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Apple tax ruling makes Silicon Valley’s nightmare less scary

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It wasn’t meant to be like this for Margrethe Vestager, the European Union competition chief who’s made a name for herself as Silicon Valley’s worst nightmare.

Her order for Apple Inc. to pay back a record 13 billion-euros ($14.9 billion) in state aid from Ireland in 2016 sealed her reputation as the world’s most feared antitrust enforcer.

But the iPhone maker’s court victory on July 15, toppling the decision, risks leaving her crusade against unfair tax deals in tatters. It follows separate criticism that huge EU antitrust fines for Google have made little difference.

How she reacts now will define her attempts to ensure some of the world’s top companies pay their fair share of tax and that U.S. tech giants don’t abuse their power as they grow ever more dominant.

“This is a painful defeat” for Vestager after she “made tax rulings under state-aid rules a priority,” said Annabelle Lepiece, a lawyer at CMS, noting that this week’s reversal comes “hot on the heels” of another defeat involving Starbucks Corp.’s tax treatment in the Netherlands.

While she’s been depicted on social media caricatures as an ax-wielding Viking warrior, Vestager is a mild-mannered Dane who calmly bats off angry presidential tweets and Apple Chief Executive Officer Tim Cook’s complaints that her decisions are “political crap.”

Fair treatment

Her motive, she says repeatedly, is to ensure fair treatment and to ensure all companies face the same tax rules. Her method was to deploy EU state-aid laws to go after secretive preferential agreements that big businesses often reach with tax authorities.

“The only comfort here is that the court agrees with us that we can use state-aid tools to look at fiscal state aid as well,” Vestager said in an online event on Thursday. “It was never so that state aid, too, will give us tax justice as such. Of course, we need to change legislation and implement it.”

A crack team of EU antitrust investigators, known as the tax-planning task force, has targeted Amazon.com Inc., Starbucks, Nike Inc. and Ikea for fiscal deals — known as tax rulings — they reached with Luxembourg or the Netherlands.

Along with Ireland, where Apple’s European headquarters are, the three countries have attracted many multinationals that shift profits across units. Ireland especially has become a favorite for U.S. tech giants, attracted by a low corporate tax rate that’s often criticized by bigger European countries.

What seemed like Vestager’s master stroke was to attack individual companies’ taxation arrangements and push countries to change tax rules. She extracted progress that years of EU governments had failed to achieve. Until recently, tax was a taboo issue among EU nations, with any of them — often Ireland or the U.K. — able to threaten a veto to any effort to push for more uniform tax rates or treatment.

Despite the defeat, Vestager vowed not to give in on taxes — even though she didn’t say whether the commission would take up its right to appeal.

Her team “will continue to look at aggressive tax planning measures under EU state-aid rules to assess whether they result in illegal” subsidies, she said in a statement soon after the judgment.

“If member states give certain multinational companies tax advantages not available to their rivals, this harms fair competition in the EU,” she said. “It also deprives the public purse and citizens of funds for much needed investments — the need for which is even more acute during times of crisis.”

The court ruling forces the EU to make some hard choices. Winning an appeal could be tough after the lower court cited multiple errors in its work. It could try to re-investigate Apple’s tax affairs in Ireland to fix those errors. But that might not allow it to claim another massive back-tax order.

Regulators failed to prove that Apple’s tax treatment by Ireland was an unfair subsidy and were wrong to find Apple’s Irish branches were responsible for profits it made in Europe, the EU court said. It was apparent, judges pointed out, that research and development, strategies for new products and distribution in Europe were led out of Apple’s Cupertino headquarters in California.

That means the profits attributed to the Irish branches — the profits used to calculate some 13 billion euros in unpaid tax — may be far lower and any new repayment order may not catch quite so many headlines. EU officials may also have to work harder to show that tax arrangements breach subsidy rules.

Lawyers pointed to some crumbs of comfort following the ruling.

While the judgment is “a major setback for the commission” it “does not generally question its approach to tax rulings or fiscal state aid,” said Alfonso Lamadrid, a Brussels-based lawyer at Garrigues. “Going forward, however, it will need to carry out a more in-depth analysis of all relevant circumstances and avoid relying on presumptions.”

Much harder

The court sets a high burden of evidence for regulators to prove that a tax measure breaches state-aid rules, said Totis Kotsonis, a lawyer at Pinsent Masons. But that doesn’t mean the fight against unfair tax arrangements will go away.

“It simply has become much harder,” he said.

Meanwhile Vestager keeps up the drumbeat on taxation and fair treatment, calling for governments to ban financial support to businesses based in tax havens, potentially shutting them out of some 3 trillion euros in aid being doled out during the pandemic.

Her job policing subsidies “needs to go hand in hand with a change in corporate philosophies and the right legislation to address loopholes and ensure transparency,” she said. “We have made a lot of progress already at national, European and global levels.”

Bloomberg News