The case for an appeal
Published 01/09/2016 | 02:30
The Government will claim the EU Commission's ruling on Ireland's alleged €13bn 'sweetheart' tax deal with US tech giant Apple is based on a "basic error of fact".
In a memo brought to Cabinet, Finance Minister Michael Noonan set out the Government's grounds for appealing the controversial finding from the EU's competition watchdog.
The strongly worded briefing note claims the Commission "misapplied" tax rules laid down in EU treaties when it made its shock judgment on Tuesday.
The document also accuses EU Commissioner Margrethe Vestager of "second guessing" the Revenue Commissioner in her findings and failing to recognise the difference between resident and non-resident companies.
The memo, seen by the Irish Independent, says Ms Vestager wrongly found profits made from Apple's intellectual property (IP) should be attributed to its Irish branch.
It also says the Commissioner failed to produce any evidence which would prove the benefit given to Apple would not have been given to another company under similar circumstances.
The document says the Government will also make a number of "procedural arguments" against the judgment. This includes a complaint that the Commission refused to engage in any discussion on expert reports before making its decision, but criticised the contents of the same reports in its findings.
It describes the Commission's allegation that illegal state aid was given to Apple as a "totally novel" argument and says Brussels will have expected both Ireland and Apple to appeal the ruling. However, it warns that a decision on lodging an appeal should be made as soon as possible to assuage the concerns of multinational companies investing in Ireland.
It also says Ireland's tax laws are "scrupulously independent" and free any from "improper influence".