#AppleTax: US NGO Citizens for Tax Justice backs European Commission decision

Matthew Gardner is the executive director of the Institute for Taxation and Economic Policy. Writing on the US 'Tax Justice' blog, Gardner outlines why he supports the European Commission’s findings and argues that the US Treasury should support rather than contest their conclusions.

In spite of Apple’s protestations, the European Commission ruling that the tech giant received billions in illegal tax breaks from the Irish government and must pay $14.5 billion in back taxes has been a long time coming.

Three years ago, the US Senate’s Permanent Subcommittee on Investigations issued a report that found Apple used a network of offshore subsidiaries to not only avoid paying the 35% US tax rate on its profits, but also to dodge Ireland’s 12.5% percent corporate tax rate. The commission’s investigation reveals more clearly how effectively Apple has used its Irish subsidiary to avoid taxes. In a press release, the commission stated that in 2014: “Apple paid a tax rate of just 0.005%on its European profits.”

Based on Ireland’s 12.5% rate, the EU ruling that Apple owes $14.5bn implies the company holds as much as $115bn in profit essentially tax free in Ireland. This figure represents just over half of the total $215bn in earnings that Apple holds in offshore subsidiaries, according to its latest financial filings.

Before the ruling, Citizens for Tax Justice estimated that Apple is avoiding up to $66bn in US taxes on these earnings, meaning that even if Apple paid the $14.5bn the EU Commission has declared it owes entirely to Ireland, the company would still be avoiding about $51.5bn in US taxes.

The new European Commission ruling finds that Ireland violated EU rules that prohibit giving tax breaks to specific companies. In particular, the commission says the Irish government issued two tax rulings that gave Apple the green light to shift most of its nominally Irish profits to a subsidiary that was a resident of no country, and therefore paid no income tax to any country. While the commission says the agreement is “perfectly legal” under Irish national laws, it is nonetheless “illegal under EU state aid rules, because it gives Apple a significant advantage over other businesses that are subject to the same national taxation rules.”

On its face, this looks like a $14.5bn tax windfall for Ireland. But the EU release makes clear that Ireland doesn’t have to be the sole beneficiary of this ruling, noting that: “If other countries were to require Apple to pay more tax on profits of the two companies over the same period under their national taxation rules, this would reduce the amount to be recovered by Ireland.” In particular, the EU points out that some of this tax penalty could go to the United States, rather than Ireland, “if the US authorities were to require Apple to pay larger amounts of money to their US parent company for this period to finance research and development efforts. These are conducted by Apple in the US on behalf of Apple Sales International and Apple Operations Europe, for which the two companies already make annual payments.”

However, the US government has not reacted to this news with anything resembling joy. Last week, President Obama’s Treasury Department preemptively released a report (PDF) arguing that the EU’s recent efforts to claw back illegal tax subsidies from large multinational corporations are a departure from prior law, and would undermine international tax reform efforts. And a Treasury spokesperson responded to the EU’s announcement today with a statement that the penalties against Apple “are unfair, contrary to well-established legal principles and call into question the tax rules of individual member states”.

This is an odd reaction, to say the least, given the incontrovertible evidence that Apple has systematically organized its Irish affairs in a way designed solely for tax avoidance. It’s doubly troubling given the high likelihood that much of Apple’s nominally Irish profits are really earned in the United States, and should be treated as domestic profits. Rather than criticizing the EU for taking on tax avoidance among their member countries, the United States should instead focus on collecting the taxes on the more than $2.4 trillion in earnings that Apple and many companies are holding offshore.

But the Treasury’s harsh reaction may reflect the inability of the Obama administration to unilaterally take the necessary tax reform steps to claim the nation’s rightful share of Apple’s unpaid tax bill. The administration received verbal blow-back from many members of Congress when it attempted to scale back corporate inversions via administrative action. It’s hard to imagine the current Congress requiring Apple, or any major US corporation, to pay taxes it has successfully avoided by shifting tens of billions of dollars in profits offshore each year.

The US Treasury and the Obama administration should remain steadfast and consistent in its efforts to crack down on corporate tax avoidance.

The EU’s finding reiterates what CTJ has argued for years: it’s entirely within the power of Congress to restore our corporate tax by ending deferral and requiring U.S. corporations to keep their US profits where they belong.

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