The European Commission spectacularly determined that Ireland had given Apple illegal ‘State aid’ almost 2 years ago (reported by Reuters on 27.9.2016). The Commission ordered Ireland to recover the enormous sum of €13.1b plus interest (now €1.2b). I covered this in the Tax Technical article appearing in the September 2016 Tax Month.

Ireland, however, sided with Apple, defending the legality of its arrangements with Apple (as not illegal State aid). It signalled that it would appeal the Commission’s determination.

In October 2017, the Commission announced its intention to launch infringement proceedings against Ireland over the recovery of the alleged Apple State Aid.

However, in Q2 & Q3 of (calendar) 2018, Apple completed the task of depositing €14.3b into a specially arranged Escrow Fund – representing another significant development in this saga.

On 18 September 2018, Ireland’s Finance Minister: Paschal Donohoe, confirmed this that payment was complete – in announcement on his website. He also confirmed the following.

  1. The very significant task of collecting, investing and controlling such a large sum was achieved in calendar 2018. On 7 March 2018, the ‘escrow agency’ and ‘custodian services’ tenderers were selected and announced. On 23 March 2018, the investment managers were announced. On 24 April 2018, the Escrow Framework Deed was finalised. And, on 18 May 2018 the collection of this money, from Apple, commenced.
  2. The Ireland Government has always been committed to complying with the binding legal obligations, the Commission’s Final Decision places on Ireland, notwithstanding the appeal Ireland is taking, against the Commission in this Apple State Aid case.
  3. Ireland is pursuing its appeal before the European Courts, in the form of an application to the General Court of the European Union (General Court), asking it to annul the Decision of the Commission. The case has been granted priority status and is progressing through the various stages of private written proceedings before the General Court. It is at the discretion of the Court to determine if there will be oral proceedings, either in public or in private [though, the fact that such a momentous case could be determined in private, is ‘gobsmacking’ to those  used to English style of open justice decided in public]. It will likely be several years before the matter is ultimately settled by the European Courts.

FJM 23.9.18

[Irish Minister’s website: Media Release; Reuters: News Article; LTN 182, 20/9/18; Tax Month – September 2018]

 

CPD questions (answers available)

  1. Was the highly contentious role of Ireland, in Apple’s ‘stateless’ untaxed profits, brought to a head, by Apple’s €14.3b liability to Ireland, under Irelands tax laws?
  2. Has Ireland accepted this massive windfall of tax revenue?
  3. Was the collection, investment and legal rights, surrounding this sum, completed in calendar 2018?

[Answers:1.no(allegedStateAidIllegalUnderEUlaw);

2.no(itDoesNotAcceptThatItGaveAppleIllegalStateAidAndIsAppealingTheCommission’sDetermination);3.yes]

 

 

 

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