.25% can be obtained on qualifying profits generated in periods commencing on or after 1 January 2016.

In summer of 2016, another dispute flared up between the European Commission and the US Treasury Department over Irish tax breaks, which in the EU may comprise a type of state aid.[67] U.S. Secretary of the Treasury Jacob J. Lew issued a white paper referring to transfer pricing.[68] Separately EU Competition Commissioner Vestager was quoted by the press as clarifying that: "This is not about transfer pricing, it is about allocation of profits so it is different to the decisions on Starbucks and Fiat." [69]

Apple's hybrid double Irish[edit]

EU Commission's outline of Apple's double Irish tax structure in Ireland
Margrethe Vestager, announcing Apple's €13bn fine for 2004-2014 "double Irish" backtaxes

Apple is Ireland's largest company,[27] and represents a material proportion of Ireland's economy.[70][71] Apple is one of the longest users of the double Irish tax scheme to achieve tax rates <1%, even as far back as 2004,[2] and as investigated by the US Senate in May 2013,[72][3] and covered in the main financial media.[73][4]

On 30 August 2016 the EU's competition commissioner concluded that Apple had received illegal State aid from Ireland. The Commission ordered Apple to pay €13 billion, plus interest, in unpaid Irish taxes for the ten year period, 2004-2014.[74] Both the Irish government and Apple are appealing the Commission's action.[75][76]

Apple was not using the standard double Irish arrangement of two Irish companies (IRL1 in Ireland, and IRL2 in Bermuda). Instead, Apple combined the functions of the two companies inside one Irish company (namely, Apple Sales International, or ASI), which was split into two internal "branches".[77] The Irish Revenue Commissioners' acceptance of Apple's branch structure, is what the EU Commission is challenging as illegal State aid, as no other multinational was given this ruling.[78] The EU Commission has not taken cases against multinationals using the standard double Irish arrangement (e.g. Google, Facebook)[7][79] to date.

The Apple affair took another twist when Apple restructured Apple Sales International, as agreed with the EU Commission to cap post-2014 liability, in January 2015.[80]

It was shown in 2018 that this January 2015 restructuring was the driver of the 2015 Irish leprechaun economics GDP growth. Demonstrating this, additionally highlighted that Apple had used the expanded Irish capital allowances for intangible assets arrangement to re-structure its Irish subsidiaries in January 2015, which in itself could be subject to further EU Commission challenge as it cannot be used for explicit tax avoidance, and fines of a similar magnitude to the €13bn figure could ensue (see further potential Apple litigation).

The EU Commission is currently investigating Apple's post January 2015 Irish structure.[81]

Replacement by single malt[edit]

Finance Minister Paschal Donohoe reversed some of the benefits ex Finance Minister Michael Noonan gave the Capital Allowances for Intangibles Assets scheme, and promised to investigate the Single Malt scheme

In 2014, as the Irish Government closed the "double Irish" arrangement, the influential US National Tax Journal published an article by Jeffrey L Rubinger and Summer Lepree, showing that Irish based subsidiaries of US corporations could replace the double Irish arrangement with a new structure (now known as single malt).[82]

If the Bermuda-controlled Irish company (IRL2) could be relocated to a country with whom (a) Ireland has a tax treaty, (b) with wording on "management and control" tax residency rules, and (c) had a zero corporate tax rate, then the double Irish effect could be replicated. They highlighted Malta as a candidate.[82]

The mainstream Irish media picked up this Rubinger and Lepree article at the time it was written.[83]

A 2017 report by Christian Aid titled "Impossible Structures",[33] outlined how popular single malt BEPS tool has become. The report details money-flow diagrams, Microsoft's and Allergen's schemes and extracts from advisers to their clients.[83] The Irish Finance Minister Paschal Donohoe said that it would be investigated.[38]

Inaction since the single malt structure was noted in 2014, raised questions regarding the Irish Government's stated policy of addressing corporate tax avoidance.[84]

In this regard, the Christian Aid report noted that the single malt IP-based BEPS tool would have been largely neutralised had the Irish Government not deliberately opted out of Article 12 (Disclosure of Aggressive Tax Planning) when signing the new OECD Multilateral Convention in July 2017 (which came from the base erosion and profit shifting (OECD project)).[85]

Despite the closure of the double Irish, and the OECD Multilateral Convention, the Christian Aid report notes that:

Figures released in April 2017 show that since 2015 there has been a dramatic increase in companies using Ireland as a low-tax or no-tax jurisdiction for intellectual property (IP) and the income accruing to it, via a nearly 1000% increase in the uptake of a tax break expanded between 2014 and 2017.

— Christian Aid. Impossible Structures, November 2017[86]

Backstop of capital allowances[edit]

The double Irish and single malt are both royalty payment BEPS schemes where Ireland acts as a conduit to transfer profits from higher-tax locations to lower-tax locations. Ireland's third multinational BEPS scheme is called the capital allowances for intangible assets scheme, where Ireland acts as the terminus for the royalty payments. It is very similar to a corporate tax inversion of a multinational's non-US business, and with appropriate structuring, gives effective tax rates (ETRs) of 0-3%.[87][88][89]

Capital allowances for intangible assets is Ireland's long-term BEPS replacement for double Irish/single malt.[90][91] It moves Ireland from being a frictionless (i.e. no taxes) conduit ofc via double Irish/single malt, to being an ultra-low tax (i.e. 0-3%, in perpuity, with correct planning) sink ofc. It is supported by the OECD (Ireland's IP-box is the first OECD-compliant structure), and the OECD BEPS project.

During the financial crisis of 2009, the Irish Department of Finance's Tax Strategy Group, recommended material changes to the Irish capital allowances for intangible assets scheme.[92][93]

The 2009 Finance Act, materially expanded the range of intangible assets attracting Irish capital allowances[89] which are fully deductible against Irish taxable profits.[87][94][95][96] These "specified intangible assets"[97] cover more esoteric intangibles such as types of general rights, general know-how, general goodwill, and the right to use software.[98] It includes types of "internally developed" intangible assets and intangible assets purchased from "conntected parties". The control is that they must be acceptable under GAAP (older 2004 Irish GAAP is accepted), and thus auditable by an IFSC accounting firm.[95][96]

"It is hard to imagine any business, under the current [Irish] IP regime, which could not generate substantial intangible assets under Irish GAAP that would be eligible for relief under [the Irish] capital allowances [for intangible assets scheme]." "This puts the attractive 2.5% Irish IP-tax rate within reach of almost any global business that relocates to Ireland."

— KPMG, "Intellectual Property Tax", 4 December 2017[99]

As an extra incentive, the 2009 Act reduced the period over which allowances are amortised (and "clawed-back"), from 15-17 years to 10 years (reduced to 5 years in the 2012 Finance Act for schemes after 13 February 2013).[89] Thus, instead of the double Irish (or single malt) arrangement where IP assets are charged to Ireland from an offshore location (or Malta for single malt), the Irish subsidiary can now buy the IP assets, using an inter-company loan, and then write-off the IP acquisition cost over 5 years against Irish pre-tax profits, to give a 0-3% effective Irish corporate tax rate.[39][88][89][87][94]

Intellectual Property: The effective corporation tax rate can be reduced to as low as 2.5% for Irish companies whose trade involves the exploitation of intellectual property. The Irish IP regime is broad and applies to all types of IP. A generous scheme of capital allowances .... in Ireland offer significant incentives to companies who locate their activities in Ireland. A well-known global company [Accenture in 2009] recently moved the ownership and exploitation of an IP portfolio worth approximately $7 billion to Ireland.

— Arthur Cox Law Firm, Uses of Ireland for German Companies, January 2012[87][100]

Structure 1: The profits of the Irish company will typically be subject to the corporation tax rate of 12.5% if the company has the requisite level of substance to be considered trading. The tax depreciation and interest expense can reduce the effective rate of tax to a minimum of 2.5%.

— Maples and Calder Law Firm, Irish Intellectual Property Tax Regime, February 2018[39]

IP-heavy industries such as technology, pharmaceutical, and medical devices, who have "product cycles", can re-fresh their capital allowances by creating new IP with each product cycle (in an offshore location), which the Irish subsidiary will continually acquire to "top-up" its Irish capital allowances. Thus, a 0-3% Irish corporate tax rate can be maintained indefinitely.[39][88][87][89]

When Apple, Ireland's largest company,[27] restructured its double Irish subsidiaries in January 2015 (from the EU Commission ruling), it choose the Irish capital allowances schemes over a double Irish scheme (which it could have legitimately done in January 2015).[101] As a quasi-inversion, with almost $300bn of IP "onshored", Apple's scheme had a dramatic effect on Irish GDP/GNP (leprechaun economics).[40]

Section 291A of the legislation states the Irish subsidiary must be conducting a "relevant trade" on the acquired IP.[89] A "business plan" must be produced showing agreed levels of Irish employment, or "relevant activities", during the period capital allowances are claimed. If the subsidiary is wound up within 5 years (for plans after 13 February 2013), all allowances are repayable (the "clawback").[94][102][95][96]

In 2017, the Irish Government accepted the recommendation of economist Seamus Coffey (Chairman of the State's Irish Fiscal Advisory Council and consultant to the Irish Government Irish Corporate Taxation)[103][104] that the Irish capital allowances arrangement be capped at 80% for new arrangements, to give a minimum effective Irish corporate tax rate of 2.5%[105][106]

Given the dramatic take-up in the capital allowances scheme in 2015 (the leprechaun economics affair), when the cap was 100% (i.e. 0% Irish tax payable), Irish commentators questioned the merits of Coffey's recommendation. He responded in a paper (and of course, it would not be until 2018 that Coffey, and other commentators, could definitively confirm that leprechaun economics was almost all Apple).[107][108]

In 2015 there were a number of “balance-sheet relocations” with companies who had acquired IP while resident outside the country becoming Irish-resident. It is possible that companies holding IP for which capital allowances are currently being claimed could become non-resident and remove themselves from the charge to tax in Ireland. If they leave in this fashion there will be no transaction that triggers an exit tax liability.

— Seamus Coffey, "Intangibles, taxation and Ireland's contribution to the EU Budget", October 2017[107]

The Irish "capital allowances for intangible assets" arrangement thus gives an effective Irish corporation tax rate of 0 to 3%, in perpuity, depending on the cap rate at scheme start date (i.e. 80% or 100%).[39][87][88][104]. The control is finding an Irish IFSC accounting firm who will help develop (offshore), value, acquire (onshore) and audit the artificially created internal group IP.[109]

I cannot see a justification for giving full Irish tax relief to the intragroup acquisition of a virtual asset, except that it is for the purposes of facilitating corporate tax avoidance.

— Professor Jim Stewart, Trinity College Dublin, "MNE Tax Strategies in Ireland", 2016[110]

Distortion of Irish GDP/GNP[edit]

EU 2011 Ratio of GNI to GDP (Eurostat National Accounts, 2011)
Ireland: Apple's Q1 2015 restructuring. Brad Setser & Cole Frank (Council on Foreign Relations)
Ireland: Apple's Q1 2015 IP distortion of Ireland's balance of payments. Brad Setser & Cole Frank (Council on Foreign Relations)

From the mid-2000s, US multinationals increased their use of the Irish double Irish tax scheme (see table for Apple's ASI).[111] These schemes artificially inflate Ireland's GDP/GNP to Ireland's GNI (a truer measure of Ireland's real economy).[112] In contrast, the EU-28 average GDP is 100% of GNI (see table).

By 2011, Ireland's ratio of GNI to GDP, had fallen to 80%.[113] Or, expressed another way, Ireland's 2011 GDP was 125% of its GNI (the un-inflated Irish economy). The EU has been concerned at this, and discovered that 23% of 2010-2014 Irish GDP was just untaxed royalty payments (i.e. Irish GDP is 130% of Irish GNI).[114]

Irish financial commentators note how difficult it is to draw comparisons with other economies.[112] The classic example is the comparison of Ireland's indebtedness (Public and Private) when expressed "per capita" versus when expressed "as % of GDP". On a 2017 "per capita" basis, Ireland is one of the most leveraged OECD countries (both on a Public Sector and on a Private Sector Debt basis). On a 2017 "% of GDP" basis, however, Ireland is deleveraging rapidly.[115][116][117]

Things got even more distorted when Apple restructured its Irish subsidiary in 2015 from a customised double Irish scheme, into a capital allowance for intangible asset scheme (behaves like a quasi-corporate tax inversion), and Irish GDP rose 26.3% in one quarter (see leprechaun economics).[40]

As a direct result of this, the Governor of the Central Bank of Ireland convened a steering group (Economic Statistics Review Group) to recommend economic statistics that would better represent the true position of the Irish economy. The result was the creation of a new metric, modified gross national income (or GNI*).[118][119]

The CSO estimated 2016 Irish GNI* (€190bn) was 30% below 2016 Irish GDP (€275bn) and Irish Debt/GNI* goes to 106% (Irish Debt/GDP was 73%).[120][121]

As Irish GNI was 23% below GDP before Apple's restructuring,[114] many felt GNI* still overstates the Irish economy (and understates indebtedness).[122][123][112]

I would go a step further. At this point, multinational profit shifting doesn't just distort Ireland’s balance of payments; it constitutes Ireland’s balance of payments.

— Brad Setser, Council on Foreign Relations, "Tax Avoidance and the Irish Balance of Payments", 25 April 2018[40]

Distortion of Irish ETR[edit]

The Irish Department of Finance produced a report in April 2014 quoting World Bank/PwC figures that Ireland's corporate effective tax rate (or ETR), was 12.3%.[124]

This figure contrasts with the known ETRs of the largest multinationals in Ireland (who use the double Irish and single malt tax schemes), which are <1%.[1][5][125][7][8][10]

It also contrasts with the known ETR of the third Irish tax scheme, capital allowances for intangibles, which has an ETR of 0-3% (depending on start date).[39][87]

The issue is that the Revenue Commissioners, and PwC/World Bank calculations, exclude income not considered taxable under the Irish corporate tax code (why their calculations are inherently self-fulfilling, at 12.5%). The example of Apple's, Apple Sales International (ASI), Ireland's largest company by some margin,[27] shows the level of disconnect this approach can create compared to the reality of Irish taxes avoided. The Revenue Commissioners did not include ASI in Apple's Irish tax calculation.[126] In contrast, when the EU Commission investigated ASI, they calculated an ETR for Apple in Ireland of 0.005%.[127]

The Commission's investigation concluded that Ireland granted illegal tax benefits to Apple, which enabled it to pay substantially less tax than other businesses over many years. In fact, this selective treatment allowed Apple to pay an effective corporate tax rate of 1 percent on its European profits in 2003 down to 0.005 percent in 2014.

— Margrethe Vestager, EU Competition Commissioner, 30th August 2016[127]

When the US Bureau of Economic Analysis ("BEA") approach is used (it adds up all Irish incorporated companies, including ASI, regardless of Irish taxability), the 2013 Irish effective tax rate is 2.2%. The BEA calculation of Ireland's effective tax rate has generated much debate and dispute, both in Ireland,[128][129][130] and in the international media.[11][131]

The Irish Government[132] and several Irish leading Irish economists[133] and Irish tax advisors (including the creator of the double Irish, PwC's Feargal O'Rourke[134]) claim that this is not a fair representation of Ireland's ETR rate as Ireland is only a "conduit" in cases like Apple. However, other tax specialists and financial commentators, highlight that the point of the BEA calculation is that it captures the scale of US tax avoidance that Ireland's corporate tax system and multinational tax schemes, facilitates.[135][11][136] They point out that it is not the Irish CT "rate" that matters, but the Irish CT "regime".[137]

Applying a 12.5% rate in a tax code that shields most corporate profits from taxation, is indistinguishable from applying a near 0% rate in a normal tax code.

— Jonathan Weil, Bloomberg View, 11 February 2014[135]

Apple isn’t in Ireland primarily for Ireland’s 12.5 percent corporate tax rate. The goal of many U.S. multinational firms’ tax planning is globally untaxed profits, or something close to it. And Apple, it turns out, doesn’t pay that much tax in Ireland.

— Brad Setser, Council on Foreign Relations, 30 October 2017[41]

Make no mistake: the headline rate is not what triggers tax evasion and aggressive tax planning. That comes from schemes that facilitate profit shifting.

— Pierre Moscovici, Financial Times, 11 March 2018[138]

The Irish Auditor General now calculates the Irish corporate ETR on 8 different bases, which range from 2.2% (BEA method), to 15.5%.[139]

Effect of Tax Cuts and Jobs Act[edit]

Dominance of U.S. Multinationals: Irish corporate gross operating surplus by the controlling country of the company (note: a material part of the Irish figure is also for U.S. tax inversions which effectively are US-controlled companies). Eurostat (2015)

Foreign multinationals are key to Ireland's economy. They employ one quarter of Ireland's private sector workforce,[28] pay 80% of Irish business taxes,[29] and create 57% of private sector non-farm value-add.[28] The past President of the Irish Tax Institute stated they pay 50% of all Irish salary taxes (due to higher paying jobs), 50% of all Irish VAT, and 92% of all Irish customs and excise duties.[30] Discussed in more detail here.

There are no non-US/non-UK foreign firms in Ireland's top 50 firms by turnover (and one by employees, German retailer Lidl).[27] This is because non-US multinationals have territorial tax systems which charge low tax rates on foreign income. The UK multinationals in Ireland (apart from UK retailers, like Tesco), are pre-2009 corporate tax inversions, before the UK moved to a territorial tax system.[46][47][13]

Outside of these pre-2009 UK corporate tax inversions, foreign multinationals in Ireland are almost all US multinationals, using double Irish, single malt and capital allowance tax schemes to shield themselves from pre-2017 TCJA worldwide taxation system and its 35% tax.[42][12] US multinationals make up 14 of Ireland's top 20 companies,[27] and Ireland is the largest recipient of US corporate tax inversions.[34]

The move to a territorial tax system, with a 21% US tax rate and a 13.125% IP tax rate, under the US Tax Cuts and Jobs Act of 2017 ("TCJA") is a challenge to Ireland's three tax schemes.[43][140][44]

In addition, the TCJA contains a unique "carrot" and a "stick" aimed at US multinationals in Ireland:[48][141][142][50]

  1. As a "carrot", the TCJA enables these firms to charge out their IP globally (just like with a double Irish or single malt arrangement) but from a US base, at a preferential FDII tax rate of 13.125% . In addition, the extra reliefs of 100% capital expensing, and 21% relief on US costs, make the effective FDII rate 1-2% lower again (or 11-12%).
  2. As a "stick", the TCJA GILTI tax rate forces these firms to pay a minimum US tax rate of 10.5% on their global IP, regardless of where their IP is located. In addition, only getting 80% relief (not 100%), against foreign taxes paid, means that the effective GILTI rate is 1-2% higher again (or 11-12%, similar to the net FDII rate).

The new GILTI tax regime, which acts like an international alternative minimum tax for IP-heavy US multinationals, has led some to qualify the new US TCJA system as a quasi-territorial tax system.[143][142]

Before the 2017 TCJA, US multinationals, with the necessary required IP to use Irish multinational tax schemes, could achieve effective Irish tax rates of 0-3% versus 35% in the US. After the 2017 TCJA, these same multinationals can now use this IP to generate US effective tax rates, which net of additional US reliefs, are similar to what they will pay in Ireland post GILTI (circa 11-12%).[142][42][45]

In fact, whereas using the double Irish in its single malt form (via Malta), gives an effective U.S. corporate tax rate of circa 12.2%, not being able to use any Irish BEPS scheme, and paying the full Irish 12.5% headline rate, gives an effective U.S. tax rate of circa 14.13%, which makes Ireland prohibitively expensive to U.S. multinationals (versus basing the IP in the U.S. under the 13.125% FDII rate).[51]

U.S. multinationals like Pfizer announced in Q1 2018, a post-TCJA global tax rate for 2019 of circa 17%, which is very similar to the circa 16% expected by past U.S. multinational Irish tax inversions, Eaton, Allergan, and Medtronic. This is the effect of Pfizer being able to use the new U.S. 13.125% FDII regime, as well as the new U.S. BEAT regime penalising non-U.S. multinationals (and past tax inversions) by taxing income leaving the U.S. to go to low-tax corporate tax havens like Ireland.[144]

Now that the net effective tax rates for IP-heavy US multinationals in Ireland and the US are so similar, other technical factors come into play, for example:

  • Facebook Ireland, Ireland's 9th largest company,[27] has a double Irish scheme in Ireland.[7][8][9] As a result of the increased liability and restructions of the 2018 EU GDPR regime, Facebook have decided to move all their non-EU accounts hosted in Facebook Ireland (circa 1.5bn accounts of 2.3bn total global accounts) back to the US, where data laws are more favourable.[52][53]
  • Apple Ireland, Ireland's largest company,[27] restructured their double Irish scheme into an Irish capital allowance scheme in January 2015 (earlier). Capital allowances schemes started after February 2013 have a clawback of allowances if the scheme is terminated within 5 years.[94][145] As this is €3bn per annum (see leprechaun economics) for Apple, they are unlikely to be leaving Ireland pre 2020.[54]

US multinationals using Irish tax schemes[edit]

Major companies in Ireland are known to employ the double-Irish arrangement, including:

Major companies in Ireland are known to employ the single-malt arrangement, including:

Major companies in Ireland are known to employ the capital-allowances for intangible assets arrangement, including:

See also[edit]

References[edit]

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External links[edit]