Background

When considering this EU decision to the effect that APPLE owes €13 Billion in taxes, two over-riding factors need to be borne in mind:

1. There is in effect a trade war going on between EU and US. The EU Commission is of the opinion that by not imposing US taxation on un-remitted profits the US Authorities are bestowing an unfair trading advantage on US multinationals over their EU competitors and
2. EU Competition Commissioner Margrethe Vestager is not averse to expanding her EU power base and she likes to make the “headlines”

Effect on Ireland’s reputation

It is not good. It paints Ireland as a tax haven which facilitates multinationals to avoid paying large sums of tax in other jurisdictions. This was re-in forced by Oxfam’s report on tax havens published this week.

Irish Government View

The Commission has exceeded its powers and misinterpreted both Irish Tax Law and practice and also EU State Aid Legislation. In addition, the EU is seeking to impose 2016 rules and regulations on matters that took place many years ago when national and inter-national tax practices were very different.

The Santander Bank, Santusa and Autogrill Case

In 2014 the General Court ruled against EU Commission’s state aid case against the above three companies. The reason the General Court found in their favour was based on the nature of how state aid is defined. This will be critical in the Irish case. For a tax concession or a tax ruling, such as that given to Apple, to qualify as illegal state aid, four criteria must be fulfilled:

• The aid must be provided by the State and financed by State resources
• It must grant an advantage
• The advantage must be selective
• It must distort competition and trade within the EU

What happens next?

Both Ireland and Apple have lodged appeals. Only one thing is sure the lawyers will make loads of money as this case winds its way through the different EU judicial layers and will end being adjudicated by General Court of the European Court of Justice in Luxemburg (another country with plenty of controversial tax rulings).

What questions do you have?

We are happy to help. Please post your comment below or contact Gerry Higgins, Tax Partner on 01 677 9000 or by email: ghiggins@cooneycarey.ie.

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