Five things to know about the EU's Apple tax ruling

This week, the European Commission ruled that Ireland provided State Aid to Apple through preferential tax rules. Unsurprisingly this has brought corporation tax rules into the spotlight, but there are a number of points about this particular case that many commentators have missed so far. Here are the key points:

1. Nothing has been proved (yet)

The EU Commission has yet to publicly show proof of any special deal between Apple and the Irish government. As such, we cannot judge its claims until its evidence is published. Central to the Commission’s claim that Ireland has provided a special “sweetheart deal” to Apple are two rulings by Ireland’s national tax authority, the Revenue Commissioners, which stated that Apple was in compliance with Irish tax rules.

However, it is very common for companies to seek clarification from tax authorities in order to ensure that they are keeping on the right side of the law, especially when dealing with new tax structures. A statement of compliance is not State Aid. While the Commission concedes this, its main argument is that Revenue found an internal profit allocating structure that has “no factual or economic justification” to be legal – and this amounted to State Aid.

So far, the Commission has issued a finding without releasing its evidence publicly, nor its methodology to coming to such a conclusion. The Commission has not provided any evidence of a deal, nor has it provided any evidence of State Aid. Its argument to date boils down to the Revenue providing Apple with a letter of comfort, and the Commission disagreeing with Revenue’s rationale.

2. Is this even a special deal?

Typically, for this to constitute State Aid under European Competition Law, the Commission would have to show that this is a special deal for Apple, within certain parameters. The fact that Apple was utilizing a uniqueness in Ireland’s tax law does not equal state aid. The uniqueness in question is that Irish tax rules state that non-resident companies are only charged Irish corporation tax on the profits attributable to Irish operations, and therefore, in the words of the Revenue Commissioners, “[t]he profits of non-resident companies that are not generated by their Irish branches – such as profits from technology, design and marketing that are generated outside Ireland – cannot be charged with Irish tax under Irish tax law”.

If this option is available to any non-resident company, it is a legitimate feature of Irish tax law as opposed to specific state aid. Even if Apple was the first and only company to do so, this would merely be taking advantage of a tax loophole – not State Aid.

The Office of the Revenue Commissioners has publicly confirmed that Apple has paid all tax due, and that there was no departure from Irish Tax Law in its treatment of Apple, nor was there any preference given to Apple in its application of the law.

It therefore looks to be unlikely that there was any special deal, but rather this is the case of Apple taking advantage of Irish tax rules, and the national tax authority merely confirming that what they were doing was legal.

3. The European Commission is being deeply political

The Commission stated on 31 August that Ireland is free to spend the €13bn of uncollected taxes how Ireland wishes. This, while being in direct contravention to European fiscal principles (which state that windfalls should be allocated to national debt reduction), was also political act designed to undermine the Irish government's reaction domestically.

The Irish government is currently a minority government composed of Fine Gael (a centrist Christian Democratic party) and mostly left-of-centre populist Independent MPs. The Commission’s statement could foment further unease domestically by providing pressure to the populist Independents not to support a cabinet decision to appeal the finding, which has potential to collapse the government. It is naturally very much within the Commission’s interests not to be challenged on this, and it appears that the Commission’s statement was designed to weaken the government’s political freedom to challenge it.

4. …and it was about more than just Ireland’s lax tax laws

The finding was a political warning shot against US companies keeping money effectively stateless until such a time as they can be brought to shore in the US. The EU has been pressuring US authorities over this mostly-untaxed money for years in its fight against tax avoidance (as opposed to evasion). This is more than about competitive Irish tax policies.

Companies, which naturally don’t want to pay punitive US corporate tax rates, have been keeping money offshore in the hope that the US will undertake substantial corporate tax reform. US firms have amassed a sizeable amount of money offshore, thought to be in the trillions of dollars.

American policymakers will therefore be none-to-keen about Europe making a grab for their rainy day fund. Indeed, the US Department of Treasury released a damning statement, just before the publication of the EU Commission’s decision, noting that the Commission’s Apple investigation went beyond regular “enforcement of competition and state aid law”.

5. It is fundamentally a question of sovereignty

Irish tax policy is and ought to be the sole business of the Irish government. Any intrusion into this by the EU should be resisted strongly unless it can be shown there was very specific preferential treatment that was more akin to a subsidy than a true feature of the tax system.

At the very fundamental level, unless there is a deal catered specifically to Apple, this amounts to a Commission overreach into national tax policy. Tax policy, as set out in European Law, is the sole competence of the Member States. If it becomes a case where the EU may declare tax law features “State Aid”, it sets a dangerous precedence for EU intervention in an area that should be the sole remit of national governments.

Ireland’s economic strategy is based on its competitive corporation tax regime. It is what fundamentally transformed the poorest country in Western Europe to one of the richest in the world in less than two decades. Ireland should therefore appeal this decision to the European Court of Justice, as a modest windfall should not be allowed to alter its successful strategy. Thankfully the main governing party, Fine Gael, recognises this. Let’s hope the populists do too.

Cillian Fleming is based in Dublin. These remarks have been written in a personal capacity and do not reflect the views of his employer.