Only Losers Pay Taxes: Apple and the Ingenuity of Tax Avoidance
July 15 was a very good day for Apple. Not so much for the European Commission, nor for the Organisation for Economic Co-operation and Development (OECD). What happened? In 2016, the European Commission (EC), following a lengthy investigation, ruled that Ireland had granted Apple “illegal tax benefits” that “substantially and artificially lowered the tax paid by Apple in Ireland since 1991.” The taxes “saved” Apple some €13 billion ($15 billion). The Irish government set up and escrow account at the cost of €3.9 million in consultancy and other fees as Apple appealed to courts in Luxembourg.
On July 15, the EU General Court rendered its landmark verdict. In a stinging rebuke of the European Commission, the court charged that the EC had failed to demonstrate “’to the requisite legal standard’ that Ireland’s tax deal broke state-aid law by giving Apple an unfair advantage.” The Apple case was supposed to be a hallmark for the EU Competition Commissioner Margrethe Vestager’s “crackdown on preferential fiscal deals for companies” by member states. In the words of a tax lawyer quoted in the Irish Times, the decision marked a “comprehensive defeat for the Commission.”
Apple Tax Case and Investment in Europe
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At the same time, it was a significant setback for the OECD’s initiative on “base erosion and profit shifting” or, put in less arcane terms, tax avoidance. Engaging top law firms, the new tech giants such as Apple, Amazon and Google have mastered the fine art of avoiding as much of the tax burden as possible. There are numerous reasons for this development, greed probably topping the list. On a more structural level, however, it is to a large extent the result of the process of financialization, which has been the dominant game worldwide over the past several decades.
Part of the Package
Financialization fundamentally changed corporate rationale, with shareholder value becoming the new doctrine. Shareholder value holds that the primary metric of success lies in the ability of managers to increase shareholder return. Forget about corporate responsibility, forget about corporate outreach to the community: The only thing that counts is raising a company’s stock value no matter what.
Tax avoidance is part of the package. Over the past few decades, Fortune 500 companies have devised a range of ingenious strategies that allow them to legitimately avoid paying taxes. Many are so opaque that even specialists have a hard time figuring out what is happening, how and where. One of the more exotic strategies is the “double Irish with a Dutch sandwich.” Investopedia defines it as a tax avoidance scheme that “involves sending profits first through one Irish company, then to a Dutch company and finally to a second Irish company headquartered in a tax haven.”
A second scheme that was popular in the United States a few years ago is corporate inversion. This “occurs when a U.S.-based multinational corporation restructures itself so that the U.S. parent is replaced by a foreign parent and the original U.S. company becomes a subsidiary of the foreign parent.” Ireland, Bermuda, England and the Netherlands were among the popular destinations.
The case of Apple provides a perfect illustration of the ingenuity behind tax avoidance. The scheme hinges on Ireland’s sweetheart deal with Apple, which allowed the US-based company to avoid Ireland’s corporate tax of 12.5%. Instead, Apple paid as little as 0.005% in taxes. The profits Apple made in Europe were transferred to Apple subsidiaries located in Ireland — perfectly legally — and the taxes were paid on the basis of Ireland’s rate instead of the country where Apple products were actually purchased. This saved Apple billions of euros.
It needs mentioning that Ireland joined the Apple lawsuit. After the verdict, the Irish government hailed the outcome as a victory for Ireland, which, in the process, lost €13 billion in tax revenue — a rather perverse sense of accomplishment, given the dramatic impact COVID-19 has had on the country’s economy and public life. Like elsewhere in Europe, the measures introduced by the Irish government caused a dramatic surge in unemployment and drove the economy into a recession. It is likely to take years to recover from the pandemic. Under the circumstances, the money would have been quite welcome.
The Curious Case of the Netherlands
Over the past several decades, avoiding taxes has become big business. Estimates from 2017 suggest that tax avoidance and profit shifting by multinational corporations amounted to a global loss of somewhere around $500 billion. Not surprisingly, tax havens have multiplied throughout the world. To be sure, there are exotic offshore locations that have specialized in sheltering money, such as the Cayman Islands, Samoa, Mauritius or the British Virgin Islands.
This, however, is only half of the story. The case of Ireland shows that advanced capitalist countries are hardly innocent. In fact, Europe — and even the European Union — abounds in tax havens, from the British island of Jersey to Luxembourg, Liechtenstein and Malta to the Netherlands.
Recently, the Dutch have provoked much resentment among the EU’s southern members. At the height of the pandemic in Italy and Spain, both countries called on the member states to show solidarity with its southern neighbors. One of the ideas was to issue so-called corona bonds, which would have combined securities from different countries and “mutualized” debt. The idea was vigorously promoted by Italy but equally vigorously rejected by Germany and the Netherlands, alongside Finland and Austria, collectively known as the “Frugal Four.”
The connotation was obvious. The fiscally responsible members were loath to subsidize countries they considered frivolous spenders — even in a situation that brought Italy to its knees. The Germans are accustomed to suspicion and hostility from other EU members. But the Dutch? After all, the Netherlands is a small country, known for their openness and liberal attitudes on sex and drugs. COVID-19, however, has changed these perceptions, at least in the southern parts of the EU.
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And for good reasons. Not for nothing, one of the most egregious tax avoidance schemes has “Dutch” in its title. It turns out that the Netherlands is an important tax haven right in the heart of the EU — a tax haven that has done considerable harm to other member states. Earlier this year, the Tax Justice Network claimed that the Netherlands “cost EU countries $10bn in lost corporate tax a year.” Analysis revealed that US firms in Europe, instead of declaring profits in the EU countries where they were generated, “shifted billions in profits into the Dutch tax haven each year ($44 billion in 2017) where corporate tax rates in practice can be under 5 per cent.” In fact, “the Netherlands’ low effective tax rate and its frequent use as a conduit for profit shifting to other corporate tax havens like Bermuda, results in a huge transfer of wealth out of Europe and into the offshore bank accounts of the world’s richest corporations and individuals.”
Estimates for Italy alone were that the country had lost €1.5 billion in revenue a year, “equivalent to more than twice the annual cost of running San Raffaele Hospital, one of the largest hospitals in Italy with approximately 1350 beds.” Under the circumstances, Italian ire and disenchantment with the EU at the height of the pandemic, which cost the lives of thousands of Italians and paralyzed life in the country, are more than understandable. In this sense, the Apple verdict is nothing more than a Pyrrhic victory for Ireland and like-minded members of the European Union.
The pandemic has drastically illustrated the importance of solidarity. Strategies that cater to the narrow interests of shareholders systematically subvert solidarity. Under “normal” circumstances, that might be fine. These days, it is disastrous, not least because the notion of shareholder value (aka individual egoism) has penetrated every aspect of social life. Margaret Thatcher once remarked that society did not exist — there were only individuals and families. The disastrous current state of the US and Britain is a blatant indictment of this kind of thinking.
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy. More
