EU illegal State aid case against Apple in Ireland
|An aspect of fiscal policy|
On 29 August 2016, after a two-year EU investigation, Margrethe Vestager of the European Commission announced: "Ireland granted illegal tax benefits to Apple". The Commission ordered Apple to pay €13 billion, plus interest, in unpaid Irish taxes from 2004–14 to the Irish State. It was the largest corporate tax fine in history. On the 7 September 2016, the Irish State secured a majority in Dail Eireann to reject payment of the back-taxes, which including penalties, could reach €20 billion, or 10% of 2014 Irish GDP. In November 2016, the Irish State formally appealed the ruling, claiming there was no departure from Irish taxation law, and that the Commission's action was "an intrusion into Irish sovereignty", as national tax policy is excluded from EU treaties. In November 2016, Apple CEO Tim Cook, announced Apple would appeal, and in September 2018, Apple lodged €13 billion to an escrow account, pending appeal.
The issue was Apple's variation of the double Irish tax system, which, from 2004-2014, Apple used to shield circa €110.8 billion of non-US profits from tax. Apple did not use the standard two separate Irish companies, as Google and other Irish-based U.S. multinationals employ with their double Irish tax systems, but instead received two rulings from the Irish Revenue (in 1991, and again updated in 2007), that it could use a single Irish company, split into two branches. These were private rulings to Apple, not given to other Irish-based U.S. multinationals, and thus charged as illegal Irish State aid by the EU Commission.
On the 9 January 2015, Apple informed the Commission[a] that it closed its hybrid-double Irish, base erosion and profit shifting ("BEPS") tool. In Q1 2015, Apple restructured into a new Irish BEPS tool called the capital allowances for intangible assets ("CAIA") tool, also called the "Green Jersey". Apple's Q1 2015 restructuring required a 12 July 2016 restatement of Irish 2015 GDP, which increased it by 26.3 per cent (later revised to 34.4 per cent); the restatement was called "leprechaun economics", and led to new EU inquiries in 2017, and confirmation in June 2018, that Ireland was the world's largest tax haven.
Ireland's rejection of the EU Commission's "windfall" in back-taxes surprised some. However, in § Understanding Irish decision, U.S.-controlled multinationals are 25 of Ireland's top 50 companies, pay over 80% of all Irish corporate taxes (circa. €8 billion per annum), directly employ 25 per cent of the Irish labour force (and indirectly pay half of all Irish salary taxes), and are 57 per cent of all non-farm OECD value-add in the Irish economy. The American-Ireland Chamber of Commerce estimated that the value of U.S. investment in Ireland was €334 billion, exceeding Irish GDP (€291 billion in 2016). In contrast, there are no non-U.S./non-U.K. foreign multinationals in Ireland's top 50 firms. The U.K. firms are either selling into Ireland, like Tesco, or date pre-2009, after which the U.K. reformed to a "territorial" tax system. Multinationals from "territorial" systems rarely use tax havens, and in 2016, the U.S. was one of the last "worldwide" tax systems in operation. The cost of U.S. multinationals abandoning Ireland as a U.S. corporate-tax haven, would greatly exceed the EU's €13 billion "windfall".
History of Apple in Ireland
On the 23 December 1980, Apple opened production facilities in Holyhill, Cork. By 1990, the number of jobs had grown from 700 jobs to 1000 permanent jobs, as well as 500 sub-contractors. Interview excerpts, published by European Commission, found that this information was used in the way of background information by a tax adviser representing Apple during meetings with Apple in 1990.
By November 2016, Apple employed 6,000 people in Ireland, almost all of which were in the Apple Hollyhill Cork plant. The Cork plant is Apple's only self-operated manufacturing plant in the world (e.g. Apple always contracts to 3rd party manufacturers). Holyhill is considered a low-technology facility, building iMacs to order by hand, and in this regard is more akin to a global logistics hub for Apple (albeit located on the island of Ireland). No research is carried out in the facility. Unusually for a plant, over 700 of the 6,000 employees work from home (the largest remote percentage of any Irish technology company).
Apple’s unusual Cork plant should be seen in the context of the job thresholds Ireland places on U.S. multinationals availing of the main Irish BEPS tools, discussed here, which provide effective Irish tax rates of 0-3%, but require specific employment quotas; and give more "substance" to the BEPS tool.
Apple's Irish structure
In 2014, Apple's Irish structure consisted of two subsidiaries; Apple Operations Ireland ("AOI") an Irish-registered holding company which acts as an internal financing company. AOI claimed tax residence in Bermuda and thus, is not an Irish tax resident. The EU Commission State Aid fine does not pertain to AOI.
Apple Sales International ("ASI"), on the other hand, is the focus of the EU Commission's fine (and was the focus of 2013 Senate Investigation). ASI is an Irish-registered subsidiary of Apple Operations Europe ("AOE").. Both AOE and ASI are parties to an Irish advanced pricing agreement which took place in 1991. This agreement was updated in 2007. ASI is the vehicle through which Apple routed €110.8 billion in non-US profits from 2004 to 2014, inclusive.
Shifted (USD m)
Shifted (EUR m)
|Irish Corp. Tax|
Avoided (EUR m)
ASI's 2014 structure was an adaptation of the double Irish scheme, an Irish IP-based BEPS tool used by many U.S. multinationals. Apple did not follow the traditional double Irish structure of using two separate Irish companies. Instead, Apple used two separate "branches" inside one single company, namely ASI. It is this "branch structure" the EU Commission allege is illegal State aid, as it was not offered to other multinationals in Ireland, who had used the traditional two separate companies version of the double Irish BEPS tool.
Under the double Irish structure, one Irish subsidiary (IRL1) is an Irish registered company selling products to non-US locations from Ireland. The other Irish subsidiary (IRL2) is "registered" in Ireland, but "managed and controlled" from a tax haven like Bermuda. The Irish tax code considers IRL2 a Bermuda company (used the "managed and controlled" test), but the US tax code considers IRL2 an Irish company (uses the registration test). Neither taxes it. Apple's subsidiary, ASI, behaved like it was IRL2, it was "managed and controlled" via ASI Board meetings in Bermuda, so Irish Revenue did not tax it. But ASI also did all the functions of IRL1, making circa €110.8 billion of profits from Non-U.S. sales. The EU Commission contest IRL1's actions made ASI Irish, and the functions of IRL1 over-rode the Bermuda Board meetings in deciding the "managed and controlled" test. The Commission had not brought any cases against U.S. multinationals using the standard double two separate companies Irish BEPS tool.
Apple's unique ASI structure, is believed to be the reason why Apple never had an Apple retail store in the Republic of Ireland (it even has one in smaller Belfast).
In May 2013, Apple’s tax practices were questioned by a bipartisan investigation by the Senate Permanent Subcommittee on Investigation. The investigation aimed to examine whether Apple used offshore structures, in conjunction with arrangements, to shift profits from the US to Ireland. Senators Carl Levin and John McCain drew light on what they referred to as a special tax arrangement between Apple and Ireland which allowed Apple to pay a corporate tax rate of less than 2%.
In June 2014, an investigation was opened by the European Commissioner for Competition on behalf of the EU Commission (SA 38373). The Ireland case was opened in conjunction with two other similar cases; involving Starbucks (Netherlands) and Fiat (Luxembourg). The Commissioner noted concerns that discretion in transfer pricing rules had been used to give Apple selective advantage. They believed that this violated Article 107(1) of the Treaty on the Functioning of the European Union (TFEU). Article 107(1) states that aid granted by member states cannot threaten to distort competition. They examined Irish tax rulings from 1991 and 2007 by the Irish Office of the Revenue Commissioners. The Commission refers to taxable profit allocated to the Irish branches of AOE and ASI. The Commission claimed the pricing arrangement between Apple and Ireland was not supported by an economic assessment and was in part supported by employment considerations.
On the 30 August 2016, the Commission released a 4-page press release describing their decision and rationale. The EU Commission's full 130-page report on their State aid findings, including partially redacted information on Apple's Irish business (e.g. profits, employees, Board minutes etc.), was released on the 30 August 2016.
According to the Commission, the tax arrangement between Ireland and Apple qualifies as state aid as it meets the European Union's four criteria:
- There has been an intervention by the State
- This intervention gives the benefactor a competitive advantage on a selective basis
- As a result, competition has been or may be distorted
- The intervention is likely to affect trade between the Member States
Member States cannot give tax benefits to selected companies – this is illegal under EU state aid rules. 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 per cent on its European profits in 2003 down to 0.005 per cent in 2014.
The 30 August 2016 press briefing summarised the following findings from the main report:
- The taxable profits of Apple Sales International and Apple Operations Europe in Ireland are determined by a tax ruling granted by Ireland in 1991, which in 2007 was replaced by a similar second tax ruling. This tax ruling was terminated when [ASI] and [AOE] changed their structures in 2015;
- Two tax rulings issued by Ireland to Apple have substantially and artificially lowered the tax paid by Apple in Ireland since 1991;
- These rulings endorsed a way to establish the taxable profits for two Irish companies of the Apple group [..] which did not correspond to economic reality;
- As a result of the allocation method endorsed in the tax rulings, Apple only paid an effective corporate tax rate that declined from 1% in 2003 to 0.005% in 2014.
The 30 August 2016 press briefing made the following statements regarding the financial implications:
- The Commission can order recovery of illegal state aid for a ten-year period preceding the Commission's first request for information in 2013;
- Ireland must now recover the unpaid taxes in Ireland from Apple for the years 2003 to 2014 of up to €13 billion, plus interest [and normal penalties].
The Commission fine of €13 billion was still an estimate, subject to final ASI accounts, and covers the period 2004 to 2014 inclusive, as the Commission is permitted to order a full recovery within a 10-year period from the start of any investigation. The January 2018 updated estimate of the fine had risen to €13.85 billion). The Commission fine is simply the estimated profits of, mainly, ASI applied, at the prevailing Irish corporate tax rate of 12.5% (see Table 1 above; and full EU Commission report). In addition, Apple will also owe interest penalties at the Irish Revenue penalty rate (was 8% in 2016), which would total circa €6 billion, giving a total fine of circa €20 billion.
A fallback position of the EU Commission's State aid case is that if ASI is not an Irish company, then it was a "stateless" company (given it was "legally" registered in Ireland), and Apple has been remitting royalty payments from EU-28 countries to a company in a jurisdiction with no EU tax treaty. Apple would, therefore, owe back-taxes to each individual EU country, from which these royalties were paid (and not to Ireland). As all other EU countries have corporation tax rates materially in excess of Ireland's 12.5% corporation tax rate, the total Apple effective taxes owned, in this scenario, would be materially in excess of €13 billion. Margrethe Vestager appealed to individual EU taxing authorities to assess this aspect of Apple's State aid case for themselves, on a case-by-case basis.
In fact, the tax treatment in Ireland enabled Apple to avoid taxation on almost all profits generated by sales of Apple products in the entire EU Single Market. This is due to Apple's decision to record all sales in Ireland rather than in the countries where the products were sold. This structure is however outside the remit of EU state aid control. If other countries were to require Apple to pay more tax on profits of the two companies over the same period under their national taxation rules, this would reduce the amount to be recovered by Ireland.
In November 2016, in a letter to the Apple community in Europe, Tim Cook said the company would appeal. The Irish government also formally notified the EU Commission it would appeal in November 2016, and reject any claim to the €13 billion "windfall". In the immediate aftermath of the Commission's 29 August 2016 ruling, Ireland’s finance minister Michael Noonan stated that Ireland would be appealing the decision, subject to cabinet approval. On 2 September 2016, the Irish cabinet voted to approve the appeal. The minority Fine Gael-led government also had to secure a general Dail Eireann vote on the matter, which it did on the 7 September 2016, by a majority of 93 to 36, securing the support of the other main Irish political party, Fianna Fáil.
In August 2018, it was reported that the appeal would begin before the end of 2018, but could take over 5 years, and that Apple had begun to lodge the €13 billion into an escrow account during Q2 2018. On 18 September 2018, it was reported that Apple had lodged the €13 billion, plus another €1.3 billion,[b] into the Irish State's escrow account.
Further Apple controversy
The EU Commission's findings cover the period from 2004 to end 2014, and their report notes that Apple had informed them at the start of 2015 that they had closed down their controversial hybrid-double Irish BEPS tool, ASI, which enabled the Commission to complete their State aid report, and finalise the fine of €13 billion.
In January 2018, economist Seamus Coffey, Chairman of the State's Irish Fiscal Advisory Council, and author of the State's 2017 Review of Ireland's Corporation Tax Code, showed Apple restructured ASI into another Irish IP-based BEPS tool, the capital allowances for intangible assets ("CAIA"), in Q1 2015.
It is specifically prohibited under Ireland's own corporation tax code (Section 291A(c) of the Irish Taxes and Consolation Act 1997) to use the CAIA BEPS scheme for reasons that are not "commercial bona fide reasons" and in particular for schemes where the main purpose is "... the avoidance of, or reduction in, liability to tax". Given that the CAIA scheme is a deliberate IP-based BEPS tool, it is Ireland tripping over itself trying to maintain OECD-compliance.
The November 2017 Paradise Papers leaks revealed that Apple and its lawyers, Applebys, were looking for a replacement for the ASI structure in 2014. They considered a number of tax havens (especially Jersey). Some of the disclosed documents leave little doubt as to the key drivers of Apple's decision making.
If the Irish Revenue waived Section 291A(c) for Apple's 2015 restructuring, it could result in a further EU Commission State Aid investigation.
In January 2018, in a series of articles in The Sunday Business Post, Mr Coffey estimated that since the 2015 restructuring, Apple has avoided Irish corporate taxes totalling circa at €2.5-3bn per annum (at the 12.5% rate). Mr Coffey calculated the potential second EU Apple State aid fine for the 2015-2018 (inclusive) period, would therefore reach circa €10bn, excluding any interest penalties.
The Irish financial media further noted that the then Finance Minister Michael Noonan, had increased the tax relief threshold for the Irish capital allowances scheme from 80% to 100% in the 2015 budget (i.e. reduce the effective Irish corporate tax rate from 2-3% to 0%). This was changed back in the subsequent 2017 budget by Finance Minister Paschal Donohoe, however firms which had started their Irish capital allowances scheme in 2015 (like Apple), were allowed to stay at the 100% relief level for the duration of their scheme , which can, under certain conditions, be extended indefinitely.
In November 2017, it was reported that the EU Commission had already asked for details on Apple's Irish structure post their January 2015 ruling.
The April 2017 release of Irish corporation tax returns showed an equivalent "leprechaun economics"-like jump. It led some to wonder whether Apple decided, given the exposure of its CAIA BEPS tool, and the controversy of "leprechaun economics", to "still pay tax in Ireland".
Understanding Irish decision
After the 29 August 2016 ruling, the EU Commission followed up on the 31 August 2016 to counter statements from the Irish Government that Ireland would have to use the proceeds of any Apple fine to pay down public sector debt (in line with agreed EU budgetary rules), and to clarify that Ireland could allocate the money in whichever way the Irish Government lawfully saw fit. Regardless however, on the 7 September 2016, the Irish minority Government, with material opposition support, rejected the EU Commission's ruling on Apple, and the payment of €13 billion, plus penalties, to the Irish State.
U.S. multinationals dominate Ireland's economy, attracted by Ireland's BEPS tools, that shield their non-U.S. profits from the historical U.S. "worldwide" corporate tax system. In contrast, multinationals from countries with "territorial" tax systems, by far the most common corporate tax system in the world, don't need to use corporate-tax havens like Ireland, as their foreign income is taxed at much lower rates.
For example, in 2016-17, U.S.-controlled multinationals in Ireland:
- Directly employed one-quarter of the Irish private sector workforce;
- Created "higher-value" jobs at an average wage of €85k (€17.9 billion wage roll for 210,443 staff) vs. Irish domestic industrial wage of €35k;
- Paid €28.3 billion in 2016 in taxes (€5.5 billion), wages (€17.9 billion on 210,443 staff) and capital spending (€4.9 billion);
- Paid 80 per cent of Irish corporation and business taxes, which totalled just over €8 billion;
- Paid circa 50 percent of Irish salary taxes (due to higher paying jobs), 50 per cent of Irish VAT, and 92 per cent of Irish customs and excise duties;
(this was claimed by a leading Irish tax expert (and Past President of the Irish Tax Institute), but is not fully verifiable)
- Created 57 percent of private sector non-farm value-add (40% of value-add in Irish services and 80% of value-add in Irish manufacturing);
- Made up 25 of the top 50 Irish companies, by 2017 turnover (see Table 2, below); the only non-U.S/non-Irish other companies are U.K. companies which either sell into Ireland, like Tesco, or date from pre-2009, when the U.K. reformed its corporate tax system to a "territorial" regime.
- American-Ireland Chamber of Commerce estimated the value of U.S. investment in Ireland in 2018 was €334 billion, exceeding Irish GDP (€291 billion in 2016).
|1||Apple Ireland||United States||technology||not inversion||119.2|
|3||Medtronic plc||United States||life sciences||2015 inversion||26.6|
|4||United States||technology||not inversion||26.3|
|5||Microsoft||United States||technology||not inversion||18.5|
|6||Eaton||United States||industrial||2012 inversion||16.5|
|8||Allergan Inc||United States||life sciences||2013 inversion||12.9|
|9||United States||technology||not inversion||12.6|
|10||Shire||Great Britain||life sciences||2008 inversion||12.4|
|11||Ingersoll-Rand||United States||industrial||2001 inversion||11.5|
|12||Dell Ireland||United States||technology||not inversion||10.3|
|13||Oracle||United States||technology||not inversion||8.8|
|14||Smurfit Kappa Group||IRL||-||-||8.6|
|16||Pfizer||United States||life sciences||not inversion||7.5|
|19||Merck & Co||United States||life sciences||not inversion||6.1|
|20||Sandisk||United States||technology||not inversion||5.6|
|21||Boston Scientific||United States||life sciences||not inversion||5.0|
|24||Perrigo||United States||life sciences||2013 inversion||4.1|
|25||Experian||Great Britain||technology||2007 inversion||3.9|
|29||Mallinckrodt Pharma||United States||life sciences||2013 inversion||3.3|
|31||Alexion Pharma||United States||life sciences||not inversion||3.2|
|33||VMware||United States||technology||not inversion||2.9|
|34||Abbott Laboratories||United States||life sciences||not inversion||2.9|
|35||ABP Food Group||IRL||-||-||2.8|
|36||Kingston Technology||United States||technology||not inversion||2.7|
|38||Circle K Ireland||IRL||-||-||2.6|
|39||Tesco Ireland||Great Britain||food retail||not inversion||2.6|
|40||McKesson||United States||life sciences||not inversion||2.6|
|43||Intel Ireland||United States||technology||not inversion||2.3|
|44||Gilead Sciences||United States||life sciences||not inversion||2.3|
|45||Adobe||United States||technology||not inversion||2.1|
|48||Baxter||United States||life sciences||not inversion||2.0|
From the above table:
- U.S.-controlled firms are 25 of the top 50 and represent €317.8 billion of the €454.4 billion in total 2017 revenue (or 70%);
- Apple alone is over 26% of the total top 50 revenue and greater than all top 50 Irish companies combined (see leprechaun economics on Apple as one-fifth of Irish GDP);
- UK-controlled firms are 3 of the top 50 and represent €18.9 billion of the €454.4 billion in total 2017 revenue (or 4%); Shire and Experian are pre the U.K. transformation to a "territorial" model;
- Irish-controlled firms are 22 of the top 50 and represent €117.7 billion of the €454.4 billion in total 2017 revenue (or 26%);
- There are no other firms in the top 50 Irish companies from other jurisdictions.
- 1980 - Apple establishes production facilities in Cork, Ireland.
- 1991 - Irish State agrees first tax deal with Apple Inc (one of the two rulings cited by the EU Commission).
- 2007 - Original 1991 tax agreement is re-negotiated with Irish State (the second ruling cited by the EU Commission).
- 2013 - U.S. Senate subcommittee examines offshore profit shifting and tax avoidance by Apple Inc.
- 2014 - European Commission opens case against Apple Inc. in Ireland.
- 2015 - Apple re-structures its two Irish subsidiaries (creating the leprechaun economics moment).
- 2016 - European Commission release findings announcing Apple has undue tax benefits owed to Ireland (up to end 2014)
- 2016 - Both Apple Inc. and Ireland announce a decision to appeal the ruling.
- 2017 - European Commission asks for details of Apple's 2015 re-structuring in Ireland
- 2018 - Apple pays the €13bn fine (no interest penalty yet) to Ireland (subject to appeal)
- Criticism of Apple Inc.
- Double Irish, Single Malt, Capital Allowances
- Leprechaun economics
- Paradise Papers
- Corporation tax in the Republic of Ireland
- State aid (European Union)
- Put on the green jersey
- Ireland as a tax haven
- Revealed when the EU Commission published their full COMMISSION DECISION (S.A 38373), page 42 section 2.5.7 Apple's new corporate structure in Ireland as of 2015.
- The extra €1.3 billion has been reported as being interest, however, interest is not payable when there is an appeal; it is more likely that €14.3 billion is the final total fine, excluding interest, as a result of the final audited ASI accounts for 2013 and 2014 being filed
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Following a lengthy debate in the recalled Dáil, the vote was passed by 93 votes to 36. A number of amendments to the motion were rejected. A Sinn Féin motion calling for the Government not to appeal the ruling was defeated by 104 votes to 28
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Germany taxes only 5% of the active foreign business profits of its resident corporations. [..] Furthermore, German firms do not have incentives to structure their foreign operations in ways that avoid repatriating income. Therefore, the tax incentives for German firms to establish tax haven affiliates are likely to differ from those of U.S. firms and bear strong similarities to those of other G-7 and OECD firms.
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- Country in which executive decisions are made and main executives live, as opposed to country of legal incorporation
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