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Comment by akvadrako | Hacker News Reader

The "special deal" the EU is claiming exists might be legal according to Irish tax law, but that doesn't matter because according to them,

"it gives Apple a significant advantage over other businesses that are subject to the same national taxation rules"

and

"On this basis, the Commission concluded that the tax rulings issued by Ireland endorsed an artificial allocation of Apple Sales International and Apple Operations Europe's sales profits to their "head offices", where they were not taxed. As a result, the tax rulings enabled Apple to pay substantially less tax than other companies, which is illegal under EU state aid rules. This decision does not call into question Ireland's general tax system or its corporate tax rate."

From http://europa.eu/rapid/press-release_IP-16-2923_en.htm

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I agree with you about "EU is claiming exists might be legal according to Irish tax law, but that doesn't matter [to the EU]", and your source is helpful.

I think if you read the actual claim they make, and then you go read the description of the Double Irish accounting trick on wikipedia, you'll notice that to the untrained eye (such as mine), there's nothing special about the deal that Apple is getting; we are publicly aware of dozens of transnationals that get that deal, and there are probably hundreds or thousands.

The EU's claim, I think, is not that the deal is special in its entirety, but that Ireland's ruling on the exact fiddly details of how profits are allocated to different Apple subsidiaries is, uh, irregular. It's a pretty technical accounting point.

e.g. the following assertion, from Vestager, some months ago: "This is not about transfer pricing, it is about allocation of profits so it is different to the decisions on Starbucks and Fiat".

http://arstechnica.co.uk/tech-policy/2016/08/apple-must-pay-...

In standard terms, from discussing this with several tax accountants in Ireland, the issue lies in

Ireland applied 13.5% tax on a certain percentage of the profits, those declared in Ireland at the time, but did not apply it to all the profits. Although the book-keeping was done in an Irish company the sales where not all in Ireland. At the time Ireland sought clarification from the EU on how the tax should be applied, and were told they could only tax the profits generated in Ireland. Now, after discovering there is a sum of money in off-shore accounts that had not had the tax deducted, they have told Ireland to retrospectively apply the 13% tax on all profits unless another EU country could claim the profits were generated there.

So the original ruling was to use Ireland as a tax collector that the rest of Europe could then ask for the taxes they were due.

It seems that the Irish gov are seeking to overturn the original ruling as, according to the original information sought at the time, they were not doing anything illegal. In hindsight the accounting irregularity, refereed to as the double Irish, meant that Apple could accumulate these profits. The main issue is that these monies have not been declared in any EU country, so now because of the EU's ruling Trump has decided it belongs to America because American companies should only declare profits in America :D

Okay, I've looked into this a bit deeper since you've made me curious. I've read through the original ruling here:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A5...

It seems the main argument seems to be that the tax ruling from Ireland to Apple was not based on objective criteria but more of a negotiation like "we'll give you 1000 of jobs if you give us a discount". It seems reasonable to me to treat every ruling on that basis as "special treatment", even if they are commonly given.

To quote: -------------------- The Commission notes, in the first place, that the taxable basis in the 1991 ruling was negotiated rather than substantiated by reference to comparable transactions. Moreover, according to the excerpt reproduced at recital (37), the authorities did not seem to have had the intention of establishing a profit allocation based on transfer pricing. Instead, according to that excerpt, Irish Revenue accepted the calculation of profit attributable to the branch of AOE on the basis of actual costs without this choice being reasoned in any way. The fact that the methods used to determine profit allocation to ASI and AOE result from a negotiation rather than a pricing methodology, reinforces the idea that the outcome of the agreed method is not arm’s length and that a prudent independent market operator would not have accepted the remuneration allocated to the branches of ASI and AOE in the same situation, which serve as a basis for calculating the tax liability. -------------------

They then go on to mention many irregularities with the ruling which seem to be reverse-engineered to get a desired tax basis, instead of based on the economic reality.

>The EU's claim, I think, is not that the deal is special in its entirety, but that Ireland's ruling on the exact fiddly details of how profits are allocated to different Apple subsidiaries is, uh, irregular. It's a pretty technical accounting point.

Yes, the claim is that it is "irregular" in the sense that Apple got it and other companies may not get it. That's the special deal.

Whether or not the EC is right is for the court to decide. But the fact that the ruling is on the question of a special deal means that it cannot at the same time be a ruling on the compliance of Irish law with EU law.

> I think if you read the actual claim they make, and then you go read the description of the Double Irish accounting trick on wikipedia

Apple doesn't actually employ the double Irish as traditionally defined - the second half of the double Irish arrangement involves transferring profits to a company outside of Ireland (typically in a Caribbean tax haven). Apple doesn't do this. Their overseas profits remain in their Irish subsidiary, where they have a very low tax rate (which is what is being challenged by the EU).

I think, ironically, that if Apple had fully implemented the double Irish arrangement (like many other multinational companies), the EU commission would not be able to go after Apple using this "favorable treatment" line of inquiry.

This sounds like dispute between Ireland and EU. Please remind me why is Apple dragged into this ? Specifically laws.

There is also the concern of how 13B Euros of Apple will-be/have-been seized/escrowed for the duration of the case which may takes years. In case EC loses, will EC/EU pay to Apple for temporary loss of their property ?

You can start by reading the sources in other comments here. This is a ruling about a deal between Apple and Ireland and how it is structured to minimise tax and avoid tax in other countries.

The Commission, in simple terms, makes sure that a single market doesn't mean that one country helps companies avoid tax in other countries while still allowing completely free trade.

And like other comments have suggested. You cant sue for following the laws. If EC/EU does not like laws then change the laws. If EU does not like Ireland laws then kick Ireland out. But holding 13B euros hostage cannot be tolerated.

You are simply mistaken.

Ireland agreed to obey EU rules when joining.

> You cant sue for following the laws.

Ireland was not following the laws

> Please remind me why is Apple dragged into this ?

Because if Ireland "loses", then Apple owes 14B Euro. So, Apple is an interested party.

> This sounds like dispute between Ireland and EU. Please remind me why is Apple dragged into this ? Specifically laws.

Yes, like all the other rulings regarding the Article 107, the infractor is the state giving illegal aids.

And the companies are "dragged" because they were given an illegal advantage over others companies and that advantage should be voided

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