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The European Union warned us this week not to expect a speedy conclusion to the long-running investigation into the legality of Apple’s tax arrangements in Europe. The delay follows a decision back in December to expand the scope of the investigation.
But while the wheels of EU tax investigations may grind exceedingly slowly, I’d be willing to wager quite large sums of money on the final outcome. It looks to me increasingly clear that Apple’s tax arrangements with the Irish government are going to be declared illegal, and that Apple is going to be faced with a significant bill for unpaid tax …
Let’s start with the basics of how the whole situation arose in the first place. You can skip this section if you’re already up to speed on the background.
In a simple world, one of two things would happen when I buy an iPhone in the UK. Either the Apple Store in London sends the money back to Cupertino, and Apple pays U.S. tax on it there, or the money is paid into an Apple UK bank account, and Apple pays tax on it in Britain. In reality, however, neither of these things happens – and there are two reasons for that.
First, every country in the world sets its own corporate tax rates – the percentage tax a company pays on its profits. In the USA, the federal corporate tax rate is 35%. In the UK, it’s 20%, so Apple would already be better off paying UK tax on British sales. But it realized it could do better than that if it shopped around.
Ireland has one of the lowest rates of corporate tax in Europe, at 12.5%. By establishing a European headquarters in Ireland, and sending all the money from sales across Europe there, it could pay a lot less tax. But it doesn’t end there.
Ireland sets its corporate tax so low because it wants global companies to establish their European headquarters there. That creates jobs, and pumps money into the local economy. The bigger the company, the greater the benefit to the economy. So for very large companies – like Apple and Google – Ireland offered them a special deal (reportedly brokered by Steve Jobs). ‘Choose Ireland for your European HQ,’ it said, ‘and you only have to pay 2.5% tax.’ That’s five times lower than the rate paid by most companies.
So rather than pay 35% for sending the money back to the USA, or 20% for keeping it in the UK, Apple funnels all sales from European countries into Ireland – and pays just 2.5% tax on the lot.
I should stress that all this is perfectly legal … for Apple. Apple’s legal obligation is to pay the tax each country demands from it. If Ireland demands only 2.5%, Apple’s only duty in law is to smile broadly and write the check. (Ok, it isn’t actually legally required to grin as it does so, but it would be hard not to, right?)
This was what allowed Tim Cook to truthfully tell a Congressional hearing into Apple’s tax affairs that “we pay every dollar that we owe.” Apple does indeed pay every dollar, or Euro, it is required to. The company has broken no laws.
But the same is probably not true of the Irish government. Ireland is a member of the European Union, and there are laws determining what member states can and cannot do where corporate taxes are concerned. Precisely because the EU knows countries might be tempted to offer special deals to large companies, and because it doesn’t want a race to the bottom where those companies end up paying next to nothing in tax, it specifically outlaws them.
Special deals offered only to certain companies are known as state aid, and that’s illegal.
State aid is any advantage granted by public authorities through state resources on a selective basis to any organisations that could potentially distort competition and trade in the European Union (EU).
While we’ll need to await the outcome of the investigation before we know whether Ireland’s deal with Apple is formally found to be illegal state aid, it’s hard to see how it could not be.
‘Any advantage’ – check. A tax rate of 2.5% instead of 12.5% is one hell of an advantage.
‘through state resources’ – check. The deal was struck with the Irish tax authorities.
‘on a selective basis’ – check. Apple got a deal, as did other large companies like Google and Microsoft. Mama and Papa’s Pizza Place, not so much.
‘distort competition and trade’ – check. When one company pays one fifth of the tax rate paid by competitors, that massively distorts competition.
And similar deals in Belgium, Luxembourg and the Netherlands have already been declared illegal. So the case that Ireland broke the law seems to me cut-and-dried: it did.
I said earlier that Apple hasn’t broken the law, which means it’s not on the hook for penalties or charges. But it is on the hook for the difference between the tax it actually paid and the tax it should have paid. Which is the difference between 2.5% and 12.5%. On all of the revenue Apple funnelled through Ireland from the whole of Europe. For ten years. That’s a lot of money.
Apple last year told shareholders that it was unable to say just how much money that would amount to, only that it would be a ‘material’ amount – where ‘material’ is finance-speak for ‘a shedload.’
If the European Commission were to conclude against Ireland, the European Commission could require Ireland to recover from the Company past taxes covering a period of up to 10 years reflective of the disallowed state aid. While such amount could be material, as of March 28, 2015 the Company is unable to estimate the impact.
But that hasn’t stopped others doing the sums. Bloomberg estimated the total tax liability at more than $8B.
But Apple’s potential European tax liabilities don’t necessarily end there. A number of European countries have questioned the legality of Apple funneling profits from sales in their country back to Ireland. Those countries believe Apple should be paying tax in the country where the sales were made.
Some European countries have done more than question the arrangements: they have flat out rejected them. Italy, for example, last year accused Apple of failing to declare more than $1.3B of income earned from 16 Italian Apple Stores, and presented the company with an additional tax bill for €318M ($347M). Apple paid up.
If other European countries do the same, it could face similar bills from countries across Europe, with the total potentially running into more than a billion dollars, taking that $8B estimate to upwards of $9B.
In comments on past pieces on this topic, some have questioned the fairness of Apple being asked to pay more tax than was demanded at the time. If Apple paid what was asked of it, they argued, surely it’s unfair to come asking for more later? But the position for Apple is no different to that of you or I. If the IRS or HMRC makes a mistake in calculating our personal taxes, it doesn’t let us off when that error comes to light. It might offer us an apology and time to pay, but we’d still have to fork over the cash. The same is true of Apple.
Finally, if you’re in any doubt about the eventual outcome of the investigation, you need to consider the politics. At a time when European economies are – like the U.S. one – still struggling, there is enormous public anger at the idea of large companies being able to get away with paying less than their fair share of tax.
A deal struck between Google and the British government, where the company paid just £130M ($185M) for back taxes covering ten years was roundly condemned not just by the public but by Britain’s own public spending watchdog – and is itself likely to be investigated by the European Commission. Starbucks had to change its own accounting system so that it stopped funneling most of the profits from its UK coffee shops back to offshore accounts after being faced by customer boycotts. Amazon too had to agree to pay UK tax on sales to UK customers in the face of public anger.
So my view is that both the law and the public mood is clear. Apple is likely on the hook to hand over more than $9B in back taxes – or around three times the amount it paid for its largest ever acquisition, Beats. That’s got to sting. But with cash reserves of around $200B in the bank, perhaps not too much.
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If Apple has to stump up then the likes of Adobe, Microsoft, Google and a host of others will be on the hook as well.
Wall St will probably take another $10 off the stock price.
Popcorn anyone?
I am not an Apple hater, I live their products. Even Sony’s best products back in the day felt like toys compared to Apple devices.
But I think we can all agree Apple is greedy, more than any other company. Not talking about this tax thing but the fact they see every loophole to save money (not sure if saving that money in Ireland was/is illegal) but I do know thy break the law quite often to save money.
Just to give you people an example, in Belgium, companies are required to give consumers a minimum of 2 years warranty on electronics and such.
Apple at first was not only advertising their products to have 1 year warranty but they also refused to fix devices that were returned if they exceeded the warranty period of 1 year. That was and still is illegal.
Today, Apple in Belgium agrees to fix your Apple device withing the minimum warranty period of 2 years, but they still advertise their products having 1 year warranty.
Why? To sell more Apple Care packages. 2 years added warranty sounds more interesting than just 1 year added warranty period.
This is disgusting I feel and I think Apple should be punished for this. 8b$ is a lot, but they should respect the law. A loophole is ok, breaking the law is not.
Doesn’t Apple’s Apple Care product offer enhanced protection over what is prescribed in law?
That is Apple Care Plus.
I love Apple and know a lot about them (reading these sites, etc). I do agree they should pay whatever taxes they owe. Steve Jobs may have taken the deal Ireland offered but Tim Cook continued with that deal. Apple is a very greedy company but being greedy is how they became to be the most beloved company in the world… and how they ended up in these tax crises.
So everyone who tries to not pay more tax is greedy?
You got me there.
Hmmmm. I think there is a difference. Yes Apple ears a lot of money by selling products 3x the price it cost them but that is ok because people are ok to pay that money for higher quality products. But robbing people for things like memory upgrades, storage upgrades is so disgusting because it’s not like the iPhone with 128GB storage had to be designed entirely differently to the 16 or 64GB model, it costs Apple nothing except the price difference of the flash memory chip. So there’s the difference.
Welcome to capitalism.
mrorchester11, how is tax in any form compatible with capitalism, that is, in its actual form, laissez-faire capitalism? I know it’s cool to bash the big C these days but can we keep a cognitive constant.
Because companies offering different products at different prices point in a competitive market has nothing to do with greed. It’s called capitalism.
The two-year warranty in the EU applies to the seller, not the manufacturer; after six months you have to prove any defect is the manufacturer’s fault before receiving a replacement.
I don’t blame Apple being ‘greedy’ because at the end of the day their job is to make money for their shareholders and part of that involves reducing the tax bill where they can. The bigger question is why politicians around the world haven’t come up with a global and uniform business tax so that businesses cannot shop around for the lowest taxes and the best special treatment – businesses aren’t your friend and they’re more than happy to throw you under the bus if it means that they can shave a few dollars off their tax bill. Until politicians realise that they need to work together to counter balance corporate interests then these sorts of tax arrangements will keep flourishing. Btw, when I mean a uniform system – if the net result is that all OECD countries end up standardising at 12.5% then I’d sooner that than the status quo that exists today where businesses pay 0% because they paying accounting tricks with the books.
It’s the politicians that created these tax laws!!! It’s them that created the loop holes!! Complaining about Company’s then using them is laughable!!! Do YOU pay your full taxes? Or do you take all the deductions you can to reduce your Tax bill? Why shouldn’t Apple do the same! How many Rich people do the same thing!!! Yes even all the Rich Democrats!!! Apple is in the business to make money! Not have the greedy, can never have enough to waste, steel it all away. Many of Apple Stock owners are normal people, Me and you with Apple Stock in our 401K maybe. You want Apple to make money and the stock to go up!
Apple followed the Tax law in Europe at the time. Being cry baby’s now about Apple not paying enough after the fact is something else. You want to change the law, go right ahead and Apple will pay the higher taxes at that point. Going back in time is wrong. If the country did something wrong, you charge THEM!!! Apple followed the laws.
This is a rather good summary by Ben.
Worth remembering of course, that customers (especially here in the UK) are mostly hypocritical idiots, who will complain, for example, about how little UK tax Amazon pays, and then become outraged when their DVDs are slightly more expensive because they can no longer be routed via Jersey.
Likewise there’s a distinct lack of understanding of all the other different types of tax, besides corporation, companies like Apple and Starbucks pay when operating high street stores and employing staff.
(It’d be interesting to see how this changed if the UK voted to leave the EU.)
Yep, agree Apple, Starbucks et al pay council tax, National Insurance, etc. And customers of course pay VAT. As for leaving the EU, I’m trying hard not to think about that …
Socialist Europe is the real crook here. Tax fiends
Did you not read in the article that said that US corporation tax is higher than UK corporation tax?
https://en.wikipedia.org/wiki/List_of_countries_by_tax_rates
Lol,,,,,there is something called an EFFECTIVE TAX RATE. Start where ever you want in the US the EFFECTIVE rate is much lower
Maturity, might want to try it sometime. (fart sounds) #areyoutwelve
This, like most Apple news seems fine. Apple can afford it. The only downside is it might affect stock price. But I’m sick of hearing about things which do (like iPhone sales not growing YOY), so that doesn’t upset me too much.
It seems to me that the article is conflating two distinct issues (forgivable, though, since everyone else has done so as well): there is the matter the EU is *actually* investigating — which is whether **IRELAND** (ie the government) gave companies illegal tax breaks, and then there is some looking into whether the individual companies got “special deals” not available to Irish companies. While I’m not an expert on this at all, it seems to me that the way this *ought* to work, presuming Ireland did something illegal, is that **IRELAND** pays any penalty the EU imposes, and it may then in turn try to claw that back from the companies in the form of “corrected” tax assessments.
You may think this is a minor difference, but it isn’t: it’s the difference between blame being placed where it may properly belong (Ireland broke the law) or (if this is the finding, which I doubt will be the case) that individual multi-nationals like Apple, Amazon, et al broke the law by demanding special deals. I suspect Apple (et al) did, as they claim, nothing wrong, and that the government of Ireland is at fault. Maybe that won’t matter in terms of the money paid out, but there’s a huge legal and moral difference between “we took advantage of the government’s rules to our benefit legally” and then have to pay some “back tax,” and “we forced the government to break the EU laws by demanding special deals nobody else got,” which means they are the guilty party.
The article is very clear that Ireland (almost certainly) broke the law, and that Apple didn’t. If Apple had broken the law, it would be subject to penalties as well as back-tax, but that’s not the case. It’s perfectly reasonable that a company that enters into a deal that due diligence would tell it is illegal would have to repay the tax.
Whatever Apple is required to pay isn’t a “penalty” but rather the tax they legally should have paid. Perhaps they got bad advice from some Irish tax agent but as the 9to5 article points out that doesn’t mean the proper taxes won’t have to be paid.
I guarantee to you that Apple’s lawyers and tax experts already were aware of this risk when this deal was struck, apparently by Jobs himself. They knew that what Ireland was doing was probably illegal and might someday backfire. They hire the smartest lawyers and tax consultants so please don’t feel sorry for them for a minute. They knew but hey, it was worth trying right. Especially if you know you can’t be penalized if a country lures you in with this kind of irresistible baits.
If the arrangement that Ireland offered Apple is found illegal fine, let Ireland pay the f-ing difference. It was their mistake.
Apple followed the law. They did what and paid what they were told.
This isn’t like the IRS or Canada Revenue miscalculating what you or I owe and then admitting the mistake and coming back to collect the difference. This is them changing the rules retroactively and then arbitrarily saying Apple owes more. The rate changed from 2.5% to 12.5%, hell why not say it should have been 30%, or 50%, or 100%. If you’re going to retroactively change the rules to fill your coffers why not go all the way.
I have no problem with Apple paying a higher rate from now on. I don’t even have a problem with Italy trying to get back taxes on sales in their country that were routed through Ireland. That was always questionable in my mind. But for the EU to tell Apple that a legal agreement for a tax rate that the government of Ireland offered them is retroactively illegal is just wrong.
But I agree, The EU is too cash strapped to hold back. They’re going to try and dig out every pound of flesh they can.
You could argue that if Apple were unaware of the proper rate of tax, but that’s not the case here: it knew it was negotiating a special deal, and it ought to have enough to lawyers to know that such a deal was illegal. And the cash won’t go to the EU, it will go to Ireland.
So…you’re saying the EU is going after Ireland for an illegal tax deal…but Ireland will benefit from the back taxes?
Something is rotten in Denmark
BS, if Apple knew, then the EU knew so why wait a decade to bring it up.
Shut down the operations, pull out entirely and see how that benefits their economy.
Note: you are thinking about this wrong! I know big companies make money so spread it around by taxing them. They can afford it!!! COMPANIES DON’T PAY TAXES. COMPANIES COLLECT TAXES FROM CONSUMERS AND PASS THEM ALONG TO THE GOVERNMENT. If the EU imposes a 10% greater tax on Apple. Apple will raise prices 10%. People pay corporate taxes. Corporate taxes are just a way to hide additional taxes being paid by consumers.
Here in the U.S. you have states fighting each other for a large company to come in and get lower Tax rates etc. from eve everyone else in that state!!! So what’s the difference? Is that illegal?
Apple made business decisions that financially benefited Ireland and the EU based on agreed terms. If they knew they were liable for an additional 10% tax they might have created jobs in South America, or Mexico or even in the US. I have no problem with the EU saying hay start paying 12.5% or get out. But retroactive changes are BS.
Someone else tried to pass this off as Apple knew it was illegal when they signed the deals. Ok, if it was that obvious why didn’t the EU bitch about it 10 years ago. Why wait 10 years, getting all of the benefits and then say, sorry that wasn’t enough give us more. Sounds like a shake down and far more illegal than trying to encourage a company to do business and create jobs in your country by lowering the tax burden place on them.
Remember the EU isn’t just some arbitrary third party. It is like the U.S. Federal government telling a State that it broke Federal law. The U.S. Federal government can do that. And a U.S. company can’t easily claim immunity to a Federal law just because a State law says something different. Though in some areas State rights and laws do trump Federal law. But those areas are rare, I believe. EU is, I think, more complicated and the preeminence of EU law over individual EU member laws is much less clear and much less settled.
This is more of an attack on Ireland by the EU than it is about collecting back taxes from Apple. Making doing business in Ireland using Ireland’s lenient tax regime a liability to businesses will go a long way towards taking away the appeal of setting up business in Ireland. On the flip side if they declare these tax breaks illegal under EU law, then every singly tax break given by an EU member state to sway a company to relocate or do business in their country over an other should also be just as illegal.
Ben’s spot on here: Ireland charging their own tax rate is their own business, but cutting special deals with certain mega-corporations is against EU law. It’s like California doing a deal but the deal is against federal law.
It’s good to see a series of cases where these greedy – and excessively powerful – corporations are being shown they are not above the law.
In 2010 the US Effective tax rate was an average 12.6%….far cry from the 35% starting point pre-deduction you reference. (stats per the US GAO) Its very misleading to suggest corporations pay 35% in the US…..Not a single one pays 35%
On the entire income of a company, no, of course not: tax is paid on profits after deductions for capital costs, operating costs and a whole host of other things. But if you’re comparing tax rates across countries, the applicable rate on profits strikes me as the fairest way the way to do it.
I just feel the line “So rather than pay 35% for sending the money back to the USA, or 20% for keeping it in the UK, Apple funnels all sales from European countries into Ireland – and pays just 2.5% tax on the lot.” should be closer to starting out with “rather than pay 13%” to illustrate a better picture of the reality. Apple sounds a whole lot more evil when suggesting the starting point they’d pay is 35%….
No, we need to compare apples with apples: the 2.5% is again on profit, not revenue. If you did the same sum in Ireland as you’ve done in the US, the figure would be around 0.8%.
Ben, your article should really be labeled an opinion piece rather than a feature, since it’s a really a thumbsuck that shows no evidence of research or reportage. And even in an opinion piece, you should be careful about making statements such as how what Apple did was “perfectly legal” and “the company has broken no laws”, but that Ireland did.
As you yourself pointed out, “Special deals offered only to certain companies are known as state aid, and that’s illegal.” And that’s not just illegal for the government of Ireland — agreeing with another party to violate the law is known as conspiracy, and abetting and being an accessory to a crime is illegal too.
By your own description, Apple appears to have conspired with the government of Ireland to violate EU tax law, and its lawyers undoubtedly knew or should have known that conspiring with, abetting, and being an accessory to Ireland’s commission of a crime would have legal implications for Apple itself.
To blithely say that Apple didn’t commit a crime by soliciting and receiving illegal state aid is akin to saying that soliciting a bribe is not illegal because you’re not the one who *paid* the bribe, or that receiving stolen goods is not a crime because you didn’t steal them. Both sides of an illegal transaction are illegal.
Luckily for you, being a fanboy is not. (Yet.)
We don’t yet know the full details of the arrangements to be able to reach either conclusion. And we probably never will know the details, we will only ever know the outcome.
I think the prefix ‘Opinion’ fairly clearly labels it an opinion piece …
Arguing that Apple conspired with the Irish government, and that such conspiracy is illegal, is certainly an interesting thought. I’m not sure whether, in law, negotiations between a company and a government tax body can ever constitute conspiracy in law, but I’d love to hear a legal opinion on that one!
Although countercorp sure has a point here it’s more complicated then that. If you strike a deal with a country’s own tax authorities you can assume that the deal is legal at that point for that country. So according to the laws of the country you’re making the deal with you’re not doing anything illegal. It’s the same for other crimes. It’s a crime in Saudi Arabia for woman to drive cars while in most other countries it’s completely legal. In some US States you can legally smoke marijuana and in some you’ll be arrested.
This is no different. So according to Irish laws they did nothing wrong. But to EU laws they might as Apple’s lawyers and tax consultants could have known this might be regarded as state aid. EU law is a higher law then the country’s law but I’m not sure if that’s true for tax matters also. Country’s have quite a lot of freedom when determining taxes. Anyway if state aid can be proved both Ireland and Apple will be penalized. Although most of these cases are solved by…. yet another deal.
This is craziness. We all as individual as well as companies look for ways to legally pay less tax. Apple and hundreds of other companies are using the various means to legally pay less tax. Countries need to stop their whining and clean up their tax laws. Now go donate another $1000 to charity =)
Not sure why liberals even care about collecting taxes at all. They will still always spend much more than they collect in taxes. That’s why the US is $18 trillion in debt today.
“Through state resources” seems open to interpretation. Through striking a deal Ireland did not give Apple any “state resources”.
No physical “aid” passed from Ireland to Apple and that seems to be what the lawmakers had in mind.
Well, there’s the small matter of that $8B that was legally a state resource …
Paying the politicians mafia the blackmail is not a good thing at all. These politicians should be put in jail. They are criminals!
While I understand the sentiment, when the law is whatever you say it is, you can’t break the law.
if i was to work in the UK and have my bank in ireland, and instruct my salary to be paid into the Irish bank account but then say “well, my bank is in ireland, surely i should pay irish tax and not the uk tax” then i would be laughed at.
It’s only like if i buy something overseas and have it shipped – on certain products i will still have to pay custom fees on bringing that item into the country.
plus – if i buy online from an international store i pay that countries tax amount on goods…
Large companies shouldnt be any different — if you are opening up shop in the UK, and people are buying from your store, then the company should be paying the tax for that item in the UK… if it’s online – then they can have it based in Ireland BUT the item should be shipped from Ireland and the customer pay custom fees…
Apple made an offer with Ireland knowing full well they were avoiding paying tax to the correct countries — plus, Ireland do not speak for the EU and therefore should also be held responsible for tax evasions (after all, they technically benefit off the sales in other countries too)…
But if this case is a success and Apple are made to pay, then then will lead things forwards and make google, amazon, starbucks etc pay…
If they don’t want to pay – don’t sell in that country… simple
This has shady written all over it, Apple had to know that this would catch up to them. What comes around goes around.
Hmmm, so Apple pays all the tax that is due in the country that it sells an iPhone in and then pays a corporate tax to the country it is incorporated in.
The EU wants all the local tax money but now it wants money from Apple cause Ireland is collecting tax from Apple for existing there and suddenly it wants more than its been getting. Lets go back in time, change the rules, and collect lots and lots of money….
How does a company exist if countries can change the rules in the past for payment now????? That sounds like pure EU greed and theft. You even said that Apple pays Ireland the money Ireland charges it. Maybe the next stop is the cayman Islands. We are not talking about taxes on product (where did you report how much that huge amount is???) but rather corporate tax.
So, follow the law and get punished. Sounds like a plan. Maybe Britain is on to something there when they left the EU.
Just saying.
“Apple pays Ireland the money Ireland charges it”
Apple pays Ireland the amount it negotiated to pay.
The corporate tax rates are too high, even 12.5%! If governments gave a fair rate, then special deals would not be needed, and all of this nonsense would go away. Apple is not at fault… the greedy governments are.