Thursday 17 January 2019

Richard Curran: 'Apple's billions could roll in if tax-appeal case was dropped'

Tim Cook
Tim Cook
Richard Curran

Richard Curran

Ireland's modest €100m Exchequer surplus for last year could be a drop in the ocean to a 2019 surplus if Apple decided to drop its European Court appeal on a €13bn European Commission illegal state aid ruling.

If Apple drops its appeal, the Irish government would be crazy not to do the same. Such an outcome would see €14.4bn (when interest and penalties are included) flow into the Irish Exchequer coffers.

The case could be heard this year, and if the Apple/Irish Government side lose, they would have to decide whether to take the money or appeal that decision to a different European court.

Needless to say, a one-off €14.4bn boost to the Exchequer this year would be extremely welcome - but also a double-edged sword.

Trying to create calm among every taxpayer, interest group and political party about how best to spend the money, would be politically fraught.

What a great problem for a government to have you might think. Has any previous government got that lucky?

But even among families who win millions in the lottery, things can get very messy.

Because the windfall would be literally a one-off, it could not be factored into future government spending. In fact, someone like Finance Minister Paschal Donohoe would surely want to see the vast bulk of the money going to pay down some of our €200bn national debt.

Mr Donohoe was interviewed on RTÉ Radio One's 'Today Show' last Friday by Miriam O'Callaghan.

He was asked about whether Apple's recent sales performance warning should worry us, given Ireland's dependence on companies like the San Francisco-based giant to deliver for the economy.

He said we had to offer certainty in the business environment to companies like Apple, and then made an interesting, if slightly cryptic comment. "There will be things coming up over the course of the year that will test our mettle and will test the mettle of our society overall regarding are we willing to be careful with the money that we are collecting."

What better way to test how careful we are than a one-off €14.4bn windfall at a time of a housing crisis, a health crisis, Brexit, but also a €200bn national debt? Perhaps the minister's comments were intended to cover a multitude of tough fiscal decisions that will have to be made and may have had nothing to do with the Apple case at all.

He did make the comment three days before heading off to San Francisco, where he met Apple executives yesterday as part of an IDA Ireland trip.

There is, however, a plausible and logical sequence of events that could see Ireland get its hands on that money in the not too distant future. The Government took the appeal case because it strongly believed that the EC had drifted into making state aid judgements about issues it was not really empowered to do, namely sovereign tax matters.

Who wants to say 'no thanks' to €14bn? For the State, there was a point of principle about defending the notion that our tax policies - and how they were implemented in the past - did not confer favourable treatment to any particular company and were not in breach of any rules.

But there was another reason to take the case. Apple wanted to appeal. How could Ireland be seen to abandon Apple? It has 6,000 employees here and is one of the country's biggest corporation taxpayers. The State invited the company here based on a set of tax rules, terms and conditions, which the Irish Revenue Commissioners approved in 1991 and again in 2007. The particular corporation structures used in this case have been effectively shut down under new Irish tax rules.

They won't be repeated. The Government's appeal was about defending the past and standing by a major investor in our country.

So, what if Apple decided that it would no longer pursue its appeal? Ireland would be off the hook on its appeal. Continuing alone with the State's appeal would place the Government in a ridiculous position where the EC says the money is owed to us, and the firm paying the bill is no longer contesting it.

Common sense would surely dictate that Ireland drop its appeal too, paving the way for the money to flow into the Irish Exchequer.

Would Apple drop its appeal? The financial incentive underpinning its case has been seriously eroded by US President Donald Trump's corporate tax reforms. Apple has said it will repatriate around $259bn of overseas cash back to the US, in a move that will see it pay a 15pc tax rate or around $38bn to the US.

But bear in mind, it can reduce its US tax bill by offsetting it against taxes it has paid on this money in other jurisdictions.

If it has already paid €13bn to Ireland, that can be used to reduce its US tax bill. The tech giant has many options about how it handles its tax affairs. But the previous position where it would have to pay €13bn or nothing at all (until such time as the money is brought home) has now changed.

It could make a certain financial gain by trying to win the case and avoiding the interest and penalties. Not an insubstantial sum. Any decision to go ahead or not will have to be weighed up against the risk of losing the case and the fact the company will probably end up paying a broadly-similar amount to Ireland or the US government anyway. Apple may still feel it has a strong case, but over a dozen lawyers asked by Reuters two years ago said it was impossible to predict how EU courts would rule in an area that has not been tested before.

Then there is the reputational issue of whether Apple wants to continue with a tax appeal against the European Commission which could drag on, at a time when issues around corporate taxes are attracting bad press.

For Apple, it may also see a point of principle. It said it hasn't done anything wrong and it operated within the boundaries of the rules approved by a sovereign independent country - Ireland.

These are tricky issues to weigh up. But if there is little to be gained financially, and the issues are all historic, is it really worth it?

Bear in mind, too, that the billions in question have been gathered up and paid over by Apple into an escrow account late last year.

The money has "left the building" so to speak, which could influence Apple's future strategy in the case.

Apple CEO Tim Cook may feel that it is still a case worth fighting. Equally, he might have something interesting to say about the appeal case when he delivers the tech giant's first quarter earnings on January 29.

Last April the Government said the case would be heard by autumn 2018. It is probably not far away now. It has been suggested that other countries could lay a claim to some of this tax windfall if they showed that a portion of the tax should have been paid in their country.

Tax experts believe this would only be possible through existing normal transfer pricing frameworks between the firm and tax authorities in different jurisdictions. But because the profits are so historic, such a claim by another government does not seem practical or feasible.

Imagine the public sector pay claims, the calls for tax cuts, the clamour for investment if €14.4bn landed in the Exchequer as a windfall.

Holding a line on using it for a rainy day or paying down national debt would certainly 'test our mettle'.

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