Tech Apple loses EU court battle over 13B euro tax bill in Ireland

For non-EU readers, note that taxation is explicitly not a competency of the EU (i.e. Ireland can set its tax levels to whatever it wants). The only thing in question here is whether it was applying the same taxation rules to all companies, as granting special exceptions to certain companies could be viewed as state aid (which is not allowed). Ireland claimed it wasn't, the current (over-)ruling says otherwise. This case is also specific to tax rules from many years back. AFAIK the rules have subsequently been tightened and the exemption no longer exists.

Some important context that are in every European media, but apparently not the American ones [1].

Apple said in 2017 that it had an effective tax rate of 21 percent on foreign earnings. The Commission said its effective tax rate on European profits was 1 percent in 2003 and 0.005 percent in 2014.

[Edit] To be fair to CNBC they did cover the tax structure Apple set up some years ago [2].

[1] https://www.politico.eu/article/commission-scores-surprise-w...

[2] https://www.cnbc.com/2016/08/30/how-apples-irish-subsidiarie...

> Apple, however, said in a statement: "The European Commission is trying to retroactively change the rules and ignore that, as required by international tax law, our income was already subject to taxes in the US."

My understanding is that the U.S.A. double-taxes both corporations operating abroad, as well as it's own expats. If this is true, then it's quite the remark to say _the country you're actually in_ is the one double-taxing you.

The fact that your "income was already subject to taxes in the US" isn't the fault of the hosting country.

It would just be really good if companies stopped avoiding tax. Most countries are already pretty much bankrupt - it's worth thinking about for every debt (US National Debt is $35.35 trillion!!) there is a rich person on the end of it with the loan as an asset earning interest.

If companies avoid tax and rich people avoid tax it means more tax for normal people who work for a living.

I found some rather troubling aspects within the ruling itself:

1. Retroactive application of arm's length principle

The Court's reliance on the arm's length principle, despite acknowledging it's not required by EU law, is problematic. As stated in paragraph 124:

  > "Article 107(1) TFEU gives the Commission the right to check whether the level of profit allocated to such branches... corresponds to the level of profit that would have been obtained if that activity had been carried on under market conditions."

This retroactive application of a principle not explicitly required by law at the time of the tax rulings is unfair and creates legal uncertainty for businesses.

2. Burden of proof

The Court's criticism of the General Court's approach to evidence, as noted in paragraph 245, lowers the burden of proof for the Commission in State aid cases:

  > "As the Commission stated in recital 441 of the decision at issue, its approach is based on an infringement of Article 107(1) TFEU, which has been part of Ireland's legal order since its accession in 1973, and not on a failure to have regard to the framework defined at OECD level."

This shift unfairly advantages the Commission in future cases and will lead to increased challenges to legitimate tax arrangements.

But, overall, yes, I get the concerns about legal certainty and applying rules retroactively. They're valid points. But when I weigh everything, I still think this ruling does more good than harm. It's a big step towards fairer taxes and more transparency in how big companies operate.

Yes, it might ruffle some feathers in the short term. But in the long run, it's setting us up for a tax system where everyone plays by the same rules – whether you're a small local business or a tech giant.

There's a separate ruling for Google that was released at the same time:

Docket: https://curia.europa.eu/juris/documents.jsf?num=C-48/22%20P

Ruling: https://curia.europa.eu/juris/document/document.jsf?text=&do...

And other news reports confirming the same:

https://www.reuters.com/technology/eu-court-upholds-googles-...

https://www.bbc.com/news/articles/cjw3e1pn741o

CNN also has links to both (summaries of the) rulings: https://www.cnn.com/2024/09/10/tech/europe-ruling-apple-tax-...

An important point that seems to have been missed by most of the comments: the reason Apple lost this case is not because of the profit shifting scheme itself, but rather than they did not set up the scheme correctly:

> ASI's 2014 structure was an adaptation of a Double Irish scheme, an Irish IP–based BEPS tool used by many US multinationals. Apple did not follow the traditional Double Irish structure of using two separate Irish companies. Instead, Apple used two separate "branches" inside one single company, namely ASI.[34] It is this "branch structure" the EU Commission alleged was illegal State aid, as it was not offered to other multinationals in Ireland, which had used the traditional "two separate companies" version of the Double Irish BEPS tool. Under the Double Irish structure, one Irish subsidiary (IRL1) is an Irish registered company selling products to non–US locations from Ireland. The other Irish subsidiary (IRL2) is "registered" in Ireland, but "managed and controlled" from a tax haven such as Bermuda. The Irish tax code considers IRL2 a Bermuda company (used the "managed and controlled" test), but the US tax code considers IRL2 an Irish company (uses the registration test). Neither taxes it. Apple's subsidiary, ASI, behaved like it was IRL2, it was "managed and controlled" via ASI Board meetings in Bermuda, so Irish Revenue did not tax it. But ASI also did all the functions of IRL1, making circa €110.8 billion[6] of profits from non–US sales. The EU Commission contest IRL1's actions made ASI Irish, and the functions of IRL1 over-rode the Bermuda Board meetings in deciding the "managed and controlled" test. The commission had not brought any cases against US multinationals using the standard double two separate companies Irish BEPS tool. (https://en.wikipedia.org/wiki/Apple%27s_EU_tax_dispute)

In other words if they had actually set up two separate Irish companies instead of just using two separate branches of a single Irish company, their tax scheme would have been fully legal and not considered state aid. (Since many other companies availed themselves of such a scheme.)

The Google judgment was also released by the CJEU today, but it was a separate judgment. I've found it by going to the CJEU website https://curia.europa.eu/jcms/jcms/j_6/en/ (or https://curia.europa.eu/ and then click on "en" for English), where official CJEU press releases about both the Apple and Google judgments were linked on the left under "News".

Here's the CJEU press release about the Google judgment: https://curia.europa.eu/jcms/upload/docs/application/pdf/202...

Inside that PDF press release, there is a link to to the case docket, including the final judgment and an abstract of the judgment: https://curia.europa.eu/juris/documents.jsf?num=C-48/22%20P

And here's the full judgment linked in the above docket: https://curia.europa.eu/juris/document/document.jsf?text=&do...

The full judgment is available in English and French; the abstract is available in French but not English.

I should also note that there were actually four CJEU judgments released today, not two. But the other two were unrelated to tech.

Somehow Ireland gets a 13 billion euro payday for illegally subsidising Apple so they do business in Ireland.

From discussions in the past, I was under the impression there was general sense that if Ireland should have legitimately taxed them to this degree. That ultimately the taxes owed should probably be paid out to the countries where the sale occurs. As one country reaping the rewards of the tax for the entire European operation would be bizarre, when that country just has a medium sized support/sales operation (which was what Ireland was originally collecting tax on).

Does this also have the knock on affect that these companies can now write off this tax so their owed US taxes are much less (assuming they ever repatriate these earning - which they have often avoided to avoid paying US tax)?

Anyways, writing the above shows me how much I don't understand about these cases.

Even if this sounds like a huge fine, this is effectively meaningless, even if they end up paying it. 13 billion, for a company with market cap of more than 3 trillion is around 0.4% of their cap.

Until these fines become meaningful, companies will just continue breaking the law and asking for forgiveness later, as the changes to their market cap can offset this fine in hours.

> "We always pay all the taxes we owe wherever we operate and there has never been a special deal," he said.

Ιf that is true it should be easy to prove. Letting them pay peanuts is an insult to the whole of EU by the Irish government

Direct link to the full text of the judgment:

https://curia.europa.eu/juris/document/document.jsf?text=&do...

Another article: https://www.politico.eu/article/commission-scores-surprise-w...

Full ruling: https://curia.europa.eu/jcms/upload/docs/application/pdf/202...

Fascinating, how does that work? Can anybody explain in simpler terms how that was legal to begin with?

> Both companies were incorporated in Ireland but not tax resident in Ireland. Those tax rulings approved the methods used by ASI and AOE to determine their chargeable profits in Ireland in relation to the trading activity of their respective Irish branches.

Good.

Not because I particularly dilike Apple or big US tech firms (I have a whole bunch of Apple stuff right here), but because Ireland has been able to undermine the tax regime of the whole EU, by giving these sweetheart tax deals to big firms, who can then run their entire EU business from there.

This gives an unfair tax advantage to the multinationals over homegrown EU companies, skewing the market.

Is it Apple's 'fault'? That's not really the interesting question here, IMHO.

I don't understand why this is Apple's fine and not Ireland's?

So Ireland double-dipped here by luring the tech companies, and now it gets the foregone tax anyway. Does feel a bit like the EU should get the cash, not the state that was responsible for it

It seems the zeitgeist has changed. When I first started using HN 5+ years ago, whenever you'd see a similar new, Americans and jump in and claim that this is just the lazy Europeans extorting the poor American companies. The reaction is very different these days.

Dupe: https://news.ycombinator.com/item?id=41498377

Why is it Apple that has to pay for what Ireland did wrong? Genuinely curious here, it's not like Ireland is some random dude on the internet selling stolen goods and Apple should've known better.

Can Apple simply exit Ireland effective immediately and claim they paid their taxes, and do not wish to be around for this new rule?

Isn't Ireland now effectively getting the penalty funds that their taxation malpractices caused in the first place?

This is how you tax these companies. They f around, they hand over part of their profit. Good.

Nice of them to announce it the day after a major launch. Barely any price action

Well, you gotta balance all that tax evasion with something.

What does "illegal" mean? Why is it in quotes? Did they break the law or not? If they didn't break the law, if they adhered to the deal they negotiated with Ireland, isn't this a dangerous precedent? You can just ignore deals because you (EU) said so?

Edit: Please downvote me if you must but also post a comment about why I'm wrong. Thanks!

It’s a drop in the bucket and cost of doing business.

Pocket change

I’m confused.

So EU runs Ireland’s tax system? What happened to sovereignty? How does this work?

Eventually Apple will pull out of Europe and I’ll be sitting back laughing my ass off.

Nice.

Maybe now the Irish government could do something about the housing crisis. Ah who I am kidding, they'll blow it all on fancy hats or some such.

Seems wrong that Ireland cheated the system to attract tech companies then also gets a huge payout.

prior to brexit, the UK lost a ton of US inward direct investment to Eire … Dell, Intel, Apple etc. the factors were Eire corporation tax was low and public policy was to footdrag in the attempts to set an EU minimum tax, fantastic lobbying by Irish representatives in Washington leveraging the big Irish diaspora, big subsidies that walked to the edge of the EU rules (as seen here), and an English speaking workforce with ability to bring in speakers of all national languages for EU wide customer support

meantime the UK civil service was gold plating the EU rules and then came the brexit disaster

As a eu citizen, what is the impact of this to me? Will this money be used for us? Nope. Some club of politicians will have a nice bonus, FAANG will be more aggressive against the EU. Look, if rules are broken ppl will have to be held responsible. But thats not entirey clear in this case.

Thanks again EU

That will hit Irish economy really hard. Good.

It seems that Ireland giving aid specific to Apple and not others is the crux of the issue? Not sure how that’s illegal.

This means that every company now needs a lawyer who understands the Treaty of Lisbon! Just in case some EU country tells them to do X, they now need to know if said country can actually say so! How is this a good thing?