Apple windfall is ‘fool’s gold’, former IDA chief warns

Padraic White says ruling marks latest attempt by EU to get greater control over Ireland’s corporate taxes - and must be contested

The EU Commission’s ruling that Ireland gave illegal State aid to Apple represents the culmination of decades of attempts by the EU Commission to get greater control over member States corporate taxes. (Photograph:  Yui Mok/PA Wire)
The EU Commission’s ruling that Ireland gave illegal State aid to Apple represents the culmination of decades of attempts by the EU Commission to get greater control over member States corporate taxes. (Photograph: Yui Mok/PA Wire)

The EU Commission’s ruling that Ireland gave illegal State aid to Apple represents the culmination of decades of attempts by the EU Commission to get greater control over member States corporate taxes.

Ireland has repeatedly resisted these attempts to have the Treaty changed from the need from unanimous decisions by members states on corporate tax issues - which gives Ireland a veto - to majority voting which would give the Commission real prospects of bringing about a tax regime which it wants .

Corporate tax harmonisation has been the elusive objective of the Commission bureaucracy and has been repeatedly frustrated by a number of member states including Ireland .

I think its fair to say that every time a major EU Treaty is being re-negotiated they make an attempt to remove the member state veto on corporate taxes .

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There was massive pressure on Ireland in the negotiations in the lead up to the Nice Treaty signed by leaders in February 2001 to concede majority voting on corporate tax . The position of the Irish Government then and all Governments since has been to declare the maintenance of unanimous voting on corporate tax as a vital national interest .

The EU and indeed many members states have always opposed Ireland’s long history of low taxes introduced in 1955/56 to encourage foreign investment .

Then there was zero tax on profits from all export sales - it was designed to encourage export based investment .

When we became members of the EU in 1973, the favourable tax treatment obviously discriminated against profits from sales on the home market .

I was involved in 1977-78, as head of IDA Ireland’s planning team, with colleagues from the Department of Industry and Commerce, at numerous meetings in Brussels with other member states representatives, which were intended to effectively pressurise Ireland to end its low tax regime. These meetings were chaired and driven by the self same EU Competition Directorate which issued this week’s Apple ruling.

We concentrated on negotiating a transition period for the phasing out of the export profits sales relief over a two year period and a commitment that existing companies could retain this tax relief for a limited period .

As far as the Competition Directorate - and our competitor countries in the EU -were concerned, that was the end of Ireland’s low tax regime .

Ireland did get the two years 1979-1980 to phase out the exports tax relief and agreed to cease offering it from January 1981.

However, Ireland surprised the EU by introducing from that date a new low 10 per cent tax for all manufacturing industry which did not discriminate between profits from home or export sales and was not within the competence of the EU Commission to control . So, Ireland escaped the clutches of the EU Commission at that time .

That original 10 per cent tax rate for manufacturing then evolved into 10 per cent for all trading companies and most recently was increased to 12.5 per cent .

The Irish approach has proved to be highly successful in attracting the leading companies of the world , primarily , American companies and this is undoubtedly the source of considerable envy among some member states .

It also symbolises the failure of the EU Commission’s aspirations for a European industrial policy promoting global leaders in new technology since the US companies dominate the new digital industries and again Ireland is the European base for most of them - another source of EU irritation .

For all these reasons, Ireland has been at the butt end of criticism in recent years for its low tax rate of 12.5 per cent, even though it is long established and perfectly legal.

The attempts to tar Ireland with a “ tax haven “ label is also nasty since we have none of the characteristics of a tax haven . Indeed, at the same time most member States have been lowering their rates - the UK is now headed for an 18 per cent tax rate .

So given the Commission’s frustration in not having competence over corporate taxes , they have sought another device to get power over corporate taxes .

As recently as 2013, they decided to reach into the tax rulings which Revenue Authorities make regularly on the application of taxes to different activities .This is stretching their mandate in a dangerous and provocative way in the hope of making a case that this ruling or that ruling gave an unfair advantage to a company over others .

So they now have assumed the right to double guess every Revenue ruling .

In the case of Ireland and Apple , as the company moved out of the zero exports tax regime , the Irish Revenue Commissioners had to make rulings on the application of the new 10 per cent to the company’s activities and it is these rulings going back to 1991 which the Commission has now concluded were illegal State Aids.

Those who are familiar with the operations of the Irish Revenue always knew that there was never a so called “ sweetheart deal “ with Apple and know that they implement the tax law independent of Government or IDA Ireland .

The Revenue Authorities - Chairman Niall Cody and Eamon O’Dea , Head of its International Division - have made it clear that they applied Irish tax law and that the profits of non resident companies such as certain Apple entities cannot be charged with Irish tax under Irish law .

It is really disappointing that so much public comment in Ireland appears dismissive of the definitive statements of the Irish Revenue , who carry great respect , while embracing the one -sided and quite offensive presentation of Commissioner Vestager . There is no basis for her assertion that Ireland deliberatively gave illegal preferential tax treatment to Apple .

The implications of all this are very disturbing for Ireland’s foreign investment programme . It is seeking to rake back over 25 years of tax rulings in the case of Ireland and Apple using in the words of the US Treasury “previously unarticulated theories as to why its member states’ generally available tax rulings may constitute impermissible State aid in particular cases”.

It puts a question mark over all tax rulings for decades past and introduces a new uncertainty now and into the future. Ireland which is more dependant on foreign direct investment than any other member state has most to lose.

I am shocked to hear so much of the debate in Ireland about how we can get our hands on the Apple money. That is “ fools gold “ because of the consequences for our economy of not fighting all the way to the European Courts this politically driven decision by the European Commission. It is in Irelands vital national interest that we do so .

Padraic White was chief executive of IDA Ireland between 1980 and 1990.