Are we there yet? Are we there yet?

The Apple state-aid journey rumbles on.  The scene was enlivened somewhat last week with the publication of a white paper by the US Treasury criticising the approach of the European Commission.  The paper dishes out a good kicking and provides a useful template for a company or country considering an appeal to an adverse ruling.

We know most of the key points the US are making.  They are concerned that the US taxpayer could end up footing the bill (as Robert Stack repeats here) but if the tax payments are legitimately due elsewhere then this doesn’t amount to much.  But the risks, functions and assets that generated Apple’s profits were in the US so, under the current system, the tax on those customers is due in the US.  Of course, a company may decide to move those assets but that is an issue that the country of departure has oversight of.  For the period under investigation in the Apple case it is clear that the main drivers of its profitability were controlled and located in the US.

The US Treasury paper looks at the substance of the EC position – that some transfer pricing arrangements put in place (for mainly US MNCs) were “wrong”.  For the EC is this is a competence they do not have nor one that they should be seeking. If you are intent on saying that something is “wrong” you must be able to state what is “right” – but in transfer pricing there are ranges not precise outcomes.

In the case of Apple the EC is looking at transfer pricing arrangements that were put in place in 1991 and revised in 2007.  The cost-plus arrangements put in place for the Irish branches are a fairly standard feature under the OCED’s guidelines for implementing the arm’s length principle.  Applying the OECD’s guidelines would be unlikely to lead to an adverse finding in Apple’s case even if some of the notes and (lack of) documentation could raise concerns.  So the Commission are going to come up with their own guidelines which they have yet to fully reveal.  There is talk of “prudent market operators” and how they would respond to offers made to them to assess the arm’s length principle.

It is a small bit like getting a court summons a couple of years after driving through an 80kph zone at 85kph on the basis that the speed limit is going to be revised down in the future.  Yes, you were over the speed limit but it was probably within an acceptable range so the only way to make a case is to announce a change to the limit but trying to apply that retrospectively is not legally sound.

There have been two significant occasions when the European Commission has told us that the provisions of our corporate tax regime were against the principles of the EU treaties.  The first was against the zero rate of tax for profits from export sales which was abolished in 1980 (with a ten-year grandfather clause) and then against the subsequent dual rate of Corporation Tax of 10 per cent for “manufacturing” and some financial services and, at times, north of 40 per cent for everything else.

These special rates were ruled to be repugnant to the provisions of the EU treaties and were abolished but nobody was silly enough to propose that the rates introduced to replace them be applied retrospectively to previous tax years.  If the European Commission think the national approach to transfer pricing is wrong they might have some grounds for recommending changes but targeting past individual arrangements with a new general approach seems misguided at best.

And remember this is DG Comp not DG Tax. What are they doing getting involved in the minutiae of tax law when they don’t have any expertise, or even significant headcount, in this area?  By all means they should launch state-aid investigations when there is talk of “special two per cent tax rates” but coming up with their own approach to the arm’s length principle, and declaring that to be the de-facto standard, is not a sensible step.

So after much hullabaloo and nonsense about $19 billion the case will come down to the profit attributed to the risks, functions and assets that Apple has in Ireland.  For the main trading company, Apple Sales International, this is the agreement it entered with its Irish branch to carry out the logistics and administration behind the manufacture of its products in China and onward sale to distributors, retailers and some customers.  The taxable income of the Irish branch was determined on a cost-plus basis.  The profit to be taxed was equivalent to 12.5 per cent of the costs incurred by the Irish branch excluding products for resale.  The big sums are in products for resale but these were never owned by the Irish branch.  By 2012 ASI was recording profits of around $35 billion.  The publicly available information on ASI is collated here.

The second company under investigation, Apple Operations Europe, has a branch in Ireland that carries out the manufacture of a specialised line of computers and mainframes.  It is the only manufacturing facility that Apple owns.  The amounts here are relatively small and any adjustments to the transfer pricing arrangement are unlikely to be significant.  AOE does own 99.99 per cent of ASI but as both are non-resident it is the profits of their Irish operations that matters not their overall profits.  Both companies were established in 1980.

Any significant sum is likely to come from proposed changes to the cost-plus arrangement for determining the taxable incomes of Apple Sales International’s Irish branch. When looking at the 2011 figures the Commission have indicated a return–on-sales margin of 0.2 per cent would result in the same taxable income as given by the cost-plus margin of 12.5 per cent.  A return-on-sales margin of one per cent would give an additional tax bill of around €200 million for the ten years in question.  Upping the margin to three per cent gives a tax bill of around €600 million.  How much would a “prudent economic operator” need to be paid to handle the logistics and administration behind Apple’s manufacturing and distribution?  When the transfer-pricing arrangement was revised in 2007 the total sales of ASI were around €6 billion.  Getting three per cent of that would equate to a profit of around €180 million.  Where do I sign??

Cost-plus arrangements are common but there are alternatives.  Here is an extract from the 2006 accounts of Google UK Ltd:

Turnover represents the total intercompany cost plus 8% charged to Google Ireland Limited for sales and marketing and cost plus 10% for research and development charged to Google Inc. during the year, excluding value added tax.

Earlier this year HMRC – who are tax experts – completed a long audit of Google.  The outcomes for the 10 years under audit was that Google had to pay £130 million in additional UK corporation tax – with most of this apparently related to how share-based remuneration is treated in the calculations of Google UK’s taxable income.

It also seems that from now on Google UK’s taxable income will be a function of the size of the market it services (return on sales) rather than the size of its operations (cost plus).  At the conclusion of the audit Google said:

“We have agreed with HMRC a new approach for our U.K. taxes and will pay 130 million pounds, covering taxes since 2005. We will now pay tax based on revenue from U.K.-based advertisers, which reflects the size and scope of our U.K. business.”

We don’t know the return-on-sales margin to be applied to this new  approach but it does show that cost-plus and return-on-sales approaches can potentially be interchanged.  HMRC did not, though, require that the return-on-sales approach be applied retrospectively.

So what are the European Commission going to do in the case of Apple? We don’t know. It is only a guess but it is possible they will propose that the taxable income of ASI’s Irish branch should have been assessed as a margin of the sales that it provided support for.  The resultant tax bill depends on the actual margin proposed but it will not be $19 billion.

Comments

comments

15 thoughts on “Are we there yet? Are we there yet?”

  1. As interesting as the Evening Echo’s analysis of the UCC hurlers is, I’m not sure that’s where the first link was supposed to lead!

  2. Thank you for these clarifications. Though I can’t find the link, my faulty memory suggests that previously you highlighted the fact that it is not Ireland, but the US, which is providing state aid in the case of Apple. By allowing MNCs, such as Apple, to book profits in offshore jurisdictions where they are taxed at rates much lower than they would be if these profits were repatriated, the US tax regime is implicitly providing state aid to these firms. There is obviously scope for much debate about the proportion of these profits that should be taxed in the US, but there than can be little doubt that the current administration is seeking to strike a policy balance between the amount of US tax extracted from these firms and the amount of implicit state aid provided.

    It also seems to be clear that in striking this balance the US administration is reasonably relaxed about jurisdictions with relatively low corporate tax regimes, such as Ireland, capturing a portion of this implicit state aid in tax revenue – once the ruses being employed by US MNCs aren’t too blatant or excessive in their effects. But what is riling the administration is the fact that DG COMP is seeking to force Ireland to capture more of this implicit state aid than the application of Ireland’s rules entitled it to capture. And what I suspect in addition is really riling the administration – and would rile any US administration and all affected economic operators – is the expected retroactive application by DG COMP of changes in the rules (which amounts to “taking without due process”). In the US that is a total “no-no”.

    Of course, Ireland’s “Leprechaun Economics” – “Ah Sor, you’re lugging’ a fierce heavy pot of gold while you’re lookin’ for a safe home for it. We’ll look after it for you – and we’ll do it for a very small charge. Shure, we’ll mind it like it was our own.” – is exposing the country to a bit of ridicule. But while the US administration is willing to provide so much implicit state aid to certain firms operating globally – and is also willing to allow countries such as Ireland to capture a small portion of this state aid – there is no reason why Ireland should not provide the relevant services and extract the benefits. But the tax revenue from the provision of these services should be placed in a sovereign wealth fund (or used to replenish the PRF), since it is pure rent capture which is both volatile and is unlikely to be sustainable.

    1. The concept of State Aid does not exist in the US system cf.

      http://www.europarl.europa.eu/RegData/bibliotheque/briefing/2014/140779/LDM_BRI(2014)140779_REV1_EN.pdf

      One is reminded of Shaw’s famous comment of “two countries divided by a common language”. What is happening in the case of Apple in relation to the actions of the Competition Directorate of the Commission is, despite appearances, par for the course. The EU competition rules have not changed since the Treaty of Rome because they represent the core political bargain underpinning the EU. The ECJ has, of course, developed an extensive jurisprudence and the area is probably the most specialised in terms of legal expertise.

      The choice facing Apple and the government, with the latter in a situation of having to follow the lead set by the former, is whether to (i) settle or (ii) dispute before the ECJ the recommendation of the Competition Directorate (which the Commission as a collegiate body, deciding by simple majority, is almost certain to follow). The sum supposedly in dispute will, no doubt, be the decisive factor.

  3. oesnt matter if its 19e or 19b euro. The idea that the state would somehow NOT take it is mindboggling. But im sure they will find willing voices to support their looking askanse at it

    1. Stockholm syndrome.I wonder who signed off on the 2%. Puts political arguments about cuts into a very different zone. And the Gov will be arguing against any ruling. Whiskey tango foxtrot.

  4. The government should take whatever they are legally obliged to. But, should use it to reduce Corporation Tax generally, even if its only a temporary reduction in line with the one-off nature of the payment.

    1. Running with the hare and hunting with the hounds is not on in this instance (despite the skill of successive governments in so doing).

  5. “Tax avoidance by multinational corporations is a serious concern for the United States and governments around the world. President Obama has proposed a robust tax reform plan that would address this issue and has repeatedly urged Congress to enact it into law. ”

    This is the opening quotation from the press release by Robert Stack.It’s enough to bring tears to one’s eyes.

    The bottom line is that the EU has an organised system, with effective administrative penalties,with little in the way of “plea bargaining”, and which none of the participants dare depart from. The US does not.

  6. @Seamus

    Informative post. I learnt a lot from it. But I think you are missing the point. This is not a technical dispute. It’s a political dispute.

    If Ireland has granted favourable tax treatment to a large global footloose MNC (which the Commission concludes it has) then the Irish state has unfairly intervened in the market, to attract investment, at the expense of it’s EU nation-state partners.

    It’s not about tax, it’s about state aid. Hence, the remit of the EU Commissioner for Competition. Ireland is part of a 28 (soon to be 27) nation-state trading bloc with supranational capacities. This means Ireland can’t do what it wants when it comes to taxation.

    I have posed this question to you before, and I’m still curious to hear your answer: what if every country in the EU did what Ireland did? It would lead to an race to the bottom. Most European technocrats and politicians know this.

    But in Ireland, the attitude remains, ah well, ye know yourself, wink, wink, it’s grand. Well, it’s not, unless you want to leave the EU.

  7. @ Seamus Coffey

    I assume like others of the CW crowd that a few years ago expected the status quo to continue, you are surprised by developments.

    Keep in mind that the Obama administration had proposed a minimum foreign tax (it did not specify a rate) to avoid profit shifting to low rate or no tax countries — it’s a risk for Ireland and never say never today!

    We dissidents are not enemies of progress!

    http://www.irishexaminer.com/business/features/ireland-needs-to-start-facing-down-the-tax-haven-taunts-390959.html

    We should welcome the response of the European Commission to tax avoidance as a warning issued by a group representing 80 top US tech to the Dutch government suggests that they would prefer the US status quo — or have they any leverage with US lawmakers?

    Beyond this detail here, the simple story is that Apple says most of its profit originates in the US but it says in its financial accounts that 65% arises from foreign revenues!

    It then has 2 Irish shell companies that it conveniently decided sometime since 1980 are not tax resident anywhere on the planet, and the entities have enabled it to cut the foreign rate to as low as 2%. Officially, the two Irish entities hold $216bn in cash!!!

    Apple has most of the cash in the US and it and others are pressing for an amnesty to allow it have more flexibility in using the cash.

    Secretly deciding that Irish companies used for tax avoidance have no tax residency anywhere, would not risk being charged with tax fraud if it wasn’t a powerful firm like Apple?

    Conveniently as well it was able to cease using the Double Irish dodge.

    Apple’s foreign tax rate fell from 12 to 2% in a decade

    http://www.finfacts.ie/Irish_finance_news/articleDetail.php?Apple-s-foreign-tax-rate-fell-from-12-to-2-in-a-decade-687

    US tech groups lobby Netherlands to resist EU tax reforms

    http://www.finfacts.ie/Irish_finance_news/articleDetail.php?US-tech-groups-lobby-Netherlands-to-resist-EU-tax-reforms-689

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