The Golden Apple is Out of Reach

EU antitrust enforcer Margrethe Vestager (Forbes)

The large-cap tech companies (Apple, Amazon, Google, Microsoft, and Facebook) all have attracted fierce scrutiny, but nowhere more so than in Europe. [Disclosure: a good chunk of my retirement portfolio is invested in these companies both directly and indirectly through funds and ETFs.] The authorities object to these companies creating legal structures that minimize taxes.

It has long become clear to this writer that the European Union tries to extract huge tax awards by getting courts to apply tax "principles" retroactively to these successful companies, despite their following the letter of the law. That is why it was gratifying to see Apple win a $14.8 billion tax case last week in European court: [bold added]

The case stems from a 2016 decision by the European Commission, the bloc’s top antitrust enforcer, which said that Ireland must recoup €13 billion in allegedly unpaid taxes between 2003 and 2014, money the commission said constituted an illegal subsidy under the bloc’s strict state-aid rules.

The General Court swept aside that reasoning, saying it annulled the decision because the commission had failed to meet the legal standards in showing that Apple was illegally given special treatment.

The 2016 decision against Apple was one of Ms. Vestager’s first big broadsides against tech companies in her role running the EU’s competition enforcement, earning her the nickname “tax lady” from President Trump. She later issued Google three fines totaling $9.4 billion, and launched formal antitrust probes into Amazon and Apple. She is now also responsible for tech regulation and is considering imposing a digital tax on tech giants...

A central issue in the Apple case was whether two Irish tax rulings granted to Apple in 1991 and 2007 gave a form of special treatment to the company, or whether they just reiterated an interpretation of Irish tax law as it was applied more generally.

Those rulings allowed two Irish-registered Apple units to attribute only a small sliver of some $130 billion in profit to Ireland in an 11-year period. The commission said all that revenue should be attributed to Ireland, but the Irish government and Apple say they split the profit reasonably, given that almost all of Apple’s intellectual property is developed in the U.S., not Ireland.

In Wednesday’s ruling, the General Court said that, despite the gaps in the contested tax rulings, the commission hadn’t proven the Irish government granted a special advantage to Apple that was unavailable to other companies in Ireland.

The European Union will now have to do the hard work of crafting new laws that will achieve their goals and not trying to re-interpret the past to try to solve present needs.