Apple and the EU

Apple and the EU:  Summary of the EU's latest ruling against Apple and the EU's proposed reforms of corporate taxation.

As previously covered in this blog, the EU ruled against Ireland granting tax benefits of up to €13 billion to Apple in violation of the State aid rules.  In their law review article, "Apple State Aid Ruling: A Wrong Way to Enforce the Benefits Principle?", Professor Reuven S. Avi-Yonah (Michigan Law) and Gianluca Mazzoni (SJD Candidate, Michigan) detail how Apple was able to utilize Ireland in reducing its tax liabilities.  The most notable facts of Apple's Irish arrangement as uncovered by the article are:

• Apple's market capitalization as of October 7, 2016 was $614.61 billion dollars (or $612.66 billion as of the third quarter of 2016)
• Apple used cost sharing agreements to shift profits from U.S. Developed intangibles to its Irish subsidiaries.
  • The article briefly discusses how cost sharing agreements (as used in pharmaceutical companies) should deter transfer pricing/revenue shifting because in pharmaceutical companies it is a gamble as to whether a particular drug will be a blockbuster drug and the pharmaceutical companies would risk losing R&D costs shifted to its offshore subsidiary if the drug didn't have profits generated in the offshore subsidiary.
  • The article states that this is not the case in technology companies, like Apple, because of Apple's track record of producing blockbuster technological products.
• Apple utilized licenses of Apple's brand and intellectual property by its Irish subsidiary's (Apple Sales International, ASI's) subsidiary retail locations throughout Europe to shift royalty payments from the retail locations to ASI instead of paying taxes on the income in the European countries.
  • The article notes that the profits from other EU nations are paid to the Irish subsidiary as royalty fees for licensing Apple's logo and branding to the EU subsidiaries.

The article also discusses the reason why Apple was able to utilize its Irish structure to shield income from taxation.  The primary reason for Apple's ability to set up this structure are as follows:

• Ireland and EU's lack of withholding tax on receipts fro EU member states.
  • The article highlights that the commentary regarding EU's position to not implement a withholding tax on receipts from EU member states could create a tax haven for EU profits to be shielded from tax because the countries where the profits are earned do not impose a withholding tax on the profits leaving that country and coupling that with certain countries (Ireland and Cyprus) that do not tax money not directly earned in that country's borders allows a sophisticated company to avoid tax on profits made in EU countries.
• In 1997 U.S. adoption of Check the Box regulations.
  • The article points out that in 1997 under the direction of the U.S. Treasury and the Clinton Administration, Congress adopted the "check the box" regulations.  Check the box regulations allowed U.S. multinational corporations to treat (for US tax purposes) foreign subsidiary corporations as transparent and not separate taxable entities.  This also allowed the foreign subsidiaries to transfer royalties and interest payments between each other without generating tax (called Subpart F) on the transfers.
  • The article also makes the point that at the adoption of the check the box rules, the U.K. and Germany objected to this position because it would allow U.S. multinational corporations to utilize earnings stripping to reduce taxable income in their respective countries.  Congress at the urging of the U.S. multinational companies (namely the argument that reducing the taxable income in foreign countries would lead to larger amounts of tax paid in the U.S.) enacted the check the box regulations.
  • The article also, with the advantage of hindsight, makes the argument that the check the box regulation over time has shown that the U.K. and German objections were warranted because U.S. multinational corporations have stripped earnings from EU countries and have not resulted in more U.S. taxes paid by the sameU.S. multinational corporations.
  • The article points out that the check the box regulations created such a huge loophole (estimated $86.5 billion over a ten year period) that early on President Obama and the U.S. Treasury advocated for the reformation of the check the box regulation.  However, after intense lobbying by business associations, the Obama administration has since abandoned the check the box regulation reforms and extended the check the box regulation treatment for another 5 years.
• Exploitation of difference between Irish and U.S. tax residency rules
  • As stated in the article, Irish laws taxes corporations for only income earned in Ireland.  U.S. law taxes income earned worldwide for companies that are resident in the United States.  This creates a gap in taxation for an Irish company with income earned outside Ireland, which as the article points out was exploited by Apple by also negotiating a corporate rate of less than 2% for its Irish income.

Finally, the article discusses how the EU Commission reached its determination that Ireland provided improper state aid by granting Apple such a sweetheart deal. The article summarizes the EU Commission position as follows:

• Was there state aid provided by Ireland to Apple?
  • The EU Commission concluded yes, because a benefit was conferred on Apple, and was not conferred on all other companies.
• The article states that the EU Commission found fault with the Irish determination because it was a result of a negotiation and not merely a summary of the comparable transactions.
• The article also stated that the EU Commission questioned the methodology (Transactional Net Margin Method) chosen to determine the appropriate transfer price because the terms were not defined.
• The article then stated that the EU Commission questioned the inconsistencies in the transfer methodology selected by Apple; and
• The article stated that the EU Commission challenged the open ended duration of the ruling in Apple's favor.

Note: Apple has utilized this structure since the 1980s and as Tax Justice discusses, Apple continues to use this structure in 2016 to shield income from taxation in the U.S. based on Apple's most recent quarterly earnings report.

However, there might be a change to this structure starting in 2020, as Ireland has passed legislation in 2013, which took effect in 2015 for newly incorporated companies and in 2020 for existing companies, that in order to incorporate in Ireland the company must also be a resident of Ireland (meaning that the income received by Apple's Irish subsidiaries from its EU subsidiaries would be taxed in Ireland at 12.5%). See this Guardian article.

Additionally, the EU Commission has also proposed corporate tax reforms to address continued tax avoidance by multi-national corporations.  The EU Commission's proposals are as follows:

• Common Consolidated Corporate Tax Base
  • The EU Commission is proposing to treat all profits earned in EU countries as one taxable base, so that multi-national won't be taxed separately by each EU member nation.  This proposal purportedly allows a corporation to offset losses in one EU country with profits in another EU country and provides one joint tax on the profits. This proposal also attempts to address profit shifting from one EU country to another in an effort to seek a lower or advantageous tax rate.
• Improved Mechanisms to resolve double taxation disputes
  • Currently the EU has a double taxation dispute resolution only addressing transfer pricing.  This proposal by the EU Commission hopes to provide a timely response to companies seeking relief from EU members double taxing the same income in both EU member nations.
• Measures to tackle tax loopholes with non-EU countries.
  • EU Commission proposes to address tax gaps between EU nations and non-EU nations which have been exploited by companies to reduce tax.  One key example is the Irish-US tax gap implemented by Apple to avoid taxation on its EU revenues.

Whether these proposals will curb aggressive tax avoidance by multi-national corporations is questionable. But the real question is: What are Congress and the IRS/U.S. Treasury proposing to address the existing tax gap (much of which is due to U.S. multinational corporations and their profit shifting (earnings striping)/transfer pricing/base erosion/inversions practices)?

If you have specific and credible evidence of a corporation's use of transfer pricing to avoid paying its tax liabilities you should consider filing a tax whistleblower claim.  Contact us to see if your information would permit you to receive a 15-30% award of the amount of taxes, penalties and interest collected by the IRS on your transfer pricing tax whistleblower claim.

Taxes and the Presidential Race

With the popular vote for President looming, there has been great debate over each candidate’s tax policy and the potential impact of their proposals. This blog has even attempted to outline the tax policies and provide analysis of the proposals. 

Recently, as found in this Forbes article, the candidates had their tax advisors debate their respective policies at the Tax Policy Center sponsored debate on October 13, 2016. 

As summarized by Forbes, Clinton’s plan would: “create new subsidies for working families that are caring for aging parents or children or have large medical expenses, significantly raise taxes for high-income households and businesses, and only modestly reduce the deficit.  See Tax Policy Center’s analysis of the Clinton tax plan.

Contrasting this is Trump’s plan, as summarized by Forbes, would: “reduce revenue by $6.2 trillion over 10 years, without accounting for macroeconomic effects and added interest costs. It would cut taxes for most households, but focus the great bulk of its tax reductions on the highest income households. Under his plan the highest income 1 percent of households would enjoy nearly half of the benefits of his tax cuts.”  See Tax Policy Center’s analysis of the Trump tax plan.

Criticism of Donald Trump’s Plan:

According to a NYU tax law professor’s paper, Lily Batchelder’s, Trump’s plan would increase the tax liabilities of “millions of low and middle income families with children [namely, 7.8 million families with minor children], with especially large tax increases for working single parents” See also this Washington Post article outlining the problems with Trump’s plan. 

Ms. Batchelder’s position is that by removing personal exemption in Trump’s plan, Trump’s plan would actually increase the tax burden on married persons with at least 3 children, and unmarried persons with 1 child.  She also argues that removing the head of household status would increase the tax burden on unmarried persons with one dependent. In addition to removing the personal exemption and head of household filing status, Ms. Batchelder argues that the bracket increase of the lowest tax bracket would increase the tax burden on all taxpayers for the first “$9,000 to $18,000 of their taxable income.  Finally, Ms. Barchelder discredits the Trump plan’s estimate of saving because as she argues the deduction and credit for child care won’t be effective for low and middle income families because even with the deduction and credit, the deduction and credit fail to compensate the families for the increased tax burden attributable to the other Trump proposals.

Contrasting Ms. Batchelder’s position is Steven Miller’s (Trump national policy director) analysis, which can be found in the Washington Post article.  According to Mr. Miller, Ms. Batchelder’s analysis fails to properly account for the $500 per child match for child care credit proposed under the Trump plan.  Mr. Miller also states that another error in Ms. Batchelder’s analysis is that it fails to account for the “effects of the tax-free spending on both children and elderly dependents that is addition to either the new deduction or those in the current law.”  Mr Miller also stated that the Ms. Batchelder’s analysis fails to account for the benefits to economic growth which will be generated by the Trump plan. Finally, Mr. Miller stated that the Trump plan would instruct the the Congressional committees implanting the changes to ensure that the Trump plan does not raise the taxes on law or middle income earners.

Criticism of Clinton’s Tax Plan:

While analysts have stated that the Clinton plan would increase taxes on the rich and big business, one key criticism is that the Clinton plan would further complicate the tax code instead of making the tax code simpler.   See this NY Times article.  As stated in the article, Clinton’s plan wouldn’t eliminate the loopholes, which Trump has taken advantage of (allegedly not paying taxes on his income due to carryover losses, see this NY Times article).

Another criticism of Clinton’s plan it that it isn’t a sweeping overhaul of the tax code.  As stated by Alan Cole, an economist with the Tax Foundation policy center, “It‘s more tinkering at the edges,I wouldn’t call it reform. There aren’t any major reformulations to make the code simpler or fairer. It’s basically just a tax increase” for the top income bracket.  See this NY Times article.  Clinton’s plan also fails to address the corporate tax rate (at 35%, one of the highest in the developed world) and proposes a change to capital gains to encourage corporate governance changes instead of addressing corporate governance through targeted legislative policy changes.  See this NY Times article.

Conclusion:

No matter which candidate you support, there are two stark contrasts to their tax policies: One is choosing to tax the über rich while keeping most of the existing taxing structure and using the additional revenue for social programs [CLINTON].  While the other candidate is choosing to lessen the burden on the top to spur economic growth, and instead place the burden on the middle and lower class [TRUMP].

The question that continues to loom is how will these policies affect the IRS and their enforcement of the code, post-election.

If you know of someone not paying their taxes (a minimum of $2,000,000 in taxes) and want to report the individual/corporation for this failure, Contact us to file a claim for an award from the IRS.  The IRS will pay an award (between 15-30% of the taxes collected) for specific and credible information the IRS uses in assessing additional tax liability against taxpayers. 

Is the IRS retaliating against its own whistleblower?

As found in this article in the Washington Post, the IRS is facing questions as to whether it is retaliating against one of its own attorneys whom allegedly blew the whistle on how the IRS failed to identify "a multibillion-dollar corporate tax credit scheme involving a source of energy informally known as black liquor."

According to the Washington Post, William Henck, an attorney working inside the IRS Office of Chief Counsel for over 26 years, (see the powerline blog for a first person account by Mr. Henck) publically questioned the IRS' policy on refundable biofuels tax credits designed to foster new technologies but were being used by paper companies to receive huge refunds for burning pulp byproducts (known as "black liquor") since the 1930s.  See Washington Post article that quotes Henck.

The latest article and Henck's own account reflect the IRS auditing the Henck's returns and the IRS placing Henck's status at the IRS in limbo with the IRS and Treasury Inspector General's (TIGTA) office failing to properly investigate whether Henck committed any wrongdoing.

This account by an insider at the IRS raises serious questions about the IRS' commitment to investigate tax fraud even when reported by an attorney among its ranks.  It echoes an account by Jane Kim, a 10 year veteran chief counsel attorney in the Small Business/Self Employed Division outlining abuse at the IRS which resulted in tax cheats getting away without paying their taxes.  See this Tax Analysts' article.

This story also raises questions how committed the IRS is to investigate claims raised by whistleblowers under its Tax Whistleblower Program.  Despite Lee Martin's (Director of the IRS Whistleblower Office) statements to the contrary (see this blog on statements made by Lee Martin during Tax Whistleblower Bar call), this account can and may already have a chilling effect on the number and quality of submissions to the Whistleblower Office.

Nonetheless, if you know of tax fraud or tax violations committed by an individual or a corporation, and wish to report the violations to the IRS, contact us to prepare your tax whistleblower claim.  The IRS pays between 15-30% of the collected proceeds (tax, penalties, interest and additional amounts) for specific and credible information the IRS uses to prosecute the alleged tax violators.