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Apple (NASDAQ: AAPL) and the €13BN Question

Adrian Ip
Posted Aug 30, 2016
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Welcome to the new world. A world in which the lines between tax optimisation, tax avoidance and tax evasion are becoming increasingly blurred, as Apple (NASDAQ: AAPL) today found out.

As I’m sure most of you are aware by now, today the European Commission ruled that Apple has benefited from what amounts to “Illegal State Aid” under EU law and is ordering the Irish government to issue the firm with a bill for back taxes amounting to €13bn, potentially plus interest.

Key points of the judgement:

  • Largest ever tax clawback attempt by the EU.
  • State Aid rules continue clearly attempting to overrule nationally sovereign tax systems.
  • Ireland ordered to clawback €13bn in back taxes.
  • Effective tax rate for Apple in Ireland during the period in question less than 1%.
  • Apple has cash and equivalent reserves of approximately $230bn sitting outside the US.
  • Apple is also refusing to repatriate its foreign cash reserves to the US as taxes in its home country are “not fair”.
  • Apple to place an as yet unknown amount in escrow in the event that it ultimately has to pay.
  • No restatement of past earnings as yet.

For its part, Apple has published “A Message to the Apple Community in Europe” which attempts to paint its involvement in Ireland as one part mercy mission (describing the high unemployment and low economic investment in Cork, Ireland when Apple opened its office there in 1980) and one part good European corporate citizen contributing jobs and money to the EU both directly and via third parties such as app developers etc.

What is perhaps more interesting than the rhetoric and spin of the caring/sharing letter is the FAQ Apple has published for investors which quite stunningly states that:

“We do not currently expect this decision to have an impact on our tax rate going forward”

Given the fact that both Ireland and Apple (NASDAQ: AAPL) are planning to appeal the ruling, it certainly sounds fairly confident that it will ultimately be allowed to continue with current practice.

Ultimately, Ireland’s already low normal corporation tax rate of 12.5% was blown to smithereens here and according to the Commission, minutes taken at meetings between the Irish government and Apple show that concerns over employment (Apple currently employs almost 6,000 people in the country) may have had an influence in allowing the company to get away with what is ultimately a pittance of a tax rate.

It’s important to note that European Competition Commissioner Vestager has been very careful in her language when asked about Apple. As she observes, Apple, (as with numerous companies worldwide) has a duty to shareholders to optimise its affairs where possible and legal. There is no hint that the firm has broken the law here, simply that the deal it was offered by Ireland amounted to what is effectively a subsidy of the company in return for jobs and other investment in the country and that this effectively constituted the state (Ireland) helping Apple unfairly.

Software Development

It’s not just about Apple (NASDAQ: AAPL)

Both the US and EU have long lobbied Ireland to change its tax structure and the much vaunted “Double Irish” loophole which allowed intellectual property to be exploited to such a ridiculous extent by many multinational corporations. Ireland did in fact pass a law to do away with the scheme in 2010 although this only prevented new firms from using it and existing firms were exempted. Given that Apple had used the system since the 1980’s, it was free to carry on at will.

As such, Ireland finds itself in a difficult position given that it has long offered similar sweetheart deals to large companies in an effort to attract investment. It is not the only EU country which has been ordered to demand more tax revenue from companies which it has special arrangements with, all of these cases are also pending appeals so there is as yet no precedent which has been set.

The difficulty many of these companies have is that they have such huge cash stockpiles in tax havens and are refusing to repatriate the funds to their home country (the US in Apple’s case) because they view the tax rates in the US as unfair and as such are of course pushing US authorities for some kind of repatriation amnesty which would allow them to bring the money back without paying full tax on it. If you’re a government in need of cash, how long do you wait before agreeing to such a deal in order to get some cash in the coffers?

State Aid is a tricky area. It’s one that both the EU and US have played to various advantages and argued over for many years, not least in the long term Boeing vs. Airbus debate which has seen both sides throw accusations of unfair state aid at their respective counterparts and companies. This latest instalment will only further complicate the global back story. A back story which recently saw the US treasury hitting out at the EU and issuing thinly veiled threats of retaliation if it feels US companies are being unfairly targeted by the EU Commission.

Why here Sir, let’s see how this fits…

Additionally, the other slowly boiling point of contention which much of this ties into is the long stalled TTIP deal between the EU and US which the German Vice-Chancellor recently said has effectively failed but that nobody is really admitting it given that in 14 rounds of talks, not a single chapter of the 27 being discussed had been agreed.

In recent years, there has been a great deal of increased scrutiny on the behaviour of global multinational behemoths who are able to optimise their tax affairs to an extremely high degree. Companies such as Fiat, Apple, Google, Amazon and Starbucks to name but a few have been optimising their tax liabilities globally it would seem to death. So called sweetheart deals which basically grant non-standard tax rates to certain companies with special/complicated setups are the latest battleground as the world attempts to make sure that global multinationals pay their fair share.

However the question arises, what is their fair share and to whom is the tax money owed?

Court cases and regulatory risk have to increasingly be on the radar of many of these multinational corporates and although Apple has more than enough cash to pay the monies in question if it is ultimately required to do so, the company is trading down about 0.76% today. As more of the world attempts to stamp out tax havens and sweetheart deals, companies which are stockpiling huge cash reserves and optimising their affairs to no end are increasingly at risk of actions such as this by the EU. A spat between the largest trading block in the world and corporate/governmental America is the last thing that’s needed in unsettling times, but the EU has fired some very effective shots across the bow of the corporate world (not just the US corporate world either) and said it will not stand for such behaviours. If companies want to do business in the European Single Market, they’d better start getting used to the new normal. This will ultimately take years to play out, but it will be an interesting battle.

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